Posse Legal Updates
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.
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.
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.
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.
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.
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
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.
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.
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
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
join in the Defendant’s motion to strike all alleged sentence enhancement(s); or
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.
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.
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.
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.
All laws concerning victim notification and support shall be honored.
PENAL CODE § 1170.95/SB 1437 RESENTENCING POLICY
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.
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.].)
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.
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.
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.)
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.
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).
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.
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.
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.
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.
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.
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.
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.)
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.
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.)
The Office will comply with all of our obligations under Brady v. Maryland and its progeny during resentencing procedures.
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.
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.”
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.
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.
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.
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.
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.
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.
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.
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.
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.”
In re Edgerrin J. Court: California Courts of Appeal, Docket: D076461 (Fourth Appellate District), Opinion Date: November 20, 2020. After receiving a citizen’s tip that Black males in a Mercedes were “acting shady,” four San Diego Police Department (SDPD) officers drove to the scene in two marked vehicles, activating emergency lights in one. Parking behind the Mercedes, the officers positioned themselves beside each of its four doors and asked the three teenagers inside for their names and identification. A records check later indicated that the driver was on probation subject to a Fourth Amendment waiver. The officers searched the vehicle and recovered a loaded firearm and sneakers linking the minors to a recent robbery. The minors moved to suppress the evidence found in the car, claiming their initial detention was not supported by reasonable suspicion. Finding the encounter was consensual rather than a detention, the juvenile court denied the motions. Two of the minors pleaded guilty to a subset of the charges originally filed. In a consolidated appeal, two of the minors, Edgerrin J. and Jamar D. challenged the denial of their motions to suppress, arguing the juvenile court erred in finding the encounter consensual, and claimed the citizen’s tip did not establish reasonable suspicion to detain them. To this, the Court of Appeal agreed on both points. However, the Court found conflicting evidence as to whether officers knew other facts that might furnish reasonable suspicion for the stop, or justify the detention and search pursuant to Edgerrin’s active Fourth Amendment waiver. Because the rationale for its ruling made it unnecessary for the juvenile court to address these other issues, judgment was reversed and remanded for a new hearing to permit it to assess witness credibility and reach factual findings in the first instance.
United States v. Bautista 9th Circuit Court of Appeals, Docket: 19-10448, Opinion Date: November 23, 2020. The Ninth Circuit reversed defendant's sentence for possession of ammunition by a convicted felon. Defendant contends that the district court erred in applying a recidivist sentencing enhancement based on his prior state conviction for attempted transportation of marijuana under Arizona Revised Statutes 13-3405(A)(4). The panel held that the district court's application of the six-level recidivist enhancement was plain error. The Arizona statute under which defendant was convicted included hemp in its definition of marijuana. However, in 2018, before defendant's federal conviction, Congress amended the Controlled Substances Act to exclude hemp from its definition of a controlled substance. Therefore, in 2019, when defendant was sentenced, the Arizona statute under which he had been convicted was overbroad and that conviction no longer qualified as a "controlled substance offense" under the Guidelines. Furthermore, the error affected defendant's substantial rights and allowing the error to go uncorrected would seriously affect the fairness, integrity, or public reputation of judicial proceedings. Accordingly, the panel remanded for resentencing.
United States v. Ngumezi 9th Circuit Court of Appeals, Docket: 19-10243, Opinion Date: November 20, 2020. The Ninth Circuit reversed the district court's denial of defendant's motion to suppress a firearm found in a search of his car, vacated his conviction for being a felon in possession of a firearm, and remanded for further proceedings. The panel held that police officers who have reasonable suspicion sufficient to justify a traffic stop—but who lack probable cause or any other particularized justification, such as a reasonable belief that the driver poses a danger—may not open the door to a vehicle and lean inside. In this case, the officer conducted an unlawful search in violation of the Fourth Amendment when he opened the car door and leaned into it to ask defendant for his driver's license and vehicle registration. The panel concluded that nothing about this case calls for a remedy other than the typical remedy for Fourth Amendment violation, which is the exclusion of evidence discovered as a result of that violation from criminal proceedings against defendant. Therefore, the firearm must be suppressed under the exclusionary rule.
People v. Lopez Court: California Courts of Appeal, Docket: H046618(Sixth Appellate District), Opinion Date: November 16, 2020. Lopez pleaded guilty in 2011 to transporting a controlled substance (Health & Saf. Code, 11352(a)), a felony. Lopez was granted probation, which he violated in 2014; the court terminated probation and imposed an eight-month sentence, suspended execution of that sentence, and placed Lopez on mandatory supervision. Lopez violated the terms of mandatory supervision in February 2016. The court increased the sentence to two years but again suspended execution to reinstate supervision. Lopez again violated supervision in October 2016. He failed to appear at the violation hearing, and a bench warrant issued. Lopez was brought to court in 2018 and moved to vacate his conviction. In 2013—two years after his guilty plea—Health and Safety Code section 11352 had been amended to make transportation of a controlled substance a felony only where the transportation was for the purpose of sale, not for personal use. Lopez claims his offense involved personal use. The court found the statutory amendment inapplicable because Lopez’s judgment was final. The court of appeal reversed. Where execution of sentence is suspended to place a defendant on mandatory supervision, there is no final judgment for purposes of retroactively applying an ameliorative statutory amendment. Sentencing was not actually complete; Lopez is entitled to retroactive application of the amendment that made transporting a controlled substance for personal use a misdemeanor.
