The facts of the current offense and prior <mask> are not relevant to this appeal. The facts of the prior murder, as revealed in the record of conviction, are that defendant killed the victim by stabbing him with a knife and hitting him on the head with a blunt object, conduct that was found by a Texas jury to be "clearly dangerous to human life" and done with the "inten[t] to cause serious bodily injury."


For over 20 years it has been the law of the State of New York — by judicial fiat rather than through the legislative process — that, as a general principle,1 offenders may not stand convicted for kidnapping when that charge is combined with another (usually rape, <mask>, or assault) which actually provides the flavor for the criminal enterprise more so than the incidental technical kidnapping.2


In 2019, the Department of Homeland Security served Pas- cal with an I-261, charging that he was removable under INA § 237(a)(1)(B), 8 U.S.C. § 1227(a)(1)(B) for remaining in the United States for a time longer than permitted. The I-261 also charged Pas- cal as removable under INA § 237(a)(2)(A)(ii), 8 U.S.C. § 1227(a)(2)(A)(ii) for being convicted of two crimes involving moral turpitude, and under INA § 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii) for being convicted of an aggravated felony relat- ing to a crime of violence for which the term of imprisonment was at least one year. Pascal, represented by counsel, appeared at a master calen- dar hearing, and conceded that he was removable as charged with regard to his status as a nonimmigrant who remained longer than permitted. The immigration judge marked his previous convic- tions into evidence without objection from Pascal’s attorney. Then, the immigration judge sustained the charges of removability against Pascal based on his two crimes involving moral turpitude (<mask> and burglary) and his aggravated felony conviction (rob- bery). Pascal applied for asylum, withholding of removal, and CAT relief asserting persecution on account of political opinion. At the merits hearing, Pascal testified that he came to the United States in 2002 and had not returned to Haiti. He testified that he was mar- ried with one son who was five years old at the time. He further testified that his life would be in danger if he returned to Haiti. USCA11 Case: 20-13993 Date Filed: 02/03/2022 Page: 5 of 10


Defendant was subsequently charged in El Dorado County with <mask> and second degree burglary with three strikes (§ 667, subds. (b)-(i)) and five prior prison term allegations (§ 667.5, subd. (b)). He pleaded guilty to grand theft and admitted three strikes. On December 24, 2003, he was sentenced to 25 years to life consecutive to the prior term, for a total term of 193 years to life.


On April 17, 1997, the court filed a written decision on defendant’s omnibus motion. However, as defendant failed to appear, the bench warrant was issued for his arrest. Approximately two years and four months later, on August 24, 1999, defendant was involuntarily returned on the warrant after being extradited from New Jersey where defendant had been continuously incarcerated, under the same name, since June 10, 1997. Defendant’s incarceration in New Jersey stemmed from an arrest for <mask>, burglary and related charges. Defendant pleaded guilty in the New Jersey matter to robbery in the second degree on July 15, 1997, and was sentenced on September 25, 1997 to a five-year term of imprisonment.


A. Kirke Bartley, J. The defendant was convicted by plea of <mask> in the second degree. On October 25, 2000, she was sentenced to a determinate term of imprisonment of seven years. Justice Harold Beeler presided over the plea and sentence, and failed to sentence the defendant to any period of postrelease supervision (PRS). Nor is there any indication on the sentencing papers that a period of PRS was added to the seven-year sentence. Moreover, at no time during the plea or the sentence did Justice Beeler ever indicate that the defendant would be subject to a period of PRS after she was discharged from prison (see minutes of plea and sentence, attached to defendant’s motion papers as exhibits A, B). Nevertheless, as she approached her discharge date, the defendant was informed by the Department of Correctional Services (DOCS) that she was required to serve five years’ PRS. She was discharged from prison on December 1, 2006, and reached the maximum expiration date of her seven-year sentence on January 1, 2007 (see DOCS inmate information sheet, attached to defendant’s motion papers as exhibit E).


The Supreme Court properly denied that branch of the defendant’s motion pursuant to CPL 440.20 which was to set aside so much of his sentence as imposed consecutive terms of imprisonment upon his convictions of murder in the second degree (see Penal Law § 125.25 [3]) and <mask> in the first degree (see Penal Law § 160.15 [2]). The statutory sentencing scheme requires the imposition of concurrent sentences “[w]hen more than one sentence of imprisonment is imposed on a person for two or more offenses committed through a single act or omission, or through an act or omission which in itself constituted one of the offenses and also was a material element of the other” (Penal Law § 70.25 [2]), but allows for judicial discretion to impose consecutive sentences where the “acts or omissions committed by defendant were separate and distinct acts” (People v Laureano, 87 NY2d 640, 643 [1996] [internal quotation marks omitted]; see People v Frazier, 16 NY3d 36, 41 [2010]; People v Brown, 80 NY2d 361, 364 [1992]; People v Holmes, 92 AD3d 957 [2012]).


For his first point on appeal from the guilt/innocence phase of his trial, Reams argues that his trial counsel was ineffective for failing to object to the admission of evidence of his other crimes. Reams asserts that references to his involvement in crimes unrelated to the capital-murder charge-the burglary of the dry cleaners, the <mask> of a bus station, and the robbery at an ATM-were featured prominently throughout the guilt/innocence phase of his trial. Reams argues that the jury should never have heard any of this prejudicial, other-crimes evidence during the guilt/innocence phase of his trial. To support his position, Reams argues that this court has made clear that, under Rule 404(b) of the Arkansas Rules of Evidence,4 other-crimes evidence can be admitted only if it is "independently relevant to the main issue, in that it tends to prove some material point rather than merely proving that the defendant is a criminal." Lockhart v. State , 2010 Ark. 278, at 9, 367 S.W.3d 530, 536.


The trial court found true allegations that Jackson had two prior serious-felony convictions, one in 1989 for <mask> and one in 1997 for assault with a deadly weapon.3 After granting his Romero4 motion as to the strike findings under section 1170.12, subdivision (c)(1), the court sentenced him to 12 years in prison, composed of a term of two years for the robbery, a concurrent term of two years for the unlawful taking or driving of a vehicle, and two consecutive five-year terms under section 667, subdivision (a) for the prior convictions.


Having determined that, the issue remains whether defendant’s actions constituted force within the meaning of the <mask> statute. New York courts have generally followed the majority rule in most jurisdictions which have dealt with these types of cases, that "a snatching unaccompanied by any resistance is not sufficient to constitute a robbery” (People v Santiago, 62 AD2d 572, 575 [2d Dept], affd 48 NY2d 1023), and have declined to follow the minority view, led by the Kentucky courts, that "a snatching of property from the victim is sufficient to constitute a robbery regardless of the victim’s resistance or lack thereof’ (People v Santiago, supra, at 578, citing Jones v Commonwealth, 112 Ky 689, 66 SW 633). Nevertheless, various State courts have determined that the force applied in the taking of a purse while looped over the victim’s arm, shoulder or hand was sufficient to constitute a robbery (see, e.g., Commonwealth v Brown, 2 Mass App 883, 318 NE2d 486; Commonwealth v Jones, 362 Mass 83, 283 NE2d 840; State v Scoby, 719 SW2d 916 [Mo App]; but see, State v Sein, 124 NJ 209, 590 A2d 665; People v Gary, 80 Ill App 3d 817, 400 NE2d 473). Similarly, and more precisely, State courts have determined that where a purse was snatched with a great degree of force or where the strap or handle broke, the taking was accomplished with sufficient physical force to constitute a robbery (see, People v Roberts, 57 *510Cal App 3d 782, 129 Cal Rptr 529, overruled on other grounds in People v Rollo, 20 Cal 3d 109, 569 P2d 771; Raiford v State, 52 Md App 163, 447 A2d 496, affd in part and revd in part on other grounds 296 Md 289, 462 A2d 1192 [handbag "ripped” from the complainant]; Annotation, Purse Snatching as Robbery or Theft, 42 ALR3d 1381-1391).


On September 17, 1997, prior to resuming jury selection, Justice Fisher rendered his decision on the Molineux application. The court ruled that the testimony regarding the uncharged <mask> would be allowed on the People’s direct case as to codefendant Maxwell on the count of the indictment for which Mr. Jamal was not charged. As a result of that determination, defendant Jamal moved for a severance and mistrial on the grounds that he would be prejudiced by the jury hearing evidence that he was involved in a prior robbery. The application was granted by the court. Further, defendant Maxwell asked for a mistrial which also was granted by the court. The jury was disbanded, and the People proceeded with defendant Maxwell’s case before a new jury.


The minutes of the Clerk of the court indicate that after a jury had been drawn and the case partially tried, defendant-petitioner through his counsel, withdrew his former plea of not guilty and, with the consent of the District Attorney pleaded guilty to *532<mask> in the second degree. He was thereafter sentenced to a term of not less than 5 years nor more than 10 years in Attica State Prison.


The similarity of the tactics used by Scott support that joinder was proper as a matter of law. Several other cases support this conclusion. See State v. Vinson , 834 S.W.2d 824, 827 (Mo. App. E.D. 1992) (finding it proper to join two offenses when both offenses involved the <mask> of a service station/food mart in St. Charles within a two-month period where defendant drew a resolver on the cashier, walked behind the counter, removed the case drawer, and fled from the store to a waiting vehicle); State v. Forister , 823 S.W.2d 504, 510 (Mo. App. E.D. 1992) (finding joinder proper where all four robberies were committed in St. Louis County within a three-week period and in each instance defendant drove a red 1963 Chrysler as a getaway car for the same accomplice who displayed a gun and demanded money); State v. White , 755 S.W.2d 363, 367-68 (Mo. App. E.D. 1988) (concluding joinder of two separate robberies was proper where in both robberies the robber was a thin, black male, who displayed a handgun and announced a robbery; ordered the victims to put their things onto the table; herded the victims into the bathroom(s) at gunpoint; and ordered one victim to hand over his automobile keys before fleeing in the that vehicle); State v. Sims , 764 S.W.2d 692, 696 (Mo. App. E.D. 1988) (finding joinder of twenty counts arising out of ten separate criminal episodes proper where the crimes all occurred in south St. Louis within a three week period and in each incident a man entered a business, drew a handgun, produced a bag from his waist area and demanded the employee fill the bag with money).


"The fear mentioned in Section 211 may be either: [¶] 1. The fear of an unlawful injury to the person or property of the person robbed, or of any relative of his or member of his family; or, [¶] 2. The fear of an immediate and unlawful injury to the person or property of anyone in the company of the person robbed at the time of the <mask>." (§ 212.)


The facts fully warrant the conclusion that there was a breaking into the plaintiff’s place of business, but the question is whether this breaking in and the extraction of the certain sum of money from the filing cabinet in the plaintiff’s store, if we believe the plaintiff’s claim, was a burglary or a <mask> within the terms of the policy.


