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People v. Secrease (Cal. Ct. App., Apr. 19, 2021, No. A158342) 2021 WL 1538008, at *1

 Summary:In 1998, a jury convicted Secrease of first degree murder and carjacking, finding true a special circumstance charge under section 190.2, subdivision (a)(17)(L) that the murder was committed during a carjacking. (§ 215, subd. (a).) He received a sentence of life in prison without the possibility of parole.

Secrease filed a verified section 1170.95 resentencing petition. The district attorney responded by filing a motion to deny the petition for failure to make a prima facie showing of eligibility for section 1170.95 resentencing relief, and Secrease filed a reply. The court denied the petition without issuing an order to show cause. Secrease appealed and the Court of Appealas decided whether a felony-murder special-circumstance finding by the jury that convicted Secrease in 1998 bars him from pleading a prima facie case for section 1170.95 resentencing relief as a matter of law. The Court agreed with the opinions that have held a prior felony-murder special-circumstance finding does not bar section 1170.95 relief.

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Todd Ashker v. Gavin Newsom,  United States District Court For The Northern District Of California, Case 4:09-cv-05796-CW,  Filed 04/09/21

 Background:

Judge Claudia Wilken extended a settlement agreement in a class action for violations of 42 U.S.C. § 1983 brought by plaintiffs Todd Ashker and Danny Troxell, who had lived in solitary confinement in Pelican Bay’s SHU for over two decades. On December 9, 2009, they filed a pro se lawsuit challenging the conditions of their confinement charging  CDCR officials with violating their First, Fifth, Eighth, and Fourteenth Amendment rights.

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Smith v. LoanMe, Inc. (Cal., Apr. 1, 2021, No. S260391) 2021 WL 1217873, at *1

Summary: Under Penal Code section 632.7(a), it is a crime when a person “without the consent of all parties to a communication, intercepts or receives and intentionally records, or assists in the interception or reception and intentional recordation of, a communication transmitted between” a cellular or cordless telephone and another telephone.

A violation of section 632.7 also can be pursued in a civil lawsuit.

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People v. Brugman (Cal. Ct. App., Mar. 30, 2021, No. D076658) 2021 WL 1186143

 Summary: Brugman was convicted of  assault with a deadly weapon was based on his act crashing his vehicle into the car being driven by His former girlfriend as she tried to enter the driveway to her mother’s apartment complex. The jury was required to find that Brugman was “aware of the facts that would lead a reasonable person to realize that a battery would directly, naturally and probably result from his conduct.” (Williams, supra, 26 Cal.4th at p. 788, 111 Cal.Rptr.2d 114, 29 P.3d 197.) The jury was instructed with CALCRIM No. 875 that to find Brugman’s vehicle constituted a deadly weapon, it was required to find that Brugman’s vehicle was “used in such a way that it [was] capable of causing and likely to cause death or great bodily injury.” (See People v. Perez (2018) 4 Cal.5th 1055, 1065, 232 Cal.Rptr.3d 51, 416 P.3d 42 [“a ‘deadly weapon’ under section 245, subdivision (a)(1) is ‘ “any object, instrument, or weapon which is used in such a manner as to be capable of producing and likely to produce, death or great bodily injury,” ’ ” and “cases have recognized a vehicle as a deadly weapon based on the manner it was used”].)

The Court of Appeal fling conviction for assault with a deadly weapon is supported by substantial evidence.

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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.

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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).”

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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.

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Pereida v. Wilkinson (U.S., Mar. 4, 2021, No. 19-438) 2021 WL 816351, at *1–2

Summary:Immigration officials initiated removal proceedings against Clemente Avelino Pereida for entering and remaining in the country unlawfully. Mr. Pereida sought  to establish his eligibility for cancellation of removal under the Immigration and Nationality Act (INA). 8 U.S.C. §§ 1229a(c)(4), 1229b(b)(1). Nonpermanent residents must prove that they have not been convicted of specified criminal offenses. § 1229b(b)(1)(C) for eligibility. Mr. Pereida was convicted of a crime under Nebraska state law. See Neb. Rev. Stat. § 28–608 (2008). Analyzing whether Mr. Pereida’s conviction constituted a “crime involving moral turpitude” that would bar his eligibility for cancellation of removal, §§ 1182(a)(2)(A)(i)(I), 1227(a)(2)(A)(i), the immigration judge found that the Nebraska statute stated several separate crimes, some of which involved moral turpitude and one—carrying on a business without a required license—which did not. Nebraska had charged Mr. Pereida with using a fraudulent social security card to obtain employment, so the immigration judge concluded that Mr. Pereida’s conviction was likely not for the crime of operating an unlicensed business, and the conviction likely constituted a crime involving moral turpitude. The Board of Immigration Appeals and the Eighth Circuit concluded that the record did not establish which crime Mr. Pereida stood convicted of violating. Mr. Pereida bore the burden of proving his eligibility for cancellation of removal and the ambiguity in the record meant he had not carried that burden and he was  ineligible for discretionary relief.

Holding: Under the INA, certain nonpermanent residents seeking to cancel a lawful removal order bear the burden of showing they have not been convicted of a disqualifying offense. A nonpermanent resident has not carried that burden when the record shows he has been convicted under a statute listing multiple offenses, some of which are disqualifying, and the record is ambiguous as to which crime formed the basis of his conviction.

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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.

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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.

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