Translate

Wednesday, September 8, 2021

Law Office of Diane T. Letarte offers a Scholarship to win a FREE Parole Hearing representation to the Best Essay Winner: 12/1/21 deadline application.

               

California 

                  PAROLE HEARING SCHOLARSHIP                    

If your Loved One meets the criteria below

Have them write our law office to request a scholarship application:


    Law office of Diane Letarte

   Attn: Scholarship

                                                              1080 Park Blvd., Suite 1008

                                                                 San Diego, CA 92101


*Winner will receive FREE Parole Representation 

at their next (2022) parole suitability hearing 

 

CRITERIA to request a Scholarship Application

 

1)     No CDC-115 (RVRs, since 2018)

2)     Parole Hearing scheduled date must fall between  3/15/2022  and  5/15/2022

3)     **  Psychological Evaluation (aka CRA) risk rating is either a Low or a Moderate

4)     You are NOT currently represented by a private attorney or a Law School Program

5)     Deadline to return scholarship application, postmarked on or before 12/1/21

** If this is an INITIAL hearing and your Loved One has not yet received their Psychological evaluation [CRA] they must still meet the above 1, 2, 4 criteria and have NO GANG related RVRs since 2011.

 

The Scholarship Application will request that your Loved One answer a few questions and then provide an essay of 2-3 pages; maximum. The application contains the instruction needed for the specific essay. The judging criteria (by Attorney Letarte) for Best essay will look for insight, causative factors, and self-introspection based on their writing style. The essay can be typed or neatly handwritten. The Winner gets Free parole hearing representation (by Attorney Letarte) at their next hearing. Two Runner-ups will receive a free copy of the 2020 Edition of the TIPS document (40+ pages), to assist them in their parole hearing preparation. NOTE: The winners (only) will be notified before Dec 31, 2021.

 

 

*****

Please make sure that your Loved One MEETS the above criteria before they write to our law office for the scholarship application; to give all qualifying candidates a chance. If the information is inaccurate, it may disqualify the scholarship applicant from this scholarship and any potential future scholarship offered by this Law Office.

*****


Our Motto:

It’s not the size of the DOG in the fight,

It’s the size of the FIGHT in the dog.”

 


Tuesday, August 10, 2021

People v. Williams (under review) Youth Offender Parole--Constitutionality of Excluding Young Adults Sentenced Under One Strike law


What's up in the California Supreme Court?

For those following the cases in the Cal. Supreme Court; we list several cases below. The availability of early parole for youthful sex offenders is still unsettled and presently pending in the Cal. Supreme Court.  One case that is of particular interest for Parole Hearings is People v. Williams.

The court limited review to the following issue :

Does Penal Code section 3051, subdivision (h), violate the equal protection clause of the Fourteenth Amendment by excluding young adults convicted and sentenced for serious sex crimes under the One Strike law (Pen. Code, § 667.61) from youth offender parole consideration, while young adults convicted of first degree murder are entitled to such consideration? (People v. Williams (2020) 47 Cal.App.5th 475, San Diego County Superior Court; review granted 7/22/2020 (S262229/D074098).)

Review on this issue has also been granted with briefing deferred in:

    People v. Williams (Apr. 7, 2020, A157031) [nonpub. opn.], review granted 7/22/2020 (S262191)
    People v. Moseley (2021) 59 Cal.App.5th 1160, review granted 4/14/2021 (S267309/B303321)
    People v. Escamilla (Mar. 18, 2021, F077568) [nonpub. opn.], review granted 5/26/2021 (S268403)
   People v. Cervantes (Mar. 30, 2021, G057340) [nonpub. opn.], review granted 6/16/2021 (S268298)
    People v. Miranda (2021) 62 Cal.App.5th 162, review granted 6/16/2021 (S268384/E071542)
    In re Woods (2021) 62 Cal.App.5th 740, review granted 6/16/2021 (S268740/B301891)

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

Other Noteworthy Criminal Cases Pending In The California Supreme Court (As of July 2021)


People v. Carney, S260063. (C077558; nonpublished opinion; Sacramento County Superior Court; 11F00700.) Petition for review after the Court of Appeal remanded for resentencing in part and otherwise affirmed judgments of conviction of criminal offenses. The court limited review to the following issues: (1) Does the “substantial concurrent causation” theory of liability of People v. Sanchez (2001) 26 Cal.4th 834 permit a conviction for first degree murder if the defendants did not fire the shot that killed the victim? (2) What impact, if any, do People v. Chiu (2014) 59 Cal.4th 155 and Senate Bill No. 1437 (Stats. 2018, ch. 1015, § 1, subd. (f)) have on the rule of Sanchez?

