Recent Opinions & Review Grants

Dec. 30, 2025 – People v. Brammer (2nd. Dist., Div. 1, B336058)

The Court of Appeal affirms the superior court’s resentencing of appellant under PC 1172.1. The superior court reduced appellant’s sentence from 369 years to life to 225 years to life. The Court rejects appellant’s argument that based on the Legislature’s intent, as set forth in the uncodified portion of AB 600, a PC 1172.1 resentencing must “result in a meaningful modification.” The Court also rejects appellant’s argument that the new sentence is unreasonably punitive and affirms that punishment remains a proper consideration under PC 1172.1 resentencing.

Dec. 29, 2025 – People v. Kopp (S257844)

Dec. 29, 2025 – People v. Salstrom (3rd Dist., C102342)

The trial court did not err when it reimposed an upper term sentence for voluntary manslaughter following a PC 1172.75 resentencing hearing.  Under PC 1172.75, subdivision (d)(4), unless the trial court originally imposed an upper term, the court may not impose a sentence exceeding the middle term unless justified by aggravating circumstances.  Here, the court agreed with People v. Brannon-Thompson (2024) 104 Cal.App.5th 455, that trial court could reimpose the upper term during a PC 1172.75 resentencing without relying on any aggravating factors. Additionally, the trial court erred by reimposing restitution fines the appellant had already paid.  Under PC 1465.9, ten years after a PC 1202.4 restitution fine is imposed, the balance shall be uncollectable, and any portion of judgment imposing those fines shall be vacated.  The 10-year clock does not reset because the appellant is resentenced.

Dec. 29, 2025 – People v. Jimenez (5th Dist., F087827)

The Court of Appeal holds that under PC 594 the amount of damage resulting from a vandalism includes any “cost of repairing or replacing the vandalized property.” The Court further holds that under the Williamson rule (In re Williamson (1954) 43 Cal.2d 651), appellant’s prosecution under PC 594 for damaging jail property was barred due to the Legislature’s enactment of a more specific statute, PC 4600, which specifically prohibits destruction of “any jail, prison, or any public property in any jail or prison.” Therefore, appellant’s PC 594 conviction is reversed.

Dec. 23, 2025 – In re J.L. (1st Dist., Div. 2, A171588)

The Court of Appeal holds that newly amended WIC 730.6, which eliminates joint and several liability for victim restitution in juvenile delinquency matters, applies prospectively only.  The Court finds the juvenile court did not err in awarding the victim’s Mother restitution for the the childcare expenses she incurred over many months because she had to attend to the consequences of the offenses against her daughter.  The Court finds the juvenile court acted within its discretion in accepting Mother’s estimate as “a prima facie showing of loss” even though Mother was unable to identify each date she paid for childcare.

Dec. 17, 2025 – Kuhnel v. Superior Court (1st Dist., Div. 3, A163307)

The Court of Appeal directs the trial court to vacate its order denying defendant’s motion to terminate probation. Prior to the enactment of AB 1950, defendant was placed on three years probation and allegedly violated its terms during the first year. The trial court summarily revoked probation, but not until early in the second year. The Court holds that the rule of retroactivity prevents the trial court from adjudicating the violation of probation on the ground that probation was not summarily revoked until after the maximum probationary period allowed under Assembly Bill 1950.

Dec. 17, 2025 – Review Grant – People v. Orozco (S293587)

Petition for review after the Court of Appeal affirmed in part and reversed in part a judgment of conviction of criminal offenses and remanded for further proceedings. The court limited review to the following issue: Is defendant’s indeterminate sentence for attempted murder unauthorized under Penal Code section 664, subdivision (a) because the prosecutor did not allege in the information that the attempted murder was willful, deliberate, and premeditated?

Dec. 17, 2025 – Review Grant – People v. Flowers (S293388)

Petition for review after the Court of Appeal affirmed a judgment of conviction of a criminal offense. The court limited review to the following issue: Did the Court of Appeal err by declining to remand for resentencing under the amended Penal Code section 1170, subdivision (b)? (See People v. Wiley (2025) 17 Cal.5th 1069; People v. Lynch (2024) 16 Cal.5th 730; People v. Salazar (2023) 15 Cal.5th 416; People v. Gutierrez (2014) 58 Cal.4th 1354.)

Dec. 16, 2025 – Benavides v. Sup. Court (2nd Dist., Div. 5, B343477)

The Court of Appeal holds that PC 859b mandates dismissal of a complaint when a trial court continues a preliminary hearing beyond the 10-court-day period without finding good cause, orders the defendant be released on the tenth court day, but the jail fails to release the defendant on time as ordered.

Dec. 16, 2025 – In re Thai (1st Dist., Div. 4, A170701)

CDCR’s regulation allowing only educational merit credits to advance a youth offender’s youth parole eligible date (YPED), while permitting additional credit categories to advance the minimum parole eligibility date (MPED) of nonyouth indeterminately sentenced prisoners, is lawful and constitutional. Youth offender parole under PC 3051 and adult indeterminate parole under PC 3041 are distinct statutory schemes with separate definitions. Additionally, applying rational basis review, the court found no equal protection violation related to the disparate treatment.

Dec. 15, 2025 – People v. Ismaiel (1st Dist., Div. 5, A168277)

The Court of Appeal agrees with both parties that the trial court erred by instructing the jury that a mistake of fact is not a defense to the charged specific intent offenses unless the mistake is not only actual but reasonable. For specific intent offenses, the mistake of fact need only be actual. Noting that the Supreme Court in People v. Hendrix (2022) 13 Cal.5th 933 declined to resolve the question of whether the Chapman or Watson prejudice standard applied to an error in the mistake of fact instruction, the Court of Appeal also declined to make that decision finding the error was prejudicial even under the less stringent Watson standard.

Dec. 15, 2025 – People v. Shaw (S286453)

Dec. 12, 2025 – In re Riley (1st Dist., Div. 3, A174426)

The Court of Appeal holds that persons enrolled in work release programs in lieu of jail time have a conditional liberty interest that cannot be revoked without affording due process. The trial court violated defendant’s due process rights by revoking her participation in work release and ordering her to serve the remainder of her jail time in custody based on a finding, unsupported by substantial evidence, that it was “no longer feasible” for her to participate in work-release.

Dec. 10, 2025 – Review Grant – People v. Ball (S292969)

Review granted on question of whether subjective fear is an element of brandishing a firearm at a motor vehicle occupant (PC 417.3).

Dec. 10, 2025 – People v. Harrison (1st Dist., Div. 4, A170760)

Defendant was ineligible for resentencing under PC 1170.91 (military), where his underlying offense was a “super strike.” Any error in failing to hold a hearing was not prejudicial where defendant was ineligible as a matter of law. There was no need to consider legislative history, when subdivision (c) unambiguously excludes anyone who has committed an offense described by PC 667 (e)(2)(C)(iv) (super strikes), whether as a first-time offense or as a prior offense.

Dec. 10, 2025 – People v. Kinnear (2nd Dist., Div. 7, B338040)

The trial court erred in failing to advise defendant of his Boykin/Tahl rights on prior convictions and aggravating factors before accepting defendant’s stipulation. Because nothing in the record affirmatively showed that defendant was aware of his rights, under the totality of the circumstances, defendant did not provide a knowing and voluntary waiver. The same requirements for advisement and waiver that apply to a defendant’s stipulation to a prior conviction apply to aggravating factors.

Dec. 9, 2025 – People v. S.H. (4th Dist., Div. 2, E083533)

Dec. 8, 2025 – People v. Grandberry (2nd Dist., Div. 3, B338443)

Dec. 8, 2025 – People v. Cain (2nd Dist., Div. 6, B342911)

PC 1172.75 does not authorize a trial court to recall an affirmed death penalty sentence; the trial court may only modify the non-capital portion of the judgment. Because habeas corpus is the exclusive means to collaterally attack a death judgment that has been affirmed on appeal (PC 1509), the superior court lacked authority to nullify the death penalty through the PC 1172.75 process. The issue of whether a superior court can modify a death judgment under PC 1172.75 is pending in the California Supreme Court in People v. Dixon (2025) 112 Cal.App.5th 236, rev. granted 10/22/25 (S292223).

Dec. 5, 2025 – People v. Frederickson (4th Dist., Div. 3, G064577)

The Court of Appeal affirms the trial court’s resentencing under PC 1172.1. The trial court struck defendant’s firearm enhancements (PC 12022.53), vacated the first-degree murder convictions, and imposed judgment on lesser offenses of second-degree murder. The Court rejects the prosecution’s argument that because the jury had found a special circumstance to be true, the trial court’s ruling violated PC 1385.1 which prohibits a court from dismissing any special circumstance found true by a jury in a death penalty or LWOP case. Instead, the Court finds that the special circumstances fell away by operation of law, not by a court’s dismissal.

Dec. 3, 2025 – Lee v. Superior Court (5th Dist., F088934)

Dec. 2, 2025 – People v. Dozier (2nd Dist., Div. 7, B336625)

Dec. 2, 2025 – People v. Holliday (3rd. Dist., C102760)

For misdemeanor pretrial military diversion, the defendant must show a “reasonable possibility” that he or she is suffering from a qualifying condition as a result of their military service. (PC 1001.80 (b).) Consistent with the statute’s language and legislative history, by requiring the defendant to show they “may be” suffering from a qualifying condition, the Legislature intended to impose a lower “reasonable possibility” burden of proof – lower than a preponderance of the evidence – thereby making it less burdensome to establish eligibility.PC 1001.80 does not permit the trial court to rely on counsel’s statements to satisfy the burden of proof of eligibility in misdemeanor cases because statements of counsel are not evidence.

Dec. 1, 2025 – People v. Seigler (1st Dist., Div. 2, A170503)

Trial court committed abuse of discretion in denying defense counsel’s motion to continue (PC 1050) trial date to secure expert exam in support of mental health diversion request (PC 1001.36). Because erroneously denied continuance deprived defendant of merits hearing on PC 1001.36 request and forced him to choose between guilty plea and trial with an admittedly unprepared attorney, his subsequent plea and sentence must be reversed

Dec. 1, 2025 – In re S.R. (S285759)

The Supreme Court held that a parent’s appeal from a juvenile court’s jurisdictional finding survives a mootness challenge where the parent shows that an agency must report the allegation to the CACI. Inclusion in the CACI carries severe consequences for parents, is stigmatizing, and has a specific legal or practical consequence that would be avoided upon reversal of the jurisdictional findings. The order dismissing mother’s appeal was reversed and remanded to the Court of Appeal. In a concurring opinion, Justice Liu explained that a parent’s conduct towards a minor that constitutes lawful self-defense cannot provide a basis for including that person in the CACI.

Nov. 26, 2025 – People v. Gallardo (4th Dist., Div. 1, D084845)

Assault to commit rape (PC 220(a)(1)) is not a lesser included offense of rape of an unconscious person (PC 261(a)(4)). PC 220 requires intent to use force against the victim, an element not required under PC 261(a)(4), and a defendant may therefore be properly convicted of both offenses.

Nov. 25, 2025 – People v. Woodward (6th Dist., H051732)

A felony conviction under PC 290.013 does not become a misdemeanor when the underlying sex offense is changed from a felony to a misdemeanor.  In 2011 defendant originally pleaded no contest to one felony count of possessing child pornography (PC 311.11, subd. (a)).  In 2015, he was convicted of failing to register a change of address (PC 290.013.)  In 2022 under PC 17, subdivision (b), the 2011 conviction was reduced to a misdemeanor.  Although PC 311.11 is a wobbler, PC 290.013 is a felony and does not become a “de facto” misdemeanor if the underlying sex offense is later changed from a felony to a misdemeanor.

Nov. 21, 2025 – People v. Murphy (1st Dist., Div. 3, A172224)

A court may not rely on unpaid victim restitution to deny either an expungement under PC 1203.4 or a reduction to a misdemeanor under PC 17. PC 1203.4(c)(3)(C) and PC 17(f), respectively, prohibit using unpaid restitution as “grounds for denial,” and here the court emphasized the outstanding restitution in denying both forms of relief, requiring remand for reconsideration.

Nov. 17, 2025 – In re C.L. (2nd Dist., Div. 3, B345433)

In an appeal from the termination of parental rights, mother argued the Department failed to conduct an adequate ICWA inquiry of the children’s extended family members.  The appellate court disagreed concluding that the juvenile court did not abuse its discretion in finding the inquiry was adequate, even though the maternal uncle was not asked if the children were Indian children. Several other family members had been interviewed and substantial evidence supported the juvenile court’s implied and expressed findings.

Nov. 17, 2025 – People v. NavaAdame (4th Dist., Div. 3, G064663)

Third questioning session of defendant voluntarily present in police interview room became custodial interrogation requiring Miranda warnings where: questioning about molestation allegations had already lasted 90 minutes; second session included obtaining defendant’s DNA sample and inquiry about polygraph exam; and third portion began with detective’s accusatory monologue employing multiple “well-known interrogation techniques designed to elicit confessions.” Admission of subsequent confession was prejudicial under Chapman as to all 11 counts involving two named victims. However, questioning following defendant’s equivocal invocation of counsel during second session did not violate 5th Amendment right to counsel because that right is triggered only by custodial interrogation. Exclusion of confession requires alleged error in joining charges for two named victims to be reconsidered in first instance by trial court on remand.

Nov. 13, 2025—The People v. McInnis (4th Dist., Div. 1, D082909)

In a 27- year-old cold case, the trial court dismissed the charges as a violation of defendant’s due process rights, finding negligent precharging delay, substantial prejudice to the defendant due to missing and forgetful witnesses, and that the prosecution’s justification for delay was de minimus. The court of appeal held the trial court abused its discretion and violated separation of powers principles by second-guessing the investigating and charging decisions of the prosecutor. Noting the heart of the dispute was the boundary between negligent and investigative delay, the appellate court found that the People’s decision to delay prosecution until DNA testing made them completely satisfied they had sufficient evidence to obtain a murder conviction constituted investigative delay and provided strong justification under the Nelson balancing test.

Nov. 12, 2025 – People v. Demacedo (1st Dist., Div. 3, A170580)

DUI causing injury (VC 23153) is not a lesser included offense of vehicular manslaughter while intoxicated (PC 191.5), when the offenses involve different victims. Related to one drunk driving accident, Demacedo was convicted of three counts of gross vehicular manslaughter while intoxicated (PC 191.5(a)) corresponding to each of three decedents, as well as felony violations of VC 23153(a) and (b) for DUI causing injury to a fourth surviving victim. Because the counts arose from injuries to different victims, the court rejected defendant’s contention that the DUI causing injury counts must be dismissed as lesser included offenses.

Nov. 12, 2025 – People v. Rockhill (2nd Dist., Div. 7, B335084)

Trial court’s ex parte communication with a prosecutor demonstrated sufficient “probability of actual judicial bias” to constitute structural error. After defendant testified, prosecutor indicated she would not present rebuttal but did not officially rest; judge then contacted another prosecutor to encourage calling a specific rebuttal witness. This attempt “to assist the prosecution in obtaining a conviction” justifies reversal without regard to prejudice.

Nov. 12, 2025—In re A.H. (1st Dist., A171639)

The court exercised its discretion to hear an otherwise moot appeal of a court order for an out-of-home placement in a short-term residential therapeutic program (STRTP) made without the statutorily required “case plan” from probation. Although the failure of minor’s counsel to adequately object implicated forfeiture, the court nonetheless exercised its discretion to decide the issue because it presented a “straightforward legal question of first impression that could recur.” The court held that the trial court abused its discretion in ordering the STRTP placement without a case plan. The AG’s argument of harmless error was moot, and after deciding the issue on the merits, the court dismissed the appeal.

Nov. 10, 2025 – Hernandez v. Superior Court (6th Dist., H052774)

Nov. 7, 2025 – People v. Tokhunts (2nd Dist., Div. 3, B330660)

It is not structural error for a trial court to erroneously sustain a prosecutor’s objection to a single peremptory challenge by the defense under CCP 231.7.  Assuming error under CCP 231.7, the defendant must show the error affected his right to a fair trial and impartial jury. (People v. Black (2014) 58 Cal.4th 912, 920.)  A defendant’s right to a fair trial and impartial jury is only affected when “an incompetent juror, meaning a juror who should have been removed for cause, sits on the jury that decides the case.” (Ibid.) In this case with child abuse and domestic violence allegations, the prospective juror’s remarks that she “would try” to remain fair and impartial, but “it’s hard when you’ve worked with children that have been through” domestic violence, did not reflect actual bias amounting to grounds to remove her for cause.

Nov. 7, 2025 – In re Mattison (4th Dist., Div. 2, E085614)

Nov. 3, 2025 – People v. Gomez (4th Dist., Div. 1, D083403)

Trial court erred by finding eight-year-old alleged sex offense victim unavailable after mother told court testifying would be too traumatic for child. Mother’s claim insufficient to establish medical unavailability (EC 240(a)(3)) and “reasonable diligence” by prosecution (EC 240(a)(5)) not shown where mother never “unequivocally” rejected offered accommodations or directly stated she was prepared to defy court order to produce daughter. Resulting admission of daughter’s preliminary hearing testimony requires reversal of all counts naming her as victim as well as conviction against second child where daughter provided propensity corroboration (CALCRIM 1191B).

Oct. 31, 2025 – People v. Guevara (1st Dist., Div. 3, A170530)

Defendant received ineffective assistance of counsel at PC 1172.75 resentencing. Defense counsel’s performance fell below an objective standard of reasonableness when he told the court he would file a resentencing brief with a Romero argument, obtained multiple continuances, and then failed to file a brief without good reason despite his representation that he had “more material that [he] had intended to submit to the Court.” Defendant established prejudice where it would have been reasonable for the sentencing court to have dismissed a GBI enhancement or one of defendant’s strike priors.

Oct. 30, 2025 – People v. Taylor (2nd Dist., Div. 1, B346062)

The District Attorney’s Office filed a writ of mandate after the trial court granted pretrial mental health diversion to defendant under PC 1001.36. The trial court implicitly found that defendant would not pose an unreasonable risk to public safety if granted diversion. The Court of Appeal found that there was substantial evidence that defendant would likely abandon treatment and pose an unreasonable risk to public safety. The Court of Appeal granted the District Attorney’s petition, directing the trial court to vacate its order.

Oct. 30, 2025 – People v. Cervantes (2nd Dist., Div. 6, B332405)

A trial court has jurisdiction to correct an unauthorized sentence it discovers while reviewing a defendant’s PC 1172.6 petition. Here, defendant’s sentence included an unlawful firearm enhancement, but the trial court concluded its prima facie PC 1172.6 denial deprived it of jurisdiction to address the error. However, the unauthorized sentence, combined with the “strong showing” defendant made for a PC 1172.6 evidentiary hearing, provided sufficient jurisdictional basis to correct the error.

Oct. 30, 2025 – People v. Olea (6th Dist., H051988)

The Court of Appeal finds that a denial of a petition for resentencing under PC 1172.1 filed by a defendant is an appealable order if the court appoints counsel, holds a hearing, and makes a merits based decision.  The Court finds that the actions taken by the trial court, together with the trial court’s statements explaining why is was declining to recall and resentence, indicate the trial court denied the petition on the merits, thus affecting appellant’s substantial rights. The Court further finds that the trial court did not abuse its discretion in denying the petition.

Oct. 30, 2025 – People v. Perez-Tinoco (4th Dist., Div. 3, G064424)

(1) Habeas relief under People v. Chiu (2014) 59 Cal.4th 155 [NPC doctrine cannot support premeditated murder] remains available following PC 1172.6 enactment, and trial court therefore correctly vacated first degree murder conviction; (2) Chiu relief rendered judgment nonfinal and court properly applied ameliorative PC 186.22 changes to also vacate gang offense and enhancements; (3) dismissal of vacated first degree murder and gang charges affirmed after prosecution failed to seek stay of trial proceedings pending habeas appeal (PC 1506) and failed to retry within 60 days (PC 1382).

Oct. 28, 2025 – People v. Mirabal (H050860)

Battery (PC § 242) is a lesser included offense of the crime of rape of an intoxicated person (PC § 261(a)(3)), and the trial court erred in not so instructing the jury. The trial court committed reversible error by failing to instruct the jury sua sponte on a lesser included offense of battery, as there was substantial evidence to support that defendant did not and reasonably should not have known that Doe was incapable of consenting to sexual intercourse. There is a current split as to whether battery is an LIO of rape of an unconscious person (PC 261(a)(4)). (Compare People v. Hernandez (2011) 200 Cal.App.4th 1000, 1006 [battery is not a LIO of rape of an unconscious person] with People v. Miranda (2021) 62 Cal.App.5th 162, 167 [battery is an LIO of rape of an unconscious person].) The Court of Appeal here found Miranda to be better reasoned.]

Oct. 28, 2025 – In re H.T. (3rd Dist., C102265)

When a minor is discharged from SYTF commitment to probation supervision in the community under WIC 875(e)(3), WIC 900(b) authorizes the trial court to order minor’s housing costs be paid by the county. Here, court believed it lacked authority to order such payment, and remand is required for reconsideration. Issue is also not moot, despite minor securing alternative funding in the meantime, because reimbursement to original payer may be ordered.

Oct. 28, 2025 – People v. Taito (2nd Dist., Div. 3, B337324)

PC 1172.6 petition properly denied at prima facie stage where robbery-murder special circumstance true finding conclusively established conviction was consistent with current requirements of PC 189(e)(2). There is a current Court of Appeal split (see e.g. People v. Morris (2024) 100 Cal.App.5th 1016, rev. granted July 17, 2024, S284751) on whether the actus reus for non-killer culpability under PC 189(e)(2) requires aiding the killing itself or merely the underlying felony, and here the Court of Appeal finds aiding the underlying felony suffices and renders this defendant ineligible for relief.

Oct. 27, 2025 – Nevarez v. Superior Court (4th Dist., Div. 1, D085897)

The Court of Appeal affirms the lower court’s ruling that probable cause supports a murder charge where a motorcyclist died after striking defendant’s SUV minutes after it was rendered disabled on the freeway. The SUV became disabled due to an accident caused by defendant who had been driving while intoxicated. The court clarifies its decision in People v. Superior Court (Chagolla) (2024) 102 Cal.App.5th 499 and holds that liability for murder under the Supreme Court’s decision in People v. Watson (1981) 30 Cal.3d 290 does not automatically end the moment an intoxicated driver ceases driving.

Oct. 27, 2025 – People v. Sevilla (1st Dist., Div. 4, A169669)

In the published section of this opinion upholding the trial court’s decision not to instruct the jury on involuntary manslaughter, the pivotal question was whether there was sufficient evidence for a reasonable juror to find that appellant lacked conscious awareness of the risk his conduct posed to human life. In declining to provide the instruction, the trial court did not usurp the jury’s role when it evaluated whether there was substantial evidence appellant acted without malice and accurately determined there was not. Nor does the jury’s rejection of the murder charge in favor of voluntary manslaughter mean that the jury found malice negated.

Oct. 22, 2025 – Rev. Grant – People v. Dixon (S292223)

In addition to the issues specified in the petition for review and answer, the parties are ordered to brief the following issue: Did the superior court have jurisdiction to resentence defendant pursuant to Penal Code section 1172.75 when his appeal was pending before this court?

Oct. 22, 2025 – Rev. Grant – CJLF v. CDCR (S292887)

Review granted in case involving the effect of Proposition 57 on custody credits.

Oct. 22, 2025 – People v. Feise (3rd Dist., C101541)

The five-year great bodily injury enhancement (PC 12022.7(b)) is appropriate where severe damage to the victim’s leg eventually led to its amputation. The five-year enhancement requires “paralysis of a permanent nature . . . . .” which is defined as “a major or complete loss of motor function resulting from injury to the nervous system or to a muscular mechanism.” (§ 12022.7(b).) Contrary to defendant’s argument, there is no legal requirement that a victim “suffer paralysis from a neurological injury” for purposes of this enhancement.

Oct. 22, 2025 – People v. Guzman (4th Dist., G065309)

The court held that the “deemed prejudicial” standard of Code of Civil Procedure section 231.7, subsection (j) does not apply to erroneously granted objections to peremptory challenges. Although section 231.7 is to be broadly construed, “broad construction can only go so far,” and it is clear from plain statutory language, statutory scheme, and legislative history that section 231.7 “is designed to target the improper removal of jurors, not the improper seating of them.” Erroneously granted objections are therefore subject to traditional rules of prejudicial error.

Oct. 22, 2025 – People v. Lara (2nd Dist., Div. 6, B341682)

The Court of Appeal reverses the trial court’s grant of defendant’s petition for recall of sentence pursuant to PC 1170(d)(1)A). Trial court had concluded that defendant was entitled to relief because his 79-year-to-life sentence was the functional equivalent of LWOP.  The rule espoused by People v. Heard (2022) 83 Cal.App.5th 608, has been mooted by the Legislature.  The Court of Appeal finds defendant is not presently serving the functional equivalent of LWOP.

Oct. 21, 2025 – People v. Riddle (3rd Dist., C101539)

The court did not abuse its discretion when it terminated a grant of mental health diversion after it became clear that the defendant’s insurance would not cover residential treatment. The court’s determination that this treatment was a “condition precedent” to diversion did not constitute a finding under PC section 1001.36, subdivision (c)(4), but rather an indication outpatient treatment would not meet defendant’s needs, as required by PC Section 1001.36, subd. (f)(1)(A)(i). Nor did the court err in refusing to order public funding of his treatment when neither the text nor the legislative history of PC section 1001.36, subdivision (f)(1) authorizes such an order.

Oct. 21, 2025 – People v. Krueger (1st. Dist., Div. 2, A171137)

The Court of Appeal finds that the record conclusively establishes appellant, who was convicted of first degree murder, is ineligible for relief under PC 1172.6. The only theory of first degree murder presented to the jury was murder by torture. The jury verdicts and jury instructions conclusively demonstrate appellant is ineligible for resentencing relief because she does not meet the condition that she “could not presently be convicted of murder . . . because of changes to Section 188 or 189 made” by SB 1437 (PC 1172.6(a)(3)).  It follows that her petition for resentencing was properly denied at the prima facie stage.

Oct. 21, 2025 – People v. Warner (1st. Dist., Div. 2, A171126)

The Court of Appeal finds that the record conclusively establishes appellant is ineligible for relief under PC 1172.6. The Court agrees that the trial court erred at the prima facie stage by engaging in fact finding that involved weighing the evidence presented at trial, but the appellate court reviews whether the challenged ruling is correct, not the analysis used to reach it. Even if appellant was convicted of murder as an aider and abettor in 2017, at that time it was clear that a direct aider and abettor could not be convicted of murder without personally harboring malice. Thus appellant is ineligible for relief under PC 1172.6 as a matter of law.

Oct. 15, 2025 – People v. Dain (1st Dist., Div. 2, A168286)

The Court of Appeal reverses the trial court’s order granting dismissal of the strike based solely on its remoteness, and remands for the trial court to decide defendant’s Romero motion, “this time informed by the appellate court’s clarification of the governing law and any arguments and evidence it may find admissible and relevant to the matter before it.” The Court finds the trial court did not abuse its discretion in dismissing the enhancement under PC 667(a) based on remoteness because PC 1385(c) provides that a prior conviction over five years old weighs greatly in favor of dismissing the enhancement.

Oct. 15, 2025 – People v. Hernandez (2nd Dist., Div. 6, B333071)

Neither Batson/Wheeler, CCP section 231.5, nor CCP section 231.7 prohibits excusing jurors based on youth, alone. Further, a party objecting to the dismissal of a juror based on actual or perceived membership in a protected class under section 231.7 must object in the trial court or otherwise forfeit such a claim on appeal.

Oct. 14, 2025 – In re R.L. (2nd Dist., Div. 8, B341295)

The County appealed the dismissal of the  WIC 300 (b) petition. The Court of Appeal affirmed the dismissal stating that the evidence did not compel a finding of substantial risk of harm to the minor at the time of the adjudication hearing.  The evidence showed that it was a one-time incident, that the parents expressed remorse, and accepted responsibility for their actions.

Oct. 14, 2025 – People v. Ferrigno (Los Angeles Co. App. Div., JAD25-05)

Trial court properly dismissed complaint charging violation of Fish and Game Code section 2002. Section 2002 criminalizes possession of fish taken in violation of Fish and Game Code or associated regulations, but the regulation at issue (title 14, section 150.16(a)) does not apply to protected fish inadvertently caught during commercial squid fishing, as the fish were here.

Oct. 9, 2025 – In re Claudia R. (2nd Dist., Div. 7, B344660)

The Court of Appeal agreed with mother that the Department failed to satisfy its duty of inquiry under WIC 224.2(b) to interview all reasonably available extended family members who may have knowledge of ICWA.  Although some relatives had denied Indian ancestry, other relatives could have had meaningful information regarding possible ancestry. The order terminating parental rights was conditionally reversed.

Oct. 9, 2025 – People v. McKean (4th Dist., Div. 2, E083029)

Adopting the reasoning in People v. Escobedo (2023) 95 Cal.App.5th 440, the court held that Section 1172.75’s resentencing provisions apply only to a current prison term with prison prior enhancements, not to a consecutive term for in-custody offenses committed during the original incarceration term. The language of the statute itself and previous case law make it clear that the Legislature intended to treat in-custody offenses more harshly than those committed out of custody, a disparate treatment that does not violate due process where there is, as here, a rational basis for the distinction.

Oct. 9, 2025 – People v. Hill (1st Dist., Div. 3, A168537)

The Court of Appeal holds that PC 288.5 does not violate the Sixth Amendment’s jury unanimity requirement pursuant to Ramos v. Louisiana (2020) 590 U.S. 83. PC 288.5(a) defines continuous sexual abuse of a child as engaging in three or more acts of substantial sexual conduct or lewd conduct with a child under the age of 14 over a period of at least three months.  Under PC 288(b), to convict a defendant of the offense, a jury must unanimously agree that at least three such acts occurred but need not unanimously agree on which acts constitute the required three.

Oct. 9, 2025 – People v. Garcia (1st Dist., Div. 4, A165535)

In published portion of opinion, CCP 231.7 objection properly overruled under totality of circumstances. The prosecution’s stated reasons (lack of life experience, challenged juror’s skepticism about a particular publicized sexual assault allegation) were not presumptively invalid, the (black) juror was not a member of defendant and victim’s racial group, race played no role in the underlying child molestation case, prosecutor’s lack of questions to the juror were reasonable given defense counsel’s extensive examination, and three other black jurors ultimately served on the case.

Oct. 9, 2025 – People v. Guevara (S283305)

The 2012 Three Strikes Reform Act’s reduced penalty provisions for third strikers convicted of nonserious, nonviolent felonies shall apply at a resentencing under PC 1172.75. Interpreting PC 1172.75 in this fashion does not unconstitutionally amend the Reform Act because the latter’s discretionary public safety override (PC 1170.126(f)) also applies at a PC 1172.75 resentencing. Therefore, a third striker eligible for a reduced sentence under the Reform Act shall receive that reduced sentence at a PC 1172.75 resentencing unless the trial court finds, in its discretion, that doing so would “pose an unreasonable risk of danger to public safety” (PC 1170.126(f)).

Oct. 7, 2025 – People v. Melgoza (6th Dist., H050387)

The Court of Appeal concludes that the trial court’s granting of the prosecution request to amend the definition of force in pattern jury instructions for forcible rape (PC 261) and forcible oral copulation (PC 287) was erroneous and prejudicial. The amendment which added, “Force also includes the physical movement and positioning of the female’s body to accomplish the act” was legally incorrect because it suggested that physical movement will always satisfy the force element for the charged offenses.

Oct. 7, 2025 – People v. Gomez (2nd Dist., Div. 4, B337826)

The Court of Appeal reverses the trial court’s order denying appellant’s resentencing petition under PC 1170(d). PC 1170(d) provides for resentencing a defendant sentenced to LWOP (or the equivalent) who was under 18 years of age at the time of the commission of the offense. Among other requirements, a defendant is eligible for resentencing if “[t]he defendant committed the crime with at least one adult codefendant.” The Court finds that a juvenile may be found to have committed the crime with an adult even if the adult did not engage in identical conduct or share the juvenile’s culpability.

Oct. 6, 2025 – People v. Garcia (2nd Dist., Div. 6, B330884)

CCP 231.7 objection properly overruled where first stated reason for prosecutor’s peremptory (lack of life experience) not presumptively invalid and second reason (timid demeanor) was confirmed by trial court and prosecutor articulated its relevance to case. Opinion expressly disapproves contrary holding in People v. Uriostegui (2024) 101 Cal.App.5th 271, issued by same division. Court also finds no abuse of discretion in denying severance motion and abstract fails to conform to oral pronouncement regarding fees. First concurrence would also affirm on basis CCP 231.7’s elimination of prejudice analysis is unconstitutional. Second concurrence agrees no CCP 231.7 violation but distinguishes Uriostegui and rejects its disapproval.

Oct. 3, 2025 – People v. Parker (1st Dist., Div. 3, A172850)

In the absence of any explicit statutory authority or prohibition, tolling the maximum competency commitment period was an appropriate exercise of the trial court’s inherent equitable powers. Appellant was found incompetent in criminal proceedings in Fresno and Napa Counties; when the Department certified to both counties that competence had been restored, appellant was transferred to Fresno County. The delay in holding a competency restoration hearing in Napa County due to the pendency of criminal proceedings on separate charges in Fresno County constituted good cause for the Napa County to toll the two-year maximum commitment period. (PC 1370 (c)(1).)

Sept. 30, 2025 – People v. Page (4th Dist., Div. 1, D084545)

CALCRIM 1193 does not impermissibly allow jury to consider expert testimony on Child Sexual Abuse Accommodation Syndrome (CSAAS) as evidence of defendant’s guilt. Further, 2022 instructional amendment permitting consideration of whether victim’s conduct “was consistent with” that of a molestation victim, as opposed to “not inconsistent with” under prior version, does not misstate the law because the phrases have “the same meaning.” Finally, CSAAS expert testifying “over 90 percent” of child sex abuse cases involve perpetrator known to the victim was admissible statistical evidence to counter a specific juror misconception, and trial counsel therefore not ineffective for failing to object. Concurrence concludes “consistent with” substitution eliminated “subtle” but “important nuance” in prior instruction, although any error harmless given the limitations expert placed on her opinion.

Sept. 29, 2025 – Adoption of X.D. (2nd Dist., Div. 8, B343632)

The minor, mother, and prospective adoptive parents appealed the juvenile court’s findings that father was a Kelsey S. father. First, the appellate court determined that the juvenile court abused its discretion in excluding an exhibit that was relevant to the Kelsey S. determination. Then, the Court of Appeal concluded substantial evidence did not support the Kelsey S. father finding because father had not contributed to the child’s well being during pregnancy and his actions were physically and emotionally harmful to her.

Sept. 24, 2025 – Hernandez v. Superior Court (1st Dist., Div. 5, A173010)

The trial court erred when it granted two trial continuances after concluding the prosecutor was involved in another trial “in progress.” Good cause for continuing trial in specified sex offense cases includes that the assigned prosecuting attorney has another trial “in progress.” (PC 1050(g)(2).) Here, the prosecutor’s second trial was not “in progress” when it was calendared behind a third case – which had a different prosecutor – but was not scheduled to begin until the end of the month. The court of appeal issued a peremptory writ directing the superior court to grant petitioner’s PC 1382 motion to dismiss.

Sept. 24, 2025 – People v. Superior Court (Lalo) (4th Dist., Div. 2, E085658)

The Court of Appeal issued a writ of mandate directing the trial court to vacate its order granting defendant’s motion for discovery under PC 745, the Racial Justice Act (RJA). The defendant’s factual scenario that he was overcharged to pressure him before trial is unsupported. His assertion that he faced more severe charges than another defendant is not consistent with the information provided for that other case. Defendant’s statewide (rather than countywide) statistics fail to present a factual allegation of specific misconduct. Because defendant failed to demonstrate good cause, the trial court erred in granting discovery.

Sept. 22, 2025 – In re Miguel J. (2nd Dist., Div. 8, B339932)

Father challenged the juvenile court’s jurisdictional findings pursuant to WIC 300(a) based on domestic violence and dispositional findings removing the child from his care. The Court of Appeal affirmed. With respect to jurisdiction, the court found that domestic violence in a child’s immediate presence was sufficient for a subdivision (a) finding.  The appeal was not moot, despite a later order which returned the child to both parents, because father could face adverse consequences.

Sept. 19, 2025 – People v. Venancio (2nd Dist., Div. 3, B338191)

A defendant convicted of provocative act murder after People v. Concha (2009) 47 Cal.4th 653, is ineligible for resentencing under PC 1172.6. The record of conviction—including the preliminary hearing transcript stipulated as the factual basis for his plea—showed defendant was convicted under a provocative act murder theory, and not under felony murder or natural and probable consequences, which were unavailable given the unknown identity of the shooter. Defendant entered his plea in this case five months after Concha was decided. After Concha, the theory of provocative act murder required proof the defendant personally harbored malice. Because personal malice continues to be a valid basis for murder liability, defendant failed to make a prima facie case for relief.

Sept. 18, 2025 – In re A.M. (2nd Dis., Div. 8, B343879)

The juvenile court erred by removing the minor from her father who was incarcerated. A juvenile court may not remove a child from their parent simply because the parent is in prison. Father made a suitable plan for the proper care of his daughter during his incarceration which did not pose any risk to the child. The court must respect a parent’s right to the care, custody, and management of their child, which is a fundamental liberty interest.

Sept. 17, 2025 – People v. Pierce (5th Dist., F086411)

Substantial evidence supported the Watson murder conviction where the defendant’s conduct created a high degree of probability of death. Two tests or formulations have been used to define the objective act underlying implied malice: the act must involve “a high degree of probability that it will result in death” (the Thomas test), or the act must be one with natural consequences “dangerous to life” (the Phillips test).  The CSC seemingly clarified in People v. Reyes (2023) 14 Cal.5th 981, that these formulations mean the same thing, but under either formulation the act must not merely be dangerous to life in some vague, speculative, or remote sense, but an act that has a high degree of probability of resulting in death. Defendant’s intoxicated, high-speed driving created a high degree of probability of death, satisfying the objective element. Substantial evidence also supported that he subjectively acted with conscious disregard for the danger his actions posed to human life.

The implied malice jury instruction given—CALCRIM No. 520, requiring that the natural consequences of defendant’s act be dangerous to human life—was a correct statement of law. Although the jury was not instructed using the “high probability of death” phrasing, Reyes cited with approval to cases treating the “dangerous to human life” and “high probability of death” formulations as equivalent. Thus, the instruction properly conveyed the law.

Sept. 16, 2025 – Angulo v. Superior Court (4th Dist., Div. 2, E085719)

The trial court erred by finding that defendant needed a minimum of one year of service to be eligible for military diversion under PC 1001.80. Under PC 1001.80, a trial court is required to consider whether a defendant is eligible for military diversion and then make a determination of suitability for military diversion. The length of a defendant’s military service is not a factor in eligibility.

Sept. 15, 20215 – People v. Garcia (2nd Dist., Div. 1, B335902)

Defendant is ineligible for mental health diversion under VC 23640(a) when DUI and non-DUI charges arise from a single course of conduct in the same case. VC 23640(a) bars diversion in any case involving a DUI offense. Because Garcia’s DUI and assault charges were part of a single case and a single course of conduct, she is ineligible for mental health diversion on all charges. The appellate court affirmed the denial of Garcia’s motion for mental health diversion.

Sept. 15, 2025 – Mendoza v. Superior Court (1st Dist., Div. 3, A173171)

An arraignment or plea on an amended complaint does not restart the statutory 60-day period for holding a preliminary hearing under PC 859b, unless the defendant has personally waived that limit on the original complaint. Treating amended complaints as restarting the 60-day clock would improperly create a “good cause” exception not authorized by statute and would undermine the Legislature’s intent to guarantee a speedy preliminary hearing.

Sep. 12, 2025 – In re X.D. (2nd Dist., Div. 5, B338140)

In an appeal from jurisdiction and disposition, the Court of Appeal affirmed the juvenile court’s exercise of dependency jurisdiction. The Court held that jurisdiction was appropriate under WIC 300(g) when the parent’s inability to arrange for the care of their child can be inferred from the parent’s suggestion of relatives who were unable to provide suitable, reliable or appropriate care for the child.

Sept. 11, 2025 – People v. Millsap (2nd Dist., Div. 4, B336859)

Appellant was convicted of multiple first-degree special circumstance murders and other violent crimes and sentenced to multiple death sentences. His automatic appeal is pending before the Supreme Court. The trial court declined to vacate appellant’s 667.5 sentence and resentence him under 1127.75, arguing it lacked jurisdiction to modify the sentence. The Court of Appeal ruled the trial court did not err by finding it lacked jurisdiction to resentence appellant under PC 1172.75. The Supreme Court has exclusive jurisdiction over capital appeals, including resentencing.

Sept. 10, 2025 – People v. Orozco (2nd Dist., Div. 8, B329413)

Conspiracy to commit murder count reversed because preliminary hearing evidence was insufficient to support adding charge to information over defense objection. Murder and attempted murder convictions affirmed where trial counsel had strategic reason for permitting introduction of co-defendant’s confession and any prosecutorial misstatement regarding premeditation law harmless. Indeterminate sentence on attempted murder also proper despite failure to charge allegation, as defense otherwise had sufficient notice and jury properly rendered required true finding.

Sept. 9, 2025 – People v. Ball (4th Dist., Div. 3, G064274)

Violating PC 417.3 (brandishing firearm at vehicle occupant) does not require proof the victim subjectively experienced fear. Instead, the prohibition on exhibiting a firearm in a manner causing “a reasonable person apprehension or fear of bodily harm” sets forth an objective standard only.

Sept. 9, 2025 – People v. Mills (2nd Dist., Div. 6, B334998)

The Court of Appeal finds that dismissing a strike so that a defendant might be eligible for “elderly parole” is not a lawful reason to remove a defendant from the letter and spirit of the Three Strikes rule or the fair import of People v. Romero (1996) 13 Cal.4th 497. The Court states that “[d]oing so here would work a radical exception to the ‘Three Strikes rule.’ This would be the antithesis of judicial restraint.”

Sept. 8, 2025 – Conservatorship of A.H. (1st Dist., Div. 5, A169588)

The Court of Appeal agrees with the holding in Conservatorship of T.B. that WI 5350(d)(2) does not require a court to dismiss an LPS conservatorship petition when the trial has not started by the statutory deadline.  However, the Court reverses the LPS conservatorship in this case, finding the 10-month delay prior to trial violated due process under the Barker v. Wingo test.  Significant to this finding were the facts that A.H. had never before been found gravely disabled and that none of the delay was attributable to him.

Sept. 8, 2025 – People v. Roberts (1st Dist., Div. 4, A170546)

The Court of Appeal holds that California’s firearm licensing scheme (PC 26150, PC 26155), which requires those who carry concealed weapons publicly to obtain a license as a prerequisite without a finding of dangerousness, is constitutionally valid under the Second Amendment. Because firearms licensure guided by appropriate standards is a reasonable means of screening to see whether anyone applying for a concealed carry permit is a felon, the Court rejects appellant’s argument that the licensing scheme at issue here is facially invalid.

Sept. 8, 2025 – People v. Garcia (4th Dist., Div. 2, E083552)

The trial court and the Court of Appeal lacked jurisdiction to consider defendant’s non-statutory postjudgment motion to vacate fines and fees. Defendant’s conviction was final, and he identified no express statutory authorization for reopening his case to allow the trial court to vacate the fines and fees. The Court of Appeal rejected claims that People v. Codinha (2023) 92 Cal.App.5th 976, PC 1172.1 (amended by AB 600) and Government Code 6111 (amended by AB 1869) conferred jurisdiction. It dismissed the appeal.

Sept. 5, 2025 – In re Grinder (5th Dist., F088488)

The Court of Appeal holds that a writ of habeas corpus is an appropriate vehicle to challenge an initial MDO certification on the ground petitioner did not commit a qualifying offense. The Court concludes that the rule announced in People v. Stevens (2015) 62 Cal.4th 325 that “the People may not prove the facts underlying the commitment offense (that are necessary to establish the qualifying offense) through a mental health expert’s opinion testimony” is not retroactive. Further, the Court holds that defendant’s petition is not time barred even though he did not challenge his 2005 certification in a superior court proceeding under PC 2966(b).

Sept. 5, 2025 – People v. Molina (4th Dist., Div. 2, E082376)

The Court of Appeal affirms the misdemeanor conviction of a registered nurse for a violation of PC 368(c), dependent adult abuse.  The Court holds that the definition of “care or custody” in the Elder Abuse Act – “a substantial caretaking or custodial relationship, involving ongoing responsibility for one or more basic needs” – does not apply in criminal elder/dependent abuse cases under section 368. Instead, the Court holds that the terms “care” and “custody” in the elder/dependent adult abuse statutes have no special meaning beyond the plain meaning of the terms themselves.

Sept. 4, 2025 – People v. Sarabia (2nd Dist., Div. 8, B335646)

The Court of Appeal finds no error in the trial court’s denial of defendant’s motion for a mistrial after a prosecution witness used the term “moniker” despite the exclusion of all gang evidence. Although people working in criminal justice may connect the word “moniker” with gangs, the defendant did not establish that lay people would also associate the term with gangs. Thus this one use of “moniker” did not deny defendant a fair trial. The Court of Appeal further finds that the trial court did not abuse its discretion when it denied defendant’s mid-trial Marsden and Faretta motions.

Sept. 4, 2025 – People v. Cardenas (S151493)

Sept. 2, 2025 – People v. Parker (3rd Dist., C098819)

Appellant was charged with murder. During jury deliberations, the jury asked about intoxication in relation to culpability in a “heat of passion” situation. The defense requested trial court to respond with CALCRIM 625, the standard voluntary intoxication instruction. Instead, the trial court responded by providing the language of PC 29.4(b). The Court of Appeal ruled that the trial court did not err by providing PC 29.4(b) since the trial court’s other instructions were consistent with CALCRIM 625.

Sept. 2, 2025 – Segura v. Superior Court of Orange County (4th Dist., Div. 3, G65079)

Where defendant was charged with four misdemeanors, the trial court’s denial of defendant’s PC 1001.80 motion for military service diversion was error because it applied the legal requirement for felony offenses, not misdemeanors. The trial court denied the motion because that there was no nexus between the incident and Defendant’s military service.

Aug. 29, 2025 – People v. Isayev (C101402)

The availability of a youth offender parole hearing under section 3051 renders a juvenile offender ineligible for recall and resentencing under PC 1170(d). Because defendant is statutorily eligible for a youth offender parole hearing at the age of 42, his 50-years-to-life sentence is not the functional equivalent of an LWOP term. The Court reversed the order granting defendant’s PC 1170(d) petition.

Aug. 29, 2025 – Arriaga v. Superior Court (2nd Dist., Div. 3, B340795)

16-year delay between felony complaint filing and arraignment violated defendant’s state speedy trial right. PC 484b requires proof construction payments were fraudulently diverted, and death of defendant’s co-worker prejudiced his potential defense the funds were spent on legitimate project costs. As prosecution could not justify the delay where it took no steps to locate or notify defendant after filing complaint, dismissal motion must be granted.

Aug. 29, 2025 – People v. Hart (4th Dist., Div. 1, D083280)

In proceedings pursuant to PC 1172.6, the trial court did not err by admitting defendant’s 2021 statements to a state forensic psychiatrist admitting that he was the shooter. Defendant’s statements were made for a comprehensive risk assessment for the parole board. Because defendant was not the psychiatrist’s patient and defendant was informed their conversation was not confidential, the statements did not fall under the psychotherapist-patient privilege (EC 1014). Additionally, incriminating statements made by a prisoner during parole proceedings do not violate the privilege against self-incrimination.  Also, the doctrine of issue preclusion did not preclude the trial court from relying on a theory that defendant was the actual killer even though the 1996 jury found not true a personal firearm use allegation. Issue preclusion does not apply because defendant’s personal use of the gun is not an “ultimate fact” that has to be proven beyond a reasonable doubt to find him guilty of murder. 

Aug. 27, 2025 – People v. Mendez-Torres (1st Dist. Div. 5, A168697)

The Court of Appeal holds that modified CALCRIM 1600 as given to the jury misstated the law on the force needed for robbery when a defendant does not physically touch the victim. The instruction stated that the force required need only be some amount “more than the incidental touching necessary to take the property.” However, the use of any force that overcomes any physical resistance by a victim is sufficient to establish a robbery. Because the court’s instruction defined the force solely in terms of the force exercised by the defendant, the jury could have found defendant guilty of robbery even if it did not find that the victim physically resisted.

Aug. 28, 2025 – People v. Aguirre (S175660)

Judgment of death reversed, where the gang findings must be reversed because of retroactive changes in the law made by AB 333. The AG conceded that this case, which was tried in 2009, did not meet the increased showing required to prove a “pattern of criminal gang activity,” specifically two predicate offenses involving a common benefit to the gang that was more than reputational. (PC 186.22, subd. (e)(1).) Because the gang-murder special circumstance was the only special circumstance allegation, the judgment of death must be reversed. However, Evidence Code section 352.2 does not apply retroactively. This statute articulates a neutral rule of evidence, and does not implicate Estrada’s presumption of retroactivity. There is not a close enough relationship between the substantive provisions of the statute and the possibility of lesser punishment, more lenient treatment, or reduction of criminal liability. (Dis. opn., J. Liu.) 

Aug. 27, 2025 – People v. Midell (1st Dist. Div. 2, A168758)

The Court of Appeal holds that defense counsel’s likening of appellant to an “animal” was a defense tactic, thus appellant is procedurally barred under invited error from using those references as a basis for reversal under the Racial Justice Act (RJA, PC 745). Nor did the trial court have a sua sponte duty to inquire into counsel’s potential RJA violation. The Court finds appellant forfeited any RJA claim based on the trial court’s description of appellant’s conduct as “animalistic” by failing to object at the time. The Court finds that mental delusions are inadmissible under PC 28 as a defense to battery of a custodial officer (PC 243.1), a general intent crime.

Aug. 27, 2025 – People v. Baldwin (5th Dist., F088265)

Denying PC 1170(d) relief to juvenile offender sentenced to 44 to life does not violate constitutional equal protection. 44 to life term will not result in “certain death in prison” and is therefore rationally distinguishable from LWOP for equal protection purposes.

Aug. 25, 2025 – People v. Gutierrez (2nd Dist., Div. 5, B337683)

An indigent defendant who alleges facts constituting a prima facie case for PC 1473.7 relief is entitled to appointed counsel upon request. The trial court therefore erred when it denied appointed counsel on ground the defendant was not in immigration custody and thus able to attend the PC 1473.7 hearing, an error rooted in an unduly narrow reading of People v. Fryhaat (2019) 35 Cal.App.5th 969. The error also prejudiced the defendant and requires a new PC 1473.7 hearing.

Aug. 25, 2025 – People v. Fletcher (S281282)

AB 333 applies to the determination of whether a prior conviction qualifies as a serious or violent felony under PC 1192.7(c)(28) for purposes of the Three Strikes law and prior serious felony enhancements. AB 333 does not unconstitutionally amend Proposition 21 or Proposition 36 and applies to all nonfinal judgments. The Court vacated the true findings that defendants’ 2015 convictions qualify as prior serious felony convictions and remanded for any retrial of the allegations under PC 186.22 as amended by AB 333.

Aug. 25, 2025 – People v. Wright (2nd Dist., Div. 8, B336249)

The Court of Appeal affirmed appellant’s robbery conviction but remanded the case for resentencing due to two sentencing errors.  The trial court erred by imposing multiple punishments for felon in possession of a gun and illegal possession of ammunition because the only ammunition was in the pistol.  The possession of the firearm and the ammunition were one “act” within the meaning of PC 654.  Additionally, the trial court erred by denying appellant’s right to trial by jury on a sentencing enhancement following the Supreme Court of the United States decision in Erlinger v. United States (2024) 602 U.S. 821.

Aug. 20, 2025 – People v. Singleton (2nd Dist., Div. 7, B341793)

Court of Appeal follows People v. Boyd (2024) 103 Cal.App.5th 56 and disagrees with People v. Codinha (2023) 92 Cal.App.5th 976 in holding an unauthorized sentence does not confer jurisdiction on a trial court to modify a final judgment. Correcting an unauthorized sentence is only possible where court otherwise has jurisdiction. Here, the letter from the CDCR case manager did not satisfy jurisdictional requirements of PC 1172.1(a)(1). Accordingly, the increased sentence trial court imposed by fixing the error is void and the original sentence reinstated.

Aug. 18, 2025 – People v. Cannon (S277995)

Aug. 18, 2025 – People v. Alvarez (Supreme Court, S089619)

The Court struck down the $200 parole revocation fine imposed under PC 1202.45 because, in addition to his death sentence, appellant was sentenced to an indeterminate sentence of 25 years to life. The Court cites case law holding that the parole revocation fine does not apply in cases where the defendant is sentenced to life without the possibility of parole and indeterminate terms. The court otherwise affirmed the judgment.

Aug. 18, 2025 – People v. Dejesus-Galindo (1st Dist., Div. 4, A166451)

The jury was improperly instructed on using the same testimony for both charged and uncharged sexual offenses (CALCRIM 1191), but any error was harmless beyond a reasonable doubt. Jane Doe 3’s testimony included evidence of charged offenses against her (counts 7 and 8) and also uncharged offenses (EC 1108). The jury was told it could apply a lesser burden of proof to the uncharged offenses, and then consider whether that evidence supported findings of proof beyond a reasonable doubt for counts 7 and 8. The Court of Appeal was “skeptical” the jury could effectively apply the instructions, especially without guidance from the court. However, because the instructions did not lower the standard of proof, the harmless-error standard applied, and the error was harmless beyond a reasonable doubt.

Aug. 15, 2025 – Gomez v. Superior Court (3rd Dist., C102211)

The trial court abused its discretion in denying mental health diversion where the prosecution had not rebutted the “significant factor” presumption. Under PC 1001.36(b)(2), the prosecution must present clear and convincing evidence that the defendant’s mental disorder was not a contributing factor in the offense. The absence of evidence that a mental disorder was a factor in the commission of the offenses does not amount to substantial evidence supporting a finding that the mental disorder was not a factor in the offense. The trial court also abused its discretion in finding defendant would pose an unreasonable risk of danger if treated in the community where defendant had no criminal history, much less prior super-strike charges or convictions; the charge at issue was not a super strike; and at the time of the hearing, defendant had been in the community for approximately one year without reoffending.

Aug. 14, 2025 – People v. Skaggs (1st Dist., Div. 3, A170942)

The trial court erred when it construed defendant’s nonstatutory motion to dismiss parole revocation petition on due process grounds as a PC 1385 motion and concluded that it lacked authority to consider the motion. Minimum due process protections apply to parolees facing revocation and the court had jurisdiction to entertain the motion. The appeal, however, was dismissed as moot because Skaggs completed his sentence and parole supervision terminated

Aug. 13, 2025 – People v. Pena (2nd Dist., Div. 7, B331827)

The Court of Appeal holds that the language in PC 136.2(i)(1) authorizing the court to issue a protective order for “a victim of the crime” means a victim of one of the enumerated crimes in the subdivision the defendant was convicted of committing. Thus, the trial court had authority to issue a protective order under PC 136.2(i)(1) to protect Evelin, who was “a victim of the crime” the jury convicted Pena of committing. But because Nathaly was not a victim of that crime, but of other crimes in which the jury was unable to reach a verdict, the trial court did not have authority to issue a protective order under PC 136.2(i)(1) protecting her.

Aug. 12, 2025 – People v. Hayde (4th Dist., Div. 3, G063442)

The trial court abused its discretion when it declined to resentence Hayde and impose a lower term under PC 1170.91. After finding Hayde eligible for resentencing relief under PC 1170.91, the trial court concluded he was not suitable because there was no connection between his mental health issues related to his military service and his commission of the offenses. The court erred because: 1. PC 1170.91 resentencing turns on whether the mental disorders are related to military service, and not criminal conduct, 2. it refused to consider Hayde’s post-conviction rehabilitation, a highly relevant factor to suitability, and 3.  failed to address other factors that support resentencing.

Aug. 5, 2025 – People v. Fleming (2nd Dist., Div. 6, B315836)

The Court of Appeal holds that voluntary manslaughter (PC 192(a)) based on conscious disregard for life does not require that the defendant’s act carry a high degree of probability that it will result in death. The Court remands the case for resentencing based on the retroactive application of PC 1170(b) and 654. The Court finds remand necessary because the record does not “clearly indicate” that under amended 1170(b) the trial court would imposed the upper term. Because this remand entitles appellant to a full resentencing, the trial court will be allowed to exercise its discretion under amended PC 654 to choose a lesser sentence.

Aug. 5, 2025 – People v. Harlow (4th Dist., Div. 1, D084252)

Trial court erred when it found defendant ineligible for mental health diversion. Defendant was diagnosed with a qualifying mental health disorder three years after the charged crime and the prosecution produced no clear and convincing evidence to rebut PC 1001.36’s presumption of causal connection. Conditionally reversed and remanded with directions to find defendant eligible and consider whether he is suitable for mental health diversion.

Aug. 4, 2025 – In re Ja O. (S280572)

While the case was pending, AB 81 was passed specifying that the extended-family inquiry duty under ICWA applies whenever a child is placed into a county welfare department’s temporary custody, regardless of whether the child is removed from the home with or without a warrant. The Supreme Court addressed whether the extended-family inquiry duty applied to pre-AB 81 cases.  The Court concluded that AB 81 clarified, rather than changed, exisiting law. Therefore, the extended-family inquiry duty applied in the present case where the child was placed into a temporary custody after being removed from the home pursuant to a warrant under WIC 340.

Aug. 4, 2025 – People v. Dain (S283924)

Court of Appeal erred, after finding abuse of discretion in granting Romero motion, by directing trial court to reinstate the strike and sentence under the Three Strikes law. In such a situation, “the proper remedy is ordinarily a remand” to allow trial court to reconsider Romero “informed by the appellate court’s clarification of the governing law.” Over a dissent, remand appropriate here because “limitations” in appellate record fail to foreclose possible Romero relief, notwithstanding defendant’s extensive criminal history.

July 31, 2025 – In re L.M. (1st Dist., Div. 3, A171105)

Mother challenged the juvenile court’s order of visitation between a dependent and a nondependent sibling arguing the statutory provisions were unconstitutional, or in the alternative, an abuse of discretion. The appellate court recognized that the statutory provisions did not expressly protect a parent’s constitutional right to direct the upbring of a nondependent sibling but affirmed the juvenile court’s orders. In deciding whether to order sibling visitation, the juvenile court must consider and respect the decision of a parent who is presumed fit, even if the court ultimately overrules a parental objection. The ordered sibling visitation was not an abuse of discretion.

July 31, 2025 – People v. Faial (S273840)

AB 1950 may be applied retroactively under Estrada to shorten the defendant’s period of probation if the defendant’s case is not final, even if the defendant’s probation was properly terminated before the passage of AB 1950. Thus, if a probation term is shortened to two years under amended section 1203.1, conduct that would have constituted a probation violation, but is now deemed to have occurred outside this term, may not be the basis for terminating that probation. The effect of applying AB 1950 retroactively to shorten the period of probation in these circumstances is an effect “fairly contemplated” within the legislation’s underlying purpose.

July 30, 2025 – People v. Christensen (4th Dist., Div. 3, G062920)

An 18-year-old’s LWOP sentence for aggravated kidnapping does not constitute cruel and unusual punishment under the United States and California Constitutions. Appellant’s argument—that the Eighth Amendment prohibition on LWOP for juvenile offenders should also apply to 18-year-olds—has been rejected multiple times by both the United States and California Supreme Courts. Further, his sentence is not disproportionate to his culpability under the California Constitution based on his criminal history and his inhumane conduct during the kidnapping.

July 30, 2025 – In re Hunter V. (2nd. Dist, Div. 7, B339028)

Father appealed from jurisdiction and disposition. Father’s appeal was not moot even though mother had not appealed the jurisdictional and dispositional findings. Using the Chapman standard, the appellate court found that the juvenile court violated father’s due process rights by amending the peititon as to father, which established jurisdiction under a different set of facts and different legal theory, without providing him notice and an opportunity to be heard. The errors were not harmless beyond a reasonable doubt. The juvenile court also violated father’s statutory right under Penal Code 2625 to be present at the jurisdictional hearing.

July 30, 2025 – Review Grant – People v. Andrews (S290832)

Appellant’s petition for review was granted in the appeal from a resentencing order pursuant to PC 1172.1 after CDCR recommended resentencing. In the Court of Appeal, appellant contended the trial court failed to meaningfully modify her sentence and abused its discretion.

July 29, 2025 – In re Huerta (5th Dist., F088041)

A RJA claim under PC 745 (a)(3) and (a)(4)(A) must allege facts showing racial disparities tied to a qualifying offense—not merely enhancements. Petitioner filed a habeas writ alleging RJA violations under (a)(3) and (a)(4)(A), based on charging and sentencing related to his gang enhancements. For a claim under (a)(3), the petitioner must allege facts showing he was “charged or convicted of a more serious offense” than similarly situated individuals of other races, and under 745(a)(4)(A), petitioner must allege facts showing he received a longer sentence than “similarly situated individuals convicted of the same offense.” The gang enhancements are not qualifying “offenses” under these subdivisions and cannot alone support an RJA claim.

July 29, 2025 – People v. Torres (3rd Dist., C100501)

When the underlying base sentence already exceeds 20 years, PC 1385(c)(2)(C) does not weigh in favor of the dismissal of an enhancement, because the enhancement itself must cause the sentence to exceed 20 years to qualify. Based on the plain language of the statute, the court disagreed with defendant’s argument that subdivision (c)(2)(C) applies whenever an enhancement is a component of a sentence that exceeds 20 years. To forestall appellant’s claim of ineffective assistance of counsel, the court reached the merits of the claim despite the lack of an objection.

July 28, 2025 – Criminal Justice Legal Foundation v. Dept. of Corr. & Rehab. (3rd Dist., C100274)

Proposition 57 permits CDCR to award custody credits beyond those authorized by statute, but does not permit awarding credits to advance indeterminate sentence parole eligibility date in manner conflicting with a statute. Therefore, regulations conflicting with, for example, PC 190(e) [conduct credits may not decrease minimum term for PC 187 sentence], are invalid.

July 28, 2025 – People v. Gresham (2nd. Dist, Div. 8, B332270)

Willfully resisting arrest under PC 148 (a) does not require proof that a defendant “actually knew” that the person being resisted was a peace officer acting in the lawful performance of official duties. Applying People v. Lopez (1986) 188 Cal.App.3d 592, and rejecting In re A.L. (2019) 38 Cal.App.5th 15, the court found that PC 148 (a) requires that a defendant “knew or reasonably should have known” he was resisting an officer. Under this standard, substantial evidence supported defendant’s conviction, even where the defendant showed evidence he was suffering from schizoaffective disorder and a head injury, and did not know the men grabbing him from behind were officers. J. Wiley concurred, but would have found that the word “willfully” in PC 148 (a) should be construed to mean “recklessly,” i.e., “consciously disregarded a substantial and unjustifiable risk.” The trial court also properly denied defendant’s Pitchess motion where defendant failed to show a plausible factual foundation for the discovery because the interactions were captured on video.

July 24, 2025 – X.K. v. M.C. (1st. Dist., Div. 4, A170020)

Physical abuse, sexual abuse, and conduct that disturbs a victim’s peace may be domestic violence justifying a domestic violence restraining order under the Family Code. (Fam. Code, § 6200 et seq.)  [Editor’s Note: Under PC 136.2, a criminal court may issue a criminal restraining order pursuant to section 6320 of the Family Code, and may use some of the definitions of domestic violence and abuse under the Family Code.] 

July 23, 2025 – People v. Cunningham (2nd. Dist., 6th Div.)

The trial court correctly denied at the prima facie stage appellant’s PC 1172.6 petition for resentencing for provocative act murder. On transfer for reconsideration in light of People v. Antonelli (2025) 17 Cal.5th 719, the court of appeal held that the 2009 change in the law pertaining to a nonprovocateur defendant had no bearing on this case where the defendant was the provocateur. The provocative act doctrine has always required the defendant must personally act with malice when the defendant is the provocateur. Based on the language of the instructions as given, the verdict establishes that the jury necessarily found appellant personally committed an intentional provocative act with implied malice.

July 23, 2025 – People v. Benitez-Torres (4th Dist., Div. 3, G063400)

Defendant’s PC 1473.7 petition should have been granted. There was a reasonable probability defendant did not meaningfully understand the immigration consequences of his guilty plea (which was mandatory deportation), where retained counsel did not appear to understand federal immigration laws or his own obligations under Padilla. While the felony plea form told defendant that he would be removed, such advisements do not replace the advisement of counsel. Corroborative evidence supported that defendant would not have pleaded guilty where defendant was a lawful permanent resident, brought to the US at 12 years old, his wife was a US citizen, and he had five children; there were obvious challenges the to the search and a colorable trial defense; and it was unlikely appellant would have risked the maximum sentence if he went to trial.

July 21, 2025 – People v. Choyce (S169090)

In this automatic appeal, the California Supreme Court rejected multiple asserted instructional errors related to the guilt phase, including refusal to instruct on voluntary manslaughter and failing to instruct that rape requires an alive victim.

July 21, 2025 – People v. Cota (6th Dist., H051229)

The Court of Appeal holds that CDCR’s failure to notify the superior court about appellant’s eligibility for resentencing does not deprive the trial court of jurisdiction because CDCR’s PC 1172.75 notification obligation is directory and not mandatory or jurisdictional. Additionally, the court holds that PC 1172.75 requires resentencing where prison priors were imposed but the punishment was struck.

July 17, 2025 – People v. Lara (5th Dist., F086534)

After initial competency exam raised “reasonable question” as to whether the defendant was developmentally disabled, trial court erred by failing to appoint regional center director to assess competency. (PC 1369(a)(2).) Prejudice established because examining expert, who deemed defendant competent despite 65 IQ, lacked “demonstrated expertise” in evaluating the developmentally disabled and assessing competence in that population. Murder conviction reversed.

June 17, 2025 – People v. Reyes (2nd Dist., Div. 6, B329858)

The Court of Appeal holds that PC 1109(a)’s requirement that a gang enhancement to be tried separately from the underlying offense, if requested by the defense, does not prohibit a jury from considering evidence admitted during the guilt phase.

July 16, 2025 – Review Grant – People v. Luu (S291235)

This case presents the following issue: Is a person convicted of attempted voluntary manslaughter eligible for resentencing relief under Penal Code section 1172.6?

July 15, 2025 – People v. Thompson (2nd Dist., Div. 3, B333097)

The Court of Appeal affirms the trial court’s order denying appellant relief under PC 1170(d). Appellant was sentenced to 50 years to life for a homicide committed when he was 17 years old. The trial court denied his petition for relief pursuant to PC 1170(d)(1) which authorizes juvenile offenders sentenced to LWOP to petition for the recall of their sentences and resentencing. The Court of Appeal finds that appellant failed to demonstrate, for equal protection purposes, that the LWOP limitation on eligibility for section 1170(d) relief has no rational basis as applied to juvenile homicide offenders sentenced to serve 50 years to life.

July 14, 2025 – People v. Brinson (1st Dist., Div. 3, A171744)

The denial of a defendant-initiated PC 1172.1 resentencing request is a non-appealable order. The opinion continues unanimous trend (see e.g. People v. Roy (2025) 11 Cal.App.5th 991, petn. for review pending, petn. filed May 30, 2025, S291146) and also rejects the argument that PC 1171 governs over more specific provision of PC 1172.1(c).

July 14, 2025 – People v. Valle (2nd Dist., Div. 6, B338909)

The Court of Appeal affirms appellant’s conviction for possession of a sharp instrument in prison (PC 4502). The Court holds that PC 4502 is not unconstitutionally vague and appellant’s sharpened piece of hard, non-flexible plastic is a sharp instrument under PC 4502. Additionally, the statute was not applied unconstitutionally because a reasonable person would understand they were not permitted to possess such an item.

July 9, 2025 – Review Grant – People v. Woods (S290581)

This case presents the following issue: Must workers’ compensation insurance fraud involving a kickback scheme be prosecuted as a misdemeanor under Labor Code section 139.32, subdivision (c), or may it be prosecuted as a felony under Penal Code section 550, subdivision (b)(3)? (See In re Williamson (1954) 43 Cal.2d 651.)

July 9, 2025 – Review Grant – People v. Henderson (S291105)

Review granted on the following question: Does Penal Code section 1385.1, which bars sentencing courts from striking special circumstance findings, apply to Penal Code section 1172.6 resentencing proceedings for murder convictions occurring prior to the June 6, 1990 effective date of section 1385.1?

July 8, 2025 – People v. Superior Court (Broadway) (4th Dist., Div. 1, D085508)

The Court of Appeal holds that Behavioral Health Court proceedings constitute a “pending trial or hearing” within the meaning of PC 170.6(a)(1). The Court reasons that, while the screening and acceptance process is collaborative, it nevertheless involves judicial decisions regarding potentially contested matters of fact. Therefore, the court granted the writs of mandate (this case involved two similarly situated criminal cases), directing the trial court to grant the prosecution’s peremptory challenges.

July 8, 2025 – Gray v. Superior Court (5th Dist., F08805)

House where child engages in public charter school independent study program is not a “school” under WIC 6608.5(f), as it is not a “school” under the Education Code and interpreting WIC 6608.5(f) more broadly would lead to absurd results. Accordingly, the trial court erred in denying an SVP conditional release to an adjacent property on this basis.

July 3, 2025 – People v. Jimenez (6th Dist., H049356)

The Court of Appeal holds that the trial court properly denied, without prejudice, appellant’s motion to dismiss the felony-murder special circumstance (PC 190.2(a)(17)) on RJA grounds, finding that the report on which appellant relied was “logically infirm,” omitted “necessary and apparently available information,” and failed to engage with the RJA’s “similarly situated” requirement.

July 3, 2025 – In re C.R. (2nd. Dist, Div. 3, B341335)

In an appeal from the denial of a WIC 388 petition and termination of parental rights, mother argued that the Department’s ICWA inquiry of several maternal relatives was inadequate. The Court of Appeal affirmed. The maternal grandmother had been questioned about possible Indian ancestry in mother’s own dependency case. Also, the juvenile court could reasonably conclude that there was no reason to question maternal grandmother again and that maternal aunt and maternal cousin woudl not have any more information about the family’s potential Indian ancestry.

June 27, 2025 – People v. Miller (1st Dist., Div. 5, A170047)

The Court of Appeal holds that appellant is ineligible for relief under PC 1172.6(a)(1) which requires a prima facie showing that “the charging document filed against [a defendant] must have allowed the prosecution to proceed under a theory of murder liability that is now invalid.” Because the amended information charging the felony murder was filed a year after the felony murder rule was amended by SB 1437, the charging document did not allow the prosecution to proceed under the now abolished theory of felony murder that imputed malice “based solely on” appellant’s “participation in” the kidnapping.

June 27, 2025 – People v. Bray (6th Dist., H051237)

The Court of Appeals holds, in a case involving a conviction for possession of child pornography (PC 311.11(c)(1)), that although the internet was used as an instrumentality to commit the crime, the probation condition prohibiting all access to the internet is overbroad.  The Court holds that the probation condition prohibiting dating, socializing with, or forming a romantic relationship with any person who has physical custody of a minor child without approval from probation is overbroad. The conditions prohibiting pornography are unconstitutionally vague because pornography is not defined.

June 27, 2025 – City of Vallejo v. Superior Court (1st Dist., Div. 1, A171451)

Under the Pitchess statutes, documents pertaining to a police department investigation were personnel records related to a police shooting, subject to public disclosure. The investigation involved allegations that officers in the Vallejo Police Department bent a point of their star-shaped badges after incidents involving potentially lethal force. Following a third-party investigation and report, the ACLU sought access to those materials. After examining PC 832.7’s legislative history, the Court of Appeal broadly interpreted the phrase “related to” a police shooting to include materials relating to the investigation. Also, the redaction of officers’ names from the report cannot be sustained on the grounds relied on by the superior court, PC 832.7(b)(7), though the mandatory redaction provisions in PC 832.7(b)(6) weigh against the redaction of information pertaining to peace officers.

June 27, 2025 – People v Barnum (4th Dist., Div. 1, D082890)

The trial court properly instructed the jury on felony murder without including instructions regarding the independent felonious purpose rule. The rule, which originated under felony-murder special circumstance jurisprudence, requires the defendant to have had “an independent purpose” for the commission of the felony, that is, the commission of the felony was not merely incidental to the murder. The rule is not a requirement for felony murder, as opposed to the felony murder special circumstance. While the California Supreme Court has stated the felony must not be merely incidental to the killing, this principle does not appear to have been developed as a distinct element requiring sua sponte instruction. Additionally, the remaining instructions adequately instructed the jury that appellant must have possessed the intent to commit robbery at the time of the killing to be guilty of felony murder.

June 24, 2025 – People v. Dixon (2nd Dist., Div. 7, B335987)

The Court of Appeal holds PC 1172.75 give the superior court jurisdiction to conduct a resentencing hearing while a defendant has an automatic death penalty appeal pending in the Supreme Court.  Under PC 1172.75 the superior court may resentence a defendant on the noncapital portions of the sentence, but not on the death sentence.

June 24, 2025 – People v. Trent (3rd Dist., C096306)

The Court of Appeal holds that once a PC 1172.6 petition is granted and a defendant’s murder conviction vacated, the judgment is no longer final for purposes of Estrada retroactivity, entitling a defendant to the benefit of ameliorative legislation. The Court found that when the trial redesignated defendant’s murder conviction to assault with force likely to produce great bodily injury (PC 245, subd. (a)(4)), it erred in adding an enhancement for great bodily injury because that enhancement had not been pled or proven.

June 26, 2025 – People v. Wiley (S283326)

The Supreme Court holds that the trial court violated defendant’s federal constitutional right to a jury trial by adjudicating underlying facts related to two aggravating factors – the increasing seriousness of his prior convictions and his unsatisfactory performance on previous grants of probation – and relying on its conclusions to impose an upper term sentence.  The Court also holds that the PC 1170(b)(3) prior conviction exception to the jury trial right on aggravation factors is limited to the court deciding what crimes a defendant has previously committed and the elements of those crimes.

June 26, 2025 – Teran v. Superior Court (2nd Dist., Div. 5, B341644)

PC 502(c)(2)’s proscription on “use” of “data” “without permission” does not apply to “purely public data,” even when data stored in confidential database. Defendant working as sheriff’s department attorney obtained court decisions in deputy discipline cases from internal database and later, while working for prosecutor’s office in same county, emailed decisions to a colleague. Statutory purpose is combatting electronic hacking and interpreting PC 502(c)(2) to prohibit sharing of “purely public court records” would lead to arbitrary and unreasonable results. Court also unseals (CRC 2.550(c)-(e)) exhibits containing only publicly available information.

June 26, 2025 – People v. Rhodius (S283169)

PC 1172.75 entitles defendants to full resentencing when their judgments include a prior-prison-term enhancement that was imposed before 2020, regardless of whether the enhancement was executed or stayed.  PC 1172.75(a) provides that any enhancement that was imposed before 2020 is invalid and does not exempt stayed enhancements. The statute is most naturally read to mean that an enhancement is invalid if it was “imposed” before 2020, and not just “imposed and executed.” PC 1172.75 (b)(1) and (c)(1) also make clear that resentencing is not limited to those “currently serving a sentence based on the enhancement.”  Also, a new sentence under PC 1172.75(d)(1), must eliminate the adverse effects flowing from the invalid prior-prison-term enhancements. Removal of a stayed enhancement provides some relief by eliminating the potential for an increased sentence in certain circumstances.

June 25, 2025 – Review Grant – People v. Munoz (S290828)

Appellant’s petition for review granted where the Court of Appeal affirmed and issues raised included a claim that a 50-years-to-life sentence for a juvenile offender is the functional equivalent of LWOP.

June 24, 2025 – People v. Dixon (2nd. Dist., Div. 7, B335987)

Penal Code section 1172.75 gives the superior court jurisdiction to conduct a resentencing hearing while a defendant has an automatic death penalty appeal pending in the Supreme Court.  Under PC 1172.75, the superior court may resentence a defendant on the noncapital portions of the sentence, but not on the death sentence.

June 24, 2025 – People v. Munoz (1st Dist., Div. 5, A168292)

The trial court did not err in instructing the jurors with CALCRIM 563, that they need not unanimously agree on the specific overt act that the defendant committed in furtherance of the conspiracy to commit murder. CALCRIM 563 complies with the California Supreme Court’s holding in People v. Russo (2001) 25 Cal.4th 1124, 1128, and does not violate the Sixth Amendment. No unanimity instruction is required when, as here, there is only one conspiracy charged, and the only possible uncertainty is how the defendant perpetrated that conspiracy. The absence of an unanimity requirement on the specific overt act does not render PC 184 unconstitutionally vague as applied to defendant even though the prosecution alleged multiple overt acts that could arguably constitute planning activity.  PC 184 and CALCRIM 563 provide sufficient guidance as to what constitutes an overt act and how to distinguish overt acts from planning activity.

June 23, 2025 – People v. Ramos (4th Dist., Div. 3, G063231)

Transcripts from a co-defendant’s trial are admissible at PC 1172.6 evidentiary hearing. Based on the plain language of the statute, evidence from “any prior hearing or trial” is generally admissible, “including witness testimony.” (PC 1172.6 (d)(3).) Such evidence furthers the purposes of the statute, which is to search for the truth and to ensure that a petitioner’s culpability is commensurate with his actions. The testimonial evidence does not violate the Evidence Code, nor does it implicate a petitioner’s Sixth Amendment right to confront the witnesses. The Court of Appeal rejected the Attorney General’s concession on this issue.

