The unpublished opinions from the following cases can be viewed by visiting the Judicial Council Web site. The unpublished opinions remain on the Judicial Council Web site for 60 days from the date of the filing of the opinion.

JUNE 2008

Polsky, David — People v. Contreras, D049192 — Sentencing
Court agreed gang enhancements should have been stricken, not stayed. (I) LAR

Pfeiffer, Richard — In re Armstrong, D051629 — Parole
Governor reversed Board of Prison Terms’ decision to release petitioner on appeal. Trial court granted petition for writ of habeas corpus for release. Attorney General appealed. Court of Appeal affirmed trial court’s decision Governor's reversal lacked evidentiary basis and ordered immediate finality of opinion. (I) JLP

Morrison, Maria — People v. Roberts, E042192 — Sufficiency of Evidence
Court of Appeal found insufficient evidence of Penal Code section 290, subdivision (a)(1)(A) violation for failing to register in city of new location, because evidence did not establish appellant moved to a new location within California (it established he had moved to Montana). (I) JLP

Rich, Renee — People v. Loften, D050660 — Sentencing.
Trial court failed to exercise an informed sentencing discretion regarding possible California Rehabilitation Center commitment for appellant. (A) LAR

Shetty, Siri — People v. Villegas, D050662 — Victim Restitution Fine
Attorney General conceded and Court of Appeal agreed that trial court erred in ordering victim restitution for damage which did not result from a crime of which appellant was convicted. Under People v. Lai (2006) 138 Cal.App.4th 1227, 1249, when a defendant is sentenced to state prison, restitution under Penal Code section 1202.4, subdivision (f) is limited to losses caused by the criminal conduct for which the defendant was convicted. (I) CBM

Pfeiffer, Rich — In re Viray, D050934 — Parole
Prisoner petitioned for habeas corpus after Governor reversed finding by Board of Parole Hearings that petitioner was suitable for parole. In a published decision, Court of Appeal granted the writ and ordered petitioner be paroled. A majority of the court found the applicable standard of review was whether “some” evidence, or a “modicum” of evidence supported the Governor’s finding petitioner’s release posed an unreasonable risk to public safety. The court agreed with cases holding that the Governor’s finding of unreasonable risk could be based entirely on the facts of the commitment offense. However, the court disagreed with cases holding that such finding could be based on the finding the offense was more egregious than minimally necessary to commit the offense. Instead, the majority held the proper inquiry is whether the offense was more egregious than the typical such offense, and the ultimate inquiry is whether the facts of the offense support the finding parole would pose an unreasonable safety risk. One justice concurred in the result, but disagreed as to both the standard of review and the proper inquiry regarding the facts of the commitment offense. The concurring justice found that the standard of review was whether “some” or a “modicum” of evidence supported the Governor’s finding of any proper factor disfavoring parole. Where that factor was the egregiousness of the offense, the concurrence stated, the proper inquiry was whether the offense was more egregious than minimally necessary to convict. (I) NFA

Wenzell, Lewis — People v. Taylor, D051037 — Suppression of Evidence
Case remanded for trial court to make factual determination whether the defendant voluntarily provided his driver license to the police or the police seized it, and to grant the suppression motion if the latter, and deny it if the former. (I) RBB

Haggerty, Edward — People v. Adams, D051393 — Restitution Fines
Judgment modified. Attorney General and Court of Appeal agreed that trial court erred in imposing restitution fines in a higher amount when he was sentenced to prison following revocation of probation, because the court had already imposed $200 restitution fines when appellant had pleaded guilty and was placed on probation. (I) AMJ

Weaver, Eric — In re Max M., D051558 — Sufficiency of Evidence
The Court of Appeal found that knowledge is a requirement of possessing a knife on school grounds, and the prosecution provided no evidence minor knowingly possessed the knife in his backpack (minor claimed he did not know and juvenile court stated it did not believe knowledge was a requirement before making a true finding). True finding reversed. (I) APJ

Baugess, Susan — People v. Riley, E043043 — Probation Revocation Fine
Trial court erred in imposing a $220 probation revocation fine under Penal Code section 1202.44, where the restitution fine imposed under Penal Code section 1202.4 was only $200. Even though the court had imposed a $20 administrative fee on top of the Penal Code section 1202.4 fine, that additional amount cannot be included in the Penal Code section 1202.44 fine, which is limited to the equivalent of the restitution fine.
(I) CBM

Robinson, Warren — In re Anthony M., D052421 — Modification of Judgment
The lower court dismissed a gang allegation (Pen. Code, § 12031, subdivision (a)(2)(C)), but the minute order incorrectly reflected a true finding on the allegation. Court of Appeal modified the judgment to reflect the dismissal of the Penal Code section 12031, subdivision (a)(2)(C) allegation attached to count 3. (I) LAR

Milcetic, Maryann (mother), Lee, Konrad (father), St. Julian, Andrea (minor) — In re Claudia E., D052169 — Dependency Declaratory Relief
Declaratory relief is available in dependency cases in the context of a child welfare agency not complying with statutory time requirements for the filing of supplemental petitions. (I) CAG

Rubin, Andrew and Cohen, Howard — In re Carter, E041740 — Involuntary Statements; Sufficiency of the Evidence
Attorney Rubin prepared and filed the pleadings. ADI staff attorney Cohen orally argued the case. Judgment reversed, because the minor’s statements to the police were the product of coercion and, hence, involuntary, and the evidence was insufficient to support the true finding on the petition. (I) AMJ

Benedon, Douglas — People v. Sisneros, E042862 — Pet Condition; Parole Fine
Reversal to modify overbroad pet condition and to modify parole revocation fine that was $20 greater than restitution fine. (I) JLP

Nelson, Laurel — People v. Aguilar, E042949 — Sufficiency of Evidence
The trial court’s true finding of a strike prior after a bench trial is reversed for insufficient evidence. Appellant’s admissions in the probation report should not have been considered by the trial court to determine the truth of the strike and the remaining record of the prior conviction did not establish that the force-likely assault qualified as a strike by the use of a deadly weapon or infliction of great bodily injury on a non-accomplice. The Court of Appeal remanded for resentencing or a new trial on the prior, at the prosecution’s election. (I) DKR

Jog, Anita P. — People v. Badillo, E043522 — Resentencing
The Court of Appeal held that appellant’s right to be present at his resentencing (after an earlier successful appeal) was violated where the record shows no evidence that appellant was notified of the hearing or properly waived his right to be present. The violation was not harmless beyond a reasonable doubt, because the trial court made discretionary decisions at the resentencing (making a sentence — onsecutive which had previously been concurrent) which were harmful to appellant. (S) APJ

Peabody, Jennifer — People v. Munoz, E043690 – Probation Term
Appellant was convicted of misdemeanor offenses and placed on probation. Respondent conceded and Court of Appeal agreed the trial court erred in placing appellant on probation for a term of five years, since Penal Code section 1203a limits probation to a maximum of three years for misdemeanor convictions. (A) BCT

McKim, Joana — People v. Espinoza, E044145 — Prior Prison Term
Trial court imposed both a five-year serious felony prior (Pen. Code, § 667, subd. (a)) and a one-year prison prior (Pen. Code, § 667.5, subd. (b)), where the priors were based upon same offense. Court of Appeal struck the one-year prior. (PED)

Rehm, Linda (for guardian); Lee, Konrad (for minor) — In re R.D., E044391 — Transfer Out of Dependency Case
Los Angeles Department of Children and Family Services transferred out this case to San Bernardino where the child lived with his legal guardian. Among other things, San Bernardino failed to properly conduct a hearing in transferring the case back to Los Angeles. The guardian and the minor joined with the brief by Los Angeles DCFS. The Court of Appeal reversed for a new hearing in a published decision. (I) CAG

Shors, Susan — People v. Angel, G038815 — Sufficiency of Evidence
Two counts of kidnapping to commit robbery and two counts of kidnapping for ransom reversed for insufficiency of the evidence as there was a single abduction followed by a continuous period of detention. (I) PED

Matsumoto, Ellen — People v. Gomez, G038446 — Statute of Limitations
People conceded and court agreed where defense objected to instruction upon unlawful sexual intercourse as a lesser included offense of aggravated sexual assault of a child, conviction was precluded by the three-year statute of limitation as to that offense, and the conviction on that count was dismissed. (I) HCC

Margolis, Gideon and Schwartzberg, Richard — People v. Lais — G036205 – Sufficiency of Evidence
Several counts reversed for lack of evidence because the prosecutor failed to make the requisite showing or because the continuing nature of appellant’s conduct in holding himself out to be an attorney precluded conviction on multiple counts involving the same victim. In addition, appellant’s representation of clients from other states is insufficient as a matter of law to support conviction. Case remanded for re-sentencing. (I) PED/CMS

Bostwick, James — People v. Montes, G039089 — Receiving Stolen Property
Attorney General conceded and Court of Appeal agreed that appellant could not be convicted of both robbery and receipt of the same stolen property. The court reversed the conviction for receiving stolen property. The court also agreed appellant was entitled to one additional day of credit. (I) BCT

Nalls, Christopher — In re Michael S., G039728 — Penal Code Section 654
Attorney General conceded and court agreed that appellant could not be sentenced on both the vandalism offense and the graffiti tool offense, because they were part of a single, indivisible, transaction sharing the same objective. Sentence reversed and remanded for resentencing. (A) BCT

Blake, Christopher — People v. Garcia, G039572 — Insanity Commitment.
Court agreed trial court incorrectly determined the maximum term of commitment pursuant to Penal Code section 1026 (appellant was committed to Patton). The term is to be reduced by 16 months, because section 654 prohibits a separate punishment for the false imprisonment offenses in this case, where they were carried out solely to facilitate the assault on the victims, and, therefore, a separate punishment is prohibited. (I) LAR

Tobin, Amy — In re Melanie S., G039497 — Indian Child Welfare Act (ICWA)
Respondent conceded inadequate ICWA notice was given. (A) CAG

Nordin, Kenneth — People v. Berg, G039210 — Penal Code Section 654
Judgment modified to stay two counts under Penal Code section 654 and the abstract of judgment ordered corrected to reflect a stayed Penal Code section 12022.7, subdivision (a) enhancement. (I) BCT

Beckham, Sylvia Whatley — People v. Suarez, G039156 — Sufficiency of Evidence/ Accomplice
Accessory conviction reversed for insufficient independent evidence that corroborated an accomplice’s testimony connecting defendant to the offense. (I) RBB

Lee, Konrad (mother), Pfeiffer, Rich (father) — In re Baby Girl S., G039802 — Mootness
Appeal by the Orange County Social Services Agency challenging the juvenile court’s decision to grant mother reunification services. Mother had failed to reunify with four other children and as a result, the Agency asked the court to deny her services. Respondent Mother filed a motion to dismiss the appeal as moot (father joined), because by the time the appeal was decided, the issue would be moot, because mother will have already received the reunification services at issue. The Court of Appeal agreed and dismissed the case as moot. (I) LMF

Clark, Grace — In re Kevin D., G039047 — Sufficiency of Evidence
Court of Appeal reversed a true finding of felony vandalism (Pen. Code, § 594) due to insufficient evidence of damage over $400. As a result, it also reversed a true finding on a gang charge (Pen. Code, § 186.22, subd. (a)) due to the lack of proof of felonious conduct. Evidence of damages was insufficient wheret the only evidence came from the owner of the vehicle who provided a guess as to potential repair costs. The Court of Appeal found the juvenile court erred in permitting such testimony. (A) JLP

MAY 2008

Stanton, Marta — In re Joseph D., E043008 — Juvenile Sentencing
Court of Appeal remanded for new juvenile disposition where trial court did not comply with the requirement of Welfare and Institutions Code section 702 that the court expressly find as to a juvenile’s “wobbler” offense whether it is a felony or a misdemeanor.
(I) NFA

