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We are happy to announce that we have resumed normal office hours from 9:30 AM to 5:30 PM Monday through Thursday, to assist you with your essential legal matters and needs. For the short term we will remain closed on Fridays. We encourage clients to try and communicate with us by phone and email. If you do need to come into the office, we require face masks and we are maintaining social distancing

People v. Nguyen (2022) 82 Cal.App.5th 888 [298 Cal.Rptr.3d 877, 879–885, 82 Cal.App.5th 888]

Summary: Under the Interstate Agreement on Detainers (Detainer Agreement, Pen. Code, § 1389), a person serving a sentence of imprisonment in one participating state  who has a detainer for charges pending in another participating state may demand final disposition of those pending charges within 180 days of receipt of the demand.  The issue is whether another state’s unreasonable delay in notifying Nguyen of his California detainer and right to demand final disposition of the underlying charges

entitles him to dismissal of his pending charges. (§ 1389, art. III, subd. (a).) This is a question of federal law. Federal decisions hold  that dismissal is not a remedy for breach of this duty of prompt notice.

People v. Lastra (Cal. Ct. App., Aug. 31, 2022, No. 2D CRIM. B309895) 2022 WL 4493826, at *1, as modified on denial of reh’g (Sept. 28, 2022)

 Summary: College students faced criminal charges for marching through the City of San Luis Obispo following the murder of George Floyd, Jr. in 2020. The trial court granted their motion to recuse District Attorney Dan Dow’s office from the case because of Dow’s association with critics of the Black Lives Matter movement. (Penal Code, § 1424.) The District Attorney and Attorney General appealed.

The trial court stated: “[N]o defendant is entitled to a prosecutor to which they are politically or socially or ideologically aligned.” “The men and woman charged here,” however, “are entitled to a prosecution not clouded by political or personal advantage to the prosecutor.” Substantial evidence supported the trial court’s determination that Dow and his office were not likely to treat respondents fairly. The Court of Appeal affirmed the order granting respondents’ motion to recuse.

People v. Johnson (Cal. Ct. App., Oct. 4, 2022, No. C094491) 2022 WL 4905411, at *1–2

Summary: The trial court has broad discretion to impose a lesser uncharged firearm enhancement provided for by Penal Code section 12022.5, subdivision (a), when it exercises its discretion to strike a Penal Code section 12022.53, subdivision (b) firearm enhancement of conviction.  The Court of Appeal remanded  the case for a full resentencing hearing, where the trial court may consider exercise of its discretion and any other new laws related to sentencing that may apply.

Discretion to strike firearm enhancements under Senate Bill 620

THE PEOPLE, Plaintiff and Appellant, v. NOLAN TAKAO NONAKA, Defendant and Respondent. (Cal. Ct. App., Sept. 30, 2022, No. 2D CRIM. B313848) 2022 WL 4591497, at *1–3

Summary: The People appeal the denial of the motion for victim restitution, including attorney fees and costs, after Nonaka was convicted by plea of felony driving with a .08 blood alcohol level or higher causing bodily injury. The People contend the trial court erred when it concluded the civil settlement and release of liability signed by the victim in the civil case discharged Nonaka’s obligation to pay restitution in the criminal case. The Court of Appeal agreed and reversed.

Facts

AB 256 “The Racial Justice Act For All”

AB 256 provides relief in cases where a final judgment was entered before January 1, 2021. This bill  requires the court, upon a showing of good cause, to order disclosure of evidence related to a potential violation of the prohibition on seeking a criminal conviction or sentence based on race, ethnicity, or national origin. An exception to disclosure would apply when a statutory privilege or constitutional privacy right cannot be adequately protected by redaction or a protective order.

Evidence of a criminal conviction or sentence based on race may  include non statistical evidence.

The United States Supreme Court decision in New York State Rifle & Pistol Ass’n, Inc. v. Bruen (2022) 142 S. Ct. 2111 renders possession of a concealed firearm and criminalizing carrying a loaded firearm on your person or in a vehicle in any public place or on a public street and (California Penal Code sections 25400(a) and 25850(a)) unconstitutional under the Second and Fourteenth Amendments of the U.S. Constitution.

§ 25400(a)(1) and 25850(a) fail Bruen’s Second Amendment test.

The Bruen court reiterated the proper standard for applying the Second Amendment: When the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct. The government must then justify its regulation by demonstrating that it is consistent with the Nation’s historical tradition of firearm regulation. The test “requires courts to assess whether modern firearms regulations are consistent with the Second Amendment’s text and historical understanding.”

ELECTRONIC FRONTIER FOUNDATION, INC., Plaintiff and Appellant, v.The SUPERIOR COURT OF SAN BERNARDINO COUNTY, Defendant and Respondent; San Bernardino County District Attorney’s Office et al., Real Parties in Interest and Respondents. E076778; Filed September 15, 20222022 WL 4243552 (Cal.App. 4 Dist.)

Summary:

Background: A Civil-liberties organization filed a petition to unseal search warrants and supporting affidavits under which county sheriff’s office was authorized to use cell-site simulators to obtain location data about cell phones. The Superior Court granted county’s motion for judgment on organization’s petition and held that the disputed materials should remain sealed. The Organization appealed.

The PEOPLE, Plaintiff and Respondent, v.Frank Eli HEARD, Defendant and Appellant; D079237; Filed September 20, 20222022 WL 4353385 (Cal.App. 4 Dist.)

 Summary: Heard was sentenced to a term of 23 years plus 80 years to life for two counts of attempted willful, deliberate and premeditated murder for a drive-by shooting he committed at age 15, and one count of voluntary manslaughter for a homicide he committed just after he turned 16. After 15 years in prison, Heard  petitioned the trial court to recall his sentence and resentence him to a lesser sentence under Penal Code section 1170, former subdivision (d)(2) (now subdivision (d)(1)).

Under this provision, a juvenile offender who “was sentenced to imprisonment for life without the possibility of parole” and has been incarcerated for at least 15 years “may submit to the sentencing court a petition for recall and resentencing.” The trial court denied Heard’s petition, finding him ineligible for relief because he was not sentenced to a term of life without the possibility of parole.

The PEOPLE, et al., Plaintiffs and Respondents, v.BOARD OF PAROLE HEARINGS, Defendant and Appellant; Nathan Joshua Ramazzini, Real Party in Interest and Appellant. C093941,Filed September 15, 2022

2022 WL 4244262 (Cal.App. 3 Dist.)

Summary: in 1997, Ramazzini was convicted of a first degree murder with a special circumstance he committed when he was was 16 years old. Ramazzini was sentenced to life in prison without the possibility of parole (LWOP).At the time Ramazzini was sentenced, courts interpreted section 190.5, subdivision (b) as establishing a presumption in favor of LWOP. (People v. Guinn (1994) 28 Cal.App.4th 1130, 33 Cal.Rptr.2d 791, disapproved by People v. Gutierrez (2014) 58 Cal.4th 1354, 171 Cal.Rptr.3d 421, 324 P.3d 245 (Gutierrez).)

THE PEOPLE, Plaintiff and Respondent, v. ALAN BUENO, Defendant and Appellant.

Court of Appeal, Fourth District, Division 1 (D078700;Filed 09/09/20)

Summary: Bueno,  a prisoner inmate at the time, arranged with a prison employee codefendant to obtain a cellular telephone. Bueno pleaded no contest to one felony count of conspiracy to violate Penal Code section 4576, subdivision (a), which bars possession with the intent to deliver or the actual delivery of a cellular telephone to a prison inmate. The  trial court had denied his motion to dismiss the conspiracy charge.

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