Does issuing an OSC to correct part of a sentence render the sentence non-final for purposes of ameliorative laws?
Does the issuance of an order to show cause to review one aspect of a defendant's sentence in habeas corpus proceedings render applicable all ameliorative laws taking effect after the defendant's judgment became final? Held: A grant of habeas corpus relief as to a portion of a sentence does not necessarily obligate the trial court to conduct a full resentencing…
Whether the Defendant Meaningfully Understood the Immigration Consequences of Her Plea
Does the totality of the circumstances establish that defendant meaningfully understood the immigration consequences of her plea? Held: "When ruling on a section 1473.7(a)(1) motion, a court should consider the totality of the circumstances and focus on the defendant’s subjective understanding. Evidence that a defendant received the immigration consequences advisement required by section 1016.5 before entering their plea is relevant,…
Does the prohibition on electronic recording of certain proceedings violate the CA Constitution when an official court reporter is unavailable?
This case presents the following issue: Does the prohibition on electronic recording of certain proceedings in Government Code section 69957, subdivision (a) violate the California Constitution when an official court reporter is unavailable and a litigant cannot afford to pay a private court reporter? Held: “[L]ike other mandatory statutes that 'do not themselves contain an exception for needy litigants,' courts…
Speedy Trial – When the defendant is “imprisoned” so that they may demand trial within 90 days.
This case presents the following issues: (1) Has a defendant who has been sentenced to a prison term and is housed in a county jail pending transport to state prison “entered upon a term of imprisonment in a state prison,” so that they may demand a trial on other, pending charges within 90 days pursuant to Penal Code section 1381?…
PC 231.7 – Proper Procedure For Peremptory Challenge of Prospective Juror
The issue to be briefed and argued is limited to the following: Did the trial court properly overrule defendant's Code of Civil Procedure section 231.7 objection to the People's peremptory challenge of a prospective juror? Held: "We now clarify two general principles about behavior-based reasons under section 231.7, subdivision (g). First, to overcome the presumption that a behavior-based reason is…
Must an LPS conservatee demonstrate prejudice in establishing a delay violated Due Process and Equal Protection?
This case presents the following issue: Must a conservatee demonstrate prejudice to establish that a 362-day delay in initiating a trial in a Lanterman-Petris-Short Act conservatorship proceeding violates due process and equal protection? Held: "[W]e conclude that a due process violation based on pretrial delay in LPS conservatorship proceedings is not a structural error and may be found harmless on…
PC 1172.75 – Is a defendant entitled to resentencing when a prior prison term enhancement was imposed but punishment was stricken?
Is a defendant entitled to resentencing under Penal Code section 1172.75 when the judgment in the defendant’s criminal case includes a prior prison term enhancement that was imposed but for which punishment was stricken? Held: "We held in People v. Rhodius (2025) 17 Cal.5th 1050 (Rhodius) that such an enhancement was 'imposed' even though the enhancement was stayed rather than…
Does Penal Code section 2900.5, subdivision (b) entitle the defendant to duplicative presentence custody credits when sentenced to concurrent terms on multiple cases at a single hearing?
When a defendant is sentenced to concurrent terms on multiple cases jointly resolved at a single hearing, does Penal Code section 2900.5, subdivision (b) entitle the defendant to duplicative presentence custody credits for time spent in custody on one or more of the cases, but not others? Held: "[C]ustody credit is not automatically applied across multiple, distinct prosecutions merely because…
What prejudice standard is required under the RJA?
The court vacated submission in this automatic appeal and directed the parties to file supplemental briefs addressing the following questions: (1) Once a violation of Penal Code section 745, subdivision (a)(2) is established on direct appeal, is an analysis for harmless error required under article VI, section 13 of the California Constitution before relief can be granted under Penal Code…
RJA – Affect and Remedies on Direct Appeal
This is an automatic appeal. On 12/6/23, the Court ordered supplemental briefing on the following issue: What is the effect, if any, of the recent amendment to Penal Code section 745, subdivision (b) on the issues in this case? (Stats. 2023, ch. 464, § 1.) On 6/11/25, the Court ordered supplemental briefing on the issue of whether harmless error analysis…
Should public agencies be allowed to bring “blanket challenges” against particular judges under CCP § 170.6?
This case presents the following issue: Should this court’s decision in Solberg v. Superior Court (1977) 19 Cal.3d 182 be overruled or limited insofar as it allowed a public agency to bring “blanket challenges” against particular judges under Code of Civil Procedure section 170.6? On 9/24/25, the Court ordered supplemental briefing on the following question: Assuming arguendo that “blanket challenges” to…
Retroactive Application of SB 567 to Stipulated Plea Agreements
Does Senate Bill No. 567 (Stats. 2021, ch. 731), which limits a trial court’s discretion to impose upper term sentences, apply retroactively to defendants sentenced pursuant to stipulated plea agreements? Held: Defendant who agreed to an upper term sentence pursuant to a plea bargain may invoke the retroactive benefit of SB 567's changes to PC 1170(b) regarding her nonfinal judgment…
PC 1172.6 – Whether the Actus Reus of Felony Murder Requires a Defendant, Not the Actual Killer, only Aid in the Underlying Felony
Did the trial court correctly deny defendant’s Penal Code section 1172.6 resentencing petition at the prima facie stage on the ground that the actus reus of first degree felony murder requires that a defendant who is not the actual killer need only aid in the underlying felony and not in the killing itself (Pen. Code, § 189, subd. (e)(2))? Held: …
PC § 1172.6 – Are petitioners ineligible for relief if they could have raised their challenge on direct appeal?
Does Penal Code section 1172.6, subdivision (a)(3), which requires defendants to allege that they "could not presently be convicted of murder or attempted murder because of changes to section 188 or 189 made effective January 1, 2019," render ineligible for relief petitioners who could have raised their challenges to imputed malice on prior direct appeal? Held: The mere fact that…
Parental Termination Rights Under WIC § 366.26
The issue to be briefed and argued is limited to the following: Can parental rights properly be terminated pursuant to Welfare and Institutions Code section 366.26, subdivision (c)(1) when a parent did not receive reunification services and was not bypassed for such services? On November 25, 2025, the court ordered this case consolidated for argument and decision with In re…
Is assault necessarily an LIO of resisting an executive officer by force or violence?
Is assault (Pen. Code, § 240) a necessarily included lesser offense of resisting an executive officer by force or violence (Pen. Code, § 69, subd. (a))? Held: "We conclude that assault is not a lesser included offense of resisting an officer by force or violence. Specifically, resisting by force or violence does not require the “present ability” (§ 240) to…
Is loose marijuana in a car an open container violation, and does this affect the probable cause analysis?
The issues to be briefed and argued are as follows: 1. Does the presence of 0.36 grams of loose marijuana on the floor of a vehicle constitute an open container violation under Health & Safety Code, section 11362.3, subdivision (a)(4)? 2. Does the answer to this question affect whether there was probable cause for a warrantless vehicle search under the…
RJA: Must a petitioner allege a prima facie case before the trial court can consider a discovery request?
This case presents the following issue: Must a petitioner allege a prima facie case for relief under the Racial Justice Act (Pen. Code, § 745; RJA) before the trial court can consider a discovery request for disclosure of evidence under the RJA (id., subd. (d))? On November 25, 2025, the court directed the Attorney General to file supplemental briefing addressing…
Fines, Fees, Assessments and Considering Defendant’s Ability to Pay
(1) Must a court consider a defendant's ability to pay before imposing or executing fines, fees, and assessments? (2) If so, which party bears the burden of proof regarding the defendant's inability to pay? Held: Constitutional due process does not require an ability to pay hearing prior to imposing any punitive “fine.” Instead, constitutional challenges to criminal fine amounts, such…
Whether a single act that harms multiple victims may constitute two strikes under the Three Strikes law
May two prior convictions arising out of a single act that harms multiple victims constitute two strikes under the Three Strikes law? (People v. Vargas (2014) 59 Cal.4th 635; People v. Williams (1998) 17 Cal.4th 148.) Held: A single act that harms two victims may not be treated as two prior strikes for purposes of Three Strikes sentencing. Expanding the…
When a juvenile court’s findings establish that a parent committed an offense required to be reported to the CACI, should an appellate court presume the offense has been reported?
The Court granted the petition for review after the Court of Appeal dismissed the appeal as moot in a juvenile dependency proceeding. This case presents the following issues: (1) When a juvenile court’s jurisdictional findings establish that a parent committed an offense that the law requires be reported to the statewide Child Abuse Centralized Index (CACI), should an appellate court…
First Amendment – Is a provision that criminalizes the failure to use a care facility resident’s preferred name unconstitutional?
Did the Court of Appeal err in declaring the provision of the Lesbian, Gay, Bisexual, and Transgender (LGBT) Long-Term Care Facility Residents’ Bill of Rights (Health & Saf. Code, § 1439.51) that criminalizes the willful and repeated failure to use a resident’s chosen name and pronouns unconstitutional on its face under the First Amendment? Held: [1] The present version of…
Application of Three Strikes Reform Act of 2012 When Defendant is Resentenced Under SB 483 (PC § 1172.75)
Do the revised penalty provisions of the Three Strikes Reform Act of 2012 (Pen. Code, § 1170.12) apply when a defendant is resentenced pursuant to Senate Bill No. 483 (Pen. Code, § 1172.75)? The Court requested supplemental briefing on whether defendants qualify as “presently serving an indeterminate term” under Penal Code section 1170.126 if they were serving such a term…
Retroactivity of PC § 352.2, Which Limits the Admissibility of Creative Expressions
People v. Bankston and People v. Hin, both automatic appeals, include an issue involving the retroactivity of the provision in Assembly Bill No. 2799 (Stats. 2022, ch. 973) limiting the admissibility of creative expressions (Evid. Code, § 352.2). In Bankston, on 6/11/25, the Court ordered supplemental briefing on the issue of whether harmless error analysis applies to RJA violations under Penal…
Does AB 333 Unconstitutionally Amend the Requirements for a True Finding on a Prior Strike Conviction and a Prior Serious Felony Conviction?
(1) Does Assembly Bill No. 333 amend the requirements for a true finding on a prior strike conviction (Pen. Code, §§ 667, subds. (b)–(i) & 1170.12, subds. (a)–(d)) and a prior serious felony conviction (Pen. Code, § 667, subd. (a)), or is that determination made on “the date of that prior conviction”? (See Pen. Code, §§ 667, subd. (d)(1) &…
Constitutionality of Three Strikes Law–Requiring Prosecutors to Plead and Prove Prior Convictions
(1) Does the Three Strikes law (Pen. Code, §§ 667, subds. (b)-(i), 1170.12) violate the separation of powers doctrine by requiring prosecutors to plead and prove prior qualifying felony convictions? (2) If there is a duty to plead prior qualifying convictions, is mandamus the proper remedy to compel a prosecutor to act? Held: Dismissed as moot on 8/20/25.
