2016

SENTENCING MANUAL

Gary M. MandinachCalifornia Appellate Project

California Appellate Project520 S. Grand Ave., 4th FloorLos Angeles, Calif. 90071(213) 243-0300

TABLE OF CONTENTSPage

I. APPRENDI, BLAKELY, BOOKER, BLACK, CUNNINGHAM.. . . . . . . . . . . . . . . . 1

II. CONSECUTIVE V. CONCURRENT SENTENCING. . . . . . . . . . . . . . . . . . . . . . . . 20

III. CRUEL AND UNUSUAL PUNISHMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

IV. CRC COMMITMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45

V. CREDITS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47A. NO APPRENDI ON CREDIT LIMITATION UNDER 2933.1. . . . . . . . . . . . . . 47B. 2933.5 CREDITS (OR NOT).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47C. 2933.1 LIMITATIONS FOR VIOLENT AND NON-VIOLENT OFFENSES. . . 47D. PRESENTENCE CREDITS PER 2933.2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51E. CREDITS ON PROBATION CASES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51F. WAIVER ISSUES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53G. CUSTODY CREDITS WITHIN THE MEANING OF SECTION 2900.5 ARE

AWARDED FROM THE TIME THE DEFENDANT IS OFFICIALLY BOOKEDINTO CUSTODY. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55

H. PRESENTENCE CREDITS WITH AN EXISTING INSANITY COMMITMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55

I. HOME ELECTRONIC MONITORING CUSTODY CREDITS. . . . . . . . . . . . . 56J. WHEN EITHER OR BOTH THE PROSECUTION AND THE COURT

MISINFORMED THE DEFENDANT REGARDING HIS ELIGIBILITY FORGOOD BEHAVIOR CREDITS, TELLING HIM HE WOULD RECEIVE 15%RATHER THAN 50% HE WAS ENTITLED TO, HIS DUE PROCESS RIGHTSWERE VIOLATED, AND THEREFORE, THE CONVICTIONS AREREVERSED.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57

K. CRUZ WAIVER AND VARGAS WAIVER. . . . . . . . . . . . . . . . . . . . . . . . . . . . 57L. HEROIC ACT STATUTE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58M. SECTION 4019 AND 2900.5 CREDITS; PRESENTENCE CREDITS. . . . . . . . 58

VI. ENHANCEMENTS AND PENALTY PROVISIONS. . . . . . . . . . . . . . . . . . . . . . . . . 69A. DISCRETION/1385 TO STRIKE THE ENHANCEMENT. . . . . . . . . . . . . . . . . 69

B. TO STAY OR TO STRIKE AN ENHANCEMENT.. . . . . . . . . . . . . . . . 72C. GANG ENHANCEMENTS SECTION 186.22 AND RELATED ISSUES

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73D. GREAT BODILY INJURY ENHANCEMENT UNDER SECTION 12022.7,

SUBDIVISION (D) IS NOT MORE SPECIFIC THAN 12022.95, AND EITHERCAN BE PLED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89

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E. GROUP BEATING CAN LEAD TO A FINDING OF A SERIOUS FELONYWITHIN THE MEANING OF SECTION 1192.7, SUBDIVISION (C)(8). . . . . 89

F. HEALTH AND SAFETY CODE SECTION 11353.6 WITHIN SCHOOL ZONE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90

G. SERIOUS FELONIES UNDER SECTION 667, SUBDIVISION (a)(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90

H. PRISON PRIOR ENHANCEMENTS 667.5, SUBDIVISION (b). . . . . . . . . . . . 91I. STAY THE SHORTER SENTENCE, INCLUDING ENHANCEMENTS. . . . . 93J. HEALTH AND SAFETY CODE SECTION 11353.6 WITHIN SCHOOL ZONE

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94K. SECTION 12022, SUBDIVISION (c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95L. SECTION 12022.5 USE V. ARMED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96M. SECTION 12022.53.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97N. SECTION 12022.55 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103O. SECTION 12022.6.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104P. SECTION 1192.7, SUBDIVISION (c)(37). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105Q. PENAL CODE SECTION 12022.7, SUBDIVISION (a). . . . . . . . . . . . . . . . . . 105R. PENAL CODE SECTION 12022.7, SUBDIVISION (b). . . . . . . . . . . . . . . . . . 110S. HEALTH AND SAFETY CODE SECTION 11370.2, SUBDIVISION (a)

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 110T. HEALTH AND SAFETY CODE SECTIONS 11370.4 (WEIGHT) AND 11372.5,

SUBDIVISION (A) (LAB FEE). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 111U. MONEY LAUNDERING ENHANCEMENT SECTION 186.10.. . . . . . . . . . . 112V. BIFURCATION ISSUES.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 112W. SECTION 20001, SUBDIVISION (C). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 113X. SECTION 213, SUBDIVISION (a)(1)(A) IS AN IN CONCERT

ENHANCEMENT AND NOT A SENTENCING FACTOR. . . . . . . . . . . . . . . 114Y. A PENALTY PROVISION OR AN ENHANCEMENT CAN BE RETRIED

AFTER A HUNG JURY, BY ITSELF, AND NOT WITH THE UNDERLYINGSUBSTANTIVE OFFENSE AND IS NOT BARRED BY THE FEDERALDOUBLE JEOPARDY CLAUSE OR PENAL CODE SECTION 1023. . . . . . 115

Z. A GRANT OF A MOTION FOR A NEW TRIAL BASED ON A PENALTYALLEGATION/FACTOR IS NOT BARRED BY THE FEDERAL DOUBLEJEOPARDY CLAUSE OR PENAL CODE SECTION 1023. . . . . . . . . . . . . . . 116

AA. THE SUBSTANTIVE COUNT ALONE AND NOT THE ENHANCEMENTDETERMINES WHETHER THE PRINCIPAL COUNT IS DETERMINATE ORINDETERMINATE AND IF THE SUBORDINATE COUNT IS FULL TERMOR ONE-THIRD THE MIDDLE TERM. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 116

BB. MISDEMEANOR BRANDISHING BECOMES A FELONY WHENCOMBINED WITH A HATE CRIME AND CAN BE ELEVATED TO ASERIOUS FELONY, CONSTITUTING A STRIKE WHEN A DANGEROUSOR DEADLY WEAPON IS USED WITHOUT VIOLATING THE RULEAGAINST BOOTSTRAPPING.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117

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CC. MISDEMEANOR DUI BECOMES A FELONY WHEN THERE IS A PRIORDUI MANSLAUGHTER CONVICTION WITHOUT VIOLATING THE RULEAGAINST BOOTSTRAPPING.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117

DD. PRIOR PRISON TERMS UNDER SECTION 667.5, SUBDIVISION (a). . . . . 118EE. SUBSTITUTION OF UNCHARGED ENHANCEMENT WHEN THE

CHARGED ENHANCEMENT BECOMES INAPPLICABLE ORUNSUPPORTABLE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 118

7. PROVING A PRIOR WITH AN ADOPTIVE ADMISSION. . . . . . . . . . . . . . . . . . 118

8. IS AN ASSAULT WITH A DEADLY WEAPON A PRIOR?.. . . . . . . . . . . . . . . . . 119

9. JURY TRIAL ON OUT OF STATE PRIORS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 119

10. FEDERAL AND STATE DOUBLE JEOPARDY AND RELATED ISSUES. . . . . 121

11. EQUAL PROTECTION; REALIGNMENT; 1170, SUBDIVISION (h). . . . . . . . . 146

12. DOES THE RECORD ESTABLISH THAT THE PRIOR WAS A STRIKE IF ITCAN BE COMMITTED IN MULTIPLE WAYS.. . . . . . . . . . . . . . . . . . . . . . . . . . . 153

13. PROBATION ISSUES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 154A. DIRECT FILING ON A MINOR; PROBATION REPORT NEEDED. . . . . . . 154B. HARVEY WAIVER. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 154C. PROBATION ELIGIBILITY.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 155D. WOBBLER REDUCED TO A MISDEMEANOR; SECTION 17, SUBDIVISION

(B); STRAIGHT FELONY CANNOT BE REDUCED. . . . . . . . . . . . . . . . . . . 157E. ERRORS IN PROBATION REPORT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 160F. RESTITUTION PAYMENTS, PROBATION, ACQUITTED OF OFFENSE

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 160G. DIRECT RESTITUTION, A VICTIM OR NOT.. . . . . . . . . . . . . . . . . . . . . . . . 161H. DOES THE IMPOSITION OF A RESTITUTION FINE VIOLATE A

DEFENDANT’S PLEA AGREEMENT IF NOT EXPRESSED IN THEAGREEMENT?. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 164

I. AGGREGATION OF RESTITUTION FINE PER CASE, NOT PERSENTENCING AND COURT SECURITY FEE ISSUES. . . . . . . . . . . . . . . . . 164

J. EXTENSION REVOCATION OF THE PROBATIONARY PERIOD ORPAYMENT AS A CIVIL REMEDY IF PROBATION TERMINATED. . . . . . 165

K. PROBATION REVOCATION PROCEEDINGS. . . . . . . . . . . . . . . . . . . . . . . . 166L. PROBATION DENIAL UNDER SECTION 1203.066.. . . . . . . . . . . . . . . . . . . 167M. DEFERRED ENTRY OF JUDGMENT SECTION 1000. . . . . . . . . . . . . . . . . . 168N. PROTECTIVE ORDER IMPROPER BUT STAY AWAY ORDER AS A

CONDITION OF PROBATION IS VALID. . . . . . . . . . . . . . . . . . . . . . . . . . . . 169

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O. NEW PROBATION REPORT ISSUES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 169P. DOMESTIC VIOLENCE COUNSELING IS MANDATED AND IS NOT

DISCRETIONARY WHEN SECTION 1203.097 IS REQUIRED. . . . . . . . . . . 169Q. THE COURT CAN IMPOSE PROBATION RESTRICTIONS ON A

DEFENDANT’S USE OF MEDICAL MARIJUANA. . . . . . . . . . . . . . . . . . . . 169R. THE COURT CAN RESTRICT INTERNET USE IF THE CONDITIONS ARE

NOT VAGUE OR OVERBROAD. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 170S. THE COURT CAN IMPOSE RESTITUTION AFTER THE DEFENDANT HAS

COMPLETED PROBATION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 170

14. PLEA BARGAIN CONTRACTS.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 171A. PLEA BARGAIN AS A CONTRACT. . . . . . . . . . . . . . . . . . . . . . . . . . 171B. DOES THE PRINCIPAL TERM HAVE TO BE THE LONGEST TERM

OF THE CURRENT CONVICTIONS WHEN THE PLEA BARGAINSETS A RANGE FOR THE JUDGES DISCRETION?. . . . . . . . . . . . . 173

C. NEED OBJECTION RE ADVICE TO STRIKE AN ENHANCEMENTRE: CONSEQUENCES OF PLEA. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 173

D. ARE CONTENTIONS BASED ON SECTION 654 FORFEITED WHENTHE DEFENDANT AGREES TO A “LID” AND NOT A SPECIFIEDTERM WITHIN THE MEANING OF CALIFORNIA RULES OFCOURT, RULE 4.412(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 173

E. THE TRIAL COURT CAN PROPERLY REJECT A PLEA BARGAINUNLESS ONE OF THE THREE EXCEPTIONS TO SECTION 1192.7,SUBDIVISION (A)(2)’s PROHIBITION AGAINST PLEABARGAINING APPLIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 174

15. SECTION 1203.4. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 174

16. PROPOSITION 36 DRUG REHABILITATION. . . . . . . . . . . . . . . . . . . . . . . . . . . . 175

17. ONE STRIKE LAW SECTION 667.61. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 183

18. FINES, FEES AND BLOOD SAMPLES.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 186

19. NEW SENTENCING HEARING. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 202A. APPELLANT MAY GET A NEW COMPLETELY NEW

SENTENCINGHEARING ON REMAND WHEN THE PREVIOUS COURTRETIRES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 202

B. THE MATTER MUST BE REMANDED FOR A NEW SENTENCINGHEARING FOR THE TRIAL COURT TO CHANGE THE RESULT. . . . . . . 202

C. UNAUTHORIZED SENTENCE.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 203D. RE-SENTENCING UNDER SECTION 1170, SUBDIVISION (D).. . . . . . . . . 205

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20. DISCRETION TO SET CUSTODY TIME IN DEPARTMENT OF JUVENILEJUSTICE (FORMERLY CYA). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 206

21. SEX REGISTRATION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 206A. SEX REGISTRATION FOR FELONIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 206B. SEX REGISTRATION FOR A MISDEMEANOR.. . . . . . . . . . . . . . . . . . . . . . 214

22. RIGHT TO ALLOCUTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 215A. DEFENDANT’S RIGHT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 215B. VICTIM TESTIFYING AT SENTENCING HEARING. . . . . . . . . . . . . . . . . . 215

23. SENTENCE ON GREATER, DISMISS THE LESSER. . . . . . . . . . . . . . . . . . . . . . 216

24. MULTIPLE OR SINGLE CONVICTION BASED ON THE SAME ORDIFFERENT THEORY OF THE CONVICTION.. . . . . . . . . . . . . . . . . . . . . . . . . . 216

25. PROTECTIVE ORDER AGAINST THE DEFENDANT. . . . . . . . . . . . . . . . . . . . . 219

26. A DEFENDANT CANNOT BE SENTENCED TO A PENAL CODE SECTIONTHAT DOES NOT STATE A CRIME, BUT IS ONLY A PENALTY PROVISION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 219

27. EXPERT WITNESS AT SENTENCING HEARING EVIDENCE CODE SECTION730. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 220

28. AGGRAGATE SENTENCE IMPOSING BOTH INDETERMINATE ANDDETERMINATE TERMS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 220

29. PENAL CODE SECTION 1170.9 UNITED STATES MILITARY PTSD. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 221

30. FEDERAL AND STATE PROSECUTIONS UNDER THE DOUBLE JEOPARDYCLAUSE AND PENAL CODE SECTIONS 656 AND 793. . . . . . . . . . . . . . . . . . . . 222

31. PROPOSITION 36 THREE STRIKES MODIFICATION.. . . . . . . . . . . . . . . . . . . 222

32. THE COURT CANNOT SUBSTITUTE TWO ATTEMPTED CRIMES, BOTHWHICH CONSTITUTE STRIKES, FOR ONE COMPLETED COUNT WHERETHE COURT OF APPEAL FOUND THE EVIDENCE INSUFFICIENT TOSUPPORT THAT CONVICTION, OR IS ONLY ONE CRIME PERMITTED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 246

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33. THE SENTENCE FOR GASSING WITHIN THE MEANING OF SECTION 4501.5MUST BE CONSECUTIVE TO OTHER OFFENSES AND IF MORE THAN ONE,TO EACH OTHER. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 247

34. PROPOSITION 47 SECTION 1170.18. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 247

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TABLE OF AUTHORITIESPage(s)

FEDERAL CASES

Almendarez-Torres v. United States (1998) 523 U.S. 224 [140 L.Ed.2d 350, 118 S.Ct. 1219]. . . . . . . . . . . . . . . . . . . . 2, 7, 10, 120

Apprendi v. New Jersey (2000)530 U.S. 466.. . . . . . . . . . . . . . . . . . . . . . . . 1-3, 5, 11, 16-18, 47, 75, 113, 120, 122, 127

Atkins v. Virginia (2002) 536 U.S. 304 [147 L.Ed.2d 435, 120 S.Ct. 2348]. . . . . . . . . . . . . . . . . . . . . . . . . 24, 26

Bitter v. U.S. (1967) 389 U.S. 15, [19 L.Ed.2d 15, 88 S.Ct. 6]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 219

Blakely v. Washington (2004) 542 U.S. 296 [124 S.Ct. 2531, 159 L.Ed.2d 403]. . . . . . . . . . . 1-5, 10, 11, 16-18, 183

Brown v. Ohio (1977) 432 U.S. 161, [53 L.Ed.2d 187, 97 S.Ct. 2221].. . . . . . . . . . . . . . . . . . . . . . . . . . . . 125

Brown v. Poole (9th Cir. 2003)337 F.3d 1155. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 171

Carr v. United States (2010) 560 U.S. [176 L.Ed.2d 1152, 130 S.Ct. 2229].. . . . . . . . . . . . . . . . . . . . . . . . . . . 222

Chapman v. California (1967) 386 U.S. 18 [17 L.Ed.2d 705, 87 S.Ct. 824]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Crosby v. Schwartz (9th Cir. 2012) 678 F.3d 784.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

Cunningham v. California (2007) 549 U.S. 270 [127 S.Ct. 856, 166 L.Ed.2d 856]. . . . 2-18, 58, 113, 114, 120, 128, 154

Edwards v. Arizona (1981) 451 U.S. 477 [68 L.Ed.2d 378, 101 S.Ct. 188]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48

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Estelle v. Gamble (1976) 429 U.S. 97 [50 L.Ed.2d 251, 97 S.Ct. 285]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 170

Ewing v. California (2003) 538 U.S. 11 [155 L.Ed.2d 108, 123 S.Ct. 1179]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

Garcia v. Carey (9th Cir. 2005)395 F.3d 1099. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77, 78

Gonzalez v. Duncan (9th Cir., 2008) 551 F.3d 875.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

Graham v. Florida (2010) 560 U.S. [176 L.Ed.3d 825; 130 S.Ct. 2011]. . . . . . . . . . . . . . . . . . . . . . . . . . 29-33

Greenlaw v. United States (2008) 554 U.S. 237, [171 L.Ed.2d 399, 128 S.Ct. 2559].. . . . . . . . . . . . . . . . . . . . . . . . . . 203

Hall v. Florida (2014) U.S. , reported on May 28, 2014, in 2014 Los Angeles Daily Journal 6488. . . . . . . 39

Hudson v. Louisiana (1981) 450 U.S. 40 [67 L.Ed.2d 30, 101 S.Ct. 970]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 126

Indianapolis v. Edmund (2000) 531 U.S. 32 [143 L.Ed.2d 333, 121 S.Ct. 447]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 187

INS v. St. Cyr (2001) 533 U.S. 289 [150 L.Ed. 347, 121 S.Ct. 2271]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 174

Kennedy v. Louisiana (2008) 554 U.S. 407, [171 L.Ed.2d 525, 128 S.Ct. 2641].. . . . . . . . . . . . . . . . . . . . . . . . . . . 27

Lockyer v. Andrade (2003) 538 U.S. 63 [155 L.Ed.2d 144, 123 S.Ct. 1166]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Martinez v. Illinois (2014) U.S. , reported on May 28, 2014, in 2014 Los Angeles Daily Journal 6478. . . . . . 142

Miller v. Alabama (2012) 560 U.S. , [183 L.Ed.2d 407, 132 S.Ct. 2455]. . . . . . . . . . . . . . . . . . . . . . . . . . 31-34

8

Miller v. Florida (1987)482 U.S. 423.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Monge v. California (1998) 524 U.S. 721 [141 L.Ed.2d 615, 118 S.Ct. 2246]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Oregon v. Ice (2009) 555 U.S. 160 [172 L.Ed.2d 517, 129 S.Ct. 711]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Penry v. Johnson (2001) 532 U.S. 782 [150 L.Ed.2d 1254, 88 S.Ct. 1910]. . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

Powell v. Texas (1968) 392 U.S. 514 [20 L.Ed.2d 1254, 88 S.Ct. 2145]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

Ramirez v. Castro (9th Cir. 2004)365 F.3d 755.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24-26

Reyes v. Brown (9th Cir. 2005)399 F.3d 964.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

Richardson v. United States (1984) 568 U.S. 317 [82 L.Ed.2d 242, 104 S.Ct. 3081]. . . . . . . . . . . . . . . . . . . . . . . . . . . . 124

Rios v. Garcia (Ninth Cir. 2004)390 F.3d 1082. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

Rise v. Oregon (9th Cir. 1995)59 F. 3d 1556. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 187

Rita v. United States (2007) 551 U.S. 338 [168 L.Ed.2d 203, 127 S.Ct. 2456]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Robinson v. California (1962) 370 U.S. 660 [8 L.Ed.2d 758, 82 S.Ct.1417]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

Roper v. Simmons (2005) 543 U.S. 351 [161 L.Ed.2d 1, 125 S.Ct. 1183]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

Rummel v. Estelle (1980) 445 U.S. 263 [63 L.Ed.2d 382, 100 S.Ct. 1133]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

9

Santobello v. New York (1971) 404 U.S. 257 [30 L.Ed. 427, 92 S.Ct. 495]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 174

Smith v. Massachusetts (2005) 543 U.S. 462 [160 L.Ed.2d 914, 125 S.Ct.1129].. . . . . . . . . . . . . . . . . . . . . . . . . . . 123

Smith v. Texas (2004) 543 U.S. 37 [160 U.S. 303, 125 S.Ct. 4000]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

Solem v. Helm (1983) 463 U.S. 277 [77 L.Ed.2d 637, 103 S.Ct. 3001]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

Southern Union Co. v. United States (2012) 567 U.S. , [132 S. Ct. 2344]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18, 200

Taylor v. Lewis (9th Cir. 2006)460 F.3d 1093. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

United States v. Ameline (2005)409 F.3d 1073. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 202

United States v. Barajas-Avalos (9th Cir. 2004)377 F.3d 1040. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

United States v. Blanton (9th Cir. 2007)476 F.3d 767.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

United States v. Booker (2005) 543 U.S. 220 [160 L.Ed.2d 621, 125 S.Ct. 738]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

United States v. Gunning (2005)401 F.3d 1145. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 215

United States v. Marolda (9th Cir. 1981)648 F.2d 623.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 137

United States v. Martin Linen Supply Co. (1977) 430 U.S. 564, 573 [51 L.Ed.2d 642, 97 S.Ct. 1349]. . . . . . . . . . . . . . . . . . . . . . . . . 123

United States v. Patterson (9th Cir. 2004)381 F.3d 859.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 122

10

United States v. Sanders (9th Cir. 2005)421 F.3d 1044. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 202

United States v. Tighe (9th Cir. 2001)266 F.3d 1187. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 11, 120

Washington v. Recuenco (2006) 548 U.S. 212 [165 L.Ed.2d 466, 126 S.Ct. 2546]. . . . . . . . . . . . . . . . . . . . . . . . 5, 6, 12

CALIFORNIA CASES

Alejandro N. v. Superior Court (2015) 238 Cal.App.4th 1209. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 253

Alvarado v. Superior Court (2007)146 Cal.App.4th 993. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96

Bailey v. Superior Court (1970)4 Cal.App.3d 513.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 107

Barragan v. Superior Court (2007)148 Cal.App.4th 1478. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Braziel v. Superior Court (2014) 225 Cal.App.4th 933. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 226

Centeno v. Superior Court (2004)117 Cal.App.4th 30. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Cooper v. Union Bank (1973)9 Cal.3d 371. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 163

Fost v. Superior Court (2000)80 Cal.App.4th 724. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 221

Gebremicael v. California Com. on Teacher Credentialing (2004)118 Cal.App.4th 1477. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 157

Hale v. Superior Court (2014) 225 Cal.App.4th 268. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 108

11

Harris v. Superior Court (2015) 242 Cal.App.4th 244. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 258

Helena Rubenstein v. Younger (1977)71 Cal.App.3d 406.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 192

In re Alatriste (REVIEW GRANTED); FORMERLY AT: (2013) 220 Cal.App.4th 1232. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

In re Alejandro B. (2015) 236 Cal.App.4th 705. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72

In re Alex U. (2007)158 Cal.App.4th 259. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

In re Alva (2004)33 Cal.4th 254. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 214

In re Ballard (1981) 115 Cal.App.3d 647. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53

In re Bernardino S. (1992)4 Cal.App.4th 613. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75

In re Borlik (2011) 194 Cal.App.4th 30. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50

In re Brittany L. (2002)99 Cal.App.4th 1381. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 162

In re Carleisha P. (2006)144 Cal.App.4th 912. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 217

In re Carlos E. (2005)127 Cal.App.4th 1529. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70

In re Cervera (2001)24 Cal.4th 1073. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

In re Chavez (2004)114 Cal.App.4th 989. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59

12

In re Christian G. (2007)153 Cal.App.4th 708. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 12

In re Coley (2012) 55 Cal.4th 524. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

In re Cruz (1966)64 Cal.2d 178. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76, 123

In re Damien V. (2008) 63 Cal.App.4th 16. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79

In re Derrick B. (2006)39 Cal.4th 535. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 206

In re Dina V. (2007) 151 Cal.App.4th 486. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 162, 164

In re Estrada (1965) 63 Cal.2d 740. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59, 222, 223

In re Gomez (2009) 179 Cal.App.4th 1272. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49

In re Gomez (2009) 45 Cal.4th 650. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

In re Harris (1989)49 Cal.3d 131. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91, 101

In re Hawthorne (2005)35 Cal.4th 40. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

In re Hayes (1969) 70 Cal.2d 604. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 138

In re Heard (2014) 223 Cal.App.4th 115. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36

In re Hoddinott (1996)12 Cal.4th 992, 999. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46

13

In re J.L. (2015) 242 Cal.App.4th 1108. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 259

In re Jacob J. (2005)130 Cal.App.4th 429. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70

In re Jesse P. (1992)3 Cal.App.4th 1177. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 114

In re Jonathan T. (2008) 166 Cal.App.4th 474. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 114

In re Joyner (1989)48 Cal.3d 487. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52

In re K.F. (2009) 173 Cal.App.4th 655. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 161

In re Kirchner (2016) 244 Cal.App.4th 1398. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45

In re Large (2007)41 Cal.4th 538. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70

In re Maes (2010)185 Cal.App.4th 1094. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51

In re Mehdizadeh (2003)105 Cal.App.4th 995. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 176

In re Noelle M. (2008)169 Cal.App.4th 193. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 130

In re Nunez (2009) 173 Cal.App.4th 709. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

In re Ogea (2004)121 Cal.App.4th 974. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 176, 178, 179

In re Pacheco (2007)155 Cal.App.4th 1439. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48

14

In re Phelon (2005)132 Cal.App.4th 1214. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48, 49

In re Pope (2010)50 Cal.4th 777. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49, 50

In re Rainey (2014) 224 Cal.App.4th 280. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38

In re Reeves (2005)35 Cal.4th 765. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47, 48

In re Renfrow (2008) 164 Cal.App.4th 1251. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 204

In re Robbins (1998)18 Cal.4th 770. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

In re Robert D. (1979)95 Cal.App.3d 767, 774-775. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

In re Sean W. (2005)127 Cal.App.4th 1177. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 206

In re Shannon B. (1994)22 Cal.App.4th 1235. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 215

In re Sheena K. (2007) 40 Cal.4th 875. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52, 170

In re Tate (2006)135 Cal.App.4th 756. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48

In re Taylor (2003)105 Cal.App.4th 1394. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 178

In re Taylor (2015) 60 Cal.4th 1019. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 214

In re Tommy A. (2005)131 Cal.App.4th 1580. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 162

15

In re Varnell (2003) 30 Cal.4th 1132. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62, 64, 147, 175

In re Water of Long Valley Creek Stream System (1979)25 Cal.3d 339. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

In re Watson (2010)181 Cal.App.4th 956. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

In re Willover (2015) 235 Cal.App.4th 1328. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42

In re Wilson (2015) 233 Cal.App.4th 544. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41

In re Young (2004)32 Cal.4th 900. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58

Johnson v. Department of Justice (2015) 60 Cal.4th 871. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 213

Kellett v. Superior Court (1966)63 Cal.2d 822. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 122

Kinney v. Vaccari (1980)27 Cal.3d 348. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 203

Kubik v. Scripps College (1981)118 Cal.App.3d 544. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 210

Lewis v. Superior Court (2008) 169 Cal.App.4th 70. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 208

Lopez v. Superior Court (2008) 160 Cal.App.4th 824. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78

Lowe v. Superior Court (2014) 228 Cal.App.4th 387. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 229

Lungren v. Deukmejian (1988)45 Cal.3d 727. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 179

16

Montgomery v. Louisiana (2016) U.S. , reported on January 26, 2016, in 2016 Los Angeles Daily Journal 778. . . . . . 44

Moore v. Superior Court (2004)117 Cal.App.4th 401. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 175

Payton v. Superior Court (2012) 202 Cal.App.4th 1187. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62-64

People v. Abercrombie (2007)151 Cal.App.4th 585. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

People v. Abundio (2013) 221 Cal.App.4th 1211. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

People v. Acosta (1996) 48 Cal.App.4th 411. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65

People v. Acosta (2002)29 Cal.4th 105. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 184

People v. Acosta (2015) 242 Cal.App.4th 521. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 259

People v. Aguilar (2015) 60 Cal.App.4th 862. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 201

People v. Ahmed (2011) 53 Cal.4th 156. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 136, 139-141

People v. Akins (1997)56 Cal.App.4th 331. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76, 124

People v. Albillar (2010)51 Cal.4th 47. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83

People v. Alford (2007)42 Cal.4th 749. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 189, 190, 192-195

People v. Alford (2010)180 Cal.App.4th 1463. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 133

17

People v. Allan (1996)49 Cal.App.4th 1507. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 172

People v. Allexy (2012) 204 Cal.App.4th 1358. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 211

People v. Almanza (DEPUBLISHED); FORMERLY AT: (2012) 207 Cal.App.4th 269. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 196

People v. Alvarez (1996)14 Cal.4th 155. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94

People v. Alvarez (2002)27 Cal.4th 1161. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 183

People v. Alvarez (2009) 178 Cal.App.4th 999. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 132

People v. Amaya (2015) 239 Cal.App.4th 379. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 240

People v. Amaya (2015) 242 Cal.App.4th 972. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 259

People v. Anderson (1990)221 Cal.App.3d 331. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 131

People v. Anderson (2009) 47 Cal.4th 92. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 115, 132

People v. Anderson (2014) 225 Cal.App.4th 1368. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 226

People v. Anderson (2014) 229 Cal.App.4th 925. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 231

People v. Andra (2007)156 Cal.App.4th 638. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 129

People v. Anthony (2014) 230 Cal.App.4th 1176. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 232

18

People v. Antick (1975)15 Cal.3d 79. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102

People v. Aparicio (2015) 232 Cal.App.4th 1065. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 235, 248

People v. Arata (2007)151 Cal.App.4th 778. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 174

People v. Arauz (1992) 5 Cal.App.4th 663. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 174

People v. Arauz (2012) 210 Cal.App.4th 1394. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 139

People v. Arevalo (2016) 244 Cal.App.4th 836. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 244

People v. Argeta (2012) 210 Cal.App.4th 1478. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

People v. Arias (2010)182 Cal.App.4th 1009. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101

People v. Arias (2015) 240 Cal.App.4th 161. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 240

People v. Armogeda (2015) 233 Cal.App.4th 428. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 235

People v. Arndt (1999)76 Cal.App.4th 387. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76, 123

People v. Arnold (2004)33 Cal.4th 294. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54

People v. Arnold (2004)33 Cal.4th 294. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53, 54

People v. Arreola (1994)7 Cal.4th 1144. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 166

19

People v. Arroyas (2002)96 Cal.App.4th 1439. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78, 79

People v. Atencio FORMERLY AT: (2010) 190 Cal.App.4th 695, VACATED AND REWRITTEN (2012) 208 Cal.App.4th 1239) SEE PAGE 139

.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 134

People v. Atencio (2012) 208 Cal.App.4th 1239. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 138

People v. Athar (2005)36 Cal.4th 396. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 112

People v. Atkins (2014) 229 Cal.App.4th 536. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 230

People v. Aubrey (1998)65 Cal.App.4th 279. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 203

People v. Augborne (2002)104 Cal.App.4th 362. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77

People v. Ausbie (2004)123 Cal.App.4th 855. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 121

People v. Awad (2015) 238 Cal.App.4th 215. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 252

People v. Ayala (2007)155 Cal.App.4th 604. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

People v. Ayers (2004)119 Cal.App.4th 1007. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 203

People v. Bacon DEPUBLISHED; formerly at: (2010) 186 Cal.App.4th

333. . . . . . . . . . . . . . . . . . . 60

People v. Baez (2008) 167 Cal.App.4th 197. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117

20

People v. Bailey (1961) 55 Cal.2d 514. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 135, 136, 143

People v. Baker (1974)39 Cal.App.3d 550.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 133

People v. Baneulos (2005)130 Cal.App.4th 601. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 119

People v. Banks (1959)53 Cal.2d 370, 383-387.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 157

People v. Banks (2007)149 Cal.App.4th 969. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 5

People v. Barao (2013) 218 Cal.App.4th 769. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 174

People v. Barkley (2008) 166 Cal.App.4th 1590. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 157

People v. Barnett (1995)35 Cal.App.4th 1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

People v. Barrigan (2004)32 Cal.4th 238. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 154

People v. Barros (2012) 209 Cal.App.4th 1581. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 181

People v. Bartell (2009) 170 Cal.App.4th 1258. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 163

People v. Batts (2003)30 Cal.4th 660. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 123

People v. Bauer (2011) 193 Cal.App.4th 396. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 181

People v. Baughman (2008) 166 Cal.App.4th 1316. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

21

People v. Bautista (2005)125 Cal.App.4th 646. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75, 76

People v. Beagle (2004)125 Cal.App.4th 415. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 154

People v. Beamon (1973)8 Cal.3d 625. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 125, 131, 136, 137

People v. Beard (2012) 207 Cal.4th 936. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 111

People v. Belmontes (1983)34 Cal.3d 335. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72, 95

People v. Benevides (1998)64 Cal.App.4th 728, 735.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 69

People v. Benitez (2005)127 Cal.App.4th 1274. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 183

People v. Benson (1998)18 Cal.4th 24. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69, 71

People v. Bernal (2002)101 Cal.App.4th 155. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 162-164

People v. Berry (2015) 235 Cal.App.4th 1417. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 238

People v. Bias (2016) 245 Cal.App.4th 302. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 264

People v. Black (2005)35 Cal.4th 1238. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 2

People v. Black (2007)41 Cal.4th 799. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 8, 10-15, 114, 128, 155

People v. Black (2009) 176 Cal.App.4th 145. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54, 167

22

People v. Blackwell (2011) 202 Cal.App.4th 144. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30, 31

People v. Blake (1998)68 Cal.App.4th 509. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 130

People v. Blake (2004)117 Cal.App.4th 543. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94

People v. Blakely (2014) 225 Cal.App.4th 1042. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 225

People v. Bland (1995)10 Cal.4th 991. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95

People v. Blount (2009) 175 Cal.App.4th 992. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 205

People v. Bonnetta (2009) 46 Cal.4th 143. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73, 82

People v. Borg (DEPUBLISHED): FORMERLY AT: (2012) 204 Cal.App.4th 1528. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62

People v. Botello (2010) 183 Cal.App.4th 1014. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101

People v. Bowen (2004)125 Cal.App.4th 101. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 177

People v. Bowie (1977)72 Cal.App.3d 143.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 218

People v. Bracamonte (1981)119 Cal.App.3d 644. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74, 112

People v. Bracamonte (2003)106 Cal.App.4th 704. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97-99, 106

People v. Bradford (1976)17 Cal.3d 8. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 134

23

People v. Bradford (2014) 227 Cal.App.4th 1322. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 228

People v. Bradley (1998)64 Cal.App.4th 386. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70, 71, 73, 92, 184, 204

People v. Bragg (2008) 161 Cal.App.4th 1385. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78, 129

People v. Braz (1998)65 Cal.App.4th 425. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 107

People v. Brenn (2007)152 Cal.App.4th 166. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 126

People v. Brewer (2011) 192 Cal.App.4th 457. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50, 61

People v. Brewer (2014) 225 Cal.App.4th 98. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 118

People v. Briceno (2004)34 Cal.4th 451. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74-76, 79, 117

People v. Brimmer (2014) 230 Cal.App.4th 782. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 231

People v. Briones (2008) 167 Cal.App.4th 524. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 130

People v. Britt (2004)32 Cal.4th 944. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 121, 134

People v. Brock REVIEW GRANTED AND DISMISSED:Formerly at: (2007) 155 Cal.App.4th 903. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

People v. Brookfield (2009) 47 Cal.4th 583. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80, 82-84

People v. Brooks (2009)175 Cal.App.4th 1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 191, 193

24

People v. Brooks (2010) 182 Cal.App.4th 1348. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 169

People v. Brown (2006)140 Cal.App.4th 76. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 124

People v. Brown (2007)148 Cal.App.4th 911. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 125

People v. Brown (2012) 54 Cal.4th 314. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63-66

People v. Brown (2014) 230 Cal.App.4th 1502. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 232

People v. Brown (2016) 244 Cal.App.4th 1170. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 263

People v. Bruner (1995) 9 Cal.4th 1178. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52, 53, 55, 63, 65

People v. Bryant (2009) 174 Cal.App.4th 175. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56

People v. Buckhalter (2001)26 Cal.4th 20. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62

People v. Budwiser (2006)140 Cal.App.4th 105. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 179

People v. Bufford (2007) 146 Cal.App.4th 966. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 171

People v. Bui (2011) 192 Cal.App.4th 1002. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 134

People v. Bullwinkle (1980)105 Cal.App.3d 82.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 218

People v. Burbine (2003)106 Cal.App.4th 1250. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 202

25

People v. Burch (2007)143 Cal.App.4th 447. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 113

People v. Burgos (2004)117 Cal.App.4th 1209. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69, 71

People v. Burke (1956) 47 Cal.2d 45. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64

People v. Burnes (2015) 242 Cal.App.4th 1452. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 241

People v. Burnett (2004)116 Cal.App.4th 257. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 190

People v. Burton (2006)143 Cal.App.4th 447. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94

People v. Burton (2009) 177 Cal.App.4th 194. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 167

People v. Buser (2005)132 Cal.App.4th 1188. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

People v. Bush (2016) Cal.App.4th , reported on March 23, 2016, in 2016 Los Angeles Daily Journal 2772

.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 267

People v. Butler (2016) 243 Cal.App.4th 1346. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 153

People v. Buttram (2003)30 Cal.4th 773. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 172, 204

People v. Buycks (2015) 241 Cal.App.4th 519. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 256

People v. Caballero (2012) 55 Cal.4th 262. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31-34

People v. Caesar (2008)167 Cal.App.4th 1050. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 100

26

People v. Calderon (1994)9 Cal.4th 69. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74, 112, 113

People v. Calderon (2013) 214 Cal.App.4th 656. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 141

People v. Calhoun (2007)40 Cal.4th 398. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 100, 113, 114

People v. Callahan (2006)144 Cal.App.4th 678. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55, 56

People v. Calles (2012) 209 Cal.App.4th 1200. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 139

People v. Camino (2010) 188 Cal.App.4th 1359. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102

People v. Camp (2015) 233 Cal.App.4th 461. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 152

People v. Campbell (2004)119 Cal.App.4th 1279. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 176, 180

People v. Campos (2011) 196 Cal.App.4th 438. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81

People v. Canela (2014) 224 Cal.App.4th 703. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 108

People v. Cantrell (2009) 175 Cal.App.4th 1161. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 132

People v. Canty (2004)32 Cal.4th 1266. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 176

People v. Carbajal (1995)10 Cal.4th 1114. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 162, 163

People v. Carbajal (2013) 56 Cal.4th 521. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 115, 141

27

People v. Cardenas REHEARING GRANTED: formerly at: (2007)153 Cal.App.4th 445. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

People v. Carlson (2011) 200 Cal.App.4th 695. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 197

People v. Carmony (2004)33 Cal.4th 367. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69, 71

People v. Carmony (2005) 127 Cal.App.4th 1066. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26, 29, 31

People v. Carpenter (1997)15 Cal.4th 312. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 183

People v. Carr (1988)204 Cal.App.3d 774. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91

People v. Carrasco (2006)137 Cal.App.4th 1050. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97, 103

People v. Carrea (2016) 244 Cal.App.4th 966. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 263

People v. Carrillo (2001)87 Cal.App.4th 1416, 1421. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70

People v. Carter (1977)75 Cal.App.3d 865.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 218

People v. Carter (1998)60 Cal.App.4th 752. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 107

People v. Casica (2014) 223 Cal.App.4th 320. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 142

People v. Castagne (2008) 166 Cal.App.4th 727. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 180

People v. Castaneda (1999)75 Cal.App.4th 611. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 121

28

People v. Castellanos (1999)21 Cal.4th 254. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 189, 190, 195, 207, 210

People v. Castellanos (2009) 175 Cal.App.4th 1524. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 192, 199

People v. Castellanos (2009)173 Cal.App.4th 1401. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 191

People v. Castillo (2010) 182 Cal.App.4th 1410. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 192-194, 197

People v. Catalan (2014) 228 Cal.App.4th 173. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 151

People v. Cates (2009) 170 Cal.App.4th 545. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 169

People v. Catteneo (1990)217 Cal.App.4th 1577. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 194

People v. Ceja (2010) 49 Cal.4th 1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 216

People v. Cervantes (2009) 175 Cal.App.4th 291. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 167

People v. Chambers (1972) 7 Cal.3d 666. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103

People v. Chambers (1998)65 Cal.App.4th 189. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 161

People v. Chan (2005)128 Cal.App.4th 408. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 183, 216

People v. Chaney (2014) 231 Cal.App.4th 1391. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 233, 247

People v. Chatmon (2005)129 Cal.App.4th 771. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 171, 178

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People v. Chavez (2004)116 Cal.App.4th 1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45

People v. Chavez (2014) 228 Cal.App.4th 18. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40

People v. Chavez OVERRULED BY LEGISLATION;Formerly at: (2007) 150 Cal.App.4th 1288. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 188

People v. Chen (2016) 245 Cal.App.4th 322. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 265

People v. Chilelli (2014) 225 Cal.App.4th 581. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67

People v. Chubbuck (2014) 231 Cal.App.4th 737. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 233

People v. Chun (2007)155 Cal.App.4th 170. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 160

People v. Chung (2015) 237 Cal.App.4th 462. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 144

People v. Clancey (2013) 56 Cal.4th 562. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 172

People v. Cluff (2001)87 Cal.App.4th 991, 1004.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

People v. Clytus (2012) 209 Cal.App.4th 1001. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 146, 148, 149

People v. Cobb (2004)124 Cal.App.4th 1051. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 122

People v. Coleman (2013) 218 Cal.App.4th 353. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 198

People v. Colley (1980)113 Cal.App.3d 870. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 167

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People v. Collins (2001)26 Cal.4th 297. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

People v. Conerly (2009)176 Cal.App.4th 240. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93

People v. Conley (2013) 216 Cal.App.4th 1482. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 222, 223

People v. Conners (2008) 168 Cal.App.4th 443. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 130, 169

People v. Contreras (2015) 237 Cal.App.4th 868. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 251

People v. Contreras (REVIEW GRANTED PENDING CONLEY; FORMERLY AT:(2013)

221 Cal.App.4th 558. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 224

People v. Cook (2015) 60 Cal.4th 922. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 109

People v. Cookson (1991)54 Cal.3d 1091. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 166

People v. Corban (2006)138 Cal.App.4th 1111. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89

People v. Cornejo (2016) 243 Cal.App.4th 1453. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43

People v. Coronado (1995)12 Cal.4th 145. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77, 93

People v. Corrales (2013) 213 Cal.App.4th 696. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 197, 198

People v. Correa (2012) 54 Cal.4th 331. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 138, 140

People v. Cortez (1999)73 Cal.App.4th 276. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 119, 153, 154

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People v. Cortez (2010) 189 Cal.App.4th 1436. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 194, 197

People v. Couch (1996)48 Cal.App.4th 1053. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 171, 178

People v. Crabtree (2009) 169 Cal.App.4th 1293. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 197

People v. Crandell (2007)40 Cal.4th 1301. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 164, 188

People v. Crites (2006)135 Cal.App.4th 1251. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72, 94

People v. Crittle (2007)154 Cal.App.4th 368. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 189, 195

People v. Crockett (2015) 234 Cal.App.4th 642. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 236

People v. Cropsey (2010) 184 Cal.App.4th 961. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 200

People v. Cross (2008) 45 Cal.4th 58. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

People v. Crow (1993)6 Cal.4th 952. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 163

People v. Cruz (1988)44 Cal.3d 1247. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57, 58

People v. Cruz (2012) 207 Cal.App.4th 664. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63, 149

People v. Cruz (2013) 219 Cal.App.4th 61. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 198

People v. Cuen (2015) 241 Cal.App.4th 1227. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 257

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People v. Cuevas (2008) 44 Cal.4th 374. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 173

People v. Culbert (2013) 218 Cal.App.4th 184. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 159

People v. Culp (2000)100 Cal.App.4th 1278. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49

People v. Cunningham (2001)25 Cal.3d 926, 1044. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 165

People v. Cunningham (2016) 244 Cal.App.4th 1049. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 110

People v. Curry (2008)158 Cal.App.4th 766. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

People v. Curtin (1994)22 Cal.App.4th 528. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 131

People v. Dagostino (2004) 117 Cal.App.4th 974. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 176, 182

People v. Daniels (2012) 208 Cal.App.4th 29. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 137

People v. Davey (2004)122 Cal.App.4th 1548. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 122, 217

People v. Davies (2003)104 Cal.App.4th 1443. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 176

People v. Davis (2002)102 Cal.App.4th 377. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 127, 207

People v. Davis (2003)104 Cal.App.4th 1443. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 177

People v. Davis (2006)141 Cal.App.4th 519. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90

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People v. Davis (2010)185 Cal.App.4th 998. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51, 192, 194

People v. Davis (2011)202 Cal.App.4th 429. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 222

People v. Davis (2015) 234 Cal.App.4th 1001. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 237, 249

People v. Davis (2016) Cal.App.4th , reported on April 1, 2016, in 2016 Los Angeles Daily Journal 3121

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People v. DeFrance (2008) 167 Cal.App.4th 486. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 190

People v. Dehoyos (2015) 238 Cal.App.4th 363. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 253

People v. Delapena (2015) 238 Cal.App.4th 1414. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 254

People v. Delgadillo (2005)132 Cal.App.4th 1570. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95

People v. Delgado (1993)16 Cal.App.4th 551. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 172

People v. Delgado (2006)140 Cal.App.4th 1157. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 169

People v. Delgado (2012) 210 Cal.App.4th 761. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65

People v. Delgado (2013) 213 Cal.App.4th 660. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 110

People v. Delgado (2013) 214 Cal.App.4th 914. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 148

People v. Delgado DEPUBLISHED: formerly at: (2010) 184 Cal.App.4th 271. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59

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People v. Deloza (1998)18 Cal.4th 585. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 126

People v. Deluca (2014) 228 Cal.App.4th 1263. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 213

People v. Demirdjian (2006)144 Cal.App.4th. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

People v. Denard (2015) 242 Cal.App.4th 1012. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 241

People v. Denize (2015) 236 Cal.App.4th 966. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 239

People v. Denman (2013) 218 Cal.App.4th 800. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66

People v. Descano (2016) 245 Cal.App.4th 175. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 264

People v. Devaughn (2014) 227 Cal.App.4th 1092. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 142

People v. Dial (2004)123 Cal.App.4th 1116. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 146

People v. Dial (2005)130 Cal.App.4th 657. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 203

People v. Diaz (2007)150 Cal.App.4th 254. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

People v. Diaz (2015) 238 Cal.App.4th 1323. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 254

People v. Dickerson (2004)122 Cal.App.4th 1374. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 186, 187

People v. Dieck (2009)46 Cal.4th 934. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58, 59

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People v. Dobson (2016) 245 Cal.App.4th 310. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 245

People v. Dokins (2015) 241 Cal.App.4th 1179. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43

People v. Dorsch (1992)3 Cal.App.4th 1346. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 156

People v. Douglas M. (2013) 220 Cal.App.4th 1068. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 212

People v. Dove (2004)124 Cal.App.4th 1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 177

People v. Downey (2000)82 Cal.App.4th 899. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22, 100, 181

People v. Doyle (2013) 220 Cal.App.4th 1251. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117

People v. Drautt (1998)73 Cal.App.4th 577. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 191

People v. Duarte (DEPUBLISHED); FORMERLY AT: (2010) 190 Cal.App.4th 82. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81

People v. Dubose (2014) 224 Cal.App.4th 1416. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38

People v. Duff (2010) 50 Cal.4th 787. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51

People v. Duncan (1990)216 Cal.App.3d 1621. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 176

People v. Dunckhurst (2014) 226 Cal.App.4th 1034. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 227

People v. Durst (2014) 225 Cal.App.4th 108. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 200

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People v. Dydouangphan (2012) 211 Cal.App.4th 772. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 140

People v. Dyser (2012) 202 Cal.App.4th 1015. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

People v. Eandi (2015) 239 Cal.App.4th 801. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 255

People v. Eckley (2004)123 Cal.App.4th 1476. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 160

People v. Eddards (2008)162 Cal.App.4th 712. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 190, 191

People v. Edgar (2002)104 Cal.App.4th 210. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 183

People v. Edwards (2011) 195 Cal.App.4th 1051. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 111

People v. Eid (2014) 59 Cal.4th 650. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 246

People v. Elder (2014) 227 Cal.App.4th 1308. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 228

People v. Elder (2014) 227 Cal.App.4th 411. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 109

People v. Ellis (2012) 207 Cal.App.4th 1546. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64

People v. Em (2009) 171 Cal.App.4th 964. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

People v. English (2007)151 Cal.App.4th 1216. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

People v. Enos (2005)128 Cal.App.4th 1046. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 164

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People v. Enriquez (2008) 160 Cal.App.4th 230. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 180

People v. Eribarne (2004)124 Cal.App.4th 1463. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 177

People v. Eroshevich (2014) 60 Cal.4th 583. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 143

People v. Escobar (1991)235 Cal.App.3d 1504. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 131

People v. Espana (2006)137 Cal.App.4th 549. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 187

People v. Esparza (2003)107 Cal.App.4th 691. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 175

People v. Esparza (2015) 242 Cal.App.4th 726. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 241

People v. Espinoza (2003) 107 Cal.App.4th 1069. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 182

People v. Espinoza (2014) 226 Cal.App.4th 635. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 151

People v. Esquibel (2006) 143 Cal.App.4th 645. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105

People v. Esquibel (2008) 166 Cal.App.4th 539. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15, 106

People v. Estes (1983)147 Cal.App.3d 23.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 128

People v. Estrada (2015) 243 Cal.App.4th 336. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 242

People v. Euseblo ; (DEPUBLISHED): FORMERLY AT: (2010) 185 Cal.App.4th 990. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60

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People v. Evans (2008)44 Cal.4th 590. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 215

People v. Evans (2013) 215 Cal.App.4th 242. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105

People v. Ewing (2016) 244 Cal.App.4th 359. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87

People v. Fandinola (2013) 221 Cal.App.4th 1415. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 150, 199

People v. Fedalizo (2016) Cal.App.4th , reported on March 31, 2016, in 2016 Los Angeles Daily Journal 3093

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People v. Felix (2000)22 Cal.4th 651. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74, 113, 173

People v. Felix (2009) 172 Cal.App.4th 1618. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 131

People v. Ferguson (2011) 194 Cal.App.4th 1070. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 221

People v. Fernandez (2004)123 Cal.App.4th 137. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104

People v. Ferraez (2003) 112 Cal.App.4th 925. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 126

People v. Ferrando (2004)115 Cal.App.4th 917. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 175

People v. Ferris (2005)130 Cal.App.4th 773. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

People v. Feyrer (2010) 48 Cal.4th 426. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 158

People v. Fialho (2014) 229 Cal.App.4th 1389. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 118

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People v. Fielder (2004) 114 Cal.App.4th 1221. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45, 91

People v. Fielder (2007)154 Cal.App.4th 712. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 127, 207

People v. Fields (1996)13 Cal.4th 289. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 126

People v. Finney (2012) 204 Cal.App.4th 1034. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71

People v. Fiu (2008) 165 Cal.App.4th 360. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79

People v. Fleury (2010) 182 Cal.App.4th 1486. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 192

People v. Flores (2005)129 Cal.App.4th 1401. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70, 76, 97, 123

People v. Flores (2007)157 Cal.App.4th 216. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

People v. Flores (2014) 227 Cal.App.4th 1070. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 228

People v. Florez (2016) Cal.App.4th , reported on March 28, 2016, in 2016 Los Angeles Daily Journal 2832

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People v. Fluker (2007)151 Cal.App.4th 515. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

People v. Fong (2013) 217 Cal.App.4th 263. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50

People v. Ford (2013) 217 Cal.App.4th 1354. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 171

People v. Foreman (2005)126 Cal.App.4th 338. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 177, 179

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People v. Franco (2014) 232 Cal.App.4th 831. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 234

People v. Franco (2016) Cal.App.4th , reported on March 16, 2016, in 2016 Los Angeles Daily Journal 2496

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People v. Franklin (1999)20 Cal.4th 249. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75

People v. Franklin (2014) 224 Cal.App.4th 296. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37

People v. Frausto (2009) 180 Cal.App.4th 890. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 100

People v. Frazier (2009) 173 Cal.App.4th 613. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 106

People v. Frederick (2006)142 Cal.App.4th 400. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104

People v. French (2008)43 Cal.4th 36. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 207, 215

People v. Friedeck (2010) 183 Cal.App.4th 892. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 181

People v. Fuentes (2014) 225 Cal.App.4th 1283. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86

People v. Fuller (2006)135 Cal.App.4th 1336. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 184

People v. Gaio (2000)81 Cal.App.4th 919. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104

People v. Galvan (2007)155 Cal.App.4th 978. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 167

People v. Galvan (2008) 168 Cal.App.4th 846. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 110

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People v. Galvan (2015) 235 Cal.App.4th 1318. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 238

People v. Gamble (2008) 164 Cal.App.4th 891. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

People v. Garcia (1999) 20 Cal.4th 490. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64

People v. Garcia (2001)25 Cal.4th 744. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 183

People v. Garcia (2002)28 Cal.4th 1166. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102

People v. Garcia (2003)107 Cal.App.4th 1159. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 121, 131, 216, 217

People v. Garcia (2004)118 Cal.App.4th 987. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 154

People v. Garcia (2004)121 Cal.App.4th. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47

People v. Garcia (2007)147 Cal.App.4th 913. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 204

People v. Garcia (2007)153 Cal.App.4th 1499. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 126

People v. Garcia (2007)155 Cal.App.4th 929. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 128

People v. Garcia (2008)159 Cal.App.4th 163. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

People v. Garcia (2008)161 Cal.App.4th 475. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 207

People v. Garcia (2008)167 Cal.App.4th 1550. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71, 73, 92

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People v. Garcia (2012) 209 Cal.App.4th 530. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64

People v. Garcia (2014) 230 Cal.App.4th 763. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 231

People v. Garcia (2015) 240 Cal.App.4th 1282. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42, 103

People v. Garcia (2016) Cal.App.4th , reported on March 9, 2016, in 2016 Los Angeles Daily Journal 2315

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People v. Garcia (2016) 244 Cal.App.4th 1349. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88, 113

People v. Garcia (2016) 244 Cal.App.4th 224. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 243

People v. Garfield (1979)92 Cal.App.3d 475.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 134

People v. Garner (2016) 244 Cal.App.4th 1113. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 244

People v. Garness (2015) 241 Cal.App.4th 1370. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 257

People v. Garrett (2014) 227 Cal.App.4th 675. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39

People v. Garza (2005)35 Cal.4th 866. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 157

People v. Ghebretensae (2013) 222 Cal.App.4th 741. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 200

People v. Gilbreth (2007)156 Cal.App.4th 53. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 157

People v. Giordano (2007) 42 Cal.4th 644. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 171

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People v. Giordano (2007)42 Cal.4th 644. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 162

People v. Gipson (2013) 213 Cal.App.4th 1523. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 148

People v. Gisbert (2012) 205 Cal.App.4th 277. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63

People v. Glee (2000) 82 Cal.App.4th 99. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 157, 158

People v. Gomez (2015) 243 Cal.App.4th 319. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 260

People v. Gonzales (2001)87 Cal.App.4th 1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97

People v. Gonzales (2007)149 Cal.App.4th 304. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 207

People v. Gonzales (2011) 199 Cal.App.4th 219. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83

People v. Gonzales (2015) 242 Cal.App.4th 35. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 257

People v. Gonzalez (2001) 87 Cal.App.4th 1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103

People v. Gonzalez (2006) 138 Cal.4th 932. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 51, 65

People v. Gonzalez (2008)43 Cal.4th 1118. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98, 99

People v. Gonzalez (2010) 180 Cal.App.4th 1420. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80

People v. Gonzalez (2012) 211 Cal.App.4th 132. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 211

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People v. Gonzalez (2014) 225 Cal.App.4th 1296. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38

People v. Gonzalez (2014) 60 Cal.4th 533. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 143

People v. Gonzalez (2016) 244 Cal.App.4th 1058. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 263

People v. Goode (2015) 243 Cal.App.4th 484. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 145

People v. Goodliffe (2009)177 Cal.App.4th 723. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

People v. Goodwillie (2007)147 Cal.App.4th 695. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57

People v. Goolsby (2015) 62 Cal.4th 96. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 144

People v. Goolsby (2016) 244 Cal.App.4th 1220. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 145

People v. Govan (2007)150 Cal.App.4th 1015. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

People v. Granado (1996)49 Cal.App.4th 317. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96, 97

People v. Grandy (2006)144 Cal.App.4th 33. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98

People v. Grayson (2007)155 Cal.App.4th 1059. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

People v. Grayson (2015) 241 Cal.App.4th 454. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 256

People v. Green (2011) 197 Cal.App.4th 1485. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104

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People v. Griffin (2005)128 Cal.App.4th 1112. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

People v. Griffis (2013) 212 Cal.App.4th 956. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 147

People v. Guerra (1984)37 Cal.3d 385. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50

People v. Guiffre (2008) 167 Cal.App.4th 430. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 161

People v. Guilford (2014) 228 Cal.App.4th 651. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 229

People v. Guillen (2013) 212 Cal.App.4th 992. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 147

People v. Gutierrez (2014) 58 Cal.4th 1354. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39

People v. Gutierrez (2016) 245 Cal.App.4th 393. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 182

People v. Gutierrez (DEPUBLISHED): FORMERLY AT: (2012) 209 Cal.App.4th 646. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

People v. Guzman (1996)45 Cal.App.4th 1023. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 124

People v. Guzman (2005)35 Cal.4th 577. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 178

People v. Guzman (2015) 235 Cal.App.4th 847. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 237

People v. Haddad (2009)176 Cal.App.4th 270. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 181

People v. Hairston (2009) 174 Cal.App.4th 231. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 131

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People v. Hall (2000)83 Cal.App.4th 1084. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 122, 217

People v. Haller (2009)174 Cal.App.4th 1080. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

People v. Hamdon (2014) 225 Cal.App.4th 1065. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 213

People v. Hamed (2013) 221 Cal.App.4th 928. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 199

People v. Hamilton (1978)80 Cal.App.3d 124.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 130

People v. Hamilton (2003)114 Cal.App.4th 932. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 164

People v. Hamlin (2009) 170 Cal.App.4th 1412. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17, 28, 49

People v. Hansen (1994)9 Cal.4th 300. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94

People v. Hanson (2000) 23 Cal.4th 355. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 137, 170, 194

People v. Harbert (2009)170 Cal.App.4th 42. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 130

People v. Harbison (2014) 230 Cal.App.4th 975. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 182

People v. Harris (1990)226 Cal.App.3d 131. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 167

People v. Harris (2009) 171 Cal.App.4th 1488. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 180

People v. Harrison (1969) 1 Cal.App.3d 115.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 138

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People v. Harrison (2009)174 Cal.App.4th 231. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 135

People v. Hartley (2007)156 Cal.App.4th 589. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 179

People v. Hartsell (1973)34 Cal.App.3d 8. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 188

People v. Harvest (2000) 84 Cal.App.4th 641. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 170

People v. Harvey (1979)25 Cal.3d 754. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 154, 155, 174

People v. Haykel (2002)96 Cal.App.4th 146. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 119

People v. Haynes (2014) 225 Cal.App.4th 997. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 225

People v. Haywood (2015) 243 Cal.App.4th 515. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 260

People v. Hazle (2007)157 Cal.App.4th 567. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 179, 180

People v. Hendricks (1987)43 Cal.3d 584. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49

People v. Hernandez (2004)33 Cal.4th 1040. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73, 112

People v. Hernandez (2005)134 Cal.App.4th 474. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97

People v. Hernandez (2008) 166 Cal.App.4th 641. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 207

People v. Hernandez (2014) 232 Cal.App.4th 278. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41

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People v. Hernandez PETITION FOR REVIEW GRANTED (S151549) ANDBRIEFING DEFERRED: formerly at: (2007)

147 Cal.App.4th 1266. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

People v. Herrera (1999) 70 Cal.App.4th 1456. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81, 126

People v. Hester (2000) 22 Cal.4th 290. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 133, 173

People v. Hickman (2015) 237 Cal.App.4th 984. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 251

People v. Hicks (2014) 231 Cal.App.4th 275. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 232

People v. High (2004) 119 Cal.App.4th 1192. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 199

People v. Hilger (2005)131 Cal.App.4th 1528. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54

People v. Hill (2004)119 Cal.App.4th 1192. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

People v. Hill (2006)142 Cal.App.4th 770. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78

People v. Hinkel (2005)125 Cal.App.4th 845. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 177

People v. Hiscox (2006)136 Cal.App.4th 253. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 184, 185, 204

People v. Hoffman (2015) 241 Cal.App.4th 1304. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 257

People v. Hofsheier (2006) 37 Cal.4th 1185. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65, 206-211

People v. Hojnowski (2014) 228 Cal.App.4th 794. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 247

49

People v. Holman (2013) 214 Cal.App.4th 1438. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 161

People v. Holmes (2004)32 Cal.4th 432. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 215

People v. Holt (1991)226 Cal.App.3d 962, 967. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46

People v. Hoover (2011)199 Cal.App.4th 1470. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 195

People v. Hopkins (DEPUBLISHED): FORMERLY AT: (2010) 184 Cal.App.4th 615. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60

People v. House (DEPUBLISHED); FORMERLY AT: (2010) 183 Cal.App.4th 1049. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59

People v. Howard (1997)16 Cal.4th 1081. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 158, 204

People v. Hubbard (2014) 228 Cal.App.4th 1442. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 230

People v. Hudson (2016) 244 Cal.App.4th 1318. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 182

People v. Huff (1990)223 Cal.App.3d 1100. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52

People v. Hul (2013) 213 Cal.App.4th 182. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66, 147

People v. Hume (2011) 196 Cal.App.4th 990. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 164

People v. Hunt (2011) 196 Cal.App.4th 811. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82

People v. Hunt (2013) 213 Cal.App.4th 13. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 197

50

People v. Hurtado (2013) 216 Cal.App.4th 941. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 223

People v. Hutton (2016) Cal.App.4th , reported on March 16, 2016, in 2016 Los Angeles Daily Journal 2485

.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68, 145

People v. Huynh (2014) 227 Cal.App.4th 1210. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 186

People v. Ibarra (2007)156 Cal.App.4th 1174. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

People v. Infante (2014) 58 Cal.4th 688. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85

People v. Isaac (2014) 223 Cal.App.4th 143. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 150

People v. Izaguirre (2007)42 Cal.4th 126. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 127

People v. J.I.A. TRANSFERRED BACK TO COURT OF APPEAL IN LIGHT OFCABALLERO; FORMERLY AT: (2011)

196 Cal.App.4th 393. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

People v. Jackson (2005)134 Cal.App.4th 929. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 165

People v. Jackson DEPUBLISHED (2009) 170 Cal.App.4th 1600. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90

People v. Jacobs (2013) 220 Cal.App.4th 67. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50, 55, 67

People v. James (2011) 196 Cal.App.4th 1102. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62

People v. Jaska (2011) 194 Cal.App.4th 971. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 135

51

People v. Jefferson (2007)154 Cal.App.4th 1381. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 17

People v. Jeffery (2006)142 Cal.App.4th 192. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46

People v. Jeffrey (2004)33 Cal.4th 312. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54

People v. Jeha (2010) 187 Cal.App.4th 1063. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 210

People v. Jenkins (2006)140 Cal.App.4th 804. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 191

People v. Jennings (2005)128 Cal.App.4th 42. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 163, 164

People v. Jensen (1992)4 Cal.App.4th 978. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58

People v. Jernigan (2014) 227 Cal.App.4th 1198. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 228

People v. Jimenez (1992)8 Cal.App.4th 391. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98

People v. Jimenez (1995)33 Cal.App.4th 54. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90

People v. Johnson (1955)134 Cal.App.2d 140. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 174

People v. Johnson (1978)82 Cal.App.3d 183.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53

People v. Johnson (2002)28 Cal.4th 1050, 1054-1055. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53, 54

People v. Johnson (2003)109 Cal.App.4th 1230. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82

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People v. Johnson (2003)114 Cal.App.4th 284. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 178, 181

People v. Johnson (2006)145 Cal.App.4th 895. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92

People v. Johnson (2010) 183 Cal.App.4th 253. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51

People v. Johnson (2012) 211 Cal.App.4th 252. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 174

People v. Johnson (2013) 221 Cal.App.4th 623. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

People v. Johnson (2014) 226 Cal.App.4th 620. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 226

People v. Johnson (2014) 229 Cal.App.4th 910. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86

People v. Johnson (2016) 244 Cal.App.4th 384. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 244

People v. Johnson and People v. Machado (2015) 61 Cal.4th 674. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 239

People v. Jones (1993)5 Cal.4th 1142. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92, 93

People v. Jones (1997) 58 Cal.App.4th 693. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 186

People v. Jones (1998)63 Cal.App.4th 744. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92

People v. Jones (2000)82 Cal.App.4th 485. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72, 94

People v. Jones (2001)25 Cal.4th 98. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 184

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People v. Jones (2007)57 Cal.App.4th 1373. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72, 95

People v. Jones (2009) 47 Cal.4th 566. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80, 84

People v. Jones (2009)178 Cal.App.4th 853. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17, 131, 173

People v. Jones (2012) 54 Cal.4th 350. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 138

People v. Jones (2013) 217 Cal.App.4th 735. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 173

People v. Jones (2015) 236 Cal.App.4th 1411. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91

People v. Jones (2016) Cal.App.4th , reported on March 31, 2016, in 2016 Los Angeles Daily Journal 3113

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People v. Jones (DEPUBLISHED); FORMERLY AT: (2010) 188 Cal.App.4th 165. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61

People v. Jordan (1986)42 Cal.3d 308. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31, 184

People v. Jordan (2006)141 Cal.App.4th 309. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 171, 204

People v. Jorge P. (2011) 197 Cal.App.4th 628. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82

People v. Juarez (2004)114 Cal.App.4th 1095. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53

People v. Juhasz (2013) 220 Cal.App.4th 133. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 182

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People v. Julian (2011) 198 Cal.App.4th 1524. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 107, 108

People v. Keating (DEPUBLISHED); FORMERLY AT: (2010) 185 Cal.App.4th 364. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60

People v. Kelii (1999)21 Cal.4th 452. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

People v. Kellogg (2004)119 Cal.App.4th 593. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

People v. Kelly (1983)33 Cal.3d 267. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91

People v. Kelly (2013) 215 Cal.App.4th 297. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 148, 149

People v. Kendrick (2004)122 Cal.App.4th 1305. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 177

People v. Kenefick (2009)170 Cal.App.4th 114. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 131, 218

People v. Kennedy (2012) 209 Cal.App.4th 385. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64, 146

People v. Kim (2011) 193 Cal.App.4th 836. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 195

People v. Kimbell (2008) 168 Cal.App.4th 904. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49

People v. King (2015) 242 Cal.App.4th 1312. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 259

People v. Kirk (2006)141 Cal.App.4th 715. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 168

People v. Kirvin (2014) 231 Cal.App.4th 1507. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 143

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People v. Kleinman (2004)123 Cal.App.4th 1476. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 160

People v. Knightbent (2010) 186 Cal.App.4th 1105. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 193, 194

People v. Koontz (DEPUBLISHED); FORMERLY AT: (2011) 193 Cal.App.4th 151. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61

People v. Kozeen (1974)36 Cal.App.3d 918.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 193

People v. Kramis (2012) 209 Cal.App.4th 346. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

People v. Kunath (2012) 203 Cal.App.4th 906. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55

People v. Kunkel (1985)176 Cal.App.3d 46.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 158

People v. Kurtenbach (2012) 204 Cal.App.4th 1264. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 137

People v. Labora (2010) 190 Cal.App.4th 907. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 172

People v. Lagunas (1994) 8 Cal.4th 1030. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 116, 132

People v. Lai (2006)138 Cal.App.4th 1227. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 163

People v. Lamas (2007) 42 Cal.4th 516. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78, 82

People v. Landaverde (2007)157 Cal.App.4th 28. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

People v. Landon (DEPUBLISHED); FORMERLY AT: (2010) 183 Cal.App.4th 1096. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59

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People v. Langston (2004)33 Cal.4th 1237. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91, 93

People v. Lara (2012) 54 Cal.4th 896. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63, 147

People v. Latimer (1993)5 Cal.4th 1203. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 125, 128

People v. Law (2011) 195 Cal.App.4th 976. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102

People v. Lawrence (2000)24 Cal.4th 219. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 130

People v. Le (2006)136 Cal.App.4th 925. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 124, 187

People v. Le (2012) 205 Cal.App.4th 739. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84

People v. Le (2015) 61 Cal.4th 416. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87

People v. Leffel (1987)196 Cal.App.3d 1310. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 169

People v. Leggett (2013) 219 Cal.App.4th 846. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 223

People v. Leon (2016) 243 Cal.App.4th 1003. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87

People v. Lester (2013) 220 Cal.App.4th 291. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 224

People v. Lewis (2004)120 Cal.App.4th 837. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 155

People v. Lewis (2013) 216 Cal.App.4th 468. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 223

57

People v. Lewis (2013) 222 Cal.App.4th 108. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36

People v. Linarez REVIEW DISMISSED; FORMERLY AT: (2007) 155 Cal.App.4th 1393. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 154

People v. Lincoln DEPUBLISHED; FORMERLY AT: (2006) 144 Cal.App.4th 1016. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 202

People v. Lisea (2013) 213 Cal.App.4th 408. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103

People v. Lo Cicero (1969) 71 Cal.2d 1186. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61, 147

People v. Lochtefeld (2000)77 Cal.App.4th 533. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99

People v. LoCicero (1969)71 Cal.2d 1186. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61

People v. Looney (2004)125 Cal.App.4th 242. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 129

People v. Lopez (2004)119 Cal.App.4th 132. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 121, 185

People v. Lopez (2005) 34 Cal.4th 1002. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75, 79, 82, 140

People v. Lopez (2005)129 Cal.App.4th 1508. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 193

People v. Lopez (2010) 188 Cal.App.4th 474. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 194

People v. Lopez (2015) 236 Cal.App.4th 518. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 239, 250

People v. Lopez (2015) 238 Cal.App.4th 177. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 252

58

People v. Losa (2014) 232 Cal.App.4th 789. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 234

People v. Louie (2012) 203 Cal.App.4th 388. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 136

People v. Love (2008) 166 Cal.App.4th 1292. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 157

People v. Lowe (2007)40 Cal.4th 937. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

People v. Lozano (2007)150 Cal.App.4th 1304. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

People v. Lozano (2016) 243 Cal.App.4th 1126. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43

People v. Luansing (2009) 176 Cal.App.4th 676. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 209

People v. Lucas (2013) 214 Cal.App.4th 707. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 158

People v. Luckett (1996)48 Cal.4th 1214. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

People v. Luna (2003)113 Cal.App.4th 395. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 119

People v. Luna (2012) 209 Cal.App.4th 460. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 186

People v. Lynall (2015) 233 Cal.App.4th 1102. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 249

People v. Lynch (REHEARING; REVIEW DENIED: FORMERLY AT: (2012) 209 Cal.App.4th 353. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 146

People v. Lynn (2015) 242 Cal.App.4th 594. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 240

59

People v. Lyons (1958)50 Cal.2d 245. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 218

People v. Maharaj (2012)204 Cal.App.4th 641. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

People v. Maki (1985)39 Cal.3d 707. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 166

People v. Maldonado (2005)134 Cal.App.4th 627. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77

People v. Mancebo (2002)27 Cal.4th 735. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101, 184

People v. Manchel (2008)163 Cal.App.4th 1108. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 209

People v. Manfredi (2008)169 Cal.App.4th 622. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 218

People v. Manila (2006)139 Cal.App.4th 589. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93

People v. Manning (2014) 226 Cal.App.4th 1133. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 227

People v. Margarejo (2008) 162 Cal.App.4th 102. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79

People v. Marks (1927)83 Cal.App. 370. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 203

People v. Marks (2015) 243 Cal.App.4th 331. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 260

People v. Marquez (2003) 30 Cal.4th 14. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52, 66

People v. Martin (2005)133 Cal.App.4th 776. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 124

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People v. Martin (2011) 51 Cal.4th 75. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 155

People v. Martin (2013) 222 Cal.App.4th 98. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

People v. Martinez (1995)37 Cal.App.4th 1589. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

People v. Martinez (1999)76 Cal.App.4th 489. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 157

People v. Martinez (2000)22 Cal.4th 750. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

People v. Martinez (2004)116 Cal.App.4th 753. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74

People v. Martinez (2005)127 Cal.App.4th 1156. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 178

People v. Martinez (2005)132 Cal.App.4th 531. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76

People v. Martinez (2005)36 Cal.4th 384. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 161, 163

People v. Martinez (2007)156 Cal.App.4th 851. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 128

People v. Martinez (2008)161 Cal.App.4th 754. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 129, 217

People v. Martinez (2012) 208 Cal.App.4th 197. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84

People v. Martinez (2014) 226 Cal.App.4th 1169. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 108

People v. Martinez (2015) 240 Cal.App.4th 1006. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 167

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People v. Mason (2002)96 Cal.App.4th 1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74, 113, 221

People v. Mason (2014) 232 Cal.App.4th 335. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 218

People v. Mason (DEPUBLISHED): FORMERLY AT: (2012) 206 Cal.App.4th 1026. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 196

People v. Mauch (2008) 163 Cal.App.4th 669. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 157

People v. McCoy (2007)156 Cal.App.4th 1246. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 189, 190

People v. McCoy (2015) 239 Cal.App.4th 431. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 254

People v. McCray (2006)144 Cal.App.4th 258. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71, 73, 92

People v. McCullough (2013) 56 Cal.4th 589. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 198

People v. McEwan (2007)147 Cal.App.4th 173. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56

People v. McFarland (1989) 47 Cal.3d 798. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 131, 133, 139

People v. McFearson REVIEW GRANTED THEN TRANSFERED TO FIFTHDISTRICT (SEE INFRA) Formerly at: (2008)

158 Cal.App.4th 810. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92

People v. McGee (2006)38 Cal.4th 682. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 8, 119

People v. McGinnis (2001)87 Cal.App.4th 592, 595.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46

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People v. McQueen (2008) 160 Cal.App.4th 27. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 184

People v. Medeiros (1994)25 Cal.App.4th 1260. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 165

People v. Medrano (2008)161 Cal.App.4th 1514. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

People v. Meeks (2004) 123 Cal.App.4th 695. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29, 31, 127, 207

People v. Meloney (2003)30 Cal.4th 1145. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72, 95

People v. Mendez (1999)19 Cal.4th 1084. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 165, 166, 176

People v. Mendez (2007)151 Cal.App.4th 861. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56

People v. Mendez (2010) 188 Cal.App.4th 47. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29, 30

People v. Mendoza (1997) 59 Cal.App.4th 1333. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 136

People v. Mendoza (2009) 171 Cal.App.4th 1142. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54, 166

People v. Mendoza (2015) 241 Cal.App.4th 764. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 153

People v. Meneses (2011) 193 Cal.App.4th 1084. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

People v. Mercado (2013) 216 Cal.App.4th 67. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 107

People v. Mesa (1975)14 Cal.3d 466. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 188

63

People v. Mesa (2012) 54 Cal.4th 191. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 138, 140

People v. Mgebrov (2008) 166 Cal.App.4th 579. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 174

People v. Miles (2013) 220 Cal.App.4th 432. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67

People v. Miller (1977)18 Cal.3d 873. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 121, 122, 137

People v. Miller (2006)145 Cal.App.4th 206. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 173

People v. Miller (2008) 164 Cal.App.4th 653. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15, 21

People v. Milligan REHEARING GRANTED; FORMERLY AT: (2008) 166 Cal.App.4th 1208. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 207

People v. Miralrio (2008) 167 Cal.App.4th 448. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57

People v. Misa (2006) 140 Cal.App.4th 837. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71, 73, 92

People v. Mitchell (2001)26 Cal.4th 181. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 188

People v. Mitchell (2004)118 Cal.App.4th 1145. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46

People v. Moberly (2009) 176 Cal.App.4th 687. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

People v. Modiri (2006)39 Cal.4th 481. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89

People v. Moffett (DEPUBLISHED); FORMERLY AT: (2012) 209 Cal.App.4th 1465. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

64

People v. Monarrez (1998)66 Cal.App.4th 710. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 129

People v. Moniz (2006)129 Cal.App.4th 421. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 179

People v. Monjaras (2008) 164 Cal.App.4th 1432. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99, 102

People v. Montes (2003)31 Cal.4th 350. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81, 101, 117

People v. Montoya (2004)33 Cal.4th 1031. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 125

People v. Montrose (2013) 220 Cal.App.4th 1242. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 150

People v. Moon (2011) 193 Cal.App.4th 1246. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51

People v. Mora (2013) 214 Cal.App.4th 1477. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 148

People v. Morales (2015) 238 Cal.App.4th 42. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 252

People v. Morelos (2008)168 Cal.App.4th 758. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 217

People v. Moreno (2003) 109 Cal.App.4th 571. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 170

People v. Moreno (2013) 218 Cal.App.4th 846. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 149

People v. Morgan (2011) 194 Cal.App.4th 79. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117

People v. Moringlane (1982)127 Cal.App.3d 811. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76, 123

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People v. Morris (1979)97 Cal.App.3d 358.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58

People v. Morris (2015) 242 Cal.App.4th 94. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 258

People v. Morton (2007)152 Cal.App.4th 323. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

People v. Morton (2008) 159 Cal.App.4th 239. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

People v. Moseley (2008)164 Cal.App.4th 1598. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 129, 130

People v. Mosely (2015) 60 Cal.4th 1044. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

People v. Mosley (2007)155 Cal.App.4th 313. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

People v. Mosley (DEPUBLISHED); FORMERLY AT: (2010) 188 Cal.App.4th 1290. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 210

People v. Muhammad (2007)157 Cal.App.4th 484. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 129, 132, 217

People v. Munoz (2007)155 Cal.App.4th 160. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 154

People v. Munoz (2009)178 Cal.App.4th 468. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 100

People v. Murillo (2011) 201 Cal.App.4th 1382. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 136

People v. Murphy (2001)25 Cal.4th 136. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90

People v. Murphy (2007)154 Cal.App.4th 979. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 127

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People v. Murray (2007)155 Cal.App.4th 149. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46

People v. Murray (2012) 203 Cal.App.4th 277. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

People v. Musovich (2006)138 Cal.App.4th 983. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 206

People v. Mustaffa (1994)22 Cal.App.4th 1305. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 135, 205

People v. Myers (2009) 170 Cal.App.4th 512. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 158

People v. Myers (2016) Cal.App.4th , reported on March 28, 2016, in 2016 Los Angeles Daily Journal 2559

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People v. Navarro (2007) 40 Cal.4th 668. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 246

People v. Neely (2004)124 Cal.App.4th 1258. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105

People v. Neely (2009)176 Cal.App.4th 787. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 220

People v. Nelson (1987) 194 Cal.App.3d 77.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104

People v. Nettles (2015) 240 Cal.App.4th 402. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 240

People v. Newton (2007) 155 Cal.App.4th 1000. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 139

People v. Newton (2010) 189 Cal.App.4th 314. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 110, 134

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People v. Nguyen (1993)13 Cal.App.4th 114. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 171, 179

People v. Nguyen (1999)21 Cal.4th 197. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 203

People v. Nguyen (2005)130 Cal.App.4th 350. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 47

People v. Nguyen (2009) 46 Cal.4th 107. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 120

People v. Nichols (2009) 176 Cal.App.4th 428. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17, 29

People v. Nichols (2016) 244 Cal.App.4th 681. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 262

People v. Nilsen (1988)199 Cal.App.3d 344. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 193

People v. Nilsson (2015) 242 Cal.App.4th 1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 144

People v. Nitschmann (2010) 182 Cal.App.4th 705. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 215

People v. Nordberg (2010)189 Cal.App.4th 1228. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 114

People v. Noriega (2004)124 Cal.App.4th 1334. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 214

People v. Norman (2003)109 Cal.App.4th 221. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 156

People v. Norton (DEPUBLISHED); FORMERLY AT: (2010) 184 Cal.App.4th 408. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60

People v. Noyan (2014) 232 Cal.App.4th 657. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 152

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People v. Nubla (1999)74 Cal.App.4th 719. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46, 56

People v. Nunez (2008) 167 Cal.App.4th 761. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48

People v. Nunez (2011)200 Cal.App.4th 578. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83

People v. Nunez (2013) 220 Cal.App.4th 1527. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53

People v. Nunez (DEPUBLISHED): FORMERLY AT: (2011) 195 Cal.App.4th 414. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

People v. Nychay (DEPUBLISHED); FORMERLY AT: (2011) 193 Cal.App.4th 771. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62

People v. Oakley (2013) 216 Cal.App.4th 1241. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 111

People v. Oates (2004) 32 Cal.4th 1048. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77, 98, 122, 123, 129, 135, 140

People v. Ochoa (2009) 175 Cal.App.4th 859. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 168

People v. Ochoa (2011) 192 Cal.App.4th 562. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 155

People v. Oehmigen (2014) 232 Cal.App.4th 1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 233

People v. Oganesyan (1999)70 Cal.App.4th 1178. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

People v. Ogg (2013) 219 Cal.App.4th 173. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 198

People v. Orabuena (2004)116 Cal.App.4th 84. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 175

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People v. Orin (1975)13 Cal.3d 937. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 172

People v. Ornelas (2005)134 Cal.App.4th 485. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 215

People v. Orozco (2011)199 Cal.App.4th 189. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 195

People v. Orozco (2012) 209 Cal.App.4th 726. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 168

People v. Orozco (2016) 244 Cal.App.4th 65. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 261

People v. Ortega (1998)19 Cal.4th 686. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76, 125, 184, 216

People v. Ortiz (2016) 243 Cal.App.4th 854. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 261

People v. Osuna (2014) 225 Cal.App.4th 1020. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 225

People v. Ottombrino (1982)127 Cal.App.3d 574. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 220

People v. Otubuah (REVIEW DISMISSED); FORMERLY AT: (2010) 184 Cal.App.4th 422. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60

People v. Pacheco (2010) 187 Cal.App.4th 1392. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 193, 195, 196, 198

People v. Pacheco (2011)194 Cal.App.4th 343. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62

People v. Packard (1982)131 Cal.App.3d 622. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 135

People v. Page (2015) 241 Cal.App.4th 714. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 256

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People v. Palacios (2005)126 Cal.App.4th 859. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76, 124

People v. Palacios (2007)41 Cal.4th 720. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 126, 135, 136

People v. Palafox (2014) 231 Cal.App.4th 68. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40

People v. Palmer (2001)86 Cal.App.4th 440. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

People v. Palmer (2005)133 Cal.App.4th 1141. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98, 99

People v. Palmer (2006)142 Cal.App.4th 724. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 120

People v. Palmore (2000)79 Cal.App.4th 1290. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 124

People v. Panizzon (1996)13 Cal.4th 68. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 165

People v. Park (2013) 56 Cal.4th 782. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 159

People v. Parker (1967)255 Cal.App.2d 664. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 129

People v. Parodi (2011) 198 Cal.App.4th 1179. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 181

People v. Payne (2014) 232 Cal.App.4th 579. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 234

People v. Peacock (2015) 242 Cal.App.4th 708. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 259

People v. Pearson (1986)42 Cal.3d 351. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 126, 189

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People v. Pedroza (2014) 231 Cal.App.4th 635. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 143

People v. Peneda (1995)32 Cal.App.4th 1022. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 112

People v. Peoples (2016) 62 Cal.4th 178. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44

People v. Percelle (2005)126 Cal.App.4th 164. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 160

People v. Peregina-Larios (1994)22 Cal.App.4th 1522. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 127

People v. Perez (1979)23 Cal.3d 545. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 130, 133, 137

People v. Perez (2013) 214 Cal.App.4th 49. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

People v. Perez (2015) 239 Cal.App.4th 24. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 254

People v. Perkins (2016) Cal.App.4th , reported on January 27, 2016, in 2016 Los Angeles Daily Journal 833

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People v. Perkins (2016) 244 Cal.App.4th 129. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 261

People v. Perry (2007)154 Cal.App.4th 1521. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 128

People v. Perry (2016) 244 Cal.App.4th 1251. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 264

People v. Peterson (1973)9 Cal.3d 717. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 160

People v. Pham (2009) 180 Cal.App.4th 919. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

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People v. Phillips (2010) 186 Cal.App.4th 475. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 192, 194

People v. Philpot (2004)122 Cal.App.4th 893. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50, 61

People v. Picado (2004)123 Cal.App.4th 1216. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 122

People v. Picklesimer (2010) 48 Cal.4th 330. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 210, 212

People v. Pinon (2015) 238 Cal.App.4th 1232. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 253

People v. Pirali (2013) 217 Cal.App.4th 1341. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 170

People v. Pitto (2008) 43 Cal.4th 228. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95

People v. Pitts (1990)223 Cal.App.3d 1547. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 134

People v. Ponce (2009) 173 Cal.App.4th 378. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 219

People v. Poroj (2010) 190 Cal.App.4th 165. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 107

People v. Poslof (2004)119 Cal.App.4th 215. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70

People v. Poslof (2005)126 Cal.App.4th 92. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

People v. Povio (2014) 227 Cal.App.4th 1424. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 200

People v. Powell (2011) 194 Cal.App.4th 1268. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 135

73

People v. Prather (1990)50 Cal.3d 428. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92, 93

People v. Prescott (2013) 213 Cal.App.4th 1473. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 148

People v. Presley (2007)156 Cal.App.4th 1027. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

People v. Pruitt (2008)161 Cal.App.4th 637. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52

People v. Puente (2008)165 Cal.App.4th 1143. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58

People v. Quinones (2014) 228 Cal.App.4th 1040. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 230

People v. Quintanilla (2009) 170 Cal.App.4th 406. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

People v. Rabanales (2008) 168 Cal.App.4th 494. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

People v. Rahbari (2014) 232 Cal.App.4th 185. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 152

People v. Rajanayagam (2012) 211 Cal.App.4th 42. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65

People v. Ramirez (1987)189 Cal.App.3d 603. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 130

People v. Ramirez (2010) 184 Cal.App.4th 1233. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103

People v. Ramirez (2013) 219 Cal.App.4th 655. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34, 36

People v. Ramirez (2014) 224 Cal.App.4th 1078. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67

74

People v. Ramirez (DEPUBLISHED): FORMERLY AT: (2011) 193 Cal.App.4th 613. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

People v. Ramirez and Villarreal (2016) 244 Cal.App.4th 800. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88

People v. Ramon (2009) 175 Cal.App.4th 843. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 132

People v. Ramos (1990)50 Cal.App.4th 81. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48

People v. Ramos (2004)121 Cal.App.4th 1194. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74, 113

People v. Randall REVIEW DISMISSED; FORMERLY AT : (2007) 155 Cal.App.4th 228. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 215

People v. Ranscht (2009)173 Cal.App.4th 1369. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 208, 209, 211

People v. Ratcliff (1990)223 Cal.App.3d 1401. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 134

People v. Ravaux (2006)142 Cal.App.4th 914. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55

People v. Reaves (1974)42 Cal.App.3d 852.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96

People v. Reece (2013) 220 Cal.App.4th 204. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 149

People v. Reed (2005)129 Cal.App.4th 1281. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 110

People v. Reed (2006)38 Cal.4th 1224. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 125, 127

People v. Reeder (1984)152 Cal.App.3d 900. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

75

People v. Reeves (2005)35 Cal.4th 765. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48

People v. Retanan (2007)154 Cal.App.4th 1219. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

People v. Reyes (2007)150 Cal.App.4th 735. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

People v. Reyes (2008) 165 Cal.App.4th 426. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51

People v. Richardson (1978)83 Cal.App.3d 853.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 135

People v. Ringo (2005)134 Cal.App.4th 870. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90

People v. Rios (2013) 222 Cal.App.4th 542. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 200

People v. Rivas-Colon (2015) 241 Cal.App.4th 444. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 256

People v. Rivera (2015) 233 Cal.App.4th 1085. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 249

People v. Robertson (2009) 174 Cal.App.4th 206. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 191

People v. Robertson (2012) 208 Cal.App.4th 965. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 219

People v. Robinson (2012) 208 Cal.App.4th 232. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84

People v. Robinson (2012) 209 Cal.App.4th 401. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 196

People v. Robinson (DEPUBLISHED); FORMERLY AT: (2011) 194 Cal.App.4th 672. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 135

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People v. Robles (2000)23 Cal.4th 1106. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78, 154

People v. Rodriguez (1988)206 Cal.App.3d 517. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76, 123

People v. Rodriguez (1999)20 Cal.4th 1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99

People v. Rodriguez (2005)129 Cal.App.4th 1401. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20, 184

People v. Rodriguez (2007)157 Cal.App.4th 14. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 128

People v. Rodriguez (2009) 47 Cal.4th 501. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80, 84, 85

People v. Rodriguez (2012) 207 Cal.App.4th 332. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 185

People v. Rodriguez (2012) 55 Cal.4th 1125. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83, 85

People v. Rodriguez (2015) 233 Cal.App.4th 1403. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 236

People v. Rodriguez (2015) 235 Cal.App.4th 1000. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 144

People v. Rodriguez (DEPUBLISHED); FORMERLY AT: (2010) 183 Cal.App.4th 1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59

People v. Rodriquez (1990)51 Cal.3d 437. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 167

People v. Romanowski (2015) 242 Cal.App.4th 151. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 258

People v. Romero (2006)140 Cal.App.4th 15. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 25, 61, 70, 77, 78, 203

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People v. Romo (1975)14 Cal.3d 189, 196.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

People v. Root (2016) 245 Cal.App.4th 353. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 266

People v. Rosales (2014) 222 Cal.App.4th 1254. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67

People v. Rouse (2016) 245 Cal.App.4th 292. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 265

People v. Rouser (1997)59 Cal.App.4th 1065. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 217

People v. Rubics (2006)136 Cal.App.4th 452. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 162

People v. Ruff (2016) 244 Cal.App.4th 935. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 263

People v. Ruiloba (2005)131 Cal.App.4th 674. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 113

People v. Rusconi (2015) 236 Cal.App.4th 273. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72, 238

People v. Russell (2010)187 Cal.App.4th 981. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

People v. Russo (2001)25 Cal.4th 1124. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 218

People v. Ryan (2006)138 Cal.App.4th 360. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 129, 217, 218

People v. Saelle (1995)35 Cal.App.4th 27. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 191

People v. Saetern (2014) 227 Cal.App.4th 1456. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40

78

People v. Sage (1980)26 Cal.3d 498. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56

People v. Salvador (2016) 244 Cal.App.4th 741. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88

People v. Sanchez (2001)24 Cal.4th 983. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69, 127

People v. Sanchez (2009) 179 Cal.App.4th 709. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 133, 138

People v. Sanchez (2014) 223 Cal.App.4th 1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85

People v. Sanders (1997)52 Cal.App.4th 175. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

People v. Sanders (2003)111 Cal.App.4th 1371. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 128

People v. Sanders (2009) 170 Cal.App.4th 1236. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46

People v. Sanders (2010) 189 Cal.App.4th 543. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117

People v. Sanders (2012) 55 Cal.4th 731. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 140

People v. Sanders OPINION VACATED (2010) 182 Cal.App.4th 1626. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 220

People v. Sandoval (1994)30 Cal.App.4th 1288, 1302. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

People v. Sandoval (2007)41 Cal.4th 825. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 11-13, 15, 17, 18, 21

People v. Sanghera (2006)139 Cal.App.4th 1567. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 156

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People v. Sargent (1978)86 Cal.App.3d 150.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27, 106

People v. Sasser (2015) 61 Cal.4th 1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91

People v. Sayers REVIEW GRANTED TRANSFERRED BACK TO SECONDDISTRICT, DIVISION 4: Formerly at: (2007) 150 Cal.App.4th 1040. . . . . . . . . 5

People v. Scarbrough (2015) 240 Cal.App.4th 916. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 255

People v. Scheer (1998)68 Cal.App.4th 1009. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 107

People v. Schoeb (2005) 132 Cal.App.4th 861. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 164, 190, 197

People v. Schoenbachler (2012) 203 Cal.App.4th 1382. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 136

People v. Schoppe-Rico (2006)140 Cal.App.4th 1370. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77

People v. Schuler (1977)76 Cal.App.3d 324.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55

People v. Scott (1993)17 Cal.App.4th 1383. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 173

People v. Scott (1994)9 Cal.4th 331. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17, 23, 63, 73, 124

People v. Scott (1996)14 Cal.4th 544. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98

People v. Scott (2013) 216 Cal.App.4th 848. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 149

People v. Scott (2014) 58 Cal.4th 1415. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 151

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People v. Scott (2015) 235 Cal.App.4th 397. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42

People v. Segura (2008) 44 Cal.4th 921. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 205

People v. Segura (2015) 239 Cal.App.4th 1282. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 255

People v. Selga (2008) 162 Cal.App.4th 113. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 169, 219

People v. Sellner (2015) 240 Cal.App.4th 699. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 255

People v. Seminoff (2008)59 Cal.App.4th 518. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 221

People v. Sencion (2012) 211 Cal.App.4th 480. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 197

People v. Sengpadychith (2001) 26 Cal.4th 316. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78, 114

People v. Serrato (1973)9 Cal.3d 753. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 116, 126, 132

People v. Serrato (1988)201 Cal.App.3d 761. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 156

People v. Seymour (2015) 239 Cal.App.4th 1418. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 166

People v. Shabazz (2006)38 Cal.4th 55. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97

People v. Shabazz (2015) 237 Cal.App.4th 303. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 251

People v. Shadden (DEPUBLISHED); FORMERLY AT: (2007) 150 Cal.App.4th 137. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

81

People v. Sharret (2011) 191 Cal.App.4th 859. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 194, 196, 197, 199

People v. Sheehy (2014) 225 Cal.App.4th 445. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 151

People v. Shelton (2006)37 Cal.4th 759. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 205

People v. Shepherd (2007)151 Cal.App.4th 1193. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 166

People v. Sherow (2015) 239 Cal.App.4th 875. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 255

People v. Short (2008)160 Cal.App.4th 899. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 163, 164

People v. Siackasorn (2012) 211 Cal.App.4th 909. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

People v. Sinclair (2008) 166 Cal.App.4th 848. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 100

People v. Singh (2011) 198 Cal.App.4th 364. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 210

People v. Sizemore (2009) 175 Cal.App.4th 864. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 180

People v. Skiles (2011) 51 Cal.4th 1178. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 120

People v. Skinner (1985)39 Cal.3d 765. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

People v. Slattery (2008) 167 Cal.App.4th 1091. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 163

People v. Sledge (2015) 235 Cal.App.4th1191. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 237, 249

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People v. Sloan (2007)42 Cal.4th 110. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 126, 131

People v. Smart (2006)145 Cal.App.4th 1216. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98, 102

People v. Smit (2014) 224 Cal.App.4th 977. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103

People v. Smith (1945)26 Cal.2d 854. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 218

People v. Smith (1989)211 Cal.App.3d 523. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58

People v. Smith (2007)150 Cal.App.4th 89. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94

People v. Smith (2010) 191 Cal.App.4th 199. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 218

People v. Smith (2015) 234 Cal.App.4th 1460. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 237

People v. Snow (2003)105 Cal.App.4th 271. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 185

People v. Snow (2012) 205 Cal.App.4th 953. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 155

People v. Snow (2013) 219 Cal.App.4th 1148. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 198

People v. Sok (2010)181 Cal.App.4th 88. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81, 101

People v. Solis (2001)90 Cal.App.4th 1002. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 122, 124

People v. Solis (2014) 224 Cal.App.4th 727. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38

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People v. Solis (2015) 232 Cal.App.4th 1108. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 247

People v. Solis (2016) Cal.App.4th , reported on March 25, 2016, in 2016 Los Angeles Daily Journal 2819

.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 267

People v. Sorenson (2005)125 Cal.App.4th 612. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 187, 193

People v. Soria (2010) 48 Cal.4th 58. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 165, 197

People v. Soto (2014) 228 Cal.App.4th 967. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 230

People v. Speight (2014) 227 Cal.App.4th 1229. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40

People v. Stanley (2012) 54 Cal.4th 734. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 164

People v. Stanphill (2009) 170 Cal.App.4th 61. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 167

People v. Stewart (2004)117 Cal.App.4th 907. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 190

People v. Stone (2004) 123 Cal.App.4th 153. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 219

People v. Strong (2006)138 Cal.App.4th Supp. 1.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 181

People v. Stuart (2008)159 Cal.App.4th 312. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

People v. Stuckey (2009) 175 Cal.App.4th 898. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 220

People v. Stump (2009) 173 Cal.App.4th 1264. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52

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People v. Sullivan (2013) 217 Cal.App.4th 242. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 116

People v. Sun (2007)157 Cal.App.4th 277. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98, 106

People v. Superior Court (Alvarez) (1997)14 Cal.4th 968. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71

People v. Superior Court (Brooks) (2008) 159 Cal.App.4th 1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

People v. Superior Court (Burton) (2015) 232 Cal.App.4th 1140. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 235

People v. Superior Court (Cervantes) (2014) 225 Cal.App.4th 1007. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 225

People v. Superior Court (Duval) (1988)198 Cal.App.3d 1121. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27, 106

People v. Superior Court (Flores) 223 Cal.App.4th 1535. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37

People v. Superior Court (Jalalipour) (2015) 232 Cal.App.4th 1199. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 159

People v. Superior Court (Kaulick) (2013) 215 Cal.App.4th 1279. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 222

People v. Superior Court (Kirby) (2003)114 Cal.App.4th 287. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 183

People v. Superior Court (Pomilia) (1991)235 Cal.App.3d 1464. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96

People v. Superior Court (Rangel) (2016) 243 Cal.App.4th 992. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 242

People v. Superior Court (Romero) (1996)13 Cal.4th 497. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71, 82

85

People v. Superior Court (Scofield) (1967)249 Cal.App.2d 727. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 204

People v. Superior Court (Shamis) (1997)58 Cal.App.4th 833. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102

People v. Superior Court (Smith) (S158084)Nonpublished opinion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 216