June 23, 2025 – In re Brissette (5th Dist., F089603)

Habeas petition denied after court that imposed original, indeterminate term granted defendant compassionate release (PC 1172.2) but court in county that imposed subsequent, consecutive term for in-prison offense (PC 1170.1(c)) denied PC 1172.2 release. PC 1172.2 requires a single court to rule on compassionate release and a defendant sentenced under PC 1170.1(c) is serving one sentence imposed by the second court, not two sentences. The two statutes can therefore be harmonized, as only the second court is the sentencing court for PC 1172.2 purposes, and here it denied compassionate release.

June 23, 2025 – People v. Walts (5th Dist. F087907)

The Court of Appeal holds that the trial court erred in including the victim’s mother and siblings in a post-conviction criminal protective order under PC 136.2(i)(1).  Because the defendant was convicted of a single count of a violation of PC 288.5(a) and there was no evidence to suggest the mother or siblings were also victims of the charged PC 288.5 offense, only the named victim could be a protected party under PC 136.2(i)(1). The Court also held that the trial court erred in ordering defendant to submit to an HIV test because there was insufficient evidence of a transfer of bodily fluid from defendant to the victim.

June 17, 2025 – People v. Sinay (2nd Dist., Div. 6, B331391)

The trial court retained jurisdiction under Penal Code section 1202.4 to order victim restitution 30 years later. Additionally, appellant forfeited both his speedy trial claim related to the restitution hearing and his challenge to the 4.25% discount rate used to calculate the present value of the victim’s future wages by failing to raise these objections in the trial court.

June 17, 2025 – People vs. American Surety Company (2nd Dist., Div. 6, B338852)

The criminal court lost jurisdiction to forfeit a bail bond when it did not do so after defendant initially failed to appear. (PC 1305(a).) When defendant initially failed to appear, the court continued the bond without finding good cause. When defendant again failed to appear, the court forfeited the bond. The forfeiture was void because the court lost jurisdiction. Issue preclusion thus did not apply to the bail bond company’s later motion to set aside the summary judgment and discharge the forfeiture in civil court.

June 13, 2025 – In re Jayden A. (4th Dist., Div. 2, E084114)

In an appeal from jurisdiction and disposition, the Court of Appeal agreed that substantial evidence did not support the jurisdictional allegations against father. Since the jurisdictional findings were not supported, the dispositional order removing the minor from father’s custody must also be reversed. Even though there were jurisdictional findings as to mother, father’s jurisdictional challenge was not moot. In addition, even though the subsequent order in the juvenile court returning the child to father’s custody rendered the appeal moot, the appellate court exercised its discretion to review the merits of father’s challenge.

June 12, 2025 – People v. Ortega (4th Dist., Div. 3, G063201)

42 years to life sentence for a youthful offender is not the functional equivalent of LWOP under PC 1170(d)(1)(A), where the defendant has a meaningful opportunity for release during his 25th year of incarceration pursuant to PC 3051. The Court of Appeal expressly disagreed with People v. Heard (2022) 83 Cal.App.5th 608, which held that because section 1170(d)(1)(A) refers to the “offense for which the defendant was sentenced to” and Heard was sentenced to the functional equivalent of LWOP before section 3051 was enacted, Heard was eligible for relief under 1170(d)(1)(A) under equal protection principles. This court found that Heard’s analysis of the import of section 3051 could not be reconciled with People v. Franklin (2016) 63 Cal.4th 261.

June 12, 2025 – People v. Ortega (4th Dist., Div. 3, G063201)

42 years to life sentence for a youthful offender is not the functional equivalent of LWOP under PC 1170(d)(1)(A), where the defendant has a meaningful opportunity for release during his 25th year of incarceration pursuant to PC 3051. The Court of Appeal expressly disagreed with People v. Heard (2022) 83 Cal.App.5th 608, which held that because PC 1170(d)(1)(A) refers to the “offense for which the defendant was sentenced to” and Heard was sentenced to the functional equivalent of LWOP before PC 3051 was enacted, Heard was eligible for relief under 1170(d)(1)(A) under equal protection principles. This court found that Heard’s analysis of the import of PC 3051 could not be reconciled with People v. Franklin (2016) 63 Cal.4th 261.

June 12, 2025 – People v. Wagstaff (6th Dist., H050597)

The Court of Appeal holds that counsel’s failure to object to the court’s statements during jury selection and sentencing forfeited appellant’s RJA (PC 745) claims based on those statements. The preemptory challenge of a juror did not violate the RJA or PC 231.7.  The trial court was not required to instruct the jury on misdemeanor false imprisonment (PC 236) as a lesser included of felony false imprisonment (PC 237) because there was not substantial evidence that appellant committed a misdemeanor false imprisonment.

June 12, 2025 – In re Whalen (5th Dist., F085048)

The Court of Appeal finds that the certificate of appealability is “fatally flawed” in that the superior court twice ruled that petitioner’s claims were successive, but failed to comply with PC 1509.1(c)’s requirements that the court indicate that the petitioner had shown “a substantial claim for relief” in the certificate and identify which claims are being permitted to proceed on appeal. The Court of Appeal, therefore, dismisses the appeal and remands for the superior court to either deny the certificate of appealability or issue a new one compliant with PC 1509 –1509.1.

June 11, 2025 – Review Grant – People v. Hyatt (S290426/G063126)

Review granted on petition filed by District Attorney after Court of Appeal affirmed trial court’s dismissal of criminal charges based on PC 1381.

June 11, 2025 – People v. Lewis (1st Dist., Div. 2, A171414)

PC 1370(a)(2)(B) does not require an evidentiary hearing prior to court ordering involuntary medication for an incompetent defendant and no constitutional violation occurs as a result. Statute permits a ruling based on written expert reports and this protocol satisfies procedural due process under Mathews balancing test. No equal protection violation occurs despite PC 1370(a)(2)(C)-(D) [change of circumstance after initial hearing] and PC 2602-2603 [prison inmates] requiring pre-medication evidentiary hearing because a rational basis exists for treating other two affected groups differently.

Jun. 10, 2025 – In re A.O. (2nd Dist., Div. 1, B339164)

Mother appealed from findings and orders made at the 6-month review hearing. The Court of Appeal concluded that because a parent is aggrieved by an erroneous reasonable services finding, the parent may obtain appellate review of the finding, even if the parent is not challening any other part of that order. An erroneous reasonable services finding can impair a parent’s request for an extension of reunification services, thereby frustrating attempts at reunification. The appellate court affirmed, however, finding that substantial evidence supported the reasonable services finding.

June 9, 2025 – People v. Wilson (2nd Dist., Div. 6, B323666)

The Court of Appeal holds that in this sex trafficking case, defense counsel was not ineffective as a matter of law for failing to make an RJA (PC 745) objection to the prosecutor’s use during closing argument of the term “gorilla pimp,” which an expert testified was sex-trafficking slang for a physically abusive pimp, suggesting the issue instead should be resolved in a habeas proceeding.  The Court holds that the trial court did not error in sentencing appellant on both the trafficking (PC 236.1) and kidnapping (PC 207) convictions, finding that substantial evidence supports a finding the kidnappings were not for the sole purpose of trafficking.

June 4, 2025 – People v. Nino (2nd Dist., Div. 7, B333606)

The Court of Appeal holds that an actual killer may be eligible for relief under PC 1172.6 if the killer could have been convicted of second degree felony murder. At the time of appellant’s plea to second degree murder, he could have been convicted of second-degree felony murder based on the now-invalid imputed malice theory that he intended only to commit an inherently dangerous felony such as the grossly negligent discharge of a firearm. The Court reverses the superior court’s order denying appellant’s 1172.6 petition at the prima facie stage and remands with directions for the superior court to conduct an evidentiary hearing.

June 5, 2025 – People v. Nixon (3rd Dist., C101167)

The Court of Appeal upholds the postrelease supervision condition: “Defendant shall not use, create, or access social media website accounts.  A social media website is defined as ‘any internet website that allows users to post words or images which are accessible to the public, or to other users of the website.’ ”  The Court finds the condition is not vague because the definition clarifies the meaning of “social media.”  Nor is the condition overbroad because appellant used social media to make death threats, thus the trial court could have reasonably concluded that any website that allows public comments could be similarly used by defendant.

June 3, 2025 – People v. Grajeda (2nd Dist., Div. 7, B337664)

At PC 1172.75 full resentencing, defendant’s right to effective counsel violated when court refused his request for postponement to speak with his attorney. Constitutional right to counsel triggered when court found defendant eligible for resentencing and defendant appearing remotely did not waive that right, which includes ability to communicate confidentiality with lawyer during hearing. Further, defendant indicated he wished to consult his attorney regarding a motion to dismiss his firearm enhancement (PC 12022.53(h)), an applicable motion his attorney did not make. Denying consultation was presumptively prejudicial, rendering irrelevant court’s stated unwillingness to dismiss enhancement, and requires new resentencing hearing.

June 3, 2025 – People v. Porter (6th Dist., H052404)

Appellant properly convicted of violating VC 23123.5(a) for driving while viewing mapping application on handheld phone. Court of Appeal interprets statutory prohibition on “holding and operating” phone while driving to encompass “all use of a handheld phone’s functions,” and appellant’s conduct qualifies. Further, constitutional vagueness challenge to “operating” fails despite term being susceptible to multiple interpretations, as legislative history and statutory purpose enable “a reasonable construction.”

June 2, 2025 – People v. Emanuel (S280551)

Insufficient evidence supported that the defendant acted with reckless indifference to human life under People v. Clark (2016) 63 Cal.4th 522, and accordingly defendant’s PC 1172.6 petition must be granted. Defendant set out to commit a robbery in a public place in the middle of the afternoon, which may have had the potential for minimizing violence. He was not armed and did not know his co-defendant was armed or likely to use lethal force. The crime unfolded quickly without a prolonged period of restraint. When met with unexpected resistance, defendant told his co-defendant, “let’s go,” and began to walk away, tending to show he was unwilling to engage in further violence to accomplish the robbery. The courts below erroneously would have had defendant do more to intercede, such as attempt to disarm his co-defendant. “Such a mechanical focus on unsuccessful or inadequate efforts at restraint risks imposing murder liability based solely on a defendant’s participation in an underlying felony in which a death occurs,” which is precisely what SB 1437 prohibits.

June 2, 2025 – Cert. Grant – Case v. Montana (24-624)

The United States Supreme Court granted review on the following question related to the community caretaking (“emergency-aid”) exception to warrant requirements: “Whether law enforcement may enter a home without a search warrant based on less than probable cause that an emergency is occurring, or whether the emergency-aid exception requires probable cause.”  Note: Current California law appears to permit a “community caretaking”/ “emergency-aid entry” based on a threshold substantially below probable cause: “that articulable facts support a reasonable belief that an emergency exists.” People v. Ovieda (2019) 7 Cal.5th 1034, 1048; see also id. at 1047 (“articulable facts that can support a reasonable suspicion of the need to enter to deal with an emergency”).

May 29, 2025 – Schneider vs. Superior Court of Los Angeles County (2nd Dist., Div. 7, B341712)

When a trial court determines that Brady materials are contained in a police officer’s file, the court must disclose all Brady material to defendant. Defendant filed a discovery motion seeking Brady material (Brady v. Maryland (1963) 373 U.S. 83) contained in six sheriff’s department deputies’ personnel files. After finding that the files of four deputies contained Brady material, the court denied defendant’s request for disclosure of the material itself. Instead, the court ordered limited disclosure of the names, addresses, and telephone numbers of complainants and witnesses under the Pitchess statutory scheme (PC 832.7 and 832.8 & EC 1043-1045). The Court of Appeal found that the disclosure limitations of Pitchess do not apply to Brady materials and defendant’s right to a fair trial requires compliance with Brady.

May 28, 2025 – In re D.B. (6th Dist., H051945)

In this appeal by a minor, the Court of Appeal concluded that WIC 213.5(a) vests the juvenile court with authority to issue restraining orders against a dependent child. When exercising its discretion to make such orders, the juvenile court must consider the child’s best interests. Because the minor agreed to the termination of reunification services, the order did not violate her constitutional interests in the dependency proceedings. The appellate court found substantial evidence supported the orders and affirmed the juvenile court’s ruling.

May 28, 2025 – People v. Duenas (2nd Dist., Div. 8, B335274)

After granting habeas relief regarding unauthorized portion of defendant’s sentence, trial court erred by refusing to conduct full resentencing and failing to apply AB 333 ameliorative changes to gang enhancements. Grating habeas relief on portion of sentence has effect of vacating entire sentence and rendering judgment nonfinal, thereby requiring full resentencing that includes applying AB 333. Over a dissent, majority rejects contrary holding in People v. Esquivias (2024) 103 Cal.App.5th 969, review granted October 2, 2024, S286371.

May 27, 2025 – People v. Shiveley (4th Dist., Div. 1, D082912)

Gang enhancement allegations reversed because the prosecution failed to present sufficient evidence that the predicate offenses provided a more-than-reputational common benefit to the gang. A jury convicted defendant of 57 counts of conspiracy, burglary, attempted burglary, and robbery, and found true gang allegations on some counts. The gang expert testified that burglary is the gang’s primary activity because it is financially lucrative. But the expert did not testify that the five predicate burglaries financially benefited the gang rather than the individual gang members who committed the burglaries.

May 22, 2025 – In re Rogowski (4th Dist., D084748)

The Court of Appeal upholds the Governor’s decision to reverse the Board of Parole Hearings’ decision and deny parole to petitioner, an inmate serving an indeterminate life sentence for rape and murder. The court emphasizes that judicial review of a governor’s parole suitability decision is “conducted under the highly deferential ‘some evidence’ standard,” and, here, the petitioner’s inconsistent statements regarding his personal history, the facts of the assault, and his psychological symptoms before and during the murder support the Governor’s conclusion that petitioner lacks self-control and insight into his sexual sadism disorder and continues to pose an unreasonable risk to public safety.

May 21, 2025 – People v. Brown (2nd Dist., Div. 6, B337098)

The Court of Appeal holds that appellant is eligible to petition for dismissal of his felony conviction under PC 1203.41, notwithstanding that he was not sentenced to state prison until his probation was revoked. In reaching this conclusion, the Court examined the plain language of the statue and found that nothing in its language requires an original prison sentence.

May 21, 2025 – People v. Mathis (1st Dist., Div. 5, A168363)

In appeal from PC 1172.75 resentencing, PC 654 claim rejected where original sentence came via plea bargain (CRC 4.412) and recent AB 518 amendment inapplicable. No error in upper term sentence where court properly weighed PC 1170(b)(6) mitigating factors; further, no Sixth Amendment or PC 1172.75(d)(4) error in imposing upper term when that was the term originally imposed, continuing Court of Appeal split on issue where review was recently granted. (See People v. Eaton (Mar. 14, 2025, C096853) [nonpub. opn.], review granted May 14, 2025, S289903.)

May 20, 2025 – People v. Millan (5th Dist., F087198)

In a child abuse case involving co-defendants mother and father, the Court of Appeal holds that substantial evidence does not support the jury’s true finding that the mother inflicted great bodily injury under PC 12022.7.  While the court agreed that the mother failed to fulfill her duty to protect her son from the father’s abuse, which formed the basis for the mother’s aiding and abetting liability on the offenses of assault with force likely to produce great bodily injury and felony child abuse, the court finds that “[i]njury inflicted through an intermediary is not ‘personally’ inflicted within the meaning of section 12022.7.”

May 20, 2025 – People v. Richee (4th Dist., Div. 3, G062770)

Multiple instructional errors required reversal of two attempted murder counts, but were harmless beyond a reasonable doubt as to the murder count. Among other errors, the trial court erred by instructing the jury on natural and probable consequences theories after the passage of SB 775. Reversal was required for appellants’ two attempted murder convictions because nothing in the instructions required an intent to kill the attempted murder victims.  However, the error was harmless beyond a reasonable doubt as to the murder conviction, because the instructions still required the jury to at least find that appellants conspired to kill one victim. The court’s error in failing to instruct on the elements of the drive-by special circumstance was harmless because none of the elements of the special circumstance were contested, and as above, the murder verdicts necessarily found at least that appellants conspired to kill Gonzalez. The defendant’s inculpatory statement to his girlfriend on the night of the shooting was admissible as a party admission.

May 19, 2025 – McDaniel v. Superior Court of San Mateo County (1st Dist., Div. 3, A171858)

The Court of Appeal holds that a defendant may meet the threshold showing of good cause for discovery under the RJA with statistical evidence alone. The Court reasoned that, at the discovery phase, parties need only show plausibility based on specific facts, which can be done through case-specific facts, “statistical facts relevant to the charges and individuals involved,” or both.

May 19, 2025 – Beasley v. Superior Court (Riverside Co. App. Div., JAD25-04)

Trial court properly rejected demurrers to traffic infraction citations issued on outdated Judicial Council forms. A form previously approved by the Judicial Council constitutes a “form approved by the Judicial Council” under VC 40513(b) and functions as a valid charging document.

May 15, 2025 – In re B.L. (4th Dist., Div. 2, E085039)

Mother challenged the sufficiency of the evidence to support the jvuenile court’s decision to assume dependency jurisdiction over her child pursuant to WIC 300 (b) and also argued the court abused its discretion in requiring monitored visitaton. The appellate court affirmed finding no error in the jurisdictional finding or the monitored visitation requirement. The failure to contest the WIC 300 (e) allegation was “fatal” since dependency jurisdiction may rest on a single ground.

May 14, 2025 – Review Grant – People v. Eaton (S289903)

This case presents the following issue: May a trial court reimpose a previously imposed upper term sentence under Penal Code section 1172.75, subdivision (d)(4) where the facts underlying one or more aggravating circumstances were neither stipulated to by the defendant nor found true beyond a reasonable doubt at trial by the jury or by the judge in a court trial (cf. Pen. Code, § 1170, subd. (b)(2); id., § 1172.75, subd. (d)(2))?

May 13, 2025 – In re R.M. (4th Dist., Div. 2, E083229)

In an appeal by maternal grandmother, the Court of Appeal affirmed the juvenile court’s finding that visits were detrimental to the children’s well-being, and that the orders that maternal grandmother receive no further visits and summarily denying her WIC 388 petition were not abuses of discretion. The appellate court stated that a grandparent does not have an absolute right to visit a dependent child, only the right to have the juvenile court consider whether such visitation shall occur.

May 13, 2025 – People v. Horton (2nd Dist., Div. 8, B337373)

Where defendant convicted of stalking and criminal threats but acquitted of criminal threats against victim’s father, protective order issued under PC 646.9(k) properly included the father. Standard for issuing statutory protective order is not proof beyond a reasonable doubt but rather whether “some evidence” supports a finding defendant harmed or attempted to harm father. However, order that defendant sentenced to prison not possess any dangerous or deadly weapons constituted unauthorized sentence as firearm (PC 29800) and ammunition (PC 30305) prohibitions for felons do not extend to other weapons.

May 12, 2025 – People v. Hinojos (2nd Dist., Div. 1, B331540)

Two of defendant’s three convictions under the gang conspiracy statute (§ 182.5) must be stayed pursuant to section 654 because they a arose from the same course of conduct, an attack on a prison inmate by individuals associated with the Mexican Mafia. Section 654 does not bar imposition of the gang enhancement (§ 186.22 (b)(1)(C)) on defendant’s gang conspiracy convictions because the gang enhancement punishes aspects of criminal conduct beyond those in the gang conspiracy statute. Even though defendant was not serving a life sentence, he could be convicted of gang conspiracy to commit assault by a life prisoner when the two actual attackers were serving life sentences. The trial court did not improperly instruct the jury on the natural and probable consequences doctrine in relation to the assault by a life prisoner charge, as the defendant could be guilty if “a reasonable person in the defendant’s position would have known that the commission of the assault by a life prisoner was a natural and probable consequence of the commission of the assault by a prisoner.”

May 9, 2025 – People v. Cabrera (2nd Dist., Div. 5, B339998)

The Court of Appeal reverses the denial of appellant’s PC 1170(d) resentencing petition, finding that a sentence of 50 years to life is the functional equivalent of LWOP and that his eligibility for a youthful offender parole hearing under PC 3051 did not preclude him from resentencing under 1170(d).

May 6, 2025 – People v. Temple (4th Dist., Div. 3, G062781)

Any error regarding CALCRIM No. 571 (imperfect self-defense) and CALCRIM No. 3428 (consideration of mental disorder) was harmless due to the significant evidence of excessive force, which can undermine a claim of imperfect self-defense. The trial court denied appellant’s request to modify CALCRIM No. 571 and CALCRIM No. 3428 to tell the jury it could consider his mental disorders in determining whether he acted in imperfect self-defense; that is whether his mental disorders negated malice. The trial court did not err by instructing the jury with CALCRIM No. 225 (circumstantial evidence of intent or mental state) instead of CALCRIM No. 224 (sufficiency of circumstantial evidence generally) because CALCRIM No. 225 is appropriate when the only element of the crime proven primarily through circumstantial evidence is the defendant’s intent or mental state. The court also did not err by denying the defense motion to continue trial because there was no indication that the missing witness could be located within a reasonable time.

May 5, 2025 – People v. Anderson (1st Dist., Div. 5, A169966)

The Court of Appeal affirms the trial court’s order that appellant pay  $179,231.65 in restitution to the California State Lottery for the amount the Lottery credited to the merchants for the stolen tickets and for associated prize money paid to appellant by redeeming the winning stolen tickets.  The Court rejects appellant’s argument that restitution for the stolen tickets should be the net value of those tickets—that is, the retail value of the stolen tickets, $116,243, minus the cash prizes associated with those tickets, $62,365, because the Lottery remained liable for the prizes associated with the new tickets credited to the retailers.

May 5, 2025 – People v. Oyler (S173784)

Automatic appeal from a death penalty verdict. To the extent felony-murder instructions given at a trial pre-dating SB 1437 no longer correctly state the law, the error is subject to Chapman analysis and here harmless where defendant was the actual killer under any definition of causation. Court expressly declines to opine on correctness of several lower court opinions finding respective defendants not “actual killer.” Substantial evidence supported murder convictions, special circumstance findings and arson convictions for other, non-fatal fires where overwhelming evidence tied defendant to certain fires and expert testimony on uniqueness of incendiary devices established one arsonist started all fires. The Court finds claims involving error in admission of evidence, judicial substitution, and pretrial change of venue motion forfeited.

May 5, 2025 – People v. Hickman (1st Dist., Div. 1, A169744)

Defendant who pleaded guilty to voluntary manslaughter after January 1, 2019, the effective date of SB 1437, is ineligible for PC 1172.6 relief. The court follows prior decisions (see e.g. People v. Lezama (2024) 101 Cal.App.5th 583) in holding that a plea postdating SB 1437 creates absolute bar to defendant successfully establishing he cannot “presently be convicted of murder.” (PC 1172.6(a)(3).)

May 2, 2025 – People v. Lopez-Barraza (1st Dist., Div. 2, A168604)

The Court of Appeal reverses a PC 1172.6 denial where the trial court deemed the defendant a major participant with reckless indifference based partly on factual findings inconsistent with jury’s prior acquittal. Defendant in robbery-murder was acquitted of conspiracy to commit robbery, but the trial court nonetheless determined his participation in robbery planning showed he was guilty of murder under current law. Because no new evidence was introduced at the evidentiary hearing, the trial court’s finding necessarily and improperly conflicted with prior acquittal and was also prejudicial under Watson.

May 1, 2025 – People v. Williams (4th Dist., Div. 2, E081147)

The Court of Appeal finds sufficient evidence of force and fear to sustain the robbery conviction and sufficient evidence that that co-defendant aided and abetted the robbery (PC 211).  The Court sustains the co-defendant’s felony-murder conviction (PC 187) finding there was sufficient evidence that the co-defendant, who was not the actual killer, acted with reckless indifference to human life. The Court finds any presumed instructional error on elder abuse (PC 368) harmless and strikes the parole revocation fine (PC 1202.45) because the defendants were sentenced to life without the possibility of parole.

May 1, 2025 – People v. Whipple (4th Dist., Div. 2, E083362)

The trial court did not err when it denied the PC 1172.6 petition at the prima facie stage. Whipple was convicted of first-degree felony-murder after SB 1437 took effect. She did not argue on direct appeal that the jury was improperly instructed on the reckless indifference factors under People v. Banks (2015) 61 Cal.4th 788 and People v. Clark (2016) 63 Cal.4th 522. Her conviction is final and the jury’s true findings on reckless indifference are conclusively valid under the doctrine of issue preclusion

Apr. 30, 2025 – B.D. v. Sup. Ct (1st Dist., Div. 3, A172485)

Mother sought extraordinary relief from the order at the six-month review hearing terminating family reunification services and setting a WIC 366.26 hearing. The appellate court agreed with the juvenile court that mother was provided with reasonable services. However, the appellate court clarified that the substantive progress test under WIC 366.21(e)(3) is a qualitative assessment of whether a parent has demonstrated meaningful engagement and improvement in the various education, therapeutic, and assistive components of the case plan. The juvenile court’s findings regarding mother’s progress was not supported by substantial evidence meeting the clear and convincing threshold. However, the error was found to be harmless under the circumstances. The court emphasized the importance of applying the correct standards in each phase of the dependency proceedings to maintain the escalating nature of the statutory process and the balance of interests inherent in it.

April 28, 2025 – People v. Benson (2nd Dist., Div. 8, B334490)

In a murder case with no gang charges, the trial court did not abuse its discretion by admitting gang evidence, as it was relevant to issues of identity, witness credibility, and motive. Trial court also did not abuse its discretion by permitting a one-week continuance of the trial due to the out-of-state death of a member of the prosecutor’s family, and defendant forfeited procedural objections to the continuance when he did not object. The absence of findings on the record does not support an inference that the trial court granted the prosecutor’s request without inquiring into alternative solutions. Defendant also forfeited claims that the prosecutor’s closing arguments included improper analogies. Finally, where defense counsel described a conversation wherein the juror told the trial court that he believed he recognized defendant, but he could not say how, the record was not adequate to determine whether there was good cause that the juror was unable to perform his duty (PC 1089).

April 24, 2025 – People v. Luu (4th Dist., Div. 3, G063066)

The Court of Appeal holds that a defendant is eligible for relief under PC 1172.6 when that person was charged with attempted murder under the natural and probable consequences doctrine but was convicted of the lesser included offense of attempted manslaughter.

April 24, 2025 – People v. Antonelli (S281599)

Defendants convicted of provocative act murder before the 2009 Concha decision are not categorically barred from seeking PC 1172.6 relief. Defendant was convicted of first-degree murder in 1991 under the provocative act doctrine based on his role in a home invasion robbery during which one of his accomplices was killed by a victim. It was not until 2009 that People v. Concha (2009) 47 Cal.4th 653 clearly articulated that a defendant had to personally harbor malice to be convicted of provocative act murder. Pre-Concha, CSC decisions allowed provocative act murder convictions where malice could be imputed to a nonprovocateur accomplice solely based on his or her participation in a crime.

The Court of Appeal also erred by concluding that the jury instructions given at defendant’s trial were irrelevant to the PC 1172.6 prima facie determination. Jury instructions are critical to the prima facie inquiry because they track the governing law at the time of defendants’ trials. At defendant’s trial, the jury was instructed with CALJIC 8.12 that they could convict defendant provocative act murder if during the commission of the underlying felony, a person committing the crime also committed a provocative act.  

April 23, 2025 – People v. Roy (3rd Dist., C100925)

Appeal from denial of defendant-initiated PC 1172.1 resentencing request dismissed as non-appealable order. Opinion follows People v. Hodge (2024) 107 Cal.App.5th 985 in concluding trial court’s refusal to recall sentence on its own motion, in response to defendant’s invitation for it to do so, did not affect defendant’s substantial rights under PC 1237(b).

April 22, 2025 – People v. Glass (4th Dist., Div. 1, D084008)

The Court of Appeal conditionally affirms the order denying appellant’s 1172.6 resentencing petition. The court finds that appellant’s sworn statements in the plea form and at the plea hearing establish that he could presently be convicted of homicide and attempted homicide, thereby rendering him ineligible for relief under PC 1172.6. However, in light of People v. Patton (2025) 17 Cal.5th 549, the court remanded the matter to allow appellant, within 30 days of the remand, to supplement the petition with additional facts that “alert the prosecution and the court to what issues an evidentiary hearing would entail.”

April 17, 2025 – People v. Henderson (2nd. Dist., Div. 7, B330707)

The Court of Appeal holds that the trial court’s application of PC 1385.1 at appellant’s resentencing hearing under PC 1172.6, did not violate the constitutional prohibitions against ex post facto laws. Although PC 1385.1, which provides that a court may not strike a special circumstance finding on a first degree murder conviction, was enacted after appellant was convicted of special circumstance murder, appellant’s new sentence was no more severe than the punishment assigned by law when the act to be punished occurred, and was not greater than his original sentence.  Thus no ex post facto violation occurred.

April 14, 2025 – People v. Morrison (6th Dist., H050677)

The Court of Appeal remands the case to the trial court for appellant to present an equal protection claim based on the Sexually Violent Predator Act’s (SVPA) failure to require a personal jury trial advisement when the right to a personal jury trial advisement and waiver is included in two other civil commitment schemes in California: those for violent offenders with mental health disorders (OMHD) and persons found not guilty by reason of insanity (NGI). The Court holds that appellant will bear the burden of showing there was no rational basis for the unequal treatment.

April 11, 2025 – Cain v. Superior Court (Dist. 1, Div. 4, A170052)

The prosecution moved to recuse the public defender’s office from representing Cain on charges stemming from a 1987 murder of a child, alleging conflict of interest. The public defender had previously represented Melton, now deceased, who was tried twice for the same 1987 murder, resulting in two mistrials and the eventual dismissal of the case. The superior court abused its discretion in granting the prosecution’s recusal motion because no conflict of interest exists. Melton’s former public defender is now a retired judge, and his duty of confidentiality survived Melton’s death. The public defender did not have any physical files from the prior representation of Melton, no attorneys who worked for the public defender when it represented Melton still work for the office, and there was no evidence that Cain’s assigned public defender will pull his punches.

April 9, 2025 – In re L.H. (1st Dist., Div. 1, A168582)

Youth was committed to a secure youth treatment facility (SYTF) after he pled no contest to first-degree murder. The juvenile court did not err when it set the youth’s maximum confinement term of 25 years under WIC 875(c). It also did not err or violate equal protection by applying youth’s precommitment credits to the maximum confinement term.

April 8, 2025 – People v. Hinojos (2nd Dist., Div. 7, B325167)

The Court of Appeal holds that a trial court’s decisions to sustain a CCP 231.7 objection is reviewed de novo, deferring to the trial court’s factual findings if supported by substantial evidence. The Court concludes that the trial court did not err in sustaining the prosecution’s objection to the defense’s use of a peremptory challenge where the sole reason for seeking to remove the juror was the defense’s failure to ask about his views on gangs and where defense’s notes indicated this was an otherwise good juror. The Court also holds that the trial court did not err in admitting gang evidence and gang expert testimony.

April 8, 2025 – People v. Munoz (2nd Dist., Div. 7, B336656)

The Court of Appeal holds that appellant’s sentence of 50 years to life, imposed for a crime committed when he was 15 years old, is not the functional equivalent of life without the possibility of parole. Thus, the superior court did not err in denying appellant’s petition under PC 1170(d)(1) which authorizes defendants sentenced to life without the possibility of parole, who were under 18 years old when they committed their crimes, to petition for resentencing.

April 7, 2025 – People v. Rodriguez (2nd Dist., Div. 3, B332704)

At PC 1172.6 evidentiary hearing, trial court properly admitted defendant’s admissions to being actual killer made in both letter to the parole board and to parole risk assessment interviewer. Court of Appeal concurs with multiple precedents (see e.g. People v. Zavala (2024) 105 Cal.App.5th 366) in rejecting use immunity argument as well as claim inmate statements during parole proceedings are compelled and therefore involuntary.

April 7, 2025 – People v. Virgen (2nd Dist., Div. 8, B333314)

Second degree murder conviction reversed. Court instructed jury with inapplicable natural and probable consequences language in CALCRIMs 400 [aiding and abetting] and 416 [uncharged conspiracy]. Taken together, instructions improperly permitted conviction on theory defendant conspired to commit the assault which preceded the homicide, without requiring a malice finding. Although jury was also instructed on valid direct aiding and abetting theory, which was the sole theory argued by the prosecution, error not harmless beyond a reasonable doubt.

April 7, 2025 – People v. Gomez (6th Dist., H051210)

Penal Code section 29800, subdivision (a)(1), prohibiting felons from possessing firearms, requires the prosecution to prove the flare gun found in defendant’s possession was “designed to be used as a weapon.” It was insufficient to show the flare gun had an intact frame or receiver, or that it was designed to expel a projectile through the barrel using some form of combustion. Because the record in this case contained insufficient evidence that the flare gun was designed to be used as a weapon, the conviction was vacated. In addition, the statutes prohibiting felons’ possession of firearms and ammunition (§§ 29800(a)(1) & 30305 (a)(1)) do not violate the Second Amendment because historically, individuals may be disarmed as a sanction for criminal conduct, whether or not involving physical violence.

April 7, 2025 – Cert. Grant – Villarreal v. Texas (24-557)

Issue: Whether a trial court abridges a defendant’s Sixth Amendment right to counsel by prohibiting the defendant and his counsel from discussing the defendant’s testimony during an overnight recess.

April 7, 2025 – Cert. Grant – Ellingburg v. United States (24-482)

The United States Supreme Court granted petition for writ of certiorari on the following issue: Whether criminal restitution under the Mandatory Victim Restitution Act is penal for purposes of the Constitution’s ex post facto clause, which  prohibits laws that retroactively increase the punishment for a crime or criminalize conduct that was legal when it occurred. The act extended the time period for which defendants were required to make restitution payment and added interest assessments.

April 4, 2025 – Lacour v. Superior Court (3rd Dist., C101343)

Trial court erred by denying mental health diversion (PC 1001.36) on ground that defendant’s qualifying mental disorder did not contribute to commission of charged offenses. Statute presumes disorder contributed to offense absent clear and convincing evidence to the contrary. Here, trial court relied on absence of evidence in police report that defendant was then suffering from mental disorder, improperly shifting the causation burden to the defense.

April 3, 2025 – People v. McGhee (S169750)

The trial court abused its discretion by discharging a juror during deliberations where the record showed that the juror was engaged with the evidence and was not refusing to deliberate or unable to deliberate.

Mar. 28, 2025 – People v. K.D. (1st Dist., Div. 4, A168538)

The Court of Appeal holds that the trial court abused its discretion when it denied appellant’s request for developmental disability division under PC 1001.20. The court reasons that the trial court erred by (1) concluding that there was no relationship between defendant’s disability and the charged offenses when the evidence supports the contrary; (2) mentioning the facts of the charged offenses multiple times without relating them to the question of whether appellant would benefit from diversion, and (3) relying on appellant’s unemployment and lack of assets to deny diversion. The court also found that the trial court did not satisfy its duties under PC 1001.20 because it failed to initiate the diversion process sua sponte and to ensure that the relevant agencies provided reports. The court found these errors were not harmless and conditionally reversed the judgment.

Mar. 28, 2025 – People v. Jackson (1st Dist., Div. 2, A164679)

The trial court prejudicially erred when it denied PC 1172.6 petitions on three 1991 murder convictions. On two murders, the court erroneously denied the petition at the prima facie stage relying on the jury’s felony-murder special-circumstance true findings. PC 189(e)(2) now requires the defendant not only aid and abet the underlying felonies with intent to kill but that he aid and abet the killing itself. On the third murder, the court erroneously failed to hold an evidentiary hearing after issuing an order to show cause.

Mar. 28, 2025 – McIntosh v. Superior Court of San Diego County (4th Dist., Div. 1, D084379)

The trial court erroneously denied defendant’s request for appointed counsel in his habeas corpus petition raising RJA claims based on the ground that he did not meet the prima facie showing required for an order to show cause. PC 1473(e) imposes a duty on the trial court to assess a request for counsel independently of the court’s duty to assess whether to issue an OSC. To remedy the error, the Court of Appeal construed defendant’s petition as a petition for writ of mandate and issued a writ of mandate directing the trial court to conduct the required PC 1473(e) inquiry.

March 26, 2025 – People v. Griggs (3rd Dist., C101953)

Prosecution appeal dismissed after trial court recalled defendant’s sentence on its own motion and set case for resentencing hearing (PC 1172.1(a)(1)). As no law applicable to defendant’s sentence would “necessarily” result in reduction at resentencing, the recall order did not affect the prosecution’s substantial rights (PC 1238(a)(5)) and was therefore not appealable.

March 25, 2025 – In re J.D. (2nd Dist., Div. 6, B338111)

The separate prosecution of two offenses—petty theft and felony assault— committed hours apart in the same mall, did not violate the Kellett rule. Appellant approached a minor in a mall, took her phone, and walked away. A few hours later, in the same mall, appellant and three others assaulted another minor and took her phone. After appellant was charged and sentenced for petty theft based on the first incident, assault charges were filed based on the second incident. The court held that petty theft is not similar to felonious assault, even if both offenses were committed to obtain cell phones. Further, the prosecutions required separate evidence, and any overlapping evidence was trivial. Finally, the Kellett rule does not require that offenses committed at different times and places be prosecuted in a single proceeding

Mar. 24, 2025 – People v. Cabada (2nd Dist., Div. 6, B315418)

In imposing the upper term, the trial court relied on the following aggravating factors: (1) appellant’s prior record is significant with numerous prior convictions, (2) appellant’s prior record indicates conduct of a similar nature, and (3) appellant’s performance on parole has not been good. In view of People v. Lynch (2024) 16 Cal.5th 730 and Erlinger v. United States (2024) 602 U.S. 821, the Court of Appeal accepted the People’s concession that the trial court erred by relying on these factors to impose the upper term. However, the court held that the error was harmless, concluding beyond a reasonable doubt that a jury would have found beyond a reasonable doubt all of the aggravating factors upon which the trial court relied.

March 24, 2025 – In re H.M. (5th Dist., F088486)

In an appeal from the termination of parental rights, mother argued noncompliance with the Indian Child Welfare Act. The appellate court found no error regarding the duty of further inquiry and affirmed. The department was not obligated to contact the Cherokee Nation after it had already provided the tribe with the requested information nor was it obligated to contact the BIA because it did not need assistance identifying name or contact informaton for the tribes.

March 21, 2025 – People v. Nguyen (4th Dist., Div. 3, G062427)

The Court of Appeal remands for resentencing so that appellant may invite the trial court to dismiss the special circumstance enhancements on his two murder convictions under section PC 1385. The Court finds that the trial court, upon resentencing appellant under section 1172.6 on his attempted murder charges, was not aware that because the murders charged occurred before June 6. 1990, the court had discretion to strike the special circumstance enhancements and impose life sentences with the possibility of parole. Since June 6, 1990, the rule has been that a court cannot strike a special circumstance enhancement under PC 1385.1.

March 20, 2025 – In re Summers (2nd Dist., Div. 3, B327617)

The Court of Appeal denies defendant’s petition for writ of habeas corpus seeking to overturn his convictions for attempted murder because they did not comply with the limitations on a concurrent intent or “kill zone” theory of liability imposed by People v. Canizales (2019) 7 Cal.5th 591. The Court rejects the claims of insufficient evidence to support the kill zone instruction and insufficient evidence to sustain the convictions. The Court further holds that the pre-Canizales version of version of the kill zone instruction, CALCRIM No. 600, included the elements required by Canizales.

March 20, 2025 – People v. Rushing (2nd Dist., Div. 3, B334988)

The Court of Appeal affirmed the denial of appellant’s PC 1172.6 resentencing petition, finding that, although the trial court read the optional bracketed language in CALCRIM No. 400, which introduced the theory of liability for a crime that was committed while a person was aiding and abetting another crime, the trial court never instructed the jury on the natural and probable consequences doctrine.

Mar. 19, 2025 – In re L.W. (1st Dist., Div. 5., A170656)

In an appeal from jurisdiction and disposition, mother argued that substantial evidence did not support the juvenile court’s findings under WIC 300, (b)(1) and (g).  The Court of Appeal agreed, reversed the jurisdictional order, and the disposition order was vacated as moot. Under (g), the juvenile court committed legal error when it focused on facts at the time of the initial detention rather than at the time of the hearing. As to (b)(1), substantial evidence did not support a conclusion that mother was suffering from untreated mental illness or drug addiction. The fact that a parent has a mental illness, without more, is insufficient to support jurisdiction. At the time of the hearing, mother was treating her mental illness with medication, psychiatric care, and therapy and there was no evidence of risk of harm.

March 17, 2025 – People v. Batten (1st Dist., Div. 4, A169597)

The Court of Appeal holds that the disparity in treatment of those released on parole prior to July 2020 and those released after July 2020 does not violate equal protection under the rational basis test. Defendant was released on lifetime parole in 2017 after serving a term for murder. In 2023, defendant was found in violation of parole and was remanded to the custody of CDCR under PC 3000.08.  Under PC 3000.01, enacted in 2020, those convicted of murder but released on parole after July 2020 would have been placed on parole for only three years and would have been eligible for punishments other than mandatory remand to the CDCR.

March 18, 2025 – People v. Tang (4th Dist., Div. 1, D084192)

The trial court did not err when it concluded that defendant was ineligible for PC 1172.75 resentencing because the prison prior enhancement had been stricken, rather than imposed and stayed. A stricken enhancement is not an imposed enhancement within the meaning of section 1172.75, subdivision (a) because it cannot result in a lesser sentence.

Mar. 18, 2025 – People v. Wood (4th Dist., Div. 3, G061948)

Appellant was accused of engaging in a kickback scheme. However, instead of being charged with misdemeanor violations of Labor Code section 139.32, which specifically criminalizes kickbacks, appellant was charged and convicted of felony violations of PC 550(b)(3), which criminalizes concealing or withholding information from an insurance company that would affect an entitlement to an insurance benefit. Applying the Williamson rule (In re Williamson (1954) 43 Cal.2d 651), which generally prohibits charging conduct the legislature has defined as a specific crime with a lesser punishment as a more general crime with a harsher punishment, the Court of Appeal reverses all 32 counts of PC 550(b)(3). As a result, the court also reverses a white-collar sentencing enhancement and restitution award based on these charges.

March 17, 2025 – People v. Padron (2nd Dist., Div. 7, B331764)

Carjacking guilty plea ordered vacated based on failure to understand immigration consequences (PC 1473.7(a)(1)). Defendant sufficiently established his ignorance conviction would lead to certain loss of asylum status and removal from country, in part based on trial counsel notes stating defendant advised of “potential” immigration consequences only. Lack of declaration from trial counsel and prosecutor’s advisement that conviction “will” result in deportation did not negate this showing. Prejudice established despite prosecutor also advising it would not offer immigration-safe plea, as inability to secure more favorable plea not dispositive as to whether properly advised defendant would have still chosen to plead guilty.

March 17, 2025 – People v. Tafoya (4th Dist., Div. 2, E079488 & E081708)

Appellant was convicted of stalking (PC 646.9(b)), perjury (PC 118a), attempted child abduction (PC 278), and filing false documents (PC 115(a)). The Court of Appeal holds that substantial evidence supports appellant’s conviction for stalking, and that his Facebook posts, in which he, among other things, expressed his intention to pick the victim’s children up from school, were not protected by the First Amendment because the posts were a part of a course of conduct that constituted a credible threat within the meaning of PC 646.9(g). The court then affirmed appellant’s conviction for attempted child abduction, finding that a fraudulently obtained visitation order could not legitimize appellant’s conduct. The court further held that obtaining the fraudulent visitation order and asserting parentage of the victim’s children in court constituted overt acts in furtherance of child abduction. The court also holds that appellant’s perjury conviction based on false statements he made to obtain a restraining order against the victim was not supported by substantial evidence because no statement was executed under penalty of perjury; however, substantial evidence did support appellant’s conviction for procuring or offering false forged instrument based on his request for default judgment in an underlying family law proceeding. Finally, the court holds that the trial court did not abuse its discretion in ordering appellant to pay restitution to compensate the victim for her moving expenses.

March 14, 2025 – People v. Shaginyan (2nd Dist., App. Div., JAD25-02)

The trial court erred when it failed to conduct a misdemeanor diversion termination hearing under PC 1001.95. Defendant was placed on diversion after being charged with cannabis-related crimes based on his employment at an unlicensed cannabis store. The prosecution made a sufficient showing requiring an evidentiary hearing to terminate diversion by submitting a police report that showed defendant working at an unlicensed cannabis store.

March 14, 2025 – People v. Hyatt (4th Dist., Div. 3, G063126)

The Court of Appeal affirms the trial court’s order dismissing appellant’s felony complaint pursuant to PC 1381 on the ground the District Attorney failed to bring appellant to trial within 90 days after being served with the 1381 demand. The Court rejects the District Attorney’s position that the 1381 demand was premature because defendant was not yet physically present in state prison at the time the section 1381 demand was served. The Court holds that the service of a 1381 demand is timely as soon as a defendant begins serving their prison sentence in county jail while awaiting transfer to state prison.

March 13, 2025 – People v. Faustinos (4th Dist., Div. 2, E082951)

Under PC 1172.1 (AB 600), a defendant is not entitled to seek relief, a trial court need not respond to defendant’s request, and the trial court’s order declining to act on the petition is not an appealable order.  This court expressly disagrees with People v. Chatman (2025) 108 Cal.App.5th 650, holding that a court’s phrasing of an order cannot convert a non-appealable order into an appealable one, even where the court wrongly declares that it lacks jurisdiction to act on its own motion under section 1172.1. The remedy for this is to petition for a writ of habeas corpus.  Note: On March 3, 2025, the Court of Appeal granted the Attorney General’s request for rehearing in People v. Chatman.

March 12, 2025 – People v. Gray (3rd Dist., C099048)

The Court of Appeal holds that entering into a locked, exterior space or compartment of a vehicle falls within the meaning of “entering the vehicle” for purposes of PC 459.

March 10, 2025 – People v. Olmos (2nd Dist., Div. 5, B333138)

The Court of Appeal assumed for the purposes of this appeal that juvenile offenders who are sentenced to the functional equivalent of LWOP are entitled to relief under PC 1170(d)(1)(A). Nevertheless, the court held that appellant’s 33-years-to-life sentence is the not functional equivalent of LWOP.

March 10, 2025 – People v. Terwilligar (1st Dist., Div. 5, A170304)

Published portion of opinion follows other Courts of Appeal (see e.g. People v. Superior Court (Williams) 102 Cal.App.5th 1242, rev. granted Aug. 28, 2024, S286128) in holding revised penalty provisions of Three Strikes Reform Act (PC 1170.12) do not apply at PC 1172.75 resentencing. As a result, defendant’s indeterminate third strike sentence for non-serious, non-violent conviction not eligible for second strike sentence, as it would be if defendant were newly sentenced today. Opinion follows Williams concurrence/dissent in finding this result intended by legislature when it enacted PC 1172.75.

March 10, 2025 – People v. Serna (4th Dist., Div. 2, E082722)

Defendant was convicted of misdemeanor willfully resisting, delaying, or obstructing a peace officer (PC § 148, subd. (a)(1)). Court of Appeal held that PC 148(a)(1) does not require actual knowledge that the person being resisted is an executive officer. It requires that defendant knew or reasonably should have known the person they resisted was a police officer. Court adopted the reasoning of People v. Mackreth (2020) 58 Cal.App.5th 317 and disagreed with In re A.L. (2019) 38 Cal.App.5th 15.

Mar. 7, 2025 – In re M.V. (2nd Dist., Div. 8, B338420)

Mother and father appealed the juvenile court’s order terminating parental rights. The appellate court affirmed the order finding the beneficial relationship exception had not been met. The court found it was not an abuse of discretion for the juvenile court to reject the opinions of the bonding study expert. The court disagreed with mother’s assertions that she was deprived of due process or that the juvenile court acted with bias.

March 7, 2025 – People v. Copeland (4th Dist., Div. 1, D083131)

Penal Code section 136, subdivision (2) (dissuading a witness) does not include potential future witnesses to a civil dispute, and the definition of “witness” in CALCRIM No. 2622 is inconsistent with this interpretation. Based on principles of statutory interpretation, the court found that the definition of “witness” in section 136, subdivision (2) is limited in a civil context to those individuals that a reasonable person would believe have been subpoenaed or have given a declaration under oath. The court declined to expand the definition of “witness” to a potential witness in civil litigation that has not yet been filed.

Mar. 6, 2025 – In re J.F. (2nd Dist., Div. 5, B332110)

In an appeal from WIC 366.26 orders appointing a legal guardian and terminating jurisdiction, father sought conditional reversal of the guardianship and remand to ensure compliance with initial inquiry requirements of ICWA. The Department conceded ICWA error. The Court of Appeal conditionally affirmed the order appointing a guardian but reversed the termination of jurisdiction due to insufficient ICWA inquiry.  Father’s parental rights were not terminated and the guardianship remains within the juvenile court’s jurisdiction even after the termination of dependency jurisdiction. Justice Baker filed a dissent noting that the ICWA inquiry was likely adequate despite the Agency’s concession that it was not.

March 3, 2025 – People v. Patton (S279670)

The trial court may rely on the prosecution’s unchallenged citations to the preliminary hearing transcript to determine whether a prima facie case has been established under PC 1172.6 section 1172.6. Petitioner filed a form petition for relief under section 1172.6, providing nothing but checkmarks in the appropriate boxes to demonstrate a prima facie showing.  The prosecutor responded with citations to the preliminary hearing transcripts to show petitioner was the sole perpetrator and thus was ineligible for relief.  The petitioner did not submit anything further.  Once the prosecution has submitted the opposition citing to the record, it was proper for the trial court to rely on unchallenged contents of the preliminary examination transcript to determine the petitioner’s eligibility. A petitioner who offers only conclusory allegations of entitlement to relief, in response to a record of conviction that demonstrates the petitioner’s conviction was under a still-valid theory, has not made a prima facie showing.

Feb. 28, 2025 – People v. Hill (1st. Dist., Div. 2, A168750)

No error in denial of 1172.6 relief for two attempted murder convictions where the record established the convictions were obtained under a still-valid theory of direct aiding and abetting. The jury’s verdict for aiding and abetting attempted murder required a finding of express malice, and the defendant was ineligible for relief as a matter of law on that count. On the other count, defendant was originally found guilty by the jury of first degree murder as a direct aider and abettor, and pleaded down to attempted murder after direct appeal. A defendant convicted by plea cannot show eligibility for relief by asserting the People could have prosecuted him on invalid theories when the record conclusively establishes that at the time of the plea, the People were operating under only one theory of the defendant’s guilt, and that theory is still valid under current law.

Feb. 28, 2025 – Jackson v. Sup. Court (4th. Dist., Div. 1, D084751)

The trial court erred in denying an RJA petition at the prima facie stage where petitioner produced facts that, if true, establish there is a substantial likelihood that an RJA violation occurred (745(h)(2)). The Court of Appeal found that Jackson presented sufficient evidence to establish a substantial likelihood under the RJA that implicit racial bias influenced the traffic stop. Statistical evidence showed Black drivers in San Diego were disproportionately stopped and searched. Additionally, Jackson and his brother had been repeatedly stopped by police for window tint violations without citations. Finally, the arresting officer testified that he was unaware that Black men might have reason to be nervous when interacting with police officers, which “further raises the potential that implicit bias played a role in his decision to stop and search the car.” This was sufficient to at least warrant an evidentiary hearing under PC 745(c).

Feb. 27, 2025 – In re J.B. (4th Dist., Div. 2, E084220)

De facto parents appealed the juvenile court’s order granting the parents’ WIC 388 petitions. The Court of Appeal dismissed the appeal finding that a de facto parent has no standing to appeal the grant of the section 388 petitions. De facto parents have limited rights, which do not include custody or visitation. The court agreed with In re P.L. (2005) 134 Cal.App.4th 1357 [de facto parent has no standing to appeal a custody decision because they cannot show how their legal rights were injuriously affected] and disagreed with In re Vincent M. (2008) 161 Cal.App.4th 943 [de facto parent’s rights were injuriously affected under circumstances of the case].

Feb. 27, 2025 – People v. Rushing (2nd Dist., Div. 3, B334988)

The Court of Appeal affirmed the denial of appellant’s PC 1172.6 resentencing petition, finding that, although the trial court read the optional bracketed language in CALCRIM No. 400, which introduced the theory of liability for a crime that was committed while a person was aiding and abetting another crime, the trial court never instructed the jury on the natural and probable consequences doctrine.

Feb. 27, 2025 – People v. Planchard (3rd Dist., C099609)

Defendant publicly posted messages on Facebook containing harassing and threatening statements about Doe. The posts included references to Doe having been raped, with the name of the alleged rapist and his photo next to Doe’s photo, and comments approving the sexual violence inflicted on Doe. The posts established the requisite harassing and threatening conduct directed at Doe under the stalking statute (PC 646.9). While defendant did not directly send the posts to Doe, she learned of the posts and threats and suffered the requisite fear. The Court of Appeal affirmed the stalking conviction.

Feb. 26, 2025 – OSC Issued – In re Lashon (S282242)

The California Supreme Court issued an order to show cause:  (1) whether there is an exception to habeas forfeiture bars for a claim under the Racial Justice Act of 2020 (Racial Justice Act) based on the conduct of the trial court judge; (2) if there is such an exception to habeas forfeiture bars, why petitioner is not entitled to relief under the Racial Justice Act; or (3) if there is no such exception to habeas forfeiture bars, why trial counsel was not ineffective for failing to file a motion under the Racial Justice Act at trial or after sentencing.

Feb. 26, 2025 – Review Grant – People v. Robinson (S288606)

Review granted on the following question: Is a transcript of grand jury proceedings admissible at a Penal Code section 1172.6 evidentiary hearing?

Feb. 24, 2025 – In re Tuilaepa (2nd Dist., Div. 7, B310753)

Order to show cause issued in capital habeas proceeding. In non-capital holdings: (1) trial court erred at prima facie habeas stage by “weighing” facts in defense experts’ declarations against rest of record and also “assessing the credibility” of the declarations; (2) trial court’s legal errors did not suggest judicial bias requiring CCP 170.1 disqualification on remand.

Feb. 19, 2025 – People v. Sarmiento-Zuniga (1st. Dist., Div. 5, A167817)

The Court of Appeal holds that PC 1170(b) does not impose evidentiary or proof requirements or restrictions on the imposition of the middle term.  In imposing the middle term, all that is required is for the court to apply the Judicial Council’s sentencing rules and state the facts and reasons for imposing the middle term on the record at the time of sentencing.   PC 1170 requires that an aggravating factor be admitted or proven to a jury only when that factor is relied upon by a judge in sentencing to an upper term.

Feb. 19, 2025 – R.D. V. Superior Court (3rd Dist., C100422)

R.D. filed an RJA motion to dismiss the pending petition based on a visiting judge’s comments in court. One week later, the regularly assigned judge found that the visiting judge’s comments violated PC 745(a)(2), but concluded dismissal was not a remedy under PC 745(e). The judge declined to reduce the charge or impose any other statutory remedy in the interest of justice. After the Court of Appeal denied R.D.’s petition for writ of mandate, the California Supreme Court granted R.D.’s petition for review and directed the court to vacate its summary denial and issue an order to show cause. On remand, the majority concluded that although the RJA does not preclude dismissal of charges based on another law to remedy an RJA violation (PC 745(e)(4)), it does not authorize dismissal of one or more charges as a remedy for a prejudgment RJA violation (PC 745(e)(1)). PC 745(e)(1) instead confers discretion on the juvenile court to either impose or not impose a remedy, and the court did not err when it declined to dismiss the charge solely under the RJA or reduce the charge or impose another remedy. Justice Mesiwala dissented, stating: (1) the plain language of the RJA requires the court to impose a remedy specific to an RJA violation; (2) dismissal is an available remedy under the RJA and was requested by R.D.; (3) R.D. was not given the opportunity to factually develop why dismissal was required to remedy the harm; and (4) remand is required to make the factual record.

Feb. 19, 2025 – People v. Richardson (2nd Dist., Div. 8, B335039)

California’s felon in possession of firearm and ammunition statutes (PC 29800(a)(1) and 30305(a)(1)) are constitutional on their face under the Second Amendment. Under the reasoning of People v. Alexander (2023) 91 Cal.App.5th 469, 478-479, People v. Odell (2023) 92 Cal.App.5th 307, 316-317, and similar cases interpreting New York State Rifle & Pistol Association, Inc. v. Bruen (2022) 597 U.S. 1, 31-32, convicted felons are not law-abiding citizens and have no right to possess firearms under the text of the Second Amendment. PC 29800(a)(1) and 30305(a)(1) are also facially valid because they are consistent with our national tradition of firearm regulation.

Feb. 18, 2025 – Bemore v. Superior Court (4th Dist., Div. 1, D084579)

In 2015, the Ninth Circuit reversed Bemore’s death sentence on habeas for IAC. Bemore’s postconviction counsel later prepared an RJA habeas petition, and Bemore requested the appointment of those counsel as habeas counsel under PC 1473(e). Without notice or hearing, the trial court appointed the San Diego County Public Defender to represent Bemore under PC 987.2. The Court of Appeal granted Bemore’s petition for writ of mandate and directed the court to appoint one or both of Bemore’s requested attorneys. It held that PC 987.2 is the exclusive mechanism for the selection of appointed counsel on noncapital, postconviction RJA claims in the superior court. Under PC 987.2, the Public Defender was “unavailable” because it was disqualified from representing Bemore. It represented conflicting interests and breached its duty of loyalty by intervening in the mandate proceedings as a real party in interest and opposing Bemore’s petition while maintaining that he was a client. There was also “good cause” for appointment of prior habeas counsel based on their prior representation of Bemore.

Feb. 14, 2025 – Bunker v. Superior Court (4th Dist., Div. 2., E085394)

Writ of mandate granted after superior court denied request for bail review hearing “pending a change in circumstances.” PC 1270.2 states defendant “is entitled to an automatic review” of order setting bail and court erred by imposing changed circumstance requirement.

Feb. 14, 2025 – Lovelace v. Superior Court (1st Dist., Div. 4, A168924)

“Residual clause” of CRC rule 4.421(c), which permits finding circumstance in aggravation based on “[a]ny other factors . . . that reasonably relate to the defendant or to the circumstances under which the crime was committed” violates separation of powers under California Constitution, article III, section 3. While the legislature has properly granted the Judicial Council power to adopt rules concerning imposing an upper term (PC 1170.3(a)(2)), absence of “any meaningful standard” in applying residual clause creates unconstitutional legislative delegation.

Feb. 13, 2025 – People v. Lawson (2nd Dist., Div. 1, B332399)

Defendant failed to satisfy his burden to show that trial court’s statements and evidentiary rulings violated California’s Racial Justice Act (RJA). The Court of Appeal found that the court’s rulings were not motivated by racial bias or animus under RJA’s preponderance-of-the-evidence standard, but instead demonstrated ordinary evidentiary rulings based on legitimate assessments of relevance. Further, it found the trial court’s statement during sentencing that the defendant was a thief, fraudster, liar and coward does not meet the definition of racially discriminatory language for purposes of the RJA. Although the court declined to address forfeiture, it noted the importance of bringing a RJA claim in the trial court in the first instance.

Feb. 13, 2025 – People v. Lara (2nd Dist., Div. 8, B330473)

After trial court correctly redesignated two attempted murder convictions as, respectively, shooting at an inhabited dwelling (PC 246) and assault with a firearm (PC 245(a)(2)), it erred by convicting defendant of two additional assault with a firearm counts. PC 1172.6(e) states a court must redesignate the now-invalid convictions “as the target offense or underlying felony” when “murder or attempted murder was charged generically, and the target offense was not charged.” Here, post-prelim plea to the attempted murder counts did not include stipulation or admission to crimes against additional victims, and trial court lacked authority to “search out and impose” liability for crimes beyond those serving as target offenses for the attempted murder counts.

Feb. 11, 2025 – In re L.G. (2nd Dist., Div. 8, B331298)

The Court of Appeal reverses the trial court’s denial of appellant’s motion to suppress, finding that appellant’s nervousness, the stop occurring in a gang territory where there had been an unrelated arrest a month prior, and appellant being with a gang-involved youth did not create reasonable suspicion that appellant was committing a crime. The court further held that the interaction between appellant and the officers transformed from a consensual encounter into a detention once the officers ordered appellant and his companions to step into the street and put their hands up, and the officers “advanced in a coordinated and simultaneous approach.”

Fe. 11, 2025 – People v. Taylor (5th Dist., F087652)

The Court of Appeal reverses the order denying PC 1172.6 petition for resentencing because the trial court misconstrued the elements of provocative act murder. Petitioner was convicted of the murder of one of his accomplices who had been killed in a gun battle that ensued during the perpetration of a robbery. Following an evidentiary hearing, the trial court denied petitioner’s section 1172.6 petition, finding him guilty of provocative act murder under a felony-murder theory. This was error because the felony-murder rule is inapplicable where the killing was committed by a third party who was not involved in the perpetration of the underlying felony. Although the trial court declined to find whether petitioner himself was a provocateur, it expressly found that petitioner was at least a nonprovocateur accomplice. A nonprovocateur accomplice may be found guilty of murder if he possesses the requisite mens rea, but the trial court’s finding of reckless indifference is insufficient to support such finding.

Feb. 10, 2025 – People v. Superior Court (Valdez) (4th Dist., Div. 2, E084222)

Trial court erred in granting relief under PC 1170(d)(10) because petitioner’s current 50-year-to-life sentence is not the functional equivalent of LWOP as he was entitled to youth offender parole at the time of his resentencing. Valdez was originally sentenced to LWOP for a murder he committed at age 17. In 2018, he petitioned for resentencing under PC 1170(d)(1). The trial court granted the petition, and resentenced Valdez to 50 years to life. In 2024, Valdez filed another petition for resentencing, which the trial court construed as a petition under PC 1170(d)(10). It granted the petition, reasoning that Valdez’s 50-year-to-life sentence was the functional equivalent of LWOP, and that excluding him from resentencing relief would violate equal protection under the reasoning of Heard. The Court of Appeal held that Heard’s reasoning does not apply to a request for resentencing under section 1170(d)(10) if the defendant was eligible for youth offender parole under the sentence imposed at resentencing under section 1170(d)(1).

Feb. 7, 2025 – People v. Martinez (4th Dist., Div. 2, E082657)

The Court of Appeal holds the trial court erred in finding appellant’s speedy trial rights were violated. Appellant failed to show actual prejudice resulting from the delay, thus his state speedy trial rights were not violated. Appellant had no federal speedy right based on prefiling delay as to the felony count because an information had not yet been filed. The trial court erred in its federal speedy trial analysis as to the misdemeanors counts by dismissing those counts without balancing the requisite four factors – the reason for delay, the length of delay, defendant’s assertion of the right, and the prejudice resulting from the delay.

Feb. 7, 2025 – People v. Gonzalez (4th Dist., Div. 1, D082662)

In a habeas proceeding, the Court of Appeal remanded the case to the trial court to correct custody credits and denied defendant’s request to be personally present at the remand proceeding. After the trial court incorrectly adjusted the credits on remand, defendant appealed. The Court of Appeal held that defendant was not entitled to full resentencing on remand and was not entitled to be present when the court recalculated his credits.

Feb. 5, 2025 – People v. Rosemond (5th Dist., F087787)

The Court of Appeal holds that on an appeal from the denial of a PC 1172.1 petition, once appointed counsel has concluded there are no arguable issues, the procedures set forth in People v. Delgadillo (2022) 14 Cal.5^th 216, apply.  The Court finds that because a defendant does not have a constitutional right to counsel in a postconviction proceeding such as this, the procedure provided for in Wende does not apply.

Feb. 5, 2025 – Stubblefield v. Superior Court (6th Dist., H052893)

The superior court erred in concluding it lacked jurisdiction to entertain defendant’s bail motion after Court of Appeal reversed his conviction on RJA grounds (PC 745). Although the remittitur had yet to issue, CCP 916(a) permits limited superior court jurisdiction during an appeal, and PC 1272 specifically permits consideration of bail motions when a defendant has appealed.

Feb. 4, 2025 – People v. Chatman (5th Dist., F087868)

Disagreeing with the conclusion in People v. Hodge (2024) 107 Cal.App.5th 985, the Court of Appeal holds that a trial court’s order denying PC 1172.1 relief is an appealable order, constituting an order that affects an individual’s substantial rights under PC 1237.

Feb. 3, 2025 – People v. Hin (S141519)

Appellant was sentenced to death for first-degree murder with true findings on felony-murder and gang-murder special circumstances. He was also convicted of six counts of deliberate and premeditated attempted murder (five counts involved a separate drive-by shooting) and one count of active gang participation. The Court affirmed the first-degree murder conviction, finding alternative-theory instructional errors were harmless. It reversed the six attempted murder counts and the active gang participation count because the jury was permitted to rely on a now-abrogated theory under the natural and probable consequences doctrine. The Court also found insufficient evidence to support the gang enhancement allegations on the attempted murder counts, on the active gang participation count, and the gang-murder special circumstance under AB 333. Finally, the Court held that the admission of a rap song at guilt and penalty phases was an abuse of discretion under EC 352, but that the error was harmless under Watson. It declined to decide whether the new EC 352.2 (enacted by AB 2799) retroactively applied to nonfinal cases.

Feb. 3, 2025 – People v. Townes (4th Dist., Div. 3, G064319)

A jury found appellant guilty of, among other offenses, the forcible rape of his daughter, who was 14 years  of age or older (PC 261(a)(2)). The Court of Appeal held that duress can be purely psychological, and that the direct and implied threat of divine retribution if the child did not have sexual intercourse with appellant could support a finding of duress for forcible rape under PC 261 (a)(2) and (b)(1).

Feb. 3, 2025 – People v. Ellis (2nd Dist., Div. 8, B331474)

Kidnapping charge (PC 207) not supported by substantial evidence where defendant forcibly moved victim 10 feet from sidewalk to middle of street before fleeing when bystanders intervened. Both locations were in “full public view,” defendant had no greater ability to commit additional crimes while in street, and absence of passing traffic meant street presented no greater danger to victim. Conviction reduced to lesser-included false imprisonment by violence (PC 236/237).

Jan. 29, 2025 – People v. Hamilton (2nd Dist., Div. 3, B330995)

Tier 3 lifetime PC 290 registration based on federal child pornography conviction equivalent to PC 311.11 upheld against constitutional challenges. Legislature could rationally conclude violating federal statute was akin to felony, not misdemeanor, PC 311.11 violation, justifying Tier 3 registration. Attorney General’s decision to designate federal offense under Tier 3 did not violate procedural due process where defendant had opportunity to challenge designation. Finally, PC 290(d)(4)(A), which requires registration for out-of-jurisdiction offense “equivalent” to registrable California charge, not impermissibly vague where equivalence established by elements test (PC 290.005(a)).

Jan. 27, 2025 – People v. Martinez (2nd Dist. Div. 1, B335936)

The Court of Appeal finds that appellant, by failing to object below, forfeited his claim that it was error for a judge other than the judge who originally sentenced him to rule on his PC 1172.6 petition.  Even if the the challenge had been preserved, appellant failed to show prejudice under the Watson standard. Appellant’s failure to establish prejudice also defeats his ineffective assistance of counsel claim based on counsel’s failure to object to the judge’s assignment to the case.

Jan. 27, 2025 – People v. Rogers (6th Dist., H051665)

After prosecution appeal, Court of Appeal holds (1) defendant eligible for resentencing under PC 1172.75 is entitled to reconsideration of his entire sentence – not merely those portions affected by new laws – permitting resentencing court to dismiss strike priors under Romero; (2) dismissing strikes did not violate Prop 36 Three Strikes Reform Act (PC 1170.126) when defendant had never been eligible for PC 1170.126 resentencing; (3) dismissing strikes nonetheless constituted abuse of discretion where trial court failed to articulate sufficient basis for doing so, requiring remand for new resentencing.

Jan. 23, 2025 – People v. Lopez (S281488)

The California Supreme Court holds that a criminal case is not final for purposes of In re Estrada (1965) 63 Cal.2d 740, when the sentence is not final, including when an appellate court affirms a conviction and remands for reconsideration of sentencing-related issues. Under such circumstances, the Court expounds, the benefits of supervening ameliorative legislation apply retroactively.

Jan. 23, 2025 – People v. Superior Court (Vandenburgh) (1st Dist., Div. 3, A170818)

After one of appellant’s drug-related criminal proceedings was dismissed, the trial court granted appellant’s PC 1538.5 motion to compel the return of property (money) that was the subject of civil nonjudicial forfeiture proceedings following his arrest. The Court of Appeal grants the People’s petition for writ of mandate, finding that PC 1538.5(j)’s requirements were satisfied because the arresting officers served notice of the forfeiture proceedings, not on their own behalf but on behalf of the district attorney, after a deputy in that office initiated forfeiture proceedings and instructed law enforcement to serve the notice. Additionally, the court holds that the deadline to file a writ is the 30 days provided by PC 1538.5(o) for rulings on a motion for return of property.

Jan. 21, 2025 – Andrew v. White (U.S. Supreme Court, 23-6573)

The Supreme Court summarily reverses denial of capital defendant’s habeas petition where prosecution “spent significant time at trial introducing evidence about Andrew’s sex life and about her failings as a wife and mother, much of which it later conceded was irrelevant.” The state reviewing court affirmed her conviction and death sentence on the grounds that any evidentiary errors had been harmless. On federal habeas review, the Tenth Circuit rejected Andrew’s due process claim under AEDPA on the ground that there was no “clearly established” SCOTUS precedent holding that the admission of unduly prejudicial evidence may render a trial “fundamentally unfair” for due process purposes. However, “clearly established federal precedent” – most notably, Payne v. Tennessee (1991) 501 U.S. 808, 825 – does provide that admission of evidence “that is so unduly prejudicial that it renders the trial fundamentally unfair” may establish a due process violation. The Court remands for consideration of the merits of due process claim.

Jan. 16, 2025 – People v. Bey (2nd Dist, Div. 2, B335964)

Held: (1) no abuse of discretion in terminating defendant’s pro per status after repeated disruptions; (2) PC 29800 conviction valid under 2nd Amendment; (3) the “good cause” requirement under former version of state’s concealed carry licensing laws (PC 26150 etc.) is unconstitutional under Bruen, but is severable from balance of statutory regime, rendering defendant’s carrying loaded firearm in public (PC 25850(a)) conviction also valid; (4) sentence on PC 25850(a) stayed per PC 654.

Jan. 15, 2025 – Statement on Denial of Review – Cole v. Superior Court (S287432/A169804.)

Concurring in the denial of review, Justice Liu, joined by Justice Evans, notes “[f]urther percolation may prompt us to take up this issue in a future case,” and invites the legislature to revisit the statute.  The petition sought review of an equal protection issue presented by differential treatment of developmentally disabled individuals considered dangerous (WIC 6500) and individuals civilly committed under other schemes.  Opinion re-issued with published statement.

Jan. 15, 2025 – Review Grant – People v. Lopez (S287814)

The issue to be briefed and argued is limited to the following: Does Penal Code section 1172.6, subdivision (a)(3), which requires defendants to allege that they “could not presently be convicted of murder or attempted murder because of changes to section 188 or 189 made effective January 1, 2019,” render ineligible for relief petitioners who could have raised their challenges to imputed malice on prior direct appeal?

Jan. 14, 2025 – In re Stephenson (3rd Dist., C099785)

Habeas petition denied where SVP detainee remains in custody three years after court ordered him conditionally released. In published portion of opinion, court holds delay violated neither the statutory scheme (WIC 6600 etc.) nor due process, as it was caused by state placement agency’s inability, despite persistent efforts, to locate suitable housing. The trial court also reasonably concluded release as a transient would not protect public safety.

Jan. 13, 2025 – People v. Superior Court (White) (2nd Dist., Div. 6, B334427)

The Court of Appeal holds that if a defendant is tried after the decisions in Banks and Clark, relief under PC 1172.6 is precluded when a jury finds appellant guilty of felony murder as a “major participant” who had acted with “reckless indifferent to human life” even if the jury is not instructed on the Banks/Clark factors.  The Court notes however, that a finding of “reckless indifference to human life” made by a jury before Banks and Clark does not preclude a defendant from making a prima facie case for relief under PC 1172.6 even if the trial evidence would have been sufficient to support the findings under Banks and Clark.

Jan. 13, 2025 – People v. Love (2nd Dist., Div. 3, B331017)

The Court of Appeal holds that the record of conviction establishes appellant is ineligible for resentencing under PC 1172.6 as a matter of law because he was convicted as the actual killer and not under any abrogated theory of liability. The Court relies on the jury instructions which included instructions that appellant was accused of killing with malice aforethought and second degree murder with express or implied malice, but did not include felony murder, aiding and abetting, or any other theory of implied malice. Thus, appellant was convicted as the actual killer who personally harbored malice.

Jan. 7, 2025 – People v. Bravo (1st Dist., Div. 2, A168580)

Resentencing under PC 1172.75 is available where the PC 667.5(b) enhancement was originally imposed and stayed; the court found no good reason to additionally require that the enhancement was executed.  Also, section 1172.75(d)(1)’s mandate that resentencing “shall result in a lesser sentence than the one originally imposed” was fulfilled even though the defendant received a sentence which totaled same the number of years. Even when a prison prior is stayed and not executed, elimination of the prison prior reduces the potential sentence facing the defendant and therefore results in a lesser sentence than the one originally imposed. Finally, the record did not overcome the presumption that the trial court knew the sentencing laws and followed them.

Jan. 6, 2025 – People v. Collins (S279737)

The Supreme Court holds there is insufficient evidence to convict defendant of second-degree implied malice murder, on a failure-to-protect theory, as an aider and abettor or direct perpetrator, for the death of her son by the father while she was in another room. Failure to protect homicide liability is limited to situations wherein the parent knew of the perpetrator’s intent to commit the charged crime because they saw it being carried out, or because they had reason to know, to a substantial degree of certainty, that it was occurring or would occur and failed to act in conscious disregard for life.

Dec. 31, 2024 – People v. Quintero (1st Dist., Div. 5, A165276)

The Court of Appeal concludes that the prosecution’s use of the terms “monsters” and “predators” did not violate the Racial Justice Act (PC 745).  Appellants argued that the RJA forbids the use of such dehumanizing terms against persons of color. Although the Court agrees the term “monster” may be suggestive of an animal/beast and should generally not be used to describe defendants, here the prosecutor’s use of the term twice during the fairly lengthy closing was “in the context of describing the defendants’ vicious crime.” The Court also finds that characterizing defendants’ conduct as predatory was justified based on the evidence.

Dec. 31, 2024 – People v. Garcia et al. (4th Dist., Div. 1, D082237)

The Court of Appeal reverses appellants’ convictions finding the trial court prejudicially erred by admitting gang evidence. Appellants had been charged with murder and other charges to benefit a criminal street gang under PC 186.22. The court bifurcated the gang allegations but allowed evidence of the gang’s violence/illegal activities to prove appellants’ “intent, motive, conspiracy, and aiding and abetting.” The Court of Appeal finds this gang evidence irrelevant because there was no evidence the crimes had any connection to the gang – no showing that gang signs were thrown, gang threats were made, or that the crime occurred on gang territory.

Dec. 31, 2024 – In re Z.H. (2nd Dist., Div. 3, B338184)

Mother appeals the judgment freeing the child from her custody and terminating her parental rights pursuant to Fam. Code 7822. Mother argues that the proposed co-adoption arrangement by father and paternal grandmother is legally invalid. The appellate court disagreed finding that the trial court did not err or abuse its discretion in terminating her parental rights. The matter was remanded to correct a clerical error.

Dec. 27, 2024 – People v. Hodge (2nd Dist., Div. 2, B337339)

Defendant filed (1) PC 1172.1 request for resentencing and (2) PC 745 RJA motion. Trial court’s order denying both is not appealable under People v. Loper (2015) 60 Cal.4th 1155. As for PC 1172.1 request, the court’s decision to not exercise its discretion to recall sentence did not affect defendant’s substantial rights under PC 1237(b) because the court had no statutory obligation to act on request. As for RJA motion, court did not have jurisdiction to consider it because incarcerated defendants whose convictions are final may only raise RJA claim in a petition for a writ of habeas corpus under PC 745(j) and In re Montgomery (2024) 104 Cal.App.5th 1062, 1070, review granted Dec. 11, 2024, S287339.

Dec. 26, 2024 – People v. Gudiel (2nd Dist., Div. 8, B330830)

The trial court properly denied defendant’s 1172.6 petition where substantial evidence supported its finding that defendant aided and abetted an implied malice murder. Where defendant engaged in a gang-related beating that resulted in the death of the victim, sufficient evidence supported that he acted with implied malice where he knew he was aiding in a life-endangering attack by bat-wielding coparticipants and defendant intended to stop the victim from defending himself by punching, kicking, and throwing a heavy bike on the victim. Defendant knew his conduct endangered the victim’s life and acted with conscious disregard for the victim’s life, even if the victim’s head trauma was not caused by the bike. The trial court did not err in refusing to apply People v. Clark (2016) 63 Cal.4th 522, which is only used in a felony-murder analysis. A concurring opinion would have held that the phrases “reckless indifference to human life” and “conscious disregard for human life” have the same meaning and apply an equivalent standard.

