A163565
April 15, 2022
Division: One
Attorney: Charles Holzhauer
Categories: Criminal Probation, Parole, PRCS, and Mandatory Supervision
The Court of Appeal held that the stay-away condition of appellant’s probation must be modified because it did not specify how far away from the victim appellant must stay and was therefore constitutionally overbroad. The Court further held that the term “weapon” in the weapons condition was vague and overbroad and must be modified to specify that “deadly or dangerous weapons” are prohibited. Finally, the court stuck the probation condition that prohibited “marijuana use even with a valid 215 card” because it conflicted with another condition the trial court imposed, that appellant “not use or possess drugs or drug paraphernalia unless he has a valid prescription.”
A162940
April 14, 2022
Division: Four
Attorney: Richard Schwartzberg
Categories: Criminal General Probation, Parole, PRCS, and Mandatory Supervision
[Published Opinion] 40 years after appellant’s judgment for conviction for murder was final, appellant filed a motion to correct information contained in his presentencing probation report. The Court of Appeal finds that the trial court erred when it denied the motion. Trial courts have jurisdiction under Penal Code, § 1203.01, as interpreted by In re Cook (2019) 7 Cal.5th 439, to correct the record transmitted to the Department of Corrections.
A161632
April 12, 2022
Division: One
Attorney: Alex Coolman
Categories: Criminal Sentencing Sufficiency of the Evidence
[Published Opinion] In this case, a jury acquitted appellant of the charge of being a felon in possession of a firearm, but the trial court nevertheless denied his 1170.95 petition based on its belief that appellant possessed and fired a gun. The Court of Appeal held that a trial court cannot deny relief in a section 1170.95 proceeding based on findings that are inconsistent with a previous acquittal when no evidence other than that introduced at trial is presented. Thus, the Court reversed the order denying the petition and remanded for the trail court to hold a new hearing.
A162316
April 12, 2022
Division: One
Attorney: Stephanie Clarke
Categories: Criminal Sentencing
The Court of Appeal held that the trial court erred in summarily denying appellant’s petition for recall of sentence pursuant to Penal Code section 1170.91, subdivision (b)(1), which provides for resentencing of military members or veterans suffering from certain mental health and substance abuse problems as a result of military service, if the sentencing court did not consider such problems as factors in mitigation.
A161067
April 6, 2022
Division: Two
Attorney: William Capriola
Categories: Criminal Sentencing
The Court of Appeal remanded for resentencing in light of Senate Bill No. 567 (2021-2022 Reg. Sess.), which amended Penal Code section 1170 and limits the court’s ability to impose a sentence exceeding the middle term. In so doing, the Court rejected the A.G.’s argument that a remand was not necessary because the jury’s verdict (convicting appellant of all the charged offenses) shows that it would have found the aggravating circumstances the trial court relied upon true beyond a reasonable doubt. The Court explained: “Since we cannot say the record clearly indicates the trial court would have imposed the aggravated terms if it had been aware there was a statutory presumption in favor of middle term sentences, remand is the appropriate remedy.”
A158271/A159457
April 5, 2022
Division: Five
Attorney: Eric Larson
Categories: Criminal General
In a case where there was no dispute that the challenged charges arouse out of the same occurrence, the Court of Appeal held that non-forcible sodomy (Pen. Code, § 286) is a lesser included offense of forcible sodomy (Pen. Code, § 286, subd. (c)(2)(C) because forcible sodomy with a person aged 14 to 17 years old would necessarily include an act of sodomy with a person under age 18. The Court further held that oral copulation of a person under age 18 (former Pen. Code, § 288a, subd. (b)(1), now Pen. Code, § 287, subd. (b)(1)) is a lesser included offense of forcible oral copulation of a minor aged 14 or older (former Pen. Code, § 288a, subd. (c)(2)(C), now Pen. Code, § 287, subd. (c)(2)(C)).
A163082
March 30, 2022
Division: Four
Attorney: Steven Lubliner
Categories: Criminal Probation, Parole, PRCS, and Mandatory Supervision
The Court of Appeal held that the trial court erred in ruling appellant was presumptively ineligible for probation under Penal Code section 1203, subdivision (e)(4) because, at the time he committed the offense in this case, he had only been convicted of one other felony (and not two as required under section 1203). While appellant had committed two other felonies before the offense in this case “only convictions that occurred before the defendant committed a later offense can render that defendant presumptively ineligible for probation under section 1203, subdivision (e)(4); it is not enough that the convictions for the prior felonies occurred before sentencing on the later offense.”
A160672
March 30, 2022
Attorney: Robert Derham
Categories: Criminal Sentencing
In this case the trial court imposed the upper term on the Penal Code section 12022.5, subdivision (a) (firearm) enhancement. The Court of Appeal held that the case must be remanded because the current version of Penal Code section 1170.1, as amended by Senate Bill 567 (2021-2022 Reg. Sess.), would only allow such a sentence if appellant stipulated to the facts underlying the circumstances in aggravation or the jury found them true beyond a reasonable doubt, none of which occurred here.
A163610
March 29, 2022
Division: One
Attorney: Jeffrey Kross
Categories: Credits Criminal
In a prior opinion, the Court of Appeal ordered that appellant was entitled to a total of 1,841 days of actual credit and no local conduct credit against his sentence, as he was convicted of murder. Because the amended abstract of judgment and amended minute order did not reflect the judgment as modified by the Court’s prior opinion, the Court again remanded for the trial court to enter the correct award of credits.
A158809
March 28, 2022
Division: Four
Attorney: Lauren Dodge
Categories: Criminal Sentencing
The Court of Appeal remanded the case for the trial court to reconsider appellant’s sentence in light of two amendments (Senate Bill No. 567 (2021-2022 Reg. Sess.) and Assembly Bill No. 124 (2021-2022 Reg. Sess.)) to Penal Code section 1170, which limited the court’s ability to impose a sentence exceeding the middle term and created a presumption in favor of the low term where the defendant was a youth or experienced psychological, physical, or childhood trauma and those factors contributed to the commission of the offense.
