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Articles Posted in New Criminal Case Law

People v. Escareno (Cal. Ct. App., May 24, 2021, No. A160209) 2021 WL 2069434, at *1–4

Summary: Escareno pleaded no contest to two felonies, four misdemeanors and an infraction arising from a single incident of driving under the influence of alcohol and without a valid license. The  trial court refused  to dismiss the misdemeanor and infraction counts pursuant to Vehicle Code section 41500 after sentencing him to prison on the felony counts. Escareno appealed and the Court affirmed.

Escareno was charged with felony driving under the influence of alcohol after two prior felony convictions for the same (Veh. Code,1 §§ 23152, subd. (a), 23550.5) (count 1); felony driving with .08 percent or higher blood alcohol after two prior felony convictions for the same (§§ 23152, subd. (b), 23550.5) (count 2); misdemeanor unlawful operation of a vehicle not equipped with a functioning ignition interlock device (§ 23247, subd. (e)) (count 3); misdemeanor driving when privilege suspended for driving under the influence, with priors (§ 14601.2, subd. (a)) (count 4); misdemeanor driving while license suspended or revoked, with priors (§ 14601.5, subd. (a)) (count 5); misdemeanor driving without a valid license (§ 12500, subd. (a)) (count 6); and possession of an open container of alcoholic beverage while driving, an infraction (§ 23222, subd. (a)) (count 7).

People v. Houle (Cal. Ct. App., May 18, 2021, No. A159055) 2021 WL 1975277, at *1–5

Summary: Defendant was sentenced to a stipulated six-year prison term after a plea bargain where he pleaded no contest to one count of unlawfully possessing a concealed dirk or dagger pursuant to Penal Code section 21310;1 admitted having a prior strike within the meaning of section 667, subdivisions (d) and (e) and section 1170.12, subdivisions (b) and (c); and serving two prior prison terms within the meaning of section 667.5, subdivision (b).

At the time he was sentenced, section 667.5, subdivision (b) required a one-year enhancement for each prior prison term served for “any felony.”

People v. Fortman (Cal. Ct. App., May 13, 2021, No. B304567) 2021 WL 1920356, at *1

Summary: A murder conviction that may rest on a theory of vicarious liability later invalidated by Senate Bill No. 1437  must stand if the prosecution proves, beyond a reasonable doubt, that the conviction is valid under a still-viable theory of liability. (Pen. Code, § 1170.95, subds. (d)(3) & (a).)

Issue: Does this require the prosecution to convince the trial court hearing the petition to conclude that it would convict defendant on a still-viable theory, or merely to convince that court that a reasonable jury could convict defendant on a still-viable theory?

People v. Walker (Cal. Ct. App., May 6, 2021, No. A158423) 2021 WL 1811648, at *1–4

Summary: Walker appealed following his convictions for felony evasion of a peace officer (Veh. Code, § 2800.2)1 and other crimes. In the published portion of the opinion, the Court of Appeal rejected Walker’s contention that reckless driving (§ 23103) is a lesser included offense of felony evasion.

Facts: In June 2019, Walker was charged with felony evasion of a peace officer (§ 2800.2); misdemeanor driving under the influence (§ 23152, subd. (f)); and misdemeanor possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)).

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

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.

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.

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.

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.

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.

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