THE WEEK’S CASES: for the week ending September 23, 2016
by Al Menaster, Deputy Public Defender, Los Angeles County Public Defender’s Office.
ENTRY WITH INTENT TO COMMIT CONSPIRACY TO STEAL IS STILL COVERED BY PROP. 47
The DA here appeals from the trial court’s order granting Prop. 47 relief. First the DA argues that the defense failed to prove that the inmate was eligible in the original pleading. The C/A says that the trial court has discretion to conduct a hearing even absent evidence that the inmate is eligible. Moreover, if the court denies relief on that basis, it must permit the inmate to file a supplemental petition with evidence of eligibility. Prop. 47 created PC 459.5, shoplifting, entering a commercial establishment during regular business hours with intent to commit theft of property valued at not more than $950. The DA claims that the defendant here wasn’t eligible for PC 459.5, shoplifting, because she didn’t enter Sears only with the intent to commit larceny. She entered with an accomplice, so she also entered with the intent to commit conspiracy, rendering her ineligible for 459.5. The C/A rejects this position, saying that the conspiracy was a conspiracy to commit theft, so the entry was really to commit theft, and that permits a conviction of only 459.5.
People v. Huerta; E065365; 9/21/16; C/A 4th, Div. 2
PROP. 47 AND RECEIVING A STOLEN VEHICLE [More…] »
Annual Felony Defense Seminar – Yosemite National Park – Nov. 11-12, 2016
The California Public Defenders Association presents…
21st Annual Felony Defense Practice Seminar
Friday & Saturday, November 11-12, 2016
At Half Dome Village, a.k.a. Curry Pavilion, in Yosemite National Park!
Don’t miss this opportunity for an excellent training program in an excellent location!
Lodging reservations see below. Please note: Deadline for discounted lodging reservations is Oct. 10, 2016.
Kathleen Cannon, Attorney at Law, San Diego, California
Charles Denton, Assistant Public Defender, Alameda County
Bart Sheela, Deputy Alternate Public Defender, San Diego County
Join us for this program that promises to provide an informative and practical approach to handling these difficult cases.We have developed an excellent line up of well-known experts who will be there to give you insights into how you can approach a variety of issues that arise in felony defense practice with better results.
CPDA has blocked a large group of lodging rooms at the Yosemite National Park Valley Lodge at a special rate. To reserve lodging at Yosemite Valley Lodge (inside the Park), please refer to the information included below for details. The program registration fee includes syllabus, reception on Friday, and breakfast on Saturday. Please note that you must make your lodging reservation immediately. MCLE & Legal Specialization credits apply (see below).
PROGRAM SCHEDULE – PROGRAM NUMBER S-566
DAY ONE – Friday, November 11, 2016 Half Dome Village
12:00 p.m. Registration & Check-In, Curry Pavilion. Soft Drinks & Chips
1:00 p.m. New Sentencing Practices Serving the Needs of Defendants – What Every Defense Attorney Needs To Know – Honorable Marion Gaston, Judge, San Diego Superior Court, San Diego County
2:30 p.m. Break
2:45 p.m. Enforcing the Law–BOLO for Prosecution Misconduct [1.5 hrs Ethics credit]
Michael Ogul, Deputy Public Defender, Santa Clara County [More…] »
New Report – Forensic Science in Criminal Courts: Ensuring Scientific Validity of Feature-Comparison Methods
The President’s Council of Advisors on Science and Technology (PCAST) has released its report: Forensic Science in Criminal Courts: Ensuring Scientific Validity of Feature-Comparison Methods.
President’s Council of Advisors on Science and Technology recommends actions to strengthen forensic science and promote its more rigorous use in the courtroom.
Today, the President’s Council of Advisors on Science and Technology (PCAST) released its latest report to the President, Forensic Science in Criminal Courts: Ensuring Scientific Validity of Feature-Comparison Methods. “Forensic science” refers to the application of scientific or technical practices to the recognition, collection, analysis, and interpretation of evidence for criminal and civil law or regulatory issues. Developments over the past two decades—including wrongful convictions in which forensic science has played a role and scientific studies of forensic science methods—have called increasing attention to the question of the scientific validity and reliability of some important forms of forensic evidence and of testimony based upon them.
