Deputy Public Defender, Los Angeles County Public Defender

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Month's Cases Webinar Registration - December 2025

Searchable Database of This Week's Cases by Al Menaster, 2011-present

Cases for the week ending December 12, 2025
Al Menaster's Audio of The Week's Cases, 12-12-2025

FAILURE TO GET A GENERAL TIME WAIVER ON RE-ARRAIGNMENT VOIDS A PRIOR WAIVER
Lee v. Superior Court; F088934; 12/3/25; C/A 5th

PC 859b, governing preliminary hearing time limits, permits the defense to waive both the 10-day limit when the defendant is in custody solely on the charged case and the 60-day limit.  Remember, the 60-day limit can only be exceeded if the defendant “personally waives” that limit; good cause doesn’t get the DA any more time.  (See Arnold, 59 CA5th 923; Lacayo, 56 CA5th 396.)  What if the defendant does waive time, here a “general time waiver”?  There’s a 2005 C/A case saying that “general time waivers of the time limits in section 859b may not be withdrawn.”  (Love, 132 CA4th 276.)  This C/A agrees, saying, “General time waivers are irrevocable under section 859b.”  That would be fatal to the defense in this case because the defendant gave a general time waiver at his arraignment.  But fortunately the DA later filed an amended felony complaint and no general time waiver was obtained from the defendant at that arraignment.  The C/A says, “Thus, whether there is one arraignment or several, the preliminary hearing cannot be set more than 60 days after any arraignment or entry of any plea.”  The C/A says, “Petitioner’s preliminary hearing was held on a date beyond the limited time waiver he did enter when he was arraigned on that amended complaint.”  The C/A says, “However, while petitioner entered a general waiver of his right to have the preliminary hearing held within 60 days of his initial arraignment, he did not enter a general waiver of his right to have the preliminary hearing held within 60 days of his arraignment on the amended complaint.”  Case dismissed.  I don’t favor general time waivers, for prelims or trials, you should have a great tactical reason for doing so.

MODIFYING THE UNDERLYING CONVICTION PERMITS NULLIFICATION OF A SPECIAL CIRCUMSTANCE
People v. Frederickson; G064577; 12/5/25; C/A 4th, Div. 3

Effective 1/1/24, AB 600 amended PC 1172.1 to allow a trial court, on its own motion, to recall a sentence and resentence a defendant when “applicable sentencing laws at the time of the original sentencing are subsequently changed by new statutory authority or case law.”  (PC 1172.1(a)(1).)  The jury here convicted the defendant of 2 counts of 1st degree murder, along with a firearm use enhancement.  The jury also found true a special circumstance of multiple murders.  25 years later the defense “invited” the judge to strike the firearm use enhancement based on the change in the law permitting judges to do so.  (PC 12022.53(h).)  The judge struck the firearm use enhancement and then reduced the 1st degree murders to 2nd degree murders.  The DA argues that the court couldn’t do that because PC 1385.1 prohibits judges from  “strik[ing] or dismiss[ing] any special circumstance.”  The C/A finesses this conflict, finding that 1385.1 only bars the judge from striking or dismissing a special circumstance or staying the punishment on the special.  But the judge can modify the underlying conviction, and, “If the underlying conviction falls through one of these permissible procedures, then the special circumstance falls by operation of law, not by any action of the ‘judge.’ (§1385.1.) As the trial court correctly found, the special circumstance is not ‘in play.’ There simply is no longer any underlying conviction to which the special circumstance may attach.”  So the C/A affirms.

SB 483 DOES NOT PERMIT A JUDGE TO VACATE A DEATH SENTENCE
People v. Cain; B342911; 12/8/25; C/A 2nd, Div. 6

SB 483, effective 1/1/22, made the elimination of 1‑year prison priors (PC 667.5(b)) fully retroactive.  (PC 1172.75, formerly numbered 1171.1.)  SB 483 provides that when a court determines that an individual is serving a judgment where one or more of the now‑invalid priors were imposed, that sentence must be recalled and the invalid prior(s) stricken.  PC 1172.75(d)(2) provides that when the judge resentences the defendant, the judge is required to “apply any other changes in law that reduce sentences or provide for judicial discretion.”  PC 1509, enacted by Prop. 66, says, “A writ of habeas corpus is the exclusive procedure for collateral attack on a judgment of death.”  Justice Yegan claims that PC 1509 controls over PC 1172.75.  “The key issue is whether a section 1172.75 proceeding to recall a death sentence and resentence the defendant is a collateral attack on the judgment of death.”  Of course, he concludes that it is a collateral attack, and says, “It is inconceivable that the voters intended to allow a court to recall a death sentence and resentence the defendant merely because the original sentence included an invalid one‑year enhancement for a prior prison term.”  Yegan says that the 1-year enhancement is “insignificant.”  True in comparison to a death sentence, but a year is still a year.  Especially in prison.

 
COURT OF APPEAL INTERPRETS SUPREME COURT’S STATEMENT
People v. The North River Insurance Co.; B322752; 11/24/25; C/A 2nd, Div. 8

This case involves a bail forfeiture and an extradition and is not worth reading.  I report this because of this pearl from Justice John Wiley, referring to the Cal. Supremes: “the high court acknowledged Justice Kruger’s concurrence and stated the ‘majority opinion expresses no views on those questions.’  We interpret this to mean the majority expressed no views on those questions.”  No comment.

Cases for the week ending December 5, 2025
Al Menaster's Audio of The Week's Cases, 12-5-2025

REHEARING GRANTED IN CASE ADDING A NEW REQUIREMENT FOR MENTAL HEALTH DIVERSION

People v. Superior Court (Taylor); rehearing granted 11/26/25, opinion vacated; https://shorturl.at/SHkU2
I reported this case last month.  The C/A granted the DA’s writ challenging the granting of mental health diversion (MHD).  The C/A said that they had concerns about whether the defendant would abide by the MHD plan.  The C/A added a requirement for granting MHD, saying that the dangerousness provision “implicitly obligates the court to determine whether the defendant will likely follow through on” the client’s agreement to abide by the MHD plan.  Appellate counsel, Mike Schensul, LA APD, petitioned for rehearing, adding in an argument that the DA can’t writ this issue.  The C/A granted rehearing, vacated its opinion, and requested supplemental briefing.  It’s too early to claim victory, but at least in the short term the previous opinion can’t be cited.  Kudos to Schensul.

A HEARING AND CASE‑SPECIFIC FINDINGS ARE REQUIRED FOR A CHILD TO TESTIFY BEHIND A SCREEN

Pitts v. Mississippi; 24-1159; 11/25/25; US Supremes
Mississippi has a statute which provides child witnesses may testify behind a screen that obstructs the view of the defendant but permits the judge and jury to see the witness.  The Mississippi Supreme Court upheld that procedure used in this case.  The US Supremes in a per curiam opinion (meaning it’s unsigned) summarily reverses.  The Supremes say, “Consistent with the Sixth Amendment, a court may screen a child witness from the defendant when necessary to protect [the child] from trauma that would be caused by testifying in the physical presence of the defendant, at least where such trauma would impair the child’s ability to communicate.”  But the court further says, “The Sixth Amendment tolerates screening in child‑abuse cases only if a court hear[s] evidence and issues a case‑specific finding of [t]he requisite . . . necessity.”  The Supremes reverse because there was no hearing and no case-specific findings.  What about that state statute?  “When state law conflicts with the Federal Constitution, the latter controls,” citing the Supremacy Clause.  (US Const., art. VI, cl. 2.)  The court says that the “usual rule [is] that a defendant is entitled to meet his accusers face to face.”  There’s no comparable statute in Cal.

DENIAL OF MOTION FOR MENTAL HEALTH DIVERSION TO AVOID A CONTINUANCE WAS ERROR

People v. Seigler; A170503; filed 10/31/25, published 12/1/25; C/A 1st, Div. 2
On the day of trial, defense counsel moved for a continuance and filed a motion for mental health diversion (MHD).  The judge denied both motions and the defendant pled.  He now appeals.  The C/A reverses, ruling that “the trial court abused its discretion in denying his request for a continuance because his application for mental health diversion constituted good cause to do so.”  There’s a lengthy discussion of the rules governing continuances which is well worth reading.  The trial judge denied the motions on the basis that they were untimely.  The C/A rules that the defense “was not obligated to seek mental health diversion at any particular point in the pretrial proceedings,” saying that the MHD motion is only required to be made “before jeopardy attache[d] at trial.”  (Braden, 14 C5th 791, 825; see also PC 1001.36.)  The judge found that defense counsel had not been diligent in seeking the MHD motion.  But the C/A says that failing to be “optimally diligent” isn’t dispositive.  The C/A says that “treatment is the much preferred option so that diversion should ‘apply as broadly as possible.’” (Sarmiento, 98 CA5th 882, 898.)  The C/A finds an abuse of discretion in denying the continuance to investigate MHD.  The C/A says that judges shouldn’t just rigidly apply rules on motions to continue, saying, “Rigid rule following is not always consistent with a court’s function to see that justice is done.”  (Elkins, 41 C4th 1337, 1364.)  My favorite part of this excellent case is the C/A’s reliance on a case from 1866, quoted in Jacobs, 156 CA4th 728, 737-738.  I mean, 1866; I was just a kid.

MILITARY DIVERSION REQUIRES ACTUAL EVIDENCE OF A MENTAL HEALTH CONDITION

People v. Holliday; C102760; 12/2/25; C/A 3rd
Military diversion is available for misdemeanors on a showing that the defendant was or currently is a member of the military and “may be suffering from sexual trauma, traumatic brain injury, post‑traumatic stress disorder, substance abuse, or mental health problems as a result of their military service.”  (PC 1001.80(b).)  In Segura (113 CA5th 1242), the C/A ruled that the word “may” in the statute only imposes a burden on the defendant “to show a reasonable possibility that he or she is suffering from a qualifying condition as a result of their military service.”  This C/A agrees with Segura on this point.  But that burden, while low, requires some actual evidence to establish it.  The C/A says that offers of proof by counsel aren’t evidence and thus don’t meet the burden, saying, “factual assertions by counsel are not sufficient to satisfy the evidentiary requirements necessary to support an order for diversion under section 1001.80.”  Given the lack of sufficient evidence that this defendant is suffering from a qualifying condition as a result of his military service, the C/A reverses the trial court’s order granting military diversion.

Cases for the week ending November 26, 2025
Al Menaster's Audio of The Week's Cases, 11-26-2025

JUDGE’S MISCONDUCT REQUIRES A NEW TRIAL
People v. Rockhill; B335084; 11/12/25; C/A 2nd, Div. 7

The judge was presiding over a jury trial.  The defendant made incriminating statements to the courtroom bailiff, who repeated them to the judge, Emily Cole.  The judge disclosed this to the parties, but the DA decided not to introduce the statements.  The jury hung.  At the retrial, the defendant testified.  The judge “sent ex parte text messages to a former colleague of hers at the Los Angeles County District Attorney’s office, asking why the prosecutor in Rockhill’s trial was not calling the bailiff to testify as a rebuttal witness and suggesting someone talk to the prosecutor about that.”  That DA did not consult with the trial DA.  The C/A is not amused, citing cases saying – hold your breath – that judges have a duty to be impartial.  “[T]he trial court must not undertake the role of prosecutor.” (Carlucci, 23 C3d 249, 258.)  The trial judge may not “create the impression it is allying itself with the prosecution.”  (Nieves, 11 C5th 404, 477; see also Santana, 80 CA4th 1194, 1207; Williams, 60 CA5th 191, 203.)  Who knew?  The judge erred, but does the defendant get a new trial?  Yep.  “This exceptional case involves extreme facts that offended Rockhill’s due process right to a criminal trial before an impartial judge.”  Why?  “Judge Cole improperly counseled the prosecution on trial strategy.”  “Judge Cole advocated for the People to call a witness who was undeniably favorable to the prosecution.”  Finally, “Judge Cole’s advocacy could have influenced the trial in favor of the prosecution, considering the timing of her ex parte communications.”  Notably, for this misconduct Judge Cole received a “severe public censure” last year from the Commission on Judicial Performance.  My favorite part of this opinion is the description of what happened in the motion for new trial.  Another judge hearing that motion offered as proof of Judge Cole’s lack of bias a minute order wherein Judge Cole stated that she “was fair and impartial.”  I mean, what more could you ask?

FAILING TO PAY RESTITUTION CAN’T BE RELIED ON TO DENY A PC 1203.4 MOTION TO DISMISS
People v. Murphy; A172224; 11/21/25; C/A 1st, Div. 3

I keep complaining that we have to stop calling a motion under PC 1203.4 an “expungement.”  And then this C/A calls it exactly that.  Wrong.  PC 1203.4 provides for dismissal, not anything that we would view as expunging anything.  Anyway, there’s express language in PC 1203.4(c)(3)(C) and PC 17(f) which says that failure to pay restitution is not a ground to deny a 1203.4 motion.  PC 1203.4(c)(3)(C) says, “an unpaid order of restitution or restitution fine shall not be grounds for denial of the petition for relief.”   PC 17(f) says that when the court exercises its discretion, “an unfulfilled order of restitution or a restitution fine shall not be grounds for denial of a request or application for reduction.”  The C/A reverses the judge’s denial of the 1203.4 motion here, saying, “We conclude the command of sections 1203.4(c)(3)(C) and 17(f) is clear and unambiguous. The provisions prohibit a trial court from relying on a defendant’s nonpayment of restitution or a restitution fine when denying their request for expungement or reduction.”

AN ORDER OF DIVERSION IS NOT APPEALABLE
People v. Hill; 24APCM00173; 10/8/25; Los Angeles Superior Court Appellate Division

The defendant was charged with misdemeanor assault and battery.  The court granted judicial diversion.  (PC 1001.95.)  One condition of the diversion was that the defendant pay restitution to the victim.  The defendant successfully completed all terms of the diversion except for payment of restitution.  The court conducted a hearing and ordered $11,000 in restitution.  The defendant appealed.  The LA Superior Court Appellate Division rules that the order of diversion is not an appealable order, so the restitution order can’t qualify as an order after judgment and thus is also not appealable.  The court drops a footnote listing many aspects of diversion orders that are appealable, just not this one.  Anyway, the court treats this as a petition for writ, which the court denies on grounds that the lower court’s order was within its discretion.  Moreover, the appellate division finds that the restitution order was supported by the evidence and wasn’t an abuse of discretion.

INTENT TO KILL PLUS AIDING IN THE UNDERLYING FELONY QUALIFIES AS FELONY MURDER
People v. Taito; B337324; 10/28/25; C/A 3rd

SB 1437 bars liability for felony murder where the defendant wasn’t the actual killer, didn’t aid in the killing, or “was [not] a major participant in the underlying felony [who] acted with reckless indifference to human life.”  Does this mean that the DA has to prove that an aider assisted in the actual killing, or is merely aiding in the underlying felony enough?  Incredibly, there is a split on this issue, with the 3 previous C/As saying it’s enough to aid in the underlying felony, and 2 saying that the statute requires “aiding, abetting, or assisting in the killing.”  The Cal. Supremes have been granting review in these cases, so we’re left up in the air on this point. This C/A interprets the statute “to mean the non‑killer must aid, abet, or assist in the qualifying felony, not the killing.”  So the score is now 4 to 2, on the side of, it’s enough to aid in the underlying felony.

Cases for the week ending November 21, 2025
Al Menaster's Audio of The Week's Cases, 11-21-2025

INVESTIGATIVE DELAY PROVIDES STRONG JUSTIFICATION FOR PRECHARGING DELAY

People v. McInnis; D082909; 11/13/25; C/A 4th, Div. 1
This is a mammoth, 111‑page opinion on Cal. due process rules applicable to pre‑filing delays.  This is NOT a federal or state speedy trial case, such as Serna (40 C3d 239) and Doggett (505 US 647), which are post-filing cases.  To get a hearing challenging a prefiling delay, you must make an initial showing of actual prejudice, meaning you must show that the delay resulted in some damage to the defendant’s ability to defend the charges at trial.  If you do, then the DA must offer some justification for the delay.  The trial court then weighs the prejudice against the DA’s justification.  If the prejudice outweighs the justification, the case is dismissed.  If you show prejudice but the DA can’t justify the delay, you win.  (See Nelson, 43 C4th 1242.)  In this case, 24 years after the alleged murder, the DA “revisited” the case and did DNA testing.  The results weren’t conclusive but did add circumstantial evidence, resulting in the DA filing.   The defendant claimed that the delay prejudiced his defense.  Two witnesses became unavailable; one died and the other could not recall the events.  One of those witnesses has previously failed to identify the defendant in a lineup and the other identified someone else. The trial judge dismissed, finding that the delay lacked justification because the DA could have performed the DNA testing earlier. The C/A majority reverses, saying that the trial judge erred in factoring in that DNA testing could have been done earlier, claiming that this second‑guesses the DA’s discretion.  The C/A claims that there’s such a thing as “investigative delay,” saying, “investigative delay is not negligence and provides instead a ‘strong’ justification for precharging delay.”  There's a dissent almost 30 pages long by Justice Kelety, saying that the majority is wrong; it is well worth reading.  I think the majority is wrong because the delay before the DA decided to conduct DNA testing should be properly weighed in our favor.

POLICE INTERROGATION CAN START OUT NONCUSTODIAL BUT TURN CUSTODIAL, REQUIRING MIRANDA

People v. NavaAdame; G064663; issued 10/16/25; published 11/17/25; C/A 4th, Div. 3
Miranda (384 US 436) warnings are only required for custodial interrogations.  (Saldana, 19 CA5th 432, 454.)  Saldana lists 13 factors in determining whether a police interview is custodial.  (Saldana, at p. 455.)  The police suspected this defendant of child sexual abuse.  They asked him to come into the police station, which he did.  This factor weighs in favor of a finding that the interrogation was not custodial.  But, “even where a suspect voluntarily goes to a police station for an interview, if once there, the circumstances become such that a reasonable person would not feel free to leave, the interrogation can become custodial.”  (Saldana, at pp. 455-456.)  An hour and a half interview ensued, the entirety of which the C/A says was not custodial.  Then the police stopped having a conversation with the defendant and “the sudden pointed accusations combined with a barrage of interrogation techniques in a series of confrontational monologues would lead a reasonable person to believe they could not simply end the interview and walk away notwithstanding anything to the contrary said by the interrogators.”  The C/A discusses several standard police interrogation techniques that led the C/A to conclude that no reasonable person would feel free to leave.  These included telling the defendant that the police knew that the defendant’s denials were lies and that the issue was no longer whether he committed the crimes but why.  The officer minimized the moral seriousness of the crimes and suggested that the defendant would feel better if he confessed and offered a less morally culpable explanation.  The C/A concludes that “no reasonable person faced with Detective Long’s sudden lengthy, confrontational monologues at the beginning of the third part of the interrogation, which were rife with accusation and employed a barrage of interrogation techniques, would have felt they could get up and walk away.”  The C/A finds the lack of Miranda warnings was prejudicial and reverses, saying, “We conclude the record before us presents a situation in which an interrogation was noncustodial at the outset but eventually became custodial before NavaAdame admitted to engaging in sexual acts with one of the victims.”

