Here, statute decoder Garrick Byers, talks about the effect of newly approved Prop 36 and its impact on California's Three Strikes law.
http://www.claraweb.us/wp-content/uploads/2012/11/3Strikes-What-to-do-Now-2012-Nov-7-Byers1.pdf
Monday, December 10, 2012
Prosecutor Suspended for Withholding Evidence In Gang Murder Case
A veteran prosecutor who improperly withheld crucial evidence in a San Jose gang murder case until the brink of trial has been suspended for a month without pay for incompetence and misconduct.
The suspension of Daniel Carr is the maximum penalty District Attorney Jeff Rosen could impose short of demoting or firing the prosecutor, and it cost Carr four weeks' pay -- $16,500. It is the latest example of Rosen's effort to fulfill his campaign promise to share evidence early and fully with defense attorneys to avoid problems that have allowed some prosecutors to ignore judges' orders and conceal evidence.
The problem surfaced early in 2011, shortly after Rosen took office. Twenty-eight days before a group of eight suspected gang members were to stand trial, Carr began revealing a treasure trove of information to their attorneys, including a statement by a co-defendant taken three years earlier and the fact that the alleged murder weapon, a knife, had been discovered in 2008.
Under California law, prosecutors must turn over evidence at least 30 days before trial, though Rosen and many other DAs and judges in California expect it to be turned over far sooner, partly for efficiency's sake. After the belated disclosure of the evidence in this case -- and a last-minute plea agreement by one of the defendants -- the trial was delayed and is now set to start early next year.
Carr's conduct stands out for several other reasons, according to the disciplinary notice, including the sheer volume of withheld evidence, the judge's finding of a violation, the need to reassign the case and the inability of the new prosecutor to know what evidence had been provided to the defense. It took two paralegals three months to figure it out.
But the argument that has gained the most sympathy among Carr's fellow prosecutors is his claim that gang-unit prosecutors commonly withheld valuable evidence from defense attorneys until the last minute to protect witnesses and their families from the very real risk of being knifed or shot by gangsters in retaliation.
However, in February 2009, Carr told Judge Gilbert Brown -- after defense attorneys expressed concern he was withholding evidence -- that he was "not holding anything back.'' Under the law, prosecutors are supposed to seek a judge's permission to withhold evidence, especially in big cases where late disclosure can cause significant delays. Carr argues in his appeal that his supervisors sanctioned the practice of not going to a judge.
After the scandal erupted, Rosen issued a memo instructing other gang-unit prosecutors to immediately turn over any information they were holding unless they got a judge's permission to hold onto it. At least one other prosecutor complied, Carr notes, contending that proves he, Carr, did nothing out of the ordinary. But none of the other gang prosecutors had apparently gone as far as Carr had by amassing a mountain of discovery and exceeding the final 30-day deadline. Carr was motivated by his belief that the defendants were guilty, and was trying to make sure justice was served, according to the notice.
The suspension of Daniel Carr is the maximum penalty District Attorney Jeff Rosen could impose short of demoting or firing the prosecutor, and it cost Carr four weeks' pay -- $16,500. It is the latest example of Rosen's effort to fulfill his campaign promise to share evidence early and fully with defense attorneys to avoid problems that have allowed some prosecutors to ignore judges' orders and conceal evidence.
The problem surfaced early in 2011, shortly after Rosen took office. Twenty-eight days before a group of eight suspected gang members were to stand trial, Carr began revealing a treasure trove of information to their attorneys, including a statement by a co-defendant taken three years earlier and the fact that the alleged murder weapon, a knife, had been discovered in 2008.
Under California law, prosecutors must turn over evidence at least 30 days before trial, though Rosen and many other DAs and judges in California expect it to be turned over far sooner, partly for efficiency's sake. After the belated disclosure of the evidence in this case -- and a last-minute plea agreement by one of the defendants -- the trial was delayed and is now set to start early next year.
Carr's conduct stands out for several other reasons, according to the disciplinary notice, including the sheer volume of withheld evidence, the judge's finding of a violation, the need to reassign the case and the inability of the new prosecutor to know what evidence had been provided to the defense. It took two paralegals three months to figure it out.
But the argument that has gained the most sympathy among Carr's fellow prosecutors is his claim that gang-unit prosecutors commonly withheld valuable evidence from defense attorneys until the last minute to protect witnesses and their families from the very real risk of being knifed or shot by gangsters in retaliation.
However, in February 2009, Carr told Judge Gilbert Brown -- after defense attorneys expressed concern he was withholding evidence -- that he was "not holding anything back.'' Under the law, prosecutors are supposed to seek a judge's permission to withhold evidence, especially in big cases where late disclosure can cause significant delays. Carr argues in his appeal that his supervisors sanctioned the practice of not going to a judge.
After the scandal erupted, Rosen issued a memo instructing other gang-unit prosecutors to immediately turn over any information they were holding unless they got a judge's permission to hold onto it. At least one other prosecutor complied, Carr notes, contending that proves he, Carr, did nothing out of the ordinary. But none of the other gang prosecutors had apparently gone as far as Carr had by amassing a mountain of discovery and exceeding the final 30-day deadline. Carr was motivated by his belief that the defendants were guilty, and was trying to make sure justice was served, according to the notice.
Wednesday, October 3, 2012
Expungement Explained
The first thing that someone who wants to apply for an expungement needs to understand is that if your petition is granted under Penal Code 1203.4, your case is not sealed. A criminal record is not actually "expunged" under this statute. That term implies complete erasure, as if the case had never occurred. A more proper term is "dismissal". The conviction remains on your record for many purposes, including sex offender registration and immigration consequences. What the statute provides is it allows the defendant to be released from all penalties and disabilities resulting from the offense. There are numerous limitations to this relief.
An adult who was granted probation, completed all the terms of probation, and is no longer on probation, is eligible for relief under this statute. He or she must not be on probation, or serving a sentence, for any other offense. (Penal Code § 1203.4).
If you were denied probation you can still obtain an expungement. You still cannot be on probation or serving a sentence for any other case. Applicants must wait one year after their conviction before applying for an expungement (Penal Code§1203.4a).
If your criminal case was reduced to an infraction you are eligible for an expungement under Penal Code section 1203.4a.
What are the effects of expungement under PC1203.4/1203.4a?
It Will:
1. Result in a new entry in the court record showing the dismissal of your case;
2. Allow you to answer on many, but not all, job applications that you have not been convicted. If, however, you are applying for a government job or a job which requires a government-issued license, certificate, or permit, or a job which involves a security clearance, the conviction will be discovered; in such cases, you should disclose the initial conviction and its later expungement;
3. Prevent use of the conviction to impeach you if you testify as a witness, unless you are being tried for a subsequent offense.
4. If the conviction was for a felony, expungement is the first step in obtaining a pardon.
It Will Not:
1. Remove the conviction from your "Rap Sheet" - California and FBI criminal history records will still show the conviction and the later dismissal "per PC 1203.4";
2. Reinstate the right to possess firearms, if it was taken away (reduction to a misdemeanor may accomplish this if the offense is not one of violence);
3. Remove the requirement to register as a sex offender per PC290. If the expungement is granted, registrants must then complete and file paperwork requesting a Certificate of Rehabilitation, when eligible. A Certificate of Rehabilitation will relieve specified sex offenders from further registration. This is true for both felony and misdemeanor convictions.
4. Allow you to omit the conviction from applications for government issued licenses;
5. Seal or otherwise remove the court case file from public inspection - anyone who knows where to look will be able to find the court case file (probation reports are in confidential files and are not subject to public inspection 90 days after sentencing);
6. Prevent the conviction from being used as a "prior" or "strike prior" to increase a punishment on a subsequent conviction;
7. Prevent the conviction from being used for impeachment purposes on a subsequent offense;
8. Prevent the conviction from being considered and used to refuse or revoke government licenses and permits such as real estate sales licenses, teaching credentials, bus drivers licenses, security guard certificates, etc.; however, the expungement may reduce the weight given the conviction by the licensing agency.
9. Prevent the conviction from being used by INS for removal and exclusion purposes.
Recently the Law Offices of Justin E. Sterling launched the Clean Slate Project. The program helps individuals in every aspect of post-conviction relief. Visit www.sterlingdefense.com for more information. Also, be sure to "Like" our facebook page at www.facebook.com/cleanslateproject.
An adult who was granted probation, completed all the terms of probation, and is no longer on probation, is eligible for relief under this statute. He or she must not be on probation, or serving a sentence, for any other offense. (Penal Code § 1203.4).
If you were denied probation you can still obtain an expungement. You still cannot be on probation or serving a sentence for any other case. Applicants must wait one year after their conviction before applying for an expungement (Penal Code§1203.4a).
If your criminal case was reduced to an infraction you are eligible for an expungement under Penal Code section 1203.4a.
What are the effects of expungement under PC1203.4/1203.4a?
It Will:
1. Result in a new entry in the court record showing the dismissal of your case;
2. Allow you to answer on many, but not all, job applications that you have not been convicted. If, however, you are applying for a government job or a job which requires a government-issued license, certificate, or permit, or a job which involves a security clearance, the conviction will be discovered; in such cases, you should disclose the initial conviction and its later expungement;
3. Prevent use of the conviction to impeach you if you testify as a witness, unless you are being tried for a subsequent offense.
4. If the conviction was for a felony, expungement is the first step in obtaining a pardon.
It Will Not:
1. Remove the conviction from your "Rap Sheet" - California and FBI criminal history records will still show the conviction and the later dismissal "per PC 1203.4";
2. Reinstate the right to possess firearms, if it was taken away (reduction to a misdemeanor may accomplish this if the offense is not one of violence);
3. Remove the requirement to register as a sex offender per PC290. If the expungement is granted, registrants must then complete and file paperwork requesting a Certificate of Rehabilitation, when eligible. A Certificate of Rehabilitation will relieve specified sex offenders from further registration. This is true for both felony and misdemeanor convictions.
4. Allow you to omit the conviction from applications for government issued licenses;
5. Seal or otherwise remove the court case file from public inspection - anyone who knows where to look will be able to find the court case file (probation reports are in confidential files and are not subject to public inspection 90 days after sentencing);
6. Prevent the conviction from being used as a "prior" or "strike prior" to increase a punishment on a subsequent conviction;
7. Prevent the conviction from being used for impeachment purposes on a subsequent offense;
8. Prevent the conviction from being considered and used to refuse or revoke government licenses and permits such as real estate sales licenses, teaching credentials, bus drivers licenses, security guard certificates, etc.; however, the expungement may reduce the weight given the conviction by the licensing agency.
9. Prevent the conviction from being used by INS for removal and exclusion purposes.
Recently the Law Offices of Justin E. Sterling launched the Clean Slate Project. The program helps individuals in every aspect of post-conviction relief. Visit www.sterlingdefense.com for more information. Also, be sure to "Like" our facebook page at www.facebook.com/cleanslateproject.
Tuesday, July 24, 2012
First Annual High School Internship Program
The Los Angeles County Public Defender’s Office is launching their first annual High School Internship program which will run for two weeks, starting July 23, 2012 from 9 am to 3 pm. All students will be assigned to the Clara Shortridge Foltz Criminal Justice Center. They are partnering with the following three high schools and their respective law magnet programs: Dorsey High in the Crenshaw District; Wilson High in El Sereno; and Roosevelt High in Boyle Heights.
The goal is to expose the students to the work that the Public Defender team undertakes in vigorously representing indigent clients, which will include interactive presentations about the role of our supporting team of investigators, paralegals and social workers. The attorneys will also share their own personal stories about the journey that led to becoming deputy public defenders. The students will learn first-hand how the Public Defender promotes justice.
The program will feature a holistic approach to criminal justice, discussing the role of untreated mental illness, substance abuse and early childhood trauma and the connection to the criminal justice system.
The participating students have been in their respective law magnet programs since 9th grade and next year will be applying for college. Some will be the first in their families to attend college. The experience will aim to instill in the students that they too can pursue their dreams of becoming lawyers.
Visit www.sterlingdefense.com for more information. Also, be sure to "Like" our facebook page at http://www.facebook.com/pages/Law-Offices-of-Justin-E-Sterling/302279779793912
The goal is to expose the students to the work that the Public Defender team undertakes in vigorously representing indigent clients, which will include interactive presentations about the role of our supporting team of investigators, paralegals and social workers. The attorneys will also share their own personal stories about the journey that led to becoming deputy public defenders. The students will learn first-hand how the Public Defender promotes justice.
The program will feature a holistic approach to criminal justice, discussing the role of untreated mental illness, substance abuse and early childhood trauma and the connection to the criminal justice system.