The study that led to the report was a response to the President’s question to his PCAST in 2015, as to whether there are additional steps on the scientific side, beyond those already taken by the Administration in the aftermath of a highly critical 2009 National Research Council report on the state of the forensic sciences, that could help ensure the validity of forensic evidence used in the Nation’s legal system.
PCAST concluded that two important gaps warranted the group’s attention: (1) the need for clarity about the scientific standards for the validity [More…] »
Criminal Law Case Summaries: August-September 2016
by Gary Mandinach, Attorney at Law, California Appellate Project, Los Angeles, California
1. People v. Garner (2016) Cal.App.4th , reported on August 22, 2016, in 2016 Los Angeles Daily Journal 8651, the Second Appellate District, Division 4 held that the trial court erred in denying the defendant’s petition for resentencing under Prop 47. The Court of Appeal held that a felony conviction for second degree commercial burglary is reducible to misdemeanor shoplifting where the defendant entered the “commercial establishment” with intent to commit theft by false pretenses.
2. People v. Newman (2016) Cal.App.4th , reported on August 22, 2016, in 2016 Los Angeles Daily Journal 8631, the Second Appellate District, Division 2 held that the trial court did not err in denying the defendant’s motion to have his sentence modified under Prop 36, section 1170.126. In determining whether a defendant’s “third strike” conviction was for a violent felony, which in turn makes him ineligible for resentencing under the Three Strikes Reform Act, a court is empowered to consider the record of conviction and to make factual findings by a preponderance of the evidence, even if those findings were not made by the jury or the trial court in convicting defendant of the offense. (See People v. Frierson (2016) Cal.App.4th , reported on July 21, 2016, in 2016 Los Angeles Daily Journal 7352; contra to People v. Arevalo (2016) 244 Cal.App.4th 836.)
3. People v. Wagner (2016) Cal.App.4th , reported on August 22, 2016, in 2016 Los Angeles Daily Journal 8653, the Fourth Appellate District, Division 1 held that the trial court erred when it incorrectly concluded it lacked jurisdiction under section 1473.6 to hear claims related to improper revocation of parole. Section 1473.6 gives the trial court jurisdiction to vacate its order revoking the defendant’s parole based on evidence purporting to show that in pursuing revocation of his parole, a parole officer acted in retaliation for litigation defendant initiated against another law enforcement officer and testified falsely at the revocation hearing.
4. People v. Grimes (2016) Cal.4th , reported on August 23, 2016, in 2016 Los Angeles Daily Journal 8698, the California Supreme Court held that statements by since-deceased accomplice, offered by defense as declarations against penal interest in an effort to deflect responsibility for murder from defendant to the accomplice, were so disserving to the declarant’s interests that a reasonable person in his position would not have made them unless they were true, making them admissible under Evidence Code section 1230. The erroneous exclusion of statements against interest was harmless in the guilt phase, since defendant was guilty beyond a reasonable doubt under the felony-murder rule regardless of his role in the actual killing, but it was prejudicial in the penalty phase.
5. People v. Rodriguez (2016) Cal.4th , reported on August 23, 2016, in 2016 Los Angeles Daily Journal 8671, the California Supreme Court held the the presiding judge abused his discretion by ruling the judge who made the ruling on the motion to suppress, unavailable solely by reason of his having been transferred to another courthouse. A judge may be found unavailable for purposes of section 1538.5, subdivision (p), thereby permitting a different [More…] »
46 California Law Professors’ Letter Opposes Persky Ouster
Modern stained glass window depicting the cross balancing the scales of justice as symbol of social justice
by Karen Sloan, The Recorder | July 28, 2016
A group of 46 California law professors—including several prominent deans and former deans—have issued a letter opposing the campaign to recall Santa Clara Superior Court Judge Aaron Persky.
