Posse Legal Updates

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United States v. Grimaldo Court: US Court of Appeals for the Ninth Circuit, Docket: 19-50151, Opinion Date: January 7, 2021. Defendant was arrested with nearly a quarter pound of methamphetamine and an inoperable pistol on his person. He was found guilty of simple possession of methamphetamine and pleaded guilty for being a felon-in-possession of a firearm. The district court sentenced defendant to 120-months in prison after applying a four-level sentencing enhancement for possession of a weapon in connection with another felony (simple possession) under USSG 2K2.1(b)(6)(B). After determining that defendant did not waive the issue, the Ninth Circuit held that the district court erred in concluding that defendant's pistol emboldened him to possess methamphetamine where the district court made no findings that defendant's firearm made his drug possession more likely. The panel vacated the 120-month sentence on the felon-in-possession count and remanded for further consideration. The panel also vacated the concurrent 36-month sentence for the possession count because the parties agree that the district court erred in exceeding the maximum applicable sentence. The panel remanded for further proceedings. Finally, the panel explained that nothing in the plain text of Fed. R. Crim. P. 32 requires excluding from a presentence report prior arrests for which there was no conviction. Therefore, the panel concluded that the district court did not abuse its discretion in denying defendant's motion to strike portions of his presentence report.

California v. Ruiz Court: California Courts of Appeal, Docket: D076580 (Fourth Appellate District), Opinion Date: December 30, 2020. Defendant-appellant Bryant Ruiz appealed the trial court’s order denying his motion to dismiss a petition to revoke parole filed by the Department of Corrections and Rehabilitation (CDCR) for lack of jurisdiction. Even though the parties stipulated Ruiz was not convicted of a serious felony and should have been placed on post-release community supervision (PRCS) rather than parole when he was released from prison, the trial court denied Ruiz’s motion to dismiss the petition as untimely under Penal Code section 3000.08 (l), because he did not challenge his supervision placement within 60 days of his release. To the Court of Appeal, Ruiz contended the application of section 3000.08 (l) in this instance infringed his constitutional rights to due process and equal protection. The Court of Appeal concluded the application of the 60-day limitation in this case indeed violated Ruiz’s procedural due process rights. Therefore, the order was reversed and the trial court was directed to enter a new order granting Ruiz’s motion to dismiss and transferring Ruiz from parole supervision to PRCS.

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United States v. Dixon Court: US Court of Appeals for the Ninth Circuit, Docket: 19-10112, Opinion Date: December 31, 2020. Defendant appeals the district court's partial denial of his motion to suppress evidence resulting from a search of his vehicle. At issue was whether the insertion of a car key into a lock on the vehicle's door for the sole purpose of aiding the police in ascertaining its ownership or control is a "search" within the meaning of the Fourth Amendment. The Ninth Circuit has previously held that it was not, applying the "reasonable expectation of privacy" test from Katz v. United States, 389 U.S. 347, 360 (1967) (Harlan, J., concurring). See United States v. $109,179 in U.S. Currency, 228 F.3d 1080, 1087–88 (9th Cir. 2000). However, in light of recent Supreme Court authority tying the Fourth Amendment's reach to the law of trespass, the panel must conclude that because "[t]he Government physically occupied private property for the purpose of obtaining information," United States v. Jones, 565 U.S. 400, 404 (2012), it conducted a search within the meaning of the Fourth Amendment. Therefore, a Fourth Amendment search occurs when an officer physically inserts a key into the lock of a vehicle for the purpose of obtaining information, as occurred in this case when an officer inserted the key specifically to learn whether defendant exercised control over the vehicle. On the record before the panel, it is unclear whether the officer had probable cause to believe that the particular vehicle into which he inserted the key was owned or controlled by defendant. The panel remanded for the district court to conduct an evidentiary hearing and to rule on the suppression motion in light of the Jones and Jardines principles. Finally, the panel held that the district court erred in finding that defendant was categorically ineligible for an acceptance-of-responsibility reduction on the ground that defendant did not accept responsibility for the greater offense of possession with intent to distribute. The panel explained that USSG 3E1.1(a) does not require that defendant admit to all the charged offenses. Consequently, in the event the district court upholds the search on remand and reinstates defendant's conviction, the district court shall conduct a resentencing so that it may make a factual finding regarding acceptance of responsibility in the first instance.

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CDCR’s Barring of Sex Offenders From Parole Consideration Struck Down

 12/28/2020--In In re Gadlin, the Supreme Court today strikes down Department of Corrections and Rehabilitation regulations that exclude from parole eligibility all inmates who have past or current convictions requiring sex offender registration. The court’s unanimous opinion by Chief Justice Tani Cantil-Sakauye holds such a conviction can’t disqualify those who, because they are currently imprisoned for nonviolent felonies, are otherwise entitled to parole consideration under Proposition 57, a 2016 initiative sponsored by then-Governor Jerry Brown to amend the state constitution. The court concludes, “nonviolent offender parole eligibility must be based on an inmate’s current conviction” and “an inmate may not be excluded from nonviolent offender parole consideration based on a current conviction for a registerable felony offense that the Department’s regulations have defined as nonviolent.” The court stresses that Proposition 57 and the court’s opinion concern only eligibility for parole evaluation and “does not require the release of any inmate.” The court affirms the Second District, Division Five, Court of Appeal.

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People v. Yanaga Court: California Courts of Appeal, Docket: B302291 (Second Appellate District), Opinion Date: December 14, 2020. Defendant appealed a post-judgment order denying his motion to strike a Penal Code section 12022.53 subdivision (d) firearm enhancement after the Court of Appeal remanded the matter for resentencing on the enhancement. The court reversed, concluding that the trial court prejudicially erred because it was unaware of the scope of its discretionary power. In this case, the trial court refused to consider defendant's post-judgment rehabilitative efforts in prison because it mistakenly believed it could consider only information before the original sentencing court.

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People v. France Court: California Courts of Appeal, Docket: A158609 (First Appellate District), Opinion Date: December 15, 2020. In 2018, France was charged as a felon in possession of a firearm (Penal Code section 29800(a)(1)); two prior strike allegations under sections 1170.12 and 667; and three enhancements under section 667.5(b) for having served prior prison terms. France pled guilty to the charge and one of the prior prison term enhancements and waived his entitlement to 403 days of custody credits, in exchange for dismissal of the rest of the enhancements and strike allegations. France stipulated to a sentence of three years in prison for the charge and one year for the enhancement; the plea deal specified that execution of the sentence would be suspended and France would be placed on three years of probation. The trial court sentenced France accordingly. A probation officer subsequently alleged France had violated the terms of his probation by committing misdemeanor domestic battery. After a hearing, the court found that France had violated his probation, lifted the stay of the suspended sentence, and ordered France committed to state prison for four years. The court of appeal modified the judgment. Senate Bill No. 136, enacted after France filed his notice of appeal, entitles him to have the one-year prior prison term enhancement stricken with no other changes to his negotiated sentence.

California v. Maxwell Court: California Courts of Appeal, Docket: C080890 (Third Appellate District), Opinion Date: December 11, 2020. Anthony Maxwell was convicted by jury of possessing methadone, drug paraphernalia, and on two occasions, possessing heroin with the intent to sell it. The trial court found true several allegations that lengthened the sentence for these offenses, including that defendant had a prior “strike” conviction, served a prior prison term, and committed one of the offenses while out on bail on another offense. The court sentenced defendant to 13 years in prison. On appeal, defendant argued: (1) the trial court wrongly denied his two motions to suppress evidence; (2) the court wrongly instructed the jury about “uncharged offenses” (that is, offenses that were discussed but not charged in this case); and (3) the court wrongly imposed several sentencing enhancements: an “on bail” enhancement - which the court imposed because defendant committed one of the offenses here while out on bail on another offense - and a prior prison term enhancement - which the court imposed because defendant served a prior prison term shortly before he committed the offenses here. After review of the trial court record, the Court of Appeal agreed with defendant in part. A sentencing enhancement for a prior prison term required, among other things, that the prior prison term be based on a felony conviction. "But that was not true of the prior prison term here." The Court found that although defendant served this prison term after being convicted of a felony, that felony conviction was reduced to a misdemeanor under Proposition 47 (the Safe Neighborhoods and Schools Act) before sentencing in this case. The trial court thus had no ground for increasing defendant’s sentence based on his serving this prior prison term. Judgment was modified to address this error, and judgment was affirmed as modified.

SUPREME COURT FURTHER LIMITS “NATURAL AND PROBABLE CONSEQUENCES” LIABILITY FOR MURDER

12/17/2020--In People v. Gentile, the Supreme Court today holds that, under 2018’s Senate Bill 1437, an accomplice cannot be liable for second degree murder just because the murder is the natural and probable consequence of the aided and abetted crime.  The legislation’s stated intent was, in part, “to ensure that murder liability is not imposed on a person who is not the actual killer, did not act with the intent to kill, or was not a major participant in the underlying felony who acted with reckless indifference to human life.” The court’s unanimous opinion by Justice Goodwin Liu decision concludes that SB 1437 “superseded” an earlier Supreme Court case that, although ruling natural and probable consequences liability cannot extend to first degree premeditated murder, left that liability in place for second degree murder (People v. Chiu (2014) 59 Cal.4th 155, 166). The court also decided that relief under SB 1437 is not available on direct appeal for defendants convicted before the legislation’s effective date.  Instead, they must petition for resentencing under Penal Code section 1170.95. Some district attorneys, but not the Attorney General, have challenged SB 1437’s validity under the California Constitution, with some success at the superior court level, but not in the Court of Appeal.  The Supreme Court has not agreed to decide that issue, and probably won’t unless a Court of Appeal finds the law unconstitutional. The court reverses the Fourth District, Division Two, Court of Appeal.  It agrees with seven other Court of Appeal decisions.

People v. Gentile Docket: S256698, Opinion Date: December 17, 2020. The Supreme Court held that Senate Bill 1437 bars a conviction for second degree murder under the natural and probable consequences theory and that the procedure set forth in Cal. Penal Code 1170.95 is the exclusive mechanism for retroactive relief and that, therefore, the ameliorative provisions of Senate Bill 1437 do not apply to nonfinal judgments on direct appeal. Among other things, Senate Bill 1437 amended Cal. Penal Code 188 to provide that in order to be convicted of murder, a principal in a crime shall act with malice aforethought. At issue in this appeal was the effect of this amendment on the natural and probable consequences doctrine as it applies to second degree murder. The Supreme Court remanded this matter to the court of appeal to affirm Defendant's second-degree murder conviction without prejudice to any petition for relief that Defendant may file under section 1170.95, holding (1) section 188(a)(3) bars conviction for second degree murder under a natural and probable consequences theory; and (2) the ameliorative provisions of Senate Bill 1437 do not automatically apply to nonfinal judgments on direct appeal.

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United States v. Ruiz Gainza Dockets: 19-10430, 20-10009, Opinion Date: December 8, 2020. The Ninth Circuit vacated defendants' sentences imposed after they pleaded guilty to multiple offenses, including conspiracy to possess unauthorized access devices, access device fraud, and aggravated identity theft. Defendants' convictions arose from their installation of cameras and skimmers at ATM machines to film fingers as PINS were entered and to record the information of inserted cards. The panel held that the record does not support the conclusion that defendants obtained 852 and 754 account numbers respectively. The panel explained that, while there is evidence that defendant hoped to obtain account information for each ATM customer, there is insufficient evidence that they succeeded in doing so. Therefore, the district court clearly erred by applying a twelve-level increase to defendants' base level under USSG 2B1.1(b)(1) based on its conclusion that defendants obtained account information for each person who visited the ATMs while the cameras and skimmers were installed. In this case, while the government showed how many people used the ATMs while the skimmers were installed, it did not provide any evidence of the skimmer success rate, either for these transactions or even for hypothetical transactions.

