Articles Posted in Criminal Law

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Defendant Brian Koback walked into a rental car company office and stole a set of car keys. Defendant would ultimately be charged with and convicted of robbery, assault with a deadly weapon, and resisting arrest. Defendant admitted he had suffered a strike conviction, and the trial court sentenced him to state prison for 14 years four months. On appeal, defendant argued: (1) his conviction for assault with a deadly weapon was not supported by substantial evidence because there was no evidence he used the car keys in a manner that was capable of inflicting and likely to cause great bodily injury; (2) the trial court abused its discretion by imposing consecutive sentences on the robbery and resisting arrest counts, under the mistaken belief that it could only impose concurrent sentences if it struck defendant’s strike prior; (3) the minutes of sentencing and abstract of judgment did not accurately reflect the oral pronouncement of sentence with respect to restitution and parole revocation fines; and (4) the minutes of sentencing contained a clerical error, in that they reflected that defendant admitted two strike priors instead of one. In the published portion of its opinion, the Court of Appeal concluded defendant’s conviction for assault with a deadly weapon was supported by substantial evidence: "a car key is not an inherently deadly or dangerous weapon, but if wielded as a makeshift weapon with sufficient force at close range, as defendant did here, a key is capable of puncturing skin and causing serious bodily injury." In the unpublished portion of this opinion, the Court concluded the trial court erred when it concluded the only way it could impose concurrent sentences on defendant’s robbery and resisting arrest convictions was if it first struck defendant’s admitted strike prior. The Court therefore reversed the sentence and remanded for the trial court to resentence defendant and to consider in the first instance whether concurrent sentencing was appropriate in this case. View "California v. Koback" on Justia Law

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A jury convicted Antonio Torres of two counts of committing a lewd act with a minor under 14 years old, and found true the allegations that he had substantial sexual conduct with the minor. The court sentenced him to a total term of eight years and ordered him to pay various fines and fees, including victim restitution. Torres' appointed appellate counsel presented no argument for reversal, but asked the Court of Appeal to review the record for error on whether: (1) defense counsel was ineffective for failing to raise Miranda1 and voluntariness of confession issues; (2) sufficient evidence supported the lewd conduct and substantial sexual conduct findings; (3) the trial court erred by admitting a forensic interview into evidence; (4) the court erred when it gave the jury a pinpoint instruction defining masturbation; (5) the court erred by imposing the middle term sentence rather than the lower term sentence; and (6) the court erred by imposing consecutive sentences. The Court concluded that while the interrogation was not custodial when it began, the totality of the circumstances showed that it became custodial, and Torres should have received Miranda warnings when the detectives essentially told Torres that they would not leave, and he could not go home, until Torres told them the truth based on the evidence they had against him. The Court also concluded Torres would have prevailed on a suppression motion, and that the failure to file a suppression motion was prejudicial. Therefore, the Court reversed the judgment based on ineffective assistance of counsel. Accordingly, it was unnecessary for the Court to consider the other issues raised. View "California v. Torres" on Justia Law

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Ahmed operated a business selling medical marijuana products in Livermore, which has an ordinance that prohibits marijuana dispensaries. The city issued an administrative citation and ordered him to cease operations. Undercover officers subsequently purchased a small quantity of marijuana from Ahmed after being required to sign a membership agreement and produce identification, state medical marijuana cards, and physicians’ recommendations. Police searched Ahmed’s business and seized financial records, approximately $26,000 in cash, 18 pounds of marijuana, and 37 ounces of marijuana oils, wax, and edibles. They executed search warrants for Ahmed’s bank records, which reflected several cash deposits of between $1,000 and $11,000 and several purchases for personal rather than business purposes. Ahmed was charged with possession of marijuana for sale, money laundering, and transportation of marijuana. The prosecution successfully moved to preclude Ahmed from raising a medical marijuana defense. The judge instructed the jury that “[t]he law allows local jurisdictions to enact ordinances to regulate use of its land, including the authority to provide that facilities for distribution of medical marijuana will not be permitted to operate within its borders.” The court of appeal reversed Ahmed’s conviction. The court’s ruling barring Ahmed’s medical marijuana defense violated his constitutional right to present a defense. A local government's power over land use within its borders does not extend to, in effect, nullify a statutory defense to violations of state law. View "People v. Ahmed" on Justia Law

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A certificate of probable cause is not required where the defendant's challenge to the agreed-upon sentence is based on the Legislature's enactment of a statute that retroactively grants a trial court the discretion to waive a sentencing enhancement that was mandatory at the time it was incorporated into the agreed-upon sentence. In this case, defendant argued that he was entitled to ask the trial court to exercise its newfound discretion to strike the 20-year firearm enhancement. The Court of Appeal held that it was unable to say that there was no reasonable possibility that the trial court would decline to exercise its newfound sentencing discretion. Therefore, the court vacated the judgment and remanded for a new sentencing hearing to decide whether to exercise that discretion. View "People v. Hurlic" on Justia Law

Posted in: Criminal Law

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Defendant appealed an order denying his motion to vacate judgment and withdraw his 2005 plea of no contest to one count of conspiracy to transport cocaine for sale. The Court of Appeal held that the motion was timely under a new statute, Penal Code 1473.7, that allowed him to move to vacate a plea that has unexpected immigration consequences as a result of ineffective assistance if the motion was brought with "due diligence" after deportation proceedings commenced. However, defendant failed to demonstrate that his counsel's performance was deficient. In this case, counsel advised defendant in writing to assume that the plea "will" have deportation consequences and defendant failed to identify any alternate immigration-neutral disposition that counsel could have negotiated on his behalf. Accordingly, the court affirmed the trial court's denial of defendant's motion. View "People v. Olvera" on Justia Law

Posted in: Criminal Law

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Minor A.R. (the Minor) challenged a dispositional order committing him to the California Department of Corrections and Rehabilitation, Division of Juvenile Justice (hereafter, DJJ). At the time of the disposition hearing, the Minor was 18 years old. His history with the juvenile justice system began when he was 13 years old, and a petition was first filed against him. In 2012, he admitted two counts of residential burglary. and was declared a ward. Since then, he would be charged with various property crimes, culminating with burglary, robbery and use of a deadly weapon. He admitted to several probation violations, leading to the commitment order at issue here. The Minor argued the juvenile court abused its discretion in committing him to DJJ, on the grounds there was no substantial evidence that a less restrictive placement would be inappropriate or ineffective. He also argued the court erred by applying his custody credits to the overall maximum term of confinement, instead of the lower maximum term set by the court. In a supplemental brief, Minor argued there was no substantial evidence of probable benefit from the DJJ commitment, citing a recently decided case, In re Carlos J., 22 Cal.App.5th 1 (2018). The Court of Appeal rejected these contentions and affirmed the judgment. View "In re A.R." on Justia Law

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Defendant moved under the doctrine of laches to vacate a victim restitution order approximately 16 years after that order was entered and after he served his sentence for forgery. The Court of Appeal held that the trial court did not have jurisdiction to vacate defendant's victim restitution obligation. The court held that, absent jurisdiction, the order denying defendant's motion was non-appealable and the instant appeal must be dismissed. View "People v. Littlefield" on Justia Law

Posted in: Criminal Law

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Following rehearing, the Court of Appeal remanded this case to the trial court so that it may exercise it's independent discretion on whether to strike or dismiss a firearm enhancement. In this case, defendant was convicted of first degree murder and assault with a firearm. Defendant's case was remanded for consideration of Senate Bill No. 620, which gives the trial court discretion to impose a lower sentence and applied retroactively. The court affirmed in all other respects. View "People v. Almanza" on Justia Law

Posted in: Criminal Law

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A juvenile court has the authority to require restitution for losses beyond those that resulted from the criminal conduct with which the minor is charged, if that restitution is a properly imposed condition of probation. The Court of Appeal affirmed the juvenile court's restitution order in this case, because the minor was placed on probation and because substantial evidence supported the juvenile court's findings that the minor was involved in the uncharged conduct and that holding him responsible for the full amount of loss to the victim furthered the purposes of probation. View "In re S.O." on Justia Law

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A jury found defendant Nathan Bussey guilty of unauthorized taking or driving of a vehicle and receiving a stolen vehicle. Before trial, defendant had entered pleas of no contest to two misdemeanor counts of possession of drug paraphernalia and driving with a suspended license. Defendant admitted certain recidivist allegations, and the trial court sustained the remainder. It then sentenced him to state prison for six years (after striking two of the recidivist findings). On appeal, defendant claimed the trial court erroneously ignored his pretrial request to act in propria persona. He also contended that he received an unauthorized sentence, asserting that the trial court should have designated both of his felony convictions as misdemeanors and sentenced him accordingly, because the statutes on which these convictions are based should be deemed to be included within the reach of a 2014 ballot proposition that reduced a number of offenses to misdemeanors (even though they were not expressly included in it). The Court of Appeal affirmed the judgment. The California Supreme Court granted review pending its disposition of “related issues” in other pending appeals. Then the Supreme Court decided California v. Page, 3 Cal.5th 1175 (2017), which concluded that a conviction for unlawfully taking a vehicle valued at less than $950 was eligible for resentencing under Penal Code section 1170.18; unlawful driving, on the other hand, was not an eligible offense. It then transferred this matter back to the Court of Appeal for reconsideration in light of Page. Having done so, the Court of Appeal conditionally reversed the conviction for unlawful taking or driving, vacated the sentence, and remanded for retrial on the election of the State and resentencing. View "California v. Bussey" on Justia Law