The unpublished opinions from the following cases can be viewed by visiting the Judicial Council Web site. The unpublished opinions remain on the Judicial Council Web site for 60 days from the date of the filing of the opinion.

DECEMBER 2010

Brisbois, Patricia (counsel for Moreno) & Larson, Eric (counsel for Boniface) — People v. Moreno, et al. — Conspiracy; Sentencing; Correction fo Abstract of Judgment
Court of Appeal reverses defendants’ convictions for criminal conspiracy (Pen. Code, § 182) finding there was insufficient evidence defendants obstructed justice. Defendants were charged with criminal conspiracy within the meaning of section 182, which includes acts committed with the purpose “to pervert or obstruct justice, or the due administration of the laws.” The charges were based on defendants acts in avoiding arrest by private bail recovery agents. The Court of Appeal reversed, finding the agents were not public officials and were not acting in furtherance of any official obligation or public duty. In addition, the Court of Appeal corrected defendant Moreno’s sentence to reflect 25 years to life, rather than the 27 years to life imposed. The court remanded the matter to the trial court to determine whether defendant Moreno had been sentenced on the primary offense, and if not, ordered the trial court to stay execution of Moreno’s on-bail enhancement sentence. The court also corrected defendant Boniface’s abstract of judgment and minute order which erroneously reflected sentencing under section 667.61, the One Strike Law, only applicable to certain sex offenders. (I) LKH

Vento, Christine — People v. Lopez, D055697 — Ex post facto; Penal Code Section 654
Defendant was convicted of evading a police officer causing death (Veh. Code, § 2800.3) and related offenses. The Court of Appeal found appellant’s sentence violated the ex post facto proscription, because he was sentenced under the harsher 2009 version of section 2800.3 in effect at the time of sentencing, rather than the version in effect at the time of the 2004 offense. The court also found Penal Code section 654 precluded separate terms for evading a police officer and driving on the wrong side of a divided highway, where the acts were overlapping and committed for the single purpose of evading apprehension. (I) NFA

Pfeiffer, Richard — People v. McKee, D055878 — Sexually Violent Predator Act (SVP)
Reversal of SVP determination and remand to consider appellant’s argument that disparate treatment of SVPs as compared to Mentally Disordered Offenders and those found not guilty by reason of insanity violates equal protection. (I) DKR

Beugen, Heather — In re D.M., D055963 — Insufficiency of Evidence
Minor is 12 years old; he suffered three different true findings arising from minor’s conduct with a 10-year-old friend: a violation of Penal Code sections 288a, subdivision (c)(2), 667.9, subdivision (a) [forcible oral copulation, with enhancement based on minor’s knowledge victim was developmentally disabled], a violation of Penal Code section 288, subdivision (b)(1) [forcible lewd act on a child under 14 years of age], and a violation of Penal Code section 288, subdivision (a) [nonforcible lewd act on a child under 14 years of age]. Based on the evidence presented, the reviewing court found that while shopping with their mothers, minor exposed himself to his friend upon the friend’s request and then minor’s friend placed his mouth on minor’s genitals upon minor’s request. Because there was no evidence minor made any direct or implied threat, the court found insufficient evidence of duress. Further because there was no evidence of sexual precociousness, sexual arousal or clandestine activity, there was insufficient evidence the acts were committed with the specific intent to arouse the sexual desire of minor or his friend. (A) CBM

Macina, Al — In re V.S., D055990 — Insufficiency of Evidence
Judgment reversed where there was insufficient evidence minor knowingly received or withheld stolen property (bicycle), where minor was present and riding a skateboard when the bicycle thief was apprehended, but minor was not present when the bicycle was taken. Further, there was no showing the skateboard belonged to the bicycle thief or that the bicycle thief needed appellant to ride the skateboard while the thief rode the bicycle. While the facts do show minor was aware an unidentified friend took the bicycle, such knowledge does not equal criminal liability as an aider and abettor. (A) CBM

Marshall, Greg — People v. Tolbert, D056075 — Improper Firearm Enhancement; Insufficiency of Evidence; Penal Code Section 654
Court of Appeal reversed a four-year gun use enhancement imposed erroneously on one count after the jury found it not true, reversed two great bodily injury enhancements for insufficient evidence where the victims were shot but not struck by bullets, and stayed two counts of assault based on the same conduct as the primary offense of attempted murder as to the same victim. (I) NFA

Romero, Lynda — People v. Sandrock, D056242 — Penal Code Section 654; Custody Credits; Correction of Abstract of Judgment
Court erred in punishing appellant for both burglary and possession of a shotgun, because the object of the burglary was to steal firearms. Count 4 is therefore stayed. Defendant is entitled to three more days of credits and abstract is corrected to reflect that the restitution is joint and several. (I) AMJ

Bauguess, Susan — People v. Aguayo, D056271 — Instructional Error
Appellant moved for acquittal on an attempted robbery charge at the close of the prosecution case on the basis that there was no evidence he was the person who reached into the victim’s pocket. The prosecution countered that it was proceeding on an aiding and abetting theory, and the court denied the motion. The court did not, however, instruct the jury on aiding and abetting liability. On appeal, appellant contended the court’s failure constituted reversible error. Respondent conceded the instructional error, but maintained it was harmless under Chapman v. California. The appellate court disagreed and reversed the judgment on attempted robbery. Without instructions that described the requirements for imposing aiding and abetting liability, the jury would not have known the prosecution had to show appellant had knowledge of the perpetrator’s intent to steal from the victim and intended to assist the perpetrator in committing the robbery. (Court’s italics) (I) HCC

Hart, Mar — People v. Williams, D057205 — Probation Condition
The portion of the trial court’s order prohibiting appellant from owning, possessing, or having under his control any “deadly weapon or related paraphernalia” was found to be in excess of the court’s jurisdiction, and that portion was stricken. (I) LAR

Mallinger, Kathleen — In re B.F., D057506 — Release of Psychological Evaluations
Appellate court reversed juvenile court’s order granting Welfare and Institutions Code section 827 petition brought by de facto parents. Order had allowed release of mother's court-ordered psychological evaluation. Appellate court found juvenile court elevated de facto parents' interests to those of the parents, failed to consider the mother's interests, and concluded without basis that children's interests required disclosure of evaluation. (I) ACS

Matsumoto, Ellen — People v. Wehry, D058083 — Insufficiency of Evidence
Court of Appeal found insufficient evidence for a second count of Penal Code section 288, where defendant went to a single sting house after emailing a single minor about a lewd act. (I) JLP

Wrubel, Sharon — People v. Jones, E048437 — Parole Revocation Fine
Appellant contended, respondent conceded, and the court agreed that a $200 parole revocation fine (Pen. Code, § 1202.45) was erroneously imposed at sentencing and must be stricken, given that appellant’s sentence of life without the possibility of parole for the felony murder does not include the possibility of parole. (I) HCC

Stanton, Marta — People v. Christiana, E048681 — Insufficiency of Evidence (re Involuntary Administration of Psychotropic Medication)
Court of Appeal reversed trial court order authorizing the involuntary administration of psychotropic medication to appellant (Pen. Code, § 1370, subd. (a)(2)(B)(III)). Appellate court concluded there was insufficient evidence the medication is both substantially likely to render appellant competent to stand trial and substantially unlikely to have side effects that would interfere with his ability to assist counsel. Here, the expert’s testimony was too generic, because they testified about antipsychotic drugs as a class, rather than identifying which drugs would be used to treat appellant. (I) LKH

Kraft, Rudy — People v. Lewis, E049101 — SVP
The Court of Appeal remanded the action to the trial court for a determination as to whether sufficient constitutional justification has been shown for treating appellantant as an SVP differently than as a mentally disordered offender or one found not guilty by reason of insanity, but such remand is with directions that the trial court suspend all proceedings in the instant case, pending finality of the proceedings in People v. McKee (2010) 47 Cal.4th 1172. (I) HCC

Christiansen, Mark — People v. Frasier, E049203 — Restitution Fine
Attorney General conceded and Court of Appeal agreed that the trial court erred when it ordered appellant to pay a $60,000 restitution fine under Penal Code section 1202.4 and an equivalent, but stayed, $60,000 parole revocation restitution fine under Penal Code section 1202.45. Because it was clear the trial court intended to impose the maximum amount of these fines as possible, the Court of Appeal reduced each to $10,000. (I) CBM

Somers, Robert — People v. Curiel, E049312 — Probation Conditions
Court found three probation conditions unconstitutional. It ordered a knowledge element added into two conditions condition and ordered another condition, requiring preapproval from probation officer to move, to be stricken. (I) JLP

Yockelson, Alan — People v. Carter, E049455 — Penal Code Section 654
The Attorney General conceded and the Court of Appeal agreed that appellant’s concurrent sentence for receiving stolen property must be stayed pursuant to Penal Code section 654, when appellant has also been sentenced for a burglary based upon the same course of conduct. (I) APJ

Owen, Thomas — People v. Griffith, E050130 — Crime Prevention Fee
Appellant was convicted inter alia of attempted robbery attempted carjacking. He argued, respondent conceded, and the court agreed that no crime prevention fee could have been lawfully imposed, because none of defendant’s current convictions is listed in Penal Code section 1202.5. Though the statute applies to robbery and carjacking, it does not state that it applies to attempts to commit these crimes. (Pen. Code, § 1202.5, subd. (a).) (I) HCC

Sheehy, Kevin — People v. Hernandez, E050184 — Penal Code Section 654
Attorney General conceded and Court of Appeal ordered assault with deadly weapon and possession of cocaine while armed counts stayed under Penal Code section 654, where the defendant already had been punished for attempted murder and transporting cocaine. (I) JLP

Klair, Leonard — People v. Hoover — Penal Code Section 654
Court ordered punishment stayed for being a gang member in possession of a firearm, where he already was punished for being a felon in possession of a firearm. (I) JLP

Ferguson, Susan — People v. Pendergist, E050269 — Inability to Pay
In response to appellant’s argument that the trial court erred in denying appellant’s motion to vacate fines and fees due to appellant’s inability to pay, the Court of Appeal agreed that the trial court failed to make a proper determination of appellant’s ability to pay. Appellant filed the motion to vacate fines and fees several years after appellant had been granted probation under a plea agreement. Because Penal Code section 1203.1b, subdivision (f), allows a probationer to seek review of ability to pay based upon changed circumstances, the Court of Appeal rejected the Attorney General’s arguments that a certificate of probable cause is required and/or the issue is forfeited by failure to object when fines and fees were imposed.. (A) APJ

Greenberg, Mark — People v. Coria, E050350 — Penal Code Section 1538.5 (People’s Appeal)
The superior court granted defendant’s motion to suppress evidence and dismissed the case. The People appealed. At the hearing on the motion to suppress, the officer claimed that he stopped defendant’s vehicle because of a hanging air freshener. There was no evidence that the air freshener obstructed the driver’s view. The trial court granted the motion to suppress for various reasons which the People challenge on appeal. In his brief, counsel for defendant/respondent focused the issue on the single most valid ground for granting the motion (no evidence of obstructed view). The Court of Appeal agreed that this was a valid ground for granting the motion to suppress and affirmed the dismissal. (I) APJ

Ward, Paul — In re J.L. G040507 — Jury Trial (re Juvenile Residency Restrcition — Jessica’s Law).
The juvenile court found the minor committed four lewd and lascivious acts in violation of Penal Code section 288, subdivision (a). As a result of the adjudications, and pursuant to Jessica's Law (Prop. 83), the minor would be required to register as a sex offender for the rest of his life, and faced lifetime residency restrictions. He was also potentially exposed to a civil commitment as a sexually violent predator. The minor argued on appeal that these consequences were so dire that due process and equal protection required he be afforded a jury trial before they could be imposed. In this published reversal, the court agreed and found that the lifetime residency restrictions minor faces as a result of his juvenile adjudication are punitive in nature. Because they are so punitive, the state must provide a jury trial before imposing those consequences. Thus the denial of the right to a jury trial in these circumstances violated due process and the requirement of equal protection. The minor also argued he should have received a jury trial on his actual sex offense adjudication because it subjected him to sex-offender registration and potentially exposed him to SVPA civil commitment proceedings. The court disagreed, however. Citing to People v. Nguyen (2009) 46 Cal.4th 1007, 1021-1022, the court opined that the “mere possibility that future SVPA civil commitment proceedings someday may arise following a juvenile adjudication is too speculative to constitute by itself a deprivation of constitutional dimension requiring community participation in the form of a jury trial.” The court noted that the California Supreme Court has concluded sex-offender registration is not punitive, but rather is regulatory in nature (People v. Castellanos (1999) 21 Cal.4th 785, 796), and SVPA proceedings are for the purpose of treatment, not punishment; so neither of these dispositional consequences warrant a jury trial as a matter of due process or equal protection. (I) LAR

Larson, Eric — People v. Nelson, G041677 — Insufficiency of Evidence
First degree murder conviction reversed for insufficient evidence where defendant tried under aiding and abetting and natural and probable consequences doctrine, where no evidence supports prosecution theory that appellant gave a key to perpetrator to obtain murder weapon and where no evidence exists that appellant anticipated anything beyond a fistfight in dispute with victim. (I) DKR

Hillberg, Marylou — People v. Morgutia, G042007 — Upper Term; Ineffective Assistance of Counsel
Judgment reversed and the matter remanded for resentencing. Trial court reasons for imposing upper term deemed invalid; trial counsel ineffective for not objecting, and, had he done so, it may have cured the error. (I) AMJ

Schwartzberg, Richard — People v. Branch, G042865 — Insufficiency of Evidence; Penal Code Section 4019
Appellant was convicted of offenses including driving with blood-alcohol in excess of .08% (Veh. Code, § 23152, subd. (b)). The Court of Appeal found the evidence was insufficient to infer appellant’s blood alcohol percentage where over three hours elapsed between the driving and the blood draw producing reading of .32% and where the prosecution’s forensic witness testified he could not estimate with any certainty appellant’s blood-alcohol at the time of driving. The court also awarded enhanced presentence conduct credits under amended Penal Code section 4019. (I) NFA

NOVEMBER 2010

Bowman, Elisabeth — People v. Markham, D056185 — Fines and Fees
The trial court failed to set forth the statutory bases of the fines and fees it ordered as part of the grant of probation. The court ordered a total sum without specifying amounts for various fines and fees. Because there was no way for appellant to determine whether the driving under the influence fine was within the authorized statutory range, the Court of Appeal found this was a legal error and not forfeited even though appellant had failed to object at sentencing. The case was remanded to the trial court for preparation of an amended probation minute order specifying the statutory bases for all fines, fees, and penalties imposed. (A) BCT

Castillo, Irma — People v. Agnew, D056495 — Abstract of Judgment
Attorney General conceded and Court of Appeal ordered abstract be corrected to omit staying of Penal Code section 12022.7 enhancement, which never was alleged or found true. (I) JLP

Matthews, Victoria — People v. Oliver, D056505 — Restitution Fine; Penal Code Section 654
Appellant argued and the People conceded the trial court erred at sentencing following revocation of probation by imposing a $600 restitution fine under section 1202.4, subdivision (b). The $600 fine was not warranted, because the initial $200 restitution fine imposed when probation was granted survived the revocation of probation. Appellant also argued, and the People again conceded, that section 654 applied to appellant’s convictions for assault with a deadly weapon and driving under the influence with injury, because the drunk driving with injury conviction was based on the same act and objective as the assault with a deadly weapon conviction. (S)

Wells, Mary — People v. Keith, D056598 — Custody Credits
Court of Appeal agreed with appellant that Penal Code section 2900.5 required credits be awarded from the date of the underlying in-prison conduct subject to the conviction, rather than from the date of arraignment. (I) JLP

Matthews, Victoria — People v. Thornton, D056846 — Ineffective Assistance of Counsel
Appellant was charged with robbery and petty theft with three priors. The court gave an indicated sentenced, and trial counsel had appellant “plead to the sheet,” to both counts. In a collateral habeas corpus to the superior court, counsel argued that trial counsel had been ineffective by having the defendant either plead to the lesser included petty theft or take any other action to have the lesser included offense stricken. The superior court agreed and ordered the conviction of the felony petty theft stricken. (S)

Forrey-Baker, Lelah — In re Nevaeh A., D056894 — Indian Child Welfare Act (ICWA)
Appellate court reversed based on juvenile court’s failure to comply with the inquiry and notice requirements of the ICWA. Both parents had testified to specific Indian heritage in their backgrounds (Cherokee and Sioux), and the court found this information “sufficiently reliable to warrant a further ‘look.’” There was no evidence the agency made any further inquiry. (I) ACS

Booher, Robert — People v. Green, E048814 — Penal Code Section 654
Trial court erred in not imposing a Penal Code section 654 stay where defendant was convicted of robbery and assault with a deadly weapon arising from the same incident because defendant had a single objective. (A) AMJ

Larson, Eric — People v. Medel, E049106 — Sentencing; Abstract of Judgment; Custody Credits
Sentence on two counts of unlawful oral copulation (Pen. Code, §269, subd. (a)(4)) reversed, because the trial court erred in finding they were committed on separate occasions and imposing mandatory consecutive sentences for them under Penal Code section 667.6, subdivision (d). Matter remanded to allow the trial court to exercise its discretion under section 667.6, subdivision (c) in determining whether these two counts should be served concurrently or consecutively. Abstract of judgment also ordered corrected in several respects, and presentence custody credits recalculated. (I) PED

