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Name: People v. Burnette
Case #: C095825
Opinion Date: 11/17/2023
Attorney: Karriem J. Baker

The Court of Appeal found that appellant’s trial counsel performed ineffectively by not seeking a ruling on mental health diversion based on appellant’s alcoholism, and then failing to file a later petition focused on that mental disorder after stating an intent to do so. Although counsel’s initial failure to seek a ruling was potentially tactical given counsel’s stated intent to file a later petition, there is no tactical reason for failing to file that second petition during the four months between the mental health diversion hearing and appellant’s plea. There is a reasonable probability the trial court would have found appellant suitable for diversion had counsel sought a ruling based on his alcoholism.

The Court of Appeal further rejected the Attorney General’s argument that appellant provided insufficient notice to the prosecution that he was seeking mental health diversion in part based on his alcoholism. First, his petition included an expert’s opinion that his alcoholism was a factor in his conduct and stated he required assessment and treatment. Second, a second expert specifically diagnosed defendant with alcoholism the day after the incident. Finally, the prosecution questioned both experts about appellant’s alcoholism during the hearing.

The judgment was conditionally reversed to give appellant the option to withdraw his plea and seek mental health diversion for alcoholism.

Name: In re D.T.
Case #: F084105
Opinion Date: 12/13/2023
Attorney: Arthur L. Bowie

Appellant entered a plea agreement in 1999 placing him on “probation for life” and committing him under Welfare and Institutions Code section 6500. Appellant further agreed not to object to his annual section 6500 commitment reviews and to waive his presence at all future annual ex parte review hearings. In 2005, the court modified these latter two terms to only require annual review hearings “at [the] Court’s discretion or upon request of counsel.” Appellant later appealed from a 2022 placement order, arguing the lack of a probation report at the review hearing violated the plea agreement.

The Court of Appeal found that if a future allegation is made that appellant violated a rule or regulation that could impact his continuation in a section 6500 facility, yet he either believes or is told he cannot challenge the allegation under the plea agreement, the lack of input from a probation department on the severity of the violation could result in a violation of appellant’s right to due process. It accordingly found appellant did not waive or lose the ability to require the participation of a probation department in his case.

As it was undecided whether the original sentencing county or appellant’s current county of residence should be responsible for appellant’s probation, the court remanded the matter so that a transfer of probation jurisdiction can be pursued under Penal Code section 1203.9. The court further suggested the parties reach an agreement addressing the frequency of reports required by the appropriate probation department.

Name: People v. Magana
Case #: F085087
Opinion Date: 01/08/2024
Attorney: Michelle T. LiVecchi-Raufi

The Court of Appeal reversed the denial of appellant’s Penal Code section 1172.6 petition to vacate his attempted murder conviction because substantial evidence did not support the trial court’s ruling.

The trial court focused on whether appellant had acted with reckless indifference to human life and was a major participant in the underlying felony. This was improper because appellant was not convicted of felony murder and California does not recognize the crime of “attempted felony murder.” The proper question was whether appellant held a specific intent to kill and committed a direct but ineffectual act toward accomplishing the intended killing. More specifically, as an aider and abettor, appellant must have aided and encouraged an attempted murder knowing of the direct perpetrator’s intent to kill and intending to facilitate the killing.

No evidence demonstrated that appellant intended to kill. An older gang member planned the robbery and fired a shotgun at the victim. Appellant did not plan the crime, he was unarmed, he did not provide the shotgun to the shooter, he did not interact with the victim, and nothing shows appellant intended for the shooter to fire at the victim. Neither appellant’s presence at the crime scene nor his knowledge that the shooter was armed established appellant’s own intent to kill; malice may not be imputed to appellant based solely on his participation in the crime. The fact that the shooting occurred during a four-day crime spree did not in and of itself suggest he held an intent to kill.

The Court of Appeal granted appellant’s petition and vacated his conviction for attempted murder. It further held that because the judgment would no longer be final, he would be entitled to the retroactive benefits of both Proposition 57 and Senate Bill No. 1391.