People v. O'Hearn Court: California Courts of Appeal Docket: A158676 (First Appellate District), Opinion Date: November 9, 2020. Police responding to a report of O’Hearn acting erratically had previously dealt with him. They suspected O’Hearn had “mental health issues” but, after he threatened to kill his neighbors, they arrested O’Hearn for making criminal threats and violating conditions of probation. O’Hearn had four prior felony convictions. During the ensuing months, O’Hearn was represented by three attorneys and pled guilty. Then-counsel Selby failed to sign O’Hearn's Cruz/Vargas Waiver. The PSR noted that O’Hearn had bi-polar disorder and was not taking his medication at the time of the offense. Another attorney filed a motion to vacate the plea, arguing that it was the consequence of ineffective assistance. Counsel “barely met" with O'Hearn, failed to attend the sentencing hearing, lost the case file, never explained potential defenses, did not inquire about O'Hearn's extensive mental health history, and did not advise him of the consequences or alternatives. O’Hearn’s 800-page medical record showed hospitalizations for mental health problems and a history of schizophrenia. Selby had been repeatedly found to have failed to provide competent legal services. The victims, one of whom had a criminal history, had interacted with O’Hearn for many years. Conviction of making criminal threats requires specific intent, which can be negated by a mental disorder. The court of appeal reversed the denial of O’Hearn’s motion to vacate his plea. Selby never asserted any strategic reason for failing to learn whether his client’s mental state provided the basis for a possible mental defense and the deficient representation was prejudicial.
Kevin P. v. Superior Court Court: California Courts of Appeal, Docket: A159680 (First Appellate District), Opinion Date: November 6, 2020. Kevin was charged in juvenile court with a murder he allegedly committed at age 17. A contested hearing under Welfare and Institutions Code section 707(a)(1) lasted several days. The juvenile court was presented with evidence demonstrating both the heinousness of the crime and that Kevin was raised by a loving family, had no prior criminal history, suffered little past trauma, and had no significant psychological or behavioral issues. Kevin’s juvenile hall behavior was exemplary. The juvenile court concluded that Kevin was unfit for the juvenile system and transferred him to criminal court, acknowledging “a certain tragedy” in its ruling. The court of appeal remanded for reconsideration. The court’s findings regarding section 707’s gravity and criminal-sophistication criteria are supported by substantial evidence but the court improperly evaluated section 707’s rehabilitation criterion, which it deemed its “most significant” consideration. A court cannot determine a juvenile’s rehabilitative needs based solely on the gravity of the offense, and the standard seven-year parole consideration period that applies to juveniles committed to the Department of Juvenile Justice for murder does not establish a presumptive rehabilitation period.
California v. Grant Court: California Courts of Appeal Docket: D076576 (Fourth Appellate District), Opinion Date: November 12, 2020. Defendant Kenneth Grant admittedly stole merchandise from a Wilsons Leather outlet store. Everything there was sold at a discount (as evidenced by a “comparable value” the store displays on tags attached to each product). At trial, the prosecution introduced evidence showing that the cumulative comparable values of the stolen merchandise exceeded the $950 felony theft threshold. However, the prosecution introduced: (1) no evidence establishing that the comparable values represented the merchandise’s actual fair market values; and (2) evidence of actual sales prices for only a few of the stolen products (totaling about $265). Presumably relying on the comparable values, the jury found the value of the stolen merchandise exceeded $950, and convicted Grant of grand theft and burglary. The trial court sentenced him to three years in local custody. On appeal, Grant contended his grand theft conviction must be reduced to petty theft, and his burglary conviction had be reversed, because: (1) the trial court erroneously instructed the jury regarding the definition of fair market value; (2) the trial court failed to instruct the jury regarding the distinction between burglary and misdemeanor shoplifting; and (3) substantial evidence did not support the finding that the value of the stolen merchandise exceeded $950. Even if the jury had been properly instructed, the Court of Appeal concluded its finding regarding the fair market value of the stolen merchandise was not supported by substantial evidence. Accordingly, the Court reduced Grant’s grand theft conviction to petty theft, reversed his burglary conviction, and remanded for resentencing.
California v. Lamoureux Docket: D077361 (Fourth Appellate District), Opinion Date: November 5, 2020. Defendant Patty Ann Lamoureux was convicted by jury for felony murder. The trial court vacated the conviction and resentenced her under Penal Code section 1170.95, the resentencing provision of Senate Bill No. 1437 (2017–2018 Reg. Sess.). Lamoureux was released from custody for time served and, although she had excess custody credits, the trial court exercised its discretion to place her on parole supervision for the statutory maximum of three years. On appeal, Lamoureux contended the trial court erred in declining to apply her excess custody credits to offset her three-year parole supervision period. Additionally, she claimed: the court failed to articulate a rational method of computation when it imposed a $560 restitution fine; erred by not applying her excess custody credits to offset her restitution fine; and miscalculated her presentence custody credits. With respect to the offset, the Court of Appeal determined the trial court did not err in declining to reduce Lamoureux's parole supervision period by her excess custody credits. As to Lamoureux's remaining arguments, the Court of Appeal concluded she forfeited the challenge to restitution by failing to object at trial court. The issue of her entitlement to additional presentence custody credits was moot, but those excess custody credits had to be applied to offset the restitution fine in its entirety.
Ninth Circuit Court of Appeals United States v. Bacon Docket: 18-50120, Opinion Date: November 5, 2020. The Ninth Circuit voted to rehear this case en banc to consider what the proper remedy is on appeal when it concludes that a district court has erred under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), by admitting or excluding expert testimony on one ground, but when it cannot tell from the record whether the admission or exclusion was nevertheless correct on other grounds. Recognizing that there are different circumstances involved in every case, the en banc court concluded that a bright-line rule requiring a specific remedy is inappropriate. Instead, each panel should fashion a remedy "as may be just under the circumstances." 28 U.S.C. 2106. The en banc court explained that the remedy may include remanding for a new trial or remanding for the district court to first determine admissibility, then requiring a new trial only if that admissibility determination differs from that in the first trial. In this case, the en banc court remanded to the three-judgment panel so that the panel may, in its discretion, determine the appropriate remedy.
U.S. Supreme Court Taylor v. Riojas Docket: 19-1261, Opinion Date: November 2, 2020. Taylor, a Texas inmate, alleges that in September 2013, correctional officers confined him in a cell covered, nearly floor to ceiling, in “ 'massive amounts’ of feces.” Taylor did not eat or drink for nearly four days. Officers then moved Taylor to another, frigidly cold cell, which was equipped with only a clogged floor drain to dispose of bodily wastes. Taylor held his bladder for over 24 hours, but eventually, involuntarily relieved himself, causing the drain to overflow and raw sewage to spill across the floor. The cell lacked a bunk and Taylor was confined without clothing; he was left to sleep naked in sewage. The Fifth Circuit held that such conditions of confinement violate the Eighth Amendment’s prohibition on cruel and unusual punishment but, concluding that “[t]he law wasn’t clearly established” that “prisoners couldn’t be housed in cells teeming with human waste” “for only six days,” the court held that the prison officials did not have “ 'fair warning’ that their specific acts were unconstitutional.” The Supreme Court vacated. The officers were not entitled to qualified immunity; no reasonable correctional officer could have concluded that, under these extreme circumstances, it was constitutionally permissible to house Taylor in such deplorably unsanitary conditions for an extended period of time. There was no evidence that the conditions of Taylor’s confinement were compelled by necessity or exigency nor that those conditions could not have been mitigated, either in degree or duration. While an officer-by-officer analysis will be necessary on remand, the record suggests that at least some officers involved in Taylor’s ordeal were deliberately indifferent to the conditions of his cells.
LA Times Urges Supreme Court To Use McDaniel Appeal To End State’s Death Penalty
11/2/2020--The Los Angeles Times editorial board today urged the Supreme Court to “throw[ ] out th[e] barbaric practice” of California’s death penalty. The board says the court should do so in People v. McDaniel.
Even though acknowledging the McDaniel case doesn’t present that broad issue, the Times nonetheless “hope[s] that the court recognizes the power of the moment it is in,” and it continues, “Over the past several months the nation has been forced to confront systemic racism and to recognize that the criminal justice system is not necessarily just.” The editorial says it “is incontrovertible” that “[t]he death penalty, in California as elsewhere, falls disproportionately on Black and Latino men.”
McDaniel, like all California cases in which the death penalty has been imposed, is in the Supreme Court by automatic direct appeal. It became unusually prominent when the court in June asked the Attorney General for briefing on an issue that had seemed settled against defendants — whether state statutory and constitutional law requires a penalty-phase jury that is choosing between death and life without the possibility of parole must unanimously determine beyond a reasonable doubt factually disputed aggravating evidence and the ultimate penalty verdict.
Since the supplemental briefing order, the court has received a number of amicus briefs, including ones by Governor Gavin Newsom and six current or former district attorneys. Similar to the Times editorial, the Governor’s brief argues, “California’s capital punishment scheme is now, and always has been, infected by racism,” and the district attorneys, although disagreeing among themselves about abolishing capital punishment, say that “death sentences are arbitrarily imposed under the current California death penalty statutes” and that whether the death penalty is imposed is influenced by “impermissible factors, such as the race and ethnicity of the defendant and the victim.”
Clemency Ruling Backlog
10/30/2020--Under the state constitution, at least four Supreme Court justices must recommend clemency before the Governor can pardon, or commute the sentence of, someone who has been “twice convicted of a felony.” Governor Gavin Newsom currently has 15 recommendation requests waiting for court action, and the wait has been unusually long. There are 5 pardon requests: Jeffrey Hunerlach, John W. Nolen, Jr., Eugene Arnold, Gene Baker, and Jeffrey Smith; and 10 commutation requests: Benjamin Guerra, Anthony Banks, George Hughes, Carlos Guerrero, Gregory Fletcher, Jose Barajas, Larry Garcia, Omar Walker, Tracey Pabon, and Tyrone Haymond. The oldest two requests have been pending for over six months. The most recent eight were submitted in August. By comparison, the Governor’s first 13 requests — all of which were granted — were on the court’s docket for a median time of just five weeks before rulings, and all but two were acted on within seven weeks. The two outliers took 15 and 20 weeks. The last time the court was taking a long time to act, we speculated that the court or an individual justice might be writing a statement to address unanswered questions about how clemency recommendation requests are reviewed. That turned out not to be the case then, but maybe it will be now.
People v. Ruiz Court: California Courts of Appeal, Docket: A153153 (First Appellate District), Opinion Date: October 27, 2020. Ruiz, convicted of sex crimes against his minor daughter, was sentenced to 44 years to life. The court of appeal rejected Ruiz’s argument that the trial court’s admission into evidence of the minor’s incriminating out-of-court statements to a social worker violated his confrontation clause rights and affirmed his convictions for continuous sexual abuse of a child under 14 and for forcible rape of a child under 14. The social worker’s primary purpose in interviewing the minor was to assess the child’s safety and the minor’s primary purpose in responding was to stop the abuse. The interview was informal and brief; it was a nontestimonial encounter to address an emergency situation. The court reversed his conviction for oral copulation or sexual penetration of a child 10 or younger, section 288.7, finding that the corpus delicti rule was not satisfied regarding that count; the rule requires, when a defendant makes extrajudicial incriminating statements, that there also be independent evidence of the corpus delicti (the body of the crime itself), in order to convict. The court noted forensic evidence and Ruiz’s own statements with respect to the other counts.
People v. Lopez Court: California Courts of Appeal, Docket: A158840 (First Appellate District), Opinion Date: October 29, 2020. In 2009, Lopez was convicted in criminal court of murder and related charges based on his actions at age 17. In 2019, the court recalled his sentence and resentenced him under Penal Code section 1170(d)(1) to remove a gang-benefit enhancement in light of an intervening California Supreme Court decision. Before the resentencing, Lopez moved to have a juvenile court hold a transfer hearing based on 2016’s Proposition 57, which eliminated prosecutors’ ability to directly file charges against minors in criminal court; a juvenile court must first conduct a “transfer hearing” to determine whether a matter should remain in juvenile court or be transferred to adult court. The trial court denied the motion concluding that Proposition 57 did not apply despite the resentencing, because Lopez’s original sentence became final before Proposition 57 took effect. The court of appeal conditionally reversed and remanded for a juvenile court to conduct a transfer hearing. Because section 1170(d)(1) resentencing replaces the original sentence, the only sentence that matters is the new sentence, which is not final because a resentenced defendant can still obtain review from the California Supreme Court or the U.S. Supreme Court. The mere existence of the resentence makes the original sentence irrelevant. Lopez is entitled to a retroactive transfer hearing.