DUI IS NOT ALWAYS A LESSER-INCLUDED OFFENSE WITHIN MANSLAUGHTER

People v. Demacedo; A170580; 11/12/25; C/A 1st, Div. 3
“When a defendant is found guilty of both a greater and a necessarily lesser included offense arising out of the same act or course of conduct,... the conviction of the lesser offense must be reversed.”  (Sanders, 55 C4th 731, 736.)  The defendant here was convicted of three counts of PC 191.5(a), gross vehicular manslaughter while intoxicated, and one count of DUI causing injury, VC 23153(a) and (b).  Cases have held that DUI causing injury is a lesser-included offense within gross vehicular manslaughter while intoxicated.  (See Binkerd, 155 CA4th 1143; Miranda, 21 CA4th 1464.)  But the convictions here were for four different victims; the 23153 conviction was for a different victim than the three manslaughter convictions.  The defendant appeals, arguing that 23153 is a lesser-included offense within 191.5 even when the victim is different, so a conviction for 23153 is barred even if the victim wasn’t killed.  Nope: “Vehicle Code section 23153 is not a lesser included offense of Penal Code section 191.5, subdivision (a) when the offenses involve different victims.”  The C/A follows Machuca (49 CA5th 393), which also says that 23153 isn’t a lesser of manslaughter in this context.  Note that there’s a dissent in Machuca, saying that there was only a single act of driving involved, which should bar multiple convictions.  That would make 23153 a lesser of 191.5 in this context.

 Cases for the week ending November 14, 2025
 Al Menaster's Audio of The Week's Cases, 11-14-2025

STATISTICAL DATA AND FACTS OF THE ARREST SUFFICE FOR A HEARING ON AN RJA VIOLATION
Hernandez v. Superior Court; H052774; 11/7/25; C/A 6th

Effective 1/1/21, the Racial Justice Act (RJA) bars convictions and sentences tainted by racial bias.  (PC 745(a).)  The defense made an RJA motion but the judge denied it without an evidentiary hearing.  The defense presented a 1999 study concluding that Latinos were detained for traffic stops in San Jose substantially more often than any other racial group.  A defense expert opined that the San Jose police engage in pretext stops of minorities, and that in this very case the police abandoned the basis for the stop within 7 seconds.  The C/A confirms that statistical data is admissible to establish a prima facie showing of an RJA violation (See Bonds, 99 CA5th 821, 830‑831) and that the showing here was enough to require an evidentiary hearing.  Next, the defense claims that a violation of the RJA is established by the officer’s justification for patting down the driver and the defendant, the passenger, based on the stop taking place late at night and both the driver and the defendant wearing baggy clothing that concealed their waistbands. The defense offered an article from the NPR website saying that police perceive clothing and ethnicity as a strong indicator of criminality.  The defense also provided the defense expert’s declaration that only 10% of white drivers were searched for contraband, while 20% of Latino drivers were searched.  The C/A rules that this was enough to compel an evidentiary hearing.  Finally, the arresting officer made statements that showed that the officer assumed on the basis of race that defendant was a felon.  Each of these factors, whether separately or in conjunction, established that the defense made a sufficient prima facie showing to require an evidentiary hearing.

PREJUDICE REQUIRED FOR REVERSAL FOR BATSON/WHEELER ERROR
People v. Tokhunts; B330660; 11/7/25; C/A 2nd, Div. 3

A decade ago, a C/A considered a case where the judge granted a Batson (476 US 79)/Wheeler (22 C3d 258) motion against the defense for kicking off Caucasian jurors.  (Singh, 234 CA4th 1319.)  The Singh C/A didn’t resolve the issue of whether Caucasians are a cognizable group so that their exclusion triggers a group bias claim for a Batson/Wheeler challenge; instead, finding no prejudice.  The Singh C/A ruled that a defendant can obtain reversal for Batson/Wheeler error for reseating an excused juror only if the defense can show prejudice.  We’d have to show that “an objectionable juror in fact acted in any manner during deliberations that is inconsistent with an unbiased fact finder.”  Of course, if we could show that, we’d be entitled to reversal for jury misconduct independent of the Batson/Wheeler error.  This C/A restates Singh and relies on it to affirm.  Hey, what about CCP 237.1?  The C/A correctly describes 237.1 as follows: “If the reviewing court concludes the trial court erred in denying an objection, the error ‘shall be deemed prejudicial, the judgment shall be reversed, and the case remanded for a new trial.’”  How much clearer could this be?  This C/A quotes 237.1 but never discusses it, limiting their discussion to Batson/Wheeler.  They say, “we need not decide whether the court complied with section 231.7.”  Why not?  Because even if the judge erred by violating 231.7, “the error was harmless and does not require reversal.”  Huh?  What about 231.7’s provision saying that a violation of 231.7 “shall be deemed prejudicial”?  Outrage of the week.

PAROLE ELIGIBILITY PRECLUDES FINDING A SENTENCE IS FUNCTIONALLY EQUIVALENT TO LWOP
People v. Lara; B341682; 10/22/25; C/A 2nd, Div. 6

This week’s Justice Yegan special.  PC 1170(d)(1) allows juveniles sentenced to life without parole (LWOP) to petition for resentencing.  In Heard (83 CA5th 608), the court held that denying juvenile offenders who have been sentenced to the functional equivalent of LWOP (FLWOP) the same opportunity to petition for resentencing violates equal protection.  (See also Sorto, 104 CA5th 435; and Bagsby, 106 CA5th 1040, agreeing with Heard.)  At the age of 17, this defendant was sentenced to 79 years to life.  There’s a dispute about how long a sentence must be to qualify as FLWOP, but that’s not the issue here.  Instead, Yegan says that eligibility for a youth offender parole hearing (YOPH) after 25 years, pursuant to PC 3051, moots the claim that the client is serving FLWOP, regardless of the length of the original sentence.  Since the Cal. Supremes have granted review on this issue (in Ortega, formerly at 111 CA5th 1252), they will surely do so here as well.

AMPUTATION OF A LEG QUALIFIES AS PARALYSIS FOR A GBI ENHANCEMENT
People v. Feise; C101541; filed 9/25/25; published 10/21/25; C/A 3rd

PC 12022.7(a) adds prison time when a defendant personally inflicts great bodily injury (GBI) on a victim during commission of a crime.  PC 12022.7(b) adds much more time for personally inflicting GBI causing the victim to be paralyzed.  This provision applies if the defendant’s conduct causes the victim to become comatose due to brain injury or suffers paralysis.  Paralysis is defined as “a major or complete loss of motor function resulting from injury to the nervous system or to a muscular mechanism.”  The C/A says that expert testimony is not required.  The victim’s right leg has severely damaged in the accident caused by the defendant driving while under the influence of alcohol.  The swelling from the injuries made the victim susceptible to infection, and an infection led to amputation of the leg.  The C/A says that this qualifies as “a major loss of motor function.”  The C/A affirms application of the enhancement.

 Cases for the week ending November 7, 2025

 Al Menaster's Audio of The Week's Cases, 11-07-2025

COURT OF APPEAL ADDS A NEW REQUIREMENT FOR MENTAL HEALTH DIVERSION

People v. Superior Court (Taylor); B346062; filed 09/30/25; published 10/30/25; C/A 2nd, Div. 1

A C/A recently said that the judge can’t deny mental health diversion (MHD) based on some freestanding concerns about the risk of dangerousness.  (Gomez, 113 CA5th 671.)  Gomez said that the MHD statute specifically defines dangerous as the likelihood that the defendant will commit a super strike.  Judges are thus barred from using their residual discretion as a backdoor to sneak in a freestanding finding of dangerousness by again considering the facts and circumstances of the robbery, including the injuries sustained by the victim. “The facts and circumstances of the robbery were, however, considered under the unreasonable risk of dangerousness criteria of the statute. The trial court cannot invoke its residual discretion to create a lower standard for finding that the facts and circumstances of the robbery indicate diversion would not protect public safety.”  This C/A, showing the integrity that we’ve come to expect from the appellate courts, handles the Gomez problem by, you guessed it, never mentioning Gomez.  The C/A repeatedly says that they have concerns about whether the defendant will abide by the MHD plan, but that’s a far cry from being likely to commit a super strike.  The C/A also adds a requirement for granting MHD, saying that the dangerousness provision “implicitly obligates the court to determine whether the defendant will likely follow through on this agreement,” referring to the defendant’s agreement to abide by the MHD plan.  Of course they cite nothing for this.  Judges don’t get to add requirements to diversion statutes.  Finally, the C/A orders the trial judge to deny MHD.  Nope, they can’t do that either, they have to remand it for a new hearing based on their opinion.  Fortunately, the estimable Mike Schensul, LA APD appellate, is counsel on this travesty, and will pursue it.  Bad, dumb case, outrage of the week.

RACISM IN GANG ENHANCEMENTS IS NOT PERFECTLY FINE

In re Huerta; formerly at 113 CA5th 162; S.Ct. order at S292760; 2025 WL 3032304; 2025 Cal. LEXIS7138
          
This was previously an outrage of the week in July.  The claim here is that there was racism in the charging and sentencing of the defendant for gang enhancements, citing statistical evidence of disproportionate gang allegations against Hispanics in the county.  Incredibly, the C/A rejected the defense’s Racial Justice Act (RJA) claim because the defense failed to establish racism in sentencing enhancements, saying that “the charging and sentencing of gang enhancements do not fall within the scope of the” RJA, only substantive crimes and longer sentences qualify.  The Cal. Supremes depublish the C/A opinion, grant review, and transfer the case back to the C/A “after affording the parties an opportunity to brief the issue of whether a gang enhancement constitutes an ‘offense’ within the meaning of” PC 745, the RJA statute.

A JURY INSTRUCTION ON A LESSER OFFENSE IS REQUIRED WHERE THERE IS SUBSTANTIAL EVIDENCE

People v. Mirabal; H050860; 10/28/25; C/A 6th

The defendant appeals his conviction for rape of an intoxicated person.  He argues that the trial judge had a sua sponte duty to instruct on the lesser offense of battery.  The C/A finds that battery is an inherently lesser-included offense within rape. “A trial court must instruct on a lesser included offense only if there is substantial evidence to support a jury’s determination that the defendant was in fact only guilty of the lesser offense.”  (Miranda, 62 CA5th 162, 167.)  To convict a defendant of rape of an intoxicated person, the jury has to find that the intoxication prevented the victim from giving legal consent and that the defendant knew that or reasonably should have known it.  The defendant testified that he didn’t know that the victim was too drunk to consent.  The C/A finds substantial evidence of the lesser and reverses.

DEFENSE COUNSEL WAS INEFFECTIVE FOR MAKING ONLY A CURSORY ARGUMENT

People v. Guevara; A170530; 10/31/25; C/A 1st, Div. 3

The defendant was sentenced as a 3rd striker to 32 years to life.  SB 483 now requires the judge to vacate enhancements for prior prison commitments under PC 667.5(b), if the defendant is currently serving time on a judgment that included punishment for the 1‑year priors.  (PC 1172.75(c), formerly numbered PC 1171.1.)  The judge recalled this sentence and struck 4 1-year priors.  The judge is then required to conduct a full resentencing, meaning that the judge must “apply any other changes in law that reduce sentences or provide for judicial discretion.”  (PC 1172.75 (d)(2).)  The judge here asked defense counsel to submit a written sentencing brief, but counsel never did so.  Instead, counsel made a brief oral argument, quoted in full in the opinion since it consists of only one paragraph.  Counsel briefly mentioned the defendant’s good conduct in prison and that the defendant was intellectually disabled.  The C/A reverses, finding ineffective assistance of counsel (IAC) by the defense attorney, stressing that the lawyer had a year and a half on the case, filed nothing in writing, and never asked for a specific sentence reduction.  There’s a lengthy dissent, arguing that there’s just no showing of prejudice.  “As it stands, there is nothing in the record on appeal indicating that defense counsel actually knew or should have known of additional relevant information and accompanying arguments that could have swayed the trial court to grant relief.”  The dissent also argues that had the judge dismissed a strike prior, it would have been an abuse of discretion.

Cases for the week ending October 31, 2025

Al Menaster's Audio of The Week's Cases, 10-24-2025

CAUSING AN ACCIDENT PROXIMATELY RESULTING IN DEATH ESTABLISHES IMPLIED MALICE

Nevarez v. Superior Court; D085897; 10/27/25; C/A 4th, Div. 1
Last year this C/A issued an opinion on implied malice murder in a Watson (30 C3d 290) context.  (Chagolla, 102 CA5th 499.)  In Chagolla the defendant, driving under the influence of oxycodone, crashed on the freeway, blocking traffic.  She then passed out.  30 minutes later, a driver of a tractor-trailer crashed into the traffic stopped by the initial crash, hitting another vehicle, which hit another vehicle, killing that driver.  The C/A dismissed the murder charge, saying that to establish implied malice, the DA had to show that the defendant intentionally remained in her car and knew that this action would endanger the life of others.  But the evidence was that the defendant was so impaired she had no idea what was going on.  This C/A “clarifies” Chagolla.  You can bet that when a C/A “clarifies” a case favorable to the defense, it’s always bad for us.  In this case, the defendant rear ended a car while driving drunk at 100 mph.  The defendant’s car came to a rest against a concrete barrier wall, blocking the HOV traffic lane.  The victim, riding a motorcycle, hit the defendant’s stopped car and was killed.  This seems similar to Chagolla, but the C/A says that it’s not.  The C/A says the crucial differences are “the length of time between the defendant’s initial actions and crash and the subsequent collision, and because of the physical distance between the two crashes.”  So what’s the rule?  It’s some nebulous distance and time between the defendant's action and the accident causing death?

JURY INSTRUCTIONS ON LESSERS IS NOT REQUIRED ABSENT SUBSTANTIAL EVIDENCE OF THE LESSER

People v. Sevilla; A169669; 10/27/25; C/A 1st, Div. 4
The defendant was convicted of voluntary manslaughter.  On appeal he argues that the judge erred in failing to give the jury an instruction on involuntary manslaughter.  The C/A summarizes the differences between murder and voluntary manslaughter, as opposed to involuntary manslaughter.  “In sum, defendants who either intend to kill or knowingly act with conscious disregard for their action’s natural and probable endangerment to human life have acted with malice and are guilty of either murder or voluntary manslaughter. By contrast, a defendant who commits a predicate act endangering human life without realizing the risk involved, when a reasonable person in the same position would have been aware of that risk, has acted with criminal negligence and is guilty of involuntary manslaughter.”  The judge does not have to give jury instructions on all lesser offenses unless,  “there is substantial evidence from which a jury could reasonably conclude that the defendant committed the lesser, uncharged offense but not the greater, charged offense.”  (Thomas, 53 C4th 771, 813.)  The C/A says that the evidence in this case was not substantial enough to require the jury instruction on involuntary manslaughter.

BAD CASE ON STATISTICAL EVIDENCE ESTABLISHING A VIOLATION OF THE RJA IS DEPUBLISHED

People v. Jimenez; formerly at 112 CA5th 779; Supreme Court order at: 2025 WL 2983100; 2025 Cal. LEXIS 6405
I reported the C/A opinion in this case back in July; the Supremes acted on it last week.  If we establish a prima facie violation of the Racial Justice Act (RJA), we’re entitled a full evidentiary hearing.  There are now several cases on our right to discovery to establish that prima facie case.  McDaniel (111 CA5th 228) says that statistical data of an RJA violation is by itself enough to compel discovery.  Can statistical evidence alone suffice to establish a prima facie case that the RJA was violated?  There’s a concurring opinion in Mosby (99 CA5th 106) saying yes.  The majority opinion in Mosby states that such evidence, plus factual examples of racial disparities, is enough to establish a prima facie case.  This C/A said that statistical data alone is not enough to establish a prima facie case, concluding that the data here failed to demonstrate a “substantial likelihood” of a violation of the RJA.  The Cal. Supremes granted review in this case and transferred the case back to the C/A, to “reconsider the cause in light of the impact, if any, of Assembly Bill No. 1071.”  Notably, the Supremes also depublished the opinion.  It’s not clear what the reference by the court to AB 1071means.  Perhaps they mean AB 1071(c), which says, “The Legislature reasserts the low threshold required to establish a prima facie showing.”  Maybe “low” means that statistical data alone is enough to establish a prima facie case.

WRONGLY GRANTING A PEREMPTORY CHALLENGE IS NOT PREJUDICIAL ERROR

People v. Guzman; G065309; 10/22/25; C/A 4th, Div. 3
CCP 231.7 enacted new procedures governing the use of peremptory challenges, greatly expanding Batson (476 US 79) and Wheeler (22 C3d 258) challenges to exclusion of jurors.  231.7 says that if an appellate court finds that denial of an objection to a peremptory challenge was wrong, it’s prejudicial error.  “Should the appellate court determine that the objection was erroneously denied, that error shall be deemed prejudicial, the judgment shall be reversed, and the case remanded for a new trial.”  (CCP 231.7(j).)  That means that the C/A has to reverse, right?  Oh no, it can’t mean that.  Here, the DA’s objection to the defense peremptory challenge was wrongly granted as opposed to wrongly denied.  This C/A concludes, “that the deemed prejudicial standard does not apply when the objection to the peremptory challenge was erroneously granted.”  Oh and that might be kinda tough (aka impossible), but too bad.  Give me a break, this is nonsense.  And thus, the outrage of the week.

Cases for the week ending October 24, 2025

 Al Menaster's Audio of The Week's Cases, 10-24-2025

MENTAL HEALTH DIVERSION CAN BE WITHDRAWN IF NO ADEQUATE PROGRAM IS AVAILABLE
People v. Riddle; C101539; 10/21/25; C/A 3rd

When can a judge terminate a defendant from mental health diversion (MHD)?  “In cases where diversion is granted and the defendant is subsequently charged with specified crimes, engages in criminal conduct rendering him or her unsuitable for diversion, or is performing unsatisfactorily in the assigned program, a trial court must hold a hearing to determine if criminal proceedings should be reinstated.”  (Citing PC 1001.36(g).)  The judge here agreed to place the defendant in MHD on the condition that he complete a residential drug treatment program first.  The defendant couldn’t get into such a program and the judge denied MHD.  On appeal the defendant argues that he didn’t violate MHD.  The C/A characterizes what happened as the judge withdrawing MHD because the defendant couldn’t get residential treatment, which had been a condition precedent to granting MHD.  The C/A affirms denial of MHD. 