Erwin Chemerinsky, dean of the University of California, Irvine School of Law; Herma Hill Kay, former dean of the University of California, Berkeley School of Law; and Bryant Garth, former dean of Southwestern Law School, are among the legal academics who called judicial recalls “a serious threat to the rule of law.”
The letter is in reaction to a push to recall Persky, led by Stanford Law School professor Michele Dauber, for what critics see as a too-lenient six-month jail sentence for Brock Turner, a Stanford undergraduate convicted of sexual assault. Persky’s June 2 decision sparked debate on the Palo Alto campus with law faculty and students weighing in on both sides. Dauber, who has taught at Stanford since 2001, has been a vocal advocate of stronger campus sexual assault policies.
The July 28 letter sent to San Jose Mercury News shows that the wider legal academy is also divided over the use of the recall process to police judges. Signatories include 12 who teach at Stanford Law along with professors from nine other schools in California.
Full Recorder news article at this location: http://defender411.us/2bjGLOL
TEXT OF LETTER INCLUDED BELOW. [More…] »
A Criminal Defense Practice Seminar in Palm Springs – Saturday, October 22, 2016
The California Public Defenders Association presents…
A Criminal Defense Practice Seminar in Palm Springs!
Saturday, October 22, 2016
At The DoubleTree Golf Resort Palm Springs
67967 Vista Chino, Cathedral City, California 92234
For Lodging see below – discount lodging cut-off date is almost here.
Kathleen Cannon, Attorney at Law, Vista, California
Bart Sheela, Deputy Alternate Public Defender, San Diego County
Join us this year in beautiful Palm Springs and take advantage of this opportunity to hear a variety of highly experienced trial attorneys share their thoughts on many important topics related to Criminal Defense. CPDA has blocked a large group of lodging rooms at the DoubleTree Golf Resort Palm Springs at a discounted rate, so be sure to tell the hotel that you are with CPDA when you call to make reservations to take advantage of this special rate.
This program qualifies for California State Bar MCLE participatory credits, see box below. There is an early cut-off date for the special lodging rate, so make your reservations ASAP. Group-rate reservations cut-off date: September 21, 2016.
PROGRAM SCHEDULE – SATURDAY, OCTOBER 22, 2016 S-565
8:30 a.m. Litigating Fingerprint Evidence Using – What`s New in the World of Forensic Science
–> Jennifer Friedman, Deputy Public Defender, Los Angeles County
9:45 a.m. Strategic Negotiations
–> Geoffrey Canty, Deputy Public Defender, San Bernardino, County
11:00 a.m. Break [More…] »
Criminal Law Case Summaries: May-June 2016
by Gary Mandinach, Attorney at Law, California Appellate Project, Los Angeles, California
1. In re Ivan N. (2016) Cal.App.4th , reported on May 23, 2016, in 2016 Los Angeles Daily Journal 4775, the Fourth Appellate District, Division 1 held that the juvenile court did not err in failing to conduct an additional hearing regarding his educational preferences as a “foster child,” after he was adjudication a ward of the court under Welfare and Institutions Code section 602, and a dispositional order made under Welfare and Institutions Code section 727. Neither Education Code section 48853.5 which requires consideration of a preference by a “foster child” or other minor subject to the auspices of the juvenile court to continue attending the minor’s school of origin, nor Rule of Court, Rule 5.651(a) or 5.790, requires the juvenile court to conduct an additional hearing, in a case where the court has issued a dispositional order requiring community-based treatment (see Ed. Code ‘ 48645.1) and potentially resulting in the minor=s placement at a juvenile court school, to determine whether the minor could be returned to his high school of origin after he received a short period of such treatment. (See In re Angela M. (2003) 111 Cal.App.4th 1392, 1397-1399.)
