Banks and Clark Analysis in Unarmed Assault, Robbery

The following summary of a California Supreme Court ruling reversing a finding by a jury that a person acted with reckless indifference to human life is rich in analysis of what facts support a finding of reckless indifference to human life. Citing to Tison v. Arizona, a 1987 U.S. Supreme Court case involving reckless indifference to human life, the California Supreme Court added meaning to the reckless indifference factors listed in Banks. To read more about the California Supreme Court ruling, please click on the following link –

Convicted Twice for Once Carrying a Concealed Firearm?

The titled to this blog entry suggests a clear violation of the constitutional bar against double jeopardy. After all, one cannot be convicted of two crimes if the crimes merely described the same conduct in different ways, which is particularly prevalent in the context of firearm laws. However, not all prosecutors or judges prevent this from happening. To read a summary of a case where this problem arose and went to the appellate court for corrective action, please click on the following link –

Did SB 1437 Unconstitutionally Amend Proposition 7?

It is a popular, although incorrect, argument by the district attorney, in opposing a petition for resentencing under SB 1437, that the judge cannot resentence defendant because SB 1437 is an unconstitutional amendment to Proposition 7. The argument has some academic and intellectual allure, but is fundamentally incorrect. Nonetheless, many prosecutors persist in making this argument. To read how one appellate court handled this misguided argument, please click on the following link –

SVP Act Allows Judge to Consider Hearsay from Expert?

At the probable cause hearing after a prosecutor files a commitment petition, based on a recommendation from the Department of Corrections and Rehabilitation, as well as the Director of State Hospitals, a superior court judge may consider the police report(s) and mental evaluations concerning defendant, which are hearsay, under an exception to the hearsay rule. To read more about the SVP commitment process, please click on the following link –

Pandering: Is “Procure” Unconstitutionally Vague?

Penal Code § 266i(a)(5) defines pandering. In the words of the definition, defendant must “procure” another person for purposes of prostitution. Caselaw has given further clarity to this crime, stating one is guilty of it if one acts with the specific intent or goal to “persuade, encourage or otherwise influence another person to become a prostitute.” No monetary gain is required, in contrast to the related offense of pimping. To read more about pandering, please click o the following link –

When Is a Certificate of Probable Cause Unnecessary?

As the reader of this blog may be well aware, one may not file an appeal of a conviction if one entered into the conviction by plea bargain unless the court first approves a certificate of probable cause for the appeal (Penal Code § 1237.5). This makes sense. However, what if the Secretary of the Department of Corrections and Rehabilitation notices an error in the sentence and recommends resentencing to correct the error? Is a certificate of probable cause then required? To read a summary of a recent opinion that addressed this issue, please click on the following link –

SB 1437: Felony Murder Charges, Manslaughter Conviction?

Is resentencing under Penal Code § 1170.95 (SB 1437) if someone is charged with murder, but then convicted of manslaughter? Can a judge resentence that person? The answer is perhaps not as clear cut as one might first assume. After all the statute applies to those who are convicted of first or second degree murder, “and those who accepted a plea in lieu of trial at which petitioner could have been convicted of first or second degree murder.” So if the plea was to manslaughter (or attempted murder or assault with a deadly weapon), it seems 1437 would apply. To read how the First Appellate District Court of Appeal responded to this argument, please click on the following link –

Police Decoy Use Prevents PC § 313.1 Conviction.

Sending harmful material to a minor, a violation of Penal Code § 313.1, is impossible to violate if defendant transmits such material (often involving nudity) to a police decoy who is over 18, but who poses as a minor being under 18. This interesting ruling exemplifies a contrast between 313.1 and Penal Code § 288.4(a) and Penal Code § 288.4(b), which the appellate court explained primarily as saying 313.1’s scope does not include attempts, whereas 288.4(a) and 288.4(b) do. To read more about this interesting distinction, please click on the following link –

SB 1437 Petition Denied in Kidnapping & Robbery Case.

It is helpful to better understand Senate Bill 1437 by reading appellate court rulings that deny relief, as such ruling help one better understand the limits of resentencing under Penal Code § 1170.95. The following summary of a recent Second Appellate District Court ruling involves a person convicted of first-degree murder with a finding by the jury of express malice. Defendant nonetheless sought 1437 relief and submitted a form falsely stating he was convicted under a felony murder or natural and probable consequences theory. The judge then summarily denied the petition after he examined the underlying conviction. The defendant appealed (we think somewhat disingenuously, as he knew he was not qualified, but persisted in attempting to at least have counsel appointed to help him). To read how the Second Appellate District ruled, please click on the following link –

How Does the Vienna Convention Apply in an Arrest?

If an arrestee is a foreign national, law enforcement is supposed to supposed to inform the arrestee of that person’s right to have his or her consulate notified of his or her arrest, booking and detention. People v. Leon (2020) 8 Cal.5th 831, 845. Our office has never seen this take place, but the case of People v. Eduardo David Vargas recently put this to the test. Vargas was sentenced to death for first-degree murder with gang allegations and on appeal, sought to have his conviction vacated on many grounds, one of which was failure to notify his consulate, as Vargas was a Mexcican national. To read how the appellate court ruled on this issue, please click on the following link –