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

If a Franklin Hearing is Granted, Does Prop 57 Then Apply?

It is not uncommon for potential clients and family members of clients to call us with the understanding that a Franklin hearing is a resentencing hearing. What is more disturbing, however, is the fact that other licensed attorneys are advising such folks that this is so, which is not true. This misunderstanding then leads to an expectation that Proposition 57 may apply to require refiling the case in juvenile court when defendant was a juvenile at the time of the crime. The following summary of a recent ruling explains this is incorrect on many levels. To read this summary, please click on the following link – https://www.greghillassociates.com/if-a-i-franklin-i-hearing-is-granted-does-prop-57-then-apply.html

If a Franklin Hearing is Granted, Does Prop 57 Then Apply?

It is not uncommon for potential clients and family members of clients to call us with the understanding that a Franklin hearing is a resentencing hearing. What is more disturbing, however, is the fact that other licensed attorneys are advising such folks that this is so, which is not true. This misunderstanding then leads to an expectation that Proposition 57 may apply to require refiing the case in juvenile court when defendant was a juvenile at the time of the crime. The following summary of a recent ruling explains this is incorrect on many levels. To read this summary, please click on the following link – https://www.greghillassociates.com/if-a-i-franklin-i-hearing-is-granted-does-prop-57-then-apply.html

SB 1437: Judge Finds Defendant Was a Major Participant

As the reader of this blog may be familiar, the new felony murder rule abolishes aider and abetter liability under the felony murder rule and under the natural and probable consequences theory and permits resentencing by a judge except when any one of three conditions exists. One of the exceptions to resentencing is when defendant acted as a major participant with reckless indifference to human life. What is this? To read an example of when this exception was found, please click on the following link – https://www.greghillassociates.com/sb-1437-judge-finds-defendant-a-major-participant.html