Nelson, Laurel — People v. Alcantara, E049158 — Probation Conditions
Several probation conditions modified to limit them to "knowing" violations. Also, condition preventing defendant convicted of a lewd act on a child from possessing children's clothing was stricken, because appellant is the parent of a small child. (I) NFA

Washington, Suzanne — In re Z.F., E049798 — Educational Needs; Felony-Misdemeanor Determination; Maximum Period of Confinement
Matter remanded for the trial court to do the following: (1) Make required findings and orders as to minor’s educational needs (2) Designate on record whether offense was a felony or misdemeanor (3) properly calculate minor’s maximum period of confinement. (A) MCR

Duxbury, Brett — People v. Bassett, E049864 — Multiplious Convictions
Conviction for continuous sexual abuse must be reversed, because the People failed to charge that offense and the aggravated sexual assault by sexual penetration count in the alternative, and those two offenses temporarily overlapped. (I) AMJ

Clark, Marcia — People v. Gispanski, E049919 — Abuse of Discretion
After jury trial, three days before the scheduled sentencing hearing, defense counsel filed a written request for a continuance. Counsel’s motion stated, among other things, that he had uncovered information that one of the jurors had spoken to a defense witness in the hallway during the trial; counsel needed more time to investigate the matter and to file a motion to unseal juror information. In addition, counsel had not yet received the probation report. On the day of sentencing, counsel informed the court that he had only just received the probation report and had not yet had a chance to review it. The court directed counsel to read the report as the hearing was being conducted. As to the written continuance motion, the court denied the motion, stating there was “no reason” for a continuance, notwithstanding the court’s admission that it had neither received nor reviewed the moving papers. Appellant contended the trial court abused its discretion in refusing to allow counsel time to read and review the probation report, which had just been provided to counsel on the day of the sentencing hearing and without having so much as reading the moving papers or ascertaining the basis of the request (possible juror misconduct). The Court of Appeal agreed, reversed the judgment, and directed the trial court to permit defense counsel to investigate the ground of juror misconduct and to determine whether to bring a new trial motion on that ground. If no new trial motion is brought timely, or if it is denied, then the judgment may be reinstated, upon proper determination and correct calculation of any victim restitution orders, custody credits, or other matters pertaining to sentencing. (I) HCC

Tripp, Pamela — In re Lily M., E050083 — Unauthorized Delegation
Father argued, and the Court of Appeal agreed, the visitation order which allowed visitation only if the 16-year-old child consented was an unauthorized delegation of judicial authority. The appellate court found the trial court would be justified in denying father any visitation based on his conduct in the case, but conditioning the visits on the child’s consent was improper. (I) LLF

Kopas, Marleigh — People v. Martinez, G040035 — Ineffective Assistance of Counsel
Court of Appeal issued order to show cause returnable to the superior court, after finding prima facie case of ineffective assistance of counsel because the facts presented left unclear that counsel’s decision not to call a defense expert was reasonable and informed based on reasonable investigation and preparation. (I) JLP

Stockwell, Sarah — People v. Newman, G042388 — Probation Conditions; Fees
Court of Appeal reversed probation conditions requiring appellant to receive approval from the probation officer before moving residences and not to associate with anyone disapproved by the probation officer. Additionally, the Court of Appeal ordered a driving under the influence penalty under Penal Code section 1463.14, subdivision (b), stricken, after finding the court verbally had only ordered mandatory fees and this fee was not mandatory (A) JLP

Dressner, Tracy — People v. Osuna, G041029 — Insufficiency of Evidence
Appellant’s conviction for child homicide under Penal Code section 273ab reversed for insufficient evidence of requisite mental state and conviction of second degree murder under Penal Code section 187, subdivision (a) reduced to involuntary manslaughter pursuant to authority granted to reviewing court under Penal Code section 1181 and 1260. (I) DKR

Nichols, Diane — People v. Bennett, G041372 — Penal Code Section 654
Concurrent sentence imposed for transportation of a controlled substance ordered stayed pursuant to Penal Code section 654, because it was part of an indivisible course of conduct along with appellant’s robbery and felony murder conviction. (I) PED

Kraft, Rudy — People v. Rivera, G041517 — Penal Code Section 654
Appellant was convicted of involuntary manslaughter and one count of street terrorism. Court erred in not staying execution of sentence pursuant to section 654 for the street terrorism offense under Penal Code section 186.22, subdivision (a), because the single act of killing the victim was the basis for both the involuntary manslaughter and street terrorism convictions.
(I) LAR

Torres, Tanja — People v. Brown, G041947 — Custody Credits
Trial court mistakenly found that because appellant was convicted of a violent felony within the meaning of Penal Code sections 2933.1 and 667.5, subdivision (c), he was not entitled to presentence conduct credits. Accordingly, the trial court awarded only actual credits of 878 days. The Court of Appeal found appellant was entitled to 15% presentence conduct credits and remanded the case for determination of those credits. The court also corrected a 2-day mathematical miscalculation. (I) NFA

Scott, Patricia — People v. Bahena, G042539 — Instructional Error; Insufficiency of Evidence
Convictions for street terrorism and gang member in possession of a loaded firearm possession reversed. The trial court erred in instructing that the necessary felonious conduct to prove street terrorism could include the misdemeanor possession of the firearm. Defendant’s conduct cannot satisfy Penal Code section 186.22, subdivision (a)’s third element, felonious conduct, and then be used to elevate the otherwise misdemeanor offense to a felony. (I) AMJ

Pfeiffer, Richard — In re Connally, G042812 — Parole
After the Governor reversed grant of parole by the Board of Parole Hearings, the superior court granted defendant’s habeas corpus petition. The People appealed, and the Court of Appeal affirmed the grant of habeas relief, ordering defendant’s release on parole. Defendant had served 20 years on a second degree murder conviction based on driving under the influence. The Court of Appeal found the Governor’s reliance of several factors was either unsupported by the record or unconnected to appellant’s current dangerousness. (I) NFA

Hopkins, Ann — In re Anthony T., G042838 — Probation Conditions
Probation conditions that minor must be drug tested and that he pay for same and that he not knowingly be in the presence of any illegally armed person or persons in a street gang or crew or using, selling, possessing or under the influence of drugs are stricken, because they were not orally pronounce by the trial court. Conditions that minor attend school and work, regarding the community work condition, and the stay away order are to be modified to reflect correct pronouncement. (A) AMJ

Power, Richard — People v. Brown, G043019 — Instructional Error
Conviction for Penal Code section 266i, subdivision (a)(1) (procuring) reversed where the trial court instructed the jury upon and the prosecutor exclusively argued a factual scenario of section 266i, subdivision (a)(2) (pandering), with which defendant had not been charged. (I) MCR

Popper, Jamie — People v. Kim, G043314 — Penal Code Section 4019
Court of Appeal found amended Penal Code section 4019 should be retroactive to the non-final judgment in this case and ordered appellant receive an additional 506 days of custody credits. (A) JLP

Moller, Richard — People v. Cruz, G043564 — Penal Code Section 654
Judgment modified. Jury convicted defendant of assault with a deadly weapon and conspiracy to commit that assault. Three year sentence ordered on the assault, and two year concurrent sentence ordered on conspiracy conviction. Concurrent term violated Penal Code section 654 because there was no showing that the object of the conspiracy was any broader than commission of the underlying assault. Sentence ordered stayed. (I) AMJ

Crawford, James — People v. Lais, G043819 — Penal Code Section 4019
Writ of habeas corpus granted directing the superior court to amend the abstract of judgment to award retroactive pre-sentence custody credits pursuant to amended section Penal Code section 4019 on a case which was not final as of January 25, 2010. Petitioner filed initial petition in pro per, and counsel was appointed to file a supplemental petition. (I) PED

Baugess, Susan — People v. Engram, S176983 — Speedy Trial
California Supreme Court affirmed the decision of the Court of Appeal, upholding the dismissal of appellant’s Riverside burglary prosecution on statutory speedy trial grounds. The trial court dismissed the case under Penal Code section 1382 when, after numerous continuances, there was no courtroom available to try the case. The Attorney General argued 1) under Penal Code section 1050, giving calendar preference to criminal cases, the trial court should have commandeered a specialized civil courtroom designated for juvenile, family law or probate trials; and 2) if no courtroom was available, then the trial court should have found the delay was for “good cause” within the meaning of section 1382 and therefore refrained from dismissing the case. The Supreme Court rejected both arguments. As to the first argument, the court found the calendar preference provision of section 1050 was not absolute and that the Riverside courts had taken reasonable steps to effectuate the criminal trial calendar preference, thus fulfilling the mandate of the statute. As to the second argument, the court found chronic delay caused by failure of the state to provide adequate resources to bring cases to trial did not amount to “good cause” for delay under section 1382. The court noted that because the case had not been previously dismissed, the prosecution could re-file the case pursuant to Penal Code section 1387. (I) NFA

OCTOBER 2010

Smith, Barbara — People v. Montgomery, D054493 — Insufficiency of Evidence
Appellant did not dispute that a robbery occurred; rather, he argued there was insufficient evidence to corroborate an accomplice’s testimony that he was one of the robbers as well as evidence to support his conviction for conspiring to rob. The Attorney General addressed these counts in two paragraphs, arguing that the accomplice’s testimony proved every element of both crimes. Even assuming the truth of this argument, the Attorney General ignored the requirement that appellant’s convictions cannot be based solely on an accomplice’s testimony. Although the Attorney General acknowledged the need for corroborating evidence elsewhere in his brief, he generally cited other evidence without citations to the record or any analysis explaining how the cited evidence corroborated the testimony as to each count. Accordingly, the court searched the record for corroborating evidence. Although another accomplice also testified that appellant and co-defendant were the robbers, the court was required to eliminate this testimony from its consideration and examine the other evidence to determine if there is any inculpatory evidence tending to connect appellant to the conspiracy and the robbery. Searching for same, the court concluded there was insufficient corroborating evidence to support the convictions. (I) HCC

Fadem, David — In re J.J., D055603 — Probation Conditions
Minor appellant was convicted of receiving a stolen motorcycle and placed on probation. Conditions of probation included limits on appellant’s use of a computer. The conditions limited appellant’s computer use to schoolwork, precluded participation in social networks such as Facebook, MySpace, or chat rooms, and precluded use of a computer containing various types of malicious software. The Court of Appeal found the computer provisions unconstitutionally overbroad and found appellant could raise the claim for the first time on appeal because it was a pure question of constitutional law based on uncontested facts. The court struck the schoolwork-only ban and the social network ban and modified the malicious software ban to preclude only knowing use of such computers. (A) NFA

Devore, Mark — People v. Johnson, D055612 — Admission of Priors; Penal Code Section 654
Where appellant was not advised of any of his Boykin/Tahl/Yurko rights, including his right to trial before he admitted the sentencing enhancements, under People v. Mosby (2004) 33 Cal.4th 353, 362, no inference could be made that appellant knowingly and intelligently waived the rights. The court ordered appellant’s admissions set aside. Further, in light of the court’s unchallenged decision to strike the enhancement allegations, the court did not remand the matter to the trial court. Finally, the Attorney General conceded and the court agreed that appellant’s conviction for possession for sale of cocaine base must be stayed under Penal Code section 654, since appellant had the same intent and objective – to sell the cocaine base – and he was also convicted of sale of cocaine base arising from the same incident. (I) CBM

Capriola, William — People v. Aranda, D055701 — Instructional Error
Reversed in part. Trial court prejudicially erred in failing to instruct on reasonable doubt with regard to the gang offense, because no other instruction connected the reasonable doubt instruction as to that count as was done for another count. Further, because the jury acquitted defendant of the correctly instructed commission of a crime for the benefit of a street gang allegation, the court could not say that there is no reasonable possibility that the omission contributed to the gang offense conviction. (I) AMJ

Shetti, Siri — People v. Beverly, D055848 — Gang Enhancement
Court of Appeal ordered 10-year term for enhancement under Penal code section 186.22, subdivision (b), reduced to five years where underlying crime (assault) was proven to be serious felony, but not violent felony. (I) JLP

Wenzell, Lewis — People v. Trujillo, D056447 — Insufficiency of Evidence
The Court of Appeal agreed with appellant’s argument that the evidence was insufficient to support conviction of felony false personation. The evidence showed that appellant gave a false name to police, but did not take any further action to incur liability for the person falsely personated. Such conduct constitutes misdemeanor false personation and the Court of Appeal reduced the offense accordingly. (I) APJ

Webb, H. Reed — People v. Guillermo, D056463 — Sentencing
Sentence modified to reflect a concurrent term rather than a one-third midterm on count 13. (I) AMJ

Mallinger, Kathleen, for minor appellant; Suzanne Evans and Sahyeh Riopelle for parent respondents — In re Marie B., D057312 — Reunification Services
Denial of reunification services to father was not in the child’s best interests and was an abuse of discretion where mother who was aligned with, as well as married to father, who was receiving services. (I) CAG

Evans, Suzanne — In re A.L., D057412 — Parental Rights
In a prior appeal in which only the mother appeared, the court reversed the denial of her Welfare and Institutions Code section 388 petition and vacated the concurrent section Welfare and Institutions Code section 366.26 orders terminating parental rights. Thereafter, the minors requested the juvenile court reinstate the non-appealing father’s parental rights, but the court refused noting the father’s parental rights had not been reinstated by the reversal because he had not filed an appeal. The appellate court disagreed with this reasoning, noting the prior reversal restored the case and all of the parties back to the same position they had been before the section 388 petition was denied. Thus, father’s parental rights were reinstated by the reversal in the prior appeal. (I) LMF

Rogers, Tracy — People v. Cannon, E048124 — Custody Credits; Penal Code Section 654; Enhancement
Various sentencing errors corrected: Presentence credits totaling 474 days awarded; one count stayed pursuant to Penal Code section 654; one of two prior prison term enhancements (Pen. Code, § 667.5, subd. (b)) stricken, because only one continuous term was served. (I) NFA

Beugen, Heather — People v. Enriquez, E048344 — Instructional Error
Appellant was charged with making a criminal threat (Pen. Code, § 422) and street terrorism (Pen. Code, § 186.22, subd. (a)). The jury acquitted appellant of criminal threats, but convicted him of street terrorism. With regard to the street terrorism count, the jury was instructed that “felonious criminal conduct includes robbery, theft, assault, criminal threats, and homicide.” Court of Appeal reversed, finding prejudicial instructional error in failing to define each of these offenses and in including assault, a misdemeanor. (A) LKH

Costan, Charlotte — People v. Gil, E048653 — Insufficiency of Evidence
Conviction for possession of a sawed-off shotgun reversed, because there was not sufficient evidence to show appellant had dominion and control over the gun. (I) AMJ

Dodd, John (Kelly); Buckley, Stephen (Trongale) — People v. Kelly, E048797; People v. Trongale, E049245 — Victim Restitution
In a published reversal, the Court of Appeal held that the Recording Industry Association of America (RIAA), a trade association whose members are part of the music industry, was not a direct victim, because it was not the object of defendants’ crimes. The Court of Appeal reversed the lower court’s order that appellant and co-defendant Trongale pay RIAA $14,606.66. The actual crime was selling five counterfeit compact discs to an undercover police officer for $20. However, 1,927 compact discs were found in the barber shop where Kelly and co-defendant Trongale worked and the RIAA calculated a wholesale value of $7.58 for each, thus arriving at the $14,606.66 amount. In reaching its holding, the Court of Appeal distinguished People v. Ortiz (1997) 53 Cal.App.4th 791, 795-797, considered the effect of amended Penal Code section 1202.4, subdivision (r), effective January 1, 2009, and other state cases involving piracy prosecutions and restitution orders to RIAA. (I) BCT

Pirko, Johanna — In re N.R., E049030 — Felony/Misdemeanor Determination; Probation Condition
The Court of Appeal agreed with minor’s arguments that the case must be remanded for the court to exercise its discretion in determining whether the “wobbler” offense of receiving stolen property is a misdemeanor or felony in this case. The Court of Appeal also agreed that the probation condition prohibiting contact with controlled substances must be modified to include the concepts of illegality and knowledge of illegality. (A) APJ

Peabody, Jennifer — People v. Gsoell, E049088 — Minute Order Correction
Minute order must be corrected to accurately reflect the oral pronouncement of judgment – the trial court did not impose the enhancement on the second prison prior and the court did not impose victim restitution. (I) AMJ

Shevelson, Courtney — People v. Enriquez, E049129 — Parole Fine
Sentencing minute order and abstract of judgment incorrectly reflect a $5,000 parole revocation fine was imposed and suspended pending successful completion of parole. The documents are ordered corrected, because the trial court did not pronounce that order and appellant is serving a life term without possibility of parole to which such fine does not apply. (I) AMJ

Weinberg, Allen — People v. Salazar, E049245 — Security Fee
Trial court erred in imposing a $60 security fee, rather than a $30 fee, because appellant was convicted of a single offense. (I) AMJ

