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San Francisco Criminal Lawyer Blog

May 15, 2022

Resisting a police officer is not a lesser included offense of wanton disregard while fleeing

by Uthman Law Office

THE PEOPLE, Plaintiff and Respondent, v. RODRIGO FUENTES, JR., Defendant and Appellant. (Cal. Ct. App., May 12, 2022, No. E075745) 2022 WL 1498334, at *1

Summary:Fuentes was convicted of both : (1) fleeing a police officer while driving with a willful or wanton disregard for the safety of persons or property (wanton disregard while fleeing) pursuant to Vehicle Code section 2800.2; and (2) resisting a police officer pursuant to Penal Code section 148, subdivision (a)(1).

On appeal, He raised an issue of first impression, contending that resisting a police officer is a lesser included offense of wanton disregard while fleeing. The court of appeal held that resisting a police officer is not a lesser included offense of wanton disregard while fleeing.

May 10, 2022

Attempted murder convictions reversed due to instruction in natural and probable consequences

by Uthman Law Office

People v. Perez (Cal. Ct. App., May 2, 2022, No. B300396) 2022 WL 1302282, at *1

Summary: Appellants Perez,Rosas and Sanchez engaged in a fist fight with two men outside of a liquor store in the middle of the day. During the fight, Perez retrieved a gun from his car and fired at the two men as they ran into a busy street. Perez’s shots missed the men, but struck three passing vehicles, including a four-year-old boy in the backseat of his mother’s car. Appellants challenge the application of the natural and probable consequences doctrine to Rosas’s and Sanchez’s convictions. The Coirt of Appeal held the attempted murder must be reversed

Senate Bill 1437 and the Natural and Probable Consequences Doctrine

May 8, 2022

San Francisco Drug Injunctions Are Unconstitutional

by Uthman Law Office

People v. Padilla-Martel (Cal. Ct. App., Apr. 29, 2022, No. A162872) 2022 WL 1284091, at *1

Summary: In these civil actions, the People, by the San Francisco City Attorney (City) allege defendants Christian Noel Padilla-Martel, Victor Zelaya, Jarold Sanchez, and Guadaloupe Aguilar-Benegas are street-level drug dealers whose drug-dealing activities in the Tenderloin neighborhood create a public nuisance (Civ. Code, §§ 3479, 3480) and violate the unfair competition law (Bus. & Prof. Code, § 17200 et seq.) (UCL).

Before trial, the City moved for preliminary injunctions against defendants that would prohibit them from entering a 50-block zone in the Tenderloin. The area is “facing a drug-related health crisis,” and the trial court found the City established the neighborhood is “rife with illegal drug-dealing.” The City has authority to seek injunctive relief to address public nuisances and UCL violations; defendants and the trial court that the City could enjoin individuals from engaging in illegal drug selling in the Tenderloin.

April 30, 2022

Parole hearing testimony may be used in 1170.95 evidentiary hearing

by Uthman Law Office

THE PEOPLE, Plaintiff and Respondent, v. RONALD RAY ANDERSON, Defendant and Appellant. (Cal. Ct. App., Apr. 28, 2022, No. A162633) 2022 WL 1261422, at *1

Summary: Anderson was convicted of two counts of first degree murder, two counts of robbery, and one count of burglary, and sentenced to 25 years to life. He appealed the denial of his Penal Code section 1170.95 petition, Anderson argued that the trial court erred by admitting in the section 1170.95 evidentiary hearing, testimony from Anderson’s parole suitability hearings. He argued that the testimony should have been excluded under People v. Coleman (1975) 13 Cal.3d 867 (Coleman). The Court of Appeal concluded that Anderson has not established that the trial court erred in considering testimony from his parole suitability hearings.

1170.95 petition

April 23, 2022

Sentence of LWOP for a 16-year old does not violate 8th Amendment

by Uthman Law Office

THE PEOPLE, Plaintiff and Respondent, v. CHRISTIAN BIRDSALL, Defendant and Appellant. (Cal. Ct. App., Apr. 22, 2022, No. A159555) 2022 WL 1198020

Summary: Birdsall was convicted of first degree murder committed by means of lying in wait and during a robbery and a burglary (§ 190.2, subd. (a)(15), (17)(A), (G)). The trial court sentenced Birdsall, who was 16 years old at the time of the crime, to life imprisonment without the possibility of parole (LWOP) for the murder, plus a consecutive five-year term for arson.Birdsall challenged his sentence on constitutional and other grounds. Because a youth offender parole hearing will be available to Birdsall during his 25th year of incarceration (when he will be 41 years old), the sentence imposed on him, although denominated LWOP, does violate the Eighth Amendment

Eighth Amendment Claims and sentencing under PC 190.5

April 20, 2022

Patdown Search of Detained Suspect For Weapons Requires Specific Facts

by Uthman Law Office

THE PEOPLE, Plaintiff and Appellant, v. JUAN PANTOJA, Defendant and Respondent. (Cal. Ct. App., Mar. 24, 2022, No. A162591) 2022 WL 1102119

Summary: Pantoja filed a motion to suppress evidence of a firearm found on his person when he was patted down during a traffic stop. The trial court granted defendant’s motion and then dismissed the case. The District Attorney appealed and the Court of Appeal affirmed

Factual And Procedural Background

April 16, 2022

DMV’s Administrative Hearings to Suspend Licenses after DUI’s Violates Due Process

by Uthman Law Office

Plaintiffs and Respondents, v. CALIFORNIA DEPARTMENT OF MOTOR VEHICLES et al., Defendants and Appellants. (Cal. Ct. App., Apr. 15, 2022, No. B305604) 2022 WL 1125370

DMV Administrative Hearings after DUI Arrests and challenge by California DUI Lawyers

The Department of Motor Vehicles (DMV) conducts administrative hearings to suspend a driver’s license after an arrest for driving under the influence. At these hearings, the DMV hearing officers act both as advocates for the DMV and as triers of fact. The DMV authorizes its managers to change hearing officers’ decisions, or order the hearing officers to change their decisions, without notice to the driver.

April 9, 2022

AB 124-Sentencing to lower term for childhood trauma-applies retroactively

by Uthman Law Office

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

April 2, 2022

Resentencing procedures under 1170.03 require notice, appointment of counsel and a hearing

by Uthman Law Office

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.

March 30, 2022

Court may not dismiss resentencing petition under 1170.95 based on statement of facts in appellate court decision

by Uthman Law Office

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.