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Clarifying whether a judgment is not yet final to apply Estrada's retroactivity rule

Numerous, recent ameliorative changes in the law require appellate counsel to be familiar with seeking retroactive relief under the principles set forth in In re Estrada (1965) 63 Cal.2d 740 (Estrada). The recent ameliorative changes include:

2016:

  • Proposition 57 – amending Welfare and Institutions Code sections 602 and 707 to remove the prosecution’s authority to directly file, in adult court, cases against persons who committed crimes as juveniles, effective 11/09/2016;

2018:

  • Senate Bill number 620 – ending the statutory prohibition on using Penal Code section 1385 to strike firearm enhancements under Penal Code sections 12022.5, subdivision (c) and 12022.53, subdivision (h), effective 01/01/2018;
  • Senate Bill number 180 – eliminating 10 of the 11 controlled substance statutory violations that support an enhancement under Health and Safety Code section 11370.2, effective 01/01/2018;
  • Assembly Bill number 1810 – creating mental health diversion under Penal Code section 1001.35 et seq., effective 06/27/2018;

2019:

  • Senate Bill number 1393 – ending the statutory prohibition on using Penal Code section 1385 to strike serious felony enhancements under Penal Code section 667, subdivision (a), effective 01/01/2019;
  • Senate Bill number 1391 – further restricting cases which can be eligible for transfer from juvenile to adult court, effective 01/01/2019;

2020:

  • Senate Bill number 136 – restricting prior convictions that support an enhancement under Penal Code section 667, subdivision (b), effective 01/01/2020.

In the seminal 1965 case of In re Estrada the California Supreme Court decided that ameliorative statutory amendments apply prospectively and, where there is no express savings clause limiting the ameliorative benefit strictly to prospective-only application, also retroactively to cases not yet final for purposes of appellate review as of the effective date of the new law. “The key date is the date of final judgment. If the amendatory statute lessening punishment becomes effective prior to the date the judgment of conviction becomes final then . . . it, and not the old statute in effect when the prohibited act was committed, applies.” (Estrada, supra, 63 Cal.2d. at p. 744.) “Not yet final for purposes of appellate review” means that the time for petitioning for certiorari in the United States Supreme Court has not yet expired; or, if such a petition is filed, certiorari has not yet been denied. (People v. Vieira (2005) 35 Cal.4th 264, 305-306, quoting People v. Nasalga (1996) 12 Cal.4th 784, 789, fn. 5.)

To arrive at this conclusion, the court reached “the inevitable inference that the Legislature must have intended that the new statute imposing the new lighter penalty now deemed to be sufficient should apply to every case to which it constitutionally could apply. The amendatory act imposing the lighter punishment can be applied constitutionally to acts committed before its passage provided the judgment convicting the defendant of the act is not final.” (Estrada, supra, 63 Cal.2d at p. 745.)

A little over a decade after deciding Estrada, the high court filed its opinion in People v. Rossi (1976) 18 Cal.3d 295 (Rossi). Whereas Estrada involved a statutory amendment that reduced penal sanctions for the criminal act, Rossi involved a situation where the ameliorative change eliminated the entire punishment. Before defendant Rossi’s conviction became final, the Legislature amended the statute to legalize her conduct. (Rossi, supra, 18 Cal.3d at p. 298.) The high court found this distinction irrelevant to whether ameliorative relief can apply to a case not yet final when the change was made. (Id. at pp. 300-301; accord People v. Collins (1978) 21 Cal.3d 208, 213; see also People v. Superior Court (Lara) 4 Cal.5th 299, 303-304 [the possibility of being treated in juvenile court after a “transfer hearing” is held and the court declines to transfer the matter to adult criminal court is an ameliorative benefit such that Estrada's inference of retroactivity applies] and People v Frahs (2020) 9 Cal.5th 618, 624 [possibility of mental health diversion and ultimate dismissal of charge provides possible ameliorative benefit such that Estrada’s inference of retroactivity applies].)

In cases where the court orders defendant to serve a determinate or indeterminate sentence in state prison or in county jail as a felony sentence, defining finality within the meaning of Estrada, and application of ameliorative sentencing to a judgment of conviction that is not yet final, is pretty basic. But in other cases, for example where the court orders defendant to serve a term of probation, defendant does not appeal the original disposition but later violates probation, or where the judgment is vacated and a new sentence is imposed, the conclusion not so easy.