The participating students have been in their respective law magnet programs since 9th grade and next year will be applying for college. Some will be the first in their families to attend college. The experience will aim to instill in the students that they too can pursue their dreams of becoming lawyers.
Visit www.sterlingdefense.com for more information. Also, be sure to "Like" our facebook page at http://www.facebook.com/pages/Law-Offices-of-Justin-E-Sterling/302279779793912
State Courts Look To Revise Their Approach To Eyewitness ID
Almost a year after the New Jersey Supreme Court made a sweeping ruling aimed at resolving the “troubling lack of reliability in eyewitness identifications,” it issued instructions on Thursday for judges to give jurors to help them better evaluate such evidence in criminal trials.
A judge now must tell jurors before deliberations begin that, for example, stress levels, distance or poor lighting can undercut an eyewitness’s ability to make an accurate identification.
Factors like the time that has elapsed between the commission of a crime and a witness’s identification of a suspect or the behavior of a police officer during a lineup can also influence a witness, the new instructions warn.
And in cases involving cross-racial identifications, judges were directed to tell jurors that “research has shown that people may have greater difficulty in accurately identifying members of a different race.”
“You should consider whether the fact that the witness and the defendant are not of the same race may have influenced the accuracy of the witness’s identification,” the instructions say.
The new instructions caution jurors that eyewitness testimony must be scrutinized carefully.
“Human memory is not foolproof,” the instructions say. “Research has revealed that human memory is not like a video recording that a witness need only replay to remember what happened. Memory is far more complex.”
The new instructions, which take effect on Sept. 4, address the problems the State Supreme Court identified last August in a unanimous ruling that concluded that the traditional test for reliability of eyewitness testimony, which the United States Supreme Court set out in 1977, was outdated and should be revised.
Although it applies only in New Jersey, the ruling was widely heralded for containing the most exhaustive review of decades of scientific research on eyewitness identification.
The new instructions are expected to be influential as other state courts look to revise their approach to eyewitness identification, several legal experts said.
“These instructions are far more detailed and careful than anything that exists anywhere in the country,” said Brandon L. Garrett, a law professor at the University of Virginia and the author of “Convicting the Innocent,” a book that includes a study of eyewitness misidentifications, which was cited by the New Jersey court in its decision.
“These instructions are far from perfect,” he added, “but they are a remarkable road map for how you explain eyewitness memory to jurors.”
Barry C. Scheck, co-director of the Innocence Project at the Benjamin N. Cardozo School of Law, which had filed a friend-of-the-court brief in the New Jersey case, called the changes “critically important” and predicted the new instructions would not only affect how juries are instructed, but would also influence trials themselves and the evidence-gathering that precedes them, since both sides will know that such instructions will be given.
“It changes the way evidence is presented by prosecutors and the way lawyers defend,” he said, adding, “The whole system will improve.”
Stuart J. Rabner, the court’s chief justice, who wrote last year’s decision, said by phone that the ultimate issue of whether to trust eyewitness testimony was for a jury to decide.
“We expect juries are going to hear this evidence, so we want to give them the tools with which to evaluate the eyewitness testimony,” he said.
The State Supreme Court also issued a rule that requires law enforcement officers to record details of how an identification was made. Officers must identify anyone, not just law enforcement personnel, with whom a witness has spoken about the identification — before, during or after it occurred — and include a detailed summary of what was said.
“If the record that is prepared is lacking in important details as to what occurred,” the rule says, a judge may declare the identification inadmissible or allow the jury to hear only portions of it.
Jennifer E. Laurin, an assistant professor of law at the University of Texas, who has written about the politics of criminal justice, said the new instructions are important because jurors will now be “more fully educated about our most contemporary understanding about what makes eyewitness identification more or less reliable.”
A judge now must tell jurors before deliberations begin that, for example, stress levels, distance or poor lighting can undercut an eyewitness’s ability to make an accurate identification.
Factors like the time that has elapsed between the commission of a crime and a witness’s identification of a suspect or the behavior of a police officer during a lineup can also influence a witness, the new instructions warn.
And in cases involving cross-racial identifications, judges were directed to tell jurors that “research has shown that people may have greater difficulty in accurately identifying members of a different race.”
“You should consider whether the fact that the witness and the defendant are not of the same race may have influenced the accuracy of the witness’s identification,” the instructions say.
The new instructions caution jurors that eyewitness testimony must be scrutinized carefully.
“Human memory is not foolproof,” the instructions say. “Research has revealed that human memory is not like a video recording that a witness need only replay to remember what happened. Memory is far more complex.”
The new instructions, which take effect on Sept. 4, address the problems the State Supreme Court identified last August in a unanimous ruling that concluded that the traditional test for reliability of eyewitness testimony, which the United States Supreme Court set out in 1977, was outdated and should be revised.
Although it applies only in New Jersey, the ruling was widely heralded for containing the most exhaustive review of decades of scientific research on eyewitness identification.
The new instructions are expected to be influential as other state courts look to revise their approach to eyewitness identification, several legal experts said.
“These instructions are far more detailed and careful than anything that exists anywhere in the country,” said Brandon L. Garrett, a law professor at the University of Virginia and the author of “Convicting the Innocent,” a book that includes a study of eyewitness misidentifications, which was cited by the New Jersey court in its decision.
“These instructions are far from perfect,” he added, “but they are a remarkable road map for how you explain eyewitness memory to jurors.”
Barry C. Scheck, co-director of the Innocence Project at the Benjamin N. Cardozo School of Law, which had filed a friend-of-the-court brief in the New Jersey case, called the changes “critically important” and predicted the new instructions would not only affect how juries are instructed, but would also influence trials themselves and the evidence-gathering that precedes them, since both sides will know that such instructions will be given.
“It changes the way evidence is presented by prosecutors and the way lawyers defend,” he said, adding, “The whole system will improve.”
Stuart J. Rabner, the court’s chief justice, who wrote last year’s decision, said by phone that the ultimate issue of whether to trust eyewitness testimony was for a jury to decide.
“We expect juries are going to hear this evidence, so we want to give them the tools with which to evaluate the eyewitness testimony,” he said.
The State Supreme Court also issued a rule that requires law enforcement officers to record details of how an identification was made. Officers must identify anyone, not just law enforcement personnel, with whom a witness has spoken about the identification — before, during or after it occurred — and include a detailed summary of what was said.
