Thanks to a lovely listserv of dedicated attorneys I just learned about SB 775. SB 775 would expand SB 1437 to include attempted murder. It also would permit people convicted of voluntary manslaughter to petition for resentencing if they were prosecuted for murder on a now defunct theory. It’s one to watch folks!! 🙌🙏🤞👌
Yaaaas biatches!!! Using this case for my own Romero today. Love it. Check it.Continue reading “COA: three strikes sentence is absurd and error in 1101 (but bummer, harmless)”
In working on a prosecutorial misconduct argument today, I came across this lovely article by the legendary Chuck Sevilla called: “TRIVIALIZATION OF THE BURDEN OF PROOF BEYOND A
REASONABLE DOUBT TO MERE REASONABLENESS: CENTENO ERRORS I HAVE SEEN.” Centeno is the lovely case where the Cal Supreme Court smacked down the bullshit puzzle analogy to proof beyond a reasonable doubt and found IAC for not objecting. AND reversed. It has amazing language about watering down the standard. This article was great because it points out something that the DA constantly does, but I don’t think I previously recognized it as improper like in Centeno:
“The far more pervasive issue is when the prosecutor argues that proof beyond a reasonable doubt is satisfied by a showing of the “reasonableness” of the proof. This is often based on the prosecutor’s use of CalCrim 224 and 225 on circumstantial evidence, quoted in full at the end of this paper.”
check it out. object. File an in lim asking prosecutors read a laundry list of misconduct cases before closing. 🙂
Honestly i’m too tired to analyze beyond my perezhilton mark up. 4yo twins though. Here is my photo journalism of this amazing new case. Congrats to Kyle Gee for this well deserved victory!
People v Collins, F076683, Feb 2, 2021. Out of the 5th!
Justice Liu issued a concurrence yesterday in a denial of a petition for review (People v Montelongo) on a very important equal protection issue relating to youth offender parole hearings:
Concurring Statement by Justice Liu
In 2013, the Legislature passed Senate Bill No. 260 (2013-2014 Reg. Sess.), which enacted Penal Code section 3051. (All undesignated statutory references are to the Penal Code.) The bill required the Board of Parole Hearings to conduct youth offender parole hearings and consider release of offenders who committed specified crimes before the age of 18. (Legis. Counsel’s Dig., Sen. Bill No. 260 (2013-2014 Reg. Sess.).) In establishing this parole eligibility mechanism, the Legislature sought to account for the fact that “youthfulness both lessens a juvenile’s moral culpability and enhances the prospect that, as a youth matures into an adult and neurological development occurs, these individuals can become contributing members of society.” (Stats. 2013, ch. 312, § 1.) It was “the intent of the Legislature to create a process by which growth and maturity of youthful offenders can be assessed and a meaningful opportunity for release established.” (Ibid.)
Soon thereafter, the Legislature amended the age threshold for youth offenders to age 23 (Stats. 2015, ch. 471, § 2) and then age 25 (Stats. 2017, ch. 684, § 2.5). The Legislature made these changes in light of scientific evidence that “certain areas of the brain, particularly those affecting judgment and decision-making, do not develop until the early-to-mid-20s.” (Assem. Com. on Public Safety, Analysis of Assem. Bill No. 1308 (2017-2018 Reg. Sess.) as amended Mar. 30, 2017, p. 2.) The Legislature also extended parole hearings in the 25th year of incarceration to youth offenders sentenced to life imprisonment without the possibility of parole, but only for an offense committed before age 18. (People v. Contreras (2018) 4 Cal.5th 349, 381 (Contreras), citing § 3051, subd. (b)(4), as amended by Stats. 2017, ch. 684, § 1.5.)
