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February 2, 2020

Re-sentencing under Penalty Code section 1170.95 applies only to murder convictions-not manslaughter

The People, Plaintiff and Respondent, v. Daniel Cervantes, Defendant and Appellant.(Court of Appeal, Second District, Division 6); No. B298077; Filed 1/30/2020; 2020 WL 486867

Re-sentencing under Penal Code section 1170.95

Penal Code section 1170.95, subdivision (a) provides that , a person convicted of first degree or second degree murder under the “felony murder or murder under a natural and probable consequences theory may file a petition with the court that sentenced the petitioner to have petitioner’s murder conviction vacated and to be resentenced on any remaining counts.”

January 17, 2020

Incidental movement of a victim during a robbery is not kidnapping

by Uthman Law Office

People v. Taylor (Cal. Ct. App., Jan. 6, 2020, No. B293881) 2020 WL 5698

Summary: A jury convicted Isaac Taylor of kidnapping to commit robbery as well as of the robbery itself. Taylor used a gun to back David Ho four steps towards a dark alley, where Taylor took Ho’s wallet. Based on Ho’s four steps backwards, the jury convicted Taylor of kidnapping. The Court of Appeal reversed the kidnapping conviction.

Penal code section 209- kidnapping to commit robbery-aggravated kidnapping

January 12, 2020

Establishing a prima Facie Case for relief under SB 1437

by Uthman Law Office

People v. Lewis, 2020 WL 57841 (Cal.App. 2 Dist.) (Cal.App. 2 Dist., 2020)

Appeal of trial court denial of petition for re-sentencing without appointment of counsel

Defendant Vincent E. Lewis was convicted of first degree premeditated murder in 2012, his conviction was affirmed on appeal in 2014. In January 2019, defendant filed a petition for resentencing under Penal Code 2 section 1170.95 and requested the appointment of counsel. The trial court, relying on the court of Appeal decision in determined that defendant was ineligible for relief and denied the petition without appointing counsel or holding a hearing. Defendant appealed.

January 8, 2020

Right to confront witnesses violated when computer monitors blocks defendant’s view of a witness

by Uthman Law Office

People v. Arredondo, 2019 WL 6834808 Supreme Court of California, S244166, December 16, 2019

John Arredondo was convicted of lewd acts on child under age 14, lewd act on child under age 16, oral copulation with a child under age 14, and sexual penetration with child under age 14 and was sentenced to 33 years plus 275 years to life in state prison.

Supreme Court grants review

December 14, 2019

Police need a warrant to enter a home when shots are fired in a high crime area

by Uthman Law Office

THE PEOPLE, Plaintiff and Respondent, v. ADAN RUBIO, Defendant and Appellant. (Cal. Ct. App., Dec. 12, 2019, No. A152455) 2019 WL 6797405

Summary: Police may not break down a door and enter an apartment when the owner refuses to invite them in to investigate after shots were fired in a high crime neighborhood. The Fourth Amendment requires circumstances that would cause a reasonable person to believe that someone in the apartment stood in need of emergency aid, or that some other exception to the warrant requirement applied. The need to render emergency aid justifies warrantless entry only where officers have “specific and articulable facts” showing that an intrusion into the home was necessary. (People v. Ovieda (2019) 7 Cal.5th 1034, 1043 (Ovieda).) It is not enough that officers seek to rule out “the possibility that someone … might require aid.” (Id. at p. 1047.)

Adan Rubio’s appealed his conviction by plea to possession of a controlled substance while armed with a firearm (Health & Saf. Code, § 11370.1), a plea entered after the trial court denied his motion to suppress the evidence found in his apartment (Pen. Code, § 1538.5).1 The Court of Appeal concluded that the evidence was gathered in violation of his Fourth Amendment rights. The Court reversed his conviction and remanded to allow defendant to withdraw his plea.

