The Court of Appeal found that the trial court lacked jurisdiction to conduct a resentencing hearing while appellant’s petition for review was pending in the California Supreme Court and improperly denied counsel’s request that appellant be present for the resentencing hearing. The AG conceded that the court erred in both respects.
**Between March and November 2024, there were many important unpublished panel victories in the First District. Unfortunately, we were not able to update our First District victories page during that time. Even though the victories are not on the website, we appreciate all of the hard work done by the panel and continued dedication to our clients.**
A155792
- August 29, 2019
- Division: Four
- Attorney: Janice Wellborn
- Categories: Criminal, General, Sentencing
A153155
- August 28, 2019
- Division: Five
- Attorney: William Capriola
- Categories: Criminal, Sentencing
Because the trial court imposed a concurrent determinate term on count 2 (assault with intent to commit a sex offense – Penal Code section 220, subd. (a)(1)), the Court of Appeal found the enhancement attendant to that conviction must also run concurrently. The Court further remanded the matter for the trial court to exercise its discretion to impose or strike a single prior prison term enhancement. In doing so, the Court found appellant had only served one prior prison term under Penal Code section 667.5 (as opposed to the seven alleged in the information) because all of appellant’s prior convictions were served in one continuous prison term.
A154480
- August 28, 2019
- Division: Two
- Attorney: David Thompson
- Categories: Criminal, Fines, Fees, and Victim Restitution, Sentencing
Because the prosecution produced no evidence that appellant harbored more than one objective, Penal Code section 654 precluded punishment for both depositing a hazardous substance and vandalism. The Court of Appeal, therefore, stayed the eight-month consecutive sentence imposed on appellant for depositing a hazardous substance. The Court further remanded the matter for the trial court to amend the abstract of judgment and specify the bases for the assessments imposed on appellant.
A155022
- August 28, 2019
- Division: Four
- Attorney: Bobbie Stein
- Categories: Criminal, Sentencing
The Court of Appeal remanded to the trial court with directions to consider whether to exercise its discretion to strike appellant’s five-year prior serious felony enhancement under Penal Code section 667, subdivision (a)(1).
A153536
- August 28, 2019
- Division: Two
- Attorney: James Donnelly-Saalfield
- Categories: Criminal, Retroactivity of Changes in Law
The Court of Appeal found that the mental health diversion statute (Penal Code section 1001.36) to be retroactive under Estrada, conditionally reversed the judgment, and remanded for a diversion eligibility hearing. In so ruling, Div. 2 rejected the position of the AG that a remand would be futile.
A155863
- August 28, 2019
- Attorney: Mara Bernstein
- Categories: Dependency, General
In this appeal by mother from a status review hearing, the Court of Appeal agreed that the juvenile court erred by granting the request of the de facto parents for disclosure of confidential juvenile case file documents without requiring compliance with WIC section 827 and Rule 5.552.
A153973
- August 28, 2019
- Division: One
- Attorney: James Donnelly-Saalfield
- Categories: Criminal, Discovery
The Court of Appeal fully reversed the judgment, finding the trial court prejudicially erred in denying a new trial motion based on the failure of the prosecutor to disclose – per Brady – information about the credibility (or lack thereof) of a police officer who was the primary witness of the state. The Court of Appeal sided with appellant, rejecting the argument that the state did not withhold evidence and that the evidence in question was not material.
A153623
- August 26, 2019
- Division: Four
- Attorney: Jonathan Roberts
- Categories: Criminal, Fines, Fees, and Victim Restitution, Sentencing
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.
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.