Wednesday, November 20, 2019

SB1437: GOODEN and LAMOUREUX Court finds SB1437 Constitutional in the COA 4th, Div 1

            In 2018, the Legislature passed and the Governor signed into law Senate Bill No. 1437 (Senate Bill 1437), legislation that prospectively amended the mens rea requirements for the offense of murder and restricted the circumstances under which a person can be liable for murder under the felony-murder rule or the natural and probable consequences doctrine.   Senate Bill 1437 also established a procedure permitting certain qualifying persons who were previously convicted of felony murder or murder under the natural and probable consequences (NPC) doctrine to petition the courts that sentenced them to vacate their murder convictions and obtain re-sentencing on any remaining counts.  
EDITORS OPINION: Two cases were recently heard for oral argument in the Court of Appeal 4th Dist., Div 1, on whether the new SB1437 law was Constitutional which would allow petitioners to go forward with their petition to be re-sentenced (on the merits of their case) at the trial court level. These two cases (below) are great for the defendants and inmates, but we must keep in mind that the DAs now have 10 days within which to seek review by the CA Supreme Court.  If the Supreme Court grants review, your attorney cannot cite those cases (for the inmate) until  the review is completed. 

Please note that  ---> The foregoing cases were in Court of Appeal 4th Dist., Div 1, which includes certain county such as San Diego, Riverside, etc. but not the Counties under the Court of Appeal 4th Dist., Div 3 (CA4-3) , such as Orange County,  arguably those trial courts are not bound by these recent two decisions, but it is certainly persuasive. NOTE: There are also CA4-3 appeals pending, so time will tell.
      The Petitioner, Patty Ann Lamoureux appealed an order denying her petition to vacate a first degree murder conviction and obtain re-sentencing under the procedures established by Senate Bill 1437.  The trial court denied the petition after concluding the re-sentencing provision of Senate Bill 1437 was basically UNCONSTITUTIONAL basically agreeing with several reasons put forth by the District Attorney's office. In short SB1437:

The People urge us to affirm the denial order on (4) grounds that: 
  (1) Senate Bill 1437 invalidly amended Proposition 7; 
  (2) Senate Bill 1437 invalidly amended Proposition 115, a voter initiative that augmented the list of predicate offenses for first degree felony-murder liability (Prop. 115, as approved by voters, Primary Elec. (June 5, 1990) (Proposition 115)); 
  (3) the re-sentencing provision violates the separation of powers doctrine; and/or 
  (4) the re-sentencing provision deprives crime victims the rights afforded them by the Victims' Bill of Rights Act of 2008, commonly known as Marsy's Law (Prop. 9, as approved by voters, Gen. Elec. (Nov. 4, 2008) (Proposition 9)).

Excerpt and short answer to the issues: 
(1) The COA court explained in the Gooden decision, Senate Bill 1437 did not amend Proposition 7 because it did not "address the same subject matter [as Proposition 7].  
(2) Furthermore  Senate Bill 1437 "did not augment or restrict the list of predicate felonies on which felony murder may be based, which [was] the pertinent subject matter of Proposition 115."  (Id. at p. __ [p. 22].)  On this basis, we determined Senate Bill 1437 did not amend Proposition.

See full discussion on these 2 issues in the Gooden decision, thus the court concluded Senate Bill 1437 did not invalidly amend Proposition 7 or Proposition 115.

(3, 4) Lastly, In addressing the Separation of Power the court concludes --> In accordance with the Younger and Way decisions, it is clear to us that section 1170.95's interference with the executive's clemency authority, if any, is merely incidental to the main legislative purpose of Senate Bill 1437.  Therefore, we conclude section 1170.95 does not impermissibly encroach upon the core functions of the executive. 

    A companion case, was Allen Gooden, in this case the People (DA) was the Petitioner in stating that the trial court erred in not finding SB 1437 unconstitutional (in simple terms). The trial court rejected the People's argument and denied the motions to dismiss.  The People filed petitions for writs of mandate and/or prohibition in the COA court, asking to direct the trial court to vacate its order denying the motions to dismiss and enter a new order granting the DA's motions.

Here (in short), the Court of Appeal (COA), like the trial court, concluded Senate Bill 1437 was not an invalid amendment to Proposition 7 or Proposition 115 because it neither added to, nor took away from, the initiatives. The COA, therefore, denied the People's (DA) petitions for writ relief finding that SB 1437 was Constitutional and affirmed the lower trial court.

