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

SB1437 (Felony-Murder) Constitutional or Not!

 Across the state there has been a battle over the constitutionality of SB 1437.  The bill became law on January 1, and it eliminates the possibility of charging people with first degree murder in criminal actions that resulted in death, but whose actions did not constitute actual or major participation in the act of killing the individual.

The new law was specifically intended to be retroactive, meaning people convicted under a felony-to-murder theory could apply for resentencing.  But prosecutors, for obvious reasons, have opposed it and have filed challenges to its constitutionality.

Some Judges struck down the SB1437 Petition (for re-sentencing) as “unconstitutional,” because the re-sentencing provision of section 1170.95, SB 1437 explicitly takes away from the punitive consequences of persons sentenced under the provisions of Proposition 7. NOTE: California Proposition 7, or the Death Penalty Act, was on the November 7, 1978 statewide ballot in California as and it was approved. Proposition 7: increased the penalties for first and second degree murder. Other arguments were made about SB1437 also violating the existing Proposition 115, of 1990 - known as the Crime Victims Reform Act

Given the separate ruling of all the different Judges at the Superior Court (in different CA Counties) it is predictable that at some point a higher court is going to have to be the authority and these SB1437 (Constitutional/unconstitutional) cases are starting to move up the higher Court system.

Significantly, in the recent July 2019 case of Harvest Cyle Davidson v. Superior Court of El Dorado County, the AG’s Office, a real party in interest argues, “Senate Bill 1437 is Constitutional.”

Here they [AG]  argue, that Prop 7, set the penalties for murder, not the elements of the crime. This is of course the position that all criminal defense attorneys would argue when filing the SB1437 (resentencing petition) when confronted by the DA’s office that the law is unconstitutional, never getting a chance to go to the Merits of the client’s case.

Furthermore the AG argued that Prop. 115, is not violated either because Prop, 115 only “added to the list of predicate crimes supporting a charge of first degree felony murder and the punishments for felony first degree murder.”

For example Prop. 115, amended  PC 189 to “add kidnapping, train wrecking, and various sex offenses to the list of felonies supporting a first degree murder charge.”  It also “amended section 190.2 to require a sentence of death or life without the possibility of parole in two situations where the defendant is not the actual killer.”

The two provisions are;
1) “the defendant aids or supports a killer and acts with the intent to kill.” 
2) “the defendant is a major participant in certain crimes, such as robbery, where a death occurs, and acts with reckless indifference to human life.”

Looking at the new January 2019 law, [SB 1437] only “changed the culpability required to convict for felony-murder and the ‘natural and probable consequences’ doctrine.”

The felony-murder rule, as it existed before 2019, made “a killing while committing certain felonies murder without the necessity of further examining the defendant’s mental state.” - an easy standard for the DA to get a Murder conviction - for example for non-killer co-defendant of a felony crime.

In addition, some courts in their ruling defensively pointed out that the “natural and probable consequences” doctrine, as it existed before 2019, made “a person who aids and abets a confederate in the commission of a criminal act . . . liable not only for that crime (the target crime), but also for any other offense (nontarget crime)”—including murder—“committed by the confederate as a ‘natural and probable consequence’ of the crime originally aided and abetted.”

In passing SB 1437 in 2018, the legislature and government pointed out that “[r]eform is needed in California to limit convictions and subsequent sentencing so that the law of California fairly addresses the culpability of the individual.”

Significantly, the new law was designed “to ensure that murder liability is not imposed on a person who is not the actual killer, did not act with the intent to kill, or was not a major participant in the underlying felony who acted with reckless disregard for human life.”

The AG therefore notes that this “narrows the felony murder rule” as well as the “natural and probable consequences” doctrine.

They can only be used when the participant in the underlying felony “is the actual killer” or “is not the actual killer but, with intent to kill, aids or abets a first degree murder” or “is a major participant in the underlying felony and acts with reckless indifference to human life.”

As such, the AG Office argues that SB 1437 does not amend Prop. 7.  They argue instead, “S.B. 1437 changed the elements that must be proven to convict for the crime of murder, not the penalties upon conviction.”

Further, they argue that SB 1437 “did not restrict the Legislature’s authority to change the culpability requirement to convict for murder.”  Therefore, in their opinion, “S.B. 1437 thus did not amend Proposition 115.”