People v. Foley Court: California Courts of Appeal, Docket: B299677 (Second Appellate District), Opinion Date: October 23, 2020. Defendant was convicted of sexually molesting his two granddaughters, F. and A. The Court of Appeal held that defendant's previous conviction for molesting A.—suffered in an entirely separate proceeding that concluded long before the trial of his offenses against F.— does not fall within Penal Code 667.61, subdivision (e)(4)'s multiple victim circumstance as a matter of law. Therefore, the trial court should not have instructed on the multiple victim circumstance or submitted it to the jury. The court explained that, because sentencing under the One Strike law in the absence of a valid qualifying circumstance is an unauthorized sentence, the One Strike sentences on counts 6, 7, and 8 are unauthorized. The court struck the multiple victim circumstances and remanded for resentencing. The court affirmed in all other respects.
California v. Barton Court: California Courts of Appeal, Docket: D072639A (Fourth Appellate District), Opinion Date: October 26, 2020. Jeffrey Barton was convicted by jury on five counts of forcible oral copulation, and one count of forcible sodomy. The jury reached its verdict only after the trial court discharged a holdout juror (Juror No. 12), after it found she was refusing to deliberate. Thereafter, the trial court sentenced Barton to a prison term of 48 years. Barton appealed, contending, inter alia, the trial court abused its discretion by discharging Juror No. 12 on the basis that she was refusing to deliberate. Barton contended the other jurors’ testimony demonstrated only that Juror No. 12 disagreed with the other jurors, who found her to be unfriendly and unable to offer persuasive explanations for her opinion, not that she was unable or unwilling to deliberate. To this, the Court of Appeal agreed: under the heightened standard of review that applies to a trial court’s decision to discharge a holdout juror for refusing to deliberate, the Court concluded the trial court’s decision to discharge Juror No. 12 was not manifestly supported by evidence. Accordingly, the Court did not address Barton’s other contentions on appeal, other than his challenge to the sufficiency of the evidence, and reversed the judgment.
California OIG Report: COVID-19 REVIEW SERIES, Part Two: The California Department of Corrections and Rehabilitation Distributed and Mandated the Use of Personal Protective Equipment and Cloth Face Coverings; However, Its Lax Enforcement Led to Inadequate Adherence to Basic Safety Protocols.
In April 2020, Speaker of the California Assembly, Anthony Rendon, requested the Office of the Inspector General to assess the policies, guidance, and directives the California Department of Corrections and Rehabilitation (the department) had implemented since February 1, 2020, in response to the novel coronavirus disease (COVID-19). This second report focuses on the department’s distribution of PPE to departmental staff and incarcerated persons as well as staff’s adherence to policies concerning cloth face coverings and physical distancing.
In this report, we conclude that despite nationwide shortages early in the COVID-19 pandemic, the department was generally able to procure and maintain supplies of PPE for its staff. In addition, the department purchased more than 752,000 cloth face coverings produced by the California Prison Industry Authority, and by April 9 had delivered more than half of those face coverings to prisons for use by staff and incarcerated persons. However, although the department distributed cloth face coverings to its staff and incarcerated population, issued memoranda requiring their use, and also implemented physical distancing requirements, our staff observed that staff and incarcerated persons frequently failed to adhere to those basic safety protocols. Our observations were also supported by departmental staff we surveyed at several prisons, as many of them reported observing staff and incarcerated persons failing to comply with face covering and physical distancing requirements. The frequent noncompliance by staff and incarcerated persons was likely caused at least in part by the department’s supervisors’ and managers’ lack of enforcement of the requirements. Despite the frequent noncompliance observed by our staff and by the departmental staff we surveyed, we found that prison management statewide only referred seven of the department’s more than 63,000 employees for formal investigations or punitive actions for misconduct related to face covering or physical distancing requirements. Furthermore, in June 2020, the department perplexingly loosened its face covering requirements at the same time it reported increasing cases of COVID-19 among both its staff and incarcerated persons.
Unless departmental management clearly communicates consistent face covering guidelines that are enforceable, and effectively ensures that its managers and supervisors consistently take disciplinary action when they observe noncompliance, the department will continue to undermine its ability to enforce basic safety protocols, increasing the risk of additional, preventable infections of COVID-19.
People v. Lewis S260598, Supreme Court of California. On 10/27/2020, the Court granted an extension of time for the following groups to file amicus curiae briefs: American Northern Civil Liberties Union Foundation of Northern California, Inc., The Justice Collaborative Institute, California District Attorney's Association, and the California Attorneys for Criminal Justice. The briefs are due by 11/16/2020. Recall that on 03/18/2020 the Court granted the petition for review in this case. The issues to be briefed and argued are limited to the following: (1) May superior courts consider the record of conviction in determining whether a defendant has made a prima facie showing of eligibility for relief under Penal Code section 1170.95? (2) When does the right to appointed counsel arise under Penal Code section 1170.95, subdivision (c)? We will be following this case closely and report any developments.
Claiming “Racial Discrimination Infects The Administration Of California’s Death Penalty,” Governor Submits Amicus Brief Supporting Defendant’s Appeal
10/26/2020--Arguing that “California’s capital punishment scheme is now, and always has been, infected by racism,” Governor Gavin Newsom today submitted to the Supreme Court an amicus curiae brief in support of a defendant’s automatic direct appeal. In the appeal — People v. McDaniel — the court four months ago directed the Attorney General to respond to questions “raised in . . . appellant’s Opening Brief: Do Penal Code section 1042 and article I, section 16 of the California Constitution require that the jury unanimously determine beyond a reasonable doubt factually disputed aggravating evidence and the ultimate penalty verdict? If so, was appellant prejudiced by the trial court’s failure to so instruct the jury?” In the past, the court has routinely summarily rejected defense arguments based on the unanimity issue. The issue is clearly now being reevaluated. A news release by the Governor’s office says this is “the first time in California history that a sitting governor has filed an amicus brief calling attention to the unfair and uneven application of the death penalty, noting the state’s bedrock responsibility to ensure equal justice under the law applies to all people no matter their race.” Well, the brief hasn’t been filed yet. The Chief Justice must give her permission first (rule 8.520(f)), which she most probably soon will. Only the Attorney General need not ask permission to file an amicus brief, “unless the brief is submitted on behalf of another state officer or agency.” (Rule 8.520(f)(8).) The Chief Justice has already permitted the filing of three other amicus briefs in McDaniel. Additionally, and besides the Governor’s submission, an amicus brief supporting the defendant was submitted today by six present or former district attorneys, including former Los Angeles District Attorney Gil Garcetti and former San Francisco District Attorney (and current candidate for Los Angeles District Attorney) George Gascón.
In re Von Staich Court: California Courts of Appeal, Docket: A160122 (First Appellate District), Opinion Date: October 20, 2020. Von Staich is incarcerated at San Quentin State Prison, based on 1986 second-degree murder and attempted murder convictions. In May 2020, he sought habeas corpus relief, citing the COVID-19 pandemic. Shortly thereafter, San Quentin suffered a COVID-19 outbreak that infected approximately 75 percent of the inmate population and dozens of prison staff in just weeks. Von Staich is 64 years old and suffers respiratory problems resulting from bullet fragments lodged in his lung; he claimed that he and a 65-year-old cellmate, both of whom had tested positive for COVID-19 (Van Staich was asymptomatic), were in an extremely small open cell and that there is no opportunity for social distancing. The court directed the Warden to transfer Von Staich to a suitable quarantine location, finding that the Warden and the California Department of Corrections and Rehabilitation (CDCR) have acted with deliberate indifference. There is ongoing federal litigation concerning inadequate medical care due to severe overcrowding in the California correctional system and San Quentin has particular risk factors, caused by the age and architecture of the facility. The court acknowledged that the existing Eighth Amendment violation will continue until the population at San Quentin can be reduced to the 50 percent level. Unless CDCR’s existing expedited release programs are sufficient to promptly achieve this population reduction—which, the sheer numbers indicate they cannot be—CDCR will have to find additional means of releasing or transferring prisoners out of San Quentin.
Guerrero v. Hestrin Court: California Courts of Appeal, Docket: E072470 (Fourth Appellate District), Opinion Date: October 21, 2020. In 2014, a single Riverside County, California Superior Court judge signed 602 orders authorizing wiretaps, which was approximately 17 percent of all wiretaps authorized by all the state and federal courts in the nation. In 2015, the same judge and one other authorized 640 wiretaps, approximately 15 percent of all wiretaps in the country. Plaintiff-appellant Miguel Guerrero was targeted by a wiretap that a Riverside County judge authorized in 2015. Guerrero, who had never been arrested or charged with a crime in connection with the wiretap, wanted to know why he was targeted, and he believed the sheer number of wiretaps in those years raised significant doubts about whether the wiretaps complied with constitutional requirements. Relying on California's wiretap statutes and the First Amendment, he asked a trial court to allow him to inspect the wiretap order, application and intercepted communications. The trial court denied this request. After review, the Court of Appeal determined the trial court applied the wrong standard in considering Plaintiff's application under wiretap statutes, which closely paralleled statutes under federal law. The matter was remanded so that the trial court could properly exercise its discretion, and the Court provided guidance on the appropriate standard. Given this holding on the statutory issue, the Court declined to address the contention, advanced by Guerrero and an amicus brief, that the public had a First Amendment right of access to the wiretap materials.
California v. Marquez Court: California Courts of Appeal, Docket: G058719 (Fourth Appellate District), Opinion Date: October 20, 2020. Mario Marquez appealed a postjudgment order striking his petition for resentencing made pursuant to Penal Code section 1170.95, enacted as part of Senate Bill No. 1437 (2017-2018 Reg. Sess.). The trial court struck Marquez’s petition on the ground that Senate Bill No. 1437 violated article II, section 10, subdivision (c) of the California Constitution by amending Proposition 7 (Ballot Pamp., Gen. Elec. (Nov. 7, 1978)) and Proposition 115 (Ballot Pamp., Primary Elec. (June 5, 1990)). In 2007, a jury found Marquez guilty of first-degree murder, second degree robbery, carjacking, willful evasion of a police officer with reckless disregard for the safety of persons or property, and unlawful possession of a firearm by a felon. The trial court sentenced Marquez to a term of 70 years 8 months to life in prison. A panel of the Court of Appeal affirmed the judgment (modified to strike the one-year sentence enhancement under Penal Code 667.5(b). Marquez argued that retroactive application of Senate Bill No. 1437 by means of the petitioning process of section 1170.95 conflicted with the Victims’ Bill of Rights Act of 2008 (Marsy’s Law) and violated the separation of powers doctrine. The Court of Appeal reversed with directions to consider the petition on the merits, and partially published its opinion because the issues of whether Senate Bill No. 1437 conflicted with Marsy’s Law and whether Senate Bill No. 1437 violated the separation of powers doctrine have not been addressed in a published opinion of this division. On those issues, the Court concluded Senate Bill No. 1437 neither conflicted with Marsy’s Law nor violated the separation of powers doctrine. In the nonpublished part of the opinion, the Court concluded Senate Bill No. 1437 did not unconstitutionally amend Proposition 7 or Proposition 115.
People v. Henderson Court: California Courts of Appeal Docket: B298366 (Second Appellate District), Opinion Date: September 14, 2020. The Court of Appeal affirmed defendant's conviction and sentence for two counts of assault with a semiautomatic firearm (one for each of two victims), one count of possession of a firearm by a felon, and one count of assault by means likely to produce great bodily injury. The court held that defendant has not shown in this appeal that his trial attorney provided ineffective assistance at trial because the record does not disclose why his lawyer chose not to call the witness or that his attorney's decision was below the standard of care. The court also held that the trial court did not have discretion to impose concurrent sentences on the two convictions for assault with a semiautomatic firearm. The court stated that Proposition 36 eliminated a trial court's discretion to impose concurrent sentences on convictions for multiple serious or violent felonies.
California v. Lombardo Court: California Courts of Appeal Docket: C090041 (Third Appellate District), Opinion Date: September 11, 2020. In 1996, a jury found defendant Vincent Lombardo guilty of second degree murder. In 2019, defendant filed a petition for resentencing under newly enacted Penal Code section 1170.95, which was enacted as part of Senate Bill No. 1437 (Stats. 2018, ch. 1015). The superior court denied the petition because, in its view, Senate Bill 1437 impermissibly amended Proposition 7 (Ballot Pamp., Gen. Elec. (Nov. 7, 1978) text of Prop. 7) and Proposition 115 (Ballot Pamp., Primary Elec. (June 5, 1990) text of Prop. 115). The Court of Appeal disagreed with the superior court and agreed with the unanimous conclusion of other appellate courts that have addressed the issue: Senate Bill 1437 was not an invalid amendment of either Propositions 7 or 115. Though the superior court did not clearly rule on the issue, the parties also asked the Court of Appeal to determine whether Senate Bill 1437 violated Marsy’s Law (Ballot Pamp., Gen. Elec. (Nov. 4, 2008) text of Prop. 9). To this, the Court concluded it did not, thereby agreeing with the unanimous conclusion of other appellate courts on this issue too. Judgment was reversed and the matter remanded for further proceedings.
United States v. Qazi 9th Circuit Docket: 18-10483, Opinion Date: September 17, 2020. The Ninth Circuit reversed defendant's conviction for being a felon in possession of a firearm. In United States v. Du Bo, 186 F.3d 1177, 1179 (9th Cir. 1999), an indictment missing an essential element that is properly challenged before trial must be dismissed. At issue in this appeal was whether defendant properly challenged his indictment pre-trial, thereby triggering the Du Bo rule. The panel followed its well-established obligation to construe pro se filings liberally and held that defendant properly challenged his indictment under Du Bo's automatic-dismissal rule. In this case, defendant's indictment neither tracked the language of 18 U.S.C. 922(g) nor set forth the elements of the offense, because it did not allege that he had knowledge of his felon status pursuant to Rehaif v. United States, 139 S. Ct. 2191 (2019). Therefore, the panel directed the district court to dismiss his indictment.
AB 3234 - This bill authorizes a judge in the Superior Court in which a misdemeanor is being prosecuted to offer misdemeanor diversion to a defendant over the objection of a prosecuting attorney, except as specified. Authorizes the judge to continue a diverted case for a certain period and order the defendant to comply with the terms the judge deems appropriate. Requires the judge, at the end of the diversion period, and if the defendant complies with all required terms, to dismiss the action against the defendant. Even more important, this bill would modify the minimum age limitation for the Elderly Parole Program to 50 years of age and instead require the inmate to have served a minimum of 20 years of continuous incarceration in order to be eligible for that program. It recently passed 2nd Chamber and was enrolled on 09/08/2020. It has a high chance to pass next stage.
AB 2342 - Creates a program under which the length of a parolee's period of parole could be reduced through credits earned by successfully completing specified education, training, or treatment programs, or by participating in volunteer service, while adhering to the conditions of parole. Makes this program inapplicable to a person who is required to register as a sex offender. Increases the travel restriction for a parolee who successfully participates in the parole credit program. It recently passed 2nd Chamber and was enrolled on 09/08/2020. It has a high chance to pass next stage.
SB 1064, Skinner. Prisons: confidential informants. On September 10, 2020 at 3pm, this bill was enrolled and presented to the Governor.
Existing law establishes the Department of Corrections and Rehabilitation, and grants the department authority over state prison facilities. Existing law authorizes the department to prescribe and amend rules and regulations for the administration of the prisons. Existing law establishes the Board of Parole Hearings, and authorizes the board to conduct parole consideration hearings.
This bill would prohibit an employee of, or private entity under contract with, the department from finding any state prisoner guilty of a rules violation if that finding or decision is based on, or relies on, in whole or in part, any information from an in-custody confidential informant that is neither corroborated nor reliable. The bill would additionally prohibit an employee of, or private entity under contract with, the board from making a finding or decision about any state prisoner that is based on, or relies on, in whole or in part, uncorroborated allegations from an in-custody confidential informant that have not been found true following a disciplinary hearing at which the subject was provided notice, among other requirements. The bill would require a state prisoner to receive, 10 days before these types of proceedings, a summary notice of any information provided by an in-custody confidential informant that may be used in the decision that includes, among other things, the actual or approximate date the information was provided to the department. The bill would define when information from an in-custody confidential informant is corroborated or reliable.
BILL TEXT. SECTION 1. Section 5016 is added to the Penal Code, to read:
5016. (a) An employee of, or private entity under contract with, the Department of Corrections and Rehabilitation shall not find any state prisoner to be guilty of a rules violation, if the finding or decision is based on, or relies on, in whole or in part, any information from an in-custody confidential informant that is neither corroborated nor reliable under paragraph (2) of subdivision (d).
(b) An employee of, or private entity under contract with, the Board of Parole Hearings shall not make a finding or decision about any state prisoner that is based on, or relies on, in whole or in part, uncorroborated allegations from an in-custody confidential informant that have not been found true following a disciplinary hearing at which the subject was provided notice, an opportunity to confront nonconfidential witnesses before an impartial hearing body, a written statement of the evidence relied upon, a written statement of the reasons for the decision, and an opportunity for appeal.
(c) At least 10 days prior to any proceeding in which a decision described in subdivision (a) or (b) is made or considered, the state prisoner shall receive a summary notice of any information provided by an in-custody confidential informant that may be used in the decision. In the case of a proceeding before the Board of Parole Hearings at which the state prisoner has attorney representation, the state prisoner’s attorney shall also receive the same summary notice. The summary notice shall include all of the following:
(1) A detailed description of the information provided by the in-custody confidential informant.
(2) The actual or approximate date the information was provided to the department.
(3) The actual or approximate date of the events or actions referred to in the in-custody confidential informant’s report.
(4) The names of any receiving officers or other department officials who obtained and authored the in-custody confidential informant’s report.
(5) A brief overview of investigative steps taken by the receiving officer or other department official to confirm the facts reported and the in-custody confidential informant’s personal knowledge.
(6) A statement of whether the recipient of the confidential information has knowledge of whether the in-custody confidential informant previously provided information that proved to be true and that proved to be false, including the number of times, if known.
(7) The evidence used to corroborate the information. If the information is corroborated by another in-custody confidential informant, a summary notice pursuant to this subdivision shall also be provided with respect to the corroborating in-custody confidential informant. If corroboration is provided by a nonconfidential informant, that information shall be fully disclosed in the notice. If corroboration is provided by physical evidence, the physical evidence shall be fully disclosed in the notice and shall not be required to be returned to a state prisoner.
(8) A signed statement by an official at the rank of Correctional Counselor III, Correctional Captain, or higher that they have made the determination required by paragraph (2) of subdivision (d).
(d) As used in this section, the following definitions apply:
(1) A “state prisoner” is any person under the jurisdiction of the department who is not on parole.
(2) Confidential information is “corroborated” if information about the same person, act, time, and place has been separately and independently provided by another in-custody confidential informant, nonconfidential informant, or physical evidence. Confidential information is corroborated through investigation or through physical evidence. Information from an in-custody confidential informant is reliable if two or more of the following criteria are met:
(A) The information provided by the in-custody confidential informant is self-incriminating.
(B) The information provided is from nonconfidential sources.
(C) The in-custody confidential informant is the victim.
(D) The in-custody confidential informant successfully completed a polygraph examination.
(E) The sources and nature of the in-custody confidential informant’s personal knowledge of the events or actions.
(3) An “in-custody confidential informant” means a person in custody in any local, state, or federal jail, penal institution, or correctional institution, whose name and full statement has not been disclosed to the state prisoner who is the subject of the decision by the department or board.
NINTH CIRCUIT COURT OF APPEAL
United States v. Garcia Docket: 19-10073, Opinion Date: September 10, 2020. Defendant again appealed his conviction for possession with intent to distribute methamphetamine. In a prior appeal, the Ninth Circuit held that officers from the Salinas Police Department violated the Fourth Amendment when they entered defendant's home without a warrant, ostensibly to determine whether someone inside posed a threat to their safety or required emergency assistance. At issue in this appeal is whether, under the attenuation doctrine, the discovery of the suspicionless search condition after detaining and handcuffing defendant was an intervening circumstance that broke the causal chain between the initial unlawful entry and the discovery of the evidence supporting defendant's conviction in this case and the revocation of supervised release in the underlying case. The panel held that the evidence found in the search was not sufficiently attenuated from the constitutional violation. The panel balanced the three attenuation factors: 1) the temporal proximity between the unconstitutional conduct and the discovery of evidence; 2) the presence of intervening circumstances; and 3) the purpose and flagrancy of the official misconduct. The panel held that whatever role the officers' subjective good faith should play in the attenuation analysis, it is not enough to outweigh the other two factors. Under the totality of the circumstances, the panel concluded that even accepting the district court's finding that the officers acted in good faith, this fact alone is not enough to justify admission of the evidence. Therefore, the district court erred in denying defendant's motion to suppress and the panel reversed defendant's conviction.
CALIFORNIA COURTS OF APPEAL
California v. Zaheer Docket: D074972 (Fourth Appellate District), Opinion Date: September 8, 2020. Defendant Hashmatullah Zaheer was tried twice for sexual battery by restraint. He denied any wrongdoing. The case hinged entirely on the credibility of the victim, Martha M. In the first trial, Zaheer was nearly acquitted of the two felonies with which he was charged, with the jury voting 11‒1 in his favor on both counts. In the second trial, however, he was convicted of both felonies. A key aspect of the defense attack on Martha’s credibility involved the condition of the electronic door lock system in Zaheer’s car. In both trials, Martha testified in some detail about how Zaheer locked her inside the car by pressing a button on the driver’s side door. The defense countered that with evidence that the electronic locking mechanism in Zaheer’s car had not worked in years. In the second trial, however, defense counsel simply failed to establish the necessary predicate fact that Martha was in Zaheer’s Honda on the night in question. And despite having knowledge to the contrary, the prosecutor seized on this oversight to suggest for the first time during her closing argument that Zaheer might have been driving a company car. In a case that hinged entirely on whether the jury believed Martha, and with a jury in the first trial that largely did not, the Court of Appeal felt compelled to conclude that defense counsel’s error, compounded by the prosecutor’s comment, was prejudicial. Judgment was therefore reversed and the case remanded for further proceedings.
People v. Cooper Docket: A156880 (First Appellate District), Opinion Date: September 1, 2020. In 1994, Cooper raped Whitten, then pregnant, while Mitchell, kicked her in the face. Mitchell repeatedly jumped onto Whitten’s head. Both men threw a cinder block on her head. Cooper cut Whitten’s throat, possibly after she was dead. Cooper was charged with two counts of murder. Cooper pleaded no contest to one count of second-degree murder. At the plea hearing, Cooper’s attorney stated, “The district attorney indicated that he would write in his letter to the Board of Prison Terms that the evidence supports the theory that the defendant is not a direct actor here but an aider and abettor.” The prosecutor agreed. Cooper was sentenced to 15 years to life in prison Years later, Senate Bill 1437 altered liability for murder under the theories of felony murder and natural and probable consequences. Under Penal Code section 1170.95, eligible defendants may petition for resentencing. Cooper sought relief, alleging he pleaded no contest to murder because he believed he could have been convicted under the felony murder rule or the natural and probable consequences doctrine. The trial court denied the petition without appointing counsel. The court of appeal reversed. In 2020, the California Supreme Court granted review, in People v. Lewis, to decide when the right to counsel arises under section 1170.95(c) Pending the Lewis decision, the court concluded that the right to counsel attaches upon the filing of a facially sufficient petition. Even if an error in not appointing counsel may be harmless in some situations, such as when the petitioner is not entitled to relief as a matter of law, the error was prejudicial here.
