Firearm enhancements. Effective January 1, 2018, Pen C §§12022.5 and 12022.53 were amended to give the court discretion to strike or dismiss firearm enhancements under Pen C §1385. This new authority extends to any resentencing that may occur under any other law. See chaps 2, 5, 10, 11.
Injury and death. Two cases came to opposite conclusions about whether the defendant personally inflicted an overdose. Compare People v Slough (2017) 11 CA5th 419 (defendant did not personally inflict overdose by selling drugs to victim) with People v Martinez (2014) 226 CA4th 1169, 1186 (defendant personally inflicted overdose by repeatedly furnishing drugs to victim while observing her increasing intoxication over course of evening). See chap 4.
Use enhancements. The burden of proof to establish that a defendant is ineligible for Proposition 36 relief is proof beyond a reasonable doubt. See People v Frierson (2017) 4 C5th 225. In addition, two cases discussed how an enhancement under Pen C §12022.53 was not cruel and unusual punishment. See People v Garcia (2017) 7 CA5th 941 (15-year-old’s 35-to-life sentence for attempted murder reduced to 32-to-life); People v Phung (2017) 9 CA5th 866 (Pen C §12022.53 enhancement at juvenile abettor’s sentence was not de facto LWOP). See chap 5.
Gang subsets. In People v Lara (2017) 9 CA5th 296, the court found a sufficient “associational or organizational connection” between the Barrio Conway and Triple Six Gangsters subsets to which defendants belonged and the Norteño umbrella gang. See also People v Resendez (2017) 13 CA5th 181 (record provided “substantial, indeed compelling, evidence of collaboration, association, and direct contact among the various subsets of the East Side Bolen Parque gang”); People v Garcia (2017) 9 CA5th 364 (gang expert’s explanation of how Black P-Stones gang developed to include Bittys and Jungles subsets provided “significant evidence of an associational connection” between subsets responsible for predicate crimes and umbrella gang for whose benefit defendant committed charged offense). See chap 7.
Gangs and expert testimony. Several cases discussed the development of the admissibility of gang expert testimony following People v Sanchez (2016) 63 C4th 665. See People v Jeffrey G. (2017) 13 CA5th 501 (defendant’s “lengthy history” of rules violations and “spotty attendance at treatment programs” were case-specific facts in sexually violent predator trial); People v Ochoa (2017) 7 CA5th 575 (evidence regarding gang membership of those who committed predicate crimes was case-specific). Police reports and field identification (FI) cards have all been considered testimonial. See People v Iraheta (2017) 14 CA5th 1228 (FI cards) and People v Vega-Robles (2017) 9 CA5th 382 (suggesting that FI cards and police reports must be “sworn” and involve “completed” crimes to be testimonial). See chap 7.
Drug enhancements. Effective January 1, 2018, Health & S C §11370.2 was amended to limit the current 3-year enhancement for a prior conviction related to the sale or manufacture of specified controlled substances to prior convictions of Health & S C §11380 (use of a minor as agent). Previously, the enhancement was imposed for any of an additional 10 prior convictions of enumerated trafficking offenses. The California Supreme Court has granted review in People v Maita (review granted Jan. 25, 2016, S230957; superseded opinion (Oct. 19, 2015, C074872) at 2015 Cal App Unpub Lexis 7506) to decide whether a Health & S C §11370.2 enhancement can be imposed for a prior conviction of Health & S C §11379. See chaps 8, 15.
Preplea diversion and DUI. Effective August 7, 2017, Pen C §1001.80(l) provides for preplea diversion for those charged with misdemeanor DUI offenses eligible for preplea diversion. Section 1001.80(l) “does not limit the authority of the Department of Motor Vehicles to take administrative action concerning the driving privileges of a person arrested for a violation of Section 23152 or 23153 of the Vehicle Code.” See chap 9.
Kidnapping. In People v Ledesma (2017) 14 CA5th 830, the court held that language in Pen C §§209 and 667.61 concerning the movement of a victim and an increased risk of harm is not unconstitutionally vague. Removing someone from public view does not necessarily satisfy the requirement that the risk of harm to a victim is increased. See People v Williams (2017) 7 CA5th 644 (robbers moved victims into other rooms within location). See chap 10.
Property loss, money laundering, or fraud. In People v Avignone (2017) 16 CA5th 1233, the court of appeal found that the defendants were given an unauthorized sentence under Pen C §1170(f). They had been charged with securities fraud and grand theft involving a real estate investment scheme. The trial court gave an indicated sentence that included striking, under Pen C §1385(c)(1), the white collar enhancements imposed under Pen C §186.11(a)(2). See chap 12.
Prior similar offenses. In People v Wilford (2017) 12 CA5th 827, the court held that Pen C §273.5(f) should have been pleaded in the information to give the defendant notice that he could be subject to the higher sentencing range; it was not enough to allege a conviction of a qualifying offense within the previous 7 years. The prosecutor had sought the increased sentence only after the jury returned its verdict and the court found true a qualifying prior conviction. In this context, the court concluded, it was “inconsequential whether [Pen C §273.5(f)] is labeled an enhancement, alternative sentencing scheme, or a sentencing statute.” 12 CA5th at 840. See chap 13.
Record of conviction test. In People v Gallardo (2017) 4 C5th 120, the California Supreme Court overruled People v McGee (2006) 38 C4th 682 and held that, in light of Descamps v U.S. (2013) 570 US ___, 133 S Ct 2276, and Mathis v U.S. (2016) 579 US ___, 136 S Ct 2243, the Sixth Amendment prohibits the current sentencing court from increasing defendant’s punishment based on a prior conviction as a result of its finding that the prior conviction involved certain conduct unless that conduct was necessarily found to be true by the jury or admitted by the defendant in pleading guilty to the previous charge. See chap 15.
Prison priors. When the prosecution alleges a prior serious felony conviction as a strike (Pen C §§667(c) and (e)(1), 1170.12(c)(1)) and a prison prior (Pen C §667.5(b)), but not as a five-year enhancement (Pen C §667(a)), the prosecution is deemed to have exercised its discretion not to charge defendant with the five-year prior, and the five-year enhancement cannot be imposed on defendant even if he admits the serious felony prior conviction. See People v Nguyen (2017) 18 CA5th 260. See chap 15.