WINNER of the 2021 Scholarship from the Law Office of Diane T. Letarte hails out of CTF: The Winner gets a PRO BONO 2022 Parole Hearing representation

In the last several months, our law office was running a Parole Hearing Scholarship Essay competition for any inmate to win a Pro Bono Parole Hearing Representation by Attorney Diane T Letarte. This was available throughout the 35 California State Prisons, as posted in the Prison Newsletters that endorsed our Scholarship. The two Newsletters were:  ECC and POSSE as described below.

Attorney Diane T. Letarte spent several days reading all the Essays that were turned in and grading them on a 1 to 10 scale: 10 being the Best Essay. The grades ranged from 3.5 to 9.0 out of a 10 point grading system. The essays reflected different level of self-introspection in the responses by the inmates. We do not have authorization yet to post the NAME of the Winner (at the writing of this BLOG) but we provide the following results based on Prison Location, admission date, and their current age.

PRIZEs: 

1st Place Winner receives a Pro Bono representation by Attorney Letarte at his 2022 Parole Hearing. 

2nd and 3rd place winners will receive the revised TIPS document (authored by Attorney Letarte, consisting of over 40 pages) to assist with their own preparation at their next parole hearing. In addition, they will get our Law Office complimentary 2022 Wall Calendar to keep track of all their important dates.

PAROLE HEARING 2021 SCHOLARSHIP RESULTS 

 1st  Place WINNER from  Correctional Training Facility (CTF) State Prison,

        He was admitted in October 1994 and is currently 48 years old.

 

        His Parole Eligible Date was 2/2011; Has been in the Board cycle since 2009

2nd Place (1st runner-up) from  California Substance Abuse Treatment Facility (SATF-COR)

       He was admitted in June 1997 and is currently 51 years old.

       His Parole Eligible Date was 4/2004; Has been in the Board cycle since 2004

 

3rd Place (2nd runner-up) from Chuckawalla Valley State Prison (CVSP)

       He was admitted in March 2009 and is currently 43 years old.

       His Parole Eligible Date was 10/2021; Has his Initial Board Hearing in  2022

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Any Long-Term Offenders had a chance to enter the 2021 Parole Hearing Scholarship by writing before the 12/17/2021 envelope post-date deadline to: 

 Law office of Diane Letarte  

Attn: Scholarship 

1080 Park Blvd., Suite 1008 

San Diego, CA 92101 

 We may entertain doing a 2022 Scholarship next year depending on the availability of the Attorney. 

Please keep your eyes open for the next Scholarship listed (on this BLOG) and in the ECC or POSSE newsletters. The newsletters are usually found at the Prison library for Free or via a subscription to either newsletter listed below. You can write to subscribe to them.

            ECC                                           POSSE
            P.O. Box 5010                            P.O. Box 900188
            Irvine, CA  92619                       Palmdale, CA  93590
 

 

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The OLD 2021 CRITERIA for the Scholarship Application WAS as stated below. One can anticipate similar criteria for any potential future 2022 Parole Hearing Scholarship.

     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

 

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.

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.

 https://www.courts.ca.gov/opinions/documents/E075064.PDF

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 12/17/21 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.”

 

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)

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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?


 

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.

 

INFORMAL Parole Suitability Hearing Practical Tips (aka “TIPS”) and TIPS2 (for Covid19 correspondence course assistance)

Since our Law Office receives so many phone calls from inmates and Family members that want assistance (but may not be able to afford a private attorney)  in Preparing for the Initial and Subsequent Parole Hearings, we dedicated this June BLOG to describing Resources that our law office has compiled over many years, that may be useful to  inmates and/or the Family and Friends of the inmates.

Over our 20+ years of Law practice in the area of Post-Conviction (i.e. Parole Suitability Hearings) we accumulated different resources from many sources: including our clients, transitional homes, other Lifer advocates, etc..  We combined the materials in an informal PDF document that we named TIPS. TIPS was first released in 2012 (20 pages or so) or so; some older version are still floating around in the different prisons. 

The (619-233-3688) Law office of Diane T. Letarte has recently Revised the Original “TIPS” pamphlet entitled: “Parole Suitability Hearing Practical Tips”. The last Revision was created December 2020. It has grown to 50 pages or so, see Description below.  NOTE: Different then the TIPS2 packet described further below. After reading the TIPS / TIPS2 descriptions below, if you believe it may be helpful to an inmate (or a Family/Friend) - feel free to download it, print it, and US mail it to an inmate (or LO) for assistance in his/her Parole Hearing Preparation. 

The PDF files are Free but there is a DOWNLOADABLE small fee (~$6 - $9), which contributes to the website hosting of the two (2) .PDF documents entitled TIPS and TIPS2.

Below are the Descriptions of TIPS and TIPS2: 

TIPS:  informal INMATE resource: 

The TIPS document allow the inmates to better understand what they need to prepare for the Parole Hearing and what to expect from the Commissioners. The TIPS (2020 Edition, 49 pages).

