The unpublished opinions from the following cases can be viewed by visiting the Judicial Council Web site. The unpublished opinions remain on the Judicial Council Web site for 60 days from the date of the filing of the opinion.

December, 2006

Romero, Lynda – People v. Contreras, D047266 – Restitution fine, Credits – The Court of Appeal ordered a restitution fine stayed, since appellant had been sentenced to life without possibility of parole, as well as one additional day of time credit. (I) HCC

Staley, John L. – People v. King, D047999 – Lesser Included Offense – Reversed in part. Appellant was convicted of transportation and, under the accusatory pleading test, the lesser included offense of possession. Possession conviction reversed, because it violated the prohibition against multiple convictions. (I) AMJ

Fabian, Linda; Barry Leslie – In re H.G., D048741 – Parental Termination – Order removing minor from placement with her grandparents under Welfare and Institutions Code section 387 and the judgment terminating parental rights under Welfare and Institutions Code section 366.26 reversed. Court erred in failing to assess statutory criteria in view of the circumstances of the case pursuant to Welfare and Institutions Code section 361.3, in determining that current placement was not appropriate. In view of the success of minor's placement with grandparents and traumatic family circumstances under which the minor had unauthorized contact with father, trial court erred when it did not consider all of criteria of Welfare and Institutions Code section 361.3. Assuming arguendo the trial court properly found the relative placement was inappropriate pursuant to Welfare and Institutions Code section 361.3, the court erred when it did not hold a disposition hearing as required by rule 1431(e) (now rule 5.565(f)). (I) CMS

Vogelman, Monica – In re Marissa G., D048587 – SARMS Contempt – In reversing a SARMS contempt order, the Court of Appeal denied the Agency's motion to dismiss which was based on two Code of Civil Procedure sections. The court said those code sections were not explicitly made applicable to dependency, among other reasons. Father argued that the contempt findings were unsupported by the evidence because he was not advised in writing that diluted urine specimens were forbidden. The Agency argued that it was in writing – in the reporter's transcript. The Agency cited to In re C.T. which said that the reporter's transcript and written memoranda constituted a sufficient record of the conversations between the trial courts of two jurisdictions under the UCCJEA. The court found that case clearly inapposite. Plus, the reporter's transcript was prepared after the trial court found father in contempt. The Court of Appeal also noted that SARMS rules were not in the record, so it could not say whether SARMS rules addressed the issue of diluted specimens. The oral admonitions, even father's actual notice, did not satisfy the requirement of a written order. (I) CAG

Pfeifffer, Rich – Rita M. v. Superior Court, D049099 – Due process to foster parent – Child was placed with petitioner foster parent since he was an infant due to his parents’ drug use; Rita had cared for the minor’s older sister. Rita has other foster children, including children difficult to place due to behavior and other problems. Mother submitted on petition and did not comply with court-ordered services, so the matter was referred to a Welfare and Institutions Code 366.26 hearing at the six month review. All social worker reports noted that the child was thriving in Rita’s care. The termination hearing took place nearly a year later, and parental rights were terminated. Reports regarding Rita’s care and child’s circumstances were still glowing. However, nearly a year later, the department decided to remove the child because it discovered 11 CPS referrals. The referrals related to reports of discipline by Rita’s boyfriend, none of which was substantiated and of which Rita was never informed. (I) CFS

Henessey, Patrick – People v. Lewis, E031035 – Second degree felony murder – Second degree felony murder conviction reversed under People v. Howard (2005) 34 Cal.4th 1129, which held that reckless evasion of police (Veh. Code, § 2800.2) is not an inherently dangerous felony. The Court of Appeal had rejected this argument initially and affirmed, but after the decision in Howard, the court granted defendant's petition to recall the remittitur and reversed. (I) NFA

Torres, Tonja – People v. Camacho, E037402 – Insufficiency of Evidence – Where the evidence was that appellant was only an uncle by marriage to the minor, did not threaten or use physical force on the minor, and the minor did not fear appellant, the evidence was insufficient to establish that nine counts of molestation were accomplished by duress. The convictions were reduced to the lesser included offense, Penal Code section 288, subdivision (a). (I) HCC

Sheehy, Kevin – In re L.H., E038607 – Juvenile Sentencing – Remand for re-sentencing where juvenile court did not appear to be aware of it discretion to sentence minor committed to CYA to term less than theoretical maximum. (A) PED

De La Sota, Richard – People v. Soto, E039110 – Involuntariness of Plea – Court of Appeal reversed defendant's guilty plea conviction on the ground the trial court improperly induced the plea with a promise of leniency, rendering the plea involuntary. Prior to the plea, the trial court had told defendant that San Bernardino juries are "very conservative" and that the conviction rate there is very high. The court also told the defendant that if he pled guilty, the court at sentencing would consider "the fact that you aren't wasting the time of the Court [by requiring a trial]." Respondent conceded the latter statement was error, and the Court of Appeal agreed and reversed on this ground. (A) NFA

Rankin, David – People v. Smith, E039236 – Vargas Waiver – Remand to trial court for hearing on Vargas waiver, because trial court did not give appellant an opportunity to present evidence to show good cause for his failure to appear and the attorney who was appointed to represent him to determine whether grounds existed for a motion to withdraw the plea was not properly appointed to handle the Vargas hearing. (Staff)

Marshall, Marilee – People v. McGlory, E039345 – Sentencing, Three Strikes – Court of Appeal reversed a finding of a prior felony strike and remanded to permit the prosecution to retry the allegation. The prosecution established appellant had previously been convicted of battery with serious bodily injury (Pen. Code, §243, subd. (d)), but failed to establish appellant had personally inflicted injury on a person other than an accomplice, as required by Penal Code section 667.5, subdivision (c)(8), which enumerates "violent" felonies under the Three Strikes law. (I) NFA

Hinkle, Stephen – People v. Pereira, E039510 – Stay-Away Order; Penal Code section 654 – At trial, defendant was acquitted of residential burglary but convicted of misdemeanor trespass and vandalism. The defendant was sentenced to two consecutive one-year terms. The trial court also imposed a “stay-away” order. First, the Court of Appeal remanded to the trial court to exercise discretion properly in determining the length of time for the restraining order. Second, the Court of Appeal ordered the term for vandalism stayed pursuant to Penal Code section 654, since the vandalism (breaking a door) was the same act as the trespass (entering through the broken door). Third, the Court of Appeal ordered correction of time credits, an additional 358 days. Fourth, on the remand, the trial court is ordered to calculate the amount of monetary offset of excess time in custody toward the restitution fines. (A) HCC

Shulman, Corinne – People v. Ivins, E039552 – Insufficiency of Evidence – Evidence of a violation of Vehicle Code section 31 was insufficient, where appellant gave his parole officer false information, since section 31 is limited to circumstances where a peace officer is in the performance of duties under the provisions of the Vehicle Code. (I) HCC

Klaif, Leonard – People v. Lewis, E039672 – Penal Code section 1203.4 – Trial court’s denial of appellant’s Penal Code section 1203.4 motion to be released from penalties after successfully completing probation reversed. Trial court denied the motion based on Penal Code section 1203.4, subdivision (b), which states the section does not apply to Penal Code section 288 convictions. However, appellant pleaded guilty to attempted Penal Code section 288. Thus, Penal Code section 1203.4, subdivision (b) does not exclude appellant from obtaining relief. (I) CMS

Rehm, Linda; Mallinger, Kathleen – In re Kelli B., E039777 – ICWA --The court reversed termination of parental rights and remanded for limited purpose of compliance with the notice provisions of ICWA. If minors found not to be Indian children, judgment terminating rights reinstated. (A, I) BCT

Fabian, Linda – In re Erin S., E039835 – ICWA – Court of Appeal reversed termination of parental rights, because record does not show that notices were sent in compliance with the Indian Child Welfare Act after mother disclosed her great, great grandfather was Cherokee Indian. (I) APJ