People v. Superior Court (Williams) (2015) 232 Cal.App.4th 1149. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 235

People v. Takencareof (1981)119 Cal.App.3d 492. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

People v. Tanner (2005)129 Cal.App.4th 223. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 178, 179

People v. Tarris (2009) 180 Cal.App.4th 612. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 133

People v. Tassell (1984)36 Cal.3d 77. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

People v. Taylor (2003)105 Cal.App.4th 1394. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 181

People v. Taylor (2004)118 Cal.App.4th 11. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75

People v. Thiessen (2012) 202 Cal.App.4th 1397. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103

People v. Thoma (2007)150 Cal.App.4th 1096. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 118

People v. Thomas (2012) 211 Cal.App.4th 987. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

People v. Thompson (2009) 180 Cal.App.4th 974. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 133

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People v. Thompson (2015) 243 Cal.App.4th 413. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 260

People v. Thurman (2005)125 Cal.App.4th 1453. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 177

People v. Thurston (2016) 244 Cal.App.4th 644. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 242

People v. Tillman (2000)22 Cal.4th 300. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 195

People v. Tillotson (2007)157 Cal.App.4th 517. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 12, 21, 23

People v. Tinker (2013) 212 Cal.App.4th 1502. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66, 140

People v. Tirey (2013) 221 Cal.App.4th 549. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 212

People v. Tirey (2014) 225 Cal.App.4th 1150. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 213

People v. Tittle (2015) 234 Cal.App.4th 452. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 236

People v. Todd (1994)30 Cal.App.4th 1724. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90

People v. Tokash (2000)79 Cal.App.4th 1373. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 110

People v. Toloy (2015) 239 Cal.App.4th 1116. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 214

People v. Torres (2005)127 Cal.App.4th 1391. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47

People v. Torres (2008) 163 Cal.App.4th 1420. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 205

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People v. Torres (2011) 198 Cal.App.4th 1131. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18, 50

People v. Torres (2012) 212 Cal.App.4th 440. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65

People v. Torres (2013) 213 Cal.App.4th 1151. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 147

People v. Toscano (2004)124 Cal.App.4th 340. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 171

People v. Totari (2002) 28 Cal.4th 876. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 223

People v. Towne (2008) 44 Cal.4th 63. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

People v. Townsend (1998)62 Cal.App.4th 1390. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90

People v. Tran (2011) 51 Cal.4th 1040. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 135

People v. Tran (2015) 242 Cal.App.4th 877. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 160

People v. Trask (2011) 191 Cal.App.4th 387. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 168

People v. Trevino (1985)39 Cal.3d 667. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 126

People v. Triplett (2016) 244 Cal.App.4th 824. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 262

People v. Trujillo (2006)40 Cal.4th 165. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 118, 119

People v. Trujillo (2015) 60 Cal.App.4th 850. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 201

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People v. Tubbs (2014) 230 Cal.App.4th 578. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 231

People v. Tuck (2012) 204 Cal.App.4th 724. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 211, 212

People v. Turner (2002)96 Cal.App.4th 1409. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 195

People v. Turner (2007)155 Cal.App.4th 1432. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52

People v. Uffelman (2015) 240 Cal.App.4th 195. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 202

People v. Ulloa (2009)175 Cal.App.4th 405. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79, 117

People v. Urke (2011) 197 Cal.App.4th 776. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54

People v. Valdez (2010) 189 Cal.App.4th 82. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 107

People v. Valdez (2011) 193 Cal.App.4th 1515. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 185

People v. Valencia (2008) 166 Cal.App.4th 1392. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 190

People v. Valencia (2014) 232 Cal.App.4th 514. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 233, 235, 248

People v. Valencia (2016) Cal.App.4th , reported on March 17, 2016, in 2016 Los Angeles Daily Journal 2530

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People v. Valenti (2016) 243 Cal.App.4th 1140. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50

People v. Valenzuela (2009) 172 Cal.App.4th 1246. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 191

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People v. Valenzuela (2011)199 Cal.App.4th 1214. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83

People v. Valenzuela (2013) 220 Cal.App.4th 159. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 199

People v. Valenzuela (2016) 244 Cal.App.4th 692. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 262

People v. Vargas (1990)223 Cal.App.3d 1107. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 58

People v. Vargas (2007)148 Cal.App.4th 644. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57

People v. Vargas (2014) 59 Cal.4th 635. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71

People v. Vargas (2016) 243 Cal.App.4th 1416. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 261

People v. Vasilyan (2009)174 Cal.App.4th 443. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 219

People v. Vasquez (2015) 239 Cal.App.4th 1512. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 201

People v. Vasquez (REVIEW DISMISSED); FORMERLY AT : (2006) 136 Cal.App.4th 898. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 124

People v. Vega (2005)130 Cal.App.4th 183. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 111

People v. Vega (2013) 214 Cal.App.4th 1387. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85

People v. Vega (2014) 222 Cal.App.4th 1374. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 150

People v. Vela (2012) 205 Cal.App.4th 942. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 114

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People v. Velasquez (2007)152 Cal.App.4th 1503. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

People v. Venegas (1970)10 Cal.App.3d 814.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 134

People v. Verba (2012) 210 Cal.App.4th 991. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65

People v. Verlinde (2002) 100 Cal.App.4th 1146. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 107, 108, 139

People v. Vidaurri (1980)103 Cal.App.3d 450. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 134

People v. Villalobos (2012) 54 Cal.4th 177. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 197, 198

People v. Viray (2005)134 Cal.App.4th 1186. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 193

People v. Vizcarra (2015) 236 Cal.App.4th 422. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 204

People v. Voit (2011) 200 Cal.App.4th 1253. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 196, 198, 199

People v. Voravongsa (DEPUBLISHED); FORMERLY AT: (2011) 197 Cal.App.4th 657. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62

People v. Vu (2006) 143 Cal.App.4th 1009. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 133

People v. Vy (2004)122 Cal.App.4th 1209. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75

People v. Walker (1991)54 Cal.3d 1013. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 164, 186, 189

People v. Wallace (2003)109 Cal.App.4th 1699. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 219

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People v. Wallace (2004)120 Cal.App.4th 867. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 186, 189, 190

People v. Wallace (2004)33 Cal.4th 738. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69

People v. Wallace (2009)176 Cal.App.4th 1088. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 209

People v. Walz (2008)160 Cal.App.4th 1364. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 189, 191

People v. Wandick (2004)115 Cal.App.4th 131. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 175

People v. Wardell (2008) 162 Cal.App.4th 1484. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96

People v. Warner (2006)39 Cal.4th 548. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90

People v. Warner (2007)155 Cal.App.4th 57. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98

People v. Warner (2008)166 Cal.App.4th 653. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98, 99

People v. Wasbotten (2014) 225 Cal.App.4th 306. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19, 200

People v. Washington (2002)100 Cal.App.4th 590. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 193

People v. Watson (2008)43 Cal.4th 652. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50

People v. Watts (2005)138 Cal.App.4th 959. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 153

People v. Waymire (2007)149 Cal.App.4th 1448. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

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People v. Weatherton (2015) 238 Cal.App.4th 676. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 155

People v. Weaver (2007) 149 Cal.App.4th 1301. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 107, 108

People v. Weber (DEPUBLISHED); FORMERLY AT: (2010) 185 Cal.App.4th 337. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60

People v. Weeks (2014) 224 Cal.App.4th 1045. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93

People v. Wensinger (2012) 204 Cal.App.4th 90. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 137

People v. West (1984)154 Cal.App.3d 100. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62

People v. Westbrook (2002)100 Cal.App.4th 378. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62

People v. Wheeler (2005)127 Cal.App.4th 873. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 178, 179

People v. Whitaker (2015) 238 Cal.App.4th 1354. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68

People v. White (1987)188 Cal.App.3d 1128. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 110

People v. White (2005)133 Cal.App.4th 473. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97

People v. White (2014) 223 Cal.App.4th 512. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 224

People v. White (2015) 237 Cal.App.4th 1087. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 144

People v. White (2016) 243 Cal.App.4th 1354. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 243

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People v. Whitmer (2014) 59 Cal.4th 733. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 142

People v. Wilcox (2013) 217 Cal.App.4th 618. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 149

People v. Williams (1992)10 Cal.App.4th 827. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52

People v. Williams (1998)17 Cal.4th 148. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25, 70, 71

People v. Williams (2004)120 Cal.App.4th 209. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 121, 217

People v. Williams (2004)34 Cal.4th 397. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 71, 73, 92, 111

People v. Williams (2007)156 Cal.App.4th 898. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 165

People v. Williams (2009) 171 Cal.App.4th 1667. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 208

People v. Williams (2013) 218 Cal.App.4th 1038. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105

People v. Williams (2014) 227 Cal.App.4th 733. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86

People v. Williams (2016) 245 Cal.App.4th 458. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 266

People v. Williams (DEPUBLISHED); FORMERLY AT: (2011) 197 Cal.App.4th 339. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

People v. Willie (2005)133 Cal.App.4th 43. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 187

People v. Willis (2013) 222 Cal.App.4th 141. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 159

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People v. Wills (2008) 160 Cal.App.4th 728. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 167

People v. Wilson (2008) 164 Cal.App.4th 988. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

People v. Wilson (2013) 219 Cal.App.4th 500. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

People v. Wilson (2013) 220 Cal.App.4th 962. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 150

People v. Windfield (2014) 228 Cal.App.4th 1406. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40

People v. Winson (1981)29 Cal.3d 711. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 166

People v. Winters (2001)93 Cal.App.4th 273. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 119

People v. Wood (1998)62 Cal.App.4th 1262. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 158

People v. Wood (2000)83 Cal.App.4th 862. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 107

People v. Woods (2008) 161 Cal.App.4th 1045. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 163

People v. Woods (2010) 191 Cal.App.4th 269. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85, 194, 197

People v. Woods (2015) 241 Cal.App.4th 461. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 109

People v. Woodworth (2016) Cal.App.4th , reported on March 31, 2016, in 2016 Los Angeles Daily Journal 3031

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People v. Woosley (2010)184 Cal.App.4th 1136. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 172

People v. Wooten (2013) 214 Cal.App.4th 121. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 140

People v. Wortham (2013) 220 Cal.App.4th 1018. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 224

People v. Wrice (1995)38 Cal.App.4th 767. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 173

People v. Wutzke (2002)28 Cal.4th 923. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 184

People v. Wynn (2010) 184 Cal.App.4th 1210. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 134

People v. Xinos (2011)192 Cal.App.4th 637. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 114

People v. Yanez (1995)38 Cal.App.4th 1622. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 162

People v. Yang (2010)189 Cal.App.4th 148. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102

People v. Ybarra (2008) 166 Cal.App.4th 1069. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15, 31

People v. Yearwood (2013) 213 Cal.App.4th 161. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 222, 223

People v. Yim (2007)152 Cal.App.4th 366. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

People v. Zackery (2007)147 Cal.App.4th 680. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 187

People v. Zarate (DEPUBLISHED); FORMERLY AT: (2011) 192 Cal.App.4th 939. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61

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People v. Zarazua (2008) 162 Cal.App.4th 1348. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99

People v. Zikorus (1983)150 Cal.App.3d 324. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 216

People v. Zito (1992)8 Cal.App.4th 736. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 184, 185, 204

Pompi v. Superior Court (1982)139 Cal.App.3d 503, 507-508. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46

Porter v. Superior Court (2009) 47 Cal.4th 125. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 116, 132

Porter v. Superior Court (2007)148 Cal.App.4th 889. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 125

Robert L. v. Superior Court (2003)30 Cal.4th 894. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79

Schinkel v. Superior Court (2014) 229 Cal.App.4th 935. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 231

Shoemaker v. Harris (2013) 214 Cal.App.4th 1210. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 212

Sons v. Superior Court (2004)125 Cal.App.4th 110. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 123

Stanley v. Superior Court (2012) 206 Cal.App.4th 265. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 116

Stone v. Superior Court (1982) 31 Cal.3d 503.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 116

T.W. v. Superior Court (2015) 236 Cal.App.4th 646. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 250

Teal v. Superior Court (2014) 60 Cal.4th 595. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 232

97

Wilkoff v. Superior Court (1985)38 Cal.3d 345. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 216

Williams v. Superior Court (2001)92 Cal.App.4th 612. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 119

Williams v. Superior Court (2014) 230 Cal.App.4th 636. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 152

Wofford v. Superior Court (2014) 230 Cal.App.4th 1023. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 152

98

FEDERAL CONSTITUTION

V.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 3, 222

VI. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1-3, 8-14, 16, 18, 21, 154, 167, 210, 220

VIII. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24-29, 31

XIV. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 26

CALIFORNIA STATUTES

Evidence Code Sections:

1221. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 119

730. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 220

Government Code Sections:

10373. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 192

29550.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 193, 196

29550.1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 193, 196

29550.2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 193

29550.2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 193, 196, 198

70353.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 192

70372.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 190, 191

70373.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 191, 192, 194, 195, 197, 200

76000.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 188-191

76104.6. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 190, 191

99

76104.7. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 190, 191

Health & Safety Code Sections:

11019.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46

11055.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 158

11350.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 158

11351.5. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94

11352.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 111, 134

11353.6. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90, 94

11357.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 168

11358.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 157

11359.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 129

11366.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 129, 175

11368.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 178

11370.1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 176

11370.2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 110, 111, 134, 180

11370.4. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 111, 112

11372.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 111, 112, 189

11372.5. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 194

11372.7. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 194, 197, 198

11378.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 129

11470.1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 161

100

11470.2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 161

25189.5. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 133

Penal Code Section:

1000. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 168, 176, 181

1023. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 115, 116, 126, 132

1118. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 123

1118.1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 126

11372.4. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 194

1147. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 115, 141

1149. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 115, 141

1161. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 115, 141

1164. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49

1170. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 15, 17, 18, 131, 135, 136, 165, 176, 205, 221

1170.1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20, 74, 80, 91, 100, 113, 132, 136, 173

1170.1, subdivision (g). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 108

1170.126. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 222, 223

1170.19. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 154

1170.9. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 221

1170, subdivision (h).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66, 135, 147-150

1181. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 116, 125, 132, 246

1191.1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 216

101

1192.5.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 215

1192.7. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74, 75, 79, 89, 90, 100, 105

1200. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 215

1202.05. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 155

1202.4. . . . . . . . . . . . . . . . . . . . . . . . . . . 161, 162, 164, 165, 174, 188, 190, 191, 193, 194

1202.44. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 161

1202.45. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 165, 188, 190

1202.5. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 189, 191-193

12021.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74, 94, 125, 157

12022.. . . . . . . . . . . . 20, 21, 47, 72, 80-83, 89, 93-107, 122, 123, 126, 128, 134-136, 221

12022.5. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84

12022.53. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102

12022.6. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104, 105

12022.7. . . . . . . . . . . . . . . 27, 47, 48, 89, 98, 105-107, 110, 121, 127, 130, 131, 158, 204

12022.8. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

12022.9. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 108

12025.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74, 77, 125

1203. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 155

1203.066.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 167, 168, 183

1203.067. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 212

1203.097. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 169

102

1203.1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 133, 169, 190, 191

1203.1b. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 195

1203.2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46, 165

1203.4. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 174

12031.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76-78, 132, 154

1204. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 215

1210. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 176, 177

1210.1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 175, 177, 178, 180, 181, 194

12101.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 217

1211. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 168

1214. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 187

12220.1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 179

1237.5. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

1265.7. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 190

136.1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18, 50, 105

136.2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 219

1376. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24, 26

1385. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61, 69-73, 78, 82, 92, 95, 175, 211

1464. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 188-191

1465.7. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 188, 189, 191

1465.8. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 165, 186, 189, 190, 192, 193, 195-197, 200

103

148. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 131, 171, 178

17. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 157, 158

186.10.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 112

186.22. . . . . . . . . . . . . . . . . 73-84, 100-102, 112, 113, 126, 128, 129, 135, 136, 154, 160

186.30. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74

187. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 134

190.2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97

203. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 134

21031.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 125

213, subd.(a)(1)(A). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 114

213, subdivision (a)(1)(A). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 114

213, subdivision (a)(1)(B). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 114

213, subdivision (b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 220

243. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 124, 127

245. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77, 80, 83, 100, 106, 126

246. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80, 81, 98, 101

261. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 218

269. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

273.5. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48, 126, 127

273a. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89

2800.2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79, 121, 131, 217

104

288. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23, 90, 167, 174, 183, 184, 211, 216

288.2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 135

288.7. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 135

289. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 210

290. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26, 28, 29, 183, 191, 206, 207, 209, 210, 222

290.006. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 211

290.013. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 222

290.3. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 189

290, subdivision (a)(1)(A). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 208

2900.5. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51, 52, 54, 55, 59, 63

2933. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46, 48, 51

2933.1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47-50, 61

2933.2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51

2933.5. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47

2933, subdivision (e). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66, 147

2935. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58

296. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 203

3041. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

3046. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35, 81, 82

3051. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34-36

311.11. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 218

105

314.1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 122, 217

346.3. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81

4.433. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 176

4019. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46, 49-51, 54, 56, 58-63

417. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117

422.7. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117, 219

4502. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

451.1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 131

4532. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

4573. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 181

470. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 129, 142, 218

4801. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

484g. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 157

496. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 157

550. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 137

594. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83

597. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94

646.9. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 129, 217

647. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

654. . . 48-51, 69, 76, 77, 80, 81, 83, 93, 104, 107, 110, 121-137, 187, 189, 195, 217, 220

656. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 222

106

664. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 134

667. . . . . . . . . . . . . . . . . . . . . . . . . . . . 17, 47, 58, 74, 90, 92, 101, 126, 131, 171, 203, 204

667.5. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17, 45, 47, 49, 71, 73, 91-93, 100, 111, 128

667.5, subdivision (a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50, 118

667.6. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21-23, 184

667.61. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 30, 100, 115, 132, 183-185, 204

667.71. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 184

667.9. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

667, subdivision (e)(2)(C). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 223

669. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98

69. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 124

793. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 222

803. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 113

954. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 125, 127

107

Vehicle Code Section:

10851.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 121

20001.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 107, 113, 114, 130, 131, 162

20002.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 114

20003.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 130

23152.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53, 177

Welfare and Institutions Code Section:

203. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62

3051. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45

3053. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46

730.6. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 162

731. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70, 206

CALIFORNIA RULES OF COURT

Rules:

4.406. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46

4.412(b).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 173

4.413. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 156

4.421. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 22, 23, 128

4.424. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 133

4.425. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

108

4.425(b)(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

4.435. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 167

8.54. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56

4.406. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41

4.412(b).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 160

4.413. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 143

4.421. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 21, 22, 119

4.424. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 124

4.425. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

4.425(b)(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

4.435. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 153

109

Gary M. MandinachCalifornia Appellate Project

I. APPRENDI, BLAKELY, BOOKER, BLACK, CUNNINGHAM

1. Blakely v. Washington (2004) 542 U.S. 296 [124 S.Ct. 2531, 159 L.Ed.2d403], the United States Supreme Court held that where the defendantwaived trial and pled guilty, the trial court’s upward departure from thesentencing range under Washington guidelines, based on facts notadmitted by defendant or found by jury violated constitutional right to trialby jury within the meaning of Apprendi.

2. People v. Black (2005) 35 Cal.4th 1238, the California Supreme Courtheld that the judicial factfinding that occurs when a judge exercisesdiscretion to impose an upper term sentence or consecutive terms underCalifornia law does not implicate a defendant’s Sixth Amendment right toa jury trial and as a result does not violate Apprendi, Blakely or UnitedStates v. Booker (2005) 543 U.S. 220 [160 L.Ed.2d 621, 125 S.Ct. 738].The court also found that Blakely is not violated by the jury not deciding ifa defendant should receive a consecutive sentence.

3. United States v. Booker (2005) 543 U.S.621, the Court addressed whetherthe Federal Sentencing Guidelines operated to violate the SixthAmendment right to a jury trial.

4. People v. Ferris NOT PUBLISHED ON THIS ISSUE: (2005) 130Cal.App.4th 773, the Fifth Appellate District held that Apprendi, whichextending the defendant’s right of trial by jury to all facts other than priorconvictions, which might increase sentence above what would otherwisebe the statutory maximum, does not alter the burden of proof on thequestion of insanity. California requirement that a defendant proveinsanity by a preponderance of the evidence, is constitutional.

5. People v. Buser (2005) 132 Cal.App.4th 1188, the Third Appellate Districtheld that the court did not violate the defendant’s Sixth Amendment rightto a jury trial by imposing an upper term sentence based on facts notproven to a jury beyond a reasonable doubt. The upper term, not middleterm, is considered the maximum sentence (People v. Black (2005) 35Cal.4th 1238, 1257), in limiting judicial authority to impose sentence inexcess of what would otherwise be the maximum based on facts notdetermined by jury.

1

6. People v. McGee (2006) 38 Cal.4th 682, the California Supreme Courtheld, in this 5-2 opinion, that in sentencing proceedings where thedefendant had two prior convictions for robbery under Nevada law, andthe elements of the Nevada crime differed from the elements of theCalifornia crime, in that the Nevada convictions did not qualify on theirface as convictions for purposes of sentence enhancement underCalifornia’s three strikes law, the trial court did not violate the defendant’sfederal constitutional right to jury trial in examining the record of the priorrobbery convictions to determine whether each of the offenses constituteda conviction of a serious felony. The dissent contends, that Apprendi v.New Jersey (2000) 530 U.S. 466, requires that the existence of any factincreasing a defendant’s sentence beyond the statutory minimum bedetermined by the jury base on proof beyond a reasonable doubt. Apprendi indicates that it decision in Almendarez-Torres v. United States(1998) 523 U.S. 224 [140 L.Ed.2d 350, 118 S.Ct. 1219] which found anexception to this rule to prove “facts of a prior conviction,” is arguablyincorrect. (Apprendi, supra, 530 U.S. at p. 489.) Given this statement, thedissent indicates that Apprendi should be construed narrowly, rather thanin the expansive manner in which it continues to interpret the law. Giventhe fact that the defendant never admitted the conduct underlying hisNevada convictions that are now being used to increase his sentence, heshould have been given a right to a jury trial on the issue. I predict theUnited States Supreme Court will grant certiorari either in this case or arelated matter.

7. People v. Jordan (2006) 141 Cal.App.4th 309, the Sixth Appellate Districtheld that the court did not abuse its discretion in imposing upper termsentence (see People v. Black (2005) 35 Cal.4th 1238), for second degreerobbery on basis that numerous aggravating factors, such as priorconvictions and indication of serious danger to society, outweighed singlemitigating factor of defendant’s good performance on parole.

8. Cunningham v. California (2007) 549 U.S. 270 [127 S.Ct. 856, 166L.Ed.2d 856], the United States Supreme Court held that the CaliforniaSupreme Court was once again wrong in a major sentencing determinationwhen it decided, in a 6-3 opinion, Blakely does apply to the currentCalifornia sentencing scheme, and as a result, that determinate by placingsentence-elevating factfinding within the province of the judge rather thanthe jury, violates the defendant’s right to trial by jury under the Sixth andFourteenth Amendments.

9. United States v. Blanton (9th Cir. 2007) 476 F.3d 767, the Ninth CircuitCourt of Appeal held that the Fifth Amendment’s Double Jeopardy Clause

2

bars government from appealing a district court’s allegedly erroneousdenial of an Armed Career Criminal Act sentencing enhancement. Doublejeopardy will attach if applicability of sentencing enhancement that wouldhave increased the defendant’s maximum sentence is not proven and thedefendant is acquitted. There is a good discussion of United States v.Tighe (9th Cir. 2001) 266 F.3d 1187 and its applicability followingBlakely v. Washington (2004) 542 U.S. 296 wherein there is an argumentthat a nonjury juvenile adjudication could not be a predicate offense forthe purpose of a federal sentencing enhancement because the underlyingconduct was never proven to a jury. This case calls into question theviability of Monge v. California (1998) 524 U.S. 721 [141 L.Ed.2d 615,118 S.Ct. 2246] [that double jeopardy does not apply to enhancements]. Here the court says that the test is to look behind the labels to theconstitutional commands governing the treatment of sentencingenhancements that increase the statutory maximum to which the defendantis otherwise exposed. To do otherwise is to undermine the 5th and 6thAmendments.

10. People v. Hernandez PETITION FOR REVIEW GRANTED, THENDISMISSED, REMANDED TO THIRD DISTRICT: formerly at: (2007)147 Cal.App.4th 1266, the Third Appellate District held that even underApprendi v. New Jersey (2000) 530 U.S. 466, Blakely v. Washington(2004) 542 U.S. 296, and Cunningham v. California (2007) 549 U.S.270 [127 S.Ct. 856, 166 L.Ed.2d 856], a defendant is not entitled to have ajury determine the facts upon which the trial court relies to imposeconsecutive as opposed to concurrent sentences. (See People v. Reeder(1984) 152 Cal.App.3d 900, 923.)

11. People v. Banks REVIEW GRANTED, TRANSFERRED TO FOURTHAPPELLATE DISTRICT DIVISION 3: FORMERLY AT: (2007) 149Cal.App.4th 969, the Fourth Appellate District, Division 3 held that thecourt’s finding that a combination of appellant’s prior criminal history and“recidivist-related factors” could not stand to support the upper term as thetrier of fact did not find them true beyond a reasonable doubt. As a result,the matter was remanded to the trial court for resentencing to determine ifthe upper term is warranted based on proof of appellant’s prior criminalrecord alone.

12. People v. Waymire REVIEW GRANTED; DISMISSED: FORMERLY AT:(2007) 149 Cal.App.4th 1448, the Third Appellate District held that thecourt did not err in sentencing appellant to the upper term onmethamphetamine manufacturing charge, after appellant violatedprobation. The Court of Appeal found no Blakely/Cunningham error in

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considering the fact that defendant’s prior convictions were numerous andof increasing seriousness rather than simply the fact of a prior conviction. It was also not err in to rely on the unsatisfactory performance onprobation where the defendant admitted he violated probation by failing tocontact his probation officer, failed to participate in a substance abusecounseling program, and possessed methamphetamine. The court’sreliance on the additional facts not admitted by the defendant nor provento a jury beyond a reasonable doubt that the defendant was on probation attime of the offense was harmless beyond a reasonable doubt where theabsence of those facts would not have made a material difference incourt’s determination. The court also found that there was no waiver orforfeiture, even though there was no objection in the trial court as theobjection would have been futile.

13. People v. Shadden (DEPUBLISHED); FORMERLY AT: (2007) 150Cal.App.4th 137, the Fifth Appellate District held that the imposition ofupper term based on facts found by judge rather than jury, followingCunningham, was not error where the court had exercised its discretionunder Romero, to strike a strike, and not impose a 25 to life term under theThree Strikes Law, which would have been a longer term of imprisonmentthan the imposition of the upper term.

14. People v. Diaz REVIEW GRANTED; TRANSFERRED TO SECONDAPPELLATE DISTRICT, DIVISION 7: FORMERLY AT: (2007) 150Cal.App.4th 254, the Second Appellate District, Division 7 held thatappellate did not waive or forfeit his Cunningham/Blakely challenge to anupper term sentence due to his lack of objection where such objectionwould have been futile based on Black. The jury’s implicit determinationthat the victim was incapable of resisting defendant’s sexual advances dueto intoxication or influence of a controlled substance could not be usedboth to find the defendant guilty of specific sexual offenses having use ofintoxication, anesthesia or a controlled substance as an element and to findthat defendant was “particularly vulnerable” for sentencing purposes. Judicial determination that crimes involved “great violence” and involved“great danger to society” because victim was forced into sex did notsupport upper term because such factors were inherent in the crimesthemselves. Imposition of the upper term based on aggravating factorsthat might not have been found by reasonable jury was prejudicial. Imposition of consecutive sentences based on judge’s finding that violentsex crimes were committed on separate occasions did not violate right totrial by jury where judge had the discretion to impose such sentencesregardless of any judicial factfinding. Where the upper term sentence wasreversed as violating right to trial by jury, and the court lacked discretion

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to impose upper term on remand because no aggravating factors wereadmitted by the defendant nor found true by the jury beyond a reasonabledoubt, nor did the defendant have any prior convictions, trial court wasrequired on remand to impose middle-term sentence.

15. People v. Reyes REVIEW GRANTED; DISMISSED: FORMERLY AT: FORMERLY AT: (2007) 150 Cal.App.4th 735, the Second AppellateDistrict, Division 7, held that the court properly imposed the upper termwithin the meaning of Blakely and Cunningham for first degree burglary,forcible rape and forcible oral copulation counts where the defendant hadat least three prior convictions, admitted multiple prior convictions on thestand, and admitted at trial he had been in prison and had just beenreleased at the time the present crimes were committed. The dissent byJustice Johnson would have sent the matter back to the trial court sincemultiple reasons were given for the upper term, and there was no showing,just as there were none in People v. Banks (2007) 149 Cal.App.4th 969,that the court necessarily would have imposed the upper term had it basedits decision on the defendant’s prior convictions alone.

16. People v. Sayers REVIEW GRANTED; TRANSFERRED BACK TOSECOND DISTRICT, DIVISION 4: FORMERLY AT: (2007) 150Cal.App.4th 1040, the Second Appellate District, Division 4 held thatthere was no Cunningham error where, based in part on the defendanthaving engaged in a pattern of violent conduct which indicates a seriousdanger to society, a determination by the court based on defendant’s pastand current convictions and admission that he had served a prior prisonterm. The imposition of upper term based on judicial fact-finding, whereerroneous, is not structural error and is subject to harmless-error analysis. (Washington v. Recuenco (2006) 548 U.S. 212 [165 L.Ed.2d 466, 126S.Ct. 2546].) The dissent by Justice Epstein indicated that the trial courtconsidered factors that were not proper, and the Court of Appeal shouldnot second-guess (see People v. Benevides (1998) 64 Cal.App.4th 728, 735[appellate court’s should not substitute their decision for that of the trialcourt]), what the court would have done if it knew it could only utilizerecidivist factors.

17. People v. Govan REVIEW GRANTED: TRANSFERRED BACK TOFOURTH DISTRICT, DIVISION I. FORMERLY AT: (2007) 150Cal.App.4th 1015, the Fourth Appellate District, Division 1 held that theimposition of upper term was error, based on Cunningham v. California(2007) 549 U.S. 270 [127 S.Ct. 856, 166 L.Ed.2d 856], and Apprendi v.New Jersey (2000) 530 U.S. 466, where the defendant’s prior convictionsfor crimes of increasing seriousness, his having committed the present

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offenses while on probation, and his unsatisfactory performance onprobation, none of which was admitted to by defendant or found by a jury,violated his right to trial by jury. Merely because there was evidence fromwhich a reasonable jury could necessarily have found aggravating factorsdoes not render the judge’s imposition of upper term based on thatevidence harmless. (See Washington v. Recuenco (2006) 548 U.S. 212[165 L.Ed. 2d 466, 126 S.Ct. 2546, 2549-2553].) Additionally, the courtheld that the issue was not waived for failure to object.

18. People v. Lozano REVIEW GRANTED; DISMISSED. FORMERLY AT: (2007) 150 Cal.App.4th 1304, the Second Appellate District, Division 4held that the court erred in basing an upper term sentence in part onnonrecidivist facts not submitted to a jury or admitted by the defendant istested under the harmless error rule of Chapman v. California (1967) 386U.S. 18 [17 L.Ed.2d 705, 87 S.Ct. 824]. It is not a structural errorrequiring automatic reversal. (See Washington v. Recuenco (2006) 548U.S.212; [165 L.Ed.2d 166, 126 S.Ct. 2546, 2549-2553].) The court erredin imposing upper term sentence for vandalism based not only ondefendant’s prior convictions but also on the circumstances of the crimeitself. However, the error was harmless where the uncontested evidenceshowed defendant’s vandalism consisted of multiple acts of damage to thevictim’s car, which individually were sufficient for a finding of malice tojustify high term.

19. People v. Fluker REVIEW GRANTED; TRANSFERRED TO SECONDDISTRICT, DIVISION 7. FORMERLY AT: (2007) 151 Cal.App.4th 515,the Second Appellate District, Division 7 held that the court’s impositionof upper term sentence based solely on its factual finding that defendant’sconduct in the courtroom constituted an escape attempt or disruption, anaggravating circumstance that did not involve a prior conviction and wasnot admitted by defendant or to jury, violated defendant’s constitutionalright to a jury trial pursuant to Cunningham. The court also found that itwas not harmless beyond a reasonable doubt within the meaning ofChapman.

20. People v. Abercrombie REHEARING GRANTED: FORMERLY AT: (2007) 151 Cal.App.4th 585, the Third Appellate District held that thecourt did not violate defendant’s constitutional right to jury trial within themeaning of Cunningham by basing his upper term sentence solely on thefact that he was on parole when he committed the crime, as parole is arecidivism factor that necessarily arises from a prior conviction and relatessolely to the defendant’s status as a repeat offender. The court justified its

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decision based primarily on Almendarez-Torres v. United States (1998)523 U.S. 224 [140 L.Ed.2d 350].

21. People v. English (2007) 151 Cal.App.4th 1216, the Fifth AppellateDistrict held that, within the meaning of Cunningham, that the impositionof the upper term without the jury findings as to aggravating factors didnot violate the federal constitutional right to trial by jury where the judgefound as an aggravating factor that defendant had “numerous” priorconvictions beyond those for which enhancements were imposed, but thecourt also indicated that the cruelty of the current offense played a role inthis decision. (See People v. Gonzalez (2006) 138 Cal.4th 932, 961, fn 6.) The court also hung its hat on the fact that Cunningham error is guided bythe harmless beyond a reasonable doubt standard, which the courtdetermined is the case here.

22. People v. Morton REVIEW GRANTED; DISMISSED: FORMERLY AT:(2007) 152 Cal.App.4th 323, the Fourth Appellate District, Division 3 heldthat the court’s imposition of the upper term did not violate Cunningham,where two of the three aggravating factors it found, first that the defendanthad numerous convictions as an adult beyond those that were alleged, and,two that he was on parole at the time of the instant offense, fell within“prior conviction” exception. Any error in treating the defendant’s“unsatisfactory” prior performance on parole as a third aggravating factorwas harmless in light of evidence that he committed several other crimeswhile on either probation or parole, and several additional parole andprobation violations.

23. Rita v. United States (2007) 551 U.S. 338 [168 L.Ed.2d 203, 127 S.Ct.2456], the United States Supreme Court held that the court of appeals mayapply a presumption of reasonableness to a sentence within the sentencingguidelines. While the district judge must consider nonfrivolous argumentsfor downward departure, guidelines sentence will be deemed reasonablewhere the court has listened to each of defendant’s arguments andconsidered the supporting evidence before finding those circumstancesinsufficient to warrant a sentence lower than the guidelines range. Asentence of 33 months in prison for making two false statements to a grandjury was not unreasonably harsh where it was at the bottom of theguidelines range, and the defendant’s asserted grounds for departure,which included, poor health, fear of retaliation based on prior employmentin law enforcement, and distinguished past military service, were not socompelling as to require a lesser sentence than would typically be imposedfor those crimes.

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24. People v. Yim (2007) 152 Cal.App.4th 366, the Second Appellate District,Division 6 held that the imposition of the upper-term did not violateCunningham or the Sixth Amendment right to jury trial where it was basedon the findings that the defendant was on parole at time of crime andperformed poorly on parole. The Court of Appeal found that the priorconviction exception is not limited to the bare fact of a defendant’s priorconviction, but, extends as well to the nature of that conviction, therebypermitting sentencing courts to determine whether the prior conviction isthe type of conviction that renders the defendant subject to an enhancedsentence. (People v. McGee (2006) 38 Cal.4th 682, 704.)

25. People v. Tillotson REVIEW GRANTED; TRANSFERRED TOFOURTH APPELLATE DISTRICT, DIVISION 3. FORMERLY AT:(2007) 152 Cal.App.4th 799, the Fourth Appellate District, Division 3 heldthat convictions for multiple drug offenses in a single trial is subject toonly one recidivist enhancement under Health and Safety Code section11370.2, subd. (c), since the court classifies this as a status enhancementwithin the meaning of People v. Tassell (1984) 36 Cal.3d 77, 90 andPeople v. Williams (2004) 34 Cal.4th 397, 402.)

26. People v. Velasquez (2007) 152 Cal.App.4th 1503, the Second AppellateDistrict, Division 7 held that the defendant forfeited his claim that thecourt’s imposition of upper-term was improper because it did not state itsreasons for selecting that term as he did not object in a timely manner. The court properly relied on fact that the defendant had served a priorprison term and that his prior adult convictions were numerous asaggravating factors in imposing an upper term for assault, along with arelated firearm enhancement. Once again, there is a dissenting opinion oneach of the above issues by Justice Johnson.

27. People v. Cardenas REHEARING GRANTED; REVIEW DENIED:NOW AT: (2007) 155 Cal.App.4th 14, the Second Appellate District,Division 7 held that imposition of the upper prison term based on thecourt’s finding that crime involved planning and sophistication violatedCunningham.

28. People v. Black (2007) 41 Cal.4th 799, the California Supreme Court heldthat the defendant did not forfeit his right to challenge on appeal theimposition of the upper term sentence by failing in trial court to request ajury trial on aggravating circumstances. Imposition of an upper termsentence does not violate a defendant’s Sixth Amendment right to a jurytrial under Cunningham, where at least one aggravating factor has beenestablished by the jury’s verdict, the defendant’s admissions, or the

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defendant’s prior convictions. Neither Cunningham nor the relevant priorhigh court decisions apply to the imposition of consecutive terms.

29. People v. Sandoval (2007) 41 Cal.4th 825, the California Supreme Courtheld that the court violated the defendant’s Sixth Amendment right underCunningham, where it imposed upper term sentence for voluntarymanslaughter citing aggravating circumstances that were based solely onthe facts underlying the crime. Such facts included the fact that the killinginvolved a great amount of violence; the defendant engaged in callousbehavior and lacked any concern regarding the consequences of heractions; the victims were particularly vulnerable because they wereunarmed, inebriated, and ambushed from behind; defendant was the“motivating force” behind the crimes; and defendant’s actions reflectedplanning and premeditation. The upper term was not based on thedefendant’s own admission, the jury’s verdict, or any prior convictions. The error was not harmless beyond a reasonable doubt, warranting reversalof upper term sentence, especially where the jury rejected theprosecution’s premeditation theory and found defendant guilty only ofvoluntary manslaughter indicates it would not have found the aggravatingcircumstances pertaining to her state of mind. However, on remand, thecourt has discretion to select either the upper, middle, and lower termswithout requiring a finding of aggravating and mitigating circumstances. The trial court will be required to specify reasons for its sentencingdecision, but, will not be required to cite “facts” that support its decisionor to weigh aggravating or mitigating circumstances. (See newly enactedPen. Code § 1170, subd. (c).) The court’s ruling will be subject to appealfor abuse of discretion. The court rejected the argument that the newscheme violates the prohibition of ex post facto laws. Unbelievably, theSupreme Court holds that since there is little impact on the defendant’ssentence (see Miller v. Florida (1987) 482 U.S. 423 reversed the sentencebased on an ex post facto violation), there is no ex post facto violation andthis case is distinguishable from Miller.

30. In re Christian G. (2007) 153 Cal.App.4th 708, the Second AppellateDistrict, Division 6 held that in calculating the theoretical maximum termof confinement for a juvenile for the purpose of committing him to theDepartment of Corrections and Rehabilitation, Division of Juvenile Justice(formerly the California Youth Authority), the juvenile court properlyconsiders the upper terms for both the underlying felony and anyapplicable enhancement, even if such terms could not be imposed on anadult offender in the absence of special jury findings. As a result,Cunningham and its progeny were not violated.

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31. People v. Retanan (2007) 154 Cal.App.4th 1219, the Third AppellateDistrict held that a court’s finding that Penal Code section 667.61, subd.(g), within the meaning of the “One-Strike” law, which provides that asingle enhanced sentence shall be imposed for offenses committed againsta single victim on a single occasion, does not apply to a particular casedoes not violate Blakely, nor do the consecutive sentences violateCunningham or Black II.

32. People v. Jefferson (2007) 154 Cal.App.4th 1381, the Third AppellateDistrict held that the court indicated that Cunningham and Blakely stillrecognize Almendarez-Torres, and therefore, People v. Kelii (1999) 21Cal.4th 452, which holds that the court makes the determination whetherthe defendant’s prior is a strike, has not yet been abrogated. Where thecourt agreed that the elderly victim enhancement within the meaning ofsection 667.9 should not be imposed because the defendant did notphysically harm the victim, did not brandish or use the knife he had in hispossession, and was motivated largely by his need for drugs, and becausesecond-strike sentence would constitute sufficient punishment,enhancement should have been stricken rather than stayed (People v.Luckett (1996) 48 Cal.4th 1214), and there is no reason to remand to thetrial court for further proceedings.

33. People v. Munoz (2007) 155 Cal.App.4th 160, the Third Appellate Districtheld that where the defendant pleaded guilty to attempted murder andadmitted possessing firearm during commission of offense in exchange fordismissal of numerous other charges, and the court, in sentencing thedefendant to the upper terms on the offenses, relied on defendant’svoluntary Harvey waiver. (See People v. Harvey (1979) 25 Cal.3d 754.) The defendant stipulated to the truth of facts relevant to upper terms andallegations underlying the dismissed charges; as a result, the sentence didnot violate defendant’s Sixth Amendment rights to a jury trial and proofbeyond a reasonable doubt under Cunningham.

34. People v. Ayala REVIEW GRANTED AND DISMISSED: FORMERLYAT: (2007) 155 Cal.App.4th 604, the Sixth Appellate District held theimposition of upper term sentence under Cunningham, which was basedon a judicial findings that the crimes involved “a high degree ofcallousness” and were carried out in a manner evidencing “planning andsophistication,” violated his Sixth Amendment right to trial by jury, andthe error was not harmless beyond a reasonable doubt where findings werebased solely on brief recitations in a probation report.

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35. People v. Brock REVIEW GRANTED AND DISMISSED: FORMERLYAT: (2007) 155 Cal.App.4th 903, the Second Appellate District, Division8 held that the imposition of the upper prison term based on aggravatingfactors including prior prison terms, poor performance on parole, andabusing trust by failing to return to prison, justified the high term underCunningham and Black II.

36. People v. Grayson REVIEW GRANTED AND DISMISSED:FORMERLY AT: (2007) 155 Cal.App.4th 1059, the First AppellateDistrict, Division 3 held that the court did not err by imposing the upperterm sentence based in part on the court’s finding that the defendant hadprior juvenile adjudications. Those adjudications are equivalent to acriminal conviction, and once the court determined that the defendant hasa prior conviction, it may consider other aggravating factors not found bythe jury or admitted by the defendant. The court rejected the positiontaken in Tighe and Nguyen which would have prohibited the use of thejuvenile prior as a strike or to justify the upper term. Statements in thepresentence probation report constituted sufficient evidence of thedefendant’s juvenile adjudications where the defendant knew that suchstatements would be considered for sentencing purposes and did notchallenge them in trial court.

37. People v. Presley (2007) 156 Cal.App.4th 1027, the Third AppellateDistrict held that Cunningham, Apprendi and Blakely are not violated doto the fact that public notification requirements of the sex offenderregistration laws are not punishment (see People v. Castellanos (1999) 21Cal.4th 254) for purposes of the Sixth Amendment, so the underlying factsneed not be found by a jury.

38. People v. Ibarra (2007) 156 Cal.App.4th 1174, the Fifth District held thatthe imposition of upper term does not under Sixth Amendment orCunningham, Black II and Sandoval, require a jury findings where theterm was based on prior felony and misdemeanor convictions.

39. People v. Landaverde (2007) 157 Cal.App.4th 28, the Second AppellateDistrict, Division 4 held that the court did not deprive the defendant of hisright to a jury trial pursuant to Cunningham, by imposing the upper termbased on the defendant’s admission that he had sexually molested hisdaughter over a continuous period. Even if the defendant was entitled to ajury trial on the sentencing, any error was harmless since there is noreasonable doubt that jury would have found at least one of theaggravating factors on which the trial judge relied to be applicable, andmaking him eligible under People v. Sandoval (2007) 41 Cal.4th 825, and

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Washington v. Recuenco (2006) 548 U.S. 212 [165 L.Ed. 2d 466, 126S.Ct. 2546, 2549-2553].

40. People v. Flores (2007) 157 Cal.App.4th 216, the Fourth AppellateDistrict, Division 3 held that the imposition of consecutive terms does notviolate the defendant’s Sixth Amendment rights because there is norequirement that the court find aggravating circumstances. (See People v.Black (2007) 41 Cal.4th 799, 821.)

41. People v. Tillotson (2007) 157 Cal.App.4th 517, the Fourth AppellateDistrict, Division 3 held that given the fact that the court mentioned thedefendant’s numerous prior convictions as one of the reasons for imposingthe upper term, it satisfied People v. Black (II) (2007) 41 Cal.4th 799,815-816.)

42. In re Alex U. (2007) 158 Cal.App.4th 259, the Fifth Appellate District heldthat Cunningham has no application to the juvenile court’s determinationof the theoretical maximum term of confinement. (See In re Christian G.(2007) 153 Cal.App.4th 708.) Any discrepancy between the theoreticalmaximum term as calculated by juvenile court and maximum term thatcould be imposed on an adult offender in absence of jury findings inaggravation does not violate equal protection guarantees since adult andjuvenile offenders are not similarly situated for this purpose. (See Peoplev. Romo (1975) 14 Cal.3d 189, 196; see also In re Robert D. (1979) 95Cal.App.3d 767, 774-775.)

43. People v. Curry (2008) 158 Cal.App.4th 766, the Third Appellate Districtheld that sentencing to upper term without permitting jury to decideaggravating factors beyond a reasonable doubt, pursuant to Cunningham,was error, but harmless since a jury would have been able to find at leastone aggravating circumstance using a beyond a reasonable doubt standard.

44. People v. Morton (2008) 159 Cal.App.4th 239, the Fourth AppellateDistrict, Division 3 held that the imposition of the upper prison term didnot violate his right under Black II and Sandoval where based on threeaggravating factors, (1) the existence of numerous prior convictions nototherwise used for enhancement, (2) the defendant’s being on parole at thetime of the offense, fall within the “prior conviction” exception to the juryright, and (3) that defendant’s prior performance on parole wasunsatisfactory, was beyond reasonable dispute.

45. People v. Garcia (2008) 159 Cal.App.4th 163, the Second AppellateDistrict, Division 6 held that the imposition of the upper prison term did

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not violate the defendant’s Sixth Amendment right to jury trial where hisrecord of numerous, increasingly serious convictions and parole violationswas an aggravating circumstance that warranted imposition of the upperterm.

46. People v. Superior Court (Brooks) (2008) 159 Cal.App.4th 1, the SecondAppellate District, Division 8 held that the prosecution may not amend theinformation to allege aggravating circumstances listed in California Rulesof Court, Rule 4.421 to secure a jury trial of those alleged aggravatingcircumstances. Such a procedure, while a constitutionally permissiblemeans of determining aggravating circumstances for sentencing purposes,is unauthorized by any statute or court rule. This court disagrees with theopposite conclusion drawn in Barragan v. Superior Court (2007) 148Cal.App.4th 1478.

47. People v. Stuart (2008) 159 Cal.App.4th 312, the Third Appellate Districtheld that it was not error under Black II and Sandoval for the for the courtto impose the upper-term sentence for rape based on a finding ofaggravated factors did not violate his constitutional rights underCunningham where one legally sufficient aggravating circumstance wasbased on his record of prior convictions. The issue to be determined ineach case is whether the trial court’s fact finding increased the sentencethat otherwise “could” have been imposed, not whether it raised thesentence above that which “would” have been imposed. (People v. Black(2007) 41 Cal.4th 799, 815.) Here the defendant had six priormisdemeanor convictions which qualified for the upper term under rule4.421(b)(2), which are numerous and of increasing seriousness.

48. People v. French (2008) 43 Cal.4th 36, the California Supreme Court heldthat where the defendant challenged the court’s imposition of an upperterm sentence after he entered a plea of no contest pursuant to a pleaagreement for a maximum term of 18 years, he did not need to obtain acertificate of probable cause under section 1237.5 since a certificate is notrequired when a defendant only asserts errors in the proceedings conductedfor the purpose of determining the degree of the crime and the penalty tobe imposed, and defendant did not challenge the validity of the pleaagreement. Where the defendant waived his right to a jury trial on thesubstantive charges against him, entered a plea of no contest, andstipulated to the factual basis for his plea, he neither waived his right to ajury trial on aggravating circumstances nor admitted facts that establishedan aggravating circumstance, thus imposition of a upper term sentenceviolated defendant’s right to a jury trial. Because an express waiver ofdefendant’s constitutional right was required, the defendant did not forfeit

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his claim challenging his aggravated sentence by failing to raise it in trialcourt, and the constitutional error was not harmless beyond a reasonabledoubt. When asked by the trial court whether counsel believed there was asufficient factual basis for the no contest pleas, counsel stated, ‘I believethe People have witnesses lined up for this trial that will support what theD.A. read in terms of the factual basis, and that’s what they’ll testify to.’ Indeed, counsel was careful to state that he agreed that witnesses wouldtestify to the facts as recited by the prosecutor; he did not stipulate that theprosecutor’s statements were correct. Under the circumstances of thiscase, defense counsel’s stipulation to the factual basis cannot reasonablybe construed as an admission by the defendant sufficient to satisfy theSixth Amendment requirements established in Cunningham.

49. People v. Garcia (2008) 161 Cal.App.4th 475, the Second AppellateDistrict, Division 1 held that in ruling on whether to grant discretionaryrelief from lifetime sex offender registration requirement, the court erredin its conclusion that it should not consider circumstances subsequent todefendant’s conviction. Cunningham is not violated by the jury notdeciding whether appellant should have to register.

50. People v. Medrano (2008) 161 Cal.App.4th 1514, the Third AppellateDistrict held that where the court suspended an upper-term sentence afterthe defendant pled no-contest, but subsequently reinstated it after he wasconvicted for another crime, the defendant’s objection to the imposition ofthe upper term within 60 days of reinstatement, rather than within 60 daysof original sentencing, was timely. (People v. Barnett (1995) 35Cal.App.4th 1, 2-3 [any other determination of the issue would bepremature].) The defendant’s objection that the court’s imposition oforiginal sentence, which relied on facts which the court had originallyrelied upon, including the fact that the defendant had been on probation attime original crime was committed, violated his Sixth Amendment right tohave facts found by jury was without merit where probation was evidenceof other convictions, and defendant did not contest that he was onprobation.

51. People v. Towne (2008) 44 Cal.4th 63, the California Supreme Court heldthat the imposition of the upper term sentence based on an aggravatingcircumstance that the defendant served a prior prison term or was onprobation or parole at the time the crime was committed does not, underSixth Amendment, nor Cunningham and Black II, require a jury trial onthe facts underlying the aggravating circumstance. With regard toimposition of upper term, the aggravating circumstance that thedefendant’s prior performance on probation or parole was unsatisfactory

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may be determined by a judge, so long as that determination is based uponthe defendant’s record of one or more prior convictions. Where the courthas found an aggravating circumstance that permits imposition of an upperterm sentence, it may exercise its discretion in favor of such a sentencebased on a factual finding that is supported by substantial evidence, but isinconsistent with jury’s verdict on other counts. The court specificallydisapproved of People v. Takencareof (1981) 119 Cal.App.3d 492, 498. As a result, the trial court did not commit statutory or constitutional errorin finding, for sentencing purposes, that the victim was put in fear, eventhough the only offense of which he was convicted was “joyriding” andthe defendant was acquitted of other charges involving force or fear as anelement.

52. People v. Miller (2008) 164 Cal.App.4th 653, the Second AppellateDistrict, Division 4 held that the trial court can sentence appellant underthe new sentencing law, even though the offense occurred before it wasannounced since there is no ex post facto violation within the meaning ofPeople v. Sandoval (2007) 41 Cal.4th 825, 857.

53. People v. Wilson (2008) 164 Cal.App.4th 988, the Third Appellate Districtheld that the trial court did not err where it used the defendant’s multipleprior convictions and continued drug abuse as justifications for imposingan upper-term sentence within the meaning of newly amended section1170, subdivision (b) (amended through SB 40), and the sentence did notinfringe upon defendant’s constitutional right to jury trial pursuant toPeople v. Black (2007) 41 Cal.4th 799, 816 (Black II).

54. People v. Esquibel (2008) 166 Cal.App.4th 539, the Second AppellateDistrict, Division 8 held that the imposition of upper prison term forassault with a firearm, based on aggravating factors found by judge ratherthan jury, violated defendant’s right to a jury trial, but the violation washarmless beyond a reasonable doubt where any reasonable jury would havefound the same aggravating factors, that victims, unarmed persons firedupon without provocation while visiting a public park with their smallchildren, were especially vulnerable, and that the crime involved a highdegree of callousness and a high degree of violence. (People v. Sandoval(2007) 41 Cal.4th 825, 839.)

55. People v. Ybarra (2008) 166 Cal.App.4th 1069, the Fifth AppellateDistrict held that where the trial court imposed the aggravated prison termsbased upon multiple factors, only one of which was found by a jury, thedefendant’s right to a trial by jury on the sentencing factors was violated,within the meaning of Cunningham, requiring resentencing at which trial

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court would have discretion to impose any lawful sentence. The trialcourt’s imposition of consecutive, rather than concurrent, terms based onjudicial fact finding did not violate Cunningham. Trial court erred inimposing parole revocation fines on defendants whose sentences madethem ineligible for parole. (People v. Oganesyan (1999) 70 Cal.App.4th1178, 1183-1186.)

56. People v. Baughman (2008) 166 Cal.App.4th 1316, the Third AppellateDistrict held that the imposition of the upper prison term on basis ofaggravating factors in violation of Cunningham, was error, was harmlessbeyond a reasonable doubt where one of the aggravating factors was abuseof trust, and no reasonable juror would have found otherwise given thatthe defendant was the victim’s father, that he repeatedly abused her, thatthe crimes were generally committed when other members of thehousehold were away or asleep, and that defendant, when caught on oneoccasion, denied what he had done.

57. People v. Rabanales (2008) 168 Cal.App.4th 494, the Fourth AppellateDistrict, Division 2 held that the defendant was not entitled to a trial byjury or a finding of guilt beyond a reasonable doubt on the question ofwhether he violated the conditions of his release under People v. Vargas(1990) 223 Cal.App.3d 1107, know as a Vargas waiver, whereby trialcourt reserved the right to impose sentence in excess (e.g., 7 years) of thatotherwise bargained for (e.g., one year county jail and 4 years suspended),if he violated specified conditions prior to sentencing. At a preliminaryhearing the court found sufficient evidence that the defendant committedspousal battery based on the testimony of the victim, the mother of thedefendant’s children, by hitting her a couple of times, causing a black eyeand injured ribs, together with corroborating testimony by witnesses whosaw her injuries, was sufficient to support trial court’s finding, of aviolation of the Vargas waiver, and the condition that he commit no newcrime, under a preponderance of the evidence standard, thereby permittingthe increased sentence, and such a finding did not violate Apprendi,Blakely or Cunningham.

58. Oregon v. Ice (2009) 555 U.S. 160 [172 L.Ed.2d 517, 129 S.Ct. 711] theUnited States Supreme Court held that the Sixth Amendment within themeaning of Apprendi and Blakely, does not prohibit states from assigningfinding of facts necessary to impose consecutive rather than concurrentsentences for multiple offenses to judges instead of juries.

59. In re Gomez (2009) 45 Cal.4th 650, the California Supreme Court heldthat Cunningham did not apply on collateral review of a judgment that

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became final before Cunningham was decided, but after Blakely, becauseCunningham did not extend or modify the rule established in Blakely, butmerely applied it to the California sentencing scheme. Cunninghamapplies retroactively to any case to which the judgment was not final whenthe decision in Blakely was issued.

60. People v. Hamlin (2009) 170 Cal.App.4th 1412, the Third AppellateDistrict held that the trial court erred in imposing upper terms on thedefendant’s convictions for making a criminal threat and inflictingcorporal injury on a spouse, pursuant to Cunningham, as there were nospecific facts to justify the upper term for those acts.

61. People v. Jones (2009) 178 Cal.App.4th 853, the Fourth AppellateDistrict, Division 2 held that imposition of the upper term based onaggravating factors listed in probation report did not violate Cunningham,where the sentence was based on statutory amendment to section 1170,subdivision (b), permitting trial court to exercise its discretion in selectingupper, middle, or lower term. Application of amendment to DeterminateSentencing law to crime committed before amendment took effect did notviolate constitutional prohibitions against ex post facto laws, nor did itprejudice defendant, who could have received upper term because one ofthe aggravating factors was that defendant was on probation when hecommitted the new crime.

62. People v. Nichols (2009) 176 Cal.App.4th 428, the Third AppellateDistrict held that the court was not required under Apprendi, Cunninghamor People v. Jefferson (2007) 154 Cal.App.4th 1381 to submit the issue ofthe prior prison term allegations (§ 667.5, subd. (b)) or the serious felonyprior convictions (§ 667, subd. (a)(1)), to the jury.

63. People v. Moberly (2009) 176 Cal.App.4th 687, the Fifth AppellateDistrict held that the imposition of the upper prison term for voluntarymanslaughter plus the upper-term for a firearm enhancement based onsame aggravating factor, that defendant was a prior convicted felon inpossession of a firearm and ammunition, is not an unlawful dual use offacts; therefore the trial court can use the same factor to give theaggravated term on the substantive count, and on the enhancement asprovisions on the use of the facts are limited under People v. Scott (1994)9 Cal.4th 331, 350. Neither section 1170 nor the California Rules of Courtattempts to provide an inclusive list of aggravating circumstances. Thusthe trial court is free to base an upper term sentence upon any aggravatingcircumstance the trial court deems significant and is applicable to thematter. (See People v. Sandoval (2007) 41 Cal.4th 825.)

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64. People v. Pham (2009) 180 Cal.App.4th 919, the Fourth AppellateDistrict, Division 3 held that the upper term sentence, based on judge'sfinding that defendant took advantage of special position of trust, did notviolate Sixth Amendment right to trial by jury where imposed underamended section 1170, subdivision (b), which eliminated midtermpresumption and permits trial court to impose upper term withoutadditional fact-finding. (See People v. Sandoval (2007) 41 Cal.4th 825,843-858.) Therefore, Cunningham and Apprendi do not apply.

65. In re Watson (2010) 181 Cal.App.4th 956, the Fourth Appellate District,Division 1 held that Apprendi v. New Jersey (2000) 530 U.S. 466established a new rule of constitutional procedure which was the premisefor the demise of California’s determinate sentencing law inCunningham v. California (2007) 549 U.S. 270, (at least until theenactment of SB 40.) Given the fact that the petitioner’s conviction wasstill on direct appeal when Apprendi was decided, the upper termsimposed by the trial court, based on sentencing factors not found true by ajury beyond a reasonable doubt, were required to be reduced to no morethan the middle term. The court also held that petitioner's claim wastimely as he was sentenced under an unconstitutional statute. (In reRobbins (1998) 18 Cal.4th 770, 780 [pertaining to the timeliness of thepetition and successive claims].

66. People v. Torres (2011) 198 Cal.App.4th 1131, the Sixth AppellateDistrict held that the trial court erred in imposing upper prison term forwitness dissuasion under section 136.1, subdivision (c)(1), since such termis permissible only where the dissuasion was by force or threat, and jurymade no such finding. (See Blakely v. Washington (2004) 542 U.S. 296,303; see also Cunningham v. California (2007) 549 U.S. 270, 281.) Thejury was never asked to find a violation under subdivision (c)(1), onlyunder (b)(1), which is a wobbler and not a straight felony with a high termof four years. That is an alternative penalty scheme, and due process wasviolated. (See People v. Palmer (2001) 86 Cal.App.4th 440, 444 [itviolates fundamental notion of due process do deem a defendant convictedof an offense on which the jury was never instructed.])

67. People v. Kramis (2012) 209 Cal.App.4th 346, the Second AppellateDistrict, Division 5 held that Southern Union Co. v. United States (2012)567 U.S. , [132 S. Ct. 2344], which held that where a statute requiredthat amount of fine be determined by number of days on which adefendant was in violation, the defendant had a Sixth Amendment right tohave the number of days determined by the jury pursuant to Apprendi v.New Jersey (2000) 530 U.S. 466, 490, does not give that defendant a right

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to have jury set amount of restitution fine under former section 1202.4,subdivision (b)(1), as the amount of the fine is entirely within judicialdiscretion as long as it is within the proscribed statutory range, herebetween $200, and $10,000. The minimum amount of the fine wasincreased from $200 to $240, January 1, 2012.

68. People v. Wilson (2013) 219 Cal.App.4th 500, the Sixth Appellate Districtheld that the trial court erred in doubling appellant's sentence for a DUIbased on a prior manslaughter conviction since the trial court violatedApprendi v. New Jersey (2000) 530 U.S. 466, and People v. McGee (2006)38 Cal.4th 682; see also Shepard v. United States (2005) 544 U.S. 13,where the court did not find that appellant personally inflicted great bodilyinjury. In fact appellant disputed the relevant facts of his conduct, and hisplea to the offense did not admit that element. The trial court did not findthat appellant personally inflicted great bodily injury. In fact, appellantdisputed the relevant facts of his conduct, and his plea to the offense didnot admit that element. As a result, since the jury could have found that areasonable doubt that the defendant personally inflicted great bodilyinjury, the error was not harmless. (See Wilson v. Knowles (9th Cir. 2011)638 F.3d 1213, 1216.)

69. People v. Wasbotten (2014) 225 Cal.App.4th 306, the Fourth AppellateDistrict, Division 2 held that the defendant does not have a constitutionalright to trial by jury pursuant to Blakely v. Washington (2004) 542 U.S.296, [124 S.Ct. 2531, 159 L.Ed.2d 403 and Apprendi v. New Jersey (2000)530 U.S. 466 to have the jury determine the amount of victim restitution. (See Southern Union v. United States (2012) 567 U.S. [183 L.Ed.2d318] [pertaining to fines and not fees]; see also People v. Pagan (2013)213 Cal.App.4th 574, 585-586.)

70. People v. Mosely (2015) 60 Cal.4th 1044, the California Supreme Courtheld that a discretionary order, based on findings made by a judge and notby a jury, that a convicted criminal defendant register as a sex offender,thus subjecting the defendant to registered sex offender residencyrestrictions imposed by Proposition 83, under section 3003.5, subdivision(b), does not violate the constitutional right to trial by jury as set forth inApprendi v. New Jersey (2000) 530 U.S. 466. Over the dissent by JusticeLui, who indicated that the majority answered a constitutional question,when it could have been avoided by answering a statutory issue, which ishighly irregular. (See People v. Williams (1976) 16 Cal.3d 663, 667 [thiscourt will not reach constitutional questions unless absolutely required todo so].) When there is a statutory basis for resolving a cawse, we will notrender a decision on constitutional grounds. (NBC Subsidiary (KNBC-TV,

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Inc) v. Superior Court (1999) 20 Cal.4th 1178, 1190.) Justice Liu, joinedby Justice Werdeger find that in the context of an Apprendi claim, does notmean the residency restriction cannot validly be imposed on persons whoare required to register under section 290.006, but it does mean the factsauthorizing imposition of the restriction must be proven to a jury beyond areasonable doubt. Here, the residency restriction is a penalty exceedingthe maximum Mosely would receive if punished according to the factsreflected in the jury verdict alone, which was guilty of simple assaultunder section 240, but not guilty of a violation of section 288, subdivision(a) [lewd act on a minor under 14].)

II. CONSECUTIVE V. CONCURRENT SENTENCING

1. People v. Hill (2004) 119 Cal.App.4th 1192, the First Appellate District,Division 3, held that section 1170.1, subd. (a), which permits the court toimpose consecutive prison terms for each subordinate term, and “shallinclude one-third of the term imposed for any specific enhancementsapplicable to those subordinate offenses,” gives the court the discretion toimpose a gun-use enhancement equal to one-third the upper term forsubordinate offense to which the enhancement applies. (See also People v.Sandoval (1994) 30 Cal.App.4th 1288, 1302.)

2. People v. Griffin (2005) 128 Cal.App.4th 1112, the First AppellateDistrict, Division 3 held that section 12022.1 applies regardless of whetherthe offense in which bail was posted is alleged to have occurred inCalifornia or in another state. The sentence imposed for the crimecommitted while on bail must be imposed to run consecutive to thesentence imposed for the crime in which bail was posted.

3. People v. Rodriguez (2005) 129 Cal.App.4th 1401, the Fourth AppellateDistrict, Division 2, held that the trial court erred when it believed that itdid not have the discretion to impose concurrent terms for multipleconvictions under the one strike law within the meaning of section 667.61.

4. People v. Lowe (2007) 40 Cal.4th 937, the California Supreme Court heldthat where the defendant claims a speedy trial violation, he must establishthat the delay harmed his ability to defend against the charged crime. Where the prosecution filed criminal charges against defendant, some fivemonths earlier, but did not notify him thereof until he had completed a jailterm in a neighboring county for a probation violation, and there was noevidence that delay impaired defendant’s ability to defend against thecharges, he could not establish prejudicial delay simply by showing that helost the chance to serve any sentence stemming from the pending charges

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concurrently with the jail term he was already serving on the probationviolation. The state right to a speedy trial arises upon the filing of thecomplaint, whereas the federal right comes into play when the informationor indictment is filed. Here appellant had complaint of a violation underthe state constitution. An uncommonly long delay triggers a presumptionof prejudice under the federal constitution, but not under the stateconstitution. (People v. Martinez (2000) 22 Cal.4th 750, 756-766.) As aresult of the foregoing, the decision in People v. Martinez (1995) 37Cal.App.4th 1589, is overruled.

5. People v. Mosley (2007) 155 Cal.App.4th 313, the Second District,Division 5 held that where the defendant was convicted of multiple,in-custody offenses, including several counts of making terrorist threatsand one count of possession of a weapon, and court designated one of thethreats counts as the principal count, it was error to impose full-termconsecutive sentence on the weapon count. Even though the defendantmust be sentenced consecutively pursuant to section 4502, there is noterm, unlike in section 667.6 that permits full term consecutive sentencing,and the sentence must be 1/3 the middle term on the consecutive sentence.

6. People v. Tillotson (2007) 157 Cal.App.4th 517, the Fourth AppellateDistrict, Division 3 held that the matter must be remanded for the court tostate its reasons for imposing enhancements under section 12022.1consecutive. When prison sentences are imposed on multiple secondaryoffenses and one primary offense, section 12022.1 subd. (e) requires onlythe sentence on one secondary count to be imposed consecutively to thesentence on the primary count, and the court has the discretion to imposethe sentences on the remaining secondary counts to run concurrently orconsecutively.

7. People v. Miller (2008) 164 Cal.App.4th 653, the Second AppellateDistrict, Division 4 held that to impose a consecutive sentence on thehit-and-run conviction based on the conclusion that the crime was of“great violence,” the trial court was required to specify the act or acts ofviolence to which it referred. The trial court can sentence appellant underthe new sentencing law, within the meaning of People v. Sandoval (2007)41 Cal.4th 825, 857.

8. People v. Gamble (2008) 164 Cal.App.4th 891, the Sixth AppellateDistrict held that a consecutive prison term is not mandatory for a felonyescape in violation of section 4532, subdivision (a)(1). A consecutivesentence is mandated under subdivisions (a)(2), (b)(1) and (b)(2) pursuantto the language of those sections, but that same language is not written into

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subdivision (a)(1), and subdivision (c) only applies to a sentence imposedunder “that” subdivision, it is only discretionary to impose a consecutivesentence under subdivision (a)(1), and therefore, it must be remanded tothe superior court for the court to exercise its discretion. (See People v.Downey (2000) 82 Cal.App.4th 899, 912.) If the record had shown thatthe court would have not exercised its discretion, or would have been anidle act, then a remand would not have been necessary. (See People v.Sanders (1997) 52 Cal.App.4th 175, 178.)

9. People v. Quintanilla (2009) 170 Cal.App.4th 406, the Second AppellateDistrict, Division 5 held that in and of itself, the age of the rape victim wasan insufficient factor in aggravation to justify a sentencing enhancementwhere victim was 13. (See Calif. Rules of Court, rule 4.425(b)(3).) However, the victim’s age was relevant to the victim’s vulnerability andabuse of trust; therefore, the trial court did not abuse its discretion infinding the defendant’s exploitation of the friendly relationship hemaintained with victim’s family, an aggravating factor. (See Calif. Rulesof Court, rule 4.421(a)(3).) In finding that the defendant’s acceptance ofresponsibility came only after trial, the court of appeal found that he wasnot being punished for going to trial. (People v. Collins (2001) 26 Cal.4th297, 305-306.) Additionally, because of the defendant’s escalating sexualviolence and predation and his abuse of his relationship with victim as afriendly neighbor, the trial court reasonably viewed defendant as a serioussex offender and did not err in imposing a full consecutive sentence undersection 667.6, subdivision (c) for defendant’s rape and forcible lewd actconvictions.

10. People v. Goodliffe (2009) 177 Cal.App.4th 723, the Third AppellateDistrict, held that the “absurd consequences” exception to the plainmeaning rule cannot be applied whenever it is claimed to run counter to ageneralized legislative intent, general statement of electorate's intent “tostrengthen and improve the laws that punish and control sexual offenders”will not trump plain meaning of section 667.6, subdivision (c), whichprovides that a “full, separate and consecutive term” may be imposed foreach violation of an enumerated violent sexual offense involving the“same victim on the same occasion.” The trial court erred in imposing fullconsecutive terms under that subdivision for offenses committed againstseparate victims. The court chose not to rewrite subdivision (c), toreinstate language that Jessica's law repealed. (In re Water of Long ValleyCreek Stream System (1979) 25 Cal.3d 339, 348; People v. Skinner (1985)39 Cal.3d 765, 775 [the Court of Appeal does not rewrite unambiguouslanguage].)

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11. People v. Williams (DEPUBLISHED); FORMERLY AT: (2011) 197Cal.App.4th 339, the Second Appellate District, Division 7 held that thetrial court did not abuse its discretion in sentencing defendant toconsecutive terms, where it had the option of sentencing concurrently oncertain offenses, based on his numerous prior convictions, which had beenincreasing in severity, and on the fact he had been on parole when hecommitted the instant offense. A factor in aggravation used to set theupper term cannot be used as a basis for imposing a consecutive term (Cal.Rules of Court., Rule, 4.425(b)(1).)

12. People v. Dyser (2012) 202 Cal.App.4th 1015, the Third Appellate Districtheld that there was no valid reason for counsel's failure to object to thetrial court's failure to state reasons for consecutive sentences (People v.Tillotson (2007) 157 Cal.App.4th 517, 545 [trial court must expressreasons for consecutive sentences]) for first degree robbery and assaultwith intent to commit rape, and counsel forfeited the issue (People v. Scott(1994) 9 Cal.4th 331, 353), but there were at least five aggravatingcircumstances pursuant to rule 4.421, and it is not probable that the resultwould have differed.

13. People v. Maharaj (2012) 204 Cal.App.4th 641, the Third AppellateDistrict held that where the defendant was convicted of 3 counts withinsection 269 (aggravated sexual assault on a minor), and section 288,subdivision (b), and each of the offenses in within section 667.6,subdivision (e), and therefore requiring mandatory consecutive sentencesfor each of the 4 forcible sex offenses. (See § 667.6, subds. (c) and (d)requiring full term, consecutive sentences.) Section 667.6, subdivision (c)mandates that violent sex offenses listed in section 667.6, subdivision (e),when committed against the same victim on separate occasions, be subjectto full-term consecutive sentences just as when such offenses arecommitted against multiple victims.

14. People v. Woodworth (2016) Cal.App.4th , reported on March 31,2016, in 2016 Los Angeles Daily Journal 3031, the Fifth Appellate Districtheld that section 1170.15, which authorizes full-term consecutivesentences when a defendant is convicted of a felony and is also convictedof dissuading a witness from reporting or testifying about the crime, (§136.1), does not preclude concurrent sentences. Reversal was requiredwhere the trial judge imposed a full-term consecutive sentences withoutacknowledging that he had discretion to impose concurrent sentences.

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III. CRUEL AND UNUSUAL PUNISHMENT

1. United States v. Barajas-Avalos (9th Cir. 2004) 377 F.3d 1040, the NinthCircuit Court of Appeal held that a thirty-year sentence for conspiracy tomanufacture methamphetamine and attempting to manufacturemethamphetamine did not constitute cruel and unusual punishment, eventhough defendant had never been convicted of a prior felony or crime ofviolence, given the seriousness of the crime, the quantity of drugsinvolved, the possession of the firearm during the commission of thecrime, and his participation in an obstruction of justice.

2. Centeno v. Superior Court (2004) 117 Cal.App.4th 30, the SecondAppellate District, Division 5, held that a defendant who contends that heis not subject to death penalty due to mental retardation (see section 1376),is entitled to a pretrial hearing before the court on that issue. (See Atkinsv. Virginia (2002) 536 U.S. 304, 319-321 [147 L.Ed.2d 435, 120 S.Ct.2348].) Where a defendant facing the death penalty claims mentalretardation at the time of the act, the prosecution expert may conduct apretrial examination of defendant, limited to tests reasonably related to adetermination of mental retardation. The defendant is not entitled tounqualified judicial immunity for statements made in the course of theexamination, but, possesses a statutory immunity at the guilt phase of thetrial.

3. Ramirez v. Castro (9th Cir. 2004) 365 F.3d 755, the Ninth Circuit Court ofAppeal held that a Three-strikes sentence of 25 years to life for theft of aVCR valued at less than $200 violated the Eighth Amendment prohibitionagainst cruel and unusual punishment as applied to appellant’s current andprior offenses. Appellant had previously been convicted of twosecond-degree robberies, and neither involved weapons; minimal force toescape from each of the petty thefts was used by appellant. Appellant hadpled guilty to the priors, which the trial court conceded were actually pettythefts for which defendant served 6 months in county jail and successfullycompleted the 3 year probationary term without incident. The currentoffense is a wobbler do to the prior theft offenses; and he had never beenconvicted of any other felony. The Ninth Circuit Court of Appeal foundthe California’s appellate court’s upholding of the 25 to life sentence, inwhich appellant must serve a minimum of 25 years (see In re Cervera(2001) 24 Cal.4th 1073), was an unreasonable application of controllingfederal law, and therefore relief was possible under AEDPA in this “rarecase” as a violation of the Eighth Amendment. (See Lockyer v. Andrade(2003) 538 U.S. 63, 73-77 [155 L.Ed.2d 144, 123 S.Ct. 1166].)

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4. People v. Kellogg (2004) 119 Cal.App.4th 593, the Fourth AppellateDistrict, Division 1, held that it was not cruel and unusual punishment,under the Eighth Amendment, or Robinson v. California (1962) 370 U.S.660, 666-667 [8 L.Ed.2d 758, 82 S.Ct. 1417], or Powell v. Texas (1968)392 U.S. 514 [20 L.Ed.2d 1254, 88 S.Ct. 2145] to conviction thedefendant a chronic alcoholic, who was homeless, under section 647, subd.(f). The statute applies only if publicly intoxicated person is unable toexercise care for his or her own safety or the safety of others, or isobstructing a public way, it does not punish the mere condition of being ahomeless, chronic alcoholic, but rather punishes conduct posing a publicsafety risk.

5. Rios v. Garcia (Ninth Cir. 2004) 390 F.3d 1082, the Ninth Circuit Court ofAppeal held that the habeas petitioner’s sentence of 25 years to life inprison for petty theft of two watches worth less than $80, based on hisThree Strikes sentence, was not grossly disproportionate to his crime inlight of his criminal history. (See Ewing v. California (2003) 538 U.S. 11[155 L.Ed.2d 108, 123 S.Ct. 1179].) This Court of Appeal distinguishedRamirez v. Castro (9th Cir. 2004) 365 F.3d 755, which held a 25 to lifesentence for a theft of a VCR was grossly disproportionate to the crime, asthe defendant surrendered without the use of violence, and the priors weretwo non-violent robberies. Here, petitioner struggled with the arrestingsecurity guard, and tried to avoid apprehension.

6. Smith v. Texas (2004) 543 U.S. 37 [160 U.S. 303, 125 S.Ct. 4000], theUnited States Supreme Court held that under Texas death penalty scheme,where the jury was instructed to determine whether the killing wasdeliberate and whether the defendant posed a continuing danger to others,and where the jury was not specifically instructed nor did the verdict formindicate that it could, even if it found for the prosecution on those twospecial issues, return a verdict for a sentence less than death if it founddefendant’s low IQ and placement in special-education classes to besufficiently mitigating. As a result, the defendant was deprived of his rightto consideration of mitigating evidence in violation of the EighthAmendment, and the error was not cured by a general instruction toconsider all mitigating evidence. (See Penry v. Johnson (2001) 532 U.S.782 [150 L.Ed.2d 1254, 88 S.Ct. 1910] (Penry II).)

7. People v. Poslof (2005) 126 Cal.App.4th 92, the Fourth Appellate District,Division 2, held that the sentence of 27 years to life in prison for failure toregister did not constitute cruel and unusual punishment in view ofdefendant’s criminal history as a recidivist and child sex offender, nor didthe lower court err in denying appellant’s Romero motion pursuant toPeople v. Williams (1998) 17 Cal.4th 148, 161.

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8. In re Hawthorne (2005) 35 Cal.4th 40, the California Supreme Court heldthat postconviction claims that a death sentence is cruel and unusualpunishment as applied to a mentally retarded person should be litigated insubstantial conformance with section 1376 which prescribes preconvictionstandards and procedures for determining whether a defendant againstwhom the prosecution seeks the death penalty is mentally retarded withinthe meaning of Atkins v. Virginia (2002) 536 U.S. 304.

9. Roper v. Simmons (2005) 543 U.S. 351 [161 L.Ed.2d 1, 125 S.Ct. 1183],the United States Supreme Court held that the Eighth and FourteenthAmendments preclude imposition of death penalty on a person who wasless than 18 years of age when crime was committed.

10. Reyes v. Brown (9th Cir. 2005) 399 F.3d 964, the Ninth Circuit held thatthe lower court erred in denying a habeas petition based on a violation ofthe prohibition against cruel and unusual punishment, in this Three Strikescase, where the record did not reflect whether petitioner’s most recentstrike offense was a crime against persons or involved violence, and aremand for further development of the record was required. It is clear thatthe Eighth Amendment will only apply to Three Strike cases in“exceedingly rare” cases. (See Ramirez v. Castro (9th Cir. 2004) 365 F.3d755, 763 [appellant’s conduct did not give rise to grave harm to society].)

11. People v. Carmony (2005) 127 Cal.App.4th 1066, the Third AppellateDistrict held that a violation of section 290, for the failure to “update” sexoffender registration within five working days of offender’s birthday,where defendant had registered his correct address one month before hisbirthday and the parole agent knew that the defendant continued to resideat that address, was an offense so minor that there would be a violation ofthe prohibition against cruel and/or unusual punishment provisions of theUnited States and California constitutions, if a three-strike sentence wasimposed. The majority of the court, in this 2-1 opinion, does an extensiveanalysis of the intrajurisdictional and interjurisdictional comparisons forboth the state and federal standard, and the majority found that thesentence is clearly disproportionate by any measure. (Cf. People v. Cluff(2001) 87 Cal.App.4th 991, 1004.)

12. Taylor v. Lewis (9th Cir. 2006) 460 F.3d 1093, the Ninth Circuit Court ofAppeal held that where the defendant’s history of recidivism marked wasby violence over a 30 year period, the lower court did not err, within themeaning of Ewing v. California (2003) 538 U.S. 11, and Rummel v. Estelle(1980) 445 U.S. 263 [63 L.Ed.2d 382, 100 S.Ct. 1133], that a three-strikessentence of 25 years to life for possessing 0.036 grams of cocaine did notviolate the Eighth Amendment prohibition of cruel and unusualpunishment.

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13. People v. Demirdjian (2006) 144 Cal.App.4th 10, the Second AppellateDistrict, Division 4 held that a defendant’s failure to object in the superiorcourt to imposition of statutorily prescribed sentence, on grounds that itconstitutes cruel and/or unusual punishment, does not preclude the Courtof Appeal from entertaining the argument. Imposition of two consecutive25-year-to-life sentences on a 15-year-old defendant did not violate theEighth Amendment or similar California provision where terms wereimposed for two horrendous murders in which teenage victims werebludgeoned to death. Proposition 21, permits the minor to be tried as anadult, and the imposition of a 25-year-to-life sentence, where defendant isbetween the ages of 14 and 16 and is charged with special circumstancesmurder.

14. Kennedy v. Louisiana (2008) 554 U.S. 407, [171 L.Ed.2d 525, 128 S.Ct.2641], the United States Supreme Court held that the Eighth Amendmentbars state from imposing the death penalty for the rape of a child becausethe death penalty is disproportionate to a crime where the crime did notresult, or was not intended to result, in the victim’s death based uponsocietal standards; capital punishment, where imposed for crimes againstthe individual, as opposed to crimes against the state such as treason andespionage, must be reserved for the “worst of crimes.”

15. People v. Cross (2008) 45 Cal.4th 58, the California Supreme Court heldthat a surgical abortion, performed on a 13 year old girl, can support anenhancement under section 12022.7 for the defendant’s personal inflictionof great bodily injury in committing the offense that led to the victim’spregnancy, and that in this instance the pregnancy itself can constitute suchgreat bodily injury. (See People v. Superior Court (Duval) (1988) 198Cal.App.3d 1121, 1131-1132; see also People v. Sargent (1978) 86Cal.App.3d 150.) Where the 13-year-old victim became pregnant by herstepfather and carried the fetus for 22 weeks, the jury could reasonablyhave found that the victim suffered a significant or substantial physicalinjury. Where the trial court instructed the jury that “a pregnancy or anabortion may constitute great bodily injury” and did not instruct them onmeaning of personal infliction the trial court did not err by failing toinstruct on meaning of personal infliction, but the court erred in instructingthe jury that an abortion may constitute great bodily injury, even thoughsuch statement was legally correct, because the defendant did notpersonally perform the abortion. Such instruction would not have misledthe jury into concluding that the defendant inflicted great bodily harm byvirtue of victim’s abortion by facilitating the victim in obtaining theabortion.

16. Gonzalez v. Duncan (9th Cir., 2008) 551 F.3d 875, the Ninth Circuit Courtof Appeal held that where the defendant was convicted of failing to update

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his annual sex offender registration (see § 290, subd. (a)(1)(D), and, as aresult of his priors, was sentenced to 28 years to life under the ThreeStrikes law, his sentence was grossly disproportionate to his offense, giventhe fact that he offense was a passive, harmless, and a technical violationwhere jury found the he had not moved, law enforcement was aware of hisaddress, and he had registered at same address three previous times. Thedefendant’s failure to register could not have interfered with lawenforcement’s ability to conduct surveillance and so the purpose of theregistration requirement was not undermined by his technical offense; theoffense resulted in no social harm and little or no moral culpabilityattached; and absent some connection between his prior offenses, theregulatory violation, and a propensity to recidivate, California’s interest indeterring and incapacitating recidivist offenders did not justify severity ofsentence imposed.

17. People v. Hamlin (2009) 170 Cal.App.4th 1412, the Third AppellateDistrict held that although the defendant had no criminal record and was asuccessful attorney, the facts of the case demonstrated that he was alsocapable of gross inhumanity for which he was neither remorseful norcontrite, and so his life sentence was not so disproportionate todefendant’s crime that it was cruel and unusual punishment, under eitherthe California or federal constitutions.

18. People v. Em (2009) 171 Cal.App.4th 964, the Fourth Appellate District,Division 3, the majority of the court, over a strong dissent, held that thedefendant’s two consecutive 25-year-to-life sentences, for the felonymurder, when the defendant was not the shooter, was not cruel or unusualpunishment even though defendant was 15 years and nine months old attime of offense. The dissent argued that the consecutive sentencesviolated both the state and federal constitutions, wherein concurrentsentences would not.

19. In re Nunez (2009) 173 Cal.App.4th 709, the Fourth Appellate District,Division 3 held that life imprisonment without possibility of parole forkidnaping for ransom constituted cruel or unusual punishment pursuant tothe state constitution, and the Eighth Amendment as applied to this minordefendant who was 14 years of age when crime was committed. Theminor inflicted no injury on victim, and who was suffering frompost-traumatic stress disorder at the time of the crime, where the minor didnot have a significant criminal record, and the sentence was sodisproportionate to those actually imposed on offenders of similar age whocommitted similar crimes in other jurisdictions as to be “freakishly rare.”

20. People v. Haller (2009) 174 Cal.App.4th 1080, the Third AppellateDistrict held that appellant’s sentence of 78 years to life in prison on

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multiple counts of criminal threats, stalking, and assault with a deadlyweapon, in this Three-Strike sentence, did not constitute cruel and/orunusual punishment under state and federal constitutions where thedefendant caused serious emotional distress to multiple victims, was onprobation for similar conduct at the time of the crimes, and had priorconvictions for four felonies and a large number of misdemeanors, and thesentence was not disproportionate to those imposed on violent recidivistsin other jurisdictions. Here the defendant will not be eligible for paroleuntil he is 119 years old.

21. People v. Nichols (2009) 176 Cal.App.4th 428, the Third AppellateDistrict held that a sex offender's indeterminate life sentence for failing toregister within five days of changing his address (§ 290), did not constitutecruel and/or unusual punishment since the defendant thwarted of thepurpose of registration, coupled with the seriousness of his priorconvictions (three prior strikes), and his sustained criminality, alldemonstrated his sentence was not grossly disproportionate to his offense. The court concluded that this situation was more closely in line withPeople v. Meeks (2004) 123 Cal.App.4th 695 [life sentence for failure toregister not unconsitutional], than the defendant's history and age of hispriors in People v. Carmony (Carmony II) (2005) 127 Cal.App.4th 1066[violation for failure to register was found unconstitutional].

22. People v. Russell (2010) 187 Cal.App.4th 981, the Fourth AppellateDistrict, Division 1 held that the Court of Appeal held that the defendant'ssentence of 26 years to life for first-degree felony murder was not crueland unusual punishment where he failed to show that his sentence shockedthe conscience and violated fundamental notions of human dignity. (SeePeople v. Carmony (2005) 127 Cal.App.4th 1066, 1076.)

23. People v. Mendez (2010) 188 Cal.App.4th 47, the Second AppellantDistrict, Division 2, held that a prison sentence of 84 years to lifeconstituted cruel or unusual punishment where the defendant was 16 yearsof age at time of the crimes, and did not commit a homicide or inflictbodily injury. (Graham v. Florida (2010) 560 U.S. , [130 S.Ct. 2011;176 L.Ed.3d 825].)

24. People v. Ramirez (DEPUBLISHED): FORMERLY AT: (2011) 193Cal.App.4th 613, the Second Appellate District, Division 4 held, over adissent by Justice Manella, and consistent with its prior opinion in Peoplev. Caballero (2011) 191 Cal.App.4th 1248, that Graham v. Florida (2010)560 U.S. [176 L.Ed.3d 825; 130 S.Ct. 2011], which holds that theEighth Amendment prohibits the imposition of a life-without-parolesentence on a juvenile offender who did not commit a homicide, isexpressly limited to those cases where a juvenile offender actually receives

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a sentence of life imprisonment without the possibility of parole for anonhomicide offense and does not bar a court from sentencing a juvenileoffender to a determinate sentence that exceeds his or her life expectancy.

25. People v. Meneses (2011) 193 Cal.App.4th 1084, the Fourth AppellateDistrict, Division 3 held that substantial evidence supported the greatbodily injury finding under sections 667.61, subdivisions (b), (e), and12022.8 for the forceable rape on the 12-year old victim who becamepregnant as a result of defendant's sexual contact with her. (See People v.Cross (2008) 45 Cal.4th 58, 66.) Additionally, the Court of Appeal heldthat the defendant's sentence of 15 years to life based on the finding ofgreat bodily injury under section 667.61, subdivisions (b) and (e), was notcruel and unusual even though the pregnancy may not be the usual type ofbodily injury for which the enhancement is applied.

26. People v. Nunez (DEPUBLISHED): FORMERLY AT: (2011) 195Cal.App.4th 414, the Fourth Appellate District, Division 3 held that asentence for a term of years exceeding the life expectancy of a juvenile butwithout the LWOP label does not pass constitutional muster based on atheoretical but illusory parole date. This Court of Appeal agrees with thedecision in People v. Mendez (2010) 188 Cal.App.4th 47, and disagreeswith People v. Ramirez (DEPUBLISHED): FORMERLY AT: (2011) 193Cal.App.4th 613.

27. People v. J.I.A. TRANSFERRED BACK TO COURT OF APPEAL INLIGHT OF CABALLERO; FORMERLY AT: (2011) 196 Cal.App.4th 393,the Fourth Appellate District, Division 3, held that imposition of aggregateprison term of 50 years to life, plus two consecutive life terms, ondefendant who was 14 years old when crimes--including multiple countsof kidnapping, robbery, dissuading a witness by force, and violent sexualoffenses--were committed and 18 years old at time of sentencing,constituted cruel and unusual punishment under the U.S. Constitutionbecause it was a de facto life-without-parole sentence, which may not beimposed on a minor. (Graham v. Florida (2010) 560 U.S. [176 L.Ed.3d825; 130 S.Ct. 2011].) Sentence violated state and federal constitutionalproportionality tests given defendant's age, the traumatic nature of hischildhood, and his limited intelligence. The appropriate remedy forexcessive sentence was to impose concurrent, rather than consecutive,terms for those offenses as to which concurrent terms were permitted bystatute, making defendant eligible for parole after 42.5 years.

28. People v. Blackwell (2011) 202 Cal.App.4th 144, the First AppellateDistrict, Division 5 held that the LWOP sentence does not amount to crueland unusual punishment under Graham v. Florida (2010) 560 U.S. ,[130 S.Ct. 2011], as applied to a defendant 16 years of age or older and

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convicted of first-degree murder under the felony-murder rule, wheredefendant personally killed victim or intended to kill or was a majorparticipant in the underlying felony and acted with reckless indifference tohuman life; the sentence was not disproportionate to his individualculpability; and he had an extensive juvenile record. Imposition of LWOPwas not an abuse of discretion where the trial court was aware of itsdiscretion to impose a lesser sentence but the circumstances of the casereasonably supported a decision not to do so. (People v. Ybarra (2008)166 Cal.App.4th 1069, 1088; see also People v. Jordan (1986) 42 Cal.3d308, 316 [exercise of discretion is not disturbed absent a showing that thecourt acted in an arbitrary, capricious, or patently absurd way, resulting ina miscarriage of injustice].)

29. Crosby v. Schwartz (9th Cir. 2012) 678 F.3d 784, the Ninth Circuit Courtof Appeal held that the defendant's sentence of 26-years-to-lifeimprisonment did not violate the Eighth Amendment ban on cruel andunusual punishment, (see Solem v. Helm (1983) 463 U.S. 277, 288 [77L.Ed.2d 637, 103 S.Ct. 3001]), where the defendant was convicted of bothfailing to annually update his sex offender registration five days after hisbirthday and failing to register within five days of a change of address, andhad three prior felony convictions for rape, forced copulation, and robbery. The court concluded that this situation was more closely in line withPeople v. Meeks (2004) 123 Cal.App.4th 695 [life sentence for failure toregister not unconstitutional], than the defendant's history and age of hispriors in People v. Carmony (Carmony II) (2005) 127 Cal.App.4th 1066[failure to register was found unconstitutional].

30. People v. Murray (2012) 203 Cal.App.4th 277, the Second AppellateDistrict, Division 8 held that the Eighth Amendment does not categoricallypreclude a LWOP sentence for a minor committed of murder. (Graham v.Florida (2010) 560 U.S. , [130 S.Ct. 2011]; see also People v. Blackwell(2011) 202 Cal.App.4th 144.) LWOP was not a disproportionate penaltyfor a 17-year-old defendant with a previously clean record, commendableprison behavior, and otherwise praiseworthy character traits. Thedefendant followed his victims into a secluded area backed by two armedaccomplices and gunned down two helpless victims.

31. Miller v. Alabama (2012) 560 U.S. , [183 L.Ed.2d 407, 132 S.Ct. 2455],the United States Supreme Court held that for a juvenile offender, whocommits a homicide, a sentence of life imprisonment without possibility ofparole constitutes cruel and unusual punishment.

32. People v. Caballero (2012) 55 Cal.4th 262, the California Supreme Courtheld that a sentence of 110 years to life imposed on a juvenile convicted ofnonhomicide offenses, constitutes cruel and unusual punishment under the

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Eighth Amendment. That lengthy sentence is the function equivalent as alife without parole sentence. Therefore, pursuant to Graham v. Florida(2010) 560 U.S. [130 S. Ct. 2011, 2030, the sentence must beoverturned since the Eighth Amendment prohibits sentencing a juvenileconvicted of nonhomicide offenses to life imprisonment without thepossibility of parole. Subsequently, in Miller v. Alabama (2012) 560 U.S. [132 S.Ct. 2455], the High court held that for a juvenile offender, whocommits a homicide, a sentence of life imprisonment without possibility ofparole constitutes cruel and unusual punishment, even though there is notthe same flat ban on such sentences as there is in Graham.

33. In re Coley (2012) 55 Cal.4th 524, the California Supreme Court held thatthe trial court did not abuse its discretion when it sentenced appellant to aterm of 25 years to life, as a third strike offender for intentionally failing toupdate his sex offender registration within five working days of hisbirthday, and as a result, did not constitute cruel and unusual punishment. The court characterized the offense not simply as a minor or technicaloversight by a defendant who had made a good faith effort to comply withthe sex offender registration law, but indicated that the defendant hadnever registered as a sex offender at his current address, and hadknowingly and intentionally refused to comply with his obligations underthe sex offender registration law.

34. People v. Gutierrez (DEPUBLISHED): FORMERLY AT: (2012) 209Cal.App.4th 646, the Second Appellate District, Division 6 held that asentence of life imprisonment without possibility of parole was not cruelor unusual where defendant committed an extremely brutal murder,repeatedly stabbing victim in the course of a violent sexual assault,expressed no remorse, and told the police three days after the murder thatvictim sexually assaulted him. The court found that the sentence was notgrossly disproportionate to the crime. (See Solem v. Helm (1983) 463 U.S.277, 288, 290-292; [77 L.Ed.2d 637, 647-648.) Additionally, the courtdistinguished Miller v. Alabama (2012) 560 U.S. [132 S.Ct. 2455],wherein the United States Supreme Court held that for a juvenile offender,who commits a homicide, a sentence of life imprisonment withoutpossibility of parole constitutes cruel and unusual punishment. This courtheld, that unlike the sentence in Miller, this one was not mandatory, as thestatutory scheme of section 190.5, subdivision (b), gave the court theoption to impose LWOP or not. The Court of Appeal also distinguishedPeople v. Caballero (2012) 55 Cal.4th 262, wherein the CaliforniaSupreme Court held that a sentence of 110 years to life imposed on ajuvenile convicted of nonhomicide offenses, constitutes cruel and unusualpunishment under the Eighth Amendment. That lengthy sentence is thefunction equivalent as a life without parole sentence.

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35. People v. Moffett (DEPUBLISHED); FORMERLY AT: (2012) 209Cal.App.4th 1465, the First Appellate District, Division 5 held that section190.5, subdivision (b), which permits the trial court to sentence adefendant who is between 16 and 18 years old at the time of the offense, tolife imprisonment without possibility of parole (LWOP), or to 25 years tolife in prison for first-degree murder of a police officer during the escape,does not automatically violate the Eighth Amendment. However, here, thestatute was applied in an unconstitutional manner where trial court treatedthe LWOP sentence as the presumptive sentence. (See Miller v. Alabama(2012) 560 U.S. [132 S.Ct. 2455, 2469] [a presumption in favor ofLWOP, is contrary to the spirit, if not the letter of Miller, which cautionsthat LWOP sentences should be ''uncommon" given the great difficulty ofdistinguishing at this early age between the juvenile offender whose crimereflects unfortunate yet transient immaturity, and the rare juvenile offenderwhose crime reflects irreparable corruption.}) The trial court expresslydeclined to consider the fact that the defendant was not the shooter;considered the impact of the crime on the victims of the underlyingrobbery, but failed to consider such relevant factors as the defendant’smaturity, prospects for reform, or mental state with respect to the homicideitself. Furthermore when the trial court considered the defendant’sprevious criminal history, it mistakenly characterized a juvenileadjudication for assault as a felony when it was designated a misdemeanor.The juvenile defendant’s lack of intent to kill, as he was not the shooter,did not necessarily preclude an LWOP sentence where he was at least amajor participant in the underlying robbery and acted with recklessindifference to human life.

36. People v. Argeta (2012) 210 Cal.App.4th 1478, the Second AppellateDistrict, Division 4 held that a minimum aggregate sentence of 100 yearsfor a defendant (Hernandez) who was 15-years old when he aided andabetted an 18-year old adult codefendant (Argeta) in one count of murderand five counts of attempted murder, was the functional equivalent to anLWOP sentence and, therefore subject to reversal pursuant to Graham v.Florida (2010) 560 U.S. , [130 S.Ct. 2011] Miller v. Alabama (2012)560 U.S. [132 S.Ct. 2455], and People v. Caballero (2012) 55 Cal.4th262, each which found a violation of the Eighth Amendment to impose alife-without-parole sentence upon a juvenile. The same considerations didnot apply to the codefendant sentenced for a crime he committed only fivemonths after he turned 18.

37. People v. Siackasorn (2012) 211 Cal.App.4th 909, the Third AppellateDistrict held that in light of Miller v. Alabama (2012) 560 U.S. [132S.Ct. 2455], the section 190.5, subdivision (b), allows the trial court withequal discretion to impose a sentence of LWOP or a sentence of 25 yearsto life, with neither being the preferred one on the defendant who was 16

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at the time of the offense, as the sentence is not the mandatory sentenceprohibited in MIller. Based on Miller, LWOP is not the presumptivesentencing choice on remand for resentencing.

38. People v. Thomas (2012) 211 Cal.App.4th 987, the Fourth AppellateDistrict, Division 1 held that the co-defendant Satterwhite's sentence of196-L, was the functional equivalent to LWOP, (see People v. Caballero(2012) 55 Cal.4th 262, 268, fn.4), and it was remanded for the trial courtto exercise its discretion under Miller v. Alabama (2012) 560 U.S. [132S.Ct. 2455].

