Friday, November 19, 2021

Governor Signs SB775, Clarifying the Scope and Procedure for Resentencing Under SB1437 (Pen. Code, § 1170.95)

On October 5, 2021, the the Governor signed Senate Bill No. 775, which amends Penal Code section 1170.95 (added by Senate Bill No. 1437) to expand eligibility for resentencing and clarify procedural requirements for the process. The amendments are effective January 1, 2022. 

This is an EXCERPT from Central California Appellate Program (CCAP)'s announcement: 

 Here are the important highlights: 

  The bill provides that defendants convicted of the following crimes may be eligible for resentencing (provided other criteria in the statute are met, see amended Pen. Code, § 1170.95, subd. (a)(1)-(3)): (1) attempted murder under the natural and probable consequences doctrine, (2) manslaughter, or (3) murder under an implied malice theory where malice is imputed to a person based solely on that person's participation in a crime. (Id., subd. (a).) 

The bill clarifies that the trial court must determine whether the petitioner could presently be convicted of murder or attempted murder. (Id., subd. (a)(3).) 

It codifies the holdings of People v. Lewis (2021) 11 Cal.5th 952, 961-970, regarding a petitioners' right to appointment of counsel and the standard for determining the existence of a prima facie case. (Amended Pen. Code, § 1170.95, subds. (b)(3), (c).) 

 It provides that if the trial court declines to issue an order to show cause at the prima facie stage, the trial court must provide a statement of reasons fully setting forth the basis for its decision. (Id., subd. (c).) 

The bill clarifies procedural requirements for a subdivision (d)(3) hearing. "The admission of evidence in the hearing shall be governed by the Evidence Code, except that the court may consider evidence previously admitted at any prior hearing or trial that is admissible under current law, including witness testimony, stipulated evidence, and matters judicially noticed. The court may also consider the procedural history of the case recited in any prior appellate opinion." (Emphasis added; note that the bill does not state that the factual summary in an appellate opinion may be considered.) Hearsay evidence that was admitted in a preliminary hearing pursuant to Penal Code section 872, subdivision (b) (sworn testimony of a current or retired law enforcement officer relating the statements of declarants made out of court and offered for the truth of the matter asserted) "shall be excluded from the hearing, unless the evidence is admissible pursuant to another exception to the hearsay rule." (Id., subd. (d)(3).) 

The legislation amends section 1170.95 to provide that "[a] finding that there is substantial evidence to support a conviction for murder, attempted murder, or manslaughter is insufficient to prove, beyond a reasonable doubt, that the petitioner is ineligible for resentencing." (Ibid.) 

A person who is resentenced may be subject to parole supervision for up to two years (formerly up to three years). (Id., subd. (h).) 

It clarifies that a person who is currently appealing the judgment in their case may seek relief under SB 1437 on direct appeal: "A person convicted of murder, attempted murder, or manslaughter whose conviction is not final may challenge on direct appeal the validity of that conviction based on the changes made to [Penal Code] Sections 188 and 189 by Senate Bill 1437 (Chapter 1015 of the Statutes of 2018)." (Id., subd. (g).)  


A BIG THANK YOU to CCAP for summarizing the high points.

Monday, October 18, 2021

New Laws (SB 81, AB 518, SB 775) & Supreme Court Interpretation Of 1170.95 Statute (aka SB 1437)

A few month ago, the Supreme Court in People v. Lewis (2021) 11 Cal.5th 952 interpreted Penal Code section 1170.95, which was enacted in Senate Bill 1437, 2018 legislation narrowing murder liability under the felony murder theory and the natural and probable consequences doctrine. 

  If any inmates (or their attorneys) have winning Superior Court SB1437s cases between now and the end of the year consider putting off the resentencing until 1/1/22 to get the benefit of some of the new laws. 

 *** SB 81 (creates a set of guidelines for courts that would curb the use of sentence enhancements in nonviolent offenses unless a judge determines that they are necessary to protect public safety ) has many new considerations which might way in favor of dismissing long enhancements. 

 *** AB 518 amends PC 654 (an act or omission that is punishable in different ways by different provisions of law); stating informally that the judge does not have to pick the longest term for the same act anymore. 

*** SB 775 (SB 775 clarifies existing law to explicitly include voluntary manslaughter and attempted murder conversation as eligible for relief under SB 1437) affirms that the max parole period after resentencing is 2 years, down from 3 years. 

The Governor signed these new laws that amend statutes and will be effective January 2022. 

 For instance SB 775: The bill says that it “[c]odifies the holdings of People v. Lewis (2021) 11 Cal.5th 952, 961-970, regarding petitioners’ right to counsel and the standard for determining the existence of a prima facie case” and that it “[a]ddresses what evidence a court may consider at a resentencing hearing (clarifying the discussion in People v. Lewis, supra, at pp. 970-972).”  

At present, there are many cases on the court’s docket holding for Lewis. SB 775 may affect those cases. If it does, the court would hold off on disposing of those grant-and-holds so that NOW any Reconsideration orders would most likely include references to both the new legislation and Lewis. Stay tuned. 


RECOMMENDATIONs given the new laws effective 1/1/2022:                                                          (thank you to the CCAP (appellate group) for the words of wisdom) 

If anybody has winning superior court 1437s cases between now and the end of the year consider putting off the resentencing until 1/1/22 to get the benefit of some of the new laws (SB 81, AB 518, SB 775), as described above. 

Other laws or cases to keep in mind that If the inmate was under 18 at the time of the crime the People v. Montes: the case says that when somebody is resentenced they get the benefit of the new laws - specifically Prop. 57 which repealed Prop 21, which allowed for the direct-file of juvenile offenders in the adult criminal justice system. Prop 21 placed the discretion of whether to prosecute a juvenile as an adult solely with the prosecutor. However, under Prop 57, the judge retains the decision as to whether a juvenile is better served in the juvenile justice system or the adult criminal justice system. 

Even if your client (inmate, or loved ones) is old now and was direct filed or had a prior transfer hearing you need to make a motion to transfer to juvenile court citing People v. Montes. Pre-Prop. 57 transfer hearings don't suffice because the burdens have changed and are now more juvenile friendly. (People v. Garcia (2018) 30 Cal.App.5th 316.) 

The case that judges were using to argue against juvenile transfer motions -- Federico -- is still pending in the Supreme Court, but People v. Montes was written by the author of Federico and the justice reversed himself with People v. Montes (10/7/21 new case).

 DO not let judges rely on Federico without arguing Montes. 

 Below is the People v. Montes case info URL address: case in the COA-4, Division 2:

(NOTE: you can cut-n-paste the URL address into your Navigator to get to the PDF case file.

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.



                  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 12/17/21 new

** 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.”