TIPS is an easy to read document with a non-legalese approach to prepare the inmate on WHAT to expect  during the Parole Suitability Hearing (BPH). TIPS also contains SAMPLE Questions from both the Commissioners (BOARD) and the Prison Psychologist. The NEW 2020 Edition contains more information on COVID19 Video Hearings as well as Youth and Elderly Parole hearings as well as existing new 2020 law: (i.e SB1437 Felony Murder and AB3234, new elderly law). There are now 17 (as of 2021)  Commissioners appointed by the Governor who hear these Parole Hearings across all 35+ Prisons, where it is normally conducted. Soon to be increased in 2021-2022 by a two (2) more Commissioners to accommodate all the new Elderly Parole Hearings and Non-Violent 3rd strikers, among others.

We are including the Table of Contents below for your review.

Table of Contents  (for TIPS)

 
I.    INTRODUCTION    5
II. PART 1:THE PAROLE HEARING & CRIME    5
   What about COVID19 and BPH Video hearings?    6
   PRACTICAL TIPS:  Do I speak about “the crime”?    7
   What about INSIGHT?    9
   Board of Parole Hearings Sample Questions    12
III. PART 2:POST CONVICTION FACTORS    15
IV. PART 3: PAROLE PLAN    16
   Relapse Prevention Plan (RPP)    17
   The 10 Most Common Relapse Triggers    18
V. POST-CONVICTION PROGRESS REPORT    19
VI. PSYCHOLOGICAL Evaluation (CRA)    19
   Psychologist: Sample  Questions    21
VII. USE OF CONFIDENTIAL FILES    24
VIII. LAWRENCE,SHAPUTIS I,SHAPUTIS II    25
   A. In re Lawrence : 44 Cal. 4th 1181 (2008)    25
   B. In re Shaputis:  44 Cal. 4th 1241 (2008)    26
   C. In re Shaputis II  53 Cal.4th 192 (2011)    27
IX. LIFER LAWs (and other Laws)    28
   A. Marsy’s Law (A.K.A. Prop 9)    28
   B. Youth Offender Parole Hearings (SB260/261, AB1308, SB394)    29
   C.  Elderly Parole Hearing (60/25 And 50/20)    31
   D. SB1437 (Felony Murder) & Prop 47  &  Prop 57    33
     …. Filing the Felony-Murder Petition    34
    E. Administrative Review (AR) Of Hearings    36
X. THINGS TO REMEMBER    36
     Is It Time To Appeal To The Court?    38
XI. HOW CAN FAMILY/FRIENDS SUPPORT ME    38
   A1. Why/How To Write  Support Letters?    39
   A2. Parole Plan & Transitional Homes    40
   A3. Where Do I Send The Support Letters?    41
   A4. To Whom Do I Address The Support Letter?    41
   A5. How To Write A Job Offer Letter?    42
   A6. How Do I Get The Prison’s Address?    42
XII. GOT DENIED PAROLE - WHAT NEXT?    43
XIII. BLACK LIVES  MATTER - LA DA ends Opposition to Parole Grants    45
   A1.  LA's New DA George Gascón Ushers In Sweeping Changes, Less Punitive    Approach to Crime.    45
   A2.  Ending Use Of The 'Racist' Death Penalty    46
   A3. Lifer Parole Hearing Impact: LA DA To Support A Grant    47

 

TIPS2:  informal FAMILY resource (to help loved ones):

The TIPS2 document allow the Family/Friends to send resources (e.g. correspondence classes addresses, etc.)  to their LOs so they can better prepare for their Parole Hearing and what to expect from the Commissioners. The TIPS2 (2020 Edition, 59 pages).

From different engagements that we were invited to speak at -->  one time or another, such as Families of the Incarcerated, among other venues, we received many questions from family members and friends. The recurring theme is always asking: “ What can we do to help our Loved Ones “LO”?”.   We subsequently created a separate and informal document that we named TIPS2.

Subsequently with COVID19 and the Prison movement restrictions, inmates had little (or no) Group or individual self help classes available to increase their Rehabilitation. We enhanced TIPS2 so that  Friends/Family (on the outside) can assist their LO, by providing them with the name of correspondence classes, Books to read for Book Reports, writing appropriate support letters, etc..

The Resource pages included in this Practical informal TIPS2 packet are from all different sources that our office as acquired over several years, to assist our Long Term Offender (and Lifers) clients.   This packet contains several different topics; Book List, Book Report Sample, Correspondence classes address, Transitional Housing resources, CDCR Mental health system assistance for in-cell classes. It also contains courtesy Sample excerpts of  the ECC, LSA, and POSSE newsletters; if you chose to subscribe to them for your Loved One, please contact the Newsletter staff directly. There is a separate CLN (older California Lifer Newsletter sample) that is now published by LSA; you can also request a Subscription for CLN.  These Newsletters are published and mailed to the prisons; your LOs maybe familiar with them. We are including the Table of Contents below for your review.

