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.
A162316
- April 12, 2022
- Division: One
- Attorney: Stephanie Clarke
- Categories: Criminal, Sentencing
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.
A160852
- March 29, 2022
- Division: Three
- Attorney: Leslie Prince
- Categories: Criminal, Retroactivity of Changes in Law, Sentencing
The Court of Appeal held that the trial court’s application of the People v Banks (2015) 61 Cal.4th 788 and People v. Clark (2016) 63 Cal.4th 533 factors to what it considered “undisputed or clearly established . . . facts of this case” involved the prohibited weighing of evidence and the exercise of discretion at the prima facie stage. The court further held that the trial court had no valid basis for finding appellant was ineligible for relief as a matter of law because the special-circumstance finding was made before Banks and Clark. Thus, the court reversed the order summarily denying appellant’s 1170.95 petition for resentencing.
A161850
- March 29, 2022
- Division: Five
- Attorney: Eileen Manning-Villar
- Categories: Criminal, Delinquency, Sentencing
Former Welfare and Institutions Code section 731, subdivision (c) authorized the juvenile court to commit a ward to the DJJ for a period not to exceed “the maximum term of imprisonment that could be imposed upon an adult for the same offense.” (Former § 731, subd. (c), italics added.) However, Senate Bill No. 823 (2019-2020 Reg. Sess.) amended the statute to limit the maximum time of confinement to “the middle term of imprisonment that could be imposed upon an adult convicted of the same offense.” In this case, the juvenile court calculated the minor’s maximum time of confinement in accordance with former section 731, subdivision (c). Thus, the Court of Appeal remanded the matter for the juvenile court to redetermine the minor’s maximum time of confinement and to prepare a corrected record of commitment.
A161761
- March 29, 2022
- Division: Two
- Attorney: Carlo Andreani
- Categories: Criminal, General
The Court of Appeal reversed the order denying appellant’s motions under Penal Code sections 17, subdivision (b) and 1203.4, finding that it could not conclude based on the record that the trial court exercised its discretion impartially and with full consideration of the relevant circumstances. Specifically, the court noted that, when presented with motions to reduce and dismiss convictions, courts should consider the nature and circumstances of the offense, the defendant’s attitude toward the offense, character traits evidenced by the defendant’s behavior and demeanor, the defendant’s performance on probation, and the defendant’s post-probation conduct. But, here, the court’s consideration of appellant’s motions appeared to have been overwhelmingly influenced by its view of the vile and racist language appellant used during the offenses and in two incidents a few weeks prior to the offenses, and inferences drawn from that use of language about appellant’s character 10 years later.
A160142
- March 28, 2022
- Division: Two
- Attorney: Gordon Brownell
- Categories: Criminal, Fourth Amendment
The Court of Appeal reversed the trial court’s denial of appellant’s motion to suppress, holding that the arresting officer lacked reasonable suspicion to perform a traffic stop on appellant’s vehicle for failing to properly signal before making a right-hand turn.