I write to underscore that section 3051’s parole eligibility scheme – specifically, its exclusion of persons sentenced to life without parole for offenses committed between ages 18 and 25 – stands in “tension” with Miller v. Alabama (2012) 567 U.S. 460 (Miller). (People v. Montelongo (2020) 55 Cal.App.5th 1016, 1036 (conc. opn. of Segal, J.) (Montelongo).)Miller identified three significant differences between juveniles and adults that bear on culpability. “First, children have a ‘ “lack of maturity and an underdeveloped sense of responsibility,” ‘ leading to recklessness, impulsivity, and heedless risk-taking. [Citation.] Second, children ‘are more vulnerable . . . to negative influences and outside pressures,’ including from their family and peers; they have limited ‘contro[l] over their own environment’ and lack the ability to extricate themselves from horrific, crime-producing settings. [Citation.] And third, a child’s character is not as ‘well formed’ as an adult’s; his traits are ‘less fixed’ and his actions less likely to be ‘evidence of irretrievabl[e] deprav[ity].’ ” (Miller, supra, 567 U.S. at p. 471, citing Roper v. Simmons (2005) 543 U.S. 551, 569-570 (Roper).) “The Supreme Court based these conclusions on ‘what “any parent knows,” ‘ scientific research, and social science.” (Montelongo, supra, 55 Cal.App.5th at p. 1036 (conc. opn. of Segal, J.), citing Miller, at p. 471.)
Crucially, Miller explained that in this context “none of what [high court precedent has] said about children . . . is crime-specific.” (Miller, supra, 567 U.S. at p. 473.) The distinctive attributes of youth that mitigate culpability – transitory mental traits and environmental vulnerabilities – ” ‘are evident in the same way, and to the same degree,’ when a juvenile commits robbery or ‘when (as in [Miller]) a botched robbery turns into a killing.’ ” (Montelongo, supra, 55 Cal.App.5th at p. 1037 (conc. opn. of Segal, J.).)I write to underscore that section 3051’s parole eligibility scheme – specifically, its exclusion of persons sentenced to life without parole for offenses committed between ages 18 and 25 – stands in “tension” with Miller v. Alabama (2012) 567 U.S. 460 (Miller). (People v. Montelongo (2020) 55 Cal.App.5th 1016, 1036 (conc. opn. of Segal, J.) (Montelongo).)
Miller identified three significant differences between juveniles and adults that bear on culpability. “First, children have a ‘ “lack of maturity and an underdeveloped sense of responsibility,” ‘ leading to recklessness, impulsivity, and heedless risk-taking. [Citation.] Second, children ‘are more vulnerable . . . to negative influences and outside pressures,’ including from their family and peers; they have limited ‘contro[l] over their own environment’ and lack the ability to extricate themselves from horrific, crime-producing settings. [Citation.] And third, a child’s character is not as ‘well formed’ as an adult’s; his traits are ‘less fixed’ and his actions less likely to be ‘evidence of irretrievabl[e] deprav[ity].’ ” (Miller, supra, 567 U.S. at p. 471, citing Roper v. Simmons (2005) 543 U.S. 551, 569-570 (Roper).) “The Supreme Court based these conclusions on ‘what “any parent knows,” ‘ scientific research, and social science.” (Montelongo, supra, 55 Cal.App.5th at p. 1036 (conc. opn. of Segal, J.), citing Miller, at p. 471.)Crucially, Miller explained that in this context “none of what [high court precedent has] said about children . . . is crime-specific.” (Miller, supra, 567 U.S. at p. 473.) The distinctive attributes of youth that mitigate culpability – transitory mental traits and environmental vulnerabilities – ” ‘are evident in the same way, and to the same degree,’ when a juvenile commits robbery or ‘when (as in [Miller]) a botched robbery turns into a killing.’ ” (Montelongo, supra, 55 Cal.App.5th at p. 1037 (conc. opn. of Segal, J.).)
