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San Francisco Criminal Lawyer Blog

September 24, 2020

A conviction set aside pursuant to section 1210.1, subdivision (e)(1), still exists for some purposes and the arrest cannot be sealed

by Uthman Law Office

People v. D.C. (Cal. Ct. App., Sept. 16, 2020, No. F078629) 2020 WL 5542090, at *1–5

Summary:

D.C.petitioned to seal his arrest record under Penal Code section 851.91 after pleading no contest to possession of a controlled substance and successfully completing treatment and probation pursuant to section 1210.1.the trial court ruled that he was ineligible for relief under section 851.91. D.C. appealed claiming he qualifies for relief under section 851.91 as a person whose arrest did not result in a conviction because his arrest and conviction are deemed never to have occurred pursuant to section 1210.1, subdivision (e)(1).

September 13, 2020

The Right to Counsel Under Section 1170.95 Attaches Upon the Filing of a Facially Sufficient Petition

by Uthman Law Office

People v. Cooper (Cal. Ct. App., Sept. 1, 2020, No. A156880) 2020 WL 5175210

Summary:

Cooper was convicted by no contest plea of one count of second degree murder and filed petition for resentencing, alleging he pleaded no contest because he had faced possibility of conviction of first or second degree murder under felony murder or natural and probable consequences theory. The Superior Court, Alameda County, denied the petition without appointing counsel. Cooper appealed and the Court of Appeal, Humes, held that:

September 6, 2020

Murder conviction reversed because trail court excluded significant evidence of the victim’s violent character

by Uthman Law Office

People v. DelRio (Cal. Ct. App., Aug. 31, 2020, No. B298637) 2020 WL 5104917

Facts:

DelRio and his cousin Raul Prieto had a gunfight in front of a house on a cul-de-sac. Prieto shot his nine-millimeter pistol 15 times but missed every time. DelRio fired his .40-caliber pistol twice and each bullet hit Prieto. Each shot was fatal.

August 30, 2020

California Supreme Court states financial circumstances must be considered in setting bail (Humphrey)

by Uthman Law Office

The State Supreme Court posted an order on the docket of In re Humphrey (2018) 19 Cal.App.5th 1006, pending as # S247278, making Part III of the Court of Appeal decision in the case legal precedent. That part of the appellate opinion holds that due process requires consideration of the defendant’s financial circumstances in setting conditions of release. And it holds that bail schedules cannot be used by the court in setting conditions for release of a defendant when pretrial detention is not required.

Background of the case in San Francisco Superior Court

Humphrey, a retired shipyard laborer, then 63 years of age and a lifelong resident of San Francisco was arrested and charged with first degree robbery (Pen. Code, § 211),3 first degree residential burglary (§ 459), inflicting injury (but not great bodily injury) on an elder and dependent adult (§ 368, subd. (c)), and theft from an elder or dependent adult, charged as a misdemeanor. (§ 368, subd. (d).)

August 23, 2020

Odor and unsealed bag of marijuana in car provide probable cause to search the passenger’s purse.

by Uthman Law Office

People v. McGee, 2020 WL 4783643 (Cal.App. 3 Dist.); filed 7/28/20; published 8/18/20

Facts and Procedural Background

On July 28, 2018, Stockton Police Officers initiated a traffic stop of McGee’s car after noticing its registration had expired. The officers noted the scent of unburned marijuana. McGee denied having any marijuana in the car. But an officer saw an unsealed bag of marijuana in the passenger’s cleavage. The officers informed McGee they were going to search the car. McGee did not consent to a search. The bag of marijuana was seized from the passenger. A zipped purse on the passenger floorboard was searched for “anything illegal, any contraband that could be in the vehicle.” A loaded handgun was seized from the purse.

August 17, 2020

Confrontation clause requires that the scientist who performed a drug analysis testify

by Uthman Law Office

People v. Ogaz, 2020 WL 4581253 (Cal.App. 4 Dist., 2020) 07/14/2020; Modified 08/10/2020

Summary: Ignacio Ogaz appealed his conviction for and argued that his Sixth Amendment right to confront adverse witnesses was violated by the admission of drug testing evidence. The Court of Appeal held that the confrontation clause requires that the defendant have an opportunity to cross-examine the scientist who performed the analysis.

Facts: During a search of Ogaz, a Police Officer found a large baggie in his pocket which contained a brown powder that looked and smelled like heroin and a white crystal substance that looked like methamphetamine. The Officer weighed the powder and crystals and determined they had a combined weight of 10.5 grams. A presumptive test he performed showed that the powder tested positive for heroin, and the crystals tested positive for methamphetamine.

August 12, 2020

Enhancements for drug priors must be stricken if not final on appeal: For plea bargains-a new deal must be reached

by Uthman Law Office

People v. Barton (Cal. Ct. App., Aug. 4, 2020, No. F076599) 2020 WL 4462790

Facts: Barton pleaded guilty to furnishing methamphetamine (Health & Saf. Code, § 11379, subd. (a)) and maintaining a place for the sale of a controlled substance (id., § 11366). Barton admitted to having twice been convicted of violating section 11379. In her plea agreement, Barton waived her appeal rights and she received a stipulated prison sentence of eight years eight months, which included a pair of three-year enhancements for the drug-related priors.

Barton entered her plea on September 25, 2017 and was sentenced on October 23, 2017. On October 11, 2017, Governor Brown approved Senate Bill No. 180 (2017–2018 Reg. Sess.) which went into effect on January 1, 2018. The legislation amended section 11370.2 by eliminating its three-year enhancements for most drug-related prior convictions.

August 2, 2020

Marin County Superior Court sets briefing schedule for San Quentin COVID 19 habeas petitions

by Uthman Law Office

A Marin County Superior Court judge has ordered the California Department of Corrections and Rehabilitation (CDCR) to respond by August 4, 2020, in an expedited briefing schedule, to petitions requesting immediate release of 21 people at San Quentin State Prison. The petitions were filed by inmates at San Quentin in pro per and by and attorneys representing inmates, including the San Francisco Public Defender.

The petitions address the COVID 19 outbreak at San Quentin that has infected over 2,000 people living and working at San Quentin, resulting in staffing shortages, lockdown, and fear for those incarcerated and their families. The COVID-19 infection rate in San Quentin is 63% while California’s infection rate is 1%.

“Incarcerated people at San Quentin are scared to death,” said Marin County Public Defender Jose Varela. “Judge Howard has ordered CDCR to respond. And his seeking quick input from all parties reflects the important human rights issues at the heart of this litigation.”

July 26, 2020

Timeliness in filing a habeas action: Supreme Court rules 120 days between filing is not substantial delay.

by Uthman Law Office

Robinson v. Lewis, 2020 WL 4045925, Supreme Court of California, S228137, July 20, 2020

A challenge to a state judgment of conviction through a petition for a writ of habeas corpus in state court must present each claim in a timely fashion. However, California law does not fix a determinate deadlines. An indeterminate ‘reasonableness’ standard is used to assess whether a claim was presented in a timely manner. In this case, Robinson, a prison inmate filed a petition for a writ of habeas corpus challenging his state court judgment in the superior court. Sixty days after the court denied the petition, he filed a new petition for a writ of habeas corpus in the Court of Appeal raising the same claims. The Court of Appeal denied the petition and he filed a new original petition for a writ of habeas corpus in the Supreme Court. After a denial by the Supreme Court, he filed a petition for a writ of habeas corpus in federal district court challenging the same judgment. The petition was denied, and Robinson appealed to the United States Court of Appeals for the Ninth Circuit.

Federal time limits and timely filing in state courts-Ninth Circuit Request for clarification.

July 19, 2020

City of Berkeley Approves Measure Removing Police From Traffic Stops

by Uthman Law Office

The Berkeley City Council approved a measure that would create a new Department of Transportation and remove police from traffic stops. The use of unarmed public works officials to enforce traffic laws is aimed at reducing racial profiling and law enforcement contacts that can escalate into violence, especially for Black drivers.

The Berkeley City Council measure removing traffic from law enforcement is the first of its kind in the U.S. and is likely to be emulated as other cities adopt public safety reforms following the death of George Floyd in May.

Studies have shown Black motorists are much more likely to be stopped by police than whites for minor traffic infractions that turn fatal. For example, Philando Castile, 32, was shot and killed after he was pulled over for a busted tail light during a traffic stop in 2016 in Minnesota. Sandra Bland, 28, died in a jail cell three days after being stopped for failing to signal when changing lanes in Texas in 2015.