Dec. 26, 2024 – People v. Stubblefield (6th Dist., H048598)

During closing argument in a rape trial of a former NFL player, the prosecutor asserted that the police did not search appellant’s house for a gun because he was a famous Black man. The prosecutor also implied it would be bad publicity to search an African American’s residence in Morgan Hill. The Court of Appeal holds that these statements constitute “racially discriminatory language about” appellant’s race within the meaning of the RJA (PC 745 (a)(2)), and that appellant’s conviction was therefore sought or obtained in violation of the Act. Finding further that the RJA precludes harmless error analysis, the court vacates appellant’s conviction and sentence.

Dec. 23, 2024 – People v. Perrot (1st Dist., Div. 4, A168485)

No constitutional violation in prohibiting sex offender parolee from: (1) using a computer; (2) associating with known sex offenders; and (3) possessing sexually stimulating devices. Computer restriction not overbroad where defendant’s crimes involved a computer and there was an exception for approved employment activities, sex offender association not vague or overbroad, and sex device ban not unduly burdensome on right to privacy considering state’s interest in preventing new offense.

Dec. 23, 2024 – Mendez v. Superior Court (4th Dist., Div. 3, G063164)

Trial court correctly refused to apply PC 1370.01 and dismiss misdemeanor complaint after defendant found incompetent to stand trial, as defendant was also charged with felonies in a separate case. PC 1367(b) states PC 1370.01 applies “to a person” charged “with a misdemeanor or misdemeanors only,” while PC 1370 applies “to a person” charged “with a felony.” PC 1370 therefore governed competency proceedings in both of the defendant’s cases.

Dec. 20, 2024 – People v. Baugh (1st Dist. Div. 3, A166277)

The Court of Appeal holds that a defendant does not have a constitutional right to require the prosecution to obtain and disclose information sufficient for the defense to investigate whether psychiatric records of a witness existed and to subpoena them if they did.  The trial court had denied appellant’s request to have the prosecution question a witnesses about a psychiatric diagnosis of schizophrenia and to order the prosecution to obtain mental health records so the defense could ascertain if they had any relevance.

Dec. 20, 2024 – People v. Zwerenz (3rd Dist., C098659)

Although the appeal from the recommitment order under the Mentally Disordered Offenders Act was moot, the Court of Appeal addresses the defendant’s substantial evidence claim. Equal protection principles may entitle the defendant to review of his substantial evidence claim. In general, the appropriate remedy is to remand the matter for an evidentiary hearing to allow the state the opportunity to establish a factual basis justifying the disparate treatment of the affected groups, but the court of appeal instead addressed the merits of the claim in the unpublished portion of the decision.

Dec. 19, 2024 – In re Lerke (4th Dist., Div. 1, D084051)

It is unlawful for mentally incompetent Murphy conservatees (Welf. & Inst. Code, § 5008, subd. (h)(1)(B)) who are “placed” in the state hospital to be confined in county jail indefinitely while waiting for bed space. The statutory framework governing the placement of conservatees requires them to be placed in a treatment facility that adequately promotes their treatment and provides protection for the public. (§ 5358, subd. (a)(1)(B).) The county jail does not satisfy these requirements and is not included in the list of facilities authorized to provide treatment. The court noted that some individuals on Murphy conservatorships are incarcerated in county jail for years waiting for room in the state hospital, which often results in a significant deterioration of their mental health.

Dec. 18, 2024 – In re P.S. (1st Dist., Div. 2, A169651)

Prior to a scheduled WIC 366.22 hearing, mother filed a request under Evid. Code 730 for a bonding study. The juvenile court denied the request stating it was improper for the court to appoint an expert to aid mother in her “defense” and that the request was unripe. The Court of Appeal disagrees holding that a parent may request, and the court must consider a request, for appointment of a psychological expert to aid the parent in their capacity as a party to the dependency proceedings. In addition, the appellate court holds that is is not categorically premature for a parent to request appointment of an expert to perform a bonding study during the reunification phase.

Dec. 18, 2024 – People v. Nava (3rd Dist., C098758)

While serving a life sentence, appellant stabbed another inmate and was convicted of several crimes, including both PC 4500 (assault by a prisoner serving a life sentence) and PC 4501 (assault by a prisoner). The Court of Appeal holds that, pursuant to the language of PC 4501 (“[e]xcept as provided in Section 4500”), a person convicted under PC 4500 cannot also be convicted under PC 4501 for the same conduct.

Dec. 18, 2024 – People v. Torres (4th Dist., Div. 2, E081367)

The Court of Appeal holds that evidence of genetic testing or marriage and cohabitation is sufficient, but not necessary, to establish parentage for a conviction of incest. The Court finds sufficient evidence to support three forcible rape charges under the theory that the non-consensual sexual intercourse was accomplished by force or duress. The Court also finds that appellant’s sentence of 22 years, 8 months, followed by a consecutive sentence of life without the possibility of parole, is not cruel and unusual punishment based on the facts of the case.

Dec. 18, 2024 – People v. Lattin (4th Dist., Div. 1, D083262)

Dec. 18, 2024 – People v. Barnes (4th Dist., Div. 1, D084512)

The trial court erred in denying the defendant’s motion under CCP § 231.7 challenging the prosecutor’s use of a peremptory challenge to strike a Black prospective juror because the court speculated about what other reasons the prosecutor could have relied on to strike the juror. The prosecutor’s stated reasons for the challenge, which focused on the prospective juror’s attitude, were presumptively invalid under section 231.7(g)(1)(B), and the court did not follow the procedures outlined in section 231.7(g)(2) to rebut the presumption of invalidity. The trial court erred under CCP § 231.7(d)(1) when it rejected the prosecutor’s stated reasons justifying its peremptory challenge and overruled the objection based on reasons the prosecutor never raised. The court of appeal further found insufficient evidence to support the defendant’s conviction for participation in a criminal street gang as well as the gang enhancements, and held that double jeopardy principles prohibit retrial on those issues.

Dec. 18, 2024 – Statement on Denial of Review – In re Mendoza (S287251)

Dissenting Statement by Justice Liu to Court’s denial of a pro per habeas petition alleging RJA violations based on racial disparities in LWOP sentencing.  The dissent would have issued an OSC where petitioner presented some data in support of his claims and the superior court denied his requests for discovery and appointed counsel.  “Unless RJA petitioners have some other means of accessing comprehensive county-level data, today’s denial of review leaves petitioners like Mendoza in an impossible catch-22: Their petitions are deemed inadequate for lack of the very data they seek counsel and discovery under the RJA to obtain. Our inaction portends a silent evisceration of the RJA.”

Dec. 17, 2024 – Gabriel M. v. Superior Court (4th Dist., Div. 2, E084329)

When a juvenile court orders a youth transferred to adult criminal court, WIC § 801 and rule 5.770(e)(2) require that, upon request, the juvenile court must stay criminal court proceedings pending an appeal of the order. After the juvenile court ordered Gabriel M. transferred to criminal court under WIC § 707, his counsel informed the court of an intent to appeal the order and requested a stay of criminal proceedings under rule 5.770(e)(2). The juvenile court issued a stay but subsequently ordered the stay lifted over Gabriel’s objection, and ordered him transferred to county jail. The court of appeal held rule 5.770(e)(2) requires the juvenile court to stay criminal court proceedings “until a final determination of the appeal,” and the court can only lift the stay upon Gabriel’s request. The court of appeal further held the juvenile court erred by transferring Gabriel to county jail in the absence of a petition by the probation department and without following the procedures required by WIC § 208.5.

Dec. 12, 2024 – People v. Superior Court (Mitchell) (S281950)

Trial court’s unauthorized pretrial order reducing a felony to a misdemeanor was not appealable, but might be reviewable by writ. The People appealed a trial court’s pretrial order reducing a felony to a misdemeanor ostensibly pursuant to PC 17(b); the People also filed a petition for writ of mandate, and the Court of Appeal granted a stay of the trial court proceedings. The CSC holds the order was not appealable, whether or not unauthorized, because the order did not preclude the People from prosecuting the charged wobbler offense (see § 1238(a)(1), (8)); it simply determined that the offense was a misdemeanor rather than a felony. And, unless specifically ordered otherwise, a temporary stay ordered by an appellate court in writ proceedings continues in effect until the opinion is final and the Court of Appeal has issued its remittitur.

Dec. 11, 2024 – Review Grant – In re Montgomery (S287339/D083970)

Questions Presented (as framed by petition for review): (1) Does a trial court have jurisdiction to entertain a freestanding section 745(d) discovery motion that accompanies a habeas petition that raises RJA claims? (2) Is a trial court permitted to deny a habeas petition that raises RJA claims without first hearing a petitioner’s section 745(d) discovery motion?

Dec. 11, 2024 – Review Grant – People v. Hughey (S287455/B325796)

This case presents the following issue: Was there sufficient evidence of asportation to support defendants’ convictions for kidnapping (Pen. Code, § 207, subd. (a))?

Dec. 11, 2024 – Review Grant – Conservatorship of A.E. (S287241/A169299)

As framed in the petition for review: “Does Delay of Nearly One Year in Initiating an LPS Trial – over Objection of the Conservatee – Violate Due Process and Equal Protection Only upon Showing of Prejudice to the Ability to Present a Defense, Not Whether the Delay Is Egregious, Lacks Good Cause, and Whether the Conservatee Timely Asserted Their Rights under the Rules of Court and
the Welfare and Institutions Code?”

Dec. 11, 2024 – People v. Armas (4th Dist., Div. 1, D082091)

Appeal is moot where appellant completed term of probation while appeal was pending. Appellant appealed from a trial court finding that he violated the terms of his probation, where the trial court declined to terminate probation. Any collateral consequences from the finding that appellant violated the conditions of his probation are too remote to prevent a finding of mootness because those consequences “will not arise unless there is additional criminal conduct,” and “even then,” the probation violation “is just one of many factors a court may consider in deciding whether to grant probation, or what sentence to impose.”

Dec. 10, 2024 – Nunez-Dosangos v. Superior Court (1st Dist., Div. 3, A171177)

The Court of Appeal holds that appellant’s pretrial detention, which was in excess of the maximum potential sentence for the charged offense (including conduct credits), was excessive in relation to the government’s public safety goals and constituted impermissible punishment in violation of the federal and state due process principles. However, because appellant entered a guilty plea and was released on his own recognizance, the Court did not provide further relief and instead dismissed the petition as moot.

Dec. 10, 2024 – People v. Gonzalez (6th Dist., H050752)

At SB 483 and PC 1172.75 resentencing, the trial court erred when it reimposed the upper term based on aggravating factors unproven by stipulation or found true beyond a reasonable doubt as now required under PC 1170(b)(2). Under the doctrine of constitutional avoidance, the same requirements for imposing an upper term under PC 1170(b)(2) applies to PC 1172.75(d)(4). Opinion disagreed with People v. Brannon-Thompson (2024) 104 Cal.App.5th 455, 466-467 that held, under the plain language of PC 1172.75(d)(4), the new requirements under 1170(b) apply “only if the trial court is imposing the upper term for the first time at a section 1172.75 resentencing.” Brannon-Thompson did not address the constitutional implications of PC 1170(b) under People v. Lynch (2024) 16 Cal.5th 730. The error was prejudicial because it violated defendant’s Sixth Amendment rights under Lynch. Reversed and remanded for resentencing for trial court to apply requirements of amended PC 1170(b).

Dec. 9, 2024 – People v. Muhammad (2nd Dist., Div. 3, B334294)

PC 1172.6 prima facie denial affirmed for defendant who pleaded no contest to attempted murder and admitted GBI and weapon use allegations. “Uncontroverted” record of conviction showed prosecution “theory of the crime” at time of plea was defendant acting as direct and sole perpetrator. Preliminary hearing transcript was properly considered as evidence of prosecution theory without necessity of finding true any particular fact in the transcript.

Dec. 9, 2024 – People v. Billy (1st Dist., Div. 5, A169671)

The plain language of Vehicle Code section 23552 requires that DUI offenders convicted under section 23550 and granted probation must serve at least 180 days in county jail, not at a rehabilitation facility. Under section 23552(a), if a person convicted under section 23550 receives probation, “the court shall impose as [a] condition[] of probation that the person be confined in a county jail for at least 180 days.” The plain language of section 23552 required the trial court in this case to impose the 180 days in county jail without credit for appellant’s voluntary pre-plea stay in a residential alcohol treatment facility and without allowing him to serve the mandatory minimum 180 day jail term through a stay at a rehabilitation facility.

Dec. 5, 2024 – People v. Hall (5th Dist., F087187)

The Court of Appeal holds that the statements of an 11- and 8-year-old were properly admitted under hearsay exceptions,  and further, admission of the statements did not violate the Sixth Amendment as they were not testimonial under Crawford. The court also holds that appellant had forfeited any Crawford/Sixth Amendment claims by his intentional involvement in the children’s absence at trial.

Dec. 5, 2024 – In re T.R. (2nd Dist., Div. 7, B329240

Mother raised ICWA violations in an appeal from jurisdiction and disposition. While the appeal was pending, a WIC 366.26 hearing was held and the juvenile court selected legal guardianship as the permanent plan. The Department moved to dismiss mother’s appeal arguing the appeal was moot. The Court disagreed finding the juvenile court retained jurisdiction over the guardianshp and was able to redress or rectify any ICWA violations if reversible error was found.

Dec. 5, 2024 – County of L.A. v. Superior Court (2nd Dist., Div. 4, B339093)

After the minor died while in his parents’ care, the minor’s great-grandmother sued the County of Los Angeles for negligence. The trial court found that the County had a mandatory duty under WIC 361.3 to notify the relative about a removal warrant that it obtained but failed to execute. The Court of Appeal disagreed. WIC 361.3 does not give rise to a mandatory duty to notify a relative who requested preferential consideration for placement of an application for a protective custody warrant pursuant to WIC 340 or a court order granting a warrant prior to the minor’s removal for the physical custody of his or her parents.

Dec. 5, 2024 – People v. Vicencio (4th Dist., Div. 2, E082997)

The Court of Appeal holds that out-of-state convictions can be considered sexually violent offenses warranting prison prior enhancements under PC 667.5(b), even after changes in the law under PC 1172.75. PC 1172.75(a) makes invalid any sentence enhancement imposed prior to January 2020, pursuant to PC 667.5(b), except for an enhancement imposed for a sexually violent offense as defined in WIC 6600(b).  The court concludes that a PC 667.5(b) enhancement based on a prior conviction in another jurisdiction for an offense that includes all of the elements of an offense described in WIC 6600(b) remains valid.

Dec. 4, 2024 – People v. Clymer (1st Div., Div. 1, A166279)

Warrantless search of a decedent’s electronic devices after his death did not violate CalECPA because the parents gave valid consent. The defendant was convicted of various drug offenses after police found text messages from him relating to drug sales on the cell phone of a person who died after a suspected drug overdose. Police used the decedent’s electronic devices to arrange a subsequent drug deal with the defendant, resulting in a search warrant for various items, including the defendant’s cell phone. The search of the decedent’s electronic devices by law enforcement officers did not violate CalECPA because the decedent’s parents were “authorized possessors” under § 1546(b), and therefore, they could, and did, consent to the search. The court further found the search of the defendant’s cell phone pursuant to a warrant was lawful as it stemmed from a lawful search of the decedent’s devices, and the search warrant was sufficiently particular and not overbroad.

Nov. 27, 2024 – People v. Nguyen (2nd Dist., Div. 3, B329158)

The Court of Appeal holds that youth and nonyouth offenders are not similarly situated groups with respect to restrictions on the application of credits that can advance a minimum eligible parole date under PC 3046 (for nonyouths) and a youth parole eligible date under PC 3051 (for youths). Thus, the Court holds the restriction does not violate equal protection. Additionally, the Court holds that any disparate treatment in awarding credits was rationally related to ensuring that youth offenders did not further benefit beyond “the already significant benefit afforded only to youth offenders” under PC 3051.

Nov. 26, 2024 – C.C. v. L.B. (2nd Dist. , Div. 6, B331558)

After consenting to terminate his parental rights to a child born from his sperm donation, appellant petitioned the family court more than a decade later to establish himself as a presumed parent under Fam. Code 7611(d) and as a third parent under Fam. Code 7612(c). The appellate court found that appellant did not have standing under Fam. Code 8617 to establish parentage. The court found that a person whose parental rights were terminated remained a legal nonparent and did not have standing to pursue custody under any theory.

Nov. 26, 2024 – People v. Multani (2nd Dist., Div.3, B332945)

Compassionate release properly denied where inmate did not suffer from illness “with an end-of-life trajectory.” (PC 1172.2(b)(1).) Statute “requires, at a minimum, an illness that is progressing toward death at the time the petition is filed.” Here, the inmate’s stage IV cancer, although incurable, was controlled and suppressed through treatment, and therefore “currently” outside the statutory definition.

Nov. 26, 2024 – People v. Dowdy (1st Dist., Div. 5, A168182)

The trial court did not abuse its discretion when denying defendant’s request to dismiss prior strikes at PC 1172.75 resentencing under AB 600. AB 600 applies to resentencing under PC 1172.1, not PC 1172.75. AB 600 does not show legislative intent to apply PC 1385(c), which applies to “enhancement,” to the alternative sentencing scheme of the Three Strikes law. Application of PC 1385(c) to prior strikes conflicts with the Three Strikes law and neither SB 81 (adding mitigating factors in PC 1385(c)) nor AB 600 amended the Three Strikes law. The reduction of defendant’s 32 years to life sentence to 25 years to life was a meaningful modification of his sentence under AB 600.

Nov. 25, 2024 – People v. Canales (2nd Dist., Div. 8, B328388)

The Court of Appeal holds that, under the presumption of mandatory culpability and with no evidence of moral innocence, the jury instruction (CALCRIM No. 1120) for the offense of continuous sexual abuse of a child (PC 288.5) need not include the heightened mental state requirement of “an intent to cause sexual arousal” to satisfy the “substantial sexual conduct” element.  The Court further holds that any error in instructing the jury that PC 288.5 is a general intent crime was harmless based on the overwhelming evidence of appellant’s guilt. Finally, the Court holds that appellant’s sentence violated ex post facto laws; since the abuse of one of the victims was not a One Strike crime at the time of the offense, the multiple-victim enhancement does not apply.

Nov. 22, 2024 – In re Juan A. (2nd Dist., Div. 1, B337033)

Appellant, Juan A., is a teenager in long term foster care and dependent of the juvenile court. Juan appealed the juvenile court’s denial of his request for a brief continuance to be present at the status review hearing. The appellate court found that the juvenile court erred because Juan had a right to be present at the review hearing pursuant to WIC 349. The denial was prejudical because, if the hearing had been briefly continued as requested, there was a reasonable probability Juan would have obtained a more favorable result than maintaining the status quo.

Nov. 21, 2024 – People v. Ibarra (4th Dist., Div. 1, D084309)

Insufficient evidence to support kill zone instruction for attempted murder where there was no evidence the defendant was aware of another person’s presence in the kill zone. The defendant and his cohorts drove onto a rural property used for illegal cultivation of marijuana wearing black clothes and ski masks. The owner was sitting outside of a small wooden shed, and one of his workers was napping on the floor of the shed. The owner of the property ran into the shed, and the shooters immediately opened fire on the shed. The trial court erred by giving the kill zone instruction because, in the absence of the defendant’s awareness that anyone else was present in the shed with the intended target, it cannot be said that the defendant intended to kill the second person concurrently with his intent to kill the intended target. The Court of Appeal declined to follow People v. Adams (2008) 169 Cal.App.4th 1009, which held that whether or not the defendant is aware that the attempted murder victims were within the zone of harm is not a defense, as long as the victims actually were within the zone of harm.

Nov. 21, 2024 – People v. Jones (1st Dist., Div. 1, A168930)

Any trial error regarding when an entry occurred during a burglary was harmless beyond a reasonable doubt. After the close of evidence, the prosecution raised a new theory of burglary, arguing defendant had the requisite intent to commit a burglary when defendant later entered the victim’s bedroom instead of when he first entered her apartment.  Any error regarding this new theory and the denial of a unanimity instruction was harmless  because of the jury’s true finding on the burglary circumstance attached to a count of sexual penetration in the kitchen; since defendant’s entry into her bedroom did not occur until after the sexual penetration in the kitchen, by finding this circumstance true, the jurors necessarily agreed that Jones entered the victim’s apartment with the requisite intent to commit a sexual offense. Also, the prosecutor did not commit misconduct by stating in closing argument that C.M. was “no longer an alleged victim.”

Nov. 21, 2024 – People v. Bagsby (4th Dist., Div. 1, D083358)

Petitioner, who was 15 years old at the time of his offense and arrest, and who was sentenced to the functional equivalent of LWOP (107 years), petitioned for recall and resentencing under PC 1170(d). The Court of Appeal grants the petition and orders petitioner’s release, finding that petitioner could not be transferred to adult criminal court, post-Prop. 57, and fell outside the jurisdiction of the juvenile court. In so holding, the court refuses to strike the resentencing provision from PC 1170, disagreeing with the People that the enactment of PC 3051 establishes that PC 1170(d)’s exclusion of juveniles sentenced to the functional equivalent LWOP comports with equal protection.

Nov. 20, 2024 – Garcia v. Superior Court (2nd Dist., Div. 7, B334806)

The Court of Appeal holds that once a court issues an order to show cause in response to a PC 1172.6 petition, a defendant is allowed to obtain postconviction discovery. A defendant’s right to present or respond to additional or new evidence at the evidentiary hearing under PC 1172.6 would be thwarted if a defendant was denied the ability to discover relevant evidence in advance of the hearing.  In this case, the trial court granted a motion to quash a subpoena, finding section 1172.6 did not allow for postconviction discovery.  Defendant filed a petition for writ of mandate challenging this order, which was granted by the Court of Appeal.

Nov. 19, 2024 – People v. Martinez (2nd Dist., Div. 3, B330041)

Trial court did not err in refusing an instruction on attempted voluntary manslaughter based on heat of passion, where instruction was not supported by the evidence and was prohibited under Penal Code section 192(f)(1) based on circumstances related to the victim’s sexual orientation. Under Section 192(f)(1), provocation is not reasonable if it results from discovery or knowledge of the victim’s sexual orientation, including when the victim made “an unwanted nonforcible romantic or sexual advance towards the defendant… ” The victim’s alleged actions (hugging, climbing on, and touching the leg of appellant and his co-defendant) were unwanted but not forcible, so subdivision (f)(1) applied. Other evidence presented did not establish the provocation required to support the instruction.  The court also rejected appellant’s argument that the trial court improperly proceeded with the jury trial in his absence.

Nov. 18, 2024 – People v. Robinson (3rd. Dist, C098299)

Nov. 8, 2024 – In re Baby Girl R. (6th Dist., H051362)

In an appeal from disposition, minor argued that mother’s whereabouts were unknown and mother should have been bypassed for reunification services pursuant to WIC 361.5(b)(1). The appellate court disagreed. Where there is clear and convincing evidence that a parent’s whereabouts are unknown and proof that a reasonably diligent search has failed to locate the parent, the juvenile court has discretion to bypass reunification services but is not required to do so. Even though post-appeal events rendered the appeal moot, the court exercised its discretion to reach the merits because it involved an important question of statutory interpretation.

Nov. 8, 2024 – Sanchez v. Superior Court (4th Dist., Div. 2, E083015)

No error where trial court removed defendant’s deputy public defender from the case, over defendant and counsel’s objection, due to conflict of interest based on counsel’s alleged potential RJA violation (PC 745). Counsel allegedly told prosecutor to offer defendant a better plea bargain because prosecutor and defendant were from the same racial group. Defense counsel has a duty to investigate any potential RJA violation, but investigating one’s own potential unconscious bias is not possible, creating an actual conflict justifying counsel’s removal. Dissent deems removal unwarranted because no conceivable RJA violation occurred.

Nov. 5, 2024 – People v. Banuelos (2nd Dist., Div. 8, B333189)

Petition for writ of mandate granted vacating protective order because records of an officer’s sustained finding of dishonesty are nonconfidential and subject to public inspection under PC § 832.7(b)(1)(C). Petitioner filed a Pitchess motion seeking Brady material after learning that the one of the investigating officers had received a sustained finding of dishonesty. Following an in-camera review, the trial court ordered that the records be disclosed, but issued a protective order for the documents under EC § 1045(e). The 2DCA directed the trial court to vacate its protective order as they are not confidential records pursuant to PC § 832.7(b)(1)(C).

Oct. 31, 2024 – Martinez v. Superior Court (6th Dist., H050489)

After defendant successfully moved to vacate his conviction and withdraw his plea under PC 1473.7, the trial court denied his motion under section 1473.7 to dismiss the information. Although the order is not an appealable order, the appeal was treated as a petition for writ of mandate. Petition denied because PC 1203.4 does not bar refiling of the original charges when defendant has withdrawn his plea and PC 1473.7 does not mandate dismissal of refiled charges. Double jeopardy does not bar further proceedings.

Oct. 30, 2024 – People v. Villagrana (2nd Dist., Div. 6, B331439) [Ordered depublished May 14, 2025]

The trial court did not err in denying PC 1172.6 petition for resentencing after evidentiary hearing. The victim died after being shot six times in a “drive-by,” gang motivated shooting. A rational factfinder could have found appellant guilty as either the actual shooter or direct aider and abettor to murder. Appellant’s no contest plea to voluntary manslaughter and admission of gang and personal use of firearm allegations showed his connection to, and causation of the murder.  Note: The dissent noted the AG’s concession that insufficient evidence supported a murder conviction under People v. Jones (2003) 30 Cal.4th 1084, 1120.

Oct. 29, 2024 – People v. Serrano (3rd Dist., C100856)

The Court of Appeal holds that the Racial Justice Act permits a defendant to file a stand-alone postjudgment discovery motion before filing a habeas corpus petition. Additionally, an order denying a postjudgment discovery motion under the Act is not appealable, rather a defendant’s remedy is by writ of mandate.

Oct. 29, 2024 – In re H.B. (1st Dist., Div. 2, A169493)

In an appeal from disposition, father appealed the juvenile court’s order pursuant to WIC 362(c) placing the children with mother and removing the children from his custody. The Court of Appeal agreed that the juvenile court should have proceeded pursuant to WIC 361(c). WIC 362(c) applies when the parent retains custody of the child whereas WIC 361(c) applies when a juvenile court removes a child from the physical custody of a parent, even if removal is from only one custodial parent. Under WIC 361(c), a juvenile court can order both the removal of one parent from the home and removal of the child from the parent. Furthermore, under WIC 361(e), the juvenile court may not order a child removed from parental custody without finding that reasonable efforts were made to prevent or eliminate the need for removal. The disposition order was reversed and remanded for a new disposition hearing in compliance with section 361.

Oct. 28, 2024 – People v. Field, People v. Asher (4th Dist., Div. 1, D081792, D082092)

In prior appeals, appellate courts concluded SVPs and NGIs were similarly situated for purposes of the statutory privilege not to testify at commitment trials. They remanded these two SVP cases (where both appellants had been compelled to testify) for an evidentiary hearing with directions to apply the strict scrutiny test to the prosecution’s justification that SVPs should be compelled to testify in their commitment trials. The trial court did not err when finding the prosecution failed to prove that the disparate treatment of SVPs is justified under the strict scrutiny test and ordered new trials for both appellants.

Oct. 25, 2024 – In re G.R. (2nd Dist., Div. 8, B332699)

Alleged father appealed the juvenile court’s order that his visits with the child be monitored. The Court dismissed the appeal finding that because he was only an alleged father, he did not have rights to custody, reunification services, or visits. Accordingly, alleged father could not show he was aggrieved by the order and did not have standing to appeal the order.

Oct. 25, 2024 – People v. Corbi (4th Dist., Div. 1, D081490)

A defendant may not raise an RJA claim for the first time on direct appeal, as the traditional rules of forfeiture apply. The statutory language and legislative history indicate that review of a Penal Code section 745 claim, like any other appellate claim, is subject to the general appellate rules of preservation and forfeiture of claims that could have been but were not made in the trial court. Defense counsel’s objections after closing arguments that the prosecutor’s statements were “improper” were insufficient to preserve the claim that the remarks violated the RJA, a distinct statutory scheme with enumerated procedures and remedies.

Oct. 25, 2024 – People v. Thompson (4th Dist., Div. 2, E079255)

Trial court erred in denying PC 1172.6 petition at prima facie stage on basis jury found true felony-murder special circumstance, as the finding pre-dated Banks and Clark. Further, a defendant under sentence of death is not precluded from seeking PC 1172.6 relief.

Oct. 25, 2024 – People v. Rogers (4th Dist., Div. 2, E082263)

Transfer of defendant’s probation from one county to another did not constitute change in circumstance justifying probation modification to add drug and alcohol terms; supervision in the original county “was not a ‘fact’ upon which defendant’s original probation order was based.”

Oct. 23, 2024 – Price v. Superior Court (3rd Dist., C100920)

If a trial court reconsiders an order finding defendant suitable for conditional release under the SVPA, due process requires that the procedural protections of WIC 6608(g) apply at that hearing, including the appointment of requested experts. A year after the superior court found that Price was suitable for conditional release under the SVPA, the parties still could not find appropriate housing, and Price’s behaviors began to cause concern. The superior court held a subsequent hearing regarding housing, in which it changed its decision regarding Price’s suitability for conditional release. The Court of Appeal granted a writ of mandate, finding that once the superior court decided to hold a new hearing on Price’s suitability for release, the procedural protections within section 6608, subdivision (g) applied, and Price should have been afforded the right to the appointment of experts as he had requested.

Oct. 23, 2024 – People v. Royal (1st Dist., Div. 2, A166139)

There was sufficient evidence the defendant committed arson, a modified arson instruction was not erroneous, and there was no error in refusing an instruction on accident. The defendant caused a fire in his house by manufacturing concentrated cannabis using an “open blast” process that allowed the butane gas to settle in the presence of lit candles. The Court of Appeal concluded the defendant “willfully” caused the fire because he intentionally engaged in the act that caused the fire—operating an illegal open blast butane honey oil lab near lit candles, and he acted “maliciously” because he intentionally engaged in the wrongful act of manufacturing concentrated cannabis—a felony offense. The court further found the trial court’s modified arson instruction did not misstate the law, and there was no error in refusing an accident instruction because it was not supported by substantial evidence.

Oct. 23, 2024 – People v. Ocobachi (2nd Dist., Div. 2, B330062)

Grand jury transcripts are inadmissible at PC 1172.6 evidentiary hearing, and the remaining evidence presented was insufficient to support the trial court’s order denying the defendant’s petition. In 2007, the defendant entered a no contest plea to voluntary manslaughter and assault likely to cause GBI, and admitted a gang allegation. Relying in part on the grand jury transcripts, the trial court found the prosecution proved the defendant was guilty of aiding and abetting implied malice murder, finding it sufficient that the defendant knew he was aiding in a violent attack. The Court of Appeal found the grand jury transcript inadmissible. Without it, the court was left with the factual basis for the defendant’s plea that he was “involved in an assault that resulted in the death of [the victim],” but he was not the shooter, and the defendant’s testimony that he participated in the fight and was seen in the video striking someone with a pool stick. The court found this insufficient to support the court’s order denying the petition, and remanded the matter for a new evidentiary hearing.

Oct. 21, 2024 – People v. Alazar (2nd Dist., Div. 2, B331710) [Ordered depublished July 16, 2025]

In a 2-1 decision, the Court of Appeal holds a defendant who enters a West plea, admitting the preliminary hearing transcript contains a factual basis for the plea, is not barred as a matter of law from resentencing pursuant to Penal Code section 1172.6. Under People v. West (1970) 3 Cal.3d 595, a defendant may take advantage of a plea bargain while maintaining his or her claim of innocence. Here, the defendant stipulated that the preliminary hearing transcript contained a factual basis for the plea without admitting the truth of any alleged facts in that transcript. The trial court impermissibly engaged in judicial factfinding at the prima facie stage under section 1172.6 when it relied upon the preliminary hearing transcript to determine that defendant acted alone, since defendant did not stipulate to the truth of the facts contained therein. The majority disagreed with People v. Patton (2023) 89 Cal.App.5th 649, review granted June 28, 2023.

Oct. 17, 2024 – People v. Nuno (6th Dist., H051205)

In advance of a PC 1172.6 evidentiary hearing, a defendant may obtain disclosure of Brady material in an officer’s personnel file by filing a Pitchess motion, as “fundamental fairness” requires this result. Here, the trial court ordered discovery under Pitchess (EC 1043 etc.) but the record was silent as to whether it also reviewed the officer’s file for Brady material. A conditional reversal and remand to conduct an in-camera Brady review is therefore required.

Oct. 16, 2024 – Statement Concurring With Order Denying Review – People v. Doaifi (S286155/G062098)

In a case where the defendant was convicted of second-degree murder based on a traffic accident while he was speeding, Justice Evans (joined by Justice Liu) issued a statement concurring in the denial of review but raising questions that have arisen from the application of People v. Reyes (2023) 14 Cal.5th 981 to second-degree murder theories of liability in vehicular homicide cases (“Watson murders”).  Justice Evans’s statement outlines the development of theories of liability and raises concerns with the expansion of homicide liability to cases where little evidence was presented that death was the highly probable result of the defendant’s behavior.

Oct. 15, 2024 – People v. O’Bannon (2nd Dist., Div. 3, B327483)

Court of Appeal rejects defendant’s argument that his prior serious felony enhancement (PC 667(a)(1)) should have been subject to dismissal on the ground it was “based on a conviction that is more than five years old” (PC 1385(c)(2)(H)). While defendant argued the sentencing date for the current offense should govern the washout period, court holds the commission date is the relevant one under PC 1385(c)(2)(H). Although the statute and legislative history are silent on which date governs, contrary holding would incentivize sentencing delays, lead to absurd results and fail to achieve statutory goal of rewarding only those who remain crime free for five years.

Oct. 8, 2024 – People v. Sanmiguel (2nd Dist., Div. 6, B328160)

Where the prosecutor relied on two presumptively invalid reasons for a peremptory challenge under Penal Code section 231.7, subdivision (g), the prospective juror’s lack of attention alone was a sufficient to overcome the presumption of bias where the trial court confirmed that the asserted behavior occurred. Although the prosecutor was required to explain why the asserted behavior matters to the case to be tried, reversal was not warranted where the prosecution had a legitimate reason to be concerned about the prospective juror’s ability to be “fair and impartial” if he could not be attentive. The peremptory challenge here was unrelated to a conscious or unconscious bias, and “no capable attorney would fail to challenge such a juror unless the attorney had what is known in the trade as a dead-bang loser.”

Oct. 8, 2024 – People v. Moseley (4th Dist., Div. 3, G062697)

The Court of Appeal reverses appellant’s sentence and remands for resentencing finding it was ambiguous whether the trial court considered appellant’s service-related PTSD as a mitigating factor as required by PC 1170.9 and PC 1170.91. Appellant testified at trial that he was a combat veteran with PTSD. Neither the probation report nor the sentencing memorandums cited PC 1170.9/PC 1170.91.  At sentencing, defense counsel stated the statutes were not “directly applicable.” The trial court also failed to cite to PC 1170.9 or PC 1170.91 at sentencing.  The Court of Appeal emphasizes that trial courts must expressly abide by these statutes.

Oct. 4, 2024 – People v. Knowles (2nd Dist., Div. 1, B328439)

The trial court did not abuse its discretion by not resentencing 23-year-old unhoused defendant who suffered psychological and childhood trauma to the low term under PC 1170(b)(6) for voluntary manslaughter. The court of appeal rejected defense reliance on People v. Walker (2024) 16 Cal.5th 1024 because the case interpreted PC 1385(c)(2), not 1170(b)(6), and the statutes do not have “the same object or purpose and were enacted for different ends.”

Oct. 3, 2024 – People v. Dorado (4th Dist., Div. 1, D082126)

The Court of Appeal holds that once a trial court determines that full, consecutive terms are mandated under PC 667.6(d) because the violent sex offense occurred against multiple victims, it violates dual use to rely on the same multiple victims fact to impose upper terms on those counts under PC 1170.1. Although the parties agreed that courts are prohibited from relying on the same fact to impose both an upper term and a discretionary full, consecutive term under section 667.6(c), the issue was whether the same prohibition applies when the consecutive sentence is mandatory under section 667.6(d).  The Court holds that it does.

Oct. 2, 2024 – In re Maury (3rd Dist., C095050)

Constructive deprivation of counsel under McCoy v. Louisiana (2018) 584 U.S. 414, was not implicated in capital case where defense counsel presented mitigating evidence at the penalty phase over defendant’s express objection. Defendant claimed that counsel’s presentation during the penalty phase of certain mitigating evidence as a “cry for help” amounted to an admission of guilt. Although the strategy was contrary to defendant’s stated objective of obtaining a death verdict, the jury could have at most inferred consciousness of guilt from the evidence, which was not tantamount to an express concession of guilt by defense counsel or any other conduct or statements tantamount to such a concession for purposes of McCoy.  A related argument, under Faretta, was procedurally barred, forfeited, and denied on the merits. Appellant did not show his attorneys actively represented conflicting interests during the penalty phase and that an actual conflict of interest adversely affected their performance.

Oct. 1, 2024 – People v. Harris (2nd Dist., Div. 3, B325948)

The trial court had the authority to reconsider its initial order granting appellant’s 1172.6 resentencing petition where the court vacated its initial ruling and requested supplemental briefing.  A trial court has inherent power to reconsider its own rulings.

Sept. 30, 2024 – People v. Ellis (4th Dist., Div. 1, D082304)

Held: (1) Trial court explicitly exercising EC 352 discretion in admitting uncharged sex offenses as propensity evidence (EC 1108) need not engage in second EC 352 analysis before instructing jury that charged offenses can be considered for same purpose (CALCRIM 1191B); (2) Legislature had rational recidivism and conduct bases for rendering defendant sentenced under “One Strike” law (PC 667.61) statutorily ineligible for youthful offender parole (PC 3051(h)) while leaving those convicted solely of PC 288.7 eligible; (3) 8th Amendment challenge to de facto LWOP sentence for youthful offender forfeited and also meritless.

Sept. 26, 2024 – People v. Hersom (1st Dist., Div. 1, A168129)

Sept. 25, 2024 – People v. Reid (4th Dist., Div. 3, G064127)

The Court of Appeal holds that when an infliction of corporal injury under PC 273.5 involves strangulation/suffocation, courts must apply the statutory definition of a traumatic condition, “impeding the normal breathing or circulation of the blood of a person by applying pressure on the throat or neck,” in determining probable cause at a preliminary hearing.  The Court finds the evidence presented at the hearing supported a holding order under PC 273.5 – the impeding of Jane’s ability to breathe normally, and/or the impeding of the circulation of Jane’s blood to her brain, were traumatic conditions resulting from the infliction of corporal injury.

Sept. 25, 2024 – People v. Mason (2nd Dist., Div. 2, B332566)

The Court of Appeal holds that the Three Strikes Law, specifically PC 667(e)(1), does not allow the trial court to double an LWOP sentence, overruling its decision in People v. Hardy (1999) 73 Cal.App.4^th 1429.

Sept. 25, 2024 – People v. Zavala (3rd Dist., C098684)

At PC 1172.6 evidentiary hearing, trial court properly admitted defendant’s inculpatory statements from parole risk assessment report and parole hearing. The Third District follows other Courts of Appeal in holding judicially created use immunity (People v. Coleman (1975) 13 Cal.3d 867) does not bar use of such statements at PC 1172.6 hearings. Parole hearing testimony is also not inherently involuntary, as inmate has right to remain silent at hearing without silence being used against him (15 CCR 2236). Court of Appeal leaves open possibility “case-specific circumstances” might lead to a different conclusion on voluntariness, but defendant makes no particularized showing here.

Sept. 25, 2024 – Review Grant – People v. Shaw (S286453/C098821)

The California Supreme Court grants review on the following issue: May two prior convictions arising out of a single act that harms multiple victims constitute two strikes under the Three Strikes law? (People v. Vargas (2014) 59 Cal.4th 635; People v. Williams (1998) 17 Cal.4th 148.)

Sept. 25, 2024 – People v. Briscoe (1st Dist., Div. 4, A167964)

Youthful offenders sentenced to LWOP for acting as major participants with reckless indifference during robbery or burglary murder are entitled to PC 3051 parole hearing. People v. Hardin (2024) 15 Cal.5th 834 did not foreclose equal protection challenges to PC 3051’s exclusion of non-juvenile LWOP sentences if based on a particular special circumstance. Here, defendant acted as major participant with reckless indifference in robbery/burglary and received LWOP under PC 190.2(d), where identical conduct results in parole eligibility if sentenced solely under PC 189(e)(3). As no rational basis supports PC 3051 treating those sentenced under the two statutes differently, an equal protection violation results.

Sept. 25, 2024 – People v. Gallegos (5th Dist., F086151)

Petitioner’s plea rendered him ineligible for SB 1437 relief where he pled to voluntary manslaughter after SB 1437’s effective date but before SB 775’s effective date, despite a separate charge of attempted murder that was dismissed as part of the plea. Petitioner was initially charged with murder and attempted murder. As part of the plea, the People amended the murder charge to manslaughter and dismissed the attempted murder count. Petitioner argued he could have faced attempted murder liability under a now-invalid theory had he proceeded to trial in lieu of entering a plea to voluntary manslaughter in 2019, prior to the effective date of SB 775. However, a statutory purpose of 1172.6 as evidenced in the provisions was to provide relief for specific convictions obtained under a now-invalid theory of liability, and not based on dismissed charges separate and apart from the conviction at issue (here voluntary manslaughter).

Sept. 23, 2024 – People v. Gallardo (4th Dist., Div. 1, D084179)

The trial court erred when it denied the defendant’s PC 1172.6 petition for resentencing without reviewing the record of conviction. The trial court summarily denied the defendant’s 1172.6 petition based upon the prosecutor’s statements that the jury instructions showed the defendant was convicted under a direct aiding and abetting theory. The prosecution did not submit briefing, and the record does not indicate the trial court reviewed any part of the record of conviction. The Court of Appeal rejected the state’s harmless error argument because it would require the court to determine the defendant’s eligibility for relief in the first instance.

Sept. 19, 2024 – People v. Hughey (2nd Dist., Div. 6, B325796)

The Court of Appeal upholds a kidnapping conviction finding the movement of employees from the front of the store to a room in the back was “more than a slight or trivial distance” and it “increased the risk of physical or psychological harm to the person beyond that necessarily present in the robbery.” The Court disagrees with People v. Hall (Sept. 6, 2024, No G062749) [kidnapping conviction in a home invasion robbery reversed as the movement of the victim up and down stairs was not substantial.]  The Court finds error in the imposition of an out on bail enhancements (PC 12022.1(b)) when no conviction of underlying offense was shown.

Sept. 18, 2024 – In re J.S. (2nd Dist., Div. 6, B336233)

No abuse of discretion in transferring 20-year-old (16 and 17 at time of offenses) to adult court on murder, sexual assault and robbery charges occurring over two-year period (WIC 707(a)). Substantial evidence supported finding four of five WIC 707(a)(3) factors favored transfer, and court properly applied law in concluding minor could not be rehabilitated prior to juvenile jurisdiction terminating at age 25.

Sept. 18, 2024 – People v. Valle (1st Dist., Div. 1, A169080)

A traffic stop is not unduly prolonged for Fourth Amendment purposes merely because the officer decided to wait to pull the vehicle over until after backup had arrived. A police officer first observed at a gas station that defendant’s car did not have a front license plate; the officer called for a canine backup, and then pulled over the vehicle three minutes later after defendant drove a quarter of a mile. While the officer was writing the citation for the front plate, the dog alerted to the presence of a firearm in the vehicle. The trial court erred in finding that the detention was unduly prolonged because the traffic stop should have begun earlier, at the gas station, as a traffic stop does not begin for Fourth Amendment purposes until an officer pulls a vehicle over. The court also held that Penal Code section 2806.5, which requires an officer to inform the driver of the reason for the stop, does not alter Fourth Amendment jurisprudence that pretextual stops are permitted if the officer had an objective basis for the traffic stop and the lawful bounds that justify the stop are observed.

Sept. 18, 2024 – People v. Martinez (4th Dist., Div. 1, D083424)

Appellant erroneously convicted of both continuous sexual abuse (PC 288.5) and specific sex offenses against same victim during same date range, in violation of PC 288.5(c)’s requirement such charges be presented in the alternative. Here, proper remedy is remand for trial court to decide which conviction(s) to vacate and then resentence, distinguishing precedents holding remedy is for Court of Appeal itself to resentence to the longest possible term. Further, sufficient evidence of “duress” supported PC 288(b)(1) verdict and no error (PC 1138) in responding to jury question about sexual penetration (288.7(b)) with same anatomical term jury itself used.

Sept. 13, 2024 – People v. Jones (4th Dist., Div. 1, D081131)

There was sufficient evidence that defendant proximately caused the victim’s death where the victim’s family decided to withdraw his life support, as the decision was a dependent, not independent, intervening cause of the victim’s death. The jury could reasonably infer that the decision to withdraw the victim’s life support was foreseeable and was therefore not an independent intervening cause, and removing life support for the victim caused a type of harm that could reasonably be expected from defendant’s conduct. Also, the trial court did not err in refusing to give the defendant’s requested pinpoint instruction defining an independent intervening cause because the requested instructions were potentially confusing and the court properly explained to the jury that if something unusual intervened, it would negate proximate causation.

Sept. 12, 2024 – People v. Ingram (3rd Dist., C098000)

Where all experts, including appellant’s expert, agreed appellant continued to meet the definition of an SVP, substantial evidence supported the trial court’s denial of a petition for conditional release, even where appellant’s expert believed it would be possible to create an alternative to the typical conditional release program. Appellant acknowledged that he remained an SVP and that he would not be suitable for placement in the community using the standard treatment program. Under the alternative conditional release suggested by appellant’s expert, one had to presume that facility staff would never let appellant out of their sight in order to find appellant met his burden of proving he would not be likely to sexually reoffend if conditionally released; and the trial court was not required to make such a presumption. The Court of Appeal also found that appellant’s constitutional claims – including that the DSH was required to provide treatment that reasonably accommodates appellant’s intellectual disabilities and that the SVPA is unconstitutional because of excessive delays – were not properly before the Court.

Sept. 12, 2024 – Cole v. Superior Court (1st Dist., Div. 3, A169804)

Equal protection challenge rejected. When the state seeks to extend the civil commitment of a developmentally disabled individual considered dangerous (WIC 6500 etc.), the statute permits trial on the extension request to occur after the original commitment period expires. Although statutes governing NGI (PC 1026.5) and OMHD (PC 2962) commitments require trial on extending commitment to occur before expiration of original period, differences between the respective disabilities provide a rational basis for the distinction.

Sept. 12, 2024 – In re Gilberto G. (2nd Dist., Div. 7, B332002)

The Court of Appeal reversed the jurisdictional and dispositional findings. The appellate court found that mother’s one incident of alcohol abuse while  caring for her children did not support the court’s finding that she posed a risk of danger to her children at the time of the jurisdiction hearing. In addition, evidence of the one incident and a four-year-old sustained allegation of substance abuse (of which there was no evidence in the record) did not support the court’s finding that mother’s conduct created a substantial risk of serious physical harm or illness.

Sept. 11, 2024 – People v. Turntine (San Diego Co. App. Div., JAD24-05)

Held: (1) EC 352 objection to toxicologist testifying all people impaired to drive at 0.05% blood alcohol content (BAC) did not preserve appellate review on ground testimony nullified contrary legislative determination; (2) no abuse of discretion in admitting the testimony under EC 352 or EC 801; (3) alleged error harmless under Watson where VC 23152(a) conviction supported by defendant’s objective impairment signs and 0.08/0.07% BAC. The dissent concludes the toxicologist opinion improperly negated legislative determination (VC 23610) that all people are impaired only at 0.08% BAC.

Sept. 9, 2024 – In re V.S. (2nd Dist., Div. 4, B332310)

At a permanency planning hearing, the juvenile court, without request or input from the parties, held that adoption would not be in the child’s best interest under the sibling exception to adoption, WIC 366.26(c)(1)(B)(v), and selected legal guardianship as the permanent plan. The Court of Appeal reversed the juvenile court’s order stating that the juvenile court applied the wrong legal standards and relieved mother of her burden to prove that an exception applied. Furthermore, substantial evidence did not support the court’s order.

Sept. 6, 2024 – In re Montgomery (4th Dist., Div. 1, D083970

The Racial Justice Act (RJA) does not authorize a freestanding motion for discovery; it only authorizes discovery in a pending proceeding under PC 745 (a).  The RJA did not create an exception to the general rule that there is no statutory authority for a trial court to entertain a postjudgment motion that is unrelated to any proceeding then pending before the court. The trial court’s denial of the discovery motion was therefore not an appealable order, because the trial court had properly denied defendant’s related petition for writ of habeas corpus for failure to state a prima facie case. One justice would have found that the RJA does authorize a freestanding motion for discovery, but would have dismissed as the discovery denial was not an independently appealable order.

Sept. 6, 2024 – People v. Hall (4th Dist., Div. 3, G062749)

Convictions for kidnapping reversed where two robbers assaulted homeowner at the front door and beat him before moving him upstairs to open the safe and then back downstairs to the kitchen to tie him up. The movements up and down the stairs were not “substantial” and merely incidental to the crime of robbery. The court also vacated PC 186.22(b) and PC 12022.53(e)(1) enhancements because the jury was not instructed the predicate offenses must have “commonly benefited [the] criminal street gang, and the common benefit from the offenses is more than reputational,” as required by PC 186.22(e)(1), as amended by AB 333. Remanded for full resentencing.

Sept. 5, 2004 – People v. Ruiz (4th Dist., Div. 3, G062596)

The Court of Appeal finds that the trial court erred in calculating appellant’s incarceration time based on his date of sentencing, holding that under PC 1170, a person becomes “incarcerated” when that person is place in custody on the relevant charge. PC 1170 provides, “[w]hen a defendant who was under 18 years of age at the time of the commission of the offense for which the defendant was sentenced to imprisonment for life without the possibility of parole has been incarcerated for at least 15 years, the defendant may submit to the sentencing court a petition for recall and resentencing.”

Sept. 5, 2024 – People v. Robinson (San Diego Co. App. Div., JAD24-04)

Trial court erred in accepting misdemeanor guilty plea with indicated disposition of continuing sentencing for a year and then dismissing. Held: (1) continuance itself not reversible error because 120-day misdemeanor sentencing time limit (PC 1449) is “directory not mandatory,” as only legal consequence for violation (dismissal) is personal to the defendant; (2) the indicated disposition was nonetheless unlawful under People v. Municipal Court (Gelardi) (1978) 84 Cal.App.3d 692, which superior court has no authority to disregard.

Sept. 4, 2024 -Dora V. v. Superior Court (2nd Dist., Div. 7, B332985)

The legal guardian filed a petition for writ of mandate arguing that the juvenile court erred when it terminated her family reunification services at the 18-month review hearing. The appellate court set forth the differences between legal guardians appointed by the juvenile court versus those appointed under the Probate Code. Legal guardians appointed by the juvenile court are not entitled to a presumption of reunification. The legal guardian may receive reunification services in the discretion of the juvenile court court if it is in the best interests of the child.

Sept. 4, 2004 – In re Brown (5th Dist., F087367)

The Court of Appeal holds the Three Strikes exclusion under PC 3055’s Elderly Parole Program applies to prisoners who were sentenced under the Three Strikes law after they already commenced serving a prison sentence.   In defendant’s case he was originally sentenced to an indeterminate term but, while in prison, was convicted of a new crime and sentenced to a determinate term under the Three Strikes law.  The Court finds that when the defendant went before the parole board, his “current sentence” included both his indeterminate term and his consecutive determinate term, even though he had not started serving his determinate term.

Aug. 30, 2024 – People v. Mejia (2nd Dist., Div. 8, B320116)

The Court of Appeal affirms appellant’s conviction of VC 20001 after jury trial. Showing a witness three six-pack photo lineups did not offend due process. The trial court did not err in denying a mistrial based on the prosecution’s comments in violation of the court’s ruling prohibiting the mention of whether immediate assistance could have saved the victim’s life. There was sufficient evidence that appellant’s flight from the scene injured the victim beyond the trauma of the initial impact to support an enhancement under PC 12022.7.  Restitution is proper for injuries caused by flight from the scene, not injuries from the accident itself.

Aug. 30, 2024 – Dimaggio v. Superior Court (6th. Dist., H051516)

The Court of Appeal overturns the trial court’s denial of appellant’s motion to suppress. The Court agrees with the trial court that the officers’ search of appellant’s cell phone and tablet unlawfully exceeded the scope of the search warrant when they searched for “items without timestamps” rather than limiting the search for data within the dates allowed on the warrant. The Court disagrees that the good faith exception to the exclusionary rule applied as the officers continued investigating based on evidence in the report even after they realized the evidence was not limited to the date and time parameters set out in the search warrant.

Aug. 31, 2024 – People v. Superior Court (Williams) (6th. Dist. H051569)

The Court of Appeal holds that when a defendant is resentenced under PC 1172.75 due to the existence of an invalid prior prison term enhancement, the defendant is not entitled to application of the revised penalty provisions of the Three Strikes Reform Act (§ 1170.12) to potentially reduce an indeterminate life term to a determinate term. Applying PC 1172.75 in a manner that would allow such resentencing unconstitutionally amends the resentencing procedure and requirements set forth in PC 1170.126 of the voter approved Three Strikes Reform Act.

Aug. 29, 2024 – People v. Tidd (1st. Dist., Div. 3, A167548)

The Court of Appeal holds there was insufficient foundation to admit the firearms toolmark analyst’s opinion matching a cartridge case to defendant’s gun. The analyst failed to cite any studies or other information to support the validity of his technique, as required by Sargon Enterprises, Inc. v. University of Southern California (2012) 55 Cal.4th 747, and his methodology employed no articulable standards. The court declines to apply Kelly to the admissibility of firearms toolmark evidence and does not adopt a categorical rule forbidding the admission of firearms toolmark testimony that two cartridge cases were fired in the same firearm.

Aug. 29, 2024 – People v. Daffeh (1st Dist., Div. 5, A166899)

The trial court erred when it denied the defendant’s petition for dismissal under PC 1203.4 for failure to pay victim restitution when no specific amount of victim restitution was ordered. Under PC 1203.4, a defendant may petition for dismissal of their misdemeanor conviction when they have fulfilled the conditions of probation throughout the probation period. A trial court shall grant relief under this section if the defendant has fulfilled the conditions of probation for the entire period of probation. Because Daffeh fulfilled the conditions of his probation, the trial court erred in denying his petition. Although the victim had submitted a claim to the prosecutor’s office for restitution, the court never ordered Daffeh to pay a specific amount of restitution. That the court had reserved the issue of victim restitution did not impose a probation condition on the defendant to pay.

Aug. 29, 2024 – People v. Williams (S262229)

Exclusion of One Strike offenders from seeking early parole under California’s youth offender parole statute (PC 3051) does not violate Equal Protection. Under PC 3051, certain persons incarcerated for crimes committed at a young age may be eligible for early release on parole. However, the statute categorically excludes certain groups from consideration for youth offender parole hearings, including those convicted of forcible sexual offenses and sentenced under the One Strike law. (PC 3051(h).) The CSC held there is no equal protection violation as a rational basis exists to exclude One Strike offenders from early parole eligibility based on the increased risk of recidivism they pose and the aggravated nature of their offenses. Justice Liu dissented, citing data showing that sex offenders consistently recidivate at lower rates than non-sex offenders and pointing out that the Legislature has expressly recognized that the attributes of youth are not crime-specific.

Aug. 29, 2024 – In re Hill (1st Dist., Div. 2, A166191)

Habeas petitioner established a prima facie case for relief under both Brady and Napue based on the prosecution’s failure to disclose promised leniency to a key witness and the prosecution’s subsequent use of the witness’s false statements during trial. After Hill was convicted and sentenced to death in 1987 for murder, postconviction discovery revealed a promise not to prosecute a key prosecution witness, and that virtually all the prosecution witnesses received favorable treatment from the prosecution in connection with their own criminal matters and/or rewards for the information they provided. Hill established materiality, even in light of “overwhelming” evidence against him at trial, because the combined effect of the personal interests of almost all prosecution witnesses could have significantly changed the appearance of the prosecution’s case.

Aug. 28, 2024 – People v. Vigil (5th Dist., F085762) [Ordered depublished December 11, 2024]

The trial court lacked jurisdiction to consider the defendant’s prematurely filed motion for relief under the Racial Justice Act (RJA) because the defendant, whose case is final, and who is currently serving a prison sentence for murder, falls within the last phase of retroactive eligibility, commencing January 1, 2026 (PC 745(j)(5)).  Section 745(j)(3), provides relief to those “currently serving a sentence in the state prison or in a county jail pursuant to subdivision (h) of Section 1170, or committed to the Division of Juvenile Justice for a juvenile disposition, regardless of when the judgment or disposition became final.” The court found defendant ineligible because he was “not sentenced to prison ‘pursuant to subdivision (h) of Section 1170, or committed to the Division of Juvenile Justice for a juvenile disposition.’”

Aug. 27, 2024 – People v. Howard (6th Dist., H050156)

The Court of Appeal conditionally reverses the judgement and remands to the trial court to hold an RJA hearing. Appellant made a prima facie case the prosecution violated the RJA by asking him about his connections to East Palo Alto. Appellant provided the trial court information about East Palo Alto’s historical reputation and demographics, and the recognized connection between a person’s place of residence, racial group, and negative stereotypes, facts that, if true, establish that there is more than a mere possibility that the prosecutor used racially discriminatory language or otherwise exhibited racial bias towards appellant.

Aug. 27, 2024 – T.M. v. Superior Court (1st Dist., Div. 5, A169823)

The psychotherapist-patient privilege (EC 1014) does not bar disclosure of minor’s mental health records to a court-appointed competency expert when competency proceeding was initiated by the minor’s counsel declaring a doubt as to the minor’s competence. EC 1016 creates an exception to EC 1014 when the “patient” has “tendered” an issue related to the patient’s mental health, and the minor’s counsel declaring a doubt on behalf of the minor triggers the exception.

Aug. 26, 2024 – In re Tellez (S277072)

The CSC exercises its supervisory powers to require trial courts going forward to inform criminal defendants of the potential consequences under the Sexually Violent Predator Act (SVPA) of a guilty or no contest plea. Tellez had not demonstrated prejudice resulting from his counsel’s failure to inform him of the SVPA, and therefore, the Court did not consider whether a failure to advise of SVPA consequences would constitute ineffective assistance of counsel. However, because commitment under SVPA constitutes a significant deprivation of liberty, and a defendant should be made aware of the possibility of its commitment, trial courts going forward must explicitly advise criminal defendants of the potential SVPA consequences when they plead guilty or no contest to a qualifying offense or when the court is aware that a defendant has previously been convicted of such an offense and is pleading guilty or no contest to a new offense. Justice Liu filed a concurring opinion indicating that he would have resolved the underlying issue and held defense counsel have a constitutional duty to advise their clients of the SVPA consequences of a potential plea, and stated it should be made clear that civil commitment under SVPA should be classified as a “direct” consequence of conviction.

Aug. 22, 2024 – Sellers v. Superior Court (3rd Dist., C100036)

The Court of Appeal upholds the trial court’s denial of defendant’s motion to suppress evidence from a vehicle search. The appellate court held a useable amount of loose marijuana on the floorboard of a vehicle provides probable cause to search the vehicle because H&SC 11362.3 prohibits possession of an open container of cannabis while driving. The court also found that the totality of the circumstances – the driver and defendant seemed nervous, the driver denied there was marijuana in the car, officers saw a rolling tray and and useable amount of loose marijuana scattered on the floorboard – supported probable cause to search.

August 23, 2024 – People v. Dauterman (3rd Dist., C099223)

The Court of Appeal held: (1) no “legal basis, statutory or otherwise” for defense contention that custody credits earned before plea and placement on probation should or could reduce the length of the probation period; (2) no abuse of discretion in trial court declining to reinstate probation, and instead executing suspended prison term, where defendant failed to report to probation for three consecutive months; (3) trial counsel not ineffective in failing to argue probation had expired with respect to one alleged violation where two “conceivable” tactical reasons explain counsel’s omission.

Aug. 22, 2024 – People v. Brannon-Thompson (3rd Dist., C097565)

The Court of Appeal holds that the plain language of PC 1172.75(d)(4) permits the resentencing court to impose an upper term sentence when the upper term was originally imposed, even where aggravating factors not admitted or found true beyond a reasonable doubt (PC 1170(b)(2)).

Aug. 21, 2024 – People v. Green (4th Dist., Div. 1, D082232)

At PC 1172.75 resentencing, trial court erred by finding prior prison term valid because defendant served concurrent prison terms for both robbery (PC 211) and a lewd act involving a minor (PC 288(a)). While the information alleged, for the purposes of Three Strikes law, that defendant was previously convicted of a committing a lewd act upon a child in violation of PC 288(a), it did not allege, and defendant did not admit, that he served a separate prison term for that offense. Thus, the enhancement was not “imposed for a prior conviction for a sexually violent offense” within the meaning of section 1172.75.

Aug. 21, 2024 – People v. Soto (2nd Dist., Div. 3, B331652)

The trial court erred in denying defendant’s PC 1170(d) petition when defendant was sentenced to more than 100 years for crimes committed when he was 15. Under People v. Heard (2022) 83 Cal.App.5th 608, juvenile offenders sentenced to functionally equivalent LWOP terms are entitled to PC 1170(d) relief under the constitutional guarantee of equal protection. Parole eligibility under PC 3051 does not render juvenile offenders ineligible for relief under section 1170(d).

August 20, 2024 – People v. Ramirez (4th Dist., Div. 3, G063224)

Trial court erred in suppressing gun observed in vehicle after defendant ordered to exit car during routine traffic stop. Fourth Amendment permits lawfully detained driver to be ordered out of car without additional justification. Officer’s decision to order defendant out three minutes into the traffic stop did not change the constitutional analysis. Court also admonishes prosecutor’s description of  trial court’s legal analysis as “fabricated.”

Aug. 19, 2024 – In re Kenneth D. (S276649)

The Supreme Court held that where the juvenile court finds that ICWA does not apply based on an inadequate inquiry into a child’s native heritage, an appellate court, absent exceptional circumstances, may not consider evidence uncovered during a postjudgment inquiry to conclude the failure to conduct a proper inquiry was harmless.  The sufficiency of an ICWA inquiry must generally be determined by the juvenile court in the first instance.

Aug. 19, 2024 – In re Dezi C. (S275578)

The Supreme Court reversed the judgement of the appellate court. The Court held that a child welfare agency’s failure to make a proper ICWA inquiry requires conditional reversal of the juvenile court’s order terminating parental rights with directions to the agency to conduct an adequate inquiry. The duty of inquiry belongs to the agency and cannot be shifted to the parent. The Court did not decide what constitutes an adequate and proper inquiry necessary to satisfy WIC 224.2.  Dissent by Justice Groban.

Aug. 16, 2024 – People v. Obermueller (2nd Dist., Div. 8, B327891)

The trial court did not err in failing to instruct the jury on attempted stalking where defendant emailed threatening messages only to the victim’s family, not the victim herself. “The stalking statute [Pen. Code, § 646.9] forbids harassing and threatening others. How a threat is conveyed is not legally pertinent, so long as the prosecution establishes the statutory elements, including that the stalker made a threat with a sufficiently culpable intent.” The statute does not specify the exact level of intent required. (See § 646.9, subd. (a)). Applying the standard set forth in Counterman v. Colorado (2023) 600 U.S. 66, the court interpreted section 646.9(a) to be satisfied by “proof that defendants consciously disregarded a substantial risk that their communications would be viewed as threatening harm.” This requirement was satisfied by defendant’s emails to the victim’s family. Defendant’s stalking was completed, not attempted.

Aug. 15, 2024 – People v. Walker (S278309)

Under the plain language of PC 1385(c)(2), absent a finding that dismissal would endanger public safety, a sentencing court retains the discretion to impose or dismiss enhancements provided that it assigns significant value to the enumerated mitigating circumstances when present. PC 1385(c)(2), as added by SB 81, provides that a sentencing court in exercising its discretion to dismiss an enhancement shall afford great weight to evidence offered to prove certain enumerated mitigating circumstances, and proof of the presence of one or more of these circumstances weighs greatly in favor of dismissing the enhancement, unless the court finds its dismissal would endanger public safety. The CSC adopted the Sixth District’s interpretation of the statute in Ortiz: if the sentencing court does not find dismissal would endanger public safety, the presence of an enumerated mitigating circumstance will generally result in the dismissal of an enhancement unless the sentencing court finds substantial, credible evidence of countervailing factors that “may nonetheless neutralize even the great weight of the mitigating circumstance, such that dismissal of the enhancement is not in the furtherance of justice.”

Aug, 12, 2024 – People v. Espino (6th Dist., H051258)

The Court of Appeal holds that PC 1172.75 applies to all now-invalid prison priors imposed, whether the punishment was executed, stayed, or struck. The prosecution is not entitled to withdraw from the plea agreement if defendant is resentenced and his sentence is reduced. The dissent does not read the requirement of an “imposed” sentence enhancement to be satisfied where the enhancing punishment was stricken. Editors note: The following issue is pending before the California Supreme Court in People v. Rhodius (2023) 97 Cal.App.5th 38, review granted February 21, 2024 (S283169/E080064): Does Senate Bill No. 483 (Stats. 2021, ch. 728) entitle a defendant to a full resentencing hearing under PC 1172.75 if the defendant’s prior prison term enhancements (PC 667.5(b)) were imposed and stayed, rather than imposed and executed? Additionally, the following issue is pending before the California Supreme Court in People v. Montgomery (2024) 100 Cal.App.5th 768, review granted May 29, 2024 (S284662/A167813): Is the prosecution entitled to rescind a plea agreement when a defendant receives a full resentencing pursuant to SB 483 (Stats. 2021, ch. 728) and the trial court intends to reduce the sentence beyond eliminating the prior prison term enhancements (PC 667.5(b))?

Aug. 12, 2024 – In re N.J. (2nd Dist., Div. 4, B326007)

The Court of Appeal found the juvenile court erred by failing to apply the relative placement preference under WIC 361.3. The Department and juvenile court “utterly failed” to perform their duties. The clear legislative mandate to give early and prompt priority to placement with family members was ignored. The aunt was also not provided with proper notice as mother’s conservator, mother should have been appointed a guardian ad litem, and reasonable services were not provided to mother to support her visitation. Mother’s claim regarding the reasonableness of her services was not barred due to the juvenile court’s failure to provide proper notice of the writ requirement. The orders terminating mother’s services, denying mother’s WIC 361.3 motion, and terminating her parental rights were reversed.

Aug. 9, 2024 – People v. Moore (1st Dist., Div. 5, A167918)

The Court of Appeal holds that appellant was required to obtain a certificate of probable cause in a probation revocation case where appellant claimed ineffective assistance of counsel for failure to request PC 1001.36 pretrial mental health diversion. The court finds that its earlier decision to the contrary, People v. Hill (2021) 59 Cal.App.5th 1190, was implicitly abrogated by recent CA Supreme Court case People v. Braden (2023) 14 Cal.5th 791, which held that a PC 1001.36 request for diversion must be made before attachment of jeopardy at trial or entry of a plea, whichever comes first.

Aug. 8, 2024 – In re Zoe H. (4th Dist., Div. 2, E082653)

The Court of Appeal affirmed the juvenile court’s dispostional order. However, the opinion was published to clarify an error in the County’s argument that jurisidictional findings in general constituted prima facie evidence that the child cannot safely remain in the home. It is only a jurisdictional finding of severe physical abuse of a child under age five pursuant to subdivision (e) which constitutes prima facie evidence that the child cannot safely remain in the home.  The court noted that the error effectively deprived parents of appellate review of removal if there was sufficient evidentiary basis for jurisdiction.

Aug. 8, 2024 – People v. McCune (S276303)

Where court orders defendant to pay victim restitution in an amount to be determined (PC 1202.4(f)), court retains jurisdiction to order the specific amount after probation has expired (PC 1202.46). Defendant had argued court’s inability to modify probation after it expired (PC 1203.3(a)) precluded such an order.

Aug. 6, 2024 – In re S.R. (4th Dist., Div. 2, E082812)

In an appeal from jurisdictional and dispositional findings as to her child, Dominic, the Court of Appeal agreed that there was insufficient evidence to support the jurisdictional findings under WIC 300(b)(1) and (j). The appellate court stated it was not reasonable to infer that mother’s failure to protect her daughter from being sexually abused meant that the Dominic was at risk of any physical abuse as required under WIC 300(b)(1).  Substantial evidence also did not support the WIC 300(j) allegation alleged that Dominic was at risk of suffering from sexual abuse under WIC 300(d).  The dispositional findings and orders were reversed and the true findings under WIC 300(b)(1) and (j) were vacated with directions to dismiss the petition.

Aug. 6, 2024 – People v. Gonzalez (2nd Dist., Div. 3, B329607)

The Court of Appeal finds, by clear and convincing evidence, under PC 231.7, that there is no substantial likelihood that an objectively reasonable person would view cognizable group membership as a factor in the prosecutor’s use of a peremptory challenge to remove the juror. Rather, an objectively reasonable person would determine that the prosecutor exercised the challenge because of the prospective juror’s inability to be fair and impartial, as suggested by his own acknowledgement that he did not know if he could evaluate all testimony fairly due to his feelings about law enforcement.

Aug. 5, 2024 – People v. Wilson (S118775)

Death penalty affirmance. Non-capital holdings: (1) failure to comply with PC 859.7 does not automatically render photo lineup unduly suggestive; (2) jury instruction listing level of certainty as factor in evaluating eyewitness identification does not violate constitutional due process; (3) any error in excluding officer impeachment evidence was harmless beyond a reasonable doubt; (4) prosecution witness not unlawfully coerced by police; (5) EC 1202 error in refusing to admit inconsistent statements of hearsay declarant harmless under Watson; (5) evidence of hearsay declarant’s state of mind relevant and properly admitted; (6) no Miranda error where defendant invoked right to silence but later reinitiated discussion; (7) trial court under no duty to secure personal waiver of defendant’s right to testify in absence of information defendant and trial counsel have conflict; (8) good cause justified trial continuance over defendant’s objection; (9) motion for stay and remand to pursue RJA motion in trial court (PC 745(b)) need not automatically be granted, and no good cause here because trial court has jurisdiction to hear RJA claim presented via habeas writ and defendant also had access to habeas counsel.

Aug. 5, 2024 – People v. Dorsett (San Diego Co. App. Div., JAD24-03)

“[C]riticizing and video recording” a park ranger issuing a citation to another person is conduct protected by the First Amendment, requiring reversal of appellant’s “disorderly or offensive conduct” municipal code conviction.

Aug. 5, 2024 – In re Brandon H. (1st Dist., Div. 3, A166195)

Asked to dismiss and seal three of appellant’s delinquency petitions (WIC 786), juvenile court erred in citing the ineligibility of the second petition under WIC 707(b) as basis for refusing to dismiss the third, eligible petition. WIC 786 requires each petition be evaluated individually. Court had no discretion, though, to dismiss first petition when appellant suffered the second sustained petition while still on probation for the first (WIC 786(c)(1)).

Aug. 5, 2024 – People v. Frazier (S148863)

Death penalty affirmance. Non-capital related holdings: (1) no good cause to stay appeal for appellant to file RJA motion (PC 745), as claim not “intertwined” with issues on appeal; (2) substantial evidence supported giving flight instruction (PC 1127c, CALCRIM 372) and instruction correctly states the law; (3) appellant’s Faretta motions were untimely because made after start of trial, and their denial therefore evaluated under nonconstitutional abuse of discretion standard; (4) defendant’s assertion that granting Faretta motion would not have required a continuance did not automatically render otherwise untimely motion timely; (5) no abuse of discretion in denying any and all of the untimely Faretta requests; (6) no McCoy error [admitting guilt over client’s objection] where trial counsel presented certain mitigation evidence over client’s objection.

Aug. 1, 2024 – People v. Lynch (S274942)

The CSC holds that Chapman standard of review applies in determining whether, in cases where the judgment is not yet final, remand is required for resentencing pursuant to SB 567, which amended PC 1170(b). In 2022, section 1170(b) was amended to provide that the trial court shall in its discretion impose a sentence not to exceed the middle term unless there are circumstances in aggravation justifying the upper term, and the facts underlying any such circumstance have been stipulated to by the defendant or found true by the jury. Under Chapman review, a sentence imposed under former section 1170(b) must be reversed and remanded unless the reviewing court concludes beyond a reasonable doubt that a jury, applying that same standard, would have found true all of the aggravating facts upon which the court relied to justify the upper term, or that those facts were otherwise proven in compliance with the current statute. (§ 1170(b)(2), (3).) Because the new law altered the scope of the trial court’s discretion, the court also found the Gutierrez standard applies, requiring remand for resentencing unless the record clearly indicates the trial court would have found an upper term justified had it been aware of its more limited discretion.

July 31, 2024 – People v. Hicks (4th Dist., Div. 1, D081981)

Peremptory challenge to dismiss juror for her previous felony convictions and because she was “too opinionated” was not race neutral. After SB 310, individuals with felony convictions are allowed to serve as jurors and this prospective juror indicated her felony convictions would not affect her decision making. Regarding the assertion that she was “too opinionated” to work with other jurors, CCP 231.7, which was recently amended by AB 3070, makes a prospective juror’s exhibition of “lack of rapport or problematic attitude, body language, or demeanor” presumptively invalid reasons for a peremptory strike. This law does not apply here as it went into effect after the jury was empaneled, “but it does inform the Batson/Wheeler analysis.” The juror expressed that she could remain neutral and made no comments that suggested she was more opinionated than others who remained on the jury. This discrepancy in treatment suggests the challenge was pretextual. As such, insufficient evidence supported the trial court’s finding that the prosecutor’s stated reasons for his peremptory challenge were race neutral.

July 26, 2024 – In re A.P. (2nd Dist., Div. 1, B327857)

The Court of Appeal agreed with mother that the juvenile court erred when it declined to issue a restraining order protecting her from respondent, father. The juvenile court found a restraining order unnecessary since the parents no longer resided together. Instead of issuing the restraining order, the court orally ordered both parents to stay away from each other. The appellate court determined that those orders did not afford mother the protections of a WIC 213.5 restraining order. The matter was remanded for a new hearing on mother’s request.

July 26, 2024 – People v. Malbry (2nd Dist., Div. 8, B328627) [Ordered depublished Oct. 16, 2024]

The Court of Appeal affirms the denial of defendant’s petition to terminate his sex offender registration obligation. Amongst the seven PC 290.5 factors the court must consider, the nature and facts of the registerable offense is one that carries substantial weight. The court emphasized that the post-conviction passage of PC 288.7, which increased the penalty for defendant’s crime—adult sexual intercourse with a child under 10—is relevant to show that the Legislature believed that nature and severity of the crime posed a greater community risk than previously thought. The court disagrees with People v. Franco (2024) 99 Cal.App.5th 184, which rejected the relevance of PC 288.7.

July 25, 2024 – People v. Hernandez (5th Dist., F086665)

Appeal dismissed where defendant did not dispute his PC 1172.6 petition was properly denied, but instead argued case should be remanded for trial court to correct unauthorized portion of his original sentence. Opinion follows People v. King (2022) 77 Cal.App.5th 629 and People v. Boyd (2024) 103 Cal.App.5th 56, and disagrees with People v. Codinha (2023) 92 Cal.App.5th 976, in holding unauthorized sentence does not create freestanding trial court jurisdiction to correct the error. Habeas writ is the proper vehicle for challenging such a sentence.

July 22, 2024 – People v. Jimenez (4th Dist., Div. 1, D081951)

Collateral estoppel and law of the case doctrine did not bar defendant’s PC 1172.6 petition where the first petition was denied prior to significant changes in the law relating to the effect of youth on culpability in implied malice murder. Since the time of the trial court’s ruling on defendant’s first petition in August 2021, there have been significant changes in the law relating to the culpability of defendants who were young adults at the time of their crimes. Based on the nature and timing of these rapid developments, the court could not presume the trial court had an adequate opportunity to consider evidence of defendant’s youth (19 years old) and brain development in deciding whether he acted with malice. Nor could the court presume that the defense had an adequate incentive to present new evidence on the issue based on the law as it then existed. Defendant is entitled to a new evidentiary hearing. [Editor’s Note: The 1172.6 cases discussing the effect of youth since August of 2021 are People v. Harris (2021) 60 Cal.App.5th 939; In re Moore (2021) 68 Cal.App.5th 434; People v. Ramirez (2021) 71 Cal.App.5th 970; People v. Mitchell (2022) 81 Cal.App.5th 575; People v. Jones (2022) 86 Cal.App.5th 1076; People v. Oliver (2023) 90 Cal.App.5th 466; and People v. Pittman (2023) 96 Cal.App.5th 400.]

July 22, 2024 – People v. Hernandez (4th Dist., Div. 3, G063586)

The Court of Appeal holds that the prosecution is not entitled to withdraw from a plea bargain when the trial court recalls defendant’s sentence pursuant to PC 1172.75, conducts a full resentencing, and strikes enhancements pursuant to PC 1385 in addition to the prison priors. The court acknowledges the split of authority on the issue of whether a trial court under PC 1172.75 may conduct a full resentencing beyond what the statute expressly permits. Editors note: the following issue is pending before the California Supreme Court in People v. Montgomery (2024) 100 Cal.App.5th 768, review granted May 29, 2024 (S284662/A167813): Is the prosecution entitled to rescind a plea agreement when a defendant receives a full resentencing pursuant to SB 483 (Stats. 2021, ch. 728) and the trial court intends to reduce the sentence beyond eliminating the prior prison term enhancements (PC 667.5(b))?

