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San Francisco Criminal Lawyer Blog

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).)

August 23, 2020

Odor and unsealed bag of marijuana in car provide probable cause to search the passenger’s purse.

by Uthman Law Office

People v. McGee, 2020 WL 4783643 (Cal.App. 3 Dist.); filed 7/28/20; published 8/18/20

Facts and Procedural Background

On July 28, 2018, Stockton Police Officers initiated a traffic stop of McGee’s car after noticing its registration had expired. The officers noted the scent of unburned marijuana. McGee denied having any marijuana in the car. But an officer saw an unsealed bag of marijuana in the passenger’s cleavage. The officers informed McGee they were going to search the car. McGee did not consent to a search. The bag of marijuana was seized from the passenger. A zipped purse on the passenger floorboard was searched for “anything illegal, any contraband that could be in the vehicle.” A loaded handgun was seized from the purse.

August 17, 2020

Confrontation clause requires that the scientist who performed a drug analysis testify

by Uthman Law Office

People v. Ogaz, 2020 WL 4581253 (Cal.App. 4 Dist., 2020) 07/14/2020; Modified 08/10/2020

Summary: Ignacio Ogaz appealed his conviction for and argued that his Sixth Amendment right to confront adverse witnesses was violated by the admission of drug testing evidence. The Court of Appeal held that the confrontation clause requires that the defendant have an opportunity to cross-examine the scientist who performed the analysis.

Facts: During a search of Ogaz, a Police Officer found a large baggie in his pocket which contained a brown powder that looked and smelled like heroin and a white crystal substance that looked like methamphetamine. The Officer weighed the powder and crystals and determined they had a combined weight of 10.5 grams. A presumptive test he performed showed that the powder tested positive for heroin, and the crystals tested positive for methamphetamine.

August 12, 2020

Enhancements for drug priors must be stricken if not final on appeal: For plea bargains-a new deal must be reached

by Uthman Law Office

People v. Barton (Cal. Ct. App., Aug. 4, 2020, No. F076599) 2020 WL 4462790

Facts: Barton pleaded guilty to furnishing methamphetamine (Health & Saf. Code, § 11379, subd. (a)) and maintaining a place for the sale of a controlled substance (id., § 11366). Barton admitted to having twice been convicted of violating section 11379. In her plea agreement, Barton waived her appeal rights and she received a stipulated prison sentence of eight years eight months, which included a pair of three-year enhancements for the drug-related priors.

Barton entered her plea on September 25, 2017 and was sentenced on October 23, 2017. On October 11, 2017, Governor Brown approved Senate Bill No. 180 (2017–2018 Reg. Sess.) which went into effect on January 1, 2018. The legislation amended section 11370.2 by eliminating its three-year enhancements for most drug-related prior convictions.

August 2, 2020

Marin County Superior Court sets briefing schedule for San Quentin COVID 19 habeas petitions

by Uthman Law Office

A Marin County Superior Court judge has ordered the California Department of Corrections and Rehabilitation (CDCR) to respond by August 4, 2020, in an expedited briefing schedule, to petitions requesting immediate release of 21 people at San Quentin State Prison. The petitions were filed by inmates at San Quentin in pro per and by and attorneys representing inmates, including the San Francisco Public Defender.

The petitions address the COVID 19 outbreak at San Quentin that has infected over 2,000 people living and working at San Quentin, resulting in staffing shortages, lockdown, and fear for those incarcerated and their families. The COVID-19 infection rate in San Quentin is 63% while California’s infection rate is 1%.

“Incarcerated people at San Quentin are scared to death,” said Marin County Public Defender Jose Varela. “Judge Howard has ordered CDCR to respond. And his seeking quick input from all parties reflects the important human rights issues at the heart of this litigation.”

