The Court of Appeal reversed the denial of appellant’s petition for resentencing under Proposition 36, finding that the trial court erred in holding that a conviction for being a felon in possession of a firearm is equivalent to being armed with a firearm, which would be a Proposition 36 disqualifier. The Court of Appeal agreed with “every court to consider the issue” that a felon who possesses a firearm is “armed” only if he has the firearm available for offensive or defensive use. The court further noted that the people bear the burden of proving a defendant is disqualified based on 1170.126, subd. (e) factors. (People v. Frierson (2017) 4 Cal.5th 225.)
A143933
- February 15, 2018
- Division: Four
- Attorney: Robert Bryzman
- Categories: Criminal, Sentencing
A148242
- February 9, 2018
- Division: Five
- Attorney: Jeremy Price
- Categories: Credits, Criminal, Probation, Parole, PRCS, and Mandatory Supervision
After reducing one of multiple felonies to a misdemeanor pursuant at a Proposition 47 resentencing, custody credits exceeded the newly imposed term of imprisonment. The trial court applied the excess credits to reduce his period of postrelease community supervision (PRCS). In a published decision, the Court construed language recently added to Penal Code section 1170(a)(3) to provide that excess custody credits apply to reduce a period of PRCS. Three prior published decisions had reached the opposite conclusion in the Proposition 36 context.
A151275
- January 29, 2018
- Division: One
- Attorney: Mara Bernstein
- Categories: Dependency, Disposition, ICWA
Mother appealed from the juvenile court’s dispositional order changing the child’s placement, reducing mother’s visitation, and deficiencies in ICWA notice and inquiry. The Court of Appeal reversed the visitation order finding that mother was not given notice that a change in the visitation was sought. The Court agreed that mother’s due process rights were abrogated by the failure to provide her with notice of the request and an opportunity to present evidence and cross-examine witnesses. The Court also remanded for the Department to comply with notice provisions of the ICWA.
A151051
- January 19, 2018
- Division: Two
- Attorney: Patricia Saucier
- Categories: Dependency, Jurisdiction
Mother appealed the juvenile court’s decision removing her two children from her custody, awarding sole custody to their previously noncustodial father, and terminating jurisdiction. Finding a lack of evidence in the record concerning the father’s circumstances and the juvenile court’s failure to explain its decision to immediately terminate jurisdiction, the Court of Appeal reversed and remanded the matter for further proceedings. The Court stated that father’s desire to assume custody, the children’s young age, or the fact that father had cared for one of the children on his own for perhaps two months, was not sufficient to show that continued supervision was unnecessary. The juvenile court may not terminate jurisdiction until it analyzed whether ongoing supervision of the child was necessary.
A151463
- January 18, 2018
- Division: Three
- Attorney: Amy Seff
- Categories: Dependency, Disposition
Mother appealed from the dispositional order removing her four daughters from her custody and ordering supervised visitation. Mother had requested that the children be returned to her care with family maintenance services, or in the alternative, increased visitation. The Court of Appeal found that the evidence before the court provided absolutely no basis for a finding, much less a finding based on clear and convincing evidence, that there was a substantial risk of harm to the children if returned to their home, or that there were no reasonable means of protecting them without removal. The children may not be removed from their home because the Bureau was “curious” how the relationship between mother and father would play out or for an observation period to test the Department’s speculation.
A150346
- September 7, 2017
- Division: One
- Attorney: Jacob Olson
- Categories: Dependency, Permanency Planning (Section 366.26)
Mother appealed from the denial of her section 388 petition for modification and the termination of her parental rights. The Court of Appeal reversed the juvenile court’s order terminating mother’s parental rights and identifying adoption with paternal grandparents in Denmark as the permanent plan for the minor. The Court agreed with mother that she had established the applicability of the beneficial-relationship exception under WIC 366.26, subd. (c)(1)(B)(i). The Court found that due to the undisputed strong bond between mother and the minor, an exceptional situation existed which overcame the Legislature’s preference for adoption. The Court stated that in light of its conclusion that the juvenile court erred in terminating mother’s parental rights, it would be appropriate to remand the entire case so the court could take into consideration any new evidence or changed circumstances so that it may consider the current best interests of the minor.
A147219
- July 17, 2017
- Division: Three
- Attorney: Mark D. Johnson
- Categories: Criminal, Fines, Fees, and Victim Restitution
Court of Appeal reversed order for defendant to pay $250 for defense costs for representation. The defendant himself objected to the fee and Court found that the record was insufficient to support a finding of ability to pay where the defendant was sentenced to two years in prison.
A145857
- July 5, 2017
- Division: Four
- Attorney: Donald Bergerson, Peggy Headley
- Categories: Criminal, Fourth Amendment, Pleading and Proof
Court of Appeal reversed misdemeanor conviction for recent use of a controlled substance where it was barred by one year statute of limitations and reversed all fines and fees associated with that count.
A148171
- February 2, 2017
- Attorney: Mara Bernstein
- Categories: Dependency, ICWA, Review Hearings
[Published Decision – 9 Cal.App.5th 339] Father appealed from the juvenile court’s findings at the six-month review hearing. The Court of Appeal agreed stating father’s out-of-state location and lack of participation did not excuse the Department’s failure to provide reasonable services. In addition, the Department failed to make the required active efforts under the ICWA to prevent the breakup of the Indian family.
A159539
- Division: One
- Attorney: Candace Hale
- Categories: Criminal, Sentencing
The Court of Appeal remanded for resentencing due to the recent statutory amendment to Penal Code section 654, which now affords trial courts the discretion to choose the count on which to impose punishment (instead of having to choose the one that provided for the longest potential term of imprisonment). The court further found that appellant’s kidnapping to commit rape and forcible rape punish the same act and, therefore, stayed the execution of sentence for the former offense.