[Published Opinion] Finding no rational basis to deny those convicted of Penal Code section 18710 (simple possession of a destructive devise) the benefits of a county jail sentence that the Realignment Legislation affords those convicted of the more serious Penal Code section 1170(h)-eligible destructive device offenses, the Court of Appeal reformed section 18710 to make its violation punishable under the sentencing provisions of section 1170(h). The Court then remanded the matter to the trial court with directions to terminate appellant’s post-release supervision and to modify the judgment consistent with its opinion.
Panel Victories are updated monthly.
A161128
- November 16, 2021
- Division: Four
- Attorney: Leah Spero
- Categories: Criminal, Sentencing
A159264
- November 9, 2021
- Division: Three
- Attorney: Gene Vorobyov
- Categories: Criminal, Sentencing
The Court of Appeal held that, pursuant to Senate Bill No. 136 (2019–2020 Reg. Sess.), appellant’s prison prior enhancement must be stricken because appellant did not serve a prior prison term for a sexually violent offense. In addition, pursuant to section 654, the trial court erred by imposing concurrent sentences for arson and vandalism because they arose from an indivisible course of conduct. Finally, the Court found that the trial court erred by limiting appellant’s presentence conduct credit under section 2933.1, because appellant was not convicted of a violent felony; thus, section 4019 governed.
A159606
- November 4, 2021
- Division: Five
- Attorney: Mark Greenberg
- Categories: Criminal, Sentencing
The Court of Appeal found that the trial court erred by weighing the evidence at the prima facie stage of an 1170.95 resentencing petition to discredit appellant’s averment that he was not the actual killer and to find, based on the evidence, that appellant was the actual killer. The Court, therefore, reversed the trial court’s order denying the petition and remanded the matter with directions to issue an order to show cause under section 1170.95, subdivision (c) and hold a hearing pursuant to section 1170.95, subdivision (d) to determine whether to vacate appellant’s murder conviction and recall his sentence and resentence him.
A159877
- October 28, 2021
- Division: Four
- Attorney: Leah Spero
- Categories: Criminal, Probation, Parole, PRCS, and Mandatory Supervision
Pursuant to Assembly Bill No. 1950 (2019-2020 Reg. Sess.), the Court of Appeal ordered that appellant’s probation be reduced to a two-year term.
A157062
- October 28, 2021
- Division: Two
- Attorney: Hilda Scheib
- Categories: Criminal, Sentencing
[Published Opinion] The Court of Appeal remanded the case to allow the trial court to analyze appellant’s Romero motion in conformity with the spirit of the law. In reaching this decision, the Court emphasized that the trial court did not appear to “appropriately considered the facts and circumstances of [appellant’s] current and prior offenses, or her particular background, character, and prospects.”
A161325
- October 25, 2021
- Division: Two
- Attorney: Larenda Delaini
- Categories: Criminal, Fines, Fees, and Victim Restitution
In this case appellant broke the victim’s iPhone 7. In calculating the amount of victim restitution appellant would be ordered to pay, the trial court split the difference between the actual cost of the victim’s phone and the newer model the victim purchased. The court then tacked on an additional amount to account for the “time and effort” the victim expended to obtain the phone. The Court of Appeal reversed the order, finding that restitution for the damaged cellphone was the replacement cost of a like cellphone, not a cellphone costing more than twice as much. In addition, while the court noted that trial courts may account for time and lost wages, splitting the difference between the cost of two cellphones was not a “rational method” of determining the value of lost time, and there was no evidence at all to establish the existence, amount, or value of any time lost by the victim to replace the cellphone.
A161646
- October 22, 2021
- Division: Three
- Attorney: Jason Stenson
- Categories: Criminal, Sufficiency of the Evidence
[Published Opinion] The Court of Appeal held that insufficient evidence supported the juvenile court’s finding that the weapon the minor used to threaten another student with was capable of temporarily immobilizing a person and, therefore, that it qualified as a stun gun within the meaning of Penal Code sections 626.10, subdivision (a) and 244.5, subdivision (a).
A160959
- October 20, 2021
- Division: Five
- Attorney: George Schraer
- Categories: Criminal, Sentencing
The Court of Appeal held that the trial court erred in adding three years for a great bodily injury enhancement because, under section 1170.1, subdivision (a), the applicable enhancement for a subordinate term is one-third the normal term, or in this case, one year.
A157670
- October 18, 2021
- Division: Four
- Attorney: Gene Vorobyov
- Categories: Criminal, Sentencing
The Court of Appeal conditionally reversed and remanded the matter for a new sentencing hearing, finding that the trial court erroneously relied on Penal Code section 667.6, subdivision (d) to impose fully consecutive terms for three sex offenses when one of the offenses (Penal Code § 288.7) did not fall within the umbrella of section 667.6, subdivision (d).
A161197
- October 18, 2021
- Division: Three
- Attorney: Joseph Shipp
- Categories: Criminal, Fines, Fees, and Victim Restitution
Pursuant to Assembly Bill No. 1869 (2019–2020 Reg. Sess., Stats. 2020, ch. 92, § 2), the Court of Appeal struck the probation investigation fee.