The Court of Appeal reversed the order denying appellant’s petition for resentencing. The Court held that appellant was eligible for relief under Senate Bill 1393 (2017–2018 Reg. Sess.), which afforded trial courts discretion to strike prior serious felony enhancements (Pen. Code, § 667, sub. (a)(1)), because his judgment was not final when the statute became effective, and any objection to the timeliness of appellant’s petition was forfeited by the prosecution’s failure to object below. Although the court recognized that nether Penal Code sections 1170, subdivision (d)(1) or 1170.03 authorize defendants to self-petition for resentencing, any objection to the form of the petition was forfeited by the prosecution’s failure to object below and the denial of appellant’s petition without the provision of section 1170.03 procedures constituted error.
**Between March and November 2024, there were many important unpublished panel victories in the First District.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.**
A162469
- July 11, 2022
- Division: Two
- Attorney: Janet Gray
- Categories: Criminal, Sentencing
A161691
- July 7, 2022
- Division: Two
- Attorney: Dirck Newbury
- Categories: Criminal, Sentencing
[Published Opinion] 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, among other things, created a presumption in favor of the middle term and 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. Here, the Court found that the trial court relied on several aggravating circumstances that were neither admitted by appellant nor found to be true beyond a reasonable doubt. The Court also rejected the A.G.’s harmless error argument.
A158608
- July 7, 2022
- Division: Four
- Attorney: Lauren Dodge
- Categories: Criminal, Sentencing
The Court of Appeal remanded the case for the trial court to reconsider appellant’s sentence in light of recent amendments (Senate Bill No. 567 (2021-2022 Reg. Sess.) to Penal Code section 1170, which, among other things, 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. Due to appellant’s plea agreement including a stipulated prison term, the Court further held that a limited remand in accordance with People v. Stamps (2020) 9 Cal.5th 685 was the appropriate remedy.
A164646
- July 5, 2022
- Division: Three
- Attorney: Suzanne Davidson
- Categories: Dependency, ICWA
The Court finds the Department did not discharge its ICWA duty of initial inquiry. The Department’s reports did not include “detailed descriptions” of any inquiries made of extended family members. In addition, the juvenile court did not meet its duty to ensure the Department adequately investigated possible Indian ancestry. The Department did not oppose a conditional reversal and remand for ICWA compliance.
A162105
- July 5, 2022
- Division: Three
- Attorney: Victor Morse
- Categories: Criminal, Retroactivity of Changes in Law, Sentencing
In accordance with People v. Tirado (2022) 12 Cal.5th 688, which held that a court could strike a greater firearm enhancement under Penal Code section 12022.53, subdivision (d) and impose a lesser uncharged enhancement instead, the Court of Appeal held that the trial court erred when it denied appellant’s request to strike or reduce his firearm enhancement based on the erroneous belief that it lacked authority to impose a lesser included enhancement in its place. The Court further held that, in light of Assembly Bill No. 333 (2021–2022 Reg. Sess.), which “raised the bar of proof for the gang offense and gang enhancement in several ways,” appellant’s gang offense conviction (Pen. Code, § 186.22, subd. (a)) and true gang enhancement finding (Pen. Code, § 186.22, subd. (b)) must be vacated. Upon remand, the Court noted that the prosecution may elect to retry appellant under the new law established by AB 333.
A162953
- June 30, 2022
- Division: Five
- Attorney: Larenda Delaini
- Categories: Criminal, Probation, Parole, PRCS, and Mandatory Supervision
The Court of Appeal remanded the matter for reconsideration of certain fees (account receivable fee and restitution interest) in light of Assembly Bill No. 177 (2021-2022 Reg. Sess.), which, among other things, eliminating certain “court-imposed costs” in criminal cases. The Court remanded the matter, instead of just striking the fees, because the trial court failed to identify the statutory basis for the challenged fees. Upon remand, the Court held that the trial court should also reconsider the probation conditions that required appellant to obtain a drug and alcohol problem assessment or undergo outpatient treatment “if directed” and “if required” by probation. The court found that, as written, the conditions improperly give the probation department unfettered discretion to determine whether appellant must obtain an assessment or undergo treatment as a condition of probation, as opposed to just selecting the particular program.
A161765
- June 30, 2022
- Division: Three
- Attorney: Matthew Watts
- 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 this case, it was undisputed that the court relied on “several aggravating factors” without jury findings or a stipulation from appellant to support them.
A161578
- June 30, 2022
- Division: Three
- Attorney: Patricia Brisbois
- Categories: Criminal, Fines, Fees, and Victim Restitution
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 of Appeal vacated the criminal justice administrative fee (former Government Code, § 29550, subd. (c)).
A161381
- June 30, 2022
- Division: One
- Attorney: Gene Vorobyov
- Categories: Criminal, Retroactivity of Changes in Law, Sentencing
The Court of Appeal held that the trial court twice erred under Penal Code section 654 by imposing separate punishments for both domestic violence and simple assault where those convictions arose from single incidents of domestic violence. The Court further found that the trial court erred by ordering appellant to pay a domestic violence fund fee pursuant to Penal Code section 1203.097, because appellant was committed to state prison and section 1203.097 only applies “[i]f a person is granted probation. . . .” Finally, the Court remanded the case for resentencing in light of AB 518, which amended Penal Code section 654 to provide that an act or omission punishable in different ways by different provisions of law may be punished under any such provision (as opposed to the provision that provided for the longest potential term of imprisonment). Upon resentencing, the Court noted that “any applicable legislative changes can be considered by the trial court on remand.”
A164325
- June 29, 2022
- Division: One
- Attorney: Alex Green
- Categories: Criminal, Retroactivity of Changes in Law, 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, among other things, created a presumption in favor of a low prison term for certain youthful offenders. Upon remand, the trial court must conduct a full resentencing, including recalculating appellant’s custody credits, which the AG conceded were inaccurate.