The Legislature has recognized that Miller’s observations about juveniles also apply to young adults up to age 25. (Stats. 2017, ch. 684, § 2.5.) Yet it has excluded certain youth offenders from parole hearings based on the type of crime they committed. In particular, section 3051 does not allow for resentencing of 18- to 25-year-old offenders convicted of special circumstance murder and sentenced to life in prison without the possibility of parole. (§ 3051, subd. (h).) I agree with Justice Segal that “a juvenile offender’s eligibility for a youthful parole hearing should not hinge on the crime he or she committed, the statute under which the prosecutor elected to charge him or her, or the sentence mandated by statute. None of those factors is relevant to determining whether a young adult offender is irreparably corrupt.” (Montelongo, supra, 55 Cal.App.5th at p. 1041 (conc. opn. of Segal, J.).) In light of the high court’s clear statement that the mitigating attributes of youth are not “crime-specific” (Miller, supra, 567 U.S. at p. 473) and our Legislature’s recognition that those attributes are found in young adults up to age 25, it is questionable whether there is a rational basis for section 3051’s exclusion of 18- to 25-year-olds sentenced to life without parole.The Court of Appeal declined to resolve whether section 3051 violates equal protection because defendant raised this argument for the first time in his reply brief. (See Montelongo, supra, 55 Cal.App.5th at p. 1030, fn. 8.) But, as Justice Segal noted, “under section 3051, a young adult sentenced to an indeterminate prison term for premeditated first degree murder has an opportunity for parole, whereas Montelongo, who may not have intended to kill Brooks but was subject to a mandatory sentence of life without the possibility of parole (because the People did not seek the death penalty), does not.” (Id. at p. 1039 (conc. opn. of Segal, J.).) Indeed, the evidence in this case supported a finding of felony murder, which qualifies as first degree murder but does not require an intent to kill. (§ 189, subd. (a).)
As we observed in Contreras, there is a colorable claim that section 3051’s exclusion of certain juvenile offenders based on their controlling offense “violates principles of equal protection and the Eighth Amendment” or “constitutes ‘unusual punishment’ within the meaning of article I, section 17 of the California Constitution.” (Contreras, supra, 4 Cal.5th at p. 382; see People v. Williams (2020) 47 Cal.App.5th 475, review granted July 22, 2020, S262669; People v. Edwards (2019) 34 Cal.App.5th 183, 197, 199 [“section 3051’s carve-out for One Strike defendants violates principles of equal protection” and is “unconstitutional on its face”].) Because there is a substantial question whether section 3051’s exclusion of 18- to 25-year-olds sentenced to life without parole violates equal protection, “there is good reason for legislative reconsideration” of the statute. (In re Jones (2019) 42 Cal.App.5th 477, 486-487 (conc. opn. of Pollak, J.).)Further, in light of “changes in the legal and scientific landscape,” I join Justice Segal’s suggestion that the Legislature “reconsider the propriety, wisdom, and perhaps even the constitutionality of imposing a mandatory sentence of life without the possibility of parole on an 18-year-old.” (Montelongo, supra, 55 Cal.App.5th at p. 1040 (conc. opn. of Segal, J.); see id. at p. 1041 [“it may be time for the Legislature to rethink the old Roper line”].) Advances in scientific understanding have revealed that the ordinary process of neurological and cognitive development continues for several years past age 18, and our Legislature recognized as much when it extended youth offender parole eligibility to persons who committed their controlling offense at or before age 25. That recognition calls into question whether it is tenable, without an individualized showing of irreparable corruption, to lock up young adult offenders and throw away the key. If what the high court has said about juveniles also applies to young adults, then so does “the truth of Miller’s central intuition” that such offenders “who commit even heinous crimes are capable of change.” (Montgomery v. Louisiana (2016) 577 U.S. __, __ [136 S.Ct. 718, 736].)
|My former boss, Tom Nolan of Nolan, Barton and Olmos (www.nbo.law) is celebrating his 50th year as a criminal defense attorney. Below is a congratulatory email sent from his firm.|
On a personal note, I’d like to say that Tom is an amazing person to work for and learn from. Believe it or not, I was hired by Tom after responding to an ad on craigslist for a “temporary” attorney position to assist with a federal trade secret retrial. My post-bar clerkship at the public defender was ending during the economic crisis in 2009-2010. No public defender offices were hiring. He knew being a public defender was my dream, and fostered that dream throughout my time working for him. That job turned from temporary to permanent, until I left for the pd’s office. He lifted me up, and later hired me back, when my world crashed down and I realized I wasn’t cut to be a trial lawyer. He always supported me, even when I was a lunatic. He taught me crazy is alright.
What is remarkable about Tom, besides his cross-examination skills which believe me he uses outside of the courtroom–I think he crossed examined my then boyfriend, now husband, about when he was going to propose, which worked–is his brilliance in legal strategy. For example, he had an intentional, smart, strategy on that trade secret case that ultimately led to a dismissal by the federal government. Around 5pm, my now dear friend hero attorneys, would sit in his office, over drinks and snacks, brainstorming, laughing, and telling war stories. It is no wonder a Supreme Court justice called him a lion.
