Sex Offender Excluded from Prop 57 Parole Eligibility?

Nonviolent sex offenders cannot be excluded from early parole consideration under Prop 57, a recent Third Appellate District opinion states. The California Department of Corrections and Rehabilitation (CDCR) had excluded anyone who was a 290 registrant or would be required to so register under Penal Code 290, but this was challenged and found improper. The CDCR then appealed and lost. To read a short summary of this ruling, please click on the following link –

Is Failure to Testify Overt Act, Accessory After Fact?

If one is subpoenaed to court or is a co-defendant with others in a case, can asserting one’s Fifth Amendment right against self-incrimination, even if ordered to testify by a judge, be considered acting as an accessory after the fact (i.e. an attempt to help another succeed in the commission of the crime)? Can refusing to testify, when ordered to testify, be not only contempt, but the crime of being an accessory after the fact – to murder? The answer is yes, as the following summary of a reported decision from Los Angeles exemplifies –

When is Enhanced Sentence Proper Under PC 647.6(c)(2)?

Penal Code § 647.6(c)(2) prohibits annoying or molesting a child under 18. In sentencing someone under this section, the presumed sentence is a minimum prison term or 16 month, a mid-term sentence of two years and a high-term sentence of three years unless the individual has certain a prior conviction that allow a low term sentence of two years, a mid-term sentence of four years and a maximum sentence of six years. In the case summarize below, the defendant did have such a prior conviction, permitting the trial court to sentence defendant to four years, which defendant appealed, arguing that the statute was misinterpreted by the judge. The summary thus serves as a good tutorial on how and when an enhanced sentence is allowed. To read more about the appeal, please click on the following link –

Is Relief Under SB1437 Automatic? Must One Ask for It?

Resentencing under Senate Bill 1437 is not automatic. One who believes he or she is eligible must file a petition for resentencing which is then reviewed by a judge and if a “prima facie” case is established, then counsel, if not retained already by defendant, is appointed if requested. The prosecution can then file an opposition to the resentencing petition, to which defendant can file a reply to respond to the prosecution’s opposition. To read more about resentencing under the new felony murder rule, please click on the following link –

Requirements for Murder Special Circumstance Sentence?

In the context of many appellate court decision recently reviewing a ruling (often a denial) of a petition for resentencing under Penal Code § 1170.95 (Senate Bill 1437), a defendant may have been found guilty of murder with a special circumstance finding by the jury. What is a special circumstance finding? What must the jury find? Is such a finding for an aider and abetter possible and if so, is that disqualifying from 1437 resentencing? To read more about murder special circumstances, please click on the following link –

Mental Health Diversion Retroactivity Not Intended

It is not uncommon for someone to call us about a son or daughter who is currently in prison and to tell us that their child’s attorney never asked the judge to consider the mental illness of the child and that had the judge or prosecutor fully known about the mental illness or condition, there would have been a very different outcome. We then ask when their loved one went to prison and it is six years earlier. Is mental health diversion retroactive in such a case? To read a case summary that addresses this issue, please click on the following link –

How’s a Juvenile Carjacking Adjudication Not a Strike?

As counterintuitive as it may seem, carjacking is not a strike for a juvenile at age 16 or older unless it is committed with the use of a weapon. As an adult, no weapon is required to make it a strike. This little-known distinction was illuminated in the following case, which we summarize below. To read our summary of the published opinion, please click on the following link –

What is a Youth Offender Parole Hearing Under P.C. 3051

In the course of discussing Franklin Hearings, we often must explain what a youth offender parole hearing is, as many people believe a Franklin Hearing is a resentencing opportunity and a kind judge may release their loved one, perhaps even from court at the hearing. This is not what happens in a Franklin Hearing. Instead, materials are added to the defendant’s file for review at a Youth Offender Parole Hearing, which the article accessible by the following link discusses –

What is the Auto-Brewery Syndrome – A DUI Defense?

It may come as a great surprise to a DUI defendant that a part of their blood alcohol content was created by their own body’s conversion of non-alcoholic items into ethanol. While this is a rare phenomena, it does take place and sometimes, the effects can mimic intoxication by drinking alcohol. To read more about the auto-brewery syndrome, click on the following link –

What is the Difference Between Expungement and Sealing?

Almost every day, we speak with people who believe expungement (Penal Code § 1203.4) removes all record of a case from one’s file. In clarifying that this is not so, we often describe a petition to seal and destroy a police report or court file (Penal Code § 851.91), which does remove mention of a case filing from one’s record. However, if one is eligible for expungement, that person is ineligible for sealing and destroying. To read more about the differences between expungement and sealing, please click on the following link –