CEB Contributor
David Saunders
Content Attorney at Continuing Education of the Bar (CEB)
David Saunders received his BA from the University of California, Los Angeles, and his J.D. from Loyola Law School, Los Angeles. He works for CEB as an attorney editor in the Criminal Law Team. Mr. Saunders manages the publications “California Criminal Law Procedure and Practice,” “Appeals and Writs in Criminal Cases,” and “Scientific Evidence and Expert Testimony in California.”
CEB Region:
Bay Area Region
Content by David Saunders
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LA Appellate Division Holds Conditions of Misdemeanor Diversion Must Be Fulfilled Within Statutory Period
October 30, 2026
David Saunders
Appellate Law, Cannabis, Criminal Law
Can a court determine that a defendant has successfully completed misdemeanor diversion by substantially complying with the terms and conditions of diversion, even if the defendant hasn’t fulfilled them within the statutory limit of two years? In
Second District: 19-Year-Old Can't Be Moved to Adult Court for Alleged Crime When He Was 15
October 9, 2026
David Saunders
Appellate Law, Criminal Law
Can a juvenile court transfer to adult criminal court a minor who allegedly committed a murder when he was 15 and indicted when he was 19? In
Second District Holds Force Is Not Element of Attempted Robbery
September 18, 2026
David Saunders
Appellate Law, Criminal Law
Does force have to be proved to obtain a conviction for attempted robbery? In
First District Finds Amendment to Juvenile Restitution Is Not Retroactive
August 28, 2026
David Saunders
Appellate Law, Criminal Law
Does the recent amendment to Welfare and Institutions Code section 730.6, which eliminates joint and several liability for victim restitution in juvenile cases, apply retroactively? In
Fourth District Holds Childhood Trauma Must Be Connected to Crime To Trigger Presumption at Sentencing
August 6, 2026
David Saunders
Appellate Law, Criminal Law
Is the circumstance of childhood trauma alone sufficient to trigger the lower-term presumption at sentencing? In
Third District Holds Trial Court Can Consider Failure of Earlier Treatment Plan in Denying Mental Health Diversion
July 17, 2026
David Saunders
Appellate Law, Criminal Law
Can the trial court consider a defendant’s previous treatment performance to assess the adequacy of a proposed treatment for mental health diversion? In
California Supreme Court Holds That Prosecutors' Commonly Used 'Bengal Tiger' Analogy Violates Racial Justice Act
June 26, 2026
David Saunders
Criminal Law, Elimination of Bias
Does comparing a defendant to a Bengal tiger violate the Racial Justice Act? In
Second District Holds That Jailed Defendant Cannot Willfully Fail To Appear in Another County
June 5, 2026
David Saunders
Appellate Law, Criminal Law
Can a defendant in jail in one county be found to have willfully failed to appear at a sentencing hearing in another county? In
Fourth District Holds Defendant Charged With Misdemeanor Vehicular Manslaughter Is Eligible for Diversion
May 15, 2026
David Saunders
Appellate Law, Criminal Law
Is a defendant charged with misdemeanor vehicular manslaughter ineligible for misdemeanor diversion? In
Sixth District Holds That Good Faith Exception to Exclusionary Rule Applies To Searches Under CalECPA
April 23, 2026
David Saunders
Constitutional Law, Criminal Law, Evidence
Does the good faith exception to the exclusionary rule extend to searches under California's Electronic Communications Privacy Act? In its recent decision in
Second District Reverses UCLA Gynecologist's Sex Abuse Conviction Because Judge Communicated With Jury Without Counsel Present
April 3, 2026
David Saunders
Constitutional Law, Criminal Law
Can a judge communicate with the jury during deliberations without giving defense counsel the opportunity to be present? In
Scattered Marijuana Crumbs on Car Floor Don’t Constitute an Open Container
March 13, 2026
David Saunders
Cannabis, Criminal Law
Is a small amount of loose marijuana scattered on the floor constitute an open container? Does the container have to be in a sealed? In
'John the Dog' Day Afternoon: Fourth District Holds Analogy Used to Explain Circumstantial Evidence to Jurors Didn't Violate Racial Justice Act
February 20, 2026
David Saunders
Criminal Law, Elimination of Bias, Evidence
Is it a violation of California's Racial Justice Act to use a story about a dog and a blue slushy to explain to jurors the concept of circumstantial evidence? In
Court Cannot Reimpose a Vacated Restitution Fine at Resentencing, Third District Holds
January 30, 2026
David Saunders
Appellate Law, Criminal Law
Can a court reimpose a restitution fine at resentencing ten years after the fine was originally imposed? In its opinion last month in
Counsel’s Representations in Military Diversion Motion Were Not Evidence, Third District Holds
January 9, 2026
David Saunders
Appellate Law, Criminal Law, Evidence
Do the statements of defense counsel in a military diversion hearing qualify as evidence in support of the motion? In
