The Court of Appeal held that appellant’s prior prison term enhancement under Penal Code section 667.5, subdivision (b) must be stricken, pursuant to statutory amendment made by Senate Bill No. 136 (2019-2020 Reg. Sess.), because they were not based on sexually violent offenses. The Court remanded the case for resentencing (instead of just striking the enhancements), and instructed the trial court to also recalculate appellant’s credits at the time of his resentencing.
A159026
- February 28, 2022
- Division: Three
- Attorney: Charles Dell’Ario
- Categories: Credits, Criminal, Sentencing
A162470
- February 28, 2022
- Division: Three
- Attorney: Patricia Brisbois
- Categories: Criminal, Probation, Parole, PRCS, and Mandatory Supervision
In a case in which appellant pleaded guilty to being an accessory after the fact to a robbery, the Court of Appeal held that the electronics search condition the court imposed as a condition of the appellant’s probation was invalid where the record did not show that appellant engaged in any electronic communications regarding the crime or used an electronic device in any matter related to the crime. The Court further found that appellant’s trial counsel rendered ineffective assistance in failing to object to the condition at sentencing.
A162622
- February 23, 2022
- Division: Two
- Attorney: Sibyl Day
- Categories: Criminal, Fines, Fees, and Victim Restitution, Probation, Parole, PRCS, and Mandatory Supervision
The Court of Appeal held that the electronics search condition the court imposed as a condition of appellant’s probation was invalid where the record did not indicate that appellant’s current or past offenses involved the use of electronic devices, and the court’s belief that the nature of appellant’s offenses (forgery and possession of personal identification) made it likely that she had or would use stolen personal identifying information online was purely speculative. The Court further held that two fees imposed under former Penal Code section 1203.1ab must be vacated pursuant to recently effective legislation (Assembly Bill No. 177), and that the probation conditions requiring payment of these fees must be stricken.
A159821
- February 23, 2022
- Division: Two
- Attorney: Brian McComas
- Categories: Criminal, Retroactivity of Changes in Law, 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. The A.G. conceded retroactivity.
A160100
- February 23, 2022
- Division: Two
- Attorney: Marylou Hillberg
- Categories: Criminal, Retroactivity of Changes in Law, Sentencing
The Court of Appeal held that appellant’s enhancement under Penal Code section 667.5, subdivision (a) must be stricken because none of the offenses appellant committed after the prison prior offense is a “violent” felony. The Court also rejected the A.G’s request that, on remand, the prosecution be allowed to withdraw from the plea because striking the enhancement does not deprive the prosecution of the benefit of their bargain when the plea agreement did not specify a specific prison term. Finally, the court held that appellant was entitled to resentencing under Senate Bill No. 567, which amended Penal Code section 1170 and limits the court’s ability to impose a sentence exceeding the middle term.
A163417
- February 22, 2022
- Division: Two
- Attorney: Seth Gorman
- Categories: Dependency, Permanency Planning (Section 366.26)
The Court of Appeal reversed the juvenile court’s order terminating mother’s parental rights finding that the juvenile court erred when it relied on improper factors in its assessment of the second and third elements of the beneficial relationship exception.
A159962
- February 17, 2022
- Division: One
- Attorney: Amanda Roze
- Categories: Criminal, Delinquency, Sufficiency of the Evidence
The Court of Appeal held that the juvenile court’s conclusion that appellant aided and abetted a second degree robbery involving a cell phone was not supported by sufficient evidence where appellant was one of four minors present during the robbery and the victim could only guess as to what “affirmative action” appellant may have taken.
A162517
- February 17, 2022
- Division: Five
- Attorney: Steven Lubliner
- Categories: Criminal, Retroactivity of Changes in Law, 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, subd. (b)(6), which now imposes a presumption that when the law specifies three possible terms, the court shall impose the lower term where, as relevant here, the defendant was a youth or experienced psychological, physical, or childhood trauma and those factors contributed to the commission of the offense. The A.G. conceded retroactivity.
A162912
- February 16, 2022
- Division: Three
- Attorney: James Donnelly-Saalfield
- Categories: Criminal, Sentencing
Because section 1170.95, as amended by Senate Bill 775, now provides resentencing relief for individuals convicted of attempted murder under certain circumstances, the Court of Appeal reversed the superior court’s order summarily denying appellant’s 1170.95 petition and remanded the matter for the court to reconsider the petition in light of SB 775.
A161171
- February 10, 2022
- Division: Two
- Attorney: Kevin Lindsley
- Categories: Criminal, Delinquency, Probation, Parole, PRCS, and Mandatory Supervision
[Published Opinion] The Court of Appeal held that a juvenile court cannot order a minor as a condition of his or her probation to pay for the cost of attendance at DUI-related programs.