Articles Posted in court system

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The issue of getting a fair and impartial judge to hear your case is obviously important in every case. However, what can you do when you think the judge is prejudiced against you and your case? You could file a challenge to the judge pursuant to the Code of Civil Procedure section 170.6. A 170.6 petition allows you a one time per case ability to disallow the judge who has been assigned to the case from hearing it.  You do not have to prove bias on the part of the judge but you must file it upon hearing who the judge is.  Once you agree to have that judge hear the case you have given up your right to have the judge removed because of the 170.6 petition.   Once the time passes for your 170.6 motion, the only recourse is to file a Motion to Recuse, to remove the judge from your case. Recusing a judge is a serious matter, as it involves the removal of a judicial officer from a case due to a potential conflict of interest or bias. Recusing a judge is a legal mechanism designed to ensure that the administration of justice is fair and unbiased. In California, the primary grounds for recusing a judge can be broadly categorized into two main categories: statutory grounds (Code of Civil Procedure sections 170-170.9) and ethical considerations.

Statutory Grounds:

1. Bias or Prejudice: One of the primary statutory grounds for recusing a judge in California is the presence of bias or prejudice that might reasonably lead a party to believe they will not receive a fair trial. This can be demonstrated through the judge’s prior actions, statements, or behavior that suggests a predisposition against a party.

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If the state deports a key witness in your trial, your case could be dismissed. Two cases, People v Torres and People v Roldan, outline when this might happen.

In December 2006, the state charged Juan Roldan with the shooting of Saba Barrera. Roldan allegedly shot Barrera three times due to Barrera’s affiliation with a rival gang. In addition to this charge, the state also charged Roldan with the murder of two more rival gang members. In the time between Roldan’s arrest and the trial, the police also arrested Barrera for his gang affiliation, and he was later taken into custody by Immigration and Customs Enforcement (ICE). While Barrera was in a federal immigration hold, the prosecution collected his testimony at a preliminary hearing. After the preliminary hearing, Barrera was deported and was not able to testify at Roldan’s trial. The prosecution still used Roldan’s preliminary hearing testimony at the trial. Barrera’s testimony was the strongest piece of evidence at the trial. Without it, the jury may not have found Roldan guilty and he would not have been sentenced to life in prison without parole.

Roldan appealed his guilty verdict by challenging the fairness of the trial. As Barrera, the key witness for the prosecution, was not at the trial, Roldan’s defense attorney could not cross-exam the statements made by Barrera. The prosecution didn’t attempt to delay Barrera’s deportation thinking they could just use the prior testimony from the preliminary hearing. The failure to do anything to stop deportation of the key witness against him violated Roldan’s Constitutional Right to Confrontation, the ability to challenge any witness’ testimony. As a result, the Court of Appeals of California overturned Roldan’s conviction and granted him a new trial.

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Under new legislation effective January 1, 2019, you could be eligible for diversion under Penal Code Section 1001.36.  This new law allows those who suffer from a mental condition, such as bipolar or schizophrenia, when that mental disorder played a significant role in the commission of the charged offense, to apply to have their cases diverted out of the criminal courts.  The defendant would have to be able to respond to mental health treatment, not pose an unreasonable risk to public safety and agree to comply with the terms of the treatment plan.  The diversion process could take up to two years to complete.  However, at the successful end of the two year process the case would be dismissed without ever pleading guilty or going to trial first.
This landmark legislation recognizes the impact that mental illness has in the community and that crimes committed which are caused by the mentally ill should be treated differently than those committed by people with evil intent.
The diversion petition is so new that how the courts and prosecutors will accept it remains to be seen.  But, it’s a hopeful sign that the criminal justice system is adding a little more humanity and justice into the mix.  Cases such as these are difficult, complex, and require sophistication in their representation.  I’ve been a Certified Specialist In Criminal Law since 1991 and handled many cases involving these mental health issues.  Call me if you have a loved one who suffers from a mental health condition that has landed him or her in the criminal justice system.  I can help.
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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.
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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.
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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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