SPECIAL DIRECTIVE 20-14

TO: ALL DEPUTY DISTRICT ATTORNEYS

FROM: GEORGE GASCÓN

District Attorney

SUBJECT: RESENTENCING

DATE: DECEMBER 7, 2020

This Special Directive addresses issues of the Bureau of Prosecution Support Operations in Chapter 1.07.03 and Probation and Sentencing Hearings in Chapter 13 and Postconviction Proceedings in Chapter 17 of the Legal Policies Manual. Effective December 8, 2020, the policies outlined below supersede the relevant sections of Chapter 13 and Chapter 17 of the Legal Policies Manual.

INTRODUCTION

Today, California prisons are filled with human beings1 charged, convicted and sentenced under prior District Attorneys’ policies. Effective today, District Attorney George Gascón has adopted new charging and sentencing policies.

Justice demands that the thousands of people currently serving prison terms imposed in Los Angeles County under earlier, outdated policies, are also entitled to the benefit of these new policies. Many of these people have been incarcerated for decades or are serving a “virtual life sentence” designed to imprison them for life. The vast majority of incarcerated people are members of groups long disadvantaged under earlier systems of justice: Black people, people of color, young people, people who suffer from mental illness, and people who are poor. While resentencing alone cannot correct all inequities inherent in our system of justice, it should at least be consistent with policies designed to remedy those inequities.

The new Resentencing Policy is effective immediately and shall apply to all offices, units and attorneys in the Los Angeles County District Attorney’s Office (hereinafter “Office”). While particular attention will be paid to certain people as discussed herein, every aspect of existing sentencing or resentencing policy will be subject to examination. The intent of this Resentencing Policy is that it will evolve with time to ensure that it reflects the values of the District Attorney, and by extension, the people of Los Angeles County.

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We will seek to avoid using dehumanizing anguage such as “inmate,” “prisoner,” “criminal,” or

“offender” when referencing incarcerated people.

LENGTH OF SENTENCE

The sentences we impose in this country, in this state, and in Los Angeles County are far too long.  Researchers  have  long  noted  the  high  cost,  ineffectiveness,  and harm to people and communities caused by lengthy prison sentences; sentences that are longer than those of any comparable nation.  DA-elect Gascón campaigned on stopping the practice of imposing excessive sentences.

With regard to resentencing, the Model Penal Code recommends judicial resentencing hearings after 15 years of imprisonment for all convicted people:

The legislature shall authorize a judicial panel or other judicial decision maker to hear and rule upon applications for modification of sentence from prisoners who have served 15 years of any sentence of imprisonment.

(American Law Institute (2017) Model Penal Code Sentencing, Proposed Final Draft, p. 681.)

National parole experts Edward Rhine, the late Joan Petersilia, and Kevin Reitz have endorsed this recommendation, adding: “We would have no argument with a shorter period such as 10 years.” … These time frames correspond with criminological research showing that people age out of crime, with most “criminal careers” typically lasting less than ten years.” (Rhine, E. E., Petersilia, J., & Reitz, R. 2017. “The Future of Parole Release,” pp. 279-338 in Tonry, M. (Ed.) Crime and Justice, Vol, 46, p. 294.)

Accordingly, this Office will reevaluate and consider for resentencing people who have already served 15 years in prison. Experts on post-conviction justice recommend that resentencing be allowed for all people (not just those convicted as children or as emerging adults) and some experts recommend an earlier date for reevaluating continued imprisonment.

 APPLICATION OF SENTENCE ENHANCEMENT POLICY FOR OPEN/PENDING

 CASES

For any case that is currently pending, meaning that judgment has not yet been entered, or where the case is pending for resentencing, or on remand from another court, the Deputy District Attorney in charge of the case shall inform the Court at the next hearing of the following:

“At the direction of the Los Angeles County District Attorney, in accordance with Special Directive 20-08 concerning enhancements and allegations, and in the interest of justice, the People hereby

1. join in the Defendant’s motion to strike all alleged sentence enhancement(s); or

2. move to dismiss all alleged sentence enhancement(s) named in the information for all counts.

 FURTHER DIRECTIVES FOR OPEN/PENDING CASES

The following rules apply to any case where a defendant or petitioner is legally eligible for resentencing or recall of sentence, including but not limited to:

• Habeas corpus cases.

• Cases remanded to Superior Court by the Court of Appeal or Supreme Court.

• Cases referred to the Superior Court under Penal Code section 1170(d)(1).

• Cases pending resentencing under Penal Code sections 1170.126, 1170.127, 1170.18, 1170.91, and 1170.95.

• Cases pending under Penal Code section 1170(d)(2).

• All cases where the defendant was a minor at the time of the offense.

• Any other case that may be the subject of resentencing not specified here.

Any Deputy District Attorney assigned to a case pending resentencing or sentence recall consideration under any valid statute shall comply with the following directives until further notice.

1. If the defendant or petitioner is serving a sentence that is higher than what he/she would receive today, due to operation of law or by operation of the District Attorney’s new Sentencing Policy, the deputy in charge of the case shall withdraw any opposition to resentencing or sentence recall and request a new sentence that complies with current law and/or the District Attorney’s new Sentencing Policy. This policy applies even where enhancements were found true  in  a  prior  proceeding.  This  policy  shall  be  liberally construed to achieve its purposes.

1. If the defendant or petitioner is seeking relief under Penal Code section 1170.95, the DDA may concede that the petitioner qualifies for relief. If the assigned DDA does not believe that the petitioner qualifies for relief, the DDA must request a 30 day continuance, during which time the assigned DDA shall review the case in light of the Office’s specific Penal Code 1170.95 Policy, see below. If the DDA continues to oppose relief, the DDA shall submit the reasons in writing to the Head Deputy. The Head Deputy shall then seek approval from the District Attorney or his designee in order to determine whether the Office will continue to oppose relief.

1. If a defendant or petitioner would not qualify for a reduced sentence by operation of law if convicted today or under the Office’s new Sentencing Policy, then the DDA in charge of the case may seek a 30-day continuance. During that time, the deputy shall evaluate whether to support or oppose the resentencing (or sentence recall) request. If the deputy believes that compelling and imminent public safety concerns  justify  opposition  to revisiting the sentence, then the deputy must submit those concerns in writing to her Head Deputy who shall then seek approval from the District Attorney or his designee.

1. All laws concerning victim notification and support shall be honored.

PENAL CODE § 1170.95/SB 1437 RESENTENCING POLICY

1. We start with a position of respect for our co-equal branch of government, the legislature. Like the courts, we presume that laws passed by the legislature are constitutional. “[U]nder long-established principles, a statute, once enacted, is presumed to be constitutional.” (Lockyer v. City and County of San Francisco (2004) 33 Cal.4th 1055, 1119.) We will no longer seek to delay implementation of laws by making arguments that laws that provide retroactive relief are unconstitutional.

2. The Office’s position is that defense counsel should be appointed when the petition is filed and there should be no summary denials by the court. (People v. Cooper (2020) 54 Cal.App.5th 106; People v. Tarkington (2020) 49 Cal.App.5th 892, 917, review granted Aug. 12, 2020, S263219 [dis. opn. of Lavin, J.].)

3. Many people accepted plea offers to manslaughter, made by this Office in order to avoid a conviction for murder. It is this Office’s policy that where a person took a plea to manslaughter or another charge in lieu of a trial at which the petitioner could have been convicted of felony murder, murder under the natural and probable consequences doctrine, attempted murder under the natural and probable consequences doctrine, or another theory covered by Senate Bill 1437, that person is eligible for relief under section 1170.95. Such a position avoids disparate results whereby a person who this Office has already determined to be less culpable -- as evidenced by allowing a plea for manslaughter -- serves a longer sentence than a similarly situated person who is now eligible for relief under section 1170.95.

4. Section 1170.95 (d)(2) states, “[I]f there was a prior finding by a court or jury that the defendant did not act  with  reckless  indifference  to  human  life  or  was  not  a  major participant in the felony, the defendant is entitled to have his or her murder conviction vacated.”  This  prior  finding  includes  cases  where  a  magistrate found that there was insufficient evidence of major participation in a felony or reckless indifference to human life following a preliminary hearing, or at any stage in the proceedings.

5. The Office’s position is that, consistent with the definition of “prima facie,” the court must not engage in fact finding at the prima facie stage. (People v. Drayton (2020) 47 Cal. App. 5th 965.)

6. The Office’s position is that if the person was an accomplice to the underlying felony, and had a special circumstance finding that was decided before People v. Banks (2015) 61 Cal 4th 788  or People v. Clark (2016) 63 Cal. 4th 522, then the filing of a Penal Code section 1170.95 petition is adequate to trigger the section 1170.95 process. There is no requirement that the petitioner file a separate habeas petition first. (People v. York (2020) 54 Cal. App. 5th 250, 258.) The next stage is an evidentiary hearing.

7. The Office’s position is that if allegations pursuant to Penal Code section 190.2 (a) (17) were dismissed as part of plea negotiations and the petitioner was not the actual killer, this Office will not attempt to prove the individual is ineligible for resentencing. This Office will stipulate to eligibility per section 1170.95(d)(2).

1. The Office’s position is that, consistent with People v. Medrano (2019) 42 Cal. App. 5th 1001, 1008, rev. granted, that a person who was convicted of attempted murder under the natural and probable consequences doctrine is eligible for resentencing under section 1170.95. Among other reasons, this avoids the great disparity that arises when one who was convicted of murder under the now abolished natural and probable consequences doctrine is able to be resentenced but one who was convicted of attempted murder is not.

2. If the client has previously won relief under People v. Chiu (2014) 59 Cal. 4th 155, the Office will not attempt to argue that the petitioner is ineligible for resentencing, or could be convicted as a direct aider and abettor.

3. If the jury was never instructed on direct aiding and abetting, implied malice murder, or any other intent-to-kill theory, or if the trial prosecutor never argued one of these theories, this Office will not argue that the petitioner can now be convicted under one of these theories during 1170.95 proceedings. Theories must remain consistent.

4. Relatedly, if a jury was not even instructed on implied malice murder or some other theory of homicide not covered by section 1170.95, the prosecution cannot now meet our burden of proof beyond a reasonable doubt that the petitioner is ineligible for resentencing.

5. If the petitioner was convicted of murder and the petitioner’s jury was instructed on the natural and probable consequences theory doctrine and/or a first or second degree felony murder instruction at trial, then it may have been possible that petitioner was convicted under one of these theories and this Office will not seek to rebut petitioner’s prima facie showing. The case must proceed to the evidentiary hearing.

6. Because jury deliberations are secret, in the absence of special findings, it is not possible to determine the actual basis of a jury verdict when multiple theories were before the jury. Therefore, at an evidentiary hearing, if the petitioner was convicted of murder and the  petitioner’s  jury  was  instructed  with  a  felony  murder  or  a  natural  and probable consequences doctrine instruction along with other theories, there is a reasonable doubt that the jury convicted petitioner under the old felony murder rule or the now abolished doctrine of natural and probable consequences. Because the statute allows for the introduction of “new or additional evidence,” the deputy district attorney may introduce evidence to show, for example, that the petitioner was the actual killer, or acted as a major  participant  with  reckless indifference to human life, or was convicted under a still-valid theory on which the jury was instructed. See below for this Office’s position on evidence that we will and will not seek to admit.

7. At an evidentiary hearing pursuant to section 1170.95 (d)(3), the prosecution must prove beyond a reasonable doubt that the petitioner is ineligible for resentencing. A deputy district attorney may not argue that the standard for the court to determine whether a petitioner is ineligible for resentencing is whether there is “sufficient evidence” to uphold the conviction. This is a standard of proof for an appellate court affirming a conviction. It is not the standard of proof for a trial court in a section 1170.95 proceeding. (People v. Lopez (2020) 56 Cal.App. 5th 936, 949-950.)

1. It is this Office’s position that the Evidence Code applies to any evidentiary hearing pursuant to section 1170.95. Statements made after promises of leniency or threats of punishment (express or implied) are unreliable. A parole hearing is a coercive environment and therefore statements made in them are unreliable and involuntary. This Office will not seek to introduce statements by a petitioner made in parole hearing transcripts into court for any purpose.

2. As a matter of due process, it is this Office’s policy that a petitioner has a right to confrontation at a hearing under section 1170.95. Accordingly, this Office will not seek to admit statements of a declarant when the petitioner did not have an opportunity to cross-examine the declarant or when a purported expert’s opinion is based on inadmissible hearsay. (See People v. Sanchez (2016) 63 Cal.4th 665.)

