Monthly Archive: April 2020

California’s First District Court of Appeals has rejected a gang murderer’s claim that using his membership in a street gang as a special circumstance to support his life without parole sentence (LWOP) was unconstitutional.  The San Jose Mercury News reports that the court’s unanimous decision denied the claim, finding that the sentence enhancement for a killing that furthers the purpose of a gang does not violate the Eighth Amendment.   The case involved the 2014 first-degree murder conviction of David Arce for the killing of rival gang member Earl Hamilton.  After finding Arce, guilty of the murder, the jury found two special circumstances; the killing was gang related, and Arce was a convicted felon in possession of a firearm.  These findings qualified Arce for a sentence of LWOP.   On appeal, Arce claimed that the law allowing a special circumstance for a murder which furthered the purpose of a gang is unconstitutionally vague.   The court held that “It is difficult to conceive of a situation where a defendant would commit murder to further an innocent gang purpose.”   It is likely that Arce will appeal the decision.

In recent days national news reporting on the coronavirus pandemic has focused upon the race of those dying from the disease as proof of structural racial bias in the American health care system.  In an article published in today’s American Greatness, Manhattan Institute Scholar Heather MacDonald cites news stories across the country reporting that the fact blacks and Hispanics are dying from the virus at a higher rate than their proportion of the population is clear evidence of racial bias.  Responding to this disparity the Chief Equity Officer of the American Medical Association went so far as to assert the “widely known history that American health institutions were designed to discriminate against blacks.”

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Can a person live an “honest and upright life” and conform to and obey the “laws of the land” while confined?

In 2011, Misael Vences Maya, a lawful permanent resident of the U.S., pleaded guilty to driving under the influence with 6 prior DUI convictions and possession of methamphetamine.  He had also served two prior prison terms.  He was advised of the immigration consequences of his plea, which included possible deportation.  Maya was sentenced to 4 years 8 months prison without probation.  In late 2012, he completed his prison term and was immediately transferred to the custody of the Department of Homeland Security.  Because of his felony methamphetamine conviction, DHS commenced removal proceedings pursuant to 8 U.S.C. §1227(a)(2)(B)(i).  While still in immigration custody, California voters approved Proposition 47.  Maya then successfully applied to have his felony methamphetamine conviction reduced to a misdemeanor.  Because it was reduced to a misdemeanor, he then sought to have the conviction expunged pursuant to California Penal Code  §1203.4a.

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A divided Ninth Circuit panel has ruled that illegals seeking asylum who are held by ICE for more than six months are entitled to a hearing for possible release on bond.  Bob Egelko of the San Francisco Chronicle reports that the ruling could apply to thousands of migrants (read illegal aliens) held pending review of their asylum claims.  Dissenting judge Ferdinand Fernandez held that the ruling conflicted with a 2018 U.S. Supreme Court decision which announced that illegal aliens could be detained until their cases were decided.  But Judge Milan Smith, a W. Bush appointee, and Judge Eric Miller, appointed by Trump, found no conflict, citing an earlier 9th Circuit ruling announcing that asylum seekers are entitled to a bond hearing unless they are determined to be dangerous or likely to flee.  A San Francisco attorney representing the plaintiffs called the ruling “a tremendous victory for immigrants…”  He must have meant a tremendous victory for illegal immigrants.  Those who migrated here legally gain nothing from this ruling.

With the support of prison reform advocates and and some public health officials, thousands of jail and prison inmates are being released across the country due to the coronavirus pandemic.  Jeff Mordock of the Washington Times reports that although public defenders claim that those released are “nonviolent and elderly offenders” police groups say many are repeat offenders including  serious criminals and sex offenders.  A Director at the pro-release Justice Action Network, told reporters that “No process is ever going to be perfect,” noting that, from her perspective, releases where 20-30 percent are dangerous offenders is acceptable.  In Chicago, hundreds of inmates are being released anonymously from from jails because public defenders and State’s Attorney Kim Foxx believe their identities need to be protected so they are not “opened to further stigma.”  As is typical in Chicago politics the State’s Attorney is blaming the Sheriff for keeping the names secret while the Sheriff says the State’s Attorney is responsible for reporting who is getting released.  It is clear that progressive, pro-criminal groups and politicians are using the current pandemic as an excuse to advance their political agenda.  As usual, the law abiding public will pay for this.