Articles Posted in New Criminal Case Law

THE PEOPLE, Plaintiff and Respondent, v. LAMONTE SHERMALE BANNER, Defendant and Appellant. In Re LAMONTE SHERMALE BANNER, On Habeas Corpus. (Cal. Ct. App., Apr. 8, 2022, No. F079770) 2022 WL 1055186

Background: Banner was convicted of two counts of attempted robbery (§ 212.5). The charges included allegations of prior strike and prior serious felony convictions. (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d), & 667, subd. (a).) He was sentenced to serve nine years in state prison, calculated as the middle term of two years for attempted robbery, doubled for the prior strike conviction, plus five years for the prior serious felony conviction.

AB 124 Applies Retroactively

People v. McMurray (Cal. Ct. App., Mar. 30, 2022, No. C090767) 2022 WL 949796, at *1–2

Summary: McMurray appealed the trial court’s denial of a recommendation made by the Secretary (Secretary) of the California Department of Corrections and Rehabilitation (CDCR) under former Penal Code section 11 that the trial court consider recalling defendant’s sentence and resentencing him in light of changes made to section 12022.53 which gave judges discretion to strike enhancements for the personal use of a firearm. The trial court denied resentencing without notice or the appointment of counsel. McMurray claimed that the trial court violated his constitutional rights and committed reversible error.

The People argued that the trial court lacked jurisdiction because was final before the amendments to section 12022.53 became operative. The People also argued that the trial court lacked authority to modify the sentence because defendant admitted the section 12022.53 enhancement as part of a negotiated plea, and the trial court cannot disregard the terms of the plea. The People also asserted that McMurray did not have a right to counsel or a right to provide additional information.

THE PEOPLE, Plaintiff and Respondent, v. MARCOS ELI FLORES, Defendant and Appellant. (Cal. Ct. App., Mar. 29, 2022, No. F080584) 2022 WL 910096, at *1

Summary: In 2010 Flores pled no contest to the second degree murder (Pen. Code,1 § 187, subd. (a).) and the trial court sentenced petitioner to 36 years to life.

In 2019, Flores filed a petition for resentencing pursuant to section 1170.95. The trial court denied the petition on the ground petitioner had not set out a prima facie claim for relief.

In re Brown (Cal. Ct. App., Mar. 14, 2022, No. B313533) 2022 WL 766252, at *1

Summary: The Supreme Court held in In re Humphrey (2021) 11 Cal.5th 135(Humphrey) that conditioning pretrial release from custody solely on whether an arrestee can afford bail is unconstitutional. When nonmonetary conditions of release cannot adequately protect the safety of the public and victims and ensure an arrestee’s appearance at trial and bail is necessary, the trial court “must consider the arrestee’s ability to pay the stated amount of bail—and may not effectively detain the arrestee ‘solely because’ the arrestee ‘lacked the resources’ to post bail.” When no option other than refusing pretrial release can reasonably protect the State’s compelling interest in victim and community safety, the Humphrey Court continued, “a court must first find by clear and convincing evidence that no condition short of detention could suffice and then ensure the detention otherwise complies with statutory and constitutional requirements.” The trial court may not make continued detention depend on the arrestee’s financial condition. The superior court denied Brown’s motion, filed after the decision in Humphrey, to reduce his $2.45 million bail to an amount he could afford.

Brown remained in custody awaiting trial . The court of appeal granted his petition for writ of habeas corpus and ordered the trial court to hold a new hearing at which it is to consider nonmonetary alternatives to money bail, determine Brown’s ability to afford the amount of money bail if it is to be set, and follow the procedures and make the findings necessary for a valid order of detention.

LONGEN TAN, Petitioner, v. THE SUPERIOR COURT OF SAN MATEO COUNTY, Respondent; THE PEOPLE, Real Party in Interest. (Cal. Ct. App., Mar. 10, 2022, No. A163715) 2022 WL 714708, at *1

 Summary: Tan was charged with misdemeanor driving under the influence. Effective January 1, 2021, the Legislature enacted a new law, Penal Code section 1001.95, making defendants charged with misdemeanors generally eligible for diversion at the discretion of the trial judge. The law expressly exempts several offenses from eligibility for diversion. It does not exclude driving under the influence.  But Vehicle Code section 23640 provides that driving under the influence (DUI) is ineligible for diversion.