3. The Office will comply with all of our obligations under Brady v. Maryland and its progeny during resentencing procedures.

4. The Office’s position is that any defendant who was under the age of 25 when the crime occurred is entitled to present mitigation documents pursuant to People v. Franklin and Penal Code section 3051.

5. The Office’s position is that a person’s age and the “diminished culpability of youth,” a person’s mental illness, or cognitive impairment, or a person’s intoxication is relevant to the determination whether a petitioner meets the standard of “reckless indifference to human life.”

6. On resentencing, this Office will dismiss enhancements consistent with our current enhancement policies and otherwise not seek a sentence that is inconsistent with this Office’s current sentencing policies.

RESENTENCING UNIT

This Office declares that new Sentencing, Enhancement and Juvenile policies must apply with equal force to sentences where the judgment is final. Accordingly, this Office commits to a comprehensive review of cases where the defendant received a sentence that was inconsistent with the charging and sentencing policies in force after Tuesday, December 8, 2020, at 12:01 AM.

In such cases, this Office shall use its powers under Penal Code section 1170(d)(1) to recommend recall and resentencing. While priority shall be given to the cases enumerated below, the ultimate goal shall be to review and remediate every sentence that does not comport with the new Sentencing, Enhancement and Juvenile Policies.

Specifically, this Office commits to an expedited review of the following categories of cases, which are themselves a subset of a universe of 20,000-30,000 cases with out-of-policy sentences:

• People who have already served 15 years or more;

• People who are currently 60 years of age or older;

• People who are at enhanced risk of COVID-19 infection;

• People who have been recommended for resentencing by CDCR;

• People who are criminalized survivors;

• People who were 17 years of age or younger at the time of the offense and were prosecuted as an adult.

In formulating this policy, we rely on current statistical data from the California Department of Corrections and Rehabilitation (CDCR). (See Appendix.) Over time, the data may be subject to change; the urgency of our mission will not be. In seeking resentencing under 1170(d)(1), this Office shall argue that resentencing is necessary to eliminate disparity of sentences and to promote uniformity of sentencing.

At all types of resentencing hearings, filing deputies shall assist the Resentencing Court by setting forth any and all postconviction factors that support resentencing, including, but not limited to: mitigation evidence; CDCR disciplinary records and record of rehabilitation and positive programming while incarcerated; evidence that reflects whether age, time served, and diminished physical condition, if any, have reduced the risk for future violence; evidence that reflects that circumstances have changed since the original sentencing so that continued incarceration is no longer in the interest of justice; and post-release reentry plans, demonstrating any family or community support that is available upon release. (See e.g. Assembly Bill 1812, Pen. Code § 1170, subd. (d).)

LIFER PAROLE HEARINGS

This Office recognizes that parole is an effective process to reduce recidivism, ensure public safety, and assist people in successfully rejoining society. The CDCR’s own statistics show that people paroled from life terms have a recidivism rate of less than four percent.

We are not experts on rehabilitation. While we have information about the crime of conviction, the Board of Parole Hearings already has this information. Further, as the crime of conviction is of limited value in considering parole suitability years or decades later,  (see In re Lawrence (2008) 44 Cal.4th 1181; In re Shaputis (2008) 44 Cal. 4th 1241, 1255), the value of  a prosecutor’s input in parole hearings is also limited. Finally, pursuant to Penal Code section 3041, there is a presumption that people shall be released on parole upon reaching the Minimum Eligible Parole Date (MEPD), their Youth Parole Eligible Date, (YEPD), or their Elderly Parole Date (EPD). Currently, sentences are being served that are much longer than the already lengthy mandatory minimum sentences imposed. Such sentences are constitutionally excessive. (See In re Palmer (2019) 33 Cal.App.5th 1199.)

This Office’s default policy is that we will not attend parole hearings and will support in writing the grant of parole for a person who has already served their mandatory minimum period of incarceration, defined as their MEPD, YEPD or EPD. However, if the CDCR has determined in their Comprehensive Risk Assessment that a person represents a “high” risk for recidivism, the DDA may, in their letter, take a neutral position on the grant of parole.

This Office will continue to meet its obligation to notify and advise victims under California law, and is committed to a process of healing and restorative justice for all victims.

YOUTH AND CHILDREN2

Currently, there are thousands of people from Los Angeles County serving sentences in the CDCR for crimes they committed as children. As recent developments in adolescent brain science teach us, young people are uniquely capable of rehabilitation and can lead productive lives as contributing members of society without serving long sentences.

Under new Juvenile Directives, available here, people who are 17 or younger at the time of their offense, will not be transferred to adult court and will remain committed to the youth system until they are mature enough to reenter society. Accordingly, any person who was a minor at the time of the offense and meets the eligibility requirements for recall and/or resentencing in adult court, including but not limited to actions pursuant to Penal Code sections 1170(d)(2), or 1170(d)(1), falls within this Office’s policy to oppose transfer of minors to adult court. In such cases, DDAs shall join in any defense motion seeking to transfer the person to juvenile court for further proceedings, and the deputy on the case shall state the reasons for supporting such transfer, consistent with this Office’s policies, on the record.

2 We will refer to “youth,” “child,” or “children” instead of “juvenile(s).” The word “juvenile” is used almost exclusively as a way to describe children who are in the criminal legal system or as police descriptors. As a result, it has become a way to mark certain children as “other.” To the extent possible, we will refer to the children in the criminal legal system as we would to all children, as “young person(s)” or “children.” In accordance with Penal Code § 3051, we will refer to persons age 18 to 25 as “youths.”

SQ Prison Asking COVID-19 Devastated Prisoners To Accept Legal Liability For Own Deaths?

By Cres Vellucci, The Vanguard Sacramento Bureau Chief

12/11/2020--San Quentin State Prison – the stuff that movies are made of – has become a real live killing field this year after COVID-19 spread like a wildfire, as predicted, killing dozens. Now, in a “bizarre” twist that makes the story even more unbelievable, incarcerated support groups have revealed that prisoners said that San Quentin medical staff have been “pressuring prisoners to sign waiver forms accepting legal responsibility for their own deaths from COVID-19.” The First District Court of Appeal in San Francisco issued a decision, In re Ivan Von Staich (2020) 56 Cal.App.5th 53, ruling that the state correctional system violated the Eighth Amendment. Finding state officials acted with “deliberate indifference” to the health of prisoners at San Quentin — where 75 percent tested positive for the coronavirus and 28 have died — the state appeals court took the unprecedented step of ordering at least half of the prison’s 2,900 inmates transferred. The courts ordered 1,700 prisoners transferred, but now prisoners have to waive their rights.

“Instead of accepting responsibility for their criminal neglect, Gov. Gavin Newsom and leaders at CDCR are now attempting to shift responsibility for their actions onto the backs of the victims of the state’s own incompetence and malfeasance,” said No Justice Under Capitalism (NJUC), a coalition that works on behalf of prisoners throughout California. NJUC organized protests in front of San Quentin since last Spring, and in front of CA Dept. of Corrections offices in Sacramento, and at the front doorsteps of Gov. Newsom’s home. NJUC has urged the immediate release of inmates because of the pandemic, and its “the only safe response to the COVID-19 crisis in California prisons, prioritizing elderly and immunocompromised prisoners, as well as prisoners whose sentences are almost over.” Many prisoners are refusing to cooperate with demands of the state to accept an unsafe transfer to another state prison, said NJUC, revealing that those prisoners then are taken to the medical unit and “pressured by a nurse to accept an unsafe transfer to another California prison,” added NJUC. NJUC noted that “The waiver form also demands that prisoners accept liability for being medically vulnerable and elderly. In fact, as the San Francisco Chronicle reported (December 6, 2020), CDCR has consistently refused to release at-risk elderly and immunocompromised prisoners, completely ignoring more than 5,200 out of the 6,500 at-risk prisoners in California prisons.

The form, provided to THE VANGUARD, states, in part: “I agree to hold the Department of Corrections and Rehabilitation, the staff of the medical department and the institution free of any responsibility for injury or complications that may result from my refusal [of the transfer].” The prisoner is then pressured to initial sentences such as: “I understand that due to my age, I am at high risk for developing serious complications [from COVID-19] . . .” “I understand that I have one or more medical conditions that makes me high risk for developing serious complications [from COVID-19] . . .” “I understand that COVID-19 could lead to serious complications such as lengthy hospitalizations or even death.” “I understand that living in places where individuals are in close contact and physical distancing is difficult to follow, such as prison dormitory [sic], will increases [sic] my risk of being infected by COVID-19.” “Coercing prisoners to accept legal liability for their own deaths from COVID-19 is truly bizarre, given San Quentin’s documented, 10-month-long history of continuous indifference to prisoners’ lives – since the COVID-19 pandemic began, guards at San Quentin and throughout the California prison system have not worn masks, and moved freely between tiers,” said NJUC. “A recent (October 2020) report by the California Office of the Inspector General states that prison staff frequently do not wear masks, and that there has only been one disciplinary action against a staff person, during the entire pandemic, at San Quentin for not wearing a mask,” added the support group. And San Quentin has misled officials and the courts, charged NJUC, noting that in the gym at San Quentin, CDCR “claimed in June 2020 that prisoners were six feet apart when housed in bunk beds. “In actuality, prisoners were only six feet apart if they slept head to toe and the distance was measured diagonally,” said NJUC.

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Tanzin v. Tanvir Court: US Supreme Court, Docket: 19-71, Opinion Date: December 10, 2020. The Religious Freedom Restoration Act of 1993 (RFRA) provides a remedy to redress federal government violations of the right to free exercise under the First Amendment. Practicing Muslims sued under RFRA, claiming that federal agents placed them on the No-Fly List for refusing to act as informants against their religious communities. They sought injunctive relief against the agents in their official capacities and monetary damages against the agents in their individual capacities. The Supreme Court affirmed the Second Circuit in holding that RFRA’s express remedies provision permits litigants, when appropriate, to obtain money damages against federal officials in their individual capacities. RFRA’s text provides that persons may “obtain appropriate relief against a government,” including an “official (or other person acting under color of law) of the United States,” 42 U.S.C. 2000bb–2(1). RFRA supplants the ordinary meaning of “government” with an express definition that includes “official[s]” and underscores that “official[s]” are “person[s].” Under RFRA’s definition, relief that can be executed against an “official . . . of the United States” is “relief against a government.” What relief is “appropriate” is context dependent. In the context of suits against government officials, damages have long been awarded as appropriate relief. Damages are available under section 1983 for clearly established violations of the First Amendment; that means RFRA provides, as one avenue for relief, a right to seek damages against government employees.

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People v. Rodriguez Court: California Courts of Appeal, Docket: B303099 (Second Appellate District), Opinion Date: December 7, 2020. Penal Code section 1170.95 requires the prosecutor to prove beyond a reasonable doubt each element of first- or second-degree murder under current law to establish a petitioner's ineligibility for relief under that statute. The Court of Appeal agreed with defendant that the superior court here used an improper standard, concluding he was ineligible for relief under section 1170.95 because the record could support a finding of express malice murder beyond a reasonable doubt, rather than based on its own finding beyond a reasonable doubt that defendant would be guilty of murder within the meaning of sections 188 and 189, as amended by Senate Bill No. 1437. Accordingly, the court reversed the order denying defendant's petition to vacate his murder conviction and for resentencing, remanding for a new evidentiary hearing on defendant's eligibility for relief.

