Articles Posted in court system

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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.
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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.
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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.  

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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.

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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.  

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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.

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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.

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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.

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I have had many clients come to me and say, either jokingly or for real, can’t I pay someone to “take care of this?” I always laughingly say, “This isn’t Chicago with Al Capone and gangsters running the courts”. Apparently, I was wrong. At least 600 cases involving traffic citations, DUI arrests, and other assorted cases being “fixed” are being investigated in the Orange County court system.

Many defendants in Orange County are being called into court to explain how their cases were either dismissed, fines suspended, charges reduced, or otherwise resolved all without anyone actually appearing on their matters. The answer appears to be that a clerk in a supervisorial position in the Orange County court entered into the record fraudulent transactions resolving the cases in return for lots of money.

From many defendants’ point of view the idea of paying someone to handle their case is in line with their cultural beliefs. Many in our community have recently immigrated from countries where paying money to government officials to resolve their matters without going to court is a way of life. Coming to the United States and continuing that practice is not something that is seen as criminal but is a normal manner of dealing with the government. A large segment of the community is not educated in the law and as long as they don’t have to go to court and face a judge, paying more than would be required to a third party is a small price to pay.

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Wyoming-Prison.jpgRecently an inmate in Wyoming was released after serving 24 years in prison for a crime he did not commit. Many states recognize the injustice suffered by the wrongfully imprisoned and require the state compensate the victim. When our system of justice fails it can have disastrous consequences for those victimized. The criminal justice system is not infallible, and when it makes a mistake that costs a person most of his adult life there is a method of providing monetary compensation.

In Wyoming the State Legislature decides if the innocent is worthy of compensation and how much. In this case, Mr. Andrew “A.J.” Johnson had a criminal record prior to his being incarcerated for 24 years for a crime he did not commit. You might think that spending 24 years in prison is worth some kind of compensation. You might think that 24 years of your life spent wasting away in a prison cell, when you are innocent of the crime charged, would be worthy of some type of compensation by those who wrongfully took your freedom and liberty away. In Wyoming, you would be wrong.

You see, Mr. Johnson had a criminal record prior to his being wrongfully accused and convicted and put away. He had a record for theft and burglary. In Wyoming that means the legislature does not feel it necessary to compensate him for the 24 years spent in prison. In fact, Mr. Johnson was awarded nothing. He was given no compensation for losing most of his life to a criminal justice system that failed him.