Scott, Daphne Sykes – People v. Thompson, E039984 – Pet Probation Condition – Court of Appeal in a divided opinion found the pet condition of probation to be overly broad and violated all the three criteria set forth in People v. Lent. Justice Richli, however, dissented. (A) LAR

Evans, Suzanne – In re Nicholas C., E040024 – ICWA – The court found insufficient evidence that notice was given as required by the ICWA. The court reversed and remanded on a limited basis for the Agency to provide documentation of proper notices. If minor is not an Indian child, the original order terminating parental rights is reinstated. (I) BCT

Torres, Stephen – In re Jervice C., E040028 – Custody Credits – Remanded back to juvenile court to calculate minor's predisposition custody credits. (I) LAR

Hennessey, Patrick – People v. Edwards, E040119 – Sentencing/CRC – Because trial court failed to give sufficient reasons for denying a requested California Rehabilitation Center commitment, case remanded for court to exercise its discretion regarding the request and state reasons for its decision. (I) RBB

Mack, Jennifer; McLaughlin, Rob – In re V.G., E040432 – ICWA – Reversal for failure to give proper notice under the Indian Child Welfare Act. (I, A) ACS

Grove, Kimberly – People v. Vega, G035305 – Penal Code section 654 – Sentence of 25 years to life for violating Penal Code section 186.22, subdivision (a), street terrorism, is stayed pursuant to Penal Code section 654, because appellant also received 25 years to life enhancement on a separate count under Penal Code section 12022.53, subdivision (a), which, although a firearm enhancement, requires the specific intent to promote criminal conduct by gang members. (I) DKR

Vento, Christine – People v. Enciso, G035369 – Sentencing – On appeal from appellant's second degree murder conviction, the Court of Appeal remanded for a new probation and sentencing hearing where the trial court had incorrectly concluded appellant was presumptively ineligible for probation under Penal Code section 1203, subdivision (e)(3). That section applies where the defendant "wilful[ly]," i.e., intentionally, causes great bodily injury or torture. Here, the conviction did not establish such intent because the jury may have convicted on an implied malice theory, which does not require intent to cause injury. Nor did the trial court make a finding of intent to injure at sentencing. The Court of Appeal noted there was no defense objection to the court's use of this presumption at sentencing, but the court chose exercise its discretion to review the issue (see People v. Williams (1998) 17 Cal.4th 161-162, fn. 6) without deciding whether the appellant had waived the right to review. [Note: Williams is a great case to cite for the proposition that even where a party has waived the right to appellate review, the Court of Appeal may nonetheless review the issue. In Williams this rule was used to the benefit of the prosecution, but here it was used for defendant's benefit.] (I) NFA

Salisbury, William – People v. Cruz, G035671 – Penal Code section 654 --Imposition of concurrent term for burglary violated Penal Code section 654 because defendant committed burglary intending to commit murder. (I) RBB

Dodd, John – People v. Prum, G035683 – Parole – Petitioner, convicted in 1980 for first degree murder (and now 80 years old) was considered for parole. Two commissioners of the Board of Parole hearings heard his case and the decision was a tie. The matter was then referred to an en banc executive board meeting. After soliciting additional information from those concerned, the six members of the executive board denied parole. However, the executive board did not afford petitioner the full due process rights of a hearing but considered the meeting a review. The question before the Court of Appeal was whether the proceeding was a hearing requiring compliance with the procedural rights of Penal Code section 3041.5 or a review not requiring those rights. After considering inter alia that additional information was solicited and the legislative intent of the statute, the court concluded it was hearing requiring compliance with section 3041.5, granted the petition, vacated the denial, and ordered a new hearing in compliance with the statute. (I) HCC

DuNah, Patrick – In re Moises R., G037016 – Juvenile Sentencing --Maximum term of confinement incorrectly calculated in this juvenile case, where imposition of sentence for one term was precluded by Penal Code section 654. (Staff)

November, 2006

Boyce, Robert – People v. Simms, D047108 – Sentencing – Prison prior under Penal Code section 667.5, subdivision (b) stricken, because serious felony prior under section 667, subdivision (a) imposed for same prior conviction. (I) DKR

Polsky, David – People v. Booth, D047740 – Sentencing – Multiple sentencing errors and errors in the abstract of judgment ordered corrected. (I) PED

Buckley, Christian -- In re Alondra K., D048442 – Restitution, ability to pay – In juvenile delinquency case restitution fine under Welfare and Institutions Code section 730.5 stricken, because court did not expressly make finding re ability to pay. Such a finding is required by the statute, and the evidence was insufficient to support an implied finding that the minor had the ability to pay at this time. (A) CMS

Brisbois, Patricia – In re Anthony H., D048449 – Insufficient Evidence – True finding on receiving stolen property reversed, where defendant was also convicted of stealing the automobile and there was not sufficient evidence to demonstrate post-theft driving. Remand also to have court make on the record determination of whether driving or taking of a vehicle count is felony or misdemeanor. (A) (PED)

Mallinger Kathleen; Bookout, Susan – In re Rita A., D048924 – Post-termination placement removal – Post-termination of parental rights, the juvenile court authorized the Agency to do an emergency removal of the minor from grandmother's placement. Grandmother improperly appealed, but the court ordered the appeal to proceed as a writ under California Rules of Court, rule 38.2. Minor joined in grandmother's petition. The Court of Appeal reversed and ordered the juvenile court to return the minor to grandmother. The court concluded that the juvenile court erred when it proceeded to a hearing on the emergency removal from grandmother's care under Welfare and Institutions Code section 366.26, subdivisions (n)(3) and (n)(4), without determining whether an opposition to the removal had been filed and whether the parties and statutorily authorized participants received notice. The court further concluded that the allegation in the agency's petition for removal was not supported by substantial evidence, and the court's authorization of the emergency removal was not in minor's best interests. In addition, the agency's action in removing minor from her grandmother in the absence of an immediate risk to her physical or emotional safety violated Welfare and Institutions Code section 366.26, subdivision (n)(4) and California Rules of Court, former rule 1463.5 (now rule 5.728) and constituted a serious abuse of the agency's discretion. (I) (DKR)

Dodd, John – People v. Oates, E037177 – Jurisdiction, Remittitur – In an earlier appeal, the Supreme Court granted review and ultimately remanded the case to the Court of Appeal. After the second opinion by the Court of Appeal, appellant sought review, which was eventually granted. In the interim, before the Supreme Court granted review and without the issuance of a remittitur, the superior court purported to re-sentence appellant, based on the then Court of Appeal decision. Although the Supreme Court ultimately dismissed the review, in this appeal, appellant argued that the superior court was without jurisdiction, the People conceded, and the Court of Appeal agreed the judgment was void. (I) HCC

Lathrop, Stephen – People v. Palomino, E037679 – Gang-gun discharge enhancement – The reviewing court reversed a Penal Code section 12022.53, subdivision (d) allegation where the information alleged only that the defendant was a principal and at least one principal personally and intentionally discharged a firearm and proximately caused death. The trial court, however, had instructed the jury that the defendant was alleged to have intentionally or personally discharged the firearm. The jury’s true finding stated it found the defendant was a principal and at least one principal personally and intentionally discharged the firearm, which formed the basis for a 25-year-to-life term under Penal Code section, 186.22, subdivisions (b)(1) and (c), and for which he would not be eligible for parole for a minimum of 15 years. The court held that because the criminal street gang enhancement cannot be imposed unless the defendant personally used or personally discharged the firearm and because the jury did not find he personally used or discharged the firearm, the enhancement had to be stricken. (I) (CFS)

