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The unpublished opinions from the following cases can be viewed by visiting the Judicial Council Web site. The unpublished opinions remain on the Judicial Council Web site for 60 days from the date of the filing of the opinion.

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Cases are posted on the Recent Victories page only after the remittitur issues.

January 2018

Staley, John — People v. Winchell, D069152 — Dual Convictions — Howard H. Shore, Judge — Opinion by Nares, J., with Benke, J., O’Rourke, J. Embezzlement and grand theft by larceny are different statements of the same offense and appellant may not be convicted of both based on the same conduct. (People v. Vidana (2016) 1 Cal.5th 632.) Because the trial court imposed a sentence on the embezzlement conviction but imposed and stayed the sentence on the grand theft conviction, which reflects the court's determination that embezzlement was the main conviction, the Court of Appeal struck the grand theft conviction. (I) PMI

Brandes, Elisa — People v. Ferrell, D070492 — Penal Code Section 654 — K. Michael Kirkman, Judge — Opinion by McConnell, P.J., with Huffman, J., O’Rourke, J. Appellant contended and the Attorney General conceded that the trial court should have stayed his concurrent sentences for burglary and annoying or molesting a minor under Penal Code section 654 as those charges all stemmed from the same underlying conduct as the charge of committing a lewd act on a child. The Court of Appeal remanded to the trial court with directions to resentence appellant. (I) MCR

Rudasill, Denise — In re David H., D070837 — Sufficiency of the Evidence — Opinion by Haller, J., with McConnell, P.J., O’Rourke, J. Trial court erred in denying minor’s section 701.1 motion because the prosecution did not present evidence showing minor intended to use the marking tools found in his possession to commit graffiti or vandalism. The true finding on that allegation is reversed. (I) LAR

Stevenson, Theresa/Jones, Cynthia — People v. Mitich/Stevenson, D070882 — Sentencing/Penal Code Section 654/Probation Conditions — Robert F. O’Neill, Judge — Opinion by Huffman, J., with McConnell, P.J., Irion, J. Where appellants were each sentenced consecutively for conspiracy to commit burglary and theft and for burglarizing the bank targeted by the conspiracy, the Court of Appeal found the separate terms violated Penal Code section 654 because there was a single criminal intent. The court also struck as unconstitutionally overbroad probation conditions requiring drug and alcohol testing and treatment, curfew, and probation officer approval of appellant’s employment and residence. (I) NFA

Romero, Lynda — People v. Carranza, D071046 — Lesser Included Offense/Abstract of Judgment — Ronald F. Frazier, Judge — Opinion by Nares, J., with Haller, J., Dato, J. Attorney General conceded and Court of Appeal agreed that convictions for driving under the influence of alcohol causing injury and driving with measurable blood alcohol causing injury must be dismissed. The convictions are lesser offenses necessarily included within the offense of gross vehicular manslaughter while intoxicated, of which appellant was also convicted. In addition, the abstract of judgment must be corrected to reflect that enhancements on counts with stayed sentences must also be stayed. (I) APJ

Rudasill, Denise — People v. El Mir, D071117 — Withdrawal of Guilty Plea — Gary G. Haehnle, Judge — Opinion by Huffman, J., with Aaron, J., Irion, J. While appellant was in custody on another case, he pleaded guilty to possession of alcohol in jail. Under the plea agreement, the parties agreed that appellant’s entire sentence would be served in state prison rather than county jail, but this was an unauthorized sentence. Because the trial court lacked authority to approve the unlawful sentence, the sentence is vacated and the case is remanded to allow appellant to withdraw his guilty plea if he chooses to do so. (I) PMI

Hinkle, Stephen — People v. Kosi, D071219 — Sentencing — David M. Gill, Judge — Opinion by Nares, J., with Haller, J., Dato, J. Case remanded for resentencing where record indicated that the sentencing court mistakenly believed consecutive sentencing was mandated by Penal Code section 1170.15, governing sentencing where the defendant has been convicted both of an initial felony and of dissuading a witness from providing information regarding the initial crime. In fact, section 1170.15 mandates that if consecutive terms are imposed then the terms shall be imposed in full (not 1/3-the-middle term). Both the probation report and the prosecutor incorrectly stated consecutive terms were statutorily mandated, and the record suggested the trial court accepted this conclusion. (I) NFA