Murder committed in the perpetration of, or attempt to perpetrate, <mask> is deemed by statute to be first degree murder. (Former § 189, now § 189, subd. (a).)4 Subdivision (a)(17) of section 190.2 provides for a penalty of death or LWOP for a defendant found guilty of first degree murder committed "while the defendant was engaged in, or was an accomplice in, the commission of, attempted commission of, ...: [¶] (A) Robbery in violation of Section 211 ...." ( § 190.2, former subd. (a)(17)(i), now subd. (a)(17)(A).)


These are the unambiguous, incriminating, raw facts known to the officers who, immediately after the shooting, were in pursuit of the two fleeing felons: (1) the police knew the names and descriptions of the two unapprehended and armed bank robbers; (2) they knew that the three conspirators had carefully planned the <mask> in defendant’s apartment the night before; (3) they knew the location of defendant’s apartment: it was less than a mile from the victimized bank; (4) they had the keys to defendant’s apartment and the front entrance door of his building; (5) within one hour after the shooting they observed an unusual garment discarded in a garbage can adjacent defendant’s home; this unique garment was strikingly similar to one worn a short time before and a short *391distance away by one of the bandits. It was reasonable for Ulsamer to infer that the fugitives might be in defendant’s apartment. (In fact, as developed at trial, they fled to a friend’s apartment adjacent defendant’s building.)


"Here, [the gang expert] based his opinion that appellant committed the <mask> to further the interests of the Norteño gang on the premise that it was a violent crime, and gangs commit violent crimes in order to gain respect and to intimidate others in their community. But, nothing in the record indicates that appellant or his companions did anything while in the supermarket to identify themselves with any gang, other than wearing clothing with red on it. No gang signs or words were used, and there was no evidence that [the assistant manager of the supermarket] or any of the other persons who witnessed the crime knew that gang members or affiliates were involved. Therefore, the crime could not have enhanced respect for the gang members or intimidated others in their community, as suggested by [the gang expert.]" ( In re Daniel C., supra , 195 Cal.App.4th at p. 1363, 125 Cal.Rptr.3d 337.)


It is particularly important for prosecutors to move swiftly when a defendant has multiple indictments pending against him. As a general rule, within the bounds of fundamental fairness a prosecutor should have the right to choose which of several cases he should try first. However, once having tried one indictment with its attendant and inevitable lapses of *236time, it is essential that any untried indictments be moved expeditiously. In the instant case, for example, while "only” 18 months are chargeable to the People, the fact remains that the <mask> charge has been pending against the defendant for almost four years.


As for the codefendant, Robert Chamberlin, in addition to *642his conviction with Tunstall on indictment No. 248/79, he had two other criminal matters pending against him in Richmond County, and his sentence was adjourned so that a disposition could be had as to all of his pending cases. Subsequently, Chamberlin pleaded guilty to attempted <mask> in the first degree under indictment No. S-287/79, with the understanding that the sentence to be imposed on that conviction would run concurrently with the sentence to be imposed on indictment No. 248/79, and on December 17, 1980, he was sentenced to indeterminate term of imprisonment on indictment No. 248/79. Thereafter, and on January 15, 1981, Chamberlin was sentenced as a second felony offender to a concurrent, indeterminate term of imprisonment on indictment No. S-287/ 79, and on February 26, 1981, he was sentenced to a further indeterminate term of imprisonment as a probation violator on indictment No. 100/77. However, that sentence was designated to run consecutively with the sentence imposed on indictment No. 248/79. A notice of appeal was subsequently filed on behalf of Chamberlin with regard to his conviction on indictment No. 248/79, but apparently nothing was done with respect to perfecting that appeal until after the Appellate Division reversed the conviction of the codefendant, Tunstall, on October 24, 1983. An appellate brief was thereafter filed on Chamberlin’s behalf on March 15, 1984 and a respondent’s brief was filed on or about August 8, 1984. The foregoing appeal was never calendared, however, for following the decision of the Court of Appeals in People v Tunstall (63 NY2d 1, supra), the People moved in the Appellate Division, inter alia, to remand the Chamberlin matter to the Supreme Court for a hearing on the effect, if any, of hypnosis on appellant’s ability to meaningfully cross-examine the female victim at the trial on the underlying indictment. This motion was granted on or about October 10, 1984, whereupon Chamberlin’s appeal was ordered held in abeyance and the matter remanded to the Supreme Court, Richmond County, for the above-mentioned hearing.


Section 70.02 of the Penal Law defines a violent felony offense as applicable to the instant case, to include <mask> in the first degree, a class B felony, and robbery in the second degree, a class C felony. The statute (Penal Law, § 70.08) defines a persistent violent felony offender as a person who stands convicted of a violent felony offense after having previously been subjected to two or more predicate violent felony convictions. In section 70.04 (subd 1, par [b], cl [i]) it is stated: “The conviction must have been in this state of * * * a violent felony offense * * * or in any other jurisdiction of an offense which includes all of the essential elements of any such felony for which a sentence *861to a term of imprisonment in excess of one year * * * is authorized in this state”.


MY BELIEF IS BASED UPON THE FOLLOWING FACTS: D. Arnold (Affiant) was assigned to investigate Aggravated Assault and reviewed offense report #161435712D written by Officer A. Deleon. Affiant was dispatched to 10500 Northwest Freeway, Houston, Harris County, Texas. Affiant learned from Officer A. Deleon that Cindy Davis (Witness) reported that on December 24, 2012 she observed two men (Complainants) lying injured on the side of the roadway with their hands tied and mouths duct taped. Affiant learned from HPD Officer A. Deleon that Complainants had apparent gunshot wounds to their bodies and had been transported to Ben Taub Hospital for treatment. Affiant spoke to Diane Deyoung who witnessed Complainants coming out of a white van license plate AV5-0784 before the [sic] continued down the road without stopping. Affiant learned from hospital personnel that Moses Glekiah (Complainant Glekiah) was recovering from gunshot wounds and Richard Merchant (Complainant Merchant) was in critical condition for his gunshot injuries. Affiant spoke with Moses Glekiah (Complainant Glekiah) and learned he and his friend Richard Merchant (Complainant Merchant) had agreed to engage in [sic] business transaction at 2501-C #2 Central Parkway Houston, Harris County, Texas with a male known as "Jerry." When Complainants arrived on December 24, 2012 at the business that they describe as an autoshop, they are grabbed by several males and held against their will. Complainant Glekiah reported that Suspects also stole their cash money $400 that Complainants had in their possession, wallets, cell phone and a suitcase/briefcase container belonging to Complainant Merchant. Suspect 1 poured gasoline on Complainants and held lighter near Complainants threatening to set them on fire. Suspect 1 then called two other Suspects who put Complainants in truck at gunpoint. Complainant Glekiah says that he felt in fear for their lives. Complainants jumped out of the van because they believed they were going to be killed. As Complainant [sic] leaped out of the vehicle they were shot by Suspects. Complainant Glekiah directed Affiant to autoshop where this Aggravated Assault and <mask> occurred at 2501-C *227#2 Central Parkway Houston, Harris County, Texas. Affiant researched the location and found the owner to be Charese Foreman. Affiant review computer databases and discovered that Charese Foreman is married to Nathan Ray Foreman. Affiant reviewed criminal history of Nathan Ray Foreman and found that he had been charged with autotheft, possession of prohibited weapon and delivery of cocaine. Affiant showed Complainant Glekiah a known photograph of Nathan Ray Foreman along with five other photos of similar looking males. Complainant Glekiah positively identified Nathan Ray Foreman as Suspect 1 who participated in punching Complainants, told other suspects what to do, poured the gasoline on Complainants and contacted 2 suspects to drive Complainant away from business. Affiant knows that gasoline and lighter are deadly weapons that can kill a person. Affiant believes that Complainants and Suspects DNA will be inside the Target Location along with property belonging to Complainant such as money, suitcase/briefcase, wallets, cell phone, identification cards. Also instrumentalities of the crime such as white van that transported Complainants, guns used to shoot Complainants, zip ties used to tie complainants may also be inside Target Location. The trial court denied appellant's motion to suppress.


“ ‘However, if the record, including the court’s own documents, “contain[s] facts refuting the allegations made in the petition,” then “the court is justified in making a credibility determination adverse to the petitioner.” ’ ” (Lewis, supra, 11 Cal.5th at p. 971.) “Appellate opinions . . . are generally considered to be part of the record of conviction.” (Id. at p. 972.) “In reviewing any part of the record of conviction at this preliminary juncture, a trial court should not engage in ‘factfinding involving the weighing of evidence or the exercise of discretion.’ ” (Ibid.) “In sum, the parties can, and should, use the record of conviction to aid the trial court in reliably assessing whether a petitioner has made a prima facie case for relief under [section 1170.95], subdivision (c).” (Ibid.) II Analysis The question of how courts should use pre-Banks and Clark special circumstances in reviewing resentencing petitions under section 1170.95 in evaluating any prima facies showing of eligibility is before our Supreme Court. Ultimately, our high court will provide direction to the courts. Until then, we will follow our decision in Arias, supra, 66 Cal.App.5th 987, review granted. There, we examined the same issues that are before us in this case. We concluded that a resentencing petition could not be denied at the prima facie stage of review based solely on a true finding on a pre-Banks and Clark <mask> murder special circumstance. We continue to believe the analysis of the issues in Arias is correct and will apply it here. On this record, the court could not find Alfredo, an aider and abettor, to be a major participant in the crime while acting with reckless disregard for human life without factfinding, which is not permitted at the prima facie review stage of a petition for resentencing under section 1170.95 in light of


Saddler discusses a number of prior cases in which such an instruction was held to be properly given, one of which, People v. Perez (1967) 65 Cal.2d 615, 55 Cal.Rptr. 909, 422 P.2d 597 ( Perez ), is instructive. In Perez , the defendant was charged with four counts of first degree <mask>. ( Id. at pp. 616-617, 55 Cal.Rptr. 909, 422 P.2d 597.) The prosecution presented evidence of the four robbery offenses as well as an uncharged prior robbery, admitted to establish a modus operandi bearing similarity to the charged crimes. ( Id. at pp. 618-619, 55 Cal.Rptr. 909, 422 P.2d 597.) In direct testimony, the defendant gave an alibi with respect to the robberies charged in counts 1 and 2 but was silent as to the robberies in counts 3 and 4. On cross-examination, the prosecutor sought to ask about the other charged robberies, but an objection that the question exceeded the scope of direct examination was sustained. The prosecutor commented on the defendant's failure to explain or deny evidence as to counts 3 and 4 in closing argument, and the trial court gave an instruction *266permitting the jury to draw an adverse inference from the defendant's failure to explain or deny facts within his knowledge. ( Id. at pp. 619-620, 55 Cal.Rptr. 909, 422 P.2d 597.) *609The Supreme Court found the instruction permissible. ( Perez , supra , 65 Cal.2d at p. 621, 55 Cal.Rptr. 909, 422 P.2d 597.) Noting that " 'a defendant who takes the stand and testifies in his own behalf waives his Fifth Amendment privilege against self-incrimination at least to the extent of the scope of relevant cross-examination' " ( id. at p. 620, 55 Cal.Rptr. 909, 422 P.2d 597 ), the court determined that cross-examination as to the robberies charged in counts 3 and 4 as well as the collateral robbery would have been proper because they "disclosed a plan, pattern, and modus operandi similar in many respects to those charged in counts 1 and 2" ( id. at p. 621, 55 Cal.Rptr. 909, 422 P.2d 597 ). Because the defendant failed to explain or deny the evidence against him as to the charged robberies in counts 3 and 4, as well as the uncharged robbery-matters the prosecutor could have asked about on cross-examination-the instruction was proper. (See People v. Ing (1967) 65 Cal.2d 603, 610-611, 55 Cal.Rptr. 902, 422 P.2d 590 [concluding that the defendant's general denial of charged rape offenses on direct examination permitted cross-examination of other uncharged rape offenses as to which the defendant was silent; the defendant thus waived his state and federal constitutional privilege against self-incrimination with respect to the collateral rape offenses, and comment and instruction on his failure to deny them were not improper].)