Earlier in 2020, in People v. McKenzie (2020) 9 Cal.5th 40 (McKenzie), the high court considered the question of finality for purposes of Estrada application in an appeal from the revocation of probation following an initial disposition suspending imposition of sentence. In that case, when the trial court originally suspended imposition of sentence and ordered defendant to serve a probation period, defendant did not appeal. He then violated probation. The trial court revoked probation and ordered defendant to serve the previously-suspended sentence. (Id. at p. 43.) During the appeal of that revocation of probation – after the appellate opinion issued but before the deadline by which to file a petition for review had passed, the governor signed Senate Bill No. 180. Defendant filed a petition for review; the Supreme Court remanded the case to the Court of Appeal to consider Estrada application of this new ameliorative law. The Court of Appeal held defendant was entitled to the ameliorative relief he sought because the case was not final when the new law became effective, and the People brought the case back to the Supreme Court with a petition for review. (Id. at pp. 43-44.)

In the Supreme Court, the People argued the finality of a judgment of conviction for applying ameliorative legislative amendments under Estrada is defined by the finality of the first appealable order in the case. That is, in Mr. McKenzie’s situation, finality occurred when the time to appeal the initial order of probation had passed. Under this reasoning, the government claimed that because the ameliorative change occurred long after the original probation order could have been appealed but was not, that judgment was long final and defendant could not benefit from the ameliorative change in the law. (McKenzie, supra, 9 Cal.5th at p. 46.)

Rejecting the People’s position, the Supreme Court pointed out that use of the phrase “judgment of conviction” in Estrada did not refer only to the “underlying” convictions and enhancement findings. “In criminal actions, the terms ‘judgment’ and “ ‘sentence’ ” are generally considered ‘synonymous’ [citation], and there is no ‘judgment of conviction’ without a sentence [citation].” (People v. McKenzie, supra, 9 Cal.5th at p. 46, internal citations omitted.) Thus, for purposes of Estrada retroactivity, the focus is not on when a discrete disposition order becomes final but rather when the case – the criminal prosecution/proceeding/power to pronounce judgment – has become final.

The high court’s reasoning in McKenzie raises questions about the parameters of finality of judgment for application of Estrada ameliorative relief to cases wherein the trial court issued an appealable judgment but the case remains ongoing. The Supreme Court is now considering four different cases, with different procedural postures, to flesh out the boundaries of the finality of conviction for Estrada ameliorative relief.

Execution of sentence suspended:

In People v. Esquivel (Mar. 26, 2020, B294024) [nonpub. opn.], review granted Aug. 12, 2020, S262551, the court defined the issue to be briefed and argued: Is the judgment in a criminal case considered final for purposes of applying a later ameliorative change in the law when probation is granted and execution of sentence is suspended or only upon revocation of probation when the suspended sentence is ordered into effect?

Resentencing under Penal Code section 1170, subdivision (d):

When the trial court responded to CDCR’s letter and resentenced defendant pursuant to Penal Code section 1170, subdivision (d)(1), did that action “reopen” the finality of the sentence such that defendant is entitled to application of Proposition 57 and Senate Bill No. 1391 on an otherwise long-final conviction? (People v. Federico (2020) 50 Cal.App.5th 318, review granted Aug. 26, 2020, S263082.)

Resentencing upon remand after Court of Appeal conditionally reversed judgment:

When a mandatory LWOP judgment becomes final, but is later vacated, altered, or amended by a successful writ of habeas corpus challenging the sentence under Miller v. Alabama (2012) 567 U.S. 460, 465 and a new sentence is imposed, and a new appeal is pursued, and in the interim the electorate approved Proposition 57, is the case no longer final for purposes of applying this intervening ameliorative change in the law? (People v. Padilla (2020) 50 Cal.App.5th 244, review granted Aug. 26, 2020, S263375.)

