Recent Cases People v. Windfield (2019) Cal.App.5th , reported on December 24, 2019, in 2019 Los Angeles Daily Journal 11973, the Fourth Appellate District, Division 2 held that the defendant's right to confrontation was not violated when the missing prosecution witness's previous recorded testimony was played at the defendant's murder trial since the prosecution exercised due diligence in trying to bring in the witness. The defendants’ act of shooting multiple times into the pair of victims who were in close proximity, with semiautomatic firearms fired from close range, gives rise to the strong inference that the defendants intended to create a zone of fatal harm and that each defendant harbored the requisite intent to kill both the primary target and everyone within the zone of fatal harm; the fact that the murder victim was hit with nine bullets and the attempted murder victim with only one bullet does not disprove that the attempted murder victim was in the line of fire. Additionally, since defendant Windfield was 18 years old at the time of the offense, he is not entitled to resentencing, but he is entitled to a remand to make a record under Franklin, for his youthful parole hearing. People v. Keene (2019) Cal.App.5th , reported on December 24, 2019, in 2019 Los Angeles Daily Journal 11988, the Fourth Appellate District, Division 1 held that defense counsel has an affirmative duty to object the restitution fines and fees and to move for an inability to pay hearing. However, in this case his failure to do so was not ineffective. It is hard to prove ineffectiveness on an incomplete record (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-268). The remedy may be by way of a habeas corpus petition. The failure to object forfeits this issue on appeal. SB 136, pertaining to the one year priors under section 667.5, subdivision (b), should be struck since the defendant's case will not be final on January 1, 2020; it is remanded for that purpose. People v. Brantley (2019) Cal.App.5th , reported on January 26, 2019, in 2019 Los Angeles Daily Journal 12002, the Third Appellate District held that section 1170.1l, subdivision (c) was inapplicable to the defendant's new sentencing for an additional felony committed while the defendant was in prison because the sentence was imposed after the defendant was already released. Simply put, if a prisoner commits a felony while serving a state prison sentence but is sentenced for the in-prison felony after completing the prison term, section 1170.1, subdivision (c) does not apply to the sentence for the crime committed in prison. In re M.T. (2019) Cal.App.5th , reported on December 27, 2019, in 2019 Los Angeles Daily Journal 12087, the First Appellate District, Division 3 held that a restitution order to pay for the victim's stolen phone after a fight, was not appealable because there is no final judgment when the minor is placed on informal probation under Welfare and Institutions Code 654.2. People v. Ellis (2019) Cal.App.5th , reported on December 30, 2019, in 2019 Los Angeles Daily Journal 12120, the Fifth Appellate District held that where the defendant entered into a plea agreement prior to the passage of SB 1393, pertaining to the striking of a section 667, subdivision (a) 5-year prior, need not, in this case, obtain a certificate of probable cause to gain relief under that section. The issue that the defendant advanced is that he should be able to take advantage of the retroactive effect well after the trial court sentenced him. He had no possible way of knowing that the new legislation would come into effect at the time the plea agreement was conttemplated. (See People v. Baldivia (2018) 28 Cal.App.5th 1071; People v. Hurlic (2018) 25 Cal.App.5th 50.) People v. Blanchard (2020) Cal.App.5th , reported on January 3, 2020, in 2020 Los Angeles Daily Journal 12204, the First Appellate District, Division 3 held that where defense counsel has filed a brief stating that he has found no arguable issue to be pursued on appeal, (People v. Wende (1979) 25 Cal. 3d 436), where the brief sets out the relevant facts and law, it provides an adequate basis for the court to dismiss the appeal on its own motion. After considering whether Wende requires our independent review of the record in this circumstance, the court concluded it does not. Instead, the court followed and applied the process for review identified by our Supreme Court in Conservatorship of Ben C. (2007) 40 Cal.4th 529. People v. Lowery (2020) Cal.App.5th , reported on January 3, 2020, in 2020 Los Angeles Daily Journal 12206, the Fifth