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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

The United States Supreme Court decision in New York State Rifle & Pistol Ass’n, Inc. v. Bruen (2022) 142 S. Ct. 2111 renders possession of a concealed firearm and criminalizing carrying a loaded firearm on your person or in a vehicle in any public place or on a public street and (California Penal Code sections 25400(a) and 25850(a)) unconstitutional under the Second and Fourteenth Amendments of the U.S. Constitution.

§ 25400(a)(1) and 25850(a) fail Bruen’s Second Amendment test.

The Bruen court reiterated the proper standard for applying the Second Amendment: When the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct. The government must then justify its regulation by demonstrating that it is consistent with the Nation’s historical tradition of firearm regulation. The test “requires courts to assess whether modern firearms regulations are consistent with the Second Amendment’s text and historical understanding.”

ELECTRONIC FRONTIER FOUNDATION, INC., Plaintiff and Appellant, v.The SUPERIOR COURT OF SAN BERNARDINO COUNTY, Defendant and Respondent; San Bernardino County District Attorney’s Office et al., Real Parties in Interest and Respondents. E076778; Filed September 15, 20222022 WL 4243552 (Cal.App. 4 Dist.)


Background: A Civil-liberties organization filed a petition to unseal search warrants and supporting affidavits under which county sheriff’s office was authorized to use cell-site simulators to obtain location data about cell phones. The Superior Court granted county’s motion for judgment on organization’s petition and held that the disputed materials should remain sealed. The Organization appealed.

The PEOPLE, Plaintiff and Respondent, v.Frank Eli HEARD, Defendant and Appellant; D079237; Filed September 20, 20222022 WL 4353385 (Cal.App. 4 Dist.)

 Summary: Heard was sentenced to a term of 23 years plus 80 years to life for two counts of attempted willful, deliberate and premeditated murder for a drive-by shooting he committed at age 15, and one count of voluntary manslaughter for a homicide he committed just after he turned 16. After 15 years in prison, Heard  petitioned the trial court to recall his sentence and resentence him to a lesser sentence under Penal Code section 1170, former subdivision (d)(2) (now subdivision (d)(1)).

Under this provision, a juvenile offender who “was sentenced to imprisonment for life without the possibility of parole” and has been incarcerated for at least 15 years “may submit to the sentencing court a petition for recall and resentencing.” The trial court denied Heard’s petition, finding him ineligible for relief because he was not sentenced to a term of life without the possibility of parole.

The PEOPLE, et al., Plaintiffs and Respondents, v.BOARD OF PAROLE HEARINGS, Defendant and Appellant; Nathan Joshua Ramazzini, Real Party in Interest and Appellant. C093941,Filed September 15, 2022

2022 WL 4244262 (Cal.App. 3 Dist.)

Summary: in 1997, Ramazzini was convicted of a first degree murder with a special circumstance he committed when he was was 16 years old. Ramazzini was sentenced to life in prison without the possibility of parole (LWOP).At the time Ramazzini was sentenced, courts interpreted section 190.5, subdivision (b) as establishing a presumption in favor of LWOP. (People v. Guinn (1994) 28 Cal.App.4th 1130, 33 Cal.Rptr.2d 791, disapproved by People v. Gutierrez (2014) 58 Cal.4th 1354, 171 Cal.Rptr.3d 421, 324 P.3d 245 (Gutierrez).)

THE PEOPLE, Plaintiff and Respondent, v. ALAN BUENO, Defendant and Appellant.

Court of Appeal, Fourth District, Division 1 (D078700;Filed 09/09/20)

Summary: Bueno,  a prisoner inmate at the time, arranged with a prison employee codefendant to obtain a cellular telephone. Bueno pleaded no contest to one felony count of conspiracy to violate Penal Code section 4576, subdivision (a), which bars possession with the intent to deliver or the actual delivery of a cellular telephone to a prison inmate. The  trial court had denied his motion to dismiss the conspiracy charge.