July 18, 2024 – People v. Esquivias (2nd Dist., Div. 2, B329800)

Habeas review is issue specific, and a trial court is not obligated to revisit a defendant’s entire sentence because it granted habeas review to revisit a portion of that sentence. A trial court granted defendant’s petition for a writ of habeas corpus to dismiss the firearm enhancements on the basis that defendant’s convictions were not final when a new law took effect granting courts the discretion to dismiss those enhancements.  The trial court was not obligated to vacate the entire sentence, which would have then required application of all ameliorative laws that took effect after the defendant’s conviction became final. A trial court has discretion in deciding how to exercise its habeas jurisdiction and may limit a grant of habeas review to a specific sentencing issue presented in the petition.

July 16, 2024 – People v. Caparrotta (4th Dist., Div. 1, D083314)

Held: (1) objection to defense peremptory properly sustained where the challenge to the jury was based partly on body language the court did not observe (CCP 231.7(g)(2)), and finding of invalid reason eliminated need to evaluate under CCP 231.7(d)(1) the facially neutral reason counsel also gave; (2) substantial evidence supported elder abuse likely to cause great bodily harm verdict (PC 368(b)(1)); (3) CALCRIM 630 correctly and unambiguously defines “great bodily harm;” (4) no evidence court misunderstood presumptive low term requirement of PC 1170(b)(6); (5) alleged error in calculating restitution fine forfeited.

July 15, 2024 – Mendoza v. Superior Court (1st Dist., Div. 4, A170135)

Trial court erroneously denied PC 1382 dismissal motion when it tried to establish good cause to continue through judicial notice, which (1) is limited to the existence of court records (EC 452(d)), and not the truth of statements therein, such as purported staff shortages; (2) applies only to undisputed facts, whereas defendant contended courtrooms and staff were available.

July 12, 2024 – People v. J.M. (3rd Dist., C099085)

Recent amendments to WIC 707(a)(3) (AB 2361, SB 545) which both “make it more difficult” to transfer juveniles to adult court, are retroactive to non-final judgments under Estrada. Further, ameliorative changes to PC 1170(b) (SB 567) and PC 654 (AB 518) should also apply to defendant’s previously final adult sentence because that sentence was “reopened” for Estrada purposes by subsequent juvenile court order vacating and then reentering transfer to adult court.

July 11, 2024 – People v. Arellano (S277962)

Under Penal Code section 1172.6, trial courts may not impose uncharged and unproven allegations or enhancements as part of resentencing a successful petitioner. Incident to appellant’s plea to second-degree murder, a gun use allegation and the underlying felony counts of burglary and robbery were dismissed. During section 1172.6 proceedings, the trial court vacated the murder conviction, sentenced Arellano on the redesignated attempted robbery conviction, and imposed a gun use enhancement. The Supreme Court agreed with the Court of Appeal that the trial court erred. Where the murder was charged generically and the target offense or underlying felony was not charged, the murder shall be redesignated as the target offense or underlying felony for resentencing purposes. Nothing in the text of section 1172.6 grants a court discretion to add an uncharged/unproven allegation or enhancement at resentencing.

July 11, 2024 – People v. Velador (4th Dist., Div. 2, E081372)

Mental health diversion may be granted after a doubt has been declared but before the issue of competency has been decided.  The plain language of sections 1001.36 and 1368 et. seq allow the trial court to grant mental health diversion after a doubt has been declared but before the issue of competency has been decided because a defendant found either competent or incompetent can be considered for diversion. Further, the legislative intent favors granting diversion at the earliest time pretrial, rather than waiting for a competency determination.

July 11, 2024 – People v. Nguyen (6th Dist., H050103)

PC 1172.6 prima facie denial was proper where the only theory of conspiracy liability presented to the jury was conspiracy to commit first-degree murder, which required finding express malice. Therefore, although “conspiracy” is a crime, malice was not “imputed” to the defendant “solely” on his “participation in a crime” when the crime itself required express malice.

July 10, 2024 – Rodriguez v. Superior Court (6th Dist., H049016)

The Court of Appeal holds that PC 1370(c)(1)’s two-year commitment limit for defendants undergoing competency restoration may be tolled for continuances or other delays attributable to the defense.

July 9, 2024 – People v. Canales (2nd Dist., Div. 8, B328388)

The Court of Appeal upholds the language of CALCRIM 1120, finding the instruction need not contain a heightened mental state requirement for PC 288.5’s continuous sexual abuse element of substantial sexual conduct. The instruction satisfies the presumption of mandatory culpability even though neither it nor PC 288.5 contain a mental state requirement for a finding of substantial sexual conduct. There was no potential for this aspect of PC 288.5 to inculpate morally innocent conduct. The court further finds harmless error where the jury was instructed that the offense of continuous sexual abuse was a general intent crime and where the court failed to instruct that some predicate acts for PC 288.5 required specific intent. The concurrence would improve CALCRIM 252 by eliminating the terms “specific intent” and “general intent”.

July 8, 2024 – People v. Morgan (1st Dist., Div. 1, A166435)

(1) Substantial evidence supported resisting officer by “use of force or violence” conviction (PC 69) when defendant pointed unloaded gun at officer and pulled the trigger; (2) follows People v. Wiley (2023) 97 Cal.App.5th 676, review granted March 12, 2024, S283326, in holding PC 1170(b)(3) does not require jury to determine “unsatisfactory” past probation performance or “numerous” prior convictions aggravating factors; (3) trial court improperly made “dual use” of defendant’s firearm brandishing by imposing sentence for gun enhancement and also considering jury’s true finding on gun use aggravator when imposing midterm sentence after defendant presented “super mitigant” evidence under PC 1170(b)(6).

July 3, 2024 – In re B.H. (4th Dist., Div. 2, E082619)

Mother appealed the jurisdictional and dispositional findings as to her six children. The appellate court found some of the juvenile court’s jurisdictional findings (mother’s mental health, failure to protect, current risk of domestic violence) lacked the support of substantial evidence, requiring reversal of the jurisdictional and dispositional orders for four of the children. Otherwise, the juvenile court’s findings and orders were affirmed. The appellate court found that mother had standing to challenge the jurisdictional allegations sustained against her and father M.

July 2, 2024 – People v. Ramos (4th Dist., Div. 3, G062801)

Penal Code section 1172.6 petition properly denied at the prima facie stage where defendant  admitted at the time of the plea that he “aided/abetted, with the specific intent to kill, the attempt to kill.” The admission demonstrates as a matter of law defendant committed the necessary actus reus and had the requisite mental state for aiding and abetting liability because he had “knowledge of the direct perpetrator’s unlawful intent and his aiding was committed with an intent to assist in achieving the attempted murder.” Thus it embodies all the elements of direct aiding and abetting liability for attempted murder, which is still a valid theory of attempted murder.

July 1, 2024 – People v. Rodriguez (2nd Dist., Div. 6, B328179)

The Court of Appeal holds that appellant’s guilty plea to attempted murder waives any right to raise questions regarding the evidence and obviates the need for the prosecution come forward with evidence at his PC 1172.6 evidentiary hearing. Appellant cannot use a PC 1172.6 resentencing hearing to relitigate facts already determined either by plea, admission, or verdict. In light of appellant’s admission by plea of an intent to kill, the sole issue at the evidentiary hearing was whether he acted alone. The court could not make factual findings regarding his conduct or credibility determinations regarding his intent.

July 1, 2024 – Needham v. Superior Court (S276395)

SVP Act (WIC 6600 et seq.) does not authorize retained prosecution expert to compel interview or testing of the defendant prior to the commitment hearing, as only Department of State Hospital-appointed evaluators, operating under the detailed protocols of the Act, have that authority. Act does not, however, preclude prosecution expert from testifying at the commitment hearing, despite inability to personally evaluate defendant, provided the proposed testimony is otherwise admissible under the Evidence Code.

June 28, 2024 – People v. Williams (5th Dist., F085868)[Ordered depublished July 16, 2025]

The Court of Appeal holds that the record of conviction does not establish defendant’s ineligibility at the PC 1172.6 prima facie stage. The information did not establish defendant committed every element of attempted murder. His generic plea did not establish that he was convicted under any particular theory and at the time of his plea, imputed malice was a valid theory of attempted murder. The court engaged in premature judicial factfinding based on the preliminary hearing transcript and change of plea colloquy. Neither transcript conclusively established the theory of guilt and defendant made no admissions to establish he was the actual perpetrator. The dissent would find that the bare petition allegations were insufficient to overcome the record of conviction and that People v. Curiel (2023) 15 Cal.5th 433 is inapplicable in cases involving pleas and does not preclude dismissal.

June 28, 2024 – People v. Bolourchi (1st Dist., Div. 4, A167289)

The Court of Appeal holds that where a motorist is validly arrested for driving under the influence of a drug (VC 23152(f)) and refuses to cooperate in taking a blood test prior to the officer obtaining a warrant, the jury may draw an adverse inference of consciousness of guilt based on that refusal. The trial court properly instructed the jury with CALCRIM No. 2130, which states a defendant’s refusal to submit to a chemical test as required by California’s implied consent statute (VC 23612) may show consciousness of guilt.

June 28, 2024 – Molina v. Superior Court (6th Dist., H050669)

The Court of Appeal holds that requiring defendant to share a single Spanish-language interpreter with his two co-defendants at their preliminary hearing denied defendant a substantial right. An error denies the defendant a substantial right when it reasonably might have affected the outcome. Failure to provide an individual interpreter precluded defendant’s ability to meaningfully participate in a criminal proceeding and limited his ability to challenge the evidence against him.

June 28, 2024 – In re B.D. (2nd Dist., Div. 3, B327625)

The Court of Appeal reversed the WIC 300(b) jurisdictional findings stating that even assuming the evidence was sufficient to estalish mother abused prescription drugs, the record lacked substantial evidence that mother was unable to provide regular care for the children. There was no evidence that mother engaged in drug-related behavior that might put the children at risk of harm. The jursidictional findings were reversed and the disposition and all subsequent orders vacated.

June 28, 2024 – People v. Lytkowski (S.F. Co. App. Div., JAD24-02)

No substantial evidence supported reckless driving conviction where driving occurred on gated driveway of private club. Driveway was not “a highway” (VC 23013(a)) or an “offstreet parking facility” (VC 23103(b)), and no evidence presented of sign required when private roads are subject to the Vehicle Code (VC 21107.7(a)).

June 28, 2024 – People v. Gonzalez (3rd Dist., C099813)

Trial court erred in denying compassionate release (PC 1172.2) on ground the defendant posed an “unreasonable risk” of committing a future super strike, as risk assessment failed to consider defendant’s (diminished) “current physical and mental condition” (PC 1172.2(b)). Defendant also permitted to reside within 35 miles of victim, despite her objection under PC 3003(f), because statute only applies to parolees.

June 27, 2024 – People v. Gonzalez (4th Dist., Div. 1, D082058)

The trial court prejudicially abused its discretion when it solely focused on whether defendant currently poses a danger in determining whether dismissal of defendant’s firearm enhancement (PC 12022.53(d)) would endanger public safety pursuant (PC 1385(c)(2)). Although current danger is an appropriate factor to consider, the crucial part of the inquiry is consideration of defendant’s release date if the enhancement were dismissed. Additionally, for a defendant serving a lengthy indeterminate sentence, the trial court should consider that defendant’s release is contingent on the Board of Parole Hearings’ review and assessment of defendant’s dangerousness.

June 28, 2024 – People v. Cofer (6th Dist., H050122)

When a defendant is sentenced concurrently at a single hearing to resolve multiple cases, PC 2900.5 requires the trial court to apply presentence credits for all periods of actual custody toward all concurrent sentences. The Court of Appeal disagreed with its precedent in People v. Jacobs (2013) 220 Cal.App.4th 67. The fair, reasonable, and easier application of section 2900.5 is where a defendant is convicted and sentenced at the same hearing on multiple open cases, they shall receive credit for all days actually spent in presentence custody and those days should not be limited based on purely technical noncustodial status in any particular case. However, a defendant shall not receive credit for time spent in custody before the initial arrest in any given case.

June 27, 2024 – People v. Reed (1st Dist., Div. 3, A168358/A168368)

The Court of Appeal holds that appellant, who was convicted of second degree murder and paroled in 2021 to a three-year term, was not subject to PC 3000.08(h)’s mandatory remand-to-CDCR provision upon violating parole. PC 3000.08(h) applies to lifetime parolees convicted of first or second degree murder (PC 3000.1) or persons convicted of specified sex offenses (PC 3000(b)(4)). Although PC 3000.1(a)(1) provides that any inmate sentenced to first or second degree murder with a maximum life imprisonment term shall be a lifetime parolee, PC 3000.01(a), effective August 6, 2020, limited parole terms to three years for any inmate sentenced to a life term who is released on parole after July 1, 2020. PC 3000.01 was enacted after PC 3000.1, so the later conflicting enactment prevails.

June 27, 2024 – In re Harris (S272632)

The California Supreme Court held that the superior court is not limited to considering evidence that would be admissible at a criminal trial when determining whether to deny bail pursuant to section 12(b) of the California Constitution. Petitioner was arrested after DNA from a rape 30 years prior was found to match petitioner and the trial court denied bail pursuant to section 12(b). A section 12(b) determination must be guided by a duty to ensure that the evidence it considers is reliable, not merely general assertions by the prosecution regarding what the evidence is likely to show, given an arrestee’s fundamental right to pretrial liberty. In this case, the evidence supporting the trial court’s no-bail determination did not establish that the court conducted a proper evaluation of the sufficiency of the evidence of petitioner’s guilt, rather than simply presuming the truth of the charges, and remand was necessary.

June 27, 2024 – People v. Singh (5th Dist., F084642)

Defendant’s Racial Justice Act (RJA) claim was forfeited because he failed to raise the issue in the trial court. For the first time on appeal, defendant argued that his interview with police, as translated, infused the trial with implicit bias in violation of the RJA (Pen. Code, § 745), based on police references to “honor killing.” Despite AB No. 1118, which amended section 745 to authorize a defendant to raise an RJA claim on appeal, a defendant may nonetheless forfeit an RJA argument where he did not file an RJA motion in the trial court before judgment, or fails to establish an exception to the forfeiture doctrine. Defendant’s interrogation, as translated, did not infuse the trial with implicit bias in violation of his due process, equal protection, and fair trial rights.

June 27, 2024 – People v. Boyd (4th Dist., Div. 2, E081005)

The trial court lacked “fundamental jurisdiction” to hear defendant’s motion to correct error in calculating custody credits filed years after sentencing. The Court of Appeal follows People v. King (2022) 77 Cal.App.5th 629 in holding that an unauthorized sentence does not create trial court jurisdiction to correct the error, disagreeing with People v. Codinha (2023) 92 Cal.App.5th 976. Further, a sentence unauthorized in one respect (custody credits) does not require vacating the entire sentence or justify a full resentencing.

June 24, 2024 – People v. Ackerman (4th Dist., Div. 1, D082208)

The Court of Appeal declines to part ways with People v. Lewis (1993) 21 Cal.App.4th 243 and holds that the trial court may impose a great bodily injury enhancement (PC 12022.7) when the defendant is convicted of attempted voluntary manslaughter (PC 664, 192(a)). The court concludes that the Legislature intended to prohibit great bodily injury enhancements only when great bodily injury is an element of the offense and purposefully excluded attempted felonies, including attempted manslaughter, from PC 12022.7(g).

June 24, 2024 – People v. Superior Court (Williams) (6th Dist., H051569)

The Court of Appeal holds that applying the revised penalty provisions of the Three Strikes Reform Act to reduce a defendant’s indeterminate life term to a determinate term when the defendant is being resentenced under PC 1172.75 due to an invalid prior prison term enhancement unconstitutionally amends the resentencing procedure and requirements set forth in PC 1170.126 of the voter-approved Three Strikes Reform Act. The concurring/dissenting opinion agrees that appellant’s application of PC 1172.75 would constitute an impermissible amendment to the Three Strikes Reform Act, but that a reasonable construction of PC 1172.75 and PC 1170.126 harmonizes both statutes while preserving the voters’ intent to protect public safety.

June 21, 2024 – TRC Operating Co. v. Chevron (5th Dist., F083724)

June 21, 2024 – People v. Morales (1st Dist., Div. 2, A166731)

The Court of Appeal affirmed the denial of defendant’s PC 1172.6 petition at the prima facie stage where the jury verdicts reflected the jury’s factual findings that defendant was the person who shot the victim during a robbery.  The jury verdicts established all the factual findings necessary to support an attempted murder conviction under current law.

June 21, 2024 – Erlinger v. United States (No. 23-370)

The Sixth Amendment requires jury determination by proof beyond a reasonable doubt of a sentencing allegation that a defendant’s prior offenses were “committed on separate occasions.”  In so holding, the Supreme Court emphasizes the narrowness of the “fact of a prior conviction” exception to the basic Sixth Amendment/Apprendi right to jury determination of sentencing enhancements. That exception was recognized in Almendarez-Torres v. United States (1998) 523 U.S. 224. However, the Erlinger majority characterizes Almendarez-Torres as an “outlier” and strictly limits its “narrow exception” to “the fact of a prior conviction and the then-existing elements of that offense.” Because the “committed on separate occasions” inquiry required additional determinations concerning the conduct underlying the prior convictions, it fell outside Almendarez-Torres’s “narrow exception” to the Sixth Amendment jury trial right. Erlinger v. United States has major implications for unresolved issues surrounding determination of aggravating factors related to a defendant’s criminal history under California’s Determinate Sentencing Law, such as unsatisfactory performance on probation or parole or convictions of “increasing seriousness.”  Those issues are currently pending before the California Supreme Court in People v. Wiley, S283326.

June 21, 2024 – Smith v. Arizona (No. 22-899)

U.S. Supreme Court rejects fiction that an expert witness’s recitation of the findings of a non-testifying lab analyst comes in only for the “basis” of the testifying expert’s opinion, rather than for the truth of those underlying facts.  “When an expert witness conveys an absent analyst’s statements in support of his opinion, and the statements provide that support only if true, then the statements come into evidence for their truth.”  “[I]f those statements are testimonial too … the Confrontation Clause will bar their admission.” This holding roughly parallels the California Supreme Court’s opinion in People v. Sanchez (2016) 63 Cal.4^th 665.

June 21, 2024 – United States v. Rahimi (No. 22-915)

In an 8-1 decision the Supreme Court upholds a federal law prohibiting individuals subject to a domestic violence restraining order from possessing firearms.  The analysis of a law burdening the Second Amendment right must consider “whether the new law is ‘relevantly similar’ to laws that our tradition is understood to permit, applying faithfully the balance struck by the founding generation to modern circumstances.”  Because “firearm laws have included provisions preventing individuals who threaten physical harm to others from misusing firearms,” the law is valid and need not be a “historical twin” to pass constitutional muster.

June 20, 2024 – People v. Meno (4th Dist., Div. 1, D081878)

DUI causing injury is a necessarily included lesser offense of vehicular manslaughter while intoxicated, but carries a longer potential punishment.  Where the necessarily included “lesser” offense carries a longer potential punishment, the trial court is not required to vacate itm and instead may vacate the “greater” offense in order to impose punishment on the lesser offense.  The Court of Appeal disagrees with People v. Binkerd (2007) 155 Cal.App.4th 1143 that allowing a trial court to sentence on the lesser included offense of DUI causing injury circumvents the Legislature’s scheme for punishing vehicular manslaughter.

June 20, 2024 – People v. K.M. (1st Dist., Div. 3, A168834)

June 17, 2024 – People v. Nadey (S087560)

The trial court did not err in rejecting defendant’s Batson/Wheeler claims where substantial evidence supports the trial court’s ruling that each of the five Black female jurors was excused for permissible reasons, including hesitancy about imposing the death penalty.  The court also rejected claims of error and prosecutorial misconduct regarding testimony and argument about a defense retained DNA expert who was not called as a witness; confrontation claims related to a pathologist who did not conduct the autopsy report but related the findings to the jury; and claims that the trial court did not adequately investigate juror misconduct related to a juror sharing another juror’s poem with other members of the jury. The court also rejected defendant’s claim that the prosecutor committed misconduct by using derogatory epithets to refer to defendant during the penalty phase closing argument displaying two publications on Nazi party symbols during closing argument.  Justice Liu dissented, disagreeing with the majority opinion’s application of Batson and its analysis of the prosecutor’s use of epithets.

June 14, 2024 – People v. Estrada (San Diego Co. App. Div., JAD24-06)

The San Diego Appellate Court found that the decision in People v. Duenas (2019) 30 Cal.App.5^th 1157 does not apply to Domestic Violence Fund fines (PC 1203.097) because the Duenas court did not address this fine. The Court, noting Duenas is not settled law, agrees with the appellate court cases holding that Duenas was incorrectly decided as to restitution fines (PC 1202.4), thus trial court’s need not find an ability to pay before imposing that fine.  However, the Court finds Duenas was correctly decided on equal protection grounds as to the non-punitive criminal assessment fees (GC 70373) and court operation fees (PC 1465.8), thus court’s must hold an ability to pay hearing before imposing those assessments.

June 12, 2024 – In re Jose R. (2nd Dist., Div. 7, B326712)

The juvenile court did not err in applying pre-disposition custody credits to the maximum term of confinement instead of the baseline term because WIC 875(c)(1)(C) clearly provides, “Precommitment credits for time served must be applied against the maximum term of confinement as set pursuant to this subdivision.”  The application of precommitment custody credits to the maximum term of confinement instead of the baseline term does not violate equal protection.

June 11, 2024 – In re Andrew M. (4th Dist., Div. 3, G063462)

Minor appealed the juvenile court’s order finding the beneficial relationship exception applied at the WIC 366.26 hearing. The Court of Appeal reversed finding that the juvenile court’s analysis of the third element of the exception was conclusory.  The record did not support a conclusion that the parents’ relationship with the minor was so important as to outweigh the benefits of adoption. In addition, the juvenile court relied on an improper factor when it considered the minor’s relationship with other family members.

June 10, 2024 – People v. Foster (Orange Co. App. Div., JAD24-01)

Defense PC 1465.9 motion to strike statutory interest added to victim restitution award (PC 1202.4(f)(3)(G)) properly denied. PC 1465.9 text and legislative history (AB 1869) make clear that its prohibition on collecting “court-imposed costs” under numerous statutes, including PC 1202.4, refers to “the cost of administering the criminal justice system” and does not extend to victim restitution awards.

June 10, 2024 – People v. Graham (3rd Dist., C097971)

A trial court may consider trial transcripts from the current case when on remand for a “pretrial” mental health diversion hearing under PC 1001.36.   Additionally, the trial court did not abuse its discretion in basing its PC 1001.36(c)(4) determination on the serious and violent nature of defendant’s current crimes. A defendant is not suitable for diversion if the defendant is “too dangerous to be treated in the community because he [or she] would commit a new violent super strike.” Section 1001.36 grants broad discretion to the court to consider any factors it deems appropriate when assessing dangerousness, and it expressly includes “the defendant’s violence and criminal history” and “the current charged offense” among the permissible factors.

June 7, 2024 – In re A.F. (1st Dist., Div. 3, A168850)

The appellate court affirmed the jurisdictional and dispositional findings. When determining whether to exercise jurisdiction under section 300, the court finds there was no basis to distinguish between alleged, presumed, or biological parents. In addition, substantial evidence supported the juvenile court’s declaration of dependency. With respect to disposition, the court was authorized to require a nonoffending parent to comply with orders pertaining to the child once the court has accepted jurisdiction.

June 6, 2024 – People v. Gefrerer (4th Dist., Div. 1, D082223)

Defendant twice entered a bank, passed the teller a note stating “Give me $5000. Don’t play,” and departed with money after the terrified teller complied. Robbery convictions affirmed where no substantial evidence supported lesser-included theft instruction. Even had such evidence been present, invited error doctrine also precluded relief when trial counsel agreed lesser instruction was inconsistent with identify defense and in closing argument conceded two robberies occurred.

June 5, 2024 – People v. Fish (1st Dist., Div. 4, A168087/A168088)

The Court of Appeal holds that the trial court’s failure to expressly instruct the jury that the unanimity instruction applied to the lesser included offense—and not just the charged offense—was harmless error under Chapman. The record did not provide a rational basis for the jury to have distinguished between the two acts offered in support of the lesser included offense. The court emphasizes that trial courts should expressly instruct the jury that the unanimity requirement applies both to the charged offense and any lesser included offenses when a guilty finding may rest on more than one act.

June 5, 2024 – People v. Rounds (4th Dist., Div. 3, G063593)

Trial court abused its discretion in denying defendant’s certificate of rehabilitation petition (PC 4852.01 et seq) by relying “almost entirely” on two statutorily impermissible factors: the details of the underlying crime and the unfairness to the victims and their families of granting petition. Further, whether defendant has admitted culpability for the crime is a proper statutory consideration, but trial court improperly cited defendant’s plea to a reduced charge as evidence he failed to accept responsibility.

June 4, 2024 – People v. Mayberry (5th Dist., F085869)

The Court of Appeal holds that PC 1172.75 applies to stayed prior prison term enhancements, disagreeing with People v. Rhodius (2023) 97 Cal.App.5th 38, review granted February 21, 2024, S283169. When the Legislature enacted PC 1172.75, it is presumed to have been aware of existing laws that allowed former PC 667.5 enhancements to be stayed under certain circumstances, and it did not include language that limited legal invalidity to former PC 667.5(b) enhancements that were imposed and executed.

June 3, 2024 – People v. Burgos (S274743)

Effective Jan. 1, 2022, PC 1109 requires bifurcating gang enhancements from their underlying offenses upon defense request (PC 1109(a)) and requires a separate trial for any PC 186.22(a) offense charged with a non-gang crime (PC 1109(b)).  The Court holds PC 1109 is not retroactive to cases where judgment is not yet final, as the text and legislative history do not overcome presumption that new statues apply prospectively only.  Further, as a merely “prophylactic procedural rule” modifying the “sequence” of trials, PC 1109 does not qualify under Estrada.  Concurrence notes the ever-increasing resources devoted to litigating statutory retroactivity and calls on the legislature to “plainly state whether or not the statute in question is retroactive.”

May 31, 2024 – In re A.M. (2nd Dist., Div. 6, B329999)

The Court of Appeal holds that when a minor was sentenced as an adult prior to the passage of Prop 57 and the sentence is later vacated on habeas corpus, the judgment becomes nonfinal and the defendant is entitled to retroactive application of ameliorative laws, including SB 1391 and AB 333. The minor’s case only becomes final when the criminal proceeding as a whole has ended and the courts can no longer provide a remedy on direct review. Where AB 333‘s amendments to PC 186.22‘s gang-murder special circumstance provisions applies retroactively, Chapman harmless error review is appropriate.

May 30, 2024 – Wheeler v. Appellate Division of Superior Court (S272850)

A trial court may consider a defendant’s reduced culpability in dismissing charges “in furtherance of justice” pursuant to PC 1385. The trial court dismissed the action against Wheeler, age 85, who had been charged with strict liability misdemeanors after leasing a storefront to another person who illegally sold cannabis on the property without Wheeler’s knowledge. In determining whether to dismiss a charge “in furtherance of justice,” a trial court may consider evidence indicative or guilt or innocence and the nature of a defendant’s criminal activity. This includes a defendant’s reduced level of culpability within the statutory criminal scheme, despite indications of guilt.

May 30, 2024 – Thornell v. Jones (U.S. Supreme Court, 22-982)

In reversing Ninth Circuit grant of habeas relief for penalty phase IAC in capital case, the Court disapproves three components of Ninth Circuit’s Strickland prejudice
analysis: “First, it failed adequately to take into account the weighty aggravating circumstances.” Second, the Court disapproved “a strange Circuit rule that prohibits a court in a Strickland case from assessing the relative strength of expert witness testimony.” Third, while the Ninth Circuit had faulted the district court for attaching “diminished persuasive value to Jones’s mental health
conditions,” the Supreme Court emphasized that a “‘sentencer … may determine the weight to be given to relevant mitigating evidence.’” “[W]here the aggravating factors greatly outweigh the mitigating evidence, there may be no ‘reasonable probability’ of a different result.”

May 30, 2024 – People v. Sup. Ct. (Chagolla) (4th Dist., Div. 1, D082865)

The superior court properly dismissed charges of murder and flight causing death where the defendant, intoxicated on opioids, crashed her car, which caused an obstruction in the highway.  Thirty minutes after defendant crashed, a distracted and speeding tractor trailer driver rearended a stopped vehicle roughly one and a half miles away from crash site, ultimately killing an adjacent driver.  There was insufficient evidence that unconscious or barely-conscious defendant, while in crashed car, exhibited conscious disregard for human life. The concurring opinion reaches the same result on proximate cause grounds.

May 29, 2024 – Review Grant – People v. Montgomery (S284662/A167813)

The California Supreme Court grants review, where the petition for review presented the following issue: Is the prosecution entitled to rescind a plea agreement when the defendant receives full resentencing under PC 1172.75 and the superior court intends to reduce the bargained-for sentence beyond merely striking the one-year prior prison term enhancements?

May 29, 2024 – People v. Dain (S283924/A168286)

The California Supreme Court grants review on the following issue: Did the Court of Appeal err in remanding the case with directions to reinstate the strike finding and to resentence defendant as a person who has suffered a prior strike conviction under the Three Strikes Law?

May 28, 2024 – People v. Pritchett (1st Dist., Div. 1, A168411)

The Court of Appeal holds that the good faith exception to the exclusionary rule applies where a detective was unaware AB 1950 had terminated defendant’s probation and relied on a criminal database that incorrectly indicated defendant was still on searchable probation.  While the database indicated defendant was on searchable probation, probation had actually been terminated based on the automatic application of AB 1950.  Considering the language of AB 1950 and the limited legal authority interpreting it, the court did “not expect a reasonable officer to know that AB 1950 may have terminated existing probation sentences automatically without a judicial determination.”  As a result, the good faith exception applied and the trial court erred in granting defendant’s motion to suppress.

May 23, 2024 – People v. Koontzy (1st Dist., Div. 5, A167703)

Trial court erred in ordering victim restitution after defendant’s probation for violating VC 20001(a) had expired. Court of Appeal notes it previously held (People v. McCune (2022) 81 Cal.App.5th 648, review granted Oct. 26, 2022, S276303) PC 1202.46 permits restitution order after probation expires when loss occurs “as a result of the commission of the crime” (PC 1202.4(a)(1)). Here, however, the loss was indisputably caused not by the defendant’s flight after the collision, but by the collision itself. Therefore, restitution was only authorized as condition of probation (PC 1203.1), and PC 1202.46 does not apply to PC 1203.1 restitution orders.

May 22, 2024 – People v. Herrera (1st Dist., Div. 1, A165248)

The Court of Appeal holds that no juror misconduct occurred where the deliberating jurors watched surveillance video clips back-to-back on a loop and in slow motion. There was no evidence the jurors performed any editing, and viewing the videos in slow motion allowed for closer scrutiny. The court also finds no prejudicial juror misconduct occurred where a juror agreed to vote for guilt in exchange for the other jurors agreeing to sign a “we urge leniency” note. While consideration of punishment was improper, there was no prejudice because the juror believed the defendant was guilty when she asked for the leniency note.

May 20, 2024 – People v. Carter (S278262)

The Court of Appeal holds that the trial court abused its discretion in denying appellant’s Marsden motion without an adequate inquiry and further deprived him of effective assistance of counsel by failing to appoint substitute counsel to evaluate his motion to dismiss. The trial court erred in conducting an insufficient Marsden inquiry and in instructing appellant to file his motion to dismiss pro se. The trial court should have considered Carter’s Marsden motion in the context of the proposed motion to dismiss: not simply determining whether current counsel had “done her job” up to that point, but also whether a conflict of interest would have prevented her from effectively investigating and potentially litigating Carter’s motion to dismiss.

May 15, 2024 – People v. Ellis (2nd Dist., B325433) [Ordered depublished July 31, 2024]

Trial court struck two PC 667.5(b) priors at PC 1172.75 resentencing. Defendant argued on appeal he did not receive “full resentencing” because trial court did not resentence to middle term as generally required under amended PC 1170(b) (SB 567). Court and parties had not “expressly” mentioned SB 567 at resentencing, and original sentence was a stipulated one. Court of Appeal affirms, holding, among eight grounds for denying relief, that PC 1172.75(d)(4) precludes middle term resentencing when original sentence imposed upper term.

May 10, 2024 – People v. Arias (1st Dist., Div. 1, A164789)

The Court of Appeal reverses for a Batson/Wheeler violation where the prosecutor’s reasons for striking a Black prospective juror did not withstand scrutiny and where the trial court’s investigation of the reasons given was “cursory.”  The reasons given were that the jury would empathize more with defense experts because educational background was similar; this was not supported by the record.  The juror also had concerns about implicit bias and unfairness; that reason did not justify the strike.  The last reason was that the juror was opinionated, which was unlikely to have motivated the strike because it was not applied to other potential jurors.

May 9, 2024 – United States v. Duarte (9th Cir., 22-50048)

Applying New York State Rifle & Pistol Ass’n v. Bruen (2002) 597 U.S. 1, a divided Ninth Circuit panel holds that federal felon-with-firearm prohibition violates Second Amendment as applied to handgun possession (in a vehicle) by “a non-violent offender who has served his time in prison and reentered society.” Duarte had “five prior non-violent” California felony convictions, including  two convictions of evading an officer with “willful or wanton disregard for the safety or persons or property” (VC 2800.2).  Note: Because there will likely be a petition for rehearing en banc, counsel should be certain to verify the current status of Duarte before relying on it.

May 7, 2024 – In re D.M. (4th Dist., Div. 2, E082401)

In an appeal from the termination of parental rights, the appellate court agreed with the holding of In re Robert F. (2023) 90 Cal.App.5th 497, rev. granted, S279753, that the duty to inquire of extended family members under WIC 224.2(b) is triggered only if the child was taken into temporary custody without a warrant. The court stated that it published the opinion to explain why it continued to be unpersuaded by the reasoning of In re Delia D. (2023) 93 Cal.App.5th 953, rev. granted, S281447. Justice Raphael dissented arguing that there was only one duty of initial inquiry no matter how the child was initially removed from the home.

May 6, 2024 – In re Kieran S. (2nd Dist., Div. 7, B318672)

The Supreme Court granted review of the appellate court’s prior opinion and transferred the case back with directions to reconsider the evidence in light of In re N.R. (2023) 15 Cal.5th 520. The appellate court again affirmed the jurisdictional and dispositonal orders. Substantial evidence supported the juvenile court’s finding that mother’s drug use created a substantial risk of harm due to mother’s positive drug tests, the child’s age, and mother’s denial that she used methamphetamine. Furthermore, absconding with the child frustrated the purpose of dependency proceedings and increased the likelihood of harm.

May 3, 2024 – H.A. v. Sup. Ct of San Joaquin County (Div. 3, C099704)

The appellate court agreed with petitioner that the Department did not make an adequate inquiry of the parents’ relatives as required under the ICWA and WIC 224.2. In addition, because of the “inordinate number of cases arguing inadequacy of the ICWA inquiry,” the opinion set forth the expected obligations of the attorneys, juvenile court, and Department with respect to ICWA compliance.

May 2, 2024 – People v. Patton (5th Dist., F085895)

The Court of Appeal holds that any sentence violating PC 288.5(c)—imposing punishments for a violation of PC 288.5 overlapping with discrete sexual offenses—is unlawful. The court finds that a defendant cannot forfeit a challenge to those convictions by failing to demur to the underlying pleading, disagreeing with Third District Court of Appeal in People v. Goldman (2014) 225 Cal.App.4th 950. The remedy is to uphold whichever conviction[s] resulted in the greater aggregate penalty and vacating the less serious count[s].

May 1, 2024 – People v. Coleman (S283717, A165198)

The California Supreme Court denies review, but Justices Evans and Liu issue a concurring statement addressing the proper inquiry under the RJA when a defendant alleges discrimination by their attorney.  A trial court has a duty to inquire into a defendant’s allegations, including by holding an evidentiary hearing.

Apr. 29, 2024 – People v. Fay (2nd Dist., Div. 1, B328209)

The Court of Appeal reverses the 2nd degree murder conviction where the prosecutor misstated the law regarding the mental state required for implied malice.  The prosecutor incorrectly told the jury that the mental state element was met if the defendant did not care if someone is “hurt or killed,” which is inconsistent with the requirement that a defendant act with conscious disregard for human life.

Apr. 23, 2024 – People v. Cunningham (2nd Dist., Div. 6, B323640) [Ordered depublished June 25, 2025]

The Court of Appeal holds that PC 1172.6 does not provide relief for defendants convicted of provocative act murder. The court rejects defendant’s argument that “provocative murder” is tantamount to the “natural and probable consequences” doctrine. The Legislature failed to mention provocative murder when it changed the statutory murder definitions. The court invites the Supreme Court to grant review here, as it did recently in People v. Gonzales (2023) 93 Cal.App.5th 712, review granted Oct. 18, 2023, S281599, where the same appellate court held that the provocative murder doctrine survived the recent legislative enactments.

Apr. 22, 2024 – People v. Lezama (4th Dist., Div. 3, G062075)

The Court of Appeal holds that persons who pled guilty to manslaughter after statutory amendments eliminated imputed malice theories of murder liability are not eligible for resentencing under PC 1172.6. Such defendants cannot meet the third criteria of PC 1172.6(a)(3) (“[t]he petitioner could not presently be convicted of murder or attempted murder because of changes to Section 188 or 189 made effective January 1, 2019”) because their convictions could not have been entered through an imputed malice theory.

Apr. 22, 2024 – Ruelas v. County of Alameda (Supreme Ct., S277120A)

The Supreme Court holds that nonconvicted incarcerated individuals performing services in county jails for a for-profit company to supply meals within the county jails and related custody facilities do not have a claim for minimum wages and overtime under LC 1194, even in the absence of a local ordinance prescribing or prohibiting the payment of wages for these individuals. The Court invites the Legislature to adjust its approach to the payment of wages or wage credits if it sees fit.

Apr. 16, 2024 – In re Taylor C. (1st Dist., Div. 3, A168282)

The Court of Appeal holds that the juvenile court did not err by denying appellant’s motion to seal his juvenile records relating to his forcible lewd conduct offenses (PC 288(b)(1)), because the dismissal of a juvenile petition under WIC 782 does not obviate the prohibition on sealing records under WIC 781(a)(1)(F) in cases involving certain sex offenses.

Apr. 16, 2024 – People v. Barooshian (4th Dist., Div. 1, D081050)

The Court of Appeal holds that double jeopardy principles are not violated where defendant was convicted of a Watson murder by a second jury after the previous jury hung on the charge but convicted him of gross vehicular manslaughter while intoxicated. The court rejects defendant’s proposed new test for double jeopardy, declining to treat gross vehicular manslaughter while intoxicated as a necessarily included offense of Watson murder when it does not qualify under the elements test and is instead a lesser related offense.

Apr. 15, 2024 – People v. Flores (4th Dist., Div. 1, D083310)

The Court of Appeal holds that a child victim’s delay in disclosing sexual abuse does not affect the admissibility of the disclosure and should instead be considered by the trier of fact as one factor in evaluating its weight. The court notes that disclosure evidence is still subject to EC 352 and there may be rare cases where timing and circumstances render disclosure unduly prejudicial even if relevant. The court follows the lead of other jurisdictions and encourages abandonment of the term “fresh complaint,” suggesting it now be called the “prior disclosure” doctrine.

Apr. 10, 2024 – People v. Lewis (4th Dist., Div. 4, E082085)

The Court of Appeal reverses order denying the CDCR’s compassionate release petition to recall defendant’s sentence under PC 1172.2. The trial court’s finding that defendant posed an unreasonable risk of danger to public safety by committing a super strike offense was not supported by substantial evidence. Given the rapid progressivity defendant’s ALS and his physical weakness, a doctor testified there was no way he could harm anyone and he would likely die within months. Mere capacity to speak and thus be able to solicit or aid/abet a homicide offense has no tendency to prove likelihood or unreasonable risk he will actually do so.

Apr. 10, 2024 – People v. Lozano (1st Dist., Div. 3, A165646)

The Court of Appeal holds that the trial court prejudicially abused its discretion by admitting the alleged victim’s statement as a spontaneous statement. The teenager told her mother that defendant began molesting her five years prior. Absent a link to a recent startling event, evidence that the declarant was highly emotional or under stress while recounting a traumatic event is not enough to make the statement admissible. The Court notes that there may be other circumstances where disclosure of longstanding or ongoing abuse could be treated as a spontaneous statement.

Apr. 5, 2024 – People v. Uriostegui (2nd Dist., Div. 6, B325200)

The Court of Appeal holds that removing a juror based on lack of employment or demeanor violates CCP 231.7. The trial court failed to make a finding that the juror’s employment status affected her ability to be fair and impartial.

Apr. 5, 2024 – Mosley v. Superior Court (3rd Dist., C099530)

Appellant sought review of the denial of his motion to suppress the fruits of the successive search of his car and person. The Court of Appeal holds that the trial court erred by finding the warrantless searches were supported by probable cause and reasonable suspicion, and the detention was unlawfully prolonged.

Apr. 10, 2024 – People v. Rafael B.D.R. (1st Dist., Div. 3, A167246)

The Court of Appeal vacates the judgment, finding the trial court prejudicially erred when denying defendant’s new trial motion without first holding an evidentiary hearing to assess the new evidence. Defendant presented a declaration that the prosecution’s young witnesses were coached to lie, undermining their credibility. The declaration contradicted the strongest evidence against defendant and the trial court failed to properly evaluate the credibility and force of the evidence. Trial counsel could not be blamed for lack of diligence in failing to discover the ruse earlier.

Apr. 9, 2024 – People v. Estrada (2nd Dist., Div. 8, B324576)

The Court of Appeal reverses the order denying defendant’s PC 1172.6 petition for resentencing at the prima facie stage.  Defendant’s pleas to the generic charge of attempted murder without the “willful, deliberate, and premeditated” allegation and to the generic charge of voluntary manslaughter do not render him ineligible for relief. Bare admission of enhancements for personal use of a deadly weapon and great bodily injury do not establish intent to kill or refute that he was convicted on a theory of implied malice. Reliance on the preliminary hearing transcript was improper because it required the trial court to engage in impermissible fact finding.

Apr. 8, 2024 – Dilbert v. Newsom (3rd Dist., C096274)

The Court of Appeal holds that petitioners filing clemency or commutation applications/reapplications have neither a federal nor California due process right to have those applications processed within a particular time frame. Nor does the Governor have a duty to process clemency applications within a particular time frame under section 8 of article V of the California Constitution or any provision of PC 4800 through 4813. Furthermore, the clemency application instructions do not create an obligation for the Governor to act within a specified time frame.

Apr. 3, 2024 – People v. Brown (4th Dist., Div. 1, D081445)

The Court of Appeal remands for reconsideration of defendant’s eligibility for mental health diversion under PC 1001.36. Defendant’s pretrial PC 1001.36 motion was denied and he did not bring a motion to reconsider at sentencing, which was just days after ameliorative amendments to PC 1001.36 became effective. Recent ameliorative amendments to PC 1001.36 are retroactive and defendant did not forfeit his right to assert retroactivity. The Court of Appeal notes that the forfeiture rule does not apply to a right derived from “recent, unanticipated changes to the law.”

Apr. 4, 2024 – People v. Gray (5th Dist., F085699)

The Court of Appeal holds that the trial court lacked jurisdiction to hear appellant’s petition to reduce his maximum time of commitment as NGI, where the original calculation of the commitment term included several years for now-invalid prison priors, because PC 1172.75 does not apply to NGI acquittees.  The Court of Appeal also holds that the People’s appeal was permissible under PC 1238(a)(5), as the trial court’s reduction of the commitment term was an order made after judgment.

Mar. 29, 2024 – People v. Ayala (4th Dist., Div. 1, D082754)

The Court of Appeal reverses the defendants’ first degree murder convictions and the attached special circumstance allegations, holding that the trial court prejudicially erred by admitting a missing key witness’s preliminary hearing testimony at the jury trial. The prosecution had months to search for the witness but waited until two weeks prior to trial to locate her, thereby failing to demonstrate reasonable diligence in securing her presence at trial.

Mar. 28, 2024 – In re S.G. (2nd. Dist., Div. 3, B330106)

The court affirms the denial of mother’s WIC 388 petition and the termination of her parental rights.  Relying on California Supreme Court precedent, the court finds that the application of sections 388 and 366.26 to a teenage parent was not a violation of the parent’s substantive due process rights. The court notes that a parent’s youth does not change or lessen the child’s need for permanency and stability.

Mar. 28, 2024 – People v. Serrano (1st Dist., Div. 5, A166011)

The Court of Appeal holds that substantial evidence supports a jury’s findings of premeditated and deliberate attempted murder where appellant engaged in a shootout with police immediately after crashing a stolen vehicle in a busy intersection. The Court further holds that PC 1385(c) does not authorize a trial court to dismiss a jury’s premeditation and deliberation findings because they are not enhancements.

Mar. 27, 2024 – People v. McClelland (4th Dist., Div. 1, D081369)

The Court of Appeal holds that appellant’s claim that his due process rights were violated by his absence from an evidentiary hearing on his PC 1172.6 resentencing petition fails because he was present for the main evidentiary hearing.  The “hearing” for which he was not present was the day the written order was issued; no evidence was presented.

Mar. 25, 2024 – People v. Hill (2nd Dist., Div. 2, B322561)

The Court of Appeal holds that appellants are not eligible for PC 1172.6 relief based on a kidnapping-felony-murder theory. The Court reasons that retroactively applying PC 189(a), which includes kidnapping as an enumerated felony on which a conviction for felony murder can be based, did not violate ex post facto principles. Additionally, the Court finds that substantial evidence supports the findings that appellant Hill had the intent to kill when his fired his gun at a victim that survived, and that both appellants were major participants in the kidnappings that resulted in one person’s death and acted with reckless indifference to human life.

Mar. 22, 2024 – People v. Morris (4th Dist., Div. 3, G061916)

The Court of Appeal holds that the defendant was not eligible for resentencing under PC 1172.6 as a matter of law because the jury instructions and verdict established that he had the intent to kill during the commission of the underlying felony and directly aided the actual killer in committing those offenses.  The actus reus required for nonkillers who act with the intent to kill is “simply aiding the underlying felony in which a qualifying death occurs.”  The dissent would find that the unambiguous language of PC 189(e)(2) requiring proof that a nonkiller abet first degree murder requires proof that the nonkiller abet the commission of the murder, not merely the underlying felony.

Mar. 20, 2024 – Conservatorship of K.Y. (1st Dist., Div. 5, A166825)

The Court of Appeal dismisses as moot the appeal of an order establishing an LPS conservatorship.  In the published portion of the opinion, the court discusses the recurring problem of mootness in LPS appeals and suggests that counsel take steps to ensure the appeal progresses and that the JCC change or clarify the extension of time request form that so that the court may consider the conservatorship termination date when ruling on EOTs.

Mar. 18, 2024 – In re Ca.M. (2nd Dist., Div. 5, B326320)

On appeal from jurisdiction and disposition, mother challenged the sufficiency of the evidence for only one of the several jurisdictional findings made against her. Following the decision in In re I.J. (2013) 56 Cal.4th 766, the court found that because substantial evidence supported the other jurisdictional findings, it declined to address mother’s challenge to one specific finding.

Mar. 18, 2024 – F.K. v. Sup. Ct. (2nd Dist., Div. 6, B333788)

In a writ proceeding filed in propria persona, the appellate court finds that the juvenile court abused its discretion when it terminated mother’s reunfication services at the six-month review hearing. At the six-month review, the juvenile court should weigh evidence pertaining to the factors identified in WIC 366.21(g)(1), along with any other relevant evidence in considering whether there is substantial evidence of possible return to the parent by the twelve-month date.

Mar. 15, 2024 – Gomez v. Superior Court (4th Dist., Div. 3, G062526)

The Court of Appeal holds that defendant’s peremptory challenge under CCP 170.6 was untimely where, in PC 1172.6 resentencing proceedings, he attempted to challenge the judge who took his original guilty plea.  The court holds that PC 1172.6 resentencing proceedings involve substantially the same issues as the original case, and so the 1172.6 proceeding was a continuation of the plea hearing; thus, the defendant was not allowed to challenge the judge under CCP 170.6.

Mar. 15, 2024 – People v. Montgomery (1st Dist., Div. 3, A167813)

The Court of Appeal holds that appellant was entitled to a full resentencing hearing after SB 483 invalidated his prison priors. The Court further holds that, upon resentencing, the prosecutor is not permitted to rescind appellant’s plea agreement due to any sentencing reduction beyond just dismissing the prison priors.

Mar. 15, 2024 – People v. Jackson (2nd Dist., Div. 8, B328954)

The Court of Appeal reverses the denial of appellant’s motion to suppress, finding  that police officers detained appellant when they pulled their car within a few feet of appellant’s driver’s side door (close enough so appellant would have to squeeze to get out), surrounded his car in dark, and aimed two flashlights on him. The Court further holds that the detention was invalid because the officers stated observations – that appellant was wearing a “big bulky jacket” on a hot and humid night, looked nervous when officers shined flashlights on him, and was seated awkwardly in is car – did not suggest criminal activity was afoot.

Mar. 12, 2024 – Review Grant – People v. Wiley (S283326, A165613)

“This case presents the following issue: Did the sentencing court’s consideration of circumstances in aggravation based on certified records of prior convictions, beyond the bare fact of the convictions, violate Penal Code section 1170, subdivision (b)(3) or defendant’s Sixth Amendment right to a jury trial?”

Mar. 12, 2024 – Review Grant – People v. Superior Court (Guevara) (S283305, B329457)

“This case presents the following issue: Do the revised penalty provisions of the Three Strikes Reform Act of 2012 (Pen. Code, § 1170.12) apply when a defendant is resentenced pursuant to Senate Bill No. 483 (Pen. Code, § 1172.75)?”

Mar. 12, 2024 – People v. Barner (3rd Dist., C095986)

The Court of Appeal holds that the Three Strikes law applies to the calculation of the maximum term of commitment for an individual civilly committed as NGI because PC 1026.5 requires the trial court to consider the “longest term of imprisonment which could have been imposed” and because PC 1170.127, which extended the benefits of Prop 36 to NGIs, is an acknowledgement that the Three Strikes law applies in the NGI context.  Where the NGI had two prior strikes, the maximum term of commitment was life because the maximum term of imprisonment for a third strike offense is life.  “Section 1026.5 contemplates a simple arithmetic calculation with no exercise of discretion.”  The court rejects arguments raised by appellant based on the wording of PC 667.

Mar. 11, 2024 – In re Seumanu (1st Dist., Div. 4, A169146)

The Court of Appeal issues a certificate of appealability as to one of petitioner’s habeas corpus claims in this capital case where a habeas petition was filed in the superior court in order to exhaust state remedies.  The court interprets PC 1509.1(c) to (1) set no mandatory time limit on certificate of appealability requests, (2)  “substantial claim to relief” under PC 1509.1(c) requires a showing strong enough for reasonable jurists to debate whether the trial court erred, and (3) as-applied attacks on the constitutionality of PC 1509(d) are appealable under PC 1509.1(c).

Mar 7, 2024 – In re P.L. (4th Dist., Div. 1, D08723, D082853)

The appellate court finds that father forfeited any challenge to the visitation orders because no objection was made in the trial court. Assuming the issue was not forfeited, the court found that the juvenile court did not abuse its discretion when it allowed the children to decline visitation with father.

Mar. 5, 2024 – In re J.S. (3rd Dist., C099115)

The Court of Appeal holds that WIC 786, which provides for dismissal of a juvenile petition and sealing of juvenile records after the youth “satisfactorily completes” a term of probation, does not preclude relief simply because the youth had a new wardship finding during the probation period. Instead, the statute precludes relief only where the finding was due to a felony or misdemeanor involving moral turpitude. If the finding was for a misdemeanor that did not involve moral turpitude, the juvenile court must determine whether the youth satisfactorily completed probation by substantially complying with the conditions of probation.

Mar. 5, 2024 – In re F.V. (2nd Dist., Div. 1, B329192)

The Court of Appeal reverses the jurisdictional and dispositional findings and orders. The juvenile court asserted jurisdiction based on the parents sending the child into the U.S. alone without a plan for her care. However, there was no evidence that the harm the child suffered following her entry into the U.S. would occur. The court finds that jurisdiction is proper only upon a substantial risk of future harm.

Mar. 5, 2024 – People v. Superior Court (Farley) (1st Dist., Div. 4, A168018)

Upon finding that the People did not present sufficient evidence at preliminary hearing that defendant’s alleged gang was “organized” within the meaning of PC 186.22(f) as amended by AB 333, the superior court issued an order partially granting defendant’s PC 995 motion and dismissing all gang-related charges. The Court of Appeal grants the People’s petition for writ of mandate and directs the superior court to vacate its order. The Court of Appeal “ha[s] no difficulty concluding there is sufficient evidence that [the alleged gang] is organized within the meaning of PC 186.22(f) to allow the prosecution to proceed.”

Mar. 5, 2024 – People v. Killian (6th Dist., H050320)

At trial, defendant was convicted of receiving a stolen vehicle (PC 496d) and VIN tampering (VC 10802), and the evidence indicated that defendant used the VIN plate of his own vehicle to cover up the VIN plate of the stolen vehicle. The Court of Appeal affirms the VIN tampering conviction. The court holds that VC 10802 “may be violated by tampering with a single VIN,” and that the statute’s requirement that the tampering occur “for the purpose of sale or transfer” is satisfied where the tampering was committed with the “inten[t] to prevent the identification of the … vehicle” and for the “purpose of facilitating a conveyance of the … vehicle.”

Mar. 4, 2024 – People v. Hardin (Supreme Ct., S277487)

Mar. 1, 2024 – In re Miguel R. (4th Dist., Div. 2, E082250)

In an appeal from a juvenile court’s transfer order (WIC 707) that was issued after the enactment of AB 2361 but before the enactment of SB 545, the Court of Appeal affirms the order, finding that the juvenile court did not abuse its discretion under the amendments made by AB 2361 and would not have reached a more favorable decision under the amendments made by SB 545.

Mar. 1, 2024 – People v. Robinson (1st Dist., Div. 4, A165379)

In an appeal from a guilty plea, defendant claimed that his trial counsel provided ineffective assistance by failing to request mental health diversion (PC 1001.36). The Court of Appeal rejects the claim for failure to obtain a certificate of probable cause. The court reasons that because a defendant cannot be placed on mental health diversion after being convicted (People v. Braden (2023) 14 Cal.5th 791), defendant’s claim necessarily attacks the validity of the plea and thus requires a certificate of probable cause.

Mar. 1, 2024 – Lunsted v. Superior Court (4th Dist., Div. 2, E081770)

Defendant filed a petition for writ of mandate asking the Court of Appeal to compel the trial court to grant his motion to quash the People’s subpoena seeking his c-file from CDCR, which the People requested in connection with defendant’s PC 1172.6 proceedings. Defendant argued that the trial court abused its discretion by failing to apply the factors set out in Facebook v. Superior Court (2020) 10 Cal.5th 329 to determine whether the People made a sufficient showing of good cause. The Court of Appeal agrees and remands with directions to reconsider the motion to quash “under the correct legal standard.”

Feb. 28, 2024 – Persiani v. Superior Court (4th Dist., Div. 3, G062648)

PC 1370.01(b)(1)(A) provides that an incompetent misdemeanor defendant may be placed on mental health diversion (PC 1001.36). The Court of Appeal holds that an incompetent misdemeanor defendant charged with driving under the influence may be placed on mental health diversion pursuant to PC 1370.01(b)(1)(A), notwithstanding VC 23640. The court distinguishes the recent line of cases holding that a competent misdemeanor defendant charged with driving under the influence may not be placed on diversion in light of VC 26340.

Feb. 28, 2024 – People v. Hollywood (2nd Dist., Div. 6, B323018)

The Court of Appeal affirms the prima facie denial of appellant’s PC 1172.6 petition, where appellant was convicted of special circumstance murder and found to have acted with the intent to kill in committing the underlying kidnapping, and the PC 1172.6 petition and trial were overseen by the same judge. The Court of Appeal relies in part on the facts, stating that there “must … be an exception” to the prohibition on factfinding at the prima facie stage where the PC 1172.6 judge “heard the evidence at a death penalty trial and where the Supreme Court recites these facts in the same case. (Hollywood v. Superior Court (2008) 43 Cal.4th 721.)”

Note: The concurring opinion concurs in in the judgment but “respectfully depart[s] from the majority opinion to the extent it endorses factfinding at the prima facie stage in this case.”

Feb. 27, 2024 – People v. Robinson (4th Dist., Div. 3, G063090)

In an appeal following a domestic violence jury trial, the Court of Appeal affirms the trial court’s decision to allow the prosecution to present evidence of defendant’s prior domestic violence conviction under EC 1109 by presenting a certified record of conviction rather than live testimony from the prior victim. The court also rejects defendant’s argument that the trial court’s decision was an abuse of discretion under EC 352.

Feb. 27, 2024 – People v. Lopez (5th Dist., F086179)

In 1995, appellant was convicted of murder based on his assistance of a co-d in committing a shooting during which the intended victim survived but an unintended victim was killed. Following an evidentiary hearing on appellant’s PC 1172.6 petition, the trial court denied the petition upon finding that appellant intended to kill the intended victim in aiding and abetting the co-d, and thus impliedly finding that appellant was guilty under the doctrine of transferred intent. The Court of Appeal affirms, rejecting appellant’s argument that SB 1437 abrogated the doctrine of transferred intent.

Feb. 27, 2024 – People v. Pittman (1st Dist., Div. 4, A166669)

The Court of Appeal holds that the trial court did not err when it considered the victims’ property value estimates contained in the probation report to set the amount of victim restitution for items taken during a burglary. The Court of Appeal also holds that the trial court did not err by refusing to order victim restitution for property alleged to have been damaged where the victims did not submit proof of the damage or of any repair costs.

Feb. 27, 2024 – Conservatorship of T.B. (1st. Dist., Div. 2, A167919)

The Court of Appeal holds amended WIC 5350(d)(2) (AB 2275), which provides that a trial on an LPS conservatorship petition must commence within 10 days of the proposed conservatee’s trial demand and that failure to timely commence the trial “is grounds for dismissal,” is directory and not mandatory. The Court of Appeal also finds that the trial court abused its discretion by granting the Public Guardian’s requests for continuances without considering all of the factors set forth in CRC 3.1332, but that the error was harmless.

Feb. 26, 2024 – People v. Patterson (5th Dist., F086065)

The Court of Appeal holds that, where a defendant was convicted of murder under a felony-murder theory and the murder conviction is vacated and redesignated under PC 1172.6, the conviction must be redesignated as the felony underlying the vacated murder conviction. The court thus holds that, because the jury at defendant’s trial was instructed only on a theory that defendant participated in an attempted robbery, defendant’s vacated murder conviction could not be redesignated as burglary.

Feb. 26, 2024 – People v. Gaillard (4th Dist., Div. 1, D082071)

The Court of Appeal reverses the prima facie denial of appellant’s PC 1172.6 petition, where appellant pleaded guilty to voluntary manslaughter before the preliminary hearing, and in denying the PC 1172.6 petition the trial court relied on the fact that appellant pleaded guilty “as an aider and abettor.” The Court of Appeal explains that nothing in appellant’s guilty plea establishes either that he admitted his guilt on a direct aiding and abetting theory (as opposed to on a natural and probable consequences theory), or that he acted with malice.

Feb. 23, 2024 – People v. Rios (4th Dist., Div. 3, G061764)

The Court of Appeal holds: (1) that a laser narcotics identification (TruNarc) test is a new scientific technique; (2) that the prosecution did not establish the test’s reliability or general acceptance within the relevant scientific community within the meaning of People v. Kelly (1976) 17 Cal.3d 24; and (3) that the court therefore erred when it admitted testimony about the test.

Feb. 23, 2024 – People v. McDowell (4th Dist., Div. 3, G062263)

The Court of Appeal holds that SB 81 does not apply to appellant’s elevated sentence under PC 236.1(c)(2), dealing with human trafficking of a minor with aggravating circumstances. The court reasons that SB 81 applies only to enhancements; it does not apply to an alternative sentencing scheme like PC 236.1(c)(2) that provides an alternative punishment for the underlying offense.

Feb. 23, 2024 – People v. Mares (4th Dist., Div. 2, E080611)

The Court of Appeal affirms the prima facie denial of defendant’s PC 1172.6 petition, where defendant was convicted by plea of voluntary manslaughter, and the preliminary hearing transcript included evidence of defendant’s admissions that he stabbed the victim and acted alone. The court holds that a trial court may deny a PC 1172.6 petition at the prima facie stage where the record of conviction “unambiguously precludes a conclusory assertion that the petitioner could not be convicted today because an accomplice liability theory of murder was invalidated.”

Feb. 22, 2024 – People v. Hall (2nd Dist., Div. 1, B326944)

The Court of Appeal holds that appellant’s conduct – threatening and assaulting patients in his mental health program, destroying property, and absconding – constituted “criminal conduct” under PC 1001.36(g)(3) that rendered him no longer suitable for mental health diversion. The court reasons that appellant’s actions demonstrated that he no longer agreed to comply with his treatment obligations and had stopped consenting to diversion, two eligibility requirements outlined in PC 1001.36(c). The court also notes that criminal conduct under PC 1001.36(g)(3) need not include a super-strike offense or the risk of such an offense.

Feb. 22, 2024 – People v. Clark (Supreme Ct., S275746)

The Supreme Court holds that, under PC 186.22(e)(1) as amended by AB 333, predicate offenses constituting a pattern of criminal gang activity may include offenses that were committed on separate occasions or by two or more members of the gang, resolving a split of authority in the Courts of Appeal. The court further holds that “collective engagement” within the meaning of PC 186.22 requires a nexus between the individual predicate offenses and the gang as an organized, collective enterprise.

Feb. 22, 2024 – In re Samantha F. (4th Dist., Div. 2, E080888)

The Court of Appeal finds the Department failed to conduct a sufficient initial inquiry into the child’s Indian heritage because it did not include extended family members who were readily available. There should be no distinction between removals under WIC 306 and WIC 340 since all children in temporary custody are in protective custody. In addition, federal emergency removal standards should be similarly applied to all removals in California. With respect to the WIC 388 petition, due process prevents the second judge from contradicting the first judge’s order for an evidentiary hearing and summarily denying father’s petition.

Feb. 21, 2024 – People v. Ferenz (6th Dist., H049430)

After defendant pleaded no contest to rape and dissuading a witness, the trial court sentenced him to 12 years in state prison and imposed various fines and fees, including a criminal justice administration fee of $129.75. The Court of Appeal agrees with the parties that the criminal justice administration fee was unauthorized and must be vacated in light of AB 1869. The court rejects defendant’s challenges to the trial court’s denial of his Marsden motion and failure to strike portions of the prosecution’s statement of view (PC 1203.01).

Feb. 21, 2024 – Review Grant – People v. Rhodius (S283169, E080064)

“This case presents the following issue: Does Senate Bill No. 483 (Stats. 2021, ch. 728) entitle a defendant to a full resentencing hearing under Penal Code section 1172.75 if the defendant’s prior prison term enhancements (Pen. Code, § 667.5, subd. (b)) were imposed and stayed, rather than imposed and executed?”

Feb. 20, 2024 – People v. Rouston (4th Dist., Div. 1, D080114)

The Court of Appeal reverses defendant’s conviction where a police officer impermissibly testified as to his conclusion that defendant fired the gun. The court reasons that the officer’s opinion was not based on particular expertise or matters outside the common knowledge of the jury and so supplanted the jury’s role to determine issues of fact.

Feb. 16, 2024 – People v. Yeager-Reiman (2nd Dist., Div. 5, B331175)

The Court of Appeal holds that defendant’s prosecution for theft was not preempted by federal law where he was a veteran and the theft was of Veteran’s Affairs funds. The court reasons that Congress did not clearly intend to preclude state criminal prosecutions for this type of conduct, and that the prosecution of defendant did not prevent accomplishment of federal legislation providing educational benefits to veterans.

Feb. 16, 2024 – People v. Kim (2nd Dist., Div. 5, B327473)

The Court of Appeal reverses the trial court’s order denying the prosecution’s motion under PC 871.5 to compel the magistrate to reinstate charges accusing defendants (two sheriff’s deputies) of filing false reports in violation of former PC 118.1. The court reasons that a reasonable fact finder could find that defendants made statements in the reports that were false and material, and that defendants knew the statements were false.

Feb. 14, 2024 – Bonds v. Superior Court (4th Dist., Div. 1, D082187)

The Court of Appeal holds that the trial court applied an incorrect legal standard when it denied defendant’s motion to dismiss criminal charges for violation of the RJA. The trial court denied the motion upon concluding that the officer could not exhibit racial bias unless he knew the race of the defendant. The Court of Appeal finds that the trial court erred by failing to consider the possibility that implied bias was implicated in the traffic stop.

Feb. 14, 2024 – People v. Paul (2nd Dist., Div. 5, B320488)

The Court of Appeal holds that evidence discovered during a parole search should have been suppressed where officers discovered the defendant’s active parole status after unlawfully detaining him. The officers approached defendant while he was sitting inside a parked car and talking on the phone. They blocked him from driving away or leaving the car and shined a flashlight into the car, and he had to end his phone call to interact with them. The court finds that, although the tone of the interaction was conversational, the circumstances would have led a reasonable person to believe they could not leave or decline to interact.

Feb. 14, 2024 – In re H.D. (4th Dist., Div.1, D082615)

On appeal, mother argued the juvenile court lacked authority under WIC 213.5 to issue a restraining order. Even though the issue had been forfeited, the Court of Appeal exercises its discretion to reach the issue because it involved an important legal issue of statutory interpretation that could reoccur. The court disagrees with mother and finds that the juvenile court’s authority to issue a restraining order under WIC 213.5 applies to petitions filed by social workers.

Feb. 9, 2024 – People v. Kimble (3rd Dist., C097389)

In 2008, defendant was convicted of stalking and sentenced as a third-strike offender to 25 years to life, plus a prison-prior enhancement (PC 667.5(b)). In 2013, defendant’s Prop 36 resentencing petition was denied on public safety grounds. Following a grant-and-transfer from the Supreme Court, the Court of Appeal rejects the AG’s concession that, at defendant’s 2022 resentencing under PC 1172.75 (SB 483), the trial court was required to resentence him as a second-strike offender since stalking is not a serious or violent felony. The court reasons that SB 483 does not allow a defendant to bypass the Prop 36 resentencing mechanism.

Feb. 8, 2024 – In re Lilianna C. (2nd Dist., Div. 2, B324755)

Addressing an issue of statutory construction and “drafting error,” the Court of Appeal holds that a juvenile court’s authority under WIC 213.5 to issue a restraining order protecting the “child or any other child in the household” applies whenever a dependency petition has been filed, including a petition filed by a social worker. In this case, WIC 213.5 does not authorize the issuance of an order protecting the maternal grandmother because she was not the legal guardian or current caretaker of the child.

Feb. 5, 2024 – In re Vaquera (Supreme Ct., S258376)

The Supreme Court holds that defendant must be resentenced where the prosecution did not provide notice of its intent to seek a sentence of 25 years to life under PC 667.61(j)(2) and instead alleged a circumstance under PC 667.61(b), which provides for a sentence of 15 years to life. The court reasons that due process requires notice of the “particular One Strike sentence” sought and “of which facts” the prosecution intends to prove in support. The court also clarifies that, while a One Strike sentence must be imposed when properly pled and proven, the prosecution has discretion as to whether to seek the sentence and which circumstance to allege.

Feb. 2, 2024 – People v. Jimenez (4th Dist., Div. 1, D081267)

The Court of Appeal holds that the prosecutor did not violate CCP 231.7 by exercising a peremptory challenge against a juror who expressed the belief that law enforcement could be biased based on race and stated that she would try to be fair but that her belief would be in the back of her mind during trial. The court finds that, while one of the reasons stated for the challenge was presumptively invalid, the trial court did not err by finding that the reason was related to the juror’s ability to be fair and impartial. The court also finds that the totality of the circumstances do not indicate that the prosecutor violated CCP 231.7.

Jan. 31, 2024 – People v. Dean (1st Dist., Div. 4, A166863)

The Court of Appeal holds that, upon resentencing, the trial court should have only recalculated the actual time appellant served in prison and not his conduct credits. The court further finds that remand for a hearing on appellant’s ability to pay certain fines and fees is necessary where the trial court indicated it might strike one of the fines (PC 290.3) but erroneously believed it did not have discretion to do so. Finally, due to the lack of adequate admonitions, the court sets aside the true finding on a strike allegation because the record does not affirmatively show that appellant’s admission was voluntary and intelligent.

Jan. 31, 2024 – In re M.B. (1st Dist., Div. 4, A166408)

The juvenile court committed appellant to an SYTF for a baseline term (WIC 875(b)) of 4 years and a maximum term (WIC 875(c)) of “22 years to life.” The court then modified its order in various ways, including by applying precommitment credits first against the baseline term and then, on reconsideration, against the maximum term. The Court of Appeal agrees that the maximum term should be 22 years determinate. The court rejects appellant’s other arguments, including that the juvenile court lacked jurisdiction to reconsider its order, and that precommitment credits should be applied against the baseline term as a matter of equal protection.

Jan. 31, 2024 – People v. Dain (1st Dist., Div. 2, A168286)

In a People’s appeal from a resentencing at which the trial court dismissed defendant’s prior strike, the Court of Appeal holds that the amended PC 1385(c) (SB 81) does not apply to the decision whether to dismiss a prior strike because the Three Strikes law is not an enhancement. The court also holds that the trial court’s dismissal of defendant’s prior strike was an abuse of discretion.

Jan. 31, 2024 – Statement Dissenting From Habeas Denial – In re Diaz (S276024)

In a statement dissenting from a habeas denial, Justice Groban “highlight[s] the troubling nature of this case.” Justice Groban explains that in 2007, as a juvenile, defendant “inexplicably” pleaded no contest in adult criminal court to witness intimidation (PC 136.1) with a gang enhancement (PC 186.22) and was sentenced to 7 years to life. The charges were based on defendant wearing a shirt stating, “Stop snitching. Kills rats instantly,” while in a courtroom as a witness testified. Justice Groban writes that he would issue an OSC and that the denial “does not necessarily preclude [defendant] from obtaining relief” by other means, including PC 1172.1.

Jan. 30, 2024 – People v. Underwood (1st Dist., Div. 2, A162356)

The Court of Appeal holds that there was not substantial evidence that defendant intended to kill or acted with reckless indifference to human life when he participated in a robbery that led to the death of the victim; thus, the trial court erred in denying defendant’s PC 1172.6 petition for resentencing. The AG conceded that defendant’s statutory right to confidential communication with counsel during the evidentiary hearing was violated where defendant listened to the hearing on speakerphone and lacked the means to confidentially communicate with counsel.

Jan. 30, 2024 – In re K.B. (3rd Dist., C09376)

The Court of Appeal holds that WIC 786(c)(1)‘s definition of “satisfactory completion of … probation” includes situations where the juvenile had an adjudication for an infraction. The court reasons that the language “felony offense or a misdemeanor involving moral turpitude” modifies and limits the preceding phrase “new findings of wardship or conviction,” not only “conviction.” The court concludes that the juvenile court was thus required to dismiss the petition and order all relevant records sealed.

Jan. 30, 2024 – People v. Brooks (4th Dist., Div. 1, D080776)

The Court of Appeal holds that a witness properly exercised the privilege against self-incrimination by asserting the privilege through her attorney. The Court of Appeal also holds that the trial court did not err when it refused to dismiss a juror for alleged bias where the juror knew one of the witnesses through work. The juror and witness did not work together, and the trial court found credible the juror’s statement that she would not view the witness’s testimony differently. One justice dissents from the holding on the Fifth Amendment issue and would have found a requirement that the witness personally assert the privilege.

Jan. 30, 2024 – In re R.M. (2nd Dist., Div. 3, B327716)

The Court of Appeal reverses the jurisdictional and dispositional findings, holding that, without more, a parent’s inability to care for or financially support a child due to incarceration is not grounds for dependency jurisdiction under either WIC 300(b)(1) or (g). The court observes that, under subdivision (g), the issue is whether the parent could arrange for care, not whether the parent has already done so.

Jan. 30, 2024 – In re A.K. (3rd Dist., C097776)

The Court of Appeal reverses the order terminating parental rights, finding that the juvenile court and Agency failed to comply with the notice and parentage inquiry requirements, and that father was denied due process as a result. The Court of Appeal disagrees with the Agency’s contentions that father’s arguments were untimely and had been forfeited.

Jan. 29, 2024 – In re Duong (2nd Dist., Div. 1, B325525)

The Court of Appeal dismisses defendant’s appeal from the superior court’s denial of his habeas petition where the appeal was based on a provision of Prop 66 (PC 1509.1(a)), which applies to habeas petitions filed by defendants sentenced to death. The court reasons that, although defendant was originally sentenced to death, he was subsequently resentenced to LWOP, so Prop 66 does not apply.

Jan. 25, 2024 – People v. Franco (2nd Dist., Div. 2, B324852)

The Court of Appeal reverses the trial court’s order denying defendant’s petition for removal from the state sex-offender registry. Relying on People v. Thai (2023) 90 Cal.App.5th 427, the Court of Appeal finds that the trial court erred by “g[iving] the egregious nature of the underlying crime controlling weight while giving no weight to the factors bearing on the now-75-year-old offender’s current likelihood of reoffending.”

Jan. 25, 2024 – Mosby v. Superior Court (4th Dist., Div. 2, E080924)

The Court of Appeal holds that, to establish a prima facie case under the RJA (PC 745(a)(3)), a defendant must establish that they were similarly situated to, and engaged in conduct similar to that of, nonminority defendants who were charged with lesser crimes, and that there was racial disparity in the prosecution’s charging system. The court further holds that defendant established a prima facie case by presenting both statistical evidence of past discrimination by the District Attorney in seeking the death penalty, as well as factual examples of cases similar to defendant’s in which the death penalty was not sought for the nonminority defendant.

Jan. 25, 2024 – Chavez v. Superior Court (2nd Dist., Div. 2, B332361)

Defendant was indicted by a grand jury on various offenses including gang allegations under PC 186.22. After AB 333 took effect, defendant moved to dismiss the gang allegations for insufficient evidence, and the trial court allowed the prosecution to present new evidence to the grand jury, prompting defendant’s petition for writ of mandate. The Court of Appeal denies the petition, holding that a trial court may “resubmit a crime or enhancement to the grand jury to permit the People to present evidence relevant to new elements of the crime or enhancement added by our Legislature after the initial grand jury proceeding.”

Jan. 25, 2024 – People v. Cartwright (4th Dist., Div. 1, D080606)

The Court of Appeal holds that defendant’s motion to suppress evidence obtained as a result of images recorded on city-owned streetlight cameras was properly denied because he had no reasonable expectation of privacy while on a public street. The court reasons that the cameras recorded only public areas and did not integrate with other systems to track individuals’ movements, as distinguished from the surveillance program in Leaders of a Beautiful Struggle v. Balt. Police Dep’t (4th Cir. 2021) 2 F.4th 330.

Jan. 24, 2024 – People v. Smyth (3rd Dist., C097934)

The Court of Appeal affirms the trial court’s denial of appellant’s PC 290.5 petition for termination from the California sex offender registry because appellant, an Oregon resident, was registered as a sex offender in Oregon, not in California. The court reasons that excluding out-of-state registrants is consistent with the legislative intent of PC 290.5, is not absurd, and does not violate principles of equal protection.

Jan. 23, 2024 – People v. Gonzalez (5th Dist., F084952)

Agreeing with People v. Scott (2023) 91 Cal.App.5th 1176 and People v. Aguirre (2023) 96 Cal.App.5th 488, the Court of Appeal rejects defendant’s argument that his prior conviction no longer qualifies as a strike in light of AB 333’s amendments to PC 186.22. The court reasons that because the conviction qualified as a strike on the date of conviction, it remains a strike now, regardless of AB 333. The court also rejects defendant’s argument that his upper-term sentences were improper in light of SB 567’s amendments to PC 1170(b).

Note: A similar issue regarding AB 333 is currently pending in the California Supreme Court in People v. Fletcher (S281282).

Jan. 22, 2024 – People v. Medrano (2nd Dist., Div. 6, B324567)

On rehearing, the Court of Appeal again affirms the prima facie denial of appellant’s second PC 1172.6 petition. The court reasons that its prior finding that appellant’s murder conviction was based on a direct aiding and abetting theory, which the court made in the appeal from the denial of appellant’s first PC 1172.6 petition, constitutes the law of the case.

Jan. 22, 2024 – People v. Hurt (3rd Dist., C096740)

A jury found defendant guilty of several crimes including three counts of possession of a controlled substance for sale. The trial court found true two on-bail enhancements under PC 12022.1 and increased defendant’s sentence accordingly. The Court of Appeal strikes one of the on-bail enhancements, holding that defendant is subject to only one on-bail enhancement because she committed her secondary offenses when she was released on bail on only one case.