Margolis, Gideon — People v. Lynch, D050239 — Lesser Included Offense; Penal Code Section 654
1) False imprisonment conviction reversed as a necessarily included offense of kidnaping; 2) case remanded for trial court to determine whether criminal threats were an indivisible part of kidnaping and thus subject to Penal Code section 654. (I) RBB

Cox-Harguindeguy, Marianne — People v. Haiman, D048789 — Prior Bad Acts Evidence
Court of Appeal reversed lewd act conviction and 80-years-to-life sentence based on erroneous admission of evidence of prior sexual conduct. Defendant was tried for committing a lewd act on a child who was an overnight guest in his home. Pursuant to Evidence Code section 1108, the prosecution introduced extensive and detailed testimony of appellant's former stepdaughter and her friend that appellant molested them when they were children. The prosecution also admitted a significant portion of appellant's massive child pornography collection, including a downloaded video of a child being molested in a fashion very similar to the act for which appellant was on trial. The Court of Appeal found the admission of this evidence was more prejudicial than probative under Evidence Code section 352, largely because of the extent and detail of the prior victim testimony and the showing of the video. The court concluded the evidence amounted to "overkill" and that appellant was “essentially tried as a sex offending monster with the propensity to commit the charged sex offense rather than for what he did.” The court applied the Chapman federal constitutional standard of prejudice and concluded the error was not harmless beyond a reasonable doubt. (I) NFA

Nelson, Laurel — People v. Alsayad, D048930 — General vs. Specific Charges
Court reversed in part because appellant was improperly charged with six counts of the felony of procuring or offering a false or forged document, when he should have been charged with the more specific misdemeanor offense of making a false statement to the DMV. (I) AMJ

Norris, Ronda — People v. Groce, D049244 — New Trial Motion
The Attorney General conceded, and the Court of Appeal agreed, the trial court erred in refusing to consider a motion for new trial which appellant attempted to file at his sentencing hearing. The Court of Appeal conditionally reversed the judgment to give appellant an opportunity to file the new trial motion that he sought to file at his sentencing hearing, and for the trial court to consider and rule on this motion. In the event a new trial is not ordered and the judgment is reinstated, the appeal shall be reinstated and consolidated with the appeal (if any) from the trial court’s denial of the new trial motion. (I) HCC

Shudde, Athena — People v. Johnson, D049357 — Parole Restitution Fine
The Court of Appeal agreed with appellant’s argument that the $400 parole restitution fine imposed in this case violates ex post facto principles when the offense occurred in 1991 before the operative date of the authorizing statute, Penal Code section 1202.45. (I)APJ

Blake, Christopher — People v. Smith, D049993 — Jury Instructions; Collateral Estoppel.
In a published opinion, the court reversed appellant’s DUI conviction on jury instruction/collateral estoppel grounds. Appellant was initially tried for driving under the influence of alcohol (“generic” DUI) and driving with blood alcohol of .08% or more (“per se” DUI). In the first trial jurors acquitted on per se DUI and hung on generic DUI. In a retrial of the generic DUI charge, the prosecution was permitted to introduce evidence appellant’s blood alcohol was .17% after his arrest, and jurors were given the standard instruction (CALCRIM No. 2110) that a finding defendant drove with blood alcohol of .08% or more creates a presumption the defendant was under the influence. The Court of Appeal reversed, holding that under principles of collateral estoppel the first jury’s acquittal on the per se (.08% or more) DUI charge: 1) precluded giving CALCRIM No. 2110, the .08% presumption instruction; and 2) required jurors be instructed to presume appellant’s blood alcohol was not .08% or more at the time he drove. The court, however, found the prosecution was permitted to reintroduce the evidence of appellant’s .17% blood alcohol after his arrest. (I) NFA

Pfeiffer, Rich — In re Abraham, D050029 — Parole
Habeas corpus granted after Board of Parole Hearings found petitioner unsuitable for parole. Court of Appeal found the key factor relied on by the Board, i.e., that the crime was “callous,” was inapplicable to petitioner, because he aided the crime but did join in the callous conduct committed by other perpetrators. The court remanded the case to the Board with an order to hold a new hearing and urged the Board to consider petitioner’s model behavior as a prisoner in determining whether he posed an unreasonable risk to the public. (I) NFA

Larson, Eric — People v. Baltazar, D050137 — Juvenile Strike Priors
Sentence reversed and matter remanded for re-sentencing where court enhanced defendant’s maximum sentence with a prior juvenile strike prior conducted without a jury trial as required by the Sixth Amendment to the United States Constitution. (I) PED

Blair-Loy, David — People v. Benavides, D050233 — Search and Seizure
Trial court erred in denying appellant’s motion to suppress evidence, where exigency ceased after appellant’s arrest and subsequent search of his living quarters, in a converted, detached garage was unreasonable. Appellant’s mother’s consent to search her house did not authorize the search of the garage, because mother had no apparent authority to consent to the search of that detached building. Error was prejudicial, because there was a question whether a pellet gun or a revolver was used, resulting from the significant discrepancy in the description of the implement. (I) CBM

Robinson, Warren — People v. Carignan, D050301 — Penal Code Section 654
Defendant was sentenced consecutively for assault and inflicting corporal injury on a cohabitant based on evidence appellant choked, punched, and kicked the victim in various rooms of her home. Court of Appeal held Penal Code section 654 required one of the counts be stayed because the evidence, taken together with the jury instructions and the prosecutor’s argument, presented a single, continuous criminal act, and the record did not establish jurors relied on discrete acts for the two counts. (I) NFA

Rudasill, Denise — People v. Lavalley, D050435 — Search and Seizure
Judgment reversed and case remanded to the trial court with directions to conduct a new hearing pursuant to Penal Code section 1538.5, subdivision (i) and to permit the defense to introduce evidence regarding the police radio recording which was not available to the defense when the suppression motion was heard and ruled upon. (I) BCT

Castillo, Irma — People v. Vega, E041953 — Three Strikes
Strike prior reversed because no evidence was presented appellant personally inflicted great bodily injury. (I) RBB

Blake, Christopher — In re Patrice S., D051341 — Juvenile Sentencing
Juvenile was committed to Department of Corrections and Rehabilitation, Division of Juvenile Justice (DJJ) for a maximum period of 3 years, 8 months and ordered to submit to AIDS testing pursuant to Health and Safety Code section 121060. The Court of Appeal reduced the maximum term to 3 years, 6 months to correct a calculation error. The court also remanded the case for the juvenile court to determine 1) whether probable cause supported the AIDS testing requirement, and 2) whether to exercise its discretion to recall the DJJ commitment pursuant to Welfare and Institutions Code section 733 and 733.1 (enacted after the minor’s commitment) on the ground the minor’s offenses were not among those listed in section 707, subdivision (b). (I) NFA

Evans, Suzanne (Father); Vogelmann, Monica (Mother); Trop, Neil (Minor) — In re Deisha G., D052100 — Indian Child Welfare Act (ICWA).
Judgment terminating parental rights is reversed and the juvenile court is directed to comply with the notice provisions of ICWA. If after proper notice and inquiry is made, a tribe does not intervene, the court shall reinstate the judgment. Here, notice was sent to the proper tribes, but contained incomplete information regarding the minors’ family history. The Agency had frequent and ongoing contact with paternal relatives who could have provided that information. Court found there was no evidence of reasonable inquiry or notice as required by ICWA. (I) LKH

Matsumoto, Ellen — People v. Hale, E039013 — Penal Code Section 654
Defendant was sentenced consecutively for kidnaping for rape and making a criminal threat based on evidence he said at the outset of the rape, "If you scream, I'll shoot you." The Court of Appeal found the sentencing court had failed to determine whether the kidnaping and the threat were committed with a single criminal intent, which would preclude separate punishment under Penal Code section 654. Remanded for the sentencing court to make this determination. (I) NFA

Boyce, Robert — People v. West, E041559 — Cunningham-Sandoval
Court of Appeal reversed upper term sentence for Cunningham error where it could not find the error was harmless. (I) NFA

Baugess, Susan (Aguirre); Owen, Thomas (Martinez) — People v. Aguirre et al., E041835 — Sufficiency of Evidence; Penal Code Section 654; Cunningham-Sandoval
Court of Appeal reduced grand theft to petty theft where there was insufficient evidence a stolen air compressor exceeded $400 in value. The court also stayed the sentence for vehicle taking pursuant to Penal Code section 654 where the vehicle was taken in a burglary for which appellant was separately sentenced. Finally, an upper term sentence was reversed and remanded for Cunningham error. (I) NFA

King, Nancy — People v. Tovar, E041954 — Sufficiency of Evidemce
Attorney General conceded and Court of Appeal agreed evidence was insufficient to support “one-strike” enhancements based on finding forcible sex offenses occurred during a first degree burglary. (Pen. Code, § 667.61, subd. ((e)(4).) Appellant committed the offenses against a hotel housekeeper in a room from which the last guest had checked out and which no new guest had booked. Accordingly, the room was not “inhabited.” The court reversed appellant’s sentence of 50 years to life and remanded for resentencing. (I) NFA

Olsen, Nancy — People v. Acosta, E042057 — Impermissible Dual Convictions
Defendant was wrongly convicted of both robbery and receiving stolen property based on the same property. (I) RBB

Bronson, Phillip — People v. Shepherd, E042231 — Penal Code Section 654
Attorney General conceded and Court of Appeal agreed that sentence for corporal injury to former cohabitant should have been stayed in case where sentence was imposed for burglary arising from single course of conduct. (I) JLP

Miller, Gerald — People v. Whitaker, E042630 — One-Strike Law Sentencing
Attorney General conceded and Court of Appeal agreed that trial court erred in imposing both an indeterminate term under Penal Code section 667.61 and a determinate term under Penal Code section 1170.1 for the same counts of conviction. Appellant was subject to the mandatory sentence under Penal Code section 667.61, subdivision (b) for both counts of conviction; he could not be sentenced additionally to determinate terms on each count. Determinate sentences for each count ordered stricken. (I) CBM

Lathrop, Stephen — People v. Ratcliffe, E042634 — Serious Felony Enhancement
Court of Appeal ordered one of the two serious felony five year priors stricken, because the two priors were not brought and tried separately. (I) LKH

Williams, Rex — People v. Figueroa, E042989 — Penal Code Section 654
Trial court erred by failing to stay either the driving under the influence of alcohol charge or driving with a blood-alcohol level of or exceeding .08% charge. Because each count carries the same sentencing range, court chose to stay the driving under the influence conviction. (I) CBM

Buckley, Stephen — In re Jose R., G038942 — Sufficiency of Evidence; Probation Conditions
True finding for street terrorism (Pen. Code, § 186.22, subd. (a)) reversed, because no evidence minor promoted or furthered any felonious conduct. Vague probation conditions prohibiting association with gang members and wearing gang clothing, jewelry, and insignia modified to add knowledge requirement. (I) DKR

Mack, Jennifer (MOther) — In re Danyale L., E043520 — ICWA
Order terminating parental rights is vacated, and the matter remanded to the juvenile court with directions to order compliance with the ICWA notice provisions. If, after proper inquiry and notice, no response is received from a tribe indicating the child is an Indian child, all previous findings and orders shall be reinstated. (I) LKH

Brooks, Philip (Appellant L. Gonzales) & Gilbert, Steven (Appellant R. Gonzales) – People v. Gonzales, et al., E044225 – Restitution Hearings
Court vacates the $19,763.98 restitution order where the order was made without providing either defendant with a hearing and notice of a hearing. Counsel for appellants had orally waived the client’s presence at any future restitution hearing. However, here, no notice was given to the appellants and no hearing was set. The court further found that a written waiver was required before the court could proceed without the defendants being personally present. (I) LKH