To this day, a decade after I worked for him, I call Tom for advice. I call him to share war stories. He has so many, and I could listen to them all day. Mostly, I call him a dear friend. Here is Tom.
Tom Nolan “Lion of the Bar” Celebrating 50 Years of Tenacity in the Courtroom
|2021 marks fifty years since Tom Nolan took up his calling and became one of California’s leading criminal defense attorneys.|
|Tom was admitted to practice law in January 1971. Ever since, he has been drawn to the most complex and difficult criminal cases. In the course of his storied career, he has represented clients in state and federal courts throughout California and the United States on charges of economic espionage, homicide, sex crimes, and numerous white-collar crimes.|
|No matter the case, Tom has always endeavored to understand the circumstances of each client’s life with empathy. Investing himself in his clients’ stories, he has fought for each and every individual, defending their rights and working to ensure that race, class, and other socio-political issues do not lead justice astray.|
|For fifty years, Tom has been a forceful and consistent voice for those who have needed it most. In 2012, Tom’s career accomplishments were recognized from the bench of the California Supreme Court when Justice Carol Corrigan referred to him as a “lion of the defense bar.” Today, Tom is Senior Partner at Nolan Barton & Olmos LLP, the firm he founded alongside attorneys Andrew Parnes, Charles Constantinides, and, later, Mike Armstrong. In 1977, the firm found its permanent home in Palo Alto at 600 University Avenue and quickly established itself as the professional home base for dedicated advocates representing the accused – both in the local community and throughout the country. As Senior Partner, Tom is proud to have his long-time friends and colleagues Dan Barton and Daniel Olmos taking up his legacy at the helm of Nolan Barton & Olmos LLP.|
|Tom has been certified by the State Bar of California, Board of Legal Specialization, as a criminal law specialist for more than thirty years. He was selected as one of the 100 Most Influential Lawyers in California by the Daily Journal and, for more than 25 years, has been listed in The Best Lawyers in America. In 2010, he was designated by Best Lawyers as “Lawyer of the Year” in the San Francisco Bay Area for criminal defense. Tom is a fellow of the American College of Trial Lawyers and the International Academy of Trial Lawyers. He served as President of California Attorneys for Criminal Justice. In addition to his work in the courtroom, Tom has contributed to the development of several generations of criminal defense attorneys. For 25 years, Tom taught at Stanford University’s School of Law as a lecturer and consulting professor and has mentored dozens of young and aspiring lawyers to practice criminal defense with passion and integrity.|
|Congratulations, Tom, for 50 years of serving the community as a fighter for justice!|
|NBO Office Updates The law firm Tom founded 50 years ago is flourishing, thanks in large part to his leadership and mentorship. Nolan Barton & Olmos LLP is a nationally-recognized firm with seven lawyers and an incredibly talented staff, all of whom are wholly dedicated to representing the rights of the accused in California and across the country. In 2020, during the COVID-19 global health pandemic, the firm grew, adding accomplished attorneys and law clerks who will carry on Tom’s legacy in the coming years and decades. Dan Barton and Daniel Olmos and everyone else at Nolan Barton & Olmos LLP strive to emulate Tom’s passion, dedication, and commitment to defending the Constitution and every single one of the firm’s clients.|
THANK GOODNESS. The California Supreme Court held today in In re Palmer (S256149) that a lifer’s sentence, while not cruel and unusual when imposed, can become cruel and unusual if the board continues to deny parole. Here, the petitioner was denied parole 10 times, w/a life sentence for a non-homicide crime committed as a juvenile. The First District held that he was entitled to release and to be entirely discharged from parole. (Note, while his habeas petition was pending parole granted him release.) The California Supreme Court technically reversed on the tangential issue about his discharge from parole. Although, they did say someone could argue that they should also be discharged from parole because that, too, had become cruel and unusual. Most importantly, though, the Supremes agreed that a lifer may show that his sentence has become cruel and unusual if the board is all: denied, denied, denied, denied, denied, denied, denied, denied, denied, denied.
So congrats Mr. Palmer and hoping this helps my lifer clients.
