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San Francisco Criminal Lawyer Blog

July 3, 2022

Driving while impaired from marijuana supports 2nd degree murder conviction

by Uthman Law Office

People v. Murphy (Cal. Ct. App., June 30, 2022, No. B306773) 2022 WL 2352782, at *1

Summary:Murphy appealed from his three convictions for second degree murder. (Pen. Code, § 187, subd. (a).).1 Murphy argued that evidence supporting his convictions is insufficient because the prosecution failed to prove he acted with implied malice when, while under the influence of marijuana, he drove his car at nearly 90 miles per hour through a red light and collided with another vehicle, killing its occupants.

The court concluded that sufficient evidence supported the jury’s verdict. There is nocommonly administered and standardized medical test equivalent to the blood alcohol concentration test that accurately determines a person’s level of impairment from lipophilic, psychoactive drugs such as marijuana. However, there was substantial evidence that at the time of the accident Murphy was impaired from using marijuana. There was also substantial evidence that Murphy acted with implied malice both when he smoked marijuana with the intent to drive, and when he drove in a manner that demonstrated a conscious disregard for human life.

June 27, 2022

AB 333 -changes to gang enhancements is fully retroactive to all non-final judgments

by Uthman Law Office

People v. Montano (Cal. Ct. App., June 22, 2022, No. F079222) 2022 WL 2236331, at *1

Summary: Defendants appealed from convictions for first degree murder with the special circumstance of lying in wait, and unlawful participation in a criminal street gang.

Assembly Bill No. 333, which amended Penal Code section 186.22 and added a new statute, PenL Code section 1109, is fully retroactive to all nonfinal judgments. The court also held that section 1109, as currently written, does not apply to gang special circumstance allegations under section 190.2(a)(22). Section 1109, subdivision (a) provides for bifurcation of gang enhancement allegations “charged under subdivision (b) or (d) of Section 186.22.” Section 1109, subdivision (b) requires a charge of violating subdivision (a) of section 186.22, the substantive gang offense, to be “tried separately from all other counts that do not otherwise require gang evidence as an element of the crime.” (§ 1109, subd. (b).) The failure to account for section 190.2(a)(22) may have been an oversight by the drafters of section 1109, the court cannot rewrite the statute. Such changes must come from the Legislature.

June 19, 2022

Condition of probation imposing treatment program as directed by probation officer is unconstitutional

by Uthman Law Office

People v. Smith (Cal. Ct. App., June 13, 2022, No. A162551) 2022 WL 2127656, at *1–4

Summary: Smith challenged the trial court’s imposition of a probation condition requiring that she participate in any treatment program, including residential treatment, as directed by her probation officer. Smith contends this condition are unconstitutional and unreasonable. The Court of Appeal agreed that the treatment condition improperly delegates judicial authority to the probation officer.

Facts:Smith, a single mother, was arrested in connection with the theft of a cell phone and iPad from an unlocked vehicle. After Smith gave police consent to search her vehicle, the police found multiple cell phones in her purse, and she admitted she had stolen two iPhones. Police also located a receipt containing the last four digits of a stolen credit card, and Smith stated that she had attempted to use the credit card four times to purchase Target gift cards. In addition, the police found suspected methamphetamine in her purse, and Smith admitted it was hers.

June 11, 2022

Erroneous kill zone instruction requires reversal

by Uthman Law Office

In re Sambrano (Cal. Ct. App., June 9, 2022, No. E078147) 2022 WL 2071115, at *1–4

Summary:In this habeas corpus proceeding, Sambrano seeks reversal of his attempted murder convictions because his jury was given a kill zone instruction that is erroneous under People v. Canizales (2019) 7 Cal.5th 591, 248 Cal.Rptr.3d 370, 442 P.3d 686 (Canizales). The court granted the petition.

and reiterated the following principles concerning the kill zone theory:

June 7, 2022

Impairment from marijuana while driving supports implied malice for murder

by Uthman Law Office

People v. Murphy (Cal. Ct. App., May 25, 2022, No. B306773) 2022 WL 1673827, at *1

Summary: Murphy appealed his three convictions for second degree murder. (Pen. Code, § 187, subd. (a).). The court sentenced him to three concurrent terms of 15 years to life in prison, Murphy argued that the evidence supporting his convictions is insufficient because the prosecution failed to prove he acted with implied malice. Murphy, while under the influence of marijuana, drove his car at nearly 90 miles per hour through a red light and collided with another vehicle, killing its occupants.

The Court of Appeal concluded that sufficient evidence supported the jury’s verdict. Even though there is no standardized medical test equivalent to the blood alcohol concentration test that accurately determines a person’s level of impairment from marijuana, there was substantial evidence that Murphy was impaired from using marijuana and that acted with implied malice both when he smoked marijuana with the intent to drive, and when he drove in a manner that demonstrated a conscious disregard for human life.