Split sentence:

If the court imposes a split sentence under Penal Code section 1170, subdivision (h)(5)(A), i.e., orders execution of a portion of the sentence in the county jail and places defendant on a period of mandatory supervision following suspension of the execution of the remaining portion of the sentence, when is the case final for Estrada purposes? Is the case final at the time this initial judgment is ordered, or at a later time when the defendant serves the mandatory supervision order, or at an even later time? (People v. Conatser (2020) 53 Cal.App.5th 1223, review granted Nov. 10, 2020, S264721, case holding for a related issue currently considered in People v. Esquivel (Mar. 26, 2020, B294024) [nonpub. opn.], review granted Aug. 12, 2020, S262551.)

 

LWOP and sentences amounting to LWOP in juvenile cases: cruel and unusual punishment

Lead cases: Cases from the United States and California Supreme Courts have established new ground rules for heavy punishment of crimes committed by juveniles:

  • In People v. Caballero (2012) 55 Cal.4th 262, the California Supreme Court extended the ban of Graham v. Florida (2010) 560 U.S. 48 on LWOP for non-homicides committed by a juvenile, holding unconstitutional a sentence so long it is the equivalent of LWOP.
  • People v. Gutierrez (2014) 58 Cal.4th 1354 considered the ban on mandatory LWOP for juvenile homicides established in Miller v. Alabama (2012) 567 U.S. 460 [132 S.Ct. 2455, 183 L.Ed.2d 407] in the context of Penal Code section 190.5, holding that section does not create a presumption of LWOP for juvenile special circumstances murders.
  • People v. Franklin (2016) 63 Cal.4th 261 found the enactment of Penal Code section 3051 satisfied Miller-Caballero by requiring the defendant receive a parole eligibility hearing during the 25th year of incarceration. It also remanded to the trial court to determine whether the defendant had an adequate opportunity to make an evidentiary record of youth-related mitigating factors that would be relevant to the parole release decision.
  • In In re Cook (2019) 7 Cal.5th 439, the Supreme Court clarified that a defendant whose case is final must file a motion in the superior court pursuant to Penal Code section 1203.01, not a petition for writ of habeas corpus, to obtain a Franklin hearing.

Practice memo: ADI has prepared a practice memo for counsel on the implications and applications of these cases. It considers the availability of resentencing remedies under the cases; their retroactivity; the responsibilities of counsel in pre-remittitur and post-remittitur cases involving these issues; and related potential issues flowing from the decisions.

Materials for pro per inmates: ADI has also prepared links to two sets of materials for unrepresented inmates who may be entitled to relief – one for Caballero situations and one for Gutierrez situations, and one for Franklin relief.

The Caballero set of materials includes:  

1.   Cover letter to inmate introducing the materials and procedures.  
2.   Instructions for preparing the habeas corpus petition.
3.   Answer to Question 6, “Grounds for Relief” (Attachment)
4.   MC-275 (required form for pro per habeas corpus petition)

The Gutierrez set of materials includes:  

1.   Cover letter to inmate introducing the materials and procedures. 
2.   Instructions for preparing the habeas corpus petition.
3.   Answer to Question 6, “Grounds for Relief” (Attachment)
4.   MC-275 (required form for pro per habeas corpus petition)   

The Franklin set of materials includes:  

1.   Cover letter to inmate introducing the materials and procedures. 
2.   Instructions for preparing the habeas corpus petition.
3.   Answer to Question 6, “Grounds for Relief” (Attachment)
4.   MC-275 (required form for pro per habeas corpus petition)   

 

Sixth Amendment confrontation under Crawford and progeny: use of "testimonial" out-of-court statements

UNITED STATES SUPREME COURT DECISIONS

The foundational case for the current debate on confrontation is Crawford v. Washington (2004) 541 U.S. 36, which held the Sixth Amendment forbids "testimonial" out-of-court statements unless the witness is unavailable to testify and the defendant had a prior opportunity for cross-examination. "Testimonial" statements are made under circumstances that would lead an objective witness reasonably to believe the statements would be available for use at a later trial.

In Melendez-Diaz v. Massachusetts (2009) 557 U.S. 305 the court found a violation of the right to confrontation when written certificates, executed under oath, stating a drug test revealed the presence of cocaine, was admitted without the testimony of the scientist who performed the test. Each certificate was a "solemn declaration or affirmation made for the purpose of establishing or proving some fact." (Id. at p. 310, interior quotation marks omitted.)