Trial Courts Can't Rely on Fact of Unpaid Restitution to Deny Dismissal Relief, First District Holds
December 19, 2025
David Saunders
Criminal Law
Can an unpaid restitution order provide the grounds for a court to deny a motion to dismiss a conviction or motion to reduce a felony conviction to a misdemeanor? In
Gov. Newsom Signs AB 321 to Give Courts More Time to Consider Reduction of Wobblers
December 1, 2025
David Saunders
Criminal Law
On Oct. 11, California Gov. Gavin Newsom signed into law
Newly Enacted AB 1036 Expands Access to Post-Conviction Discovery
November 7, 2025
David Saunders
Criminal Law
On Oct. 7, Gov. Gavin Newsom signed into law
Any Use of Force That Overcomes Any Physical Resistance Is Sufficient to Establish Robbery, First District Holds
October 17, 2025
David Saunders
Criminal Law
How much force is necessary to establish a robbery in California? In
Military Diversion for Misdemeanor Doesn’t Require Nexus Between Condition and Offense, Fourth District Holds
September 26, 2025
David Saunders
Appellate Law, Criminal Law
Does a defendant have to show a nexus between the qualifying condition and the charged offense when seeking military diversion? In
For Mental Health Diversion, Diagnosis Can Occur Anytime Within Last 5 Years, Fourth District Holds
September 5, 2025
David Saunders
Appellate Law, Criminal Law
When a defendant seeks mental health diversion, does the diagnosis of mental disorder have to occur near the time that the alleged crime was committed? In
New Law Doesn't Override Specific Procedures for Recall and Resentencing Petitions, First District Holds
August 15, 2025
David Saunders
Appellate Law, Criminal Law
Is a trial court’s order declining to take any action on a defendant’s request for recall and resentencing appealable? In
Is 50-to-Life the Functional Equivalent of Life Without Parole? California Appeals Courts Are Split
July 25, 2025
David Saunders
Appellate Law, Criminal Law
Is a prison sentence of 50 to life the functional equivalent of life without parole? In California, there is a split of authority on this issue. In
Excessive Force Defeats Imperfect Self-Defense Claim, Fourth District Holds
July 3, 2025
David Saunders
Criminal Law
Is it reversible error to fail to allow a jury to consider evidence of a defendant’s mental disorders in a claim of imperfect self-defense when the defendant used excessive force? In
Older Version of Notice to Appear Form Can Still Serve as Complaint, Riverside Appellate Division Holds
June 13, 2025
David Saunders
Criminal Law
Does an older and slightly modified version of a traffic-violation, notice-to-appear form, which the California Judicial Council has since revised, remain eligible to serve as a complaint? In
Prosecutors Presented Insufficient Evidence That Flare Gun Was a Firearm, Sixth District Court of Appeal Holds
May 23, 2025
David Saunders
Criminal Law, Evidence
Is a flare gun a firearm? In
No Appealability for Court-Initiated Recall Order, Third District Holds
May 2, 2025
David Saunders
Appellate Law, Criminal Law
Can a district attorney appeal a court-initiated order to recall a sentence for possible resentencing? In
Enclosed Cargo Areas and Utility Bins Are Part of Vehicle Interior for Burglary, Third District Holds
April 11, 2025
David Saunders
Criminal Law
Is a service truck’s enclosed cargo area part of the interior of a vehicle for purposes of burglary? What about the utility bins attached to the rear of a truck also part of the interior? In
Creating Appellate Split, Fifth District Holds Denial of Unauthorized Request for Resentencing Is Appealable
March 21, 2025
David Saunders
Criminal Law
Is an order denying a defendant’s unauthorized resentencing petition appealable? In
Moving a Victim 10 Feet Isn't a 'Substantial Distance' to Prove a Kidnapping Offense, Second District Holds
February 28, 2025
David Saunders
Criminal Law
Is it kidnapping when a victim is moved, while struggling with the defendant, 10 feet from a sidewalk into a street without traffic, while a train is waiting at a station across the street? In
Denial of Request for Resentencing Is Not Appealable, Second District Holds
February 7, 2025
David Saunders
Criminal Law
Can a defendant appeal from a denial of their request for resentencing under
Pretrial Detention Can't Exceed Maximum Potential Sentence, First District Holds
January 17, 2025
David Saunders
Appellate Law, Constitutional Law, Criminal Law
Can a defendant who is awaiting trial be detained in excess of the term of the longest potential sentence? In
SB 905 Closes 'Locked Door Loophole' for Auto Burglaries
December 27, 2024
David Saunders
Criminal Law
In August, California Gov. Gavin Newsom signed into law
Court Erred in Issuing Protective Order for Police Misconduct Records, Second District Holds
December 6, 2024
David Saunders
Criminal Law, Evidence
Can a trial court issue a protective order for police misconduct records considered nonconfidential under the California Public Records Act? In
California Ballot's Proposition 36 Would Crack Down on Certain Drug and Theft Offenses, Roll Back 2014 Reforms
October 31, 2024
David Saunders
Criminal Law
Next week, Californians will vote on
Gov. Newsom Signs AB 1186 to Eliminate Restitution Fines for California Minors
October 25, 2024
David Saunders
Criminal Law
On September 28, California Gov. Gavin Newsom signed into law
Defendant Becomes Incarcerated When Taken Into Custody, Fourth District Holds
October 4, 2024
David Saunders
Criminal Law
When is a defendant considered “incarcerated”? Is it when they are taken into custody, or when they are sentenced? In
Certificate of Probable Cause Needed to Appeal Failure to Request Mental Health Diversion, First District Reiterates
September 13, 2024
David Saunders
Criminal Law
In California, is a certificate of probable cause required on appeal to argue ineffective assistance of counsel in failing to request mental health diversion before a plea agreement? In
Blood Test Refusal Can Be Used to Establish Consciousness of Guilt in DUI Case, First District Holds
August 23, 2024
David Saunders
Criminal Law
If a lawfully arrested motorist refuses to submit to a blood test unless a warrant is obtained first, may a jury draw an adverse inference of consciousness of guilt based on the refusal? In
Court Can Grant Diversion When Proceedings Are Suspended for Competency Determination, Fourth District Holds
August 2, 2024
David Saunders
Criminal Law
Can the trial court grant mental health diversion after a doubt has been declared regarding the defendant's competency to stand trial, but before the issue of competency has been decided? In
Certificate of Rehabilitation Cannot Be Denied Based on Severity of Crime, Fourth District Holds
July 12, 2024
David Saunders
Criminal Law
Can a defendant who has been discharged from parole be denied a certificate of rehabilitation based the severity of underlying crimes that were committed many years before? In the recent opinion
No Reduction in Sentence If Defendant Still Poses Danger to Public Safety, Second District Holds
June 21, 2024
David Saunders
Criminal Law
Is a California defendant entitled to a reduction of sentence during resentencing even if the court finds the defendant continues to pose a danger to the public? In
Court Can Only Order Restitution During Period of Mental Health Diversion
May 31, 2024
David Saunders
Criminal Law
Can a trial court order restitution after a defendant has successfully completed a 2-year period of mental health diversion? In
Court Can't Use Preliminary Hearing Testimony of Unavailable Witness, California's Fourth District Holds
May 10, 2024
David Saunders
Criminal Law, Evidence
Can the transcript of a witness’s preliminary hearing testimony be used at trial when the witness is unavailable, if the prosecution waited until two weeks before the trial to find the witness? In
Certificate of Probable Cause Needed After Plea Agreement, California's First District Holds
April 19, 2024
David Saunders
Criminal Law
Is a certificate of probable cause needed in California when filing a notice of an appeal that challenges a failure to request mental health diversion before a negotiated plea agreement? In
Only CDCR Can Calculate Defendant's Post-Sentence Conduct Credits, First District Holds
March 28, 2024
David Saunders
Criminal Law
Can a trial court calculate the conduct credits of a defendant for the period between remand on appeal and resentencing? In
Infraction Will Not Disqualify Minor from Automatic Sealing of Records, Third District Holds
March 8, 2024
David Saunders
Criminal Law
Will an infraction prevent a minor from having their records sealed after satisfactory completion of probation? In
Oregon Resident Cannot Petition California Court for Termination from Sex Offender Registry
February 16, 2024
David Saunders
Criminal Law
Can an Oregon resident whom the Department of Justice designates as a tier-two sex offender, but who isn’t registered in California, petition a California superior court for termination from the offender registry? In
Remittitur Is Filed When Clerk Receives It, Third District Holds
January 26, 2024
David Saunders
Criminal Law
When is a remittitur from the court of appeal deemed to be filed with the superior court? Is it when the clerk receives the remittitur, or when the judge on remand actually receives it? In the recent case
No Restitution for Hunting Trip in Texas, Third District Holds
January 3, 2024
David Saunders
Criminal Law
The cost of a missing stuffed ram’s head can be claimed as an economic loss in restitution, but can the victim also claim the cost of the associated hunting trip? In
SB 14 Adds Human Trafficking of Minor to List of Serious Felonies in California
December 15, 2023
David Saunders
Criminal Law
On September 25, 2023, California Gov. Gavin Newsom signed into law
AB 1643 Increases Restitution Amount Disqualifying Minors from Informal Supervision to $5,000
November 27, 2023
David Saunders
Criminal Law
On October 13, 2023, California Gov. Gavin Newsom signed into law
SB 852 Limits Searches to Probation Officers and Other Peace Officers
November 3, 2023
David Saunders
Criminal Law
On September 22, 2023, California Gov. Gavin Newsom signed into law
Juvenile Court Not Required to Dismiss Entire Petition, Fourth District Holds
October 12, 2023
David Saunders
Criminal Law
When granting a motion to dismiss, does a juvenile court have the authority to dismiss only one allegation in a petition, or must it dismiss the entire petition? In
Withdrawal Of Resentencing Request Requires Legitimate Basis, First District Holds
September 22, 2023
David Saunders
Criminal Law
Can a district attorney withdraw a request for resentencing without offering a substantive reason for doing so? In
Prisoner Cannot Initiate Resentencing By His Own Motion, Second District Holds
September 1, 2023
David Saunders
Criminal Law
Can a prisoner file a motion to initiate resentencing based on a new law invalidating a prior prison enhancement, or must the prisoner wait for action by the California Department of Corrections and Rehabilitation?. In
Peremptory Challenge of Judge Disallowed on Reversal of Denial of Felony-Murder Resentencing Petition
August 11, 2023
David Saunders
Criminal Law
After the reversal of an order denying a petition for resentencing under
Habeas Corpus Petition 'Masqueraded' As Motion to Vacate, Second District Holds
July 21, 2023
David Saunders
Criminal Law
Is a defendant entitled to appellate review of a denial of a motion to vacate a sentence filed 20 years after a conviction? In
Eligibility For Post-Conviction Relief Determined By Latest Version Of Statute
June 30, 2023
David Saunders
Criminal Law
If an ameliorative statute that allows the recall and resentencing of conviction is amended to be more restrictive, which version should the court use when a post-conviction ruling is challenged on appeal? In
Dismissal of Complaint Isn’t Required After Conviction Is Vacated And Plea Is Withdrawn
June 8, 2023
David Saunders
Criminal Law, Immigration Law
Does Penal Code section 1473.7 require dismissal of the underlying complaint or information after the conviction is vacated and the plea is withdrawn? In
Ripeness Doctrine Allows Court To Dismiss Appeal Based On Possible Future Error
May 19, 2023
David Saunders
Criminal Law
Can an appellate court dismiss an appeal that was based on the possibility of an error at a future restitution hearing? In
Defendant Entitled To Day-For-Day Presentencing Custody Credits For Assault With Firearm
April 28, 2023
David Saunders
Criminal Law
Is a defendant who has pled guilty to assault with a firearm, with a prior conviction for the same offense, entitled to day-for-day presentencing custody credits at sentencing? In
DUI Can Be Elevated To Felony Only If Previous Offense Is Listed In Sentencing Statute
April 7, 2023
David Saunders
Criminal Law
Can a combination of previous convictions for vehicular manslaughter and DUI be used to elevate a current DUI from a misdemeanor to a felony, even if the earlier convictions are not listed in the sentencing statute? In
No Custody Credits For Voluntary Enrollment In Residential Drug Treatment Program
March 17, 2023
David Saunders
Criminal Law
Is a defendant who voluntarily enrolls in a residential drug treatment program entitled to custody credits at sentencing for a rape conviction? In
Teeny Tiny Notes Are Not Privileged Attorney-Client Communication
February 24, 2023
David Saunders
Criminal Law, Evidence
A kite may be a bird of prey, or an errant toy for Charlie Brown, but for those in jail, a kite may be a small, concealed note sent illegally. Does putting a kite in an envelope addressed to an attorney render the kite a privileged attorney-client communication? In
Murder On The High Seas: Jurisdiction Extends To Tyrrhenian Sea
February 3, 2023
David Saunders
Criminal Law
Does a California Superior Court have jurisdiction over a crime that happened in the waters off Italy? In
The Case of the Whiskey in the Cup Of Noodles
January 13, 2023
David Saunders
Criminal Law
Is whiskey a “device designed to accelerate the fire” for enhancement purposes? In
No IAC for Defense Counsel’s Failure to Advise Client of SVPA Consequence of Plea
December 27, 2022
David Saunders
Criminal Law
Does a defense attorney’s failure to advise a client that a possible consequence of a guilty plea is lifetime commitment as a sexually violent predator constitute ineffective assistance of counsel? In
Juvenile Court Cannot Impose Sex Offender Registration On Minor Committed to Local Program
December 2, 2022
David Saunders
Criminal Law
Can a juvenile court impose mandatory sex offender registration when the minor is not committed to the Division of Juvenile Justice? In
AB 2746 Repeals Requirement Of DMV To Suspend Driver’s License Based On Failure To Appear
November 14, 2022
David Saunders
Criminal Law
On September 29, 2022, Governor Gavin Newsom signed into law Assembly Bill 2746 (2022 Cal. Stats. ch. 800), which lowers the penalties for driving without a license and removes the ability of a court to suspend a person's driver's license for failure to appear.
