In a juvenile writ proceeding, the court found that the Agency’s failure to comply with its duty of inquiry under WIC 224.2(b) was not harmless error under the In re Benjamin M. standard. The Agency was not relieved of its duty “simply, because in its view, there is little likelihood that the children have Indian ancestry based on the parents’ representations that they came from Honduras.” Since the court’s orders did not terminate parental rights, the appropriate remedy was a limited remand for ICWA compliance.
A167410
- June 15, 2023
- Division: One
- Attorney: Carol Koenig
- Categories: Dependency, ICWA
A163864
- June 14, 2023
- Division: Five
- Attorney: Audrey Chavez
- Categories: Criminal, Sufficiency of the Evidence
The Court of Appeal held that insufficient evidence supported appellant’s conviction for dissuading a witness (PC 136.1(b)(2)) because the plain language of the statute does not encompass attempts to dissuade a victim or witness after a charging document has been filed, which is what the evidence showed occurred here.
A165101
- June 14, 2023
- Attorney: Maggie Shrout
The Court of Appeal held that appellant was entitled to a new sentencing hearing because the trial court imposed an upper term sentence based on aggravating factors that were not found true by a jury or stipulated to by appellant. In so doing, the Court rejected the A.G. argument that the issue had been forfeited because, while trial counsel’s failure to object forfeited appellant’s statutory claim of error, it did not forfeit his Sixth Amendment right to a jury trial.
A163761
- June 14, 2023
- Attorney: Peter Goldscheider
- Categories: Criminal, Sufficiency of the Evidence
The Court of Appeal found insufficient evidence that defendant’s movement of the victim from a public restroom’s small stall to its large stall “substantially increased the risk of harm to the victim over and above that level of risk necessarily inherent in the underlying offense,” as required by the asportation element of the One Strike law’s aggravated kidnapping circumstance (PC 667.61(d)(2)). The court reduced defendant’s sentence from 25 years to life under the aggravated kidnapping circumstance to 15 years to life under the simple kidnapping circumstance (PC 667.61(e)(1)).
A166037
- June 12, 2023
- Division: Two
- Attorney: Deborah Dentler
- Categories: Dependency, Petitions to Modify (Section 388)
The Court found the juvenile court erred when it denied father’s request for an evidentiary hearing on his WIC 388 petition challenging the termination of reunification services. The Court noted that the circumstances of the case were unusual as the entire proceeding took place during the pandemic, father was incarcerated in three different facilities, and was represented by multiple attorneys who had difficulty contacting him. The matter was remanded with directions to promptly schedule an evidentiary hearing on the merits of father’s WIC 388 petition.
A164685
- June 6, 2023
- Division: One
- Attorney: Anna Stuart
- Categories: Dependency, ICWA
In this appeal from the termination of parental rights, the Court agreed that the Agency failed to comply with its duty of initial inquiry under ICWA once the minor’s biological father was identified. The Agency should have at least required father to fill out the ICWA-020 form and should have questioned father’s relatives for whom it had or could readily obtain contact information. The failure to do so was prejudicial.
A164999
- June 2, 2023
- Division: Three
- Attorney: Robert Angres
- Categories: Criminal, Sentencing
The Court of Appeal remanded the matter to correct various sentencing errors, including that (1) section 654 precluded imposing multiple punishment for attempted murder and aggravated mayhem because both were based on shooting the victim; (2) the consecutive term for a PC section 12022.7(a) enhancement should be one year, not three years; (3) the base term sentence for aggravated mayhem should be 14 years to life, rather than 25 years to life; and (3) the section 12022.5 enhancement for burglary should be 1 year, 4 months, rather than 2 years, 8 months
A164874
- May 31, 2023
- Division: One
- Attorney: Joseph Elford
- Categories: Credits, Criminal
In this case, appellant appealed the denial of custody credits for the time he spent in a residential drug treatment as a condition of pretrial release. However, the record on appeal does not establish whether the program was “custodial,” so the Court of Appeal remanded for the trial court to determine if appellant is entitled to those credits for the time spent in those programs.
A163804
- May 31, 2023
- Division: One
- Attorney: Paul Kleven
- Categories: Criminal, Retroactivity of Changes in Law
In light of recent amendments to PC 1001.36 (mental health diversion), including a rebuttable presumption that a defendant’s diagnosed mental health disorder was a significant factor in the commission of the offense, the Court of Appeal remanded the matter so that the trial court may determine appellant’s eligibility based on the amended statute.
A152028
- May 30, 2023
- Division: Four
- Attorney: Barry Karl & Athena Shudde
- Categories: Criminal, Jury Instructions, Retroactivity of Changes in Law
In this consolidated appeal, the Court of Appeal held that the trial court erred by instructing the jury on CALCRIM No. 417 (liability for acts of coconspirators), which allowed a murder conviction as the natural and probable consequence of an uncharged drug conspiracy (without proof of malice), and that the error was not harmless beyond a reasonable doubt. The Court further held that the gang enhancements must be reversed because the instructions at trial did not comport with the new requirements of PC 186.22; none of the predicate offenses occurred “within three years of the date the current offense is alleged to have been committed,” and the jury was permitted to rely on the charged offenses in determining whether a pattern of criminal gang activity had been proven.