Criminal Law Case Summaries: February – March 2017
by Gary Mandinach, Attorney at Law, California Appellate Project, Los Angeles, California
1. People v. Smith (2017) Cal.App.5th , reported on February 21, 2017, in 2017 Los Angeles Daily Journal 1519, the Sixth Appellate District held that the trial court did not err in ordering the defendant to register as a narcotics offender, pursuant to Health and Safety Code section 11590, given the fact that said requirement applies to attempted, as well as completed, violations of Health and Safety Code section 11378. Additionally, the probation condition which required the defendant to submit his cell phones and computer to search and to provide any passwords necessary to conduct such a search was, not unreasonable, vague (see In re Sheena K. (2007) 40 Cal.4th 875, 890), or overbroad (Ibid.). To the extent the defendant preserved his objections to portions of the condition by making them in the trial court, those portions were reasonably related to future criminality and used terms whose meaning was necessarily clear to the defendant. (See People v. Lent (1975) 15 Cal.3d 481, 486.)
2. People v. Camel (2017) Cal.App.5th , reported on February 22, 2017, in 2017 Los Angeles Daily Journal 1525, the Third Appellate District held that the search warrant in question, which permitted the police to search “all vehicles” on the defendant’s premises, including vehicles that he did not own and were not used to commit the murders which were under investigation, was not overbroad where defendant was identified in the affidavit as the principal suspect in the crimes. It was reasonable to believe he may have stashed evidence of his crimes in a vehicle on the premises other than the vehicles he had been seen driving. The trial court did not err in applying a totality-of-the-circumstances test, rather than the Aguilar-Spinelli test (Aguilar v. United States (1964) 378 U.S. 108, and Spinelli v. United States (1969) 393 U.S. 410) requiring particularized corroboration of informant tips, to the determination of probable cause for a wiretap order. The Aguilar-Spinelli test, discarded by the U.S. Supreme Court, was not adopted by the Legislature as part of California’s Wiretap Act.
3. Buck v. Davis (2017) U.S. , reported on February 23, 2017, in 2017 Los Angeles Daily Journal 1553, the United States Supreme Court held that Court of Appeals erred in denying a certificate of appealability with respect to whether “extraordinary circumstances” excused defendant’s failure to exhaust his ineffective-assistance claim in state court. The test is whether a claim is reasonably debatable, not whether it is likely to succeed. Additionally, trial counsel rendered ineffective assistance by calling a psychologist whose report stated that the defendant, who was black, was statistically more likely to exhibit future dangerousness because of his race. This was prejudicial since it was reasonably probable that at least one juror would otherwise have had a reasonable doubt as to his future dangerousness.
4. People v. Lena (2017) Cal.App.5th , reported on February 24, 2017, in 2107 Los Angeles Daily Journal 1660, the First Appellate District, Division 4 held that the trial court did not abuse its discretion by striking the defendant’s testimony in its entirety as a sanction for refusing to answer questions on cross-examination. The court was not required to impose a lesser sanction where defendant’s refusal to answer questions was absolute, his reason for refusing, retaliation for unspecified “stonewalling” by the prosecution, was frivolous, and he was warned several times as to the sanction the court intended to impose. (See People v. Reynolds (1984) 152 Cal.3d 42.)
5. People v. Dixon (2017) Cal.App.5th , reported on February 24, 2017, in 2107 Los Angeles Daily Journal 1620, the Second Appellate District, Division 6 held that the defendant’s conviction must be reversed due to the prosecution’s inaccurate explanation of reasonable doubt. Here, the prosecutor’s rebuttal to the defense argument pertaining to reasonable doubt is as follows: “Let me tell you that presumption [of innocence] is over. Because that presumption is in place only when the charges are read. But you have now heard all the evidence. That presumption is gone.” Such an argument was grossly inaccurate. (See People v. Centeno (2014) 60 Cal.4th 659.) This argument, combined with the prosecutor’s erroneous statement that the jury’s decision regarding the defendant’s guilt is just an ordinary decision people make “a hundred times a day,” was prejudicial requiring reversal. The court found prejudice even in light of the court’s instruction to ignore arguments of counsel that conflict with the jury instructions.