Polsky, David – People v. Matilen, E038178 – Penal Code section 654 – Defendant was convicted of both aggravated kidnaping (kidnaping for rape) and rape, oral copulation and sodomy. The Court of Appeal agreed that defendant could not be separately punished for the aggravated kidnaping count and hence stayed the sentence for that count. (I) LAR

Rankin, David – People v. Mosqueda, E038278 – Restitution – Victim restitution of $480 awarded to the San Bernardino County Auto Theft Task Force for wages paid to two officers on the car-theft sting is stricken, because government cannot recover restitution for investigatory costs. (S)

Cohen, Howard C. – People v. Karandos, E039011 – Penal Code section 654 – Where appellant was sentenced for inflicting corporal injury on a cohabitant, concurrent sentencing for making a contemporaneous criminal threat during the assaultive behavior was ordered stayed pursuant to Penal Code section 654. (S)

Gabrielidis, Christina – In re Ryan C., E039066 – Sex Offender Registration -- Affirmed as modified. The juvenile court erred in ordering minor to register as a sex offender pursuant to Penal Code section 290, because the specific offense that minor was found to have committed - digital sexual penetration - is not a statutorily enumerated offense for those juveniles who are being discharged or paroled from CYA. (A) AMJ

Cohen, Howard C. – In re Akinremi, E039270 – Withdrawal of Plea, Immigration Consequences – Petition for writ of mandate granted. Petitioner, a resident alien, had pleaded guilty to two misdemeanor counts of unlawful sexual intercourse. His defense counsel, however, had not correctly advised him of immigration consequences. Upon being processed for deportation, petitioner moved the trial court to withdraw his plea. The trial court concluded that defense counsel’s advice was ineffective and that petitioner would not have pleaded guilty but for that advice. Still, based on a misunderstanding of In re Resendiz (2001) 25 Cal.4th 230, the trial court denied the motion. Petitioner filed a timely notice of appeal but in the Court of Appeal rather than the superior court. The Court of Appeal did not recognize the notice of appeal as a notice and did not forward it to the superior court as required by statute but rather filed the notice in a pending appeal. Petitioner then filed a new notice of appeal in the superior court, but the appellate division dismissed the appeal based on the untimeliness of the second notice, in essence, ignoring the first. A petition for writ of habeas corpus was then filed in but summarily denied by the superior court. A new petition for writ of habeas corpus was then filed in the Court of Appeal. The Attorney General did not contest the underlying merits that the trial court had misapplied Resendiz, supra. Instead, the Attorney General argued that habeas relief was unavailable, since petitioner’s probation had expired and he was no longer in constructive state custody. Treating the habeas as mandate, the Court of Appeal concluded that the superior court had erroneously denied the motion to withdraw the plea and erroneously dismissed the appeal. The Court of Appeal granted mandate ordering the superior court to hear the appeal and to address the merits not inconsistently with the opinion. (S)

Smith, Laurel Nelson – People v. Stephens, E039707 – Sentencing – Where no substantial evidence supported the sentencing factor used by the trial court to justify the selection of the upper term (contrary to the court's claim, the police report did not reveal appellant had a weapon at the time of the claim), case is remanded for resentencing. (I) CBM

Dodd, John L – People v. Ross, E039874 – Motion for new trial – In a previous appeal, the Court of Appeal reversed on the basis that the trial court erred in not granting a motion for retrial when the trial court indicated it would have acquitted on one count if tried as a court trial but there had been sufficient evidence to warrant the jury’s verdict. The Court of Appeal remanded with directions to grant a new trial if the trial court disagreed with the verdict. At the reheard motion, the trial court iterated its statement that in a court trial it would have acquitted and, pursuant to the opinion, granted the motion. On an appeal by the People, the Court of Appeal concluded that the issues of law had been resolved in the first appeal and, based on the trial court's iteration that it would have acquitted, affirmed the order granitng the new trial. (I) HCC

Whatley Beckham, Sylvia – People v. Brito, G035265 – Instructional Error – Appellant's conviction for second degree murder reversed and remanded for a new trial. The trial court erred in giving conflicting instructions on the mental state required to prove conspiracy. One instruction (CALJIC No. 3.30) instructed the jury incorrectly that conspiracy was a general intent crime whereas another instruction (CALJIC No. 6.10.5) correctly instructed the jury that conspiracy is a specific intent crime. (I) LKH

Lathrop, Stephen M. – People v. Kennedy, G035290 – Penal Code section 654 – Appellant was convicted of stalking (Pen. Code, § 696.9, subd. (c)(2)), assault with means likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(2)), and making a criminal threat (Pen. Code, §422). Court of Appeal ordered the 16-month term for making a criminal threat (Pen. Code, § 422) stayed pursuant to section 654. Since the criminal threat was one of the acts relied upon on in proving the stalking charge, it was necessarily committed with the same intent and objective. (I) LKH

Devore, Mark – People v. Ludwick, G035624 – Penal Code section 654 – Appellant was convicted of both possession for sale of methamphetamine and transportation of methamphetamine, with respect to the same methamphetamine, in separate counts. At sentencing, he was ordered to serve a consecutive one-third the midterm sentence on the possession for sale count. On appeal, a Penal Code section 654 issue was raised as to the consecutive term, and the Attorney General conceded it should have been stayed. (I) CFS

McPartland, Michael – People v. Cassity, G036291 – Search and Seizure – Appellant came out of a motel room, and three officers basically surrounded him, asking if he would talk to them. The officers testified they had no suspicion appellant was up to any illegal activity. The officers took appellant’s wallet or ID, and appellant did not feel free to leave. The officers asked if appellant had drugs, and he said yes. Trial court made no express findings but denied the suppression motion. The Court of Appeal reversed, finding “Under the totality of the circumstances, where Cassity was surrounded by three armed officers, asked investigative questions, and deprived of his driver's license, we conclude he was seized for Fourth Amendment purposes.” (I) LAR

Peters, Gerald – People v. Cruz, G036483 – Penal Code section 654 – Affirmed as modified. The eight month sentence for street terrorism was stayed pursuant to Penal Code section 654. (A) CMS

October, 2006

Wass, Valerie – People v. Ramirez, D049541 – Hearsay; spontaneous declaration -- Although the majority of the court in a published opinion affirmed the judgment concluding that the error was harmless (the dissent found no error), the majority distinguishes the facts of the instant case (statement by a rape victim, who had been clearly injured and experienced stress) with those in People v. Raley (1992) 2 Cal.4th 870 to conclude that the statements were made in a deliberative process and did not qualify as spontaneous statements. (I) HCC

Smith, Laurel Nelson -- In re Joseph D., D047019 – Translation (admission of translated statements) -- Adjudication reversed where court erred in admitting translated out-of-court statements where People failed to establish the accuracy of the translations i.e., that the translated statements may fairly be considered that of the original speaker. (I) DLN

Staley, John L. -- People v. Gardner, D047412 – Evidentiary Error – Admission of Codefendant Statements. Affirmed in part, reversed in part, and remanded for resentencing. Admission of co-defendant's pretrial statements was an abuse of discretion without a limiting instruction as to appellant Gardner, the error was prejudicial with regard to count 3, receiving stolen property, and count 3 must be reversed. (I) AMJ

Popper, Jamie -- In re Bruce M., D047454, – Juvenile Probation Conditions – Court of Appeal reversed three probation conditions as unconstitutionally overbroad and vague with directions for the trial court to narrow them. The probation conditions at issue prohibited the minor from "be[ing] in any place where drugs or alcohol are being used," "call[ing] out" or challeng[ing] any person or group of persons for any reason," and "associat[ing] with any individual on probation." (S)