In the earlier marine policies there was no specific coverage against losses by theft. Such losses came under a clause insuring against "all fortuitous circumstances”. (Atlantic Ins. Co. v Storrow, 1 Edw Ch 621, 5 Paige Ch 285 [1835].) Theft by piracy, <mask> or other violence was considered a fortuitous circumstance as distinguished from losses caused by failure to exercise ordinary diligence. (Spinetti v Atlas S. S. Co., 80 NY 71, 79 [1880]; see, Delay, op. cit, 4 Mar Law 277, 279 [1979].)


Although a BB gun is not a firearm or pistol within the meaning of the statute (see People v Depaul, 101 AD3d 1735, 1735 [2012], lv denied 20 NY3d 1097 [2013]; People v Wilson, 283 AD2d 339, 340 [2001], lv denied 97 NY2d 644 [2001]; see also Penal Law § 265.00 [3]; see generally People v Howard, 22 NY3d 388, 401 [2013]), the question is whether defendant displayed “what appear[ed] to be,” and whether Arroyo perceived that object as, “a pistol, revolver ... or other firearm” (Penal Law § 160.10 [2] [b] [emphasis added]; see People v Depaul, 101 AD3d at 1735 [affirming conviction for menacing in the second degree where victim testified that “the BB gun appeared to be a real handgun and he feared for his life”]). While Arroyo’s testimony was somewhat inconsistent or unclear as to whether he believed that defendant had an actual firearm as opposed to a BB gun, the evidence, when viewed in the light most favorable to the People (see People v Bleakley, 69 NY2d 490, 495 [1987]; People v Toye, 107 AD3d at 1151), is legally sufficient to establish that defendant displayed what appeared to be a pistol or firearm while in immediate flight from the commission of a <mask>.


Willbanks was 17 years old when he was charged with kidnapping, first-degree assault, two counts of first-degree <mask>, and three counts of armed criminal action. He was convicted and sentenced to consecutive prison terms of 15 years for the kidnapping count, life for the assault count, 20 years for each of the two robbery counts, and 100 years for each of the three armed criminal action counts. Id. at 239. Willbanks asserted that "his sentences, in the aggregate, will result in the functional equivalent of a life without parole sentence." Id. at 239. He went on to point out that "[t]he Supreme Court held [in Graham v. Florida , 560 U.S. 48, 82, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010),] that the Eighth Amendment prohibits juvenile nonhomicide offenders from being sentenced to life without parole." 522 S.W.3d at 242.


Subdivision 3 of section 125.25 of the Penal Law provides that: “A person is guilty of murder in the second degree when: * * * (3) [ajeting either alone or with one or more other persons, he commits or attempts to commit <mask>, burglary, kidnapping, arson, rape in the first degree, sodomy in the first degree, sexual abuse in the first degree, escape in the first degree, or escape in the second degree, and, in the course of and in furtherance of such crime or of immediate flight therefrom, he, or another participant, if there be any, causes the death of a person other than one of the participants”.


In the case cited {supra) the court mentions that burglary and <mask> may be committed in four or five different ways. Section 240 defines how assault in the first degree (a felony) may be committed. Applying the principle in People v. Caruso (supra) it logically follows that it was clearly the intention of the Legislature to increase the punishment to be imposed upon a conviction of assault in the first degree (a felony) if a dangerous weapon was used. In this case the defendant was charged with the crime of assault in the first degree and in its perpetration he aimed and discharged a loaded pistol at the complainant with the intention of killing him. The jury so found and the court imposed the additional punishment as provided in section 1944.


The verdict was neither based on legally insufficient evidence nor against the weight of the evidence. Although defendant never explicitly admitted any advance knowledge of his cohorts’ intent to commit a <mask>, defendant confessed to knowingly driving them, and their loot, away from the robbery scene, and a rational jury could readily have concluded from this confession, and defendant’s pre- and post-robbery conduct, that defendant, at the very least, joined the robbery in progress with intent that it be successfully completed (see, People v Dordal, 55 NY2d 954; People v Jackson, 44 NY2d 935; People v Keitt, 42 NY2d 926).


Eugene J. Berkowitz, J. Defendants Batista, Jackson and Wilson were indicted for <mask> in the second degree, grand larceny in the third degree, and criminal possession of stolen property in the second degree. Prior to trial defendants made Sandoval motions as to their past criminal records, which were granted on a limited basis. The issue herein raised is whether the court can grant the People’s motion to limit cross-examination as to the complaining witness’ prior bad acts which resulted in an adjournment in contemplation of dismissal (ACD) for a marihuana possession arrest.


Nor is this case analogous to Loeser v Nathan Hale Gardens (73 AD2d 187), relied upon by plaintiff, where this Court found the evidence sufficient to sustain a finding of liability for an assault perpetrated by unknown assailants in an outdoor parking lot behind an apartment building, both of which were owned and operated by the defendants. Liability was predicated upon the defendants’ failure to restore to proper functioning two large fluorescent lights, installed in conformity with a statutory requirement, which normally illuminated the area. There was expert testimony that crimes of <mask> and assault are deterred by lighting in an outside environment.


Further, the record is clear that the defendant testified with the understanding that the Sandoval ruling allowed but a single question as to whether or not he had been convicted of <mask>. The purpose of the Sandoval ruling, of course, is to let the defendant make an informed decision as to whether he will testify in his own behalf (see, e.g., People v Astado, 131 AD2d 684, 685). Plainly the purpose of the ruling in the present case was undone when the prosecutor with the court’s acquiescence went beyond the limitation relied upon by the defendant when he took the witness stand. It was moreover not the defendant, but the prosecutor who "opened the door”, *191and the court’s appropriate role at that juncture was not to open the door wider but to shut it in adherence to the ruling already made. Undoubtedly, the defendant’s credibility was in issue and in that context particularly the court’s error denied the defendant a fair trial.


*18In addition to the jury's implied findings, the error was harmless because the substantial risk of harm issue was uncontested. The omission of an element during jury instruction may be harmless when the factual issue is uncontested by the defense. ( People v. Mil (2012) 53 Cal.4th 400, 410, 135 Cal.Rptr.3d 339, 266 P.3d 1030 ["the omission of an element of a ... sentencing factor is harmless when 'the omitted element was uncontested and *192supported by overwhelming evidence, such that the jury verdict would have been the same absent the error.' "]; People v. Garcia (2001) 25 Cal.4th 744, 761, 107 Cal.Rptr.2d 355, 23 P.3d 590 [same].) The substantial increase in risk element of section 667.61, subdivision (d)(2) was uncontested by Mr. Adams. Mr. Adams called no witnesses and chose to rely on the state of the evidence. Mr. Adams's lawyer never argued that the asportation did not substantially increased the risk of harm and never mentioned the 667.61, subdivision (d)(2) qualifying circumstance instructions nor special finding. Mr. Moreland denied being present throughout the sexual assaults, kidnapping, attempted murder and other crimes committed against Diane. However, during jury argument, Mr. Moreland's counsel never discussed the substantially increased risk of harm element nor anything concerning the 667.61, subdivision (d)(2) qualifying circumstance issue. The substantial increase in the risk of harm entire issue was uncontested and, with good reason, because the lengthy asportation allowed defendants to leave the presence of Mr. Odhiambo. He testified that as soon as the <mask> was completed and Diane was removed forcibly from his car, defendants fled with her. During the movement, the jurors found that both defendants personally used a firearm. Further, it was during the lengthy asportation Diane was repeatedly sexually assaulted.


Davis was not a <mask> case. Our Supreme Court did not decide whether Davis could have been convicted of robbery for his larceny of a shirt had a scuffle ensued when he attempted to leave Mervyn's with a fraudulently obtained credit voucher (instead of a shirt). Consequently, without more Davis would theoretically support a jury's finding that Mireles's initial taking of the weed killer from the shelf was a larceny. But Davis cannot support any more than that proposition. The majority opinion extends Davis far beyond its natural or logical reach.


Counts 1 through 5 of the information charged Hutchinson, Smith and Phillips with first degree residential <mask>, in violation of section 211. Counts 6 through 10 of the information charged Hutchinson, Smith and Phillips with home invasion robbery, in violation of section 211. As to counts 6 through 10, the information further alleged that Hutchinson, Smith and Phillips acted in concert and entered an inhabited dwelling house during the commission of the robbery, in violation of section 213, subdivision (a)(1)(A).


In view of all the circumstances, that is, the admission by this defendant to our Probation Department of the commission of the crimes for which he was indicted on September 25, 1961, and said admissions having been prior to the taking of a plea of guilty to <mask> in the third degree and prior to his judgment of conviction, and in view of the provisions of section 312-d of the Code of Criminal Procedure regarding the use of confessions or admissions given while being investigated for youthful offender treatment, this court hereby, on its own motion, under the authority given to it under section 671 of the Code of Criminal Procedure hereby dismisses Indictments No. 1075-61 and No. 1289-61 against this defendent Robert Earl Gatlin. This court has reached this conclusion only after the use of extreme deliberation, as the honest labors of a Grand Jury and the District Attorney should not be set aside lightly. It would be a violation of the court’s sense of fair play and justice, however, if it did not exercise this power, no matter how reluctantly.


Michael J. Obus, J. Late in the evening of October 18, 1988, Police Officer Michael Buczek was shot and killed as he and his partner tried to stop two men in the vicinity of Broadway and 161st Street in Manhattan. Unbeknownst to the officers, these two men were fleeing from a <mask>. On January 12, 1989, a grand jury commenced an investigation into Officer Buczek’s death, at the outset of which the assistant district attorney asked the grand jurors to vote to extend their term for at least an additional four months. After hearing from 25 witnesses and receiving over 30 exhibits into evidence, which focused on the guilt of the defendant and Daniel Mirambeaux, both of whom had fled to the Dominican Republic immediately after the crimes, the *785prosecutor, on March 30, 1989, asked the grand jury to consider, as to Mirambeaux only, charges of murder in the first degree; attempted murder in the first degree; two counts of murder in the second degree, intentional and felony murder; and robbery in the first degree. The panel voted a true bill.