6. People v. Nicolas (2017) Cal.App.5th , reported on February 24, 2017, in 2107 Los Angeles Daily Journal 1634 the Fourth Appellate District, Division 3 held that the defendant’s conviction for gross vehicular manslaughter was reversed due to instructional error that lowered the prosecution’s burden of proof. (See People v. Aranda (2012) 55 Cal.4th 342, 365 [lowering the prosecutor’s burden is structural error.]) Here, the defendant was charged with gross vehicular manslaughter, due to her colliding with the vehicle in front of her, which was stopped in traffic; the defendant was traveling approximately 80 miles per hour on the freeway while talking and texting on her cellphone. The court committed reversible error by instructing the jury that the talking and texting could be considered “uncharged acts” within the meaning of Evidence Code Sec. 1101, subdivision (b), rather than part of the crime itself. The error reduced the prosecution’s burden of proof since the burden of proof for uncharged acts is a preponderance of the evidence, and such error is reversible per se. There were no uncharged acts presented, and the court erred in instructing the jury with CALCRIM 375 pertaining to uncharged acts. The Court of Appeal did find that there was sufficient evidence of gross vehicular manslaughter, which involves more than ordinary carelessness, inattention or mistake in judgment. (See CALCRIM 592; People v. Leitgeb (1047) 77 Cal.App.2d 764.) Additionally, the trial court also misinstructed the jury regarding general criminal intent (see People v. Jeffers (1996) 41 Cal.App.4th 917; People v. Sargent (1999) 19 Cal.4th 1206, 1215), and criminal negligence which is synonymous with the term gross negligence (People v. Penny (1955) 44 Cal.2d 861, 877-879; People v. Mehserle (2012) 206 Cal.App.4th 1125, 1141.).
7. People v. Khamvongsa (2017) Cal.App.5th , reported on February 27, 2017, in 2107 Los Angeles Daily Journal 1696, the Second Appellate District, Division 1 held that where the defendant had previously been convicted of a felony, and had served a prison term for that offense, but after the passage of Prop 47 the offense was reduced to a misdemeanor, may have that offense dismissed pursuant to section 1203.4a .
8. People v. Lopez (2017) Cal.App.5th , reported on February 27, 2017, in 2107 Los Angeles Daily Journal 1692, the Second Appellate District, Division 8 held that there was sufficient evidence to sustain the conviction for carjacking. Here, the evidence established that the defendant entered the victim’s vehicle while the victim was outside of it with the motor running after parking it. The victim held onto the vehicle and tried to stop it as defendant backed out of the parking space, but the defendant continued to back up until victim had to let go. Based on the similarity to robbery, there was sufficient evidence to establish the “force or fear” element of carjacking.
9. People v. Profitt (2017) Cal.App.5th , reported on February 28, 2017, in 2107 Los Angeles Daily Journal 1764, the First Appellate District, Division 5 held that the trial court did not err by denying the defendant’s request to bifurcate his trial on misdemeanor driving with a license suspended for prior DUI, from related felony charges. This is an application of the rules set forth in People v. Valentine (1986) 42 Cal.3d 170, and People v. Sapp (2003) 31 Cal.4th 240, the California Supreme Court reaffirmed its opinion in Valentine, in that a defendant charged with being felon in possession of firearm was entitled to avoid having the nature of the prior felony disclosed by stipulating that he was a felon, but was not entitled to have felon-in-possession charge decided by the court while maintaining his right to trial by jury on other charges with which it was joined. The Court of Appeal found that there is no legal authority for the proposition that misdemeanor counts may be severed in order to avoid prejudice resulting from their joinder with “connected” felony counts, and even if such authority existed, there was no showing of an abuse of discretion. (People v. Wade (1996) 48 Cal.App.4th 460.)