People v. DelRio Docket: B298637 (Second Appellate District), Opinion Date: August 31, 2020. DelRio and his cousin Prieto drew on each other in front of a house on a cul-de-sac. Prieto shot 15 times but missed every time. DelRio fired twice, killing Prieto. Del Rio later testified that he did not drink or take drugs before the incident and was (illegally) carrying the pistol because he planned “a transaction” later in the day. He claims that a conversation with Prieto became hostile. Prieto drew a semiautomatic handgun, racked a round, and lifted the gun, stepping toward DelRio. DelRio claims he was “in fear of [his] life” and acted on impulse. Two weeks after the shootout, a deputy stopped DelRio while driving in a car with bullet holes. The same gun had fired the bullet found in DelRio’s car and the bullet found at the scene. Data from DelRio’s phone placed it near the scene at the time of the shootout. A jury convicted DelRio of second-degree murder and found firearm enhancement allegations true. The court of appeal reversed. The court erroneously excluded violent victim evidence about Prieto, including a shooting Prieto allegedly committed 10 days earlier; domestic violence; prior firearm possession convictions; schizophrenia linked with violent outbursts; and methamphetamine in Prieto’s blood the night of the shooting. The error was prejudicial. DelRio need not have known about Prieto’s past bad acts.
People v. Martinez Docket: B303086 (Second Appellate District), Opinion Date: August 31, 2020. Martinez pled guilty to unlawfully driving or taking a vehicle, identity theft, grand theft, and providing a police officer with false information and admitted to prior prison terms. The court imposed a split sentence of 56 months, two years of which was based on the two prison priors. Martinez was to serve the first two years in county jail, and the remaining 32 months on mandatory supervision. After a second violation of his terms of supervision, the trial court revoked supervision and ordered Martinez to serve the remainder of his sentence in county jail. Senate Bill No. 136, effective January 1, 2020, limited the applicability of prior prison term sentence enhancements to terms served for sexually violent offenses. Martinez argued he is entitled to have the two one-year prison priors stricken from his sentence. The court of appeal held that Martinez is entitled to request such relief from the trial court, and remanded. A split sentence consisting of a county jail term followed by mandatory supervision does not automatically become a final judgment of conviction for purposes of retroactivity when the time to appeal from the imposition of that sentence expires. If the trial court subsequently revokes supervision and the Legislature enacts an ameliorative statute before or during the pendency of an appeal from the revocation order, the defendant is entitled to seek relief under the new law.
People v. York Docket: B298635 (Second Appellate District), Opinion Date: September 3, 2020. The trial court agreed with the parties that Penal Code section 1170.95 and Senate Bill 1437 are not unconstitutional. In the published portion of the opinion, the court held that trial counsel was required to appoint counsel to defendant before ruling on his petition. In this case, the record provides no basis for determining that defendant was precluded from showing that he was not a major participant in the robbery and did not act with reckless indifference to human life. The court held that the jury's special circumstance finding, affirmed in 1996, approximately two decades before People v. Banks (2015) 61 Cal.4th 788, and People v. Clark (2016) 63 Cal.4th 522, were decided, does not preclude defendant from relief as a matter of law. The court explained that a pre-Banks and Clark special circumstance finding cannot preclude eligibility for relief under section 1170.95 as a matter of law, because the factual issues that the jury was asked to resolve in a trial that occurred before Banks and Clark were decided are not the same factual issues the Supreme Court has since identified as controlling. Furthermore, the court did not find recent authority to the contrary persuasive. Accordingly, the trial court reversed the order denying defendant's resentencing petition and remanded.
Governor sends eight more clemency requests to the Supreme Court, including four to commute LWOP sentences
08/24/2020 - Governor Gavin Newsom today asked the Supreme Court to allow him to commute the sentences of eight people. The court’s recommendations are constitutionally required because the eight have been “twice convicted of a felony.” The court has approved 13 of Newsom’s prior requests and denied none, which is a considerably better record than for former Governor Jerry Brown, who had the court block 10 intended clemency grants. There are now 15 Newsom clemency requests pending, two of them for over four months. The clemency candidates, and the publicly available information Newsom submitted about their criminal records, are:
George Hughes — the Governor wants to commute a life-without-parole sentence for a 1982 conviction of first-degree murder, three counts of robbery, and other charges. Hughes has two prior felony convictions for burglary. The commutation would make Hughes eligible for a parole suitability hearing.
Carlos Guerrero — the Governor wants to commute a 27-years-to-life sentence for a 2008 conviction of attempted murder and other charges. Guerrero also has a 2005 felony conviction for possession of a controlled substance for sale. The commutation would make Guerrero eligible for an earlier parole suitability hearing.
Gregory Fletcher — the Governor wants to commute a 68-years-to-life sentence for a 2003 conviction of robbery as a third strike and attempted robbery as a third strike. Fletcher has six prior felony convictions for attempted grand theft, armed robbery, selling a controlled substance, robbery, and attempted robbery. The commutation would make Fletcher eligible for an earlier parole suitability hearing.
Jose Barajas: the Governor wants to commute a sentence of 42 years and four months to life for a 1998 conviction of two counts of attempted murder, conspiracy to commit murder, and grand theft. Barajas has prior felony convictions for grand theft. The commutation would make Barajas eligible for an earlier parole suitability hearing.
Larry Garcia: the Governor wants to commute a life-without-parole sentence for a 1988 first degree murder conviction. Garcia has two prior felony convictions for robbery. The commutation would make Garcia eligible for a parole suitability hearing.
Omar Walker: the Governor wants to commute a life-without-parole sentence for a 1997 conviction of first-degree murder and robbery. Walker has a prior felony conviction for selling marijuana. The commutation would make Walker eligible for a parole suitability hearing.
Tracey Pabon: the Governor wants to commute a 50-years-to-life sentence for a 1994 conviction of two counts of robbery as a third strike. Pabon has prior felony convictions for armed robbery and robbery. The commutation would make Pabon eligible for an earlier parole suitability hearing.
Tyrone Haymond: the Governor wants to commute a life-without-parole sentence for a 1979 conviction of kidnapping for ransom resulting in bodily harm. Haymond has prior felony convictions for selling narcotics, violating federal narcotics laws, and forgery. The commutation would make Haymond eligible for a parole suitability hearing.
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