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March 7, 2021

Court Room Zoom Etiquette

As the result of the Covid-19 pandemic, Zoom Court Hearings have become common. Attorneys, parties, and other participants have participated in the virtual hearings in a more relaxed, informal, and at times in an inappropriate manner.

Maintaining the same decorum, formality, and respect for the court and with all other participants in the Zoom hearing shows respect for the judicial process and strengthens the presentation of your case.

Judges appear in black robes during virtual Zoom hearings. Attorneys and court participants should dress in a professional manner as in in a courtroom. Court participants would not wear T-shirts, jeans, hats, and similar clothing in a courtroom, they should also not dress in that manner while they are participating in a remote virtual Zoom hearing.

February 13, 2021

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

by Uthman Law Office

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.

January 9, 2021

2021-22 Governor’s Budget Summary for The California Department of Corrections and Rehabilitation (CDCR)

by Uthman Law Office

CDCR incarcerates people convicted of violent felonies, supervises those released to parole, and provides rehabilitation programs to help them reintegrate into the community with the tools to be drug-free, healthy, and employable members of society. The Budget proposes total funding of $13.1 billion ($12.7 billion General Fund and $345 million other funds) for the Department in 2021-22.

The COVID-19 Pandemic has impacted every aspect of prison operations and the 2020 Budget Act projected an overall adult inmate average daily population of 122,536 in 2020-21. The average daily adult inmate population for 2020-21 is now projected to be 97,950, a decrease of 20 percent from spring projections.

Some of this decrease is attributable to suspending county intake in response to the COVID-19 Pandemic, which when resumed, will increase the population. Current projections show the adult inmate population is trending downward and is expected to decrease by another 2,626 offenders between 2020-21 and 2021-22.

December 27, 2020

Resentencing of veterans under Section 1170.91 Is Unavailable in a Plea Bargain to a Stipulated Term of Years

by Uthman Law Office

People v. Brooks (Cal. Ct. App., Dec. 22, 2020, No. A158988) 2020 WL 7586811, at *1

Summary: Jason Brooks appealed the denial of a petition seeking recall of his sentence pursuant to Penal Code section 1170.91. Brooks agreed to a stipulated term of years in a plea bargain 13 years ago, and sought recall of his sentence under section 1170.91, subdivision (b)(1), invoking an amendment to section 1170.91 enacted two years ago. The Court of Appeal upheld the summary denial of his petition.

Facts:

November 22, 2020

Youthful Offenders Sentenced to LWOP Not Entitled to a Youth Offender Parole Hearing

by Uthman Law Office

In re Williams (Cal. Ct. App., Nov. 16, 2020, No. B303744) 2020 WL 6707335, at *1

Michael Williams was convicted by a jury of of two counts of first degree murder (Pen. Code, § 187, subd. (a))1 that he committed during a robbery when he was 21 years old. The jury found true the allegation that he personally used a firearm in the commission of the robbery (§ 12022.5, subd. (a)). It also found true the special circumstance allegations that he committed multiple murders (§ 190.2, subd. (a)(3)) and murder during the commission of robbery (§ 190.2, subd. (a)(17)). A court sentenced him to two consecutive terms of life without the possibility of parole (LWOP).

Summary: Williams, self-represented at the time, filed a petition for writ of habeas corpus on January 21, 2020. Williams asserted that the denial of a youth offender parole hearing under section 3051 violates his right to equal protection of the laws and constitutes cruel and unusual punishment. Under section 3051, subdivision (b), most inmates under age 26 at the time of their “controlling offense” become eligible for a youth offender parole hearing in their 15th, 20th, or 25th year of incarceration. The different statutory parole hearing dates depend on the offense. (§ 3051, subd. (b).) Section 3051, subdivision (h) is the exception to the rule. It excludes from youth offender parole hearings offenders, like petitioner, who are serving LWOP sentences for offenses committed “after the person had attained 18 years of age.”

November 11, 2020

Court Of Appeal Finds Mentally Ill Defendant Received Ineffective Assistance of Counsel Comments on over-incarceration of mentally ilL

by Uthman Law Office

People V. O’Hearn (Cal. Ct. App., Nov. 9, 2020, No. A158676) 2020 WL 6556592, at *1–2

Patrick Sean O’Hearn appealed from the denial of his motion to vacate a guilty plea to charges of making a criminal threat. The Court of Appeal held that O’Hearn received ineffective assistance of counsel in the in his plea bargain and reversed and and remanded with directions for the superior court to conduct a trial on the charges.

The Underlying Offense

November 8, 2020

Penal Code 1170.94 did not abolish implied malice for a DUI Murder

by Uthman Law Office

People v. Roldan (Cal. Ct. App., Oct. 30, 2020, No. B298570) 2020 WL 6375578, at *1

Summary: Marlon Roldan was convicted of second degree murder under an implied malice theory for killing a person while driving under the influence of alcohol (DUI). He filed a petition in the superior court for resentencing under Penal Code section 1170.95. He also requested appointment of counsel. The court found he was ineligible for relief as a matter of law because he was convicted under a theory of direct rather than vicarious liability. The court denied the petition without appointing counsel or holding an evidentiary hearing.

Roldan appealed claiming that Penal Code section 1170.95 should apply to his conviction for DUI murder, and he should have been appointed counsel to assist with his petition. The Court of appeal disagreed and affirmed the tail court’s ruling.

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 7, 2020

Re-sentencing under 1170(d)-limits to court’s authority

by Uthman Law Office

Court discretion under 1170(d)

Penal Code section 1170(d)(1) states: “The court resentencing under this paragraph may reduce a defendant’s term of imprisonment and modify the judgment, including a judgment entered after a plea agreement, if it is in the interest of justice.” (Pen. Code, § 1170(d)(1))

Does the court’s authority to “modify the judgment” include reducing or dismissing charges?

August 30, 2020

California Supreme Court states financial circumstances must be considered in setting bail (Humphrey)

by Uthman Law Office

The State Supreme Court posted an order on the docket of In re Humphrey (2018) 19 Cal.App.5th 1006, pending as # S247278, making Part III of the Court of Appeal decision in the case legal precedent. That part of the appellate opinion holds that due process requires consideration of the defendant’s financial circumstances in setting conditions of release. And it holds that bail schedules cannot be used by the court in setting conditions for release of a defendant when pretrial detention is not required.

Background of the case in San Francisco Superior Court

Humphrey, a retired shipyard laborer, then 63 years of age and a lifelong resident of San Francisco was arrested and charged with first degree robbery (Pen. Code, § 211),3 first degree residential burglary (§ 459), inflicting injury (but not great bodily injury) on an elder and dependent adult (§ 368, subd. (c)), and theft from an elder or dependent adult, charged as a misdemeanor. (§ 368, subd. (d).)