General Criminal Defense

May 7, 2023

Public Defender Petitions Supreme Court over Trial Delays

In the Supreme Court of California, Miguel Angel Estrada, Petitioner, v.The Superior Court of the City and County of San Francisco, Respondent; The People, Real Party in Interest. Andrew Kuhaiki, Petitioner, v. The Superior Court of the City and County of San Francisco, Respondent; The People, Real Party in Interest. PETITION FOR REVIEW of the decision of the Court of Appeal for the First Appellate District Division One, Nos. A166474, A166508

Summary: Following the covid-19 lockdown, the San Francisco Superior Court reopened all of its criminal trial courtrooms in June 2021. However, during the thirteen months that followed, it operated these courtrooms at only 56 percent capacity. And in mid-2022, trial courtrooms we’re closed on 176 occasions due to judges’ vacations, which had become the leading cause for closed courtrooms. The superior court’s backlog grew by forty percent since reopening. The superior court held that the covid-19 pandemic justified continuing petitioners’ trials past their statutory deadlines in July and August 2022. On the days of the continuances, multiple courtrooms were closed because of judges’ vacations and routine absences. In denying a petition filed by the San Francisco Public Defender, thd Court of Appeal upheld the good cause finding.

Public Defender Files for Review in Supreme Court

April 2, 2023

Granting a Penal Code section 1473.7 motion to vacate a conviction and withdraw a plea does not require dismissal of the criminal complaint

by Uthman Law Office

People v. Vaca (Cal. Ct. App., Mar. 30, 2023, No. A164953) 2023 WL 2706473, at *1

Summary: Vaca successfully moved under Penal Code section 1473.7 to vacate his conviction and withdraw his no contest plea. He appealed from the trial court’s order denying his motion to dismiss the criminal complaint against him under the same statute. Vaca contends that, after the trial court granted his motion to vacate his conviction under section 1473.7, the statute required dismissal of the underlying criminal complaint filed against him. The Court of Appeal. disagreed and affirmed the court’s order.

Trial court proceedings and motion to vacate the conviction and withdraw the plea under Penal Code Section 1473.7

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.

September 19, 2021

Exclusion of juror for support of BLM was discriminatory

by Uthman Law Office

The People, Plaintiff and Respondent, v. Sheldon Vaughn Silas et al., Defendants and Appellants. (Cal. Ct. App., Sept. 17, 2021, No. A150512) 2021 WL 4236771

Summary: Defendants Sheldon Silas, Reginald Whitley, Lamar Michaels, and Linda Chaney, all of whom are Black, were tried for crimes related to the murders of Christopher Zinn and Brieanna Dow, who were also Black. The prosecutor used peremptory strikes against three Black prospective jurors, including one who expressed support for Black Lives Matter. Defendants brought Batson/Wheeler motions to challenge the exclusion.

T]he use of peremptory challenges to remove prospective jurors on the sole ground of group bias violates the right to trial by jury drawn from a representative cross-section of the community under article I, section 16, of the California Constitution.” (People v. Wheeler (1978) 22 Cal.3d 258, 276-277.)

June 27, 2021

Trial court must give notice and opportunity to be heard before recalling a sentence under 1170(d)

by Uthman Law Office

People v. Williams (Cal. Ct. App., June 17, 2021, No. E074162) 2021 WL 2472953, at *1–4

Summary: A trial court exercising its discretion pursuant to section 1170 of the Penal Code to recall a sentence and enter a reduced term must: (i) give the parties notice and an opportunity to be heard ; and (ii) set forth the reasons for its choice of sentence.

Discretion to strike prior serious felony conviction in 2019

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.

October 18, 2020

Veterans with military related trauma eligible for resentencing if sentenced before January 1,2015

by Uthman Law Office

People v. Valliant (Cal. Ct. App., Oct. 14, 2020, No. G058568) 2020 WL 6054332, at *1–6

Summary: Valliant petitioned pursuant to Penal Code section 1170.91, subdivision (b),1 which authorizes recall of sentencing for military veterans who suffer from military-related trauma and substance abuse, who did not have those factors considered as mitigating factors when they were originally sentenced. The court denied his petition on the basis that section 1170.91, subdivision (b)(1)(B) (subdivision (b)(1)(B)) authorizes resentencing relief only for persons who were sentenced before January 1, 2015. Valliant who was sentenced in March of 2015.

Valliant argued that resentencing relief is available to all veterans whose military-related trauma was not considered at their initial sentencing, without regard to when that sentencing took place. The Court of Appel affirmed the order. Subdivision (b)(1)(B) clearly specifies that its resentencing relief is limited to cases in which “[t]he person was sentenced prior to January 1, 2015.” It further specifies that “[t]his subdivision shall apply retroactively, whether or not the case was final as of January 1, 2015” (italics added). The statutory limitation is unequivocal.

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 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.