PERMISSIBLE TO EXCUSE JURORS ON THE BASIS OF YOUTHFULNESS
People v. Hernandez; B333071; 10/15/25; C/A 2nd, Div. 6

The DA justified his peremptory challenges against 4 young Hispanic male jurors by claiming that the challenges were due to the jurors’ youth.  Batson (476 US 79) and Wheeler (22 C3d 258) applies when the DA kicks off jurors in “cognizable classes.”  Batson/Wheeler cases say that youth is not a cognizable class.  “A potential juror’s youth and apparent immaturity are race‑neutral reasons that can support a peremptory challenge.”  (Lomax, 49 Cal.4th 530, 575.)  This C/A applies that law here, noting that youth is not on the list of CCP 231.7 prohibited bases for excusing jurors.  The C/A relies on the Batson/Wheeler cases addressing youth and so declines to add youth as a prohibited ground for exclusion of a juror under 231.7.  What about the young men being Hispanic?  The defense didn’t object on that ground and thus waived it.
 

FAILURE TO OBJECT AT TRIAL FORFEITS CLAIMS OF RACIAL JUSTICE ACT VIOLATIONS
People v. Wagstaff; filed 6/12/25; 111 CA5th 1207; rev. denied 10/15/25; dissent from denial

I reported this case in June.  The Cal. Supremes have now denied review, with a dissent by Justices Evans and Liu.  The Racial Justice Act (RJA) is violated when someone has “used racially discriminatory language about the defendant’s race, ethnicity, or national origin.”  (PC 745(a)(2).)  “[R]acially discriminatory language” includes “language that, to an objective observer, explicitly or implicitly appeals to racial bias, including, but not limited to, racially charged or racially coded language, [or] language that compares the defendant to an animal.” (PC 745(h)(4).)  There’s a lot of such language here, but the C/A focused on the judge telling the defendant during sentencing that “it’s easy to bust into people’s homes and take property because they’re not there or because you’re a strong young buck and you can do these things at‑will.”  The AG conceded that the use of “strong young buck” violated the RJA, but the C/A refused to accept that concession.  The C/A ruled that the failure of defense counsel to object to any of the racially charged language used by the judge forfeits any RJA claim.  Appellate counsel argued that trial counsel’s failure to object was ineffective assistance of counsel (IAC).  The C/A rejected this position, saying that trial counsel might have had rational tactical reasons not to object. 
In dissent, Justice Evans indicates that she doesn’t think that the importance of this issue justifies a finding of forfeiture.  She also says, “In my view, the trial court’s characterization of Wagstaff as a ‘strong young buck’ in this context is sufficient on the face of the record to find racial discrimination warranting remand for resentencing before a different trial judge as supported by the Attorney General.”  Evans does an excellent job of explaining why the offensive term was in fact racist.

FACTORS FOR STRIKING STRIKE PRIORS: CURRENT CRIMES, PRIORS, DEFENDANT’S BACKGROUND
People v. Dain; A168286; 10/15/25; C/A 1st, Div. 2

Effective 1/1/24, AB 600 amended PC 1172.1 to allow a trial court, on its own motion, to recall a sentence and resentence a defendant when “applicable sentencing laws at the time of the original sentencing are subsequently changed by new statutory authority or case law.” (PC 1172.1(a)(1).)  Thus, recall is possible at any time so long as there have been changes in the sentencing laws.  In Burke (89 CA5th 237), the C/A said that AB 600’s amendment to PC 1385 requiring dismissal of “enhancements” doesn’t apply to strike priors, claiming that it is “well established that the Three Strikes law is not an enhancement; it is an alternative sentencing scheme for the current offense.”  This C/A agrees with Burke.  The C/A reviews the law governing dismissal of strike priors.  In Romero (13 C4th 497), the Cal. Supremes say that trial courts retain the power under PC 1385 to dismiss strike priors.  Williams (17 C4th 148) articulates the rules governing Romero motions.  The court has to consider the current crimes, the priors, and the defendant’s background, and decide whether the defendant should be sentenced outside the 3-Strikes scheme.  The C/A runs through the defendant’s various crimes and reverses the order striking the strike prior.  But they don’t try to reinstate the prior, they remand for the trial judge to follow their directions.

Cases for the week ending October 17, 2025

 Al Menaster's Audio of The Week's Cases, 10-17-2025

SB 483 PERMITS REDUCTION OF A THREE‑STRIKES SENTENCE
People v. Superior Court (Guevara); S283305; 10/9/25; Cal. Supremes

SB 483, effective 1/1/22, made the elimination of 1‑year prison priors fully retroactive.  (PC 1171.1, now renumbered 1172.75.)  SB 483 provideed that when a court determines that an individual is serving a judgment that includes one or more of the now‑invalid priors, that sentence must be recalled and the invalid prior(s) stricken.  At the resentencing, the court must apply all current sentencing rules.  So how does this work in the context of a 3rd striker who is resentenced under SB 483?  Prop. 36 changed the law of sentencing on 3‑Strikes cases, barring life terms for most sentences imposed after the law’s effective date of 11/7/12.  With exceptions not relevant here, Prop. 36 did two things: 1) barred future 3rd strike sentences unless the new conviction is also a strike; and 2) required resentencing of people serving a 3rd strike sentence when the conviction offense was a non‑strike, unless the court finds that the person is a danger to public safety.  The Cal. Supremes refer to this latter issue as the “public safety override.”  The Cal. Supremes rule that SB 483 does not impermissibly amend the Cal. Constitution, in that 483 can be integrated into the 3-Strikes law.  If resentencing under 483 would “pose an unreasonable risk of danger to public safety,” the judge should reimpose the 3rd-Strike sentence.  If the judge finds no such risk, the defendant must be resentenced under the provisions of Prop. 36.

 
PEREMPTORY CHALLENGES PERMISSIBLE IF NO REASONABLE PERSON WOULD VIEW RACE AS A FACTOR
People v. Garcia; A165535; filed 9/19/25; published 10/9/25; C/A 1st, Div. 4

The DA kicked a Black juror off the jury panel.  The defense challenges that use of a peremptory challenge under CCP 231.7, which bars use of a peremptory challenge based on race (and many other grounds).  If you object, the DA has to state his or her reasons for the challenge.  If the court finds “a substantial likelihood that an objectively reasonable person would view race” or another prohibited characteristic “as a factor in the use of the peremptory challenge, then the objection shall be sustained.”  (CCP 231.7(d).)  The defense here argues that the judge erred by placing the burden on the defense instead of the prosecution to show that “an objectively reasonable person would view race as a factor in the challenge.”  The C/A rules that the DA only has this burden when the DA relied on a presumptively invalid reason for the challenge.  There are 13 presumptively invalid reasons listed in CCP 231.7(e).  The DA’s articulated reasons were the juror’s youth, his lack of life experience, and his views about allegations of sexual assault against a famous athlete.  These reasons aren’t on the CCP 231.7(e) list.  The C/A denies relief for several reasons.  The juror was Black but the defendant is Hispanic, “and there is no suggestion that race bore on the facts of the case.”  Moreover, there’s no indication that sexual assault allegations against famous athletes “are disproportionately associated with race.”  Finally, there’s no evidence that this DA’s office has a history of racist peremptory challenges.  In the end, the C/A affirms.

CONTINUOUS SEXUAL ABUSE CONVICTIONS DO NOT REQUIRE UNANIMITY
People v. Hill; A168537; 10/9/25; C/A 1st, Div. 3

Continuous sexual abuse (PC 288.5) criminalizes 3 or more acts of substantial sexual conduct or lewd conduct with children under 14 over a period of at least 3 months.  CALCRIM 3501 describes the requirement of unanimity, usually applicable to criminal charges.  You can immediately see the unanimity issue that this statute raises.  We’ve never won that issue on this crime, because courts have claimed that this is a crime involving a continuous course of conduct and that’s an exception to the unanimity requirement.  (See Cissna, 182 CA4th 1105; Gear, 19 CA4th 86.)  Of course, other crimes which actually involve a continuous course of conduct are those such as failure to pay child support; that crime occurs throughout the charged period of time.  In Ramos (590 US 83) the US Supremes applied the federal unanimity rules to the states as a matter of constitutional law, specifically the 6th and 14th Amendments.  The defense argues that Ramos means that unanimity is now required for 288.5 prosecutions.  This C/A rejects the unanimity claim, saying that Ramos wasn’t about 288.5 crimes.  That’s true but kind of nonresponsive.  We should continue to demand unanimity jury instructions; perhaps federal courts will agree with us.

SB 483 ONLY APPLIES IF THE DEFENDANT IS SERVING TIME ON THE PRISON PRIOR ENHANCEMENTS
People v. McKean; E083029; 10/9/25; C/A 4th, Div. 2

PC 667.5(b) used to provide for one-year enhancements to prison sentences for each prior prison term served by a defendant.  SB 483, effective 1/1/22, requires the judge to vacate enhancements for prior prison commitments under PC 667.5(b), if the defendant is “currently” serving time on a judgment that included punishment for the one-year priors.  (PC 1172.75(c), formerly numbered PC 1171.1.)  This defendant had completed his time for his original sentence and was in prison for an in-custody offense being served consecutively to the initial judgment.  The C/A rules that this defendant was not currently serving time on the enhancement, affirms, and rejects an equal protection challenge as well.

Cases for the week ending October 10, 2025

 Al Menaster's Audio of The Week's Cases, 10-10-2025

PRIOR TESTIMONY IN A CO‑DEFENDANT’S TRIAL IS ADMISSIBLE IN AN SB 1437 EVIDENTIARY HEARING
People v. Ramos; G063231; filed 6/23/25; 112 CA5th 174; rev. denied 10/1/25; Cal. Supremes

The C/A opinion in this case was filed in June; the Cal. Supremes denied review, with a “concurring statement” from Justice Liu.  SB 1437 bars liability for felony murder where the defendant wasn’t the actual killer, didn’t aid in the killing, or “was [not] a major participant in the underlying felony [who] acted with reckless indifference to human life.”  When an Order to Show Cause (OSC) issues, there’s a hearing where the DA has to prove beyond a reasonable doubt that the inmate is ineligible for relief, otherwise the defendant prevails.  (PC 1172.6(d)(3).)  What evidence is admissible at a d3 hearing?  Here’s the statute: “The admission of evidence in the hearing shall be governed by the Evidence Code, except that the court may consider evidence previously admitted at any prior hearing or trial that is admissible under current law, including witness testimony.” (PC 1172.6 (d)(3).)  In this case, the transcript of testimony at the co‑defendant’s trial was admitted and relied upon to deny relief. The C/A upheld admission of this testimony: “we hold that a trial court may properly admit transcripts from a codefendant’s trial at a petitioner’s evidentiary hearing.”  Back in June I made this the outrage of the week.

So the Cal. Supremes deny review.  Justice Liu issues a 5-page concurrence, expressing concerns about the C/A’s rule.  He stresses that SB 1437 hearings have to comply with due process.  “Those due process rights may well include a right to cross‑examine witnesses whose absence is not justified by good cause, where the evidence is critical to the prosecution’s ability to carry its burden of ‘prov[ing], beyond a reasonable doubt, that the petitioner is guilty of murder or attempted murder’ under current law.”  But the objections made by the defense in this case were on statutory and confrontation grounds, not due process, so Liu doesn’t reach the due process issue.  When this comes up, object on due process grounds as well.

PHYSICAL MOVEMENT DOES NOT ALWAYS ESTABLISH FORCE FOR RAPE
People v. Melgoza; H050387; 10/7/25; C/A 6th

Forcible rape and forcible oral copulation require, well, force.  Force is defined in CALCRIM 1000 and 1015.  The rule is that the act is “accomplished by force if a person uses enough physical force to overcome the victim’s will.”  (See also Griffin, 33 C4th 1015, 1023-1024.)  The judge here modified the jury instruction to say,  “Force also includes the physical movement and positioning of the female’s body to accomplish the act.”  The C/A reverses, finding prejudicial error, saying, “The modification is legally incorrect because it suggests that physical movement will always satisfy the force element for the charged offenses.”  Sometimes it does, but sometimes it doesn’t.  Second issue: the DA was permitted to present  two pieces of EC 1101 evidence.  The victim testified that nine years previously the defendant grabbed the victim’s hand and placed it on his penis over his clothes.  Several weeks prior to the charged crimes, the defendant was driving in his truck with the victim, stopped his truck and cuddled with the victim.  The C/A finds this admission error, because the defendant denied the charged crimes: “Defendant categorically denied engaging in the charged acts. He did not offer an innocent reason for any actions, which could then be disproven by evidence of uncharged acts to show intent, motive, or absence of motive.”  However, the C/A upholds admission of these uncharged acts under EC 1108.

COURT OF APPEAL DISAPPROVES ITS OWN PREVIOUS OPINION RE: PEREMPTORY CHALLENGE
People v. Garcia; B330884; 10/6/25; C/A 2nd, Div. 6

What a mess.  CCP 231.7 says that certain reasons for removing a juror are presumptively invalid unless the reasons articulated “bear on the prospective juror’s ability to be fair and impartial in the case.” (See CCP 231.7(e)‑(f).)  Certain demeanor‑based justifications are also presumptively invalid unless the demeanor “matters to the case to be tried.” (See CCP 231.7(g)(2).)  In Uriostegui (101 CA5th 271), the DA justified a peremptory challenge against a Hispanic juror for “lack of life experience.”  That’s a facially neutral reason, but lack of life experience was based on the juror’s lack of substantial employment experience, and that’s presumptively invalid.  The majority reversed, noting the restriction in 231.7 that review of the trial judge’s ruling is limited to the reasons stated by the judge.  Justice Gilbert dissented, saying that since the trial judge found that the peremptory challenge was not based on the juror’s socioeconomic status, the judge “necessarily concluded the prosecutor was not using the facially neutral reason of ‘lack of life experience’ to conceal a presumptively invalid reason.”  Now Gilbert picks up Justice Yegan to make a new majority and disapproves the majority opinion in Uriostegui, relying on his own dissent.  Where are we on this?  Insane city.

ANOTHER CALIFORNIA COURT OF APPEAL SANCTIONS A LAWYER USING A.I.
People v. Alvarez; D084581; 10/2/25; C/A 4th, Div. 1

Are we going to have a published case sanctioning a lawyer for using A.I. every week now?  Defense counsel in a criminal appeal cited a case that doesn’t exist, and two cases that do exist but don’t address the issues counsel claimed.  Of course, these were all generated by A.I.  The C/A imposes a $1500 fine and refers counsel to the State Bar.  The C/A issues an opinion excoriating counsel.  Please, please, be careful.

Cases for the week ending October 3, 2025

 Al Menaster's Audio of The Week's Cases, 10-3-2025

ADMISSION OF CHILD SEXUAL ABUSE ACCOMMODATION SYNDROME EVIDENCE PERMISSIBLE
People v. Page; D084545; 9/30/25; C/A 4th, Div. 1

Child sexual abuse accommodation syndrome (CSAAS) is controversial junk science used in various ways to obtain convictions.  The caselaw is quite clear that the jury can’t be told that CSAAS is admissible to prove that a molestation occurred.  “It is beyond dispute that CSAAS testimony is inadmissible to prove that a molestation actually occurred.”  (Patino, 26 CA4th 1737, 1744.)  Of course, jurors think the exact opposite and the appellate courts permit all sorts of shams to uphold the use of CSAAS.  For example, in Patino the C/A affirmed by claiming that the DA there only used CSAAS to have an expert say that the kid’s delay in reporting didn’t prove that the kid wasn’t molested.  The jury here was instructed on CALCRIM 1193, modified to say that CSAAS was “offered only to explain certain behavior of an alleged victim of child sexual abuse,” and could be considered “only in deciding whether or not [Daughter’s] conduct was consistent with the conduct of someone who has been molested, and in evaluating the believability of the alleged victim.”  Of course, the C/A upholds this.  Right, it’s not offered to prove that the claimed molestation actually happened.

Next, the defense objected to the modification of CALCRIM 1193, which was amended in 2022.  The previous version said that the jury could consider CSAAS evidence “only in deciding whether or not [the victim’s] conduct was not inconsistent with the conduct of someone who has been abused.”  The current version replaced “not inconsistent” to “consistent with.”  The majority says that this was just fine and not a change.  There’s a perceptive concurrence by Justice Kelety, explaining “that reporting anomalies ‘are consistent with’ abuse could be understood by a jury to mean that reporting anomalies indicate that the abuse in fact occurred.”  Kelety says this was harmless here.  Fight for the previous version.

Third, more baseless statistics. In 2019, two cases found error from the admission of expert testimony that 94% of children who claim to have been molested were telling the truth.  (Wilson, 33 CA5th 559; Julian, 34 CA5th 878.)  Here, the DA’s expert testified that in 90% of cases of child sexual abuse the child knows the abuser.  The C/A upholds this, saying that this “is not the type of statistical evidence that courts have held inadmissible.”  Why not?  This is just to “educate the jury to counter a specific myth or misconception suggested by the evidence.”  This is out-and-out nonsense, a sham to permit the DA to do precisely what the DA isn’t supposed to be able to do: tell the jury that CSAAS and statistics prove guilt.  Outrage of the week.

SINCE PROVOCATIVE ACT MURDER REQUIRED MALICE, NO SB 1437 RELIEF IS AVAILABLE
People v. Venancio; B338191; 9/19/25; C/A 2nd, Div. 3

SB 1437 (codified in PC 1170.95, now renumbered 1172.6) allows a defendant to challenge a prior murder conviction where the defendant wasn’t the actual killer, didn’t aid in the killing, or “was [not] a major participant in the underlying felony and acted with reckless indifference to human life.”  A group of men committed a home-invasion robbery.  A neighbor saw this, approached, and pulled out a gun.  One of the robbers fired his gun at the neighbor, and a gun battle ensued.  One of the robbers was killed.  The defendant pled guilty to a provocative act murder.  The judge issued an order to show cause (OSC) and conducted an evidentiary hearing on the defendant’s 1437 petition.  The C/A affirms the trial court’s denial of relief, ruling that the OSC should never have been issued in the first place.  The C/A notes that Concha (47 C4th 653) had been issued 5 months before the defendant pled guilty.  In Concha, the Cal. Supremes had ruled that a defendant “must personally harbor malice to be guilty of murder under a provocative act theory.”  Since the defendant pled guilty, the C/A says that the defendant was convicted “under a theory of murder that required him personally to harbor malice. Because that theory of murder remains valid,” the defendant is not entitled to relief.  Interestingly, the identity of the person actually firing the bullets that killed the robber is unclear.  The decedent might have been killed by friendly fire.  But the C/A says that “it was enough for the People to prove it was foreseeable that Venancio’s provocative conduct would cause a gun battle with an armed neighbor at which someone would be killed; the issue did not depend on whether Luis or an accomplice ultimately fired the fatal shots during that battle.”  I remain convinced that SB 1437 has repealed provocative act murder.