THE PEOPLE, Plaintiff and Respondent, v. ALBERT GARCIA, Defendant and Appellant. (Cal. Ct. App., Sept. 2, 2022, No. C093430) 2022 WL 4007827, at *1

Summary: Garcia physically assaulted and stole money from an 82-year-old man, who died about an hour later from lethal cardiac arrhythmia. A jury found Garcia guilty of first degree murder (Pen. Code, § 187)1 and robbery (§ 211). The trial court sentenced him to  27 years to life in prison, and the Court of Appeal  affirmed the judgment in an unpublished opinion noting that the prosecution’s theory was felony murder, and concluded that the felony-murder rule applied to the facts of this case because there was substantial evidence the robbery, either the physical altercation or the emotional stress, caused the victim’s death.

In 2019, after the passage of Senate Bill No. 1437 which narrowed the class of persons liable for felony murder, Garcia  petitioned for resentencing under section 1172.6 (former § 1170.95).Following the appointment of counsel, briefing and a hearing, the trial court denied the petition in August 2020. The court found that defendant was ineligible for resentencing as a matter of law because he was the “actual killer,” a felony-murder theory that remains valid after the passage of Senate Bill No. 1437.

People v. Aguayo (Cal., Aug. 25, 2022, No. S254554) 2022 WL 3652056, at *1

Summary: Aguayo was charged with and convicted of both assault with a deadly weapon other than a firearm (Pen. Code,1 § 245, subd. (a)(1)), and assault by means of force likely to cause great bodily injury (id., subd. (a)(4)).

A defendant may be charged in an accusatory pleading with “two or more different offenses connected together in their commission” and “may be convicted of any number of the offenses charged.” (§ 954.) “The same act can support multiple charges and multiple convictions.” (People v. Gonzalez (2014) 60 Cal.4th 533, 537 (Gonzalez).) However, if two alleged offenses are “different statements of the same offense” (§ 954), both offenses may be charged based on the same act, but convictions for both cannot stand. (See People v. Vidana (2016) 1 Cal.5th 632, 648 (Vidana).)

People v. Hendrix (Cal., Aug. 22, 2022, No. S265668) 2022 WL 3581973

 Summary: Hendrix walked around a house to the backyard, opened a screen door, and unsuccessful tried  to open the locked glass door behind it. Hendrix then sat down on a bench and stayed there. Hendrix was sitting on the bench when police arrived. Hendrix told police he was there to visit his cousin, but Hendrix’s cousin did not, in fact, live in the house. Hendrix was charged with burglary.

The trial court gave the jury a standard mistake of fact instruction, which informed jurors that they should not convict Hendrix if they determined he lacked criminal intent because he mistakenly believed a relevant fact —that the house belonged to his cousin and not to a stranger. The instruction specified that the mistake had to be a reasonable one. To negate the specific criminal intent required for burglary, a defendant’s mistaken belief need not be reasonable, just genuinely held. The issue before the California  Supreme Court was whether the instructional error was prejudicial and requires reversal. The Court of Appeal, concluded that Hendrix’s claim of mistake was not credible and reversal was not required. The Supreme Court held that the instructional error precluded the jury from giving full consideration to a mistake of fact claim that was supported by substantial evidence. Resolution of the issue was central to the question whether Hendrix possessed the criminal intent necessary for conviction. Whether that claim is credible is a matter for a jury to decide. The Supreme the judgment of the Court of Appeal and remand for further proceedings.

People v. Guillory (Cal. Ct. App., Aug. 17, 2022, No. A161952) 2022 WL 3442330, at *1–5

Summary: Guillory, convicted in 2004 of kidnapping, carjacking, robbing, and murder argued that  she qualifies for relief under the new felony murder resentencing law law because the jury rejected a special circumstances allegation regarding the kidnapping. She asserts this finding triggered section 1172.6, subdivision (d), which mandates vacatur and resentencing “[i]f there was a prior finding by a court or jury that the petitioner did not act with reckless indifference to human life or was not a major participant in the felony.” (§ 1172.6, subd. (d)(2).)

The Court of Appeal found that there  were viable bases for murder liability independent of the rejected special circumstances allegation. Therefore, 1172.6, subdivision (d)(2) cannot plausibly be read to mandate automatic vacatur of the murder conviction and resentencing. The Court also reject Guillory’s claim that Proposition 57 applies retroactively to her case under People v. Superior Court (Lara) (2018) 4 Cal.5th 299 (Lara).

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