In a WIC 366.26 appeal, mother argued the Department did not fully comply with the inquiry and notice requirements of the ICWA. The Department conceded the error. The Department’s reports did not indicate whether the minor’s extended family members and “others who have an interest in the child” had been interviewed as required under WIC 224.2(b) and Rule 5.481(a)(5). Consequently, the ICWA notices did not contain statutorily required information. The matter was conditionally reversed and remanded.
**Between March and November 2024, there were many important unpublished panel victories in the First District. Unfortunately, we were not able to update our First District victories page during that time. Even though the victories are not on the website, we appreciate all of the hard work done by the panel and continued dedication to our clients.**
A166851
- July 21, 2023
- Division: Three
- Attorney: Amy Grigsby
- Categories: Dependency, ICWA
A165130
- July 19, 2023
- Division: Two
- Attorney: Cynthia Jones
- Categories: Criminal, Fines, Fees, and Victim Restitution, Retroactivity of Changes in Law, Sentencing
Upon resentencing after remand, the trial court ruled it lacked jurisdiction to conduct a full resentencing of appellant based on the terms of the remittitur. The Court of Appeal remanded again, holding that “a remand for resentencing as to part of a sentence [which was directed here] necessarily re-opens the entire sentence for full resentencing.” The Court further explained that it’s prior opinion regarding appellant’s constitutional claim of indigency was not limited to the restitution fine, as the trial court interpreted, and directed that appellant receive another ability to pay hearing with regards to the remaining fines and fees.
A166708
- July 17, 2023
- Division: Four
- Attorney: Mark Johnson
- Categories: Criminal, Sentencing
The Court of Appeal held that the trial court erred by summarily denying appellant’s PC 1172.6 petition. The Court found that the trial court erred by determining appellant’s eligibility for relief based on the original information rather than the amended information filed on the day of appellant’s plea. “[A]n amended information supersedes the original pleading, which has no further effect.”
A166550
- July 11, 2023
- Division: One
- Attorney: William Farber
- Categories: Criminal, Sentencing
In this case, the trial court accepted a plea agreement that specified a three-year term of probation, but then sentenced appellant to four years’ probation. The Court of Appeal held that, once the trial court accepted the terms of the negotiated plea, it lacked jurisdiction to alter them. In so holding, the court rejected that the issue had be forfeited due to trial counsel’s failure to object, finding this to be an unauthorized sentence.
A166718
- July 10, 2023
- Division: One
- Attorney: David Polsky
- Categories: Criminal, Sentencing
The Court of Appeal held that the trial court erred by summarily denying appellant’s PC 1172.6 petition for resentence on the grounds that it had already denied his previous petition under former PC 1170.95. The Court explained that the pervious petition was denied without prejudice, at appellant’s counsel’s request, and the Court of Appeal’s opinion affirming that denial did not foreclose appellant from filing another petition.
A164649
- July 7, 2023
- Division: Four
- Attorney: Christopher Stansell
- Categories: Criminal, Probation, Parole, PRCS, and Mandatory Supervision
[Published Opinion] Agreeing with People v. Canedos (2022) 77 Cal.App.5th 469 (and disagreeing with People v. Faial (2022) 75 Cal.App.5th 738), the Court of Appeal held that where a defendant was found to have committed a probation violation more than two years after being placed on probation, but before AB 1950 took effect, AB 1950’s amendments to PC 1203.1 apply retroactively to terminate the defendant’s probation prior to the violation. The court reversed the order revoking and terminating defendant’s probation.
A161875
- July 5, 2023
- Division: Five
- Attorney: Megan Hailey-Dunsheath
- Categories: Criminal, Sentencing
The Court of Appeal remanded for resentencing due to the recent statutory amendments to Penal Code section 654, 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).
A162472
- June 30, 2023
- Division: Two
- Attorney: Audrey Chavez
- Categories: Criminal, Sentencing
[Published Opinion] In a complex, multi-defendant appeal from both a resentencing under SB 620 and SB 1393 and the partial denial of defendants’ PC 1172.6 petitions, the Court of Appeal held, among other things, that: (1) neither the jury’s “intent to kill” findings in connection with the gang-murder special circumstances, nor the Court of Appeal’s prior holding that the Chiu error in the case was harmless, preclude a prima facie showing under PC 1172.6; and (2) AB 333’s amendments to PC 186.22 require reversal and retrial on the gang-related firearm enhancements (PC 12022.53(e)) and gang-murder special circumstances (PC 190.2(a)(22)).
A165002
- June 30, 2023
- Division: Two
- Attorney: Richard Braucher
- Categories: Criminal, Delinquency, Probation, Parole, PRCS, and Mandatory Supervision
The Court of Appeal stuck an electronics search condition, finding that it was too broad under In re Ricardo P. (2019) 7 Cal.5th 1113 and In re Alonzo M. (2019) 40 Cal.App.5th 156. The court reasoned that the condition was too broad because it was imposed to ensure general compliance with the minor’s other probation terms, but it failed to specify which of the other terms exactly.
A161996
- June 29, 2023
- Division: One
- Attorney: James Donnelly-Saalfield
- Categories: Criminal, Sentencing
The Court of Appeal remanded for resentencing in light of recent amendments (Senate Bill No. 567 and Assembly Bill No. 124) to PC 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 experienced psychological, physical, or childhood trauma and those factors contributed to the commission of the offense. Here, the probation report indicated that appellant had a “difficult” childhood, during which he experience physical abuse, neglect and other trauma.