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The unpublished opinions from the following cases can be viewed by visiting the Judicial Council Web site. The unpublished opinions remain on the Judicial Council Web site for 60 days from the date of the filing of the opinion.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 2017

Katz, Paul J. — People v. Quirino, G050926 — Insufficient Evidence Gang Enhancements/Penal Code Section 1179.18 (Prop. 47)/Lab Analysis Fee — M. Marc Kelly, Judge — Opinion by Ikola, J., with Bedsworth, J., Fybel, J. Gang enhancements stricken where there was nothing in the record to suggest appellant intended to commit the gun and methamphetamine possession crimes for the benefit of his gang. Also, the reduction of a prison prior felony to a misdemeanor after appellant was sentenced, but before re-sentencing on remand, means that the prior conviction no longer supports a prison prior enhancement. Additionally, the lab analysis fee is not warranted where appellant was not convicted of any offense specified in the statute. (I) PMI

Conrad, Leslie — People v. Bell, E063234 — Juvenile Life Without Parole (LWOP) — Patrick F. Magers, Judge — Opinion by Ramirez, P.J., with Hollenhorst, J., Codrington, J. Appellant committed a first degree murder with special circumstances as a minor and received a LWOP sentence in 2005. In 2014, in response to appellant’s habeas petition, the California Supreme Court ordered the trial court to re-sentence him. (People v. Gutierrez (2014) 58 Cal.4th 1354 [listing five factors that must be considered before imposing life without parole for special circumstances murder when committed by a juvenile].) The trial court once again sentenced appellant to life without parole. The Court of Appeal held the trial court abused its discretion by refusing to consider evidence of post-sentence rehabilitation. (People v. Lozano (2016) 243 Cal.App.4th 1126, 1137-1138.) The court also concluded appellant was not required to make an offer of proof to show prejudice. (I) HCC

Rich, Renee — People v. Demedio, E063425 — Sentencing — Angel M. Bermudez, Judge — Opinion by Ramirez, P.J., with McKinster, J., Slough, J. Attorney General conceded and Court of Appeal agreed that appellant is entitled to a second- strike sentence on his conviction for receipt of stolen property because it is not a serious or violent offense. In addition. the trial court erred by staying, rather than striking appellant’s prior prison term enhancements where the same prior convictions were the basis for serious felony five-year enhancements. (I) PMI

Barry, Leslie A. — In re Z.G., et al. (2016) 5 Cal.App.5th 705, G053232 — Bypass of Reunification Services — Gassia Apkarian, Judge — Opinion by Thompson, J., with O’Leary, P.J., Bedsworth, J. Minor-appellant argued the trial court erred in granting reunification services to the parents when the juvenile court found the allegation per section 300, subd. (f) [death of another child through neglect], true and the court should have applied the bypass provisions in section 361.5, subd. (b)(4) [death of another child through neglect]. Juvenile court held the parents should be given another chance based on their grief following the death of their child, but the appellate court held reunification had no chance of success since the parents had failed to do any reunification services in the year between the detention and jurisdiction/disposition hearings and reunification was not in the children’s best interest. (I) LLF

Klein, Jill M. — People v. Banks, E061755 — Fines/Fees/Abstract of Judgment — W. Charles Morgan, Judge — Opinion by McKinster, J., with Codrington, J., Slough, J. Various fines and fees not orally imposed by the court, but which appear on the abstract of judgment, were ordered stricken. The abstract of judgement was also ordered corrected to reflect the actual sentence imposed by the court. (I) BCT

Rogers, Tracy A. — People v. Swann, D069217 — Penal Code Section 1170.18 (Prop. 47) — Michael T. Smyth, Judge — Opinion by Huffman, J., with Benke, J., Haller, J. The order denying appellant’s Prop. 47 petition is reversed and matter is remanded with directions to grant the petition. Appellant’s second degree burglary conviction is eligible for reduction under Prop. 47, even though he entered a building intending to commit theft by false pretenses, not larceny. Court of Appeal adheres to the view that Penal Code section 459.5 includes thefts by means other than larceny. (I) LKH

Schuck, John F. — In re M.M., E064843 — Multiple Prosecutions — F. Paul Dickerson III, Judge — Opinion by Ramirez, P.J., with Hollenhorst, J., Miller, J. The juvenile court granted minor’s motion to dismiss a burglary petition under People v. Kellett (1966) 63 Cal.2d 822, because minor had already admitted an allegation of receiving stolen property based upon the same incident and had been on probation for that offense for five months when the subsequent petition was filed. The People appealed the dismissal. Court of Appeal affirmed the dismissal concluding that the People knew, or should have known, the offenses were related. In addition, both offenses were part of a continuous course of conduct and involved substantially overlapping evidence. (I) HCC

