caclr_header_template1 California Criminal Law Reporter

Recent Defense Victories

Section 1170, subd.(d)(2), allowing for recall of an LWOP term and resentencing to life with parole did not provide an adequate remedy for Miller error. (816)
In Miller v. Alabama (2012) 567 U.S. ___, the court found a juvenile homicide offender can only be sentenced to life without parole when the penalty is discretionary and the sentencing court properly exercises its discretion. The court should consider the distinctive attributes of youth when considering an LWOP term. Defendant, whose sentence was final two decades ago, filed a habeas corpus petition seeking resentencing because he received an LWOP sentence without consideration of the Miller factors. The court of appeal determined the existence of Penal Code section 1170, subd.(d)(2), which allowed for a recall and resentencing to life with parole, remedied the defect. However, section 1170, subd.(d)(2) does not provide an adequate remedy for Miller error.
In re Kirchner ____ Cal.5th ____, ____ Cal.Rptr.3d ____, 2017 D.A.R 3901 (2017) April 24, 2017 (S233508)
Defendant who was 16 years old at the time of the charged murder was entitled to the retroactive application of Prop 57 and his case was sent to juvenile court for a transfer hearing. (530)
Following Prop 57, only a juvenile court judge can determine whether a minor can be prosecuted and sentenced as an adult taking into account such factors as the minor's maturity, sophistication and likelihood of rehabilitation. The prosecutor in defendant's case directly filed the charges in adult criminal court. Defendant was retroactively entitled to a transfer hearing in the juvenile court because his case was not yet final on appeal.
People v. Vela ____ Cal.App.5th ____, ____ Cal.Rptr.3d ____, 2017 D.A.R 3958 (4th Dist. 2017) April 24, 2017 (G052282)
Evidence was insufficient to support the robbery conviction of a defendant found in the car ten minutes after the robbery.
Defendant was convicted of robbery after a group of men, reported by witnesses to be African-American robbed a jewelry store and escaped in two cars. The police stopped one car ten minutes after the robbery and defendant was a passenger. No physical evidence linked him to the crime, no witnesses identified him and there was uncontroverted evidence showing one of the cars' occupants had changed between the time of the robbery and the location of the car by the police. The crucial inference that defendant was in the car when it was stopped was speculative. The evidence was insufficient to support the conviction.
People v. Sanford ____ Cal.App.5th ____, ____ Cal.Rptr.3d ____, 2017 D.A.R 3968 (1st Dist. 2017) April 21, 2017 (A145156)
Jurors committed misconduct by conducting an experiment falsely accusing another juror during deliberations to see his reaction to the accusation. (640)
During deliberations in defendant’s child molest case, the jurors performed an experiment to see how a falsely accused person might act. One juror falsely accused another of improper sexual acts and comments. However, the false accusation and the juror’s reaction were not part of the evidence in the case but were presented to, and considered by, the jury in reaching a verdict. This was juror misconduct and required reversal of the convictions.
People v. Wismer ____ Cal.App.5th ____, ____ Cal.Rptr.3d ____, 2017 D.A.R 3861 (4th Dist. 2017) April 20, 2017 (D068743)
Probation condition prohibiting the minor from associating with gangs was unreasonable where his theft offense was unrelated to gang activity. (810)
The juvenile was found to have committed grand theft from a person. The probation condition prohibiting him from associating with gang members and associates was unreasonable because there was no nexus between the offense and gang activity.
In re Edward B. ____ Cal.App.5th ____, ____ Cal.Rptr.3d ____, 2017 D.A.R 3795 (1st Dist. 2017) April 19, 2017 (A148887)
The trial court erred by failing to conduct a Marsden hearing after receiving a letter seeking the discharge of replacement counsel and the substitution of another attorney. (618)
Defendant wrote the trial court a letter complaining about court-appointed counsel. Once the lawyers were removed, the failure to hold a Marsden hearing was moot. However, defendant wrote a similar letter seeking the discharge of replacement counsel. The trial court erred by failing to conduct a Marsden motion at that time. The matter was remanded to allow the court to hold a Marsden hearing. If it finds counsel’s performance was inadequate then his plea will be vacated, but if counsel’s assistance was adequate the judgment will be reinstated.
People v. Armijo ____ Cal.App.5th ____, ____ Cal.Rptr.3d ____, 2017 D.A.R 3775 (2nd Dist. 2017) April 19, 2017 (B266687)