Thursday, January 16, 2020

SB1437: UPDATE to GOODEN and LAMOUREUX Cases are going up to the CA SUPREME

QUICK UPDATE on SB1437 since December BLOG post:

We know there were two published cases that opined that SB1437 is Constitutional as stated in our November  BLOG. We also know that both were Published by the Court of Appeal, Fourth District, Division One: People v. Lamoureux (D075794) and People v. Superior Court  (Gooden/Dominguez) (D75787 and D75790).

As we anticipated from our last month Blog:
 We believed that  People v. Lamoureux  and People v. Superior Court  (Gooden/Dominguez) would be petitioned to the California Supreme Court.


Well.. YES, A petition for review was filed in Gooden on December 19, 2019 and a petition for review in Lamoureux was filed on December 26, 2019 to the California Supreme Court.  I assume Review will be granted by the California Supreme Court on these cases in early 2020. 

Still up to date we believe that the Orange County Superior Courts have, so far, adopted the position that SB 1437 is unconstitutional.  We are now keeping our eyes on case number G057510, People v. Solis pending in the Court of Appeal, Fourth District, Division Three. The case is fully briefed, but Oral arguments have not yet been scheduled. As a reminder - Oral argument has NOT been scheduled yet, and probably won't be until early this year  (attorney unavailability noted out to 02/18/20, last checked)

IN THE DIFFERENT TRIAL COURTS: A BIG MESS

There are many issues in the Trial Courts. The DAs are trying to come up with "new theory" of Murder to keep the inmates incarcerated. Some DA's are trying to bring in (as new evidence) the Parole Suitability Hearing transcripts from CDCR (prisons).

Some Judges are overstepping their Boundary / Jurisdiction (i.e. LA County) by resentencing a 1st degree murder to a 2nd degree murder without an information/indictment nor proving each element of the crime Beyond a Reasonable Doubt. At this point- it is unclear -- If the DA did proceed by way of new information or indictment, would there be a double jeopardy issue?  Unknown
We hope a Notice of Appeal (NOA) will be filed on this injustice.


PRELIMINARY FILINGs of SB1437 [PC 1170.95 resentencing petition] by inmates: BEWARE

The 2d District, Division 1, has issued a published opinion in Vince Lewis, B295998, affirming a summary denial of an 1170.95 petition prior to appointment of counsel.  They hold that at the initial step, prior to appointment of counsel, the trial court may consider the "record of conviction", including the opinion on direct appeal, and summarily deny the petition on that basis alone. It appears that different Public Defenders regions are taking action to try to salvage some of these cases that the Judge may have wrongfully denied the  inmates' Petitions, before s/he had the advantage of having Counsel represent them.


Let's stay tune for the on-going development of the new law and its proper and improper execution at the Trial Court Level





Thursday, December 12, 2019

SB1437: UPDATE to GOODEN and LAMOUREUX Court after finding SB1437 is Constitutional

QUICK UPDATE on SB1437 since November BLOG post:

There are now two published cases that opined that SB1437 is Constitutional as stated in our November  BLOG. We also know that both were Published by the Court of Appeal, Fourth District, Division One: People v. Lamoureux (D075794) and People v. Superior Court  (Gooden/Dominguez) (D75787 and D75790).

We now provide the update that the Remittitur has not been issued in these cases, but is scheduled for January 21, 2020. We believe that it is likely that People v. Lamoureux  and People v. Superior Court  (Gooden/Dominguez) will be petitioned to the California Supreme Court, after the Remittitur is issued, next month. Again we wait and see.

Still up to date we believe that the Orange County Superior Courts have, so far, adopted the position that SB 1437 is unconstitutional.  We are now keeping our eyes on case number G057510, People v. Solis pending in the Court of Appeal, Fourth District, Division Three. The case is fully briefed, but Oral arguments have not yet been scheduled.

A quick look at the last Docket entry for Solis indicate --->:
Oral argument has NOT been scheduled yet, and probably won't be until next year (attorney unavailability noted out to 02/18/20, as of 12/04/19.


Stay tune....... for both Division One and Three in the Court of Appeal, Fourth District.

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.  
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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.
 
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      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. 

 
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    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.





 
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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.