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.