“We agree with the Court of Appeal that habeas corpus
relief is available to inmates whose continued incarceration has
become constitutionally excessive, but who have been denied
release by the Board. To the extent Palmer’s continued
incarceration at some point became constitutionally excessive,
though, that alone did not justify ending his parole under the
current statutory scheme. We therefore reverse the judgment
of the Court of Appeal.”
DAs love to talk about “accountability” for violating the law but then when a new law comes out that is favorable to our clients, they ask us to have our clients agree to violate it.
Meanwhile trial courts hate when the legislature removes their power over defendants and so they’re also not following the law or apparently failing to understand how it should work.
Case in point: DAs in multiple counties are trying to get around AB 1950. AB 1950 changed the max term of misdemeanor and felony probation to 1 yrs/2 yrs for many, but not all, crimes. DAs are trying to get folks to stipulate to 5 year probation as part of a plea bargain, saying they won’t offer a deal unless client agrees. that is illegal under the new law. Technically a court cannot give effect to that deal because a court cannot accept an unauthorized plea bargain. (See cites below.) As a practical matter, a court may accept it. I don’t think a defendant wouldn’t get anywhere if he took the deal then appealed the unlawful probation term because best case scenario is undoing the plea. Worst case scenario he invited the error by agreeing. So if a DA says well if you don’t agree to an illegal deal he can’t have CTS or probation, I’m not sure what can be done other than going up the chain of command and putting it on the record as unethical and coercive. These are cases about stipulating to an unauthorized sentence:
In re Williams (2000) 83 Cal.App.4th 936, 944, 100 Cal.Rptr.2d 144[“A plea bargain that purports to authorize the court to exercise a power it does not have is unlawful and may not be enforced”].) “Even if a defendant, the prosecutor and the court agree on a sentence, the court cannot give effect to it if it is not authorized by law. [Citation.] Thus, this is not the kind of situation which would entitle defendant to specific performance of the plea bargain [citations].” (People v. Jackson (1981) 121 Cal.App.3d 862, 869, 176 Cal.Rptr. 166; accord, People v. Harvey (1980) 112 Cal.App.3d 132, 139, 169 Cal.Rptr. 153 [“in computing one’s sentence under a plea bargain, even though agreed to by the parties, the court may not give effect to an enhancement unauthorized”.].)
Meanwhile, courts are flipping their shit for folks currently on probation past the 2 years who are, for example, in custody on a probation violation that occurred past the 2 year period or who, for example, haven’t yet filled out paperwork for restitution collection or had restitution affixed.
I do not think the court has the authority to do ANYTHING other than terminate probation if someone is outside the two years. I see this as no different from the court ordering something as a condition of probation after probation is terminated or arresting someone for a probation. violation when he is no longer on probation. Regardless of if the person is technically on probation because the court has not ruled on the AB 1950 motion to terminate, the probationary period is expired by law. The court has no discretion over whether granting or denying the motion to terminate so the court can’t put a pin in the motion to make any kind of restitution order or anything else. People v. Waters 241 Cal App 4th 822 addresses the court having no authority to order restitution once probation has expired. It has some good language for the basic jurisdictional principles that ought to apply here.
For folks so obsessed with following the law gotta wonder about their inability to see that they cherry pick which laws to follow.
Anytime anywhere in any courthouse at any hour in any case at any moment ever, please object if the prosecutor or court gives an analogy to beyond a reasonable doubt. Any analogy. Like I don’t care if it’s right. Just a brightline rule: judges and DAs do not analogize to BRD on my watch.
Current vibe: diet coke, rainy grey, skies, and reading a case where the court of appeal cites the Beatles to advise trial courts to avoid effing up the definition of BRD. It’s dicey man. Let the CALCRIM do the talking, no judges or DAs squawking.
