New Case Law

December 4, 2021

Bench Warrant Can Issue Even Without Showing Defendant Had Notice

Valderas v. Superior Court of San Diego County (Cal. Ct. App., Nov. 30, 2021, No. D078735) 2021 WL 5575569, at *1

Summary: Valderas, facing several felony charges, did not appear at a status conference/trial call on October 20, 2020. It was the second consecutive court appearance that Valderas missed. The trial court issued a bench warrant for Valderas but ordered the warrant to be held until December 8, 2020, the date on which the court had set a readiness conference. The court sent notice to Valderas by mail to his last known address. When Valderas did not appear at the December 8 hearing, the court lifted its hold on the bench warrant.

Valderas seeks a writ of mandamus to recall the December 8 bench warrant. The court denied Valderas’s relief.

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 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

March 14, 2021

US Supreme Court: Non Permanent Residents Must Show They Were Not Convicted Of A Crime Of Moral Turpitude in Immigration Removal Proceedings

by Uthman Law Office

Pereida v. Wilkinson (U.S., Mar. 4, 2021, No. 19-438) 2021 WL 816351, at *1–2

Summary:Immigration officials initiated removal proceedings against Clemente Avelino Pereida for entering and remaining in the country unlawfully. Mr. Pereida sought to establish his eligibility for cancellation of removal under the Immigration and Nationality Act (INA). 8 U.S.C. §§ 1229a(c)(4), 1229b(b)(1). Nonpermanent residents must prove that they have not been convicted of specified criminal offenses. § 1229b(b)(1)(C) for eligibility. Mr. Pereida was convicted of a crime under Nebraska state law. See Neb. Rev. Stat. § 28–608 (2008). Analyzing whether Mr. Pereida’s conviction constituted a “crime involving moral turpitude” that would bar his eligibility for cancellation of removal, §§ 1182(a)(2)(A)(i)(I), 1227(a)(2)(A)(i), the immigration judge found that the Nebraska statute stated several separate crimes, some of which involved moral turpitude and one—carrying on a business without a required license—which did not. Nebraska had charged Mr. Pereida with using a fraudulent social security card to obtain employment, so the immigration judge concluded that Mr. Pereida’s conviction was likely not for the crime of operating an unlicensed business, and the conviction likely constituted a crime involving moral turpitude. The Board of Immigration Appeals and the Eighth Circuit concluded that the record did not establish which crime Mr. Pereida stood convicted of violating. Mr. Pereida bore the burden of proving his eligibility for cancellation of removal and the ambiguity in the record meant he had not carried that burden and he was ineligible for discretionary relief.

Holding: Under the INA, certain nonpermanent residents seeking to cancel a lawful removal order bear the burden of showing they have not been convicted of a disqualifying offense. A nonpermanent resident has not carried that burden when the record shows he has been convicted under a statute listing multiple offenses, some of which are disqualifying, and the record is ambiguous as to which crime formed the basis of his conviction.

October 25, 2020

San Quentin Prison acted with deliberate indifference, failing to protect inmates from COVID-19

by Uthman Law Office

In re Von Staich (Cal. Ct. App., Oct. 20, 2020, No. A160122) 2020 WL 6144780, at *1–2

Petition claiming San Quentin does not adequately protect against COVID-19 infection

Ivan Von Staich, incarcerated at San Quentin State Prison,serving a sentence of 17 years to life for a second degree murder consecutive to a 13-year sentence for the attempted murder.

October 18, 2020

Veterans with military related trauma eligible for resentencing if sentenced before January 1,2015

by Uthman Law Office

People v. Valliant (Cal. Ct. App., Oct. 14, 2020, No. G058568) 2020 WL 6054332, at *1–6

Summary: Valliant petitioned pursuant to Penal Code section 1170.91, subdivision (b),1 which authorizes recall of sentencing for military veterans who suffer from military-related trauma and substance abuse, who did not have those factors considered as mitigating factors when they were originally sentenced. The court denied his petition on the basis that section 1170.91, subdivision (b)(1)(B) (subdivision (b)(1)(B)) authorizes resentencing relief only for persons who were sentenced before January 1, 2015. Valliant who was sentenced in March of 2015.