Jones, Cynthia — People v. Nguyen, D072023 — Penal Code Section 654 — Garry G. Haehnle, Judge — Opinion by Nares, J., with Benke, J., Irion, J. Appellant argued and the People conceded that the trial court should have stayed his sentence for assault count under Penal Code section 654 because it was based on the same conduct as his conviction for elder abuse. The Court of Appeal agreed and modified the judgment to stay the sentence imposed for simple assault. (I) MCR

Khoury, Charles — People v. Amankrah, E064397 — Penal Code Section 654 — Cara D. Hutson, Judge — Opinion by Codrington, J., with Miller, J., Fields, J. Sentence modified pursuant to Penal Code section 654 to stay a nine-year Penal Code section 667.8 enhancement for kidnaping to commit a substantive offense of forcible rape because appellant is already being punished for that conduct pursuant to former Penal Code section 667.61. (I) LAR

Capriola, William — People v. Williams, E065033 — Lesser Included Offense/Sentencing — Angel M. Bermudez, Judge — Opinion by Ramirez, P.J., with Slough, J., Fields, J. Because simple assault is a lesser included offense of corporal injury on a spouse, appellant’s conviction for simple assault must be reversed. In addition, the trial court imposed an unauthorized sentence by staying three one-year prison prior enhancements. Because the trial court’s comments demonstrate it did not intend to impose the additional terms for these enhancements, the appropriate remedy is to strike the enhancements. (I) PMI

DiGuiseppe, Raymond — People v. Robinson, E065044 — Dual Enhancements — John M. Tomberlin, Judge — Opinion by Ramirez, P.J., with Slough, J., Fields, J. The trial court erred in imposing two enhancements for discharging a firearm causing great bodily injury or death under Penal code section 12022.53, subdivision (d), where appellant was convicted of only a single count of murder. Court of Appeal found that subdivision (f) of the statute flatly prohibited the imposition of two enhancements on a single count. The judgment was modified to stay the second firearm discharge enhancement. (A) MCR

Miller, Gerald — People v. McCloud (2017) 15 Cal.App.5th 948, E065359 — Transportation of Controlled Substance — Samuel Diaz, Jr., Judge — Opinion by Slough, J., with Miller, J., Codrington, J. Attorney General conceded and Court of Appeal agreed the trial court erred in failing to instruct the jury that to be guilty of the offense, under the amended statute, appellant was required to have transported a controlled substance for the purpose of sale. Attorney General argued, however, that the erroneous failure to instruct was not prejudicial. Court of Appeal found prejudice in this case where there were no indicia of sales and the expert was not able to opine, based on a hypothetical, that the amount conclusively established an intent to sell. (I) APJ

Haggerty, Edward — People v. Fores, E065455 — Gang Enhancements — Jon D. Ferguson, Judge — Opinion by Slough, J., with Ramirez, P.J., Fields, J. Appellant contended and the Attorney General conceded that the trial court erred in imposing four-year gang enhancements on sentences for murder, carjacking, and assault instead of the applicable 15-year minimum term for parole eligibility. The Court of Appeal agreed and modified appellant’s sentence to replace each four-year gang enhancement with a 15-year minimum term for parole eligibility. (I) HSI

Kessler, Daniel — People v. Aston, E065566 — Penal Code Section 1170.126 (Prop. 36) — Timothy F. Freer, Judge — Opinion by Miller, J., with Codrington, J., Slough, J., concurring in part and dissenting in part. Appellant, having been convicted of driving/taking a vehicle with three strikes, was sentenced to 25-years-to-life under the Three Strikes Law. He was later denied relief under Prop. 36 because the trial court found he was personally armed during the offense. That finding was based upon the record of conviction, which contained references to a machete found at the scene where the stolen vehicle had crashed with appellant inside. The Court of Appeal agreed with appellant that insufficient evidence supported the trial court’s finding that he was armed. In so concluding, the court acknowledged that a concession by defense counsel during pretrial motions would be part of the record of conviction; however, careful review of defense counsel’s statements in the trial court showed that he never explicitly conceded a machete existed. Likewise, a photograph of the crash site, which was admitted into evidence did not provide sufficient evidence of a machete. And finally, comment of the court and prosecutor did not constitute evidence that the machete existed. Accordingly, the matter must be remanded for a new dangerousness finding. While the court below stated it would not find appellant to be a danger, the Court of Appeal noted both that the circumstances may have changed and that the People never had an opportunity to appeal that finding. Dissenting on this point, Justice Slough would have remanded for a re-sentencing, where the People might be given an opportunity to move for reconsideration of the dangerousness finding. (I) APJ

Moller, Richard — People v. Rios, E066142 — Probation Conditions — Jean P. Leonard, Judge — Opinion by McKinster, J., with Ramirez, P.J., Miller, J. Court of Appeal found that the electronic search condition was overbroad and that searches should be limited to communication or information reasonably likely to reveal whether appellant is engaging in sexual offenses or otherwise not complying with his probation conditions. The court also stated that the condition requiring appellant to participate in periodic polygraph tests should be tailored to focus the scope of the polygraph on criminal conduct related to the sex offender management program. The Attorney General conceded with respect to the electronic search condition. Both probation conditions are modified. (I) MCR

Bostwick, James — People v. Scott, E066467 — Penal Code Section 1170 — Michael A. Smith, Judge — Opinion by Ramirez, P.J., with McKinster, J., Codrington, J. Approximately 17 years after beginning to serve a life without parole (LWOP) sentence, appellant filed a petition with the superior court to recall his sentence pursuant to Penal Code section 1170, former subdivision (d)(2). But the superior court treated the petition as if it were a petition to recall a sentence under the “Three Strikes” law and denied it. The Court of Appeal reversed with directions for the trial court to properly exercise its discretion under section 1170, subdivision (d)(2), and the relevant criteria stated therein. After many continuances, the superior court denied the motion, finding defendant did not make the required showings of remorse and actions of rehabilitation by a preponderance of the evidence. On January 1, 2017, section 1170, subdivision (d)(2)(E) – which is by its statutory language retroactive – was amended to provide that the superior court “shall recall the sentence and commitment previously ordered and hold a hearing to resentence the defendant in the same manner as if the defendant had not previously been sentenced” if it “finds by a preponderance of the evidence that one or more of the statements specified in clauses (i) to (iv), inclusive, of subparagraph (B) is true.” In other words, the court under the amended language must hold the resentencing hearing if it finds by a preponderance of the evidence any one of the four factors set forth in section 1170, subdivision (d)(2)(b)(i)-(iv) – even if defendant had not established remorse or rehabilitation. The People conceded that remand is required. (I) HCC

Lampkin, David — People v. Garcia, E066919 — Sentencing — Richard T. Fields, Judge — Opinion by Ramirez, P.J., with Miller, J., Slough, J. Appellant was convicted of assault with a deadly weapon on a peace officer, battery on a peace officer, and resisting an officer with force, all based upon the same conduct. In a prior appeal, Court of Appeal agreed with appellant that sentence on two counts must be stayed pursuant to Penal Code section 654, and ordered modification of the abstract of judgment. In this appeal from the denial of a Proposition 36 petition, it was noticed that the correction was never made. Attorney General and Court of Appeal agreed the correction must be made. (I) APJ

Wrubel, Sharon — People v. Swank, E066984 — Sentencing — Eric M. Nakata, Judge — Opinion by Miller, J., with Codrington, J., Slough, J. Trial court erred in imposing a sentence of seven years to life for attempted murder instead of life with the possibility of parole. In addition, the court erred in imposing a parole revocation fine because appellant was sentenced on another count to life without parole. Abstract ordered corrected. (I) LAR

Moller, Richard — People v. Taylor, E067097 — Minute Order/Abstract of Judgment — R. Glenn Yabuno, Judge — Opinion by Miller, J., with Slough, J., Fields, J. Minute order and abstract of judgment ordered corrected to reflect that appellant was convicted of assault with intent to commit sexual penetration by foreign object rather than assault with intent to commit mayhem, rape, sodomy, or oral copulation. (I) APJ

Johnson, Lauren — In re Q.G., E068018 — Indian Child Welfare Act (ICWA) — Annemarie G. Pace, Judge — Opinion by Codrington, J., with McKinster, J., Miller, J. Mother argued and Court of Appeal agreed the agency and trial court erred in finding the ICWA did not apply when the agency failed to notify 2 of 3 named Indian tribes with notice of any kind. Appellate court remanded with a conditional reversal. (I) LLF

Thue, Matthew/Jarvis, Michelle — In re N.F., E068035 — Parental Unfitness Finding — Steven A. Mapes, Judge — Opinion by Fields, J., with Ramirez, P.J., Slough, J. Father argued and the Court of Appeal agreed the trial court erred in terminating father’s parental rights based on poverty-based lack of housing when father had otherwise completed his services. Relying on father’s poverty violated his due process rights and the trial court’s findings were reversed and case remanded. (I) LLF

