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San Francisco Criminal Lawyer Blog

April 11, 2021

Recording a phone call without the other party’s consent is a crime (Penal Code section 632.7(a)

by Uthman Law Office

Smith v. LoanMe, Inc. (Cal., Apr. 1, 2021, No. S260391) 2021 WL 1217873, at *1

Summary: Under Penal Code section 632.7(a), it is a crime when a person “without the consent of all parties to a communication, intercepts or receives and intentionally records, or assists in the interception or reception and intentional recordation of, a communication transmitted between” a cellular or cordless telephone and another telephone.

A violation of section 632.7 also can be pursued in a civil lawsuit.

April 4, 2021

A Car Accident Can Result in a Conviction for Assault with a Deadly Weapon

by Uthman Law Office

People v. Brugman (Cal. Ct. App., Mar. 30, 2021, No. D076658) 2021 WL 1186143

Summary: Brugman was convicted of assault with a deadly weapon was based on his act crashing his vehicle into the car being driven by His former girlfriend as she tried to enter the driveway to her mother’s apartment complex. The jury was required to find that Brugman was “aware of the facts that would lead a reasonable person to realize that a battery would directly, naturally and probably result from his conduct.” (Williams, supra, 26 Cal.4th at p. 788, 111 Cal.Rptr.2d 114, 29 P.3d 197.) The jury was instructed with CALCRIM No. 875 that to find Brugman’s vehicle constituted a deadly weapon, it was required to find that Brugman’s vehicle was “used in such a way that it [was] capable of causing and likely to cause death or great bodily injury.” (See People v. Perez (2018) 4 Cal.5th 1055, 1065, 232 Cal.Rptr.3d 51, 416 P.3d 42 [“a ‘deadly weapon’ under section 245, subdivision (a)(1) is ‘ “any object, instrument, or weapon which is used in such a manner as to be capable of producing and likely to produce, death or great bodily injury,” ’ ” and “cases have recognized a vehicle as a deadly weapon based on the manner it was used”].)

The Court of Appeal fling conviction for assault with a deadly weapon is supported by substantial evidence.

March 27, 2021

Resisting arrest requires that police are acting lawfully

by Uthman Law Office

People v. Southard (Cal. Ct. App., Mar. 24, 2021, No. A157236) 2021 WL 1114283, at *1

Summary: John Wesley Southard was involved in two traffic stops in December 2018 and was charged with seven counts of obstructing a peace officer and forcible resistance of an officer—charges that require the People to prove the officers were acting lawfully—and one misdemeanor count of possession of methamphetamine. Southward was convicted on all charges and was sentenced to five years four months in prison.

On appeal, Southard argued that the trial court: (1) gave a special instruction based on language from an appellate opinion that acted to remove the lawful performance element of the resisting charges; (2) gave CALCRIM No. 250 that acted to remove the knowledge element of the charged offenses.The Court of Appeal agreed with these arguments and concluded the errors were prejudicial. The Court reversed the convictions.

March 25, 2021

California Supreme Court Affirms Right To Affordable Bail

by Uthman Law Office

In The Supreme Court Of California

In Re Kenneth Humphrey On Habeas Corpus; S247278First Appellate District, Division Two A152056;San Francisco City And County Superior Court 17007715; March 25, 2021

In an unanimous decision, the California Supreme Court held that:“No person should lose the right to liberty simply because that person can’t afford to post bail.” “The median bail amount in California ($50,000) is more than five times the median amount in the rest of the nation (less than $10,000).”

March 21, 2021

Restitution for civil attorney fees paid by a victim may be ordered in a criminal case

by Uthman Law Office

People v. Marrero (2021) 60 Cal.App.5th 896

Summary: Armando Milan Marrero pleaded guilty to driving under the influence of alcohol and causing bodily injury to another person (Veh. Code, § 23153, subd. (a)). The trial court suspended imposition of sentence for five years and granted formal probation. Two victims retained an attorney and paid him $375,000 in accordance with their contingency fee agreement, after a settlement was reached.

In Marrero’s criminal case, the prosecutor requested that the victims be awarded $375,000 in restitution based on the actual fee paid to the attorney. The court ordered restitution in the amount of $358,047.79, covering $350,000 in attorney fees and approximately $8,000 in travel expenses.

