The Court of Appeal held that the trial court abused its discretion by denying appellant’s motion to strike the firearm enhancement under Penal Code section 12022.53(d), in connection with his conviction for second degree murder, considering the court made extensive findings related to appellant’s particular circumstances (low cognitive ability, brain-based deficits, and history of trauma), which the court then used as the reason to strike the firearm enhancement in connection with another conviction.
Panel Victories are updated monthly.
A157756
- December 22, 2021
- Division: Two
- Attorney: Jennifer Peabody
- Categories: Criminal, Sentencing
A159806
- December 22, 2021
- Division: One
- Attorney: William Capriola
- Categories: Criminal, Fines, Fees, and Victim Restitution, Sufficiency of the Evidence
The Court of Appeal held that substantial evidence does not support appellant’s conviction of rape of a child (Pen. Code, § 269, subd. (a)(1)), specifically because there was insufficient evidence of sexual penetration. The Court further held that the trial court committed legal error by awarding restitution for noneconomic losses caused by appellant’s Penal Code section 311.11 conviction (possession of child pornography), although section 311 falls outside the noneconomic restitution provisions of Penal Code section 1202.4, subdivision (f)(3)(F).
A162909
- December 21, 2021
- Division: Three
- Attorney: Michael Allen
- Categories: Criminal, Delinquency, Sentencing
The Court of Appeal held, and the Attorney General conceded, that the trial court failed to specify the minor’s maximum period of physical confinement as required under section 726, subdivision (d)(1).
A162298
- December 20, 2021
- Division: Five
- Attorney: Kathy Moreno
- Categories: Criminal, Habeas, Sentencing
Agreeing with People v. Secrease (2021) 63 Cal.App.5th 231, the Court of Appeal held that a pre-Banks/Clark special circumstance finding does not automatically bar a defendant from obtaining resentencing relief under section 1170.95, and that a defendant may challenge a jury’s special circumstance finding under Banks/Clark when petitioning for section 1170.95 relief even if he or she has not first done so by habeas corpus.
A157538
- December 20, 2021
- Division: One
- Attorney: Barry Karl
- Categories: Criminal, Sentencing
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).
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.