RATIONAL BASIS IS THE STANDARD OF REVIEW FOR EQUAL PROTECTION CHALLENGES TO SVP LAW
People v. Cannon; S277995; 8/18/25; Cal. Supremes

A defendant alleged to be a Sexually Violent Predator (SVP) is given only a court trial unless he or she affirmatively requests a jury trial.  The SVP law doesn’t require a personal advisement to defendants of their right to a jury trial.  This defendant raises an equal protection challenge, comparing SVP law to other civil commitments such as mentally disordered offenders (MDO) and proceedings to extend the commitments of defendants found not guilty by reason of insanity (NGI).  Those statutes do require the trial court to advise defendants of their right to a jury trial and require the defendant to waive that right.  The Cal. Supremes only resolve the issue of the standard of review in determining the merits of this issue, which is rational basis: “the proper standard of scrutiny for such an equal protection challenge is rational basis review.”

Cases for the week ending September 26, 2025

 Al Menaster's Audio of The Week's Cases, 9-26-2025

DA HAS TO BE IN A TRIAL THAT IS ACTUALLY IN PROGRESS TO GET A PC 1050(g) CONTINUANCE
Hernandez v. Superior Court; A173010; 9/24/25; C/A 1st, Div. 5

PC 1050(g)(2) says for cases involving certain specified offenses, good cause to continue exists where “the prosecuting attorney assigned to the case has another trial, preliminary hearing, or motion to suppress in progress in that court or another court.”  What does “in progress” mean?  This C/A in 2012 said that a trial is in progress “if the case at issue has been called for trial by a judge who is available and ready to try the case to conclusion, the court has committed its resources to the trial, and the parties are ready to proceed.”  (Burgos, 206 CA5th 817, 835-836.)  This C/A restates that rule here.  The DA argues that she was in a trial in progress on the crucial days.  The judge used a trick called “stacking,” meaning announcing that when the judge finished the case the judge was actually in trial on, the case with this DA would be the next trial.  Nice try; the DA wasn’t actually in trial on the stacked case when this case got continued past the last day.  The C/A rejects the DA’s claim that the defense should lose because the motion to dismiss was made and heard when the DA was engaged in that trial; the crucial time is the day of the continuance, not the day of the motion to dismiss.  The DA also argues that the defense should lose because the defense failed to move to dismiss in a timely manner.  Wilson (60 C2d 139) says that to perfect a statutory speedy trial claim, the defense has to object to the continuance and “thereafter file a timely motion to dismiss.”  It’s not clear what “timely” means, but the C/A rejects this claim here, saying that everyone knew that the defense was going to make the motion and the motion wasn’t filed so late that it risked wasting court resources.

IMPLIED MALICE REQUIRES HIGH DEGREE OF PROBABILITY DEATH WILL RESULT
People v. Pierce; F086411; 9/17/25; C/A 5th

In Reyes (14 C5th 981), the Cal. Supremes said, “To suffice for implied malice murder, the defendant’s act must not merely be dangerous to life in some vague or speculative sense; it must involve a high degree of probability that it will result in death.”  “But implied malice murder requires attention to the aider and abettor’s mental state concerning the life endangering act committed by the direct perpetrator, such as shooting at the victim. The relevant act is the act that proximately causes death.  Assuming the life endangering act was the shooting, the trial court should have asked whether Reyes knew that Lopez intended to shoot at the victim, intended to aid him in the shooting, knew that the shooting was dangerous to life, and acted in conscious disregard for life.”  The jury in this case was told that a finding of implied malice required only that the jurors find that “]t]he natural and probable consequences of the act were dangerous to human life.”  The defense appeals, on the ground that this is not the law.  The C/A assures us that it is and that the two phrases are “the same standard.”  You wonder why the Supremes were so adamant about the language “high degree of probability that it will result in death” if the phrase previously being used was the equivalent.  I think that this case is just wrong and won’t stand up.

STATEWIDE STATISTICS SHOWING RACIAL DISPARITIES ARE INSUFFICIENT FOR DISCOVERY
People v. Superior Court (Lalo); E085658; 9/24/25; C/A 4th, Div. 2

Effective 1/1/21, the Racial Justice Act (RJA) bars convictions and sentences tainted by racial bias.  (PC 745(a).)  The RJA provides for discovery “upon a showing of good cause.”  (PC 745(d).)  This C/A reverses the trial court’s discovery order.  First, the C/A finds that the defense RJA claims are contradicted by the court’s evidentiary exhibits.  The defense next cited statewide statistics showing that Pacific Islanders, Native Hawaiians, and persons of Samoan descent are overrepresented in Cal. prisons and jails.  The defendant is of Samoan descent.  The C/A claims that in Warrick (35 C4th 1011) the Cal. Supremes ruled that to obtain discovery in an RJA context a defendant is required “to present factual allegations of specific misconduct involving the defendant’s case.”  The C/A notes Gonzales (108 CA5th Supp. 36), where the court ruled that countywide statistics can provide good cause for discovery, but “the statewide statistics are at most general indications of what are arguably inequalities in the state’s justice system—they are not specific factual allegations of misconduct in defendant’s case.”

SANCTIONS FOR FILING A BRIEF WRITTEN BY A.I.
Noland v. Land of the Free; B331918; 9/12/25; C/A 2nd, Div. 3

This is an otherwise unremarkable opinion in a civil case, not worthy of publication.  But.  “What sets this appeal apart—and the reason we have elected to publish this opinion—is that nearly all of the legal quotations in plaintiff’s opening brief, and many of the quotations in plaintiff’s reply brief, are fabricated. That is, the quotes plaintiff attributes to published cases do not appear in those cases or anywhere else. Further, many of the cases plaintiff cites do not discuss the topics for which they are cited, and a few of the cases do not exist at all. These fabricated legal authorities were created by generative artificial intelligence (AI) tools that plaintiff’s counsel used to draft his appellate briefs. The AI tools created fake legal authority—sometimes referred to as AI ‘hallucinations’—that were undetected by plaintiff’s counsel because he did not read the cases the AI tools cited.”  The C/A imposes a $10,000 fine and refers the lawyer to the State Bar.  Be careful.

Cases for the week ending September 5, 2025

Al Menaster's Audio of The Week's Cases, 9-05-2025

PREJUDICE WITH NO JUSTIFICATION REQUIRES DISMISSAL FOR CAL. SPEEDY TRIAL VIOLATION
Arriaga v. Superior Court; B340795; 8/29/25; C/A 2nd, Div. 3

Well, it’s about time I won a case, don’t you think?  So the defendant was charged with contracting without a license.  That’s usually a misdemeanor, but it’s a felony if the defendant “diverted” funds, meaning that he used the money for purposes other than the construction project.  The delay after filing in this case was a mere 16 years, 4 months.  During that period, the defendant’s father, who was the person doing the construction work, died.  Then the bank purged the checks that we say would have shown that the defendant didn’t divert the money.  There is prejudice because of the father’s death and the purged bank records.  There is no justification; the DA and the police did literally nothing to find or notify the defendant.  Cal. constitutional speedy trial law requires the prejudice to be balanced against the justification.  The C/A finds prejudice and no justification, and orders the case dismissed.  OK, I was appellate counsel, but trial counsel DPD Chelsea Padilla set this up, and much of the court’s opinion relies on information that she provided to reject the worthless arguments the DA made.

ROBBERY AFFIRMED WHEN ANY FORCE IS USED TO OVERCOME PHYSICAL RESISTANCE BY THE VICTIM
People v. Mendez-Torres; A168697; 8/27/25; C/A 1st, Div. 5

In Estes (147 CA3d 23), the C/A held that a theft can become a robbery if the defendant uses force to retain stolen property.  The defendant here walked into a store and immediately grabbed the cash register and started pulling it off the counter.  The victim reached for the register, trying to take it back. She got her hand on the register, but she couldn’t pull it back because the defendant was stronger.  He pulled the inner cash drawer out.  The defendant never touched the victim.  The C/A holds that these facts suffice to establish a robbery.  “Because J.S. was able to place her left hand squarely on the register in her effort to pull the cash register back to her side of the counter, there was substantial evidence that she ‘physically resist[ed]’ the seizure of the register.”  How much force is necessary?  “[T]he use of any force that overcomes any physical resistance by the victim is sufficient to establish a robbery.”  The C/A italicizes “any” both times.  However, the C/A reverses the robbery conviction, finding instructional error.  The judge told the jury that the force required for a robbery only had to be some amount “more than the incidental touching necessary to take the property.”  The C/A says that this was wrong.  “When the defendant does not physically touch the victim, the victim’s physical resistance is the key to determining whether there is force sufficient to establish a robbery.”  Again, “any force applied by the defendant that successfully overcomes this resistance is sufficient to convert a theft into a robbery.”

CALCRIM JURY INSTRUCTIONS ARE PREFERRED BUT NOT MANDATORY
People v. Parker; C098819; 9/2/25; C/A 3rd

The jury asked a question about how intoxication relates to heat of passion in the context of voluntary manslaughter.  Instead of reading CALCIM 625, the judge tracked PC 29.4(b), telling the jury, “Evidence of a person being ‘under the influence’ is relevant only as to whether the Defendant premeditated, deliberated, or harbored express malice aforethought.”  CALCRIM 625 makes it clear that voluntary intoxication can reduce a murder to a voluntary manslaughter by negating the intent to kill.  On appeal the defense argues that what the judge told the jury was that intoxication can negate the intent to kill but can only reduce a first-degree murder to a second-degree murder, not murder to voluntary manslaughter.  The C/A rejects this argument, finding that, given all of the jury instructions, what the judge told the jury was sufficient.  Note that the C/A says that “decisional authority establishes that the use of the Judicial Council‑approved instructions is not mandatory.”  The C/A cites Aranda, 55 C4th 342, 354; and Cornejo, 3 CA5th 36, 60.  If you’re trying to offer a jury instruction not in CALCRIM, cite these cases.  If you’re resisting the DA’s attempt to avoid CALCRIM, cite Aranda and Cornejo, which say that while CALCRIMs aren’t mandatory they are “preferred.”                                                                                                      

MISDEMEANOR MILITARY DIVERSION DOES NOT REQUIRE SHOWING A NEXUS TO MILITARY SERVICE
Segura v. Superior Court; G065079; 9/2/25; C/A 4th, Div. 3

Military diversion is available for misdemeanors on a showing that the defendant was or currently is a member of the military and “may be suffering from sexual trauma, traumatic brain injury, post‑traumatic stress disorder, substance abuse, or mental health problems as a result of their military service.”  (PC 1001.80(b).)  The C/A rules that the word “may” in the statute only imposes a burden on the defendant “to show a reasonable possibility that he or she is suffering from a qualifying condition as a result of their military service.”  Military diversion is also available for a felony, but the felony defendant must show both of the above conditions and that “the defendant’s condition was a significant factor in the commission of the charged offense.” (PC 1001.80 (c)(2)(A), effective 1/1/25.)  Here, the defendant was charged with four misdemeanors related to DUI.  The judge denied diversion because the defense failed to show a nexus between the charges and his military service.  But that’s only a requirement for a felony charge; these charges are misdemeanors.  The C/A remands this back for a proper hearing.

Cases for the week ending August 29, 2025

Al Menaster's Audio of The Week's Cases, 8-29-2025

CHANGES TO THE GANG STATUTE MEAN SOME GANG PRIORS ARE NOT STRIKES
People v. Fletcher; S281282; 8/25/25; Cal. Supremes

Effective 1/1/22, AB 333 made major changes to “criminal street gang” crimes and enhancements, greatly limiting what conduct is sufficient.  What about strike priors based on the previous version of the gang statutes?  Each such prior must be evaluated in light of AB 333 and many will no longer qualify under the amendments.  Are these still strikes?  Given those changes, do pre‑AB 333 convictions for PC 186.22 still qualify as strikes or PC 667(a) enhancements?  The C/As have split on this issue.  As do the Supremes, but the majority rules that the changes made by AB 333 control in determining whether a prior PC 186.22 conviction qualifies as a strike or a PC 667(a) prior.  So this is confusing.  One issue is the so-called “lock-in provisions” of Prop. 21 and Prop. 36, which fix the list of serious felonies for purposes of the 3-Strikes law as of a specific date.  The Supremes say that “whether a prior felony conviction is for a ‘serious felony’ or ‘violent felony’ is determined by the list of felonies in section 1192.7(c) or section 667.5, subdivision (c) in effect on the lock‑in date applicable to a defendant’s current offense, even if the prior offense preceded the classification of those offenses as ‘serious’ or ‘violent’ felonies or was added to the list of felonies after the prior offense was committed.”  The majority holds, “Assembly Bill 333 applies to the determination of whether the conviction qualifies as a prior serious felony conviction under subdivision (c)(28) of section 1192.7 for purposes of the Three Strikes law and prior serious felony enhancements.”  What this actually means, as the dissent explains, is that “the majority’s holding means that Fletcher and Taylor, who indisputably were convicted of prior serious felony offenses, will be treated as if they had no such convictions.”  Note: Under this logic, pre‑AB 333 substantive gang crimes under PC 186.22(a) and gun enhancements under PC 12022.5 would also be invalidated.  Confused?  If you have a gang prior, you’ll have to do a deep dive into this opinion.  On another point, some C/As had claimed that applying the changes to a prior serious felony was barred because it would have been an unconstitutional amendment of a ballot initiative.  The majority disagrees, saying that “such application of Assembly Bill 333 does not unconstitutionally amend any ballot initiative.”

A KELLY FOUNDATION DOES NOT APPLY WHEN A NEW TEST IS ONLY ONE OF MANY
People v. Alvarez; S089619; 8/18/25; Cal. Supremes

Another monster death penalty affirmance from the Cal. Supremes: 139-page lead opinion, 159 pages total.  Many issues.  One of note.  In rebuttal, the DA called an expert to rebut the defense suggestion that Shari was the killer, not appellant.  The expert administered the Child Abuse Potential Inventory test (CAPI-6) to Shari and concluded that Shari “was not at risk to physically abuse children in her care.”  You might think that this sort of testimony is bonkers, but we use Stoll (49 C3d 1136), where the Cal. Supremes held that a trial court can’t exclude defense experts who have tested the defendant and would testify that the defendant doesn't meet the profile of a molester.  Here, the defense challenges the testimony on Kelly (17 C3d 24) grounds.  Kelly requires general acceptance of a new scientific test in the relevant scientific community before that test is admissible.  The court never quite admits that the expert’s reliance on the CAPI-6 test alone would have to meet the Kelly foundational requirements, instead insisting that the test was only part of the basis for the expert’s opinion.  The expert testified that “his expert opinion was not based on the CAPI‑6 test alone, but instead factored in at least eight other tests, several questionnaires, a clinical interview, and documentation of Shari’s personal, social, legal, and medical history.”  The actual rule here is unclear.  If you’re offering expert opinion based on a new kind of test, make sure your expert does lots of other testing that supports their opinion.  If you’re challenging the prosecution’s expert, try to get that expert to admit primary or exclusive reliance on the new test you’re challenging.

JUDGES ARE LIMITED IN CORRECTING SENTENCING ERRORS AFTER SENTENCE IS FINAL
People v. Singleton; B341793, B336504; 8/20/25; C/A 2nd, Div. 7

CDCR sometimes sends a letter to judges informing them that a sentence they imposed “may be in error,” code for, “you screwed this up, idiot.”  The problem is that the statutes governing finality of sentences provide limited remedies.  PC 1172.1(a)(1) gives a court jurisdiction to recall a felony sentence on recommendation of CDCR or within 120 days of the imposition of sentence.  The former situation only permits resentencing to a term no greater than the initial sentence.  So does the judge have jurisdiction to correct an unauthorized sentence once that sentence is final?  There happens to be a caselaw split on this: “The appellate courts are divided as to whether, in the absence of a specific authorizing statute, a superior court has jurisdiction to correct an unauthorized sentence once the judgment is final.”  This C/A decides that “the courts in these circumstances lack fundamental jurisdiction to vacate or modify the sentence.”  The C/A rules that a sentence can only be modified if some statute authorizes it (such as PC 1172.1) “or by the filing of a petition for a writ of habeas corpus.”  The judge here increased the defendant’s sentence without his presence and without conducting a full hearing.  The C/A rules that this was error, the court had no jurisdiction to do so.  But the C/A recognizes that leaving a void sentence in place “would be manifestly unjust.”  So they treat the direct appeal as a habeas corpus petition and vacate the unlawful sentence.  All this angst seems pointless; just tell us to file habeas corpus petitions, OK?

