Thirteen Year Delay for SVP Trial Unconstitutional?

As the reader of this blog may be well aware, the right to a speedy trial is a right enjoyed by all criminal defendants. However, is a trial to commit a sexually violent predator (SVP) to a civil commitment a criminal or civil proceeding? If it is not a criminal proceeding, is there are due process or equal protection right to a defendant facing such a commitment? What if there is a 13-year delay between the time the prosecution seeks to commit defendant and the actual trial? To read a case that addressed this issue, please click on the following link –

What is Negligent Discharge of a Firearm (PC 246.3)?

Is negligent discharge of a firearm a felony or a misdemeanor? Does one lose one’s Second Amendment rights for life after such a conviction? Is there a mandatory minimum jail or prison term? What are the defenses? To read more about this crime and how it is prosecuted and defended, please click on the following link –

SB 1437 – When May Judge Consider Prelim Transcript?

In the context of a judge determining whether an SB 1437 petitioner has made a prima facie claim for relief, can a judge read over the preliminary hearing transcript? Most people would think no is the answer. However, if the prosecution files an opposition to the petition and says the petitioner is not qualified under 1437 because petitioner was the actual killer, the judge can consider the preliminary transcript to verify the prosecution’s position. To read a summary of a case where this happened, please click on the following link –

Under Wende, Appellate Court Duties after 1437 Denial?

After an indigent defendant files a petition for resentencing under Senate Bill 1437 (Penal Code § 1170.95), there is no duty for an appellate court to conduct an independent review of the record if appointed counsel files a Wende Brief. The Fourth Appellate District held this was so because a 1437 petition is not a first appeal as of right. It is a new right, but not an appeal of the underlying judgment based on a mistake of law at the trial court level. To read more about whey this is so, please click on the following link –

SB 1437 Denied Reversed When No Appointed Counsel on Case.

The following summary of a First Appellate District court ruling demonstrates how the trial court must appoint counsel in an SB 1437 petition for resentencing if petitioner makes a prima facie case of being entitled to relief. The facts of this case are important, as there were many errors by the judge in the proceedings, which we feel, compounded the need for counsel to defend and argue for the petitioner. To read the case summary, please click on the following link –

Is Special Circumstance Finding Disqualifying for SB 1437?

Before 2015, if one was convicted of felony murder or murder under a natural and probable consequences theory and the jury found true the special circumstance that defendant acted as a major participant and/or acted with reckless disregard for human life, this finding does not necessarily disqualify a petitioner from SB 1437 relief. Instead, the trial court must take a closer look under the standards described under Banks and Clark for the terms major participant and reckless indifference to human life. To read a summary of a Second Appellate District Court that held this, please click on the following link –

SB 1437: What is a Major Participant, Reckless Indifference?

The new felony murder rule adopted by California allows a person convicted under a felony murder or natural and probable consequences theory to request resentencing if he or she was not the actual killer, did not act as an aider or abetter in a premeditated killing and did not participate in the crime leading to death as a major participant with reckless indifference to human life. To read what is and is not a major participant and what qualifies as reckless indifference to human life, please click on the following link –

Ineffective Assistance of Counsel Found in Sex Offense Case

It is generally understood that ineffective assistance of counsel (IAC) is often claimed, but rarely proven according to the legal standard required. However, the following article shows a case where it was proven, on facts that really cannot be disputed. In a way, this article really only enforces how difficult it it to prevail on a claim of IAC. To read the article, please click on the following link –

Can One Request Sealing After a Prop 36 Dismissal? No.

It may come as a surprise to some that one can request sealing after successful completion of PC 1000, but not Prop 36. We think this is somewhat intuitive when one appreciates that under Prop 36, one must enter a no contest or guilty plea to participate in the program and such participation is usually because one is no longer eligible for PC 1000. It also merits mention that one does not regain one’s firearm rights after Prop 36. To read a summary about a Fifth Appellate District case that challenged the denial of a sealing petition after completing Prop 36, please click on the following link –

Under Immigration Law, Is Perjury an Aggravated Felony?

While one would not be wrong to observe that an aggravated felony under federal immigration law often involves violence or serious harm, it may surprise the reader to know that perjury under California Penal Code § 118 is an aggravated felony, meaning such a conviction makes one removable, ineligible for asylum and ineligible for cancellation of removal. The U.S. Ninth Circuit Court of Appeals in Pasadena came to this ruling using the categorical approach to evaluating this issue. To read a summary of its ruling, please click on the following link –