Level of Scrutiny for Determination of SVPA Equal Protection Violation
What level of scrutiny applies in determining whether the Sexually Violent Predator Act (Welf. & Inst. Code, § 6600 et seq.) violates equal protection because it does not require an advisement or personal waiver of a jury trial as afforded in other civil commitment statutes? Held: Equal protection challenges to SVP jury demand and waiver procedures are evaluated under a…
Duty to Inquire About Child’s Potential Indian Ancestry When Child Taken into Custody Under Protective Custody Warrant
Does the duty of a child welfare agency to inquire of extended family members and others about a child’s potential Indian ancestry apply to children who are taken into custody under a protective custody warrant? The court directed the parties to file supplemental briefs addressing the significance, if any, of Assembly Bill No. 81 to the issues presented in this…
Remand to Reinstate Strike Finding and Resentence Defendant Under Three Strikes Law
Did the Court of Appeal err in remanding the case with directions to reinstate the strike finding and to resentence defendant as a person who has suffered a prior strike conviction under the Three Strikes Law? (See People v. Williams (1998) 17 Cal.4th 148, 164, fn. 7; see also People v. McGlothin (1998) 67 Cal.App.4th 468, 478; People v. Humphrey…
AB 1950 Retroactive Application When Probation Revoked Before Effective Date
Does Assembly Bill No. 1950 (Stats. 2020, ch. 328) apply retroactively to a defendant, serving a suspended-execution sentence, whose probation was revoked before the law went into effect? Held: AB 1950 can be applied retroactively under Estrada to shorten the defendant’s period of probation if the defendant’s case is not final, even if defendant’s probation was properly terminated before the…
PC 1172.75 Resentencing When Defendant’s Prior Prison Term Enhancements Were Imposed and Stayed
Does Senate Bill No. 483 (Stats. 2021, ch. 728) entitle a defendant to a full resentencing hearing under Penal Code section 1172.75 if the defendant’s prior prison term enhancements (Pen. Code, § 667.5, subd. (b)) were imposed and stayed, rather than imposed and executed? Held: PC 1172.75 entitles defendants to full resentencing when their judgments include a prior prison term…
PC § 1170(b)(3) and Sixth Amendment Right to a Jury Trial–Circumstances in Aggravation Based on Certified Records of Prior Convictions, Beyond Bare Fact of Convictions
Did the sentencing court’s consideration of circumstances in aggravation based on certified records of prior convictions, beyond the bare fact of the convictions, violate Penal Code section 1170, subdivision (b)(3) or defendant’s Sixth Amendment right to a jury trial? Held: Erlinger v. United States (2024) 602 U.S. 821, held that a defendant is entitled to have a jury determine whether…
PC 1172.6 – Does Sufficient Evidence Support A Finding Defendant Acted With Reckless Indifference to Human Life?
Does sufficient evidence support the trial court’s finding that defendant acted with reckless indifference to human life and therefore was ineligible for resentencing pursuant to Penal Code section 1172.6? Held: Insufficient evidence showing reckless indifference to human life where Emanuel set out to commit a robbery in a public place in the middle of the afternoon. He was not armed,…
PC Section 1172.6 Resentencing and Pre-2009 Provocative Act Murder Convictions
(1) Is defendant entitled to resentencing pursuant to Penal Code section 1172.6 on the ground that malice could be imputed to the defendant under the provocative act theory of murder for convictions occurring before 2009 (see Sen. Bill No. 775 (2021-2022 Reg. Sess.); People v. Concha (2009) 47 Cal.4th 653)? (2) Did the trial court err by not considering the…
SB 1437–Impermissible Judicial Factfinding by Relying on the Preliminary Hearing Transcript to Deny Petition at the Prima Facie Stage?
Did the trial court engage in impermissible judicial factfinding by relying on the preliminary hearing transcript to deny defendant’s Penal Code section 1172.6 petition at the prima facie stage? (See People v. Lewis (2021) 11 Cal.5th 952.) Held: The trial court may rely on the prosecution's unchallenged citations to the preliminary hearing transcript to determine whether a prima facie case…
Retroactive Application of AB 333 Where Defendant Appeals for Second Time After Limited Remand to Address Sentencing Issues
Is defendant entitled to retroactive application of Assembly Bill No. 333 (2021-2022 Reg. Sess.) where he appeals for a second time after his judgment was conditionally reversed and the Court of Appeal issued a limited remand to the trial court to address sentencing issues? The request for an order directing depublication of the opinion was denied. Held: A criminal case…
Insufficient Evidence for Second Degree Murder Conviction Based on Failure to Protect
Does sufficient evidence support defendant’s conviction for second degree murder based on a failure to protect? (People v. Collins (Mar. 30, 2023, B322744) [nonpub. opn.], review granted 7/19/2023 (S279737).) Held: The Supreme Court holds there is insufficient evidence to convict defendant of second-degree implied malice murder, on a failure-to-protect theory, as an aider and abettor or direct perpetrator, for the…
Prosecution’s Ability to Rescind Plea Agreement at SB 483 Resentencing When Defendant’s Sentence is Reduced Beyond Eliminating Prison Priors
Is the prosecution entitled to rescind a plea agreement when a defendant receives a full resentencing pursuant to Senate Bill No. 483 (Stats. 2021, ch. 728) and the trial court intends to reduce the sentence beyond eliminating the prior prison term enhancements (Pen. Code, § 667.5, subd. (b))? Held: The matter was transferred to the Court of Appeal, First Appellate…
May the People Seek Review of a Superior Court’s Post-Preliminary Hearing, Prejudgment Order Reducing Felony “Wobbler” Offense to a Misdemeanor?
