New Criminal Case Law

March 27, 2021

Resisting arrest requires that police are acting lawfully

People v. Southard (Cal. Ct. App., Mar. 24, 2021, No. A157236) 2021 WL 1114283, at *1

Summary: John Wesley Southard was involved in two traffic stops in December 2018 and was charged with seven counts of obstructing a peace officer and forcible resistance of an officer—charges that require the People to prove the officers were acting lawfully—and one misdemeanor count of possession of methamphetamine. Southward was convicted on all charges and was sentenced to five years four months in prison.

On appeal, Southard argued that the trial court: (1) gave a special instruction based on language from an appellate opinion that acted to remove the lawful performance element of the resisting charges; (2) gave CALCRIM No. 250 that acted to remove the knowledge element of the charged offenses.The Court of Appeal agreed with these arguments and concluded the errors were prejudicial. The Court reversed the convictions.

March 25, 2021

California Supreme Court Affirms Right To Affordable Bail

by Uthman Law Office

In The Supreme Court Of California

In Re Kenneth Humphrey On Habeas Corpus; S247278First Appellate District, Division Two A152056;San Francisco City And County Superior Court 17007715; March 25, 2021

In an unanimous decision, the California Supreme Court held that:“No person should lose the right to liberty simply because that person can’t afford to post bail.” “The median bail amount in California ($50,000) is more than five times the median amount in the rest of the nation (less than $10,000).”

March 21, 2021

Restitution for civil attorney fees paid by a victim may be ordered in a criminal case

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People v. Marrero (2021) 60 Cal.App.5th 896

Summary: Armando Milan Marrero pleaded guilty to driving under the influence of alcohol and causing bodily injury to another person (Veh. Code, § 23153, subd. (a)). The trial court suspended imposition of sentence for five years and granted formal probation. Two victims retained an attorney and paid him $375,000 in accordance with their contingency fee agreement, after a settlement was reached.

In Marrero’s criminal case, the prosecutor requested that the victims be awarded $375,000 in restitution based on the actual fee paid to the attorney. The court ordered restitution in the amount of $358,047.79, covering $350,000 in attorney fees and approximately $8,000 in travel expenses.

March 6, 2021

Attempted DUI with priors is a felony

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People v. Cummings (Cal. Ct. App., Mar. 3, 2021, No. C084505) 2021 WL 803686, at *1–5

Summary:Cummings entered a plea of no contest to attempted driving with a blood alcohol-level of 0.08 percent or more within 10 years of a felony conviction for driving under the influence (DUI) (Pen. Code, § 664/Veh. Code, §§ 23152, subd. (b), 23550.51) and admitting two prior DUI convictions.

Cummings was granted five years of formal probation.

February 28, 2021

Lifer Granted Elderly Parole Need Not Serve Sentence For In-Prison Conduct

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In re Hoze (Cal. Ct. App., Feb. 25, 2021, No. A158399) 2021 WL 732072, at *1

Summary: Johnnie Hoze was 67 years old and had served nearly four decades in state prison on an indeterminate life sentence when the Board of Parole Hearings (“Board”) found him suitable for parole under the Elderly Parole Program (Pen. Code, § 3055). Before he could be released, however, the Board determined that Hoze must serve additional sentences for two offenses he committed in prison, consistent with ssection 1170.1(c). Hoze filed a habeas corpus petition alleging he was entitled to immediate release under the Elderly Parole Program. The trial court granted the petition. The Court of Appeal agreed with the trial court: Hoze is not required to serve his sentences for in-prison offenses because a grant of parole under section 3055 supersedes section 1170.1(c).

Facts:

February 21, 2021

DMV may use blood test results to suspend licenses even if there is a violation of blood test regulations

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WILLIAM LEE GERWIG, JR., Plaintiff and Appellant, v. STEVE GORDON, as Director, etc., Defendant and Respondent. (Cal. Ct. App., Feb. 19, 2021, No. D076921) 2021 WL 650274

Summary: When the Department of Motor Vehicles (DMV) holds an administrative hearing to consider whether to suspend a driver’s license, it can usually support its case by relying on an Evidence Code presumption that chemical blood tests were properly conducted, and the results are thus reliable. Here, the Court of Appeal concluded that licensees rebut that presumption only when they cast doubt on the integrity of the test. A violation of governing regulations that has only a tenuous connection to the accuracy of the results is not enough. Here, plaintiff proved a regulatory violation with only an indirect and speculative relationship to the manner in which the blood test was conducted, and to the reliability of the test results. The Court affirmed.