In Bullcoming v. New Mexico (2011) ___ U.S. ___ [131 S.Ct. 2705, 180 L.Ed.2d 610], the court determined the Confrontation Clause does not permit the prosecution to introduce the blood alcohol findings of a nontestifying forensic analyst, recorded in a written certificate, through the in-court testimony of a supervisor or other person who did not perform or observe the laboratory analysis described in the certificate. The nontestifying analyst's certificate, though not sworn before a notary, was formalized in a signed document and therefore qualified as a "testimonial" statement.

In Williams v. Illinois (2012) ___ U.S. ___ [132 S.Ct. 2221, 183 L.Ed.2d 89], a fractured court found that the Confrontation Clause is not violated when an expert witness uses and testifies about the results from tests she did not perform herself as the basis of her opinion. The testimony, by a forensic biologist, was that a DNA profile on swabs from the victim, produced by a Maryland laboratory, matched the defendant's DNA profile from the Illinois state police. Because no single rationale had the assent of five justices, the "holding" of the court may be considered as the narrowest grounds on which the justices concurring in the judgment agreed – in this case, arguably, the precise factual scenario at hand in Williams: a bench trial where DNA evidence developed by a non-testifying expert is admitted to show the basis of the testifying expert's opinion. In a case with a jury trial, a different result might be required. Staff attorney Cindi Mishkin provides an analysis of the decision here (PDF).

CALIFORNIA SUPREME COURT DECISIONS

A pre-Melendez-Diaz case, People v. Geier (2007) 41 Cal.4th 555, found no confrontation clause violation when a laboratory supervisor testified about DNA results from a test performed by another employee. The court's theory was those results were within the business records hearsay exception and were not testimonial.

On October 15, 2012, the Supreme Court issued a trio of cases interpreting Melendez-Diaz: People v. Lopez (2012) 55 Cal.4th 569, People v. Dungo (2012) 55 Cal.4th 608, and People v. Rutterschmidt (2012) 55 Cal.4th 650. In these cases, the court used a two-part test for the "testimonial" character of an out-of-court statement. First, to be "testimonial," the statement must have been made with some degree of formality or solemnity. Second, its primary purpose must have pertained in some fashion to a criminal prosecution.

Lopez found proper the admission of a nontestifying laboratory analyst's report on blood alcohol and a colleague's testimony drawing the same conclusion. The report in question was not "testimonial" as the U.S. Supreme Court has developed that concept, because it was not executed with the requisite formality.

Dungo upheld the admission of a pathologist's testimony about an autopsy performed by another doctor than the witness. The court's analysis rested primarily on the "primary purpose" prong of the test. It concluded that criminal investigation was not the primary purpose for the autopsy report; it was only one of several purposes.

In Rutterschmidt a supervising criminalist testified to the results of drug tests and reports prepared by other analysts. The court decided any error in admitting this testimony was harmless beyond a reasonable doubt and so did not resolve the admissibility question.

ISSUES FOR COUNSEL TO CONSIDER

These cases seem highly fact-specific. It is hard to distill a "holding" from each, other than the resolution in the particular case. Counsel may therefore attempt to distinguish the unfavorable cases and analogize to the favorable ones.

The Court of Appeal will be bound by the California Supreme Court's two-pronged test for "testimonial" statements, but, while acknowledging that fact, counsel may urge the test is not correct and say the issue is being raised to preserve it for review and possible certiorari.

Professor Jeffrey Fisher, who argued Crawford before the Supreme Court, offers an update on that area of the law here. (P. 018 et seq. Posted with author's permission.)

Sex Offender Registration

Blakely-Apprendi Principles Do Not Apply to Imposition of Registration Requirement with Residency Restrictions

People v. Mosley (2015) 60 Cal.4th 1044 rejected the contention that lifetime sex offender registration requirement carrying residency restrictions under Jessica’s Law (Pen. Code, § 3003.5, subd. (b)) can be imposed only if the defendant had an opportunity for a jury trial and findings beyond a reasonable doubt under Blakely-Apprendi. (Blakely v. Washington (2004) 542 U.S. 296; Apprendi v. New Jersey (2000) 530 U.S. 466.)