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People v. Joaquin Court: California Courts of Appeal, Docket: A152786A (First Appellate District), Opinion Date: December 4, 2020. In March 2017, Joaquin fired a shotgun at the victim. He was charged with premeditated attempted murder with an allegation that he personally and intentionally discharged a firearm, possessing a firearm having been previously convicted of a felony, and assault with a firearm. The complaint also included a firearm use allegation and a prior prison term allegation. (Penal Code 12022.5(a), 667.5(b).) The prior prison term was based on a conviction for infliction of corporal injury on a spouse or cohabitant. Joaquin pled no contest to attempted murder without premeditation and admitted a firearm use allegation and a prior prison term. The parties stipulated to a 12-year sentence: the seven-year middle term for unpremeditated attempted murder, the four-year middle term for the firearm use allegation, and one year for the prior prison term. The trial court accepted the plea. The court of appeal remanded with directions to strike the one-year prior prison term enhancement. Senate Bill 136, effective January 1, 2020, applies retroactively and prohibits the imposition of the prior prison term enhancement except for a prior prison term served for a sexually violent offense. On remand, the parties may enter into a new plea agreement but, if they do, the court may not impose a longer sentence than that in the original agreement.

People v. Booker Court: California Courts of Appeal, Docket: B295128 (Second Appellate District), Opinion Date: December 10, 2020. Defendants Booker and Lewis appealed from judgments of conviction entered after a jury trial for first degree murder; attempted willful, deliberate, and premeditated murder; and shooting at an occupied vehicle. In the published portion of the opinion, the Court of Appeal addressed defendants' contentions that the trial court prejudicially erred in instructing the jury on the "kill zone" theory of concurrent specific intent to prove the attempted murder in light of the Supreme Court's holding in People v. Canizales (2019) 7 Cal.5th 591, 596-597. In Canizales, the Supreme Court held that a jury may convict a defendant under the kill zone theory only when the jury finds that: (1) the circumstances of the defendant's attack on a primary target, including the type and extent of force the defendant used, are such that the only reasonable inference is that the defendant intended to create a zone of fatal harm—that is, an area in which the defendant intended to kill everyone present to ensure the primary target's death—around the primary target and (2) the alleged attempted murder victim who was not the primary target was located within that zone of harm. The court agreed with defendants that this is not one of the relatively few cases in which the kill zone theory will be applicable and an instruction appropriate. Therefore, it was prejudicial error for the trial court to instruct the jury on the kill zone theory. The court reversed defendants' convictions of attempted murder and remanded for further proceedings.

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People v. Azcona Court: California Courts of Appeal, Docket: H045676(Sixth Appellate District), Opinion Date: December 10, 2020. Azcona fired multiple shots at a man sitting on a porch, hitting the victim in the arm, while riding past on a bicycle. Police recovered 13 nine-millimeter casings from the scene. Two weeks later, Robles was a passenger in a car when Azcona rode up on his bike, pulled out a gun, and started firing, killing Robles. The driver was also hit. Police found 15 nine-millimeter casings in the area. Two days later, someone matching Azcona’s description, riding a bike, approached a car occupied by two men and brandished a gun. Days later, Azcona tried to rob a teenager, hitting the boy with a gun on the face. Azcona’s final victim was Herrera, whose body was found on a Chinatown road with nine bullet wounds. Most of the surviving victims either identified Azcona in a photo lineup or provided a description consistent with his appearance; surveillance videos placed Azcona near the Chinatown murder around the time of the shooting. Azcona was convicted of premeditated murder, attempted premeditated murder, being a felon in possession of a firearm, negligent discharge of a firearm, and attempted robbery, with multiple enhancements. The court of appeal reversed in part. The trial court committed multiple errors related to the firearms expert testimony, allowing the expert to testify to conclusions not supported by the material on which he relied, and violating Azcona’s constitutional right to confrontation by allowing the expert to testify that his findings were reviewed and approved by a supervisor. Those errors were prejudicial as to one of Azcona’s attempted murder convictions and the related convictions for negligently discharging and possessing a firearm.

United States v. Ruiz Gainza, Court: US Court of Appeals for the Ninth Circuit, Dockets: 19-10430, 20-10009, Opinion Date: December 8, 2020. The Ninth Circuit vacated defendants' sentences imposed after they pleaded guilty to multiple offenses, including conspiracy to possess unauthorized access devices, access device fraud, and aggravated identity theft. Defendants' convictions arose from their installation of cameras and skimmers at ATM machines to film fingers as PINS were entered and to record the information of inserted cards. The panel held that the record does not support the conclusion that defendants obtained 852 and 754 account numbers respectively. The panel explained that, while there is evidence that defendant hoped to obtain account information for each ATM customer, there is insufficient evidence that they succeeded in doing so. Therefore, the district court clearly erred by applying a twelve-level increase to defendants' base level under USSG 2B1.1(b)(1) based on its conclusion that defendants obtained account information for each person who visited the ATMs while the cameras and skimmers were installed. In this case, while the government showed how many people used the ATMs while the skimmers were installed, it did not provide any evidence of the skimmer success rate, either for these transactions or even for hypothetical transactions.​

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Does v. Wasden Court: US Court of Appeals for the Ninth Circuit, Docket: 19-35391, Opinion Date: December 9, 2020. Plaintiffs, 134 men and women registered as sex offenders in Idaho, filed suit claiming that the retroactive application of Idaho's Sexual Offender Registration Notification and Community Right-to-Know Act (SORA) is unconstitutional. The district court granted defendants' motions to dismiss. The Ninth Circuit reversed in part, holding that the district court erred in dismissing the ex post facto claim on the basis that SORA was civil in intent and not punitive in effect. The panel explained that the district court erred by applying plaintiffs' ex post facto claim as an as-applied challenge; erred by applying the "clearest proof" standard at the motion to dismiss stage; and erred in finding the outcome of the Smith factors analysis controlled by precedent. Because the district court predicated its dismissal of the Eighth Amendment and double jeopardy claims on its dismissal of the ex post facto claim, the panel held that those judgments were also in error. The panel also held that the district court erred in dismissing plaintiffs' free exercise claim because the district court erred in finding that plaintiffs failed to allege sufficient facts to plead a plausible claim under Idaho's Free Exercise of Religion Protected Act (FERPA). In this case, plaintiffs have alleged facts showing that the challenged policy substantially burdens the exercise of their religious beliefs. The panel found no error in the district court's analysis of plaintiffs' vagueness, Free Association, Equal Protection, Contracts Clause, Takings, Separation of Powers, and state Police Power challenges. Therefore, the panel affirmed the dismissal of those claims. The panel remanded for further proceedings.