AB 2294 Reinstates Diversion for Repeat Theft Offenses
October 21, 2022
David Saunders
Criminal Law
On September 30, 2022, Governor Gavin Newsom signed into law Assembly Bill 2294 (2022 Cal Stats. ch. 856), effective September 30, 2022, reinstating pretrial diversion for repeat theft offenses, as well as amending the law regarding bench warrants and release.
Arrest Is Required for Imposing On-Bail Enhancement
September 30, 2022
David Saunders
Criminal Law
Is an arrest necessary before a court imposes an on-bail enhancement? In
SB 81 Doesn’t Apply to Sentencing Before January 1, 2022
September 9, 2022
David Saunders
Criminal Law
Is a defendant sentenced before January 1, 2022, eligible for relief under Senate Bill 81 (2021 Cal Stats. ch. 721), which requires the trial court to dismiss an enhancement if it is in the furtherance of justice to do so? In
Evasion of Peace Officer With Willful Disregard Doesn’t Mandate Jail Time
August 19, 2022
David Saunders
Criminal Law
Does a conviction for evasion of an officer with willful disregard mandate jail time? In
Motion for Directed Verdict Characterized As Motion for Judgment in Outpatient Placement Hearing
July 29, 2022
David Saunders
Criminal Law
When the prosecution moves for a “directed verdict,” after the presentation of evidence in an NGI outpatient placement hearing, can the trial court weigh the evidence and decide the matter? In
Second District Finds Juvenile Court Had Authority To Hold Restitution Hearing Five Years After Sentencing
July 8, 2022
David Saunders
Criminal Law
Can a juvenile court hold a restitution hearing five years after a minor defendant is sentenced? In
Fourth District Holds That Third-Strike Youthful Offenders Are Entitled to Franklin Hearing
June 17, 2022
David Saunders
Criminal Law
Are youthful offenders who are statutorily ineligible for early parole consideration nevertheless entitled to a
Third District Finds Stay-Away Order in Stalking Case Is Not Unconstitutionally Vague
May 27, 2022
David Saunders
Constitutional Law, Criminal Law
In a stalking case, is a protective order unconstitutionally vague when it doesn’t explicitly state that a person must “knowingly” stay 400 yards away from the victim? In
AB 1540 Clarifies Procedures and Guidelines When CDCR Recommends Recall and Resentencing
May 6, 2022
David Saunders
Criminal Law
Effective January 1, 2022, Assembly Bill No. 1540 moved the recall and resentencing provisions of former Penal Code section 1170, subdivision (d)(1), to new Penal Code section 1170.03, subdivision (a)(1). Assembly Bill 1540 also made “clarifying changes” to the section, which the Third District Court of Appeal, in
First District Limits Retroactivity Of AB 1950 to Defendants Who Didn’t Have Probation Revoked Or Terminated
April 15, 2022
David Saunders
Criminal Law
To what extent is Assembly Bill No. 1950, effective January 1, 2021, which shortened the maximum period of probation to 2 years for felonies and 1 year for misdemeanors in many cases, retroactive to cases not yet final? The courts of appeal have split on a related issue: whether a plea agreement can be renegotiated on remand, if the probation term was part of the plea agreement. Compare
Courts of Appeal Split On Whether Pleas Can Be Renegotiated On Remand After AB 1950 Probation Reduction
March 28, 2022
David Saunders
Criminal Law
Several issues have come up following the passage of Assembly Bill No. 1950, which shortened the maximum period of probation to 2 years for felonies and 1 year for misdemeanors in many cases. One issue is: If the probation term was part of a negotiated plea agreement, can this plea agreement be renegotiated on remand from the court of appeal, or can the probation term be shortened without changing the plea? Right now there is split in the courts of appeal on this issue.