39. People v. Perez (2013) 214 Cal.App.4th 49, the Fourth Appellate District,Division 3 held that it was not cruel and unusual punishment to impose asentence of 30 years to life on a 16-year-old convicted of sex crimesinvolving force and threat of force against younger minors. The courtfound that it was not the functional equivalent of a life-without-parolesentence. (See Graham v. Florida (2010) 560 U.S. , [130 S.Ct. 2011];People v. Caballero (2012) 55 Cal.4th 262, 268, fn.4); Miller v. Alabama(2012) 560 U.S. [132 S.Ct. 2455]. Further, that the application of theone-strike law to minors does not, on the face of the statute, constitutecruel and unusual punishment. The Court of Appeal found that theargument overstates the scope of Graham, Miller and Caballero. Finally,the Court of Appeal found that the sentence was not grosslydisproportionate to culpability where crime was "horrendous," and wherethe defendant was remorseless in talking with police and had previouslycommitted three serious offenses.

40. People v. Ramirez (2013) 219 Cal.App.4th 655, the Fourth AppellateDistrict, Division 3 held that the defendant's sentence of life imprisonmentwithout possibility of parole was cruel and unusual where he was 16 yearsof age at the time of the crime, and a sentence of 90 years to life imposedon codefendant of same age who was not an actual perpetrator of themurders was also cruel and unusual. (Graham v. Florida (2010) 560 U.S.48, [130 S.Ct. 2011]; People v. Caballero (2012) 55 Cal.4th 262, 268,fn.4); Miller v. Alabama (2012) 560 U.S. [132 S.Ct. 2455].)

41. In re Alatriste (REVIEW GRANTED); FORMERLY AT: (2013) 220Cal.App.4th 1232, the Second Appellate District, Division 2 held thatsentences of 77 years to life in prison for one minor and 50 years to life foranother, imposed on offenders who were under the age of 18 when thecrime was committed, were the "functional equivalent" of life sentenceswithout possibility of parole, entitling each offender to a "juvenileopportunity parole hearing" under SB 260, enacted at the 2013-14legislative session. (§ 3051.) Section 3051 renders moot the issue ofwhether Miller v. Alabama (2012) 132 S.Ct. 2455, and People v.

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Caballero (2012) 55 Cal.4th 262, which precludes LWOP or equivalentsentences from being imposed on juveniles, should apply retroactively todefendants sentenced before the case was decided because SB 260 appliesto "any prisoner who was under 18 years of age at the time of his or hercontrolling offense."

42. People v. Johnson (2013) 221 Cal.App.4th 623, the Second AppellateDistrict, Division 6 held that the defendant forfeited his right to raise thecruel and unusual punishment issue by not asserting it in the trial court(see People v. Norman (2003) 109 Cal.App.4th 221, 229-230); and in anyevent, the Court of Appeal found that the sentence of 25-years-to-life isnot disproportionate (People v. Murray (2012) 203 Cal.App.4th 277, 284;Harmelin v. Michigan (1991) 501 U.S. 957 [111 S.Ct. 2680, 115 L.Ed.2d836] and does not violate the Eighth Amendment prohibition against crueland unusual punishment.

43. People v. Abundio (2013) 221 Cal.App.4th 1211, the Fourth AppellateDistrict, Division 2 held that it was not a violation of the EighthAmendment prohibition against cruel and unusual punishment where thecourt's sentence of life without the possibility of parole, plus one year,imposed on an 18-year-old defendant for first degree murder with specialcircumstances. The defendant was convicted of a premeditated attack on amarijuana dealer, was of adult age, acted intentionally, and presented noevidence he manifested unusual immaturity, which according to this court,distinguished it from People v. Dillon (1983) 34 Cal.3d 441. Dillion heldthat a life sentence on an "unusually immature" 17-year-old for felonymurder was unconstitutional due to that defendant’s age, maturity leveland lack of deliberation in the crime. The Court of Appeal found that thesentence was not grossly disproportionate to the nature of the offense or todefendant’s culpability given his amount of planning of the crime, alongwith its unprovoked and vicious nature.

44. People v. Martin (2013) 222 Cal.App.4th 98, the Second AppellateDistrict, Division 6 held that SB 260, which amended sections 3041, 3046,4801, and added section 3051, requires the Board of Parole Hearings toconduct "youth offender parole hearings" to consider the release ofoffenders who committed specified crimes and were sent to prison. As aresult such life sentences for a juvenile offender is not the functionalequivalent of a life-without-parole sentence and thus does not violate theEighth Amendment, where the defendant is eligible for a youth offenderparole hearing under section 3051, and as a result it changed the landscapesince the rulings in Graham v. Florida (2010) 560 U.S. 48, [130 S.Ct.2011]; People v. Caballero (2012) 55 Cal.4th 262, 268, fn.4); Miller v.Alabama (2012) 560 U.S. [132 S.Ct. 2455].. That section provides forsuch a hearing during the 15th year of incarceration for a prisoner serving

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a determinate sentence, a hearing during the 20th year of incarceration fora prisoner serving a life term less than 25 years to life, and a hearingduring the 25th year of incarceration for a prisoner serving a life term of25 years to life.

45. People v. Lewis (2013) 222 Cal.App.4th 108, the First Appellate District,Division 5 held that where the jury found that the defendant, a juvenile atthe time of the crimes, committed multiple sexual assaults, and a murderand was sentenced of 115-years-to-life, the court violated his 8thAmendment rights against cruel and unusual punishment. An LWOPsentence may not be imposed against a juvenile offender for nonhomicideoffenses. (People v. Caballero (2012) 55 Cal.4th 262, 268; Graham v.Florida (2010) 560 U.S. 48, [130 S.Ct. 2011].) However, as to homicidecases, the United States Supreme court has found that a state may notimpose a "mandatory" LWOP on a juvenile defendant although thesentencding court might impose such a sentence if it has adequatelyconsidered the offender's age and environment and found "irreparablecorruption." (Miller v. Alabama (2012) 560 U.S. [132 S.Ct. 2455,2468-2469].) In People v. Ramirez (2013) 219 Cal.App.4th 655, 688, theCourt of Appeal held that the trial court must exercise its discretion toimpose sentences which ensure these juvenile defendants have ameaningful opportunity to demonstrate rehabilitation and potentiallyobtain their release within a reasonable period of time. As a result thematter was remanded to the trial court to determine a parole eligibility datewithin his expected lifetime, unless it concludes that his offenses reflectedsuch “irreparable corruption” that it was appropriate to preclude him fromthe possibility of parole during his lifetime.

46. In re Heard REVIEW GRANTED; FORMERLY AT: (2014) 223Cal.App.4th 115, the Fourth Appellate District, Division 1 held thatappellant, who was 15 years old at the time he committed 2 premeditatedattempted murders, and then 6 months later, he admitted to committing avoluntary manslaughter, unrelated to the premeditated murders, received23 years for the voluntary manslaughter, and 80 to life for the attemptedmurders, violated the provisions of Graham v. Florida (2010) 560 U.S.48, [130 S.Ct. 2011]; People v. Caballero (2012) 55 Cal.4th 262, 268,fn.4); Miller v. Alabama (2012) 560 U.S. [132 S.Ct. 2455], and wastherefore cruel and unusual punishment under the 8th Amendment, as itresulted in a de facto sentence of life without the possibility of parole. This Court of Appeal disagreed with the Second Appellate District,Division 2's opinion in In re Alatriste (REVIEW GRANTED);FORMERLY AT: (2013) 220 Cal.App.4th 1232, where that court foundthat SB 260 (sec. 3051,subds. (a), (b)(1)(2)(3)), which provides for youthoffender parole hearings to determine sentences of any length after certainperiods of time based on the crime committed, renders moot the issue of

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whether Miller v. Alabama (2012) 132 S.Ct. 2455, and People v.Caballero (2012) 55 Cal.4th 262, which precludes LWOP or equivalentsentences from being imposed on juveniles, should apply retroactively todefendants sentenced before the case was decided because SB 260 appliesto "any prisoner who was under 18 years of age at the time of his or hercontrolling offense." This court found that they do not read SB 260 as areplacement of the sentencing court's duty as required under Graham andCaballero, and the court must consider the differences between adults andjuveniles when sentencing the juvenile offender. This court views SB 260more as a "safety net", but it does not let the trial court do away with itsconstitutional duties under Graham, Caballero, and Miller. This isespecially true since there is no telling that SB 260 will still be in existencewhen appellant will be eligible to benefit from it.

47. People v. Superior Court (Flores) (2014) 223 Cal.App.4th 1535, theFourth Appellate District, Division 1 held that the defendant’s petition forrecall and resentencing was dismissed under section 1170, subdivision(d)(2) (Proposition 9 in 2012), allowing defendants who were under 18years of age at the time of committing a crime, for which they weresentenced to imprisonment for life without the possibility of parole, topetition for resentencing. Here, the defendant was sentenced to threeconsecutive terms of 25-years-to-life in prison for first-degree murder,albeit a very long sentence, this court found that it was not technically lifewithout parole, and therefore neither section 1170, subdivision (d)(2) orSB 260 apply. This court did not do the same analysis as the Court ofAppeal did in In re Heard REVIEW GRANTED; FORMERLY AT:(2014) 223 Cal.App.4th 115, which came to a different conclusion on thequestion of whether there was an equal protection violation.

48. People v. Franklin REVIEW GRANTED; FORMERLY AT: (2014) 224Cal.App.4th 296, the First Appellate District, Division 3 held that there isnot a violation of the Eight Amendment cruel and unusual clause wherethe defendant’s claim that a sentence of 50 years to life in prison was thefunctional equivalent of a life-without-parole sentence pursuant to Millerv. Alabama (2012) 132 S.Ct. 2455 and People v. Caballero (2012) 55Cal.4th 262, since the issue was moot, or did not come into play since theenactment of section 3051, subdivision (a)(1) (SB 260), which providesthat "any prisoner who was under 18 years of age at the time of his or hercontrolling offense" shall be afforded a "youth offender parole hearing"before the Board of Parole Hearings. Here, the defendant would beeligible for such a hearing when he is 44 years of age. The Court ofAppeal acknowledges a split on this issue, and particularly with People v.Heard REVIEW GRANTED; FORMERLY AT: (2014) 223 Cal.App.4th115, which came to a different conclusion.

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49. In re Rainey REVIEW GRANTED; FORMERLY AT: (2014) 224Cal.App.4th 280, the First Appellate District, Division 1 held, contra to itcounter parts in Division 3 of the First Appellate District, that Miller v.Alabama (2012) 132 S.Ct. 2455, which holds that mandatory lifeimprisonment without parole for those under the age of 18 at the time oftheir crime, violates the Eighth Amendment prohibition on cruel andunusual punishment, applies retroactively to cases on collateral review.(See Teague v. Lane (1989) 489 U.S. 288 [103 LL.Ed.2d 334, 109 S.Ct.1060]; see also In re Gomez (2009) 45 Cal.4th 650, 653.) A minorsentenced prior to Miller is entitled to habeas relief where trial court, inweighing aggravating and mitigating circumstances, did not consider the"hallmark features" of youth now mandated under Miller. This courtagreed with the analysis from In re Heard (2014) 223 Cal.App.4th 115,that section 1170, subdivision (d)(2)’s "recall" procedure for a juvenileLWOP sentence after a period of 15 years is not an adequate substitute forhabeas relief under Miller.

50. People v. Solis REVIEW GRANTED; FORMERLY AT: (2014) 224Cal.App.4th 727, the Fourth Appellate District, Division 3 held that SB260 (§ 1170, subd. (d)(2)(A)(1); § 3051, subd. (a)(1)) requiring thatdefendants sentenced to life imprisonment for crimes committed asjuveniles be given a parole hearing after 25 years, in some cases acts as asafety net as opposed to a cure-all for juvenile sentences that violate theEight Amendment. (See In re Heard REVIEW GRANTED FORMERLYAT: (2014) 223 Cal.App.4th 115, and In re Rainey REVIEW GRANTED;FORMERLY AT: (2014) 224 Cal.App.4th 280.) However, in this case thelegislation is an adequate remedy for facial unconstitutionality of life-without-parole sentence or functional equivalent thereof. To ensure thatthe defendant, who was sentenced to 50 years to life in prison, receives thebenefit thereof of the legislation, his sentence must be reduced to 25 yearsto life.

51. People v. Dubose DEPUBLISHED; FORMERLY AT: (2014) 224Cal.App.4th 1416, the Fourth Appellate District, Division 2 held that sinceMiller v. Alabama (2012) U.S. [132 S.Ct. 2455] was not decided atthe time of appellant's sentencing, the trial court must, using the factors setforth in MIller, such as mitigating factors, age-related characteristics andthe nature of the crimes, to determine whether appellant's sentence shouldbe LWOP or 25 to life.

52. People v. Gonzalez REVIEW GRANTED; FORMERLY AT: (2014) 225Cal.App.4th 1296, the Fourth Appellate District, Division 3 held thatappellant's sentence of 50-years-to-life in prison, imposed on a 23-year-olddefendant for a first-degree murder committed when he was 14 or 15, wasnot the functional equivalent of a life-without-parole sentence, where

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defendant would be eligible for a parole hearing in his 25th year ofincarceration, pursuant to SB 260, section 3051(b)(3). The dissenthowever indicates that we cannot predict that SB 260 will not be repealedbefore the 25 years has run. It indicates that the sentence must beconstitutional ab initio, making it a constitution sentence now. (See InREVIEW GRANTED; FORMERLY AT: People v. Solis REVIEWGRANTED; FORMERLY AT: (2014) 224 Cal.App.4th 727; In re Heard(2014) 223 Cal.App.4th 115, and In re Rainey REVIEW GRANTED;FORMERLY AT: (2014) 224 Cal.App.4th 280.

53. People v. Gutierrez (2014) 58 Cal.4th 1354, the California Supreme Courtheld that section 190.5, subdivision (b), can be interpreted to allow thetrial court the discretion to sentence a 16- or 17-year-old juvenile,convicted of special circumstance murder to life without parole or to 25-years-to-life, with no presumption in favor of life without parole. As aresult, it is not inconsistent with Miller v. Alabama (2012) 132 S. Ct.2455, wherein the trial court, in exercising its sentencing discretion,consider the "distinctive attributes of youth" and how those attributes"diminish the penological justifications for imposing the harshestsentences on juvenile offenders" before imposing life without parole on ajuvenile offender. A juvenile defendant sentenced to LWOP prior toMiller, are entitled to resentencing in order to insure that the requirementsof MIller may be taken into consideration before imposing sentence.

54. Hall v. Florida (2014) U.S. , reported on May 28, 2014, in 2014 LosAngeles Daily Journal 6488, the United States Supreme Court held thatState’s threshold requirement that a defendant, in seeking to avoidexecution based on mental retardation, present evidence of an IQ below 70violates the Eighth Amendment. In other words, a defendant with an IQ of71 may challenge his death sentence based on his intellectual disabilitysince Florida's 70-point threshold for such challenges is unconstitutional.(See Atkins v. Virginia (2002) 536 U.S. 321 [it is cruel and unusualpunishment to execute the mentally disabled.])

55. People v. Garrett (2014) 227 Cal.App.4th 675, the Third AppellateDistrict held that where the trial court sentenced the defendant to 74 yearsand 4 months-to-life for a nonhomicide crimes which were committedwhen the defendant was a minor constituted cruel and unusual punishmentunder the Eighth Amendment. (See SB 260, allowing early parole releaseof such offenders did not cure the constitutional defect. (See People v.Caballero (2012) 55 Cal.4th 262; see also Miller v. Alabama (2012) U.S.[132 S. Ct. 2455]; Graham v. Florida (2010) 560 U.S. 48, [130 S.Ct.2011].)

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56. People v. Speight (2014) 227 Cal.App.4th 1229, the Fourth AppellateDistrict, Diviision 3, held that the defendant's failure to object to asentence as cruel and unusual punishment, forfeits that claim on appeal.(People v. Gamache (2010) 48 Cal.4th 347, 403 People v. Vallejo (2013)214 Cal.App.4th 1033, 1045.) However, this court was able to address theissue of cruel and unusual punishment, by way of writ, as it found thatdefense counsel rendered ineffective assistance by failing to object onEighth Amendment grounds to the defendant’s 69-year-to-life sentence fora nonhomicide offense committed while a juvenile. (See People v.Caballero (2012) 55 Cal.4th 262, 268-269; see also Graham v. Florida(2010) 560 U.S. 48, 73.) As a result the defendant was entitled to a newsentencing hearing.

57. People v. Saetern (2014) 227 Cal.App.4th 1456, the Third AppellateDistrict held that a sentence of 100-years to life in prison, imposed on a14-year-old defendant, did not violate the Eighth Amendment becausedefendant would still have an opportunity for parole after 25 years.Pursuant to section 3051, subdivision (b)(3), any of his four 25-years-to-life sentences can serve as the "controlling offense," and the new paroleeligibility scheme is based on the sentence for the controlling offense. Thedefendant would be eligible for a youth offender parole hearing once heserves one of his 25-year-to-life sentences.

58. People v. Chavez (2014) 228 Cal.App.4th 18, the Fourth AppellateDistrict, Division 1 held that the matter must be remanded for resentencingfor these defendants who were juveniles at the time of the offenses, in lightof Miller v. Alabama (2012) U.S. [132 S.Ct. 2455] and People v.Gutierrez (2014) 58 Cal.4th 1354, which require circumstances of youth tobe considered in imposing life imprisonment without possibility of parole.

59. People v. Windfield (2014) 228 Cal.App.4th 1406, the Fourth AppellateDistrict, Division 2 held that the sentence of 90 years to life for murder,attempted murder, and assault constituted cruel and unusual punishment asto the defendant who was 17 years of age at the time of the crimes, but notas to the defendant who was 18 years of age at the time of the crimes. (Miller v. Alabama (2012) U.S. [132 S.Ct. 2455]; People v. Caballero(2012) 55 Cal.4th 262, 268-269.)

60. People v. Palafox (2014) 231 Cal.App.4th 68, the Fifth District Court ofAppeal held that the trial court’s inability to exclude the possibility ofrehabilitation did not preclude imposition of life sentence withoutpossibility of parole on the defendant who was 16 years old when hecommitted the crimes. In deciding whether to impose LWOP on ajuvenile who has committed murder, the trial court must give dueconsideration to an offender’s youth and attendant characteristics, as

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required by Miller v. Alabama (2012) U.S. [132 S.Ct. 2455], but it iswithin the discretion of the trial court to determine the weight to be givenany particular factor. The trial court did not abuse its discretion byimposing LWOP based on its determination that aggravating factors, inparticular the heinousness of the crime, a home invasion robbery andburglary in which homeowners were brutally murdered in their bed,outweighed any possibility of rehabilitation.

61. People v. Hernandez REVIEW GRANTED; FORMERLY AT: (2014) 232Cal.App.4th 278, the Third Appellate District held that theminor/defendant's sentence of 61-years to life, constituted cruel andunusual punishment for non-homicide crimes (see Graham v. Florida(2010) 560 U.S. 48, [130 S.Ct. 2011]; Miller v. Alabama (2012) U.S. [183L.Ed.2d 407, 132 S.Ct. 2455]) which were committed when he was 16years old, prior to the Supreme Court's holding in People v. Caballero(2012) 55 Cal. 4th 262, which requires that a minor/defendant convicted ofcrimes committed while a minor be given a sentence that permits "ameaningful opportunity for release from prison within his expectedlifetime". Remand was required so that the minor/defendant could beresentenced within the meaning of Graham, Miller and Caballero. Hischallenge based on cruel and unusual punishment was not rendered mootby the passage of SB 260, which created the new procedure for theconsideration of parole for defendants in those circumstances, in 25-years.

62. In re Wilson REVIEW GRANTED: FORMERLY AT: (2015) 233Cal.App.4th 544, the Second Appellate District, Division 7 held thatpursuant to Miller v. Alabama (2012) 567 U.S. [183 L.Ed.2d 407, 132S.Ct. 2455], the life imprisonment without parole sentence petitionerreceived in 1996 for a first degree murder, robbery with specialcircumstances, among other offenses, when he was 17, violated the EighthAmendment prohibition on cruel and unusual punishment for this habeaspetitioner. The petitioner was entitled to be resentenced based on theindividual sentencing factors that the Miller court directed the trial courtsto consider when sentencing a juvenile offender for a homicide conviction.

63. People v. Jordan (2015) 235 Cal.App.4th 198, the Fourth AppellateDistrict, Division 1 held that the trial court did not impose unconstitutionalsentences on the three defendants who participated in this robbery/murder,even though all were 17-years old at the time of the commission of theseacts. The Court of Appeal found that the sentence of 50 years to life inprison, for the defendant who personally shot the victim, did not constitutecruel and unusual punishment, where the trial court reasonably weighedrelevant factors, including the defendant’s maturity, the sophistication ofthe robbery scheme, his commission of a robbery several days earlier, hisadmission that he enjoyed committing violent crime, the fact that crime

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was motivated by "pure greed," lack of mitigating factors in terms offamily and social background, use of a weapon, and lack of remorse. (SeeMiller v. Alabama (2012) 567 U.S. [132 S.Ct. 2455].) The sentences of 25years to life for the other two juvenile defendants, who did not shoot thevictim, but were convicted of first-degree murder under the felony-murderrule did not constitute cruel and unusual punishment, where the sentenceswere not disproportionate to the defendants’ individual level ofresponsibility, given that they actively participated in a sophisticatedrobbery scheme and were active members of criminal street gangs.

64. People v. Scott REVIEW GRANT AND HOLD; FORMERLY AT: (2015)235 Cal.App.4th 397, the Fourth Appellate District, Division 2 held that itis not cruel and unusual punishment to impose a sentence of 120-years tolife on a juvenile for three counts of attempted murder with firearmenhancements given the fact that under section 3051 he would be eligiblefor parole review in 25 years. This is just another in the line of cases thatsplit on whether the sentence must be constitutional on its face now since adefendant cannot rely on the fact that section 3051 may still be in place inthe future.

65. In re Willover REVIEW GRANTED AND DEFERRED; FORMERLYAT: (2015) 235 Cal.App.4th 1328, the Sixth Appellate District held thatMiller v. Alabama (2012) 132 S.Ct. 2455, which held that "mandatory lifewithout parole for those under the age of 18 at the time of their crimesviolates the Eighth Amendment’s prohibition on 'cruel and unusualpunishments'", created a substantive change in constitutional interpretationwhich applies retroactively to defendants whose convictions were finalprior to the decision. Section 1170, subdivision (d)(2), which provides aprocedural mechanism for resentencing to defendants who were under theage of 18 at the time of the commission of their offenses and who weregiven LWOP sentences, does not provide a substitute for the resentencingprocess mandated by Miller. The trial court’s consideration of a sentenceless than LWOP at the time of original sentencing, prior to Miller andsection 1170, subdivision (d)(2), did not satisfy Miller’s requirements. Itis possible that the court may have erroneously treated LWOP as apresumptive sentence, and comments at sentencing indicated judge did notconsider all of the Miller factors.

66. People v. Garcia (2015) 240 Cal.App.4th 1282, the Fourth AppellateDistrict, Division 2 held that the defendant’s overall sentence of 32 yearsto life in prison for a crime committed at the age of 15 did not constitutecruel and unusual punishment because defendant would "be eligible forrelease on parole by the board during his or her 25th year of incarcerationat a youth offender parole hearing" pursuant to section 3051.

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67. People v. Dokins (2015) 241 Cal.App.4th 1179 the Second AppellateDistrict, Division 8 held that averments in counsel’s affidavit that jurorsmade in post-trial interviews which expressed sympathy for the parents ofchild who was killed, and revulsion at the defendant’s gang affiliation andracist statements, and that such sentiments had caused jurors to overlookinconsistencies in prosecution witnesses’ testimony, failed to establishjuror misconduct. (See People v. Steele (2002) 27 Cal.4th 1230, 1261;Evid. Code §1150.) The trial judge erred in sentencing the defendant, whowas 15 years of age at the time of the crime, to a minimum of 90 years inprison without considering the factors discussed in Miller v. Alabama(2012) 132 S.Ct. 2455. The matter is remanded for a new sentencinghearing.

68. People v. Lozano (2016) 243 Cal.App.4th 1126, the Second AppellateDistrict, Division 5 held that, where the defendant was sentenced to lifeimprisonment without possibility of parole for a murder committed whileshe was a minor, but granted a new sentencing based on the interveningdecision in Miller v. Alabama (2012) 567 U.S. ___ [132 S.Ct. 2455, 183L.Ed.2d 407], the trial court erred in ruling that the defendant’s profferedevidence of her conduct in prison was inadmissible. Our Supreme Courtin People v. Gutierrez (2014) 58 Cal.4th 1354, 1389 (Gutierrez) held that,under Miller, “a sentencing court must consider any evidence or otherinformation in the record bearing on ‘the possibility of rehabilitation’”before imposing an LWOP sentence on a juvenile who kills. We thereforeconclude the trial court erred in excluding Lozano’s evidence ofrehabilitation in prison, and reverse and remand for a new sentencinghearing.

69. People v. Cornejo (2016) 243 Cal.App.4th 1453, the Third AppellateDistrict held resentencing was required where the defendants committedmurder while below the age of 18. Record was unclear as to whether thetrial court properly took into consideration all mitigating circumstancesattendant in each defendant’s life, including but not limited to hischronological age at the time of the crime and his physical and mentaldevelopment, before imposing a functionally equivalent LWOP sentence,(120 to life plus a determinate term.) In Miller v. Alabama (2012) 567U.S. ___, ___ [132 S.Ct. 2455, 2458, 183 L.Ed.2d 407], the United StatesSupreme Court held the Eighth Amendment forbids a state frommandating the imposition of an LWOP sentence on a juvenile homicideoffender. (Id. at p. 2469.) The court explained: “Mandatory life withoutparole for a juvenile precludes consideration of his [or her] chronologicalage and its hallmark features—among them, immaturity, impetuosity, andfailure to appreciate risks and consequences. It prevents taking intoaccount the family and home environment that surrounds him [orher]—and from which he [or she] cannot usually extricate himself [or

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herself]—no matter how brutal or dysfunctional. It neglects thecircumstances of the homicide offense, including the extent of his [or her]participation in the conduct and the way familial and peer pressures mayhave affected him [or her]. Indeed, it ignores that he [or she] might havebeen charged and convicted of a lesser offense if not for incompetenciesassociated with youth—for example, his [or her] inability to deal withpolice officers or prosecutors (including on a plea agreement) or his [orher] incapacity to assist his [or her] own attorneys. [Citations.] Andfinally, this mandatory punishment disregards the possibility ofrehabilitation even when the circumstances most suggest it.” (Id. at p.2468.) The court concluded: “Although we do not foreclose a sentencer’sability to [impose an LWOP sentence on a juvenile] in homicide cases, werequire it to take into account how children are different, and how thosedifferences counsel against irrevocably sentencing them to a lifetime inprison.” (Id. at p. 2469.) Subsequently SB 260, was passed, (see § 3051)wherein it is required to give the young defendant parole hearing after acertain number of years. Despite this safety net, the legislation does notsubstitute for the sentencing court's consideration of all individualcharacteristics of the offender as proscribed by Miller. In short, ourSupreme Court has recognized a statutory promise of future correction of apresently unconstitutional sentence does not alleviate the need to remandfor resentencing that comports with the Eighth Amendment. Accordingly,with respect to both minors, we conclude the matter must be remanded tothe trial court for a new sentencing hearing that meet constitutionalrequirements.

70. Montgomery v. Louisiana (2016) U.S. , reported on January 26, 2016,in 2016 Los Angeles Daily Journal 778, the United States Supreme Courtheld that Miller v. Alabama’s (2012) 567 U.S. ___, ___ [132 S.Ct. 2455,2458, 183 L.Ed.2d 407] ban on life-without-parole sentences for juvenileoffenders is a new substantive rule of constitutional law that must be givenretroactive effect on state collateral review. Therefore, the petitioner, whohas been in custody for over 50 years, should now have the opportunity tohave either a new sentencing or possibly a parole hearing.

71. People v. Peoples (2016) 62 Cal.4th 178, the California Supreme Courtheld that penalty retrial, after eight jurors in the first penalty trial votedagainst the death penalty, did not violate the Eighth Amendment’sguarantee of "heightened reliability" in capital cases, nor did it violatedefendant’s right to a fair trial or his Eighth Amendment right againstcruel and unusual punishment. Exclusion of the defendant’s hearsaystatements, offered in penalty phase to show remorse, was not an abuse ofdiscretion and did not deprive defendant of his constitutional right topresent mitigating evidence. The trial court’s ruling that members of thehung jury could not testify for the defense at the penalty phase retrial, on

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the ground that the risk of confusion outweighed any probative value suchtestimony would have, was not an abuse of discretion.

72. In re Kirchner (2016) 244 Cal.App.4th 1398, the Fourth AppellateDistrict, Division 1 held that Miller v. Alabama (2012) 132 S.Ct. 2455 andPeople v. Gutierrez (2014) 58 Cal.4th 1354 apply retroactively in statecollateral proceedings and require that inmates serving life terms forcrimes committed while they were juveniles must, except in the mostextraordinary circumstances, be given an opportunity to seek parole.(Montomery v. Lousiana (2016) 567 U.S. ,[135 S.Ct. 1546, 191 L.Ed.635]. However, state legislation, section 1170, subdivision (d)(2),providing such inmates an opportunity to obtain a parole hearing hasremedied any constitutional defect in the inmate's sentence. The Court ofAppeal found that this is an adequate remedy at law, and is required beforethe defendant can file a habeas petition. The Court of Appeal also foundthat this ruling does not conflict with the holding in Gutierrez. Thedefendant has a right to bring a petition under section 1170, subdivision(d)(2).

IV. CRC COMMITMENT

1. People v. Fielder (2004) 114 Cal.App.4th 1221, the Second AppellateDistrict, Division 4, held, following a rehearing, that in order forprosecution to avoid application of the 5-year “washout” provision of fora one-year prior prison term within the meaning of section 667.5, subd.(b), the prosecution must prove beyond a reasonable doubt that thedefendant either committed a new offense resulting in a felony convictionor was in prison custody during that period. The Court of Appeal alsofound that even though a CRC commitment is not a prior prison term, theconviction of the offense which sent appellant to CRC is a conviction thatprevents the washout period from taking effect. However, given the factthat the documents presented to the court did not establish when the 1993conviction, which led to one of the CRC commitments, was “committed,”the evidence was insufficient to establish that there was not a 5 year periodleading up to the 1997 conviction when appellant was state prison free andfelony conviction free. Therefore, the matter was remanded to the superiorcourt to determine if the prior will be retried.

2. People v. Chavez (2004) 116 Cal.App.4th 1, the Fourth Appellate District,Division 1 held that the court did not err in failing to consider appellant forCRC based on a driving under the influence offense, with priors, whichmade the current offense a felony. Welfare and Institutions Code section3051 that such a refer to CRC can be made if the defendant is addicted toor in imminent danger of being admitted to narcotics. Narcotic drugs are

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defined in Health and Safety Code section 11019, and it does not includealcohol.

3. People v. Mitchell (2004) 118 Cal.App.4th 1145, the Second AppellateDistrict, Division 1, held that where a defendant is resentenced after beingcommitted for treatment to California Rehabilitation Center, but beingfound ineligible for such commitment, do to a medical condition nottreatable at CRC, was entitled to both pre-sentence good conduct creditsafforded by section 4019 and post-sentence “worktime” credits afforded bysection 2933, for the entire period between the original imposition ofsentence and resentencing. (See also People v. Nubla (1999) 74Cal.App.4th 719.)

4. People v. Jeffery (2006) 142 Cal.App.4th 192. The Second AppellateDistrict, Division 6 held that the court’s statement that it would notcommit eligible defendant to California Rehabilitation Center for a“variety of reasons” did not comply with requirement of California Rulesof Court, Rule 4.406(b)(9), that reasons be stated with specificity. Thetrial court may not “parrot” the statutory language when refusing to initiatecommitment proceedings. (People v. McGinnis (2001) 87 Cal.App.4th592, 595.) Given the fact that the court did not put on the record thenecessary reasons, remand is required even if record would support denial.

5. People v. Murray (2007) 155 Cal.App.4th 149, the Fifth Appellate Districtheld that where court suspended execution of sentence, and prisonrepresentative in other county notified probation officer that the defendantwas incarcerated as a result of a subsequent conviction, the probationofficer’s failure to timely report the commitment to the court in accordancewith section 1203.2(a), divested the court of jurisdiction to directexecution of suspended sentence. (See People v. Holt (1991) 226Cal.App.3d 962, 967; see also Pompi v. Superior Court (1982) 139Cal.App.3d 503, 507-508.) The purpose of section 1203.2a is to provide amechanism by which the probationary court can consider imposing aconcurrent sentence, and to preclude inadvertent imposition of consecutivesentences by depriving the court of further jurisdiction over the defendantwhen the statutory time limits are not observed. (In re Hoddinott (1996)12 Cal.4th 992, 999.)

6. People v. Sanders (2009) 170 Cal.App.4th 1236, the Third AppellateDistrict held that the defendant may waive his right under Welfare andInstitutions Code section 3053 to a return hearing if he is not admitted toCRC. Where the defendant was fully informed on record that the trialcourt would not modify his sentence if he were excluded from CRC, evenif the defendant were present at the return hearing, his request to modifythe sentence previously imposed and stayed pending commitment would

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“fall on deaf ears,” and so he did not suffer any injury and therefore couldnot demonstrate prejudice resulting from the waiver.

V. CREDITS

A. NO APPRENDI ON CREDIT LIMITATION UNDER 2933.1

1. People v. Garcia (2004) 121 Cal.App.4th, the Second Appellate District,Division 7, held that the court, during a sentencing hearing, makes thedetermination whether “another person, other than an accomplice, waspresent in the residence” during commission of first degree burglary,which makes the offense a “violent felony” (see § 667.5, subd. (c)(21)) tolimit conduct credits to 15% within the meaning of section 2933.1. TheCourt of Appeal found that there is no federal or state constitutional rightor state statutory right to a jury trial on this issue even after Apprendi asthe limitation on credits does not add to the defendant’s maximumconfinement time for the first degree burglary.

B. 2933.5 CREDITS (OR NOT)

1. People v. Torres (2005) 127 Cal.App.4th 1391, the Second AppellateDistrict, Division 1, held that section 2933.5, subd. (a)(2)(O) prohibits anaward of conduct credits to a defendant convicted of any felony in whichthe defendant personally inflicted great bodily injury, pursuant to section12022.53 or section 12022.7, and applies only to a defendant who haspreviously committed two or more times, on charges brought and triedseparately (§ 667, subd. (a)(1), and who has served two or more prisonterms (§ 667.5, subd. (b)).

C. 2933.1 LIMITATIONS FOR VIOLENT AND NON-VIOLENT OFFENSES

1. In re Reeves (2005) 35 Cal.4th 765, the California Supreme Court heldthat where defendant was sentenced in single proceeding to prison term fora violent felony and to a concurrent term for other crimes which arosefrom a separate act, and pled to in a separate proceeding, the section2933.1, subd. (a) 15% limitation on custody credits for violent felonsapplies only to term for violent felony and not to aggregate term. In otherwords, where the defendant completes the prison term for the violentoffense, but remains incarcerated on the cases for which he is serving aconcurrent sentence for the non-violent offense(s), he is entitled to thegreater credit for the remaining period in which he is only serving time forthe non-violent offense(s).

2. People v. Nguyen (2005) 130 Cal.App.4th 350, the Fourth AppellateDistrict, Division Three held that the defendant’s attempt to call her

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attorney during her arrest did not constitute an unambiguous invocation ofher right to counsel under Edwards v. Arizona (1981) 451 U.S. 477 [68L.Ed.2d 378, 101 S.Ct. 188], where the arresting officer made no attemptto interrogate. The police obtained a Miranda waiver prior tointerrogation, but were not required to assume that purpose of call to theattorney was to obtain advice regarding the potential interrogation.

3. In re Phelon (2005) 132 Cal.App.4th 1214, the First Appellate District,Division 2, held that the court’s staying of a count within the meaning ofsection 654, that involved a violent felony, precludes the Department ofCorrections from applying the 15% credit limitation to the time appellantis to serve in state prison (see In re Reeves (2005) 35 Cal.4th 765), and thetrial court correctly declined to apply the limitation to presentence creditsfor the same reason.

4. In re Tate (2006) 135 Cal.App.4th 756, the Fifth Appellate District heldthat consistent with In re Reeves (2005) 35 Cal.4th 765, that a prisonerwho commits an in prison, non-violent crime, is entitled to earn 50%credits on that term after he has served the out of prison term for theviolent crime which was limited to 15% pursuant to section 2933.1. Therefore, once the defendant has served the entire term for the violentcrime, any remaining time for the non-violent offense is served at 50% andnot 15 %.

5. In re Pacheco (2007) 155 Cal.App.4th 1439, the Second AppellateDistrict, Division 6 held that where the defendant was convicted ofinflicting corporal injury on a cohabitant (§ 273.5), admitted the GBIenhancement under section 12022.7, subd. (a), and the court exercised itsdiscretion to strike, in the interests of justice, the additional term forinflicting great bodily injury, but did not strike the GBI finding itself, thedefendant was still subject to the 15% credits limitation for a violent felonpursuant to section 2933.1, rather than the 50 % allowed in the case ofnonviolent felons which is what the section 273.5 offense is classified. The court rejected appellant’s argument pursuant to People v. Reeves(2005) 35 Cal.4th 765, that section 2933.1, subd. (a) has no applicability ifthe defendant is not serving a term for a violent felony. The court simplyfound that it is the conviction, not the sentence, which effects thepercentage of credits that can be earned.

6. People v. Nunez (2008) 167 Cal.App.4th 761, the Second AppellateDistrict, Division 8 held that where the court sentences the defendant to concurrent state prison terms for two offenses, only one of which was aviolent offense, 15 percent limitation pursuant to section 2933.1for violentoffenders, applied to both terms. The court drew from the SupremeCourt’s lack of criticism of People v. Ramos (1990) 50 Cal.App.4th 81

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wherein that court held that the credit limitation applies to the offender,not the offense, supports this conclusion, and it is not determinative if thesentence is concurrent or consecutive for the 15% limitation to apply.

7. People v. Kimbell (2008) 168 Cal.App.4th 904, the Second AppellateDistrict, Division 8 held that even though the trial court officiallydischarged the jury, after the jury had rendered its verdict under section1164, then the prosecutor advised court that the jury was not waived forthe trial on the defendant’s prior convictions, and before the jurors hadeven left jury box, the trial court retained jurisdiction to reconvene thejury. If the verdict is incomplete or otherwise irregular, the court retainsjurisdiction to reconvene the jury if the jury has not yet left the court’scontrol. (See People v. Hendricks (1987) 43 Cal.3d 584, 597.) Additionally, the court held that section 2933.1's 15% limitation onpresentence custody credits is applicable only when defendant’s feloniesare listed as violent felonies, and since the defendant was not convicted ofa crime listed as a violent felony under section 667.5, subdivision (c),appellant was awarded those credits under section 4019, and given hisproper good/work time credits as calculated pursuant to People v. Culp(2000) 100 Cal.App.4th 1278.

8. People v. Hamlin (2009) 170 Cal.App.4th 1412, the Third AppellateDistrict held that trial court did not err in applying 15 percent limit to time,pursuant to section 2933.1, deemed served on his misdemeanorconvictions.

9. In re Gomez (2009) 179 Cal.App.4th 1272, the Fourth Appellate District,Division 3 held that where the court stays the sentence for the violentfelony conviction of a crime that would qualify for credit limitation undersection 2933.1 had it not been stayed behind other convictions, thedefendant is not limited to the 85 percent credit limitation. Section2933.1, subdivision (a) has no application to a prisoner who is not actuallyserving a sentence for a violent offense. (In re Phelon (2005) 132Cal.App.4th 1214, 1219.)

10. In re Pope (2010) 50 Cal.4th 777, the California Supreme Court held thatwhere the defendant pled guilty to gross vehicular manslaughter, anonviolent felony, but also to two felony counts of alcohol-related drivingand to great bodily injury enhancements, which turned them into violentfelonies, appellant was subject to section 2933.1, subdivision (a)'s 15%limit on worktime credits, even though the court had stayed sentence onthe two violent felonies pursuant to section 654. Section 2933.1,subdivision(a), which provides that it applies to “any person who isconvicted of” a violent felony notwithstanding any other law, clearly and

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unambiguously constituted an exception to section 654 and applied to thedefendant's vehicular manslaughter conviction.

11. People v. Brewer (2011) 192 Cal.App.4th 457, the First Appellate District,Division 4 held that Defendant was entitled to presentence conductpursuant to section 4019, even though limited by section 2933.1,subdivision (a) to 15% credit even though he was sentenced to anindeterminate prison term with a maximum term of life imprisonment. (See People v. Philpot (2004) 122 Cal.App.4th 893.)

12. In re Borlik (2011) 194 Cal.App.4th 30, the Sixth Appellate District heldbased on the Supreme Court ruling in In re Pope (2010) 50 Cal.4th 777 [§2933.1, limiting conduct credits to 15 percent for violent felons applieswhen the defendant is convicted of both violent and nonviolent felonies,even when the sentence for the violent felony is stayed pursuant to § 654],applies retroactively, even to inmates who were released before the casewas decided. (See People v. Guerra (1984) 37 Cal.3d 385, 399; People v.Watson (2008) 43 Cal.4th 652, 688.) Retroactive application of In re Popedid not violate the defendant's right to due process, absent showing that thedefendant relied on a contrary interpretation in entering his guilty plea.

13. People v. Torres (2011) 198 Cal.App.4th 1131, the Sixth AppellateDistrict held that witness dissuasion under section 136.1, subdivision(b)(1) is not a violent felony as there is no gang allegation attached;therefore, the court could not impose an enhancement under section 667.5,subdivision (a). Additionally, since the current offense is not a violentfelony, the credit limitation under section 2933.1, was improperly applied,and the defendant was eligible for credits under section 4019.

14. People v. Fong (2013) 217 Cal.App.4th 263, the Sixth Appellate Districtheld that section 2933.1, applies to any defendant subject to the section12022.7, the great-bodily-injury enhancement. The 1995 amendment tothat section, which eliminated the requirement of proving specific intent tocause such injury in order to apply the enhancement, also eliminated anyrequirement that such intent be proven in order for section 2933.1 to apply.

15. People v. Jacobs (2013) 220 Cal.App.4th 67, the Sixth Appellate Districtheld that the limitation of conduct credit in section 2933.1 applied to bothcases which were imposed concurrently. (See People v. Nunes (2008) 167Cal.App.4th 761, 765 [§ 2933.1 applies to the offender not the offenseirrespective of whether all of the offenses come within § 667.5, subd. (c).)

16. People v. Valenti (2016) 243 Cal.App.4th 1140, the Second AppellateDistrict, Division 3 held that since both sections 288.5 and 288,subdivision (a) are violent felonies under section 667.5, subdivision (c),

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the defendant is limited to 15% local conduct credits under section 2933.1.Because the terms of section 2933.1 apply to the defendant and not theoffense, the statute limits the conduct credits to all counts, not mere theones listed as violent felonies.(People v. Palacios (1997) 60 Cal.App.4th252.)

D. PRESENTENCE CREDITS PER 2933.2

1. People v. Reyes (2008) 165 Cal.App.4th 426, the Second AppellateDistrict, Division 8, held that section 2933.2, a statute effective June 3,1998, depriving murder defendants of presentence conduct credits, doesnot apply to crimes committed prior to that date.

2. People v. Johnson (2010) 183 Cal.App.4th 253, the Third AppellateDistrict held that the provisions of section 2933.2 which deny credits tothose convicted of murder do not allow credits under sections 4019 and2933, those provisions that concern conduct and work time credits. Thetrial court awards custody credits from the time of the defendant's arrest tothe time he is remanded to state prison. Any additional time spent incounty jail before delivery to the state prison, even for a motion toreconsider sentence, is calculated by the agency to which the defendantwas committed. (§ 2900.5, subds. (b), (d), (e).)

3. People v. Duff (2010) 50 Cal.4th 787, the California Supreme Court heldthat section 2933.2 pertaining to presentence conduct credits to thoseconvicted of murder applies to a defendant whose sentence for murder wasstayed pursuant to section 654.

4. In re Maes (2010) 185 Cal.App.4th 1094, it looks like no credit for anyoneconvicted of murder means no credit, no matter what; it is a broad &complete prohibition applied to all parts of the sentence.

5. People v. Moon (2011) 193 Cal.App.4th 1246, the Third Appellate Districtheld that section 2933.2 prohibits the award of conduct credits to thoseconvicted of murder, even when granted probation since many cases findthat the defendant is convicted upon the return of the guilty verdict or pleaadmitting guilt. (People v. Davis (2010) 185 Cal.App.4th 998, 1001.)

E. CREDITS ON PROBATION CASES

1. People v. Gonzalez (2006) 138 Cal.App.4th 246, the Sixth AppellateDistrict held that where the defendant was arrested on new charge whileon probation for a domestic violence case; probation was revoked in thedomestic violence case as a result. Appellant completed his sentence onthe domestic violence case, and remained in custody through the

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sentencing on the new case; custody and conduct credits, less thoserequired to complete his sentence in earlier case, should have been grantedagainst the new sentence and not the earlier case so as to avoid dead time. (See People v. Marquez (2003) 30 Cal.4th 14, 20-21 [unlike in Bruner andIn re Joyner (1989) 48 Cal.3d 487, the choice is not between awardingcredit one or twice, but awarding credit once so to avoid dead time].) Byawarding all of the custody credits to the domestic violence case, thenumber of credits allocated exceeded the sentence imposed in that case. Therefore, the credits had to be reallocated so as to avoid dead time. (People v. Bruner (1995) 9 Cal.4th 1178, 1183.)

2. People v. Turner (2007) 155 Cal.App.4th 1432, the Third AppellateDistrict held that probation conditions, (1) prohibiting defendant fromassociating with persons under age 18 is unconstitutionally vague andoverbroad to the extent that it prohibited him from associating with suchpersons even if he did not know, and could not reasonably know, that aperson was under that age. (See In re Sheena K. (2007) 40 Cal.4th 875);and (2) also vague and overbroad is the condition prohibiting thedefendant from possessing sexually stimulating materials to the extent thatit prohibited him from possessing materials without notice from theprobation officer that specific materials were considered sexuallystimulating. Additionally, the probation condition prohibiting defendantfrom patronizing places where sexually stimulating materials are availablewas vague and overbroad to extent it prohibited defendant frompatronizing places that he did not know, and did not have reason to know,had such materials available.

3. People v. Pruitt (2008) 161 Cal.App.4th 637, the Second AppellateDistrict, Division 7 held that where a probationer is arrested and jailed ona new offense, and thereafter the same conduct that led to the arrest isalleged in a probation violation, and probation is revoked, and theviolation is upheld after a hearing, and the previously stayed prisonsentence is imposed (for the prior offense), the probationer is not entitledto credits pursuant to section 2900.5, subdivision (b) for the time spent injail on the new charges, and prior to the summary revocation of probation. (See People v. Huff (1990) 223 Cal.App.3d 1100 [credit is precluded forthe sentence in one offense when custody is solely attributed to anotheroffense].) The Court of Appeal found that Huff did not conflict withPeople v. Williams (1992) 10 Cal.App.4th 827 or People v. Bruner (1995)9 Cal.4th 1178 as this case and Huff are not “multiple restraint” cases.

4. People v. Stump (2009) 173 Cal.App.4th 1264, the Fourth AppellateDistrict, Division 3 held that where the defendant engaged in a course ofillegal conduct that encompassed certain independent acts, none of whichwere illegal per se but were a violation of his parole, in addition to driving

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while under the influence of alcohol, both Vehicle Code section 23152,subds. (a) and (b), the defendant did not show that “but for” having drivenunder the influence of alcohol he would not have been held in custody forthe time in question and thus was not entitled to good conduct credit. (SeePeople v. Bruner (1995) 9 Cal.4th 1178, 1192 [no credit unless theconduct leading to the sentence was a true and only unavoidable basis forthe earlier custody].)

5. People v. Nunez (2013) 220 Cal.App.4th 1527, the Fourth AppellateDistrict, Division 2 held that where probation has been revoked for exactlythe same conduct that forms the basis of a new criminal charge, then creditfor time served for both the new case and the case in which probation hasbeen revoked is appropriate (see People v. Johnson (2007) 150Cal.App.4th 1467, 1485). The Court of Appeal determined that thedefendant should have additional custody credits than awarded by the trialcourt. However the ca also held that, in part due to realignment, section1170, subdivision (h)(5)) when the defendant has a mandatory supervisionperiod, there is no statutory authority to reduce a defendant's mandatorysupervision period on probation as opposed to parole. (See In re Ballard(1981) 115 Cal.App.3d 647 [excessive time spent in custody comes off ofthe parole period].)

F. WAIVER ISSUES

1. People v. Juarez (2004) 114 Cal.App.4th 1095, the First AppellateDistrict, Division 2, held that within the meaning of People v. Johnson(2002) 28 Cal.4th 1050, wherein the California Supreme Court held that adefendant’s agreement to waive presentence credits is binding on thedefendant even though he would serve more than the maximum time ofconfinement if sent to state prison, the lower court did not err as the recordestablished that the trial court was fully acquainted with the defendant’scase and made an informed decision to require the waiver of custodycredits as a further incentive to complete his rehabilitation, trial courtproperly exercised discretion and did not require the waiver of time-servedcredits as part of any preconceived standard practice. Trial court may notroutinely impose a term of probation conditioned on defendant’s waiver ofcustody time credit but must exercise its discretion in determining when itis appropriate to do so.

2. People v. Arnold (2004) 33 Cal.4th 294, the California Supreme Courtheld that where the defendant knowingly and intelligently waives jail timecustody credits (see People v. Johnson (1978) 82 Cal.App.3d 183), afterviolating probation in order to be reinstated on probation thereby avoidinga prison sentence, the waiver applies to any future use of such creditsshould probation ultimately be terminated and a state prison sentence

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imposed. The court only dealt with the waiver of pre-sentence credits andwhether the waiver will be applied to a subsequent state prison sentence.

3. People v. Jeffrey (2004) 33 Cal.4th 312, the California Supreme Courtheld that where the defendant knowingly and intelligently waives futurecredits to be earned in a residential drug or alcohol treatment facility, inorder to be placed on probation (see People v. Johnson (2002) 28 Cal.4th1050, 1054-1055), and thereby avoid a prison sentence, the waiver appliesto any future use of such credits should probation ultimately be terminatedand a state prison sentence is imposed. The result is consistent with thecourt’s companion case in People v. Arnold (2004) 33 Cal.4th 294.

4. People v. Hilger (2005) 131 Cal.App.4th 1528, the Second AppellateDistrict, Division 8, held, consistent with People v. Jeffrey (2004) 33Cal.4th 312, and People v. Arnold (2004) 33 Cal.4th 294, where thedefendant pled guilty and accepted probation offered by trial court on thecondition that he waive custody credits, the waiver applied to all forms ofsuch credit, including credit for time spent in a treatment program, absentan express limitation placed on the scope of the waiver by the trial court orby the defendant. Additionally, the Court of Appeal found, also consistentwith Arnold, supra, that the court need not advise the defendant that a“Johnson waiver” [defendant understands the waiver’s effect on hiseventual sentence], applies to both county and state prison time. Here, thedefendant did not expressly limit his waiver to county jail, therefore he isnot entitled to recapture his custody credits to reduce his time in stateprison.

5. People v. Black (2009) 176 Cal.App.4th 145, the Fourth AppellateDistrict, Division 2 held that appellate was not entitled to section 4019conduct credits or section 2900.5 credits for the time spent in a drugtreatment program, given the waiver of those credits prior to entering thedrug program, and there was insufficient proof to establish that the waiverwas not voluntary nor based on counsel's insufficient explanation of thewaiver, so therefore, there was no IAC. (See People v. Jeffrey, supra, 33Cal.4th at pp. 317-320.)

6. People v. Urke (2011) 197 Cal.App.4th 776, the Third Appellate Districtheld that the defendant did not knowingly and intelligently waive hiscustody credits pursuant to People v. Johnson (2002) 28 Cal.4th 1050. (See also People v. Arnold (2004) 33 Cal.4th 294, 307; People v. Mendoza(2009) 171 Cal.App.4th 1142, 1154, fn. 6.)

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G. CUSTODY CREDITS WITHIN THE MEANING OF SECTION 2900.5 AREAWARDED FROM THE TIME THE DEFENDANT IS OFFICIALLY BOOKEDINTO CUSTODY

1. People v. Ravaux (2006) 142 Cal.App.4th 914, the Fourth AppellateDistrict, Division 1 held that it was not error to deny the section 2900.5,subd. (a) credits, where the defendant is not in custody prior to beingprocessed into a jail, camp, work furlough facility, halfway house,rehabilitation facility, hospital, prison, juvenile detention facility, orsimilar residential institution. The court awarded the correct number ofcustody credits to the defendant by calculating the credits beginning at thetime he was booked into jail and excluding one additional day of custodycredit for the time he spent in police custody prior to his official booking.

2. People v. Kunath (2012) 203 Cal.App.4th 906, the Second AppellateDistrict, Division 6 held that where a defendant is arrested for possessionfor sale of narcotics, released on bail, is then arrested for an unrelated drugcharge, and ultimately pleads guilty on both offenses at the same time, andis sentenced to concurrent 16-month prison terms, he is entitled topresentence credits on both cases. (People v. Bruner (1995) 9 Cal.4th1178, 1192, fn. 9. [when concurrent sentences are imposed at the sametime, presentence custody is credited against all].) Also credits are givenon both offenses if the time imposed is consecutive. (People v. Schuler(1977) 76 Cal.App.3d 324, 330.) Section 2900.5 is intended to provideequitable treatment for one held in pretrial custody on mere charges ofcrimes. Where, as here, the defendant's custody is solely presentence onall charges and he is simultaneously sentenced on all charges to concurrentterms, the policy behind section 2900.5 applies.

3. People v. Jacobs (2013) 220 Cal.App.4th 67, the Sixth Appellate Districtheld that the defendant who was arrested, posted bail, and wassubsequently arrested on unrelated charges and held in custody for a newperiod of time, prior to a plea agreement that covered both cases, was notentitled to presentence custody credit under section 2900.5 againstsentence imposed in first case for time served after second arrest and thetime was to be served concurrently. (See People v. Bruner (1995) 9Cal.4th 1178, 1192- 1195; see also People v. Kunath (2012) 203Cal.App.4th 906, 909-911.)

H. PRESENTENCE CREDITS WITH AN EXISTING INSANITY COMMITMENT

1. People v. Callahan (2006) 144 Cal.App.4th 678, the First AppellateDistrict, Division 1 held that where the defendant was charged with a newcriminal offense while confined in a state hospital on an insanitycommitment, and was found incompetent to stand trial on that offense and

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received a new incompetency commitment, the defendant was not entitledto any custody credits against the new commitment because his liberty wasalready restrained by the insanity commitment regardless of pretrialconfinement on the new charge and because there is no right to conductcredit for time spent in the nonpenal confines of a state hospital. PenalCode section 4019 just does not apply.

2. People v. Mendez (2007) 151 Cal.App.4th 861, the First AppellateDistrict, Division 1, held that the court erred in awarding the defendantpre-sentence custody credits for time spent at state mental hospital prior toentering jail, where, even if the court had not ordered him committedbased on mental incompetence, he would have been in the hospitalpursuant to a civil insanity commitment stemming from previous unrelatedcharges. (See People v. Callahan (2006) 144 Cal.App.4th 678, 681-683.)

3. People v. Bryant (2009) 174 Cal.App.4th 175, the Second AppellateDistrict, Division 5 held that where hospital staff reported that thedefendant was competent to stand trial over two months before hospital’smedical director certified defendant was competent to stand trial, equalprotection principles under People v. Sage (1980) 26 Cal.3d 498, 502-503,warranted that “defendant be given conduct credits under section 4019,that would have been earned had he been returned [to] the county jail if atimely restoration certificate had been issued.” (See People v. Nubla(1999) 74 Cal.App.4th 719, 731-732 [similar to being held in CRC, andthen not accepted].)

I. HOME ELECTRONIC MONITORING CUSTODY CREDITS

1. People v. McEwan (2007) 147 Cal.App.4th 173, the Second AppellateDistrict, Division 5 held that the superior court had no jurisdiction toconsider an appeal by the defendant who pled no contest where nocertificate of probable cause was obtained. The notice of appeal attackedthe validity of the plea and did not state an intent to appeal on any groundswhich did not require a certificate of probable cause. The defendant’smotion to construe the appeal as addressing noncertificate grounds was notsupported by a declaration from the defendant, trial counsel, or counsel fordefendant on appeal. (See rule 8.54, subd. (a)(2).)

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J. WHEN EITHER OR BOTH THE PROSECUTION AND THE COURTMISINFORMED THE DEFENDANT REGARDING HIS ELIGIBILITY FORGOOD BEHAVIOR CREDITS, TELLING HIM HE WOULD RECEIVE 15%RATHER THAN 50% HE WAS ENTITLED TO, HIS DUE PROCESS RIGHTSWERE VIOLATED, AND THEREFORE, THE CONVICTIONS AREREVERSED

1. People v. Goodwillie (2007) 147 Cal.App.4th 695, the Fourth AppellateDistrict, Division 1, held that the court did violate the defendant’s right todue process by misinforming him regarding his eligibility for goodbehavior credits, wherein he was entitled to 50% credits and not limited to15% credits as he was told, under a plea bargain offered by theprosecution; where the record established that the defendant would haveaccepted the offer had he been accurately advised. Therefore, theprosecution is required to either reinstate plea offer or set the case forretrial.

2. People v. Miralrio (2008) 167 Cal.App.4th 448, the Third AppellateDistrict held that even though the trial court and the prosecutor misadvisedthe defendant of the potential maximum sentence if he went to trial, it didnot require reversal in the absence of the defendant showing a reasonableprobability that he would have accepted plea offer had he been correctlyadvised. The court rejected appellant’s reliance on People v. Goodwillie(2007) 147 Cal.App.4th 695 which held that the court did violate thedefendant’s right to due process by misinforming him regarding hiseligibility for good behavior credits, wherein he was entitled to 50%credits and not limited to 15% credits as he was told, under a plea bargainoffered by the prosecution; where the record established that the defendantwould have accepted the offer had he been accurately advised.

K. CRUZ WAIVER AND VARGAS WAIVER

1. People v. Vargas (2007) 148 Cal.App.4th 644, the Fourth AppellateDistrict, Division 2 held that where the defendant entered a negotiated pleawith a “Cruz waiver,” (People v. Cruz (1988) 44 Cal.3d 1247) whichprovided that he satisfy certain conditions, including appearance in courton sentencing date and obeying all laws, he would receive a specifiedsentence. However, if he violated one of the conditions he would receivethe statutory maximum. The defendant did appear as scheduled, but bythat time he had committed a new offense. Those facts did not precludethe court from imposing the maximum term sentence. Where the courthad specifically advised the defendant that he would receive statutorymaximum, not merely “up to” such maximum, if he violated theconditions set forth at the time of the plea, the court was not required toconsider a lesser sentence following a violation. The court distinguished

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People v. Jensen (1992) 4 Cal.App.4th 978, and People v. Morris (1979)97 Cal.App.3d 358, wherein the court unilaterally imposed a condition onthe defendant’s plea agreement that the defendant had not negotiated withthe district attorney, and therefore the defendant had not agreed upon. TheCourt of Appeal also found that the Cruz waiver bars the defendant’sassertion that the imposition of upper term based on facts found by judgerather than by jury did not violate Cunningham, Jensen or Morris.

2. People v. Puente (2008) 165 Cal.App.4th 1143, the Fourth AppellateDistrict, Division 2 held that the trial court did not err in denying custodycredits to defendant whose plea bargain included a “Cruz waiver,” (Peoplev. Cruz (1988) 44 Cal.3d 1247, 1254 [the court can sentence defendant inexcess of that agreed upon if he willfully fails to appear for sentencing]),where the credits were explicitly part of the waiver, and defendant violatedthe condition that he appear. Appellant contended that the trial courtdeprived him of due process by not providing him with notice that heallegedly violated the terms of his “Vargas waiver” (People v. Vargas(1990) 223 Cal.App.3d 1107, 1113 [defendant agreed to a specified prisonterm if certain conditions were met and a longer specified term if theywere not]), and by not stating a reason why appellant was found inviolation of his Vargas waiver were not cognizable on appeal in absenceof a certificate of probable cause.

L. HEROIC ACT STATUTE

1. In re Young (2004) 32 Cal.4th 900, the California Supreme Court held thata two-strike defendant, who unquestionably saved a state prison employeefrom choking to death, would qualify for a “reduction” in his termpursuant to section 2935, and that the “credit” limitation in section 667,subd. (c)(5), did not preclude such a reduction for this class of inmate. The term “credits” are different than the “reduction” of sentence pursuantto section 2935, and said section does not use the term “credits” in itprovision.

M. SECTION 4019 AND 2900.5 CREDITS; PRESENTENCE CREDITS

1. People v. Dieck (2009) 46 Cal.4th 934, the California Supreme Court heldthat a defendant is entitled to seven days of presentence credits for the fivedays he spent in jail prior to sentencing (see § 4019, subds. (e) and (f) [“aterm of six days will be deemed to have been served for every four daysspent in actual custody”]) or only five days (see § 4019, subd. (e) [“Nodeduction may be made under this section unless the person is“committed” for a period of six days or longer”]). Section 4019 does notrequire that a defendant spend six days in presentence confinement inorder to be entitled to receive conduct credit. (See People v. Smith (1989)

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211 Cal.App.3d 523.) The statute entitles a defendant to conduct credit ifhe or she is “committed” for, a period of at least six days, without regardto the duration of presentence confinement.

2. People v. Rodriguez (DEPUBLISHED); FORMERLY AT: (2010) 183Cal.App.4th 1, the Fifth Appellate District held that the January 2010amendments to sections 4019 and 2900.5, which contains no savingsclause, may not be applied retroactively to defendants sentenced beforeamendment’s effective date. This court found that the legislature did notmake a clear and compelling implication that the amendment should beapplied retroactively as the Supreme Court ruled in In re Estrada (1965)63 Cal.2d 740. Such prospective-only application does not violate equalprotection. A conduct credit statute within the meaning of People v. Dieck(2009) 46 Cal.4th 934, 939, fn.3), because of its incentive effect, is legallydistinguishable from statutes that reduce punishment in other ways.

3. People v. House (DEPUBLISHED); FORMERLY AT: (2010) 183Cal.App.4th 1049, the Second Appellate District, Division 1 held that theamended section 4019 is retroactive, and follows the rationale of People v.Brown (2010) 182 Cal.App.4th 1354, from the Third Appellate Districtand rejects People v. Rodriguez (2010) 182 Cal.App.4th 535, from theFifth Appellate District. “When the Legislature amends a statute for thepurpose of lessening the punishment, in the absence of clear legislativeintent to the contrary, a criminal defendant should be accorded the benefitof a mitigation of punishment adopted before his criminal convictionbecame final. [Citation.]” (In re Chavez (2004) 114 Cal.App.4th 989,999.) Applying the amendment prospectively does not address the fiscalemergency declared by the Governor.

4. People v. Landon (DEPUBLISHED); FORMERLY AT: (2010) 183Cal.App.4th 1096 , the First Appellate District, Division 2 held that theamendments to section 4019 which change the calculation of presentenceconduct credits, applies retroactively. This court expressly disagrees withPeople v. Rodriguez (2010) 182 Cal.App.4th 535, which held that thecredits were prospective only.

5. People v. Delgado DEPUBLISHED: formerly at: (2010) 184 Cal.App.4th271, the Second Appellate District, Division 6 held that the defendant wasentitled to the amendment to section 4019, for additional credits, where theamendment went into effect after she was sentenced. This is consistentwith People v. Brown (2010) 182 Cal.App.4th 1354; People v. House(2010) 183 Cal.App.4th 1049; and People v. Landon (2010) 183Cal.App.4th 1096.

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6. People v. Norton (DEPUBLISHED); FORMERLY AT: (2010) 184Cal.App.4th 408, the First Appellate District, Division 3 held that,consistent with People v. Landon (2010) 183 Cal.App.4th 1096, People v.Brown (2010) 182 Cal.App.4th 1354; People v. House (2010) 183Cal.App.4th 1049; the defendant was entitled to retroactive application ofamended section 4019.

7. People v. Pelayo (DEPUBLISHED); FORMERLY AT: (2010) 184Cal.App.4th 481, the First Appellate District, Division 5 held that thedefendant was entitled to retroactive application of the amended section4019 for additional conduct credits where the sentence was not yet final ondirect appeal at the time the amendment went into effect.

8. People v. Otubuah (REVIEW DISMISSED); FORMERLY AT: (2010)184 Cal.App.4th 422, the Fourth Appellate District, Division 2 held thatthe amended version of section 4019 does not have retroactive application.

9. People v. Hopkins (DEPUBLISHED): FORMERLY AT: (2010) 184Cal.App.4th 615, the Sixth Appellate District held that the amendedversion of section 4019 does not have retroactive application, and appliesprospectively only.

10. People v. Keating (DEPUBLISHED); FORMERLY AT: (2010) 185Cal.App.4th 364, the Second Appellate District, Division 7 held that theamendments to section 4019, which went into effect on January 25, 2010,and increased the good conduct credits available to a defendant forpresentence custody in a local detention facility, apply to the defendantwhose appeal was pending on that date. The court follows all of thoseother cases that find the amendment apply retroactively and not merelyprospectively.

11. People v. Weber (DEPUBLISHED); FORMERLY AT: (2010) 185Cal.App.4th 337, the Third Appellate District held that the amendment tosection 4019 applied retroactively and applied to appellant. (See People v.Brown (2010) 182 Cal.App.4th 1354.)

12. People v. Euseblo ; (DEPUBLISHED): FORMERLY AT: (2010) 185Cal.App.4th 990, the Second Appellate District, Division 4, line up withthe cases that indicate that the amendment to section 4019 do not applyretroactively in the award of presentence credits.

13. People v. Bacon DEPUBLISHED; formerly at: (2010) 186 Cal.App.4th333, the Second Appellate District, Division 8 held that the amendmentsto section 4019 applied retroactively and applied to appellant.

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14. People v. Jones (DEPUBLISHED); FORMERLY AT: (2010) 188Cal.App.4th 165, the Third Appellate District held that where thedefendant has suffered a prior serious felony conviction, and trial courtstrikes the conviction for enhancement purposes pursuant to section 1385,trial court may, but is not required to, also strike the prior for purposes ofamended section 4019 making him eligible for additional sentencingcredits. (See People v. Lo Cicero (1969) 71 Cal.2d 1186, 1193 [a priorserious felony conviction absolutely denies a defendant an opportunity forprobation, and therefore is an increase in penalty].) A defendant whoseprior serious felony enhancement was stricken under section 1385, andwho was sentenced before section 4019 was amended, is entitled toremand so court may exercise discretion as to whether to strike the priorfor purposes of amended statute.

15. People v. Brewer (2011) 192 Cal.App.4th 457, the First Appellate District,Division 4 held that Defendant was entitled to presentence conductpursuant to section 4019, even though limited by section 2933.1,subdivision (a) to 15% credit even though he was sentenced to anindeterminate prison term with a maximum term of life imprisonment. (See People v. Philpot (2004) 122 Cal.App.4th 893.)

16. People v. Zarate (DEPUBLISHED); FORMERLY AT: (2011) 192Cal.App.4th 939, the Fourth Appellate District, Division 1 held that thetrial court erred by not applying conduct credit for local custody timeserved pursuant to amended version of section 4019, where the defendantwas in custody prior to amendments' effective date but was sentenced afteramendments came into effect. Nothing in the amended version of thestatute permitted the trial court to use a two-part approach in calculatingconduct credit based on whether defendant’s presentence custody wasserved before or after the amendments' effective date.

17. People v. Koontz (DEPUBLISHED); FORMERLY AT: (2011) 193Cal.App.4th 151, the Second Appellate District, Division 6 held thatsection 1385 vests the trial courts with the discretion to strike a priorserious felony conviction, charged as a “strike,” within the meaning ofRomero, in order to afford the maximum allowable presentence conductcredits. The Court of Appeal found this similar to People v. LoCicero(1969) 71 Cal.2d 1186 where the court held that ineligibility for probationbased on a prior conviction is equivalent to an increase in penalty. Similarly, since ineligibility for additional presentence credits undersection 4019 is also an increase in penalty, the court has the power tostrike the serious felony prior. The trial court must exercise its discretion,under Romero and section 1385, whether the strike should be stricken sothat the additional section 4019 credits can be awarded.

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18. People v. Nychay (DEPUBLISHED); FORMERLY AT: (2011) 193 Cal.App.4th 771, the Fourth Appellate District, Division 1 held that thedefendant was not entitled, on remand from the Court of Appeal, to arecalculation of his presentence custody credits under section 4019, whenthe remand is for the court to consider its discretion in setting the amountof the restitution fine. Changing the restitution fine did not alter the timethe defendant was ordered to serve, and therefore there is not recalculationunder People v. Buckhalter (2001) 26 Cal.4th 20, 38.

19. People v. Pacheco (2011) 194 Cal.App.4th 343, the Sixth AppellateDistrict held that a juvenile adjudication is not a “conviction,” (see Welf.& Inst. Code § 203; People v. West (1984) 154 Cal.App.3d 100, 106; seealso People v. Westbrook (2002) 100 Cal.App.4th 378, 382, 385), so theprovision of section 4019 denying increased conduct credits to inmatespreviously convicted of a serious or violent felony does not apply, and thedefendant is awarded the additional credits.

20. People v. James (2011) 196 Cal.App.4th 1102, the Fourth AppellateDistrict, Division 1 held that the prosecution is not required to plead andprove a prior strike, and the court can still consider a dismissed strikewhen determining whether to grant the enhanced custody credit provisionsof Penal Code section 4019; and here the court found that it rendered himineligible to earn the enhanced credits. (Cf. In re Varnell (2003) 30 Cal.4th1132, 1138-39.)

21. People v. Voravongsa (2011) (DEPUBLISHED); FORMERLY AT: 197Cal.App.4th 657, the First Appellate District, Division 1 held that sexoffender registration and prior serious felony convictions are “sentencingfacts” in the context of determining whether addition credits should beawarded under section 4019 that need not be pled or proven. (People v.James (2011) 196 Cal.App.4th 1102; Cf. In re Varnell (2003) 30 Cal.4th1132, 1138-39.) The Legislature envisioned sex offender registration andprior serious felony convictions as among the traditional facts of a crimeor of a defendant's criminal history usually taken into account bysentencing judges. This issue is pending review in a number of cases.

22. Payton v. Superior Court (2012) 202 Cal.App.4th 1187, the FourthAppellate District, Division 3 held that the petitioner was entitled toadditional conduct credits provided by amended section 4019 where all ofhis custody time was served after the effective date of the amendment. Appellant had been placed on probation for an offense that was committedprior to the effective date of the section 4019 amendment.

23. People v. Borg (DEPUBLISHED): FORMERLY AT: (2012) 204Cal.App.4th 1528, the First Appellate District, Division 1 held that the

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2011 amendments to section 4019, that grants custody credits toenumerated classes of prisoners previously denied them, but only withrespect to conduct occurring after the operative date of the amendment,does not deprive those classes of prisoners of equal protection. The Courtof Appeal found that treating such prisoners differently than other classesof prisoners, who were permitted to earn additional credits for pastconduct, had a rational basis in that legislature may have decided that thenature and scope of fiscal emergency required granting additional creditsto the specified classes of prisoners previously denied them only after theeffective date of the amendment. This case is contrary to the holding in atleast Payton v. Superior Court (2012) 202 Cal.App.4th 1187.

24. People v. Gisbert (2012) 205 Cal.App.4th 277, the Fourth AppellateDistrict, Division 3 held that the trial court erred in awarding section 4019,and section 2900.5 credits to the defendant when he was awaiting trial on asecond offense, and while he was already committed to state prison inconnection with an earlier conviction. (See § 2900.5, subd. (b); People v.Bruner (1995) 9 Cal.4th 1178, 1180-1181.) The grant of presentencecredits to which defendant was not entitled made the sentence“unauthorized,” so trial court had jurisdiction to entertain the prosecution'smotion to vacate the credits. (People v. Scott (1994) 9 Cal.4th 331, 354.

25. People v. Brown (2012) 54 Cal.4th 314, the California Supreme Courtheld that former section 4019, which addressed a public fundingemergency by increasing the amount of conduct credit available to someprisoners in local custody, applied prospectively, meaning that qualifiedprisoners in local custody first became eligible to earn credit at theincreased rate beginning on the statute's operative date, January 25, 2010.The equal protection clauses of the federal and state Constitutions do notrequire that former section 4019 be applied retroactively.

26. People v. Cruz (2012) 207 Cal.App.4th 664, the Fifth Appellate Districtheld that changes to sentencing procedures under 2011 RealignmentLegislation, which apply "prospectively to any person sentenced on orafter October 1, 2011," do not apply to a defendant who was sentencedbefore that date, but whose conviction was not yet final on appeal.Prospective-only application of the sentencing changes made by thelegislation does not violate equal protection, since treating the two classesof defendants differently has the rational purposes of limiting the numberof inmates placed in county custody, avoiding costs that courts andcounties would have to absorb as a result of the resentencing of numerousinmates, and maintaining the integrity of the original sentences.

27. People v. Lara (2012) 54 Cal.4th 896, the California Supreme Court heldthat the trial court's discretionary power to strike a prior serious or violent

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felony, "in furtherance of justice" under section 1385, did not authorize thetrial courts to award conduct credits at the increased rate set forth informer section 4019 to sex offenders whose priors were serious felonies,or those with a prior conviction for a serious or violent felony. The trialcourt struck the allegation under section 1385 in order to avoid theenhancements, but when a court has struck a prior conviction allegation ithas not wiped out that conviction as though the defendant had neversuffered it; rather, the conviction remains a part of the defendant's personalhistory and available for other sentencing purposes. (People v. Garcia(1999) 20 Cal.4th 490, 499; In re Varnell (2003) 30 Cal.4th 1132, 1138;People v. Burke (1956) 47 Cal.2d 45, 50-51.)

28. People v. Ellis (2012) 207 Cal.App.4th 1546, the Fifth Appellate Districtheld that the amendment to section 4019 that became operative October 1,2011,and increased sentence credits given to certain prisoners applies onlyto eligible prisoners whose crimes were committed on or after that date.Such prospective-only application does not run afoul of rules of statutoryconstruction or violate principles of equal protection. The court found thatthe prospective-only application is similar to that found in People v.Brown (2012) 54 Cal.4th 314, 318-322, which addressed the amendmentto section 4019 which took effect the January 25, 2010.

29. People v. Kennedy (2012) 209 Cal.App.4th 385, the Sixth AppellateDistrict held that the amendment to section 4019 which awarded greatercustody credit to certain offenders whose crimes were committed on orafter October 1, 2011, did not deprive defendant, who was in custody onthat date as a result of a previously imposed sentence, of equal protectionof the laws. A statute ameliorating punishment for particular offenses maybe made prospective only without offending equal protection, because thelegislature will be supposed to have acted to optimize the deterrent effectof criminal penalties by deflecting any assumption by offenders that futureacts of lenity will necessarily benefit them.

30. People v. Garcia (2012) 209 Cal.App.4th 530, the Second AppellateDistrict, Division 5 held that the sentencing formula for presentencecustody credits under section 4019 was properly based on the statutes ineffect on date the crime was committed, which was that for every fourdays served, defendant would receive 2 days of credit, (see People v.Brown (2012) 54 Cal.4th 314, 318, fn. 4; Payton v. Superior Court (2011)202 Cal.App.4th 1187, 1190), where subsequent amendments to section4019 which had increased the amount of available credits, either wereexpressly made nonretroactive or were repealed before the defendant wassentenced.

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31. People v. Delgado (2012) 210 Cal.App.4th 761, the Fifth AppellateDistrict held that section 1237.1 does not preclude a defendant fromraising, as the sole issue on an appeal, a claim that his or her presentencecustody credits were calculated pursuant to the wrong version of section4019, and he is not just challenging the sentence calculation, which wouldbe precluded on appeal by People v. Acosta (1996) 48 Cal.App.4th 411,415-420.

32. People v. Verba (2012) 210 Cal.App.4th 991, the Second AppellateDistrict, Division 1, held that in applying a conduct credits formula of twodays for every four days in custody, and not calculating the credits at twodays for every two days in custody solely because the defendant committedhis crime prior to October 1, 2011, the effective date of amendments tosection 4019, did not deprive him of equal protection. The distinctionbetween two similarly situated groups of defendants had two rationalbases: (1) saving public funds and (2) preserving the deterrent effect of thelaw with respect to previously sentenced defendants.

33. People v. Rajanayagam (2012) 211 Cal.App.4th 42, the Fourth AppellateDistrict, Division 3 held that there is no equal protection violation forthose defendants who committed there crime(s) and were jailed on and/orafter October 1, 2011, who are entitled to enhanced credits under CriminalJustice Realignment Act, and those defendants jailed on and/or after thatdate for an offense committed before that date, who are not entitled tothose enhanced credits (see People v. Brown (2012) 54 Cal.4th 314), as itrationally balances goals of public safety and cost savings (People v.Hofsheier (2006) 37 Cal.4th 1185 [the two groups must be similarlysituated and treated differently]), and here the two groups are not similarlysituated for purposes of the challenged law.

34. People v. Torres (2012) 212 Cal.App.4th 440, the First Appellate District,Division 3 held that the trial court erred in failing to award custody creditsfor time already served on a modified sentence. The defendant wasoriginally sentenced to 2 years on one case, and then as part of a plea on alater case, that initial sentence was reduced to 8 months, and was actuallycompleted months before the modified sentence was imposed. The Courtof Appeal held that the denial of credits within the meaning of section2900.5, subdivision (b) on the first case from the time the 8 months hadexpired was error under People v. Gonzalez (2006) 138 Cal.App.4th 246[extra time spent in jail on a sentence that was later modified and reducedshould properly have been credited against defendant's sentence on newcharges; unlike in Bruner and Joyner, the choice is not between awardingcredit one or twice, but awarding credit once so to avoid dead time].) Thestrict causation rule of Bruner and Joyner is not applicable where dual

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credits are not sought. (See also People v. Marquez (2003) 30 Cal.4th 14,23.)

35. People v. Tinker (2013) 212 Cal.App.4th 1502, the Sixth AppellateDistrict held that the trial court erred in failing to award the correct creditsunder the September 2010 version of section 2933, subdivision (e),applicable at the time of the offense, and the defendant should have beenawarded one-for-one good conduct credit provisions under this section,rather than two days for every four days served under section 4019, sincethe exclusions to the one for one credits in section 4019 did not apply toappellant.

36. People v. Hul (2013) 213 Cal.App.4th 182, the Fourth Appellate District,Division 3 held that the trial court erred in the credits awarded at the timeof his sentencing. Pursuant to section 2933, subdivision (e)(1), which wasin effect at the time of the defendant's offense, May 2011 (applicable tosentences on or after September 28, 2010 and October 1, 2011), saidsection and section 4019, subdivision (h) gave day-for-day credits to thedefendant for pretrial custody credits. Therefore, under sections 4019,subdivision (h), and 2933, subdivision (e)(1), the 16-month sentence forcocaine possession the trial court imposed would have been served in stateprison, not in county jail. Accordingly, the applicable rate of presentenceconduct credit should have been full, day-for-day credit. (See § 4019,subd. (h).) Therefore, the trial court erred when it imposed the sentenceunder the Realignment Act (§ 1170, subdivision (h)), to be served incounty jail, and only gave the defendant 2 for 1 credits.

37. People v. Denman (2013) 218 Cal.App.4th 800, the Fourth AppellateDistrict, Division 2 held that based on the amendment to section formersection 4019 and former section 2933, subdivision (e)(1), the defendantwas entitled to additional custody credits. (See People v. Brown (2012) 54Cal.4th 2314, 318, 320.) For a period of one year, September 28, 2010,until September 21, 2011, section 2933, subdivisions (e)(1) and (e)(3)were operative. The defendant should be awarded credits from February22, 2010 through September 27, 2010, under former section 4019, whichallowed for two days of conduct credit for every two days spent in localcustody. The defendant is also allowed credits from September 28, 2010until July 8, 2011, under former section 2933, subdivision (e)(1), one dayfor each day conduct credits. On remand the trial court has the authority tocalculate the credits under both former section 4019 and 2933, subdivision(e)(1)). (People v. Tinker (2013) 212 Cal.App.4th 1502, 1508-1509.) Thedefendant recorded false quitclaim deeds that transferred nine propertieshe did not own to himself is properly convicted for filing false documentspursuant to section 115. (See Generes v. Justice Court (1980) 106Cal.App.3d 678, 681-682.)

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38. People v. Jacobs (2013) 220 Cal.App.4th 67, the Sixth Appellate Districtheld that the defendant who was arrested, posted bail, and wassubsequently arrested on unrelated charges and held in custody for a newperiod of time, prior to a plea agreement that covered both cases, was notentitled to presentence custody credit under section 2900.5 againstsentence imposed in first case for time served after second arrest and thetime was to be served concurrently. (See People v. Bruner (1995) 9Cal.4th 1178, 1192- 1195; see also People v. Junath (2012) 203Cal.App.4th 906, 909-911.)

39. People v. Miles (2013) 220 Cal.App.4th 432, the Second AppellateDistrict, Division 5 held that the defendant, committed his crime on June11, 2011, prior to the effective date of the Criminal Justice RealignmentAct of 2011, which took effect October 1, 2011; but he was sentencedafter the effective date of the act, is not entitled to have conduct creditunder section 4019, subdivision (f), for the period after the effective datecalculated under that act. Additionally, section 2933, subdivision (e)(1),was also amended under the act, but the former section had a prior seriousfelony, the defendant's prior conviction barred him from receiving the day-for-dat conduct credit. (See People v. Garcia (2012) 209 Cal.App.4th 530,538.) The rule of lenity (see People v. Tartar (1959) 52 Cal.2d 250, 257),does not apply because legislative intent to apply the benefit of the act onlyprospectively, is clear.

40. People v. Rosales (2014) 222 Cal.App.4th 1254, the Second AppellateDistrict, Division 5 held that section 2933.2, subdivision (c) has not beenexpressly or impliedly repealed by the amendments to section 4019regarding presentence conduct credit awards, and therefore, the trial courtcorrectly limited the conduct credits to 50 days.

41. People v. Ramirez (2014) 224 Cal.App.4th 1078, the Sixth AppellateDistrict held that pursuant to the modifications to section 4019, adefendant who pleaded no-contest to multiple offenses was entitled toadditional presentence conduct credits for offenses he committed on orafter October 1, 2011 than for those offenses he committed before thatdate. Additionally, the Court of Appeal rejected the defendant's contentionthat he should receive the additional credits based on the dates that he wasin custody rather than the dates that the offenses were committed.

42. People v. Chilelli (2014) 225 Cal.App.4th 581, the Second AppellateDistrict, Division 5 held that where the defendant was convicted ofstalking a single victim over a period of nearly three years, a continuoscrime (see People v. Grant (1999) 20 Cal.4th 150, 158-159; People v.Palacios (1997) 56 Cal.App.4th 252, 257), and during that period, section4019 pertaining to conduct credit was amended in such a way that it did

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not favor the defendant. During that 3-year period, the law changed from2-days for every 4-days, to 1-day for 1-day, and then finally, at the end ofhis continuous crime, 2-days for 2-days. Because credits under the 2-dayfor 2-day application can only be given in even number increments, sinceno rounding up is permitted (People v. Dieck (2009) 46 Cal.4th 934, 943),and since the defendant continued his stalking during this final period,where he was "on notice" of the change in the credits, he was given "fairwarning" of their effect (Weaver v. Graham (1981) 450 U.S. 24, 28,application of the amended law to the defendant did not violate the ex postfacto clauses due to the continuing nature of the criminal conduct.

43. People v. Whitaker (2015) 238 Cal.App.4th 1354, the Fourth AppellateDistrict, Division 1, held that where the defendant has served 327 days inactual custody prior to sentencing, he is not entitled to 327 days of conductcredits. Under a formula of two days of conduct credit for every two daysspent in actual custody, he’s entitled to 326 days of conduct credits. Section 4019, subdivision (f) specifies the rate at which prisoners in localcustody may earn credit against their sentences for good conduct. (See Inre Marquez (2003) 30 Cal.4th 14, 25-26.)

44. People v. Hutton (2016) Cal.App.4th , reported on March 16, 2016, in2016 Los Angeles Daily Journal 2485, the Fifth Appellate District heldthat a defendant released from incarceration on "sheriff's parole," when hehad been in county jail, rather than state prison, pursuant to the CriminalJustice Realignment Act, is not "in custody" for purposes of being entitledto credits under section 2900.5, subdivision (a) for a different offense. Adefendant who was sentenced concurrently for an offense and for violatinghis parole as a result of the offense is entitled to presentence custodycredits because his offense was the "but for" cause of his presentencecustody. (See People v. Bruner (1995) 9 Cal.4th 1178, 1181-1182.) Adefendant who is incarcerated on both a parole revocation and a newoffense is subject to a section 667.5, subdivision (b) enhancement basedon the offense for which he was on parole. If a defendant is serving asentence for a prior offense during the commission of a new offense, a truefinding on a prior prison term enhancement as a result of the prior offensemust be reversed. (People v. Weeks (2014) 224 Cal.App.4th 1045, 1051[defendant had not completed the prior prison term used to enhancesentence because he was still incarcerated for the prior offense as the timehe committed the new offense].) As stated in In re Kelly (1983) 33 Cal.3d267, 270--271, 274, a prison term is only considered continuous where adefendant has violated his or her parole and is sent back to prison solelyfor the violation. Under such circumstances the defendant is still servingtime for the prior offense, and the defendant's sentence cannot be enhancedbased on the prior offense. But, if the defendant is sentenced concurrently

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for a new offense and for a parole violation, the prior conviction isconsidered separate and may be used to enhance the new sentence.

VI. ENHANCEMENTS AND PENALTY PROVISIONS

A. DISCRETION/1385 TO STRIKE THE ENHANCEMENT

1. People v. Carmony (2004) 33 Cal.4th 367, the California Supreme Courtheld that the lower court’s decision not to strike a strike is reviewed underthe deferential abuse of discretion standard. The High Court overruledPeople v. Benevides (1998) 64 Cal.App.3d 728, to the extent that it isinconsistent with this opinion. The High Court found that the refusal tostrike such an allegation, in this case where the defendant was convicted offailing to register as a sex offender, was not an abuse of discretion do tothe fact the he had been informed of his duty to register on severaloccasions, had a lengthy and violent criminal record, which included twoprior convictions for failing to register, had substance abuse problems forwhich he did not diligently seek treatment, had a spotty work history, andappeared unlikely to be law-abiding in the future.

2. People v. Wallace (2004) 33 Cal.4th 738, the California Supreme Courtheld that where the defendant pled no contest to a pending charge andadmitted a prior conviction, the court’s order that the prior convictionallegation be stricken pursuant to section 1385, primarily because themagistrate, after conducting the preliminary hearing, had held that therewas insufficient evidence to hold the defendant to answer on that charge, acharge which was later reinstated and to which the defendant entered anegotiated plea, was based on a factor extraneous to the Three Strikes lawand was an abuse of discretion within the meaning of section 1385.

3. People v. Burgos (2004) 117 Cal.App.4th 1209, the Second AppellateDistrict, Division 2, held that the lower court abused its discretion indenying the defendant’s motion to strike one of two prior felonyconvictions under section 1385 where: (1) both arose from the same act,(2) an express statutory preclusion barred imposition of sentences for both,and (3) the defendant’s other prior criminal history consisted of severalmisdemeanors and a felony conviction for sale of a substance in lieu of acontrolled substance. Appellant’s current offense was an assault androbbery in which defendant injured and took the shoes of another detaineein his holding cell, and as a second-strike offender defendant would stillface a term as long as 20 years. The prior offenses arose from one act,wherein appellant was convicted of attempted carjacking and attemptedrobbery, and section 654 was applied at the time of sentence. Here, theCourt of Appeal analyzes People v. Benson (1998) 18 Cal.4th 24 andPeople v. Sanchez (2001) 24 Cal.4th 983, 993, wherein the High Court

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indicated that there are certain circumstances, wherein the priorconvictions are so closely related, that it would be an abuse of discretionnot to strike a strike–that is the rationale that this Court of Appeal appliedin this case.

4. People v. Poslof (2004) 119 Cal.App.4th 215, the Fourth AppellateDistrict, Division 2, held that the sentence of 27 years to life in prison forfailure to register did not constitute cruel and unusual punishment in viewof defendant’s criminal history as a recidivist and child sex offender, nordid the lower court err in denying appellant’s Romero motion pursuant toPeople v. Williams (1998) 17 Cal.4th 148, 161.

5. In re Carlos E. (2005) 127 Cal.App.4th 1529, the Fifth Appellate Districtheld that Welfare and Institutions Code section 731, subd. (b), alters themethod for determining the maximum term of confinement in theCalifornia Youth Authority as of January 1, 2004. Thereafter, the juvenilecourt has the discretion to set the maximum term of confinement based onthe facts and circumstances placing the minor before the court, but theterm cannot exceed the maximum time prescribed by adult sentencing law.

6. In re Jacob J. (2005) 130 Cal.App.4th 429, the Third Appellate Districtheld that Welfare and Institutions Code section 731, subd. (b) grantsjuvenile court discretion to set the maximum term of physical confinementto California Youth Authority in a given case at less than the adultmaximum term of imprisonment. The failure of court to exercise itsdiscretion requires the matter be remanded for another determination ofthe issue.

7. People v. Flores (2005) 129 Cal.App.4th 1401, the Fourth AppellateDistrict, Division 3 held that under section 1385, the court has the powerto dismiss or strike an enhancement. The failure to impose or strike theenhancement is a legally unauthorized sentence subject to correction forthe first time on appeal. (People v. Bradley (1998) 64 Cal.App.4th 386,391.) Striking of an enhancement is tantamount to a dismissal, andimplies that it must be dismissed in the interest of justice. (See People v.Carrillo (2001) 87 Cal.App.4th 1416, 1421.)

8. In re Large (2007) 41 Cal.4th 538, the California Supreme Court held thatthe fact that the court denied petitioner’s original petition for writ ofhabeas corpus, pursuant to Romero, which asked for dismissal of one ormore of his prior strike convictions, but at a new hearing three years later,based on the same information available at the first hearing, struckpetitioner’s prior conviction for first degree burglary and resentenced himto lesser term, did not demonstrate that the court’s original ruling, whichwas reinstated by the court of appeal after it reversed the later order, was

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reached in an improper manner. The supreme court held that petitionerfailed to over come the strong presumption under People v. Carmony(2004) 33 Cal.4th 367, 378, that the trial judge properly exercised hisdiscretion in refusing to strike a prior conviction allegation.

9. People v. Garcia (2008) 167 Cal.App.4th 1550, the Second AppellateDistrict, Division 5 held that, where the court imposed indeterminatesentences, based on multiple offenses, some being serious felonies, andpriors that made him eligible for a three strike sentence, and the fact thatthe jury also found that he had served five prior prison terms, andpersonally used a firearm in commission of all offenses, except a firearmpossession by felon, the court was required to exercise its discretion andeither impose one-year prior prison term enhancements pursuant to section667.5, subdivision (b), on every appropriate count, depending on whethereach offense was a “serious felony,” (see People v. Williams (2004) 34Cal.4th 401-405; People v. Misa (2006) 140 Cal.App.4th 837, 845-846),or strike the enhancements pursuant to section 1385, subdivision (a). (SeePeople v. Bradley (1998) 64 Cal.App.4th 386, 395-396; see also People v.McCray (2006) 144 Cal.App.4th 258, 267.)

10. People v. Finney (2012) 204 Cal.App.4th 1034, the Second AppellateDistrict, Division 6 held that the trial court did not err in distinguishingPeople v. Benson (1998) 18 Cal.4th 24, 35, fn 8, and People v. Burgos(2004) 117 Cal.App.4th 1209, and did not strike a strike from thedefendant's prior convictions and found him to be a "three striker" andsentenced him to a life term. The defendant's prior involved an attack onthe victim with a skateboard, fled in the erroneous belief victim was dead,and then returned 30 minutes later, where he saw the victim was alive andkicked him in the head three times, and as a result was convicted formayhem and assault constituted two separate strikes. Additionally, thetrial court did not abuse its discretion (see People v. Superior Court(Alvarez) (1997) 14 Cal.4th 968, 977-978), in denying his Romero motionto strike a strike, where defendant had a history of violent crime and failedattempts at parole and probation, and therefore fell inside and not outsideof the Three Strikes Law. (People v. Carmony (2004) 33 Cal.4th 367,377-378; see also People v. Williams (1998) 17 Cal.4th 148, 161.)

11. People v. Vargas (2014) 59 Cal.4th 635, the California Supreme Courtheld that prior convictions for robbery and carjacking, wherein both aroseout of a single act against a single victim cannot constitute separate strikesunder the Three Strikes Law and is inconsistent with the spirit of the thatlaw. The trial court should have dismissed one of them and sentenced thedefendant as if he had only one and not two qualifying convictions.

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12. People v. Rusconi (2015) 236 Cal.App.4th 273, the Fourth AppellateDistrict, Division 1 held that, where the defendant was convicted in 1986of two counts of vehicular manslaughter, the two convictions arose out ofan incident in which the defendant was driving under the influence, andtwo people were killed, and then in 2005, she was convicted of drivingunder the influence under Vehicle Code section 23152, subdivisions (a)and (b), and the court sentenced her to 25-L, the court properly denied apetition under Penal Code section 1170.126, since her two prior felonyconvictions were for manslaughter. Now the defendant argues that Peoplev. Vargas (2014) 59 Cal.4th 635 should strike one of the manslaughterconvictions. A defendant’s multiple felony convictions for injuring"multiple victims" by a single violent act are separate offenses, and strikes;as a result the court's refusal to modify the defendant's life sentence wasnot error.

13. In re Alejandro B. (2015) 236 Cal.App.4th 705, the Fifth AppellateDistrict held that People v. Vargas (2014) 59 Cal.4th 635, wherein thecourt concluded that two prior convictions arising out of a single actagainst a single victim cannot constitute two strikes under the ThreeStrikes Law, has no application to a case involving two current offensesarising out of a single act against a single victim. Here the ca reverses thetrial court's ruling that Vargas did apply to current offenses, saying theruling is premature. Huh?

B. TO STAY OR TO STRIKE AN ENHANCEMENT

1. People v. Crites (2006) 135 Cal.App.4th 1251, the Second AppellateDistrict, Division 6 held that where two special allegations within themeaning of section 12022, subd. (b) (knife and steel-toed shoe) thatdefendant used a deadly or dangerous weapon during commission of aviolent felony were found true, the trial court properly imposed the firstenhancement and stayed the second. (See People v. Jones (2000) 82Cal.App.4th 485, 492-493.) The second enhancement was authorized bylaw, therefore the court was not required to strike it, and could validly stayit.

2. People v. Jones (2007) 157 Cal.App.4th 1373, the Second AppellateDistrict, Division 7 held that the court’s discretion to strike a sentenceenhancement, pursuant to section 1385, includes discretion to striking adeadly weapon enhancement under section 12022, subd. (b)(1). Therationale is similar to that used by the Supreme Court in People v. Meloney(2003) 30 Cal.4th 1145, 1156.) As a result of the court “uniformeddiscretion,” it must be remanded for resentencing. (People v. Belmontes(1983) 34 Cal.3d 335, 348, fn.8; People v. Meloney, supra, 30 Cal.4th atp. 1165.)

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3. People v. Garcia (2008) 167 Cal.App.4th 1550, the Second AppellateDistrict, Division 5 held that, where the court imposed indeterminatesentences, based on multiple offenses, some being serious felonies, andpriors that made him eligible for a three strike sentence, and the fact thatthe jury also found that he had served five prior prison terms, andpersonally used a firearm in commission of all offenses, except a firearmpossession by felon, the court was required to exercise its discretion andeither impose one-year prior prison term enhancements pursuant to section667.5, subdivision (b), on every appropriate count, depending on whethereach offense was a “serious felony,” (see People v. Williams (2004) 34Cal.4th 401-405; People v. Misa (2006) 140 Cal.App.4th 837, 845-846),or strike the enhancements pursuant to section 1385, subdivision (a). (SeePeople v. Bradley (1998) 64 Cal.App.4th 386, 395-396; see also People v.McCray (2006) 144 Cal.App.4th 258, 267.)

4. People v. Bonnetta (2009) 46 Cal.4th 143, the California Supreme Courtheld that it is mandatory that the trial court’s reasons for dismissing anenhancement in furtherance of justice under section 1385 must beexplained “in an order entered upon the minutes,” and the clerks failure todo so nullifies the dismissal, even if the reasons appear elsewhere in therecord. The prosecutor does not waive the section 1385 error, under Scott,by failing to inspect the minutes after the sentencing error. Where the trialcourt erroneously failed to explain its reasons for dismissal in the minuteorder, the proper remedy was to remand the matter with directions to thetrial court either correct the error by again ordering dismissal of theenhancement, setting forth its reasons in a new minute order, or it candecide to reconsider its decision and take appropriate action including, ifnecessary, proceeding as if the order had not been entered in the firstinstance. (BUT SEE CHANGE OF SECTION 1385, AND JONES,INFRA.)

5. People v. Jones (2016) Cal.App.4th , reported on March 31, 2016, in2016 Los Angeles Daily Journal 3113, the Third Appellate District heldthat as of 2015, section 1385 does not require the trial court to providewritten reasons in the minutes for dismissing a strike under the ThreeStrikes Law. The court only has to make an oral pronouncement why thestrike is being struck, unless either party requests that the reason be in theminutes. If the judgment is not yet final on appeal, the appellate court hasthe duty to apply the law as it exists when the appellate court renders itsdecision. (People v. Thompson (1992) 4 Cal.App.4th 481, 489.)

C. GANG ENHANCEMENTS SECTION 186.22 AND RELATED ISSUES

1. People v. Hernandez (2004) 33 Cal.4th 1040, the California SupremeCourt established that the defendant who was charged with a robbery for

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the benefit of a criminal street gang, within the meaning of section 186.22,subd. (b)(1), under the facts of this case, which do not necessarily establishthe mental state in which the underlying offense was committed, was noterror, not to bifurcate the enhancement. (See generally People v. Calderon(1994) 9 Cal.4th 69, 72-78 [re bifurcation of prior convictionenhancements, which had previously overruled People v. Bracamonte(1981) 119 Cal.App.3d 644].) The denial of the motion to bifurcate thestreet-gang enhancement was not an abuse of discretion where evidence ofgang affiliation was also relevant to prove motive and intent behind thecharged offenses, and the evidence which was admissible to prove thegang affiliation, but would have been inadmissible at trial solely on thecharged offenses was not particularly inflammatory. The High Courtfound that if there was a request for a limiting instruction on the proper useof the gang enhancement it should be given, but given the fact that nonewas requested in this case, it was not error, and the danger that the jurywould use such evidence improperly was not so great as to impose uponcourt a duty to give the instruction sua sponte.