Thue, Matthew — In re A.K., E068525 — Reasonable Reunification Services — Steven A. Mapes, Judge — Opinion by Slough, J., with Miller, J., Fields, J., Court of Appeal reversed the juvenile court’s determination that the Agency had provided reasonable reunification services to Father. In the case plan, the Agency had recommended a psychological evaluation for Father because of his mental health issues. The Agency also recommended a substance abuse program. The Agency never provided the referral for a psychological evaluation and forgot to provide the substance abuse treatment referral until two weeks before the six-month review hearing. Nonetheless, the juvenile court found reasonable reunification services had been offered. The Court of Appeal found it especially egregious that Father was not given the psychological evaluation, even though it was in the case plan, and even though Father had been appointed a guardian ad litem in the case. The Court found services were unreasonable on the basis of failure to provide a psychological evaluation. It did not reach the question of whether services were unreasonable due to the failure to provide substance abuse treatment. The Agency argued, among other things, that Father was not prejudiced by the court’s reasonable services finding. After all, the juvenile court had provided Father an additional six months of services. The Court of Appeal rejected the Agency’s argument. It found that Father was likely to suffer adverse consequences down the line because of the juvenile court’s reasonable services finding at the six-month review hearing. The Court concluded the harmless error rule should not apply to a reasonable services finding. (I) MAC

Romero, Lynda/Olsen, Nancy — People v. Zuniga/Tello, G052162 — Sanchez Hearsay/Penal Code Section 654 — Cheri T. Pham, Judge — Opinion by Moore, J., with Bedsworth, J., Thompson, J. As to appellant Zuniga, convictions reversed because gang expert’s testimony about appellant’s prior contacts with police consisted of both case-specific and testimonial hearsay; thus, it fails the two-step criteria for expert hearsay put forth in People v. Sanchez (2016) 63 Cal.4th 665. As to appellant Tello, appellant argued and the Attorney General conceded that his sentence for participation in a criminal street gang should have been stayed pursuant to Penal Code section 654 (People v. Mesa (2012) 54 Cal.4th 191). The judgment is modified to stay appellant’s two-year sentence for being an active gang member. (I) LKH

Haggerty, Edward — People v. Grimes, G052926 — Insufficient Evidence/Abstract of Judgment — Frank F. Fasel, Judge — Opinion by O’Leary, P.J., with Bedsworth, J., Aronson, J. Insufficient evidence supported the jury’s true finding that appellant personally inflicted great bodily injury under the group beating theory where appellant’s actions demonstrated only that he aided and abetted the person who inflicted the beating. Additionally, the abstract of judgment ordered corrected to reflect that a three-year term on an enhancement was ordered to run concurrent. (I) PMI

Lindsley, Kevin — People v. Faust, G053069 — Probation Conditions — Steven D. Bromberg, Judge — Opinion by Aronson, J., with Bedsworth, J., Thompson, J. In an appeal from the revocation of his parole, appellant contended that a number of terms and conditions of his parole were unconstitutional. The Court of Appeal agreed as to the special condition prohibiting appellant from being on the property of any residence unless the occupants knew of his criminal history and he obtained approval from his parole agent. This condition included motel and hotel rooms. The Court directed the trial court to modify the condition to include contingencies for situations when the parole agent is unavailable. The new condition as modified is to include the following language: “If the parole agent is unavailable to authorize entry, you may enter the residence or motel/hotel if you have left a message for the agent explaining the reason for the visit and no minors are present.” (A) MCR

Jones, Jason — People v. Bello, G053370 — Sentencing — Lance Jensen, Judge — Opinion by Fybel, J., with Ikola, J., Thompson, J. The trial court imposed a 10-year term for a gang enhancement predicated on the infliction of great bodily injury, and a 3-year term for personal infliction of great bodily injury based on the same injury. Because both enhancements qualify as a great bodily injury enhancement under Penal Code section 1170.1, subdivision (g), only the greater enhancement can be imposed. The 3-year term must be stayed. (I) PMI

Melcher, William — People v. Alcozer G053906 — Probation Conditions — Michael J. Cassidy, Judge — Opinion by O’Leary, P.J., with Moore, J., Aronson, J. Court of Appeal modified probation condition prohibiting appellant from associating with various persons. The court left in place the prohibition against associating with felons, parolees, drug users, etc., but eliminated as unconstitutionally overbroad the condition appellant not associate with persons disapproved by the probation officer. (A) NFA

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