caclr_header_template1 California Criminal Law Reporter

Recent Defense Victories

Arizona robbery prior could not be used for purposes of the three strikes law or Penal Code section 667, subd.(a) where the Arizona law did not contain the same elements as the California robbery law. (114) (848)
Because Arizona’s robbery statute does not require asportation of the stolen property (as California robbery statute does) the true finding regarding the Arizona prior was reversed for purposes of the three strikes law allegation and the five year serious felony prior.
People v. Sexton ____ Cal.App.5th ____, ____ Cal.Rptr.3d ____, 2019 D.A.R. 6603 (4th Dist. 2019) July 15, 2019 (D075380)
Consecutive sentences for domestic violence and aggravated assault based on the same course of conduct were improper. (824)
Penal Code section 654 prohibited consecutive sentences for count three (domestic violence) and count four (assault with force likely to cause great bodily injury) because both counts were predicated on the same course of conduct that had a single objective. The sentence on one count had to be stayed.
People v. Sexton ____ Cal.App.5th ____, ____ Cal.Rptr.3d ____, 2019 D.A.R. 6603 (4th Dist. 2019) July 15, 2019 (D075380)
Death sentence was vacated after a showing that a penalty phase witness (who later recanted) falsely testified that defendant had sexually assaulted her. (605) (940)
At the penalty phase of defendant’s capital case, the prosecution presented a witness who claimed that defendant had sexually assaulted her. After trial, the defense alleged in the habeas corpus petition that the witness falsely identified the defendant. Following an evidentiary hearing, the referee found the witness had testified falsely as she recanted her identification, and the descriptors given to police initially did not match defendant. Defendant was entitled to relief (death sentence vacated) given that material false evidence was presented at the penalty phase.
In re Rogers ____ Cal.5th ____, ____ Cal.Rptr.3d ____, 2019 D.A.R. 6567 (2019) July 15, 2019 (S084292)
Evidence did not support a finding of criminal threats under section 422 where the minor told a counselor that he intended to harm two unnamed students at school. (221)
The minor was found to have made criminal threats under Penal Code section 422 to his therapist outside of a counseling session. He threatened to harm two students at school. However, the evidence was insufficient to support the finding that he violated his probation on that basis. The fact that he didn’t provide the student’s names showed he could not intend for the counselor to communicate his threats to the students. And there was no evidence showing those students were in a sustained state of fear because they did not know about the remarks. These were merely angry statements made to a counselor in an effort to excuse the minor from going to school.
In re A.C. ____ Cal.App.5th ____, ____ Cal.Rptr.3d ____, 2019 D.A.R. 6373 (2nd Dist. 2019) July 09, 2019 (B292149)
The trial court abused its discretion by imposing a probation condition requiring urinalysis testing that required defendant to pay $25 per test. (810)
Defendant pled guilty to identify theft. The probation department recommended urinalysis testing that would cost defendant $25 per test, and the trial court ordered it. However, ordering the condition was an abuse of discretion as the record did not show defendant used drugs or alcohol.
People v. Wright ____ Cal.App.5th ____, ____ Cal.Rptr.3d ____, 2019 D.A.R. 6239 (3rd Dist. 2019) July 02, 2019 (C082729)
Resentencing was required where the court mistakenly believed it had to strike a strike in order to impose concurrent terms. (800)
Defendant was convicted of robbery, assault with a deadly weapon and resisting arrest. The court designated the robbery as the principal count. In deciding whether to impose concurrent or consecutive sentences on the remaining counts the court erroneously found that it would have to dismiss a strike in order to impose concurrent terms. The matter was remanded for resenstencing so that the court may consider concurrent terms depending upon whether the offenses were committed on the same occasion and arose from the same set of operative facts.
People v. Koback ____ Cal.App.5th ____, ____ Cal.Rptr.3d ____, 2019 D.A.R. 6055 (4th Dist. 2019) June 28, 2019 (E066674)