2. People v. Ramos (2004) 121 Cal.App.4th 1194, the Second AppellateDistrict, Division 3, held that the court erroneously imposed a 15-yearenhancement under section 186.22, subd. (b)(5), rather than requiringservice of a 15-year minimum eligible parole date, and also erroneouslyimposed a consecutive subordinate term under section 1170.1, subd. (a),which does not apply to indeterminate sentences. (See People v. Felix(2000) 22 Cal.4th 651, 659; People v. Mason (2002) 96 Cal.App.4th 1,15.)

3. People v. Briceno (2004) 34 Cal.4th 451, the California Supreme Courtheld that when an “enhancement” within the meaning of section 186.22,subd. (b)(1) is found true, section 1192.7, subd. (c)(28) does transform theunderlying offense of either section 12021, or 12025 into serious felonies. As a result, they do qualify as strikes or prior serious felony enhancements,in the future, and they would be serious felonies within section 667, subd.(a)(1). Therefore, any felony offense that was also committed for thebenefit of a criminal street gang within the meaning of section 186.22,subd. (b)(1) is a serious felony pursuant to section 1192.7, subd. (c)(28)for future or later enhancing purposes.

4. People v. Martinez (2004) 116 Cal.App.4th 753, the First AppellateDistrict, Division 1 held that the court erred by ordering appellant toregister as a gang member under section 186.30 which requires proof thatthe crime was committed in association with, or for the benefit of acriminal street gang, and such cannot be inferred solely from thedefendant’s past associations and activities, nor can it be inferred from thefact that the defendant acted with a companion absent evidence that the

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companion was a gang member. Given the fact that registration is anonerous burden that may result in a separate misdemeanor offense fornoncompliance, a registration requirement may not be imposed uponpersons not specifically described in the statute. (See People v. Franklin(1999) 20 Cal.4th 249, 253; In re Bernardino S. (1992) 4 Cal.App.4th 613,623.) For the crime to be gang related the record must provide someevidentiary support, other than merely the defendant’s record of prioroffenses and past gang activities or personal affiliations, for a finding thatthe crime was committed for the benefit of, at the direction of, or inassociation with a criminal street gang.

5. People v. Vy (2004) 122 Cal.App.4th 1209, the Sixth Appellate Districtheld that three violent assaults by the defendant’s gang, including thecrime for which he was sentenced, over less than a three-month period,constituted sufficient evidence that the commission of such predicatecrimes was one of the “primary activities” of the defendant’s gang,supporting imposition of the enhancement under section 186.22, subd. (f). The court did not commit instructional error by including attemptedmurder as a predicate crime that the jury could consider for “primaryactivities” prong of gang enhancement.

6. People v. Lopez (2005) 34 Cal.4th 1002, the California Supreme Courtheld that a defendant convicted of first degree murder, which is punishableby imprisonment for life and therefore is not subject to a 10-yearenhancement, applicable to other violent felonies when the crime iscommitted for the benefit of a criminal street gang, under section 186.22,subd. (b)(1)(C), but, he is subject to the 15-year minimum eligible paroledate under section 186.22, subd. (b)(5), even though it does not add to theminimum eligible parole date of 25 years. It is a factor that can beconsidered for parole eligibility.

7. People v. Bautista (2005) 125 Cal.App.4th 646, the Fifth AppellateDistrict held that a defendant is entitled to have a jury determine underfederal law (People v. Taylor (2004) 118 Cal.App.4th 11, 23-24, based onApprendi) whether his current offense is a conduct-based serious felonyunder section 1192.7. Here, there are two ways in which could have beenfound, either the defendant personally used a firearm under section 1192.7,subd. (c)(8), or that the felony offense constituted a felony violation ofsection 186.22. The jury was not given the question of personal use;therefore, the finding could not be made on that basis. However, the jurydid find that the offense constituted an offense for the benefit of a streetgang. Appellant argued that People v. Briceno (2004) 34 Cal.4th 451,applies only where the question is whether a prior conviction was for aserious felony and not where the question pertains to the current offense. However, the Court of Appeal applied the argument advanced by the

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prosecution and found that since the defendant did commit an offenseunder the circumstances specified in section 186.22, subd. (b)(1), it istantamount to a finding that the offense was a serious felony. Therefore,the court could impose one five-year serious felony enhancement. But, itcould not impose a second 5-year enhancement under section 186.22,subd. (b)(1)(B), as that would be bootstrapping, which is prohibited byBriceno, supra.

8. People v Flores (2005) 129 Cal.App.4th 174, the Fourth AppellateDistrict, Division 3 held that the section 186.22, subd. (a) is a necessarilylesser included offense of carrying a firearm while an active participant ina criminal street gang (§ 12031, subd. (a)(2)(C)), and since one cannot beconvicted of the lesser included offense, (see People v. Ortega (1998) 19Cal.4th 686, 692), the conviction of section 186.22, subd. (a) must bestricken. Separate punishments for murder and for conspiracy to batter aseparate victim, wherein the murder occurred during the course of theconspiracy, do not violate section 654's ban on multiple punishments forthe same crime, since the murder was not part of the conspiracy. (See Inre Cruz (1966) 64 Cal.2d 178, 181 [if the conspiracy had an objectiveapart from an offense for which the defendant is punished, he may beproperly sentenced for the conspiracy as well].) The enhancement undersection 12031, subd. 3 and a separate sentence for carrying a gun in thecarrying a firearm while an active participant in a criminal street gang didnot violate section 654 where the evidence established that the crime forwhich the enhancement was imposed and the gun possession offenseinvolved separate conduct and separate intents. The court acknowledgedthat there is a split of authority as to whether section 654 applies toenhancements (see People v. Rodriguez (1988) 206 Cal.App.3d 517, 519[does not apply]; People v. Moringlane (1982) 127 Cal.App.3d 811,817-818; People v. Arndt (1999) 76 Cal.App.4th 387 [§ 654 does apply toenhancements that go to the nature of the offense and not to the status ofthe offender]; see also People v. Akins (1997) 56 Cal.App.4th 331; Peoplev. Palacios (2005) 126 Cal.App.4th 859, [§ 654 does apply toenhancements), but, determined that on these facts, that it did not.

9. People v. Martinez (2005) 132 Cal.App.4th 531, the Fifth AppellateDistrict held that section 654 bans multiple punishments for same crimebars the trial court from imposing a serious felony enhancement and gangenhancement based on the same act or conduct used to support the seriousfelony enhancement if the underlying crime is a serious felony onlybecause it was committed for the benefit of a criminal street gang (seePeople v. Briceno (2004) 34 Cal.4th 451; People v. Bautista (2005) 125Cal.App.4th 646), but, it does not bar separate punishments if theunderlying offense would have been a serious felony even if it had notbeen committed for the benefit of the gang. The Court of Appeal finds

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that under People v. Coronado (1995) 12 Cal.4th 145, 157 [section 654does not apply to prior conviction enhancements], both can be imposed. However, they acknowledge, but, do not discuss the fact that the newSupreme Court ruling in People v. Oates (2004) 32 Cal.4th 1048, 1066, fn.7, appears to contract this holding.

10. People v. Maldonado (2005) 134 Cal.App.4th 627, the Second AppellateDistrict, Division 4 held that an assault with a firearm is a predicateoffense for purposes of the gang enhancement within the meaning ofsection 186.22, subd. (e)1), which imposes additional punishment when acrime is committed for the benefit of a criminal street gang and defines asa criminal street gang an organization whose members have committedtwo predicate offenses. Even though section 245, subd. (a)(2) is not listedin the crimes that are classified as predicate offenses, it is a more specificform of assault that was contemplated by the legislature.

11. Garcia v. Carey (9th Cir. 2005) 395 F.3d 1099, the Ninth Circuit Court ofAppeal established that the prosecution’s gang expert testified that thedefendant’s gang was “turf-oriented,” however, he did not testify to adefinition of “turf-oriented,” what implications arose from a gang being“turf-oriented,” or how the gang’s “turf-oriented” nature could support theconclusion that robbery of which defendant was convicted, was committedwith the specific intent to promote, further, or assist other gang-relatedcriminal activity. Therefore, the Ninth Circuit held that it wasunreasonable for the state appellate court to conclude that a rational jurycould find that the defendant committed the robbery with the specificintent to facilitate other gang crimes. (See People v. Augborne (2002) 104Cal.App.4th 362, 372 [re: specific intent to further a gang purpose].)

12. People v. Romero (2006) 140 Cal.App.4th 15, the Second AppellateDistrict, Division 4, held that the specific intent element of section 186.22,subd. (b)(1), does not require an intent to further the criminal conductbeyond the presently charged crime. Where the defendant was chargedwith murder and attempted murder, and the evidence showed he intendedto shoot people, intended to help another shoot people, and the otherperson was a fellow gang member, the specific intent requirement wassatisfied. The Court of Appeal refused to follow Garcia v. Carey (9th Cir.2005) 395 F.3d 1099 which found that a showing of intent to promote thegang’s criminal activity beyond the charged crime, was needed.

13. People v. Schoppe-Rico (2006) 140 Cal.App.4th 1370, the First AppellateDistrict, Division 4 held that pursuant to section 12025, subd. (b)(3), andsection 12031, subd. (a)(2)(C) [street gang firearm possession statutes],which make firearm possession a felony where perpetrator is activeparticipant in street gang, within the meaning of section 186.22, do not

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require proof that the charged firearm possession was connected withunderlying gang participation.

14. People v. Hill (2006) 142 Cal.App.4th 770, the Third Appellate District,similar to the Second Appellate District in People v. Romero (2006) 140Cal.App.4th 15, held that section 186.22, subd. (b) does not require thatthe defendant’s intent to enable, or, promote criminal endeavors by othergang members must relate to criminal activity apart from the offense thedefendant commits. This court as did the Romero court, refused to followGarcia v. Carey (9th Cir. 2005) 395 F.3d 1099 which found that ashowing of intent to promote the gang’s criminal activity beyond thecharged crime, is needed.

15. People v. Lamas (2007) 42 Cal.4th 516, the California Supreme Courtheld that in order to establish that the defendant actively participated in acriminal street gang within the meaning of the substantive section 186.22,subd. (a), for purpose of elevating the offense of carrying a loaded firearmin public under section 12031 from a misdemeanor to a felony, theprosecution must prove that, (1) the defendant is more than a nominalmember of a criminal street gang; (2) that he had knowledge that gang’smembers engage in or have engaged in a pattern of criminal gang activity;and (3) that the defendant willfully promoted, furthered, or assisted infelonious criminal conduct by members of the gang distinct from thedefendant’s otherwise misdemeanor conduct of carrying a loaded weaponin public. The elements of section 186.22, subd. (a) have been delineatedin People v. Robles (2000) 23 Cal.4th 1106, 1115.)

16. Lopez v. Superior Court (2008) 160 Cal.App.4th 824, the Fourth AppellateDistrict, Division 3 held, on remand from the California Supreme Court,where the defendant was engaged in gang-related behavior in violation ofcriminal contempt order was charged with a misdemeanor, theprosecution’s use of same underlying facts to impose felony gangenhancement under section 186.22, subd. (d), was impermissiblebootstrapping and constituted double punishment. (People v. Arroyas(2002) 96 Cal.App.4th 1439.)

17. People v. Bragg (2008) 161 Cal.App.4th 1385, the Third AppellateDistrict held that the court’s erroneous instruction that battery with seriousbodily injury was a predicate offense for a finding that group to whichdefendant belonged was a criminal street gang was harmless beyond areasonable doubt where offense of which defendant was convicted in thepresent case was a predicate offense, and there was undisputed evidencethat a fellow gang member had been convicted of another predicateoffense. (People v. Sengpadychith (2001) 26 Cal.4th 316, 320-324.)

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18. People v. Margarejo (2008) 162 Cal.App.4th 102, the Second AppellateDistrict, Division 7 held that the prosecution’s expert witness (policeofficer) testified that the primary activities of the defendant’s gangengaged in were committing crimes, substantial evidence supported thejury’s finding that the gang met the criteria of a “criminal street gang,”within the meaning of section 186.22. Where the defendant repeatedlymade gang hand signs to pedestrians and police during a high speedpursuit, substantial evidence supported the jury’s application of the gangenhancement to the violation of section 2800.2 (evading). Where thedefendant illegally possessed a gun and then transferred the weapon to afellow gang member, substantial evidence supported the jury’s applicationof the gang enhancement for illegally possessing a weapon.

19. In re Damien V. (2008) 163 Cal.App.4th 16, the Fourth Appellate District,Division 3 held that section 186.22, subdivision (d)’s alternate penaltyprovision for an underlying offense that was committed for the benefit of,at the direction of, or in association with a criminal street gang addressescriminal convictions, is applicable to juveniles because the voters’ intentin passing Proposition 21, which enacted section 186.22, was to increasethe punishment for all gang-related crimes.

20. People v. Fiu (2008) 165 Cal.App.4th 360, the First Appellate District,Division 4, held that where the defendant was convicted of second degreemurder, the trial court properly sentenced him to a term of 15 years to life,doubled to 30 years to life due to his prior “strike,” but erred in adding a10-year gang participation enhancement. Where a life term is imposed fora gang-related offense, there is a mandatory minimum of 15 years thatmust be served without possibility of parole, but the 10-year enhancementis not applicable as it only applies when it is added to a determinate term. (See § 186.22, subd. (b)(5); People v. Lopez (2005) 34 Cal.4th 1002,1007.)

21. People v. Ulloa (2009) 175 Cal.App.4th 405, the Second AppellateDistrict, Division 4 held that, section 1192.7, subdivision (c)(28), defininga “serious felony,” does not include a misdemeanor punishable as a felonypursuant to the alternate penalty provision of section 186.22, subdivision(d). (See People v. Briceno (2004) 34 Cal.4th 451; see also People v.Arroyas (2002) 96 Cal.App.4th 1439 [does not permit impermissiblebootstrapping].) Therefore, the prior to which this relates, cannot beimposed as a felony, since the underlying offense was a misdemeanor, andeven if sentenced as a felony within the provisions of section 186.22subdivision (d), it does not transform the prior into a felony for sentencingpurposes in the current case. The supreme court declined to decide thisissue in Robert L. v. Superior Court (2003) 30 Cal.4th 894, 907, fn. 17.

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22. People v. Rodriguez (2009) 47 Cal.4th 501, the California Supreme Courtheld that where the defendant was convicted of three counts of assault witha firearm, under section 245, the trial court erred in imposing two differentsentence enhancements for the defendant’s firearm use, based on (1) hispersonal use of a firearm (§ 12022.5, subd. (a)) and (2) his commission ofa violent felony, as defined by personal use of a firearm to benefit acriminal street gang (§ 186.22, subd. (b)(1)(C)). Section 1170.1,subdivision (f), provides that “[w]hen two or more enhancements may beimposed for being armed with or using a dangerous or deadly weapon or afirearm in the commission of a single offense, only the greatest of thoseenhancements” can be imposed. Subdivision (f) precludes the impositionof added prison terms under both of the enhancement provisions at issue inthis case, sections 12022.5, subdivision (a), and 186.22, subdivision(b)(1)(C). The court specifically declined to decide whether section 654applies to sentence enhancements that are based on the nature of theoffense.

23. People v. Jones (2009) 47 Cal.4th 566, the California Supreme Court heldthat where the defendant committed a felony specified in section 186.22,subdivision (b)(4) [§ 246], for which he was subject to life imprisonment,because of subdivision (a)(17), of section 12022.53, it triggered theapplication of the 20-year enhancement under section 12022.53,subdivision (c). The defendant was subject to that 20-year enhancementnot because he committed a gang-related offense, but because hecommitted a particularly heinous crime (§ 246) punishable by lifeimprisonment based on the application of section 186.22, subdivision(b)(4).

24. People v. Brookfield (2009) 47 Cal.4th 583, the California Supreme Courtheld that the defendant who was convicted of a gang-related crime undersection 186.22, in the commission of which he did not personally use ordischarge a firearm, but his companion did, was subject to lifeimprisonment pursuant to section 186.22, subdivision (b)(4)(B), but thetrial court erred by also sentencing him to an additional 10-yearenhancement for personal use of a firearm under section 12022.53,subdivisions (b), (e)(1).

25. People v. Gonzalez (2010) 180 Cal.App.4th 1420, the Second AppellateDistrict, Division 8 held that the imposition of the 25 to life enhancementpursuant to sections 12022.53, subdivisions (d) and (e)(1), based onfinding that a principal fired a gun causing great bodily injury in a crimecommitted for the benefit of a street gang, is imposed, but it precludes theimposition of 15-year minimum eligible parole date for the gang-relatedcrimes under section 186.22, subdivision (b)(5). (See People v. Brookfield(2009) 47 Cal.4th 583.) A defendant who personally uses or discharges a

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firearm in the commission of a gang-related offense is subject to both theincreased punishment provided in section 186.22 and the increasedpunishment in section 12022.53. Therefore, this defendant, the aider andabetter, is sentenced under the provision of section 3046 for each of thedefendant's life sentences, not the 15 year minimum eligibility paroleperiod under section 186.22, but the 25 to life sentence under section12022.53, subdivision (e)(1), is also imposed.

26. People v. Sok (2010) 181 Cal.App.4th 88, the Second Appellate District,Division 7 held that where the defendant received a determinate sentence,plus a 25-year-to-life enhancement pursuant to section 12022.53,subdivision (d) for the use of the gun, and the crime was committed for thebenefit of a criminal street gang (§ 186.22), the crime was not “punishableby imprisonment in the state prison for life” as the phrase is used insection 186.22, and as a result, the trial court correctly imposed the10-year enhancement under section 186.22, subdivision (b)(1)(C), ratherthan a 15-year minimum parole eligibility period under section 186.22,subdivision (b)(5). (See People v. Montes (2003) 31 Cal.4th 350,352-353, 362.) Where the defendant was convicted of shooting at anoccupied vehicle (§ 246), with special findings that the crime wascommitted for the benefit of a criminal street gang, that the defendantdischarged a firearm causing great bodily injury, and that the defendanthad a prior strike, the trial court erred in imposing the 10-year gangenhancement under section 186.22, subdivision (b)(1)(C), and shouldinstead have imposed alternate minimum sentence of 15 to life undersection 186.22, subdivision (b)(4).

27. People v. Duarte (DEPUBLISHED); FORMERLY AT: (2010) 190Cal.App.4th 82, the Fourth Appellate District, Division 3 held that the trialcourt erred in failing to stay the criminal street gang conviction within themeaning of section 186.22, subdivision (a), when the defendant was alsoconvicted of discharging a firearm with gross negligence (sec. 346.3),among other things, arising from the same single act of shooting a firearm. (See People v. Sanchez (2009) 179 Cal.App.4th 1297.) Sanchez disagreedwith the contrary holding in People v. Herrera (1999) 70 Cal.App.4th1456 as this court also did. The jury necessarily relied on one of theunderlying firearm offenses to establish the requisite felonious conduct onthe street terrorism charge, and as a result section 654's bar on separatepunishment was violated.

28. People v. Campos (2011) 196 Cal.App.4th 438, the Fourth AppellateDistrict, Division 1, held that where the defendant was convicted ofattempted, willful, deliberate, premeditated murder, which under section3046, generally carries a minimum eligible parole date of 7 to life, whenthe jury also finds true a gang enhancement within the meaning of 186.22,

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the alternate penalty scheme provides for a 15 to life term (see People v.Lopez (2005) 34 Cal.4th 1002, 1004), since section 3046, subdivision(a)(2) provides for a longer term if another section, here section 186.22,subdivision (b)(5) so indicates. Additionally, the Court of Appeal foundthat section 186.22, subdivision (g), does not permit the court to strike the“alternative penalty” provided in 186.22, subdivision (b)(5), as thatprovision only permits the striking of an enhancement, which section186.22, subdivision (b)(5) is not. Furthermore, the court found thatsection 1385, and People v. Bonnetta (2009) 46 Cal.4th 143, nor People v.Superior Court (Romero) (1996) 13 Cal.4th 497, do not permit the strikingof the gang allegation so that the alternative penalty would not be imposed,and find that the imposition of that provision is mandatory. (See People v.Johnson (2003) 109 Cal.App.4th 1230, 1239.)

29. People v. Hunt (2011) 196 Cal.App.4th 811, the Fourth Appellate District,Division 2 held that the trial court erred in failing to stay the term fordefendant’s active participation in a criminal street gang, for thesubstantive crime under section 186.22, subdivision (a), because it wasbased on the same intent he had when he participated in the robberies,which was to benefit the gang. (People v. Sanchez (2009) 179Cal.App.4th 1297, 1301.) The court distinguished People v. Brookfield(2009) 47 Cal.4th 583 [cannot impose, for a non-shooter, pursuant to the §12022.53, subd. (e)(2) gun enhancement and the 186.22 enhancement].) The court held that since the substantive offense of section 186.22,subdivision (a) was not mentioned in the discussion of 12022.53,subdivision (e)(2), it could be imposed, but in this case it had to be stayedpursuant to People v. Sanchez, supra.

30. People v. Jorge P. (2011) 197 Cal.App.4th 628, the Fifth AppellateDistrict held that where appellant was charged with violations of section12031, subdivision (a)(1), section 12101, subdivision (a)(1), and 186.22,subdivision (a), the Court of Appeal concluded that a true finding as to thesection 12101, subdivision (a)(1) felony offense, cannot support the gangallegation under section 12031, subdivision (a)(2)(C), because theunderlying conduct is the same conduct underlying the section 12031,subdivision (a)(1) offense, which cannot be used under section 12031,subdivision (a)(2)(C) to elevate the section 12031, subdivision (a)(1) to afelony under People v. Lamas (2007) 42 Cal.4th 516. The prosecutionmust prove separate and distinct felonious conduct, that is, actions oromissions evidencing the offender's behavior, different from themisdemeanor conduct supporting a section 12031, subdivision (a)(1)allegation, notwithstanding the possibility that the offender's same conductcan support separate and distinct misdemeanor and felony offenses.

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31. People v. Gonzales (2011) 199 Cal.App.4th 219, the Fourth AppellateDistrict, Division 3 held that an active gang member may be held liable fora gang enhancement within the meaning of section 186.22, subdivision(b)(1), even if he acted alone, and without assistance from any other gangmember. (See People v. Ngoun (2001) 88 Cal.App.4th 432; People v.Salcido (2007) 149 Cal.4th 356; People v. Sanchez (2009) 179Cal.App.4th 1297, 1301.) This court does not believe that People v.Albillar (2010) 51 Cal.4th 47, compels a different conclusion.

32. People v. Valenzuela (2011) 199 Cal.App.4th 1214, the Second AppellateDistrict, Division 1 held that the trial court erred in imposing a street-gangenhancement under section 186.22, subdivision (b)(5) (15-L MEPD),where a section 12022.53, subdivisions (d) and (e)(1) was also imposedand there was no finding that the defendant personally fired a gun. (People v. Brookfield (2009) 47 Cal.4th 583, 590.)

33. People v. Nunez (2011) 200 Cal.App.4th 578, the Third Appellate Districtheld, over a strong dissent, that section 654 does not bar separatepunishment for the crime of criminal street gang activity within themeaning of section 186.22, subdivision (a), and the underlying felonies,here assault (§ 245) and vandalism (§ 594), used to prove the "feloniousconduct" element of that offense. The dissent points out that the assaultand vandalism charges are, in and of themselves, the entirety of the thirdelement of the gang charge, and therefore, section 654 has to apply.

34. People v. Rodriguez (2012) 55 Cal.4th 1125, the California SupremeCourt held that a defendant's knowing and active participation in gangactivities is insufficient for a conviction under section 186.22, subdivision(a), the substantive criminal street gang offense. Here, the defendantcommitted an attempted robbery by himself. Said section requires morethan one participant in the felonious criminal conduct to support the gangcrime instead of the gang enhancement. (See People v. Castenada (2000)23 Cal.4th 743.) This court did not follow People v. Salcido (2007) 149Cal.App.4th 356, and People v. Ngoun (2001) 88 Cal.App.4th 432, andPeople v. Sanchez (2009) 179 Cal.App.4th 1297, which have strayed fromthe dictates of Castenada.

A gang member who commits a felony while acting alone does not violatePenal Code section 186.22, subdivision (a); that statute requires at leasttwo perpetrators whose felonious conduct benefits the gang. Defendant, aNorteno gang member, attempted a robbery. Among other offenses, hewas convicted of violating section 186.22, subdivision (a). The Court ofAppeal reversed and the prosecution's petition for review was granted.Held: Affirmed (plurality opinion). Section 186.22, subdivision (a)"speaks of criminal conduct by members of that gang." Thus, a defendant

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must willfully advance or contribute to the commission of feloniousconduct by members of his gang. The plain meaning of the statute requiresthat the crime be committed by at least two gang members, one of whommay be the defendant if he is a gang member. This interpretation avoids"any potential due process concerns that might be raised by punishingmere gang membership" by requiring that a defendant commit theunderlying felony with at least one other gang member. (Citing Scales v.United States (1961) 367 U.S. 203.) Section 186.22, subdivision (a)reflects the Legislature's intent to punish participants who commitfelonious conduct together with gang members. In his concurring opinion,Justice Baxter joined in the opinion based on the plain meaning of thestatute, finding no reason to consider the constitutional implications of acontrary interpretation.

35. People v. Le (2012) 205 Cal.App.4th 739, the Fourth Appellate District,Division 1 held that the trial court did not err when it imposed only thegun use enhancement, which yielded a 10 year term, when a gangenhancement was also found true, and the defendant was found to havepersonally used the weapon, as the gang enhancement involveddefendant’s use of a firearm, trial court lacked the discretion to imposeboth the personal gun use enhancement under section 12022.5, subdivision(a) and the gang enhancement under either section 186.22, subdivision(b)(1)(B) or subdivision (b)(1)(C). (See People v. Rodriquez (2009) 47Cal.4th 501, 504-505.)

36. People v. Martinez (2012) 208 Cal.App.4th 197, the Second AppellateDistrict, Div. 5 held that where the defendant was convicted of sections245, 186.22, subdivision (b)(1)(B) & (C), and section 12022.5, subdivision(a), pursuant to section 1170.1, subdivision (f), as only the greater of thesection 186.22 or the 12022.5 enhancements can be imposed. (People v.Rodriguez (2009) 47 Cal.4th 501, 508-509; People v. Jones (2009) 47Cal.4th 566, 572, fn.3.)

37. People v. Robinson (2012) 208 Cal.App.4th 232, the First AppellateDistrict, Division 5 held that Section 12022.53, subdivision (e)(2), whichprovides that an enhancement for participation in a criminal street gangshall not be imposed on a person in addition to an enhancement imposedpursuant to this subdivision, unless the person personally used orpersonally discharged a firearm in the commission of the offense (seePeople v. Brookfield (2009) 47 Cal.4th 583, 588-590), conflicts withsection 1170.1, subdivision (f), which directs that only one firearmenhancement be imposed. Section 12022.53, subdivision (e)(2), as themore specific statute, controls and allowed trial court to imposeenhancements under both section 186.22, subdivision (b)(1)(C) andsection 12022.53, subdivision (b).

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38. People v. Vega (2013) 214 Cal.App.4th 1387, the Second AppellateDistrict, Division 5 held that where the defendant was found guilty ofattempted voluntary manslaughter, and enhancements for the use of afirearm, (§ 12022.5, subd. (a)), a great bodily injury allegation within themeaning of section 12022.7, subdivision (a) and a gang enhancementwithin the meaning of section 186.22, subdivision (b)(1)(C), were foundtrue, in this case, the GBI allegation made the crime a violent felony forwhich separate firearm and gang enhancements were properly imposed.The court distinguished People v. Rodriguez (2009) 47 Cal.4th 501, 508-509, where the 10-year gang enhancement was not imposed due to the factthat the gun use was the only enhancement that transformed the crime intoa serious felony; here the GBI provided that avenue, thereby permitting theimposition of the gun use and the gang enhancement. The stay of thegreat bodily injury enhancement which attached to the attempted voluntarymanslaughter, (violent felony), was unlawful where the court did not haveindependent authority to stay any portion of a sentence without legaljustification. (People v. Woods (2010) 191 Cal.App.4th 269, 271-274;People v. Baylor (1989) 207 Cal.App.3d 232, 236.) However, on remand,the trial court has the authority to strike the enhancement pursuant tosection 1385, subdivision (a), if the reasons are set forth in the minutes.

39. People v. Sanchez (2014) 223 Cal.App.4th 1, the Fourth AppellateDistrict, Division 3 held that, pursuant to People v. Rodriguez (2012) 55Cal.4th 1125, the defendant cannot be convicted of the offense of activelyparticipating in a street gang (§ 186.22, subd. (a)), as such a convictionrequires more than a lone actor. However, there is nothing in section186.22, subdivision (b)(1), the gang enhancement, that precludes thefinding of that enhancement true, when the defendant acts alone for thebenefit of a street gang.

40. People v. Infante (2014) 58 Cal.4th 688, the California Supreme Courtheld that section 12025 (now § 25400, subd. (c)(3)) and section 12031(now § 25850, subd. (c)(3)) which are generally misdemeanor offenses,but they are elevated to felonies when the defendant is also guilty of activeparticipation in a street gang in violation of section 186.22, subdivision(a). The defendant's illegal possession of a firearm (ex-felon in possession§ 29800, subd. (a)(1)) is itself felonious conduct that is an element of thesection 186.22, subdivision (a) offense. Therefore, possession of a firearmby a felon, which is a felony, constitutes "felonious criminal conduct"within the meaning of section 186.22, subdivision (a), so as to elevate tofelonies the misdemeanor offenses of carrying a concealed firearm andcarrying a loaded firearm in public when the crimes are gang-related. Thedecision in In re Jorge P. (2011) 197 Cal.App.4th 628, to the extentinconsistent with this opinion, is disapproved.

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41. People v. Fuentes (2014) 225 Cal.App.4th 1283, the Fourth AppellateDistrict, Division 3 held that where the Legislature enacted section 186.22,subdivision (g), which gives the trial court the power, "[n]otwithstandingany other law," to strike the additional punishment for a street-gangenhancement alleged under section 186.22, subdivision (b), did noteliminate the trial court’s power under section 1385, subdivision (a) todismiss or strike an enhancement alleged under section 186.22,subdivision (b). This court parted ways with Division 1 of this AppellateDistrict and their opinion in People v. Campos (2011) 196 Cal.App.4th438, where the defendant was convicted of attempted, willful, deliberate,premeditated murder, which under section 3046, generally carries aminimum eligible parole date of 7 to life, when the jury also finds true agang enhancement within the meaning of 186.22, the alternate penaltyscheme provides for a 15 to life term (see People v. Lopez (2005) 34Cal.4th 1002, 1004), since section 3046, subdivision (a)(2) provides for alonger term if another section, here section 186.22, subdivision (b)(5) soindicates. The Campos court found that section 186.22, subdivision (g),does not permit the court to strike the "alternative penalty" provided in186.22, subdivision (b)(5), as that provision only permits the striking of anenhancement, which section 186.22, subdivision (b)(5) is not. TheFuentes court is not bound by Campos as there is no horizontal staredecisis in the California Court of Appeal. (Sarti v. Salt Creek Ltd. (2008)167 Cal.App.4th 1187, 1193.) Finally , the trial court erred in failing tostate reasons for dismissing enhancement allegation in an order entered inthe minutes, as required by section 1385, subdivision (a). (People v.Bonnetta (2009) 46 Cal.4th 143, 149.

42. People v. Williams (2014) 227 Cal.App.4th 733, the Second AppellateDistrict, Division 4 held that where the trial court imposes a life sentencespursuant to the Three Strikes Law, those sentences, being an alternativepenalty scheme, (see People v. Jones (2009) 47 Cal.4th 566), are lifesentences within the meaning of section 186.22, subdivision (b)(5), andtherefore those sentences are subject to the 15-year minimum parole termof section 186.22, subdivision (b)(5), and not to the 10-year gangenhancement pursuant to section 186.22, subdivision (b)(1)(C).

43. People v. Johnson (2014) 229 Cal.App.4th 910, the Fifth AppellateDistrict held that a gang member cannot be convicted of a gangparticipation offense within the meaning of section 186.22, subdivision (a)(the gang crime, not the enhancement), when the criminal conduct was notcommitted by at least one other gang member. (See; see also People v.Rodriguez (2012) 55 Cal.4th 1125, 1135-1137; People v. Albillar (2010)51 Cal.4th 47, 54.) Evidence that the defendant participated in a gang andknew of its pattern of felonious gang activity, and that he feloniouslypossessed a firearm and ammunition while in the presence of other gang

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members, was insufficient because while the evidence may have suggestedthat other gang members encouraged the defendant to commit felonies, itdid not establish the converse.

44. People v. Le (2015) 61 Cal.4th 416, the California Supreme Court heldthat section 1170.1, subdivision (f), and consistent with People v.Rodriguez (2009) 47 Cal.4th 501 [cannot use the enhancement forpersonal use and to elevate the punishment for a criminal street gangallegation to a violent felony under section 186.22, subd. (b)(1)(C)), inaddition to precluding multiple firearms enhancements based onpossession or use of the same weapon during a single criminal episode,precludes a trial court from imposing both a firearm enhancement undersection 12022.5, former subdivision (a)(1), and a gang enhancement undersection 186.22, subdivision (b)(1)(B), in connection with a single offense,when the offense is a "serious felony" under section 186.22, subdivision(b)(1)(B) and involved the use of a single firearm.

45. People v. Prunty (2015) 62 Cal.4th 59, the California Supreme Courtdetermined that when a defendant is part of a gang "subset" such as"Norte" of the large gang of Norteno, and when the prosecution attemptsto prove a violation of section 186.22, subdivision (b), the street gangenhancement, by showing the defendant committed a felony to benefit agiven gang, but establishes the commission of the required predicateoffenses with evidence of crimes committed by members of the gang’salleged subsets, "other than the subset to which defendant belongs,” itmust prove a connection between the defendant's gang and the othersubsets.

46. People v. Leon (2016) 243 Cal.App.4th 1003, the Fifth Appellate Districtheld that the trial court has the discretion under section 669 to imposeconcurrent sentences for gang related offenses punishable under thealternate penalty scheme of section 186.22, subdivision (b)(4). The trialcourt was under the mistaken belief that it was mandated to imposeconsecutive sentences. (See People v. Felix (2000) 22 Cal.4th 651.)

47. People v. Ewing (2016) 244 Cal.App.4th 359, the Fifth Appellate Districtheld that there was sufficient evidence to uphold the defendant’sconviction for participation in a criminal street gang, section 186.22,subdivision (b)(4), for shooting into an occupied vehicle, section 246,despite the lack of evidence that he was a member of the gang, such asNorteno, or that gang symbols were worn or gang slogans shouted duringcommission of crimes perpetrated by defendant and others. Such evidenceincluded defendant’s admissions that he participated in the crimes alongwith known gang members, including a prominent leader of the gang, aswell as expert testimony that information revealed by the defendant to

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police would not have been revealed to him by the gang if he were not amember. The Court of Appeal found that the defendant's conduct camewith the rationale of both People v. Prunty (2015) 62 Cal.4th 59 andPeople v. Velasco (2015) 235 Cal.App.4th 66, 68 since all that participatedin the offenses were members of the same street gang.

48. People v. Salvador (2016) 244 Cal.App.4th 741, the First AppellateDistrict, Division 2 held that the trial court erred in adding 10-years ofgang enhancements under section 186.22(b)(1)(C) when it imposed anindeterminate life sentence under the One Strike Law, section 667.61 as itis an alternative penalty scheme. For each of those terms, the court shouldhave imposed a minimum parole eligibility term of 15 years. (See Peoplev. Lopez (2005) 34 Cal.4th 1002, 1004-1007; see also People v. Jones(2009) 47 Cal.4th 566, 578; People v. Williams (2014) 227 Cal.App.4th733, 744-745.)

49. People v. Ramirez and Villarreal (2016) 244 Cal.App.4th 800, the FourthAppellate District, Division 3 held that expert testimony linking thedefendants through their tattoos to a large organization, alleged to be acriminal street gang, here the Surenos, was insufficient to supportmagistrate’s probable-cause finding with respect to charges of active streetgang participation (§ 186.22 subd, (f), or subd. (a).) Predicate offenseswere committed by members of two smaller gangs alleged to be subsets ofthe larger group, but there was no substantive testimony linking the twosmaller groups to each other or to the larger group. (See People v. Prunty(2015) 62 Cal.4th 59, 67, 71-76.) Assuming there was probable cause tobelieve the Surenos, was a criminal street gang, it was still error to denythe defendants section 995 motion because there was no evidence theirparticipation in the gang was other than nominal and passive. Althoughdefendants were acquitted of street gang participation, the erroneous denialof their section 995 motion was prejudicial with respect to other charges,because it permitted the admission of irrelevant gang evidence, absentwhich the defendants would likely have secured a more favorable verdict.(People v. Richardson (2008) 43 Cal.4th 959, 1001.)

50. People v. Garcia (2016) 244 Cal.App.4th 1349, the Fourth AppellateDistrict, Division 1 held that the trial court did not abuse its discretion infailing to bifurcate the gang allegation under section 186.22, subdivision(b)(1). (People v. Hernandez (2004) 33 Cal.4th 1040, 1049-1050 [if thegang evidence is admissible at the guilt phase, any inference of prejudicewould be dispelled, and bifurcation not necessary].) Even though theevidence showed that a defendant was a documented member of adifferent gang than his co-defendants, did not preclude jury from findingthat he committed the robberies in association with and for the benefit ofthe codefendants’ gang. (See People v. Albillar (2010) 51 Cal.4th 47, 67-

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68 [§ 186.22, subd. (b)(1) does not require a defendant be a member of astreet gang, only that he commits a felony to benefit a gang, or to benefit agang, or in association with a gang and that he has a specific intent to aidgang member in the commission of a felony].) The jury was permitted toinfer a relationship from the evidence that members of the codefendants’gang trusted him and treated him as if he was one of them, and from experttestimony regarding close ties among certain gangs.

D. GREAT BODILY INJURY ENHANCEMENT UNDER SECTION 12022.7,SUBDIVISION (D) IS NOT MORE SPECIFIC THAN 12022.95, AND EITHERCAN BE PLED

1. People v. Corban (2006) 138 Cal.App.4th 1111, the First AppellateDistrict, Division 1 held that where child endangerment (§ 273a, subd.(a)), results in death, the prosecution may seek enhancement of thesentence under either section 12022.7, subd. (d), or section 12022.95, asneither enhancement is more specific than the other.

E. GROUP BEATING CAN LEAD TO A FINDING OF A SERIOUS FELONYWITHIN THE MEANING OF SECTION 1192.7, SUBDIVISION (C)(8)

1. People v. Modiri (2006) 39 Cal.4th 481, the California Supreme Courtheld that CALJIC 17.20, the standard instruction on the enhancement forinfliction of great bodily injury, permitting jury to find special allegation tobe true if it concludes defendant participated in a “group beating” withintent to cause great bodily injury. Where the defendant instigated a fightwith the victim that escalated into a chaotic group beating of the victim,but, no determination could be made whether the defendant’s blows werethe ones that caused the victim’s injuries, the court did not err ininstructing jury that it could find, for purposes of punishment in a futureprosecution, that defendant “personally inflict[ed] great bodily injury” onvictim thereby committing a serious felony within meaning of section1192.7, subd. (c)(8), if the jury found that the defendant personally appliedphysical force to victim under such circumstances in which he knew otherparticipants in incident were applying similar force, and knew orreasonably should have known that cumulative effect of force used by allparticipants would result in great bodily injury to victim. Therefore, it wasnot error for the jury to find that the defendant personally inflicted greatbodily injury in the commission of felony pursuant to section 1192.7,subd. (c)(8).

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F. HEALTH AND SAFETY CODE SECTION 11353.6 WITHIN SCHOOL ZONE

1. People v. Davis (2006) 141 Cal.App.4th 519, the Second AppellateDistrict, Division 6, held that there was insufficient evidence that thedefendant was in violation of Health and Safety Code section 11353.6, asthe garage of a private residence that was not accessible to the generalpublic and was not a public area within the meaning of said section. (SeePeople v. Jimenez (1995) 33 Cal.App.4th 54, 60; People v. Townsend(1998) 62 Cal.App.4th 1390, 1395-1397; People v. Todd (1994) 30Cal.App.4th 1724, 1729 [the enhancement does not apply to drugtransactions that take place solely within the confines of a privateresidence].)

G. SERIOUS FELONIES UNDER SECTION 667, SUBDIVISION (a)(1)

1. People v. Ringo (2005) 134 Cal.App.4th 870, the Second AppellateDistrict, Division 5, held that a pre-Proposition 21 conviction for making acriminal threat is a serious felony within the meaning of section 667, subd.(a)(1). Appellant argued that the change in the lock-in date only affectedthe three-strikes law, and not section 667, subd. (a)(1). However, the courtrejected that argument, indicating that the lock-in date of June 30, 1993,within section 667, subd. (h), applies only to the three-strikes law and notsection 667, subd. (a)(1).

2. People v. Warner (2006) 39 Cal.4th 548, the California Supreme Courtheld that were the defendant was convicted a violation of section 288,subd. (a) (lewd or lascivious conduct with a child under 14 years of age),and found that he had suffered prior felony conviction in Nebraska forchild sexual assault, but, did not find that he had acted with specific lewdintent in the Nebraska crime as no facts to that offense were presented bythe prosecution. The court erred in imposing the serious felonyenhancement under 667, subd. (a), and for a strike, where the Nebraskacrime, which required intentional touching that could be “reasonablyconstrued as being for the purpose of sexual arousal or gratification” didnot contain the “specific intent of arousing” element of California’sdefinition of that felony. The court distinguished People v. Murphy (2001)25 Cal.4th 136, as nothing in Murphy supports the proposition thatconduct or behavior not amounting to a felony if committed in this statecould nevertheless quality as a serious felony under section 1192.7, subd.(c).

3. People v. Jackson DEPUBLISHED (2009) 170 Cal.App.4th 1600, theThird Appellate District held that section 667, subdivision (a)’s predicaterequirement that charges must have been “brought and tried separately” fora five-year enhancement to apply to convictions from those charges,

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restricts number of five-year terms to be served (In re Harris (1989) 49Cal.3d 131, 136), rather than the number of allegations the trial court mayfind to be true. Where the defendant was convicted of five prior seriousfelonies, only one of which was brought and tried separately, the trial courthad to impose and then execute a five-year enhancement for oneconviction, then impose and stay remaining enhancements.

4. People v. (2015) 61 Cal.4th 1, the California Supreme held that where adefendant’s second-strike sentence includes multiple determinate terms forseveral offenses, and he has suffered a 5-year prior serious felonyenhancement within the meaning of section 667, subdivision (a)(1), thatenhancement may not be applied to the term imposed for each currentoffense, but may be added only once to multiple determinate terms. (See §1170.1, subd. (a); People v. Tassell (1984) 36 Cal.3d 77, 89-92.)

5. People v. Jones (2015) 236 Cal.App.4th 1411, the Third Appellate Districtheld that section 667, subdivision (a), authorizing a 5-year prison term foreach prior conviction of a serious felony "brought and tried separately,"does not authorize separate 5-year terms based on two priors that werecharged together under the same case number and adjudicated in the sameproceeding. (See In re Harris (1989) 49 Cal.3d 131, 136.) The trial courterred by imposing but staying execution of sentence for one of the priorsunder section 654.

H. PRISON PRIOR ENHANCEMENTS 667.5, SUBDIVISION (b)

1. People v. Langston (2004) 33 Cal.4th 1237, the California Supreme Courtheld that a prison term for escape is “separately served” and can be thebasis for a one-year enhancement on a subsequent felony conviction withinthe meaning of section 667.5, subdivisions (b) and (g). The High Courtaffirmed the lower court’s opinion in People v. Carr (1988) 204Cal.App.3d 774, 780-781, pertaining to the dichotomy between section1170.1, subdivision (c) and section 667.5, subdivision (g). The SupremeCourt overruled the opinion in People v. Kelly (1983) 33 Cal.3d 267, tothe extent that it is inconsistent with this opinion.

2. People v. Fielder (2004) 114 Cal.App.4th 1221, the Second AppellateDistrict, Division 4, held, following a rehearing, that in order forprosecution to avoid application of the 5-year “washout” provision for aone-year prior prison term within the meaning of section 667.5,subdivision (b), the prosecution must prove beyond a reasonable doubtthat the defendant either committed a new offense resulting in a felonyconviction or was in prison custody during that period. The Court ofAppeal also found that even though a CRC commitment is not a priorprison term, the conviction of the offense which sent appellant to CRC is a

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conviction that prevents the washout period from taking effect. However,given the fact that the documents presented to the court did not establishwhen the 1993 conviction, which led to one of the CRC commitments,was “committed,” the evidence was insufficient to establish that there wasnot a 5 year period leading up to the 1997 conviction when appellant wasstate prison free and felony conviction free. Therefore, the matter wasremanded to the superior court to determine if the prior will be retried.

3. People v. Johnson (2006) 145 Cal.App.4th 895, the First AppellateDistrict, Division 5 held that the court erred in imposing prior-prison-termenhancement within the meaning of section 667.5, subdivision (b), wherethe defendant had not completed that term at time of trial. (See People v.Jones (1998) 63 Cal.App.4th 744, 746-747.)

4. People v. McFearson REVIEW GRANTED THEN TRANSFEREDTO FIFTH DISTRICT (SEE INFRA) FORMERLY AT: (2008) 158Cal.App.4th 810, the Fifth Appellate District held that the court erred inusing the defendant’s prior convictions to impose an aggravated sentenceand to impose one-year prior prison term enhancements pursuant to theterms of section 667.5, subdivision (b). The court found that the priorprison term is merely a subset of a prior conviction, and therefore violatedPeople v. Prather (1990) 50 Cal.3d 428, and People v. Jones (1993) 5Cal.4th 1142 [cannot impose a § 667 enhancement for the same prior asthe § 667.5, subd. (b)].)

5. People v. Garcia (2008) 167 Cal.App.4th 1550, the Second AppellateDistrict, Division 5 held that, where the court imposed indeterminatesentences, based on multiple offenses, some being serious felonies, andpriors that made him eligible for a three strike sentence, and the fact thatthe jury also found that he had served five prior prison terms, andpersonally used a firearm in commission of all offenses, except a firearmpossession by felon, the court was required to exercise its discretion andeither impose one-year prior prison term enhancements pursuant to section667.5, subdivision (b), on every appropriate count, depending on whethereach offense was a “serious felony,” (see People v. Williams (2004) 34Cal.4th 401-405; People v. Misa (2006) 140 Cal.App.4th 837, 845-846),or strike the enhancements pursuant to section 1385, subdivision (a). (SeePeople v. Bradley (1998) 64 Cal.App.4th 386, 395-396; see also People v.McCray (2006) 144 Cal.App.4th 258, 267.)

6. People v. McFearson (2008) 168 Cal.App.4th 388, the Fifth AppellateDistrict held that the trial court erred when it used defendant’s priorconvictions to impose an aggravated sentence and then used the sameconvictions wherein appellant was sentenced to state prison, as priorprison terms to enhance defendant’s sentence by those 3 additional years.

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(See People v. Prather (1990) 50 Cal.3d 428 and People v. Jones (1993) 5Cal.4th 1142 pertaining to an improper dual use.) The matter wasremanded back to the trial court to determine if the aggravated sentenceshould be given and or if the court wanted to impose any or all of the priorprison term enhancements.

7. People v. Conerly (2009) 176 Cal.App.4th 240, the First AppellateDistrict, Division 3 held that the court must order joint trial and theseverance is the exception].) the trial court must strike or impose a priorprison term enhancement (§ 667.5, subd. (b).) The Court of Appeal canstrike the 1-year enhancement when the trial court's intention is clear thatit did not want them imposed, and order the superior court to correct theabstract of judgment since an unauthorized sentence can be corrected atany time. (People v. Langston (2004) 33 Cal.4th 1237, 1231.)

8. In re Preston (2009) 176 Cal.App.4th 1109, the First Appellate District,Division 3 held that the defendant’s request for habeas corpus reliefpremised solely on arguments that his confinement was in excess of themaximum allowed by law presented cognizable claims for appellate courtconsideration. Whether a parolee has remained free of prison custody forpurposes of section 667.5, subdivision (b), depends on whether he hasremained on parole without revocation or has been discharged fromcustody for a continuous five-year period. (See also In re Panos (1981)125 Cal.App.3d 1038, 1042.)

9. People v. Weeks (2014) 224 Cal.App.4th 1045, the Fourth AppellateDistrict, Division 2 held that the trial court erred by imposing a 1-yearenhancement for a prior prison term under section 667.5, subdivision (b),where the defendant had "not completed" that term and was still in custodyfor the offense that the 1-year was based upon. The crime in the currentcase occurred on January 2011, wherein he was still in custody on the"prior" that occurred in 2006. The trigger date is the date that the newcrime was committed, and since the defendant was still serving his term onthe 2006 offense, it was not a prior within the meaning of section 667.5,subdivision (b). (See § 667.5, subd. (k).)

I. STAY THE SHORTER SENTENCE, INCLUDING ENHANCEMENTS

1. People v. Manila (2006) 139 Cal.App.4th 589, the Fifth Appellate Districtheld that section 654's prohibition against multiple punishments for asingle crime applies to sentences imposed under enhancement statuteswhere the enhancement is based on conduct in which the defendantengaged in committing the crime (§ 12022, subd. (c)), including armingenhancements. (See People v. Coronado (1995) 12 Cal.4th 145.) However, section 654 does not apply to status enhancements such as those

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based on prior convictions. Where the defendant was convicted of Healthand Safety Code section 11351.5 and of being a felon in possession of afirearm (sec. 12021, subd. (a)), and the allegation of being armed duringthe possession of the drug offense was found true based on same evidence,enhancement had to be stayed.

J. HEALTH AND SAFETY CODE SECTION 11353.6 WITHIN SCHOOL ZONE

1. People v. Blake (2004) 117 Cal.App.4th 543, the Second AppellateDistrict, Division 7, held that, on the fact of this case, caustic chemicals,such as pepper spray and mace, when used to facilitate or threaten arobbery, constitute “dangerous or deadly” weapons for which an enhancedsentence within the meaning of section 12022, subd. (b) may be imposed.

2. People v. Crites (2006) 135 Cal.App.4th 1251, the Second AppellateDistrict, Division 6 held that where two special allegations within themeaning of section 12022, subd. (b) (knife and steel-toed shoe) thatdefendant used a deadly or dangerous weapon during commission of aviolent felony were found true, the trial court properly imposed the firstenhancement and stayed the second. (See People v. Jones (2000) 82Cal.App.4th 485, 492-493.) The second enhancement was authorized bylaw, therefore the court was not required to strike it, and could validly stayit.

3. People v. Burton (2006) 143 Cal.App.4th 447, the Third Appellate Districtheld that there the evidence was sufficient to support a finding that adangerous or deadly weapon was used within the meaning of section12022, subd. (b)(1) as there are two classes of dangerous or deadlyweapons, (1) weapons such as guns and blackjacks, and(2) instrumentalities which may be used as a weapon, but, which havenondangerous uses as well. A jury can infer the use of a dangerous ordeadly weapon from the victim’s injuries. (People v. Alvarez (1996) 14Cal.4th 155, 179.) Here, the defendant’s use of gloves was sufficient tosupport the enhancement.

4. People v. Smith (2007) 150 Cal.App.4th 89, the Second Appellate District,Division 4 held that it was not error to impose a deadly weapon useenhancement pursuant to section 12022, subd. (b)(1), where the defendantused a knife to kill a dog and was convicted of animal cruelty within themeaning of section 597, subd. (a)(2). The statute does not limitenhancement’s application to attacks on human beings, and use of a knifeor other deadly weapon is not an element of the crime of animal cruelty,since in the abstract (see People v. Hansen (1994) 9 Cal.4th 300, 317), thedeath of the animal can be caused without the use of a deadly weapon atall.

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5. People v. Jones (2007) 157 Cal.App.4th 1373, the Second AppellateDistrict, Division 7 held that the court’s discretion to strike a sentenceenhancement, pursuant to section 1385, includes discretion to striking adeadly weapon enhancement under section 12022, subd. (b)(1). Therationale is similar to that used by the Supreme Court in People v. Meloney(2003) 30 Cal.4th 1145, 1156.) As a result of the court “uniformeddiscretion,” it must be remanded for resentencing. (People v. Belmontes(1983) 34 Cal.3d 335, 348, fn. 8; People v. Meloney, supra, 30 Cal.4th atp. 1165.)

K. SECTION 12022, SUBDIVISION (c)

1. People v. Delgadillo (2005) 132 Cal.App.4th 1570, the Fourth AppellantDistrict, Division 2, held that evidence that the defendant stored firearmsin his bedroom along with a significant sum of money and in closeproximity to cars in which defendant and his colleagues stored labequipment and raw material for the manufacture of methamphetamine,established, pursuant to the majority of the court, following People v.Bland (1995) 10 Cal.4th 991, 999, that the firearms were available to thedefendant for use during the manufacturing process, and thus supportedthe personal use allegation within the meaning of section 12022, subd. (c)enhancement for being personally armed with a firearm during thecommission of the crime of manufacturing methamphetamine, eventhough defendant was not in possession of the guns when he was detained,and there was no evidence he was ever armed while at methamphetaminelab. The dissent does not believe that Bland should support thisenhancement.

2. People v. Pitto (2008) 43 Cal.4th 228, the California Supreme Court heldthat a defendant who was within arm’s reach of both a gun and a saleableamount of methamphetamine in his vehicle when he encountered police,and admittedly knew of gun’s presence and admitted purposefully placingit there, and no dispute existed that firearm, because of its location, wasavailable for offensive or defensive use in committing underlying drugcrime (see People v. Bland (1995) 10 Cal.4th 991), the court did not err indetermining that the defendant was “armed” with a gun “in thecommission” of offenses under section 12022, subdivision (c), andimposing a sentence enhancement. Additionally, the defendant was notentitled to a sua sponte instruction highlighting evidence that he placedgun in a position near the drugs for a reason unrelated to drug crimesbecause his deliberate placement of the weapon negated any claim thatproximity of gun and drugs was result of mere accident or coincidence.

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L. SECTION 12022.5 USE V. ARMED

1. Alvarado v. Superior Court (2007) 146 Cal.App.4th 993, the SecondAppellate District, Division 7 held that the preliminary hearing court erredin finding that there was sufficient evidence to support a “use”enhancement withing the meaning of section 12022.5, subd. (a). Theevidence established that the defendant, who was charged with burglary,was armed, and the only action the defendant demonstrated with the gunwas to place his hand on it. The gun was not pointed at the victim at anytime. The defendant was merely armed in this instance. (See People v.Reaves (1974) 42 Cal.App.3d 852, 856-857; People v. Superior Court(Pomilia) (1991) 235 Cal.App.3d 1464, 1472.) Given the fact that thedefendant committed no “action” with the gun, or there was no gun related“conduct,” this is a situation of being armed rather than the use of theweapon.

2. People v. Wardell (2008) 162 Cal.App.4th 1484, the Sixth AppellateDistrict held that an enhancement within the meaning of section 12022.5,subdivision (a), does not require specific intent, and nothing in the statuteindicates that the gun has to be pointed at the victim when it is otherwisedisplayed and seen by the victim. (People v. Granado (1996) 49Cal.App.4th 317, 322; see also Alvarado v. Superior Court (2007) 146Cal.App.4th 993, 1002 [there are no particular fact patterns to show thedefendant has “used” the gun for enhancement purposes].)

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M. SECTION 12022.53

1. People v. Flores (2005) 129 Cal.App.4th 174, the Fourth AppellateDistrict, Division 3 held that the court erred in omitting from CALJIC17.19.5, where the defendant was charged with murder of an accomplice,that the section 12022.53, subd. (d) enhancement, does not apply if thevictim was the defendant’s accomplice. While one cannot be anaccomplice to one’s own murder, the section 12022.53, subd. (d)enhancement does not apply if the defendant is convicted under thedoctrine of transferred intent and the decedent was an accomplice to thetarget crime.

2. People v. White (2005) 133 Cal.App.4th 473, the Second AppellateDistrict, Division 4, held that an enhancement within the meaning ofsection 12022.53, which is attached to a subordinate count, is imposed asone-third the middle term of the enhancement; therefore, 3 years, 4months, and it is not imposed full term.

3. People v. Hernandez (2005) 134 Cal.App.4th 474, the Second AppellateDistrict, Division 7 held that section 12022.53, which imposes a25-year-to-life enhancement when a defendant is convicted of a murdercommitted for the benefit of a criminal street gang and any principal firedthe fatal shot (§ 12022.53, subd. (e)(1), and where enhancement isimposed upon the defendant convicted of a murder not committed for thebenefit of a criminal street gang only if the defendant personally did theshooting (§ 12022.53, subd. (d)), does not deny the defendant the right ofequal protection or due process of law to those who aid and abet agang-related murder in which the perpetrator uses a gun. (See People v.Gonzales (2001) 87 Cal.App.4th 1, 12-15.)

4. People v. Carrasco (2006) 137 Cal.App.4th 1050, the Second AppellateDistrict, Division 6 held that the defendant personally discharged firearmduring the commission of a robbery, even though no gun was displayedwhen victim gave the defendant the money. (See People v. Granado(1996) 49 Cal.App.4th 317, 325.) Finally, the Court of Appeal held,relying on People v. Bracamonte (2003) 106 Cal.App.4th 704, 713, thatthe section 12022.53, subd. (b) enhancement, which attached to count 1,should have been stayed and not stricken when the section 12022.53, subd.(c) enhancement is imposed. (See § 12022.53, subd. (f).)

5. People v. Shabazz (2006) 38 Cal.4th 55, the California Supreme Courtheld that the special circumstance set forth in section 190.2, subd. (a)(22),which authorizes imposition of a punishment of death or life imprisonmentwithout the possibility of parole for an active participant of a criminalstreet gang who “intentionally killed the victim” to further the activities of

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the gang, applies to a defendant who discharged a firearm with the intentto kill one person, but, missed the intended victim and killed anotherindividual. (See also People v. Scott (1996) 14 Cal.4th 544, 551 [adefendant who shoots with the intent to kill a certain person and hits abystander instead is subject to the same criminal liability that would havebeen imposed had the fatal blow reached the person for whom intended].) The High Court also ruled that a defendant sentenced to life without thepossibility of parole for first degree murder is also subject to a sentenceenhancement of 25 years to life pursuant to section 12022.53, subd. (d) forpersonally discharging a firearm and causing death in the commission ofthe murder. (See § 669.) The Court rejected appellant’s argument thatsection 12022.53, subd. (j) precludes the imposition of that enhancement.

6. People v. Grandy (2006) 144 Cal.App.4th 33, the Second AppellateDistrict, division 4, held that where the defendant aimed his gun andpulling its trigger, causing an explosion in its firing chamber, constituted adischarge within the meaning of section 12022.53, subd. (c) even thoughthe gun malfunctioned and did not actually emit a bullet. (See People v.Palmer (2005) 133 Cal.App.4th 1141, 1148-1153 [the imposition ofsection 12022.53, subd. (d) regardless of whether the bullet caused injury;the firing of the gun alone, caused the victim to break his ankle].)

7. People v. Smart (2006) 145 Cal.App.4th 1216, the Third Appellate Districtheld that the court erred in imposing two separate 25-L enhancementswithin the meaning of section 12022.53, subd. (d), when the prosecutiononly charged one offense (section 246, shooting into an occupied vehicle)that qualified for the enhancement even though there were two victimsinvolved in the incident. Section 12022.53, subd. (f), which provides thatonly one additional term of imprisonment under that section can beimposed on a defendant for “each crime.” (See People v. Oates (2004) 32Cal.4th 1048, 1057 [only one enhancement per crime].) In other words,the enhancement does not define the crime, it just adds an additionalpenalty for the crime committed. (People v. Jimenez (1992) 8 Cal.App.4th391, 398.)

8. People v. Warner (2007) 155 Cal.App.4th 57, the Fifth Appellate Districtheld that where the jury finds true multiple special allegations related tothe use of a firearm, the lesser enhancement, here section 12022.5, subd.(a), must be stricken rather than stayed. (People v. Bracamonte (2003) 106Cal.App.4th 704.) NOW SEE People v. Gonzalez (2008) 43 Cal.4th 1118,AND People v. Warner (2008) 166 Cal.App.4th 653, BELOW.

9. People v. Sun (2007) 157 Cal.App.4th 277, the Second Appellate District,Division 4 held that where the defendant was subject to enhancementsunder both sections 12022.53, subds. (b)-(d) and 12022.7, subd. (e), the

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latter enhancement should have been stricken, rather than merely stayed,but the subd. (b) and (c) enhancements should be stayed and not stricken. (See People v. Bracamonte (2003) 106 Cal.App.4th 704.) The courtpoints out the discrepancy between section 12022.53, subd. (f) and subd.(h), the first indicating only one enhancement is to be imposed, and thelater indicating that the court shall not strike an allegation under thissection. (See People v. Gonzalez (2008), infra.)

10. People v. Zarazua (2008) 162 Cal.App.4th 1348, the Third AppellateDistrict held that the shot which was fired, even though it did not hit thevictim, but did cause a car crash, which was the proximate cause of theaccident and death of the minor victim, was sufficient evidence to supportthe true finding on the 25 to life enhancement within the meaning ofsection 12022.53, subdivision (d). (See People v. Palmer (2005) 133Cal.App.4th 1141, 1148-1150.)

11. People v. Gonzalez (2008) 43 Cal.4th 1118, the California Supreme Courtheld that section 12022.53 requires that, after a trial court imposespunishment for the section 12022.53 firearm enhancement with the longestterm of imprisonment, the remaining section 12022.53 firearmenhancements and any section 12022.5 firearm enhancements that werefound true for the same crime must be imposed and then stayed. The courtspecifically disapproved of People v. Bracamonte (2003) 106 Cal.App.4th704, which held that the lesser enhancements were to be stricken.

12. People v. Monjaras (2008) 164 Cal.App.4th 1432, the Third AppellateDistrict held that where a defendant commits a robbery by displaying anobject that looks like a gun, the object’s appearance and the defendant’sconduct and words in using it may constitute sufficient circumstantialevidence to support a finding that it was a firearm within meaning offirearm use enhancement within the meaning of section 12022.53(b). (SeePeople v. Rodriguez (1999) 20 Cal.4th 1, 11-12; People v. Lochtefeld(2000) 77 Cal.App.4th 533, 541 [an object can be established by direct orcircumstantial evidence].) The victim’s inability to say conclusively thatgun was real and not a toy does not create a reasonable doubt, as a matterof law, that gun was a firearm. (See People v. Rodriguez, supra, 20Cal.4th at 13; People v. Lochtefeld, supra, 77 Cal.App.4th at 541.)

13. People v. Warner (2008) 166 Cal.App.4th 653, the Fifth Appellate Districtheld that where a violation of section 12022.53, subdivision (d), and“personal use” firearm enhancement allegations are proven, (see§§ 12022.53, subd. (b), 12022.5, subd. (a)) the personal-use enhancementsmust be imposed and stayed, not stricken. (People v. Gonzalez (2008) 43Cal.4th 1118, 1123, 1130, fn.8.)

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14. People v. Sinclair (2008) 166 Cal.App.4th 848, the Second AppellateDistrict, Division 4 held that the phrase “another enhancement” as used insection 12022.53, subdivision (j), which provides that a trial court mustimpose punishment for a gun use enhancement rather than imposepunishment authorized under any other provision of law unless anotherenhancement provides for a greater penalty or longer term ofimprisonment, does not encompass combinations of enhancements. Where appellant was also charged with a gang enhancement in each countpursuant to 186.22, that a principal in each offense had been armed with afirearm, and that principal had personally used a firearm, the trial courtwas required to impose gun use enhancement, and impose and stay gangenhancement, unless court exercised its discretion to strike gangenhancement. Where the defendant was convicted a section 245,subdivision (a)(2) (assault with the use of a gun), the trial court erred inimposing the armed principal enhancement pursuant to section 12022,subdivision (a)(1). Because assault with a firearm is not listed as a violentfelony in section 667.5, subdivision (c) and is encompassed by section1192.7, subdivisions (c)(23)’s definition of a “serious felony,” thedefendant’s conviction for assault with a firearm was only subject tofive-year gang enhancement for serious felonies as opposed to 10-yearenhancement for violent felonies.

15. People v. Munoz (2009) 178 Cal.App.4th 468, the Third District held thatthe trial court erred when it indicated that it “had to” impose consecutivesentences because two counts pertained to two separate victims, and theincidents occurred at separate times. The court can consider sentencingappellant to either the upper term or consecutive sentences based onmultiple victims (People v. Calhoun (2007) 40 Cal.4th 398, 408; People v.Caesar (2008) 167 Cal.App.4th 1050, 1-61), however, here the incidentswere not at separate times. Therefore, the matter must be sent back due tothe failure of the court to exercise its discretion. (People v. Downey(2000) 82 Cal.App.4th 899, 912.) Appellant was convicted of attemptedmurder in count 2, an indeterminate sentence, and in count 4 with shootingfrom a motor vehicle, a determinate sentence. If the court, on remandchooses to impose count 4 consecutive to count 2, the enhancement under12022.53, subdivision (d), found true as to both counts, would be full termconsecutive, 25 - life, and not 1/3 the middle term of the enhancementsince count 2 is an indeterminate term, and count 4 is determinate, due tothe fact that section 1170.1 does not apply in this circumstance.

16. People v. Frausto (2009) 180 Cal.App.4th 890, the Second AppellateDistrict, Division 8 held that the phrase “in the commission of” in section12022.53, subdivision (d) has the same meaning as the identical orequivalent language in sections 667.61, 12022.3, 12022.5 and the felonymurder statutes. As a result, a firearm is discharged “in the commission

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of” a felony within the meaning of section 12022.53, subdivision (d) if theunderlying felony and the discharge of the firearm are part of onecontinuous transaction, which includes flight after the felony until thedefendant reaches a place of temporary safety. Additionally, the Court ofAppeal found that the defendant's three prior convictions pursuant tosection 667, subdivision (a)(1) could not support separate enhancementsbecause they were the result of a single prior proceeding. (In re Harris(1989) 49 Cal.3d 131, 136.)

17. People v. Sok (2010) 181 Cal.App.4th 88, the Second Appellate District,Division 7 held that where the defendant received a determinate sentence,plus a 25-year-to-life enhancement pursuant to section 12022.53,subdivision (d) for the use of the gun, and the crime was committed for thebenefit of a criminal street gang (§ 186.22), the crime was not “punishableby imprisonment in the state prison for life” as the phrase is used insection 186.22, and as a result, the trial court correctly imposed the10-year enhancement under section 186.22, subdivision (b)(1)(C), ratherthan a 15-year minimum parole eligibility period under section 186.22,subdivision (b)(5). (See People v. Montes (2003) 31 Cal.4th 350,352-353, 362.) Where the defendant was convicted of shooting at anoccupied vehicle (§ 246), with special findings that the crime wascommitted for the benefit of a criminal street gang, that the defendantdischarged a firearm causing great bodily injury, and that the defendanthad a prior strike, the trial court erred in imposing the 10-year gangenhancement under section 186.22, subdivision (b)(1)(C), and shouldinstead have imposed alternate minimum sentence of 15 to life undersection 186.22, subdivision (b)(4).

18. People v. Botello (2010) 183 Cal.App.4th 1014, the Second AppellateDistrict, Division 4 held that the evidence was insufficient to support thefirearm enhancements under section 12022.53, where the defendant had topersonally use the weapon, as the witness could not identify whichdefendant was the shooter. Section 12022.53, subdivision (e)(1) cannot beargued for the first time on appeal to save an imposed firearmenhancement under subdivision (d) or the stayed enhancements undersubdivisions (b) and (c) since that statute has a specific pleading and proofrequirement. (See People v. Mancebo (2002) 27 Cal.4th 735; People v.Arias (2010) 182 Cal.App.4th 1009.) Where the information charged thedefendants with personally committing acts specified in the sections12022.53, subdivision (b) through (d), but did not mention theapplicability of those enhancements through subdivision (e)(1), either bydesignation of that provision or by description of the requiredcircumstances, application of subdivision (e)(1) to defendants for the firsttime on appeal would violate the express pleading requirement of thatprovision and the defendants' due process right to notice. The harmless

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error analysis does not apply to the failure to meet the pleadingrequirement of subdivision (e)(1). The prosecution forfeited its right torely on that subdivision where it failed to plead subdivision (e)(1), failedto ensure the jury findings under that subdivision, failed to raise theprovision at sentencing, and obtained a sentence that in fact violatedsubdivision (e)(1).

19. People v. Camino (2010) 188 Cal.App.4th 1359, the Fourth AppellateDistrict, Division 3 held that as it pertains to appellant's sentence, theCourt of Appeal did find insufficient evidence to support the jury's findingthat he vicariously discharged a gun, within the meaning of section12022.53, subdivisions (c), (e)(1) [20 years for the vicarious liability basedon the gang participation]), causing the decedent's death where thedecedent was the lone shooter, and the only armed individual in thedefendant's group. The decedent could not be the principal in his ownmurder. (People v. Antick (1975) 15 Cal.3d 79, 91; see also People v.Superior Court (Shamis) (1997) 58 Cal.App.4th 833, 845.) The jury wasmislead by CALCRIM 1402, which applies to the gun/gang enhancement,given the lack of evidentiary support for the gun enhancement.

20. People v. Yang (2010) 189 Cal.App.4th 148, the Third Appellate Districtheld that the trial court erred by imposing the gun enhancement undersection 12022.53, subdivision (d) and (e)(1) for firearm discharge by aco-principal that caused death in a gang-committed felony on thedefendant, who was the aider and abetter to a murder, where the defendantwas only convicted of a voluntary manslaughter and participating in acriminal street gang, but acquitted him of murder, attempted murder, andshooting at an occupied car. The enhancement did not apply because thedefendant was not convicted of one of the qualifying offenses enumeratedby statute. (See People v. Garcia (2002) 28 Cal.4th 1166, 1174 [thedefendant must be convicted of a substantive offense enumerated in thestatute]; see also People v. Smart (2006) 145 Cal.App.4th 1216, 1226 [anenhancement cannot define the crime, cannot be the tail wagging thedog].) The court then imposed the 186.22, subdivision (b)(1)(C), for theserious felony that it had previously stayed.

21. People v. Law (2011) 195 Cal.App.4th 976, the Third Appellate Districtfollowed their previous decision in People v. Monjaras (2008) 164Cal.App.4th 1432, where they held that where a defendant commits arobbery by displaying an object that looks like a gun, the object'sappearance and the defendant's conduct and words in using it mayconstitute sufficient circumstantial evidence to support a finding that itwas a firearm within meaning of firearm use enhancement within themeaning of section 12022.53, subdivision (b). Here there is evidence that

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the defendant brandished and repeatedly discharged a firearm at thevictims suffices to establish the defendant's use of a firearm.

22. People v. Thiessen (2012) 202 Cal.App.4th 1397, the Third AppellateDistrict held that the defendant's admissions that he pointed his shotgunalongside accomplice, at the same the his accomplice aimed his rifle at theintended victim, and pulled the trigger to make a "click" noise, therebyemboldening accomplice to shoot, were sufficient to sustain the gunenhancement within the meaning of section 12022.53, subdivision (b),even if shotgun was inoperable and unseen by anyone else. There is norequirement that victim see or perceive the firearm for the enhancement toapply. Personal use of a firearm may be found where the defendantintentionally displayed a firearm in a menacing manner in order tofacilitate the commission of an underlying crime. (People v. Carrasco(2006) 137 Cal.App.4th 1050, 1059.)

23. People v. Lisea (2013) 213 Cal.App.4th 408, the Third Appellate Districtheld that the court did not err in sentencing the defendant, a gang member,who was convicted of, among other offenses, attempted murder, as anaider and abetter, and criminal street gang participation within the meaningof section 186.22, subdivision (a). The Court of Appeal found that hecould be sentenced to an additional 25-L for a violation of section12022.53, subdivisions (d), (e)(1), as a principle to the acts which were thenatural and probable consequences of the conduct of the other participants.(See People v. Gonzalez (2001) 87 Cal.App.4th 1, 13, 14.)

24. People v. Smit (2014) 224 Cal.App.4th 977, the Fourth Appellate District,Division 3, held that the defendant’s use of a boobytrap to set off a zip-gunin the attempted murder of the victim, detective Johnson, whose testimonywas needed to convict him of certain drug offenses, constituted thepersonal "use" of a firearm (see People v. Chambers (1972) 7 Cal.3d 666,672 [defining use]), so that the enhancement under section 12022.53,subdivision (b) would be applicable. The Court of Appeal noted that noteven Boris or Natasha ever eclipsed what the defendant did here.

25. People v. Garcia (2015) 240 Cal.App.4th 1282, the Fourth AppellateDistrict, Division 2 held that the trial court erred in imposing the 3-yearenhancement for great bodily harm under section 12022.7, when the courtalso imposed the 25-years-to-life enhancement 12022.53, subdivision (d)for intentionally discharging a firearm with great bodily injury.

N. SECTION 12022.55

1. People v. Ramirez (2010) 184 Cal.App.4th 1233, the Second AppellateDistrict, Division 5 held that the court erred in imposing a 5 year

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enhancement within the meaning of section 12022.55, for intentionallyinflicting great bodily injury or death on a person “other than an occupantof a motor vehicle” as a result of discharging a firearm from a motorvehicle in the commission of a felony when the victim is an occupant of amotor vehicle.

O. SECTION 12022.6

1. People v. Fernandez (2004) 123 Cal.App.4th 137, the Fourth AppellateDistrict, Division 2, held that movement of the victim’s property from itswarehouse to the loading dock was a “taking” and caused a “loss” withinthe meaning of section 12022.6, subd. (a)(2), which provides for anenhanced penalty when the loss caused by a felonious taking of propertywhich exceeds $150,000.

2. People v. Frederick (2006) 142 Cal.App.4th 400, the Second AppellateDistrict, Division 6 held that merely because the court imposed sentenceon the co-defendant, and applied section 654 to certain counts, it is notrequired to do so for appellant when the facts of the case do not support it. There is no reason why the mistake (in sentencing the co-defendant)should be perpetuated and carried into the sentencing of a codefendant. (People v. Nelson (1987) 194 Cal.App.3d 77, 80.) Where the offenses areseparated by time and involve different victims, section 654 does not haveto be applied. (People v. Gaio (2000) 81 Cal.App.4th 919, 935.) Additionally, the Court of Appeal found that the crime of filing falseincome tax return is not part of a common scheme or plan to take propertywithin meaning of section 12022.6, subd. (b), under which losses fromcommon scheme may be aggregated for purposes of determining sentenceenhancement.

3. People v. Green (2011) 197 Cal.App.4th 1485, the Forth AppellateDistrict, Division 1 held that the phrase “common scheme or plan” insection 12022.6, subdivision (b) does not have a technical meaning, butrather are understood to have a plain, ordinary meaning these wordscommonly convey. In order to prove a “common scheme or plan” forpurposes of this statute, a court must compare the losses from eachcharged count and determine whether there are a concurrence of commonfeatures that the various losses are naturally to be explained as caused by ageneral plan of which they are the individual manifestations. The commonfeatures must indicate the existence of a plan rather than a series of similarspontaneous acts, but the plan thus revealed need not be distinctive orunusual. The evidence was insufficient to support the jury's findings thatlosses incurred by the defendant's embezzlement arose from a “commonplan or scheme” where the victims in count one and two were not

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connected, the methods of theft were different, and the schemes to defraudwere separate and distinct and not contingent on each other.

4. People v. Evans (2013) 215 Cal.App.4th 242, the Fourth AppellateDistrict, Division 1 held that the trial court erred in permitting the jury tocalculate the victim’s losses for his property damage for property taken,damaged or destroyed under section 12022.6, subdivisions(a)(2) and (b). The Court of Appeal concurred with the defendant that a "loss" means thevalue of the property taken, damaged, or destroyed, and does not includeother types of economic losses suffered by the victim, such as loss ofincome or profits. However, the victim's losses to all of the propertydamaged or taken, based in the light most favorable to the verdict, still canbe established at slightly over $200,000, and therefore there was sufficientevidence to uphold the enhancement.

5. People v. Williams (2013) 218 Cal.App.4th 1038, the Fifth AppellateDistrict held that there was insufficient evidence of a violation of section12022.6, losses in excess of $65,000. This case is similar to People v.Evans (2013) 215 Cal.App.4th 242, wherein the Fourth Appellate District,Division 1held that the trial court erred in permitting the jury to calculatethe victim’s losses for his property damage for property taken, damaged ordestroyed under section 12022.6, subdivisions(a)(2) and (b). The Court ofAppeal concurred with the defendant that a "loss" means the value of theproperty taken, damaged, or destroyed, and does not include other types ofeconomic losses suffered by the victim, such as loss of income or profits. In this case there was insufficient evidence that the losses were over$65,000 for the thefts involved.

P. SECTION 1192.7, SUBDIVISION (c)(37)

1. People v. Neely (2004) 124 Cal.App.4th 1258, the Second AppellateDistrict, Division 5 held that when section 1192.7, subd. (c)(37),“intimidation of victims or witnesses, in violation of Penal Code section136.1" was added with the passage of Proposition 21, it added to the list ofserious felonies all violations of that section, not only those that include“intimidation” or the use of, or threat, to use force as an element.

Q. PENAL CODE SECTION 12022.7, SUBDIVISION (a)

1. People v. Esquibel (2006) 143 Cal.App.4th 645, the Second AppellateDistrict, Division 8 held that the court erred in imposing both a 25 to lifeenhancement pursuant to section 12022.53, subd. (d) and a great bodilyinjury enhancement within the meaning of section 12022.7, subd. (a).

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2. People v. Sun (2007) 157 Cal.App.4th 277, the Second Appellate District,Division 4 held that where the defendant was subject to enhancementsunder both sections 12022.53, subd.s (b)-(d) and 12022.7, subd. (e), thelatter enhancement should have been stricken, rather than merely stayed,but the subd. (b) and (c) enhancements should be stayed and not stricken. (See People v. Bracamonte (2003) 106 Cal.App.4th 704.) The courtpoints out the discrepancy between section 12022.53, subd. (f) and subd.(h), the first indicating only one enhancement is to be imposed, and thelater indicating that the court shall not strike an allegation under thissection.

3. People v. Cross (2008) 45 Cal.4th 58, the California Supreme Court heldthat a surgical abortion, performed on a 13 year old girl, can support anenhancement under section 12022.7 for the defendant’s personal inflictionof great bodily injury in committing the offense that led to the victim’spregnancy, and that in this instance the pregnancy itself can constitute suchgreat bodily injury. (See People v. Superior Court (Duval) (1988) 198Cal.App.3d 1121, 1131-1132; see also People v. Sargent (1978) 86Cal.App.3d 150.) Where the 13-year-old victim became pregnant by herstepfather and carried the fetus for 22 weeks, the jury could reasonablyhave found that the victim suffered a significant or substantial physicalinjury. Where the trial court instructed the jury that “a pregnancy or anabortion may constitute great bodily injury” and did not instruct them onmeaning of personal infliction the trial court did not err by failing toinstruct on meaning of personal infliction, but the court erred in instructingthe jury that an abortion may constitute great bodily injury, even thoughsuch statement was legally correct, because the defendant did notpersonally perform the abortion. Such instruction would not have misledthe jury into concluding that the defendant inflicted great bodily harm byvirtue of victim’s abortion by facilitating the victim in obtaining theabortion.

4. People v. Esquibel (2008) 166 Cal.App.4th 539, the Second AppellateDistrict, Division 8 held that the trial court erred in imposing both a25-year-to-life enhancement under section 12022.53, subdivision (d) and agreat bodily injury enhancement under section 12022.7, subdivision (a),with respect to same victim.

5. People v. Frazier (2009) 173 Cal.App.4th 613, the Third AppellateDistrict held that where the defendant was convicted of assault by meansof force likely to produce great bodily injury (§ 245, subd. (a)(1)), after shedirected a dog to attack the victim, there was sufficient evidence to sustainthe section 12022.7, subdivision (a) enhancement for “personally”inflicting great bodily injury on the victim.

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6. People v. Valdez (2010) 189 Cal.App.4th 82, the Fourth Appellate District,Division 3 held that the defendant/driver's failure to stop and renderassistance at the scene of an injury accident in violation of Vehicle Codesection 20001, subdivision (a) did not support a great bodily injuryenhancement under section 12022.7, subdivision (a), because the injurieswere caused by acts which occurred prior to the criminal act, not as aresult of defendant's flight, and because the defendant/driver was notengaged in the commission of a felony or attempted commission when thecollision occurred. (See People v. Braz (1998) 65 Cal.App.4th 425,430-432; People v. Wood (2000) 83 Cal.App.4th 862, 864-867.) In asituation where the injury is caused by the defendant's failure to stop andrender aid, the great bodily injury enhancement can be applied. (SeeBailey v. Superior Court (1970) 4 Cal.App.3d 513, 521; People v. Scheer(1998) 68 Cal.App.4th 1009, 1021-1022.)

7. People v. Poroj (2010) 190 Cal.App.4th 165, the Fourth AppellateDistrict, Division 2 held that section 12022.7, subdivision (a), theenhancement where the defendant “personally inflict[ed]” great bodilyinjury “in the commission of a felony or attempted felony,” does notrequire a showing of intent to inflict great bodily injury separate or apartfrom the intent required to commit the felony or attempted felony. TheCourt of Appeal rejected the premise from People v. Verlinde (2002) 100Cal.App.4th 1146, and People v. Carter (1998) 60 Cal.App.4th 752 that atleast impliedly indicate that section 12022.7, subdivision (a) contains itsown general intent requirement.

8. People v. Julian (2011) 198 Cal.App.4th 1524, the Fourth AppellateDistrict, Division 1 held that the trial court did not err, in this matterwherein appellant was convicted of two counts of vehicular manslaughter,when it imposed two great bodily injury enhancements, one under section12022.7, subdivision (a), one for inflicting great bodily injury on anotherperson who died as a result of the same conduct, the defendant's sentencefor the manslaughter of that person being stayed under section 654, andone for inflicting great bodily injury on another person who was renderedcomatose (§ 12022.7, subd. (b).) (See People v. Verlinde (2002) 100Cal.App.4th 1146; People v. Weaver (2007) 149 Cal.App.4th 1301,1330-1331.) In other words, on count 1, two GBI enhancements can beimposed for the other two victims. The GBI enhancement clearly cannotbe imposed on count 1 for the person who died in that count pursuant tosection 12022.7, subdivision (g).

9. People v. Mercado (2013) 216 Cal.App.4th 67, the Second AppellateDistrict, Division 3 held that the trial court erred by imposing 2 separateenhancements on the attempted murder count, one for the infliction ofgreat bodily injury (§ 12022.7, subd. (a)) and a second for the infliction of

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injury on a pregnant woman resulting in the termination of her pregnancy(§ 12022.9), because pursuant to section 1170.1, subdivision (g), only thegreat of the two enhancements for great bodily injury could be imposed;therefore the 5 year enhancement within section 12022.9 was imposed andthe section 12022.7, subdivision (a) had to be stricken.

10. People v. Canela (2014) 224 Cal.App.4th 703, the First Appellate District,Division 5 held that Defendant personally inflicted great bodily injury,within the meaning of section 12022.7, subdivision (a), "in thecommission" of the crime of evading a peace officer and driving in thedirection opposite to traffic, pursuant to section 2800.4. The defendantinjured the victim while fleeing from a pursuing officer and/or attemptingto evade that officer, and later during that same evasion, drove in thewrong direction. Appellant contended that the great bodily injuryenhancement should not apply to the section 2800.4 offense, since thevictim was injured prior to appellant driving in the wrong direction.

11. Hale v. Superior Court (2014) 225 Cal.App.4th 268, the Fourth District,Division 3 held that a great bodily injury enhancements pursuant to section12022.7, subdivision (a), may not be imposed where the underlyingoffense is vehicular manslaughter without gross negligence within themeaning of section 191.5, subdivision (b). Section 12022.7, subdivision(g) provides that "[t]his section shall not apply to murder ormanslaughter..." Three persons were killed in this auto accident whereappellant's blood alcohol was .15%. This court parts ways with People v.Julian (2011) 198 Cal.App.4th 1524. Division 1 of this district upheld theGBI enhancements for "surviving passengers/victims", but not for thedeceased victim, and People v. Verlinde (2002) 100 Cal.App.4th 1146, and People v. Weaver (2007) 149 Cal.App.4th 1301, 1330-1331 cast doubt onthe holding in this case. The language in section 12022.7, subdivision (g),is not ambiguous and must be followed.

12. People v. Martinez (2014) 226 Cal.App.4th 1169, the Sixth AppellateDistrict held that a great bodily injury enhancement under section 12022.7,subdivision (a) may be attached to a conviction of furnishing a controlledsubstance, even if the victim dies and the defendant is also convicted ofmurder or manslaughter. (See sec. 12022.7, subd. (g) making GBI notapplicable to murder or manslaughter.) (See similar but not directly onpoint arguments in People v. Brown (2001) 91 Cal.App.4th 256 andPeople v. Corban (2006) 138 Cal.App.4th 1111.) Evidence that thedefendant furnished drugs, which the recipient ingested, causing her death,was sufficient to find that defendant caused great bodily injury undersection 12022.7, even though victim ingested the drugs of her ownvolition. The defendant’s admission that he furnished controlledsubstance to a second recipient was adequately corroborated by video

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footage showing something being passed around among the defendant andboth recipients, and by eyewitness testimony that the defendant passed thesubstance to the first recipient, who may have passed it to second recipientduring a club visit by the defendant and both recipients.

13. People v. Elder (2014) 227 Cal.App.4th 411, the Third Appellate Districtheld that where the defendant was found guilty of kidnapping for robbery,and assault with a deadly weapon, he was also liable for a GBIenhancement within the meaning of section 12022.7, subdivision (a)where the injury to the victims finger occurred when the victim was tryingto prevent the defendant’s escape. This court held that the defendant"personally inflicted" the injury, and was not just the proximate cause ofthe victim's injury. (See People v. Warwick (2010) 182 Cal.App.4th 788,793.) The defendant’s action was a direct cause of the injury sustained bythe victim, because that injury was inflicted as the victim resisted thecommission of the charged crimes and during his attempt to restraindefendant. For purposes of GBI enhancement, the injury occurred "in thecommission" of the section 245 offense, even if the elements of theoffense were completed before the escape attempt during which the injuryoccurred. (See People v. Jones (2001) 25 Cal.4th 98, 107-110.)

14. People v. Cook (2015) 60 Cal.4th 922, the California Supreme Courtoverruled the Court of Appeal, and found that where a defendant issentenced for the gross vehicular manslaughter of one victim, his sentencemay not be enhanced under section 12022.7, subdivision (a) based on greatbodily injury to other victims. The high court indicates that section12022.7, subdivision (g) "means what it says," that the enhancementprovision "shall not apply to murder or manslaughter." The courtoverruled People v. Verlinde (2002) 100 Cal.App.4th 1146; People v.Julian (2011) 198 Cal.App.4th 1524; and People v. Weaver (2007) 149Cal.App.4th 1301, to the extent that they are inconsistent with thisopinion.

15. People v. Woods (2015) 241 Cal.App.4th 461, the Fourth AppellateDistrict, Division 1 held that the trial court erred in failing to instruct thejury with lesser included offenses of nonforcible oral copulation with aminor, section 288a, subdivision (b)(1), with respect to charges of forcibleoral copulation of a minor over the age of 14, section 288a, subdivision(c)(2)(A), and forcible oral copulation in concert of a minor over the ageof 14. The ca found that the error was prejudicial where there was areasonable probability that jury would have found the defendant guilty ofthe lesser offenses, based on evidence that the victim considered thedefendant her boyfriend. Unlawful intercourse with a minor (statutoryrape), section 261.5, subdivision (a), is not a lesser included offense of thesubstantive offense of forcible rape, even if the accusatory pleading

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alleges, for purposes of the One Strike Law, that the victim was a minor. Additionally, there is sufficient evidence in this case of great bodily injuryunder section 12022.7, subdivision (a) as a result of the minor, who had anabortion. (See People v. Cross (2008) 45 Cal.4th 58, 63, 65-66; People v. Menses (2011) 193 Cal.App.4th 1087, 1091.

R. PENAL CODE SECTION 12022.7, SUBDIVISION (b)

1. People v. Galvan (2008) 168 Cal.App.4th 846, the Fourth AppellateDistrict, Division 2 held that, consistent with People v. Tokash (2000) 79Cal.App.4th 1373, section 12022.7, subdivision (b)’s enhancement forpersonally causing great bodily injury causing victim “to become comatosedue to brain injury or to suffer paralysis of a permanent nature” applieswhether state of coma is permanent or not.

2. People v. Delgado (2013) 213 Cal.App.4th 660, the Third AppellateDistrict held that pursuant to the language of section 12022.7, subdivision(b), there was insufficient evidence to find the enhancement true. It wasnot established that the defendant's conduct which caused the braindamage to the victim, also caused the victim to become comatose. (Peoplev. Galvan (2008) 168 Cal.App.4th 846.)

3. People v. Cunningham (2016) 244 Cal.App.4th 1049, the Fourth AppellateDistrict, Division 2 held that Evidence that victim, whom defendant struckthree times with a mallet in the course of a robbery, was sedated toconduct surgery and relieve pain associated with use of a respirator, wassufficient to support the jury's finding that the victim was comatose forpurposes of a great bodily injury enhancement under section 12022.7subdivision (b). The Court of Appeal found that this matter was notdistinguishable from People v. Tokash (2000) 79 Cal.App.4th 1373.

S. HEALTH AND SAFETY CODE SECTION 11370.2, SUBDIVISION (a)

1. People v. Reed (2005) 129 Cal.App.4th 1281, the Third Appellate Districtheld that the enhancement within the meaning of Health and Safety Codesection 11370.2, subd. (a), does not apply when prior conviction was foran attempt to commit a qualifying offense since an attempted is separateand distinct offense from the completed crime. (See People v. White(1987) 188 Cal.App.3d 1128, 1138.)

2. People v. Newton (2010) 189 Cal.App.4th 314, the Second AppellateDistrict, Division 6 held that an enhancement under Health and SafetyCode section 11370.2, subdivision (a), may be imposed in the currentmatter even when execution of sentence on the prior convictions werestayed under section 654 in the prior proceeding. In the current matter

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appellant was found guilty of two counts of sales under Health and SafetyCode section 11352. Appellant had two priors that qualified under Healthand Safety Code section 11370.2, subdivision (a), which the court foundtrue in a bifurcated proceeding. The wording of Health and Safety Codesection 11370.2, subdivision (a) requires an enhancement for a prioroffense irrespective of whether a defendant served a prior prison term.

3. People v. Edwards (2011) 195 Cal.App.4th 1051, the Fourth AppellateDistrict, Division 2 held that Health and Safety Code section 11370.2enhancements are status enhancements that can be imposed only once aspart of an aggregate sentence (People v. Williams (2004) 34 Cal.4th 397,401-402), but the legislature intended that multiple enhancements underthis section, can be imposed for the same prior convictions if there arecurrent multiple counts of conviction as to which different subdivisions ofsection 11370.2 apply; here under subdivision (a) and (c) of section11370.2. Prior prison term enhancements pursuant to section 667.5,subdivision (b) are also status enhancements that can be imposed onlyonce on an aggregate sentence.

4. People v. Beard (2012) 207 Cal.4th 936, the Third Appellate District heldthat where defendant was convicted of both a drug offense (Health & Saf.Code § 11352), and multiple sexual offenses, in two differentprosecutions, the trial court properly imposed a full three-yearenhancement pursuant to Health and Safety Code section 11370.2,subdivision (a), even though the term for the new Health and Safety Codesection 11352 was a subordinate count to a sex offense. Section 1170.1,subdivision (a), which limits "specific enhancements applicableto...subordinate offenses" to one-third of the full term, (those relating tothe crime, not the status of the defendant), does not apply where theenhancement is based on recidivism, in other words, the defendant's statusenhancement such as in this case Health and Safety Code section 11370.2.

5. People v. Oakley (2013) 216 Cal.App.4th 1241, the Third AppellateDistrict held that the trial court did not err when it added a three-yearenhancement pursuant to Health and Safety Code section 11370.2 wherethe transportation of the methamphetamine was for personal use. Theenhancement is related to the defendant's status as a repeat offender, notthe manner in which his current crime was committed. (See People v.Beard (2012) 207 Cal.App.4th 936, 942.)

T. HEALTH AND SAFETY CODE SECTIONS 11370.4 (WEIGHT) AND 11372.5,SUBDIVISION (A) (LAB FEE)

1. People v. Vega (2005) 130 Cal.App.4th 183, the Second AppellateDistrict, Division 7, held that an expert’s testimony that a representative

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sample of seized cocaine was weighed, and that the weight of the sampleresulted in an estimated weight of 41.4 kilograms for the entire quantityseized, was sufficient to establish that total weight of the quantity seizedexceeded 40 kilograms, to satisfy Health and Safety Code section 11370.4,subd. (a), where there was no contradictory evidence nor any challenge toexpert’s methodology. (See People v. Peneda (1995) 32 Cal.App.4th1022, 1031 [evidence of probability calculations was held sufficientcircumstantial evidence to up hold a weight enhancement.].) The“criminal laboratory analysis fee” provided for by Health and Safety Codesection 11372.5 does not apply to defendant convicted of conspiracy.

U. MONEY LAUNDERING ENHANCEMENT SECTION 186.10

1. People v. Athar (2005) 36 Cal.4th 396, the majority of the CaliforniaSupreme Court, over the dissent’s protestations, held that the defendant’ssentence could be enhanced within the meaning of section 186.10, subd.(c)(1)(D), was properly enhanced because the conspiracy to commit moneylaundering is punishable in the same manner as the substantive offense ofmoney laundering. As the dissent argued, appellant was not convicted ofmoney laundering, but a conspiracy to commit money laundering, and forthe enhancement to apply merely convicting appellant of the conspiracy isinsufficient to apply the enhancement.

V. BIFURCATION ISSUES

1. People v. Hernandez (2004) 33 Cal.4th 1040, the California SupremeCourt established that the defendant who was charged with a robbery forthe benefit of a criminal street gang, within the meaning of section 186.22,subd. (b)(1), under the facts of this case, which do not necessarily establishthe mental state in which the underlying offense was committed, was noterror, not to bifurcate the enhancement. (See generally People v. Calderon(1994) 9 Cal.4th 69, 72-78 [re bifurcation of prior convictionenhancements, which had previously overruled People v. Bracamonte(1981) 119 Cal.App.3d 644].) The denial of the motion to bifurcate thestreet-gang enhancement was not an abuse of discretion where evidence ofgang affiliation was also relevant to prove motive and intent behind thecharged offenses, and the evidence which was admissible to prove thegang affiliation, but would have been inadmissible at trial solely on thecharged offenses was not particularly inflammatory. The High Courtfound that if there was a request for a limiting instruction on the proper useof the gang enhancement it should be given, but given the fact that nonewas requested in this case, it was not error, and the danger that the jurywould use such evidence improperly was not so great as to impose uponcourt a duty to give the instruction sua sponte.

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2. People v. Ramos (2004) 121 Cal.App.4th 1194, the Second AppellateDistrict, Division 3, held that the court erroneously imposed a 15-yearenhancement under section 186.22, subd. (b)(5), rather than requiringservice of a 15-year minimum eligible parole date, and also erroneouslyimposed a consecutive subordinate term under section 1170.1, subd. (a),which does not apply to indeterminate sentences. (See People v. Felix(2000) 22 Cal.4th 651, 659; People v. Mason (2002) 96 Cal.App.4th 1,15.)

3. People v. Ruiloba (2005) 131 Cal.App.4th 674, the Third AppellateDistrict held that a recording of a telephone conversation in which thedefendant said he was not a “predator” because his sexual relationshipwith the victim, a minor at the time, “developed over time . . . and overlove” sufficiently corroborated the victim’s allegations to satisfy section803, subd. (g), which allows the prosecution of otherwise time-barredchild molestation charges within one year of filing of police report ifallegation is corroborated. Additionally, the Court of Appeal held that thedefendant is not entitled to a bifurcated trial on sufficiency of allegedcorroborating evidence.

4. People v. Burch (2007) 143 Cal.App.4th 447, the Fourth AppellateDistrict, Division 1 held, primarily based on the holding of People v.Calderon (1994) 9 Cal.4th 69, that bifurcation of a prior-convictionallegation was not required once evidence of the convictions wasintroduced to impeach defendant’s testimony. Imposition of upper prisonterm, even post Apprendi and Cunningham did not violate appellant’s rightto trial by jury where trial court found that the defendant’s priorconvictions were a sufficient basis for its decision.

5. People v. Garcia (2016) 244 Cal.App.4th 1349, the Fourth AppellateDistrict, Division 1 held that the trial court did not abuse its discretion infailing to bifurcate the gang allegation under section 186.22, subdivision(b)(1). (People v. Hernandez (2004) 33 Cal.4th 1040, 1049-1050 [if thegang evidence is admissible at the guilt phase, any inference of prejudicewould be dispelled, and bifurcation is not necessary].)

W. SECTION 20001, SUBDIVISION (C)

1. People v. Calhoun (2007) 40 Cal.4th 398, the California Supreme Courtheld that where the defendant is convicted of gross vehicular manslaughteras an aider and abettor, he may be subject to an enhancement underVehicle Code section 20001, subdivision (c) for fleeing the scene. Anupper term sentence may be imposed based on a “multiple victims”aggravating factor where the victims are named in separate counts. Basedon the aforementioned issue of multiple victims, this rule does not

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implicate Cunningham v. California (2007) 549 U.S. 270 [127 S.Ct. 856,166 L.Ed.2d 856.]

2. People v. Nordberg (2010) 189 Cal.App.4th 1228, the Second AppellateDistrict, Division 2 held that the trial court erred in failing to instruct thejury that to find true an enhancement for leaving the scene of a vehicularaccident (Veh. Code § 20002, subd. (c)), the defendant had to haveknowledge she had been in an accident resulting in injury to someone, orshe knew the accident was of such a nature it was reasonably likely to haveresulted in injury to another person. The failure to instruct the jury on anelement of a sentencing enhancement allegation violates the federalconstitutional right to due process and a jury trial. (See People v. Black(2007) 41 Cal.4th 799, 811; People v. Sengpadychith (2001) 26 Cal.4th316, 326.) This error was harmless beyond a reasonable doubt where theprosecution's evidence and the defendant's own testimony unequivocallyestablished the defendant knew the accident was of such a nature that itwas probable another person had been injured.