July 26, 2020

Timeliness in filing a habeas action: Supreme Court rules 120 days between filing is not substantial delay.

by Uthman Law Office

Robinson v. Lewis, 2020 WL 4045925, Supreme Court of California, S228137, July 20, 2020

A challenge to a state judgment of conviction through a petition for a writ of habeas corpus in state court must present each claim in a timely fashion. However, California law does not fix a determinate deadlines. An indeterminate ‘reasonableness’ standard is used to assess whether a claim was presented in a timely manner. In this case, Robinson, a prison inmate filed a petition for a writ of habeas corpus challenging his state court judgment in the superior court. Sixty days after the court denied the petition, he filed a new petition for a writ of habeas corpus in the Court of Appeal raising the same claims. The Court of Appeal denied the petition and he filed a new original petition for a writ of habeas corpus in the Supreme Court. After a denial by the Supreme Court, he filed a petition for a writ of habeas corpus in federal district court challenging the same judgment. The petition was denied, and Robinson appealed to the United States Court of Appeals for the Ninth Circuit.

Federal time limits and timely filing in state courts-Ninth Circuit Request for clarification.

July 19, 2020

City of Berkeley Approves Measure Removing Police From Traffic Stops

by Uthman Law Office

The Berkeley City Council approved a measure that would create a new Department of Transportation and remove police from traffic stops. The use of unarmed public works officials to enforce traffic laws is aimed at reducing racial profiling and law enforcement contacts that can escalate into violence, especially for Black drivers.

The Berkeley City Council measure removing traffic from law enforcement is the first of its kind in the U.S. and is likely to be emulated as other cities adopt public safety reforms following the death of George Floyd in May.

Studies have shown Black motorists are much more likely to be stopped by police than whites for minor traffic infractions that turn fatal. For example, Philando Castile, 32, was shot and killed after he was pulled over for a busted tail light during a traffic stop in 2016 in Minnesota. Sandra Bland, 28, died in a jail cell three days after being stopped for failing to signal when changing lanes in Texas in 2015.

July 5, 2020

Remand to strike enhancements can void plea bargain

by Uthman Law Office

People v. Stamps, 2020 WL 3525176 (California Supreme Court; S255843: June 25, 2020)

Summary:

Stamps agreed to a plea bargain that included a prior serious felony enhancement (Pen. Code, § 667, subd. (a)). While his appeal was pending, a new law went into effect that gave the trial court authority to strike a serious felony enhancement in furtherance of justice (Pen. Code, § 1385, subd. (a)), a power it did not previously have. The California Supreme Court held that a certificate of probable cause (Pen. Code, § 1237.5) was not necessary to claim on appeal that the new law applied to him retroactively;

June 28, 2020

Resumption of DMV Road Tests

by Uthman Law Office

The California DMV resumed behind-the-wheel testing beginning Friday, June 26. Drivers and DMV instructors will be required to wear face masks and drivers will be asked to lower two windows to increase air flow in the car. Pre-test instructions will be given outside the car. DMV examiners will also wear gloves and place plastic covers on the passenger seat and floorboard as precautions against transmission of the coronavirus. Applicants will be required to wear a face covering and answer screening questions before starting the exam. Temperature checks will be added to safety protocols in the coming weeks.

There has been a three month backlog of behind-the-wheel testing as a result of the DMV closing all of its 169 field offices and cancelling all appointments in March due to the coronavirus pandemic. Some offices were reopened in May and the rest resumed operations in June, but no behind-the-wheel tests have taken place since mid-March.

The DMV will automatically reschedule all canceled driving test appointments and anticipates it will take several weeks to complete testing for previously canceled tests. Appointments for new behind-the-wheel tests will not be available until previously canceled tests are completed.

June 22, 2020

Prosecutor in infraction trial need not appear to oppose motion to suppress

by Uthman Law Office

The People, Plaintiff and Appellant, v. Lula Sophia Gong Cotsirilos et al., Defendants and Respondents., 2020 WL 3396240 (Cal.App. 4 Dist.) (Cal.App. 4 Dist., 2020)

Summary:

Two defendants cited for underage alcohol infractions filed a motion to suppress the evidence. The prosecution did not file an opposition or appear at the suppression hearing but did subpoena the two investigating officers. The superior court granted the suppression motions based solely on the People’s failure to respond or appear. The appellate division of the superior court agreed, concluding that while no written opposition was required, the People’s failure to respond or appear compelled suppression.