Non-Capital Litigation

The Non-Capital Litigation program supports the development of OSPD attorneys working to meet the qualifications to be lead counsel in a capital appeal. Attorneys in this program handle non-capital, felony postconviction matters to gain the level of training, skill, and experience needed to represent clients in capital appeals. In addition to developing the attorney’s appellate practice skills, we ensure the client receives excellent representation.

The program has advanced the law in a wide range of areas, raised novel arguments addressing every stage of criminal trial procedure, achieved success regularly, and worked with clients to ensure their voices are heard throughout the process.

Listed below are the results of some of the program’s work over the last several years and the issues we have raised.

Selected Case Outcomes

Reversal of murder conviction based on violation of Miranda.
Reversal of court’s denial of Penal Code section 1172.6 resentencing petition based on court’s failure to hold a hearing.
Reversal of murder conviction and client’s release under Penal Code section 1172.6.
Reversal of burglary conviction based on violation of Fourth Amendment rights and the Harvey-Madden Rule. Prosecution chose not to retry defendant.
Reversal of court’s denial of Penal Code section 1172.6 resentencing petition based on court’s misreading of operative statute.
Reversal of multiple counts of conspiracy and assault based on improper testimony of police officer and gang expert. Court of Appeal disapproved of the use of overview witnesses in state court proceedings.
Reversal of court’s denial of Penal Code section 1172.6 resentencing petition where the court proceeded to the hearing stage without defendant present.
Reversal of denial of Penal Code section 1172.6 resentencing petition where trial court failed to account for defendant’s youth at the time of the crime.
Petition for writ of habeas corpus granted where client had been convicted of gang offenses, but the California Supreme Court later reinterpreted the gang statute as applied to defendants who act alone in People v. Renteria (2022) 13 Cal.5th 951.
Defendant released home from sentence of life without parole where multiple changes in law led to successful habeas petition under People v. Banks, successful resentencing petition under Penal Code section 1172.6, and striking of gang allegations under amended gang statute (AB 333).
Petition for writ of habeas corpus granted in appellate court based on improper “kill zone” and aiding and abetting instruction; and case reversed for possible retrial and new resentencing petition under Penal Code section 1172.6.

Other Issues Litigated or Pending

Whether California’s lifetime ban on possessing any firearm by persons convicted of felonies violates the Second Amendment, as in recent opinions in the United States Supreme Court.
Whether “prostitution” is properly deemed a crime of moral turpitude allowing district attorney to impeach defense witness.
Whether trial court erred in denying resentencing under Penal Code section 1172.6 to defendant who tried to prevent coparticipant in a robbery from committing murder and who feared coparticipant.
Whether trial court violated defendant’s due process rights in admitting into evidence at Penal Code section 1172.6 hearing grand jury testimony that defendant had no prior opportunity to cross-examine.
Whether prosecutor may take inconsistent positions in trials of two participants in a robbery, arguing first that one defendant was the actual killer, then arguing that the other defendant was the actual killer, and then returning to initial claim after first defendant sought relief under Penal Code section 1172.6.
Whether assault with a firearm was proven on allegations that defendant engaged in an argument and fired into the ground and not in alleged victim’s direction.
Whether defendant is guilty of felony murder where he was not the actual killer, was not recklessly indifferent to human, and did not aid in the act of killing under Penal Code section 189, subdivision (e).
Whether trial court erred by failing to order witness to testify under a grant of immunity after prosecutor stated they had no reason not to offer immunity but failed to do so,
Whether trial court erred in holding restitution hearing without client present and in ordering direct victim restitution to person who had later purchased the automobile from victim of alleged fraud
Whether trial court erred in barring jury from learning about defendant’s delusion, which led him to believe family member was in danger and motivated alleged assault