SB 1437: Unconstitutional by Amending PC §§ 188, 189?

There is a wide-spread, even earnest misunderstanding among many District Attorneys and many judges that because Proposition 7 and Proposition 115, both voter initiatives, amended Penal Code section 188 and 189, Senate Bill 1437 was an unconstitutional change to these two statutes. The belief that SB 1437 improperly modified the felony murder rule is academically and intellectually clever, but incorrect, as the Fourth Appellate District held in the following case summarized below. To read the summary, please click on the following link –

Under SB 1437, When Must the Judge Appoint Free Counsel?

The judge assigned to rule on a petition for resentencing under the new felony murder rule (SB 1437) must appoint counsel for petitioner if the judge finds petitioner has made a prima facie showing of entitlement to relief. How does a person, without an attorney, make a prima facie showing of entitlement to relief? The answer is that one needs to simply “check a few boxes” on the form SB 1437 petition, but the judge can look into the representations to see if the petitioner is telling the truth. To read more about getting counsel appointed for free, please click on the following article –

Can SB 1437 Apply to Murder When a Provocative Act?

In the short time since Senate Bill 1437 was passed, we have received dozens of calls from well-wishing and concerned family members of those in custody who think it applies to any murder. Inmates themselves also call us through three-way calls arranged by loved ones and ask questions that show they assume it applies to any murder whatsoever. The following summary exemplifies the limited scope of relief intended in SB 1437 by discussing a recent Second Appellate District Court decision wherein defendant was found to have committed murder based on the provocative act doctrine. This did not apply to SB 1437 resentencing. To read why not, please click on the following link –

SB 620 – When Can a Judge Strike the Gun Enhancement?

A judge may strike the sentencing enhancement applicable under Penal Code § 12022.53 for use of a firearm in the commission of a crime “in the interest of justice” under Penal Code § 1385, assuming he sentence in the case is not final. This new power is allowed and given to a judge under Senate Bill 620. Facts that may persuade the judge to find striking the enhancement is the interest of justice may include defendant’s youth, being handed the gun by another person just moments before the crime took place, or a mistaken belief that the gun was empty when it was in fact loaded. To read more about SB 620, please click on the following link to read a summary of a recent case interpreting this new law –

AB 1076 – What Does This New Law Provide and When?

Assembly Bill (AB) 1076 provides for a new automatic expungement right, removing the need to affirmatively seek expungement, for all arrests and convictions taking place on or after January 1, 2021, wherein the person successfully completed probation, “for all misdemeanor offenses” (apparently including 290 registrable misdemeanors?) and non-violent felonies (what about serious felonies?) for those folks who are also not facing a pending charge, on probation in another case, or on parole or in custody. We are very curious to see how this new law operates, as it seems to allow expungement without charging the filing fee for this, which is good, but it may inadvertently expunge certain convictions that presently are excluded from such relief. To read more about this new law, please click on the following link –

Domestic Violence: What Qualifies as a Dating Relationship?

It is quite common in a domestic violence case for two people who used to be dating to somehow meet up again, perhaps just to discuss something like the return of property or child custody, but end up fighting and one of the two is charged with violating Penal Code §§ 273.5 or 243(e)(1), “battery upon someone with whom the person had a dating relationship.” What qualifies as a dating relationship? What if the two just had a one-night stand? What if the relationship ended ten years ago? Does this “relationship” still qualify as a “dating relationship” under domestic violence law? To read answers to these questions, please click on the following article –

Is Probation Condition Overbroad if No Social Media?

Does the First Amendment right to freedom of speech prevent a probation condition that would bar any access to social media? No is the clear answer because one may waive certain rights for the privilege of being on probation, rather than in jail or prison. However, when can such a probation condition be inappropriate or improper? What are the rules or standards? To find out the answer, please click on the following link –

SB 1437 – Jury’s Pre-Banks / Clark Findings Reliable?

Before People v. Banks was ruled upon in 2015, redefining what constituted acting “with reckless disregard for human life” and People v. Clark in 2016 by redefining more narrowly who is a “major participant” in a crime, juries were asked to find this in trials that led to certain sentencing enhancements. Under Senate Bill (SB) 1437, the defendant is excluded from relief if he or she may not have been the actual killer, or did not have the intent to kill, but acted as a major participant with reckless disregard for human life. To find out if the earlier, broader definitions of major participant and reckless disregard are binding post-Banks and Clark, please click on the following link –

When is a Threat Under PC § 69 Not to be Believed?

Sometimes, a threat is stated that no reasonable person would believe. When such a threat is made, often in jest or frustration, it cannot reasonably be considered a true threat, so it is not a crime. Instead, such “crazy talk” is protected speech under the First Amendment. To read an example of such a threat that an appellate court considered protected speech and not a crime, please click on the following link –

Example of Judge Denying Bail, No Abuse of Discretion

When can a judge deny a defendant the right to post bail to be released from jail prior to a case being resolved? As the following article explains, besides in cases of capital murder, the judge must find by “clear and convincing evidence that there is a substantial likelihood that the person’s release would result in great bodily harm to others.” What does this mean? What are some examples of a judge finding this? To read about a case where a judge found this to exist, please click on the following link –