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We are happy to announce that we have resumed normal office hours from 9:30 AM to 5:30 PM Monday through Thursday, to assist you with your essential legal matters and needs. For the short term we will remain closed on Fridays. We encourage clients to try and communicate with us by phone and email. If you do need to come into the office, we require face masks and we are maintaining social distancing

RICHARD J. CRANE, Plaintiff and Appellant, v. JOSEPH CLAY DOLIHITE, Defendant and Respondent. (Cal. Ct. App., Oct. 22, 2021, No. F079877) 2021 WL 4929340, at *1

 Summary: Crane, a prisoner representing himself, appealed  from the dismissal of his personal injury action against an inmate who stabbed him in the neck with a pencil. The dismissal was based on Crane’s failure to serve the summons and complaint on the inmate who stabbed him within the time prescribed by statute. (See Code Civ. Proc., §§ 583.210, subd. (a) [plaintiff must serve a defendant within three years], 583.250.)

Crane was unable to serve the summons and complaint on the prisoner because;  (1) the defendant was transferred to Salinas Valley State Prison in Monterey County; (2) Crane was unable to identify the defendant’s location; (3) the superior court advised Crane to use the sheriff’s office to effect service but, the Monterey County Sheriff’s Office refused to serve the summons and complaint; and (4) the litigation coordinator at Salinas Valley State Prison refused to accept service on behalf of the defendant inmate. The litigation coordinator’s refusal is contrary to  Penal Code section 4013, subdivision (a) and Code of Civil Procedure section 416.90, which have been interpreted as authorizing litigation coordinators at state prisons to accept service on behalf of inmates. (Sakaguchi v. Sakaguchi (2009) 173 Cal.App.4th 852, 858–859 (Sakaguchi).)

People v. Cepeda (Cal. Ct. App., Oct. 18, 2021, No. B307000) 2021 WL 4843561, at *1

Summary: In 2018, Cepeda pled guilty to carjacking as a second strike, and admitted he sustained a prior serious felony conviction. The trial court sentenced him to 15 years in state prison, which included a five-year enhancement for the prior serious felony conviction. At the time of Cepeda’s plea and sentence, courts were prohibited from striking serious felony enhancements under Penal Code section 667, subdivision (a)(1).

CDCR Recommendation for Resentencing

People v. Sands (Cal. Ct. App., Oct. 12, 2021, No. A160973) 2021 WL 4739531, at *1–2

Summary: Sands was 24 years old when he committed a special circumstance murder (Pen. Code §§ 187, 190.2, subd. (a)(10)), and was sentenced to life without the possibility of parole. He filed a motion in the superior court, seeking to develop a record of mitigating circumstances for an eventual youth offender parole hearing (see People v. Franklin (2016) 63 Cal.4th 261, 202 Cal.Rptr.3d 496, 370 P.3d 1053 (Franklin)). The trial court denied Sands’s motion, and he appeals. Having been sentenced to life without the possibility of parole for a crime he committed after the age of 18, he is statutorily ineligible for a youth offender parole hearing (§ 3051, subd. (h)) but argues that the statutory exclusion violates his rights to equal protection.  The Court of Appeal  disagreed and affirmed.

Youth Offender Parole Hearings

People v. Pillsbury (Cal. Ct. App., Sept. 30, 2021, No. C089002) 2021 WL

Summary: Pillsbury was convicted of one count of robbery in the second degree with firearm enhancement and one count of commercial burglary. The Secretary of Department of Corrections and Rehabilitation (CDCR) submitted a letter to trial court recommending that defendant’s aggregate sentence of 13 years be recalled and that defendant be resentenced under statutory amendment authorizing courts to strike or dismiss firearm enhancements in interest of justice. The Superior Court, Sacramento County, summarily declined to recall and resentence Pillsbury without providing him notice or opportunity to provide additional information. Pillsbury appealed.

The Court of Appeal held that:

THE PEOPLE, Plaintiff and Respondent, v. MICHAEL ANTHONY FLORES, Defendant and Appellant. (Cal. Ct. App., Oct. 8, 2021, No. C089569) 2021 WL 4698468, at *1–2

Summary: Flores was found guilty of voluntary manslaughter after the jury initially declared it was unable to reach a unanimous verdict. Flores moved for a new trial based on evidence the jury considered his sentence in determining the verdict. The jurors’ declarations in support of the new trial motion showed the jury was deadlocked between second degree murder and voluntary manslaughter. After discussing the possibility that Flores would “walk” if it were to hang, the jury found him guilty of voluntary manslaughter. The trial court denied defendant’s new trial motion, finding inadmissible any evidence of the jury’s deliberations regarding punishment and that discussing punishment during deliberations is not misconduct.

The court of appeal reversed, finding: (1) the trial court erred in finding inadmissible the entire contents of the jurors’ declarations submitted in support of the new trial motion; (2) consideration of the admissible portions of the jurors’ declarations establish misconduct occurred, raising a rebuttable presumption of prejudice; and (3) the People failed to rebut the presumption of prejudice.

