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Articles Posted in New Case Law

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.

Plaintiffs and Respondents, v. CALIFORNIA DEPARTMENT OF MOTOR VEHICLES et al., Defendants and Appellants. (Cal. Ct. App., Apr. 15, 2022, No. B305604) 2022 WL 1125370

DMV Administrative Hearings after DUI Arrests and challenge by California DUI Lawyers

The Department of Motor Vehicles (DMV) conducts administrative hearings to suspend a driver’s license after an arrest for driving under the influence. At these hearings, the DMV hearing officers act both as advocates for the DMV and as triers of fact. The DMV authorizes its managers to change hearing officers’ decisions, or order the hearing officers to change their decisions, without notice to the driver.

Valderas v. Superior Court of San Diego County (Cal. Ct. App., Nov. 30, 2021, No. D078735) 2021 WL 5575569, at *1

Summary: Valderas, facing several felony charges, did not appear at a status conference/trial call on October 20, 2020. It was the second consecutive court appearance that Valderas missed. The trial court issued a bench warrant for Valderas but ordered the warrant to be held until December 8, 2020, the date on which the court had set a readiness conference. The court sent notice to Valderas by mail to his last known address. When Valderas did not appear at the December 8 hearing, the court lifted its hold on the bench warrant.

Valderas seeks a writ of mandamus to recall the December 8 bench warrant. The court denied Valderas’s  relief.

THE PEOPLE, Plaintiff and Respondent, v. JOSE ALEX MENDEZ, Defendant and Appellant. (Cal. Ct. App., Sept. 24, 2021, No. B306301) 2021 WL 4350480

Summary: Jose Alex Mendez appealed  the denial of a recommendation by the secretary of the California Department of Corrections and Rehabilitation (CDCR) to recall his sentence under Penal Code section 1170, subdivision (d)(1). Mendez claimed that the trial court abused its discretion by failing to adequately weigh his postconviction record and by not giving him an opportunity to be heard on  the recommendation by the CDCR to recall his sentence.

The California Code of Regulations requires the secretary to provide a copy of the recommendation letter and Cumulative Case Summary to the prisoner (Cal. Code Regs., tit. 15, § 3076.1, subd. (e)(2)). Here, the secretary also provided copies of the abstract of judgment and minute orders, along with the recommendation letter and Cumulative Case Summary to the Los Angeles County District Attorney’s Office and the Los Angeles County Public Defender’s Office. However, the  trial court did not give  the parties notice or an opportunity to present additional information on the resentencing recommendation. The Court of Appeal reversed because of the substantial liberty interest at stake when the secretary issues a recommendation to recall an inmate’s sentence. The court of appeal  remanded  to the trial court to give notice to the parties, to allow the parties the opportunity to supplement the CDCR’s recommendation with additional relevant information, and to enable the trial court to exercise its discretion based on any briefing the parties might submit.

Based on: San Francisco Chronicle, “A woman is suing S.F. for $50 million over a parking ticket, saying tire chalk is unconstitutional,” Rachel Swan, Sep. 11, 2021

https://www.sfchronicle.com/bayarea/article/A-woman-is-suing-S-F-for-50-million-over-a-16450146.php

ALISON PATRICIA TAYLOR, Plaintiff-Appellant/Cross-Appellee, v. CITY OF SAGINAW, MICHIGAN; TABITHA HOSKINS, Defendants-Appellees/Cross-Appellants. (6th Cir., Aug. 25, 2021, No. 20-1538) 2021 WL 3745345

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.

In re Von Staich (Cal. Ct. App., Oct. 20, 2020, No. A160122) 2020 WL 6144780, at *1–2

Petition claiming San Quentin does not adequately protect against COVID-19 infection

 Ivan Von Staich, incarcerated at San Quentin State Prison,serving a sentence of 17 years to life for a second degree  murder consecutive to a 13-year sentence for the attempted murder.

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.

People v. Brown (2020) 52 Cal.App.5th 899, 904–910 [267 Cal.Rptr.3d 79, 84–89, 52 Cal.App.5th 899, 904–910], review filed (Sept. 8, 2020)

 Brown was convicted by jury of murder and at his sentencing, the trial court resentenced him for a  cocaine possession case. He was sentenced to  consecutive terms and the court  and applied Penal Code section 2933.21 (which prohibits defendants convicted of murder from earning presentence conduct credits) and Brown received no presentence conduct credits. It then awarded 923 days of actual custody credits.

Brown challenges the application of section 2933.2 to the period of custody following his cocaine possession charge and preceding his murder charge. He also challenges the award of actual custody credits. The Court of Appeal  addressed these issues.

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