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 –

What is Vehicle Code § 23247(e) – Defenses and Punishment?

Vehicle Code § 23247(e) makes it a crime for someone issued a restricted driver’s license following a DUI conviction to operate a motor vehicle without a functioning ignition interlock device (IID). The punishment is up to six months in county jail and a court fine of up to $5,000, plus penalties and assessments. The DMV will also terminate the restricted license and suspend the driver’s driving privileges. To read more about this offense and the defenses, please click on the following link –

Example of Aider and Abettor Denied Relief under SB 1437 (PC 1170.95)

The following summary involves a murder-for-hire case out of the Compton Courthouse in the courtroom of Judge Lonergan. One of the two defendants accepted a plea bargain to second degree murder and attempted murder in 2005. After SB 1437 became law, he sought resentencing and Judge Lonergan denied the petition, apparently based on a stipulation by defense counsel to the facts of the case. The Second Appellate District then affirmed this ruling. To read more about this, please click on the following link –

In a Capital Case, Can Jurors Have an Objection to the Death Penalty?

If a juror personally opposes sentencing someone to death, can he or she still serve on a jury in a capital case where he or she may decide on such a penalty? Is that person’s personal beliefs cause for being disqualified as a juror? If so, does the prosecution enjoy unlimited excusals for cause if this is the case? If such personal beliefs are not disqualifying, why not? To read a summary of a recent appellate court ruling wherein this issue was decided, please click on the following link –

Is There a Wende Right if the Court Denied the First Appeal?

The following involves a murder and arson conviction in the Long Beach Superior Court. Defendant was the actual killer, but filed an SB 1437 petition for resentencing under Penal Code § 1170.95. Judge Jesse Rodriguez properly denied the petition because Defendant was the actual killer. Defendant then appealed the ruling to the Second Appellate District and counsel was appointed, who filed a Wende brief, stating there was no appealable issue. Defendant then appealed to the California Supreme Court, which did not appoint counsel for Defendant and Defendant appealed that ruling. To find out if the California Supreme Court was correct, please click on the following link –

Conspiracy to Commit Murder for Benefit of Gang Reversed on Appeal.

When gang activities are evaluated, it is not uncommon for verdicts and sentencing to be based on insufficient evidence because gang activities are publicly disfavored without question. In other words, the burden of proof is not rigorously followed and a lower standard is often implicitly applied. This is what the following case out of San Diego exemplified when the Fourth Appellate District evaluated the evidence. To read about this case, please click on the following link –

Does Penal Code § 1170.91 Apply if There is a Stipulated Sentence?

Some may think of Penal Code § 1170.91 as the Franklin Hearing equivalent for military members sentenced before 2015. The analogy is a bit inaccurate because in a Franklin Hearing, one is not resentenced, but under § 1170.91, the judge actually resentences defendant, presumably to a short sentence, one that may even include time served. What if the plea bargain entered in to by a military veteran or active duty military member was a stipulated sentence? Can the defendant still ask for resentencing? To read the answer, please click on the following link –