“If the record that is prepared is lacking in important details as to what occurred,” the rule says, a judge may declare the identification inadmissible or allow the jury to hear only portions of it.
Jennifer E. Laurin, an assistant professor of law at the University of Texas, who has written about the politics of criminal justice, said the new instructions are important because jurors will now be “more fully educated about our most contemporary understanding about what makes eyewitness identification more or less reliable.”
Bars To Deferred Action Status
On June 15, 2012, the Obama Administration announced that it would not deport certain undocumented persons who entered the U.S. as children. The Department of Homeland Security (DHS) has offered some initial guidance on the type of criminal offenses that will make a person ineligible to be granted deferred action.
Deferred action means that, even though the individual is undocumented and subject to deportation, the government agrees to defer any actions to remove them.
So, in essence, even though deferred action does not provide a pathway to getting lawful permanent resident status (a greencard) or citizenship, it will allow young people to remain in the U.S. and apply for a work authorization document from the government that entitles them to legally work in the U.S.
This advisory for criminal defense counsel outlines defense strategies to preserve a client’s possible eligibility for deferred action.
Download at: http://www.ilrc.org/files/documents/practice_advisory_for_criminal_defenders_deferred_action.pdf
Deferred action means that, even though the individual is undocumented and subject to deportation, the government agrees to defer any actions to remove them.
So, in essence, even though deferred action does not provide a pathway to getting lawful permanent resident status (a greencard) or citizenship, it will allow young people to remain in the U.S. and apply for a work authorization document from the government that entitles them to legally work in the U.S.
This advisory for criminal defense counsel outlines defense strategies to preserve a client’s possible eligibility for deferred action.
Download at: http://www.ilrc.org/files/documents/practice_advisory_for_criminal_defenders_deferred_action.pdf
Santa Clara County DA Seeks Shorter Three Strikes Law Sentences
District Attorney Jeff Rosen has concluded that more than 60 "three-strikers" from Santa Clara County who are serving life sentences for relatively minor crimes probably didn't deserve such harsh punishment -- and he will seek shorter terms or outright release for at least some of them even if an initiative to scale back California's tough Three Strikes Law loses in November.
Rosen's staunch support of the initiative -- including a provision that would pave the way for judges to easily reduce life sentences for certain three-strikers -- distinguishes him from most of the state's 58 district attorneys. Only two others -- fellow Democrat George Gascon, of San Francisco, and Republican Steve Cooley, of Los Angeles County -- have endorsed Proposition 36.
But Rosen is the only one promising to actively pursue resentencing for some of the lifers who would be eligible if the initiative passes, no matter how the election turns out. Some of those lifers could walk out of prison as soon as the process is complete, if Rosen gets his way.
"We know there are people who were given 25-to-life who would not get that today," Rosen said. "One element of justice is consistency. I want to apply the standard we are using right now. This gives us a way of establishing consistency that is fair while still protecting public safety."
Under the existing Three Strikes Law, the first two strikes have to be violent or serious crimes as defined in the penal code. But only California, out of 24 states with similar laws, allows the third strike to be any felony.
As a result, offenders who have committed such relatively minor third strikes as stealing a pair of socks, attempting to break into a soup kitchen for food, or forging a check for $146 at Nordstrom have been sentenced to life in prison.
In contrast, the new initiative, crafted by a group of Stanford University law professors and the New York-based NAACP Legal Defense Fund, would allow only certain hard-core criminals, including murderers, rapists and child molesters, to be put away for life for any third felony offense, while restricting the third strike to a serious or violent felony for everyone else. A poll conducted this month by the California Business Roundtable and Pepperdine University found 72 percent of likely voters support it.
The initiative also would set up a new procedure to more efficiently bring certain three-strike cases before judges for reconsideration. Right now, such cases can be heard, but obtaining a hearing is far more time-consuming and less certain.
Even though judges retain the ultimate say over whether to reduce a life sentence, a positive recommendation by a top prosecutor like Rosen could play a crucial role in helping three-strikers obtain leniency -- partly because responsibility for the decision would then be shared by the court and the district attorney's office. "It's outstanding that this is his position," said Acting Public Defender Molly O'Neal. "It's absolutely morally and ethically the right thing to do. I'm really impressed."
Rosen's staunch support of the initiative -- including a provision that would pave the way for judges to easily reduce life sentences for certain three-strikers -- distinguishes him from most of the state's 58 district attorneys. Only two others -- fellow Democrat George Gascon, of San Francisco, and Republican Steve Cooley, of Los Angeles County -- have endorsed Proposition 36.
But Rosen is the only one promising to actively pursue resentencing for some of the lifers who would be eligible if the initiative passes, no matter how the election turns out. Some of those lifers could walk out of prison as soon as the process is complete, if Rosen gets his way.
"We know there are people who were given 25-to-life who would not get that today," Rosen said. "One element of justice is consistency. I want to apply the standard we are using right now. This gives us a way of establishing consistency that is fair while still protecting public safety."
Under the existing Three Strikes Law, the first two strikes have to be violent or serious crimes as defined in the penal code. But only California, out of 24 states with similar laws, allows the third strike to be any felony.
As a result, offenders who have committed such relatively minor third strikes as stealing a pair of socks, attempting to break into a soup kitchen for food, or forging a check for $146 at Nordstrom have been sentenced to life in prison.
In contrast, the new initiative, crafted by a group of Stanford University law professors and the New York-based NAACP Legal Defense Fund, would allow only certain hard-core criminals, including murderers, rapists and child molesters, to be put away for life for any third felony offense, while restricting the third strike to a serious or violent felony for everyone else. A poll conducted this month by the California Business Roundtable and Pepperdine University found 72 percent of likely voters support it.
The initiative also would set up a new procedure to more efficiently bring certain three-strike cases before judges for reconsideration. Right now, such cases can be heard, but obtaining a hearing is far more time-consuming and less certain.
Even though judges retain the ultimate say over whether to reduce a life sentence, a positive recommendation by a top prosecutor like Rosen could play a crucial role in helping three-strikers obtain leniency -- partly because responsibility for the decision would then be shared by the court and the district attorney's office. "It's outstanding that this is his position," said Acting Public Defender Molly O'Neal. "It's absolutely morally and ethically the right thing to do. I'm really impressed."