Valliant argued that resentencing relief is available to all veterans whose military-related trauma was not considered at their initial sentencing, without regard to when that sentencing took place. The Court of Appel affirmed the order. Subdivision (b)(1)(B) clearly specifies that its resentencing relief is limited to cases in which “[t]he person was sentenced prior to January 1, 2015.” It further specifies that “[t]his subdivision shall apply retroactively, whether or not the case was final as of January 1, 2015” (italics added). The statutory limitation is unequivocal.

October 12, 2020

Pre-sentence Conduct Credits Earned in County Jail

by Uthman Law Office

People v. Brown (2020) 52 Cal.App.5th 899, 904–910 [267 Cal.Rptr.3d 79, 84–89, 52 Cal.App.5th 899, 904–910], review filed (Sept. 8, 2020)

Brown was convicted by jury of murder and at his sentencing, the trial court resentenced him for a cocaine possession case. He was sentenced to consecutive terms and the court and applied Penal Code section 2933.21 (which prohibits defendants convicted of murder from earning presentence conduct credits) and Brown received no presentence conduct credits. It then awarded 923 days of actual custody credits.

Brown challenges the application of section 2933.2 to the period of custody following his cocaine possession charge and preceding his murder charge. He also challenges the award of actual custody credits. The Court of Appeal addressed these issues.

October 4, 2020

Liberty interest in recommendation for re-sentencing under PC 1170(d) gives right to present information to court

by Uthman Law Office

People v. McCallum (Cal. Ct. App., Sept. 30, 2020, No. B301267) 2020 WL 5810212, at *1

Resentencing under Penal Code 1170(d)(1)

Penal Code section 1170, subdivision (d)(1) authorizes the trial court to modify a defendant’s sentence upon a recommendation from the Secretary of the Department of Corrections and Rehabilitation (Department), the Board of Parole Hearings, or the district attorney to “recall the sentence and commitment previously ordered and resentence the defendant in the same manner as if they had not previously been sentenced ….”

August 17, 2020

Confrontation clause requires that the scientist who performed a drug analysis testify

by Uthman Law Office

People v. Ogaz, 2020 WL 4581253 (Cal.App. 4 Dist., 2020) 07/14/2020; Modified 08/10/2020

Summary: Ignacio Ogaz appealed his conviction for and argued that his Sixth Amendment right to confront adverse witnesses was violated by the admission of drug testing evidence. The Court of Appeal held that the confrontation clause requires that the defendant have an opportunity to cross-examine the scientist who performed the analysis.

Facts: During a search of Ogaz, a Police Officer found a large baggie in his pocket which contained a brown powder that looked and smelled like heroin and a white crystal substance that looked like methamphetamine. The Officer weighed the powder and crystals and determined they had a combined weight of 10.5 grams. A presumptive test he performed showed that the powder tested positive for heroin, and the crystals tested positive for methamphetamine.

August 12, 2020

Enhancements for drug priors must be stricken if not final on appeal: For plea bargains-a new deal must be reached

by Uthman Law Office

People v. Barton (Cal. Ct. App., Aug. 4, 2020, No. F076599) 2020 WL 4462790

Facts: Barton pleaded guilty to furnishing methamphetamine (Health & Saf. Code, § 11379, subd. (a)) and maintaining a place for the sale of a controlled substance (id., § 11366). Barton admitted to having twice been convicted of violating section 11379. In her plea agreement, Barton waived her appeal rights and she received a stipulated prison sentence of eight years eight months, which included a pair of three-year enhancements for the drug-related priors.

Barton entered her plea on September 25, 2017 and was sentenced on October 23, 2017. On October 11, 2017, Governor Brown approved Senate Bill No. 180 (2017–2018 Reg. Sess.) which went into effect on January 1, 2018. The legislation amended section 11370.2 by eliminating its three-year enhancements for most drug-related prior convictions.