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People v. Brewer (Cal. Ct. App., June 7, 2021, No. C089676) 2021 WL 2309551

 Summary:  Brewer  was convicted of second degree robbery, attempted second degree robbery, and felon in possession of a firearm, and sentenced to a determinate term of 63 years. Brewer appealed and contended that  his sentence, which he characterized as the functional equivalent of a life sentence without parole imposed on a developmentally disabled person, constitutes cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution and article I, section 17, of the California Constitution.

The Court of Appeal held that:

People v. Esquivel (Cal., June 17, 2021, No. S262551) 2021 WL 2461206, at *1–2

Summary: The California Supreme Court held that the judgment is not final in a  case where defendant is placed on probation with imposition of sentence suspended if the defendant may still timely obtain direct review of an order revoking probation and imposing sentence. (People v. McKenzie (2020) 9 Cal.5th 40, 259 Cal.Rptr.3d 224, 459 P.3d 25 (McKenzie).)

Therefore, the  Estrada Presumption, that new legislation reducing the punishment for an offense, is  presumed to apply to all cases not yet final as of the legislation’s effective date. (In re Estrada (1965) 63 Cal.2d 740, 48 Cal.Rptr. 172, 408 P.2d 948 (Estrada) applies to cases when a defendant is placed on probation with a suspended sentence that may be appealed if probation is revoked.

In re Palmer (2021) 10 Cal.5th 959

Summary: The California Supreme Court  held that prisoners may challenge their continued incarceration as constitutionally excessive when the Board repeatedly denies parole. The Court had granted review in the case of Palmer who in 1988, was 17 years old when he pleaded guilty to kidnapping for robbery and sentenced to life imprisonment with the possibility of parole, consecutive to a two-year term for use of a firearm.

Palmer was eligible for parole in 1995 but was repeatedly denied parole by the Board. Following his 10th denial, Palmer filed a petition for writ of habeas corpus. Palmer alleged that the 30 years he had already served on a life sentence for an aggravated kidnapping committed when he was a juvenile was constitutionally excessive. Before the Court of Appeal could adjudicate the habeas petition, the Board found him suitable for parole and ordered him released. The California Supreme Court agree with 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.

 People v. Tousant (Cal. Ct. App., May 26, 2021, No. A156044) 2021 WL 2134389

 Summary: Tousant challenged the denial of his motion to suppress evidence downloaded from his cellphone, seized after an allegedly illegal search of his car left at the scene of an Oakland shooting. Tousant claimed the trial court erroneously denied his motion to suppress evidence obtained after the Oakland shooting and in violation of his Fourth Amendment right to be free from unreasonable searches and seizures. (U.S. Const., 4th Amend.) The Court of Appeal held that the trial court properly denied the motion to suppress.

Warrantless search is presumptively unreasonable

People v. Escareno (Cal. Ct. App., May 24, 2021, No. A160209) 2021 WL 2069434, at *1–4

Summary: Escareno pleaded no contest to two felonies, four misdemeanors and an infraction arising from a single incident of driving under the influence of alcohol and without a valid license. The  trial court refused  to dismiss the misdemeanor and infraction counts pursuant to Vehicle Code section 41500 after sentencing him to prison on the felony counts. Escareno appealed and the Court affirmed.

Escareno was charged with felony driving under the influence of alcohol after two prior felony convictions for the same (Veh. Code,1 §§ 23152, subd. (a), 23550.5) (count 1); felony driving with .08 percent or higher blood alcohol after two prior felony convictions for the same (§§ 23152, subd. (b), 23550.5) (count 2); misdemeanor unlawful operation of a vehicle not equipped with a functioning ignition interlock device (§ 23247, subd. (e)) (count 3); misdemeanor driving when privilege suspended for driving under the influence, with priors (§ 14601.2, subd. (a)) (count 4); misdemeanor driving while license suspended or revoked, with priors (§ 14601.5, subd. (a)) (count 5); misdemeanor driving without a valid license (§ 12500, subd. (a)) (count 6); and possession of an open container of alcoholic beverage while driving, an infraction (§ 23222, subd. (a)) (count 7).

