Appellant was entitled to resentencing because the recent amendments to Health and Safety Code section 11370.2 abolished sentence enhancements predicated on violations of certain drug statues, including those forming the basis of appellant’s two sentence enhancements. His convictions were not final and the amendment is retroactive; thus, the Court remanded the case for resentencing in light of it striking the enhancements.
Panel Victories are updated monthly.
A146509
- December 18, 2018
- Division: Four
- Attorney: Jeffrey Kross
- Categories: Criminal, Retroactivity of Changes in Law, Sentencing
A149862
- December 14, 2018
- Division: Three
- Attorney: William Lee
- Categories: Criminal, Sentencing
Remand based on trial court’s belief that it lacked the discretion to suspend imposition of the sentence pursuant to Penal Code section 1170, sub. (h)(3). Misunderstanding warranted reversal because the record did not clearly indicate the trial court would not have exercised its discretion differently if it believed it could do so.
A150584
- December 14, 2018
- Division: One
- Attorney: Gordon Brownell
- Categories: Criminal, Sentencing
Remand to 1) correct sentencing error, which was imposition of full, consecutive sentence instead of 1/3 the mid-term as a subordinate term in violation of PC 1170.1 and 2) allow court to exercise discretion to strike gun-use and serious prior felony enhancements.
A150858
- December 14, 2018
- Division: Two
- Attorney: Michael Allen
- Categories: Criminal, Sentencing
The Court of Appeal remanded the matter to allow the trial court to exercise its discretion to strike the gun use and prior serious felony enhancements (Penal Code, §§ 12022.53, 667(a)). In so doing, the Court of Appeal found that the trial court comments about hypothetical discretion does not necessarily indicate what the trial court would do in an actual exercise of discretion.
A153761
- December 14, 2018
- Attorney: Aida Aslanian
- Categories: Dependency, Petitions to Modify (Section 388)
The Court of Appeal found the juvenile court abused its discretion in denying maternal grandmother’s section 388 petition for modification. The Court remanded the matter for a hearing on the merits of the petition and directed the juvenile court to appoint counsel to represent maternal grandmother in those proceedings.
A153211
- December 13, 2018
- Attorney: Joe Tavano
- Categories: Dependency, ICWA
In this appeal from the termination of parental rights, father raised the beneficial relationship exception and ICWA violations. The Court of Appeal found that the adequacy of the ICWA investigation was uncertain and the record failed to show the juvenile court ruled on the ICWA issue. The matter was remanded to the juvenile court for ICWA compliance.
A129664
- December 12, 2018
- Division: Four
- Attorney: Clifford Gardner
- Categories: Criminal, Sentencing
Court of Appeal remanded the matter to the trial court to exercise its discretion under SB 620, amended Penal Code section 12022.53, subdivision (h), whether to strike gun-use enhancement.
A153896
- December 12, 2018
- Attorney: Liana Serobian
- Categories: Dependency, Permanency Planning (Section 366.26)
In this published opinion, the Court of Appeal reversed the order terminating parental rights and remanded the case to the juvenile court to consider an appropriate long term plan for the children. The Court stated that the standard for the beneficial relationship exception to adoption was whether the children benefit from the presence of the parent in their lives, not whether they could eventually be happy without her. The Court noted that parental rights could not be terminated based on an unenforceable expectation that the prospective adoptive parents would voluntarily permit future contact.
A147669
- December 12, 2018
- Division: Three
- Attorney: Cynthia Jones
- Categories: Criminal, Sentencing
Remand to trial court to determine whether to strike a five-year enhancement under Penal Code section 667, subdivision (a)(1) authorized by a recently enacted amendment to Penal Code section 1385, subdivision (b).
A150790
- December 12, 2018
- Division: Two
- Attorney: Ozro Childs
- Categories: Criminal, Sufficiency of the Evidence
The Court of Appeal modified the judgment from first degree murder to second degree murder after concluding the circumstantial evidence regarding the manner of killing in this case did not furnish a reasonable foundation for an inference of premeditation and deliberation, and therefore did not overcome the presumption that the killing constitutes murder of the second, rather than the first, degree. Also, per SB 620, the court ordered the trial court to exercise its discretion in deciding whether to strike or dismiss a firearm enhancement (PC 12022.53.)