The unpublished opinions from the following cases can be viewed by visiting the Judicial Council Web site. The unpublished opinions remain on the Judicial Council Web site for 60 days from the date of the filing of the opinion.

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

DECEMBER 2009

Nichols, Diane — People v. Chillis, D053082 — Striking of Illegal Double LWOP Sentence
The Court of Appeal agreed with appellant’s argument that an LWOP sentence is not subject to doubling under the Three Strikes Law and, thus, struck the second of appellant’s double LWOP sentences. (I) APJ

Schmitt, Melissa – In re Luis D., D053647 – Probation Conditions
Two probation conditions reversed and case remanded for the limited purpose of allowing the trial court to consider whether to impose either or both conditions of probation. The record was unclear whether the parties agreed to omit one or both of the probation conditions and the record did not show the court actually exercised its discretion when it imposed both conditions. (A) BCT

Hinkle, Stephen M. — People v. Brown, D053951 — Reversal of Multiple Convictions for Same Offense
The Attorney General conceded and the Court of Appeal agreed that, because pimping and pandering are continuous conduct crimes, appellant could not be convicted of two counts of pimping and pandering a victim before her 16th birthday and a separate two counts of pimping and pandering (under a different statute calling for decreased penalties) the same victim after her 16th birthday. The Court of Appeal reversed the latter counts. The Court of Appeal also stayed, pursuant to Penal Code section 654, pandering counts based on conduct underlying pimping counts. (I) APJ

Clark, Marcia - People v. Espoinoza, D054750 - sentencing
Prison prior ordered stricken not stayed. (I) LAR

Howell, Robert Franklin — People v. Simpson, D055156 — Reversal of Lesser Included Offense and Sentencing Corrections
The Attorney General conceded and the Court of Appeal agreed that conviction for theft must be stricken as an offense necessarily included within the robbery conviction. The Court of Appeal also corrected the sentence to strike five serious felony enhancements and one prison prior enhancement. (I) APJ

Schwartzberg, Richard – People v. Fletcher, E046274– Double Jeopardy
Judgment reversed because the double jeopardy clauses of state Constitution barred appellant’s second trial because the trial court declared a mistrial in his first trial without legal necessity. (I) MCR

Morse, David — People v. Gilmore, E043278 — Sufficient evidence, hate crime enhancement
Court of Appeal reversed hate crime enhancement for insufficient evidence. Appellant was convicted of attempted premeditated murder for a drive-by shooting against an Hispanic gang member; appellant was also convicted of assault with a firearm based on the fact an errant bullet in the attack struck a bystander/child, who was also Hispanic. The Court of Appeal found there was sufficient evidence to support the hate crime enhancement against the targeted attempted murder victim, but not against the bystander victim because the bystander's race was not a motivation for the crime. (I) NFA

Haggerty, Edward — People v. Sanchez, E046099 — Description
In published portion of opinion, court found term for gang participation in violation of Penal Code section 186.22, subdivision (a), should have been stayed under Penal Code section 654, because appellant was also punished for robbery, which was necessary to satisfy the gang participation charge. Court also corrected errors on abstract of judgment. (I) JLP

Clark, Marcia - P v. Beltran, E046432 - sentencing/priors
Prison priors should have been stricken, not stayed. (I) LAR

De La Sota, Richard — People v. Torrez, E046611 — Reversal of Gang Offense for Insufficient Evidence of Predicate Offenses
The Court of Appeal agreed with appellant’s argument that there was insufficient evidence of predicate offenses to support the gang offense where two of the three proffered predicates post-dated the current offense and the current offense is not listed as a possible predicate offense in Penal Code section 186.22, subdivision (e). Reversal will result not only in elimination of sentence for the gang offense but also a striking of the “nickel” prior enhancement which attached only because of the gang offense. (I) APJ

Bronson, Phillip – People v. Albert Cabrera, E046971 – Pre-sentence Custody Credits
Trial court erroneously calculated appellant’s good-time credits under Penal Code section 2933.1, rather than section 4019. Court of Appeal orders the trial court to amend the minute order and abstract of judgment in this regard. (I) LKH

Cava, Dennis – People v. Solano, E047515 – LIO
Conviction for spousal battery (Pen. Code, §243) ordered stricken as LIO of Spousal Abuse (Pen. Code, §273.5). (I) PED

Hinckle, Stephen – People v. Lopez, E048020 – 654 & misc. sentencing
Sentence for receiving stolen property stayed pursuant to Penal Code section 654 as part of burglary. $150 order for attorneys fees ordered stricken as it was not supported by substantial evidence that defendant had ability to pay. (I) PED

Olsen, Jacob — In re A.R., E048633 — Limited ICWA reversal for inquiry
Riverside County Department of Public Social Services and parent’s counsel stipulated to a limited reversal and remand to superior court to comply with inquiry and possible notice requirements of the Indian Child Welfare Act (ICWA). Father was never asked about possible Indian heritage. Following the stipulation, the Court of Appeal ordered the agency to ask father about Indian heritage, if father claims possible Indian heritage, the agency was ordered to provide appropriate notice. If after notice, the children are identified as Indian children, the juvenile court to comply with applicable ICWA requirements for a new section 366.26 hearing. If no Indian heritage is identified, trial court to reinstate the original orders terminating parental rights. (A) LMF

Wrubel, Sharon -People v. Medina; Hart, Mark– People v. Mora, G040048 –Insufficient Evidence -Attempted Murder
Conviction for attempted murder reversed for insufficient evidence where the prosecutor relied on the kill zone theory regarding attempted murder, but the attempted victim was not an intended target of the shooter. The shooter did not use a means of killing rival gang members that would inevitably result in the death of other nearby. Conviction modified to reflect convictions for the lesser included offense of assault with a firearm. (I) MCR

Polsky, David L. – People v. Johnson G040319 – Sufficiency of Evidence, Concurrent vs. Consecutive Sentencing
Two counts of dissuading a witness (Pen. Code, §136.1, subd. (a)(1) dismissed on insufficiency grounds. Sentence on false personation (§529, subd. (b)(3)) and possession of counterfeit bills (§476) ordered reversed and matter remanded to determine whether to sentence concurrently or consecutively. (I) PED

Bauguess, Susan, — People v. Phan, G040689 — credits
Court of Appeal and Attorney General agree appellant is entitled to one more day of credit. (I) AMJ

Yanis, Mark — People v. MacIntosh, G041043 — suspension of sentence error
Remanded for resentencing because trial court erred in suspending sentence on the misdemeanor, which is only allowed if probation is granted, while ordering a state prison sentence on the felony. (A) AMJ

Bronson, Phillip I. — In re Simon S., G041613 — Prejudicial Exclusion of Evidence
The Court of Appeal agreed with minor’s argument that the juvenile court prejudicially erred when it excluded evidence concerning victim’s sexual activity just prior to the rape by intoxication alleged against minor. Witness would have testified that the victim was alert and had consensual sex with him just 20 minutes before she was allegedly too intoxicated to consent to sex with the minor. Given other evidence of credibility problems with the victim, the exclusion of that evidence was prejudicial. (I) APJ

Levine, Marsha — In re Jared L., G041920 — Reunification Services for Parents
Minor-appellant argued court’s order for additional reunification for parents following 25 months of services and a true finding on an amended 387 petition was error. The Court of Appeal agreed finding if a dependent child was returned to the custody of a parent at the 12-month or 18-month review hearing, and a 387 petition was subsequently sustained and the child was removed again, the court must set a hearing under section 366.26 unless the court finds there is a substantial probability of return. (Cal. Rules of Court, rule 5.565(f).) In this case, the almost 2-year-old child was removed in August 2006. After extensive reunification services, the child was eventually returned to father’s custody in January 2008. A new 387 petition was filed in September 2008 alleging the parents were involved in a domestic violence incident. At the April 2009 hearing, the court ordered additional reunification services to both parents. The Court of Appeal reversed and remanded to the juvenile court with orders to set a section 366.26 hearing. (I) LLF

Boyce, Robert - P v. Clarke; D053450- insufficient evidence
AG agreed there was insufficient evidence to support one of the several residential burglary counts because there was no evidence showing the location of the ATM machine used to obtain a cash advance from the stolen credit card. (I) LAR

Rogers, Tracy — People v. Ruiz, D053682 — Jury instruction
Court of Appeal reversed judgment because trial court erroneously instructed jury with CALCRIM No. 250, which informed the jury “a person acts with wrongful intent when he or she intentionally does a prohibited act.” The court found that this instruction led to a prejudicial federal constitutional error by removing the specific intent element of Vehicle Code section 2800.2 from the jury’s consideration. (A) JLP

Klein, Jill - People v. Sosa, D054304 - insufficient evidence/sentencing error
Court agreed D’s conviction of child endangerment was not supported by sufficient evidence. The Court found the record was devoid of even a modicum of evidence suggested that D undertook any caregiving responsibilities , that he supervised the children or was ever alone with them. The two counts were reversed. Case also sent back for resentencing as section 654 prohibited multiple punishment for possession for sale and transportation of the same substances. (A) LAR

Clark, Marcia — People v. Anunciation, D054988 — Crawford/Melendez-Diaz violation
Court of Appeal reverses appellant’s second degree murder conviction, finding his Sixth Amendment right to confrontation was violated when the prosecution failed to call the examining pathologist to testify at trial. Instead, another pathologist testified as to the examining pathologist’s findings. (I) LKH

Vogelmann, Monica — Conservatorship of Elaine R., D055193 — LPS Conservatorship reversed.
This LPS conservatorship was established when trial counsel represented to the court the client (who was absent) did not oppose the conservatorship. The conservatee argued her due process rights were violated because there was an inadequate foundation for concluding a knowing and intelligent waiver of her right to be present or for her consent to the conservatorship. Respondent asked the Court of Appeal to remand the case to permit the conservatee to contest the conservatorship. The court agreed to do so noting the issue presented was on review with the California Supreme Court. (I) LMF

Kaiser, Donna – In re A.L., D055540 – Dependency/388 Petition
Juvenile court denied mother’s section 388 petition under a clear and convincing standard of proof. Mother argued on appeal that preponderance of the evidence was the applicable standard. The agency agreed and asked that the case be remanded for a new hearing where the appropriate standard is applied. Appellate court agreed and specifically noted that juvenile court’s comment that the case was “very close” supported finding error was not harmless. (I) (LMF)

Schuck, John – People v. Mitchell, E045760 – Failure to instruct on a lesser included offense.
Appellant’s conviction for possession of cocaine for sale (Health & Saf. Code, § 11351) is reversed where the trial court failed to instruct on the lesser included offense of simple possession. (I) LKH

Rehm, Joanna — People v. Tarris, E046290 — Fines and Fees, Penal Code section 654
Court of Appeal found that fines under Health and Safety Code section 25189.5, subdivision (e) for both hazardous waste disposal and transportation crimes violated Penal Code section 654, even though sentence was suspended for a grant of probation; it ordered the $17,5000 fine imposed on one count stayed. Additionally, the Court ordered the security fee amount based on five offenses reduced to the proper amount based on three offenses and ordered the Government Code section 70373 fee stricken because the statute had not yet taken effect at the time of sentencing. (A-M) APJ

Crawford, James - P v Brown, e046543 - priors/sentencing
Trial court failed to secure a knowing and intelligent admission of defendant’s prior strike conviction. Case remanded for a further court trial on the alleged prior strike conviction and for resentencing. (I) LAR

Tran, Thien — People v. Brown, E046970 — Probation Revocation Restitution Fine
Court ordered probation revocation fine ordered in amount of $400 reduced to $200, where restitution fine was $200. (I) JLP

Fitzer, Richard — People v. Drake, E047268 — Sentence After Probation Violation
Court of Appeal reversed sentence after probation violation, where court erroneously relied on events after last reinstatement of probation [in two cases] as aggravating factors to justify sentence. (I) APJ

Schuck, John — People v. Trudell, E047860 — Penal Code section 654
Attorney General conceded and Court of Appeal agreed that sentences for both assault with a deadly weapon and infliction of a corporal injury on a co-habitant violated Penal Code section 654 and ordered the former stayed. (I) APJ

Bovee, John — People v. Cheatham, E048322 — Counsel Fees
Attorney General conceded and Court of Appeal agreed substantial evidence did not support appellant’s ability to pay attorney fees, and therefore, appropriate remedy was striking of attorney fees rather than remand. (A) JLP

DiGrazia, Lisa A. — In re Susan G., E048644— Failure to properly notice under ICWA
The termination of parental rights was reversed for failure to properly notice the tribes under the Indian Child Welfare Act. (I) CAG

Gray, Janet; Marshall, Gregory — People v. Lara and Wachter, G040314 — Instructional Error
After a gang confrontation, there was another in which Wachter exchanged fired, hit no one, but was hit himself. As Wachter shouted for help. Lara then appeared and fired at Wachter’s assailants. Lara and Wachter were tried – the former as perpetrator and the latter as an aider/abettor – for first degree murder, attempted murder, and Wachter as an ex-felon in possession of a firearm. The jury acquitted of the attempted murder and returned a verdict of manslaughter as a lesser included offense of murder. While the parties and the court seemed to agree that “defense of others” applied, the trial judge rejected a defense instruction captioned “non-homicide justifiable excuse” and inexplicably, when it gave the homicide justifiable excuse instruction did not include the text which referred to defense of others. The Court of Appeal rejected respondent’s arguments that other instructions cured the omissions, found the omission prejudicial, and reversed and remanded. (I) HCC

Jones, Sharon — People v. Benefiel, G040429 — Reversal for Insufficient Evidence
In this appeal after a re-trial, the Court of Appeal agreed with appellant’s argument that there was insufficient evidence he did not act in self-defense when he fired a shot from his bedroom window after being awakened from a deep sleep and finding the window being shattered by S.W.A.T. team bean bag shells. The officers had been called by appellant’s father who feared his son was suicidal. The Court of Appeal found that the use of the bean bag shots were deadly force and there was no evidence to suggest that a reasonable person would not have believed in the need to respond with deadly force. (I) APJ

Nalls, Christopher – In re: F.M. G040761 – Maximum term of confinement & Failure to deem offense felony or misdemeanor.
Juvenile case remanded for sentencing where trial court improperly calculated maximum term of confinement by failing to stay an offense pursuant to Penal Code section 654 and also for court to make an express declaration pursuant to Welfare & Institutions code section 702 as to whether a true finding is a felony or a misdemeanor. (I) PED

Dodd, John – People v. Bell, G041051 – Sufficiency of Evidence, Kidnapping
Simple kidnapping conviction reversed based on trial court’s failure to give complete instructions and error in the wording of CALCRIM No. 1215 because it fails to accurately capture of the holding of People v. Martinez (1999) 20 Cal.4th 225. (I) PED

Gray, Janet — People v. Guy, G041845— Insufficient evidence and Penal Code section 654 stay
Court of Appeal and Attorney General agreed that there was insufficient evidence to show that the felony prior was a serious felony (assault committed with the use of a deadly weapon); the matter is remanded for a new trial on the prior. Court also held that the trial court erred under Penal Code section 654 by imposing consecutive sentences on inflicting corporal injury, assaulting the same victim, and committing first degree burglary; the matter is remanded for resentencing. (I) AMJ

NOVEMBER 2009

Larson, Eric — People v. Gastelum, D053935 — Marsden motion, restitution
The Court of Appeal conditionally reversed appellant’s murder conviction where the trial court failed to hold a Marsden hearing where, after the verdict but prior to sentencing, appellant asked for a new attorney to investigate a new trial motion based on IAC by existing defense counsel. The Court of Appeal directed the trial court to hold a Marsden hearing, and if appropriate a new trial motion; if appellant is unsuccessful in asserting his right to a new trial, the judgment is to be reinstated. The court also amended the abstract of judgment to note that appellant’s liability for victim restitution is joint and several with the other defendants. The court also ordered stricken from the court’s minutes the erroneous statement a gang allegation was found true (in fact it was found not true). (I) NFA

Duxbury, Brett — People v. Ochoa, E045756 — Sufficiency of gang evidence, sentencing
The Court of Appeal found insufficient evidence to support a gang benefit finding where the evidence was simply that appellant, who was a gang member, committed a carjacking outside a restaurant. The Court of Appeal also vacated four prior prison term enhancements which were charged but never proved or admitted. Finally, custody credits were corrected in appellant’s favor. (I) NFA

Dodd, Peter — People v. Meraz, E046815 — Penal Code section 1170.15
Court of Appeal reversed sentence for Penal Code section 136.1 conviction because trial court erroneously believed Penal Code section 1170.15 left it no discretion but to impose a full consecutive term, when it in fact permitted a concurrent term. (I) JLP

Kraft, Rudy — People v. Ronje, G041373 — SVP Habeas Petition Granted
Pretrial challenge to SVP proceeding in which the two mental health evaluations relied on to initiate the proceeding used an assessment protocol that was determined to be an invalid underground regulation. Because this was a pretrial challenge, the petitioner was not required to show actual prejudice. The appropriate remedy was to order new mental health evaluations using a valid assessment protocol and conduct another probable cause hearing under section 6602, subdivision (a). (I) LMF

Clark, Marcia – People v. Adams, G041461 – Due Diligence/Witness Unavailability
Trial court erred in admitting the preliminary hearing testimony of the victim, the prosecution’s key witness, where the prosecution failed to exercise due diligence in searching for the victim and did not demonstrate victim was unavailable within the meaning of Evidence Code section 240. There was no due diligence in this case because (1) the search was not timely begun: the prosecutor’s investigator was assigned to locate the client no earlier than eight days before trial (the case had been pending for 17 months and was subject to multiple continuances); leads were not competently explored: during these eight days the investigator cultivated some leads but ran out of time to pursue them; and there was only speculation that a further search for the victim would have been futile. (I) CBM

OCTOBER 2009

Schooley, Wilson — People v. Hampton, D052252 — Violation of Plea Bargain
Trial court violated appellant’s plea bargain agreement with prosecution when it did not impose the lesser sentence that the trial court had referenced in a pre-sentencing hearing. Court of Appeal found the trial court’s “promise” of a lesser sentence was a material term of the plea bargain and likely induced appellant to enter the plea. Remand for opportunity for appellant to withdraw the plea. (I) MCR

Scott, Patricia — People v. Bush, D053565 — Multiplicious Offenses
Where defendant was convicted of both robbery and receiving stolen property for receiving a cell phone obtained in the robbery, Attorney General conceded and Court of Appeal reversed receiving stolen property conviction because one cannot be convicted of receiving stolen property which is the subject of the robbery, when also convicted of the robbery. (I) JLP

Jones, Rebecca — People v. Booker, D054608 — Marsden
Murder conviction reversed and remanded so that trial court can conduct a Marsden hearing, and if the Marsden hearing is granted, appoint new counsel to fully investigate and present a new trial motion. (I) MCR

Gold, Neale — In re A.A., D054875 — Indian Child Welfare Act (ICWA)
Case reversed and remanded on limited basis so agency could properly inquire as to father’s Indian heritage. (I) ACS

Cohen, Howard — Battle v. Superior Court (People), D055895 — Return of Property
After pleading guilty to an identification theft count, defendant filed a nonstatutory motion for the return of property. The property had been seized by police in a search of an apartment defendant shared. At a contested hearing, the defense conceded no cause for return of property other than a laptop computer. The People argued that the computer was subject to an asset forfeiture statute. While the circumstances indicated that the computer could have been used in criminal activity, the defense argued there was insufficient evidence that the computer was linked to the crime to which defendant had pleaded guilty, but the superior court denied return. Defendant sought a petition for writ of mandate, arguing inter alia, that if forfeiture was sought, defendant had a state constitutional right to a jury trial which had not been afforded; regardless, the People had not carried their burden to prove the computer had been used in the crime to which defendant had pleaded; and that the trial court had impermissibly shifted the burden of proof. After the filing of the petition, the People stipulated to the return of the computer. (S) HCC

Matsumoto, Ellen — People v. Hill, G041840 — Sentencing; Restitution
In an unpremeditated murder conviction, the trial court sentenced appellant to 15 years to life. Case was remanded for resentencing to a determinate sentence of five, seven or nine years (plus firearm enhancement). Also, in regard to restitution, the appellate disposition was with directions to provide expressly that defendant is jointly and severally liable to pay any ordered restitution. (I) MCR

Williams, Rex; Cohen, Howard — People v. Mejia, E045939 — Insufficiency of Evidence
Appellant was convicted of evading a peace officer, a U.S. Forest Service law enforcement officer in a national forest, resulting in an accident. (Veh. Code, § 2800.3.) In his testimony, the officer responded affirmatively to the leading questions of whether he was a “sworn peace officer” and made arrests and issued citations. Since the officer was a federal employee, Penal Code section 830.8, subdivision (b) requires that the federal officer comply with certain California training requirements as well as have the consent of the local police chief or sheriff. The trial court failed to instruct on these prerequisites. The briefing argued in the alternative insufficiency of evidence and instructional error. The tentative opinion would have reversed on the instructional error. After oral argument, the court concluded that the evidence was insufficient, since the affirmative answers merely described the officer’s federal functioning and there was no evidence of either of the two prerequisites for federal officers. (I) HCC

Benedict, Amanda — People v. Bye, E046652 — Speedy Trial
Court of Appeal affirmed dismissal of case on speedy trial grounds, where trial court had found court congestion was not good cause to continue trial beyond statutory period. (I) JLP

Erickson, Kristin. — People v. Ramirez, E047100 — Prison Priors
The Court of Appeal agreed with appellant’s argument that trial court’s mistake about number of valid prison priors required remand. Although the trial court dismissed what turned out to be the invalid prison prior, it did so to avoid a dual use problem; thus, had court known the prior it was dismissing could not have been imposed anyway, it might have dismissed a different prior to avoid the dual use problem. (I) APJ

Webb, H. Reed — People v. Dannelley, E047322 — Sentencing
The Court of Appeal agreed with appellant’s argument that trial court clearly intended to suspend imposition of sentence and not bind future court with any specified sentence; therefore, court’s statement of a specific sentence was in error and ordered deleted from the sentencing minute order. (A) APJ

Staley, John — People v. Escobar, E047458 — Weapons Enhancement
Where appellant was convicted of assault with a deadly weapon, weapons enhancement ordered stricken, since it is an element of the offense. (I) HCC

Schuck, John — People v. Garrett, E047731 — People’s Appeal
The trial court reduced felonies prior to accepting defendant’s guilty plea, and the defendant was immediately placed on probation. The People appealed on the grounds of lack of authority and abuse of discretion. The court concluded that the People had no statutory authorization to appeal from the grant of probation, but were limited to extraordinary writ. Though the trial court had acted in excess of jurisdiction in reducing the offense prematurely, that circumstance did not enlarge the People’s right to appeal. (I) HCC

Clark, Marcia — People v. Love, G040636 — Pitchess
Remand of case with directions for the trial court to conduct an in camera review of documents responsive to appellant’s Pitchess motion to determine whether any information exists that ought to have been disclosed. (I) PED

Eskenazi, Lauren — People v. Rodriguez, G040788 — Insufficiency of Evidence
Conviction for sale of a controlled substance reversed where the evidence was insufficient to sustain conviction as a matter of law that appellant took part in the drug transaction or aided and abetted the sale of drugs. (I) MCR

Edwards, John — People v. Haji, D052754 — Insufficiency of Evidence
In case with two convictions for Penal Code section 288, subdivision (a) — one for penetration of anus and one for penetration of vagina — Court of Appeal reversed the conviction for penetration of vagina where only the evidence supporting conviction was wetness in vaginal area. (I) JLP

Larson, Eric — People v. Jones, D053874 — Lesser Included Offense
Conviction for attempted forcible rape reversed and ordered stricken as it is a lesser included offense of assault with intent to commit rape. (I) BCT

Auwarter, Neil — People v. Banks, D054631 — Custody Credits
Trial court granted appellant’s motion for an additional 34 days presentence custody credit after sentencing court erroneously omitted credit for custody in a Salvation Army facility as a previous condition of probation. (S) NFA

Gold, Neale — In re T. V. , D055144 — Grandparent Visitation
Appellate court reversed juvenile court’s ruling that mother had to arrange monthly visits between her children and the maternal grandmother. Grandmother had previously cared for the children and been found to be their de facto parent. Appellate court upheld the provisions of Family Code section 3104 in making its decision and found that the juvenile court had failed to apply this statute in granting grandmother visits. (I) ACS

McPartland, Michael — People v. Bats, E045515 — Penal Code Section 654; Credits
Where appellant was convicted of burglary, extortion, and robbery arising from the same transaction, concurrent terms on the latter are ordered stayed pursuant to Penal Code section 654. The Court of Appeal also ordered a remand for calculation of credits where the trial court merely deferred to the Department of Corrections and Rehabilitation to calculate credits. (I) HCC

Irza, Helen — In re T.A., E046108 — Maximum Term
Where minor was placed on probation and released to the custody of his mother, the juvenile court was not authorized to set a maximum term, and the maximum term set was stricken. (A) HCC

Harris, Donna — In re Isabella M., E046899 — Probation Conditions
Court of Appeal ordered knowledge element be added to probation condition limiting minor’s association. (I) JLP

Dain, Anthony — People v. Minjarez, E047172 — Sentencing; Penal Code Section 654
Sentence reversed and new hearing ordered. Trial court erred in imposing both a determinate sentence of six years and an indeterminate sentence of 15 years to life for one count of lewd and lascivious conduct in violation of Penal Code section 654. (I) AMJ

Hennessey, Patrick — People v. Ramirez, E047420 — Ineffective Assistance of Counsel
Court of Appeal affirmed trial court’s grant of habeas petition on ground of ineffective assistance of counsel for failing to inform the client of his right to testify. (I) JLP

Macomber, Thomas — People v. Sheridan, E047492 — Probation Conditions
Probation condition which read “[r]eside at a residence approved by the probation officer and not move without prior consent of the Probation Officer,” deemed to violate the Lent test and ordered modified to read as follows “Defendant shall keep the probation officer informed of his place of residence and give written notice to the probation officer tweny-four hours prior to a change of address.” Second condition providing that defendant “[n]ot associate with any unrelated persons on probation or parole,” deemed unconstitutionally overbroad and modified to that defendant must “know” that these persons are on probation or parole. (A) PED

Ting, Allison — People v. Stoltie, E048009 — Speedy Trial
The trial court dismissed a robbery charge against appellant pursuant to Penal Code section 1382 when no courtroom was available on the last day for trial. The People appealed and also refiled the charge in the trial court. On appeal, the People argued the trial court should have used a civil judge to try the case at another location, such as an elementary school. The People also argued the trial court had violated Penal Code section 1050 by not giving this last-day criminal case priority over already-commenced civil trials. The Court of Appeal affirmed the dismissal, finding no abuse of discretion. The court held section 1050's rule of criminal case priority was not absolute. The court also found the People had to elect between the remedy of appeal and retrial. The court held that it was permissible for the People to both file a notice of appeal and refile the charge. However, the People should have timely elected a remedy, such as by abandoning the appeal at an early stage. Instead, the People had “perfected” the appeal by pursuing it until it was fully briefed and only then attempting to abandon the appeal. Accordingly, the court held, the People had elected the exclusive remedy of appeal. The court accordingly denied the People’s motion to abandon the appeal and ordered the refiled charge dismissed. (I) NFA

Stafford, Victoria — People v. Hryze, G040697 — Penal Code section 654
Court erred in not staying sentences for burglary and vehicle theft, where they were part of a single course of conduct, where part of a single course of conduct and indivisible plan with robbery and assault counts. Abstract and credit calculation error were also corrected. (I) JLP

Eskenazi, Lauren — In re Zachary B., G041752 — Lesser Related Offense
After finding burglary allegation “not true,” the trial court deprived minor of due process by finding true, instead, the lesser related offense of trespass, which had not been alleged in the petition. The Attorney General conceded and the Court of Appeal agreed that reversal of the true finding is required. (I) APJ

Babcock, Russell — People v. Archer, D052978 — Compassionate Use Act
Court of Appeal reversed appellant’s conviction for possession of marijuana (Health & Saf. Code, § 11357, subd. (a)). The trial court erred in instructing the jury that a qualified patient or primary caregiver could possess no more than eight ounces of dried marijuana or six mature or 12 immature marijuana plants per qualified patient. (I) LKH

Forrey-Baker, Lelah; Gold, Neale — In re A. D., et al., D054597 — ICWA
Father was an enrolled member of a Sioux tribe, but there was no evidence this tribe received the proper ICWA notice advising the tribe of the case and its right to intervene, nor was there evidence the tribe received notice of the Welfare and Institutions Code section 366.26 hearing. Although the social worker had communicated with a tribal representative, this was not sufficient to establish proper notice under the ICWA. (I) CAG

Handy, M. Elizabeth; Williams, Nicole — In re Calvin P., D054830 — Reunification Services
In this minor’s appeal, in a published opinion the Court of Appeal reversed the trial court’s decision to convert mother’s family reunification services to family maintenance after placement with the father. The appellate court decided that under the circumstances because mother was ordered to receive reunification services and HHSA never provided them while mother was incarcerated, she should be given them. (I) CAG

Kahn, Judith — People v. Keel, D055691 — Abstract of Judgment
Court of Appeal struck a 10-year firearm use enhancement under Penal Code section 12022.53, subdivision (d), which was not found true as to appellant but was erroneously entered on the abstract of judgment. (I) NFA

Smith, Barbara — People v. Jaimes, D945215 — Mentally Disordered Offender (MDO)
The trial on this MDO petition was not commenced until 344 days after the client’s release date. The Court of Appeal found there was no good cause for much of the delay, which was in some instances attributed to the lack of available courtrooms and also attributed to the prosecutor’s failure to begin to secure witnesses or obtain medical records until nine months after announcing it was ready for trial. The court also concluded that weighing the justification for the delay against the prejudice to the defendant resulted in a due process violation which necessitated reversal. (I) LMF

Buckley, Stephen — People v. Davis, E045692 — Amendment of Information
Kidnapping conviction reversed because the amendment made to information one day before trial under Penal Code section 1009 was in error, where there was no evidence of kidnapping presented at the preliminary hearing. (I) MCR

Flenniken, William — People v. Johnson, E046210 — Custody Credits
Remand for determination of proper amount of custody credits. (I) PED

O’Connor, Sheila — People v. Carroll, E047093 — Prison Priors
Trial court ordered to strike four, one year Penal Code section 667.5, subdivision (b) prior prison enhancements as opposed to erroneously staying them. (I) PED

Jones, Sharon — People v. Bolton, E047301 — Involuntary Plea
Defendant given opportunity to withdraw from his plea, where both court and his attorney advised him he would be eligible to earn half time credits, but he was not entitled to such credit due to admission of a strike allegation. (I) PED

Williams, Rex — People v. Chism, E047447 — Insufficiency of Evidence
In this case where appellant was convicted of failure to register at different addresses and also failure to register as a transient, Court of Appeal agreed with appellant’s argument that there was insufficient evidence to support the transient conviction because the evidence showed appellant had multiple addresses, rather than no address. (I) APJ

Sheehy, Kevin – In re M. M., E047528 – Probation Condition
The court modified the graffiti and gang association conditions of minor’s probation to include knowledge component. (I) BCT

Martin, Arthur — People v. Rump, G039421 — Sentencing
Clerk of the court directed to correct the abstract of judgment to reflect the imposition of a determinate term of 20 years for the section 12022.53 (c) enhancement associated with the attempted murder count, where the trial court had imposed an indeterminate term of 20 years. (I) LAR

Ferguson, Susan — In re Ramon M., G040765 — Juvenile Custody; Disposition Errors
Certified for Publication. Although the issue was moot because minor had been released, the court addressed the issue because it was one of public interest and likely to recur in the future. The court held it was error to commit 18-year old minor to county jail at disposition and juvenile court should have been more specific, directing the probation department to place him only in an appropriate juvenile facility. The case was remanded for the juvenile court to declare on the record whether minor’s offenses were felonies or misdemeanors and to modify one gang probation term to include “knowledge” component. (A) BCT

Schwartzberg, Richard — People v. Sharp, G041866 — Penal Code Section 654
Appellant argued, Attorney General conceded, and court agreed that concurrent term for receiving stolen property must be stayed pursuant to Penal Code section 654, when term was imposed for the burglary in which the property was taken. (I) HCC

SEPTEMBER 2009

Mazur, Janice — People v. Lopez, D052885 — Crawford/Melendez-Diaz
In a published decision, the Court of Appeal found the trial court improperly allowed a Sheriff's crime lab supervisor to testify as to the result of a blood alcohol test performed by a different crime lab employee. The court found this testimony was inadmissible testimonial hearsay under Melendez-Diaz v. Massachusetts (2009) __ U.S. __, 2009 WL 1789468 and Crawford v. Washington (2004) 541 U.S. 36. Further, the lab results were not subject to the business records hearsay objection, which does not apply where the purpose of the business activity is the production of evidence to be used at trial. The court noted Melendez-Diaz disapproved the California Supreme Court's contrary decision in People v. Geier (2007) 41 Cal.4th 555, 606-607. (I) NFA

Robinson, Warren — People v. Martin, D053603 — Insufficient Evidence
Defendant was convicted by jury of felony vandalism based on evidence he used a brick to break two windows of a police car. The Court of Appeal found the evidence insufficient to establish damage exceeding $400, absent any testimony or documentation regarding the actual cost of repair. The court reduced the conviction to misdemeanor vandalism. (I) NFA

Benedict, Amanda — People v. Leth, D054395 — Probation Period
Appellant was convicted of DUI causing great bodily injury and was placed on five years probation and ordered to pay $54,000 in victim restitution, with a stipulation the amount could subsequently be increased. Near the end of the probation term, victim restitution was increased to $90,000. To permit supervision of payment of the remaining balance of restitution, the trial court extended the term of probation an additional five years, for a total of ten years. On appeal, appellant argued the maximum authorized term of probation is limited to the maximum term of incarceration for the offense. (Pen. Code, §1203.1, subd. (a).) The Attorney General conceded, and the Court of Appeal reduced the term of probation to six years. (I) NFA