Jan. 22, 2024 – People v. Campos (5th Dist., F084307)

The Court of Appeal holds that the government violated CalECPA (PC 1546.1) when it did not adequately notify defendant about the warrants sought for his electronic communication information. The court further holds, however, that the insufficient notice did not require suppression of the evidence obtained under the warrants because the purpose of CalECPA was achieved in spite of the notice error.

Jan. 22, 2024 – People v. Helzer (Supreme Ct., S132256)

In an automatic appeal from a judgment of death, the Supreme Court rejects a challenge to a property search as exceeding the scope of the warrants. The court also rejects claims involving jury selection, the admission of evidence of corpse dismemberment, the use of such evidence during closing argument, and the refusal to give defendant’s requested instruction on aggravating and mitigating factors.

Jan. 18, 2024 – People v. Fouse (5th Dist., F085131)

Appellant was convicted at trial of offenses including two counts of attempted murder of a peace officer and three counts of robbery. Upon granting appellant’s PC 1172.6 petition, the trial court vacated the attempted murders and redesignated them as two counts of assault with a firearm on a peace officer and one count of reckless evading. The Court of Appeal reverses, holding that because appellant was charged with and convicted of the target offenses (the robberies), PC 1172.6(e)’s redesignation procedure did not apply, and the trial court was limited to resentencing appellant on the “remaining charges” (PC 1172.6(d)(3)).

Jan. 16, 2024 – L.C. v. Superior Court (2nd Dist., Div. 7, B331041)

The Court of Appeal grants the child’s petition for extraordinary writ relief, finding that substantial evidence did not support the juvenile court’s finding that return of L.C. to mother would create a risk of detriment. The court states there is no “Go to Mexico, lose your child” rule in California. The court remands the matter for a new review hearing, including any new developments in the case since the last hearing and information relevant to L.C.’s safe return to mother.

Jan. 12, 2024 – In re P.H., Jr. (2nd Dist., Div. 5, B321592)

In an appeal from jurisidiction and disposition, the Court of Appeal finds that no formal ICWA notice was statutorily required because none of the statements by the parents or other family members provided reason to know the minor was an Indian child for purposes of the relevant statutes.

Jan. 12, 2023 – People v. Frias (2nd Dist., Div. 7, B322762)

After being convicted at trial of stalking, defendant argued on appeal that the trial court violated his Sixth Amendment right to counsel of his choice by denying his four requests to substitute in a law firm as his counsel. The Court of Appeal finds that while the denial of the first three substitution requests was proper based on the delays that would have resulted, the denial of the fourth substitution request was an abuse of discretion, as by that time there was nothing in the record indicating that the law firm was not prepared for trial. The court reverses the judgment.

Jan. 9, 2024 – In re L.B. (5th Dist., F086109)

The children appealed the juvenile court’s dispositional order declining to apply WIC 361.5(b)(13) and granting mother and father reunification services. Even though several of the children were subsequently returned to mother’s care, the Court of Appeal determines the appeal is not moot and reaches the merits of the issue. The court finds that the juvenile court’s conclusion that it was unable to apply the bypass provision because the parents were “engaging in treatment” was in error. The court reverses the order and remands the matter for a new disposition hearing.

Jan. 9, 2024 – Sarmiento v. Superior Court (4th Dist., Div. 1, D082443)

The Court of Appeal issues a writ of mandate directing the superior court to grant appellant’s request for mental health diversion (PC 1001.36), finding that the trial court abused its discretion by: (1) finding appellant’s symptoms would not respond to treatment, although she had never received treatment for her underlying mental disorders; (2) relying on appellant’s failures in prior substance abuse treatments to find that the recommended treatment would not meet her “specialized needs”; and (3) concluding that appellant “pose[d] an unreasonable risk to public safety” without finding that she was likely to commit a super strike.

Jan. 8, 2024 – People v. Lashon (1st Dist., Div. 3, A16374)

After the California Supreme Court remanded for the Court of Appeal to reconsider its original opinion in light of AB 1118’s amendments to the RJA (PC 745), the Court of Appeal once again holds that appellant forfeited her claim that the trial court exhibited implicit racial bias towards her trial counsel, in violation of PC 745, by failing to file a motion under the RJA in the trial court “before judgement was entered.” The court also denies appellant’s request for a stay and remand, finding that the “Legislature intended the stay and remand procedure to be available [only] in cases that need further factual development.”

Jan. 5, 2023 – People v. Coleman (1st Dist., Div. 5, A165198)

At a Marsden hearing held after defendant was convicted at trial of special-circumstance murder, defendant complained that trial counsel advised him to “use Ebonics, slang, and to sound ghetto” while testifying. Trial counsel responded that she advised defendant to “not be anybody that he’s not” and to “speak how he speaks.” The Court of Appeal rejects defendant’s claim that trial counsel’s advice indicated racial bias against him. The court reasons, “A defense attorney’s salient advice to a defendant to speak in his or her own voice when he or she testifies does not indicate bias or animus … because of … race, ethnicity, or national origin.”

Dec. 29, 2023 – People v. Alvarez (4th Dist., Div. 1, D080585)

The Court of Appeal holds that no exigent circumstances existed to justify a warrantless blood draw. The court finds that where defendant was conscious directly after the accident and became unconscious 90 minutes later, the unconsciousness exception described in Mitchell v. Wisconsin (2019) 139 S.Ct. 2525 did not apply.

Dec. 28, 2023 – People v. Campbell (1st Dist., Div. 2, A162472)

On rehearing, in a complex, multi-defendant appeal from both a resentencing under SB 620 and SB 1393 and the partial denial of defendants’ PC 1172.6 petitions, the Court of Appeal holds, among other things, that: (1) neither the jury’s “intent to kill” findings in connection with the gang-murder special circumstances, nor the Court of Appeal’s prior holding that the Chiu error in the case was harmless, preclude a prima facie showing under PC 1172.6; and (2) AB 333’s amendments to PC 186.22 require reversal and retrial on the gang-related firearm enhancements (PC 12022.53(e)) and gang-murder special circumstances (PC 190.2(a)(22)).

Dec. 28, 2023 – In re L.B. (1st Dist., Div. 4, A169341)

In an appeal from the termination of parental rights, the Court of Appeal finds that the ICWA inquiry was inadequate since no attempt was made by the Department to ask available relatives about the child’s possible Indian ancestry. The court adopts the standard set forth in In re Benjamin M. and finds the error prejudicial. In addition, the court holds that the duty to inquire of extended family members applies to both WIC 340 and WIC 306 removals.

Dec. 28, 2023 – In re Tony R. (1st Dist., Div. 2, A166850)

At the initial six-month review hearing for appellant’s secure-track commitment, appellant requested a six-month reduction in his baseline commitment term pursuant to WIC 875(e)(1), and the juvenile court denied the request. The Court of Appeal affirms. The court rejects appellant’s argument that, in light of the undisputed evidence that he performed well during the six-month period, he was entitled to the requested reduction.

Dec. 22, 2023 – People v. Ramirez (6th Dist., H049957)

Defendant was convicted at trial of sex offenses against four different victims and sentenced to 107 years to life in prison. The Court of Appeal affirms the judgment. The court rejects defendant’s Fourth and Fifth Amendment arguments relating to the compelled use of his fingerprint to unlock his phone. The court also rejects defendant’s arguments relating to CSAAS expert testimony, the jury instructions on this testimony and on the EC 1108 evidence, the prosecutor’s closing argument regarding lesser included offenses, and fines and fees.

Dec. 22, 2023 – People v. McCray (1st Dist., Div. 4, A166084)

In an appeal from an order recommitting appellant as an offender with a mental health disorder (OMHD), the Court of Appeal dismisses the appeal as moot. However, under the exception to the mootness doctrine for important issues that recur on appeal yet evade review, the court finds that the record was insufficient to support that appellant made a valid waiver of his jury trial right where the trial court relied entirely on trial counsel’s “perfunctory questioning” of appellant, which shed no light on appellant’s awareness of the nature of the right he was abandoning or the consequences of his decision to abandon it.

Dec. 21, 2023 – People v. Olay (1st Dist., Div 5, A166288)

Agreeing with People v. Burke (2023) 89 Cal.App.5th 237, the Court of Appeal holds that the term “enhancement” in PC 1385(c) (SB 81) does not include prior strikes.

Dec. 20, 2023 – Walsworth v. Superior Court (3rd Dist., C098517)

The Court of Appeal directs the superior court to issue an order dismissing the felony charges against defendant for violation of his right to a speedy trial under PC 1382(a)(2), which provides for dismissal of felony charges when a defendant is not brought to trial within 60 days after the filing of the remittitur. The court deems the remittitur filed as of the date it was received by the superior court appeals clerk, not the date several months later when a judge ordered the remittitur filed.

Dec. 20, 2023 – Review Grant – In re Hernandez (S282186, F076752)

“This case presents the following issue: Does the totality of the circumstances establish that defendant meaningfully understood the immigration consequences of her plea?”

Dec. 19, 2023 – People v. Saldana (3rd Dist., C097966)

The Court of Appeal holds that a defendant is entitled to a full resentencing hearing under PC 1172.75 (SB 483) if the now-invalid prison prior enhancements were imposed and stayed. The court emphasizes that a stayed enhancement carries the potential for an increased sentence in certain circumstances.

Dec. 18, 2023 – People v. Rojas (Supreme Ct., S275835)

The Supreme Court holds that AB 333, which amended PC 186.22 to narrow the definition of “criminal street gang” and the type of conduct considered to be criminal activity benefiting a street gang, did not unlawfully amend Prop 21, which added the gang-murder special circumstance (PC 190.2(a)(22)).

Dec. 18, 2023 – People v. Diaz (2nd Dist., Div. 8, B319020)

Appellant was convicted at trial of first degree murder. The Court of Appeal rejects appellant’s arguments relating to the denial of his motion to suppress, prosecutorial misconduct, and jury instructions. The court agrees with appellant, however, that the case must be remanded for resentencing under SB 81 and People v. Tirado (2022) 12 Cal.5th 688. The court finds that, although appellant was sentenced in March 2022, after SB 81 took effect and Tirado was issued, the lack of any reference in the record to these new legal developments indicates that “the busy actors in this case had not yet learned of [them].”

Dec. 15, 2023 – People v. Mitchell (5th Dist., F084489)

In 2017, appellant was convicted of various gang offenses and enhancements (PC 186.22). In 2021, the Court of Appeal remanded for resentencing. At the resentencing in 2022, the trial court declined to address the validity of the gang convictions under AB 333. The Court of Appeal reverses, rejecting the AG’s argument that the portion of appellant’s judgment relating to his guilt became final before AB 333’s effective date. The court reasons that a judgment cannot be “bifurcated” in this way, and that “the cutoff point for application of ameliorative amendments is the date when the entire case … is reduced to a final judgment.”

Note: A similar issue is currently pending in the California Supreme Court in People v. Lopez (S281488).

Dec. 14, 2023 – In re N.R. (Supreme Ct., S274943)

The Supreme Court holds that under WIC 300(b)(1)(D), “substance abuse” bears its ordinary meaning of excessive use of drugs or alcohol and can be established without a professional medical diagnosis or satisfaction of DSM criteria. The court also rejects the position that a finding of substance abuse is prima facie evidence of the inability of a parent to provide regular care to a child of “tender years.” The court reverses the judgment of the Court of Appeal and remands for further proceedings.

Dec. 13, 2023 – Statement Concurring With Order Denying Review – People v. Manzoor (S82382, A164739)

In a case where the Court of Appeal held that the trial court was not authorized to relieve defendant of his duty to register under PC 290 even after granting his PC 17(b) petition to reduce his PC 288.2 conviction to a misdemeanor, Justice Groban issues a statement concurring with the order denying review. Justice Groban “agree[s] … that this is not an appropriate case in which to grant review,” but “write[s] separately [to] … encourage the Legislature to consider whether an individual in defendant’s position should at least have an opportunity to seek relief from lifetime registration as a sex offender.”

Dec. 14, 2023 – Rodriguez v. Superior Court (Supreme Ct., S272129)

PC 1370(c)(1) sets the maximum term of incompetency commitment in most felony cases at two years, at which point the person must be either released or placed in conservatorship proceedings if they have not yet been restored to competency. The Supreme Court holds that, for the purposes of this maximum term, an incompetency commitment ends not when the hospital files a certificate with the trial court indicating that the defendant has been restored to competency, but rather only when the trial court acts on the certificate and determines whether the defendant has been restored to competency.

Dec. 13, 2023 – People v. Ruiz (2nd Dist., Div. 6, B324477)

The Court of Appeal holds that, after remand, defendant could receive a longer sentence than originally imposed because the original sentence was unauthorized. The court also concludes that, although the trial court improperly relied on certain aggravating factors to impose the upper terms on the offense and firearm enhancement, the error was harmless because a jury would have found aggravating factors true and the record clearly indicates the upper terms would have been imposed even in the absence of the challenged aggravating factors.

Dec. 13, 2023 – People v. De La Rosa Burgara (6th Dist., H049363)

The Court of Appeal holds that SB 567’s amendments to PC 1170(b) apply retroactively to convictions obtained by plea agreements that include stipulated sentences. However, applying the reasoning of People v. Stamps (2020) 9 Cal.5th 685, the court notes that if the upper term cannot be imposed in compliance with PC 1170(b) and the prosecution does not agree to a reduced sentence or the trial court rejects the reduction, the trial court must “‘return the parties to the status quo.’” To aid the parties and trial court upon remand, the court then outlines its understanding of the possible scenarios and necessary steps following remand.

Note: This issue is currently pending in the California Supreme Court in People v. Mitchell (S277314).  

Dec. 13, 2023 – People v. Hall (1st Dist., Div. 1, A165406)

The Court of Appeal holds that PC 1170(b) does not require the prosecution to plead aggravating factors. The court also rejects defendant’s claim that his jury trial waiver as to aggravating factors was insufficient under the Sixth Amendment; the court finds that defendant knowingly waived jury trial on the factors as part of his plea. Finally, the court holds that proof of one prior conviction supported imposition of the upper term.

Dec. 12, 2023 – People v. Lagunas (4th Dist., Div. 3, G061812)

A jury convicted appellant of second degree implied malice murder involving driving under the influence (Watson murder). On appeal, appellant argued that there was insufficient evidence of implied malice and that the trial court erred by failing to sua sponte instruct the jury on the lesser related offense of gross vehicular manslaughter while intoxicated. The Court of Appeal rejects both arguments and affirms the judgment. The court notes that the lesser-related-offense argument is “more properly directed to the Legislature.”

Dec. 8, 2023 – People v. Carter (4th Dist., Div. 1, D082219)

At defendant’s PC 1172.75 (SB 483) resentencing, the trial court struck a prior-prison-term enhancement (PC 667.5(b)) but declined to conduct a full resentencing on the ground that defendant was convicted pursuant to a plea agreement with a stipulated sentence. The Court of Appeal reverses, holding that the full-resentencing provisions of PC 1172.75 apply to all sentences, including stipulated sentences. Disagreeing with People v. Coddington (2023) 96 Cal.App.5th 562, the court also holds that the prosecution may not withdraw from the plea agreement if the trial court decides to further reduce the sentence on remand.

Dec. 8, 2023 – People v. Superior Court (Guevara) (2nd. Dist., Div. 6, B329457)

The Court of Appeal holds that PC 1172.75 (SB 483) does not require the trial court to modify a third strike sentence where the defendant’s petition for resentencing under PC 1170.126 (Prop 36) was already denied on public safety grounds. The dissent would find that defendant was entitled to a full resentencing, including modification of the portion of the sentence affected by the prior strikes, because the entire sentence was vacated upon a finding of eligibility for resentencing under PC 1172.75.

Dec. 6, 2023 – People v. Berry-Vierwinden (4th Dist., Div. 1, D081861)

The Court of Appeal affirms the prima facie denial of appellant’s PC 1172.6 petition, rejecting his argument that the instructions at his trial in 2010 allowed the jury to convict him of aiding and abetting a lying-in-wait murder by imputing malice to him. Relying on People v. Burns (2023) 95 Cal.App.5th 862 and People v. Flores (2023) 96 Cal.App.5th 1164, the court reasons that, to the extent the instructions were erroneous, they were erroneous at the time of trial, not because of SB 1437. “PC 1172.6 does not create a right to a second appeal, and [appellant] cannot use it to resurrect a claim that should have been raised in his direct appeal.”

Dec. 1, 2023 – Conway v. Superior Court (2nd Dist., Div. 5, B325986)

The Court of Appeal holds that, in SVP proceedings, a trial court may order a DSH evaluator to provide an updated evaluation on request by the defense. The court reasons that the plain language of WIC 6603 requires DSH to provide an updated evaluation upon request of the prosecution, but does not preclude the defense from asking that the court order an updated evaluation.

Nov. 30, 2023 – In re K.B. (1st Dist., Div. 2; A167385)

In an appeal from disposition, the Court of Appeal finds there was insufficient evidence to support the lower court’s findings that the Department exercised due diligence to identify, locate, and contact minors’ relatives. The court rejects the Department’s three arguments that mother had forfeited the challenge, that the findings were supported by substantial evidence, and that any error in making the findings was harmless.

Nov. 30, 2023 – People v. Buckner (1st Dist., Div. 4, A162304)

PC 451(b) criminalizes arson “that causes an inhabited structure or inhabited property to burn.” The Court of Appeal holds that the statute requires current inhabitation; therefore, the prosecution was not required to prove that appellant intended to continue living in the house after the fire, since he was living in the house at the time of the fire.  

Nov. 29, 2023 – People v. Wiley (1st Dist., Div. 4, A165613)

In selecting the upper term sentence for appellant’s criminal threats conviction, the trial court relied on the increasing seriousness of appellant’s convictions and his poor performance on probation, which were not admitted by appellant or found true by a jury beyond a reasonable doubt. The Court of Appeal holds that the trial court’s consideration of these aggravating factors did not violate the Sixth Amendment or PC 1170(b) because they were proved by a certified record of conviction and “they fall within the prior conviction exception to the heighten proof requirements that apply to other types of aggravating factors.”

Nov. 29, 2023 – People v. Foley (3rd Dist., C097140)

In 1995, appellant and a co-d were convicted of murder on a felony murder theory based on an incident where a third individual was the actual killer. When appellant and the co-d filed PC 1172.6 petitions, the trial court consolidated the petitions and appointed a single attorney to represent both appellant and the co-d. After an evidentiary hearing, the trial court granted the co-d’s petition but denied appellant’s, finding that only appellant was a major participant who acted with reckless indifference. The Court of Appeal reverses, holding that the trial court “violated appellant’s constitutional right to conflict-free representation.”

Nov 29, 2023 – People v. Velasco (4th Dist., Div. 1, D081230)

While defendant’s appeal was pending, the trial court held a PC 1172.75 (SB 483) resentencing hearing at which defendant was not present and struck a prior-prison-term enhancement (PC 667.5(b)) but did not conduct a full resentencing. The Court of Appeal first finds that the trial court had jurisdiction to resentence defendant, as PC 1172.75 presents an exception to the general rule that a trial court loses jurisdiction while an appeal is pending. The court then reverses on the ground that appellant did not validly waive his presence at the resentencing hearing. The court remands with instructions to conduct a full resentencing.

Nov. 28, 2023 – People v. Evers (1st Dist., Div. 4, A164989)

The Court of Appeal reverses the 15 percent administrative fee attached to defendant’s victim restitution orders, finding that the applicable statute (former PC 1203.1(l)) was repealed by AB 177. The court also finds that defendant’s ability-to-pay challenge to his restitution fine (PC 1202.4(b)) was forfeited. The court rejects defendant’s argument that any forfeiture was negated by the PC 1237.2 motions his appellate counsel filed in the trial court.

Nov. 28, 2023 – People v. Turner (4th Dist., Div. 2, E079183)

PC 1387.1 authorizes prosecutors to refile for a third time a violent felony charge that had been twice dismissed so long as one of the dismissals was “due solely to excusable neglect … on the part of the court, prosecution, law enforcement agency, or witnesses,” and the prosecution did not act in bad faith. The Court of Appeal holds that the first dismissal of a felony offense charged against appellant was due to the trial court’s excusable neglect – scheduling the preliminary hearing beyond PC 859b’s 60-day deadline due to the COVID-19 pandemic – and reverses the trial court’s order dismissing the charge.

Nov. 28, 2023 – People v. Hollie (2nd Dist., Div. 7, B321325)

Defendant’s first degree murder conviction was vacated following his successful petition for resentencing under PC 1172.6. The Court of Appeal holds that vacatur of a conviction due to changes in the law does not entitle a defendant to a finding of factual innocence under PC 851.8.

Nov. 28, 2023 – In re Koenig (3rd Dist., C098893)

The Court of Appeal rejects habeas petitioner’s claim that he was being unconstitutionally excluded from early parole consideration under Prop 57. The court concludes that petitioner did not qualify as a nonviolent offender under Prop 57 because, although he was convicted of and sentenced for a nonviolent offense, he was also convicted of and sentenced for violent felony offenses. The court reasons that Prop 57 did not replace existing law establishing that, when an aggregate term includes time for a violent offense, a person serves time for that violent offense throughout the duration of the aggregate term. 

Nov. 27, 2023 – People v. Curiel (Supreme Ct., S272238)

The Supreme Court holds that the jury’s true finding on a gang-murder special circumstance allegation (PC 190.2(a)(22)), which required the jury to find that defendant intended to kill, did not preclude defendant from making a prima facie showing under PC 1172.6. The court reasons that, although the jury’s intent to kill finding had preclusive effect in the PC 1172.6 proceedings, it did not conclusively establish that defendant could be convicted of murder under current law, even when considered in combination with the the jury’s other factual findings.

Nov. 27, 2023 – In re Banks (3rd Dist., C098247)

The Court of Appeal affirms the trial court’s grant of a petition for writ of habeas corpus where petitioner was found guilty in CDCR administrative proceedings of conspiring to bring drugs into prison and was subsequently disciplined. The court finds that there was no evidence that petitioner had any agreement with the sender of the envelope in which the drugs were hidden.

Nov. 21, 2023 – Review Grant – People v. Superior Court (Mitchell) (S281950, B326653)

“The court limited review to the following issues: (1) Does Penal Code section 1238 authorize an appeal by the People from a superior court’s post-preliminary hearing, prejudgment order reducing a felony ‘wobbler’ offense to a misdemeanor? (2) If not, may the People obtain review of the order by petition for extraordinary writ?”

Nov. 21, 2023 – People v. Trammel (1st Dist., Div. 1, A166756)

In defendant’s first appeal, the Court of Appeal held that the trial court erred by failing to stay punishment for two convictions pursuant to PC 654. On remand, the trial court imposed a longer aggregate sentence by changing which counts were to run consecutive or concurrent. The Court of Appeal holds that the imposition of a longer sentence on remand violated double jeopardy principles and that the Serrato exception did not apply, as the original sentence was not an unauthorized, too lenient sentence.

Nov. 21, 2023 – People v. Hamidi (San Diego County App. Div., CA296005)

The appellate division holds that the trial court did not err in a vehicular manslaughter trial by refusing the defense request to give CALCRIM 3404 (accident), where none of the evidence negated ordinary negligence, and where it was uncontroverted that defendant violated the Vehicle Code by passing a vehicle stopped at the crosswalk in a different lane. The appellate division also holds that the trial court did not err by refusing to give a pinpoint instruction on the definition of “overtake and pass,” as the instruction was not an accurate statement of the law.

Nov. 21, 2023 – People v. Mazur (4th Dist., Div. 1, D081331)

The Court of Appeal holds that the “shall be dismissed” language in two of the mitigating circumstances in PC 1385(c)(2) (SB 81) does not require dismissal of an enhancement where dismissal would endanger public safety. The court notes that this interpretation does not render meaningless the “shall be dismissed” language, in that the language still “clarifies that the court must dismiss the charged enhancement if it exercises its discretion to do so, and it cannot simply strike the punishment [for the enhancement].”

Nov. 20, 2023 – People v. Banks (2nd Dist., Div. 6, B312618)

The Court of Appeal affirms defendant’s conviction for human trafficking of a minor with force or fear (PC 236.1(c)(2)), rejecting defendant’s claims relating to the searches of defendant’s vehicle and the victim’s phone, the sufficiency of the evidence of force or fear, prosecutorial misconduct, and the failure to instruct on a lesser included offense.

Nov. 20, 2023 – People v. Nunez (4th Dist., Div. 3, G061346)

The Court of Appeal holds that the trial court correctly instructed the jury that, for provocation to reduce first degree murder to second degree murder, the provocation must come from the victim and not a third party, even where the theory of provocation is that it precluded the defendant from subjectively premeditating and deliberating.

Nov. 20, 2023 – People v. Mosqueda (3rd Dist., C097326)

The Court of Appeal holds that the “good cause” and “good moral character” requirements of California’s firearms licensing scheme are severable and thus that the scheme is not invalidated by the U.S. Supreme Court’s decision in Bruen.

Nov. 20, 2023 – People v. Salazar (Supreme Ct., S275788)

In a case where the low-term presumption of PC 1170(b)(6) (SB 567) was enacted during defendant’s appeal, the Supreme Court holds the Court of Appeal erred by finding the record “clearly indicated” the trial court would not have imposed the low term even if it had been aware of the scope of its discretion. The court emphasizes, “When the applicable law governing the defendant’s sentence has substantively changed after sentencing, it is almost always speculative for a reviewing court to say what the sentencing court would have done if it had known the scope of its discretionary powers at the time of sentencing.”

Nov. 20, 2023 – People v. Allen (2nd Dist., Div. 6, B324207)

A jury convicted defendant of murder and attempted murder based on instructions for direct aiding and abetting and for conspiracy to commit murder. The trial court denied defendant’s PC 1172.6 petition at the prima facie stage. The Court of Appeal affirms, reasoning that under either the direct-aiding-and-abetting theory or the conspiracy theory, the jury necessarily found that defendant acted with the intent to kill.

Nov. 17, 2023 – In re Hicks (2nd Dist., Div. 2, B319925)

The Court of Appeal holds that petitioner is not entitled to early parole consideration under Prop 57 (Cal. Const., art. I, § 32, subd. (a)(1)) because he was convicted of both violent and nonviolent felonies. CDCR did not abuse its rulemaking authority when it amended Title 15 of the California Code of Regulations to exclude “mixed offense inmates” from early parole consideration.

Nov. 17, 2023 – People v. Christianson (4th Dist., Div. 1, D081330)

The trial court declined to conduct a full resentencing under PC 1172.75 (SB 483), finding that because defendant’s prior-prison-term enhancements (PC 667.5(b)) had been stayed, they were not “imposed” within the meaning of the statute. The Court of Appeal reverses, holding that PC 1172.75 is not limited to enhancements that were imposed and then executed. The court remands for a full resentencing.

Note: There is a split of authority on this issue. (See People v. Rhodius (Nov. 13, 2023, 4th Dist., Div. 2, E080064); People v. Renteria (Nov. 8, 2023, 6th Dist., H049980).)

Nov. 17, 2023 – People v. Cota (5th Dist., F085451)

After defendant filed a petition for resentencing under PC 1172.75 (SB 483), the CDCR notified the trial court that defendant was eligible for resentencing under the statute, and the court struck defendant’s prior-prison-term enhancements (PC 667.5(b)) but declined to otherwise reduce his sentence. The Court of Appeal holds that, while defendant’s petition was unauthorized, the trial court had jurisdiction to resentence him based on the CDCR’s notification. The court also holds that the “shall be dismissed” language in PC 1385(c)(2)(B) does not require dismissal of an enhancement where dismissal would endanger public safety.

Nov. 17, 2023 – H.B. v. Superior Court (1st Dist., Div. 4, A168069)

After defendant was convicted of human trafficking (PC 236.1(a)) and pimping (PC 266h(a)), the victim requested restitution for the money she had received, but that defendant had taken from her, for the acts of prostitution defendant had forced her to commit. The trial court denied the request on the ground that PC 1202.4(p) does not authorize restitution for illegal labor. The Court of Appeal grants the victim’s writ petition, finding that the plain language and legislative history of PC 1202.4(p), as well as public policy, all support the conclusion that the statute authorizes restitution for forced prostitution earnings.

Nov. 16, 2023 – People v. Reyes (5th Dist., F085582)

The trial court denied appellant’s PC 1172.6 petition on the ground that appellant pleaded no contest to second degree murder in 2021 – more than two years after SB 1437’s changes to PC 188 and 189 took effect – and was thus ineligible for relief. The Court of Appeal affirms, holding that PC 1172.6 “does not apply to defendants who – like appellant in this case – were convicted under the current law.”

Nov. 15, 2023 – People v. Villegas (1st Dist., Div. 1, A164370)

Defendant was convicted at trial of multiple sex offenses, including three counts for which the trial court imposed three consecutive terms of 25 years to life pursuant to the One Strike law (PC 667.61(m)). Agreeing with People v. Jimenez (2019) 35 Cal.App.5th 373, the Court of Appeal holds that the information did not provide defendant with fair notice that his exposure on these counts was 25 years to life rather than 15 years to life and reduces the sentences accordingly. The court also rejects defendant’s Miranda and victim restitution arguments and modifies certain fines and fees.

Note: The fair notice issue is currently pending in the California Supreme Court in In re Vaquera, S258376.

Nov. 15, 2023 – Depublication Order – People v. Lashon (S282159, A163074)

“The petition for review is granted. The matter is transferred to the Court of Appeal, First Appellate District, Division Three, with directions to vacate its decision and reconsider the cause in light of Assembly Bill No. 1118 (Stats. 2023, ch. 464) … The Reporter of Decisions is directed not to publish in the Official Appellate Reports the opinion in the above-entitled appeal filed September 1, 2023, which appears at 95 Cal.App.5th 136.”

Nov. 15, 2023 – Review Grant – People v. Lopez (S281488, E080032)

“The issue to be briefed and argued is limited to the following: Is defendant entitled to retroactive application of Assembly Bill No. 333 (2021-2022 Reg. Sess.) where he appeals for a second time after his judgment was conditionally reversed and the Court of Appeal issued a limited remand to the trial court to address sentencing issues?”

Nov. 14, 2023 – In re Kayla W. (2nd Dist., Div. 3, B326119)

The Court of Appeal affirms the order terminating mother’s parental rights, rejecting mother’s contention that the juvenile court failed to comply with the UCCJEA.

Nov. 14, 2023 – People v. Gomez (1st Dist., Div. 5, A164374)

The Court of Appeal holds that the trial court abused its discretion by ordering appellant to pay noneconomic victim restitution pursuant to PC 1202.4(f)(3)(F), where there was no evidence of the impact of appellant’s crimes on the victim, so the trial court instead relied exclusively on its experience and “common sense” regarding similar incidents. The court reasons that an award for noneconomic damages must be supported by “some evidence of the harm incurred by the particular victim.”

Nov. 13, 2023 – Zepeda v. Superior Court (1st Dist., Div. 4, A166159)

In a writ proceeding, the Court of Appeal addresses several issues regarding SB 567’s amendments to PC 1170(b). The court holds that: (1) the phrase “circumstances in aggravation” in PC 1170(b)(2) refers to the factors in CRC 4.421; (2) this delegation of authority to the Judicial Council does not violate the nondelegation or separation of powers doctrine; (3) the factors in CRC 4.421 are not unconstitutionally vague; and (4) circumstances in aggravation need not be supported by the evidence at the preliminary hearing. The court denies defendant’s writ petition.

Nov. 13, 2023 – People v. Rhodius (4th Dist., Div. 2, E080064)

The trial court declined to conduct a full resentencing under PC 1172.75 (SB 483), finding that because defendant’s prior-prison-term enhancements (PC 667.5(b)) had been stayed, they were not “imposed” within the meaning of the statute. The Court of Appeal affirms, explaining that “the term ‘imposed’ as used in PC 1172.75 applies only to sentences that are ‘imposed and executed.'” The court reasons that interpreting the statute to also include enhancements that were imposed and stayed would be contrary to both the statute’s plain language and its legislative history.  

Nov. 8, 2023 – People v. Vera (Fresno County App. Div., M21910977)

PC 1510 allows for pretrial review of the denial of a misdemeanor motion to suppress (PC 1538.5) “only if the motion was made … not later than 45 days following defendant’s arraignment.” In a case where defendant waived time for arraignment and appealed from the denial of a motion to suppress before being arraigned, the appellate division holds that the appeal is not authorized under PC 1510, as the “statute requires there be an arraignment, then a motion to suppress made not later than 45 days following that arraignment.” The appellate division also holds that Wende procedures are not required in a misdemeanor PC 1510 appeal.

Nov. 8, 2023 – People v. Renteria (6th Dist., H049980)

On remand for resentencing, the trial court found that because defendant’s prior-prison-term enhancements (PC 667.5(b)) had been stayed, they were not “imposed” within the meaning of PC 1172.75 (SB 483), and thus declined to conduct a full resentencing. The Court of Appeal reverses, explaining that “the word ‘impose’ applies to enhancements that are imposed and then executed as well as those that are imposed and then stayed.” The court also holds that the “shall be dismissed” language in two of the mitigating circumstances in PC 1385(c)(2) (SB 81) does not require dismissal of an enhancement where dismissal would endanger public safety.

Nov. 7, 2023 – Boitez v. Superior Court (3rd Dist., C098102)

The Court of Appeal finds that defendant’s consent to a search of his mother’s car was not voluntary where, in obtaining defendant’s consent, the searching officer falsely – but apparently in good faith – stated that he had the authority to tow the car but would not do so if defendant agreed to a search. The court emphasizes that the officer’s subjective good faith does not impact the analysis: “The question of voluntary consent cannot be based on the subjective good faith of an officer in making a representation that induced the consent.” The court issues a writ directing the trial court to grant defendant’s motion to suppress.

Nov. 2, 2023 – People v. Flores (4th Dist., Div. 1, D081200)

In a case where a jury convicted defendant of second degree murder under the provocative act doctrine, the Court of Appeal affirms the prima facie denial of defendant’s PC 1172.6 petition. The court rejects defendant’s argument that the jury could have convicted him based on the provocative conduct of his accomplice and without finding that he personally acted with implied malice. The court finds that, “unlike the instruction in [People v. Lee (2023) 95 Cal.App.5th 1164], … the instruction in defendant’s case directed the jury’s attention to both his acts and his mental state.”

Oct. 26, 2023 – People v. Ponder (1st Dist., Div. 2, A166053)

The Court of Appeal holds that remand is not required under amended PC 654 (AB 518) because the record “unmistakably” shows the trial court would not have changed the sentence even if it believed amended PC 654 applied. The court further holds the trial court did not err under amended PC 1385 (SB 81) when it imposed a firearm enhancement because the statute’s language that a court “shall” dismiss certain enhancements is conditioned on the court’s finding that dismissal is in the furtherance of justice. 

Oct. 25, 2023 – People v. Hupp (4th Dist., Div. 2, E079389)

A jury convicted defendant of four counts of violating PC 69 based on threatening statements he made to four judges. The Court of Appeal reverses the convictions, holding that a judge is not an “executive officer” within the meaning of PC 69. The court reasons that the term “executive officer” as used in PC 69 “unambiguously refers to an officer of the executive branch, and judges are not part of the executive branch.”

Oct. 25, 2023 – People v. LaRoche (3rd Dist., C097431)

The Court of Appeal reverses the trial court’s order awarding $7,500 in victim restitution for the loss of a mounted ram’s head, finding the award improperly included the cost of the associated hunting trip taken ten years earlier. The court reasons that the hunting trip was not “property lost” as a result of appellant’s criminal conduct and reduces the award to $1,500, the value of the ram’s head.

Oct. 25, 2023 – People v. Das (3rd Dist., C096982)

In this PC 1172.6 resentencing appeal, the Court of Appeal reverses the order denying relief, finding the trial court engaged in improper factfinding at the prima facie stage. The Court of Appeal explains that while it agrees with the trial court’s assessment that the stated factual basis, if true, demonstrated appellant stabbed the victim with intent to kill, appellant did not stipulate to the factual basis or otherwise admit the truth of the facts recited by the prosecutor.

Oct. 25, 2023 – People v. Hampton (1st Dist., Div. 1, A165957)

The Court of Appeal holds that no error occurred where, due to COVID exposure, a juror deliberated remotely for one day. Likewise, where the trial judge was substituted during deliberations, the Court of Appeal holds that the communications between the original and substitute judge about prior, off-record discussions were ethical, and thus that the resulting denial of the defense motion for a mistrial was not error.

Oct. 25, 2023 – Depublication Order – People v. Kimble (S281526, C097389)

“The petition for review is granted. The matter is transferred to the Court of Appeal, Third Appellate District, with directions to vacate its decision and reconsider the cause in light of the Attorney General’s concession that defendant was entitled to resentencing under the revised penalty provisions of the Three Strikes Reform Act … The Reporter of Decisions is directed not to publish in the Official Appellate Reports the opinion in the above-entitled appeal filed July 14, 2023, which appears at 93 Cal.App.5th 582.”

Oct. 24, 2023 – People v. Shah (1st Dist., Div. 2, A162676)

The Court of Appeal affirms the trial court’s order under PC 186.11, the “Freeze and Seize” law designed to aid in the enforcement of restitution awards in certain white collar crime cases by allowing a court to enter an order freezing and seizing a defendant’s property. The court rejects defendant’s argument that PC 186.11 order here was untimely because it was entered after sentencing and after the remittitur was issued in the original direct appeal in the case.

Oct. 23, 2023 – People v. Ortiz (6th Dist., H050117)

The Court of Appeal holds that an appellate court may review reasons given by the prosecutor for exercising a peremptory challenge under CCP 231.7(c), even when those reasons were suggested by the trial court. The court finds that those reasons here are supported by the record and do not evince unlawful bias. The court also holds that the prosecutor’s articulation of reasons related to the prospective juror’s demeanor are presumptively invalid under CCP 231.7(g), but that the trial court’s finding that those reasons were valid is supported by substantial evidence.

Oct. 18, 2023 – People v. Allen (4th Dist., Div. 2, E079475)

The Court of Appeal holds that the statutes prohibiting possession of a controlled substance while armed and carrying a loaded, unregistered firearm in a vehicle are facially constitutional and rejects defendant’s Bruen challenge. The court reasons that the Second Amendment does not cover the conduct of possessing a controlled substance while armed, and that states are allowed to implement licensing requirements.

Oct. 18, 2023 – Review Grant – People v. Antonelli (S281599, B321947)

“This case presents the following issues: (1) Is defendant entitled to resentencing pursuant to Penal Code section 1172.6 on the ground that malice could be imputed to the defendant under the provocative act theory of murder for convictions occurring before 2009 (see Sen. Bill No. 775 (2021-2022 Reg. Sess.); People v. Concha (2009) 47 Cal.4th 653)? (2) Did the trial court err by not considering the jury instructions in determining defendant was ineligible for resentencing as a matter of law for a provocative act murder?”

Oct. 17, 2023 – People v. Coddington (1st Dist., Div. 1, A166124)

In an appeal from a PC 1172.75 (SB 483) resentencing at which the trial court struck a prior-prison-term enhancement (PC 667.5(b)) but did not conduct a full resentencing, the Court of Appeal remands the matter for a full resentencing at which defendant may seek relief under SB 1393, SB 81, and “any other legislation that may reduce his sentence.” The court also holds, however, that under People v. Stamps (2020) 9 Cal.5th 685, because defendant was convicted pursuant to a plea agreement with an agreed-upon term, the prosecution may elect to withdraw from the agreement if the trial court decides to further reduce the sentence.

Oct. 17, 2023 – People v. Molina (4th Dist., Div. 3, G061280)

The Court of Appeal upholds appellant’s convictions for multiple sex crimes, rejecting his claim that COVID-19 safety protocols implemented at trial, including the use of masks and socially-distanced seating arrangements, deprived him of his right to a fair trial. The court further finds trial counsel did not render ineffective assistance by asking the trial court to disclose to prospective jurors that appellant was in custody.

Oct. 17, 2023 – People v. Quan (4th Dist., Div. 3, G061191)

The Court of Appeal reverses the trial court’s denial of defendant’s PC 1172.6 petition, finding that defendant’s constitutional and statutory rights to be personally present at the evidentiary hearing were violated, and that the error was not harmless beyond a reasonable doubt. The court remands with directions to hold a new evidentiary hearing at which defendant will either be present or provide a valid waiver of his presence.

Oct. 17, 2023 – People v. Manzo (4th Dist., Div. 2, E079991)

The trial court dismissed three charges against defendant due to evidence lost during the prosecution’s five-year post-complaint delay in prosecuting the case. The Court of Appeal reverses, finding no evidence of “actual prejudice” caused by the delay and the resultant loss of potentially exculpatory dashcam footage.

Oct. 16, 2023 – People v. Saavedra (4th Dist., Div. 3, G061556)

The Court of Appeal holds that the trial court properly denied a PC 1172.6 resentencing petition where defendant was convicted of attempted murder pursuant to a guilty plea and the admitted factual basis for the plea specifically indicated that he was the actual shooter.

Oct. 16, 2023 – In re R.Q. (4th Dist., Div. 2, E080765)

In a presumed father’s appeal from the juvenile court’s order placing the child with her biological father, the Court of Appeal holds that the juvenile court does not have authority under WIC 361.2 to place a child with a “mere biological parent.” However, the juvenile court has broad authority to craft orders for the well-being of a dependent child. Here, the juvenile court acted within its broad discretion in determining that the child’s placement with her biological father was in her best interest.

Oct. 16, 2023 – People v. Coca (4th Dist., Div. 2, E079703)

The Court of Appeal reverses the order granting defendant’s motion to vacate under PC 1473.7. The court finds that defendant failed to carry her burden of proving by a preponderance of the evidence that her misdemeanor conviction for receiving stolen property (PC 496(a)) was “causing or ha[d] the potential to cause removal or the denial of an application for an immigration benefit, lawful status, or naturalization.” (PC 1473.7(e)(1).)

Oct. 16, 2023 – People v. Aguirre (2nd Dist., Div. 6, B323282)

The trial court struck appellant’s prior PC 186.22 conviction, finding it no longer qualified as a strike under AB 333 because there was insufficient evidence his firearm possession provided more than a reputational benefit to the gang. The Court of Appeal reverses, holding that because the conviction qualified as a strike on the date of conviction, it continues to qualify as a strike under the Three Strikes law.

Note: A similar issue is currently pending in the California Supreme Court in People v. Fletcher (S281282).

Oct. 13, 2023 – People v. Pittman (1st Dist., Div. 4, A161815)

In an appeal from the denial of a PC 1172.6 resentencing petition, the Court of Appeal reverses so that the trial court may consider the defendant’s youth (age 21) in assessing whether he acted with implied malice.

Oct. 13, 2023 – In re C.L. (3rd Dist., C097911)

The Court of Appeal follows the guidance of In re Delila D. (2023) 93 Cal.App.5th 953 and finds that the initial duty of inquiry is triggered whether a child is removed pursuant to WIC 306 or WIC 340. In addition, based on the statements of father, the duty of further inquiry was triggered because there was a reason to know that the child may be an Indian child.

Oct. 12, 2023 – People v. Simmons (2nd Dist., Div. 6, B309921)

During rebuttal, the prosecutor suggested the Black defendant was lying based on his skin tone and “ethnic presentation.” The Court of Appeal holds the argument violated the Racial Justice Act (PC 745 (a)(2)), and that trial counsel was ineffective for failing to raise the violation at sentencing. Explaining that the RJA “forecloses any traditional case-specific harmless error analysis,” the court reverses and remands for the trial court to impose the appropriate statutory remedy. The dissent argues the RJA violates Article VI of the California Constitution, which requires a prejudice showing before a conviction may be reversed.

Oct. 9, 2023 – In re Jose C. (2nd Dist., Div. 7, B317838)

The Court of Appeal dismisses father’s appeal from the juvenile court’s jurisdictional and dispositional orders as moot. Subsequent to the filing of the notice of appeal, the juvenile court terminated its jurisdiction and issued custody orders. No notice of appeal was filed from the subsequent order. The court finds that without the second appeal, father failed to demonstrate that the appellate court could provide any relief from the harm identified in the first appeal.

Oct. 3, 2023 – People v. Trent (3rd Dist., C096306)

The Court of Appeal holds that defendant, after being resentenced pursuant to PC 1172.6, was entitled to retroactive application of AB 333, and that this required reversal of defendant’s conviction for gang participation (PC 186.22). The court reasons that the vacatur of defendant’s murder conviction rendered his conviction for gang participation nonfinal for retroactivity purposes.

Sep. 29, 2023 – Sandoval v. Superior Court (6th Dist., H050633)

CCP 170.6(a)(2) authorizes a peremptory challenge to a trial court judge “following reversal on appeal of a trial court’s decision … if the trial judge in the prior proceeding is assigned to conduct a new trial on the matter.” The Court of Appeal denies petitioner’s writ of mandate, holding that a remand for reconsideration of a PC 1172.6 petition does not constitute a “new trial” for purposes of CCP 170.6(a)(2).

Sep. 28, 2023 – In re Casey (2nd Dist., Div. 6, B321709)

After serving 23 years for a murder he committed when he was 17 years old, petitioner was granted parole by the parole board, but the Governor reversed on the ground that petitioner lacked adequate insight into his crime. The trial court granted habeas relief, finding that the Governor’s decision was unsupported by the evidence. In a 2-1 decision, the Court of Appeal reverses. The court reasons that, under the deferential “some evidence” standard, the “aggravated circumstances” of the murder, “coupled with what the Governor could reasonably conclude [was] inadequate insight,” justified the Governor’s decision.

Sep. 27, 2023 – People v. Lee (2nd Dist., Div. 1, B323940)

The Court of Appeal holds that defendant is not categorically ineligible for PC 1172.6 relief – despite having been convicted of murder under the provocative act doctrine – in light of the jury instructions at his trial in 1994. The court explains that the instructions allowed defendant to be convicted based “solely on the … provocative acts of his confederates in the underlying robbery, without any findings as to [his] mental state,” and that defendant thus may have been convicted under a “theory under which malice is imputed to a person based solely on that person’s participation in a crime.” (PC 1172.6(a).)

Sep. 27, 2023 – People v. Davenport (1st Dist., Div. 4, A165093)

In a PC 1172.6 appeal, the Court of Appeal holds that the trial court did not err by admitting a witness’s preliminary hearing testimony for its truth at the evidentiary hearing. The court reasons that PC 1172.6(d)(3) authorizes trial courts to “consider evidence previously admitted at any prior hearing … that is admissible under current law, including witness testimony [from a preliminary hearing].” The court additionally finds that PC 1172.6(d)(3) created a new hearsay exception for former testimony given at a preliminary hearing.

Sep. 27, 2023 – Review Grant – People v. Fletcher (S281282, E077553)

“The issues to be briefed and argued are limited to the following: (1) Does Assembly Bill No. 333 amend the requirements for a true finding on a prior strike conviction (Pen. Code, §§ 667, subds. (b)-(i) & 1170.12, subds. (a)-(d)) and a prior serious felony conviction (Pen. Code, § 667, subd. (a)), or is that determination made on “the date of that prior conviction”? (See Pen. Code, §§ 667, subd. (d)(1) & 1170.12, subd. (b)(1).) (2) Does Assembly Bill No. 333 (Stats. 2021, ch. 699), which modified the criminal street gang statute (Pen. Code, § 186.22), unconstitutionally amend Proposition 21 and Proposition 36, if applied to strike convictions and serious felony convictions?”

Sep. 26, 2023 – People v. Esparza (4th Dist., Div. 1, D080703)

The Court of Appeal affirms the denial of appellant’s suppression motion, finding that the officers had reasonable suspicion to pat search appellant following a lawful traffic stop where an officer recognized appellant and the two passengers as gang members, the traffic stop occurred in contested gang territory, and a gun and ammunition had just been found on one of the passengers. The court also finds that the detention was not unduly prolonged because the delay was caused by the officers’ decision to wait for backup in light of safety concerns and not “to accommodate the officers’ [criminal] investigation.”

Sep. 26, 2023 – People v. Bodely (6th Dist., H050142)

At trial, the jury rejected appellant’s defense that because the underlying offense was petty theft rather than burglary or robbery, he could not be found guilty of first degree felony murder. Appellant petitioned for resentencing under PC 1172.6, arguing the record left open the possibility that he did not intentionally kill the victim and thus may not have been the actual killer. The Court of Appeal affirms the denial of the petition, finding that, as “the sole and actual killer,” appellant is ineligible for resentencing as a matter of law.

Sep. 26, 2023 – People v. Bingham (1st Dist., Div. 5, A163112)

At defendant’s trial for violating PC 273.5, the victim did not testify, but her 911 call was admitted into evidence. The Court of Appeal finds the trial court erred in excluding the victim’s prior convictions and the statements she made recanting her statements in the 911 call, but further finds the error harmless. In applying the Watson standard, the court disagrees with People v. Corella (2004) 122 Cal.App.4th 461 “[t]o the extent it suggests that the erroneous exclusion of impeachment evidence against a key declarant offered under EC 1202 is necessarily prejudicial.”

Sep. 26, 2023 – People v. Peterson (1st Dist., Div. 3, A163458)

Defendant was convicted of stalking (PC 646.9) based on: (1) his odd comments to a politician’s wife at an open house event for a local school issue; (2) his posting on Facebook of a publicly available photo of the politician’s family along with comments mentioning the open house event and the politician’s children; and (3) his mailing of a rambling letter criticizing local politics to the politician’s wife. The Court of Appeal reverses the conviction, applying independent review in light of the First Amendment concerns and finding that “a reasonable listener would not have found [defendant’s] speech or speech-related acts a true threat of violence.”

Sep. 26, 2023 – People v. Bratton (4th Dist., Div. 2, E078627)

In an appeal from the denial of a PC 1172.6 resentencing petition at the prima facie stage, the Court of Appeal finds that the trial court’s consideration of facts contained in the prior appellate opinion was harmless error. The court reasons that the issue of whether defendant was the actual shooter was litigated at trial, even though the defense trial theory was that defendant was not involved in the offense, and defense counsel did not argue the alternative theory that defendant was present for the offense but was not the actual killer.

Sep. 25, 2023 – People v. Fisher (2nd Dist., Div. 5, B323408)

The Court of Appeal affirms the prima facie denial of appellant’s PC 1172.6 petition, where appellant pleaded guilty to murder and attempted murder, and as part of his plea colloquy he agreed with the prosecutor’s statement that he committed the crimes by shooting the victims during a burglary. The court rejects appellant’s argument that his plea contained no admissions to his mental state. The court reasons that appellant “was the sole defendant, [and] did not merely plead guilty to murder and attempted murder: he expressly admitted to shooting and killing two people, and shooting and injuring a third person.”

Sep. 25, 2023 – People v. Panighetti (3rd Dist., C095100)

At trial, the prosecution relied on evidence of uncharged sex and domestic violence offenses to prove defendant’s propensity to commit the charged sex offenses. On appeal, defendant argued the propensity instructions diluted the burden of proof because they required that the uncharged acts be proven only by a preponderance of evidence. The Court of Appeal disagrees, finding no reasonable likelihood of juror confusion, even where the uncharged acts involved the complaining witness in the charged offenses. The court also upholds the trial court’s denial of multiple Marsden motions and imposition of a 280-year sentence.  

Sep. 21, 2023 – People v. Burns (4th Dist., Div. 1, D080779)

At trial in 2010, defendant was convicted of first-degree murder based in part on an instruction erroneously indicating that an aider and abettor and a direct perpetrator are necessarily “equally guilty.” The Court of Appeal acknowledges that the instruction has been disapproved, but nevertheless affirms the prima facie denial of defendant’s PC 1172.6 petition. The court reasons that the problem with the instruction “has nothing to do with the legislative changes … effected by SB 1437,” and that defendant thus did not make a prima facie showing that he could not be convicted of murder because of changes made by that bill.

Sep. 19, 2023 – People v. Morones (3rd Dist., C095560)

Appellant was convicted of two counts of PC 136.1 (dissuading a witness) after he called his children from jail and urged them to lie to police about the gun charges against him. The Court of Appeal reverses, finding as a matter of law that: (1) no violation of PC 136.1(b)(1) occurred because the children had already spoken to police after the shooting and there was no new criminality to report at the time of the calls; and (2) no violation of PC 136.1(a)(2) occurred because appellant attempted to get his children to lie to police, not prevent their testimony at a preliminary hearing or trial.

Sep. 19, 2023 – People v. Suazo (5th Dist., F082140)

Appellant argued his second degree Watson murder conviction was not supported by sufficient evidence because he drank without intending to drive, then drove while not conscious of doing so. He further argued the trial court erred by failing to instruct on voluntary intoxication or unconsciousness as to the VC 20001 counts. The Court of Appeal rejects both arguments, but remands for SB 567 and AB 124 resentencing.  

Sep. 15, 2023 – People v. Aguilar-Jimenez (6th Dist., H050153)

The Court of Appeal holds that the superior court’s dismissal of two murder counts under PC 995, recharged by information after the magistrate previously dismissed them under PC 871, did not bar further prosecution of those counts under PC 1387(c)(3). The court reasons that, while PC 1387 generally bars prosecution of any felony count that has been twice dismissed, the magistrate’s dismissal “was not a termination of the action, given the lawful recharging of the counts in the information under PC 739”; thus, the superior court’s dismissal constituted only the first termination of the action.

Sep. 13, 2023 – People v. Manzoor (1st Dist., Div. 1, A164379)

After the trial court granted defendant’s PC 17(b) petition to reduce his PC 288.2 conviction to a misdemeanor, defendant asked the court to relieve him of his duty to register under PC 290, and the court denied the request. The Court of Appeal affirms based on PC 17(e), which specifies that PC 17 “does not authorize a judge to relieve a defendant of the duty to register [under PC 290] if the defendant is charged with an offense for which registration … is required … and for which the trier of fact has found the defendant guilty.”

Sep. 13, 2023 – People v. Pomar (1st Dist., Div. 5, A167241)

The Court of Appeal affirms the trial court’s order recusing the entire San Francisco District Attorney’s Office under PC 1424 from prosecuting defendants, the accused killers of the cousin of District Attorney Brooke Jenkins’s husband. The court finds that given Jenkins’s public statements about the case and animosity toward defendants, imposition of an “ethical wall” did not sanitize the conflict of interest because assistant district attorneys would consciously or unconsciously be more aggressive in prosecuting the case.

Sep. 13, 2023 – Review Grant – People v. Emanuel (S280551, H049147)

“This case presents the following issue: Does sufficient evidence support the trial court’s finding that defendant acted with reckless indifference to human life and therefore was ineligible for resentencing pursuant to Penal Code section 1172.6?”

Sep. 12, 2023 – People v. Escobedo (2nd Dist., Div. 6, B322608)

The trial court denied defendants’ petitions for resentencing under SB 483 and PC 1172.75, which defendants filed after serving their sentences for their cases including prior-prison-term enhancements (PC 667.5(b)), but while still incarcerated based on convictions for in-prison offenses. The Court of Appeal dismisses defendants’ appeals as taken from nonappealable orders. The court reasons that PC 1172.75 does not allow a defendant to seek relief on their own motion, and that, in any event, neither defendant was “currently serving a term for a judgment that includes [a prior-prison-term] enhancement,” as required under the statute.

Sep. 11, 2023 – People v. Slaton (3rd Dist., C096437)

Disagreeing with People v. Venable (2023) 88 Cal.App.5th 445, the Court of Appeal holds that EC 352.2, which limits the admissibility of evidence of creative expression in criminal cases, does not apply retroactively under In re Estrada (1965) 63 Cal.2d 740. The court reasons that the statute is an evidentiary rule and does not provide a potentially ameliorative benefit to defendants.

Note: The California Supreme Court granted review in Venable, but briefing is currently deferred pending decisions in People v. Bankston, S044739, and People v. Hin, S141519, both automatic appeals also involving the retroactivity of EC 352.2.

Sep. 11, 2023 – In re Jerry R. (5th Dist., F085850)

Following the conclusion of In re Delila D. (2023) 93 Cal.App.5th 953, the Court of Appeal finds there is no reason to distinguish between children taken by warrant pursuant to WIC 340 and those taken into temporary custody without a warrant pursuant to WIC 306, and that the duty of inquiry under WIC 224.2(b) applies to both. The agency did not conduct a proper, adequate, and duly diligent inquiry, requiring a conditional reversal with limited remand for ICWA inquiry.

Sep. 7, 2023 – People v. Narro (4th Dist., Div. 2, E079444)

In a case in which appellant was convicted of sexual offenses against two minors, the trial court awarded restitution in the amount of $9,461.34 in order for one of the victims’ mothers to replace furniture that was undamaged, but invoked painful memories of the molestation. The Court of Appeal upholds the restitution order as noneconomic losses under PC 1202.4(f)(3)(F), noting that such losses “need not be tied to any specific damages,” and that the victim “could have requested a much higher amount based on the years of sexual abuse.”

Sep. 7, 2023 – People v. Aranda (4th Dist., Div. 3, G061394)

During voir dire, the prosecution exercised a challenge for cause against a prospective juror who admitted she would hold police officers to a higher standard of credibility than other witnesses. Citing to the recently enacted CCP 231.7, the defense argued that distrust of law enforcement is now a presumptively invalid reason to challenge a juror. The Court of Appeal holds that the plain language of CCP 231.7 establishes that it applies only to peremptory challenges and not to challenges for cause.  

Sep. 6, 2023 – People v. Perez-Robles (3rd Dist., C095414)

In a case in which appellant, a massage therapist, was charged with sexual offenses against his clients, the Court of Appeal holds that there was sufficient evidence of restraint to support a conviction under PC 243.4(a). However, the court further finds that “the issue is close and that the evidence did not compel such a finding”; thus, the jury should have also been instructed on the lesser included offense of misdemeanor sexual battery (PC 243.4(e)).

Sep. 6, 2023 – In re V.C. (1st Dist., Div. 2, A166527)

Agreeing with In re Delilia D. (2023) 93 Cal.App.5th 953, the Court of Appeal finds the duty to make ICWA inquiry of extended family members applies even if the children were not taken into “temporary custody” pursuant to WIC 306. The court adopts the In re Benjamin M. (2021) 70 Cal.App.5th 735 standard of prejudice, under which reversal is required if there was readily obtainable information that was likely to bear meaningfully upon whether the child is an Indian child.

Sep. 5, 2023 – In re N.F. (2nd Dist., Div. 3, B318674)

The Court of Appeal finds that mother cannot use her appeal from a post-permanency WIC 388 petition to challenge the legal guardianship order and findings made at the prior WIC 366.26 hearing, including the finding that ICWA did not apply. In addition, the continuing duty of inquiry under WIC 224.2 does not apply as the child was no longer a dependent of the juvenile court.

Sep. 1, 2023 – People v. Lashon (1st Dist., Div. 3, A163074) [Ordered Depublished, Nov. 15, 2023]

The Court of Appeal holds that appellant forfeited her claim that the trial court exhibited implicit racial bias towards her trial counsel, in violation of the California Racial Justice Act (PC 745), by failing to file a motion under the CRJA in the trial court “before judgement was entered.” In so holding, the court notes that the CRJA became effective more than four months before appellant’s trial and “was made applicable to all cases then pending in the trial courts.”

Sep. 1, 2023 – People v. Harrell (4th Dist., Div. 2, E080838)

Effective January 1, 2023, SB 1209 amended PC 1170.91 (regarding resentencing for military trauma) to specify that a defendant is eligible for resentencing “regardless of whether the original sentence was imposed after a trial or plea.” In light of this amendment and the accompanying legislative history, the Court of Appeal holds that a defendant is now eligible for resentencing under PC 1170.91 even where they entered a plea agreement with a stipulated sentence, and that a resentencing court may modify a stipulated sentence without giving the prosecution an opportunity to withdraw from the plea agreement.

Sep. 1, 2023 – People v. Jenkins (4th Dist., Div. 1, D081246)

The Court of Appeal reverses the trial court’s order recommitting appellant as an offender with a mental health disorder because substantial evidence did not support the finding that she represented a substantial danger of physical harm to others as a result of her mental disorder. The court reasons that although the testifying experts identified problems with medication compliance, lack of insight, unwillingness to work with CONREP, and continuing mental health symptoms, the experts did not connect those observations with dangerous behavior.

Aug. 31, 2023 – People v. Rojas (2nd Dist., Div. 4, B325493)

In 2022, the trial court granted appellant’s PC 1172.6 petition and resentenced appellant. The Court of Appeal holds that, upon resentencing, the trial court erred by failing to calculate all the actual days appellant had spent in custody. The court also holds that, pursuant to the version of PC 2900.5 in effect at the time of the offense, appellant’s excess custody credits should have been applied to satisfy his restitution and parole revocation fines, but not the nonpunitive assessments or parole. Finally, the court finds that appellant’s conduct – starting a fight with the victim and summoning friends to the fight – supported the restitution order.

Aug. 31, 2023 – People v. Njoku (3rd Dist., C093672)

In a PC 1172.6 appeal, appellant argued that the Court of Appeal should review the record independently rather than defer to the trial court’s factual findings since the trial court’s inquiry was limited to a cold record. Adopting the reasoning of People v. Oliver (2023) 90 Cal.App.5th 466, the Court of Appeal disagrees and affirms.

Aug. 31, 2023 – People v. Doron (4th Dist., Div. 1, D079799)

Effective January 1, 2023, SB 1223 amended PC 1001.36 to provide, in relevant part, that where the defendant has been diagnosed with a qualifying mental disorder, “the court shall find that the defendant’s mental disorder was a significant factor in the commission of the offense unless there is clear and convincing evidence that it was not.” The Court of Appeal holds that SB 1223’s amendments to PC 1001.36 apply retroactively to defendant’s nonfinal case and remands with instructions to reconsider defendant’s request for mental health diversion under the amended standard.

Aug. 30, 2023 – Finley v. Superior Court (1st Dist., Div. 4, A167311)

Petitioner filed a motion under the RJA (PC 745(a)(1)) alleging police showed racial bias when they stopped and searched his car. The trial court denied the motion, finding petitioner failed to show a prima facie violation of the RJA. In a case of first impression, the Court of Appeal holds the RJA prima facie standard is less stringent than in habeas proceedings and requires only a “substantial likelihood” the RJA has been violated. Finding the trial court applied the wrong legal standard and improperly weighed evidence, the Court of Appeal issues the writ directing the trial court to conduct a new hearing under the correct standard.

Aug. 30, 2023 – People v. Castaneda-Prado (1st Dist., Div. 4, A164897)

The Court of Appeal reverses defendant’s conviction where the trial court excluded evidence that a child victim believed she was helping her mother obtain a “U visa” when she accused defendant of sexual assault. The court finds that the exclusion of the evidence violated defendant’s right to confront witnesses under the federal and state constitutions and was not harmless beyond a reasonable doubt under Chapman.

Aug. 30, 2023 – People v. Ceja (4th Dist., Div.3, G061609)

Agreeing with People v. Alexander (2023) 91 Cal.App.5th 469, the Court of Appeal rejects defendant’s argument that the state law prohibiting felons from possession ammunition (PC 30305(a)(1)) is facially invalid under the Second Amendment and New York State Rifle & Pistol Assn., Inc. v. Bruen (2022) 142 S.Ct. 2111.

Aug. 25, 2023 – People v. Moyer (6th Dist., H049408)

After defendant – the head of global security for Apple, Inc. – was indicted for bribery (PC 67) for promising to donate over $50,000 in iPads to the Santa Clara County Sheriff’s Office in exchange for the release of concealed-carry licenses for his team, the trial court granted defendant’s PC 995 motion and dismissed the charge for lack of evidence of corrupt intent. The Court of Appeal reverses. The court rejects defendant’s argument that a promise to make a payment to a third party or entity may not constitute a bribe, and finds that the evidence of corrupt intent presented to the grand jury was sufficient to support the indictment.

Aug. 25, 2023 – CDCR v. Superior Court (Escobedo) (1st Dist., Div. 3, A166559)

The Court of Appeal grants CDCR’s mandate petition challenging a plea agreement under which defendant, a lifetime parolee, pleaded guilty to criminal threats (PC 422) and was placed on felony probation, and the DA withdrew two pending parole revocation petitions, one filed by the DA and the other by CDCR. The court reasons that the DA lacked the authority to withdraw the revocation petition filed by CDCR, and that because PC 3000.08(h) requires that a lifetime parolee be returned to prison upon conviction for a new offense, the trial court lacked the authority to place defendant on probation following his guilty plea.

Aug. 24, 2023 – People v. Martinez (Supreme Ct., S267138)

A California Department of Insurance regulation prohibits bail bond agents from entering agreements with jail inmates to be notified when individuals have been arrested and may thus be in need of bail bond services. The Court of Appeal found the regulation was facially unconstitutional under the First Amendment and reversed defendant’s conviction on that ground. The Supreme Court reverses, finding that “the Court of Appeal failed to consider the full range of interests at stake when a commercial bail bond agent engages the services of a jail inmate to gain private access to information about prospective clients.”

Aug. 24, 2023 – People v. Miller (3rd Dist., C097229)

After defendant was charged with carrying a concealed firearm in a vehicle (PC 25400(a)(1)), the trial court sustained her demurrer arguing that the charge was unconstitutional under New York State Rifle & Pistol Assn., Inc. v. Bruen (2022) 142 S.Ct. 2111. The Court of Appeal reverses. The court reasons that even if California’s firearm licensing statutes are unconstitutional, “the constitutionality of [PC 25400(a)(1)] is not dependent upon the constitutionality of [the] licensing statutes because, while a license qualifies a holder for an exemption from [PC 25400(a)(1)], the availability of this exemption is not constitutionally necessary.”

Aug. 24, 2023 – In re T.F.-G. (6th Dist., H050112)

The Court of Appeal rejects defendant’s argument that the offense of carrying a loaded firearm in public without a license (PC 25850) is unconstitutional under the U.S. Supreme Court’s decision in New York State Rifle & Pistol Assn., Inc. v. Bruen (2022) 142 S.Ct. 2111. The court reasons that despite the unconstitutionality of California’s “good cause” requirement for issuance of a license (PC 26150), the constitutional defect reaches only a narrow subset of cases to which PC 25850 applies and the statute is thus not in “total and fatal” conflict with the Second and Fourteenth Amendments.

Aug. 23, 2023 – In re Andres R. (4th Dist., Div. 2, E079972)

The Court of Appeal affirms the jurisdictional and dispositional orders. As to ICWA, agreeing with its prior decisions in Robert F. and JaO., the court finds that the expanded duty of initial inquiry imposed by WIC 224.2(b) is triggered only by warrantless removals [pursuant to WIC 306]. Accordingly, there was no ICWA error. The court disapproved CRC 5.481(a) to the extent it expanded the duty of initial inquiry beyond the limits imposed by the Legislature. Concurring opinion disagreeing with the majority’s interpretation of WIC 224.2(b).

Aug. 21, 2023 – In re R.F. (4th Dist., Div. 2, E079941)

The Court of Appeal reverses the order summarily denying appellant paternal grandparents’ WIC 388 petition, finding a prima facie showing was made that they were not properly notified of the children’s emergency removals. The matter is remanded to the juvenile court with directions to hold a notice hearing pursuant to WIC 366.26(n) to determine whether the emergency removals should be made permanent based on the children’s circumstances and best interests at the time of the hearing following remand.

Aug. 17, 2023 – People v. Mumin (Supreme Ct., S271049)

The Supreme Court holds that, in deciding whether a kill zone instruction was properly given under People v. Canizales (2019) 7 Cal.5th 591, a reviewing court should assess whether the evidence supported a jury determination that the only reasonable inference was that the defendant intended to kill everyone in the zone of fatal harm. The court rejects the argument that the reviewing court should instead assess for itself whether the only reasonable inference was that the defendant intended to kill everyone in that zone. In a concurring opinion joined by Justice Evans, Justice Liu advocates for “eliminating the kill zone instruction.”

Aug. 17, 2023 – People v. Schuller (Supreme Ct., S272237)

The Supreme Court holds that, where the record contains substantial evidence of imperfect self-defense, the trial court’s failure to instruct on that theory is federal constitutional error and thus subject to prejudice review under the Chapman standard. The court reasons that the omission of the instruction constitutes an incomplete instruction on an element of the offense, as the prosecution is required to prove malice (and disprove imperfect self-defense) for the defendant to be convicted of murder.

Aug. 16, 2023 – People v. Superior Court (Mitchell) (2nd Dist., Div. 6, B326653)

The Court of Appeal holds that PC 1228(a)(1) and (a)(8) authorize the People to appeal a trial court’s post-preliminary hearing, pretrial order reducing a felony wobbler to a misdemeanor, because such an order is “unauthorized and tantamount to a dismissal of the felony offense.” The court further finds that the trial court lacked authority to reduce the felony wobbler to a misdemeanor under PC 17(b); therefore, the court issues a writ of mandate directing the trial court to vacate its order and reinstate the felony charge.  

Aug. 16, 2023 – Statement Dissenting From Order Denying Review – People v. Meza (S280089, B31810)

The Court of Appeal found that a “geofence” warrant directing Google to reveal the location of appellants’ cell phones lacked the particularity required by the Fourth Amendment and was impermissibly overbroad, but the court nevertheless concluded that the warrant did not violate CalECPA and that suppression was inappropriate under the the good faith exception. In a statement dissenting from the order denying review, Justice Liu, joined by Justice Evans, states that he finds the Court of Appeal’s interpretation of CalECPA “questionable,” and that he would grant review given the “practical importance of the issue.”

Aug. 15, 2023 – Torres v. Superior Court (3rd Dist., C097144)

A peremptory challenge to a trial judge under CCP 170.6 that is otherwise untimely may be brought, under subdivision (a)(2) of the statute, “following reversal on appeal of a trial court’s decision … if the trial judge in the prior proceeding is assigned to conduct a new trial on the matter.” The Court of Appeal denies petitioner’s writ of mandate, holding that petitioner’s peremptory challenge was untimely because a remand in connection with a reversal of a summary denial of a PC 1172.6 petition does not constitute a remand for a “new trial” under CCP 170.6(a)(2).

Aug. 14, 2023 – People v. Gray (Supreme Ct., S269237)

The Supreme Court holds that, in a probation revocation hearing, hearsay that qualifies as a spontaneous statement under EC 1240 is not automatically admissible. The court reasons that the defendant in such a hearing has a due process right to confront witnesses, which requires the court to balance the defendant’s confrontation interests against the government’s showing of good cause.

Aug. 9, 2023 – People v. Davisbragdon (Orange County App. Div., 21NM14212)

The appellate division reverses defendant’s misdemeanor conviction due to the violation of his right to a speedy trial where the trial was delayed without good cause because defendant was not transported to court. The court reasons that PC 1387‘s prohibition on refiling dismissed misdemeanor charges establishes that defendant was prejudiced by the speedy trial violation.

Aug. 7, 2023 – People v. Vance (4th Dist., Div. 2, E079750)

In a PC 1172.6 appeal, the Court of Appeal holds that the challenge to the trial court’s erroneous reliance on the appellate opinion at the evidentiary hearing was forfeited for lack of objection, and that the appellate opinion constituted inadmissible but substantial evidence in the absence of any objection. The court further holds that a trial court’s erroneous application of an unduly low burden of proof is reversible only if appellant shows it is reasonably probable, in the absence of the error, he or she would have enjoyed a more favorable outcome.

Aug. 4, 2023 – People v. Wheeler (Los Angeles County App. Div., 9CJ0031503)

The appellate division reverses the trial court’s order dismissing the misdemeanor charges related to defendant’s rental of property to an unlicensed cannabis business. The court reasons that because the municipal code sections in question are strict liability offenses, defendant’s belief that the business was licensed was not a defense.

Note: This case is related to Wheeler v. Appellate Division (S272850).

Aug. 4, 2023 – People v. Vaesau (1st Dist., Div. 1, A165925)

Following the recall of the San Francisco DA, the trial court granted the new DA’s motion to withdraw a PC 1172.1 resentencing request filed under the former DA, even though the new DA did not offer a reason for the motion except to state that the PC 1172.1 request was “very thin on the record.” The Court of Appeal reverses and remands, explaining that, while a trial court may grant a DA’s motion to withdraw a PC 1172.1 request, the motion “must be based on a legitimate reason,” and the court’s ruling on the motion “must be guided by PC 1172.1’s objectives and the defendant’s due process rights.”

Aug. 3, 2023 – In re J.P. (4th Dist., Div. 2, E080284)

The juvenile court dismissed just a portion (the most recent offense) of a minor’s WIC 602 petition in order to commit the minor to an SYTF, which, pursuant to WIC 875(a)(2), can only be done if “the most recent offense for which the juvenile has been adjudicated” is listed under WIC 707(b). The Court of Appeal holds that, much like PC 1385 in the criminal context, WIC 782 authorizes a juvenile court to dismiss a WIC 602 petition “in whole or in part.”  

Aug. 3, 2023 – In re A.B. (1st Dist., Div. 5, A165499)

The juvenile court granted appellant’s initial petition to seal his juvenile records under WIC 781. But when appellant filed another petition, this time listing additional agencies that had access to his records yet were not listed in the initial petition or sealing order, the court denied the petition on the ground that it lacked the authority to grant a subsequent petition. The Court of Appeal reverses, reasoning that WIC 781 does not bar a subsequent petition, and that where “a rehabilitated juvenile offender is eligible for WIC 781 relief, no purpose is served by permanently barring them from correcting an omission in the initial petition.”

Aug. 2, 2023 – People v. Del Rio (4th Dist., Div. 1, D080369)

After granting defendant’s PC 1172.6 petition based on the DA’s concession that defendant was entitled to relief since the transcript of his 1978 jury trial was unavailable, the trial court granted the DA’s request for defendant to be resentenced to robbery, even though he was never charged with robbery. The Court of Appeal reverses, finding that the trial court violated defendant’s due process rights by resentencing him to robbery without proper notice, and that the hearsay statements in the probation report cited by the DA were not sufficiently reliable to provide substantial evidence supporting the robbery conviction.

Aug. 1, 2023 – People v. Gruis (1st Dist., Div. 3, A165298)

The trial court placed defendant on probation for possession of child pornography (PC 311.11(a)) and imposed a condition prohibiting him from possessing any “pornographic” materials. The Court of Appeal holds the condition is unconstitutionally vague and orders that it be stricken or modified. The court does not rule on defendant’s argument that the condition is overbroad (in that it infringes on his right to possess sexual materials involving adults) but encourages the trial court on remand to consider whether prohibiting defendant from possessing such materials is closely tailored to the interests of public safety and rehabilitation.

Jul. 31, 2023 – People v. Suggs (3rd Dist., C096555)

The Court of Appeal reverses the denial of defendant’s motion to suppress, where the officer stopped defendant’s car for a license plate violation but realized upon approaching that the car actually had the proper documentation displayed, yet proceeded to question defendant and a passenger and to run warrant checks on them. The court explains that “the detention became unlawful when (1) the purpose of the stop completely dissipated … and (2) the officer then made inquiries aimed at finding evidence of ordinary criminal wrongdoing.”

Jul. 28, 2023 – People v. Valle (3rd Dist., C097090)

The Court of Appeal reverses the victim restitution order where defendant was ordered to pay the victim the full purchase price of a phone, even though the phone had been returned undamaged.

Jul. 28, 2023 – Carpenter v. Superior Court (4th Dist., Div. 1, D081640)

The Court of Appeal affirms the denial of defendant’s PC 995 motion, finding the prosecution presented enough evidence to charge defendant with implied malice murder where defendant’s infant died soon after birth. Defendant argued her prosecution was prohibited by newly enacted HSC 123462 and HSC 123467 (AB 2223). The court concludes the statutes do not prohibit prosecution for “post-birth acts or omissions” that may lead to a newborn child’s death, only for in utero acts. The court also holds that “prebirth evidence” may be used by the prosecution “to demonstrate the necessary mens rea.”

Jul. 27, 2023 – Review Grant – In re Ja.O. (S280572, E079651)

“This case presents the following issue: Does the duty of a child welfare agency to inquire of extended family members and others about a child’s potential Indian ancestry apply to children who are taken into custody under a protective custody warrant?”

Jul. 27, 2023 – In re Jayden M. (2nd. Dist., Div. 2, B321967)

The Court of Appeal affirms the order bypassing mother for reunification services pursuant to WIC 361.5 (b)(10) and (11). The court holds that in assessing whether a parent made a reasonable effort to address a problem from a prior dependency, the juvenile court should consider the entire time span between the earliest time a sibling or half-sibling was removed from the parent’s custody due to that problem and the dispositional hearing in the current case.

Jul. 27, 2023 – People v. Escobedo (2nd Dist., Div. 6, B322608)

The Court of Appeal dismisses the appeals in two related cases where defendants filed resentencing petitions under PC 1172.75. In each case, the trial court denied the petition because the defendant was no longer serving a sentence including a prior-prison-term enhancement and was instead serving a sentence for an offense committed while incarcerated. The Court of Appeal finds the denial orders were not appealable, as only CDCR may initiate a PC 1172.75 resentencing. The court notes that a habeas petition is the proper procedure if an individual is confined solely because of a prior-prison-term enhancement.

Jul. 25, 2023 – People v. Leal (3rd Dist., C096463)

The Court of Appeal holds that the warrantless search of defendant’s trunk was not justified under the automobile exception of the Fourth Amendment where officers received information that a gun was likely placed under the front passenger seat of defendant’s car, but no gun was found in that location. The court reasons that the officer (1) lacked probable cause to believe the gun would be found in the trunk; (2) did not uncover contraband/evidence in the passenger compartment of the car that generated probable cause to search the trunk; and (3) lacked probable cause as to the entire car.

