San Francisco Criminal Lawyer Blog

In re Brown (Cal. Ct. App., Mar. 14, 2022, No. B313533) 2022 WL 766252, at *1

Summary: The Supreme Court held in In re Humphrey (2021) 11 Cal.5th 135(Humphrey) that conditioning pretrial release from custody solely on whether an arrestee can afford bail is unconstitutional. When nonmonetary conditions of release cannot adequately protect the safety of the public and victims and ensure an arrestee’s appearance at trial and bail is necessary, the trial court “must consider the arrestee’s ability to pay the stated amount of bail—and may not effectively detain the arrestee ‘solely because’ the arrestee ‘lacked the resources’ to post bail.” When no option other than refusing pretrial release can reasonably protect the State’s compelling interest in victim and community safety, the Humphrey Court continued, “a court must first find by clear and convincing evidence that no condition short of detention could suffice and then ensure the detention otherwise complies with statutory and constitutional requirements.” The trial court may not make continued detention depend on the arrestee’s financial condition. The superior court denied Brown’s motion, filed after the decision in Humphrey, to reduce his $2.45 million bail to an amount he could afford.

Brown remained in custody awaiting trial . The court of appeal granted his petition for writ of habeas corpus and ordered the trial court to hold a new hearing at which it is to consider nonmonetary alternatives to money bail, determine Brown’s ability to afford the amount of money bail if it is to be set, and follow the procedures and make the findings necessary for a valid order of detention.

LONGEN TAN, Petitioner, v. THE SUPERIOR COURT OF SAN MATEO COUNTY, Respondent; THE PEOPLE, Real Party in Interest. (Cal. Ct. App., Mar. 10, 2022, No. A163715) 2022 WL 714708, at *1

 Summary: Tan was charged with misdemeanor driving under the influence. Effective January 1, 2021, the Legislature enacted a new law, Penal Code section 1001.95, making defendants charged with misdemeanors generally eligible for diversion at the discretion of the trial judge. The law expressly exempts several offenses from eligibility for diversion. It does not exclude driving under the influence.  But Vehicle Code section 23640 provides that driving under the influence (DUI) is ineligible for diversion.

Tan filed a petition for misdemeanor diversion under section 1001.95, arguing that section 1001.95 superseded Vehicle Code section 23640. Tan’s petition was denied in the  trial court and he filed a petition for writ of mandate in the court of appeal, asking it to direct the trial court to vacate its order denying his petition. At the time he filed his petition, no Court of Appeal had decided the issue presented and there was a split of authority between two published superior court appellate division opinions as to the availability of diversion in cases of misdemeanor DUI. After briefing, Division Three of the Fourth Appellate District issued its opinion in Grassi v. Superior Court (2021) 73 Cal.App.5th 283 (Grassi), concluding that section 1001.95 and Vehicle Code section 23640 can be harmonized, and that misdemeanor diversion is unavailable to defendants charged with DUI. The court of appeal found it  difficult and close question.The court held that the two statutes can be reconciled and that misdemeanor convictions for DUI are not eligible for statutory diversion. The court denied the petition

Hernandez-Valenzuela v. Superior CourtDocket: A163992(First Appellate District) Opinion Date: March 4, 2022

Facts: Hernandez-Valenzuela (collectively “petitioners”) sought a writ of mandate or prohibition requiring respondent Superior Court of the City and County of San Francisco to dismiss his case for violating his speedy trial rights under Penal Code section 1382.2 Petitioner contend there was no good cause to continue their cases past the statutory deadline. We disagree and therefore deny each of their petitions.

The COVID-19 Pandemic and San Francisco Court operations

People v. Williams (Cal. Ct. App., Feb. 24, 2022, No. B311161) 2022 WL 556906, at *1–6

Facts:  Williams filed  a “Petition for Modification of Sentence (Pursuant to P.C. 1170(d)(1).)” Asking the trial the court to modify his 1996 judgment based on “charging and sentencing policies” adopted by Los Angeles County District Attorney George Gascón. In Williams quoted Penal Code section 1170, subdivision (d)(1)1 and argued his 1996 sentence could be modified or recalled because “the district attorney’s office considers that only 15 years of the 25 years [he] already served is more than enough” and the court could consider, under the same statutory provision, his good conduct in prison.

The trial court denied defendant’s section 1170, subdivision (d)(1) petition for modification of sentence without appointing counsel for defendant. A minute order memorializing the court’s ruling explains the petition was “denied as untimely” (coming, as it did, well after the 120-day period and without the requisite accompanying recommendation).

People v. Hampton (Cal. Ct. App., Feb. 10, 2022, No. C093270) 2022 WL 405368, at *1

Summary: Hampton was found guilty of first degree murder and two counts of robbery and sentenced  to a term of 33 years to life The jury could not reach a verdict on the robbery-murder special-circumstance allegation, and that allegation was dismissed on the People’s motion for insufficient evidence.

Hampton filed a petition for resentencing under Penal Code section 1170.95 and requested appointment of counsel. The trial court granted the petition finding the dismissal of the special-circumstance allegation for insufficient evidence was equivalent to an acquittal. The People appeal contending the dismissal of the special-circumstance allegation was not an acquittal. The Court of Appeal affirmed the order granting the petition for resentencing.

