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San Francisco Criminal Lawyer Blog

September 26, 2021

Recall of sentence recommendation creates a substantial liberty interest with right to notice and to present information to the court

by Uthman Law Office

THE PEOPLE, Plaintiff and Respondent, v. JOSE ALEX MENDEZ, Defendant and Appellant. (Cal. Ct. App., Sept. 24, 2021, No. B306301) 2021 WL 4350480

Summary: Jose Alex Mendez appealed the denial of a recommendation by the secretary of the California Department of Corrections and Rehabilitation (CDCR) to recall his sentence under Penal Code section 1170, subdivision (d)(1). Mendez claimed that the trial court abused its discretion by failing to adequately weigh his postconviction record and by not giving him an opportunity to be heard on the recommendation by the CDCR to recall his sentence.

The California Code of Regulations requires the secretary to provide a copy of the recommendation letter and Cumulative Case Summary to the prisoner (Cal. Code Regs., tit. 15, § 3076.1, subd. (e)(2)). Here, the secretary also provided copies of the abstract of judgment and minute orders, along with the recommendation letter and Cumulative Case Summary to the Los Angeles County District Attorney’s Office and the Los Angeles County Public Defender’s Office. However, the trial court did not give the parties notice or an opportunity to present additional information on the resentencing recommendation. The Court of Appeal reversed because of the substantial liberty interest at stake when the secretary issues a recommendation to recall an inmate’s sentence. The court of appeal remanded to the trial court to give notice to the parties, to allow the parties the opportunity to supplement the CDCR’s recommendation with additional relevant information, and to enable the trial court to exercise its discretion based on any briefing the parties might submit.

September 19, 2021

Exclusion of juror for support of BLM was discriminatory

by Uthman Law Office

The People, Plaintiff and Respondent, v. Sheldon Vaughn Silas et al., Defendants and Appellants. (Cal. Ct. App., Sept. 17, 2021, No. A150512) 2021 WL 4236771

Summary: Defendants Sheldon Silas, Reginald Whitley, Lamar Michaels, and Linda Chaney, all of whom are Black, were tried for crimes related to the murders of Christopher Zinn and Brieanna Dow, who were also Black. The prosecutor used peremptory strikes against three Black prospective jurors, including one who expressed support for Black Lives Matter. Defendants brought Batson/Wheeler motions to challenge the exclusion.

T]he use of peremptory challenges to remove prospective jurors on the sole ground of group bias violates the right to trial by jury drawn from a representative cross-section of the community under article I, section 16, of the California Constitution.” (People v. Wheeler (1978) 22 Cal.3d 258, 276-277.)

September 12, 2021

Constitutional challenge to parking tickets in SanFrancisco

by Uthman Law Office

Based on: San Francisco Chronicle, “A woman is suing S.F. for $50 million over a parking ticket, saying tire chalk is unconstitutional,” Rachel Swan, Sep. 11, 2021

https://www.sfchronicle.com/bayarea/article/A-woman-is-suing-S-F-for-50-million-over-a-16450146.php

ALISON PATRICIA TAYLOR, Plaintiff-Appellant/Cross-Appellee, v. CITY OF SAGINAW, MICHIGAN; TABITHA HOSKINS, Defendants-Appellees/Cross-Appellants. (6th Cir., Aug. 25, 2021, No. 20-1538) 2021 WL 3745345

September 4, 2021

Drunk driving under Vehicle 23152(a) and 23152(b) are separate offenses and a driver may be convicted of both

by Uthman Law Office

People v. Grabham (Cal. Ct. App., Aug. 31, 2021, No. A160384) 2021 WL 3909628, at *1

Summary: Grabham was convicted of violating Vehicle Code 1 section 23152, subdivision (a) (section 23152(a)) and section 23152, subdivision (b) (section 23152(b)). Grabham arguesd that section 23152(a) and (b) are different statements of the same offense and Penal Code section 954 trequires vacatur of one of his convictions. The First Appellate District concluded that section 23152(a) and (b) are separate offenses and Grabham may properly be convicted of both.

Facts: California Highway Patrol Officers initiated a traffic stop due to Grabham’s cellphone use and expired registration. After smelling alcohol coming from the truck and observing that Grabham’s eyes were red and watery and that his speech was slurred a full DUI investigation was conducted.

September 1, 2021

Collection of DNA from felony arrestees does not violate the Fourth Amendment

by Uthman Law Office

People v. Roberts (Cal. Ct. App., Aug. 20, 2021, No. C081843) 2021 WL 3700319, at *1

Summary: Roberts’ DNA had been collected after an unrelated felony arrest for which he was not charged. Based primarily on the DNA evidence, a jury found him guilty of murder in the first degree and he was sentenced to an aggregate term of 26 years to life.