Jul. 25, 2023 – People v. Lopez (4th Dist., Div. 2, E080032)

Defendant’s original direct appeal in 2020 resulted in a reversal for resentencing under SB 620 and SB 1393. On remand in 2022, the trial court struck a prior serious felony enhancement pursuant to SB 1393 but refused to consider defendant’s argument that there was insufficient evidence to support one of his gang enhancements in light of AB 333. In a 2-1 decision, the Court of Appeal affirms, reasoning that because it “had reversed solely with respect to the sentence and directed the trial court to resentence defendant, the trial court did not have jurisdiction to reconsider the gang enhancement.”

Jul. 25, 2023 – People v. G.A. (1st Dist., Div. 3, A164980)

The trial court granted a petition to extend appellant’s commitment under WIC 6500, which authorizes the commitment of a person with a developmental disability found to be “a danger to self or others.” While dismissing the appeal as moot in light of the expiration of the recommitment, the Court of Appeal rejects the argument that due process requires proof of a recent overt act for a finding of dangerousness under WIC 6500. The court also finds that substantial evidence did not support the finding of dangerousness to others, but declines to rule on whether substantial evidence supported the finding of dangerousness to self.

Jul. 24, 2023 – People v. Pickett (2nd Dist., Div. 1, B320892)

The Court of Appeal affirms the prima facie denial of defendant’s PC 1172.6 petition, where defendant was convicted by plea and the trial court relied on the preliminary hearing transcript in finding that defendant was the sole and actual killer. The court explains, “[W]here … the People introduce without objection uncontroverted evidence from the preliminary hearing transcript showing that the defendant acted alone in killing the victim, and the defendant does not put forth, by way of briefing or oral argument, any factual or legal theory in support of his petition, the defendant has failed to make a prima facie showing for relief.”

Note: A similar issue is the pending in the California Supreme Court in People v. Patton (S279670).

Jul. 21, 2023 – Estrada v. Superior Court (2nd Dist., Div. 4, B325769)

The Court of Appeal holds that a party who obtains a reversal of an order denying a PC 1172.6 petition is not entitled to a postappeal peremptory challenge (CCP 170.6) of the judge who denied the petition. The court reasons that a PC 1172.6(d)(3) hearing following such a reversal does not qualify as a “new trial” within the meaning of PC 170.6(a)(2). The court denies defendant’s petition for writ of mandate.

Jul. 21, 2023 – In re Delila D. (4th Dist., Div. 2, E080389)

The Court of Appeal holds that the Legislature enacted WIC 224.2(b) to impose on departments a broad duty to inquire that applies regardless of how a child is initially removed from the home. Disagreeing with In re Robert F. (2023) 90 Cal.App.5th 492, the court states there is no practical difference between children taken by warrant and those taken without a warrant, so there is no reason to distinguish between them for ICWA inquiry purposes. The dissenting opinion finds WIC 224.2(b) is only applicable when the child is placed in temporary custody pursuant to WIC 306, not WIC 340.

Jul. 20, 2023 – People v. Carney (Supreme Ct., S260063)

In a case involving a gang-related shootout, the Supreme Court holds that, although neither defendant fired the fatal shot, their first-degree murder convictions are consistent the court’s holding in People v. Sanchez (2001) 26 Cal.4th 834 because their “life-threatening deadly actions [during the shootout] constituted proximate cause.”

Jul. 20, 2023 – In re M.D. (4th Dist., Div. 1, D081568)

The Court of Appeal affirms the jurisdictional and dispositional findings. The court finds WIC 300(b)(2)(C) was inapplicable where indigence was not the sole factor placing the minor at risk of harm. Jurisdiction was proper based on factors other than indigence alone. As to disposition, substantial evidence supports the finding that there was a risk of danger if the minor was returned and there were no reasonable means to protect the minor without removal.

Jul. 19, 2023 – People v. Session (4th Dist., Div. 3, G060536)

The Court of Appeal affirms the denial of a suppression motion where an officer placed a GPS tracking device on defendant’s vehicle without first obtaining a warrant. The officer testified he knew defendant was on parole, but did not testify how he obtained this information or whether he obtained it from official sources. The court holds the search was lawful, as there was no requirement that information about defendant’s parole status be obtained from official sources, and the search was not arbitrary or harassing. The court also finds that any failure to bifurcate the gang allegations under PC 1109 (AB 333) was harmless.

Jul. 19, 2023 – Review Grant – People v. Collins (S279737, B322744)

“The court limited review to the following issue: Does sufficient evidence support defendant’s conviction for second degree murder based on a failure to protect?”

Jul. 18, 2023 – People v. Marquez (4th Dist., Div. 1, D080411)

The Court of Appeal affirms the trial court’s victim restitution order, rejecting defendant’s argument that, under People v. Arbuckle (1978) 22 Cal.3d 749, the same judge who accepted her guilty plea and sentenced her to prison should have also been the judge to determine victim restitution. The court reasons that “although a victim restitution award is ultimately included in a defendant’s sentence, determination of the amount of restitution is outside the scope of discretionary sentencing choices which are an inherently significant factor in the defendant’s decision to enter a guilty plea.”

Jul. 18, 2023 – People v. Antonelli (2nd Dist., Div. 6, B321947)

The Court of Appeal affirms the trial court’s denial at the prima facie stage of appellant’s petition for resentencing pursuant to PC 1172.6, where appellant was convicted of provocative act murder. The court reasons that because a conviction for provocative act murder cannot be premised on malice imputed to the defendant based solely on their participation in a crime, PC 1172.6 (as amended by SB 775) does not apply.

Jul. 17, 2023 – People v. Sloan (3rd Dist., C095622)

Agreeing with Needham v. Superior Court (2022) 82 Cal.App.5th 114, the Court of Appeal finds that the trial court erred in allowing the prosecution to use a privately retained expert to testify at defendant’s SVP trial. The court reverses the order committing defendant to DSH as an SVP and remands with instructions to issue an order excluding the testimony of the prosecution’s privately retained expert and to conduct a new trial.

Note: This issue is currently pending in the California Supreme Court at Needham v. Superior Court (S276395).

Jul. 14, 2023 – People v. Gyorgy (4th Dist., Div. 3, G061567)

The Court of Appeal reverses the order denying defendant’s motion to suppress (PC 1538.5), finding the officer subjected defendant to a prolonged traffic stop. The court holds, per Rodriguez v. United States (2015) 575 U.S. 348, that the officer “detoured from the traffic stop’s mission almost immediately” when he deployed a dog sniff of the vehicle’s exterior and did not perform any routine traffic stop tasks, such as running defendant’s driver’s license and registration; instead, the officer spent almost 12 minutes “performing tasks unrelated to the traffic stop’s mission.”

Jul. 14, 2023 – People v. Kimble (3rd Dist., C097389) [Ordered Depublished, Oct. 5, 2023]

In 2008, defendant was convicted of stalking and, based on the law at the time, sentenced as a third-strike offender to 25 years to life, plus a one-year prior-prison-term enhancement (PC 667.5(b)). In 2013, defendant’s Prop 36 resentencing petition was denied on public safety grounds. The Court of Appeal rejects defendant’s argument that, at his 2022 resentencing under SB 483 and PC 1172.75, the trial court was required to resentence him as a second-strike offender since stalking is not a serious or violent felony. The court reasons that SB 483 does not allow a defendant to bypass the Prop 36 resentencing mechanism.

Jul. 12, 2023 – People v. Wadleigh (1st Dist., Div. 4, A165017)

The Court of Appeal affirms the denial of defendant’s motion to suppress, even though the warrant application did not include the suspected child pornography images and included an inaccurate description of one of the images. The court finds that the officer’s accurate depiction of most of the images, along with other factors, was enough to establish probable cause. The court notes, however, that “officers should, whenever possible, include images of suspected child pornography in warrant applications, particularly where, as here, a subjective evaluation is necessary to determine whether the images’ content is prohibited.”

Jul. 11, 2023 – People v. Superior Court (Tapia) (4th Dist., Div. 2, E080076)

The Court of Appeal affirms the trial court’s dismissal of defendant’s case for violation of the 60-day deadline to bring the case to trial (PC 1382). Based on data provided by the Judicial Council, the Court of Appeal finds that “the Superior Court’s chronic congestion that has existed for nearly two decades and remains unresolved to this day” was enough for the trial court to reasonably find that “[defendant’s] case could not timely be brought to trial because there was no available judge.”

Jul. 11, 2023 – People v. Garcia (2nd Dist., Div. 4, B317896)

The Court of Appeal agrees with People v. Guillory (2022) 82 Cal.App.5th 326 that PC 1172.6(d)(2) “require[s] automatic vacatur and resentencing only where a special circumstance allegation found to be not true provides the only viable ground for a murder conviction.” The court thus affirms the denial of appellant’s PC 1172.6 conviction, where at trial the jury rejected a special circumstance allegation, but at the (d)(3) hearing the trial court found appellant guilty of murder as a direct aider and abetter.

Jul. 11, 2023 – People v. Zemek (4th Dist., Div. 1, D080917)

In a 2-1 decision, the Court of Appeal holds that appellant’s right to a public trial was not violated when the courtroom was closed to the public during the COVID-19 pandemic – including to appellant’s family members – and the livestream often did not work. The court also holds that a juror’s comment about the defense strategy of delay did not indicate the juror had formed an opinion on the case prior to argument and so did not require further inquiry by the trial court. Finally, the court finds sufficient evidence to support the conviction for first-degree murder where appellant caused the death by failing to care for the victim.

Jul. 11, 2023 – People v. Arnold (2nd Dist., Div. 2, B321031)

The Court of Appeal reverses the order denying defendant’s PC 1172.6 petition, holding that, under both People v. Cooper (2022) 77 Cal.App.5th 393 and the doctrine of collateral estoppel, the trial court erred by finding that defendant stabbed the victim to death where the jury at defendant’s trial found the knife allegation not true.

Jul. 6, 2023 – People v. Madrigal (6th Dist., H046577)

On direct appeal from a pre-SB 1437 jury trial at which defendant was convicted of first-degree murder and the jury was instructed on several theories of first-degree murder including felony murder, the Court of Appeal retroactively applies SB 1437’s amendments to PC 189 and finds that the resulting instructional error was not harmless beyond a reasonable doubt. The court also finds that the trial court erred by refusing to review or release jailhouse phone calls made by a coparticipant in the underlying offense and subpoenaed by the defense.

Jul. 6, 2023 – People v. Newell (2nd Dist., Div. 6, B320195)

The Court of Appeal dismisses defendant’s appeal from the trial court’s denial of his pro per petition for resentencing under SB 483 and PC 1172.75. The court agrees with People v. Burgess (2022) 86 Cal.App.5th 375 that only CDCR may initiate a resentencing under PC 1172.75, and that the statute “does not contemplate resentencing relief initiated by any individual defendant’s petition or motion.” 

Jul. 6, 2023 – People v. Jackson (1st Dist., Div. 4, A164649)

Agreeing with People v. Canedos (2022) 77 Cal.App.5th 469 (and disagreeing with People v. Faial (2022) 75 Cal.App.5th 738), the Court of Appeal holds that where a defendant was found to have committed a probation violation more than two years after being placed on probation, but before AB 1950 took effect, AB 1950’s amendments to PC 1203.1 apply retroactively to terminate the defendant’s probation prior to the violation. The court reverses the order revoking and terminating defendant’s probation.

Note: This issue is currently pending in the California Supreme Court in People v. Faial (S273840).

Jul. 5, 2023 – People v. Hilburn (4th Dist., Div. 1, D080175)

The Court of Appeal holds that the trial court’s imposition of the middle term, instead of the presumptive lower term per PC 1170(b)(6) as enacted by AB 124, did not violate defendant’s Sixth Amendment jury trial right, despite the fact that in imposing the middle term the trial court relied on aggravating factors that were not found true beyond a reasonable doubt or stipulated to by defendant. The court reasons that imposition of the middle term in this context does not implicate Sixth Amendment concerns because PC 1170(b)(6) “creates a potential reduced term, as opposed to an increased term.”

Jul. 5, 2023 – People v. Gaines (5th Dist., F083168)

In a case where defendant A fired multiple shots upon exiting a car defendant B was driving, and defendants were convicted at trial of various offenses including attempted murder and discharging a firearm from a vehicle (PC 26100), the Court of Appeal finds sufficient evidence that defendant A fired the shots “from the vehicle” within the meaning of PC 26100. The court also rejects defendants’ other challenges to their convictions, but remands for resentencing in light of SB 567’s amendments to PC 1170(b).

Jul. 3, 2023 – In re D.L. (1st Dist., Div. 2, A164432)

The Court of Appeal rejects minor’s argument that the offense of carrying a loaded firearm in public without a license (PC 25850, 26010) was rendered unconstitutional by New York State Rifle & Pistol Assn., Inc. v. Bruen (2022) 142 S.Ct. 2111. The court reasons that although California’s licensing scheme includes a “good cause” requirement similar to the “proper cause” requirement found unconstitutional in Bruen, the requirement is severable and thus does not render the scheme unconstitutional. The court rejects minor’s argument that “severability cannot be applied retroactively to cure the harm from a pre-Bruen conviction.”

Jul. 3, 2023 – People v. Hernandez (2nd Dist., Div. 8, B315243)

The Court of Appeal affirms the trial court’s order requiring defendant to refile his motion to vacate under PC 1473.7 in the county where he was originally convicted and sentenced, rather than in the county to which his probation supervision was transferred under PC 1203.9. After reviewing the legislative history, the court concludes the phrase “full jurisdiction” in PC 1203.9(a)(3) does not “remove the authority of the original sentencing court from everything associated with the case,” and “refers only to matters relating to the probationary sentence.”

Jul. 3, 2023 – Price v. Superior Court (4th Dist., Div. 2, E078954)

Defendant sought writ relief after his motions to suppress a “geofence” warrant and to set aside the information were denied. The Court of Appeal denies the writ, finding the warrant “satisfied the probable cause and particularity requirements of the Fourth Amendment and was not overbroad; it was reasonably and narrowly drawn in geographic scope and time period to capture the location data of only suspects and witnesses.” The court also finds the People’s violations of CalECPA’s notice requirements (PC 1546.2) do not require suppression because successive notice extensions would have been granted had the People asked.

Jun. 30, 2023 – In re D.P. (4th Dist., Div. 1, D081396)

Preliminarily, the Court of Appeal finds de facto parents have standing and are proper parties to the appeal. The siblings’ adoptive parents did not argue relative placement in the juvenile court and it was therefore forfeited on appeal. Even if the issue had been preserved, the siblings’ adoptive parents are not entitled to consideration under WIC 361.3 (the relative placement preference) because they are not relatives under the statute. The juvenile court did not abuse its discretion when it denied the siblings’ adoptive parents’ WIC 388 petition.

Jun. 30, 2023 – People v. Fletcher (4th Dist., Div. 2, E077553)

The Court of Appeal holds that AB 333’s amendments to PC 186.22 apply retroactively to defendants’ case and reverses their gang convictions and enhancements. The court also holds, however, that AB 333 does not require reversing prior serious felony enhancements or prior strike allegations predicated on violations of PC 186.22. The court reasons that under Prop 21 and Prop 36, the definition of a serious felony is “locked in” as of Prop 36’s effective date in 2012, meaning that “AB 333 can only apply [to prior serious felony convictions] if it satisfies Prop 36’s amendment requirements,” which it does not.

Jun. 29, 2023 – People v. Reyes (Supreme Ct., S270723)

In a case where defendant was convicted of second-degree murder based on a shooting that he was present for, but that was committed by another gang member, the Supreme Court reverses the post-OSC denial of defendant’s PC 1172.6 petition. The court finds insufficient evidence for a finding that defendant was the direct perpetrator of the murder. The court also finds that, to the extent the trial court relied on a theory of aiding and abetting implied malice murder, it applied the wrong standard. The court adopts the standard set out in People v. Powell (2021) 63 Cal.App.5th 689 for aiding and abetting implied malice murder.

Jun. 29, 2023 – People v. Curiel (2nd Dist., Div. 8, B317814)

The Court of Appeal reverses the denial of defendant’s motion to vacate under PC 1473.7. The court finds that although defendant was expressly advised in her written plea waiver form and by the trial court to “expect” that the plea would result in deportation, defense counsel was still required to competently advise defendant on the immigration consequences of the plea, and the evidence showed that counsel did not do so. The court further finds that the evidence showed that defendant would have rejected the plea had she meaningfully understood its adverse immigration consequences.

Jun. 28, 2023 – People v. Achane (1st Dist., Div. 2, A165968)

In 2020, defendant was placed on probation with execution of an upper-term sentence suspended. In 2022, months after the amendments to PC 1170 made by AB 124 and SB 567 took effect, the trial court terminated probation and imposed the upper-term sentence, plus two consecutive terms for two other cases. The Court of Appeal finds that defendant forfeited his request for resentencing under AB 124 and SB 567 by failing to raise the issue below. The court rejects defendant’s arguments that the upper-term sentence was unauthorized, and that an objection would have been futile.

Jun. 28, 2023 – Review Grant – People v. Patton (S279670, B320352)

“This case presents the following issue: Did the trial court engage in impermissible judicial factfinding by relying on the preliminary hearing transcript to deny defendant’s Penal Code section 1172.6 petition at the prima facie stage? (See People v. Lewis (2021) 11 Cal.5th 952.)”

Jun. 26, 2023 – People v. Codinha (4th Dist., Div. 1, D080633)

Disagreeing with People v. King (2022) 77 Cal.App.5th 629, the Court of Appeal holds that “a trial court’s inherent authority to correct an unauthorized sentence allows it to modify a final judgment in response to a notice from [CDCR] that a sentence does not contain a legally required component,” including by increasing the aggregate prison term. The court further holds that “the proper remedy [in this situation] is a full resentencing hearing where, as here, the sentence includes multiple components and the trial court exercised discretion at the original sentencing hearing to impose a nonmaximum aggregate prison term.”

Jun. 26, 2023 – People v. Falcon (5th Dist., F083577)

The Court of Appeal holds that remand for resentencing is required where multiple upper terms were imposed but stayed prior to passage of SB 567. The court agrees with People v. Lewis (2023) 88 Cal.App.5th 1125 and adopts the “clear indication” test articulated in People v. Gutierrez (2014) 58 Cal.4th 1354 to determine whether remand for resentencing would be futile.

Note: This issue is currently pending in the California Supreme Court in People v. Lynch (S274942).

Jun. 26, 2023 – People v. Prudholme (Supreme Ct., S271057)

Where the defendant entered into a plea bargain for a specific period of probation, the Supreme Court holds that AB 1950 applies retroactively, and that “the proper remedy is to modify the probationary term to conform with the new law while maintaining the remainder of the plea agreement.” The court reasons that, in enacting AB 1950, the Legislature intended to exercise its own authority to change the terms of existing plea bargains (see PC 1016.8(a)), and that the goals of the legislation would be thwarted if the prosecution could withdraw from the plea bargain.

Jun. 23, 2023 – Samia v. United States (U.S. Supreme Ct., 22-196)

The U.S. Supreme Court curtails application of Bruton in joint trials and allows admission of a non-testifying co-d’s statement, where the statement is modified to refer to a generic “other person” and the jury is instructed to consider the statement only as to the non-testifying co-d. The court distinguishes Gray v. Maryland (1998) 523 U.S. 185 on the ground that, unlike a redacted co-d’s statement with a conspicuous deletion of the other defendant’s name, a generic reference to an “other person” does not directly implicate the other defendant and may cause prejudice only “inferentially.” Justices Kagan, Sotomayor, and Jackson dissent.

Jun. 23, 2023 – Yedinak v. Superior Court (4th Dist., Div. 2, E080685)

The Court of Appeal grants petitioner’s writ of mandate challenging the trial court’s denial of bail where defendant had been released on bail for over two years, had made all court appearances, and had not violated any conditions of his release. The Court of Appeal finds that the trial court failed to consider all factors required under the article I, section 12 of the California Constitution and In re Humphrey (2021) 11 Cal.4th 135, and that the record is not clear that the court understood and applied the clear and convincing evidence standard.

Jun. 22, 2023 – People v. Lewis (Supreme Ct., S272627)

The Supreme Court holds that the force or fear element of the offense of kidnap to commit rape (PC 209(b)) incorporates a “relaxed standard of force” where the victim is intoxicated and unable to consent. “The quantum of force required is no greater than the amount of physical force required to take and carry the victim away a substantial distance.” The court concludes that although the jury may have been improperly instructed on a theory of kidnapping by deception, any error was harmless given the fact that defendant moved the victim by driving her.

Jun. 20, 2023 – People v. Tilley (3rd Dist., C096411)

The Court of Appeal finds that defendant forfeited his claim that the trial court erred by failing to consider the low-term presumption of PC 1170(b)(6). The court explains that defendant did not raise PC 1170(b)(6), object to the middle term, or argue that he suffered “psychological trauma as a result of mental illness.” The court rejects defendant’s backup IAC claim, finding no prejudice. The court also finds that the trial court’s inaccurate advisement that defendant would be subject to a 3-year (rather than a 2-year) parole term does not require correction, as the advisement did not result in an actual lengthening of the parole term.

Jun. 20, 2023 – In re H.B. (2nd Dist., Div. 8, B322472)

The Court of Appeal finds that “extended family members” as defined in WIC 224.2(b) does not require that steprelatives be interviewed about possible Indian ancestry. Furthermore, the Department’s inquiry was adequate as it interviewed two generational levels of H.B.’s family and contacted every person its interviewees identified as a likely source of information about ancestry.

Jun. 16, 2023 – In re Damari Y. (1st Dist., Div. 2, A166037)

The Court of Appeal finds the juvenile court erred when it denied father’s request for an evidentiary hearing on his WIC 388 petition challenging the termination of his reunification services. The court notes the unusual circumstances of the case, as the entire proceeding took place during the pandemic, and father was incarcerated in three different facilities and was represented by multiple attorneys who had difficulty contacting him. The matter is remanded with directions to promptly schedule an evidentiary hearing on the merits of father’s WIC 388 petition.

Jun. 15, 2023 – Rodas-Gramajo v. Superior Court (1st Dist., Div. 3, A166375)

The Court of Appeal holds that a motion to set aside the information (PC 995) is the appropriate procedure to challenge a holding order for a gang enhancement under PC 186.22(b)(1) where the statute was amended after the preliminary hearing by AB 333, and the evidence presented at the hearing was insufficient to support the enhancement under the statute as amended. The court further holds, however, that because the defects in the evidence were minor errors of omission, the trial court properly allowed the prosecution to reopen the hearing under PC 995a and present additional evidence.

Jun. 14, 2023 – People v. Ocegueda (4th Dist., Div. 3, G061077)

Where defendant was convicted of first-degree murder, the Court of Appeal holds that there was sufficient evidence of premeditation and that the jury was properly instructed on provocation and premeditation. The court finds that, taken together, the instructions (CALCRIM 521, 522, 570) did not result in confusion about the elements required for first-degree murder and voluntary manslaughter and whether an objective or subjective standard applied to defendant’s mental state.

Jun. 14, 2023 – People v. Waqa (1st Dist., Div. 1, A163761)

The Court of Appeal finds insufficient evidence that defendant’s movement of the victim from a public restroom’s small stall to its large stall “substantially increased the risk of harm to the victim over and above that level of risk necessarily inherent in the underlying offense,” as required by the asportation element of the One Strike law’s aggravated kidnapping circumstance (PC 667.61(d)(2)). The court reduces defendant’s sentence from 25 years to life under the aggravated kidnapping circumstance to 15 years to life under the simple kidnapping circumstance (PC 667.61(e)(1)).

Jun. 14, 2023 – People v. Farias (3rd Dist., C094195)

The Court of Appeal vacates defendants’ strike sentences upon finding no indication in the record that the trial court actually made strike findings at a bifurcated bench trial at which no parties were present. The court vacates the strike sentences “without prejudice as to the trial court’s ability to correct the judgment if the omission is shown to be purely a clerical error.” The court also specifies that on remand that trial court must consider whether one defendant’s prior conviction under PC 186.22(a) still qualifies as a strike under PC 186.22(a) as amended by AB 333.

Jun. 8, 2023 – People v. Wilson (Supreme Ct., S189373)

In an appeal from a death sentence retrial, the Supreme Court affirms appellant’s sentence, concluding that retrying the penalty phase of a capital trial after the original death judgment is reversed for legal error does not violate double jeopardy principles or due process. The court also holds that the trial court did not err by failing to hold a Marsden hearing or inquire about defense counsel’s conflict of interest upon learning appellant had raised IAC claims in a pending habeas petition. Finally, the court finds that any retroactive error from SB 1437’s ameliorative changes was harmless.  

Jun. 5, 2023 – People v. Odell (2nd Dist., Div. 8, B319448)

The Court of Appeal holds that the offense of felon in possession of a firearm (PC 29800(a)(1)) was not rendered unconstitutional by the U.S. Supreme Court’s recent decision in New York State Rifle & Pistol Assn., Inc. v. Bruen (2022) 142 S.Ct. 2111. The court also rejects defendant’s arguments that: (1) the prosecutor prejudicially erred by incorrectly arguing that the provocation necessary for heat-of-passion voluntary manslaughter must be sufficient to cause an average person to kill; and (2) the trial court was required to instruct on self-defense and involuntary manslaughter.

Jun. 5, 2023 – People v. Braden (Supreme Ct., S268925)

The Supreme Court holds that a request for mental health diversion under PC 1001.36 “must be made before attachment of jeopardy at trial or the entry of a guilty or no contest plea, whichever occurs first.” The court thus finds that defendant’s request for mental health diversion after the jury found him guilty was untimely. Justice Evans, joined by Justice Liu, dissents.

Jun. 2, 2023 – People v. Hodges (2nd. Dist., Div. 6, B323199)

After the trial court denied defendant’s motion to vacate his long-final sentence, defendant appealed, and appellate counsel filed a no-issues brief requesting an independent review. Describing the motion to vacate as “a habeas petition masquerading as a postjudgment motion,” the Court of Appeal dismisses the appeal for lack of jurisdiction.

May 31, 2023 – People v. Cody (4th Dist., Div. 3, G060218)

The Court of Appeal affirms the denial of appellant’s PC 1172.6 petition, rejecting appellant’s arguments that the trial court improperly relied on the trial transcripts and applied the wrong burden of proof at the (d)(3) hearing, and that there not was substantial evidence that appellant was a major participant and acted with the reckless indifference to human life. In finding substantial evidence, the Court of Appeal finds that neither a federal court’s order vacating the jury’s felony-murder special-circumstance finding based on instructional error, nor the prosecution’s decision to not retry the allegation, materially impacts the analysis.

May 30, 2023 – Garcia v. Superior Court (4th Dist., Div. 2, E080436)

The Court of Appeal holds that a peremptory challenge to a judge under CCP 170.6 was untimely where the relevant proceeding, a habeas petition relating to defendant’s inadequate medical treatment in the county jail, was a continuation of the underlying criminal case. The court reasons that even though the habeas petition did not relate to a criminal judgment, defendant had raised the same pretrial confinement issues in the context of the criminal case.

May 30, 2023 – In re Van Houten (2nd Dist., Div. 1, B320098)

Petitioner was sentenced to 7 years to life for a 1969 double-murder she committed with other members of Charles Manson’s cult. After the parole board found her suitable for parole, the Governor reversed – the fourth time a governor had reversed her parole. In a 2-1 decision, the Court of Appeal grants her petition for writ of habeas corpus and reinstates her parole, finding that, even under the deferential “some evidence” standard, the Governor’s stated reasons for reversal were not adequately supported by the evidence.

May 25, 2023 – People v. Cooper (Supreme Ct., S273134)

While appellant’s appeal was pending, AB 333 amended PC 186.22’s definition of a “criminal street gang” to require proof that the alleged predicate offenses must have “commonly benefited” the gang in a “more than reputational” manner. The Supreme Court vacates appellant’s gang and firearm enhancements, finding that the absence of a jury instruction on this new requirement was not harmless beyond a reasonable doubt. The court reasons that the jury could have concluded that the predicate offenses, each of which was committed by an individual gang member, were committed for personal gain.

May 25, 2023 – McKneely v. Superior Court (1st Dist., Div. 2, A166307)

PC 1372 governs the procedure for determining whether a criminal defendant’s competency has been restored following a finding of incompetency under PC 1370. The Court of Appeal holds that PC 1372(c)(2)’s requirement that a trial court’s rejection of a certificate of restoration of competency be based on a written evaluation by a licensed psychologist or psychiatrist is constitutional, where the court refused to reject the restoration certificate based solely on trial counsel’s declaration. The requirement that an expert be appointed to evaluate the defendant does not violate separation of powers or due process principles.

May 25, 2023 – People v. Catarino (Supreme Ct., S271828)

PC 667.6(d) requires a trial court to impose “full, separate, and consecutive term[s]” for certain sex offenses if the court finds that the offenses were committed “on separate occasions.” Disapproving People v. Johnson (2023) 88 Cal.App.5th 487, the Supreme Court holds that PC 667.6(d) does not violate the Sixth Amendment as construed by Apprendi, even though the statute mandates full terms, rather than one-third terms, based on judicial factfinding.

May 24, 2023 – People v. Scott (4th Dist., Div. 2, E078721)

Appellant argued there was insufficient evidence that his prior conviction qualified as a strike because of amendments made to PC 186.22 by AB 333. The Court of Appeal rejects the argument, finding that because the prior conviction was a strike on the date of conviction, it remains a strike regardless of AB 333’s amendments to PC 186.22.

Note: A similar issue is currently pending in the California Supreme Court in People v. Fletcher (S281282).

May 23, 2023 – In re Jonathan C.M. (1st Dist., Div. 2, A165931)

The Court of Appeal reverses the order terminating jurisdiction over appellant, a nonminor dependent, finding that the juvenile court failed to give any consideration to whether termination of jurisdiction was in appellant’s best interests.

May 22, 2023 – People v. Govan (2nd Dist., Div. 7, B316245)

The Court of Appeal holds that the trial court erred in requiring defendant to wear a restraint belt without making an individualized finding of safety or flight risk, where the reason for the restraint was that the trial was held in an unsecured room during the COVID-19 pandemic. The court also disagrees with People v. Caparaz (2022) 80 Cal.App.5th 669 and finds that PC 654, as amended by AB 518, applies to sentences imposed under the one strike law (PC 667.61), interpreting PC 667.61(h) as prohibiting probation but not the staying of a sentence under PC 654.

May 19, 2023 – People v. Jaime (3rd Dist., C096022)

The Court of Appeal reverses and remands for a new trial after finding the trial court erred in denying appellant’s Batson-Wheeler motion under recently enacted CCP 231.7. The court finds the prosecution failed to rebut the presumptively invalid reasons for exercising the peremptory challenge of a juror based on her negative experience with law enforcement and close relationship with someone who had been convicted of a crime. The court finds the issue was not forfeited because the record showed an objection would have been futile.

May 18, 2023 – People v. Middleton (2nd Dist., Div. 7, B312583)

The Court of Appeal holds that mistake of fact as to age is not a defense to attempted human trafficking under PC 236.1(c) when the victim is an actual minor. The court also finds that there was no instructional error on appellant’s rape-in-concert charge (PC 264.1) because the jury would have understood “forcible rape,” as used in CALCRIM 1001, to mean “rape by force.” The court therefore finds it unnecessary to resolve whether all forms of rape under PC 261(a)(2) would constitute rape by “force or violence” under PC 264.1, but encourages the Legislature to consider clarifying the language to eliminate any possible ambiguity.   

May 17, 2023 – In re S.F. (1st Dist., Div. 1, A166150)

The Court of Appeal reverses the jurisdictional findings and orders as to father and the related dispositional orders regarding removal and substance abuse testing and treatment as they were not supported by substantial evidence. Even though mother did not appeal, father’s challenges to the jurisdictional allegations are not moot since they formed the basis for the dispositional orders. The matter was remanded to the juvenile court for further proceedings consistent with the opinion.

May 17, 2023 – In re I.E. (4th Dist., Div. 2, E080223)

The Court of Appeal affirms the order terminating parental rights. The seven-year-old child’s consistent statements that she wished to be adopted demonstrated that she did not have the type of attachment with mother that would cause her to suffer detriment in the event of a termination of parental rights.

May 17, 2023 – In re Ja.O. (4th Dist., Div. 2, E079651)

The Court of Appeal finds that the Agency’s duty of inquiry under WIC 224.2(b) to ask extended family members and others who have an interest in the child about possible Indian status applies only if the child has been placed into temporary custody pursuant to WIC 306. The expanded duty of initial inquiry does not apply to a child taken into custody pursuant to a warrant under WIC 340(b).

May 16, 2023 – People v. Lepere (4th Dist., Div. 3, G061393)

The Court of Appeal affirms the denial of appellant’s motion to suppress, finding that probable cause supported the issuance of the warrant where, among other things, the officer provided a detailed description of the crime scene, summarized the DNA investigation, and outlined the FBI’s “Investigative Genealogy” technique. The court further holds that appellant forfeited his prosecutorial misconduct claim (burden shifting and misstating jury instruction) by failing to object, and that trial counsel’s failure to object did not amount to ineffective assistance because appellant did not establish prejudice.

May 16, 2023 – In re A.H. (1st Dist., Div. 2, A166532)

A nonrelative extended family member (NREFM) has an interest in a minor sufficient to authorize the filing of a WIC 388 petition. However, the NREFM lacks standing to appeal the denial of a WIC 388 petition seeking placement, as a NREFM has no legally cognizable interest in the placement of the child. The appeal is dismissed.

May 15, 2023 – People v. Portillo (2nd Dist., Div. 7, B315241)

In what it called an “analytically elusive” hearsay case, the Court of Appeal holds that testimony about advertised retail prices was admissible for the non-hearsay purpose of establishing the fair market value of stolen retail goods. A concurring opinion agrees the testimony was non-hearsay, but would have found it admissible as “circumstantial evidence of a hypothetical agreement” between a willing buyer and seller that would establish the fair market value of the merchandise.

May 11, 2023 – People v. Alexander (4th Dist., Div. 2, E078846)

The Court of Appeal holds that the state laws prohibiting felons from possessing firearms and ammunition (PC 29800(a)(1), 30305(a)(1)) are facially valid under the framework set forth in the U.S. Supreme Court’s decision in New York State Rifle & Pistol Assn., Inc. v. Bruen (2022) 142 S.Ct. 2111. The court concludes that the state action of prohibiting felons from possessing firearms and ammunition is not covered by the Second Amendment “because … only law-abiding citizens are included among ‘the people’ whose right to bear arms is protected by the [amendment].”

May 9, 2023 – People v. Hiller (1st Dist., Div. 3, A165126)

The Court of Appeal reverses the true findings on the allegation that the defendant had suffered out-of-state convictions for serious or violent felonies. The court reasons that the elements of robbery under Washington law are broader than under California law, and that the trial court could not supply the missing element by making findings of fact based on documents that supplied the factual basis for defendant’s plea, where defendant admitted only that there was a factual basis for the plea and did not admit the truth of any of the allegations in the documents.

May 9, 2023 – People v. Sherman (4th Dist., Div. 1, D080241)

Appellant petitioned for relief under PC 1170.91(b), which allows resentencing for those suffering from substance abuse related to military service. After the trial court denied relief, and while his appeal was pending, SB 1209 amended PC 1170.91 to exclude those convicted of a super strike or an offense requiring PC 290 registration. The Court of Appeal holds that regardless of whether the trial court erred, the amendment applies to cases pending on appeal and finds appellant ineligible for relief because he was convicted of offenses requiring PC 290 registration.

May 8, 2023 – In re E.W. (1st Dist., Div. 2, A165789)

The Court of Appeal finds the Agency satisfied its duty of initial inquiry under WIC 224.2(b). The Agency inquired of the parents and several extended family members on both sides of the family, an inquiry that “reliably answered” the question of whether the children were Native American.

May 8, 2023 – People v. Montanez (4th Dist., Div. 1, D079296)

In an appeal from the denial of a PC 1172.6 petition following an evidentiary hearing, the Court of Appeal holds there was sufficient evidence to support the trial court’s finding that defendant was a major participant and acted with reckless indifference, where defendant did not initiate the criminal conduct but participated in it and did not try to stop it. The court emphasizes that, while defendant did not supply or handle any weapons, he was aware of one co-defendant’s history of violence, and the crimes unfolded over a 20-minute period.

May 5, 2023 – In re C.P. (4th Dist., Div. 2, E078696)

Maternal grandparents appealed the juvenile court’s order of legal guardianship rather than adoption. The Court of Appeal finds the grandparents have standing to appeal because their fundamental interest in their relationship with the child is injuriously affected by the juvenile court’s order. The court further finds that the WIC 366.26(c)(1)(A) exception to adoption did not apply as there was no legal impediment rendering the grandparents unable to adopt.

May 4, 2023 – In re F.M. (Supreme Ct., S270907)

The Supreme Court finds that the juvenile court erred by failing to expressly designate the minor’s wobbler offense as a misdemeanor or felony (WIC 702). The court rejects the argument that the issue was forfeited, explaining that the forfeiture rule should not be applied to WIC 702 errors, as most such errors arise from the juvenile court not understanding its statutory duty to act. The court also rejects the argument that harmlessness should be assessed under Watson, holding instead that remand is required “unless the record as a whole establishes that the juvenile court was aware of, and exercised its discretion” under the statute.

May 3, 2023 – Mendoza v. Superior Court (5th Dist., F084354)

In a matter of first impression, the Court of Appeal issues a writ of mandate directing the superior court to vacate the magistrate judge’s holding order for active participation in a criminal street gang (PC 186.22(a)) and gang enhancements (PC 186.22(b)(1)), finding that AB 333 applies retroactively to the showing necessary to hold defendants to answer for these charges. The court instructs that on remand the prosecution may either move to reopen the preliminary hearing proceedings to prove the charges, or proceed without them.

Apr. 28, 2023 – People v. Bocanegra (3rd Dist., C095234)

The Court of Appeal holds that PC 30605 (possession of an assault weapon) does not violate the Second Amendment as construed by the United States Supreme Court in District of Columbia v. Heller (2008) 554 U.S. 57. The court reasons that assault weapons are “dangerous and unusual weapons” that are “not typically possessed by law-abiding citizens for lawful purposes,” and are therefore outside the scope of the Second Amendment’s guarantee.

Apr. 27, 2023 – People v. Werntz (4th Dist., Div. 1, D079771)

In an appeal from the denial of a PC 1172.6 petition, the Court of Appeal concludes the proper standard of review is substantial evidence, rejecting appellant’s request for de novo review because there was no live testimony presented at the evidentiary hearing. The court further holds that substantial evidence supported the trial court’s factual conclusion that appellant failed to protect her child and was guilty of second degree murder, and that aiding and abetting implied malice murder remains a valid theory.

Apr. 24, 2023 – People v. Fredrickson (1st Dist., Div. 5., A164803)

The trial court sentenced 23-year-old defendant to the middle term without expressly addressing the low-term presumption of PC 1170(b)(6)(B). The Court of Appeal holds that the trial court was not required to make an express finding regarding PC 1170(b)(6)(B) since nothing in the record showed that defendant’s youth was a “contributing factor” in the commission of the underlying offense.

Apr. 21, 2022 – People v. Wilson (1st Dist., Div. 5, A163165)

The Court of Appeal holds that, in the context of an evidentiary hearing under PC 1172.6, the fact that the jury could not reach a verdict on an allegation that the defendant personally used and discharged a firearm does not preclude the trial court from finding that the defendant was the actual shooter. The court distinguishes this situation from cases where the defendant’s acquittal on a firearm enhancement precluded a subsequent finding that they used a firearm.

Apr. 20, 2023 – People v. Fox (1st Dist., Div. 1, A165462)

The Court of Appeal finds appellant is entitled to a remand for resentencing under SB 567 where he received a stipulated upper term pursuant to a plea agreement. Citing the reasoning of People v. Stamps (2020) 9 Cal.5th 685, the court notes that if the trial court grants relief and sentences appellant to a lower term, the prosecutor may elect to withdraw from the plea bargain.                  

Note: This issue is currently pending in the California Supreme Court in People v. Mitchell (S277314).

Apr. 19, 2023 – People v. Coulthard (6th Dist., H049755)

The Court of Appeal holds that an international custody order qualifies as a valid custody order for purposes of PC 278 (child abduction), even if the order is not registered, and that the Hague Convention does not preempt state criminal law. The court also holds that defendant was not prevented from raising a defense when the trial court excluded expert testimony related to British family law.

Apr. 18, 2023 – In re L.C. (2nd Dist., Div. 5, B32278)

With respect to mother’s UCCJEA argument, the Court of Appeal finds forfeiture should not apply when it would be incompatible with the fundamental purposes of a statutory scheme. The juvenile court’s failure to determine mother’s home state and whether it had jurisdiction under the UCCJEA was not harmless error.

Apr. 14, 2023 – People v. Webb (4th Dist., Div. 1, D080147)

The Court of Appeal holds there was sufficient evidence that defendant had the “present ability” to commit injury and so affirms the convictions for assault with a deadly weapon (PC 245), where defendant was a double amputee but was able to somewhat move his body, had a knife, and was a few feet away from the victims.

Apr. 14, 2023 – In re S.S. (2nd Dist. , Div. 8, B318794)

The Court of Appeal finds the juvenile court failed in its duty of inquiry under WIC 224.2(b) when it never asked paternal extended family members about the possibility of Indian ancestry. The court notes that the tribes have a vital interest in a proper inquiry, and that the required inquiry is not costly and should be carried out as part of the Department’s preexisting duty to investigate extended family members. The concurring opinion expresses agreement with the prejudice framework set forth in In re K.H (2022) 84 Cal.App.5th 566. The dissenting opinion concludes that any error was harmless.

Apr. 13, 2023 – People v. Ramos (4th Dist., Div. 1, D074429)

Disagreeing with People v. Venable (2023) 88 Cal.App.5th 445, the Court of Appeal holds that EC 352.2 (AB 2799) does not apply retroactively under the Estrada rule. The court reasons that while EC 352.2 “may, in many instances, end up being beneficial to a criminal defendant in that it may result in the exclusion of evidence favorable to the People, it is not a statute that creates the possibility of lesser punishment [or] reduces criminal liability.”

Apr. 13, 2023 – Barron v. Superior Court (5th Dist., F085382)

The first prosecution against petitioner for escape by force or violence (PC 4532(b)(2)) was dismissed in the furtherance of justice under PC 1385, and the second was dismissed under PC 859b. After petitioner was charged a third time, the Court of Appeal grants his petition for writ of mandate, holding that the “good cause” exception to the two-dismissal rule set forth in PC 1387(c) is inapplicable and that the prosecution is barred.

Apr. 13, 2023 – People v. Saucedo (1st Dist., Div. 5, A160851)

The Court of Appeal finds that the trial court erred in admitting evidence of appellant’s prior traffic offenses as proof of implied malice at appellant’s trial for Watson murder. The court explains that none of the prior traffic offenses qualified as “encounters with the consequences of recklessness on the highway from which jurors could reasonably infer appellant was sensitized to the dangerousness of such life-threatening conduct.” The court concludes, however, that the error was harmless.

Apr. 13, 2023 – People v. Meza (2nd Dist., Div. 7, B318310)

Before pleading guilty to murder, appellants moved to suppress evidence obtained pursuant to a “geofence” warrant that directed Google to reveal the location of appellants’ cell phones. The Court of Appeal finds that the warrant lacked the particularity required by the Fourth Amendment and was impermissibly overbroad, but affirms the convictions under the good faith exception to the exclusionary rule given the “dearth of authority” on the issue and the novelty of the surveillance technique.

Apr. 12, 2023 – People v. Oliver (1st Dist., Div. 1, A161773)

In a PC 1172.6 case, the Court of Appeal affirms the trial court’s finding, made following a PC 1172.6(d)(3) hearing, that appellant was a major participant who acted with reckless indifference to human life. The court reasons that appellant’s dominating presence at the scene helped facilitate the robbery/burglary, that appellant knew it was likely the actual killer would use lethal force, and that appellant “did nothing to minimize this grave risk of death.” In conducting its analysis, the Court of Appeal defers to the trial court’s credibility findings, rejecting appellant’s argument that it should review the record independently.

Apr. 12, 2023 – Statement Concurring With Order Denying Review – People v. Powell (S278631, C094553)

In a PC 1172.6 case where the trial court found that appellant acted with reckless indifference based in part on the notion that she was aware of her cohort’s propensity for violence because he regularly physically abused her, Justices Groban and Evans, both joined by Justice Liu, issue separate statements concurring with the order denying review. Justice Evans writes, “I disagree that intimate partner violence evidence should be used to show that a victim of [such] violence knew of their cohort’s propensity to use lethal violence based on their personal experience of being abused.”

Apr. 12, 2023 – In re Robert F. (4th Dist., Div. 2, E080073)

The Court of Appeal finds the Department has no obligation to ask extended family members about possible Indian ancestry under WIC 224.2(b) as part of the initial inquiry when the child is taken into protective custody pursuant to a warrant under WIC 340. Nothing in the opinion is intended to limit the duty of inquiry required under WIC 224.2(a) and (c).

Apr. 11, 2023 – People v. Thai (4th Dist., Div. 3, G060963)

The Court of Appeal holds that the trial court abused its discretion by denying appellant’s petition for termination from the sex offender registry. The court finds that the prosecution failed to establish that “community safety would be significantly enhanced,” as required under PC 290.5(a)(2) and (a)(3), by requiring appellant to continue to register. The court explains that the facts of appellant’s 24-year-old offense alone did not demonstrate that appellant, a 64-year-old man, was a present risk to the community, especially considering that he had not suffered any other convictions since then.

Apr. 11, 2023 – In re T.A. (4th Dist., Div. 2, E079346)

The Court of Appeal holds that AB 2361, which amended WIC 707‘s procedures for transferring a minor from juvenile to adult criminal court, applies retroactively. The court finds, however, that remand is not required because the juvenile court’s application of a lesser standard of proof than is now required under AB 2361 is harmless under Watson. The court disagrees with appellant’s argument that the “clear indication” harmlessness standard articulated in People v. Gutierrez (2014) 58 Cal.4th 1354 applies.

Apr. 11, 2023 – In re Damian L. (5th Dist., F083805)

In an appeal by the Department, the Court of Appeal agrees that the juvenile court erred when it ordered the Department to provide additional reunification services to mother. Reunification services are limited by the 18-month period calculated from the date the child was originally taken from the physical custody of their parent. A period of family maintenance services after a child’s initial removal does not alter the statutory time limit for reunification services.

Apr. 7, 2023 – People v. Didyavong (4th Dist., Div. 1, D079712)

In an appeal from the denial of a PC 1172.6 petition, the Court of Appeal holds that a trial court has no authority to reduce a first degree murder conviction to second degree and resentence the defendant for the lesser offense. The court also finds that substantial evidence supported the trial court’s conclusion, following a PC 1172.6(d)(3) hearing, that petitioner was guilty of murder as an aider and abettor under an implied malice theory.

Apr. 7, 2023 – People v. Carr (4th Dist., Div. 2, E079368)

The trial court denied appellant’s PC 1172.6 petition at the prima facie stage on the ground that the jury at appellant’s trial was instructed on implied malice murder involving driving under the influence (Watson murder), not according to a natural and probable consequences or felony murder theory. The Court of Appeal affirms, rejecting appellant’s argument that a conviction for Watson murder involves the imputation of malice within the meaning of PC 188(a)(3).

Apr. 6, 2023 – In re Ferrell (Supreme Ct., S265798)

The Supreme Court holds that petitioner is entitled to habeas relief based on his claim that the jury at his trial was instructed on a theory of second-degree felony murder – i.e., that the killing occurred during his willful discharge of a firearm in a grossly negligent manner (PC 246.3) – that was subsequently invalidated by People v. Chun (2009) 45 Cal.4th 1172. The court rejects CDCR’s argument that the instructional error was harmless beyond a reasonable doubt given the jury’s true finding on a firearm enhancement under PC 12022.53(d) and the overall evidence of implied malice.

Apr. 6, 2023 – Michael G. v. Superior Court (Supreme Ct., S271809)

The Supreme Court holds that a parent who is denied reasonable services between the 12- and 18-month review hearings is not statutorily entitled to an automatic extension of services at the 18-month hearing. Parents may seek a discretionary continuance of the WIC 366.26 hearing and an extension of reunification services under WIC 352 in exceptional circumstances and as long as the continuance is not contrary to the best interests of the child.

Apr. 5, 2023 – Nijmeddin v. Superior Court (6th Dist., H050870)

The Court of Appeal grants a petition for writ of mandate, finding the trial court abused its discretion in refusing to recall petitioner’s prison sentence for compassionate release under PC 1172.2 as amended by AB 960. Petitioner was suffering from advanced, incurable pancreatic cancer and had less than one year to live. The court holds the trial court’s finding that petitioner posed an unreasonable risk of danger to public safety was not supported by substantial evidence.

Apr. 4, 2023 – People v. Jones (1st Dist., Div. 5, A163558)

After recording the jury’s guilty verdict on the charged offenses, the trial court discharged the jurors and expressly released them from their obligation to not discuss the case with anyone else. The prosecutor then notified the court that the matter of a prior strike allegation had not yet been tried, and, nearly four hours after being discharged, the jury reconvened in the courtroom and returned a true finding on the allegation. The Court of Appeal vacates this finding on the ground that the jury did not “remai[n] within the court’s control” between being discharged and reconvening.

Apr. 3, 2023 – In re Lopez (Supreme Ct., S258912)

The Supreme Court holds that a gang-murder special circumstance does not necessarily render a Chiu error harmless. The court explains that reviewing courts must “rigorously review the evidence” to assess harmlessness in this context, and may only find such an error harmless if “it would be impossible, based on the evidence, for a jury to make the findings reflected in its verdict without also making the findings that would support a valid theory of liability.” Finding that the Court of Appeal failed to “fully appreciat[e]” this harmlessness standard, the Supreme Court reverses and remands.

Mar. 30, 2023 – People v. Marquez (4th Dist., Div. 3, G061264)

The Court of Appeal holds that a defendant’s status as a noncaretaker is not an element of PC 368(d), elder theft as a noncaretaker. The court explains that PC 368(d)’s inclusion of noncaretakers merely provides the prosecution with an alternative charging option under PC 368. “That is, if a person was stealing from an elder, and was arguably a caretaker, but the prosecution lacked proof of the caretaker element under PC 368(e), the prosecution might elect to file the charge under PC 368(d), and then be required to prove the knowledge element,” i.e., actual or reasonable knowledge of the victim’s age or dependency.

Mar. 30, 2023 – People v. Vaca (1st Dist., Div. 4, A164953)

The Court of Appeal holds that PC 1473.7 does not require a court to dismiss the underlying information or complaint after granting a defendant’s motion to vacate their conviction or sentence and allowing them to withdraw their plea.

Mar. 30, 2023 – In re Kerins (1st Dist., Div. 4, A165304)

The Court of Appeal holds that the trial court did not lack jurisdiction to consider an SVP petition that was filed two days after appellant’s scheduled release date in July 2006. The court reasons that appellant’s motions to dismiss the petition were untimely filed (12 and 14 years after the filing of the petition), and, in any event, the parole board had placed a 45-day hold on appellant in 2006 and had good cause to do so under then-existing law. The court also holds that, despite the 14-year delay, appellant’s speedy trial rights were not violated, in large part because appellant was responsible for most of the delay.

Mar. 30, 2023 – People v. Cooks (4th Dist., Div. 1, D079706)

The Court of Appeal dismisses as unripe an appeal from trial counsel’s waiver of defendant’s right to be personally present at any future restitution hearing, where no restitution hearing has yet taken place. “[U]ntil a restitution hearing takes place in [defendant’s] absence, any error from an invalid waiver is hypothetical and not concrete.”

Mar. 30, 2023 – In re S.S. (3rd Dist., C097055)

In an appeal from an order transferring minor to adult criminal court (WIC 707), the Court of Appeal holds that AB 2361‘s amendments to WIC 707 raising the standard of proof and requiring a finding that the minor is not amenable to rehabilitation apply retroactively. Finding that a more favorable result is reasonably probable under the amended statute, the court remands the matter for a new transfer hearing.

Mar. 30, 2023 – K.R. v. Superior Court (2nd Dist., Div. 1, B321655)

The Court of Appeal holds that, although WIC 709 establishes a maximum of one year of remediation for juveniles found incompetent, the juvenile court retains jurisdiction for a reasonable period to resolve disputes relating to the minor’s competency, and minors accused of serious offenses may be held in secure confinement past the one-year period. The Court of Appeal thus finds that the juvenile court retained jurisdiction even though 15 months elapsed between the incompetency finding and the restoration of competency, and that the court did not err by allowing the prosecution’s expert to examine minor.

Mar. 29, 2023 – People v. Wilson (4th Dist., Div. 1, D080920)

Appellant was charged with sexual abuse of a child. The prosecutor argued the jury could “presume” guilt based on evidence he committed uncharged sex offenses. The trial court denied a motion for mistrial based on prosecutorial misconduct. The Court of Appeal affirms, finding jurors likely understood the term “presume” in the “colloquial sense,” i.e., “to expect or to believe,” not as a legal presumption requiring them to find appellant guilty of the charged offenses if they believed he committed the uncharged acts. The court further finds that if any misconduct occurred, it was harmless.

Mar. 28, 2023 – People v. Shkrabak (3rd Dist., C096266)

Agreeing with People v. Yang (2022) 78 Cal.App.5th 120, and disagreeing with People v. Orellana (2022) 74 Cal.App.5th 319, the Court of Appeal holds that, as a matter of equal protection, defendant is entitled to presentence conduct credits under PC 4019 for time spent receiving competency treatment in the state hospital. The court finds that defendants who receive competency treatment in the state hospital are similarly situated to defendants who receive competency treatment in county jail, and there is no justification for granting presentence conduct credits to the latter group but not the former.

Note: SB 317 recently amended PC 4019 to expressly grant defendants presentence conduct credits for time spent receiving competency treatment in the state hospital.

Mar. 28, 2023 – People v. Bautista-Castanon (1st Dist., Div. 4, A162579)

The Court of Appeal holds that AB 518’s amendments to PC 654 and SB 567’s amendments to PC 1170(b) apply retroactively and require resentencing. The court rejects defendant’s arguments that, on remand: (1) in considering whether “the aggravating circumstances outweigh the mitigating circumstances [so] that imposition of the lower term would be contrary to the interests of justice” (PC 1170(b)(6)), the trial court may consider only aggravating circumstances found true beyond a reasonable doubt; and (2) the trial court may, under PC 1385, strike the jury’s PC 1203.66 finding.

Mar. 28, 2023 – People v. Pantaleon (3rd Dist., C095843)

The Court of Appeal holds that SB 567‘s amendments to PC 1170(b), which created a presumption in favor of the middle term and entitle a defendant to a bifurcated trial on aggravating circumstances, did not impose a pleading requirement for aggravating circumstances. PC 1170.1(e) applies only to “enhancements,” and “[a]n upper term is still a base term and not an enhancement under section 1170.1.”  

Mar. 28, 2023 – People v. Butler (4th Dist., Div. 2, E078235)

The Court of Appeal remands for resentencing consistent with SB 567‘s amendments to PC 1170(b). The court follows the procedure set forth in People v. Lopez (2022) 78 Cal.App.5th 459 for assessing harmlessness where the upper term was imposed prior to SB 567.

Mar. 27, 2023 – People v. Hurtado (2nd Dist., Div. 6, B319381)

The trial court denied appellant’s PC 1172.6 resentencing petition without appointing counsel, setting a briefing schedule, or holding a hearing. On appeal, appellant argued the trial court’s failure to follow statutory procedures violated his constitutional right to due process. The Court of Appeal rejects the argument, holding that the statutory omissions are not state or federal constitutional violations. The court further finds that any error was harmless because appellant “alone attempted to commit murder” and is ineligible for relief as a matter of law.

Mar. 27, 2023 – In re Jenkins (Supreme Ct., S267391)

Petitioner filed a habeas petition in the Court of Appeal claiming the prosecution failed to disclose prior misconduct by key witnesses, and attached an unpublished opinion describing the then-juvenile witnesses by first name and last initial. The AG refused to confirm whether the opinion involved the witnesses. The Supreme Court holds the Attorney General is ethically and constitutionally obligated to disclose exculpatory evidence in response to a habeas petition alleging a Brady violation, and calls on prosecutors to “faithfully bear the special responsibilities” ascribed to them by our system of justice.

Mar. 27, 2023 – People v. Brown (Supreme Ct., S271877)

The Supreme Court holds that a trial court must generally grant a continuance of a suppression motion within the speedy trial period if it is reasonably foreseeable that denial of the continuance would require dismissal of the case, even if the continuance is not supported by good cause. The court agrees with the conclusion in People v. Ferrer (2010) 184 Cal.App.4th 873 that denial of such a continuance constitutes an abuse of discretion, but critiques Ferrer‘s analysis of PC 1050 and 1050.5. The concurring/dissenting opinion questions the workability of the “reasonably foreseeable” standard.

Mar. 23, 2023 – In re L.J. (3rd Dist., C096775)

The Court of Appeal affirms the order terminating mother’s parental rights. The court finds the juvenile court did not violate mother’s right to due process by excluding the audio/video recording she made of herself with the minor. In addition, the juvenile court’s finding that the beneficial relationship exception did not apply was supported by substantial evidence and was not an abuse of discretion.

Mar. 23, 2023 – People v. Myles (4th Dist., Div. 1, D079825)

The Court of Appeal finds the trial court erred when it modified the jury instruction on theft (CALCRIM 1800) to add a sentence stating that the “unauthorized use of utilities in a residence or consumption of food” is theft; the written instruction also included citations to appellate cases holding that the unauthorized use of utilities constitutes theft. The court explains that the modified instruction was “erroneous and argumentative” and lightened the prosecution’s burden of proof by omitting the required mental state for residential burglary.

Mar. 22, 2023 – Review Grant – People v. Walker (S278309, B319961)

“The issue to be briefed and argued is limited to the following: Does the amendment to Penal Code section 1385, subdivision (c) that requires trial courts to ‘afford great weight’ to enumerated mitigating circumstances (Stats. 2021, ch. 721) create a rebuttable presumption in favor of dismissing an enhancement unless the trial court finds dismissal would endanger public safety?”

Mar. 22, 2023 – People v. Villalba (2nd Dist. Div. 2, B318353)

The Court of Appeal reverses the trial court’s order denying appellant’s motion to withdraw his plea and vacate his conviction pursuant to PC 1473.7. Citing to appellant’s youth when he entered the U.S., deep ties to the U.S., and lack of significant criminal history, the court finds a reasonable probability appellant would not have pled to an offense requiring mandatory deportation had he been properly advised of the immigration consequences of his plea. The court also finds it has jurisdiction to reach the merits of this issue, notwithstanding that the motion was prematurely filed when appellant was on probation.  

Mar. 22, 2023 – People v. Gobert (4th Dist., Div. 1, D080018)

The Court of Appeal affirms defendant’s murder conviction. The court finds that the trial court erred by admitting hearsay evidence of prior misconduct under EC 1109(a)(1) – as EC 1109(a)(1) “is not a hearsay exception” – but that the error was harmless. The court finds that the trial court’s failure to follow correct Pitchess procedures was also harmless. The court strikes from the sentencing minutes an admonition, which was not orally pronounced and which was routinely included in sentencing minutes from the same trial court, for defendant to not possess any firearm or deadly weapon for the rest of his life.

Mar. 22, 2023 – People v. Patton (2nd Dist., Div. 3, B320352)

The trial court denied appellant’s PC 1172.6 petition at the prima facie stage, finding him ineligible for resentencing because the preliminary hearing and change of plea transcripts established he was the sole and actual perpetrator of the attempted murder. The Court of Appeal affirms, finding the record of conviction, including the sworn testimony of police officers based on surveillance video of the crime, established as a matter of law that appellant was convicted under a still-valid theory of attempted murder.

Mar. 21, 2023 – People v. Nakano (6th Dist., H049057)

The Court of Appeal reverses the trial court’s early termination of defendant’s probation, concluding that the court abused its discretion by failing to apply the standard set forth in PC 1203.3(a). The court explains that the trial court’s reason for early termination was not defendant’s “good conduct and reform” or “the ends of justice,” as required under PC 1203.3(a), but to allow defendant to leave the country.

Mar. 17, 2023 – In re E.P. (2nd Dist., Div. 6, B319738)

Effective Jan. 1, 2023, AB 2361 amended WIC 707 to: (1) prohibit the transfer of a minor to adult criminal court unless the juvenile court finds, by clear and convincing evidence, that the minor is “not amenable to rehabilitation” while under the jurisdiction of the juvenile court; and (2) require a juvenile court making such a finding to state the reasons supporting the finding. The Court of Appeal holds that, under the Estrada rule, these amendments apply retroactively to appellant’s nonfinal case and require remand for a new transfer hearing.

Mar. 17, 2023 – A.H. v. Superior Court (4th Dist., Div. 3, G061648)

The Court of Appeal affirms the juvenile court’s rulings related to the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). Substantial evidence supports the juvenile court’s findings of emergency jurisdiction and that Texas ceded subject matter jurisdiction to California.

Mar. 15, 2023 – People v. Ruiz (2nd Dist., Div. 8, B312062)

At a CDCR-initiated recall and resentencing hearing, trial counsel spoke less than 50 words, did not remember his client, and did not file any documents. The attorney was later diagnosed with a brain tumor that caused significant mental deterioration and died later that year. The Court of Appeal grants the petition for writ of habeas corpus and remands for a new resentencing hearing, finding the attorney’s performance amounted to a complete denial of counsel within the meaning of United States v. Cronic (1984) 466 U.S. 648, 659.

Mar. 15, 2023 – Review Grant – In re Kowalczyk (S277910, A162977)

“The court limited review to the following issues: (1) Which constitutional provision governs the denial of bail in noncapital cases – article I, section 12, subdivisions (b) and (c), or article I, section 28, subdivision (f)(3), of the California Constitution – or, in the alternative, can these provisions be reconciled? (2) May a superior court ever set pretrial bail above an arrestee’s ability to pay?”

Mar. 15, 2023 – Review Grant – People v. Arellano (S277962, H049413)

“This case presents the following issue: When a defendant obtains resentencing of a conviction under Penal Code section 1172.6, subdivision (e), is the trial court permitted to impose not only the target offense or underlying felony, but also corresponding enhancements?”

Mar. 14, 2023 – People v. Tice (4th Dist., Div. 2, E077504)

The Court of Appeal holds that any person employed by the county to work within that county’s jail is “an employee of the local detention facility” within the meaning of PC 243.9. The court further holds that, because two witnesses testified that the substance appellant sprayed on the employee was semen, substantial evidence supports a finding that appellant sprayed the employee with a bodily fluid, notwithstanding that one of the witnesses could not state with absolute certainty that the substance was semen, and that the substance was not scientifically tested to confirm it was semen.

Mar. 13, 2023 – People v. Burke (3rd Dist., C096164)

The Court of Appeal holds that PC 1385, as amended by SB 81, does not apply to a Romero decision whether to dismiss a prior strike, because the plain language of PC 1385(c) applies only to an “enhancement” and the Three Strikes law is not an enhancement. The court reaches this decision despite acknowledging that “much of the legislative history [of SB 81] is inconsistent with this plain language.”  

Mar. 10, 2023 – In re J.M. (2nd Dist., Div. 4, B313754)

The Court of Appeal affirms the order granting shared legal custody to mother and father and sole physical custody to mother. The court finds the juvenile court did not abuse its discretion when it terminated jurisdiction. In addition, the juvenile court did not err when it assessed the best interests of the children when making custodial exit orders and in granting sole physical custody to mother.

Mar. 10, 2023 – People v. Ngo (4th Dist., Div. 2, E078723)

The Court of Appeal holds that PC 3051, which denies a youth offender parole hearing to youthful offenders sentenced to LWOP while granting one to youthful offenders sentenced to parole-eligible life terms, does not violate equal protection because “several rational bases [exist] for the unequal treatment.” The court further holds that appellant is not entitled to a Franklin hearing to preserve evidence of youth-related mitigating factors for other purposes, such as for a potential resentencing under PC 1172.1.

Note: The equal protection issue is currently pending in the California Supreme Court in People v. Hardin (S277497).

Mar. 9, 2023 – People v. Arreguin (2nd Dist., Div. 6, B304838)

The Court of Appeal reverses the trial court’s prima facie denial of appellant’s PC 1172.6 petition. Applying People v. Strong (2022) 13 Cal.5th 698, the court finds that the felony murder special circumstance finding made at defendant’s trial prior to People v. Banks (2015) 61 Cal.4th 788 and People v. Clark (2016) 63 Cal.4th 522 does not preclude a prima facie showing under PC 1172.6. The concurring opinion laments the need to remand for further proceedings and urges the California Supreme Court to grant review to “declare that a harmless error analysis has application in [this] context.”

Mar. 9, 2023 – People v. Oliva (4th Dist., Div. 2, E073979)

The Court of Appeal holds that AB 333’s amendments to PC 186.22 apply retroactively to defendant’s case and vacates the true findings on the gang enhancement (PC 186.22(b)(1)(C)) and gang murder special circumstance (PC 190.2(a)(22)). The court rejects the People’s argument that AB 333’s amendments to PC 186.22, when applied in the context of the gang murder special circumstance, constitute an unlawful amendment of Prop 21. The court also assumes that PC 1109 (AB 333’s bifurcation provision) applies retroactively but that the failure to bifurcate the gang enhancement here was harmless.

Note: Both the Prop 21 issue and the PC 1109 issue are currently pending in the California Supreme Court, in People v. Rojas (S275835) [Prop 21] and People v. Burgos (S274743) [PC 1109].

Mar. 7, 2023 – People v. Edwards (3rd Dist., C094784)

In three separate cases, defendants filed habeas petitions after DSH failed to timely admit them for competency treatment, and the trial court issued sanctions of $1,000 under CCP 177.5 for each day past specific deadlines that defendants were not admitted, for a total of $91,000. The Court of Appeal rejects DSH’s argument that the sanctions were unwarranted because it had “good cause or substantial justification” for failing to timely admit defendants. The court finds, however, that the trial court failed in other ways to make sufficient findings to support the sanctions and remands for further proceedings.

Mar. 6, 2023 – In re Matthew M. (2nd Dist., Div. 7, B319258)

The Court of Appeal affirms the juvenile court’s order denying mother’s WIC 388 petition. The juvenile court did not abuse its discretion when it authorized the minor to receive the COVID-19 vaccination over mother’s religious objections and her concerns about possible adverse side effects.

Mar. 6, 2023 – M.E. v. Superior Court (2nd Dist., Div. 6, B323404)

The Court of Appeal holds that a 26-year-old may not be placed on deferred entry of judgment (WIC 790) in the juvenile court for an offense committed when they were a minor. The court explains that while WIC 790 applies to an adult who commits a felony prior to age 18, the juvenile court retains jurisdiction only until the individual turns 21, and the WIC 602 petition here was not filed until the individual was 25.

Mar. 2, 2023 – Estrada v. Superior Court (1st Dist., Div. 1, A166474)

In consolidated writ proceedings, the Court of Appeal denies two petitions for writ of mandate, each seeking dismissal of a case for violating petitioner’s speedy trial rights under PC 1382. The court finds that, in each case, the trial court did not abuse its discretion in concluding that exceptional circumstances – the continuing effect of the COVID-19 pandemic – justified continuance of petitioner’s trial past its statutory last day.

Mar. 2, 2023 – In re N.M. (2nd Dist., Div. 1, B315559)

The juvenile court abused its discretion when it granted sole physical custody to mother. There was no express finding made that the order was in the children’s best interests. An exit order must serve the best interests of the children, not reward or punish one parent or another for failing to comply with the case plan.

Mar. 2, 2023 – In re Cabrera (Supreme Ct., S271178)

PC 1192.7 defines “serious felony” to include any felony in which the defendant inflicts “great bodily injury.” The jury convicted defendant of battery with “serious bodily injury” (PC 243(d)) but hung on whether he inflicted “great bodily injury” (PC 12022.7). At sentencing, however, the trial court found that the conviction was for a serious felony “because there [was] great bodily injury” and imposed a five-year enhancement under PC 667(a)(1). The Supreme Court holds that the trial court’s finding of great bodily injury violated the defendant’s Sixth Amendment rights under Apprendi.

Mar. 2, 2023 – People v. Brown (Supreme Ct., S257631)

The Supreme Court holds that to prove first degree murder by means of poison, the prosecution must show the defendant gave the victim poison “with the intent to kill the victim or inflict injury likely to cause death.” Applying the Neder omitted element test, the court finds that the trial court’s failure to instruct on this intent element was not harmless beyond a reasonable doubt and reverses defendant’s first degree murder conviction.

Mar. 2, 2023 – People v. Lewis (4th Dist., Div. 2, E076449)

The Court of Appeal sets out a new prejudice test for SB 567 error. First, the court must determine whether the upper term could be lawfully imposed, which requires the court to assess whether the record shows beyond a reasonable doubt that the jury would have found at least one aggravating circumstance true. Second, if the answer to this question is yes, the court “must apply [People v. Gutierrez (2014) 58 Cal.4th 1358] and ask whether the record clearly indicates that the trial court would have imposed the same sentence under the new law.” The concurring opinion disagrees with the second step. 

Note: This issue is currently pending in the California Supreme Court in People v. Lynch (S274942).

Mar. 1, 2023 – Review Grant – People v. Carter (S278262, C094949)

“The issue to be briefed and argued is limited to the following: Did the trial court deprive defendant of effective assistance of counsel by failing to appoint substitute counsel to evaluate and potentially argue defendant’s pro. per. motion to dismiss after appointed counsel refused to consider the motion based on an asserted conflict in arguing her own ineffective assistance of counsel?”

Feb. 28, 2023 – People v. Ung (6th Dist., H049359)

Defendant pled no contest to stealing various cryptocurrencies from multiple victims between June and December 2018. In September 2021, by which time the cryptocurrencies had increased in value from about $1.56 million to about $15.9 million, the trial court ordered defendant to make restitution by transferring cryptocurrencies to the victims in the same kinds and amounts he stole from them. The Court of Appeal affirms the order, rejecting defendant’s arguments that it provided the victims with an undue windfall and violated his due process rights by failing to give him adequate notice of his actual liability.

Feb. 28, 2023 – People v. Pierce (2nd Dist., Div. 6, B322890)

Appellant’s plea bargain included a stipulated sentence of 19 years, 4 months. CDCR recommended recall of the sentence under former PC 1170(d)(1) (now PC 1172.1) to allow the trial court to exercise its discretion to dismiss two PC 12022.53(b) enhancements. The trial court summarily denied the request. The Court of Appeal reverses, holding that relief may not be denied under PC 1172.1 without appointment of counsel and a hearing.

Feb. 28, 2023 – People v. Fugit (1st Dist., Div. 5, A163497)

Where defendant was charged with assault with a deadly weapon (PC 245(a)(1)) and the trial court instructed the jury on assault by force likely to cause great bodily injury (PC 245(a)(4)) as a lesser-included offense over defense objection, the Court of Appeal finds that defendant had notice that the prosecution was proceeding under the theory that the weapon (a coffee mug) was not inherently deadly and was used in a manner likely to cause great bodily injury. The court thus holds that, under the accusatory pleading test, force-likely assault was a lesser-included offense.

Feb. 27, 2023 – People v. Jones (2nd Dist., Div. 8, B318732)

The Court of Appeal agrees with appellant that the trial court erred in failing to award 993 presentence custody credits pursuant to PC 4019. The court holds that although appellant’s current and prior assault convictions both qualified as serious felonies under PC 1192.7, “the Three Strikes law has no effect on the calculation of presentence conduct credits.”

Feb. 23, 2023 – People v. Lopez (4th Dist., Div. 2, E078211)

The Court of Appeal affirms the prima facie denial of defendant’s PC 1172.6 petition, reasoning that the jury’s special circumstance finding that defendant had the intent to kill established that he could be convicted of murder under current law as a person who, “with the intent to kill, aided … in the commission of murder in the first degree.” (PC 189(e)(2).) The dissent reasons that the jury may have found that defendant had the specific intent to kill but that he aided only the underlying felony, not the killing, and that PC 189(e)(2) requires a showing that the defendant aided “in the commission of [the killing].”

Feb. 23, 2023 – People v. McWilliams (Supreme Ct., S268320)

The Supreme Court holds that the officer’s discovery of defendant’s parole search condition after unlawfully detaining him did not sufficiently attenuate the connection between the unlawful detention and the search. The court reasons that a parole search condition, unlike an arrest warrant, does not compel further action by the officer. Justice Liu’s concurrence emphasizes that where an officer discovers a parole search condition following an unlawful detention, the officer’s decisionmaking “may be vulnerable to implicit biases” such as “the unconscious association between Blackness and criminality.”

Feb. 23, 2023 – People v. Burgess (3rd Dist., C094813)

The Court of Appeal reverses the trial court’s order denying appellant’s petition for resentencing under PC 1172.6, finding that: (1) collateral estoppel does not preclude the trial court from revisiting a jury’s predicate felony finding to determine whether the prosecution has made the required showing of guilt; and (2) the prosecution did not prove beyond a reasonable doubt that appellant was guilty of murder under current law because theft by false pretenses is not a predicate felony to felony murder.

Feb. 22, 2023 – People v. Muhammad (2nd Dist., Div. 6, B322899)

Defendant’s murder trial took place from February to April 2020, with a month-long break partway through deliberations due to the court closures at the start of the COVID-19 pandemic. The Court of Appeal rejects defendant’s argument that the trial court deprived him of due process by requiring the jury to continue deliberating during the initial outbreak of the pandemic when pressure and anxiety may have interfered with jurors’ ability to deliberate.

Feb. 22, 2023 – People v. Kenney (4th Dist., Div. 1, D079227)

The Court of Appeal holds the trial court did not err in denying defendant’s motion to dismiss charges of resisting/obstructing a peace officer where the officer was performing a lawful duty by removing defendant from his home after verbally informing him of the existence of a restraining order. The Court of Appeal also holds that the trial court erred by failing to instruct the jury on the notice provision of PC 836(c)(2) since it was an essential element of the offense, but that the error was harmless.

Feb. 21, 2023 – People v. Sedano (5th Dist., F082933)

The Court of Appeal holds that the trial court did not err in admitting CSAAS expert testimony about the prevalence of delayed disclosure and preexisting relationships between abusers and the abused. The court reasons that the testimony “served the permissible purpose of helping the jury evaluate [the victim’s] credibility, free of preconceived misconceptions [that abusers are usually strangers to the victim or that victims usually come forward right away], while not relieving jurors of their ultimate duty to independently determine the truthfulness of her testimony.”

Feb. 21, 2023 – People v. Johnson (1st Dist., Div. 4, A162599)

Pursuant to PC 667.6(d), the trial court found that defendant’s convictions under PC 288(b)(1) occurred “on separate occasions” and imposed consecutive full terms. The Court of Appeal holds that this violated the Sixth Amendment, in that PC 667.6(d) mandated full terms, rather than one-third terms, based on judicial factfinding. The court rejects defendant’s argument that his de facto LWOP sentence is cruel and unusual. In a concurring opinion, Justice Streeter encourages the California Supreme Court to consider whether de facto LWOP sentences like defendant’s are cruel or unusual under the state constitution. 

Note: A similar issue regarding PC 667.6(d) is currently pending in the California Supreme Court in People v. Catarino (S271828).

Feb. 17, 2023 – People v. Venable (4th Dist., Div. 2, E071681)

At defendant’s jury trial for murder, the prosecution relied on a rap video in which defendant appeared in some scenes. The Court of Appeal holds that EC 352.2 (AB 2799) applies retroactively to defendant’s case, and that admission of the video without the statute’s safeguards was prejudicial. The court reasons that EC 352.2 applies retroactively because it provides “an ameliorative benefit, specifically, a trial conducted without evidence that introduces bias and prejudice into the proceedings, limitations designed to increase the likelihood of acquittals and reduce punishment for an identified class of persons.”

Feb. 17, 2023 – People v. Sundberg (4th Dist., Div. 1, D080500)

Appellate counsel filed a Wende/Anders brief in this appeal from the denial of an application for outpatient placement pursuant to PC 1026.2. The Court of Appeal holds that such appeals are not subject to Wende/Anders procedures and dismisses the appeal after noting that defendant was offered the opportunity to file his own brief but declined to do so.

Feb. 16, 2023 – In re A.A. (4th Dist., Div. 2, E079176)

The Court of Appeal affirms that the ICWA did not apply to the proceedings. The Indian tribe stated the children were not members but could apply to be naturalized members. The tribe has exclusive authority to determine eligibility for membership and its determination was conclusive and binding on the trial court and appellate court.

Feb. 16, 2023 – In re L.B. (1st Dist., Div. 1, A165001)

Analyzing recent revisions to WIC 300(b), the Court of Appeal finds WIC 300(b)(2)(B) has no relevance in this case where the lack of appropriate custody order was only one of many factors placing the child at risk. Furthermore, substantial evidence supports the jurisdictional finding under WIC 300(b).

Feb. 15, 2023 – Review Grant – People v. Cannon (S277995, A163083)

“This case presents the following issue: What level of scrutiny applies in determining whether the Sexually Violent Predator Act (Welf. & Inst. Code, § 6600 et seq.) violates equal protection because it does not require an advisement or personal waiver of a jury trial as afforded in other civil commitment statutes?”