Nebrida-Buchanan, Martin — People v. Harvey, D054498 — Instruction Error
Premeditation and deliberation true finding reversed where jury instruction omitted key words from CALCRIM No. 601. People given option to retry. (I) PED

Tavano, Joseph; Barry, Leslie; Bookout, Susan — In re Cody P., D054733 — Stipulated Reversal
Parents argued for reversal due to insufficient evidence of adoptability, the beneficial relationship exception applied, ICWA notice error and lack of an unfitness finding. The children’s attorney joined in the parents’ request for reversal due to a change in circumstances which undermined the adoptability finding. The parties stipulated to reversal of the judgment and remand to the juvenile court to conduct a new Welfare and Institutions Code section 366.26 hearing with directions to order a permanent plan of guardianship. The Court of Appeal accepted the stipulation and order reversal and remand as stipulated. (I) LMF

Fattahi, Sahyeh — In re Damian C., D054918 — Indian Child Welfare Act ( ICWA)
Mother completed the appropriate ICWA form claiming Pasqua Yaqui Indian heritage. The agency queried maternal grandfather about heritage, asking five specific questions about tribal contact and activities, to which he answered “no.” He also said the family’s research regarding his father’s possible Indian heritage hit dead ends because they did not have enough information. The juvenile court agreed with county counsel that there was no need to notice the tribes because there was insufficient proof the child was an Indian child. The Court of Appeal reversed finding that the recent addition of the provisions of ICWA to Welfare and Institutions Code, and amendments to the California Rules of Court, did not alter the duty to give notice under the circumstances here. The court rejected the agency’s argument the legislative history indicated an intent to raise the threshold of when notice is required. (I) LMF

Dikes, Patti — In re Michael S., D054993 — ICWA
Counsel raised issue of inquiry and notice to comply with ICWA. Respondent conceded. A joint stipulation to reverse was filed. (I) CAG

Bostwick, James — People v. Lang, E044633 — Instructional Error
Defendant was tried for stalking based on events occurring in 2001 and 2002. Subsequently, the stalking statute (Pen. Code, § 646.9, subd. (a)) was amended to omit the element that the victim reasonably and actually suffer substantial emotional distress. At appellant's trial, the jury was instructed with the amended definition of stalking, i.e., omitting the substantial emotional distress element. The Court of Appeal reversed the stalking conviction on the ground jurors had not been instructed on a element of the offense, as it existed when the acts were committed. The court rejected the Attorney General's harmless error argument and found the error prejudicial under the "reasonable possibility" standard applicable to federal constitutional due process error. (I) NFA

Lathrop, Stephen — People v. Domingo, E044665 — Penal Code Section 654
Appellant was convicted of, among other things, two counts of attempted murder and two counts of child endangerment, committed against two separate children. Court of Appeal held the trial court erred in failing to stay appellant’s sentence on the two counts of child endangerment. Because the crimes involved a single act, execution of the sentence imposed on both child endangerment counts must be stayed. In addition, the abstract of judgment must be amended, because it erroneously stated appellant was convicted on counts 1, 2, and 3 of “1st Attempted Mu.” where the jury found appellant’s acts were not “willful, deliberate and premeditated.” (I) LKH

Brajevich, Sally — People v. Castleberry, E044913 — Prior Bad Acts
Appellant shot and killed his 12 year-old son with a replica of a Civil War-era muzzle-loading black powder shotgun. Defense contended it was an accident. The prosecution was allowed to bring in five prior acts involving violence and threats of violence toward’s the son’s mother, as evidence of appellant’s intent in connection with the shooting. Court of Appeal agreed it was prejudicial error to allow in this evidence. (I) LAR

Williams, Rex — People v. Cleveland, E044986 — lack of Verdict; Penal Code Section 654
Appellant was alleged to have suffered both a prior serious felony as well as a Strike. He was tried by jury and convicted of the substantive offenses, but then the jury was discharged. No findings were made on the Strike allegation, nor did appellant admit as true either the Strike or prior serious felony enhancement allegation. The sentences were doubled under the Strikes law. Court of Appeal held that when the People fail to have the applicability of enhancements determined at trial, whether by the court or by jury, they are deemed to have waived it. The discharge of the jury without a verdict, without a request to bifurcate the proceedings, and without a waiver of the right to have the same jury decide the issues relating to the prior conviction allegations, barred further prosecution. Also, respondent conceded that the separate term for the active participation in a street gang violated Penal Code section 654. (I) LAR

Schaefer, Laura — People v. Evans, E045244 — Marsden
Case remanded where trial court prejudicially failed to hold a Marsden hearing upon defendant’s request for new counsel. (I) MRR

Boyce, Robert — People v. Gaytan, E045502 — Statute of Limitations
Court of Appeal found one conviction barred by statute of limitations and the evidence insufficient to prove a second conviction was within the statute of limitations, where one year statutes of limitations applied due to convictions for lesser included misdemeanor offenses. (I) JLP

Duxbury, Brett — People v. Bowling, E045557 — Consecutive Sentencing
Trial court erred by imposing a full-term great bodily injury enhancement on a consecutive subordinate determinate term sentence. Court of Appeal reduced the sentence from three years to one year. (I) LKH

Eskenazi, Lauren — In re M.M., E045714 — Insufficient Evidence
Court of Appeal reversed true finding of Penal Code section 148, where the minor refused to stop when directed to do so by a school security officer, because the court found the security officer was not a “peace officer.” (I) JLP

Fadem, Luke — People v. Gonzalez, E046024 — Lesser Included Offense
Respondent conceded and Court of Appeal agreed that count 2, receiving stolen property, must be stricken, because it is a lesser included offense of count 1, operating a chop shop. (I) AMJ

Schooley, Wilson — People v. McDaniel, E046054 — Penal Code Section 654
Where defendant was convicted of both false imprisonment and attempted robbery for the same act, imposition of sentence for the attempted robbery ordered stayed pursuant to Penal Code section 654. (I) HCC

Bauguess, Susan — People v. Orrellana, E046136 — Ability to Pay
Trial court erred in ordering appellant to reimburse the costs of the preparation of his probation report and his booking fees, because the orders were not supported by evidence of his ability to pay. This was not waived even though there was no objection below, because there was no hearing and no evidence of appellant’s ability to pay these costs. (I) LAR

Auwarter, Neil — People v. Taylor, E046337 — Sentencing; Erroneous Abstract
Appellant pled guilty to assault by means likely to cause great bodily injury (Pen. Code, § 245, subd. (a)(1)). The abstract of judgment erroneously stated the conviction was for assault with a deadly weapon. The Court of Appeal modified the judgment to reflect the correct offense, noting that the error might adversely affect appellant’s custody credits eligibility in prison (see Pen. Code § 2933.1) and might result in the offense being incorrectly utilized as a Strike prior in the event of a future felony conviction. (S) NFA

Wass, Valerie — People v. Angulo, E046346 — Probation Conditions; Fines
After finding various probation conditions unconstitutionally vague and overbroad, Court of Appeal ordered knowledge elements be added to multiple probation conditions, a limitation on a ban of alcohol be specified to say the ban is until the defendant reaches 21, and deletion of the requirement the defendant report expenditures to probation. The court also ordered the probation revocation restitution fine corrected to $200 from $220. (I) JLP

Peabody, Jennifer — People v. Rodriguez, E046382 — Restitution Fines
Where trial court did not orally impose restitution fine or probation revocation restitution fine, Court of Appeal ordered both stricken from minute order and abstract of judgment. (A) JLP

Shudde, Athena — People v. White, E046466 — Prior Prison Tem/Serious Felony Enhancement
Trial court had imposed four five-year enhancements under Penal Code section 667, subdivision (a) for prior convictions and three 10-year enhancements under Penal Code section 667.6, subdivision (b) for three of the same prior convictions. Court of Appeal ordered two of the section 667, subdivision (a) enhancements stayed, because the same prior conviction had erroneously been used to justify both enhancements. It also ordered one additional Penal Code section 667, subdivision (a) enhancement stricken, because it was not brought and tried separately. (I) JLP

Bauguess, Susan — People v. Hollis, E046640 — Ability to Pay
Case remanded for reconsideration of $150 appointed counsel fee assessment where appellant was sentenced to state prison, raising the presumption of an inability to pay, and there was no express or implied finding of an ability to pay either made by the trial court or supported in the record. Defense counsel’s failure to object did not preclude raising this issue on appeal. (I) PED

Norman, Jan — People v. Alvarez, E047030 — Lesser Included Offenses
Defendant was found with methamphetamine in his car and charged with both transporting and possessing for sale. In both counts the jury opted to convict on the lesser included offense of simple possession. The Court of Appeal held appellant could not be convicted of two identical counts of possession based on the same quantity of drugs and accordingly reversed one of the counts. (A) NFA

Lintvedt, Cathryn — People v. Gonzales E047184 — Count Stricken
Respondent conceded and the court agreed that appellant could only be convicted of one count of violating Penal Code section 12025, carrying a concealed weapon, because he only possessed one weapon. Appellant had entered a guilty plea to two counts, one charged under subdivision (b)(3) and the other under subdivision (b)(6). The court noted subdivision (b), paragraphs (1) through (6) were sentencing factors only and struck one of the convictions. (A) BCT

Barry, Leslie; Kanefield, Teri — In re A.N., E047542 — Termination of Jurisdiction
Court of Appeal agreed with mother and minor that juvenile court erred in terminating its jurisdiction after it established a guardianship with non-relative guardians. Among other things, the termination order failed to define visitation between mother and her children. (I) ACS

Kopas, Marleigh — People v. Tran, G036560 — Penal Code Section 654
Appellant was convicted of one count of murder (Pen. Code,§ 187, subd. (a)), one count of willful, deliberate, and premeditated attempted murder (Pen. Code, §§ 664, subd. (a), & 187, subd. (a)), and one count of street terrorism (Pen. Code, § 186.22, subd. (a)). In addition, the jury found true allegations counts 1 and 2 were committed for the benefit of a criminal street gang (Pen. Code, § 186.22, subd. (b)) and appellant personally used a firearm in the commission of these offenses (Pen. Code, § 12022.5, subd. (a)). The trial court sentenced appellant to life with the possibility of parole plus 54 years to life. The Court of Appeal reversed and stayed the three year sentence for street terrorism pursuant to Penal Code section 654. (I) LKH

Kopas, Marleigh — People v. Hart, G039836 — Sentencing
Reversal of appellant’s sentence due to many, many sentencing errors, such as terms stayed that should have been stricken, terms in the wrong length, and consecutive enhancements when their underlying offenses were concurrent. (I) JLP

Tran, Thien Huong — People v. Vasquez; G040280 — Unanimity
Court of Appeal reversed a conviction where the trial court failed to give sua sponte a unanimity instruction where evidence showed three separate and distinct attacks that could have supported the attempted murder charge and where the prosecutor failed to elect which act it was relying upon to support the charge. (A) LAR

Somers, Robert — People v. Williams, G040700 — Lesser Included Offense
Jury’s guilty verdict for Vehicle Code section 2800.1 conviction stricken. because it is lesser included offense of Vehicle Code section 2800.2 conviction. (I) CBM

Tretreault, Nancy — People v. Brady, G040707 — Insufficient Evidence
Court of Appeal reversed appellant’s conviction for violating a protective order, because the protective order expired before the date of the alleged violation. (I) LKH

Frizzell, Doris — People v. Marquez, G040742 — Improper Enhancement
Court of Appeal struck great bodily injury enhancement (Pen. Code, § 12022.7, subd. (a)) attached to mayhem count, because great bodily injury is an element of the crime of mayhem. (I) NFA

Boyer, Ronald — People v. Amaya, G041048 — Instructional Error
The Court of Appeal agreed with appellant’s arguments that the trial court prejudicially erred when it told the jury “it is for the jury to decide” when the jury asked whether a finding that an aider and abettor was aware of the perpetrator’s intent to commit a crime, one of which could be robbery, was sufficient to satisfy the ‘knowledge of intent’ requirement of aiding and abetting a robbery. The Court of Appeal found that because the only answer to the jury’s question was “no,” the trial court’s answer was legally incorrect and violated the court’s duty to assist the jury in understanding the legal principles involved in the case. The error was prejudicial because, given evidence that appellant thought the perpetrator intended to fight rather than rob, it is reasonably probable appellant would have obtained a more favorable result had the trial court not incorrectly answered the jury’s question. (I) APJ

Buckley, Christian — In re Danny N., G041050 — Probation Conditions
Respondent did not oppose and the Court of Appeal agreed to modify appellant’s probation conditions to include the word “knowingly” before each of four prohibited actions. (I) APJ

Johnson, R. Charles — In re Edward Q., G041281 — Erroneous Charge
A minor was remanded into custody and detained at juvenile hall, where, pursuant to an intake search, he was found to possess marijuana. He was charged with a violation of Penal Code section 4573 re introduction of drugs into prison, jail, and other adult institutions. In contrast, Welfare and Institutions Code section 871.5 is the statute which proscribes introduction of drugs into juvenile facilities. While respondent sought a modification of the order to reflect a violation of section 871.5, in a published opinion, the Court of Appeal declined and ordered a remand for a new dispositional hearing based solely on two other previous charges. The court chose not to address whether jeopardy had attached to a prosecution for section 871.5 or any other issues related to section 871.5. (I) HCC

Haggerty, Edward J. — In re Jose T., G041519 — Untimely Amendment
The Court of Appeal agreed with appellant’s argument that the government’s motion to amend the juvenile petition after trial was untimely and the true finding on that count must be reversed. In order to “conform to proof,” the juvenile court had erroneously allowed the government to dismiss the originally alleged assault with a deadly weapon count and add, instead, a count of brandishing a deadly weapon. Because the latter was not necessarily included within the former, the late amendment deprived the minor of due process. (I) APJ

Barry, Leslie — In re Christian L., G041799 — Guardianship
Court agreed with mother’s counsel who argued that it was error to send dependency guardianship and visitation orders to family court for any modification of those orders. Guardianship had been established after juvenile court found that benefit exception to adoption applied. (I) ACS

Koryn, Daniel — People v. Thomas, D050286 — Ability to Pay
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

Stafford, Victoria — People v. Ramirez, G041853 — Penal Code Section 1538.5; Prior Prison Enhancement
Conviction for receiving stolen property was reversed on Fourth Amendment grounds. Police officer observed appellant in the street straddling his bicycle and talking to another person. The officer tried to stop appellant for a Vehicle Code violation, but appellant fled. The officer followed appellant to his apartment, where the officer forcibly entered and found stolen property. The Court of Appeal found there was no basis to detain appellant, because the Vehicle Code sections purportedly relied on by the officer did not prohibit standing in the street in a residential area. Further, while appellant’s flight was suspicious, under the totality of circumstances there was still insufficient evidence to detain. The officer, therefore, lacked the authority to pursue appellant into his residence. The court also struck as duplicative two prior prison term enhancements in two other cases. (I) NFA

Schwartzberg, Richard — Alcala v. Superior Court (People), G042393 — Faretta
Petition for writ of prohibition/mandate granted. In this third trial for capital murder, where offenses from Los Angles and Orange Counties have been combined, defendant had originally sought his Faretta right for the prosecution stemming from one county, but having counsel for the other. When the court indicated defendant would have to elect one or the other in the combined trial, defendant preferred to go pro per, but the trial court denied the request. On writ, with the People not opposing same, given defendant’s reaffirmation of the Faretta waivers and his representation he would not seek a continuance, the Court of Appeal granted the writ, granting defendant’s Faretta motion. (I) HCC

Auwarter, Neil — People v. Herrera, SCD208543 — Custody Credits
Defendant was convicted of rape of an intoxicated person (Pen. Code, § 261, subd.(a)(3)) and lewd act with a 14 or 15-year-old (Pen. Code, § 288, subd. (c)(1)). The sentencing court calculated defendant’s presentence constructive custody credits pursuant to the “violent felony” provision of Penal Code section 2933.1, which limits constructive custody credits--before and after sentencing--to 15%. Defendant filed a motion in the trial court to correct credits on the ground neither offense is a “violent felony” within the meaning of section 2933.1. The court granted the motion, recalculated presentence credits under Penal Code section 4019, and forwarded to the CDCR an amended abstract of judgment deleting the erroneous reference to section 2933.1. (S) NFA

AUGUST 2009

Shevelson, Courtney — People v. Smith, D053123 — Penal Code Section 2933.2 Credits
Attorney General conceded and Court of Appeal agreed that the trial court erred in not awarding appellant custody credits pursuant to Penal Code section 2933.2, where his crime occurred four years before Penal Code section 2933.2 became operative. (I) JLP

Hinkle, Stephen — People v. Dinh, D053167 — Lesser Included Offense; Penal Code Section 654; Restitution
Appellant was charged primarily with five completed or attempted extortions. Additionally, he was charged with grand theft (based on the total amount extorted) and five burglaries (entry into the business establishment with an intent to extort). The Court of Appeal agreed that under the facts of the case, the grand theft count was a lesser included offense as to the extortions. The court also agreed that the five burglary sentences should have been stayed instead of imposed concurrently. Appellant also had two open misdemeanor cases. Without taking a plea as to either, the trial court ordered restitution for the alleged misdemeanors as part of the felony sentence and dismissed the misdemeanors. The Court of Appeal struck the restitution order and reinstated the misdemeanor prosecutions. (I) HCC

