September 15-21, 2021
🔑 Key Cases
1. 1st – Trial court erred in denying Batson/Wheeler motion as to peremptory challenge to a juror who expressed support for Black Lives Matter..
2. 6th – Trial court may deny a continuance to a motion to suppress even if it may result in dismissal of the case. Creates split in authority.
3. 4/2 – Guilty plea to first degree premeditated murder does not preclude eligibility for relief under Pen. Code, § 1170.95 as a matter of law.
+ 3 Additional Case Summaries
1. P. v. Silas (1st Dist., Div. 1, A150512, Contra Costa) In a 70-page opinion the Court of Appeal holds the trial court committed reversible error by denying a Batson/Wheeler motion as to the peremptory challenges to three Black jurors in a trial against four Black defendants charged with murders of two Black victims. In particular, the challenge to the dismissal of a prospective juror who expressed support for Black Lives Matter was improperly denied. The Court of Appeal evaluated the dismissal of all three jurors and stated the prosecutor sometimes became antagonistic when asking potential jurors who were Black questions with racial implications, like about Black Lives Matter, and tended to “reject responses that differed from her preconceived notions of the correct answers.” The prosecutor also sometimes incorrectly recounted the record when she defended her challenges (the prosecutor recounted the prospective juror as denying property damage occurred during some demonstrations but the prospective juror was expressing disagreement with those actions not denying they occurred). The same prosecutor had tried unsuccessfully in a prior trial to get a Black hold-out juror dismissed by claiming the juror refused to deliberate, rather than accepting the juror had fundamental disagreements with the other jurors. The same prosecutor had a Batson/Wheeler objection sustained against her in another case, and other prosecutors in the same office had engaged in Batson/Wheeler violations. Collectively this undermined the trial court’s conclusion that the strike of this one juror was not motivated in substantial part by discriminatory intent. As to the issues of the prior violation by this prosecutor and her office, the trial court was incorrect to give the prosecutor “a fresh start” as to what she had done during this selection process. This is because all relevant circumstances are to be considered in determining if a prima facie case of discrimination is shown, such that “[p]rosecutors are not entitled to ‘a fresh start’ when it comes to deciding whether they have acted with a discriminatory purpose in exercising peremptory challenges.” While the prosecutor met the burden of providing facially neutral reasons, the trial court erred in crediting those reasons, as the prosecutor’s reasons did not hold up to scrutiny, as she misunderstood her exchange about property damage at demonstrations, confused the potential juror for a different Black female potential juror who arrived tardy one day, did not challenge non-Black potential jurors who gave views indicating a negative view of law enforcement (while the challenged juror’s views reflected a negative view of sentencing, not police), and the prosecutor’s questioning of potential jurors who lived in areas she perceived as “crime-ridden” and challenges to potential jurors who disagreed with her view suggested she was challenging them because they should have been aware of crime within the Black community.
2. P v. Brown (6th Dist., H048462, Santa Clara App. Div., Santa Clara) Disagreeing with People v. Ferrer (2010) 184 Cal.App.4th 873, this panel holds that even if it is reasonably foreseeable that denial of a prosecutor’s request to continue under Penal Code section 1050 will result in dismissal a trial court may deny a request to continue a motion to suppress under Penal Code section 1538.5. Here, on the prosecutor’s own initiative, he released the subpoenaed officer so the officer could interview a witness in an unrelated investigation, and then requested a continuance of the hearing on the motion to suppress. The trial court rejected the continuance request on the grounds the unforeseen circumstances of the other investigation did not constitute good cause as it was not “workable” for parties to excuse necessary witnesses on their own and it didn’t believe another investigator couldn’t conduct the interview or that the officer was indispensable to the interview. The trial court then granted the suppression motion. The prosecutor moved for reconsideration citing Ferrer for the proposition the trial court didn’t have authority to refuse to grant a continuance—even in the absence of good cause—when the foreseeable result would be dismissal of the case. The trial court vacated its order granting the suppression motion, confirming it still found no good cause but agreeing it did not have authority to deny the continuance under Ferrer. The trial court later conducted the suppression motion and denied it. The defendant then pled guilty and appealed. The Court of Appeal held “that if the trial court finds that the request for a continuance of a motion to suppress lacks good cause, the court has the authority to deny the requested continuance for lack of good cause under section 1050, subdivision (e), even if this decision may foreseeably result in a dismissal of the matter for lack of evidence.” The decision as to any continuance is left to the discretion of the trial court.
