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.”

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