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? Review on this issue has also been granted with briefing deferred in: In re Robert F. (2023) 90 Cal.App.5th 492, review granted 7/26/2023 (S279743/E080073) In…
PC 1172.6–Does Sufficient Evidence Support Trial Court’s 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? [Editor's Note: Emanuel was convicted of first degree felony murder. His codefendant Whitley shot the victim (Cody) during a drug deal that turned into a robbery. After a section 1172.6(d)(3) hearing,…
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) &…
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? Review on this issue has also been granted with briefing deferred in: First District People v. Gonzalez (F080555) [nonpub. opn.], review granted 6/15/22 (S274324) People v. Curiel (F081143)…
Retroactivity of PC § 352.2 (Added by AB 2799), 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). Review on this issue has also been granted with briefing deferred in: People v. Venable (2023) 88 Cal.App.5th 445, review granted 5/17/2023…
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)? …
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? Review on this issue has also been granted with…
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? Review on this issue has also been granted with briefing deferred in: First District Kuhnel v. Superior Court (2022) 75 Cal.App.5th 726, review granted 6/1/2022 (S274000/A163307) People v. Jackson (2023) 93 Cal.App.5th…
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? Review on this issue has also been granted with briefing deferred in: First District People…
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)? Review on this issue has also been granted with briefing deferred in: First District People v. Whyte (A160769) [nonpub. opn.], review granted 1/11/2023 (S277463) People v. Ross (A163242) [nonpub. opn.], review granted…
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.) Review on this issue has also been granted with briefing deferred in: People v. Vaughn (F084104) [nonpub. opn.], review granted 9/13/2023 (S281320)
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? Held: The Sexually Violent Predator Act (SVP Act; Welf. & Inst. Code, § 6600 et seq.) authorizes the involuntary commitment of certain convicted sex offenders — termed “sexually violent predators,” or…
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…
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? Review on this issue has also been granted with briefing deferred…
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…
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…
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…
Did Court of Appeal Err by Finding Trial Court Would Not Have Imposed a Low Term Sentence Under Newly-Added Penal Code section 1170, Subdivision (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.) Review on this issue has also been granted with briefing deferred…
Sufficient 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).) [Editor’s Note: The Court of Appeal concluded there was sufficient evidence to permit a rational juror to find beyond a reasonable doubt that defendant (the infant victim’s mother) by inaction and…
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? [Editor’s Note: The Court of Appeal affirmed the trial court’s denial…
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…
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? Review on this issue has also been granted with briefing deferred in: Second District People v. Sovalbarro (B317652) [nonpub. opn.], review granted 12/28/2022 (S277121) People v. Caro (B315233) [nonpub. opn.],…
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…
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? Review on this issue has also been granted with briefing deferred in: People v.…
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…
Whether Prohibiting Possession of Firearms by Persons Subject to Domestic-Violence Restraining Order Violates Second Amendment
Whether 18 U.S.C. 922(g)(8), which prohibits the possession of firearms by persons subject to domestic-violence restraining orders, violates the Second Amendment on its face.
Does the Double Jeopardy Clause Prohibit Second Prosecution for Crime of which Defendant Was Previously Acquitted?
