Case Law Update: 2011-2014 Cumulative Edition

Holding: Although court had previously found sex offender registration law to be nonpunitive, subsequent amendments which increased the amount of reporting offenders had to do and for longer times made the amendments punitive and ex post facto as applied to offenders whose offenses predated the amendments.
Cleveland Hts. v. Lewis, 2011 WL 2275817 (Ohio 2011):

Holding: Completion of a sentence will not render an appeal moot where Defendant did not acquiesce in the sentence or abandon the right to appeal.
Hendricks v. Jones, 93 Crim. L. Rep. 769 (Okla. 9/17/13):

Holding: Application of sex offender registration statute to persons whose similar convictions arose in other states but not in Oklahoma violated Equal Protection; “discrimination based on the jurisdiction in which the conviction occurred has no rational basis for protecting the public.”
Bollin v. Jones ex rel. State ex rel. Oklahoma Dept. of Corrections, 2013 WL 5204134 (Okla. 2013):

Holding: Controlling sex offender registration requirements were those in effect when Offender, who was convicted outside Oklahoma, entered Oklahoma, rather than those in effect later when Oklahoma authorities notified Offender about registration; therefore, Offender was not required to register.

Burk v. State ex rel. Dept. of Corrections, 2013 WL 5476403 (Okla. 2013):

Holding: Statutory amendment eliminating option to reduce a sex offender’s level assignment did not apply to Offender whose reduction proceeding was begun before the effective date of the amendment.
Starkey v. Oklahoma Dept. of Corrections, 2013 WL 3193674 (Okla. 2013):
Holding: State Sex Offender Registration Act was punitive, not regulatory, and thus retroactive application of Act to extend offender’s registration period was ex post facto; the Act’s obligations were excessive in relations to its non-punitive public safety purpose.
Haugen v. Kitzhaber, 2013 WL 3155366 (Or. 2013):

Holding: Governor’s commutation of death sentence was valid and effective regardless of whether death-sentenced person “accepted” it or not.
State v. Heisser, 2011 WL 814959 (Or. 2011):

Holding: Plea agreement that permitted State to seek upward departures and Defendant to seek presumptive sentences did not prevent Defendant from challenging the timeliness of the State in seeking the upward departures.
Com. v. Mazzetti, 2012 WL 1975370 (Pa. 2012):

Holding: Where State agreed to waive a mandatory minimum sentence in exchange for a guilty plea and probation, the State could not seek to impose the mandatory minimum when Defendant violated his probation.
Com. v. Foster, 2011 WL 1124597 (Pa. 2011):

Holding: Defendant’s challenge to mandatory minimum sentence is a legal question and is not waivable.
Fross v. County of Allegheny, 89 Crim. L. Rep. 423 (Pa. 5/25/11):

Holding: County’s sex offender living restrictions were pre-empted by state law.
State v. Graff, 2011 WL 1465465 (R.I. 2011):

Holding: Judge lacked authority to order Defendant to do work-release program two years after sentence was originally imposed; judge lacked authority to modify sentence after it was originally imposed.
State v. Miller, 2013 WL 3048635 (S.C. 2013):

Holding: Trial court lacked authority to toll Defendant’s probation for his criminal offenses until he was released from involuntary SVP commitment; tolling of probation must be based on a violation of a condition of probation or a statutory directive.
State v. Medicine Eagle, 93 Crim. L. Rep. 695 (S.D. 8/7/13):

Holding: State’s failure to file an information alleging a prior conviction that will be used to enhance sentence is a jurisdictional defect.
State v. Berget, 2013 WL 28400 (S.D. 2013):

Holding: Sentencing court erred in using Defendant’s unwarned statements to a psychiatrist during a pretrial competency hearing to impose the death penalty, since this violated Estelle v. Smith, 451 U.S. 454 (1981).
State v. Bruce, 89 Crim. L. Rep. 89 (S.D. 4/6/11):

