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?

PROCEDURAL ASPECT:
     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!

CA SUPREME COURT (OSC):
      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***

FULL OPINION at: https://appellatecases.courtinfo.ca.gov/search/case/mainCaseScreen.cfm?dist=3&doc_id=2277568&doc_no=C088774&request_token=NiIwLSIkTkw2W0BNSCI9WEhIIFg6UTxbKyBeWz1SMCAgCg%3D%3D  


SHORT EXCERPT BELOW:

UNADDRESSED ISSUE:  
      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?

SHORT ANSWER--> DISPOSITION
    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.

FACTS:
     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.


COURT on 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

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!