Thursday, May 17, 2012
Defending Gang Cases Seminar
Saturday June 16, 2012 – at The Berkeley Marina DoubleTree Hotel – 200 Marina Blvd, Berkeley, California 94710
Program Coordinators:
Kathleen Cannon, Attorney at Law, San Diego, California
R. Addison Steele II, Deputy Public Defender, Riverside County
R. Addison Steele II, Deputy Public Defender, Riverside County
This Defending Gang Cases Seminar will provide you with 6.0 hours of continuing legal education participatory credits by addressing some very important aspects in the defense of gang cases. We will cover important topics that include trial preparation, humanizing your client, selecting and working with a gang expert, closing argument, discovery issues, and an exhaustive review of the laws and case law pertaining to gangs. Note: We have also reserved a block of lodging rooms at the Berkeley Marina DoubleTree Hotel at a special rate. You can obtain lodging reservations via the Internet, see elsewhere on this notice for the Internet link. If you call to make reservations, be sure to indicate you are attending the CPDA group event to obtain the discounted lodging rate. This program is MCLE accredited – please see box below for details.
PROGRAM SCHEDULE
8:00 a.m. Registration & Check-In
9:00 a.m. Preparing a Gang Case for Trial – Manohar Raju, Deputy Public Defender, San Francisco County
10:00 a.m. Legal Developments in Gang Cases – Charles Denton, Assistant Public Defender, Alameda County
11:00 a.m. Hiring and Working with a Gang Expert – Gregorio Estevane, J.D., Astis Consulting, Los Angeles, California
12:00 p.m. Lunch (included with registration fee)
12:00 p.m. Lunch (included with registration fee)
1:00 p.m. Effective Closing Arguments in a Gang Case – Traci Owens, Deputy Alternate Public Defender, Santa Clara County
2:00 p.m. Discovery Issues and Challenges in Gang Cases – Jason Cox, Attorney at Law, Albany, California
3:00 p.m. Winning by Humanizing the Client in a Gang Case – Souley Diallo, Attorney at Law, Riverside, California
4:00 p.m. Conclusion
This activity is deemed approved for Minimum Continuing Legal Education by the State Bar of California in the amount of 6.0 hours. This CPDA activity conforms to the standards for approved education activities prescribed by the rules & regulations of the State Bar of California governing minimum continuing legal education. This activity is approved for California Legal Specialization Credit as follows: 4.0 hrs in Criminal Law Trial Advocacy and 2.0 hours in Substantive Criminal Law and Procedure. CPDA is an Approved Provider of Criminal Law under section 7.0 of the Rules Governing the State Bar of California Program for Certifying Legal Specialists and the Standards.
Wednesday, May 9, 2012
Tuesday, April 24, 2012
New Stuff
1. In re Tom (2012) Cal.App.4th , reported on March 21, 2012, in 2012 Los Angeles Daily Journal 3595, the First Appellate District, Division3 held that where the defendant was held for approximately an hour after being involved in fatal vehicle collision, was denied permission to leave the scene, and then placed in the rear of a patrol car for another 20 minutes before being transported from the accident scene to the police station for further investigation, those restraints were “tantamount to a formal arrest,” triggering his right to Miranda warnings. (See Berkemer v. McCarty (1984 468 U.S. 420, 423-426, 440-442.) Where the defendant was not given the required Miranda warnings, and prosecution elicited police testimony that, subsequent to his arrest, defendant never inquired about the welfare of the occupants of the other vehicle, the use of this evidence of defendant’s post-arrest, pre-Miranda silence as substantive evidence of defendant’s guilt violated his Fifth Amendment right against self-incrimination. (See Doyle v. Ohio (1976) 426 U.S. 610, 617-619; see also Jenkins v. Anderson (1980) 447 U.S. 231, 233-238; United States v. Velarde-Gomez (9th Cir. 269 F.3d 1023, 1028-1029.) Where emotionally charged case hinged on competing theories of accident reconstruction yielding widely different estimates of defendant’s speed at the point of impact, the prosecutor’s argument urging the jury to consider the defendant’s failure to ask about the welfare of the occupants of the other vehicle as substantive evidence of his guilt was highly prejudicial, as a result the erroneous admission of such evidence was not harmless beyond a reasonable doubt. (People v. Neal (2003) 31 Cal.4th 63, 86.) CALCRIM 592, defining gross vehicular manslaughter, does not eliminate the requirement that the prosecution prove the predicate offense of reckless driving.
2. Lafler v. Cooper (2012) U.S. , reported on March 22, 2012, in 2012 Los Angeles Daily Journal 3726, the United States Supreme Court held, in a 5-4 opinion, that where counsel’s ineffective advice led to the defendant rejecting a negotiated disposition (plea), and where the prejudice alleged is having to stand trial, the defendant must show that, but for the ineffective advice, there is a reasonable probability that: (1) the plea offer would have been presented to the court, (2) that the court would have accepted its terms, and (3) that the conviction or sentence or both under the offer’s terms would have been less severe than under the actual judgment and sentence imposed. The High court reversed the ruling of the state appeals court that a defendant who receives a fair trial cannot claim ineffective assistance of counsel based on advice to reject plea offer. The correct remedy for counsel’s ineffective assistance in the plea deal, is to order the state to reoffer the negotiated disposition so that if defendant accepts, trial court may exercise its discretion according to the applicable rules of the jurisdiction.
3. Missouri v. Frye (2012) U.S. , reported on March 22, 2012, in 2012 Los Angeles Daily Journal 3713, the United States Supreme Court, in another 5-4 opinion, with its companion case Lafler v. Cooper decided the same day, held that plea bargaining is a critical stage of a criminal proceeding, and if trial counsel taints the proceeding by failing to communicate an offer from the prosecution, the taint cannot subsequently be removed by providing the defendant a fair trial or an opportunity to enter a plea on less favorable terms. Counsel’s failure to communicate a formal, written plea offer, as a result of which the offer lapsed and the defendant lost the opportunity to accept it, constituted ineffective assistance of trial counsel. In order to show prejudice where a plea offer has lapsed or has been rejected because of counsel’s deficient performance, the defendant must demonstrate a reasonable probability both that he would have accepted the more favorable plea offer had he been afforded effective assistance of counsel and that the plea would have been entered without the prosecution’s canceling it or the trial court’s refusing to accept it, if it had the authority to exercise that discretion under state law.