3. P. v. Eynon (4th Dist., Div. 2, E074962, Riverside) Agreeing with People v. Rivera (2021) 62 Cal.App.5th 217, review granted June 9, 2021, S268405, this panel of Division Two of the Fourth District held the trial court erred in denying a petition for resentencing under Penal Code section 1170.95 at the prima facie screening stage based on a guilty plea to premeditated first degree murder, where a codefendant was alleged to be the actual killer, and an admission the murder was committed during a robbery. This was because the plea to first degree premeditated murder did not specify the theory of murder or otherwise amount to an admission that the defendant himself acted with premeditation, deliberation, or intent to kill, as it was merely an admission that murder with malice was committed and the defendant committed an act with the necessary intent to render him liable for murder under then operative law. Similarly, the admission the murder was committed during a robbery does not establish the defendant could still be convicted under the current felony murder rule as he may not have been acting with intent to kill, or been a major participant, or acting with reckless indifference. Thus, the record of conviction did not refute the defendant’s allegation in his petition that he was eligible for relief.
Other Case Summaries
P. v. Lopez-Vinck (4th Dist., Div. 1, D077029, San Diego) AB 1869 does not apply retroactively to cases still pending on appeal under Estrada as it has its own provision specifying unpaid portions of repealed fees and fines are “unenforceable and uncollectible and any portion of a judgment imposing those costs shall be vacated.” (Govt. Code, § 6111.) Thus, for a defendant on appeal with a remaining unpaid portion of the Criminal Justice Administrative Fee (Govt. Code, § 29550.1) they are entitled to a vacatur of the unpaid portion as of July 1, 2021. A footnote states the panel does not intend to suggest defendants with final sentences must seek vacatur of unpaid fees from a court—as the provision applies as a matter of law—merely that defendants with pending appeals may request a vacatur of the unpaid portion from their judgments rather than an affirmance of the unmodified sentence.
P v. Barboza (4th Dist., Div. 3, G059299, Orange) Trial court erred in denying a petition for resentencing under Penal Code section 1170.95 at the prima facie screening stage based on a jury’s first degree murder conviction and special circumstance finding requiring the intent to kill because the sentencing court had reduced the murder conviction to second degree and struck the special circumstance at sentencing. The sentencing court’s action was authorized under Penal Code section 1181, subdivision (6), as a modification without granting a new trial based on a finding, using the court’s independent judgment, that the defendant was guilty of a lesser degree of the crime or lesser crime. This was a decision by the sentencing court based on the sufficiency of the evidence or reweighing or resolving conflicts differently than the jury and rendered the jury’s findings a nullity. Thus, at the prima facie screening stage the court could not rely on the jury’s original findings to deny the petition since there was no finding of intent conclusively demonstrating defendant engaged in the requisite acts with the requisite intent to be convicted on a theory of murder that remains valid.
P v. Montoya (5th Dist., F079501, Tulare) Defense trial counsel was not ineffective for recommending the defendant admit a charge of lewd conduct by a caretaker upon a dependent person (Pen. Code, § 288, subd. (c)(2) based on defenses of consent or that the defendant, a licensed physical therapist providing in-home physical therapy, was not a caretaker. In particular, the victim was a paraplegic adult suffering from multiple sclerosis. A reasonable attorney could have concluded a lack of consent defense was not viable because there is no requirement the lewd acts be committed against the will of the victim. A reasonable attorney could also have concluded the defendant was a caretaker for the purposes of the statute as the defendant committed the acts while wearing scrubs and his work badge and while on a visit appearing to be sanctioned by one of the home healthcare agencies he worked through. Moreover, the statute simply requires the perpetrator be “a caretaker” and not “the caretaker” of the dependent person.