Court Doesn't Have Sua Sponte Duty To Consider Mental Health Diversion
March 4, 2022
David Saunders
Criminal Law
Does a trial court have a duty to consider mental health diversion for a defendant in the absence of a request by the defendant or another party? In
Remand Is Proper To Allow Court To Apply SB 567 To 22-Year-Old Defendant
February 11, 2022
David Saunders
Criminal Law
In California’s determinate sentencing scheme there are three possible terms of imprisonment for a defendant: upper, middle and lower. For example, the three determinate terms for a sentence under Penal Code section 288(a) are 3, 6 and 8 years. This was the case in
Excess Presentence Credits In Offense Reduced To Misdemeanor Apply Towards Sentence In Different Case
January 21, 2022
David Saunders
Criminal Law
It is always important to determine what the presentence credits are due a defendant in order to make sure the defendant serves the exact duration of a sentence, no more, no less. So, what happens when a defendant is in custody pending disposition of different offenses charged in two counties, and the offense in the first case is reduced to a misdemeanor before sentencing in the second case: do the excess presentence credits of the first case count towards the sentence in the second case? In
Felony Consequences for Probation Violation Limited to Felony Period of Probation
January 3, 2022
David Saunders
Criminal Law
When a court orders a defendant to 3 years of probation for a misdemeanor DUI as well as felony evasion of a police officer, can the court specify that any probation violation during the 3 years carry felony consequences? Typically, in a misdemeanor case the defendant can receive 1 year of probation, while in a felony case a defendant can receive 2 years of probation. But what happens when the misdemeanor is exempt from the 1-year limit, and probation is set at 3 years? In
SB 248 Closes Loophole Allowing SVP Rescreening If SVP Committed New Felony in Custody
December 10, 2021
David Saunders
Criminal Law
On September 28, 2021, Governor Gavin Newsom signed into law SB 248 (2021 Cal Stats. ch. 383), effective January 1, 2022, which amends Welfare and Institutions Code section 6601 by amending subdivision (a)(1), and adding subdivision (a)(2). Under the amended Section 6601, if a person is in the custody of the Department of Corrections and Rehabilitation ( CDCR) for the commission of a new offense committed while the person was serving an indeterminate term in a state hospital as a sexually violent predator (SVP), the Secretary of the CDCR must refer the person directly to the State Department of State Hospitals for a full evaluation to determine whether the person still meets the criteria as a SVP. If the criteria are still met, the director must petition the court to either return the person to the Department of State Hospitals to continue serving the remainder of the individual’s original SVP commitment, or forward a request for a new petition to be filed, depending on whether or not the original petition has been dismissed.
SB 81 Gives Courts Guidance for Dismissing Sentencing Enhancements in Furtherance of Justice
November 19, 2021
David Saunders
Criminal Law
On Oct. 8, California Gov. Gavin Newsom signed into law
AB 700 Allows Case To Go Forward Without Presence of In-Custody Defendant If Court Makes Certain Findings
October 29, 2021
David Saunders
Criminal Law
On Sept. 22, 2021, Governor Gavin Newsom signed into law AB 700 (2021 Cal Stats. ch. 196), effective Jan. 1, 2022, which allows a defendant who is in custody to appear by counsel in criminal proceedings, without a written waiver, if the court makes specified findings on the record by clear and convincing evidence. According to the author of the bill:
Registered Co-owner Of Vehicle Can’t Be Convicted Of Using Electronic Tracking Device
October 8, 2021
David Saunders
Criminal Law
Can a registered co-owner of a car be convicted of using an electronic tracking device to track the car when it is driven by the other owner? In
Open Plea Agreement Allows Court On Remand To Strike Enhancement While Maintaining Agreement
September 17, 2021
David Saunders
Criminal Law
If new legislation requires the court to strike a prior prison enhancement, can the sentencing court on remand strike the enhancement and still maintain the open plea agreement? In
Appellate Divisions Split On Whether Persons Charged With DUIs Are Eligible For Recently Enacted Misdemeanor Diversion
August 27, 2021
David Saunders
Criminal Law
Can a person who is charged with a DUI be granted diversion under the recently enacted misdemeanor diversion law? The appellate divisions are split. In
Dead Men File No Prop. 47 Applications
August 6, 2021
David Saunders
Criminal Law
Can an attorney file an application to have a felony redesignated as a misdemeanor long after the client has died? In
Fundraising Attorney’s Relationship with District Attorney Required Disqualification of Entire DA's Office From Prosecution
July 16, 2021
David Saunders
Criminal Law
Should an entire district attorney’s office be disqualified from prosecuting an attorney charged as a co-conspirator in a quid pro quo fundraising scheme connected with reelecting the county sheriff, if the attorney is friends with the district attorney and his chief assistant? In
Rehabilitation Doesn’t Constitute Good Cause Under Proposition 36
June 25, 2021
David Saunders
Criminal Law
Does rehabilitation in prison constitute good cause to permit the filing of a second recall petition under Proposition 36? In
Supreme Court Clarifies Status of Published Review-Granted Opinions
June 4, 2021
David Saunders
Criminal Law, Appeals, Appellate Decisions & Rehearings , Review by California Supreme Court
What is the status of a published court of appeal opinion when the California Supreme Court grants review? The California Supreme Court’s Administrative Order 2021–04–21 “Standing Order Exercising Authority Under California Rules of Court, Rule 8.1115(e)(3), Upon Grant of Review or Transfer of a Matter with an Underlying Published Court of Appeal Opinion,” and the revised Comment to California Rules of Court, rule 8.1115, recently clarified this status.