Cases for the week ending August 22, 2025

Al Menaster's Audio of The Week's Cases, 8-22-2025

THE FACTS OF THE CRIMES CANNOT JUSTIFY DISCRETIONARY DENIAL OF MENTAL HEALTH DIVERSION
Gomez v. Superior Court; C102211; filed 8/6/25; published 8/15/25; C/A 3rd 

The C/A rules that writ relief is available to challenge denial of mental health diversion.  (MHD, PC 1001.36.)  To get MHD, the defendant has to be diagnosed with a mental disorder, which must be “a significant factor in the commission of the charged offense.”  The MHD statute was amended to require the judge to find that the mental disorder was a significant factor in the commission of the offense “unless there is clear and convincing evidence that it was not a motivating factor, causal factor, or contributing factor to the defendant’s involvement in the alleged offense.”  (PC 1001.36(b)(2).)  The C/A says that the absence of evidence (here, no mention of mental issues in the arrest reports) establishing that the defendant’s mental disorder was a factor in the crimes is not clear and convincing evidence that the mental disorder was not a factor.  (Citing Lacour, 110 CA5th 391, 404.)  The trial judge also denied MHD on the basis that the defendant was likely to commit a super strike.  The C/A says there’s no evidence to support that claim.  The defendant had no record, the charged offense (robbery) is not itself a super strike (the list is in PC 667 (e)(2)(C)(iv)), and the defendant had been released from custody for a year before the MHD ruling and had committed no new crimes.  Finally, MHD was denied by the judge based on the violence of the crime and the victim’s serious injuries.  The C/A rules that these are impermissible reasons for denial of MHD, saying, “Here, instead of focusing on the purpose of the diversion statute and explaining why diversion would not meet those goals, the trial court denied diversion under its residual discretion based solely on the facts and circumstances of the robbery, including the injuries sustained by the victim. The facts and circumstances of the robbery were, however, considered under the unreasonable risk of dangerousness criteria of the statute. The trial court cannot invoke its residual discretion to create a lower standard for finding that the facts and circumstances of the robbery indicate diversion would not protect public safety.”  (Citing Sarmiento, 98 CA5th 882, 896.)  Denial of MHD reversed.                                         

 SPECIFIC INTENT INSTRUCTION IS TOO GENERAL
People v. Wright; B336249; 8/20/25; C/A 2nd, Div. 8

The defendant was charged with robbery.  Two issues.  The CALCRIM on voluntary intoxication (3426) says that voluntary intoxication is only relevant in deciding whether the defendant acted with the “specific intent or mental state required, e.g. the intent to permanently deprive the owner of his or her property.”  Here, the judge instructed the jury on the defendant’s claim that his voluntary intoxication caused him to black out when robbing the convenience store.  The judge said, “You may consider that evidence only in deciding whether the defendant acted with specific intent for count 1.”  Justice Wiley writes a screed about the confusion surrounding specific intent and general intent, concluding, “In sum, ‘specific intent’ does not have one fixed meaning. It can have different meanings that vary from one usage to another,” and finds that here, the instruction was wrong.  The instruction should have said, “You may consider that evidence only in deciding whether the defendant acted with the intent to deprive the owner of the property permanently.”  Of course, the error was harmless.  Fun fact: the intent required for theft and robbery is intent to deprive the owner of the item permanently.  But in the law’s wisdom, “permanently” doesn’t exactly mean permanently.  The Cal. Supremes have said that “intent to deprive the owner of the property permanently” is “satisfied by the intent to take the property only temporarily, but for so extended a period of time as to deprive the owner of a major portion of its value or enjoyment.”  (Avery, 27 C4th 49, 52.)  So permanent means temporary.  Second issue: The Cal. Supremes recently issued a case named Wiley.  (17 C5th 1069.)  Justice Wiley describes the case, which applies Erlinger (602 US 821), saying “Erlinger held that virtually any fact that increases the prescribed range of penalties to which a criminal defendant is exposed must be resolved by a unanimous jury beyond a reasonable doubt or freely admitted in a guilty plea.”  Here the basis for high term was that the defendant had suffered “numerous” prior convictions.  OK, 13; but 11 were from a single case.  So this is a jury issue.  Justice Wiley can’t find harmless error and reverses the sentence.

 FAILURE TO APPOINT REGIONAL CENTER ON A SHOWING OF DEVELOPMENTAL DISABILITY IS ERROR
People v. Lara; F086534; 7/17/25; C/A 5th

Defense counsel raised an issue about the defendant’s competency to stand trial.  (PC 1368.)  The court initiated competency proceedings.  The evaluating psychologist concluded that the defendant was competent, but observed that the defendant had extremely low intelligence, and scored below the cutoff on all three sections of a test designed to assess incompetence due to intellectual disability.  In addition to the usual evaluations related to the defendant’s mental status of being able to understand the nature of the proceedings and cooperate with counsel, “If it is suspected the defendant has a developmental disability, the court must appoint the director of the regional center or the director’s designee to examine the defendant to determine whether he or she has a developmental disability.”  (Citing PC 1369.)  The test is whether “there is sufficient doubt the defendant may be developmentally disabled.”  (Castro, 78 CA4th 1402, 1416.)  The C/A says that here, the report was enough to trigger the duty to appoint the regional center to evaluate the defendant.  The failure to make this appointment results in the C/A reversing the conviction.

Cases for the week ending August 15, 2025

Al Menaster's Audio of The Week's Cases, 8-15-2025

PROTECTIVE ORDERS BARRED WHERE DEFENDANT NOT CONVICTED OF THE CHARGE 
People v. Pena; B331827; 8/13/25; C/A 2nd, Div. 7

In June I reported a case on this subject.  (Walts, 112 CA5th 127.)  Here’s another C/A with the same result.  A court is permitted to issue a protective order for 10 years barring any contact with a “victim” of enumerated crimes.  (PC 136.2(i)(1).)  The previous version of PC 136.2 said that the judge could consider issuing an order barring contact with “the victim.”  In 2018, PC 136.2 was amended to say that the court could consider issuing an order barring contact with “a victim of the crime.”  The C/A concludes that the court can bar contact only for victims named in charges for which the defendant was convicted.  “We hold that the language in section 136.2, subdivision (i)(1), authorizing the court to issue a protective order for ‘a victim of the crime’ means a victim of one of the enumerated crimes in the subdivision the defendant was convicted of committing.”  The judge here issued a protective order for a named victim for a charge on which the jury hung.  Nope.  “Because the trial court issued a protective order for a person who was not a victim of a qualifying crime Pena was convicted of committing, we vacate the protective order.”

MITIGATION FOR MILITARY SERVICE NEED NOT RELATE TO THE CRIMES
People v. Haydee; G063442; 8/12/25; C/A 4th, Div. 3

Penal Code section 1170.91 requires judges to consider various conditions caused by military service as mitigating sentencing factors.  The initial version of the statute was prospective only, but the statute was amended and now says that any veteran “who may be suffering from sexual trauma, traumatic brain injury, post‑traumatic stress disorder, substance abuse, or mental health problems as a result of the person’s military service may petition for a recall of sentence . . . to request resentencing if the circumstance of suffering from sexual trauma, traumatic brain injury, post‑traumatic stress disorder, substance abuse, or mental health problems as a result of the person’s military service was not considered as a factor in mitigation at the time of sentencing.” (PC 1170.91(b)(1).)  When a judge receives a petition seeking relief, the judge first makes an eligibility determination: “whether the petitioner may be suffering from a qualifying disorder from his military service and that circumstance was not considered as a mitigating factor at his original sentencing hearing.”  (PC 1170.91(b)(3).)  If the court finds eligibility, the court has discretion to resentence the defendant to a lower term.  (PC 1170.91(b)(3).)  “That decision is discretionary, but not without limits. In deciding whether a defendant is suitable for resentencing, the court may not act in an arbitrary or capricious manner or rely on improper considerations.  Rather, it must base its decision on an individualized assessment of the defendant, his offenses, and the public interest.”  (See Panozo, 59 CA5th 825, 837.)  The AG here argues that the defense failed to show that the mental disorders he suffered as a result of military service were related to the crimes he was convicted of.  This C/A says that “resentencing under section 1170.91 turns on whether the defendant’s mental disorders are related to his military service, not whether those disorders were related to his criminal conduct.”  The C/A also finds that the trial court erred by refusing to consider the defendant’s rehabilitative efforts in prison.  Resentencing considerations include “any pertinent circumstances which have arisen since the prior sentence was imposed.” (Yanaga, 58 CA5th 619, 625, quoting Dix, 53 C3d 442, 460.)  Denial of relief reversed.

ANOTHER CLEARLY WRONG CASE SAYING THAT PROVOCATIVE ACT MURDER DOESN’T IMPUTE MALICE
People v. Cunningham; B323640; 7/23/25; C/A 2nd, Div. 6

Another Justice Yegan special.  The Cal. Supremes granted transfer, issued Antonelli (17 C5th 719), reversing two of Yegan’s opinions dealing with malice, and sent this back to Yegan.  Of course, the defense loses.  How?  This case arises in an SB 1437 context.  SB 1437 (codified in PC 1170.95, now renumbered 1172.6) allows a defendant to challenge a prior murder conviction where the defendant wasn’t the actual killer, didn’t aid in the killing, or “was [not] a major participant in the underlying felony and acted with reckless indifference to human life.”  The murder in Antonelli was prior to 2009.  The Cal. Supremes ruled in Antonelli that “malice was not necessarily required on the part of the non‑provocateur accomplice under the provocative act murder doctrine at the time of defendant’s conviction and that the jury instructions in any given case will generally inform the prima facie inquiry under section 1172.6.”  So for murders committed before 2009, absent a jury finding that the defendant actually had malice, malice can’t be imputed in a provocative act context.  Yegan rules that the defendant is ineligible for SB 1437 relief because the record of conviction established that he was convicted as an actual provocateur who acted with personal malice.  He further claims that the record shows that the defendant “deliberatively performed [the criminal act] with knowledge of the danger to, and with conscious disregard for human life.”  Yegan, of course, previously said that provocative act murder “imputed” malice. (Johnson, 221 CA4th 623, 627.)  Yegan was later forced to say that his use of “imputed” was “inartful.”  What Yegan does not address is my point, that provocative act murder was entirely abrogated by SB 1437.  In fn. 7 in Antonelli, the Cal. Supremes noted this point but didn’t resolve it.   Yegan, of course, doesn’t discuss it.

Cases for the week ending August 8, 2025

Al Menaster's Audio of The Week's Cases, 8-8-2025

AB 1950 RETROACTIVELY UNDOES PRISON SENTENCES IMPOSED BEFORE AB 1950 TOOK EFFECT
People v. Faial; S273840; 7/31/25; Cal. Supremes

AB 1950 shortened felony probation to a maximum of two years (with exceptions not applicable here).  In 2017, the defendant pled and was sentenced to 12 years in prison, but execution of the sentence was suspended, and he was placed on 4 years of probation.  In 2019, more than 2 years later, the trial court found the defendant in violation of probation and sent him to prison.  AB 1950 became effective Jan. 1, 2021.  Everyone agrees that AB 1950 is retroactive, but what does that really mean in this context?  The Cal. Supremes unanimously agree that AB 1950 retroactively reduced this defendant’s maximum probation term to two years, and that the court therefore retroactively lost its ability to sentence him to prison on the probation violation.  Sentence reversed.  Excellent outcome and a big deal for many of our clients.

PROSECUTOR HAS BURDEN TO OVERCOME PRESUMPTION OF MENTAL HEALTH DIVERSION ELIGIBILITY
People v. Harlow; D084252; 8/5/25; C/A 4th, Div. 1

To get Mental Health Diversion (MHD), the defendant must be diagnosed with a mental disorder, which has to be “a significant factor in the commission of the charged offense.”  The MHD statute was amended to require the judge to find that the mental disorder was a significant factor in the commission of the offense “unless there is clear and convincing evidence that it was not a motivating factor, causal factor, or contributing factor to the defendant’s involvement in the alleged offense.”  (PC 1001.36 (b)(2).)  Defendants are eligible if they have been diagnosed with a recognized mental disorder within the past 5 years.  (PC 1001.36 (b)(1).)  The defendant’s crime was in April of 2020; he sought MHD in September of 2023, submitting two mental health evaluations that were done in the previous two months.  The judge denied MHD on the basis that a mental health disorder diagnosed three years after the crime failed to establish that the disorder played a significant factor in the offense.  The C/A says that given the 5-year period stated in the statute “the court was not free to apply a timing rule different than one the Legislature chose to enact.”  The C/A also says that there’s no substantial evidence to support a finding by clear and convincing evidence that the defendant’s disorders weren’t factors in the crime.  The AG argues that the DA said that there was nothing showing that the defendant was suffering from any disorders at the time of the incident.  The C/A stresses that the burden of proof here required the DA to present evidence that the “disorders did not contribute to causing the incident.”  Which they did not.  Denial of MHD reversed.

C/A WRONGLY HOLDS THAT VOLUNTARY MANSLAUGHTER DOES NOT REQUIRE MALICE
People v. Fleming; B315836; 8/5/25; C/A 2nd, Div. 6

If you’re getting tired of me bashing Justice Yegan nonstop, make him stop issuing such nonsense.  The Cal. Supremes sent this back to Yegan, which is a big hint that he’s just wrong.  But he disagrees.  In Reyes (14 C5th 981), the Cal. Supremes said, “To suffice for implied malice murder, the defendant’s act must not merely be dangerous to life in some vague or speculative sense; it must involve a high degree of probability that it will result in death.”  “But implied malice murder requires attention to the aider and abettor’s mental state concerning the life endangering act committed by the direct perpetrator, such as shooting at the victim. The relevant act is the act that proximately causes death.  Here, assuming the life endangering act was the shooting, the trial court should have asked whether Reyes knew that Lopez intended to shoot at the victim, intended to aid him in the shooting, knew that the shooting was dangerous to life, and acted in conscious disregard for life.”  Clear?  Not to Yegan, who reasons that a Reyes jury instruction was unnecessary since the charged crime here was voluntary manslaughter, and he claims that implied malice has no bearing on voluntary manslaughter charges.  Yegan cherry picks a couple of cases with vague language that seems to say that voluntary manslaughter doesn’t involve implied malice, but this was clarified in Bryant (56 C4th 968).  Yegan cites Bryant, but doesn’t seem to have read it, since it clearly states, “Although we have on occasion employed somewhat different formulations to define the offense of voluntary manslaughter, we have never suggested that it could be committed without either an intent to kill or a conscious disregard for life.”  (At p. 969.)  Outrage of the week.

BAN ON LIFE WITHOUT PAROLE SENTENCES FOR JUVENILES DOES NOT APPLY TO 18-YEAR OLDS
People v. Christiansen; G062920; 7/30/25; C/A 4th, Div. 1

In Miller (567 US 460), the US Supremes said that imposing life without parole (LWOP) sentences on juveniles violates the 8th Amendment.  This defendant committed his crimes when he was 18.  He argues that Miller should be expanded to cover him as well.  The C/A refuses to expand Miller to 18-year olds. The defendant also argues that his LWOP sentence violates the Cal. Constitution’s prohibition on cruel and unusual punishment.  The C/A also rejects this claim, describing in some detail all of the relevant facts of the aggravated kidnapping conviction.  They conclude that “Based on the nature of Christensen’s offense and his criminal history, his sentence is not grossly disproportionate to his individual culpability.”  Sentence affirmed.

Cases for the week ending August 1, 2025

Al Menaster's Audio of The Week's Cases, 8-1-2025

Cases for the week ending July 25, 2025

Al Menaster's Audio of The Week's Cases, 7-25-2025

Cases for the week ending July 18, 2025
Al Menaster's Audio of The Week's Cases, 7-18-2025

Cases for the week ending July 11, 2025

Al Menaster's Audio of The Week's Cases, 7-11-2025

ACCESSING PUBLIC RECORDS IN A POLICE PERSONNEL FILE DOES NOT VIOLATE THE HACKING STATUTE

Teran v. Superior Court; B341644; 6/26/25; C/A 2nd, Div. 5

This case got lots of press.  The AG alleged that the defendant took information she obtained when she was the L.A. Sheriff’s Constitutional Policing Advisor and had it included in the DA’s Brady files when she was a deputy district attorney. The AG argued that this conduct violated PC 502, which is essentially a hacking statute, making it a crime to “[k]nowingly access[ ] and without permission take[ ], cop[y], or make[ ] use of any data from a computer, computer system, or computer network.”  But here’s the thing: the defendant had lawful access to the Sheriff’s database, and the information at issue was nothing more than publicly‑available court documents that happened to be stored in police personnel files.  “According to the People, the data need not be confidential, proprietary, or sensitive in any respect, and extends to purely public records.”  The C/A notes in a footnote (6) that the AG’s theory would make it a felony for this defendant to provide her own lawyers with this information.  The C/A emphatically rejects the AG’s position: “the Legislature never intended this statute – which is principally aimed at computer hacking and tampering – to be used to criminally prosecute disclosure of purely public information that happened to be stored on a computer.”  The C/A orders the case dismissed.

CCP 170.6 CHALLENGE APPLIES TO COLLABORATIVE COURTS

People v. Superior Court (Broadway); D085508; filed 6/25/25; published 7/8/25; C/A 4th, Div. 1

The San Diego County Behavioral Health Court (BHC) is a collaborative court that provides an avenue for defendants suffering from serious mental illness to receive court-supervised treatment under formal supervised probation.  There are two defendants here: one was convicted by a jury, the other by plea.  The trial judges referred both cases to the BHC.  The DA filed CCP 170.6 challenges against the BHC judge.  The BHC judge struck the challenges on the basis that any further proceedings did not involve contested issues of fact or law.  The C/A reverses.  The BHC “trial court must consider whether the defendant meets the agreed upon eligibility and suitability criteria for admission, and, in that sense, the court’s decision is fairly characterized as deciding a contested issue of fact.”

FELONY MURDER DOES NOT REQUIRE AN INDEPENDENT FELONIOUS PURPOSE

People v. Barnum; D082890; 6/27/25; C/A 4th, Div. 1

How is felony murder different from the special circumstance that the killing involved felony murder?  To differentiate the two theories, the courts invented the concept of “independent felonious purpose.”  This means that in order to qualify as a felony-murder special circumstance, the DA must show that “the commission of the felony was not merely incidental to the murder.” (Montelongo, 55 CA5th 1016, 1025.)  Here, the defense argues that the judge had a sua sponte duty to instruct the jury on the independent felonious purpose rule, even though this is not a case involving a special circumstance.  The C/A rejects this argument, and also rejects the defense argument that SB 1437, greatly limiting the felony-murder rule, now requires a non-special circumstance murder to include an independent felonious purpose.

EXHAUSTION OF ALL PEREMPTORY CHALLENGES IS REQUIRED TO CHALLENGE IMPROPER DENIAL

People v. Barrett; S124131; 6/23/25; Cal. Supremes

This is a truly monstrous death-penalty affirmance, fully 217 pages long.  There are many issues.  This was a murder in prison, so it was investigated by CDCR personnel.  The defense argued in the trial court that all CDCR personnel should be excluded from the jury pool.  This was denied.  It is renewed here.  The defense argues that CDCR is a party, so all CDCR personnel are members of a party to the action.  The Cal. Supremes reject this claim, saying that the People are the party in a criminal case, not CDCR.  The court also finds that the challenge is forfeited because the defense didn’t exhaust all its peremptory challenges.  Here’s the rule: “To preserve a contention that the court erred in denying a challenge for cause to a prospective juror, the defendant must (1) exercise a peremptory challenge to remove that prospective juror, (2) exhaust all peremptory challenges or somehow justify the failure to do so, and (3) express dissatisfaction with the jury that is ultimately selected.” (Rices, 4 C5th 49, 75.)  The defense didn’t exhaust its peremptory challenges here, so the challenge to the order rejecting exclusion of all CDCR staff is waived.

Additionally, the court rules against a defense claim of improper rebuttal evidence, but they restate the 1977 case limiting rebuttal evidence.  “Thus proper rebuttal evidence does not include a material part of the case in the prosecution’s possession that tends to establish the defendant’s commission of the crime. It is restricted to evidence made necessary by the defendant’s case in the sense that he has introduced new evidence or made assertions that were not implicit in his denial of guilt.”  (Carter, 48 C2d 737, 753-754.)  Next, the defense argues that the DA engaged in misconduct.  The Supremes find any error harmless but recite the following quotation: “It is unprofessional conduct for a prosecutor to engage in behavior or tactics purposefully calculated to irritate or annoy the court or opposing counsel.”  (Roldan, 35 C4th 646, 742.)

