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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 PEOPLE, Plaintiff and Respondent, v. MATTHEW TIMOTHY O’DAY, Defendant and Appellant. (Cal. Ct. App., Nov. 18, 2022, No.A162303) 2022 WL 17073545, at *1

Summary: O’Day with murder and assault with a deadly weapon but the charges were dismissed at the conclusion of a preliminary hearing. More than 12 years later, O’Day petitioned for a finding of factual innocence. (Pen. Code, § 851.8.) The trial court denied the petition both because it was untimely without good cause and O’Day failed to satisfy his stringent burden of establishing his factual innocence. The Court of Appeal affirm concluding that the trial court did not abuse its discretion in determining the petition was untimely and unsupported by a showing of good cause.

Facts:  in 2020, O’Day petitioned for a finding of factual innocence more than 12 years after charges weee dismissed. He  acknowledged the petition was filed after the expiration of the two-year deadline in section 851.8. But he argued there was good cause for the delay because he was unaware, until 2018, he could seek relief. O’Day explained in a supporting declaration that upon his release from custody, his privately retained attorney said the prosecution could refile the charges as “there was no statute of limitations for the crime of murder.” He advised O’Day to stay in California and notify him if he planned to leave the state. O’Day and counsel also discussed what could be done about his arrest record; counsel said O’Day’s employers could not “discriminate” against him because of the arrest, but counsel did not mention a petition for factual innocence. Had O’Day known of that remedy, he would have asked counsel to file a petition “immediately.”

People v. Monroe (Cal. Ct. App., Nov. 16, 2022, No. A164777) 2022 WL 16957169, at *1

Summary: In 2005, Monroe was sentenced to a 31 year four month prison term, which term included seven enhancements: three firearm enhancements totaling 12 years eight months, three one-year prior prison term enhancements, and a five-year prior serious felony enhancement. In 2020, Monroe filed a petition for relief under 2017 legislation granting the trial court discretion to strike the firearm enhancements. In 2021 legislation provided for resentencing to strike the one-year prior term enhancements, Monroe filed a second petition seeking relief under that statute. The trial court resentenced Monroe and struck the three one-year enhancements, but concluded it was without jurisdiction to strike the firearm enhancements. Monroe appealed claiming that he is also eligible for relief under 2018 legislation granting the trial court discretion to strike the five-year prior serious felony enhancement. The Court of Appeal concluded that Monroe is eligible for relief for both the firearm enhancements and the prior serious felony enhancement, and reversed and remanded for resentencing.

Senate Bill No. 483

THE PEOPLE, Plaintiff and Respondent, v. MARIO GARCIA, Defendant and Appellant. (Cal. Ct. App., Nov. 10, 2022, No. A163046) 2022 WL 16848390, at *1–5

Summary:  Garcia was sentenced to 24 years in prison after a jury found him guilty of assault on a peace officer with a semiautomatic firearm (Pen. Code, § 245, subd. (d)(2))1 and other counts. In this  appeal, Garcia contends he is entitled to resentencing under section 1170, subdivision (b), as amended by Senate Bill No. 567 (Senate Bill 567). He also argues that the trial court abused its discretion in denying his request for a continuance of the sentencing hearing so that he could develop facts to support a motion for discovery under the California Racial Justice Act of 2020 (CRJA).

The Court of Appeal held that Garcia was entitled to a reasonable continuance to prepare his motion for discovery under the CRJA and entitled to resentencing under section 1170, subdivision (b). The Court  reversed the judgment and remand for further proceedings.

People v. Machado (Cal. Ct. App., Oct. 31, 2022, No. B311023) 2022 WL 16548693

Summary: Machado,  serving sentence for murder petitioned under Penal Code section 1172.6 which limited the  application of felony-murder doctrine. Machado and the prosecution stipulated that he was eligible to have the conviction vacated and to be resentenced. The Superior Court denied the petition. Machado appealed.

Holdings: The Court of Appeal held that: as a matter of first impression, a trial court is not required to accept parties’ stipulation that a prisoner is eligible for resentencing for murder, and the trial court did not violate constitutional separation of powers by declining to accept parties’ stipulation.