Tetreault, Nancy — People v. Hernandez, G038145 — Statute of Limitations
Attorney General conceded and Court of Appeal agreed that several convictions (counts 2, 3, 5, and 6) must be reversed, because the prosecution was untimely as it exceeded the statute of limitations of three years. (I) BCT

Stralla, Ava — People v. Gueras, G038305 — Penal Code Section 654
Although convictions of both burglary and receiving stolen property taken during the burglary are permissible, the sentence imposed for receiving stolen property should have been stayed per Penal Code section 654. (I) RBB

Klaif, Leonard — People v. Camacho, G038447 — Search and Seizure
Attorney General conceded and Court of Appeal agreed the trial court erred in denying appellant’s suppression motion based on mere knowledge of probationary status without knowledge of search condition and remanded for further proceeding on the issues of the legality of the detention and consent. (I) AMJ

Hinkle, Stephen — In re Nohl A., G038813 — Juvenile Sentencing
Trial court abused its discretion in failing to hold hearing to determine whether entry of judgment should be deferred. (I) RBB

Ballantine, Jean — People v. Novorr, G039196 — Probation Condition
Attorney General conceded and Court of Appeal agreed that probation condition not to associate with people disapproved by probation officer is unconstitutional for omitting a knowledge requirement. (I) JLP

Schorr, Steven — People v. Mito, D049921 — Prior Bad Acts Evidence
Conviction for committing a lewd act on a child reversed, where admission of a prior conviction for rape of a woman was erroneously allowed into evidence under Evidence Code sections 1101, subdivision (b) and 1108. Court of Appeal found the prior convictions were too dissimilar to the charged offenses and were inflammatory. (I) MCR

McKim, Joanna — People v. Munoz, D050426 — Sentence Modifications
The Court of Appeal, following Bracamonte (2003) 106 Cal.App.4th 704, modified the judgment by striking certain firearm and prison prior enhancements that the trial court had stayed. (I) APJ

Wilson, Sachi — People v. Olson, D050709 — Exclusion of Defense Evidence
Trial court improperly excluded appellant’s proffered evidence that he had received permission from an unidentified manager at Fry’s to take wooden pallets. Contrary to the trial court’s conclusion, the evidence was not hearsay; rather, it was an operative fact (see People v. Fields (1998) 61 Cal.App.4th 1063, 1068-1069) and presented a complete defense to the theft charge which would show the lack of any specific intent for the charged crime. (See, e.g., People v. Navarro (1979) 99 Cal.App.3d Supp. 1, 10-11.) The error was prejudicial under Chapman, because the pallets had been taken from an unlocked location and appellant immediately complied with the officers’ orders to stop, making no effort to evade them. (A) CBM

Hennessey, Patrick — People v. Hernandez, E042912 — Lesser Included Offense
Appellant argued, the People conceded, and the Court of Appeal agreed that since appellant had pleaded guilty to vehicular manslaughter without gross negligence while intoxicated, conviction of driving under the influence while causing an injury, a lesser included offense of the manslaughter, must be reversed. (I) HCC

Barry, Leslie (Minors) — In re William B., G039351 — Reunification Services; Writ of Supersedeas.
Counsel represented 10- and five-year-old minors challenging court’s grant of reunification services to mother. The removal of the minors had been the third removal from parents for drug use since 2001, amidst repeated attempts by parents to remain sober. The juvenile court relied on minors’ apparent love for their mother as the basis for more reunification services. Court of Appeal held the juvenile court, as part of its analysis of the best interest of the children, must find “some reasonable basis to conclude” reunification is possible before services can be offered when services need not be offered. (Welf. & Inst. Code, § 361.5, subd. (b).) Parents fell within the exception for history of extensive and chronic use of drugs or alcohol. (§ 361.5, subd. (b)(13).) Court reversed order providing mother with services, affirmed order denying father’s services, and ordered trial court to set a section 366.26 hearing “as soon as practicable.”
Attorney successfully filed writ of supersedeas to stay 12-month review hearing scheduled for the day after oral argument for the appeal. (I) LLF

Cannon, Gregory — People v. Arias, D051214 — Penal Code Section 654; Abstract of Judgment
Court of Appeal agreed with appellant that three sentences ordered concurrent must be stayed under Penal Code section 654 and that abstract of judgment reflecting a $720 security fee should be corrected to reflect a $320 security fee. (I) JLP

Braden, Julie — In re G.E., D052054 — ICWA
Mother claimed Indian heritage, and Agency, despite court order to do so, made no further inquiries of other relatives re: names of tribes or family members. Agency conceded and parties stipulated to an immediate issuance of the remittitur. Case reversed and remanded with directions to the agency to conduct an ICWA inquiry, to provide notice to the applicable Indian entities, and for the juvenile court to proceed in conformance with the ICWA. (I) LLF

Dodd, John — People v. Willis, E040684 — Sufficiency of Evidence
Appellant was convicted in four counts of robbery. The sole evidence connecting appellant to two of the robberies (of ATMs) was that co-defendant’s car was used in a number of robberies, including the two other robberies (of video stores) for which other evidence connected appellant. However, the similarities between the ATM and video store robberies was generic only, while there were several differences. Respondent argued that appellant’s denial of participation in any robbery at all was circumstantial evidence of guilt, but the Court of Appeal concluded such reasoning was speculative and reversed the ATM robberies for insufficient evidence. (I) HCC

Moller, Richard Jay — People v. Machuca, E041521 — Sentencing
Court of Appeal struck and made concurrent various enhancements to conform the sentence to the judgment pronounced at sentencing. The Attorney General conceded the errors. (I) NFA

McPartland, Michael B — People v. Delacruz, E043082 — Penal Code Section 667.61
Attorney General conceded and Court of Appeal agreed that trial court erred in imposing two concurrent life terms, rather than one life term, where two sex offenses were committed against same victim on same occasion. (I) JLP

Kording, Nicole (Father) and Pfeiffer, Rich (Mother) — In re Kenesha E., G039103 — ICWA
ICWA notice omitted too much information known to the social workers and necessary to give the tribes information to determine whether to intervene, to be deemed in substantial compliance with the ICWA law. Specifically, the notices omitted father’s place of birth and his and mother’s aliases and former addresses – information which appeared in the appellate record but not on the ICWA notices. Further, the notices contained no information about the paternal grandparents and great-grandparents or about the maternal grandparents, not even their names, from whom Indian ancestry was claimed.
Termination of parental rights reversed to allow proper notice under the ICWA. Although father raised this issue, reversal of termination of parental rights also applies to mother. (I) CBM

APRIL 2008

Milcetic, Maryann (Mother); Williams, Nicole (Father) — In re Valerie W., D051056 — Inadequate Assessment Report; Adoption. Published opinion. The adoptability assessment report was inadequate under the statute. The report did not include results of genetic and neurological testing results of one child who had significant medical issues and that undermined the basis for determination that the adoptive parent was capable of meeting the child’s needs. Also, the report merely assessed one of the caregivers, when the Agency intended to allow a joint adoption by a mother-daughter pair for which the trial court would need to address any legal impediment. (I) CAG

Jauregui, Anna — People v. German, E041100 — California Rehabilitation Center; Fines; Abstract of Judgment
Remanded because trial court abused its discretion in denying appellant's request for CRC, which was also contrary probation's recommendation for referral for possible commitment to CRC; for correction of the abstract of judgment to show that the second case is to run concurrent, not consecutive, and to reflect that the convictions in the first case were sustained by jury trial, not guilty plea; and for deletion of fines not verbally ordered by the trial court and for consideration of whether or not to impose fines. (S) AMJ

Crooks, Gary — People v. Jackson; D049784 — Cunningham-Sandoval
Matter remanded on the substance offense pursuant People v. Sandoval; and also remanded for resentencing on the firearm enhancement (see People v. Lincoln). (I) LAR

Buckley, Stephen — In re Gabriel R., D050705 — Sufficiency of Evidence
True finding minor carried a concealed firearm within a vehicle under his control reversed because minor did not control the vehicle; three other true findings reversed because there was insufficient evidence the minor knowingly carried or possessed a firearm or ammunition. (I) RBB

Hernandez, Michael — People v. Reyes, D051597 — Search and Seizure.
Court of Appeal found that roving border patrol stop was without reasonable suspicion when the only identifying information from an anonymous driver was that he saw two individuals run from behind a bush toward a U-Haul truck stopped on the side of the freeway. (A) LLF

Gold, Neale — In re Kailey M., D051796 — Visitation Orders
Court partially reversed visitation orders that were unclear as to whether visits between father and daughter were to be supervised or unsupervised. (A) ACS

McPartland, Michael — People v. Wooten, E040555 — Abstract of Judgment
Abstract of judgment is corrected to reflect the oral pronouncement. Court of Appeal orders an amended abstract be filed reflecting appellant’s stayed sentence on count 2. (I) LKH

Cava, Dennis — People v. DeWitt, E042548 — Penal Code Section 1202.5 Fine
Because appellant was convicted of only attempted robbery, which is not a crime enumerated under Penal Code section 1202.5, the fine ordered pursuant to that section, as well as its attendant penalties, constituted an unauthorized order; fine stricken. (I) CBM

Ward, Paul — People v. Arnold, E041257 — Penal Code Section 654
Sentence for criminal threats stayed under Penal Code section 654, as it was based on same threats as appellant's conviction for dissuading a witness.
(I) MCR

Klaif, Leonard — People v. Lopez, E041414 — Serious Bodily Injury Enhancement
Court of Appeal found insufficient evidence appellant personally inflicted great bodily injury for enhancement to apply in group beating situation with only vague testimony that appellant was part of group. (I) JLP

McPartland, Michael — People v. Sanchez, E041694 — Custidy Credits; Sentencing
Judgment ordered modified to reflect additional presentence custody and conduct credits to which defendant was entitled and to correct the imposition of a seven-year minimum term. (I) AMJ

Tetreault, Nancy — People v. Pacheco, E042269 — Penal Code Section 654
Court of Appeal stayed the life term for the false imprisonment conviction because it was committed to facilitate the sexual assault. (I) BCT

Flenniken, William, Jr — People v. Moore, E042424 — Custody Credits
Because attempted robbery is not a violent felony under Penal Code section 2933.1, limiting credits to 15% was erroneous, and section 4019 credits applied. (I) LAR

Ting, Allison — People v. Martinez, E042427 — Forgery; Probation Conditions.
In opinion certified for partial publication, Court of Appeal reversed a second conviction for forgery, holding only one conviction proper for one forged instrument with two signatures. In unpublished portion, court modified several probation conditions, i.e., (1) carrying probation conditions and providing to police [modified to only keep available and offer to known officer in course of duties], (2) advising future employers of conviction [modified for duration of probation and before employment], and (3) avoiding access to similar documents [modified only to trust deeds]. (I) LLF

Staley, John — People v. Jones, E043355 — Abstract of Judgment
Abstract of judgement corrected to properly reflect sentence in one case to be served concurrently with sentence in other case. (I) LAR

DeVito, Cara — People v. Alcantar, E042602 — Abstract of Judgment
Attorney General conceded and Court of Appeal agreed that the abstract of judgment erred in its indication the enhancement associated with the principal count was stayed rather than stricken. Correction ordered. (I) CBM

Moller, Richard — People v. Peter Gallegos, E042639 — Abstract of Judgment.
Court of Appeal ordered the abstract of judgment corrected to delete reference to a 25 years- to-life term for the Penal Code section 667.61, subdivisions (a) and (d) priors.
(I) LKH

Wrubel, Sharon — People v. Cross, E042897 — Sentencing
Remanded so court can consciously exercise its discretion pursuant to Penal Code section 69 to dtermine whether to run case consecutively or concurrently to defendant’s prior case. (I) PED

Capriola, William — In re Lee M., E043041 — Probation Conditions
Attorney General conceded and Court of Appeal agree that terms of probation involving association with certain people must be modified so that “known” is replaced with “he knows” to ensure that appellant knows the status of the people with whom he is not supposed to associate. (I) APJ

Flenniken, William — People v. Villa, E043134 — Penal Code Section 654
Trial court erred in imposing a concurrent term for assault by means likely to cause great bodily injury (count 1). The term is ordered stayed pursuant to section 654 as appellant’s intent and objective in committing the assault was the same when he committed battery with serious bodily injury (count 2). (I) LKH

Buckley, Christian — People v. Simms, E043488 — Three Strikes
Attorney General conceded and Court of Appeal agreed that trial court misunderstood its discretion when it denied appellant’s request to strike his strikes and that remand for new sentencing hearing was necessary. (I) DKR

Ballantine, Jean — People v. Hector, E043613 — Penal Code Section 654.
Court of Appeal held section 654 applied when appellant pleaded guilty to possession of a firearm by a felon and possession of a short-barreled shotgun when appellant possessed only one weapon. The court agreed that conviction for both counts was proper, but the sentence on the second count must be stayed, because possession of the same weapon constituted a single act. (I) LLF

Lee, Konrad — In re R.M., E043650 — Indian Child Welfare Act (ICWA)
The court conditionally reversed the order terminating parental rights and remanded on a limited basis for the Department to comply with proper notice requirements of the ICWA. (I) BCT

Kording, Niccol — In re Angel C., E043656 — ICWA
Court of Appeal reversed for failure to provide adequate notice pursuant to (ICWA. Agency failed to ask maternal grandmother about birthplaces of likely relatives with Indian heritage, i.e., maternal grandfather and great-grandparents. Court rejected County Counsel's argument that the agency substantially complied with notice and rejected its harmless error argument, stating it was based on speculation. (I) LLF

Riggs, Brent (Mother) – In re Daemon L., E043735 – ICWA.
Order terminating parental rights is reversed, and matter is remanded to the juvenile court for compliance with ICWA. (I) LKH

Williams, Nicole — In re Monique T., E044366 — ICWA
County Counsel conceded and Court of Appeal agreed with limited remand to trial court to confirm compliance with notice requirements of the ICWA. If children are not Indian children, trial court will reinstate termination of parental rights. (I) LLF

Schaefer, Laura — People v. Clancy, G036667 — Sufficiency of Evidence
Child sexual molestation count reversed, because minor’s testimony insufficient to support conviction. (I) DKR

Schuck, John — People v. Nesbitt, G039369 — Restitution Fines
Attorney General conceded and Court of Appeal agreed that trial court improperly imposed a second restitution fine of $200 pursuant to Penal Code section 1202.4 following a probation violation hearing after already imposing same fine at sentencing. Abstract to be amended to show only one restitution fine. (I) LLF

Beckham, Sylvia — People v. Grajeda, G038185 — Probation Violation
Appellant was sentenced to a term of 13 years after he violated probation. The trial court stated it had no option since the 13-year term had been previously imposed with execution suspended. The Court of Appeal held the trial court failed to exercise its discretion because it had the option of reinstating probation. The Court of Appeal ordered the case remanded for a new sentencing hearing at which the trial court must (1) order, obtain, and review a probation report, and (2) exercise its discretion in making a sentencing choice. After remand, if the trial court orders the previously suspended 13-year sentence executed, then appellant shall be entitled to credit for all time spent in the Delancey Street program. (I) BCT

Ward, John — People v. Tenorio, G038234 — Jury Trial Waiver
Attorney General conceded and Court of Appeal agreed that trial court erred by failing to take appellant’s personal waiver of his right to a jury trial before it proceeded to hear the evidence and determine appellant’s guilt. Judgment reversed and case remanded for retrial. (I) CBM

Bronson, Phillip — People v. Yorba, G038293 — Probation Conditions
Court of Appeal directed the trial court to modify two probation conditions to include the following italics language: "do not be present in any establishment where you know or reasonably should know the primary items for sale are alcoholic beverages" and "do not associate with anyone you know or reasonably should know is disapproved of by your Probation Officer." (I) LLF

Rollo, Sharon — In re Elizabeth M., G038729 — Visitation
Court of Appeal reversed a termination of jurisdiction judgment containing an order reducing father's visitation for which father had no notice and for which no supporting evidence for the reduction had been presented. (I) CAG

Buckley, Stephen — People v. Gonzalez, G038635 — Lesser Included Offense
Defendant’s conviction for street terrorism (Pen. Code, § 186.22, subd. (a)) reversed because it is a lesser included offense of carrying a loaded firearm in public while being an active gang member (Pen. Code § 12031, subd. (a)(1), (2)(C).) (I) MCR

MARCH 2008

Scott, Patricia — People v. Monroe, D048740 – Penal Code Section 654
Concurrent sentences for assault with intent to commit oral copulation and assault with intent to commit rape could not be imposed where the defendant was also sentenced for the completed acts. (I) RBB

Wrubel, Sharon — People v. Webb, D049792 — Parole Revocation Fine.
Parole revocation fine stricken as an ex post facto violation when the authorizing statute’s enactment (1995) post-dates the 1989 offense. (I) APJ

Brisbois, Patricia — People v. Hernandez, D050152 — Impeachment
In case involving possession for sale and transportation of methamphetamine, trial court prejudicially erred in refusing to sanitize defendant’s conviction for possession of heroin for sale. (I) RBB

Vandeveld, Darrell — In re Irwin G., D050549 — Multiplicious Offenses; Felony Determination
Wardship order set aside and matter remanded to juvenile court with directions to (1) strike the true finding on the receiving a stolen vehicle count where the juvenile was also convicted of driving or taking a vehicle; (2) recalculate the minor's maximum potential term if warranted; and (3) designate whether the vehicle theft offense is a felony or a misdemeanor. (A) PED

Bostwick, James — People v. Lynch, D050756 — Sentencing
Case remanded to the trial court for re-sentencing where the court failed to properly pronounce sentence. (I) LKH.

Benedict, Amanda (minor’s counsel); Hook, William (mother’s counsel); Vogleman, Monica (father’s counsel) — In re Jon H., D051326 — Dependency Stipulated Reversal.
In 2000, the San Diego County juvenile dependence court appointed a guardian for the minor Jon. In 2001 it terminated jurisdiction. In 2006 Jon became a ward of the San Diego County juvenile delinquency court; the dependency court vacated the guardianship order, appointed new guardians, and terminated jurisdiction. Jon’s delinquency case was transferred to Riverside County where the new guardians reside. In 2007, biological parents filed a Welfare and Institutions Code section 388 petition in the dependency court seeking removal from the new guardians’ home and placement with mother. The court summarily denied the petition. The parents appealed. During the course of this appeal, the minor ran away and came to the office of minor’s counsel, Amanda Benedict. Ms. Benedict filed a minor’s letter brief indicating the minor’s deteriorating mental health and the need for court intervention. The parties then filed a stipulated reversal with directions to vacate the order denying the section 388 petition and transfer the case to Riverside County. The Court of Appeal accepted the stipulation. (I) LAR

Lampkin, David — People v. Garcia, E040647 — Penal Code Section 654
Court of Appeal ordered a stay of sentence on two counts which the trial court had ordered to run concurrent. All offenses were committed in the course of a single struggle with police officer. (I) APJ

Torres, Tonja — People v. Garcia, E041261 — Sentencing
Appellant was convicted of three new serious felonies and admitted he had previously suffered a prior serious felony conviction. The trial court correctly imposed three five-year terms (one for each new serious felony prior), but erred in imposing a fourth 5-year term which was not tied to any new particular count. (I) LKH

Scott, Patricia — People v. Ponce, E041285 — Sentencing
Remanded for resentencing in this sexual assault case. The trial court erred in selecting count 2 as the principal count and in imposing the upper term on that count. It also erred in imposing full, consecutive terms on counts 5 to 8, because it is not clear what sentencing scheme the court relied on (Pen. Code, § 667.6 or § 1170.1) and whether the court perceived the consecutive sentences as being discretionary or mandatory. (I) AMJ

Staley, John — People v. Singh, E041484 — Suppression of Evidence (Pen. Code, § 1538.5)
Court of Appeal agreed with appellant that the trial court erred in denying his motion to suppress evidence and the error was prejudicial. Charged with being a felon in possession of a firearm, appellant had moved to suppress the gun found in his parents’ garage. The trial court denied the motion based on a finding appellant lacked standing. The court also found that there was sufficient justification for the warrantless search. The Court of Appeal rejected both findings and also determined that the admission of the gun was not harmless beyond a reasonable doubt, despite fact that eyewitnesses testified to seeing appellant with a gun. (I) APJ.

Bernstein, David — In re Christopher R., E041979L — Juvenile Disposition
Attorney General conceded, and Court of Appeal agreed, that the lifetime sex offender registration provision of Penal Code section 290 was inapplicable to minor. A non-forcible oral copulation of a person under 18 was found true. The court agreed with minor that the mandatory provision of the registration statute (Pen. Code, § 290, subd. (b)(1)) is inapplicable to the offense of non-forcible oral copulation, and that the discretionary provision of the statute (Pen. Code, § 290, subd. (a)(2)(E)), while applicable to non-forcible oral copulation, is inapplicable to juvenile offenders. Accordingly, minor’s registration requirement was reversed. (A) NFA

McPartland, Michael — People v. Dixon, E042428 — Sentencing
Court of Appeal and People agreed that trial court erred in imposing a term for personal use of a firearm enhancement under Penal Code section 12022.53, attached to the spousal rape conviction, because the court used that circumstance to sentence defendant under the "One Strike" alternative sentencing provisions. (I) AMJ

Ward, Paul — In re Joe C., E043949 — Probation Conditions
Probation terms forbidding association with “known” narcotics users and “known” parolees, probationers, and gang members modified to specify that they be known as such to the juvenile (i.e., addition of scienter element); term requiring physician to give written notice to probation officer before prescribing controlled substance modified to require minor to give notice to probation officer within a reasonable time following the presecription; term requiring parents to attend parenting program modified to require joint participation of minor with parents in such program. (I) RBB

Rehm, Linda — In re Sydney P., E043954 — Indian Child Welfare Act (ICWA)
Reversal for failure to adequately inquire and give notice under ICWA. Mother was raising inadequate inquiry/notice of the father who did not appeal. Therefore, the Rebecca R. decision was distinguishable. (I) ACS

Erickson, Kristin — People v. Moon, G037729 — Cunningham
Upper term sentence reversed and remanded, because the judge made his own factual finding to support the upper term. (I) MCR

Stanton, Marta — People v. Bell, G038222 — Sentencing
Trial court erred when it ordered four of the prison priors to "run concurrent" with the sentence. Court of Appeal ordered the priors to be stricken. (A) LAR

Mack, Jennifer — In re Paulina D., G038886 — Dependency Disposition Court reversed, finding that the evidence was insufficient to support removal of mother’s four youngest children from her custody. (I) ACS

Williams, Nicole — In re Leonard G., E044289 — Termination of Parental Rights
Both appellate counsel for respondent stepfather and the minor agreed that trial court erred by numerous due process violations of the rights of the biological father. (I)(ACS)

FEBRUARY 2008

Kraft, Rudy — People v. Hubbs, D048607 — Sexually Violent Predator (S.V.P.) Proceedings; Ineffective Assistance of Counsel
S.V.P. commitment reversed because trial counsel’s failure to obtain an expert denied appellant his right to present a defense based on expert witness testimony. (I) RBB

Fabian, Carl — People v. Morreo, D048690 — Three Strikes Sentencing
Sentence reversed and matter remanded where the trial court's comments, in the context of the overall sentencing record, indicated that it did not understand that it possessed discretion to choose among the lower, middle, and upper terms on a carjacking offense, and was not required “by reason of the two-strike prior allegations having been found true” to impose an upper term, in determining proper Three Strikes sentence. (I) HCC