The Georgia Supreme Court held that a jury’s verdict of acquittal on one criminal charge and its verdict of guilty on a different criminal charge arising from the same facts were logically and legally impossible to reconcile. It called the verdicts “repugnant,” vacated both of them, and subsequently held that the defendant could be prosecuted a second time on both…
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…
Appropriate Test for Determining Whether a “True Threat” is Unprotected By the First Amendment
Whether, to establish that a statement is a “true threat” unprotected by the First Amendment, the government must show that the speaker subjectively knew or intended the threatening nature of the statement, or whether it is enough to show that an objective “reasonable person” would regard the statement as a threat of violence. Held: True threats of violence are outside…
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…
Confrontation Clause–Admitting Codefendant’s Redacted Confession that Inculpates a Defendant
Whether admitting a codefendant's redacted out-of-court confession that immediately inculpates a defendant based on the surrounding context violates the defendant's rights under the Confrontation Clause of the Sixth Amendment. Held: Prosecutors have long tried criminal defendants jointly in cases where the defendants are alleged to have engaged in a common criminal scheme. However, when prosecutors seek to introduce a nontestifying…
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…
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))? Review on this issue has also been granted with briefing deferred in: Second District People v. Lee (B300756, B305493) [nonpub. opn.], review granted 10/19/2022 (S275449) People v. Gonzalez (B302834/B303671) [nonpub. opn.], review granted 2/15/2023 (S277936)…
Proper Remedy for Government’s Failure to Prove Venue
Whether the proper remedy for the government’s failure to prove venue is an acquittal barring re-prosecution of the offense, as the Fifth and Eighth Circuits have held, or whether instead the government may re-try the defendant for the same offense in a different venue, as the Sixth, Ninth, Tenth, and Eleventh Circuits have held. The U.S. Constitution permits retrial when…
Multiple Constitutional Challenges to ICWA
The U.S. Supreme Court granted certiorari in four related ICWA cases. They were consolidated for briefing and oral argument. Filings and activity in the cases was reflected on the docket for Haaland v. Brackeen, case number 21-376. All the cases sought review of the Fifth Circuit's decision in Brackeen v. Haaland (5th Cir. 2021) 994 F.3d 249, cert. granted 2/28/2022 (21-376,…
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)? Review on this issue has also been granted with briefing deferred in: People v. Bui (H049109) [nonpub. opn.], review granted 6/14/2023 (S279880)
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…
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,…
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,…
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…
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? A request for an order directing depublication of the Court of Appeal opinion was denied. Review on this issue has also been granted with briefing deferred in: In re G.A. (2022) 81 Cal.App.5th 355, review granted 10/12/2022 (S276056/C094857) In re…
Test to Determine Whether the Due Process Clause Requires a State or Local Government to Provide a Post Seizure Probable Cause Hearing Before Forfeiture Proceeding
In determining whether the Due Process Clause requires a state or local government to provide a post seizure probable cause hearing prior to a statutory judicial forfeiture proceeding and, if so, when such a hearing must take place, should district courts apply the “speedy trial” test employed in United States v. $8,850, 461 U.S. 555 (1983) and Barker v. Wingo,…
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? Review on this issue has also…
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…
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)? Review on this issue has also been granted with briefing deferred in: People v. Fuller (2022) 83 Cal.App.5th 394, review granted 11/22/2022 (S276762/E071794) People v. Johnson…
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?
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…
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…
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?
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…
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?
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…
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…
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…
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? (In re Kenneth…
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.…
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?
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…
Second Amendment Right for Ordinary Law-Abiding Citizens to Carry Handguns Outside the Home for Self-Defense
New York prohibits its ordinary law-abiding citizens from carrying a handgun outside the home without a license, and it denies licenses to every citizen who fails to convince the state that he or she has “proper cause” to carry a firearm. In District of Columbia v. Heller, this Court held that the Second Amendment protects “the individual right to possess…
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…
Procedural Default and Martinez v. Ryan (2012) 566 U.S. 1
Does application of the equitable rule the U.S. Supreme Court announced in Martinez v. Ryan (2012) 566 U.S. 1 render 28 U.S.C. § 2254(e)(2) inapplicable to a federal court's merits review of a claim for habeas relief? Held: A federal habeas court generally may consider a state prisoner’s federal claim only if he has first presented that claim to the…
Conservatorship–Right Not to Testify
Does equal protection require that persons subject to a conservatorship under the Lanterman-Petris-Short Act (Welf. & Inst. Code, § 5350) have the same right to invoke the statutory privilege not to testify as persons subject to involuntary commitments under Penal Code section 1026.5 after a finding of not guilty by reason of insanity? Held: "The Lanterman-Petris-Short (LPS) Act (LPS Act;…
Federal Habeas Relief When State Court Determined Error Was Harmless
May a federal habeas court grant relief based solely on its conclusion that the Brecht v. Abrahamson (1993) 507 U.S. 619 test is satisfied, as the Sixth Circuit held, or must the court also find that the state court's Chapman v. California (1967) 386 U.S. 18 application was unreasonable under 28 U.S.C. § 2254(d)(1), as the Second, Third, Seventh, Ninth,…
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?
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).)