The most crucial point of this El Dorado County case is that the AG accepts SB 1437 as constitutional and goes up against the DA’s position of most counties.

 STAY TUNE for more…

It seems unlikely   that there will be any Published Appellate Opinions by November 2019, though perhaps not impossible!

Friday, June 28, 2019

SEVENTH ANNUAL Lifer BBQ find YOUR LIFER or ATTORNEY

 



LIFER BBQ at City Buena Park - Fun had by ALL again!

The Seventh annual lifer picnic Hosted by Gary “Red” Eccher and Attorney Keith Chandler [ECCHER CONSULTING COMPANY (ECC)] grows every year, with the typical grilled hot dog, BBQ style. We had additional food items ranging from pizza to fried chicken; delivered fresh and hot throughout through the day.  The meals were well rounded with veggies, fruits (sweet)! We had great 75ish  degree weather with a cool breezes in the typical Southern Sunny California day. It appears that over 400 people gathered thorough the day at Buena Park from Noon to 6 pm. We added the usual LIFER Group picture (see below) taken on or about  3pm that afternoon.


Gary "Red" Eccher, Diane "Renegade Attorney" Letarte, Keith Chandler, Esq.

A BIG THANKS !!!!!!

to everyone that pitched in to help GARY & KEITH for this GREAT yearly summer BBQ.







 FIND YOUR LIFER - 

THE  3PM GROUP PHOTOS








 A BIG THANK YOU FOR ALL THAT PARTICIPATED AND TO ECC FOR ALL THEIR GENEROUS TIME AND EFFORT FOR ORGANIZING THIS ANNUAL LIFER EVENT!

 

Great friends re-united and a Warm Welcome given to Richard Shaputis  by "Doc" Miller, the CLN (newsletter) founder.

 

Renegade Attorney "incognito" on her Client's new Harley

  

 

Keith Chandler, esq.  with Attorney Fox and Letarte, her Legal assistant Yolanda Navarro, along with Attorney Letarte's released clients. 

 

 

Yolanda Navarro, Legal Assistant with David Garnica ARC

Attorneys Diane Letarte and Marc Norton at ECC BBQ
Yolanda Navarro (middle), the friendly voice of our Law Office
Attorney Letarte with released Client
Attorney Letarte with released Client & his wife
Staff having FUN at the BBQ
Let's not FORGET Vanessa Neilsen-Sloane from LSA who is such a strong Advocate for the Lifers. 
( Lifer Support Alliance - LSA)

Tuesday, April 2, 2019

SB 1437: 100s of inmates stuck in CA prison while DA try to block the new law

 We are reposting a great Article by Jessica Pishko of the Appeal.org

Many thanks to this author for "summing up" the debate that is going on in all counties of California by the DAs and the Criminal Defense bar, including the strong arm of the Public Defenders. SB 1437 legal debate is going on in all counties and cases are going up to the Higher Courts. 

It appears that the Judges are ruling independently but are staying in "lockstep" with Unconstitutionality arguments of this new law.  A few counties are getting some favorable decision (for inmates) but these battles will need to be resolved in the higher courts and most likely up to the California Supreme Court.

 =================================

Hundreds Stuck in California Prisons as Prosecutors Seek to Block New Law

Senate Bill 1437 virtually eliminated the ‘felony-murder rule,’ but district attorneys aren’t ready to let it go.

