THE PANDEMIC IS GOOD CAUSE TO DELAY TRIALS The pandemic is good cause to delay trials: “the severity of the COVID-19 pandemic and the impact it has had within this state independently support the trial court’s finding of good cause to continue defendant’s trial under Penal Code section 1382.” Stanley v. Superior Court (2020) __ Cal.App.5th __; A160151; 6/9/20; C/A 1st, Div. 4

PRELIM HAD TO BE DISMISSED FOR DELAY WITHOUT GOOD CAUSE EVEN WITH COVID-19 As a result of covid-19, the 10-day preliminary hearing time limit was extended to 15 days (now 30 days). When a preliminary hearing is continued past day 15, the case must be dismissed absent a showing of good cause. “In order to show good cause to continue Petitioner’s preliminary hearing past March 25, 2020, some showing was required of a nexus between the conditions created by the pandemic and the purported need to delay the hearing.” No such showing was made. “In the absence of a particularized showing of a nexus between the pandemic and the Superior Court’s purported inability to conduct Petitioner’s preliminary hearing in a timely fashion, the Superior Court abused its discretion in finding no violation of section 859b.” Bullock v. Superior Court (2020) __ Cal.App.5th __; A160153; 6/24/20; C/A 1st, Div. 5

FEDS WITHHOLD EVIDENCE: NO DISMISSAL Inability to compel federal agents to provide information to the defense does not require dismissal where state officials did nothing improper. Moreover, the defense failed to show that the withheld material was material, meaning that it might change the outcome of the trial. If the defense is “precluded from pursuing his or her principal defense,” that might be a due process violation. People v. Aguilera (2020) __ Cal.App.5th __; D075381; 6/17/20; C/A 4th, Div. 1

DISCOVERY VIOLATION REQUIRES REVERSAL During trial the prosecutor called a police officer without disclosing the anticipated testimony or his diagrams and notes. The testifying officer’s diagrams and his notes with his calculations qualify as reports required to be disclosed under PC 1054.1(f): “We therefore conclude section 1054.1, subdivision (f) required the prosecution to disclose to the defense the substance of Sergeant Berns’s testimony, including his notes, as soon as they were aware of them.” What should have happened was a continuance long enough for defense counsel to consult an expert. Denial of the mistrial was error. The jury instruction that the DA provided late discovery did not solve this, since the defense did not have time to challenge it. People v. Hughes (2020) __ Cal.App.5th __; E069445; 6/10/20; C/A 4th, Div. 2

ODOR OF MARIJUANA DOESN’T JUSTIFY A SEARCH The police here legally stopped the minor. The police smelled the odor of marijuana on the minor’s clothes and breath. The minor admits to having just smoked marijuana. The police search the minor for more marijuana and find a revolver. At the time of this search, possession of less than an ounce of marijuana was an infraction and was a non-jailable offense. After Prop. 64 it remains an infraction for minors, but is actually lawful for those age 21 and up. “[I]t would have been mere conjecture to conclude that he possessed enough to constitute a jailable offense” and the search is thus unconstitutional. In re D.W. (2017) 13 Cal.App.5th 1249 Cf. People v. Waxler (2014) 224 Cal.App.4th 712 People v. Strasburg (2007) 148 Cal.App.4th 1052


The odor of freshly burnt marijuana meant that there was a “fair probability” that a search might yield additional contraband. And this conduct was not lawful; the defendant might have been driving under the influence of marijuana and at least he had an open container of marijuana (a half-burnt cigar with marijuana). People v. Fews (2018) 27 Cal.App.5th 553

“The recent legalization of marijuana in California means we can now attach fairly minimal significance to the presence of a legal amount of the drug on Lee’s person, and the remaining facts cited by the People do not provide any reasonable basis to believe contraband would be found in the car.” People v. Lee (2019) 40 Cal.App.5th 853

The police smelled burnt marijuana when making a legal stop. The defendant said he had “bud” in the center console. The officer searched the console, finding slightly over one gram of marijuana in a closed container. This search was not legal. So the loaded pistol that was found during the ensuing search was not justified by any reasonable suspicion and is suppressed. People v. Shumake (2020) 45 Cal.App.5th Supp. 1

The law bars driving with an “open package of cannabis.” A baggie knotted closed at the top is not “open.” Just because the baggie can be opened does not mean that it is open. “[T]he odor of marijuana alone no longer provides an inference that a car contains contraband because individuals over the age of 21 can now lawfully possess and transport up to 28.5 grams of marijuana.” Health and Safety Code section 11362.1, subdivision (c), enacted by Prop. 64, says that “[c]annabis and cannabis products involved in any way with conduct deemed lawful by this section are not contraband nor subject to seizure, and no conduct deemed lawful by this section shall constitute the basis for detention, search, or arrest.” This is clear and does not permit a claim that good faith can be used to avoid suppression here. People v. Johnson (2020) __ Cal.App.5th __; C089373; 6/15/20; C/A 3rd

PROBATION SEARCH CONDITION HAS TO BE KNOWN BEFORE THE SEARCH An officer is permitted to conduct a warrantless search even without reasonable suspicion for a suspect on probation with a search condition. But the officer has to know about the probation search condition before conducting the search. Here dispatch did not say that the supposed probation was with a search condition, and the officer’s assumption that all probationers are subject to search conditions did not permit the search. The fact that the officer was new and made an unreasonable assumption cannot qualify as good faith. People v. Rosas (2020) __ Cal.App.5th __; B295921; 6/8/20; C/A 2nd, Div. 6

OBJECTIVELY REASONABLE MISTAKES OF FACT BY THE POLICE An element of Penal Code section 148 is that the officer has to be acting in the lawful performance of his duties. The Fresno Municipal Code which bars blocking a sidewalk applies only to persons blocking the sidewalk, not carts. Thus the detention was unlawful. The Heien case (574 U.S. 54) says that an objectively reasonable mistake of fact by a police officer does not require exclusion of evidence obtained as a result of that mistake. The Fresno Municipal Code is clear, not ambiguous, and the officer’s conclusion that the defendant violated the code was not objectively reasonable. People v. Gerberding (2020) __ Cal.App.5th Supp. __; Fresno Sup. Ct. 2816; 5/12/20; Fresno County Appellate Division