The unpublished opinions from the following cases can be viewed by visiting the Judicial Council Web site. The unpublished opinions remain on the Judicial Council Web site for 60 days from the date of the filing of the opinion.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 2006

Vogelmann, Monica: In re Valerie A., A Minor, D047748.
In a published reversal, Court of Appeal found that the trial court erred when it prevented mother from presenting evidence of a sibling bond between twins, who were the subject of the dependency proceedings and an already adopted older sister. The trial court had excluded sibling bond evidence, because it determined that the older sister, as a result of adoption, was no longer a "sibling" to the twins. The Court of Appeal agreed with appellant-mother that, although "sibling" is not defined under Welfare and Institutions Code section 366.26, subdivision (c)(1)(E), the definition of "sibling" in other dependency statutes references a blood relationship which continues even after the adoption of one or another child. The Court of Appeal further found that it is apparent from the statutory scheme that the Legislature intended the term to be treated broadly. (I) APJ

Owen, Thomas: P. v. Metcalf, G035277.
Case remanded for new sentencing hearing, where sentences for forgery should have been stayed, because the forged checks furthered the same criminal objective as grand theft against the bank. Lower court was also ordered to award an additional day of presentence custody credits and to amend minute order and abstract of judgment to conform to oral pronouncement of judgment. (A) DLN

Bauguess, Susan: P. v. Grey, E038063.
Eight month consecutive sentence for filing a false police report stayed pursuant to Penal Code section 654, where this offense occurred at the same time and was premised on the same act as charged in count two, also a charge of making a false police report. (I) MRR

Torres, Steven: P. v. Owens, E037097.
25-years-to-life sentence imposed for criminal threat and knife use enhancement stayed pursuant to section 654. The threats were a part of the assault, for which the defendant was already punished. (I) CMS

Morrison, Maria: P. v. Hinojosa, G034655.
Trial court prejudicially erred in allowing prosecutor to elicit evidence of defendant's prior arrest under Evidence Code section 1101, subdivision (b). (A) RBB

DuNah, Patrick: In re Anthony C., A Minor, G035480.
Remand to Juvenile Court with directions to consciously exercise its discretion as to whether wobbler offense is a felony or misdemanor. (ADI) PED

Shudde, Athena: P. v. Om, D046382.
Consecutive sentences on four counts pursuant to Penal Code section 667.61 reversed and remanded for new sentencing hearing, because trial court did not understand it had discretion to order concurrent sentences. (I) DKR

Marshall, Marilee: P. v. Hunt, G035240.
Appellant's conviction reversed because the trial court excluded virtually all of appellant's evidence that supported her defense of mistake of fact that she believed she had permission to drive the car, and the error was not harmless. (I) BCT

Salisbury, William: P. v. Garces, D045022.
Appellant's first degree murder conviction is reversed where the trial court prejudicially erred in admitting hearsay statements in violation of Crawford v. Washington (2004) 541 U.S. 36. (I) LKH

Ulibarri, Patricia: P. v. Davis, D046149.
The Court of Appeal reversed convictions for taking and receiving the same property due to trial court failure to instruct the jury appellant could be convicted of one or the other, but not both. The Court of Appeal reversed both counts to give the prosecution an opportunity to set the cause for retrial of either or both counts. (I) APJ

Crawford, James: P. v. Salgado, G035476.
The Court of Appeal found insufficient evidence to support two elements of the gang enhancement: 1) that appellant committed the underlying robbery to benefit the gang; and 2) that appellant committed the underlying robbery with the specific intent to promote criminal conduct of gang members. The prosecution's evidence showed only that appellant was a gang member and the offense took place in gang territory. While a gang expert opined that the robbery would enhance the gang's reputation and appellant might share proceeds with the gang, there was no evidence in this case that news of the crime spread nor that appellant garnered any proceeds. With respect to intent, there was no other gang member present, the victim was not a member of a rival gang, and appellant did not shout a gang name or throw a gang sign during commission of the offense.
(I) APJ

Jones, Sharon: P. v. Lucero, E035719-01.
10 year Penal Code section 186.22, subdivision (b)(1)(C) enhancement stricken because underlying felony is punishable by life imprisonment. (I) RBB

Petermann, Conrad: P. v. Aguilar, E035719-02.
Because a 20 year enhancement was imposed under Penal Code section 12022.53, subdivisions (c) and (e)(1), imposition of a 15 year minimum parole eligibility date under section 186.22, subdivision (b)(5) is precluded by section 12022.53, subdivision (e)(2). (I) RBB

Fabian, Carl: P. v. Sandoval, D045846.
Reversed and remanded with directions. Trial court abused its discretion in denying defendant's motion to withdraw the guilty plea Defendant's plea was coerced by threats from co-defendant and pressure by the trial court. (I) AMJ

Lee, Konrad: In re Jesse B., A Minor, E039118-02.
Reversed in part for failure by the court and the Department to comply with Indian Child Welfare Act (ICWA) mandates. the court, after directing the Department to provide confirmation as to whether the ICWA applied, dropped the ball by failing to make further inquiry as to whether its directive had been carried out. (I) AMJ

Nelson-Smith, Laurel: In re Daniel N., A Juvenile, E038294.
The trial court improperly calculated minor’s maximum term of commitment; term reduced by two months. (I) CBM

Pfeiffer, Rich (Grandparents); Fabian, Carl (Minor): In re Shirley K., A Minor, D047554.
In a published opinion, the Court of Appeal reversed the lower court's denial of the Welfare and Institutions Code section 388 petition filed by the paternal grandparents, who are also the defacto parents. Minor's counsel on appeal joined with the grandparents' briefs and further asserted the social worker failed to remain objective and did not consider the minor's best interests. After parental rights were terminated, the minor was moved to a non-relative placement based on family substance abuse issues. At the time of removal, the minor had been in her grandparents' care for 20 months, almost her entire life. Because the minor was having separation anxiety and several placements had failed, the grandparents' visitation was reduced to facilitate minor's bonding with the new prospective parents. First, the Court of Appeal held that findings and orders under section 388 petitions filed after the termination of parental rights are appealable under section 395, and writ procedures under section 366.28 do not apply. Second, the Court of Appeal held that a trial court, in reviewing a child's placement after parental rights are terminated, is not limited to the question whether the Agency has abused its discretion in making its adoptive placement, but rather the trial court must assess the Agency's post-termination placement within the context of the child's best interests. The case was remanded to the trial court to determine whether minor's interests are best served by return to her grandparents or, in the alternative, by a grant of liberal visitation. (I) BCT

Chirco, Donna: In re Troy B., A Minor, E039336.
The Court of Appeal conditionally reversed the termination of parental rights for compliance with the ICWA. (I) BCT

Schwartzberg, Richard: P. v. Melnyk, G035517.
Court of Appeal reversed appellant's 25-years-to-life sentence on the ground the trial court erroneously denied his suppression motion. A police officer conducting a Terry stop frisked appellant and felt what might have been a knife in appellant's back pocket. The officer asked appellant if she could remove the item, and appellant consented. The officer then removed the item, which was an Allen wrench, but also removed several other items, including a credit card. The credit card was determined to belong to a theft victim, and this discovery led to the discovery of evidence of other crimes.
The Court of Appeal held the officer's removal of the credit card was not justifiable on Terry grounds, because it did not feel like a weapon. Nor did appellant's consent, which was limited to removal of the larger object, justify the removal of the credit card. The court held the subsequently discovered evidence was suppressible as the fruit of the poisonous tree. The court noted that where the prosecution at a suppression hearing argues only that the police conduct was lawful, the prosecution has waived the right to argue on appeal that some evidence was not the fruit of the poisonous tree if the reviewing court finds the initial seizure unlawful (citing Lorenzana v. Superior Court (1973) 9 Cal.3d 626 and People v. Gentry (1992) 7 Cal.App.4th 1255, 1268). (I) NFA

Norris, Ronda: P. v. Luong, G032825.
Court of Appeal granted habeas corpus and reversed appellant's conviction where trial counsel was ineffective in failing to object when the prosecutor committed Doyle error by referring to appellant's post-arrest silence. The prosecutor cross-examined a police officer regarding appellant's failure to deny guilt after his arrest and later argued this point to the jury. (I) NFA

Fabian, Carl: P. v. Escamilla, D046822.
Appeal by the Department of Corrections from the order granting petitioner's petition and awarding him the value of personal property that was lost by the Department. Affirmed as modified. Court of Appeal agreed to treat the petition, filed as petition for writ of habeas corpus, as a writ of mandamus seeking specific recovery of his personal property or its value, rather than as a claim for damages as contended by the Department so as to preclude him from relief. Court found substantial evidence supported the award. (I) AMJ

Cannon, Gregory: P. v. Lopez, D046705.
Case was remanded for a redetermination of probation terms where appellant's probation order contained numerous probation conditions apparently not imposed by the trial court at sentencing. (I) NFA

Lathrop, Stephen: P. v. Owens, E036788.
Where appellant was convicted of only one count of a violent sex offense enumerated in Penal Code section 667.6, subdivision (d), the trial court erred in concluding that a consecutive full term was mandated. Matter was remanded to permit the trial court to exercise discretion under subdivision (c) as to whether to impose a consecutive full term. (I) HCC

Kane, Greg: P. v. Allen, D046122.
Court erred in denying appellant 28 days of presentence custody credits pursuant to Penal Code section 2933.1. (I) LAR

Peterman, Conrad: P. v. Murphy, E031035-02.
Court of Appeal reversed two counts of second degree felony murder pursuant to People v. Howard (2005) 34 Cal. 4th 1129. Howard held that evading an officer with willful disregard for the safety of persons or property (Veh. Code, section 2800.2) was not an “inherently dangerous felony” and thus was an improper basis for second degree felony murder. The Court of Appeal had initially affirmed the convictions, but granted defendant’s request to recall the remittitur and reinstate the appeal after Howard was decided. (I) NFA

Ballantyne, Jean: P. v. Eom, G034291.
Personal gun use enhancement to burglary count stricken where such an enhancement is inapplicable to burglaries. Attorney General conceded this much, and the court struck the Penal Code section 12022.53(b) allegation. (I) CFS

Schwartzberg, Richard: P. v. Francisco, G035873.
Sentence reversed and case remanded for new sentencing hearing, because trial court erred when it imposed a full-strength consecutive sentence for assault with intent to commit sodomy as defendant did not have a qualifying prior conviction as required by Penal Code section 667.6. (I) DKR

Hennessey, Patrick: P. v. Harris, D046628.
Offense of caretaker theft from an elder reversed due to failure to give CALJIC No. 17.01 unanimity instruction. (I) PED

Nicole Williams (Mother); Pfeiffer, Rich (Father): In re Erik B., A Minor, G036316.
Agency has duty to take reasonable steps to complete child's application for tribal membership where child is a court dependent and tribe says child "can be traced in [the Cherokee Nation's] tribal records through an extended family member." (I) ACS for CAG

Goldhammer, Harvey: P. v. Washington, G035128.
Where the present offense was not serious or violent, the trial court erred in imposing a five-year criminal street gang enhancement. Matter was remanded for the trial court to impose a two, three, or four-year sentence. (I) HCC

Romero, Lynda: P. v. Cuellar, G036192.
Court ordered a stay of the sentence imposed on the burglary charge. The burglary and lewd act were committed with the same objective, and the burglary was the means of accomplishing the lewd act. Therefore, the concurrent term imposed on the burglary conviction violated Penal Code sections 654, subdivision (a) and 667.61, subdivision (f). (I) BCT

Buckley, Christian: P. v. Ortiz, G035222.
Appellant's conviction of attempted voluntary manslaughter is reversed for ineffective assistance of counsel where counsel fell asleep during the prosecutor's direct examination of a percipient witness. (A) LKH

Bacall, Michael: P. v. Shaphard, D046147.
30-years-to-life case (various counts of rape, kidnap, robbery) reversed and remanded where trial court abused its discretion under Evidence Code section 352 when it allowed co-defendant's trial counsel and the prosecutor to impeach appellant with questions regarding allegations that he had committed two prior acts of sexual misconduct for which appellant was never convicted. (I) MRR

Stechel, Howard: P. v. Lamas, G035001.
Conviction of street terrorism reversed as a lesser included offense of possessing a loaded gun in a public place by a gang member. Also, sentence for carrying a concealed weapon by a gang member stayed per Penal Code section 654 because the act was inseparable from possessing it. (I) RBB

Boire, Richard: P. v. Suarez, E037725.
Court of Appeal reversed conviction for carrying a concealed dirk or dagger (Pen. Code, § 12020, subd. (a)(4)) where the trial court had failed to instruct jurors with the complete definition of "dirk or dagger" provided by the statute. The omitted portion of the statutory definition states that certain types of pocket knives and folding knives do not qualify as a "dirk of dagger." The omission was prejudicial, because the evidence would have allowed jurors to conclude appellant's knife was one exempted by the statute. (A) NFA

Siref, Richard: P. v. Iker G., A Juvenile, D046974.
The minor was charged with possession of cocaine after he was searched by a school resource officer and drugs were found. The minor was called in for questioning after he was identified as one of the parties present during a fight on school campus. When the minor arrived in the office for questioning, the officer searched his backpack for officer safety reasons. He found pictures of the minor in possession of a gun, stink bombs, sharpie markers, and a page of gang graffiti. He then searched the minor and found drugs in his pocket. A motion to suppress the drugs found was denied, and the minor admitted the violation. Held: Denial of motion to suppress reversed. The reviewing court found no reasonable suspicion justifying the search. The officer had no information the minor was involved in the fight versus being an observer. No weapons were brandished at the fight. There was no information the minor was armed the day after the fight or at any prior time. There was no articulable suspicion to show the minor had ever been armed, and, therefore, no evidence to support a reasonable concern for officer safety. (I) CMS

Ward, Paul: P. v. MacIsaac, G035163.
Protective order that appellant stay away from his spouse, which was issued as a condition of probation, was extended for 10 years when probation was terminated and appellant was sentenced to prison. That condition was reversed. Protective orders issued in conjunction with a grant of probation to protect victims during the criminal process (see Pen. Code, §§ 136.2, 1203.097) cannot be extended once probation is revoked and the defendant is sentenced to prison. (People v. Stone (2004) 123 Cal.App.4th 153.)
(I) CMS

May 2006

Shulman, Corinne: P. v. Segovia, E036435-02.
Trial court erred in imposing multiple Penal Code section 12022.53 enhancements on the same counts. (I) RBB

Vento, Christine: P. v. Ramirez, E036435-03.
Trial court erred in imposing multiple Penal Code section 12022.53 enhancements on the same counts. (I) RBB

Hennessey, Patrick: P. v. Tittle, D045845.
Two counts of attempted voluntary manslaughter reversed because trial court failed to instruct the jury attempted voluntary manslaughter requires the intent to kill. (I) RBB

Vento, Christine: P. v. Martinez, E036407.
Two Penal Code section 186.22, subdivision (b) gang enhancements attached to two substantive counts stricken because although the jury returned true findings on them, they were not alleged in the information. Also, an additional gang enhancement properly pled and proven and attached to a separate count was stricken because of a 20-year section 12022.53, subdivision (c) enhancement attached to that count. (I) RBB

Williams, Nicole: In re S.D. et al., minors, E038804.
Reversal for failure to comply with ICWA notice. (I) ACS

Jog, Anita: P. v. Bell, E037086.
The Court of Appeal modified the judgment to stay a sixteen-month consecutive sentence pursuant to Penal Code section 654 when the vehicle theft upon which the sentence was based was an objective of the burglary for which appellant was separately punished. (ADI) APJ

