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San Francisco Criminal Lawyer Blog

March 26, 2023

Plea to conviction requiring mandatory deportation vacated under under Penal Code section 1473.7

by Uthman Law Office

People v. Villalba (Cal. Ct. App., Mar. 8, 2023, No. B318353) 2023 WL 2595696, at *1

Summary: Villalba appealed the denial of his motion under Penal Code section 1473.7, subdivision (a)1 to withdraw his 2017 no contest plea to a violation of section 273.5 and to vacate his conviction. Villalba asserted that he did not meaningfully understand the actual adverse immigration consequences of the conviction because of misadvice from his lawyer and from the Court. He also maintained that he would not have agreed to the plea if he had understood, and the trial court erred in denying the motion. The Court of Appeal found undisputed evidence demonstrated a reasonable probability that if he had been properly advised of the immigration consequences of his plea, he would not have pled no contest to an offense requiring mandatory deportation. The Court we reversed the order and remanded with directions to the trial court to grant the motion and vacate the conviction pursuant to section 1473.7, subdivision (e).

Plea and conviction

March 18, 2023

Police Officer Testimony by Telephone at DMV Administrative Hearing is Improper when Driver Objects

by Uthman Law Office

Ramirez v. Superior Court of Kern County (Cal. Ct. App., Feb. 9, 2023, No. F082588) 2023 WL 2399712

Summary: A driver petitioned for writ of mandate ordering Department of Motor Vehicles (DMV) to set aside its driver’s license suspension order following his arrest for driving under the influence (DUI). The Superior Court granted the petition. DMV appealed as real party in interest. The Court of Appeal held that:

Administrative Procedure Act’s (APA) provision, addressing when a presiding officer can conduct a hearing by telephone, applied to administrative per se (APS) adjudicative hearing conducted by DMV; APA’s provision, stating that a presiding officer “may not” conduct a hearing by telephone if a party objects, and regulation adopted to implement the APA provision in context of DMV adjudicative hearings, are mandatory, substantive procedural protections; and substantial evidence supported implied finding that motorist was prejudiced by police officer testifying by telephone.

March 11, 2023

Plea accepted without understanding immigration consequences may be vacated

by Uthman Law Office

People v. Espinoza (2023) 14 Cal.5th 311 [303 Cal.Rptr.3d 670, 522 P.3d 1074]

Summary: After serving sentence, noncitizen filed statutory motion to vacate conviction pursuant to negotiated no-contest plea, because he had not understood immigration consequences of plea. The Superior Court denied the motion. Noncitizen appealed. The Court of Appeal, 2021 WL 2177264, affirmed. Review was granted by the California Supreme Court.

Holding: The Supreme Court held that noncitizen corroborated his claim that immigration consequences were a paramount concern when he entered negotiated no-contest plea.

March 5, 2023

Good cause found for speedy trial violations in San Francisco

by Uthman Law Office

Estrada v. Superior Court of City and County of San Francisco (Cal. Ct. App., Feb. 28, 2023, No. A166474) 2023 WL 2320352, at *1

Summary: Represented by the Office of the San Francisco Public Defender Petitioners sought a writ of mandate or prohibition requiring respondent Superior Court of the City and County of San Francisco to dismiss their cases for violating their speedy trial rights under Penal Code section 1382. Petitioners contend there was no good cause to continue their cases past the statutory deadline, maintaining the superior court can no longer rely on the “exceptional circumstances” resulting from the COVID-19 pandemic. The Court of Appeal concluded the superior court did not abuse its discretion in finding good cause to continue their trial dates past the statutory deadlines.

