Holy Cow! New Case Today: Stamps doesn’t apply to SB 136 !

Hot out of the First District today. Stamps does not apply to SB 136… meaning that if someone would otherwise be eligible to have his 667.5(b) priors stricken under SB 136, they must be stricken irrespective of if they were imposed as part of a plea bargain. I sort of assumed that because of Stamps (which analyzed SB 1393), people who pled and then later argued that the 667.5(b)s needed to be stricken would get, at best, a remand to let them w/draw or renegotiate their pleas. Take nothing for granted in this work. This is HUGE. People v. France (Dec. 15, 2020) A158609.

new law capping misdo probation at 1 year applies retroactively to nonfinal cases!!

“We hold here that amendments to Penal Code section 1203a, which generally limit the
maximum length of probationary terms for misdemeanor offenses to one year, apply
retroactively, to a case which will not become final on appeal as of the January 1, 2021
effective date of the statute.”

People v. Burton (Dec. 12, 2020)


(1) straight outta the 2nd reversed denial of romero and anyway the sentence was cruel and unusual under california constitution … so so so much good languagein this won [sic intended]:

“For these reasons, no reasonable person could agree that
the sentence imposed on Avila was just. Avila’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.
Despite the trial court’s characterization of the facts, Avila’s

current offenses were not violent and, on the spectrum of
criminal behavior, fall closer to the end of less reprehensible
conduct. Much of his criminal conduct appears to be related to
his drug addiction rather than to sinister motives and falls well
outside the realm of what could be considered the work of a
career criminal. We therefore conclude that the trial court
abused its discretion by denying Avila’s Romero motion.”

This is like too much i’m going to cry:

“Worse, Avila’s sentence is cruel or unusual punishment
under the California Constitution, article I, section 17.1…”

and you can bet your ass my ass is quoting this in like every brief on anything ever in the future:

“We are aware that lengthy sentences like the one imposed
on Avila have been common, especially when the Three Strikes
law was at play. However, common is not synonymous with
constitutional. What has become routine should not blunt our
constitutional senses to what shocks the conscience and offends
fundamental notions of human dignity. Crushing oranges, even
for the purpose of trying to steal or to extort money, is not
constitutionally worthy of the sentence imposed where, as here,
the defendant’s criminal history on close examination cannot
bear its share of such a sentence.”

Oh, and another thing:

“There comes a time when the people who populate the
justice system must take a fresh look at old habits and the
profound consequences they have in undermining our
institutional credibility and public confidence. In Avila’s case,
the time is now.”

check it: https://www.courts.ca.gov/opinions/documents/B294632.PDF ;

(2) ca sup ct reversed 2nd degree murder conviction for IAC for failing to investigate time of death https://www.courts.ca.gov/opinions/documents/S249274.PDF; and

(3) CA sup ct reverses fetal murder conviction in DP case because hearsay about viability of fetus. ETA: no error for admission of DNA cold hit evidence. https://www.courts.ca.gov/opinions/documents/S154459.PDF

New pot case 1538.5. Reversed!

1stDist. People v Hall (Nov. 24, 2020) A157868

Pot plain view in a car. burnt ashes and plastic baggie. Cop didn’t say if baggie was in a knot or open. cop didn’t say if he smelled burnt or unburnt pot.

Reversed. No PC.

H&S 11362.3 was not a justification. no evidence that the bag was open. It could have been knotted and a knotted bag isn’t open.

VC 23222 was not a justification, because the pot wasn’t on his person.

Just lovely.

That new case on the ridiculous most non-consensual encounter ever

Case on the 20th. In re Edgerrin, Fourth District, D076461. I summarized my feelings on instagram. Glad for the good law. Sad for the remedy. Sad for society that we can’t just call that intentional racism. Glad at least to see a mention of race. Sad it’s in the concurrence.

A nice one 6th district; finality and retroactivity for transportation of some weed

Well isn’t this pretty. Sixth District (way to go Lori Quick of SDAP), held yesterday in Lopez, H046618, that if someone is on probation that means his case is not “final” for purposes of retroactivity of an ameliorative law…i.e. he gets the benefit of the new law. This one was for transportation of weed, conviction well before Prop. 47. but presumably this has to apply to everything new and pretty and that’s good in the crimlaw world. Love this.

“Does suspending execution of sentence to place a defendant on mandatory
supervision constitute a final judgment for purposes of retroactively applying an ameliorative statutory amendment? We conclude there is no final judgment in that situation because sentencing is not actually complete. In other words, a defendant who remains on mandatory supervision is not yet subject to a final judgment. As a result, defendant Gustavo Lopez is entitled to retroactive application of a statutory amendment that made transporting a controlled substance for personal use a misdemeanor. We will reverse the trial court’s decision to the contrary.”

4th District busy bumble bees one is good, one is so so, and last one stings

Fourth district issued a great opinion today (People v. Barton, D072639) on erroneously dismissing a juror for refusing to deliberate. Reversed. REALLY thorough discussion about how the abuse of discretion standard for this issue is a little different and involves less deference than normal.

Meanwhile, they ordered the trial court in another case (People v. Shaw D076124) to strike four, one year priors under SB 136, but interestingly said they were remanding the case for a full blown resentencing hearing because the structure of the sentence changed. This is kind of an interesting issue. If I have a guy who was maxed out, I argue that he should get a full blown resentencing hearing because he can show the court how great he has been doing in prison to get his sentence reduced beyond just the prison priors being stricken.

But if that’s the law then it’s super bootsie for your client who got the low term, potentially because the judge felt the 1 year priors would get the judge to the sentence (s)he thought was appropriate. This is not necessarily going to happen but it’s possible he goes back down and gets the same sentence. Can he get a worse sentence? Can someone chime in on that? I haven’t researched it seems like it’s falls outside the bar on that?

Different division in the Fourth reached this decision today in People v. Jones E072961 on SB1437, so now we have a further split on this issue, and this is so fucked up I don’t even know where to start:

“On appeal, Jones argues the trial court erred by denying his petition without the benefit of briefing from his counsel. He argues he can demonstrate a prima facie case for relief because his special circumstance finding no longer supports a felony-murder conviction after our Supreme Court’s decisions in People v. Banks (2015) 61 Cal.4th 788 (Banks) and People v. Clark (2016) 63 Cal.4th 522 (Clark), which clarified the meaning of “major participant” and “reckless indifference to human life.”

Our appellate courts have recently split over whether such a pre-Banks/Clark special circumstance finding renders a petitioner ineligible for relief under section 1170.95 as a matter of law. (Compare People v. Gomez (2020) 52 Cal.App.5th 1 (Gomez), People v. Galvan (2020) 52 Cal.App.5th 1134 (Galvan), and People v. Allison (Oct. 2, 2020, B300575) _ Cal.App.5th _ 2020 Cal.App. Lexis 925 [concluding the special circumstance finding renders a petitioner ineligible for relief as a matter of law], with People v. Torres (2020) 46 Cal.App.5th 1168, review granted June 24, 2020, S262011 (Torres), People v. Smith (2020) 49 Cal.App.5th 85, review granted July 22, 2020, S262835 (Smith), and People v. York (2020) 54 Cal.App.5th 250 (York)
[reaching the opposite conclusion].) As we will explain, we agree with the Gomez/Galvan line of decisions and hold that a petitioner with a pre-Banks/Clark finding is ineligible for relief under section 1170.95 as a matter of law. We therefore affirm.”

Please do not “in this county me”

copyright me

This just in. There is no principle of law that says the state or federal constitution, or the penal or evidence code, do not apply because “in this county” we don’t follow that law. I’ve heard this re timely discovery, I’ve heard this re diversion, I’ve heard this re discretion. Sorry, that’s not a thing. I get it that it’s not wise to be a dick to a judge for doing whatever he or she and attorneys have informally agreed to do. Fine. Accept that on things like who calls what case when or whether you defer to the deputy on letting your client smile at his family. But no. Do not defer to that on any exercise of discretion.

To be clear, a trial court cannot deny a motion or impose some kind of probation condition or sentence (generally) merely because it is “standard practice.”(People v. Hernandez (2011) 51 Cal.4th 733, 744 [re heightened security measures during trial: “The court’s reliance on this standard practice, instead of on individualized facts showing that defendant posed a safety risk or flight risk, or a risk of otherwise disrupting the proceedings, was an abuse of discretion.”]; People v. Penoli (1996) 46 Cal.App.4th 298, 303 [“The court’s “standard practice” represents not a case-specific application of sentencing discretion, but a preconceived determination applicable to all cases in which the question might arise. Adherence to this practice constituted an erroneous failure to exercise the discretion vested in the court by law. (See People v. Jasper, supra, 33 Cal.3d at p. 935, 191 Cal.Rptr. 648, 663 P.2d 206 [if trial court had “routine practice” as to discretionary scheduling matter, it was improper]; Mark F. v. Superior Court (1987) 189 Cal.App.3d 206, 210–212, 234 Cal.Rptr. 388, review den. [probation department abused discretion by applying inflexible policy of denying probation to juveniles charged with drunk driving]; cf. People v. Preyer (1985) 164 Cal.App.3d 568, 574, 210 Cal.Rptr. 807 [discretionary ruling must be assessed on particular facts of case, not statistics]”.)

I assume if you object to that “standard practice” justification it’s an easy fix for the judge. But please do object.

Of course, no problem with us “standard practicing” shit. Have I mentioned we should “standard practice” object to search and seizure clauses in felony cases? S&S probation terms have to be related to the crime people. A 422 has nothing to do with concealing evidence or fleeing police; how does that justify a search condition for probation? General deterrence or monitoring someone for compliance with probation is not narrowly tailored to the defendant. Again, that’s a standard practice one size fits all exercise of discretion. And that’s not a thing. (People v. Keller (1978) 76 Cal.App.3d 827, 838-839 [search condition where conviction was petty theft unconstitutional][disapproved of on other grounds by People v. Welch (1993) 5 Cal.4th 228, 237].) Note, there are really bad cases too, but i’m not here to distinguish i’m here to encourage.

There’s a great case that even says you can’t authorize a phone search just to monitor if someone is complying with a stay away order. (People v. Valdivia (2017) 16 Cal.App.5th 1130, 1147 [“[w]e cannot say that it is reasonable to allow law enforcement officials to cull through all such information on defendant’s devices, without limitation, because of the remote possibility that somewhere in that information evidence of” a violation of the protective order].)

Please do not “in this county” the 4th amendment thank you.

Also PSA to DAs, I do not care about how long you’ve been a DA. Just because you’ve been violating the law for that long or were totally ignorant about a law for that long does not mean you’re right. That isn’t an actual legal argument.

2nd PSA check me out on TikTok jennybrandtlaw and let me know if there are issues you want me to address. Just. Like. This.