Public Defenders’ Acceptance of Appointment in Habeas Petitions under the Racial Justice Act is Discretionary.

 

Harmon v. Superior Court (4^th Dist., Div.2, 01/20/2026)

 

Reed, serving a 51-life sentence, petitioned the trial court for a writ of habeas corpus asking for relief under California’s Racial Justice Act (RJA) based upon the prosecutor and witnesses using racially discriminatory language.  The trial court found Reed’s petition stated facts which would constitute an RJA violation and set the case for an evidentiary hearing.

Reed’s retained lawyer withdrew prior to the hearing and the trial court appointed the Public Defender (PD).  The PD attempted to decline the appointment and requested alternate counsel be appointed.  The trial court held a hearing on the issue and ruled the PD was required to accept appointment, absent a conflict or unavailability.  The PD petitioned the Court of Appeal for a writ of mandate.

In a 2-1 opinion, the panel holds that court appointments of the PD on RJA habeas cases may be declined at the PD’s discretion.

The issue is framed as whether RJA habeas appointments fall under subsection (a) or (g) of Government Code section 27706(a).  Gov. C. 22706 pertains to the scope of duties of PD offices.  Subsection (a) describes the circumstances upon which a PD “shall defend,” and subsection (g) describes circumstances under which a PD “may represent.”  Giving the words “shall” and “may” their ordinary meanings, the opinion says PDs have the discretion to decline appoints in (g) cases, while in (a) cases there is no such discretion.

In interpreting the statute, the majority notes sub(a) contains the phrases “shall defend,” and “conducting the defense,” while sub(g) uses the phrase “may represent.”  It finds this useful because in a habeas proceeding, the defendant actuals prosecutes the writ; he defends nothing.  The panel also notes habeas proceedings are “separate actions” from the criminal case. 

Along with citations to instructive (but on on-point) cases, the majority finds RJA habeas proceedings fall under the “may represent” of sub(g).  Thus, a PD has discretion whether to accept a court’s appointment.  The writ is issued with directions to vacate the order compelling the PD to represent Reed and appoint someone else. 

There is a curious concurrence.  This justice interprets the two subsections differently, finding sub(a) applies to cases where a defendant has a right, statutory or Constitutional, to an attorney while sub(g) applies to cases where no right to counsel exists but where appointment is permissible.  This isn’t the curious part.  The curious part is the concurrence states it agrees with the result, remanding to the trial court to determine, “whether the public defender has a conflict . . . or is unavailable[.}”  Which isn’t the result at all. 

 

 Failure of the Government to Comply with PC §853.6(a) does not Absolve a Defendant’s FTAs from Consideration among the Barker Factors for 6^th Amendment Speedy Trial Analysis.

 

People v. Superior Court (4^th Dist., Div.2, 1/16/26)

 

One Ms. Lashelle was arrested for DUI on October 2, 2021.  She was released upon a promise to appear in court December 12, 2021.  November 17, 2021, the prosecutor filed a misdemeanor complaint charging her with DUI.

Lashelle bench warranted after she failed to appear on December 12, 2021.  She was later arrested on the warrant and released on another promise to appear with which she failed to comply and picked up another bench warrant.  Years later, in March of 2024, she voluntarily placed herself on calendar and did appear and pled not guilty. 

January 2025, Lashelle moved to dismiss her case for a violation of her 6^th Amendment right to a speedy trial.  The trial judge denied her motion, ruling that the years long delay was her own doing.

Lashelle petitioned the Appellate Division of the trial court for a writ, which was granted.  The Appellate Division ruled that because the prosecution had not filed the complaint within 25 days of Lashelle’s arrest, the government had no right to demand her appearance in court.  This, the Division ruled, meant the trial court had no personal jurisdiction over her.  Consequently, any delays due to Lashelle’s failing to appear when she promised could not be considered in determining whether the delay from arrest to trial was her fault.

The prosecutor filed a document in the Fourth District Appellate Court which it labeled a “petition for transfer.”  A panel of the Fourth treats it as a petition for a writ.  And it grants the writ petition.

The panel spends a lot of ink navigating the abstruse topic of appellate procedure, pleading, and jurisdiction.  In the merits portion of the opinion, the panel points out the Appellate Division’s errors. 

For purposes of the constitutional right to a speedy trial, a delay of over a year from arrest to trial is presumptively prejudicial for a misdemeanor case.  This presumptive finding triggers an analysis under what are known as the Barker factors from the case Barker v. Wingo (1972) 407 U.S. 514.   The Barker analysis includes determining which side is more to blame for the delay. 

The panel points out that just because the prosecutor failed to file the complaint within 25 days of Lashelle’s arrest, it did not lose the right to demand her appearance.  In fact, failing to appear in such circumstances is a new crime for which one can be fines and subsequently arrested.  The second error is finding that a trial court loses jurisdiction if no complaint if filed within 25 days, pointing out the effect of such a failure is merely to strip the promise to appear of its status as an accusatory pleading. 

In the end, the panel holds that Lashelle’s failures to show up to court when she promised can be held against her as a Barker factor.  With that, the case is remanded to the trial court to hold another hearing on her speedy trial motion.     

 

 

 

 

 

 Holding a hearing and entering a denial on the merits in response to a defendant’s “invitation” to the court to exercise its discretion to resentence per PC §1172.1, creates an appealable issue.

People v. Craig (2^nd Dist., Div.7, 01/15/2026)

Craig took a plea deal in 2015 for 23 years, pleading guilty to clothing store robberies.  It was a second-striker sentence with enhancements for use of a gun, PC §12022.53(b), and having a prior serious felony, PC §667(a)(1).

In 2024, following the passage of sentencing reform laws, Craig filed with the trial court a PC §1172.1, “petition” to recall his 23-year sentence and conduct a full resentencing under current law.  In response, the trial court held a hearing in November 2024.

At the hearing, the court heard argument from Craig and the prosecutor.  Craig highlighted his rehabilitation while in prison, his employment plans upon release, his young age at the time of the robbery, and the Craig’s codefendant had received a resentencing where his prior serious felony enhancement had been stricken.  The prosecutor recited the effect of Craig’s crime upon his victims and Craig’s prison rule violations. 

The trial court said it considered Craig’s documents, the case history, the plea agreement, and details of the offense.  The court said defendants who accept plea agreements need to live up to their end of the bargain.  It was not persuaded that Craig “was young and that he has ‘rehabilitated’ himself.”  It denied the “petition.”  Craig appealed. 

This panel reverses and remands for a new hearing.

The AG’s first contention is that Craig has no right to appeal.  This because a defendant is not authorized to initiate a recall and resentence under PC §1172.1.  Those authorized to initiate proceedings under 1172.1 include CDCR, the prosecutor, and the trial court (upon changes in law).  A defendant has no ability to “file a petition,” under 1172.1.  What a defendant may do is “invite” or ask the trial court to initiate 1172.1 proceedings on the court’s own motion.  However, a court is not required to respond to a defendant’s invitation, 1172.1(c). 

By statute, a defendant has a right to appeal a court order that affects their substantial rights.  The AG points out, correctly, that Craig has no substantial right to initiate his own 1172.1 resentencing.  AG cites to cases holding no right to appeal when a defendant invites 1172.1 resentencing and the trial court summarily denies the invitation.

Craig responds that here the court did not summarily deny his invitation, rather it ordered and held a hearing, took and weighed evidence, and gave a statement of reasons supporting its denial.  This, Craig argues, was a decision on the merits which effected his substantial rights, not a summary denial.

The panel agrees finding the trial court’s actions in holding a hearing, taking and weighing evidence, and ruling on the merits was a constructive acceptance of Craig’s “invitation,” to resentence on the court’s own motion.  The opinion points out the trial court proceeded in the same way it would have if an authorized party (prosecutor, CDCR, etc.) had initiated the process, finding Craig’s substantial rights were affected and a right to appeal attached.

On to the merits of the appeal, the panel finds the trial court erred in two ways.  First, it denied resentencing based on its belief someone who takes a plea bargain must honor it.  This is an improper reason.  “Trial courts are not bound by the terms of an earlier plea agreement when resentencing under [1172.1].  Doe v. Harris (2013) 57 Cal. 4^th 64, 66.  

Second, the trial court did not consider that which it was legally required to consider, Craig’s  rehabilitation efforts and young age at the time of the crime.  The court, “shall consider postconviction factors, included . . . the disciplinary record and record of rehabilitation while incarcerated.”  PC §1172.1(a)(5).

The panel finds these two errors were prejudicial.  That had trial court not committed the two errors, it was more likely than not Craig would have been resentenced.  The upshot is Craig gets another 1172.1 hearing where the trial court will, hopefully, apply the correct law. 

 

 

                 When the Transcript Doesn’t Support the Court’s Decision

People v. Aguilar, 4th District Court of Appeal (Jan 1, 2026)

California Code of Civil Procedure section 231.7 was enacted to curb the unlawful use of peremptory challenges during jury selection.  In section 231.7, the legislature created several “presumptively invalid” reasons to kick jurors (subs (e) and (g)) and procedures upon 231.7 objections.  If challenger gives a “presumptively invalid reason,” they are to be given an opportunity to overcome the presumption.  This case presents such a challenge.

Aguilar was charged with crimes related to fleeing from, and shooting at, police officers.  At jury selection, the prosecutor asked Jurors 1 (described as Latina) and 4 (undescribed) questions related to a hypothetical.  This to supposedly probe the jurors ability to understand the element of intent.   

The Jurors 1 and 4 were asked their opinion of “Jane’s” intent in the following hypo.  Jane enters a fast-food restaurant, purchases a burger, takes it to a table, sits down, and brings the burger to her mouth, only to place it back on the table and exit the restaurant.  

Juror 1 was asked whether Jane’s exit changed Juror 1’s opinion that Jane entered the restaurant with the intent of eating a burger.

Juror 1: No.

Prosecutor: Okay, why?

Juror 1: Well, usually people are forgetful in that situation, so maybe she went out to go get something.  So, I wouldn’t assume that her intention was not to eat the burger.

Prosecutor: So, you believe that she intended to eat the burger, but something may have happened that caused her to leave it on the table?

Juror 1: Correct.

The prosecutor used a peremptory on Juror 1 and Aguilar objected saying the prosecution removed her because she was Latina.  The prosecutor proffered that they removed Juror 1 because she, “kept going back and forth with her answers . . . it didn’t make sense to me” as to the burger hypothetical.  The judge agreed Juror 1’s answers to the hypo were equivocal and found Juror 1 confused on the issue of intent.  Juror 1 was excused.

After the selected jury convicted him, Aguilar appealed, and the appellate court reversed. After a nice recitation of section 231.7, the panel finds the transcript does not contain substantial evidence that Juror 1 was equivocal or confused in her answers to the hypothetical.  Rather, her answers, supra, were clear, much clearer than those of Juror 4, who remained on the jury.  

The judgement is reversed and Aguilar gets a new trial.

                                      _______________________________

H&S 11395 Defendants are Eligible for Mental Health Diversion via PC 1001.36

Reed v. Superior Court, First District (December 30, 2025)

Is a defendant charged with H&S §11395 eligible for pretrial mental health diversion (PC §1001.36), or is post-plea 11395 treatment the sole diversion option?

Reed had three felony cases.  One for violating H&S §11378 and two for H&S §11395.  Because the §11378 case was not eligible for 11395 treatment and dismissal, Reed requested mental health diversion for all three cases.  The prosecutor objected, arguing that 11395 cases were not eligible for mental health diversion due to the 11395 phrase, “[n]otwithstanding any other laws.”

The trial judge, in a textbook example of how not to interpret statutory language, agreed with the prosecution and ruled Reed’s 11395 cases were ineligible for 1001.36 diversion.  Reed petitioned for a writ of mandate. 

The appellate court held Reed’s 11395s were eligible for pretrial mental health diversion.  First, 11395 does not expressly say 11395 cases are excluded from 1001.36 mental health diversion.  The prosecution’s citation to the phrase, “notwithstanding any other laws,” gets the Inigo Montoya response by the panel.  It clarifies the phrase means to “override any law contrary.”  As 1001.36 says nothing contrary to 11395, the prosecution’s argument makes no sense.  Finally, the rule against implied repeal trumps the prosecution’s policy arguments cobbled together from various Voter Guides and Ballot Pamphlets.  

Reed gets his writ of mandate.  The trial court is directed to rule on whether Reed is suitable for pretrial mental health diversion for all three of his cases.  

                                __________________________________________________

Damaging a Jail (PC §4600(a)) is a More Specific Statute of Vandalism (PC §594) Under the Williamson Rule

People v. Jimenez (Fifth District, 01/01/2026)

Jimenez was in the county jail.  He used a broom handle to hit and crack his cell’s window.  The local prosecutor charged Jimenez with two crimes: [1] vandalism over 400 dollars per PC §594(a) and [2] damaging a jail per PC §4600(a).

At trial, a county facilities department employee testified the new window cost $245.47 and the cost to install the new window was $161.97.  The prosecutor argued Jimenez’s vandalism amount was the cost of the window and installation, $407.44.  The defense moved for acquittal, arguing the installation cost should not be included.  The trial court denied the defense motion and the jury convicted Jimenez on both counts.  Because he had a prior strike, Jimenez got six years.

On appeal, Jimenez argues the trial court got it wrong and that installation costs cannot be included to meet the $400 threshold which demarcates felony from misdemeanor.  He also argues that he could not be convicted of both counts under the Williamson rule.  

The panel holds the dollar amount for purposes of accessing vandalism includes the cost of installation.  It uses the “substantial nexus” test and finds the cost of installing the new window has a substantial nexus to Jimenez’s act of bashing the cell window.  His second argument, the Williamson rule precludes his §594 conviction gets more traction.  

The Williamson is a judicially created tool that precludes prosecution under a general statute for conduct that also violates a more specific statute.  This by inference that a legislature, in enacting the more specific statute, intended the conduct to be prosecuted exclusively under the special statute.

The rule has been applied when [1] each element of the general corresponds to an element of the specific, or [2] it appears a violation of the specific will necessarily or commonly result in a violation of the general.  

The panel examines the two statutes here and determines that damaging jail property under PC §4600(a) would necessarily and commonly result in vandalism under §594.  So, Jimenez’s 594 conviction is reversed.  

Fortuitously for Jimenez, §4600(a) has a misdemeanor/felony point of $950, higher than the $400 line for §594.  This means Jimenez is now only guilty of a misdemeanor and is looking at one year inside instead of six.

                                        ______________________________________

California’s prohibitions on “Assault Weapons,” (PC §30605(a)), Carrying Loaded Guns not Registered to You (PC §25850(a), (c)(6)) and Large-Capacity Magazines (PC §32310(a)) all Pass Constitutional Muster

People v. McCowan (First District, Division One, 01/13/2026)

McCowan was pulled over for not using his turn signal.  Due to McCowan not having a valid license, the police had McCowan’s car towed.  While inventorying the car’s contents, police found a pistol.  The pistol had 13-round magazine, met California’s legal definition of an “assault weapon,” and was not registered to McCowan.

McCowan plead guilty to possessing an assault weapon, possessing a loaded gun unregistered to him, and possession of a gun magazine capable of holding more than 10 bullets.  

In the published portion of this opinion, the panel rejects McCowan’s arguments that the statutes under which he was convicted are facially unconstitutional because they violate the Second Amendment under the U.S. Supreme Court’s Bruen opinion.

Two things stand out in this opinion.  First, California courts will engage in all sorts of circumlocutions to uphold gun restrictions.  Second, our current U.S. Supreme Court is not very capable at its job.  To paraphrase the late former Justice Sandra O’Connor, the job of the Supremes is to resolve the dispute in front of it and provide clear guidance to lower courts on how to resolve similar issues in the future.  Our Supremes succeed at the first (hard to imagine how it could fail) but are miserable at the latter.

The current state of Second Amendment jurisprudence from the Supremes is to ask the initial question of whether the “Second Amendment’s plain text covers the individual’s conduct,” prohibited by the statute.  If so, the burden is on the government to justify the statute by proving it is consistent with the Nation’s historical tradition of gun laws.

How a court frames the first question is a giveaway as to its attitude towards gun regulation.  As to the “assault weapon” ban, McCowan frames the initial question as whether McCowan carrying a pistol for protection falls within the plain text of the Second Amendment.  Clearly it does.  McCowan then argues that there is no historical tradition of banning “assault weapons.”

In contrast, government frames the initial question as whether McCowan carrying an “assault weapon” for protection falls within the plain text.  It argues “assault weapons” are not the type of “arms” protected by the Second Amendment, thus the answer to the first question is, “no,” and that ends it, avoiding the messy historical tradition question. 

To be fair to this panel, its opinion upholding the Constitutionality of the three gun laws at issue can be objectively read as consistent with the Bruen decision.  But so could a Bruen-consistent opinion hold all three unconstitutional.

                        _______________________________________

A Defendant Identified for PC §1172.75 Resentencing is Entitled to Resentencing Despite Being Paroled Prior to His Hearing.

People v. Washington (2nd Dist., Div. 1, 01/13/2026)

Washington’s 2019 eight-year prison sentence included two former PC §667.5(b) one-year enhancements, which were stayed under PC §654.

In 2020, with exceptions inapplicable here, the Legislature retroactively repealed §667.5(b) and enacted procedures for the identification of persons then serving sentences containing §667.5(b) enhancements.  These people were entitled to have their sentenced recalled and be resentenced according to current law.

Washington was identified in 2022 as such a person.  April 2024, he went back to the trial court for resentencing, but the trial court ruled Washington was not entitled to resentencing because while his sentence include two §667.5(b) enhancements, the fact they were stayed disqualified him from resentencing.  Washington appealed the trial court’s ruling.

While the appeal was pending, the California Supremes decided in People v. Rhodius (2025) 17 Cal. 4th 1050, that all sentences containing §667.5(b) enhancements, stayed or not, were to be vacated and a resentencing held.  Around the same time, Washington was released on parole.

This time around, the California AG cynically argues that Washington is no longer entitled to resentencing because he is no longer in custody.  The AG rightfully loses because the statutory language unambiguously includes people on parole.    The legal status of a parolee is that of a person in constructive custody of CDCR.  They do not possess the Constitutional rights of non-parolees, rather the limited rights of someone in actual custody.  And resentencing may have important consequences despite the §667.5(b) enhancements having been stayed.  If Washington is resentenced to less than his original sentence of eight years, he may apply any excess custodial credits towards reducing his period of parole.