Hennessey, Patrick: P. v. Wells, D046899.
Judgment reversed and case remanded to the trial court to conduct a new hearing on whether appellant has grounds for a motion to withdraw his plea.
Appellant pled guilty to a stipulated term. At the sentencing hearing, appellant appeared with a different attorney from the same office and who advised the court that appellant wanted to withdraw his plea. The attorney stated that she saw no justification for withdrawing the plea, but admitted being in an "awkward position" to evaluate a potential ineffective assistance of counsel claim. The trial court confirmed that no formal motion had been filed and proceeded with sentencing. Appellant attempted to explain the basis for the motion, but the trial court interrupted, stating that it was going forward with sentencing because no motion had been filed. (I) LKH

Kaiser, Donna (Mother); Rollo, Sharon (Father): In re R.H., E037320.
Court of Appeal reversed jurisdictional and dispositional orders on a 387 petition and also reversed order appointing a guardian ad litem for the mother. The court found insufficient evidence that parents were unable to care for child due to an inability to meet the child's emotional needs and doubts about child's willingness to report harm. The Court also found that trial court committed reversible error by appointing a guardian ad litem for the mother without notice or a hearing. (I) APJ

Romero, Lynda: P. v. Scott, E037666.
The defendant was convicted of, among other things, second degree robbery [count 1], evading a police officer [count 2], and resisting/obstructing a peace officer [count 5]. On appeal, he contended Penal Code section 654 barred multiple punishment for the evading and obstructing counts, because they were transactionally related to the robbery because they constituted his escape from the robbery. The Court of Appeal agreed that the defendant drove the car in an effort to escape from the scene of the robbery, and thus the robbery and evasive driving were part of an indivisible course of conduct for purposes of section 654. In reaching this conclusion, the court rejected the respondent’s argument that the evasion counts and the robbery involved separate victims for which the multiple victim exception to section 654 might apply. The court concluded that the applicability of the multiple victim exception depended on whether both robbery and the evasion charges were crimes of violence. Here, the court found that section 2800.2 is not a crime of violence; hence, the multiple victim exception did not apply to defeat applicability of section 654. (I) CFS

Schraer, George: P. v. Parra, G035083.
Attorney General conceded and Court of Appeal agreed that trial court erred in imposing parole revocation fine where appellant was sentenced to life in prison without the possibility of parole. (I) DLN

Weinberg, Allen: P. v. Nolan, G035383.
Conviction for possession of methamphetamine reversed because evidence did not support constructive possession of drugs found in motel bathroom registered to another person even though appellant admitted using methamphetamine two days before because ingestion of drugs is not evidence of possession (People v. Morales (2001) 25 Cal.4th 34, 44-45), opportunity of access to drugs without more is not evidence of possession (People v. Redrick (1961) 55 Cal.2d 282, 285), and false statements, while they might show consciousness of guilt, can't be used independently to prove elements of the crime (People v. Mendivil (1961) 194 Cal.App.2d 758, 761). (I) DKR

Bookout, Susan: In re Mike G., A Minor, D047307.
Reversed for failure to give proper notice pursuant to the Indian Child Welfare Act. (I) ACS

Buckley, Stephen & Buckely, Christian: P. v. Hewitt, E036909.
Court held sentences for assault against two of the victims should be stayed rather than run concurrently with appellant's sentences on the robbery counts relating to the same victims, because the assaults constituted an indivisible course of conduct with the robberies and were a means of accomplishing the robberies. (I) LAR

Greenberg, Mark: P. v. Endita, D045683.
Two counts (assault with intent to commit rape and assault with intent to commit mayhem) are reversed, as they are lesser included offenses of attempted rape and aggravated mayhem for which appellant was also convicted. (I) HCC

Levy, Richard: P. v. Cortez, G034942.
Attorney General conceded and Court of Appeal agreed that trial court erred in imposing parole revocation fine where appellant was sentenced to life in prison without the possibility of parole. (I) DLN

Wells, Mary: In re Donald C., A Minor, E037650.
Remand to trial court to exercise its discretion pursuant to Welfare & Institutions Code, section 731 re: setting the minor's maximum term of confinement. Court is also directed to stay Penal Code section 12022.7, subdivision (a) enhancement on counts 1 and 2. (I) PED

Barnstein, David: In re Joseph S., A Minor, G035788.
Remanded for trial court to prepare an amended minute order which accurately reflects an oral condition of probation ordered by the court. (A) PED

Ulibarri, Patricia: P. v. Taylor, E036472.
Trial court erred in referring the calculation of custody credits to the probation department. (I) RBB

Kelly, Laura: P. v. Madrigal, D046146.
The Court of Appeal reversed a conviction of grand theft from an employer finding that appellant was deprived of a fair trial due to the admission of extensive evidence of appellant's low-income status coupled with the prosecutor's reliance on that evidence to argue appellant had a motive to steal. (A) APJ

Kelly, Laura: P. v. Colton, G0352370.
Reversed with directions to grant Colton's motion to suppress evidence. Trial court erred in denying motion to suppress because (1) the officers' actions exceeded the bounds of a consensual encounter and resulted in Colton's unlawful detention and (2) the People failed to show that an independent intervening event purged the taint of the illegal detention such that the evidence obtained from a safe in a motel room with a key found on Colton after his arrest should have been suppressed. (A) AMJ

Weiss, Lizabeth: P. v. Gomez, E036495.
Three year prior prison term under Penal Code section 667.5, subdivision ( c)(21) stricken, as there was no prior strike conviction alleged or proven. Further, consecutive eight month term imposed for unlawfully taking vehicle was stricken pursuant to section 654, as that offense was part of the burglary and committed pursuant to one objective. (I) CMS

Braden, Julie: In re Brianna Z., A Minor, D047540.
The Court of Appeal reversed the termination of parental rights in this step-parent adoption case finding that the trial court abused its discretion under the Uniform Child Custody Jurisdiction and Enforcement Act by failing to communicate with an out-of-state court (Colorado) where custody proceedings had previously been initiated. The Court of Appeal's decision was made after review of supplemental briefing requested by the court as this issue was related to but different from an issue raised on appeal. (I) APJ

Tavano, Joseph: In re Paul C., A Minor, D047539.
Family Code section 7822 termination order reversed because trial court did not have subject matter jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act to change Mexican custody order. Neither the minor or the parents had a significant connection with California other than mere physical presence at the time the petition was filed. (I) DKR

King, Nancy: P. v. Pruitt, E036355.
The Court of Appeal reversed appellant's conviction of a violation of Health & Safety Code section 11352, subdivision (a) and his resulting sentence of 25 years to life under the "Three Strikes Law." The Court agreed the prosecutor committed misconduct in proceeding to discourse with appellant, after appellant had been appointed counsel to represent him. Appellant had been an eyewitness to a double homicide and the D.A. called appellant as a witness in the preliminary hearing - and appellant appeared without counsel. Defense counsel in the homicide case began to question appellant about his current case - and the trial court stopped the proceedings. Subsequently, through newly appointed counsel, appellant moved for a dismissal of his case on the grounds of government misconduct, and had a declaration from first trial counsel. The motion was denied, but the Court of Appeal was reversed and remanded the case for special proceedings. (I) LAR

Blake, Christopher: In re Cameron C., A Minor, E038881.
Reversed in part and remanded with directions. Minor raised on appeal that the juvenile court lacked the jurisdiction to impose commitment terms for two previous Welfare and Institutions Code section 602 petitions in which jurisdiction had been terminated and requested a reduction in the maximum term ordered. Court of Appeal found record unclear and to err on the side of caution it remands the matter to allow the juvenile court to determine which of minor's previous San Diego petitions were dismissed and which one were transferred to the jurisdiction of the Riverside juvenile court. (I) AMJ

Andreoni, Patricia: P. v. Crank, E037865.
The Court of Appeal found the trial court erred in denying the Penal Code section 1118.1 motion as to count seven (Pen. Code, sec. 288) because there was insufficient evidence to sustain that count and reversed that count. Evidence showed appellant asked the minor for a birthday kiss and she kissed him on the cheek then left the room. (I) LAR

Devore, Mark: P. v. Rangel, G035366.
Remanded for the trial court to correct errors which were present in both the oral pronouncement of judgement and the abstract. (I) LAR

April 2006

Bostwick, James: In re Abel C., A Minor, E038596.
Maximum term of confinement for juvenile reduced to nine years. (I) PED

