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People v. Silva (Cal. Ct. App., Jan. 18, 2023, No. F083248) 2023 WL 240015, at *1

Summary:  Silva petitioned the superior court, under former section 1170.95 (now § 1172.6) of the Penal Code, for resentencing on his conviction for second degree murder arising from the murder of Bill James who was stabbed during an altercation with members of the Mongols motorcycle club, including Silva.   The superior court held an evidentiary hearing (§ 1172.6, subd. (d)(1)) and denied the petition after finding petitioner was guilty of murder under an implied malice theory.

On appeal, Silva  argued the order denying the petition must be reversed because Senate Bill No. 1437 eliminated implied malice as a valid theory of murder liability for aiders and abettors and substantial evidence did not support a finding petitioner acted with implied malice. The Court of Appeal held that implied malice remains a valid theory of liability for aiders and abettors to murder and affirmed.

People v. Superior Court of Santa Cruz County (Cal. Ct. App., Jan. 12, 2023, No. H049188) 2023 WL 167078, at *1–2

 Summary: Is a suspected inmate “kite”—a written message sent in violation of jail rules— covered by the attorney-client privilege when it is contained in an envelope sent by an inmate to his attorney?  Because the inmate here did not establish the kites are a confidential communication to his attorney, the attorney-client privilege does not apply. The Court issued a peremptory writ of mandate requiring the Superior Court to vacate its order finding otherwise.


Box v. Superior Court of San Diego County (Cal. Ct. App., Dec. 30, 2022, No. D080573) 2022 WL 17999610

 Summary: Issue: The issue decided was: Are a prosecutor’s jury selection notes core work product shielded from disclosure in postconviction proceedings that raise a Batson claim?

The Court of AppeL held that where  a prima facie case of racial bias under Batson/Wheeler has been made, a defendant is entitled to discover the prosecution’s jury selection notes under section 1054.9. Those notes are not categorically shielded from discovery by the absolute work product privilege. (§ 1054.6; see Code Civ. Proc., § 2018.030, subd. (a).) When the  People maintain that those notes reflect the prosecution’s impressions, conclusions, opinions, or legal research and theories about case strategy independent of conclusions or impressions about prospective jurors, they bear the burden to make that foundational proffer and seek appropriate redactions from the trial court.

People v. Ross (Cal. Ct. App., Dec. 28, 2022, No. A163242) 2022 WL 17974351, at *1

Summary: Ross appealed a conviction for battery on a non-confined person by a prisoner (Pen. Code, § 4501.5) and finding true two prior “strike” convictions (§ 667, subds. (b)–(i)). On appeal, he argues: (1) his attorney violated his Sixth Amendment rights by conceding his guilt; and (2) the matter should be remanded for resentencing due to Senate Bill No. 567. The Court rejected the  Sixth Amendment challenge. The Court agreed that a remand for resentencing is required due to postsentencing statutory amendments made by Senate Bill No. 567.

Factual and Procedural Background

People v. White (Cal. Ct. App., Dec. 27, 2022, No. C095640) 2022 WL 17958728, at *1

Summary: On May 2006, 25-year old White, while drunk and speeding, struck a car stopped on the shoulder of the highway with its hazard lights on, killing the driver and injuring two others. A jury found White guilty of second degree murder, gross vehicular manslaughter while intoxicated, driving under the influence causing injury, and driving with a blood alcohol level of .08 percent or higher causing injury, with enhancements for causing and inflicting great bodily injury on multiple victims. The trial court sentenced  White to an indeterminate term of 15 years to life for second degree murder, and a consecutive determinate middle term of two years for driving under the influence with injury.

In 2020, White requested and received a hearing pursuant to People v. Franklin (2016) 63 Cal.4th 261, 202 Cal.Rptr.3d 496, 370 P.3d 1053 (Franklin) to make a record of information relevant to an eventual youthful offender parole hearing. He filed a motion to vacate his sentence and remand for resentencing under In re Estrada (1965) 63 Cal.2d 740 (Estrada) based on amendments to Penal Code section 654 following the passage of Assembly Bill No. 518. The trial court denied the motion.

THE PEOPLE, Plaintiff and Respondent, v. ALIJONDRO JONES, Defendant and Appellant. (Cal. Ct. App., Dec. 23, 2022, No. A162634) 2022 WL 17884050, at *1

Summary: Jones appealed from an order denying his motion for resentencing under Penal Code section 1170.95 after he was convicted of first degree murder under a felony-murder theory. The court found him ineligible for relief because he was a major participant who acted with reckless indifference to human life. On appeal, Jones contends (1) the trial court was precluded from relying on evidence that he was the actual shooter because the jury found not true the allegations that he personally used a firearm; (2) insufficient evidence supports the trial court’s determination that he was a major participant who acted with reckless indifference to human life; (3) the trial court erred in not considering his youth as a factor in making that determination; and (4) defense counsel provided ineffective assistance by not raising the “collateral estoppel” argument and by not raising the issue of Jones’s youth after the court’s ruling. In a supplemental opening brief, Jones contends the order must be reversed due to a recent decision in this appellate district, People v. Cooper(2022) 77 Cal.App.5th 393 (Cooper).

Because the trial court’s ruling occurred before the decision in In re Moore (2021) 68 Cal.App.5th 434 (Moore), it cannot be presumed from the record that the trial court considered evidence of Jones’s youth, which Mooreheld to be “a relevant factor” in deciding whether a defendant was a major participant who acted with reckless indifference to human life. (Id. at p. 454, italics added.) The Court of Appeal remanded for the court’s consideration of all relevant factors consistent with prevailing law.

THE PEOPLE, Plaintiff and Respondent, v. THOMAS WHITMILL, Defendant and Appellant. (Cal. Ct. App., Dec. 23, 2022, No. B318582) 2022 WL 17883593 

 Summary: Sixty-one-year-old Whitmill appealed the denial of his pretrial motion for mental health diversion of his criminal prosecution. He argued that because he is an honorably discharged veteran who suffers from a severe mental disorder, he meets the eligibility requirements for pretrial mental health diversion under Penal Code section 1001.36.

The Court of Appeal ruled that the trial court erred when it denied Whitmill’s motion and remanded to the trial court with instructions to grant the motion for diversion.

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