Cases for the week ending July 4, 2025

Al Menaster's Audio of The Week's Cases, 7-04-2025

AGGRAVATING FACTORS LISTED IN THE RULES OF COURT MUST BE FOUND TRUE BY A JURY

People v. Wiley; B341644; 6/26/25; Cal. Supremes

Big deal, big win, impacting a huge number of our cases.  PC 1170(b) prevents a court from imposing a high term prison sentence unless a jury has found an aggravating circumstance (as defined in the Rules of Court, Rule 4.421) true beyond a reasonable doubt.  (PC 1170(b)(2); enacted by SB 567.)  There is an exception, however, that allows courts to find an aggravator true if the facts establishing that aggravator can be determined based solely on a certified RAP sheet.  (PC 1170(b)(3).)  Here, the trial judge found that this exception allowed the court to review the RAP and find that the defendant’s priors were of “increasing seriousness” and that he had previously performed “unsatisfactorily” on probation, two aggravating factors listed in the Rules of Court.  The Cal. Supremes reverse, relying on Erlinger, a 2024 case from the US Supremes.  In Erlinger, the sentencing judge considered four prior burglary convictions, finding that the four convictions were “committed on occasions different from each other” to justify an enhanced sentence.  The US Supremes held that a finding that priors occurred on separate occasions must be found true by a jury, saying that “virtually any fact that increase[s] the prescribed range of penalties to which a criminal defendant is exposed must be resolved by a unanimous jury beyond a reasonable doubt (or freely admitted in a guilty plea).”  (Erlinger 602 US 821, 834.)  The Cal. Supremes say Erlinger means “the Sixth Amendment requires a jury determination” of the aggravating factors at issue here.  But they go further, saying judges can only “determine what crime, with what elements, the defendant was convicted of,” and therefore that “a defendant is entitled to a jury trial on all aggravating facts, other than the bare fact of a prior conviction and its elements, that expose the defendant to imposition of a sentence more serious than the statutorily provided midterm.”  They conclude: “the Sixth Amendment requires a jury determination of the two aggravating facts at issue here: the ‘increasing seriousness’ of a defendant’s prior convictions and unsatisfactory performance on probation, before those facts can be used to justify an upper term sentence.”  Because none of the aggravators in Rule 4.421 can be found true based solely on a review of the defendant’s prior crimes and their elements, this holding means that judges no longer have the ability to find an aggravator true on their own.  As a result, our position should be that a defendant cannot get high term unless a jury convicts him of an aggravator, or he pleads to high term.

PROBATION CONDITIONS BARRING INTERNET, DATING, AND PORN ARE OVERBROAD AND VAGUE

People v. Bray; H051237; 6/27/25; C/A 6th

 The defendant pled to possession of child porn.  (PC 311.11(c)(1).)  The court imposed probation conditions prohibiting the defendant from using the Internet without permission from his probation officer.  The defendant was also prohibited from dating, socializing with, or forming a romantic relationship with any person who has physical custody of a minor unless approved by the probation officer.  The defendant was barred from possessing pornography, and from and frequenting, working for, or engaging in any business where pornography is openly exhibited.  A probation condition is not overbroad “if it is (1) primarily designed to meet the ends of rehabilitation and protection of the public and (2) reasonably related to such ends.”  (Lopez, 66 CA4th 615, 628.)  The defendant challenges the first two conditions, arguing that they are unconstitutionally overbroad.  “The question is whether preventing Bray from dating, socializing, or forming a romantic relationship with another adult, who happens to have physical custody of a child, without the permission of a probation officer is closely tailored to the reformation and rehabilitation of Bray such that it overcomes this infringement.”  The C/A finds the socializing condition overbroad; there’s no knowledge component, and, anyway, what’s a “date”?  The probation condition banning Internet use is also overbroad.  “While we do not hold that a blanket Internet prohibition can never be appropriate, ... the Internet today is so enmeshed with society and day‑to‑day life that such a prohibition that is not narrowly and carefully tailored [is]overbroad and restrict[s] a probationer’s life in ways that are not sufficiently connected to the goal of rehabilitation.”  The porn conditions “are unconstitutionally vague,” because the orders “do not define pornography; they allow for subjective application by a probation officer and they may encompass materials whose primary purpose is not pornographic.”  (See also Gruis, 94 CA5th 19).  The C/A sends this case back to the trial court to see if the probation conditions can be modified to be constitutional.

IMPOSED BUT STAYED PRIORS ARE IN FACT IMPOSED

 People v. Rhodius; S283169; 6/26/25; Cal. Supremes

  SB 483, effective 1/1/22, made the elimination of 1‑year prison priors (PC 667.5(b)) fully retroactive.  (PC 1172.75, formerly numbered 1171.1.)  PC 1172.75 provides that when a court determines that an individual is serving a judgment where one or more of the now‑invalid priors were “imposed,” that sentence must be recalled and the invalid prior(s) stricken.  Are stayed prison priors imposed?  Six C/As said yes; this one said no.  The Cal. Supremes unanimously announce, “we conclude that section 1172.75(a) applies to enhancements that were imposed as part of the defendant’s original judgment, regardless of whether the enhancement was stayed or executed.”

Cases for the week ending June 27, 2025

Al Menaster's Audio of The Week's Cases, 6-27-2025

Cases for the week ending June 20, 2025

Al Menaster's Audio of The Week's Cases, 6-20-2025

PAROLE ELIGIBILITY PRECLUDES FINDING A SENTENCE FUNCTIONALLY EQUIVALENT TO LWOP

People v. Ortega; G063201; 6/12/25; C/A 4th, Div. 3

 PC 1170(d)(1) allows juveniles sentenced to life without parole (LWOP) to petition for resentencing.  In Heard (83 CA5th 608), the court held that denying juvenile offenders who have been sentenced to the functional equivalent of LWOP (FLWOP) the same opportunity violates equal protection.  (See also Sorto, 104 CA5th 435; and Bagsby, 106 CA5th 1040, agreeing with Heard.)  Numerous juveniles sentenced to lengthy terms obtained relief after Heard. At the age of 17, this defendant was sentenced to 42 years to life. There’s a dispute about how long a sentence must be to qualify as FLWOP, but that’s not the issue here. Instead, this C/A says that eligibility for a youth offender parole hearing (YOPH) after 25 years, pursuant to PC 3051, moots the claim that the client is serving FLWOP, regardless of the length of the original sentence. This C/A claims that Franklin (63 C4th 261) compels that result: “The requirement of a youth offender parole hearing moots a juvenile defendant’s constitutional claim that he is serving a sentence that is the functional equivalent of LWOP.”  The C/A in Sorto addressed this and determined that eligibility for a YOPH was irrelevant to eligibility under 1170(d)(1): “We also agree with the Heard court that parole eligibility under section 3051 does not render an offender ineligible for relief under section 1170(d).”  This is the first C/A to disagree with Heard, and it never even mentions Sorto.  All clear now?

 FAILURE TO OBJECT AT TRIAL FORFEITS CLAIMS OF RACIAL JUSTICE ACT VIOLATIONS

 People v. Wagstaff; H050597; 6/12/25; C/A 6th

The Racial Justice Act (RJA) is violated when someone has “used racially discriminatory language about the defendant’s race, ethnicity, or national origin.”  (PC 745(a)(2).)  “[R]acially discriminatory language,” includes “language that, to an objective observer, explicitly or implicitly appeals to racial bias, including, but not limited to, racially charged or racially coded language, language that compares the defendant to an animal.” (PC 745(h)(4).)  There’s a lot of such language here, but the C/A focuses on the judge telling the defendant during sentencing that “it’s easy to bust into people’s homes and take property because they’re not there or because you’re a strong young buck and you can do these things at‑will.”  The AG concedes that the use of “strong young buck” violated the RJA, but the C/A refuses to accept that concession.  The C/A rules that the failure of defense counsel to object to any of the racially charged language used by the judge forfeits any RJA claim.  The defense argues that the failure of defense counsel to object was ineffective assistance of counsel (IAC).  The C/A rejects this position, saying that trial counsel might have had rational tactical reasons not to object.

RESTITUTION MAY BE ORDERED DECADES AFTER SENTENCING

 People v. Sinay; B331391; filed 5/19/25; published 6/17/25; C/A 2nd, Div. 6

Thirty years after the defendant was sentenced with no restitution order, the DA sought and obtained restitution.  In McCune (16 C5th 980), the Cal. Supremes ruled that sentencing judges retain jurisdiction over a defendant subject to a restitution order until the losses can be determined.  Hilton (239 CA4th 766) and Waters (241 CA4th 822) barred restitution orders after probation is terminated or expires.  The Supremes didn’t disapprove these cases, instead saying, “In both Hilton and Waters, the Courts of Appeal held that a court lacks jurisdiction to impose new restitution orders once the period of probation has lapsed.  Neither case considered the scope of a court’s jurisdiction in the scenario we confront here, in which a sentencing court has timely ordered victim restitution and later fixes the amount of restitution after the amount of the victim’s losses become ascertainable.”  The defense here relies on a concurring opinion in McCune by Liu (Evans joining), saying that they concur on the understanding that “restitution must be fixed when the information becomes available to ascertain the amount of loss,” so jurisdiction is doubtful if restitution is ordered “beyond the time it became available or reasonably discoverable.”  The C/A rejects reliance on the concurring opinion in McCune, saying that the McCune majority held that the “trial court retains the power to fix the amount of restitution even if probation is terminated.”  The C/A describes this case: “Is there a time limit for a defendant to pay restitution in a criminal case?  Here we decide the passage of time does not limit a court’s authority to order restitution in a criminal case.”  All clear now?

HOLDING AND LOOKING AT A CELL PHONE WHILE DRIVING IS ILLEGAL

People v. Porter; H052404; 6/3/25; C/A 6th

VC 23123.5(a) states: “A person shall not drive a motor vehicle while holding and operating a handheld wireless telephone or an electronic wireless communications device” unless the phone is designed for hands-free operation and is being used that way when driving.  Here, the defendant held his cell phone in one hand while driving; he was looking at a mapping application.  Is this “holding and operating” the phone?  OK, he was holding it.  But he argues that he wasn’t actively manipulating it.  The C/A says, “we conclude ‘operating’ under section 23123.5(a) prohibits all uses of a handheld wireless telephone’s functions while driving, including observing a mapping application.”  So, observing is operating

Cases for the week ending June 13, 2025

Al Menaster's Audio of The Week's Cases, 6-13-2025

Cases for the week ending June 6, 2025

Al Menaster's Audio of The Week's Cases, 6-6-2025

SCOPE OF BRADY/JOHNSON DISCOVERY IS NOT LIMITED BY PITCHESS

Schneider v. Superior Court; B341712, 5/29/25; C/A 2nd, Div. 7

Big win for our own Lisa Zimmerman.  A Pitchess (11 C3d 531) motion seeks prior complaints against police officers for malfeasance: unlawful use of force, lying, etc.  Pitchess motions produce limited discovery.  You only get names, addresses, and telephone numbers of the complainants or witnesses.  Sometimes you get the date and location of the incident.  You can make a supplemental showing to get more if the initial disclosure turns out to not be useful.  In addition to a classic Pitchess motion is a Brady (373 US 83)/Johnson (61 C4th 696) motion.  The police sometimes share with the DA the fact that there might be Brady information on an individual officer involved in a case.  Johnson requires the DA to disclose that fact to the defense.  In the Johnson case, the Cal. Supremes said that obtaining this Brady discovery does not require us to allege that the officer engaged in wrongdoing.  We only need to state that we have been informed by the DA that there might be Brady information in an officer’s personnel file and then explain why the officer’s credibility might be relevant.  The disclosure in a Brady/Johnson motion is not limited to what we get in a Pitchess motion.  You get everything, including “documentary evidence, police reports, video evidence, and audio recordings.”  This excellent published win restates and explains all of this in clear, specific, and considerable detail.  Note that the only way we can access a police personnel file is through the use of Pitchess procedures. Whether we file a “classic” Pitchess or a Brady/Johnson, we need to use the Pitchess procedures to get the motion before the court.  Judges and opposing counsel routinely rely claim that our use of Pitchess procedures means that Brady/Johnson discovery should be limited to the scope of Pitchess. This case should finally put an end to these incorrect limitations on Brady/Johnson discovery.

STANDARD OF RECKLESS INDIFFERENCE SHARPLY LIMITED

People v. Emanuel; S280551; 6/2/25; Cal. Supremes

SB 1437, enacting PC 189(e)(3),  limited the felony-murder rule.  “If a defendant was not the actual killer or an aider and abettor acting with intent to kill, the statute now requires that the defendant be a major participant in the felony who acted with reckless indifference to human life.”  What is “reckless indifference”?  The Cal. Supremes have “set out a non-exhaustive list of considerations relevant to this determination, including use of or awareness of the presence of a weapon or weapons, physical presence at the scene and opportunity to restrain confederates or aid victims, the duration of the crime, knowledge of any threat the confederates might represent, and efforts taken to minimize risks.”   (Strong, 13 C5th 698, 706.)  Here, the Cal. Supremes examine each of these factors.  There was no evidence that the defendant used a gun or knew that the shooter ever had a gun.  The duration of the felony was brief, a factor which “is neutral in this case; it did nothing to heighten the risk of violence beyond that inherent in the robbery itself.”  As for efforts taken to minimize the risk of violence, “Emanuel planned to participate in a robbery in a public location during daylight hours. The crime occurred in the open where witnesses might be present to observe from the park, passing vehicles, or nearby residences. This factor therefore does not support a finding of reckless indifference.”  The Supremes say that even if the defendant does nothing to minimize the risk, that’s not enough to show reckless indifference where “the risk of violence posed is no more than that inherent in any violent felony.”  Finally, although the defendant could have done more to reduce the degree of violence,  “When met with resistance, Emanuel abandoned the plan rather than resort to greater violence.”  The Supremes say, “this factor — the failure to restrain a cohort — cannot be said to weigh in favor of a finding of reckless indifference without some evidence in the record indicating that the defendant had a meaningful opportunity to do so.”  “While postflight conduct may shed light on a defendant’s state of mind, conduct temporally removed from the violent act must clearly evince a culpable mental state.”  The Supremes 7-0 reverse the lower court’s finding of reckless indifference.  This is an important case, narrowing the scope of reckless indifference.

A PRISON SENTENCE OF 50 YEARS TO LIFE IS THE FUNCTIONAL EQUIVALENT OF LWOP 

People v. Cabrera; B339998; filed 5/9/25; published 5/30/25; C/A 2nd, Div. 5

        PC 1170(d)(1) allows juveniles sentenced to life without parole (LWOP) to petition for resentencing.  In Heard (83 CA5th 608), the court held that to deny juvenile offenders who have been sentenced to the functional equivalent of LWOP (FLWOP) the same opportunity violates equal protection.  (See also Sorto, 104 CA5th 435; and Bagsby, 106 CA5th 1040, agreeing with Heard.)  How long does a term have to be to qualify as FLWOP?   In Heard the sentence was 103 years to life.  Sorto involved a sentence of 140 years to life.  In Contreras (4 C5th 349), which involved an 8th Amendment challenge, the Cal. Supremes held that 50 years to life is FLWOP.  In Munoz (110 CA5th 499), the defendant was 15 years old when he was sentenced to 50 years to life. The Munoz C/A concluded that since the defendant will be eligible for parole when he is 65, this is not the equivalent of an FLWOP sentence, distinguishing Contreras as being limited to the 8th Amendment issue.  The C/A in THIS case rules that 50 years to life IS an FLWOP sentence.

Cases for the week ending May 30, 2025

Al Menaster's Audio of The Week's Cases, 5-30-2025

WHERE A SPECIFIC PRISON TERM WAS PLED TO, A PC 654 CLAIM IS BARRED AT RESENTENCING

People v. Mathis; A168363; 5/21/25; C/A 1st, Div. 5

SB 483, effective 1/1/22, made the elimination of 1‑year prison priors (PC 667.5(b)) fully retroactive.  (PC 1172.75, formerly numbered 1171.1.)  PC 1172.75 says that the court must strike the 1-year priors, then resentence.  This defendant appeals, arguing that PC 654 barred sentencing him for both voluntary manslaughter as well as hit and run because both crimes arose from the same course of conduct.  The C/A rejects this claim, relying on the defendant having pled to a specific term of prison.  Second issue.  At the resentencing, after striking the 1-year prison prior, the court imposed the upper term.  PC 1172.75(d)(4) provides that aggravating factors can’t be used to justify the upper term at the resentencing unless those aggravating factors were found true by the judge or jury or were admitted by the defendant, “[u]nless the court originally imposed the upper term.”  Which is what happened here.  There’s a case specifically holding “that the heightened factfinding requirement does not apply where the defendant originally received an upper term sentence.”  (Brannon-Thompson, 104 CA5th 455.)  The C/A applies that case here and rejects the claim that upper term was barred. 

 A DEFENDANT IS ENTITLED TO A FULL RESENTENCING ONCE THE ORIGINAL SENTENCE IS VACATED

People v. Duenas; B335274; 5/27/25; C/A 2nd, Div. 8

The defendant was convicted, sentenced, and lost on appeal.  Ten years later, the defendant filed a habeas corpus petition on sentencing enhancements, the C/A granted the petition, and the trial judge stayed an enhancement, reducing the defendant’s sentence from 23 years to 20 years.  The defense argued that the defendant was entitled to a full resentencing, including the many sentencing changes enacted since his conviction.  The judge said no.  The C/A reverses.  “As the California Supreme Court has explained, once a court determines that a defendant is entitled to resentencing on habeas review, the result is vacatur of the original sentence, whereupon the trial court may impose any appropriate sentence.” (Padilla, 13 C5th 152, 163.)  “Accordingly, once the trial court resentenced Duenas in response to our order to show cause, he was entitled to a full resentencing and retroactive application of new ameliorative legislation.”  There was a case to the contrary, Esquivias, formerly at 103 CA5th 969, in which review has been granted.  The majority thinks that Esquivias is wrong and refuses to follow it.  The dissent agrees with Esquivias and thinks that it should be followed.

 PROOF THAT PRIORS ARE GANG RELATED REQUIRES ACTUAL BENEFIT, NOT JUST POTENTIAL BENEFIT

People v. Shively; D082912; 5/27/25; C/A 4th, Div 1

 AB 333 made many changes to the gang enhancement statute.  The gang statute requires a finding of a “pattern of criminal gang activity.”  AB 333 amended “pattern of criminal gang activity” to require that “the offenses must have ‘commonly benefitted a criminal street gang’ where the ‘common benefit . . . is more than reputational.’”  The judge here gave the jury an instruction requiring what the statute now requires.  This C/A evaluates whether there was substantial evidence to support the gang enhancement.  The PC 186.22 gang enhancement requires two predicate gang offenses: “one predicate offense alone is insufficient to establish a pattern of criminal activity.”  The only evidence presented by the DA was their gang expert claiming that the second predicate offense was gang related because burglaries are financially lucrative.   “But for none of the five predicate offenses did the gang expert provide any testimony or other evidence the burglaries in fact financially benefited the gang rather than the individual gang members who committed the burglaries.”  The C/A reverses 43 gang enhancements for lack of substantial evidence.