People v. Fultz (Cal. Ct. App., Sept. 27, 2021, No. C088566) 2021 WL 4398649, at *1–2

Summary: Based on the government’s conduct throughout the investigation and trial, the trial court rejected the prosecution’s innocent explanations for the constitutional violations. The trial court then dismissed the case against Fultz finding there was no possibility he could receive a fair trial considering the nature of the evidence against him and the violations surrounding his accomplices’ pleas and interviews.

This People’s appeal concerns the gamesmanship the prosecutor can engage in during a criminal prosecution before that gamesmanship is so unconstitutional the pending murder charge against a defendant must be dismissed because no fair trial could possibly be held. The standard for dismissal is high. (United States v. Morrison (1981) 449 U.S. 361, 365, 101 S.Ct. 665, [66 L.Ed.2d 564, 568-569] [“Our approach has thus been to identify and then neutralize the taint by tailoring relief appropriate in the circumstances to assure the defendant the effective assistance of counsel and a fair trial. The premise of our prior cases is that the constitutional infringement identified has had or threatens some adverse effect upon the effectiveness of counsel’s representation or has produced some other prejudice to the defense. Absent such impact on the criminal proceeding, however, there is no basis for imposing a remedy [of dismissal] in that proceeding, which can go forward with full recognition of the defendant’s right to counsel and to a fair trial”].)

In re Marti (Cal. Ct. App., Sept. 3, 2021, No. C093153) 2021 WL 4452824, at *1

 Summary: CDCR Prisoner Marti filed a petition for writ of habeas corpus challenging the decision finding him guilty of a prison disciplinary violation for possession of excess property made by the warden of Mule Creek State Prison.  Marti was found guilty of an  administrative violation rather than a serious rules violation. Marti claims his rights under prison regulations were violated because the officer who heard  the violation had prior knowledge and involvement in a matter that was used as evidence at Mart’s  disciplinary hearing.

CDCR argues this case is moot because Marti  has already incurred the punishment for the decision and any future impact on him is speculative. Because the court can afford meaningful relief, the case is not moot. Without court intervention, the violation would remain in Mart’s  file and may be considered by prison officials in making decisions relating to him. Prison regulations provide for its consideration in imposing subsequent discipline. The violation may also factor into other prison decisions. The hearing officer should have been recused. Marti is entitled to have the officer’s disciplinary finding vacated.

THE PEOPLE, Plaintiff and Respondent, v. JOSE ALEX MENDEZ, Defendant and Appellant. (Cal. Ct. App., Sept. 24, 2021, No. B306301) 2021 WL 4350480

Summary: Jose Alex Mendez appealed  the denial of a recommendation by the secretary of the California Department of Corrections and Rehabilitation (CDCR) to recall his sentence under Penal Code section 1170, subdivision (d)(1). Mendez claimed that the trial court abused its discretion by failing to adequately weigh his postconviction record and by not giving him an opportunity to be heard on  the recommendation by the CDCR to recall his sentence.

The California Code of Regulations requires the secretary to provide a copy of the recommendation letter and Cumulative Case Summary to the prisoner (Cal. Code Regs., tit. 15, § 3076.1, subd. (e)(2)). Here, the secretary also provided copies of the abstract of judgment and minute orders, along with the recommendation letter and Cumulative Case Summary to the Los Angeles County District Attorney’s Office and the Los Angeles County Public Defender’s Office. However, the  trial court did not give  the parties notice or an opportunity to present additional information on the resentencing recommendation. The Court of Appeal reversed because of the substantial liberty interest at stake when the secretary issues a recommendation to recall an inmate’s sentence. The court of appeal  remanded  to the trial court to give notice to the parties, to allow the parties the opportunity to supplement the CDCR’s recommendation with additional relevant information, and to enable the trial court to exercise its discretion based on any briefing the parties might submit.

The People, Plaintiff and Respondent, v. Sheldon Vaughn Silas et al., Defendants and Appellants. (Cal. Ct. App., Sept. 17, 2021, No. A150512) 2021 WL 4236771

Summary: Defendants Sheldon Silas, Reginald Whitley, Lamar Michaels, and Linda Chaney, all of whom are Black, were tried for crimes related to the murders of Christopher Zinn and Brieanna Dow, who were also Black. The  prosecutor used peremptory strikes against three Black prospective jurors, including one who expressed support for Black Lives Matter. Defendants brought Batson/Wheeler motions to challenge the exclusion.

T]he use of peremptory challenges to remove prospective jurors on the sole ground of group bias violates the right to trial by jury drawn from a representative cross-section of the community under article I, section 16, of the California Constitution.” (People v. Wheeler (1978) 22 Cal.3d 258, 276-277.)

Based on: San Francisco Chronicle, “A woman is suing S.F. for $50 million over a parking ticket, saying tire chalk is unconstitutional,” Rachel Swan, Sep. 11, 2021


ALISON PATRICIA TAYLOR, Plaintiff-Appellant/Cross-Appellee, v. CITY OF SAGINAW, MICHIGAN; TABITHA HOSKINS, Defendants-Appellees/Cross-Appellants. (6th Cir., Aug. 25, 2021, No. 20-1538) 2021 WL 3745345

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