Prejudicial error from defendant’s absence at sentencing.

It is not controversial that a defendant has a federal constitutional right to be present at a sentencing hearing.

The Second District just held in People v Cutting 2019 WL 6163797, though, the the more stringent Chapman standard of prejudice applies when a defendant is unjustifiably absent from sentencing. They went on to hold that the error was prejudicial because the defendant could have presented mitigating facts or expressed remorse. This is one of those situations where it seems impossible to show prejudice. Who knows what he would have said and how it could have changed the outcome? This case will be super helpful for any cases where judges rule on SB 1393 / SB 620 issues on demand without holding a hearing.

First SB 136 case–TLDR: it applies retroactively

SB 136 abolished the one-year prison prior enhancement codified at Penal Code section 667.5.

The Fifth District Court of Appeal held yesterday, in People v. Lopez (WL cite not yet available), that SB 136 applies retroactively to any case not yet final on appeal. A case is final 90 days after the California Supreme Court denies review. Supplemental brief the shit out of this!

I have several pending appeals where the AG has conceded the issue. Although I hesitate to say this about anything in the criminal justice system, it is a slam dunk assuming your client’s case is not yet final.

If his or her case is final, you can always argue that it violates the Equal Protection Clause to deny him/her relief. This argument is kind of a loser. Here is some sample language you can use which I drafted for a similar bill, SB 1393:

Appellant is entitled to relief because otherwise his right to equal protection under the 14th amendment to the United States constitution and Article I, section 7 of the California constitution would be violated, as appellant argued in his motion. This is because, appellant is similarly situated to persons whose cases are not yet final on appeal, and there is no compelling state interest, or rational basis, to treat appellant differently from those individuals.


The equal protection clauses of the Fourteenth Amendment to the United States constitution and Article I, section 7 of the California constitution require that similarly situated defendants be treated alike.  “[N]o State shall . . . deprive any person of . . . liberty . . . without due process of law nor shall any person be denied equal protection of the laws.”  (U.S. Const., Amend XIV; see also Cal. Const., art. I, § 7 [“A person may not be . . . denied equal protection of the laws.”].)  Laws must “affect alike all persons similarly situated”, and any classifications imposing different treatment on selected groups of persons must serve legitimate legislative objectives.  (Truax v. Corriginan (1921) 257 U.S. 312, 332-333.)

Where a law affects a fundamental interest or right, a reviewing court evaluates whether the law violates the equal protection clause under the strict scrutiny test.  (People v. Olivas, supra, 17 Cal.3d at p. 251.)  Under the strict scrutiny test, “the state must first establish that it has a compelling interest which justifies the law and then demonstrate that the distinctions drawn by the law are necessary to further that purpose.”  (Ibid. [emphasis in original].)   

If the law at issue does not implicate a fundamental right, then it is subject to the rational review test.  (Johnson v. Department of Justice (2015) 60 Cal.4th 871, 881.)  Under that test, the law violates the equal protection clause if there is no “rational relationship between the disparity of treatment and some legitimate governmental purpose.”  (Ibid.)

The law at issue here implicates appellant’s fundamental right to liberty because the law governs whether appellant will be deprived of his liberty for an additional five years.  (See People v. Olivas, supra, 17 Cal.3d at p. 251 [applying strict scrutiny to evaluate criminal sentencing issue because liberty is a fundamental right]; see also In re Maurice S. (1979) 90 Cal.App.3d 190, 193 [“Classifications that deal with restraints on liberty are subject to the strict scrutiny test”].)  Even if the rational basis test applies—which provides that a law violates the equal protection clause if it treats similarly situated persons differently without a rational basis—appellant is entitled to relief.


“‘The first prerequisite to a meritorious claim under the equal protection clause is showing that the state has adopted a classification that affects two or more similarly situated groups in an unequal manner.’ [Citations.]” (People v. Hofsheier (2006) 37 Cal.4th 1185, 1199 [emphasis in original] [overruled on other grounds by Johnson v. Department of Justice, supra, 60 Cal.4th at p. 888].) This concept “compels recognition of the proposition that persons similarly situated with respect to the legitimate purpose of the law receive like treatment.” [Citation.]” (In re Eric J. (1979) 25 Cal.3d 522, 531 [internal quotations omitted].) “This initial inquiry is not whether persons are similarly situated for all purposes, but ‘whether they are similarly situated for purposes of the law challenged.’” (Cooley v. Superior Court (2002) 29 Cal.4th 228, 253 [quoting People v. Gibson (1988) 204 Cal.App.3d 1425, 1438].)       

