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San Francisco Criminal Lawyer Blog

November 22, 2020

Youthful Offenders Sentenced to LWOP Not Entitled to a Youth Offender Parole Hearing

by Uthman Law Office

In re Williams (Cal. Ct. App., Nov. 16, 2020, No. B303744) 2020 WL 6707335, at *1

Michael Williams was convicted by a jury of of two counts of first degree murder (Pen. Code, § 187, subd. (a))1 that he committed during a robbery when he was 21 years old. The jury found true the allegation that he personally used a firearm in the commission of the robbery (§ 12022.5, subd. (a)). It also found true the special circumstance allegations that he committed multiple murders (§ 190.2, subd. (a)(3)) and murder during the commission of robbery (§ 190.2, subd. (a)(17)). A court sentenced him to two consecutive terms of life without the possibility of parole (LWOP).

Summary: Williams, self-represented at the time, filed a petition for writ of habeas corpus on January 21, 2020. Williams asserted that the denial of a youth offender parole hearing under section 3051 violates his right to equal protection of the laws and constitutes cruel and unusual punishment. Under section 3051, subdivision (b), most inmates under age 26 at the time of their “controlling offense” become eligible for a youth offender parole hearing in their 15th, 20th, or 25th year of incarceration. The different statutory parole hearing dates depend on the offense. (§ 3051, subd. (b).) Section 3051, subdivision (h) is the exception to the rule. It excludes from youth offender parole hearings offenders, like petitioner, who are serving LWOP sentences for offenses committed “after the person had attained 18 years of age.”

November 15, 2020

Grand theft conviction reduced to petty theft based on fair market value of merchandise

by Uthman Law Office

People v. Grant (Cal. Ct. App., Nov. 12, 2020, No. D076576) 2020 WL 6608321, at *1

Summary: Kenneth Grant stole merchandise from a Wilsons Leather outlet store where everything is sold at a discount, determined by applying varying discount percentages to a “comparable value” the store displays on tags attached to each product. At trial, the prosecution introduced evidence showing that the cumulative comparable values of the stolen merchandise exceeded the $950 felony theft threshold. There was no evidence establishing that the comparable values represented the merchandise’s actual fair market values, and the only evidence of actual sales price was for a few of the stolen products (totaling about $265). The jury found the value of the stolen merchandise exceeded $950, and convicted Grant of grand theft (Pen. Code, § 487, subd. (a))1 and burglary (§ 459). The trial court sentenced Grant to three years in local custody.

On appeal, Grant contends his grand theft conviction must be reduced to petty theft, and his burglary conviction must be reversed, because (1) the trial court erroneously instructed the jury regarding the definition of fair market value; (2) the trial court failed to instruct the jury regarding the distinction between burglary and misdemeanor shoplifting; and (3) substantial evidence does not support the finding that the value of the stolen merchandise exceeded $950.

November 11, 2020

Court Of Appeal Finds Mentally Ill Defendant Received Ineffective Assistance of Counsel Comments on over-incarceration of mentally ilL

by Uthman Law Office

People V. O’Hearn (Cal. Ct. App., Nov. 9, 2020, No. A158676) 2020 WL 6556592, at *1–2

Patrick Sean O’Hearn appealed from the denial of his motion to vacate a guilty plea to charges of making a criminal threat. The Court of Appeal held that O’Hearn received ineffective assistance of counsel in the in his plea bargain and reversed and and remanded with directions for the superior court to conduct a trial on the charges.

The Underlying Offense

November 8, 2020

Penal Code 1170.94 did not abolish implied malice for a DUI Murder

by Uthman Law Office

People v. Roldan (Cal. Ct. App., Oct. 30, 2020, No. B298570) 2020 WL 6375578, at *1

Summary: Marlon Roldan was convicted of second degree murder under an implied malice theory for killing a person while driving under the influence of alcohol (DUI). He filed a petition in the superior court for resentencing under Penal Code section 1170.95. He also requested appointment of counsel. The court found he was ineligible for relief as a matter of law because he was convicted under a theory of direct rather than vicarious liability. The court denied the petition without appointing counsel or holding an evidentiary hearing.

Roldan appealed claiming that Penal Code section 1170.95 should apply to his conviction for DUI murder, and he should have been appointed counsel to assist with his petition. The Court of appeal disagreed and affirmed the tail court’s ruling.

October 25, 2020

San Quentin Prison acted with deliberate indifference, failing to protect inmates from COVID-19

by Uthman Law Office

In re Von Staich (Cal. Ct. App., Oct. 20, 2020, No. A160122) 2020 WL 6144780, at *1–2

Petition claiming San Quentin does not adequately protect against COVID-19 infection

Ivan Von Staich, incarcerated at San Quentin State Prison,serving a sentence of 17 years to life for a second degree murder consecutive to a 13-year sentence for the attempted murder.

October 18, 2020

Veterans with military related trauma eligible for resentencing if sentenced before January 1,2015

by Uthman Law Office

People v. Valliant (Cal. Ct. App., Oct. 14, 2020, No. G058568) 2020 WL 6054332, at *1–6

Summary: Valliant petitioned pursuant to Penal Code section 1170.91, subdivision (b),1 which authorizes recall of sentencing for military veterans who suffer from military-related trauma and substance abuse, who did not have those factors considered as mitigating factors when they were originally sentenced. The court denied his petition on the basis that section 1170.91, subdivision (b)(1)(B) (subdivision (b)(1)(B)) authorizes resentencing relief only for persons who were sentenced before January 1, 2015. Valliant who was sentenced in March of 2015.

Valliant argued that resentencing relief is available to all veterans whose military-related trauma was not considered at their initial sentencing, without regard to when that sentencing took place. The Court of Appel affirmed the order. Subdivision (b)(1)(B) clearly specifies that its resentencing relief is limited to cases in which “[t]he person was sentenced prior to January 1, 2015.” It further specifies that “[t]his subdivision shall apply retroactively, whether or not the case was final as of January 1, 2015” (italics added). The statutory limitation is unequivocal.

October 12, 2020

Pre-sentence Conduct Credits Earned in County Jail

by Uthman Law Office

People v. Brown (2020) 52 Cal.App.5th 899, 904–910 [267 Cal.Rptr.3d 79, 84–89, 52 Cal.App.5th 899, 904–910], review filed (Sept. 8, 2020)

Brown was convicted by jury of murder and at his sentencing, the trial court resentenced him for a cocaine possession case. He was sentenced to consecutive terms and the court and applied Penal Code section 2933.21 (which prohibits defendants convicted of murder from earning presentence conduct credits) and Brown received no presentence conduct credits. It then awarded 923 days of actual custody credits.

Brown challenges the application of section 2933.2 to the period of custody following his cocaine possession charge and preceding his murder charge. He also challenges the award of actual custody credits. The Court of Appeal addressed these issues.

October 7, 2020

Re-sentencing under 1170(d)-limits to court’s authority

by Uthman Law Office

Court discretion under 1170(d)

Penal Code section 1170(d)(1) states: “The court resentencing under this paragraph may reduce a defendant’s term of imprisonment and modify the judgment, including a judgment entered after a plea agreement, if it is in the interest of justice.” (Pen. Code, § 1170(d)(1))

Does the court’s authority to “modify the judgment” include reducing or dismissing charges?

October 4, 2020

Liberty interest in recommendation for re-sentencing under PC 1170(d) gives right to present information to court

by Uthman Law Office

People v. McCallum (Cal. Ct. App., Sept. 30, 2020, No. B301267) 2020 WL 5810212, at *1

Resentencing under Penal Code 1170(d)(1)

Penal Code section 1170, subdivision (d)(1) authorizes the trial court to modify a defendant’s sentence upon a recommendation from the Secretary of the Department of Corrections and Rehabilitation (Department), the Board of Parole Hearings, or the district attorney to “recall the sentence and commitment previously ordered and resentence the defendant in the same manner as if they had not previously been sentenced ….”

September 24, 2020

A conviction set aside pursuant to section 1210.1, subdivision (e)(1), still exists for some purposes and the arrest cannot be sealed

by Uthman Law Office

People v. D.C. (Cal. Ct. App., Sept. 16, 2020, No. F078629) 2020 WL 5542090, at *1–5

Summary:

D.C. petitioned to seal his arrest record under Penal Code section 851.91 after pleading no contest to possession of a controlled substance and successfully completing treatment and probation pursuant to section 1210.1.the trial court ruled that he was ineligible for relief under section 851.91. D.C. appealed claiming he qualifies for relief under section 851.91 as a person whose arrest did not result in a conviction because his arrest and conviction are deemed never to have occurred pursuant to section 1210.1, subdivision (e)(1).