People v. Duke, S265309. (B300430; 55 Cal.App.5th 113; Los Angeles County Superior Court; MA057733.) Petition for review after the Court of Appeal affirmed an order denying a post-judgment motion in a criminal matter. The court limited review to the following issue: Can the People meet their burden of establishing a petitioner’s ineligibility for resentencing under Penal Code section 1170.95, subdivision (d)(3) by presenting substantial evidence of the petitioner’s liability for murder under Penal Code sections 188 and 189 as amended by Senate Bill No. 1437 (Stats. 2018, ch. 1015), or must the People prove every element of liability for murder under the amended statutes beyond a reasonable doubt?

People v. Federico, S263082. (E072620; 50 Cal.App.5th 318; Riverside County Superior Court; SWF017423.) Petition for review after the Court of Appeal affirmed a judgment of conviction of criminal offenses. This case presents the following issue: Did defendant’s resentencing pursuant to Penal Code section 1170, subdivision (d)(1) “reopen” the finality of his sentence, such that he was entitled to the retroactive application of Proposition 57 and Senate Bill No. 1391 on an otherwise long-final conviction? (See also People v. Padilla, S263375.)

People v. Henderson, S265172. (B298366; 54 Cal.App.5th 612; Los Angeles County Superior Court; BA437882.) Petition for review after the Court of Appeal affirmed a judgment of conviction of criminal offenses. The court limited review to the following issue: Does the Three Strikes law (Pen. Code, §§ 667, subd. (c)(6) & (7), 1170.12, subd. (a)(6) & (7)) require consecutive terms on multiple current violent or serious felony convictions, regardless of whether the offenses occurred on the same occasion or arose from the same set of operative facts?

People v. Kopp, S257844. (D072464; 38 Cal.App.5th 47; San Diego County Superior Court; SCN327213.) Petition for review after the Court of Appeal affirmed in part and reversed in part judgments of conviction of criminal offenses. The court limited review to the following issues: (1) Must a court consider a defendant’s ability to pay before imposing or executing fines, fees, and assessments? (2) If so, which party bears the burden of proof regarding the defendant’s inability to pay?

In re Long, S249274. (E066388; nonpublished opinion; Riverside County Superior Court; RIF113354.) Petition for review after the Court of Appeal reversed an order granting relief on a petition for writ of habeas corpus. This case presents the following issues: (1) Did defense counsel render ineffective assistance by failing to consult a qualified expert on determining time of death and failing to present evidence regarding defendant’s clothing around the time of the crime? (2) Did the decision of the Court of Appeal adhere to the controlling standards of appellate review?

In re Lopez, S258912. (A152748; nonpublished opinion; Sonoma County Superior Court; SCR32760.) Petition for review after the Court of Appeal reversed an order granting relief on a petition for writ of habeas corpus. This case presents the following issues: (1) Does a true finding on a gang-killing special circumstance (Pen. Code, § 190.2, subd. (a)(22)) render Chiu error (People v. Chiu (2014) 59 Cal.4th 155) harmless? (2) To what extent or in what manner, if any, may a reviewing court consider the evidence in favor of a legally valid theory in assessing whether it is clear beyond a reasonable doubt that the jury based its verdict on the valid theory, when the record contains indications that the jury considered the invalid theory? (See People v. Aledamat (2019) 8 Cal.5th 1.)

People v. Lopez, S258175. (B271516; 38 Cal.App.5th 1087; Los Angeles County Superior Court; BA404685.) Petition for review after the Court of Appeal affirmed in part and reversed in part judgments of conviction of criminal offenses. The court limited review to the following issues: (1) Does Senate Bill No. 1437 (Stats. 2018, ch. 1015) apply to attempted murder liability under the natural and probable consequences doctrine? (2) In order to convict an aider and abettor of attempted willful, deliberate and premeditated murder under the natural and probable consequences doctrine, must a premeditated attempt to murder have been a natural and probable consequence of the target offense? In other words, should People v. Favor (2012) 54 Cal.4th 868 be reconsidered in light of Alleyne v. United States (2013) 570 U.S. 99 and People v. Chiu (2014) 59 Cal.4th 155?

In re Mohammad, S259999. (B295152; 42 Cal.App.5th 719; Los Angeles County Superior Court; BA361122, BH011959.) Petition for review after the Court of Appeal granted relief on a petition for writ of habeas corpus. This case presents the following issue: Is a prisoner serving a sentence for a combination of violent and nonviolent felonies eligible for early parole consideration under the provisions of Proposition 57 following completion of the term for his or her primary offense?

People v. Strong, S266606. (C091162; nonpublished opinion; Sacramento County Superior Court; 11F06729.) Petition for review after the Court of Appeal affirmed an order denying a post-judgment motion in a criminal matter. This case presents the following issue: Does a felony murder
special circumstance finding (Pen. Code, § 190.2, subd. (a)(17)) made before People v. Banks (2015) 61 Cal.4th 788 and People v. Clark (2016) 63 Cal.4th 522 preclude a defendant from making a prima facie showing of eligibility for relief under Penal Code section 1170.95?

