San Francisco Criminal Lawyer Blog

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.

People v. Smith (Cal. Ct. App., June 13, 2022, No. A162551) 2022 WL 2127656, at *1–4

Summary: Smith challenged the trial court’s imposition of a probation condition requiring that she participate in any treatment program, including residential treatment, as directed by her probation officer. Smith contends this condition are unconstitutional and unreasonable. The Court of Appeal agreed that the treatment condition improperly delegates judicial authority to the probation officer.

Facts:Smith, a single mother, was arrested in connection with the theft of a cell phone and iPad from an unlocked vehicle. After Smith gave police consent to search her vehicle, the police found multiple cell phones in her purse, and she admitted she had stolen two iPhones. Police also located a receipt containing the last four digits of a stolen credit card, and Smith stated that she had attempted to use the credit card four times to purchase Target gift cards. In addition, the police found suspected methamphetamine in her purse, and Smith admitted it was hers.

In re Sambrano (Cal. Ct. App., June 9, 2022, No. E078147) 2022 WL 2071115, at *1–4

Summary:In this habeas corpus proceeding, Sambrano seeks reversal of his attempted murder convictions because his jury was given a kill zone instruction that is erroneous under People v. Canizales (2019) 7 Cal.5th 591, 248 Cal.Rptr.3d 370, 442 P.3d 686 (Canizales). The court granted the petition.

and reiterated the following principles concerning the kill zone theory: