The Court of Appeal held that AB 333, which became effective while appellant’s appeal was pending and, among other things, amends the substantive elements of a gang enhancement (Pen. Code, §§ 186.22(b) & 12022.53(e)(1)), applies retroactively. The Court further held that the true findings on the gang and gang-related gun enhancements must be vacated and remanded for retrial because the jury did not make the factual findings required under the amended statute.
A163842
- February 24, 2023
- Division: Four
- Attorney: Marcia Clark
- Categories: Criminal, Retroactivity of Changes in Law, Sufficiency of the Evidence
A164227
- February 24, 2023
- Division: Three
- Attorney: Elizabeth Richardson-Royer
- Categories: Criminal, Probation, Parole, PRCS, and Mandatory Supervision
The Court of Appeal held that the following probation conditions must be stricken or narrowed: (1) condition requiring appellant to “report any law enforcement contact to the Probation Officer within 24 hours for any reason” because it is unconstitutionally vague and overbroad in that it can be triggered by even the most insignificant contacts; (2) the condition requiring appellant to “[c]ooperate with the Probation Officer in a plan for psychological, psychiatric, or substance abuse treatment, or other rehabilitation, and follow all directions of the Probation Officer,” because it amounted to an unconstitutional delegation of judicial authority in that it allows the probation department to insist appellant participate in any type of plan for rehabilitation; (3) the condition requiring appellant to “[p]rovide a copy of any medical prescription to the Probation Department within 2 business days of its receipt” because it was overbroad in that it was not limited to psychotropic drugs or any other drugs that might be connected to defendant’s rehabilitation; and (4) the condition that prohibits appellant from associating with any “ ‘person, as designated by your probation officer,’ “ because it is unconstitutionally overbroad.
A161420
- February 17, 2023
- Division: Two
- Attorney: Neil Rosenbaum
- Categories: Criminal, Sentencing
In light of People v. Strong (2022) 13 Cal.5th 698, the Court of Appeal reversed the trial court’s order denying appellant’s resentencing petition, concluding that appellant had adequately pleaded a prima facie case for resentencing relief under Penal Code section 1172.6 and that nothing in the record of conviction conclusively refuted the pleaded allegations.
A163772
- February 17, 2023
- Division: Four
- Attorney: Jeremy Price
- Categories: Criminal, Probation, Parole, PRCS, and Mandatory Supervision
The Court of Appeal held that the trial court did not have a sufficient basis to toll appellant’s PRCS because he had not “absconded” from supervision (Pen. Code, § 3456(b)), but rather was incarcerated during the tolling periods. The Court, therefore, reversed the trial court’s order extending appellant’s PRCS and, since appellant’s three-years PRCS term had expired, directed the trial court to enter an order terminating it.
A163622
- February 16, 2023
- Division: Three
- Attorney: Catherine White
- Categories: Criminal, Fines, Fees, and Victim Restitution
The Court of Appeal held that the trial court erred by imposing a $15,000 ($5,000 for each conviction), when the maximum allowable fine under Penal Code section 1202.4(b) is $10,000. The Court also directed the trial court to correct errors in the abstract of judgment.
A162946
- February 15, 2023
- Division: Two
- Attorney: Gabriel Bassan
- Categories: Competency, Criminal, Right to Counsel
The Court of Appeal held that the trial court committed reversable error by conducting an inadequate Faretta colloquy where appellant had twice been found incompetent to stand trial and had spent roughly two years at the state hospital in Napa, and where the trial court judge asked only four substantive questions during the Faretta colloquy, none of which “adequately informed appellant of the consequences of self-representation or inquired about his well-documented mental health issues.”
A164438
- February 10, 2023
- Division: Five
- Attorney: Pamela Tripp
- Categories: Dependency, ICWA
In an appeal from disposition, the Court agreed that the ICWA notice was insufficient because paternal great-grandfather’s name was not included and the Agency did not comply with its duty of inquiry. The error was not harmless because the information missing from the notice was the identity of the person of potential Indian heritage. The order was conditionally affirmed and remanded for compliance with the ICWA and relevant California law.
A161564
- February 7, 2023
- Division: Four
- Attorney: Lillian Hamrick
- Categories: Criminal, Jury Instructions
[Published Opinion] Defendant was convicted of assault with force likely to cause great bodily injury (Pen. Code, § 245 (a)(4)) after the trial court, over defense objection, instructed the jury that this was a lesser included offense of the charged offense of assault with a deadly weapon (Pen. Code, § 245 (a)(1)). The Court of Appeal reversed the conviction, finding that, under both the elements test and the accusatory pleading test, assault with force likely was not a lesser included offense. The court further found that, assuming the “material variance” test also applies, “the variance between the accusatory pleading and [the] conviction was material and prejudicial.”
A164332
- February 7, 2023
- Division: Two
- Attorney: Larenda Delaini
- Categories: Criminal, Fines, Fees, and Victim Restitution, Sentencing
The Court of Appeal held that appellant’s sentence for receiving the stolen catalytic converter (Pen. Code, § 496(a)) should have been stayed under Penal Code section 654 because there was no evidence that he had a different intent or objective in receiving the stolen catalytic converter than he did in stealing it. The court also vacated the $50 fee imposed pursuant former Penal Code section 987.5(a) in light of AB 1869.
A163460
- February 7, 2023
- Division: Two
- Attorney: William Capirola
- Categories: Credits, Criminal, Sentencing
The Court of Appeal held that the case must again be remanded because the trial court erroneously believed the law required consecutive 25 years to life terms on two forgery counts, when in actuality section 667(c)(6) give trial courts discretion to impose concurrent sentences where, as here, the offenses arise from the same set of operative facts. Upon remand, the Court directed the trial court to also recalculate appellant’s post-sentence custody credits pursuant to People v. Buckhalter (2001) 26 Cal.4th 20, 23.