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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

People v. Flores (Cal. Ct. App., Jan. 13, 2022, No. A160578) 2022 WL 121934, at *7–8

Changes to determinate sentencing law in 2022-Senate Bill 567

Felonies typically  carry three possible sentences, called a  low, middle, and high term.  High terms  cannot be imposed without a finding that there are aggravating factors. Previously,  judges could decide  if there were aggravating factors.  Effective January 1, 2022, the  determinate sentencing law, section 1170, was amended. (See Sen. Bill No. 567 (2020–2021 Reg. Sess.); Stats. 2021, ch. 731, § 1.3; Assem. Bill No. 124 (2020–2021 Reg. Sess.); Stats. 2021, ch. 695, § 5.)

People v. Tirado (Cal., Jan. 20, 2022, No. S257658) 2022 WL 176141, at *1

 Summary: Penal Code section 12022.53 authorizes enhancements for certain felonies involving firearms.Section 12022.53, subdivision (h) (section 12022.53(h)) authorizes courts to strike certain enhancements in the interests of justice under the authority of section 1385.

Issue: when the prosecution has alleged, and the jury has found true, the facts supporting an enhancement under section 12022.53, subdivision (d) (section 12022.53(d)). what may the court  do if it decides to strike that enhancement. May the court impose a lesser uncharged enhancement under either section 12022.53, subdivision (b) (section 12022.53(b)) or section 12022.53, subdivision (c) (section 12022.53(c))? Or is the court limited to imposing the section 12022.53(d) enhancement or striking it? The California Supreme Court held that a court may strike the section 12022.53(d) enhancement found true by the jury and impose a lesser uncharged statutory enhancement.

People v. Strother (2021) 72 Cal.App.5th 563

Summary: Strother was convicted of second degree burglary (Pen. Code, § 459)1 and theft of access card information (§ 484e, subd. (d)). Under the Three Strikes law, he was sentenced to two consecutive terms of 25 years to life in prison. In 2013, Strother filed a petition to recall his entire sentence pursuant to Proposition 36 (§ 1170.126), and in 2014 he filed a petition to recall his sentence for theft of access card information pursuant to Proposition 47 (§ 1170.18). The trial court issued an order to show cause why relief should not be granted for both petitions and in found Strother eligible for relief under both propositions. Following a July 2020 hearing on both petitions, the trial court found appellant posed an unreasonable risk of danger to public safety and was not suitable for resentencing. The trial court denied both petitions.

Strother appeals, contending the trial court abused its discretion in finding he posed an unreasonable risk of committing one of the “super strikes” identified in Proposition 47 (§ 1170.18) because the trial court 1) failed to consider that his two prior convictions involving violence and firearm use occurred almost 30 years ago with no evidence he was the shooter; 2) failed to consider his prison fighting from 2016 through 2019 was the result of his gang renunciation in 2016; and 3) erroneously found that his conflict resolution and anger management programming and parole plans were inadequate. He makes similar claims about the trial court’s denial of his Proposition 36 petition. The Court of Appeal affirmed  the trial court’s order.

Grassi v. Superior Court of Orange County (Cal. Ct. App., Dec. 28, 2021, No. G060362) 2021 WL 6124764, at *1

Summary: Grassi filed a petition for writ of mandate after the trial court concluded that she was statutorily ineligible for misdemeanor diversion. Grassi claims that Penal Code section 1001.95’s plain language and legislative history makes diversion available to misdemeanor driving under the influence defendants despite Vehicle Code section 23640’s prohibition on granting diversion to driving under the influence defendants.

The Court of Appeal, in this case of first impression, we conclude the two statutes can be harmonized  to provide diversion to misdemeanor defendants, except for those defendants excluded in Penal Code section 1001.95, subdivision (e), and misdemeanor driving under the influence defendants pursuant to Vehicle Code section 23640. The court denied the petition.

Senate Bill No. 483, effective January 1, 2022, makes changes to the law that invalidated enhancements for prior prison terms and certain drug enhancements retroactive. The Bill retroactively applies Senate Bill 180 and Senate Bill 136 to all persons currently serving a prison for these repealed sentence enhancements.

Senate Bill 180 effective January 1, 2018 repealed the 3-year enhancement for prior drug convictions

 SB 180 repealed the three-year sentence enhancement for prior drug convictions, with the exceptions of drug manufacturing and convictions involving a minor. The enhancement was applied consecutively — three years for every prior conviction for possession for sale, sale or similar drug offense to any person currently convicted for a similar offense.

People v. Nault (Cal. Ct. App., Dec. 20, 2021, No. B306460) 2021 WL 5997961, at *1–3

Summary: Nault, driving whiledrunk after four previous DUI convictions tried to pass an 18-wheeler on a narrow road. Nault’s pickup hit an oncoming car and killed its driver. While Nault was unconscious from the crash, police took a warrantless sample of his blood. Nault argues this violated the Fourth Amendment. The court of appeal affirmed but direct the trial court to stay a second sentence under Penal Code section 654.

Prior DUI Convictions: At his 2020 trial, Nault stipulated to four DUI convictions between 2000 and 2009. On August 11, 2017, a park ranger found Nault digging his pickup out of beach sand. Nault was stumbling about and he sounded and smelled drunk. He refused field sobriety tests and a blood test. He told the ranger to arrest  him and said his blood alcohol content was over 0.08 percent because he drank a Four Loko. The ranger arrested Nault and impounded his truck.  Nault’s license was suspended.

People v. Benzler (Cal. Ct. App., Dec. 14, 2021, No. C092779) 2021 WL 5902741, at *1

 Summary: Benzler, sentenced in 2014 for offenses he committed when he was 18 years old, appealed the summary denial of his motion for a Franklin hearing1 under Penal Code section 1203.01.2.  Benzler contends he satisfied the eligibility criteria for such a hearing laid out in In re Cook (2019) 7 Cal.5th 439, 247 Cal.Rptr.3d 669, 441 P.3d 912 (Cook) and did not previously have an opportunity to present evidence related to his status as a juvenile offender. He argued for remand  so he may make a record of this evidence to use in future parole hearings. The court of appeal reversed the trial court’s order and remanded the matter for further proceedings.

 Facts and background

In re L.J. (Cal. Ct. App., Nov. 30, 2021, No. A161118) 2021 WL 5578276

Summary: Juvenile defendant came within Juvenile Court’s jurisdiction for reckless evasion of a peace officer, assault with a deadly weapon on a peace officer, and assault with force likely to produce great bodily injury. The juvenile was committed to county institution until earliest of age of 21 or maximum custody time of six years and eight months and ordered to participate in treatment program, and Juvenile defendant appealed.

The Court of Appeal  agreed  that the punishment on the reckless evasion of police count must be stayed under section 654 because it is based on the same indivisible course of conduct with the same intent and objective as the assault counts. But the statute concerning offenses punishable in different ways by different provisions of law did not prohibit juvenile defendant from being punished for both assault convictions.

SB 775 expands SB 1437 which changed the felony murder rule for aiders and abettors

SB 1437, passed in 2018 changed the laws about conviction of aiders and abettor for murder  People with murder convictions under the old laws could file a petition asking the court to be resentenced on a less serious felony. Penal Code section 1170.95 details the procedure for resentencing:.

“A person convicted of felony murder or murder under a natural and probable consequences theory may file a petition with the court that sentenced the petitioner to have the petitioner’s murder conviction vacated and to be resentenced on any remaining counts when all of the following conditions apply:

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