(1) Does Penal Code section 1238 authorize an appeal by the People from a superior court’s post-preliminary hearing, prejudgment order reducing a felony “wobbler” offense to a misdemeanor? (2) If not, may the People obtain review of the order by petition for extraordinary writ? On 12/5/2023, the People filed a motion to dismiss review. The Real Party in Interest (defendant…
Youth Offender Parole–Constitutionality of Excluding Young Adults Sentenced Under One Strike law
Does Penal Code section 3051, subdivision (h), violate the equal protection clause of the Fourteenth Amendment by excluding young adults convicted and sentenced for serious sex crimes under the One Strike law (Pen. Code, § 667.61) from youth offender parole consideration, while young adults convicted of first degree murder are entitled to such consideration? Held: The exclusion of One Strike…
IAC for Failing to Advise Potential SVPA Involuntary Commitment
(1) Does constitutionally effective assistance of counsel require defense counsel to advise a defendant that a guilty plea may subject the defendant to commitment proceedings under the Sexually Violent Predator Act (Welf. & Inst. Code, § 6600 et seq.; SVPA)? If so, did petitioner in this case suffer prejudice? (2) In the alternative, should this Court, in the exercise of…
Additional Evidence in Appellate Court to Remedy the Failure to Comply with ICWA
May an appellate court take additional evidence to remedy the failure of the child welfare agency and the trial court to comply with the inquiry, investigation, and notice requirements of the Indian Child Welfare Act (25 U.S.C. § 1901 et seq.; Welf. & Inst. Code, § 224 et seq.), and if so, what procedures must be followed? Held: Absent exceptional…
What Constitutes Reversible Error When ICWA Inquiry Not Made
What constitutes reversible error when a child welfare agency fails to make the statutorily required inquiry concerning a child's potential Indian ancestry? Held: Where an Indian Child Welfare Act (ICWA) inquiry is inadequate, conditional reversal is required. Minors were removed due to parents’ substance abuse and domestic violence issues. The Agency did not inquire with relatives about Indian heritage, despite…
Whether PC 1385(c) Creates a Rebuttable Presumption in Favor of Dismissing an Enhancement
Does the amendment to Penal Code section 1385, subdivision (c) that requires trial courts to “afford great weight” to enumerated mitigating circumstances (Stats. 2021, ch. 721) create a rebuttable presumption in favor of dismissing an enhancement unless the trial court finds dismissal would endanger public safety? Held: Under the plain language of PC 1385(c)(2), absent a finding that dismissal would…
Setting Victim Restitution After Terminating Probation Pursuant to AB 1950
Did the trial court exceed its jurisdiction by setting the amount of victim restitution after terminating defendant's probation pursuant to Assembly Bill No. 1950 (Stats. 2020, ch. 328)? Held: Where the trial court orders defendant to pay victim restitution in an amount to be determined (PC 1202.4(f)), the court retains jurisdiction to order the specific amount of restitution after probation…
Prejudice Standard on Appeal for SB 567 Issue
What prejudice standard applies on appeal when determining whether a case should be remanded for resentencing in light of newly-enacted Senate Bill No. 567 (Stats. 2021, ch. 731)? Held: The CSC holds that Chapman standard of review applies in determining whether, in cases where the judgment is not yet final, remand is required for resentencing pursuant to SB 567, which…
Permissible Enhancements on Penal Code Section 1172.6(e) Resentencing
When a defendant obtains resentencing of a conviction under Penal Code section 1172.6, subdivision (e), is the trial court permitted to impose not only the target offense or underlying felony, but also corresponding enhancements? Held: Under Penal Code section 1172.6, trial courts may not impose uncharged and unproven allegations or enhancements as part of resentencing a successful petitioner. Arellano, charged…
Does the SVPA Allow the People to Retain a Private Expert to Testify at Trial
Does the Sexually Violent Predator Act (Welf. & Inst. Code, § 6600 et seq.) allow the People to retain a private expert to testify at trial as to whether a defendant is a sexually violent predator, or are the expert witnesses limited to those designated by the State Department of State Hospitals (Welf. & Inst. Code, §§ 6601 & 6603)?…
Evidence at Bail Hearing
What evidence may a trial court consider at a bail hearing when evaluating whether the facts are evident or the presumption great with respect to a qualifying charged offense, and whether there is a substantial likelihood the person?s release would result in great bodily harm to others? (Cal. Const., art. I, § 12, subd. (b).) Held: The superior court is not…
Retroactivity of Assembly Bill No. 333’s Provision Permitting the Bifurcation of Gang Allegations at Trial
Briefing in People v. Burgos (2022) 77 Cal.App.5th 550, review granted 7/13/2022 (S274743) was initially deferred pending decision in People v. Tran (2022) 13 Cal.5th 1169 (S165998). On 10/12/2022, the court ordered briefing on the following issue: Does the provision of Penal Code section 1109 governing the bifurcation at trial of gang enhancements from the substantive offense or offenses apply retroactively to cases that…