In re Foster (Cal. Ct. App., Nov. 1, 2022, No. A160713) 2022 WL 16570551, at *1

Summary: Foster, a state prison inmate, was sentenced in 1998 to an indeterminate term of 23 years to life. After the Board of Parole Hearings (the Board) found him suitable for parole in 2019, the Governor referred the decision to the Board for en banc reconsideration under Penal Code section 3041.1. The Board  ordered a rescission hearing to determine whether the grant of parole was improvident, based on the concerns raised by the Governor.

Under the regulations governing parole rescission hearings (and as he had been informed in writing by the Board), Foster requested the presence of evidentiary witnesses at the rescission hearing, including the author of the Comprehensive Risk Assessment that the Governor quoted from and relied on in his referral letter. The  Board denied Foster’s request for witnesses, the panel rescinded the grant of parole. Foster petitioned for a writ of habeas corpus, arguing that the Board improperly denied his request to subpoena witnesses for the rescission hearing

THE PEOPLE, Plaintiff and Respondent, v. CYNTHIA M. VARGAS, Defendant and Appellant. (Cal. Ct. App., Oct. 28, 2022, No. B313853) 2022 WL 15635424, at *2–3

Summary: Vargas was convicted of first degree murder (§ 187, subd. (a)) with use of a firearm (§ 12022.53, subds. (d), (e)(1)) and the jury also found that the offense was committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)).

Following the California Supreme Court’s decision in People v. Chiu (2014) 59 Cal.4th 155, Vargas filed a petition for writ of habeas corpus in the superior court on the ground that she could not be convicted of murder in the first degree under the natural and probable consequences doctrine. The People then agreed to accept resentencing for second degree murder. The superior court vacated Vargas’s first degree murder sentence and imposed a term of 40 years to life, consisting of 15 years to life for second degree murder plus 25 years to life for the firearm enhancement.

People v. Duran (Cal. Ct. App., Oct. 27, 2022, No. B317640) 2022 WL 15121275, at *1

Summary: Duran was convicted of second degree murder in 1984 for a gang-related stabbing petitioned for relief under Penal Code section 1172.6 (former section 1170.95).  During the  evidentiary hearing, the prosecution introduced statements that Duran made to a psychologist in 2013 during a parole risk assessment interview.  Duran argued that admitting his prior statements was error because those statements are (1) inadmissible under a judicially crafted “use immunity” doctrine, and (2) involuntary under the due process clause. Three courts have rejected the first argument. (See People v. Myles (2021) 69 Cal.App.5th 688, 704-706. (Myles); People v. Anderson (2022) 78 Cal.App.5th 81. (Anderson); People v. Mitchell (2022) 81 Cal.App.5th 575, 580-581. (Mitchell).) We join these courts, and publish because we walk a different path to get there. The Court of Appeal agreed with those courts and concluded that the Duran’s statement was in not involuntary. The Court of Appeal affirmed the trial court’s denial of relief.

 Section 1172.6 Petition

People v. Vizcarra (Cal. Ct. App., Oct. 19, 2022, No. D078869) 2022 WL 10869162, at *1

Summary:Vizcarra was convicted of the second degree murder he committed with three co-defendants.

The district attorney charged Vizcarra with  murder and arson of an inhabited structure and argued alternative theories of murder liability:  (1) he was liable for murder as a direct aider and abettor; and (2) he was liable for murder under the natural and probable consequences doctrine because he aided and abetted the commission of a target crime (assault by a deadly weapon or by means of force likely to produce great bodily injury) and murder was the natural and probable consequence of the target crime. Vizcarra was not prosecuted for murder under a felony-murder theory of liability.

People v. Hardin (Cal. Ct. App., Oct. 18, 2022, No. B315434) 2022 WL 10272623, at *1

Youth Offender Parol Hearings and Franklin Hearings

An individual convicted of a crime with a sentence of life without the possibility of parole before he was 18 years old is eligible for release on parole at a youth offender parole hearing at the beginning of the 25th year of incarceration. (Pen. Code, § 3051, subd. (b)(4).)

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