3. People v. Xinos (2011) 192 Cal.App.4th 637, the Sixth Appellate Districtheld that Courtney's Law (§ 20001, subd. (c)), enhancing sentence forvehicular manslaughter when a defendant flees the scene, after committinga vehicular manslaughter, supposedly to avoid destruction of evidence (ofhis blood alcohol level), does not require proof that defendant acted withthe purpose of avoiding observation or arrest.

4. People v. Vela (2012) 205 Cal.App.4th 942, the Third Appellate Districtheld that Vehicle Code section 20001, subdivision (c), which is theenhancement for hit-and-run in a felony drunk-driving case (see People v.Calhoun (2007) 40 Cal.4th 398; People v. Nordberg (2010) 189Cal.App.4th 1228), was supported by sufficient evidence that thedefendant hit a wall and stopped, then started to walk away from theaccident scene so that officer had to detain her.

X. SECTION 213, SUBDIVISION (a)(1)(A) IS AN IN CONCERTENHANCEMENT AND NOT A SENTENCING FACTOR

1. In re Jonathan T. (2008) 166 Cal.App.4th 474, the Fourth AppellateDistrict, Division 2 held that a robbery in concert under section 213,subdivision (a)(1)(A) is an offense distinct from robbery under section213, subdivision (a)(1)(B), so the “in concert” element must be pled andproven, not merely treated as a sentencing factor. (See In re Jesse P.(1992) 3 Cal.App.4th 1177, 1182.) Where the minor admitted the petitionaccusing him of robbery, which carries a maximum confinement term ofsix years under section 213, subdivision (a)(1)(B), the order setting themaximum term of confinement at more than six years, based on

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dispositional finding that the robbery was committed in concert, violatedthe minor’s right to due process notwithstanding petitioner’s assertion thatthe maximum confinement term would be nine years.

Y. A PENALTY PROVISION OR AN ENHANCEMENT CAN BE RETRIEDAFTER A HUNG JURY, BY ITSELF, AND NOT WITH THE UNDERLYINGSUBSTANTIVE OFFENSE AND IS NOT BARRED BY THE FEDERALDOUBLE JEOPARDY CLAUSE OR PENAL CODE SECTION 1023

1. People v. Anderson (2009) 47 Cal.4th 92, the California Supreme Courtheld that where a jury has convicted a defendant of an offense, in this casewithin section 667.61 (one strike), but deadlocked on an enhanced penaltyallegation, the federal constitutional double jeopardy clause does notprevent retrial on those mistried enhancements, nor does the state statutoryprovision against double jeopardy of section 1023. Furthermore, thepenalty provision may be retried as to the deadlocked penalty provisionsalone, and not with the underlying offense.

2. People v. Carbajal (2013) 56 Cal.4th 521, the California Supreme Courtheld that where the defendant was tried for sexually molesting twovictims, and there was a multiple victim allegation under section 667.61(the "One Strike" law). The jury did not have authority to return anyverdict on multiple-victim "One Strike" allegation after it found defendantguilty on some counts involving a single victim but deadlocked on allcounts involving the other alleged victim. Neither the first jury’s originalfinding that the allegation was true, nor its subsequent finding that theallegation was not true after further deliberations had been ordered by thecourt, was binding, and a second trial on the allegation following a mistraldid not constitute double jeopardy. Section 1161 provides that when thereis a verdict of conviction, in which it appears to the Court that the juryhave mistaken the law, the Court may explain the reason for hat opinionand direct the jury to reconsider their verdict, and if, after thereconsideration, they return the same verdict, it must be entered; but after averdict of acquittal, the jury cannot reconsider it. After hearing the verdictfor the second time, the court should have, within the meaning of sections1147 and 1149, proper adherence to the statutory scheme would have ledto the jury's declaration of a verdict. Here the trial court did not attempt toclarify an unintelligible verdict. A verdict of true or not true on thespecial allegation would have been inconsistent with the jury's findings ofthe substantive counts, but it would not have been unintelligible in the waythat a finding of guilt and acquittal on the same count is. In sum, once thejury deadlocked on the counts involving one of the alleged victims, theycould not have returned a verdict on the penalty allegation, and doublejeopardy thus did not bar retrial on that allegation.

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3. People v. Sullivan (2013) 217 Cal.App.4th 242, the Second AppellateDistrict, Division 8 held that the double jeopardy bars retrial on asubstantive offense, when jurors have reached a verdict on that offense,here an assault, but deadlocked on the great bodily injury enhancement,when the court fails to take a verdict on the substantive offense if thedefendant does not expressly or impliedly consent. (Stanley v. SuperiorCourt (2012) 206 Cal.App.4th 265, 280; see also Stone v. Superior Court(1982) 31 Cal.3d 503, 516.) The trial attorney's failure to plead doublejeopardy, after the trial court erroneously ruled that it could not accept averdict that jurors said they had reached on the substantive offense wherethere was no verdict on the enhancement, and discharged jurors withoutdefendant’s consent, (see People v. Anderson (2009) 47 Cal.4th 92, 102-104, 121 [the court should receive the verdict on the substantive count anddeclare a mistrial on the enhancement only]), constituted ineffectiveassistance of counsel, remediable on direct appeal, because there could nothave been a reasonable tactical explanation for not pleading doublejeopardy. (In re Wilson (1992) 3 Cal.4th 945, 950.)

Z. A GRANT OF A MOTION FOR A NEW TRIAL BASED ON A PENALTYALLEGATION/FACTOR IS NOT BARRED BY THE FEDERAL DOUBLEJEOPARDY CLAUSE OR PENAL CODE SECTION 1023

1. Porter v. Superior Court (2009) 47 Cal.4th 125, the California SupremeCourt held that where a jury convicted the defendant of several offensesand found all attached penalty allegations or factors to be true, but the trialcourt granted a new trial motion under section 1181 on some of theenhanced penalty factors/allegations. Such an order could not beconstrued as an express or implied acquittal, and as a result, it did nottrigger constitutional double jeopardy protections, nor did the statestatutory provision against double jeopardy (§ 1023), bar retrial. Thescope of the retrial is limited to those sentencing allegations alone. Thecourt reasoned that the judge is acting as the “13th juror” in granting hemotion for a new trial, and it is the equivalent of a juror who is a “holdout”for an acquittal. In such a case, said ruling is not an acquittal, and does notbar retrial on double jeopardy grounds, but is similar to a mistrial or hungjury, where the issue can be retried. (See People v. Serrato (1973) 9Cal.3d 753, 761; see also People v. Lagunas (1994) 8 Cal.4th 1030,1038-1039.)

AA. THE SUBSTANTIVE COUNT ALONE AND NOT THE ENHANCEMENTDETERMINES WHETHER THE PRINCIPAL COUNT IS DETERMINATE ORINDETERMINATE AND IF THE SUBORDINATE COUNT IS FULL TERMOR ONE-THIRD THE MIDDLE TERM

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1. People v. Sanders (2010) 189 Cal.App.4th 543, the Second AppellateDistrict, Division 8 held that, in a case where the defendant was convictedof two counts of attempted murder, without premeditation, and anenhancement was found true under section 12022.53, subdivision (d) (the25-L enhancement), it is clear that the tail does not wag the dog; in otherwords, the enhancement was not part of the determinate sentence of 7years for the attempted murder; as a result, the sentence imposed onsecond count, the subordinate count, should have been one-third themiddle term, and court erred in imposing a fully consecutive sentence forthat count. (See People v. Montes (2003) 31 Cal.4th 350 [generally, thesubstantive count determines if it is a determinate or indeterminate term,without considering the enhancement].)

BB. MISDEMEANOR BRANDISHING BECOMES A FELONY WHENCOMBINED WITH A HATE CRIME AND CAN BE ELEVATED TO ASERIOUS FELONY, CONSTITUTING A STRIKE WHEN A DANGEROUSOR DEADLY WEAPON IS USED WITHOUT VIOLATING THE RULEAGAINST BOOTSTRAPPING

1. People v. Morgan (2011) 194 Cal.App.4th 79, the Fourth AppellateDistrict, Division 1 held that the defendant suffered a prior serious felonyfor brandishing a hammer (§ 417, subd. (a)), when it is elevated from amisdemeanor to a felony, do to appellant’s conduct for a hate crime undersection 422.7, where the brandishing was committed with a dangerous ordeadly weapon, in this case a hammer. The rule against “bootstrapping”(see People v. Montes (2003) 31 Cal.4th 350; People v. Briceno (2004) 34Cal.4th 451 [using the same gang enhancement twice is not permitted]),does not apply where the conduct that elevates the crime from amisdemeanor to a felony, here the hate crime, differs from that whichelevates the felony to a serious felony, and therefore a strike, which in thiscase is the use of a deadly weapon. Therefore, People v. Ulloa (2009) 175Cal.App.4th 405, is also distinguished along with Montes and Briceno.

CC. MISDEMEANOR DUI BECOMES A FELONY WHEN THERE IS A PRIORDUI MANSLAUGHTER CONVICTION WITHOUT VIOLATING THE RULEAGAINST BOOTSTRAPPING

1. People v. Doyle (2013) 220 Cal.App.4th 1251, the Third Appellate Districtheld that this state's statutory scheme allows for the use a prior DUImanslaughter conviction to elevate a current DUI charge from amisdemeanor to a felony (see People v. Baez (2008) 167 Cal.App.4th 197,199), and to treat the current DUI charge as a strike under the ThreeStrikes law for sentencing purposes. The Court of Appeal found that this isnot a violation of impermissible bootstrapping since the Legislatureintended the use of the prior DUI manslaughter both to elevate the offense

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to a felony and to serve as a strike. (See People v. Briceno (2004) 34Cal.4th 451, 464-465.)

DD. PRIOR PRISON TERMS UNDER SECTION 667.5, SUBDIVISION (a)

1. People v. Brewer (2014) 225 Cal.App.4th 98, the First Appellate District,Division 5 held that a sentence enhancement imposed pursuant to section667.5, subdivision (a) based a violent felony prior enhancement, and acurrent offense which is classified as violent, the 3-year enhancement isimposed for those prison terms that have not "washed out", and the sameenhancements which qualify under section 667.5, subdivision (b), must bestayed and not stricken. (Cf. People v. Gonzalez (2008) 43 Cal.4th 1118,1122-1123, 1129.)

EE. SUBSTITUTION OF UNCHARGED ENHANCEMENT WHEN THECHARGED ENHANCEMENT BECOMES INAPPLICABLE ORUNSUPPORTABLE

1. People v. Fialho (2014) 229 Cal.App.4th 1389, the Sixth AppellateDistrict held that the trial court did not err when it sentenced the defendantto the gun enhancement within the meaning of section 12022.5,subdivision (a), after the jury found him not guilty of murder andattempted murder, but guilty of voluntary manslaughter and attemptedvoluntary manslaughter. Jury made the finding that the defendantpersonally and intentionally discharged a firearm within the meaning ofsection 12022.53, subdivision (d), and proximately caused death and greatbodily injury. Since section 12022.53, subdivision (d) does not apply tovoluntary manslaughter or attempted voluntary manslaughter, the trialcourt was permitted to impose enhancements for personal use of a firearmunder section 12022.5, subdivision (a), even though there were no section12022.5, subdivision (a) allegations in the information. Even thoughsection 1170.1, subdivision (e) states that all enhancements must be plead,it does not preclude the imposition of lesser included enhancements whenthe charged enhancement is either factually unsupported or inapplicable tothe offense of conviction. (See People v. Majors (1998) 18 Cal.4th 385,410; see also People v. Strickland (1974) 11 Cal.3d 946.)

7. PROVING A PRIOR WITH AN ADOPTIVE ADMISSION

1. People v. Thoma (2007) 150 Cal.App.4th 1096, the Second AppellateDistrict, Division 6, after remand from the California Supreme Court,where the Court of Appeal was ordered to follow People v. Trujillo (2006)40 Cal.4th 165, the Court of Appeal found that the prior conviction fordrunk driving with bodily injury did not qualify as a “strike” under theThree Strikes Law where prior conviction was based on a plea. The courtcould not rely on an adoptive admission within the meaning of Evidence

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Code section 1221, theoretically made after the plea, to find the strikeprior true. The defendant did not, as part of plea, stipulate as to extent ofthe victim’s injuries and was not bound by court’s characterization ofthem. Furthermore, the police officer’s hearsay testimony at thepreliminary hearing characterizing those injuries, was inadmissible forpurpose of determining whether ensuing conviction was a strike. InTrujillo, the Supreme Court indicated that the defendant’s statement in thepost-plea probation officer’s report does not describe the nature of thecrime of which he was convicted and cannot be used to prove that the priorconviction was for a serious felony.

8. IS AN ASSAULT WITH A DEADLY WEAPON A PRIOR?

1. People v. Baneulos (2005) 130 Cal.App.4th 601, the Second AppellateDistrict, Division 6 held that an assault by means likely to cause greatbodily injury is not a serious felony within meaning of Three-Strikes Lawor five-year enhancement statute unless the offense involves the use of adeadly weapon or actually results in the personal infliction of great bodilyinjury. The abstract of judgment reflecting a conviction for assault “GBIW/DEADLY WEAPON,” without saying whether defendant personallyused a deadly weapon or personally inflicted great bodily injury, failed toestablish that conviction was for a serious felony. The Court of Appealacknowledged that Division 5 of the Second Appellant District came to adifferent result in People v. Luna (2003) 113 Cal.App.4th 395, howeverthis court held that it cannot be confident that the abbreviated descriptionof a statute prohibiting two types of criminal conduct was anything morethan that particular court clerk’s shorthand method of referring to thestatute under which appellant was convicted. The Court of Appeal alsoconcurred with People v. Haykel (2002) 96 Cal.App.4th 146, 148-149;People v. Winters (2001) 93 Cal.App.4th 273, 280; and Williams v.Superior Court (2001) 92 Cal.App.4th 612, 622-624 when they indicatedthat even under the amended law post Proposition 21, a conviction ofassault by means likely to cause great bodily injury is not a serious felonyunless it also involves the use of a deadly weapon or actually results in thepersonal infliction of great bodily injury. Citing People v. Cortez (1999)73 Cal.App.4th 276, 283, the court found that a plea to a criminal statuepunishing alternative types of conduct is insufficient to prove that thedefendant committed each type of conduct; and since that cannot beestablished in this case, it cannot be found to be a serious felony.

9. JURY TRIAL ON OUT OF STATE PRIORS

1. People v. McGee (2006) 38 Cal.4th 682, the California Supreme Courtheld, in this 5-2 opinion, that in sentencing proceedings where thedefendant had two prior convictions for robbery under Nevada law, andthe elements of the Nevada crime differed from the elements of the

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California crime, in that the Nevada convictions did not qualify on theirface as convictions for purposes of sentence enhancement underCalifornia’s three strikes law, the trial court did not violate the defendant’sfederal constitutional right to jury trial in examining the record of the priorrobbery convictions to determine whether each of the offenses constituteda conviction of a serious felony. The dissent contends, that Apprendi v.New Jersey (2000) 530 U.S. 466, requires that the existence of any factincreasing a defendant’s sentence beyond the statutory minimum bedetermined by the jury base on proof beyond a reasonable doubt. Apprendi indicates that it decision in Almendarez-Torres v. United States(1998) 523 U.S. 224, which found an exception to this rule to prove “factsof a prior conviction,” is arguably incorrect. (Apprendi, supra, 530 U.S. atp. 489.) Given this statement, the dissent indicates that Apprendi shouldbe construed narrowly, rather than in the expansive manner in which itcontinues to interpret the law. Given the fact that the defendant neveradmitted the conduct underlying his Nevada convictions that are nowbeing used to increase his sentence, he should have been given a right to ajury trial on the issue. I predict the United States Supreme Court will grantcertiorari either in this case or a related matter.

2. People v. Palmer (2006) 142 Cal.App.4th 724, the Third AppellateDistrict held that it was proper to enhance the defendant’s sentence forDUI with his previous Nevada DUI convictions even though he did nothave a right to a jury trial in the Nevada proceedings since the priors wereclassified as petty offenses. This court refused to follow United States v.Tighe (9th Cir. 2001) 266 F.3d 1187.

3. People v. Nguyen (2009) 46 Cal.4th 107, the California Supreme Courtheld, that a contested juvenile adjudication, even though the minor was notafforded a jury trial, it is still a prior conviction, and as a result can be usedas a strike to increase appellant’s sentence. The Three Strikes Law doesnot violate the U.S. Constitution, or the dictates of Apprendi orCunningham, insofar as it increases the maximum sentence for an adultfelony offense upon proof that the defendant has suffered one or morequalifying “prior felony convictions,” a term that specifically includescertain prior criminal adjudications sustained under the juvenile court lawwhile the defendant was a minor, even though there was no right to a jurytrial in the juvenile proceeding. The court distinguished between a rightto a jury trial for a current offense, and the lack of a jury trial for a prioroffense used to enhance appellant’s sentence.

4. People v. Skiles (2011) 51 Cal.4th 1178, the California Supreme Courtheld that the Alabama manslaughter conviction was proved to be a strikeby sufficient evidence, within the meaning of the Secondary EvidenceRule (Evid. Code §§1152-1523). This evidentiary rule does not excusecompliance with Evidence Code section 1401 requiring authentication. A

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writing can be authenticated by circumstantial evidence and its contents.(See People v. Gibson (2001) 90 Cal.App.4th 371, 383.) A faxed copy ofthe indictment page alone would have been insufficient, but when it wascouple with certified copies of booking documents and fingerprints, inaddition to a certified copy of a relevant minute order, and plea agreement,in addition to the copy of the original certified copy of the indictment, allcombined established sufficient authentication for the admission of thefaxed copies.

10. FEDERAL AND STATE DOUBLE JEOPARDY AND RELATED ISSUES

1. People v. Lopez (2004) 119 Cal.App.4th 132, the Second Appellate District,Division 6 held that section 654 precludes separate sentences for unlawfulpossession of a firearm and unlawful possession of the ammunition inside thefirearm. (Cf. People v. Miller (1977) 18 Cal.3d 873, 887 [654 applies when thereis an indivisible course of conduct].)

2. People v. Williams (2004) 120 Cal.App.4th 209, the Fourth Appellate District,Division 2 held, contrary to the well reasoned opinion in People v. Garcia (2003)107 Cal.App.4th 1159, wherein the Court of Appeal held that a defendant couldonly be found guilty of one count of evading, and not for as many counts asnumber of police officers giving chase, this Court of Appeal found that a violationof section 2800.2, is a crime of violence for purposes of the multiple-victimexception to section 654, and therefore, a defendant who violated section 2800.2while fleeing from the scene of the robbery was properly convicted of bothcrimes. The Court of Appeal did find that the violation of Vehicle Code section10851, should have been stayed, when imposing a penalty of a violation of section2800.2. As a result, where the defendant is convicted of multiple offenses, andreceives a consecutive sentence in the original sentencing hearing, one of which isfor an offense for which the punishment is prohibited under section 654, theprosecution is entitled to a remand so that court may exercise its discretion toimpose a consecutive term for the offense for which the defendant was properlyconvicted and had previously received a concurrent term. The prosecution did nothave to cross appeal, since the original sentence was unauthorized. On remandthe trial court has the authority to modify all aspects of the sentence. (People v.Castaneda (1999) 75 Cal.App.4th 611, 613-614.)

3. People v. Ausbie (2004) 123 Cal.App.4th 855, the Fifth Appellate District heldthat when there are separate victims, an enhancement within the meaning of12022.7 can be applied to each victim.

4. People v. Britt (2004) 32 Cal.4th 944, the California Supreme Court held that thedefendant, a registered sex offender who failed to notify law enforcement agenciesof his change of address when he moved from one county to another cannot beprosecuted in one county for the failure to notify law enforcement that he wasleaving the county, and then subsequently prosecuted separately in the other

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county for the failure to register in that county when the person took up residencethere. An appellant who fails to notify authorities in the county of his formerresidence of his departure, and who also fails to notify authorities in the county ofhis new residence upon his arrival, may be charged with both offenses in eithercounty, but when the prosecution knows or should know of both offenses,appellant may be prosecuted for them only once (see Kellett v. Superior Court(1966) 63 Cal.2d 822), and may be sentenced only once for one or the otherconvictions within the meaning of section 654.

5. People v. Davey (2004) 122 Cal.App.4th 1548, the First Appellate District,Division 2 held that a defendant who commits a single act of indecent exposurewithin the meaning of section 314.1, and the act is witnessed by 2 minorssimultaneously, can only be sentenced on one count pursuant to section 654. (Cf.People v. Hall (2000) 83 Cal.App.4th 1084, 1088-1090 [can punish multipletimes for a single episode of violent conduct].) The multiple victim exception tosection 654 does not apply as the act is not one of violence, nor is there a separatecriminal objective to the single act.

6. People v. Oates (2004) 32 Cal.4th 1048, the California Supreme Court held thatsection 12022.53, subd. (d), the 25 to life enhancement for each crime where thedefendant personally discharged and injured another, but which subd. (f) bars theimposition of more than one such penalty “for each crime,” requires imposition offive enhancements on a defendant convicted of five counts of premeditatedattempted murder for firing two shots into a group of five persons, injuring one ofthem. The multiple enhancements are not barred by section 654's prohibitionagainst multiple punishments for a single act or omission.

7. United States v. Patterson (9th Cir. 2004) 381 F.3d 859, the Ninth Circuit Courtof Appeal held that the validity of the defendant’s guilty plea in marijuanapossession case was in doubt under Apprendi because the number of marijuanaplants, a factor in sentencing, was not stipulated to by defendant nor found by ajury beyond a reasonable doubt, the order vacating his plea and subsequent trialdid not deprive the defendant of freedom from double jeopardy.

8. People v. Picado (2004) 123 Cal.App.4th 1216, the First Appellate District,Division 5, held that section 654's ban on multiple punishments for a single crimedoes not bar consecutive sentences where the defendant was convicted of assaulton five separate victims in a single incident (see People v. Miller (1977) 18 Cal.3d873, 885; see also People v. Solis (2001) 90 Cal.App.4th 1002, even if multipleconvictions were based on his being an aider and abettor. (See People v. Hall(2000) 83 Cal.App.4th 1084, 1092-1093.)

9. People v. Cobb (2004) 124 Cal.App.4th 1051, the Second Appellate District,Division 8 held that where the defendant and two other persons simultaneouslyshot and killed a single victim, resulting in a jury findings that the defendant waspersonally armed, and that he participated in a crime in which another principal

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was armed, the defendant was subject to single enhancement pursuant to section12022.53, subd. (f). The court erred by imposing two enhancements as the matterwas not within the meaning of People v. Oates (2004) 32 Cal.4th 1048, whereinthe Supreme Court found that multiple enhancements can be imposed when thereis more than one victim.

10. Sons v. Superior Court (2004) 125 Cal.App.4th 110, the Fifth Appellate District,after an analysis of People v. Batts (2003) 30 Cal.4th 660, wherein the CaliforniaSupreme Court had held that under certain circumstances, wherein the prosecutioncommitted intentional misconduct, in order to trigger a mistrial, they were barredby the double jeopardy clause of the state and federal constitutions, held that thefacts did not warrant such a remedy in this case. Here, the prosecutor’s failure todisclose material, exculpatory evidence in first trial, even if knowing and willful,does not bar retrial following a successful habeas corpus petition under doublejeopardy clauses of the federal and state constitutions and constitutionalrequirements of due process of law.

11. Smith v. Massachusetts (2005) 543 U.S. 462 [160 L.Ed.2d 914, 125 S.Ct.1129],the United States Supreme Court held that where the court granted the defendant’smotion for acquittal after the prosecution rested (similar to § 1118), on one count,based on the insufficiency of the evidence, but then reconsidered and altered itsruling prior to the submission of the case to the jury, reinstating that count, saidruling violated the Double Jeopardy Clause. (See United States v. Martin LinenSupply Co. (1977) 430 U.S. 564, 573 [51 L.Ed.2d 642, 97 S.Ct. 1349].) Where,after an unqualified mid-trial acquittal on one count, wherein the trial hasproceeded to the defendant’s introduction of evidence on the remaining counts,the acquittal must be treated as final unless the availability of reconsideration hasbeen plainly established by a pre-existing state rule, or case authority, expresslyapplicable to mid-trial rulings on the sufficiency of the evidence.

12. People v. Flores (2005) 129 Cal.App.4th 1401, the Fourth Appellate District,Division 3 held that the separate punishments for murder and for conspiracy tobatter a separate victim, wherein the murder occurred during the course of theconspiracy, do not violate section 654's ban on multiple punishments for the samecrime, since the murder was not part of the conspiracy. (See In re Cruz (1966) 64Cal.2d 178, 181 [if the conspiracy had an objective apart from an offense forwhich the defendant is punished, he may be properly sentenced for the conspiracyas well].) The enhancement under section 12022.53 and a separate sentence forcarrying a gun in the carrying a firearm while an active participant in a criminalstreet gang did not violate section 654 where the evidence established that thecrime for which the enhancement was imposed and the gun possession offenseinvolved separate conduct and separate intents. The court acknowledged thatthere is a split of authority as to whether section 654 applies to enhancements, (seePeople v. Rodriguez (1988) 206 Cal.App.3d 517, 519 [does not apply]; People v.Moringlane (1982) 127 Cal.App.3d 811, 817-818; People v. Arndt (1999) 76Cal.App.4th 387 [§ 654 does apply to enhancements that go to the nature of the

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offense and not to the status of the offender]; see also People v. Akins (1997) 56Cal.App.4th 331; People v. Palacios (2005) 126 Cal.App.4th 859 [§ 654 doesapply to enhancements), but determined that on these facts, that it did not.

13. People v. Martin (2005) 133 Cal.App.4th 776, the Second Appellate District,Division 2 held that separate sentences for resisting arrest (§ 69) and battery withinjury on a peace officer (§ 243, subd. (c)(2)), does not violate section 654, wherethe multiple victim exception comes into play. (See People v. Solis (2001) 90Cal.App.4th 1002, 1023.) Here, the defendant resisted arrest by officers otherthan the one who is battered, and since battery on a police officer is a crime ofviolence that qualifies for the multiple victim exception, the court did not err inimposing the two crimes concurrent to each other rather than applying section654, even though it was during the same incident. If the crimes had not beenclassified as crimes of violence, then the provisions of section 654 would havebeen applicable.

14. People v. Vasquez (REVIEW DISMISSED); FORMERLY AT : (2006) 136Cal.App.4th 898, the Second Appellate District, Division 2 held that it was not errnot to stay imposition of sentence, within the meaning of section 654 for assault,where the defendant was convicted of first degree burglary as well as assault andattempted rape; since there were two occupants of the burgled residence inaddition to the victim of the assault.

15. People v. Le (2006) 136 Cal.App.4th 925, the Sixth Appellate District held thatseparate sentences for burglary and robbery violated the section 654 ban onmultiple punishments for same crime where both offenses were committed with asingle intent (see People v. Palmore (2000) 79 Cal.App.4th 1290, 1297), to stealfrom a store, and force was used only against the store manager and only in astruggle over the store’s merchandise; therefore, the multiple victim exception tosection 654 was not applicable. (See People v. Guzman (1996) 45 Cal.App.4th1023, 1028.) The section 654 error was an unauthorized sentence within themeaning of People v. Scott (1994) 9 Cal.4th 331, 354, and therefore the failure toobject did not waive the issue. Restitution and parole revocation fines are“punishment” within meaning of section 654; therefore, the lower court erred intreating the robbery and burglary convictions as separate in calculating such fines. Where the trial court indicated its intent to impose the minimum parole revocationand restitution fines and erroneously calculated such minimums, the Court ofAppeal can reduce such fines to properly calculated minimum even though thetrial court would have had discretion to impose larger fines.

16. People v. Brown (2006) 140 Cal.App.4th 76, on rehearing, the Third AppellateDistrict held that the double jeopardy provisions of state and federal constitutions,and provisions of section 654, subd. (a), barring multiple prosecutions for thesame act or omission, apply only to successive prosecutions and not to acontinued prosecution on remaining charges after a jury is partially unable toreach a verdict. (See Richardson v. United States (1984) 568 U.S. 317, 323 [82

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L.Ed.2d 242, 104 S.Ct. 3081].) Constitutional and statutory protections againstdouble jeopardy do not bar retrial of the defendant, who was acquitted of elderabuse, to once again be tried on charges of assault and battery as to which jurydeadlocked, where acquittal of the elderly abuse charge may have been based onthe failure to prove that the defendant knew or reasonably should have known thatthe victim was over the age of 65 years.

17. People v. Reed (2006) 38 Cal.4th 1224, the California Supreme Court held thatwhere the defendant was charged with and convicted of being a felon inpossession of a firearm (§ 12021, subd. (a)(1)), carrying a concealed firearm(§ 12025, subd. (a)), and carrying a loaded firearm while in a public place(§ 21031, subd. (a)), all arising out of the same act, and where the informationalleged as to all three offenses that the defendant was a convicted felon so that, ascharged, he could not commit the crimes of carrying a concealed firearm andcarrying a loaded firearm while in a public place without also being a felon inpossession of a firearm, section 954 (see also People v. Ortega (1998) 19 Cal.4th686, 692; People v. Montoya (2004) 33 Cal.4th 1031, 1034), which prohibitsconvictions based on necessarily included offenses, did not prevent thedefendant’s conviction of all three charges. The courts should consider thestatutory elements and accusatory pleading in deciding whether a defendantreceived notice, and therefore may be convicted, of an “uncharged” crime, but,only the statutory elements in deciding whether a defendant may be convicted ofmultiple “charged” crimes.

18. People v. Brown (2007) 148 Cal.App.4th 911, the Fourth Appellate District,Division 1 held that the court did not violate double-punishment prohibition ofsection 654 when it imposed sentence on convictions for attempted robbery,assault with a deadly weapon, and attempted murder arising out of a single event. There was evidence that the various offenses did not arise from single objective ofrobbing victim but rather separate motives that were not derived at the same time,to rob victim, then to hurt victim after robbery attempt failed, then to kill victimby shooting him. (See People v. Latimer (1993) 5 Cal.4th 1203, 1211-1212.) Since there was more than one objective, the section did not violate the multiplepunishment rule of section 654 (see People v. Beamon (1973) 8 Cal.3d 625,636-637), by imposing firearm use enhancements on both defendant’s attemptedmurder and attempted robbery convictions based on same discharge of firearmwhere it concluded that use of gun in attempting to rob victim had a differentobjective than later use of gun to attempt to kill victim.

19. Porter v. Superior Court (2007) 148 Cal.App.4th 889, the Sixth Appellate Districtheld that where the jury found the defendant guilty of two counts of attemptedmurder and made true findings as to various special allegations, including that thecrimes were premeditated and were committed for the benefit of a street gang, andtrial court ordered a new trial (§ 1181), as to those allegations before proceedingto pronounce judgment as to the convictions and other enhancements, doublejeopardy barred retrial on the special allegations. (Brown v. Ohio (1977) 432 U.S.

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161, 166 [53 L.Ed.2d 187, 97 S.Ct. 2221] [double jeopardy bars a successive trialon an offense not charged in the original indictment once jeopardy attaches. Onecannot be tried a second time when he is found not guilty of either the greateroffense or a lesser included offense of the greater unless each requires proof of anadditional fact that the other does not].) A trial court’s granting of a motion for anew trial should not be construed as an acquittal unless the record unmistakablyindicates the trial court applied the substantial evidence test and concluded that noreasonable trier of fact could find guilt beyond a reasonable doubt. (See Hudson v.Louisiana (1981) 450 U.S. 40, 44 [67 L.Ed.2d 30, 34, 101 S.Ct. 970, 972]; Peoplev. Trevino (1985) 39 Cal.3d 667, 694-695.) Generally, the granting of a motionfor a new trial does not bar a retrial based on double jeopardy grounds. (People v.Serrato (1973) 9 Cal.3d 753, 762.) By definition, a new trial ordered by a judgeacting as a “13th juror” is not construed as an acquittal, and it is not the same asgranting a motion to dismiss pursuant to section 1118.1. Here, the doublejeopardy bar is implemented by section 1023 and the doctrine of includedoffenses. (People v. Fields (1996) 13 Cal.4th 289, 305-306.)

20. People v. Brenn (2007) 152 Cal.App.4th 166, the Fourth Appellate District,Division 3, held that here the defendant was sentenced to prison for attemptedmanslaughter and was also convicted of aggravated assault with a great bodilyinjury enhancement based on same occurrence, it was error to impose concurrentprison term for the latter offense, and at the same time say it was stayed pursuantto section 654. The proper disposition was to stay imposition of sentencepursuant to section 654. (See People v. Deloza (1998) 18 Cal.4th 585, 591-592.)

21. People v. Palacios (2007) 41 Cal.4th 720, the California Supreme Court held thata section 12022.53, subd. (d) firearm enhancements, are not limited by themultiple punishment prohibition of section 654. Appellant was convicted of onecount each of attempted murder, kidnapping for carjacking, and kidnapping forrobbery, where one shot was fired, at one victim. The court permitted theimposition of the gun use enhancement on all three counts.

22. People v. Garcia (2007) 153 Cal.App.4th 1499, the Fourth Appellate District,Division 3 held that consecutive terms for section 186.22, subd. (a) and section186.22, subd. (b) do not violate section 654's prohibition against multiplepunishments for the same crime. (See People v. Herrera (1999) 70 Cal.App.4th1456, 1468 [the intents are theoretically different for the substantive crime thanfor the enhancement]; People v. Ferraez (2003) 112 Cal.App.4th 925, 935.)

23. People v. Sloan (2007) 42 Cal.4th 110, the California Supreme Court held that anenhancement is not considered for section 654 purposes, within the meaning ofPeople v. Pearson (1986) 42 Cal.3d 351, 355 which prohibits multipleconvictions based on necessarily included offenses even if the allegation subjectsthe defendant to the possibility of additional punishment. The defendant wasconvicted of willful infliction of corporal injury on a spouse (§ 273.5, subd.(e)(1)), assault by means of force likely to produce great bodily injury (§ 245,

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subd. (a)(1)) and battery with serious bodily injury (§ 243, subd. (d)), and thegreat bodily injury enhancement within the meaning of section 12022.7, subd. (a)applied to all of the aforementioned counts. Pursuant to People v. Reed (2006) 38Cal.4th 1224, 1231, wherein the High Court held that courts should consider thestatutory elements and accusatory pleading in deciding whether a defendantreceived notice, and therefore may be convicted, of an “uncharged” crime, butonly the statutory elements in deciding whether a defendant may be convicted ofmultiple “charged” crimes, neither the ban on multiple punishment within section654, nor principles of federal double jeopardy protection, require an exceptionfrom Reed in this case simply because multiple convictions otherwise permittedunder section 954, and the legal elements test in theory might give rise toimpermissible multiple punishment in future criminal proceedings should thedefendant reoffend. Each of the assault counts can be considered a lesser includedoffense of the corporal injury offense, when the great bodily injury enhancementis taken into account. If the violation of section 273.5 is considered without thegreat bodily injury enhancement, then the assault counts are not lesser includedoffenses. The argument that improper multiple punishment might stem fromfuture use of multiple convictions under recidivist sentencing statutes, like theThree Strikes Law, raises a question that is speculative and must wait until afuture cases arises.

24. People v. Izaguirre (2007) 42 Cal.4th 126, the California Supreme Court held thatfirearm-related enhancements do not violate the right to due process nor the rightto jury trial within the meaning of Apprendi, when they are used to increasepunishment and not to elevate the seriousness of the underlying offense. Sinceenhancements are not legal elements of the offenses to which they attach, they arenot considered in defining necessarily included offenses under People v. Reed(2006) 38 Cal.4th 1224.

25. People v. Fielder (2007) 154 Cal.App.4th 712, the Fourth Appellate District,Division 1 held that a registered sex offender’s act of failing to notify authoritiesof his whereabouts on three separate occasions were separate acts for which threeseparate punishments could be imposed. (See People v. Meeks (2004) 123Cal.App.4th 695, 705-706; See also People v. Davis (2002) 102 Cal.App.4th 377.)

26. People v. Murphy (2007) 154 Cal.App.4th 979, the Third Appellate District heldthat possessing rock cocaine for sale is not a necessarily included offense ofselling the same rock under statutory elements test. (See People v. Sanchez(2001) 24 Cal.4th 983, 988; People v. Peregina-Larios (1994) 22 Cal.App.4th1522.) Possession of a controlled substance is not an essential element of thecrime of selling that substance. The defendant was properly convicted ofpossessing cocaine base for sale and of sale of cocaine base under chargingallegations test even where the information did not state whether the cocaine basereferred to in first count was the same as that referred to in second count. Wheretrial evidence showed that the substance was the same in each count, trial court

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properly stayed conviction on one count to comply with section 654 ban onmultiple punishments for same crime.

27. People v. Perry (2007) 154 Cal.App.4th 1521, the Second Appellate DistrictDivision 8, held that there was substantial evidence to establish a burglary androbbery within the meaning of People v. Estes (1983) 147 Cal.App.3d 23,considering the fact that the victim testified that he returned to his car, which hadbeen locked with closed windows, and discovered defendant inside it; thatdefendant jumped out holding victim’s car stereo in one hand and a screwdriver orice pick in the other hand, and took a fighting stance prior to running from thescene. Where the second degree burglary and the robbery of the property werepart of a single course of conduct, (People v. Latimer (1993) 5 Cal.4th 1203,1208), section 654's prohibition against multiple punishment for the same crimerequires that the burglary conviction be stayed.

28. People v. Garcia (2007) 155 Cal.App.4th 929, the Second Appellate District,Division 8 held that, section 654 was not violated where multiple persons werefired at in count 3, including the victim in count 2, and therefore the multiplevictim except to section 654 applied. The court also rejected appellant’scontention that section 654 precluded the imposition of the section 12022.53enhancement on top of the murder conviction in count 1. (See People v. Sanders(2003) 111 Cal.App.4th 1371.)

29. People v. Martinez (2007) 156 Cal.App.4th 851, the Second Appellate District,Division 6 held that the imposition of the upper term did not violate Cunningham,and was within the reaches of Black II since appellant’s priors were of increasingseriousness (rule 4.421(b)(2)), he was on parole at the time of the offense, and hehad numerous prior convictions for DUI.

30. People v. Rodriguez (2007) 157 Cal.App.4th 14, the Second Appellate District,Division 4, held that where a gang member’s single act of firearm possession bothsubjects him to a 4 year firearm enhancement under section 12022.5 and elevatesthe underlying offense to a violent felony under section 667.5, subd. (c)(8),thereby subjecting him to a 10-year gang enhancement under section 186.22,subd. (b)(1), 654's ban on multiple punishment requires the court to strike thelesser enhancement. Under the language of section 12022.53, there is anexception for section 654 that does not exist in section 12022.5 or 186.22;therefore, given the differing language of the sections, the lesser cannot beapplied, due to section 654, when the greater enhancement is imposed. Inessence, the single act of using a firearm cannot be used “both” to enhance hispunishment for assault and to augment the enhanced punishment he willnecessarily receive for having committed the assault for the benefit of the gang. As a result, section 12022.5 is similar to a lesser included offense as he would nothave been eligible for the augmented gang enhancement for the gang enhancementunder section 186.22, subd. (b)(1)(C) absent the jury’s determination that heviolated section 12022.5.

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31. People v. Andra (2007) 156 Cal.App.4th 638, the Third Appellate District heldthat where the defendant was convicted of two counts of identity theft, one countof vehicle theft, and one count of obtaining money by false pretenses, the court’ssentence of consecutive terms for each count did not violate section 654, since thecrimes were committed weeks apart and had different victims. This supported thecourt’s finding that the crimes were committed with separate intents, and thereforedid not violate section 654. (People v. Monarrez (1998) 66 Cal.App.4th 710, 713(re: substantial evidence supports intent and objective finding].

32. People v. Muhammad (2007) 157 Cal.App.4th 484, the First Appellate District,Division 5 held that, a defendant can only be “convicted” of one count of section646.9, as other subds in the section are merely penalty provisions for stalking. Subds. (b), (c)(1), and (c)(2) are penalty provisions triggered when the offense ofstalking as defined in subd. (a) is committed by a person with a history ofmisconduct. Therefore, the Court of Appeal imposed sentence on section 646.9,subd. (c)(2) and dismissed the other three counts of stalking. (See People v. Ryan(2006) 138 Cal.App.4th 360, 371.) SEE SIMILAR ISSUE INFRA THISSECTION NO. 47

33. People v. Martinez (2008) 161 Cal.App.4th 754, the Fourth Appellate District,Division 2, held that where the evidence established that the defendant presentedvictim with a stack of documents to be signed and that he affirmativelymisrepresented to her that their purpose was to help her with her financialproblems and/or help her file a bankruptcy, when his actual purpose was to gain asecurity interest in her home, was sufficient to establish the “trickery and deceit”element of forgery. (See § 470; People v. Parker (1967) 255 Cal.App.2d 664,672.) Additionally, where the defendant also induces the victim to signdocuments, while failing to disclose their true nature, may be convicted of forgeryregardless of whether defendant makes an affirmative misrepresentation. Thiscase is distinguishable from People v. Looney (2004) 125 Cal.App.4th 242, in thatthe defendant failed to disclose the true nature of the documents. The defendantwho unlawfully induces the victim to sign single document in more than one placemay only be convicted of one count of forgery.

34. People v. Bragg (2008) 161 Cal.App.4th 1385, the Third Appellate District heldthat multiple street gang enhancements, within the meaning of section 186.22,subdivision (b)(1), to sentences based on attempted murder convictions arising outof single incident involving multiple victims do not violate section 654's ban onmultiple punishments for a single crime. (See People v. Oates (2004) 32 Cal.4th1048, 1063.)

35. People v. Moseley (2008) 164 Cal.App.4th 1598, the Fifth Appellate District heldthat where defendant was convicted of possession of drugs for purpose of sale(Health & Saf. Code §§ 11378 and 11359), and maintaining a location for purposeof selling drugs (Health & Saf. Code § 11366), the trial court was not required tostay sentencing for any of the offenses under section 654, because the defendant’s

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intent in maintaining a consistent location for selling drugs was independent of hisobjective to sell the specific bags of drugs in his possession at the time of hisarrest.

36. People v. Briones (2008) 167 Cal.App.4th 524, the Second Appellate District,Division 6 held that the defendant who was found guilty of conspiracy to possessheroin for sale and conspiracy to possess methamphetamine for sale as part of asingle conspiracy to possess both drugs, could only be convicted for one act ofconspiracy to possess drugs for sale. Where defendant’s conspiracy andpossession of drugs for sale arose from same set of operative facts, (see People v.Lawrence (2000) 24 Cal.4th 219 [re: same set of operative facts]), the defendantcould not be punished for both conspiracy and substantive offenses that wereobject of conspiracy. (See People v. Ramirez (1987) 189 Cal.App.3d 603.) Wheredefendant possessed two types of drugs in large amounts, evidence supportedinference that defendant intended multiple sales to different customers, anddefendant could by sentenced for two counts of possession with intent to sell. (See People v. Blake (1998) 68 Cal.App.4th 509.)

37. People v. Conners (2008) 168 Cal.App.4th 443, the Second Appellate District,Division 8 held that the court erred in failing to stay sentence under section 654,on one count of receiving stolen property, when sentence was imposed on a countfor money laundering since there was only one criminal intent or objective.(People v. Moseley (2008) 164 Cal.App.4th 1598, 1603 [there was one indivisiblecourse of conduct.]) Here, the there was only one intent, to keep the stolen funds.

38. In re Noelle M. (2008) 169 Cal.App.4th 193, the Third Appellate District held thatthe Court of Appeal found that the juvenile court did not err in imposingconsecutive terms of confinement for each of five separate offenses of sellingmethadone where minor admittedly sold drugs to seven others. The minor’sculpability increased with each illegal act of selling drug, each sale was unique,and each sale constituted a separate objective. (Cf. People v. Perez (1979) 23Cal.3d 545, 549-553 [each sex act constitutes a separate objective].) Where thereis multiple sales of the same drug to the same person, there is an indivisiblecourse of conduct, and section 654 is implicated.

39. People v. Harbert (2009) 170 Cal.App.4th 42, the First Appellate District,Division 2 held that Under Vehicle Code sections 20003 and 20001, therequirement of proof of knowledge that an accident occurred (see People v.Hamilton (1978) 80 Cal.App.3d 124, 132), may, like the requirement ofknowledge of injury, be satisfied by proof of constructive knowledge. Additionally, the trial court did not err in giving CALJIC 12.70, because proof ofactual knowledge that an accident occurred was not required. The prosecutor’suse of the theory of imputed knowledge, based on evidence of the defendant’sconduct after the accident was not misconduct. Furthermore, the trial court didnot err in sentencing defendant pursuant to section 12022.7, which prohibits theenhancement where great bodily injury is an element of offense, because

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gravamen of the Vehicle Code section 20001 offense is leaving scene (see Peoplev. Escobar (1991) 235 Cal.App.3d 1504, 1509), not the initial injury to the victim,with no element of personal injury to the victim. However, the sentence on thesection 12022.7 enhancement must be stayed pursuant to section 654. (SeePeople v. Sloan (2007) 42 Cal.4th 110, 116.)

40. People v. Kenefick (2009) 170 Cal.App.4th 114, the Third Appellate District heldthat where other forgery convictions were preliminary steps in plan to stealvictim’s money, for which defendant was convicted of theft, securities fraud, andburglary, the trial court should have stayed sentence under section 654 to avoidmultiple punishment. (People v. Beamon (1973) 8 Cal.3d 625, 637; see alsoPeople v. Curtin (1994) 22 Cal.App.4th 528 [generally only punishment onburglary or forgery as it was an indivisible course of conduct].)

41. People v. Jones (2009) 178 Cal.App.4th 853, the Fourth Appellate District,Division 2 held that the trial court did not abuse its discretion by relying upondefendant’s prior conviction both to double the base term as required by the ThreeStrikes law (§ 667, subd. (e)(1)), and to add a five-year prior-serious-felonyenhancement as required by section 667, subdivision (a)(1), and as one of severalaggravating factors justifying upper term under section 1170, subdivision (b). Theuse of the same prior conviction both to impose a 5-year prior-serious-felonyenhancement under section 667, subdivision (a)(1), and to impose a prior-arsonenhancement under section 451.1, subdivision (a), does not violate section 654'sban on multiple punishment for same crime, as the court indicated that they areboth “status enhancements” and section 654 does not apply to status enhancementbased on this court’s analysis.

42. People v. Felix (2009) 172 Cal.App.4th 1618, the Second Appellate District,Division 8 held that the court did not err in sentencing appellant concurrently forshooting into an inhabited dwelling even if the purpose of the shooting was toaccomplish the attempted murder, charged in count 1, given the fact there weremultiple victims in the residence, even though the defendant was attempting tokill one particular victim. (People v. McFarland (1989) 47 Cal.3d 798, 803 [themultiple victim exception to section 654 which allows for a separate punishmentfor each crime of violence against a different victim, even though all crimes arepart of a single course of conduct with a single principle objective]; see alsoPeople v. Anderson (1990) 221 Cal.App.3d 331, 335-339.)

43. People v. Hairston (2009) 174 Cal.App.4th 231, the Third Appellate District heldthat based on the wording of section 148, a defendant can be convicted of separatemisdemeanor counts of resisting a peace officer in the discharge of duty based oneach peace officer he resisted even if defendant’s acts of resisting arrest were onecontinuous act. The court distinguished People v. Garcia (2003) 107 Cal.App.4th1159, which holds that in a prosecution for evading (§ 2800.2), the prosecutor wasnot free to charge three counts of evading even though the defendant led threepolice vehicles on a lengthy high-speed chase. Substantial evidence supported the

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trial court’s conclusion that the defendant formed a new and independent intent toavoid arrest by each officer with each officer he encountered, and thereforesection 654 is not implicated.

44. People v. Ramon (2009) 175 Cal.App.4th 843, the Fifth Appellate District heldthat, the defendant could not be “convicted” of both carrying a loaded firearmwhile a member of a criminal street gang (§ 12031, subd. (a)(2)(C), and ofcarrying a loaded firearm for which he was not the registered owner (§ 12031,subd. (a)(2)(F), based on his possession of the same firearm because they are notseparate offenses, but instead are different penalty provisions for section 12031. (See People v. Muhammad (2007) 157 Cal.App.4th 484, 490-491.) Therefore, itwas error to stay one of the gun offenses pursuant to section 654.

45. People v. Cantrell (2009) 175 Cal.App.4th 1161, the Fourth Appellate District,Division 2 held that a stayed sentence, pursuant to section 654, cannot beconsecutive to a principal sentence, and a term cannot be both consecutive andstayed simultaneously because the two are mutually exclusive. (See § 1170.1,subd. (a)).

46. People v. Anderson (2009) 47 Cal.4th 92, the California Supreme Court held thatwhere a jury has convicted a defendant of an offense, in this case within section667.61 (one strike), but deadlocked on an enhanced penalty allegation, the federalconstitutional double jeopardy clause does not prevent retrial on those mistriedenhancements, nor does the state statutory provision against double jeopardy ofsection 1023. Furthermore, the penalty provision may be retried as to thedeadlocked penalty provisions alone, and not with the underlying offense.

47. Porter v. Superior Court (2009) 47 Cal.4th 125, the California Supreme Courtheld that where a jury convicted the defendant of several offenses and found allattached penalty allegations or factors to be true, but the trial court granted a newtrial motion under section 1181 on some of the enhanced penaltyfactors/allegations. Such an order could not be construed as an express or impliedacquittal, and as a result, it did not trigger constitutional double jeopardyprotections, nor did the state statutory provision against double jeopardy (§ 1023),bar retrial. The scope of the retrial is limited to those sentencing allegationsalone. The court reasoned that the judge is acting as the “13th juror” in grantinghe motion for a new trial, and it is the equivalent of a juror who is a “holdout” foran acquittal. In such a case, said ruling is not an acquittal, and does not bar retrialon double jeopardy grounds, but is similar to a mistrial or hung jury, where theissue can be retried. (See People v. Serrato (1973) 9 Cal.3d 753, 761; see alsoPeople v. Lagunas (1994) 8 Cal.4th 1030, 1038-1039.)

48. People v. Alvarez (2009) 178 Cal.App.4th 999, the Fourth Appellate District,Division 3 held that since each charged act was separate and distinct, and nonewas necessary to accomplish the others, section 654 did not come into play; butwhere two crimes were the means by which two other crimes were accomplished,

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the defendant’s sentence for the lesser crimes had to be stayed pursuant to section654. (People v. Perez (1979) 23 Cal.3d 545, 553 [§ 654 will not apply in a sexcase unless the crime unless the crimes were either incidental to or the means bywhich another crime was accomplished].)

49. People v. Sanchez (2009) 179 Cal.App.4th 709, the Fourth Appellate District,Division 2 held that section 654’s prohibition against multiple punishments forthe same crime precludes sentencing the defendant for both the substantiveoffense of gang participation and for the underlying crime. (See People v. Vu(2006) 143 Cal.App.4th 1009.)

50. People v. Tarris (2009) 180 Cal.App.4th 612, in 2009 Los Angeles Daily Journal17767, the Fourth Appellate District, Division 2 held that the trial court's power toimpose other reasonable conditions of probation pursuant to section 1203.1included the authority to require the defendant to reimburse the county for thecosts of investigating defendant’s crime as well as clean-up costs. It can heargued that this is contrary to People v. Baker (1974) 39 Cal.App.3d 550, 559which does not permit the costs of prosecuting or rehabilitating criminals. However, the trial court erred in imposing restitution fines under Health andSafety Code section 25189.5, subdivision (e) for defendant’s convictions forillegal disposal and transportation of hazardous waste since defendant’s actionsconstituted an indivisible course of conduct, committed with a single intent andobjective. (See People v. Hester (2000) 22 Cal.4th 290, 294.) Imposing duplicatefines constituted multiple punishment for the same act or course of conduct inviolation of section 654, which was applicable even though defendant’s sentencewas suspended, and the Health and Safety Code section 25189.5, subdivision (e)fine was imposed as a condition of probation. The trial court erred in imposingfive court security fees when defendant was convicted of only three offenses andin imposing a court construction fee because that fee statute was not yet in effectat time of defendant’s sentencing.

51. People v. Thompson (2009) 180 Cal.App.4th 974, in 2009 Los Angeles DailyJournal 18051, the Fourth Appellate District, Division 1 held that the trial courtdid not err by imposing consecutive sentences on defendant's convictions formanslaughter and driving under the influence, where two persons are injured orkilled, as section 654 does not prohibit such a sentence. (See People v.McFarland (1989) 47 Cal.3d 798, 803-804.)

52. People v. Alford (2010) 180 Cal.App.4th 1463, the Third Appellate District heldthat when it is determined by the trial court that section 654 precludes impositionof a prison term as to a particular count, it must impose sentence on that count andthen stay execution of that sentence. The court merely cannot refrain fromimposing sentence on those counts, except where probation is granted. CaliforniaRules of Court, Rule 4.424, is inconsistent with section 654 to the extent itprovides for a stay of imposition of sentence, rather than for imposing sentenceand staying execution.

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53. People v. Wynn (2010) 184 Cal.App.4th 1210, the Fourth Appellate District,Division 1 held that the trial court did not err in failing to stay, pursuant to section654, where substantial evidence supported the finding that the defendant had adifferent objective in committing a burglary than the assault where he walked outof a store without paying for an item, then threw the item on the ground, and didnot attempt to retrieve it before assaulting loss prevention officer who hadattempted to detain defendant. (People v. Vidaurri (1980) 103 Cal.App.3d 450,465-466 [substantial evidence supported finding of two different intents].) Thetrial court did not err in failing to stay the possession of the nunchaku where hecarried them into the store, before the assault took place, and said he carried theweapon because people were afraid of them. It was not unreasonable for the trialcourt to conclude that the possession of the weapon was distinctly antecedent andseparate from the offense of assault with a deadly weapon. (People v. Ratcliff(1990) 223 Cal.App.3d 1401, 1413.) If there was no evidence of antecedentpossession, then it would be stayed pursuant to section 654. (People v. Bradford(1976) 17 Cal.3d 8, 22; People v. Venegas (1970) 10 Cal.App.3d 814, 821.)However the court did err in failing to stay, pursuant to section 654 the gunenhancement within the meaning of section 12022, subdivision (b)(1), whichoccurred during the commission of a burglary when it was based on the same actas the assault counts. (See People v. Britt (2004) 32 Cal.4th 944, 952.)

54. People v. Newton (2010) 189 Cal.App.4th 314, the Second Appellate District,Division 6 held that an enhancement under Health and Safety Code section11370.2, subdivision (a), may be imposed in the current matter even whenexecution of sentence on the prior convictions were stayed under section 654 inthe prior proceeding. In the current matter appellant was found guilty of twocounts of sales under Health and Safety Code section 11352. Appellant had twopriors that qualified under Health and Safety Code section 11370.2, subdivision(a), which the court found true in a bifurcated proceeding. The wording of Healthand Safety Code section 11370.2, subdivision (a) requires an enhancement for aprior offense irrespective of whether a defendant served a prior prison term.

55. People v. Atencio FORMERLY AT: (2010) 190 Cal.App.4th 695, VACATEDAND REWRITTEN (2012) 208 Cal.App.4th 1239) SEE PAGE 139 INFRA., (theearlier opinion held): the Third Appellate District held that the defendant's theftof a gun and then his possession of the weapon thereafter did not violate section654 as the defendant harbored different intents. (See People v. Garfield (1979) 92Cal.App.3d 475, 478.) The court rejected appellant's contention that there was butone intent, to possess the weapon, and rejected the rationale of People v. Bradford(1976) 17 Cal.3d 8, 22, and People v. Venegas (1970) 10 Cal.App.3d 814, 821.

56. People v. Bui (2011) 192 Cal.App.4th 1002, the First Appellate District, Division4 held that pursuant to section 654, a defendant may not be punished for bothattempted murder (§ 664/187) and mayhem (§ 203), based on the same occasionand same set of operative facts. (See People v. Pitts (1990) 223 Cal.App.3d 1547,1560). The trial court erred in imposing consecutive enhancements pursuant to

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People v. Palacios (2007) 41 Cal.4th 720, 723, 725, and People v. Oates (2004)32 Cal.4th 1048, 1066 as the enhancements simply follow from the convictions ofthe substantive offense. (People v. Mustaffa (1994) 22 Cal.App.4th 1305, 1310[the tail does not wag the dog].) When the substantive offense is imposedconcurrently, the enhancement cannot be imposed consecutively. (Ibid.) Thematter is remanded for the trial court to determine if the substantive offensesshould be stayed pursuant to section 654, or whether they should be imposedconcurrently or consecutively, and the enhancement follows the substantiveoffense.

57. People v. Robinson (DEPUBLISHED); FORMERLY AT: (2011) 194Cal.App.4th 672, the majority in Second Appellate District, Division 5 held that,contrary People v. Ahmed (2011) 191 Cal.App.4th 1407, which is adopted by thedissent in this matter, hold that section 654's proscription against multiplepunishments arising out of the same criminal act does not apply to enhancementsfor personally using a firearm under section 12022.5, subdivision (a) and forinflicting great bodily injury pursuant to section 12022.7, subdivision (a) whencertain sex crimes are committed as directed by section 1170.1 subdivision (h). Section 1170.1, subdivision (f) and (g) do not limit the use of enhancements forboth firearm use and great bodily injury, within “this subdivision.” However asthe dissent points out, section 654 is still applicable to limit enhancements for asingle act so that multiple layers of punishment are not added for that single act.

58. People v. Jaska (2011) 194 Cal.App.4th 971, OVERRULED IN PEOPLE V.WHITMER (2014) 59 CAL4TH 733 the Fourth Appellate District, Division 1 heldthat, based on the facts of the case, a series of thefts, from a single employer,completed by a series of transactions over a period of time, was not a singlecriminal plan, but a series of thefts whenever the need or occasion arose; thereforethe Court of Appeal did not apply the single plan or scheme doctrine set forth inPeople v. Bailey (1961) 55 Cal.2d 514, People v. Packard (1982) 131 Cal.App.3d622, or People v. Richardson (1978) 83 Cal.App.3d 853.

59. People v. Powell (2011) 194 Cal.App.4th 1268, the Sixth Appellate District heldthat where the defendant played movies in an unavailing effort to arouse thevictim sexually, then raped her, the exhibition of harmful matter under section288.2 and the rape under section 288.7, were committed with separate intents, sopunishment for both crimes did not violate section 654's ban on multiplepunishments for a single crime. (See People v. Harrison (2009) 174 Cal.App.4th231, 240.)

60. People v. Tran (2011) 51 Cal.4th 1040, the California Supreme Court held thatthe prosecution is permitted to prove the predicate offense to establish the patternof gang activity by establishing that the defendant’s offense on a separate occasionmay qualify as a predicate offense within the meaning of section 186.22,subdivision (f).

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61. People v. Murillo REHEARING GRANTED; FORMERLY AT: (2011) 201Cal.App.4th 1382, the Fourth Appellate District, Division 1 held that theimposition of separate and consecutive sentences for deadly weapon enhancement and great bodily injury enhancement was mandated by section 1170.1,subdivisions (f) and (g). The majority found that in enacting the legislation, theywere seeking to eliminate the extension of section 654, and "free" enhancements. The Court of Appeal found People v. Palacios (2007) 41 Cal.4th 720, 730-731supportive of this position.

62. People v. Ahmed (2011) 53 Cal.4th 156, the California Supreme Court held thatthe imposition of two separate enhancement under section 12022.7, subdivision(a) and section 12022.5, subdivision (a), can both be imposed pursuant to section1170.1, which specifically authorizes imposition of a weapons enhancement and agreat bodily injury enhancement for the same crime. Said section is the morespecific statute and it takes precedence over the more general section 654, whichprohibits imposition of multiple punishments for the same crime. But if thespecific sentencing statutes do not provide the answer, then section 654 doesapply. Section 1170.1, subdivision (f) and (g) do not limit the use ofenhancements for both firearm use and great bodily injury, within "thissubdivision," and therefore since section 1170.1 provides the answer in this caseas to whether multiple enhancement can be imposed, then section 654 does notcome into play.

63. People v. Louie (2012) 203 Cal.App.4th 388, the Third Appellate District heldthat the trial court erred in failing to stay the conviction for the substantive offenseof street terrorism (§ 186.22, subd. (a)) when the defendants were convicted ofand punished for arson, dissuading a witness, and the gang enhancement pursuantto section 186.22, subdivision (b)(1). Where the same conduct that resulted in thearson and dissuading convictions, the defendants could not, under section 654, beseparately punished for street terrorism for the same conduct. (People v. Mendoza(1997) 59 Cal.App.4th 1333, 1345-1346 [a single criminal act, even if committedincident to multiple objectives, may be punished only once].) Section 654 did notbar separate punishments for arson and dissuading a witness where there wassufficient evidence to support a finding that the defendants harbored multipleindependent objectives when they threatened the victim and set her apartment onfire. (See People v. Beamon (1973) 8 Cal.3d 625, 639, fn. 11 [where a course ofconduct is divisible in time it may give rise to multiple punishment even if theacts are directive to one objective].)

64. People v. Schoenbachler (2012) 203 Cal.App.4th 1382, the Sixth AppellateDistrict held that when the defendant visited grandmother in facility, with the solecriminal intent and objective of gaining control of her grandmother's annuity,separate punishments for embezzlement and elder financial abuse, based on thatconduct, violated section 654's prohibition against multiple punishments for thesame crime. (See People v. Bailey (1961) 55 Cal.2d 514.) When the defendantand other relatives went to the care facility where the victim was residing, and

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threw various items of the victim's property from a van, including a jewelry boxthat the defendant had emptied of its contents without victim's permission,separate punishments for elder abuse and grand theft did not violate section 654. The trial court could have reasonably deduced from the evidence that thedefendant had two intents: (1) to steal jewelry, and (2) to humiliate victim inretaliation for her refusal to continue providing the defendant with financialsupport. Substantial evidence supported defendant's convictions forembezzlement and grand theft as separate crimes, rather than as a single ongoingoffense.

65. People v. Wensinger (2012) 204 Cal.App.4th 90, the Fourth Appellate District,Division 3 held that the prosecution's concession that the criminal threatsallegation was supported by insufficient evidence at defendant's first trialprecluded retrial on that charge, under the double jeopardy clause, even though thejudgment of conviction resulting from the first trial was reversed on othergrounds. (See United States v. Marolda (9th Cir. 1981) 648 F.2d 623, 624-625.) The jury convicted appellant of the charge in the first trial. The trial court wasrequired either to grant dismissal based on the prosecution's concession orindependently review record of the first trial to determine sufficiency of theevidence. (Ibid.)

66. People v. Kurtenbach (2012) 204 Cal.App.4th 1264, the Fourth Appellate District,Division 1 held that the trial court did not err in failing to stay either the arsoncount or concealing an insurance claim (§ 550, subd. (b)(3), since the two crimesconstituted a course of conduct divisible in time, and therefore, the defendant canbe punished for both. (People v. Beamon (1973) 8 Cal.3d 625, 639, fn.11.) However, the trial court did err in failing to stay the punishment for vandalismwhen considering the arson count, since this is an indivisible course of conductincident to one objective (People v. Perez (1979) 23 Cal.3d 545, 551.) Thepreclusion of section 654 for multiple victims is not applicable here since thecrimes are not both against a person (see People v. Miller (1977) 18 Cal.3d 873,886), as vandalism is not a crime against a person.

67. People v. Daniels (2012) 208 Cal.App.4th 29, the Second Appellate District,Division 1 held that following a retrial, and a second conviction the trial courtincreased the restitution fine and the parole revocation fine from what it hadimposed after the first conviction. The Court of Appeal found that this increaseviolated the protections against double jeopardy. (People v. Hanson (2000) 23Cal.4th 355, 365-367 [did the increase operate to penalize the defendant forexercising his right to appeal; when the sentence is a mix of time and money eachmust be measured against like components of the earlier sentence for the purposesof determining whether the aggregate sentence has been increased].) An increasein one component of a monetary sentence will not render punishment more severeif another component is reduced by an equal amount because the protectionagainst double jeopardy requires only that the aggregate monetary sentence, noteach component, be equal to or less than that originally imposed.

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68. People v. Correa (2012) 54 Cal.4th 331, the California Supreme Court held that adefendant found in possession of seven firearms was properly sentenced on sevenseparate counts. Since possession of each firearm was a distinct offense, suchsentencing did not violate section 654. To the extent that a "separate andindividual purpose" for each offense is required to treat possession of multiplefirearms as multiple crimes, the requirement was met on the basis of the evidencethat each weapon had its own ammunition and, therefore, each could have serveda different purpose or been used to commit a different crime. Section 654 does notexpressly preclude double punishment when an act gives rise to more than oneviolation of the "same" Penal Code section. It only precludes punishment indifferent ways for different provision of the law. The court expressly overruled itsprevious dicta in Neal v. State of California (1960) 55 Cal.2d 11, 18, footnote 1,and instead conclude that Penal Code section 654 does not govern multipleconvictions of the same provision of law.

69. People v. Mesa (2012) 54 Cal.4th 191, the California Supreme Court held thatwhere the defendant was convicted of two counts of assault with a firearm for twoseparate incidents in which he shot and severely wounded two complete strangers,and the jury also found true great bodily injury and personal firearm allegationswith respect to both convictions. It was error to impose multiple gang crimepenalties for violations of section 186.22, subdivision (a), since it was a violationof section 654, since the assault and the firearm enhancement were alreadyimposed. The majority relied in part on People v. Sanchez (2009) 179Cal.App.4th 1297, 1310-1313, which precludes sentencing the defendant for boththe substantive offense of gang participation and for the underlying crime. However, the defendant did not escape without being punished for his ganginvolvement, as his sentence was enhanced by 10 years pursuant to the gangenhancement, within the meaning of section 186.22, subdivision (b)(1)(C). Themajority reject the notion that generalized harm to the community rendered it avictim for purposes of the multiple victim exception to section 654. (See In reM.S. (1995) 10 Cal.4th 1048, 1063.)

70. People v. Jones (2012) 54 Cal.4th 350, the California Supreme Court held that adefendant may not be punished separately for the crimes of possession of afirearm by a felon, carrying a readily accessible concealed and unregisteredfirearm, and carrying an unregistered loaded firearm in public, with respect to thesame firearm, as these are a single act under section 654. The court specificallyoverruled In re Hayes (1969) 70 Cal.2d 604, and disapprove People v. Harrison(1969) 1 Cal.App.3d 115.

71. People v. Atencio (2012) 208 Cal.App.4th 1239, the Third Appellate District heldthat the trial court erred in imposing consecutive sentences for grand theft of afirearm and firearm possession by a felon as it constituted multiple punishmentsfor the same crime in violation of section 654, where defendant had a singlecriminal intent and objective. (See People v. Jones (2012) 54 Cal.4th 350, 352,358-360.)

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72. People v. Calles (2012) 209 Cal.App.4th 1200, the Second Appellate District,Division 5 held that the trial court erred in many different ways, mostly pertainingto the application to section 654, as to both substantive counts and enhancements. Appellant was convicted of vehicular manslaughter (§ 192, subd. (c)(1)) in count1 (Rocha) and count 2 (Santee); in counts 3, 7 and 8 of leaving the scene of anaccident with injury (Veh. Code § 20001, subd. (a)), count 3 applicable to victimMedina, count 7 victim Santee, count 8 victim Rocha; and in count 9, seconddegree murder of Santee. Appellant was also charged as to counts 1 and 2 with 2enhancements under section 12022.7, subdivision (a), and 1 enhancement underVehicle Code section 20001, subdivision (c). As to count 1, the Court of Appealheld that since gross vehicular manslaughter is a crime of violence (People v.McFarland (1989) 47 Cal.3d 798, 803-804), and the trial court erred in stayingthat count pursuant to section 654. However, the Court of Appeal found that theenhancements that applied to that count had to be stayed pursuant to section 654since appellant was sentenced on count 9 for the death of Santee, and he wassentenced he was enhanced in count 9 with the great bodily injury to Medina,therefore he has already been sentenced with that enhancement for Medina. (SeePeople v. Ahmed (2011) 53 Cal.4th 156, 165-167.) The enhancement for count 1under Vehicle Code section 20001, subdivision (c) must be stayed, as will beshown below, it is imposed with either counts 3, 7 or 8.) (See People v. Verlinde(2002) 100 Cal.App.4th 1146, 1168.) Whether section 654 applies toenhancements is still somewhat of an open question, however, it was partiallyanswered in Ahmed, by applying the "modern trend", section 654 applies to theenhances applicable here. (People v. Ahmed, supra, 53 Cal.4th at p. 162.) Count 2was properly stayed as sentence for the murder of Santee was imposed in count 9. Since there can only be one conviction for a violation of Vehicle Code section20001, subdivision (a), (People v. Newton (2007) 155 Cal.App.4th 1000, 1002), itcan be imposed on either count 3, 7 or 8, and the other 2 counts must bedismissed. As to the great bodily injury enhancement on count 7, if the courtselects that count instead of either counts 3 or 8 to impose, then the enhancementmust be stayed as the defendant was sentenced on count 9 for those injuries. As tothe section 12022.7, subdivision (a) enhancements applicable to count 9 the courtfound that they were committed "in the commission" of the gross vehicularmanslaughter in count 1, and in violation of leaving the scene of an accident withinjury in counts 3 and 8, and therefore they could be imposed with the murdercount. The enhancement for the leaving the scene of the accident as to count 1and 2 must be stayed as it was imposed under either the substantive offense incount 3, 7 or 8. The trial court erred in imposing the 5-year enhancement forVehicle Code section 20001, subdivision (c) as to count 9, since it is specificallyapplicable to vehicular manslaughter and not murder, and it was only alleged as tocounts 1 and 2.

73. People v. Arauz (2012) 210 Cal.App.4th 1394, the Second Appellate District,Division 6 held that the trial court erred when if failed to stay, pursuant to section654, the substantive gang crime under section 186.22, subdivision (a) when it hadimposed the penalty for attempted premeditated murder which was used to satisfy

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the gang participation element. (People v. Mesa (2012) 54 Cal.4th 191, 197-198.) Additionally, the Court of Appeal struck the 10-year penalty for section 186.22,subdivision (b)(1)(C), where it had been imposed and stayed, but found that thesection 186.22, (b)(5) gang enhancement which is a minimum eligible parole dateof 15-L on the attempted murder counts. (See People v. Lopez (2005) 34 Cal.4th1002, 1004.)

74. People v. Sanders (2012) 55 Cal.4th 731, the California Supreme Court held thatthe defendant may not be separately punished for violations of sections 12021,subdivision (a)(1) and 12021.1, subdivision (a) based on his possession of thesame firearm, but he may be punished for two violations of both sections for thepossession of the two weapons. (People v. Correa (2012) 54 Cal.4th 331, 334, 341-345.)

75. People v. Dydouangphan (2012) 211 Cal.App.4th 772, the Fifth Appellate Districtheld that the trial court did not err in sentencing appellant on count 2, voluntarymanslaughter, concurrently to count 1, shooting at an occupied vehicle within themeaning of section 246, as there were 7 persons in the vehicle, and section 654does not preclude the imposition of punishment for this single act which was thesame conduct. (People v. Oates (2004) 32 Cal.4th 1048, 1063 [multiple victimexception to sec. 654].) Appellant was also sentenced consecutively on count 1with an enhancement within the meaning of section 12022.53, subdivision (d),with an additional 25-L. Separate enhancements focus on different aspects of thecriminal act, here the personal use of the firearm arose from shooting the victim,which warranted additional punishment. (See People v. Ahmed (2011) 53 Cal.4th156, 163-164 [applies to prohibit multiple punishment for multiple enhancementsfor a single event].) Here, the aspect of the criminal act that the Legislature hasdetermined requires "increased" punishment is the personal use of the firearm thatcaused the death. The "criminal acts" being punished are the voluntarymanslaughter and the shooting at an occupied vehicle. The Court of Appeal foundthat it would be illogical to use a provision intended to increase punishment for anaspect of a criminal act to pre punishment for the act itself. (Id., at pp. 164, 168.)

76. People v. Tinker (2013) 212 Cal.App.4th 1502, the Sixth Appellate District heldthat the trial court erred by imposing a concurrent term rather than staying,pursuant to section 654, a count of possession of methamphetamine for sale whenthat possession arose out of the same facts and circumstances as a count fortransportation of the same drug.

77. People v. Wooten (2013) 214 Cal.App.4th 121, the Third Appellate District, afterremand from the California Supreme Court to consider the points raised byappellant's petition for review, reaffirmed its prior opinion and hold that neithersection 654, nor People v. Ahmed (2011) 53 Cal.4th 156, preclude the impositionof multiple enhancements, primarily because the Court of Appeal found thatappellant's attacks on one of the victims, here M.S., was not the result of a singlecourse of conduct, but arose out of separate acts, one for the sexual assaults and

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the other for the attempted murder. Therefore, the Court of Appeal found that 2sentence enhancements for great bodily injury (§ 12022.7, subd. (a)), imposed forthe attempted murder and forcible oral copulation of the same victim did notconstitute multiple punishments for the same crime. Had the Court of Appealfound that appellant's conduct was a continuous course of conduct under section654, only one GBI enhancement would have been permitted. (See People v.Reeves (2001) 91 Cal.App.4th 14; People v. Alvarez (1992) 9 Cal.App.4th 121People v. Morlinglane (1982) 127 Cal.App.3d 811, and People v. Culton (1979)92 Cal.App.3d 113.

78. People v. Calderon (2013) 214 Cal.App.4th 656, the Second Appellate District,Division 3 held that section 654, and People v. Ahmed (2011) 53 Cal.4th 156, donot bar imposition of sentence for the personal use of a deadly weaponenhancement within the meaning of section 12022, subdivision (b)(2), since saidenhancement is an implied exception to section 654. Even if section 12022,subdivision(b)(2) did not operate as an implied exception to section 654, theenhancement could be imposed in addition to the penalty for the underlyingoffense of carjacking, as the car jacking can be completed without the use of thedeadly weapon, which adds punishment for that conduct or aspect of the act that isnot always present in a carjacking.

79. People v. Carbajal (2013) 56 Cal.4th 521, the California Supreme Court held thatwhere the defendant was tried for sexually molesting two victims, and there was amultiple victim allegation under section 667.61 (the "One Strike" law). The jurydid not have authority to return any verdict on multiple-victim "One Strike"allegation after it found defendant guilty on some counts involving a single victimbut deadlocked on all counts involving the other alleged victim. Neither the firstjury’s original finding that the allegation was true, nor its subsequent finding thatthe allegation was not true after further deliberations had been ordered by thecourt, was binding, and a second trial on the allegation following a mistral did notconstitute double jeopardy. Section 1161 provides that when there is a verdict ofconviction, in which it appears to the Court that the jury have mistaken the law,the Court may explain the reason for hat opinion and direct the jury to reconsidertheir verdict, and if, after the reconsideration, they return the same verdict, it mustbe entered; but after a verdict of acquittal, the jury cannot reconsider it. Afterhearing the verdict for the second time, the court should have, within the meaningof sections 1147 and 1149, proper adherence to the statutory scheme would haveled to the jury's declaration of a verdict. Here the trial court did not attempt toclarify an unintelligible verdict. A verdict of true or not true on the specialallegation would have been inconsistent with the jury's findings of the substantivecounts, but it would not have been unintelligible in the way that a finding of guiltand acquittal on the same count is. In sum, once the jury deadlocked on thecounts involving one of the alleged victims, they could not have returned a verdicton the penalty allegation, and double jeopardy thus did not bar retrial on thatallegation.

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80. People v. Casica (2014) 223 Cal.App.4th 320, the Fourth Appellate District,Division 3 held that the trial court erred when it imposed concurrent sentences forforgery and burglary rather than staying, pursuant to section 654, the forgery (§470) counts, when it imposed the commercial burglary counts, that arose from thesame single objective without evidence of separate intent, even if the cashing ofchecks took place at different time periods.

81. Martinez v. Illinois (2014) U.S. , reported on May 28, 2014, in 2014 LosAngeles Daily Journal 6478, the United States Supreme Court held that after thetrial court swore in the jury, but the prosecutor declined to present any evidence,the trial court granted a directed verdict of acquittal, which prosecution sought toappeal on ground that trial court had improperly denied a continuance. TheDouble Jeopardy Clause barred further prosecution. The cases handed down fromthe high court have stated a "bright line rule" that jeopardy attaches when the juryis empaneled and sworn. (Crist v. Bretz (1978) 437 U.S. 28, 35.)

82. People v. Devaughn (2014) 227 Cal.App.4th 1092, the Fourth Appellate District,Division 2 held that section 654 does not prohibit multiple convictions forproperty crimes, such as section 530.5 (identity theft) or section 115 (recording afalse document) or other financial crimes, arising from a common scheme or plan,that are committed against different victims or against the same victim on separateoccasions. A violation of Financial Code section 17200, which makes it "unlawfulfor any person to engage in business as an escrow agent...except by means of acorporation duly organized for that purpose licensed by the commissioner as anescrow agent," is not a continuing offense. Defendant was properly convicted ofseparate violations of the statute for separate acts committed as an unlicensedescrow agent.

83. People v. Whitmer (2014) 59 Cal.4th 733, the California Supreme Court held thatit is not error to charge and convict the defendant of "individual grand thefts ofproperty" as separate counts of grand theft pursuant to People v. Bailey (1961) 55Cal.2d 514 [a single criminal plan completed by a series of transactions over aperiod of time, each requiring the execution of separate documents to complete,constitutes by one crime]. Here, an employee who fraudulently sold hisemployer’s merchandise to fictitious buyers, with resulting financial loss to theemployer, may be convicted of a separate theft for each fraudulent transaction,even though the sales were part of a single overarching scheme. This is a new ruleof California law, and it may only be applied prospectively. This court overrulesthose cases inconsistent with this opinion such as People v. Jaska (2011) 194Cal.App.4th 971; People v. Kronemyer (1987) 189 Cal.App.4th 314; People v.Brooks (1985) 166 Cal.App.3d 24; People v. Packard (1982) 131 Cal.App.3d622; People v. Gardner (1979) 90 Cal.App.3d 42; and People v. Richardson(1978) 83 Cal.App.3d 853.)

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84. People v. Gonzalez (2014) 60 Cal.4th 533, the California Supreme Court held thata defendant may, consistent with section 954, which permits the prosecution ofmultiple related offenses as separate counts a single information, be convicted ofboth oral copulation of an unconscious person and oral copulation of anintoxicated person within the meaning of sections 288a, subdivisions (f) and (i))based on the same act, although the defendant may not be punished for bothcrimes. (Cf. People v. Vargas (2014) 59 Cal.4th 635, 637.) The two subdivisionsfrom the same section, set forth different circumstances under which the sameoffense of oral copulation can be committed. The court found that People v Craig(1941) 17 Cal.2d 453, is distinguishable.

85. People v. Eroshevich (2014) 60 Cal.4th 583, the California Supreme Court heldthat state and federal constitutional protections against double jeopardy do notpreclude a retrial should the lower court grant the defendant's motion for a newtrial or dismiss on grounds other than insufficiency of the evidence. A trial court'saction amounting to the legal equivalent of an acquittal "prior to the jury'sverdict," cannot be appealed by the people because a successful appeal wouldresult in a second trial which would violate the protection against double jeopardy(Evans v. Michigan (2013) 568 U.S. [133 S.Ct. 1069, 1074].) On the otherhand, if a trial court rules that evidence was insufficient to support a conviction"after the jury has returned a verdict, the people may appeal that ruling becausereversal would result in reinstatement of the jury verdict of guilt, and not a newtrial. (Id., at p. 1081, fn. 9.)

86. People v. Pedroza (2014) 231 Cal.App.4th 635, the Second Appellate District,Division 8 held that a post-trial dismissal for insufficiency of evidence tocorroborate the accomplice's testimony is tantamount to acquittal for doublejeopardy purposes. Following the guilty verdict for first degree murder, which wasbased primarily on the accomplice's testimony, which the court found to belacking, the motion to dismiss for insufficiency was proper and barred retrial ondouble jeopardy grounds. The court's ruling that there was insufficient evidenceto convict as a matter of law constituted an acquittal, and because the court'sruling was after the jury's verdict, it was appealable.

87. People v. Kirvin (2014) 231 Cal.App.4th 1507, the Second Appellate District,Division 2 held that the trial court did not abuse its discretion in denyingdefendant the right to represent himself after he repeatedly refused to come tocourt and be interviewed by a court-appointed mental health expert when hiscompetency to assist counsel was also challenged. (See People v. Johnson (2012)53 Cal.4th 519, 533.) The court made the determination that he was competent tostand trial, just not to represent himself. Where the defendant made multipletelephone calls urging a relative to persuade the prosecution’s chief witness not totestify at trial, each call constituted a separate violation of section 136.1,dissuading a witness. The question here was the application of People v. Bailey(1961) 55 Cal.2d 514, whether he could be convicted of multiple counts ofdissuading a witness, or just one count if his acts constituted one intent, one

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general impulse or plan. The court broke down the rule into two distinctcategories: (1) crimes that treat harm or damage as one of their elements, andwhich permit the prosecution to aggregate that harm or damage, such as in casesof vandalism or theft; (2) all other crimes that do not monetize and aggregateharm. Here, the defendant clearly falls into the second category, and therefore hecan be convicted of multiple counts of dissuading a witness.

88. People v. Rodriguez (2015) 235 Cal.App.4th 1000, the Fourth Appellate District,Division 1 held that it was not error to impose separate sentences, for robbery andevading arrest with reckless driving, and did not violate section 654’s ban onmultiple punishments for the same crime. Substantial evidence supported trialcourt’s finding that the crimes had separate objectives. The objective of therobbery being to obtain money from the victim, while the objective of the evadingarrest with reckless driving was to avoid being caught by the police afterward.

89. People v. Chung (2015) 237 Cal.App.4th 462, the Second Appellate District,Division 4 held that where the defendant offered to sell multiple drugs to a singleperson, the defendant can only be liable for one sale as it was based on a singleobjective within the meaning of section 654. (Cf. In re Adams (1975) 14 Cal.3d629, 636.)

90. People v. White REVIEW GRANTED; FORMERLY AT: (2015) 237Cal.App.4th 1087, the Fourth Appellate District, Division 1 held that a defendantcannot be convicted of both rape of an intoxicated person and rape of anunconscious person based on a single act of intercourse. (See People v. Craig(1941) 17 Cal.2d 453. This court also found that People v. Gonzalez (2014) 60Cal.4th 533, reaffirms Craig in terms of the different section 261 offenses, asopposed to their holding in terms of the violations of section 288a, subdivision (f)and (I).

91. People v. Goolsby (2015) 62 Cal.4th 96, the California Supreme Court held thatwhere the court of appeal reversed a conviction for arson of "an inhabitedstructure or inhabited property," within the meaning of section 451, subdivision(b),retrial is not precluded on the lesser related offense of arson of property, (§451, subd. (d)), even though that crime was not charged, but the court instructedon it believing tht it was a lesser included offense, and the jury did not reach averdict on it. The court found that there was not a violation of section 654 norKellett v. Superior Court (1966) 63 Cal.2d 822. If the trial court had notinstructed the jury on arson of property, Kellett would have prohibited fromcharging that crime for the first time now. Additionally, defense counsel did notobject to the instruction.

92. People v. Nilsson (2015) 242 Cal.App.4th 1, the Third Appellate District held thatthe trial court erred when it sentenced certain defendants to the aggravated whitecollar enhancement within the meaning of section 186.11, subdivision (a), basedon multiple counts arising from a bribery and kickback scheme, based on its own

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finding that two of the offenses of which defendants were convicted, grand theftand bribery, were related, even though the relationship was neither pled in theinformation nor found by the jury. A defendant who committed multiple thefts aspart of an "overarching scheme" may only be convicted of a single count of theft(see People v. Bailey (1961) 55 Cal.2d 514) if the thefts were committed prior toPeople v. Whitmer (2014) 59 Cal.4th 733, which eliminated the "felony discount"recognized in prior cases. The prosecution had originally pled two counts ofgrand theft, but the court found that based on the Bailey theory, the defendantscould only be found guilty of one count of grand theft. As a result, the trial courterred when it imposed the aggravated white collar crime enhancement based on itsown finding that the grand theft was related to the bribery, a relationship that wasneither pleaded in the information nor found by the jury. Furthermore, the Courtof Appeal found that the Bailey doctrine is not abrogated.

93. People v. Goode (2015) 243 Cal.App.4th 484, the Third Appellate District heldthat there was sufficient evidence to support the defendant's conviction for firstdegree burglary where the victim/resident’s testimony that he was awakened bythe sound of a storm door being opened, when he looked outside his house andsaw the defendant opening of the storm door; this conduct constituted an entryinto the house. (See People v. Valencia (2002) 28 Cal.4th 1, 13.) However, thedefendant could not be punished both for a burglary at the victim’s front door andthe attempted burglary at a window, because the evidence showed only a single,indivisible intent to enter the victim’s residence to commit a theft. (§ 654; Peoplev. Correa (2012) 54 Cal.4th 331, 335-336 [if all of the offenses are incident to oneobjective, the defendant may be punished for any one of such offenses, but not formore than one.])

94. People v. Goolsby (2016) 244 Cal.App.4th 1220, the Fourth Appellate District,Division 2 held that initially, the defendant’s conviction of arson of an inhabitedstructure (§ 451, subd. (b)), was reversed due to insufficiency of the evidence thatthe inhabited motor home was a "structure." The California Supreme Court heldin People v. Goolsby (2015) 62 Cal.4th 360 that section 654 does not bar a retrialon the lesser related offense of arson of property, (§ 451, subd. (d)), even thoughthat crime was not charged, but the court instructed on it believing that it was alesser included offense, and the jury did not reach a verdict on it. Now this courton remand, holds that double jeopardy precludes retrial for arson of property andfor any other lesser related offense on which the jury was instructed, such asunlawfully causing a fire of property (§ 452, subd. (d)). Double jeopardyprecludes a retrial when a conviction is reversed for insufficiency. (People v.Anderson (2009) 47 Cal.4th 92, 104.)

95. People v. Hutton (2016) Cal.App.4th , reported on March 16, 2016, in 2016Los Angeles Daily Journal 2485, the Fifth Appellate District held that a defendantreleased from incarceration on "sheriff's parole," when he had been in county jail,rather than state prison, pursuant to the Criminal Justice Realignment Act, is not"in custody" for purposes of being entitled to credits under section 2900.5,

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subdivision (a) for a different offense. A defendant who was sentencedconcurrently for an offense and for violating his parole as a result of the offense isentitled to presentence custody credits because his offense was the "but for" causeof his presentence custody. (See People v. Bruner (1995) 9 Cal.4th 1178, 1181-1182.)

11. EQUAL PROTECTION; REALIGNMENT; 1170, SUBDIVISION (h)

1. People v. Dial (2004) 123 Cal.App.4th 1116, the Third Appellate District heldthat the delay in sentencing the defendant pending release from prison in anotherstate did not deny him equal protection by precluding him from earning creditagainst California sentence for time served in the other state, whereas thedefendant awaiting trial rather than sentencing would be entitled to be transferredto California following the demand or have charges dismissed pursuant toInterstate Agreement on Detainers. Defendants awaiting trial and those awaitingsentencing are not similarly situated, and if they were, different treatment wouldbe justified by compelling government interest. Exemption of prisonersincarcerated outside state from 90-day limit for imposing sentence on incarceratedpersons following request does not violate equal protection since out-of-stateprisoners, whose presence might not be rapidly procured, are not similarlysituated. Trial court was not required to grant defendant a speedy sentencingwhere defendant demanded same but was incarcerated outside state and would notwaive right to be present.

2. People v. Lynch (REHEARING; REVIEW DENIED: FORMERLY AT: (2012)209 Cal.App.4th 353, the Third Appellate District held that the defendant’s rightto equal protection is not violated where the legislature’s limited the 2011realignment act’s application (see § 1170, subd. (h)), to felons sentenced on orafter its operational date of October 1, 2011. The trial court was not required toresentence the defendant who was sentenced to state prison prior to that date, butwould have been sentenced to county jail if the act applied to him.

3. People v. Kennedy (2012) 209 Cal.App.4th 385, the Sixth Appellate District heldthat the amendment to section 4019 which awarded greater custody credit tocertain offenders whose crimes were committed on or after October 1, 2011, didnot deprive defendant, who was in custody on that date as a result of a previouslyimposed sentence, of equal protection of the laws. A statute amelioratingpunishment for particular offenses may be made prospective only withoutoffending equal protection, because the legislature will be supposed to have actedto optimize the deterrent effect of criminal penalties by deflecting any assumptionby offenders that future acts of lenity will necessarily benefit them.

4. People v. Clytus (2012) 209 Cal.App.4th 1001, the Second Appellate District,Division 8 held that the defendant whose probation was revoked, and who had hispreviously suspended sentence executed after October 1, 2011, was required to be

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sentenced in accordance with the meaning of section 1170, subdivision (h), theCriminal Justice Realignment Act of 2011.

5. People v. Griffis (2013) 212 Cal.App.4th 956, the Third Appellate District heldthat prior Washington convictions constituted sentencing factors that did not needto be pled and proven to a jury within the meaning of People v. Lo Cicero (1969)71 Cal.2d 1186, or People v. Ford (1964) 60 Cal.2d 772. This court found thatserving a sentence in state prison rather than in county jail under realignmentwithin the meaning of section 1170, subdivision (h), did not increase punishment.(See People v. Lara (2012) 54 Cal.4th 896, 905; see also In re Varnell (2003) 30Cal.4th 1132, 1139-1141.) However, imposition of a third strike enhancement wasnot supported where there was insufficient evidence on the record that theelements of the Washington felonies would qualify as serious or violent feloniesin California. The prior can be retried under Monge v. California (1998) 524 U.S.721 [141 L.Ed.2d 615].

6. People v. Guillen (2013) 212 Cal.App.4th 992, the Second Appellate District,Division 6 held that where a defendant pleaded guilty to a violation of VehicleCode section 23152, subdivision (b), with a prior, made the defendant statutorilyineligible to serve his sentence in county jail pursuant to realignment undersection 1170, subdivision (h). The court so held because section 23152 makes noreference of section 1170, subdivision (h) while other section specifically do.

7. People v. Hul (2013) 213 Cal.App.4th 182, the Fourth Appellate District, Division3 held that the trial court erred in the credits awarded at the time of his sentencing. Pursuant to section 2933, subdivision (e)(1), which was in effect at the time of thedefendant's offense, May 2011 (applicable to sentences on or after September 28,2010 and October 1, 2011), said section and section 4019, subdivision (h) gaveday-for-day credits to the defendant for pretrial custody credits. Therefore, undersections 4019, subdivision (h), and 2933, subdivision (e)(1), the 16-monthsentence for cocaine possession the trial court imposed would have been served instate prison, not in county jail. Accordingly, the applicable rate of presentenceconduct credit should have been full, day-for-day credit. (See § 4019, subd. (h).) Therefore, the trial court erred when it imposed the sentence under theRealignment Act (§ 1170, subd. (h)), to be served in county jail, and only gave thedefendant 2 for 1 credits.

8. People v. Torres (2013) 213 Cal.App.4th 1151, the Fifth Appellate District heldthat they disagreed with both the defendant and the prosecution that the defendantshould be able to serve her sentence in county jail, under realignment (§ 1170,subd. (h)), even though the current sentence was imposed first, and it had beenimposed on or after October 1, 2011. Instead, the Court of Appeal found thatwhen a felony sentence that otherwise would have been served in county jailpursuant to section 1170, subdivision (h) is ordered to run concurrently to asentence already being served in state prison, the entire sentence must be served instate prison.

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9. People v. Gipson (2013) 213 Cal.App.4th 1523, the Second Appellate District,Division 2 held, that it disagreed with Division 8 of this district in its ruling inPeople v. Clytus (2012) 209 Cal.App.4th 1001, which held that the defendantwhose probation was revoked, and who had his previously suspended sentenceexecuted after October 1, 2011, was required to be sentenced in accordance withthe meaning of section 1170, subdivision (h), the Criminal Justice RealignmentAct of 2011. This court held that for purposes of the Realignment Act, adefendant is sentenced on the date that sentence is first announced and imposed,even if execution of the sentence does not occur until after the Realignment Actcame into effect.

10. People v. Prescott (2013) 213 Cal.App.4th 1473, the Second Appellate District,Division 8 held that the statutory presumption set forth in section 987.8,subdivision (g)(2)(B), that a defendant sentenced to state prison lacks the ability topay defense costs does not apply to a defendant sentenced to county jail for afelony under 2011 Realignment Act. (See § 1170, subd. (h).) The trial courtordered appellant to pay $400 in attorney fees without giving him notice or ahearing on ability to pay. The matter is remanded for the court to conduct such ahearing, but the presumption will not apply.

11. People v. Delgado (2013) 214 Cal.App.4th 914, the Second Appellate District,Division 6 held, in an opinion following rehearing, that an adult felon whosepriors include juvenile adjudications that involve serious or violent felonies maynot receive county jail commitments under the Realignment Act, since the Three-Strikes law indicates that all persons who has a prior serious or violent felony, beit as an adult or juvenile, must go to state prison when being sentenced, andtherefore does not qualify for a county jail commitment under section 1170,subdivision (h) (realignment).

12. People v. Mora (2013) 214 Cal.App.4th 1477 the Fourth Appellate District,Division 1 held that the Criminal Justice Realignment Act, section 1170subdivision (h), which provides that certain defendants convicted of felonies servetheir sentences in local jails rather than state prison if sentenced on or afterOctober 1, 2011, does not apply to a defendant whose sentence was imposed andsuspended before, and whose probation was revoked and the sentence executed onor after, October 1, 2011. Application of Realignment Act to some defendants butnot others, based solely on each defendant’s sentencing date, does not violateequal protection rights of those defendants sentenced to state prison. (People v.Hofsheier (2006) 37 Cal.4th 1185, 1199.) The distinction has a rational basis inthat pre-realignment defendants were charged, had opportunities to negotiatepleas, and were sentenced with the understanding that any term of incarcerationfor a felony would be served in state prison.

13. People v. Kelly (2013) 215 Cal.App.4th 297, the Fourth Appellate District,Division 2 held that Defendant whose felony sentence was imposed prior toOctober 1, 2011 but executed after that date following revocation of probation

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must serve the sentence in state prison. Section 1170, subdivision (h)(6), whichprovides that certain felons serve their sentences either in county jail or stateprison, depending on sentencing date, does not, as applied to a defendant whosepre-October 1, 2011 sentence was executed after that date, violate the equalprotection clauses. (See People v. Cruz (2012) 207 Cal.App.4th 664, 668, 674-680; see also People v. Gipson (2013) 213 Cal.App.4th 1523.)

14. People v. Scott REVIEW GRANTED; FORMERLY AT: (2013) 216 Cal.App.4th848, the Sixth Appellate District held that the trial court did not err by sentencingappellant to county jail even though it had placed him on probation, with aexecuted sentence suspended prior to the passage of the Realignment Act (§ 1170,subdivision (h)(6)), which went into effect, October 1, 2011. (See People v.Clytus (2012) 209 Cal.App.4th 1001.) The Court of Appeal found that thelegislative intent behind Realignment Act was to shift low-level offendersconvicted of certain felonies from state to county supervision in an effort toreduce recidivism and to conserve state financial resources.

15. People v. Wilcox (2013) 217 Cal.App.4th 618, the Third Appellate District heldthat a defendant who was placed on probation prior to October 1, 2011, theoperative date of the Criminal Justice Realignment Act, section 1170, subdivision(h), but had his probation revoked and his previously suspended prison termimposed after that date, must serve the term in state prison. This case is in directconflict with People v. Clytus (2012) 209 Cal.App.4th 1001, but is consistent withPeople v. Gipson (2013) 213 Cal.App.4th 1523, People v. Kelly (2013) 215Cal.App.4th 297, and People v. Scott (2013) 216 Cal.App.4th 848.

16. People v. Moreno (2013) 218 Cal.App.4th 846, the Sixth Appellate District heldthat prior to effective date of realignment, the defendant was sentenced to stateprison. The sentence was then suspended and probation imposed, and whereprobation is revoked and sentence executed after realignment took effect, judge iswithout power to commit defendant to county jail, and he must serve his time instate prison. This court rejected the rationale of People v. Clytus (2012) 209Cal.App.4th 1001, and in stead followed the rationale of People v. Kelly (2013)215 Cal.App.4th 297.

17. People v. Reece (2013) 220 Cal.App.4th 204, the Six Appellate Districtacknowledged that there is a split in the cases whether a defendant who, prior toeffective date of realignment, (see § 1170, subd. (h)), the defendant was sentencedto county jail. Where sentences for non-violent felonies were imposed beforeOctober 1, 2011, the effective date of the Criminal Justice Realignment Act of2011, but not executed until after that date, the sentences had to be served incounty jail rather than in state prison. This holding is consistent with People v.Clytus (2012) 209 Cal.App.4th 100, and conflicts with People v. Kelly (2013) 215Cal.App.4th 297, People v. Gipson (2013) 213 Cal.App.4th 1523, People v.Moreno (2013) 218 Cal.App.4th 846 (a different panel from the Sixth District)and People v. Scott (2013) 216 Cal.App.4th 848.

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18. People v. Wilson (2013) 220 Cal.App.4th 962, the Second Appellate District,Division 8 held that the trial court did not err in sentencing appellant to stateprison rather than to county jail after his probation was revoked; the revocationbecame effective after the Criminal Justice Realignment Act of 2011 becameoperative (see § 1170, subd. (h)), but whose sentence was imposed and itsexecution suspended before October 1, 2011. It was a material term of his pleabargain that the defendant would serve a prison term if his probation was revokedand therefore that term of the plea must be enforced.

19. People v. Montrose (2013) 220 Cal.App.4th 1242, the Fifth Appellate Districtheld that section 1170, subdivision (h), which shifts responsibility for housingcertain felons from state prisons to individual county jails, does not apply topersons whose sentences were first imposed but suspended prior to October 1,2011, even though execution of the sentence occurred after that date when thestatute’s provisions took effect. This is just another Court of Appeal that lined upagainst the opposite conclusion set forth in People v. Clytus (2012) 209Cal.App.4th 100.

