In light of People v. Strong (2022) 13 Cal.5th 698, the Court of Appeal reversed the denial of appellant’s petition for resentencing under Penal Code section 1172.6 because the denial was based on the jury finding that the killing underlying appellant’s conviction was committed while appellant was engaged in the commission of a felony, but the verdict in appellant’s case was rendered years before the Supreme Court clarified the law of felony murder liability in People v. Banks (2015) 61 Cal.4th 788 (Banks) and People v. Clark (2016) 63 Cal.4th 522.

The Court found the Department failed to make the required ICWA inquiry of family members, including the grandmother who the Department had been in contact with from the outset of the dependency. In addition, the notices sent to the tribes were deficient because they did not include information about paternal relatives. The order terminating mother’s parental rights was conditionally reversed and remanded for compliance with the ICWA.

The Court of Appeal agreed with father that the juvenile court’s order granting mother joint legal custody was in error. The court found the order was not based on evidence but on off-the-record discussions and unsworn statements of mother’s counsel regarding mother’s sobriety. The court reversed the joint legal custody order and remanded the matter for a new WIC 364 hearing.

In light of Assembly Bill No. 1869, which eliminated certain fees in criminal cases and rendered the unpaid balance of any such fees unenforceable and uncollectible, the Court directed the trial court to vacate the fee for probation’s presentence report (Pen. Code, § 1203.1(b)). The Court further held that remand was necessary in light of recent amendments (Senate Bill No. 567 (2021-2022 Reg. Sess.) to Penal Code section 1170, which limits the court’s ability to impose a sentence exceeding the middle term and creates a presumption in favor of the low term where the defendant experienced psychological, physical, or childhood trauma and those factors contributed to the commission of the offense.

In light of Assembly Bill No. 1869 (2019–2020 Reg. Sess.), which eliminated certain fees in criminal cases and rendered the unpaid balance of any such fees unenforceable and uncollectible, the Court of Appeal vacated the probation report fee (Pen. Code, § 1203.1b). The Court further held that the trial court erred by failing to calculate appellant’s custody credits prior to resentencing him.

In light of Assembly Bill No. 177, which eliminated a range of administrative fees agencies and courts were authorized to impose and any outstanding debt incurred as a result of such fees, the Court of Appeal vacated the 10 percent collection fee to cover the administrative cots of collecting the restitution fine.

In an appeal from the termination of parental rights, the Court agreed with mother and found the Agency failed to make a proper inquiry of extended family members regarding the child’s possible Indian ancestry and the juvenile court failed to ensure the Agency’s compliance with its duty of inquiry. The court’s ICWA finding was therefore erroneous and the matter was conditionally reversed and remanded for ICWA compliance.

In accordance with People v. Tirado (2022) 12 Cal.5th 688, which held that a court could strike a greater firearm enhancement under Penal Code section 12022.53, subdivision (d) and impose a lesser uncharged enhancement instead, the Court of Appeal held that the trial court erred when it denied appellant’s request to strike or reduce his firearm enhancement based on the erroneous belief that it lacked authority to impose a lesser included enhancement in its place. The Court further held that, in light of Assembly Bill No. 333 (2021–2022 Reg. Sess.), which “raised the bar of proof for the gang offense and gang enhancement in several ways,” appellant’s gang offense conviction (Pen. Code, § 186.22, subd. (a)) and true gang enhancement finding (Pen. Code, § 186.22, subd. (b)) must be vacated. Upon remand, the Court noted that the prosecution may elect to retry appellant under the new law established by AB 333.

In light of Assembly Bill No. 1869, which eliminated certain fees in criminal cases and rendered the unpaid balance of any such fees unenforceable and uncollectible, the Court of Appeal vacated the criminal justice administrative fee (former Government Code, § 29550, subd. (c)).   

In a case in which appellant was convicted of numerous sexual crimes, the Court of Appeal held that evidence supporting appellant’s defense – that he instigated a CPS investigation into the victim’s sexual abuse during the time the victim alleged appellant was sexually abusing her – was improperly excluded. The Court noted that the CPS investigation was “potentially powerful evidence” in support of the defense that the victim fabricated the abuse because a jury could reasonably believe that a person who was sexually abusing a child would be unlikely to encourage a CPS investigation. Also, since the victim reported sexual abuse during this investigation (not by appellant), the evidence showed the victim was willing and able to report abuse, potentially lending greater significance to the victim’s failure to report appellant’s alleged sexual abuse during subsequent CPS investigations.

^