The Court of Appeal remanded for resentencing due the statutory amendment to Penal Code section 654 (Assembly Bill No. 518 (2021-2022 Reg. Sess.), which now affords trial courts the discretion to choose the count on which to impose punishment (instead of having to choose the one that provided for the longest potential term of imprisonment). In so doing, the court rejected that a remand would be futile because, although the court “described defendant’s conduct as ‘frankly vicious and gratuitous,’ the court did not impose the upper term on any count.
A162658
- March 30, 2023
- Division: One
- Attorney: David Stanley
- Categories: Criminal, Retroactivity of Changes in Law, Sentencing
A164830
- March 30, 2023
- Division: Four
- Attorney: Kathy Moreno
- Categories: Criminal, Sentencing
In an appeal from the denial of a PC 1172.6 petition, the Court of Appeal remanded for the trial court to clarify its findings regarding how it reconciled the required mental state for aiding and abetting implied malice murder with the court’s acknowledged possibility that appellant – a then 16-year-old runaway under the control of the actual killer, a man twice his age who raped a prostituted him – thought he was a participant in a vicious head game when the offense was committed.
A165143
- March 29, 2023
- Division: One
- Attorney: Matthew Alger
- Categories: Criminal, Right to Counsel, Sentencing
In this case, trial counsel admitted that he was unprepared for appellant’s resentencing hearing because he was unaware that it was on calendar for that day. The Court of Appeal held that defense counsel rendered ineffective assistance because his failure to prepare for the sentencing hearing or ask for a continuance prejudiced defendant. Therefore, the court reversed the judgment and remanded to the trial court for resentencing.
A160340
- March 29, 2023
- Division: One
- Attorney: Sara Ruddy
- Categories: Criminal, Retroactivity of Changes in Law, Sentencing
The Court of Appeal remanded for resentencing in light of recent amendments (Senate Bill No. 567 (2021-2022 Reg. Sess.)) to Penal Code section 1170, which now requires that circumstances in aggravation used to justify imposition of the upper term be found true by the jury, admitted by the defendant, or based on prior convictions evidenced by a certified record of conviction. In so doing, the Court found the issue was not moot, despite appellant having completed his term of incarceration, because appellant would be entitled to a reduction of his parole term resulting from any excess credits pursuant to Penal code sections 1170(a)(3) and 2900.5.
A162579
- March 28, 2023
- Division: Four
- Attorney: Judith Kahn
- Categories: Criminal, Retroactivity of Changes in Law, Sentencing
[Published Opinion] The Court of Appeal held that AB 518’s amendments to PC 654 and SB 567’s amendments to PC 1170(b) apply retroactively and require resentencing. The court rejected defendant’s arguments that, on remand: (1) in considering whether “the aggravating circumstances outweigh the mitigating circumstances [so] that imposition of the lower term would be contrary to the interests of justice” (PC 1170(b)(6)), the trial court may consider only aggravating circumstances found true beyond a reasonable doubt; and (2) the trial court may, under PC 1385, strike the jury’s PC 1203.66 finding.
A165167
- March 23, 2023
- Division: Five
- Attorney: Carrie Kojimoto
- Categories: Delinquency
The Court of Appeal held that remand is required for a determination of the minor’s eligibility and suitability for DEJ where it was “undisputed” that the prosecutor failed to provide written notice of his eligibility. If the juvenile court denies DEJ upon remand, the Court instructed that the juvenile court must: (1) expressly determine whether the minor’s wobbler offenses are felonies or misdemeanors; (2) properly calculate the minor’s maximum term of confinement; (3) award additional custody credits; and (4) strike the probation condition prohibiting the minor from possessing and using tobacco because that condition has no relation to the minor offense, is not itself criminal, and is not related to his future criminality notwithstanding evidence in the record that the minor regularly used marijuana.
A166035
- March 21, 2023
- Division: Three
- Attorney: Cristina Gabrielidis
- Categories: Dependency, ICWA
The juvenile court’s order terminating parental rights is conditionally reversed for ICWA compliance because the Agency failed to conduct an adequate inquiry under ICWA. This was prejudicial error because the record indicated there was readily obtainable information likely to bear meaningfully upon whether the child was an Indian child.
A164084
- March 20, 2023
- Division: Three
- Attorney: Jennifer Sheetz
- Categories: Criminal, Sentencing
The Court remanded the case for the court to exercise its discretion and consider evidence of appellant’s psychological, physical, or childhood trauma in sentencing him under the newly enacted Penal Code section 1170(b)(6).
A164757
- March 20, 2023
- Division: Five
- Attorney: Richard Schwartzberg
- Categories: Criminal, Probation, Parole, PRCS, and Mandatory Supervision
The Court of Appeal found that the terms of appellant’s mandatory supervision that required him “to participate in and complete programs [and counseling] as directed by probation” and prohibited him from leaving any such program without the probation office’s approval amounted to an unconstitutional delegation of judicial authority in violation of the separation of powers doctrine. The court, therefore, remanded the matter to the trial court with direction to either strike the conditions or amend them by specifying each kind of required program, service, and counseling.
A163883
- March 16, 2023
- Division: Five
- Attorney: Danalynn Pritz
- Categories: Delinquency
In light of recent amendments to Welfare and Institution Code section 707 (A.B. 2361), the Court of Appeal conditionally revered the sentencing order and remanded the matter with directions to refer the case to the juvenile court for a hearing on whether it would have transferred the case to the criminal court applying the amended law. If the juvenile court upholds the transfer, the Court ordered that the case then be transferred to the criminal court for resentencing in light of the recent amendments to Penal Code section 1170, subdivision (b).