Change of Venue Based on Heinous Crimes Alleged?

In the following summary of a recent death penalty case, defendant filed a motion for a change of venue, presenting the judge with approximately 20 news articles about his horrific crimes and a declaration from an expert that based on the extensive local media coverage, defendant would not receive a fair trial. The motion was well-written and yet, the judge denied it. On automatic appeal of the death sentence to the California Supreme Court, this issue was reviewed. How did the California Supreme Court rule on this motion on appeal? To read the answer, please click on the following link –

Juror Off Jury if Reservations about the Death Penalty?

In a death penalty case, it may seem that all jurors must be capable of imposing the death penalty if the evidence supports such a sentence. If during voir dire it is established through questions and answers that a juror believes that the death penalty is immoral or unethical, can that person still serve on a jury? The answer is yes if that person agrees to follow the jury instructions despite such misgivings. To read more about his issue, please click on the following link –

Do Prop 57 and SB 1391 Apply in 1170(d) Resentencing?

Yes is the answer to the question posed in the title of this blog entry. Senate Bill 620 would also possibly apply because the sentence is no longer final, so the normal rule against retroactive application of the law to a final sentence no longer applies. To read about a very lucky young man, age 15 when convicted, who the CDCR recommended that the judge resentence, please click on the following link –

Certificate of Probable Cause Unnecessary for PC 1001.36

In challenging a sentence and arguing that defendant should have instead been referred to Mental Health Diversion under Penal Code § 1001.36, a certificate of probable cause for the appeal is not necessary because defendant was not challenging the plea itself for legal error, but only the terms. Consequently, the appellate court ruled that defendant did not need a certificate of probable cause because the challenge instead was for ineffective assistance of counsel (IAC). To read more about this opinion, please click on the following link –

SB 620: Can Judge Impose Lesser Enhancement if True?

Yes is the answer to the question posed in the title to this blog post. However, the statute only states that the judge may strike the gun enhancement. But the statute is silent about the judge then imposing a shorter gun enhancement if the facts make such an enhancement true. To read more about this, please click on the following link –

What is Required for Franklin Evidence Preservation?

To establish one’s eligibility for a Franklin evidence preservation or file augmentation, one must show that he or she is eligible for a Youth Offender Parole Hearing under Penal Code § 3051 and that when defendant was sentenced, he or she did not have an opportunity to present evidence in mitigation related to his or her youthfulness. To show eligibility under 3051, one must establish that he or she committed the controlling offense at the age of 25 or younger, that the sentence is the functional equivalent of life in prison and that he or she was not otherwise over 18 and sentenced to an LWOP sentence or sentenced under the One Strike Law or the Three Strikes Law. To read more about Franklin motions and Franklin Hearings, please click on the following link –

PC 1473.7 Motion to Vacate Grounds: Defendant’s Own Error?

Can a person claim there is an error of constitutional magnitude in a conviction based on his or her own wrong? Would not that be taking advantage of his own wrong? Well, the appellate court has found that when a non-citizen is too intimidated to ask her attorney about the immigration consequences of a plea and then enters that plea, this can suffice as grounds to later vacate the plea. To read more about the facts of this interesting case, please click on the following link –

New Two-Year Felony Probation Period Applied to a Drug Case

Assembly Bill 1950 has been determined to apply retroactively to those on probation when the bill was passed. This meant, as in the case summarized one can read by clicking on the following link, that someone placed on three years of formal probation will see that probation decreased to two years, which could even end probation if that person had already completed two years if the offense was eligible under 1950 (certain violent and serious felonies are not, as well as other offenses with a specified probation period such as DUI and domestic violence). To read more about AB 1950, please click on the following link –

Is the New Two-Year Felony Probation Law Retroactive?

Yes is the answer to the question posed in the title to this blog entry, although we caution the reader to remember that not all felonies are limited to two years of probation. For example, if the case is a felony DUI or it is an offense listed under Penal Code § 667.5(c) (violent felonies), theft involving over $25,000 in value, or any other felony wherein the period of probation is specified. To read more about this new law, please click on the following link –

Enhancement for Being Armed with a Firearm – Sentencing

When one is sentenced for convictions that include misdemeanors and felonies with a gun enhancement that do not fall under AB 109 (Penal Code § 1170(h), one must serve the entire term in state prison. One does not, for example, serve part of the time in county jail and part of the time in state prison. When a gun enhancement is imposed on a subordinate term of the sentence, the court will apply one-third of the enhancement (either lower, middle, or upper term) consecutive to the sentence. For more examples of how a gun enhancement is applied to a sentence, please click on the following link –