Macomber, Thomas — People v. Anderson, E049606 — Ability to Pay
The Attorney General conceded and the Court of Appeal agreed that there was insufficient evidence to support trial court’s implied finding that appellant was able to pay attorney fees in this case where appellant was sentenced to prison. In the interest of judicial economy, the Court of Appeal also concluded that there was insufficient evidence to support ability to pay costs of probation officer’s report. (A) APJ

Ihara, Patricia — People v. Romero, E049654 — Sentencing
This is the second appeal. In the first appeal, the case was remanded for the trial court to correct a number of sentencing errors. In this second appeal, the Court of Appeal again remanded the case for the trial court to correct the abstract of judgment and either strike or impose sentence for the prison prior. (I) LKH

Schwartzberg, Richard — People v. Duerbeck, E049675 — Dual Convictions
Appellant was convicted of unlawfully taking a vehicle (Pen. Code, § 10851, subd. (a)) and receiving a stolen vehicle (Pen. Code, § 496d, subd. (a)). The jury was instructed that both counts were alternative offenses. The Court of Appeal reversed appellant’s conviction for receiving a stolen vehicle which was based upon theft of the same property. (I) LKH

Rogers, Tracy — People v. Hunter, E049708 — Lesser Included Offense
Defendant was convicted of gross vehicular manslaughter while under the influence (count 1) and causing bodily injury while driving under the influence (DUI) with special finding that appellant personally inflicted great bodily injury on the victim (count 2). Court agreed that the count 2 DUI conviction with the allegation findings must be reversed, because count 2 is a lesser included offense of count 1. (Mod-A) LAR

Kosofsky, Syda — In re M.G., E049804 — Probation Condition
Probation condition prohibiting minor from associating with known gang member must be modified to include a definition of “gang.” (I) AMJ

Prince, Diana — Adoption of E.A., E050014 — Parental Rights
Mother successfully appealed judgment in favor of paternal grandmother’s petition to terminate mother’s rights to her two children. Their father was deceased. Grandmother, who had custody of the children, asserted that mother had failed to communicate or support her children for six months with the intent to abandon them. Appellate court held evidence supported neither a failure to communicate/support or an intent to abandon. (I) ACS

Randall, Michael; Barry, Leslie — In re C.B., E050209 — Interstate Compact on the Placement of Children (ICPC) (Dependency)
Certified for partial publication. Juvenile court allowed father to leave California with his children and agency appealed, contending juvenile court erred by placing them with father out of state without ICPC compliance. Appellate court rejected argument and held ICPC did not apply here regardless of whether father was an offending or non-offending parent. California courts have consistently followed view that ICPC provisions do not apply to an out of state placement with a parent. Court did stress, however, that conflicts with the laws of other states caused dysfunction, and it might be time for a multi-state legislative response. (I) ACS

Williams, Rex — People v. Jones, E050882 — Penal Code Section 4019 (Two-Tier)
The Court of Appeal agreed with appellant’s argument that the trial court erred when it calculated pre-sentence conduct credit based upon the law in effect when the actual custody time was served. Because some of appellant’s spent some days in custody before the modification of Penal Code section 4019 and some days in custody after the modification, a hybrid conduct credits award resulted. The Court of Appeal found that there was no authorization for such an award and the trial court was required to calculate conduct credits based upon the law in effect at the time of sentencing (i.e. the more favorable modified law). (I) APJ

Ting, Allison — People v. Mosley, G038379 — Sex Offender Registration
After Supreme Court’s remand to the Court of Appeal to reconsider its original decision in light of the Supreme Court’s opinion in In re E.J. (2010) 47 Cal.4th 1258, the Court of Appeal found In re E.J. did not affect its decision and again reversed appellant’s discretionary sex offender registration requirement. Specifically, it found sex offender registration’s residency requirement punitive and that the imposition of the requirement, therefore, could not stand, because it increased the penalty for appellant’s offense beyond the statutory maximum based on the jury verdict alone (see Apprendi v. New Jersey (2000) 530 U.S. 466, 490). (I) JLP

Greenebaum, Katherine — People v. Lelham, G042190 — Penal Code Section 654
Insufficient evidence supported the trial court’s determination appellant had different intents and objectives during the commission of the terrorist threat (Pen. Code, § 422) and the assault (Pen. Code, § 245) – committed while appellant attacked his friend. The one year consecutive sentence imposed for the assault count was ordered stayed. (I) CBM

Clark, Marcia — People v. Ledesma, G042332 — Unauthorized Sentence; Penal Code Section 654
Appellant was improperly sentenced after being convicted of attempted murder with a gang enhancement and firearm enhancement. The court sentenced appellant to 40 years to life, but struck the gang enhancement. The Court of Appeal remanded the case to the superior court to reconsider its sentencing options. In addition, the Court of Appeal agreed appellant’s sentence on count 2 for street terrorism should be stayed pursuant to section 654. (I) LKH

Erickson, Kristin — In re C.S., G042400 — Probation Conditions
Probation conditions are modified because they are unconstitutionally vague and overbroad. A knowledge element is added to the condition limiting his association with others under 12 years of age, possession of prohibited materials is limited to materials outside the classroom, and the condition limiting his use to the computer to school-related purposes is deleted, but the condition of computer use in a supervised setting remains. (I) AMJ

Clark, Marcia — People v. Hernandez, G042489 — Custody Credits
Appellant argued, Attorney General conceded, and the Court of Appeal agreed the trial court erred in finding appellant was ineligible for presentence conduct and work credits and ordered the trial court to calculate the correct number. (I) JLP

Wenzell, Lewis — People v. Valdez, G042837 — Great Bodily Injury Enhancement
Defendant was convicted of leaving the scene of an injury accident under the so-called hit-and-run statute (Veh. Code, § 20001), with a great bodily injury enhancement under Penal Code section 12022.7. In a published decision, the Court of Appeal held the great bodily injury enhancement does not apply to a violation of Vehicle Code section 20001 where the defendant’s failure to stay at the scene and render aid does not cause or exacerbate the victim’s injuries. The court reasoned that it is the flight from the scene, not the accident itself, that is unlawful, and, therefore, if the injury was caused solely by the accident, then the injury did not occur “in the commission of a felony,” as required by Penal Code section 12022.7. (I) NFA

Haggerty, Edward — People v. Daugherty, G042857 — People’s Appeal
People appealed trial court’s grant of probation. Counsel argued the appeal should be dismissed, because the People have no statutory right to appeal a grant of probation. Court of Appeal dismissed the appeal reasoning People should have petitioned for writ relief under Penal Code section 1238, subdivision (d). The court did not construe the People’s opening brief as a petition for writ of mandate, because it would have been denied as untimely, since the brief was filed after the 60-day time limit of section 1238, subdivision (d). (I) BCT

Rollo, Sharon — In re D.B., G043775-02 — Minute Order Correction
County Counsel conceded and court ordered that minute order should be corrected to reflect complete visitation order by court that permitted father’s visits to be monitored by visitation center staff member, rather than only a professional monitor. (I) JLP

Scott, Patricia — People v. Velderrain, G041703 — Sentencing; Abstract of Judgment Correction
Affirmed as modified. Trial court erroneously doubled the firearm enhancements attached to three counts under the “Three Strikes” law. As a result, reduced enhancements reduced the sentence from 50 years to life to 25 years to life on each count. The abstract of judgment was also corrected to reflect the court’s pronouncement of a stayed term on the fourth count, rather than a consecutive term. (I) AMJ

SEPTEMBER 2010

Frizzell, Doris — People v. Ruiz, D053520 — Continuing offenses, multiple convictions
Court of Appeal held appellant could only be convicted once for the continuing offense of being a felon in possession of a firearm where appellant was found to have been in possession of the same firearm on three occasions over a period of two weeks. Accordingly, the court struck two of three counts. (I) NFA

Schorr, Steven — People v. Taeotui, D054491 — Instructional Error and Sentence Error
Trial court prejudicially erred in failing to instruct on assault with a firearm as a lesser included offense of assault with a semiautomatic firearm. The court erred in staying a gang enhancement corresponding to the murder conviction. It is ordered stricken because it does not apply when the murder is punishable for life imprisonment without the possibility of parole due to a special circumstance finding. (I) AMJ

Norris, Ronda — People v. Groce, D055456 — Dual Convictions
The court agreed with appellant that subdivisions (a) [signs] and (d) [utters, passes, etc.] of section 470 do not define separate crimes, but rather alternate theories by which the same crime of forgery can be committed. Notwithstanding the commission of two acts, when the defendant falsely signs the document, as well as falsely passes the same document, absent a contrary directive from the Legislature, the single instrument/single forgery conviction principle applies. Counts 6 and 10 (subdivision (a) violations) are reversed, and convictions on counts 7 and 11 (subdivisions (d) violations) stand. (I) HCC

Herring, Conrad – In re Melvin M., D050286 – Burglary; Penal Code section 654
Court of Appeal reversed the true finding that minor committed residential burglary of his parents’ home because minor was a resident and had an unconditional possessory right to enter his own home. True finding of grand theft related to taking items from parents’ home sustained. Trial court also erred in failing to apply section 654 to burglary and grand theft of another residence. (I) BCT

Kling, Craig — People v. Wadley, D055687 — Probation Condition & Fines
Court of Appeal ordered amended probation condition prohibiting appellant from being within two blocks of an area designated by the probation officer as one of gang or criminal activity, after finding it unconstitutionally vague and overbroad. Also, the Court ordered the trial court to orally recite any fines to be imposed, because the trial court had not initially orally imposed a fine included as a condition of probation. (A) JLP

Simkin, Allison— People v. Zane, D055892 — Jury Instructions
Trial court prejudicially erred in failing to instruct jurors that convictions of Penal Code section 550, subdivision (b)(1) required a misrepresentation regard a material fact. Trial court also prejudicially erred in injecting a requirement of reasonableness into the mistake of fact instruction that applicable to a specific intent crime. (I) JLP

Derrick, John — People v. Joyner, D056091 — Fines
AG conceded and Court of Appeal agreed that trial court erred in imposing a new restitution fine and security fee at the time of sentencing after probation revocation. (A) JLP

Buckley, Christian - P v. Simmons; D056165 - Insufficiency of evidence as to forgery.
Defendant caused grant deeds to be recorded for six properties, each stating that Defendant was conveying the property to Sovereign Solomon Brothers Archbishop Corporation Sole. The grant deeds were signed by Defendant and notarized. Unfortunately, defendant did not own any of these properties. Defendant argued there was insufficient evidence to support his convictions for forgery, possessing a forged item, and conspiracy to commit forgery because defendant used his true name and valid signature was on the deeds, and the deeds themselves were authentic paper documents, covered and described actual properties, and purported to deed those properties to a real entity. Hence, the documents were very real and not forgeries. So, although the filing of the six grant deeds purporting to convey property he did not own constituted filing of false instruments (for which defendant was also convicted), they did not constitute forgery. AG and Court of Appeal agreed. (I) LAR

McPartland, Michael — People v. Anguiano, D057201 — Pleading and Proof
Appellant was found guilty of first degree murder and three counts of willful, deliberate, premeditated attempted murder. However, Penal Code section 664 requires that for attempted murder, willfulness, premeditation, and deliberation be pleaded and proved and found by the jury, which was not done. The Attorney General conceded the issue, and the Court of Appeal agreed. The sentences for the attempted murders were reversed and remanded. (I) HCC

McGowan, Jesse — In re Diamond R., D057226 — Disposition in domestic violence case
Mother argued, and the Court of Appeal agreed, the juvenile court erred in removing her 13-year-old and 10-year-old children from her home after father moved out, a restraining order was in place, and the maternal grandmother was available to live with the family to ensure mother’s compliance with the agency’s rules. The primary reason for dependency jurisdiction was domestic violence between the parents. The Court of Appeal rejected arguments that jurisdiction was not warranted for 16-year-old daughter and the trial court erred in requiring mother to comply with alcohol abuse treatment. (A) LLF

Lintvedt, Cathryn — People v. Robles, E048438 — Custody Credits
While the record indicated an order that defendant serve 90 days in an in-house rehabilitation program, the did not indicate how many actual days were served in such treatment. Defendant argued, the People conceded, and the court agreed that remand was necessary for the trial court to determine how many actual days of residential treatment had been served and to credit appellant with same. (I) HCC

Macomber, Thomas — People v. Crenshaw, E048837 — Probation Conditions
Court of Appeal orders condition requiring quarterly reports of expenditures stricken, the condition prohibiting appearance at a court building modified to fix overbreadth, and multiple conditions modified to include a knowledge requirement. (A) JLP

Boire, Richard — People v. Hamilton, E049377 — Prison Prior Term
Court ordered the time imposed on a prison prior term enhancement stricken because it served as the basis for imposing a 5-year serious felony enhancement. (I) AMJ

Moller, Richard Jay - P v. Morales, E049424 - credit miscalculation
Trial court shorted appellant 3 days of presentence custody credits.
(I) LAR

Williams, Rex– People v. Freund, E049702 – Fines
Government Code section 70373 fine was improperly imposed upon appellant’s revocation of probation and order to serve a prison sentence where appellant was convicted of the crime (via plea) four years before the code section was effective. (I) CBM

Matsumoto, Ellen — People v. Roblero, E049749 — Sentencing
Penal Code section 667.61 provides for a sentence of 15 years to life for certain sex offenses if the defendant “has been convicted in the present case or cases of committing an offense specified in subdivision (c) against more than one victim.” (Pen. Code, § 667.61, subd. (e)(5).) Defendant contended, and the People agreed, section 667.61 did not apply to counts 7 and 8, since, the offenses charged in count 7, nonforcible oral copulation (§ 288a, subd. (b)(1)), and count 8, nonforcible sexual penetration (§ 289, subd. (h)), are not listed in subdivision (c) of section 667.61. The court also agreed, and a remand for resentencing is necessary to correct the error. (I) HCC

Aslanian, Aida — In re J.M., E049982 — Reversal for ICWA error
Maternal grandmother reported Cherokee heritage and said she would find out the name of the relative who was Cherokee and call back the social worker. The social worker waited a week and than sent out the notices to the Cherokee tribes. The notices were missing birth places for the grandmother and mother. The appellate court concluded the social worker did not sufficiently inquire regarding heritage and should have contacted the grandmother before sending out the notices, and should have contacted the father, who was in prison, about his possible Indian heritage. Also, the notices did not contain information that was readily available to the social worker had she inquired. The order terminating parental rights was reversed and a limited remand was issued. (A) LMF

Brownell, Gordon – People v. Slaughter, G041573 – Instructional error
Two convictions for criminal threats reduced to attempted criminal threats because trial court failed to instruct on attempt as a lesser included offense but sufficient evidence exists in the record to support attempt. Great bodily injury enhancement on other crime reversed because evidence that bullet “grazed” scalp and caused “just a little” bleeding was insufficient. (I) DKR

Shudde, Athena – People v. Kim, G042216 – Sentencing errors
The judgment was modified to strike the consecutive 10-year gang enhancement for attempted premeditated murder in addition to the 15-year minimum parole eligibility penalty and to stay sentence for active gang participation under Penal Code section 654. (I) BCT

Clark, Marcia — People v. Hernandez, G042489 — Custody Credits
After concession by Attorney General, the Court of Appeal found trial court erred in finding appellant was ineligible for presentence conduct and work credits and ordered the trial court to calculate the correct number. (I) JLP

AUGUST 2010

Babcock, Russell — People v. Archer, D052978 — Compassionate Use Act
Appellant’s conviction for possession of marijuana (Health & Saf. Code, § 11357, subd. (a)) is reversed, where the trial court prejudicially erred in instructing the jury on the numerical limitations of marijuana he could lawfully possess. (I) LKH

Bookout, Randy — People v. Cravens, D054613 — Insufficiency of Evidence
Appellant hit the victim once with his fist which caused the victim to fall and hit his head on the pavement. The victim died as a result of the single impact, blunt-force head injury. The court found insufficient evidence of implied malice to support the second degree murder conviction. The issue then became whether the conviction should be reduced to voluntary or involuntary manslaughter which was dependant on the characterization of the single blow as either felony or misdemeanor assault. The court reasoned that assault by means of force likely to cause great bodily harm is properly considered an inherently dangerous felony for purposes of determining whether an unintentional killing during the commission of that felony is voluntary or involuntary manslaughter. The court concluded that an unintentional homicide, without malice, resulting from the commission of a felony assault by means of force likely to produce great bodily injury constitutes voluntary manslaughter. (I) BCT

Larson, Eric — People v. Troncoso, D054675 — Sentencing
Appellant was convicted of multiple counts related to possession for sale, conspiracy, and transporting large quantities of cocaine on two occasions from Mexico to Los Angeles for a drug cartel. The court reversed four convictions which had been stayed, because they were lesser included offenses. The court also found the trial court prejudicially erred in failing to sua sponte instruct regarding the number of conspiracies (CALJIC No. 17.05) and reversed four conspiracy convictions. The case was remanded to recalculate presentence credits according to the amended version of Penal Code section 4019. (I) BCT

