caclr_header_template1 California Criminal Law Reporter

Recent Defense Victories

The prosecutor committed misconduct by referring to nonexistent conduct in her closing argument. (634)
The prosecutor committed misconduct during closing argument by making up facts on a point that defendant had specifically denied during his testimony, and there was no other evidence to support that fact in the record. The error did not require reversal of the conviction given the overwhelming evidence of guilt.
People v. Armstrong ____ Cal.5th ____, ____ Cal.Rptr.3d ____, 2019 D.A.R. 932 (2019) February 04, 2019 (S126560)
Four prospective jurors were improperly excused for cause under Hovey voir dire based on answers to a hypothetical question involving aiders and abettors of a robbery. (864)
During Hovey voir dire at defendant’s capital trial, the court excused several prospective jurors based on their ability to impose a death verdict. The court erred by excusing four of them. The prosecutor gave a hypothetical involving the killer, the getaway driver, and the lookout in a bank robbery. The four jurors said they could impose death generally, and in this hypothetical based on the balance of the aggravating and mitigating factors. Given the mild hypothetical referencing aider and bettor liability, many competent jurors might say they would consider life without parole, and those answers do not establish the same jurors would not vote for death in other cases. Individual consideration does not disqualify candidates. The error in excusing four jurors for cause on this basis required a reversal of the death verdict.
People v. Armstrong ____ Cal.5th ____, ____ Cal.Rptr.3d ____, 2019 D.A.R. 932 (2019) February 04, 2019 (S126560)
The trial court erred by instructing jurors that for purposes of section 69, the prosecution need not prove defendant knew the person he was resisting was an executive officer. (252)
Defendant was convicted of attempting to deter and resisting an executive officer in the performance of his duties under Penal Code section 69. However, the trial court prejudicially erred by instructing the jury that the prosecution need not prove that defendant knew the person he was attempting to deter was an executive officer.
People v. Atkins ____ Cal.App.5th ____, ____ Cal.Rptr.3d ____, 2019 D.A.R. 793 (6th Dist. 2019) January 30, 2019 (H044999)
Defendant with a current assault offense and two priors that required sex offender registration, was entitled to early parole consideration under Prop 57. (812)
Under Penal Code section 32, subd.(a)(1), added by Prop 57, any person convicted of a nonviolent felony offense and sentenced to state prison shall be eligible for parole consideration after completing the full term for his or her primary offense. CDCR regulations exclude from parole consideration, an inmate who is convicted of a sex offense that carries a sex offender registration requirement. Defendant was convicted of assault with a deadly weapon but had two prior registerable offenses. Under the plain text of section 32, subd.(a), he was entitled to early parole consideration.
In re Gadlin ____ Cal.App.5th ____, ____ Cal.Rptr.3d ____, 2019 D.A.R. 733 (2nd Dist. 2019) January 28, 2019 (B289852)
Defendant did not waive the right to appeal based on a change in the law of which he was unaware at the time of the plea. (845) (870)
Defendant pled guilty to transporting a controlled substance, and admitted having a prior conviction for possessing cocaine base for sale. The latter triggered imposition of a three year enhancement under Health and Safety Code section 11370.2, subd.(a). Defendant also waived the right to appeal “any sentence stipulated herein.” The court imposed the 11 year stipulated term. Thereafter, the Governor signed SB 180, which amended section 11370, and the provision was determined to be retroactive to cases not yet final on appeal. The defendant’s waiver of the right to appeal the stipulated sentence did not apply to the sentencing error based on the future change in the law.
People v. Wright ____ Cal.App.5th ____, ____ Cal.Rptr.3d ____, January 25, 2019 (4th Dist. 2019) January 25, 2019 (D073038)
Challenges to decisions regarding compassionate release should be made on appeal, and the trial court erred by denying release without finding defendant was a threat. (605) (870)
The secretary of the CDCR requested that the trial court recall defendant’s sentence under Penal Code section 1170, subd. (e), on the grounds that he had less than six months to live, and posed no threat to the community. The trial court thereafter denied the request for compassionate release. The court’s ruling was erroneous because it found he did not deserve to die at home with his family, and the court made no finding as to whether the defendant posed a threat. Challenges to the trial court’s rulings regarding compassionate release should be made on appeal rather than the writ process, and the parties should inform the court of factors relevant to a request for expedited processing of the appeal.
People v. Servin ____ Cal.App.5th ____, ____ Cal.Rptr.3d ____, 2019 D.A.R. 686 (4th Dist. 2019) January 25, 2019 (G056696)