2. People v. Robinson (2016) Cal.4th , reported on May 24, 2016, in 2016 Los Angeles Daily Journal 4846, the California Supreme Court held that misdemeanor sexual battery (‘ 243.4, subd. (e)(1)) is not a lesser included offense of sexual battery by misrepresentation of a professional purpose (‘ 243.4 subd. (c)) where the same evidence is required to support all elements of misdemeanor sexual battery and sexual battery by fraudulent representation, the former offense is not a lesser included offense of the latter. While it is true that every defendant who commits sexual battery by misrepresentation of professional purpose also commits misdemeanor sexual battery; the victim has been touched for a sexual purpose without consenting. However, the victim’s lack of consent arises from a particular circumstance created by the defendant’s misrepresentation. Moreover, a charge of sexual battery under section 243.4, subdivision (c) does not notify the defendant of the need to contest the consent issue on any basis other than the alleged fraudulent representation. [More…] »
Defender 411 Radio
Defender 411 Radio Station. This station includes legislative news updates, information on upcoming seminars long before they’re distributed, president’s messages, alerts regarding state bar news and calls for public comment; and other audio resources, not all of which qualifies for MCLE self-study credits (a calendar will be added that so notes those broadcasts that do, similar to Claranet 411 Radio). News flashes and other urgent messages fo for members will interrupt any broadcast currently in progress.
New mobile apps for CPDA members – Download from the Apple App and/or the Google Play store
The CPDA Members App. The CPDA Members App was created to help build a closer-knit community among members. Members of CPDA who download the app can join conversations, share photos, learn about events, and locate contact information for all members.
The California Public Defenders Association (CPDA) is a nonprofit organization that serves as a resource center for its members who are all criminal defense attorneys – both private attorneys who practice criminal defense in California, and public defenders who are criminal defense attorneys employed by local county public defender agencies. The organization was formed over 40 years ago and today provides numerous on-site training programs through the year and in different locations held throughout the state of California, all designed exclusively for criminal defense attorneys who practice in California. Together, the two groups of criminal defense attorneys (private defenders and public defenders) comprise the membership of CPDA, which totals over 3,400 practicing criminal defense attorneys in California, in particular, but the membership is open to criminal defense attorneys in other states and several hundred from throughout the U.S. are associate members of CPDA.
Two options to download the CPDA Members App:
1. Download from the Google Play Store:
2. Download from the Apple App Store:
The CLARANET App. For CPDA members with the additional “Claranet” subscription, there’s an additional app that is [More…] »
California – 2016 Cumulative Legislative Update below includes new posts through September 28, 2016
SACRAMENTO – Governor Edmund G. Brown Jr. today announced that he has signed the following bills:
• AB 278 by Assemblymember Roger Hernández (D-West Covina) – Municipal elections.
• AB 350 by Assemblymember Luis Alejo (D-Salinas) – District-based municipal elections: preapproval hearings.
• AB 620 by Assemblymember Roger Hernández (D-West Covina) – High-occupancy toll lanes: exemptions from tolls.
• AB 813 by Assemblymember Lorena Gonzalez (D-San Diego) – Criminal procedure: postconviction relief.
• AB 1289 by Assemblymember Jim Cooper (D-Elk Grove) – Transportation network companies: participating drivers: penalties.
• AB 1322 by Assemblymember Tom F. Daly (D-Anaheim) – Alcoholic beverages: licenses: beauty salons and barber shops.
• AB 1554 by Assemblymember Jacqui V. Irwin (D-Thousand Oaks) – Powdered alcohol.
• AB 1765 by Assemblymember Jacqui V. Irwin (D-Thousand Oaks) – CaliforniaVolunteers: nonprofit public benefit corporation.
• AB 1889 by Assemblymember Kevin Mullin (D-South San Francisco) – High-Speed Rail Authority: high-speed train operation.
• AB 1919 by Assemblymember Bill Quirk (D-Hayward) – Local transportation authorities: bonds.
• AB 1926 by Assemblymember Jim Cooper (D-Elk Grove) – Public works: prevailing wage: apprentices.
• AB 1934 by Assemblymember Miguel Santiago (D-Los Angeles) – Planning and zoning: development bonuses: mixed-use projects.
