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San Francisco Criminal Lawyer Blog

May 1, 2021

Court abused its discretion in denying mental health diversion

by Uthman Law Office

The People, Plaintiff and Respondent, V. Christopher Eric Williams, Defendant And Appellant. (Cal. Ct. App., Apr. 30, 2021, No. A160530) 2021 WL 1712162, At *1–4

Summary: Christopher Williams pled no contest to one count of felony stalking (Pen. Code, § 646.9, subd. (a)1). Shortly after Williams’s plea, the Legislature passed an omnibus budget bill that took immediate effect (Assem. Bill No. 1810). The bill enacted Penal Code section 1001.36, which authorizes trial courts to grant pretrial diversion for certain defendants suffering from mental health disorders. The court denied mental health diversion and Williams was placed on probation for three years. Williams appealed arguing that the court abused its discretion in finding him unsuitable for mental health diversion because he does not pose an unreasonable risk to public safety. The Court of Appeal ruled that the trial court abused its discretion in denying his request for mental health diversion and reversed the order.

Mental Health Diversion

April 27, 2021

LWOP offenders may be denied Youthful Offender Parole Hearing

by Uthman Law Office

In re Murray (Cal. Ct. App., Apr. 19, 2021, No. A161687) 2021 WL 1526490, at *1–5

Summary Paul Murray was sentenced to life in prison without possibility of parole for a first degree special circumstance murder he committed when he was 22 years old. Murray sought a hearing pursuant to People v. Franklin (2016) 63 Cal.4th 261, because he stated was eligible for a Penal Code section 3051 youth offender parole hearing. The trial court denied his request because section 3051 expressly exclude LWOP offenders who were 18 years old or older at the time of their offense. Murray filed a habeas petition and argued that section 3051 violates his constitutional right to equal protection by affording juvenile LWOP offenders a youth offender parole hearing but denying such a hearing to youthful LWOP offenders. The Court of Appeal concluded that there is a rational basis for distinguishing between juvenile and youthful LWOP offenders in this context, and thus deny his petition.

Murray’s equal protection claim

April 25, 2021

Felony-murder special-circumstance finding does not bar section 1170.95 relief.

by Uthman Law Office

People v. Secrease (Cal. Ct. App., Apr. 19, 2021, No. A158342) 2021 WL 1538008, at *1

Summary:In 1998, a jury convicted Secrease of first degree murder and carjacking, finding true a special circumstance charge under section 190.2, subdivision (a)(17)(L) that the murder was committed during a carjacking. (§ 215, subd. (a).) He received a sentence of life in prison without the possibility of parole.

Secrease filed a verified section 1170.95 resentencing petition. The district attorney responded by filing a motion to deny the petition for failure to make a prima facie showing of eligibility for section 1170.95 resentencing relief, and Secrease filed a reply. The court denied the petition without issuing an order to show cause. Secrease appealed and the Court of Appealas decided whether a felony-murder special-circumstance finding by the jury that convicted Secrease in 1998 bars him from pleading a prima facie case for section 1170.95 resentencing relief as a matter of law. The Court agreed with the opinions that have held a prior felony-murder special-circumstance finding does not bar section 1170.95 relief.

April 18, 2021

Federal Court finds systemic violations in CDCR’s misuse of confidential information

by Uthman Law Office

Todd Ashker v. Gavin Newsom, United States District Court For The Northern District Of California, Case 4:09-cv-05796-CW, Filed 04/09/21

Background:

Judge Claudia Wilken extended a settlement agreement in a class action for violations of 42 U.S.C. § 1983 brought by plaintiffs Todd Ashker and Danny Troxell, who had lived in solitary confinement in Pelican Bay’s SHU for over two decades. On December 9, 2009, they filed a pro se lawsuit challenging the conditions of their confinement charging CDCR officials with violating their First, Fifth, Eighth, and Fourteenth Amendment rights.

April 11, 2021

Recording a phone call without the other party’s consent is a crime (Penal Code section 632.7(a)

by Uthman Law Office

Smith v. LoanMe, Inc. (Cal., Apr. 1, 2021, No. S260391) 2021 WL 1217873, at *1

Summary: Under Penal Code section 632.7(a), it is a crime when a person “without the consent of all parties to a communication, intercepts or receives and intentionally records, or assists in the interception or reception and intentional recordation of, a communication transmitted between” a cellular or cordless telephone and another telephone.

A violation of section 632.7 also can be pursued in a civil lawsuit.