10. People v. Jackson (2017) Cal.App.5th , reported on March 1, 2017, in 2107 Los Angeles Daily Journal 1784, the Fourth Appellate District, Division 3 held that the trial court did not err in hearing the defendant’s Marsden motion, and then due to the fact that a court trial was scheduled, by transferring the matter to another court for the court trial. This is true even though Marsden motions generally should be heard by the judge who is assigned to the defendant’s case, the transfer to another judge was appropriate here.
11. People v. Malago (2017) Cal.App.5th , reported on March 1, 2017, in 2107 Los Angeles Daily Journal 1781, the Fourth Appellate District, Division 1, although a trial court abuses its discretion in failing to rule on the defendant’s objections to mandatory supervision conditions, reversal is not required since there is no showing of prejudice. Here, the trial court, who imposed the probation conditions, in this split sentence under section 1170, subdivision (h), which mandated substance abuse treatment and testing, abused his discretion by deferring ruling on defense objections to those conditions to the judge assigned to supervise compliance. A split sentence (part county jail, and part mandatory supervision), is akin to a state prison sentence, and not a grant of probation. The erroneous deferral of the objections to probation conditions was harmless where the conditions were reasonably related to future criminality pursuant to People v. Balestra (1996) 76 Cal.App.4th 57, 65 and People v. Beal (1997) 60 Cal. App.4th 84, 87 and the standard set forth in People v. Lent (1975) 15 Cal.3d 481. Although defendant was not under the influence of drugs or alcohol when he committed the current offense of Health and Safety Code section 11352, subdivision (a), his admitted history as a heavy drinker and past convictions of drug-related offenses justified the conditions. This court refused to follow People v. Kiddoo (1990) 225 Cal.App.3d 922, which indicated that the alcohol condition is not reasonably related to the drug crime for which the defendant was convicted to prevent future criminality.
12. People v. Icke (2017) Cal.App.5th , reported on March 2, 2017, in dar1848, the First Appellate District, Division 5 held that the defendant, a chiropractor’s digital penetration of a client for a sexual purpose during a chiropractic massage was equivalent to penetrating her without consent under section 289, subdivision (d)(4). The victim’s misgivings do not exonerate a defendant under section 289, subdivision (d)(4) if the evidence establishes that the victim allowed a sexual touching to occur because of a representation of professional purpose. (See People v. Robinson (2016) 63 Cal.4th 200 [which held that the “unconscious” requirement of fraudulent misrepresentation of professional purpose crimes is the equivalent of a lack of consent.])
13. People v. Vandiver (2017) Cal.App.5th , reported on March 2 2017, in 2107 Los Angeles Daily Journal 1858, the Fourth Appellate District, Division 2 held that the trial court did not err in finding that the value of a blank check to be de minimis for purposes of determining under Prop. 47, whether the value of the property was less than $950. As a result, the trial court did not err in re-designating defendant’s felony conviction of receiving stolen property, based on her possession of blank checks she knew had been stolen, to a misdemeanor. The Court of Appeal rejected the prosecution’s contention that since the account had over $3,000, the value of the check should be related to that figure.
14. People v. S.M. (2017) Cal.App.5th , reported on March 3, 2017, in 2107 Los Angeles Daily Journal 1885, the First Appellate District, Division 4 held that the trial court did not abuse its discretion in dismissing the entire case based on its inherent power to do so under section 1385. Here, all of the charges related to acts by the defendant allegedly arising out of the submission of a single false insurance claim to his automobile insurer in the amount of $360. The defendant had no other criminal history, the case had been pending for four years, and the trial court found that the bulk of the delay was attributable to prosecution’s insistence on a felony conviction. The court based its rationale for dismissing the charges based on People v. Orin (1975) 13 Cal.3d 937, 947-949; People v. Dent (1995) 38 Cal.App.4th 1726, 1731, and People v. Superior Court (Romero) 1996) 13 Cal.4th 497, 530-531.