Court Dismissal of Strict Liability Offense and State Law Preemption of Local Ordinance
(1) Can a trial court dismiss a strict liability offense pursuant to Penal Code section 1385 based in part on a defendant's lack of knowledge concerning the offense? (2) Does state law preempt a local ordinance when both prohibit the same conduct and the state law has a mens rea component that the local ordinance does not? Held: Because the…
Detention Based on Avoiding Contact With Police in High Crime Neighborhood
Briefing in People v. Flores (2021) 60 Cal.App.5th 978, review granted 4/21/2021, was initially deferred pending decision in People v. Tacardon (2022) 14 Cal.5th 235. On 7/26/2023, the court ordered briefing on the following issue: Was defendant’s detention supported by reasonable suspicion that he was engaged in criminal activity? Held: Police officers detained defendant, Marlon Flores, on a dark evening…
Striking PC § 12022.53 Firearm Enhancement and Imposing Lesser Uncharged Enhancement Pursuant to a Different Statute (PC § 12022.5)
Does the trial court have discretion to strike a firearm enhancement imposed pursuant to Penal Code section 12022.53 and instead impose a lesser uncharged firearm enhancement pursuant to a different statute (Pen. Code, § 12022.5)? Held: Penal Code section 12022.53 establishes a tiered system of sentencing enhancements for specified felonies involving the use of firearms. (All statutory references are to…
Crimes PC 136.1 and Dissuading a Victim or Witness After a Charging Document Has Been Filed
Does Penal Code section 136.1, subdivision (b)(2), which prohibits dissuading or attempting to dissuade a victim or witness from causing a charging document "to be sought and prosecuted, and assisting in the prosecution thereof," encompass attempts to dissuade a victim or witness after a charging document has been filed? Held: Penal Code section 136.1, subdivision (b)(2) makes it a crime…
Equal Protection Clause Challenge to Penal Code Section 3051
Does Penal Code section 3051, subdivision (h), violate the Equal Protection Clause of the Fourteenth Amendment by excluding young adults sentenced to life without the possibility of parole from youth offender parole consideration, while young adults sentenced to parole-eligible terms are entitled to such consideration? On 10/4/2023, the California Supreme Court ordered supplemental briefing on the following issue: Whether the…
One Strike Law Pleading and Sentencing
(1) Did the Court of Appeal err by disagreeing with People v. Jimenez (2019) 35 Cal.App.5th 373 and endorsing as mandatory the sentencing practice prohibited in that case; (2) Is the Court of Appeal's decision incorrect under People v. Mancebo (2002) 27 Cal.4th 735; (3) Did the Court of Appeal err by failing to address petitioner's claims as to the issues of waiver…
Constitutional Challenge to AB 333’s Application to the Gang-Murder Special Circumstance
Does Assembly Bill No. 333 (Stats. 2021, ch. 699) unconstitutionally amend Proposition 21, if applied to the gang-murder special circumstance (Pen. Code, § 190.2, subd. (a)(22))? Assembly Bill No. 333, which narrowed the definition of “criminal street gang,” did not unconstitutionally amend Proposition 21, and the new definition of “criminal street gang” properly applies to the gang-murder special circumstance added…
When Does Incompetency Commitment End
Does an incompetency commitment end when a state hospital files a certificate of restoration to competency or when the trial court finds that defendant has been restored to competency? For purposes of calculating the maximum commitment period for a defendant found incompetent to stand trial, the commitment continues past the filing of certificate of restoration and includes the time between…
Definition of “Substance Abuse” and is a Finding of Parental Substance Abuse Alone Sufficient to Warrant Juvenile Court Jurisdiction
(1) What is the definition of "substance abuse" for purposes of declaring a child a dependent under Welfare and Institutions Code section 300, subdivision (b)(1)? (2) Where a child is under the age of six, does a finding of parental substance abuse alone provide sufficient evidence to warrant juvenile court jurisdiction? Substance abuse, which is defined as the excessive use…
SB 1437–Gang-Murder Special Circumstance Preclude Eligibility for Resentencing at Prima Facie Stage?
Does a jury's true finding on a gang-murder special circumstance (Pen. Code, § 190.2, subd. (a)(22)) preclude a defendant from making a prima facie showing of eligibility for resentencing under Penal Code section 1170.95? In Penal Code section 1172.6 proceedings, a prior jury finding of intent to kill does not conclusively establish that the petitioner is ineligible for relief at…
Did Court of Appeal Err by Finding Trial Court Would Not Have Imposed a Low Term Sentence Under Newly-Added Penal Code section 1170(b)(6)
Did the Court of Appeal err by finding the record clearly indicates the trial court would not have imposed a low term sentence if it had been fully aware of its discretion under newly-added subdivision (b)(6) of Penal Code section 1170? (See People v. Gutierrez (2014) 58 Cal.4th 1354, 1391.) Remand was required where the sentencing court did not clearly indicate…
Delay of SVP Trial Due Process Violation?