People v. Houle (Cal. Ct. App., May 18, 2021, No. A159055) 2021 WL 1975277, at *1–5

Summary: Defendant was sentenced to a stipulated six-year prison term after a plea bargain where he pleaded no contest to one count of unlawfully possessing a concealed dirk or dagger pursuant to Penal Code section 21310;1 admitted having a prior strike within the meaning of section 667, subdivisions (d) and (e) and section 1170.12, subdivisions (b) and (c); and serving two prior prison terms within the meaning of section 667.5, subdivision (b).

At the time he was sentenced, section 667.5, subdivision (b) required a one-year enhancement for each prior prison term served for “any felony.”

People v. Fortman (Cal. Ct. App., May 13, 2021, No. B304567) 2021 WL 1920356, at *1

Summary: A murder conviction that may rest on a theory of vicarious liability later invalidated by Senate Bill No. 1437  must stand if the prosecution proves, beyond a reasonable doubt, that the conviction is valid under a still-viable theory of liability. (Pen. Code, § 1170.95, subds. (d)(3) & (a).)

Issue: Does this require the prosecution to convince the trial court hearing the petition to conclude that it would convict defendant on a still-viable theory, or merely to convince that court that a reasonable jury could convict defendant on a still-viable theory?

People v. Walker (Cal. Ct. App., May 6, 2021, No. A158423) 2021 WL 1811648, at *1–4

Summary: Walker appealed following his convictions for felony evasion of a peace officer (Veh. Code, § 2800.2)1 and other crimes. In the published portion of the opinion, the Court of Appeal rejected Walker’s contention that reckless driving (§ 23103) is a lesser included offense of felony evasion.

Facts: In June 2019, Walker was charged with felony evasion of a peace officer (§ 2800.2); misdemeanor driving under the influence (§ 23152, subd. (f)); and misdemeanor possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)).

The People, Plaintiff and  Respondent, V. Christopher Eric Williams, Defendant And Appellant. (Cal. Ct. App., Apr. 30, 2021, No. A160530) 2021 WL 1712162, At *1–4

 Summary: Christopher Williams pled no contest to one count of felony stalking (Pen. Code, § 646.9, subd. (a)1). Shortly after Williams’s plea, the Legislature passed an omnibus budget bill that took immediate effect (Assem. Bill No. 1810). The bill enacted Penal Code section 1001.36, which authorizes trial courts to grant pretrial diversion for certain defendants suffering from mental health disorders. The court denied mental health diversion and Williams was placed on probation for three years. Williams appealed arguing that the court abused its discretion in finding him unsuitable for mental health diversion because he does not pose an unreasonable risk to public safety. The Court of Appeal ruled that  the trial court abused its discretion in denying his request for mental health diversion and reversed the order.

Mental Health Diversion

In re Murray (Cal. Ct. App., Apr. 19, 2021, No. A161687) 2021 WL 1526490, at *1–5

 Summary Paul Murray was sentenced to life in prison without possibility of parole for a first degree special circumstance murder he committed when he was 22 years old. Murray sought a hearing pursuant to People v. Franklin (2016) 63 Cal.4th 261, because he stated was eligible for a Penal Code section 3051 youth offender parole hearing. The trial court denied his request because section 3051 expressly exclude LWOP offenders who were 18 years old or older at the time of their offense. Murray filed a habeas petition and argued that  section 3051 violates his constitutional right to equal protection by affording juvenile LWOP offenders a youth offender parole hearing but denying such a hearing to youthful LWOP offenders. The Court of Appeal concluded that there is a rational basis for distinguishing between juvenile and youthful LWOP offenders in this context, and thus deny his petition.

Murray’s equal protection claim

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