Frizzel, Doris — People v. Lopez, D049356 — Lesser Included Offense Attorney General and Court of Appeal agreed that the conviction of false imprisonment in count 11 must be stricken, because it is a lesser included offense of the kidnapping conviction, and the corresponding enhancements must also be stricken. (I) AMJ

O'Laughlin, Shawn — People v. Lewis, D050765 — Prison Prior
Attorney General and Court of Appeal agreed that stay of prior was in error and that the superior court intended to strike. Judgment modified to strike the prison prior. (I) AMJ

Willis Newton, Joanne — In re. Julia S., D050982 — Indian Child Welfare Act (ICWA).
Court reverses judgment declaring child free from father’s custody and control (Fam. Code, § 7822) for ICWA inquiry and notice, where trial court made no inquiry whether child was Indian child and where appellate counsel provided declaration suggesting Indian heritage. (I) JLP

Pfeiffer, Richard — In re Vasquez, D051055 — Parole
Petitioner had been convicted of second degree murder. The Governor had reversed a decision by the Board of Parole Hearings finding him suitable for release on parole, when the Governor had found premeditation. In a 2-1 decision, the appellate court concluded there was no evidence to support the Governor’s ultimate conclusion that petitioner was unsuitable for parole because he currently posed an unreasonable risk to public safety and therefore grant the requested relief. (I) HCC

Cannon, Gregory — People v. Griffin, D051138 — Direct Victim Restitution
Attorney General conceded and Court of Appeal agreed that the trial court erred in imposing direct victim restitution award for the “stolen” telephone, where appellant pleaded guilty to falsely reporting placement of a bomb and falsely reporting an emergency. Because the owner of the telephone was not a direct victim of the crimes admitted, the court’s order was improper. Direct victim restitution award is stricken. (I) CBM

Braden, Julie — In re Joseph A., D051151 — Mootness
Agency appealed order arguing that court erred by continuing jurisdiction after child was placed in Louisiana and Louisiana refused to monitor case. Court of Appeal dismissed based on mootness, because trial court subsequently terminated jurisdiction. (I) LLF

Jones, Sharon — People v. Turner, E041114 — Prior Serious Felony
Attorney General conceded and Court of Appeal agreed appellant’s two prior serious felony convictions stemmed from single criminal proceeding and were not “brought and tried separately.” Court struck one of the five-year enhancements. (I) LLF

Shorago, Alisa — People v. Boyd, E041446 — Custody Credits
Attorney General conceded and Court of Appeal agreed that trial court erred in denying appellant all presentence custody credits due to his murder conviction. Penal Code section 190, subdivision (e) only limits a defendant’s post-sentencing, not presentencing, credits. And, while section 2933.2 prohibits receipt of work or conduct credits, appellant is still entitled to actual presentence custody credits under Penal Code section 2900.5. (I) CBM

Popper, Jamie — People v. Williams, E041851 — Marsden; Penal Code Section 654
Judgment reversed for post-trial Marsden hearing, where defendant wrote letter to court asking for new trial and then made specific claims challenging attorney’s representation at sentencing hearing, but where court did not hold Marsden hearing. Also, 16-month consecutive term for making false bomb threat ordered stayed pursuant to Penal Code section 654, where defendant also was sentenced for a criminal threat 422 based on single statement. (S) JLP

Ballantine, Jean — People v. Mendoza, E042899 — Dual Convictions; Jury Trail Waiver
Appellant was convicted of first degree burglary (Pen. Code, §§ 460/459 [count 1]), petty theft with a prior (§§ 666/484 [count 2]), and receiving stolen property (Pen. Code, § 496 [count 3].) After a bifurcated bench trial, the trial court found true the gang allegations attached to all three counts, and the strike prior allegation. The Court of Appeal reversed the receiving stolen property conviction finding the theft and receipt (counts 2 & 3) involved the same property. The court further reversed the true findings on the gang allegations, because there was no express waiver of the jury trial. The remand includes instructions to strike the gang allegations and modify the sentence. Finally, the court corrected the sentence on count 1 to reflect four years in state prison. The trial court stated that it was imposing the middle term, but calculated it as 8 years, rather than four years. (I) LKH

Rollo, Sharon — In re M.M., E043519 — ICWA
The Court of Appeal accepted the parties' proposed stipulation for reversal with directions in this second appeal based on failure to comply with ICWA. (I) APJ

Wass, Valerie — People v. Reilly, G037401 — Sufficiency of Evidence
Conviction for grand theft by employee (Pen. Code, § 487, subd. (b)(3)) reversed, where the was no substantial evidence defendant was still employed by company at the time of the theft. (I) MCR

Wass, Valerie — People v. Acosta, G037655 — Sufficiency of Evidence
Court found the evidence insufficient on count 2, transportation of methamphetamine. Appellant was a passenger in a parked car where drugs were discovered, but the officers did not observe the car moving, i.e., no movement of the drugs. In addition, the drugs found in the lining of appellant's jacket did not support the transportation charge, because there was no evidence that appellant had moved the drugs located in his jacket from one place to another. (I) BCT

Khoury, Charles — People v. Huerta, G037696 — Multiplicious Offenses
Appellant was convicted of numerous offenses including multiple counts of kidnapping. Appellant argued, the Attorney General conceded, and the court agreed that because there was a single incident and a single victim, there was only one count of kidnapping. (I) HCC

Jog, Anita — People v. Pham, G037843 — Penal Code Section 654
The case was remanded for re-sentencing in accordance with Penal Code section 654 in this two-strike case where the trial court erred in believing Penal Code section 667 precluded application of Penal Code section 654. The Court of Appeal ordered that at least one of the consecutive sentences must be stayed. (S) APJ

Bauguess, Susan — People. V. Delgado, G037932 — Plea Bargain Defendant’s sentence ordered reduced by two years, where trial court imposed a sentence on two prior prison term enhancements in violation of defendant’s plea agreement. (I) PED

White, Catherine — People v. Nguyen, G037940 — Severance
The Court of Appeal agreed with appellant’s arguments that the two counts in this case, simple possession of cocaine and misdemeanor assault, were not from the same class of crimes and were not connected in their commission. The Court of Appeal also found that the evidence of each offense was not cross-admissible. The Court of Appeal accordingly found that the trial court erred in denying a motion to sever the charges. While the Court of Appeal did not deem the failure to be prejudicial to the convictions, it did find that the mis-joined charges resulted in appellant being unfairly deemed ineligible for Proposition 36 treatment. The case has been remanded for severance of the charges and consideration of a Proposition 36 disposition. (I)/APJ

O'Laughlin, Shawn and Staley, John — People v. Graham and Graham, G038342 — Penal Code Section 654
Term for second degree burglary ordered stayed when the burglary ripened into an Estes robbery for which the principal term was imposed. (I) HCC

Rehm, Linda — In re Brenda M., G038857 — Self-Incrimination
Father invoked Fifth Amendment right against self-incrimination at the jurisdiction-disposition hearing. Court found father could not invoke right because Welfare and Institution Code section 355.1, subdivision (f), provided adequate protection. When father refused to testify, court imposed sanction precluding father from presenting any evidence or cross-examining any witness. Court of Appeal reversed jurisdiction order and remanded the matter to the trial court. (I) LLF

JANUARY 2008

Cilli, Gregory — People v. Roberts, D048212 — Sentencing
Attorney General conceded and Court of Appeal agreed the trial court erred in imposing on appellant a 10-year no-contact order as to the victim, because it was not authorized by Penal Code section 136.2. (I) BCT

Martin, Arthur — People v. Rodriguez, D049261 — Lesser Included Offenses
Carjacking conviction reversed as a lesser included offense of kidnapping for carjacking; false imprisonment conviction reversed as a lesser included offense of kidnapping. (I) RBB

Mazur, Janice — People v. Knight, D049481 — Sufficiency of Evidence
Reversal of true finding on Penal Code section 12025, subdivision (b)(2), because insufficient evidence appellant knew gun was stolen. Reversal made felony count a misdemeanor. (I) CMS

Dain, Anthony — People v. Ford, D050147 — Sentencing
Appellant's 10 year sentence for the gang enhancement is vacated, and a 15 year minimum parole eligibility term imposed under Penal Code section 186.22, subdivision (b)(5). In addition, the direct victim restitution order is modified to be joint and severable with defendants, and a corrected abstract of judgment is ordered. (I) LKH

Marshall, Gregory — People v. Contreras, D050395 — Blakeley/Cunningham
Court of Appeal reversed upper term sentence on Blakeley/Cunningham grounds and remanded for resentencing. (I) NFA

Riggs, Brent — In re R. B., D050749 — Indian Child Welfare Act (ICWA); Standing
The Court of Appeal reversed an appeal brought by the mother, rejecting the Health and Human Services Agency’s arguments that 1) mother had no standing to appeal the lack of inquiry into father’s American Indian heritage, 2) mother forfeited the issue, 3) it was harmless error (father’s African American heritage did not negate the necessity for inquiry), 4) standard of review was substantial evidence (whether the court performed a mandatory duty is reviewed under abuse of discretion), and 5) reasonable inference could be made from social worker's reports that inquiry was made (clear from evidence that the ICWA findings in report dated back to those made on behalf of mother as father had not appeared yet). (A) CAG

Staley, John — In re William G. III, D050950 – Maximum Period of Confinement & Probation Condition
Court of Appeal ordered remand for trial court to add knowledge requirement into probation condition prohibiting unsupervised association with minors under 12 and to delete maximum period of confinement from minute order, because maximum period should not have been set where minor was placed on probation without removal from the home. (I) JLP

Levy, Richard — People v. Barajas, E039512 — Homicide Instructions
Two counts of first degree murder, as well as multiple murder and burglary murder special circumstances, reversed because the trial court neglected its sua sponte duty to instruct on the merger doctrine, according to which a burglary based solely on an intent to kill or feloniously assault cannot support burglary felony murder or a burglary-murder special circumstance. (I) RBB

Christiansen, Mark — People v. Noriega, E040123 — Right to Counsel
In a published case, where the trial court disqualified appellant’s public defender and the entire public defender’s office based on a perceived conflict involving a past client who could be a witness, the trial court abused its discretion in removing the public defender and the office over appellant’s objection and his proffered waiver of any conflict and without taking any less drastic option, the removal violated appellant’s right to counsel under the state Constitution, and the error was reversible per se. (I) HCC

Lathrop, Stephen (appellant Guevara), Dodd, John (appellant Martinez) — People v. Martinez & Guevara, E040764 — Sentencing
Appellants’ sentences for attempted murder on count 1 modified to indeterminate life terms, subject to the minimum parole eligibility in Penal Code section 3046, subdivision (a)(1), plus 20 years for the gun enhancement. The additional 15-year consecutive sentences for the gang enhancement allegations in count 1 are stricken. (I) HCC

Miller, Gerald — People v. Santos, E041713 — Enhancements; Sentencing
1) Great bodily injury enhancement reversed because injury was “extremely trivial”; 2) court cited unacceptable factors in imposing an upper term. (I) RBB

Bronson, Phillip — People v. January, E041905 — Prior Prison Term
Appellant argued, Attorney General conceded, and the court agreed and stayed imposition of a one-year enhancement for a prior prison term (§ 667.5, subd. (b)), which was improperly imposed, because the same conviction for which he received the prison term was used as the basis for a five-year enhancement under section 667, subdivision (a)(1). (People v. Jones (1993) 5 Cal.4th 1142.) (I) HCC

McKim, Joanna — People v. Johnwell, E014853 — Sentencing
Multiple sentencing errors and errors related to findings on enhancements and priors corrected. (I) PED

Duxbury, Brett — People v. Leach, E042178 — Out of State Strike Prior
Attorney General conceded and Court of Appeal agreed that there was insufficient evidence that Louisiana prior robbery conviction was a Strike prior under California law. (I) JLP