Admission of Evidence and the Confrontation Clause
Whether, or under what circumstances, a criminal defendant who opens the door to responsive evidence also forfeits his right to exclude evidence otherwise barred by the Confrontation Clause. In 2006, a stray 9-millimeter bullet killed a 2-year-old child in the Bronx. The State charged Nicholas Morris with the murder, but after trial commenced, it offered him a plea deal for…
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?
Batson/Wheeler–Discovery of Prosecutor’s Jury Selection Notes
Does Penal Code section 1054.9 entitle an eligible defendant to discovery of a trial prosecutor's notes about jury selection with respect to a claim of Batson/Wheeler (Batson v. Kentucky (1986) 476 U.S. 79; People v. Wheeler (1978) 22 Cal.3d 258) error at trial? Trial court properly granted defendant’s postconviction discovery request for the prosecution’s jury selection notes where the prosecution impliedly waived any work product…
SB 1437–Record of Conviction When Considering Prima Facie Showing of Eligibility and Timing of Right to Appointed Counsel
(1) May superior courts consider the record of conviction in determining whether a defendant has made a prima facie showing of eligibility for relief under Penal Code section 1170.95? (2) When does the right to appointed counsel arise under Penal Code section 1170.95, subdivision (c)? Held: When a defendant files a complying petition for resentencing under Penal Code section 1170.95,…
Does Pursuing a Person Suspected of Committing a Misdemeanor Categorically Qualify as an Exigent Circumstance Sufficient for a Warrantless Home Search
Whether the pursuit of a person whom a police officer has probable cause to believe has committed a misdemeanor categorically qualifies as an exigent circumstance sufficient to allow the officer to enter a home without a warrant. Held: The Fourth Amendment ordinarily requires that police officers get a warrant before entering a home without permission. But an officer may make…
Retroactivity of Ramos v. Louisiana
Whether the U.S. Supreme Court's decision in Ramos v. Louisiana (2020) 590 U. S. ___ [140 S.Ct. 1390], applies retroactively to cases on federal collateral review. Held: Last Term in Ramos v. Louisiana, 590 U. S. __, 140 S. Ct. 1390, 206 L. Ed. 2d 583 (2020), this Court held that a state jury must be unanimous to convict a criminal defendant…
Community Caretaking Exception to the Warrant Requirement and the Home
Whether the “community caretaking” exception to the Fourth Amendment’s warrant requirement extends to the home. Held: Decades ago, this Court held that a warrantless search of an impounded vehicle for an unsecured firearm did not violate the Fourth Amendment. Cady v. Dombrowski, 413 U. S. 433, 93 S. Ct. 2523, 37 L. Ed. 2d 706 (1973). In reaching this conclusion,…
Whether Eighth Amendment Requires Finding that a Juvenile is Permanently Incorrigible Before Imposing an LWOP Sentence
Whether the Eighth Amendment requires the sentencing authority to make a finding that a juvenile is permanently incorrigible before imposing a sentence of life without parole. Held: "Under Miller v. Alabama, 567 U. S. 460, 132 S. Ct. 2455, 183 L. Ed. 2d 407 (2012), an individual who commits a homicide when he or she is under 18 may be sentenced to life…
Is Unsuccessful Attempt to Detain Suspect by Use of Physical Force a “Seizure”
Police officers shot Petitioner, but she drove away and temporarily eluded capture. In this excessive force suit, the district court granted summary judgment for the officers on the ground that no Fourth Amendment “seizure” occurred. The Tenth Circuit affirmed, reasoning that an officer’s application of physical force is not a seizure if the person upon whom the force is applied…
Whether Conviction for Human Trafficking of a Minor (PC 236.1, subd. (c)(1)) was Proper Where Defendant was Communicating with Adult Police Officer
Did the Court of Appeal err in reversing defendant's conviction for human trafficking of a minor (Pen. Code, § 236.1, subd. (c)(1)) on the ground that defendant was communicating with an adult police officer posing as a minor rather than an actual minor? Opinion By: Justice Corrigan (unanimous decision) A defendant may be convicted of human trafficking of a minor under…
Prop. 57–CDCR Excluding Sex Offenders From Early Parole Consideration
Under Proposition 57 (Cal. Const., art. I, § 32), may the California Department of Corrections and Rehabilitation categorically exclude from early parole consideration all prisoners who have been previously convicted of a sex offense requiring registration under Penal Code section 290? On 10/8/2020, the court directed the parties to file supplemental briefs addressing the following issue: Did the California Department…