March 14, 2021

US Supreme Court: Non Permanent Residents Must Show They Were Not Convicted Of A Crime Of Moral Turpitude in Immigration Removal Proceedings

by Uthman Law Office

Pereida v. Wilkinson (U.S., Mar. 4, 2021, No. 19-438) 2021 WL 816351, at *1–2

Summary:Immigration officials initiated removal proceedings against Clemente Avelino Pereida for entering and remaining in the country unlawfully. Mr. Pereida sought to establish his eligibility for cancellation of removal under the Immigration and Nationality Act (INA). 8 U.S.C. §§ 1229a(c)(4), 1229b(b)(1). Nonpermanent residents must prove that they have not been convicted of specified criminal offenses. § 1229b(b)(1)(C) for eligibility. Mr. Pereida was convicted of a crime under Nebraska state law. See Neb. Rev. Stat. § 28–608 (2008). Analyzing whether Mr. Pereida’s conviction constituted a “crime involving moral turpitude” that would bar his eligibility for cancellation of removal, §§ 1182(a)(2)(A)(i)(I), 1227(a)(2)(A)(i), the immigration judge found that the Nebraska statute stated several separate crimes, some of which involved moral turpitude and one—carrying on a business without a required license—which did not. Nebraska had charged Mr. Pereida with using a fraudulent social security card to obtain employment, so the immigration judge concluded that Mr. Pereida’s conviction was likely not for the crime of operating an unlicensed business, and the conviction likely constituted a crime involving moral turpitude. The Board of Immigration Appeals and the Eighth Circuit concluded that the record did not establish which crime Mr. Pereida stood convicted of violating. Mr. Pereida bore the burden of proving his eligibility for cancellation of removal and the ambiguity in the record meant he had not carried that burden and he was ineligible for discretionary relief.

Holding: Under the INA, certain nonpermanent residents seeking to cancel a lawful removal order bear the burden of showing they have not been convicted of a disqualifying offense. A nonpermanent resident has not carried that burden when the record shows he has been convicted under a statute listing multiple offenses, some of which are disqualifying, and the record is ambiguous as to which crime formed the basis of his conviction.

March 7, 2021

Court Room Zoom Etiquette

by Uthman Law Office

As the result of the Covid-19 pandemic, Zoom Court Hearings have become common. Attorneys, parties, and other participants have participated in the virtual hearings in a more relaxed, informal, and at times in an inappropriate manner.

Maintaining the same decorum, formality, and respect for the court and with all other participants in the Zoom hearing shows respect for the judicial process and strengthens the presentation of your case.

Judges appear in black robes during virtual Zoom hearings. Attorneys and court participants should dress in a professional manner as in in a courtroom. Court participants would not wear T-shirts, jeans, hats, and similar clothing in a courtroom, they should also not dress in that manner while they are participating in a remote virtual Zoom hearing.

March 6, 2021

Attempted DUI with priors is a felony

by Uthman Law Office

People v. Cummings (Cal. Ct. App., Mar. 3, 2021, No. C084505) 2021 WL 803686, at *1–5

Summary:Cummings entered a plea of no contest to attempted driving with a blood alcohol-level of 0.08 percent or more within 10 years of a felony conviction for driving under the influence (DUI) (Pen. Code, § 664/Veh. Code, §§ 23152, subd. (b), 23550.51) and admitting two prior DUI convictions.

Cummings was granted five years of formal probation.

February 28, 2021

Lifer Granted Elderly Parole Need Not Serve Sentence For In-Prison Conduct

by Uthman Law Office

In re Hoze (Cal. Ct. App., Feb. 25, 2021, No. A158399) 2021 WL 732072, at *1

Summary: Johnnie Hoze was 67 years old and had served nearly four decades in state prison on an indeterminate life sentence when the Board of Parole Hearings (“Board”) found him suitable for parole under the Elderly Parole Program (Pen. Code, § 3055). Before he could be released, however, the Board determined that Hoze must serve additional sentences for two offenses he committed in prison, consistent with ssection 1170.1(c). Hoze filed a habeas corpus petition alleging he was entitled to immediate release under the Elderly Parole Program. The trial court granted the petition. The Court of Appeal agreed with the trial court: Hoze is not required to serve his sentences for in-prison offenses because a grant of parole under section 3055 supersedes section 1170.1(c).

Facts:

February 21, 2021

DMV may use blood test results to suspend licenses even if there is a violation of blood test regulations

by Uthman Law Office

WILLIAM LEE GERWIG, JR., Plaintiff and Appellant, v. STEVE GORDON, as Director, etc., Defendant and Respondent. (Cal. Ct. App., Feb. 19, 2021, No. D076921) 2021 WL 650274

Summary: When the Department of Motor Vehicles (DMV) holds an administrative hearing to consider whether to suspend a driver’s license, it can usually support its case by relying on an Evidence Code presumption that chemical blood tests were properly conducted, and the results are thus reliable. Here, the Court of Appeal concluded that licensees rebut that presumption only when they cast doubt on the integrity of the test. A violation of governing regulations that has only a tenuous connection to the accuracy of the results is not enough. Here, plaintiff proved a regulatory violation with only an indirect and speculative relationship to the manner in which the blood test was conducted, and to the reliability of the test results. The Court affirmed.

BACKGROUND