The following article summarizes a 2020 appellate court opinion from the Sixth District that states a murder conviction can be preserved in response to an SB 1437 petition if the prosecution can still prove murder beyond a reasonable doubt under a theory not used at trial. While some may regard this opinion as unfair because the prosecution did not proceed against defendant using this theory originally, the appellate court held it was permissible in response to a petition for resentencing. To read more about this opinion, which we think is applauded by prosecutors and victims’ families as a way to preserve a sense of justice, please click on the following link – https://www.greghillassociates.com/sb-1437-denial-if-current-law-supports-murder.html
Month: October 2021
Does Dissuading a Witness (P.C. § 136.1) Apply to Future Crimes?
The answer to the question posed in the title to this blog entry is no. The factual background giving context of the ruling by the First Appellate District affirming the trial court ruling is really quite sad and we venture to comment, probably not too uncommon, especially with new, young attorneys. To read about this careful and narrow interpretation of Penal Code § 136.1, please click on the following link – https://www.greghillassociates.com/does-dissuading-a-witness-pc-136-1-apply-to-future-crimes.html
SB 1437 – Conviction Under Actual Implied Malice?
As described in the article linked at the end, someone who is convicted of second degree murder for a DUI that kills another person is convicted under an implied malice theory. Implied malice is distinguishable from a natural and probable consequences theory, but the following summary explains why in the context of why Senate Bill 1437 does not apply to a DUI fatality (besides the obvious issue that disqualifies defendant because he actually killed the victim). To read more about why a DUI fatality will never find traction under SB 1437, please click on the following link – https://www.greghillassociates.com/sb-1437-conviction-under-actual-implied-malice.html
Penal Code § 148(a)(1) as a Lesser-Included Offense of § 69?
Penal Code § 148(a)(1) prohibits one from obstructing, delaying or resisting a police officer or fireman in performance of one’s duties. Penal Code § 69 is resisting arrest by a police officer and causing injury to the officer. Consequently, it would not seem that § 148(a)(1) is a lesser-included offense of § 69, but the following appellate court ruling shows it is not quite so easy to conclude this. To read a summary of a recent appellate court ruling that discussed this issue, please click on the following link – https://www.greghillassociates.com/penal-code-148-a-1-as-lesser-included-offense-of-69.html
Senate Bill 1393: When Does Judge Abuse Discretion?
Senate Bill 1393 amended Penal Code § 1385(b)(1) to give judges the discretion to strike the otherwise mandatory five-year sentence enhancement applicable for a prior serious felony enhancement. In the summary of a recent appellate court ruling, the appellate court affirmed the trial court’s refusal to strike a five-year prior serious felony enhancement, agreeing that the defendant’s lengthy criminal history court not be ignored or minimized, particularly where the latest conviction also involved significant violence. To read the summary, please click on on the following link – https://www.greghillassociates.com/senate-bill-1393-when-does-judge-abuse-discretion.html
Psychological Coercion Can Be Duress in Forcible Sex Case.
The following summary exemplifies the worst type of sexual abuse situation that our laws strain to prevent: an adult in power abusing his or her age and position to full effect to receive sexual favors from a much younger person. While no physical force was used, psychological coercion certainly was, making it a forcible sex case punishable by the heaviest sentences available. To read about the tragic facts of this case and the new law that it ushered in, please click on the following link – https://www.greghillassociates.com/psychological-coercion-can-be-duress-in-forcible-sex-case.html
Immigration: Is Amended Penal Code § 18.5 Retroactive?
Penal Code § 18.5 was recently amended to change the maximum confinement period for a misdemeanor to “not to exceed 364 days,” which has special significance in how an immigration court regards a sentence for removal or deportation purposes. Yet is the amended § 18.5 applicable to sentences ten years ago? The answer appears to be no, unfortunately, as the following summary of a recent appellate court decision explains. To read the summary, please click on the following link – https://www.greghillassociates.com/immigration-is-amended-penal-code-18-5-retroactive.html
What’s Primary Caregiver Diversion (Penal Code § 1001.83)?
Primary caregiver diversion? Does that mean if you are a mom or dad of a child under 18 or maybe a caregiver for an elderly, dependent adult, diversion is available as a way of resolving a criminal case? Even felonies? What are the exceptions? Is this available in Los Angeles County? What happens at the end of the diversion period? To read more about this program, please click on the following link – https://www.greghillassociates.com/whats-primary-caregiver-diversion-penal-code-1001-83_1.html
Can Prop 57 Apply if Defendant Resentenced on Appeal?
The juvenile case direct filing prohibitions contained in Proposition 57 (Prop 57) can apply if a defendant’s appeal is granted on other sentencing issues, as the following case summary explains. The key to this opinion is that once resentencing is allowed, the sentence is no longer final and the bar against retroactive application of Prop 57 to final sentences no longer applies. However, as the following summary exemplifies, just because the case must be refiled in juvenile court does not necessarily mean it will remain in juvenile court, as it can be then re-transferred to adult court. To read more about this “loophole” to the bar against retroactive application of Prop 57 to final sentences, please click on the following link – https://www.greghillassociates.com/can-prop-57-apply-if-defendant-resentenced-on-appeal.html
Prejudicial Error Committed by Denying Right to be Present?
There is a general rule that in felony cases, the accused must be present at all “critical phases” of the case. The following case involves a civil commitment proceeding for a person alleged to be too dangerous to others to release on parole. In the pretrial proceedings, Patton State Hospital failed to transport the defendant to court as ordered and the judge ruled in his absence that defendant waived his right to a jury trial. On appeal of this ruling, which defendant claimed was a violation of his right to be present for such a determination. The Second Appellate District agreed with defendant. To read more about this ruling, please click on the following link – https://www.greghillassociates.com/prejudicial-error-committed-by-denying-right-to-be-present.html