Holding: 100-year sentence for possession of child pornography for Defendant with no other record was disproportionate and violated 8^th Amendment ban on cruel and unusual punishment.
State v. Richardson, 2012 WL 167330 (Tenn. 2012):

Holding: Appropriate remedy for prosecutors’ improper denial of pretrial diversion applications is to remand cases to the prosecutor, where the impropriety stemmed from prosecutors’ failure to weigh all relevant factors.
State v. Johnstone, 2013 WL 3957629 (Vt. 2013):

Holding: Even though Defendant made threatening statements about his probation officer to his girlfriend, this was insufficient to revoke probation without any evidence that he intended for the probation officer to ever hear or learn of the statements; Defendant was merely “mouthing off” to his girlfriend.
State v. Hunley, 92 Crim. L. Rep. 182 (Wash. 11/1/12):

Holding: Due process does not permit a court to enhance sentence based on prior convictions which are proven solely by a prosecutor’s unsworn summary of the defendant’s record.
State v. Griffin, 2012 WL 19751 (Wash. 2012):

Holding: Evidence rules applied in fact-finding hearing to determine whether defendant was a rapid recidivist for sentencing purposes.
In re Heidari, 2012 WL 1355964 (Wash. 2012):

Holding: Following the reversal of a conviction for second-degree child molestation due to insufficient evidence, the appellate court could not remand for resentencing on the lesser included offense of attempted child molestation because the jury was not instructed on the attempt offense.
In re Personal Restraint of Carter, 263 P.2d 1241 (Wash. 2011):

Holding: Where a Defendant/Petitioner claims that he is actually innocent of prior convictions used to enhance a later sentence, then he may use an actual innocence exception to the postconviction time limits to challenge the prior convictions.
State v. McGill, 92 Crim. L. Rep. 243, 2012 WL 5834573 (W.Va. 11/15/12):

Holding: State restitution statute does not permit police to recover cost of searching for Defendant in a “manhunt.”
State v. Judge, 2012 WL 987479 (W. Va. 2012):

Holding: A sex offender was not required by the Sex Offender Registration Act to re-register with the state police following his release from jail for an unrelated charge.
State v. Melton, 2013 WL 3467123 (Wis. 2013):

Holding: Trial court lacked “inherent authority” to destroy a PSI of a Defendant in violation of a 50-year retention rule for court records.
Bear Cloud v. State, 92 Crim. L. Rep. 575 (Wyo. 2/8/13):

Holding: Statute providing life imprisonment for juveniles “according to law” is constitutional only if it specifies the time when the juveniles will be eligible for parole.
Solis v. State, 88 Crim. L. Rep. 374 (Wyo. 12/16/10):

Holding: Where Defendant stole goods “on sale,” he is liable for restitution at the “sale price” and not the full retail price.
Gomillion v. State, 2011 WL 6279027 (Ala. Crim. App. 2011):

Holding: Prior guilty pleas were not “prior convictions” under Habitual Felony Offender Act.


State v. Adams, 2010 WL 4380236 (Ala. Crim. App. 2010):

Holding: Requiring indigent, homeless sex offender to provide an actual address where they would be living before they could be released from prison under violated Equal Protection Clause.

State v. Espinoza, 2012 WL 1511733 (Ariz. Ct. App. 2012):

Holding: The trial court lacked subject matter jurisdiction, when imposing probation in a felony case, over the defendant’s delinquency adjudication for a sex offense.
In re Heard, 166 Cal. Rptr. 3d 824 (Cal. App. 2014):

Holding: Even though a statute provided for a mandatory youth parole hearing in the future, this did not cure Miller error in effective juvenile LWOP sentence of 80 years to life because the youth parole statute cannot allow the sentencing court to disregard the constitutional duty to consider juveniles and adults separately when sentencing juvenile-Defendant.
People v. Lewis, 94 Crim. L. Rep. 392 (Cal. App. 12/16/13):
Holding: Where a Juvenile has both homicide and non-homicide offenses, court must look at the sentence as a whole to determine how 8^th Amendment restrictions on LWOP for juveniles applies.
People v. Rodriguez, 166 Cal. Rptr.3d 187 (Cal. App. 2013):

