Articles Posted in court system

Published on:

If you’re charged with a misdemeanor crime in Orange County you may be eligible for a program that is currently being utilized by the Orange County District Attorney’s Office.  This program is the Deferred Entry Of Judgement Program or DEJ.  Not all misdemeanors are eligible but if yours is, or your attorney can convince the District Attorney’s Office that yours should be, you can have your case eventually dismissed.
The DEJ Program requires that you plead guilty with a continuance of your sentencing while you submit to a DNA test, are fingerprinted, photographed, complete a one or two day life skills class and not get arrested for 90 days.  Your DNA sample does go into the “system” and can be used against you if your DNA ends up at a crime scene in the future.  However, if you do all of the above you can withdraw your guilty plea and have your case dismissed 90 days after your plea is entered.  Of course, if you do get arrested in the 90 day window or fail to do the class or not live up to your end of the bargain, your conviction would remain and you would be sentenced.
While this program is in existence, and there’s no guarantee it will continue, it is a great option to keep a conviction off your record.
Published on:

The internet is a powerful tool.  It allows us to instantly look up the score of a game, figure out who was the 14th president of the US  and find out how many miles away mars is.  But is everything on the internet to be relied on?  What if  a police officer pulls a motorist over. The driver is asked to get out of the car.  The officer says, “May I search you?”  The driver answers, ” Of course officer.”  During the search the officer finds numerous different pills in the driver’s pockets.  He suspects the pills are controlled substances and decides to arrest the driver.  When the case comes to court, can the prosecution expert rely on the internet to identify the pills as illegal?  Doesn’t the crime lab have to do it’s scientific analysis?  What can the prosecution expert rely on in stating his opinion?
You would think that under the rule stated in People v Sanchez (2016) 63 Cal. 4th 665, a very important California Supreme Court case, which basically held that experts can’t use testimonial hearsay in trial as the basis of their opinions, the internet couldn’t be used as the basis of their opinions.  This issue would come up routinely in gang prosecutions where the police expert would testify that one of the bases of his opinion that a defendant was a gangster was interviews with other police officers in prior contacts with law enforcement.  The court said that those prior statements were testimonial hearsay and couldn’t be used in court against the defendant.  Well, if that’s the case, obviously statements on the internet are something that can’t be quoted…right?  Wrong.
Recently in People v Espinosa 2018 D.A. R. 4531 decided May 14, 2018, the 2nd District Court of Appeal ruled that an expert called by the prosecution could rely on Ident-A-Drug to presumptively identify the pills found in the above driver’s pockets as illegal.  Ident-A-Drug is an internet drug reference compilation that is used by law enforcement and others to look at the pills pictured and compare them to the drugs found.  Evidence Code section 1340 basically is how the hearsay objection was defeated.  Evidence Code section 1340 says that if the compilation is “generally used and relied upon as accurate in the course of business” it’s admissible.
Published on:

New Rule of Professional Conduct
RPC 5-110(D)
Defense attorneys used to argue all the time with the prosecutors about whether or not they were required to turn over exculpatory evidence (evidence pointing towards innocence) they, the prosecutors, didn’t deem “material”.  In other words, the prosecutor got to decide what would information would be turned over to the defense and what wouldn’t be turned over. If the prosecutor didn’t think it made a difference to the Defendant they were the ones who decided the defense doesn’t get it.  It was like asking the fox who was guarding the hen house if the hens needed protecting…of course the answer from the fox was …no, of course not, I’ll let you know when they’re in danger…Such was the state of the burden on the prosecutors until recently.
Published on:

I have tried at least fifty cases that included a police officer who is called by the District Attorney as a “gang expert”.  The gang expert always testifies that the crime committed by the accused was done for the benefit of his gang.  This testimony occurs even when the crime occurs far away from the accused’s home territory and is completely unrelated to anything related to his gang.  For example, I had a case where a Santa Ana gang member and his two friends broke into cars in Laguna Niguel after a night of drinking at a party in the South Orange County area.  No gang signs were left at the scene and no one would have known a gang member had committed the car burglaries.  Even so, the gang expert testified the burglaries benefited the gang because the members gained money from the crime.
This overstretching and tortured testimony is no longer going to be allowed by the courts.  Now in the recent case of People v Perez, decided December 18, 2017 the Court of Appeal reversed a conviction for a gang crime in a case where there just wasn’t any evidence to support the testimony that it was done for the benefit of the gang.  In Perez, the defendant was a validated gang member,, who fired a gun at a party.  The Court ruled in very strong language that ” Not every crime committed by a gang member is gang related…..merely belonging to a gang at the time of the commission of the charged conduct does not constitute substantial evidence to support an inference that sole actor specifically intended to promote, further, or assist any criminal conduct by gang members.”  The police gang expert had testified that any crime of violence enhanced the gang’s reputation by instilling fear in the community.  Finally, a court has ruled that despite the inherent prejudice against gang members and gang crime not every crime is gang related even when it’s committed by a known, validated, heavily tattooed gang member.
Now when I make the same objection I’ve made for years the judge will have to rule in my favor, even though he doesn’t want to.  The rule of law prevails, sometimes it just takes awhile.
Published on:

For years the law in California was use of a gun in the commission of a felony meant a State Prison sentence if convicted.  The consequences of gun use in commission of a crime went beyond just the fact that it made a State Prison sentence mandatory, it also meant that the credits a person earned in custody were limited.   In addition, for future crimes, the use of a gun meant that it was a violent felony.

Now, under Senate Bill 620 starting January 1, 2018, anyone charged with the enhancement of Penal Code Section 12022.5 or 12022.53  (use of a gun during a felony) may become probation eligible if the judge strikes the enhancement.  SB620 gives the judge, who is doing the sentencing, the option to strike the 12022.5 or 2022.53 enhancement if he or she feels it is appropriate in the interests of justice.

How this will be implemented is still unresolved.  If the Court strikes the enhancement pursuant to Penal Code section 1385(a) then it may be that the crime is no longer a violent felony leading to the possibility that the underlying crime isn’t even a strike.  However, if it is stricken only for purposes of sentencing, it may be that the conviction will still qualify as a strike and decrease the credit for time served.  

Published on:

Can prosecutors strike minorities from a jury simply because of their race?

Since 1978 criminal attorneys in California have not been allowed to remove potential jurors from a jury simply because of their race. During voir dire, or jury selection, counsel on both sides have preemptory challenges and can remove jurors for basically any reason, from being too young, too old, too mean looking, you name it. But minorities are a protected class and a person can’t be excluded from a jury simply because of their racial profile.

But even with this so-called Batson/Wheeler protection, minorities have been getting kicked off of juries for decades. Attorneys who thought having a certain race on the jury panel would disadvantage their case would just kick them off and give other excuses, even if those excuses were flimsy. People v. Gutierrez, 2017 DJDAR 5100 (June 1, 2017), a new case from the California Supreme Court, has recently put some teeth back into Batson/Wheeler challenges.

Published on:

So you find yourself on probation after working out a plea bargain with the District Attorney.  Your lawyer and you have entered into a deal where you will spend 3 years on formal supervised probation.  What does this really mean to you though?  

Being on probation is when you are conditionally released back into the community instead of going to jail or prison for the maximum term possible for whatever crime you committed.  Let’s say you plead guilty to a crime that has a maximum possible sentence of 3 years in custody.  Instead of serving those 3 years in custody and being done with your obligations, you are put on put on probation.  You are released into the community but the possibility of doing the 3 years in custody hangs over you if you don’t meet all the obligations of being on probation.  

One common requirement of someone on probation is that the probationer not possess firearms or illegal drugs.  This seems pretty clear.  If you are on probation you shouldn’t have in your possession guns or illegal drugs.  However, recently in the case of People v Hall (2017 D.A.R. 1235 February 9, 2017) the question was does the probationer have to be in knowing possession.  

Published on:

We’ve all heard of it, but unless you need it you probably have no idea exactly how it works or how to get it. The idea behind bail is to prevent a defendant from running away after he or she has been arrested. The theory is that if someone puts up a large amount of money, he is not likely to walk away from it. The other reason to set bail is, danger to the community. The more serious the crime the higher the bail.