December 5, 2019

SB 1437 applies to attempted murder convictions based on the natural and probable consequences doctrine

by Uthman Law Office

People v. Medrano, 2019 WL 6487272 (Cal.App. 5 Dist.), 21 (Cal.App. 5 Dist., 2019)

Natural and probable consequences doctrine and attempted murder

The Fifth District Court of Appeal held that Senate Bill 1437 not only abrogated the natural and probable consequences doctrine to murder charges but attempted murder charges also. The Fifth District departed from decisions made by other Appellate Courts in People v. Lopez (2019) 38 Cal.App.5th 1087, review granted November 13, 2019, S258175, and People v. Munoz (2019) 39 Cal.App.5th 738 (Munoz), review granted November 26, 2019, S258234. However, it agreed with Lopez and Munoz that the petitioning process for re-sentencing added in section 1170.95 does not apply to attempted murder. Instead, the Court reviewed their claim under In re Estrada (1965) 63 Cal.2d 740, 48 Cal.Rptr. 172, 408 P.2d 948 and concluded defendants are entitled to relief on direct appeal. The Court reversed the judgments of conviction for attempted murder as to Medrano and Martinez.

November 24, 2019

Police may seize a dashboard camera without a warrant after an accident

by Uthman Law Office

People v. Tran, 2019 WL 5958335 (Cal.App. 4 Dist.) (Cal.App. 4 Dist., 2019)

Background:

Robert Tran was convicted of reckless driving, in violation of Vehicle Code section 23103, subdivision (a) and was sentenced to three years’ probation with 30 days in custody.

November 1, 2019

Police cannot automatically conduct a pat down search of a robbery suspect for weapons

by Uthman Law Office

In re Jeremiah S. (Cal. Ct. App., Oct. 18, 2019, No. A155856) 2019 WL 5302782, at *1–7

The robbery, detention, pat search and arrest arrest of Jeremiah S.

On July 2, 2018, Ornin Gosuwin was carrying a shoulder bag and holding an iPhone as she walked on Spear Street toward Market Street in San Francisco. Two young men, both wearing hoodies, came from around the corner. Gosuwin stopped to let the young men pass. One of them pushed her left shoulder and caused her to fall to the ground and both stood over her and pulled her bag and phone away. The assailants continued on Market Street in the direction of the Embarcadero.

October 20, 2019

Mayor Breed Calls for Closure of SF County Jail #4 by 2021

by Uthman Law Office

History of San Francisco County Jail #4

The San Francisco County Jail at 850 Bryant St. is formally known as County Jail #4 is described by the Sheriff’sDepartment as “a traditional linear jail facility located on the 7th floor of the Hall of Justice. This jail is the maximum security facility of the San Francisco County Jail system. The rated capacity for this jail is 402 inmates and it houses both sentenced and pre-sentenced inmates. Deputy Sheriffs monitor inmate conduct and patrol in cells located on each side of a central corridor or “mainline”. This jail offers inmate programs such as parenting, independent study, alcoholics anonymous, and narcotics anonymous. Parenting skills classes and inmate-child visitation is also offered to mend and heal broken family relationships.״

(See: City and County of San Francisco Sheriff’s Department https://www.sfsheriff.com/jail_info.html)

October 4, 2019

Presence of a small amount of marijuana in a car does not provide probable cause for a vehicle search.

by Uthman Law Office

People v. Lee, No. D073740, 2019 WL 4871480, at *3–10 (Cal. Ct. App. Oct. 3, 2019)

Vehicle stop and warrantless search of the vehicle

In 2017 San Diego Police Officers Robles and Cooper stopped a gold-colored Cadillac DeVille with no front license plate and tinted windows in violation of Vehicle Code section 26708. They initiated a traffic stop and Officer Robles asked the driver, defendant Brandon Lee, for his driver’s license. Lee said he did not have his license with him. Robles instructed Lee to step out of the vehicle and performed a pat-down search to confirm he did not have any sort of identification.