People v. Griffin Court: California Courts of Appeal, Docket: A159104 (First Appellate District), Opinion Date: November 30, 2020. A 2018 complaint charged Griffin with possession of methamphetamine for sale, possession of materials with the intent to make an explosive, and possession of ammunition by a prohibited person. A 2019 complaint charged entry with intent to commit larceny, malicious destruction of personal property, being a felon in possession of a firearm, and assault with a firearm, with allegations that Griffin personally discharged a firearm and that two prior prison term enhancements applied, based on convictions for weapons offenses. Another 2019 complaint charged Griffin with felony transportation of methamphetamine with intent to sell, other drug crimes, and extortion, alleging two prior prison terms. In two cases Griffin pled no contest to possession of a controlled substance for sale. In the third case, Griffin pled no contest to burglary and admitted a prior prison term. The stipulated term comprised six years for burglary and a one-year Penal Code 667.5 prison term enhancement. The court imposed the sentences in October 2019. Senate Bill 136, effective January 2020, eliminated section 667.5(b)'s enhancement for prior prison terms except those based on sexually violent offenses. The court of appeal reversed the sentence. The enactment is retroactive. The prosecution may withdraw from the plea agreement but it would be an abuse of discretion for the trial court to impose a longer sentence than the original agreement if a new plea agreement is entered.

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People v. Avila Court: California Courts of Appeal, Docket: B294632 (Second Appellate District), Opinion Date: November 30, 2020. Defendant appealed his conviction for attempted robbery and attempted extortion, and his sentence of 25 years to life plus 14 years. In the published portion of the opinion, the Court of Appeal found that the trial court abused its discretion by denying defendant's Romero motion to strike a prior conviction. In this case, defendant's prior strikes were remote and committed when he was of diminished culpability based on his age, a factor the trial court erroneously concluded was inapplicable to the formulation of his sentence. Furthermore, despite the trial court's characterization of the facts, defendant's current offenses were not violent and, on the spectrum of criminal behavior, fall closer to the end of less reprehensible conduct. The court also held that the sentence imposed on defendant is cruel or unusual punishment under the California Constitution. The court considered the Lynch technique and concluded that defendant's sentence lacks proportionality to his crimes. Accordingly, the court vacated defendant's sentence and remanded for resentencing with the direction to the trial court to strike two of defendant's prior strike convictions and to reconsider his sentence.

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United States v. Collazo, Court: US Court of Appeals for the Ninth Circuit, Dockets: 15-50509, 16-50048, 16-50117, 16-50195, 16-50345, Opinion Date: December 2, 2020. Five defendants appealed their convictions for conspiracy to distribute controlled substances under 21 U.S.C. 846 and 841. The en banc court concluded that the jury instruction in this case was erroneous, clarifying the requirements for conspiracy under section 846 and the facts that trigger the penalties under section 841(b)(1)(A)–(B). The en banc court explained that to convict defendants of conspiracy under section 846 in this case, the government must prove beyond a reasonable doubt that each defendant agreed with another person that some member of the conspiracy would commit a section 841(a) offense, and that each defendant had the requisite intent necessary for a section 841(a) conviction. The en banc court further explained that a defendant convicted of conspiracy under section 846 is subject to a penalty under section 841(b)(1)(A)–(B) if the government has proven beyond a reasonable doubt that the underlying section 841(a)(1) offense involved the drug type and quantity set forth in section 841(b)(1)(A)–(B). The government does not have to prove that the defendant had any knowledge or intent with respect to those facts. The en banc court clarified that a conviction under section 846 does not require proof of a level of criminal intent greater than that required for the underlying offense merely because it is a conspiracy conviction. The en banc court overruled United States v. Becerra, 992 F.2d 960 (9th Cir. 1993), and its progeny to the extent they depart from this decision. In this case, the erroneous jury instructions could amount to harmless error if there was overwhelming evidence that each defendant entered into an agreement involving the requisite drug type and quantity. Given the numerous issues raised on appeal and the extensive record from the ten-day jury trial, the en banc court found it appropriate to return this case to the three-judge panel to reconsider both the harmless error issue and the balance of the issues raised by the parties in light of this opinion, and to enter an appropriate judgment.

In re Long Docket: S249274, Opinion Date: November 30, 2020. The Supreme Court reversed the judgment of the court of appeal reversing the judgment of the trial court granting Defendant's petition for a writ of habeas corpus and reinstating Defendant's conviction, holding that trial counsel rendered objectively deficient performance that prejudiced Defendant's case. After a jury trial, Defendant was convicted of second-degree murder and sentenced to a term of imprisonment of fifteen years to life. Defendant later filed a petition for a writ of habeas corpus on the grounds of ineffective assistance of counsel and actual innocence. The Supreme Court concluded that Defendant had stated a prima facie case for relief and issued an order to show cause. The trial court vacated Defendant's conviction, finding that Defendant's trial counsel rendered ineffective assistance. The court of appeal reversed, finding no deficient performance. The Supreme Court reversed, holding that counsel's failure to investigate the victim's time of death, in a case where the timeline was crucial, was an error sufficient to undermine confidence in the outcome.

People v. Hall Court: California Courts of Appeal, Docket: A157868 (First Appellate District), Opinion Date: November 24, 2020. When Hall was pulled over for a vehicle equipment violation in 2018, a police officer observed in the car “a clear plastic baggie” of what appeared to be marijuana. Based on this observation, two police officers searched Hall’s car and found a gun in a closed backpack, resulting in criminal charges against Hall for carrying a loaded firearm in a public place, carrying a concealed firearm in a vehicle, and having no license plate lamp. The trial court denied Hall’s motion to suppress the evidence found in the search. The court of appeal reversed that denial. Since the passage of Proposition 64 in 2016, it has been legal for persons 21 years of age and older to possess and transport small amounts (up to 28.5 grams) of marijuana, Health & Saf. Code 11362.1(a)(1). The lawful possession of marijuana in a vehicle does not provide probable cause to search the vehicle. Under Proposition 64, a driver is not permitted to “[p]ossess an open container or open package of cannabis or cannabis products” but there was no evidence in this case that the plastic baggie observed by the officers was an “open container.”

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