In a case where only an enhancement under section 12022.53, subd. (d) was alleged, the trial court misunderstood the scope of its discretion under recent amendments to section 12022.53, which allow the court to modify the enhancement under section 12022.53, subd. (d), which carries a term of 25 years to life, to a lesser included enhancement under section 12022.53, subds. (b) or (c), which carry lesser terms of 10 years or 20 years, respectively. The Court of Appeal, therefore, remanded the case for resentencing.
A154092
- April 19, 2019
- Division: Five
- Attorney: George Schraer
- Categories: Criminal, Sentencing
A154336
- April 19, 2019
- Division: Four
- Attorney: Michael Sampson
- Categories: Criminal, Delinquency, Probation, Parole, PRCS, and Mandatory Supervision
A weapons condition of probation, prohibiting the minor from being present in any building or vehicle the he knows contains weapons, was overbroad. The Court of Appeal modified the condition so that it applied to only illegal weapons.
A155128
- April 19, 2019
- Division: Two
- Attorney: Carrie Kojimoto
- Categories: Criminal, Delinquency, Sentencing
Finding no substantial evidence to support the distant placement of a minor to a Ranch about 190 miles away from his home, the Court of Appeal reversed and remanded with instructions to reconsider the placement decision.
A155328
- April 19, 2019
- Division: One
- Attorney: Philip Brooks
- Categories: Criminal, Sufficiency of the Evidence
Standing alone, a defendant’s actions after a murder betraying an indifference to the loss of life was insufficient to show the defendant acted with reckless indifference to human life as required by Penal Code section 190.2, subdivision (d). Under the authority of People v. Banks, a defendant acts with reckless indifference to human life when he or she knowingly creates a grave risk of death. The evidence here did not establish that the defendant had the intent to create such a risk.
A154091
- April 9, 2019
- Division: Four
- Attorney: James Donnelly-Saalfield
- Categories: Criminal, Sentencing
Court of Appeal remanded the case so that the trial court may exercise its discretion to strike the five-year serious felony conviction enhancement pursuant to recently enacted Senate Bill No. 1393. Based on the reasoning in People v. Hurlic, the Court rejected the Attorney General’s argument that appellant was not entitled to the requested relief because he failed to obtain a certificate of probable cause and his plea bargain contained a stipulated sentence to which he was sentenced in conformity.
A153435
- April 8, 2019
- Division: Two
- Attorney: Carrie Kojimoto
- Categories: Criminal, Sufficiency of the Evidence
A minor was convicted of violating Penal Code sections 69 (resisting an executive officer) and 71 (threatening a public official) after he said to a school resource officer, “[i]f you take that badge off, I will kick your fucking ass.” The Court of Appeal found that insufficient evidence supported the section 71 finding because: (1) there was no evidence that the minor made the statement in order to cause the officer to refrain from doing any act in the performance of his duties, as required by section 71; (2) there was not evidence that the officer reasonably believed the minor would even carry out the threat; and (3) the minor did not threaten any property.
A153736
- April 5, 2019
- Division: Four
- Attorney: Stephen Bedrick
- Categories: Criminal, Jury Instructions
The trial court erred in failing to instruct on the lesser included offense of misdemeanor child endangerment. The trial court erroneously determined that the elements required for subdivision (a) of section 273a and subdivision (b) are the same and that the only difference is that subdivision (a) is a felony. The Court of Appeal explained that the felony proscribed in subdivision (a) requires that the defendant’s conduct create a risk likely to produce great bodily harm or death while the misdemeanor can be committed without creating such a risk.
A153263
- April 3, 2019
- Attorney: Erin Keefe
- Categories: Dependency, Permanency Planning (Section 366.26)
Father appealed the order terminating his parental rights arguing that the juvenile court should have applied the beneficial relationship exception. Father also filed a petition for writ of habeas corpus alleging ineffective assistance of counsel due to the failure of counsel to timely request a bonding study. The Court of Appeal agreed that father received ineffective assistance of counsel, issued the writ of habeas corpus, and reversed the order terminating parental rights of father.
A146665
- April 2, 2019
- Division: Three
- Attorney: Candace Hale
- Categories: Criminal, Sentencing, Sufficiency of the Evidence
The Court of Appeal remanded the matter to the trial court with instructions to strike the conviction on one of the two counts of being a felon in possession of a firearm. The convictions were based on two distinct incidents occurring two days apart. The court noted that this offense is a continuing offense, and there was no evidence that the defendant used two different guns or that he ever lost and regained control of the one gun. The Court further instructed the trial court to consider whether to exercise its discretion to strike the firearm enhancements and to hold a hearing in which the defendant can make an adequate record of any and all youth-related factors in anticipation of his eventual youth offender parole hearing.
A153933
- April 2, 2019
- Division: Three
- Attorney: Amanda Roze
- Categories: Criminal, Delinquency, Probation, Parole, PRCS, and Mandatory Supervision
The Court of Appeal modified the minor’s probation condition prohibiting him from using, possessing, or transporting any weapons & related items to include an intent element. The court also deleted the language referring to items “someone else” may consider to be a weapon.