Barry, Leslie: In re Rashad T., A Minor, E038310.
Court of Appeal reversed the juvenile court's denial of grandmother's request for de facto parent status. The Court of Appeal also reversed the order removing child from grandmother's home without notice or an opportunity to be heard. In the tentative opinion, the court had opined that even though the de facto parent request should have been granted, grandmother had no rights with regard to the child's removal, because she was not granted de facto parent status. Apparently, appellate counsel was able to persuade the court with respect to the removal issue at oral argument. (I) APJ

Levy, Richard: P. v. Montes, E036356.
Carjacking sentence ordered stayed pursuant to Penal Code section 654, because the jury found true a special circumstance attached to a murder count that appellant committed the murder during the carjacking. The nine-year carjacking sentence, imposed consecutively to the life without parole sentence for the murder, was ordered stayed. The $10,000 parole revocation fine was stricken because of appellant's sentence of life without parole. (I) DKR

Hart, Mark Alan: P. v. Whitson, E036356.
Carjacking sentence ordered stayed pursuant to Penal Code section 654, because the jury found true a special circumstance attached to a murder count that appellant committed the murder during the carjacking. The nine-year carjacking sentence, imposed consecutively to the life without parole sentence for the murder, was ordered stayed. The $10,000 parole revocation fine was stricken because of appellant's sentence of life without parole. (I) DKR

Stuetz, Jeffrey: P. v. Gutierrez, E036676.
Appellant was charged with several counts pertaining to an incident in which he fired in the direction of a garage while people were in the driveway. Two “nickel” priors and two strikes were admitted. At sentence, the court indicated initially it would impose concurrent terms for the convictions, until the prosecutor informed the court it could not do so because of the strikes. Consecutive terms were therefore imposed. On appeal, the Court of Appeal observed that under the strikes law, concurrent terms are permitted if the offenses were committed on the same occasion or arose from the same set of operative facts. It concluded the trial court erred in believing it was required to impose consecutive terms for the assault counts and, because the trial court had previously indicated it would have imposed concurrent sentences, it modified the sentence to provide for concurrent terms. (I) CFS

Lathrop, Stephen: P. v. Sawkow, E037156.
Court of Appeal ordered the modification of the abstract of judgment to delete reference to two Penal Code section 667.5, subdivision (b) enhancements which had not been alleged. (I) HCC

Stralla, Ava: P. v. Perez, E037753.
Defendant was convicted of two counts of attempted robbery, and one count of assault with a deadly weapon (ADW). Jury found knife use allegation true as to all three counts. The ADW count was deemed the principal term, and one year was added for the knife use; count 1 was ordered to run consecutive to the ADW count, and the court imposed a consecutive one-year term for the enhancement as to that count. Respondent conceded error and court ordered modification of the abstract. Because count one was a subordinate term, no more than 1/3 the enhancement could be imposed. (I) CFS

Mallinger, Kathleen (Fa); Booth, Christopher (Mo); Fabian, Carl (Mi); Braden, Julie (Mi): In re Justice W., A Minor, D047090.
Order terminating parental rights is reversed where the county failed to comply with ICWA. (I) LKH

Erickson, Kristin: P. v. Muñoz, G034265.
Trial court violated appellant’s Sixth Amendment right to effective assistance of counsel by denying his motion to relieve his retained counsel after the trial but before the judgment. Judgment reversed, and when new counsel appointed, the case shall proceed from the point where appellant originally sought to discharge his attorney. (A) LAR

Cohen, Howard: P. v. Brown, D045453.
Reversed and remanded for new trial. Appellant represented himself in a first trial which resulted in a hung jury. Prior to a second trial, he requested a transcript of the entire first trial, including opening statements, all witnesses, and closing argument. The trial court reluctantly gave him the testimony of two of the five witnesses. During the re-trial, when he attempted to impeach a witness whose previous testimony had not been given to him, the prosecutor objected on the basis appellant was not impeaching properly, i.e., not using a transcript. The trial court then authorized the provision of the transcript for that witness but denied appellant's request for a continuance in order to become familiar with it. Based upon People v. Hosner (1975) 15 Cal.3d 60, the Court of Appeal concluded that the failure to provide an indigent defendant a full transcript of an earlier trial in the same prosecution requires automatic reversal. (ADI) HCC

McKinney, David: P. v. Mendiola, D045566.
The evidence that the primary activity of a criminal street gang was one of the four offenses specifically alleged -- murder, carjacking, robbery, or shooting from a vehicle -- was insufficient to prove that any of those particular offenses was a primary activity of the gang. A true finding under Penal Code section 186.22, subdivision (b)(1) was reversed and its ten-year term stricken. (I) HCC

Roth-Douquet, Kathryn: P. v. Nguyen, D046254.
Conviction of assault with a deadly weapon was reversed for insufficient evidence where defendant held a barbell over his head and threatened the alleged victim, but then threw the barbell to the floor, away from the victim. The court found the evidence was insufficient to establish assault as defined in CALJIC No. 9.00, i.e., an act which would by its nature probably and directly result in the application of force to a person. The court added that the evidence might have supported the McMakin theory of assault (assault by conditional threat), but the verdict could not be upheld on this ground because jurors were not given the McMakin instruction (CALJIC No. 9.00.1). (I) NFA

Riggs, Brent: P. v. Tia, G035072.
Appellant's convictions for petty theft with a prior are reversed where prosecution was barred by the "two-dismissal rule." The case began as a misdemeanor complaint, which the prosecution later dismissed when it filed the case as a felony. The first felony complaint was dismissed upon the granting of a Penal Code section 995 motion. The second felony prosecution commenced and resulted in the jury finding appellant guilty of two counts of petty theft with a prior. Appellant's eight prior strikes were dismissed by the trial court pursuant to Penal Code section 1385, subdivision (a). While this appeal was pending, counsel filed a motion for bail pending appeal in the trial court. When the motion was denied, counsel appealed the denial in the Court of Appeal. The appellate court reversed the trial court's ruling and ordered the superior court to set bail. Thereafter, the client was released on bail. (A) LKH

Marshall, Marilee: P. v. Roberts, E038592.
Court of Appeal reversed vehicle theft conviction for insufficient evidence where the evidence only showed that appellant was apprehended while a passenger in a stolen vehicle driven by an acquaintance, without any evidence appellant knew the vehicle was stolen. (I) NFA

Scott, Terrence: P. v. Lewis, E035918-01.
Criminal street gang ten-year terms (Pen. Code, § 186.22, subd. (b)), erroneously imposed in addition to an indeterminate life sentence, ordered stricken. (I) HCC

Shudde, Athena: P. v. Washington, E035918-02.
Criminal street gang ten-year terms (Pen. Code, § 186.22, subd. (b)), erroneously imposed in addition to an indeterminate life sentence, ordered stricken. Additionally, various inaccuracies in the abstract of judgment ordered corrected. (I) HCC

Bauguess, Susan: P. v. Range, E037465.
Attorney General conceded and Court of Appeal agreed that appellant was entitled to an additional 38 days of pre-sentence custody credits. (I) DLN (for BCT)

Blair, Janyce: P. v. Lerma, G034152-01.
Murder convictions reversed because in defendants' joint jury trial, admission of Lerma's and Crawford's redacted statements to police implicating all three defendants constituted Aranda/Bruton error violating each defendant's Sixth Amendment confrontation right. (I) BCT

Weisman, A.M.: P. v. Guzman, G034152-02.
Murder convictions reversed because in defendants' joint jury trial, admission of Lerma's and Crawford's redacted statements to police implicating all three defendants constituted Aranda/Bruton error violating each defendant's Sixth Amendment confrontation right. (I) BCT

Scott, Terrence: P. v. Crawford, G034152-03.
Murder convictions reversed because in defendants' joint jury trial, admission of Lerma's and Crawford's redacted statements to police implicating all three defendants constituted Aranda/Bruton error violating each defendant's Sixth Amendment confrontation right. (I) BCT

Tetreault, Nancy: P. v. Valenzuela, G034725.
One year enhancement for being armed with a firearm ordered stricken because 10-year enhancement for firearm use also imposed. (I) PED

Jauregui, Anna: In re R. Clayton, on Habeas Corpus, D046040.
Judgment vacated and prior strike conviction dismissed. The prior strike, which petitioner admitted as part of a plea bargain, was invalid, because it was determined that petitioner did not commit that offense. (ADI) AMJ

Smith, Laurel Nelson: P. v. Wilson, D046198.
Two felony child endangerment counts reversed, because trial court failed to instruct on misdemeanor version of the offense and it is reasonably probable that the jury would have acquitted on the greater offense and convicted on the lesser if it had been properly instructed. (I) DKR

Blake, Christopher: In re Christopher A., A Minor, D047022.
A jury found appellant unable, as a result of a mental disorder, to provide for his basic needs for food, clothing, or shelter. Appellant argued the court erred by accepting the stipulated judgment submitted by the attorneys without first consulting him on the consequences of the agreement. Court of Appeal agreed and reversed, concluding it is solely the province of the court to determine the proper placement of the conservatee, the disabilities to impose, and the duties and powers of the conservator. Hence, a court may not accept a stipulated judgment on these issues without first consulting the conservatee and obtaining on the record his express consent (I) LAR for PED

March 2006

Margolis, Gideon: P. v. Muñoz, D045725.
Sentencing remand where trial court erroneously believed it was required to impose a consecutive sentence under the three strikes law, and where the court's implied finding under Penal Code section 654 was compromised by its erroneous belief. (I) RBB

Hee, Lynelle: P. v. Ruiz, E037728.
Appellant's conviction for receiving a stolen vehicle reversed where a reasonable jury could have found that the receiving was part of the vehicle taking. Appellant's conviction for vehicle taking remains while the conviction for receiving is reversed. (ADI) LKH

Gambale, Jennifer A.: P. v. Gayton, G034527 / G035629.
PUBLISHED. Petition for writ of habeas corpus based on ineffective assistance of counsel at probation revocation hearing granted, where attorney failed to review copy of defendant's probation file despite diametrically opposed stories of probation officer and defendant. File revealed probation officer's version was "brutally incorrect" and supported defendant's version. Although attorney spoke with probation officer, reviewing the file was the basic step to test attorney's apparent assumption his client, not the probation officer, was lying. Opinion also notes that, although the primary obligation to review the file was counsel's, the prosecution bears responsibility for the evidence it offers and the court may have had a duty to order the file produced when the evidence became so hotly contested. Upon subsequent application by attorney, court ordered early finality of opinion and directed petitioner's release from state prison the following day. (A) DLN

Koryn, Daniel: P. v. Padilla, E037146.
Abstract to be corrected to reflect the proper amount of presentence custody credits. (I) LAR

Fields, Lori (Father); Gentry, Jacqueline (Minor): In re Danielle C., a minor, E037924.
Visitation order reversed and matter remanded to the trial court to issue a visitation order which specifies the frequency and duration of the visits. Court found that the trial court had improperly delegated its authority to the minor by ordering visitation to occur at the minor's "insistence." (I) LKH

Cilli, Gregory: P v. Blakely, E038062.
Affirmed as modified. Trial court violated Penal Code section 654 in failing to stay the sentence for conviction for possession of ammunition by a prohibited person where time was ordered on the conviction for possession of a firearm by a felon. (A) AMJ

DuNah, Patrick: P. v. Fuller, E037656.
Vehicle theft count reversed where defendant also convicted of receiving same property. (ADI) PED

Norris, Ronda: P. v. Salazar, E037255.
Case remanded to allow lower court to make a determination as required by Penal Code section 1203.1b of appellant's ability to pay presentence probation costs. (I) BCT

Lankford, Valerie: In re Patricia M., A Minor, D046773.
Order terminating parental rights reversed because county failed to give proper notice to appellant of the permanency planning hearing. Notice was mailed to the address of another person with a similar name to appellant's. The Court of Appeal rejected the government's argument that because appellant "showed virtually no interest in the case" the failure to give notice was harmless and ordered a remand for a new hearing. (I) DKR

Kraft, Rudy: P. v. Lau, E038516.
Seven additional days of credit awarded based on correct calculation of days in custody. (I) HCC

Rollo, Sharon: In re Kimberly G., A Minor, E038324.
Termination of parental rights reversed because trial court failed to consider the children's wishes prior to entering an order terminating rights. No evidence in the record allowed the court to infer their wishes, requiring reversal and remand for DPSS to prepare an assessment that complies with the requirements of section 366.21, subd. (i), and to hold a new hearing pursuant to 366.26 at which the court shall consider the children's wishes. (I) CMS

Blair-Loy, David: P. v. Roquemore, D045841.
Case reversed for prosecutorial misconduct where prosecutor misstated during closing argument the definition of proof beyond a reasonable doubt, by equating the standard with what "makes sense". The court also concluded the trial court committed error when it explained general intent to the jury as equivalent to ta drive negligently failing to stop at a stop sign or red light. (A) MRR

Grove, Kimberly: P v. Green, G033213-02.
Court of appeal reversed two counts as lesser included offenses within other counts: simple kidnaping was an LIO of kidnaping for rape; and assault with intent to commit forcible oral copulation was an LIO of forcible oral copulation. (I) NFA

Marshall, Gregory: P. v. Dominguez, G033213-01.
Court of appeal reversed two counts as lesser included offenses within other counts: simple kidnaping was an LIO of kidnaping for rape; and assault with intent to commit forcible oral copulation was an LIO of forcible oral copulation. (I) NFA

Cochran, Janette: In re Erica L., D047201.
Order terminating jurisdiction reversed and case remanded for re-determination of assignment of supervised visitation costs, where Mother ordered to pay costs, but oral pronouncement conflicted with written order and Mother had no notice or opportunity to be heard on issue of payment of therapeutic visitation costs. (I) DLN

Blair-Loy, David: P. v. Williams, D046150.
Defendant's strike prior is stricken where the trial court erroneously found the conviction for battery with serious bodily injury constitutes a serious or violent felony prior. The defendant had been previously convicted of battery with serious bodily injury, but the jury found the great bodily injury allegation not true. The sentence is stricken, and the case remanded to the trial court for re-sentencing. (A) LKH

Kopas, Marleigh: P. v. Nunez, G034782.
Judgment reversed. Trial court erred by failing to instruct sua sponte as to the elements of aiding and abetting, after the prosecution told the jury during rebuttal that defendant would be guilty if he participated in the burglary in any way. Error not harmless where the only evidence connecting defendant was a fingerprint and he offered an explanation for that. (I) AMJ

Missakian, Elizabeth: P. v. Markley, D045682.
Trial court erred in treating Penal Code section 646.9, subdivision (c)(2) (stalking with a prior) as an enhancement and imposing a sentence consecutive to the 646.9, subdivision (a) (stalking) conviction. Section 646.9, subdivision (c)(2) is an alternative sentencing scheme rather than an enhancement. (I) RBB

McKim, Joanna: P. v. Atwood, D045539.
Reversed in part and remanded for resentencing. Trial court erred in applying mandatory provisions of Penal Code section 667.6 subdivision (d) where Atwood was convicted of only one enumerated crime. Because the trial court was unaware that it possessed discretion to determine whether to impose a consecutive or concurrent sentence on count 2, rape by foreign object, the case must be remanded for resentencing. (I) AMJ

Rankin, David: P. v. Hopkins, E038238.
The trial court erred in granting probation by imposing an overbroad polygraph condition and requiring appellant to pay cases of the random polygraph testing. The case is remanded to the trial court with directions to limit the polygraph condition to questions related to appellant's crime and his sex-offender surveillance program. The order regarding costs is reversed and the trial court is required to determine whether appellant has the ability to pay if it chooses to impose the cost on remand. (ADI) DKR

Schaefer, Laura G.: P. v. Valdez, G035070.
Court of appeal reversed appellant's conviction of committing a lewd act on a child, finding appellant was denied his constitutional right to cross-examine the key prosecution witness on possible suggestive interviewing and bias. Court also found trial court abused its discretion under Evidence Code section 352 - trial court cited this section as an additional ground for denying cross-examination of the minor's communication with CAST therapist. (I) LAR

Chandler, Kate M.: In re Misty J., A Minor, E039008.
The court reversed and remanded for compliance with ICWA notice procedures. The court specified that after proper notice has been given, if the juvenile court finds that ICWA does not apply, the original order terminating parental rights shall be reinstated. However, if the juvenile court finds the minor is an Indian child, then a new Welfare & Institutions Code section 366.26 hearing shall be conducted in compliance with related federal and state law. (I) BCT

Staley, John: P. v. Abouchian, E038187.
Vandalism sentence stayed pursuant to Penal Code section 654 because vandalism resulted from transaction with single objective of burglary. (I) RBB

Acaldo, Linda: P. v. Johnson, E038002.
Appellant was convicted of possession of a loaded firearm in a vehicle/public place, carrying a concealed firearm and receiving stolen property. The trial court sentenced him to three consecutive terms. Court of appeal ordered the judgment modified by staying execution of the sentence on count two, as the trial court erred in imposing two separate sentences for a single act. (A) LAR

Blake, Christopher: P. v. Young, D046537.
Trial court's error in orally instructing the jury about a non-existent stipulation that defendant possessed a firearm requires reversal of two counts and a gun enhancement allegation attached to a third. (I) PED

Power, Richard: P. v. Johnson, E037089.
Because the enhancement attached to a subordinate term subject to the 1/3 the midterm rule of Penal Code section 1170.1, subdivision (a), the trial court erred in imposing a full three year great bodily injury enhancement under Penal Code section 368, subdivision (b)(2)(A). (I) RBB

Williams, Nicole: In re Megan M., A Minor, D047138.
Reversal for improper ICWA notice. (A) DKR

Tannenberg, Cheryl: P. v. Villareal, G035332.
Case remanded to the juvenile court for it to exercise its discretion in determining minor's maximum term in CYA. (Welf. & Inst. Code, § 731, subd. (b).) (A) LKH

Jog, Anita: P. v. Gleason, E038563.
Petition for habeas corpus granted and case remanded for re-sentencing. Court of Appeal found that the trial court violated appellant's rights under People v. Arbuckle (1978) 22 Cal.3d 749 when it ignored petitioner's repeated requests to be "sent to drug court" (where he entered his plea) for sentencing. Judicial officer who accepted appellant's plea had indicated a more lenient sentence (mid-term) than the sentence imposed by the erring court (upper term). On remand, judicial officer granted Prop. 36 probation. (ADI) APJ

February 2006

Ulibarri, Patricia: P. v. Pitzer, D044830.
Second degree murder conviction reversed. Appellant testified that, in fear of his life, he fended off the much larger and younger decedent who appeared to be in a rage. Pursuant to Evidence Code section 352, the trial court excluded expert opinion evidence that decedent was in a possible opiate-methamphetamine withdrawal and such state could produce rage and paranoia. Concluding that the expert opinion was admissible, the Court of Appeal further concluded the exclusion was an abuse of discretion and was prejudicial under the Watson standard. (I) HCC

Hee, Lynelle K.: P. v. Lain, D046325.
Case remanded to the trial court for a supplemental probation report and new credits hearing. At sentencing, appellant requested pre-sentence custody credits for a six month period in which he was incarcerated for the current offense as well as a parole hold. The probation report indicated that when appellant was arrested for the charged offense, he had an outstanding parole warrant for absconding. The trial court denied appellant credits from the time of arrest until the date his parole was discharged. In the appeal, court agreed to take judicial notice of documents from CDC, indicating that appellant was never violated. AG did not oppose the motion for judicial notice or the remand to the trial court. (ADI) LKH

Boyce, Robert: P. v. Gehrke, D042984-01.
One-year prior prison term enhancement (Pen. Code § 667.5, subd. (b)) was stricken on appeal where the same conviction was the basis for a five-year prior serious felony enhancement (Pen. Code, § 667, subd. (a)). (I) NFA

Lankford, Valerie: In re Baby Girl M., a minor, D046838-02.
Published reversal for juvenile court's failure to properly interpret Family Code section 7825. That section authorizes termination of parental rights when parent has been convicted of a felony, the facts of which prove parental unfitness to have future custody of child. Father's offenses of burglary and drug possession were insufficient to qualify under the statute. (I) ACS

Savage, Jennifer (Cruse); Koryn, Sylvia (Harris): P. v. M.T. Harris & A.C. Curse, E036807.
Unauthorized 15-year-to-life sentence imposed for premeditated, attempt murder corrected to reflect a life term with the possibility of parole after seven years. (ADI / I ) CBM

Ward, Paul: P. v. Correa, G032961.
The Court of Appeal reversed defendant's voluntary manslaughter conviction because the trial court instructed, pursuant to People v. Blakely (2000) 23 Cal.4th 82, 91, that the voluntary manslaughter does not require intent to kill if conscious disregard for life is demonstrated. Reversal was required because the facts in defendant's case occurred in 1997, pre-Blakely, when the law was that an unintentional killing done in unreasonable self-defense was involuntary manslaughter. Remedy was to reverse the conviction to allow the prosecution the option of retrying defendant on voluntary manslaughter, but to reduce the conviction to involuntary manslaughter if the prosecution opts not to retry defendant. (I) NFA

Christiansen, Mark L.: P. v. Diaz, G034370.
The Court of Appeal remanded for resentencing after appellant argued and Attorney General conceded trial court erred in imposing sentence for robbery in concert when the jury made no finding and there was no substantial evidence to support the "in concert" allegation. In addition, several false imprisonment and assault counts were required to be stayed pursuant to Penal Code section 654. (I) APJ

Jones, Sharon M.: P. v. Johnson, E036424.
Court held that appellant was improperly convicted of both unlawfully taking and receiving the same vehicle, because evidence showed only that appellant unlawfully took the vehicle and did not drive it separate and apart from taking it. Also, one of the two five-year terms imposed for his two prior serous felony convictions was unlawful, because his two prior strike convictions, which also constituted prior serious felony convictions, were not based on "charges brought and tried separately." Finally, the trial court erroneously believed it did not have discretion to impose concurrent rather than consecutive terms on counts 1 and 3, and, hence, the case was remanded for resentencing, because the trial court did not indicate it would have imposed consecutive sentences on those counts had it been aware of its discretion to impose concurrent sentences. (I) LAR

Torres, Steven A.: In re Israel A., A Juvenile, G034624.
Juvenile court erred because it did not expressly declare the minor's offense of assault with a deadly weapon as a felony or misdemeanor. (I) LAR

Kaiser, Donna (Mo); Rollo, Sharon (Fa): In re Tiffany B., D047001.
Both parents appealed from judgments terminating their parental rights, asserting that insufficient evidence supported adoptability finding, and that the trial court erred in determining that the Indian Child Welfare Act [ICWA] applied. Father filled out ICWA information forms indicating he had Oklahom Cherokee heritage, and that his father was a member of the Cherokee tribe in Oklahoma who had been part of the Trail of Tears; he further informed the social worker that his father had lived on reservations in Missouri as well. Mother told the court at detention that she had Luiseno Indian heritage. The Social Services Agency sent notices to the Bureau of Indian Affairs, the Keetoowah Band of Cherokee Indians, and the Eastern Band of Cherokee Indians. It did not send inquiries to any Cherokee tribes in any other state. The agency also sent notices to several local Luiseno tribes, and some indicated no tribal membership, but one tribe indicated the matter would be researched further. The notices were sent less than 10 days before the hearing. The Court of Appeal held the tribes were not provided with timely and effective notice; the notices were defective in several respects and, therefore, did not provide sufficient evidence from which the court could find the tribes had no interest in the proceedings. In addition to being sent only two days before the hearing, the notices provided the wrong information as to the child’s birth place and were not sent to the tribal chairpersons or tribal agents designated for service. (I) CFS

Fabian, Linda: In re Alexandra G., D046997.
Stipulated reversal for lack of proper notice of Welfare and Institutions Code section 366.26 hearing, where notice sent in English to Spanish-speaking mother and also sent to the wrong address. (I) DKR

Shorago, Alisa: P. v. Vargas, E036485.
Sentence imposed on two assault convictions stayed pursuant to Penal Code section 654, since appellant was punished for the same acts based on attempted murder convictions. (I) BCT

Bookout, Randall / Popper, Jamie: P. v. Harrison, E038120.
Trial court breached material component of plea bargain when it sentenced defendant to state prison without first obtaining a Penal Code section 1203.03 diagnostic evaluation. (ADI) RBB

Olsen, Nancy: P. v. Torres, E037640.
Trial court had reserved ruling on whether one of the alleged serious prior felony convictions constituted a serous felony. At sentencing, the parties and the court forgot about the reserved ruling and the court assumed it had been found to be a serious felony. Court of appeal reversed and remanded for a limited trial on whether or not the prior constituted a serious felony. (I) LAR

Perez, Shawn: In re Ryan B., A Minor, G035005.
Reversed. The evidence was insufficient to support the finding of the lesser charge of petty theft where trial court found the minor lacked the intent to permanently deprive and found instead that the minor intended to deprive the bike owner of an hour's worth of rental fees. Such intent is insufficient for the crime of theft. (A) AMJ

Ballantine, Jean: P. v. Sheller, E036402.
PUBLISHED. Trial court erred in admitting defendant's statements made after guilty plea to probation officer (before plea was withdrawn and defendant went to trial). The court should have excluded the statements, because defendant was entitled to be restored to status quo before plea. However, the error in this particular case was harmless. (I) DLN

January 2006

Whatley, Jerry: P. v. Arentz,J., E038478.
During pendency of appeal, upon request of appellant, trial court modified the sentence where the original sentence was unauthorized. A full consecutive six-year term for a Penal Code section 288, subdivision (a) offense was corrected to one-third the midterm (two years). (I) HCC

Khoury, Charles: In re Eddie A., D046013.
Trial court erred in failing to exercise its discretion under a recent amendment to Welfare and Institutions Code section 731, subdivision (b), allowing the court to commit a minor to the California Youth Authority for less than the adult statutory maximum. (I) RBB

Bostwick, James: P. v. Sanchez, E037528.
Conviction of resisting an officer (Pen. Code, § 148, subd. (a)(1)) is a lesser included offense of battery on a peace officer (§ 243, subd. (c)(2)). (I) RBB

Torres, Tonja: P. v. Osorio, E036373.
Consecutive firearm use enhancement (Pen. Code, § 12022.53, subd. (d)) stayed under section 654 where sentencing court imposed another firearm use enhancement for a crime in the same transaction. Ten-year street gang enhancement (Pen. Code, § 186.22) stricken as inapplicable where the defendant receives an indeterminate term. Instead of the ten-year enhancement, Penal Code section 186.22, subdivision (b)(5) provides for a minimum parole period of 15 years where the defendant has received an indeterminate term. (I) NFA

Mallinger, K., (Mo); Hook, W., (Fa); Braden, J., (Min); Chandler, K., (Grm): In re Richard B., D046613.
All parties and the Court of Appeal agreed that Indian Child Welfare Act (ICWA) notice was insufficient when it did not include known or easily obtainable information about grandparents. Court of Appeal reversed the termination of parental rights and remanded for proper notice and a new Welfare and Institutions Code section 366.26 hearing. If, at the new hearing, the court finds proper notice and no tribe indicates minor is an Indian child under ICWA, the juvenile court must reinstate all previous findings and orders. If minor is identified as an Indian child, juvenile court must conduct a new detention hearing and all subsequent hearings in accordance with ICWA. (I) APJ

Hook, William (Fa); Braden, Julie (Minors): In re Burgndee A., D046914.
Case remanded to the juvenile court for ICWA compliance. (I) LKH

Tillman, Bea: In re Rafael L., G035193.
Court remanded case to juvenile court to state a maximum term of confinement pursuant to Welfare and Institutions Code section 726. The juvenile court was also ordered to make an express determination pursuant to section Welfare and Institutions Code section 702 and rule 1488(e)(5) of the California Rules of Court, as to whether the true finding that appellant actively participated in a criminal street gang pursuant to Penal Code section 186.22, subdivision (a), is a felony or a misdemeanor. (ADI) BCT

Halka, Waldemar: P. v. Tavie, E036726.
Sentence for count two ordered stayed pursuant to Penal Code section 654, and abstract of judgment ordered amended to strike one five-year enhancement. The trial court imposed a sentence for count 2, kidnaping for the purpose of rape or robbery, concurrent to count 1, which charged forcible rape. Since the kidnaping was part and parcel of the same transaction, count 2 must be stayed. The jury also found true two five-year enhancements, and the court sentenced defendant to 10 years for the enhancements, plus 100 years to life for the substantive charges, under the section Penal Code section 667.61. However, the abstract stated he was sentenced to 10 years plus 110 years to life. The abstract was ordered amended. (I) CFS

DiGrazia, Lisa: In re David N., E038087.
Father appealed from a Welfare and Institutions Code section 366.26 hearing where the juvenile court ordered guardianship as the permanent plan for two minors and made visitation orders. The court of appeal reversed all orders entered after the section 366.26 hearing and ordered a limited remand for compliance with ICWA notice provisions. The court ordered that if, upon remand, the minors are found to be Indian children, then a new 366.26 hearing must be conducted in compliance with ICWA. However, if minors are found not to be Indian children, the original orders are to be reinstated, except that father's visitation orders as to one child must be reconsidered. (A) BCT

Hook, William: In re Dustin R., D046680.
The Court of Appeal reversed the termination of the father's parental rights in this Family Code section 7822 abandonment case. The mother, who was seeking the termination so that the child could be adopted by her husband, testified the father was current in his child support payments. In addition, because the mother cut off contact with the child and the police would not help the father enforce his visitation, insufficient evidence supported the court's finding of an intent to abandon the child. (I) CAG

Halka, Waldemar: P. v. Vasquez, E037327.
Convictions for mayhem and assault with a knife, during which defendant was alleged to have inflicted great bodily injury, were reversed following the respondent’s concessions that instructional error was committed. (Respondent, however, did not concede prejudice.) The court failed to read the unanimity instruction to the jury, which was necessary where there were at least three wounds inflicted under a prosecution theory that each cut related to a separate charge; however, the jury had hung on the third charge of aggravated mayhem, so one could not tell which of the three acts constituted the two counts of conviction. The assault conviction was further marred by the fact a defense witness provided a self-defense explanation for one of the stab wounds, and the same witness supplied a basis for the defense theory that one of the cuts was accidental. (I) CFS

Holman, William D.: In re Michael V., E037980.
Case remanded to juvenile court for determination of maximum term of minor's physical confinement to California Youth Authority (CYA) where court failed to exercise its statutory discretion to so determine pursuant to Welfare and Institutions Code section 731, subdivision (b). (A) DLN

Torres, Steven: P. v. Robinson, E036630.
Trial court incorrectly imposed a three year sentence, instead of the correct two year sentence, for violation of Penal Code section 136.1, subdivision (a) - dissuading a witness. (Sentence doubled per Strike prior, and ran full term consecutive per statute.) (I) LAR

Buckley, Christian: P. v. Jones, D046593.
Trial court incorrectly calculated presentence custody credits under Penal Code section 2933.1; abstract corrected to reflect the correct amount of credits (20 additional days). (A) LAR

Smith, Barbara A.: P. v. Pereau, D046071.
Prior prison term enhancements incorrectly stayed, instead of stricken; abstract corrected. (I) LAR

Pfeiffer, Rich (Mother); Lee, Konrad (Min.): In re MacKenzie W., E037579.
Case is remanded for ICWA compliance. (I) LKH

Wrubel, Sharon: P. v. Garcia, E036968.
Penal Code section 186.22, subdivision (b)(4)(A) enhancement cannot be applied to an attempted home invasion robbery, only to a home invasion robbery. Also, the court may impose either a Penal Code section 12022.53, subdivision (b) or a 186.22, subdivision (b)(1)(C) enhancement for a violent felony, but not both. (I) RBB

Shanahan, Maureen: P. v. Hyson-Banks, E037225
Sentence for conspiracy to commit robbery barred by Penal Code section 654, because appellant was also sentenced for robbery, the target offense of the conspiracy. (I) LAR

Bronson, Philip: P. v. Ramsuer, E037225.
Sentence for conspiracy to commit robbery barred by Penal Code section 654, because appellant was also sentenced for robbery, the target offense of the conspiracy. (I) LAR

Mallinger, Kathleen (Mother); Nichols, Diane (Father): In re Jacqueline P., D046687
PUBLISHED. Parents' petition for writ of mandate granted in emancipation proceeding. There was insufficient evidence that the minor was living apart with her parents' acquiescence or consent or that she was managing her own financial affairs. The court also held that emancipation proceedings constitute government interference with a parent's fundamental liberty interest in making decisions about the care, custody, and control of a child, such that the parent's federal due process rights are implicated, and that evidentiary hearings in emancipation cases should comply with minimal procedural requirements, such as the Evidence Code. (I) (ADI) DLN

Lathrop, Stephen: P. v. Reyes, E035995.
The sentence was modified with directions to the trial court to strike an enhancement pursuant to Penal Code section 12022.53, subdivision (c) (and to impose the stayed Penal Code section 12022.5 enhancement) where attempted manslaughter is not a qualifying offense under Penal Code section 12022.53. (I) HCC

Hill, Donal: P. v. Wilson, D045863.
$600 restitution fine is stricken where trial court previously imposed a $200 restitution fine as a condition of probation. (I) LKH

Klaif, Leonard: P. v. Ruben R., A Juvenile, G034536.
Gang enhancement reversed as to the misdemeanor count since the allegation under Penal Code section 186.22, subdivision (b)(1) can only attach to a felony. (A) LKH

Pfeiffer, Rich (Mother); Cochran, Janette & Rollo, Sharon (Minors): In re William M., E038391.
Parental termination order reversed and remanded to the juvenile court for ICWA compliance. (I) LKH

Fuller, Victoria: P. v. Crystal C., A Juvenile, E037594.
Case remanded to the juvenile court to determine whether the vehicle theft offense (Veh. Code, § 10851, subd. (a)) is a misdemeanor or a felony. (A) LKH

Simoncini, Carmela: P. v. Archuleta, D044689.
Special circumstance finding that murder was committed in the course of a robbery reversed, where the sole evidence supporting the finding was the fact that the defendant was found in possession of an item that had been inside the residence when the victim was killed. The court found the government failed to provide the jury with proof that Archuleta formed an intent to rob prior to or during the killing. (ADI) CFS

Halka, Waldemar, P. v. Sua: D045997.
In respondent’s brief, Attorney General argued that there was a sentencing error because the trial court made a true finding on a Penal Code section 667, subdivision (a)(1) prior, requiring that five years be added to defendant’s sentence. In his reply brief, counsel noted there was no unauthorized sentence because a five-year term was imposed, which could have related only to the enhancement. The Court of Appeal modified the sentence to strike the violent felony prison prior enhancement and directed that the sentence be corrected and the abstract of judgment be amended. (I) CFS

Schuck, John: P.v. Aguilar, G034985.
Reversed in part. Because the jury never rendered a complete verdict on a lesser included offense of count 5, the lesser offense must be reversed. Jury had found defendant not guilty on count 5 but forgot to turn in the guilty verdict on the lesser offense. The jury assented to their verdicts, and two days later the verdict on the lesser offense was found. At that later time, the court entered a guilty verdict. Also, restitution order to the Fire Authority reversed, because it was not a direct victim under People v. Martinez (2005) 36 Cal.4th 384. (I) AMJ

Arfa, Fay: P. v. Hernandez, G034099.
Judgment modified to grant a total of 485 days of pre-sentence custody credits, 94 days more than the trial court awarded at the original sentencing. (I) LKH

Margolis, Gideon: P. v. Bowie, E037862.
Abstract of judgment corrected to reflect the correct pronouncement of judgment. (I) AMJ

Devore, Mark S.: P. v. McCann, G035145.
At sentencing the trial court dismissed appellant's conviction for conspiracy to convince a witness to give false testimony because of insufficient evidence. The court meant to dismiss appellant's conviction for conspiracy to dissuade a witness from testifying. The Court of Appeal ordered the trial court to dismiss the dissuasion conspiracy count and noted it had no power to order the trial court to reinstate the erroneously dismissed false testimony conspiracy conviction. (I) DKR

Benedict, Amanda: P. v. Bateham, G035043.
$200 parole revocation fine imposed under Penal Code section 1202.45 stricken, because offense occurred prior to statute's enactment, and credits corrected because 15 percent limitation on appellant's credits under Penal Code section 2933.1 cannot apply to the offenses which occurred in 1988 and 1990. (I) MCR

Gabrielidis, Cristina: In re Jonathan Y., A Minor, G033210.
Appellant argued the court conducted a "slapdash" disposition hearing in which no facts were discussed and in which the court never stated it considered minor's background information or social study. The Court of Appeal agreed, ordering the case reversed and remanded for the trial court to conduct a proper disposition hearing, which includes consideration of a current social study report. (A) LAR

Weinberg, Allen: P. v. Harris, E036625.
Trial court directed to amend the minutes of the sentencing hearing and the abstract of judgment for companion case to make clear that the restitution fine originally imposed at the granting of probation, which is collectible by the county, is the only restitution fine imposed in the revocation of probation case. (I) LAR

Pritz, Danalynn: P. v. Ricks, E036212.
Conviction for altering vehicle identification numbers reversed for insufficient evidence. (A) PED

Koryn, Sylvia: P. v. Quintero, D044768.
Conviction for battery with serious bodily injury reversed, because it is a lesser included offense of aggravated mayhem. (I) PED

Haggerty, Edward J.: P. v. Diaz, G034417.
Court of Appeal reversed appellant's conviction under Penal Code section 186.22, subdivision (a), after finding it to be an offense necessarily included within firearm convictions (Pen. Code, §§ 12025 and 12031) which were elevated to felonies based upon appellant being an "active participant in a criminal street gang." Court found the gang offense to be a necessarily included offense under both the statutory elements test and the accusatory pleading test. (I) APJ

Pfiefer, Rich; Keller, Roni: In re Aly C., A Minor, G035466.
Reversal of juvenile court's finding that the Welfare and Institutions Code section 366.26, subdivision (c)(1)(a) did not apply, and remand for the court to reconsider the issue in light of the parent's current situation. (I) MCR

Needleman, Jeffrey: P. v. Gonzalez, D044916.
Two counts of conviction reversed for Miranda error. (A) PED

Klaif, Leonard: In re Joe Q., A Minor, E038095.
On appeal from a judgment committing the minor to the Youth Authority, the Court of Appeal remanded for a new disposition. The juvenile court had automatically selected the upper term in calculating the minor's maximum term of confinement, failing to recognize its discretion under Welfare and Institutions Code section 731, subdivision (b), to select a lesser term. (I) NFA

Williams, Nicole: In re Tevin A., A Minor, D046620.
In an appeal from the disposition hearing, the Court of Appeal reversed juvenile court's order which found compliance with ICWA. In this case, the mother and her children were members of the Sycuan Band which intervened in the proceedings. However, father had also indicated he had Indian heritage from an unidentified tribe and no information concerning father had been supplied in the agency's notices. Court of Appeal found that the failure was prejudicial, despite Sycuan's involvement in the case, because if the children were also members of another tribe, ICWA provides that the tribe with which the child has "more significant contacts" is the child's tribe for ICWA purposes (a finding the juvenile court would need to make). Further, under federal guidelines, if state law permits, more than one tribe may intervene in dependency proceeding. In a footnote, the Court of Appeal comments it was unable to find any California law restricting intervention to one tribe. (A) APJ