Siroka, Matthew A. — People v. Bravo, Jr., G051346 — Dual Convictions/Penal Code Section 1170.18 (Prop. 47) — Cheri T. Pham, Judge — Opinion by Thompson, J., with Bedsworth, J., Ikola, J. Appellant was convicted of two counts of carrying a loaded firearm in a vehicle under two distinct circumstances which elevated the offense to a felony. One conviction was for appellant’s possession of the firearm as a convicted felon, (§ 25850, subd. (c)(1)) and the other was for possession of the firearm when he knew or had reason to know it was stolen (§ 25850, subd. (c)(2)). Court of Appeal reversed one of the counts because it was error to split possession of a single loaded handgun into two separate charges. In addition, during the pendency of the appeal, a prior theft conviction which was the basis of a prior prison term enhancement in this case, was redesignated as a misdemeanor under Prop. 47. Since the prior theft conviction is now a misdemeanor and the current judgment is not final, the one-year prison term imposed for the prior theft conviction was ordered stricken. The court noted the Supreme Court has granted review on whether Prop. 47 retroactively invalidates a prior prison term enhancement. (I) BCT

Booher, Robert — People v. Hernandez, D069788 — Probation Condition — Daniel F. Link, Judge — Opinion by Huffman, J., with McConnell, P.J., Benke, J. Court of Appeal agreed that electronic search condition imposed in this case, and objected to by trial counsel, fails the test of reasonableness under People v. Lent (1975) 15 Cal.3d 481. Trial court directed to strike the condition. (I) LAR

Staley, John L. — In re A.S., E065614 — Sealing Juvenile Records — Robert J. McIntyre, Judge — Opinion by Ramirez, P.J., with Hollenhorst, J., Miller, J. Trial court abused its discretion in refusing to seal minor's school records as it pertained to a dismissed petition for which sealing was sought under Welfare and Institutions Code 786, subdivision (e)(2) [discretionary sealing of records in the custody of a public agency]. Either the court's misunderstood its discretion if it erroneously believed a school district is not a public agency, or it simply failed to exercise its discretion in determining whether sealing the school records will promote the successful reentry and rehabilitation of minor. Reversed and remanded to allow the juvenile court to make a factual determination in the first instance regarding whether sealing the school records that refer to the juvenile court proceedings will promote minor's reentry and rehabilitation. In so doing, the opinion made note of the minor's improvement in grades and behavior, completion of community service, compliance with conditions of probation, and conduct as a law abiding citizen since August 2013. (I) AMJ

Bauguess, Susan S. — People v. Rivas, G051672 — Penal Code Section 1170.18, (Prop. 47) — Thomas A. Glazier, Judge — Opinion by Moore, J., with Bedsworth, J., Aronson, J. Appellant pled guilty to one count of felony possession of methamphetamine and one count of street terrorism. In 2015, he successfully petitioned the court under Prop. 47 to have his methamphetamine possession count reduced to a misdemeanor. However, the trial court denied his request to dismiss the street terrorism count, stating that a Prop. 47 petition was not an appropriate vehicle for seeking dismissal. The Court of Appeal ruled that the street terrorism count should be dismissed because the predicate felony required for the conviction had been re-classified as a misdemeanor for all purposes. Moreover, the court deemed it would be an unnecessary burden on defendants and the courts to force defendants in this position to pursue collateral relief via separate petition. Matter remanded for dismissal of the street terrorism conviction. (I) MCR

Webb, Reed — People v. Doria, E065879 — Penal Code Section 1170.18 (Prop. 47) — Becky Dugan, Judge — Opinion by Ramirez, P.J., with Miller, J., Codrington, J. In this People’s appeal, the Court of Appeal affirmed the reduction of respondent’s felony commercial burglary conviction under Prop. 47. Although respondent had a co-defendant with him in this petty theft, the People did not allege a conspiracy and so was precluded from doing so now. (I) LAR

De La Sota, Richard — People v. Rivera, E063917 — Sentencing — Graham A. Cribbs, Judge — Opinion by Ramirez, P.J., with Hollenhorst, J., Miller, J. One of appellant’s five-year serious felony prior enhancements must be stricken from both his determinate and indeterminate terms because two of the three serious felony prior convictions arose from the same case. A one-year prior prison term enhancement must also be stricken from both the determinate and indeterminate terms because it is based on the same conviction as one of the serious felony prior enhancements. (I) PMI

Hill, Melissa — People v. Barbarin, D068066 — Franklin Hearing — Christian F. Thierbach, Judge — Opinion by Huffman, J., with Nares, J., Haller, J. After a remand from the California Supreme Court, Court of Appeal remanded the case to the superior court for the limited purpose of providing appellant with an adequate opportunity to present mitigating information consistent with the dictates of People v. Franklin (2016) 63 Cal.4th 261 for a future youth-offender parole hearing. (I) PMI