IAC for Failure to Investigate and Appellate Review of IAC Claim
(1) Did defense counsel render ineffective assistance by failing to consult a qualified expert on determining time of death and failing to present evidence regarding defendant's clothing around the time of the crime? (2) Did the decision of the Court of Appeal adhere to the controlling standards of appellate review? [Editor's Note: In 2015, the Supreme Court issued an order to…
Appellate Review Conservatorship Proceedings
On appellate review in a conservatorship proceeding of a trial court order that must be based on clear and convincing evidence, is the reviewing court simply required to find substantial evidence to support the trial court's order or must it find substantial evidence from which the trial court could have made the necessary findings based on clear and convincing evidence?…
Imposition of PC 12022.53(e) Enhancements Not Pleaded
Were the enhancements under Penal Code section 12022.53, subdivision (e), improperly imposed as to counts 3 through 7 because the prosecution did not specifically plead a violation of this subdivision as to those counts? (See People v. Mancebo (2002) 27 Cal.4th 735.) Opinion By: Justice Kruger (unanimous decision) Held: Trial court erred by imposing vicarious firearm use enhancements (Pen. Code, § 12022.53, subd.…
Request to Answer Question of State Law–Habeas Deadlines
The California Supreme Court granted the Ninth Circuit's request for the court to decide a question of California law. The question presented, as phrased in the request, is: When a state habeas petitioner has no good cause for delay, at what point in time is that state prisoner's petition, filed in a California court of review to challenge a lower…
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? Review on this issue has also been granted with briefing deferred in: People v. Hicks (2019) 40 Cal.App.5th 320, review granted 11/26/2019 (S258946/B291307) People v. Belloso (2019) 42…
Prosecutorial Misconduct–Improper Vouching for Correctional Officers
Did the prosecutor improperly vouch for the testifying correctional officers by arguing in rebuttal that they had no reason to lie, would not place their careers at risk by lying, and would not subject themselves to possible prosecution for perjury? Opinion By: Justice Groban (unanimous decision) Held: The prosecutor impermissibly vouched for witness credibility by asserting in closing argument that two…
Prop. 47 — Taking a Vehicle
In this case in which briefing was previously deferred pending decision in People v. Page (2017) 3 Cal.5th 1175, the court ordered the parties to brief the following question on 2/21/2018: Does equal protection or the avoidance of absurd consequences require that misdemeanor sentencing under Penal Code sections 490.2 and 1170.18 extend not only to those convicted of violating Vehicle Code section…
Prop 47–Identity Theft
May a felony conviction for the unauthorized use of personal identifying information of another (Pen. Code, § 530.5, subd. (a)) be reclassified as a misdemeanor under Proposition 47 on the ground that the offense amounted to Penal Code section 459.5 shoplifting? Opinion By: Justice Cuéllar (unanimous decision) Held: A felony conviction for misuse of personal identifying information (Pen. Code, § 530.5,…
Probation–Finality of Judgment for Purposes of Applying Change in Law
When is the judgment in a criminal case final for purposes of applying a later change in the law if the defendant was granted probation and imposition of sentence was suspended? Held: An ameliorative statute applies to all nonfinal cases, including those in which a defendant is placed on probation, with imposition of sentence suspended, and where no appeal is…
Challenge to Juvenile Court’s Failure to Expressly Declare Offense a Felony or Misdemeanor
Can the juvenile court's failure to expressly declare whether an offense is a felony or a misdemeanor (see In re Manzy W. (1997) 14 Cal.4th 1199) be challenged on appeal from orders in a subsequent wardship proceeding? Opinion By: Justice Corrigan (unanimous decision) Held: A delinquent minor may not challenge the juvenile court's failure to declare a "wobbler" offense a misdemeanor or a…
Prop.47–Direct Application Where Offense Occurred Before Prop. 47 Enacted, But Trial/Sentencing Occurred After Effective Date
