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San Francisco Criminal Lawyer Blog

April 5, 2026

Penal Code section 32310 distinguishes between “receiving” and “possessing” a large-capacity magazine

by Uthman Law Office

People v. Newt (Cal. Ct. App., Mar. 30, 2026, No. A169899) 2026 WL 861690, at *1–6

Summary : Newt appealed his felony conviction of receiving a large-capacity magazine (Pen. Code, § 32310, subd. (a)). He claimed that no substantial evidence supports the conviction; the jury was erroneously instructed on the crime; and the statute is unconstitutional.

The statute’s use of the terms “receives” and “possesses” are at issue here. Subdivision (a) of section 32310 provides that any person who “receives” a large-capacity magazine commits a crime punishable as a felony or misdemeanor. Subdivision (c) provides that any person who “possesses” a large-capacity magazine also commits a crime, but that crime is punishable only as a misdemeanor or infraction. (§ 32310, subd. (c).) Newt acknowledges the prosecution presented evidence that he “possessed” a large-capacity magazine—that an assault rifle with a large-capacity magazine was found on the front seat of the car he was driving while he attempted to avoid a traffic stop and from which he subsequently fled. But he asserts the prosecution presented no evidence beyond mere “possession” and therefore his conviction for felony “receiving” the large-capacity magazine cannot stand. He argues the jury was not properly instructed on the distinction between “receiving” and “possessing” such a magazine.

March 29, 2026

An appearance of bias by a DMV Hearing Office is insufficient to show a Due Process violation

by Uthman Law Office

Chi v. Department of Motor Vehicles (Cal. Ct. App., Mar. 24, 2026, No. A172237) 2026 WL 809967, at *1–7

Summary: Chi appealed the trial court’s denial of his petition for a writ of mandate challenging the suspension of his driving privileges by the Department of Motor Vehicles. Chi asserted that the department’s administrative hearing officer violated his due process rights by acting as a prosecutor rather than a neutral adjudicator. The Court of Appeal disagreed and affirmed.

The California Supreme Court granted review in a similar case, Romane v. Department of Motor Vehicles (2025) 110 Cal.App.5th 1002, 1019, 1021, 332 Cal.Rptr.3d 104, review granted August 13, 2025, S291093 (Romane). Romane is part of a line of recent involving the DMV—that examine this same due process issue. Some of these cases conflict with the Supreme Court’s precedent by employing an appearance of bias standard for assessing an adjudicator’s impartiality and by overlooking the presumption of impartiality that courts afford to adjudicators.

March 22, 2026

Impounding a driver’s vehicle pursuant to the Vehicle Code to prevent further illegal driving does not satisfy the community caretaking function and allow a search

by Uthman Law Office

People v. Perez (Cal. Ct. App., Mar. 19, 2026, No. H053314) 2026 WL 777180, at *1

Summary: A police officer’s decision to impound a driver’s vehicle pursuant to the Vehicle Code solely to prevent further illegal driving does not satisfy the community caretaking function.

Perez pleaded no contest to possession of a firearm by a felon (Pen. Code, § 29800, subd. (a)(1)) and possession of a controlled substance for sale (Health & Saf. Code, § 11378). The police found drugs in Perez’s vehicle during an impoundment and inventory search following a traffic stop. The police also found a firearm and more drugs when later executing a search warrant on a hotel room linked to Perez.

March 15, 2026

Exigent circumstances justified pursuit and entry into a fleeing felon’s home without a warrant

by Uthman Law Office

People v. Valencia (Cal. Ct. App., Mar. 10, 2026, No. B338672) 2026 WL 672932, at *1

Summary: Valencia, under the influence of methamphetamine and cocaine, drove his pickup truck and would not comply with police orders to pull over. Police chased Valencia until he crashed into a parked car. Valencia jumped out, ran to his nearby apartment, and barricaded himself in his bedroom. During an overnight standoff, Valencia shot one officer to death and seriously wound another. A SWAT team eventually blew through his bedroom wall and blasted down his bedroom door. The jury convicted Valencia of murder and other felonies.

Valencia appealed challenging the warrantless entry of police into his apartment. The Court of Appeal held that jurors could find exigent circumstances justified the initial warrantless entry and that police did not need to seek a warrant once they were in the apartment.

March 8, 2026

Court must find that a defendant would not pose an unreasonable risk of danger to public safety to be granted mental healthdiversion

by Uthman Law Office

THE PEOPLE, Petitioner, v. THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; JOB URIAH TAYLOR, Real Party in Interest. (Cal. Ct. App., Mar. 5, 2026, No. B346062) 2026 WL 622265

Summary: Penal Code section 1001.36 authorizes a court to grant pretrial diversion to a defendant with a qualifying mental disorder who agrees to comply with mental health treatment (§ 1001.36, subd. (c)(3)) and will not pose an unreasonable risk of danger to public safety “if treated in the community.” (§ 1001.36, subd. (c)(4).)