  Table of Contents  (for TIPS2)

I. INTRODUCTION    4
II. Parole Hearing Guidelines    5
    Apology Letter(s)    5
    Relapse Prevention Plan (RPP)    6
    The 10 Most Common Relapse Triggers    7
    Board Of Parole Hearings - QUESTIONS    8
III. CALIFORNIA AVAILABLE NEWSLETTERS    11
   A1. LSA NEWSLETTER - SAMPLE    11
   A2. PLU MAX- POSSE NEWSLETTER - SAMPLE    20
   A3. ECC  NEWSLETTER - SAMPLE    23
   A4. CLN CA LIFER NEWSLETTER [2017 Excerpts]    25
IV. Correspondence Self-Help classes    33
   A1. PREP correspondence courses    33
   A2. LSA correspondence courses    33
   A3. MAX PLU - POSSE  correspondence courses    35
   A4. CDCR - Mental Health Delivery System (MHDS)    38
   A5. CRIMINON  correspondence courses    40
   A6. FREE  correspondence courses    43
V. BOOK LIST and BOOK REPORTS    45
    Book List    45
    Book Report - Sample    48
VI. Is It Time To Appeal To Court?    49
VII. SUPPORT LETTERS    50
   A1. Why/How To Write  Support Letters?    50
   A2. Parole Plan & Transitional Homes    51
   A3. Where Do I Send The Support Letters?    52
   A4. To Whom Do I Address The Support Letter?    53
   A5. How To Write A Job Offer Letter?    53
   A6. How Do I Get The Prison’s Address?    54
VIII. GOT DENIED PAROLE - WHAT NEXT?    56

DISCLAIMER1: 

The Law Office of Diane Letarte has no affiliations with any of the Newsletters. We do not promote (or endorse) any one resource over another. Some have correspondence classes are Free and others have a small fee for their services. Some Newsletters may be available or not. It is up to the reader to to the foot work and contact the individual entities for the latest information.

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

DISCLAIMER2:  -->

Please pardon any inconsistent formats in our TIPS and TIPS2. TIPS2 was created (during COVID19 pandemic) to get information out to the inmates’ Families so they can assist their Loved Ones for their Parole Hearing;  parts/sections were from different sources and formats.  Keep in mind, this is intended to be an “informal practical TIPs” document. We have no Editor or Publisher. The Attorney and staff are working “on their own free time” to try to gather the information for the inmates and/or Families of the incarcerated.
 

Effective May 1, 2021, CDCR is changing the Good Conduct Credit (GCC) by increasing the credit rate (Prop 57)

Given the many questions our law office has received on the new CDCR standardizing the amount of Good Conduct Credit (GCC) by increasing the credit rate for eligible incarcerated people; we provide the explanation below and a refresher of the November 2016, California voters passing Proposition 57, the Public Safety and Rehabilitation Act of 2016.

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

In November 2016, California voters overwhelmingly passed Proposition 57, the Public Safety and Rehabilitation Act of 2016. Under Proposition 57, CDCR has incentivized incarcerated people to take responsibility for their own rehabilitation by providing credit-earning opportunities for sustained good behavior, as well as in-prison program and activities participation. Under Proposition 57, incarcerated people increased their Good Conduct Credit earning, and have been given time credits for participation in Milestone Completion Credits, Rehabilitative Achievement Credits, and Educational Merit Credits. Earning additional credits can move up parole consideration of people convicted of nonviolent crimes who have served the full-term of the sentence for their primary offense, and who demonstrate that their release to the community would not pose an unreasonable risk of violence to the community.

As a Reminder: Proposition 57 included three major components designed to improve the juvenile and adult criminal justice system in California.

1) Establishes a parole consideration process for determinately-sentenced and indeterminately-sentenced people convicted of nonviolent crimes, as defined by California Penal Code, who have served the full term for their primary criminal offense and who demonstrate they no longer pose a current, unreasonable risk to the public.

2) Gives incarcerated people the opportunity to earn additional credits for good behavior and participation in rehabilitative, educational, and career training programs so they are better prepared to succeed and less likely to commit new crimes on the outside.

3) Requires judges, rather than prosecutors, to determine whether juveniles charged with certain crimes should be tried in juvenile or adult court.


Effective May 1, 2021, CDCR is standardizing the amount of Good Conduct Credit (GCC) by increasing the credit rate for eligible incarcerated people based on their conviction pursuant to emergency regulations. GCC incentivizes incarcerated people to comply with departmental regulations and prison rules, and to perform the duties assigned on a regular and satisfactory basis.

Gov. Newsom’s administration explains the goals of the new policy, “The goal is to increase incentives for the incarcerated population to practice good behavior and follow the rules while serving their time, and participate in rehabilitative and educational programs, which will lead to safer prisons… Additionally, these changes would help to reduce the prison population by allowing incarcerated persons to earn their way home sooner.”


