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Since 1985 San Francisco Traffic Law Clinic

People v. Moseley (Cal. Ct. App., Oct. 8, 2024, No. G062697) 2024 WL 4440601

Summary: Mosley was convicted of voluntary manslaughter as lesser included offense of murder. Mosley appealed. The Court of Appeal held that trial court was statutorily required to consider Mosley’s service-related Post Traumatic Stress Disorder (PTSD) in determining eligibility for probation and in sentencing.

Service related PTSD as a factor in mitigation

THE PEOPLE, Plaintiff and Respondent, v. PAUL HERSOM, Defendant and Appellant. (Cal. Ct. App., Sept. 26, 2024, No. A168129) 2024 WL 4313709, at *1

Summary:  Hersom was convicted by a jury in San Francisco Superior Courtof felony counts of vehicle burglary and being a felon in possession of tear gas and a misdemeanor count of receiving stolen property. Hersom, incarcerated in jail did not appear on the second day of jury selection. The bailiff informed the trial court he had received notice that Hersom refused to be transported, and the court found that Hersom’s absence was voluntary under Penal Code 1043.1. The court denied the parties’ request for a continuance and proceeded with jury selection. Hersom failed to appear the following day and the court continued all further substantive proceedings until he returned. Other than one day of jury selection, Hersom was present for the whole trial.

On appeal, Hersom claims that his constitutional right to be present at a critical stage of the trial was violated. Hersom claims that the trial court lacked sufficient evidence to find that he was voluntarily absent and abused its discretion by not granting the requested continuance.

People v. Turntine (Cal. App. Dep’t Super. Ct., June 24, 2024, No. CA296018) 2024 WL 4143869

Summary: The trial court did not abuse its discretion in declining to exclude expert testimony of toxicologist who testified that all individuals were impaired for purposes of driving at .05% BAC;

Statement of the Case

Clarke v. Gordon (Cal. Ct. App., Sept. 12, 2024, No. G062856) 2024 WL 4163081, at *1

Summary: Clarke appeals from the judgment which denied his petition for a writ of mandate which challenged an administrative decision of the California Department of Motor Vehicles (DMV) to suspend his driver’s license. An administrative per se (APS) hearing conducted by the DMV following his arrest for driving under the influence (DUI) resulted in the suspension of his license. Clarke argues the administrative decision must be reversed because (1) the manner in which the DMV conducted the administrative hearing violated due process as determined in California DUI Lawyers Assn. v. Department of Motor Vehicles (2022) 77 Cal.App.5th 517, 532-533, 292 Cal.Rptr.3d 608 (DUI Lawyers); and (2) his refusal to submit to either a breath or blood test should be excused. The Court of Appeal agreed with the first contention and reversed the trial court’s denial of his petition for a writ of mandate and on remand directed the court to grant the petition.

DMV Hearings and Due Process

In re TRAVIS LANELL MONTGOMERY on Habeas Corpus. (Cal. Ct. App., Sept. 6, 2024, No. D083970) 2024 WL 4099744, at *1

Summary: Montgomery appealed an order denying a motion for discovery he made in connection with a postjudgment petition for writ of habeas corpus that sought relief for alleged violations of the California Racial Justice Act of 2020 (RJA or Act). The Court concluded the order is not appealable and dismissed the appeal.

In 2008, a jury found Montgomery guilty of two counts of conspiracy to commit robbery and one count each of robbery, attempted robbery, and possession of a firearm by a felon; found true firearm and gang enhancement allegations; and found true Montgomery had two prior juvenile adjudications that constituted strikes under the “Three Strikes” law. The trial court sentenced Montgomery to prison for a term of 61 years to life that was later reduced to 26 years to life. (People v. Henderson (Oct. 5, 2010, D054493) [nonpub. opn.].)

People v. Howard (Cal. Ct. App., Aug. 27, 2024, No. H050156) 2024 WL 3947977, at *1

Summary: Howard shot a man at a nightclub in San Jose. At trial, Howard testified that he acted in self-defense. A jury convicted him of second degree murder.

After the jury’s verdict but prior to sentencing, Howard filed a motion alleging the prosecutor had violated the California Racial Justice Act of 2020 (Stats. 2020, ch. 317, § 3.5; Pen. Code, § 7451) (hereafter RJA or Act). Howard asserted the prosecutor violated the RJA by cross-examining him about his connection to East Palo Alto. The trial court denied the motion, deciding Howard failed to make a prima facie showing of an RJA violation, and sentenced him to prison for 19 years to life.

People v. Ramirez (Cal. Ct. App., Aug. 20, 2024, No. G063224) 2024 WL 3869450, at *1

Summary: Under the Fourth Amendment to the United States Constitution, “once a vehicle has been lawfully detained for a traffic violation, a police officer may order the driver to exit the vehicle without any articulable justification.” (People v. Hoyos (2007) 41 Cal.4th 872 (Hoyos), citing Pennsylvania v. Mimms (1977) 434 U.S. 106, 111, fn. 6 (Mimms).)

Here, two police officers on routine patrol when they stopped a car for a traffic violation. About three minutes into the stop, Booth ordered the driver, Ramirez, out of his car. As Ramirez was being removed from the car, Driscoll saw a handgun just behind the driver’s seat.

People v. Moore (Cal. Ct. App., Aug. 9, 2024, No. A167918) 2024 WL 3754712, at *1–2

Summary: Moore pleaded no contest to the charge of stalking in violation of Penal Code section 646.9, subdivision (a).  Moore appealed, challenging his permanent revocation of probation following his admission to a probation violation on the grounds of ineffective assistance of counsel, based on his attorney’s failure to request pretrial mental health diversion (§ 1001.36). Moore was required to obtain a certificate of probable cause to pursue this appeal. (§ 1237.5; Cal. Rules of Court, rule 8.304(b).) The contrary holding in People v. Hill (2021) 59 Cal.App.5th 1190, 274 Cal.Rptr.3d 153 has been implicitly abrogated by our Supreme Court in People v. Braden (2023) 14 Cal.5th 791, 308 Cal.Rptr.3d 846, 529 P.3d 1116. The Court of Appeal dismissed the appeal because Moore failed to obtain the requisite certificate of probable cause.

Background

THE PEOPLE, Plaintiff and Respondent, v. SCOTLANE McCUNE, Defendant and Appellant. (Cal., Aug. 8, 2024, No. S276303) 2024 WL 3736802, at *1–2

Summary: California law mandates that individuals who are convicted of a crime must be ordered to make full restitution to their victims “in every case, regardless of the sentence or disposition imposed.” (Cal. Const., art. I, § 28, subd. (b)(13)(B); see Pen. Code, § 1202.4.) When a victim’s losses are not ascertainable at the time the defendant is sentenced, the sentencing court must issue a restitution order providing “that the amount shall be determined at the direction of the court.” (Pen. Code, § 1202.4, subd. (f).) The court then “shall retain jurisdiction over a person subject to a restitution order for purposes of imposing or modifying restitution until such time as the losses may be determined.” (Id., § 1202.46.)

Here, McCune was placed on felony probation for five years and ordered at sentencing to pay victim restitution in an amount to be determined. McCune’s probation period was shortened by new legislation capping felony probation at two years. The trial court then fixed the amount of victim restitution.  McCune argues the order came too late because, under the probation statute, the trial court’s authority to modify the order of probation ended once his term of probation had expired. (Pen. Code, § 1203.3.)

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