Articles Posted in New Criminal Case Law

In re Foster (Cal. Ct. App., Nov. 1, 2022, No. A160713) 2022 WL 16570551, at *1

Summary: Foster, a state prison inmate, was sentenced in 1998 to an indeterminate term of 23 years to life. After the Board of Parole Hearings (the Board) found him suitable for parole in 2019, the Governor referred the decision to the Board for en banc reconsideration under Penal Code section 3041.1. The Board  ordered a rescission hearing to determine whether the grant of parole was improvident, based on the concerns raised by the Governor.

Under the regulations governing parole rescission hearings (and as he had been informed in writing by the Board), Foster requested the presence of evidentiary witnesses at the rescission hearing, including the author of the Comprehensive Risk Assessment that the Governor quoted from and relied on in his referral letter. The  Board denied Foster’s request for witnesses, the panel rescinded the grant of parole. Foster petitioned for a writ of habeas corpus, arguing that the Board improperly denied his request to subpoena witnesses for the rescission hearing

THE PEOPLE, Plaintiff and Respondent, v. CYNTHIA M. VARGAS, Defendant and Appellant. (Cal. Ct. App., Oct. 28, 2022, No. B313853) 2022 WL 15635424, at *2–3

Summary: Vargas was convicted of first degree murder (§ 187, subd. (a)) with use of a firearm (§ 12022.53, subds. (d), (e)(1)) and the jury also found that the offense was committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)).

Following the California Supreme Court’s decision in People v. Chiu (2014) 59 Cal.4th 155, Vargas filed a petition for writ of habeas corpus in the superior court on the ground that she could not be convicted of murder in the first degree under the natural and probable consequences doctrine. The People then agreed to accept resentencing for second degree murder. The superior court vacated Vargas’s first degree murder sentence and imposed a term of 40 years to life, consisting of 15 years to life for second degree murder plus 25 years to life for the firearm enhancement.

People v. Duran (Cal. Ct. App., Oct. 27, 2022, No. B317640) 2022 WL 15121275, at *1

Summary: Duran was convicted of second degree murder in 1984 for a gang-related stabbing petitioned for relief under Penal Code section 1172.6 (former section 1170.95).  During the  evidentiary hearing, the prosecution introduced statements that Duran made to a psychologist in 2013 during a parole risk assessment interview.  Duran argued that admitting his prior statements was error because those statements are (1) inadmissible under a judicially crafted “use immunity” doctrine, and (2) involuntary under the due process clause. Three courts have rejected the first argument. (See People v. Myles (2021) 69 Cal.App.5th 688, 704-706. (Myles); People v. Anderson (2022) 78 Cal.App.5th 81. (Anderson); People v. Mitchell (2022) 81 Cal.App.5th 575, 580-581. (Mitchell).) We join these courts, and publish because we walk a different path to get there. The Court of Appeal agreed with those courts and concluded that the Duran’s statement was in not involuntary. The Court of Appeal affirmed the trial court’s denial of relief.

 Section 1172.6 Petition

People v. Vizcarra (Cal. Ct. App., Oct. 19, 2022, No. D078869) 2022 WL 10869162, at *1

Summary:Vizcarra was convicted of the second degree murder he committed with three co-defendants.

The district attorney charged Vizcarra with  murder and arson of an inhabited structure and argued alternative theories of murder liability:  (1) he was liable for murder as a direct aider and abettor; and (2) he was liable for murder under the natural and probable consequences doctrine because he aided and abetted the commission of a target crime (assault by a deadly weapon or by means of force likely to produce great bodily injury) and murder was the natural and probable consequence of the target crime. Vizcarra was not prosecuted for murder under a felony-murder theory of liability.

People v. Hardin (Cal. Ct. App., Oct. 18, 2022, No. B315434) 2022 WL 10272623, at *1

Youth Offender Parol Hearings and Franklin Hearings

An individual convicted of a crime with a sentence of life without the possibility of parole before he was 18 years old is eligible for release on parole at a youth offender parole hearing at the beginning of the 25th year of incarceration. (Pen. Code, § 3051, subd. (b)(4).)

People v. Nguyen (2022) 82 Cal.App.5th 888 [298 Cal.Rptr.3d 877, 879–885, 82 Cal.App.5th 888]

Summary: Under the Interstate Agreement on Detainers (Detainer Agreement, Pen. Code, § 1389), a person serving a sentence of imprisonment in one participating state  who has a detainer for charges pending in another participating state may demand final disposition of those pending charges within 180 days of receipt of the demand.  The issue is whether another state’s unreasonable delay in notifying Nguyen of his California detainer and right to demand final disposition of the underlying charges

entitles him to dismissal of his pending charges. (§ 1389, art. III, subd. (a).) This is a question of federal law. Federal decisions hold  that dismissal is not a remedy for breach of this duty of prompt notice.

People v. Lastra (Cal. Ct. App., Aug. 31, 2022, No. 2D CRIM. B309895) 2022 WL 4493826, at *1, as modified on denial of reh’g (Sept. 28, 2022)

 Summary: College students faced criminal charges for marching through the City of San Luis Obispo following the murder of George Floyd, Jr. in 2020. The trial court granted their motion to recuse District Attorney Dan Dow’s office from the case because of Dow’s association with critics of the Black Lives Matter movement. (Penal Code, § 1424.) The District Attorney and Attorney General appealed.

The trial court stated: “[N]o defendant is entitled to a prosecutor to which they are politically or socially or ideologically aligned.” “The men and woman charged here,” however, “are entitled to a prosecution not clouded by political or personal advantage to the prosecutor.” Substantial evidence supported the trial court’s determination that Dow and his office were not likely to treat respondents fairly. The Court of Appeal affirmed the order granting respondents’ motion to recuse.

People v. Johnson (Cal. Ct. App., Oct. 4, 2022, No. C094491) 2022 WL 4905411, at *1–2

Summary: The trial court has broad discretion to impose a lesser uncharged firearm enhancement provided for by Penal Code section 12022.5, subdivision (a), when it exercises its discretion to strike a Penal Code section 12022.53, subdivision (b) firearm enhancement of conviction.  The Court of Appeal remanded  the case for a full resentencing hearing, where the trial court may consider exercise of its discretion and any other new laws related to sentencing that may apply.

Discretion to strike firearm enhancements under Senate Bill 620

THE PEOPLE, Plaintiff and Appellant, v. NOLAN TAKAO NONAKA, Defendant and Respondent. (Cal. Ct. App., Sept. 30, 2022, No. 2D CRIM. B313848) 2022 WL 4591497, at *1–3

Summary: The People appeal the denial of the motion for victim restitution, including attorney fees and costs, after Nonaka was convicted by plea of felony driving with a .08 blood alcohol level or higher causing bodily injury. The People contend the trial court erred when it concluded the civil settlement and release of liability signed by the victim in the civil case discharged Nonaka’s obligation to pay restitution in the criminal case. The Court of Appeal agreed and reversed.

Facts

ELECTRONIC FRONTIER FOUNDATION, INC., Plaintiff and Appellant, v.The SUPERIOR COURT OF SAN BERNARDINO COUNTY, Defendant and Respondent; San Bernardino County District Attorney’s Office et al., Real Parties in Interest and Respondents. E076778; Filed September 15, 20222022 WL 4243552 (Cal.App. 4 Dist.)

Summary:

Background: A Civil-liberties organization filed a petition to unseal search warrants and supporting affidavits under which county sheriff’s office was authorized to use cell-site simulators to obtain location data about cell phones. The Superior Court granted county’s motion for judgment on organization’s petition and held that the disputed materials should remain sealed. The Organization appealed.