Appellant is similarly situated to persons whose convictions are not yet final and therefore eligible for a resentencing hearing under SB 1393.  Both appellant and these persons are in identical positions—they were deprived of the opportunity to have the trial court strike the five-year enhancements imposed because of the law that existed at the time they were sentenced.

People v. Brown (2012) 54 Cal.4th 314, makes clear that appellant is similarly situated with persons whose convictions are not yet final.  In Brown, the California Supreme Court held that a defendant was not similarly situated with persons whose convictions occurred after the effective date of a statute that gave inmates more credits for good behavior.  (Id. at p. 329.) This fact sufficiently distinguished the defendant from those eligible for credits because “the important corrections purposes of a statute authorizing incentives for good behavior [citation] are not served by rewarding prisoners who served time before the incentives took effect and thus could not have modified their behavior in response.”  (Id. at pp. 328-329.)  Important to the issue here is the Court’s reasoning for distinguishing Brown’s case from In re Kapperman (1974) 11 Cal.3d 542.  In Kapperman, the California Supreme Court held that the equal protection clause required retroactive application of an expressly prospective statute granting credit to felons for time served in local custody before sentencing and commitment to state prison.  (Id. at p. 550.).  The Court in Brown explained that this differed from Brown’s case because credit for time served “is given without regard to behavior, and thus does not entail the paradoxical consequences of applying retroactively a statute intended to create incentives for good behavior.”  (Brown, supra, at p. 330.)

Thus, the critical difference for ascertaining whether a defendant is similarly situated with a group who has received an ameliorative benefit under a new law is whether there would be any incentive for the defendant to adjust his conduct after the enactment of the new law, which would not have existed at the time of the old law.  Here, there is no such incentive for several reasons.  First, under both the old and new versions of Penal Code sections 667 and 1385, a defendant would be subject to a five-year enhancement for suffering a prior serious or violent felony.  This means that the deterrent value at play when the defendant committed the prior offense was identical under the new and old law.  That is because the enhancement would only be triggered in the new case if the offense had already been committed. Thus, the incentive for not committing the prior offense would be identical prior to, and after, the law was enacted.

Second, the new law only affords the defendant the opportunity to have his five-year enhancement stricken.  Thus, the circumstances are unlike the situation where a defendant would automatically have his sentence reduced (as in Brown) if he modified his behavior.  Accordingly, appellant is similarly situated with those persons whose convictions are not yet final.


There is no compelling interest or rational basis to treat appellant differently from persons whose appeals are not yet final and who are therefore entitled to a resentencing hearing under SB 1393.  As stated above, there is no difference between a defendant who suffered a prior conviction triggering the five-year enhancement, but whose case was final, and a defendant who suffered a prior conviction triggering the five-year enhancement, but whose case was not final.  Typically, as stated in Brown, a compelling or rational reason for distinguishing between two groups deprived of their liberty would be if there is some deterrent value in applying the law only to those persons whose crimes were committed after the effective date of the new law.  Here, there would be no deterrent value.  That is because, as stated above, a five-year enhancement is only triggered if the person already committed the offense for the serious or violent felony.  Thus, there could be no deterrent value because the law only applies to people who have not been deterred from committing the prior offense.  Because there is no compelling or rational reason to treat appellant differently from those whose cases are final, appellant’s right to Equal Protection would be violated if he is denied a resentencing hearing.

New primary caregiver diversion law SB 394

Newsom signed SB 394 into law and it is amazing. It allows for diversion for misdemeanors AND/OR non serious/nonviolent felonies if your client is a primary caregiver of a child.

There is a strong argument that this law should apply to people already convicted/who have already pled.

The law is similar, but not identical, to the mental health diversion law (PC 1001.36.) The California Supreme Court (in the lead case Frahs) is currently reviewing whether that law would apply to people who are already convicted of a crime, and a number of appellate courts have held that 1001.36 applies to people who have already pled. (Although there is a split in authority.)

Presumably, if the Supremes hold that people already convicted are eligible for mental health diversion, we have a fair shot at getting people diversion under SB 394 even if they have already pled. (Note, this would not apply to anyone whose cases/appeals are long over.)

There is some ambiguity over when and where this diversion program will begin. The law should be effective Jan 1, 2020.. But the statute says that the court, the DA and the criminal defense bar may create a primary caregiver diversion program. (PC 1001.83(a.)) So does that mean that a county can just say “we don’t do that here?” (True story: a court who shall remain nameless told me that their branch “did not do” PC 1000, even though all other courts in the county did it. 🤔). Remains to be seen.

See SB 394.

cartel crew

Apparently there has been a reality show on VH1 called “cartel crew“,  which is news to me. It’s about family members of people in the cartel.  I found out about it after I saw an LA Times opinion re El Chapo’s wife’s appearance on the show. Here’s a clip which makes it look interesting, but then I saw another preview on and it looks like kind of a snoozefest, which is shocking because historically vh1 has quality reality tv content, including such favorites as rock of love and i love new york 2. And who could forget “Megan wants a millionaire” which had to go off air mid-season because one of the contestants murdered his ex while the show was airing. 


Most scathing opinion ever?!

A little late blogging this…the COA issued a scathing opinion in the OC snitch scandal case. The AG argued the trial court erred in disqualifying the entire DA’s office from prosecuting the case. Here’s what the COA had to say about that: “On the last page of the Attorney General‟s reply brief it states, ‘The trial court’s order recusing the OCDA from prosecuting Dekraai’s penalty phase trial was a remedy in search of a conflict.’ Nonsense. The court recused the OCDA only after lengthy evidentiary hearings where it heard a steady stream of evidence regarding improper conduct by the prosecution team. To suggest the trial judge prejudged the case is reckless and grossly unfair. These proceedings were a search for the truth. The order is affirmed.”   (Italics in original.) published opinion calling your argument nonesense. In italics. AWKWARD.

Long opinion, but a good read to understand the extent of the outrageous misconduct. It seems the DAs were so deep in it they started relying on idiocy as a defense before the trial court “I’m just not that familiar with Massiah.” Glad the trial court and COA shut it down and the level of outrage I have for Kamala Harris in appealing the order as well as staying hands off has reached new heights. She should be investigating the DAs and Sherrif’s office not defending them with arguments that have now been deemed nonsensical as a matter of law.

I’m also mad at her because  she just announced her office will step in to defend the cash bail system–something the SF city attorney won’t do. 

Here’s hoping the next AG isn’t worse. Although yes I acknowledge she has some progressive criminal justice policies. 

Interesting competency procedural issue case today

Court of Appeal reversed a conviction today on an issue the defendant did not initially raise on appeal. D claimed there was not sufficient evidence he was competent after the trial court ruled otherwise.  The Court of Appeal held that the real issue was whether the trial court erred in ruling on the ultimate issue of competency without first ruling on whether there was evidence of a doubt of competency. If there was, then the court was to proceed to a full blown trial on competency. 

I don’t want to make light of someone’s mental illness but I will note that the defendant’s delusion seems pretty pretty pretty understandable and I can’t say he’s alone in having it:

“Defendant explained to Dr. Leeb that when he looked at the prosecutor, he saw “this evil darkness, like an attacking vampire. I get so scared I can‟t sit at the table. I‟m jerking all around. I wanted to dive under the table. I won‟t go into the courtroom.”
Dr. Leeb continued, “When [defendant] stated, I see this evil darkness,‟ he shrank down into his chair, his eyes went wide, and you can [sic] see the fear response on his face, and his voice got high and he says [sic]…I‟m not going to go in there,‟ and he went like this with his arms (indicating), in what appeared to be a protective gesture.” Dr. Leeb then demonstrated the “attacking vampire,” as defendant had described how he saw the prosecutor.”

great pending legislation 

passed the assembly floor sponsored by CACJ:

SB 1052, authored by Senator Ricardo Lara, passed the Assembly floor today. SB 1052 adds section 625.6 to the Welfare and Institutions Code to require that juveniles have access to legal counsel before waiving their Miranda rights during a custodial interrogation.

SB 1389, which requires the electronic recording of custodial interrogations for persons suspected of homicide, passed the Assembly floor today. 

Yesterday CACJ’s sponsored AB 1909 passed the Senate floor.

AB 1909, authored by Assemblywoman Patty Lopez, passed the Senate floor yesterday. AB 1909 would amend Penal Code 141, creating a felony for prosecuting attorneys who knowingly and intentionally withhold exculpatory evidence. 

Brown is to veto or sign into law by September.