Prop 64 resentencing

11 Nov

Check out Judge Couzen’s and Justice Bigelow’s memo on Prop. 64 marijuana resentencing (the new CA law which allows for resentencing for mj possession, sales, & transportation convictions, and others).  Memo Here. While there are likely many straightforward cases, there will be some stickier situations (eg what counts as a “prior conviction” that could bring your client into wobbler-land? what can the judge rely on to determine if the case is a transport or sale? Are the DAs going to contest this?).  At least from the memo above, it looks like the trial courts will rely on Prop. 47 and Prop. 36 case law. Contact your local public defender’s office or drug policy alliance for help on complicated issues, they’ve already been invaluable to me and ready to lend help.

Dear DA: No backsies!

10 Nov

Nice Supreme Court decision today: if a DA enters into a plea bargain and D later petitions for resentencing under Prop. 47, the DA is not allowed to take back the original plea bargain.  E.g., here, DA dismissed robbery to allow D to plead to theft.  D’s petition for resentencing under Prop. 47 was to be granted so DA wanted to take back the original plea bargain. The trial court said that’s all good.  The 2nd District said ya, we’s with the trial court.  The Supreme Court said no! No takesy backsies! This is a great result, especially if it will impact Prop. 57 and petitions for resentencing for weed sales.  Lovely.

what tha what? Dismissal of capital murder charges for VINDICTIVE PROSECUTION

28 Oct

Well I’ll be damned, first a reversal for IAC in failing to file a motion to dismiss for pre-charging delay (last week) and now a dismissal of several capital murder charges for vindictive prosecution.  Is good law being revived or is it just me?! (But see yesterday’s terrible opinion on a suppression issue in Lopez [].)

D appealed his death sentence/conviction and conviction was reversed by Cal Supreme Court.  On remand the prosecutor added several counts of capital murder that were previously uncharged.  D argued this was vindictive/punishing him for exercising his right to appeal.  On his side was that the DA’s office was either really stupid or actually ethical and essentially admitted at an evidentiary hearing that they added charges because his conviction was reversed.  Also, there was not a lot of new evidence that would explain why those murders were not originally charged.  The AG argued that really there was no issue with adding new charges for no other reason than that D won his appeal because he was already eligible for the death penalty for the existing charges such that a few more murders didn’t actually punish him.  You can only kill him once, they said.  Good one.  COA rejected this maybe because it’s fucking absurd?!  This opinion is long but important because it really sets forth a number of definitive standards for evaluating vindictive prosecution.  Also, what a win!

Battered homeless person syndrome = relevant evidence; 1st deg. murder conviction reversed

26 Oct

Super interesting case where the trial court excluded a proposed defense expert who would testify about how homeless people are more likely to be victims of crime of violence.  The testimony was offered to support the defendant’s imperfect self-defense claim to 1st degree murder.  The trial court excluded the evidence saying it was too general to be applicable to D and that the testimony was not beyond the common experience of jurors.  COA (1st Dist; case out of Sonoma) disagreed. The COA likened the evidence to battered women’s syndrome evidence and held it was relevant to both the subjective component of self-defense/imperfect self-defense and the objective component of self-defense because the jury was to consider whether the defendant’s belief that he was in danger was reasonable in light of all the circumstances.  The COA also held the evidence was relevant to corroborating statements D made to police about self-defense.  And, they held that the evidence was beyond the common experience of jurors.  Notably, the expert witness was a retired judge.  Pretty, pretty, pretty good.


Prejudicial error. Reversed. Booya.

Second victory for juveniles with LWOP sentences today

25 Oct

And another thing. 2nd Dist. COA also held today that when a trial court is going to hold a post-Graham hearing on whether LWOP is appropriate for a juvenile convicted of homicide, they have to make specific findings about “whether the juvenile offender’s crime reflects permanent incorrigibility arising from irreparable corruption.”  That language comes from the Supreme Court case Montgomery.  In this case, which was pre-Montgomery, the trial court focused on the nature of the crime and not the prospects for rehabilitation. Because the court never really applied the appropriate factors, the remedy was remand for resentencing.

Juveniles who were already resentenced from LWOP to Life can still petition for resentencing under 1170(d)

25 Oct

Lovely opinion today.  Juveniles were given LWOP. After Graham, they were resentenced to life with the possibility of parole. After 1170(d) was passed, which allows juveniles sentenced to LWOP to petition for resentencing and was enacted because of Graham, the now grown men petitioned for resentencing and were both released on probation with life terms suspended. The prosecution appealed, arguing that 1170(d) did not apply to them because they had already been resentenced from LWOP to life.  The COA disagreed, saying that the plain language of 1170(d) requires only that the juvenile was originally sentenced to LWOP and the statute makes no mention of the situation where a juvenile was originally sentenced to LWOP but then had that sentence modified due to Graham.  Apart from the beauty of the holding itself, this opinion is lovely because it has some good one-liners:

“The People seek refuge under the plain meaning rule. We understand the People’s point but we cannot, in good conscience, subscribe to the “‘dictionary school of jurisprudence.’” (See, e.g., People v. Clayburg (2012) 211 Cal.App.4th 86, 91.)”

“The People should not be hoist on their own “plain meaning” petard.”

“In an appropriate case, the letter of the law should gracefully and charitably succumb to the spirit of justice.”

Imma be quoting some of deeeese lines for days.

