The Court of Appeal reversed the order denying appellant’s petition for resentencing under Penal Code section 1172.6 because the trial court failed to appoint counsel prior to conducting its prima facie review. The Court further found that the error was not harmless because the trial court relied on an order denying an earlier petition that did not apply the definitions of a “major participant” and “reckless indifference to human life” as set forth in People v. Banks (2015) 61 Cal.4th 788 (Banks) and People v. Clark (2016) 63 Cal.4th 522 (Clark).
A162732
- September 14, 2022
- Division: One
- Attorney: Gordon Brownell
- Categories: Criminal, Sentencing
A162652
- September 12, 2022
- Division: Five
- Attorney: Pauline Villanueva
- Categories: Criminal, Delinquency, Probation, Parole, PRCS, and Mandatory Supervision
The Court of Appeal held that the condition prohibiting a minor from being in Alameda County unless with a parent or guardian was overbroad because it failed to permit travel authorized by a probation officer.
A163958
- September 12, 2022
- Division: Five
- Attorney: Jonathan Roberts
- Categories: Criminal, Probation, Parole, PRCS, and Mandatory Supervision
Because the tolling triggered by summary revocation does not keep a probation term from running, the Court of Appeal reversed the probation revocation order, finding that appellant’s probation had ended by operation of law when AB 1950 took effect, eight days before he committed the purported violation. The Court further held that appellant’s agreement to extend his probation as part of a negotiation disposition did not estop him from invoking the benefit offered by AB 1950.
A164105
- September 9, 2022
- Division: Five
- Attorney: Neale Gold
- Categories: Dependency, ICWA
In an appeal from a WIC section 366.26 hearing, the Department conceded that it failed to comply with its initial duty of inquiry under the ICWA when it did not question maternal relatives as to whether the minor might be of Indian descent. The Court agreed and conditionally reversed and remanded for compliance with the ICWA and related state law.
A161928
- September 1, 2022
- Division: Three
- Attorney: Kyle Gee
- Categories: Criminal, Sentencing
In light of People v. Strong (2022) 13 Cal.5th 698, the Court of Appeal reversed the denial of appellant’s petition for resentencing under Penal Code section 1172.6 because the denial was based on the jury finding that the killing underlying appellant’s conviction was committed while appellant was engaged in the commission of a felony, but the verdict in appellant’s case was rendered years before the Supreme Court clarified the law of felony murder liability in People v. Banks (2015) 61 Cal.4th 788 (Banks) and People v. Clark (2016) 63 Cal.4th 522.
A161881
- August 31, 2022
- Division: Two
- Attorney: Maureen Bodo
- Categories: Criminal, 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 that the error was not harmless because “[s]ome ‘degree of speculation’ would [ ] be required for [the Court] to conclude that the trial court would have exercised its sentencing discretion in the same way if it had taken the statutory presumption in favor of the middle term into account.”
A161796 & A162143
- August 31, 2022
- Division: Four
- Attorney: Waldemar Halka & John Schuck
- Categories: Criminal, Sentencing
In A162143, the Court of Appeal remanded for resentencing because the record was, at best, unclear whether the trial court was aware that it had the discretion to strike a firearm enhancement and imposed in its place a lesser enhancement under Penal Code section 12022.53. Upon remand, the Court of Appeal held that appellant would be entitled to the benefit of recently enacted Senate Bill No. 81 (2021–2022 Reg. Sess.), which amended Penal Code section 1385 “to specify factors that the trial court must consider when deciding whether to strike enhancements from a defendant’s sentence in the interest of justice.” In A161796, the Court of Appeal held that the one-year prior prison term enhancement under Penal Code 667.5, subdivision (b) must be stricken because it was not for a sexually violent offense.
A163776
- August 26, 2022
- Division: One
- Attorney: Janice Wellborn
- Categories: Criminal, Sentencing
The Court of Appeal remanded for resentencing 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 specified circumstances were “contributing factor[s] in the commission of the offense”.
A164098
- August 25, 2022
- Division: Two
- Attorney: William Farber
- Categories: Criminal, Fines, Fees, and Victim Restitution
The Court of Appeal held that, because the federal and California constitutions oblige a court to consider ability to pay in determining whether a fine is excessive under the Eighth Amendment or deprives a defendant of due process as explained in People v. Dueñas (2019) 30 Cal.App.5th 1157, the trial court abused its discretion by denying appellant’s request for an ability to pay hearing before imposing a $5,000 restitution fine. The Court further found that the error was not harmless where appellant was deprived of the opportunity to present evidence on ability to pay, had significant debt, was 61 years old when convicted, had COVID-19 on three occasion, and continued to experience lingering symptoms of COVID-19 as of the sentencing hearing.
A162597
- August 25, 2022
- Division: Three
- Attorney: Stanley Radtke
- Categories: Criminal, Fines, Fees, and Victim Restitution, Sentencing
In light of Assembly Bill No. 1869, which eliminated certain fees in criminal cases and rendered the unpaid balance of any such fees unenforceable and uncollectible, the Court directed the trial court to vacate the fee for probation’s presentence report (Pen. Code, § 1203.1(b)). The Court further held that remand was necessary in light of recent amendments (Senate Bill No. 567 (2021-2022 Reg. Sess.) to Penal Code section 1170, which limits the court’s ability to impose a sentence exceeding the middle term and creates 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.