The Court of Appeal remanded for resentencing in light of two amendments (Senate Bill No. 567 (2021-2022 Reg. Sess.) and Assembly Bill No. 124 (2021-2022 Reg. Sess.)) to Penal Code section 1170, which limited the court’s ability to impose a sentence exceeding the middle term and created a presumption in favor of the low term under certain circumstances.
Victories Division: Four
The Court of Appeal held that AB 333, which became effective while appellant’s appeal was pending and, among other things, amends the substantive elements of a gang enhancement (Pen. Code, §§ 186.22(b) & 12022.53(e)(1)), applies retroactively. The Court further held that the true findings on the gang and gang-related gun enhancements must be vacated and remanded for retrial because the jury did not make the factual findings required under the amended statute.
The Court of Appeal held that the trial court did not have a sufficient basis to toll appellant’s PRCS because he had not “absconded” from supervision (Pen. Code, § 3456(b)), but rather was incarcerated during the tolling periods. The Court, therefore, reversed the trial court’s order extending appellant’s PRCS and, since appellant’s three-years PRCS term had expired, directed the trial court to enter an order terminating it.
[Published Opinion] Defendant was convicted of assault with force likely to cause great bodily injury (Pen. Code, § 245 (a)(4)) after the trial court, over defense objection, instructed the jury that this was a lesser included offense of the charged offense of assault with a deadly weapon (Pen. Code, § 245 (a)(1)). The Court of Appeal reversed the conviction, finding that, under both the elements test and the accusatory pleading test, assault with force likely was not a lesser included offense. The court further found that, assuming the “material variance” test also applies, “the variance between the accusatory pleading and [the] conviction was material and prejudicial.”
The Court of Appeal held that Assembly Bill 333 applies retroactively to gang enhancements imposed under Penal Code section 187, subdivision (a) insofar as it amends the substantive elements of the enhancement so that the true finding on the enhancement must be vacated and remanded for retrial.
The Court of Appeal struck the two 5-year sentence enhancements imposed under Penal Code section 667, subdivision (a) because they were not pled in the first amended complaint.
In an appeal from jurisdiction/disposition, the Court found the juvenile court failed to ensure the Agency fulfilled its duty of inquiry under the ICWA and there was not substantial evidence supporting the court’s finding the ICWA did not apply. The matter was conditionally reversed for compliance with the ICWA.
The Court of Appeal found the probation condition that prohibited appellant from possessing sexually explicit images was unconstitutionally vague and overbroad. The court, therefore, modified the condition to add a knowledge requirement and apply to “materials that . . . have the primary purpose of causing sexual arousal.” The Court also remanded the case to the juvenile court with directions to specify the maximum term of confinement for appellant and credit against that term of confinement the time appellant spent in custody before the dispositional hearing.
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.
The Court of Appeal remanded for resentencing in light of recent amendments (Senate Bill No. 567 (2021-2022 Reg. Sess.) to Penal Code section 1170, which limited the court’s ability to impose a sentence exceeding the middle term and created 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.