Appellate District held that the defendant’s challenge to the assessments, fees and fines imposed against him was forfeited where the defendant did not object to the imposition of those assessments, fees and fines and he did not request a hearing on his ability to pay. The rule set forth in Dueñas was inapplicable to the defendant who was not caught in an unfair cycle of criminality stemming from his poverty. The fees, fines and assessments imposed against the defendant did implicate the traditional concerns of fundamental fairness. A restitution fine (§ 1202.4, subd. (b)(1)) represents punishment. (People v. Hanson (2000) 23 Cal.4th 355, 361–363.) In contrast, a court operations assessment (§ 1465.8, subd. (a)(1)) and a criminal conviction assessment (Gov. Code, § 70373, subd. (a)(1)) are not considered punishment. (People v. Alford (2007) 42 Cal.4th 749) In Dueñas, the defendant lost her driver’s license because she was too poor to pay her juvenile citations. She continued to offend because the aggregating criminal conviction assessments and fines prevented her from recovering her license. The Dueñas court described this as “cascading consequences” stemming from “a series of criminal proceedings driven by, and contributing to, [the defendant’s] poverty.” (People v. Dueñas, supra, 30 Cal.App.5th at pp. 1163–1164.) In contrast to Dueñas, appellants’ incarcerations were not a consequence of prior criminal assessments and fines. Appellants were not caught in an unfair cycle, and they could have avoided the present convictions regardless of their financial circumstances. Dueñas is distinguishable and it has no application in this matter. (See People v. Caceres (2019) 39 Cal.App.5th 917, 928–929[declining to apply Dueñas’s “broad holding” beyond its unique facts]; People v. Johnson (2019) 35 Cal.App.5th 134, 138.) People v. Palomar (2020) Cal.App.5th , reported on January 7, 2020, in 2020 Los Angeles Daily Journal 48, the Second Appellate District, Division 6 held that there was sufficient evidence to satisfy the physical component of implied malice, for this second degree murder conviction, where the record showed that the defendant targeted the victim who was obviously intoxicated. The defendant struck the victim with a sucker punch that was hard enough to render the victim unconscious, and the defendant’s conduct guaranteed that the victim would fall to the ground onto a very hard surface. Sufficient evidence satisfied the mental component of implied malice where the defendant boasted about a plan to ambush the victim and he walked away even though he had to know that the victim had been severely injured. “‘Malice is implied when the killing is proximately caused by an act, the natural consequences of which are dangerous to life, which act was deliberately performed by a person who knows that his conduct endangers the life of another and who acts with conscious disregard for life.’” In short, implied malice requires a defendant’s awareness of engaging in conduct that endangers the life of another. (People v. Cravens (2012) 53 Cal.4th 500, 507.) People v. Taylor (2020) Cal.App.5th , reported on January 8, 2020, in 2020 Los Angeles Daily Journal 60, the Second Appellate District, Division 8 held that it is the fact, not the distance of forcible removal which constitutes kidnapping. Where the defendant drew a gun that caused the victim to back up four steps into an alley, the movement of the victim was merely incidental to the robbery and the perpetrator did not commit a kidnapping. (See People v. Williams (1970) 2 Cal.3d 894, 899-903.) People v. Lewis (2020) Cal.App.5th , reported on January 8, 2020, in 2020 Los Angeles Daily Journal 66, the Second Appellate District, Division 1 held that the trial court may look into the prior appellate record to determine if a petitioner is eligible for re-sentencing of natural and probable consequence murder convictions under SB 1437. Pursuant to section 1170.95, subdivision (c), a court is required to review a defendant’s petition and determine whether he made a prima facie showing that he could not be convicted of first or second degree murder under the law as amended by SB 1437. The trial court can consider the record of conviction in evaluating the petitioner’s initial prima facie showing under section 1170.95. The trial court’s duty to appoint counsel does not arise unless and until the court makes the threshold determination that petitioner falls within the provisions of section 1170.95, subdivision (c). Born v. Superior Court (Los Angeles) Cal.App.5th , reported on January 8, 2020, in 2020 