Does a 15-year delay in bringing a defendant to trial under the Sexually Violent Predator Act (Welf. & Inst. Code, § 6600 et. seq) constitute a due process violation? Persons facing commitment under the Sexually Violent Predator (SVP) Act have a due process right to a timely trial, but even a 15-year delay does not necessarily violate that right where…
Did Trial Court Err by Providing Kill Zone Instruction / Did COA Apply Proper Standard of Review Under People v. Canizales
(1) Did the trial court err by providing a kill zone instruction? (2) Did the Court of Appeal apply the proper standard of review under People v. Canizales (2019) 7 Cal.5th 591 in holding the trial court did not err in providing the kill zone instruction? The proper standard of review when a defendant challenges a trial court’s decision to instruct…
Jury Instruction on Voluntary Manslaughter Based on Imperfect Self-Defense and Prejudice Standard
(1) Was the trial court's error in refusing to instruct the jury on voluntary manslaughter based on imperfect self-defense harmless? (2) What standard of prejudice applies to such an error? When a defendant presents substantial evidence of imperfect self-defense, the trial court’s failure to instruct on that theory precludes the jury from making a factual finding essential to prove the…
Required Findings and Balancing Test for Admitting Hearsay at Probation/Parole Revocation Hearings
Did the trial court violate the due process right to confrontation applicable at probation and parole revocation hearings by admitting hearsay statements in a bodycam video under the excited utterance exception (Evid. Code, § 1240) without first making a finding of good cause and determining whether a balancing of the relevant factors under People v. Arreola (1994) 7 Cal.4th 1144 favored…
First Degree Murder–Substantial Concurrent Causation Theory (Sanchez) and Impact of Chiu and SB 1437
(1) Does the "substantial concurrent causation" theory of liability of People v. Sanchez (2001) 26 Cal.4th 834 permit a conviction for first degree murder if the defendants did not fire the shot that killed the victim? (2) What impact, if any, do People v. Chiu (2014) 59 Cal.4th 155 and Senate Bill No. 1437 (Stats. 2018, ch. 1015, § 1, subd. (f)) have on…
SB 1437 Resentencing–Does Substantial Evidence Support Findings that Petitioner Acted with Implied Malice, or that Actions Constituted Murder or Aided and Abetted Murder
Does substantial evidence support the superior court's finding that petitioner is ineligible for relief under Penal Code section 1170.95? On 10/29/2021, the court limited the issues to be briefed and argued to the following: (1) Does substantial evidence support the conclusion that petitioner acted with implied malice? (2) Does substantial evidence support the conclusion that petitioner's actions constituted murder or…
Retroactivity of AB 1950 and Remand Procedure
Review was originally granted with briefing deferred pending decision in People v. Hernandez (2020) 55 Cal.App.5th 942, review granted 1/27/2021 and case transferred to Court of Appeal on 12/22/2021 (S265739/F080131), which presented the following issues: (1) If a defendant's prior prison term enhancements are stricken under Senate Bill No. 136, does the remainder of the sentence agreed to under a…
Kidnapping to Commit Rape Based on the Use of Deception to Take Intoxicated Adult Victim
Can a defendant be convicted of kidnapping to commit rape (Pen. Code, § 209, subd. (b)(1)) based on the use of deception, as an alternative to force or fear, to take and carry away an intoxicated adult victim? Held: A jury convicted Lewis of raping S.D. while she was intoxicated (Pen. Code, § 261, subd. (a)(3)) and kidnapping S.D. to…
Mental Health Diversion–Latest Point to Request
What is the latest point at which a defendant may request mental health diversion under Penal Code section 1001.36? A request for pretrial diversion (Pen. Code, § 1001.36) must be made before attachment of jeopardy at trial or the entry of a guilty or no contest plea, whichever occurs first. In 2018, defendant was charged with resisting an executive officer with…
Must Gang Enhancements Be Vacated Based on Changes Made By AB 333
Must any of defendant's sentencing enhancements be vacated due to recent statutory changes requiring that the offenses necessary to establish a " 'pattern of criminal gang activity' . . . commonly benefited a criminal street gang, and the common benefit from the offense is more than reputational" (Pen. Code, § 186.22, subd. (e)(1), as amended by Stats. 2021, ch. 699,…
Constitutionality of Fact-Finding Required by PC 667.6, subd. (d)
Does Penal Code section 667.6, subdivision (d), which requires that a "full, separate, and consecutive term" must be imposed for certain offenses if the sentencing court finds that the crimes "involve[d] the same victim on separate occasions," comply with the Sixth Amendment to the U.S. Constitution? Held: Penal Code section 667.6, subdivision (d) requires a sentencing court to impose “full,…
Whether the Trial Court’s Failure to Appoint Substitute Counsel Deprived Defendant of the Effective Assistance of Counsel
Did the trial court deprive defendant of effective assistance of counsel by failing to appoint substitute counsel to evaluate and potentially argue defendant’s pro. per. motion to dismiss after appointed counsel refused to consider the motion based on an asserted conflict in arguing her own ineffective assistance of counsel? Held: In 2007, defendant Ishmael Michael Carter was committed to Coalinga…
Adequate Exercise of Discretion Under In re Manzy W.?