Shaler, Susan K. — People v. Medel, E062247 — Penal Code Section 654 — Michael B. Donner, Judge — Opinion by Miller, J., with Ramirez, P.J., Codrington, J. Concurrent sentence for assault with a deadly weapon ordered stayed pursuant to Penal Code section 654 because the conviction was based upon the same act as the attempted voluntary manslaughter conviction for which appellant was separately punished. (I) APJ

Hermansen, Kurt D. — People v. Galvan, Jr., E063887 — Penal Code Section 1170.18 (Prop. 47) — Becky Dugan, Judge — Opinion by Ramirez, P.J., with Hollenhorst, J., Miller, J. Court of Appeal affirmed the trial court’s order granting Prop. 47 relief on respondent’s burglary conviction for entering EZ Check Cashing with the intent to cash a stolen $351.75 money order. Where the People did not contest respondent’s claim regarding value of the property nor challenge the sufficiency of the petition in the trial court, Court of Appeal found that the court did not abuse its discretion in reaching the merits of respondent’s petition. Because the People never charged an identity theft crime, Court of Appeal rejected the People’s claim on appeal that respondent was ineligible for Proposition 47 relief because he had committed an identity theft crime. Finally, the Court of Appeal found that the check-cashing establishment qualified as “commercial” under Prop. 47. (I) CBM

Covin, Randi — People v. Hudgins, E059858 — Prosecutorial Misconduct — Jeffrey L. Gunther, Judge — Opinion by Codrington, J., with Ramirez, P.J., Hollenhorst, J. The parties were allowed an additional 10-minute closing argument when jury indicated it was hung 6-to-6. During that time, the prosecutor not only appealed to the sympathy of the jury, arguing it should consider the impact of the crime on the victim’s family, the prosecutor urged the jury to return guilty verdicts because of the time invested in this trial and because more time would be wasted in retrying the case if the jury did not reach guilty verdicts. The court not only overruled the defense objections, it told the jury the arguments were not misconduct. Court of Appeal found that the arguments were misconduct and, where the evidence was close, the misconduct was prejudicial. Appellant’s special circumstance murder conviction and premeditated attempted murder conviction are reversed. (I) PMI

Torres, Steven A. — People v. Dominguez, G051747 — Resentencing — Kelly L. Hansen, Judge — Opinion by Moore, J., with Aronson, J., Ikola, J. Appellant was resentenced after the trial court reversed his conviction on nine of 24 counts of lewd act on a child under the age of 14. As part of the resentencing, the court violated double jeopardy protection by increasing the fines imposed under Penal Code sections 1202.4, 1202.45 and 290.3. The abstract of judgment also included an additional fine and a weapons prohibition provision that were not orally pronounced. Finally, appellant’s credits were incorrectly calculated on the abstract of judgment. Attorney General conceded all points. Case remanded to trial court to eliminate additional fines, strike weapon prohibition provision and give appellant additional credits. (I) MCR

King, Nancy J. — People v. Aguon et al., D064367 — Franklin Hearing — Joan P. Weber, Judge — Opinion by Huffman, J., with McConnell, P.J., Aaron, J. Appellant was convicted as a juvenile and sentenced to 50-years-to-life in state prison. However, under Penal Code section 3051, he is eligible for a youth-offender parole hearing after serving 25 years of his sentence. While appellant presented some mitigation evidence at the time of his sentencing, there was not then the same motivation and need to present information explaining the wide array of youth-related mitigating factors that there is in light of the holding in People v. Franklin (2016) 63 Cal.4th 261. Case remanded for appellant to create a record of mitigation evidence to be used at his youth-offender parole hearing. (I) MCR

Holzer, William G. — In re Haley, G053792 — Insufficient Evidence/Gang Offense — Gary S. Paer, Judge — Opinion by Bedsworth, J., with Fybel, J., Ikola, J. In People v. Rodriguez (2012) 55 Cal.4th 1125, the Supreme Court determined a defendant cannot commit the crime of participation in a criminal street gang alone. Respondent conceded, and the Court of Appeal agreed appellant’s 2005 convictions for this offense are not supported by sufficient evidence in light of the new Rodriguez opinion. Defendant’s petition granted; unsupported convictions reversed. (I) CBM

Jones, Cynthia M. — People v. Corpening (2016) 2 Cal.5th 307, D064986, S228258 — Penal Code Section 654 — Francis M. Devaney and Kathleen M. Lewis, Judges — Opinion by Cuéllar, J., with Cantil-Sakauye, C. J., Werdegar, J., Chin, J., Corrigan, J., Liu, J., Kruger, J. Appellant was convicted of both carjacking and robbery based on the same forceful taking of a vehicle. The issue was whether the forceful taking of the vehicle –– the same taking that, according to the prosecution, accomplished the crimes of both robbery and carjacking –– constituted a single physical act subject to the prohibition on multiple punishment under section 654. Since the same action completed the actus reus for each of these two crimes, the court held that section 654 forbade punishment under both provisions. (I) HCC

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