BACKGROUND

February 13, 2021

1437 proceedings: At prima facie stage trial court should not determine facts to dismiss the petition

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People v. Duchine (Cal. Ct. App., Feb. 9, 2021, No. A157980) 2021 WL 447105, at *1

Summary: John Allen Duchine was convicted of first degree murder in 1987. In 2019, he filed a petition for resentencing under Penal Code section 1170.95,1 [Senate Bill 1437 (S.B. 1437)] with a declaration asserting he was charged and convicted of first degree murder under a felony murder theory, but that he did not, with intent to kill, aid, abet or assist the actual killer in the commission of murder, and that he could not be convicted of first degree murder under the new murder statutes (amended sections 188 or 189). After appointing counsel for Duchine and reviewing briefs submitted by his counsel and the district attorney, the trial court denied the petition.

Duchine contends the trial court erred by denying relief at the prima facie stage on the ground that there was substantial evidence from which a reasonable trier of fact could reach a guilty verdict of first degree murder by engaging in judicial fact-finding at the prima facie stage rather than holding an evidentiary hearing.

February 6, 2021

Decision of Court of Appeal is part of the Record of Conviction in a 1170.95 Hearing

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People v. Clements (Cal. Ct. App., Feb. 4, 2021, No. E073965) 2021 WL 388834, at *1

Summary: In 1989, Jody Ann Clements solicited her ex-husband and her boyfriend to assault her 16-year-old brother who then two killed the brother by stabbing him and bludgeoning him with a rock. A jury convicted Clements of second degree murder in 1990 after the trial judge instructed them on both natural and probable consequences and implied malice theories of murder.

In 2018, the Legislature enacted Senate Bill No. 1437 (2017-2018 Reg. Sess.) (SB 1437), which amended the definition of murder to eliminate the natural and probable consequences doctrine. (Pen. Code, §§ 188, subd. (a)(3); 189, subd. (a)) The Legislature also added a new provision to the Penal Code, which establishes a procedure for vacating murder convictions if they could not be sustained under the amended definition of murder. (§ 1170.95; Stats. 2018, ch. 1015, § 4.)

February 3, 2021

Trail Court Must Evaluate Prosecution’s Reasons for Exclusion of Black Jurors

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People v. Collins (Cal. Ct. App., Feb. 2, 2021, No. F076883) 2021 WL 343935

Summary: Collins was convicted of two counts of murder as a result of driving while impaired

On appeal, he claims that the trial court erred in denying his motion to challenge the prosecutor’s excusal of a black prospective juror during jury selection.

January 28, 2021

Lifers entitled to habeas relief for excessive incarceration must serve parole period

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In re Palmer (Cal., Jan. 28, 2021, No. S256149) 2021 WL 279621, at *1

Summary: The California and federal Constitutions bar the infliction of punishment that is grossly disproportionate to the offender’s individual culpability. (U.S. Const., 8th Amend.; Cal. Const., art. I, § 17.) The courts, “as coequal guardian[s] of the Constitution, (are) to condemn any violation of that prohibition.” (In re Lynch (1972) 8 Cal.3d 410, 414 (Lynch).) When an inmate claims a sentence is excessive because of one or more parole denials is the question at the heart of this case.

William M. Palmer II first sought release on parole from the Board of Parole Hearings (Board) in 1995. Following the Board’s 10th denial, Palmer filed a petition for writ of habeas corpus claiming that the 30 years he had already served on a life sentence for an aggravated kidnapping committed when he was a juvenile was constitutionally excessive. Before the Court of Appeal could adjudicate the habeas petition, the Board found him suitable for parole and ordered him released. (In re Palmer (2019) 33 Cal.App.5th 1199, 1202–1203 (Palmer).) The Court of Appeal subsequently agreed with Palmer that his now-completed term of imprisonment had become unconstitutional. (Id. at pp. 1207–1222.) Because that term had already been served, however, the Court of Appeal focused its order of relief on a different target. The court reasoned that Palmer was “entitled to release from all forms of custody, including parole supervision.” (Id. at p. 1224.)