New Criminal Case Law

November 15, 2020

Grand theft conviction reduced to petty theft based on fair market value of merchandise

People v. Grant (Cal. Ct. App., Nov. 12, 2020, No. D076576) 2020 WL 6608321, at *1

Summary: Kenneth Grant stole merchandise from a Wilsons Leather outlet store where everything is sold at a discount, determined by applying varying discount percentages to a “comparable value” the store displays on tags attached to each product. At trial, the prosecution introduced evidence showing that the cumulative comparable values of the stolen merchandise exceeded the $950 felony theft threshold. There was no evidence establishing that the comparable values represented the merchandise’s actual fair market values, and the only evidence of actual sales price was for a few of the stolen products (totaling about $265). The jury found the value of the stolen merchandise exceeded $950, and convicted Grant of grand theft (Pen. Code, § 487, subd. (a))1 and burglary (§ 459). The trial court sentenced Grant to three years in local custody.

On appeal, Grant contends his grand theft conviction must be reduced to petty theft, and his burglary conviction must be reversed, because (1) the trial court erroneously instructed the jury regarding the definition of fair market value; (2) the trial court failed to instruct the jury regarding the distinction between burglary and misdemeanor shoplifting; and (3) substantial evidence does not support the finding that the value of the stolen merchandise exceeded $950.

November 11, 2020

Court Of Appeal Finds Mentally Ill Defendant Received Ineffective Assistance of Counsel Comments on over-incarceration of mentally ilL

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People V. O’Hearn (Cal. Ct. App., Nov. 9, 2020, No. A158676) 2020 WL 6556592, at *1–2

Patrick Sean O’Hearn appealed from the denial of his motion to vacate a guilty plea to charges of making a criminal threat. The Court of Appeal held that O’Hearn received ineffective assistance of counsel in the in his plea bargain and reversed and and remanded with directions for the superior court to conduct a trial on the charges.

The Underlying Offense

November 8, 2020

Penal Code 1170.94 did not abolish implied malice for a DUI Murder

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People v. Roldan (Cal. Ct. App., Oct. 30, 2020, No. B298570) 2020 WL 6375578, at *1

Summary: Marlon Roldan was convicted of second degree murder under an implied malice theory for killing a person while driving under the influence of alcohol (DUI). He filed a petition in the superior court for resentencing under Penal Code section 1170.95. He also requested appointment of counsel. The court found he was ineligible for relief as a matter of law because he was convicted under a theory of direct rather than vicarious liability. The court denied the petition without appointing counsel or holding an evidentiary hearing.

Roldan appealed claiming that Penal Code section 1170.95 should apply to his conviction for DUI murder, and he should have been appointed counsel to assist with his petition. The Court of appeal disagreed and affirmed the tail court’s ruling.

October 4, 2020

Liberty interest in recommendation for re-sentencing under PC 1170(d) gives right to present information to court

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People v. McCallum (Cal. Ct. App., Sept. 30, 2020, No. B301267) 2020 WL 5810212, at *1

Resentencing under Penal Code 1170(d)(1)

Penal Code section 1170, subdivision (d)(1) authorizes the trial court to modify a defendant’s sentence upon a recommendation from the Secretary of the Department of Corrections and Rehabilitation (Department), the Board of Parole Hearings, or the district attorney to “recall the sentence and commitment previously ordered and resentence the defendant in the same manner as if they had not previously been sentenced ….”

September 24, 2020

A conviction set aside pursuant to section 1210.1, subdivision (e)(1), still exists for some purposes and the arrest cannot be sealed

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People v. D.C. (Cal. Ct. App., Sept. 16, 2020, No. F078629) 2020 WL 5542090, at *1–5

Summary:

D.C. petitioned to seal his arrest record under Penal Code section 851.91 after pleading no contest to possession of a controlled substance and successfully completing treatment and probation pursuant to section 1210.1.the trial court ruled that he was ineligible for relief under section 851.91. D.C. appealed claiming he qualifies for relief under section 851.91 as a person whose arrest did not result in a conviction because his arrest and conviction are deemed never to have occurred pursuant to section 1210.1, subdivision (e)(1).

September 13, 2020

The Right to Counsel Under Section 1170.95 Attaches Upon the Filing of a Facially Sufficient Petition

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People v. Cooper (Cal. Ct. App., Sept. 1, 2020, No. A156880) 2020 WL 5175210

Summary:

Cooper was convicted by no contest plea of one count of second degree murder and filed petition for resentencing, alleging he pleaded no contest because he had faced possibility of conviction of first or second degree murder under felony murder or natural and probable consequences theory. The Superior Court, Alameda County, denied the petition without appointing counsel. Cooper appealed and the Court of Appeal, Humes, held that:

September 6, 2020

Murder conviction reversed because trail court excluded significant evidence of the victim’s violent character

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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 30, 2020

California Supreme Court states financial circumstances must be considered in setting bail (Humphrey)

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The State Supreme Court posted an order on the docket of In re Humphrey (2018) 19 Cal.App.5th 1006, pending as # S247278, making Part III of the Court of Appeal decision in the case legal precedent. That part of the appellate opinion holds that due process requires consideration of the defendant’s financial circumstances in setting conditions of release. And it holds that bail schedules cannot be used by the court in setting conditions for release of a defendant when pretrial detention is not required.

Background of the case in San Francisco Superior Court

Humphrey, a retired shipyard laborer, then 63 years of age and a lifelong resident of San Francisco was arrested and charged with first degree robbery (Pen. Code, § 211),3 first degree residential burglary (§ 459), inflicting injury (but not great bodily injury) on an elder and dependent adult (§ 368, subd. (c)), and theft from an elder or dependent adult, charged as a misdemeanor. (§ 368, subd. (d).)

August 23, 2020

Odor and unsealed bag of marijuana in car provide probable cause to search the passenger’s purse.

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People v. McGee, 2020 WL 4783643 (Cal.App. 3 Dist.); filed 7/28/20; published 8/18/20

Facts and Procedural Background

On July 28, 2018, Stockton Police Officers initiated a traffic stop of McGee’s car after noticing its registration had expired. The officers noted the scent of unburned marijuana. McGee denied having any marijuana in the car. But an officer saw an unsealed bag of marijuana in the passenger’s cleavage. The officers informed McGee they were going to search the car. McGee did not consent to a search. The bag of marijuana was seized from the passenger. A zipped purse on the passenger floorboard was searched for “anything illegal, any contraband that could be in the vehicle.” A loaded handgun was seized from the purse.

July 5, 2020

Remand to strike enhancements can void plea bargain

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People v. Stamps, 2020 WL 3525176 (California Supreme Court; S255843: June 25, 2020)

Summary:

Stamps agreed to a plea bargain that included a prior serious felony enhancement (Pen. Code, § 667, subd. (a)). While his appeal was pending, a new law went into effect that gave the trial court authority to strike a serious felony enhancement in furtherance of justice (Pen. Code, § 1385, subd. (a)), a power it did not previously have. The California Supreme Court held that a certificate of probable cause (Pen. Code, § 1237.5) was not necessary to claim on appeal that the new law applied to him retroactively;