Recent Opinions & Review Grants

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 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 20, 2022 – Islas v. Superior Court (6th Dist., H049445)

The Court of Appeal finds misdemeanor DUI defendants are categorically ineligible for diversion under PC 1001.95. Although 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. To harmonize the two statutes, VC 23640 must be read to create an exception to the availability of diversion under PC 1001.95.

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 – but does not “definitively rule” – 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.”

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.

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.

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.

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.

In an appeal from the denial of NGI defendant’s 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.

The Supreme Court denies review but decertifies the Court of Appeal opinion, which dismissed an appeal of defendant’s resentencing petition as nonappealable where appellate counsel filed a no-issues brief. The Court of Appeal opinion criticized appellate counsel for not including in the no-issues brief specific citations to authority that the trial court order was not appealable, which the Court of Appeal interpreted as a lack of candor. The Court of Appeal opinion, previously published at 75 Cal.App.5th 584, is now depublished.

“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?”

“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)?”

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 solely on the evidence without regard to sympathy for defendant, but not because they believed the criminal justice system treats African-Americans unfairly (which would be an impermissible basis for dismissal). 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.

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.

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.

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.”

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.

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.

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.”

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.

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.

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.

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.”

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.

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.

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.

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.

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.

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.

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.”

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.

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.

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.

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.

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.

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 prior resentencing.

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.

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.

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 he did not know the victim was a minor.

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.

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.

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.

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.

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.

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.

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.”

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.

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.

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.

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)].”

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.

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.

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.

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.

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.”

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.

The Court of Appeal holds that defendant’s prior conviction for attempted domestic battery (PC 273.5(a), 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.”

In an appeal from the denial of a CDCR recommendation for resentencing under the former PC 1170(d)(1), the Court of Appeal finds 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.

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.

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.

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.

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.

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 per PC 3041.5. The language of Prop 57 does not reflect an intent to require an in-person hearing, and the “paper review” process challenged in this case does not violate equal protection or procedural due process principles.

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.”

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.

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 had fulfilled its obligation to assess relatives during reunification and there was no need to change the child’s placement.

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.

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.

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.

“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?”

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 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.

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).

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.

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.

The Court of Appeal affirms the juvenile court’s denial of mother’s WIC 388 petition but reverses the order terminating parental rights. The appellate 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.

“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).)”

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.

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.

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.

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