• AB 1960 by Assemblymember Tom W. Lackey (R-Palmdale) – Vehicles: Basic Inspection of Terminals program.
• AB 2027 by Assemblymember Bill Quirk (D-Hayward) – Victims of crime: nonimmigrant status.
• AB 2126 by Assemblymember Kevin Mullin (D-South San Francisco) – Public contracts: Construction Manager/General Contractor contracts.
• AB 2220 by Assemblymember Jim Cooper (D-Elk Grove) – Elections in cities: by or from district.
• AB 2298 by Assemblymember Shirley N. Weber (D-San Diego) – Criminal gangs. A signing message can be found here.
• AB 2374 by Assemblymember David S. Chiu (D-San Francisco) – Construction Manager/General Contractor method: regional transportation agency: County of Placer: bridges.
• AB 2389 by Assemblymember Sebastian Ridley-Thomas (D-Los Angeles) – Special districts: district-based elections: reapportionment.
• AB 2406 by Assemblymember Tony Thurmond (D-Richmond) – Housing: junior accessory dwelling units.
• AB 2442 by Assemblymember Chris Holden (D-Pasadena) – Density bonuses.
• AB 2466 by Assemblymember Shirley N. Weber (D-San Diego) – Voting: felons.
• AB 2501 by Assemblymember Richard H. Bloom (D-Santa Monica) – Housing: density bonuses.
• AB 2532 by Assemblymember David S. Chiu (D-San Francisco) – Employment services: verification.
• AB 2551 by Assemblymember James M. Gallagher (R-Plumas Lake) – Contract procurement: surface storage projects.
• AB 2556 by Assemblymember Adrin Nazarian (D-Sherman Oaks) – Density bonuses.
• AB 2566 by Assemblymember Adrin Nazarian (D-Sherman Oaks) – Notaries public: acceptance of identification.
• AB 2620 by Assemblymember Matthew M. Dababneh (D-Encino) – Passenger rail projects: funding.
• AB 2686 by Assemblymember Kevin Mullin (D-South San Francisco) – Elections: all-mailed ballot elections.
• AB 2687 by Assemblymember Katcho Achadjian (R-San Luis Obispo) – Vehicles: passenger for hire: driving under the influence.
• AB 2763 by Assemblymember Mike Gatto (D-Glendale) – Transportation network companies: personal vehicles.
• AB 2765 by Assemblymember Shirley N. Weber (D-San Diego) – Proposition 47: sentence reduction.
• AB 2792 by Assemblymember Rob Bonta (D-Alameda) – Local law enforcement agencies: federal immigration policy enforcement: ICE access. A signing message can be found here.
• AB 2839 by Assemblymember Tony Thurmond (D-Richmond) – Criminal penalties: nonpayment of fines.
• SB 66 by Senator Connie M. Leyva (D-Chino) – Career technical education.
• SB 423 by Senator Patricia C. Bates (R-Laguna Niguel) – Surplus household consumer product waste: management.
• SB 448 by Senator Ben Hueso (D-San Diego) – Sex offenders: Internet identifiers.
• SB 552 by Senator Lois Wolk (D-Davis) – Public water systems: disadvantaged communities: consolidation or extension of service: administrative and managerial services.
• SB 693 by Senator Ben Hueso (D-San Diego) – Public contracts: skilled and trained workforce.
• SB 702 by Senator Mike McGuire (D-Healdsburg) – Employment of minors: agricultural packing plants.
• SB 773 by Senator Ben Allen (D-Santa Monica) – Vehicles: registration fraud.
• SB 813 by Senator Connie M. Leyva (D-Chino) – Sex offenses: statute of limitations.
• AB 819 by Senator Bob Huff (R-San Dimas) – Powdered alcohol.
• SB 881 by Senator Robert M. Hertzberg (D-Van Nuys) – Vehicles: violations: payment of fines and bail.
• SB 918 by Senator Andy Vidak (R-Hanford) – Common interest developments.
• SB 958 by Senator Ricardo Lara (D-Bell Gardens) – County of Los Angeles Citizens Redistricting Commission.