Did the Court of Appeal err in ruling that the trial court adequately exercised its discretion to determine whether the juvenile's offenses were felonies or misdemeanors as required by Welfare and Institutions Code section 702 and In re Manzy W. (1997) 14 Cal.4th 1199? Held: Welfare and Institutions Code section 702 provides that when a minor is found to have committed a…
Did True Finding on PC 12022.53, subd. (d) Enhancement Render People v. Chun (2009) 45 Cal.4th 1172 Error Harmless Beyond a Reasonable Doubt
The court issued an order to show cause why relief should not be granted on the ground that the jury's true finding on the Penal Code section 12022.53, subdivision (d) enhancement did not render the People v. Chun (2009) 45 Cal.4th 1172 error harmless beyond a reasonable doubt. The jury’s true finding on a firearm enhancement (Pen. Code, § 12022.53, subd. (d))…
True Finding on Gang-Killing Special Circumstance and Chiu Error / Harmless Error Review
(1) Does a true finding on a gang-killing special circumstance (Pen. Code, §190.2, subd. (a)(22)) render Chiu error (People v. Chiu (2014) 59 Cal.4th 155) harmless? (2) To what extent or in what manner, if any, may a reviewing court consider the evidence in favor of a legally valid theory in assessing whether it is clear beyond a reasonable doubt that the jury…
When Does AG Have Duty to Disclose Brady Material During Habeas Proceedings
When a habeas petitioner claims not to have received a fair trial because the district attorney failed to disclose material evidence in violation of Brady v. Maryland (1963) 373 U.S. 83--and when the Attorney General has knowledge of, or is in actual or constructive possession of, such evidence--what duty, if any, does the Attorney General have to acknowledge or disclose that evidence…
Continuing Hearing on Motion to Suppress When Denying Continuance Would Result in Dismissal
Did the trial court err in granting the People's motion under Penal Code section 1050 to continue the hearing on a motion to suppress evidence, when it was reasonably foreseeable that denying the continuance would result in a dismissal of the case but the People otherwise failed to show good cause for a continuance? Held: "This case involves a motion…
Murder–Instruction on Elements of First Degree Murder By Poison
(1) Did the trial court err in instructing the jury on the elements of first degree murder by poison (see People v. Steger (1976) 16 Cal.3d 539, 544?546; People v. Mattison (1971) 4 Cal.3d 177, 183?184, 186)? (2) Was any such instructional error prejudicial? Held: The District Attorney charged Brown with first degree murder and prosecuted the charge on the theory that Brown…
Judicial Fact Finding at Sentencing When Jury Failed to Reach a Verdict
Did the sentencing court err by finding petitioner's conviction for battery with serious bodily injury was a serious felony (Pen. Code, §§ 667, subd. (a)(1), 1192.7, subd. (c)(8)), despite the jury's failure to reach a verdict on the allegation that petitioner personally inflicted great bodily injury in committing that offense? (See Apprendi v. New Jersey (2000) 530 U.S. 466; Blakely v. Washington (2004) 542…
Illegal Detention–Does Discovery of a Parole or Probation Search Condition Remove Taint Under the Attenuation Doctrine
(1) Is the discovery of a parole or probation search condition an intervening circumstance that removes the taint of an illegal detention under the attenuation doctrine? (2) What constitutes purposeful and flagrant police misconduct under the attenuation doctrine analysis? Held: As a general rule, evidence seized as a result of an unlawful search or seizure is inadmissible against the defendant…
Procedures When Appointed Counsel Determines that an Appeal from an Order Denying Postconviction Relief Lacks Arguable Merit
(1) What procedures must appointed counsel and the Courts of Appeal follow when counsel determines that an appeal from an order denying postconviction relief lacks arguable merit? (2) Are defendants entitled to notice of these procedures? Held: In People v. Wende (1979) 25 Cal.3d 436 [158 Cal. Rptr. 839, 600 P.2d 1071] (Wende), we held the Courts of Appeal must…
Establishing a “Pattern of Criminal Gang Activity”–Must the People Show Two or More Gang Members Worked in Concert During Each Predicate Offense
Can the People meet their burden of establishing a "pattern of criminal gang activity" under Penal Code section 186.22 as amended by Assembly Bill No. 333 (Stats. 2021, ch. 699) by presenting evidence of individual gang members committing separate predicate offenses, or must the People provide evidence of two or more gang members working in concert with each other during…
Demonstrating Prejudice for PC 1473.7 Motion
Did the Court of Appeal err in ruling that defendant failed to demonstrate prejudice within the meaning of Penal Code section 1473.7 from trial counsel's failure to properly advise him of the immigration consequences of his plea? On 9/20/2021, the court limited the issue to be argued and briefed to the following: Did the Court of Appeal err in ruling…
Whether Appeal of Jurisdictional Finding is Moot When Jurisdiction Had Been Terminated in the Interim, Even though Parents Might Be Registered on the Child Abuse Central Index
(1) Is an appeal of a juvenile court's jurisdictional finding moot when a parent asserts that he or she has been or will be stigmatized by the finding? (2) Is an appeal of a juvenile court's jurisdictional finding moot when a parent asserts that he or she may be barred from challenging a current or future placement on the Child…
Whether Defendant Was Detained When Officer Shone a Spotlight on Defendant’s Parked Car and Ordered Passenger to Stay Near Car
Was defendant unlawfully detained when the arresting officer used his spotlight to illuminate defendant's parked car and then directed a passenger who exited the car to remain outside and stay on the sidewalk near the car? Held: A sheriff's deputy patrolling after dark saw three people sitting in a legally parked car in a residential neighborhood, smoking something. He pulled…
