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.

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.

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.

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.

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.

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.

“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?”

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.”

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.

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.”

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.”

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.

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.

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.

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.

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 (S275940).

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.”

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

“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?”

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.”

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.

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.

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.

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.”

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.

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.

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.

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.

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.

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.

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.

“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?”

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.

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.

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.

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.

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.

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.

“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?”

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.

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.

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.

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).

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.”

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.

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.

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.

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.

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.

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.

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.

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.

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 prosecutor’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.

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.

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.

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.

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.”

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.

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.

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.

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.”

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.

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.

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.

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.”

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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).

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.

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.

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.

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.

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).

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.

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.

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.

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.

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.

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.

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.

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.

The Court of Appeal holds that the trial court abused its discretion when it excluded expert testimony as to defendant’s particular susceptibility to making a false confession and the expert’s psychological assessment of defendant, but finds the error harmless.

The Court of Appeal finds certain redacted portions of two prosecution memos related to the credibility of the testifying medical examiner were impeachment material that should have been disclosed under Brady and PC 1054.1, but reversal is not required because the jury did not accept the expert’s conclusions.

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.

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.

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.

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.

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, 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).

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 but concludes the misconduct was not prejudicial.

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.

In this 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 concurrence 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.

In this 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.

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.

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.”

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.

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.

The Court of Appeal holds that AB 333 is fully retroactive to all non-final judgments but finds PC 1109, enacted by AB 333, does not apply to special circumstance allegations under PC 190.2(a)(22). PC 1109 says nothing about the special circumstance statutes, its provisions are specific to PC 186.22(a), (b), and (d), and the procedures required by PC 1109 conflict with the procedures set forth in PC 190.1 et seq.

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.

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.

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.

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.”

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.”

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.

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.

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.

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.

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).

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 appellate 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.

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.

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.

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 the officer the discretion to decide whether defendant must attend a residential program, as opposed to an outpatient program. However, 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.

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.

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. 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.

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.

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).

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).

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.

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.

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.

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.

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 dissenting statement from the order denying review. Justice Groban states 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.”

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.

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.

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.

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.

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.

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.

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.

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 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.

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.”

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.

“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.

The Supreme Court denies review but decertifies the Court of Appeal opinion, which criticized appellate counsel for not including in a no-issues brief specific citations to authority that the trial court’s order was not appealable; the opinion characterized this as a violation of appellate counsel’s duty of candor. The opinion, previously published at 75 Cal.App.5th 584, is now depublished.

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.

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.

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 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 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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