 FAILURE TO RAISE BANKS/CLARK ISSUES ON APPEAL BARS SB 1437 RELIEF

People v. Whipple; E083362; 5/1/25; C/A 4th, Div. 2

 SB 1437 bars liability for felony murder where the defendant wasn’t the actual killer, didn’t aid in the killing, and wasn’t a “major participant” in the underlying felony, who acted with “reckless indifference to human life.”  The major participant and reckless indifference rules come from Banks (61 C4th 788) and Clark (63 C4th 522), where the Cal. Supremes applied the Tison (481 US 137) and Enmund (458 US 782) rule in California, barring life without parole (LWOP) sentences and death sentences where the defendant “was neither a major participant in the crime nor did his actions reflect a reckless indifference to human life” in special circumstances murders.  The Cal. Supremes say, “Findings issued by a jury before Banks and Clark do not preclude a defendant from making out a prima facie case for relief under Senate Bill 1437. This is true even if the trial evidence would have been sufficient to support the findings under Banks and Clark.”  (Strong, 13 C5th 698.)  This inmate filed a 1437 petition.  The judge conducted a hearing and denied relief.  On appeal the defense argues that the judge misinstructed the jury on the Banks/Clark rule.  The C/A says that the trial occurred after Banks and Clark were issued but that the defendant “did not raise instructional error in her direct appeal, so the jury’s findings are now conclusively valid,” deciding that two separate doctrines, issue preclusion and collateral estoppel, bar relief now. 

Cases for the week ending May 23, 2025

Al Menaster's Audio of The Week's Cases, 5-23-2025

 PERSONAL INFLICTION OF GREAT BODILY INJURY REQUIRES ACTUAL PERSONAL INFLICTION

People v. Millan, F087198, 5/20/25; C/A 5th

PC 12022.7 enhances sentences for anyone who “personally inflicts great bodily injury.” (GBI.)  What does “personally inflicts” mean?  “[T]he defendant must be the direct, rather than [the] proximate, cause of the victim’s injuries.” (Warwick, 182 CA4th 788, 793.)  “[A] person who merely aids, abets, or directs another to inflict an injury is not subject to the enhanced penalty of section 12022.7.” (Ollo, 11 C5th 682, 692.)  Here, the defendant failed to protect her son X. from injuries inflicted by the victim’s father.  Is that personal infliction of  GBI? Well, one C/A has said that a parent’s failure to act when action is required is personal infliction of GBI.  (Warwick, 182 CA4th 788.)  This C/A disagrees, saying that “the People do not articulate how Jara personally inflicted great bodily injury on X. through her failure to protect X. from Millan’s abuse. They merely suggest the unremarkable proposition that, by failing to fulfill her duty to protect, she permitted Millan to cause further injury. But section 12022.7 does not permit a finding that Jara personally injured X. through Millan’s actions.”  Enhancement reversed.

NATURAL AND PROBABLE CONSEQUENCE JURY INSTRUCTIONS ARE ERRONEOUS IN MURDER CASES

People v. Richee, G062770, 5/20/25, C/A 4th, Div. 3

SB 1437 (codified in PC 1170.95, now renumbered 1172.6) bars liability for felony murder where the defendant wasn’t the actual killer, didn’t aid in the killing, and wasn’t a “major participant” in the underlying felony, who acted with “reckless indifference to human life.”  SB 775, effective 1/1/22, provided that SB 1437 relief also applies to convictions of attempted murder and manslaughter.  This C/A summarizes these new laws by saying, “Thus, convictions for express malice murder and attempted murder now require proof that the defendant personally harbored an intent to kill.”  The judge here instructed the jury that “appellants could be guilty of murder or attempted murder based on their participation in an underlying conspiracy, if murder or attempted murder were the natural and probable consequence of the conspiracy’s design.”  The C/A finds that this was error and reverses the attempted murder conviction.  As to murder convictions, though, they find the error harmless. 

 REQUIRED SHOWING TO OBTAIN DISCOVERY TO SUPPORT A RACIAL JUSTICE ACT CLAIM IS VERY LOW

McDaniel v. Superior Court, A171858, 5/19/25, C/A 1st, Div. 3

Effective 1/1/21, the Racial Justice Act (RJA) bars convictions and sentences tainted by racial bias.  (PC 745(a).)  RJA provides for discovery “upon a showing of good cause.”  (PC 745(d).)  “[I]n order to establish good cause for discovery under the [RJA], a defendant is only required to advance a plausible factual foundation, based on specific facts, that a violation of the [RJA] ‘could or might have occurred’ in his case.”  (Young, 79 CA5th 138, 159.)  The defense here sought discovery to prove a violation of the RJA on the basis that the DA charges gang enhancements more often against Black defendants than anyone else.  San Mateo County’s population is 2.7% Black.  Gang charges or enhancements were filed 9.6% of the time against Black defendants.  The Black arrest rate in San Mateo County was 6.6 times the arrest rate of whites. “The Attorney General asserts McDaniel’s reliance solely on statistical data is insufficient to establish a plausible factual foundation to meet the good cause standard. We disagree.”  “Thus, the statutory language of the RJA supports McDaniel’s use of statistical evidence as an appropriate mechanism for proving racial disparity in charging.”  “[C]ounty‑level data reflecting a racial disparity in charging or convictions may provide a plausible basis for asserting that an RJA violation ‘could or might have’ occurred.”  The showing of specific facts to compel discovery “could be met by case‑specific facts, as offered in Young. Or it could be met by specific statistical facts relevant to the charges and individuals involved, as in Gonzalez [108 CA5th Supp. 36]. Or both.”  “[C]ourts should focus on the relevance of the proffered facts to the claims of racial bias to determine whether a minimally plausible basis exists to grant discovery—a low threshold.”  “In sum, the requisite showing at the discovery stage is a low bar, and defendants may meet this showing through various types of evidence.”

PC 1203.41 RELIEF IS AVAILABLE EVEN IF THE ORIGINAL SENTENCE WAS NOT TO STATE PRISON

People v. Brown, B337098, 5/21/25, C/A 2nd, Div. 6

The judge here did not sentence the defendant to prison initially, instead suspending imposition of sentence and placing the defendant on probation for 3 years.  The defendant violated probation, probation was revoked, and the court imposed a 3-year prison sentence.  Penal Code section 1203.41 authorizes dismissals (often wrongly called expungements) for many convictions in which the defendant was sentenced to state prison.  The trial judge denied this defendant’s 1203.41 petition, finding that a 1203.41 dismissal is available only if the original sentence was to state prison.  The C/A reverses, saying, “Nothing in the language of the statute requires an original prison sentence,” any sentence to state prison permits relief.  The C/A also says that the probation violation does not render the defendant ineligible for 1203.41 relief.

Cases for the week ending Friday, May 16, 2025

Al Menaster's Audio of The Week's Cases, 5-16-2025

DEATH PENALTY AFFIRMED, OVER DISSENT FOR EXCUSING A PROSPECTIVE JUROR

People v. Oyler, S173784, 5/5/25, Cal. Supremes

Another mammoth death penalty affirmance, 138 pages plus a 21-page dissent.  The judge excused a prospective juror based upon her opposition to the death penalty.  The rule is that “prospective jurors may not be disqualified from service in a capital case solely because of their general objections to the death penalty.  Rather, such jurors are qualified to serve so long as they clearly state that they are willing to temporarily set aside their own beliefs in deference to the rule of law.”  (Stewart, 33 C4th 425, 446; Lockhart v. McCree, 476 US 162, 176.)  When asked about death versus life without parole (LWOP), “In response to yes/no questions, E.W. indicated she was not ‘open’ to both sentencing options and ‘favored’ one over the other.”  The majority says that these answers justified kicking the juror off for being opposed to the death penalty.  The dissent notes that these answers are not unequivocal, as the majority claims, but were “insufficient to disqualify E.W. without inquiry into whether she was capable of setting her bias aside and determining penalty in accordance with the law.”

YOU CAN BE CONVICTED OF CONSPIRACY TO COMMIT A CRIME YOU CAN’T COMMIT YOURSELF

People v. Hinojos; B331540; 5/12/25; C/A 2nd, Div. 1

The defendant was NOT a life prisoner, but he was convicted under the gang conspiracy statute (PC 182.5) for assault by a life prisoner.  (PC 4500.)  Can you be convicted of conspiracy to commit a crime that you couldn’t commit yourself?  There’s a case saying no.  (Roberts, 139 CA3d 290.)  This C/A says Roberts is wrong: “We therefore decline to follow Roberts, and hold defendant could be convicted of gang conspiracy to commit assault by a life prisoner.”  The C/A says, “As a general matter, a defendant may be convicted of conspiracy to commit an offense even if the defendant could not commit the offense itself.”  The C/A says that the cases articulating an exception to this general rule “by definition require the participation of two or more people,” where they “involved cooperative criminal acts in which the Legislature had chosen not to impose equal liability on all participants, but instead had parsed out the different participants’ conduct and imposed different levels of punishment depending on that conduct,” for example where a prostitute is subjected to less punishment than the pimp.  The C/A affirms the conspiracy conviction.

STALKING CONVICTION PERMITS THE COURT TO ORDER NO CONTACT WITH FAMILY MEMBERS

People v. Horton; B337373; 5/13/25; C/A 2nd, Div. 8

The jury convicted the defendant of stalking Seiko but acquitted him of stalking Seiko’s father John.  (PC 646.9.)  PC 646.9(k) says that the court should “consider” issuing a 10-year protective order barring the defendant from any contact with “the victim.”  Nevertheless, the judge issued a 10-year protective order barring contact with John as well as Seiko, even though the count describing John as a victim resulted in an acquittal.  Is John a victim?  A C/A has held that “a member of the immediate family of a stalking victim who suffers emotional harm is a ‘victim.’”  The C/A affirms the no-contact order, notwithstanding the acquittal, “because there was sufficient evidence that Horton committed or attempted to commit some harm against John,” and the standard of proof at issue isn’t proof beyond a reasonable doubt.  The judge also issued an order barring the defendant from possessing any deadly or dangerous weapon.  The C/A says that PC 29800 bars convicted felons from owning firearms, but does not bar possession of other deadly or dangerous weapons.  The C/A reverses that order as an overbroad, “unauthorized sentence,” that would apply to a variety of lawful items, including knives. 

PRIZE MONEY DOES NOT GET DEDUCTED FROM LOST LOTTERY TICKET REVENUES

People v. Anderson; A169966; 5/5/25; C/A 1st, Div. 5

This defendant “led a retail crime group.”  They went into stores selling lottery tickets; one group member distracted the clerk while another stole dozens of unsold tickets.  They would then rush to a different retailer to cash in any winning tickets before they could be invalidated.  The lottery lost $116,000 in ticket revenues, and the defendant received $62,000 in prize money.  On appeal the defendant argues that the amount of the prize money should be deducted from the lost ticket revenue because the prizes would have been paid out anyway to legitimate ticket holders.  The C/A rejects this argument.

SB 1437 RELIEF IS INAPPLICABLE TO CONVICTIONS AFTER ITS EFFECTIVE DATE

People v. Hickman; A169744; 5/5/25; C/A 1st, Div. 1

 SB 1437 (codified in PC 1170.95, now renumbered 1172.6) bars liability for felony murder where the defendant wasn’t the actual killer, didn’t aid in the killing, and wasn’t a “major participant” in the underlying felony, who acted with “reckless indifference to human life.”  This defendant pled in February, 2019.  Can the defendant invoke SB 1437 to obtain relief now?  Nope, says this C/A.  Defendants “who were convicted by plea after Senate Bill No. 1437 took effect are categorically ineligible for relief under section 1172.6.”  (See also Gallegos, 105 CA5th 434.)

Cases for the week ending Friday, May 9, 2025

Al Menaster's Audio of The Week's Cases 5-9-2025

USING EXCESSIVE FORCE PRECLUDES IMPERFECT SELF DEFENSE

People v. Temple, G062781, C/A 4th, Div. 3, 5/6/2025

Self-defense is a complete defense to murder.  (Humphrey, 13 C4th 1073, 1082.)  But a person isn’t permitted to use excessive force in self-defense.  “Even when faced with imminent fear of death, a person may only use force reasonably necessary to repel the attack, and only as long as the danger exists or reasonably appears to exist.”  (Clark, 201 CA4th 235, 250.)  “A defendant who had an actual and reasonable belief in being in imminent danger of death, but used more force than was reasonably necessary to repel the attack, or continued to use force after the danger no longer existed or reasonably appeared to exist, may not invoke self‑defense.”  Is there a duty to retreat?  “Although a defendant is not required to retreat and may pursue an assailant until the danger of injury has passed (Clark, p. 250), a reasonable opportunity to retreat may defeat a claim of perfect or imperfect self‑defense because the opportunity to retreat means that no use of force was reasonable.”  (Dominguez, 66 CA5th 163, 181.)  What about imperfect self-defense?  “Imperfect self‑defense arises when a defendant acts with a subjectively honest but objectively unreasonable belief that he or she is in imminent danger of death or great bodily injury.”  (Simon, 1 C5th 98, 132.)  Imperfect self-defense reduces a murder to manslaughter.  (Humphrey, p. 1082.)   But excessive force nullifies imperfect self-defense.  “A defendant who had an actual but unreasonable belief of being in imminent danger of death, but used more force than was reasonably necessary to repel the attack, or continued to use force after the danger no longer existed or was actually believed by the defendant to exist, may not invoke imperfect self‑defense.”  The defendant here bragged about having a knife.  He stabbed, chased, and stabbed the decedent multiple times solely because he was pushed.  The C/A finds that the judge’s failure to instruct the jury that it could consider the defendant’s mental state in evaluating imperfect self-defense was harmless error.                                                                                                               

RECKLESS INDIFFERENCE TO LIFE IS ESTABLISHED BY WILLING INVOLVEMENT IN VIOLENCE

People v. Williams, E081147, C/A 4th, Div. 2, 5/1/25

“Defendants who were neither actual killers nor acted with the intent to kill can be held liable for murder only if they were major participant[s] in the underlying felony and acted with reckless indifference to human life.” (Strong, 13 C5th 698, 708.)  “Reckless indifference to human life is implicit in knowingly engaging in criminal activities known to carry a grave risk of death.” (Scoggins, 9 C5th 667, 676.)  There are objective and subjective elements.  “As to the subjective element, [t]he defendant must be aware of and willingly involved in the violent manner in which the particular offense is committed, and he or she must consciously disregard the significant risk of death his or her actions create.”  (Scoggins, p. 677.)  Citing Clark (63 C4th 522), the C/A lists various factors relevant to the issue of reckless indifference: use of a weapon or awareness of its presence, the defendant’s physical presence at the crime scene and opportunity to restrain confederates or aid victims, the duration of the crime, the defendant’s knowledge of any threat the confederates might represent, and efforts taken by the defendant to minimize risks.  The C/A finds sufficient evidence that the subjective element was met by co-defendant Townsel, the aider who was present when “Williams violently pulled the purse from the victim’s forearm while shoving the victim backward causing the back of her head to strike the ground with a significant impact.”  “As to the objective element, [t]he risk [of death] must be of such a nature and degree that, considering the nature and purpose of the actor’s conduct and the circumstances known to him [or her], its disregard involves a gross deviation from the standard of conduct that a law‑abiding person would observe in the actor’s situation.” (Scoggins, p. 677.)  Townsel’s “acts of not seeking aid and impeding the janitor from entering the restroom are a gross deviation from the conduct of a reasonable person.”  Conviction for murder affirmed.                                 

A COURT CAN’T DENY SB 1437 BASED ON A CHARGE FOR WHICH THE DEFENDANT HAS BEEN ACQUITTED

People v. Lopez-Barraza, A168604, C/A 1st, Div. 2, 5/2/25

SB 1437 (codified in PC 1170.95, now renumbered 1172.6) bars liability for felony murder where the defendant wasn’t the actual killer, didn’t aid in the killing, and wasn’t a “major participant” in the underlying felony, who acted with “reckless indifference to human life.”  The jury in this case convicted the defendant of murder but acquitted him of conspiracy. The judge denied the defendant’s SB 1437 petition for relief, finding that the defendant “participated in some fashion at virtually every step of the planning and preparation stages of the armed robbery.”  “We hold that a trial court cannot deny relief in a [PC] section 1170.95 proceeding based on findings that are inconsistent with a previous acquittal when no evidence other than that introduced at trial is presented.”  (Cooper, 77 CA5th 393, 398.)   The C/A says, “The trial court’s finding that, beyond a reasonable doubt, Lopez-Barraza knowingly participated from the outset in planning and preparing for an armed robbery is directly contrary to the jury’s determination that the evidence did not prove beyond a reasonable doubt” that he was guilty of conspiracy.  The C/A reverses, saying that “the trial court erred in basing its decision on its view that Lopez‑Barraza participated in planning and preparing for the armed robbery of de Jesus.”                                                                                                                                                                               

Cases for the week ending Friday, May 2, 2025

Al Menaster's Audio of The Week's Cases for 5-2-2025

UNDER SB 1437, MALICE CANNOT BE IMPUTED IN PRE‑2009 PROVOCATIVE ACT MURDERS

People v. Antonelli, S281599, 4/24/25, Cal. Supremes

It’s nice when the Cal. Supremes reverse a bad C/A case; it’s fabulous when they reverse Justice Yegan.  Provocative act murder occurs “when the defendant or his accomplice, with a conscious disregard for life, intentionally commits an act that is likely to cause death, and his victim or a police officer kills in reasonable response to such act.”  (Gilbert, 63 C2d 690.)  SB 1437 amended PC section 188 to state, “Malice shall not be imputed to a person based solely on his or her participation in a crime.”  Isn’t malice being imputed in a provocative act prosecution?  In the C/A opinion in this case, Justice Yegan claimed that provocative act murder requires that the defendant himself have personally harbored malice, to avoid imputing malice.  In 2013 Yegan had expressly said that a provocative act murder does impute malice: “[M]alice is implied by law and imputed to the ‘mastermind’ despite his absence from the scene of the crime.”  (Johnson, 221 CA4th 623, 627.)  When faced with that opinion here, Yegan was forced to say that his use of “imputed” was “inartful.”  I guess that’s Yeganese for “wrong.”  In 2009, the Cal. Supremes held for the first time that a defendant can only be convicted of provocative act murder if he in fact had malice. (Concha, 47 C4th 653.)  This case arises in an SB 1437 context.  SB 1437 (codified in PC 1170.95, now renumbered 1172.6) allows a defendant to challenge a prior murder conviction when the defendant wasn’t the actual killer, didn’t aid in the killing, and wasn’t a “major participant” in the underlying felony, who acted with “reckless indifference to human life.”  The murder here was prior to 2009.  The Cal. Supremes rule that “malice was not necessarily required on the part of the non‑provocateur accomplice under the provocative act murder doctrine at the time of defendant’s conviction and that the jury instructions in any given case will generally inform the prima facie inquiry under section 1172.6.”  So for murders committed before 2009, absent a jury finding that the defendant actually had malice, malice can’t be imputed in a provocative act context.  I continue to believe that provocative act murder was abrogated by SB 1437.  In fn. 7, the Cal. Supremes note this point but don’t resolve it.  We should continue to raise it.  If you’re keeping score, Yegan is reversed in this opinion and his 2013 opinion is disapproved.  7-0.  Double whammy.