Issue: Whether using a DNA sample taken from a defendant who is validly arrested for a felony on probable cause but never formally charged, violates the defendant’s federal or state constitutional rights against unreasonable search and seizure or his state constitutional right to privacy.

August 28, 2021

Parole period for crimes other than sex offenses and those carrying life terms limited to two years under section 3000.01

by Uthman Law Office

People v. Tan (Cal. Ct. App., Aug. 19, 2021, No. B308687) 2021 WL 3673888, at *1–2

Summary: Tan was convicted of robbery and first degree murder. In 2020, the trial court vacated Tan’s murder conviction under Penal Code section 1170.95, resentenced him on the robbery count, and ordered him released on time served. The court also imposed a three-year parole term. Tan appealed and claimed that section 3000.01, which was enacted before he was resentenced in this case, limits his parole term to two years. The People conceded the point, and, as a matter of first impression, the court of appeal agreed and modifed Tan’s sentence to reflect a two-year parole term.

Legal Principles and Standard of Review for an Unauthorized Sentence and Section 3000.01

August 22, 2021

Judicial Diversion for Misdemeanor DUI- depends on the county

by Uthman Law Office

People v. Sup. Ct. (Espeso); BS 175803; 7/14/21; Los Angeles Superior Court App. Div. ruled no diversion for DUI

People v. Sup. Ct. (Diaz‑Armstrong); APR12100008; 7/27/21; Riverside Sup. Ct. App. Div.-ruled diversion available for DUI

There is a split on this question. The Riverside Superior Court appellate division says that 23640 does not bar diversion for a misdemeanor DUI.

August 15, 2021

Elimination of the Probation Supervision Fee under PC 1465.9 Applies Retroactively

by Uthman Law Office

People v. Clark (Cal. Ct. App., July 29, 2021, No. A158238) 2021 WL 3205435, at *1

Summary: Clark appealed and challenged the imposition of a monthly $100 probation supervision fee, following a violation of his probation while his appeal was pending. Assembly Bill 1869 repealed the statute authorizing the probation supervision fee, Penal Code section 1203.1b.

Clark argued that he is entitled to the retroactive benefit of Assembly Bill 1869, and asked that the court order vacatur of the fee imposed on him under section 1203.1b.

August 7, 2021

Challenges to reasonableness of mandatory supervision conditions are evaluated under the Lent Standard for probation conditions

by Uthman Law Office

People v. Bryant (Cal., July 29, 2021, No. S259956) 2021 WL 3201079, at *1

Summary: The 2011 Realignment Act (Stats. 2011, ch. 15, § 1; Realignment Act or Act) provides for a period of mandatory supervision after a county jail sentence for eligible defendants. The California Supreme Court assessed the validity of a challenged condition of mandatory supervision and concluded that discretionary conditions are to be evaluated for reasonableness on a case-by-case basis under the test set out in People v. Lent (1975) 15 Cal.3d 481, 124 Cal.Rptr. 905, 541 P.2d 545 (Lent).

Facts: Bryant was convicted of carrying a concealed firearm in a vehicle. (Pen. Code,1 § 25400, subds. (a)(1) & (c)(6).) The court imposed a split sentence (§ 1170, subd. (h)(5)), of two years in the county jail, with the last 364 days to be served at large on mandatory supervision. Over Bryant’s objection, the court imposed the following condition: “Defendant is to submit to search of any electronic device either in his possession[,] including cell phone[,] and/or any device in his place of residence. Any search by probation is limited to defendant[’]s text messages, emails, and photos on such devices.”

August 1, 2021

Prisoners entitled to appointment of counsel when making a prima facie case under SB 1437

by Uthman Law Office

People v. Lewis (Cal., July 26, 2021, No. S260598) 2021 WL 3137434, at *1

Summary: The California Supreme Court reviewed Senate Bill No. 1437 (Stats. 2018, ch. 1015; Senate Bill 1437) which eliminated natural and probable consequences liability for murder and limited the scope of the felony murder rule. (Pen. Code, §§ 188, subd. (a)(3), 189, subd. (e), as amended by Senate Bill 1437.) Senate Bill 1437 also added section 1170.95 to the Penal Code,1 which creates a procedure for convicted murderers who could not be convicted under the law as amended to retroactively seek relief.

In this case, the court decided two issues.