Lee, Konrad (father); Milcetic, Maryann (mother); Barry, Leslie (mother) — In re Maria R., E042969 — ICWA
Order terminating parental rights is reversed and remanded for the limited purpose of determining whether ICWA applies. (I) PED

Kross, Jeffrey — People v. Ochoa, E043376 — Sentencing.
Attorney General conceded and Court of Appeal agreed: (1) the trial court erred in imposing a $1,600 restitution fine at sentencing, rather than the $800 restitution fine imposed when appellant was originally granted probation, and (2) imposition of the $1,600 fine pursuant to Penal Code section 1202.44 violates ex post facto where the underlying offense occurred prior to the statute’s enactment. In addition, the appellate court ordered the abstract of judgment corrected to include appellant’s pre-sentence custody credits. (I) LKH

Williams, Rex — People v. Castro, E043385 — Probation Condition
Court erred in imposing a probation condition which required the appellant to obtain a credit report for the Social Security number that he admitted fraudulently using. (I) LAR

Klein, S. Lynne (father), Chirco, Donna (mother) — In re Gabriella M., E043609 — ICWA
Where no certified mail receipts or any responses from the Bureau of Indian Affairs (BIA) and the Blackfeet Tribe were filed with the juvenile court as to two of the subject minors and BIA requested more information as to a third minor, the Department did not adequately comply with the notice requirements of ICWA as to the first two minors; further, notice as to the third minor, while sent to BIA, was not sent to the tribe. Also, the juvenile court made its determination that ICWA did not apply in less than the required minimum 60 days from the date notice was sent. However, here, only a conditional remand was ordered to ensure compliance. (I) HCC

Popper, Jamie — People v. Scarpinato, G036776 — Prison Prior; Ability to Pay
Court of Appeal reversed prison prior due to insufficient evidence, where trial counsel and trial court stated on record prison prior issue was resolved, but where appellant had only admitted he had a different prior from the same case and where evidence had not been presented that he served a prison term. Court also reversed order that appellant pay cost of probation report because of a denial of a hearing regarding the ability to pay, where counsel requested a finding appellant was unable to pay and the court responded by stating appellant was able to pay because he could work in prison. (S)

McGill, Martha — People v. Crissinger, G038031 — Sentencing (Sex Offenses)
Although the evidence in this case was more than sufficient to support a verdict appellant had engaged in lewd acts against each of his sons on numerous separate occasions within the time periods charged in counts 1 through 3 (the elder son) and 6 through 8 (the younger son), it is equally sufficient to support the conclusion that he engaged in two separate counts of lewd acts against his elder son on any one occasion, and that he engaged in three separate counts of lewd acts against his younger son on any one occasion. Consequently, it was impossible to discern whether the jury found appellant guilty of committing lewd acts against his elder son on more than two separate occasions in counts 1 through 3, or whether it found him guilty of committing lewd acts against his younger son on more than one occasion in counts 6 through 8. Therefore, the trial court erred in simply assuming, for purposes of sentencing, that the jury reached the former conclusion, i.e., separate occasions. Based on the language of former Penal Code section 667.61, the appellate court ordered remand for resentencing on those counts. (I) HCC

Pfeiffer, Rich — In re Jai C., G038913 – Presumed Father/Reunification Services
Reversal of termination of presumed father’s parental rights based on failure to provide him with reunification services. Juvenile court ordered to consider whether return of child to father would be detrimental and, if so, order the agency to develop a case plan and provide services to father. (I) ACS

DECEMBER 2007

Kassman, Martin — People v. Ramirez, D049922 — Unlawful Search
Order denying Penal Code section 1538.5 motion reversed, because the pat down search and detention resulting from it were not supported by objectively reasonable suspicion on the officer’s part. (I) PED/DLN

Well, Mary Woodward — People v. Gelashvili, D047844 — Black II/Sandoval
Upper term sentences reversed. Trial court had imposed the upper term based upon five aggravating factors and one mitigating factor. Only one aggravating factor was admitted by appellant. Hence, case remanded for the trial court to consider appropriate term. (I) LAR

Schaefer, Laura — People v. Hernandez, D048004 — Penal Code Section 654; Improper Enhancement
Court of Appeal ordered Penal Code section 12022.5, subdivision (a) enhancement stricken, because trial court incorrectly stayed the enhancement after imposing enhancement pursuant to Penal Code section 12022.53, subdivision (b). In addition, the Court of Appeal ordered the consecutive sentence for appellant’s criminal threats conviction stayed pursuant to Penal Code section 654, because the threat was made to facilitate the kidnaping, for which appellant received a separate sentence. (I) DKR

Burz, Dacia — People v. Saddler, D048364 — Blakely/Cunningham
Where the only factor cited by the trial court for imposing the upper term on the great bodily injury enhancement was improper (severity of the injury imposed) under Cunningham, remanded for resentencing. (I) MCR

Blake, Christopher — People v. Newline, D049262 — Sentencing
Appellant argued, respondent conceded, and the Court of Appeal agreed that because five years had elapsed between prison release and date of offense and the record contained no evidence of any excepting circumstance, one-year prior prison term enhancement (Pen. Code, § 667.5, subd. (b)) was erroneous. (I) HCC

Wilson, Sachi — People v. Hall, D049364 — Penal Code Section 654
Appellant was convicted and sentenced for assault with a deadly weapon on an officer (count 1, Pen. Code, § 245, subd. (c)), resisting an executive officer (count 2, Pen. Code, § 29) and battery on a peace officer (count 3, Pen. Code, § 243, subd. (c)(2)). The Court of Appeal ordered his sentence on counts 2 and 3 stayed, since the crimes arose formed one indivisible course of conduct. (A) LKH

Stralla, Ava — People v. Lawson, D049409 — Compulsory Process
Trial court erred when it refused to grant short continuance to allow appellant’s ex-wife, who was under subpoena but unavailable because she was in the hospital giving birth, to testify on his behalf. (I) RBB

Lampkin, David — People v. Zacarias, D049593 — Conspiracy
In this published decision, the Court of Appeal reversed appellant’s convictions for kidnaping for financial gain, because the trial court instructed the jury on an erroneous theory of liability. Specifically, the jury was instructed that appellant could be liable for the kidnaping if the jury found that he conspired to commit the federal crime of alien smuggling and the kidnaping was a natural and probable consequence. The Court of Appeal found the instruction erroneous, because conspiracy applies only where the parties conspire to commit a crime which would violate California law. (I) LKH

Scott, Patricia — People v. Johnson, D050190 — Restitution
Attorney General conceded and Court of Appeal agreed that restitution fines must be stricken, because they were calculated based upon statutes which were not in effect at the time of the 1978 murder. Matter remanded for imposition of restitution fines based upon laws then in effect. (I) APJ

Koryn, Sylvia — People v. Arenas, D050417 — Sentencing
Appellant contended, respondent conceded, and the court agreed the trial court erroneously sentenced appellant to two (rather than one) five-year prior serious felony conviction enhancements (Pen. Code, § 667, subd. (a)(1)), because his two prior serious felony convictions were not brought and tried separately. Additionally, the abstract of judgment erroneously referred to four (rather than three) one-year prior prison term enhancements, because only three such enhancements were charged and found true by the jury. (Pen. Code, § 667.5, subd. (b).) (I) HCC

Blake, Christopher — In re D.J., D050668 — Insufficient Evidence
Court of Appeal agreed there was insufficient evidence to support the finding on the residential burglary, and the trial court erred in denying the Welfare and Institutions Code section 701.1 motion. Reversed with order to dismiss the petition. (I) APJ

Barry, Leslie — In re V.F., D050824 — Dependency Disposition
Published reversal. Juvenile court erred in using incorrect statute to remove children from an incarcerated parent. Correct statute was Welfare and Institutions Code section 361.2, not section 361, subdivision (c)(1). Under section 361.2, subdivision (a), court must determine whether placement with that parent would be detrimental to child. Here court would not imply that detriment and remanded the case for proper findings under section 361.2, subdivision (a). (I) ACS

Fabian, Linda — In re Antonio G., D051079 — Dependency; Relative Placement
Order denying grandmother’s relative placement request reversed, where agency failed to evaluate grandmother’s home (because children were previously removed from this home) and juvenile court failed to consider relative placement criteria under Welfare and Institutions Code section 361.3. Court of Appeal agreed that children’s prior removal from grandmother did not demonstrate she was an unsuitable caretaker, so current placement evaluation and assessment was necessary. (S) LMF

Lankford, Valerie — In re Justin R., D051129 — Dependency Jurisdictional
Three younger children appealed the juvenile court’s order dismissing their dependency petitions but sustaining the petition over their older sibling under Welfare and Institutions Code section 300, subdivision (b). Court reversed and ordered juvenile court to sustain jurisdiction over three siblings and hold dispositional hearing regarding them. (I) ACS

Williams, Nicole (mother); Fabian, Carl (minors) — In re Calvin P. et al, D051172 — Denial of Reunification Services
After trial court made finding under Welfare and Institutions Code section 361.5, subdivision (b)(10) that mother was not required to have reunification services, it failed to exercise its discretion under section 361.5, subdivision (c) to consider whether services were in the minors’ best interest and should nevertheless be ordered. Instead, the court improperly delegated the determination to the Agency and did not directly address the issue of the children’s best interests. Case remanded for minors’ best interest consideration. (I) CBM

Vento, Christine (Appellant Armster), Shulman, Corinne (Appellant Varela), Jones, Sharon (Appellant Reyes) — People v. Tony Armster, et al., E038151 — Penal Code Section 654.
Appellants’ sentences for conspiracy to commit murder and the attendant enhancements are stayed pursuant to Penal Code section 654. where appellants were separately punished for attempted murder. (I) LKH

Brandes, Elisa — People v. Aragon, E038944 — Blakely/Cunningham
Upper term sentence violates Sixth Amendment, because trial judge relied only on factors related to the crime that were not admitted by appellant, and none of which was implicit in any of the jury’s verdicts. (I) DKR

Shudde, Athena — People v. Gebhardt, E039807 — Abstract of Judgment
Abstract of judgment ordered amended to conform to actual sentence imposed by the court. Term reduced by one year. (I) PED

Levy, Richard — People v. Barajas, E039512 — Instructional Error
Two counts of first degree murder, as well as multiple murder and burglary murder special circumstances, reversed, because the trial court neglected its sua sponte duty to instruct on the merger doctrine, according to which a burglary based solely on an intent to kill or feloniously assault cannot support burglary felony murder or a burglary murder special circumstance. (I) RBB

Torres, Steven A — People v. Romero, E040434 — Penal Code Section 654
Trial court violated section 654 in failing to stay the term for the possession of handgun conviction, where appellant was also sentenced for attempted premeditated and deliberate murder. (I) LAR

Weis, Lizabeth — People v. Dodson, E040617 — Pet Condition
The probation condition requiring appellant to notify his probation officer of any pets violates People v. Lent and is unconstitutionally overbroad. The trial court is directed to modify the condition. (I) AMJ

Matsumoto, Ellen — People v. Rivera, E040755 — Penal Code Section 654
Attorney General conceded and Court of Appeal agreed that trial court erred in failing to stay the prison term imposed for the terrorist threat crime. Appellant’s threats were uttered to force the victim to commit oral copulation (a crime of which appellant was also convicted). Because the evidence showed appellant had but one criminal objective – the oral copulation, the trial court erred in failing to stay the prison sentence on this count. (I) CBM

Schwartzberg, Richard — People v. Leonard, E041250 — Evidence of Strike Prior; Propriety of Dismissal of Charge

In the defendant’s appeal, Attorney General conceded and Court of Appeal agreed that least adjudicated elements of Nevada robbery conviction are not equivalent to those of a California robbery conviction, because the Nevada statute requires neither the intent to permanently deprive the property nor that fear inducing the victim to part with the property to be caused by a threat of immediate harm. True finding for the strike prior was reversed; case remanded for new trial.

