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Favor v. Superior Court of San Bernardino County (Cal. Ct. App., Jan. 13, 2021, No. E075340) 2021 WL 118005 

Summary: The right to a preliminary hearing within 60 days of arraignment “is absolute absent a defendant’s personal waiver.” (Ramos v. Superior Court (2007) 146 Cal.App.4th 719, 729, 53 Cal.Rptr.3d 189.)

Here, Favor agreed to a limited waiver of this right and consented to a new deadline that was 76 days after arraignment. The preliminary hearing was not held by that date, so Favor moved for mandatory dismissal under Penal Code section 859b. The People argue that there can be no limited waiver of the 60-day deadline, so Favor’s waiver was a general one that allowed the preliminary hearing to be set later than he authorized, even without a further waiver.

CDCR incarcerates people convicted of violent felonies, supervises those released to parole, and provides rehabilitation programs to help them reintegrate into the community with the tools to be drug-free, healthy, and employable members of society. The Budget proposes total funding of $13.1 billion ($12.7 billion General Fund and $345 million other funds) for the Department in 2021-22.

The COVID-19 Pandemic has impacted every aspect of prison operations and the 2020 Budget Act projected an overall adult inmate average daily population of 122,536 in 2020-21. The average daily adult inmate population for 2020-21 is now projected to be 97,950, a decrease of 20 percent from spring projections.

Some of this decrease is attributable to suspending county intake in response to the COVID-19 Pandemic, which when resumed, will increase the population. Current projections show the adult inmate population is trending downward and is expected to decrease by another 2,626 offenders between 2020-21 and 2021-22.

In re Gadlin Supreme Court of California. December 28, 2020 — P.3d —- 2020 WL 7690154

 Proposition 57- nonviolent felony parole consideration

In 2009, a three-judge federal district court panel ordered the CDCR “to reduce the prisoner population to 137.5% of the adult institution’s total design capacity.” (Coleman v. Schwarzenegger (E.D.Cal. 2009) 922 F.Supp.2d 882, 962; see also Brown v. Plata (2011) 563 U.S. 493, 501–503, 131 S.Ct. 1910, 179 L.Ed.2d 969.) The California Legislature and electorate subsequently enacted several measures aimed to reduce the prison population, including Assembly Bill No. 109 (Stats. 2011, ch. 15, § 482 (2011–2012 Reg. Sess.); criminal realignment) and Proposition 36 (the Substance Abuse and Crime Prevention Act of 2000). In February 2014 the federal district court ordered the Department to implement additional measures.

People v. Brooks (Cal. Ct. App., Dec. 22, 2020, No. A158988) 2020 WL 7586811, at *1

Summary: Jason Brooks appealed  the denial of a petition seeking recall of his sentence pursuant to Penal Code section 1170.91. Brooks agreed to a stipulated term of years in a plea bargain 13 years ago, and  sought recall of his sentence under section 1170.91, subdivision (b)(1), invoking an amendment to section 1170.91 enacted two years ago. The Court of Appeal upheld the summary denial of his petition.

Facts:

People v. Gentile, Supreme Court of California, (S256698), December 17, 2020 — P.3d —- 2020 WL 7393491

Aider and abettors and liability under the natural and probable consequences doctrine

An accomplice who aids and abets a crime is liable  for both that crime and any other offense committed that is the natural and probable consequence of the aided and abetted crime. Liability under the natural and probable consequences doctrine can be imposed even if the accomplice did not intend the additional offense. (People v. McCoy (2001) 25 Cal.4th 1111, 1117, 108 Cal.Rptr.2d 188, 24 P.3d 1210 (McCoy).

David Peter Moore, Sr., Petitioner, V. The Superior Court of Riverside County, Respondent; THE PEOPLE, Real Party in Interest. Court of Appeal, Fourth District, Division 2, California. December 11, 2020 — Cal.Rptr.3d —- 2020 WL 7296513

Summary: Vehicle Code section 23640 and its predecessor, Vehicle Code former section 23202, have generally made DUI defendants ineligible for any form of pretrial diversion. In 2018, the Legislature enacted Penal Code section 1001.36, making defendants charged with “a misdemeanor or felony” and who suffer from a qualifying mental health disorder generally eligible for pretrial mental health diversion. (Stats. 2018, ch. 34, § 24.) The Legislature then amended Penal Code section 1001.36 to make defendants charged with murder and other specified offenses categorically ineligible for pretrial mental health diversion. (§ 1001.36, subd. (b)(2); Stats. 2018, ch. 1005, § 1.) But the Legislature did not amend Penal Code section 1001.36 to clarify that DUI defendants are eligible for pretrial mental health diversion, notwithstanding Vehicle Code section 23640.

The issue in this case is one of statutory interpretation: In light of Vehicle Code section 23640, are DUI defendants categorically ineligible for pretrial mental health diversion under Penal Code section 1001.36? In Tellez v. Superior Court (2020) 56 Cal.App.5th 439 (Tellez), the Court  addressed the same question and concluded, based on the legislative history of Penal Code sections 1001.36 and 1001.80 (military diversion), that the Legislature did not intend DUI defendants to be eligible for pretrial mental health diversion under section 1001.36. (Tellez, at pp. 447-448.)

AB 3234,  taking effect on January 1, 2021, allows for diversion in almost all misdemeanor cases, including DUI, vehicular manslaughter, elder abuse, child abuse, assault, hate crimes, carrying a concealed firearm, possession of a firearm in a school zone, criminal threats, and dissuading a witness.  Upon completion of diversion, as defined by the judge, the case shall be dismissed and the crime deemed to never have occurred.

Diversion and dismissal of the case under AB 3234

Under AB 3234, a judge in the superior court in which a misdemeanor is being prosecuted can offer misdemeanor diversion to a defendant over the objection of a prosecuting attorney, except as specified. A judge can continue a diverted case for a period not to exceed 24 months and order the defendant to comply with the terms, conditions, and programs the judge deems appropriate based on the defendant’s specific situation. At the end of the diversion period, if the defendant complies with all required terms, conditions, and programs, the judge is required to  dismiss the case  against the defendant. The arrest upon which diversion was imposed  will be deemed to have never occurred.  The court may end the diversion and order resumption of the criminal proceedings if the court finds that the defendant is not complying with the terms and conditions of diversion.

People v. Hall (Cal. Ct. App., Nov. 24, 2020, No. A157868) 2020 WL 6882240, at *1–7

Facts:  When Hall was pulled over for a vehicle-equipment violation in 2018, a San Francisco police officer observed in the car “a clear plastic baggie” of what appeared to be marijuana. Police officers the.  searched Hall’s car and found a gun in a closed backpack, resulting in criminal charges against Hall. The trial court denied Hall’s motion to suppress the evidence found in this search.

Proposition 64

In re Canady (Cal. Ct. App., Nov. 25, 2020, No. C089363) 2020 WL 6938325, at *1–3

 Summary: Canady filed a writ of habeas corpus in the superior court seeking early parole consideration under Proposition 57, also known as the Public Safety and Rehabilitation Act of 2016 (Prop. 57). Canady asserted the California Department of Corrections and Rehabilitation’s (CDCR) regulation implementing Prop. 57 was inconsistent with the Proposition. The CDCR regulation did not consider conduct credits inmates earned while incarcerated in the calculation of inmates’ nonviolent early parole eligible dates. The superior court agreed with Canady and invalidated the Department’s regulation as contradicting the stated purposes of the Proposition.

The Attorney General appealed from the superior court’s order, arguing that the regulation is consistent with and authorized by the plain language of Prop. 57, which grants broad discretion. The Court of Appeal agreed and reversed the order.

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.”

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