People v. Johnson (2004) 119 Cal.App.4th 976:
“Just months ago, a Court of Appeal case confirmed Brannon’s enduring vitality. During jury selection, the court “amplified on the concept of reasonable doubt” by noting that although “we all have a possible doubt whether we will be here tomorrow” we “take vacations” and “get on airplanes” because we “have a belief beyond a reasonable doubt that we will be here tomorrow.” (People v. Johnson (2004) 115 Cal.App.4th 1169, 1171, 9 Cal.Rptr.3d 781.) The court rejected the notions “that people planning vacations or scheduling flights engage in a deliberative process to the depth required of jurors,” or “finalize their plans only after persuading themselves that they have an abiding conviction of the wisdom of the endeavor,” and “make such decisions while aware of the concept of ‘beyond a reasonable doubt.’ ” (Id. at p. 1172, 9 Cal.Rptr.3d 781.) In reliance on Brannon, the court reversed the judgment and ordered a new trial on the ground that “the trial court’s attempt to explain reasonable doubt had the effect of lowering the prosecution’s burden of proof.” (Ibid.)34Here, as in Brannon, the court’s tinkering with the statutory definition of reasonable doubt, no matter how well intentioned, lowered the prosecution’s burden of proof below the due process requirement of proof beyond a reasonable doubt. (In re Winship, supra, 397 U.S. at pp. 363–364, 90 S.Ct. 1068; see Cage v. Louisiana (1990) 498 U.S. 39, 40–41, 111 S.Ct. 328, 112 L.Ed.2d 339, disapproved on another ground in Estelle v. McGuire (1991) 502 U.S. 62, 73, fn. 4, 112 S.Ct. 475, 116 L.Ed.2d 385;*986People v. Brannon, supra, 47 Cal. at p. 97; cf. Pen.Code, § 1096.) Lamentably, “the essential connection to a ‘beyond a reasonable doubt’ factual finding cannot be made where the instructional error consists of a misdescription of the burden of proof, which vitiates all the jury’s findings.” (Sullivan v. Louisiana (1993) 508 U.S. 275, 281, 113 S.Ct. 2078, 124 L.Ed.2d 182.) The error “unquestionably qualifies as ‘structural error’ ” and compels reversal per se. (Id. at p. 282, 113 S.Ct. 2078;People v. Harris (1994) 9 Cal.4th 407, 427, 37 Cal.Rptr.2d 200, 886 P.2d 1193;People v. Evans (1998) 62 Cal.App.4th 186, 195–196, 72 Cal.Rptr.2d 543.)
Over a quarter of a century ago, a thoughtful Court of Appeal opinion collected cases from a number of jurisdictions on the fate of “innovative” and “[w]ell intentioned efforts” by trial courts “to ‘clarify’ and ‘explain’ ” reasonable doubt that instead created “confusion and uncertainty” and led to reversals on appeal. (People v. Garcia (1975) 54 Cal.App.3d 61, 63, 126 Cal.Rptr. 275.) A few excerpts from those cases are instructive: “[Citation]: ‘… [T]he term “reasonable doubt” best defines itself. All attempts at definition are likely to prove confusing and dangerous.’ [Citation]: ‘Every attempt to explain [the definition of reasonable doubt] renders an explanation of the explanation necessary.’ [Citation]: ‘It is in a term which needs no definition, and it is erroneous to give instructions resulting in an elaboration of it.’ [Citation]: ‘[G]enerally, the attempted definitions of [reasonable doubt] … are simply misleading and confusing, and not proper explanations of their meaning at all.’ [Citation]: ‘As it is difficult, if not impossible, to give a precise and intelligible definition of what a reasonable doubt is, without extending an instruction into almost a treatise upon the subject, … the better practice is to follow as nearly as practicable the language of the [statute], which is certainly as intelligible and as easily comprehended as the definition given in this case.’ ” (Id. at p. 66, 126 Cal.Rptr. 275.)
To any trial judge who feels the urge to clarify or explain reasonable doubt, we **787 commend the concise history of the reasonable doubt standard that appears in the latest CALJIC compendium. (California Jury Instructions, Criminal, Appendix B (Jan.2004 ed.).) Originating in English cases of centuries ago, that history came to fruition only in the past decade with “the universal approval” by federal and state courts alike of CALJIC No. 2.90, “conclusively settl[ing]” its “legal sufficiency and propriety.” (Id. at p. 1240.) We trust that any trial judge who reads that history will heed the two English bards whose sage advice antedated Garcia by only a few years: “Let it be.” (Lennon & McCartney (Northern Songs 1970) “Let It Be”.)”