In state’s appeal, where perpetrator induced the victim to part with her car by pretending to be a repossession agent and thus caused the taking by trick and not by force or fear, the Court of Appeal affirmed the trial court’s dismissal of carjacking charges. (I) CBM

Jones, Sharon — People v. Soria, E041401 — Sufficiency of Evidence; Lesser Included Offense
Evidence waa found insufficient to sustain conviction for grand theft where the amount of loss attributable to appellant was $399.62. Further, conviction for carjacking reversed as it is a lesser included offense to kidnaping for and during a carjacking. (I) MCR

Costan, Charlotte — People v. Huffman, E041407 — Sentencing
One two-year on-bail enhancement ordered permanently stayed, because primary offense was dismissed and did not result in a conviction. A second two-year on-bail enhancement ordered stricken, because it was duplicative of enhancement imposed on another count. (I) DKR

Shudde, Athena — People v. Garcia, E041957 — Penal Code Section 654
Court of Appeal agreed that Penal Code section 654 applied to possession of a firearm by a felon where the evidence failed to support the prosecution’s theory that defendant had actual or constructive possession of the gun prior to the shooting, such that his intent in possessing was indivisible from his intent in shooting. (I) AMJ

Schwartzberg, Richard — In re McKnight — Correction of Fines
In response to a letter sent by the Department of Corrections and Rehabilitation to clarify the court’s restitution order of $500 pursuant to Penal Code section 1202.4, subdivision (b) and $6000 pursuant to Penal Code section 1202.45, the trial court issued a nunc pro tunc order imposing $6000 in restitution under Penal Code section 1202.4 and $6000 in restitution under Penal Code section 1202.45. The Court of Appeal granted appellant’s writ petition, reasoning the correction was not clearly one of a clerical error and thus could not be made after judgment issued. Rather, the court’s action was an attempt to correct a judicial error. At sentencing, the court had referred to the $500 not only as victim restitution but also as a fine. Because it was unclear what the court had initially ordered, any correction could not be defined as one fixing a clerical error. (I) CBM

McLaughlin, Robert (mother), Rehm, Linda (father) — In re Shannon C., E042554 — Indian Child Welfare Act (ICWA)
Court reversed termination of parental rights and remanded on limited basis with directions for the lower court to conduct further proceedings to ensure compliance with ICWA notice requirements. (A) BCT

Dodd, John — People v. Oates, E042645 — Sentencing
Appellant was initially sentenced some years ago as an aider and abettor for multiple attempted murders of rival gang members, when a fellow gang member shot at five people, grievously wounding one. Originally, the trial court imposed concurrent sentencing for the offenses; the People sought review on whether the firearm-great bodily injury enhancement attached to each of the five victims (albeit only one was wounded). The Supreme Court held that the enhancement did attach to each of the victims. After the superior court prematurely resentenced appellant after a second petition for review had been granted on a second appeal, the Court of Appeal remanded for a proper resentencing. The trial court then sentenced consecutively, giving reasons inconsistent with its original sentencing, although no factual circumstance had changed. On this appeal, the People conceded error, and the Court of Appeal ordered concurrent sentencing. (I) HCC

Klaif, Leonard — People v. Cotten, E042927 — Restraining Order
Appellant argued, respondent conceded, and Court of Appeal agreed that once appellant had been sentenced in a terminal disposition without being put on probation, the trial court was without jurisdiction to issue a restraining order. Neither Penal Code section 136.2 nor section 1203.097 authorizes such an order. (I) HCC

Jog, Anita — People v. Scruggs, E042938 — Probation Modification
The Court of Appeal found that the condition of probation prohibiting appellant from associating with probationers and parolees was vague and overbroad. Condition was modified to include a knowledge requirement and an exception for probationers and parolees participating in programs with appellant. (S) APJ

Rich, Renee — In re Elvia G., E043135 — Juvenile Dispositions
Trial court failed to declare whether a wobbler offense was a misdemeanor or felony pursuant to Welfare and Institutions Code section 702. (A) RBB

Matulis, Jean — People v. Wolfe, G036847 — Parole Revocation Fine
Attorney General conceded and Court of Appeal agreed that where trial court failed to orally impose restitution fine and parole revocation fine, minute order and abstract of judgment indicating $10,000 imposed for each fine were erroneous. Case remanded for court to consider whether to impose restitution fines pursuant to Penal Code sections 1202.4 and 1202.45. (I) CBM

Gambale, Jennifer — People v. Phillips, G037493 — Prior Acts
In prosecution for transporting and possessing for sale methamphetamine, trial court erred in allowing evidence of a subsequent uncharged methamphetamine offense under Evidence Code section 1101, subdivision (b), where defendant did not contend he possessed the methamphetamine through accident or mistake, and where knowledge of the nature of the substance was not at issue. (I) RBB

Hennessey, Patrick — People v. Solis, G037903 — Insufficient Evidence.
Appellant’s convictions for being an ex-felon in possession of a firearm (Pen. Code, § 12021, subd. (a)(1)) and street terrorism (Pen. Code, § 186.22, subd. (a)) are reversed for insufficient evidence. The court found insufficient evidence to establish that appellant possessed a gun found in an abandoned vehicle. Here, the court stated, “There was no physical evidence that appellant possessed the gun, and no evidence to connect him to the abandoned vehicle.” Appellant’s conviction for street terrorism was also reversed, because gun possession was the only alleged conduct proved at trial. (I) LKH

Shanahan, Maureen — People v. Prosser, G037953 — Unauthorized Sentence
Appellant, a real estate broker, pleaded guilty to various offenses, resulting from her use of her real estate broker key card to access lockboxes on homes listed for sale, thereby gaining entry and thereafter stealing property worth over $400,000. She was sentenced to prison, and the court ordered that defendant not act as a real estate broker, agent, or salesperson in any real estate transaction. Appellant argued, respondent conceded, and the Court of Appeal agreed that the latter order was an unauthorized sentence. The penal statutes do not authorize the court to prohibit the defendant from engaging in a certain occupation, and the Legislature has vested in the Real Estate Commissioner the authority to bar convicted felons from practicing as real estate brokers, agents, or salespersons. (Bus. & Prof. Code, §§ 10003, 10177, subd. (b).) (I) HCC

Rehm, Linda (mother), Mack, Jennifer (minor) — In re Julian K., G038030 — ICWA. Judgment terminating parental rights was reversed and the case remanded to the juvenile court with directions to order Agency to comply with the ICWA. ICWA notices filed with juvenile court did not include the maternal grandmother’s place of birth or information for the maternal grandfather. (I) LKH

NOVEMBER 2007

King, Nancy — People v. Sison, D047341 — Denial of Fair Trial
Carjacking conviction reversed, where evidence of a murder stemming from a separate incident was found prejudicial. (I) MCR

Brajevich, Sally — People v. Mack, D048084 — Sentencing
Attorney General conceded and Court of Appeal agreed that two counts should have been stayed pursuant to Penal Code section 654. Abstract of judgment also ordered corrected to reflect correct Penal Code section for one of the convictions. (I) BCT

Scott, Patricia — People v. Cogswell, D049038 — Witness Availability
Court of Appeal reversed rape convictions and remanded for new trial, because trial court erred when it found that prosecution exercised due diligence in attempting to secure court attendance of complaining witness who had moved to Colorado. The prosecution used the Uniform Act to Secure the Attendance of Witnesses, codified in Penal Code section 1334 et seq., to obtain a Colorado court order compelling attendance twice. The witness refused to comply with each order and advised the prosecutor after her first failure to appear that she would not attend. Trial proceeded using the witness’s preliminary hearing testimony. The Court of Appeal reversed, concluding the prosecutor should have had the Colorado court order the witness taken into custody as a material witness and transported to California. The Court of Appeal rejected the government’s argument that California Code of Civil Procedure section 1219, which bars a trial court from using its contempt power to imprison a sexual assault victim who refuses to testify, also applied to bar taking the victim into custody as a material witness for the purpose of guaranteeing the witness’s attendance at trial. The Court of Appeal held that the trial court’s contempt power is different than its power under the Uniform Act. (I) DKR

Kessler, Daniel J. — People v. Romes, D049659 — Remand to Allow Plea Withdrawal.
The Attorney General conceded and the Court of Appeal agreed that appellant should be allowed to withdraw his guilty pleas when the plea forms listed concurrent sentences as a term of the plea agreement, but the trial court found consecutive sentences to be mandatory under the Three Strikes law. The issue was treated as a sentencing issue, and no certificate of probable cause was required. (I) APJ

Robinson, Warren. — People v. Stidum, D049999 — Correction of Probation Report
The trial court erred in not striking incorrect information contained in the probation report; remanded for correction. (I) AMJ

Gordon, Laura. — People v. Lovejoy, D050234. — Improper Enhancement
Attorney General conceded and Court of Appeal agreed that trial court erred in imposing a one-year enhancement for knife use, because knife use was an element of the substantive offense. (I) AMJ

Trop, Neil — In re Baby Boy L. D050245. — Dependency-Special Hearing
Minor appealed the failure of court to place him with his maternal grandparents in Mexico. Court of Appeal held juvenile court abused its discretion in failing to place minor with his grandparents. Baby was conceived as the result of a sexual assault and mother wanted nothing to do with child. (I) ACS

White, Catherine. — People v. Quitiquit, D050385. — Evidence re Physical Abuse.
The critical issue of this appeal was whether the trial court erred in admitting evidence of a declarant’s statements to her doctor and a police officer that defendant had cause her neck injury seven weeks earlier, pursuant to the “physical injury” exception to the hearsay rule for statements made “at or near” the time of the injury. In a split decision, the court found the statements to the doctor were not made at or near the tine of the injury and that the statements to the police officer were not made under circumstances indicating their trustworthiness and non-qualified for admission pursuant to Evidence Code section 1370. (I) LAR

Smith, Barbara — People v. Masiel, D050398/E040351 — Sentencing
Sentence modified to strike the 10-year enhancement imposed under Penal Code section 186.22, subdivision (b)(1)(C), and to impose the 15-year parole eligibility minimum under section 186.22, subdivision (b)(5) in its place. (I) HCC

Mallinger, Kathleen. — In re Nolan W., D050408. — Civil Contempt Sentence
Appellant argued and Court of Appeal agreed that trial court abused its discretion by sentencing mother in a dependency case to 300 days in jail for failure to enter a substance abuse program. Court of Appeal held sentence was punitive and, therefore, an abuse of discretion. (Opinion treated the appeal as a writ of habeas corpus.) (I) LLF

Lankford, Valerie and Trop, Neil — In re Miguel A.; D050694 — Sibling Relationship After Termination of Parental Rights
The Court of Appeal decided in this published case that termination of parental rights in a dependency case did not sever the sibling relationship between the subject child and his/her biological brothers or sisters. The court exercised its discretion to decide the otherwise moot case, because it raised important issues capable of repetition, but likely to evade review. The case was affirmed because the sibling with whom the appellant minor sought visitation had been adopted, and the juvenile court no longer had jurisdiction to order visitation with him. (I) CAG

Chirco, Donna. — In re Taylor H., D050776. — Indian Child Welfare Act (ICWA)
Agency conceded improper notice pursuant to ICWA, and parties stipulated to immediate issuance of remittitur. Judgment reversed with limited remand for agency to give proper ICWA notice. If no tribe finds child is Indian child, judgment to be reinstated. (I) LLF

Braden, Julie — In re Steven H., D050817 — ICWA.
ICWA remand due to failure to provide notice to all tribal entities and failure to address notice to tribal chairperson. (I) LMF