15. People v. Lara (2017) Cal.App.5th , reported on March 7, 2017, in 2107 Los Angeles Daily Journal 2002, the Third Appellate District held that there was insufficient evidence to support the first degree murder conviction of defendant Lara, and insufficient evidence to support the conviction of second degree murder for the defendants Flores and Espinoza. There was substantial evidence that defendant Lara aided and abetted an assault with a firearm, but little more than speculation to suggest he pulled the trigger, (see People v. Draper (1945) 69 Cal.App.2d 781, 786) or that he willfully, deliberately, and with premeditation, aided or encouraged the commission of murder, as opposed to sufficient evidence of second degree murder, where Lara had knowledge of the shooter’s unlawful purpose. The natural-and-probable-consequences doctrine supported conviction of second degree (see People v. Ayala (2010) 181 Cal.App.4th 1440, 1450; People v. Gonzales (2001) 87 Cal.App.4th 1, 10), but not first degree, murder. There was sufficient evidence to support the gang convictions and enhancement findings notwithstanding the additional associational or organizational connection requirement of People v. Prunty (2015) 62 Cal.4th 59, 71.) However, because the evidence establishing that required connection, as well as gang membership on the part of Flores and Espinoza, was admitted in violation of People v. Sanchez (2016) 63 Cal.4th 665 and with respect to convictions for gang participation, and gang enhancements for other crimes, admission of gang expert’s hearsay testimony and defendants’ non-Mirandized admissions of gang membership during booking were prejudicial, because little other evidence established that defendants acted to benefit their gang rather than simply engaged in felonious conduct with older gang members without the necessary knowledge or specific intent requirements of the gang crime or enhancement. (See People v. Elizalde (2015) 61 Cal.4th 523.)
16. People v. Short (2017) Cal.App.5th , reported on March 7, 2017, in 2107 Los Angeles Daily Journal 1992, the Third Appellate District held that the trial court did not abuse its discretion by admitting evidence of his prior sex offenses, against his ex-girlfriend under Evidence Code section 352, in his trial for murder and sexual assault on Jessica S. It was not unreasonable for the court to come to the conclusion that a propensity to commit sex offenses against a physically mature and sexually active 13-year-old can be reasonably inferred from commission of such crimes against an adult woman. The trial court properly excluded evidence of propensity for violence on the part of the person whom defendant accused of committing the murder as such evidence was not admissible under Evidence Code section 1108, because the statute does not apply to claims of third party culpability, nor did the proffered evidence relate to a prior sex offense. The defendant admitted that he committed the sex acts, but that the third person committed the murder.
17. People v. Vegas-Robles (2017) Cal.App.5th , reported on March 8, 2017, in 2107 Los Angeles Daily Journal 2076, the First Appellate District, Division 1 held that the admission of inadmissible hearsay, within the auspices of People v. Sanchez (2016) 63 Cal.4th 665, pertaining to gang activity and erroneous instructions regarding expert testimony did not require reversal where none of the hearsay was “testimonial” within the meaning of Crawford v. Washington (2004) 541 U.S. 36, and any errors were harmless beyond a reasonable doubt, given the extensive admissible testimony about gang issues from former gang members, including a defense witness, and the wives and/or girlfriends of defendant and accomplice.
