A judge does not have the power to modify the terms or conditions of parole without a pending parole violation or a pending parole revocation hearing. The CDCR has the exclusive power to do this, not a judge once the defendant enters the CDCR. To read more about a case that put this to the test in the context of a sex offender residency restriction for someone on parole, please click on the following link – https://www.greghillassociates.com/may-a-trial-court-judge-modify-a-parole-condition.html
Month: December 2022
Judge Finds Defendant a Major Participant in Robberies
In the following summary, the Third Appellate District found that, contrary to defendant’s assertion that he was “just the getaway driver,” defendant was really a “major participant” in a murder and that defendant acted with “reckless indifference for human life.” The appellate court thus affirmed the trial court that denied defendant’s petition for resentencing under SB 1437 (Penal Code § 1172.6 (former § 1170.95)). To read a summary of the appellate opinion, please click on the following link – https://www.greghillassociates.com/judge-finds-defendant-was-a-major-participant-in-robberies.html
The Criminal Defense Attorney, Immigration Advice Duty
Under California Penal Code § 1016.3, a criminal defense attorney must provide the client who is not a U.S. citizen with affirmative and competent counsel regarding the adverse immigration consequences of a plea in the case. We at Greg Hill & Associates believe counsel should also attempt to negotiate an immigration-neutral plea bargain to avoid such consequences if the original charge or charges involve an aggravated felony or a crime involving moral turpitude. To read more about this issue, please click on the following link – https://www.greghillassociates.com/the-criminal-defense-attorney-immigration-advice-duty.html
Felony DUI Under Vehicle Code § 23152 – Requirements?
A person may be charged with felony DUI if one is arrested for a fourth time for DUI within the last ten years and in the prior three arrests, that person suffered a conviction for DUI or for a “wet reckless” (Vehicle Code § 23103 pursuant to § 23103.5). There is no requirement that the fourth arrest result from injuries to anyone else or even a traffic accident. To read more about felony DUI under Vehicle Code § 23152, please click on the following link –https://www.greghillassociates.com/felony-dui-under-vehicle-code-23152-requirements.html
Criminal Threats When Immediate Family Member is the Target
When criminal threats are uttered such that a family member has a reasonable and sustained fear of imminent and serious harm to an immediate family member, five things must exist for the jury to convict defendant. The following summary exemplifies a case where this was established at the preliminary hearing at least to hold over the case. To read about the five requirements, please click on the following link – https://www.greghillassociates.com/criminal-threats-when-immediate-family-member-target.html
Prop 57 Early Parole Consideration & CDCR Discretion
The CDCR does have discretion in how early parole consideration under Prop 57 is applied, particularly where, as the following summary explains, the prisoner is serving time for a violent and an non-violent offense conviction. To read more about how the CDCR may apply or not apply Prop 57 to such prisoners, please click on the following link – https://www.greghillassociates.com/prop-57-early-parole-consideration-cdcr-discretion.html
What Exactly Is and Is Not Circumstantial Evidence?
CALCRIM 224 is the jury instruction telling the jury how to apply circumstantial evidence to a finding of defendant’s level of guilt, not guilt or innocence, as a recent appellate court ruling in a fatal car accident case exemplified. To read how the appellate court ruled CALCRIM 224 must be applied, please click on the following link – https://www.greghillassociates.com/what-exactly-is-and-is-not-circumstantial-evidence.html
Does Felony Murder Special Circumstance Bar SB 1437 Relief?
The Banks and Clark rulings gave clearer definitions of what conduct by a defendant demonstrates being a major participant or acting with reckless disregard for human life. Therefore, a murder conviction wherein defendant was not the actual killer, but wherein the jury found true special circumstances is not dispositive of SB 1437 relief and the case must be remanded for further evaluation under Banks and Clark. To read a summary of a recent case with this ruling, please click on the following link – https://www.greghillassociates.com/does-felony-murder-special-circumstance-bar-sb-1437-relief_1.html
Custodial Interrogation of a Minor at His Home
Sometimes, an interview by police of a suspect requires Miranda warnings due to the totality of the circumstances. What circumstances can, taken in their totality, merit Miranda warnings be given to defendant? The following case involved police interviewing a suspect at his home without handcuffs or any restraints, but the admissions by defendant were excluded for being elicited in violation of defendant’s Fifth Amendment rights. To read a short summary of the case, please click on the following link – https://www.greghillassociates.com/custodial-interrogation-of-a-minor-at-his-home.html
Withdrawal of Plea in Federal Court is Difficult
In the following federal health care fraud case, a defendant tried to withdraw his plea after being sentenced to a maximum sentence. The federal appeals court observed that once a plea is accepted, permitting withdrawal should be treated as an exception, rather than a right. The following summary explains how difficult it is to withdraw a plea in federal court. To read the summary, please click on the following link – https://www.greghillassociates.com/withdrawal-of-a-plea-in-federal-court-is-difficult.html