We need not decide whether a greater showing of authenticity would be required to admit the videos as substantive evidence at trial, because the videos were relevant to the probable cause determination if they bore indicia of reliability (see Part I.D., post) , even if (for some unlikely reason) the videos did not actually depict the charged robberies. (Cf. Goldsmith, supra , 59 Cal.4th at pp. 265-266, 271-272, 172 Cal.Rptr.3d 637, 326 P.3d 239 [authentication of images from red light traffic camera at court trial on citation for running red light]; People v. Chism (2014) 58 Cal.4th 1266, 1304, 171 Cal.Rptr.3d 347, 324 P.3d 183 [authentication of photographs from surveillance video at murder and <mask> jury trial].) People v. Collins (1997) 59 Cal.App.4th 988, 994, 69 Cal.Rptr.2d 544, and People v. Romeo, supra , 240 Cal.App.4th 931, 193 Cal.Rptr.3d 96, upon which appellant Alexander relies, are also distinguishable. The searches in those cases were based upon a warrant ( Collins ) and a probation search condition ( Romeo ) , and the validity of the searches turned on evidence of the existence and scope of the warrant and search condition, rather than a probable cause determination based on the information possessed by the officer. (Collins , at p. 994, 69 Cal.Rptr.2d 544 ; Romeo , at p. 952, 193 Cal.Rptr.3d 96.)


As the Court held in Hamilton, “[m]ere doubt as to the defendant’s guilt, or a preponderance of conflicting evidence as to the defendant’s guilt, is insufficient, since a convicted defendant no longer enjoys the presumption of innocence, and in fact is presumed to be guilty.” (People v Hamilton at 27.) Here, defendant has not met his burden of establishing by clear and convincing evidence that he is actually innocent of the burglary and <mask> for which the trial jury found him guilty in 1998. Therefore, his motion to vacate his conviction for actual innocence is denied.


The Appellate Division also has labeled as a Ventimiglia hearing those in which a prior crime of the defendant was involved (e.g., People v Gaston, 261 AD2d 782, lv denied 93 NY2d 1002 [attempted murder; prior drug trafficking]; also, People v Holmes, 260 AD2d 942, lv denied 93 NY2d 1020; People v Glass, 259 AD2d 989, lv denied 93 NY2d 924; People v Greene, 252 AD2d 746, lv denied 92 NY2d 925; People v McClain, 250 AD2d 871, lv denied 92 NY2d 901); as a Molineux hearing in the same situation (e.g., People v Vaughn, 209 AD2d 459, lv denied 84 NY2d 1040 [manslaughter; drug activity]; also, People v Burton, 186 AD2d 672, lv denied 81 NY2d 761; People v Young, 178 AD2d 571, lv denied 79 NY2d 955; People v Linton, 166 AD2d 670, lv denied 77 NY2d 879; People v Miller, 239 AD2d 787, affd 91 NY2d 3722); and to a Ventimiglia hearing where there was proof of a defendant’s conduct, other than direct proof of his prior crime (e.g., People v Morris, 267 AD2d 1032 [<mask>; defendant’s initial words were “ T just got out of jail. I’m on parole’ ”]; People v Thibodeau, 267 AD2d 952; People v Maxwell, 260 AD2d 653, lv denied 93 NY2d 1004).


*791But probably what is most corroborative of Steward's credibility in our evaluation is the way his statements came to light. At one of the habeas hearings, Rory Dungey testified that he met Steward in prison in 2003. According to Dungey, Steward had told him that he had committed a <mask> with Teamer and Bailey, and that Bailey had fled to Texas. Then, in 2007, apparently by coincidence, Dungey met Miles in a different prison. Miles told Dungey that he was wrongfully convicted and he thought that Teamer and Bailey had done the robbery with a third man whose identity he didn't know. It was then that Dungey told Miles about Steward and what Steward had told him years earlier. A meeting between Steward and Miles was then arranged by another person in prison, Prince. Prince had met Miles in prison and he thought Miles "was like a weirdo because he was always telling people he was innocent." According to Prince, when he asked Steward about the robbery, Steward said, "Yeah, that was me. I heard it was a guy who got locked up from [their] neighborhood that had nothing to do with it, but I don't know his name. I don't know him."


The entire incident, beginning with the traffic stop and culminating in [Peacock]’s arrest, took place in the performance of the police officers’ duties in the City of Philadelphia. [Peacock] caused bodily injury by repeatedly kicking, punching, and struggling with Officer Hynes. As a result of [Peacock]’s conduct, the officer was transported to a hospital, underwent surgery to repair his injured wrist, and missed eight months of work. [This] evidence presented by the Commonwealth was sufficient to sustain the conviction for <mask> as well as simple assault against the police officer.


I have found only one <mask> case where the everyday item held to have been used as a deadly weapon never made contact with the victim , and that case is easily distinguishable. In In re Jose R. (1982) 137 Cal.App.3d 269, 186 Cal.Rptr. 898, the defendant stuck a metal pin inside an apple and gave it to his teacher, but fortunately another student warned the teacher before she could eat it. ( Id. at p. 274, 186 Cal.Rptr. 898.) At trial, a medical expert testified about the severe injuries and infections that could have resulted from ingesting that particular pin. She also opined ingestion could have been fatal. ( Id. at p. 276, 186 Cal.Rptr. 898.) Based on that evidence, the court held the defendant had used the pin as a deadly weapon because, had the teacher ingested it as planned, she would have suffered grave injury. ( Ibid. ) Here, in contrast, the record *941contains no testimony about what could have happened had Koback's swing landed. Unlike ingesting a metal pin, which is sharp enough to draw blood upon slight contact, the type of the injury, if any, that would result from being hit in the midsection with a key like the one Koback used depends entirely on the force behind the swing.


The State petitioned this Court to review the court of appeals' conclusion that, by failing to apply the law of self-defense to the lesser-included offense of <mask>, the trial court committed jury-charge error. We do not understand the State to object to the court of appeals's harm analysis, but only its ruling that the trial court "erred" at all.12


The indictment was based upon a statute of that State which in pertinent part defines <mask> and battery as follows: ‘ ‘ Whoever unlawfully and maliciously inflicts upon another person, either with or without any weapon or instrument, any grievous bodily harm * * * is guilty of a misdemeanor ”. (18 Purdon’s Penna. Stats., § 4709 [Penal Code of 1939].)


In 2009, Appellant was convicted of <mask> with a deadly weapon. The jury assessed his punishment at confinement for life in the Institutional Division of the Texas Department of Criminal Justice. This court subsequently affirmed Appellant's conviction in an opinion and judgment issued in 2011. Dohnal v. State , No. 11-09-00236-CR, 2011 WL 319950 (Tex. App.-Eastland Jan. 27, 2011, pet. ref'd) (mem. op., not designated for publication). We recited the facts of the case as follows in our previous opinion:


The defendant’s counsel in his opening statement claimed that the defendant had the right to refuse to stop for the bicycle police officer because the latter lacked probable cause, probably relying upon the cases of People v Spencer (84 NY2d 749, cert denied 516 US 905) and People v Hoffman (283 AD2d 928, lv denied 96 NY2d 919).1 The prosecutor objected that this was a question of law outside of the province of the jury (see People v Hamlin, 71 NY2d 750, 761-762; People v Conklin, 145 AD2d 20, 25, lv denied 74 NY2d 738), but this objection was overruled. The reasoning was that the defendant’s state of mind might negative the required intent for the charge of <mask> on the first police officer (see People v Finger, 266 AD2d 561, affd 95 NY2d 894; People v Boyd, 256 AD2d 350; People v Leonardo, 89 AD2d 214, affd 60 NY2d 683). At this juncture the statement was appropriate (see People v Valentin, 211 AD2d 509, lv denied 85 NY2d 944), and depending upon the proof at trial, any misconception could be corrected in the final charge to the jury (see People v Vinogradov, 294 AD2d 708, 709-710; People v Levy, 202 AD2d 242, 245).


What our case boils down to is a single swipe of a car key at a person's clothed torso from a few feet away with unknown force. No other court has upheld an <mask> conviction on such scant evidence. A survey of the published cases where everyday items were found to have been used in a manner likely to kill or severely injure is illustrative of what an aberration this case is. In People v. Russell (1943) 59 Cal.App.2d 660, 139 P.2d 661, the defendant used a fingernail file to slash the *691victim's face, causing a large gash requiring 11 stitches. In People v. White (1963) 212 Cal.App.2d 464, 28 Cal.Rptr. 67, the defendant bashed the victim's head with a rock, causing a two-inch gouge that penetrated "through all layers of the scalp ... to the bone." ( Id. at p. 465, 28 Cal.Rptr. 67.) In People v. Helms (1966) 242 Cal.App.2d 476, 51 Cal.Rptr. 484, the defendant smothered the victim's face with a pillow "for several minutes." ( Id. at p. 478, 51 Cal.Rptr. 484.) In People v. Richardson (1959) 176 Cal.App.2d 238, 1 Cal.Rptr. 306, the defendant repeatedly slashed the victim's face and head with a razor blade, causing cuts that required 25 to 30 sutures. In People v. Lee (1937) 23 Cal.App.2d 168, 72 P.2d 572, the defendant hit the victim "several times over the head" with a pipe. ( Id. at p. 169, 72 P.2d 572.)


I, D. Arnold, a peace officer employed by Houston Police Department do solemnly swear that I have reason to believe and do believe that on the property of 2501-C #2 Central Parkway Houston, Harris County, Texas (Target Location), with the authority to search for and to seize any and all ITEMS CONSITUTING [sic] EVIDENCE CONSTITUTING <mask> AND ROBBERY that may be found therein including, but not limited to all DNA and items that may contain biological material; fingerprints; hair fiber(s); audio/video surveillance video and/or video equipment; instrumentalities of the crime including firearm(s) and ballistics evidence; gasoline container(s), lighter(s), tap, zip tie(s), van; fruits of the crime including wallet(s), suitcase, briefcase, money, documents establishing identity of Complainant(s) and/or Suspect(s) *226such as paper(s), license(s), cell phone(s). The affidavit also described the location:


In this case, to obtain a conviction for <mask>, the State was required to prove beyond a reasonable doubt that Venegas intentionally, knowingly, or recklessly caused serious bodily injury to Ramos by failing to maintain a reasonable speed or driving in a manner that disregarded the safety of other motorists on the roadway. See TEXAS PENAL CODE ANN . §§ 22.01(a)(1), 22.02(a)(1) (West 2011 & Supp. 2017). "Bodily injury" means "physical pain, illness, or any impairment of physical condition." Id. § 1.07(a)(8) (West Supp. 2017). "Serious bodily injury" is "bodily injury that creates a substantial risk of death or that causes death, serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ." Id. § 1.07(a)(46).


*419The defendant was first charged with the crimes of burglary in the first degree, assault in the second degree, criminal possession of a weapon in the second degree and criminal possession of a weapon in the third degree, and was released on bail. While these matters were pending on the Trial Calendar, the defendant was allegedly involved in a shoot-out with police officers. As a consequence of this incident, the defendant is now charged with the crimes of attempted <mask> upon a police officer, criminal possession of a weapon in the second degree and criminal possession of a weapon in the third degree.


What our case boils down to is a single swipe of a car key at a person's clothed *873midsection from a few feet away with unknown force. No other court has upheld an <mask> conviction on such thin evidence. A survey of the published cases where everyday items were found to have been used in a manner likely to kill or severely injure is illustrative of what an aberration this case is. In People v. Russell (1943) 59 Cal.App.2d 660, 139 P.2d 661, the defendant used a fingernail file to slash the victim's face, causing a large gash requiring 11 stitches. In People v. White (1963) 212 Cal.App.2d 464, 28 Cal.Rptr. 67, the defendant bashed the victim's head with a rock, causing a two-inch gouge that penetrated "through all layers of the scalp ... to the bone." ( Id. at p. 465, 28 Cal.Rptr. 67.) In People v. Helms (1966) 242 Cal.App.2d 476, 51 Cal.Rptr. 484, the defendant smothered the victim's face with a pillow "for several minutes." ( Id. at p. 478, 51 Cal.Rptr. 484.) In People v. Richardson (1959) 176 Cal.App.2d 238, 1 Cal.Rptr. 306, the defendant repeatedly slashed the victim's face and head with a razor blade, causing cuts that required 25 to 30 sutures. In People v. Lee (1937) 23 Cal.App.2d 168, 72 P.2d 572, the defendant hit the victim "several times over the head" with a pipe. ( Id. at p. 169, 72 P.2d 572.)


204 (Fruits) [evidence of prior threats the defendant made against his mother, and other prior acts of violence against her were similar to the charged offense involving his mother and thus highly probative]; People v. Hoover (2000) 77 Cal.App.4th 1020, 1029 (Hoover) [§ 1109 evidence relevant to domestic violence was admissible in view of the fact that the evidence involved the defendant’s history of similar conduct against the same victim and the evidence was not unduly inflammatory].) Defendant emphasizes differences between the prior acts and the charged offenses such as the time of day and the fact that he previously only entered the attached garage and not the residence itself. He also asserts that, during the prior acts, he did not carry a weapon as alleged regarding the charged crimes. We conclude that these differences were insignificant compared to the fact that he victimized the same people, at the same place, employed a similar means of entry causing similar damage, repeatedly violated a restraining order and, with the exception of one incident, left the scene before the police arrived. In the context of this case, these similarities were substantial enough to have sufficient probative value. Regarding the charged burglary count, as stated ante, the prosecution proceeded on the theories that, when defendant entered the house, his intent was to commit <mask> or theft. The circumstantial evidence pointed to defendant as the person who stole items of property from the home on at least two prior occasions. Additionally, in another prior act, defendant went to the house and attempted to assault his brother with a motor vehicle. These prior acts were relevant to defendant’s intent when he entered into the house on March 29, 2018. 7


Appellant was originally indicted for <mask> on a family member with a deadly weapon. The indictment alleged that Appellant caused serious bodily injury to Rene Caso. Testimony would later reveal that Caso lost his right eye as a result of the assault. The original indictment identified the deadly weapon as either a vase, a tissue box, or Appellant's hand. The State later struck the deadly weapon language from the indictment. But the State also enhanced the punishment range by claiming that Appellant had previously been convicted of another felony offense some seven years before the date of the aggravated assault.


On July 28, 2020, the Appellant was charged by information with two counts of <mask> with a deadly weapon. That same day, he pled guilty to the offenses. Pursuant to the plea agreement,the Appellant was to receive concurrent six-year sentences as a Range I, standard offender with the trial court to consider his application for judicial diversion and the manner of service ofthe sentences.


The Petitioner, Brian C. Frelix, appeals from the Williamson County Circuit Court’s denial of his petition for post-conviction relief from his convictions for four counts of aggravated robbery, four counts of <mask>, aggravated burglary, and theft of property valued at $1000 or more but less than $10,000, for which he is serving an effective thirty- eight-year sentence. On appeal, he contends that (1) the post-conviction court erred in not continuing the hearing until the Petitioner could appear in person following the Petitioner’s positive COVID-19 test and (2) the court erred in denying his post-conviction claim for ineffective assistance of counsel. We reverse the judgment of the post-conviction court and remand for a hearing at which the Petitioner is present.


I realize that using the term "one continuous assaultive transaction" may be viewed as an attempt to resurrect a form of the carving doctrine, which this Court abandoned in favor of the Blockburger double jeopardy test. See Ex parte McWilliams , 634 S.W.2d 815, 817 (Tex. Crim. App. 1982) (op. on reh'g) (holding that the carving doctrine is unsound because its application has been erratic and it is not mandated by the Double Jeopardy Clauses of either the United States or Texas Constitutions); Blockburger v. United States , 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). However, under the facts of this case, I would hold that the continuous assaultive transaction rule applies just as it did in 1905 when this Court decided Paschal v. State , 49 Tex.Crim. 111, 90 S.W. 878 (1905). In Paschal , the evidence showed that Appellant, who was angry with his wife, went to find her at her friend's house. He was carrying a paper sack full of oranges, and threw one at his wife. It struck her between the eyes and she fell. "He then hit her with his fist, knocked her down, and kicked her, and then threw a rock and hit a cow." Then, he "stamped and choked his wife." She ran into the hogpen, and he followed and hit her again. She then ran to the house, and he caught her at the fence and cut her clothes. She then ran into the house and he jerked her to the floor and kicked her. He ran outside and grabbed a stick and came back into the house, but he did not hit her with the stick. The Court held that this was one <mask>. Although the "continuous assaultive transaction" test is disfavored because it has been "randomly applied," see Ex parte McWilliams , 634 S.W.2d at 823, I would hold that it is not an extinct concept, it applies under these facts, and its application here is not inconsistent with Blockburger since double jeopardy is not an issue in this case.


While he pleaded to two separate counts in admitting his culpability, the defendant acknowledged through the allocution that what he did was one single act — bank robbery with a deadly weapon. It would be sophism to adopt any other conclusion. This is reinforced by reading the portion of the plea minutes (pp 3, 5) where the defendant admitted using a firearm to commit a felony, namely, the bank robbery. The court is entitled to evaluate this admission in the most logical light in reaching a just result. No court is ever required to distort the truth or use a strained application of facts in coming to a decision. The defendant should not be permitted to escape the enhanced punishment of the law as to the finding of guilty on the charge of <mask> on a police officer through a legal subterfuge.


*548In People v. Cage (2007) 40 Cal.4th 965, 56 Cal.Rptr.3d 789, 155 P.3d 205 ( Cage ), our Supreme Court applied Crawford, Davis, and Hammon in a child abuse case. The defendant in Cage was convicted of <mask> for slashing her 15-year-old son across the face with a shard of glass while her mother held the child down. ( Id. at pp. 970, 972, 56 Cal.Rptr.3d 789, 155 P.3d 205.) The victim was taken to a hospital, where a surgeon asked him for purposes of treating him, "what happened?" The victim responded " 'he had been held down by his grandmother and cut by his mother.' " ( Id. at p. 972, 56 Cal.Rptr.3d 789, 155 P.3d 205.)


In a prosecution for <mask>, the State need only prove the defendant harbored a culpable mental state as to the underlying assault. Accordingly, even if Rodriguez reasonably believed that his actions would cause only "simple" bodily injury, his mistake about the severity of Francisco's injuries did not negate any elemental mental state.58 A mistake-of-fact instruction on these grounds would have been contrary to Section 8.02(a). The court of appeals' judgment is reversed, and the trial court's judgment is affirmed.


*385(a) A person commits an offense if, with the intent to establish, maintain, or participate in a combination or in the profits of a combination or as a member of a criminal street gang, the person commits or conspires to commit one or more of the following: (1) murder, capital murder, arson, aggravated robbery, robbery, burglary, theft, aggravated kidnapping, kidnapping, <mask>, aggravated sexual assault, sexual assault, continuous sexual abuse of young child or children, solicitation of a minor, forgery, deadly conduct, assault punishable as a Class A misdemeanor, burglary of a motor vehicle, or unauthorized use of a motor vehicle; (2) any gambling offense punishable as a Class A misdemeanor; (3) promotion of prostitution, aggravated promotion of prostitution, or compelling prostitution; (4) unlawful manufacture, transportation, repair, or sale of firearms or prohibited weapons; (5) unlawful manufacture, delivery, dispensation, or distribution of a controlled substance or dangerous drug, or unlawful possession of a controlled substance or dangerous drug through forgery, fraud, misrepresentation, or deception; (5-a) causing the unlawful delivery, dispensation, or distribution of a controlled substance or dangerous drug in violation of Subtitle B, Title 3, Occupations Code; (6) any unlawful wholesale promotion or possession of any obscene material or obscene device with the intent to wholesale promote the same; (7) any offense under Subchapter B, Chapter 43,1 depicting or involving conduct by or directed toward a child younger than 18 years of age; (8) any felony offense under Chapter 32; (9) any offense under Chapter 36; (10) any offense under Chapter 34, 35, or 35A; (11) any offense under Section 37.11(a); (12) any offense under Chapter 20A; (13) any offense under Section 37.10; (14) any offense under Section 38.06, 38.07, 38.09, or 38.11; (15) any offense under Section 42.10; (16) any offense under Section 46.06(a)(1) or 46.14; (17) any offense under Section 20.05 or 20.06; or (18) any offense classified as a felony under the Tax Code.32 Additionally, Section 71.01(a) defines the term "combination" as follows


Darrious Mathis was charged in a seven-count indictment with crimes including kidnapping, false imprisonment, and <mask>. Count 7 of the indictment, charging Mathis with possession of a firearm by a first offender probationer, was severed from the other counts at trial. The jury rendered guilty verdicts on Counts 1 through 6, and the trial court sentenced Mathis on those counts. Count 7 was never presented to the jury. More than a year after sentencing, the trial court entered an order placing Count 7 on the court’s Administrative Dead Docket, and the record before us shows no further proceedings as to that count. Subsequently, the trial court denied Mathis’s amended motion for new trial. Mathis now seeks to appeal the order denying this motion. We lack jurisdiction. “[W]hen a count is dead-docketed, it remains pending below even if it is not being actively litigated. And our precedent unequivocally holds that when a count is pending below, so is the case of which that count is a part.” Seals v. State, 311 Ga. 739, 748 (3) (b) (860 SE2d 419) (2021). When a case remains pending below, it “cannot be appealed as a final judgment.” Id. at 739. Instead, it may be appealed only by obtaining a certificate of immediate review, and the failure to do so requires dismissal of the appeal. Id. at 739, 748 (3) (b); see also OCGA § 5- 6-34 (b). Here, because Count 7 remains pending below, the case is not final, and the order denying Mathis’s amended motion for new trial is not a final judgment that is appealable under OCGA § 5-6-34 (a) (1). Because Mathis did not obtain a certificate of immediate review, his appeal must be dismissed. See Seals, 311 Ga. at 739, 748 (3) (b).


The court in Corrigan also relies on In re Jonathan R. (2016) 3 Cal.App.5th 963, 971, in which the Court of Appeal concluded section 245, subdivision (a)(1) and (4), created separate offenses of assault with a deadly weapon and assault by means of force likely to produce great bodily injury, respectively, because under Gonzalez each subdivision stated the elements of the offense. (Corrigan, supra , 34 Cal.App.5th at p. ----, 245 Cal.Rptr.3d 756, 2019 WL 1513202, *5.) But the Court of Appeal in People v. Brunton (2018) 23 Cal.App.5th 1097, 233 Cal.Rptr.3d 686 declined to follow In re Jonathan R. , noting the Supreme Court's holding in Vidana supported consideration of the legislative history, which the Brunton court concluded supported its holding the Legislature did not intend by its 2011 amendment to section 245 to create two separate offenses of <mask>. (Brunton , at pp. 1106-1107, 233 Cal.Rptr.3d 686.) We likewise follow Vidana and conclude the legislative history and statutory scheme show the Legislature intended to create a single offense of simple arson.


In Crumpton , the Court of Criminal Appeals held that the trial court properly entered a deadly weapon finding because the jury, in finding the defendant guilty of criminally negligent homicide, necessarily found that he used a vehicle as a deadly weapon. 301 S.W.3d at 664. The court reasoned: "If a deadly weapon is anything that is capable of causing death or serious bodily injury, and the indictment alleges that the defendant caused death or serious bodily injury [by striking the complainant's vehicle with her vehicle], and the jury finds the defendant guilty as charged in the indictment, the verdict is necessarily a finding that a deadly weapon was used." Id. at 665 ; see also Blount v. State , 257 S.W.3d 712, 714 (Tex. Crim. App. 2008) (holding that allegation of <mask> by causing serious bodily injury with weapon or instrument "necessarily implies the use of a deadly weapon," which is anything that in the manner of its use or intended use is capable of causing serious bodily injury).


during the charged event: intent to commit <mask> and intent to steal. Because section 1109 allows prior acts of domestic violence when a defendant is accused of “ ‘an offense involving domestic violence,’ ” the issue defendant raises is whether a burglary based on an intent to steal theory is an offense involving domestic violence. Defendant argues it is not, because such conduct does not constitute abuse under either the Penal Code or Family Code definitions. We disagree. The Attorney General relies on People v. James (2010) 191 Cal.App.4th 478 (James), a case that supports only a determination that burglary based on entry with the intent to commit an aggravated assault or threat to cause injury is a crime “ ‘involving domestic violence’ ” within the meaning section 1109. There, the defendant broke into his former girlfriend’s home and made threatening statements towards her, placing her in reasonable apprehension of imminent serious bodily injury. (James, at p. 483.) Noting the Penal Code section 13700, subdivision (a) definition of abuse includes “ ‘intentionally or recklessly causing or attempting to cause bodily injury, or placing another person in reasonable apprehension of imminent serious bodily injury to himself or herself, or another,’ ” the James court reasoned that, under the circumstances of that case, burglary was an act of domestic violence for purposes of Penal Code section 13700, subdivision (a). (James, at pp. 482-483.) In this regard, the court held: “Although the crime of burglary is not a crime of domestic violence on its face, the trial court properly found that under the facts of the case, the burglary was a qualifying offense allowing the People to seek to present propensity evidence under section 1109.” (James, at p. 484.) Here, defendant entered into the house his mother and brother shared in the middle of the night while they were in their beds. He was then seen running up the stairs holding a kitchen knife. For purposes of admissibility of the evidence, there was sufficient evidence to support the conclusion that defendant’s alleged actions would have placed his brother “in reasonable apprehension of imminent serious bodily injury to himself or . . . another.” (Pen. Code, § 13700, subd. (a).) Thus, under the reasoning of James, the


The real party in interest, Angelica Hernandez, is charged by indictment in cause number 20130D02077 with three counts of <mask> of a child and one count of indecency with a child. The indictment alleged that Hernandez, acting in concert with Osvaldo Araiza, provided alcohol to her sixteen-year-old biological daughter, B.P., and to another child, and Araiza penetrated B.P.'s sexual organ with his finger and penis, contacted her sexual organ with his mouth, and touched her breast.


We conclude that deadly conduct, as a matter of law, is a lesser-included offense of the charged offense of <mask> by threat where it was alleged that appellant used or exhibited a motor vehicle as a deadly weapon. Because the court of appeals held otherwise, we reverse the judgment of the court of appeals and remand this case to that court for it to conduct the second step of the two-step lesser-included offense analysis.


Robertson was arrested on November 18, 2016, and was subsequently charged with residential burglary and <mask>. He was on parole at the time of his arrest and was later found to have ultimately violated the terms of his parole, so he remained in the State's custody from the time of his arrest through his jury trial on March 27, 2018, 494 days.


caused the death of said Clarence Wayne Harris, by shooting a firearm at or near Clarence Wayne Harris or Amanda Harris and the defendant was in the course of intentionally or knowingly committing or attempting to commit a felony, namely, Stalking or <mask>, and the death of Clarence Wayne Harris was caused while the defendant and [sic] then you will find the defendant, SAYANTAN GHOSE, guilty of murder, as charged in the indictment. The charge also allowed the jury to find appellant not guilty of murder but to consider appellant’s guilt regarding a lesser-included offense of aggravated assault. The charge provided that “[a] person commits aggravated assault if the person intentionally, knowingly, or recklessly causes bodily injury to another and uses or exhibits a deadly weapon during the commission of the assault.”


Defendant asserts that the trial court abused its discretion in admitting the prior acts under section 1101, subdivision (b). He asserts that this evidence was not relevant to prove he entered the home with the intent to steal property or commit an <mask>, or to prove he had knowledge of the restraining order in effect at the relevant time. This is so, according to defendant, because the prior incidents were insufficiently similar to be probative, and further that the prior acts of alleged theft were not established by a preponderance of the evidence. He also asserts that this evidence was inadmissible on section 352 grounds. Again, we disagree. 2. Analysis Section 1101, subdivision (a) generally prohibits evidence of character to prove conduct. Apart from the exception under section 1109, subdivision (b) of section 1101 provides that “evidence of a prior uncharged act may also be admissible to prove a disputed material fact—other than a criminal disposition—such as motive, intent, knowledge, or the absence of mistake or accident.” (People v. Wang (2020) 46 Cal.App.5th 1055, 1075.) Our high court has stated: “The least degree of similarity (between the uncharged act and the charged offense) is required in order to prove intent. . . . In order to be admissible to prove intent, the uncharged misconduct must be sufficiently similar to support the inference that the defendant ‘ “probably harbor[ed] the same intent in each instance.” ’ ” (People v. Ewoldt (1994) 7 Cal.4th 380, 402 (Ewoldt).) As our high court has explained, “the recurrence of a similar result tends to negate an innocent mental state and tends to establish the presence of the normal criminal intent.” (People v. Jones (2011) 51 Cal.4th 346, 371; see also Ewoldt, at p. 402.) “[T]he similarities between the two events must be substantial enough to have probative value.” (Winkler, supra, 56 Cal.App.5th at p. 1145.) We conclude the prior acts were sufficiently similar for admissibility under section 1101, subdivision (b). (See generally People v. Fruits (2016) 247 Cal.App.4th 188, 203-


Specifically, the severed charges included counts: second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a)(1) (count eight); second-degree unlawful possession of a weapon with a permit, N.J.S.A. 2C:39- 5(b)(1) (count nine); third-degree possession of a controlled dangerous substance (CDS) (heroin), N.J.S.A. 2C:35-10(a)(1) (count ten); third-degree possession of a CDS (heroin) with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(3) (count eleven); second-degree possession of a weapon while committing certain CDS offenses, N.J.S.A. 2C:39-4(a)(1) (count twelve); and fourth-degree <mask>, N.J.S.A. 2C:12-1(b)(5)(a) (count thirteen).


The United States Probation Office recommended classifying Lawson as a career offender because he had two prior state court convictions—one for a crime of violence (a 2011 Florida conviction for <mask> of a law enforcement officer with a firearm) and another for a controlled substance offense (a 2004 Florida conviction for possession, sale, or delivery of cocaine within 1000 feet of a place of worship). See U.S.S.G. § 4B1.1(a). As USCA11 Case: 20-14776 Date Filed: 01/14/2022 Page: 4 of 17


In 2017, Michael C. Wilkin pleaded guilty to four counts of <mask> and was sentenced to ten years to serve one. In 2021, Wilkin filed a petition seeking to be retroactively sentenced as a first offender, which the trial court denied. Wilkin filed this direct appeal, however, we lack jurisdiction. Under OCGA § 17-10-1 (f), a court may modify a sentence during the year after its imposition or within 120 days after remittitur following a direct appeal, whichever is later. Frazier v. State, 302 Ga. App. 346, 348 (691 SE2d 247) (2010). Once this statutory period expires, as here, a trial court may modify only a void sentence. Id. A sentence is void if the court imposes punishment that the law does not allow.Jones v. State, 278 Ga. 669, 670 (604 SE2d 483) (2004). When a sentence falls within the statutory range of punishment, it is not void. See id. Moreover, an appeal does not lie from the denial of a motion to modify a sentence filed outside the statutory time period unless the motion raises a colorable claim that the sentence is, in fact, void. Frazier, 302 Ga. App. at 348. Wilkin argues that he should have been sentenced as a first offender, but he does not contend that his sentence exceeded the statutory maximum. See OCGA § 16-5-21 (b) (providing that aggravated assault is punishable by imprisonment for one to twenty years). Thus, Wilkin has not set forth a colorable void-sentence claim. Accordingly, this appeal is hereby DISMISSED.


We note that the Sentencing Guidelines have been updated since Johnson. Today, the Sentencing Guidelines also contemplate certain enumerated offenses, including “<mask>,” can qualify as crimes of violence. U.S.S.G. § 4B1.1(a)(2). We requested supplemental briefing in this case after Borden issued. Yet the parties have not addressed whether Texas assault on a public servant qualifies as aggravated assault, and thus a crime of violence, under the updated Sentencing Guidelines. Nor did the district court give that as an alternative reason for Bates having committed a crime of violence under the Sentencing Guidelines. Therefore, we will not address the issue ourselves and express no opinion on its applicability on remand.


murder, <mask>, first-degree burglary, first-degree home invasion, conspiracy to commit robbery, armed robbery, false imprisonment, first-degree cruelty to children, and possession of a firearm by a convicted felon. Appellant was re-indicted for the same offenses in August 2015. In February 2016, Appellant was tried jointly with Stokes and Scott. Appellant was convicted of all counts except malice murder. The trial court sentenced Appellant to life in prison without the possibility of parole, plus a total of 50 consecutive years to serve. Appellant filed a timely motion for new trial on March 1, 2016, which he amended through new counsel on July 2, 2018, and again on May 19, 2019. On February 5, 2020, the trial court held an evidentiary hearing on the motion for new trial, and on March 3, 2020, the trial court denied Appellant’s motion for new trial. Appellant filed a timely notice of appeal to this Court on March 10, 2020. The case was docketed to this Court’s term beginning in August 2021 and orally argued on November 9, 2021. when she heard Schrier cry out, followed by booming sounds. Smith


Two Florida statutes were cited on Cobb's journal entry of judgment for his Florida battery conviction: Fla. Stat. § 741.28 and Fla. Stat. § 784.03. The first statute defines domestic violence under Florida law as: "any assault, <mask>, battery, aggravated battery, sexual assault, sexual battery, stalking, aggravated stalking, kidnapping, false imprisonment, or any criminal offense resulting in physical injury or death of one family or household member by another family or household member." (Emphasis added.) Fla. Stat. § 741.28(2). The second statute defines battery under Florida law as (1) actually and intentionally touching or striking another person against their will, or (2) intentionally causing bodily harm to another person. Fla. Stat. § 784.03(1)(a). Because Cobb was convicted of domestic felony battery in Florida, the first alternate


<mask> may be committed in only two ways: (1) by causing serious bodily injury; or (2) by using or exhibiting a deadly weapon during the commission of the assault. Tex.Penal Code Ann. § 22.02(a)(1),(2). Each of these necessarily involve the use of a deadly weapon. Blount v. State , 257 S.W.3d 712, 714 (Tex.Crim.App. 2008). The first way of committing aggravated assault-causing serious bodily injury-necessarily implies the use of a deadly weapon, which is "anything that in the manner of its use or intended use is capable of causing death or serious bodily injury." Tex.Penal Code Ann. § 1.07(17)(B) (West Supp. 2016). The second *637way of committing aggravated assault expressly describes use or exhibition of a deadly weapon.


STEGNER, Justice. Mario Reyes appeals a jury verdict convicting him of domestic battery, attempted strangulation, and <mask>. Reyes appealed to the Idaho Court of Appeals, which affirmed his convictions. Reyes petitioned for review by this Court, which we granted. On appeal, Reyes requests that his convictions be vacated. Reyes first argues that several evidentiary issues, including the admission of irrelevant and prejudicial evidence, rendered his trial unfair. Reyes next argues that the district court abused its discretion when it found that the victim was unavailable to testify at trial under Idaho Rule of Evidence 804(a)(5) and allowed her preliminary hearing testimony to be read into the record. Additionally, Reyes argues that the prosecutor’s closing argument impermissibly implied that the victim did not testify because she feared Reyes. Finally, Reyes argues that these errors, when taken together, deprived him of his right to due process and a fair trial. For the reasons set forth below, we vacate Reyes’ convictions.


The defendant’s counsel in his opening statement claimed that the defendant had the right to refuse to stop for the bicycle police officer because the latter lacked probable cause, probably relying upon the cases of People v Spencer (84 NY2d 749, cert denied 516 US 905) and People v Hoffman (283 AD2d 928, lv denied 96 NY2d 919).1 The prosecutor objected that this was a question of law outside of the province of the jury (see People v Hamlin, 71 NY2d 750, 761-762; People v Conklin, 145 AD2d 20, 25, lv denied 74 NY2d 738), but this objection was overruled. The reasoning was that the defendant’s state of mind might negative the required intent for the charge of <mask> on the first police officer (see People v Finger, 266 AD2d 561, affd 95 NY2d 894; People v Boyd, 256 AD2d 350; People v Leonardo, 89 AD2d 214, affd 60 NY2d 683). At this juncture the statement was appropriate (see People v Valentin, 211 AD2d 509, lv denied 85 NY2d 944), and depending upon the proof at trial, any misconception could be corrected in the final charge to the jury (see People v Vinogradov, 294 AD2d 708, 709-710; People v Levy, 202 AD2d 242, 245).


But this particular variance between the pleading and the proof should not be considered to be material in the sufficiency analysis because it would be patently immaterial under Johnson . 364 S.W.3d at 292. The variance regarding Appellant's use of his hands would be one describing only the manner and means by which the bodily injury was caused. Under Johnson , this would fall into the second category of variance, a "non-statutory allegation that describes the offense in some way." Id. at 295. Such a variance is material only when it converts the offense proven at trial into a different offense than what was pled in the charging instrument, which could potentially subject a defendant to another prosecution for the same offense. Id. There is no such danger here, however, because the fact that Appellant caused Molien to suffer bodily injury with his hands not by striking her with them, but instead by choking her,5 does not make the <mask> that was proved at trial different than the aggravated assault that was pled in the indictment. What was pled and proved was that Appellant committed aggravated assault against Molien by causing her bodily injury and that he used water as a deadly weapon while doing so. The indictment did not specify the precise injury that would be shown by the evidence, and exactly how Appellant used his hands to cause the bodily injury is inconsequential to the legal sufficiency analysis.


A debate arose at sentencing as to whether the firearm used in connection with another felony must be the same firearm that was the subject of the felon-in-possession charge. After a brief recess, Dexter’s attorney conceded that the firearm need not be the same. Dexter appears to have forfeited that argument, but in any event, the district court concluded that the weapon used in connection with the <mask> was the same weapon subject to the felon- in-possession charge. Dexter does not argue that the alleged conduct—firing a shotgun into Sesley’s apartment—would not be, if true, a felonious aggravated assault. We therefore assume that the conduct qualifies as a felony.


As relevant to this case, a person commits capital murder if he intentionally causes the death of an individual in the course of committing or attempting to commit robbery. TEX. PENAL CODE §§ 19.02(b)(1), 19.03(a)(2), 29.02 ; see Nickerson v. State , 478 S.W.3d 744, 755-56 (Tex. App.-Houston [1st Dist.] 2015, no pet.). A person commits assault if he intentionally, knowingly, or recklessly causes bodily injury to another. TEX. PENAL CODE § 22.01(a)(1). Using or displaying a deadly weapon during the commission of an assault elevates the offense to <mask>. Id. § 22.02(a)(2). A firearm is a deadly weapon. See id. § 1.07(a)(17).


2 For example, in the domestic abuse situation that resulted in Appellant’s <mask> conviction, Appellant may have lied to the victim to gain access to her and facilitate the aggravated assault. See Davis, 17 A.3d at 396 (“if the crime is not inherently crimen falsi, this Court then inspects the underlying facts that led to the conviction to determine if dishonesty or false statement facilitated the commission of the crime”).


I realize that using the term "one continuous assaultive transaction" may be viewed as an attempt to resurrect a form of the carving doctrine, which this Court abandoned in favor of the Blockburger double jeopardy test. See Ex parte McWilliams , 634 S.W.2d 815, 817 (Tex. Crim. App. 1982) (op. on reh'g) (holding that the carving doctrine is unsound because its application has been erratic and it is not mandated by the Double Jeopardy Clauses of either the United States or Texas Constitutions); Blockburger v. United States , 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). However, under the facts of this case, I would hold that the continuous assaultive transaction rule applies just as it did in 1905 when this Court decided Paschal v. State , 49 Tex.Crim. 111, 90 S.W. 878 (1905). In Paschal , the evidence showed that Appellant, who was angry with his wife, went to find her at her friend's house. He was carrying a paper sack full of oranges, and threw one at his wife. It struck her between the eyes and she fell. "He then hit her with his fist, knocked her down, and kicked her, and then threw a rock and hit a cow." Then, he "stamped and choked his wife." She ran into the hogpen, and he followed and hit her again. She then ran to the house, and he caught her at the fence and cut her clothes. She then ran into the house and he jerked her to the floor and kicked her. He ran outside and grabbed a stick and came back into the house, but he did not hit her with the stick. The Court held that this was one <mask>. Although the "continuous assaultive transaction" test is disfavored because it has been "randomly applied," see Ex parte McWilliams , 634 S.W.2d at 823, I would hold that it is not an extinct concept, it applies under these facts, and its application here is not inconsistent with Blockburger since double jeopardy is not an issue in this case.


(i)(a) That a juvenile has been adjudicated by the court to be dependent-neglected and has continued to be out of the custody of the parent for twelve (12) months and, despite a meaningful effort by the department to rehabilitate the parent and correct the conditions that caused removal, those conditions have not been remedied by the parent. .... (vii)(a) That other factors or issues arose subsequent to the filing of the original petition for dependency-neglect that demonstrate that placement of the juvenile in the custody of the parent is contrary to the juvenile's health, safety, or welfare and that, despite the offer of appropriate family services, the parent has manifested the incapacity or indifference to remedy the subsequent issues or factors or rehabilitate the parent's circumstances that prevent the placement of the juvenile in the custody of the parent. .... (ix)(a) The parent is found by a court of competent jurisdiction, including the juvenile division of circuit court, to: (3)(A) Have subjected any juvenile to aggravated circumstances. (B) "Aggravated circumstances" means: (i) ... [A] determination has been made by a judge that there is little likelihood that services to the family *599will result in successful reunification. At the termination hearing, it was established that Steven had been incarcerated for a total of nine or ten months during the fifteen months since emergency removal of the children. Most recently, Steven was in prison between December 14, 2016, and May 23, 2017, for violating the terms of his probation related to a 2012 conviction for <mask> committed against Kathy. For the probation violations, Steven was sentenced to three years in prison followed by a three-year suspended imposition of sentence. He was paroled on May 23, 2017. After his release, Steven moved into his father's house where he continued to reside as of the termination hearing held on July 10, 2017.


1990), superseded on other grounds by rule as stated in United States v. Spell, 44 F.3d 936, 939 (11th Cir. 1995). Under Georgia law, a person commits <mask> when he (1) commits a simple assault, and (2) there is an aggravat- ing factor present (such as the intent to murder, rape, or rob; or the use of a deadly weapon). O.C.G.A. § 16-5-21(a); see Smith v. Hardrick, 464 S.E.2d 198, 200 (Ga. 1995). A person commits simple assault under Georgia law when he either “[a]ttempts to commit a violent injury to the person of another” or “[c]ommits an act which places another in reasonable apprehension of immediately receiv- ing a violent injury.” O.C.G.A. § 16-5-20(a). A criminal offense with a mens rea of recklessness does not qualify as a “violent felony” under ACCA’s elements clause. See Borden v. United States, 141 S. Ct. 1817, 1825 (2021). After Borden, we reinstated our opinion in United States v. Moss, 920 F.3d 752 (11th Cir. 2019), which had been vacated after a grant of rehearing en banc. United States v. Moss, 4 F.4th 1292, 1292 (11th Cir. 2021). In Moss, we held that a conviction for Georgia aggravated assault under O.C.G.A. § 16-5-21(a)(2) was a crime of recklessness where it was based on the “places another in reasonable apprehension” variety of simple assault. Moss, 920 F.3d at 759. Because a felony “must be predicated on the intentional use of physical force” to qualify as a violent felony under ACCA’s elements clause, we con- cluded that Georgia aggravated assault is not categorically a violent felony. Id. (citing United States v. Palomino Garcia, 606 F.3d 1317, 1336 (11th Cir. 2010)). USCA11 Case: 21-10514 Date Filed: 01/27/2022 Page: 8 of 10


The source of the majority's mistake in relying on Simons appears to be People v. Page (2004) 123 Cal.App.4th 1466, 20 Cal.Rptr.3d 857 ( Page ). In *342that case, a different panel of our court concluded the defendant committed as-used <mask> when she held the sharpened tip of a pencil to the victim's neck during a robbery and told him not to involve the police because she "knew where he lived." ( Id. at p. 1469, 20 Cal.Rptr.3d 857.) Like the majority does here, the Page court cites the two-part Aguilar test, but then applies the Simons test. The court upheld the aggravated assault conviction on the ground a sharpened pencil could be dangerous and the defendant's use of the pencil while threatening the victim during a robbery demonstrated she intended to use it as a weapon if need be . ( Page , at p. 1473, 20 Cal.Rptr.3d 857.)


Mother initially denied knowing anyone named Ramone L. After admitting to knowing Ramone L., Mother denied being in a romantic relationship with Ramone L. and stated he was a friend. According to the records admitted at trial, Ramone L. is a man who was charged in December 2020 with <mask> after Mother was struck with a bullet from what police believed to be a .380 caliber gun. Mother described it as “a whole misunderstanding.” According to Mother, she was walking and a bullet bounced on her leg and Ramone L. and two other individuals had helped her. Ramone L. ultimately pled guilty to assault in January 2021, although Mother denied that she had a tumultuous relationship with him.


In March 2017, the State filed petitions in Harris County juvenile court alleging that appellant C.R., at age 16, engaged in delinquent conduct by committing aggravated robbery with a deadly weapon,1 evading detention,2 capital murder,3 and <mask> with a deadly weapon.4 Pursuant to section 54.02(a) of the Family Code, the State later petitioned the juvenile court to waive its exclusive original jurisdiction and transfer appellant to the criminal court for further proceedings on each of the charges, excluding evading detention. The juvenile court ordered a certification examination, which was conducted prior to the certification hearing.


In 2012, a jury found Willie Fletcher guilty of armed robbery, <mask>, and possession of a firearm during the commission of a felony. The trial court placed the final charge against Fletcher, possession of a firearm by a convicted felon, on the dead docket. Following entry of his sentence, Fletcher filed a motion for new trial. On April 5, 2021, the trial court denied Fletcher’s motion for new trial, and Fletcher filed this appeal. We, however, lack jurisdiction. In Seals v. State, 311 Ga. 739, 741 (2) (860 SE2d 419) (2021), the Supreme Court determined that a criminal case in which charges have been dead-docketed is non-final for purposes of appeal. Accordingly, in order to appeal the denial of his motion for new trial, Fletcher was required to comply with the interlocutory appeal procedure and obtain a certificate of immediate review. Id.; OCGA § 5-6-34 (b). His failure to do so deprives us of jurisdiction over this appeal, which is hereby DISMISSED.


In People v. Aguilar (1997) 16 Cal.4th 1023, 68 Cal.Rptr.2d 655, 945 P.2d 1204 ( Aguilar ), the California Supreme Court explained why-"except in those cases involving an inherently dangerous weapon" ( id. at p. 1035, 68 Cal.Rptr.2d 655, 945 P.2d 1204 )-the determination of whether an <mask> is committed under section 245(a)(1)'s deadly weapon clause or force-likely clause is "functionally identical." ( Aguilar , at p. 1035, 68 Cal.Rptr.2d 655, 945 P.2d 1204.) The Aguilar court reasoned a noninherently dangerous object becomes a deadly weapon (thereby satisfying section 245(a)(1)'s deadly weapon clause) only when it is used in a manner likely to produce death or great bodily injury (thereby also satisfying the force-*691likely clause). ( Aguilar , at p. 1029, 68 Cal.Rptr.2d 655, 945 P.2d 1204.)4


The juvenile court found that appellant's "record and previous history" weighed in support of discretionary transfer. The court found that appellant had a "lengthy history" of referrals to the Harris County Juvenile Probation Department, which started when he was 12 years old. In support of its findings, the court described the circumstances leading to five prior referrals to the Juvenile Probation Department, including an assault on his mother, criminal mischief, assault and harassment of a public servant, and burglary of a habitation. The order also noted that appellant had been placed in the Harris County Youth Village, the Burnett-Bayland Rehabilitation Center, and the Harris County Leadership Academy. The court found that after the referral for burglary of a habitation, appellant violated his probation, and he was transferred to the Texas Juvenile Justice Department. It noted that appellant was released in November 2016, and he was on parole when he allegedly committed capital murder and <mask>.


"Now consider the motives the guards have for lying. Here's a prisoner who talked back, acted out, caused a big disruption. The guards can't have that. They have to make an example. They have to put the prisoner in his place, show him who's boss. If they beat him, well, there are cameras and there might be consequences. How to punish the prisoner and get away with it? Nothing easier. Check the video, see what you can plausibly claim consistent with it. Then go to the D.A. Exaggerate what happened within the limits of that plausibility. Was my client just having a freakout over the deaths of his family members? Say it was a deliberate attack instead. Did one officer bump his head? Say Mr. Rodriguez viciously slammed him on the head with chains-once, twice, whatever (though it's better when the officers get their stories straight). Make sure you describe an <mask>, because that's a serious felony, not just an assault, which is a misdemeanor. Lock him up for a long, long time beyond the sentence he's already serving. That'll send a powerful message to any other prisoner who might think about crossing us.


The facts in this case show that the defendant not only committed Aggravated Robbery, a class Y felony, he did so with extreme indifference to the value of human life as evidenced by the <mask> allegation and testimony supporting that allegation. As stated above, the use of the weapon against an elderly disabled woman could have resulted in death or more serious physical injury. The Court believes that the countervailing factors show by clear and convincing evidence that the case should be retained in the criminal division of the circuit court. For reversal, appellant alleges deficiencies in the circuit court's consideration of the factors. First, although appellant acknowledges the seriousness of the offense, he contends that "there was no evidence to support a conclusion that society needed to be protected from Appellant beyond which Juvenile Court could handle." However, as set out in the order quoted above, the circuit court found that the allegations of the State and "especially the callous nature of the crime" required prosecution in the criminal division.


In Sanchez , the Court of Criminal Appeals held that the defendant's trial counsel performed deficiently when he advised the defendant incorrectly that he would be eligible for community supervision from the judge if he pleaded no contest to <mask> with a deadly weapon. Id. at 287-88.9 The Court further noted that counsel did not advise the defendant regarding the availability of deferred adjudication and did not file a motion requesting deferred adjudication. Id. at 288.


' Attempted Murder, (18 Pa.C.S.A. § 901(a)); Conspiracy — Attempted Murder, (18 Pa. C.S.A. § 903); <mask>, (18 Pa.C.S.A, § 2702(a)); Possession of an Instrument of Crime, (18 Pa.C.S.A. § 907(a)); Possession of Firearm Prohibted, (18 Pa.C.S.A, § 6105(a)(1)); Firearm not to Be Carried, (18 Pa. C.S.A, § 6106(a)(1)); Carrying of Firearms in Public in Philadelphia, (18 Pa.C.S.A. § 6108)), respectively. to the court’s shutdown from the novel coronavirus,” Appellant filed a responsive 1925(b)


The First Court of Appeals, in an opinion authored by Chief Justice Radack, disagreed. "[O]nce the trial court included self-defense in the abstract portion of the charge," the court said, self-defense became "law applicable to the case."10 This meant that "the trial court was required to apply that defensive issue properly" to the entire case-including the lesser offense of <mask>.11 Analyzing a number of factors, the court went on to determine that the omission of a self-defense instruction on aggravated assault was egregiously harmful, and reversed Mendez's aggravated-assault conviction.


Appellant Sayantan Ghose appeals judgments of conviction for murder and <mask> with a deadly weapon. Appellant presents two identical issues in both appeals. First, he argues that the trial court erroneously omitted from the jury charge certain instructions limiting the right of a citizen to make an arrest, which appellant contends deprived him of the correct application of the self- defense statute. Because appellant concededly did not object to the jury charge on this basis, we hold the issue is waived. Second, appellant contends that legally insufficient evidence supports the jury’s rejection of his self-defense theory. Concluding that the evidence is legally sufficient, we overrule this issue.


Based on our conclusion that the trial court misapplied enhancement factor (9) because no proof supported the factor, the trial court’s failure to find and even consider the mitigation proof offered concerning the defendant’s mental health, and the trial court’s failure to properly review and analyze the fines imposed by the jury, we determine the trial court abused its discretion in sentencing the defendant. Because we have determined enhancement factor (9) is not applicable and the defendant is entitled to some mitigation based on his mental health issues, we reverse the defendant’s sentence of fifteen years for <mask> and impose a sentence of thirteen years to be served concurrently with his sentence of eleven months and twenty-nine days in the Tennessee Department of Correction. Additionally, as noted, we remand the matter for review of the fines imposed by the jury.


<mask> is generally a second degree felony that carries a punishment range of two to twenty years. Tex.Penal Code Ann. § 22.02(b) (aggravated assault is generally a second degree felony); id. at § 12.33(a)(range of punishment). An aggravated assault may become a first degree felony when the defendant uses a deadly weapon. Id. at § 22.02(b)(1). In that sense, a deadly weapon finding is significant to a defendant. But the State here did not need the deadly weapon finding to reach the first degree felony punishment range. Because it enhanced the conviction with a prior felony to which Appellant pled true, the punishment range was already the same as a first degree felony. Id. at. § 12.42(b) (second degree felony punished as first degree felony when defendant has a prior felony conviction).7 As we excerpt above, the trial court explained this to Appellant on the record, and he chose to proceed with the open plea. For that reason, we find no Strickland harm even if his counsel misunderstood the import of dropping the deadly weapon language from the indictment