18. People v. Garcia (2017) Cal.App.5th , reported on March 8, 2017, in 2107 Los Angeles Daily Journal 2055, the Second Appellate District, Division 5 held that there was sufficient evidence to support the jury’s gang enhancement, including the gang expert’s testimony establishing that two local gangs, whose members had committed predicate offenses, were subsets of the national gang with which defendant was affiliated, and for whose benefit he had committed the underlying crimes. (See People v. Prunty (2015) 62 Cal.4th 59, 71 [pertaining to the larger organization group Norteno]; see also People v. Albillar (2010) 51 Cal.4th 47.) Additionally the trial court did err when it sentenced the defendant to a firearm enhancement, and the gang enhancement as it violated section 1170.1, subdivision (f) , which indicates that when two or more enhancements may be imposed with using a dangerous or deadly weapon or firearm, only the greatest of those enhancements shall be imposed. (See People v. Rodriguez (2009) 47 Cal.4th 501, 505.) Here the jury found a violation of section 12022.5, and a violation of section 186.22, subdivision (b)(1)(C) for committing a violent felony for the benefit of the street gang. Here, the defendant became eligible for the 10-year enhancement only because he used a deadly weapon in the commission of the offenses. The matter is remanded to the trial court to restructure the sentence. (Id., at p. 509.)
19. People v. Reese (2017) Cal.5th , reported on March 10, 2017, in 2107 Los Angeles Daily Journal 2179, the California Supreme Court held that the presumption that an indigent criminal defendant facing retrial is entitled to a “full” and “complete” transcript of the prior proceedings is not limited to transcripts of witness testimony, and extends to transcripts of opening statements and closing arguments. (See Britt v. North Carolina (1971) 404 U.S. 226, 227, People v. Shuford (1974) 11 Cal.3d 903, 906-907, and People v. Hosner (1975) 15 Cal.3d 60, 62-66.) The denial of the transcripts of opening statements and closing arguments was harmless beyond a reasonable doubt where the issues, evidence, and arguments at the two trials were not meaningfully different, and the trials were held only two months apart.
20. People v. Villa Gomez (2017) Cal.App.5th , reported on March 10, 2017, in 2107 Los Angeles Daily Journal 2196, the Third Appellate District held that the trial court did not err in admitting the defendant’s booking statements about his gang membership. The defendant was subsequently charged with participating in a group attack, assaults, on fellow jail inmates. Given the fact that the assaults on the other inmates had not yet occurred at the time of his booking, when he answered the classification deputy’s questions, pertaining to his gang affiliation, those questions were not reasonably likely to illicit an incriminating response and thus did not amount to interrogation. (See Rhode Island v. Innis (1980) 446 U.S. 291, 297 303; People v. Elizalde (2015) 61 Cal.4th 523, 538 540.) Gang membership constitutes circumstantial evidence that a crime was gang related, but is not an element of the gang enhancement under section 186.22, subdivision (b). Any error in admitting the defendant’s statements regarding gang membership was harmless beyond a reasonable doubt where other evidence left no reasonable doubt that assaults were gang related and that defendant acted with the requisite intent.
21. In re Christian S. (2017) Cal.App.5th , reported on March 10, 2017 in 2107 Los Angeles Daily Journal 2212, the Sixth Appellate District held that People v. Arbuckle (1978) 22 c3 749, which permits a defendant to withdraw a negotiated plea, rather than be sentenced by a judge other than the one who accepted the plea, does not apply to victim restitution hearings in juvenile court. Even if it did, any error was harmless where minor received a fair hearing on the restitution issue, and the minor did not meet his evidentiary burden of demonstrating that the amounts ordered as victim restitution were excessive.
22. People v. Cervantes (2017) Cal.App.5th , reported on March 13, 2017, in 2107 Los Angeles Daily Journal 2226, the Fifth Appellate District held that as to certain counts, trial counsel rendered ineffective assistance pertaining to various sex crimes involving a 13 year old girl, and the attempted murder, torture among other crimes her and her 20 month old brother, in addition to first degree burglary. Counsel only conducted a limited investigation of a defense based on defendant’s consumption of psilocybin mushrooms, ineffectively communicating with defense-retained experts and consequently making an uninformed decision in rejecting a theory of cognitive impairment as part of a voluntary intoxication defense, and putting an unqualified expert witness on the stand. The Court of Appeal addressed various Proposition 57 questions. The Proposition establishes new procedures for determining whether a minor should be tried in adult or juvenile court. The Proposition applies to cases in which an appellate reversal subsequent to its enactment requires retrial or resentencing. The Court of Appeal found that Prop 57 is not retroactive, but on remand a “fitness hearing,” must be conducted to determine if he should be retried in adult or juvenile court. Finally, appellant’s sentence of 50 to L under the one strike law, and a consecutive 11-year determinate term for on attempted murder, plus a consecutive life term for the other attempted murder, is the functional equivalent to life without the possibility of parole and therefore violates the Eighth Amendment under Graham v. Florida (2010) 560 U.S. and People v. Caballero (2012) 55 Cal.4th 262, 268.
23. People v. Superior Court (Lara) (2017) Cal.App.5th , reported on March 15, 2017, in 2107 Los Angeles Daily Journal 2339, the Fourth Appellate District, Division 2 held that in an important case which the Court of Appeal determined warranted a speedy resolution, after allowing for an informal response, create a cause and law of the case by taking jurisdiction over a petition for writ of mandate or prohibition and filing an opinion denying relief on the merits. (See Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 178; Alexander v. Superior Court (1993) 5 Cal.4th 1218, 1223.) The provisions of Proposition 57, which were enacted by a vote of the people in the November 2016 election, that eliminated the prosecution’s right to file charges against juveniles directly in adult criminal court, but in its place Prop 57 requires that they file a motion in the juvenile court to transfer the case from juvenile to adult court where the juvenile court judge determines whether to grant the motion, may be applied to cases that were directly filed against juvenile offenders in adult court before the proposition took effect. Applying Prop 57 to require a juvenile court judge to assess whether such a person will go to trial in adult or juvenile court does not constitute a retroactive application of new law.
24. People v. Salas (2017) Cal.App.5th , reported on March 15, 2017, in 2107 Los Angeles Daily Journal 2333, the Fourth Appellate District, Division 1 held that the trial court erred in awarding $14, 055.48 for a new security and alarm system, where the defendant had been convicted of a violation of section 273.5, subdivision (a), prohibiting domestic violence. The court came to this conclusion due to the fact that the offense is not a violent felony within the meaning of section 667.5, subdivision (c), so a defendant convicted of that offense cannot be ordered to pay security expenses as an element of victim restitution under section 1202.4, subdivision (f)(3)(J).
25. In re Kyle T. (2017) Cal.App.5th , reported on March 15, 2017, in 2107 Los Angeles Daily Journal 2322, the Second Appellate District, Division 7 held that the trial court erred in finding that there was sufficient evidence that the vandalism was over $400, thereby reducing the felony to a misdemeanor. Here, the officer who testified about the cost of repair was determined by a cost of removal list. The officer did not prepare the list but it was supplied to him by the city. The list set forth essentially that each removal would be $400, and that there were three of them. However, Officer Barragan was unable to explain how the list?s cost removal determinations were made. He also conceded that he was unaware whether any repairs had been made to the two City-owned properties in question. Additionally, he conceded that he was unaware of the cost of materials to make the repairs and that he did not know how long it would take to make the repairs and how many people would be needed to make them. He acknowledged that his repair cost figures were based entirely on the graffiti cost removal list. Section 594 does not itself specify a method for proving the amount of property damage in a vandalism prosecution, and there are no reported decisions on that subject. By contrast, there are Atwo statutory approaches,@ and reported decisions analyzing those approaches, for determining the amount of a restitution award arising from the abatement of juvenile vandalism of property. (Luis M. v. Superior Court (2014) 59 Cal.4th 300, 307.) First, section 730.6, subdivision (h) of the Welfare and Institutions Code Aauthorizes full restitution for economic losses, including `the actual cost of repairing [damaged] property when repair is possible.? Awards under [Welfare and Institutions Code] section 730.6 are based on proof of the damage actually linked to the minor=s conduct . . . .@ (Id.) This method for determining restitution arising from the abatement of juvenile vandalism Aparallel[s]@ the method for determining restitution arising from the abatement of adult vandalism set forth in section 1202.4, subdivision (f). (Ibid, at p. 304; see ‘ 1202.4, subd. (f)(3)(A).) The standard of proof in a restitution case is less exacting than the standard of proof in a vandalism case. Thus, failure to meet the lower restitution standard would, by definition, mean failure to meet the standard of proof of the underlying crime. Here, the evidence of property damage that the People presented does not satisfy either the Aactual cost@ or Aaverage cost@ method for determining restitution awards. Officer Barragan was unable to explain how the list was prepared and hence how its flat rate of $400 per incident was even derived in the first place.
26. People v. Phung (2017) Cal.App.5th , reported on March 16, 2017, in 2107 Los Angeles Daily Journal 2429, the Fourth Appellate District, Division 3 held that the trial court did not err when it sentenced the defendant, who was 17 years old at the time of the gang-related murder to a term off 40 years to life for aiding and abetting another gang member who used a firearm. The sentence did not constitute cruel and unusual punishment under Graham v. Florida (2010) 560 U.S. , or People v. Caballero (2012) 55 Cal.4th 262, 268 given the fact that he will be eligible for parole after 25 years under section 4801, and the trial court considered defendant’s youth, criminal history, and the particular facts of the case, including defendant’s “lesser culpability” when imposing sentence. (People v. Franklin (2016) 63 Cal.4th 261.) Additionally, the trial court did not err when it imposed concurrent sentences for murder and shooting at an occupied vehicle did not violate section 654 where the acts intent of the participants can be viewed as having more than one intent where multiple shots were fired at a vehicle containing multiple persons. (People v. Britt (2004) 32 Cal.4th 944, 951-952.)
27. People v. Call (2017) Cal.App.5th , reported on March 16, 2017, in 2107 Los Angeles Daily Journal 2425, the Fifth Appellate District held that the trial court erred when it imposed 3 prior-prison-term enhancements under section 667.5, subdivision (b), for new drug offenses where the sentencing on the new offenses occurred after the priors were reduced to misdemeanors under Prop 47. Even though the prior convictions were felonies when the defendant committed the new offenses, and even though the prior-prison-term allegations were adjudicated prior to the convictions being reduced to misdemeanors, the prior convictions were no longer felonies at the time of the sentencing for the new offenses, and therefore were improperly imposed.
28. People v. Stapleton (2017) Cal.App.5th , reported on March 17, 2017, in 2107 Los Angeles Daily Journal 2473, the Fourth Appellate District, Division 2 held that the trial court did not abuse its discretion in imposing the condition that the defendant reside at a residence approved by the probation officer, not move without the probation officer=s approval, and notify his probation officer 24 hours before changing his residence. The defendant pled to petty theft with a prior, and had a registration condition under section 290. The residency condition was reasonable given defendant=s history of mental illness, substance abuse, and multiple felony convictions. The court distinguished this matter from People v. Bauer (1989) 211 Cal.App.3d 937 which in effect banished the defendant from living in certain places; this condition does not do that. The probation condition barring defendant from Target stores and parking lots did not unduly restrict his constitutional right to travel. (See People v. Moran (2016) 1 Cal.5th 398, 404-406.)
29. People v. Mejia (2017) Cal.App.5th , reported on March 20, 2017, in 2107 Los Angeles Daily Journal 2523, the Fourth Appellate District, Division 2 held that where the defendant was convicted of torture, spousal rape, and corporal injury to a spouse could receive only one unstayed sentence, within the meaning of section 654, where the acts relied upon by the prosecution to prove each of the three offenses were the same. Section 654 did not preclude the trial court from imposing an unstayed sentence for the crime of criminal threats, because threats are neither necessary to the commission of torture nor sufficient to satisfy any of its elements, and there was substantial evidence to support an implied conclusion that the defendant threatened the victim with the intent to terrorize her mentally, apart from the physical suffering he inflicted.