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People v. Duchine (Cal. Ct. App., Feb. 9, 2021, No. A157980) 2021 WL 447105, at *1

Summary: John Allen Duchine was convicted of first degree murder in 1987. In 2019, he filed a petition for resentencing under Penal Code section 1170.95,1 [Senate Bill 1437 (S.B. 1437)] with a declaration asserting he was charged and convicted of first degree murder under a felony murder theory, but that he did not, with intent to kill, aid, abet or assist the actual killer in the commission of murder, and that he could not be convicted of first degree murder under the new murder statutes (amended sections 188 or 189). After appointing counsel for Duchine and reviewing briefs submitted by his counsel and the district attorney, the trial court denied the petition.

Duchine contends the trial court erred  by denying relief at the prima facie stage on the ground that there was substantial evidence from which a reasonable trier of fact could reach a guilty verdict of first degree murder by engaging in judicial fact-finding at the prima facie stage rather than holding an evidentiary hearing.

People v. Clements (Cal. Ct. App., Feb. 4, 2021, No. E073965) 2021 WL 388834, at *1

Summary: In 1989, Jody Ann Clements solicited her ex-husband and her boyfriend to assault her 16-year-old brother who then two killed the brother by stabbing him and bludgeoning him with a rock.  A jury convicted Clements of second degree murder in 1990 after the trial judge instructed them on both natural and probable consequences and implied malice theories of murder.

In 2018, the Legislature enacted Senate Bill No. 1437 (2017-2018 Reg. Sess.) (SB 1437), which amended the definition of murder to eliminate the natural and probable consequences doctrine. (Pen. Code, §§ 188, subd. (a)(3); 189, subd. (a)) The Legislature also added a new provision to the Penal Code, which establishes a procedure for vacating murder convictions if they could not be sustained under the amended definition of murder. (§ 1170.95; Stats. 2018, ch. 1015, § 4.)

People v. Collins (Cal. Ct. App., Feb. 2, 2021, No. F076883) 2021 WL 343935

 Summary: Collins was convicted of two counts of murder as a result of driving while impaired

On appeal, he claims that  the trial court erred in denying his motion to challenge the prosecutor’s excusal of a black prospective juror during jury selection.

In re Palmer (Cal., Jan. 28, 2021, No. S256149) 2021 WL 279621, at *1

Summary: The California and federal Constitutions bar the infliction of punishment that is grossly disproportionate to the offender’s individual culpability. (U.S. Const., 8th Amend.; Cal. Const., art. I, § 17.) The courts, “as coequal guardian[s] of the Constitution, (are) to condemn any violation of that prohibition.” (In re Lynch (1972) 8 Cal.3d 410, 414 (Lynch).) When an inmate claims a sentence is excessive because of one or more parole denials is the question at the heart of this case.

William M. Palmer II first sought release on parole from the Board of Parole Hearings (Board) in 1995. Following the Board’s 10th denial, Palmer filed a petition for writ of habeas corpus claiming  that the 30 years he had already served on a life sentence for an aggravated kidnapping committed when he was a juvenile was constitutionally excessive. Before the Court of Appeal could adjudicate the habeas petition, the Board found him suitable for parole and ordered him released. (In re Palmer (2019) 33 Cal.App.5th 1199, 1202–1203 (Palmer).) The Court of Appeal subsequently agreed with Palmer that his now-completed term of imprisonment had become unconstitutional. (Id. at pp. 1207–1222.) Because that term had already been served, however, the Court of Appeal focused its order of relief on a different target. The court reasoned that Palmer was “entitled to release from all forms of custody, including parole supervision.” (Id. at p. 1224.)

The People, Plaintiff and Respondent, v. Alberto Beto Hernandez, Defendant and Appellant. (Cal. Ct. App., Jan. 22, 2021, No. B302815) 2021 WL 221976, at *1–2

Summary: On January 1, 2019 the the law governing whether a defendant can be convicted of murder under a felony murder or natural and probable consequences theory was changed. The Legislature enacted Penal Code section 188, subdivision (a)(3),1 which provides that, (except as stated in section 189, subdivision (e)), to be convicted of murder a defendant must act with malice and that malice may not be imputed based solely on participation in a crime.