Tan filed a petition for misdemeanor diversion under section 1001.95, arguing that section 1001.95 superseded Vehicle Code section 23640. Tan’s petition was denied in the  trial court and he filed a petition for writ of mandate in the court of appeal, asking it to direct the trial court to vacate its order denying his petition. At the time he filed his petition, no Court of Appeal had decided the issue presented and there was a split of authority between two published superior court appellate division opinions as to the availability of diversion in cases of misdemeanor DUI. After briefing, Division Three of the Fourth Appellate District issued its opinion in Grassi v. Superior Court (2021) 73 Cal.App.5th 283 (Grassi), concluding that section 1001.95 and Vehicle Code section 23640 can be harmonized, and that misdemeanor diversion is unavailable to defendants charged with DUI. The court of appeal found it  difficult and close question.The court held that the two statutes can be reconciled and that misdemeanor convictions for DUI are not eligible for statutory diversion. The court denied the petition

Hernandez-Valenzuela v. Superior CourtDocket: A163992(First Appellate District) Opinion Date: March 4, 2022

Facts: Hernandez-Valenzuela (collectively “petitioners”) sought a writ of mandate or prohibition requiring respondent Superior Court of the City and County of San Francisco to dismiss his case for violating his speedy trial rights under Penal Code section 1382.2 Petitioner contend there was no good cause to continue their cases past the statutory deadline. We disagree and therefore deny each of their petitions.

The COVID-19 Pandemic and San Francisco Court operations

People v. Williams (Cal. Ct. App., Feb. 24, 2022, No. B311161) 2022 WL 556906, at *1–6

Facts:  Williams filed  a “Petition for Modification of Sentence (Pursuant to P.C. 1170(d)(1).)” Asking the trial the court to modify his 1996 judgment based on “charging and sentencing policies” adopted by Los Angeles County District Attorney George Gascón. In Williams quoted Penal Code section 1170, subdivision (d)(1)1 and argued his 1996 sentence could be modified or recalled because “the district attorney’s office considers that only 15 years of the 25 years [he] already served is more than enough” and the court could consider, under the same statutory provision, his good conduct in prison.

The trial court denied defendant’s section 1170, subdivision (d)(1) petition for modification of sentence without appointing counsel for defendant. A minute order memorializing the court’s ruling explains the petition was “denied as untimely” (coming, as it did, well after the 120-day period and without the requisite accompanying recommendation).

People v. Hampton (Cal. Ct. App., Feb. 10, 2022, No. C093270) 2022 WL 405368, at *1

Summary: Hampton was found guilty of first degree murder and two counts of robbery and sentenced  to a term of 33 years to life The jury could not reach a verdict on the robbery-murder special-circumstance allegation, and that allegation was dismissed on the People’s motion for insufficient evidence.

Hampton filed a petition for resentencing under Penal Code section 1170.95 and requested appointment of counsel. The trial court granted the petition finding the dismissal of the special-circumstance allegation for insufficient evidence was equivalent to an acquittal. The People appeal contending the dismissal of the special-circumstance allegation was not an acquittal. The Court of Appeal affirmed the order granting the petition for resentencing.

People v. Speck (Cal. Ct. App., Feb. 2, 2022, No. C093273) 2022 WL 304910

Summary: A jury found Speck guilty of felony vehicle theft (Veh. Code, § 10851, subd. (a)) and receiving stolen property (Pen. Code, § 496d) with special allegations that the Honda was valued at over $950. The jury found defendant guilty as charged of both counts and the value allegations. The trial court sentenced him to the upper terms of three years in “county prison” for unlawfully driving a vehicle and three years for receiving stolen property, with sentence on the latter count stayed pursuant to section 654. Speck  appealed claiming that the trial court prejudicially erred in failing to instruct the jury on mistake of fact. (CALCRIM No. 3406.)

The Court of appeal agreed and reversed the judgment.

People v. Sek (Cal. Ct. App., Feb. 1, 2022, No. B309003) 2022 WL 292614, at *1

Summary: Assembly Bill No. 333, effective January 1, 2022, changed the law regarding gang enhancements under Penal Code 1 section 186.22.  The new law requires that to  to prove that the defendant committed a crime for the benefit of a criminal street gang, the prosecution must show that the benefit to the gang was “more than reputational.” (Penal Code § 186.22, subd. (g).) Examples of a common benefit that are more than reputational may include, but are not limited to, financial gain or motivation, retaliation, targeting a perceived or actual gang rival, or intimidation or silencing of a potential current or previous witness or informant.

Sek, who was convicted of attempted murder  for his role in a gang shooting,  argued that this law applies retroactively to him. He argues that because the jury instructions did not reflect this change in the law, the jury’s findings on the gang enhancements in his case must be reversed. The court agreed..