The Los Angeles County District Attorney charged Taylor with several counts of attempted murder and assault with a deadly weapon, alleging Taylor viciously attacked four individuals with a metal pipe. The defense moved for mental health diversion to a community facility, supported by a psychological evaluation that Taylor suffered a treatable schizoaffective disorder but would not pose an unreasonable risk of danger to public safety “if his psychiatric symptoms were controlled with treatment.”

March 1, 2026

Assault is not a lesser included offense of knowingly resisting an officer by the use of force or violence

by Uthman Law Office

People v. Morgan (Cal., Feb. 26, 2026, No. S286493) 2026 WL 533311, at *1–2

Summary: During a confrontation with law enforcement, Morgan aimed a firearm at police officers, “racked” its slide, and pulled the trigger. The weapon did not discharge and when officers eventually recovered it, it was unloaded. Defendant was convicted of resisting an officer by “the use of force or violence” under Penal Code section 69, subdivision (a). On appeal of his conviction, he argues that assault (§ 240) is a lesser included offense of resisting an officer by force or violence. Because there was no evidence the weapon was loaded, he could not be convicted of assault and therefore could not be convicted of resisting an officer under section 69, subdivision (a) (section 69(a)).

The California Supremd Court concluded that assault is not a lesser included offense of resisting an officer by force or violence. Resisting by force or violence does not require the “present ability” (§ 240) to commit a violent injury, an essential element of assault. s this interpretation.

February 22, 2026

Electronic search clause is reasonable when devices were used for drug sales

by Uthman Law Office

People v. Flores (Cal. Ct. App., Feb. 11, 2026, No. A171602) 2026 WL 378414, at *1

Summary: Flores pleaded no contest to felony possession of fentanyl for sale and was sentenced to two years of formal probation with a condition permitting warrantless searches of Flores’s electronic devices. On appeal, Flores asked the court to strike or modify the electronics search clause as unconstitutionally overbroad and unreasonable. Because Flores used electronic devices to coordinate the sale and to obscure his identity during negotiations, the court affirmed the electronics search clause in its entirety.

In its presentencing report, the probation department recommended “a five-way search clause to include all electronic devices, and supply passwords upon request due to [Flores] using his cell phone to negotiate the sale of illicit controlled substances.” The report stated that at the time of the offense, Flores had been on formal probation in Merced for possession of a controlled substance for sale (Health & Saf. Code, § 11351), and that Flores admitted to using fentanyl and a prior gang affiliation.

February 15, 2026

Use of undercover informants in jail cell amounted to a custodial interrogation and violated Miranda

by Uthman Law Office

People v. Zapata (Cal. Ct. App., Feb. 10, 2026, No. D084024) 2026 WL 366837, at *1

Summary: A “Perkins operation” is when an undercover operative is placed in a cell with the suspect to obtain information from the suspect. The term derives its name from Illinois v. Perkins (1990) 496 U.S. 292, 110 S.Ct. 2394, 110 L.Ed.2d 243 (Perkins).

During a Perkins operation, Zapata admitted to two undercover officers that he murdered Justin Triplett. A jury who heard a recording of Zapata’s confession convicted Zapata of second degree murder. On appeal, Zapata argues the trial court’s admission of his statements violated Miranda because he had invoked his right to an attorney, he did not waive that right when he spoke with the undercover agents, and the involvement of a known law enforcement officer transformed the operation into a custodial interrogation. The Court of Appeal agreed.

February 8, 2026

Right to counsel is violated when judge communicates with jury with lawyer not present.

by Uthman Law Office

People v. Heaps (Cal. Ct. App., Feb. 2, 2026, No. B329296) 2026 WL 266465, at *1–4

Summary: The Sixth Amendment’s right to counsel applies in state criminal trials. (Gideon v. Wainwright (1963) 372 U.S.) That right is violated when a judge communicates with a jury during deliberations “without affording defendant and counsel an opportunity to be present. (People v. Hawthorne (1992) 4 Cal.4th 43, 69. (Hawthorne).)

Here, the trial court judge sent the judicial assistant, (the JA), into the jury room to speak to the jury about the foreperson’s (Juror No. 4’s) note describing the jurors’ collective concern that a juror (Juror No. 15) did not speak English sufficiently to deliberate and had already made up his mind (the Note). The trial judge did not inquire of the jury or inform trial counsel of the Note’s existence. The JA’s conversations about the Note with the jury were not transcribed.

February 1, 2026

DMV must disclose name of person submitting request for driver reexamination form “DS 699”

by Uthman Law Office

RICHARD LOUIS BROWN, Plaintiff and Appellant, v. DEPARTMENT OF MOTOR VEHICLES, Defendant and Respondent. (Cal. Ct. App., Jan. 30, 2026, No. C102554) 2026 WL 251816, at *1–2

Facts: Department of Motor Vehicles (Department) temporarily suspended Brown’s driver’s license after conducting a driver reexamination initiated by an undisclosed third-party reporter. Brown filed a petition for writ of mandate with the trial court demanding the Department provide the name of the reporter; the trial court denied the petition. On appeal, appellant contends the nondisclosure of the reporter’s identity violates due process. The Court of Appeal affirmed.

Procedural Background