In an appeal from the denial of a petition for resentencing under Penal Code section 1172.6, the Court of Appeal found that the trial court considered hearsay evidence – including the out-of-court statements of non-testifying coparticipants identifying appellant as the shooter – that is now inadmissible post-S.B. 775. Therefore, the court remanded the matter for the trial court to conduct another evidentiary hearing in accordance with the current evidentiary standards of section 1172.6.

[Published Opinion] Penal Code section 1172.75 (the SB 483 resentencing provision for prior-prison-term enhancements) provides that a court conducting a resentencing under the statute “shall apply . . . any . . . changes in law that reduce sentences or provide for judicial discretion so as to eliminate disparity of sentences and to promote uniformity of sentencing.” The Court of Appeal held that this language requires a court conducting a resentencing under Penal Code section 1172.75 to apply SB 620 and SB 1393, including where the defendant’s original judgment of conviction became final prior to those bills’ effective dates.

The Court of Appeal held that appellant’s admission to two prior strike convictions was invalid because the record does not reflect that appellant was informed of or expressly waived his constitutional rights to trial by jury and confrontation, and his privilege not to incriminate himself. The Court therefore vacated the judgment and remanded for correction of that error.

The Court of Appeal remanded for resentencing, once again, in light of recent amendments (Senate Bill No. 567 (2021-2022 Reg. Sess.)) to Penal Code section 1170, which, among other things, created a presumption in favor of a low prison term for certain youthful offenders.

The Court of Appeal held that the trial court gave an erroneous kill zone instruction because it did not require the jury to find, as is required for application of the kill zone theory, that appellant intended to kill everyone in the area around the primary target as a means of killing that primary target. Nor did the instruction enumerate the circumstances the jury should consider in assess a defendant’s intent to create a zone of fatal harm and the scope of that zone. The court further held that the error was prejudicial even under the less stringent Watson standard, and that one of appellant’s attempted murder convictions must be vacated as a result.  

Finding that the term “dangerous drugs” was unconstitutionally vague, the Court of Appeal replaced that term with “controlled substances” in the probation condition that ordered appellant “not to use, own, possess, or traffic in narcotics or dangerous drugs or knowingly associate with anyone who does.” The court also held that the probation condition requiring appellant to “submit to education, counseling, treatments or test as directed by [his] probation officer” violated the separation of powers doctrine by delegating judicial authority to the probation department; thus, the court struck the condition and remanded the matter. Finally, the court held that appellant did not need a certificate of probable cause to challenge any of his probation conditions, although his plea form included a general appeal waiver from his conviction.

[Published Opinion] In an appeal following resentencing, the Court of Appeal found that the trial court abused its discretion by denying the defense a reasonable continuance in order to develop facts in support of a discovery motion under the Racial Justice Act (Pen. Code, § 745).

[Published Opinion] In a habeas proceeding, the Court of Appeal held that the Parole Board’s denial of petitioner’s request to present witnesses at his parole rescission hearing violated the Board’s own procedural rules as well as petitioner’s due process rights. The court further found that the matter is not moot, despite petitioner having had two further parole suitability hearings, and that petitioner did not forfeit his due process challenge by failing to object at the rescission hearing to the denial of his request to present witnesses.

The Court of Appeal remanded for the trial court to consider resentencing under Penal Code section 654 in light of Assembly Bill 518, and to strike the fees imposed for preparation of appellant’s probation report and booking pursuant to Penal Code section 1465.9.

The Court of Appeal held that the firearm use enhancement (Pen. Code, § 2022.5(a)) attached to appellant’s conviction for shooting at an occupied vehicle must be stricken because firearm use is an element of the offense.

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