Penal Code Section 832.7(b)(1) Applies Retroactively to Conduct That Occurred Before 2019
May 14, 2021
David Saunders
Criminal Law, Informal Discovery & Investigation, Discovery
Are the 2019 amendments to Penal Code section 832.7 retroactive to peace officer conduct and incidents that occurred before January 1, 2019? In
Court Must Find Unreasonable Danger That Defendant Will Commit Super-Strike Offense When Denying Mental Health Diversion
April 23, 2021
David Saunders
Criminal Law
Can a trial court deny mental health diversion to a defendant simply because the court finds that the defendant is too dangerous to receive treatment in the community? In
Usable Quantity Is Required Element for Offense of Bringing Controlled Substance Into Penal Institute
April 2, 2021
David Saunders
Criminal Law
Does a conviction for the offense of bringing a controlled substance into a penal institute require the amount to be a usable quantity? In
Certificate of Probable Cause Not Required to Challenge Sentencing Court’s Failure to Consider Mental Health Diversion
March 12, 2021
David Saunders
Appellate Law, Criminal Law
After a no-contest plea has been made, is a certificate of probable cause required to challenge on appeal an attorney’s failure to request an eligibility hearing for mental health diversion under Penal Code section 1001.36? In
Propositional Awareness for Criminal Practitioners
February 19, 2021
David Saunders
Criminal Law
Each year California voters use the referendum or initiative process to change the law, and these changes often affect criminal law. For example, in last November’s election, the voters passed Proposition 17, which restored the right to vote to parolees. But they also rejected both Proposition 20, which would have amended the policies related to sentencing charges, prison release and DNA collection, and Proposition 25, the referendum on the bail reform of SB 10. To help better understand the propositions that currently control California criminal law, here is a selection of them, arranged in somewhat reverse-chronological order.
Lesser Included Instruction on Willful Resistance of Public Officer Isn't Required When Jury Is Instructed on Attempting to Deter Officer by Means of Violence or Threat of Violence
January 29, 2021
David Saunders
Criminal Law
When a lesser included offense instruction is required under only one of two ways of violating a statute, and the accusatory pleading alleges both ways, but the jury is instructed only on the way of violating the statute that doesn’t require the lesser included offense, is the court still required to instruct on the lesser included offense? In
Old Car’s Value Can Be Established by Kelley Blue Book and Police Reports
January 8, 2021
David Saunders
Criminal Law, Evidence
What evidence should be submitted with a Proposition 47 petition to establish the value of an old car stolen twenty years ago? In
No Good Cause Exception to Holding Preliminary Hearing Beyond 60 Days During Pandemic
December 8, 2020
David Saunders
Criminal Law
Can the exceptional circumstances of the COVID-19 pandemic allow the court to continue a preliminary hearing for good cause beyond 60 days from the arraignment? In the latest case from the First District Court of Appeal addressing speedy trial rights and the pandemic, the court of appeal answered no. Unless the defendant waives time, the case must be dismissed.
Occasional Marijuana Use Not Sufficient to Impose Probation Condition Prohibiting It
November 20, 2020
David Saunders
Cannabis, Criminal Law
Is a probation condition prohibiting the use and consumption of marijuana valid if the defendant is only an occasional user of marijuana and the use was unrelated to the crime? In other words, should marijuana be treated like alcohol, another legal drug, when imposing probation conditions?
Trial Court Loses Jurisdiction To Adjudicate New Probation Violations After It Formally Revokes Probation
October 16, 2020
David Saunders
Criminal Law
After a trial court formally revokes probation without reinstating it, does the court retain jurisdiction to rule on a later probation violation in the same case? In
Misdemeanor Appellants Are Entitled to Court-Appointed Counsel on Appeal of Sentence for Probation
September 25, 2020
David Saunders
Criminal Law
Is an indigent defendant sentenced to probation in a misdemeanor case entitled to counsel for the appeal of the conviction? In the recent case of
Trial Court Can’t Instruct Jury Not to Consider Lesser Included Offense Before It Has Acquitted Defendant of Greater Offense
September 4, 2020
David Saunders
Criminal Law
Can a court instruct the jury not to consider a lesser included offense until the jury has acquitted the defendant of the greater offense? In
Certificate of Probable Cause Not Required To Appeal Plea Agreement Including Prior Serious Felony Enhancement
August 14, 2020
David Saunders
Criminal Law
Generally, a defendant must obtain a certificate of probable cause when appealing from a judgment of conviction following a plea of guilty or nolo contendere, or from a revocation of probation based on an admission of violation. (Pen Code, § 1237.5(b); Cal. Rules of Court, rule 8.304(b).) However, is a certificate of probable cause required to appeal a plea agreement that included a prior serious felony enhancement if a later law allows the trial court to strike the enhancement?