People v. Superior Court (Jones), S255826. (D074028; 34 Cal.App.5th 75; San Diego County Superior Court; CR136371.) Petition for review after the Court of Appeal denied a petition for peremptory writ of mandate. This case presents the following issue: Does Penal Code section 1054.9 entitle an eligible defendant to discovery of a trial prosecutor’s notes about jury selection with respect to a claim of Batson/Wheeler (Batson v. Kentucky (1986) 476 U.S. 79; People v. Wheeler (1978) 22 Cal.3d 258) error at trial?

People v. Tirado
, S257658. (F076836; 38 Cal.App.5th 637; Kern County Superior Court; BF163811A.) Petition for review after the Court of Appeal affirmed a judgment of conviction of criminal offenses. This case presents the following issue: Can the trial court impose an enhancement under Penal Code section 12022.53, subdivision (b), for personal use of a firearm, or under section 12022.53, subdivision (c), for personal and intentional discharge of a firearm, as part of its authority under section 1385 and subdivision (h) of section 12022.53 to strike an enhancement under subdivision (d) for personal and intentional discharge of a firearm resulting in death or great bodily injury, even if the lesser enhancements were not charged in the information or indictment and were not submitted to the jury?


 

Monday, July 12, 2021

People v. Thomas (2021) 64 Cal.App.5th 924: If convicted of felony murder before SB 1437, but not sentenced until after the law took effect: defendant entitled to benefits of murder law changes on direct appeal

People v. Thomas (2021) 64 Cal.App.5th 924 , District: 2 DCA , Division: 8 , Case #: B298946
Opinion Date: 5/28/2021

Case Holding:

Defendant who was convicted of felony murder before the effective date of Senate Bill No. 1437, but not sentenced until after the law took effect, was entitled to the retroactive benefits of changes in the murder law on direct appeal. 

Thomas was convicted of murder and other offenses based on a gang-related shooting. Prior to sentencing, he made a motion for a new trial based on SB 1437's changes to the murder law. His motion was denied. On appeal, he argued the motion was wrongly denied because SB 1437 took effect prior to his sentencing and rendered his felony murder conviction invalid. Held: Reversed. 

SB 1437 amended Penal Code sections 188 and 189, limiting murder liability to those principals who act with malice aforethought, and narrowed the liability for first-degree felony murder to: (1) the actual killer, or (2) the aider and abettor who intended to kill, or who was a major participant and acted with reckless indifference to human life. It added Penal Code section 1170.95, which contains a resentencing procedure for defendants convicted of murder based on an invalid theory. 

Cases have held this is the exclusive remedy for retroactive relief for nonfinal judgments. (People v. Gentile (2020) 10 Cal.5th 830.) However, cases do not address use of the procedure by persons convicted before SB 1437 took effect whose sentencing occurs after its effective date. Based on the language of the statute, the petition must be filed in the sentencing court. This reflects that section 1170.95 is solely a post-judgment remedy and not applicable to defendants like Thomas, who were not yet sentenced on the effective date of the law. Thomas was entitled to seek relief by filing a new trial motion challenging the legality of his conviction under the new law.

Misconduct by counsel for a codefendant can violate a defendant's Fourteenth Amendment right to due process. Prosecutorial misconduct under federal law is based on alleged violations of the Fourteenth Amendment. While the Fourteenth Amendment requires state action, there is U.S. Supreme Court precedent finding state action based on a private actor's conduct in a civil trial. A criminal jury trial is initiated by state action. "When counsel for a codefendant attacks another defendant, such conduct may inadvertently assist the prosecutor's case against such a defendant." Codefendant's counsel cannot be permitted to trounce on the rights of the other defendant. Further, a trial judge must control all proceedings in the court to ensure a fair trial for all defendants. Where a codefendant's attorney shifts blame to a particular defendant through misconduct at trial, this raises serious questions as to the fairness of the proceedings. Therefore, "in the context of a multiple defendant criminal trial brought by the state, misconduct by a codefendant's counsel constitutes state action for purposes of the Fourteenth Amendment." Applying the rules for assessing prosecutorial misconduct under federal law, counsel for a codefendant commits reversible misconduct only if the conduct infects the trial with such unfairness as to make the resulting conviction a denial of due process. Thomas argued that codefendant's counsel committed numerous acts of misconduct, thereby denying him a fair trial. However, in most of the cited instances, Thomas forfeited the issue by failing to make a timely and specific objection. In any event, the alleged misconduct was harmless as to Thomas and his counsel was not prejudicially ineffective for failing to object.

The full opinion is available on the court's website see l;ink below:  

https://www.courts.ca.gov/opinions/documents/B298946.PDF 

 

 A BIG THANK YOU TO THE CENTRAL CALIFORNIA APPELLATE PROGRAM (CCAP)

 who provide  regular Case Summaries of Published Court of Appeal Opinions.  

The above REPRINT is for Education purpose in the area of Felony Murder, specifically Senate Bill 1437 and on going California cases.