20. People v. Fandinola (2013) 221 Cal.App.4th 1415, the Third Appellate Districtheld that the trial court erred in imposing a probation supervision fee in this casewhere appellant was sentenced under the Realignment Act of 2011 (§ 1170, subd.(h)), and was ordered to serve a term of 3 years in county jail, and then serve a 2-year term of mandatory supervision. Here, since appellant was not given a grantof probation, or a conditional sentence, within the meaning of section 1203.1aband 1203.1b, it was error to impose the supervision fee. Nor can the order to paythe cost of probation supervision be considered part of the terms, conditions, andprocedures generally applicable to persons placed on probation, and it is notauthorized by section 1170, subdivision (h)(5)(b)(I).

21. People v. Vega (2014) 222 Cal.App.4th 1374, the Fifth Appellate District heldthat given the fact that Health and Safety Code section 11379.7, subdivision (a)is a sentencing enhancement which expressly requires an additional punishment oftwo years in the state prison when the trier of fact finds that minors were presentin the structure where the defendant manufactured a controlled substance, adefendant subject to the enhancement was not eligible for county jail placement,pursuant to section 1170, subdivision (h), even though he would otherwise havebeen eligible for local jail confinement under within the meaning of the CriminalJustice Realignment Act. (See People v. Torres (2013) 213 Cal.App.4th 1151,1159-1161.)

22. People v. Isaac (2014) 223 Cal.App.4th 143, the First Appellate District, Division1 held that section 1170, subdivision (h) does not authorize the imposition of a"parole revocation restitution fine" under section 1202.45 upon a defendant who,under the realignment Act of 2011, is subject to "post release communitysupervision" and not parole.

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23. People v. Sheehy (2014) 225 Cal.App.4th 445, the Fourth Appellate District,Division 2 held that in his, initially the defendant was granted probation formultiple offenses, one of which required him to register as a sex offender.Ultimately, that probation was revoked, and he was convicted of new non-sexrelated offenses. Nonetheless, based on the reading of section 1170, subdivision(h)(3)(C), his status as a sex offender precluded his being sentenced to local jailrather than to state prison under section 1170, subdivision (h).

24. People v. Scott (2014) 58 Cal.4th 1415, the California Supreme Court held thatsection 1170, subdivision (h), where some felons sentenced on or after October 1,2011 serve their sentences in local jails rather than in state prison, does not applyto those defendants who, prior to that date, had a state prison sentence imposedwith execution of the sentence suspended pending successful completion of a termof probation, and who, after that date, had probation revoked and were ordered toserve their previously imposed term of incarceration. The court rejected theinterpretation of this issue that had been decided in People v. Clytus (2012) 209Cal.App.4th 1001, and adopted the interpretation from People v. Kelly (2013) 215Cal.App.4th 297 and People v. Gipson (2013) 213 Cal.App.4th 1523.

25. People v. Valencia (2014) 226 Cal.App.4th 326, the Second Appellate District,Division 5 held that the defendant’s argument that he received 3 days to fewpresentence custody credits was moot given the fact that he was sentenced in alocal custody within the meaning of section 1170, subdivision (h), and wasreleased during the pendency of his appeal. Had the defendant been released fromstate prison, his issue would not be moot as those credits could affect parolejurisdiction, parole discharge date, or credit against a fine; however thoseconsiderations do not apply to a local jail term within the meaning of section1170, subdivision (h). Health and Safety Code section 11372.5, subdivision (a)mandates imposition of a $50 laboratory analysis fee, plus assessments, for eachqualifying count on which defendant is convicted.

26. People v. Espinoza (2014) 226 Cal.App.4th 635, the Second Appellate District,Division 6 held that Defendant who was originally sentenced under the ThreeStrikes Law to 25-years to life, but then was resentenced after the trial courtgranted his petition under section 1170.126, and even though he was resentencedto 7-years, 4-months in state prison, and he had already served 5,690 days, farexceeding his new sentence, the Court of Appeal held that under section 3451,subdivision (a), (realignment), he was still required by the plain and unambiguouslanguage of that legislation to participate in post-release community supervision(PRCS), and that requirement did not violate the ex post facto, due process, orequal protection clauses.

27. People v. Catalan (2014) 228 Cal.App.4th 173, the Fourth Appellate District,Division 3 held that It was not an abuse of discretion when a court imposed asentence exceeding the recommended term under Criminal Justice RealignmentAct (§ 1170, subd. (h)), after a first violation of mandatory supervision wherein

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the trial court initially had imposed a "hybrid" or "split sentence" (part county jailand part mandatory probation supervision).

28. Williams v. Superior Court (2014) 230 Cal.App.4th 636, the Fourth AppellateDistrict, Division 3, held that in parole revocation proceedings under criminaljustice realignment (§ 1170 and the terms governing parole revocation section3000.08), due process requires a parolee be given an arraignment within 10 daysof an arrest for a parole violation, a probable cause hearing within 15 days of thearrest, and a final hearing within 45 days of the arrest.

29. Wofford v. Superior Court (2014) 230 Cal.App.4th 1023, the Fourth AppellateDistrict, Division 1 held that an offender who is released into the communityunder mandatory supervision, pursuant to the Realignment Act under section1170, subdivision (h), and who was given a "split sentence," in this case 3-years injail and a 5-year suspended sentence, is eligible to apply for a transfer ofsupervision to another state under the Interstate Compact for Adult OffenderSupervision.

30. People v. Rahbari (2014) 232 Cal.App.4th 185, the First Appellate District,Division 5 held that the scope of a victim restitution order, pursuant to section1202.4, in this "split sentence" (where the defendant is sentenced to county jailfollowed by mandatory supervision), in other words, he is not sentenced to stateprison or probation, but with a sentence that includes community supervision,pursuant to section 1170, subdivision (h), is limited to those losses of which thedefendant was convicted. (People v. Woods (2008) 161 Cal.App.4th 1045, 1050[§ 1202.4, subd. (a)(1) limits the scope of victim restitution to the crime he wasconvicted.])

31. People v. Noyan (2014) 232 Cal.App.4th 657, the Third Appellate District heldthat disparate treatment under realignment, section 1170, subdivision (h) of thoseconvicted under section 4573 (knowingly bringing a controlled substance orparaphernalia for consuming a controlled substance into a custodial facility) andsection 4573.5 (knowingly bringing alcohol or noncontrolled substances andparaphernalia for consuming such substances into a custodial facility) violates theequal protection clauses of the United States and California constitutions becausea person convicted of violating section 4573 is eligible to be sentenced to countyjail whereas a person convicted of violating section 4573.5 is sentenced to stateprison, and there is no rational basis for the distinction.

32. People v. Camp (2015) 233 Cal.App.4th 461, the Fourth Appellate District,Division 1, held that the trial court did not err when it permitted appellant to bereleased to an immigration enforcement agent after he had served 14 months of a28 month "split sentence" (see § 1170, subd. (h)(5)(B)(i)), based on a negotiatedplea. Pursuant to the deal, appellant was to served another 14 months onmandatory supervision. The Court of Appeal upheld the trial court's ruling that hebe released to the immigration officer, rather than serving the 14 months on

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mandatory supervision. Section 1170, subdivision (h)(5)(B)(i) indicates that aperiod of mandatory supervision may be terminated by court order; and there is nolimitation on the court's order. Additionally, nothing in section 1203.2,subdivisions (a) and (b), nor section 1202.3, which governs proceedings to revokeor modify mandatory supervision, contains any language that would require acourt to impose the suspended portion of the sentence upon early termination ofmandatory supervision.

33. People v. Mendoza (2015) 241 Cal.App.4th 764, the Fourth Appellate District,Division 2 held that the trial court did not properly act for a demand forsentencing pursuant to section 1203.2a. Appellant was placed on probation inRiverside County, and then some time later committed another criminal act in SanBernardino County, where she was ordered to serve 16 months imprisonment, inthe county jail. (§ 1170, subd. (h).) Section 1203.2a, which allows a probationerwho is later sentenced to prison in another case to forego probation and besentenced in absentia in the later case, thereby preserving the potential forconcurrent time in the two cases, does not apply where the later conviction is amisdemeanor, but does apply where it is a felony for which the defendant issentenced to county jail under realignment. The legislative purpose is to possiblyallow a defendant to serve time on both sentences concurrently. The purpose ofsection 1203.2a is to prevent inadvertent consecutive sentences which woulddeprive a defendant of the benefit of section 669, providing that the sentence shallbe concurrent unless the court expressly orders otherwise. Finally, a felonysentence under realignment are felony prison sentences, ordered to be served incounty jail rather than in state prison. And it is proper for the defendant to besentenced in absentia when so requested.

34. People v. Butler (2016) 243 Cal.App.4th 1346, the Second Appellate District,Division 5 held that the trial court erred in imposing a restitution revocation finewhere the defendant was convicted of a felony violation of section 69, and amisdemeanor violation of section 236, and was sentenced to concurrent terms incounty jail under the Criminal Justice Realignment Act of 2011, section 1170,subdivision (h)(5)(B), with no period of post-release supervision, parole, ormandatory supervision, he was not subject to a restitution revocation fine undersection 1202.45, subdivisions (a) or (b).

12. DOES THE RECORD ESTABLISH THAT THE PRIOR WAS A STRIKE IF ITCAN BE COMMITTED IN MULTIPLE WAYS

1. People v. Watts (2005) 138 Cal.App.4th 959, the Fifth Appellate District held thatin a challenge to the prior, wherein the defendant had previously pleaded guilty tothe prior offense, the court within the meaning of People v. Cortez (1999) 73Cal.App.4th 276 and People v. Rodriguez (1998) 17 Cal.3d 253, held that on anappeal to challenge a finding that a prior conviction was a strike, where the priorconviction is for an offense which can be committed in more than one way, one ormore of which would not qualify as a strike, and “if it cannot be determined from

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the record that the offense was committed in a way that would make it a strike, areviewing court must presume the offense was not a strike. Here the prior offensewas for a violation of section 12031, subd. (a)(2)(C), and for it to be a strike, itmust be on the basis that the offense as committed constituted a felony violationof section 186.22. Pursuant to People v. Robles (2000) 23 Cal.4th 1106, section12031, subd. (a)(2)(C), was reasonably susceptible to two interpretations. Underthe “reasonable construction” which the Robles court rejected, the elements ofsection 12031, subd. (a)(2)(C) include only one of the elements of section 186.22,subd. (a), and as so construed, it cannot qualify as a strike. Since the prior was byway of a plea, the court remanded the matter to give the prosecution theopportunity to try the prior. (See People v. Barrigan (2004) 32 Cal.4th 238;People v. Cortez, supra, 73 Cal.App.4th at pp. 283-284.)

13. PROBATION ISSUES

A. DIRECT FILING ON A MINOR; PROBATION REPORT NEEDED

1. People v. Garcia (2004) 118 Cal.App.4th 987, the Fifth Appellate Districtheld that the trial court is not required to receive in evidence, read, andconsider a social study by the probation officer, within the meaning ofsection 1170.19, subd. (a)(4), prior to imposing an adult sentence on aminor against whom charges were directly filed under the discretiongranted the district attorney by Proposition 21.

B. HARVEY WAIVER

1. People v. Beagle (2004) 125 Cal.App.4th 415, the Fifth Appellate Districtheld that the rule expressed in People v. Harvey (1979) 25 Cal.3d 754,which prohibits the negative consideration at sentencing of dismissedcharges, also applies to probation conditions. Here, the court erroneousadded drug conditions of probation after a drug charge had been dismissedas part of a plea negotiation.

2. People v. Munoz (2007) 155 Cal.App.4th 160, the Third Appellate Districtheld that where the defendant pleaded guilty to attempted murder andadmitted possessing firearm during commission of offense in exchange fordismissal of numerous other charges, and the court, in sentencing thedefendant to the upper terms on the offenses, relied on defendant’svoluntary Harvey waiver. (See People v. Harvey (1979) 25 Cal.3d 754.) The defendant stipulated to the truth of facts relevant to upper terms andallegations underlying the dismissed charges; as a result, the sentence didnot violate defendant’s Sixth Amendment rights to a jury trial and proofbeyond a reasonable doubt under Cunningham.

3. People v. Linarez REVIEW DISMISSED; formerly at: (2007) 155Cal.App.4th 1393, the Third Appellate District held that wherein the minor

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agreed to a waiver under People v. Harvey (1979) 25 Cal.3d 754, whereinappellant stipulated that the court could consider his entire prior criminalhistory and factual background of this case, including any dismissed orstricken charges, the court found not Cunningham or Black II error.

4. People v. Martin (2011) 51 Cal.4th 75, the Supreme Court held thatpursuant to the rationale of People v. Harvey (1979) 25 Cal.3d 754 factorsunderlying a charged criminal offense that is dismissed as part of a pleabargain cannot be considered in setting conditions of probation unless thedefendant expressly consented to the conditions as he did in this case.

5. People v. Ochoa (2011) 192 Cal.App.4th 562, the Third Appellate Districtheld that section 1202.05, which prohibits visitation to a defendantconvicted of certain sex crimes and who went to state prison for crimesagainst those victims, was not applicable to the defendant when thosecounts were dismissed, even with a waiver pursuant to People v. Harvey(1979) 25 Cal.3d 754, for which he was not sentenced to prison. This istrue even though, pursuant to the Harvey waiver, restitution was paid tothe victims.

6. People v. Snow (2012) 205 Cal.App.4th 953, the Third Appellate Districtheld that the ruling set forth in People v. Harvey (1979) 25 Cal. 3d 754,that charges dismissed as part of a plea bargain cannot be considered forsentencing purposes in the absence of a waiver by the defendant, does notapply to an order requiring restitution for an uncharged offense as acondition of probation. Such condition may be imposed as long as it is notprecluded by the plea agreement and is otherwise proper. Requiring thedefendant convicted of a domestic violence offense to pay the victim’sdental bill resulting from a separate, uncharged assault was a properprobation condition because it was reasonably related to the offense ofconviction and to the defendant’s rehabilitation.

7. People v. Weatherton (2015) 238 Cal.App.4th 676, the First AppellateDistrict, Division 2, held that where the defendant, gave a "Harvey waiver," thereby stipulating to restitution could be awarded on a charge that wasdismissed as a result of a plea bargain, gave up his right to claim thatvictim was not entitled to restitution on the ground that the defendantacted in self-defense. The defendant had an opportunity to dispute theamount, but he elected not to do so. A deal is a deal.

C. PROBATION ELIGIBILITY

1. People v. Lewis (2004) 120 Cal.App.4th 837, the Fourth AppellateDistrict, Division One, held that the defendant was not ineligible forprobation under section 1203, subd. (e)(3) and is not presumed ineligiblefor probation absent an explicit finding by the court that the defendant

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“willfully” inflicted great bodily injury, not those whose actions merelycaused great bodily injury. The court also found that the trial court, andnot the jury may make the factual determination necessary to determine ifappellant is eligible for probation. (See People v. Dorsch (1992) 3Cal.App.4th 1346, 1351.) A sentence of 25 years to life in prison forassaulting a child with force likely to cause great bodily injury andresulting in death does not constitute cruel and/or unusual punishment. (See People v. Norman (2003) 109 Cal.App.4th 221, 230.)

2. People v. Sanghera (2006) 139 Cal.App.4th 1567, the Third AppellateDistrict found that the court did not abuse its discretion in denyingprobation where the defendant had to establish exceptional circumstancesunder rule 4.413(c). (See People v. Serrato (1988) 201 Cal.App.3d 761,763.)

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D. WOBBLER REDUCED TO A MISDEMEANOR; SECTION 17, SUBDIVISION(B); STRAIGHT FELONY CANNOT BE REDUCED

1. People v. Gilbreth (2007) 156 Cal.App.4th 53, the First Appellate District,Division 3, held that the defendant could not be convicted of crime ofpossession of firearm by convicted felon (§ 12021), where his predicatefelony conviction had been reduced to a misdemeanor. Once a wobblerhas been reduced to a misdemeanor, it is a misdemeanor for all times. (§ 17; Gebremicael v. California Com. on Teacher Credentialing (2004)118 Cal.App.4th 1477; see also People v. Banks (1959) 53 Cal.2d 370,383-387.)

2. People v. Mauch (2008) 163 Cal.App.4th 669, the Fourth AppellateDistrict, Division 3 held that the offense of cultivation of marijuana(Health & Saf. Code § 11358), punishable “by imprisonment in stateprison,” is a straight felony rather than a “wobbler;” therefore, it was errorto reduce the offense to a misdemeanor under section 17, subdivision (b)as a part of appellant’s plea. Appellant is permitted to withdraw his guiltyplea. The legislature has the sole authority to determine whether anoffense is a straight felony, a wobbler, a misdemeanor or an infraction. (People v. Martinez (1999) 76 Cal.App.4th 489, 494.)

3. People v. Love (2008) 166 Cal.App.4th 1292, the Third Appellate Districtheld that a defendant who ordered a gift card by means of a stolen creditcard number “use[d]” the credit card within the meaning of section 484g,subdivision (a), and was thus guilty of a completed offense under thatsubdivision, even though the gift card went unissued after investigatorsinformed the retailer that it was ordered with a stolen card. Pursuant toPeople v. Garza (2005) 35 Cal.4th 866, 881, appellant cannot be convictedfor both using a stolen credit card to obtain property and for receiving thesame item as stolen property (sec. 496). Finally, the failure of jury tomake findings as to value of property obtained requires that convictions ofgrand theft and embezzlement be reduced to misdemeanors since the jurydid not conclude that the value of the property was over $400.

4. People v. Barkley (2008) 166 Cal.App.4th 1590, the Sixth AppellateDistrict held that, the defendant suffered a prior “wobbler” conviction forassault was a “strike” wherein he was placed on probation with a jail term,and all of the orders made at the sentencing hearing, including ordersregarding firearms and blood and saliva samples, were consistent withfelony probation and inconsistent with the imposition of a misdemeanorjail sentence. The court distinguished People v. Glee (2000) 82Cal.App.4th 99, where, when imposing sentence, the court placedappellant of summary probation. One can only receive summary probationfor a misdemeanor.

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5. People v. Myers (2009) 170 Cal.App.4th 512, the Second AppellateDistrict, Division 6 held that where the trial court suspended imposition ofsentence for the defendant’s conviction for possession of a controlledsubstance under Health and Safety Code section 11350, subdivision (a),and granted him Proposition 36 probation, the defendant’s convictioncould not be reduced to a misdemeanor, even though defendant did notserve any prison time, because the statutory language of Health and SafetyCode section 11055 does not authorize an alternative to imprisonment. Inmost situations, the defendant’s conviction is erased from the books, andhe does not have to disclose it. However, for certain government jobapplications the fact of the conviction may have to be disclosed that he hada felony even though he successfully completed drug treatment probation,and as a result, he might suffer different consequences than one who hascommitted a misdemeanor does not constitute a denial of equal protection.

6. People v. Feyrer (2010) 48 Cal.4th 426, the California Supreme Courtheld that the trial court has the discretion to reduce a wobbler to amisdemeanor despite the defendant's admission of a great bodily injuryenhancement (§ 12022.7, subd. (a)), that could attach to a later felonysentence, if imposed. The court initially suspended imposition of sentenceand had placed appellant on probation. The trial court terminatedprobation, but would not reduce the matter to a misdemeanor. There is amajor difference in placing appellant on probation without execution ofsentence suspended (see People v. Howard (1997) 16 Cal.4th 1081;People v. Wood (1998) 62 Cal.App.4th 1262, 1265-1266 [cannot reduce amatter to a misdemeanor when sentence was executed and thensuspended]), and imposition of sentence being suspended, where the courtnever sentenced appellant and had all of the sentencing options still open.(See People v. Glee (2000) 82 Cal.App.4th 99, 103; People v. Kunkel(1985) 176 Cal.App.3d 46, 55 ] [if the court declares the offense to be amisdemeanor, any enhancement applicable only to felonies, such as a12022.7, is simply not imposed an ceases to have any significance].) When a defendant is convicted of a wobbler, and is granted probationwithout imposition of sentence, the offense is “deemed” a felony, unlesssubsequently reduced to a misdemeanor pursuant to section 17,subdivision (b).

7. People v. Lucas (2013) 214 Cal.App.4th 707, the Fourth AppellateDistrict, Division 3 held that a serious felony prior conviction, within themeaning of section 667, subdivision (a) is added to the current sentence,and is treated as a serious felony, despite the previous reduction of thatoffense to a misdemeanor pursuant to section 17, subdivision (b)(3). Similarly, the Court of Appeal held that the prior conviction can act as astrike within the meaning of the Three-Strike Law, since the nature orcharacter of the offense is determined at the time of sentence, (see § 667,subd. (d); People v. Franklin (1997) 57 Cal.App.4th 68, 73; see also

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People v. Sipe (1995) 36 Cal.App.4th 468, 478 [whether a prior convictionis a felony is determined on the date of the conviction, so reduction to amisdemeanor, later on is of no relevance to its classification as a felony.])

8. People v. Park (2013) 56 Cal.4th 782, the California Supreme Court heldthat when the trial court has previously reduced a wobbler, in this case anassault with a deadly weapon to a misdemeanor, under section 17,subdivision (b)(3), that offense no longer qualifies as a prior serious felonywithin the meaning of section 667, subdivision (a). The trial courttherefore erred when it imposed the 5-year enhancement to enhance asubsequent felony sentence under Three Strikes Law. Additionally, thecourt specifically held that the Court of Appeal’s reliance on this court'sruling in People v. Feyrer (2010) 48 Cal.4th 426, 435-441, is misplaced.

9. People v. Culbert (2013) 218 Cal.App.4th 184, the Second AppellateDistrict, Division 6 struck, based on People v. Park (2013) 56 Cal.4th 782,the prior-serious-felony conviction enhancement, (§ 667, subd. (a)(1)), andthe convictions for possession of firearm and ammunition by a convictedfelon, (see former §§ 12021 and 12316), since the prior conviction wasreduced to a misdemeanor under section 17, subdivision (b).

10. People v. Willis (2013) 222 Cal.App.4th 141, the Second AppellateDistrict, Division 4 held that the trial court erred when it extended thedefendant’s probationary period beyond a maximum of three years, sincein an earlier proceeding, the court had classified his "wobbler" as amisdemeanor. The court’s order of "summary probation" for his offense,indicated that it categorized the offense as a misdemeanor pursuant tosection 17. (See People v. Park (2013) 56 Cal.4th 782, 795 [a felonyautomatically converts to a misdemeanor after a judgment imposing apunishment other than state prison or imprisonment in county jail under §1170, subd. (h).]) The trial court did not retain the discretion to impose afelony sentence at a later date since the court made no statement indicatingan intent to preserve such. (People v. Glee (2000) 82 Cal.App.4th 99, 105.)Felony probation conditions imposed pursuant to section 296 did notindicate that the court intended to classify the underlying offense as afelony since section 296, subdivision(a)(5) allows a defendant to agree tosuch conditions as part of a plea in a non-qualifying, misdemeanor offense.

11. People v. Superior Court (Jalalipour) (2015) 232 Cal.App.4th 1199, theFourth Appellate District, Division 4 held that the trial court erred inreducing a "wobbler" under section 17, subdivision (b)(3) after thepreliminary hearing, and before the defendant's plea or trial, in the absenceof the prosecution's consent. The court's permitting the defendant to entera plea before his guilt is adjudicated constituted an unlawful judicial pleabargain. (See People v. Silva (1995) 36 Cal.App.4th 231, 233; see alsoPeople v. Booker (1994) 21 Cal.App.4th 1517, 1520.)

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12. People v. Tran (2015) 242 Cal.App.4th 877, the Third Appellate Districtheld that the trial court did not err in denying the defendant's motion toreduce his "wobbler," from a felony to a misdemeanor under section 17,subdivision (b)(5). In denying the motion following the defendant'ssuccessful completion of probation pursuant to section 17, the trial courtproperly considered the facts underlying the conviction, (see People v.Smith (1968) 259 Cal.App.2d 868, 873), and the postplea probation report. The trial court’s suggestion at the time of the denial of the previous section17 motion that that the defendant would receive the reduction, if he spent"another year out of trouble," was not an implied promise and was notbinding on this court. The defendant was not entitled to have his felonyconviction declared a misdemeanor upon successful completion ofprobation. (People v. Leach (1937) 22 Cal.App.2d 525, 527) Relief undersection 17 is discretionary. (People v. Superior Court (Alvarez) (1997) 14Cal.4th 968, 977.)

E. ERRORS IN PROBATION REPORT

1. People v. Eckley (2004) 123 Cal.App.4th 1476, the Fifth Appellate Districtheld that in denying probation and imposing a prison term, the court’sreliance on a probation report, two psychological reports, and a letter froma prison administrator, some of which contained material, factualmisstatements, necessitated a remand for a new probation and sentencinghearing. Such a hearing requires fundamental fairness (see People v.Peterson (1973) 9 Cal.3d 717), and the inaccurate statements deprived thedefendant of that hearing, therefore, the matter had to be remanded for anew and fair hearing.

F. RESTITUTION PAYMENTS, PROBATION, ACQUITTED OF OFFENSE

1. People v. Kleinman (2004) 123 Cal.App.4th 1476, the Second AppellateDistrict, Division 2 held that an order that convicted hit-and-run driver payrestitution, originally imposed as a condition of probation, remained ineffect after probation was revoked and the defendant was sentenced toprison. The Court of Appeal held that the defendant was not permitted tobe rewarded by virtue of his violation of probation.

2. People v. Chun (2007) 155 Cal.App.4th 170, the Third Appellate Districtheld that where the defendant was convicted of street terrorism (§ 186.22),based on the shooting, and was properly ordered to pay restitution to allvictims of that offense, including those against whom he was alleged tohave committed other crimes of which he was acquitted. The courtdistinguished, somehow finding a difference without a difference, Peoplev. Percelle (2005) 126 Cal.App.4th 164, 180-181 [a defendant should notpay restitution for a crime for which he was acquitted].

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3. People v. Guiffre (2008) 167 Cal.App.4th 430, the Third Appellate Districtheld that the court erred when it imposed a second restitution fine undersection 1202.4, subdivision (b), after probation had been revoked, ratherthan a probation revocation fine under section 1202.44, after probationwas revoked. (See People v. Chambers (1998) 65 Cal.App.4th 189, 822.)

4. In re K.F. (2009) 173 Cal.App.4th 655, the Sixth Appellate District heldthat objections to the sufficiency of the evidence used to justify specificitems of restitution are deemed preserved for appeal. For restitutionpurposes, a letter from the health maintenance organization’s (HMO’s)agent to the victim, advising that the victim was indebted to the HMO for“billed charges” in a specified amount, constituted substantial evidencethat these charges were “incurred” by the victim. “Explanation ofBenefits” from HMO, listing a specified amount of “Ambulance Charges,”did not constitute substantial evidence that victim incurred those chargeswhere it bore the prominent legend, “This is not a bill”; showed zeroes inthe column marked “Coinsurance/Copayment”; had no entry in columnmarked “Amount Paid”; and informed victim that “Your Obligation” was“0.00.” Where victim continued to be paid by his employer whilerecovering from injuries only by depleting his sick leave, such depletionrepresented a loss to him and it was not error for court to order paymentfor period of sick leave as restitution. State disability payments to victimdo not constitute a loss to victim, so it was error for court to include thoseamounts in its restitution order.

5. People v. Holman (2013) 214 Cal.App.4th 1438, the Fourth AppellateDistrict, Division 2 held that the trial court may suspend any outstandingrestitution fines when it "expunges" a criminal conviction pursuant tosection 1203.4. The defendant had several different cases for which shewas convicted, put on probation, violated probation, and then probationwas reinstated. Finally she successfully completed a drug treatmentprogram, and the court terminated probation early. The court properlydismissed all of the pending cases, and suspended or dismissed all of thefines imposed, including any restitution fines within the meaning ofsection 1202.4, that had not been paid.

G. DIRECT RESTITUTION, A VICTIM OR NOT

1. People v. Martinez (2005) 36 Cal.4th 384, the California Supreme Courtheld that the court’s order that the defendant reimburse the state agency forits costs of cleaning up a drug lab site, was unauthorized by the generalrestitution statute, section 1202.4, subd. (f), as the agency was not a “directvictim” of the defendant’s criminal conduct. The exclusive statutory basisfor reimbursement to the agency under those circumstances is Health andSafety Code sections 11470.1 and 11470.2, which establishes specialprocedures by which the agency may seek recovery.

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2. In re Tommy A. (2005) 131 Cal.App.4th 1580, the Fourth AppellateDistrict, Division 1 held that the payment by vehicle owner’s insurancecompany for damages caused by the minor, who used the vehicle withoutthe owner’s permission did not come “directly from” the offender/minorwithin the meaning of Welfare and Institutions Code section 730.6, subd.(a)(1) [the victim must receive payment from the minor for the loss], soneither that payment nor victim’s release of civil liability relieved theminor of the statutory obligation to pay the restitution for the hit and runaccident. The court distinguished People v. Bernal (2002) 101Cal.App.4th 155, based on the statutory interpretation.

3. People v. Rubics (2006) 136 Cal.App.4th 452, the Fourth AppellateDistrict, Division one held that do to the fact that involvement in anaccident causing the death or injury is an element of the crime of felonyhit-and-run (see Veh. Code § 20001, subd. (a)), the funeral expensesresulting from the accident are an element of restitution for which thedefendant may be held responsible. The court’s order that order that thedefendant pay funeral expenses as an element of direct victim restitutionwas not an abuse of discretion where the defendant made an unsafe lanechange, and the jury found this to be a cause of the accident. (See Peoplev. Carbajal (1995) 10 Cal.4th 1114, 1124 [applicable even thoughprobation granted and not state prison as in this case].) This is in spite ofthe fact that the defense presented evidence, including expert opiniontestimony, suggesting that the accident may have been caused by thevictim’s excessive speed and/or recent marijuana use.

4. In re Dina V. (2007) 151 Cal.App.4th 486, the First Appellate District,Division 4 held that restitution can be based on “either” replacement costor the actual cost of repairing the property within the meaning of Welfareand Institutions Code section 730.6. (See In re Brittany L. (2002) 99Cal.App.4th 1381, 1391-1392.) In People v. Yanez (1995) 38 Cal.App.4th1622, 1624-1625, the Fourth Appellate District, Division 2, held thatrestitution cannot be more than the loss to the property. The restitution islimited to the cost of repair or replacement value, which ever is less. Thiscourt failed to follow Yanez.

5. People v. Giordano (2007) 42 Cal.4th 644, the California Supreme Court,held that section 1202.4, governing direct victim restitution, authorizes acourt to require a convicted defendant to compensate the spouse of adeceased victim for his or her future economic losses attributable to thedeceased victim’s death. In determining amount of restitution to spouse ofthe deceased victim for future economic losses, the court may considersuch factors as the earning history of the deceased spouse, the age of thesurvivor and decedent, and the degree to which the decedent’s incomeprovided support to the survivor’s household as well as any factorsrelevant to the individual case and is not limited to amounts that would

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otherwise be recoverable from Restitution Fund. The court’s method ofcalculating restitution, by averaging the decedent’s annual earnings for thelast three years of his life and multiplying by five, was imprecise, but didnot amount to an abuse of discretion where the decedent had been thefamily’s main support during the marriage, although the spouse hadworked as a housekeeper for the last two years.

6. People v. Short (2008) 160 Cal.App.4th 899, the Third Appellate Districtheld that where the defendant was convicted of driving under influence ofalcohol and causing great bodily injury was driving his employer’s vehiclein the scope of his employment at time crime occurred, and victimreceived funds from employer’s insurer as settlement of a civil actionagainst the defendant and employer because the defendant was covered bythe terms of the employer’s insurance policy, the settlement was deemed tobe restitution directly from the defendant; therefore the court erred indenying the defendant’s request to use settlement funds to offset 1victimrestitution order in criminal action. (See People v. Bernal (2002) 101Cal.App.4th 155, 165-168; see also People v. Jennings (2005) 128Cal.App.4th 42, 53-57.)

7. People v. Woods (2008) 161 Cal.App.4th 1045, the First AppellateDistrict, Division 1 held that the court erred in ordering the defendant topay restitution to the family of a murder victim even though the defendantwas only convicted as an accessory after the fact and given the fact he wassentenced to state prison, and since his “criminal conduct” did not result ineconomic loss. (See People v. Lai (2006) 138 Cal.App.4th 1227, 1247.) Had appellant been granted probation, the restitution could have beenordered. (People v. Carbajal (1995) 10 Cal.4th 1114, 1121.)

8. People v. Slattery (2008) 167 Cal.App.4th 1091, the Third AppellateDistrict held that the trial court erred when it ordered appellant, who pledno contest to one count of inflicting injury on an elder adult, to payrestitution to the hospital who treated victim because the hospital was nota direct victim of offense. (See People v. Martinez (2005) 36 Cal.4th 384[re: who is a direct victim].) Additionally, appellant did not forfeit claimby failing to object to restitution order at sentencing because defendant’sclaim fell within “unauthorized sentence” exception.

9. People v. Bartell (2009) 170 Cal.App.4th 1258, the Third AppellateDistrict held that a bank is a direct victim, entitled to victim restitution,when a person forges checks drawn on that bank and bank absorbs theloss. Since the victim’s account whose checks were forged was notdebited (see Cooper v. Union Bank (1973) 9 Cal.3d 371, 377, fn. 5 [if thebank does debit the customer’s account, the customer can compel the bankto recredit that account]), the bank was the only victim, and entitled torestitution. (See People v. Crow (1993) 6 Cal.4th 952, 957.)

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10. People v. Hume (2011) 196 Cal.App.4th 990, the First Appellate District,Division 1 held that the trial court did not err in failing to reduce thedefendant and former attorney's amount of restitution that the victimsreceived from the California State Bar Client Security Fund (CSF). Thecourt reasoned that although trial courts normally will credit a defendantfrom payments made to a victim from the defendant's own insurancecompany, the payments the CSF made to the victims are not equivalent toa defendant's own insurance company pursuant to People v. Bernal (2002)101 Cal.App.4th 155, 165-168; see also People v. Hamilton (2003) 114Cal.App.4th 932; People v. Jennings (2005) 128 Cal.App.4th 42, 53-57, orPeople v. Short (2008) 160 Cal.App.4th 899.

11. People v. Stanley (2012) 54 Cal.4th 734, the California Supreme Courtheld that when a defendant damages a victim's vehicle, the trial court didnot abuse its discretion by awarding victim, as restitution underProposition 8, the full cost of repairing her vandalized truck, an amountwell in excess of what she paid for it, where it was unlikely she couldreplace the truck for what she paid for it. (See In re Dina V. (2007) 151Cal.App.4th 486.)

H. DOES THE IMPOSITION OF A RESTITUTION FINE VIOLATE ADEFENDANT’S PLEA AGREEMENT IF NOT EXPRESSED IN THEAGREEMENT?

1. People v. Crandell (2007) 40 Cal.4th 1301, the California Supreme Courtheld that the court’s imposition of a $2,600 restitution fine, which was notstated by the prosecutor when he recited parties plea agreement, did notviolate the negotiated disposition where the court, before takingdefendant’s plea, had accurately advised him he would “have to pay arestitution fund fine of a minimum of $200, a maximum of $10,000" andascertained that prosecution had not made “any other promises” beyondthat he would be sentenced to 13 years in prison. The court distinguishedPeople v. Walker (1991) 54 Cal.3d 1013, where it was not mentioned inthe negotiations nor before taking the plea, like it was, by the court, in thiscase.

I. AGGREGATION OF RESTITUTION FINE PER CASE, NOT PERSENTENCING AND COURT SECURITY FEE ISSUES

1. People v. Schoeb (2005) 132 Cal.App.4th 861, the Third Appellate Districtheld that it was not error to impose multiple restitution fines (see § 1202.4,subd. (b)), where there are multiple “cases” that were not consolidated,even though the defendant was sentenced in one proceeding. (See Peoplev. Enos (2005) 128 Cal.App.4th 1046.) The Court of Appeal additionallyfound that where a defendant is convicted in multiple cases, some ofwhich involved multiple counts, trial court was required to impose a

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separate court security fee (see § 1465.8) for each count rather than merelyone fee for each case.

2. People v. Soria (2010) 48 Cal.4th 58, the California Supreme Court heldthat if cases are not formally consolidated and separate pleas are entered inseparately charged cases, “every case,” as stated in sections 1202.4 and1202.45, plainly means that each case filed against a defendant, even ifthose separately filed cases are disposed of at a single hearing under a pleabargain.

J. EXTENSION REVOCATION OF THE PROBATIONARY PERIOD ORPAYMENT AS A CIVIL REMEDY IF PROBATION TERMINATED

1. People v. Jackson (2005) 134 Cal.App.4th 929, the Second AppellateDistrict, Division 8 held that it is clear that section 1203.2, subd. (e)permits the extension of the probationary period in excess of the originalmaximum length where the court finds the defendant in violation ofprobation, formally revokes probation prior to the expiration of theprobationary period, and sets aside the revocation. (See People v.Medeiros (1994) 25 Cal.App.4th 1260, 1266-1267.) However, the courtmust find that the defendant has the ability to pay and willfully failed to doso, or the order violates due process. (Ibid.) Or, at a minimum, the courtmust indicate on the record that it considered whether the defendant wasable to pay the restitution an whether he or she willfully failed to pay. Here, there is no such finding by the court, and to the court would havehad to extend probation for another 13 years to pay off the amount at therate determined the defendant was able to pay. The court found that theremaining debt be converted to a civil judgment, and that probation isterminated.

2. People v. Williams (2007) 156 Cal.App.4th 898, the Fourth AppellateDistrict, Division 1 held that where appellant/probationer entered anegotiated plea, pursuant to a specific sentence on his new case and to amidterm consecutive sentence in the case in which he was placed onprobation, trial court had jurisdiction to impose the negotiated sentencenotwithstanding pendency of defendant’s appeal in the earlier case (Peoplev. Cunningham (2001) 25 Cal.3d 926, 1044 [a unauthorized sentence canbe corrected at any time]), and her a sentence which would beunauthorized can be fixed prior to it becoming unauthorized. Furthermore, the 120-day time limit under section 1170, subd. (d) forrecalling and modifying the original sentence of probation is inapplicable. Pursuant to People v. Mendez (1999) 19 Cal.4th 1084, 1094, and People v.Panizzon (1996) 13 Cal.4th 68, 74, the appellate court had no jurisdictionto entertain appellant’s claim of sentencing error where the allegedlyerroneous application of sentencing rules was based on a negotiated pleaand defendant failed to obtain a certificate of probable cause from trial

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court on a certificate issue. (People v. Mendez, supra, 19 Cal.4th atp. 1088 [certificate of probable cause requirement is limited to“certificate” issues].) “Noncertificate” issues, which do not require acertificate of probable cause, include postplea matters that do notchallenge the validity of the plea, including attacks on the court’sdiscretionary sentencing choices left open by the plea agreement. (Ibid.)

3. People v. Mendoza (2009) 171 Cal.App.4th 1142, the Sixth AppellateDistrict held that the trial court does not have authority, while a defendantis still on probation, to reduce a county jail term imposed as a condition ofprobation, when the defendant has already served the term. A court canmodify a term of probation with a showing of a change of circumstances. (People v. Cookson (1991) 54 Cal.3d 1091, 1093-1095.)

4. People v. Seymour (2015) 239 Cal.App.4th 1418, the Sixth AppellateDistrict held that the defendant’s failure to fully comply with the paymentof $5,726.97 to the Victim Compensation an Government Claims Board(VCGCB), did permit the trial court to deny the relief otherwise mandatedupon completion of probation by section 1203.4, subdivision (a). TheCourt of Appeal ordered that the petition under section 1203.4 be granted,and the defendant released from probation. (See People v. Holman (2013)214 Cal.App.4th 1438 [it releases the defendant from many disabilities,but not all]; see also People v. Butler(1980) 105 Cal.App.3d 585, 587;People v. Hawley (1991) 228 Cal.App.3d 247.) The court made it clearthat appellant still owes the money to the VCGCB, and it could be pursuedas a civil remedy. (See In re Timothy N. (2013) 216 Cal.App.4th 725,738.)

K. PROBATION REVOCATION PROCEEDINGS

1. People v. Shepherd (2007) 151 Cal.App.4th 1193, the First AppellateDistrict, Division 3 held that the hearsay testimony by a probation officerat the probation revocation hearing to the effect that substance abuseprogram official told the witness that the defendant had been asked toleave program after testing positive for alcohol was erroneously admitted(see People v. Arreola (1994) 7 Cal.4th 1144, 1148-1152; see also Peoplev. Winson (1981) 29 Cal.3d 711), even under more lenient standard ofadmissibility applicable at such hearings (see People v. Maki (1985) 39Cal.3d 707), where no justification was offered for declarant’s absence, noother evidence corroborated her statements, it was unclear from thetestimony whether declarant observed the alleged violation or was simplyreporting what she had been told by other unidentified persons at theprogram, and defendant denied having consumed alcohol while in theprogram.

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2. People v. Stanphill (2009) 170 Cal.App.4th 61, the Third AppellateDistrict held that the Sixth Amendment confrontation clause does notapply in probation revocation proceedings as it only applies in criminalprosecutions, and a probation revocation hearing is not a criminalprosecution. (People v. Rodriquez (1990) 51 Cal.3d 437, 441, 445, 447.)

3. People v. Cervantes (2009) 175 Cal.App.4th 291, the Second AppellateDistrict, Division 6, held that where the trial court was aware that thedefendant was an undocumented alien when it granted probation, and thenhe was unable to appear for a 30-day review hearing because he was in thecustody of immigration authorities, the trial court erred in finding thedefendant in violation of probation. A court may not revoke probationunless the evidence supports a conclusion that the probationer’s conductconstituted a willful violation of the terms and conditions of probation. (People v. Galvan (2007) 155 Cal.App.4th 978, 982.)

4. People v. Black (2009) 176 Cal.App.4th 145, the Fourth AppellateDistrict, Division 2 held that the court when considering sentence afterprobation had been granted, violated, reinstated, and then violated again,can consider the conduct on probation from the original grant of probationand the previous reinstatement of probation in determining what sentenceshould be imposed, and is not limited to the conduct at the time of theoriginal grant of probation under California Rules of Court, Rule4.435(b)(1). (See People v. Harris (1990) 226 Cal.App.3d 131, 143-144;distinguished from People v. Colley (1980) 113 Cal.App.3d 870.)

5. People v. Burton (2009) 177 Cal.App.4th 194, the First Appellate District,Division 4 held that once expiration of a probation period is tolled, then aslong as a probationer is found to have committed some probation violationduring the probation period, as charged in a petition filed during thatprobation period, a trial court retains jurisdiction to revoke probation afterexpiration of the probation term even if tolling was based on a violationthat was ultimately unproven.

6. People v. Martinez (2015) 240 Cal.App.4th 1006, the Fifth AppellateDistrict held that the trial court must, upon revocation and termination ofprobation, order a previously suspended sentence, execution of sentencesuspended (ESS), on the conviction into effect even when that sentencewas a subordinate term imposed consecutively to a principal term that nolonger exists. (See § 1203.2, subd. (c); Rule 4.435(b)(2).)

L. PROBATION DENIAL UNDER SECTION 1203.066

1. People v. Wills (2008) 160 Cal.App.4th 728, the Fourth Appellate District,Division 1 held that where a defendant was convicted of child molestationunder section 288, subd. (a), and was found under section 1203.066, subd.

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(a)(8) to have engaged in substantial sexual contact with a victim under14, rendering him presumptively ineligible for probation unless he met“all” criteria specified in section 1203.066, subd. (c), including therequirement that probation be in best interests of victimized “child,” thecourt had no authority to grant probation because the victim was no longera child at time of sentencing, and court did not err to extent it deniedprobation without expressly considering whether probation would havebeen in victim’s best interests at time of molestation.

M. DEFERRED ENTRY OF JUDGMENT SECTION 1000

1. People v. Kirk (2006) 141 Cal.App.4th 715, the Fourth Appellate District,Division 3, held that a guilty plea, even if sentence has not been imposed,constitutes a prior conviction for purposes of diversion, or deferred entryof judgment, within the meaning of section 1000, subd. (a)(1), whichprecludes a grant of drug diversion to a defendant previously convicted ofa drug offense.

2. People v. Ochoa (2009) 175 Cal.App.4th 859, the Third Appellate Districtheld that the trial court erred in finding that the defendant’s conviction forpossessing less than an ounce of marijuana (Health and Saf. Code § 11357,subd. (b), more than two years prior to the current offense of possession ofcocaine and being under the influence, rendered him ineligible for deferredentry of judgment under section 1000, since the marijuana conviction“washes out” or is a nullity after the two year period. Therefore, appellantis eligible for probation under section 1000, deferred entry of judgment.

3. People v. Trask (2011) 191 Cal.App.4th 387, the Third Appellate Districtheld that when the court grants deferred entry of judgment under section1000 et. sec., and section 1211, it may not terminate a defendant from suchdiversion based solely on his inability to pay the fees of the program towhich he has been referred. The defendant must be referred to a programthat provides no-cost drug diversion under section 1000, subdivision (c),or to a program with no cost within the provisions of section 1211.

4. People v. Orozco (2012) 209 Cal.App.4th 726, the Fourth AppellateDistrict, Division 3 held that the trial court erred in determining thatappellant did not qualified for deferred entry of judgment (DEJ), undersection 1000, subdivision (a)(3). A defendant is not disqualified fordeferred entry of judgment if he has committed an offense related to"narcotics or restricted dangerous drugs", in this case a DUI, in addition tothe crime eligible for deferred entry of judgment; because alcohol isneither a narcotic nor a restricted drug for purposes of subsection (a)(3). Initially, appellant was granted DEJ for possession of cocaine, even thoughhe also had a DUI. Ultimately appellant was terminated from the program. He moved for his reinstatement in front of another judge who denied it

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based on the DUI charge, and that was error. However, substantialevidence supported second trial judge's termination of appellant's deferredentry of judgment when he was required to enroll in a drug treatmentprogram, and he failed to enroll and participate in such a program in atimely manner.

N. PROTECTIVE ORDER IMPROPER BUT STAY AWAY ORDER AS ACONDITION OF PROBATION IS VALID

1. People v. Selga (2008) 162 Cal.App.4th 113, the Third Appellate Districtheld that where the defendant pled guilty to stalking Christina Reyes, hisex-girl friend and mother of his child, the court erroneously imposed acriminal protective order under section 1203.097, subdivision (a)(2) forher current boyfriend, but a requirement that defendant stay away fromhim, may be imposed as a general condition of probation under section1203.1.

O. NEW PROBATION REPORT ISSUES

1. People v. Conners (2008) 168 Cal.App.4th 443, the Second AppellateDistrict, Division 8 held that the trial court erred in failing to grant acontinuance and in sentencing appellant without a new probation report,essentially rendering the sentencing hearing fundamentally unfair. (Peoplev. Leffel (1987) 196 Cal.App.3d 1310, 1318-1319.)

P. DOMESTIC VIOLENCE COUNSELING IS MANDATED AND IS NOTDISCRETIONARY WHEN SECTION 1203.097 IS REQUIRED

1. People v. Cates (2009) 170 Cal.App.4th 545, the First Appellate District,Division 5, held that the court erred in failing to order appellant attend adomestic violence program, which was mandated for the assault on hisformer girlfriend, under section 1203.097. (People v. Delgado (2006) 140Cal.App.4th 1157, 1163.) Where trial court failed to impose mandatorycondition of probation at time of sentencing, it was required to do so uponthe error being called to its attention, even in the absence of a subsequentprobation violation.

Q. THE COURT CAN IMPOSE PROBATION RESTRICTIONS ON ADEFENDANT’S USE OF MEDICAL MARIJUANA

1. People v. Brooks (2010) 182 Cal.App.4th 1348, the Second AppellateDistrict, Division 6 held that the trial court did not abuse its discretion toimpose a probation condition prohibiting probationer from using medicalmarijuana, even though probationer had a doctor’s recommendation for it. The probation condition related to probationer’s offense for possession ofa controlled substance for sale, and to petitioner’s potential for future

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criminality. Barring probationer from using marijuana did not constitutedeliberate indifference to his medical needs. (Estelle v. Gamble (1976)429 U.S. 97, 107 [50 L.Ed.2d 251, 97 S.Ct. 285] [“deliberate indifference”by prison officials to an inmates medical needs could raise constitutionalclaims].)

R. THE COURT CAN RESTRICT INTERNET USE IF THE CONDITIONS ARENOT VAGUE OR OVERBROAD

1. People v. Pirali (2013) 217 Cal.App.4th 1341, the Sixth Appellate Districtheld that the a probation condition restricting access to the Internet to thedefendant, who was convicted of possessing child pornography wasunconstitutionally vague in the absence of a requirement that he know thedevice he is using is connected to the Internet. (Cf. In re Sheena K. (2007)40 Cal.4th 875, 890 [pertaining to the knowledge requirement].) Thecondition forbidding the defendant from possessing or purchasing sexuallyexplicit materials or pornography was unconstitutionally vague in theabsence of a requirement that defendant be told by the probation officerthat such items are sexually explicit or pornographic. (See People v.Turner (2007) 155 Cal.App.4th 1432, 1436-1437.)

S. THE COURT CAN IMPOSE RESTITUTION AFTER THE DEFENDANT HASCOMPLETED PROBATION

1. People v. Harvest (2000) 84 Cal.App.4th 641, the First Appellate District,Division 4, held that restitution to the victim, which is ordered after acriminal appeal, does not constitute punishment and as a result does notviolate the double jeopardy clause or the Supreme Court's dictate inPeople v. Hanson (2000) 23 Cal.4th 355, wherein the High Courtindicated double jeopardy prohibited increasing the statutorily-mandatedrestitution fine following retrial after appeal. The dissent in this casedisagrees with the majority that the restitution to the victim is civil innature and as a result can be distinguished from the criminally basedrestitution fine as analyzed in Hanson. The dissent maintains thatrestitution to the victim still operates as a criminal penalty, and is punitivein nature, thereby it is guaranteed double jeopardy and due processprotection.

2. People v. Moreno (2003) 109 Cal.App.4th 571, the Fifth Appellate Districtheld that the trial court, after a criminal judgment has been entered andaffirmed on appeal, may order the defendant to reimburse state forrestitution payments made to the victim's family, through the Victim ofCrime Program (VOC), even though the original sentence had neglected tomake any provision for direct restitution. (See § 1202.46.) The Court ofAppeal also found that direct restitution is not a form of punishment, andtherefore not subject to double jeopardy. (See People v. Harvest (2000) 84

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Cal.App.4th 641, 645.) The court distinguished People v. Hanson (2000)23 Cal.4th 355, 360-363 [a restitution fine is a form of punishment].)

3. People v. Ford (2013) 217 Cal.App.4th 1354, the First Appellate District,Division 3 held that the trial court maintained jurisdiction to determineand award victim restitution under sections 1202.4 and 1202.46,irrespective that the defendant’s probation had expired. (See People v.Bufford (2007) 146 Cal.App.4th 966, 969-970; see also People v.Giordano (2007) 42 Cal.4th 644, 65-653 [outlining legislative history].)

14. PLEA BARGAIN CONTRACTS

A. PLEA BARGAIN AS A CONTRACT

1. People v. Toscano (2004) 124 Cal.App.4th 340, the Second AppellateDistrict, Division 1, held that where the defendant entered into a pleaagreement allowing him to file a motion to dismiss a second-strikeallegation, without limitation as to the grounds upon which the motioncould be based, the trial court erred where it failed to consider the meritsof the motion to strike, where it was based on the ground that thedefendant did not knowingly plead guilty to the prior. The Court ofAppeal found that a plea bargain is interpreted according to the same rulesas other contracts. (Brown v. Poole (9th Cir. 2003) 337 F.3d 1155, 1159.) Therefore, the defendant was entitled to a new hearing on that motion.

2. People v. Chatmon (2005) 129 Cal.App.4th 771, the First AppellateDistrict, Division Three, held that where the defendant, pursuant to a pleabargain, pleaded guilty to possession of cocaine, and received the benefitof probation and a dismissal of a resisting arrest (§ 148) count. Hadappellant been convicted of resisting, he which would have disqualifiedhim from treatment under Proposition 36. Appellant was not entitled torelief from a subsequent probation revocation since he was not sentencedunder Proposition 36, but got the benefit of his bargain, even if the courtacted in excess of its jurisdiction, so long as it had fundamentaljurisdiction to sentence appellant. Having received the benefit of hisbargain, appellant cannot now trifle with the courts. (See People v. Couch(1996) 48 Cal.App.4th 1053, 1056-1057; People v. Nguyen (1993) 13Cal.App.4th 114, 122-123.)

3. People v. Jordan (2006) 141 Cal.App.4th 309, the Sixth Appellate Districtheld that the court erred in staying the second of two five-year seriousfelony enhancements within the meaning of section 667, subd. (a)(1). Even though the defendant failed to object to the “sentence structure”when it was announced, the court, on remand, must restructure thesentence where the defendant did not agree in a plea bargain to conditionhis waiver of jury trial on court staying sentence enhancement. (See

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People v. Buttram (2003) 30 Cal.4th 773, 789 [defendant had the right toargue for an appropriate individualized sentence within the constraints ofthe bargain, and as a result, he maintained his right to challenge the court’sexercise or lack thereof, of that discretion.].)

4. People v. Woosley (2010) 184 Cal.App.4th 1136, the Third AppellateDistrict held that it was error for the trial court engaged in unlawfuljudicial plea bargaining by inducing the defendant to plead guilty inexchange for a commitment to dismiss an on-bail enhancement to reachthe agreed-upon sentence over the prosecutor's objection. (Cf. People v.Allan (1996) 49 Cal.App.4th 1507, 1516 [no bargaining when no chargesare reduced].) This was not a sentence bargain as it was in People v. Orin(1975) 13 Cal.3d 937.

5. People v. Labora (2010) 190 Cal.App.4th 907, the Fourth AppellateDistrict, Division 2 held that the trial court entered into an impropersentence/plea bargain with the defendant. The people had standing toappeal the trial court's sentence on the grounds of in illegal judicial pleabargaining. The trial court engaged in judicial plea bargaining where itgave defendant an indicated sentence of six years in prison with thepossibility of running one of the counts consecutive, but then alloweddefendant to enter his plea conditional on a six-year term and, while takingthe plea, told defendant it would give him “a mid-term for the first countor six years, and run the others concurrent.” (See People v. Woosley(2010) 184 Cal.App.4th 1136.) The defendant was entitled to withdrawhis plea but not entitled to specific performance of the initial indicatedsentence where there was no contract with prosecutors to enforce. (Peoplev. Delgado (1993) 16 Cal.App.4th 551, 555.)

6. People v. Clancey (2013) 56 Cal.4th 562, the California Supreme Courtheld that the trial court has the authority to indicate in advance of adefendant's plea to the charges, a sentence to be imposed on the then-current record, provided that the indicated sentence reflects the court’s bestjudgment as to the appropriate sentence based on defendant’s criminalhistory and current offenses regardless of whether defendant wasconvicted by plea or at trial. However, where the trial court failed to makea clear statement that its indicated sentence reflected its best judgment, asopposed to an impermissible effort to induce a guilty plea, remand forreconsideration of the indicated sentence is required. When a trial courthas invoked its statutory power to dismiss a strike allegation in order toindicate the sentence it would impose, the court has not engaged in pleabargaining. Whether the trial court in the case lawfully indicated thesentence it believed was appropriate, or instead offered to dismiss thestrike conviction to induce a plea, is for the trial court to clarify when itrehears and reconsiders the plea on remand.

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B. DOES THE PRINCIPAL TERM HAVE TO BE THE LONGEST TERM OFTHE CURRENT CONVICTIONS WHEN THE PLEA BARGAIN SETS ARANGE FOR THE JUDGES DISCRETION?

1. People v. Miller (2006) 145 Cal.App.4th 206, the Sixth Appellate Districtheld that where the plea agreement provided for an aggregate sentence notexceeding six years eight months in prison and further provided that courtcould consider a six-year sentence, the court did not have to elect thelongest term available from the three current convictions to be designatedas the principal term. The defendant’s appeal was based on the contentionthat the court erroneously concluded that it lacked the discretion to notimpose the longest principal term available to it within the meaning ofsection 1170.1, subd. (a). People v. Felix (2000) 22 Cal.4th 651 andPeople v. Scott (1993) 17 Cal.App.4th 1383 do not apply to this pleabargain issue where the parties have given the court the discretion tosentence within a 6 month period. This appeal is not an attack on thevalidity of the plea and thus did not require a certificate of probable cause. When the court consolidated sentencing in three different cases, it had thediscretion to select any of the three terms as the principal term; therefore,the court’s conclusion that it had to select the longest term as the principalterm, resulting in maximum sentence allowed by plea bargain, waserroneous.

C. NEED OBJECTION RE ADVICE TO STRIKE AN ENHANCEMENTRE: CONSEQUENCES OF PLEA

1. People v. Jones (2009) 178 Cal.App.4th 853, the Fourth AppellateDistrict, Division 2 held that unless there is an objection at or prior tosentencing, the defendant waived his right to be specifically advised of thedirect consequences of admitting a prior conviction, including a strike. (See People v. Wrice (1995) 38 Cal.App.4th 767, 770-771.)

D. ARE CONTENTIONS BASED ON SECTION 654 FORFEITED WHEN THEDEFENDANT AGREES TO A “LID” AND NOT A SPECIFIED TERMWITHIN THE MEANING OF CALIFORNIA RULES OF COURT, RULE4.412(b)

1. People v. Jones (2013) 217 Cal.App.4th 735, the Third Appellate Districton remand from the Supreme Court, held that the defendant, who agreed toa "lid" or a sentence within a specified maximum sentence and wassentenced within that maximum, forfeited the contention that sentenceconstituted multiple punishment for the same crime under section 654.(See rule 4.412(b); People v. Hester (2000) 22 Cal.4th 290, 295; see alsoPeople v. Cuevas (2008) 44 Cal.4th 374.) The defendant had argued thatthe plea agreement did not set a "specific prison term", because he agreed

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to a maximum term, not a specific term. This is still an open questionwhich the supreme court has not decided; but the court rejects it here.

E. THE TRIAL COURT CAN PROPERLY REJECT A PLEA BARGAIN UNLESSONE OF THE THREE EXCEPTIONS TO SECTION 1192.7, SUBDIVISION(A)(2)’s PROHIBITION AGAINST PLEA BARGAINING APPLIES

1. People v. Barao (1203) 218 Cal.App.4th 769, the Third Appellate Districtheld that the trial court properly rejected a plea bargain under whichmurder charge would have been reduced to voluntary manslaughter. Asection of Proposition 8, section 1192.7, subdivision (a)(2), proscribes aplea bargain in murder case unless one of three exceptions is met, none ofwhich was present in this case. (See People v. Arauz (1992) 5 Cal.App.4th663, 669.)

15. SECTION 1203.4

1. People v. Arata (2007) 151 Cal.App.4th 778, the Third Appellate Districtheld that the statute prohibiting the court from expunging, pursuant tosection 1203.4, a conviction for a violent sexual offense under section 288,subd. (a), violates due process as applied to a defendant who wasconvicted prior to statute’s enactment and who entered into plea agreementin reliance on the relief available under section 1203.4. (See INS v. St. Cyr(2001) 533 U.S. 289 [150 L.Ed. 347, 121 S.Ct. 2271].) Additionally, notall parts of plea bargains need to be expressed; plea bargain terms can beimplied. (See People v. Harvey (1979) 25 Cal.3d 754, 758.) Section1202.4 relief if part of the bargain made with a probationer. (People v.Johnson (1955) 134 Cal.App.2d 140, 143.) Since the de’s plea rested in asignificant degree on the promise of an eventual section 1203.4 relief, suchpromise must be fulfilled. (Santobello v. New York (1971) 404 U.S. 257,262 [30 L.Ed. 427, 433, 92 S.Ct. 495].)

2. People v. Mgebrov (2008) 166 Cal.App.4th 579, the First AppellateDistrict, Division 2 held that section 1203.4, subdivision (a), whichprovides for the setting aside of certain convictions, permits the settingaside of convictions on individual counts that were tried together in caseswhere the defendant is not entitled to relief as to the entire case.

3. People v. Johnson (2012) 211 Cal.App.4th 252, the Fourth AppellateDistrict, Division 2 held that where the defendant was given probation formisdemeanor offenses, and who violated the terms of probation, and wasordered to do time in county jail for those offenses, moved to have thosematters expunged under section 1203.4 (a defendant who has fulfilled theconditions of probation for the entire probationary period to have a plea or

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verdict of guilty changed to one of not guilty, to have the proceedingsexpunged from the record, and to have the accusations dismissed), andwhose probation was terminated early because a prison term has beenimposed on him or her in felony cases, is not eligible for relief undersection 1203.4.

16. PROPOSITION 36 DRUG REHABILITATION

1. People v. Wandick (2004) 115 Cal.App.4th 131, the Third AppellateDistrict held that Proposition 36 probation was not available to nonviolentdrug offender who was convicted and sentenced to two years in prison forgrand theft after conviction, but before sentencing, on drug charge. (Seealso People v. Esparza (2003) 107 Cal.App.4th 691 [it was not error toimpose “sentence” on appellant for violating probation in a non-drug casewhen the violation is a new conviction for a drug possession felony. Furthermore, since appellant would be unavailable for Proposition 36 drugtreatment in prison, he may also be sentenced to prison on the drugcharge].)

2. People v. Ferrando (2004) 115 Cal.App.4th 917, the Third AppellateDistrict, held that the defendant was not eligible for the treatment ofProposition 36 following a conviction for “opening” or “maintaining” aplace for sale of methamphetamine, within the meaning of Health andSafety Code section 11366. The court concluded that any non-violent drugoffense of a commercial nature, did not qualify for Proposition 36treatment.

3. People v. Orabuena (2004) 116 Cal.App.4th 84, the Sixth AppellateDistrict distinguished In re Varnell (2003) 30 Cal.4th 1132, wherein theCalifornia Supreme Court held that section 1385 does not permit the trialcourt to dismiss a prior conviction and to disregard sentencing factors thatare not themselves required to be a charge or allegation in an indictment orinformation. Here, prior to the defendant pleading guilty to the possessionof drug offenses, the defendant had plead guilty to driving on a suspendedor revoked license, even though the offenses arouse at the same time. TheCourt of Appeal found that the court could dismiss the Vehicle Codeviolation under section 1385, and such was permissible as the defendanthad not been “sentenced,” he had merely served the 30 days in jail as acondition of probation. Therefore, the matter is reversed and the lowercourt was ordered to determine if it wants to exercise its discretion tostrike the misdemeanor convictions that make the defendant ineligible forProposition 36 treatment.

4. Moore v. Superior Court (2004) 117 Cal.App.4th 401, the Third AppellateDistrict held that the five-year “washout” period under section 1210.1,subd. (b)(1) of Proposition 36 begins when the disqualifying felony is

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committed, not when conviction takes place, when the defendant is placedon probation. If he is sentenced to state prison, it is when he is releasedfrom that institution.

5. People v. Dagostino (2004) 117 Cal.App.4th 974, the Fifth AppellateDistrict held that the defendant’s failure to meet with the mental health“gatekeeper,” whose job it was to evaluate his circumstances anddetermine the requisite drug treatment level, constituted violation of a“drug related” condition of Proposition 36 probation. As a result, the courtcould not revoke probation absent two prior violations or a finding ofdangerousness. Imposition of local jail time as sanction for first violationof probation could not be challenged as part of appeal from order imposingsanctions for second violation. (See People v. Mendez (1999) 19 Cal.4th1084, 1094.) However, the trial court may not on remand, following thereversal of an order erroneously revoking Proposition 36 probation,impose local jail time as a condition of reinstated probation.

6. People v. Canty (2004) 32 Cal.4th 1266, the California Supreme Courtheld that a defendant is ineligible for drug treatment under Proposition 36because driving under the influence of drugs is not simple possession oruse of drugs, and is not drug related. The court does discuss People v.Duncan (1990) 216 Cal.App.3d 1621, wherein the defendant was denieddrug diversion because the driving under the influence offense was a drugrelated offense, and distinguish it based on the statutory schemes ofProposition 36 and section 1000 diversion.

7. People v. Campbell (2004) 119 Cal.App.4th 1279, the First AppellateDistrict, Division 2, held that Proposition 36 does not permit the court,after determining that residential treatment is appropriate, following asecond violation of probation, to allow the defendant to enter an outpatienttreatment program in exchange for the defendant’s stipulation to upperprison term in event probation is later revoked. A defendant who is onprobation pursuant to Proposition 36 can only have that probation revokedin accordance with the statutory scheme. (In re Mehdizadeh (2003) 105Cal.App.4th 995, 1006; see also People v. Davies (2003) 104 Cal.App.4th1443, 1448 [sanction limited to the provision of section 1210].) The trialcourt, upon revoking probation and sentencing defendant to the upperterm, could not legally rely upon the invalid stipulation and was requiredto specify reasons for the upper term. (See § 1170, subd. (b); rule 4.433(c)(1).)

8. In re Ogea (2004) 121 Cal.App.4th 974, the Fourth Appellate District,Division 3, held that possession of a controlled substance while armedwith a loaded, operable firearm, as proscribed by Health and Safety Codesection 11370.1, subd. (a), is not a “nonviolent drug possession offense”that would entitle defendant to treatment under Proposition 36.

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9. People v. Dove (2004) 124 Cal.App.4th 1, the Fourth Appellate District,Division 2 held that, the factual finding that a defendant did not possess ortransport a controlled substance for personal use, for purposes ofProposition 36 sentencing, may be made by the trial court under apreponderance of the evidence standard.

10. People v. Eribarne (2004) 124 Cal.App.4th 1463, the Fifth AppellateDistrict held that a conviction for driving with a blood-alcohol level of0.08 percent or higher in violation of Vehicle Code section 23152, subd.(b) is a “misdemeanor conviction involving . . . the threat of physicalinjury to another person” within the meaning of section 1210.1, subd.(b)(1), which provides that persons previously convicted of one or moreserious or violent felonies who have sustained such a misdemeanorconviction within a period of five years prior to committing a nonviolentdrug possession offense are not eligible for probation and diversion into adrug treatment program under Proposition 36.

11. People v. Bowen (2004) 125 Cal.App.4th 101, the Third Appellate Districtheld that in determining the number of drug offender’s past probationviolations for purpose of ascertaining his continuing eligibility fortreatment under Proposition 36, the court properly counted pre-Proposition36 violations, including cases where probation was revoked and jail timeimposed.

12. People v. Hinkel (2005) 125 Cal.App.4th 845, the Third Appellate Districtheld that the trial court’s denial of the petition to set aside the defendant’sdrug conviction and terminate probation under Proposition 36 was not anabuse of discretion where the defendant completed a treatment program,after being in two different programs, but the evidence regarding thenature of the program and of the defendant’s performance in it wasinadequate to establish reasonable cause to believe that he “successfullycompleted the program” or that he would remain drug-free. (See § 1210,subd. (c).)

13. People v. Thurman (2005) 125 Cal.App.4th 1453, the Third AppellateDistrict held that in a Proposition 36 matter, the court may impose, as acondition of probation, that the defendant waive his statutory right tocustody credits for time he spent in a residential drug treatment facility. Ifthe defendant did not like this option, he could decline probation if theterms are not to his liking. (See People v. Kendrick (2004) 122Cal.App.4th 1305, 1311.) All in all, incarceration is still not an initialoption within the limits of Proposition 36. (People v. Davis (2003) 104Cal.App.4th 1443, 1446.)

14. People v. Foreman (2005) 126 Cal.App.4th 338, Division Three held thatforging or presenting a forged prescription to obtain drugs in violation of

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Health and Safety Code section 11368 is not a possessory drug offense forwhich the defendant is entitled to treatment under Proposition 36. Thiscourt believes that only offenses that come within the clear meaning of thestatute, those being for personal use, possession for personal use, ortransportation for personal use of the controlled substance; nothing else. (See In re Ogea (2004) 121 Cal.App.4th 974, 982.)

15. People v. Guzman (2005) 35 Cal.4th 577, the California Supreme Courtheld that Proposition 36 does not violate appellant’s right of equalprotection under either the federal or state constitutions by failing torequire that appellant be granted probation when the current offense was anon-violent drug possession offense while on probation for offenses otherthan non-violent drug possession offenses.

16. People v. Wheeler (2005) 127 Cal.App.4th 873, the Third AppellateDistrict held that forging a prescription in violation of Health and SafetyCode section 11368, does not meet the statutory definition of a“nonviolent drug possession offense” as required for treatment underProposition 36.

17. People v. Martinez (2005) 127 Cal.App.4th 1156, the Second AppellateDistrict, Division 8 held that the defendant’s proposition 36 probationmay be revoked for a check forgery violation, since that is not a drugpossession offense. (In re Taylor (2003) 105 Cal.App.4th 1394, 1398 [theprobation violation must be drug-related to apply § 1210.1, subd. (f)].)

18. People v. Tanner (2005) 129 Cal.App.4th 223, the Fourth AppellateDistrict, Division 1, held that the provisions of Proposition 36, whichlimits the circumstances under which such probation may be revoked,requires the prosecution to bring three noticed motions to revoke thedefendant’s probation before the court may revoke it based exclusively ondrug-related violations. The legislation calls for giving the defendant twochances, before the third motion is brought by the prosecution to terminateprobation. (See People v. Johnson (2003) 114 Cal.App.4th 284, 295.)

19. People v. Chatmon (2005) 129 Cal.App.4th 771, the First AppellateDistrict, Division Three, held that where the defendant, pursuant to a pleabargain, pleaded guilty to possession of cocaine, and received the benefitof probation and a dismissal of a resisting arrest (§ 148) count. Hadappellant been convicted of resisting, he which would have disqualifiedhim from treatment under Proposition 36. Appellant was not entitled torelief from a subsequent probation revocation since he was not sentencedunder Proposition 36, but got the benefit of his bargain, even if the courtacted in excess of its jurisdiction, so long as it had fundamentaljurisdiction to sentence appellant. Having received the benefit of hisbargain, appellant cannot now trifle with the courts. (See People v. Couch

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(1996) 48 Cal.App.4th 1053, 1056-1057; People v. Nguyen (1993) 13Cal.App.4th 114, 122-123.)

20. People v. Moniz (2006) 129 Cal.App.4th 421, the Third Appellate Districtheld that a conviction for concealing or destroying evidence, includingdrugs or drug related paraphernalia, is not a misdemeanor related to use ofdrugs for purposes of Proposition 36 treatment. (See also People v.Wheeler (2005) 127 Cal.App.4th 873; People v. Foreman (2005) 126Cal.App.4th 338, 343; In re Ogea (2004) 121 Cal.App.4th 974, 985-987.)

21. People v. Budwiser (2006) 140 Cal.App.4th 105, the Third AppellateDistrict held that the defendant’s procedural rights, and due process rights,pursuant to Proposition 36, were not violated where the court conducted asingle hearing on two separate petitions to revoke probation. There wassubstantial evidence to support the finding that the defendant wasunamenable to drug dependency treatment in order to support therevocation. The evidence established that the defendant was removedfrom the treatment program for three positive tests and one failure to test,and defendant was subsequently found with a device designed tocircumvent urine test.

22. People v. Hartley (2007) 156 Cal.App.4th 589, the Third AppellateDistrict held that the lower court erred in denying appellant’s petition todismiss the matter wherein appellant had successfully completed theProposition 36 program. (See § 12220.1, subd. (d)(1).) The Court ofAppeal found that the probation department could make the application forappellant, and it did not have to come from appellant or counsel. Eventhough the court’s literal reading of the statute may be correct, the “plainmeaning” rule does not prohibit a court from determining whether theliteral meaning of the statute comports with its purpose. The words of thestatute must be read in context, and must be harmonized with othersections. The intent prevails over the letter, and the letter will, if possible,be so read as to conform to the spirit of the act. (Lungren v. Deukmejian(1988) 45 Cal.3d 727, 735.) The same rule applies to voter initiatives. (Ibid.)

23. People v. Hazle (2007) 157 Cal.App.4th 567, the Third Appellate Districtheld that where the defendant on Proposition 36 probation was the subjectof three revocation petitions, and the second and third petitions were triedtogether, but the facts supporting the third petition took place before thesecond petition was filed, the sustaining of the petitions did not renderdefendant ineligible to be continued on probation. (See People v. Tanner(2005) 129 Cal.App.4th 223.) Proposition 36 entitles an eligible defendantto three distinct periods of probation before he can be found ineligiblebased solely on drug-related violations. This court distinguishes People v.

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Budwiser (2006) 140 Cal.App.4th 105 where the violations were not in thesame order as they were in this case.

24. People v. Enriquez (2008) 160 Cal.App.4th 230, the Third AppellateDistrict held that where the defendant was on Proposition 36 probation andwas subject of three separate unadjudicated petitions to revoke probation,all for reasons related to simple possession or use of drugs, the court wasrequired to treat the petitions as a single petition and to continue thedefendant on probation absent a finding that he was a danger to others. (See People v. Hazle (2007) 157 Cal.App.4th 567.)

25. People v. Castagne (2008) 166 Cal.App.4th 727, the First AppellateDistrict, Division 2 held that the trial court erred in finding that thedefendant’s concurrent treatment for two offenses constituted “twoseparate courses of drug treatment” and rendered defendant ineligible forfurther Proposition 36 drug treatment under section 1210.1, subdivision(b)(5). The defendant’s history of probation violations, includingviolations of drug treatment conditions, did not compel the appellate courtto find that defendant had refused drug treatment and was thus ineligiblefor Proposition 36 treatment under section 1210.1(b)(4) where trial courtdid not make such a finding, and conflicting inferences from the recordcould support a contrary finding. The matter is remanded for the court tomake the appropriate findings.

26. People v. Harris (2009) 171 Cal.App.4th 1488, the Fourth AppellateDistrict, Division 1 held that the court erred in sentencing appellant tostate prison, rather than granting Proposition 36 probation, despite hisabysmal prior record, which included 7 prior prison terms, and 3 priorenhancements for Health and Safety Code section 11370.2, subdivision(a). Appellant was convicted, in this current offense, with a violation oftransportation of cocaine base. However, the jury found that thetransportation was for personal use. As a result, the prison sentence wasunauthorized, and there could be no waiver, since the court was required toplace appellant on Proposition 36 probation.

27. People v. Sizemore (2009) 175 Cal.App.4th 864, the Second AppellateDistrict, Division 3 held that the trial court did not err in removing thedefendant from Proposition 36 diversion program where defendant failedto comply with terms of the diversion program and expressed a desire to“opt out” of the program (see People v. Campbell (2004) 119 Cal.App.4th1279), and serve “regular” probation. Defense counsel was not deficientfor acquiescing to the defendant’s request after the trial court indicated itbelieved the defendant was unamenable to Proposition 36 treatment. Furthermore, the defendant did not suffer prejudice as a result of counsel’sperformance. As defendant failed at every attempt at probation, trial court

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did not abuse its discretion in sentencing defendant to state prison. (SeePeople v. Downey (2000) 82 Cal.App.4th 899, 910.)

28. People v. Haddad (2009) 176 Cal.App.4th 270, the Second AppellateDistrict, Division 5 held that the defendant's admitted use of a device toproduce a negative result during court-ordered drug testing, thewhizanator, was not a drug-related violation of probation for purposes ofProposition 36 (§ 1210.1).

29. People v. Friedeck (2010) 183 Cal.App.4th 892, the Second AppellateDistrict, Division 6 held that the defendant's implied refusal of drugtreatment as a condition of deferred entry of judgment (§ 1000, subd.(a)(1)), rendered him ineligible for probation under Proposition 36. (§1210.1) (See also People v. Strong (2006) 138 Cal.App.4th Supp. 1, 5-6.) Merely because the defendant attended some AIDS classes was nosubstitute for not attending drug classes, even if he lost his paperwork.

30. People v. Bauer (2011) 193 Cal.App.4th 396, the Fifth Appellate Districtheld that the trial court did not abuse its discretion in failing to reintstateappellant back into the Proposition 36 probation due to his manyviolations. The Court of Appeal found that appellant did not merely fail toreport to the probation officer for “to be tested”, as in People v. Taylor(2003) 105 Cal.App.4th 1394, which was “drug related.” But, he made noeffort to comply with the drug treatment probation, having repeated andflagrant violations, in effect, refused the drug treatment as a condition ofprobation, and was thus ineligible for reinstatement. (See People v.Johnson (2003) 114 Cal.App.4th 284, 303.)

31. People v. Parodi (2011) 198 Cal.App.4th 1179, the First AppellateDistrict, Division 1, held that the trial court did not err in finding thatsection 4573, willfully bringing a controlled substance into a jail facility, isnot a “nonviolent drug possession offense” within the meaning ofProposition 36.

32. People v. Barros (2012) 209 Cal.App.4th 1581, the First AppellateDistrict, Division 5 held that Proposition 36 or section 1210.1, subdivision(a), makes its provisions inapplicable if the defendant is convicted of anon-drug offense in the "same proceeding," as the non -violent drugoffense charges are not brought in the same proceeding unless they areproperly joined in a single pleading. (See § 1210.1, subd. (b)(2).) However, when the drug and non-drug charges were severed due tomisjoinder, that ruling was binding on the judge in the subsequentproceeding on the drug charges, who was required to sentence defendantunder Proposition 36.

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33. People v. Juhasz (2013) 220 Cal.App.4th 133, the Third Appellate Districtheld that section 1210.1, subd. (b)(4)), which renders a defendantineligible for sentencing under Proposition 36 if he or she "refuses drugtreatment as a condition of probation," (see People v. Dagostino (2004)117 Cal.App.4th 974) applies when the refusal occurs in the pending case,not when treatment was refused in an earlier case. A finding of lack ofamenability under section 1210.1, subdivision (b)(5), which excludes fromProposition 36 "[a]ny defendant who has two separate convictions fornonviolent drug possession offenses, has participated in two separatecourses of drug treatment pursuant to subdivision (a), and is found by thecourt, by clear and convincing evidence, to be unamenable to any and allforms of available drug treatment", was unsupported by substantialevidence when based solely on prior refusals of treatment, unaccompaniedby any consideration of whether there were forms of treatment presentlyavailable to which defendant might be amenable. (See People v. Espinoza(2003) 107 Cal.App.4th 1069, 1072.)

34. People v. Harbison (2014) 230 Cal.App.4th 975, the Second AppellateDistrict, Division 6 held that Proposition 36, as codified in section 1210.1,the 2000 initiative which requires a drug treatment program and not jail,for certain crimes involving drug possession, has exceptions or exclusionsfor persons, like the defendant who are found unamenable to treatment,and therefore ineligible. (See § 1210.1, subd. (b)(5). In this case theexclusion requires a sentence of 30 days in jail, "no more and no less." Thedefendant has undergone two prior courses of treatment and the courtdetermines that no further treatment efforts are warranted.

35. People v. Hudson (2016) 244 Cal.App.4th 1318, the Third AppellateDistrict held that pursuant to Proposition 36, section 1210.1, whichprovides treatment conditions for nonviolent drug offenders who areplaced on probation. The Court of Appeal found that the trial court did noterr when it found the defendant not eligible for the program. The juryacquitting the defendant of possession of various controlled substances forsale, but found him guilty of simple possession of the same drugs; but theverdict did not implicitly find that such possession was solely for personaluse. The expert testimony at trial constituted substantial evidence that thedefendant possessed drugs for other than personal use, which supportedthe trial judge’s ruling, by a preponderance of the evidence, that he wasnot eligible for Proposition 36 sentencing.

36. People v. Gutierrez (2016) 245 Cal.App.4th 393, the Second AppellateDistrict, Division 6 held that section 3455, establishing procedures bywhich postrelease community supervision (PRCS) may be revoked, maynot be applied in a manner inconsistent with the right to drug treatmentunder Proposition 36, section 1210.1. If a defendant subject to section3455 is otherwise eligible under Proposition 36, the court may not

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sentence him or her to jail instead of drug treatment. Here the defendanthad been in prison based on a conviction for an unlawful possession of afirearm and had been released on PRCS. He was then arrested for beingunder the influence of methamphetamine, and probation filed a petition forrevocation of PRCS pursuant to section 3455. Parole and PRCS are twoseparate forms of supervision. As a result section 3455 may not be appliedin a manner that is inconsistent with the treatment requirements of section1210.1.

17. ONE STRIKE LAW SECTION 667.61

1. People v. Benitez (2005) 127 Cal.App.4th 1274, the Third AppellateDistrict held that under “one-strike” provision (§ 667.61), requiringimposition of 15-year-to-life sentence if defendant is convicted of childmolestation involving multiple victims (§ 667.61, subd. (e)(5)), unlessdefendant is qualified for probation pursuant to section 1203.066, subd.(c), the question of whether the defendant is qualified for probation is to bemade by judge rather than by jury. Since the granting of probation is anact of clemency and not a form of punishment (see People v. SuperiorCourt (Kirby) (2003) 114 Cal.App.4th 287, 293-295), the sentence was notincreased, and therefore, there was no Blakely violation.

2. People v. Chan (2005) 128 Cal.App.4th 408, the Second AppellateDistrict, Division 5 held that where the evidence established that thedefendant was found by police at a location other than that listed on hissex offender registration, which was non-existent; that the defendant knewhe had a duty to register as a sex offender; that the defendant told thepolice that he lived at the location where he was found; and that thedefendant in fact lived at a location which was neither the one at which hewas found nor the one listed on his registration, was sufficient for the juryto find that he violated section 290. The jury was not precluded fromfinding that the defendant’s act was wilful, in spite of his testimony that hemistakenly listed the wrong address, that he meant to use the correctaddress, and that he did not tell the officer he lived at the location wherehe was found. (See People v. Garcia (2001) 25 Cal.4th 744, 751-752 [thedefendant must willfully violate the statute]; People v. Edgar (2002) 104Cal.App.4th 210, 220-221 [defendant must actually know that staying at adifferent residence required an additional registration].) The corpus delictirule (see People v. Alvarez (2002) 27 Cal.4th 1161, 1170), does not extendto statements which constitute the commission of the charged crime. (SeePeople v. Carpenter (1997) 15 Cal.4th 312, 394.) As a result, the ruledoes not preclude the defendant’s conviction, based on his own falsewritten entries on state’s registration form, which he admitted filling out. The defendant cannot be convicted of violating section 288, subd. (b)(1),lewd conduct by force, and section 288, subd. (a), lewd conduct withoutforce, where the same conduct make up both offenses, as the section 288,

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subd. (a) is a lesser included offense to the section 288, subd. (b)(1)offense. (See People v. Ortega (1998) 19 Cal.4th 686, 692, 693 [cannotbe convicted of the lesser included offense and the greater offense].) Where the defendant was previously convicted of section 288, subd. (a),and where he is currently convicted of multiple violations of section 288,subd. (b)(1), the court was required by the One-Strike Law (see § 667.61)to impose consecutive sentences of 25 years to life for each violation ofsection 288, subd. (b)(1). It had the option of striking the prior in theinterests of justice (People v. Jordan (1986) 42 Cal.3d 308, 319, fn. 7;People v. Bradley (1998) 64 Cal.App.4th 386, 400, fn. 5), and since thatwas not considered it must be remanded for resentencing.

3. People v. Rodriguez (2005) 129 Cal.App.4th 1401, the Fourth AppellateDistrict, Division 2, held that the trial court erred when it believed that itdid not have the discretion to impose concurrent terms for multipleconvictions under the one strike law within the meaning of section 667.61.

4. People v. Fuller (2006) 135 Cal.App.4th 1336, the Second AppellateDistrict, Division 1 held that multiple rapes all committed against the samevictim within an hour and within her apartment, albeit in different rooms,occurred “during a single occasion” under the “one strike” law (§ 667.61)punishing forcible sex crimes. The “single occasion” rule is differentwhen applying section 667.61 and not section 667.6. (See People v. Jones(2001) 25 Cal.4th 98.) Where the defendant was convicted on multiplecounts of rape, and all of the crimes were committed “during a singleoccasion” within the meaning of the one strike law, the defendant wassubject to a single enhanced sentence on one count for the sex acts (seePeople v. Wutzke (2002) 28 Cal.4th 923, 929-930; People v. Mancebo(2002) 27 Cal.4th 735, 741-742), and to separate, determinate sentences onthe other non-sex counts. (See People v. Acosta (2002) 29 Cal.4th 105,118-128.)

5. People v. Hiscox (2006) 136 Cal.App.4th 253, the First Appellate District,Division 3 held that where the defendant was charged with committingcertain sexual offenses during a designated time period, which began priorto effective date of “One Strike” law (§ 667.61) November 30, 1994, andended after that date, and where the prosecution did not prove that theoffenses occurred after that date, sentencing under section 667.61 violatedex post facto clauses. An ex post facto violation resulting in anunauthorized sentence may be raised on appeal even if the defendant failedto object. (People v. Zito (1992) 8 Cal.App.4th 736, 741-742.)

6. People v. McQueen (2008) 160 Cal.App.4th 27, the First AppellateDistrict, Division 3 held that where the defendant was convicted of violentsexual offenses for which he was subject to sentencing under both theone-strike law (§ 667.61) and the habitual sex offender law (§ 667.71),

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enhanced in each instance by the Three Strikes Law, the court correctlyimposed the habitual sex offender penalties and stayed, and did not strike,the one-strike sentence. The courts are split over whether the one strikelaw should be stayed or stricken, People v. Snow (2003) 105 Cal.App.4th271, indicates stricken, whereas People v. Lopez (2004) 119 Cal.App.4th355, indicates that it should be stayed; this court obviously sides withLopez. But, it is clear that the Three Strike law acts to increase sentenceon each count. People v. Hiscox (2006) 136 Cal.App.4th 253, the FirstAppellate District, Division 3 held that where the defendant was chargedwith committing certain sexual offenses during a designated time period,which began prior to effective date of “One Strike” law (§ 667.61)November 30, 1994, and ended after that date, and where the prosecutiondid not prove that the offenses occurred after that date, sentencing undersection 667.61 violated ex post facto clauses. An ex post facto violationresulting in an unauthorized sentence may be raised on appeal even if thedefendant failed to object. (People v. Zito (1992) 8 Cal.App.4th 736,741-742.)

7. People v. Valdez (2011) 193 Cal.App.4th 1515, the Second AppellateDistrict, Division 5 held that the “one strike law,” pursuant to section667.61 does not limit application of multiple victim circumstance so that itcan be imposed only once for each victim regardless of whether the crimeswere committed on separate occasions. In other words, a defendant maybe sentenced per occurrence, not per victim, under the section 667.61,where sex offenses were committed on multiple victims.

8. People v. Byrd (2011) 194 Cal.App.4th 88, the Fourth Appellate District,Division 1 held that the trial court did not err in declining to staydefendant's sentence for simple kidnapping, under section 207, subdivision(a), where his sentence under the one strike law (§ 667.61) was premisedon aggravated kidnapping for commission of sexual crimes under section667.61, subdivisions (c) and (d)(2), and not on simple kidnapping.

9. People v. Rodriguez (2012) 207 Cal.App.4th 332, the Second AppellateDistrict, Division 4, held that the trial court erred in sentencing defendantunder former section 667.61, subdivision (g), which limited the impositionof One Strike terms for multiple sex offenses committed on a singleoccasion to imposing it just once. Because the legislature amended theOne Strike law to eliminate this provision prior to defendant’s offenses,the trial court was obliged to impose a One Strike term on each of thedefendant’s offenses eligible for sentencing under the One Strike law. Trial court erred by imposing a One Strike term as an enhancement ratherthan as a principal term. Trial court erred in both imposing a knife-useenhancement and using the knife use as an aggravating circumstancebringing the case within the One Strike law. The trial court erred inimposing a life term for kidnaping during a carjacking, where that offense

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was also the basis for a One Strike sentence. The trial court erred inimposing full consecutive middle term for attempted sodomy; this crime issubject to section 1170.1, as attempted sodomy does not fall under the full-term consecutive sentence provisions of section 667.6 or the One Strikelaw.

10. People v. Luna (2012) 209 Cal.App.4th 460, the Fourth Appellate District,Division 3 held that section 667.61, subdivision (e)(1) does not require afinding that defendant kidnapped victim with the intent to commit a sexualoffense against that victim in order to impose the indeterminate heightenedsentence under section 667.61, subdivision (b). The plain language ofsection 667.61, subdivision (e)(1) only requires a finding that thedefendant kidnapped the victim of the sexual offense. (C.f. People v. Jones(1997) 58 Cal.App.4th 693, 717.)

11. People v. Huynh (2014) 227 Cal.App.4th 1210, the Fourth AppellateDistrict, Division 3 held that the term "previously convicted" withinsection 667.61, subdivision (d)(1), based on the plain language of thestatute, means that a defendant was convicted of a qualifying offensebefore the commission of the currently charged offense.

18. FINES, FEES AND BLOOD SAMPLES

1. People v. Wallace (2004) 120 Cal.App.4th 867, the Second AppellateDistrict, Division 5, held that a court security fee of $20, pursuant tosection 1465.8, levied on persons convicted of crimes, and also on partiesto various other types of proceedings, is not punitive in nature and may beimposed on defendant whose offense was committed prior to the effectivedate of legislation imposing the fee; therefore it is not an ex post factoviolation.

2. People v. Dickerson (2004) 122 Cal.App.4th 1374, the Sixth AppellateDistrict held that, pursuant to People v. Walker (1991) 54 Cal.3d 1013,1027, wherein the Supreme Court stated that “[c]ourts and the partiesshould take care to consider restitution fines during the plea negotiations,”does not prohibit criminal defendants from striking bargains that leave theimposition of fines to the discretion of the sentencing court. Where thecourt in taking the defendant’s plea, advised the defendant that the courtwas required to impose a restitution fine of between $200 and $10,000,and at sentencing imposed a fine of $6,800 as recommended by probationreport, an objection to court’s failure to advise the defendant at the timethe plea was taken of the statutory mandate that a fine greater than thestatutory minimum was required, was waived by counsel’s failure to makean objection at sentencing. (People v. Walker, supra, 53 Cal.3d at p.1023.)

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3. People v. Sorenson (2005) 125 Cal.App.4th 612, the Sixth AppellateDistrict ruled, similarly to their opinion in People v. Dickerson (2004) 122Cal.App.4th 1374, that a defendant, who was informed during his plea thathe was subject to “fines and fees” up to a specified amount and to arestitution fine with a specified minimum and maximum amount, wasadequately advised of potential fines and assessments that were withinthose parameters; since they were not made part of the plea agreement,their imposition did not violate the agreement. The Court of Appealconcluded by stating that the trial court need not advise the defendant ofevery possible statute under which he could be fined.

4. People v. Willie (2005) 133 Cal.App.4th 43, the First Appellate District,Division 5, held that since section 1214, subd. (a) provides thatenforcement of a restitution fine must be “in the manner provided for theenforcement of money judgments generally,” granting the districtattorney’s motion for release of funds held in trust by the policedepartment to pay the fine and the court’s amending the sentencing ordernunc pro tunc to include an order releasing the funds were not properenforcement methods.

5. People v. Le (2006) 136 Cal.App.4th 925, the Sixth Appellate District heldrestitution and parole revocation fines are “punishment” within meaning ofsection 654; therefore, the lower court erred in treating the robbery andburglary convictions as separate in calculating such fines. Where the trialcourt indicated its intent to impose the minimum parole revocation andrestitution fines and erroneously calculated such minimums, the Court ofAppeal can reduce such fines to properly calculated minimum even thoughthe trial court would have had discretion to impose larger fines.

6. People v. Espana (2006) 137 Cal.App.4th 549, the Fourth AppellateDistrict, Division 3 held that where the order requiring the defendant togive a DNA sample was overturned based on the law in effect at that time,but samples were in DNA bank when Proposition 69, under whichdefendant could lawfully be required to give such samples prior to releasefrom custody, became law, the defendant was not entitled to have hissamples destroyed. Proposition 69 is not an ex post facto law as applied todefendant convicted of a qualifying offense before the effective date of thestatute who was confined to prison when statute was enacted. (See Rise v.Oregon (9th Cir. 1995) 59 F. 3d 1556, 1562; Indianapolis v. Edmund(2000) 531 U.S. 32 [143 L.Ed.2d 333, 121 S.Ct. 447].)

7. People v. Zackery (2007) 147 Cal.App.4th 680, after the granting of apetition for rehearing, the Third Appellate District held that where theclerk’s minutes of a change of plea, minutes of the sentencing, and theabstract of judgment differed from the court’s oral pronouncement andincluded items never orally imposed in defendant’s presence, the minutes

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must be stricken to reflect what actually occurred and the judgment thatthe judge actually pronounced. (See People v. Mesa (1975) 14 Cal.3d 466,471; People v. Mitchell (2001) 26 Cal.4th 181, 185-186.) Where the clerkerroneously indicated in the minutes of the change of plea that thedefendant changed his plea from not guilty to no contest, the sentence onthat count was unauthorized and must be vacated. (People v. Hartsell(1973) 34 Cal.App.3d 8, 13-14.) The failure to impose a restitution finewas reversible error where the reasons for not doing so were not stated onrecord. (See § 1202.4, subd. (b).)

8. People v. Chavez OVERRULED BY LEGISLATION; formerly at:(2007) 150 Cal.App.4th 1288, the Second Appellate District, Division 5held that where a defendant is convicted of cocaine possession is subject tomandatory financial penalties, including criminal laboratory analysis fee inthe amount of $50, a drug laboratory fine under section 1464, subd. (a) inthe sum of $50, a $35 assessment under Government Code section 76000,subd. (a), a $10 state surcharge on the criminal laboratory analysis fee, andstate court construction penalties totaling $67.50, or one-half of thecriminal laboratory analysis fee, the drug laboratory fine, and the section76000, subd. (a) assessment. The court’s failure to impose any of suchpenalties constitutes jurisdictional error. The state surcharge of 20 percentapplies to criminal laboratory analysis fee, but does not apaply to section1464, subd. (a) and section 76000, subd. (a) assessments. State courtconstruction penalty applies to all counties regardless of whether they areparticipating in a local Courthouse Construction Fund or the TransitionalState Court Facilities Construction Fund. The restitution fine undersection 1202.4, subd. (b)(1) and parole revocation restitution fine undersection 1202.45 are not enhanced by section 1464, subd. (a) and section76000, subd. (a) penalty assessments or by the 20 percent state surchargeunder section 1465.7. Court security fee of $20, which by statute must beimposed upon conviction of any offense other than a parking violation, isenhanced by a section 1464, subd. (a) penalty assessment of $20; a $14section 76000, subd. (a) penalty assessment; a $4 section 1465.7, subd. (a)state surcharge; and a $10 state court construction penalty, plus a $10 statecourt construction penalty on the section 1464, subd. (a) assessment and a$7 state court construction penalty on the section 76000, subd. (a) penaltyassessment.

9. People v. Crandell (2007) 40 Cal.4th 1301, the California Supreme Courtheld that the court’s imposition of a $2,600 restitution fine, which was notstated by the prosecutor when he recited parties plea agreement, did notviolate the negotiated disposition where the court, before takingdefendant’s plea, had accurately advised him he would “have to pay arestitution fund fine of a minimum of $200, a maximum of $10,000" andascertained that prosecution had not made “any other promises” beyondthat he would be sentenced to 13 years in prison. The court distinguished

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People v. Walker (1991) 54 Cal.3d 1013, where it was not mentioned inthe negotiations or before taking the plea, like it was, by the court, in thiscase.

10. People v. Crittle (2007) 154 Cal.App.4th 368, the Third Appellate Districtheld that a $20 court security fee, as provided for in section 1465.8, mustbe imposed based on a conviction for which punishment has been stayedpursuant to section 654. People v. Pearson (1986) 42 Cal.3d 351, 361[bars use of conviction for any punitive purpose] does not apply since a feeis not punishment. (People v. Wallace (2004) 120 Cal.App.4th 867,874-878.) A $10 crime prevention fine, pursuant to section 1202.5, subd.(a), can be imposed only once in a case rather than for each conviction in acase.

11. People v. McCoy (2007) 156 Cal.App.4th 1246, the Second AppellateDistrict, Division 5 held that Senate Bill 425, which amended previousprovisions of law with regard to the calculation of a state courtconstruction penalty imposed in all criminal cases, by providing that thefee imposed by county board of supervisors for local courthouseconstruction fund be deducted from the penalty, and by clarifying that thepenalty was to not to be added to any restitution fine, to any penaltyassessment imposed under section 1464, subd. (a) or section 76000, subd.(a), or to a state surcharge imposed under section 1465.7, applies to casespending on appeal when the bill was signed into law on October 5, 2007. Where the court imposes a $50 laboratory fee under Health and SafetyCode section 11372.5, subd.(a), it is required to impose a 20 percent statesurcharge pursuant to section 1465.7, subd. (a), but cannot impose a statecourt construction penalty in addition to the state surcharge.

12. People v. Alford (2007) 42 Cal.4th 749, the California Supreme Court heldthat, consistent with People v. Wallace (2004) 120 Cal.App.4th 867, 870,found that the imposed fee upon every defendant convicted of a crime paya $20 court security fee pursuant to section 1465.8 is not punitive (seePeople v. Castellanos (1999) 21 Cal.4th 785), and may be applied todefendants whose offenses were committed prior to the effective date ofthat section without being in violation of the prohibition against ex postfacto laws as it is necessary to fund court security.

13. People v. Walz (2008) 160 Cal.App.4th 1364, the Second AppellateDistrict, Division 5 held that where the court imposed a $200 sex offenderfine rather than the $300 fine set forth in section 290.3, subd. (a), theimposition of the $200 fine was “unauthorized” and thus subject to suasponte reversal. Where the court was authorized to fine the defendant$500 for each sex offense conviction in excess of the first, but was alsoauthorized not to impose the fines if it found defendant lacked the abilityto pay, and the prosecution did not object to the omission of the fines, the

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Court of Appeals was required to presume that the lower court found thatthe defendant lacked the ability to pay the additional fines and that theomission of those fines was not error. (People v. Burnett (2004) 116Cal.App.4th 257, 261; see also People v. Stewart (2004) 117 Cal.App.4th907, 911.) On a silent record it is presumed the court determined that thedefendant did not have the ability to pay and should not be compelled topay the fine. (Ibid.) No assessments are levied on restitution fines (sec.1202.4) or parole restitution fines (sec. 1202.45.) But, the assessmentspursuant to sections 1464, subd. (a)(3)(A), 1265.7, subd. (a), GovernmentCode section 70372, subd. (a)(3)(A), and Government Code section76000, subd. (a)(3)(A) shall apply retroactively. (See People v. McCoy(2007) 156 Cal.App.4th 1246, 1257.) Additionally, a $20.00 courtsecurity fee, pursuant to section 1465.8, applies to each conviction. (People v. Schoeb (2005) 132 Cal.App.4th 861, 865-866.) People v.Alford (2007) 42 Cal.4th 749, the California Supreme Court held that,consistent with People v. Wallace (2004) 120 Cal.App.4th 867, 870, foundthat the imposed fee upon every defendant convicted of a crime pay a $20court security fee pursuant to section 1465.8 is not punitive (see People v.Castellanos (1999) 21 Cal.4th 785), and may be applied to defendantswhose offenses were committed prior to the effective date of that sectionwithout being in violation of the prohibition against ex post facto laws asit is necessary to fund court security.

14. People v. Eddards (2008) 162 Cal.App.4th 712, the Third AppellateDistrict held that the court erred in ordering a defendant to pay restitutionto restitution fund plus a 10 percent administrative fee because theadministration fee is only statutorily authorized where restitution is madeto direct victim. (See § 1203.1) An order of probation, like an abstract ofjudgment, must specify the statutory basis of each fine or fee imposed andcannot be lumped together.

15. People v. Valencia (2008) 166 Cal.App.4th 1392, the Second AppellateDistrict, Division 5 held that a penalty could not be assessed underGovernment Code section 76104.6 [levying of an additional penalty of $1for every $10 upon every fine, penalty, or forfeiture imposed and collectedby courts for all criminal offenses], on court security fees. The penaltyunder section 76104.7 [providing for a penalty of $1 for every $10 in otherfines and penalties to pay for DNA testing], could only be imposed inaddition to a penalty imposed pursuant to section 76104.6. Where nopenalty was imposed pursuant to section 76104.6, court erred in imposingthe penalty pursuant to section 76104.7.

16. People v. DeFrance (2008) 167 Cal.App.4th 486, the Third AppellateDistrict held that the trial court did not abuse its discretion in imposing$10,000 restitution fine where defendant demonstrated it would bedifficult for him to pay fine at current prison wages but did not show

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absolute inability to ever pay fine. (People v. Drautt (1998) 73Cal.App.4th 577, 581.) The defendant must his inability to pay, and thecourt had the discretion to weigh the seriousness and gravity of the offensepursuant to section 1202.4, subdivision (d). Trial court’s imposition ofparole revocation fine was imposed in error where no parole was possible. (People v. Jenkins (2006) 140 Cal.App.4th 804, 819.)

17. People v. Valenzuela (2009) 172 Cal.App.4th 1246, the Second AppellateDistrict, Division 5 held that a fine of $300 imposed after appellant pleadto an offense pursuant to section 290, was an unauthorized sentencebecause at the time of his offense, section 290 only provided for a fine of$200 upon a first conviction. The prohibition against ex post fact lawsapplies to restitution fines. (Cf. People v. Saelle (1995) 35 Cal.App.4th27, 30 [a fine is calculated by the date of the offense].) Additionally, thetrial court erred in failing to impose mandatory penalty assessments, thestate court construction surcharge, and state surcharge upon the mandatoryrestitution fine imposed under section 290. Where the correct totalamount of the fine, penalty assessments, and surcharges exceeded theamount of fine that the trial court implicitly found that the defendant couldpay, the defendant was entitled to remand to determine whether he couldpay the correct amount. (See People v. Walz (2008) 160 Cal.App.4th1364, 1372.)

18. People v. Castellanos REHEARING GRANTED: FORMERLY AT: (2009)173 Cal.App.4th 1401, the Second Appellate District, Division 5 held thatadditional penalty assessments, the state surcharge, court constructionpenalty, and deoxyribonucleic acid penalties, must be imposed in additionto the fine imposed pursuant to section 1202.5, subdivision (a), fortheft-related cases, subject to the defendant’s ability to pay. All of theadditional charges are mandatory. (See § 1464, subd. (a); Govt. Code §76000, subd. (a)(1); § 1465.7, subd.(a); Gov’t Code § 70372; and Gov’t §§76104.6 and 76104.7.)

19. People v. Robertson (2009) 174 Cal.App.4th 206, the Third AppellateDistrict held that, the trial court may impose a 10 percent administrativefee to cover the county’s cost of collecting a “restitution fine” orderedpursuant to section 1202.4, subdivision (a)(3)(A). This court clarified itsopinion in People v. Eddards (2008) 162 Cal.App.4th 712, whichseemingly held that the court erred in ordering a defendant to payrestitution to the restitution fund plus a 10 percent administrative feebecause the administration fee is only statutorily authorized whererestitution is made to direct victim. (See § 1203.1)

20. People v. Brooks (2009) 175 Cal.App.4th 1, the Third Appellate Districtheld that convictions for misdemeanor offenses can be assessed pursuantto Government Code section 70373, subdivision (a)(1), where the act

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occurred before the assessment was passed since it was nonpunitive andtherefore did not violate prohibition against ex post facto laws. (People v.Alford (2007) 42 Cal.4th 749 [as it applies to § 1465.8, subd. (a)(1).)

21. People v. Castellanos (2009) 175 Cal.App.4th 1524, the Second AppellateDistrict, Division 5 held that a fine pursuant to section 1202.5, subdivision(a) (a crime prevention program fine), pertaining primarily to theft-relatedcrimes, is subject to additional penalty assessments, surcharges, andfurther penalties, if the defendant has the ability to pay.

22. People v. Castillo (2010) 182 Cal.App.4th 1410, the Third AppellateDistrict held that the trial court did not err in ordering defendant to pay a$30 criminal conviction assessment under Government Code section10373, which was enacted after date of defendant’s offense, but thedefendant’s conviction occurred after the statute’s effective date. Theassessment did not violate ex post facto principles because it was notpunitive, was not denominated a “fine,” was a small amount, and was notbased on the seriousness of a defendant’s crime. (See People v. Alford(2007) 42 Cal.4th 749, 754 [pertaining to the court security fee].)

23. People v. Fleury (2010) 182 Cal.App.4th 1486, the Third AppellateDistrict held that the imposition of the $30 court facilities assessmentmandated by Government Code section 70373 for crimes committedbefore the enactment of the statute does not violate state and federalprohibitions against ex post facto laws, as the legislature did not intend forthe assessment to constitute punishment, and the assessment is not sopunitive as to override the legislature’s intent. (See People v. Alford(2007) 42 Cal.4th 749, 754 [pertaining to the court security fee].)

24. People v. Davis (2010) 185 Cal.App.4th 998, the Second AppellateDistrict, Division 4 held that the new $30-35 count facility fee pursuant toGovernment Code section 70353 does not apply to cases in which thedefendant's conviction, was before January 1, 2009, the effective date ofthe statute. Where, as here, a civil disability flows as a consequence of theconviction, the majority an better rule is to require the entry of judgment. (Helena Rubenstein v. Younger (1977) 71 Cal.App.3d 406, 421.) Sincethere is no “civil disability” flowing from the small facilities feeassessment, the ordinary rule applies: the defendant was convicted whenhe entered the plea. Since the statute only applies to cases in which theconviction occurs on or after its effective date, it does not apply in thiscase.

25. People v. Phillips (2010) 186 Cal.App.4th 475, the Fifth Appellate Districtheld that Government Code section 70373, subdivision (a)(1), mandating a$30 court facilities assessment upon every conviction of a felony or amisdemeanor, applies to every conviction occurring on or after the statute's

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effective date, regardless of the date of the crime. (See People v. Castillo(2010) 182 Cal.App.4th 1410, 1414.)

26. People v. Knightbent (2010) 186 Cal.App.4th 1105, the Third AppellateDistrict held that under section 1202.5, subdivision (a), the defendant shallpay a fine of $10 in addition to any other penalty or fine imposed, which isused to implement crime prevention programs, and shall be in addition toother fees. (See § 1202.5, subd. (b).) The fine assessed under section1202.5 is not comparable with a restitution fine under section 1202.4which do not have other assessment attached. (See People v. Sorenson(2005) 125 Cal.App.4th 612, 617.) Additionally, the Court of Appealfollowed People v. Alford (2007) 42 Cal.4th 749, 755-759, and People v.Brooks (2009) 175 Cal.App.4th Supp. 1, 4, finding that the assessments tothe fines do not violate of ex post facto considerations. Here, appellant'scrime was committed before the passage of the legislation thatimplemented the fees imposed.

27. People v. Pacheco (2010) 187 Cal.App.4th 1392, the Sixth AppellateDistrict held that the trial court erred in ordering the defendant to paycertain fines and fees without a hearing on his ability to pay. Thedefendant did not forfeit objections to imposition of fines and fees in theabsence of an ability-to-pay determination because such claims were basedon insufficiency of the evidence and did not have to be asserted in trialcourt. (People v. Viray (2005) 134 Cal.App.4th 1186, 1217 [challenge toorder for attorney fees based on insufficiency may be challenged for thefirst time on appeal]; see also People v. Lopez (2005) 129 Cal.App.4th1508, 1536-1537 [same].) An order to pay fees of court-appointed counselis discretionary and requires proof of ability to pay. Finding of such abilitymay be express or implied but must be supported by substantial evidence(People v. Nilsen (1988) 199 Cal.App.3d 344, 437; People v. Kozeen(1974) 36 Cal.App.3d 918, 920), and referral to the county revenuedepartment for a determination of ability to pay does not meet thisstandard. The imposition of a booking fee within the meaning ofGovernment Code section 29550, subdivision (c), or Government Codesections 29550.1 or 29550.2, was error absent a determination of ability topay and a finding that the amount imposed was not greater than the actualcost of booking. Imposition of the probation supervision fee was errorwhere there was no evidence that the probation officer or the court made adetermination of defendant's ability to pay or that defendant was advisedof his right to have the court make this determination or that he waivedthis right, and where payment was made a condition of probation inviolation of statute providing that it be collectible as a civil judgment. Cost which are collectable as civil judgments, cannot be made a conditionof probation. (People v. Washington (2002) 100 Cal.App.4th 590, 592.) Payment of court security fee under section 1465.8 cannot be made a

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condition of probation. (People v. Alford (2007) 42 Cal.4th 749, 756,758.)

28. People v. Lopez (2010) 188 Cal.App.4th 474, the Fourth AppellateDistrict, Division 2 held that the requirement that the court impose afacilities assessment under Government Code section 70373 on defendantsconvicted of felonies and misdemeanors applies to all convictions incurredafter that section's effective date regardless of the commission date of thecrime. (People v. Phillips (2010) 186 Cal.App.4th 475; People v. Castillo(2010) 182 Cal.App.4th 1410, 1414; People v. Knightbent (2010) 186Cal.App.4th 1105.)

29. People v. Cortez (2010) 189 Cal.App.4th 1436, the Fourth AppellateDistrict, Division 3 held that court impose a facilities assessment underGovernment Code section 70373, applies to all “convictions” for criminaland vehicle code violations. The Court of Appeal also rejected appellant'scontention that there is an ex post facto violation since the statute wasenacted after appellant's crimes were committed, but before he wasconvicted. The fee authorized is triggered by the conviction not theunderlying criminal act. (People v. Davis (2010) 185 Cal.App.4th 998. Secondly, the fee does not act as a penalty (see People v. Fleury (2010)182 Cal.App.4th 1486, 1492), and thus ex post facto principles do notapply. (See People v. Alford (2007) 42 Cal.4th 749, 756.)

30. People v. Woods (2010) 191 Cal.App.4th 269, the Second AppellateDistrict, Division 5 held that the trial court erred in staying the mandatoryGovernment Code section 70373 court facility assessment (see People v.Hanson (2000) 23 Cal.4th 355, 362 [re: mandatory assessments]), when itplaced appellant on probation pursuant to section 1210.1, subdivision (a). (Proposition 36.) There is no authority that permits the assessment bestayed. (People v. Catteneo (1990) 217 Cal.App.4th 1577, 1589 [cannotstay a § 11372.4, subd. (a) enhancement].) While court may decline toimpose a section 1202.4, subdivision (b)(1) restitution fine in exceptionalcircumstances, it was error to stay the fine in absence of such findings.

31. People v. Sharret (2011) 191 Cal.App.4th 859, the Second AppellateDistrict, Division 5 held that where the defendant was convicted of twocounts, possession of heroin for sale, count 1, and sale of heroin, count 2,which arose out of a single incident wherein the defendant gave heroin toanother person, and ultimately it was given to an undercover officer. Thedefendant was then arrested and found in possession of more heroin, alongwith cash. The defendant was subject to a separate criminal laboratoryanalysis fee under Health and Safety Code section 11372.5, plus penaltiesand surcharges as to each of the two counts. Imposition of the drugprogram fee pursuant to Health and Safety Code section 11372.7 as to onlyone of two counts was not error where record was silent as to the

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defendant's ability to pay. (Health & Saf. Code § 11372.7, subd. (b).) Since such ability is a prerequisite to imposition of the fee, finding thatdefendant lacked such ability is implied where fee is not imposed (Peoplev. Turner (2002) 96 Cal.App.4th 1409, 1413, fn. 2), and the prosecution'sfailure to object when the court has the discretion to not impose the fee,forfeits the issue on appeal. (People v. Tillman (2000) 22 Cal.4th 300,303.) The criminal laboratory analysis fee is punitive (see People v. Alford(2007) 42 Cal.4th 749, 755; People v. Castellanos (1999) 21 Cal.4th 785,795 [if a fee or fine is punitive in nature it must be stayed if the substantivecount is stayed]), and must therefore be stayed whenever imposition ofsentence on the count to which it applies is stayed under section 654, andhere count 1 was stayed. However, it was proper to impose the courtsecurity fee of section 1465.8, subdivision (a)(1), even though count 1 wasstayed (see People v. Crittle (2007) 154 Cal.App.4th 368, 370), since thatfee is not punitive. (People v. Alford, supra, 42 Cal.4th at 755-757.)

32. People v. Kim (2011) 193 Cal.App.4th 836, the Sixth Appellate Districtadditionally held that the court held that Penal Code section 1465.8,subdivision (a), the court security fee, and the assessment on every felonyconviction pursuant to Government Code section 70373, subdivision (a)(1)are not subject to an automatic penalty assessment. Neither statuteprovides for considering a defendant's ability to pay, not do they providefor imposing the fee or assessment as a condition of probation. Such feesare collateral to a defendant's crime or punishment, are not oriented towarda defendant's rehabilitation, but toward revenue for the court, and thereforeshould not be a condition of probation. (People v. Pacheco (2010) 187Cal.App.4th 1392, 1403.)

33. People v. Orozco (2011) 199 Cal.App.4th 189, the Fifth Appellate Districtheld that the trial court did not err when it imposed an order for thedefendant to pay the cost of a probation report pursuant to section 1203.1b,even though he was sentenced to prison rather than being grantedprobation.

34. People v. Hoover (2011) 199 Cal.App.4th 1470, the Second AppellateDistrict, Division 6 held that the trial court did not err in finding that thedefendant was able to pay probation supervision and investigation fees atthe rate of $30 per month, as it was supported by evidence that thedefendant possessed a cell phone and a car and lived in an expensive area. Requiring the defendant to pay fees at a rate of $30 per month, while theyaccrued at the rate of $205 per month, was not unreasonable where thetotal fees would only reach $4,615. Section 1203.1b, subdivision (e)(2)precludes the court from basing a finding of ability to pay on a projectionof the defendant's financial condition more than one year into the future,but it does not preclude the court from requiring that he pay the costs over

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a period of more than one year where his current financial situationsuggests an ability to do so.

35. People v. Voit (2011) 200 Cal.App.4th 1253, the Sixth Appellate Districtheld that the court's oral pronouncement of the assessments takesprecedent over the written minute order. (People v. Sharret (2011) 191Cal.App.4th 859, 863-864.)

36. People v. Mason (DEPUBLISHED): FORMERLY AT: (2012) 206Cal.App.4th 1026, the Sixth Appellate District held that where the trialcourt imposed a "criminal justice fee" also known as a "booking fee",pursuant to Government Code section 29550.1, and not Government Codesection 29550, subdivision (c), or 29550.2, then there is no violation ofequal protection or the need to show the actual cost of booking for variousreasons. There is a distinction between defendants arrested by city police,who may be ordered to pay booking fee without a finding of ability to pay,and those arrested by certain other agencies, who may only be ordered topay the fee if ability to pay is found, does not violate the equal protectionclause because such persons are not similarly situated, as booking fees forcity arrestees are smaller. There is no statutory requirement that theamount assessed against defendant as a booking fee be the actual orapproximate cost of booking. The defendant’s claim that trial court erredin requiring him to pay booking fee to arresting agency without a findingof ability to pay constituted a substantial-evidence challenge and wascognizable for first time on appeal. The court distinguishes certainaspects, People v. Pacheco (2010) 187 Cal.App.4th 1392, 1399,(DISAPPROVED IN PEOPLE V. MCCULLOUGH (2013) 56 Cal.4th589) which held, do to the language of Government Code section 29550,subdivision (c), or 29550.2, that there was a requirement that the court findan ability to pay.

37. People v. Almanza (DEPUBLISHED); FORMERLY AT: (2012) 207Cal.App.4th 269, the Fourth Appellate District, Division 2 held thatGovernment Code section 29550.1 does not require a finding of ability topay the criminal justice administration fee required of a convicteddefendant arrested by city police. There is no requirement that the courthold an evidentiary hearing on the actual administrative costs of bookingto impose a statutory booking fee. The Court of Appeal recognizes thatPeople v. Pacheco (2010) 187 Cal.App.4th 1392, 1399 (DISAPPROVEDIN PEOPLE V. MCCULLOUGH (2013) 56 Cal.4th 589) came to theopposite conclusion as it pertains to determining the actual administrativecosts of booking the defendant.

38. People v. Robinson (2012) 209 Cal.App.4th 401, the Second AppellateDistrict, Division 5 held that the trial court erred in failing to impose acourt operations assessment required by section 1465.8, subdivision (a)(1)

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(People v. Crabtree (2009) 169 Cal.App.4th 1293, 1327-1328), and acourt facilities assessment required by Government Code section 70373,subdivision (a)(1), (People v. Woods (2010) 191 Cal.App.4th 269, 274),was an "unauthorized" sentence and subject to correction by the court onthe defendant’s appeal. Additionally, the Court of Appeal held thatcustody and conduct credits that exceed defendant’s sentence may not beused to "write off" assessments mandated by either statute.

39. People v. Sencion (2012) 211 Cal.App.4th 480, the Second AppellateDistrict, Division 5 held that the trial court erred when it imposed both arestitution fine and a parole revocation restitution fine as to each count of aconviction, (see People v. Soria (2010) 48 Cal.4th 58, 62-66; People v.Schoeb (2005) 132 Cal.App.4th 861, 865), nor may it base a restitutionfine on any count that has been stayed. (People v. Carlson (2011) 200Cal.App.4th 695, 710.) The trial court also erred when it failed to orallyassess a $40 court security fee (§ 1465.8, subdivision (a)(1)), or a $30court facilities fee. (Gov't Code § 70373), as they apply to each count ofwhich the defendant is convicted. (People v. Castillo (2010) 182Cal.App.4th 1410, 1415, fn. 3.) A court security fee, however, is notpunitive for purposes of sentencing for a stayed conviction (People v.Sharret (2011) 191 Cal.App.4th 859, 865 [the security fee is notpunishment]), nor is the court facilities fee (People v. Cortez (2010) 189Cal.App.4th 1436, 1443-1444) and both may be imposed even though thecount to which it attaches has been stayed.

40. People v. Villalobos (2012) 54 Cal.4th 177, the California Supreme Courtheld that where the amount of defendant’s mandatory restitution fine wasneither made a part of his plea agreement nor otherwise specified in theplea colloquy, it was left to the trial court’s discretion. (See § 1202.4,subd. (b)(1); see also People v. Crandall (2007) 40 Cal.4th 1301.) Thecourt's advisement error does not mean that the imposition of a substantialfine violates a plea agreement. Advisement error and a violation of a pleabargain are two different things.

41. People v. Hunt (2013) 213 Cal.App.4th 13, the Second Appellate District,Division 5 held that when the trial court imposes and then suspends afelony sentence, a section 1202.4, subdivision (b)(1) restitution fine shouldbe imposed, and a section 1202.44 probation revocation restitution fineshould be imposed and then stayed. The court should not Impose and staya parole revocation fine under section 1202.45 for parole restitution isimproper in this type of probation grant.

42. People v. Corrales (2013) 213 Cal.App.4th 696, the Second AppellateDistrict, Division 5 held that the trial court erred in failing to impose thedrug program fee (§ 11372.7, subd. (a), nor did it use the short handapproved in People v. Sharret (2011) 191 Cal.App.4th 859, 864, "plus

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penalty assessments." (See also People v. Voit (2011) 200 Cal.App.4th1353, 1373.) However, the matter was remanded for the court to make adetermination, within the meaning of section 11372.7, subdivision (b),whether the defendant had the ability to pay.

43. People v. McCullough (2013) 56 Cal.4th 589, the California SupremeCourt held that a $27017 jail booking fee, (Gov. Code §29550.2, subd.(a)) which the defendant contended that he had an inability to pay, is notreviewable on appeal absent a timely objection by the defendant during thesentencing hearing.

44. People v. Coleman (2013) 218 Cal.App.4th 353, the First AppellateDistrict, Division 5 held that the trial erred when it improperly delegatedto the probation department the determination whether the defendant hadthe ability to pay the drug program fee within the meaning of section11372.7, subdivision (a). (See People v. Corrales (2013) 213 Cal.App.4th696.) Reversal was required where a judicial finding of ability to paycould not be implied from the record, (Id., at p. 702), as the probationreport did not recommend the defendant pay the fee, did not analyze hisability to pay, and stated defendant had no assets, was unemployed, andsuffered from numerous health problems, including schizophrenia.

45. People v. Cruz (2013) 219 Cal.App.4th 61, the Third appellate Districtheld, following the lead of People v. Villalobos (2012) 54 Cal.4th 117, thatwhere the amount of a penal fine was neither made a part of defendant’splea agreement nor otherwise specified in the plea colloquy, it was left tothe trial court’s discretion. There was no requirement that the statutoryauthority for the fine be specified in the plea agreement.

46. People v. Ogg (2013) 219 Cal.App.4th 173, the Second AppellateDistrict, Division 6 held that the AIDS education fee under section1463.23 was improperly imposed, and was unauthorized, as the violationof section 288.5, is not one of those for which the fee is to be imposed.

47. People v. Snow (2013) 219 Cal.App.4th 1148, the Third Appellate Districtheld that he waived/forfeited his objection to pay the presentenceinvestigation report fee and a monthly probation supervision fee imposedby the court for failing to object in the trial court. General rule thatsufficiency of the evidence may be argued for first time on appeal does notapply to an ability-to-pay issue especially where the defendant had priornotice that court intended to order payment and the defendant did notobject or request a hearing. The court indicated that this matter iscontrolled by People v. McCullough (2013) 56 Cal.4th 589, and noted thatMcCullough disapproved of any indication to the contrary that hadpreviously been expressed in People v. Pacheco (2010) 187 Cal.App.4th1392.

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48. People v. Valenzuela (2013) 220 Cal.App.4th 159, the Sixth AppellateDistrict held that the crime prevention fine of $10 mandated by section1202.5 for the conviction of specified offenses, if a trial court determinesthe defendant is able to pay it, may not be challenged on ability-to-paygrounds for the first time on appeal. (See People v. McCullough (2013) 56Cal.4th 589, 599.) The failure to challenge the minimal fine on ability-to-pay grounds was not ineffective assistance where trial court could havemade the required finding based on the prospect of prison earnings.

49. People v. Hamed (2013) 221 Cal.App.4th 928, the Sixth Appellate Districtheld that where the defendant was convicted of possessing childpornography, he is subject to an additional fine under section 290.3,subdivision (a), as applied to an offense committed March 5, 2012, pay afine of $300 for a first offense. (See People v. High (2004) 119Cal.App.4th 1192, 1200. Pursuant to High, all fines are part of thejudgment, which the abstract of judgment must digest or summarize. Some fines are subject to penalty assessments, surcharges, and penaltiesthat are "parasitic to an underlying fine, and can increase a penalty by up to310 percent. (See People v. Voit (2011) 200 Cal.App.4th 1353, 1374.) Numerous of these assessments and penalties are described here and inPeople v. Castellanos (2009) 175 Cal.App.4th 1524, 1528-1530, andPeople v. Sharret (2011) 191 Cal.App.4th 859, 864, and include,depending on the offense, a 100 percent state penalty assessment undersection 1464, a 70 percent additional penalty under Government Codesection 76000, subdivision (a)(1), a 20 percent state surcharge undersection 1465.7, up to a 50 percent state court construction penalty underGovernment Code section 70372, a 20 percent additional penalty foremergency medical services under Government Code section 76000.5, a10 percent additional DNA penalty under Government Code section76104.6(a)(1), and a 30 percent additional state-only DNA penalty underformer Government Code section 76104.7. Where abstract of judgmentfailed to specify the base fine, here the $300, and contained an erroneousamount for the total of fines, penalties, and surcharges, which correctlycalculated were $900, remand was unnecessary and the abstract ofjudgment was subject to correction. (People v. Valenzuela (2009) 172Cal.App.4th 1246, 1249-1250 [an unauthorized sentence can be correctedfor the first time on appeal].)

50. People v. Fandinola (2013) 221 Cal.App.4th 1415, the Third AppellateDistrict held that the trial court erred in imposing a probation supervisionfee in this case where appellant was sentenced under the Realignment Actof 2011 (§ 1170, subd. (h)), and was ordered to serve a term of 3 years incounty jail, and then serve a 2-year term of mandatory supervision. Here,since appellant was not given a grant of probation, or a conditionalsentence, within the meaning of section 1203.1ab and 1203.1b, it was errorto impose the supervision fee. Nor can the order to pay the cost of

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probation supervision be considered part of the terms, conditions, andprocedures generally applicable to persons placed on probation, and it isnot authorized by section 1170, subdivision (h)(5)(b)(I).

51. People v. Rios (2013) 222 Cal.App.4th 542, the Sixth Appellate Districtheld that, a section 1202.4 restitution fine may only be imposed once at thetime the court pronounces judgment, and the court may not increase therestitution fine if probation is revoked. (People v. Perez (2011) 195Cal.App.4th 801, 805.) The trial court erred when it imposed a courtfacilities assessment of $30 for each count under Government Codesection 70373 and a court security fee of $40 for each count under section1465.8 at the time when probation was revoked when it had alreadyimposed those fees when the defendant was granted probation. (People v.Cropsey (2010) 184 Cal.App.4th 961, 964-965.)

52. People v. Ghebretensae (2013) 222 Cal.App.4th 741, the Sixth AppellateDistrict held that an order to pay a monthly probation supervision fee wasnot authorized where the defendant was subjected to mandatorysupervision (see § 1170, subdivision (h)(5)(B)(i), and not probation, andthe legislature did not intend the two to be interchangeable.

53. People v. Durst (2014) 225 Cal.App.4th 108, the Third Appellate Districtheld that appellant forfeited his contentions pertaining to the imposition ofbooking fees under Government Code section 29550.2, and assessingattorney fees under section 987.8, and even if not forfeited, they arewithout merit as they are materially different than criminal fines which aresubject to the right to a jury trial, and the determination, by the jury that hehas the ability to pay. (See Southern Union v. United States (2012) 567U.S. [183 L.Ed.2d 318] [pertaining to fines and not fees].) Feesimposed pursuant to Government Code section 29550.2 and section 987.8are not penalties inflicted for the commission of crimes and do not dependon a determination concerning the extent of the crimes; administrative feesdo not have to be determined by a jury. (See People v. Rivera (1998) 65Cal.App.4th 705, 707-708.)

54. People v. Wasbotten (2014) 225 Cal.App.4th 306, the Fourth AppellateDistrict, Division 2 held that the defendant does not have a constitutionalright to trial by jury pursuant to Blakely v. Washington (2004) 542 U.S.296, [124 S.Ct. 2531, 159 L.Ed.2d 403 and Apprendi v. New Jersey (2000)530 U.S. 466 to have the jury determine the amount of victim restitution. (See Southern Union v. United States (2012) 567 U.S. [183 L.Ed.2d318] [pertaining to fines and not fees]; see also People v. Pagan (2013)213 Cal.App.4th 574, 585-586.)

55. People v. Povio (2014) 227 Cal.App.4th 1424, the Sixth Appellate Districtheld that the trial court erred, prior to imposing probation supervision fee

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(see § 1203.1b, in failing to find that the defendant has the ability to paysuch a fee, which the legislature does not consider to be a de minimus fee.The Court of Appeal distinguished the booking fee addressed in People v.McCullough (2013) 56 Cal.4th 589, where ability to pay is not required.Finding of the ability to pay cannot be implied. Trial court must determinea defendant’s ability to pay the statutory drug program fee, although thecourt is not required to state its finding on the record. (People v. Martinez(1998) 65 Cal.App.4th 1511, 1518.) If the record is silent, the trial courtwill be presumed to have lawfully inquired as to defendant’s ability to paythe fee. (People v. Corrales (2013) Cal.App.4th 696, 702; People v.Castellanos (2009) 175 Cal.App.4th 1524, 1531.) The same is true for theAIDS program education fee, but in light of all of the fees, the matter isremanded for an ability to pay hearing. (See People v. Valenzuela (2009)172 Cal.App.4th 1246, 1250.) The laboratory analysis fee within Healthand Safety Code section 11372.5, subdivision (a), is $50, but themandatory assessments on top of that are $155. Imposition of a conditionof probation, here a 300-yard stay-away condition, must be sufficientlyprecise in order to inform a person of what is prohibited. (In re Sheena K.(2007) 40 Cal.4th 875, 890.) Where a person might unknowingly engagein a prohibited activity, the condition must include a scienter requirement.(People v. Freitas (2009) 179 Cal.App.4th 752.)

56. People v. Trujillo (2015) 60 Cal.App.4th 850, the California SupremeCourt held that, consistent with People v. McCullough (2013) 56 Cal.4th589, where the California Supreme Court held that a $27017 jail bookingfee, (Gov. Code § 29550.2, subd. (a)) which the defendant contended thathe had an inability to pay, is not reviewable on appeal absent a timelyobjection, a defendant forfeits an appellate challenge to an order that hepay probation supervision under section 1202.44 and presentenceinvestigation fees imposed under section 1203.1b, which prescribesspecific procedures for imposition of such fees, where, in the trial court. The defendant neither objected to the fees nor asserted an inability to paythem.

57. People v. Aguilar (2015) 60 Cal.App.4th 862, in a companion case toPeople v. Trujillo (2015) 60 Cal.App.4th 850, the California SupremeCourt held that, again, consistent with People v. McCullough (2013) 56Cal.4th 589, the California Supreme Court held that the forfeiture ruleapplies to challenges to fees imposed at sentencing, including an order forreimbursement of the fees paid to appointed trial counsel under section987.8, subdivision (h).

58. People v. Vasquez (2015) 239 Cal.App.4th 1512, the Second AppellateDistrict, Division 6 held that there was sufficient evidence of a burglary ofan inhabited dwelling where new owner had made progress toward

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moving in, and these included transferring the utilities to her name,installing locks, moving personal goods into the residence, and painting agarage wall. (See People v. Chun (2009) 45 Cal.4th 1172, 1199 [aninhabited dwelling is one in which persons reside and where occupants aregenerally in and around the premises].) However, she had not lived in theresidence. Additionally, appellant waived the issue of ability to pay theimposition of the probation investigation fee or a criminal justiceadministrative fee for his failure to object. (See People v. Aguilar (2015)60 Cal.4th 862, 866; People v. Trujillo (2015) 60 Cal.4th 850, 858-859.)

59. People v. Uffelman (2015) 240 Cal.App.4th 195, the Third AppellateDistrict held that the trial court did not err when it imposed a fee undersection 1202.5, which prescribes a mandatory $10 fine for conviction ofburglary and other theft offenses, but it also does not preclude theimposition of a fine for such an offense under section 672, which providesthat where no fine is prescribed for an offense, the court may impose a fineof up to $1,000 for a misdemeanor and $10,000 for a felony. Nothing inthe language or legislative history of section 1202.5 suggests that thelegislature, by approving the mandatory $10 fine, intended to deprive trialcourts of the right to impose the larger, discretionary fine for suchoffenses. (See Cf. People v. Clark (1992) 7 Cal.App.4th 1041, 1045-1046.)

19. NEW SENTENCING HEARING

A. APPELLANT MAY GET A NEW COMPLETELY NEWSENTENCINGHEARING ON REMAND WHEN THE PREVIOUS COURTRETIRES

1. United States v. Sanders (9th Cir. 2005) 421 F.3d 1044, the Ninth CircuitCourt of Appeal held that where the defendant was sentenced prior toBooker, and sentencing judge is not available to conduct a limited remandunder United States v. Ameline (2005) 409 F.3d 1073, for the purpose ofdetermining whether the sentence might have been different had guidelinesbeen treated as advisory rather than mandatory, original sentence must bevacated and case remanded for a full resentencing hearing.

B. THE MATTER MUST BE REMANDED FOR A NEW SENTENCINGHEARING FOR THE TRIAL COURT TO CHANGE THE RESULT

1. People v. Lincoln DEPUBLISHED; FORMERLY AT: (2006) 144Cal.App.4th 1016, the Second Appellate District, Division 7 held that thetrial court exceeded its jurisdiction to change the sentence after the matterwas remanded for the limited purpose of lifting the stay on assaultconvictions after the manslaughter convictions had been reversed. Eventhough People v. Burbine (2003) 106 Cal.App.4th 1250 holds that a trial

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court has the right to consider the entire sentence and is not limited tostriking illegal portions of it when it is remanded for resentencing, theCourt of Appeal did not remand for that purpose. The Court of Appealremanded for a retrial on the manslaughter counts, and if the prosecutionchose not to retry those counts, then the stays would be lifted on theassault counts; the Court of Appeal tied the hands so to speak of the trialcourt, and was not giving it discretion to resentence; therefore the trialcourt’s imposition of consecutive sentences for the assault counts, must bereversed.

2. Greenlaw v. United States (2008) 554 U.S. 237, [171 L.Ed.2d 399, 128S.Ct. 2559], the United States Supreme Court held that where district courterroneously sentenced the defendant to a term below the statutoryminimum sentence and the defendant appealed, but the government neitherappealed nor cross-appealed, the appellate court could not order anincrease in defendant’s sentence. Without exception, an appellee must filea cross-appeal to justify a remedy in favor of appellee. In a “sentencingpackage case” involving multi-count indictments and a successful attackon some, but not all of the counts of conviction, an appellate court mayvacate the entire sentence on all counts so that the trial court canreconfigure the sentencing plan.

C. UNAUTHORIZED SENTENCE

1. People v. Ayers (2004) 119 Cal.App.4th 1007, the Second AppellateDistrict, Division 7, held that the trial court’s erroneous failure to eitherdouble a subordinate prison term for second-striker or strike theprior-conviction finding with respect to that count (see People v. Nguyen(1999) 21 Cal.4th 197, 207), resulted in an “unauthorized sentence,”requiring reversal on appeal despite lack of objection in trial court.

2. People v. Dial (2005) 130 Cal.App.4th 657, the First Appellate District,Division 2 held that appellant cannot attack, on appeal from an underlyingconviction, the taking and retention of samples under mandatoryrequirements of section 296, the DNA Act. Further, under the ThreeStrikes Law, section 667, subd. (c), indicates, unless the court strike aprior, essentially pursuant to Romero, then the strike sentence must beimposed. The Court of Appeal failed to rule on the issue of whether thecourt could have “stayed” rather than strike the prior, pursuant to People v.Aubrey (1998) 65 Cal.App.4th 279, 283-285), since the issue was firstraised at the time of the oral argument, and the parties had not had achance to brief the issue. (See Kinney v. Vaccari (1980) 27 Cal.3d 348,356-357, fn. 6.) Additionally, it is clear that the defendant cannot beplaced on probation, and be sentenced to state prison at the same time. (See People v. Marks (1927) 83 Cal.App. 370, 376-377.)

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3. People v. Hiscox (2006) 136 Cal.App.4th 253, the First Appellate District,Division 3 held that where the defendant was charged with committingcertain sexual offenses during a designated time period, which began priorto effective date of “One Strike” law (§ 667.61) November 30, 1994, andended after that date, and where the prosecution did not prove that theoffenses occurred after that date, sentencing under section 667.61 violatedex post facto clauses. An ex post facto violation resulting in anunauthorized sentence may be raised on appeal even if the defendant failedto object. (People v. Zito (1992) 8 Cal.App.4th 736, 741-742.)

4. People v. Jordan (2006) 141 Cal.App.4th 309, the Sixth Appellate Districtheld that the court erred in staying the second of two five-year seriousfelony enhancements within the meaning of section 667, subd. (a)(1). Even though the defendant failed to object to the “sentence structure”when it was announced, the court, on remand, must restructure thesentence where the defendant did not agree in a plea bargain to conditionhis waiver of jury trial on court staying sentence enhancement. (SeePeople v. Buttram (2003) 30 Cal.4th 773, 789 [defendant had the right toargue for an appropriate individualized sentence within the constraints ofthe bargain, and as a result, he maintained his right to challenge the court’sexercise or lack thereof, of that discretion.])

5. People v. Garcia (2007) 147 Cal.App.4th 913, the Sixth Appellate Districtheld that, pursuant to People v. Howard (1997) 16 Cal.4th 1081, it waserror for the court, who revoked probation and sentenced defendant toprison, to set aside a previous execution of sentence suspended sentence,wherein the prior court had ordered sex offender registration. To dootherwise would promote forum shopping. (See People v. Superior Court(Scofield) (1967) 249 Cal.App.2d 727, 734.)

6. In re Renfrow (2008) 164 Cal.App.4th 1251, the Third Appellate Districtheld that when a defendant receives a suspended prison term andprobation, but then he violates probation, and the trial court revokesprobation and determines the suspended prison term, it erred and imposedan “unauthorized” sentence when it omitted an applicable enhancement. (See People v. Howard (1997) 16 Cal.4th 1081, 1088 [the court must orderthe exact sentence into effect].) Therefore, it subsequently did not err byimposing an authorized prison term that exceeded the unauthorized andpreviously suspended term when it imposed the section 12022.7,subdivision (a) enhancement in addition to the previously imposed ADW. The failure to impose or strike an enhancement is a legally unauthorizedsentence, and is subject to correction. (People v. Bradley (1998) 64Cal.App.4th 386, 391.)

7. People v. Vizcarra (2015) 236 Cal.App.4th 422, the Fourth AppellateDistrict, Division 1 held that in general, the state constitutional rule that

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double jeopardy and due process considerations preclude increasing thesentence of a defendant on remand following defendant’s successfulappeal (see People v. Henderson (1963) 60 Cal.2d 482; People v.Mustafaa (1994) 22 Cal.4th 1305; People v. Torres (2008) 163Cal.App.4th 1420), do not apply where the original sentence wasunauthorized as a matter of law. Additionally, the Court of Appeal heldthat based on law of the case and collateral estoppel preclude him fromrelitigating this issue. (See Lucido v. Superior Court (1990) 51 Cal.3d 335,341 [re: collateral estoppel]; People v. Boyer (2006) 38 Cal.4th 412, 441[re: law of the case, and it will not be applied where it will lead to anunjust result].) On remand, the trial court increased the defendant'ssentence from 15 to 22 years by correctly doubling a consecutive count ofattempting to dissuade a witness, which the initial court failed to do undersection 667, subdivision (e)(1), and then by adding the five-year priorserious felony conviction enhancement within the meaning of section 667,subdivision (a)(1). However, what the opinion does not indicate is thatthe section 667, subdivision (a) enhancement was not plead initially,thereby establishing a notice problem. Is this a problem under Mancebo? The Supreme Court should grant review on these issues.

D. RE-SENTENCING UNDER SECTION 1170, SUBDIVISION (D)

1. People v. Torres (2008) 163 Cal.App.4th 1420, the Fifth Appellate Districtheld that section 1170, subdivision (d), which provides that when asentence is recalled, a trial court may resentence defendant as if defendanthad not previously been sentenced, provided that the new sentence doesnot exceed the original sentence that is not unauthorized. Here, since thedefendant’s original sentence was illegal and required correction, butcould be restructured to bring it within the limits of the original sentence,the restriction of section 1170, subdivision (d) still applied as it was not anunauthorized sentence that could not be corrected without exceeding theoriginal 0sentence. In other words, this was not a sentence that establishedunauthorized leniency. (See People v. Mustaffa (1994) 22 Cal.App.4th1305, 1311-1312.)

2. People v. Blount (2009) 175 Cal.App.4th 992, the Fourth AppellateDistrict, Division 1 held that the court did not err in failing to alter thelength of sentence from that agreed upon as part of a negotiateddisposition under section 1170, subdivision (d). Section 1170, subdivision(d) does not provide the trial court with any broader discretion to imposesentence than that court possessed at initial sentencing and thus does notprovide trial court with authority to override terms of a negotiated pleabargain and impose a different sentence than that agreed to by the parties.(See People v. Segura (2008) 44 Cal.4th 921, 930 [acceptance of theagreement binds the court to the agreement]; People v. Shelton (2006) 37

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Cal.4th 759, 767 [a plea agreement is like a contract].) The court mayreject the agreement, but cannot alter it.

20. DISCRETION TO SET CUSTODY TIME IN DEPARTMENT OF JUVENILEJUSTICE (FORMERLY CYA)

1. In re Sean W. (2005) 127 Cal.App.4th 1177, the First Appellate District,Division 2 held that the trial court erred in failing to take into account, insetting appellant’s maximum confinement time in the California YouthAuthority, the 2003 amendment to Welfare and Institutions Code section731, subd. (b), which granted to the juvenile court the discretion to set themaximum term of a California Youth Authority commitment at less thanmaximum term of confinement for adult convicted of same offense. As aresult of its failure to consider such a disposition, the court committedreversible error.

21. SEX REGISTRATION

A. SEX REGISTRATION FOR FELONIES

1. People v. Musovich (2006) 138 Cal.App.4th 983, the Third AppellateDistrict held that where the defendant was charged with violating formersection 290, subd. (g)(2), by being “a person required to register [as a sexoffender] who did willfully violate any requirement of this section,” andthe prosecutor elected to proceed solely on the theory that the defendantwas guilty if he did not update his registration within five days of the datethe parole officer allegedly discovered he was no longer at his registeredaddress, the court correctly instructed the jury based on that theory, andany error in omitting an instruction specifically referencing 290, subd.(a)(1)(A) concerning obligation to update registration was harmlessbeyond a reasonable doubt where sole issue in contention was whetherdefendant was still living at the registered address when the parole officervisited.

2. In re Derrick B. (2006) 39 Cal.4th 535, the California Supreme Court heldthat it was error to order the minor to register under section 290, subd.(a)(2)(E), as a sex offender, unless the offenses are among those listed insubd. (d)(3), which does not include sexual battery.

3. People v. Hofsheier (2006) 37 Cal.4th 1185, the California Supreme Courtheld that the requirement that every defendant 21 years of age or olderconvicted of voluntary oral copulation with a person between the ages of16 and 18 register as a sex offender violates constitutional right to equalprotection, since defendant 21 or older who has voluntary sexualintercourse with a person between 16 and 18 is not subject to the

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mandatory registration requirement and there is no rational basis for thedistinction.

4. People v. Gonzales (2007) 149 Cal.App.4th 304, the Second AppellateDistrict, Division 6, held that pursuant to Penal Code section 290, subd.(g)(2), which provides that failure by a sex offender registrant to notifyauthorities of a change of address constitutes a felony if the underlyingoffense requiring registration is a felony, the court does not have thediscretion to impose either felony or misdemeanor punishment, but mustimpose felony punishment.

5. People v. Fielder (2007) 154 Cal.App.4th 712, the Fourth AppellateDistrict, Division 1 held that a registered sex offender’s act of failing tonotify authorities of his whereabouts on three separate occasions wereseparate acts for which three separate punishments could be imposed. (See People v. Meeks (2004) 123 Cal.App.4th 695, 705-706; see alsoPeople v. Davis (2002) 102 Cal.App.4th 377.)

6. People v. Garcia (2008) 161 Cal.App.4th 475, the Second AppellateDistrict, Division 1 held that in ruling on whether to grant discretionaryrelief from lifetime sex offender registration requirement, the court erredin its conclusion that it should not consider circumstances subsequent todefendant’s conviction. The remand is to hold a hearing pursuant toPeople v. Hofsheier (2006) 37 Cal.4th 1185, but since sex registration innot punishment pursuant to People v. Castellanos (1999) 21 Cal.4th 785,799, it would not be in violation of a prohibited ex post facto application ifthe court imposes the registration after the hearing.

7. People v. Hernandez (2008) 166 Cal.App.4th 641, the Second AppellateDistrict, Division 2 held that lifetime sex offender registration for offenderconvicted of oral copulation with minor between ages of 14 and 16, whilegranting the trial court discretion as to whether to impose the requirementon an offender convicted of oral copulation with minor between ages of 16and 18, makes an irrational distinction and violates equal protectionclauses of the state and federal constitutions. (See People v. Hofsheier(2006) 37 Cal.4th 1185; People v. Garcia (2008) 161 Cal.App.4th 475.) Defendant’s appeal from order denying post-plea motion to vacate sexoffender registration requirement was not an attack on the underlying pleaof no contest or defendant’s conviction, and thus did not require acertificate of probable cause. (People v. French (2008) 43 Cal.4th 36, 43.)

8. People v. Milligan REHEARING GRANTED; FORMERLY AT: (2008)166 Cal.App.4th 1208, the Fourth Appellate District, Division 3 held thatthe 2003 amendment to section 290 [requires sex offenders to register andnotify local law enforcement within five working days of changingresidence], is regulatory, not punitive, in nature and does not violate ex

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post facto prohibition as applied retroactively to defendant, who wasrequired to register as a sex offender in 1987. The defendant’s challengeto 2005 amendment, which imposes a duty to register even when adefendant’s conviction has been dismissed unless defendant obtains acertificate of rehabilitation and is entitled to relief from registration, wasnot ripe for adjudication because amendment will only apply to defendantif and when a court permits him to withdraw his guilty plea and dismissescharge against him. Statutes enacted after defendant’s registrationrequirement arose requiring public notification and access to sex offenderinformation do not constitute punishment and would not violate the expost facto clauses if applied retroactively to defendant. Retroactiveapplication of DNA collection and sampling requirements are not an expost facto violation so long as there remains a current requirement toregister.

9. Lewis v. Superior Court (2008) 169 Cal.App.4th 70, the Sixth AppellateDistrict held that where petitioner filed a motion in superior courtrequesting that court lift lifetime registration requirement 20 years afterpetitioner was ordered to register, pursuant to People v. Hofsheier (2006)37 Cal.4th 1185, and prosecution conceded that mandatory sex offenderregistration violated petitioner’s right to equal protection, appellate courttreated petitioner’s appeal as petition for writ of mandate. Where recordindicated that neither petitioner’s 1987 conviction nor petitioner’ssubsequent criminal history could support an order requiring sex offenderregistration, petitioner was entitled to writ relief directing superior court torelieve petitioner of sex offender registration requirement.

10. People v. Williams (2009) 171 Cal.App.4th 1667, the Fifth AppellateDistrict held that there was sufficient evidence to establish that appellantdid not register within 5 “working days” of moving back to Madera afterhis release from prison. Appellant contended that there were only 10days-not including the day of his release-during which he could haveestablished residency, and only 6 working days during that period, and twoof which should not have counted since he could only stay with a friendone day, and at a Mission one day due to its proximity to a school. TheCourt of Appeal merely found that he began residing in Madera the day hecame back to the city, especially since he had relatives in the city. Also,this appellant was sentenced to 25 to life based on his Three Strikesentence. Therefore, the defendant’s ability to remain at one location for 5consecutive days was not required to establish residence for purposes ofsection 290, subdivision (a)(1)(A).

11. People v. Ranscht (2009) 173 Cal.App.4th 1369, the Fourth AppellateDistrict, Division 1 held that there was an equal protection violation formandating lifetime sex offender registration for an offender convicted ofsexually penetrating a 13-year-old minor, pursuant to People v. Hofsheier

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(2006) 37 Cal.4th 1185, because a similarly situated offender convicted ofunlawful sexual intercourse with a victim the same age would not facemandatory lifetime registration. This court disagrees with the rationale ofPeople v. Manchel (2008) 163 Cal.App.4th 1108.

12. People v. Luansing (2009) 176 Cal.App.4th 676, the Second AppellateDistrict, Division 2 held, consistent with People v. Hofsheier (2006) 37Cal.4th 1185, that subjecting defendant to mandatory sex offenderregistration based on his conviction for oral copulation with a victim morethan 10 years his junior and under the age of 16 violated equal protection. This court agreed with the rationale of People v. Ranscht (2009) 173Cal.App.4th 1369, and rejected the analysis of People v. Manchel (2008)163 Cal.App.4th 1108.

13. People v. Wallace (2009) 176 Cal.App.4th 1088, the First AppellateDistrict, Division 3 held that pursuant to section 290, subdivision (f)(1), asit read in April 2007, evidence, that a sex offender as of a specified datemore than five working days after he registered with police was no longerliving at the address at which he had most recently registered, and that hefailed to notify the agency with which he registered or any other agencyafter the last registration date that he was leaving or had left that address,was sufficient to prove that the defendant failed to notify the appropriateagency “of the move, the new address or transient location, if known, andany plans he or she has to return to California.” There was no requirementthat the prosecution also prove that the defendant had established a newaddress. The prosecution met its burden of proof with respect to actualknowledge of the sex offender registration requirement by offeringevidence that the defendant received and acknowledged receivinginformation from several representatives of the police regarding his legalduty to notify the agency upon changing his address when he personallyappeared to register on several occasions. The instruction that in order tofind the defendant guilty of violating former section 290, subdivision(f)(1), the jury had to find defendant “actually knew of his duty to registeras a sex offender and specifically of his duty to register within fiveworking days of a change of residence”, was inaccurate to the extent itreferred to a duty to register rather than a duty to notify, but that error washarmless beyond a reasonable doubt where there was strong evidencedefendant actually knew he was under a duty to notify. Under formersection 290, subdivision (a)(1)(A), as amended in 2006, providing that asex offender “for the rest of his or her life while residing in California . . .shall be required to register with the chief of police of the city in which heor she is residing, or the sheriff of the county if he or she is residing in anunincorporated area or city that has no police department,” the prosecutionis not required to prove the defendant’s exact new address or that hemoved to a new location within the same county, but must prove that

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defendant moved to a location within California. The trial court’s failureto so instruct the jury was prejudicial.

14. People v. Picklesimer (2010) 48 Cal.4th 330, the California SupremeCourt held that an individual who is no longer in custody for violatingsection 288a, subdivision (b)(1) and whose appeal is final, may only obtainrelief from mandatory lifetime sex offender registration (§ 290), based onequal protection (see People v. Hofsheier (2006) 37 Cal.4th 1185), by wayof a petition for writ of mandate in the trial court. In cases wheremandatory sex offender registration has been shown to violate equalprotection, the procedure that most closely matches legislative intent is notautomatic removal of a sex offender from the state sex offender registry,but an after-the-fact discretionary determination whether removal isappropriate.

15. People v. Jeha (2010) 187 Cal.App.4th 1063, the Third Appellate Districtheld that a violation section 289, subdivision (d) (penetration with aforeign object, unlike the offense in People v. Hofsheier (2006) 37 Cal.4th1185 (consensual oral cop), did not violate state and federal equalprotection guarantees because the statute neither implicated a fundamentalright nor operated to the singular disadvantage of a suspect class, and borea rational relationship to a legitimate state purpose. (Kubik v. ScrippsCollege (1981) 118 Cal.App.3d 544, 552.) The defendant's mandatorylifetime sex offender registration within the meaning of section 290, didnot infringe a fundamental right to privacy in violation of the federal andstate rights to substantive due process because the purpose it served, whichwas regulatory and nonpunitive, was neither arbitrary nor unreasonable. (People v. Picklesimer (2010) 48 Cal.4th 330, 344; People v. Hofsheier,supra, 37 Cal.4th at p. 1196.)

16. People v. Mosley (DEPUBLISHED); FORMERLY AT: (2010) 188Cal.App.4th 1290, the Fourth Appellate District, Division 3 held that it isnow clear that facts supporting the imposition of discretionary sexoffender registration must be found true by a jury beyond a reasonabledoubt (see Apprendi, Booker and Cunningham), since imposition of such arequirement as part of sentencing on an underlying offense increases thepenalty for that offense beyond the statutory maximum. Jessica's Lawrequirement (Proposition 83), that registered sex offender live more than2,000 feet from any school or playground makes the registrationrequirement “overwhelmingly punitive” (People v. Castellanos (1999) 21Cal.4th 785, 795), for purposes of the Sixth Amendment right to trial byjury.

17. People v. Singh (2011) 198 Cal.App.4th 364, the Fourth AppellateDistrict, Division 1 held that unlike the offense in People v. Hofsheier(2006) 37 Cal.4th 1185 (consensual oral cop), subjecting sex offenders

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convicted under section 288, subdivision (a), to mandatory sex offenderregistration does not violate equal protection, because offenders convictedunder this statute are not similarly situated to persons convicted ofunlawful sexual intercourse with a minor, oral copulation with a minor, orsexual penetration with a minor. Section 288, subdivision (a) affords aspecific protection to minors under the age of 14 and is a specific intentoffense whereas these other crimes are general intent offenses againstminors under the age of 18. This court also distinguished its prior decisionin People v. Ranscht (2009) 173 Cal.App.4th 1369.

18. People v. Tuck (2012) 204 Cal.App.4th 724, the First Appellate District,Division 3 held that the trial court does not have discretion under section1385 to grant a dismissal in the interests of justice to relieve a defendant ofthe duty to register as a sex offender. The mandatory requirement that thedefendant register as a sex offender because of a conviction for section288, subdivision (a), does not violate the constitutional guarantee of equalprotection. (People v. Hofsheier (2006) 37 Cal.4th 1185 [consensual oralcop].) A defendant convicted of lewd conduct on a minor under 14, arenot similarly situated with persons convicted of sex offenses under otherstatutes that do not require the minor victim to be so young. However, thedefendant can apply for a certificate of rehabilitation to relieve himself ofthe registration requirement.

19. People v. Allexy (2012) 204 Cal.App.4th 1358, the Third District held thatthe trial judge erred by ordering the defendant, who pled guilty to childendangerment, which is an offense for which sex offender registration isdiscretionary and not mandatory, to register as a sex offender followingrevocation of probation where no such order was made at sentencing, butthe decision was bifurcated if and until the defendant violated probation. The trial court may, however, order registration at time of sentencing butsuspend the requirement, thus reserving the right to impose it if probationis subsequently revoked. (See § 290.006.) The trial court’s error inordering registration following probation revocation did not requirereversal, where the judge announced at sentencing that he would orderregistration if probation were later revoked, and the claim of error wasforfeited or the error invited because defense counsel acquiesced to thecourt’s procedure.

20. People v. Gonzalez (2012) 211 Cal.App.4th 132, the Fourth AppellateDistrict, Division 2 held that the trial court did not err when it imposed amandatory sex offender registration requirement, under section 290, to thedefendant who was convicted of possession of child pornography, (§311.11, subd. (a)) but not on persons convicted of statutory rape does notviolate equal protection, and therefore, according to this court did notviolate People v. Hofsheier (2006) 37 Cal.4th 1185 [consensual oralcop].). The Court of Appeal found that the defendant could or did not

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show that the minors in the photographs acted voluntarily. The possessionof child pornography is distinct from statutory rape in multiple respects onwhich the legislature could rationally rely.

21. Shoemaker v. Harris (2013) 214 Cal.App.4th 1210, the Second AppellateDistrict, Division 1 held that it is not a violation of the equal protectionclause, and the dictates of People v. Hofsheier (2006) 37 Cal.4th 1185,and/or People v. Picklesimer (2010) 48 Cal.4th 330 [an equal protectionclaim, where the claimant is not in custody or restricted, must be by way ofwrit of mandate].) The defendant was convicted in 2004 of misdemeanorpossession of obscene material of minors engaged in sexual conduct (see§§ 311.1 and 311.3). Appellant complains that he should not have to havea lifetime registration requirement as a sex offender. He argues thatwhereas defendants convicted of certain other offenses, such as oralcopulation with a minor, are not so required, except at the discretion of thesentencing court, the mandatory registration due to the fact that sections311.1, and 311.3 are listed in section 290, subdivision (c), violates EqualProtection Clause. This Court of Appeal disagrees with the defendant'scontentions on the basis that the distinction has a rational basis because ofconnection between child pornography and child sexual abuse.

22. People v. Douglas M. (2013) 220 Cal.App.4th 1068, the First AppellateDistrict, Division 2 held that the amendments to section 1203.067(Chelsea's Law), setting forth various new probation conditions forregistered sex offenders, may not be applied retroactively to change theterms and conditions of probation for probationers who committed theiroffenses before the effective date of the amendment. Because thepresumption of prospectivity of Penal statutes cannot be rebutted, theCourt of Appeal concluded that the provisions of the amended law maynot be applied retroactively to change the terms and conditions ofprobation for probationers who committed their offenses before theeffective date of the amendments.

23. People v. Tirey (2013) 221 Cal.App.4th 549, the Fourth Appellate District,Division 3, held in part on the analysis in People v. Tuck (2012) 204Cal.App.4th 724, and People v. Hofsheier (2006) 37 Cal.4th 1185, thestatutory scheme under which persons convicted of violating section 288.7(prohibits sexual intercourse, sodomy, oral copulation, or sexualpenetration with a child 10 years or younger), may obtain certificates ofrehabilitation under section 4852.01, and relief from the sex offenderregistration requirement under section 290.5, while persons convicted ofviolating section 288, subdivision (a) (lewd or lascivious acts with a childunder 14 years), may not, is unconstitutional. There is no rational basis forthe unequal treatment of these two similarly situated groups of sexoffenders. Appropriate remedy for the equal protection violation resultingfrom the disparate treatment of section 288.7 and section 288, subdivision

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(a) offenders is to make the latter group of offenders eligible forcertificates of rehabilitation and relief from the registration requirement, asthe legislature would likely prefer that remedy to the alternatives ofmaking all sex offenders eligible for relief or making section 288.7offenders ineligible.

24. People v. Hamdon (2014) 225 Cal.App.4th 1065, the First AppellateDistrict, Division 5 held that, essentially, pursuant to In re Alva (2004) 33Cal.4th 254, wherein the California Supreme Court held that requiring aperson convicted of a misdemeanor, to register as a sex offender for life, isnot a punitive measure (see People v. Castellanos (1999) 21 Cal.4th 785),subject to either state or federal proscriptions against cruel and/or unusualpunishment. Setting aside of a conviction pursuant to section 1203.4a,which permits the trial court to set aside "penalties and disabilities"resulting from a misdemeanor conviction once the defendant hascompleted a sentence, does not relieve the responsibility to register as asex offender as it is not a penalty.

25. People v. Tirey (2014) 225 Cal.App.4th 1150, the Fourth AppellateDistrict, Division 3 held, on rehearing, that section 4851.01, barringpersons convicted of crimes under section. 288, subdivision (a) frompetitioning for a certificate of rehabilitation, while allowing other similarlysituated persons, (see In re Eric J. (1979) 25 Cal.3d 522, 530; Cooley v.Superior Court (2002) 29 Cal.4th 288, 253), who have committed moreserious crimes under section 288.7, sexual intercourse or sodomy with achild 10 years of age or under, to file such a petition violates equalprotection under the state and federal constitutions. (People v. Tuck (2012)204 Cal.App.4th 724, 741 concurring opinion.)

26. People v. Deluca (2014) 228 Cal.App.4th 1263, the Second AppellateDistrict, Division 5 held the trial court did not err in sentencing thedefendant for a violation of his need to register as a sex offender when his"residence" was an Emergency winter shelter frequented by transientregistered sex offender within the meaning of section 290.011, subdivision(b), requiring the defendant to re-register using the shelter’s address withinfive days of his first night at the shelter.

27. Johnson v. Department of Justice (2015) 60 Cal.4th 871, the CaliforniaSupreme Court overruled in prior decision in People v. Hofsheier (2006)37 Cal.4th 1185, wherein they had said that every defendant 21 years ofage or older convicted of voluntary oral copulation with a person betweenthe ages of 16 and 18 register as a sex offender violates constitutional rightto equal protection, since defendant 21 or older who has voluntary sexualintercourse with a person between 16 and 18 is not subject to themandatory registration requirement and there is no rational basis for thedistinction. Now this court over a dissent by Justice Werdeger, in spite of

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stare decisis, holds that the Sex Offender Registration Act provisions thatallow for discretionary sex offender registration for those convicted ofunlawful sexual intercourse with a minor, while imposing mandatoryregistration for those convicted of crimes involving other types of sexualactivity with a minor, do not violate constitutional guarantees of equalprotection. Because intercourse is unique in its potential to result inpregnancy and parenthood, legislative concerns regarding teen pregnancy,and the support of children conceived as a result of unlawful sexualintercourse provide more than just a plausible basis for allowing judicialdiscretion in assessing whether perpetrators of that crime should berequired to register while mandating registration for perpetrators of othernonforcible sex crimes.

28. In re Taylor (2015) 60 Cal.4th 1019, the California Supreme Court heldthat sex offender residency restrictions set forth in Proposition 83, alsoknown as Jessica’s Law, are unconstitutional as applied across the board toregistered sex offenders on parole in San Diego County. Parolees made asufficient showing that blanket enforcement of the residency restrictionsseverely restricted their ability to find housing in compliance with thestatute, greatly increased the incidence of homelessness among them, andhindered their access to medical treatment, drug and alcohol dependencyservices, psychological counseling and other rehabilitative social servicesavailable to all parolees, while further hampering the efforts of paroleauthorities and law enforcement officials to monitor, supervise, andrehabilitate them in the interests of public safety. California Department ofCorrections and Rehabilitation has statutory authority, independent ofProposition 83, to impose residency restrictions on parolees who are sexoffenders as long as they are based on, and supported by, the particularizedcircumstances of each individual parolee.

29. People v. Toloy (2015) 239 Cal.App.4th 1116, the Sixth Appellate Districtheld that section 290.017 requires notification to the defendant of theobligation to re-register within five days following release after beingincarcerated for a term of 30 days or longer. The requirement is directoryrather than mandatory (see Morris v. County of Marin (1977) 18 Cal.3d901, 908; see also People v. McGee (1977) 19 Cal.3d 948, 958), andtherefore did not provide a defense to an offender who had been previouslyinformed of the requirement, but failed to re-register after serving such aterm and not being renotified upon his release.

B. SEX REGISTRATION FOR A MISDEMEANOR

1. People v. Noriega (2004) 124 Cal.App.4th 1334, the Fourth AppellateDistrict, Division 3, based on its interpretation of In re Alva (2004) 33Cal.4th 254, held that it was required to impose on the defendant sex

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registration for a violation of misdemeanor indecent exposure, and that itis not cruel and unusual punishment, since registration is not punishment.

22. RIGHT TO ALLOCUTION

A. DEFENDANT’S RIGHT

1. United States v. Gunning (2005) 401 F.3d 1145, the Ninth Circuit Court ofAppeal held that a defendant’s right to allocution at sentencing applies toresentencing following an appeal. There is no requirement that such rightbe spelled out in the remand, and where allocution is denied, the error isprejudicial if the court had any discretion to impose a lesser sentence.

2. People v. Ornelas (2005) 134 Cal.App.4th 485, the Second AppellateDistrict, Division 6 held that the court’s failure to advise the defendant ofhis right to allocution (see In re Shannon B. (1994) 22 Cal.App.4th 1235,1238; § 1200), was harmless error where the defendant was represented bycounsel, who objected at time of sentencing to certain aspects of thesentence, but did not object that the defendant should be given theopportunity to address the court. Statements of the defendant and counsel,relative to sentencing, were included in the probation report that wasconsidered by the court. Additionally, the Court of Appeal found that thedefendant could not show prejudice.

3. People v. Evans (2008) 44 Cal.4th 590, the California Supreme Court heldthat section 1200 (the right to allocution), gives a defendant the right tomake a personal statement in mitigation of punishment, but now with thelimitation that he be under oath and subject to cross-examination by theprosecutor.

4. People v. Nitschmann (2010) 182 Cal.App.4th 705, the Second AppellateDistrict, Division 6 held that where the defendant demonstrated hisunderstanding of a negotiated disposition and expressed a desire forimmediate sentence, he forfeited his right to testify in mitigation ofpunishment, and impliedly waived his right to allocution within themeaning of section 1204 for sentencing. (See People v. Evans (2008) 44Cal.4th 590, 600.) Before accepting a negotiated change of plea, a trialcourt need generally must determine that a factual basis for the plea (seePeople v. French (2008) 43 Cal.4th 36, 50; § 1192.5); however, as here,the parties can stipulate to the factual basis for the plea. (People v. Holmes(2004) 32 Cal.4th 432, 436.

B. VICTIM TESTIFYING AT SENTENCING HEARING

1. People v. Randall REVIEW DISMISSED; FORMERLY AT : (2007) 155Cal.App.4th 228, the Third Appellate District held that the victim has a

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right to speak at any sentencing proceeding, not just the originalproceeding, and that includes sentencing at a probation violation hearing. (See § 1191.1; People v. Zikorus (1983) 150 Cal.App.3d 324, 330-332.) This case presents the following issues: (1) Does Penal Code section1191.1 grant the victim of a crime the right to be heard by a trial court atall sentencing hearings? (2) If not, what is the scope of the trial court’sdiscretion to hear from the victim at sentencing?

2. People v. Superior Court (Smith) (S158084) nonpublished opinion. Thiscase presents the following issues: (1) Does Penal Code section 1191.1grant the victim of a crime the right to be heard by a trial court at allsentencing hearings? (2) If so, was it harmless error here for the trial courtnot to allow the victim, who spoke at the original sentencing hearing, tospeak at the time of resentencing after the trial court recalled the originalsentence?

23. SENTENCE ON GREATER, DISMISS THE LESSER

1. People v. Chan (2005) 128 Cal.App.4th 408, the Second AppellateDistrict, Division 5 held that the defendant cannot be convicted ofviolating section 288, subd. (b)(1), lewd conduct by force, and section 288,subd. (a), lewd conduct without force, where the same conduct make upboth offenses, as the section 288, subd. (a) is a lesser included offense tothe section 288, subd. (b)(1) offense. (See People v. Ortega (1998) 19Cal.4th 686, 692, 693 [cannot be convicted of the lesser included offenseand the greater offense].)

2. People v. Ceja (2010) 49 Cal.4th 1, the California Supreme Court held thatwhere the trial court failed to instruct the jury pursuant to section 296,subdivision (a) that a defendant may not be convicted of stealing andreceiving the same property (see People v. Allen (1999) 21 Cal.4th 846),and the jury convicted the defendant of both charges, the court of appealerred in reasoning that the greater felony receiving offense tookprecedence over the lesser misdemeanor theft offense because a theftconviction has traditionally operated as a bar to a receiving conviction, andthe legislature gave no indication it meant to change the establishedpractice when it enacted the statute.

24. MULTIPLE OR SINGLE CONVICTION BASED ON THE SAME ORDIFFERENT THEORY OF THE CONVICTION

1. People v. Garcia (2003) 107 Cal.App.4th 1159, the Second AppellateDistrict, Division 6, held that the prosecutor was not free to charge threecounts of evading even though the defendant led three police vehicles on alengthy high-speed chase; he could only be found guilty of one count ofevading. (See Wilkoff v. Superior Court (1985) 38 Cal.3d 345, 349.)

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2. People v. Williams (2004) 120 Cal.App.4th 209, the Fourth AppellateDistrict, Division 2 held, contrary to the well reasoned opinion in Peoplev. Garcia (2003) 107 Cal.App.4th 1159, wherein the Court of Appeal heldthat a defendant could only be found guilty of one count of evading, andnot for as many counts as number of police officers giving chase, thisCourt of Appeal found that a violation of section 2800.2, is a crime ofviolence for purposes of the multiple-victim exception to section 654, andtherefore, a defendant who violated section 2800.2 while fleeing from thescene of the robbery was properly convicted of both crimes.

3. People v. Davey (2004) 122 Cal.App.4th 1548, the First Appellate District,Division 2 held that a defendant who commits a single act of indecentexposure within the meaning of section 314.1, and the act is witnessed by2 minors simultaneously, he can only be sentenced on one count pursuantto section 654. (Cf. People v. Hall (2000) 83 Cal.App.4th 1084,1088-1090 [can punish multiple times for a single episode of violentconduct].) The multiple victim exception to section 654 does not apply asthe act is not one of violence, nor is there a separate criminal objective tothe single act.

4. In re Carleisha P. (2006) 144 Cal.App.4th 912, the Second appellateDistrict, Division 3 held that section 12101, subdivision (b) (possession oflive ammunition by a minor), is violated only one time by the minor whohas simultaneous possession of different types of ammunition. A singlecrime cannot be fragmented into more than one offense. (People v. Rouser(1997) 59 Cal.App.4th 1065, 1073.)

5. People v. Muhammad (2007) 157 Cal.App.4th 484, 494, the FirstAppellate District, Division 5 held that, a defendant can only be convictedof one count of section 646.9, as other subdivisions in the section aremerely penalty provisions for stalking. Subdivisions (b), (c)(1), and (c)(2)are penalty provisions triggered when the offense of stalking as defined insubdivision (a) is committed by a person with a history of misconduct. Therefore, the Court of Appeal imposed sentence on section 646.9,subdivision (c)(2) and dismissed the other three counts of stalking. (SeePeople v. Ryan (2006) 138 Cal.App.4th 360, 371.)

6. People v. Martinez (2008) 161 Cal.App.4th 754, the Fourth AppellateDistrict, Division 2, held that where the defendant who unlawfully inducesthe victim to sign a single document in more than one place, he may onlybe convicted of one count of forgery.

7. People v. Morelos (2008) 168 Cal.App.4th 758, the Fifth AppellateDistrict held that even though various goods were stolen from differentsources, different victims, but were received on a single occasion, therecan only be one offense and one guilty verdict of receiving stolen property.

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(People v. Smith (1945) 26 Cal.2d 854, 859; see also People v. Lyons(1958) 50 Cal.2d 245, 275.) However, absent any evidence that thedefendants received stolen property on a single occasion, the jury couldreasonably infer that foods were not received at one time or in onetransaction, and conviction and sentencing on each count was proper. (SeePeople v. Bullwinkle (1980) 105 Cal.App.3d 82, 92.) Additionally, thedefendants’ possession of multiple, identical checks constituted a singlecount of forgery. Where every forged drivers’ license bore personalinformation of one victim, multiple counts for possession of forgeddriver’s licenses must be stricken. Where the jury could reasonably inferthat defendants not only altered genuine checks but also generatedfictitious checks during an ongoing forgery operation, multiple convictionsfor possession of altered checks were proper. Two forgery convictionscannot arise from one check. (See People v. Bowie (1977) 72 Cal.App.3d143; People v. Carter (1977) 75 Cal.App.3d 865.) Where there is someevidence which shows only a single crime, but leaves room fordisagreement as to exactly how theat crime was committed or what thedefendant’s precise role was, the jury need not unanimously agree on the“theory” of the defendant’s guilt. (People v. Russo (2001) 25 Cal.4th1124, 1132.)

8. People v. Manfredi (2008) 169 Cal.App.4th 622, the Fifth AppellateDistrict held that simultaneous possession of multiple child pornographymaterials at one location was chargeable as one criminal offense undersection 311.11.

9. People v. Kenefick (2009) 170 Cal.App.4th 114, the Third AppellateDistrict held that where the defendant forged four individuals’ signatureson two documents, he could only be convicted of two counts of forgeryunder section 470, subdivision (a). (See People v. Ryan (2006) 138Cal.App.4th 360, 366-367.)

10. People v. Smith (2010) 191 Cal.App.4th 199, the Third Appellate Districtheld that where the evidence indicated only one act of sexual intercoursewith victim, the defendant's convictions for both the rape of an intoxicatedwoman and rape of an unconscious woman (Pen. Code § 261, subd.(a)(3)), could not stand.

11. People v. Mason (2014) 232 Cal.App.4th 335, the Fourth District,Division 1 held that the evidence did not support multiple convictions forpossession of firearm by convicted felon (§ 29800, formerly § 12021),based on the defendant’s possession of the same gun on different days. There was but one continuing possession of the gun even though thedefendant used it in different crimes and different places. Possession of afirearm by a felon is a continuing offense. (Wright v. Superior Court(1997) 15 Cal.4th 521, 525, fn. 1; People v. Warren (1940) 16 Cal.2d 103,

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112 ;see also People v. Keehley (1987) 193 Cal.App.3d 1381, 1385.) Therefore, the defendant was only liable for one offense under section12021.

25. PROTECTIVE ORDER AGAINST THE DEFENDANT

1. People v. Ponce (2009) 173 Cal.App.4th 378, the Second AppellateDistrict, Division 6 held that the trial court lacked statutory authority toissue a three-year protective order pursuant to section 136.2 againstdefendant at sentencing. (See People v. Selga (2008) 162 Cal.App.4th113, 118). Additionally, the trial court also lacked inherent authority toissue such an order absent any evidence that defendant had threatened, orhad tried to dissuade, any witness or had tried to unlawfully interfere withcriminal proceedings. (Bitter v. U.S. (1967) 389 U.S. 15, 19 [19 L.Ed.2d15, 88 S.Ct. 6] [even where a court has inherent authority over an areawhere the Legislature has not acted, this does not authorize issuing ordersagainst defendants by fiat or without any valid showing to justify the needfor the order].)

2. People v. Robertson (2012) 208 Cal.App.4th 965, the Fifth AppellateDistrict held that an order barring contact between defendant and victimwas not authorized by any statute, and was not supported by a factual basiswhere defendant was sentenced to prison. (See People v. Stone (2004) 123Cal.App.4th 153, 384 [a court cannot issue a protective order against adefendant who has been sentenced to state prison unless he has beenconvicted of domestic violence]; People v. Ponce (2009) 173 Cal.App.4th378, 383-383.)

26. A DEFENDANT CANNOT BE SENTENCED TO A PENAL CODE SECTIONTHAT DOES NOT STATE A CRIME, BUT IS ONLY A PENALTY PROVISION

1. People v. Vasilyan (2009) 174 Cal.App.4th 443, the Second AppellateDistrict, Division 8 held that the defendant’s conviction for violatingsection 422.7 was void because that section states the penalty for certaincrimes, but does not itself define any crime. (See People v. Wallace(2003) 109 Cal.App.4th 1699.) Because the conviction was void, thedefendant who did not appeal, was entitled to attack it collaterally, andtrial court was required to set aside the conviction on defendant’s motion.

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27. EXPERT WITNESS AT SENTENCING HEARING EVIDENCE CODE SECTION730

1. People v. Stuckey (2009) 175 Cal.App.4th 898, the Third AppellateDistrict held that Evidence Code section 730 does not authorize theappointment of experts after trial in connection with sentencingproceedings, nor does the federal or state constitution entitle an indigentcriminal defendant to improve his chances of a favorable sentencingchoice by having experts echo the arguments of defense counsel. Although appointment of experts may be required when a defendant showsthat they are necessary to formulate an affirmative defense to criminalcharges or to rebut an expert witness retained by the prosecution to renderan expert opinion at sentencing, a defendant may not require the trial courtto appoint experts at public expense merely to supplement the argumentsof counsel at sentencing.

28. AGGRAGATE SENTENCE IMPOSING BOTH INDETERMINATE ANDDETERMINATE TERMS

1. People v. Neely (2009) 176 Cal.App.4th 787, the Second AppellateDistrict, Division 6 held that the trial court erred in imposing sentence forthe defendant's attempted robbery convictions based on the determinationthat three years was the middle term rather than two years pursuant tosection 213, subdivision (b). The trial court also erred in failing tosentence the defendant for crimes punishable by imposition of determinateterms separately from the crimes punishable by imposition of anindeterminate term and then aggregating those sentences together to forman aggregate term of imprisonment. (See People v. Ottombrino (1982)127 Cal.App.3d 574, 588 [sentencing is conceptualized into separateboxes, determinate and indeterminate].) As a defendant cannot receiveseparate punishment for multiple offenses arising out of a single,indivisible course of conduct pursuant to section 654, the defendant'ssentence for attempted robbery of the murder victim had to be stayed sincethe murder was committed as part of the attempted robbery. A defendantmay be subject to an aggregate sentence that is greater than initiallyimposed when a case is remanded for resentencing because the originalsentence was unlawful or unauthorized.

2. People v. Sanders OPINION VACATED; formerly at: (2010) 182 Cal.App.4th 1626, the Second Appellate District, Division 8 held that thetrial court did not err in failing to grant a motion for a mistrial, in a murderprosecution, as the defendant's Sixth Amendment rights were not violatedby trial court's decision not to strike all of witness's testimony or grant amistrial, after the witness refused to disclose the identity of the people whohe said approached him with information about unknown shooter becausethose questions which the witness refused to answer concerned a collateral

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matter and the witness was extensively examined on all subjects that werematerial. (Fost v. Superior Court (2000) 80 Cal.App.4th 724, 736[striking a witnesses testimony is a drastic solution, only considered afterless severe remedies are considered].) One of the less severe remedies isallowing the jury to evaluate the witnesses credibility in failing to answer. (See People v. Seminoff (2008) 159 Cal.App.4th 518, 526.) As it pertainedto the sentence, given the fact that the first count was an indeterminatecount (a life sentence) when the 25 to life gun use enhancement is takeninto account under section 12022.53, subdivision (d), and therefore not theprincipal count under the Determinate Sentencing Act, the sentence oncount two was not a subordinate sentence and trial court did not err inimposing a full middle-term sentence for count two. (People v. Mason(2002) 96 Cal.App.4th 1, 15.

29. PENAL CODE SECTION 1170.9 UNITED STATES MILITARY PTSD

1. People v. Ferguson (2011) 194 Cal.App.4th 1070, the Fourth AppellateDistrict, Division 3, held that although trial court erred in findingdefendant was statutorily ineligible for probation for the second degreeimplied malice murder conviction, using an incorrect interpretation ofsection 12022.53, subdivision (g), the record clearly indicated that the trialcourt would not have granted probation, and placed the defendant onsection 1170.9 probation, which is applicable to a defendant with PTSDfollowing his military service when the 6 requirements of that section havebeen met, based on the severity of defendant's crime and the input receivedfrom victims' family, friends and associates.

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30. FEDERAL AND STATE PROSECUTIONS UNDER THE DOUBLE JEOPARDYCLAUSE AND PENAL CODE SECTIONS 656 AND 793

1. People v. Davis (2011) 202 Cal.App.4th 429, the Sixth Appellate Districtheld that the defendant, who was previously convicted of an offense thatcaused him to register as a sex offender, changed residences first withinCalifornia and later out of state without registering any of his newaddresses. The Court of Appeal found that he could be prosecuted in statecourt for failing to register his new California address (§ 290, subd.(f)(1)(A), now § 290.013), before he moved out of state, after he wasprosecuted in federal court for failing to register as a sex offender aftertraveling in interstate commerce, without violating double jeopardyprinciples under sections 656 and 793 or the 5th Amendment DoubleJeopardy Clause. The state and federal prosecutions punished separateacts of failing to register, and the conduct at issue in the state court actionoccurred before defendant traveled in interstate commerce (Carr v. UnitedStates (2010) 560 U.S. [176 L.Ed.2d 1152, 130 S.Ct. 2229] [failing toregister under the federal statute is based on conduct that occurred after thedefendant traveled interstate]), and before the effective date of the federalstatute.

31. PROPOSITION 36 THREE STRIKES MODIFICATION

1. People v. Yearwood (2013) 213 Cal.App.4th 161, the Fifth AppellateDistrict held that Proposition 36, which amended the Three-Strikes Lawdoes not apply retroactively within the meaning of In re Estrada (1965) 63Cal.2d 740, 744-746, but operates prospectively only. Accordingly, properremedy for a defendant scheduled to an indeterminate life sentence for anoffense that would not qualify as a third strike under the amended law is tofile a petition for a recall of his sentence in compliance with section1170.126, as this section "functionally" operates as a "savings clause."

2. People v. Superior Court (Kaulick) (2013) 215 Cal.App.4th 1279, theSecond Appellate District, Division 3 held that as it pertains to a petition,filed by the defendant under section 1170.126, the prosecution has (1) aright to notice and an opportunity to be heard; (2) both the defendant andthe victim of the crime have the right to be heard at any hearing on apetition for resentencing under the Act; (3) the resentencing should takeplace before the original sentencing judge, if available, although this iswaivable, and (4) the prosecution has the burden of proof by apreponderance of the evidence on the issue of dangerousness. Finally,there is no Equal Protection violation by a finding of dangerousness onless than a standard of beyond a reasonable doubt.

3. People v. Conley REVIEW GRANTED; FORMERLY AT: (2013) 216Cal.App.4th 1482, the Third Appellate District, after rehearing, held that

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where the defendant sought in the appeal to vacate his sentence due to thepassage of Proposition 36, this past November 7, 2012, are not entitled tofull retroactive application of that measure, even if their convictions arenot yet final. The defendant sought an application of In re Estrada (1965)63 Cal.2d 740, 744-746, which this court rejected. The Court of Appealfound that Estrada does not apply since the language of Proposition 36establishes a procedure to put those provisions into place. (See §1170.126, subd. (b).) Those persons who have been sentenced recentlycan recall their case within 120 days pursuant to section 1170, subdivision(d). Those who cannot meet that time limit can petition for recall ofsentence pursuant to section 1170.126, subdivision (b). The court alsorejected an equal protection claim.

4. People v. Lewis REVIEW GRANTED; FORMERLY AT: (2013) 216Cal.App.4th 468, the Fourth Appellate District, Division 2 held thatProposition 36, the Three Strikes Reform Act of 2012, is fully applicableto a defendant whose conviction was not yet final on appeal when thereform act was adopted and essentially follows the dictates of In reEstrada (1965) 63 Cal.2d 740, and rejects the analysis from People v.Yearwood (2013) 213 Cal.App.4th 161, and People v. Conley (2013) 216Cal.App.4th 1482. Therefore, the Court of Appeal concluded that thedefendant must be sentenced under section 667, subdivision (e)(2)(C).

5. People v. Hurtado REVIEW DISMISSED: (2013) 216 Cal.App.4th 941,the Second Appellate District, Division 1 held that when the superior courtdenies a request to recall a sentence pursuant to section 1170.126, theThree Strikes Reform Act, the defendant has a right to appeal that ruling asa postjudgment order affecting the substantial right of the party. TheCourt of Appeal relied on section 1237, subdivision (b) and People v.Totari (2002) 28 Cal.4th 876 to establish that the challenge is by way ofappeal and not by writ. Here, the denial of the request to recall thesentence was upheld, since the defendant's third strike was a seriousfelony, a first degree burglary, and he had two qualifying prior seriousfelony offenses, the trial court properly found that he was excluded frombeing resentenced under the Three Strikes Reform Act.

6. People v. Leggett REVIEW DISMISSED: (2013) 219 Cal.App.4th 846,the Third Appellate District held that the petitioner did not have a statutoryright to an appeal, within the meaning of section 1170.126 (Proposition36), from a denial of his request to modify his Three Strike sentence whenthe third strike was an attempted second-degree robbery which is a seriousfelony. An order denying relief under section 1170.126 is not appealableif it denies a petition that was erroneously filed by an individual whoseindeterminate three-strikes sentence is based on a conviction for anyserious or violent felony. In all other instances, an order denying a petitionfor recall of sentence is appealable, whether based on a determination of

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ineligibility or an exercise of the trial court’s discretion to denyresentencing.

7. People v. Lester (2013) REVIEW GRANTED; FORMERLY AT: 220Cal.App.4th 291, the majority of the Fourth Appellate District, Division 2held, over the dissent by Justice Hollenhorst, that People v. Estrada (1965)63 Cal.2d 740 does not apply to Proposition 36, reform of the ThreeStrikes Law (§ 1170.126), where a previously sentenced defendants whoseconvictions were not yet final when the law was enacted, except as setforth in the law’s limited retroactivity provision.

8. People v. Wortham REVIEW DISMISSED: (2013) 220 Cal.App.4th 1018,the First Appellate District, Division 4 held that an order denying petitionto recall a sentence under Proposition 36 (Three-Strikes reform act of2012), is appealable as it can effect the substantial rights of a defendant. However, in this case, since a first-degree burglary, which was thedefendant's third strike, is a serious or violent felony, his sentence of 25-Lis cannot be recalled under Proposition 36.

9. People v. Contreras (REVIEW GRANTED PENDING CONLEY;FORMERLY AT: (2013) 221 Cal.App.4th 558, the Fourth AppellateDistrict, Division 3 held that The Three Strikes Reform Act of 2012,(Proposition 36) applies retroactively to all non-final judgments, within theinterpretation of People v. Estrada (1965) 63 Cal.2d 740, so that adefendant who was sentenced approximately one month before theamendment of the criminal statute but before final judgment, is able tohave the benefit of the new more lenient law and to be resentenced as atwo-strike offender. The Court of Appeal acknowledges that there is asplit of authority on this issue; however concluded that there is noindication that the electorate intended the Reform Act to solely beprospective, and as such, retroactive applicability in this case isappropriate.

10. People v. White (2014) 223 Cal.App.4th 512, the Fourth AppellateDistrict, Division 1 held that the defendant was properly excluded from theresentencing provision of Proposition 36, section 1170.126 as his thirdstrike conviction was for of possession of a firearm by a felon undersection 12021, subdivision (a), as he was considered to be "armed with afirearm during the commission of that possession offense". The trial courtmay deny section 1170.126 resentencing relief under the "armed-with-a-firearm exclusion," even if the accusation for the crime of possession of afirearm by a felon does not allege that he was armed with a firearm duringthe offense. The defendant in this case had physical possession of thefirearm. The exclusion would also apply if he had dominion and controlor constructive possession of the firearm. Additionally, the prosecutiondid not have to pled and prove that he was armed with the firearm.

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11. People v. Osuna (2014) 225 Cal.App.4th 1020, the Fifth Appellate Districtheld that the trial court did not err in failing to resentence the defendantunder section 1170.126, where the facts show that in his qualifying strike,the defendant was actually holding a handgun when he emerged from acar, was "armed with a firearm" within the meaning of Proposition 36, andtherefore, his conviction for then section 12021 (possession of a firearm bya convicted felon), was a serious or violent felony for which resentencingis not available under the act. There is nothing that requires the illegal gunpossession be "tethered" to another felony for resentencing to beprecluded.

12. People v. Blakely (2014) 225 Cal.App.4th 1042, the Fifth AppellateDistrict held that where a defendant is convicted of possession of firearmby convicted felon, (former § 12021,subd. (a)), who stipulated to two prior"strikes," mere possession of the firearm did not establish that thedefendant was armed with the firearm so as to disqualify him fromresentencing under the Three Strikes Reform Act of 2012, section1170.126. To be armed, the gun has to be available for use, eitheroffensively or defensively, and under his dominion and control at the timeof the offense. (See People v. Bland (1995) 10 Cal.4th 991, 997.) However, the trial court was permitted to consider admissible portions ofthe record of conviction in determining whether the "dangerousness"provision in the act, and this conviction rendered him ineligible forresentencing under the act. Disqualifying factors need not be pled andproven to the trier of fact beyond a reasonable doubt.

13. People v. Haynes REVIEW GRANTED; FORMERLY AT: (2014) 225Cal.App.4th 997, the Fifth Appellate District held that a defendant's denialof his motion for resentencing under Three Strikes Reform Act, pursuantto section 1170.126, based on the determination that he was ineligible, isappealable. The defendant was not entitled to a remand for resentencingunder the act since he was ineligible due to his conviction for Health andSafety Code section 12022, subdivision (c), where he would have beeneligible had he merely been convicted of being an ex-felon in possessionunder section 29800, subdivision (a) (former § 12021).

14. People v. Superior Court (Cervantes) (2014) 225 Cal.App.4th 1007, theFifth Appellate District held, consistent with its other opinions recentlypublished, that an inmate serving an indeterminate life term under theThree Strikes Law may be found to have been "armed with a firearm" inthe commission of his or her current offense, a violation of Health andSafety Code section 12022, subdivision (c) so as to be disqualified fromresentencing under the Three Strikes Reform Act, section 1170.126 even ifhe or she did not carry the firearm on his or her person. The defendant wasnot entitled to a remand for resentencing under the act since he was

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ineligible due to his conviction for Health and Safety Code section 12022,subdivision (c).

15. People v. Superior Court (Martinez) (2014) 225 Cal.App.4th 979, theFifth Appellate District held that the prosecution is entitled to petition theCourt of Appeal to review the trial court's eligibility decision, (see Peoplev. Superior Court (Kaulick) (2013) 215 Cal.App.4th 1279, 1294-1295,fn.14), that an inmate serving an indeterminate life term under the ThreeStrikes Law may be found to have been "armed with a firearm" in thecommission of his or her current offense, a violation of Health and SafetyCode section 11370.1 so as to be disqualified from resentencing under theThree Strikes Reform Act, section 1170.126 even if he or she did not carrythe firearm on his or her person.

16. People v. Anderson REHEARING GRANTED; FORMERLY AT: (2014)225 Cal.App.4th 1368, the Third Appellate District held that when counselfiles a no-issue brief and asks the court for an independent review pursuantto People v. Wende (1979) 25 Cal. 3d 436, said procedure does not applyto an appeal from the denial of resentencing under the Three StrikesReform Act of 2012 (§ 1170.126). This was not defendant’s first appealas of right from a criminal conviction, and there is no independent dueprocess right to Wende review in this particular context. A defendant has astatutory right to an appeal, but not a constitutional right. (In re Sade C.(1996) 13 Cal.4th 952, 966.) Here the defendant sought to have hissentence reduced pursuant to section 1170.126, but he was precluded sincehis prior convictions involved rape and oral copulation, which precludehim from resentencing. (See § 1170.126, subd. (e)(3).)

17. Braziel v. Superior Court REVIEW GRANTED: FORMERLY AT:(2014) 225 Cal.App.4th 933, the Second Appellate District, Division 7held that the trial court did not err in denying petitioner's motion pursuantto section 1170.126, to recall his indeterminate sentence under the section667, subdivision (e)(2). In determining whether a defendant is eligible forrecall of his three strikes sentence under Proposition 36, section 1170.126,subdivision (e)(1), the court must consider whether "any" of the crimeswere serious and/or violent at the time of commission "or" under currentlaw. Defendant is not eligible for recall of a three strikes sentence on anindividual count that is not a serious and/or violent felony, whereineligible for recall of three strikes sentences on other counts. (See In reMartinez (2014) 223 Cal.App.4th 610, 618-620.)

18. People v. Johnson (2014) REVIEW GRANTED; FORMERLY AT: 226Cal.App.4th 620, the Second Appellate District, Division 3 held that thetrial court did not err in denying petitioner's motion to recall his sentenceunder section 1170.126, the Three Strikes Reform Act, given the fact thatthe crime of dissuading a witness was a serious felony at the time the Act

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was passed, and not at the time the act was committed. (See Braziel v.Superior Court (2014) 225 Cal.App.4th 933, 946.) Here, petitionercommitted his act in 1998, and dissuading a witness was not added tosection 1192.7, subdivision (c) until after 1998.

19. People v. Dunckhurst (2014) REVIEW GRANTED; FORMERLY AT:226 Cal.App.4th 1034, the Third Appellate District held that under thelimited retroactivity provision of the Three Strikes Reform Act, section1170.126, the defendant’s commission, in 2010, of assault upon an inmatewith a deadly weapon or force likely to cause great bodily injury while inprison, made him ineligible for recall of his earlier three-strikes sentence. The defendant argued that that offense, which came after the 2005, non-serious, non-violent offense for vehicle theft is not a prior and candisqualify him for resentencing under section 1170.126. This Court ofAppeal found that the phrase "prior conviction," as used in the act, meansany conviction that occurs before the court decides whether the inmate iseligible for resentencing. There are two parts to the Act: the first part is"prospective" only, reducing he sentence to be imposed in future threestrike cases where the third strike is not a serious or violent felony; thesecond part is "retrospective", providing relief to third strike defendantsalready serving a three-strike sentence where the third strike was notserious or violent; the third requirement is that the inmate has no priorconvictions for any certain specified felonies.

20. People v. Manning (2014) 226 Cal.App.4th 1133, the Second AppellateDistrict, Division 3 held that the trial court erred in denying appellant'spetition under section 1170.126, since there is nothing on the face of theprior conviction of rape of an unconscious person, in violation of section261.4, subdivision(a), will disqualify him from being resentenced underthe Three Strikes Reform Act since it was not shown that the acts werecommitted by force or violence or that the victim of those offenses wasunder 14 years of age. The defendant's sentence will not be modified onlyif the documents essential to the conviction establish that the crime was"sexually violent" as defined by the act, or that the victim was under 14years of age and at least 10 years younger than defendant. Appellantadmitted that he was convicted of two prior convictions for rape of anunconscious person under section 261.4, subdivision (a)(4), but thosecrimes are not enumerated excludable offenses nor violent sex offenseswithin the meaning of section 1170.126. Where appellant's priorconvictions are not disqualifying on the face of the petition forresentencing, the prosecution must be given an opportunity to demonstrateto the trial court that at least one of the prior offenses involveddisqualifying conduct, and in determining whether that is the case, the trialcourt must specify the records it relied on and its reasons for concludingthat the defendant’s prior offenses were or were not disqualifying.

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21. People v. Flores (2014) 227 Cal.App.4th 1070, the Second AppellateDistrict, Division 6 held that the phrase within Proposition 36, codified insection 1170.126, subdivision (f), that defendant not "pose anunreasonable risk of danger to public safety" in order to qualify forretroactive application of the Three Strikes Reform Act is not, on its face,unconstitutionally vague. (See People v. Mirmirani (1981) 30 Cal.3d 375,382 [pertaining to vagueness of a statute]; see also People v. Sipe (1995)36 Cal.App.4th 468, 480 [vagueness applies to sentencing statutes].) TheProsecution, in seeking to prove that the petitioner is an "unreasonable riskof danger to public safety", need only prove "dangerousness" by apreponderance of the evidence. (People v. Superior Court (Kaulick) (2013)215 Cal.App.4th 1279, 1301-1306.) The trial court was not required toremove defendant’s shackles during his testimony at hearing on petitionfor resentencing, where there was no evidence that the shackling impairedthe defendant or prejudiced his right to testify, and the defendant in facttestified that the shackles were no more than a distraction.(See People v.Anderson (2001)25 Cal.4th 543, 596 [the shackles must impair orprejudice the defendant]; People v. Jackson (2014) 58 Cal.4th 724, 741[restraints can impair a defendant's ability to testify effectively.]

22. People v. Jernigan (2014) 227 Cal.App.4th 1198, the Second AppellateDistrict, Division 5 held that the trial court erred in finding that thedefendant was disqualified from resentencing under section 1170.126,subdivision (f) due to his prior offenses for attempted oral copulation. Theoffense of attempted oral copulation is not within the crimes listed orwithin the meaning of Welfare and Institutions Code section 6600,subdivision (b), which precludes sexually violent offenses fromresentencing. The matter is remanded to the superior court for the court todetermine if the defendant poses a unreasonably high risk of danger to thepublic. (People v. Superior Court (Kaulick) 215 Cal.App.4th 1279, 1293-1294.)

23. People v. Elder (2014) 227 Cal.App.4th 1308, the Third AppellateDistrict held that where the defendant had a prior conviction for priorsection 12021 (now § 29800) (possession of a gun as a convicted felon),was "armed with a firearm" and thus ineligible for resentencing pursuantto section 1170.126, subdivision (e)(2) for the offense that falls withinsection 667, subdivision (e)(2)(C)(iii).

24. People v. Bradford (2014) 227 Cal.App.4th 1322, the Third AppellateDistrict held that In determining whether a defendant is eligible forresentencing under Proposition 36, section 1170.126, the trial court mustreview evidence obtained solely from the record of his "third strike"conviction, or "current" conviction. (People v. Woodell (1998) 17 Cal.4th448 [defining record of conviction]; see also People v. Guerrero (1988) 44Cal.3d 343 [pertaining to the record of conviction].) The trial court erred

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when it ruled petitioner ineligible for resentencing under section 1170.126,subdivision (f). The trial court erred in finding that the wire cutters, whichwere found on appellant was a dangerous or deadly weapon, and thereforethey did not fall into the category of section 667, subdivision (e)(2)(C)(iii),which would make petitioner ineligible for resentencing. When the crimeis assault with a deadly weapon, the determination of whether an item is adeadly weapon that was not designed for use as a weapon has bee held todepend on the nature of the item as well as the manner in which it is used.(See People v. Aguilar (1997) 16 Cal.4th 1023, 1029.) In appellant's"current" conviction, the wire cutter were used to cut security tags off ofclothing, and not intended for stabbing or to be used as a weapon;therefore, petitioner should not be determined to be ineligible forresentencing under section 1170.126.

25. Lowe v. Superior Court DEPUBLISHED; FORMERLY AT: (2014) 228Cal.App.4th 387, the Third Appellate District held that the trial court didnot err in failing to resentence petitioner on his petition for resentencingunder the Three Strikes Reform Act of 2012 within the meaning of section1170.126, for a conviction of being a felon in possession of a firearm(formerly § 12021, now § 29800), and it was not error to considerevidence presented at the trial of the underlying charge. Although therehad been a prior dismissal of two counts of second-degree 187 and anacquittal on one count of section 245, those verdicts in appellant's favordid not preclude the trial court from deciding, based on the trial evidence,that defendant was armed with a firearm and intended to cause great bodilyinjury when he committed the felon-in-possession; and therefore he wasineligible for resentencing under the act. Further, the defendant’s petitionfor resentencing did not invoke a Sixth Amendment right to a jury trial,under Apprendi, (see People v. McGee (2006) 38 Cal.4th 38 682) onwhether he was armed with a firearm or intended to cause great bodilyinjury. The trial court’s factual findings, in response to the petition forresentencing, did not implicate double jeopardy. (Id., at pp. 691-692.)

26. People v. Guilford (2014) 228 Cal.App.4th 651, the Third AppellateDistrict held that the trial court did not err in denying petitioner's motion torecall his sentence and resentence him under section 1170.126. This courtpreviously found that the petitioner's "current" conviction for spousalabuse, intended to cause great bodily injury to the victim, is a seriousand/or violent felony, and as a result he was disqualified fromresentencing. (See sec. 667, subd. (e)(2)(C)(iii).) While the court isrequired to make findings with respect to disqualifying factors, there is norequirement that such factors be pled and proven by the prosecution. Additionally it was not error to look to evidence from this court's previousopinion to determine if the act qualifies as a strike. (See People v. Woodell(1998) 17 Cal.4th 448, 454-457.) Furthermore, the petitioner does nothave the right to have a jury determine beyond a reasonable doubt,

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downward modifications of sentence due to intervening laws. (People v.Superior Court (Kaulick) (2013) 215 Cal.App.4th 1279, 1304; see alsoDillion v. United States (2010) 560 U.S. 817, 828-829 [186 L.Ed.2d 314].)

27. People v. Soto REVIEW GRANTD; FORMERLY AT: (2014) 228Cal.App.4th 967, the Second Appellate District, Division 3 held that thetrial court did not err when it denied petitioner's motion to be resentencedunder section 1170.126, subdivision (f). The petitioner had a priorconviction for being armed with a firearm during the commission of theprior offense within the meaning of section 1170.126, subdivision(e)(2)(C)(iii), and was therefore not eligible for resentencing under theThree Strikes Reform Act, even if the sentence for the prior convictionwas stayed. Additionally, the Court of Appeal held that even thoughpetitioner would appear to be eligible for resentencing on another countthat, if standing alone, would qualify for resentencing, the court found thatto be an idle act and one in which this court will not recognize.

28. People v. Quinones (2014) 228 Cal.App.4th 1040, the Third AppellateDistrict held that an arming enhancement within the meaning of section12022, subdivision (c), which was found true by jury, but was dismissedfor sentencing purposes at the defendant’s original 1996 sentencinghearing, may be used to disqualify him for resentencing under Proposition36, section 1170.126, subdivision (c)(2)(C)(iii). (See People v. White(2014) 223 Cal.App.4th 512 [the trial court can look to the facts of thecase to determine if a firearm was used, and if it would disqualifypetitioner for resentencing].)

29. People v. Hubbard (2014) REVIEW GRANTED; FORMERLY AT: 228 Cal.App.4th 1442, the Third Appellate District held that where thedefendant has multiple current commitment convictions arising from asingle case, including at least one conviction for an offense that precludesresentencing under the Three Strikes Reform Act, section 1170.126, thedefendant is not eligible for resentencing as to any count, because thedisqualification applies to the judgment as a whole, not merely to specificcounts. Since the prior convictions consisted of a violent felony and non-violent felonies, this is what is being referred to as a "hybrid"indeterminate life sentence.

30. People v. Atkins (2014) 229 Cal.App.4th 536, the Second AppellateDistrict, Division 5 held that where the defendant's sole indeterminate lifeterm he was serving was for stalking, a non-serious, non-violent felony,and where his serious felony convictions for criminal threats were stayed,those criminal threat offenses did not permit the denial of his resentencingpetition under Proposition 36. The defendant's current sentences andoffenses contain none of the elements in section 667, subdivision(e)(2)(C)(i)-(iii) or 667, subdivision (c)(2)(C)(i)-(iii), and as a result

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appellant is eligible for resentencing. (See People v. White (2014) 223Cal.App.4th 512-523.)

31. People v. Anderson (2014) 229 Cal.App.4th 925, the Third AppellateDistrict held that the defendant is not entitled to Wende review on anappeal from the denial of a petition for resentencing under section1170.126, Three Strikes Reform Act of 2012, since it was not thedefendant’s first appeal as of right from a criminal conviction, and therewas no independent due process right to a Wende review in this particularcontext.

32. Schinkel v. Superior Court (2014) 229 Cal.App.4th 935, the ThirdAppellate District held that the defendant was ineligible for resentencingunder section 1170.126, the Three Strikes Reform Act of 2012, since hisconviction for solicitation of murder necessarily included the intent tocause great bodily injury. Additionally, the defendant was not eligible forresentencing on other nondisqualifying current convictions because themodification to the Three Strikes Law excludes the defendant’s class ofdangerous criminals from the benefit of resentencing. The defendant wasnot entitled to a jury trial on whether he was eligible for resentencing.

33. People v. Tubbs (2014) 230 Cal.App.4th 578, the Fifth Appellate Districtheld that the trial court, in resentencing defendant under the Three StrikesReform Act, (Proposition 36) must impose a term of post-releasecommunity supervision if the underlying crime is one for which the lawnow requires PRCS, and defendant cannot receive credit against the termof PRCS for time served in excess of the reduced sentence. (See People v.Espinoza (2014) 226 Cal.App.4th 635, 639-641.)

34. People v. Garcia (2014) 230 Cal.App.4th 763, the Third Appellate Districtheld that the term "unreasonable risk of danger to public safety," as used inthe limited retroactivity provision of the Three Strikes Reform Act of2012, section 1170.126, subdivision (g), which permits a trial court todeny resentencing to an otherwise-qualified defendant if the prosecutionshows that the release of the defendant carries such a risk, is notunconstitutionally vague. The term is clear because it can be objectivelyascertained by reference to the examples of evidence the trial court mayconsider in making this determination. (Cf. People v. Morgan (2007) 42Cal.4th 593, 606.)

35. People v. Brimmer (2014) 230 Cal.App.4th 782, the Fourth AppellateDistrict, Division 2 held that the trial court erred in granting thedefendant's motion to resentence him to a determinate term under section1170.126, where he was convicted of possession of firearm by convictedfelon and possession of short-barreled shotgun, and this Court of Appealfound that he was ineligible for resentencing since the offense involved a

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firearm, and he was therefore excluded pursuant to section 667,subdivision (e)(2)(C)(iii). There is no requirement that the arming occurduring a separate offense in order for the ineligibility provision to apply.(See People v. Blakely (2014) 225 Cal.App.4th 1042; People v. White(2014) 223 Cal.App.4th 512, 523-525; People v. Osuna (2014) 225Cal.App.4th 1020, 128-130.) Additionally, the Court of Appeal found thatthere is no pleading and proof requirement even though the defendantargued such based on sections 667, subdivision (e)(2)(C) and 1170.12,subdivision (c)(2)(C). (People v. White, supra, 223 Cal.App.4th at p. 527.)

36. People v. Anthony (2014) 230 Cal.App.4th 1176, the Fourth AppellateDistrict, Division 2 held that the trial court did not err when it failed toresentence the defendant under section 1170.126, subdivision (e)(1), dueto the fact that one of his offenses was a serious or violent felony and theother not. The Court of Appeal found that the court's denial for both of histhree-strikes sentences was correct where any of those sentences wasimposed for a serious or violent felony.

37. People v. Brown (2014) 230 Cal.App.4th 1502, the Fourth AppellateDistrict, Division 2 held that the trial court, in considering a resentencingpetition under the Three Strikes Reform Act of 2012, section 1170.126,the trial court does not have discretion to strike a disqualifying priorconviction under People v. Superior Court (Romero) 1996) 13 Cal.4th497), here a violation of section 288a, subdivision (c) (oral copulation byforce).

38. Teal v. Superior Court (2014) 60 Cal.4th 595, the California SupremeCourt held that the denial of a petition to recall a sentence, under section1170.126, under its limited retroactivity provision, is an appealable order.

39. People v. Hicks (2014) 231 Cal.App.4th 275, the Third Appellate Districtheld that where the defendant is serving a sentence for being a felon inpossession of a firearm was "armed with a firearm," section 29800, andformer section 12021, during the commission of the offense is ineligiblefor resentencing under the limited retroactivity provisions of the ThreeStrikes Reform Act of 2012, pursuant to section 667, subdivision(e)(2)(C)(iii) and section 1170.12, subdivision (c)(2)(C)(iii). There is norequirement that defendant receive a sentence for arming himself, distinctfrom the sentence imposed for the underlying crime, or that there be aseparate pleading and proof of the arming. Additionally, the trial court didnot err in relying on facts set forth in appellate opinion (see People v.Woodell (1998) 17 Cal.4th 448, 456), to determine that the defendant was"armed with a firearm" during commission of the offense. (See alsoPeople v. Guerrero (1988) 44 Cal.3d 343, 355.)

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40. People v. Chubbuck (2014) 231 Cal.App.4th 737, the Sixth AppellateDistrict held that the trial court did not err when it denied the defendant'sresentencing petition under Proposition 36, section 1170.126. The courtfound that the defendant was ineligible for resentencing due to the fact that"[d]uring the commission of" the third-strike offense, which was aviolation of section 653f, subdivision (a), solicitation to commit an assaultor by means of force likely to cause great bodily injury, the defendant"intended to cause great bodily injury to another person." There is norequirement that the disqualifying factor have been pled and proven in theunderlying case. (See People v. Brimmer (2014) 230 Cal.App.4th 782;People v. Elder (2014) 227 Cal.App.4th 1308; People v. Blakely (2014)225 Cal.App.4th 1042.)

41. People v. Chaney REVIEW GRANTED; FORMERLY AT: (2014) 231Cal.App.4th 1391, the Third Appellate District established that thedefendant filed a petition to modify his Three Strike sentence, undersection 1170.126, subdivision (f). He contended that the newly createddefinition of danger to public safety, as defined in the newly passedProposition 47, should apply to his case. That provision reads,"unreasonable risk of public safety, he sought to have the definition of "anunreasonable risk of danger to public safety" means an "unreasonable riskthat the petitioner will commit a new violent felony within the meaning ofclause (iv) of subparagraph (C) of paragraph (2) of subdivision (e) ofsection 667. (§ 1170.18, subd. (c)." The Court of Appeal found that thisnew definition does not apply retroactively, as it does not per se effectappellant's sentence. (See People v. Brown (2012) 54 Cal.4th 314, 319-325.)

42. People v. Oehmigen (2014) 232 Cal.App.4th 1, the Third AppellateDistrict held that the court did not err when it denied the defendant’smotion to resentence him under Proposition 36, section 1170.126, due tothe fact that he admitted, at the time of entry of plea to charge of assaultwith force likely to inflict great bodily injury, that he had driven his carpurposefully at a police officer. The use of the car was the deadly weapon. This admission established that the prior crime was a violent or seriousfelony, therefore, the trial court’s denial of the resentencing petitionwithout a hearing was not a due process violation, since he was notresentenced (People v. Superior Court (Kaulick) (2012) 215 Cal.App.4th1279, 1297-1298 [defendant is entitled to be present for a resentencing]),and was correct on the merits.

43. People v. Valencia REVIEW GRANTED; FORMERLY AT: (2014) 232Cal.App.4th 514, the Fifth Appellate District held that section 1170.18,subdivision (a), a provision of Proposition 47 by which a person currentlyserving a felony sentence for an offense that is now a misdemeanor maypetition for a recall of that sentence and request resentencing. However,

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the trial court denied this Three-Strike offender's sentence modificationsince there is nothing in Proposition 47 that permits the modification orresentencing provisions of Proposition 36, the Three Strikes Reform Act,to be changed. Appellant had argued that the new definition of"unreasonable risk of public safety," codified in Proposition 47 in section1170.18, subdivision (c), which reads "an unreasonable risk of danger topublic safety" means an "unreasonable risk that the petitioner will commita new violent felony within the meaning of clause (iv) of subparagraph (C)of paragraph (2) of subdivision (e) of section 667, does not apply to aperson, like the defendant, who comes under the provisions of theProposition 36, section 1170.126; therefore, the trial court did not abuse itsdiscretion in failing to resentence him applying the new definition of"unreasonable risk to public safety."

44. People v. Payne REVIEW GRANTED; FORMERLY AT: (2014) 232Cal.App.4th 579, the Third Appellate District held that the trial court didnot err in denying appellant's motion to modify his sentence within themeaning of section 1170.126, the Three-Strikes Reform Act, Proposition36. The prosecution has the burden of proving, by a preponderance of theevidence, (People v. Superior Court (Kaulick) (2013) 215 Cal.App.4th1279, 1301), facts on which a finding that resentencing petitioner wouldpose an "unreasonable risk of danger to public safety" reasonably can bebased. On appeal, the court determines whether there is substantialevidence to support a factual finding, but reviews the ultimatedetermination of dangerousness under the abuse-of-discretion standard.(See People v. Rodriquez (1994) 8 Cal.4th 1060, 1124-1125; People v.Williams (1998) 17 Cal.4th 148, 162.)

45. People v. Losa (2014) 232 Cal.App.4th 789, the Fifth Appellate Districtheld that the trial court did not err in denying the defendant's motion forresentencing under section 1170.126, Proposition 36, where the petitionfor resentencing is opposed on dangerousness grounds (§ 1170.126, subd.(f)), has no equal protection right to a jury trial pursuant to Apprendi v.New Jersey (2000) 530 U.S. 466, and its progeny, or to a finding of proofbeyond a reasonable doubt. (People v. Superior Court (Kaulick) (2013)215 Cal.App.4th 1279, 1301.) Defendants seeking resentencing under theinitiative are not similarly situated to other defendants. (Id., at p. 1306.)

46. People v. Franco (2014) 232 Cal.App.4th 831, the Fifth Appellate Districtheld that a trial court may, but is not required to, order a supplementalprobation report for the "dangerousness" hearing, pursuant to section1170.126, subdivision (f), in making the determination whether the courtshould resentence the defendant under Proposition 36. Where as here, thedefendant was ineligible for probation, even though he could have beenresentenced as a "two strike" defendant, the failure to object to proceedingwithout one, such is a waiver and the forfeiture of that right to object on

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appeal. (People v. Murray (2012) 203 Cal.App.4th 277, 289, fn 12.) Waiver and forfeiture do not apply where the defendant is eligible forprobation. (People v. Dobbins (2005) 127 Cal.App.4th 176, 178, 181-182.)

47. People v. Aparicio REVIEW GRANTED; FORMERLY AT: (2015) 232Cal.App.4th 1065, the Fourth Appellate District, Division 1 held, onrehearing, that the court of appeal uses an abuse of discretion standardapplies when reviewing an appeal from a trial court's denial of a petitionunder Proposition 36, section 1170.126, when the trial court deniedpetitioner's resentencing based on the trial court's finding that release ofthe petitioner would present an unreasonable risk of danger to publicsafety. (§ 1170.126, subd. (f).) Petitioner had a very long, and violent,prior history of crime, but recently he had obtained his GED, participatedin vocational programs and began Alcoholics and Narcotics Anonymous. This court held that it was not going to determine whether the newdefinition of "unreasonable risk of danger to public safety," as defined inProposition 47, applies retroactively to cases coming under Proposition 36,the Three-Strikes Reform Act. That issue has been discussed in People v.Chaney (2014) 231 Cal.App.4th 1391, and People v. Valencia REVIEWGRANTED; FORMERLY AT: (2014) 232 Cal.App.4th 514. This courtheld that the petitioner can file a writ in the superior court under section1170.18, Proposition 47, to determine if the definition of "unreasonablerisk of danger to the community," as applied to Proposition 36, should begiven the meaning as defined in Proposition 47, or whether it did not applyretroactively.

48. People v. Superior Court (Burton) REVIEW GRANTED; FORMERLYAT: (2015) 232 Cal.App.4th 1140, the Fourth Appellate District, Division2 held that the trial court erred when it ordered the petitioner's petition forresentencing under the Three Strikes Reform Act, section 1170.126,continued for two years, so that the inmate could prove to the court he wasno longer a danger to society, was without statutory authority. Where thetrial court found the inmate to be a danger to the public as of the date ofthe hearing, the petition should have been denied.

49. People v. Superior Court (Williams) REVIEW GRANTED; FORMERLYAT: (2015) 232 Cal.App.4th 1149, the Fourth Appellate District, Division2 held that trial court erred when it ordered the petitioner's petition forresentencing under the Three Strikes Reform Act, section 1170.126, fortwo years, so that the inmate could prove to the court he was no longer adanger to society, was without statutory authority. Where trial court foundinmate to be a danger to the public as of the date of the hearing, petitionshould have been denied.

50. People v. Armogeda REVIEW GRANTED; FORMERLY AT: (2015) 233Cal.App.4th 428, the Fourth Appellate District, Division 3 held that

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Postrelease Community Supervision Act of 2011, section 3450 et. sec.,which was passed by the legislature, to the extent it permits revocation ofpostrelease community supervision for a person who commits a non-violent drug possession (NVDP) offense, (see § 3455) and permitsconfinement time, conflicts with voter-approved Proposition 36, whichwas passed in 2000, and thus violates the state Constitution. Appellantcontended, and the Court of Appeal agreed that he should have beenclassified as a parolee under section 3063.1 and given drug treatmentinstead of jail.

51. People v. Rodriguez (2015) 233 Cal.App.4th 1403, the Fifth AppellateDistrict held that the trial court did not err when it denied resentencingunder the Three Strikes Reform Act of 2012, Proposition 36, Penal Codesection 1170.126, to appoint an expert witness to testify whether thedefendant would pose an unreasonable risk of danger to public safety.(People v. Flores (2014) 227 Cal.App.4th 1070, 175 [a superior courtjudge is capable of exercising discretion on determining whether thedefendant would pose a risk of danger to public safety].) The court hasdiscretion to appoint such an expert, but is not required to do so.

52. People v. Tittle (2015) 234 Cal.App.4th 452, the Second AppellateDistrict, Division 1 held that, the trial court did not err when it addedsentence enhancements for violations of section 667.5, subdivision (b),prior prison terms, and for a prior serious felony pursuant to section 667,subdivision (a)(1) to two separate determinate counts. The Court ofAppeal found that People v. Tassell (1984) 36 Cal.3d 77, which held thatenhancements based on the defendant’s status such as the twoenhancements above, could be added only once to the aggregate sentence,is applicable when multiple terms are imposed pursuant to section 1170.1,but not when such terms are imposed under the Three Strikes Law. Thisissue is now before the Supreme Court in People v. Sasser (S217128).

53. People v. Crockett REVIEW GRANTED; FORMERLY AT: (2015) 234Cal.App.4th 642, the Third Appellate District held that the defendant doesnot have a constitutional right to a jury trial on the issue the issue of"dangerousness to public safety" pursuant to Apprendi v. New Jersey(2000) 530 U.S. 466 [147 L.Ed.2d 435], nor is the prosecution held to ahigher standard of proof than preponderance of the evidence. (See Peoplev. Elder (2014) 227 Cal.App.4th 1308, 1315; People v. Superior Court(Kaulick) (2013) 215 Cal.App.4th 1279, 1304-1305). The Court of Appealfound that the trial court did not abuse its discretion in concluding that thedefendant’s history of recidivism and parole violations established that hewas a danger to the public despite his successful participation in prisonnumerous rehabilitation programs.

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54. People v. Davis (2015) 234 Cal.App.4th 1001, the First Appellate District,Division 2 held that When a trial court declines to grant an inmate’spetition for resentencing under the Three Strikes Reform Act on theground that this would pose an unreasonable risk of danger to publicsafety, (§ 1170.126, subdivision (f)), that decision should be upheld onappeal unless the reviewing court is able to conclude that the decisionqualifies as an abuse of the considerable discretion granted by the act. Thetrial court did not abuse its discretion in making an "unreasonable risk"finding based on the defendant’s continued denial that he committed thethird-strike offense, his hostile attitude toward authority and society, andhis lack of post-release plans. Additionally the more restrictive definitionof "unreasonable risk" in Proposition 47 under section 1170.18,subdivision (c), did not narrow the definition of the term for purposes ofthe Three Strikes Reform Act.

55. People v. Smith (2015) 234 Cal.App.4th 1460, the Fourth AppellateDistrict, Division 3 held that where the defendant had suffered a third-strike conviction, for a crime not classified as a serious or violent felony,and not otherwise punishable as a third strike under section 1170.126(Three Strikes Reform Act of 2012), became final prior to the enactmentof section 1170.126, is not entitled to resentencing as a matter of right,(rejecting the argument under In re Estrada (1965) 63 Cal.2d 740), butmust petition for discretionary resentencing pursuant to the act. (See §1170.126, subdivision (a).) Persons sentenced before the act became law,and those sentenced after it became law, are not similarly situated forequal protection purposes, nor does treating such persons differentlyconstitute "unusual" punishment.

56. People v. Guzman (2015) 235 Cal.App.4th 847, the Fourth AppellateDistrict, Division 3 held that the definition of "unreasonable risk of dangerto public safety," spelled out in Proposition 47, section 1170.18,subdivision (c), which permits resentencing of certain defendantspreviously convicted of felonies that have been reduced to misdemeanorsby that initiative, does not apply to resentencing petitions brought by three-strikes defendants under Proposition 36 under section 1170.126. Additionally, the court did not abuse its discretion in denying the petitionto modify his sentence within the meaning of section 1170.126.

57. People v. Sledge REVIEW GRANT AND HOLD; FORMERLY AT:(2015) 235 Cal.App.4th1191, the Fourth Appellate District, Division 3held that in denying resentencing due to the fact that the court found thedefendant posed "a substantial risk to public safety" within the meaning ofsection 1170.126, subdivision (f), the trial court was entitled to considerall relevant evidence, including evidence that defendant used a firearmduring the commission of a past crime, even though no firearmenhancement was imposed, since the court heard the facts at the trial, and

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was entitled to consider witness statements in a presentence report. (§1170.126, subd. (g)(3).) The alleged error of the trial court in relying onfacts not supported by the record, with respect to resentencing motion, washarmless where it was undisputed that defendant had a history of heavydrug use, criminal violence and mental illness. Additionally, the trial courtfound that the definition of "unreasonable risk of danger to public safety,"spelled out in Proposition 47, section 1170.18, subdivision (c), whichpermits resentencing of certain defendants previously convicted of feloniesthat have been reduced to misdemeanors by that initiative, does not applyto resentencing petitions brought by three-strikes defendants under section1170.126.

58. People v. Galvan REVIEW GRANTED; FORMERLY AT: (2015) 235Cal.App.4th 1318, the Fourth Appellate District, Division 3 held that thetrial court did not err in denying resentencing under section 1170.126,since in determining whether the prior conviction, which would make himineligible, was a violent or serious felony, is the classification of that crimeas of the date section 1170.126, came law, and not the date when appellantsuffered the prior conviction. This issue is currently pending in Braziel v.Superior Court, formerly at: (2014) 225 Cal.App.4th 933.

59. People v. Berry (2015) 235 Cal.App.4th 1417, the Fourth AppellateDistrict, Division 3 held that the court erred in denying appellant's petitionfor resentencing under section 1170.126, and it is remanded to the trialcourt for a determination whether appellant poses an unreasonable risk topublic safety under section 1170.126, subdivision (f). The Court ofAppeal found that where the defendant was convicted and sentenced priorto the enactment of section 1170.126, and received an indeterminate lifesentence for a crime that was not a serious or violent felony, after afirearms allegation was dismissed as part of a plea bargain, the trial courterred in relying on the alleged gun use to find defendant ineligible forresentencing. However, on remand the court can consider evidence ofsuch use in determining whether to deny resentencing based on a findingof dangerousness.

60. People v. Rusconi (2015) 236 Cal.App.4th 273, the Fourth AppellateDistrict, Division 1 held that, where the defendant was convicted in 1986of two counts of vehicular manslaughter, the two convictions arose out ofan incident in which the defendant was driving under the influence, andtwo people were killed, and then in 2005, she was convicted of drivingunder the influence under Vehicle Code section 23152, subdivisions (a)and (b), and the court sentenced her to 25-L, the court properly denied apetition under section 1170.126, since her two prior felony convictionswere for manslaughter. Now the defendant argues that People v. Vargas(2014) 59 Cal.4th 635 should strike one of the manslaughter convictions. A defendant’s multiple felony convictions for injuring "multiple victims"

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by a single violent act are separate offenses, and strikes; as a result thecourt's refusal to modify the defendant's life sentence was not error.

61. People v. Lopez REVIEW GRANT AND HOLD; FORMERLY AT:(2015) 236 Cal.App.4th 518, the Sixth Appellate District held that the trialcourt did not err in denying the petitioner a modification of his Three-Strike sentence within the meaning of section 1170.126. The Court ofAppeal ruled that he is not entitled to a jury trial, pursuant to Apprendi v.New Jersey (2000) 530 U.S. 466, on the issue of whether suchresentencing would create "an unreasonable risk of danger to publicsafety." (§ 1170.126, subd. (f); People v. Superior Court (Kaulick) (2013)215 Cal.App.4th 1279, 1302-1303.) Trial court did not abuse itsdiscretion in finding that petitioner was unreasonably dangerous given hislong history of criminal violence. Petitioner’s lack of recent violence in theenvironment of a high-security prison did not compel the conclusion thathe would not return to a life of criminal violence once released. Finally,Proposition 47, section 1170.18, which permits certain felons to beresentenced as misdemeanants absent an "unreasonable risk of danger topublic safety," as that phrase is narrowly defined by that proposition, didnot alter the broader definition of the phrase as used in Proposition 36.

62. People v. Denize (2015) 236 Cal.App.4th 966, the Sixth Appellate Districtheld that the trial court did not err in failing to appoint counsel for thepetitioner who filed a writ under section 1170.126 seeking resentencing,where he did not establish a prima facie case that he was entitled to relief. He is entitled to counsel had the requirements been met. (See People v.Shipman (1965) 62 Cal.2d 226; Gardner v. Florida (1977) 430 U.S. 349,358 [defendant is entitled to counsel at a sentencing hearing].) Howeverthe initial screening of a section 1170.126 petition to determine eligibilityfor resentencing is not a sentencing hearing. The Court of Appeal foundthat the petitioner who is serving two three-strikes sentences, one for aserious offense and one for a nonserious offense, is not eligible forresentencing under the Reform Act. The dissent disagreed, and now thatposition is adopted based on In re Machado, infra.

63. People v. Johnson and People v. Machado (2015) Cal.4th 674, theCalifornia Supreme Court held that for purposes of resentencing a three-strikes defendant under Proposition 36 (§ 1170.126, subd. (a)), theclassification of an offense as a serious or violent felony is determined asof November 7, 2012, the effective date of Proposition 36, and not the datethe law when the offense was committed. An inmate who was convictedof both a serious or violent felony and a felony that is neither serious norviolent is eligible for Proposition 36 resentencing with respect to thefelony that is neither serious nor violent.

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64. People v. Amaya (2015) 239 Cal.App.4th 379, the Fourth AppellateDistrict, Division 2 held that where the trial court initially resentenced thedefendant under the Three Strikes Reform Act, Proposition 36, it did so inthe mistaken belief that a gang finding which had originally attached to theoriginal sentence had been stricken. The ca found that the new sentenceunder Proposition 36 was void on its face of the record. (See People v. DeBlasio (1963) 219 Cal.App.2d 767, 769.) As a result the trial court did noterr in vacating the reduced sentence upon discovery of the error andreimposing the original sentence.

65. People v. Arias (2015) 240 Cal.App.4th 161, the Fifth Appellate Districtheld that, a juvenile adjudication that constitutes a conviction for purposesof sentencing under the Three Strikes Law, section 667, subdivisions(b)-(i), also constitutes a conviction for purposes of determining eligibilityfor resentencing under the Three Strikes Reform Act, section 1170.126.The Court of Appeal found that the defendant, who was sentenced underthe Three Strikes Law for crimes not classified as violent or serious, butwho had a juvenile adjudication for murder, was not eligible forresentencing. Welfare and Institutions Code section 203, which precludesjuvenile adjudications from being "deemed a conviction" "for anypurpose," has been superseded to the extent it conflicts with the ThreeStrikes Law. (See People v. Pacheco (2011) 194 Cal.App.4th 343,345-346.)

66. People v. Nettles (2015) 240 Cal.App.4th 402, the Third Appellate Districtheld that the defendant was ineligible for resentencing under the ThreeStrikes Reform Act (Proposition 36), section 1170.126, given the fact thathe had a prior conviction for a "sexually violent offense," assault with theintent to commit rape (Welf. & Inst. Code § 6600), even though it was nota disqualifying offense at the time it was committed in 1998. However, atthe time of the resenting it was defined under section 1170.126, as asexually violent felony, and therefore, he was disqualified for resentencingunder the modified Three Strikes Law. (See People v. Johnson (2015) 61Cal.4th 674, 683 [the classification of an offense as a serious or violent forpurposes of resentencing is based on the law as of the date Prop. 36 wentinto effect, November 7, 2012].)

67. People v. Lynn (2015) 242 Cal.App.4th 594, the Second AppellateDistrict, Division 3 held that pursuant to People v. Johnson (2015) 61Cal.4th 674, 688, the trial court erred in denying petitioner's petition forresentencing under Proposition 36, section 1170.126. The trial court erredin ruling that defendant’s conviction of robbery, a serious or violentfelony, made him ineligible for Proposition 36 resentencing on hisconviction of attempted grand theft, which was not a serious or violentfelony.

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68. People v. Esparza (2015) 242 Cal.App.4th 726, the Sixth AppellateDistrict held that the trial court erred in using the wrong standard ordefinition for "an unreasonable risk of danger to public safety," when itdenied petitioner's Proposition 36, section 1170.126, petition by placingthe burden of proof upon the defendant pertaining to his dangerousness. Denial of Proposition 36 resentencing had to be reversed where the trialcourt based its ruling in part on defendant’s extensive record ofconvictions, which were largely alcohol-related, and on a finding thatdefendant did not attend prison AA meetings until the law changed tomake him eligible for resentencing, which finding was not supported bythe record. In determining whether the prosecution has carried its burdenof proving dangerousness, in order to support denial of resentencing to aneligible defendant, the primary focus must be on current rather than pastdangerousness.

69. People v. Denard (2015) 242 Cal.App.4th 1012, the Second AppellateDistrict, Division 1 held that the prosecution failed to prove that thedefendant’s prior burglary and manslaughter convictions in Floridaconstituted "strikes" under California’s Three Strikes Law. BecauseFlorida second-degree burglary encompasses some forms of conduct thatdo not constitute serious or violent felonies in California, and Floridamanslaughter includes conduct that would constitute involuntarymanslaughter, which is not a serious or violent felony in California, thedocuments (see People v. Woodell (1998) 17 Cal.4th 448, 453) provingonly that defendant was convicted of those Florida felonies did notestablish that those convictions were strikes. The nature of the"conviction" is at issue, and the court cannot go beyond the record ofconviction. (See People v. McGee (2006) 38 Cal.4th 682691, 706; see alsoPeople v.Guerrero (1988) 44 Cal.3d 343, 355.) Additionally, reliance onthe Florida probable cause affidavit in determining that appellant'smanslaughter conviction constituted a strike violated his SixthAmendment rights as it increased penalty. (Apprendi v. New Jersey (2000)530 U.S. 466, 490; Blakely v. Washington (2004) 542 U.S. 296, 303-304{124 S.Ct. 2531, 159 L.Ed.2d 243; Cunningham v. California (2007) 549U.S. 270, 274-275; Descamps v. U.S. (2013) 570 U.S. [133 S.Ct. 2276,2288, 186 L.Ed.2d 438, 456].)

70. People v. Burnes (2015) 242 Cal.App.4th 1452, the Sixth AppellateDistrict held that the trial court erred in relying on facts described in apost-conviction probation report when determining that defendant wasarmed during the commission of his third "strike" and thus ineligible forresentencing under the Three Strikes Reform Act, Proposition 36, section1170.126. The probation report was neither admissible nor reliable, (seePeople v. Oehmigen (2015) 232 Cal.App.4th 1, 5, [the probation report isnot part of the ordinary record of conviction, and the court may only relyon reliable evidence in determining whether the defendant was eligible

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under Proposition 36]), constituting double hearsay or multiple hearsay,and not having been shown by the prosecution to be admissible under anexception to the hearsay rule. Mere possession of a firearm or deadlyweapon does not establish that the defendant was armed with a firearm ordeadly weapon. (People v. Blakely (2014) 225 Cal.App.4th 1042, 1057)and the trial court could not rely on the probation report in making thedetermination whether the defendant was armed and had the firearmavailable for offensive or defensive use, and not merely in possession ofweapon. (Id. at 1048.)

71. People v. Estrada (2015) 243 Cal.App.4th 336, the Second AppellateDistrict, Division 8 held that the trial court did not err when it denied thedefendant's motion for resentencing under Proposition 36, Penal Codesection 1170.126, as he was ineligible for resentencing due to the fact thatthe showing at the preliminary hearing established that he used a firearmduring the commission of the grand theft, section 487, subdivision (c). Appellant pled to that offense, and other offenses, such as multiplerobberies were dismissed. Therefore, the defendant was ineligible forresentencing since he had a strike within the meaning of section 667,subdivision (e)(2)(C)(iii). There is no requirement within Proposition 36that the disqualifying enhancement has to be pled. (People v. Hicks (2014)231 Cal.App.4th 275, 279, 285.)

72. People v. Superior Court (Rangel) (2016) 243 Cal.App.4th 992, the FourthAppellate District, Division 2 held that the trial court did not err when itgave appellant credit for custody time served beyond the new sentence hereceived under Proposition 36, section 1170.126, against term of"community supervision" under section 3451, subdivision (a).

73. People v. Thurston (2016) 244 Cal.App.4th 644, the First AppellateDistrict, Division 2 held that the defendant’s juvenile adjudication(conviction) for rape, rendered him ineligible for resentencing underProposition 36, the Three Strikes Reform Act, sectioin 1170.126, eventhough it was not pled or proven as a "strike" in the underlying three-strikes case. Section 1170.126 prospectively changed the Three Strikeslaw by reserving indeterminate sentences for cases where the new offenseis also a serious or violent felony, unless the prosecution pleads and provesan enumerated disqualifying factor. (People v. Chubbuck (2014) 231 ca4737, 740-741.) Under section 1170.126, subdivision (e)(3), an inmate isnot eligible for resentencing if he or she has a prior conviction for anyoffense appearing in section 667, subdivision (e)(2)(C)(iv), or section1170.12, subdivision (c)(2)(C)(iv). As relevant here, the referencedoffenses include a “ ‘sexually violent offense’ as defined by subdivision(b) of Section 6600 of the Welfare and Institutions Code.” (§ 1170.12,subdivision (c)(2)(C)(iv)(I); § 667, subdivision (e)(2)(C)(iv)(I).) Section1170.126 does not impose the same requirements in connection with the

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procedure for determining whether an inmate already sentenced as a thirdstrike offender is eligible for resentencing as a second strike offender.”(People v. Osuna (2014) 225 Cal.App.4th 1020, 1033.) Section 1170.126,subdivision (e), provides: “An inmate is eligible for resentencing if: . . . [¶](3) The inmate has no prior convictions for any of the offenses appearingin clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e) ofSection 667 or clause (iv) of subparagraph (C) of paragraph (2) ofsubdivision (c) of section 1170.12.” Clause (iv) of each of the referencedstatutes, as indicated above, provides, “The defendant suffered a priorconviction, as defined in [the Three Strikes law], for any of the followingserious and/or violent felonies: [¶] (I) A ‘sexually violent offense’ asdefined in subdivision (b) of section 6600 of the Welfare and InstitutionsCode.” (§§ 1170.12, subd. (c)(2)(C)(iv), 667, subd. (e)(2)(C)(iv).) section1170.126, subdivision (e)(3), thus cross-references only “the offensesappearing in” the specified clauses and “not the text preceding them thatspecifies the procedural prerequisite of pleading and proof.” (People v.Elder (2014) 227 Cal.App.4th 1308, 1315; People v. White (2014) 223Cal.App.4th 512, 526-527.) Therefore, the electorate intended to reducethe sentences of a Three Strikes inmate, who, if sentenced under theReform Act, would still receive a three strikes sentence. (See People v.Arias (2015) 240 Cal.App.4th 161.)

74. People v. White (2016) 243 Cal.App.4th 1354, the Fourth AppellateDistrict, Division 3 held that, where the defendant was "armed" whilecommitting the crime of possession of a firearm by a convicted felon (§12021, subd. (a)), he was ineligible for resentencing under the ThreeStrikes Reform Act, section 1170.126, where a gun was found in a trashcan, and jury necessarily found that defendant had either disposed of thegun while being followed by police, or that he had placed it there earlier. The Court of Appeal found that he was "armed," during the commission ofthe offense, and was not merely possessing the weapon. (See People v.White (2014) 223 Cal.App.4th 512; see also People v. Elder (2014) 227Cal.App.4th 1308; People v. Vang (2010) 184 Cal.App.4th 912.)

75. People v. Garcia (2016) 244 Cal.App.4th 224, the Sixth Appellate Districtheld that the trial court did not err in denying petitioners petition to reducehis sentence under Proposition 36, section 1170.126. The trial courtcommented that the defendant had made no efforts at rehabilitation, didnot support the defendant’s claim that the court erroneously placed theburden of proof on the issue of dangerousness on the defendant. Thecourt's statements during the hearing made it clear that the burden of proofwas on the prosecution. The provisions of Proposition 36 that permits thetrial court to deny resentencing if petitioner is found dangerous to society,a provision inapplicable to defendants sentenced since the law took effect,does not deprive the former class of equal protection. (See People v.Yearwood (2013) 213 Cal.App.4th 161, 178-179.) The two groups are not

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similarly situated. Proposition 36 does not create a presumption in favor ofresentencing. There is no Sixth Amendment right to a jury trial on thedangerousness issue or to have the issue determined under a beyond areasonable doubt standard with respect to a Proposition 36 resentencingpetition.

76. People v. Johnson (2016) 244 Cal.App.4th 384, the Fifth AppellateDistrict held that the trial court properly denied petitioner's request forresentencing under Proposition 36, section 1170.126. The Court ofAppeal held that the term "serious bodily injury," as used in section 243,subdivision (d) and defined in section 243, subdivision (f)(4), is theequivalent of "great bodily injury," as that phrase is used in section 1192.7,subdivision (c)(8). Given the fact that an offense that involves great bodilyinjury is designated a serious or violent felony, and Proposition 36 makes adefendant convicted of such a felony "serious" felony and sentenced underthe Three Strikes Law ineligible for resentencing, a defendant convicted ofbattery with serious bodily injury in violation of section 243, subdivision(d) is not eligible for resentencing.

77. People v. Arevalo (2016) 244 Cal.App.4th 836, the Second AppellateDistrict, Division 3 held that the trial court erred in denying the defendanta resentencing under Proposition 36, section 1170.126, as the Court ofAppeal found him eligible for resentencing. In his prior matter thatsubjected him to his three strike sentence, the defendant had been foundguilty of grand theft auto, and driving without the owner's consent, but hehad been found not guilty of burglary, being in possession of a firearm byan ex-felon, and the enhancement for being armed with a firearm, not true. The trial court, in its review of the record for the resentencing determinedthat the defendant was not eligible since he used a firearm and thereforewas not eligible as it fell within the exclusion in section 667, subdivision(e)(2)(C)(iii). In order to determine whether the defendant was eligible,the court had to determine, whether the armed with a firearm allegationmade him ineligible, using the factors set forth in People v. Guerrero(1988) 44 Cal.3d 343 and its progeny. The Court of Appeal concludedthat the standard of proof required to make this finding was beyond areasonable doubt, and not by a preponderance of the evidence. Therefore,given that burden of proof, and the fact that the defendant had beenacquitted of the firearm offense and the arming enhancement, he waseligible for resentencing. (People v. Johnson (2015) 61 Cal.4th 674, 687.)

78. People v. Garner (2016) 244 Cal.App.4th 1113, the Third AppellateDistrict held that the defendant, who had received a third-strike sentencebased on a violation of sectoin 496, subdivision (a), was eligible forresentencing under Proposition 36, section 1170.126, but not for areduction to a misdemeanor under Proposition 47. The trial court did noterr in resentenced him on all of the charges that had been pending against

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him, including prior prison term enhancements, which purportedly hadbeen stricken during the original sentencing proceeding in light of thethird-strike life sentence. The Court of Appeal analogized thisresentencing to a "recall" of sentence under section 1170, subdivision (d),where the court is entitled to consider the entire sentence. The invalidityof one component infects the entire scheme. (People v. Hill (1986) 185Cal.App.3d 831, 834.) Additionally, the defendant was entitled to custodycredits earned in prison prior to resentencing. (People v. Buckhalter (2001)26 Cal.4th 20, 37.)

79. People v. Dobson (2016) 245 Cal.App.4th 310, the Fifth Appellate Districtheld that Proposition 36, section 1170.126, the Three Strikes Reform Act,does not permit a person found not guilty by reason of insanity (NGI) topetition for a recalculation of his maximum term of commitment. Thedistinction between such persons, and persons sentenced under the ThreeStrikes Law who may petition for resentencing under the Reform Act, doesnot violate equal protection. The Reform Act authors may have rationallyconcluded that defendants found NGI should be treated differently becausestate hospitals do not have the same overcrowding issues that prisons do.

80. People v. Myers (2016) Cal.App.4th , reported on March 28, 2016, in2016 Los Angeles Daily Journal 2559, the Third Appellate District heldthat the trial court did not err when it used the definition of"dangerousness" within the provisions of Proposition 36, section1170.126, and not the redefined definition as stated in Proposition 47,section 1170.18. This court found that Proposition 47, contained a"drafter's error" in that its statement that its definition of "an unreasonablerisk of danger to public safety" must be read to mean "throughout thisact,"as opposed to throughout this Code as it provides, in order toharmonize it with Proposition 36. The trial court did not abuse itsdiscretion in finding that the defendant posed an unreasonable risk topublic safety given his long record, defiance of authority, and vague plansfor reintegration into society. the defendant did not have a SixthAmendment right to a jury trial on the question whether he posed onundue risk to public safety.

81. People v. Florez (2016) Cal.App.4th , reported on March 28, 2016, in2016 Los Angeles Daily Journal 2832, the Sixth Appellate District heldthat The Three Strikes Reform Act, Propostion 36, section 1170.126, doesnot create a presumption, analogous to the presumption in favor of parolerelease after an inmate completes the mandatory portion of his or hersentence, in favor of resentencing of defendants sentenced prior to theact’s enactment. The trial court did not abuse its discretion in denyingresentencing petition, based on the "dangerousness" provision, section1170.126, subdivision (f), based on his history of violence in prison andthe inadequacy of evidence of his participation in substance abuse and

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anger management programs. Proposition 47, section 1170.18, did notamend the Three Strikes Reform Act, so its narrower definition of"dangerousness" does not apply to section 1170.126.

32. THE COURT CANNOT SUBSTITUTE TWO ATTEMPTED CRIMES, BOTHWHICH CONSTITUTE STRIKES, FOR ONE COMPLETED COUNT WHERETHE COURT OF APPEAL FOUND THE EVIDENCE INSUFFICIENT TOSUPPORT THAT CONVICTION, OR IS ONLY ONE CRIME PERMITTED

1. People v. Navarro (2007) 40 Cal.4th 668, the California Supreme Courtheld that where there was insufficient evidence to support a conviction forattempted kidnaping during a carjacking (see § 209.5, subd. (a)), sincethere was no movement of the vehicle and therefore no completedcarjacking, the appropriate remedy was not to modify the judgment bystriking the original single conviction, and substituting convictions forboth attempted kidnaping and attempted carjacking. The provisions ofsections 1181, subdivision (6), nor 1260 provide for this procedure. TheCourt of Appeal erred when it found that the substitution of two “strike”convictions for a single such conviction did not cause an unconstitutionalincrease in punishment. The Supreme Court clearly indicated that a onefor one modification is fine, but that they were reluctant, and constrainedfrom permitted a two for one switch.

2. People v. Eid (2014) 59 Cal.4th 650, the California Supreme Court heldthat where a defendant is charged but not convicted of the highest chargedoffense, here kidnaping for ransom, he may be convicted of multiple,lesser included offenses, here attempted extortion and false imprisonment,as long as none of the lesser offenses is included within any other of theother lesser offenses. Attempted extortion and false imprisonment areboth lesser included offenses of kidnapping for ransom, and neither lesseroffense is included within the other as it is possible to commit eitheroffense without committing the other. The trial court has a sua sponteduty to instruct on lesser included offenses. (People v. Braverman (1998)19 Cal.4th 142, 154.) Section 1159 provides that the defendant may befound guilty of "any offense" the commission of which is necessarilyincluded in that with which he is charged. These concepts distinguish thiscase from People v. Navarro (2007) 40 Cal.4th 668, 674-675, which holdsthat the jury's conviction of the defendant for two uncharged lesserincluded offenses from a single act was not statutorily authorized, but thestatutes addressed in Navarro, do not apply here, which are sections 1181,subdivision (6) and section 1260. In Navarro, Navarro was convicted ofattempted kidnaping during the commission of a carjacking, but the Courtof Appeal reversed judgment and instead of remanding the matter for anew trial, it modified the judgment to reflect convictions on two lesserincluded offenses: attempted carjacking and attempted simple kidnaping.

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There this court indicated that the modification was not authorized bystatute.

3. People v. Solis (2015) 232 Cal.App.4th 1108, the Second AppellateDistrict, Division 8 held that, consistent with People v. Eid (2014) 59Cal.4th 650, where that court held, that where a defendant is charged butnot convicted of the highest charged offense, here kidnapping for ransom,he may be convicted of multiple, lesser included offenses, here attemptedextortion and false imprisonment, as long as none of the lesser offenses isincluded within any other of the other lesser offenses. In Solis, thedefendant who was charged with one offense was properly convicted by ajury of two lesser related offenses, where neither of the two lesser relatedoffenses was included in the other. Here the defendant was found notguilty of premeditated murder, second degree murder and voluntarymanslaughter, but guilty of mayhem and assault with a deadly weapon,both as lesser related charges to count 1.

33. THE SENTENCE FOR GASSING WITHIN THE MEANING OF SECTION 4501.5MUST BE CONSECUTIVE TO OTHER OFFENSES AND IF MORE THAN ONE,TO EACH OTHER

1. People v. Hojnowski (2014) 228 Cal.App.4th 794, the First AppellateDistrict, Division 5, held that the trial court did not err by imposingconsecutive sentences for three counts of gassing, within the meaning ofsection 4501.1 and 4501.5, were the defendant gassed 3 separate prisonguards. The defendant argued that this consecutive provision was trumpedby section 667, subdivision (c)(6), and that if the offense occurred on thesame occasion, then concurrent sentences can be imposed. However thisconstruction would yield a lesser sentence, and the purpose of the ThreeStrike Law was to impose greater sentences for recidivists (People v.Davis (1997) 15 Cal.4th 1096, 1099); as a result the trial court did notabuse its discretion when it imposed the 3-counts of gassing consecutive toeach other.

34. PROPOSITION 47 SECTION 1170.18

1. People v. Chaney REVIEW GRANTED; FORMERLY AT: (2014) 231Cal.App.4th 1391, the Third Appellate District found that where thedefendant filed a petition to modify his Three Strike sentence, undersection 1170.126, subdivision (f). He contended that the newly createddefinition of danger to public safety, as defined in the newly passedProposition 47, should apply to his case. That provision reads,"unreasonable risk of public safety, he sought to have the definition of "anunreasonable risk of danger to public safety" means an "unreasonable riskthat the petitioner will commit a new violent felony within the meaning ofclause (iv) of subparagraph (C) of paragraph (2) of subdivision (e) of

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section 667. (§ 1170.18, subd. (c)." The Court of Appeal found that thisnew definition does not apply retroactively, as it does not per se effectappellant's sentence. (See People v. Brown (2012) 54 Cal.4th 314, 319-325.)

2. People v. Valencia REVIEW GRANTED; FORMERLY AT: (2014) 232Cal.App.4th 514, the Fifth Appellate District held that section 1170.18,subdivision (a), a provision of Proposition 47 by which a person currentlyserving a felony sentence for an offense that is now a misdemeanor maypetition for a recall of that sentence and request resentencing. However,the trial court denied this Three-Strike offender's sentence modificationsince there is nothing in Proposition 47 that permits the modification orresentencing provisions of Proposition 36, the Three Strikes Reform Act,to be changed. Appellant had argued that the new definition of"unreasonable risk of public safety," codified in Proposition 47 in section1170.18, subdivision (c), which reads "an unreasonable risk of danger topublic safety" means an "unreasonable risk that the petitioner will commita new violent felony within the meaning of clause (iv) of subparagraph (C)of paragraph (2) of subdivision (e) of section 667, does not apply to aperson, like the defendant, who comes under the provisions of theProposition 36, section 1170.126; therefore, the trial court did not abuse itsdiscretion in failing to resentence him applying the new definition of"unreasonable risk to public safety."

3. People v. Aparicio REVIEW GRANTED; FORMERLY AT: (2015) 232Cal.App.4th 1065, the Fourth Appellate District, Division 1 held, onrehearing, that the court of appeal uses an abuse of discretion standardapplies when reviewing an appeal from a trial court's denial of a petitionunder Proposition 36, section 1170.126, when the trial court deniedpetitioner's resentencing based on the trial court's finding that release ofthe petitioner would present an unreasonable risk of danger to publicsafety. (§ 1170.126, subd. (f).) Petitioner had a very long, and violent,prior history of crime, but recently he had obtained his GED, participatedin vocational programs and began Alcoholics and Narcotics Anonymous. This court held that it was not going to determine whether the newdefinition of "unreasonable risk of danger to public safety," as defined inProposition 47, applies retroactively to cases coming under Proposition 36,the Three-Strikes Reform Act. That issue has been discussed in People v.Chaney REVIEW GRANTED; FORMERLY AT: (2014) 231 Cal.App.4th1391, and People v. Valencia REVIEW GRANTED; FORMERLY AT:(2014) 232 Cal.App.4th 514. This court held that the petitioner can file awrit in the superior court under section 1170.18, Proposition 47, todetermine if the definition of "unreasonable risk of danger to thecommunity," as applied to Proposition 36, should be given the meaning asdefined in Proposition 47, or whether it did not apply retroactively.

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4. People v. Lynall (2015) 233 Cal.App.4th 1102, the Sixth AppellateDistrict held that, in a companion case to People v. Rivera (2015) 233Cal.App.4th 1085, the Sixth Appellate District held that where thedefendant was charged with felony drug possession under Health andSafety Code section 11377, and that charge was reduced to a misdemeanorfollowing passage of Proposition 47, the defendant’s appeal from hisensuing misdemeanor conviction fell within the jurisdiction of the court ofappeal, not the superior court appellate division, because the caseoriginated as a felony.

5. People v. Rivera (2015) 233 Cal.App.4th 1085, the Sixth AppellateDistrict, in a companion case to People v. Lynall (2015) 233 Cal.App.4th1102, held that the Court of Appeal, and not the appellate division ofsuperior court, has jurisdiction over an appeal from a case in which thedefendant was originally convicted of a felony, but the offense was laterdetermined to be a misdemeanor under Proposition 47, or the defendantwas resentenced as a misdemeanant under Proposition 47. Nothing inProposition 47 alters the existing rules of appellate jurisdiction, People v.Nickerson (2005) 128 Cal.App.4th 33, 36; Cal. Const., art. VI, sec. 11), soif a defendant is charged with at least one felony in an information, anindictment, or in a complaint that has been certified to the superior courtunder section 859a, it is a felony case, (see § 691; People v. Feyrer (2010)48 Cal.4th 426, 438-439) and appellate jurisdiction properly lies with courtof appeal.

6. People v. Davis (2015) 234 Cal.App.4th 1001, the First Appellate District,Division 2 held that When a trial court declines to grant an inmate’spetition for resentencing under the Three Strikes Reform Act on theground that this would pose an unreasonable risk of danger to publicsafety, (§ 1170.126, subdivision (f)), that decision should be upheld onappeal unless the reviewing court is able to conclude that the decisionqualifies as an abuse of the considerable discretion granted by the act. Thetrial court did not abuse its discretion in making an "unreasonable risk"finding based on the defendant’s continued denial that he committed thethird-strike offense, his hostile attitude toward authority and society, andhis lack of post-release plans. Additionally the more restrictive definitionof "unreasonable risk" in Proposition 47 under section 1170.18,subdivision (c), did not narrow the definition of the term for purposes ofthe Three Strikes Reform Act.

7. People v. Sledge REVIEW GRANTED; FORMERLY AT: (2015) 235Cal.App.4th 1191, the Fourth Appellate District, Division 3 held that indenying resentencing due to the fact that the court found the defendantposed "a substantial risk to public safety" within the meaning of section1170.126, subdivision (f), the trial court was entitled to consider allrelevant evidence, including evidence that defendant used a firearm during

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the commission of a past crime, even though no firearm enhancement wasimposed, since the court heard the facts at the trial, and was entitled toconsider witness statements in a presentence report. (§ 1170.126, subd.(g)(3).) The alleged error of the trial court in relying on facts notsupported by the record, with respect to resentencing motion, washarmless where it was undisputed that defendant had a history of heavydrug use, criminal violence and mental illness. Additionally, the trial courtfound that the definition of "unreasonable risk of danger to public safety,"spelled out in Proposition 47, section 1170.18, subdivision (c), whichpermits resentencing of certain defendants previously convicted of feloniesthat have been reduced to misdemeanors by that initiative, does not applyto resentencing petitions brought by three-strikes defendants under section1170.126.

8. People v. Lopez REVIEW GRANT AND HOLD; FORMERLY AT:(2015) 236 Cal.App.4th 518, the Sixth Appellate District held that the trialcourt did not err in denying the petitioner a modification of his Three-Strike sentence within the meaning of section 1170.126. The Court ofAppeal ruled that he is not entitled to a jury trial, pursuant to Apprendi v.New Jersey (2000) 530 U.S. 466, on the issue of whether suchresentencing would create "an unreasonable risk of danger to publicsafety." (§ 1170.126, subd. (f); People v. Superior Court (Kaulick) (2013)215 Cal.App.4th 1279, 1302-1303.) Trial court did not abuse itsdiscretion in finding that petitioner was unreasonably dangerous given hislong history of criminal violence. Petitioner’s lack of recent violence in theenvironment of a high-security prison did not compel the conclusion thathe would not return to a life of criminal violence once released. Finally,Proposition 47, section 1170.18, which permits certain felons to beresentenced as misdemeanants absent an "unreasonable risk of danger topublic safety," as that phrase is narrowly defined by that proposition, didnot alter the broader definition of the phrase as used in Proposition 36.

9. T.W. v. Superior Court (2015) 236 Cal.App.4th 646, the First AppellateDistrict, Division 1 held that the provisions of Proposition 47, section1170.18, subdivision (a), which reduces a number of felonies tomisdemeanors and applies retroactively, is applicable to a negotiateddisposition. Here the minor admitted that he violated section 496(receiving stolen property, and the value of the property was less than$950.00). As part of the plea negotiation, the alleged violation of section211 (second degree robbery), was dismissed. The Court of Appeal foundthat section 1170.18, subdivision (a) provides unambiguously that "Aperson currently serving a sentence for a conviction, "whether by trial orplea," of a felony or felonies who would have been guilty of amisdemeanor under the act that added this section had this act been ineffect at the time of the offense may petition for a recall of sentence before

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the trial court that entered the judgment of conviction ... to requestresentencing. Since an appeal is not an adequate remedy due to the timeappellant has already served, the writ of mandate is granted in the firstinstance. (Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 1761,177-180.) The matter was transferred back to the trial court for adetermination of whether appellant poses an "unreasonable risk of dangerto public safety. (§ 1170.18, subd. (b).)

10. People v. Shabazz (2015) 237 Cal.App.4th 303, the Second AppellateDistrict, Division 5 held that Court of appeal may not, on direct appealfrom a felony conviction, reduce those convictions to misdemeanors basedupon a retroactive application of Proposition 47. Here, the defendant hascompleted his sentence for the convictions for section 496 and Health andSafety Code section 11377. The Court of Appeal found that since he hascompleted his sentence for those offenses, he must file an "application"under subdivisions (f)-(h) of section 1170.18. The Court of Appeal alsofound that In re Estrada (1965) 63 Cal.2d 740, does not apply in thissituation since the current matter is "not yet final." Proposition 47 doesnot have a specific savings clause designating prospective or retroactiveapplication of the act. Therefore, based on legislative or the voter's intent,the act does not apply retroactively to offenses that are final, and as aresult they cannot be reduced to misdemeanors as a part of this directappeal.

11. People v. Hickman REVIEW GRANTED; FORMERLY AT: (2015) 237Cal.App.4th 984, the Second Appellate District, Division 6 held that thetrial court did not abuse its discretion in determining under Proposition 47,section 1170.18, subdivision (d), to order one year of supervised parolewithout consideration of presentence custody credits, where defendant’shistory of parole violations supported trial judge’s conclusion that heneeded supervision. Proposition 47 allows the trial court to imposesupervision without consideration of presentence custody credits, whichwould not be the case in sentencing a non-Proposition 47 defendant, socalled "Sosa" credits, (In re Sosa (1980) 102 Cal.App.3d 1002 [excesscustody credits, must be deducted from the supervised parole period.])does not violate constitutional right to equal protection. Rehabilitation ofProposition 47 defendants as a class is a rational objective, and suchdefendants must accept the burdens of the initiative along with the benefitsof having misdemeanor rather than felony convictions.

12. People v. Contreras (2015) 237 Cal.App.4th 868, the Sixth AppellateDistrict held that the defendant’s claim that he was entitled to have hisfelony offenses reduced to misdemeanors under Proposition 47, which wasenacted while his appeal was still pending, was not properly reviewedbefore this court because it related to matters that occurred after judgment;appellant filed his Proposition 47 petition 8 months after he was granted

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probation and therefore, it was not included in the appellate record andwas the subject of a separate appeal.

13. People v. Morales REVIEW GRANTED; FORMERLY AT: (2015) 238Cal.App.4th 42, the Fourth Appellate District, Division 3 held that thedefendant, who was on postrelease community supervision (PRCS) for aperiod of three years from August 2014, when he filed his petition inNovember 2014, to have his felony conviction reduced to a misdemeanorunder Proposition 47, was "currently serving a sentence" for purposes ofsection 1170.18, subdivision (d). Said provision permits the court toimpose a one-year parole term on any such defendant upon resentencing. A defendant resentenced to a reduced term pursuant to Proposition 47 isentitled to have excess custody time credited against his parole term orfines, based on the so called "Sosa" credits. (In re Sosa (1980) 102Cal.App.3d 1002 [excess custody credits, must be deducted from thesupervised parole period.]) This opinion came to the oppositionconclusion from the Second Appellate District, Division 6 opinion inPeople v. Hickman (2015) Cal.App.4th , reported on June 18, 2015, in2015 Los Angeles Daily Journal 6702.

14. People v. Lopez (2015) REVIEW GRANT; FORMERLY AT: 238Cal.App.4th 177, the Sixth Appellate District held that a defendant seekingresentencing under Proposition 47, Penal Code section 1170.18,subdivision (a), must do so by separate petition in the trial court where theconviction occurred, rather than as part of an appeal from the originalconviction and sentence. A section 1170.18 petition must be filed oncethe judgment is final and jurisdiction over the cause has been returned tothe trial court. This court declined to determine appellant's eligibility inthe first instance even though it appears that appellant is ineligible forresentencing due to a prior conviction for a violation of section 288,subdivision (b)(1), a "super strike," within the meaning of section 667,subdivision (e)(2)(C)(4).

15. People v. Awad (2015) 238 Cal.App.4th 215, the Fourth AppellateDistrict, Division 3, held that where the defendant seeks resentencingunder Proposition 47, section 1170,18, subdivision (a), whilesimultaneously appealing the judgment of which the original sentence is apart, the court of appeal has discretion to remand to the trial court for thelimited express purpose of determining within a specified time frame thedefendant’s Proposition 47 petition to recall the sentence. Section 1260authorizes appellate courts to direct a limited remand to the trial court asamong the many available remedies in reviewing criminal appeals. (SeePeople v. Barton (2004) 34 Cal.4th 798, 818-819.) Numerous otherinstances establish appellate courts have engaged in limited remands tothe trial court during he pendency of an appeal for carefully circumscribed

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purposes. (See Cal. Rules of Court, rule 8.155(c)(2); Cal. Rules of Court,rule 8.244(d); Cal. Rules of Court, rule 8.252(c).)

16. People v. Dehoyos REVIEW GRANTED; FORMERLY AT: (2015) 238Cal.App.4th 363, the Fourth Appellate District, Division 1, held that wherethe defendant seeking resentencing under Proposition 47, and his appealfrom the conviction for Health and Safety Code section 11377, subdivision(a) is still on appeal, this court found that the Court of Appeal cannotresolve the matter, but must do so by petitioning the trial court undersection 1170.18, subdivision (a), rather than on appeal of the underlyingconviction in spite of the fact that it is not final within the meaning of In reEstrada (1965) 63 Cal.2d 740.

17. Alejandro N. v. Superior Court (2015) 238 Cal.App.4th 1209, the FourthAppellate District, Division 1 held that the trial court erred in failing to"reclassify" the minor's felonies to misdemeanors when it considered hisProposition 47 petition, under Penal Code section 1170.18. The juvenilecourt did reduce the amount of time that the minor could spend in custodyto the time that an adult could serve based on Welfare and InstitutionsCode section 726. However, it declined to "reclassify" the offenses fromfelonies to misdemeanors since a minor is not "convicted" of an offense. The Court of Appeal found that since the minor is subject to the same"offenses" pursuant to Welfare and Institutions Code section 602, he wastherefore subject to "reclassification." Additionally, the Court of Appealfound that since the offenses were now misdemeanors, the order for theDNA sample must be removed from the states data base. Furthermore, ifthe fine is higher based on the felony, it must also be reduced tomisdemeanor levels.

18. People v. Pinon REVIEW GRANTED; FORMERLY AT: (2015) 238Cal.App.4th 1232, the Fourth Appellate District, Division 3 found thatwhere the defendant initially pleaded guilty to a felony drug possessionoffense, and a misdemeanor for possession of drug paraphernalia in 2011,and sentenced to a state prison term followed by post-release communitysupervision (PRCS). After the passage of Proposition 47, he thensuccessfully petitioned for resentencing under Penal Code section 1170.18,subdivisions (a) or (f). He was subject to a term of parole underProposition 47, pursuant to Penal Code section 1170.18, subdivision (e),but it was error for trial court to impose a parole term longer than the termof PRCS that was previously imposed. The fines which were imposedwere not unauthorized as they were the same for the felony as to amisdemeanor, therefore they were not reduced, and in any event, sincethere was no objection the issue was waived. Furthermore, the Court ofAppeal found that since the drug offense was reduced to a misdemeanorfor all purposes, the defendant was no longer required to register as a drug

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offender under Health and Safety Code section 11590, and thatrequirement was stricken.

19. People v. Diaz (2015) 238 Cal.App.4th 1323, the Second AppellateDistrict, Division 4 held that appellant’s sentence was enhanced based on aprior prison term enhancement within the meaning of section 667.5,subdivision (b) for for "petty theft with a prior." While this appeal on thiscase was pending, Proposition 47 was passed by the voters, and the pettytheft with a prior could be redesignated as a misdemeanor for all purposes. The appeals court will not strike the enhancement, finding that In reEstrada (1965) 63 Cal.2d 740 did not apply since the prior was from 2009,was final. Therefore, the defendant must file an application in the superiorcourt in San Bernardino to gain a redesignation of the offense undersection 1170.18.

20. People v. Delapena REVIEW GRANTED; FORMERLY AT: (2015) 238Cal.App.4th 1414, the Sixth Appellate District held that Proposition 47’sreduced penalty provisions are not retroactive, and that In re Estrada(1965) 63 Cal.2d 740, does not apply. Furthermore, the remedy is for thedefendant to file a petition within the meaning of section 1170.18.

21. People v. Perez (2015) REVIEW GRANTED; FORMERLY AT: 239Cal.App.4th 24, the Third Appellate District held that when a defendantwillfully fails to appear (FTA) after being released on his ownrecognizance, it is a felony where the offense charged is a felony; andwhere the offense is charged as a misdemeanor, the FTA is amisdemeanor. Here, the defendant was charged with a violation of Healthand Safety Code section 11377, subdivision (a), originally a felony. However, with the passage of Proposition 47, it can become amisdemeanor. However, even though the underlying charge was or can bereduced to a misdemeanor, here, due to the passage of Proposition 47, itdoes not result in the FTA also being reduced to a misdemeanor. (SeePeople v. Walker (2002) 29 Cal.4th 577, 583; see also In re Watford(2010) 186 Cal.App.4th 684, 686-687 [the status rule].)

22. People v. McCoy REVIEW GRANTED; FORMERY AT: (2015) 239Cal.App.4th 431, the Second Appellate District, Division 6 held that, in asimilar opinion to their previous opinion in People v. Hickman (2015) 237Cal.App.4th 984, that the defendant whose former felony conviction wasreduced to a misdemeanor under Proposition 47, resulting in a sentence ofless than the time he had already served, was not entitled to apply "excesscustody credits" (Sosa credits), towards the "parole term" required byProposition 47 or toward his restitution fine. This ruling is contrary toPeople v. Morales (2015) 238 Cal.App.4th 42.

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23. People v. Eandi REVIEW GRANTED; FORMERLY AT: (2015) 239 Cal.App.4th 801, the Third Appellate District held that Proposition 47,section 1170.18, does not authorize a trial court to reduce a charge offailure to appear (FTA) on a felony charge, which is a violation of section1320, subdivision (b), to one of FTA on a misdemeanor charge inviolation of section 1320, subdivision (a), where the underlying chargewas a felony as of the date of the nonappearance. However, on remand tothe trial court, because a violation of section 1320, subdivision (b) is a"wobbler," the trial court has discretion to reduce it to a misdemeanorunder section 17, subdivision (b).

24. People v. Sherow (2015) 239 Cal.App.4th 875, the Fourth AppellateDistrict, Division 1 held that the burden is on the defendant, who soughtresentencing on multiple theft-related felony counts under Proposition 47,section 1170.18, to establish that each of the counts on which he soughtresentencing involved no more than $950. On a proper showing thedefendant may be able to show eligibility on either counts 1 or 2, or both;the petition is denied without prejudice and at that time he can at leastshow the items that were taken.

25. People v. Segura (2015) 239 Cal.App.4th 1282, the Fourth AppellateDistrict, Division 3 held that Proposition 47, section 1170.18, does notapply to convictions for conspiracy, even where the target offense is amisdemeanor to which Proposition 47 does apply.

26. People v. Sellner (2015) 240 Cal.App.4th 699, the Second AppellateDistrict, Division 6 held that the trial court lawfully imposed a two-yearsentence on the defendant where she was originally sentenced to eightmonths, to be served consecutive to three-year principal term sentenceimposed in another case, where the offense for which the three-year termwas imposed had been reduced to a misdemeanor under Proposition 47,and there was no increase in the aggregate of the two terms.

27. People v. Scarbrough (2015) 240 Cal.App.4th 916, the Third AppellateDistrict held that the trial court lacks jurisdiction to entertain resentencingunder section 1170.18, subdivision (a) or subdivision (d), Proposition 47,while the defendant’s felony conviction is pending on appeal.

28. People v. Armogeda (2015) 240 Cal.App.4th 1039, the Fourth AppellateDistrict, Division 3 held that the defendant, who was on post-releasecommunity supervision when he obtained a reduction of his convictionfrom a felony to a misdemeanor under Proposition 47, was subject toimposition of parole and to a restitution fine and parole revocation fine,but was entitled to have his excess custody days (SOSA credits) creditedagainst his parole time and eligible fines. This case is consistent withPeople v. Morales REVIEW GRANTED; FORMERLY AT: (2015) 238

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Cal.App.4th 42, and is contrary to People v. McCoy REVIEWGRANTED; FORMERLY AT: (2015) 239 Cal.App.4th 431 and People v.Hickman REVIEW GRANTED; FORMERLY AT: (2015) 237Cal.App.4th 984, which are both from Second District, Division 6.

29. People v. Rivas-Colon (2015) 241 Cal.App.4th 444, the First AppellateDistrict, Division 5, held that the burden of proof on the defendant's rightto resentencing under Proposition 47, section 1170.18, is on the defendant,who is not entitled to a jury trial on issues raised by his petition. One ofthe issues was whether the value of the property was over $950, andwhether the court could consider the police report which indicated that theamount was over $950, and store receipt to determine the issue. The cafound that you could. The ca relied in part on People v. Sherow (2015) 239Cal.App.4th 875, 877-878.) Additionally, the defendant was not entitledto a jury trial under Apprendi and Blakely, to determine the value of theproperty.

30. People v. Grayson (2015) 241 Cal.App.4th 454, the Second AppellateDistrict, Division 6 held that the trial court did not err in denying thedefendant's Proposition 47 petition. The Court of Appeal found that theoffense of section 484e, subdivision (d), which defines as "grand theft" theunauthorized possession of access card account information. Becausesection 484e, subdivision (d) does not require that the victims actually bedefrauded or suffer a monetary loss, it falls outside the scope ofProposition 47.

31. People v. Buycks REVIEW GRANTED; FORMERLY AT; (2015) 241Cal.App.4th 519, the Second Appellate District, Division 8 held thatwhere the defendant committed a possession drug offense in the first case,and then while out on bail committed two additional felonies, subjectinghimself to a violation of section 12022.1, but after the passage ofProposition 47,the first drug offense was reduced to a misdemeanor, and it"shall be considered a misdemeanor for all purposes," with exceptions notapplicable to defendant’s case, the trial court was precluded fromreimposing the on-bail enhancement in a new case after felony in first casehad been reduced to a misdemeanor. Because defendant was subject to afull resentencing in his second case, the court was required to evaluate thecircumstances as they existed then, and by that time defendant’s priorfelony had been reduced to a misdemeanor. Therefore the 2-year on-bailenhancement pursuant to section 12022.1, is stricken.

32. People v. Page REVIEW GRANTED; FORMERLY AT: (2015) 241Cal.App.4th 714, the Fourth Appellate District, Division 2 held that thetrial court did not err in denying appellant's resentencing under Proposition47, section 1170.18, for a violation of Vehicle Code section 10851,subdivision (a). The court found that since said section remained a

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"wobbler" following enactment of Proposition 47, a defendant whosuffered a felony conviction under Vehicle Code section 10851,subdivision (a), is not entitled to resentencing under that initiative.

33. People v. Cuen REVIEW GRANTED; FORMERLY AT: (2015) 241Cal.App.4th 1227, the Fourth Appellate District, Division 3 held that thetheft of access card information in violation of section 484e, subdivision(d) is not one of the offenses for which a convicted felon can obtainmisdemeanor resentencing under Proposition 47. The defendant hadargued that the theft of the access card was similar to uttering fictitiousinstruments and forged checks, and that the amount was less than $950,then the court should have applied section 490.2, and reduced the matter toa misdemeanor.

34. People v. Hoffman (2015) 241 Cal.App.4th 1304, the Second AppellateDistrict, Division 6 held that the trial court erred in denying thedefendant's petition to have her forgery charges (§ 273), reduced tomisdemeanors within the meaning of section 1170.18. Appellant hadforged numerous checks that she stole from her parents. Appellant pled to7 counts and other counts were dismissed, but a waiver pursuant to Peoplev. Harvey (1979) 25 Cal.3d 754, was taken, for "purposes of sentence." The trial court aggregated the amount of the checks, and based on theaggregation, the amount was over $950, and that she violated the "spirit"of Proposition 47. The Court of Appeal found that section 473 does notallow the court to aggregate check values. Furthermore, appellant did nothave any prior record, and was not an unreasonable risk to public safety. The trial court cannot refuse to impose the provisions of Proposition 47based on the "spirit" of the law; appellant meets all of the legal criteria,and as a result, each of the forgery counts must be reduced tomisdemeanors.

35. People v. Garness REVIEW GRANTED; FORMERLY AT: (2015) 241Cal.App.4th 1370, the Fourth Appellate District, Division 2 held thatwhere the defendant pled guilty to a violation of section 496d (receiving astolen vehicle), the trial court did not err in denying the petition forresentencing given the fact that said section is not listed as one of thesections that qualify for a reduction in sentence. The ca also rejected theidea that the similarities between section 496 and 496d, that the absence ofany explicit grant of relief to those convicted under section 496d was anomission or unintentional ambiguity in Proposition 47.

36. People v. Gonzales REVIEW GRANTED; FORMERLY AT: (2015) 242Cal.App.4th 35, the Fourth Appellate District, Division 1 held that second-degree commercial burglary in violation of section 459 is not "shoplifting"pursuant to section 459.5, under Proposition 47; therefore a defendantconvicted of that type of burglary is not entitled to be resentenced as a

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misdemeanant under that initiative. The defendant went into a Bank ofAmerica twice during regular business hours and cashed 2 checks for $125each, payable to the defendant and signed with his grandmother’s name. The defendant's grandmother indicated that she did not sign the checks,nor did she give the defendant permission to do so. Appellant pled to onecount of second degree burglary, and the forgery count was dismissed. The Court of Appeal found that several theft offenses are listed inProposition 47, but commercial burglary was not one of them, whichindicates its intent to exclude it from the resentencing provisions. TheCourt of Appeal also indicated there was no “theft” from the bank.

37. People v. Morris (2015) 242 Cal.App.4th 94, the Sixth Appellate Districtheld that a defendant who is resentenced as misdemeanant underProposition 47, section 1170.18, subdivision (a), was entitled to have hisexcess custody credits applied to satisfy the restitution fine. At the time ofthe offense, section 2900.5, subdivision (a) applied to restitution fines andheld that in any case where the court has imposed both a prison or jail termof imprisonment a fine be applied to the term of imprisonment imposed,and thereafter the remaining days, if any, shall be applied to the fine on aproportional basis, including, but not limited to, base fines and restitutionfines. (People v. Robinson (2012) 209 Cal.App.4th, 401, 406.)

38. People v. Romanowski REVIEW GRANTED; FORMERLY AT: (2015)242 Cal.App.4th 151, the Second Appellate District, Division 8 held thatProposition 47, section 1170.18, reduced the offense of theft of access cardinformation under section 484e, subdivision (d) to a misdemeanorprovided the theft involved property valued at less than $950. This is acontrary ruling to those in People v. Grayson (2015) 241 Cal.App.4th 454,and People v. Cuen (2015) 241 Cal.App.4th 1227.

39. Harris v. Superior Court REVIEW GRANTED: FORMERLY AT: (2015) 242 Cal.App.4th 244, the Second District, Division 5 held that thetrial court did not err in denying the defendant's writ of mandate to enforcethe provisions of Proposition 47, when the defendant and the prosecutionhad entered into a plea bargain at the time of the original plea. This courtheld that, contrary to the decision in T.W. v. Superior Court (2015) 236Cal.App.4th 646, that the reduction of a plea-bargained felony charge to amisdemeanor under Proposition 47 deprives the prosecution of the benefitof the bargain of its plea agreement. As a result, the prosecutors areentitled to withdraw from such a plea and reinstate the previouslydismissed charges, thus returning the parties to the status quo ante. Thedissent in this matter, by Justice Mosk, sets forth the rationale for why thechange in the law applies to negotiated dispositions and why the petitionshould have been granted.

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40. People v. Acosta (2015) 242 Cal.App.4th 521, the Second AppellateDistrict, Division 5 held that attempted car burglary is not among theoffenses which are eligible to be reduced to a misdemeanors under section1170.18. Proposition 47 does not, by reducing theft of property valued atno more than $950 to a misdemeanor while attempted burglary of avehicle of same value remains a "wobbler," violate equal protection. Theelectorate could rationally have concluded that the breaking-and-enteringaspect of burglary merits greater punishment, or could have concluded thatallowing prosecutors to decide whether to charge attempted burglary as afelony or a misdemeanor was valid policy.

41. People v. Peacock REVIEW GRANTED; FORMERLY AT: (2015) 242Cal.App.4th 708, the Fourth Appellate District, Division 2, held that thetrial court erred when it granted petitioner's petition to reclassify hisreceiving stolen property offense, within the meaning of section 496d, amisdemeanor under Proposition 47, section 1170.18, subdivision (a). TheCourt of Appeal found that the receipt of a stolen vehicle in violation ofsection 496d is not one of the crimes that have been reduced tomisdemeanors by Proposition 47, regardless of the value of the vehicle.Proposition 47, by reducing other theft-related offenses to misdemeanorswhen the value of the stolen property does not exceed $950, withoutgranting similar treatment to violations of section 496d, does not violateEqual Protection Clause. There are rational distinctions between section496d and other offenses, including the potential for increasing the value ofthe stolen vehicle by selling off parts and the particular inconvenience ofsuch crime to the victims.

42. People v. Amaya (2015) 242 Cal.App.4th 972, the Second AppellateDistrict, Division 2 held that an oral motion to reduce a felony convictionto a misdemeanor under Proposition 47, section 1170.18, subdivision (a),meets the statutory requirement that such request be made by a "petition."

43. In re J.L. (2015) 242 Cal.App.4th 1108, the Second Appellate District,Division 5 held that a theft from a school locker was not a theft from a"commercial establishment," and as a result the defendant was not eligiblefor a reduction of the offense from burglary to shoplifting underProposition 47, section 1170.18, subdivision (a). The opinion goes intowhat a common and realistic definition is of a "commercialestablishment."

44. People v. King REVIEW GRANTED: FORMERLY AT: (2015) 242Cal.App.4th 1312, the Second Appellate District, Division 2 held thatgrand theft in the form of unauthorized use of another’s bank access card,within the meaning of section 484e, subdivision (d), is not an offensesubject to reduction to a misdemeanor pursuant to Proposition 47. This

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case is contrary to the opinion by Second Appellate District, Division 8 inPeople v. Romanowski (2015) 242 Cal.App.4th 151.

45. People v. Gomez (2015) 243 Cal.App.4th 319, the Fourth AppellateDistrict, Division 2 held that where the defendant had previously beenconvicted of a felony taking a vehicle within the meaning of Vehicle Codesection 10851, he is entitled to resentencing as a misdemeanor underProposition 47, section 1170.18, if he proves that the value of the vehiclewas less than $950. (People v. Sherow (2015) 239 Cal.App.4th 875, 877.)Here the defendant did not do that in the trial court, and the value cannotbe first raised in the Court of Appeal, and as a result, the violation cannotbe reduced at this time.

46. People v. Marks (2015) 243 Cal.App.4th 331, the Fourth AppellateDistrict, Division 8 held that the trial court did not err in denying hispetition to reclassify his prior convictions for violations of Health andSafety Code section 11350, as they were alleged in the current case aspriors within the meaning of section 667.5, subdivision (b). A defendantseeking to have his prior convictions reduced to misdemeanors underProposition 47 must file a petition for resentencing in the court in whichhe was convicted, not in the court where he suffered the currentconviction, which in this case is a violation of section 273.5. (See §1170.18, subd. (f).) There is no provision that would allow defendant toseek such relief as part of the sentencing proceeding on a new conviction.

47. People v. Thompson REVIEW GRANTED; FORMERLY AT: (2015) 243Cal.App.4th 413, the Second Appellate District, Division 4 held that thetrial court erred in denying appellant's petition, under Proposition 47,section 1170.18, for the violation of section 484e, subdivision (d), whichdefines the acquisition and retention of access card account information as"grand theft." It is in all instances a misdemeanor under Proposition 47. This opinion is contrary to the opinions in People v. Cuen (2015) 241Cal.App.4th 1227, and People v. Grayson (2015) 241 Cal.App.4th 454. Additionally, the Court of Appeal held that the value of the access carditself is slight, and the account information only has slight value, in that itis only valuable if it is used. Additionally, section 484g prohibits the useof an access card or access card account information with an intent todefraud and punishes such use as grand theft if the value of the goods orservices received using the card exceeds $950 in any 6 month consecutiveperiod. Since the amount in question here was less than $950, he wouldhave only been punished as a misdemeanor under section 484g, and this isconsistent with the intent of Proposition 47.

48. People v. Haywood REVIEW GRANTED; FORMERLY AT: (2015) 243Cal.App.4th 515, the Third Appellate District held that the unlawful takingor driving of a vehicle in violation of Vehicle Code section 10851,

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subdivision (a) is not one of the offenses that is eligible for being reducedto a misdemeanor under Proposition 47, section 1170.18, subdivision (a).

49. People v. Ortiz (2016) 243 Cal.App.4th 854, the Sixth Appellate Districtheld that where the defendant was convicted of car theft under VehicleCode section 10851 may be eligible for Proposition 47 resentencing if heor she can show the stolen vehicle was valued at $950 or less, so that theoffense qualifies as a petty theft under section 490.2. This court agreeswith the decision in People v. Gomez REHEARING GRANTED;FORMERLY AT: (2015) 243 Cal.App.4th 319, and disagrees with thedecisions in People v. Haywood (2015) 243 Cal.App.4th 515, and Peoplev. Page (2015) 241 Cal.App.4th 714.

50. People v. Vargas (2016) 243 Cal.App.4th 1416, the Second AppellateDistrict, Division 8 held that the definition of "shoplifting" in Proposition47, section 1170.18, goes beyond the commonly understood lay definition.The defendant’s commercial burglary offense, which consisted of enteringa commercial establishment with the intent to use a forged check for lessthan Proposition 47’s $950 threshold, had to be reduced to a misdemeanorabsent a finding of unreasonable risk to public safety. This case comes outwith a contrary opinion from that taken in People v. Gonzales (2015) 242Cal.App.4th 35. Certainly, the lay person might understand “shoplifting”to mean entering a retail store during regular business hours with the intentto steal displayed merchandise. But that is not how the voters defined“shoplifting” in section 459.5; instead, they defined it as entering acommercial establishment during business hours with the “intent tocommit larceny.” Accepting Gonzales' narrow interpretation would requireus to rewrite the statute, which we cannot do. Section 459.5 redefinedcertain second degree burglaries, and the California Supreme Court hasheld an intent to commit theft by false pretense or a false promise withoutthe intent to perform will support a burglary conviction. (People v. Parson(2008) 44 Cal.4th 332, 354.)

51. People v. Orozco (2016) 244 Cal.App.4th 65, the Fourth AppellateDistrict, Division 1 held that Proposition 47 does not apply to crimes thatare not specifically enumerated in the law itself, and that includesunlawfully driving a vehicle of another without permission, Vehicle Codesection 10851, subdivision (a), and receiving a stolen vehicle within themeaning of section 496d. The holding here is consistent with People v.Page (2015) 241 Cal.App.4th 714, but for a different rationale, but iscontra to People v. Gomez (2015) 243 Cal.App.4th 319.

52. People v. Perkins (2016) 244 Cal.App.4th 129, the Fourth AppellateDistrict, Division 2 held that the trial court did not err in denyingappellant's petition under Proposition 47, section 1170.18 resentencing,who was convicted of, among other offenses, of receiving stolen property,

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grand theft of firearms, and burglary. The petitioner did not carry hisburden of proof to submit evidence of the value of the stolen property.(People v. Sherow (2015) 239 Cal.App.4th 875, 877; People v. Rivas-Colon (2015) 241 Cal.App.4th 444; People v. Page (2015) 241Cal.App.4th 714.) However, he is not barred from filing a new petitionand submitting the required evidence. Where the defendant’s resentencingpetition was filed using a form that erroneously omitted grand theft offirearms as an offense for which resentencing was possible, and trial thecourt did not rule on whether defendant was eligible for resentencing forsuch offenses, that issue could not be resolved on appeal, but the defendantwas entitled to file a new petition with respect to those offenses.

53. People v. Valenzuela (2016) 244 Cal.App.4th 692, the Fourth AppellateDistrict, Division 1 held that the trial court did not err in denyingappellant's request to reduce his possession offense, within the meaning ofHealth and Safety Code section 11377, subdivision (a), to a misdemeanorin this direct appeal. He can renew the petition in a separate petition in thesuperior court rather than an appeal from the underlying conviction.(People v. Shabazz (2015) 237 Cal.App.4th 303, 313.) Proposition 47does not mandate that a prior-prison-term enhancement (§ 667.5, subd.(b)), be stricken on the ground that the offense for which the prison termwas imposed was reduced to a misdemeanor under section 1170.18,subdivision (a), and there is no violation of equal protection.

54. People v. Nichols (2016) 244 Cal.App.4th 681, the Sixth AppellateDistrict held that Proposition 47, which generally reduces felony theftoffenses to misdemeanors when the value of the property is less than $950,does not apply to feloniously buying or receiving a stolen motor vehicle inviolation of section 496d since it is not specifically mentioned in section1170.18, subdivision (a). Additionally, there is no equal protectionviolation since a person who feloniously buys or receives a stolen motorvehicle is not similarly situated to a person who steals a vehicle of thesame value or who buys or receives other stolen property of the samevalue. (See People v. Peacock (2015) 242 Cal.App.4th 708, 712-713.)

55. People v. Triplett (2016) 244 Cal.App.4th 824, the Third AppellateDistrict held that In determining a defendant’s eligibility for resentencingunder Proposition 47, section 1170.18, the trial court may consider, inaddition to the record of conviction, any facts the parties stipulated to, aslong as such facts only augment and do not contradict or otherwise detractfrom the record of conviction. For purposes of Proposition 47, obtainingmoney by means of identity theft is "larceny." The parties stipulated thatas for the two burglary convictions in question, that the amount of eachcheck, that the defendant presented to both of the "commercialestablishments," checks not defendant's, which were less than $950 each. The offenses were not based on identity theft, but based on larceny. This

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case comes to the opposite conclusion as People v. Gonzales (2015) 242Cal.App.4th 35. Therefore, the defendant meets the requirement for areduction of the burglary convictions under section 1170.18, subdivision(a), and the matter is remanded to the trial court to resentence thedefendant on his convictions under the remaining provisions of section1170.18. The Court of Appeal also held that appellant's prior two priorprison term enhancements, under section 667.5, subdivision (b), were notsubject to a reduction, since they were felonies when they were imposed,and Proposition 47, does not have retroactive application. (People v.Rivera (2015) 233 Cal.App.4th 1085, 1100.)

56. People v. Ruff (2016) 244 Cal.App.4th 935, the Fifth Appellate Districtheld that the reduction of a felony conviction to a misdemeanor underProposition 47 does not affect a previously imposed prior-prison-termenhancement within the meaning of section 667.5, subdivision (b). Theinitiative does not operate retroactively in that manner. This holding issimilar to that in People v. Triplett (2016) 244 Cal.App.4th 824.

57. People v. Carrea (2016) 244 Cal.App.4th 966, the Fourth AppellateDistrict, Division 1 held that where the defendant obtained an orderreducing a prior conviction, resulting in a prison term, within the meaningof section 667.5, subdivision (b), to a misdemeanor under Proposition 47,section 1170.18, subdivision (a), was not entitled to have a subsequentprior-prison-term enhancement (based on the first conviction and imposedprior to Proposition 47's enactment) stricken. Proposition 47 does notprovide for retroactive redesignation, dismissal, or striking of final pre-Proposition 47 sentence enhancements based on prior convictions that aresubsequently reduced from felonies to misdemeanors. The Court ofAppeal also found that there was no equal protection violation.

58. People v. Gonzalez (2016) 244 Cal.App.4th 1058, the Fourth AppellateDistrict, Division 2 held that Proposition 47's resentencing provisions,section 1170.18, subdivision (a), apply to a conviction sustained under aplea agreement that included a dismissal of other felony counts. Thedefendant was not, in connection with resentencing petition, required toprove that the conduct underlying her felony conviction would not haveconstituted felony robbery and burglary, as originally charged. This case isin conflict with Harris v. Superior Court (2015) 242 Cal.App.4th 244, butwithout citing it is consistent with T.W. v. Superior Court (2015) 236Cal.App.4th 646. Additionally, this court distinguished People v. Collins(178) 21 Cal.3d 208 and People v. Blessing (1982) 129 Cal.App.3d 1026.

59. People v. Brown (2016) 244 Cal.App.4th 1170, the Fourth AppellateDistrict, Division 2 held that the defendant who pleaded guilty to aviolation of section 496, subdivision (a), as part of a plea bargain, whereother counts were dismissed, just prior to the passage of Proposition 47,

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was entitled to the benefit of Proposition 47, which retroactively reducedthe offense to a misdemeanor. This court relied in part on T.W. v. SuperiorCourt (2015) 236 Cal.App.4th 646, which indicated that the provisions ofProposition 47 apply to negotiated pleas. The court disagreed with Harrisv. Superior Court (2015) 242 Cal.App.4th 244, that Doe v. Harris (2013)57 Cal.4th 64 only applies to collateral consequences of a plea bargain,and not to bargained for terms of a plea bargain. Nothing in the initiativerequires defendants to prove that they would have been allowed to pleadguilty to a misdemeanor had Proposition 47 been in effect at the time. Theplea bargain included a provision that the defendant spend 2 years incounty jail, but with the passage of Proposition 47, the court reduced thesentence to 364 days. The plea bargain is not insulated from statutorychanges that result from changes in the law, such as the passage ofProposition 47. Additionally, because the defendant's conviction is for anoffense reclassified by Proposition 47, and there is no indication theproperty the defendant received was worth more that $950, and thedefendant satisfied her burden of demonstrating she was entitled toresentencing.

60. People v. Perry (2016) 244 Cal.App.4th 1251, the Second AppellateDistrict, Division 1 held that the defendant who pleaded no contest to agrand theft person, and a robbery was dismissed, as part of a pleaagreement was able to gain the benefit of the passage of Proposition 47,which retroactively reduced the offense to a misdemeanor, and was notsubject to reinstatement of the dismissed charges. This court relied in parton T.W. v. Superior Court (2015) 236 Cal.App.4th 646, which indicatedthat the provisions of Proposition 47 apply to negotiated pleas; that thewill of the voters would be frustrated if the prosecution was allowed toforce the defendant to withdraw his plea. The court disagreed with Harrisv. Superior Court (2015) 242 Cal.App.4th 244.

61. People v. Descano (2016) 245 Cal.App.4th 175, the First AppellateDistrict, Division 4 held that cultivating marijuana, in violation of Health& Safety Code section 11358, is not among the felonies eligible for areduction to a misdemeanor by Proposition 47, section 1170.18,subdivision (a) even when the cultivation is for personal use. The omissionof Health & Safety Code section 11358 violations from the list of felonieseligible for a reduction to misdemeanors does not violate the right to equalprotection because such violators are not similarly situated to those whocommit possessory offenses listed in the initiative. (See People v. Macias(1982) 137 Cal.App.3d 465, 473; see also People v. Sharp (2003) 112Cal.App.4th 1336, 1340-1342.)

62. People v. Bias (2016) 245 Cal.App.4th 302, the Fourth Appellate District,Division 2 held that the trial court erred in granting the defendant's petitionto reduce a second degree burglary, to the new offense of petty theft (§

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459.5), since he entered a bank with intent to commit identity theft (seePeople v. Barba (2012) 211 Cal.App.4th 214, 220), by using anotherperson’s personal identifying information in order to cash a forged check,written for less than $600, because such crime does not constituteshoplifting within the meaning of Proposition 47, section 1170.18,subdivision (a).

63. People v. Chen (2016) 245 Cal.App.4th 322, the Second AppellateDistrict, Division 8 held that the trial court erred in granting thedefendant's petition under Proposition 47, section 1170.18, subdivision (a)for the violation of second degree commercial burglary (§ 459), based onhaving entered the Department of Motor Vehicles building with intent tocommit perjury by falsely swearing that he did not receive a previousdriver’s license in another state and/or under another name. Essentially,the court found that he did not commit the burglary to commit a theft, andtherefore, it did not qualify for a reduction to a misdemeanor since it didnot fall into the category of a violation of section 459.5, and his crimecould not be redefined as "shoplifting" under Proposition 47.

64. People v. Rouse (2016) 245 Cal.App.4th 292, the Second AppellateDistrict, Division 8 held that Defendant was entitled to the assistance ofcounsel at the resentencing hearing on his petition under Proposition 47.Resentencing was a critical stage of the proceeding, although defendantwas not facing the possibility of an increased sentence. Defendant had theright to the assistance of a lawyer who could have argued for a lessersentence than that which the court imposed. “It is beyond dispute that,t]he Sixth Amendment safeguards to an accused who faces incarcerationthe right to counsel at all critical stages of the criminal process.? (Marshallv. Rodgers (2013) __ U.S. __ [133 S.Ct. 1446, 1449]; People v. Doolin(2009) 45 Cal.4th 390, 417 (Doolin) [“A criminal defendant is guaranteedthe right to the assistance of counsel by the Sixth Amendment to theUnited States Constitution and article I, section 15 of the CaliforniaConstitution.”].) Sentencing is a critical stage in the criminal processwithin the meaning of the Sixth Amendment. (Doolin, supra, 45 Cal.4th atp. 453; accord, Mempa v. Rhay (1967) 389 U.S. 128, 134-137.) Pursuantto People v. Superior Court (Kaulick) (2013) 215 Cal.App.4th 1279,section 1170.126 “does not provide for wholesale resentencing of eligiblepetitioners, it provides for a proceeding where the original sentence maybe modified downward. (See also Dillion v. United States (2010) 560 U.S.817, 825 [the defendant can get a reduction in sentence based on theintervening modification to the sentencing guidelines. It gives the courtthe power to reduce an otherwise final sentence].) The defendant still hasa right to counsel even where the Sixth Amendment is not implicated. Thedefendant waived his right to be personally present, but his right to bepresent did not constitute a separate right to counsel, as the right to counsel

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is self-executing as the defendant does not need to make a separate requestfor counsel.

65. People v. Root (2016) 245 Cal.App.4th 353, the Fourth Appellate District,Division 1 held that the trial court erred in denying the defendant's petitionunder Proposition 47, section 1170.18, subdivision (a) to reduce hisburglary convictions to misdemeanors. The defendant's entry into a bankto commit "theft" by false pretenses in amounts under $950 qualifies as"shoplifting" under section 459.5. This holding is consistent with Peoplev. Triplett (2016) 244 Cal.App.4th 824 and People v. Vargas (2016) 243Cal.App.4th 1416, and parts ways with People v. Gonzales (2015) 242Cal.App.4th 35.

66. People v. Williams (2016) 245 Cal.App.4th 458, the Second AppellateDistrict, Division 2 held that when a petitioner/defendant’s sentence for asubsequent felony is enhanced with a prior prison term under section667.5, subdivision (b),and when he later has the prior felony reduced to amisdemeanor under Proposition 47, section 1170.18, subdivision (a), thatredesignation does not operate retroactively so as to entitle defendant to beresentenced on the subsequent felony to eliminate the section 667.5,subdivision (b) enhancement. This holding is consistent with People v.Valenzuela (2016) 244 Cal.App.4th 692, People v. Ruff (2016) 244Cal.App.4th 935, and People v. Carrea (2016) 244 Cal.App.4th 966.

67. People v. Garcia (2016) Cal.App.4th , reported on March 9, 2016, in2016 Los Angeles Daily Journal 2315, the Sixth Appellate District heldthat the defendant who was placed on felony probation for simple drugpossession, was "sentenced" within the meaning of Proposition 47 and wastherefore eligible for resentencing. (See People v. Shabazz (2015) 237Cal.App.4th 303, 310 [discussing Proposition 47's mechanism forresentencing after being after being resentenced or placed on probation.])

68. People v. Franco (2016) Cal.App.4th , reported on March 16, 2016, in2016 Los Angeles Daily Journal 2496, the Second Appellate District,Division 7 held that the trial court erred in denying his petition forresentencing under Proposition 47, section 1170.18, as the motion wasmade orally. The Court of Appeal found that a petition does not need tobe in writing. For a person guilty of forgery relating to a check, bond, bankbill, note, cashier’s check, traveler’s check, or money order to be eligiblefor resentencing under Proposition 47, the stated value of the forgedinstrument must be less than $950.

69. People v. Valencia (2016) Cal.App.4th , reported on March 17, 2016,in 2016 Los Angeles Daily Journal 2530, the Third Appellate District heldthat where the defendant went into an AT&T store and purchased aprepaid phone for $249.74 with counterfeit $50 bills and later he admitted

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that the bills he tendered were counterfeit. The trial court erred in findingthat his act did not fall within Proposition 47, as the second degreeburglary conviction was eligible for resentencing under section 1170.18. The trial court erred by allowing section 459.5’s term for the offense,shoplifting, to govern the definition of the crime. While section 459.5 setsforth the new crime of shoplifting, it does not use that term to define thecriminal conduct that constitutes the offense. Rather than leaving the term“shoplifting” undefined or defining it by reference to the common meaningof that term, section 459.5 gives it a more technical, legal definition as asubset of commercial burglary, entry into a commercial establishmentduring regular business hours with the intent to commit or committinglarceny.

70. People v. Bush (2016) Cal.App.4th , reported on March 23, 2016, in2016 Los Angeles Daily Journal 2772, the Fourth Appellate District,Division 2 held that the trial court did not err in denying the defendant'spetition under Proposition 47, section 1170.18, subdivision (a), since hisconviction for theft from an elder (§ 368) is not specifically covered by theact. On the other hand the court found that he would be eligible forresentencing for his conviction for receiving stolen property (§ 496, subd.(a)), if the property received does not exceed $950; however since the trialcourt denied resentencing without making a factual determination as to thevalue, the matter was remanded for the court to make that determination. The court distinguished People v. Sherow (2015) 239 Cal.App.4th 875, asthe petition in this case was lost, and the record indicated that the value ofthe property was less than $950 because the property stolen that is subjectto reduction was a single identification card.

71. People v. Solis (2016) Cal.App.4th , reported on March 25, 2016, in2016 Los Angeles Daily Journal 2819, the Second Appellate District,Division 3 held that the trial court did not err in failing to reduce thedefendant's conviction for unlawfully taking or driving a vehicle inviolation of Vehicle Code section 10851, subdivision (a). The Court ofAppeal held that the offense, as a matter of law, is not eligible forresentencing under Proposition 47 as it is not an enumerated offensewithin Proposition 47. Review has already been granted on this issue, andI suspect that this will be a grant and hold behind People v. Page, formerlycited as: (2015) 241 Cal.App.4th 714.

72. People v. Fedalizo (2016) Cal.App.4th , reported on March 31, 2016,in 2016 Los Angeles Daily Journal 3093, the Second Appellate District,Division 7 held that absent evidence that defense counsel misrepresentedhis authority to appear for defendant and waive his presence, on hisProposition 47 resentencing hearing, the appellate court cannot presumethat counsel neglected to obtain defendant’s consent before proceeding ashis attorney, so the defendant’s later claim that he was denied right to

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represent himself and be present at the hearing, (see Faretta v. California(1975) 422 U.S. 806, 819; see also People v. Lewis and Oliver (2006) 39Cal.4th 970, 1001), was unavailing. Here, the defendant had entered into ano contest plea in his initial case to 4 counts of second degree burglary andone count of receiving stolen property and one count of possession ofburglary tools. The defendant was placed on 3 years probation. Subsequently he was charged with a single count of possession of acounterfeit seal. Appellant had represented himself during the plea onboth cases. The burglary counts, the receiving and the burglary tools werereduced to misdemeanors and the court resentenced him to 3 consecutiveterms of 364 days and the other counts were imposed concurrently. Thecourt denied the motion to resentence the defendant on the possession ofthe counterfeit seal.

73. People v. Davis (2016) Cal.App.4th , reported on April 1, 2016, in2016 Los Angeles Daily Journal 3121, the First Appellate District,Division 1 held that a probationer is "currently serving a sentence" forpurposes of Proposition 47, section 1170.18, and could only have his priorfelony conviction reduced to a misdemeanor by petitioning forresentencing under that measure, which by its terms left him subject to thesame firearms possession prohibition as if he were still a felon. He tried toescape from the firearms possession prohibition condition by arguing thathe should not be resentenced under section 1170.18, but under People v.Estrada (1965) 63 Cal.2d 740, but the court rejected that rationale.

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