Court of Appeal vacated the defendant’s sentence and remanded the case for consideration of whether to strike or dismiss the 5-year enhancement charge under Senate Bill 1393 and for a determination of the defendant’s ability to pay fines and fees. Here, the Attorney General conceded that remand was appropriate so that the trial court may consider whether to strike or dismiss the firearm enhancement, so, although the defendant failed to object to the imposition of fines and fees on grounds that he lacked the ability to pay them, the Attorney General took the position that, since the case must be remanded anyway, it is appropriate for the court to consider the issue of inability to pay in light of Duenas on remand.
A153623
- August 26, 2019
- Division: Four
- Attorney: Jonathan Roberts
- Categories: Criminal, Fines, Fees, and Victim Restitution, Sentencing
A153804
- August 23, 2019
- Division: Two
- Attorney: James Donnelly Saalfield
- Categories: Criminal, General, Sentencing
The Court of Appeal conditionally reversed the judgment and remanded the matter to the trial court with directions to hold a hearing under section 1001.36 to determine whether to grant appellant diversion under that statute. The court found that section 1001.36 applies retroactively and that the record appears to show that the defendant suffers from a diagnosed mental disorder. And, although the defendant committed the present “violent” and “serious” offense while on probation, the Court of Appeal explained that the safety related requirement set forth in section 1001.36 is not that the court must be satisfied the defendant will not pose any unreasonable risk of danger to public safety, but specifically that the defendant will not pose an unreasonable risk of committing one of the violent felonies listed in section 667, subdivision (e)(2)(C)(iv).
A153853
- August 23, 2019
- Division: One
- Attorney: Amanda Roze
- Categories: Criminal, Delinquency, General
The judgment is conditionally reversed, and the matter is remanded to the trial court with directions to refer the case to the juvenile court for a transfer hearing under Welfare and Institutions Code section 707.
A151120
- August 20, 2019
- Division: Four
- Attorney: Kyle Gee
- Categories: Criminal, Prosecutorial, Juror, and Judicial Misconduct
The Court of Appeal remanded the matter for an evidentiary hearing because the record regarding juror misconduct was not sufficiently developed. The defendant moved for a new trial after collecting three juror declarations, which indicated the jury discussed the defendant’s failure to testify during deliberations. While the parties agreed that the jury’s discussions constituted misconduct, the record is not clear as to the scope of the misconduct and whether their discussion indicated that the jurors drew adverse inferences therefrom. Further, the record is silent as to whether the jurors were reminded that they should not consider the defendant’s decision not to testify.
A155831
- August 19, 2019
- Division: One
- Attorney: Kieran Manjarrez
- Categories: Criminal, Fines, Fees, and Victim Restitution
As part of the defendant’s plea agreement, he waived his right to appeal from the judgment except as to any sentencing error the court may make. The trial court sentenced the defendant under the plea agreement, except for it added a $25 administrative screening fee, which applies to individuals that are arrested and released on their own recognizance. Because there was no indication that the defendant had ever been released on his own recognizance, the Court of Appeal struck the fee.
A156099
- August 13, 2019
- Attorney: Jesse Rodriguez
- Categories: Dependency, ICWA
In an appeal from the termination of parental rights, father claimed that the Department failed to comply with ICWA notice requirements. The Court of Appeal agreed that the Department neglected to contact all the appropriate tribes. Furthermore, it was the duty of the social worker to seek out additional information, not the obligation of family members to volunteer it.
A154052
- July 31, 2019
- Division: Two
- Attorney: Shannon Chase
- Categories: Criminal, Prosecutorial, Juror, and Judicial Misconduct
The trial court improperly discharged a juror during deliberations based on what it perceived to be the juror’s inability to set aside a speculative scenario he had imagined rather than evidence presented in court. However, the Court of Appeal viewed the evidence differently, agreeing with defense counsel that the juror’s comments to the trial court suggested a very real possibility that the juror was actually expressing doubt as to appellant’s guilt due to the absence of evidence. Judgment reversed.
A154635
- July 31, 2019
- Division: Four
- Attorney: Janice Wellborn
- Categories: Criminal, General
In a case arising from an altercation with a tow truck driver attempting to repossess appellant’s car, the Court of Appeal directed the trial court to vacate a protective order because protective orders issued pursuant to Penal Code section 136.2 are limited to the pendency of the criminal action in which they are issued or to probation conditions, and appellant was sentenced to state prison.
A154371
- July 26, 2019
- Division: Two
- Attorney: Robert Angres
- Categories: Criminal, Sentencing
Because lewd conduct within the meaning of Penal Code section 288, subd. (a) already has an age-range factor for the victim as an element of the offense, the trial court erred by relying on the victim’s age by itself in setting the defendant’s upper term sentence. (See Penal Code section 1170, subd. (b)). The Court of Appeal, therefore, vacated the defendant’s sentence and remanded the matter for resentencing.
A155354
- July 25, 2019
- Division: Three
- Attorney: Nathaniel Miller
- Categories: Criminal, General
The Court of Appeal found that, under the totality of the circumstances, the record did not affirmatively demonstrate that the defendant voluntarily and knowingly admitted the prior conviction allegation. In this case, the trial court accepted the defendant’s admission without advising him of his constitutional rights and obtaining waivers of those rights. The court also failed to advise the defendant of the specific consequences of his admission. The matter was, therefore remanded for a new adjudication of the prior conviction allegation, by admission after proper waivers or trial, and for resentencing.