caclr_header_template1 California Criminal Law Reporter

Recent Defense Victories

Imposition of mandatory consecutive terms for the sex offenses based on the court’s finding of separate occasions violated the Sixth Amendment. (823)
Defendant argued the trial court infringed his right to a jury trial when, as mandated by Penal Code section 667.6(d) it imposed full, separate and consecutive terms on all 22 counts based on a fact found not by the jury, but rather, the judge—namely, that he committed the crimes on separate occasions. Insofar as the provision mandated full consecutive terms, it increased the mandatory minimum sentence based on judicial factfinding, which violated the Sixth Amendment as determined in Alleyne v. U.S. (2013) 570 U.S. 99.
People v. Johnson 88 Cal.App.5th 487, ____ Cal.Rptr.3d ____, 2023 D.A.R 1385 (1st Dist. 2023) February 21, 2023 (A162599)
Inmate “kite” sent by an inmate to his attorney was not covered by the attorney-client privilege where the inmate did not write the note and it was addressed to someone other than the attorney. (660)
A suspected inmate “kite,” a written message sent in violation of jail notes was not covered by the attorney-client privilege where it was contained in an envelope sent by an inmate to his attorney but was addressed to someone other than the attorney and appeared to be written by someone other than the client inmate. The document was not a confidential communication to the attorney, and was not privileged.
People v. Superior Court (Cortez) 87 Cal.App.5th 474, ____ Cal.Rptr.3d ____, 2023 D.A.R 300 (6th Dist. 2023) January 12, 2023 (H049188)
Collateral estoppel barred defendant’s 2021 challenge to a claim raised under section 1473.7, where the court had rejected the same issue in 2018. (598)
Defendant appealed an order denying a motion under Penal Code section 1473.7 (failure to understand immigration consequences before a plea) filed in 2021. However, the court of appeal had denied a similar motion in 2018 and a later amendment to the provision did not change the issue. Since the new motion was not based on a new law, the claim was precluded by collateral estoppel.
People v. Demontoya 85 Cal.App.5th 1159, ____ Cal.Rptr.3d ____, 2022 D.A.R 12255 (4th Dist. 2022) December 06, 2022 (D079532)
Trial counsel was not ineffective for failing to advise defendant about a potential SVP commitment after serving his prison term. (624)
Trial counsel did not render ineffective assistance by failing to advise defendant before the plea that he could be subject to a lifetime commitment as a sexually violent predator after service of his prison term because the SVP commitment is a collateral consequence of a guilty plea.
In re Tellez 84 Cal.App.5th 292, ____ Cal.Rptr.3d ____, 2022 D.A.R 10874 (4th Dist. 2022) October 18, 2022 (D079716)
The prosecutor did not commit prejudicial misconduct by misgendering the defendant at trial. (630)
At the time of the arrest for evading police, the defendant identified as a female, but at trial identified as a male. Defendant argued the prosecutor committed misconduct by misgendering the defendant by using the female pronoun when referring to him at trial. However, there was no indication in the record that the misgendering affected the verdict, and the court rejected the argument that prejudice should be presumed.
People v. Zarazua 85 Cal.App.5th 639, ____ Cal.Rptr.3d ____, 2022 D.A.R 11862 (1st Dist. 2022) November 21, 2022 (A163474)
Equal protection issue regarding the a waiver of jury trial rights in an SVP case was not forfeited where counsel sought to proceed with a court trial. (892)
Defendant in a sexually violent predator case, argued the failure to obtain a proper waiver of his jury trial waiver violated equal protection given the different result in cases regarding other civil commitments. The state argued the issue was forfeited since it was not raised in the trial court. However, the issue could be heard where his defense counsel wanted to proceed with a court trial. The matter was remanded to allow the defendant an opportunity to assert the equal protection challenge.
People v. Washington 72 Cal.App.5th 453, ____ Cal.Rptr.3d ____, 2021 D.A.R 12462 (2nd Dist. 2021) December 03, 2021 (B299238)