Latest First District Victories
September 21, 2021
Attorney: Jonathan Roberts
Categories: Criminal Retroactivity of Changes in Law Sentencing
In a case in which appellant entered into a negotiated disposition that involved admitting six prior prison terms and resulted in a 10-year split sentence, the Court of Appeal held that, pursuant to People v. Esquivel (2021) 11 Cal.5th 671 and People v. McKenzie (2020) 9 Cal.5th 40, appellant’s case was not final for purposes of retroactive application of SB 136 – which restricted one-year prison term enhancements to terms served for violent sexual offenses – under Estrada. However, after noting that “Courts of Appeal are split as to whether remand under [People v. Stamps (2020) 9 Cal.5th 685] is required where, as here, legislation has eliminated (rather than left to the trial court’s discretion) a sentencing enhancement imposed in connection with a negotiated disposition that included a specific, agreed-to sentence,” the Court held that the case must be remanded. But the Court ordered that, upon remand, the trial court may not impose a longer term than that to which the parties originally agreed.
September 17, 2021
Attorney: Stephen Bedrick, Alex Coolman, Berry Karl, and Ross Thomas
Categories: Criminal Jury Selection
[Published Opinion] The Court of Appeal found that the Batson/Wheeler motion involving a prospective juror who expressed support for Black Lives Matter was improperly denied. In so holding, the Court found that the record does not support the trial court’s view that the juror had “a myriad of anti-prosecution issues” justifying a peremptory challenge, “given the prosecutor’s inappropriate questioning about Black Lives Matter, the absence of any clear and legitimate nondiscriminatory reasons for striking the juror, and the evidence of at least some historical discrimination by the prosecutor and other district attorneys in her office. . . .” The Court also found that insufficient evidence supported the conclusion that the peremptory challenge of the juror was not motivated by discriminatory intent (third-stage ruling).
September 8, 2021
Attorney: Wilder Lee
Categories: Criminal Jury Instructions Sentencing
In a case in which appellant was found guilty of dissuading a witness by force or threat under Penal Code section 136.1, subdivision (c)(1), the Court of Appeal held that the trial court erred by failing to instruct with CALCRIM No. 2623. Because the court further held that it was not clear beyond a reasonable doubt what the jury might have decided if properly instructed, the Court modified the judgment to reduce appellant’s conviction to a violation of section 136.1, subdivision (a)(1). The court also remanded the case to allow the trial court to exercise its discretion with respect to the firearm and prior serious felony conviction enhancements.
September 7, 2021
Attorney: Richard Schwartzberg
Categories: Credits Criminal Fines, Fees, and Victim Restitution
The Court of Appeal held that appellant’s excess presentence custody credits should be applied to eliminate appellant’s three-year parole period, and that the parole revocation fine under Penal Code section 1202.45 should be stricken as a result.
August 30, 2021
Attorney: Richard Braucher
Categories: Criminal Guilty Pleas
[Published Opinion] The Court of Appeal held that the trial court erred in rejecting appellant’s Penal Code section 1473.7 motion to vacate a possession for sale conviction (Health & Safety Code section 11378), which ultimately led to appellant’s deportation. In reaching this decision, the Court of Appeal found that, at the time appellant filed the motion, she was no longer in custody in the underlying case (and her probation status in a wholly separate case did not bar her motion), and she showed it was reasonably probable that she would not have entered her no contest plea if she had known its adverse immigration consequences. The court further noted that her attorney’s failure to properly advise her was prejudicial considering appellant’s “undisputed, deep, lifelong connections to this country, the dire consequences of her plea and the likelihood that she would have fought harder to avoid these consequences if she had known of them.”
August 27, 2021
Attorney: Kathy Moreno
Categories: Criminal Sentencing
In an 1170.95 case, the Court of Appeal held that the trial court improperly conducted factfinding at the prima facie stage when subdivision (c) of the statute required the trial court to issue an order to show cause and conduct an evidentiary hearing because the record did not conclusively demonstrate appellant’s ineligibility as a matter of law.
August 26, 2021
Attorney: Eric Weaver
Categories: Criminal Sentencing
The Court of Appeal held that the trial court applied the wrong standard of proof when denying appellant’s 1170.95 petition without an order to show cause or holding an evidentiary hearing. The trial court reviewed the record for substantial evidence rather than simply determining whether appellant made a prima facie showing that he was entitled to relief, as People v. Lewis (2021) 11 Cal.5th 952, 962 instructs.
August 20, 2021
Attorney: Louise Collari
Categories: Dependency Permanency Planning (Section 366.26)
The Court of Appeal found that the juvenile court did not conform with the principles articulated in In re Caden C. when it terminated mother’s parental rights. The Court determined that the juvenile court relied on its prior findings terminating mother’s reunification services and those findings were not relevant to a determination of whether the parental benefit exception applied. The Court remanded the matter to the juvenile court for a new section 366.26 hearing in accordance with Caden C.
August 16, 2021
Attorney: Seth Gorman
Categories: Dependency Disposition Jurisdiction
[Published Opinion] The Court of Appeal found that the juvenile court’s amendments to the WIC section 300 petition to conform to proof produced at the jurisdictional hearing deprived appellant of due process. The amendments included allegations based on factual and legal theories not at issue in the original petition. The Court reversed the juvenile court’s jurisdictional order and the dispositional orders that derived from it and remanded the matter to the juvenile court for further proceedings.
August 9, 2021
Attorney: Tonja R. Torres
Categories: Delinquency Fines, Fees, and Victim Restitution
[Published Opinion] The Court of Appeal held that the juvenile court did not have authority under any provision of the Welfare and Institutions Code to require the minor or his family to pay for the Batterer’s Intervention Program, imposed as a condition of the minor’s probation. According to the Court, due to concerns about imposing costs on families that are already struggling, Senate Bill No. 190 (2017-2018 Reg. Sess.) (Stats. 2017, ch. 678) amended the Welfare and Institutions code to make most liability provisions inapplicable where, as here, the minor has been deemed a ward of the juvenile court.