People v. Speck (Cal. Ct. App., Feb. 2, 2022, No. C093273) 2022 WL 304910

Summary: A jury found Speck guilty of felony vehicle theft (Veh. Code, § 10851, subd. (a)) and receiving stolen property (Pen. Code, § 496d) with special allegations that the Honda was valued at over $950. The jury found defendant guilty as charged of both counts and the value allegations. The trial court sentenced him to the upper terms of three years in “county prison” for unlawfully driving a vehicle and three years for receiving stolen property, with sentence on the latter count stayed pursuant to section 654. Speck  appealed claiming that the trial court prejudicially erred in failing to instruct the jury on mistake of fact. (CALCRIM No. 3406.)

The Court of appeal agreed and reversed the judgment.

People v. Sek (Cal. Ct. App., Feb. 1, 2022, No. B309003) 2022 WL 292614, at *1

Summary: Assembly Bill No. 333, effective January 1, 2022, changed the law regarding gang enhancements under Penal Code 1 section 186.22.  The new law requires that to  to prove that the defendant committed a crime for the benefit of a criminal street gang, the prosecution must show that the benefit to the gang was “more than reputational.” (Penal Code § 186.22, subd. (g).) Examples of a common benefit that are more than reputational may include, but are not limited to, financial gain or motivation, retaliation, targeting a perceived or actual gang rival, or intimidation or silencing of a potential current or previous witness or informant.

Sek, who was convicted of attempted murder  for his role in a gang shooting,  argued that this law applies retroactively to him. He argues that because the jury instructions did not reflect this change in the law, the jury’s findings on the gang enhancements in his case must be reversed. The court agreed..

Hemphill v. New York (2022) 142 S.Ct. 681

Summary: The admission of a third party’s plea allocution, because it  was reasonably necessary to correct defendant’s misleading argument, violated defendant’s right to confront the witnesses against him.

Facts: In 2006, a stray 9-millimeter bullet killed a 2-year-old child after a street fight in the Bronx. Police officers determined Ronnell Gilliam was involved and that Nicholas Morris had been at the scene. Morris’ apartment was searched and  a 9-millimeter cartridge and three .357-caliber bullets were found.  Gilliam initially identified Morris as the shooter, but later said that Darrell Hemphill, Gilliam’s cousin, was the shooter. The  State charged Morris with the child’s murder and possession of a 9-millimeter handgun. In a plea deal, the State agreed to dismiss the murder charges against Morris if he pleaded guilty to a new charge of possession of a .357 revolver, a weapon that had not killed the victim. Years later, the State indicted Hemphill for the child’s murder based on  DNA evidence . At his trial, Hemphill elicited testimony from a prosecution witness that police had recovered 9-millimeter ammunition from Morris’ apartment, thus incriminating Morris. Morris was not available to testify at Hemphill’s trial because he was outside the United States. Despite the objection of Hemphill’s counsel, the trial court allowed the State to introduce parts of the transcript of Morris’ plea allocution to the .357 gun possession charge as evidence to rebut Hemphill’s theory that Morris committed the murder. The court reasoned that  although Morris’ out-of-court statements had not been subjected to cross-examination, Hemphill’s arguments and evidence had “opened the door” and admission of the statements was necessary to correct the misleading impression Hemphill had created. The State, in its closing argument, cited Morris’ plea allocution and emphasized that possession of a .357 revolver, not murder, was the crime Morris committed. The jury found Hemphill guilty.

People v. Flores (Cal. Ct. App., Jan. 13, 2022, No. A160578) 2022 WL 121934, at *7–8

Changes to determinate sentencing law in 2022-Senate Bill 567

Felonies typically  carry three possible sentences, called a  low, middle, and high term.  High terms  cannot be imposed without a finding that there are aggravating factors. Previously,  judges could decide  if there were aggravating factors.  Effective January 1, 2022, the  determinate sentencing law, section 1170, was amended. (See Sen. Bill No. 567 (2020–2021 Reg. Sess.); Stats. 2021, ch. 731, § 1.3; Assem. Bill No. 124 (2020–2021 Reg. Sess.); Stats. 2021, ch. 695, § 5.)

People v. Tirado (Cal., Jan. 20, 2022, No. S257658) 2022 WL 176141, at *1

 Summary: Penal Code section 12022.53 authorizes enhancements for certain felonies involving firearms.Section 12022.53, subdivision (h) (section 12022.53(h)) authorizes courts to strike certain enhancements in the interests of justice under the authority of section 1385.

Issue: when the prosecution has alleged, and the jury has found true, the facts supporting an enhancement under section 12022.53, subdivision (d) (section 12022.53(d)). what may the court  do if it decides to strike that enhancement. May the court impose a lesser uncharged enhancement under either section 12022.53, subdivision (b) (section 12022.53(b)) or section 12022.53, subdivision (c) (section 12022.53(c))? Or is the court limited to imposing the section 12022.53(d) enhancement or striking it? The California Supreme Court held that a court may strike the section 12022.53(d) enhancement found true by the jury and impose a lesser uncharged statutory enhancement.