4. People v. Garcia (2012) Cal.App.4th , reported on March 22, 2012, in 2012 Los Angeles Daily Journal 3700, the Fourth Appellate District, Division 3 held that the defendant’s conviction must be reversed where the trial court excused a juror and seated an alternate, but remaining jurors announced that they had reached a verdict before the 12th juror was excused. The error was that the trial court allowed the remaining 11 jurors to deliver a sealed verdict, which was subsequently unsealed and affirmed in a poll only of the 11 jurors, (see People v. Thaugott (2010) 184 Cal.App.4th 492, 500-501 [the jurors must appear in court and affirm their verdict]) and then affirmed by the 12th juror in court 11 days later. As a result of the 12th juror failing to affirm the verdict, the defendant was deprived of his state constitutional right to a unanimous verdict of a 12-member jury. (Ibid.) Once the court loses control over the jurors, it is without jurisdiction to call them together again. (People v. Bonillas (1989) 48 Cal.3d 757, 771.) The court may accept a partial verdict of all 12 jurors, who can affirm the verdicts, and the verdicts can be recorded pursuant to section 1164, and then the juror can be excused and replaced by an alternate. (See People v. Fudge (1994) 7 Cal.4th 1075- 1100-1101.)
5. People v. Maharaj (2012) Cal.App.4th , reported on March 26, 2012, in 2012 Los Angeles Daily Journal 3837, the Third Appellate District held that where the defendant was convicted of 3 counts within section 269 (aggravated sexual assault on a minor), and section 288, subdivision (b), and each of the offenses are within section 667.6, subdivision (e), and therefore requiring mandatory consecutive sentences for each of the 4 forcible sex offenses. (See § 667.6, subds. (c) and (d) requiring full term, consecutive sentences.) Section 667.6, subdivision (c) mandates that violent sex offenses listed in section 667.6, subdivision (e), when committed against the same victim on separate occasions, be subject to full-term consecutive sentences just as when such offenses are committed against multiple victims.
6. People v. Romero (2012) Cal.App.4th , reported on March 28, 2012, in 2012 Los Angeles Daily Journal 3935, the Third Appellate District held that the defendant, who alleged a violation of his Sixth Amendment right to a grand jury drawn from a representative sample of the population, failed to make a prima facie showing of systematic exclusion of Hispanics and Asian-Americans in the jury selection process. Furthermore, he failed to identify any aspect of the jury selection process that resulted in systematic exclusion of Hispanics and Asian-Americans from grand juries. The jury commissioner testified that she made efforts to reach out to organizations representing minority groups and that she reached out to those with ethnic-sounding names. Additionally, the nomination of grand jurors by superior court judges did not deprive the defendant of equal protection under Fourteenth Amendment where there was ample evidence in the record of nondiscriminatory motivations and methods of the superior court and its officers.
7. People v. Wells (2012) Cal.App.4th , reported on March 29, 2012, in 2012 Los Angeles Daily Journal 4034, the Third Appellate District held that the trial court erred in failing to sua sponte instruct the jury pursuant to section 26, which in effect exempts from criminal responsibility persons who committed the act charged “without being conscious thereof.” (See People v. Chaffey (1994) 25 Cal.App.4th 852, 855.) The defendant who was charged with DUI with injury and related offenses was entitled to a sua sponte instruction under section 26, where there was evidence supporting his theory that he could not be found guilty because the reason he crossed double yellow lines and collided with the victims’ vehicle was due to his low blood sugar, causing him to pass out, and not to being under the influence. (People v. Cole (1988) 202 Cal.App.3d 1439, 1446 [a defendant is entitled to an instruction on the defense theory where it is obvious that he is relying on that defense or if there is substantial evidence to support it.]) The trial court erred in instructing with CALCRIM 2100–the last sentence of which reads: “If the defendant was under the influence of a drug, then it is not a defense that something else also impaired his ability to drive a vehicle.” That wording might have misled jury into believing that unconsciousness is not a defense to the violation of law or failure of duty element of DUI with injury. The combined impact of instructional errors was prejudicial under either Chapman or Watson.
8. People v. Tuck (2012) Cal.App.4th , reported on March 29, 2012, in 2012 Los Angeles Daily Journal 3995, the First Appellate District, Division 3 held that the trial court does not have discretion under section 1385 to grant a dismissal in the interests of justice to relieve a defendant of the duty to register as a sex offender. The mandatory requirement that the defendant register as a sex offender because of a conviction for section 288, subdivision (a), does not violate the constitutional guarantee of equal protection. (People v. Hofsheier (2006) 37 Cal.4th 1185 [consensual oral cop].) A defendant convicted of lewd conduct on a minor under 14, are not similarly situated with persons convicted of sex offenses under other statutes that do not require the minor victim to be so young. However, the defendant can apply for a certificate of rehabilitation to relieve himself of the registration requirement.
9. People v. Hale (2012) Cal.App.4th , reported on March 30, 2012, in 2012 Los Angeles Daily Journal 4132, the First Appellate District, Division 3 held that when a defendant is charged with a violation of section 269 (aggravated sexual assault of a child under the age of 14 and more than 10 years younger than defendant), the prosecution may be commenced at any time. A conflict between section 799, which says that prosecution for a crime punishable by life imprisonment may be commenced at any time, and section 801.1, which applies a 10-year limitations period to crimes for which sex offender registration is required, is resolved under section 803.6, subdivision (a) by applying the longest applicable period. Additionally, the force used to commit forcible sodomy, a violation of former section 286, subdivision (c)(2), need not be greater than or different from the force used to engage in the act of sodomy. The prosecution was merely required to prove that the act of sodomy was accomplished by enough physical force to overcome victim’s will. (See People v. Griffin (2004) 33 Cal.4th 1015, 1026-1028; People v. Guido (2005) 125 Cal.App.4th 566, 576.)
10. People v. Superior Court (Chapman) Cal.App.4th , reported on April 2, 2012, in 2012 Los Angeles Daily Journal 4205, the Second Appellate District, Division 8 held that the trial court erred in granting the defendant’s motion to suppress evidence, based on the facts of this case, where the officer’s were permitted to reenter the premises to seize evidence observed in plain view (Coolidge v. New Hampshire (1971) 403 U.S. 443, 465 [lawful entry based on exigency or consent permits seizure of items observed in plain view]), during the first entry for a protective sweep. The officers responded to the defendant’s home in response to a call that shots had been fired inside the house. The defendant was ordered out, and he came out with his girlfriend. The defendant was handcuffed and a patdown revealed a loaded handgun. The defendant told the officers to help him, referring to his son, inside of the house. The court found that consent to enter may be express or implied. (People v. Frye (1998) 18 Cal.4th 894, 990.) An officer is permitted to reenter to seize evidence observed in plain view during a lawful entry but not initially seized because an officer was doing a duty that took priority over the seizure of evidence. (People v. McDowell (1988) 46 Cal.3d 551, 564; see also People v. Justin (1983) 140 Cal.App.3d 729, 740.) Exigent circumstances justified the warrantless entry by second wave responders a few minutes later.
