caclr_header_template1 California Criminal Law Reporter

Recent Defense Victories

No certificate of probable cause was required where the defendant alleged IAC for failing to seek a hearing on defendant’s eligibility for mental health diversion. (874)
Defendant pled no contest to carrying a concealed dirk or dagger, and admitted the offense violated probation in a different matter. The trial court sentenced him to two years and eight months. On appeal, he argued the conviction and probation violation should be reversed because his attorney rendered ineffective assistance in failing to request a hearing on his eligibility for mental health diversion under Penal Code section 1001.36. Contrary to the Attorney General’s claim, no certificate of probable cause to appeal was required because defendant did not attack the validity of his plea, and instead challenged the trial court’s sentencing discretion relating to the applicability of section 1001.36.
People v. Hill ____ Cal.App.5th ____, ____ Cal.Rptr.3d ____, 2021 D.A.R. 736 (1st Dist. 2021) January 21, 2021 (A157339)
The trial court prejudicially erred when defining “association” for purposes of the gang enhancement as a relationship between two individuals rather than a association between the crime and a gang. (852)
During deliberations, the jury asked the court to define “association” for purposes of the Penal Code section 186.22(b) gang enhancement. The court responded that association meant two or more people coming together for a common interest and to commit an act. The instruction was erroneous as the court should have said association simply means the crime is connected to a specific gang. The court’s instruction on “association” diverted the jury’s focus away from the crimes association with a gang and towards an association between the two defendants.
People v. Jaimes ____ Cal.App.5th ____, ____ Cal.Rptr.3d ____, 2021 D.A.R. 839 (5th Dist. 2021) January 25, 2021 (F077504)
A health official’s certification of competency does not initiate court proceedings to consider whether a defendant has regained competency, terminating the commitment. (536)
The trial court has the responsibility to determine whether a defendant found incompetent for trial has been restored to competency. The trial court was correct in finding the health official’s certification of competency did not terminate the defendant’s commitment so as to prevent the three year maximum commitment term from accruing.
People v. Carr ____ Cal.App.5th ____, ____ Cal.Rptr.3d ____, 2021 D.A.R 684 (1st Dist. 2021) January 19, 2021 (A158637)
Counsel did not forfeit Dueñas issue by failing to object given the state of the law at the time, and the fact that he had a job when arrested did not show he could pay fines and assessments. (803)
Because counsel could not reasonably have anticipated the change in the law, he did not forfeit Dueñas issue by failing to object to the restitution fine and court assessments. Remand was appropriate due to the undeveloped record, and the court could not speculate that defendant had to ability to pay the fines and fees simply because he was working and had an income before his arrest.
People v. Montes ____ Cal.App.5th ____, ____ Cal.Rptr.3d ____, 2021 D.A.R. 621 (5th Dist. 2021) January 15, 2021 (F078357)
Defendant’s limited waiver to extend the 60-day deadline to conduct a preliminary hearing by a specific amount of time was proper. (524) (588)
A defendant has a right to a preliminary hearing within 60 days of arraignment. Defendant agreed to a limited waiver of that right, consenting to a new date that was 76 days after his arraignment. The prelim was not held by that date, and so defendant moved for dismissal under Penal Code section 859b. The prosecution argued there can be no limited waiver and so defendant’s waver was a general one allowing the prelim to be extended beyond the specified date. However, the limited waiver was valid, and the trial court erred in denying defendant’s motion to dismiss.
Favor v. Superior Court ____ Cal.App.4th ____, ____ Cal.Rptr.3d ____, 2021 D.A.R 541 (4th Dist. 2021) January 13, 2021 (E075340)
Provision reducing felony probation from three years to two is to be applied retroactively. (808) (926)
Defendant was entitled to a reduction of his felony probation term from three years to two because AB 1950, which became effective January 1, 2021, is to be applied retroactively.
People v. Sims ____ Cal.App.5th ____, ____ Cal.Rptr.3d ____, 2021 D.A.R 483 (4th Dist. 2021) January 12, 2021 (D077024)