Finally,  It is the opinion of this Editor that someone will ask the CA Supreme Ct.  to Review these cases or other similarly situated, because the issue is so important, and likely to recur.   Right now, it is prudent to wait and see what happens in other higher Courts, and potentially the CA Supreme.

Monday, September 30, 2019

In re BOLTON (9/30/19) - Can an incarcerated excessive DSL Youth offender get disqualified from Parole Provision after a new prison conviction?

     This case comes from a multiple round of briefing from the Superior Court to - the Court of Appeal - to the California Supreme Court (En Banc) and returnable to the Court of Appeal - Third Appellate District. The Law office of Diane Letarte and staff worked long hours riding the roller Coaster for 4 years on this case with a potential Oral Argument set in February 2019, which was then cancel because the court was prepared to render a decision without hearing oral argument.  Sometimes less said  is best!

      The Secretary of the Department of Corrections and Rehabilitation is ordered to show cause, returnable before the Court of Appeal, Third Appellate District, when the matter is ordered on calendar, why the relief prayed for should not be granted.

Court of Appeal, Third Appellate District 

  ***Certified for Publication***



      What happens when a prisoner serving a sentence for crimes committed as a juvenile exceed his natural lifespan is later convicted of an offense which disqualifies him from the youth offender parole provisions of Penal Code section 3051?

    The Lassen County Superior Court is directed to vacate petitioner’s 91-year state prison term for his juvenile offenses and to hold a sentencing hearing on his juvenile and adult convictions consistent with this Court of Appeal Third Appellate District's opinion.

     Petitioner was convicted in Contra Costa County of five counts of rape, two counts of unlawful penetration with a foreign object, two counts of forcible lewd and lascivious conduct on a child, two counts of false imprisonment, one count of attempted rape, and one count of assault with a deadly weapon, along with multiple enhancements for being armed with and using a knife and pellet pistol.  He was sentenced to 92 years in state prison, which was modified to 91 years on appeal.    

     While serving a 91-year term for crimes committed when he was 16, petitioner D’Arsey Lawrence Bolton was sentenced under the three strikes law to 25 years to life for a crime committed in prison at the age of 30.

    In this habeas proceeding, petitioner asserts his sentence violates the cruel and unusual punishment prohibition of the Eighth Amendment and asks us to order the Lassen County Superior Court to resentence him on all of his convictions consistent with the possibility of release in his lifetime, or to find he is not ineligible for youth offender parole.

     We find that resentencing on the juvenile offenses is necessary, but petitioner’s adult sentence does not violate the Eighth Amendment.  We shall vacate the 91-year term for the crimes committed as a juvenile and remand for resentencing.

     Since petitioner has never been sentenced by a court that had the advantage of the Eighth Amendment cases discussed in this opinion, the better approach is to wait until he is sentenced by such a court before determining novel and important constitutional issues related to his sentence.  Accordingly, while the trial court must take the 25-year-to-life term for petitioner’s adult conviction into account when resentencing on the juvenile offenses, we take no position on whether the total sentence for both the adult and juvenile convictions must include a meaningful opportunity for parole as defined in Miller, Graham, Caballero, or Contreras.  Likewise, if the trial court determines petitioner’s total term must include a meaningful opportunity for parole, we leave it to the trial court to make the initial determination regarding what sentence satisfies this requirement, and the effect, if any, on the availability of elderly parole.

     The Supreme Court did not mandate a particular term that the defendants were to receive on remand in Contreras and Caballero.  (See Contreras,supra, 4 Cal.5th at p. 381 [declining to provide additional guidance for trial court on remand]; Caballero,supra, 55 Cal.4th at p. 269 [“Because every case will be different, we will not provide trial courts with a precise timeframe for setting these future parole hearings in a nonhomicide case.  However, the sentence must not violate the defendant’s Eighth Amendment rights and must provide him or her a ‘meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation’ under Graham's mandate”].)

     The Lassen County Superior Court is directed to vacate petitioner’s 91-year state prison term for his juvenile offenses and to hold a sentencing hearing on his juvenile and adult convictions consistent with this Court of Appeal Third Appellate District's opinion.

Wednesday, August 7, 2019

Vacation - JULY - more to come

Our law office will not be posting a JULY Blog because we have been super busy.
Our fingers also needed a little rest from being an Editor beside being the Lead Attorney at our law office.

Please see out August BLOG on SB1437