Failure to Appear Notification to DMV Requires Showing of Violation of Misdemeanor Statute
July 24, 2020
David Saunders
Criminal Law
Is the Department of Motor Vehicles required to suspend a driver’s license based solely on a notification from a court of a violation of the Notification Statutes (Cal. Veh. Code, § 40509, subd. (a), and Veh. Code, § 40509.5, subd. (a)), or does the DMV also require notice of a violation of the Misdemeanor Statute (Veh. Code, § 40508, subd. (a))? It used to be a practice of the DMV to suspend a driver's license upon notification of a failure to appear (“FTA”) in court, even if this notification did not include an additional, required notification that the FTA violated the Misdemeanor Statute.
Court Errs in Denying Petition to Consider Mitigating Factors in Resentencing of Marine Corps Veteran
June 12, 2020
David Saunders
Criminal Law
From time to time, a trial court will either fail to be aware of important changes in the law or understand how they might work. This can arise when resentencing petitions are filed after the enactment of ameliorative legislation. This problem was illustrated in the recent case of
First District Holds That COVID-19 Provides Good Cause for Continuance Beyond Speedy Trial Limits
June 10, 2020
David Saunders
Constitutional Law, Criminal Law
California's First District Court of Appeal
Excessive Force Claim Allowed Following Conviction for Disturbing the Peace, Second District Holds
June 1, 2020
David Saunders
Criminal Law, Litigation Practice & Procedure
California's Second District Court of Appeal
California Supreme Court Upholds No-Bail Order in Noncapital Case
May 22, 2020
David Saunders
Constitutional Law, Criminal Law
The California Supreme Court
Defendant Must Expressly Waive Time for a Preliminary Hearing When a Complaint Is Later Amended
May 15, 2020
David Saunders
Criminal Law
Does a defendant’s original waiver of time for a preliminary hearing continue when the complaint is later amended? In
COVID-19 Emergency Bail Schedule Sets Only the Bail's Presumptive Amount, Fourth District Holds
April 29, 2020
David Saunders
Criminal Law
California's Fourth District Court of Appeal
Court Can't Fine a Defendant for Failing to Complete a Form at a Hearing at Which Defendant Wasn't Present
April 17, 2020
David Saunders
Criminal Law
Can a court impose a fine on a defendant for failing to complete a “Prohibited Persons Relinquishment Form” at a hearing in a felony case at which the defendant wasn’t present? In
"Honest and Upright Life" Requirement May Be Fulfilled While in Custody, California Supreme Court Holds
April 9, 2020
David Saunders
Criminal Law
The California Supreme Court unanimously
Defendant Can't Waive Future Benefits of Retroactive Change in Law
April 3, 2020
David Saunders
Criminal Law
In a plea bargain, can a defendant ever waive the future benefits of a retroactive change in the law? Under the newly enacted Penal Code section 1016.8, which went into effect Jan. 1, a provision in a plea bargain that requires a defendant to generally waive future benefits of legislative enactments, initiatives, appellate decisions, or other changes in the law that may retroactively apply after the date of the plea is void as against public policy.
Second District Affirms Sanctions Against California Department of State Hospitals For Failing to Admit Defendants Incompetent to Stand Trial
March 6, 2020
David Saunders
Criminal Law
California's Second District Court of Appeal on Wednesday
What Constitutes a Prima Facie Showing When Filing a Penal Code Section 1170.95(c) Petition?
February 28, 2020
David Saunders
Criminal Law
What constitutes a prima facie showing when filing a Penal Code section 1170.95 petition? Should the court accept the allegations of the petition, or may the court go behind the allegations and look at the record of conviction and any previous opinions? In a series of recent cases, California's Second District Court of Appeal has answered this question: yes, it may.
California Supreme Court Decides Two Cases Regarding Case-Specific Hearsay
February 27, 2020
David Saunders
Criminal Law
The California Supreme Court on Thursday issued a pair of opinions regarding
California Appeals Court Strikes Down CDCR Regulation Excluding Nonviolent Sex Offenders From Early Parole Consideration
February 18, 2020
David Saunders
Criminal Law
California's Third District Court of Appeal on Thursday