• SB 1001 by Senator Holly J. Mitchell (D-Los Angeles) – Employment: unfair practices.
• SB 1046 by Senator Jerry Hill (D-San Mateo) – Driving under the influence: ignition interlock device.
• SB 1108 by Senator Ben Allen (D-Santa Monica) – Elections: state and local reapportionment.
• SB 1134 by Senator Mark Leno (D-San Francisco) – Habeas corpus: new evidence: motion to vacate judgment: indemnity.
• SB 1139 by Senator Ricardo Lara (D-Bell Gardens) – Health professionals: medical degree programs: healing arts residency training programs: undocumented immigrants: nonimmigrant aliens: scholarships, loans, and loan repayment.
• SB 1189 by Senator Richard Pan (D-Sacramento) – Postmortem examinations or autopsies: forensic pathologists.
• SB 1214 by Senator Ben Allen (D-Santa Monica) – University of California: Best Value Construction Contracting Pilot Program.
• SB 1242 by Senator Ricardo Lara (D-Bell Gardens) – Sentencing: misdemeanors.
• SB 1285 by Senator Mark Leno (D-San Francisco) – Alcoholic beverages: licenses.
• SB 1389 by Senator Steven M. Glazer (D-Orinda) – Interrogation: electronic recordation.
Governor Brown also announced that he has vetoed the following bills:
• AB 491 by Assemblymember Lorena Gonzalez (D-San Diego) – English learners: identification: notice.
• AB 650 by Assemblymember Evan Low (D-Campbell) – Taxicab transportation services.
• AB 995 by Assemblymember Frank Bigelow (R-O’Neals) – Farm vehicles: registration exemptions.
• AB 1198 by Assemblymember Matthew M. Dababneh (D-Encino) – School facilities: California School Finance Authority: California Credit Enhancement Program.
• AB 1783 by Assemblymember Bill Dodd (D-Napa) – School facilities: nonstructural earthquake hazards: inspection.
• AB 1831 by Assemblymember Evan Low (D-Campbell) – Health care coverage: prescription drugs: refills. A veto mess[url”>age can be found here.
• AB 1835 by Assemblymember Chris Holden (D-Pasadena) – California Private Postsecondary Education Act of 2009: minimum operating standards: exemptions.
• AB 1996 by Assemblymember Richard S. Gordon (D-Menlo Park) – Private postsecondary education: exemptions.
• AB 2009 by Assemblymember Patty Lopez (D-San Fernando) – Student support services: Dream Resource Liaisons.
• AB 2121 by Assemblymember Lorena Gonzalez (D-San Diego) – Alcoholic beverage control: Responsible Beverage Service Training Program Act of 2016.
• AB 2170 by Assemblymember Jim L. Frazier Jr. (D-Oakley) – Trade Corridors Improvement Fund: federal funds.
• AB 2182 by Assemblymember Kevin Mullin (D-South San Francisco) – School athletics: neurocognitive testing.
• AB 2586 by Assemblymember Mike Gatto (D-Glendale) – Parking.
• AB 2719 by Assemblymember Eduardo Garcia (D-Coachella) – Workforce development: out-of-school youth.
• AB 2847 by Assemblymember Jim Patterson (R-Fresno) – High-Speed Rail Authority: reports.
• SB 959 by Senator Ricardo Lara (D-Bell Gardens) – University of California: contracts: bidding.
• SB 1113 by Senator Jim Beall (D-San Jose) – Pupil health: mental health.
• SB 1132 by Senator Cathleen Galgiani (D-Stockton) – Architects: architects-in-training.
• SB 1289 by Senator Ricardo Lara (D-Bell Gardens) – Law enforcement: immigration.
• SB 1333 by Senator Marty Block (D-San Diego) – State beaches and parks: smoking ban.
• SB 1466 by Senator Holly J. Mitchell (D-Los Angeles) – Early and Periodic Screening, Diagnosis, and Treatment Program: trauma screening.
For full text of the bills, visit: http://leginfo.legislature.ca.gov