Blake, Christopher -- In re Daniel R., D047906 – Juvenile Probation Conditions – The juvenile court, as one probation condition, banned the minor’s entry to Mexico “under any circumstances.” The Court of Appeal in a published opinion concluded that the absolute ban was unconstitutionally overbroad and added the modification as suggested by the minor, i.e., “unless in the immediate custody and control of the parent or legal guardian and with prior Probation Officer permission. Minor shall report circumstances of entry to Mexico to Probation Officer upon his return.” (I) HCC

Hinkle, Stephen – People v. Pena, D047930 – Parole Revocation fine – Parole revocation fine reduced from $600 to $200, and the abstract of judgment ordered modified accordingly. (A) HCC

Buckley, Christian – In Re Rodney P., D048014 – Due Process (right to a fair tribunal) – In this juvenile delinquency proceeding, the judge told the parties he would not believe anything the minor said if he took the stand because he did not find him a credible witness. (This was before the minor even took the stand!) The judge said this several times and only reluctantly let the minor testify to present his defense of duress. The Court of Appeal found the judge’s bias deprived the minor of his due process right to a fair hearing and reversed the conviction. The court went on to decide other issues (fine inappropriate as judge did not find an ability to pay) and found the case not moot as jurisdiction in the case had been terminated during the pendency of the appeal, because no order had been made reversing the judgment or the fine. (A) LAR

Vogelmann, Monica; Bookout, Susan – In re Nathaniel D., D048445 – ICWA Notice – The court reversed the order terminating parental rights and remanded with directions. This is the third reversal in this case. The court found the trial court abused its discretion in denying Father's request for a continuance to resolve the ICWA issue. This case presents the rare circumstance where there is specific information that the minor may qualify for enrollment in the Cherokee Nation. In addition to the usual limited remand in ICWA cases, the court also provided that if the minor is deemed an Indian child, the court shall proceed in conformity with the ICWA, but if no tribe intervenes, the court is authorized to reinstate the judgment. (I) BCT

Dikes, Patti L. – In re Sean F., D048519 – Reversal of Foster Parent's De Facto Parent Status – The Court of Appeal found that the juvenile court abused its discretion in granting de facto parent status to foster parents who had cared for the children only three to six months and who had no unique information to impart to the court. Juvenile court had expressed reluctance about granting de facto parent status but felt obliged to because it thought the applicants met the criteria of California Rules of Court, former rule 1401(a)(8), now rule 5.502(a)(10). The Court of Appeal opinion reminded that simply because foster parents may fit the definition, the juvenile court need not grant de facto parent status if it would not be helpful to the proceedings. (I) APJ

Vogelmann, Monica – In re Martin C., D048539 – ICWA Notice – At detention, mother indicated she was unaware of any eligibility under ICWA, but that her grandmother was Cherokee. She provided grandmother’s married name, but did not know other information about her grandmother. The agency sent notice to the Bureau of Indian Affairs but did not contact grandmother to get additional information, despite having her telephone number and address. Although the Court of Appeal affirmed the findings that no beneficial parent-child relationship existed, it reversed for failure to comply with ICWA. Further, the court found the agency failed to comply with the ICWA requirement of filing receipts and the response letter from the tribe. However, the court refused to take judicial notice of post-judgment evidence showing the minor had been returned to San Diego from out-of-state by the adoptive family who were no longer willing to adopt the minor and refused to depart from its practice of issuing a limited remand. (I) CFS

King, Nancy – People v. Jose Ibarra, E031542 – Jury Selection – Conditional reversal and remand to the trial court for the limited purpose of allowing the prosecutor to explain his peremptory challenge of a juror. If the trial court determines the prosecutor is unable to provide a race-neutral explanation, then the trial court must grant appellant's Wheeler motion and set the case for new trial. (I) MRR

Bostwick, James R. – In re Abel C., E035896 – Juvenile Sentencing – Incorrect maximum term of confinement computation in juvenile/criminal case ordered corrected. (I) PED

Jones, Sharon – People v. Villaneda, E036670 – Sentencing – Three-year sentence on count 3 reversed, with the order to impose a misdemeanor sentence, as count three was a misdemeanor conviction. Consecutive sentences on counts 2, 4, 5, and 6 reversed, where the court mistakenly believed the sentences had to be imposed consecutively under Penal Code section 1170.15. Remanded for the trial court to determine whether consecutive sentences should be imposed and to provide a statement on the record justifying the consecutive sentences should the court re-impose consecutive sentences. (I) MRR

Lathrop, Stephen – People v. Prado, E037680 – Sentencing – A concurrent ten-year enhancement imposed under Penal Code section 12022.53, subdivision (b) ordered stricken where the underlying offense of attempting to dissuade a witness was not an offense listed under subdivision (a) of the statute and did not carry a life term in and of itself. (I) HCC

Salisbury, William R. – People v. Sanchez, E037723 – Coercive Jury Instruction – Judgment following a second degree murder conviction by jury reversed. Trial court gave erroneously coercive instructions to a jury deadlocked on the first degree murder charge and the lesser offenses of second degree and manslaughter, and the rebuttable presumption that the error was prejudicial was not rebutted. Appellant's opening brief acknowledged that attorney Alisa Shorago contributed significantly to the preparation of the brief. (I) AMJ

Shulman, Corinne – People v. Gurwell, E037822 – Lesser Included Offenses – Appellant was charged with two counts of Penal Code section 269, subdivision (a)(1) - based on a violation of section 261, subdivision (a)(2), forcible rape (counts 1 & 2); two violations of section 269, subdivision (a)(5), based on sexual penetration in violation of section 289, subdivision (a) (counts 3 & 4); two violations of section 269, subdivision (a)(3), based on sodomy in violation of section 286 (counts 5 & 6); and three violations of section 269, subdivision (a)(4) based on oral copulation in violation of section 288a (counts 7, 8, & 9). Defense requested the trial court instruct the jury on the underlying sex crimes (sexual penetration, sodomy, and oral cop) as lesser included offenses to the crimes charges in counts 3 through 9. The trial court concluded the sex crimes specified in section 269 were not lesser included offenses to the charged crimes, but rather were lesser related. On appeal, the court reversed as to counts 3 through 9, finding that based on the “accusatory pleading” test, the crimes were lesser included offenses as charged, and the jury should have been instructed on the underlying sex crimes. Justice Richli concurred specifying that the opinion was relying on the “accusatory pleading” test and not the “elements test.” Justice Richli also noted that the court’s analysis should have included and been extended to counts 1 & 2. (I) LAR

Romero, Lynda – People v. Reaza, E038773 – Penal Code section 654 --Defendant was driver of a vehicle involved in a drive-by shooting which killed one person and injured another. He was convicted of murder, attempted murder, discharging a firearm from a motor vehicle, discharging a firearm at an inhabited dwelling, and unlawful possession of a firearm by an ex-felon. Defendant challenged his conviction for discharge of the firearm from a motor vehicle, as well as the sufficiency of evidence to support the gang allegations. He also challenged various aspects of his sentence, including the parole revocation restitution fine. The Attorney General conceded that Penal Code section 654 was violated by the separate sentence for discharging the firearm from a motor vehicle and the accompanying gang allegation, and agreed the fine should be vacated. Although the court affirmed the convictions, it agreed that the same act of shooting from the vehicle formed the basis for four separate counts. There were separate victims respecting the murder, attempted murder, and the discharging at the inhabited dwelling, but there was no additional victim for the count relating to discharging the weapon from the motor vehicle. Thus, the sentence for that count must be stayed. The court also ordered that the parole revocation restitution find must be stricken where the defendant received a sentence of life without possibility of parole. (I) CFS

Miller, Gerald – People v. Newquist, E039806 – Motion to Withdraw Plea --The judgment is reversed and the matter remanded to the trial court to conduct a hearing on appellant's motion to withdraw the plea (Pen. Code, § 1018). Due process requires that the trial court hold a meaningful hearing on the motion. Here, the trial court failed to address the merits of appellant's motion, acting under the mistaken belief that it had already ruled that the motion was untimely. (I) LKH

