Articles Posted in New Criminal Case Law

People v. Maldonado (Cal. Ct. App., Dec. 8, 2022, No. A161817) 2022 WL 17494961, at *1

Summary: Maldonado appealed from the trial court’s denial of his petition for resentencing pursuant to Penal Code section 1172.6 (former section 1170.95). In 2013, Maldonado was convicted of first degree murder and the jury was not instructed on the natural and probable consequences and felony murder doctrines.  Maldonado argued that  the jury  could have imputed malice to him based solely on his participation in a crime, relying on the jury instructions for aiding and abetting, implied malice, and lying-in-wait murder, and on the analysis in People v. Langi (2022) 73 Cal.App.5th 972  (Langi). The Court of Appeal agreed that Maldonado established a prima facie case for resentencing relief, and reversed and remanded for the trial court to issue an order to show cause.

Background: Maldonado was charged with first degree murder (§ 187, subd. (a)), with a special circumstance allegation that the murder was committed by means of lying in wait (§ 190.2, subd. (a)(15)). The jury was instructed on two theories of first degree murder: the murder was willful, deliberate and premeditated; and the murder was committed by lying in wait. The jury was also instructed on direct aiding and abetting. (See CALCRIM No. 401.) The jury was not instructed on felony murder or the natural and probable consequences doctrine.

People v. E.M. (Cal. Ct. App., Dec. 6, 2022, No. H049467) 2022 WL 17423592, at *1

Summary: In December 2019, the Secretary of the California Department of Corrections and Rehabilitation (the Secretary) issued a letter to the trial court recommending that it recall E.M.’s sentence of over 79 years and resentence him based on recent ameliorative legislative changes in the sentencing law. The trial court denied recall on the ground that the legislative changes did not apply to E.M.’s case because his sentence was final.

E.M. appealed the trial court’s denial of recall,  arguing that recent changes in the sentencing law do not apply to his case. After briefing on the case, the Secretary issued a new letter to the trial court rescinding its recommendation of recall and resentencing. The Attorney General then argued that this appeal is moot because the Secretary’s letter of rescission eliminated the trial court’s jurisdiction to recall the sentence on remand.

Claypool v. Superior Court of Sacramento County (Cal. Ct. App., Dec. 6, 2022, No. C096620) 2022 WL 17422679, at *1

Summary:  Claypool was charged with possession of a firearm by a felon, unlawful possession of ammunition by a felon, unauthorized alteration of a firearm, and carrying a loaded firearm in a vehicle, along with an enhancement for a prior strike pursuant to the three strikes law. The evidence was found in a locked glove box in Claypool’s car during a parole search of a back seat passenger. Claypool, who was both the driver and owner of the car, was neither on searchable probation nor parole at the time. Police used a key to open the glove box and found a gun containing ammunition.

Claypool brought a petition for writ of mandate or prohibition to challenge the denial of a motion to suppress evidence and dismiss the charges.

People v. Ramirez (Cal., Dec. 5, 2022, No. S262010) 2022 WL 17410568, at *1

Summary: Although a criminal defendant has a constitutional right to be present at trial, once trial has commenced in the defendant’s presence in a noncapital felony case, the trial court may continue the trial in the defendant’s absence under Penal Code section 1043, subdivision (b)(2) provided that the absence is voluntary. The California Supreme Court granted review  to decide whether the Court of Appeal erred when it upheld the trial court’s finding that defendant Ramirez was voluntarily absent under section 1043(b)(2).

Ramirez failed to appear in court on the second day of trial. Earlier that morning, emergency medical personnel and police officers had been dispatched to defendant’s home after a possible drug overdose was reported. According to a police officer who responded to the home, Ramirez was taken by his mother to a hospital rather than to court. The trial court ruled that defendant was voluntarily absent under the circumstances, and it continued trial without him in accordance with section 1043(b)(2).

THE PEOPLE, Plaintiff and Respondent, v. ISMAEL AVALOS, Defendant and Appellant. (Cal. Ct. App., Nov. 4, 2022, No. G059107) 2022 WL 17401172

Summary:  Avalos,  an 18-year-old high school student, was arrested on a murder charge and questioned him in an interrogation room at a police station. During the interview, a forensic technician removed his shirt, pants, socks, and shoes. The technician gave him a paper gown to wear. After about five hours of questioning by police, Avalos said, “I wanna talk to a lawyer.” After further dialog, a detective said, “I respect your decision that you wanna talk to a lawyer, but if for some reason you want to change your mind and you wanna talk to me, you can, just ask for me. I don’t care if it’s 2:00, 3:00 in the morning I’ll come back. Okay? Because I care about you getting your story the right way out. Okay?”

Avalos spent the night in a holding cell and then one of the jailers he wanted to speak to the detectives again. Avalos was brought back to the same interrogation room for a second interview, wearing the same paper gown from the day before. Avalos asked, “You guys don’t have any socks do you?” An officer asked him if he was cold, Avalos said that it had been colder where he was being held. Avalos asked, “Whatever I tell my lawyer, he’s going to tell you the same thing, right?” Avalos waived Miranda rights, and  admitted shooting the murder victim, stating: “I, I self-defended myself, you know?”

People v. Braggs (Cal. Ct. App., Nov. 30, 2022, No. H049710) 2022 WL 17335172, at *1

Summary: In 2014, Braggs pleaded no contest to second degree robbery (Pen. Code, §§ 211, 212.5, subd. (c))1 and second degree burglary (§§ 459, 460, subd. (b)). Braggs admitted that he had suffered two prior strike convictions (§§ 667, subds. (b)-(i), 1170.12), that he had suffered one prior serious felony conviction (§ 667, former subd. (a)), and that he had served two prior prison terms (§ 667.5, former subd. (b)). Brags was sentenced to 13 years in prison.

In 2020, the Secretary of the Department of Corrections and Rehabilitation (CDCR) recommended that Braggs’ sentence be recalled and that he be resentenced pursuant to then section 1170, subdivision (d). The recommendation by the Secretary of the CDCR (Secretary) was based on a change in the law that gives a trial court the discretion to strike a prior serious felony enhancement (see §§ 667, subd. (a)(1), 1385). The court in defendant’s case ultimately granted the request to recall his sentence and to resentence him. The resentencing hearing was held on January 10, 2022. Due to another change in the law, the prior prison term enhancements were no longer applicable to defendant. The court did not impose those enhancements, but it imposed the same sentence as the original sentence, including the five-year prior serious felony enhancement, which resulted in a total term of 11 years. The court awarded custody credits, ordered a stayed restitution fine and a suspended parole revocation restitution fine, and advised defendant of a three-year parole period.

In re Kowalczyk (Cal. Ct. App., Nov. 21, 2022, No. A162977) 2022 WL 17098702, at *1

Summary: Kowalczyk filed a petition for writ of habeas corpus challenging the trial court’s decision denying him bail. The California Supreme Court granted review and transferred the matter back to the Court of Appeal  with directions to “issue an opinion that addresses which constitutional provision governs the denial of bail in noncapital cases—article I, section 12, subdivisions (b) and (c), or article I, section 28, subdivision (f)(3), of the California Constitution — or, in the alternative, whether these provisions can be reconciled.”

The Court concluded that the bail provisions of article I, section 28, subdivision (f)(3) can be reconciled with those of article I, section 12 (section 12 and section 28(f)(3)) and that both sections govern bail determinations in noncapital cases. Section 12 ’s general right to bail in noncapital cases remains intact, and full effect must be given to section 28(f)(3)’s mandate that the rights of crime victims be respected in all bail and OR release determinations. Section 12 does not guarantee an unqualified right to pretrial release or that it necessarily requires courts to set bail at an amount a defendant can afford.

People v. Henderson (Cal., Nov. 17, 2022, No. S265172) 2022 WL 16985422, at *1

Summary: May a court impose concurrent sentences in cases falling under the habitual criminal, or “Three Strikes,” sentencing scheme? People v. Hendrix (1997) 16 Cal.4th 508, 512 (Hendrix) observed that scheme required imposition of consecutive sentences for multiple current felonies that were not “committed on the same occasion” or did not “aris[e] from the same set of operative facts.” (Pen. Code, §§ 667, subd. (c)(6); 1170.12, subd. (a)(6).) It clarified, however, that a trial court retained discretion to impose concurrent terms for those felonies that were committed on the same occasion or arose from the same set of operative facts, even if the felonies qualified as serious or violent. The question here is whether Proposition 36, the Three Strikes Reform Act of 2012 (Proposition 36, the Reform Act, or the Act), changed the law so that sentencing courts no longer have that discretion, abrogating the Hendrix rule. The California Supreme Court reversed the Court of Appeal’s decision and concluded the Reform Act did not have that effect. Following Proposition 36, the court retains its Hendrix concurrent sentencing discretion, and the total sentence imposed for multiple current counts of serious or violent felonies must be ordered to run consecutively to the term imposed for offenses that do not qualify as serious or violent felonies.

Facts: Henderson was convicted of assault by means of force likely to produce great bodily injury, possession of a firearm by a felon, and two counts of assault  with a semiautomatic firearm.The information also alleged he had four prior strike and two prior serious felony convictions, and had served four prior prison terms. The court found the prior conviction allegations to be true. The  trial court struck all of the prior conviction allegations except for one prior strike and one prior serious felony conviction. It sentenced Henderson as a second striker (see Pen. Code, §§ 667, subd. (e)(1); 1170.12, subd. (c)(1)), imposing the upper term of nine years for one semiautomatic firearm assault, doubled to 18 years; a consecutive four-year term for the second assault (one third the midterm doubled); and five years for the prior serious felony conviction. The total term imposed was 27 years. With respect to consecutive sentencing for the assaults, the court said, “[T]he Three Strikes law requires that on serious or violent felonies, two or more, that they be sentenced consecutively.”

THE PEOPLE, Plaintiff and Respondent, v. MATTHEW TIMOTHY O’DAY, Defendant and Appellant. (Cal. Ct. App., Nov. 18, 2022, No.A162303) 2022 WL 17073545, at *1

Summary: O’Day with murder and assault with a deadly weapon but the charges were dismissed at the conclusion of a preliminary hearing. More than 12 years later, O’Day petitioned for a finding of factual innocence. (Pen. Code, § 851.8.) The trial court denied the petition both because it was untimely without good cause and O’Day failed to satisfy his stringent burden of establishing his factual innocence. The Court of Appeal affirm concluding that the trial court did not abuse its discretion in determining the petition was untimely and unsupported by a showing of good cause.

Facts:  in 2020, O’Day petitioned for a finding of factual innocence more than 12 years after charges weee dismissed. He  acknowledged the petition was filed after the expiration of the two-year deadline in section 851.8. But he argued there was good cause for the delay because he was unaware, until 2018, he could seek relief. O’Day explained in a supporting declaration that upon his release from custody, his privately retained attorney said the prosecution could refile the charges as “there was no statute of limitations for the crime of murder.” He advised O’Day to stay in California and notify him if he planned to leave the state. O’Day and counsel also discussed what could be done about his arrest record; counsel said O’Day’s employers could not “discriminate” against him because of the arrest, but counsel did not mention a petition for factual innocence. Had O’Day known of that remedy, he would have asked counsel to file a petition “immediately.”

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