Noting long-standing law that sex registration per se is not “punishment,” the court rejected the further contention that highly burdensome residency restrictions added by Jessica’s Law converted a regulatory measure into a punitive one. First, the jury trial right at the time of the Sixth Amendment’s adoption did not apply to such restrictions, first enacted many years later. Second, historical considerations aside, the restrictions are inherently regulatory in nature. Third, even if the residency restrictions required Blakely-Apprendi procedures, failure to follow such procedures would not invalidate the entire requirement of sex registration, as the Court of Appeal had ordered.

Justice Liu, joined by Justice Werdegar, concurred and dissented. He concluded the residency restriction is a penalty that exceeds what the jury’s verdict permitted and so violates Blakely-Apprendi. Those cases broadly prohibit judicial factfinding that increases maximum criminal penalties and punishments and do not focus on the particular type of penalty or punishment involved. The trial judge’s finding that Mosley had committed the assault with sexual intent subjected him to burdensome restrictions far beyond those prescribed for the simple conviction of assault. Justice Liu found these “punitive” within the tests laid out by the United States Supreme Court. He agreed with the majority that the remedy would not be to invalidate the entire registration requirement.

A certiorari petition remains a possibility. Until that decision is made and any petition is ruled on, ADI recommends attorneys raise the issue briefly on behalf of their clients to preserve it. Elaborate briefing would be inappropriate, and of course the argument must acknowledge the California Supreme Court’s decision and the fact it is binding on the Courts of Appeal.

Residency Requirements for Sex Offender Parolees in San Diego County May Not Be Applied Across-the-Board

In re Taylor (2015) 60 Cal.4th 1019 held, as had the Court of Appeal, that sex offender parolees in San Diego County cannot be subjected to across-the-board residency restrictions required by Jessica’s Law. A unanimous Supreme Court held the effects of those restrictions are so extensive and unreasonable as to constitute an infringement on constitutional rights, because there are so few available residences in the county meeting the requirements of the statute.

These harsh restrictions on the affected parolees’ liberty and privacy rights produce conditions that hamper, rather than foster, efforts to monitor, supervise, and rehabilitate these persons. For example, they have led to greatly increased homelessness among registered sex offenders on parole in the county. Accordingly, they bear no rational relationship to advancing the state’s legitimate goal of protecting children from sexual predators and infringe the affected parolees’ basic constitutional right to be free of official action that is unreasonable, arbitrary, and oppressive. The court stressed that some parolees may be validly restricted in choice of residence, but that decision must be individualized, not mandated by a blanket policy.

 

An aider and abettor may not be convicted of first degree premeditated murder under the natural and probable consequences doctrine.

Chiu

People v. Chiu (2014) 59 Cal.4th 155 held an aider and abettor may not be convicted of first degree premeditated murder under the natural and probable consequences doctrine. The defendant was charged with murder under two theories: (1) he directly aided and abetted the murder, and (2) he aided and abetted the perpetrator of the target offense, disturbing the peace or assault, the natural and probable consequence of which was the victim’s murder. A jury found him guilty of first degree murder. Interpreting the legal principles establishing aider and abettor culpability (e.g., Pen. Code, § 31), Chiu concluded the second theory is legally incorrect. Aider and abettor culpability in the natural and probable consequences context is not sufficient to support liability for first degree murder. (Chiu, at pp. 164-166.) “[T]he connection between the defendant’s culpability and the perpetrator’s premeditative state is too attenuated.” (Id. at p. 166.) The instructional error was prejudicial under Chapman v. California (1967) 386 U.S. 18. (Chiu, at p. 168.)

Retroactivity

Chiu’s holding is a substantive rule of law that defines the reach of aider and abettor liability, and so it should be fully retroactive. (See Schriro v. Summerlin (2004) 542 U.S. 348, 351-352; Bousley v. United States (1998) 523 U.S. 614, 619-621 [decision that a substantive criminal statute does not encompass certain conduct is fully retroactive]; People v. Mutch (1971) 4 Cal.3d 389, 394-396 [reinterpretation of substantive definition of kidnapping applies to defendant whose conviction became final before People v. Daniels (1969) 71 Cal.2d 1119]; In re Hansen (2014) 227 Cal.App.4th 906, 916-917 [retroactively applying People v. Sara Chun (2009) 45 Cal.4th 1172, on merger of shooting at inhabited dwelling with resulting homicide, to conviction final on appeal].)

Responsibilities of counsel

In pre-remittitur cases, appellate counsel should raise issues related to Chiu when they would be beneficial, no matter what the stage. (See Potentially Favorable Changes in the Law, which discusses procedures at various post-conviction stages and explains the basic principles of retroactivity.)

In post-remittitur cases, a petition for writ of habeas corpus in the trial court to seek reversal pursuant to Chiu may be filed. Normally, trial counsel would be responsible for it. ADI cannot offer any realistic expectation that appellate counsel would receive compensation from the Court of Appeal for efforts on post-remittitur cases. Counsel may wish to seek a superior court appointment, however – or at least voluntarily help affected former clients by alerting them or their trial counsel to Chiu and ADI’s materials for unrepresented inmates (next topic).

Materials for unrepresented inmates

ADI has prepared materials for unrepresented inmates, which counsel may send to former clients or trial counsel:

1. Cover letter to inmate introducing the materials and procedures.
2. Instructions for preparing the habeas corpus petition.
3. Answer to Question 6, “Grounds for Relief” (Attachment to Petition)
4. MC-275 (required form for pro per habeas corpus petition)


No great bodily injury enhancements under Penal Code section 12022.7, subdivision (a), can attach to a conviction for murder or manslaughter

Cook

People v. Cook (2015) 60 Cal.4th 922 held a great bodily injury enhancement under Penal Code section 12022.7, subdivision (a) cannot attach to a conviction of murder or manslaughter. The defendant was convicted of three counts of gross vehicular manslaughter (Pen. Code § 192, subd. (c)(1)). Three GBI enhancements were applied to the first count of gross vehicular manslaughter. Two were based on the other victims involved in the manslaughter counts, and one related to an injured victim who survived. The Supreme Court concluded that a manslaughter conviction cannot be enhanced under section 12022.7(a) for the infliction of great bodily injury on any victims. The language of section 12022.7, subdivision (g), specifically provides the enhancement “shall not apply to murder or manslaughter” and shall not apply “if infliction of great bodily injury is an element of the offense.” It disapproved three Court of Appeal decisions at least partially inconsistent with that conclusion.

Retroactivity

Cook’s holding is a substantive rule of law that defines the reach of a great bodily injury enhancement under Penal Code section 12022.7, subdivision (a). It therefore should be fully retroactive, even as to final cases. (See Schriro v. Summerlin (2004) 542 U.S. 348, 351-352; Bousley v. United States (1998) 523 U.S. 614, 619-621 [decision that a substantive criminal statute does not reach certain conduct is fully retroactive]; People v. Mutch (1971) 4 Cal.3d 389, 394-396 [reinterpretation of substantive definition of kidnapping applies to defendant whose conviction became final before People v. Daniels (1969) 71 Cal.2d 1119]; In re Hansen (2014) 227 Cal.App.4th 906, 916-917 [retroactively applying People v. Sara Chun (2009) 45 Cal.4th 1172, on merger of shooting at inhabited dwelling with resulting homicide, to conviction final on appeal].)

Responsibilities of counsel

In pre-remittitur cases, appellate counsel should raise issues related to Cook when they would be beneficial, no matter what the stage. (See Potentially Favorable Changes in the Law, which discusses procedures at each stage of an appeal and basic principles of retroactivity.)

In post-remittitur cases, a petition for writ of habeas corpus in the trial court seeking relief under Cook may be filed. Normally, trial counsel would be responsible for it. ADI cannot offer any realistic expectation that appellate counsel would receive compensation from the Court of Appeal for efforts on post-remittitur cases. Counsel may wish to seek a superior court appointment, however – or at least voluntarily help affected former clients by alerting them or their trial counsel to Cook and ADI’s materials for unrepresented inmates (next topic).

Materials for unrepresented inmates

ADI has prepared materials for unrepresented inmates, which counsel may send to former clients or trial counsel:

1. Cover letter to inmate introducing the materials and procedures.
2. Instructions for preparing the habeas corpus petition.
3. Answer to Question 6, “Grounds for Relief” (attachment to petition)
4. MC-275 (required form for pro per habeas corpus petition)

 

Denial of motion to recall a sentence is broadly appealable as order after judgment affecting the substantial rights of the party


Two California Supreme Court decisions have taken an expansive position on the appealability of refusal to recall a sentence under one of various statutory provisions permitting recalls, finding these to be orders after judgment affecting the substantial rights of the defendant. (Pen. Code, § 1237, subd. (b).) In so doing the court has cast serious doubt on the more restrictive position various Courts of Appeal have taken.

People v. Loper (2015) 60 Cal.4th 1155 found denial of compassionate release under Penal Code section 1170, subdivision (e) to be appealable. It rejected the position that, because the defendant has no right to make a recall motion under that provision, denial of recall is not appealable. The right to appeal is not confined to the moving party. (E.g., People v. Herrera (1982) 127 Cal.App.3d 590 [recall to correct disparate sentence under Pen. Code, § 1170, subd. (f)], overruled on other grounds but approved on appealability holding in People v. Martin (1986) 42 Cal.3d 437, 446, 450]; see ADI Appellate Practice Manual, §§ 2.69-2.69A, 2.72.)

Teal v. Superior Court (2014) 60 Cal.4th 595 found denial of resentencing under Penal Code section 1170.126 on eligibility grounds to be appealable. It rejected the argument that a defendant who is ineligible for section 1170.126 relief has no standing to make the motion and thus to appeal it. Standing requires an actual justiciable controversy in which the party has a beneficial interest; it does not require the defendant actually be eligible for relief on the merits. (Id. at p. 601, citing People v. Totari (2002) 28 Cal.4th 876, 884.)

These two Supreme Court decisions undermine a long line of cases on refusal to recall the sentence under Penal Code section 1170, subdivision (d)(1). That section permits the trial court to resentence the defendant within 120 days of judgment on its own motion, but does not confer standing on a defendant to initiate a motion to recall a sentence. (Thomas v. Superior Court (1970) 1 Cal.3d 788, 790.) Formerly, case law had concluded from this fact that the defendant cannot appeal the refusal to recall the sentence and therefore could not appeal from its denial. (People v. Pritchett (1993) 20 Cal.App.4th 190, 194; People v. Chlad (1992) 6 Cal.App.4th 1719, 1725.) With the disapproval of that rationale, the conclusion that refusal to recall a sentence under section 1170(d)(1) is not appealable is open to challenge.

First District Appellate Project attorney Jeremy Price has prepared a practice article on Loper and Teal.

 

Search and seizure: digital privacy in the post-Riley world

Riley v. California (2014) ___ U.S. ___ [134 S.Ct. 2473, 189 L.Ed.2d 430] held that the search-incident-to-arrest doctrine does not allow warrantless searches of the digital contents of cell phones as incident to arrest, apart from “case-specific exceptions [that] may still justify a warrantless search of a particular phone.” The Supreme Court reasoned, “Cell phones differ in both a quantitative and qualitative sense from other objects that might be kept on an arrestee’s person.” (Id. at 2489.) It suggested that electronic devices therefore need to be treated differently in the Fourth Amendment context.

The issues are complex, in light of the immense capabilities and varieties of electronic devices. The number of electronic devices that could require a warrant are rapidly growing; defendants have argued that computers, cameras, GPS devices, and key fobs are all electronic devices that fall within the scope of Riley and therefore require a warrant to search. Courts have had to determine what exigent circumstances, such as the destruction of evidence on a cell phone from a third party, exist as an exception to the warrant requirement. Post-Riley courts have also grappled with applying the Fourth Amendment’s particularity requirement to cell phone warrants to avoid overseizure of data.

Professor Jeffrey Fisher, who argued Riley before the Supreme Court, offers an update on that area of the law here. (P. 005 et seq. Posted with author’s permission.)

 

Supreme Court update on criminal procedure

Stanford Law School Professor Jeffrey Fisher has written a comprehensive article addressing two topics: Digital Privacy in a Post-Riley World and Crawford v. Washington -- the Sixth Amendment Right to Confrontation. His article, updated through November 2015 is here. (Posted with author's permission.) 

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*The material found on this Web site is for informational purposes only. It should not be considered to be legal advice and is not guaranteed to be complete or up to date. Use of this Web site is not intended to create, and receipt of it does not constitute, an attorney-client relationship between the user and Appellate Defenders, Inc. (ADI) or any of the firm's attorneys. Readers should not rely upon or act upon this information without seeking professional counsel. See full disclaimer.