Articles Posted in New Criminal Case Law

People v. McCune (Cal. Ct. App., July 25, 2022, No. A163579) 2022 WL 2913888, at *1–4

Summary:McCune appealed from an order awarding victim restitution, claiming the court lost jurisdiction to order restitution when it terminated his probation early after a  change to the Penal Code that shortened his probationary term from five years to two. The Court of Appeal held that the trial court retained jurisdiction to determine and award victim restitution under Penal Code sections 1202.4 and 1202.461 irrespective of McCune’s probation status.

Facts:McCune pled no contest to felony hit and run involving injury and as part of his plea, McCune agreed to pay restitution to the victim. The court suspended imposition of sentence and placed McCune on five years’ probation. McCune was ordered to pay victim restitution in an amount to be determined by the court and probation officer. The  probation department filed and served notice that the victim sought $30,166.23 to recover  medical expenses related to his injuries.

THE PEOPLE, Plaintiff and Respondent, v. RODERICK WAYNE MITCHELL, Defendant and Appellant. (Cal. Ct. App., July 22, 2022, No. B308780) 2022 WL 2900929

Summary:  Mitchell filed a petition for resentencing under former section 1170.95 (now § 1172.6).

Effective June 30, 2022, section 1170.95 was renumbered section 1172.6, with no change in text. (Stats. 2022, ch. 58, § 10.) Mitchell filled out a form saying, “I, Roderick Mitchell, declare as follows: [¶] … [¶] I was not a major participant in the felony or I did not act with reckless indifference to human life during the course of the crime or felony.” Mitchell declared “under penalty of perjury that the above is true” and signed and dated his declaration.

People v. Beasley (Cal. Ct. App., July 21, 2022, No. G060302) 2022 WL 2866212, at *1–4

Summary: Beasley was on parole from a 25-to-life sentence when he committed first degree robbery, using  a knife in the commission of the offense, which exposed him to a maximum sentence of at least 35 years to life. The trial court dismissed all three of Beasley’s prior strike convictions, his three prior serious felony convictions and the weapon-use enhancement, and sentenced him to the low term of two years in prison. The district attorney  filed this appeal. The Court of Appeal concluded  the trial court’s order dismissing the prior strike convictions plainly “fell outside the bounds of reason under the applicable law and the relevant facts.” (People v. Williams (1998) 17 Cal.4th 148, 164  (Williams.)  the Court reversed the judgment and remanded the matter to allow Beasley an opportunity to withdraw his guilty plea.

Factual and Procedural Background

People v. Torres (Cal. Ct. App., June 16, 2022, No. 2D CRIM. B318399) 2022 WL 2712232, at *1, as modified (July 13, 2022)

Summary: VC 2800.2 is a wobbler; as a misdemeanor the punishment is “confinement in the county jail for not less than six months nor more than one year.” The trial court may exercise its discretion to grant probation for a violation of the section.

Here the court granted probation and imposed 180 days in jail, saying that was required as a minimum sentence. The Court of Appeal cites PC 1203.1(a), the section authorizing probation, which says that as a condition of probation the court may “impose either imprisonment in a county jail or a fine, both, or neither.” The Court of Appeal ruled that 6 months in jail is not required when probation is granted in this context, saying, “Here we put to rest any doubt concerning whether Vehicle Code section 2800.2 subdivision (a), mandates jail time. It does not.”

People v. Zabelle (Cal. Ct. App., July 11, 2022, No. C093173) 2022 WL 2663754, at *1

Summary: Zabelle was convicted of second degree robbery. The jury found true the allegation that he inflicted great bodily injury during the commission of the robbery.

On appeal, Zabelle asserts his case should be remanded to the trial court for resentencing consistent with a recent amendment to Penal Code section 1170 that became effective January 1, 2022,

People v. Gerson (2022) 74 Cal.App.5th 561, 570–571 [290 Cal.Rptr.3d 18, 25, 74 Cal.App.5th 561, 570–571], reh’g denied (Feb. 16, 2022), review denied (Apr. 13, 2022)

Summary: A jury found Gerson guilty of two counts of attempted voluntary manslaughter, a lesser included offense of attempted murder ; two counts of assaulting a peace officer with a semiautomatic firearm; shooting at an inhabited house; assault on a peace officer with force likely to produce great bodily injury; making a criminal threat; exhibiting a firearm to a peace officer to resist arrest ; two counts of resisting an executive officer; and harming or interfering with a police animal. The jury also found true various enhancements to these offenses. The jury found Gerson to be sane during commission of the offenses. The trial court sentenced Gerson to a total term of 33 years eight months in prison.

Gerson appealed contending that the judgment must be reversed because the trial court erred when it denied his motion for pretrial diversion based on a mental disorder.

People v. Ayon (Cal. Ct. App., July 6, 2022, No. H047360) 2022 WL 2447902, at *1

Summary: Police saw Ayon commit two minor traffic violations, stopped him in his car and detained him until a narcotics dog arrived. After the dog alerted to the presence of drugs, the police searched the car, and they found cocaine, methamphetamine, currency, and a scale. The trial court denied Ayon’s motion to suppress the fruits of the search, and he pleaded no contest to five drug-related counts.

Ayon appeals from the denial of the motion to suppress. Ayon contends the police unlawfully prolonged the duration of the stop in violation of his Fourth Amendment rights.

People v. Montano (Cal. Ct. App., June 22, 2022, No. F079222) 2022 WL 2236331, at *1

Summary: Defendants appealed from convictions for first degree murder with the special circumstance of lying in wait, and unlawful participation in a criminal street gang.

Assembly Bill No. 333, which amended Penal Code section 186.22 and added a new statute, PenL Code section 1109, is fully retroactive to all nonfinal judgments. The court also held that section 1109, as currently written, does not apply to gang special circumstance allegations under section 190.2(a)(22). Section 1109, subdivision (a) provides for bifurcation of gang enhancement allegations “charged under subdivision (b) or (d) of Section 186.22.” Section 1109, subdivision (b) requires a charge of violating subdivision (a) of section 186.22, the substantive gang offense, to be “tried separately from all other counts that do not otherwise require gang evidence as an element of the crime.” (§ 1109, subd. (b).) The failure to account for section 190.2(a)(22) may have been an oversight by the drafters of section 1109, the court cannot rewrite the statute. Such changes must come from the Legislature.