11. People v. Self (2012) Cal.App.4th , reported on April 5, 2012, in 2012 Los Angeles Daily Journal 4338, the Fourth Appellate District, Division 1 held that the trial court erred in finding that an Arizona prior qualified as a prior DUI as all elements of the Arizona prior did not contain the same elements (see People v. Crane (2006) 142 Cal.App.4th 425), was not the categorically equivalent to a California DUI conviction where the level of impairment required for conviction under the Arizona law was less than that required in California. If the prior conviction was for an offense that can be committed in multiple ways, and the record does not disclose how the offense was committed, a court must presume the conviction was for the least serious form of the offense. (See People v. Delgado (2008) 43 Cal.4th 1059, 1066.) The trial court erred in relying on handwritten notations on Arizona judgment form to find that defendant’s conduct in the Arizona case would have supported conviction in California as they are not part of the record of conviction (People v. Crane, supra, 142 Cal.App.4th at p. 434), and thus did not constitute a prior conviction for enhancement purposes.
12. People v. Finney (2012) Cal.App.4th , reported on April 5, 2012, in 2012 Los Angeles Daily Journal 4331, the Second Appellate District, Division 6 held that the trial court did not err in distinguishing People v. Benson (1998) 18 Cal.4th 24, 35, fn 8, and People v. Burgos (2004) 117 Cal.App.4th 1209, and did not strike a strike from the defendant’s prior convictions and found him to be a “three striker” and sentenced him to a life term. The defendant’s prior involved an attack on the victim with a skateboard, fled in the erroneous belief victim was dead, and then returned 30 minutes later, where he saw the victim was alive and kicked him in the head three times, and as a result was convicted for mayhem and assault constituted two separate strikes. Additionally, the trial court did not abuse its discretion (see People v. Superior Court (Alvarez) 14 Cal.4th 968, 977-978), in denying his Romero motion to strike a strike, where defendant had a history of violent crime and failed attempts at parole and probation, and therefore fell inside and not outside of the Three Strikes Law. (People v. Carmony (2004) 33 Cal.4th 367, 377-378; see also People v. Williams (1998) 17 Cal.4th 148, 161.)
13. People v. Wright (2012) Cal.App.4th , reported on April 6, 2012, in 2012 Los Angeles Daily Journal 4379, the Second Appellate District, Division 3 held that the trial court did not err in failing to instruct sua sponte on voluntary intoxication causing unconsciousness (CALCRIM 626), nor involuntary intoxication causing unconsciousness (CALCRIM 3426), where there was no substantial evidence to support defendant’s claim that he was poisoned. (See People v. Halvorsen (2007) 42 Cal.4th 379, 417.) There was substantial evidence that the defendant was conscious at the time of the crime. Additionally, the defendant could not claim as a matter of law that he was involuntarily intoxicated by the introduction of an illicit substance into the drug he was ingesting illegally. (People v. Gallego (1990) 52 Cal.3d 115, 183-184.) Where the trial court found a prima facie showing had been made that defense counsel discriminated against Caucasians in exercising peremptory challenges, and defense counsel responded by expressing a bias against women, the trial court properly sustained the prosecution’s objection and accepted the prosecution’s proposed remedy of reseating the juror challenged by the defense. The trial court did not err in having peremptory challenges and Wheeler motion made in open court rather than at sidebar. (People v. Willis (2002) 27 Cal.4th 811, 813 [the court "may" challenge at sidebar, but it is not mandatory].) The matter is within the trial court’s discretion, and any prejudice was cured by the instruction that peremptory challenges were a matter of right and should not be treated as an insult to challenged venire members. (Id., at 821-822.)
14. People v. Wade (2012) Cal.App.4th , reported on April 11, 2012, in 2012 Los Angeles Daily Journal 4510, the First Appellate District, Division 5 held that section 243, subdivision (f)(5)’s reference to the victim’s need for medical treatment is irrelevant to whether the victim sustained “serious bodily injury” within the meaning of section 243, subdivision (d), as that phrase is defined solely by section 243, subdivision (f)(4). (People v. Longoria (1995) 34 Cal.App.4th 12, 16; see also People v. Burroughs (1984) Cal.3d 824, 831 [serious bodily injury as used in § 243 is essentially equivalent to great bodily injury as used in § 12022.7].) Additionally, the recent amendment to the definition of grand theft, which increases the monetary threshold from $400 to $950, must be applied retroactively to cases not yet final when the amendment took effect. (See People v. Vinson (2011) 193 Cal.App.4th 1190, 1194-1199; accord In re Estrada (1965) 63 Cal.2d 740, 748.) Where the jury was instructed that it could find the defendant guilty of grand theft on either of two theories, that he stole more than $400 or that he took victim’s property from her person, and the evidence was undisputed that the amount of the theft was less than $950, but it was disputed whether the property was taken from victim’s person, retroactivity of the legislative amendment required that the instruction be treated as erroneous. Given the fact that there was no way for appellate court to determine which theory upon which the defendant was convicted, the error required the reduction of conviction to one of petty theft and remand for resentencing. (See People v. Guiton (1993) 4 Cal.4th 1116, 1122; see also People v. Chun (2009) 45 Cal.4th 1172, 1203.)