Harris, Donna L. — People v. Baldwin, D053361 — Penal Code Section 654
The Court of Appeal agreed with appellant’s argument that two counts of forgery were based on same course of conduct as burglary conviction; thus, concurrent sentences on those counts were required to be stayed pursuant to Penal Code section 654. (I) APJ

Auwarter, Neil — People v. Ramirez, D053505 — Probation Conditions
Court of Appeal struck Fourth Amendment waiver search condition of probation where appellant was convicted of an unarmed assault and had no significant history of drug or alcohol use and no history of weapons use or possession. The court found the search condition was not reasonably related to the crime or future criminality. The Court of Appeal did not follow (or discuss) the primary authority relied on by respondent, People v. Balestra (1999) 76 Cal.App.4th 57, 67, which held that a search condition of probation would be valid regardless of the particular offense involved. (S) NFA

Teran, Diana — People v. Duran, D054625 — Penal Code Section 654
Where defendant was convicted of criminal threats and stalking, consecutive sentencing for misdemeanor annoying telephone counts and violating a protective order was erroneous. The terms were ordered stayed pursuant to Penal Code section 654. (I) HCC

Vogelmann, Monica — Conservatorship of Gail B., D055194 — LPS Conservatorship; Stipulated Reversal
The LPS conservatorship was established on the basis of trial counsel’s statement that he conferred with Gail, advised her of her rights, the nature and purpose and consequences of the conservatorship, and she agreed to having the conservatorship established. Gail was not at this hearing and her presence was waived. She later filed a declaration stating the attorney had not advised her of all of her rights, and the declaration was included in the appellate record. County counsel offered to stipulate to a reversal and remand so that a new hearing could be held, and Gail agreed. (I) LMF

Matulis, Jean — People v. Peyton, E044069 — Accusatory Pleading
In published opinion, Court of Appeal reversed conviction, where charge was erroneously added to accusatory pleading after appellant had waived his right to a preliminary hearing on the original pleading. (I) JLP

Schaeffer, Laura — People v. Layton, E044156 — Penal Code Section 654
Consecutive sentence stayed pursuant to Penal Code section 654, where Court of Appeal concluded intent in threat to kill victim was inextricably intertwined with effort to run over victim. (I) JLP

Norris, Ronda — People v. Duran, E044975 — Ex Post Facto
Six year enhancement imposed for discharging a firearm from a motor vehicle reduced to five years because it amounted to unlawful ex-post facto application. (I) PED

Tetreault, Nancy — People v. Guerrero, E045237 — Penal Code Section 654
A sentence for discharging a firearm in a grossly negligent manner ordered stayed pursuant to Penal Code section 654, where sentence also imposed for assault with a semi-automatic firearm. (I) HCC

Dodd, Peter — People v. Torres, E045730 — Juror Misconduct
Court of Appeal found trial court abused its discretion in ruling inadmissible juror declarations, which were part of a new trial motion based on juror misconduct, and the court also addressed why the trial court’s other statements did not justify its denial of the motion. (I) JLP

Marshall, Marilee — People v. Abreo, E045776 — Prior Prison Term
The People conceded and the Court of Appeal agreed that the trial court erred in imposing both a one year enhancement under Penal Code section 667.5, subdivision (b), and five-year enhancement under Penal Code section 667, subdivision (a), based on the same prior conviction. The one-year enhancement is ordered stricken. (I) AMJ

Lathrop, Stephen — People v. Simmons, E045818 — Sentencing
The matter is remanded for correction because the composition of the seven year sentence was not correct, although the total amount ordered would remain the same. (I) AMJ

Owen, Thomas — People v. Roderick Markham, E045986 — Maximum Fine; Ability to Pay
The Court of Appeal agreed with appellant’s arguments that: 1) fines of $50,000 exceeded the amount authorized by Penal Code sections 1202.4 and 1202.45; and 2) a hearing re: ability to pay costs of probation report was required unless expressly waived. The Court of Appeal found the trial court intended to impose the maximum available fines under Penal Code sections 1202.4 and 1202.45 and so reduced the each fine to $10,000. The case was remanded for a determination of whether appellant should be required to pay costs of probation officer’s report. (I) APJ

Schuck, John — People v. Black, E046128 — Conduct Credits; Restitution
Appellant waived her conduct credits to participate in a drug treatment program. After probation was revoked, appellant was sentenced to state prison, but the trial court did not award any conduct credits. The case was remanded for the limited purpose of calculating conduct credits under Penal Code Section 4019 for time spent in local custody or in a residential drug treatment program from date appellant was placed in drug treatment program as any conduct credits earned after that date were not included in the previous waiver of conduct credit. The superior court clerk was also directed to correct its minutes and the abstract of judgment to reflect a $200 restitution fine, plus a $200 probation revocation fine pursuant to section 1202.44, and a $200 parole revocation fine pursuant to section 1202.45. (I) BCT

Baughman, Lisa — People v. H., E046573 — Probation Conditions
Minor’s terms of probation were modified to include a knowledge requirement. As modified, the conditions read, “Not associate with anyone whom he knows possesses weapons of any kind, including, . . . ,” and “Not associate with individuals whom he knows are gang members, or with persons whom he knows are engaged in graffiti or related activities.” (I) LKH

Polsky, David — People v. Hughes, E046595 — Penal Code Section 17
Remand required because record demonstrated the trial court exercised its discretion in an arbitrary manner, when it refused to hear the motion on the merits, because it erroneously believed a prior Penal Code section17, subdivision (b) motion had been denied by another trial court. (I) MCR

Torres, Steven — People v. Graves, E046660 — Custody Credits
The Court of Appeal agreed with appellant’s argument that his credits were incorrectly limited to 15% under Penal Code section 2933.1, when his offense, attempted residential burglary, does not qualify as a violent crime, even if the jury found a non-accomplice was present. (I) APJ

Bostwick, James — People v. Fragoso, E046702 — Denial of Counsel
Attorney General conceded and Court of Appeal reversed appellant’s sentence, where minute order indicates appellant had no counsel for sentencing, because the court removed the public defender, who had been appointed the same day, after finding appellant did not financially qualify for the public defender. (I) BCT

Harris, Donna — People v. Ochoa, E047029 — Credits
The trial court refused to correct credits error on the ground it had no jurisdiction due to the appeal. Court of Appeal ordered trial court to order at least one day he was entitled to and to conduct a hearing to determine if, in fact, he was booked into custody earlier than the record reflects. (I) AMJ

Ting, Allison — People v. Zayaz, E047278 — Parole Revocation Fine
Trial court erred in ordering a $1,500 restitution fine (Pen. Code, § 1202.4, subd. (b)) and a $1,550 suspended parole revocation fine pursuant to section 1202.45, subdivision (b). Court of appeal reduced the suspended parole revocation fine to $1,500. (I) LKH

Staley, John — People v. Kunath, E048357 — Sentencing
The minute order and abstract did not conform to the intended sentence. By efforts of counsel, the parties below stipulated to the lower intended sentence. (I) HCC

Harvie, Linda — In re Jake G., G040179 — Insufficiency of Evidence
Evidence of personal infliction of great bodily injury (Pen. Code, § 12022.7) found insufficient where minor appellant only wrestled with the victim while appellant’s accomplice stabbed the victim. (I) NFA

Little, Robert — In re Edel A., G040985 — Custody Credits
Attorney General conceded error, and Court of Appeal ordered one additional day of credit for time served to include day of sentencing. (A) JLP

McPartland, Michael — People v. Scharf, G041000 — Attorney and Probation Fees; Ability to Pay
Appellate court reversed orders to pay attorney fees and probation fees, where trial court failed to determine appellant’s ability to pay. Court also ordered that any such fees not be terms of probation. (I) JLP

Auwarter, Neil — People v. Johnson, G041395 — Sentencing
Trial court orally imposed prison term of 16 months, with two concurrent 16-month terms, pursuant to a plea agreement, but the abstract of judgment erroneously stated three consecutive 16-month terms and an aggregate term of four years. Attorney General conceded and stipulated to immediate remittitur. Remanded to correct the abstract. (Staff) NFA

JULY 2009

Babcock, Russell — People v. Green, D052138 — New Trial
The prosecutions’s theory was that appellant was part of a drug deal, whereas the defendant contended he was not involved with the seller, an erstwhile defendant who had pleaded guilty. At trial, the seller was no longer available, and his hearsay statement suggesting appellant was not involved was deemed inadmissible as not being sufficiently against his (seller’s) penal interest. After conviction, however, the seller was available (in custody) and appellant moved for a new trial, which the trial court denied without a hearing at which the seller could testify. The Court of Appeal concluded that the trial court abused its discretion by denying the motion for a new trial without allowing the defense to present the primary evidence in support of that motion and remanded for the trial court to rehear the new trial motion, to permit seller’s testimony, if possible, (and any other admissible evidence) in support of its motion at that hearing. The trial court should then decide, having “all available information before it,” whether the new trial motion has merit. If it concludes that the motion has merit, it should order a new trial. If it decides that the motion does not have merit, it should reinstate the judgment. (I) HCC

Lubliner, Steven — People v. Martinez, D053169 — Restitution
Appellant was convicted of two counts of robbery, but acquitted of a separate charge (assault with a deadly weapon) involving a different victim. At sentencing, the trial court ordered restitution be paid to the victim of the assault. The Court of Appeal struck the restitution order, because appellant was acquitted. Although a defendant who is granted probation can be ordered to pay victim restitution for a crime of which he or she was acquitted, this rule is not applicable when the defendant is sentenced to prison and restitution is ordered under Penal Code section 1202.4. (I) LKH

Klein, Jill — In re Moises V., D053728 — Lesser Included Offense
Respondent conceded and the Court of Appeal agreed that the juvenile court’s true finding on the simple battery charge must be stricken, because that offense is necessarily included in the offense of battery against a school employee. (A) AMJ

Caldwell, William — In re Shyann B., D054126 — Indian Child Welfare Act (ICWA)
Judgment terminating parental rights reversed due to failure to inquire further about claim of Indian heritage. Mother initially denied any Indian heritage, then at the Welfare and Institutions Code section 366.26 hearing claimed her aunt Tammy had Cherokee heritage and lived on a reservation, and mother provided the aunt’s telephone number. The court set a special hearing for the following week to determine whether notice under ICWA was required, yet conducted the section 366.26 hearing and terminated parental rights. At the subsequent ICWA hearing, the juvenile court recognized its error in proceeding with the section 366.26 hearing, set aside the judgment terminating parental rights, and ordered the mother to complete the ICWA form (which claimed Cherokee/Cheyenne heritage). At the next hearing, the agency’s report noted the aunt could not be reached at the number provided, and the maternal grandmother said mother did not have an aunt named Tammy or any Indian heritage. The juvenile court found ICWA did not apply and reinstated the judgment terminating parental rights. The Court of Appeal held the juvenile court erred in not resolving the ICWA issue before terminating parental rights and noted the juvenile court did not have jurisdiction to set aside the judgment terminating parental rights. The court also denied the agency’s motion to take additional post-judgment evidence, denied its motion to dismiss based on mootness, and directed the juvenile court to comply with the notice provision of ICWA. (I) LMF

Jauregui, Anna — In re Gustavo A., D054486 — Dispositional Errors
Reversed in part and remanded. The Court of Appeal agreed with all three arguments raised that the trial court erred in failing to make an express finding as to whether the commercial burglary offense was a felony or misdemeanor, in imposing a probation condition that prevents the minor from driving during the entire period of probation, and in ordering the maximum time when the minor was not removed from the custody of his parents. (S) AMJ

Levy, Richard — People v. Anderson, D054740 — Instructional Error
Counsel argued the trial court erred by not instructing sua sponte on the defense of accident. The Court of Appeal agreed and went on to find the error prejudicial and reversed the robbery conviction, the felony murder conviction, and the special circumstance finding based upon that robbery. (I) LAR

Lathrop, Stephen — People v. Bowers, E045305 — Prior Serious Felony Enhancement
Respondent conceded and the Court of Appeal agreed that the prior serious felony enhancement must be stricken, because appellant did not suffer a triggering conviction. (I) AMJ

Bostwick, James — People v. Doss, E045438 — Insufficiency of Evidence
Affirmed in part; reversed in part. The evidence was insufficient to support a conviction for concealment of a material event that affects a person’s right to any insurance benefit or payment, because no evidence was shown at trial that apellant’s failure to disclose her employment affected her right. (I) AMJ

Hillberg, Marylou — People v. Bowden, E045570 — Ineffective Assistance of Counsel (IAC)
Respondent conceded and the Court of Appeal agreed that a remand was necessary to address allegations appellant had raised prior to sentencing about the performance of his trial attorney. On remand, the trial court is to “inquire sufficiently into defendant’s grounds for asserting ineffective assistance of counsel” and reinstate the judgment if defendant fails to make “a colorable claim of inadequacy of counsel.” The opinion does not clearly state what should happen if the defendant does make a colorable claim, but suggests that perhaps separate counsel would be appointed to investigate a motion for new trial. (I) APJ

Nelson, Laura — People v. Robert E. Taylor, E045595 — Custody Credits
Respondent conceded and the Court of Appeal agreed that appellant was entitled to 1,167 days of credit, rather than the 637 credits awarded at sentencing. (I) AMJ

Sheehy, Kevin — People v. Pettie, E045607 — Instructional Error
Conviction reversed because trial court failed to instruct the jury sua sponte on a material element, namely, the mental state of criminal negligence of the “indirect” misdemeanor child endangerment charges. Respondent conceded the error, and the Court of Appeal found the error was not harmless beyond a reasonable doubt in view of the entire record. (I) BCT

Jones, Cynthia — People v. Miles, E045751 — Penal Code Section 654
Respondent conceded and the Court of Appeal agreed that possession of PCP and being under the influence of PCP were part of an indivisible course of conduct with the underlying count of transportation of PCP, and the concurrent terms should have been stayed pursuant to Penal Code section 654. (A) LAR

McPartland, Michael — People v. Dominguez, E045944 — Sentencing; Romero
Remanded for resentencing where trial court mistakenly believed it had no jurisdiction to consider a Romero motion because defendant did not file and serve the motion at least 10 days prior to the sentencing hearing, and where court failed to state its reasons for imposing consecutive terms on two counts. (I) MCR

McPartland, Michael — People v. Hinojos, E046221 — Penal Code Section 654; Custody Credits
The Court of Appeal agreed with appellant’s arguments that sentences on two counts of forgery must be stayed pursuant to Penal Code section 654, because the offenses were part of the same course of conduct underlying appellant’s burglary conviction. The Court of Appeal also agreed that appellant’s pre-sentence custody credits were incorrectly limited pursuant to Penal Code section 2933.1, when appellant had not been convicted of a qualifying violent offense. (I) APJ

Forrey-Baker, Lelah; St. Julian, Andrea — In re Kaylynn C., E046401— De Facto Parent
Stipulation to reversal was filed after oral argument. Child was removed from the de facto parent without due process. Minor’s counsel joined with de facto parent’s brief, as minor appeared to be unadoptable by anyone but this parent. (I) CAG

Williams, Rex — People v. Broome, E046415 — Prior Prison Enhancement
Court of Appeal reversed true finding and sentence for prison prior, where the state failed to prove that appellant had received a conviction and served a completed prison term for the prior offense at issue by the time of the current offense. (I) NFA

Hennessey, Patrick — In re D.S., E046890 — Penal Code Section 654
consecutive term for sexual battery by restraint is ordered stayed pursuant to Penal Code section 654, because there is no distinction in the evidence between the acts comprising the offense and the acts comprising count of assault with intent to commit rape.. (I) DKR

Bronson, Phillip – People v. Stanley, E047108 – Sentencing
Case reversed with directions for new sentencing hearing so the trial court can orally pronounce dismissal of the prior prison term allegations and state reasons for dismissal. (I) BCT

Boire, Richard — People v. Austin, G039056 — Multiplicious Offenses; Penal Code Section 654
The Court of Appeal reversed 22 counts of grand theft auto, agreeing with appellant’s argument under the Bailey doctrine (People v. Bailey (1961) 55 Cal.2d 514) that the taking of multiple vehicles from two different auto dealers constituted two thefts, one from each dealer, rather than a separate theft for each vehicle. The Court of Appeal also agreed that the sentence on several of the remaining counts were required to be stayed pursuant to Penal Code section 654. (I) APJ

Bauguess, Susan — People v. Rodriguez, G039986 — Consecutive Sentences
Respondent conceded and the Court of Appeal agreed that trial court’s failure to provide reasons for consecutive sentences required remand. (I) JLP

Hermansen, Kurt — People v. McDonald, G040058 — IAC
Court of Appeal remanded the matter to the superior court to issue an order to show cause and hold an evidentiary hearing and make a determination as to ineffective assistance of counsel. Counsel argued trial counsel was ineffective for failing to object to certain photographs, failing to investigate a defense, and failing to call a witness. (I) LAR

Levy, Richard; Moreno, Kathy — People v. Reynolds and Nava, G040063 — Batson/Wheeler
In this murder for hire appeal, the Court of Appeal found error in a peremptory challenge to be reversible per se. The prosecutor challenged a Hispanic woman, and the defense objected on Batson/Wheeler grounds. The trial court asked for an explanation to which the prosecutor replied that the juror was only 19 and lacked supervisory responsibility. The trial court rejected those rationales, but immediately interjected its own, that the juror had a problem with aiding and abetting and her response that she would be follow the law was “junk.” The Court of Appeal concluded this alternate basis and not the prosecutor’s was the trial court’s rationale for overruling the objection. The trial court did not, as required, accept the prosecutor’s stated race-neutral reason for challenging the juror, but rather, the trial court came up with one of its own, which the prosecutor then adopted in her subsequent comments. This reiteration just created a situation where the court was essentially evaluating its own motivation as rephrased by the prosecutor. The appellate court had no alternative but to conclude the court’s intrusion as the prosecutor was attempting to provide her race-neutral reasons was error. (I) HCC

De la Sota, Richard — People v. Rosas, G040153 — Sentencing Errors
Case remanded to trial court for re-sentencing. Trial Court directed to address seven different sentencing errors as set forth over two pages of the opinion. (I) PED

Eskenazi, Lauren — People v. Issel, G040274 — Evidentiary Error
The Court of Appeal agreed with appellant’s arguments that evidence of a prior offense, offered to show common scheme or plan, failed to show a common scheme or plan and was, thus, inadmissible under that theory. Because the trial court did not instruct the jury as to other theories of admissibility, the Court of Appeal rejected the respondent’s argument that any error was harmless because the evidence would have been admissible to show intent or knowledge. The Court of Appeal found the error to be prejudicial, because the evidence against appellant “was not particularly strong” and noted: “This case underscores the importance of carefully tailoring the exceptions of section 1101, subidivision (b), to the particular issues presented at trial.” (I) APJ

Hillberg, Marylou — People v. Morguita, G040415 — Evidentiary Error
The trial court erred by admitting the booking photographs of defendant and his accomplices with labels depicting them as gang members, and street terrorism conviction is therefore reversed. (I) AMJ

Matulis, Jean — People v. Tillotson, G040445 — Sentencing Errors
In an appeal from a re-sentencing after remand, the Court of Appeal again remands the case to the trial court to correct sentencing errors, namely: strike rather than stay a Health and Safety Code section 11370.2, subdivision (c), enhancement; calculate pre-sentence custody credit; and clarify whether jail sentence is to run concurrently or consecutively. (I) APJ

Williams, Rex — People v. Cuevas, G040478 — Penal Code Section 654
Concurrent sentence imposed under count two, active participation in a criminal street gang, was stayed pursuant to Penal Code section 654, because count two was indivisible from count one, possession of a controlled substance for the benefit of the criminal street gang. (I) BCT

Salisbury, William — People v. Williams, G040634 — Penal Code Section 654
Respondent conceded and the Court of Appeal agreed robbery and possession of drugs for sale were part of the same course of conduct where the purpose of the robbery was to gain the drugs for the purpose of selling them. (I) APJ

Schuck, John — People v. Mallett, E044535 — Jury Coercion
Court of Appeal reversed appellant’s robbery conviction based on the trial court’s impermissible “mini-Allen” instruction to a deadlocked jury. When the jury announced they were at an impasse, the court told jurors a retrial would be inevitable and expensive and that all this would be “because you didn’t work on it long enough.” (I) NFA

JUNE 2009

Mazur, Janice — People v. Fisher, D052186 — Dual Convictions
Appellant was convicted of taking and thereafter, for so time, driving several vehicles, and he was convicted of both auto taking/driving and receiving a stolen vehicle. For other vehicles, he was likewise convicted of both offenses, although for these vehicles the evidence established only taking and not driving them for any time thereafter. As to these latter vehicles, the appellate court agreed with appellant that conviction for both auto taking and receiving a stolen vehicle was duplicitous. The court reversed both offenses as to these vehicles and remanded for retrial as to one offense or the other, but not both, but if the prosecution elects not to retry the offenses, the auto taking offenses may be reinstated. (I) HCC

Nelson, Laurel — People v. Day, D053081 — Fines and Fees
Court ordered the total fine and penalty assessments reduced from $680 to $580 due to computation error. (I) BCT

Rich, Renee — People v. Beason, D053113 — Dual Convictions
The conviction for receiving stolen property ordered stricken because defendant cannot be convicted of both robbery and receiving the same stolen property. (I) AMJ

Finch, Dabney — In re Juan Y., D053259 — Dual Convictions; Probation Conditions; In re Manzy W.
Attorney General conceded and Court of Appeal agreed with all three of counsel’s arguments: 1) the trial court erred in making true findings for five counts of reckless driving when there was only a single act but multiple victims; 2) two probation conditions were erroneously imposed where not orally pronounced; and 3) case needed to be remanded for court to determine whether the true findings are felonies or misdemeanors. (A) JLP

Stralla, Ava — People v. Weaver, D053368 — Custody Credits
Court awarded 85 days additional presentence custody credits under the "dual custody" rule for custody served in probation revocation triggered by the current offense. (I) NFA

Kling, Craig — People v. Ewart, D053453 — Probation Conditions
Probation conditions subjecting appellant’s places of residence and employment to probation officer’s approval overturned as unrelated to crime or future criminality and as overbroad infringements of constitutional rights. Further condition that appellant take psychotropic medications prescribed by doctor overturned as unrelated to crime or future criminality, rendering appellant’s constitutional challenge to the condition moot. (A) DKR

Gold, Neale — In re Tatiana V., D053584 — De Facto Parent
Mother challenged the continued status of her mother as the children’s de facto parent. Children had been returned to mother from grandmother’s care, with mother and grandmother continuing to have a very contentious relationship. Appellate court reversed juvenile court’s order refusing to terminate the status and remanded with directions to consider whether de facto parent’s actions caused substantial harm to the children, inconsistent with a parental role. (I) ACS

Forrey-Baker, Lelah — In re Erin G., D053909 — Statutory Notice
Biological father’s parental rights were terminated in action brought by stepparent under Family Code §7662. Appellate court reversed on grounds that father had not received proper statutory notice of proceedings. Court did not reach constitutional procedural due process issue that appellant raised. (I) ACS

Peterson, Christy; Milcetic, Maryann; St. Julian, Andrea — In re Samuel G., D054066 — Court-Appointed Special Advocate (CASA)
In a published opinion, the appellate court affirmed juvenile court’s order requiring child welfare agency to pay for CASA’s travel expenses incurred when she visited a dependent child in her role as that child’s educational representative. Appellate court clarified that if the juvenile court had made the order as payment for her travel as a CASA, it would have been improper. Agency unsuccessfully argued that order violated separation of powers doctrine of the California Constitution and was an improper gift of public funds. Samuel, a teenager, had been in the system for several years, suffered from multiple behavior and learning disabilities, and had been moved to a group home in Northern California where the CASA visited him. (I) ACS

Forrey-Baker, Lelah — In re Andrew D., et al., D054555 — Dependency Jurisdiction/Disposition
Children were detained from mother, but placed with father while mother went into a hospital to seek treatment for mental illness . Seven months later, after mother was free of hallucinations and suicidal and homicidal ideation, at the jurisdiction and disposition hearing, she and the father submitted on the petitions as part of a negotiated settlement. The court entered true findings, declared dependency, placed the children with the parents, found there was no protective issue, and terminated jurisdiction. The Court of Appeal accepted a stipulated reversal from the parties, and issued an opinion reversing the judgment. (I) CAG

Ihara, Patricia — People v. Romero, E044214 — Instructional Error
Appellant was convicted of, among other things, being a felon in possession of a firearm (Pen. Code, § 12021, subd. (a)(1) [count 1]) and falsely imprisoning a person for the purpose of protection from arrest or using the person as a shield (Pen. Code, § 210.5 [count 2]). As to both counts, the jury further found appellant carried a firearm during the commission of a street gang crime and carried a firearm with a detachable magazine or belt-feeding device during the commission of a criminal street gang crime. (Pen. Code, § 12021.5, subds. (a) & (b).) The Court of Appeal reversed the true findings on both firearm enhancements, because the trial court failed to define the element “during the commission of a street gang crime.” In addition, appellant’s full term, consecutive sentence on count 1 and the corresponding gang enhancement was reduced to one-third the middle term because the trial court designated count 2 the principal term and imposed a full term. One prison prior sentence was stricken where appellant already received a five year term for the same conviction under section 667, subdivision (a). Appellant also was awarded more pre-sentence custody credits to correct the trial court’s miscalculation. (I) LKH

Truax, Chris; Kraft, Rudy, Acaldo, Linda — People v. Taylor (& 4 other cases), E044268 — Sexually Violent Predator (SVP) Recommitment
In each case a petition was filed to recommit the defendant under the SVP Act. In each case, the defendant had been committed under the Act before passage of Proposition 83 (aka Jessica’s Law) which now provides for indeterminate, rather than two-year commitments. The trial court granted the prosecution’s motion to retroactively convert the initial SVP commitment to an indeterminate term under the provisions of the new law. The Court of Appeal reversed concluding the law still required a current determination that the defendant met the criteria of a SVP. Thus, it was necessary to conduct a trial on each of the recommitment petitions and the cases were remanded for this purpose. (I) LMF

Duxbury, Brett — People v. Aldama, E044825 — Sufficiency of Evidence
Gun-use enhancement under Penal Code section 12022.53, subdivision (d) stricken for lack of sufficient evidence where gunshot fired by appellant did not injure the stabbing victim of the count attached to the enhancement but another person. Thus, the shooting did not occur in the commission of the offense, and there was no causative nexus between the gun’s discharge and the injury to the stabbing victim. The corresponding 25-years to life enhancement was ordered vacated. (I) DKR

Mazur, Janice — People v. Smith, E045415 — Abstract of Judgment
In this remand for resentencing case, Attorney General and Court of Appeal agreed that abstract was in error by not referring to the original sentence date, as verbally ordered by the trial court, as the date that the sentence was made nunc pro tunc and that the credits be calculated as of that date. (I) AMJ

Tetreault, Nancy — People v. Derowitsch, E045600 — Custody Credits
Case remanded to the trial court for a redetermination and recalculation of the conduct credits to which appellant was entitled. (I) BCT

Schuck, John — People v. Moore, E046029 — Penal Code Section 1538.5
The trail court had denied defendant’s motion to suppress evidence after the case had been remanded by the Court of Appeal to conduct a new suppression hearing so that the prosecutory could justify the search in conformity with People v. Sanders. The remand following the Supreme Court’s ruling that the Court of Appeal had originally erred in simply reversing the judgement out rights, and ordered a remand for the purpose of conducting a new suppression hearing to include any alternate grounds contained in the original suppression motion and any opposition thereto and consistent with the views expressed in its (Supreme Court) opinion. At the original suppression hearing the prosecution only introduced a certified copy of defendant’s parole terms which included a search term. No evidence was presented about whether either of the officers was award that defendant was a paroled felon with a search term. Appellant contended that at the new suppression hearing the trial court erroneously limited the scope of the hearing to the initial detention of appellant; appellant objected and stated he wanted to litigate the circumstances surrounding the seizure of the contraband from his mouth and wanted a full hearing.
The Attorney General conceded and the Court of Appeal agreed that the trial erred in limiting the scope of the hearing. (I) LAR

Sheehy, Kevin — People v. Greenblatt, E046095 — Romero; Credits
In this People’s appeal, the Court of Appeal affirmed the trial court’s granting of a Romero motion and striking a strike prior. Also, the Court of Appeal ordered the trial court to properly calculate presentence conduct credits not originally ordered because of misapprehension Three Strikes law precluded their award. (I) JLP

Schuck, John — People v. Mickens, E046413 — Restitution Fine
Attorney General conceded and the Court of Appeal ordered the probation revocation restitution fine reduced to $200 to equal the same amount as the restitution fine. (I) BCT

Babcock, Russell — People v. Smith, E046635 — Attorney’s Fees; Abstract of Judgment
The order directing defendant to pay attorney’s fees in the amount of $150 was stricken, where defendant had no reason to expect he might be ordered to pay such fees prior to sentencing hearing, no inquiry was made into his ability to pay, and he had no meaningful opportunity to object to their imposition. Abstract of judgment also amended to order striking rather than staying of two prior prison term enhancements. (I) PED

Schwartzberg, Richard — In re Gonzalez, G039755 — Penal Code section 1381 demand
Court of Appeal appointed attorney to file petition supplementing an in pro per petition by petitioner which concerned denial of his request under Penal Code section 1381 for a revocation of probation matter. Court of Appeal agreed that the revocation of probation is encompassed within that section and granted the petition in a published opinion. Attorney General filed petition for review, which was granted pending same issue in the California Supreme Court. Case was retransferred after decision in People v. Wagner (2009) 45 Cal.4th 1039. Court of Appeal again granted the petition in an unpublished opinion. (I) AMJ

Eskenazi, Lauren — People v. Culver, G039852 — Instructional Error
Defendant was convicted of transporting more than 28.5 grams of marijuana. Police stopped appellant for a traffic violation and, pursuant to a consent search, found 53.5 grams of marijuana. The defense was that under the Compassionate Use Act (CUA) appellant had a doctor’s recommendation to use one ounce (28 grams) per week. The CUA provides a defense to possession or transporting marijuana for “current medical needs.” On appeal, defendant argued 1) the trial court erred in omitting an instruction on the lesser included offense of transporting less than 28.5 grams, since jurors could have concluded that the amount transported in excess of defendant’s current medical needs was less than 28.5 grams; and 2) the jury instructions were erroneously incomplete in failing to convey defendant could be found guilty only of possessing that quantity that exceeded his current medical needs. The Court of Appeal reversed for failure to instruct on the lesser included offense and declined to reach the second claim of error. (A) NFA

Burz, Dacia — People v. Beltran, G040149 — Penal Code Section 654
The Court of Appeal agreed with appellant’s argument that appellant harbored a single objective during four domestic violence offenses and three of the concurrent 25-year-to-life terms must be stayed. (I) APJ

Crawford, James — People v. Gonzalez, G040155 — Prison Prior
Trial court erroneously stayed prison prior rather than striking it. Cause remanded for court to exercise its discretion pursuant to Penal Code section 1385 with regards to the prison prior. (I) LAR

Clark, Marcia — People v. Cadogan, G040200 — Consecutive Sentence
People conceded with appellant’s argument that trial court erred in imposing the consecutive sentence for appellant’s attempted sodomy conviction. Trial court imposed four years, when the consecutive term should have been one-third of the middle term of three years, or one year. Judgment modified to reflect proper sentence. (I) LAR

Keiser, Susan — People v. Zavala, G040207 — Penal Code Section 654; Consecutive Sentence
Trial court violated Penal Code section 654 by imposing separate terms for grossly negligent discharge of a firearm and assault with a firearm based on a single course of conduct. The trial court also erred in imposing a consecutive firearm use enhancement when the substantive count to which it attached was imposed concurrently, The Court of Appeal remanded, directing the trial court to correct these errors. (I) NFA

Bostwick, James — People v. Costales, G040517 — Gang Enhancements
Court of Appeal reversed true finding on gang enhancement attached to resisting arrest conviction for insufficient evidence where gang expert testified he was not sure if defendant resisted arrest for the benefit of the gang. Additionally, Court of Appeal reversed five year sentence for gang enhancement tied to illegal possession of firearm because it did not involve a serious felony under People v. Briceno. (I) JLP

Serobian, Liana; Levine, Marsha — In re Bryce W., G041575 — Adoption
The parties stipulated to reversal of the judgment terminating parental rights and selecting a plan of adoption for this 12-year old boy. The stipulation was prompted by post-judgment developments which demonstrated the adoptive placement was no longer appropriate and the minor simply did not want to be adopted. (I) LMF

Sheehy, Kevin — People v. Benitez, G041708 — Kellett
In this People’s appeal, the Court of Appeal affirmed the trial court’s finding of a single course of conduct and dismissal of charges in Riverside County, under Kellett, for sexual offenses from a continuous sexual relationship as offenses at issue in a San Bernardino case that had already been resolved by plea bargain. (I) JLP

MAY 2009

Nelson, Laurel — People v. Carrea, D051337 — Custody Credits
Remanded to determine correct amount of pre-sentence custody credits to be awarded. (I) PED

Brisbois, Patricia — People v. Williams, D051969 — Insufficiency of Evidence
One of two conspiracy convictions reversed where record shows the two conspiracies alleged (grand theft and making a false insurance claim) involved the same motives (money), occurred in the same place (the Lemon Grove clinic) among the same group of people, and by the same unlawful means (billing Medicare patients for unnecessary tests never performed). Remanded for re-sentencing. (I) PED

Fabian, Carl — People v. Irvin, D052052 — Sentencing Error
Court of Appeal struck from the abstract of judgment four erroneously entered on-bail enhancements that were neither charged nor proved. (I) NFA

Dwyer, John — People v. Mena, D052091 — Probation Condition
The Court of Appeal modified a probation condition to read “Not to associate with persons he knows to be gang members or he knows to be associated with the East San Diego gang.” (I) HCC

Kessler, Daniel — People v. Shephard, D052214 — Dual Conviction
Appellant was convicted of sexual penetration by means of force or fear by any foreign or unknown object (Pen. Code, § 289, subds. (a) & (k)(1)) and forcible rape in concert (Pen. Code, §§ 261, subd. (a)(2), & 264.1). Court of Appeal reversed the conviction for sexual penetration by means of force or fear. Appellant cannot be convicted of both offenses based on one act of penetration. (I) MCR.

Smith, Barbara — People v. Bates, D052831 — Custody Credits
After a jury returned a true finding of great bodily injury, at sentencing, the trial judge concluded he had erred in not granting a motion to dismiss the enhancement and, therefore, struck it. Because the underlying offense was no longer “serious” or “violent” without the enhancement, the court also struck a five-year enhancement. However, the court neglected to recalculate credits based on Penal Code section 4019, rather than the 15% credits pursuant to section 2933.1. Appellant argued and the Court of Appeal agreed that remand for recalculation for credits was necessary. (I) HCC

Klein, Jill — People v. Torres, D052887 — Insufficiency of Evidence
Court of Appeal reversed driving under the influence conviction after finding that although there was sufficient evidence of methamphetamine intoxication, there was not sufficient evidence such intoxication appreciably impaired defendant’s ability to drive. (A) JLP

Barry, Leslie (mother), Lankford, Valerie (minor) — In re Joshua K., et al., D054129 — Removal Orders
At the disposition hearing, the juvenile court removed one minor pursuant to Welfare and Institutions Code section 361, subdivision (c)(1), but then stated it would “allow for his return to mother at this time,” and the minute order reflects minor was placed with mother. Court of Appeal struck the removal order and remanded the case for the juvenile court to clarify its order. “An order removing a child from a parent and then immediately placing the child with that parent is in excess of its jurisdiction. (In re Andres G. (1998) 64 Cal.App.4th 476, 483.)” (I) LKH

Kahn, Judith — People v. Ryan, D054601 — Substitution of Counsel
At the sentencing hearing, appellant moved to continue the hearing to retain counsel. Appellant wanted his retained attorney to file a new trial motion. The trial court denied this motion, finding appellant’s plans to retain counsel too indefinite, but stated it would consider an oral new trial motion. Appellant explained his reasons for wanting a new trial, but the court found insufficient grounds and denied the motion. The Court of Appeal reversed the sentence and remanded the matter to the superior court for private counsel to be retained. Appellant’s plan to retain counsel was not speculative, there was nothing in the record demonstrating appellant did not act in good faith, and a delay in sentencing would not have disrupted the proceedings. Further, appellant stated a colorable basis for a new trial motion based on ineffective assistance of counsel. (I) LKH

King, Nancy; Conrad, Leslie — People v. Pierson & Will, E039621 — Parole Revocation Fines
Appellants argued, the People conceded, and the court agreed that since neither defendant received a sentence that included a period of parole, the $10,000 parole revocation fines were incorrectly imposed. (I) HCC

Kraft, Rudy — People v. Dean, E041513 — Sexually Violent Predator (SVP) Recommitment
After a grant of rehearing, the court continued to affirm this SVP judgment for recommittment but agreed it was an abuse of the trial court’s discretion to allow one of the People’s experts to testify about details found in state hospital and institutional records. The records were inadmissible under People v. Otto (2001) 26 Cal.4th 200, and there was no attempt to admit the records as business records under Evidence Code sections 1271 and 1372. The error was deemed harmless in light of the limiting instructions given the jury and the defendant’s testimony regarding some of the matters on direct and redirect. In denying the defense claim that permitting the People to present two experts while the defense is limited to one expert violated due process, the court held the SVP Act did not require the People to prove its case with two experts. The court observed that the testimony of the people’s two experts appeared to be cumulative, but no objection was raised to the testimony on this ground. (I) LMF

Kraft, Rudy — People v. Shady, E043986 — Mentally Disorder Offender (MDO) Commitment
Appellant’s trial on the petition to commit him as an MDO did not occur until four months after his original commitment expired and he would have otherwise been released. The Court of Appeal concluded this violated the 30-day trial deadline set forth in Penal Code section 2972, subdivision (a). Because the prosecution did not demonstrate good cause for the many continuances it obtained, the delay was prejudicial to appellant and violated his right to due process. The court observed that its conclusion did not necessarily mean appellant would be released. If he required further involuntary mental health treatment, he could be evaluated under the Lanterman-Petris-Short Act (Welf. & Inst.Code, § 500 et seq.). (I) LMF

Rudasill, Denise — People v. Johnson, E044039 — Faretta
Reversed and remanded. Trial court erred in denying appellant’s timely and unequivocal Faretta motion. (I) AMJ

Hinkle, Stephen — People v. Villicana, E044306 — Sentencing Error
Sentence reversed and case remanded for resentencing, where defendant was sentenced pursuant to the provisions of Penal Code section 667.6, subdivision (c), and the counts he was sentenced on did not fall within those provisions. (I) PED

Torres, Tonja, — People v. Richards, E044335 — Abstract of Judgment
Abstract is ordered corrected to reflect the oral pronouncement of judgment which is a determinate term of two years followed by an indeterminate term of 40 years to life. (I) AMJ

Tetreault, Nancy — People v. Furr, E045181 — Sentencing Errors
Trial court erred in ordering a consecutive one-third midterm, rather than a Penal Code section 654 stay, on count 3, brandishing a knife, because count 1, making criminal threats (threatening to harm with the knife) and count 3 entertained the same criminal objective. The court erred in imposing the on-bail enhancement on all three counts of conviction rather than one count, because it can only be imposed once on a determinate term and in doubling the gang enhancement on count 2, false imprisonment, because terms for enhancements are not doubled under the Three Strikes law. (I) AMJ

Dodd, Peter — People v. Belle, E045627 — Dual Conviction
Judgment of conviction of receiving a stolen vehicle is reversed. Appellant cannot be convicted of both taking and receiving the same vehicle, and there was no evidence to show a substantial break between the two acts. (I) AMJ

Larson, Eric — People v. Douglas, E046090 — Dual Conviction; Penal Code Section 654
Reversed in part. Conviction for smuggling methamphetamine into prison (count 2) is reversed and the superior court is directed to dismiss that count because it was part and parcel with the smuggling of the marijuana conviction (count 1). The concurrent sentence for conspiracy to smuggle these drugs was in error, and the superior court is directed to order a stay under Penal Code section 654. (I) HCC

Rich, Renee — People v. Allen, E046180 — Attorney Fees
Order requiring appellant to pay $150 in attorney fees for the services of his public defender is reversed, where appellant did not receive adequate notice and no hearing was conducted regarding appellant’s ability to pay. Court of Appeal rejected Attorney General’s argument the issue was waived or forfeited, finding no objection necessary to preserve the issue for appeal. “Due process requires at a minimum notice and a hearing before an indigent defendant can be ordered to pay the cost of his government-provided legal representation.” (I) LKH

Larson, Eric R. — People v. Delcid, E046216 — Resentencing
The Court of Appeal agreed with appellant’s argument that the trial court misunderstood the scope of its sentencing discretion when it sentenced appellant under the current version of Penal Code section 667.61 (consecutive sentences would be mandatory under the circumstances of this case) rather than the version that applied at the time of appellant’s offense (court retains discretion re: concurrent/consecutive). The Court of Appeal concluded that nothing in the record indicated remand would be an idle act.
(I) APJ

Auwarter, Neil — People v. Taylor, E046337 — Sentencing Error
Appellant was convicted of assault with force likely to cause great bodily injury, but the abstract erroneously stated he was convicted of assault with a firearm. The error caused appellant to be misclassified in prison as a violent felon eligible for 15% credits rather than 50%. It also risked being construed as a strike prior in future proceedings. The Attorney General conceded the error, and the Court of Appeal ordered it corrected.
(S) NFA

Schuck, John — People v. Pomier, E046465 — Security Fee; Abstract of Judgment
The Attorney General and Court of Appeal agreed that the trial court incorrectly ordered $180 in court security fees rather than $140 for seven counts and that the abstract of judgment incorrectly indicated a two-year rather than a one-year sentence. (I) HCC

Somers, Robert — People v. Ruvalcaba, E046834 — Probation Conditions
Appellant’s probation condition is modified to read: “Not associate with any unrelated person whom defendant knows to be on probation or parole.” Trial court originally neglected to include the knowledge requirement. (I) LKH

Kanefield, Teri — In re J.C., E046910 — Indian Child Welfare Act (ICWA)
Limited remand in Welfare and Institutions Code section 366.26 appeal, where father demonstrated the agency and juvenile court made no inquiry of father regarding Native American Indian heritage. In the appeal (via Code Civ. Pro., § 909 motion), father claimed Indian heritage by way of declaration. (A) LMF

Norman, Jan — People v. Stewart, G039316 — Penal Code Section 654
The Court of Appeal agreed with appellant’s argument that sentence for vehicle tampering must be stayed, because the offense is based upon the same conduct as the separately sentenced attempted burglary conviction. (A) APJ

Wilson, Sachi — People v. Heredia, G039554 — Evidentiary Error
Trial court erred in allowing Evidence Code section 1109 evidence in that defendant had shoved the victim several times in the past. Record didn’t show when the shoving had occurred or whether defendant and the victim had a type of relationship described in Penal Code section 13700 or Family Code section 6211 at the times of such incidents. Court of Appeal found it was “reasonably probable” the jury would have acquitted defendant of misdemeanor domestic batter with corporal injury absent the evidence, so the conviction was reversed. In addition, the Court of Appeal found trial counsel failed to act as reasonably competent counsel because he did not file a Pitchess motion. Matter reversed and remanded to the trial court with directions to allow defendant the opportunity to file a Pitchess motion. (I) LAR

Eskenazi, Lauren — People v. Ruiz, G039975— Probation Conditions
Court of Appeal agreed that multiple probation conditions needed to be amended to include knowledge requirement and agreed this issue should be reached on appeal after a guilty plea anticipating such probation conditions despite there being no certificate of probable cause. (A) JLP

Olsen, Nancy — People v. Arreguin, G040118 — Penal Code Section 654
Appellant argued, the People conceded, and the court agreed that a sentence for residential burglary should be stayed since a sentence for residential robbery was also imposed. (I) HCC

Tran, Thien Huong – People v. Magallanes, G040133 – Dual Convictions
In a published opinion, the Court of Appeal held that defendant may not be convicted of both carjacking and receiving stolen property when the vehicle is the same one carjacked based on the same rationale as enunciated in People v. Recio. (2007) 156 Cal.App.4th 719. (A) PED

Bodo, Maureen — In re D.S, G040682 — Wobbler Determination
The Attorney General conceded and the Court of Appeal agreed that the juvenile court failed to exercise its discretion to determine whether the sexual battery in this case was a felony or misdemeanor as required by Welfare and Institutions Code section 702.
(A) APJ

APRIL 2009

Schooley, William — In re Ali H., D052417 — Insufficiency of Evidence
Reversal for insufficient evidence that minor assisted in the crimes of burglary and grand theft. (I) JLP

Auwarter, Neil — People v. Murrillo, D052909 — Penal Code Section 654
Defendant burglarized a car, from which he took a credit card he later used to make two purchases at a 7-11 store. He plead guilty to multiple offenses based on the car burglary and theft and the 7-11 burglary and thefts, in exchange for a sentencing lid. The sentencing court imposed separate terms for each offense, including a consecutive term for illegally acquiring the credit card taken in the car burglary. The Court of Appeal agreed the sentencing court violated Penal Code section 654 as to four counts by imposing separate terms, including one consecutive term. The court found no certificate of probable cause was required because appellant was not attacking the plea. Similarly, the court rejected the Attorney General’s argument the appeal was barred by rule 4.412(b), which provides a guilty plea providing a “specified prison term” waives any claim of section 654 error. The court reasoned a sentencing “lid” is not a “specified prison term.” Nor was the trial court’s standard admonishment of the maximum sentence possible as a result of the plea a “specified prison term.” Remanded for resentencing. (S) NFA

Kraft, Rudy — People v. O’Shell, D052192 — Sexually Violent Predator
Trial court improperly excluded as irrelevant evidence defendant knew he was facing Third Strike if he reoffended and thus was motivated to seek treatment because he faced a life term. Such evidence bore on the credibility and sincerity of the defendant’s claim he would seek treatment, and thus was unlikely to reoffend. But the error in excluding this evidence was harmless, because it was unrelated to the central theme of the defense case, that of proving the defendant no longer had a mental disorder. (I) LMF

Torres, Stephen — People v. Palos, D054621 — Credits
Affirmed as modified. Actual and conduct credits were correctly pronounced but incorrectly recorded in the minute order and abstract of judgment, which must be amended to accurately reflect the credits. (I) AMJ

Schmitt, Melissa — People v. Hudson, D051998 — Dual Convictions
Jury found appellant guilty of both unlawfully taking or driving a vehicle and receiving a stolen vehicle. Court agreed appellant could only be convicted of one of these offenses as there was insufficient evidence appellant drove the vehicle after he took and drove it. (A) LAR

Nelson, Laurel — In re Jonathan M., D052919 — Hearsay
Court of Appeal reversed juvenile true finding, after finding trial court erroneously admitted 911 tapes, offered for their truth, without adequate foundation to ensure their trustworthiness or completeness under a hearsay exception. It particularly found that the record was without sufficient evidence to support the spontaneous statement exception. (I) JLP

Shudde, Athena — People v. Hearn, D053108 — Penal Code Section 654
Punishment for unlawful possession of a ammunition stayed pursuant to Penal Code section 654 where defendant was also punished for possession of a firearm. (I) PED.

Benedict, Amanda — People v. Perez, D053188 — Insufficiency of Evidence
Conviction for vehicle burglary reversed for insufficient evidence where the evidence showed appellant and a companion vandalized a car, but did not establish which of them reached in and removed property. (I) NFA

Wilson, Sachi — People v. Love, D053578 — Restitution and Probation Revocation Fines
Attorney General conceded and Court of Appeal agreed that appellant erroneously received $1000 restitution and parole revocation fines at sentencing after a probation violation, when she had received $200 fines. Also, Attorney General conceded and Court of Appeal agreed that $200 probation revocation fine was ex post facto violation.
(A) JLP

Stanton, Marta — People v. Wyman, D053987 — Restitution Fine
Affirmed as modified and remanded. Trial court erred, upon revocation of probation, in ordering $800 restitution fines, because $200 fines were ordered when placed on probation. (I) AMJ

Vento, Christine — People v. Belcher, E041148 — Sentencing; Strike Prior
True finding that Federal robbery conviction constituted trike prior is reversed based on insufficient evidence. Judgment also reversed with respect to sentence based on multiple sentencing errors. Case remanded for resentencing. (I) PED

McKim, Joanna — People v. Alarcon, E044063 — New Trial Motion/New Counsel
At the sentencing hearing, appellant asked for a continuance, stating that counsel had refused to file a motion for new trial. He asked the court for a continuance to get the trial transcripts for the purpose and for pro. per. status or for appointed counsel. Without any further inquiry or hearing, the court denied defendant’s request for a continuance, denied his request for a new attorney, and denied his request for transcripts. The court informed defendant that he was free to seek appellate review of the verdict and “any order and findings made by the court before and after that verdict.”
The Attorney General conceded that the court erred in failing to conduct a Marsden hearing and agreed that the appellate court should reverse and remand the matter to the trial court for a Marsden hearing, but contended the motions for pro. per. status and for a continuance were untimely. The Court of Appeal agreed that a limited remand was necessary. Further, if a appellant makes an alternative request for the appointment of new counsel or to file a motion for new trial in pro. per., the trial court must conduct a sufficient inquiry to determine which alternative appellant wishes to pursue. The trial court cannot exercise discretion under Faretta if it fails to conduct at least a sufficient inquiry to determine whether self-representation is actually what the defendant is seeking and if so, to determine whether to grant the request. The Court of Appeal reversed appellant’s conviction and remanded with directions to the trial court to determine whether appellant wanted to proceed in pro. per. or to have new counsel appointed to represent him in a motion for new trial, and then to conduct an appropriate hearing on the Marsden or Faretta motion. After resolution of the status of counsel, the trial court must then address the status and/or merits of any new trial motion filed. (I) HCC

Buckley, Stephen — In re M.S., E044671 — Probation Condition
Knowledge element ordered to be added to probation condition prohibiting weapon possession. (I) JLP

Pfeiffer, Rich; Forrey-Baker, Lelah — In re S.R., E046194 — Indian Child Welfare Act (ICWA)
The Court of Appeal reversed the termination of parental rights on several children to provide ICWA notice. (I) CAG

Tavano, Joseph — People v. Burns, G039832 — Insufficiency of Evidence (Gang Crime)
Court of Appeal found insufficient evidence supported appellant’s substantive gang participation conviction, where the evidence showed a straightforward street robbery with no gang connection. (I) NFA

Cabrera, Gil — People v. Kasie, G040232 — Penal Code Section 654
Court ordered concurrent sentences for three grand theft counts stayed pursuant to Penal Code section 654, when sentences also were imposed for three counts of issuing checks with insufficient funds, where the money stolen underlying the grand theft counts came from the checks with insufficient funds. (I) JLP

Hinkle, Stephen — People v. Gjurashaj, G040642 — Victim Restitution
Affirmed as modified. Order modified, reducing victim restitution to reflect correct calculation. (I) AMJ

Brisbois, Patricia— People v. Pearl, G041316 — Penal Code Section 1538.5
Reversal of both convictions after jury trial, because motion to suppress was erroneously denied, where prosecution failed to prove appellant was on parole at time of searches that took place more than four years after start of parole term. (I) JLP

Cava, Dennis — People v. Hughes, G041437 — Penal Code Section 995
After a preliminary hearing, the magistrate did not bind over on a gang allegation on the basis that the particular confrontation was personal in nature. Nevertheless, the prosecutor (Riverside District Attorney) charged a gang allegation in the information. On defendant’s section 995 motion, the court dismissed the allegation, concluding that the magistrate had made factual findings. The People appealed, and the Court of Appeal affirmed the dismissal, again concluding that the magistrate had made a factual finding that the dispute was personal, not gang-related. (I) HCC

MARCH 2009

Weis, Lizabeth — People v. Cuddeback, D052191 — Marsden
Reversal for failure to hold post-conviction Marsden hearing, where defense counsel had indicated appellant wanted a continuance and new appointed counsel to consider a motion for new trial based on ineffective assistance of counsel, but where court denied such requests based on independent review of trial without adequately inquiring into appellant’s concerns. (I) JLP

Schooley, William — People v. Harris, D052257 — Proposition 36
Certified for Publication. Case remanded to trial court for resentencing under Proposition 36. Appellant was convicted of transportation of a controlled substance and the jury found the transportation of the drugs was for personal use within the meaning of Penal Code section 1210, subdivision (a). At sentencing, the probation report did not mention eligibility for Proposition 36 probation and none of the parties considered that possibility. The trial court imposed a 19-year prison term. The Court of Appeal found the 19-year prison term was unauthorized because Proposition 36 probation was mandatory based on the express jury finding that the transportation was for personal use. (I) BCT

Blake, Christopher — People v. Kristen H., D052582 — Sex Offender Registration
Pursuant to People v. Hofsheier (2006) 37 Cal.4th 1185, appellant should not be required to register as a Sex offender for a violation of Penal Code section 288a. (I) PED

Novoa, Kathleen — People v. Butler, D052675 — Restitution Fine
Attorney General conceded and Court of Appeal reversed, because trial court lacked authority to impose restitution and parole revocation fines of $600 at time of imposing prison sentence after probation revocation, when it imposed $400 restitution and parole revocation fines at time of granting probation. (I) JLP

Rich, Renee — People v. Mendoza, D053175 — Restitution Fine; Custody Credits
Attorney General conceded and the Court of Appeal agreed the trial court improperly increased the restitution fine amount to $600 after probation revocation from the $200 originally imposed at time probation was granted. The judgment was also modified to reflect correct presentence credits. (I) BCT

Benedict, Amanda — In re Andrew O., D053258 — Restitution Fine
Reimposed victim Restitution fine of $264, which minor had been previously ordered to pay in an earlier delinquency, was ordered reversed, because it remained an enforceable obligation from the earlier proceeding. (I) PED

Handy, Elizabeth — In re Anna S., D053800 — Welfare and Institutions Code Section 388 Petition
Child filed appeal from juvenile court’s grant of mother’s section 388 petition that allowed child to be placed with mother with family maintenance services. Appellate court reversed, finding that the juvenile court had abused its discretion in granting the petition. (I) ACS

Levy, Richard — People v. Arroyo, E040796 — Instructional Error
Enhancements under sections 186.22, subdivision (b) (gang benefit) and 12022.53 (firearm use by a gang member) were reversed, where the instructions permitted the jury to make a finding of a predicate offense necessary to establish the primary activity element on the basis of a crime committed after the charged crimes. (I) HCC

Yanis, Mark — People v. Mendoza, E044651 — Custody Credits
Case was remanded for the trial court to calculate appellant’s presentence custody credit and to prepare an amended abstract of judgment. (I) BCT

Power, Richard — People v. Webster, E045072 — Insufficiency of Evidence
True finding that defendant’s 1985 Ohio conviction for aggravated burglary constituted a strike prior reversed because the evidence was insufficient. (I) MCR

Kraft, Rudy — People v. Dean, E041513 — Sexually Violent Predator (SVP) Recommittment
In affirming this SVP judgment for recommittment, the court agreed it was error to allow the People’s experts to testify in detail from state hospital and institutional records. The records are inadmissible under People v. Otto (2001) 26 Cal.4th 200, and there was no attempt to admit the records as business records under Evidence Code sections 1271 and 1372. The error was deemed harmless in light of the limiting instructions given the jury, and the defendant’s testimony regarding some of the matters on direct and redirect. In denying the defense’s claim that permitting the People to present two experts, while the defense is limited to one expert, violated due process, the court held the SVP statute did not require the People to prove its case with two experts. The court observed that the testimony of the People’s two experts appeared to be cumulative, but no objection was raised to the testimony on this ground. (I) LMF

Bookout Randall — People v. Brobst, E042987 — Penal Code Section 654
Possession for sale count ordered stayed pursuant to Penal Code section 654 where trial court had found it to be inseparable from the transportation count. (I) PED

De La Sota, Richard — People v. Keegan, E043152 — Insufficiency of Evidence
In appeal after Penal Code section 1118 motion, Court of Appeal concluded that evidence, as it existed at close of prosecution’s case, did not establish intent necessary to support three convictions of theft by false pretense. (I) DKR

Lathrop, Stephen — People v. Allen, E043652 — Double Jeopardy
Penal Code section 12022.53, subdivision (b) sentence enhancements on three counts reversed as re-trial and conviction on these enhancements was barred by double jeopardy. True findings on lesser included enhancements under section 12022.53, subdivision (b) from previous trial were ordered reinstated. (I) PED

Torres, Steven — People v. McGheeroyo, E043870 — Custody Credits
Appellant argued, the Attorney General conceded, and the court agreed that because the current offense was neither serious nor violent, Penal Code section 4019 governed appellant’s credits, and, hence , he was entitled to one-for-two custody credits instead of the 20% awarded by the trial court. (I) HCC

Olsen, Nancy — People v. Martinez, E044199 — Lesser Offenses; Penal Code Section 654
Court of Appeal and People agreed that appellant’s convictions of carjacking and kidnaping, which were stayed, must be dismissed because they are lesser included offenses within the crime of kidnaping during a commission of a carjacking. Execution of sentence on two other counts are stayed because they are the underlying felonies to the felony-murder which were part of one continuous transaction. (I) AMJ

Braden, Julie — In re F.R., et al., E046042 — Indian Child Welfare Act (ICWA)
The Department of Public Social Services failed to properly notice the Indian tribes by omitting any information about the father’s relatives, possibly compounded by deficiencies in the proofs of service. (I) CAG

Douglas, Benedon — People v. Medina, E046082 — Mistrial
Remand following People’s appeal from the dismissal of the case after a grant of a mistrial based on prosecutor misconduct. Court of Appeal agreed that trial court was correct in granting mistrial due to discovery violation, but found the record did not include the necessary findings to support the dismissal. Remanded for a hearing to make findings on whether the prosecutor intentionally committed the misconduct to provoke a mistrial, or knowingly committed the misconduct to avoid an acquittal, or whether a retrial should be ordered. (I) AMJ

Stafford, Victoria — People v. Warwick, E045404 — Abstract of Judgment
Abstract of judgment ordered modified to reflect the correct description of the offense convicted of. (I) AMJ

Hinkle, Stephen — People v. Gibson, E045695 — Ability to Pay Attorney’s Fees
Because the record on appeal was devoid of any evidence appellant received notice of a hearing to determine ability to pay attorney’s fees, Court of Appeal agreed with appellant’s argument that the matter must be remanded to give appellant notice and a hearing on her ability to pay. (I) APJ

Capriola, William — People v. Singer, E045707 — Probation Conditions
The Attorney General conceded and the Court of Appeal agreed probation conditions needed to be modified to clarify that prohibited conduct must be known to the probationer rather than simply known in general. (I) APJ

Pactor, Scott — In re Christopher B., E045758 — Wobbler
The Attorney General conceded and the Court of Appeal agreed that the matter must be remanded to the juvenile court to allow the court to make a determination of whether the burglary offense was a felony or misdemeanor pursuant Welfare and Institutions Code section 702. At the contested jurisdictional hearing the court had reserved on the wobbler issue and at disposition the matter was never addressed. (A) APJ

Scott, Terrence – People v. Wilson, E045817 – Custody Credits
Remand for correct determination of custody credits. (I) PED

Scott, Terrence — People v. Williams, G040347 — Improper Consecutive Term
Court erred when it imposed a consecutive term for the firearm enhancement related to count two, robbery, while imposing a concurrent term for the robbery itself. Remanded for resentencing. (I) MCR

Ting, Allison — In re S.W., G040651 — Insufficiency of Evidence
Evidence was insufficient to support count 1 (lewd act of child) in that the evidence did not establish that the minor-appellant was over 14 years old or that he knew the wrongfulness of his act. Remanded for new disposition hearing as to count 2. (I) AMJ

Buckley, Christian (Galvan); Stafford, Victoria (Turner) — People v. Galvan and Turner, G039597 — Restitution
Judgment ordered modified to provide expressly that defendants are jointly and severally liable to pay $2,048.88 in direct victim restitution. (I) LKH

Capriola, William — People v. Sanchez, G039615 — Lesser Included Offenses
Reversal of simple assault conviction because jury improperly found defendant guilty of both simple assault and simple battery as lesser included offenses of single charged Penal Code section 288 offense. (I) JLP

Marshall, Gregory — P v. Em, G039806 — Cruel and Unusual Punishment
Although the Court of Appeal, in a published opinion, found that appellant’s sentence of two consecutive 25-year-to-life terms does not constitute cruel and unusual punishment, a dissenting justice found the 50-year-to-life sentence to be disproportionate to appellant’s culpability. Appellant was 15 years old and was present in a car when a fellow gang-member shot and killed a man in the course of a robbery. Justice Moore found that given the age and immaturity of the appellant, concurrent terms of 25-years-to-life would withstand scrutiny and “society would be served if [he]had a glimmer of hope to motivate him to rehabilitate.” (I) APJ

Sheehy, Kevin — In re J.R., G039884 — Probation Conditions
Juvenile probation conditions prohibiting the appellant from associating with anyone disapproved of by the court and any member of a tagging crew that engages in unauthorized tagging activities ordered modified to add knowledge requirement. (I) PED

Ting, Allison — People v. Cruz, G039918 — Insufficiency of Evidence /Street Terrorism
The Court of Appeal reversed appellant’s street terrorism conviction (Pen. Code, § 186.22, subd.(a)), because the evidence was insufficient that appellant committed, or aided and abetted, a distinct and separate felony. (People v. Lamas (2007) 42 Cal.4th 516, 523.) In addition to the street terrorism conviction, appellant was also convicted of misdemeanor vandalism (Pen. Code, § 594, subd. (b)(2)(A)), and the jury found it was for the benefit of a criminal street gang (Pen. Code, § 186.22, subd. (d)). The Attorney General elected to use the current misdemeanor vandalism conviction for the benefit of the gang as the qualifying felony to support the third element of the street terrorism charge. The court found the misdemeanor vandalism conviction was not a distinct felony because section 186.22, subdivision (d) prescribes an alternate penalty, i.e., felony punishment, when the offense is punishable as a felony or a misdemeanor committed for the gang’s benefit. Here, the vandalism was a straight misdemeanor, not a “wobbler.” Therefore, section 186.22, subdivision (d) did not apply. Since the misdemeanor vandalism charge could not be treated as a felony, the People did not prove a distinct felony to support the gang terrorism conviction. Additionally, neither the misdemeanor vandalism nor the reversed street terrorism conviction qualified as serious felonies. Thus, the two five-year enhancements under section 667, subdivision (a)) were ordered stricken. (I) BCT

Rich, Renee — People v. Contreras, G039946 — Verdict
Defendant was convicted of attempted burglary. The trial court sentenced defendant as if the jury had found him guilty of first degree burglary. Because the jury’s verdict did not contain a finding that defendant committed attempted first degree burglary or that he had attempted to commit residential burglary or burglary of an inhabited dwelling, Penal Code section 1157 requires the judgment to be modified to reflect a conviction for attempted second degree burglary. (A) LAR

FEBRUARY 2009

Lanahan, John — People v. Bunch, D052519 — Jury Waiver
In the first appeal, the Court of Appeal vacated the sentence, concluding there was insufficient evidence to support the trial court’s finding that the specific enhancement allegations were true. On remand, the trial court conducted a bench trial, but failed to procure a jury waiver from appellant. Court of Appeal reversed again, finding court erred in conducting the bench trial without a jury waiver. (I) LAR

King, Nancy — People v. Garica-Carpio, D052516 — Probation Conditions
Minor was declared a ward of the court after admitting to transporting more than 28.5 grams of marijuana (Health & Saf. Code, § 11360, subd. (a)). The court placed minor on probation and stayed a commitment to Camp Barrett for 365 days on the condition minor reside with his mother in Tijuana and only cross the border into the United States to attend school or work. On appeal, the court finds the probation condition unreasonable under the Lent test and violated minor’s constitutional rights of freedom of travel, assembly, and association. The juvenile court is directed to amend the conditions of probation, deleting the condition restricting minor’s ability to enter the United States for any purpose other than attending school or work. (I) LKH

Dwyer, John — In re Wright, D052126 — Parole Writ
After Governor overturned parole board’s finding of suitability for parole and superior court denied petitioner’s writ requesting relief, Court of Appeal ordered the Governor’s decision vacated and petitioner released. (I) JLP

Khoury, Charles — People v. Cervantes, D052065 — Withdrawal of Guilty Plea
Appellant pled guilty to false imprisonment (Pen. Code, § 236) with an agreement he would receive probation. Appellant failed to appear at the sentencing hearing. When he ultimately did appear in court, the trial court refused to accept the previously agreed upon disposition. The court denied appellant’s request to withdraw his plea and sentenced appellant to the upper term of three years in state prison. The Court of Appeal reversed, with instructions to allow appellant to withdraw the plea. The court also determined a certificate of probable cause is not necessary to reach this issue. (I) LKH

Shanahan, Maureen — People v. Barboza, D052050 — Restitution Fine
Trial court erred in imposing the $600 restitution fine after appellant’s probation was revoked because the court had imposed a $200 restitution fine when it granted probation. Attorney General’s office conceded error. (I) CBM/LKH

Owen, Thomas — People v. Joy, D051910 — Shackling
The Court of Appeal found that the trial court erred in allowing appellant to appear before the jury in shackles when there was no manifest need. The court also found that trial counsel was ineffective for not objecting to the shackles before the jury entered the courtroom and then calling attention to appellant’s shackles in front of the jury. The trial court further erred by failing to instruct the jury that the shackles had no bearing on the determination of guilt. The errors were prejudicial because the jury’s attention was drawn to the shackles and a message was thus conveyed that appellant was dangerous. In addition, the shackles prevented appellant from assisting her attorney because she was unable to write notes. (I) APJ

Peters, Gerald — People v. Lenore, D051304 — Striking Drug Enhancement
Trial court erred in staying rather than striking Health and Safety Code section 11370.2 prior drug enhancements because they are status enhancements related to the defendant and not to the current offense; they can only be imposed once to aggregate the defendant’s sentence. The judgment is modified to strike the prior drug enhancements for counts two and three. (I) AMJ

Lee, Konrad — In re Kenneth S., Jr., D053130 — Dependency Court Jurisdiction
Child was in legal guardianship with relative when father filed a Welfare and Institutions Code section 388 petition asking for a change in the visitation orders. Dependency court ordered an evidentiary hearing for the petition and, at that hearing, reinstated jurisdiction and appointed counsel for parties. After several continuances, the dependency court determined family court was the appropriate venue to modify the visitation orders and consequently dismissed the petition and terminated jurisdiction. Court of Appeal reversed, holding the dependency court retains jurisdiction over the child in a legal guardianship and that the dependency court should have proceeded to an evidentiary hearing on the merits as previously ordered. (I) LLF

Schwartzberg, Richard — People v. Penunuri, E045599 — Consecutive Sentencing
Court of Appeal reversed for trial court to exercise discretion whether to impose concurrent or consecutive sentence for dissuading a witness, when record showed trial court believed consecutive sentencing was mandatory under Penal Code section 1170.15. (I) JLP

Staley, John — People v. Medina, E045266 — Revocation of Driver’s license
Trial court’s order at sentencing hearing that the Department of Motor Vehicles was to revoke appellant’s privilege to operate a vehicle for the rest of his life was reversed, and the case remanded for the limited purpose of the court making the required finding pursuant to Vehicle Code section 13351.5 as to whether appellant used the vehicle as a deadly weapon. Court of Appeal ruled this determination did not require a jury finding ala Cunningham. (I) LAR

Booher, Robert — People v. Carcamo, E044188 — Penal Code Section 654
Sentences on counts 2 through4 (false imprisonment, criminal threats, and assault with a firearm) stayed to the first degree residential burglary count, as all four crimes were committed with a single intent and objective. (A) MCR

Marshall, Gregory — P. V. Barrera, E043950 — Striking Enhancement
At sentencing, the trial court stated that it desired to impose some mercy, but that the sentencing rules were mandatory, leaving it no discretion. Appellant contended, the People conceded, and the appellate court agreed that the trial court misunderstood its discretion to strike enhancements in the interest of justice, and therefore the matter must be remanded to allow the court to exercise its sentencing discretion. (I) HCC

Wass, Valerie — People v. O’Neal, E041678 — Competency to Stand Trial
The Attorney General and Court of Appeal agreed the trial court, in finding appellant competent to stand trial, failed to comply with the requirements of Welfare and Institutions Code sections 1368 and 1369. The trial court failed to appoint two mental health professional to evaluate appellant and each provide a report; it only appointed one professional. Further, appellant did not waive his right under section 1369 to a jury trial on the issue of competency. (I) AMJ

Fabian, Carl — People v. Rojas, E041605 — Insufficiency of Evidence
Court of Appeal agreed there was insufficient evidence of force to support a conviction for forcible rape in concert when there was no evidence anyone accomplished an act of intercourse with the victim by means of force. As a result of reversal on this count, multiple victim special circumstances no longer applicable to other counts against defendant. Case remanded for resentencing on remaining two counts. (I) LLF

Bostwick, James — People v. Myers, E036420 — Ineffective Assistance of Counsel
In this case, appellant had stolen some goods, but when confronted had surrendered same to security. When security personnel man-handled him, he struggled. Based on the struggling, he was charged with and pleaded guilty to Estes-type robbery. In 2005, on appeal, the sentence was reduced. The state courts, however, denied a collateral habeas corpus petition alleging ineffective assistance of counsel, based on insufficient advice re elements of Estes-type robbery. Counsel then pursued federal habeas corpus. In late 2008, the federal district court entered an order granting the writ and the state was given the choice of either permitting petitioner to withdraw his plea or releasing him from custody within 60 days after the order became final. The state did not appeal. Appellate counsel continued to represent petitioner. After petitioner withdrew his guilty plea, a new plea agreement was reached in which petitioner pleaded guilty to petty theft with a prior and admitted one strike and received the mid-term (two years) doubled, with six years credit. (I) HCC

McLaughlin, Robert — In re D.C., E045912 — Indian Child Welfare Act (ICWA)
Limited reversal on failure to give adequate ICWA notice. The record did not show that adequate ICWA notice was given. During the appeal, respondent submitted a request to augment the record with additional proof that ICWA notice was given. However, the dates of the items in the augment exhibits reflected that some tribes replied on the same day they were allegedly served. The JV-135 was inherently unreliable. (I) CAG

Peabody, Jennifer — People v. Kasra, G039709 — Penal Code Section 654
Court of Appeal orders two counts of identity theft stayed pursuant to Penal Code section 654 due to the conclusion that the defendant used the stolen identities with the same objective as in respective grand theft counts. (I) JLP

Sheehy, Kevin — People v. Eurich, G039648 — Penal Code Section 654
Appellant contended, People conceded, and court agreed that where assault with a firearm was based on display of the firearm in the course of a robbery, Penal Code section 654 precluded separate punishment. (I) HCC

Hill, Melissa — People v. Martinez, G039160 — Insufficiency of Evidence
Conviction of street terrorism under Penal Code section 186.22, subdivision (a) reversed for insufficient evidence, because there was no evidence that the assault in the case had any nexus to a gang other than one attacker being a gang member. There was no evidence of gang challenges, threats, signs, or colors. The victim was not a gang member, and the crime did not occur on gang territory. (I) DKR

Halka, Waldemar — People v. Herrera, G039028 — Inadmissible Hearsay
Judgment following conviction for murder and findings on allegations reversed. The trial court erred by permitting preliminary hearing testimony to be read into evidence due to an absent witness because the prosecution failed to exercise due diligence to secure the witness. The recorded testimony was the only evidence identifying appellant as the shooter. (I) AMJ

Rich, Renee — People v. Armer, G038900 — Probation Eligibility; Lesser Included Offense
Remanded for resentencing where the trial court’s finding appellant was ineligible for probation under Penal Code section 1203, subdivision (k) was in error because the prosecution failed to plead or prove the allegation. The Court of Appeal found there was an implied pleading and proof requirement in the statute. Also, conviction for petty theft with a prior stricken, because it is a lesser included offense of robbery. (A) MCR

Caldwell, William; Chirco, Donna — In re A.J., E046148 — ICWA
In this appeal from a judgment terminating parental rights, counsel for the mother and the father successfully argued the agency’s efforts to comply with ICWA notice requirements fell short in two respects. First, the notices did not contain the mother’s full name, aliases, and address. Second, the notices did not sufficiently identify the paternal grandparents and great-grandparents, although the agency was in contact with paternal relatives and presumably could obtain this information. Since the court could not determine what additional information the agency would have discovered from the relatives using reasonable diligence, it could not determine that the error was harmless. The court rejected the parents’ argument that it should not order a limited reversal because the sibling relationship exception was not fully litigated at the first Welfare and Institutions Code section 366.26 hearing. (I) LMF

Schuck, John — People v. Pezant, G040195 — Prior Prison Enhancement
Defendant was charged with being a felon in possession of a firearm and with a prior prison term enhancement (Pen Code, § 667.5, subd. (b)) based on the same prior. At trial, appellant admitted the prior conviction element of the felon with a firearm offense, but he never admitted serving a prior prison term. Nor was the prior prison term allegation submitted to the jury. At sentencing, the court imposed a one-year prior prison term enhancement. The Court of Appeal reversed, because it was never admitted or proved appellant served a prison term. (I) NFA

Dodd, John — People v. Leek, G040135 — Restitution
Court of Appeal struck $1700 restitution for expenses incurred by the victim due to appellant’s uncharged acts committed prior to the earliest charged offense. (I) NFA

Chandler, Kate — In re Jo. M., G040558, G040769 — Notice/Due Process
Juvenile court held three hearings and evidence showed mother never received proper notice to any hearing. At final hearing, identified only as a pretrial hearing, the juvenile court held a disposition hearing, changed custody of the child to his father, terminated jurisdiction, and issued exit orders. Mother was not present at any hearing, had no attorney appointed, and told the social worker she had a criminal hearing on the same day. Judgement reversed with remand for a new jurisdiction and disposition hearing following proper notice. (I) LLF

JANUARY 2009

Zivot, Tamara — In re Risher, D052419 — Probation Conditions
Attorney General and Court of Appeal agree that the conditions that minor have no contact with victims or witnesses and prohibiting him from wearing or possessing gang-related items be modified to include a knowledge element. (A) AMJ

Hennessey, Patrick — People v. Jeffcoat, D052250 — Lesser Offenses
Appellant was convicted of voluntary manslaughter (as a lesser included offense of murder) and assault with force likely to produce great bodily injury (as a lesser included offense of assault on a child resulting in death). The parties had agreed and the court had instructed the jury on battery and assault as lesser offenses of the felony assault count. In addition to conviction of assault with force likely to produce great bodily injury, the jury also returned verdicts for battery and simple assault. The People conceded and the Court of Appeal agreed that conviction for simple assault, a lesser included offense, was improper. While the court agreed with the People that battery is not a lesser included offense and appellant was on notice of the battery offense, nevertheless, the court struck the battery conviction. “Although [appellant] was on notice that the information impliedly charged the battery offense as a lesser offense of count 2 . . . , there is nothing to suggest that he was on notice that the information could be construed as impliedly charging the battery offense as a lesser offense in a distinct count.” (Original emphasis by the court.) (I) HCC

Owen, Thomas — In re Enrique G., D051878 — Probation Condition
Trial court is instructed to amend the ambiguous gang condition by reference to Penal Code section 186.22, subdivisions (e) and (f). (I) AMJ

Hill, Melissa; Cohen, Howard — People v. Melvin, D051727 — Escape; Parole
In one case, appellant pleaded guilty to possession of an explosive and evading a police officer, and in another to nonviolent escape from custody (Pen. Code, § 4532, subd. (a)(1)), pursuant to a plea bargain where sentence was imposed but execution suspended and probation granted. The imposed sentence included a concurrent term for the escape. When appellant’s probation was revoked, a new sentencing judge concluded that the previously imposed sentence was unauthorized in imposing a concurrent escape term. Appellant argued (relying upon People v. Gamble (2008) 164 Cal.App.4th 891), the People conceded, and the court agreed that a consecutive term is not mandatory for a conviction of nonviolent escape, and therefore, the concurrent sentence originally imposed was not unauthorized. Hence, the ultimate sentence was erroneous, and appellant was entitled to have his sentences run concurrently.

Appellant further argued, the People conceded, and the court agreed that the proper disposition is to reverse the sentence and direct the Department of Corrections to deduct from appellant’s parole term any time he spent in prison past his lawful release date. (In re Phelon (2005) 132 Cal.App.4th 1214.) (I) HCC

Dwyer, John — In re Rothwell, D051584 — Prison Conduct Credits
151 days of lost conduct credits restored where evidence that inmate possessed controlled substance in prison deemed insufficient. Narcotic in package addressed to defendant was intercepted by prison guard working in mail room prior to reaching defendant. (I) PED

Pfeiffer, Rich — In re Vargas, D051015 — Release on Parole
In this published decision, the court concluded there was no evidence to support the Governor’s ultimate conclusion that petitioner was unsuitable for parole. The court confined its review to the stated factors and rejected additional assertions by the Attorney General. The court concluded that the record did not establish how long or vigorously petitioner had beaten the decedent, and, hence, the evidence cited by the Governor neither showed exceptional callousness nor that the crime was especially heinous, atrocious, or cruel (original emphasis). Also, while the court did not agree with the Governor’s assessment that the second degree murder conviction amounted to a first degree murder, regardless, even if the mere existence of facts suggested some level of premeditation then, that did not necessarily constitute evidence that release of the petitioner now would unreasonably endanger public safety. Further, petitioner committed the murder under significant stress, i.e., the extenuating circumstances which led to the murder are unlikely to recur. Moreover, nothing in the record contradicts the Board’s conclusion that petitioner showed remorse, understood the magnitude of the offense, and accepted responsibility. The court declined to remand the matter to the Governor, since further consideration will not change the fact there was no evidence to support the Governor’s decision. (I) HCC

Staley, John (Saibu); Keiser, Susan (Squires); Dain, Tony (Valentino) — People v. Valentino et al., D049996 — Restitution
Appellants were convicted of a number of robberies. Each of the judgments entered against appellants was ordered modified so as to reduce the total amount of victim restitution awarded under section Penal Code section 1202.4, subdivision (f) to one bank by $133 and reduce the overall amount of victim restitution by the same sum. The judgment entered against Valentino was also modified so that with respect to direct victim restitution, he be held jointly and severally liable with the other appellants in regard to the specific robberies for which they were jointly responsible. (I) HCC

Lampkin, David — People v. Price, D048215 — Cunningham
Sentences for attempted robbery and assault with a firearm convictions as well as a Penal Code section 12022.5, subdivision (a)(1) firearm enhancement for assault conviction reversed and remanded for re-sentencing based on Cunningham error where two of the trial court’s reasons for imposing the upper term were not admitted or found true beyond a reasonable doubt by the jury. (I) PED

Jones, Sharon — People v. Soto, E043972 — Incorrect Sentence Term and 654 Stay
Attorney General and Court of Appeal agreed that the trial court erred in selecting the wrong term (6 years, rather then 4 years) for the robbery conviction, because the robbery was not done in concert. The trial court also erred in ordering a consecutive term on a count that should have been stayed. Abstract of judgment also ordered corrected to reflect that the subordinate terms are consecutive one-third terms, rather than full term. (I) AMJ

Dodd, John; Boire, Richard — People v. Mendiola et al., E043582 — Penal Code Section 654
Punishment for both possessing counterfeiting equipment in violation of Penal Code section 480, subdivision (a) and fictitious bills in violation of Penal Code section 476, were barred by Penal Code section 654. (I) JLP

Brajevich, Sally — People v. Williams, E042038 — Sentencing; Penal Code Section 654
The case was remanded for resentencing. The trial court was directed to stay the sentence for count 1 under Penal Code section 654, to reduce appellant’s sentence for the gang enhancement as to count 4 to one year, and to impose sentence on the gang enhancement allegation attached to count 2. (I) BCT

Vogelman, Monica (mother); Mallinger, Kathleen (father); Bookout, Susan (minors) — In re Cristian O., et al., D053154 — Adoptability
Order terminating parental rights is reversed because no substantial evidence supported a finding the minors were likely to be adopted by grandmother within a reasonable time. The case concerned a sibling set of three children (11 year old, 7 year old, and four year old). The minors had behavior problems, and the oldest did not want to be adopted by anyone other than a relative. A week before the Welfare and Institutions Code section 366.26 hearing, minors were placed with the maternal grandmother who committed to adopting them. However, no home study had been initiated before the section 366.26 hearing, grandmother had just moved to San Diego and was living with the maternal aunt and uncle, and the social worker was unsure whether grandmother would remain there or move. The Court of Appeal found minors were specifically adoptable, making a complete and proper assessment report essential. The court reversed the judgment and directed the superior court to order Agency to prepare a complete assessment report. The superior court was further ordered to hold a new hearing under section 366.26. (I) LKH

Vogelmann, Monica — In re A. R., D053125 — Servicemembers Civil Relief Act; Mootness
The trial court erred in not applying the Servicemembers Civil Relief Act (SCRA) to give the father a 90 day stay of the jurisdiction/disposition hearing as the stay is mandatory and preempts state law. Thus, SCRA preempted the statute requiring a disposition hearing within six months of the detention hearing. In addition, the appeal was not moot, although jurisdiction was terminated and custody had been given the mother with visitation to the father. Father’s visitation was severely restricted, and to overcome those restrictions, he would have to bring a modification petition in family court and prove changed circumstances. Thus, the issue is not moot if the purported error infects the outcome of subsequent proceedings. (I) CAG

Lankford, Valerie — In re Jeremy S., D053120 — Marsden
Court of Appeal agreed with counsel that mother’s letters to the court voicing complaints about her attorney should have been construed as Marsden motion and reversed judgment terminating reunification services for purpose of Marsden hearing. (I) JLP

Ballantine, Jean — People v. Duhon, E044444 — Cunningham
Trial court imposed the upper term based upon the factors that the crimes continued over a long period of two years and defendant took advantage of his position as the victim’s stepfather. Court of Appeal reversed the aggravated sentence since the jury had not decided the aggravating sentencing factors. (I) LAR

Zimmerman, Harry — People v. Mansfield, G040102 — Custody Credits
Penal Code section 4019 credits ordered awarded as opposed to section 2933.1 credits where great bodily injury enhancement attached to aggravated assault count was ordered stricken in its entirety as opposed to the punishment alone being ordered stricken. (I) PED

Wrubel, Sharon — People v. Diaz, G039522 — Sentencing
15 year to life term imposed pursuant to Penal Code section 186.22, subdivision (b) ordered stricken as this section does not impose such a term but rather requires that defendant not be eligible for parole until serving at least 15 years. Here, defendant received an LWOP term so he will never be eligible for parole. (I) PED

Greenberg, Mark — P. v. Maryland, G038928 — Sufficiency of Evidence
Appellant argued, respondent conceded, and the court agreed that a minute order demonstrating appellant had pleaded nolo contendere to violating Penal Code section 243, subdivision (d), was insufficient to prove a strike prior conviction, because it did not prove that appellant personally inflicted great bodily injury. (I) HCC

Flenniken, William — P v. Arguello, E045708 — Abstract Correction
Appellant pleaded to the sheet in return for an indicated sentence. One of the counts was necessarily included within one of the other counts. During sentencing, the trial court recognized this and expressed its intention to strike the lesser offense. However, the minute order and the abstract of judgment reflected that the sentence on the count was stayed. The Court of Appeal agreed with appellant’s argument that the offense was indeed a lesser included offense and the conviction must be stricken . (I) APJ

Lopez, Zandra — People v. Frumento, E044574 — Failure to Pronounce Judgment
Remanded for resentencing. Trial court erred in ordering a total prison term without specifying how it was imposing sentence on each count, and one of the counts was subject to Penal Code section 654. The minute order incorrectly recorded victim restitution where trial court failed to order restitution, and the amount recorded was more than the actual restitution due. (A) AMJ

Shusted, Mark — People v. Moreno, E044511 — Prior Prison Term
Attorney General conceded and Court of Appeal agreed the trial court erred when it imposed two Penal Code section 667.5, subdivision (b) enhancements. Because appellant had served only one prior prison term – a single continuous prison term for both of the prior convictions, even though the record showed he had two prior convictions for different crimes on different dates, only one enhancement was authorized. Appellant’s sentence was ordered reduced by a year. (A) CBM/RBB

Schwartzberg, Richard — People v. Shenouda, G040539 — Probation Conditions
Probation conditions and domestic violence protective order modified to include express knowledge requirements. (I) JLP

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