One April night in 1994, 18-year-old Michael Tirpak picked up his friend, 17-year old Darrell, and two other teens who were brothers, Juan and Alex. They went to a party, but were asked to leave when Juan, 16, who was high on PCP, became disruptive. Tirpak planned to drop Juan and Alex at home before returning to the party.
On the way to their house, Tirpak pulled the car over and ran to a pay phone down the block. While he was on a call, Juan “went crazy,” according to his brother Alex, pulled out a gun, and, in the course of an attempted robbery, shot a man coming out of a nearby liquor store. Tirpak, who later said he sensed something was wrong but was unsure of what had happened, returned to the car, and Juan waved the gun at everyone. “Take me straight home now [or] I’ll shoot everybody in this fucking car,” Juan said, according to court documents.
All four teens were arrested and indicted, but only Tirpak’s case went to trial, where he was found guilty of aiding and abetting a felony murder despite his limited involvement.
Although prosecutors argued that Tirpak helped look for a target, he has consistently denied that, saying he was unaware of Juan’s intentions. The trial court found that he did not know anyone had been shot, never handled the weapon, approached the victim, or did anything directly associated with the crime. His conviction was based in part on the testimony of Juan, who pointed the finger at Tirpak to deflect blame from himself. Alex pleaded guilty and later, in a motion for a new trial, testified that Tirpak “never knew what was going on.
Tirpak was sentenced to life without parole because the jury made a “special circumstance finding,” meaning it found evidence the murder happened in the course of a robbery where at least one defendant was armed. The other teens all took plea offers and have been out of custody for years.
In 2015, Tirpak was resentenced to 25 years to life after the Loyola Project for the Innocent took on his case. Even District Attorney Jackie Lacey agreed in a written brief that Tirpak “did not demonstrate reckless indifference to human life” and was entitled to resentencing.
And last year brought an even more promising development for Tirpak. California lawmakers passed Senate Bill 1437, which effectively eliminated the so-called felony-murder rule that was used to convict Tirpak of murder. Under this doctrine, criminal defendants could be held responsible for the deaths of victims that occurred in the course of another crime, usually robbery, even if that particular defendant didn’t participate in the actual killing or was unarmed.
Critics had argued for years that the doctrine gave prosecutors a powerful bargaining chip to persuade defendants to agree to plea bargains, even when, as in Tirpak’s case, they may have been auxiliary to the crime with no intent to do harm. The new legislation, which went into effect in January, was specifically intended to be retroactive, meaning people convicted under a felony-murder theory could apply for resentencing.
Given Lacey’s earlier support for Tirpak’s resentencing, his lawyers had hoped she would support Tirpak’s motion for release. But Lacey opposed it. Her office argued in a brief that SB 1437 was unconstitutional because it “violates the separation of powers” by allowing the legislature to reopen cases already decided by the courts and giving courts pardoning power meant to be held only by the governor.” (Lacey’s office did not respond to a request for comment.)
Any time a DA in a particular county resists the Legislature, I think it does call into question their role in our system.Kate Chatfield, Re:store Justice
She’s not alone in her opposition. District attorneys across the state sought to influence the Legislature through the California District Attorneys Association and now that the law has passed, they are filing court motions arguing that it is unconstitutional. In at least one county, Orange, the constitutional challenge was granted by the trial court, meaning that it will move to the appellate courts and possibly the California Supreme Court. This could delay the resentencing process by months or years for many of the hundreds of prisoners waiting to file their motions.
Why would a prosecutor, whose job is to enforce the law, stand in the way of approved legislation? Advocates say the fight over SB 1437 shows the power DAs have in the political process and the ways they can wield it, both by opposing legislation and by clogging the courts with lawsuits and motions that serve to delay reform.
“Any time a DA in a particular county resists the Legislature, I think it does call into question their role in our system,” said Kate Chatfield, an attorney with Re:store Justice, a group advocating reform of California’s criminal laws, who also teaches at the University of San Francisco Law School. “It definitely slows the process down.” And some of those people, like Tirpak, have waited more than two decades for this change.

The felony-murder rule has long been under scrutiny as courts reassessed the impact of harsh criminal sentencing laws that became popular in the 1980s and ’90s. Those policies, such as California’s three-strikes law, led directly to the overcrowding of prisons and to conditions so unconstitutional that the U.S. Supreme Court ruled in 2011 that the state had to reduce its prison population.
Since then, California has slowly been unwinding some of the harsher sentencing laws with great success. A 2018 report from The Sentencing Project found that California had successfully decreased its prison population while retaining historically low crime figures.
SB 1437 amended California’s felony-murder rule to eliminate its use in most cases where someone with no intent to kill is charged with murder. Prosecutors must now prove malice to charge these people with murder.
Yet district attorneys are still working to block the law. Forty-two district attorneys from across the state signed a Sept. 2, 2018 letter to then-Governor Jerry Brown objecting to the new law, arguing that it “goes too far” and “will allow everyone convicted of murder … to petition to have their convictions vacated.”
It was not just DAs from the typically Republican-leaning Central Valley who opposed reform. Elected prosecutors  such as Nancy O’Malley in Alameda County and Jeff Rosen in San Jose also opposed the law, even though both prosecutors have called themselves reformers.
Lacey opposed SB 1437 from the beginning and told a local TV news anchor that “at least half of” the people resentenced under the change would be “part of a violent street gang.” She also opposed last years’ bail reform legislation (although says she supports bail reform generally)  and was against Proposition 47, a voter initiative that reduced some felonies to misdemeanors.
Lacey defended her stance on SB 1437 in a letter to the Los Angeles Times, writing, “I support criminal justice reform that does not jeopardize our safety.”