Andreoni, Patricia – People v. Martin, G034016 – Custody Credits – Originally, the trial court believed that appellant was already serving a federal sentence. During the pendency of the appeal, it came to light that appellant had only temporarily been in federal custody and had not commenced a federal sentence based upon which the state trial court had declined to grant custody credits. Counsel filed a motion for additional credit which the trial court initially denied but eventually granted when the Attorney General conceded counsel’s assertion was correct. Credits were increased from 427 days to 1,713 days. (I) HCC

Weinberg, Allen; Matulis, Jean – People v. Vasquez & Pellecer, G034497 – Credits Calculation – Defendants contended and respondent conceded that custody credits were miscalculated. Abstract of judgment ordered modified to reflect accurate (increased) custody credits. (I) (HCC)

Dodd, John – People v. Au, G037511 – Restitution Hearing – Restitution order reversed where trial court violated appellant's statutory and constitutional rights to due process by entering the restitution order without first affording appellant notice of the amount sought or a hearing to contest the award. (I) MCR

Smith, Barbara – People v. Vu, G035831 – Penal Code section 654 – Where appellant was convicted of three counts relating to a killing – (1) conspiracy to commit murder; (2) first degree murder; (3) street terrorism, the trial court erred by imposing sentencing on all counts. Terms imposed for counts two and three were ordered stayed under Penal Code section 654. (I) (CBM)

Matsumoto, Ellen – People v. Ruiz, G035941 – Penal Code sections 667.5, subdivision (b) & 667, subdivision (a) – Case remanded for re-sentencing with directions to trial court to strike two prison prior enhancements (Pen. Code, § 667.5) which were imposed based upon the same prior convictions which were used to enhance the sentence as serious felony priors (Pen. Code, § 667, subd. (a). (I) APJ

Klaif, Leonard – People v. Ma, G036173 – Penal Code section 654 – Sentence for possession of firearm by felon stayed pursuant to Penal Code section 654, because appellant also punished by firearms enhancement on transportation of methamphetamine count. Substantial evidence does not support trial court's implied finding of separate intents or separate criminal acts.. (I) DKR

Juaregui, Anna – People v. Koziar, G036191– Sentencing, dual punishment – Affirmed as modified and remanded with directions. Appellant's sentence was improperly enhanced by three, rather than two, prior drug convictions under Health and Safety Code section 11370.2, subdivision (c). Two of those prior convictions arose from the same set of facts, only one enhancement is permissible to avoid dual punishment, and section 11370.2 contains no express exception permitting dual punishment under these circumstances. The clerk of the court is directed to amend the abstract of judgment to delete one of the three-year drug enhancements. The court also failed to calculate actual custody credits following a reversal and remand up until the date of the new sentence. (S)

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

September 2006

Fabian, Carl: P. v. Fulton, E038204. – Credit Calculation
Credits modified to give appellant 541 days of credit, rather than the 365 days ordered. (I) LAR

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

Schraer, George: P. v. Parra, G035083. -- No Topic
Attorney General conceded and Court of Appeal agreed that trial court erred in imposing parole revocation fine where appellant sentence to life in prison without the possibility of parole. (I) DLN

Rubin, Andrew: P. v. Phetdaoheuang, E039315. – Probation Conditions
A probation condition that appellant keep his probation officer informed of ownership of pets had no relationship to the crime (attempted taking of a vehicle), was related to conduct which was not itself criminal, and was not reasonably related to future criminality. Court of Appeal ordered the condition stricken. (I) HCC

Levy, Richard: P. v. Rodgers, G035669. – Inadmissible Evidence
Statement from defendant that "he'd rather shoot it out with the police than go to jail," ruled inadmissible propensity evidence as well as excluded pursuant to Evidence Code section 352. Error deemed not harmless under either Watson or Chapman standard. (I) PED

Cilli, Gregory: P. v. Bannerman, D047242. -- Probation Conditions; Attorney’s Fees
Affirmed in part; reversed in part. The trial court improperly imposed the payment of attorney fees and probation costs as a condition of probation, but they are construed by the reviewing court as non-conditions entered at judgment The trial court also erred in requiring defendant to pay attorney fees without following procedures to determine his ability to pay. The matter is remanded for the trial court to provide notice and an hearing on ability to pay. (A) AMJ

Williams, Nicole (Mother) & Mack, Jennifer (Father): In re Katherine M., A Minor, E039842. – ICWA
Termination of parental rights was reversed where insufficient identifying information of the relatives with possible Indian heritage was not contained in the SOC 318 forms sent to the Bureau of Indian Affairs and the tribes. In addition, no notice pertaining to one of the three children was sent. The court took additional evidence on appeal from the department as "extraordinary circumstances" made consideration of postjudgment evidence appropriate, accepting the department's proffer of two pages missing from the SOC 318 in the record. However, those two pages did not contain sufficient identifying information required on the form which could have been obtained from the father or the paternal grandmother. The reversal was limited to providing proper notice to the tribes, and if the children are not Indian children, the juvenile court was to reinstate the order terminating parental rights. (I) CAG

Prince, Diana (Father) & Handy Elizabeth (Minor): In re Ryan V., A Minor, D048680. – Stipulated Reversal; Parental Presence
Stipulated reversal achieved in this step-parent adoption case (free from custody and control under Fam. Code §§ 7820, 7824, subd. (b)(1)(B)), where trial court recognized its error in proceeding with the hearing to terminate father’s parental rights without father’s presence and attempted to recall its order but was unable to do so under Family Code section 7894. (I) CBM

Pfeiffer, Richard (Father) & Trop, Neil (Mother): In re Patricia E., A Minor, D048506. – ICWA
The court reversed the jurisdiction and disposition orders and remanded on a limited basis for compliance with the ICWA notice requirements. (I) BCT

August 2006

Vogelmann, Monica (Father), Pfeiffer, Rich (Mother), & Mallinger, Kathleen (Minor): In re Emileigh R. A Minor, D048324. - Ineffective Assistance of Counsel (IAC)
Court of Appeal granted father's habeas corpus petition, reversing juvenile dependency jurisdiction and disposition orders. Infant minor was detained after she was found to have bruising and multiple bone fractures, which treating doctor opined were from abuse. Agency filed a Welfare and Institutions Code section 300, subdivision (e) petition, and father was charged criminally with child abuse. Father told social worker he had caught minor in a near fall from a baby bathtub; father also admitted he had shaken minor in frustration to get her to stop crying, but he demonstrated how he protected minor's head with his hands when he shook her. Prior to the jurisdictional hearing, the results of a skin biopsy showed the minor has Osteogenesis Imperfecta ("OI"), also known as brittle bone disease. OI children can suffer bruising and bone fractures from normal handling. Further, a new examination of the minor showed she had suffered multiple new fractures while in the foster care. Despite these revelations, the doctor stood by his initial conclusion of abuse by the parents, but concluded the new fractures were the result of OI. Father, under pressure to cooperate with authorities in the hope of reunification, pleaded guilty to misdemeanor child endangerment in the criminal case and pled no contest to the section 300, subdivision (e) allegation at the jurisdictional hearing. Mother submitted, and the allegation was found true. Both parents appealed, and father filed a habeas corpus petition alleging his trial attorneys were ineffective in 1) not advising father that he could contest the dependency allegation despite his guilty plea to the factually less severe criminal charge; 2) failing to explain to father that a no contest plea would deprive him of the right to appellate review of the jurisdictional finding; and 3) failing to obtain a defense medical opinion to refute the treating doctor's dubious conclusion of abuse. Both mother and minor's appellate counsel supported father's position on habeas corpus. Court of Appeal agreed and granted habeas corpus relief, finding a more favorable outcome was reasonably probable absent the IAC by father's trial attorneys. Case remanded for father to be permitted to withdraw his no contest plea and be represented by new counsel. Appeals dismissed as moot. (I) NFA