GANG EVIDENCE CAN BE RELEVANT; A SHORT MID-TRIAL DELAY IS NOT NECESSARILY ERROR

People v. Benson, B334490, 4/28/25, C/A 2nd, Div. 8

The DA was permitted to present lots of evidence about how the charges related to gangs.  The C/A upholds admission of this testimony, carefully reviewing each piece of evidence and explaining how each was relevant to issues in this case of identity, witness credibility, and motive.  Second issue: the judge granted a one-week continuance in the middle of trial due to the death of a member of the DA’s family.  The C/A reviews various mid-trial delays that have been found improper.  (E.g., Santamaria, 229 CA3d 269 (11-day continuance), Dinsmore, 102 Cal. 381 (63-day continuance), and Engelman, 116 Cal.App.3d Supp. 14 (3-week delay)).  The C/A stresses that the delay here was much shorter than those delays and rejects the claim that this delay was erroneous.

FAILURE TO FIND AGGRAVATING CIRCUMSTANCES DOES NOT ALWAYS REQUIRE REVERSAL

People v. Cabada, B315418, issued 3/24/25, modified 4/3/25; C/A 2nd, Div. 6

SB 567, effective 1/1/22, limits a court’s ability to impose an upper term sentence, amending PC 1170 “to prohibit imposition of an upper term sentence unless aggravating circumstances justify that term and the facts underlying any such circumstance, other than a prior conviction, have been stipulated to by the defendant or have been found true beyond a reasonable doubt at trial by the jury or by the judge in a court trial.”  (PC 1170(b)(2).)  This change applies retroactively to all cases not yet final on appeal.  So, what happens if a pre‑SB 567 court imposed the upper term based on improperly found aggravating circumstances?  In Lynch (16 C5th 730) the Cal. Supremes applied the Chapman (386 US 18) standard of review, ruling that reversal for resentencing is required unless: a) the reviewing court concludes beyond a reasonable doubt that the jury would “have found true all of the aggravating facts upon which the court relied to conclude the upper term was justified, or that those facts were otherwise proved true in compliance with the current statute;” and b) the record clearly indicates “that the court would have found an upper term justified had it been aware of its more limited discretion.”  The C/A finds that the error here was harmless.  Second issue. What does “fear,” an element of PC 211 robbery, require?  Does the victim need to actually be fearful, or is the issue whether a reasonable person would have felt fear?  The C/A rejects the argument that the “fear” element of robbery must be objective; it is in fact a subjective standard.  “[W]hat matters is whether the victim in this case was subjectively in fear, not whether a hypothetical and objective ‘reasonable person’ standing in the victim’s shoes would have been afraid.”  (Collins, 65 CA5th 333, 341.)

Cases for the week ending Friday, April 25, 2025

Al Menaster Audio of The Week's Cases, 4.25.2025

CHALLENGE TO JUROR UPHELD WHERE COUNSEL’S QUESTIONING WAS ONLY CURSORY

People v. Hinojos, B325167, 4/8/25,C/A 2nd, Div. 7                         

One factor that weighs in favor of a finding that the DA has improperly used a peremptory challenge against a juror is when the DA asked the juror only cursory questions.  See, e.g., Lomax, 49 C4th 530, 573; Miller–El v. Dretke, 545 U.S. 231, 244–245. These rules comes from the Batson (476 US 79) and Wheeler (22 C3d 258) line of cases. It’s codified in CCP 231.7, which specifically lists as factors in evaluating the use of peremptory challenges “[t]he number and types of questions posed to the prospective juror, including, but not limited to . . . [c]onsideration of whether the party exercising the peremptory challenge failed to question the prospective juror about the concerns later stated by the party as the reason for the peremptory challenge” and “[w]hether the party exercising the peremptory challenge engaged in cursory questioning of the challenged potential juror.”  (CCP 231.7(d)(3)(C)(i) & (ii).)  Here, the trial judge granted the prosecutor’s objection to defense counsel using a peremptory challenge against a juror who was a “White banker.”  Defense counsel explained that he was concerned about the juror’s views of gangs, even though he had not asked the juror questions about gangs. The C/A says that the failure to voir dire the juror about gangs justified the judge’s rejection of the peremptory challenge. So once again, a rule that was designed to assist us in challenging prosecutorial exclusion of jurors of color is now used against us. The juror was a banker.  Think there might have been some non-racial reasons to be concerned about his view of gangs?                                                                                                      

REFUSAL TO EXERCISE DISCRETION TO RESENTENCE IS NOT APPEALABLE                                              

People v. Roy, C100925, 4/23/25, C/A 3rd

Effective 1/1/24, AB 600 amended PC 1172.1 to allow a trial court, on its own motion, to recall a sentence and resentence a defendant when “applicable sentencing laws at the time of the original sentencing are subsequently changed by new statutory authority or case law.”  (PC 1172.1(a)(1).)  The statute says that the defendant has no right to petition under this section.  In Hodge (107 CA5th 985), the C/A ruled that since there is no right to petition, the defendant can’t appeal the denial of a petition, since there’s no appealable order.  In Chapman (108 CA5th 650), the trial judge denied the defense petition, claiming he had no jurisdiction.  Chapman said that “the filing of an unauthorized petition for relief pursuant to section 1172.1 does not deprive the court of the jurisdiction to resentence a defendant otherwise afforded to it by this section,” and then held that it is an appealable order.  The C/A in Faustinos (109 CA5th 687) agreed with Hodge, that denial of the petition isn’t appealable, but also agreed that the trial court was wrong in Chapman.  That C/A said that the remedy is a habeas petition.  This C/A doesn’t discuss Chapman or Faustinos, agrees that the trial court has jurisdiction, but agrees with Hodge that a denial is not appealable.  The remedy of a habeas petition is not discussed.  Getting clearer?                                                                                                   

DMV HEARING OFFICER CAN INTRODUCE EVIDENCE AND ADJUDICATE IN APS HEARINGS

Romane v. DMV, D083569, 4/23/25, C/A 4th, Div. 1

In 2022, the C/A “ruled that the DMV’s policy of assigning a single employee to act as both the DMV’s advocate and the adjudicator in an APS [administrative per se] hearing violated due process” both federally and under the Cal. Constitution.  (Cal. DUI Lawyers Assoc. v. DMV, 77 CA5th 517.)  In 2024, the C/A “indicated the relevant issue to be determined in assessing a due process claim in this context is not the title applied to the DMV employee; it is the function actually performed by that employee during the APS hearing.”  (Knudsen, 101 CA5th 186.)  In this case, the C/A assures us that all the hearing officer did was introduce documents that the police sent to the DMV; the hearing officer wasn’t acting as an advocate.  “Accordingly, we conclude that where, as here, a hearing officer merely introduces the documents that law enforcement duly forwarded to the DMV, which are routinely admitted into evidence at APS hearings, the officer is merely collecting and developing evidence, not advocating for the DMV.”  I guess we’re just going to trust that there’s no problem when the prosecutor and the judge are the same person.                                      

SB1437: OK TO DENY RELIEF WHERE THE RECORD SHOWS NO GROUND FOR RELIEF                                  

People v. Glass, D084008, 4/22/25, C/A 4th, Div. 1

SB 1437 (codified in PC 1170.95, now renumbered 1172.6) allows a defendant to challenge a prior murder conviction when the defendant wasn’t the actual killer, didn’t aid in the killing, and wasn’t a “major participant” in the underlying felony, who acted with “reckless indifference to human life.”  Back in March, the Cal. Supremes said, “We hold that a petitioner who offers only conclusory allegations of entitlement to relief under section 1172.6, in response to a record of conviction that demonstrates the petitioner’s conviction was under a still‑valid theory, has not, thereby, made a prima facie showing.”  (Patton, 17 C5th 549.)  The record of conviction here includes the defendant’s plea where he admits that he was the actual shooter. On this record he loses.  However, the C/A sends the case back to the trial court to give the defense an opportunity to present additional facts that might suggest that he does have the right to relief.             

Cases for the week ending Friday, April 18, 2025

Al Menaster Audio of This Week's Cases, 4.18.25

NO CONFLICT WHEN CURRENT PD LACKS CONFIDENTIAL INFORMATION FROM PRIOR PD (Cain v. Superior Court; A170052; 4/11/25; C/A 1st, Div. 4)

In 1987, the Solano County Public Defender’s Office represented Melton, who was charged with murder.  Two juries hung and the case was dismissed.  DNA testing now exonerates Melton but inculpates Cain, who is now charged with the same murder.  Solano PD determined that there was no conflict, but the judge relieved the PD anyway.  The DPD who tried the Melton case (Foor) became a judge and is now retired.  Melton is dead.  Melton’s 1987 client file is lost.  There is a conflict in this situation when “there is a reasonable possibility that the individual attorney representing defendant either has obtained confidential information about the [former client] collected by his or her office, or may inadvertently acquire such information through file review, office conversation, or otherwise.” (Rhaburn, 140 CA4th 1566, 1581.)  The C/A finds no such possibility here, saying that the judge should “accept the representation of counsel, as an officer of the court, that he or she has not in fact come into possession of any confidential information acquired from the [former client] and will not seek to do so.” (Quoting Rhaburn, at p. 1581.)  The PD’s Office decided that it’s ethically barred from asking Foor what Melton told him.  The C/A agrees and rules that this also doesn’t trigger a conflict because Foor is barred from disclosing what Melton told him.  The C/A says, “[t]he duty of confidentiality continues so long as the lawyer possesses confidential client information, extending beyond the end of the representation and beyond the death of the client.”  The C/A reverses.

A FLARE GUN IS ONLY A FIREARM IF THERE IS EVIDENCE IT WAS DESIGNED TO BE USED AS A WEAPON. (People v. Gomez; H051210; 4/7/25; C/A 6th)

Is a flare gun a firearm?  The AG argues that it’s enough to show that the flare gun here had an intact frame or receiver and that it was designed to expel a projectile through the barrel using the force of an explosion or some other form of combustion, citing PC 16520.  The C/A says no.  The AG points to the testimony of a police officer here that the flare gun is a firearm “per the Penal Code.” The C/A says that’s not sufficient to prove that it’s a weapon either.  The C/A rules that the DA “was therefore required to show the flare gun was designed to be used as a weapon,” saying that “flare guns are designed for use by boat operators for emergency purposes.”  There was no evidence in this case that the flare gun here was designed to be used as a weapon, so the conviction for felon possessing a firearm (PC 29800(a)(1)) is reversed.


A PRISON SENTENCE OF 50 YEARS TO LIFE IS NOT THE FUNCTIONAL EQUIVALENT OF LWOP (People v. Munoz; B336656; 4/8/25; C/A 2nd, Div. 7)

PC 1170(d)(1) allows juveniles sentenced to life without parole (LWOP) to petition for resentencing.  In Heard (83 CA5th 608), the court held that to deny juvenile offenders sentenced to the functional equivalent of LWOP (FLWOP) the same opportunity violates equal protection.  (See also Sorto, 104 CA5th 435, and Bagsby, 106 CA5th 1040, agreeing with Heard.)  How long does a term have to be to qualify as FLWOP?   Heard involved a sentence of 103 years to life.  Sorto involved a sentence of 140 years to life.  In Contreras (4 C5th 349), in the context of an 8th Amendment challenge, the Cal. Supremes held that 50 years to life is FLWOP.  The defendant here was 15 years old when he was sentenced to 50 years to life. The C/A concludes that since the defendant will be eligible for parole when he is 65, this is not the equivalent of an FLWOP sentence, distinguishing Contreras as only being limited to the 8th Amendment issue.  There’s a vigorous dissent by Justice Feuer.  I think the chances that the Cal. Supremes will grant review in this case, and on this issue, are very high.  Because they were not included in the trial briefing, the majority refuses to consider studies relied on by the dissent showing that the life expectancy for prison inmates is often far less than 65 years.  This strongly suggests that the defense should include these studies, as well as any other evidence showing a reduced life expectancy, in its briefing in the trial court.

        
MURDER CONVICTION MUST BE REVERSED WHERE THE JURY WAS NEVER REQUIRED TO FIND MALICE (People v. Virgen; B333314; 4/7/25; C/A 2nd, Div. 8)

The defendant was convicted of murder on a theory that he conspired to assault the victim.  The jury was given CALCRIM 400, which told them that in some circumstances a defendant may be convicted of crimes other than the one he intended to commit, so long as the other crimes occurred during the commission of the first crime.  The jury was also instructed with CALCRIM 416, telling them that “[a] member of a conspiracy [is] criminally responsible for the acts or statements of any other member of the conspiracy done to help accomplish the goal of the conspiracy.”  The C/A realizes that the jury could have convicted the defendant of murder without ever finding that the defendant had malice.  “[T]he jury could have applied those instructions to find him guilty of murder simply because he conspired to assault Toledo, and Toledo’s murder occurred during the assault. In other words, Virgen argues that the jury could have imputed malice to him based solely on his participation in the uncharged conspiracy to assault Toledo. We agree.”  Citing PC 188(a)(3), enacted by SB 1437, the C/A says, “Now, to convict a defendant of murder under a theory other than felony murder, the People must prove that the defendant acted with malice aforethought.”  The C/A reverses.

  

Cases for the week ending Friday, April 11, 2025

Al Menaster Audio of This Week's Cases, 4.11.25

Cases for the week ending Friday, April 4, 2025

Alleging facts sufficient to show an RJA violation requires the appointment of counsel. (McIntosh v. Superior Court; D084379; 3/28/25; C/A 4th, Div. 1)

The petitioner filed a petition alleging a violation of the Racial Justice Act (RJA).  The petitioner made a motion for appointment of counsel.  The trial court denied that request on the ground that the petition failed to establish a prima facie showing for issuance of an order to show cause (OSC).  “We hold the plain language of section 1473(e) imposes a duty on trial courts to consider whether indigent petitioners who request counsel, like McIntosh, are entitled to appointed counsel based on an assessment of the adequacy of the factual allegations in the habeas petition, not an assessment of the overall sufficiency of the prima facie showing that must be met to obtain an OSC.” “The trial court here accordingly had a duty to assess McIntosh’s request for counsel that was distinct and independent of its duty to assess whether to issue an OSC.”  The C/A says that “the statutory language in section 1473(e) makes it clear that RJA habeas petitioners are entitled to the appointment of counsel based on an assessment of whether the habeas petition alleges facts that would establish a violation of the RJA.”  The C/A reverses the trial court’s order denying counsel, remanding for a hearing on the sufficiency of the petition.

The prosecution has no right to appeal the recall of of a sentence under AB 600. (People v. Griggs; C101953; 3/26/25; C/A 3rd)

Effective 1/1/24, AB 600 amended PC 1172.1 to allow a trial court, on its own motion, to recall a sentence and resentence a defendant when “applicable sentencing laws at the time of the original sentencing are subsequently changed by new statutory authority or case law.”  (PC 1172.1(a)(1).)  The judge here recalled the petitioner’s sentence and calendared the matter for a resentencing hearing. The DA appealed. The C/A rules that the judge’s order recalling the sentence is not an appealable order.  The outcome of the resentencing might result in an appealable order, but all that has happened so far is that the sentence has been recalled.  The prosecution's right to appeal is very limited.  The DA here argues that the recall of the petitioner’s sentence qualifies as “[a]n order made after judgment, affecting the substantial rights of the people.”  Such orders are appealable under PC 1238 (a)(5).  But the C/A notes that no actual new sentence has been imposed, so the order recalling the sentence cannot qualify as an order after the judgment.

Kellett does not ban serial prosecutions when the two offenses do not overlap. (In re J.D.; B338111; 3/25/25; C/A 2nd, Div. 6)

This is a juvenile case involving a Kellett (63 C2d 822) issue.  Kellett says that when “the prosecution is or should be aware of more than one offense in which the same act or course of conduct plays a significant part, all such offenses must be prosecuted in a single proceeding unless joinder is prohibited or severance permitted for good cause. Failure to unite all such offenses will result in a bar to subsequent prosecution of any offense omitted if the initial proceedings culminate in either acquittal or conviction and sentence.”  (Kellett, p. 827.) The crucial test is whether “the same act or course of conduct play[ed] a significant part” in the two prosecutions.  (Valli, 187 CA4th 786, 797.)  In March of 2023, the minor was at a mall. She stole Mia’s cell phone.   3 hours later, she also assaulted Priscilla and and stole her cell phone. In July of 2023, the DA filed charges for the theft of Mia’s cell. The minor admitted the petition. In March of 2024, the DA filed felony assault charges for the assault on Priscilla.  Of course, Justice Yegan finds that Kellett does not bar the second prosecution.  “Here, the record reflects that appellant’s crimes were committed at different locations within the mall structure, at different times, and against different victims. There is no overlap here.”  Really?  No course of conduct?  You mean in the new case evidence about the old case is not going to be presented?  Give me a break.

An enhancement for a prior that is stricken is not imposed. (People v. Tang, D084192; 3/18/25; C/A 4th, Div. 1.) 

SB 483, effective 1/1/22, made the elimination of 1-year prison priors (PC 667.5(b)) fully retroactive.  (PC 1172.75, formerly numbered 1171.1.)  SB 483 provides that when a court determines that an individual is serving a judgment where one or more of the now-invalid priors were “imposed,” that sentence must be recalled and the invalid prior(s) stricken.  Are stayed prison priors imposed?  There are 6 cases on this topic, with a clear split. The Cal. Supremes have been granting review on them. The nuance here is that the prior was stayed, but on appeal the C/A required the prior to be stricken.  Does this stayed but then stricken prior qualify? The C/A says no.  “It would be anomalous to conclude that an enhancement was both imposed by and stricken from the judgment.”  The C/A says, “We address only whether a stricken enhancement can be an enhancement imposed within the meaning of section 1172.75 and conclude it cannot.”  Laura Arnold is appellate counsel.