District attorneys in California have tried to block change before. In 2016, Prop 57 was on the ballot for the general election. Proposed by then-Gov. Jerry Brown, it would allow all people convicted of nonviolent felonies to seek parole after serving their minimum sentences and require transfer hearings before juveniles could be tried as adults. The California District Attorneys Association filed a lawsuit to oppose it. Despite the attempt to remove Prop 57 from the ballot, it passed decisively with 60 percent of the vote.
Now, the association opposes a law that extends Prop 57 by preventing the prosecution of 14- and 15-year-olds in adult court. 
“Some prosecutors have manufactured a controversy by challenging, rather than enforcing, the law,” wrote Erwin Chemerinsky, dean of the University of California, Berkeley, School of Law. “They’re substituting their own policy preferences—and the preservation of their own power—for the democratic process. It’s a cynical move with no legal basis.” Prosecutors continue to formally oppose the measure in court and advocate against it.
When it comes to SB 1437, fewer than a dozen petitions for resentencing have been heard statewide, and the vast majority have been granted. As in a criminal trial or parole hearing, prosecutors represent the state and provide their version of the alleged crime and weigh in on the petitioner’s suitability for release. (In SB 1437 hearings, the burden is on the prosecutors to prove that the defendants had intent to kill.)
Some prosecutors have manufactured a controversy by challenging, rather than enforcing, the law.Erwin Chemerinsky, University of California, Berkeley, School of Law
In some cases, district attorneys have supported the petitions, on the grounds that it’s both fair and fiscally wise to support the petitions and release prisoners who in many cases have already served decades. Some DAs have opted to oppose almost all petitions, but it’s not always clear why California prosecutors are supporting certain petitions but not others.
Take the case of Tara Williams, who served almost 25 years in prison. In 1993, Williams was the driver when two friends went inside a liquor store and shot the owner in the course of a robbery. (The theft netted only $6 and food stamps.)
Williams was charged with murder under the felony-murder rule and sentenced to life in prison without parole. (The actual shooter took a plea and was released after about three years.) Williams was granted release through an SB 1437 petition, which was not opposed by Lacey, and left prison in February.

It remains to be seen how prosecutors and judges will deal with these cases. A case in San Diego County, where District Attorney Summer Stephan has opposed SB 1437, may set the tone for a coming battle in the California Supreme Court.
In April 2014, Kurese Bell, then 17, went with his older friend Marlon Thomas to rob two marijuana dispensaries in San Diego. During the second robbery, an armed security guard surprised the pair. A gunfight ensued and ended with Thomas’s death at the hands of the guard. Bell was charged with first-degree murder as an adult for his part in the crime that led to his friend’s death.
The San Diego DA’s office, then under the direction of Bonnie Dumanis, took a hard line in the case. She used a little-known 50-year-old legal doctrine called the “provocative act” theory to charge Bell with his friend’s death.
Under this theory, Bell was held responsible for murder, and he faced multiple life sentences. Stacked with gang and gun enhancements allowed under California law, Bell was sentenced to a 65-years-to-life term. Even though Bell was a juvenile at the time of the crime and arguably could have been tried in juvenile court, Stephan’s office vigorously opposed a juvenile sentence.
But now, Bell may have a second chance under SB 1437, which allowed his attorneys to argue that he did not actively participate in the events leading to his friend’s death (even if he may have participated in the robbery scheme).
Advocates say the DAs are out of step with their communities, which overwhelmingly support reform.
Stephan’s office has not responded to Bell’s motion. If she invokes the same constitutional challenge that DAs in Los Angeles and Orange County have filed, Bell’s case may also need to wait for the state Supreme Court to settle the controversy.
Advocates say the DAs are out of step with their communities, which overwhelmingly support reform. Lacey has been a particular disappointment to reformers.
“There is finally widespread support across the political spectrum for changing the criminal-justice system in meaningful ways,” Black Lives Matter co-founder Patrisse Cullors wrote in a recent L.A. Times op-ed. “Now we just need key public officials, including Lacey, to get on board.”
Lacey ultimately conceded that Michael Tirpak was entitled to relief. This year, a Los Angeles judge denied Lacey’s constitutional challenge to SB 1437, forcing Lacey’s office to stand by its prior statement that Tirpak was not responsible for the murder. Tirpak was finally released in February 2019 after serving 25 years in prison.

Correction: This story has been corrected to note that the law that would extend Prop 57 does not include carve outs for murder or other offenses.

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Thursday, March 14, 2019

SB 1437 Felony Murder rule heavily contested - as anticipated

 As a refresher on SB1437 -->

On 8/31/2018 inmates' families  (and all the advocates for the Bill) can claim a big victory (for  Lifers incarcerated via the old CA Felony Murder rule) --- as Senate Bill 1437 went to the Governor's desk for signature. Remember: The felony-murder rule is an exception to the normal rules of California murder law. Generally, you cannot be convicted of murder in California unless you acted with "malice aforethought" - which basically means intent to kill, or a reckless disregard for human life.

The SB1437 became effective January 1, 2019 and 100's of petition were filed in all CA Counties in all different Courts by pro-per, Public Defenders, and private attorneys to assist inmates.

As anticipated the District Attorneys from different Counties came out swinging to oppose this new law - challenging its Constitutionality! Orange County, LA County and San Diego County have vouch to oppose these SB1437 resentencing petitions.

So far one judge did "bite" at the OC DA's argument that SB1437 is unconstitutional as it is reported below in italic. Keep in mind that this decision is a single Superior Court Judge, so it cannot be used as authority in another case.  There is no doubt that this decision will be tested in higher courts.  The FUN question is: Which side will be represented by the Attorney General?  Both the People and the Legislature qualify for representation by the AG.  To Be Determined?

======================== Judge Gregg L. Prickett ========================

On Friday, Feb. 8, 2019, during a hearing in the People v. Dejon Griffin and Aaron Jackson case, Orange County Superior Court Judge Gregg L. Prickett heard arguments on the constitutionality of Senate Bill (SB) 1437, given that it lacks the two-thirds super majority of both bodies of the California Legislature.

The Court found the Legislature was not free to enact SB 1437 except under the parameters of Article II, Section 10 for amending Proposition 7, or by the supermajority requirement of Proposition 115. This legislation was not enacted by either procedure and hence is invalid, therefore the Court declined to enforce SB 1437. 

Additionally, SB 1437 was ruled unconstitutional because it imposed the same requirement for aiders and abettors for murder as the death eligible special circumstance.

Senior Deputy District Attorney Troy Pino of the Homicide Unit is prosecuting this case. Deputy District Attorney Seton Hunt handled the motion. To read the entire People’s Brief on Whether SB 1437 is Constitutional and Judge Prickett’s Ruling on the Constitutionality of the Enactment of SB 1437, 

You can visit www.orangecountyda.org and select Reports under the Reports pull-down menu.
This article was released by the Orange County District Attorney’s Office.

==============================================================

 Our law office has filed SB1437 Petitions for our clients in both Riverside County and Orange County - we are still waiting the Courts' responses.

Stay Tunes-- exciting times !!!


Friday, February 15, 2019

Youth Offender Parole Hearing - How do I get one?

The has been many different youth offender laws in the last 4-5 years, it is hard to keep track of them. Our law office continues to get phone calls about HOW do they bring their loved one to the Parole Board (for the Youth offender hearing) once they received their CDC-128 chrono with the YPED (Youth Parole Eligible Date) date. Sometime the date is in the past and sometime in the future.

As of January 1, 2018, Youth Offenders were augmented to include the Youth Offender that were under the age of 26 years old, on the day of the crime, NOT the conviction day. If you think your loved one is a Youth Offender and need an experienced attorney please contact ATTORNEY DIANE LETARTE @  619-233-3688 or via her Website

GETTING THE YOUTH OFFENDER HEARING: There is not action needed on the part of the inmate to be scheduled for his youth offender parole hearing, CDCR and BPH working together will schedule him/her at the appropriate time, UNLESS there is an obvious error in the date calculation.

