CENTRAL CALIFORNIA APPELLATE PROGRAM

There was insufficient evidence to support dispositional findings that the Agency exercised due diligence to identify, locate, and contact relatives for placement. Minors were removed due to the parents’ substance abuse issues. Following removal, the Agency contacted both maternal and paternal grandmothers to inquire about Indian heritage. There was no information in the record that either of these relatives were asked about being available as a placement or other interest in participating in the case. The parents also identified a maternal aunt who was not contacted by the Agency. Minors were placed in a non-relative foster home and the court ordered family reunification services at the disposition hearing. Mother appealed and the reviewing court reversed the dispositional finding that the Agency exercised due diligence in locating relatives and otherwise affirmed in all other respects. As an initial consideration, the matter was not forfeited despite a failure to object below because the due diligence findings were never presented to the parents before or at the time they were entered. The record does not contain substantial evidence to support the due diligence findings. Section 309 requires the Agency to conduct an investigation to identify and locate all adult relatives of a child. It further requires the Agency to provide written notification, along with the JV-285 and JV-287 forms, within 30 days of removal to all adult relatives who are located. This written notice must include an explanation of the various options to participate in the care and placement of the child and support for the child’s family. Here, the record does not contain evidence that the Agency provided either grandmother with the necessary written notification and explanation of the various options to participate in the case. Further, the Agency was aware of other relatives, who they did not contact at all. This was error which cannot be deemed harmless. The matter must be remanded for the Agency to exercise due diligence to identify, locate, and contact relatives.

The full opinion is available on the court’s website here:
https://www.courts.ca.gov/opinions/documents/A167385.PDF

Trial court properly denied Penal Code section 1172.6 petition at the prima facie stage where petitioner had been convicted of provocative act murder in 2010 because, at that time, the law required the jury to find that each defendant personally harbored malice. After a high-speed chase and gun battle with CHP, Flores and a codefendant were convicted of the murder of their associate under the provocative act theory in 2010. Flores later filed a section 1172.6 petition arguing that the jury had been instructed in a manner that permitted them to find him guilty based on his aiding of the codefendant’s acts and without malice himself. The trial court found he had not made a prima facie case for relief, and Flores appealed. Held: Affirmed. By 2010, cases had established that provocative act murder required a showing that the defendant personally harbored malice. Thus, Flores could not make the required showing that his claim to relief was based on changes made to murder statutes in 2019. Any claim regarding the jury instructions could have been raised in the direct appeal from the underlying case, and section 1172.6 does not permit relitigation of those instructional claims.

The full opinion is available on the court’s website here: https://www.courts.ca.gov/opinions/documents/D081200.PDF

Trial court properly denied defendant’s second Penal Code section 1172.6 petition at the prima facie stage using the law of the case doctrine because there was no new evidence that could affect the appellate court’s earlier holding that defendant was ineligible for relief as a matter of law. In 1991, defendant was convicted of several offenses including murder, conspiracy to commit murder, and attempted murder. His first section 1172.6 petition was denied in 2019 after a (d)(3) hearing. The Court of Appeal affirmed the denial, holding his conviction of conspiracy to commit first degree murder rendered him ineligible as a matter of law. Defendant filed a second section 1172.6 petition after Senate Bill No. 775 went into effect, which was denied at the prima facie stage. Defendant appealed. Held: Affirmed. The doctrine of the law of the case holds that when the appellate court states “in its opinion a principle or rule of law necessary to the decision, that principle or rule becomes the law of the case and must be adhered to throughout its subsequent progress, both in the lower court and upon subsequent appeal.” However, People v. Harden (2022) 81 Cal.App.5th 45, 50, held that prior to a (d)(3) evidentiary hearing, the law of the case doctrine does not bar relief. The issue in Harden was whether the doctrine should apply to the Court of Appeal’s determination in an earlier opinion that there was insufficient evidence to sustain a finding that Harden was not the actual killer. Harden’s holding should be limited to prohibiting application of the law of the case doctrine at a prima facie hearing where the appellate court’s prior determination concerned sufficiency of evidence at trial. In the appeal from defendant’s first 1172.6 denial, the appellate court articulated a principle of law that defendant was ineligible for relief where he was convicted of first degree murder and conspiracy to commit first degree murder, which both involved the same victim, because the conspiracy conviction demonstrated the target offense was murder. Unlike Harden, defendant could not introduce new evidence that would affect the validity of this principle of law at an evidentiary hearing. And this principle of law was not altered by SB 775’s amendment of section 1172.6(a).