caclr_header_template1 California Criminal Law Reporter

Recent Defense Victories

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)
The trial court erroneously engaged in factfinding without issuing an order to show cause and holding an evidentiary hearing when finding the defendant was ineligible for SB 1437 relief.
A pre-Banks/Clark felony murder special-circumstance finding does not necessarily preclude relief under Penal Code section 1170.95. The trial court erred in finding defendant ineligible for SB 1437 relief based on a review of the factual summary of the appellate opinion affirming defendant’s original conviction, evidentiary conflicts at trial and the trial court’s findings at the sentencing hearing. The matter was remanded with directions to issue an order to show cause and proceed under section 1170.95 (d).
People v. Harris ____ Cal.App.5th ____, ____ Cal.Rptr.3d ____, 2021 D.A.R. 1513 (2nd Dist. 2021) February 16, 2021 (B300410)
The court erred in denying defendant’s motion to vacate under section 1473.7 where the record did not show defendant understood he would be deported as a result of his plea. (517)
The trial court erred in denying defendant’s motion to vacate his conviction under Penal Code section 1473.7 on the grounds that he had not been sufficiently advised of immigration consequences before his plea. Counsel did not recall giving immigration advisements and the plea form did not show defendant meaningfully understood he would become deportable as a result of his plea.
People v. Rodriguez ____ Cal.App.5th ____, ____ Cal.Rptr.3d ____, 2021 D.A.R. 1553 (4th Dist. 2021) February 16, 2021 (D076917)
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)
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)