[Published Opinion] The Court of Appeal held that the trial court erred in rejecting appellant’s Penal Code section 1473.7 motion to vacate a possession for sale conviction (Health & Safety Code section 11378), which ultimately led to appellant’s deportation. In reaching this decision, the Court of Appeal found that, at the time appellant filed the motion, she was no longer in custody in the underlying case (and her probation status in a wholly separate case did not bar her motion), and she showed it was reasonably probable that she would not have entered her no contest plea if she had known its adverse immigration consequences. The court further noted that her attorney’s failure to properly advise her was prejudicial considering appellant’s “undisputed, deep, lifelong connections to this country, the dire consequences of her plea and the likelihood that she would have fought harder to avoid these consequences if she had known of them.”
A159679
- August 30, 2021
- Division: Two
- Attorney: Richard Braucher
- Categories: Criminal, Guilty Pleas
A160078
- August 27, 2021
- Division: Four
- Attorney: Kathy Moreno
- Categories: Criminal, Sentencing
In an 1170.95 case, the Court of Appeal held that the trial court improperly conducted factfinding at the prima facie stage when subdivision (c) of the statute required the trial court to issue an order to show cause and conduct an evidentiary hearing because the record did not conclusively demonstrate appellant’s ineligibility as a matter of law.
A159380
- August 26, 2021
- Division: Three
- Attorney: Eric Weaver
- Categories: Criminal, Sentencing
The Court of Appeal held that the trial court applied the wrong standard of proof when denying appellant’s 1170.95 petition without an order to show cause or holding an evidentiary hearing. The trial court reviewed the record for substantial evidence rather than simply determining whether appellant made a prima facie showing that he was entitled to relief, as People v. Lewis (2021) 11 Cal.5th 952, 962 instructs.
A158143
- August 20, 2021
- Attorney: Louise Collari
- Categories: Dependency, Permanency Planning (Section 366.26)
The Court of Appeal found that the juvenile court did not conform with the principles articulated in In re Caden C. when it terminated mother’s parental rights. The Court determined that the juvenile court relied on its prior findings terminating mother’s reunification services and those findings were not relevant to a determination of whether the parental benefit exception applied. The Court remanded the matter to the juvenile court for a new section 366.26 hearing in accordance with Caden C.
A161417
- August 16, 2021
- Attorney: Seth Gorman
- Categories: Dependency, Disposition, Jurisdiction
[Published Opinion] The Court of Appeal found that the juvenile court’s amendments to the WIC section 300 petition to conform to proof produced at the jurisdictional hearing deprived appellant of due process. The amendments included allegations based on factual and legal theories not at issue in the original petition. The Court reversed the juvenile court’s jurisdictional order and the dispositional orders that derived from it and remanded the matter to the juvenile court for further proceedings.
A160776
- August 9, 2021
- Division: Five
- Attorney: Tonja R. Torres
- Categories: Criminal, Delinquency, Fines, Fees, and Victim Restitution
[Published Opinion] The Court of Appeal held that the juvenile court did not have authority under any provision of the Welfare and Institutions Code to require the minor or his family to pay for the Batterer’s Intervention Program, imposed as a condition of the minor’s probation. According to the Court, due to concerns about imposing costs on families that are already struggling, Senate Bill No. 190 (2017-2018 Reg. Sess.) (Stats. 2017, ch. 678) amended the Welfare and Institutions code to make most liability provisions inapplicable where, as here, the minor has been deemed a ward of the juvenile court.
A161095
- August 6, 2021
- Division: Four
- Attorney: Dirck Newbury
- Categories: Criminal, Sentencing
In a case in which appellant was charged with both attempted murder (Pen. Code, § §§ 187, subd. (a), 664) and attempted arson causing great bodily injury (Pen. Code, §§ 451, subd. (a), 664), among other offenses, the Court of Appeal held that the sentence for the attempted arson count should be stayed under Penal Code section 654 because it is based on the same acts or course of conduct as the attempted murder count.
A158309
- August 6, 2021
- Division: One
- Attorney: Charles Dell’Ario
- Categories: Criminal, Probation, Parole, PRCS, and Mandatory Supervision
Finding that a 4-ways search condition was unconstitutionally overbroad in that it could be read to include any electronic search of any device, the Court of Appeal modified the condition to clarify that it does not extend to electronic searches.
A161891
- August 5, 2021
- Attorney: Leslie Barry
- Categories: Dependency, Permanency Planning (Section 366.26)
In a partial reversal, the Court of Appeal agreed with appellant that the juvenile court erred when it stated it had no authority to issue a visitation order upon terminating jurisdiction. The Court noted that pursuant to WIC section 366.26, subdivisions (c)(4)(A) and (c)(4)(C), when children are placed in a legal guardianship the court shall also make an order for visitation with the parents unless the court finds by a preponderance of the evidence that visitation would be detrimental to the physical or emotional well-being of the child. The case was remanded to the juvenile court to address visitation pursuant to the relevant subdivision.
A160290
- July 29, 2021
- Division: Four
- Attorney: Michael Sampson
- Categories: Criminal, Sentencing
In this case, appellant was convicted of, among other misdemeanor counts, five felony counts arising out of his unlawful possession or carrying of a single firearm on a single occasion. On appeal, appellant contended that the trial court violated Penal Code section 654 by sentencing him to five concurrent prison terms rather than imposing a single term and staying execution of the sentence imposed on the remaining convictions. He also argued that the abstract of judgment should be amended to correct the improper designation of his conviction for possession of ammunition (§ 30305, subd. (a)(1)) as a violent felony. The Court of Appeal agreed, modified the judgment to stay execution of the sentences on counts two through five, and amended the abstract of judgment to delete the designation of count five as a violent felony.