DeGuzman, Jennevee: P. v. Urias, G035179. - Judicial Misconduct; Exclusion of Evidence; Instructional Error
Appellant's conviction for assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)) is reversed in full based upon judicial misconduct, erroneous exclusion of evidence, and jury instructional error. The matter is remanded for a retrial before a different judge. (A) LKH

Ballantine, Jean: P. v. Miller, E037596-01; Weinberg, Allen: P. v. Grinceri, E037596-02. - Stayed Sentence
Concurrent terms for assault and felony false imprisonment stayed per Penal Code section 654 because both offenses were committed with objective of robbery. (I) RBB

Booth, Christopher: In re Jamie P., A Minor, D047789. - Parental Visitation
Trial court abused its discretion when it reverted mother’s visitation from unsupervised to supervised visits because substantial evidence did not support its implied conclusion that minor’s well-being was at risk if her visits with mother remained unsupervised. (I) CBM

Kane, Greg: P. v. Derouen, D045999. - Sentencing Error
Sentence on the one-year prison prior under Penal Code section 667.5, subdivision (b) is stricken, because appellant also received a five-year term for the same prior under section 667, subdivision (a). (I) LKH

Finch, Dabney: P. v. Pugh, E038923. - Stayed Sentence
Aggravated three-year term for burglary, which was made concurrent to aggravated term for forgery, stayed pursuant to Penal Code section 654. Appellant had the same intent and objective in possessing forged check and entering store with the intent to use forged check to purchase merchandise. (I) CMS

Keller, Roni (Mother) : In re Gabriel G., A Minor, E039598. - ICWA
Limited remand for department to give notice in compliance with ICWA. If court determines minors are not Indians, the order terminating parental rights should be reinstated; if they are Indian children, termination is reversed and further proceedings are to be conducted in accordance with ICWA. (I) DLN

Keller, Roni (Father): In re Sally M., A Minor, E039077. - ICWA
Where minor was Indian child, trial court ordered to strike statement in termination order giving current caretakers preference over other applicants, because preference should have been given to extended family members, members of the child's tribe and other Indian families. (I) DLN

Hart, Mark: P. v. Jones, E038186. - Increased Punishment Following Appeal
Following a successful appeal and retrial, $10,000 restitution fine imposed under Penal Code section 1202.4 and $10,000 parole revocation fine imposed under section 1202.45 both reduced to $200 because those were the fines imposed following the first trial. (I) RBB

Romero, Lynda: P. v. Johnson, E037144. - Verdicts;Fines
Penal Code sections 186.11, subdivision (a) and 12022.6, subdivision (a)(2) enhancements stricken because not presented to the jury. Also, section 1202.45 parole restitution fine stricken because erroneously imposed in this life without parole case. (I) RBB

Petermann, Conrad: P. v. Hernandez, G035022. - Insufficiency of Evidence
Criminal threats conviction reversed where no evidence that victim heard defendant's threat or that it caused her to be in sustained fear. (I) DLN

Fabian, Carl: In re Angela P., A Juvenile, E039821. - Erroneous Dismissal
Order terminating juvenile dependency jurisdiction reversed and dependency proceedings reinstated where court abused its discretion in dismissing dependency proceeding summarily in absence of evidence and where hearing was not scheduled or conducted with proper notice or initiated under Welfare and Institutions Code section 388. (I) DLN

Tavano, Joseph (Father): In re Isaac S., A Minor, D048223. - ICWA
Father and mother appealed the denial of the minor’s Welfare and Institutions Code sectiton 388 petition [in which both had joined] which sought placement of the children with great-grandparents, who were not accorded preference because of the agency’s delay in completing the home evaluation, and the agency’s failure to give notice to Indian Tribes. The reviewing court affirmed the denial of the section 388 petition because by the time of the hearing on the petition, the children viewed the fost-adopt parents as psychological parents, but the court reversed the judgment because the agency failed to give notice to the Indian tribes. Both parents had stated in their paternity questionnaires that father had American Indian heritage through the Apache and Cherokee tribes, and the social worker was given the same information by the children’s paternal aunt. Nonetheless, trial counsel informed the court that any tribal affiliation was too attenuated to apply, and the juvenile court found ICWA did not apply prior to any notices being sent. (I) CFS

Vogelmann, Monica (Father); St. Julian, Andrea (Minor): In re Francisco W., A Juvenile, D047094 - ICWA
Termination of parental rights was reversed in this published case for insufficient notice under the ICWA. However, the court also held that a limited remand for the sole purpose of perfecting notice to the tribes was within its jurisdiction, consistent with the best interests of the child, and in keeping with fundamental principles of appellate practice. Additionally, a child, who has not been adopted after the passage of at least three years from the date the court terminated parental rights, may petition the juvenile court to reinstate parental rights. Thus, if the child becomes unadoptable sometime during the pendency of the appeal or the remand, the child has a remedy from legal orphan status. (I) CAG

Shorago, Alisa: P. v. Mageo, E037832. - Sufficiency of Evidence
Defendant was charged and convicted of multiple robbery counts, several assaults with a firearm, and making a criminal threat. However, the evidence as to one robbery count indicated the victim experienced no fear. The defendant had pointed a gun at the victim and told the victim to give him the money, which the victim did. The victim did not think the gun was real and stated she thought she was on a hidden camera show. Under the circumstances, while decisional law equates force with fear, in this case the victim of count 10 denied any fear. She gave the money to the defendant because her manager instructed her to do so. Thus, the conviction on that count could not be affirmed. (I) CFS

Mack, Jennifer and Keller, Roni: In re Chloe C., A Minor, E039036. - ICWA
Order terminating parental rights and limited remand for compliance with ICWA, including proper inquiry of paternal grandmother, notice provisions, and filing of required documentation with court, with termination order to be reinstated if court finds the children not to be Indian children. (I) DLN

Kirkpatrick, Debbie P.: P. v. Aloyian, E038137. - Proof of Prior Prison Enhancement
Case remanded for limited new trial on prison prior enhancement allegation, where no evidence appellant imprisoned as result of conviction alleged in information. Issue of whether prosecution should be allowed to amend the enhancement allegation is left to the trial court. (A) DLN

Stechel, Howard: In re Jordan G., A Juvenile, G036368. - Juvenile Disposition
Where minor was found to have committed a wobbler offense, the trial court did not declare the crime to be a misdemeanor or a felony, and nothing on the record indicated the court had exercised its discretion on this matter, case remanded for the misdemeanor/felony determination. (I) CBM

Blake, Christopher: P. v. Rodriguez, E039934. - Custody Credits
Additional actual custody credits awarded for period of time while defendant waited in county jail for re-sentencing. (I) PED

Williams, Nicole: In re Hailey C., A Minor, E039578. - ICWA
Limited reversal and remand for juvenile court with directions to order DPSS to comply with ICWA notice provisions and case law; judgment terminating parental rights to be reinstated if children are not found to Indian children following proper notice. (I) DLN

Dain, Anthony: P. v. Rowe, E038356. - Stayed Sentence
Punishment for two counts of child abuse stayed under Penal Code section 654 when sentence was imposed on the torture conviction, where the evidence did not identify a discrete act of torture different from the acts alleged as child abuse. (I) MRR

Kelly, Laura: P. v. Kuechler, E038892. - Instructional Error
Burglary conviction reversed where trial court sua sponte gave aiding and abetting instructions to a deliberating, deadlocked jury, without notice to counsel and without affording counsel the opportunity to argue the issue to the jury. There was no evidence presented to support the giving of the instruction, and the prosecution's sole theory was that defendant was the direct perpetrator of the burglary. (I) MRR

Hinkle, Stephen: P. v. Talton, D047680. - LIO Reversal
Court of Appeal reversed conviction for grand theft, because it is an offense necessarily included within the crime of grand theft from an elder. (A) APJ

Dodd, John: P. v. Williams, E037477. - Sentencing
Enhancements under Penal Code section 12022.53, subdivisions (b) and (c) stricken because they were not applicable to the underlying offenses. (I) DKR

Rand, Scott / Tillman, Beatrice: P. v. Beaty, E038065. - Non-existent Crime
At the close of the prosecution's case-in-chief, the trial judge granted appellant's motion for acquittal on the charged offense of assault, but reduced the offense to a purported lesser included offense of attempted assault. On appeal, the Court of Appeal reversed, holding that in California, there is no offense of "attempted" assault and the trial court's acquittal on the original charge barred retrial pursuant to Penal Code section 1118.2. (I/ADI) BCT

Frizzell, Doris: P. v. Eberle, D046127. - LIO Reversal
Conviction for assault with intent to commit rape reversed as LIO of rape conviction. (I) PED

Simoncini, Carmela: P. v. Smith, E037036. - On Bail Enhancements; Strikes Sentencing
At sentencing in a domestic violence case where the second incident occurred shortly after the defendant bailed himself out on the first incident, the court double counted the on-bail enhancement and then doubled it because the defendant had suffered a prior Strike conviction. The court agreed that terms for enhancement allegations are not subject to doubling provisions of the Strikes law and corrected the trial court’s error in double counting the enhancement before doubling it. (ADI) CFS

Owen, Thomas: In re Joshua H., A Juvenile., E039737. - Probation Conditions
Probation condition that defendant "[n]ot associate with known users or sellers of controlled substances nor be in any place where they are known to be used or sold" is overbroad and modified to specify that the controlled substances be either illegal or illegally-obtained. (A) RBB

Dikes, Patti: In re John M., A Minor, D047888. - Insufficient Evidence of Detriment; Interstate Compact on the Placement of Children (ICPC) Inapplicable
In a published reversal, the Court of Appeal held that the juvenile court erred in finding placement of the child with his father would be detrimental, abused its discretion in denying father's request for a continuance of the disposition hearing pending completion of a home evaluation through the ICPC process or some other means, and erred by concluding an ICPC report was required before placing the child with the father. (I) CAG

Weinberg, Allen: P. v. Vasquez, Matulis, Jean: P. v. Pellecer, G034497. - Credit Calculation
Defendants contended and respondent conceded that custody credits were miscalculated. Abstract of judgment ordered modified to reflect accurate (increased) custody credits. (I) HCC

Lee, Konrad: In re Gabriel E., A Minor, E039746. - ICWA
Court of Appeal reversed due to juvenile court's failure to ensure compliance with ICWA. In this case, the juvenile court relied only upon the social worker's representation that the ICWA question had been investigated and that no tribe would intervene. The record contained no evidence that documentation was provided to the court. The Court of Appeal rejected the count's invitation to find substantial compliance and reversed for compliance with the ICWA's notice requirements. (I) APJ

Newton, Joanne: In re Azariah U., A Minor, D047847. - Guardian Ad Litem; ICWA
In a published reversal, the Court of Appeal found the appointment of a guardian ad litem for the parent, a constitutional issue reviewed de novo, was error, but harmless beyond a reasonable doubt; no inference can be made that the parent was incompetent from evidence of mental illness; the ICWA notice was deficient as the responsibility to research the identity of any tribe does not lie with the Bureau of Indian Affairs, and the juvenile court erred when it did not wait 60 days for a response pursuant to California Rules of Court, rule 1439(f)(6) before finding the ICWA did not apply. (A) CAG

Weinberg, Allen: P. v. MacArthur, G035368. - Instructional Error
The conviction for receiving stolen property reversed, because the trial court failed to instruct sua sponte with a definition of "stolen" and "theft" including the intent requirement. (I) AMJ

Booth, Chris: In re Sean B., A Juvenile, D047929. - ICWA
Reversed for failure to give proper ICWA notice. (I) ACS

Furness, Laura: In re Tiffany S., A Minor, E040178. - ICWA
Order terminating parental rights for mother reversed and remanded to trial court with instructions to require agency to comply with notice provisions of ICWA. Reversal only a temporary victory because if, after proper notice, no Indian tribe claims Tiffany as an Indian child, the order terminating mother's parental rights will be reinstated. (ADI) LLF

Popper, Jamie: P. v. Tan, E039876. - Stayed Sentence
Pursuant to Penal Code section 654, judgment modified to stay concurrent sentence for receiving a stolen vehicle (Pen. Code, § 496d), where the trial court also imposed a sentence for operating a chop shop (Veh. Code, § 10801). (ADI) JLP

McLaughlin, Rob: In re Khyler F., A Minor, E039618. - ICWA
Reversal of termination of parental rights due to failure to give adequate notice under ICWA. (A) ACS

July 2006

Nelson-Smith,Laurel: P. v. Dualton, E038383. - Custody Credits
Based on recommendation of probation officer, court denied presentence conduct credits for time appellant spent in custody in Las Vegas awaiting extradition. Prosecution argued defendant was not entitled to credits until he waived extradition. Held: Denial of credits reversed. Pursuant to Penal Code section 2900.5, all days of custody, including days credited to the period of confinement pursuant to section 4019, shall be credited upon the defendant's term of imprisonment. In In re Watson (1977) 19 Cal.3d 646, 650-651, 654, the court held that, under section 2900.5, a defendant is entitled to credit for time spent in a foreign jail, regardless of the reasons for the delay such as resisting extradition to California. The defendant retains presumption of innocence prior to trial. (Id. at p. 651.) (I) CMS

Rankin, David: P. v. Correa, D047271. - Probation Conditions
Probation condition that appellant not own a dog with violent propensities is affirmed in part but reversed in part, because the condition is overbroad and does not include a knowledge requirement. Case is remanded to add knowledge requirement and to amend to comport more closely with trial court's objective of protecting probation officers. (ADI) DKR

Jog, Anita: P. v. O’Connor, D046037. - Sex Offender Registration
Court of Appeal originally dismissed this appeal for lack of a certificate of probable cause. While petition for review of the dismissal was pending, the Supreme Court decided People v. Hofsheier (2006) 37 Cal.4th 1185, which found, in agreement with the substantive issue of this dismissed appeal, that the mandatory registration requirement as applied to people convicted of oral copulation of a person under 18 (Pen. Code, § 288a, subdivision (b)(1)), violates equal protection. Appellant’s petition for review was granted and the case was remanded to the Court of Appeal for reconsideration. Court of Appeal deemed this appeal to be a petition for writ of habeas corpus and granted relief, striking the mandatory registration requirement and remanding the case for the trial court to determine whether the discretionary registration requirement should be imposed. (ADI) APJ

Caldwell, William: In re Memory V., A Minor, G036342. - Indian Child Welfare Act (ICWA)
Reversal for failure to inquire as to father's possible Indian status. Court held that "Nothing in this opinion shall be construed to prevent the father from filing a petition under section 388 if it is warranted by changed circumstances and the best interests of the child." (A) ACS

Bookout, Susan: In re Vanessa O., A Minor, E039533. - ICWA
Order terminating parental rights is vacated, and the matter is remanded to the juvenile court with directions to comply with ICWA. If no response is received, all prior findings and orders shall be reinstated. (I) LKH

Scott, Terry; Rubin, Andrew: P. v. Concepcion, E036353. - Presence of Defendant
In opinion certified for publication, defendant's involuntary absence from the courtroom during prosecution's presentation of evidence to support certain charges was structural error and required reversal of these convictions. (This result was a reversal of court's decision in tentative opinion.) (I) PED

Hinkle, Stephen: P v. Medina, D046883. - Search & Seizure; Attorney’s Fees
Because police officer's rationale for the inventory search of appellant's car, to find "something illegal or a dead body or something else inside the vehicle or drugs or something else," is precisely what has been found to be unconstitutional, trial court's denial of suppression motion reversed. In addition, where no substantial evidence supported trial court's finding appellant had the ability to pay the attorney fee award, and the reasonableness of the fees awarded, attorney fees award reversed and case remanded to trial court for proper determination. (A) CBM

Gilbert, Stephen: P. v. Villegas, E037952. - Insufficiency of Evidence; Sentencing Error
Appellant was evading police when he crashed his car. He exited the car with a gun and used his girlfriend as a shield from police. Court of Appeal reversed the kidnaping conviction for insufficient evidence of asportation. Offense reduced to attempted kidnaping. Further, the Penal Code section 12022.53 gun use finding on the kidnaping charge could not be imposed full strength, as the kidnaping was a subordinate count. Despite the wording of section 12022.53, subdivision (b), providing that the enhancement applies notwithstanding any other law, in People v. Moody (2002) 96 Cal.App.4th 987, the court concluded that section 1170.11, a more specific and later-enacted provision than section 12022.53, prevailed over section 12022.53, subdivision (b). Section 1170.11 provides that as used in section 1170.1, the term "specific enhancement" includes an enhancement under section 12022.53. Since section 1170.1, subdivision (a) provides that an enhancement on a subordinate count is subject to the one-third limitation, the court erred in not applying that provision to the section 12022.53 gun-use. (I) CMS

Braden, Julie: In re Sharae C., A Minor, D047452. - ICWA
Court of Appeal reversed for inadequate notice under the ICWA. Appellant-mother had informed the Agency that she might have American Indian heritage from an unknown tribe. The Agency sent notice to the Bureau of Indian Affairs, but listed the maternal grandparents as "unknown." Appellate counsel argued and the Agency agreed that the notice was inadequate, because the minor was living with the maternal grandfather whose information should have been included. (I) APJ

Torres, Tonja: P. v. Acevedo, G034816. - Sufficiency of Evidence, Burglary
Four convictions of residential burglary reversed because other than the defendant's possession of property taken during the burglaries, not even slight corroborating evidence connected him to the burglaries themselves. (I) RBB

Keiser, Susan: P. v. Deloza, E038367. - Custody Credits
Case remanded for new sentencing hearing so that trial court can resolve factual disputes regarding appellant's custody credits. (I) MRR

Nichols, Diane: P. v. Meltz, D047093. - No Topic
Attorney General conceded and Court of Appeal agreed that superior court erred when it found appellant's motion to withdraw his plea untimely and failed to hold hearing, where the motion was made within six months after the order granting probation. Matter remanded for hearing on the merits and determination of substitution of counsel. (ADI) DLN

Bronson, Philip: P. v. Massiet, D047176. - Proof of Strike Prior
True finding on strike prior is reversed and remanded for trial, because mere evidence of prior conviction of gross vehicular manslaughter provides insufficient evidence that appellant personally inflicted great bodily injury. (I) DKR

Willis-Newton, Joanne: In re Destiny B., A Minor, D047945 & D048542. - ICWA
Court of Appeal remands case for compliance with notice requirements pursuant to ICWA after agency and minors’ counsel concede noncompliance. Appellant brought petition for writ of habeas corpus containing information about the family’s Indian heritage. (A) ACS

Blair-Loy, David: P. v. Maldonado, E038052. - Sentencing
One-year prison enhancement alleged pursuant to Penal Code section 667.5, subdivision (b) ordered stricken where it was served concurrently with another similarly alleged prior. (A) PED

Tran, Thien: P.v. McCaney, G035932. - Custody Credits; Ex Post Facto
The Court of Appeal struck the $20 security fee because Attorney General conceded it should be stricken in light of the procedural posture of this case (appellant had already been sentenced, with execution of sentence suspended, before security fee statute became operative). The court also remanded the case for a hearing regarding the correct calculation of pre-sentence custody credits in this complicated case where appellant's California Rehabilitation Center (CRC) parole was revoked and he was excluded from CRC due to his arrest in a new case. (A) APJ

Stuetz, Jeff: P. v. Anzalone, D044138. - Ineffective Sssiatnce of Counsel; Prosecutorial Misconduct; “Zone of Danger” Theory
Upon transfer back to the Court of Appeal, following a grant of review and in light of People v. Smith (2005) 37 Cal.4th733, Court of Appeal determined it was correct in its original opinion in finding the prosecutor committed misconduct in misinforming the jury on the “zone of danger” theory, by which appellant was found guilty of four counts of premeditated attempted murder after firing two shots. Since defense counsel failed to object to the error, the Court of Appeal concluded, for the second time, that ineffective assistance of counsel for failing to object to the prosecutor’s erroneous argument required reversal of three counts. (I) CFS

Kessler, Daniel: P. v. Fraiser, D046653. - Proof of Foreign Serious Prior
Proof of a prior out-of-state (George) serious felony was insufficient where Georgia’s elements are not congruent with California (i.e., Georgia robbery does not require an intent to dispossess permanently) and the exhibits in evidence did not prove the required intent. The matter was remanded to permit the prosecution to attempt to re-prove the allegation. (I) HCC

Cannon, Gregory L.: P. v. Canfield, E037319. - Stayed Sentence
Attorney General conceded and Court of Appeal agreed that concurrent sentence on one count should be stayed pursuant to Penal Code section 354. (I) DLN
Booth, Christopher: In re Jose L., A Minor, D048020. - ICWA
Conditional reversal of termination of parental rights where D.P.S.S. failed to comply with proper notice requirement of ICWA. (I) MRR

Duxbury, Brett H.: P. v. Trejo, G037142. - Stayed Sentence; Street Gang Enhancement
A concurrent term for a street terrorism conviction ordered stayed pursuant to Penal Code section 654 where appellant was also convicted of first degree murder based on the same conduct. Additionally, a street gang enhancement was ordered stricken (Attorney General had conceded). (I) HCC

Romero, Lynda: P. v. Ponce, G035009-01. - Stayed Sentence; Restitution Fines
A concurrent term for a street terrorism conviction ordered stayed pursuant to Penal Code section 654 where appellant was also convicted of first degree murder based on the same conduct. Also, where victim restitution was ordered, addition restitution fines ordered stricken ( Attorney General conceded). (I) HCC

Shanahan, Maureen: P. v. Lowery, G035845. - Search & Seizure
Reversed. Trial court erred in denying motion to suppress evidence because there was insufficient evidence to support the court’s finding of reasonable suspicion that defendant made an unlawful turn, which was the basis of the vehicle stop. (I) AMJ

Furness, Laura (Father) & Pfeiffer, Richard (Mother): In re Miya V. A Minor, E038829 - Insufficient Evidence (Jurisdiction): Reunification Services
Unpublished dependency case in which Court of Appeal reversed the jurisdiction finding under subdivisions (b) & (g) for mother and remanded the case for a new jurisdiction hearing. The court held that there was no evidence that the mother failed to arrange for Miya’s care after the mother was incarcerated. The “record showed the [trial] court based its decision on its belief that the caretakers the parents chose were not suitable, not on the fact that the arrangements the parents made had fallen through before the dependency proceedings intervened.” This was incorrect. Further, the Court of Appeal found that the trial court improperly interpreted the testimony of witnesses at the contested jurisdiction hearing. The court further held the parents did not have standing to challenge the court’s decision to not place Miya with her maternal grandmother because neither parent was aggrieved by the order. Finally, the court reversed the trial court’s order denying father reunification services because the order was not supported by substantial evidence when there was no finding of detriment and the court ordered visitation for father. (ADI) LLF

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