First District Panel Victories

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[Published Opinion] In the first appeal, the Court of Appeal held that the trial court erred by failing to stay punishment for two convictions pursuant to PC 654. On remand, the trial court imposed a longer aggregate sentence by changing which counts were to run consecutive or concurrent. The Court of Appeal held that imposition of a longer sentence on remand violated double jeopardy principles and that the Serrato exception did not apply, as the original sentence was not an unauthorized, too lenient sentence.


A jury convicted defendant of battery with serious bodily injury (PC 243(d)) and found true the special allegation that he personally inflicted great bodily injury. The Court of Appeal held that the trial court prejudicially erred in instructing the jury that great bodily injury and serious bodily injury are “essentially equivalent.”


[Published Opinion] Defendant was convicted at trial of multiple sex offenses, including three counts for which the trial court imposed three consecutive terms of 25 years to life pursuant to the One Strike law (PC 667.61(m)). Agreeing with People v. Jimenez (2019) 35 Cal.App.5th 373, the Court of Appeal held that the information did not provide defendant with fair notice that his exposure on these counts was 25 years to life rather than 15 years to life and reduced the sentences accordingly.


The Court of Appeal reversed several of appellant’s convictions for filing false or forged instruments (PC 115(a)) in connection with her divorce proceedings, finding that the documents were filed by the opposing party for admission into evidence to show her deceit, and not to be “filed, registered, or recorded” in any public office as required under PC 115(a). Additionally, the Court reversed several of appellant convictions for offering false evidence (PC 132) because, although she gave the fraudulent documents to the opposing party’s attorney, she did not “offer[ ] [them] in evidence” because she neither moved them into evidence nor relied on them in the divorce trial.


[Published Opinion] The Court of Appeal held that the trial court abused its discretion by ordering appellant to pay noneconomic victim restitution pursuant to PC 1202.4(f)(3)(F), where there was no evidence of the impact of appellant’s crimes on the victim, so the trial court instead relied exclusively on its experience and “common sense” regarding similar incidents. The court reasoned that an award for noneconomic damages must be supported by “some evidence of the harm incurred by the particular victim.”


The Court of Appeal reversed one of appellant’s convictions for forcible rape (PC 261(a)(2)), finding that the evidence, including the victim’s testimony, established only two incidents of forcible rape occurring during the relevant timeframe. The Court also ordered that the abstract of judgment be modified to reflect that the 25 years to life sentence for sexual intercourse or attempted sexual intercourse with a child aged 10 or younger (PC 287(a)) was imposed to run concurrently rather than consecutively.


After the 12-juror panel was sworn but before alternate jurors were seated, defense counsel made a PC 231.7 (Batson-Wheeler) motion, but the court denied it as untimely. The Court of Appeal held that because, jury impanelment was not yet completed, the trial court erred in failing to consider defendant’s timely PC 231.7 motion. The Court further found that the trial court erred by sentencing appellant on count 1 (mayhem) and imposing another concurrent sentence on count 2 (assault by means of force likely to produce great bodily injury) when both convictions were based on the same act (appellant biting an officer’s thumb). Finally, in light of AB 1869, the court found that the booking fee the trial court imposed must be vacated.


In an appeal from disposition, the Court of Appeal finds there was insufficient evidence to support the court’s findings that the Department exercised due diligence to identify, locate, and contact minors’ relatives. The Court rejects the Department’s three arguments that mother had forfeited the challenge, that the findings were supported by substantial evidence, and that any error in making the findings was harmless.


In light of recent amendments to WIC 707 (AB 2361), the Court of Appeal held that the minor was entitled to a new juvenile transfer hearing. At the time of the minor’s initial hearing, the juvenile court applied the former preponderance of the evidence standard (as opposed to the now required clear and convincing evidence standard) and directed its analysis to whether “transfer[ ] is appropriate,” not whether the minor was “amenable to rehabilitation while under the jurisdiction of the juvenile court,” as is required under amended WIC 707.


The Court found that the ICWA inquiry requirements apply in a Fam Code 7822 appeal from the termination of parental rights. The juvenile court’s failure to make ICWA findings was error and, given the limited nature of the inquiry, the error was not harmless. The order terminating parental rights was conditionally reversed and remanded for ICWA compliance.