Hinkle, Stephen — People v. Wilder, D054978 — Instructional Error
At trial, appellant asserted his cultivation of marijuana was for his personal use and the personal use of other members of a marijuana collective and thus lawful under the terms of the Compassionate Use Act. On appeal, he argued the trial court erred in instructing the jury with respect to limits the Medical Marijuana Program (MMP), Health and Safety Code section 11362.7 et seq., sets on the amount of marijuana a “qualified patient” may possess or cultivate. Appellant was injured while playing football in college and testified he used marijuana in lieu of prescription narcotics to control the residual pain he experienced. Appellant presented testimony from a marijuana expert who concluded that a patient with appellant’s symptoms needed between a half pound and a pound of marijuana a month and that appellant’s share of the plants being cultivated at the greenhouse appellant was operating would produce about that amount. However, the trial court instructed the jury that under the terms of the MMP a patient may possess no more than six mature marijuana plants and 12 immature plants, unless a doctor has recommended that the patient's medical needs are greater. In People v. Kelly (2010) 47 Cal.4th 1008, 1043, the Supreme Court held the numerical limits prescribed by the MMP do not govern the more general standard set forth by the voters when they adopted the Compassionate Use Act as an initiative measure. In giving the instruction, the trial court erred, and in light of the expert testimony and the instruction’s likely impact on the jury’s consideration of that testimony, the error was prejudicial. (I) HCC

Shetty, Siri — People v. Ibarra, D055449 — Lesser Included Offense
Appellant was convicted of count 3 (robbery), but at trial there was some dispute as to whether the act was accomplished with force or fear, when the victim testified he was not afraid when he was approached by appellant and cohort, nor was afraid when another cohort pointed a gun at him, because he believed the gun him was fake but handed over his belongings because it was “[not] worth being wrong.” Appellant requested the court instruct on grand theft as a lesser included offense to robbery; the court initially agreed, but the court later determined that attempted robbery, rather than grand theft, was a more appropriate lesser included offense. The Court of Appeal agreed with appellant. In so instructing, the trial court resolved factual disputes that should have been submitted to the jury. The judgment as to count 3 was conviction reversed, and the matter remanded with directions that the trial court give the People the option of initiating proceedings within 30 days of the issuance of the remittitur to try appellant for robbery in count 3, or (2) resentencing him. (I) HCC

Martin, Art — People v. Hamdi, D055771 — Penal Code Section 654
Trial court erred in imposing a concurrent term for the firearm possession by a felon, where Hamdi was also sentenced on the allegation that he was armed with a firearm while possessing cocaine in relation to the principal count of possession of cocaine for sale. (I) AMJ

Owen, Tom — People v. Aguirre, D055900 — Custody Credits
Custody credits are increased from 1,737 days to 1,845 days because the trial court relied on the probation report that failed to update the credits. (I) AMJ

Crawford, James — People v. Rodriguez, D055974 — Guilty Plea
The court reversed appellant’s guilty plea entered in July 2007 and remanded to the trial court to allow appellant to withdraw his plea. The court held the guilty plea was procedurally defective, because the July plea was expressly conditioned on the reservation of an illusory right to appeal the rejection of his earlier February 2007 plea bargain. (I) BCT

Harris, Donna — People v. Bernal, D056246 — Minute Order Correction
Case remanded for correction of the minute order to reflect the court’s oral pronouncement regarding various fines and fees. (I) BCT

Capriola, William — People v. Mendibles, E047670 — Multiple Charges
Court of Appeal concluded appellant was improperly charged with and convicted of multiple counts under Vehicle Code section 23153, specifically, two counts under each of subdivisions (a) and (b) of that section. The Attorney General’s office conceded the error. Appellant’s convictions of one count under each subdivision is stricken. (I) LKH

Washington, Susanne — People v. McPherson, E047957 — Attorney Fees
Order that defendant reimburse county for attorneys fees in the amount of $2,500 vacated, as trial court failed to properly impose it within the statutory period of six months from date it orally pronounced sentence. (A) PED

Kassman, Martin — People v. Dion, E048177 — Penal Code Section 654
Conviction for statutory rape ordered stayed pursuant to Penal Code section 654, where defendant also convicted of forcible rape based on same set of operative facts. (I) PED

Buchannan, Vicki — People v. Smith, E048615 — Restitution; Fine
Victim Restitution order of $600 ordered stricken, because there was no evidence victim suffered this amount of economic losses. $10 fine imposed pursuant to Penal Code section 1202.5 ordered stricken, where this section does not authorize such a fine for defendants convicted of violating Penal Code section 422 or 243, subdivision (e). (A) PED

Gorguinpour, Hassan — In re C.A., E048892 — Dependency Jurisdiction
Counsel for mother submitted “on the recommendations” at jurisdiction. The court did not take a waiver of rights from mother or give the advisements required by rule 5.682 of the California Rules of Court. This error was prejudicial because mother had several meritorious defenses to the petition, including that the petition allegations were insufficient to establish dependency. The Court of Appeal rejected the agency’s argument that mother’s waiver of rights at the detention hearing operated as a waiver at jurisdiction. And also rejected the argument that mother’s failure to raise this issue below waived the rule 5.682 error. (A) LMF

De La Sota, Richard — People v. Vinson, E048912 — Abstract of Judgment and Minute Order Correction
15-year gang enhancement stricken from abstract of judgment and minute order, because it was an inaccurate representation of trial court’s correct oral pronouncement: 15-year minimum parole eligibility in a life case. (I) APJ

Bauguess, Susan — People v. Vandell, E049217 — Fees; Custody Credits
Appellant contended the trial court erred (1) in imposing a booking fee without a determination of defendant’s ability to pay; (2) in imposing a court security fee of $100 under section Penal Code section1465.8; and (3) in calculating defendant’s presentence custody credits. The Court of Appeal agreed and held that (1) the booking fee be stricken; (2) the $100 court security fee be stricken and a $30 court security fee be imposed, instead, under section 1465.8; and (3) the case be remanded to the trial court to determine the true date of arrest and calculate defendant’s presentence credits (I) HCC

Harris, Donna — People v. Lafayette, E049269 — Lesser Included Offense; Ex Post Facto
Conviction for petty theft with a prior reversed as lesser included offense of grand theft conviction. Security fee reduced to $20 because conviction occurred before the amendment went into effect. (I) PED

Williams, Rex — People v. Alvarado, E049321 — Probation Conditions
Various probation conditions were modified to delete the requirement that defendant pay the following fees and costs: (1) a court security fee (Pen. Code, § 1465.8); (2) the cost of a presentence report (Pen. Code,§ 1203.1b); a probation supervision fee; and (4) a booking fee (Gov. Code, § 29550). Rather, the order that defendant pay such fees and costs is affirmed as an order entered as a part of the judgment, separate and apart from the conditions of probation. (I) HCC

Beckham, Sylvia — People v. Hernandez, E049905 — Abstract of Judgment Correction
Attorney General and Court agreed that the trial court erred in preparing three separate abstracts of judgment instead of one reflecting the single judgment resolving all three cases. Trial court ordered to prepare a single abstract of judgment. (I) AMJ

Rich, Renee — People v. Ramirez, G041061 — Prosecutorial Misconduct
Count 1, possession for sale of a controlled substance, is reduced to simple possession and the corresponding finding that Count 1 was committed for the benefit of a criminal street gang is stricken. Prosecutor committed misconduct by arguing facts not in the record and vouching for the credibility of a witness which impacted the sales element of count 1. The gang enhancement is stricken, because there was no evidence a person who simply possesses a controlled substance does so with the specific intent to benefit a criminal street gang. (I) AMJ

Hinkle, Stephen — People v. Haley, G041747 — Penal Code Section 4019
Court of Appeal found the favorable amendments to Penal Code section 4019 should be applied retroactively to double appellant’s pretrial conduct credits. (I) JLP

Tillman, Beatrice — People v. Ceja, G041757 — Sentencing; Penal Code Section 654
Case was remanded for resentencing because the trial court erred in imposing a five-year consecutive term for the gang enhancement pursuant to Penal Code section 186.22, subdivision (b)(1)(B), since appellant’s underlying felony (negligent discharge of a firearm) was not a serious felony, and, thus, Penal Code section 186.22, subdivision (b)(1)(A) was applicable which provides that punishment shall be an additional term of two, three, or four years at the court’s discretion. In addition, the trial court erred in imposing a consecutive eight-month term for the street terrorism conviction, because only a single physical act (one shot into the air) occurred and Penal Code section 654 prohibits multiple punishment for a single act . (S) BCT

Schraer, George — People v. Eid, G041759 — Instructionalal Error
In a published reversal, the court found CALCRIM No. 1202 does not adequately inform a jury of the law on kidnapping for ransom. Appellant and co-appellant Oliveira (G042004) were convicted of kidnapping for ransom for concealing and holding a woman and her child who were smuggled into the United States when they did not receive the money promised for their part in the smuggling journey. The court held the trial court prejudicially erred in failing to instruct the jury on the conditional element of defendants’ lack of reasonable belief in consent and the defenses of consent and reasonable belief in consent. The court also found the trial court’s failure to adequately answer the jury’s question requesting a definition for kidnapping was prejudicial. (I) BCT

Duxbury, Brett Harding — People v. Rodriguez, G041795 — Minimum Parole Eligibility
The Court of Appeal agreed with appellant’s argument that, pursuant to Penal Code section 12022.53, imposition of 15-year minimum parole eligibility, pursuant to Penal Code section 186.22, subdivision (b)(1), is unauthorized when jury did not make a finding that appellant personally used a firearm during commission of attempted murder. (I) APJ

DeVito, Cara — People v. Ryland, G041848 — Abstract of Judgment
Where two abstracts of judgment, one for a determinate sentence and one for an indeterminate sentence, each incorporated the other, the Court of Appeal ordered each corrected to record only the determinate and indeterminate sentences, respectively. (I) AMJ

Shetty, Siri — People v. Oliveira, G042004 — Instructionalal Error
Appellant and co-appellant Eid (G041759) were convicted of kidnapping for ransom for concealing and holding a woman and her child who were smuggled into the United States when they did not receive the money promised for their part in the smuggling journey. The court reversed the convictions based on the trial court’s prejudicial error in failing to instruct the jury on the conditional element of defendants’ lack of reasonable belief in consent and the defenses of consent and reasonable belief in consent. The court found CALCRIM No. 1202 does not adequately inform a jury of the law on kidnapping for ransom. The court also found the trial court’s failure to adequately answer the jury’s question requesting a definition for kidnapping was prejudicial. (I) BCT

Riggs, Brent — In re Tyler H., G043216 — Inter-County Transfer
Los Angeles Department of Children and Family Services transferred out this case to Orange county where the parents lived. Essentially acting as an appellate court and conducting a de novo review, Orange County reversed the Los Angeles county court’s valid order and transferred the case back to Los Angeles on the same issue previously decided by the Los Angeles juvenile court. The father appealed. The Court of Appeal reversed, stating it was confident the Orange County juvenile court would be able to hold the termination of parental rights hearing and decide what permanent plan was best for the child . (I) CAG

JULY 2010

Grove, Kimberly — People v. Graham, D054031 — Parole Revocation Fine
Given the life without possibility of parole sentences, the judgment was modified to reflect the striking of the parole revocation fine imposed pursuant to Penal Code section 1202.45. (I) HCC

Wallingford, Jerome — People v. Myers, D054179 — Parole Revocation Fine
Appellant argued, the Attorney General conceded, and the Coirt of Appeal agreed the trial court erred in imposing a $5,000 parole revocation fine pursuant to Penal Code section 1202.45 because appellant’s two life without the possibility of parole sentences eliminate the possibility of parole. The court directed the trial court to amend the abstract of judgment to strike the fine. (I) HCC

Koryn, Daniel – People v. Garcia, D054982 – 10 Year Gang Enhancement Stricken
10 year gang enhancement imposed under Penal Code section 186.22, subdivision (b) should be stricken as appellant was convicted of a felony punishable by life imprisonment which instead requires the imposition of a 15 year parole eligibility minimum. (I) PED

Stanton, Marta — People v. Holloway, D055265 — Sentencing
Appellant argued and the People conceded that the trial court erred in sentencing him to a consecutive three-year four-month sentence on one count of arson to property. For that count, he had been found guilty of violating Penal Code section 451, subdivision (d), punishable by 16 months, two, or three years. The trial court erroneously imposed a term based Penal Code section 451, subdivision (b), i.e., arson of an inhabited structure. The abstract of judgment and sentence were ordered corrected to reflect the correct subdivision and term of imprisonment. (I) HCC

McGill, Martha — People v. Hernandez, D055334 — Sentencing
Where defendant was convicted of two counts of being a felon in possession of a firearm based on two separate incidents three days apart, the Court of Appeal held one count should have been stayed pursuant to Penal Code section 654. The Court of Appeal also remanded for the trial court to exercise its discretion to choose between concurrent and consecutive sentences under the Three Strikes law as to several counts which occurred on the same occasion. The trial court had imposed consecutive terms for all counts, and in doing so the court erroneously stated that consecutive sentencing was required, despite the fact several counts occurred on the same occasion.. (I) NFA

Boire, Richard – People v. Powell, D055519 – Penal Code section 654
Appellant was convicted and sentenced for a number of offenses, including misdemeanor contempt of court for violating a no-contact order (count 12, § 166, subd. (a)(4)), felony vandalism (count 7, § 594, subd. (b)(1)), and stalking while a restraining order was in place (count 8, § 646.9, subd. (b)). The Court of Appeal orders the sentence for violating a no-contact order (count 12) stayed pursuant to section 654 because appellant was sentenced separately for counts 7 and 8, charges which formed the factual basis for count 12. (I) LKH

Gold, Neale; Mallinger, Kathleen — In re Jonathan C., D055888 — ICWA Notice
Despite other substantial issues raised concerning Pitchess motions in dependency cases and requirements of Welfare and Institutions Code section 342 supplemental petitions, the court reversed on lack of ICWA notice, stating that the suggestion that a great-grandparent is or was a member of a Cherokee tribe is sufficient to invoke notice requirements. The court also found the case was not made moot by the return of the children to the parents under the juvenile court’s jurisdiction. (I) CAG

McPartland, Michael — People v. Mendoza, D056069 — Insufficient Evidence
10-year gang enhancement was not supported by sufficient evidence because (1) spray painting graffiti is not an enumerated crime; (2) the fact that the Los Amigos gang engaged in vandalism did not establish that the damage caused was $400 or more as would be necessary to bring the crime within the gang section (felony vandalism); and (3) the commission of the crimes in this case does not show that the gang consistently and repeatedly engaged in crimes falling within the gang provision. (I) AMJ

De la Soto, Richard — People v. Mesa, D056280 — Sentencing
Reversed in part. Trial court erred in imposing, as to one of the assault convictions, the gang enhancement, because Penal Code section 1170.1, subdivision (f) and (g), prevented the trial court from imposing it along with either the firearm enhancement or the great bodily injury enhancements, and it erred in imposing consecutive sentences on the three firearm possession convictions, because Mesa had continuous possession of the firearm, and Penal Code section 654 requires imposition of sentencing be stayed. (I) AMJ

Moran, Jamie — In re D.E., et al., D056684 — Continued jurisdiction under § 364
Mother argued, and the agency-respondent agreed, insufficient evidence existed at the family maintenance review hearing to support the court’s order to continue jurisdiction when the only remaining issue was whether mother was complying with the visitation orders for the father and grandmother. The minor-respondent argued to affirm. The Court of Appeal held the hearing was a family maintenance hearing and not an 18-month review hearing because the children had been returned to mother. As a result, the relevant statute is Welfare & Institutions Code section 364. Under section 364, the court’s ruling was not supported by substantial evidence when the court’s only evidence was its suspicion “something else is going on.” Reversed and remanded for the trial court to vacate the orders continuing jurisdiction. (I) LLF

Torres, Tonja — People v. Hall, E047636 — Penal Code section 654
Court of Appeal ordered consecutive sentences for robbery and burglary convictions stayed pursuant to Penal Code section 654. Specifically, it found appellant had the same intent of robbery for the robbery as for the kidnaping for purposes of robbery of the same victim, and it found appellant had the same intent of stealing for the burglary as for two robberies. (I) JLP

Brisbois, Patricia — People v. Taylor, E047954 — Sentencing, prior prison term enhancements
Court of Appeal struck a prior prison term enhancement (Pen. Code, § 667.5, subdivision (c)) that was based on the same conviction for which appellant received a 5-year prior serious felony enhancement (Pen. Code, § 667, subdivision (a)), as required by People v. Jones (1993) 5 Cal.4th 11432, 1150. (I) NFA

Matsumoto, Ellen — People v. Morales, E048276 — Sufficiency of evidence
Two of five counts of attempted lewd act with a child were reversed for insufficient evidence where the victim only testified to three incidents. (I) NFA

Bauguess, Susan — People v. Steven Ray Widney, E048450 — Presentence custody conduct credits
Appellant, who served only four days in custody before being sentenced to a sixteen month prison term, received no presentence custody conduct credits under Penal Code section 4019. Court of Appeal remanded case for consideration of presentence custody conduct credits under People v. Dieck (2009) 46 Cal.4th 934, which holds award of presentence custondy conduct credits under Penal Code section 4019 is proper where the minimum duration of ordered commitment is at least six days. (I) CBM