Section 189, subdivision (e), is an exception to the malice requirement for murder,  stating that an individual can be liable for first degree felony murder if the person (1) was the actual killer, (2) acted with the intent to kill in aiding and abetting the actual killer, or (3) was a major participant in the underlying felony and acted with reckless indifference to human life.

Favor v. Superior Court of San Bernardino County (Cal. Ct. App., Jan. 13, 2021, No. E075340) 2021 WL 118005 

Summary: The right to a preliminary hearing within 60 days of arraignment “is absolute absent a defendant’s personal waiver.” (Ramos v. Superior Court (2007) 146 Cal.App.4th 719, 729, 53 Cal.Rptr.3d 189.)

Here, Favor agreed to a limited waiver of this right and consented to a new deadline that was 76 days after arraignment. The preliminary hearing was not held by that date, so Favor moved for mandatory dismissal under Penal Code section 859b. The People argue that there can be no limited waiver of the 60-day deadline, so Favor’s waiver was a general one that allowed the preliminary hearing to be set later than he authorized, even without a further waiver.

CDCR incarcerates people convicted of violent felonies, supervises those released to parole, and provides rehabilitation programs to help them reintegrate into the community with the tools to be drug-free, healthy, and employable members of society. The Budget proposes total funding of $13.1 billion ($12.7 billion General Fund and $345 million other funds) for the Department in 2021-22.

The COVID-19 Pandemic has impacted every aspect of prison operations and the 2020 Budget Act projected an overall adult inmate average daily population of 122,536 in 2020-21. The average daily adult inmate population for 2020-21 is now projected to be 97,950, a decrease of 20 percent from spring projections.

Some of this decrease is attributable to suspending county intake in response to the COVID-19 Pandemic, which when resumed, will increase the population. Current projections show the adult inmate population is trending downward and is expected to decrease by another 2,626 offenders between 2020-21 and 2021-22.

In re Gadlin Supreme Court of California. December 28, 2020 — P.3d —- 2020 WL 7690154

 Proposition 57- nonviolent felony parole consideration

In 2009, a three-judge federal district court panel ordered the CDCR “to reduce the prisoner population to 137.5% of the adult institution’s total design capacity.” (Coleman v. Schwarzenegger (E.D.Cal. 2009) 922 F.Supp.2d 882, 962; see also Brown v. Plata (2011) 563 U.S. 493, 501–503, 131 S.Ct. 1910, 179 L.Ed.2d 969.) The California Legislature and electorate subsequently enacted several measures aimed to reduce the prison population, including Assembly Bill No. 109 (Stats. 2011, ch. 15, § 482 (2011–2012 Reg. Sess.); criminal realignment) and Proposition 36 (the Substance Abuse and Crime Prevention Act of 2000). In February 2014 the federal district court ordered the Department to implement additional measures.

People v. Brooks (Cal. Ct. App., Dec. 22, 2020, No. A158988) 2020 WL 7586811, at *1

Summary: Jason Brooks appealed  the denial of a petition seeking recall of his sentence pursuant to Penal Code section 1170.91. Brooks agreed to a stipulated term of years in a plea bargain 13 years ago, and  sought recall of his sentence under section 1170.91, subdivision (b)(1), invoking an amendment to section 1170.91 enacted two years ago. The Court of Appeal upheld the summary denial of his petition.


People v. Gentile, Supreme Court of California, (S256698), December 17, 2020 — P.3d —- 2020 WL 7393491

Aider and abettors and liability under the natural and probable consequences doctrine

An accomplice who aids and abets a crime is liable  for both that crime and any other offense committed that is the natural and probable consequence of the aided and abetted crime. Liability under the natural and probable consequences doctrine can be imposed even if the accomplice did not intend the additional offense. (People v. McCoy (2001) 25 Cal.4th 1111, 1117, 108 Cal.Rptr.2d 188, 24 P.3d 1210 (McCoy).

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