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…
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 (Pen. Code, § 352.2). Review on this issue has also been granted with briefing deferred in: People v. Venable (E071681) [nonpub. opn.], review granted 5/17/2023 (S279081)
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: People v. Garcia…
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: People v. Hernandez (C095190) [nonpub. opn.], review granted 12/28/2022 (S277044) People v. Nixon (C094767) [nonpub. opn.], review granted…
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: People v. Lee (B300756, B305493) [nonpub. opn.], review granted 10/19/2022 (S275449) People v. Nunez (F080359) [nonpub. opn.], review granted 10/19/2022 (S275838) People v. Trevino (F080725)…
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…
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…
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…
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.) (People v. Salazar (2022) 80 Cal.App.5th 453, review granted 10/12/2022 (S275788/B309803).) Review on…
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? Review on this issue has also been granted with briefing deferred in: People v.…
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…
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? Review on this issue has also been granted with briefing deferred in: People v. Ballardo (B290567) [nonpub. opn.], review granted 6/29/2022 (S274469) Johnson v. Superior Court (B319328) [nonpub. opn.], review granted 7/13/2022 (S274569)…
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…
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…
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…
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…
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? (People v. Faial (2022) 75 Cal.App.5th 738, review granted 5/18/2022 (S273840/A159026).) Review on this issue has also been granted with briefing deferred in: Kuhnel v. Superior Court (2022) 75 Cal.App.5th 726, review granted 6/1/2022…
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?
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?
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?
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)?…
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…
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…
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: People v. Andrade (Feb. 14, 2022, F081878) [nonpub. opn.], review granted 4/20/2022 (S273659) People v.…
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…
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 plea…
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)?
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?
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?
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…
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? Review on this issue has also been granted with briefing deferred in: People v. Curry (2021) 62 Cal.App.5th 314, review granted 7/21/2021 (S267394/C090409) People v. Wade (Apr. 23, 2021, C090655) [nonpub. opn.], review granted 7/14/2021 (S268936) People v. Graham (2021) 64 Cal.App.5th 827, review…
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? Review on this issue has also been granted with briefing deferred in: People v. Brown (Feb.…
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).)
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?
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 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?
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…
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.
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…