Recently there has been a move to change the structure of bail as some feel it discriminates against poor people. Although the bail amount is determined by the severity of the crime not the financial status of the person who committed it, clearly someone who is poor will have a harder time affording it than someone who is wealthy.

The amount of the bail is pre-set according to a bail schedule, based on the seriousness of the crime. The theory is that if someone posts a million dollars of bail money, he is likely to show up in court to protect his money. The more serious the crime, the more incentive a defendant might have to flee from punishment, so the higher the bail.

Published on:

In a criminal case, a defendant is entitled to a unanimous verdict by all the jurors selected to hear his case.  Many times if only one juror votes in a defendant’s favor it’s a win for the defense.  The prosecutor  may choose not to go to trial again and dismiss the case or will plea bargain the case in a way that benefits the defendant.  Many times when a jury is hung with the count overwhelmingly in favor of one side or the other (usually against the defendant) the judge and the DA will try to identify the holdout juror, isolate that juror, and remove the juror in order to get a resolution of the case.

That’s what happened recently in the case of People v Armstrong, a 2016 from the 4th District Court of Appeal.  The defendant was facing the death penalty and was in the penalty phase of the trial.  In other words, he was guilty, but now the jury had to decide whether to vote for death or life in prison without parole.  One juror was refusing to vote for death and became the “hold out” blocking a verdict.  The judge removed the juror from the case in light of the frustration expressed by the other jurors.  However, there wasn’t any showing that the juror wasn’t participating in deliberations.  In fact, the juror was deliberating but just disagreed with the other jurors’ conclusions. Removing the juror was found to be error and caused the court to reverse the death sentence.

The role of the defense lawyer when a jury appears to reach an impasse is critical.  A mistrial declared because a jury can’t reach a unanimous verdict is almost always a victory for the defendant.  Any time the prosecution can’t get a conviction in trial the defendant wins.  The defense attorney has to object at the right time and must seek a mistrial and a “do over” whenever possible.  If the defense lawyer is “asleep at the wheel” and doesn’t raise the objection at all or doesn’t raise the right one the defendant suffers.  Getting the right lawyer who stays on top of the case can make all the difference.  It can even determine life and death.  Whether it’s a death penalty case, like Mr. Armstrong’s, or one with a much lesser penalty every case needs the trial lawyer to stay strong, alert, and make the right moves.

Published on:

California Vehicle Code Section 2800.1 and 2800.2 make it illegal to flee or attempt to evade a police officer. The individual who flees from the police after the police turn on the overhead lights would seem to be in for trouble. What with helicopters, sophisticated radio communication, and everyone on social media instantly following the chase it would seem to be a hopeless proposition. In fact, fleeing from the police can result in a felony conviction punishable by up to 3 years in State Prison and a $10,000.00 fine. If someone is injured during the chase the punishment goes up to a possible 7 years in State Prison and again a $10,000.00 fine. If someone just simply refuses to stop and pull over it can be a misdemeanor.

In order to be guilty of a crime of felony evading a police officer the officer had to have an emergency light illuminated, a siren was sounding as necessary, the person is willfully attempting to evade and is driving in a willful or wanton disregard for the safety of persons or property. Ironically, all of the reckless and wanton driving can occur with lights flashing and siren wailing but if the prosecutor doesn’t do his or her job, a defendant can still be found not guilty. For one fortunate defendant in a recent case, a Mr. Byrd (People v Byrd, July 29, 2016, D.A.R. 7772), the strict requirements of proof worked to his advantage. The prosecutor in Mr. Byrd’s case failed to prove that the pursuing officers, not just one officer but both, were wearing distinctive uniforms as required by Vehicle Code Section 2800.1. That being said, Mr. Byrd’s conviction was overturned on appeal because the prosecutor did not prove the police were wearing their uniforms.

 

The apparent lesson to be learned is no matter how egregious the conduct, the prosecutor still has to prove all the elements of the crime and if they aren’t proven, there is hope for everyone charged with a crime.  Of course, you need to have a defense attorney who understands this and can capitalize on the mistakes of the prosecutor.