On 3/21/2018, the Court ordered briefing in a previously held case on the following issue: Does Penal Code section 490.2, added by Proposition 47, effective November 5, 2014, apply directly (i.e., without a petition under Penal Code section 1170.18) in trial and sentencing proceedings held after Proposition 47's effective date, where the charged offense was allegedly committed before Proposition 47's…
Double Jeopardy
Did the Court of Appeal err by holding that double jeopardy prevents retrial of defendant for first degree murder where the jury did not return a verdict on that offense and deadlocked on the lesser included offenses of second degree murder and voluntary manslaughter, because the trial court failed to afford the jury an opportunity to return a partial acquittal…
Burglary Tools–Pliers
Did the Court of Appeal err in holding that a pair of pliers, which the defendant used to remove an anti-theft device from a pair of blue jeans in a department store, qualified as a burglary tool within the meaning of Penal Code section 466? Held: Criminal liability for possession of burglary tools requires a showing the defendant intended to…
Appointed Counsel for Misdemeanant for People’s Appeal
Is the Appellate Division of the Superior Court required to appoint counsel for an indigent defendant charged with a misdemeanor offense on an appeal by the prosecution? Held: An indigent defendant respondent in a pretrial prosecution appeal is entitled to appointment of counsel. The trial court granted defendant's motion to suppress evidence (Pen. Code, § 1538.5) in a misdemeanor case, and…
IAC for Failure to File Notice of Appeal When There is an Appeal Waiver
Does the "presumption of prejudice" recognized in Roe v. Flores-Ortega (2000) 528 U.S. 470, apply where a criminal defendant instructs his trial counsel to file a notice of appeal but trial counsel decides not to do so because the defendant's plea agreement included an appeal waiver? (Garza v. State (Idaho 2017) 405 P.3d 576, cert. granted 6/18/2018 (17-1026).) [Editor's Note: In Roe v. Flores-Ortega, the court…
Converting Restitution Order to Civil Judgment
(1) Did the juvenile court have the authority to convert a restitution order to a civil judgment at the completion of deferred entry of judgment? (2) Did the juvenile court err by ruling that restitution could be paid from federally-protected Social Security benefits? Held: Where minor was granted deferred entry of judgment and successfully completely probation, juvenile court did not…
Excessive Fines Clause Applicable to States
Whether the Eighth Amendment's Excessive Fines Clause is incorporated against the States under the Fourteenth Amendment. Held: The Eighth Amendment's excessive fines clause is an "incorporated" protection applicable to the States through the Fourteenth Amendment's due process clause. Timbs pleaded guilty in Indiana state court to drug charges. Indiana sought civil forfeiture of his vehicle, valued at $42,000, which was over…
Deadly or Dangerous Weapons–Butter Knife
Can a butter knife with a rounded end and a serrated edge qualify as a deadly or dangerous weapon under Penal Code section 245, subdivision (a)(1)? Held: Insufficient evidence supported juvenile court's finding that minor violated Penal Code section 245, subdivision (a)(1) because there was no substantial evidence the minor's use of a butter knife was likely to cause great…
Prosecutor’s Improper Dismissal of a Grand Juror
Was defendant denied a "substantial right" (People v. Standish (2006) 38 Cal.4th 858, 882) by the prosecutor's improper dismissal of a grand juror? Held: A prosecutor's dismissal of a grand juror violates Penal Code section 939.5; only the grand jury foreperson may dismiss a grand juror. Avitia allegedly drove drunk, crashed into another car, and killed the other driver. The prosecution filed…
Confidentiality of SVP Treatment Information
(1) Is an expert retained by the prosecution in a proceeding under the Sexually Violent Predator Act entitled to review otherwise confidential treatment information under Welfare and Institutions Case section 5328? (2) Is the district attorney entitled to review medical and psychological treatment records or is access limited to confidential treatment information contained in an updated mental evaluation conducted under…
Forgery–Determining Value of Uncashed Forged Check
For the purpose of the distinction between felony and misdemeanor forgery, is the value of an uncashed forged check the face value (or stated value) of the check or only the intrinsic value of the paper it is printed on? Held: The value of a forged check is the amount written on the check. In July 2012, Franco was found in…
