This page contains short summaries of recent published opinions issued by the California Supreme Court, Courts of Appeal, and Appellate Divisions – and recent review grants (and a selection of other review-related orders) issued by the California Supreme Court – in criminal, juvenile, and civil commitment cases. We endeavor to include summaries of all recent published opinions and review grants in such cases, and to post the summaries within 1-2 work days of issuance of the opinion or review grant.

Where directly relevant to California criminal, juvenile, or civil commitment cases, we also occasionally include summaries of recent opinions and orders granting certiorari issued by the U.S. Supreme Court. For more information on recent U.S. Supreme Court cases, see the court’s website or SCOTUSblog.

May 15, 2024 – People v. Ellis (2nd Dist., B325433)

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)

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)

The Supreme Court holds that PC 3051‘s exclusion of young adult offenders sentenced to LWOP is constitutionally valid, as appellant did not establish the Legislature acted irrationally in declining to grant the possibility of parole to young adult offenders convicted of special circumstance murder.  Justices Liu and Evans dissent, each filing a separate dissenting opinion.

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)

Effective January 1, 2022, AB 624 made an order transferring a minor from juvenile to adult criminal court an appealable order subject to immediate appellate review. The Court of Appeal holds that AB 624 does not apply retroactively under Estrada. The court explains that AB 624 is not “ameliorative,” in that an appeal “is no more favorable for defendant than the mechanism that was available before AB 624 that he did not pursue – review by writ petition.”

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.