Good Conduct Credit

GCCs are awarded to eligible individuals who comply with all the rules within a prison and perform their duties as assigned on a regular basis. Increasing the amount of GCC provides a compelling reason for individuals to positively program, as GCC may be forfeited due to disciplinary action.

Effective May 1, 2021, CDCR will increase the rate of GCC earned for individuals serving time under Penal Code 667.5(c) from 20% to 33%, and from 33.3% to 50% for nonviolent second and third strikers.

Minimum Security Credit

Under the emergency regulations, CDCR is establishing the Minimum Security Credit (MSC), which will be awarded to all eligible incarcerated people who work in conservation (fire) camps, are trained as firefighters, or who are assigned to minimum custody status. Effective May 1, 2021, incarcerated people will be awarded 30 days of credit for every 30 continuous days served.

Milestone Completion Credits

MCC is awarded for successful completion of rehabilitative or educational programs designed to prepare participants to find employment upon release.
MCC is awarded in increments of not less than one week, but no more than 12 weeks, in a 12-month period.

Rehabilitative Achievement Credits

RAC is awarded to those who complete specified hours of approved self-help and volunteer public service activities.
10 days of credit may be awarded to someone who completes 52 hours of approved programming in a 12-month period.


Educational Merit Credits

 EMC is awarded for completion of high school diploma or equivalency programs, higher education degrees, or the Offender Mentor Certification Program (OMCP).
 90 calendar days may be awarded for completion of a high school diploma or high school equivalency approved by the Department of Education, while 180 days may be awarded for successful completion of associate, bachelor’s and post-graduate degrees, and the OMCP.

Extraordinary Conduct Credits

An award of up to 12 months of credit may be awarded to those who have performed a heroic act in a life-threatening situation or who have provided exceptional assistance in maintaining the safety and security of a prison.

Under Proposition 57, CDCR increased credits for Good Conduct and Milestone Completion Programs, and introduced credits for Rehabilitative Achievement and Educational Merit. Credit-earning opportunities incentivize incarcerated people to actively participate in their rehabilitation, while earning time off of their sentence.

All people in state prison, except those condemned to death or sentenced to life without the possibility of parole. A Big Thank you for CDCR and BPH for updating their website to provide the latest updates.

We suggest that inmates can contact their counselors or the Case Records department [at their institutions] to ask for a recalculation of their Release Date, if  they believe they have accumulated these credits, that are not reflected in their Central-file.


 

BPH's emergency Regulations state the Board is not required to give Comprehensive Risk Assessments (CRA) under certain grounds

 Our law office is getting  many questions regarding the Board of Parole Hearings adopting emergency  regulations regarding Title 15 Ca. Code of Regs. Section 2240 (d); the code that solidified the Comprehensive Risk Assessments (CRA, a.k.a. Psychological evaluation) and its use in parole suitability hearings.  

The increase in the number of people eligible for a parole hearing and number of postponements due to COVID-19 have created an overwhelming demand for parole hearings. This increase in the demand for hearings has also resulted in an overwhelming demand for Comprehensive Risk Assessments (CRAs).

In an effort to provide the most people with parole hearings, the Board has adopted emergency regulations. The Board's emergency regulations explain that risk assessments will not be required for all parole consideration hearings. The Board of Parole Hearings (BPH) recognizes the inmates’ right to a timely parole hearing. The new Regulations DO NOT change the current Parole Hearing schedule nor does it exclude any Lifers (or Long-Term Offender) from having their set Parole Hearing held.

Specifically, these regulations state the Board is not required to prepare a Comprehensive Risk Assessment (CRA) for parole hearings scheduled to occur between April 1, 2021 and June 30, 2022 if the inmate:

1) is  designated by the department (CDCR) to be Security Level IV   and
2) have received two or more serious 115s between January 1, 2018 and Jan 1, 2022.

Will it automatically mean a denial for those impacted by the change? Not necessarily.
This means that if a Lifer who fits the criteria has received a HIGH-risk rating on a past CRA s/he will not receive a new CRA. Keep in mind that less than 1% of those individuals up for parole who present with a HIGH-risk rating are granted parole.

In short, one would need to have 2 serious RVRs within 3 years; the likelihood of  a FAD (BPH) clinician reducing their risk rating (whether from high to moderate or moderate to low) is, almost impossible.  So, while those who fall under these new Regs will not get a new CRA, even if that current document is older than 3 years, they will still get a parole hearing at the scheduled date and time. And they still have the opportunity, uphill battle though it may be, to convince the parole panel of their suitability.

IN SHORT: if you are a Security Level IV inmate, with 2 or more serious RVRs between January 2018 and January 2021 in your jacket, you won’t be getting a new free CRA from BPH! Your hearing will go forward UNLESS the inmates waive or postpone their hearing.

If the inmate believes there was an error and s/he does not meet the grounds for not getting a CRA you or your attorney may challenge the decision not to prepare a CRA, by writing a letter to the Board Chief Counsel; PO BOX 4036; Sacramento, CA 95812-4036. Your letter must be received by the Board at least 30 days before the scheduled hearing to allow time for a pre-hearing response.   

If there is a change in your physical or mental health condition since your last RVR that would be relevant to determining your suitability for parole, you or your attorney may request a CRA. The written request must explain the change and how it is relevant to determining your suitability for parole.

Remember that California prisoners who are housed out of state for reasons ranging from accommodation for various health/family reasons to their own protection, do not receive a CRA either, prior to their California hearings, as the FAD forensic psychologists are not licensed to practice in states other than California.

Just like the out-of-state inmates, there is NOTHING stopping the inmate from hiring their own private Psychologist to administer different actuarial instruments, used by FAD psychologists to mimic the CRA that are used at a Parole Hearing.

In re JOHNNIE HOZE 2/25/21: Elderly Parole, no need to serve Thompson "prison" terms.

Congratulation to attorney Marc Norton for this great published case to assist in the Elderly Parole Hearings.

 In Short, the Board determined that Hoze must serve additional sentences for two offenses he committed in prison.  The trial court stated he was entitled to immediate release under the Elderly Parole Program.  Hoze is not required to serve his sentences for in-prison offenses because a grant of parole under section 3055 supersedes section 1170.1(c).

 

This is a straight forward decision and  some Court Excerpt are described below: 

For the FULL case see:  https://www.leagle.com/decision/infdco20110228632

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COURT FINDING:

When Johnnie Hoze was 67 years old, and after he had served nearly four decades in state prison on an indeterminate life sentence, the Board of Parole Hearings ("Board") found him suitable for parole under the Elderly Parole Program (Pen. Code, § 3055). Before he could be released, however, the Board determined that Hoze must serve additional sentences for two offenses he committed in prison, consistent with section 1170.1, subdivision (c) (hereafter, section 1170.1(c)). Hoze filed a habeas corpus petition alleging he was entitled to immediate release under the Elderly Parole Program. The trial court granted the petition. We agree with the trial court: Hoze is not required to serve his sentences for in-prison offenses because a grant of parole under section 3055 supersedes section 1170.1(c). We affirm.  

BACKGROUND:

Hoze began serving an indeterminate life sentence in 1980, after he was convicted of attempted kidnapping, assault with a deadly weapon, robbery, vehicle theft, oral copulation, kidnapping with intent to commit robbery, and battery by means of force and violence. While incarcerated, he was convicted of weapon possession in 1981 and again in 1987. Hoze was sentenced to two additional, consecutive prison terms, known as Thompson terms, for the in-prison offenses—three years for the first conviction, and one year for the second. (See In re Thompson (1985) 172 Cal.App.3d 256 (Thompson); § 1170.1(c).) In 2018, the Board granted Hoze parole under the Elderly Parole Program. The Board considered the nature and gravity of Hoze’s offenses, including the in-prison weapons violations. It concluded that based on “the positive adjustments you’ve made over the last decade for sure . . . it was our opinion that based on the positives that you no longer pose a risk of danger to society.” 

While in prison, Hoze participated in vocational training and self-help programs including Alcoholics Anonymous and Narcotics Anonymous, and he received positive work reports from prison staff. The Board explained, “[t]here’s no question in our mind that today as you present in front of us you have matured and that you have grown” and that “your current age of 67 does reduce your recidivism risk.” 

Although the parole decision became final on September 4, 2018, Hoze was not released immediately because the Board concluded that his parole grant did not excuse him from serving his Thompson terms.

 

DISCUSSION:

The issue here is whether the Elderly Parole Program (§ 3055) overrides the requirement, under section 1170.1(c), that an inmate must serve his Thompson term when he would otherwise be released on parole. In its briefs, the Board argued that the program does not override section 1170.1(c). At oral argument, the Board informed us that, in light of the recent legislative amendments to the program (discussed further below), it has modified its position. While the Board does not concede defeat, it agrees that Hoze’s position is reasonable, and it looks to this court for guidance on the issue.

We hold that a parole grant pursuant to section 3055 overrides section 1170.1(c). Hoze is not required to serve his Thompson terms.

 

 

AB 2942 revised California Penal Code (PC) Section 1170(d)(1) - Resentencing - Who can ask?

In February 2018, Assembly member Phil Ting introduced Assembly Bill 2942 (AB2942) along with the bill sponsor, Santa Clara County District Attorney Jeff Rosen. In October 2018, Governor Brown signed Assembly Bill 2942, which became law on January 1, 2019. AB 2942 amended Penal Code section 1170(d)(1) in order to allow the District Attorney (DA) to revisit past sentences to determine whether further confinement is no longer in the interest of justice. When the District Attorney makes this finding, they can now recommend to the court to recall the case and issue a lesser sentence.

In short, Under the revised law, elected DAs now have the right to reevaluate past sentences. If the DA determines that the length of the sentence no longer serves the interests of justice, then they may request and support resentencing for that inmate. A DA in the county in which the inmate was sentenced may bring the request to the county court. The court can then deny or allow the request. (See our prior  BLOG for the LA DA Gascon, which has special directives for resentencing)

If the court agrees to resentence the defendant, it will hold a resentencing hearing. It may provide a new sentence, so long as that term is shorter than the initial sentence. The court is required to follow the Judicial Council’s sentencing rules to mitigate the risk of disparity among sentences.

Who has  Rights to Seek Recalls? (DA, BPH, CDCR, YOU?)

California legislature gave prosecutors (DAs) the power to seek recalls and resentencing.  DAs are normally in the best position to seek fair and effective sentences from the beginning. They also are in a good position to identify inmates who are potentially eligible for resentencing.

The DA will look at the factors (below) to decide which inmates and/or defendants are good candidates.

The LA DA’s Office commits to a comprehensive review of cases where the defendant received a sentence that was inconsistent with the charging and sentencing policies in force after Tuesday, December 8, 2020, at 12:01 AM. In such cases, this Office shall use its powers under Penal Code section 1170(d)(1) to recommend recall and resentencing. While priority shall be given to the cases enumerated below, the ultimate goal shall be to review and re-mediate every sentence that does not comport with the new Sentencing, Enhancement and Juvenile Policies. Specifically, the LA DA’s Office commits to an expedited review of the following categories of cases, which are themselves a subset of a universe of 20,000-30,000 cases with out-of-policy sentences.

● People who have already served 15 years or more;
● People who are currently 60 years of age or older;
● People who are at enhanced risk of COVID-19 infection;
● People who have been recommended for resentencing by CDCR;
● People who are criminalized survivors;
● People who were 17 years of age or younger at the time of the offense and were prosecuted as an adult.

The LA DA  specifically offers the following: At all types of resentencing hearings, filing deputies shall assist the Resentencing Court by setting forth any and all post-conviction factors that support resentencing, including, but not limited to: mitigation evidence; CDCR disciplinary records and record of rehabilitation and positive programming while incarcerated; evidence that reflects whether age, time served, and diminished physical condition, if any, have reduced the risk for future violence; evidence that reflects that circumstances have changed since the original sentencing so that continued incarceration is no longer in the interest of justice; and post-release reentry plans, demonstrating any family or community support that is available upon release. (See e.g. Assembly Bill 1812, Pen. Code § 1170, subd. (d).)

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In addition to the DA,  the Board of Parole Hearings for state prison inmates (BPH - the Board), the county correctional administrator for county jail inmates, and the Secretary of the California Department of Corrections and Rehabilitation (CDCR) may recommend to the court that an inmate’s sentence be reviewed.

If you or a loved one believe YOU should have a new sentence, you may petition CDCR. In June 2018, Governor Jerry Brown instructed CDCR to receive petitions from inmates who believed they deserve to be resentenced based on exceptional conduct during incarceration or a disproportionate punishment for their offense.

The following section describes the four categories that CDCR will review for the potential referral to the Court.

California Code of Regulations (CCR), Title 15, Section 3076 -- Recall of Commitment Recommendation Circumstances.

Pursuant to Penal Code (PC) Section 1170(d)(1), the Agency Secretary of the California Department of Corrections and Rehabilitation (CDCR) or designee may, at any time, recommend that the sentencing court recall an inmate's sentence and commitment previously imposed and resentence an inmate, provided the new sentence is no greater than the initial sentence.

There appears to be currently four (4) categories reviewable for referral to the court for possible recall of sentence: Law Enforcement Agency (LEA) Referrals, Retroactive Changes in Law, Sentencing Discrepancy, and, Exceptional Conduct.

Below are the pertinent sections with the Cal. Code Regs or Penal code reference.

Category 1: Law Enforcement Agency (LEA) Referrals
Responsible Unit: Classification Services Unit (CSU)
Referrals from an outside law enforcement agency (i.e. local or federal law enforcement agency, district attorney's office, judicial officer, etc.).
 

---Legal Authority; Cal. Code Regs. Tit. 15, § 3076.2 - Recommendation Based on a Law Enforcement, Prosecutorial, or Judicial Referral

    (a) No more than 10 business days after receiving a request from the head of a law enforcement agency, head of a prosecutorial agency, or judicial officer asking that the Secretary consider recommending an inmate to a sentencing court pursuant to subdivision (d) of Section 1170 of the Penal Code, the Classification Services Unit shall prepare a Cumulative Case Summary as described in subsection (b)(3)(D) of Section 3076.1 and forward the request and the summary to the Secretary for consideration.