June 4, 2022

Prosecutors have a mandatory duty to allege strikes

by Uthman Law Office

Association of Deputy District Attorneys for Los Angeles County v. Gascon (Prosecutors have a mandatory duty to allege strikesCal. Ct. App., June 2, 2022, No. B310845) 2022 WL 1797864, at *1–3

Scope of prosecutorial discretion

Issues on appeal: 1. Can the voters, through the initiative process, or the Legislature, through legislation, require prosecutors to plead and prove prior convictions to qualify a defendant for the alternative sentencing scheme prescribed by the three strikes law? The Court of Appeal ruled: Yes for pleading, no for proving.

May 29, 2022

Proposition 57 Applies to Resentencing

by Uthman Law Office

People v. Padilla (Cal., May 26, 2022, No. S263375) 2022 WL 1672203, at *1

Summary: In 2016, California voters passed Proposition 57, a measure that amended the law governing the punishment of juvenile offenses in adult criminal court by requiring hearings to determine whether the offenses should instead be heard in juvenile court. Adjudicatng theseoffenses in juvenile court typically results in less severe punishment for the juvenile offender. (People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 306–307, 228 Cal.Rptr.3d 394, 410 P.3d 22 (Lara).)

“New laws that reduce the punishment for a crime are presumptively to be applied to defendants whose judgments are not yet final.” (People v. Conley (2016) 63 Cal.4th 646, 656, (Conley), citing In re Estrada (1965) 63 Cal.2d 740, (Estrada).) The retroactivity rule extends to all “nonfinal judgments.” (People v. Esquivel (2021) 11 Cal.5th 671, 677, (Esquivel).) Proposition 57 “ameliorated the possible punishment for a class of persons, namely juveniles.” (Lara, supra, 4 Cal.5th at p. 308.) “Estrada’s inference of retroactivity applies” to the proposition’s juvenile provisions, making those provisions applicable to all cases in which the judgment was not final when the proposition went into effect. (Lara, at p. 309,.)

May 22, 2022

Appellate Court Holds Misdemeanor DUI not eligible for Diversion under Penal Code section 1001.95

by Uthman Law Office

ALICIA URBIETA ISLAS, Petitioner, v. THE SUPERIOR COURT OF SANTA CLARA COUNTY, Respondent; THE PEOPLE, Real Party in Interest. (Cal. Ct. App., May 20, 2022, No. H049445) 2022 WL 1597051, at *1–3

Summary: Islas was charged with misdemeanor driving under the influence of alcohol (DUI). (Veh. Code, § 23152, subds. (a) and (b).) She moved for pretrial diversion under Penal Code section 1001.95, which gives judges discretion to offer diversion to misdemeanor defendants. The trial court denied diversion based on Vehicle Code section 23640, under which DUI defendants are categorically ineligible for diversion. Two appellate courts have published decisions finding misdemeanor DUI defendants similarly situated to petitioner categorically ineligible for Penal Code section 1001.95 diversion. (Grassi v. Superior Court (2021) 73 Cal.App.5th 283 (Grassi); Tan v. Superior Court (2022) 76 Cal.App.5th 130 (Tan).) We agree with the reasoning in those authorities and will therefore deny the petition for writ of mandate.

Issue: Whether misdemeanor DUI defendants are categorically ineligible from Penal Code section 1001.95 diversion by operation of Vehicle Code section 23640.

May 17, 2022

Belief criminal justice system treats African Americans unfairly not grounds for juror exclusion

by Uthman Law Office

People v. Henderson (Cal. Ct. App., May 11, 2022, No. C088883) 2022 WL 1485820, at *1

Summary: Henderson was convicted of one count of second degree murder (Pen. Code, § 187)1 and one count of attempted murder (§§ 664/187) and found true enhancement allegations that defendant personally discharged a firearm causing great bodily injury or death (§ 12022.53, subd. (d)) as to each count. The trial court sentenced defendant to serve an aggregate determinate term of seven years plus an aggregate indeterminate prison term of 65 years to life.

On appeal, Henderson contends: (1) the trial court prejudicially abused its discretion and violated his federal constitutional right to a jury drawn from a representative cross-section of the community by excusing two African-American prospective jurors for cause based on their stated belief that the criminal justice system treats African-Americans unfairly and because they were sympathetic towards him.

May 15, 2022

Resisting a police officer is not a lesser included offense of wanton disregard while fleeing

by Uthman Law Office

THE PEOPLE, Plaintiff and Respondent, v. RODRIGO FUENTES, JR., Defendant and Appellant. (Cal. Ct. App., May 12, 2022, No. E075745) 2022 WL 1498334, at *1

Summary:Fuentes was convicted of both : (1) fleeing a police officer while driving with a willful or wanton disregard for the safety of persons or property (wanton disregard while fleeing) pursuant to Vehicle Code section 2800.2; and (2) resisting a police officer pursuant to Penal Code section 148, subdivision (a)(1).

On appeal, He raised an issue of first impression, contending that resisting a police officer is a lesser included offense of wanton disregard while fleeing. The court of appeal held that resisting a police officer is not a lesser included offense of wanton disregard while fleeing.