Court Delegating Authority to Allow Probation Department to Offer Minor Community Service Hours to Work Off Alleged Probation Violations
Did the trial court improperly delegate its authority to the probation department and violate the minor's due process rights by permitting the probation department to offer the minor community service hours "to work off any alleged probation violations"? Held: After determining that D.N., a minor, was within the jurisdiction of the juvenile court because of his violation of criminal laws…
California Victim Compensation Board Claims and Actual Innocence Finding by Federal Court
(1) Does a federal court's "gateway" finding of actual innocence (Schlup v. Delo (1995) 513 U.S. 298) satisfy the "factually innocent" standard of Penal Code section 1485.55, subdivision (a), for entitlement to compensation by a person wrongfully convicted and incarcerated? (2) Are the factual findings and credibility determinations made in a federal court's Schlup order binding on state courts under Penal Code section…
Drug Overdose as Implicit Waiver of Right to be Present at Trial / No Continuance for Defendant to Testify
(1) Did the trial court err in ruling that defendant's overdose on heroin during his jury trial was an implicit waiver of his right to be present and made him voluntarily absent within the meaning of Penal Code section 1043, subdivision (b)(2)? (2) Did the trial court err in denying the defense motion for a one-day continuance to permit defendant…
Sufficiency of the Evidence–Conspiracy to Commit Murder for the Benefit of a Gang
Does sufficient evidence support Hoskins's Count 1 conviction for conspiracy to commit murder? [Editor's Note: Count 1 in this case alleged that multiple defendants conspired to commit murder (Pen. Code, §§ 182, subd. (a), 187) for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)) between January 1, 2012, and April 23, 2014. On appeal, it was undisputed that the…
Three Strikes Sentencing When There Are Multiple Current Violent or Serious Felony Convictions
Does the Three Strikes law (Pen. Code, §§ 667, subd. (c)(6) & (7), 1170.12, subd. (a)(6) & (7)) require consecutive terms on multiple current violent or serious felony convictions, regardless of whether the offenses occurred on the same occasion or arose from the same set of operative facts? Held: "This case considers if and when a court may impose concurrent sentences…
Assembly Bill No. 333 and Bifurcation of Gang Allegations at Trial
People v. Tran, S165998, an automatic appeal, included an issue involving the retroactivity of the provision in Assembly Bill No. 333 (Stats. 2021, ch. 699) permitting the bifurcation of gang allegations at trial (Pen. Code, § 1109). Held: "The question of whether section 1109 applies retroactively is the subject of a split of authority among the Courts of Appeal. (See e.g., People v…
Whether Assault by Means of Force Likely to Produce Great Bodily Injury a Lesser Included Offense of Assault with a Deadly Weapon
In this case in which briefing was previously deferred pending decision in People v. Aledamat (2019) 8 Cal.5th 1, the court ordered the parties to brief the following question on 11/20/2019: (1) Is assault by means of force likely to produce great bodily injury a lesser included offense of assault with a deadly weapon? (See People v. Aledamat (2019) 7 Cal.5th 1, 16,…
Sufficiency Evidence Gang Enhancements
Was the evidence sufficient to support the criminal street gang enhancements imposed under Penal Code section 186.22, subdivision (b)? On 4/21/2021, the court ordered the issues to be briefed and argued in this case limited to the following: When a member of a criminal street gang acts alone in committing a felony, what evidence will suffice to establish the felony…
Does Gallardo (Limiting Judicial Fact-Finding for Prior Convictions) Apply Retroactively
Do the limitations of People v. Gallardo (2017) 4 Cal.5th 120 on judicial fact-finding concerning the basis for a prior conviction apply retroactively to final judgments? (Compare In re Milton (2019) 42 Cal.App.5th 977 with In re Brown (Feb. 25, 2020, E071401) 45 Cal.App.5th 699.) A request for an order directing depublication of the opinion was denied. Held: In 1987, petitioner William Milton was convicted of…
Mistake of Fact Instructional Error and Prejudice Standard
Did the Court of Appeal err in holding an instructional error on the defense of mistake of fact harmless? In the circumstances of this case, which standard of prejudice applies to an error in instructing on the defense of mistake of fact: that of People v. Watson (1956) 46 Cal.2d 818 or that of Chapman v. California (1967) 386 U.S. 18? Held: Early one…
SB 1437–Felony-Murder Special Circumstance Finding Precluding Eligibility for Relief
Does a felony-murder special circumstance finding (Pen. Code, § 190.2, subd. (a)(17)) made before People v. Banks (2015) 61 Cal.4th 788 and People v. Clark (2016) 63 Cal.4th 522 preclude a defendant from making a prima facie showing of eligibility for relief under Penal Code section 1170.95? Held: A pre-Banks/Clark felony-murder special-circumstance finding does not preclude a defendant from establishing a prima facie case for…
Trial Court Permission to Consolidate Pleadings
When a defendant is held to answer following separate preliminary hearings on charges brought in separate complaints, can the People file a unitary information covering the charges in both those cases or must they obtain the trial court's permission to consolidate the pleadings? (See Pen. Code, §§ 949, 954.) Held: Penal Code1 section 954 provides in relevant part: “[1] An…
Finality for Ameliorative Change in Law When Judgment is Later Vacated, Altered, or Amended and a New Sentence Imposed
When a judgment becomes final, but is later vacated, altered, or amended and a new sentence imposed, is the case no longer final for the purpose of applying an intervening ameliorative change in the law? Proposition 57 applies to juvenile offender’s resentencing because his judgment became nonfinal when his original sentence was vacated during habeas proceedings and his case was…