    (b) If the Secretary elects to recommend the inmate for recall and resentencing pursuant to subsections (a)(1), (a)(2), or (a)(3) of Section 3076.1, the Secretary shall, no more than 10 business days after receiving the Cumulative Case Summary, notify the District Attorney of the county that prosecuted the inmate resulting in his or her current incarceration in state prison and forward a copy of the recommendation and Cumulative Case Summary to the District Attorney.

    (c) If the District Attorney indicates his or her intent to recommend the inmate to the sentencing court pursuant to subdivision (d) of Section 1170 of the Penal Code, then the matter shall be considered closed. If the District Attorney does not respond to the Secretary within 10 business days of the Secretary's referral or indicates that he or she will not recommend the inmate to the sentencing court, then the Secretary shall independently recommend the inmate for recall of sentence and resentencing unless any information presented by the District Attorney in response causes the Secretary to reconsider.

Category 2: Retroactive Change-in-Law Referrals
Responsible Unit: Office of Legal Affairs (OLA)
Referrals from the Office of Legal Affairs (OLA) based on new legislation or case law with retroactive application.

Category 3: Sentencing Discrepancy Referrals
Responsible Unit: Case Records
Referrals from Case Records for sentencing discrepancies based on statutory or case law authority. Can be brought by an inmate Appeal, information submitted through the Legal Processing Unit, or OLA.

Category 4: Exceptional Conduct Referrals
Responsible Unit: Classification Services Unit (CSU)
Referrals based on behavior beyond simply complying with all regulations and procedures that demonstrate they have changed as a person and would be a positive asset to the community. Any institution staff or volunteer may provide an inmate's name and CDCR number to the (CSU) for consideration for referral to the court.

Sentencing Impact: Potential for inmates with exceptional behavior to have their sentences recalled, resulting in possible reduction in sentence or release.

 ---Legal Authority: Title 15, Division 3, Section 3076, subdivision (a)

Description: The department's regulations specify that that the Secretary may refer an inmate to the court for resentencing under penal code 1170 (d), when it is evident from the inmate's exceptional behavior that they have changed as a person and would be a positive asset to the community.  The court within 120 days of the date of commitment or anytime upon recommendation of the secretary may recall the sentence and commitment previously ordered and resentence the defendant in the same manner, provided the new sentence is no greater than the original sentence.

 CDCR Screening Criteria Used:

 
    • No condemned inmates
    • No LWOP
    • No 290 registrants
    • No PED or EPRD date within 18 months
    • No Serious RVR's (Rules Violation Report) in the past 5 years
    • No SHU terms in the last 5 years
    • Must have served 10 years or 50% of sentence
    • Laudatory Chrono's and support letters
    • Self-help participation (Vocation, Educational Programs,etc)
    • Education/PIA/Vocational/Work Review
    • County of commitment will be noted
    • 3rd Strike Inmates are eligible
    • Staff and volunteer referral (NOT family members nor Attorneys)
    • Plea agreements may be eligible



COMMENTS:
Despite of it all - It does appear that CDCR has been pro-active. Back at the end of July 2019 CDCR reported, it had made 1,105 recommendations, including over 1,000 in the “retroactive changes in the law” and “sentencing discrepancies” categories. Courts had responded in 670 cases and reduced sentences in 336 cases. The rate of responses and sentence reductions has varied widely from county to county. But it seems clear that a CDCR recommendation for resentencing does not necessarily guarantee that a court will reduce a person’s sentence.

Approximately 1-year ago, (after the Secretary for CDCR was contacted), it was relayed to an attorney by a Captain that cases were being reviewed. Specifically the Captain relayed that between April, 2018, and November, 2019, 127 cases had been submitted by the staff to the Secretary for CDCR. The Secretary had given approval, and sent letters to the Superior Court, in 107 cases, had denied 15 cases, and was still considering the other cases. The Captain further stated that CDCR had set up a special unit to handle staff referrals and that the process was ongoing and the numbers would increase. He also stated that the only referrals that were being accepted by the Special Unit at that time were those coming from staff.

EDITOR’S NOTE: A pro-active strategy may be to present to the DA a resentencing application in conjunction with the Franklin Hearing. Some judges are suggesting to the DAs that they should consider a reduction of sentence (youth offender factors considerations). Thus, the attorney should make sure to obtain the CDCR records as part of the presentation to the Court in conjunction with the Franklin Hearing for a Sentencing recall decision.   

Having the proper CDCR records  may be  a  more productive avenue for resentencing instead of asking CDCR for a recommendation. See CDCR’s own "added" resentenceing factors - as listed above in this Blog.   

People v. Gentille 12/17/20: SB 1437 Bars 2nd degree Murder Under Natural and Probable Consequences Doctrine

 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.   Specifically, SB1437  established a procedure permitting certain qualifying persons who were previously convicted of 1) felony murder or 2) 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.