SVP Commitment reversed for insufficient evidence

24 Oct

Great opinion today from the 2nd Dist. on the sufficiency of the evidence that D suffered from a mental disorder that made him a danger to others by committing future sex crimes.

D’s diagnosis was “hebephilia” which is an interest in pubescent “minors”–neither pre pubescent nor post pubescent people…middle of the ground puberty.  WTF does that mean? Ya, good question. The diagnosis has been omitted from the DSM V because it is sketchy at best.  In this case, the prosecution expert also said he had no idea whether the particular minors D had sexual contact with were pre/post/middle of the ground pubescent because he did not see pictures of them so he had no way to know how developed they were.  Ie did they look like kids? Did they look like grown women? Did they look like teenagers?  The Court said that the expert’s testimony did not amount to substantial evidence that D suffered from this disorder.  This case is great first for the language about sufficiency of the evidence when a verdict/finding of fact relies on expert testimony and the factual basis for reaching the conclusion is not very solid.  (See also People v. Bassett).

This case is even better for because there is a really good footnote about the admissibility of evidence related to conditions omitted from the DSM V.  The footnote states that other states have found that the fact that hebephilia has been excluded from the DSM V means that the existence of the disorder not generally accepted within the scientific community and therefore inadmissible under Frye.  INTERESTING.  None of the parties had raised that issue below.  The Court did say that a disorder need not be part of the DSM V to qualify as an SVP disorder. But, still, I think the footnote is an invitation to argue that any disorder not recognized by the DSM V is not accepted in the scientific community and evidence related to it must be excluded.  On the flip side, the footnote could be used against us in the future if we want to raise some kind of mental health defense that relies on some kind of disorder not recognized by the DSM.

Oh, the good ole days. 1800s case law.

12 Oct

Came across this gem today while researching something totally unrelated. As someone who REGULARLY has typos in her work, I almost feel bad for the DA (but not really): conviction reversed because the DA wrote “larcey” instead of “larceny” in the charging document. The California Supreme Court aptly noted: “there is no such felony as “larcey” know to our law.” Because it is short, and amusing, here is the opinion in full. Bonus points if you ever raise this issue on appeal.

People v. St. Claire (1880) 56 Cal. 406

By the COURT:

The indictment charges an entry into a stable with intent to commit “larcey.” Burglary is the entering of a house, etc., “with intent to commit grand or petit larceny, or any felony.” (Pen. Code, § 459.) There is no such felony as “larcey” known to our law. “Larcey” is certainly not “larceny,” nor does the maxim, idem sonans, apply.
It is said that the Court must give judgment without regard to the technical errors or defects, or to exceptions which do not affect the substantial rights of the parties. (Pen. Code, § 1258.) But this is more than a departure from an established form; nor is it a case in which facts are averred in the indictment, which sufficiently indicate the sense in which the word purporting to name the crime is employed; but is a failure to describe any offense.
Judgment reversed, and cause remanded for a new trial.

IAC to fail to file a motion to dismiss for pre-charge delay…in a homicide?!

12 Oct

Well this one comes as a shocker! Motions to dismiss for a violation of a speedy trial right by pre-charge delay are generally losers — ESPECIALLY if the issue is a delay in charging a homicide. Am I wrong? Apparently. The Fourth District held today that an attorney was IAC for failing to do so in a case that had a 19-year delay.

Notably, the appellate court held that the delay was entirely justified. But, the delay was highly prejudicial because a key defense witness could not be located at the time of trial.  A few interesting tidbits in this opinion. First, the appellate court ordered an evidentiary hearing on this issue and the trial court made factual findings that the defense witness would not have been credible. The COA declined to defer to those factual findings because the trial court made them without ever having seen the witness testify.

Second, because this was an IAC issue and not an issue on the actual merits of any motion to dismiss, the case can be retried. This is interesting only because the COA went on to address the appropriate remedy and it was kind of nutty. The witness’ exculpatory statements were made to police on a tape recording. The COA held that assuming the witness could not be located for retrial, the appropriate remedy is not a dismissal; it is a retrial where the tapes will be played for the jury. The COA recognized that the statements were hearsay. The hearsay exception that would allow their admission, according to the COA? This is an unusual case and an outright dismissal would be too drastic a remedy so the tapes will be played, hearsay or not. Kinda nutty. Here’s to hoping the DA just gives this guy CTS.

CACJ’s bills passed/signed

4 Oct

Below are all the great CACJ sponsored/cosponsored crim law bills enacted this year (in addition to the bill making it a felony for prosecutors to withhold Brady):

AB 813 (Gonzalez) adds section 1473.7 to the Penal Code to create a vehicle for post-conviction relief in instances of ineffective assistance of counsel that has led to an adverse immigration consequence or where there is new evidence of actual innocence.

SB 1242 (Lara) makes PC 18.5 apply retroactively. In 2014, CACJ’s co-sponsored legislation to protect citizens who have committed low-level misdemeanors from being deported by minimizing the maximum misdemeanor sentence from 365 to 364 days.

SB 1389 (Glazer), requires the electronic recording of custodial interrogations for persons suspected of homicide.

AB 2655 (Weber) amends Penal Code 1305 to prevent the unjust practice of alleged  defendants having to post bail twice due to no fault of their own, giving     them the option of extending their bail for up to 90 days if the DA fails  to file charges.