If the Inmate feels his Sentence, MEPD, YPED or anything is incorrect (has an error), he has the options of submitting Appeals (CDCR 602’s) or Form 22’s – to Records and CDCR will answer any questions he may have about his term or MEPD. It is also noted that upon requesting a “Haygood Hearing”  - Haygood vs. Younger in his appeal, he will have a Supervisor come out and interview him to explain all issues of his appeal.

Be mindful that those YPED dates are NOT release date, the dates are a point in time when the inmate will be eligible to attend a Parole Suitability Hearing for a chance to be released to the free community. In looking at the logistics of scheduling 1000's of parole hearing the Board of Parole Hearings was given a certain time frame by the Youthful offender Laws. It is time consuming to schedule throughout the 35 State Prison, be patient, the inmate will get a NOTICE several months ahead of the Youth Offender Parole Hearing.

 In order to assist with this maze of dates see the EXCERPT from the BPH website below.  BPH YOUTH OFFENDER WEBSITE

 

Timing of a Youth Offender Hearing

Youth offenders sentenced to a fixed, determinate term are eligible for a parole hearing during their 15th year of incarceration unless previously released. Youth offenders sentenced to life with the possibility of parole (also called an indeterminate term) and who received a life term of less than 25 years-to-life are eligible for a parole hearing during their 20th year of incarceration unless previously released or entitled to an earlier hearing. Indeterminately sentenced inmates who received a life term of 25 years-to-life or longer are eligible for a parole hearing during the 25th year of incarceration unless previously released or entitled to an earlier hearing. And inmates who were under the age of 18 when they committed their controlling offense and who were sentenced to life without the possibility of parole are eligible for a parole hearing during the 25th year of incarceration.

Youth offenders who became eligible for a youth offender hearing when the youth offender laws were enacted may not have a hearing until the end of 2019 or 2021, depending on their original sentence. Specifically, the board is required, by January 1, 2020, to complete all youth offender parole hearings for inmates sentenced to life with possibility of parole who became eligible for a youth offender hearing on January 1, 2018 (when Assembly Bill 1308 went into effect). And the board must complete, by December 31, 2021, all youth offender parole hearings for inmates sentenced to fixed or determinate sentences who became eligible for a youth offender hearing on January 1, 2016 (when Senate Bill 261 went into effect) or on January 1, 2018 (when Assembly Bill 1308 went into effect).

Editor's NOTE-- (DSL) Determinately sentenced inmates who are scheduled to be released before December 31, 2021, will not receive a youth offender hearing, because they will automatically be released based on their determinate sentence. BPH does not have the resource to provide a parole hearing for those inmates that will be released no matter what, within 2 years or so.

Youth offenders sentenced to life without the possibility of parole who were under the age of 18 when they committed their controlling offense, and who became eligible for a youth offender hearing before July 1, 2020 as a result of Senate Bill 394, will receive a parole hearing by July 1, 2020.

Factors considered at a Youth Offender Parole Hearing (YOPH)

The board is required at youth offender hearings to give great weight to factors specific to youth offenders. For example, the board is required to give great weight to the diminished culpability of juveniles as compared to adults, the hallmark features of youth, and any subsequent growth and increased maturity of the inmate. Moreover, if the hearing panel relies on a risk assessment in assessing a youth offender's growth and maturity, the risk assessment must also take into consideration these factors.

Editor's NOTE -- BPH is working on releasing the OVERDUE new Youth Offender Regulations, which will be under Title 15 Ca. Code of Regulations 2440-2446  (15 CCR 2440-2446). The regulations enumerate approximately 20 youthful factors to look for when showing Growth and Maturity, among other factors. These should be published very shortly and will start being used by the Commissioners at the Youth Offender Parole Hearings. We hope these factors will helps in defing the "great weight" factors that juveniles are suppose to be given at their YOPH.

This is in addition to the suitability factors the Board must consider at regular, non-youth offender parole hearings, defined under 15 CCR 2402 - Determination of Suitability.