Read on for important information about the latest developments surrounding the retroactivity of AB 333’s gang enhancement bifurcation provision; an update on the status of People v. Strong and possible delays to transfer and/or dispositional orders and potential avenues for seeking expedited dispositions; an informal roundtable with a new justice in the 1st DCA; upcoming training opportunities; and new and noteworthy panel victories.
Overview of Latest Developments Surrounding the Retroactivity of AB 333’s Gang Enhancements Bifurcation Provision
The retroactivity of AB 333’s bifurcation provision remains unsettled after the California Supreme Court declined to resolve the issue in People v. Tran, S165998. FDAP Assistant Direct J. Bradley O’Connell has prepared an overview of the latest developments for appointed attorneys confronted with this issue on appeal.
People v. Strong Follow-Up: Grant-and-Holds and Expediting Dispositions
For those with grant-and-hold cases behind People v. Strong (Aug. 8, 2022; S266606) 13 Cal.5th __, 296 Cal.Rptr.3d 686, FDAP’s Assistant Director J. Bradley O’Connell has prepared an update about the status of Strong, possible delays to transfer and/or dispositional orders, and potential avenues for seeking expedited dispositions in some cases.
New Justice in Division Four
Justice Jeremy M. Goldman was appointed to the First District Court of Appeal in August, joining Division Four. The Bar Association of San Francisco is hosting an informal roundtable with Justice Goldman on September 12, 2022. Register for the roundtable here.
Upcoming FDAP Trainings
Appellate Issues Involving the Insanity Defense in Criminal Proceedings and Civil Commitment Following a Finding of Not Guilty by Reason of Insanity
September 15, 2022, 12:00 – 1:30 p.m
Join FDAP Staff Attorneys Megan Hailey-Dunsheath and Jeremy Price on Thursday, September 15, 2022 from 12:00 to 1:30 p.m. for a webinar that will address the dividing line between evidence of mental illness admissible at the guilt and sanity phases of a criminal trial; instructional error; the validity of not guilty by reason of insanity (NGI) pleas; the direct and collateral consequences of an NGI finding; extended NGI commitments; avenues for release from an NGI commitment; outpatient revocation; and involuntary medication orders. The webinar is eligible for 1.5 hours of MCLE credit, including 1.5 hours of appellate and criminal specialization credit. Register here.
Avoiding Adverse Consequences for Your Client in Dependency Appeals
Thursday, October 13, 2022,12:00 – 1:00 p.m.
Join FDAP Staff Attorney Louise Collari on Thursday, October 13, 2022 from 12:00 to 1:00 p.m. for a presentation on the possible unintended adverse consequences that may arise during the appeal and which must be considered in light of our ethical duties to the client. This webinar is eligible for 1.0 hours of ethics MCLE credit. Register here.
New Legislation Webinar 2022
November 9, 2022, 12:00 p.m. – TBD
As in past years, we expect a flurry of new legislation at the end of the legislative session. To stay on top of it all, please join FDAP Staff Attorneys Deborah Rodriguez and Nat Miller for an overview of new criminal, juvenile delinquency, and civil commitment laws. The webinar is scheduled for November 9, 2022 at 12:00 p.m. and is eligible for MCLE credit, including appellate and criminal specialization credit. The length of the webinar is to be determined, depending on the number and complexity of new laws enacted. Register here.
Panel Victories
Below are a few noteworthy First District victories from this past month. These opinions and many more can be found on the Panel Victories page of FDAP’s Website.
A159074 – [Unpublished Opinion | Panel Attorney Sangeeta Sinha] The Court of Appeal held that insufficient evidence supported an embezzlement conviction (Pen. Code, § 504) because, although appellant had access to the company’s money and was responsible for keeping the company’s checking account balanced, the record did not show that the company had entrusted appellant with possession or control of the money she stole as required under the statute.
A162223/A162241 – [Unpublished Opinion | Panel Attorneys David Stanley & Stephen Bedrick] In denying the defendants’ petitions for resentencing under former Penal Code section 1170.95, the trial court found that the prosecutor had proven beyond a reasonable doubt that the defendants directly aided and abetted the murder. However, the Court of Appeal held that the trial court’s judgment must be reversed because the record failed to reveal mandatory elements of direct aider and abettor liability, namely that (1) a third party perpetrator, who harbored express or implied malice, lethally shot the victim; (2) each defendant was aware of and shared the perpetrator’s intent (express malice) or acted in conscious disregard for human life (implied malice); and (3) each defendant assisted, encouraged, or facilitated the commission of the crime.
A164098 – [Unpublished Opinion | Panel Attorney William Farber] The Court of Appeal held that, because the federal and California constitutions oblige a court to consider ability to pay in determining whether a fine is excessive under the Eighth Amendment or deprives a defendant of due process under People v. Dueñas (2019) 30 Cal.App.5th 1157, the trial court abused its discretion by denying appellant’s request for an ability to pay hearing before imposing a $5,000 restitution fine. The Court further found that the error was not harmless where appellant was deprived of the opportunity to present evidence on ability to pay, was 61 years old when convicted, had significant debt, had COVID-19 on three occasion, and continued to experience lingering symptoms of COVID-19 as of the sentencing hearing.