Simpson, Alex — People v. Hicks, E048504 — Restitution
Court of Appeal agreed with appellant that restitution order should have been ordered joint and several liability with the codefendant. (A) JLP

Farber, William – People v. James, E048725 – Five year section 667, subd. (a)(1) enhancements
One of two five year enhancements imposed pursuant to Penal Code section 667, subdivision (a)(1) ordered stayed because the two priors were not brought and tried separately. Both charges were alleged in the same complaint and involved the same victim. (I) PED

Boyce, Robert — People v. Sandoval, E049072 — Lesser included offenses
Defendant was convicted of gross vehicular manslaughter while intoxicated (Pen. Code § 191.5, subd. (a)) and DUI causing injury. The Court of Appeal vacated the latter count as an lesser included offense within the former. (I) NFA
Buchanan, Vicki Marolt — People v. Fuentes, E049238 — Penal Code section 654 Stay
Appellant argued, Attorney General conceded, and Court of Appeal agreed that sentence for possession of burglary tools must be stayed pursuant to Penal Code section 654 because appellant has been separately sentenced for the burglary he intended when he criminally possessed the tools. (I) APJ

Bauguess, Susan — People v. Long, G039091 — Prior Prison Enhancement
Appellant argued, respondent conceded, and the court agreed the one-year enhancement for a prior conviction under section 667.5, subdivision (b), did not apply when a five-year enhancement under section 667 attaches to the same conviction. (People v. Jones (1993) 5 Cal.4th 1142, 1150 [“when multiple statutory enhancement provisions are available for the same prior offense, one of which is a section 667 enhancement, the greatest enhancement, but only that one, will apply”].) The court ordered the abstract of judgment amended to reflect the one-year enhancement imposed under section 667.5, subdivision (b), to be stricken. (I) HCC

Ward, Paul – People v. Goliath, G041315 – Presentence Credits
Trial court mistakenly believed appellant was not entitled to Penal Code section 2933.1 conduct credits because he was sentenced to indeterminate life terms. Court of Appeal modified the judgment and awarded 271 days of presentence conduct credit. (I) BCT

Beckham, Sylvia — People v. Castaneda, G042110 — Lesser included offenses
Appellant was convicted of separate counts of being a gang member carrying a loaded firearm (Pen. Code § 12031, subd. (a)(2)(C)) and unlawfully carrying a concealable firearm (Pen. Code § 12031, subd. (a)(2)(F)). The Court of Appeal found these two subsections do not designate separate crimes, but rather different punishment provisions for a single crime; accordingly, the court struck the latter (lesser) count. Appellant was also convicted of being an active member of a gang ((Pen. Code § 186.22, subd. (a)), which the court struck as a lesser included offense within the section 12031, subdivision (a)(2)(C) count. (I) NFA

Jones, Sharon — People v. Mendoza, G042409 — Credits
Trial court erred in misapplying Penal Code section 2933.2 no conduct credits limitation in that the statute is inapplicable to attempted murder convictions, and appellant is therefore entitled to conduct credits of 206 days. (I) AMJ

Williams, Rex — People v. Albert John Lamonte, G042534 — Prior Prison Term Enhancement
Where the information pleaded a prior prison term enhancement under Penal Code section 667.5, subdivision (b) for appellant’s prior arson term, but imprisonment for that term was previously stayed under Penal Code section 654, the court’s true finding was reversed. A prison term is not served for purposes of section 667.5 if it is stayed under section 654. (People v. Percelle (2005) 126 Cal.App.4th 164, 178.) Case also remanded for resentencing because the court never pronounced sentence on Count Three – receiving stolen property.

Weis, Lizabeth — In re Perry, G042879 — Penal Code section 1381 demand for sentencing
Habeas corpus relief granted. Defendant was simultaneously on probation and parole. His parole was violated based on subsequent conduct, and he was returned to prison to serve a revocation sentence. The People also filed a petition revoke probation. While in prison on the parole revocation, defendant filed a request under Penal Code section 1381 to be sentenced within 90 days on the probation matter. More than 90 days later defendant was returned to court, violated on probation and sentence to prison on the probation case. The Court of Appeal held Penal Code section 1381 applied to the pending probation revocation matter and so under the statute defendant was entitled to dismissal when revocation and sentencing did not occur within 90 days of his demand. The court rejected the People’s argument appellant forfeited the claim by not moving for dismissal in the trial court. Probation revocation and prison sentence vacated and case dismissed. (I) NFA

Olson, Jacob — In re C.F., G042987 — Dependency-Jurisdiction/Disposition Hearing
Court of appeal reversed jurisdictional/dispositional order in a case in which a one year old child suffered a fractured femur and facial abrasions. Juvenile court had found that the allegations under section 300 (a) were not proven by a preponderance of the evidence. But while it did find the failure to protect allegations under 300(b) were supported by the evidence, the appellate court disagreed and reversed. (I) ACS

JUNE 2010

McCusker, Gerard; Kaiser, Donna — In re A.W., D056082 — Indian Child Welfare Act (ICWA)
Limited reversal for ICWA notice violation. (I) ACS

Sheehy, Kevin — People v. Ha, D054343 — Probation Condition
Appellant, Attorney General, and the Court of Appeal agreed that a probation condition should be modified to read: “Not use a cell phone to communicate with any known gang member, or a paging device, except in the course of lawful employment.” (I) HCC

Kraft, Rudy — People v. Gillispie — Sexually Violent Predator (SVP)
This SVP appeal raised several issues but was reversed on the equal protection claim in light of the California Supreme Court’s decision in People v McKee (2010) 47 Cal.4th 1172. The case was remanded to the trial court to determine whether the People can justify the greater burden placed on SVPs to obtain release from treatment, when compared to that placed on mentally disordered offenders and those found not guilty by reason of insanity. (I) LMF

Tetreault, Nancy — People v. Hadnot, D055164 — Expert Testimony
The Court of Appeal agreed with appellant’s argument that the trial court prejudicially erred when it excluded testimony of a defense expert who would have testified appellant suffered from post-traumatic stress disorder. Appellant claimed, both in prior statements and on the stand, that the shooting of her husband occurred accidentally, during a struggle for the gun her husband held to her head. At trial, the defense called an expert on battered woman’s syndrome. During trial, defense counsel decided that a psychologist should also be called to testify that appellant suffered from post-traumatic stress disorder. Although the trial court authorized funds for the expert and found the evidence to be probative, it ultimately excluded the evidence based upon the consumption of time, the lateness of the request, and unfairness to the prosecution. The Court of Appeal found this decision to be an abuse of discretion “under the circumstances of this case.” With regard to prejudice, the Court of Appeal found that the exclusion did not deprive appellant of a defense, because appellant’s defense was accident and other witnesses testified about domestic violence in the home. The Court of Appeal also noted that under the “miscarriage of justice” standard, the question of prejudice was “extremely close.” However, after considering the facts that this was appellant’s third trial, the jury was deadlocked at one point during deliberations, and the prosecution capitalized on the lack of diagnosis, the Court of Appeal found it reasonably probable the exclusion adversely affected the verdict. (I) APJ

Dikes, Patti; Trop, Neil; Moran, Jamie — In re Isabella C., D055886 — Dismissal; Mootness
Even though it affirmed appellant’s case, the court dismissed the Agency’s appeal when it granted appellant-mother’s motion to dismiss the Agency’s appeal from the order placing the children with their mother after the Agency later recommended placement with the mother. The Agency fought the dismissal, asking the court to remand the case for a new disposition hearing to assess the children’s current status and risk and safety issues. (I) CAG

Lankford, Valerie — In re Andrew A., D055956 — Notice; Dismissal
The Court of Appeal reversed the trial court’s dismissal of the petition in this minor’s appeal. The other parties were not given notice that mother would ask for reconsideration of the original jurisdictional findings at a hearing set for a Welfare and Institutions Code section 342 supplemental petition. Since mother had pleaded no contest to the allegations of the petition in this Imperial County case, under the particular procedural circumstances of this case, the juvenile court had no legal authority to reconsider the jurisdictional findings, but may do so at a future disposition hearing. (I) CAG

Dodd, Karen — In re D.H., D055960 — ICWA
Appeal from a six month review hearing challenged the court’s reasonable services finding with respect to an incarcerated father and asserted ICWA error. The court agreed the agency had not provided this father reasonable reunification services, but found the error was harmless, because the father was due to be incarcerated for several more years, far beyond the reunification period. The juvenile court erred in finding ICWA did not apply, where no notices were sent though relatives identified two great-grandparents with possible Indian heritage. (I) LMF

Evans, Suzanne — In re Alexis S., D056003 — ICWA
Reversal for inadequate ICWA notice. The agency conceded the notice was inadequate, but asserted it was harmless error. Evidence showed a strong connection by family members to the Cherokee tribe. The agency submitted an augment of post-judgment ICWA notices of half-siblings which apparently contained many of the same errors. The augment was submitted under various court rules, rules 8.155(a)(1)(A) and (a)(2), 8.340( c ), 8.408 ( c ), and 8.416(d), stating the augment did not violate In re Zeth S. The court granted the augment in the opinion, but found it did not help the agency. (I) CAG

Gabrielidis-Lechman, Cristina — In re Maria R., D056110 — Jurisdiction
In a published case, the court reversed a Welfare and Institutions Code section 300, subdivision (j) finding of risk of sexual abuse of the male child in a family, stating a lack of support in the relevant statutory provisions for the proposition that a brother of a girl who has been sexually abused by a parent is at risk of sexual abuse as well as a lack of evidentiary support. The court remanded the case for the Agency to investigate other grounds for an amended petition or new petition for the boy. (I) CAG

Cannon, Greg — People v. Cronk, E046546 — Sentencing; Penal Code Section 654
The trial court erred by issuing a restraining order pursuant to Penal Code section 136.2 that lasted longer than its jurisdiction and by ordering the defendant not to possess any deadly weapon or related paraphernalia as there is no statutory authority allowing such an order. Also, the imposition of unstayed sentences on both assault with a firearm and making a criminal threat violated Penal Code section 654. (I) PED

Boire, Richard — People v. Traugott, E046884 — Inadequate Verdict; Structural Error
Verdict by jury comprised of only 11 as opposed to 12 jurors violated defendant’s state constitutional right to a unanimous 12-person verdict. (I) PED

Christiansen, Mark — People v. Weed, E047245 — Restitution Fine
Parole revocation restitution fine imposed and stayed under Penal Code section 1202.45 must be stricken, because it is improper to impose such a fine where the defendant is sentenced to a term of life imprisonment without the possibility of parole. (I) AMJ

Capriola, William; Morse, David — People v. Flores et al., E047165 — Gang Enhancement
Determinate three year term for gang enhancement imposed on both defendants who received life prison sentences stricken and changed to a 15 year minimum sentence before being considered eligible for parole. (See Pen. Code, § 186.22, subd. (b)(4).) (I) PED

Matulis, Jean — People v. Nunez, E047822 — Sufficiency of Evidence
Where evidence of only one lewd act between the dates alleged in three counts existed, Court of Appeal reversed two counts for insufficient evidence. (I) JLP

Seaman, R. Clayton — People v. Lopez, E048027 — Custody Credits
Appellant argued and the People agreed the trial court erred in not giving defendant proper credit for pretrial custody served. The trial court erroneously subtracted 360 days custody credit, rather than 180 days, for counts 1 and 2, and failed to award defendant 97 days work time credit. Defendant was in continuous custody until his sentencing for 647 days. Accordingly, the trial court was directed to modify the judgment to reflect that defendant was entitled to 564 days of credit rather than 324 days credit erroneously awarded by the court. (I) HCC

Babcock, Russell — People v. East, E048169 — Abstract of Judgment
Abstract of judgment incorrectly reflects imposition of a Penal Code section 667, subdivision (a), enhancement, which was ordered stricken, because the crime that appellant was convicted was not a serious felony and the enhancement was not alleged or proven as to count 1. (I) AMJ

Lintvedt, Cathryn — People v. Navarro, E048275 — Probation Condition
Court of Appeal modified probation condition prohibiting possession or use of sexually explicit material to include a definition of sexually explicit, after finding said condition was vague without it. (A) JLP

Alcado, Linda — People v. Chapman, E048984 — Counsel Fees
Appellant contended the trial court erred by imposing fees for court-appointed counsel (Pen. Code, § 987.8) in each of his two cases below. Given the presumption under the statute that defendant sentenced to prison does not have the ability to reimburse defense costs, the People conceded the issue and suggested the orders be stricken. The Court of Appeal accepted the concession and reversed the orders. (I) HCC

Fields, Lori; Gorguinpour, Hassan — In re D.D., E049562 — ICWA
Mother initially claimed she had no native American Indian heritage, but Aunt Clara told the social worker mother did have Indian ancestry. She did not know the name of the tribe, but would check with other relatives. Five days later, without checking back with Aunt Clara, the Agency sent out an ICWA notice to the Bureau of Indian Affiars which identified no tribe. The court concluded the Agency’s failure to check back with Aunt Clara before sending the ICWA notice violated the Agency’s duty to make further inquiry. The duty of further inquiry arose when aunt Clara gave the Agency reason to believe mother had Indian ancestry. Aunt Clara was available to the Agency throughout the proceedings, and there were a number of other relatives whom the Agency could have contacted for more information. (I) LMF

Hill, Melissa — People v. Ramirez, G041265 — Sufficiency of Evidence
The court reversed appellant’s conviction for street terrorism under Penal Code section 186.22, subdivision (a), for insufficient evidence. While evidence was admitted showing he was aware his cousin, a gang member, murdered a rival gang member in 2001, homicide had been not included in the universe of offenses the jury might consider in determining a pattern of criminal gang activity pursuant to its instruction. Although evidence was presented that appellant admitted that he had picked up co-participants for the purpose of committing graffiti, in order to be a qualifying offense under Penal Code section 186.22, subdivision (e)(20), the subject graffiti must cause $400 in damage or more. Here, though, no evidence was presented as to the cost of damage caused by any gang member’s act of vandalism. (I) HCC

Matsumoto, Ellen — People v. Lelenoa, G041334 — Penal Code Section 654
The Court of Appeal agreed with appellant’s arguments that appellant fired shots in the air for the purpose of facilitating robberies, thereby rejecting the Attorney General’s arguments that appellant fired the shots gratuitously and for the purpose of terrorizing victims. Accordingly, the sentences for negligent discharge of a firearm were required to be stayed pursuant to Penal Code section 654 where appellant was separately punished for the robberies. (I) APJ

Phillips, Kevin — People v. Williams, G041764 — Evidentiary/Constitutional Error
Reversed. Trial court committed prejudicial evidentiary error and constitutional error by requiring defendant to testify first as a condition to calling a defense witness whose testimony was relevant and critical in that it would undercut the prosecution’s evidence of an intent to sell. (I) AMJ

Shudde, Athena — In re Ortiz, G041895 — Benoit
Petition for writ of habeas corpus requesting permission to file a late notice of appeal was granted. After petitioner’s case was remanded for the trial court to re-consider the motion for new trial, the trial court denied the motion and affirmed the judgment. The trial court failed to advise petitioner of his right to appeal, and his trial attorney did not consult with petitioner about filing an appeal. Finding petitioner was diligent in pursuing his appellate rights, despite the three year gap in time, the Court of Appeal granted the petition. (I) LKH

Shors, Susan — People v. Corona, G042081— Penal Code Section 667.61
Attorney General conceded and Court of Appeal agreed that an indeterminate sentence should have been determinate, given that the law at the time of the offense at issue only allowed for one life term to be imposed per incident for each victim. (I) JLP

Wells, Mary — People v. Martinez, G042123— Gang Enhancement
Court of Appeal reversed gang enhancement because gang expert did not testify that members of gang consistently and repeatedly committed the offenses listed in Penal Code section 186.22, subdivision (e) as required by People v. Sengpadychith (2001) 26 Cal.4th 316. (I) DKR

Williams, Rex — People v. Benner, G042127 — Fines & Fees
The trial court erred by conditioning appellant’s probation on the payment of certain fees and costs, and the appropriate remedy is for their payment to be part of the judgment in the case. The Court of Appeal modified the judgment accordingly. The court also ordered stricken the $100 alcohol and drug assessment fee the court imposed. As the Attorney General had conceded, that fee was improper because it can only be levied upon a fine, penalty, or forfeiture that was imposed and collected by the court (Veh. Code, § 23649), but here, the trial court ended up subsuming the fine into appellant’s presentence credit award and, thus, never collected it. (I) HCC

Schuck, John — People v. Lopez, G042140 — Sentencing
Court of Appeal remanded for a new sentencing hearing because the Court of Appeal refused to consider 80 letters presented on the defendant’s behalf at the original sentencing hearing. (I) JLP

William, Rex — In re Emmanuel G., G042217 — Probation Condition
Court agreed that probation condition prohibiting minor from associating with “probationers, parolees, criminal street or tagging crew members, or users or sellers of alcohol or drugs” was vague and overbroad. Condition modified to read as: “Do not associate with anyone you know is a probationer, parolee,...” etc. (I) LAR

