The Court of Appeal held that the case must be remanded for the trial court to exercise its new discretion under Senate Bill No. 1393 (2017–2018 Reg. Sess.) whether to strike a five-year enhancement for a prior serious felony under Penal Code section 667, subdivision (a).
A157538
- December 20, 2021
- Division: One
- Attorney: Barry Karl
- Categories: Criminal, Sentencing
A160121
- December 20, 2021
- Division: Three
- Attorney: David Beaudreau
- Categories: Criminal, Probation, Parole, PRCS, and Mandatory Supervision, Sentencing
The Court of Appeal held that appellant’s period of probation must be reduced from three years to two in accordance with Assembly Bill No. 1950 (2019–2020 Reg. Sess.), an ameliorative change in the law that applies retroactively to all nonfinal cases.
A161138
- December 16, 2021
- Division: One
- Attorney: Robert Bryzman
- Categories: Criminal, Delinquency, Probation, Parole, PRCS, and Mandatory Supervision
The Court of Appeal agreed that the term “pornographic” as used in two of appellant’s probation conditions was unconstitutionally vague, and should be changed to: “materials or imagery that have a primary purpose of causing sexual arousal.” The Court further agreed that the trial court appeared to have imposed a broader probation condition – one that effectively prohibited appellant from using any internet browser for any purpose – than it intended to impose; thus, the court directed the trial court to clarify the language of the condition on remand. Finally, the Court reduced appellant’s three-year probation term to two years pursuant to Assembly Bill No. 1950 (2019-2020 Reg. Sess.).
A159264
- December 15, 2021
- Division: Three
- Attorney: Gene Vorobyov
- Categories: Criminal, Retroactivity of Changes in Law
The Court of Appeal accepted the Attorney General’s concession to appellant’s argument that Senate Bill 567’s amendments to Penal Code section 1170, subdivision (b) are retroactive, and remanded the matter for resentencing. At resentencing, the Court noted that appellant may also “urge the trial court to apply ameliorative legislation signed into law during the pendency of this appeal, including but not limited to Assembly Bill No. 518 (2021–2022 Reg. Sess.) and Assembly Bill No. 124 (2021–2022 Reg. Sess.).
A159079
- December 9, 2021
- Division: One
- Attorney: Patricia Brisbois
- Categories: Criminal, Jury Instructions
Appellant was convicted of various offenses, including assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)) and another offense with an accompanying enhancement for personal use of a deadly or dangerous weapon (Pen. Code, § 12022, subd. (b)(1)), related to an altercation in which he struck a minor on the head with a baseball bat. The Court of Appeal, relying on People v. Aledamat (2019) 8 Cal.5th 1, found that the trial court erred by instructing the jury in a manner that allowed it to conclude that a baseball bat was an inherently deadly weapon, and that the error was prejudicial.
A160827
- December 8, 2021
- Division: Four
- Attorney: Joseph Shipp
- Categories: Criminal, Sentencing, Sufficiency of the Evidence
[Published Opinion] After granting appellant’s 1170.95 motion, the trial court redesignated his two murder convictions as six home-invasion robberies or attempted robberies. Although the Court of Appeal held that the trial court did not err by resentencing appellant to prison on more counts of robbery than the number of murder convictions he had sustained, the Court found that substantial evidence did not support the redesignated conviction for one of six robberies. The “victim” named in that count was a neighbor who called 911 when he heard the gunshots, but there was no evidence he was a robbery victim.
A159307
- December 7, 2021
- Division: Five
- Attorney: Alan Siraco
- Categories: Criminal, Sufficiency of the Evidence
In a case in which appellant was convicted, following a jury trial, of first-degree murder (Pen. Code, § 187), the Court of Appeal found that the finding of premeditation and deliberation lacked substantial evidence, and accordingly reduced the murder to second degree. While the Court noted that there was some evidence of motive, the Court explained that was insufficient to support the verdict considering the lack of evidence showing any planning and the manner of killing not evidencing premeditation.
A161118
- November 30, 2021
- Division: Four
- Attorney: Carrie Kojimoto
- Categories: Criminal, Delinquency, Sentencing
[Published Opinion] In a case in which the juvenile court found a minor committed one count of reckless evasion of a peace officer (Veh. Code, § 2800.2, subdivision (a)), deadly weapon assault (Pen. Code, § 245(c)), and assault with force likely to produced great bodily injury (Pen. Code, § 245(a)(4)), the Court of Appeal held that the minor’s punishment for reckless evasion and one of the assault counts must be stayed under Penal Code section 654 because all of the counts were based on an indivisible course of conduct committed against the same victims. The Court also found that the juvenile court failed to designate the wobbler offenses as either felonies or misdemeanors. (Welf. and Inst. Code, § 702.)
A161582
- November 30, 2021
- Division: One
- Attorney: Randall Conner
- Categories: Criminal, Probation, Parole, PRCS, and Mandatory Supervision, Retroactivity of Changes in Law
Finding the recent amendment to Penal Code section 1203.1, subdivision (a) (Assembly Bill No. 1950 (2019-2020 Reg. Sess.)) applies retroactively, the Court of Appeal ordered that appellant’s probation be reduced from five years to three years (not one year because appellant’s specific offense designated a minimum probation length of three years).
A160987
- November 29, 2021
- Division: One
- Attorney: Rudolph Kraft
- Categories: Civil Commitment
Following the reasoning in Conservator of A.B. (2021) 66 Cal.App.5th 384, the Court of Appeal held that Probate Code section 2942 does not authorize compensation for services based solely on a showing that the fees were necessary to sustain the support and maintenance of the conservatee. Rather, it also requires consideration of whether the requested compensation is just and reasonable in light of the conservatee’s financial circumstances.