In the last two years many cases have been filed in all different California Jurisdictions regarding the application of SB1437. In a recent California Supreme Court case [12/17/2020 People v. Gentile, case number S256698] SB 1437 was found to Bar Second degree Murder  convictions Under the Natural and Probable Consequences (NPC) Doctrine.  A unanimous decision: Justice Liu authored the opinion of the Court, in which Chief Justice Cantil-Sakauye and Justices Corrigan, Cuéllar, Kruger, Groban, and Grimes concurred.


 FACT AND PROCEDURAL BACKGROUND:

The case before the CA Supreme Court involves the murder conviction of Joseph Gentile, who was charged in the beating death of a restaurant caretaker in Indio. At trial, the court instructed the jury on three separate theories of first-degree murder, one of which was that he aided and abetted his ex-wife in a felony assault whose natural and probable consequence was death.

In Gentile I, the Court of Appeal observed that the superior court “instructed the jury at length that it could convict defendant of first degree murder” under a natural and probable consequences theory. (Gentile I, supra, E064822.) The court said “[t]he fact the jury did not find that the defendant used a deadly or dangerous weapon in the commission of the offense supports an inference that the jury convicted him on [a natural and probable consequences] theory” instead of viewing him as the direct perpetrator of the crime……….

……The jury then convicted Gentile of first degree murder and found not true that he personally used a deadly weapon. The prosecution dismissed the prison prior, and the court sentenced Gentile to 25 years to life in prison.

The Court of Appeal reversed Gentile’s first-degree murder conviction, and on remand the prosecution reduced his charge to second-degree murder. He was sentenced to 15 years to life in prison.

The court found it “probable that the jury convicted
defendant on an unauthorized legal theory” because the trial
court had instructed the jury on the natural and probable
consequences theory…….

….The Court of Appeal remanded the case for the prosecution to decide whether to “retry [Gentile] for the first degree murder under theories other than natural and probable consequences” or to accept reduction of Gentile’s conviction to second degree murder. (Ibid.) It did not reach Gentile’s other claims. On remand, the prosecution elected to accept a reduction to second degree murder, and Gentile was sentenced to a prison term of 15 years to life.

After the governor signed SB 1437, Gentile appealed again, arguing the bill applied retroactively to his conviction and eliminated second-murder liability under a natural and probable consequences doctrine. An appeals court rejected Gentile’s argument, and the Supreme Court granted review.

COURT’S REASONING:

Under the natural and probable consequences doctrine, an accomplice is guilty not only of the offense they directly aided or abetted, but also of any other offense the direct perpetrator commits that was the “natural and probable consequence” of the crime the accomplice aided and abetted.

Culpability under the doctrine doesn’t require the accomplice to share the direct perpetrator’s intent. SB 1437 thus aimed to make it harder to convict someone for murder when that person didn’t intend to kill or didn’t act with conscious disregard for human life.

The “most natural meaning” of the SB 1437 provision at issue, construed in the context of the bill as a whole and of the Penal Code, “bars a conviction for first or second degree murder under a natural and probable consequences theory,” Justice Goodwin Liu wrote for the Supreme Court.

With SB 1437, the Legislature intended to restrict murder culpability outside the felony murder rule “to persons who personally possess malice aforethought,” Liu wrote, and the natural and probable consequences doctrine “is incompatible with this requirement because an aider and abettor need not personally possess malice, express or implied, to be convicted of second degree murder” under that theory.

“Apart from the Court of Appeal decision in this case, every published Court of Appeal opinion to address the issue has concluded that Senate Bill 1437 eliminates natural and probable consequences liability for murder regardless of degree,” Liu wrote, citing seven appellate cases. “We agree with these authorities.”

SB 1437’s ameliorative provisions, however, don’t apply on direct appeal to nonfinal convictions obtained before the law became effective, such as Gentile’s, the court held. It concluded that such convictions can be challenged on SB 1437 grounds only through a petition filed in the sentencing court under Penal Code section 1170.95.

The court remanded Gentile’s case to the lower court to affirm Gentile’s second-degree murder conviction without prejudice to any petition for relief that he may file under section 1170.95.

Going forward, the parties agree that Gentile has made “a
prima facie showing that he . . . is entitled to relief” (§ 1170.95,
subd. (c)) in light of the Attorney General’s concessions and the
Court of Appeal’s determination in Gentile I that it is “probable”
the jury relied on a natural and probable consequences theory
in finding him guilty of murder. In their section 1170.95 briefing, the parties are free to litigate what bearing, if any, doctrines of estoppel or preclusion may have in light of those prior concessions and the Court of Appeal’s determination in Gentile I.

CONCLUSION"

The judgment of the Court of Appeal is reversed. The matter is remanded to that court to affirm Gentile’s second degree murder conviction without prejudice to any petition for relief that Gentile may file under section 1170.95.


Editor’s OPINION: This is a great outcome from the Published California Supreme Court case. It is a very significant case becasue it determines  that liability for the crime of second degree murder in California under the natural and probable consequences (NPC) doctrine has been eliminated.