Tavano, Joseph — People v. Howell, G042270 — Probation Conditions
Two probation conditions were stricken as unconstitutionally overbroad impingements on the rights to travel and associate. One condition made appellant’s residence subject to the approval of the probation officer, and the second forbade appellant to associate with anyone disapproved by the probation officer. The court found appellant could challenge the conditions despite the absence of an objection below, because they presented pure questions of law and did not require scrutiny of the facts of the case. The court noted the residency condition could be narrowed to render it constitutional and remanded to the trial court for this purpose. (I) NFA

Klaif, Leonard — People v. Ruelas, G042333 — Penal Code Section 654; Custody Credits
The Court of Appeal agreed with appellant’s argument and the Attorney General’s concession that appellant’s concurrent sentences for burglary and assault must be stayed pursuant to Penal Code section 654, because they were part of the same course of conduct as the robbery for which appellant was also sentenced. In addition, all agreed that appellant was entitled to 5 additional days of pre-sentence custody credit. (I) APJ

Schuck, John — People v. Garcia, G042639 — Penal Code Section 654; Abstract of Judgment
Court ordered imposition of sentence on one count of burglary stayed pursuant to Penal Code section 654 and also ordered the abstract of judgment amended to delete language ordering no contact with victim as court did not have statutory authority to issue such an order after the trial had concluded. BCT (I)

Somers, Robert — In re Jacob B., G042661 — Probation Conditions
Appellant argued that various conditions of probation were ambiguous. As to some, the appellate court agreed. The condition prohibiting defendant from associating with probationers, parolees, users, sellers of alcohol or controlled substances was modified to read, “Minor not to associate with persons who are known to him to be probationers, parolees, users, sellers of alcohol, or controlled substances.” Further, the condition prohibiting defendant from contacting the victim was modified to read, “Minor not to initiate contact or cause to be contacted by any means with the victims of any offense alleged against you.” Other conditions which were ambiguously imposed orally but were unambiguous as set forth in the dispositional minute order were allowed to stand as set forth in the minute order. (I) HCC

Toole, Merrill — In re S. P., et al., G042839 — Reversal for ICWA violation.
The father reported his mother had adopted him at birth from a tribe in Yakima Washington, but he denied Indian heritage and asked the social worker not to contact her. A report indicated the social worker contacted the paternal grandmother about placement, but apparently didn’t ask her about Indian heritage. A notice was sent to the Yakama Nation tribe, which included the grandmother’s adopted name, birthdate, and birthplace. The notice was not addressed to the tribal chairperson or the agent for service, but was sent to the correct address. The court found the social worker’s failure to contact the grandmother and request further identifying information was a failure to make adequate inquiry. The failure to properly address the notice was also error. Even though a signed receipt shows the notice was sent to the correct address, the person who signed for the notice was neither the tribal chairman or the designated agent for service. Thus, there was no proof of actual notice to the person who must receive notice. The court also rejected the Agency’s harmless error argument. (I) LMF

MAY 2010

CRIMINAL/DELINQUENCY

Wass, Valerie — People v. Perez, D053244 — Unauthorized Sentence
Court found that pursuant to Penal Code section 1170.1, subdivision (f), only the greatest of two weapon use enhancements could be imposed. Therefore, the lower court erred in imposing consecutive one-year sentences for two weapon use enhancements - one for defendant’s personal use of a knife during the robbery, and one for the accomplice’s use of a firearm. Judgment modified to stay one enhancement (I) BCT

Schorr, Steven — People v. Armenta, D054071 — Gang Enhancement
Defendant was convicted of first degree murder, with the special circumstance that the murder was committed to further the interests of a gang. The Court of Appeal found evidence of the gang special circumstance was insufficient, because, even though the prosecution had established prior crimes by gang members, it did not establish that these crimes were the “primary activities” of the gang, as opposed to “occasional” criminal acts by members of the gang. (I) NFA

Irza, Helen — People v. Cowan, D054635 — Search and Seizure
Appellant argued and the Court of Appeal agreed that the trial court erred in denying his motion to suppress, when, after his vehicle was lawfully stopped and he was ordered out, a detective smelled burnt marijuana, searched appellant without consent, and seized cocaine. In People v. Temple (1995) 36 Cal.App.4th 1219, the court held that the smell of marijuana emanating from a vehicle, not connected to a particular occupant in the vehicle, does not provide probable cause to search the clothing of the vehicle's occupants. The court concluded here that Temple applied and that the detective lacked probable cause to search appellant’s person. The court also rejected various alternative arguments for affirming, including any difference between a driver and passenger and that the search could be incident to an arrest when appellant was never actually arrested for any offense to which the search could be incident. (A) HCC

Torres, Steven — People v. Xaverius, D055223 — Probation Condition
Court of Appeal agreed that probation condition that defendant not knowingly associate with any persons who have firearms or weapons in their possession was overly broad. (I) LAR

Sheehy, Kevin — People v. Wynn, D056808 — Penal Code Section 654
In a published opinion, the Court of Appeal agreed with appellant’s argument that the enhancement for personal use of a deadly weapon (Pen. Code, § 12022(b)(1)) must be stayed pursuant to Penal Code section 654. The weapon-use enhancement was attached to a sentence for burglary. Appellant was also sentenced for assault with a deadly weapon based upon the same use of a weapon. The trial court had declined to stay the enhancement, because it attached to the burglary count rather than a separate weapon possession count. The Attorney General conceded that if Penal Code section 654 applies to the sentencing enhancement at issue, the enhancement in this case should have been stayed. Significantly, the Court of Appeal found that Penal Code section 654 applies to enhancements based upon the circumstances of the crime as opposed to status enhancements. (I) APJ

Schooley, Wilson — People v. Pugliese, E045836 — Miranda
Appellant’s convictions for possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)), possession of a hypodermic syringe and needle (Bus. & Prof. Code, § 4140) and possession of not more than 28.5 grams of marijuana (Health & Saf. Code, § 11357, subd. (b)) are reversed where the trial court erred in admitting statements made to a deputy sheriff. Deputy sheriffs contacted appellant about an unrelated assault charge. During the initial conversation, the client gave the deputies consent to search the property. Deputies searched appellant’s truck and trailer and found a handgun in addition to syringes, needles, a bag of marijuana, and a bindle of methamphetamine. By this point, the client had spent almost an hour in the patrol car waiting for the deputies to finish. The deputy questioned appellant about the drugs and paraphernalia, and appellant admitted they belonged to him. The Court of Appeal reversed, finding the statement was taken in violation of Miranda. (I) LKH

Ulibarri, Patricia — People v. Garcia, E047043 — Lesser Included Offense
Conviction for petty theft with a prior reversed as a lesser included offense of robbery. (I) DKR

Shaler, Susan — People v. Poole, E047615 — Penal Code Section 654
The Attorney General conceded and the Court of Appeal agreed that Penal Code section 654 applied to convictions for possessing cocaine for sale and possessing cocaine in a penal institution based upon the same conduct. (I) APJ

Wass, Valerie — People v. Valdovinos, E047718 — Abstract of Judgment
Court of Appeal ordered superior court to correct the abstract of judgment (1) to reflect appellant’s sentence of an indeterminate 25-years-to-life, not a determinate 25 years, (2) to reflect the 124 days of presentence credits were earned in a mental health facility, and (3) to reflect that the restitution fine was imposed under Penal Code section 1202.4, subdivision (b), not Penal Code section 1202.44, a probation revocation fine. (I) CBM

Kraft, Eleanor — People v. McDonald, E047905 — Security Fee
The judgment was modified to strike the $50 court security fee and imposing a $20 court security fee pursuant to Penal Code section 1465.8. (I) BCT

Larson, Eric — People v. Juarez, E048402 — Abstract of Judgment
Superior Court directed to correct abstract of judgment to reflect the correct conviction of transporting methamphetamine. (I) AMJ

Bergen, Ann — In re P.B., E048832 — Probation Condition; Felony/Misdemeanor Determination
Court of Appeal agreed that three probation conditions are defective and must be modified to include a knowledge requirement and that the case must be remanded to the juvenile court to determine whether the offense for possessing a concealable firearm was a misdemeanor or felony as required by Welfare and Institutions Code section 702. (A) AMJ

Beckham, Sylvia — People v. Ramsey, E409501 — Custody Credit
Trial court erred in calculating appellant’s pre-sentence custody credits. Court of Appeal ordered the superior court to reflect an additional seven days of credit. (I) LKH

Hinkle, Stephen — People v. Crockett, G040060 — Sufficiency of Evidence
Court of Appeal agreed with appellant’s argument that insufficient evidence supported his conviction for receiving stolen property. Appellant was a passenger in vehicle containing stolen property. The theft occurred some time between 9:30 p.m., when the owner went to bed, and 5:30 a.m., when the vehicle carrying appellant was detained. Among other items, $420 in cash was taken from the owner. The same amount of cash was found in the pockets of both appellant and the driver, but in different denominations. The Court of Appeal found that there was no evidence other than mere possession to support the conviction. Reversal of the conviction vacated a 25-years-to-life sentence in this case. (I) APJ

Zimmerman, Harry — People v. Solorio, G040278 — Penal Code Section 17; Custody Credit
Attorney General conceded and Court of Appeal agreed case should be remanded for court to decide whether to reduce a conviction to a misdemeanor where the court did not recognize its discretion to do so. Additionally, Court of Appeal ordered additional credits pursuant to retroactive application of amended Penal Code section 4019. (I) JLP

Lampkin, David — People v. Avellaneda, G040609 — Sufficiency of Evidence.
Jury convicted appellant of first degree murder of her husband, soliciting his murder, and attempting to murder him. On appeal, appellant challenged the sufficiency of the evidence to support her conviction for attempted murder and that it was a lesser included offense of the murder. Court agreed and reversed. First, attempted murder is a lesser included offense of murder, and a defendant cannot be convicted of both. Court then looked to see if there was evidence that appellant attempted to murder her husband on another occasion. There was no such evidence; hence, the conviction was reversed. (I) PED

Gold, Peter — People v. Nell, G040797 — Marsden
Because the court failed to adequately inquire into defendant’s complaints of his counsel’s inadequate investigation which related to matters outside of the courtroom, judgment reversed and remanded to the trial court for a new hearing on appellant’s post-trial Marsden motion. (I) MCR

Morse, David — People v. Marshall, G041018 — Enhancements
Attorney General conceded and Court of Appeal agreed that case had to be remanded for resentencing, because trial court erroneously relied upon appellant’s firearm use for both firearm and gang enhancements. (I) JLP

Cava, Dennis — People v. Mangham, G041266 — Instructional Error
The Court of Appeal agreed with appellant’s argument that the trial court lightened the prosecution’s burden of proof when it instructed the jury, pursuant to prosecution’s request, that consent is immaterial to the crime of procuring a person to be a prostitute. The Court of Appeal found that there is no “procurement” unless the defendant’s entreaty meets with consent. Here, the prosecutor compounded the instructional error by arguing to the jury that the crime was complete when appellant made an offer. Although the opinion does not address prejudice, the evidence of acquiescence in this case was weak. (I) APJ

Bodo, Maureen — People v. Mendoza, G041401 — Present Defense; Jury Question
Reversed in part as to count 1, unlawful taking/driving of vehicle due to combination of trial court error in denying admission of defense evidence of cohort’s admission to driving the vehicle, coupled with a juror’s request for the officer’s testimony on the issue of driving, and the court’s failure to explain more fully, in response to a juror’s inquiry, reasonable doubt. (A) AMJ

Stafford, Victoria — People v. David, G041977 — Jury Question
The Court of Appeal found that under either the Chapman or Watson standard of review, the trial court’s failure to inquire further, when a juror sought definition of an unidentified term, required reversal. Because the trial court referred the juror to the instructions without even determining which term the juror didn’t understand, there was no way to ascertain whether the jurors properly and fairly performed their function as jurors. (I) APJ

Wenzell, Lewis — People v. Yancy, G042045 — Sexually Violent Predator (SVP)
Pro per habeas petition filed in the Court of Appeal, after a similar petition was denied by the trial court, challenged, among other things, the excessive delay in conducting the trial on two successive SVP petitions, and the use of an invalid assessment protocols (underground regulation issue). The court agreed, pursuant to its decision in People v. Ronje (2009) 179 Cal.App.4th 509, the defendant was entitled to new evaluations and to new probable cause hearings to remedy the use of the invalid assessment protocols. (I) LMF

Schwartzberg, Richard — People v. Nesmith, G042237 — Instructional Error
Where the information only charged crimes in Orange County, but evidence admitted also proved appellant committed certain acts against the victim in Big Bear, outside of Orange County, lewd acts conviction was reversed because trial court failed to instruct the jury that only the offenses committed in Orange County could be considered for the current charged crimes. (I) DKR

Cioffi, Eric — People v. Mitchell-Sayko, G042444 — Probation Condition
Court of Appeal orders probationary term prohibiting appellant from “associat[ing] with anyone disapproved of by [her] [p]probation [o]fficer” stricken, because the court never orally pronounced this term. (A) LKH

Clark, Marcia — People v. Madera, G041943 — Enhancements; Custody Credits
The trial court erred by imposing a 10-year sentence enhancement pursuant to Penal Code section 186.22, subdivision (b)(1)(C) to a count which was neither serious nor violent and the cause was remanded to the trial court to exercise its discretion in selecting an enhancement term to count 2 under section 186.22, subdivision (b)(1)(A). Actual custody credits were miscounted and the judgment was modified to correct both actual and conduct credits, netting a gain of 121 days. The judgment was also modified to strike, rather than stay, the prison prior enhancement under Penal Code section 667.5, subdivision (b). (I) HCC

De La Sota, Richard — People v. Ceja, S157932 — Dual Convictions; Instructions
The Supreme Court reversed a conviction for receiving stolen property. Appellant had been prosecuted for misdemeanor petty theft and felony receiving stolen property (the same property he had stolen), based on the legislative abrogation of the common law prohibition against prosecuting a thief for receiving the same property. The jury convicted of both crimes when the trial court failed to instruct the jury that it should only convict of one of the two offenses. (Pen. Code, § 496, subd. (a).) In the Court of Appeal, respondent argued and the majority agreed that the “greater” felony receiving should prevail; the dissent agreed with appellant that the common law origins of the rule against dual convictions required that the receiving to be reversed, even if the theft was petty. (After review was granted, in People v. Recio (2007) 156 Cal.App.4th 719, the Fourth District, Division Three, addressed the identical issue, and agreed with appellant’s position; for whatever reason, respondent did not petition for review.) Here, the Supreme Court agreed with appellant, the dissent below, and Recio, supra. To provide guidance to the trial courts, and again agreeing with Recio, the court further directed that juries should be instructed to reach a verdict on the theft charge first when the defendant is also charged with receiving the stolen property; a guilty verdict on the theft charge makes it unnecessary to consider the receiving charge. (A) HCC

DEPENDENCY

Davidson, Suzanne — In re Amber M., D055539 — Servicemembers Civil Relief Act
Father argued and the Court of Appeal agreed that the juvenile court should have granted father’s request for a stay pursuant to the Servicemembers Civil Relief Act (SCRA), because father’s commanding officer provided a letter indicating father would be deployed overseas for one year. The court found that even if the letter did not meet all the requirements of SCRA, it substantially complied with the requirements and it was error for the trial court to deny the request for a stay. (I) LLF

Caldwell, William — In re A.J., E049212 — Indian Child Welfare Act ( ICWA)
Limited reversal and remand of Welfare and Institutions Code section 366.26 hearing to provide ICWA notice after making proper inquiry. In a phone call with social worker, maternal grandmother identified herself as a registered member of the Cherokee tribe, but the call was disconnected before the social worker obtained more specific information. The court found the agency did not satisfy its duty of inquiry, because it failed to follow up on this information to see if she could provided a tribal enrollment number, information called for in the ICWA notice. (I) LMF

Dodd, Karen; Chirco, Donna — In re J.B., E049655 — ICWA
Inadequate notice was given to the tribes, and the Court of Appeal issued a limited reversal. (I) CAG

APRIL 2010

CRIMINAL/DELINQUENCY

Norman, Jan — In re Nico S., D054406 — Juvenile Court Jurisdiction
The juvenile court declared the minor a ward of the court after he admitted an assault and ordered that he pay victim restitution in an amount to be determined. The juvenile court, however, terminated jurisdiction before entering an order setting the restitution amount. The juvenile court later rescinded its order terminating jurisdiction based on mistake and entered an order setting the amount of victim restitution. Minor contended and the Court of Appeal agreed the order setting the amount of victim restitution must be vacated, because the juvenile court lacked the authority to rescind its earlier order terminating jurisdiction. (I) HCC

Holder, Lisa — In re T.S., D054510 — Lesser Included Offense
True finding for theft reversed as lesser included offense of true finding for robbery. (A) PED

Rogers, Tracy — People v. Castro, D054738 — Instructional Error (Unanimity)
Conviction for possession of controlled substance reversed where trial court failed to give unanimity instruction and evidence showed there were two or more separate stashes of drugs that could have formed the basis of the offense, and it is impossible to determine whether jurors unanimously agreed on the factual basis for that conviction. (A) PED

