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 –

What is Sufficient Evidence to Prove PC § 186.22(a)?

A conviction for active participation in a street gang (Penal Code § 186.22(a)) requires that the prosecutor show and the jury find that defendant “promotes, furthers or assists” in criminal conduct by members of a gang in committing a crime. If the crime is a serious or violent felony, then defendant faces a ten-years sentence enhancement. If the crime is not a serious or violent felony, then a 2, 3 or 4 year sentence enhancement applies. But what type of evidence of active participation is enough? To read a summary of a recent appellate court ruling that considered this issue, please click on the following link –

Under SB 1437, How Do Jury Instructions Apply?

If one is potentially eligible for resentencing under Senate Bill 1437 (Penal Code § 1170.95), why would a judge be interested in knowing what the jury instructions said? The answer is because the jury instructions state how a jury must find a conviction and in the following case, the jury instructions showed defendant was not convicted under the old felony murder rule as an aider and abettor, but as an aider and abetter of the killer of another. To read more about the specifics of this case, please click on the following link –

When Can 911 Call Provide Sufficient Reasonable Suspicion?

A 911 call alone can provide sufficient reasonable suspicion to arrest suspects when the caller provides, under the totality of the circumstances, “sufficient indicia of reliability” and provide information about potential serious illegal activity. This commonly is associated with “I see a man with a gun” and a description of the man’s demeanor and apparent criminal intent to commit a serious crimes. To read a summary of a recent appellate court decision where this was the threshold issue, please click on the following link –

According to the NHTSA, What Type of Driving is DUI?

According to the National Highway Traffic Safety Administration (NHTSA), there are certain kinds of driving that are commonly associated with driving under the influence (DUI). Speeding is not one of the types of driving, it may surprise many. To read about the other types of driving that are most commonly associated with DUI, please click on the following link –

What is the Horizontal Gaze Nystagmus Test in a DUI?

The Horizontal Gaze Nystagmus (or HGN) test, one of the field sobriety tests often administered by police officers investigating a DUI, is a test that many regard as quite reliable because a suspect really cannot train himself or herself to pass the test, unlike may of the balance tests that may be passed by someone who follows a fitness routine that emphasizes balance skills or is a former gymnast. However, the HGN’s reliability is not sacrosanct. For example, if one had a prior head injury, the test results can be meaningless. To read more about the test, please click on the following link –

California Supreme Court & Mental Health Diversion

In June, 2020, the California Supreme Court affirmed a Fourth Appellate District ruling that a judge still has discretion to impose Mental Health after a conviction, but before it becomes final, i.e. after the 30 or 60 day period to appeal has expired. It is not limited in availability to only the pre-trial phase of a case. To read more about this limited retroactivity, please click on the following link –

Motion to Suppress in an Infraction – What Happens?

In the following summary of a San Diego case for underage possession of alcohol in a public place, San Diego police officers stopped two college-aged girls and poured out clear liquid from plastic bottles labeled Arrowhead and Brisk. The police then issued tickets and the girls later each filed a motion to suppress evidence, which the People did not oppose in writing or even show up in court to oppose. Instead, the People sent the two police officers who issued the citations. The court granted the motions and dismissed the cases. The People appealed. To read more on how the case was ultimately treated, please click on the following link –

What Conditions Allow Deadly Force in Self Defense?

The use of deadly force in self defense can be legal in very limited circumstances. It is usually in excess of the scope of self-defense allowed. However, to read an article that explains when deadly force might be allowed in self-defense, please click on the following link –