Los Angeles Daily Journal 71, the Second Appellate District, Division 1 held that the defendant who was a social worker, is not liable under section 273a, subdivision (a) for nonfeasance in the face of a child's murder by his abusive parents. Social workers who provided emergency and family maintenance services to a child did not have the requisite duty and ability to control the child’s abusers, nor did they have care or custody of the child, for purposes of section 273a, subdivision (a). Andrew M. v. Superior Court (Contra Costa) Cal.App.5th , reported on January 8, 2020, in 2020 Los Angeles Daily Journal 86, the First Appellate District, Division 5 held that a Prop 57 hearing is not considered a new trial for the defendant's murder conviction when the sentence is remanded to the juvenile court because there was no adjudication. The defendant petitioned for a writ of mandate and presents an issue of first impression: does a conditional reversal an limited remand to the juvenile court to conduct a transfer hearing pursuant to Prop 57, constitute a "new trial" for purposes of exercising a CCP section 170.6 challenge? Based on Peracchi v. Superior Court (2003) 30 Cal.4th 1245, this court's answer is no. People v. Cornelius (2020) Cal.App.5th , reported on January 9, 2020, in 2020 Los Angeles Daily Journal 113, the Second Appellate District, Division 6 held that to file a petition for resentencing under section 1170.95, the petitioner must meet all three conditions under that section. The petitioner is not entitled to the appointment of counsel once he files a petition for relief under section 1170.95 alleging he has satisfied the filing requirements for the petition if the allegations are not accurate and the defendant is not entitled to relief. People v. Roles (2020) Cal.App.5th , reported on January 9, 2020, in 2020 Los Angeles Daily Journal 115, the Third Appellate District held that a record affirmatively showing that the defendant acknowledged his right to a jury trial with extensive conversations with his trial attorney is a knowing and intelligent waiver of this right to a jury trial. (See People v. Sivongxxay (2017) 3 Cal.5th 166.) The defendant can only be convicted of one criminal threat offense where his victim experienced only one period of sustained fear. (See People v. Wilson (2015 234 Cal.App.4th 193, 202.) The defendant cannot be convicted of criminal threats against an alleged victim where the alleged victim was not the recipient of the threatening messages and there was no evidence he intended the alleged victim to hear the messages. (See In re Ryan D. (2002) 100 Cal.App.4th 857, 863-864.) The defendant cannot be punished for both stalking and criminal threats under section 654 where the criminal threats and stalking convictions arise from the same course of conduct. (See People v. Louie (2012) 203 Cal.App.4th 388, 396-397.) People v. Venegas (2020) Cal.App.5th , reported on January 9, 2020, in 2020 Los Angeles Daily Journal 121, the Second Appellate District, Division 8 held that the trial court did not err in admitting evidence of text messages between a defendant and his brother that where relevant to show that the defendant had access to a weapon used in a murder, the evidence presentation was brief and lacked visceral impact, and the texts were offered to show consciousness of guilt as opposed to the truth of the matters asserted. A trial court did not err in sentencing defendant for a murder and for being a felon in possession of a firearm where the defendant purposefully possessed the gun before the murder took place. The discretion granted to trial judges under SB 620 does not aid a defendant where the trial judge stated it would be against the interests of justice to reduce the defendant’s sentence. Additionally, the trial court indicated that it would not strike any enhancements, such as the 5-year prior, under section 667, subdivision (a)(1), and therefore there is no reason to remand for resentencing. (People v. Franks (2019) 35 Cal.App.5th 883, 892 (no reason to remand.) In re L.W. (2020) Cal.App.5th , reported on January 9, 2020, in 2020 Los Angeles Daily Journal 130, the Second Appellate District, Division 6 held that the trial court did not err in issuing a 3-year restraining order as a reasoned and reasonable response to the minor's who had been sexually assaulted at a high school football game by the minor. California Rules of Court Rule 5.630 cannot be interpreted to dispense with the requirements of Welfare and Institutions Code section 213.5. People v. Harper (2020) Cal.App.5th , reported on January 13, 2020, in 2020 Los Angeles Daily Journal 155, the First Appellate District, Division 2 held that the Williamson rule In re Williamson (1954) 43 Cal.2d 651 pertaining the application of a specific v. general statute, did not bar the defendants convictions because the general statute contemplated more culpable conduct than the special statute. The ca found that the defendant's conduct constituted extortion, and that although the challenged jury instruction constituted an incorrect statement, it did not contribute to the jury's verdict. In re M.B. (2020) Cal.App.5th , reported on January 14, 2020, in 2020 Los Angeles Daily Journal 205, the Second Appellate District, Division 6 held that Duenas (People v. Duenas (2019) 30 Cal.App.5th 1157) does not apply to a mandatory minimum juvenile restitution fine. An analysis of restitution fines under section 1202.4 is inapplicable to restitution fines imposed in juvenile court under Welfare and Institutions Code section 730.6. People v. Verdugo (2020) Cal.App.5th , reported on January 16, 2020, in 2020 Los Angeles Daily Journal 245, the Second Appellate District, Division 7 held that section 1170.95, subdivision (d), SB 1437, does not mandate the appointment by counsel whenever a facially sufficient petition for relief has been filed. The Legislature intended to permit the sentencing court to examine readily available portions of the record of conviction to determine whether a prima facie showing has been made and that the petitioner falls within the provisions of section 1170.95, subdivision (c) before appointing counsel. A prima facie showing that the petitioner may be eligible for relief because he or she could not be convicted of first or second degree murder following the changes made by SB 1437 to the definition of murder in sections 188 and 189. subdivision (b)(2) directs the court in considering the facial sufficiency of the petition to access readily ascertainable information. The same material that may be evaluated under subdivision (b)(2), that is, documents in the court file or otherwise part of the record of conviction that are readily ascertainable, should similarly be available to the court in connection with the first prima facie determination required by subdivision (c). Because a petitioner is not eligible for relief under section 1170.95 unless he or she was convicted of first or second degree murder based on a charging document that permitted the prosecution to proceed under a theory of felony murder or murder under the natural and probable consequences doctrine (§ 1170.95, subd. (a)(1), (2)), the court must at least examine the complaint, information or indictment filed against the petitioner. People v. Morales (2020) Cal.App.5th , reported on January 16, 2020, in 2020 Los Angeles Daily Journal 260, the Fourth Appellate District, Division 2 held that in order to implicate the confrontation clause, a statement must be testimonial, meaning that it must be made with sufficient formality and with the primary purpose of creating a substitute for trial testimony. Accusatory statements made by law enforcement in an interrogation will, absent unusual circumstances, satisfy neither of these requirements. (See Crawford v. Washington (2004) 541 U.S. 36, 50; Davis v. Washington (2006) 547 U.S. 813, 823-826; Melendez-Diaz v. Massachusetts (2009) 557 U.S. 305.) The Supreme Court has concluded that “a statement is testimonial when two critical components are present.” (People v. Lopez (2012) 55 Cal.4th 569, 581; see also People v. Dungo (2012) 55 Cal.4th 608, 619.) The admission of interrogation video containing non-testiying law enforcement officer's inculpatory statements about the defendant did not violate the confrontation clause. People v. Humphrey (2020) Cal.App.5th , reported on January 17, 2020, in Los Angeles Daily Journal 2020 305, the Fourth Appellate District, Division 1 held that the trial court can correct the abstract of judgment for clerical errors post-conviction and such corrections do not "recall" the initial sentence, under section 1170, subdivision (d)(1), and the underlying conviction remains final. Given the fact that the defendant's matter had become final before the enactment of SB 620, he was not entitled to relief under that bill. In other words, the court may recall a defendant's sentence under section 1170, subdivision (d)(1), and a court need not explicitly refer to said section when acting under that subdivision, there must be some indication in the record that the court actually was recalling and resentencing the defendant under section 1170.