Farmani, Tony — In re AbelV., D055051 — Sufficiency of Evidence
True finding of vandalism reversed, where minor identified by neighbor as running away from police 10 to 15 minutes after vandalism but neighbor did not see faces of vandals and thus could not link minor to the crimes. Despite government argument that appellant’s brief asked the Court of Appeal to reweigh the evidence, the true finding was reversed on the ground that the evidence raised only a suspicion that minor was involved. (A) DKR

Wells, Mary — People v. Macon, D055316 — Fines
Restitution and parole revocation fines ordered stricken, because the trial court did not verbally order them, and People may not seek correction, because the fines are discretionary and the People failed to raise the issue at the sentence hearing. (I) AMJ

Lopez, Zandra — In re Miguel A., D055465 — Lesser Included Offense
True finding of simple battery reversed, because it is a lesser included offense within battery on a school employee (Pen. Code, § 243.6), for which a true finding was also made. (A) NFA

Scott, Terrence — People v. White, D055500 — Instructional Error; Lesser Included Offense
The trial court’s failure to instruct the jury that the counts of possession for sale and straight possession were alternative counts and only one conviction could be returned is prejudicial error that requires striking conviction of the lesser included offense of straight possession. (I) DKR

William, Rex — People v. Luera, D055681 — Instructional Error
Trial court gave a modified version of CALCRIM No. 220 to all of the prospective jurors during jury selection, but it did not give that instruction (or equivalent instruction) when it gave the pre-deliberation instructions to the jury three weeks later. Court of Appeal found omission of such a vital instruction was reversible error, i.e., could not conclude the error was harmless beyond a reasonable doubt. (I) LAR

Novoa, Kathleen — People v. Son, E047063 — Custody Credit
The Court of Appeal agreed with appellant’s argument that his credits were erroneously limited pursuant to Penal Code section 2933.1, because rape of an unconscious person does not qualify as a violent felony under the applicable statutes. (I) APJ

Clark, Marcia — People v. Otubuah, E047271 — Duplicative Convictions
The Court of Appeal found that 24 out of 27 counts of forgery, based upon Penal Code section 475, subdivision (c), must be reversed, because the evidence showed a single possession of blank check with intent to defraud, but three different potential victims. However, the court disagreed with cases that have held only a single count is possible for a single act of possession after finding that, in the context of the new statutory framework, the statute defines a fraud offense per each victim rather than a single offense for possession of one item. (I) APJ

Fitzer, Richard — People v. Padziora, E047575 — Ability to Pay; Civil Judgment
Reversed and remanded for new hearing. Trial court erred in revoking probation where appellant failed to pay restitution, because the trial court failed to make the required determination regarding ability to pay and the only evidence in the record was that appellant was disabled and unemployed. Also, trial court order converting the restitution order to a civil judgment is modified to read that any portion of the restitution order that remains unsatisfied after appellant is no longer on probation or parole shall continue to be enforceable by a victim as if the restitution were a civil judgment. (I) AMJ

Dunah, Patrick — In re T. P., E047853 — Probation Condition
Two probation conditions ordered amended to insert knowledge requirement: “Not have direct or indirect contact with any non-relative, whom she knows to be on probation or parole, unless approved by the probation officer. Not associate with anyone minor knows possesses weapons of any kind, including without limitation, firearms, firearm facsimiles, nunchuks, martial arts weaponry, or knives.” Graffiti and gang association condition of minor’s probation ordered modified to add only association with persons “whom she knows are engaged in unauthorized graffiti or related activities.” (S)

Kosofsky, Syda — People v. Nunez, E047637 — Probation Condition
Probation condition requiring the appellant to reside at a residence approved by the probation officer and not move without prior consent of the probation officer successfully challenged on the ground that it is constitutionally overbroad and ordered modified so as to be more narrowly tailored to the facts of appellant’s case or stricken. (A) PED

Simkin, Allison — People v. Acevedo, E048168 — Abstract of Judgment
Court ordered the abstract of judgment and minute order amended to reflect $200 restitution and parole fines imposed and to delete the notation that defendant was sentenced pursuant to Penal Code section 667, subdivision (e)(1). (I) BCT

Bronson, Phillip — People v. Mata, E048229 — Custody Credit
Trial court erred in denying Penal Code section 4019 credits based on information contained in the probation report, because the record failed to show that appellant was not entitled to the credits. (I) AMJ

Tran, Thien — People v. Patrick, E048292 — Health and Safety Code Section 11372.5 Fee;Probation Condition
Court of Appeal amended laboratory analysis fee pursuant to Health and Safety Code section 11372.5 plus penalty assessments from $298 to $163, as $298 amount was unauthorized. Also, Court of Appeal modified probation condition requiring appellant reside at residence approved by probation officer and not move without prior consent of probation officer, because the condition was unconstitutionally overbroad. (I) JLP

Schuck, John — People v. Carr, E048295 — Custody Credit
Attorney General conceded and Court of Appeal agreed that trial court should have recalculated custody credits at the resentencing hearing to include all time until resentencing. (I) JLP

Boire, Richard — People v. Rodriguez, Jr., E048378 — Restitution Fines
Trial court erred in imposing a Penal Code section 1202.4, subdivision (b) fine and a corresponding parole revocation fine pursuant to section 1202.45, based on a count stayed pursuant to Penal Code section 654. (I) AMJ

Demson, Jonathan — People v. Vega, E048392 — Fines/Fees
The Court of Appeal accepted the Attorney General’s concession that: 1) there was insufficient evidence to support order requiring appellant to reimburse the state for appointed counsel fees; and 2) the same was true with respect to the cost of preparing the probation officer’s report. The Court of Appeal recognized differences between the two statutes, with respect to the trial court’s latitude, but accepted the respondent’s concession in the interest of judicial economy. (A) APJ

Blake, Christopher — People v. Perez, E048517 — New Trial Motion
Judgment affirmed in part, following People’s appeal, finding trial court’s grant of defendant’s motion for new trial as to the attempted murder conviction not an abuse of discretion. Court found defendant’s testimony was substantial evidence that he did not intend to kill the victim, because it can reasonably be inferred that defendant would not have shot the gun into the air if he intended to kill the victim. Court of Appeal rejected People’s arguments, because defendant’s credibility is not relevant to its analysis in that the trial court has the authority to consider credibility and the People had not shown that defendant’s testimony is inherently improbable or impossible. (I) AMJ

Bronson, Phillip — People v. Aguilera, E048728 — Sentencing
Appellant entered into a plea bargain which encompassed a two-strike sentencing, striking an additional strike, dismissing a count, and imposing a stipulated sentence. At sentencing the court imposed the stipulated sentence, but neglected to dismiss the second count or to strike the other prior conviction. The minute order reflected the dismissal and the striking, but the abstract did not. The court ordered that the judgment and abstract be modified to conform with the plea bargain. (I) HCC

Jauregui-Law, Anna — People v. Austin, G038585 — Ineffective Assistance of Trial Counsel
Petition for writ of habeas corpus granted in part, writ issued, judgment on felony count is vacated, and matter remanded for further proceedings. In this 25-years-to-life case, defense counsel found to have performed deficiently by failing to subpoena a witness who wrote a letter exonerating petitioner and who made similar verbal statements to others. Court of Appeal determined that any refusal to testify at the trial would have allowed the defense to offer the letter as a declaration against interest and a reasonable probability exists that the admission of the letter would have led to a more favorable result for petitioner. (S)

Moller, Richard — People v. Luna, G041053 — Abstract of Judgment
Abstract of judgment ordered amended, indicating that the Penal Code section 667, subdivision (a)(1), enhancement was stayed, as was the sentence for the assault with a deadly weapon conviction, pursuant to Penal Code section 654, and showing the award of 556 days of credit on the indeterminate sentence abstract of judgment rather than the determinate sentence abstract of judgment . (I) HCC

Ankcorn, Mark — In re A.G., G041415 — Penal Code Section 654
Where true findings were made for both second degree commercial burglary and petty theft (shoplifting) based on the same incident, the Attorney General conceded and the Court of Appeal agreed that a maximum term of imprisonment based upon both, i.e., a consecutive term for the petty theft, was improper, and the petty theft term should have been stayed.. (A) HCC

Boire, Richard — People v. A.H., G041682 — Felony/Misdemeanor Determination
Case remanded to juvenile court with directions to exercise its discretion in compliance with Welfare and Institutions Code section 702 whether it intended to treat the assault offense as a felony or misdemeanor. (I) PED

Ries, David — People v. Ochoa, G041693 — Government Code Section 70373 Fee
Court of Appeal found that imposition of an assessment pursuant to Government Code section 70373 was an unauthorized sentence, because the provision only applies to Vehicle Code violations. (A) JLP

Baker, Randy — People v. Henderson, G041974 — Custody Credit
Despite the Attorney General’s arguments to the contrary, the Court of Appeal agreed that appellant received six days too few pre-sentence credits and appellant’s release from prison did not render the issue moot. (I) APJ

Clark, Marica — People v. Jeffries, G042058 — Sufficiency of Evidence
Judgment reversed in part, because gang allegation in connection with count four, possession of a deadly weapon, is not supported by substantial evidence. (I) AMJ

DEPENDENCY

Lankford, Valerie — In re Andrew A., D055956 — Dismissal of Petition
The Court of Appeal reversed the trial court’s dismissal of the petition in this minor’s appeal. The other parties were not given notice that mother would ask for reconsideration of the original jurisdictional findings at a hearing set for a Welfare and Institutions Code section 342 supplemental petition. Since mother had pleaded no contest to the allegations of the petition in this Imperial County case, under the particular procedural circumstances of this case, the juvenile court had no legal authority to reconsider the jurisdictional findings, but may do so at a future disposition hearing. (I) CAG

Riopelle, Sahyeh — In re Remyness T., D056018 — Indian Child Welfare Act (ICWA)
Mother argued and Court of Appeal agreed that the agency was required to ask the relatives more questions about possible tribal affiliation and to provide notice to specific tribes when the parents named specific tribes as the source of Indian heritage. The agency is required to sent notice even when mother later contradicted herself about possible Indian heritage, living relatives with additional information were too old to provide further details, and the family could not verify tribal involvement. (I) LLF

Rehm, Linda; Prince, Diana — In re Samantha H., G042460 — Best Interests of Child
Juvenile court improperly weighed its discretion and relied almost exclusively on children’s wishes in denying parent’s request for return of their two teenage children at post-permanency hearing. Youngest of two children will emancipate in a year and both children want to remain in their long-term foster care. The Court of Appeal relied on juvenile court’s comments to find trial court relied exclusively on child’s wishes for its decision or was rewarding the children for doing well in school. In either case, the juvenile court was required to determine the children’s best interest and the Court of Appeal reversed with directions for the trial court to review its decision. (I) LLF

MARCH 2010

Wright, Brian — People v. Carradine, D053945 — Enhancement
The Attorney General conceded and the Court of Appeal agreed that the one-year “blind victim” enhancement (Pen. Code, § 667.9, subd. (a)) does not apply and must be stricken in this case, because grand theft from a person is not a crime enumerated in the statute. (A) APJ

Simkin, Allison — People v. Gonzalez, D053292 — Search Warrant
Defendant moved to quash and traverse a search warrant. The trial conducted a closed hearing under People v. Hobbs (1994) 7 Cal.4th 948, 971, because the warrant affidavit referred to a confidential informant. The trial court denied the motion, and after trial defendant appealed. The Court of Appeal did its own Hobbs review, but found one of the reports on which the warrant was based was missing from the documents provided to the Court of Appeal. The Court of Appeal reversed and remanded, directing the trial court to use the settled statement process to reconstruct the missing document. If the trial court then reinstates the judgment, appellant may again appeal. (A) NFA

Hinkle, Stephen — In re W.K., D053424 — Insufficient Evidence
Defendant was convicted of two counts of aggravated assault (Pen. Code, § 245, subd. (a)(1)) based on an incident in which he struck the victim with a baseball bat. The Court of Appeal found the evidence only supported a single assault and reversed the second count. (I) NFA

Kessler, Daniel — People v. Hayes, D053795 — Insufficient Evidence
Conviction for willful failure to appear reversed, because evidence was insufficient based on a conflict in the evidence, and the reversal necessarily voids the jury’s true finding on the bail enhancement allegation. (I) AMJ

Zivot, Tamara — People v. Valenzuela, D054302 — Lesser Included Offenses; Probation Conditions
After a court trial, the juvenile court returned true findings against minor for battery causing serious bodily injury (count 1) and simple assault (count 2). Court of Appeal reversed the adjudication for simple assault, because it is a lesser included offense of battery causing serious bodily injury. The court also modified probation conditions adding the necessary knowledge requirement and deleting, any reference to a co-offender, because there was no evidence of any. (A) LKH

Forrey-Baker, Lelah — In re Anna S., D055036 — Nonfinality of Opinion
Child had been removed from mother’s custody via a Welfare and Institutions Code section 388 petition. While the Court of Appeal dismissed mother’s appeal of the granting of the petition as moot, it did publish the decision in which it concluded trial court erred to extent it used a nonfinal opinion of the appellate court to alter its procedures and influence its decision regarding the child’s placement. (I) ACS

Bookout, Susan — In re Owen C., D055191 — Reunification Services
Minor and father appealed the denial of reunification services to father. The child was placed with the mother. The minor argued that father should be given family maintenance services in the best interests of the minor. Father argued that he should be given reunification services. The court reversed and remanded for a new disposition hearing to determine the child’s best interests as to family maintenance services. (I) CAG

Tetreault, Nancy — People v. Mercado, D044138 — Gang Enhancement
Court of Appeal struck a criminal gang enhancement (Pen. Code, § 186.22, subd. (b)) where appellant’s sentence was also enhanced for firearm use under Penal Code section 12022.53, subdivision (e), which provides that enhancements may not be imposed under both sections, unless the defendant personally used a firearm. (I) NFA

Brisbois, Patricia — People v. Payne, E046033 — Dual Convictions; Penal Code Section 654
The conviction on count 5 (receiving stolen property) was reversed, because defendant cannot be convicted of both stealing and receiving the same property, and count 2 (false imprisonment) is stayed, because it was part of the continuous course of conduct with the single intent and objective of committing the robbery, for which he was sentenced under count 1. (I) AMJ

Brisbois, Patricia — People v. Disarufino, E046155 — Lesser Included Offense
Carjacking conviction reversed, because it is a lesser included offense of kidnapping for carjacking. Sentence related to carjacking and the corresponding handgun allegation were reversed. (I) AMJ

Owen, Thomas — People v. McDowell, E046920 — Penal Code section 654
Appellant was convicted of two criminal offenses committed on the same day: selling cocaine base with the intent to promote a criminal street gang (Health & Saf. Code, § 11352, subd. (a); Pen. Code, § 186.22, subd. (b)) and active participation in a criminal street gang (Pen. Code, § 186.22, subd. (a)). The trial court sentenced appellant to four years on count 1, plus two years for the gang enhancement, and a consecutive term for count 2. On appeal, the Court of Appeal ordered the consecutive sentence on count 2 stayed pursuant to Penal Code section 654. The court concluded, “the only way the jury could have found defendant guilty of gang participation was by finding that he committed the underlying felony of selling cocaine base to promote a street gang. . . . Accordingly, almost by definition, defendant had to have the same intent and objective in committing his two crimes.” (I) LKH

Toole, Merrill Lee — In re M.W., E045717 — Dual Status Child; Educational Rights
Mother argued trial court erred by failing to appoint an attorney to represent her when her interest conflicted with her child’s interest at hearing to determine whether to place child in a residential treatment facility for emotionally-disturbed children. Child was a dual status youth as both a dependent and a ward of the court as a delinquent. Mother was represented by appointed counsel in the dependency court, but not in the delinquency matter. The order limiting mother’s educational rights was issued in delinquency court.

The Court of Appeal agreed the court erred in failing to appoint counsel for mother and the error was prejudicial, because the attorney could have presented relevant evidence and called pertinent witnesses. The appellate court concluded that a result more favorable to mother is reasonably probable in this case had mother been represented by counsel at the hearing in question. The case was remanded to the delinquency court with directions to appoint counsel at a hearing to address whether to limit mother’s educational rights. (I) LLF

Dodd, John — People v. Belton, E047870 — Dual Convictions
Defendant’s conviction of receiving stolen property reversed, because there was no evidence of “complete divorcement” between the unlawful taking of a vehicle conviction and the receiving stolen property conviction. (I) MCR

Toole, Merrill Lee — In re R.W., E048078 — Welfare and Institutions Code Section 388; Reunification
Juvenile court denied mother’s request for reinstatement of reunification services as to one child but not the sibling finding more services were not in one child’s best interest. Court of Appeal found the trial court failed to properly analyze the best interest issue when it denied mother’s Welfare and Institutions Code section 388 petition as to the one child and focused on whether return of the child to mother was appropriate – an issue not before the court. (I) LLF

Koryn, Daniel — People v. Thomas, D050286 — Probation Condition
Restitution fine of $895 payable to El Cajon Police Department reversed, where there was no indication trial court made any findings regarding defendant’s ability to pay same. (I) PED

Koryn, Daniel G. — People v. Marquez, G041202 — Prison Prior
The Court of Appeal agreed with appellant’s argument that a prison prior enhancement must be dismissed, because it is based upon the same conviction as a serious felony prior also imposed. (I) APJ

Barry, Leslie — In re Jordan J. G042187 — Indian Child Welfare Act (ICWA)
Court of Appeals reversed judgment due to department’s failure to adequately inquire/give notice under the ICWA. (I) LMF

Harris, Donna — People v. Ayala, G040275, G042223 & G042307 — Gang Registration
Trial court erred in ordering gang registration, because there was no evidence the offenses were gang related, and gang order was stricken. (I) AMJ


FEBRUARY 2010

Tran, Thien – People v. Sanchez, D053099 – Imposition of a full-strength consecutive term for a lewd act conviction under section 288, subdivision (a) was prohibited by the literal language of Penal Code sections 667.6, subdivisions (c) and (d). Accordingly, the judgment is reversed and the case remanded for resentencing. (I) PED

Romero, Lynda – People v. Sullivan, D053447 – Evidentiary and Jury instruction errors
Court reversed appellant’s second degree murder conviction based on two trial court errors that were found to be prejudicial. First, the trial court abused its discretion in allowing the prosecution to refer to evidence of appellant’s fascination with the “Hell’s Angels” to rebut testimony by a defense witness of appellant’s good character. Second, after 10 days of deliberations, a juror was excused due to family obligations and an alternate seated. The trial court failed to properly instruct the reconstituted jury to start deliberations from the beginning and the reconstituted jury then found appellant guilty after two and a half hours of deliberations. (I) BCT

Cannon, Gregory – People v. Popescu, D053536 – Insufficient Evidence - Stalking
Stalking conviction under Penal Code section 646.9, subdivision (a) reversed because threatening statement about a victim made to a third person is not sufficient evidence of a credible threat that would put a victim in reasonable fear of safety. (I) HCC

Harris, Donna — People v. Head, D053985 — No contact order stricken
No contact order stricken because trial court had no power to make the order after family law court had issued a permanent protective order. (I) AMJ

Ballantine, Jean — People v. Tillis, D054245 — Instructional Error
When a young woman decided to prostitute herself, before she had conducted any business, she was taken to defendant, who was prosecuted for pandering and human trafficking. The appellate court held the trial court had erred in its instructions in failing to instruct the jury on the required specific intent to influence someone to “become” a prostitute and the specific intent to engage in human trafficking. (I) HCC

Beugen, Heather — In re Ana G., D053991 — Curfew ordinance, constitutionality
In a published decision, the Court of Appeal struck down the City of San Diego’s curfew ordinance as a violation of federal constitutional equal protection. San Diego Municipal Code section 58.0101, et seq., prohibited minors from being in a public place between 10:00 p.m. and 6:00 a.m., subject to certain exemptions, including attending adult supervised school, religious or recreational activities and exercising First Amendment rights. The minor appellant was found to have violated the ordinance when police stopped her driving home from a family celebration (a Quinceanera) at 1:00 a.m. The Court of Appeal found the “intermediate scrutiny” equal protection standard applied because the ordinance limited minors’ constitutional rights to travel and association. The intermediate scrutiny standard requires the government to establish the challenged provision furthers a “substantial governmental interest” and is not more extensive than necessary to achieve that interest. Applying that standard, the court found the ordinance was aimed at two substantial governmental interests, i.e., reducing juvenile crime and preventing victimization of juveniles. However, the ordinance was more extensive than necessary because, while it exempted minors’ participation in certain supervised or constitutionally protected activities, the exemptions did not include minors’ travel to and from these activities. The court reasoned that the exemptions in the ordinance for supervised or First Amendment-protected activities were “hollow” in that they protected only the activities, not the necessary travel to and from those activities. The court noted that a state statute, Welfare and Institutions Code section 625.5, provides an alternate curfew provision. However, by the terms of section 625.5 it applies only in municipalities that have passed a resolution adopting the statute, which the City of San Diego has not done. (A) NFA

Schmitt, Melissa – People v. Gray, D054326 – Sentencing, Penal Code section 654 stay
Court ordered count two, petty theft with a prior stayed pursuant to Penal Code section 654 because it resulted from an indivisible course of conduct with count one, commercial burglary. (A) BCT

Harris, Donna - People v. Mamaril, D054892 - sentencing/protective order
Appellant pled guilty to numerous acts of sexual abuse to a child, and the court imposed a 27-year prison term. At the sentencing hearing, the court continued a protective order, originally issued at the arraignment, which provided appellant was not to contact the victim or one of the witnesses for 10 years from the sentencing date. Court held, and AG conceded, trial court did not have the authority to issue the protective order beyond the sentencing date. (I) LAR

St. Julian, Andrea — In re Jolie C., D055267 — Not reasonable services when father called only once.
San Diego County Health & Human Services Agency and minor’s counsel conceded, and the Court of Appeal agreed, father did not receive reasonable services when he lived out of state and received one phone call from the agency with no information about his case plan or referrals for reunification services. The Court of Appeal reversed and ordered six months of services for father. (I) LLF

Levy, Richard — People v. Williams, D055514 — Insufficiency of Evidence; Sentencing
Defendant was found guilty of multiple offenses of molestation of two and sentenced to 1,330 years to life under the One Strike and Three Strikes Laws. The Court of Appeal found the evidence insufficient as to one incident where a rational trier-of-fact could only have found the evidence true as to one touching, not multiple touchings. Also, as for sentencing, the information did not allege any prior offense for purposes of the One Strike Law. Respondent conceded and the Court of Appeal agreed that sentencing under Penal Code section 667.61, subdivisions (a), (d)(1) was improper, and the case the case was remanded for resentencing. (I) HCC

Erickson, Kristin — People v. Trujillo, E045598 — Penal Code section 654
Attorney General conceded and Court of Appeal reversed consecutive sentence for discharging a firearm into an occupied vehicle, where the court found appellant had a single intent or objective for said conviction and assault conviction also punished. (I) JLP

Brisbois, Patricia – People v. Pierce, E049371 – Ex Posts Facto Sentencing.
Sentences on counts one through eight are reversed and the matter remanded for resentencing on those counts pursuant to the terms provided by Penal Code sections 288, subdivision (a) and 289, subdivision (j). Appellant argued and the court agreed that there was insufficient evidence to support a finding as required by section 667.61 subdivisions (a), (c) and (d) that these offenses were committed on or after 11/1/94, the effective date of this section. PED

Kross, Jeffrey — People v. Sssothlohiefmjn, E047144 — Cyber-annoyance insufficiency
Appellant’s conviction for violating Penal Code section 653m, subdivision (a) is reversed due to insufficient evidence because annoyance by electronic communication requires that communication be directed at a particular person and appellant’s obscene comments on an ABC News website were not directed at a particular person. (I).DKR

Koryn, Daniel — People v. Claudio, E047169 — Fines
The Court of Appeal ordered the cause remanded to the trial court for the purpose of reconsidering the amount of fines and associated assessments as well as for the trial court to determine whether defendant has the ability to pay the fines and assessments. (I) HCC

Schuck, John — People v. Vo — ministerial correction
Court ordered minute order corrected to reflect probation revocation restitution fine imposed, not a parole revocation restitution fine.

Blakely, Christopher — People v. Perez, E048517 — New Trial Motion
People’s appeal. Reversed in part. Court of Appeal opined that trial court did not abuse its discretion by granting appellant’s motion for new trial as to the attempted murder conviction because substantial evidence supported the court’s factual findings. (I) AMJ

Vogel, Linda — In re Rose S, E049293 — Limited Remand for ICWA error
The notices failed to contain the names of the maternal relatives who were identified as having possible Indian Heritage. Court declined to find the omission was the mother’s fault, because this information was communicated to the agency who neglected to include it in the notices. (I) LMF

Bauguess, Susan – People v. Crosby, G040204 – Insufficiency of evidence of residential burglary as a serious felony prior.
Reversal for new trial on whether a 1991 Florida conviction for burglary qualifies as a strike prior and a serious felony prior. At the time of the defendant’s plea, some Florida appellate courts did not require the burglarized structure to be inhabited when the burglary occurred. Remanded to allow the People another opportunity to prove that the dwelling was inhabited at the time of the defendant’s entry. (I) PED

Martin, Arthur – People v. Nguyen, G040588 – Insufficient Evidence for murder and attempted murder counts.
One count of murder and attempted murder reversed for insufficient evidence. (I) PED

Nelson, Laurel – People v. Melendez, G040593 – Insufficient Evidence to Support street terrorism enhancements.
Street Terrorism enhancements on grand theft auto and unlawfully taking a vehicle with a prior conviction overturned where only evidence introduced was that appellant and her co-defendant took the car because they needed a place to sleep. Gang expert conclusion that the crime was committed to benefit the gang was unsupported by any evidence. (I) PED

Multhaup, Eric S. - P v. Alviso, G041032 - Sentencing.
Appellant was convicted of first degree murder and street terrorism, with firearm use and gang enhancements. Appellant, who was 17 at the time of the murder, was sentenced to life without the possibility of parole. He contended the trial court failed to exercise its discretion in sentencing because the court had two options, LWOP or in the discretion of the court, 25 years to life. The record did not contain any reference that the trial court exercised its discretion in this regard, so the case was remanded for partial resentencing. The trial court was also ordered to award proper presentence custody credit. (I) LAR

Williams, Rex — People v. Sawicki, G041314 — Insufficient Evidence of Prior
Trial court’s finding on the prison prior term allegation is stricken for insufficient evidence because prosecution failed to prove appellant served a prison term.(I) AMJ

Koryn, Daniel – People v. Thomas, D050286 – Probation Condition
Restitution fine of $895 payable to El Cajon Police Department reversed where there was no indication trial court made any findings regarding defendant’s ability to pay same. (I) PED

Prince, Diana — In re J.V., Jr., et al., G042267— Adoptability
In a case in which the father impregnated his 13-year-old daughter, the court found the child and her brother unlikely to be adopted within a reasonable time. The daughter was terminated from the adoptive home at the caregiver’s request during the pendancy of the appeal. The brother who had formerly always been living with his sister and had been emotionally close to her was said to be “okay” with her absence from the home, but was of an age where adoptability would be a concern if it did not happen soon. These facts combined with the failure of the adoptive parents to submit their employment verification and information on criminal matters to facilitate evaluating their home as an adoptive placement could legally preclude them from adopting. (I) CAG

JANUARY 2010

Dwyer, John — People v. Parks, C062527 — Penal Code Section 654
Petitioner was convicted of robbery and burglary and sentenced to consecutive 25-to-life terms. The Court of Appeal grants the petition for writ of habeas corpus and ordered petitioner’s 25 to life sentence for burglary stayed pursuant to Penal Code section 654. (I) LKH

Kessler, Daniel — People v. Hayes, D053795 — Insufficiency of Evidence
Conviction for willful failure to appear reversed because evidence was insufficient based on a conflict in the evidence, and the reversal also necessarily voids the jury’s true finding on the bail enhancement allegation . (I) AMJ

Bookout, Susan — In re Owen C., D055191 — Reunification Services
Minor and father appealed the denial of reunification services to father. The child was placed with the mother. The minor argued that father should have been given family maintenance services in the best interests of the minor. Father argued that he should have been given reunification services. The court reversed and remanded for a new disposition hearing to determine the child’s best interests as to family maintenance services. (I) CAG

Brisbois, Patricia — People v. Payne, E046033 — Dual Convictions; Penal Code Section 654
The conviction on count 5 (receiving stolen property) was reversed, because defendant cannot be convicted of both stealing and receiving the same property, and count 2 (false imprisonment) was stayed, because it was part of the continuous course of conduct with the single intent and objective of committing the robbery, for which he was sentenced under count 1. (I) AMJ

Dodd, John — People v. Belton, E047870 – Dual Convictions
Defendant’s conviction of receiving stolen property reversed, because there was no evidence of “complete divorcement” between the unlawful taking of a vehicle conviction and the receiving stolen property conviction. (I) MCR

Barry, Leslie — In re Jordan J. G042187 — Indian Child Welfare Act (ICWA)
Court of Appeals reversed due to department’s failure to adequately inquire/give notice under ICWA. (I) LMF

Simkin, Allison — People v. Gonzalez, D053292 — Search warrant
Defendant moved to quash and traverse a search warrant. The trial conducted a closed hearing under People v. Hobbs (1994) 7 Cal.4th 948, 971, because the warrant affidavit referred to a confidential informant. The trial court denied the motion, and after trial, defendant appealed. The Court of Appeal did its own Hobbs review, but found one of the reports on which the warrant was based was missing from the documents provided to the Court of Appeal. The Court of Appeal reversed and remanded, directing the trial court to use the settled statement process to reconstruct the missing document. If the trial court then reinstates the judgment, appellant may again appeal. (A) NFA

Zivot, Tamara — People v. Valenzuela, D054302 — Lesser Included Offense; Probation Condition
After a court trial, the juvenile court returned true findings against minor for battery causing serious bodily injury (count 1) and simple assault (count 2). Court of Appeal reversed minor’s conviction for simple assault because it is a lesser included offense of battery causing serious bodily injury. The court also modified probation conditions adding the necessary knowledge requirement and deleting any reference to a co-offender, because there was no evidence of any. (A) LKH

Tetreault, Nancy — People v. Mercado, D044138 — Sentencing; Gang Enhancement
Court of Appeal struck a criminal gang enhancement (Pen. Code, § 186.22, subd. (b)) where appellant’s sentence was also enhanced for firearm use under section 12022.53, subdivision (e), which provides that enhancements may not be imposed under both sections, unless the defendant personally used a firearm. (I) NFA

Brisbois, Patricia — People v. Disarufino, E046155 — Lesser Included Offense
Carjacking conviction reversed because it is a lesser included offense of kidnapping for carjacking. Sentence related to carjacking and the corresponding handgun allegation also reversed. (I) AMJ

Ferguson, Susan — People v. Skiles, G040808 — Credits
The Attorney General conceded and the Court of Appeal agreed that appellant’s pre-sentence conduct credits award was improperly limited to 20% without any justification. (A) APJ

Harris, Donna — People v. Ayala, G040275, G042223 & G042307 — Gang Registration
Trial court erred in ordering gang registration, because there was no evidence the offenses were gang related, and gang order is stricken. (I) AMJ

Hinkle, Stephen — In re W.K., D053424 — Dual Convictions
Defendant was convicted of two counts of aggravated assault (Pen. Code, § 245, subd. (a)(1)) based on an incident in which he struck the victim with a baseball bat. The Court of Appeal found the evidence only supported a single assault and reversed the second count. (I) NFA

Forrey-Baker, Lelah — In re Anna S., D055036 — Effect of Opinion
Child had been removed from mother’s custody via a Welfare and Institutions Code section 388 petition. While the Court of Appeal dismissed mother’s appeal of the granting of the petition as moot, it did publish the decision in which it concluded trial court erred to extent it used a nonfinal opinion of the appellate court to alter its procedures and influence its decision regarding the child’s placement. (I) ACS

Toole, Merrill Lee — In re M.W., E045717 — Educational Rights Over Dual Status Child
Mother argued trial court erred by failing to appoint an attorney to represent her when her interest conflicted with her child’s interest at hearing to determine whether to place child in a residential treatment facility for emotionally-disturbed children. Child was a dual status youth as both a dependent and a ward of the court as a delinquent. Mother was represented by appointed counsel in the dependency court but not in the delinquency matter. The order limiting mother’s educational rights was issued in delinquency court. The Court of Appeal agreed the court erred in failing to appoint counsel for mother and the error was prejudicial because the attorney could have presented relevant evidence and called pertinent witnesses. The appellate court concluded that a result more favorable to mother is reasonably probable in this case had mother been represented by counsel at the hearing in question. The case was remanded to the delinquency court with directions to appoint counsel at a hearing to address whether to limit mother’s educational rights. (I) LLF

Owen, Thomas — People v. McDowell, E046920 — Penal Code Section 654
Appellant was convicted of two criminal offenses committed on the same day: selling cocaine base with the intent to promote a criminal street gang (Health & Saf. Code, § 11352, subd. (a); Pen. Code, § 186.22, subd. (b)) and active participation in a criminal street gang (Pen. Code, § 186.22, subd. (a)). The trial court sentenced appellant to four years on count 1, plus two years for the gang enhancement, and a consecutive term for count 2. On appeal, the Court of Appeal ordered the consecutive sentence on count 2 stayed pursuant to Penal Code section 654. The court concluded, “the only way the jury could have found defendant guilty of gang participation was by finding that he committed the underlying felony of selling cocaine base to promote a street gang. . . . Accordingly, almost by definition, defendant had to have the same intent and objective in committing his two crimes.” (I) LKH

Koryn, Daniel — People v. Marquez, G041202 — Prison Prior
The Court of Appeal agreed with appellant’s argument that a prison prior enhancement must be dismissed, because it is based upon the same conviction as a serious felony prior also imposed. (I) APJ