15. People v. Kurtenbach (2012) Cal.App.4th , reported on March 13, 2012, in 2012 Los Angeles Daily Journal 4635, the Fourth Appellate District, Division 1 held that where jury found that defendant intended that an arson be committed, and that he acted willfully and maliciously in connection with the arson, any error in failing to give aiding and abetting instructions was necessarily harmless beyond a reasonable doubt. (Cf. People v. Garcia (2001) 25 Cal.4th 744, 761 [an error in failing to instruct on an element, is harmless when the reviewing court can determine beyond a reasonable doubt the jury finding may be based on other instructions].) Injuries to an accomplice are not excluded from the offense of arson causing great bodily injury as it is not specifically excluded by the statute. Pouring gasoline in a structure to fuel an arson is the use of a device designed to accelerate the fire for the purposes of the sentencing enhancement in section 451.1, subdivision (a)(5). (See People v. Andrade (2000) 85 Cal.App.4th 759 [either the use of a Molotov cocktail or breaking a gasoline-filled bottle by throwing it on the floor and then light a match].) Proof that defendant committed arson of his own house and thereby damaged his neighbor’s was sufficient to establish the “malice” element of vandalism of his neighbor’s house. (See In re V.V. (2011) 51 Cal.4th 1020, 1028 ["malice in law" may be presumed or implied from the intentional doing of the act without justification or excuse or mitigating circumstances].) The Fifth Amendment does not protect the defendant against a prosecution for concealing or knowingly failing to disclose an event affecting an insurance benefit, in violation of section 550, subdivision (b)(3), based on the defendant’s concealing, during his insurer’s investigation of a fire at defendant’s house, the fact that defendant planned the fire. The trial court did not err in failing to stay either the arson count or concealing an insurance claim (§ 550, subd. (b)(3), since the two crimes constituted a course of conduct divisible in time, and therefore, the defendant can be punished for both. (People v. Beamon (1973) 8 Cal.3d 625, 639, fn.11.) However, the trial court did err in failing to stay the punishment for vandalism when considering the arson count, since this is an indivisible course of conduct incident to one objective (People v. Perez (1979) 23 Cal.3d 545, 551.) The preclusion of section 654 for multiple victims is not applicable here since the crimes are not both against a person (see People v. Miller (1977) 18 Cal.3d 873, 886), as vandalism is not a crime against a person.
16. People v. Allexy (2012) Cal.App.4th , reported on April 17, 2012, at 2012 Los Angeles Daily Journal 4747, the Third District held that the trial judge erred by ordering the defendant, who pled guilty to child endangerment, which is an offense for which sex offender registration is discretionary and not mandatory, to register as a sex offender following revocation of probation where no such order was made at sentencing, but the decision was bifurcated if and until the defendant violated probation. The trial court may, however, order registration at time of sentencing but suspend the requirement, thus reserving the right to impose it if probation is subsequently revoked. (See § 290.006.) The trial court’s error in ordering registration following probation revocation did not require reversal, where the judge announced at sentencing that he would order registration if probation were later revoked, and the claim of error was forfeited or the error invited because defense counsel acquiesced to the court’s procedure.
17. People v. Borg (2012) Cal.App.4th , reported on April 19, 2012, in 2012 Los Angeles Daily Journal 4927, the First Appellate District, Division 1 held that the 2011 amendments to section 4019, that grants custody credits to enumerated classes of prisoners previously denied them, but only with respect to conduct occurring after the operative date of the amendment, does not deprive those classes of prisoners of equal protection. The Court of Appeal found that treating such prisoners differently than other classes of prisoners, who were permitted to earn additional credits for past conduct, had a rational basis in that legislature may have decided that the nature and scope of fiscal emergency required granting additional credits to the specified classes of prisoners previously denied them only after the effective date of the amendment. This case is contrary to the holding in at least Payton v. Superior Court (2012) 202 Cal.App.4th 1187.
18. People v. Hernandez (2012) Cal.4th , reported on April 20, 2012, in 2012 Los Angeles Daily Journal 4970, the California Supreme Court held that the trial court’s gag order, which precluded defense counsel from discussing with defendant a sealed declaration of a testifying prosecution witness and a transcript of that witness’s plea-agreement proceedings, did not so completely deprive defendant of his right to counsel as to constitute structural error reversible without a showing of prejudice, but gag order did implicate the defendant’s right to counsel in a manner requiring a showing of prejudice before reversal would be required. Trial court’s error in barring defendant’s attorney without justification from discussing with him the existence or contents of a sealed transcript of a witness’s plea agreement proceedings and a sealed declaration executed by the witness as part of those proceedings is subject to harmless-error review. Unwarranted judicial interference with effective communication between defendant and attorney is per se reversible error only in extreme circumstances, such as where defendant is denied all communication with counsel for an inordinate period of time or during a critical stage of proceedings. (See Geders v. United States (1984) 466 U.S. 80; see also Perry v. Leeke (1989) 488 U.S. 272 [discussions during a recess]; Morris v. Slappy (1983) 461 U.S. 1, 11 [not all restrictions on communication are invalid].)
19. People v. Bejasa (2012) Cal.App.4th , reported on April 20, 2012, in 2012 Los Angeles Daily Journal 4981, the Fourth Appellate District, Division 2 held that the trial court erred in failing to suppress statements made by the defendant to the police after he was handcuffed and placed in a police car prior to being advised of his Miranda rights. Of the statements that appellant sought to be suppressed was his estimation of time, made during a “Romberg”, or modified attention test (FST), was testimonial evidence and should have been suppressed. The court found that it was error to admit all of the questioned evidence, but that the error was harmless.
Monday, January 30, 2012
Assembly Passes Bill Sparked By Caylee Anthony Murder Case
The Assembly approved new parental obligations today in response to a much-publicized Florida case in which Casey Anthony waited a month to report her 2-year-old daughter missing but ultimately was acquitted of her murder.
Assembly Bill 1432 would make parents or guardians guilty of a misdemeanor if they knowingly fail to report, within 24 hours, the disappearance of a child younger than 14. Maximum penalties would vary, however.
Offenders could be jailed for a year and fined $2,000 for failing to report the death of a child from crime, or one who is missing under circumstances that would suggest danger.
Violations stemming from disappearances in which no danger of physical harm exists would be punishable by maximum jail sentences of six months and fines of up to $1,000.
The bill declares itself "Caylee's Law."
AB 1432, by Assemblywoman Holly Mitchell, D-Los Angeles, passed the Assembly with bipartisan support, 66-3. It now goes to the Senate. If signed into law with two-thirds support from the Legislature, the measure would take effect immediately.
Judge Strikes Parole-Revocation Provisions In California Law
A Sacramento federal judge has struck down as unconstitutional the part of California's so-called Victims' Bill of Rights that governs parole revocation.
The law, enacted by voter approval of a 2008 ballot initiative known as Proposition 9, was a sweeping amendment to the state constitution, conferring a long list of entitlements on crime victims. The sections dealing with parole revocation were made part of the state's Penal Code.
U.S. District Judge Lawrence K. Karlton ruled last Tuesday that those sections fall short of providing the minimum due process guaranteed by the Constitution and two U.S. