New Criminal Case Law

January 2, 2023

A Franklin Hearing does affect finality of judgment for resentencing

People v. White (Cal. Ct. App., Dec. 27, 2022, No. C095640) 2022 WL 17958728, at *1

Summary: On May 2006, 25-year old White, while drunk and speeding, struck a car stopped on the shoulder of the highway with its hazard lights on, killing the driver and injuring two others. A jury found White guilty of second degree murder, gross vehicular manslaughter while intoxicated, driving under the influence causing injury, and driving with a blood alcohol level of .08 percent or higher causing injury, with enhancements for causing and inflicting great bodily injury on multiple victims. The trial court sentenced White to an indeterminate term of 15 years to life for second degree murder, and a consecutive determinate middle term of two years for driving under the influence with injury.

In 2020, White requested and received a hearing pursuant to People v. Franklin (2016) 63 Cal.4th 261, 202 Cal.Rptr.3d 496, 370 P.3d 1053 (Franklin) to make a record of information relevant to an eventual youthful offender parole hearing. He filed a motion to vacate his sentence and remand for resentencing under In re Estrada (1965) 63 Cal.2d 740 (Estrada) based on amendments to Penal Code section 654 following the passage of Assembly Bill No. 518. The trial court denied the motion.

December 31, 2022

Youth is a factor in totality of circumstances in determining major participant who acted with reckless indifference to human life

by Uthman Law Office

THE PEOPLE, Plaintiff and Respondent, v. ALIJONDRO JONES, Defendant and Appellant. (Cal. Ct. App., Dec. 23, 2022, No. A162634) 2022 WL 17884050, at *1

Summary: Jones appealed from an order denying his motion for resentencing under Penal Code section 1170.95 after he was convicted of first degree murder under a felony-murder theory. The court found him ineligible for relief because he was a major participant who acted with reckless indifference to human life. On appeal, Jones contends (1) the trial court was precluded from relying on evidence that he was the actual shooter because the jury found not true the allegations that he personally used a firearm; (2) insufficient evidence supports the trial court’s determination that he was a major participant who acted with reckless indifference to human life; (3) the trial court erred in not considering his youth as a factor in making that determination; and (4) defense counsel provided ineffective assistance by not raising the “collateral estoppel” argument and by not raising the issue of Jones’s youth after the court’s ruling. In a supplemental opening brief, Jones contends the order must be reversed due to a recent decision in this appellate district, People v. Cooper(2022) 77 Cal.App.5th 393 (Cooper).

Because the trial court’s ruling occurred before the decision in In re Moore (2021) 68 Cal.App.5th 434 (Moore), it cannot be presumed from the record that the trial court considered evidence of Jones’s youth, which Mooreheld to be “a relevant factor” in deciding whether a defendant was a major participant who acted with reckless indifference to human life. (Id. at p. 454, italics added.) The Court of Appeal remanded for the court’s consideration of all relevant factors consistent with prevailing law.

December 30, 2022

Court applied wrong standard in denying Veteran mental health diversion

by Uthman Law Office

THE PEOPLE, Plaintiff and Respondent, v. THOMAS WHITMILL, Defendant and Appellant. (Cal. Ct. App., Dec. 23, 2022, No. B318582) 2022 WL 17883593

Summary: Sixty-one-year-old Whitmill appealed the denial of his pretrial motion for mental health diversion of his criminal prosecution. He argued that because he is an honorably discharged veteran who suffers from a severe mental disorder, he meets the eligibility requirements for pretrial mental health diversion under Penal Code section 1001.36.

The Court of Appeal ruled that the trial court erred when it denied Whitmill’s motion and remanded to the trial court with instructions to grant the motion for diversion.

December 28, 2022

Warrantless car search upheld where smell of burnt marijuana

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People v. Castro (Cal. Ct. App., Nov. 18, 2022, No. B318174) 2022 WL 17662954, at *1

Summary: Castro appealed from a judgment entered after he pleaded no contest to carrying a loaded, unregistered handgun in a vehicle. He argued that a warrantless search of his vehicle, during which a police officer discovered the handgun, did not fall within the automobile exception to the Fourth Amendment’s warrant requirement, and the trial court should have suppressed the evidence from the vehicle search on his motion under Penal Code section 1538.5. The Court of Appeal rejected his contention and affirmed the judgment.

Castro’s Detention and the Vehicle Search

December 23, 2022

Remand for resentencing required under SB 467 after imposition of upper term where case was not final

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THE PEOPLE, Plaintiff and Respondent, v. BRANDON RIO SHERMAN, Defendant and Appellant. (Cal. Ct. App., Dec. 15, 2022, No. A162766) 2022 WL 17726696, at *1

December 21, 2022

Jury instructions which allow conviction based on imputed malice establish a prima facile case for resentencing under 1172.6

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People v. Maldonado (Cal. Ct. App., Dec. 8, 2022, No. A161817) 2022 WL 17494961, at *1

Summary: Maldonado appealed from the trial court’s denial of his petition for resentencing pursuant to Penal Code section 1172.6 (former section 1170.95). In 2013, Maldonado was convicted of first degree murder and the jury was not instructed on the natural and probable consequences and felony murder doctrines. Maldonado argued that the jury could have imputed malice to him based solely on his participation in a crime, relying on the jury instructions for aiding and abetting, implied malice, and lying-in-wait murder, and on the analysis in People v. Langi (2022) 73 Cal.App.5th 972 (Langi). The Court of Appeal agreed that Maldonado established a prima facie case for resentencing relief, and reversed and remanded for the trial court to issue an order to show cause.

Background: Maldonado was charged with first degree murder (§ 187, subd. (a)), with a special circumstance allegation that the murder was committed by means of lying in wait (§ 190.2, subd. (a)(15)). The jury was instructed on two theories of first degree murder: the murder was willful, deliberate and premeditated; and the murder was committed by lying in wait. The jury was also instructed on direct aiding and abetting. (See CALCRIM No. 401.) The jury was not instructed on felony murder or the natural and probable consequences doctrine.

December 17, 2022

Decision by CDCR Secretary to rescind recommendation of recall of sentence does not moot appeal

by Uthman Law Office

People v. E.M. (Cal. Ct. App., Dec. 6, 2022, No. H049467) 2022 WL 17423592, at *1

Summary: In December 2019, the Secretary of the California Department of Corrections and Rehabilitation (the Secretary) issued a letter to the trial court recommending that it recall E.M.’s sentence of over 79 years and resentence him based on recent ameliorative legislative changes in the sentencing law. The trial court denied recall on the ground that the legislative changes did not apply to E.M.’s case because his sentence was final.

E.M. appealed the trial court’s denial of recall, arguing that recent changes in the sentencing law do not apply to his case. After briefing on the case, the Secretary issued a new letter to the trial court rescinding its recommendation of recall and resentencing. The Attorney General then argued that this appeal is moot because the Secretary’s letter of rescission eliminated the trial court’s jurisdiction to recall the sentence on remand.

December 15, 2022

Police cannot search car’s locked glove box during parole search of backseat passenger

by Uthman Law Office

Claypool v. Superior Court of Sacramento County (Cal. Ct. App., Dec. 6, 2022, No. C096620) 2022 WL 17422679, at *1

Summary: Claypool was charged with possession of a firearm by a felon, unlawful possession of ammunition by a felon, unauthorized alteration of a firearm, and carrying a loaded firearm in a vehicle, along with an enhancement for a prior strike pursuant to the three strikes law. The evidence was found in a locked glove box in Claypool’s car during a parole search of a back seat passenger. Claypool, who was both the driver and owner of the car, was neither on searchable probation nor parole at the time. Police used a key to open the glove box and found a gun containing ammunition.

Claypool brought a petition for writ of mandate or prohibition to challenge the denial of a motion to suppress evidence and dismiss the charges.

December 12, 2022

Defendant who overdosed on drugs found to be voluntarily absent from trial

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People v. Ramirez (Cal., Dec. 5, 2022, No. S262010) 2022 WL 17410568, at *1

Summary: Although a criminal defendant has a constitutional right to be present at trial, once trial has commenced in the defendant’s presence in a noncapital felony case, the trial court may continue the trial in the defendant’s absence under Penal Code section 1043, subdivision (b)(2) provided that the absence is voluntary. The California Supreme Court granted review to decide whether the Court of Appeal erred when it upheld the trial court’s finding that defendant Ramirez was voluntarily absent under section 1043(b)(2).

Ramirez failed to appear in court on the second day of trial. Earlier that morning, emergency medical personnel and police officers had been dispatched to defendant’s home after a possible drug overdose was reported. According to a police officer who responded to the home, Ramirez was taken by his mother to a hospital rather than to court. The trial court ruled that defendant was voluntarily absent under the circumstances, and it continued trial without him in accordance with section 1043(b)(2).

December 10, 2022

Confession given by 18-year old after spending night in a holding cell ruled involuntary

by Uthman Law Office

THE PEOPLE, Plaintiff and Respondent, v. ISMAEL AVALOS, Defendant and Appellant. (Cal. Ct. App., Nov. 4, 2022, No. G059107) 2022 WL 17401172

Summary: Avalos, an 18-year-old high school student, was arrested on a murder charge and questioned him in an interrogation room at a police station. During the interview, a forensic technician removed his shirt, pants, socks, and shoes. The technician gave him a paper gown to wear. After about five hours of questioning by police, Avalos said, “I wanna talk to a lawyer.” After further dialog, a detective said, “I respect your decision that you wanna talk to a lawyer, but if for some reason you want to change your mind and you wanna talk to me, you can, just ask for me. I don’t care if it’s 2:00, 3:00 in the morning I’ll come back. Okay? Because I care about you getting your story the right way out. Okay?”

Avalos spent the night in a holding cell and then one of the jailers he wanted to speak to the detectives again. Avalos was brought back to the same interrogation room for a second interview, wearing the same paper gown from the day before. Avalos asked, “You guys don’t have any socks do you?” An officer asked him if he was cold, Avalos said that it had been colder where he was being held. Avalos asked, “Whatever I tell my lawyer, he’s going to tell you the same thing, right?” Avalos waived Miranda rights, and admitted shooting the murder victim, stating: “I, I self-defended myself, you know?”