In an appeal from an order terminating his parental rights, father argued that the Department and juvenile court failed to sufficiently investigate and provide adequate notice as required under the ICWA. As a preliminary matter, the Court stated that father had not waived his right to appeal the order terminating parental rights by submitting to the recommendation as ICWA notice requirements could not be waived by the parent. The Court then found that the Department had not adequately discharged its duty of inquiry which hindered its ability to provide adequate notice to the tribes. The error was not harmless because it was unknown what a proper inquiry might have revealed.
Panel Victories are updated monthly.
A156531
- October 4, 2019
- Attorney: Cristina Gabrielidis
- Categories: Dependency, ICWA
A151355
- September 30, 2019
- Division: Four
- Attorney: Robert Angres
- Categories: Competency, Criminal
Pursuant to the California Supreme Court’s decision in People v. Rodas (2018) 6 Cal.5th 219, 223, the Court of Appeal found that the trial court erred in failing to suspend trial and initiate competency proceedings. During trial, defense counsel repeatedly raised concerns regarding the defendant’s competency and informed the court that the defendant had stopped taking his antipsychotic medication almost immediately after being released from the state hospital. Defense counsel also informed the court that he suspected the defendant’s symptoms had returned and they were preventing him from rationally assisting with his defense. The Court of Appeal found this was substantial evidence of changed circumstances which required another formal competency proceeding and reversed the conviction.
A148945
- September 30, 2019
- Division: Four
- Attorney: Barry Karl
- Categories: Criminal, Evidentiary, Sufficiency of the Evidence
The Court of Appeal held that the defendant’s conviction for rape by force (Penal Code § 261, subd. (a)(2)) must be stayed pursuant to section 654. The defendant was also convicted of assault with intent to commit rape during a burglary (PC § 220, subd. (b)), and, while the defendant assaulted the victim during the first degree burglary, the Court determined the assault and rape were the same single act. In order to ensure compliance with section 1326, the Court also conditionally reversed the trial court’s decision not to release the victim’s confidential medical records, which the defense subpoenaed and the trial court reviewed in camera. The original documents were purged and the Court found that a proper record had not been made during the in camera review.
A152211
- September 30, 2019
- Division: Five
- Attorney: Geoff Jones
- Categories: Criminal, Delinquency, General
On appeal, the A.G. argued that appellant had forfeited the opportunity to create a record of his characteristics in a People v. Franklin (2016) 63 Cal.4th 261 proceeding. However, the Court of Appeal found that a Franklin claim is not subject to the forfeiture doctrine and that a trial court has a sua sponte obligation to invite the parties to present evidence regarding youth-related factors before entry of judgment in cases where the defendant will be entitled to a youth offender parole hearing. The Court, therefore, remanded the case for the limited purpose of affording both parties the opportunity to make a record of information relevant to appellant’s future youth offender parole hearing.
Vacating its September 30, 2019 decision, the Court of Appeal found that appellant forfeited his opportunity for a proceeding pursuant to People v. Franklin (2016) 63 Cal.4th 261 (Franklin) at the time of sentencing, but that he may seek such a proceeding by filing a motion under Penal Code section 1203.01.1. Here, appellant was sentenced after Franklin, but his trial counsel did not submit any sentencing memoranda, documents, or testimony relevant to a future youth offender parole hearing.
A152029
- September 27, 2019
- Division: One
- Attorney: Cliff Gardner
- Categories: Criminal, Pleading and Proof, Sentencing
The trial court erred in imposing a consecutive term of 25 years to life under Penal Code section 12022.53, subdivision (d), because a subdivision (d) enhancement was never pled in the information, and the jury did not find true such an allegation. The Court of Appeal, therefore, ordered that the case be remanded so the trial court may decide whether to exercise its discretion to strike the enhancements under section 12022.53. If the trial court chooses not to strike the enhancement altogether, it must impose a determinate term of 20 years under subdivision (c).
A156764
- September 25, 2019
- Attorney: Nathaniel Miller
- Categories: Delinquency
The Court of Appeal conditionally vacated the jurisdictional and disposition orders and remanded the matter for further proceedings because the prosecutor failed to provide proper notice of the minor’s eligibility for a deferred entry of judgment under section 790 et seq. and rule 5.800 of the California Rules of Court, and the juvenile court failed to consider whether he was suitable for it.
A153257
- September 25, 2019
- Division: Four
- Attorney: Kyle Gee
- Categories: Criminal, Sentencing
Court of Appeal remanded for resentencing to permit the trial court to exercise its discretion under section 12022.53 (firearm enhancement).
A155082
- September 25, 2019
- Division: Two
- Attorney: Nathaniel Miller
- Categories: Criminal, Delinquency, Sentencing
The Court of Appeal found that insufficient evidence supported the juvenile court’s finding that the minor committed a battery against a police officer (PC sec. 242) or that he resisted arrest (PC sec. 148, subd. (a)(1)). As to the battery, the court found that the minor’s contact with the officer was incidental to his attempt to move away from the officer’s hand, and that the contact was neither willful nor harmful or offensive (two required elements of battery). As for the resisting arrest charge, the court found that the officer was not enforcing any disciplinary rules in his encounter with the minor, that the officer had only requested (not ordered) the minor to follow instructions, and that insufficient evidence supported that the minor knew or reasonably should have know that the officer was engaged in the performance of his duties when he grabbed the minor’s arm.
A154923
- September 20, 2019
- Division: Four
- Attorney: Elizabeth Grayson
- Categories: Criminal, Delinquency, Probation, Parole, PRCS, and Mandatory Supervision
[Published Opinion] Although the Court of Appeal found no abuse of discretion in the juvenile court’s decision to impose an electronic search condition, it found the condition imposed swept too broadly, and so remand for the juvenile court to consider imposing a narrower search condition.
A154498
- September 20, 2019
- Division: One
- Attorney: Richard Tamor
- Categories: Criminal, Jury Instructions, Sentencing
[Published Decision – 40 Cal.App.5th 126] Although the Court of Appeal interpreted Penal Code section 466 to prohibit a person from having burglary tools “upon him or her or in his or her possession,” the Court nevertheless reversed the defendant’s conviction for possession of burglary tools because the special jury instruction on that offense prejudicially omitted the felonious intent element. The court also agreed with the parties that the trial court erred by staying, instead of striking, one of the prior-prison-term enhancements.