COVID-19 Pandemic and Criminal Trial Delays

February 5, 2023

Time during which probation was summarily revoked can be tacked on to the term when probation is reinstated

by Uthman Law Office

People v. Ornelas (Cal. Ct. App., Jan. 30, 2023, No. A165333) 2023 WL 1097221, at *1–2

Summary: Ornelas was placed on probation in July 2021 for the maximum statutory term of two years. He failed to report to probation, his probation was summarily revoked, and a bench warrant was issued for his arrest. He was arrested and admitted to violating the terms of his probation. In April 2022—still within his original two-year probationary term—the trial court reinstated him on probation, but this time with a new termination date in November 2023 to account for the days he had been “in warrant status” and his probation had been summarily revoked.

On appeal, Ornelas contends that the trial court exceeded its jurisdiction by extending his probation to November 29, 2023, which Ornelas argued is beyond the two-year maximum probationary period authorized by statute. The Court of Appeal ruled that when probation has been summarily revoked and then reinstated within the initial probationary term, the trial court has discretion to extend probation to account for the time when probation was summarily revoked so long as the total period of probationary supervision does not exceed the statutory maximum. Even with an extension to November 2023, Ornelas’s term of probation, not including the time he was on warrant status and his probation was summarily revoked, is less than two years.

January 29, 2023

No presumption created by factors that court must weigh heavily in favor of dismissing enhancements

by Uthman Law Office

January 21, 2023

Implied Malice Remains A Valid Theory Of Liability For Aiders And Abettors To Murder

by Uthman Law Office

People v. Silva (Cal. Ct. App., Jan. 18, 2023, No. F083248) 2023 WL 240015, at *1

Summary: Silva petitioned the superior court, under former section 1170.95 (now § 1172.6) of the Penal Code, for resentencing on his conviction for second degree murder arising from the murder of Bill James who was stabbed during an altercation with members of the Mongols motorcycle club, including Silva. The superior court held an evidentiary hearing (§ 1172.6, subd. (d)(1)) and denied the petition after finding petitioner was guilty of murder under an implied malice theory.

On appeal, Silva argued the order denying the petition must be reversed because Senate Bill No. 1437 eliminated implied malice as a valid theory of murder liability for aiders and abettors and substantial evidence did not support a finding petitioner acted with implied malice. The Court of Appeal held that implied malice remains a valid theory of liability for aiders and abettors to murder and affirmed.

January 14, 2023

Is a prison “kite” protected by the attorney-client privilege?

by Uthman Law Office

People v. Superior Court of Santa Cruz County (Cal. Ct. App., Jan. 12, 2023, No. H049188) 2023 WL 167078, at *1–2

Summary: Is a suspected inmate “kite”—a written message sent in violation of jail rules— covered by the attorney-client privilege when it is contained in an envelope sent by an inmate to his attorney? Because the inmate here did not establish the kites are a confidential communication to his attorney, the attorney-client privilege does not apply. The Court issued a peremptory writ of mandate requiring the Superior Court to vacate its order finding otherwise.

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January 10, 2023

New Criminal Laws 2023

by Uthman Law Office

Source: Garrick Byers, Statute Decoder

Racial Justice Act Expanded and Made Retroactive in Stages,

AB 256 (Stats. 2022, Ch. 739) Amends PC 745

January 7, 2023

A prosecutor’s jury selection notes are not shielded from disclosure in postconviction proceedings that raise a Batson claim

by Uthman Law Office

Box v. Superior Court of San Diego County (Cal. Ct. App., Dec. 30, 2022, No. D080573) 2022 WL 17999610

Summary: Issue: The issue decided was: Are a prosecutor’s jury selection notes core work product shielded from disclosure in postconviction proceedings that raise a Batson claim?

The Court of AppeL held that where a prima facie case of racial bias under Batson/Wheeler has been made, a defendant is entitled to discover the prosecution’s jury selection notes under section 1054.9. Those notes are not categorically shielded from discovery by the absolute work product privilege. (§ 1054.6; see Code Civ. Proc., § 2018.030, subd. (a).) When the People maintain that those notes reflect the prosecution’s impressions, conclusions, opinions, or legal research and theories about case strategy independent of conclusions or impressions about prospective jurors, they bear the burden to make that foundational proffer and seek appropriate redactions from the trial court.