April 4, 2021

A Car Accident Can Result in a Conviction for Assault with a Deadly Weapon

by Uthman Law Office

People v. Brugman (Cal. Ct. App., Mar. 30, 2021, No. D076658) 2021 WL 1186143

Summary: Brugman was convicted of assault with a deadly weapon was based on his act crashing his vehicle into the car being driven by His former girlfriend as she tried to enter the driveway to her mother’s apartment complex. The jury was required to find that Brugman was “aware of the facts that would lead a reasonable person to realize that a battery would directly, naturally and probably result from his conduct.” (Williams, supra, 26 Cal.4th at p. 788, 111 Cal.Rptr.2d 114, 29 P.3d 197.) The jury was instructed with CALCRIM No. 875 that to find Brugman’s vehicle constituted a deadly weapon, it was required to find that Brugman’s vehicle was “used in such a way that it [was] capable of causing and likely to cause death or great bodily injury.” (See People v. Perez (2018) 4 Cal.5th 1055, 1065, 232 Cal.Rptr.3d 51, 416 P.3d 42 [“a ‘deadly weapon’ under section 245, subdivision (a)(1) is ‘ “any object, instrument, or weapon which is used in such a manner as to be capable of producing and likely to produce, death or great bodily injury,” ’ ” and “cases have recognized a vehicle as a deadly weapon based on the manner it was used”].)

The Court of Appeal fling conviction for assault with a deadly weapon is supported by substantial evidence.

March 27, 2021

Resisting arrest requires that police are acting lawfully

by Uthman Law Office

People v. Southard (Cal. Ct. App., Mar. 24, 2021, No. A157236) 2021 WL 1114283, at *1

Summary: John Wesley Southard was involved in two traffic stops in December 2018 and was charged with seven counts of obstructing a peace officer and forcible resistance of an officer—charges that require the People to prove the officers were acting lawfully—and one misdemeanor count of possession of methamphetamine. Southward was convicted on all charges and was sentenced to five years four months in prison.

On appeal, Southard argued that the trial court: (1) gave a special instruction based on language from an appellate opinion that acted to remove the lawful performance element of the resisting charges; (2) gave CALCRIM No. 250 that acted to remove the knowledge element of the charged offenses.The Court of Appeal agreed with these arguments and concluded the errors were prejudicial. The Court reversed the convictions.

March 25, 2021

California Supreme Court Affirms Right To Affordable Bail

by Uthman Law Office

In The Supreme Court Of California

In Re Kenneth Humphrey On Habeas Corpus; S247278First Appellate District, Division Two A152056;San Francisco City And County Superior Court 17007715; March 25, 2021

In an unanimous decision, the California Supreme Court held that:“No person should lose the right to liberty simply because that person can’t afford to post bail.” “The median bail amount in California ($50,000) is more than five times the median amount in the rest of the nation (less than $10,000).”

March 21, 2021

Restitution for civil attorney fees paid by a victim may be ordered in a criminal case

by Uthman Law Office

People v. Marrero (2021) 60 Cal.App.5th 896

Summary: Armando Milan Marrero pleaded guilty to driving under the influence of alcohol and causing bodily injury to another person (Veh. Code, § 23153, subd. (a)). The trial court suspended imposition of sentence for five years and granted formal probation. Two victims retained an attorney and paid him $375,000 in accordance with their contingency fee agreement, after a settlement was reached.

In Marrero’s criminal case, the prosecutor requested that the victims be awarded $375,000 in restitution based on the actual fee paid to the attorney. The court ordered restitution in the amount of $358,047.79, covering $350,000 in attorney fees and approximately $8,000 in travel expenses.

March 14, 2021

US Supreme Court: Non Permanent Residents Must Show They Were Not Convicted Of A Crime Of Moral Turpitude in Immigration Removal Proceedings

by Uthman Law Office

Pereida v. Wilkinson (U.S., Mar. 4, 2021, No. 19-438) 2021 WL 816351, at *1–2

Summary:Immigration officials initiated removal proceedings against Clemente Avelino Pereida for entering and remaining in the country unlawfully. Mr. Pereida sought to establish his eligibility for cancellation of removal under the Immigration and Nationality Act (INA). 8 U.S.C. §§ 1229a(c)(4), 1229b(b)(1). Nonpermanent residents must prove that they have not been convicted of specified criminal offenses. § 1229b(b)(1)(C) for eligibility. Mr. Pereida was convicted of a crime under Nebraska state law. See Neb. Rev. Stat. § 28–608 (2008). Analyzing whether Mr. Pereida’s conviction constituted a “crime involving moral turpitude” that would bar his eligibility for cancellation of removal, §§ 1182(a)(2)(A)(i)(I), 1227(a)(2)(A)(i), the immigration judge found that the Nebraska statute stated several separate crimes, some of which involved moral turpitude and one—carrying on a business without a required license—which did not. Nebraska had charged Mr. Pereida with using a fraudulent social security card to obtain employment, so the immigration judge concluded that Mr. Pereida’s conviction was likely not for the crime of operating an unlicensed business, and the conviction likely constituted a crime involving moral turpitude. The Board of Immigration Appeals and the Eighth Circuit concluded that the record did not establish which crime Mr. Pereida stood convicted of violating. Mr. Pereida bore the burden of proving his eligibility for cancellation of removal and the ambiguity in the record meant he had not carried that burden and he was ineligible for discretionary relief.

Holding: Under the INA, certain nonpermanent residents seeking to cancel a lawful removal order bear the burden of showing they have not been convicted of a disqualifying offense. A nonpermanent resident has not carried that burden when the record shows he has been convicted under a statute listing multiple offenses, some of which are disqualifying, and the record is ambiguous as to which crime formed the basis of his conviction.