Holding: A probation condition in receiving stolen property case that Defendant “stay away” from victims was fatally ambiguous because it did not specify whether it applied to one or both victims, did not sufficiently identify the victims or the vehicles they operated, and there was no evidence Defendant even knew who the actual victims were, so he had no notice of how to stay away.
People v. Douglas M., 2013 WL 57661105 (Cal. App. 2013):

Holding: Statute imposing additional conditions on probation for sex offenders did not apply retroactively because this likely would violate ex post facto in that, among other things, the statute required probationers to make additional payments and waive privileges against self-incrimination and psychotherapist privilege.
People v. Tirey, 2013 WL 6047027 (Cal. App. 2013):

Holding: Statute allowing relief from sex offender registration for offenders convicted of sexual intercourse with children age 10 or younger, but not relief for offenders convicted of lewd acts with children under 14, violated Equal Protection.
People v. Wortham, 2013 WL 5755193 (Cal. App. 2013):

Holding: Trial court’s denial of inmate’s petition to recall his sentence under the Three Strikes Reform Act was appealable, because it affects substantial rights and the trial court’s action foreclosed possibility of reduced sentence.


People v. Juhasz, 2013 WL 5492340 (Cal. App. 2013):

Holding: Even though Defendant had refused drug treatment in a prior case, this cannot be used in a later case to trigger the “refused drug treatment as a condition of probation” exception to mandatory treatment and probation for nonviolent drug offenders.
People v. Ramirez, 2013 WL 4850302 (Cal. App. 2013):

Holding: Sentences imposed on juveniles which were equivalent to LWOP for first and second degree murder violated 8^th Amendment; neither defendant was “the rare juvenile offender whose crime reflects irreparable corruption,” even though one of the shootings was for gang affiliation; there is no reason to make a decision at sentencing to imprison a juvenile for life, since this decision is a judgment that can be made at a later parole hearing.
In re Stoneroad, 2013 WL 1680513 (Cal. App. 2013):

Holding: Even though Defendant could not remember his charged murder due to intoxication, his lack of memory was insufficient to establish future dangerousness and deny parole.
People v. Schoop, 2012 WL 6705177 (Cal. App. 2013):

Holding: Statue which had a 10-year rehabilitation period before a person convicted of possession of child pornography could seek relief from registration but only a 7-year period for advertising or sending child pornography was not supported by a rational basis and, thus, violated Equal Protection.
People v. Lewis, 2013 WL 2144963 (Cal. App. 2013):

Holding: Three Strikes reform law applied to Defendant who was sentenced before the effective date of the Act, but whose conviction was not yet final on appeal.
People v. Daniels, 145 Cal. Rptr. 3d 33 (Cal. App. 2012):

Holding: A defendant’s increased fine and restitution after a new trial violates Double Jeopardy only if the aggregated monetary sentence, not each component thereof, is greater than that originally imposed.
In re Martinez, 2012 WL 5278950 (Cal. App. 2012):

Holding: Parole Board’s refusal to release quadriplegic inmate because he posed threat to public was not supported by evidence since his physical condition limited his ability to be a threat and he was being released to an acute care facility where he would be unlikely to harm anyone.
In re Taylor, 2012 WL 3968550 (Cal. App. 2012):

Holding: “Jessica’s law,” which made it illegal for sex offenders to live within 2000 feet of school, was unconstitutional if applied to all offenders because it was not tailored to type of victim or risk of reoffending, and made it impossible to find housing in 97% of county; law could, however, be applied to some offender in individual cases.

People v. Argeta, 2012 WL 6028241 (Cal. App. 2012):

Holding: Sentence of 100 years without parole for 75 years was functional equivalent of LWOP as applied to a juvenile and thus violated 8^th Amendment.
D.M. v. Department of Justice, 147 Cal. Rptr. 3d 798 (Cal. App. 2012):

Holding: Sex offender registration statute which granted “certificates of rehabilitation” to persons who had sexual intercourse with certain minors but not to persons who had oral sex with minors violated Equal Protection.
People v. Moffett, 148 Cal. Rptr. 3d 47 (Cal. App. 2012):

Holding: Statutory presumption in favor of LWOP of 16 and 17 year olds convicted of murder violated Miller v. Alabama.
People v. Quarterman, 2012 WL 182881 (Cal. App. 2012):

Holding: Fully litigated probation revocation hearing had collateral estoppel effect in new hearing based on the same violation.

People v. Wade, 2012 WL 1150847 (Cal. App. 2012):

Holding: An amendment of the grand theft statute increasing the monetary threshold for the offense applied retroactively because the amendment was motivated by a desire to save the state money by avoiding sending certain defendants to prison.
People v. Kunath, 2012 WL 579879 (Cal. App. 2012):

Holding: When sentenced on all charges to concurrent terms, the defendant’s presentence custody credit must be applied to all charges to equalize the time in custody between those who obtain presentence release and those who do not.
In re Young, 2012 WL 834786 (Cal. App. 2012):

Holding: Parole board failed to give due consideration to an indeterminate life prisoner’s case, and thus violated due process in denying him parole.
People v. Scott, 2012 WL 615829 (Cal. App. 2012):

Holding: The trial court lacked the authority to prohibit a defendant, who had been convicted for sexually abusing two minor females, from visiting one of the victims who had reached the age of 18 at the time of sentencing.
People v. Allexy, 2012 WL 1263500 (Cal. App. 3d Dist. 2012):

Holding: Imposing but suspending the defendant’s sentence while deferring the decision as to whether the defendant had to register as a sex offender was improper, and the court should have suspended imposition of sentence instead.
People v. P.A., 92 Crim. L. Rep. 244 (Cal. App. 11/15/12):

Holding: Probation condition that required Juvenile to keep his parents and probation officer informed of his “whereabouts, associates and activities” was unconstitutionally vague.

People v. Roberts, 2011 WL 1992028 (Cal. App. 2011):

Holding: Statements of record by Defendant, his counsel and the victim after a court accepted his guilty plea were not statements in the “record of conviction” and thus were not admissible to prove the assault involved great bodily harm so as to be a strike under Three Strikes Law.
People v. Gray, 2011 WL 4060299 (Cal. App. 2011):

Holding: Ex post facto principles were violated by retroactive application of One Strike law.
People v. Moses, 2011 WL 4357307 (Cal. App. 2011):

Holding: Probation conditions prohibiting contact with people in vehicles while on foot and vice versa were overbroad.
People v. Ruffin, 2011 WL 5178348 (Cal. App. 2011):

Holding: Mandatory sex offender registration for inmates but not guards for sex in prison violated equal protection.
People v. Ruffin, 90 Crim. L. Rep. 273 (Cal. App. 11/2/11):

Holding: Statute that required sex offender registration for prison inmates who engage in consensual oral sex with adults in prison, but did not require registration for prison guards who engage in the same conduct, violated equal protection; court notes that oral sex by consenting adults is legal outside of prison.
People v. J.I.A., 2011 WL 2206910 (Cal. App. 2011):

Holding: Even though 14-year old Defendant would be eligible for parole at age 70, his sentence of 50 years plus consecutive life sentences was a de facto life without parole sentence and violated 8^th Amendment ban on such sentences for nonhomicide juveniles.
People v. Patel, 2011 WL 2452602 (Cal. App. 2011):

Holding: Probation conditions require that violations be undertaken knowingly.
People v. Cruz, 2011 WL 3278584 (Cal. App. 2011):

Holding: Where a statute purported to give probation officers sole discretion to determine if a probationer should be required to wear a GPS device, this violated separation of powers doctrine because the trial court determines the conditions of probation.
People v. Barajas, 2011 WL 3672076 (Cal. App. 2011):

Holding: Probation condition that prohibited Defendant from being “adjacent” to a school was impermissibly vague.
People v. Sharret, 2011 WL 61876 (Cal. App. 2011):

Holding: A criminal laboratory fee was punitive and should not have been imposed on a count that was stayed under the statutory prohibition against multiple punishment for crimes arising from a single course of conduct.
People v. Garcia, 2011 Wl 1467950 (Cal. App. 2011):

Holding: Where Defendant had unlawfully copied DVD’s in his house (apparently for potential distribution), the DVD’s represented only potential economic loss to the recording industry trade association, so restitution to them was not authorized.
People v. Zarate, 2011 WL 489751 (Cal. App. 2011):

Holding: Even though part of Defendant’s sentence occurred before enactment of a good-time credit statute, Defendant was entitled to apply the statute to his whole sentence.
In re Vicks, 2011 WL 1778224 (Cal. App. 2011):

Holding: Victim’s Bill of Rights which increased interval between parole hearings was ex post facto when applied to prisoner sentenced before the law.
People v. De Jesus Nunez, 2011 WL 1758995 (Cal. App. 2011):

Holding: Sentence on juvenile, for aggravated kidnapping and attempted murder, which precluded parole for 175 years violated 8^th Amendment; juvenile had diminished responsibility as a juvenile.
People v. Trask, 119 Cal. Rptr. 3d 91 (Cal. App. 2010):

Holding: Defendant cannot be terminated from deferred entry of judgment program based on solely on inability to pay program fees.
In re Macias, 2010 WL 4457309 (Cal. App. 2010):

Holding: Defendant’s failure to agree with Parole Board on version of the offense did not support denial of parole.
People v. Rosa, 2010 WL 5162124 (Cal. App. 2010):

Holding: Trial court could lower restitution and fines after remand from appellate court.
People v. Duarte, 2010 WL 4629071 (Cal. App. 2010):
Holding: Defendant could not be punished for street terrorism in addition to underlying crime of discharging a firearm with gross negligence, since this violated statutory prohibition against multiple punishment for single course of conduct.
People v. Rainer, 2013 WL 1490107 (Colo. App. 2013):

Holding: Aggregate sentence of 112 years for Juvenile-Defendant, under which he would not be eligible for parole until age 75, violated 8^th Amendment under Graham.
People v. Ruch, 2013 WL 3480249 (Colo. App. 2013):

Holding: Revocation of Defendant’s probation for his refusal to admit the offense during court-ordered treatment (which was a probation condition) while his direct appeal was pending violated his 5^th Amendment right against self-incrimination.

People v. Torrez, 2013 WL 1240883 (Colo. App. 2013):

Holding: Where one statute required concurrent sentences for crimes based on identical evidence, but another statute required consecutive sentences in certain sex cases, the sex offender statute did not operate as an exception to the general rule of concurrent sentences because it did not discuss what should happen if the crimes were based on identical evidence.
People v. Henson, 2013 WL 1235859 (Colo. App. 2013):

Holding: In determining amount of restitution to be awarded for stolen diamond ring which had been repaired and altered during the time it was gone from its owner, the court should determine the replacement value of the ring and cost of repair, and subtract from that the fair market value of the ring as returned to its owner (and not use the low price paid for the damaged ring by a jeweler while it was stolen).
People v. Palomo, 2011 WL 3332327 (Colo. App. 2011):

Holding: Court could only assess prosecution costs against Defendant for counts he was convicted of, not for counts he was not successfully prosecuted for.
People v. Griffin, 2011 WL 915714 (Colo. App. 2011):

Holding: Definition of “residence” in sex offender registration law does not require that Defendant register where he merely intends to live, without ever being physically present there.
Peters v. State, 2013 WL 6083405 (Fla. App. 2013):

Holding: Application of Florida sentencing law after Graham v. Florida, which resulted in some Juveniles getting sentenced more harshly than others who had committed more serious crimes, violated the gross proportionality element of 8^th Amendment.
Felder v. State, 2013 WL 3238157 (Fla. App. 2013):