Cilli, Gregory — People v. Vogt, E039410 — Correction of Abstract of Judgment
Minute order and abstract of judgment were in error, because they were inconsistent with the oral pronouncement of judgment. Trial court then increased the fine further following request by Department of Corrections. Superior Court ordered to correct these errors. (A) AMJ

Erickson, Kristin. — People v. Emmert, E039817 — Blakely/Cunningham
Following a People’s petition for review, the Supreme Court returned the matter for reconsideration in light of Black II and Sandoval. The Court of Appeal reconsidered and reached the same conclusion that the trial court improperly relied on factors which required true findings by the jury and the error was not harmless. Upper term reversed and remanded for resentencing. (A) AMJ

Cilli, Gregory — People v. Rosenberg, E040241 — Lesser Included Offense
Appellant’s conviction of assault is dismissed because it is a lesser included offense of conviction for corporal injury to a cohabitant in another count. (A) DKR

Shanahan, Maureen — People v. Gonzales, E040366 — Dual Convictions
Appellant’s receiving stolen property conviction is reversed.because he cannot be convicted of both stealing and receiving the same property. (I) DKR

Keiser, Susan — People v. Lopez, E041017 — Great Bodily Injury Enhancement
Attorney General conceded and Court of Appeal agreed that Penal Code section 12022.8 great bodily injury enhancements do not apply to violations of Penal Code section 288, subdivision (a). Five-year consecutive enhancements stricken as unauthorized and matter remanded to trial court for consideration of whether to impose a section 12022.7 enhancement. (I) APJ

Keiser, Susan — People v. Spiking, E041481 — Sentencing
Trial court erred in staying punishment on two prison priors, rather than striking the priors. (I) LAR

Matsumoto, Ellen — People v. Hicks, E042221 — Penal Code Section 654
Receiving stolen vehicle count stayed because same vehicle involved in count for unlawful taking. (I) DKR

Matulis, Jean — People v. Freeman, E042272 — Consecutive Sentence; Credits.
This case was previously reversed and remanded for resentencing. On this appeal after resentencing, court reversed and remanded for trial court to provide reasons for consecutive sentences and to recalculate custody credits. (I) BCT

Randall, Michael — In re Alexis H., E042322 — ICWA
Reversed for failure to give adequate notice. (I) ACS

Keller, Roni — In re Kevin M.,E042623 — Dependency Jurisdiction; Disposition Findings; ICWA.
The Court of Appeal reversed for lack of subject matter jurisdiction the dependency adjudication of three older children who had been living in Arizona with their grandmother. In addition, the mother’s confrontation rights were violated to the extent the court relied upon evidence for one of the two allegations of the petition from another individual’s case, not the evidence presented at the hearing. Although there was no objection by mother’s attorney, the allegation was not supported by sufficient evidence, and mother’s attorney had presented her arguments and rested when the court made its unusual findings. Disposition findings were reversed for the juvenile court to reconsider in light of the remaining ground for jurisdiction, mother’s alleged substance abuse, as the juvenile court failed to explain the basis of its findings and orders to remove custody. Finally, no evidence was presented that the social worker performed the necessary notice under ICWA. (I) CAG

Auwarter, Neil — People v. Elder, D042685 — Proposition 36
Attorney General conceded and Court of Appeal agreed that appellant was erroneously sentenced to prison and was instead entitled to Proposition 36 probation. The sentencing court, at prosecutor’s urging, had interpreted Penal Code section 1210.1 as precluding Proposition 36 probation for a defendant with a prior DUI conviction, when in fact the preclusion only applies where the DUI occurred within five years after a prior serious felony conviction. With the stipulation of the parties, the Court of Appeal issued the remittitur immediately. (S) NFA

Webb, H. Reed — People v. Mohoff, G037232 — Penal Code Section 654
The Court of Appeal stayed a concurrent sentence for passing a fictitious instrument, when appellant was sentenced for burglary based on intent to commit the same offense. (A) APJ

Haggerty, Edward — People v. Yocum, G037621 — Amendment of the Information Trial court erred when it permitted the prosecution to amend the information at the end of the prosecution’s case-in-chief to “conform to proof.” In this case, defendant had waived his preliminary hearing, and any amendment that changed the specific charges listed in the original complaint was barred by Penal Code section 1009. (A) LAR

Ward, Paul — People v. Najar, et. al., G038687 — Penal Code Section 654
Trial court erred by failing to stay the one-year consecutive sentence on the possession of contraband money conviction, because he possessed the funds with the same intent and objective underlying the conviction of possession for methamphetamine for sale. (I) AMJ

Tavano, Joseph — People v. Dominguez, et. al., G038687 — Peanl Code Section 654; Blakely/Cunningham
Trial court erred by failing to stay the one-year consecutive sentence on the possession of contraband money conviction, because he possessed the funds with the same intent and objective underlying the conviction of possession for methamphetamine for sale. The imposition of the upper term was prejudicial error and violated the Sixth Amendment. (I) AMJ

Stechel, Howard — People v. Lamas, S145231 — Gang offenses
Convictions of Penal Code sections 12031, subdivision (a)(2)(C) [active gang member carrying a loaded firearm in public] and 12025, subdivisions (a)(2) & (b)(3) [active gang member carrying concealed firearm on his person] require proof the gang member promoted felonious conduct distinct from otherwise misdemeanor conduct of carrying loaded firearm in public or carrying a concealed firearm. (I) RBB

OCTOBER 2007

Martin, Arthur; Scott, Patricia — People v. Cole & Robles, D047095 — Jury Instructions, Insufficient Evidence.
Court of Appeal reversed 11 counts of selling securities without a licence (Corp. Code, § 25210), because jury instructions erroneously eliminated the defense of good faith belief defendant was exempt from the licensing requirement. Also, two counts of selling securities by false statement (Corp. Code, § 25401) were reversed for insufficient evidence of scienter (knowledge of falsity). (I) NFA

Harris, Donna — People v. Flores, D048488 — Sentencing.
Judgment modified to strike two lesser included offenses and to stay one term pursuant to Penal Code section 654. (I) PED

Polsky, David — People v. Booth, D047740 — Cunningham
Upper term sentence reversed in light of Cunningham and Sandoval. Erroneously calculated sentence corrected. Consecutive sentences changed to concurrent. (I) PED

Zimmerman, Harry — People v. Rodriguez, D048564 — Insufficient Evidence.
Court found insufficient evidence in prosecution for discharging a firearm with gross negligence (Pen. Code, § 246.3) and serious bodily injury enhancement, because discharge of firearm was accidental, rather than willful or intentional. Also, the court struck two prison priors the trial court had erroneously attached to that count. (I) JLP

Boyce, Robert — People v. Chavez, D048908 — Sentencing
Trial court erred in staying rather than striking a Penal Code section 12022.5, subdivision (a) enhancement in a case where a section 12022.53, subdivision (d) enhancement was imposed. (I) RBB

Ford, Patrick — People v. Armitage, D048975 — Sentencing
In a resentencing following appeal, trial court erred in 1) imposing what it believed to be mandatory consecutive Three Strike sentences for felony convictions arising out of the same set of operational facts, 2) imposing two Penal Code section 1202.4, subdivision (b) restitution fines when two cases were consolidated for trial, and 3) failing to recognize its discretion to dismiss strikes as to some but not all counts pursuant to People v. Garcia (1999) 20 Cal.4th 490. (I) RBB

Shudde, Athena — People v. Cruz, D049567 — Lesser Included Offenses
Carjacking count dismissed as a lesser included offense of kidnapping during a carjacking; false imprisonment by violence count dismissed as a lesser included offense of kidnapping for robbery. (I) RBB

Lankford, Valerie (mother); Mallinger, Kathleen (2 minors); Braden, Julie (3d minor) — In re: Elijah Pack, D049807 — Post-Judgment Evidence
Partial reversal as to one minor and remand to conduct a new hearing under Welfare and Institutions Code section 366.26. Court concluded “this was a rare and compelling case that lies within the exception prohibiting the reviewing court from considering post judgment evidence.” Specifically, the court considered a trial court order authorizing third minor’s emergency removal from the home as evidence supporting a finding that the minor was not likely to be adopted within a reasonable period of time. (I) PED

White, Catherine — People v. Bunch, D050138 — Prior Conviction Admission
Although trial court took waivers of appellant’s constitutional rights, it never took appellant’s admission to the enhancement allegations. Because appellant never actually admitted the enhancements, trial court erred in imposing a prison sentence for them. Case remanded for a new hearing on the enhancements and a new sentencing hearing. (A) CBM

Tavano, Joseph (for mother) — In re Alexandria M., D050407 — Termination of Dependency Jurisdiction
Affirmance of the termination of jurisdiction, remand to the family court. (I) CAG

Mallinger, Kathleen (for father); Hook, William (for minors) — In re Alexandria M., D050407 — Termination of Jurisdiction, Settlement Agreement, Visitation Orders, Custody Orders, and Child Support
Affirmance of the termination of jurisdiction. Reversal of the orders regarding custody, visitation, and child support. Remand to the family court to determine these issues. The court abused its discretion by not accepting the settlement agreement and by terminating child support. The juvenile dependency court lacked jurisdiction to make child support orders. Minor’s counsel joined with Agency which agreed with the father’s position(I) CAG

Buchanan, Vicki — People v. Sebald, D050427 — Penal Code Section 654 Stay
Disagreeing with the Attorney General, the court determined that appellant harbored a single objective for the possession of burglary tools and burglary convictions. (A) AMJ

Christiansen, Mark — People v. Woosley, E039885 — Cunningham and Sentencing
Reversed and remanded. The trial court erred in imposing the upper term in violation of the Sixth Amendment; imposing a 20-year firearm enhancement and a stayed 10-year firearm enhancement because there was no finding by the jury; imposing two multiple-murder special circumstances rather than one; and imposing a stayed parole revocation fine because appellant’s sentence did not include a period of parole. The abstract of judgment was in error for stating that the two attempted murder convictions were for first degree, rather than unpremeditated attempted murder. (I) AMJ

CeVito, Cara — People v. Calzaretta, E040603 — Restitution
Appellant was convicted of various offenses, including felony assault as to one named victim, and sentenced to prison. The trial court ordered restitution to another unnamed victim as well, i.e., for conduct not resulting in a conviction. The Court of Appeal struck the contested restitution as unauthorized. Because it was unauthorized, the failure of trial counsel to object was not a forfeiture. The Court of Appeal also distinguished the case law which permitted such restitution as a condition of probation, because, here, probation was denied. (I) HCC

Robinson, Warren — People v. Smith, E040604 — Sentencing
Court erred in imposing upper term, in part, by using four of appellant’s prior convictions, which also served as enhancements upon which sentence was imposed under another provision of law. Remanded for resentencing. (I) AMJ

Dixon, Larry — People v. Heyden, E041047 — Custody Credits
Trial court failed to properly calculate appellant’s conduct credit. Attorney General conceded, and Court of Appeal agreed, ordering the abstract of judgment corrected to reflect an additional eight days of conduct credit. (A) LKH

Eskenazi, Lauren E. — People v. Meekins, E041048 — Theft/Receiving Stolen Property Attorney General conceded appellant could not be convicted both of the theft of the property and receiving that property. Conviction of receiving stolen property reversed. (A) LAR

Stralla, Ava — People v. Bolton, E041315 — Prison Priors
People conceded lower court did not intend to impose prior prison terms. Court of Appeal ordered abstract of judgment corrected to reflect the prior prison terms were stricken rather than stayed. (I) BCT

Auwarter, Neil — People v. Smith, E041331 — Sentencing
In an unpublished decision with one justice dissenting, the court denied the prosecution’s petition for writ of mandate seeking resentencing. Defendant was initially sentenced to prison for two years for vehicular manslaughter and driving under the influence. On its own motion, the trial court recalled the sentence under Penal Code section 1170, subdiv