Feb. 15, 2023 – People v. Todd (6th Dist., H049129)

The Court of Appeal holds that SB 567’s amendments to PC 1170(b) apply retroactively to defendant’s case and require remand for resentencing, even though defendant was sentenced pursuant to a plea agreement with a stipulated upper-term sentence. Applying People v. Stamps (2020) 9 Cal.5th 685, the court directs that, on remand, unless defendant waives the requirements of PC 1170(b) or the trial court finds aggravating circumstances as required under the statute, “the only remedy available to the trial court is to withdraw approval for the plea agreement and return the parties to the status quo.”

Note: This issue is currently pending in the California Supreme Court in People v. Mitchell (S277314).

Feb. 15, 2023 – People v. Sallee (5th Dist., F083728)

The Court of Appeal holds that SB 567’s amendments to PC 1170(b) apply retroactively to defendant’s case but do not require remand for resentencing since defendant was sentenced pursuant to a plea agreement with a stipulated upper-term sentence. The court reasons that because the trial court in such a situation “d[oes] not exercise discretion to select between the lower, middle, or upper term,” PC 1170(b)’s “limitations on the court’s sentencing discretion … are inapplicable.”

Note: This issue is currently pending in the California Supreme Court in People v. Mitchell (S277314).

Feb. 15, 2023 – D.S. v. Superior Court (4th Dist., Div. 2, E079017)

An appeal from the summary denial of mother’s WIC 388 petition is construed as a petition for writ of mandate because the issues raised on appeal, ICWA compliance, were not encompassed by the WIC 388 petition. The Court of Appeal finds the Department’s failure to fulfill its duty of inquiry was not harmless. In addition, the duty of inquiry imposed under WIC 224.2 is not limited only to biological relatives.

Feb. 15, 2023 – In re Hunter W. (4th Dist., Div. 1, D079942)

The minor petitioned for modification of his DJJ commitment to the middle term of six years, the maximum permitted under WIC 731 as amended by recently enacted SB 823. Considering the question of what constitutes finality in a juvenile case, the Court of Appeal holds the minor is not entitled to the ameliorative benefit of the new law because his case became final when he failed to seek additional review after the Court of Appeal affirmed the dispositional order in 2019.

Feb. 14, 2023 – In re Jayden G. (2nd Dist., Div. 8, B321426)

The Department did not make a reasonably diligent effort to locate and adequately notice the alleged father. The Department’s formulaic search was not harmless beyond a reasonable doubt. The Department also failed to conduct an adequate initial inquiry into the child’s Indian ancestry. The matter is remanded for the Department to effectuate and complete a diligent search for the alleged father and complete its duty of inquiry.

Feb. 10, 2023 – People v. Mendoza (4th Dist., Div. 2, E078534)

The Court of Appeal holds that PC 1385(c)(2)(C) does not mandate dismissal of an enhancement that could result in a sentence over 20 years where the court finds dismissal would endanger public safety. The Court of Appeal further finds that the trial court did not abuse its discretion by finding the dismissal of defendant’s firearm enhancement would endanger public safety where it would result in a sentence of less than six years in prison and the immediate release of defendant, and where the court determined a long sentence was necessary for defendant’s rehabilitation due to the circumstances of his crime.

Feb. 7, 2023 – People v. Pack (1st Dist., Div. 4, A161564)

Defendant was convicted of assault with force likely (PC 245(a)(4)) after the trial court, over defense objection, instructed the jury that this was a lesser included offense of the charged offense of assault with a deadly weapon (PC 245(a)(1)). The Court of Appeal reverses the conviction, finding that, under both the elements test and the accusatory pleading test, assault with force likely was not a lesser included offense. The court further finds that, assuming the “material variance” test also applies, “the variance between the accusatory pleading and [the] conviction was material and prejudicial.”

Feb. 7, 2023 – People v. Anderson (2nd Dist., Div. 7, B320627)

The Court of Appeal holds the trial court did not err under the amended PC 1385 (SB 81) when it imposed multiple enhancements in a single case because the statute’s language that a court “shall” dismiss certain enhancements is conditioned on the court’s finding that dismissal is in the furtherance of justice. Thus, “a finding of danger to public safety can overcome the circumstances in favor of dismissal.”

Feb. 6, 2023 – In re M.C. (1st Dist., Div. 2, A165424)

The Court of Appeal reverses the dispositional orders, stating the Department failed to establish by clear and convincing evidence that placing minor with father would be detrimental as required by WIC 361.2. In addition, the juvenile court abused its discretion by ordering father to engage in certain reunification services without any factual basis to support the order.

Feb. 1, 2023 – Statement Concurring With Order Denying Review – In re Gates (S277281, D080949)

In a case where the trial court refused to timely hear defendant’s Marsden motion, yet the Court of Appeal found the error harmless in light of defendant’s subsequent invocation of his Faretta right, Justice Groban issues a statement concurring with the order denying review. Justice Groban observes that defendant, while representing himself, rejected a probation offer and was instead sentenced to 17 years following a bench trial. Justice Groban states that he is “troubled by the result here,” and emphasizes that the denial of review is “without prejudice to seeking other appropriate relief.”

Feb. 1, 2023 – People v. Superior Court (Fernandez) (4th Dist., Div. 2, E078405)

The Court of Appeal holds there was probable cause to hold defendant to answer on the torture-murder special circumstance and reinstates the charge because the special circumstance was supported by “some rational ground” and does not require a showing that the defendant had the intent to kill at the instant of the particular act resulting in death. The dissent would uphold the magistrate’s determination that there was insufficient evidence of intent to kill to support the special circumstance.

Jan. 30, 2023 – People v. Ornelas (1st Dist., Div. 2, A165333)

The Court of Appeal holds that, when a warrant is issued and probation is summarily revoked and then reinstated within the initial probationary term, the trial court has discretion under PC 1203.2(b) to extend probation to account for the time when probation was summarily revoked, so long as the total period of probationary supervision does not exceed the statutory maximum.

Jan. 30, 2023 – People v. Fuentes (1st Dist., Div. 2, A162315)

The Court of Appeal holds that defendant violated a Cruz waiver by violating a protective order requiring contact with his girlfriend to be peaceful, where he yelled at and intimidated her and withheld her phone. The court also finds that the protective order was not unconstitutionally vague.

Jan. 27, 2023 – In re M.V. (2nd Dist., Div. 8, B315297)

The Court of Appeal reverses the order terminating parental rights. The court finds the juvenile court abused its discretion when it did not order a supplemental bonding study after receiving a “nonresponsive evaluation.” The juvenile court failed to determine whether the child had a substantial, positive attachment to her parents, and by relying on improper factors in assessing detriment, failed to perform the appropriate analysis when determining if the beneficial parental relationship exception applied.

Jan. 27, 2023 – In re N.R. (2nd Dist., Div. 8, B322164)

The Court of Appeal affirms the order terminating parental rights to N.R. The court states that parental fitness must be determined by assessment of a particular parent’s capacity to nurture and care for a particular child. The court rejects mother’s argument that return of one child to mother rebutted prior findings of mother’s unfitness to parent another child.

Jan. 27, 2023 – In re T.R. (4th Dist., Div. 2, E079291)

The Court of Appeal reverses the order bypassing father for reunification services under WIC 361.5(b)(6) and remands for the court to reconsider father’s entitlement to reunification services. WIC 361.5(b)(6) requires the court to read into the record the basis for the finding of severe physical harm and an additional finding that the child would not benefit from services.

Jan. 26, 2023 – People v. Ortiz (6th Dist., H049698)

As amended by SB 81, PC 1385 enumerates several mitigating circumstances that “weig[h] greatly” in favor of dismissal of an enhancement, unless dismissal “would endanger public safety.” Disagreeing with People v. Walker (2022) 86 Cal.App.5th 386, the Court of Appeal holds that this language does not create a presumption in favor of dismissal that is rebuttable only by a showing of danger to public safety. The court states that such a reading “would divest the trial court of its ultimate discretion under the statute to determine what is in furtherance of justice, considering all relevant factors.”

Jan. 26, 2023 – People v. Thomas (Supreme Ct., S161781)

In an automatic appeal in a capital case, the Supreme Court affirms the convictions and death sentence, rejecting claims relating to inadequate investigative funding; erroneous admission of evidence of an uncharged homicide and other offenses; insufficient evidence to support the robbery-murder special circumstance; various instructional errors; improper denial of a Faretta motion; and errors in the trial court’s mid-deliberation instructions after the jury deadlocked during the penalty phase.

Jan. 26, 2023 – People v. Bolanos (5th Dist., F082970)

The Court of Appeal rejects several of appellant’s sentencing-related claims, including: (1) that the youthful offender parole scheme (PC 3051) violates equal protection by excluding people sentenced under the One Strike law (PC 667.61); and (2) that the trial court should have stayed some of the One Strike sentences pursuant to PC 654. The court agrees that the 25-year-to-life sentence for a PC 667.61(a) enhancement was unauthorized, but finds the proper remedy is to impose a 15-year-to-life sentence under PC 667.61(b).

Jan. 26, 2023 – People v. Espinoza (Supreme Ct., S269647)

The Supreme Court clarifies what constitutes a sufficient showing of prejudicial error under PC 1473.7, which allows a noncitizen to vacate a prior conviction if they can establish that there was error damaging their ability to understand the immigration consequences of the conviction, and that they would have rejected the plea had they understood. The court finds that defendant made a sufficient showing of prejudice through evidence demonstrating his “deep and long-standing ties to the United States” and the availability of alternative, immigration safe dispositions.

Jan. 24, 2023 – People v. Kite (4th Dist., Div. 1, D080176)

As amended by AB 1950, PC 1203.1 limits the maximum length of most felony probation terms to 2 years but contains an exception for offenses that include a specific probation length within their provisions. For those offenses, the probation term must not exceed “the maximum possible term of the sentence.” The Court of Appeal holds that this language refers to the maximum possible aggregate term of imprisonment that could be imposed in the particular case, such that defendant’s probation term must be reduced from 5 years to 3 years and 8 months.

Jan. 23, 2022 – In re K.C. (2nd Dist., Div. 6, B319819)

The Court of Appeal holds that a juvenile probation condition prohibiting the minor from “engag[ing] in any unconsented sexual touching of any person” is not unconstitutionally vague. The court explains that a reasonable person would understand the condition to prohibit “unconsented touching of another person that involves any sexual connotation, either due to the parts of the body involved or [the minor’s] intent in touching the person.”

Jan. 23, 2023 – People v. Waldon (Supreme Ct., S025520)

In an automatic appeal after a judgment of death, the Supreme Court reverses appellant’s conviction and sentence because of errors in granting his request to represent himself. The court finds the judge who granted appellant’s second Faretta motion abused his discretion by overturning the prior judge’s Faretta denial without considering her findings and the bases for her decision, and by ignoring relevant evidence, resulting in structural error for the “total deprivation of the right to counsel.”

Jan. 20, 2023 – People v. Gonzalez (2nd Dist., Div. 5, B315921)

Following an evidentiary hearing, the trial court denied defendants’ PC 1172.6 petitions upon finding that they were “major participants” and “direct aiders and abettors.” On appeal, defendants argued that the trial court was required to reduce their first-degree murder convictions to second-degree, because the court did not find that they acted with premeditation and deliberation. The Court of Appeal rejects the argument, holding that the plain language of PC 1172.6 does not permit reducing a first-degree murder conviction to second-degree.

Jan. 20, 2023 – People v. Morgan (4th Dist., Div. 1, D080016)

The Court of Appeal holds that the trial court erred when it treated defendant’s conviction for DUI (VC 23152) as a felony under VC 23550.5(b), which elevates DUI offenses to felonies if the defendant was previously convicted of certain offenses. The Court of Appeal reasons that neither of defendant’s two prior convictions are included in VC 23550.5(b), and that the trial court could not combine the two convictions so as to trigger application of VC 23550.5(b).

Jan. 19, 2023 – People v. Davis (1st Dist., Div. 1, A164046)

The Court of Appeal holds that defendant was not entitled to presentence custody credits under PC 2900.5 for time spent in a residential treatment program where he voluntarily entered the program and his stay there was not attributable to the proceedings relating to his conviction.

Jan. 19, 2023 – In re D.P. (Supreme Ct., S267429)

The Supreme Court agrees with the Court of Appeal that father’s appeal is moot, as stigma alone is not enough to avoid mootness, and father did not provide a tangible legal or practical consequence that would be remedied by a favorable decision on appeal. The Supreme Court concludes, however, that the Court of Appeal erred in determining it did not have discretion to consider a moot appeal. The Supreme Court reverses the Court of Appeal’s judgment dismissing the appeal and remands with directions to reconsider father’s argument that discretionary review is warranted.

Jan. 18, 2023 – Review Grant – In re Tellez (S277072, D079716)

“(1) Does constitutionally effective assistance of counsel require defense counsel to advise a defendant that a guilty plea may subject the defendant to commitment proceedings under the Sexually Violent Predator Act (Welf. & Inst. Code, § 6600 et seq.; SVPA)? If so, did petitioner in this case suffer prejudice? (2) In the alternative, should this Court, in the exercise of its supervisory powers (see, e.g., People v. Howard (1992) 1 Cal.4th 1132, 1175; Bunnell v. Superior Court (1975) 13 Cal.3d 592, 605), require that a defendant be advised that a guilty plea may subject him to SVPA commitment proceedings? If so, is petitioner entitled to relief?”

Jan. 18, 2023 – People v. Silva (5th Dist., F083248)

The Court of Appeal affirms the trial court’s finding, following a PC 1172.6(d)(3) hearing, that defendant was guilty of directly aiding and abetting implied malice murder. The court “adopt[s] the reasoning of every court to have addressed this issue and conclude[s] that implied malice remains a valid theory of liability for aiders and abettors to murder” after SB 1437. The court finds substantial evidence to support the theory here based on defendant’s participation in a fatal stabbing perpetrated by members of the Mongols motorcycle club.

Jan. 17, 2023 – Sarah K. v. Sup. Ct (1st Dist., Div. 2, A165607)

The Court denies mother’s petition for extraordinary writ, agreeing with the juvenile court that return of the child to mother’s custody posed a substantial risk of detriment due to mother’s history of drug use and relapse, a prior dependency case, and the minor had grown attached to her foster family. Justice Stewart wrote a lengthy dissent arguing the juvenile court must assess whether a parent who has availed themselves of reunification services poses a current safety risk to their child that is substantial.

Jan. 13, 2023 – People v. Nash (4th Dist., Div. 1, D079539)

Defendant was convicted of three counts of lewd acts (PC 288(a)) against two victims, both under the age of 14. The Court of Appeal rejects the People’s argument that defendant’s sentence – three concurrent terms of 15 years to life – was unauthorized because PC 667.61(j)(2) mandated a sentence of 25 years to life on each count. The court reasons that because the information expressly specified that defendant’s exposure on each count was 15 years to life, defendant did not receive fair notice that the actual exposure on each count was 25 years to life.

Note: A similar issue is currently pending in the California Supreme Court in In re Vaquera, S258376.

Jan. 13, 2023 – Cert. Grant – Counterman v. Colorado (U.S. Supreme Ct., 22-138)

“Whether, to establish that a statement is a ‘true threat’ unprotected by the First Amendment, the government must show that the speaker subjectively knew or intended the threatening nature of the statement, or whether it is enough to show that an objective ‘reasonable person’ would regard the statement as a threat of violence.” 

Note: This issue has possible implications for prosecutions under California threat statutes such as PC 69, 71, 76, and 422. Given the timing of the cert. grant, the case is likely to be argued and decided this term.

Jan. 12, 2023 – People v. Superior Court (Cortez) (6th Dist., H049188)

In a writ proceeding, the Court of Appeal holds that suspected “kites” contained within an envelope sent by a jail inmate to his attorney were not protected by the attorney-client privilege, where most or all of the suspected kites originated from other inmates and were addressed to people other than the attorney. The court reasons that “putting something in an envelope addressed to an attorney does not automatically render the item privileged.”

Jan. 11, 2023 – Review Grant – People v. Hardin (S277487, B315434)

“This case presents the following issue: Does Penal Code section 3051, subdivision (h), violate the Equal Protection Clause of the Fourteenth Amendment by excluding young adults sentenced to life without the possibility of parole from youth offender parole consideration, while young adults sentenced to parole-eligible terms are entitled to such consideration?”

Jan. 9, 2023 – People v. Cress (4th Dist., Div. 2, E079484)

The Court of Appeal affirms the dismissal of defendant’s second PC 1172.6 petition, which defendant filed while the denial of his first petition was still pending on appeal. The court holds that, while a trial court lacks jurisdiction to grant a petition while an appeal is pending, a trial court may dismiss a petition because a dismissal does not affect the judgment pending on appeal. The court further finds that any error in dismissing the second petition was harmless because the dismissal does not bar further proceedings on the first petition or the refiling of a second petition after the first petition is decided.

Jan. 6, 2023 – People v. Superior Court (Cheek) (6th Dist., H049691)

The superior court ordered the release of a sexually violent predator to a residence within a quarter mile of a private home school that did not exist until after community notification of defendant’s release. The Court of Appeal grants the district attorney’s writ of mandate, finding the statute (WIC 6608.5(f)) applies to home schools, and does not require the school to have been operating for a particular time. The dissent cautions that “the tactical filing of home-schooling affidavits” maximizes the likelihood of the defendant’s release as a transient.

Jan. 5, 2023 – In re D.B. (4th Dist., Div. 2, E079380)

In an appeal from the termination of parental rights, the Court of Appeal agrees that the Department failed to comply with its duty of initial inquiry into father’s Indian ancestry. Applying the standard set forth in In re Benjamin M. (2022) 70 Cal.App.5th 735, the court finds the error prejudicial and conditionally reverses the matter to allow the Department to fully comply with the ICWA.

Jan. 3, 2023 – People v. Guiffreda (4th Dist., Div. 1, D079834)

The Court of Appeal reverses the denial of defendant’s PC 1172.6 resentencing petition, finding insufficient evidence that she acted with reckless indifference to human life. Applying the relevant Clark factors, the court finds that defendant did not use a weapon (nor was there any evidence that she knew a weapon would be used) during the robbery, was not present when the actual killer obtained the murder weapon, and did not know the actual killer was likely to use lethal force. The court remands with instructions to grant the petition, vacate the murder conviction, and conduct further proceedings.

Dec. 30, 2022 – In re O’Connor (6th Dist., H049878)

Petitioner was denied bail after being charged with twelve counts of felony child endangerment (PC 273a(a)) based on an eight-month period during which she allegedly supplied her 14-year-old son and other minors with alcohol and encouraged them to engage in sexual activity with one another when intoxicated. Following a grant-and-transfer from the Supreme Court, the Court of Appeal holds that petitioner was charged with “[f]elony offenses involving acts of violence on another person” under Cal. Const., art. I, § 12, subd. (b), and that the trial court did not abuse its discretion in denying bail.

Dec. 30, 2022 – Box v. Superior Court (4th Dist. Div. 1, D080573)

The Court of Appeal issues a writ of mandate directing the superior court to vacate and reconsider its order denying defendant’s motion to compel postconviction discovery pursuant to PC 1054.9, which was sought to facilitate a Batson/Wheeler challenge. The court reaffirms that the prosecution’s jury selection notes are not categorically shielded from discovery by the absolute work product privilege, although redactions may be appropriate upon an adequate showing by the prosecution that the disclosure would reveal impressions, opinions, or legal research or theories unrelated to jury selection.

Dec. 29, 2022 – People v. Lipscomb (1st Dist., Div. 2, A164755)

The Court of Appeal holds the trial court was not required to strike a firearm enhancement under amended PC 1385(c)(2)(C) (SB 81), which requires the court to consider whether imposition of an enhancement would result in a sentence over 20 years, because the trial court determined that dismissal of the enhancement would endanger public safety. The court reasons that subdivision (c)(2)(C)’s “shall be dismissed” language must be interpreted in the context of PC 1385 as a whole, which preserves the authority of judges to impose enhancements to protect public safety.

Dec. 29, 2022 – People v. Tacardon (Supreme Ct., S264219)

Disapproving People v. Kidd (2019) 36 Cal.App.5th 12, the Supreme Court holds that defendant was not under detention when the officer made a U-turn, parked behind defendant’s car, shined a spotlight on it, and began to approach on foot. The court emphasizes that “shining a spotlight for illumination does not ipso facto constitute a detention.” Justices Groban and Liu dissent, with Justice Liu writing that the majority opinion “stretches the concepts of a ‘consensual encounter’ and being ‘free to leave’ beyond the bounds of common understanding and ordinary experience.”

Dec. 29, 2022 – People v. Kelly (2nd Dist., Div. 6, B318060)

The Court of Appeal holds that PC 1170(b)(6), as amended by AB 124 and SB 567, does not apply to sentences imposed pursuant to a negotiated disposition that includes an agreed-upon term of imprisonment.

Note: A similar issue is currently pending in the California Supreme Court in People v. Mitchell (S277314).

Dec. 28, 2022 – People v. Ross (1st Dist., Div. 3, A163242)

The Court of Appeal remands for SB 567 resentencing, finding that although the trial court relied on defendant’s prior convictions to impose the upper term, it also cited aggravating factors that were neither stipulated to by defendant nor found true by the jury beyond a reasonable doubt. The court adopts the two-step harmless error standard identified in People v. Lopez (2022) 78 Cal.App.5th 459 and finds it cannot conclude, to the degree required by Watson, that the trial court “would have exercised its discretion in the same way” in the face of SB 567’s new mid-term presumption.

Dec. 27, 2022 – People v. White (3rd Dist., C095640)

The Court of Appeal holds that because a Franklin hearing (PC 3051) is an “evidence preservation process” that does not reopen a final judgment or sentence, appellant was not entitled to the retroactive application of AB 518 to his long-final sentence. The court also rejects appellant’s argument that the failure to remand for AB 518 resentencing violates equal protection.

Dec. 27, 2022 – People v. Williams (1st Dist., Div. 3, A164862)

The Court of Appeal affirms the prima facie denial of appellant’s PC 1172.6 resentencing petition, finding the jury instructions at appellant’s trial, together with the jury’s true finding on the drive-by shooting special circumstance, conclusively establish the jury found appellant acted with the requisite intent and conduct to convict him of first degree murder under PC 188 and 189 as amended by SB 1437.

Dec. 23, 2022 – People v. Whitmill (2nd Dist., Div. 8, B318582)

The Court of Appeal reverses the denial of appellant’s pretrial motion for mental health diversion under PC 1001.36, finding: (1) the trial court imposed incorrect standards in denying diversion; and (2) there was no substantial evidence that appellant was too dangerous to be treated in the community because he would commit a new violent super strike. The court remands with directions to refer defendant to mental health diversion, “to avoid the unnecessary delay occasioned by yet another hearing.”

Dec. 23, 2022 – People v Jones (1st Dist., Div. 5, A162634)

The Court of Appeal vacates the trial court’s denial of defendant’s PC 1172.6 resentencing petition, finding that, although the evidence would otherwise have been sufficient to support the court’s reckless indifference and major participant findings, “the totality of circumstances necessarily includes the defendant’s youthful age, which the record does not indicate the court considered.”

Dec. 23, 2022 – Casey N. v. County of Orange (4th Dist., Div. 3, G059917)

Mother sued the County of Orange and two employees of the Agency for violation of her civil rights to familial association (42 USC 1983). The Court of Appeal affirms the jury’s decision finding in mother’s favor and awarding her damages. The court reiterates the need for sufficient and appropriate training for all Agency employees and the “absolute necessity of complete, accurate, and honest reports by the Agency in dependency cases.”

Dec. 22, 2022 – In re M.G. (6th Dist., H050341)

In a habeas proceeding, the Court of Appeal holds that WIC 5276 imposes a mandatory duty to conduct an evidentiary hearing within two judicial days of a detained person’s request, and that the failure to do so requires that the detainee be immediately released. The court ultimately dismisses the habeas petition as moot because petitioner had already been released.

Dec. 22, 2022 – In re S.V. (1st Dist., Div. 5, A163272)

In an appeal from jurisdiction and disposition, the Court of Appeal finds the juvenile court violated mother’s due process rights when it established jurisdiction based on the conduct of a parent the Department never alleged was an offending parent and on a factual and legal theory not raised in the Department’s petition.

Dec. 21, 2022 – People v. Carter (3rd Dist., C094949)

In an appeal from an SVP commitment following a bench trial, the Court of Appeal finds that the trial court did not abuse its discretion in denying defendant’s Marsden motion – despite trial counsel not bringing a motion to dismiss even after a more than 12-year delay in bringing defendant to trial – and that defendant was adequately advised of his jury trial right before waiving it. The dissent would conditionally reverse the judgment with directions for trial counsel “to investigate and decide whether a motion to dismiss for violation of defendant’s right to a timely trial has merit.”

Dec. 21, 2022 – People v. Kocontes (4th Dist., Div. 3, G059475)

The Court of Appeal affirms defendant’s murder conviction, finding the county had jurisdiction where the crime occurred on the high seas, no Massiah violation occurred, the government did not engage in outrageous conduct by allegedly interfering with the defense team, COVID-19 protocols did not violate defendant’s rights, the Marsden motions were properly denied, and the trial court appropriately addressed juror misconduct. The Court of Appeal also finds that defendant’s prior inappropriate relationship, a lab report, and emails by the deceased should not have been admitted, but that the errors were harmless.

Dec. 21, 2022 – Statement Concurring With Order Denying Review – People v. Rivera (S276624, B300948)

In a case where the Court of Appeal affirmed defendant’s convictions of two counts of first-degree murder, Justice Groban, joined by Justices Jenkins and Liu, issues a statement concurring with the order denying review. Justice Groban writes that he has “serious doubts” as to whether statements obtained from defendant were obtained lawfully under Miranda, but he does not vote to grant review in light of the Court of Appeal’s finding that admission of the statements was harmless. Justice Groban observes that “[p]erhaps a more complete record, developed on habeas corpus, will present a different picture.”

Dec. 19, 2022 – In re Chunn (1st Dist., Div. 1, A162583)

In an appeal from the trial court’s countywide standing order finding that the DSH was not adequately meeting its primary responsibility for the assessment and treatment of defendants found incompetent to stand trial under PC 1368, the Court of Appeal holds that the order did not violate separation of powers principles at the time it was made, nor, for the most part, did it conflict with Stiavetti v. Clendenin (2021) 65 Cal.App.5th 691. Nevertheless, due to changes in the law, the Court of Appeal remands for the trial court to reconsider its order in light of Stiavetti and relevant statutory amendments.  

Dec. 19, 2022 – People v. Consiglio (4th Dist., Div. 1, D079883)

In an appeal from the denial of a petition for unconditional discharge under the SVP Act, the Court of Appeal finds that the trial court failed to apply the proper reasonable person standard for determining whether there was probable cause to believe that appellant no longer qualified as an SVP, and improperly rejected the DHS psychologist’s opinion that appellant no longer so qualified. The Court of Appeal remands for the trial court to set the matter for a full unconditional-discharge hearing under WIC 6605(a)(3).

Dec. 19, 2022 – People v. Delgadillo (S266305)

The Supreme Court holds that Wende procedures do not apply to the appeal from the denial of a PC 1172.6 resentencing petition. Though the defendant may submit a supplemental brief after appellate counsel files a no-issues brief, the Court of Appeal is not required to independently review the record and may dismiss the appeal if the defendant does not file such a brief.

Dec. 16, 2022 – People v. Arellano (6th Dist., H049413)

The Court of Appeal holds that the plain meaning of the phrase “target offense or underlying felony” in PC 1172.6(e) does not authorize a court to include a sentence enhancement when it redesignates a vacated conviction as the target offense or underlying felony for resentencing purposes.

Dec. 16, 2022 – Amber G. v. Superior Court (4th Dist., Div. 3, G061684)

The Court of Appeal grants the minor and prospective adoptive parent/de facto parent’s petition for extraordinary writ from the juvenile court’s orders removing the minor from the adoptive parent’s home and placing the child with out-of-state relatives she has never met. The Court of Appeal finds the juvenile court erred when it focused on the reasons for the delay in placing the child with her relatives and neglected to sufficiently consider the requirements of WIC 366.26(n).

Dec. 15, 2022 – People v. Burgess (1st Dist., Div. 3, A164763, A164969)

In February 2022, defendant filed a pro per motion to vacate his prior-prison-term enhancement (PC 667.5(b)) pursuant to SB 483 and PC 1172.75 (formerly PC 1171.1). The trial court denied the motion on the ground that PC 1172.75 does not allow a defendant to seek such relief on their own motion. The Court of Appeal dismisses defendant’s appeal as taken from a nonappealable order, holding that only CDCR may initiate a resentencing under PC 1172.75.

Dec. 15, 2022 – People v. Walker (2nd Dist., Div. 2, B319961)

Considering two issues of first impression related to PC 1385 as amended by SB 81, the Court of Appeal holds: (1) where there are multiple enhancements in a single case, the court is not required to dismiss all but one enhancement under subdivision (c)(2)(B), which provides that “all enhancements beyond a single enhancement shall be dismissed”; and (2) the mandate to “afford great weight” to the enumerated mitigating circumstances erects a rebuttable presumption that obligates a court to dismiss the enhancement unless it finds dismissal would endanger public safety.

Dec. 15, 2022 – People v. Sherman (1st Dist., Div. 4, A162766)

The Court of Appeal holds there was sufficient evidence defendant attempted to dissuade a witness or victim from reporting a crime (PC 136.1(b)(1)) where the crime was ongoing when defendant attempted to prevent the victim from using her phone to call for help. The court rejects defendant’s argument that the statute applies to past crimes only.

Dec. 14, 2022 – People v. Castro (2nd Dist., Div. 1, B318174)

On appeal from the denial of a motion to suppress, the Court of Appeal holds that the officer had probable cause to search appellant’s car under the automobile exception to the warrant requirement based on the “strong odor” of “burnt marijuana” emanating from appellant’s car, appellant’s admission he had smoked marijuana 2 hours earlier, and the fact that all occupants of the car were under 21 years of age.  

Dec. 14, 2022 – In re Adrian L. (2nd Dist., 1st Div., B318627)

The Court of Appeal finds that in reviewing the record as a whole, it is unlikely that unquestioned extended family members would have information that would have borne meaningfully on the question of whether the child was an Indian child. The court thus holds that ICWA-inquiry error under WIC 224.2(b) was harmless. The concurring opinion reviews the statutory obligation and argues for a narrow construction of the duty to inquire under subdivision (b).

Dec. 14, 2022 – Review Grant – People v. Mitchell (S277314, A163476)

“This case presents the following issue: Does Senate Bill No. 567 (Stats. 2021, ch. 731), which limits a trial court’s discretion to impose upper term sentences, apply retroactively to defendants sentenced pursuant to stipulated plea agreements?”

Dec. 13, 2022 – Cert. Grant – Samia v. United States (U.S. Supreme Ct., 22-196)

“Whether admitting a codefendant’s redacted out-of-court confession that immediately inculpates a defendant based on the surrounding context violates the defendant’s rights under the Confrontation Clause of the Sixth Amendment.”

Note: This case marks the first time in decades that the U.S. Supreme Court has addressed the confrontation clause limits on admission of a non-testifying codefendant’s redacted statement. The case is set for oral argument on March 29, 2023.

Dec. 13, 2022 – People v. Superior Court (Mendez) (4th Dist., Div. 2, E079069)

In a writ proceeding, the Court of Appeal reverses the trial court’s order granting defendant’s motion under PC 995 to dismiss a charge of assault with a deadly weapon (PC 245(a)(1)). The court reasons that the magistrate’s finding of insufficient evidence to support the charge does not qualify as a “factual finding” entitled to deference, and that the evidence at the preliminary hearing, under independent review, established sufficient cause to believe that defendant committed the offense.

Dec. 13, 2022 – People v. Johnson (1st. Dist., Div. 1, A163941)

A jury convicted defendant of arson (PC 451) and sustained an enhancement under PC 451.1 after she was found to have poured whiskey onto a house’s cat door and lit the whiskey on fire. The Court of Appeal rejects the challenge to the enhancement, holding that whiskey, like gasoline, is a flammable liquid that qualifies as a “device designed to accelerate the fire” under PC 451.1(a)(5).

Dec. 12, 2022 – In re A.C. (2nd Dist., Div. 5, B319752)

The Court of Appeal accepts the parties’ stipulation and conditionally reverses the order terminating parental rights. On remand, the Department is to make ICWA inquiry of a non-related extended family member and available maternal and paternal family members. The dissenting opinion argues appellate review should be appropriately deferential and should look to the sufficiency of the evidence to ascertain whether an adequate inquiry has been made to determine whether a child is an Indian child.

Dec. 12, 2022 – In re D.N. (Supreme Ct., S268437)

The Supreme Court holds that a juvenile court order authorizing the probation department to offer the juvenile the option of community service hours to work off alleged probation violations did not constitute an improper delegation of judicial authority and did not violate due process. The Supreme Court finds that the juvenile court did not authorize the probation department to adjudicate violations, and instead simply gave advance approval to an agreement that might be reached between the juvenile and probation.

Dec. 8, 2022 – People v. Maldonado (1st. Dist., Div. 5, A161817)

The Court of Appeal holds that the trial court erred in denying defendant’s PC 1172.6 resentencing petition at the prima facie stage because defendant may have been convicted of first degree murder on a theory under which malice was imputed to him based solely on his participation in a crime.

Dec. 7, 2022 – People v. Lewis (5th Dist., F082553)

The Court of Appeal holds that, once a PC 12022.53 firearm enhancement is admitted or found true, trial courts are foreclosed by subdivision (j) of that statute from imposing punishment under PC 12022.5 instead.

Dec. 7, 2022 – People v. Carabajal (1st Dist., Div. 3, A162212)

Several months after defendant’s trial, the prosecutor informed defendant that on the second-to-last day of trial one of the sitting jurors had applied for a job as a victim-witness advocate with the prosecutor’s office and had subsequently been hired. After holding a hearing at which the juror testified, the trial court found no actual bias and denied defendant’s motion for new trial. The Court of Appeal affirms, holding that there is substantial evidence to support the finding of no actual bias, and that “the instant matter does not present an extraordinary case in which bias should be implied as a matter of law.”

Dec. 6, 2022 – People v. Baudoin (2nd Dist., Div. 1, B317130)

PC 1202.4(f)(3)(I) authorizes victim restitution for “[e]xpenses incurred by an adult victim in relocating away from the defendant [where] verified by law enforcement to be necessary for the personal safety of the victim or by a mental health treatment provider to be necessary for the emotional well-being of the victim.” The Court of Appeal holds the trial court erred by ordering relocation expenses under PC 1202.4(f)(3)(I) without requiring the necessary verification. The court remands for a new victim restitution hearing, “including affording the People an opportunity to provide the necessary verification.”

Dec. 6, 2022 – Claypool v. Superior Court (3rd Dist., C096620)

After performing a traffic stop on defendant’s car, police searched the car based on the parole status of a backseat passenger and found a loaded firearm inside a locked glove box. In a writ proceeding, the Court of Appeal reverses the denial of defendant’s motion to suppress, finding that the evidence does not support a reasonable inference that the backseat passenger could have secreted contraband in the glove box after becoming aware of police.

Dec. 6, 2022 – People v. E.M. (6th Dist., H049467)

The Court of Appeal holds that the trial court erred when it denied recall of defendant’s sentence based solely on the finality of defendant’s case, where the CDCR initiated the resentencing proceedings under former PC 1170(d) (now PC 1172.1). The Court of Appeal also holds that a subsequent letter from CDCR purporting to rescind its original recommendation did not moot the appeal because the original recommendation conferred jurisdiction on the trial court, and the statute does not authorize CDCR to eliminate the trial court’s jurisdiction.

Dec. 6, 2022 – People v. Demontoya (4th Dist., Div. 1, D079532)

The Court of Appeal affirms the denial, on collateral estoppel grounds, of defendant’s second motion to vacate under PC 1473.7. The court reasons that although PC 1473.7 was amended in 2018 – in between the filing of defendant’s first and second motions – to specify that “[a] finding of legal invalidity … need not … include a finding of ineffective assistance of counsel,” the effect of this amendment was considered in the appeal from the denial of defendant’s first motion. The court also rejects defendant’s argument that the second motion was based on new facts not litigated in the first motion.

Dec. 5, 2022 – People v. Henley (4th Dist., Div. 1, D079001)

Agreeing with People v. Cooper (2022) 77 Cal.App.5th 393, the Court of Appeal holds that the jury’s not-true finding on a firearm enhancement at defendant’s murder trial precluded the trial court from denying defendant’s PC 1172.6 resentencing petition based in part on the court’s finding, following a (d)(3) hearing, that defendant was personally armed with a firearm during the incident. The Court of Appeal reverses and remands for a new (d)(3) hearing.

Dec. 5, 2022 – People v. Ramirez (Supreme Ct., S262010)

On the morning after jury selection, defendant failed to appear, and the trial court was informed that emergency medical personnel and police had been dispatched to defendant’s home after his mother reported that he had possibly overdosed on heroin. The trial court was also informed that defendant had initially declined medical treatment before deciding to go to the hospital with his mother. In a 5-2 decision, the Supreme Court finds substantial evidence to support the trial court’s finding that defendant voluntarily absented himself from trial under PC 1043(b)(2). Justices Liu and Kruger dissent.

Dec. 2, 2022 – People v. Velez (5th Dist., F081839)

The Court of Appeal rejects defendant’s argument that the offense of carrying a loaded firearm in public without a license (PC 25850, 26010) was rendered unconstitutional by the U.S. Supreme Court’s recent decision in New York State Rifle & Pistol Assn., Inc. v. Bruen (2022) 142 S.Ct. 2111. The court reasons that although California’s licensing scheme includes a “good cause” requirement similar to the “proper cause” requirement found unconstitutional in Bruen, the requirement is severable and thus does not render the licensing scheme unconstitutional in its entirety.

Dec. 2, 2022 – People v. Avalos (4th Dist., Div. 3, G059107)

The Court of Appeal holds that an 18-year-old suspect did not knowingly and voluntarily waive his Miranda rights when he made incriminating statements to police the day after he invoked his right to counsel. The youth was kept overnight in a cold holding cell with inadequate clothing, had little previous experience with the criminal justice system, evinced confusion about the role of an attorney, and was encouraged by police to speak without an attorney present.

Dec. 1, 2022 – People v. Ware (Supreme Ct., S263923)

The Supreme Court holds that evidence of appellant’s gang membership, access to weapons, and social media posts celebrating violence against rival gangs was insufficient to support appellant’s conviction for conspiracy to commit murder.

Nov. 30, 2022 – People v. Braggs (6th Dist., H049710)

In an appeal from resentencing under former PC 1170(d) (now PC 1172.1), the Court of Appeal finds no prejudicial error because appellant was actually resentenced, just not to the extent recommended by CDCR. The court holds that the PC 1172.1 “presumption favoring recall and resentencing” is not a presumption for a particular sentence, and that the trial court retains discretion to impose sentence without any further application of the presumption. The court remands on the limited issue of whether to apply excess custody credits to appellant’s restitution fines and parole period.

Nov. 30, 2022 – In re G.Z. (2nd Dist., Div. 8, B313378)

In an appeal from jurisdiction and disposition, the Court of Appeal vacates the juvenile court’s jurisdictional findings for lack of substantial evidence and directs the court to dismiss the petition on remand. Even though the juvenile court terminated jurisdiction after the notice of appeal was filed, the Court of Appeal determines the appeal is not moot because the jurisdictional findings could adversely affect or prejudice mother.

Nov. 30, 2022 – Review Grant – In re Kenneth D. (S276649, C096051)

“This case presents the following issues: May an appellate court take additional evidence to remedy the failure of the child welfare agency and the trial court to comply with the inquiry, investigation, and notice requirements of the Indian Child Welfare Act (25 U.S.C. § 1901 et seq.; Welf. & Inst. Code, § 224 et seq.), and if so, what procedures must be followed?”

Nov. 29, 2022 – People v. Cannon (1st Dist., Div. 5, A163083)

In an appeal from an SVP commitment following a bench trial, defendant argued that the lack of a requirement that SVPs personally waive their jury trial right violates equal protection given that there is such a requirement for MDOs and NGIs. The Court of Appeal agrees with the parties that SVPs are similarly situated to MDOs and NGIs in this context and, applying rational basis review, rejects the AG’s two proffered rationales for the disparate treatment. The court remands “to give the People a meaningful opportunity to demonstrate a valid constitutional justification.”

Nov. 28, 2022 – People v. Bartholomew (2nd Dist., Div. 6, B316314)

The Court of Appeal holds that the People may not appeal a trial court’s post-preliminary hearing, pretrial order declaring a wobbler offense charged as a felony to be a misdemeanor, even when the order is in excess of the trial court’s jurisdiction.

Nov. 28, 2022 – People v. Camacho (Supreme Ct., S141080)

In an automatic appeal in a capital case, the Supreme Court affirms the conviction and death sentence, rejecting claims related to Verdin error for ordering defendant to submit to an examination by a prosecution mental health expert, evidentiary error, prosecutorial misconduct, Sanchez error, and penalty phase challenges to the excusal of a prospective juror, the scope of cross examination, instructional error, and the exclusion of defense expert testimony related to prison conditions.

Nov. 21, 2022 – In re Kowalczyk (1st Dist., Div. 3, A162977)

The Court of Appeal holds that the bail provisions of article I, section 28, subd. (f)(3) of the California Constitution (mandating that rights of crime victims be respected in bail and OR release determinations) can be reconciled with article I, section 12, and that both sections govern bail determinations in noncapital cases. The court “reject[s] any suggestion that section 12 guarantees an unqualified right to pretrial release or that it necessarily requires courts to set bail at an amount a defendant can afford.”

Nov. 21, 2022 – People v. Zarazua (1st Dist., Div. 3, A163474)

The Court of Appeal holds that the prosecutor’s repeated misgendering of defendant was harmless under any standard of prejudice given the voir dire on gender identity, the directive to the jury in CALCRIM No. 200 to not let bias of any kind affect their decision, and the overwhelming evidence of guilt. The court notes, however, that “[p]arties are to be treated with respect, courtesy, and dignity – including the use of preferred pronouns,” and that “[f]ailure to do so offends the administration of justice.”

Nov. 18, 2022 – People v. O’Day (1st Dist., Div. 3, A162303)

The Court of Appeal affirms the denial of defendant’s petition for factual innocence (PC 851.8), holding that the trial court did not abuse its discretion in finding that defendant failed to establish good cause for filing the petition more than 10 years after the statutory deadline. The dissent would hold that the evidence that defendant was not advised of or otherwise aware of the possibility of a petition for factual innocence was sufficient to establish good cause.

Nov. 17, 2022 – People v. Henderson (Supreme Ct., S265172)

The Supreme Court holds that, following Prop 36 (the Three Strikes Reform Act), a sentencing court retains discretion under People v. Hendrix (1997) 16 Cal.4th 508 to impose concurrent sentences on serious or violent felonies committed on the same occasion or arising from the same set of operative facts. Based on the trial court’s comments at sentencing suggesting it did not believe it had such discretion, the Supreme Court remands for a new sentencing hearing.

Nov. 17, 2022 – People v. Miranda-Guerrero (Supreme Ct., S118147)

In an automatic appeal in a capital case, the Supreme Court affirms the convictions and death sentence, rejecting claims relating to defendant’s Miranda waiver, defendant’s right to be personally present at certain proceedings, juror and prosecutorial misconduct, and the denial of defendant’s motion for new trial.

Nov. 16, 2022 – People v. Monroe (1st Dist., Div. 2, A164777)

PC 1172.75 (the SB 483 resentencing provision for prior-prison-term enhancements) provides that a court conducting a resentencing under the statute “shall apply … any … changes in law that reduce sentences or provide for judicial discretion so as to eliminate disparity of sentences and to promote uniformity of sentencing.” The Court of Appeal holds that this language requires a court conducting a resentencing under PC 1172.75 to apply SB 620 and SB 1393, including where the defendant’s original judgment of conviction became final prior to those bills’ effective dates.

Nov. 14, 2022 – People v. Griffin (4th Dist., Div. 2, E079269)

The Court of Appeal holds that in PC 1172.6 appeals where appointed counsel finds no arguable issues, the court will follow the procedures set out in People v. Wende (1979) 25 Cal.3d 436, including an independent review of the record. The court explains that “the interests of justice call for an independent review of the record as an additional layer of protection from the risk of a defendant remaining unlawfully incarcerated because of a failure to discover a meritorious issue.”

Note: This issue is currently pending in the California Supreme Court in People v. Delgadillo (S266305).

Nov. 10, 2022 – In re Jhonny S. (1st Dist., Div. 5, A164489)

The Court of Appeal holds that where a minor receives an honorable discharge from DJJ, WIC 1179(d) requires the juvenile court to dismiss the minor’s wardship petition.

Nov. 10, 2022 – People v. Garcia (1st Dist., Div. 3, A163046)

In an appeal following resentencing, the Court of Appeal finds that the trial court abused its discretion by denying the defense a reasonable continuance in order to develop facts in support of a discovery motion under the Racial Justice Act (PC 745).

Nov. 8, 2022 – People v. Berdoll (2nd Dist., Div. 6, B317129)

Defendant entered an open plea to offenses relating to child pornography (PC 311.4(c), 311.11(a)), and the trial court imposed its indicated, upper-term sentence. The Court of Appeal rejects defendant’s request for remand for retroactive application of SB 567. The court reasons that although the aggravating circumstances relied on by the trial court were not stipulated to by defendant or found true beyond a reasonable doubt, “[l]ogic and common sense lead us to conclude beyond a reasonable doubt that no jury and no trial court would impose a more favorable sentence upon remand.”

Nov. 8, 2022 – People v. Buchanan (6th Dist., H049838)

In an appeal transferred from the superior court’s appellate division, the Court of Appeal holds that where a defendant is cited and released with a notice to appear for a misdemeanor offense, and the prosecution declines to file a complaint by the promised appearance date but ultimately files a complaint within the statute of limitations, the interval between the promised appearance date and the filing of the complaint does not count towards the one-year threshold at which prejudice is presumed for the purposes of the defendant’s Sixth Amendment speedy trial right.

Nov. 8, 2022 – In re E.C. (5th Dist., F084030)

In an appeal from the termination of parental rights, the Court of Appeal agrees with appellant that there was a “reason to believe” E.C. may be an Indian child and that the Department’s failure to conduct a further inquiry and document the results in the record was error. The court denies the Department’s request to consider postjudgment evidence relating to its inquiry of the family members. The court conditionally reverses the order finding the ICWA does not apply and remands with directions.

Nov. 1, 2022 – In re Foster (1st Dist., Div. 2, A160713)

In a habeas proceeding, the Court of Appeal holds that the Parole Board’s denial of petitioner’s request to present witnesses at his parole rescission hearing violated the Board’s own procedural rules as well as petitioner’s due process rights. The court further finds that the matter is not moot, despite petitioner having had two further parole suitability hearings, and that petitioner did not forfeit his due process challenge by failing to object at the rescission hearing to the denial of his request to present witnesses.

Oct. 31, 2022 – People v. Machado (2nd Dist., Div. 1, B311023)

In affirming the denial of appellant’s petition for resentencing under PC 1172.6, the Court of Appeal holds that a stipulation from the parties to waive the resentencing hearing does not bind the trial court to resentence the defendant if the evidence does not support such eligibility.

Oct. 28, 2022 – People v. Vargas (2nd Dist., Div. 2, B313853)

In affirming the denial of appellant’s petition for resentencing under PC 1172.6, the Court of Appeal holds that substantial evidence supports the trial court’s finding that appellant acted with implied malice in aiding and abetting the murder where she directed the actual killer to fire a gun into a brawl and then did not object when the actual killer walked up to the victim and shot him in the back of the head.

Oct. 27, 2022 – People v. Duran (2nd Dist., Div. 2, B317640)

The Court of Appeal holds the trial court properly admitted at a PC 1172.6 evidentiary hearing defendant’s statements made to a psychologist during a parole interview. The court finds use immunity does not apply because (1) the privilege against self-incrimination is not implicated at a PC 1172.6 evidentiary hearing; and (2) the prior statements were introduced to impeach defendant’s sworn statement about his eligibility for relief, and the privilege against self-incrimination does not encompass a right to lie.

Oct. 27, 2022 – In re Oscar H. (2nd Dist., Div. 8, B318634)

The Court of Appeal conditionally reverses the order terminating parental rights and remands the matter to allow the juvenile court and the Department to fully comply with the ICWA duty of inquiry. The court notes the error was prejudicial as the Department failed to take simple steps to inquire of father and paternal relatives regarding possible Indian heritage.

Oct. 26, 2022 – Review Grant – Needham v. Superior Court (S276395, G060670)

“This case presents the following issue: Does the Sexually Violent Predator Act (Welf. & Inst. Code, § 6600 et seq.) allow the People to retain a private expert to testify at trial as to whether a defendant is a sexually violent predator, or are the expert witnesses limited to those designated by the State Department of State Hospitals (Welf. & Inst. Code, §§ 6601 & 6603)?”

Oct. 26, 2022 – Review Grant – People v. McCune (S276303, A163579)

“This case presents the following issue: Did the trial court exceed its jurisdiction by setting the amount of victim restitution after terminating defendant’s probation pursuant to Assembly Bill No. 1950 (Stats. 2020, ch. 328)?”

Oct. 25, 2022 – People v. Picazo (1st Dist., Div. 2, A161621)

After his convictions for multiple sex offenses, appellant argued the trial court erred in permitting the two victims to be accompanied by a support dog named Clover while testifying. The Court of Appeal rejects the challenge, finding the prosecution made a sufficient factual justification under PC 868.4; that the trial court took adequate precautions to minimize distractions of the dog’s presence; and that the jury was properly instructed to not consider the dog’s presence for any purpose.

Oct. 24, 2022 – In re K.H. (5th Dist., F084002)

Adopting a hybrid standard of review, the Court of Appeal finds that the juvenile court’s ICWA finding was not supported by substantial evidence and that it abused its discretion in concluding otherwise. The court explains that claims of error must be evaluated in view of the remedial purpose underlying ICWA and California law. Relying on the reasoning of In re A.R. (2021) 11 Cal.5th 234, the court finds the prejudice to the rights protected by the ICWA should be injury-focused rather than outcome-focused.

Oct. 21, 2022 – People v. Keel (4th Dist., Div. 1, D079181)

The Court of Appeal reverses the trial court’s denial of defendant’s PC 1172.6 resentencing petition, finding insufficient evidence that defendant, 15 years old at the time of the offense, acted with reckless indifference to human life. The court finds that defendant’s young age “bears significantly on his culpability” and greatly diminishes any inference he acted with reckless indifference. The court remands with instructions to grant the resentencing petition, vacate the murder conviction, and transfer the case to juvenile court pursuant to Prop 57.

Oct. 21, 2022 – Adoption of M.R. (3rd Dist., C095856)

Pursuant to Family Code 7820 or 7822 or Probate Code 1516.5, the court, petitioner, and court-appointed investigator have an affirmative and continuing duty to inquire whether the child is, or might be, an Indian child. The Court of Appeal finds the trial court made neither express nor implied findings as to application of the ICWA as required by law. The court conditionally reverses and remands for ICWA compliance.

Oct. 20, 2022 – People v. Schell (2nd Dist., Div. 6, B313694)

Following an evidentiary hearing, the trial court denied defendant’s request for resentencing under PC 1172.6 because his participation in a group assault supported a finding of implied malice murder. The Court of Appeal affirms, finding substantial evidence of implied malice where defendant actively participated in the assault where co-participants were using weapons. The court also holds that SB 775 did not invalidate guilt for implied malice murder based on an aiding and abetting theory, and that the prosecution may present a new theory of guilt at a PC 1172.6 evidentiary hearing.

Oct. 19, 2022 – People v. Vizcarra (4th Dist., Div. 1, D078869)

In an appeal from the denial of defendant’s petition for resentencing under PC 1172.6, the Court of Appeal affirms the trial court’s finding, following a PC 1172.6(d)(3) hearing, that defendant was guilty of directly aiding and abetting implied malice murder. The court holds that aiding and abetting implied malice murder is a valid theory of murder liability, and that there was substantial evidence supporting the theory here. The court also rejects defendant’s argument that the PC 1172.6 proceedings rendered his case nonfinal for the purposes of SB 1393.

Oct. 19, 2022 – Review Grant – People v. Rojas (S275835, F080361)

“The issue to be briefed and argued is limited to the following: Does Assembly Bill No. 333 (Stats. 2021, ch. 699) unconstitutionally amend Proposition 21, if applied to the gang-murder special circumstance (Pen. Code, § 190.2, subd. (a)(22))?”

Oct. 19, 2022 – Review Grant – People v. Clark (S275746, E075532)

“The issue to be briefed and argued is limited to the following: Can the People meet their burden of establishing a ‘pattern of criminal gang activity’ under Penal Code section 186.22 as amended by Assembly Bill No. 333 (Stats. 2021, ch. 699) by presenting evidence of individual gang members committing separate predicate offenses, or must the People provide evidence of two or more gang members working in concert with each other during each predicate offense?”

Oct. 19, 2022 – In re A.H. (1st Dist., Div. 2, A163882)

The Court of Appeal finds the juvenile court failed at multiple junctures and in multiple ways to afford proper notice to father of the dependency proceedings and of his rights as an alleged father. The court finds the juvenile court violated father’s statutory and due process rights, which cumulatively resulted in a process that was fundamentally unfair. The court reverses the order terminating parental rights.

Oct. 18, 2022 – In re Tellez (4th Dist., Div. 1, D079716)

Defendant filed a habeas petition alleging his counsel rendered ineffective assistance by failing to advise him before his plea that he could be subject to lifetime commitment under the SVP Act. The Court of Appeal denies the petition, finding that defendant had not stated a prima facie case for relief. The court concludes that advisement of potential SVP Act consequences is not constitutionally required and that the failure to advise of such consequences does not violate prevailing profession norms.

Oct. 18, 2022 – In re T.O. (4th Dist. Div. 2, E077783)

The Court of Appeal holds that the plain language of PC 290.008 makes clear that sex offender registration is only required for those juvenile offenders committed and discharged or paroled from the DJJ; it does not apply to juvenile offenders, like appellant, who are committed to local secure facilities even following S.B. 823, which codified the plan to close the DJJ.

Oct. 18, 2022 – People v. Hardin (2nd Dist., Div. 7, B315434)

The Court of Appeal holds that PC 3051(h), which excludes from the youth offender parole scheme defendants who were sentenced to LWOP for an offense committed between the ages of 18 and 25, violates equal protection. For the purposes of determining eligibility for youth offender parole, there is no rational basis for distinguishing between young adults sentenced to LWOP and young adults sentenced to a parole-eligible life term.

Oct. 12, 2022 – Review Grant – People v. Salazar (S275788, B309803)

“The issue to be briefed and argued is limited to the following: Did the Court of Appeal err by finding the record clearly indicates the trial court would not have imposed a low term sentence if it had been fully aware of its discretion under newly-added subdivision (b)(6) of Penal Code section 1170? (See People v. Gutierrez (2014) 58 Cal.4th 1354, 1391.)”

Oct. 12, 2022 – Review Grant – People v. Burgos (S274743, H045212)

After initially granting review and deferring further action pending People v. Tran (2022) 13 Cal.5th 1169, the Supreme Court orders briefing on the following issue: “Does the provision of Penal Code section 1109 governing the bifurcation at trial of gang enhancements from the substantive offense or offenses apply retroactively to cases that are not yet final?”

Oct. 11, 2022 – Conservatorship of A.A. (1st Dist., Div. 1, A164854)

In a challenge to a “Murphy” conservatorship established under WIC 5008(h)(1)(B), the Court of Appeal holds that appellant’s no-contest plea satisfies the statute’s requirement of a finding of probable cause that the conservatee committed a criminal offense involving death, great bodily harm, or serious threat (WIC 5008(h)(1)(B)(ii)). Appellant entered a no-contest plea to vehicular manslaughter before being found incompetent, and the validity of the plea was not challenged.

Oct. 6, 2022 – In re G.H. (4th Dist., Div. 3, G061166)

The Court of Appeal reverses the order terminating parental rights and remands the matter for the Agency to conduct an adequate ICWA inquiry as to the paternal grandmother. The court notes that the inquiry duty rests with the Agency and the court, not the parent. When there has been no investigation, it cannot be said there is no reason to know whether the child is an Indian child.

Oct. 4, 2022 – People v. Johnson (3rd Dist., C094491)

The Court of Appeal holds that when a trial court exercises discretion to strike a PC 12022.53(b) enhancement under SB 620, it may substitute a lesser uncharged firearm enhancement pursuant to a different statute. The court notes a split of authority on the issue after People v. Tirado (2022) 12 Cal.5th 688 left unresolved a conflict with other unamended statutory provisions requiring imposition of the harshest available punishment. Note: This issue is currently pending in the California Supreme Court in People v. McDavid (S275940).

Oct. 3, 2022 – People v. Mitchell (1st Dist., Div. 5, A163476)

The Court of Appeal holds that SB 567’s amendments to PC 1170(b) do not apply retroactively to sentences imposed pursuant to stipulated plea agreements, where the court had no opportunity to exercise any discretion in deciding whether to impose the upper, middle, or lower term. The court reasons that SB 567’s legislative history supports this conclusion. The court also concludes that because appellant waived her trial rights as part of the plea, there was no violation of her Sixth Amendment rights when aggravating circumstances were not found beyond a reasonable doubt.

Sep. 30, 2022 – People v. Nonaka (2nd Dist., Div. 6, B313848)

In a People’s appeal from the denial of a motion for victim restitution, the Court of Appeal reverses and holds that the trial court erred when it concluded a civil settlement and release of liability signed by the victim in a related civil case discharged the defendant’s obligation to pay restitution in the criminal case. The court reasons that any purported waiver to the constitutional right to restitution entered in civil court is not enforceable in criminal court, and that the People did not agree to the civil settlement.

Sep. 29, 2022 – People v. Boukes (4th Dist., Div. 2, E077058)

Disagreeing with People v. Burgos (2002) 77 Cal.App.5th 550, the Court of Appeal holds that AB 333’s addition of PC 1109, which allows for bifurcation of trials on gang enhancements, does not reduce punishment and therefore does not apply retroactively to nonfinal cases. A concurring opinion concludes that PC 1109 is ameliorative and therefore applies retroactively to nonfinal cases, but agrees with the majority that the lack of bifurcation here was harmless.

Sep. 28, 2022 – Review Grant – People v. McDavid (S275940, D078919)

“This case presents the following issue: Does the trial court have discretion to strike a firearm enhancement imposed pursuant to Penal Code section 12022.53 and instead impose a lesser uncharged firearm enhancement pursuant to a different statute (Pen. Code, § 12022.5)?”

Sep. 28, 2022 – People v. Lastra (2nd Dist., Div. 6, B309385)

In the prosecution of several individuals for acts allegedly committed during a protest march, the Court of Appeal affirms the trial court’s disqualification of the entire office of San Luis Obispo County District Attorney for a conflict of interest (per PC 1424) based on the District Attorney’s public statements about the Black Lives Matter movement.

Sep. 26, 2022 – People v. Lopez (2nd Dist., Div. 2, B315320)

The Court of Appeal reverses the trial court’s order denying appellant’s motion to withdraw his plea and vacate his conviction pursuant to PC 1473.7(a). Citing appellant’s personal history, deep ties to the U.S., youth, and lack of criminal history, the court finds a reasonable probability appellant would not have pled to an offense that subjected him to mandatory deportation had he been properly advised of the immigration consequences of the plea.

Sep. 21, 2022 – In re Baby Girl M. (2nd Dist., Div. 5, B311176)

In an appeal from jurisdiction and disposition, father argued the Department did not comply with its ICWA inquiry obligation. The parties submitted a joint application and stipulation for remand, which the Court of Appeal rejects. The court finds the appeal to be moot because ICWA related obligations are continuing duties, and there is no effective relief it can provide.

Sep. 21, 2022 – Review Grant – In re Dezi C. (S275578, B317935)

“This case presents the following issue: What constitutes reversible error when a child welfare agency fails to make the statutorily required inquiry concerning a child’s potential Indian ancestry?”

Sep. 20, 2022 – People v. Heard (4th Dist., Div. 1, D079237)

The Court of Appeal holds as a matter of first impression that PC 1170(d)(1), which authorizes resentencing for juvenile offenders sentenced to LWOP, is inapplicable to juvenile offenders sentenced to the functional equivalent of LWOP. However, the court further holds that denying juvenile offenders serving the functional equivalent of LWOP the opportunity to petition for resentencing violates equal protection because they are similarly situated to eligible juvenile offenders seeking resentencing and because the differential treatment fails rational basis scrutiny.

Sep. 20, 2022 – In re R.O. (3rd Dist., C094816)

The Court of Appeal reverses the jurisdictional and dispositional orders, concluding the juvenile court deprived mother of her right to a contested jurisdictional hearing, as mother was not put on notice that the confirmation hearing would or could be converted into an uncontested jurisdictional hearing if she failed to appear.

Sep. 16, 2022 – In re J.K. (2nd Dist., Div. 6, B319316)

The Court of Appeal finds the ICWA duty of initial inquiry under WIC 224.2 was not satisfied and conditionally affirms the order terminating parental rights with a limited remand. The concurring opinion cautions that the child’s best interest should be the paramount concern. The dissenting opinion states that appellate courts “should not continue to slavishly adhere to the ICWA rules at the expense of the California Constitution.”

Sep. 15, 2022 – People v. Board of Parole Hearings (3rd Dist., C093941)

After appellant became eligible for a youth offender parole hearing under SB 394, the trial court granted the district attorney’s petition for writ of mandate and found the bill was an unlawful amendment to Prop 115 and violated the California Constitution. Without reaching the merits of the issue, the Court of Appeal reverses, finding the district attorney lacked standing to bring the petition.

Sep. 15, 2022 – People v. Fuller (4th Dist., Div. 2, E071794)

Interpreting People v. Tirado (2022) 12 Cal.5th 688, the Court of Appeal holds that a trial court has the discretion at sentencing to strike a firearm enhancement under PC 12022.53 and instead impose an uncharged lesser included enhancement under PC 12022.5.

Sep. 13, 2022 – People v. Garcia (1st Dist., Div. 5, A161579, A161644)

The Court of Appeal affirms the denial of defendants’ motion for mistrial, which defendants made following a 103-day midtrial delay caused by the COVID-19 pandemic. The court emphasizes that there is no “fixed rule” with respect to midtrial delays caused by COVID-19, and that “the unique facts of each case must govern the court’s analysis.” The court additionally holds that AB 518 applies retroactively to defendants’ case, but that even the amended version of PC 654 does not allow a trial court to “essentially strike” a special-circumstance finding by staying a sentence for special-circumstance murder.

Sep. 13, 2022 – People v. Sifuentes (1st Dist., Div. 4, A162225)

The Court of Appeal affirms the denial of a PC 1172.6 petition where the victim was a peace officer. The court reasons that the peace officer exception to PC 189(f) applies because, though defendant was not the actual killer, he should have known at the time of the killing that the victim was a peace officer engaged in the performance of his duties. The court also finds that the trial court appropriately held an evidentiary hearing in order to determine whether the peace officer exception applied.

Sep. 12, 2022 – People v. Thompson (6th Dist., H044699)

Among various other rulings, the Court of Appeal finds that defendant forfeited his challenge to the trial court’s for-cause dismissal of a prospective juror who expressed concerns about systemic bias against Black defendants. The concurring opinion would hold that the challenge was preserved, and that the prospective juror’s concerns did not justify dismissal. “Where, as here, the response to a prospective juror’s acknowledgement of systemic bias is incredulity and dismissal, I believe we have an obligation to say plainly: Recognizing systemic bias does not make a person unfit to serve as a juror.”

Sep. 12, 2022 – In re M.A. (6th Dist., H049482)

The Court of Appeal holds that “an offense enumerated” in PC 29805 does not have to be adjudicated as a misdemeanor to trigger a firearm prohibition for a minor under PC 29820.

Sep. 9, 2022 – People v. Salvador (6th Dist., H048162)

In a case in which appellant was charged with several sexual offenses against a minor, the Court of Appeal upholds probation conditions allowing for searches of appellant’s electronic devices and restricting his use of social media, but strikes a condition prohibiting him from using the internet without the prior approval of his probation officer. The court reasons that the condition is unconstitutionally overbroad in that the internet is “practically unavoidable in daily life” and the condition sweeps far more broadly than necessary to prevent appellant from contacting minors for sexual purposes.

Sep. 9, 2022 – People v. Bueno (4th Dist., Div. 1, D078700)

Appellant argued he could not be convicted of conspiracy to deliver a cell phone to an inmate (PC 4576) because he was the inmate to whom the phone was delivered. Appellant invoked the federal “buyer-seller rule” under which conspiracy liability is precluded where the only relationship between the alleged conspirators is that of a buyer and seller. The Court of Appeal rejects this reasoning, finding appellant was not merely a receiver of the phone, but participated in a plan with a third party to obtain and deliver the phone.

Sep. 8, 2022 – People v. Rowland (6th Dist., H048799)

Based on “cybertips” submitted by an anonymous Microsoft employee to the National Center for Missing and Exploited Children, police obtained and executed a search warrant for child pornography in defendant’s residence. The Court of Appeal affirms the denial of defendant’s motion to quash the search warrant, rejecting defendant’s argument that the anonymous cybertips lacked sufficient indicia of reliability. The court also vacates the unpaid balance of two fees invalidated by AB 1869.

Sep. 7, 2022 – In re Kenneth D. (3rd Dist., C096051)

The Court of Appeal finds that the Department and juvenile court failed to inquire as to father’s possible Native American heritage but that the error was not prejudicial. In reaching its decision, the court relies on post-termination evidence provided by the Department regarding its subsequent ICWA inquiry.

Sep. 2, 2022 – People v. Garcia (3rd Dist., C093430)

In a PC 1172.6 appeal, appellant contended the “actual killer” provision of PC 189(e)(1) was inapplicable as there is no “actual killer” within the meaning of the revised felony-murder rule when death results from a preexisting medical condition aggravated by stress. The Court of Appeal disagrees, finding appellant was the “actual killer” as the sole perpetrator of a robbery where a death occurred as a direct consequence of his actions.

Sep. 2, 2022 – In re Y.M. (4th Dist., Div. 1, D080349)

In an appeal from a WIC 366.26 hearing, the Department concedes, and the Court of Appeal agrees, that the Department did not comply with its WIC 224.2(b) duty of initial inquiry. However, the court applies the prejudice standard set forth in In re Benjamin M. and finds that the initial-inquiry error, a state law error, was not prejudicial and affirms the WIC 366.26 order.

Sep. 1, 2022 – People v. Nguyen (6th Dist., H047893)

Because dismissal of a complaint is not an available form of relief when a state violates the notice requirement of the Interstate Agreement on Detainers (PC 1389), the Court of Appeal holds that the magistrate’s dismissal of the complaints was erroneous as a matter of law, and that a remand for a hearing on the reasonableness of the state’s delay would serve no purpose.

Aug. 31, 2022 – Review Grant – Deputy District Attorneys v. Gascón (S275478, B310845)

“This case presents the following issues: (1) Does the Three Strikes law (Pen. Code, §§ 667, subds. (b)–(i), 1170.12) violate the separation of powers doctrine by requiring prosecutors to plead and prove prior qualifying felony convictions? (2) If there is a duty to plead prior qualifying convictions, is mandamus the proper remedy to compel a prosecutor to act?”

Aug. 29, 2022 – People v. Cheatham (3rd Dist., C094175)

Where defendant appealed a jury verdict extending his NGI commitment (PC 1026.5), the Court of Appeal holds that there was insufficient evidence of potential dangerous behavior as a result of a mental disorder, and that double jeopardy principles bar retrial of the extension petition.

Aug. 29, 2022 – People v. Tran (Supreme Ct., S165998)

In an automatic appeal after a judgment of death, the Supreme Court concludes AB 333’s amendments to PC 186.22 require reversal of the gang enhancement. The court declines to resolve the split in authority as to the retroactivity of PC 1109 because the failure to bifurcate was harmless as to appellant’s guilty verdicts and penalty judgment. The court otherwise affirms, rejecting challenges related to failure to sever, instructional errors, sufficiency of the evidence, inadmissible hearsay in gang expert testimony, speculative expert testimony, and the Eighth Amendment.

Aug. 26, 2022 – Bowden v. Superior Court (1st Dist., Div. 3, A163592)

The Court of Appeal issues a writ of mandate directing the superior court to vacate its order declining to apply AB 1950 to petitioner’s case. The court holds that AB 1950’s amendments to PC 1203 limited petitioner’s probation term for vehicular manslaughter while intoxicated (PC 191.5(b)) to two years, despite the fact that lesser included DUI offenses (VC 23153 and 23152) are exempt from the new two-year limit. The court further finds that remand is not required to allow the prosecution or trial court an opportunity to withdraw from the plea agreement.

Aug. 25, 2022 – People v. Aguayo (Supreme Ct., S254554)

Where defendant was convicted of both assault with a deadly weapon (PC 245(a)(1)) and assault by means of force likely to cause great bodily injury (PC 245(a)(4)) based on the same acts, the Supreme Court holds that both convictions cannot stand under PC 954, as they are different ways of stating the same offense.

Aug. 25, 2022 – In re Ricky R. (4th Dist., Div. 2, E078646)

The Court of Appeal finds the Department prejudicially erred by failing to comply with its duty of initial inquiry under WIC 224.2 when it failed to inquire of extended family members. The court denies the Department’s motion to dismiss the appeal and declines to consider postjudgment evidence of ICWA inquiries conducted while the appeal was pending. The court explains that it is the role of the juvenile court to consider in the first instance whether the Department discharged its duties under ICWA and related state law.

Aug. 25, 2022 – People v. Villa Ramirez (Supreme Ct., S099844)

In an automatic appeal in a capital case, the Supreme Court affirms defendant’s convictions and death sentence, rejecting claims related to bias on the part of the prosecutor’s office, change of venue, jury selection, and evidentiary error. Though the court rejects defendant’s penalty phase claim related to the prosecution’s use of inconsistent theories as to defendant’s involvement in an uncharged murder, two justices write a concurring opinion calling for “additional scrutiny” of the prosecutor’s motives by way of a habeas corpus petition.

Aug. 25, 2022 – People v. Renteria (Supreme Ct., S266854)

On insufficient evidence grounds, the Supreme Court reverses the finding that defendant committed the offense in order to benefit a street gang (PC 186.22(b)(4)). Defendant belonged to a gang but was alone when he shot into two unoccupied houses, and generalized expert testimony about the reputational benefits of crime did not support a conclusion that the shootings were intended to benefit the gang.

Aug. 24, 2022 – Review Grant – In re N.R. (S274943, B312001)

“This case presents the following issues: (1) What is the definition of ‘substance abuse’ for purposes of declaring a child a dependent under Welfare and Institutions Code section 300, subdivision (b)(1)? (2) Where a child is under the age of six, does a finding of parental substance abuse alone provide sufficient evidence to warrant juvenile court jurisdiction?”

Aug. 23, 2022 – In re Dominick D. (4th Dist., Div. 2, E078370)

In an appeal from dispositional findings and orders, the Court of Appeal finds the juvenile court failed to ensure the Department discharged its duty of initial inquiry into possible Indian ancestry under WIC 224.2(b). The duty of initial inquiry includes asking extended family members, and others who have an interest in the child, whether the child is or may be an Indian child.

Aug. 23, 2022 – In re J.R. (2nd Dist., Div. 1, B314532)

The Court of Appeal rejects the Department’s efforts to dismiss father’s appeal, finding that father’s notice of appeal was timely filed and that, because their interests were intertwined, father had standing to argue that mother was not provided with proper notice of the proceedings. Using a de novo standard of review, the court holds that the Department prejudicially failed to afford mother with constitutionally adequate notice of the proceedings and reverses the order terminating both parents’ rights.

Aug. 22, 2022 – In re J.R. (1st Dist., Div. 2, A164334)

The Court of Appeal affirms the order terminating parental rights. The court states that when a juvenile court applies the wrong legal standard in rejecting the beneficial relationship exception, reversal is not warranted if the parent did not introduce evidence that would permit a finding in their favor under the correct legal standard. In that situation, any reliance by the juvenile court on improper factors is harmless.

Aug. 22, 2022 – People v. Nieber (4th Dist., Div. 1, D079208)

The Court of Appeal holds that a finding at the preliminary hearing that there was insufficient evidence that appellant was a major participant does not constitute a “prior finding by a court or jury that the petitioner did not act with reckless indifference to human life or was not a major participant in the felony” within the meaning of PC 1172.6(d)(2). The court concludes that because the preliminary hearing finding was not the type of finding that automatically results in vacating the murder conviction under PC 1172.6(d)(2), the trial court did not err by holding a hearing under subdivision (d)(3).

Aug. 22, 2022 – People v. Hendrix (Supreme Ct., S265668)

At appellant’s jury trial for burglary, the court provided a mistake-of-fact instruction that erroneously required the mistake in question to be reasonable. Although the Supreme Court granted review to determine the correct standard of prejudice for such an error, the court declines to resolve this dispute, concluding that the erroneous instruction was prejudicial even under the less stringent Watson standard. The court observes that the Court of Appeal improperly “leaned heavily on its own view of the facts, rather than focusing its analysis on the error’s likely effect on the jury’s consideration of those facts.”

Aug. 22, 2022 – In re Milton (Supreme Ct., S259954)

In a 5-2 decision, the Supreme Court holds that People v. Gallardo (2017) 4 Cal.5th 120, which held that a defendant has a right to a jury trial on the nature of a prior conviction used to enhance a sentence, does not apply retroactively to final decisions because Gallardo articulated a new procedural rule. Though here the trial judge improperly made the factual finding that defendant’s out-of-state conviction involved a firearm and thus qualified as a strike, defendant is not entitled to a resentencing hearing. Justices Groban and Liu dissent.

Aug. 18, 2022 – People v. Salgado (4th Dist., Div. 3, G060656)

In an appeal from a resentencing pursuant to a CDCR recommendation for recall and resentencing under former PC 1170(d)(1) (now PC 1172.1), the Court of Appeal holds that once appellant was resentenced, his criminal judgment was no longer final, and he was thus entitled to the retroactive benefit of AB 333. The court reverses appellant’s conviction for active participation in a criminal street gang (PC 186.22(a)), vacates the jury’s true findings on the gang enhancements (PC 186.22(b)(1)), and remands to afford the prosecution the opportunity for retrial on the gang offense and enhancements.

Aug. 17, 2022 – People v. Guillory (1st Dist., Div. 5, A161952)

The Court of Appeal finds that a not-true finding on one of several special-circumstance allegations (murder during the course of a kidnapping) did not entitle appellant to automatic vacatur of her murder conviction under PC 1172.6(d) (former PC 1170.95(d)), where the rejected special-circumstance allegation was not the only viable ground for a murder conviction. The court also holds that appellant is not entitled to retroactive application of Prop 57 because appellant’s case was final when the proposition took effect and an order to show cause under PC 1172.6 does not vacate a sentence.

Aug. 17, 2022 – People v. Orosco (4th Dist., Div. 1, D079723)

The Court of Appeal rejects appellant’s claim that there was insufficient evidence to support his conviction for assault on a peace officer based on a lack of substantial evidence that the victim, a deputy sheriff performing custodial duties, was working as a peace officer. The court finds, however, that the trial court violated appellant’s Sixth Amendment rights by denying his Faretta request for self-representation on the ground that he was “unable to sufficiently represent himself,” where there was no substantial evidence that appellant was mentally incompetent under People v. Johnson (2012) 53 Cal.4th 519.

Aug. 17, 2022 – In re Raul V. (4th Dist., Div. 2, E077964)

The Court of Appeal finds that once the juvenile court determines the bypass provisions of WIC 361.5(b)(5) apply, the burden shifts to the parent to show under WIC 361.5(c)(3) that reunification services are likely to prevent reabuse. The court clarifies that, on review, the challenge is not to the sufficiency of the evidence but rather whether the evidence compels a finding in favor of the appellant as a matter of law.

Aug. 15, 2022 – Guardianship of Saul H. (Supreme Ct., S271265)

The Supreme Court reverses the Court of Appeal’s decision affirming the probate court’s denial of the petition for special immigrant juvenile (SIJ) status. The court provides guidance on the statutory requirements governing issuance of SIJ predicate findings, including the burden of proof and the factors important to the nonviability-of-reunification determination and the best-interest determination.

Aug. 12, 2022 – In re S.H. (1st Dist., Div. 1, A163623)

In an appeal from a dispositional order, mother argued the Department conducted an inadequate investigation into the minor’s possible Native American ancestry. The Department conceded the error. The Court of Appeal accepts the concession but affirms the dispositional order on the ground that there is no reason to believe that the duty of inquiry, which is a continuing one, will not be satisfied as the proceedings are ongoing.

Aug. 11, 2022 – People v. Morelos (Supreme Ct., S051968)

The Supreme Court affirms appellant’s death sentence following a bench trial, concluding that the trial court did not err by allowing appellant to represent himself or by denying advisory counsel; that appellant validly waived jury for both guilt and penalty phases; and that the trial did not constitute a “slow plea” in violation of PC 1018, despite the fact that appellant did not cross examine most witnesses, presented no mitigation, and testified that he should be sentenced to death. Justice Liu dissents, writing that the record fails to affirmatively show that appellant’s jury waiver was voluntary and intelligent.

Aug. 10, 2022 – Review Grant – People v. Lynch (S274942, C094174)

“This case presents the following issue: What prejudice standard applies on appeal when determining whether a case should be remanded for resentencing in light of newly-enacted Senate Bill No. 567 (Stats. 2021, ch. 731)?”

Aug. 8, 2022 – Needham v. Superior Court (4th Dist., Div. 3, G060670)

The Court of Appeal issues a writ of mandate directing the superior court to vacate its order denying defendant’s motion to exclude the testimony of the prosecution’s privately retained expert in SVP Act civil commitment proceedings. The court holds that given the “obvious dangers to essential liberty interests,” courts must adhere to the SVP Act’s detailed process that requires multiple evaluations by independent experts. The dissent asserts that since the defense has a right to retain its own expert, the prosecution also has such a right.

Aug. 8, 2022 – People v. Strong (Supreme Ct., S266606)

The Supreme Court holds that a felony-murder special-circumstance finding under PC 190.2(d) made before Banks and Clark does not preclude a prima facie showing under PC 1172.6 (former PC 1170.95). The court explains that collateral estoppel is inapplicable because “Banks and Clark represent the sort of significant change that has traditionally been thought to warrant reexamination of an earlier-litigated issue.” The court clarifies that its holding applies even where the trial evidence would have been sufficient to support the finding under Banks and Clark.

Aug. 5, 2022 – People v. Vang (3rd Dist., C090365)

Where defendant was convicted of special-circumstance felony murder based on the victim dying after jumping from defendant’s car to escape a kidnapping, the Court of Appeal reverses the conviction and vacates the special-circumstance finding. The court holds that to qualify as an “actual killer” for felony-murder liability under PC 189(e) and PC 190.2, the defendant must have been “the actual perpetrator of the killing, i.e., the person … who personally committed the homicidal act.” The jury instructions here, however, required only a finding that defendant proximately caused the victim’s death.

Aug. 5, 2022 – People v. Lopez (5th Dist., F076295)

The Court of Appeal holds that AB 333’s amendments to PC 186.22 also apply to PC 182.5 (gang conspiracy statute) such that defendant’s conviction for conspiracy must be reversed. Though PC 182.5 was enacted by Prop 21, AB 333 does not unconstitutionally amend the proposition because Prop 21 incorporated PC 186.22’s pre-existing definitions of “criminal street gang” and “pattern of criminal gang activity” without change. Prop 21 also did not “freeze” the definition of these terms.

Aug. 1, 2022 – People v. Henson (Supreme Ct., S252702)

Defendant was held to answer on two felony complaints within a 15-day period, and the prosecution filed a single information charging the offenses from both complaints, thereby effectively consolidating the two cases without the filing of a motion to consolidate. In a 4-3 decision, the Supreme Court upholds this practice as a proper instance of joinder under PC 954. Justice Kruger, joined by Justices Groban and Liu, writes in dissent that, absent a consolidation order, an information “may charge only those offenses contained in a single commitment order or shown by the evidence at a single preliminary hearing.”

Jul. 29, 2022 – People v. Hadim (Los Angeles County App. Div., 0CJ0030903)

PC 851.91 authorizes the sealing of a person’s arrest record and related court records where no conviction resulted and where charges may not be refiled. The appellate division holds that the statute is inapplicable to defendants who were never arrested in connection with the offenses but rather were sent a notice to appear. The court does not address whether a person who is temporarily detained and then cite-released by an officer has been “arrested” for purposes of the statute. The court finds no equal protection violation.

Jul. 29, 2022 – In re Ezequiel G. (2nd Dist., Div. 3, B314432)

The Court finds that automatic reversal for ICWA-inquiry error is not compelled by statute, harms the interests of dependent children, and is not in the best interests of Indian communities. Instead, the court holds that claims of ICWA-inquiry error should be reviewed under a hybrid substantial evidence/abuse of discretion standard, and that reversal is required only upon a showing that the error was prejudicial. The dissent urges the Supreme Court to grant review due to the multiple approaches taken by the courts of appeal in evaluating whether ICWA-inquiry error is prejudicial.

Jul. 28, 2022 – People v. Superior Court (Ortiz) (4th Dist., Div. 2, E077594)

The Court of Appeal issues a writ of mandate directing the superior court to vacate its order granting pretrial diversion under PC 1001.95 on a misdemeanor DUI charge. The court concludes that VC 23640 – which bars pretrial diversion for DUI charges – was not partially and impliedly repealed by the enactment of PC 1001.95. The court reasons that VC 23640 operates in harmony with PC 1001.95 to bar diversion for misdemeanor DUIs. A dissenting opinion asserts that the statutes cannot be harmonized and that the Legislature intended PC 1001.95 to authorize diversion for misdemeanor DUIs.

Jul. 28, 2022 – In re Jason V. (1st Dist., Div. 2, A163366)

Appellant was committed to DJJ prior to July 2021, but the juvenile court erroneously ordered an impermissible maximum period of confinement. In July 2021, the court entered a nunc pro tunc order correcting the error. Although the error was not a “recording error,” the Court of Appeal concludes that “in the unique circumstances presented here,” the error was clerical rather than legal and the nunc pro tunc correction was therefore permissible. The court reasons that the correction did not involve an exercise of discretion but rather “allowed the court to effectuate its discretionary decision.”

Jul. 28, 2022 – People v. Ng (Supreme Ct., S080276)

In an automatic appeal from a death sentence, the Supreme Court affirms the judgment in its entirety. The court rejects challenges related to venue, the denial of Marsden motions, the revocation of appellant’s pro per status based on a finding that he was trying to delay the trial, the appointment of the same counsel as standby and advisory counsel, the admission and exclusion of evidence, the failure to instruct on unanimity, judicial bias, and the denial of a mistrial after a prosecution investigator spoke to a juror about matters unrelated to the case.

Jul. 28, 2022 – People v. Peyton (2nd Dist., Div. 2, B314992)

The Court of Appeal joins People v. Smith (2022) 75 Cal.App.5th 332 in holding that an SVP may not petition for unconditional discharge unless either (1) the hospital’s annual evaluation finds they are no longer an SVP; or (2) they obtain conditional release for at least one year. The court holds that the SVP Act authorizes a petition for unconditional discharge only in these two scenarios, and that this construction of the Act does not violate due process.

Jul. 26, 2022 – People v. Saibu (4th Dist., Div. 1, D078391)

In a People’s appeal from the granting of a PC 1170.95/1172.6 petition following a (d)(3) hearing, the Court of Appeal holds the order is appealable and affirms the trial court’s finding that the People failed to establish that defendant acted with reckless indifference under PC 189(e)(3). As to defendant’s attempted murder conviction based on the same robbery (which the trial court did not rule on), the Court of Appeal declines to extend the trial court’s finding on the murder count and instead remands with instructions to hold a further (d)(3) hearing on the attempted murder count.

Jul. 26, 2022 – People v. Flowers (2nd Dist., Div. 6, B312522)

The Court of Appeal declines to address whether SB 567’s amendments to PC 1170(b) apply retroactively to appellant’s upper-term sentence and instead affirms the judgment on the ground that remand “would be an idle act.” The court explains, “Given that several factors relied upon by the trial court, i.e., appellant’s criminal history, prior prison terms, and prior poor performance on probation, are supported by the certified records of convictions and that the trial court found no mitigating circumstances, we conclude the trial court’s original sentencing decisions should be affirmed.”

Jul. 25, 2022 – People v. McCune (1st Dist., Div. 5, A163579)

Agreeing with People v. Zuniga (2022) 79 Cal.App.5th 870, the Court of Appeal holds the trial court retained jurisdiction to set the amount of victim restitution even after defendant’s probationary term expired as a result of AB 1950.

Jul. 22, 2022 – People v. Mitchell (2nd Dist., Div. 8, B308780)

The Court of Appeal follows People v. Anderson (2022) 78 Cal.App.5th 81 and People v. Myles (2021) 69 Cal.App.5th 688 in holding that a defendant’s parole hearing transcript may be considered as “new or additional evidence” at an evidentiary hearing under PC 1172.6(d)(3) (formerly PC 1170.95(d)(3)). The court also finds substantial evidence to support the trial court’s determination that defendant was a major participant who acted with reckless indifference to human life under PC 189(e). The dissent disagrees on both points.

Jul. 21, 2022 – J.J. v. Superior Court (3rd Dist., C095308)

The Court of Appeal grants mother’s writ petition, concluding that the order bypassing and denying reunification services was not supported by sufficient evidence where mother knew father had a problem with alcohol, bought father a bottle of alcohol, and left the minor – who was subsequently seriously harmed by father – in his care. The court concludes the evidence was insufficient to establish that mother knew or should have known father was abusing or likely to abuse the minor. Thus, while removal was well supported, bypass was not.

Jul. 21, 2022 – In re N.L. (4th Dist., Div. 1, D079759)

The Court of Appeal finds sufficient evidence to support the juvenile court’s finding that appellant committed felony arson of property (PC 451(d)) by “willfully and maliciously” setting fire to a garbage can inside a grocery store bathroom. The court also holds that SB 383’s expansion of eligibility for informal supervision applies retroactively to appellant’s case, and conditionally reverses the adjudication and disposition orders with instructions to consider informal supervision instead of wardship.

Jul. 21, 2022 – People v. Mateale (Supreme Ct., S138052)

In an automatic appeal from a death sentence, the Supreme Court holds the trial court erred in the penalty phase by excluding eyewitness testimony, offered as lingering doubt evidence, indicating the shooter’s physical appearance was distinct from the defendant’s. However, the court finds the error was harmless. Justice Groban observes in concurrence that a habeas proceeding “would be the appropriate forum to explore” whether trial counsel provided IAC by failing to secure the eyewitness’s presence for the guilt phase. Justices Liu and Kruger dissent, finding the penalty-phase error was prejudicial.

Jul. 21, 2022 – People v. Beasley (4th Dist., Div. 3, G060302)

After defendant pled to a robbery he committed while on parole from a 25-to-life sentence, the trial court dismissed all three of defendant’s prior strikes, his three prior serious felony convictions, and the weapon-use enhancement, and sentenced defendant to the low term of 2 years. The court of appeal agrees with the People that this was an abuse of discretion, finding that the trial court’s reasons for dismissing all three of the prior strikes “do not withstand scrutiny.” The court remands with instructions to allow defendant to withdraw his plea.

Jul. 20, 2022 – People v. Dunn (5th Dist., F083390)

Disagreeing with People v. Flores (2022) 75 Cal.App.5th 495 and People v. Lopez (2022) 78 Cal.App.5th 459, the Court of Appeal sets out a new prejudice test for SB 567 error. The court first determines (a) whether the record fails to show beyond a reasonable doubt that the jury would have found one aggravating circumstance; and (b) whether there is a reasonable probability the jury would not have found any remaining aggravating circumstances. If the answer to either question is yes, the court then determines whether there is a reasonable probability the trial court would not have imposed the upper term.

Jul. 19, 2022 – In re J.W. (2nd Dist., Div. 8, B313447)

The Court of Appeal concludes the juvenile court erred in determining that ICWA did not apply despite the fact that DCFS was in contact with mother’s extended family members yet failed to ask them about their Indian ancestry, in violation of WIC 224.2. However, the court concludes the error was harmless because J.W. was placed for adoption with her maternal grandmother and because nothing in the record suggested that J.W. had Indian heritage. The dissenting opinion would have found prejudice.

Jul. 19, 2022 – In re G.A. (3rd Dist., C094857)

The Court of Appeal concludes the juvenile court failed to make ICWA findings, including as to whether the Agency had satisfied its obligation to inquire, but holds that the failure was harmless. The court affirms the termination of parental rights and remands to the juvenile court for the sole purpose of entering an ICWA finding on the record.

Jul. 18, 2022 – In re Rylei S. (2nd Dist., Div. 7, B316877)

The Court of Appeal concludes the Department “completely failed to satisfy” its duty pursuant to WIC 224.2 to “make further inquiry regarding the possible Indian status of the child” despite the fact the Department had reason to believe an Indian child could be involved. The juvenile court erred by failing to ensure the Department had satisfied its duties prior to finding ICWA did not apply. The appellate court remands for full compliance with the inquiry and notice provisions of ICWA and related California law.

Jul. 15, 2022 – People v. M.H. (4th Dist., Div. 2, B316877)

The Court of Appeal concludes the trial court was not required under the MDO Act to advise defendant of her right to call, confront, and subpoena witnesses. Even if the trial court erred in failing to advise defendant that she had a right to call, confront, and subpoena witnesses during the MDO proceedings, any error was harmless.

Jul. 15, 2022 – People v. Lee (2nd Dist., Div. 4, B300756)

The Court of Appeal holds that the amendments to PC 186.22 enacted by AB 333 apply retroactively to nonfinal cases and vacates the jury’s true findings on a gang enhancement, gang-related firearm enhancements, and a gang-murder special circumstance (PC 190.2(a)(22)). In so holding, the court rejects the People’s argument that by amending the gang-murder special circumstance, AB 333 unconstitutionally amended a provision of Prop 21 without the requisite two-thirds legislative vote.

Jul. 14, 2022 – People v. Shelly (3rd Dist., C094048)

The Court of Appeal concludes AB 1950 applies retroactively and entitles appellant to have her probation reduced to 3 years, where appellant pled no contest to embezzlement and the property taken exceeded $25,000. The court also concludes the People are not entitled to withdraw from the plea agreement. The People were not deprived of the benefit of the bargain, and allowing withdrawal would undermine the Legislature’s intent in enacting AB 1950. Note: This issue is currently pending in the California Supreme Court in People v. Prudholme (S271057).

Jul. 14, 2022 – In re Mazur (4th Dist., Div. 1, D079597)

In a habeas proceeding, the Court of Appeal strikes an on-bail enhancement under PC 12022.1. The court agrees with defendant that PC 12022.1 unambiguously requires an arrest for the secondary offense. The court concludes that since defendant was not arrested for the secondary offense, the on-bail enhancement was improperly imposed, and counsel was ineffective for failing to challenge its imposition.

Jul. 14, 2022 – People v. Singh (3rd Dist., C093084)

The Court of Appeal reverses the denial of defendant’s motion to vacate his conviction pursuant to PC 1473.7 where the denial was based on the fact that defendant was convicted following a jury trial. However, while the appeal was pending, AB 1259 amended PC 1473.7 to clarify that the statute applies to convictions resulting from trials as well as guilty pleas. Because the trial court did not address the merits of defendant’s motion, remand for further proceedings is appropriate.

Jul. 13, 2022 – People v. Clark (4th Dist., Div. 2, E075532)

Disagreeing with People v. Delgado (2022) 74 Cal.App.5th 1067 and People v. Lopez (2021) 73 Cal.App.5th 327, the Court of Appeal holds that, for the purposes of a gang enhancement under PC 186.22 as amended by AB 333, “a pattern of criminal gang activity may be established by (1) two gang members who separately committed crimes on different occasions, or (2) two gang members who committed a crime together on a single occasion.” The court finds that, under this interpretation of “pattern of criminal gang activity,” any error was harmless beyond a reasonable doubt.

Jul. 13, 2022 – People v. Torres (2nd Dist., Div. 6, B318399)

The Court of Appeal agrees with the parties that a defendant placed on probation for reckless evading (VC 2800.2(a)) is not required to serve any amount of custody time as a condition of probation. The court, however, finds that remand would be an idle act because the trial court indicated that it would have imposed 180 days of custody time as a condition of probation even absent its mistaken belief that it was required to do so.

Jul. 12, 2022 – In re Ernesto L. (1st Dist., Div. 1, A162151)

Disagreeing with In re A.R. (2018) 24 Cal.App.5th 1076, the Court of Appeal holds that when a minor is committed to DJJ, the juvenile court must apply the minor’s precommitment credits against the “actual maximum custodial term” set under WIC 731(b), not the “theoretical maximum exposure term” set under WIC 726(d)(1).

Jul. 12, 2022 – In re M.M. (2nd Dist., Div. 8, B315997)

Appellant argued that the order terminating parental rights should be reversed because the adoption assessment was inadequate, the juvenile court abused its discretion in denying a bonding study, and the Department conducted an inadequate initial inquiry under the ICWA. The Court of Appeal disagrees and affirms the order terminating parental rights.

Jul. 12, 2022 – People v. Harden (4th Dist., Div. 1, D078191)

In an opinion issued after the granting of defendant’s petition for rehearing, the Court of Appeal reaffirms the trial court’s prima facie denial of appellant’s PC 1170.95 (now PC 1172.6) petition. The court finds that the jury instructions and verdicts from appellant’s trial “conclusively establish – with no factfinding, weighing of evidence, or credibility determinations – that [appellant] was convicted as the actual killer,” making her ineligible for relief as a matter of law.

Jul. 11, 2022 – People v. Zabelle (3rd Dist., C093173)

The Court of Appeal holds that defendant’s statements to police were voluntary and not induced by a promise of leniency where officers said that early cooperation could be beneficial in an unspecified way and also that it could work in the defendant’s favor to be honest and admit involvement. As to defendant’s request for resentencing based on SB 567, the court applies both the Chapman and Watson standards to assess prejudice, finding the error harmless under Chapman but requiring reversal as a state law error.

Jul. 8, 2022 – People v. Gerson (4th Dist., Div. 1, D076297)

Appellate counsel sought to recall the remittitur based on his own ineffective assistance in failing to file a supplemental brief or petition for rehearing based on AB 124, which made the low-term presumptive in certain circumstances. The Court of Appeal holds that a motion to recall the remittitur is an appropriate remedy. The court grants the motion, vacates the sentence, and remands for resentencing. The court also concludes appellant, who was on bail subject to electronic monitoring on home detention, is entitled to preconviction custody and conduct credits on equal protection grounds.

Jul. 7, 2022 – People v. Wandrey (1st Dist., Div. 2, A161691)

Pursuant to PC 667.6, the trial court imposed consecutive upper terms on each of appellant’s 84 convictions for sexual assault (PC 220(a)(2)). The Court of Appeal rejects the argument that the convictions were ineligible for consecutive sentencing under PC 667.6. The court also holds that the trial court’s determination that the offenses were committed “on separate occasions” (PC 667.6(d)) did not violate defendant’s jury-trial right. Finally, the court finds that the imposition of upper terms without jury findings on the aggravating circumstances was prejudicial and requires remand under SB 567.

Jul. 6, 2022 – People v. Manzanilla (2nd Dist., Div. 8, B313557)

The Court of Appeal reverses on three grounds the denial of a PC 1473.7 motion to vacate a conviction: (1) counsel failed to advise that the plea would trigger mandatory deportation; (2) counsel failed to seek an immigration-safe plea, which could have been achieved by a one-day reduction of the sentence; and (3) appellant did not understand he faced mandatory deportation when he entered his plea. Because the trial court made its decision entirely on written documents, the court applies the independent review standard. The court remands with instructions to grant the motion.

Jul. 6, 2022 – People v. Ayon (6th Dist., H047360)

After the police saw appellant commit two minor traffic violations, they stopped him in his car and detained him until a narcotics dog arrived. After the dog alerted to the presence of drugs, the police searched the car, wherein they found drugs, currency, and a scale. The Court of Appeal holds the trial court erred in denying appellant’s motion to suppress because the police unlawfully prolonged the traffic stop in violation of the Fourth Amendment.

Jul. 1, 2022 – In re M.G. (2nd Dist., Div. 8, B313843)

The Court of Appeal reverses the order terminating parental rights, finding the juvenile court relied on improper factors such as parental role and comparing caregivers in reaching its decision. The court notes that under the second element of the beneficial parental relationship exception, the child’s and parent’s particular abilities in expressing and establishing bonds should also be considered.

Jun. 30, 2022 – People v. Caparaz (1st Dist., Div. 2, A158473)

The Court of Appeal holds that the trial court abused its discretion when it excluded expert testimony on defendant’s particular susceptibility to making a false confession and the expert’s psychological assessment of defendant, but finds the error harmless.

Jun. 30, 2022 – People v. Deleoz (6th Dist., H047775)

The Court of Appeal finds that certain redacted portions of two prosecution memos relating to the credibility of the testifying medical examiner were impeachment material that should have been disclosed under Brady and PC 1054.1. The court concludes, however, that reversal is not required because the jury did not accept the expert’s conclusions.

Jun. 30, 2022 – People v. Diggs (1st Dist., Div. 4, A162679)

The Court of Appeal holds defendant’s continued commitment as NGI justified given current diagnoses of anti-social personality disorder and substance abuse disorder, and failure to engage in drug treatment. The court finds no equal protection violation where a personality disorder may be the basis for a continued commitment as NGI but not as an offender with a mental health disorder (OMHD, formerly MDO) because the groups are similarly treated in that the focus of the inquiry is on the individual’s danger to others as a result of a mental disorder.

Jun. 29, 2022 – In re M.B. (2nd Dist., Div. 7, B312789)

In an appeal from the termination of parental rights, the Court finds the Department failed to conduct an adequate inquiry into possible Indian ancestry and the juvenile court failed to ensure the ICWA investigation was adequate. The Court rejects the Department’s efforts to moot mother’s appeal by conducting further interviews of maternal relatives while the appeal was pending.

Jun. 30, 2022 – In re E.V. (4th Dist., Div. 3, G061025)

The Court of Appeal finds that the juvenile court and the Department failed to adequately inquire into the child’s Indian ancestry as required by ICWA. The court reiterates that the appellate court is not the appropriate venue for determining if the Department’s postjudgment investigation was adequate. The court concludes that conditional reversal is required to ensure the tribes’ interests are considered and protected.

Jun. 30, 2022 – In re C.S. (2nd Dist., Div. 7, B312003)

The Court of Appeal affirms the juvenile court’s order terminating dependency jurisdiction. The court also finds that the trial court’s order for monitored visitation with mother in a therapeutic setting, with the minor’s therapist to determine when those visits should begin, was not an unlawful delegation of judicial authority.

Jun. 29, 2022 – People v. Rojas (5th Dist., F080361)

In a 2-1 decision, the Court of Appeal concludes that because AB 333 “takes away” from the scope of conduct that Prop 21 made punishable under PC 190.2(a)(22), it impermissibly amends the proposition. The court does not void AB 333 in its entirety, but rather holds that AB 333 does not alter the scope or effect of PC 190.2(a)(22).

Jun. 28, 2022 – People v. Lima (2nd Dist., Div. 5, B293030)

The Court of Appeal holds that the prosecutor committed misconduct when she referred to prospective jurors’ comments in her rebuttal argument to bolster the prosecution’s factual theories and inflame the jury’s passions and biases. The court concludes, however, that the misconduct was harmless.

Jun. 28, 2022 – People v. Salazar (2nd. Dist., Div. 6, B309803)

The Court of Appeal holds that remand is not required to apply the new PC 1170(b)(6), which presumes imposition of the low term where the defendant’s experience of trauma was a contributing factor to the offense, because the record clearly indicates the trial court would not have imposed a more lenient sentence. The dissent would have remanded to allow the trial court to exercise its discretion.

Jun. 27, 2022 – People v. Poore (Supreme Ct., S104665)

In an automatic appeal in a death penalty case, the Supreme Court affirms the judgment and rejects claims concerning physical restraints, lack of a penalty phase defense, and jury selection, though the court criticizes the “minimal” questioning of a prospective juror. Justice Liu’s concurring opinion suggests that failure to mount a penalty phase defense may constitute ineffective assistance of counsel even where the defendant does not wish to present mitigating evidence.

Jun. 27, 2022 – People v. Pineda (Supreme Ct., S150509)

In an automatic appeal in a death penalty case, the Supreme Court affirms the judgment in its entirety and rejects claims of erroneous admission of prior acts evidence and improper excusal of a prospective juror. Justice Liu’s concurring opinion discusses possible constitutional challenges to the lack of a unanimity requirement for aggravating factors in capital cases.

Jun. 23, 2022 – In re Cuenca (1st Dist., Div. 4, A164317)

Appellant, who was sentenced to county jail pursuant to PC 1170(h), filed a habeas petition arguing that Napa County’s failure to grant county jail inmates the same opportunities that state prison inmates have to earn rehabilitation program credits violated his constitutional right to equal protection. The Court of Appeal rejects this claim, finding that state prison inmates and county jail inmates are not similarly situated for purposes of PC 1170(h) and that, in any event, the county has a rational basis for not offering program credits.

Jun. 23, 2022 – People v. Whitmore (4th Dist., Div. 3, G059779)

In an opinion issued after the granting of defendant’s petition for rehearing seeking retroactive application of SB 567, the Court of Appeal restates its prior rulings (see vacated opn. issued Apr. 29, 2022) and remands for resentencing under SB 567. The court rejects the People’s argument that defendant forfeited the issue by not raising it earlier, noting that SB 567 did not take effect until two months after the case was fully briefed. “True, [defendant] might have sought leave to file a supplemental brief on the issue, but given the timing, we decline to find a forfeiture.”

Jun. 23, 2022 – People v. Romero (5th Dist., F080671)

The Court of Appeal holds that defendant’s no contest plea to first-degree murder and admission that he acted intentionally, deliberately, and with premeditation establishes he is ineligible for resentencing pursuant to PC 1170.95.

Jun. 22, 2022 – K.R. v. Superior Court (1st Dist., Div. 3, A164821)

Persons subject to LPS conservatorships must be personally advised of their trial rights. If no trial demand has been made, the court must hold a “hearing” on the conservatorship petition, and the proposed conservatee then has five days to demand a trial. WIC 5350 draws a distinction between a “hearing” and a “trial” and offers no option for a bench trial absent a demand by the proposed conservatee.

Jun. 22, 2022 – People v. Montano (5th Dist., F079222)

The Court of Appeal holds that AB 333’s amendments to PC 186.22 apply retroactively and require reversal of defendants’ convictions for unlawful participation in a criminal street gang (PC 186.22(a)) and of their gang enhancements under PC 186.22(b) and firearm enhancements under PC 12022.53(e)(1). The court further holds that PC 1109 (AB 333’s bifurcation provision) also applies retroactively, but that the statute does not require bifurcation of a gang murder special circumstance under PC 190.2(a)(22).

Jun. 21, 2022 – People v. Basler (4th Dist., Div. 1, D079033)

The Court of Appeal reverses the denial of defendant’s PC 1170.95 petition where defendant was not personally present at the evidentiary hearing and had not waived his presence, and where the trial court did not consider defendant’s eligibility for resentencing on his attempted murder conviction. The court also holds that, at an evidentiary hearing, the trial court acts as an independent factfinder and is not restricted to the jury’s findings from the original trial.

Jun. 17, 2022 – People v. Johnson (1st Dist., Div. 3, A160025)

The Court of Appeal finds the evidence insufficient to support a conviction for dissuading a witness by threat (PC 136(c)(1)) where the threat of violence involved self-harm, which the court holds does not constitute a threat to a “third person.”

Jun. 16, 2022 – People v. Richardson (4th Dist., Div. 2, E076087)

Appellant was the getaway driver for a robbery of a market during which one of his coparticipants shot and killed the market-owner. A citizen followed the coparticipants as they ran back to the car, and appellant yelled, “Shoot him.” A coparticipant fired a shot, but the citizen was not hit. The Court of Appeal finds sufficient evidence to support the trial court’s finding at a PC 1170.95(d)(3) hearing that appellant was a major participant under PC 189(e). The court reasons appellant’s “shoot him” statement showed that he was aware his coparticipants were armed and that he had a role in directing the robbery.

Jun. 16, 2022 – In re Q.M. (2nd Dist., Div. 3, B313171)

The Court of Appeal concludes that substantial evidence supported the juvenile court’s findings that the Department made an adequate inquiry and that the ICWA did not apply. Mother denied any Indian ancestry and did not provide the Department with any names and contact information for extended family members, constraining the Department’s ability to conduct an exhaustive inquiry. Father’s inconsistent statements regarding possible Indian ancestry did not create a “reason to believe” the children were Indian children, and even if a duty was triggered, substantial evidence indicated the duty was satisfied.

Jun. 15, 2022 – Statement Dissenting From Order Denying Review – In re Flores (S273785, C089974)

The CDCR’s regulations for early parole consideration under Prop 57 provide for only a “paper review” process, with no right to an in-person hearing. The trial court granted a habeas petition challenging this practice, and the Court of Appeal reversed. In a statement dissenting from the order denying review, Justice Liu explains why he is “doubtful” the paper review process satisfies due process and encourages the Legislature to “consider ways to increase the accuracy and reliability of Prop 57 parole determinations.”

Jun. 15, 2022 – Statement Concurring With Order Denying Review – People v. Flores (S274232, A164257)

In a case where the Court of Appeal held that SB 567’s amendments to PC 1170(b) applied retroactively, but that imposition of the upper term was harmless beyond a reasonable doubt, Justice Liu issues a statement concurring with the order denying depublication and review. Justice Liu notes the split between People v. Flores (2022) 75 Cal.App.5th 495 and People v. Lopez (2022) 78 Cal.App.5th 459 over the proper harmlessness test in this context and suggests granting review of the issue “[i]n an appropriate case.”

Jun. 15, 2022 – People v. Garcia (2nd Dist., Div. 6, B310824)

The Court of Appeal affirms the trial court’s denial of defendant’s motion to withdraw his no-contest plea under PC 1473.7, where the plea form contained a warning about immigration consequences, trial counsel testified that he advised defendant as to immigration consequences, and defendant acknowledged knowing that he might be deported based on his plea.

Jun. 14, 2022 – In re A.B. (6th Dist., H049676)

The Court of Appeal affirms the juvenile court’s order at the twelve-month post-permanency review hearing denying father’s request for a contested hearing on his request for visitation. The court holds that a parent whose child is in the permanent plan of legal guardianship does not have an unqualified statutory right or unfettered due process right to a contested post-permanency review hearing under WIC 366.3. Accordingly, the juvenile court did not err in requiring father to make an offer of proof in support of his request for a contested hearing.

Jun. 14, 2022 – In re Dezi C. (2nd Dist., Div. 2, B317935)

The Court of Appeal finds the Agency did not properly discharge its statutory duty under the ICWA to inquire of extended family members regarding a child’s possible American Indian heritage but finds the error harmless. The court creates a “fourth rule” for assessing harmlessness: An Agency’s failure to discharge its statutory duty of initial inquiry is harmless unless the record, which includes any further proffer the appealing party makes on appeal, contains information suggesting a reason to believe that the children may be Indian children.

Jun. 14, 2022 – People v. Watts (2nd Dist., Div. 8, B312913)

The Court of Appeal holds that the trial court erred when it required the prosecution’s consent for mental health diversion under PC 1001.36; however, the error was harmless because the trial court independently concluded defendant was not eligible for diversion. The court also holds that defendant did not have a due process right to present live expert testimony at the diversion hearing where the expert submitted a written report.

Jun. 14, 2022 – People v. Arreguin (1st Dist., Div. 3, A162718)

In 2016, defendant pled guilty to a violent felony in one case and to a non-violent felony in another, and the trial court suspended an aggregated sentence and placed defendant on five-years’ probation. In 2021, based on misconduct occurring after AB 1950 took effect, the trial court revoked probation and imposed the aggregated sentence. The Court of Appeal reverses, holding that the trial court retained jurisdiction to revoke probation for the violent felony (which was exempt from AB 1950’s two-year limitation on probation) but lacked jurisdiction to do so for the non-violent felony (which was not exempt).

Jun. 14, 2022 – People v. Zuniga (4th Dist., Div. 1, D079767)

The Court of Appeal concludes the trial court did not exceed its jurisdiction by determining the amount of victim restitution after appellant’s probation had expired as a result of AB 1950. The court reasons the trial court did not “revoke, modify, or change” the original probation order within the meaning of PC 1203.3(a) when it set the amount of victim restitution after the expiration of probation.

Jun. 14, 2022 – People v. Bunas (4th Dist., Div. 1, D078819)

In an appeal from a prior remand for consideration of mental health diversion (PC 1001.36), the Court of Appeal affirms the trial court’s denial of defendant’s request for diversion. The court holds that even where the defendant’s offense is not categorically ineligible for diversion, a trial court may still rely on the circumstances of the offense in denying diversion. The court additionally holds that a trial court may deny diversion without holding an evidentiary hearing where the defendant fails to make a prima facie showing in support of diversion.

Jun. 13, 2022 – People v. Qualkinbush (4th Dist., Div. 1, D078778)

The Court of Appeal holds the trial court abused its discretion by relying on general objectives of sentencing and failing to consider the primary purposes of PC 1001.36 in denying appellant’s motion for mental health diversion. The court conditionally vacates appellant’s guilty plea and remands with instructions to reconsider appellant’s motion, bearing in mind the statutory principles and purposes of PC 1001.36.

Jun. 13, 2022 – People v. Smith (1st Dist., Div. 5, A162551)

The Court of Appeal finds that a condition requiring defendant to “participate in any treatment/therapy/counseling program, including residential, as directed by the probation officer” improperly delegated judicial authority to the probation officer by giving them the discretion to decide whether defendant must attend a residential program, as opposed to an outpatient program. The court also finds that a condition requiring defendant to “provide complete and current financial information, including verification of earnings, as directed by the probation officer” was valid under the Lent test.

Jun. 9, 2022 – In re Sambrano (4th Dist., Div. 2, E078147)

In a habeas proceeding, the Court of Appeal vacates defendant’s six attempted murder convictions based on the jury receiving a kill zone instruction that was erroneous under People v. Canizales (2019) 7 Cal.5th 591. The court agrees with the parties that Canizales applies retroactively to final cases. The court finds that the kill zone theory was categorically inapplicable under Canizales because there was no evidence of a primary target, and that the error was not harmless beyond a reasonable doubt.

Jun. 7, 2022 – People v. Rodriguez (1st Dist., Div. 4, A160994)

The Court of Appeal holds that defendant is not entitled to reduction of his probation term to two years under AB 1950 because he was convicted of a domestic violence offense that includes a specified term of probation. The court explains that defendant pleaded no contest to assault with force likely to produce great bodily injury, and the victim was his girlfriend, so PC 1203.097 applies and sets a minimum probation period of 3 years.

Jun. 6, 2022 – People v. Soto (3rd Dist., C092015)

The Court of Appeal reverses the trial court’s denial of a motion to withdraw defendant’s guilty plea pursuant to PC 1473.7 (failure to understand immigration consequences) where the plea form advised defendant only that there could be immigration consequences to the plea and where the record did not indicate that defendant understood the mandatory immigration consequences of his plea.

Jun. 2, 2022 – Deputy District Attorneys v. Gascon (2nd Dist., Div. 7, B310845)

The Association of Deputy District Attorneys for LA County (ADDA) sought a writ of mandate and preliminary injunction related to several Special Directives adopted by the District Attorney prohibiting prosecutors, in relevant part, from alleging prior strikes. The Court of Appeal agrees with the ADDA that the Three Strikes Law requires prosecutors to plead prior strikes, but disagrees with the ADDA’s position that prosecutors are required to prove them.

Note: The same panel also decided Nazir v. Superior Court (B310806).

Jun. 2, 2022 – Nazir v. Superior Court (2nd Dist., Div. 7, B310806)

Pursuant to a Special Directive adopted by the LA County District Attorney directing prosecutors to dismiss pending sentence enhancements, the prosecutor moved under PC 1385 to dismiss firearm enhancements alleged against defendant. The trial court denied the motion upon finding the Special Directive was not a proper consideration under PC 1385, and defendant sought writ relief. The Court of Appeal instructs the trial court to reconsider, holding that PC 1385 does not preclude consideration of the Special Directive.

Note: The same panel also decided Deputy District Attorneys v. Gascon (B310845).

May 27, 2022 – In re Allison B. (2nd Dist., Div. 1, B315698)

On appeal from orders terminating her parental rights, mother argued the Department failed to comply with its ICWA duty of inquiry. The Department filed a motion to dismiss arguing the appeal was moot based on post-appeal evidence showing that it had since made the required ICWA inquiry. Pursuant to CCP 909, the Court of Appeal accepts the post-appeal evidence and dismisses the appeal as moot.

May 26, 2022 – Young v. Superior Court (1st Dist., Div. 4, A162850)

In a writ proceeding, the Court of Appeal reverses the trial court’s denial of defendant’s request for discovery under the Racial Justice Act (PC 745(d)). The court explains that “good cause” for discovery under the Act is established where the defendant “advance[s] a plausible factual foundation, based on specific facts, that a violation of the … Act could or might have occurred,” and where disclosure is warranted under the seven pretrial-discovery factors articulated in City of Alhambra v. Superior Court (1988) 205 Cal.App.3d 1118.

May 26, 2022 – People v. Murphy (2nd Dist., Div. 7, B306773)

The Court of Appeal finds sufficient evidence of second-degree murder based on defendant’s driving while under the influence of marijuana. The court acknowledges that there is not currently an equivalent to a BAC test for alcohol that measures marijuana concentration or predicts the degree of impairment, but finds substantial evidence to support an inference that defendant was impaired.

May 26, 2022 – People v. Padilla (Supreme Ct., S263375)

The Supreme Court holds that, when a collateral attack on a long final judgment via habeas petition results in a remand for resentencing, the judgment is rendered nonfinal for Estrada purposes, and the defendant is entitled to benefit from new ameliorative legislation found retroactive under Estrada.

Note: The court’s holding is likely applicable to most, if not all, scenarios where a sentence is vacated and a resentencing occurs.

May 25, 2022 – Statement Dissenting From Order Denying Review – People v. Blessett (S273349, C074267)

In a murder case where extensive gang evidence was improperly admitted under Sanchez, yet the Court of Appeal found the error harmless beyond a reasonable doubt, Justice Groban, joined by Justice Liu, issues a statement dissenting from the order denying review. Justice Groban writes that “there is significant reason to doubt whether the erroneous admission of [the evidence] was harmless,” and that he “would grant review to consider this issue and thereby provide additional guidance to our lower courts on how to apply the Chapman standard for review of constitutional error.”

May 25, 2022 – People v. Ramirez (6th Dist., H047847)

The Court of Appeal concludes AB 333’s amendments to PC 186.22 are retroactive under Estrada and reverses appellant’s gang enhancements. However, the majority opinion adopts the dissenting opinion of People v. Burgos (2022) 550 Cal.App.5th 569 and holds that AB 333’s addition of PC 1109 (requiring bifurcated trials on gang enhancements) applies prospectively only because PC 1109 “is not an ameliorative statute within the meaning of the Estrada rule.” A concurring opinion would hold that PC 1109 is ameliorative and retroactive, but that the failure to bifurcate here was harmless.

May 25, 2022 – In re M.E. (3rd Dist., C094587)

In an appeal from a WIC 366.26 hearing, the Court of Appeal agrees with appellant that the juvenile court failed to comply with ICWA inquiry and notice requirements. The Department failed to adequately investigate the parents’ claim of Indian ancestry, and the juvenile court failed to ensure an appropriate inquiry had been conducted before concluding ICWA did not apply to the proceedings. The court remands the matter to ensure compliance with ICWA.

May 24, 2022 – People v. Whitson (2nd Dist., Div. 5, B305714)

Where the trial court denied, at the prima facie stage, a petition for resentencing under PC 1170.95, the Court of Appeal reverses and remands for an evidentiary hearing as to the convictions for murder and attempted murder. However, the court holds that PC 1170.95 does not apply to convictions for conspiracy to murder and so affirms the denial as to that conviction.

May 24, 2022 – In re Z.O. (4th Dist., Div. 3, G060663)

In an appeal from a WIC 366.26 hearing, the Court of Appeal finds the juvenile court appointed a guardian ad litem (GAL) for mother without providing grounds or explanation in the record. This error deprived mother of the ability to participate at critical stages in the proceedings and to effectively appeal and challenge the juvenile court’s reasoning for the appointment of the GAL. In addition, the agency’s reports did not include copies of the correspondence exchanged with or received from the tribes regarding possible Native American ancestry.

May 24, 2022 – People v. Jones (1st Dist., Div. 4, A160328)

The Court of Appeal concludes appellant is entitled to retroactive application of the ameliorative changes effected by SB 567 and AB 518 and remands for resentencing. The court further holds appellant is entitled to a “full resentencing” on remand at which appellant “may present arguments as to any sentencing issue,” including appellant’s firearm and prior serious felony enhancements. The court therefore declines to address whether SB 620 and SB 1393 – which took effect before appellant was sentenced – would themselves provide a basis for resentencing.

May 23, 2022 – Shinn v. Martinez Ramirez (U.S. Supreme Ct., 20-1009)

The U.S. Supreme Court holds that, under 28 USC 2254(e)(2), a federal habeas court may not conduct an evidentiary hearing or otherwise consider evidence beyond the state-court record based on the ineffective assistance of state postconviction counsel.

Note: This means that a petitioner with a claim of postconviction IAC not only must raise the claim in state court, but also must fully develop the facts supporting the claim in state court.

May 23, 2022 – Myers v. Superior Court (5th Dist., F083570)

Upon the filing of a petition for a one-year extension of an MDO commitment, trial on the petition must commence no later than 30 days before the person’s release date unless there is good cause for a continuance. Where this deadline is not met, the person must be released from custody pending trial. (People v. Cobb (2010) 48 Cal.4th 243.) The Court of Appeal holds that, under the plain language of PC 2972(c), the time a person spends on a Cobb release must be credited towards their commitment term, even though they are released from custody during that time.

May 20, 2022 – Islas v. Superior Court (6th Dist., H049445)

The Court of Appeal holds that misdemeanor DUI defendants are categorically ineligible for diversion under PC 1001.95. The court reasons that while PC 1001.95 does not specifically exclude DUI defendants, VC 23640 prohibits suspension or dismissal of DUI charges based on the defendant’s participation in a treatment program, and that to harmonize the two statutes, VC 23640 must be read to create an exception to the availability of diversion under PC 1001.95.

May 19, 2022 – People v. Parker (Supreme Ct., S113962)

In an automatic appeal from a death sentence, the Supreme Court finds no prejudicial error in the guilt or penalty phase and affirms the judgment. Among other rulings, the court holds that the trial court did not err by prohibiting the disclosure of videos (which were recorded but never broadcast by a third-party television production outfit preparing a documentary-style reality television show about district attorneys) depicting the prosecution team discussing defendant’s case.

May 18, 2022 – Review Grant – People v. Faial (S273840, A159026)

“This case presents the following issue: Does Assembly Bill No. 1950 (Stats. 2020, ch. 328) apply retroactively to a defendant, serving a suspended-execution sentence, whose probation was revoked before the law went into effect?”

May 18, 2022 – People v. Owens (2nd Dist., Div. 6, B310427)

In an appeal from the denial of a PC 1170.95 petition following a (d)(3) hearing, the Court of Appeal concludes substantial evidence supports the trial court’s finding that appellant acted with reckless indifference. The court also suggests that SB 775’s amendment providing that the Evidence Code shall apply at a (d)(3) hearing is not retroactive because it is a “procedural change.” But, as the concurring opinion observes, this portion of the majority opinion is dicta, and “it is unresolved whether the evidentiary provisions of SB 775 apply in an appeal from a completed resentencing hearing.”

May 17, 2022 – Elias v. Superior Court (4th Dist., Div. 1, D079425)

The Court of Appeal finds multiple pretrial delays did not violate defendant’s right to a speedy trial where the continuances were due to COVID-19 restrictions on jury trials and the resulting backlog, defendant’s medical isolation while in custody, and witness unavailability.

May 17, 2022 – In re M.V. (4th Dist., Div.1, D079743)

The Court of Appeal reverses the juvenile court’s dispositional orders removing the children from mother and father. The court concludes the juvenile court did not adequately consider whether there were “reasonable means” to protect the children without removing them from the parents’ custody. The court reiterates that dispositional orders removing children from the custody of both parents should be considered only as a “last resort.” The juvenile court has a duty to independently determine whether reasonable efforts were made by the agency to prevent or eliminate the need for removal.

May 16, 2022 – People v. Watkins (4th Dist., Div. 3, G059966)

The People appealed the denial of a motion to reinstate the complaint after the magistrate refused to hold defendant to answer. The case involved credit cards stolen in Orange County and then used in LA County. Although the evidence showed only that defendant used the cards in LA County – not that he stole them in Orange County – defendant was charged in Orange County. The Court of Appeal affirms, finding that neither PC 786(b)(1) nor PC 781 provided a basis for venue in Orange County in the absence of evidence that defendant participated in the theft of the cards in Orange County.

May 12, 2022 – People v. Fuentes (4th Dist., Div. 2, E075745)

The Court of Appeal holds that resisting a police officer (PC 148) is not a lesser included offense of fleeing a police officer while driving with wanton disregard (VC 2800.2) because the required element of PC 148 that the officer be performing a lawful duty is not a required element of VC 2800.2.

May 12, 2022 – People v. Nance (3rd. Dist., C093044)

In an appeal from the denial of an NGI petition for conditional release under PC 1026.2, the Court of Appeal affirms the trial court’s finding that defendant could be a danger if released under supervision and treatment. Though the trial court purported to grant the prosecution’s motion for a directed verdict, the appellate court finds the motion was actually a motion for judgment in a court trial and so applies the substantial evidence standard.

May 11, 2022 – Review Grant – People v. Reynoza (S273797, H047594)

“This case presents the following issue: Does Penal Code section 136.1, subdivision (b)(2), which prohibits dissuading or attempting to dissuade a victim or witness from causing a charging document ‘to be sought and prosecuted, and assisting in the prosecution thereof,’ encompass attempts to dissuade a victim or witness after a charging document has been filed?”

May 11, 2022 – Review Grant – People v. Cooper (S273134, B304490)

“The court limited review to the following issue: Must any of defendant’s sentencing enhancements be vacated due to recent statutory changes requiring that the offenses necessary to establish a ‘ “pattern of criminal gang activity” . . . commonly benefited a criminal street gang, and the common benefit from the offense is more than reputational’ (Pen. Code, § 186.22, subd. (e)(1), as amended by Stats. 2021, ch. 699, § 3)?”

May 11, 2022 – Review Grant – Camacho v. Superior Court (S273391, F082798)

“This case presents the following issue: Does a 15-year delay in bringing a defendant to trial under the Sexually Violent Predator Act (Welf. & Inst. Code, § 6600 et. seq) constitute a due process violation?”

May 11, 2022 – People v. Henderson (3rd Dist., C088883)

The Court of Appeal holds the trial court’s dismissal of two African-American prospective jurors for cause was justified because their statements during voir dire indicated they could not decide the case based solely on the evidence without regard to sympathy for defendant. The court also finds that the trial court abused its discretion when it discharged a sitting juror for dishonesty during trial, but that the error was harmless.

May 10, 2022 – People v. Lopez (4th Dist., Div. 1, D078841)

Disagreeing with People v. Flores (2022) 75 Cal.App.5th 495, the Court of Appeal holds that where SB 567’s amendments to PC 1170(b) are applied retroactively, a two-step prejudice test should apply. First, the reviewing court should assess whether the record establishes beyond a reasonable doubt all of the factors on which the trial court relied in imposing the upper term. Then, if the answer is no, the reviewing court should assess whether there is a reasonable probability the trial court would not have imposed the upper term had it known that it could not rely on some of the factors on which it relied.

May 10, 2022 – People v. Forester (4th Dist., Div. 1, D078912)

The two-year limitation established by AB 1950 for a term of felony probation does not apply where the conviction is for “an offense that includes specific probation lengths within its provisions.” (PC1203.1(l)(1).) The Court of Appeal holds that an offense committed against a victim of domestic violence, as defined by PC 1203.097, is “an offense that includes specific probation lengths within its provisions” and thus is not subject to the two-year limitation.

May 10, 2022 – People v. Pineda (2nd Dist., Div. 5, B304140)

May 6, 2022 – People v. Delgado (2nd Dist., Div. 8, B309947)

On appeal from the denial of a motion to suppress video evidence seized during the search of a “gang hangout,” the Court of Appeal concludes the warrant affidavit established probable cause to search. The dissenting opinion frames the issue as, “[D]oes personal possession of drugs and a gun by a gang member after being in a house for three to five minutes provide probable cause to believe he got those items from the residence he was visiting?” While the dissent would answer no, the majority affirms.

May 5, 2022 – People v. Parra Martinez (4th Dist., Div. 2, E076734)

Where defendant appealed following a remand for resentencing based on new legislation (SB 620) that amended PC 12022.5 and 12022.53 to allow trial courts discretion to strike firearm enhancements, the Court of Appeal affirms the trial court’s decision to not strike two firearm enhancements. The court holds the factors a trial court must consider when deciding whether to strike a PC 12022.5 enhancement are the same as those considered when deciding whether to strike a PC 12022.53 enhancement, and are the same factors a trial court must weigh when handing down a sentence in the first instance.

May 5, 2022 – Fresno County Public Guardian v. Superior Court (Fresno County App. Div., M21910568)

After proceedings were suspended because defendant was found incompetent to stand trial, the court referred the matter to the Public Guardian for an LPS conservatorship based on the opinion of a licensed marriage and family therapist (LMFT). The Public Guardian filed a petition for writ of mandate arguing that an LMFT was not “a qualified mental health expert” for the purpose of PC 1370.01 referrals. The appellate division rejects this argument, holding that an LMFT is a qualified mental health expert within the meaning of the statute.

May 2, 2022 – People v. Perez (2nd Dist., Div. 3, B300396)

On direct appeal from a multi-defendant jury trial, the Court of Appeal reverses defendants’ attempted murder convictions because the jury was instructed on the NPC doctrine, which was invalidated by SB 775. The court also holds that AB 333’s amendments to PC 186.22 are retroactive under Estrada and require reversal of defendants’ gang enhancements. However, the court holds that AB 333’s addition of PC 1109 is not retroactive under Estrada, because “although [PC 1109] is designed to minimize the prejudicial impact of gang evidence, it does not reduce the punishment or narrow the scope of . . . the gang statute.”

May 2, 2022 – In re A.R. (2nd Dist., Div. 8, B312476)

The Court of Appeal affirms the juvenile court’s victim restitution order made more than 5 years after appellant’s admissions but while appellant was still on probation. The court reasons that although WIC 730.6 requires that a victim restitution order be made at the time of the sentencing hearing unless the amount of the loss cannot be ascertained at that time, the statue does not prevent a juvenile from agreeing to a later determination of restitution, as appellant did here. The court also finds that the delay did not violate due process and that substantial evidence supports the amount of restitution ordered.

Apr. 29, 2022 – People v. Whitmore (4th Dist., Div. 3, G059779)

The Court of Appeal rejects defendant’s argument that the trial court prejudicially erred by conducting his December 2020 sentencing hearing with him appearing remotely without his consent. The court finds that defendant’s statutory right to be present was violated, but that the error was harmless under Watson, as “[t]here is no indication in this record that [defendant’s] physical presence in the courtroom would have benefited his case in any way.” The court also affirms the denial of defendant’s Marsden motion and finds sufficient evidence to support his conviction for felony false imprisonment.

Apr. 29, 2022 – People v. Yang (1st Dist., Div. 3, A162703)

The Court of Appeal holds defendant was entitled to presentence conduct credits for time spent in a state hospital receiving competency treatment. The court reasons that while the 2021 amendments to PC 4019 extending credits to defendants receiving competency treatment in state hospitals do not apply retroactively, equal protection principles compel application of the 2019 amendments to PC 4019 (extending credits to defendants receiving competency treatment in county jails) to defendants receiving such treatment in state hospitals. The court disagrees with People v. Orellana (2022) 74 Cal.App.5th 319.

Apr. 29, 2022 – People v. Delgado (4th Dist., Div. 3, G059650)

The Court of Appeal holds that youthful offenders who are statutorily ineligible for a youth offender parole hearing under PC 3051 are nevertheless entitled to a Franklin proceeding to preserve evidence for their eventual parole hearing. The court reasons that because PC 4801(c) requires the parole board to consider youth-related factors at all parole hearings for youthful offenders, even youth offenders who are statutory ineligible for a youth offender parole hearing “should be given the opportunity to make a record of those factors.”

Apr. 28, 2022 – People v. Anderson (1st Dist., Div. 4, A162633)

The Court of Appeal finds no error where the trial court considered defendant’s testimony at his parole suitability hearings in denying his subsequent petition for resentencing under PC 1170.95. The court agrees with People v. Myles (2021) 69 Cal.App.5th 688 that the Fifth Amendment privilege against self-incrimination is not implicated by the use of this type of testimony at a post-conviction resentencing hearing.

Apr. 28, 2022 – People v. Cruz-Partida (1st Dist., Div. 1, A160334)

The Court of Appeal finds evidence sufficient to support a conviction for assault with a deadly weapon where defendant pointed a loaded gun in the direction of two people during a dispute; he also fired the gun, but not at the people. The court emphasizes the context (an angry altercation) and the “fraught” circumstances surrounding the act.

Apr. 28, 2022 – Conservatorship of Eric B. (Supreme Ct., S261812)

The Supreme Court holds that traditional LPS conservatees are similarly situated with NGI’s for purposes of the right against compelled testimony, and that traditional LPS conservatees thus cannot be compelled to testify at trial absent a showing from the government that different treatment is constitutionally justified. The court does not address whether the government can make this showing or what level of scrutiny would apply.

April 28, 2022 – People v. Lopez (4th Dist., Div. 3, G060261)

In an appeal from the prima facie denial of defendant’s PC 1170.95 petition, the Court of Appeal holds that “the term ‘actual killer’ as used in the revised felony-murder rule of [PC 189(e)(1)] refers to someone who personally killed the victim and is not necessarily the same as a person who ’caused’ the victim’s death.” The court finds that defendant made a prima facie case for relief and remands with instructions to issue an OSC and conduct an evidentiary hearing.

Apr. 27, 2022 – People v. Czirban (6th Dist., H048989)

After the decedent was killed while driving one of defendant’s bulldozers, defendant’s business was investigated, and defendant was convicted of various business-related offenses and placed on probation. The Court of Appeal rejects defendant’s argument that a restitution award imposed as a condition of probation improperly included restitution for attorney’s fees deducted from the survivors’ benefit paid to the decedent’s partner pursuant to the Workers’ Compensation Act.

Apr. 27, 2022 – People v. Ramos (5th Dist., F080916)

The Court of Appeal holds that AB 333’s amendments to PC 186.22 apply retroactively and require reversal of appellant’s gang enhancement. The court holds that AB 333’s addition of PC 1109, which requires a bifurcated trial on a gang enhancement upon request, also applies retroactively, but that the failure to bifurcate was not prejudicial under Watson. The court observes that AB 333 does not limit the introduction of gang evidence relevant to the underlying charges, and that the gang evidence here was relevant to motive and would likely have been admissible.

Apr. 27, 2022 – People v. Weisner (3rd Dist., C095039)

On appeal from the denial of a PC 1170.18 request for reduction of a felony conviction, appellate counsel filed a Wende brief, and defendant filed a supplemental brief raising various claims. The Court of Appeal holds that Wende does not apply, and that the appeal must be dismissed as abandoned. The court explains that “in a non-Wende appeal, the defendant . . . does not have the right to submit his or her own arguments to the court for resolution,” except where the arguments are “limited to matters concerning representation” – e.g., Marsden motions to substitute counsel – and are “clearly labeled as such.”

Apr. 25, 2022 – People v. Estrada (2nd Dist., Div. 8, B311019)

The Court of Appeal affirms the trial court’s prima facie denial of defendant’s PC 1170.95 petition. The court reasons that the jury instructions at defendant’s 2010 trial required the jury to find that he acted with the intent to kill to convict him of first-degree murder, even under an aider-and-abettor theory. The court rejects defendant’s argument that the jury instructions allowed the jury to convict him of first-degree murder under an NPC theory.

Apr. 25, 2022 – People v. Serrano (5th Dist., F080692)

The Court of Appeal finds that the trial court erred by failing to properly instruct the jury on the malice element of dissuading a victim by force (PC 136.1(c)(1)), but that the error was harmless beyond a reasonable doubt. The court also finds defendant’s conviction for simple assault (PC 240) is a lesser included offense of his conviction for inflicting corporal injury (PC 273.5) and reverses the simple assault conviction.

Apr. 25, 2022 – In re Christopher L. (Supreme Ct., S265910)

The issue before the Supreme Court was whether it was structural error for a juvenile court to proceed with a jurisdiction and disposition hearing without an incarcerated parent’s presence and without appointing the parent an attorney. The court holds that the prejudicial effects of such errors are not beyond the ability of courts to assess under a harmless error analysis. In the dependency context, automatic reversal for errors that do not invariably lead to fundamental unfairness would “exact a particularly steep cost” given the child’s critical interest in avoiding unnecessary delays to their long-term placement.

Apr. 22, 2022 – People v. Birdsall (1st Dist., Div. 4, A159555)

Although the felony-murder instruction given at defendant’s 2015 jury trial did not include elements subsequently added by SB 1437 (PC 189(e)), the Court of Appeal holds the omission was not error and, if error, was not prejudicial, as there was “overwhelming and uncontested evidence” that defendant was an actual killer.

Apr. 21, 2022 – Brown v. Davenport (U.S. Supreme Ct., 20-826)

To obtain federal habeas relief, a state petitioner must satisfy two distinct prejudice tests: (1) the alleged constitutional violation must have had a “substantial and injurious effect or influence” under Brecht v. Abrahamson (1993) 507 U.S. 619; and (2) the state court’s application of the harmless error standard of Chapman v. California (1967) 386 U.S. 18 must have been unreasonable under AEDPA. The U.S. Supreme Court rejects the Sixth Circuit’s view that satisfaction of the Brecht test alone is sufficient.

Apr. 21, 2022 – People v. McDavid (4th Dist., Div. 1, D078919)

In an appeal from a resentencing following a prior remand, the Court of Appeal holds that People v. Tirado (2022) 12 Cal.5th 688 applies retroactively to nonfinal cases like defendant’s and remands for resentencing, finding nothing in the record indicating that the trial court was aware of its discretion to strike the PC 12022.53(d) firearm enhancement and impose a lesser, uncharged enhancement. The court also vacates the unpaid balance of a GC 29550.1 fee invalidated by AB 1869 and holds that the trial court erred by failing to recalculate defendant’s presentence custody credits as part of the resentencing.

Apr. 21, 2022 – People v. Bloom (Supreme Ct., S095223)

In an automatic appeal from a death sentence, the Supreme Court reverses two convictions for second-degree murder and the multiple-murder special-circumstance finding because trial counsel conceded defendant’s responsibility for the deaths in violation of McCoy v. Louisiana (2018) 138 S.Ct. 1500. The court rejects defendant’s claims based on the state’s delay in retrying defendant following federal habeas proceedings, the failure to suspend proceedings for a competency inquiry, evidentiary issues, the denial of defendant’s request for self-representation, and prosecutorial misconduct.

Apr. 18, 2022 – People v. Glukhoy (3rd Dist., C084169)

On direct appeal from a jury trial at which defendant was convicted of second-degree murder and the jury was instructed both on the NPC doctrine and on direct aiding and abetting, the Court of Appeal retroactively applies SB 1437’s amendments to PC 188 and PC 189 but finds that the resulting instructional errors were harmless beyond a reasonable doubt. The court reasons that although neither the instructions on the NPC doctrine nor those on direct aiding and abetting were proper, there was “overwhelming evidence” that defendant was guilty as a direct aider and abettor of implied malice murder.

Apr. 18, 2022 – People v. Vaughn (4th Dist., Div. 2, E073346)

The Court of Appeal declines to find that defendants forfeited their improper venue claim by not raising the issue in a pretrial writ petition, but concludes that any error was harmless and did not violate defendants’ federal constitutional rights. The court also holds that a defendant may be guilty of human trafficking of a minor and pimping a minor, as an aider and abettor, even if the defendant did not know the victim was a minor.

Apr. 18, 2022 – People v. King (2nd Dist., Div. 2, B315265)

Where defendant brought a motion to correct an unauthorized sentence 30 years after it was imposed, the Court of Appeal finds the trial court lacked jurisdiction to hear the motion because the unauthorized sentence rule constitutes an exception to the forfeiture doctrine and does not grant the trial court jurisdiction to hear a challenge to an unauthorized sentence after execution of sentence has commenced. The court dismisses the appeal, concluding that because the trial court lacked jurisdiction to hear the motion or modify the sentence, the denial of the motion is not an appealable order.

Apr. 15, 2022 – People v. Burgos (6th Dist., H045212)

The Court of Appeal holds that AB 333 applies retroactively, including the section adding PC 1109, which allows for bifurcated trials on gang enhancements. Based on the lack of bifurcation at defendants’ jury trial, the court reverses the robbery convictions and vacates the true findings on the gang enhancements.

Apr. 15, 2022 – People v. Coley (1st Dist., Div. 5, A159927)

SB 775 amended PC 1170.95(c) to specify that, upon the filing of a facially valid petition and the appointment of counsel, the trial court must “hold a hearing to determine whether the petitioner has made a prima facie case for relief.” The Court of Appeal assumes that this amendment applies retroactively to appellant’s case but finds that the trial court’s failure to hold the required hearing was harmless. The court reasons that by finding appellant guilty of attempted murder, the jury necessarily found he personally harbored express malice when he aided and abetted the second-degree murder.

Apr. 14, 2022 – People v. Crites (1st. Dist., Div. 4, A162940)

More than 40 years after his judgment for conviction for murder was final, appellant filed a motion to correct information contained in his presentencing probation report, and the trial court denied the motion for lack of jurisdiction. The Court of Appeal reverses, holding that the trial court had jurisdiction under PC 1203.01, as interpreted by In re Cook (2019) 7 Cal.5th 439, to act on the motion.

Apr. 13, 2022 – People v. Canedos (2nd Dist., Div. 1, B308433)

In an appeal from probation revocation proceedings where defendant was found to have committed a probation violation more than two years after being placed on probation, but before AB 1950 took effect, the Court of Appeal holds that AB 1950’s amendments to PC 1203.1 apply retroactively to terminate defendant’s probation prior to the violation, and reverses the trial court’s revocation order. The court disagrees with People v. Faial (2022) 75 Cal.App.5th 738.

Apr. 13, 2022 – People v. Pantoja (1st Dist., Div. 2, A162591)

The Court of Appeal affirms the trial court’s suppression of evidence of a firearm found on appellant when he was patted down during a traffic stop, finding that the officer’s pat search was not supported by reasonable suspicion. The court explains that neither “knowledge of a suspect’s past arrests or convictions” nor “knowledge that a suspect is merely under investigation” is sufficient to establish reasonable suspicion.

Apr. 12, 2022 – People v. Cooper (1st Dist., Div. 1, A161632)

Appellant was acquitted at trial of felon in possession of a firearm, but after a PC 1170.95(d)(3) hearing at which the parties submitted no new or additional evidence, the trial court denied relief based in part on its belief that petitioner possessed or fired a gun during the incident. The Court of Appeal reverses and remands for a new hearing, holding that “a trial court cannot deny relief in a [PC 1170.95] proceeding based on findings that are inconsistent with a previous acquittal when no evidence other than that introduced at trial is presented.”

Apr. 12, 2022 – People v. Flores (5th Dist., F081903)

Where defendant entered a plea bargain that provided for a longer term of probation than currently allowed (due to AB 1950’s amendments to PC 1203a and 1203.1), the Court of Appeal rejects the People’s position that the prosecutor and trial court should have the option of withdrawing from the plea bargain. The appellate court finds People v. Stamps (2020) 9 Cal.5th 685 inapplicable and modifies the probation term without remanding to the trial court.

Note: This issue is currently pending in the California Supreme Court in People v. Prudholme (S271057).

Apr. 11, 2022 – People v. Hola (3rd Dist., C087459)

On direct appeal from a jury trial at which defendant was convicted of second-degree murder under the NPC doctrine, the Court of Appeal holds that, under SB 775 and PC 1170.95(g), SB 1437’s amendments to PC 188 and PC 189 apply retroactively to defendant’s case. The court reverses the murder conviction but remands for a new trial, rejecting defendant’s argument that retrial is barred given the lack of substantial evidence in the record to support a murder conviction under any theory other than the NPC doctrine.

Apr. 11, 2022 – People v. Bracamontes (Supreme Ct., S139702)

In an automatic appeal from a death sentence, the Supreme Court finds no prejudicial error in the guilt or penalty phase and affirms the judgment. Among other rulings, the court holds that there was no prejudicial prefiling delay where the murder occurred in 1991 and appellant was charged in 2003 (following a cold hit DNA match), and that the trial court’s abuse of discretion in requiring appellant to wear leg chains at trial was harmless beyond a reasonable doubt.

Apr. 8, 2022 – People v. Banner (5th Dist., F079770)

The Court of Appeal holds that a trial court does not have a sua sponte duty to consider mental health diversion under PC 1001.36, and that trial counsel did not render ineffective assistance by failing to request diversion. The appellate court also holds that AB 124’s amendments to PC 1170(b) apply retroactively to defendant’s case and remands for resentencing, concluding that “psychological trauma based on mental illness may be a circumstance qualifying for the lower term presumption in [PC 1170(b)(6)].”

Apr. 7, 2022 – In re A.R. (4th Dist., Div. 3, G060677)

The Court of Appeal finds the ICWA inquiry conducted by the Department was inadequate. The court states that an ICWA inquiry must be conducted in every case, and that failure to conduct the inquiry constitutes a miscarriage of justice. Accordingly, the correct approach in ICWA inquiry appeals is to focus on the wider interest at play – i.e., the federal and state public policy of ensuring that potential Native American heritage is considered and inquired about in every dependency case.

Apr. 7, 2022 – People v. Lopez (Supreme Ct., S261747)

Even though appellant was convicted of the crime of conspiracy and not completed home-invasion robbery, the trial court sentenced him to an indeterminate life term under PC 186.22(b)(4) because the offense was found to be gang-related. Employing “the usual tools of statutory interpretation,” the Supreme Court holds that PC 182.22(b)(4), “fairly read,” is inapplicable to conspiracy convictions, and that the trial court erred in sentencing appellant to an indeterminate life term.

Apr. 6, 2022- In re I.F. (6th Dist., H049207)

The Court of Appeal vacates the juvenile court’s findings at jurisdiction and disposition that ICWA does not apply. The court finds that after the initial investigation into Indian heritage by the Department was conducted and the social worker had reason to believe the child was an Indian child, the duty of further inquiry set forth in WIC 224.2(e) was triggered. On remand, the Department must conduct a further inquiry and the juvenile court must determine whether the further inquiry was adequately and diligently conducted.

Apr. 4, 2022 – In re J.C. (2nd Dist., Div. 7, B312685)

The Court of Appeal finds the Department did not fulfill its duty to conduct an adequate inquiry into whether the child may be an Indian child because it did not ask any extended family members – some of whom were readily available – whether the child had any possible Indian ancestry. The court also states that the extensive inquiry requirements under WIC 224.2 presume that a parent’s declaration on the ICWA-020 form, reliable or not, is not enough, and that the child protective agency must do more than look at the form.

Apr. 4, 2022 – People v. Salinas (2nd Dist., Div. 5, B307985)

Where the prosecution exercised five peremptory challenges to strike Black women from the jury, the Court of Appeal holds that the fifth challenge violated Batson and Wheeler. In reaching this holding, the appellate court determines that the deference ordinarily given to a trial court’s evaluation of a prosecutor’s stated nondiscriminatory justification for striking a juror is unwarranted here, “because the trial court did not make a reasoned effort . . . to evaluate the nondiscriminatory justification the prosecutor offered.”

Apr. 4, 2022 – In re A.J. (3rd Dist., C093305)

The Court of Appeal finds the practice of “splitting” jurisdiction, disposition, and/or review hearings is unauthorized and erroneous. The court states dependency proceedings are “child-centric,” and hearings cannot be held separately “as to mother” and “as to father.” Although forfeited, the court addresses father’s argument that the juvenile court erred in denying his request for a continuance. The court finds the requirements of WIC 352, requiring the disposition hearing to be completed within 6 months of the detention hearing, take precedence over any arguable right of an incarcerated parent to be present.

Mar. 30, 2022 – People v. Kiger (4th Dist., Div. 2, E075551)

The Court of Appeal holds that defendant’s prior conviction for attempted domestic battery (PC 273.5(a); PC 664) is not a qualifying prior conviction for the purposes of domestic battery with a prior (PC 273.5(f)(1)). The court explains that “case law consistently holds that an attempt does not constitute a prior conviction unless the relevant statute expressly includes attempts.”

Mar. 30, 2022 – People v. McMurray (3rd Dist., C090767)

In an appeal from the denial of a CDCR recommendation for resentencing under former PC 1170(d)(1), the Court of Appeal finds that AB 1540’s amendments to the statute (now PC 1170.03) apply retroactively as a clarification of existing law and remands for proceedings consistent with the clarified procedural safeguards and guidelines. The court does not reach defendant’s argument that AB 1540 is also retroactive under Estrada.

Mar. 29, 2022 – People v. Kelley (3rd Dist., C089721)

The Court of Appeal rejects defendant’s argument that a 10-year stay-away order issued under PC 646.9(k) is unconstitutionally vague for failing to specify that defendant must not “knowingly” come within 400 yards of the protected party. The court reasons that a “knowingly” requirement is implicit in the terms of the order.

Mar. 29, 2022 – In re H.N. (2nd Dist., Div. 6, B313698)

The Court of Appeal holds that possession of child pornography in violation of PC 311.11(a) is a wobbler – not a “straight felony,” as argued by the People – and remands to the juvenile court with instructions to determine whether appellant’s PC 311.11(a) offense is a misdemeanor or felony.

Mar. 29, 2022 – People v. Flores (5th Dist., F080584)

In a PC 1170.95 case where appellant was convicted by plea and submitted a form petition for resentencing, the Court of Appeal overrules the trial court’s finding that appellant failed to make a prima facie showing because he did “nothing more than ‘print out and fill out a form.'” The court also rejects the People’s argument that appellant’s preliminary hearing transcript and the opinion from a co-defendant’s appeal conclusively established that appellant was the actual killer. The court remands with instructions to issue an OSC.

Mar. 28, 2022 – People v. Holiman (1st Dist., Div. 2, A160142)

The Court of Appeal reverses the trial court’s denial of defendant’s motion to suppress, holding that the arresting officer lacked reasonable suspicion to perform a traffic stop on defendant’s vehicle.

Mar. 28, 2022 – People v. Garcia (2nd Dist., Div. 8, B306081)

In a case where a jury found defendant guilty of robbery and assault with a deadly weapon, the Court of Appeal rejects defendant’s claims of instructional, evidentiary, and other error, but holds that a 10-year postconviction protective order imposed under PC 136.2(i) must be stricken, because defendant was not convicted of domestic violence. The court also holds that SB 567 and AB 124’s amendments to PC 1170(b) apply retroactively, vacates defendant’s upper-term sentence, and remands for resentencing.

Mar. 28, 2022 – In re Bailey (3rd Dist., C092799)

The Court of Appeal holds that prisoners eligible for early parole consideration pursuant to Prop 57 (those sentenced to a determinate term for a nonviolent felony) are not constitutionally entitled to an in-person parole consideration hearing under PC 3041.5. The court finds that the language of Prop 57 does not reflect an intent to require an in-person hearing, and that the “paper review” process challenged in this case does not violate equal protection or procedural due process principles.

Mar. 23, 2022 – In re K.T. (4th Dist., Div. 2, E077791)

The Court of Appeal reverses the order terminating parental rights and remands for a new hearing to determine whether ICWA applies. The court finds the Department failed to satisfy the duty of further inquiry and did not adequately investigate the children’s status as Indian children. The court notes it is publishing its opinion “not because the errors that occurred are novel but because they are too common.”

Mar. 22, 2022 – In re Friend (1st Dist., Div. 3, A155955)

On reconsideration following the California Supreme Court’s clarification of Prop 66’s successiveness bar for capital habeas petitions in In re Friend (2021) 11 Cal.5th 720, the Court of Appeal denies capital habeas petitioner’s request for a certificate of appealability, finding that petitioner did not make a substantial showing that his claims were not successive, or that he was actually innocent or ineligible for the death penalty.

Mar. 18, 2022 – In re J.Y. (2nd Dist., Div. 8, B313020)

The Court of Appeal holds the juvenile court abused its discretion when it set a WIC 361.3 hearing after the reunification period ended, where the Department fulfilled its obligation to assess relatives during the reunification period and there was no need to change the child’s placement.

Mar. 18, 2022 – People v. Edwards (2nd Dist., Div. 8, B309273)

The Court of Appeal holds that defendant’s confrontation right was not violated by the trial court’s order requiring witnesses to wear masks at a jury trial held during the COVID-19 pandemic. The court also finds substantial evidence to support the jury’s great-bodily-injury finding (PC 12022.7(a)) and affirms the trial court’s denial of defendant’s Romero motion.

Mar. 17, 2022 – In re Harper (4th Dist., Div. 2, E076045)

The Court of Appeal rejects habeas petitioner’s claim that the jury’s felony-murder special-circumstance finding made prior to Banks and Clark was not supported by substantial evidence in light of those decisions. The court finds substantial evidence that petitioner, although only 16 years old at the time of the offense, was a major participant who acted with reckless indifference to human life.

Mar. 16, 2022 – People v. Clements (4th Dist., Div. 2, E073965)

In an order modifying the opinion and denying rehearing, the Court of Appeal rejects appellant’s argument that, under People v. Vivar (2021) 11 Cal.5th 510, the appellate court should conduct an independent review of the trial court’s findings following a PC 1170.95(d)(3) hearing at which the evidence was limited to the record of conviction.

Mar. 16, 2022 – Review Grant – Wheeler v. Appellate Division (S272850, B310024)

“This case presents the following issues: (1) Can a trial court dismiss a strict liability offense pursuant to Penal Code section 1385 based in part on a defendant’s lack of knowledge concerning the offense? (2) Does state law preempt a local ordinance when both prohibit the same conduct and the state law has a mens rea component that the local ordinance does not?”

Mar. 16, 2022 – In re Antonio R. (2nd Dist., Div. 7, B314389)

In an appeal from the termination of parental rights, the Court of Appeal finds that the Department failed to make an adequate initial inquiry as required under WIC 224.2, and that the juvenile court erred in making a finding that ICWA did not apply. The Court of Appeal notes that the juvenile court’s error was prejudicial because, in most circumstances, the information in possession of extended relatives is likely to be meaningful in determining whether the child is an Indian child, regardless of whether the information ultimately shows the child is or is not an Indian child.

Mar. 14, 2022 – People v. Lopez (2nd Dist., Div. 7, B317228)

In a case where the trial court imposed consecutive sentences for two counts of continuous sexual abuse of a child, the Court of Appeal remands for resentencing because the trial court may not have understood it could impose concurrent terms. PC 667.61(i) requires imposition of consecutive terms for offenses listed in subsections (c)(1)-(7) if the crimes involved separate victims, but defendant’s offense was listed in subsection (c)(9).

Mar. 14, 2022 – People v. Guerrero (2nd Dist., Div. 7, B311548)

Appellant was sentenced to LWOP for offenses committed when she was 16. In a prior appeal, the Court of Appeal remanded for resentencing and directed the trial court to consider youth-related mitigating factors. On remand, the trial court proceeded in appellant’s absence and resentenced her to LWOP without discussing any youth-related factors. The Court of Appeal remands again for resentencing and orders all further proceedings to be heard in front of a different trial judge.

Mar. 14, 2022 – In re Brown (2nd Dist., Div. 7, F078864)

The Court of Appeal holds that the trial court erred when it failed to comply with the requirements of Humphrey in denying petitioner’s motion to reduce bail.

Mar. 11, 2022 – People v. Harden (4th Dist., Div. 1, D078191)

The Court of Appeal affirms the trial court’s prima facie denial of appellant’s PC 1170.95 petition, reasoning that the opinion from appellant’s original direct appeal conclusively established that the jury found that appellant was the actual killer.

Mar. 10, 2022 – Tan v. Superior Court (1st Dist., Div. 1, A163715)

The Court of Appeal holds that a defendant charged with driving under the influence is categorically ineligible for misdemeanor diversion under PC 1001.95.

Mar. 10, 2022 – In re D.P. (3rd Dist., C093132, C093535)

The Court of Appeal affirms the juvenile court’s denial of mother’s WIC 388 petition but reverses the order terminating parental rights. The court finds the juvenile court abused its discretion, as it performed no specific analysis on the beneficial parental relationship exception. The court remands for a new WIC 366.26 hearing in accordance with In re Caden C.

Mar. 9, 2022 – Review Grant – In re Harris (S272632, A162891)

“The issue to be briefed and argued is limited to the following: What evidence may a trial court consider at a bail hearing when evaluating whether the facts are evident or the presumption great with respect to a qualifying charged offense, and whether there is a substantial likelihood the person’s release would result in great bodily harm to others? (Cal. Const., art. I, § 12, subd. (b).)”

Mar. 9, 2022 – People v. Diaz (2nd Dist., Div. 5, B307726)

The Court of Appeal affirms the trial court’s denial of appellant’s motion to vacate conviction pursuant to PC 1473.7(a)(1), where appellant’s declarations that his attorney did not advise him of the immigration consequences of his plea were not credible, and the record demonstrated that he could not have bargained to maintain legal status.

Mar. 9, 2022 – People v. Breceda (4th Dist., Div. 3, G059322)

In a case where defendant’s jury trial was paused mid-trial due to the COVID-19 pandemic and then resumed after a delay of 73 days, the Court of Appeal upholds the trial court’s denial of defendant’s motions for mistrial in which defendant argued that the delay violated due process.

Mar. 9, 2022 – People v. Pacheco (4th Dist., Div. 3, G059940)

The Court of Appeal holds that a gang special circumstance finding at appellant’s jury trial did not preclude appellant from making a prima facie showing under PC 1170.95, as the special circumstance instruction required the jury to find only that appellant had the intent to kill, not that appellant directly aided and abetted the murder.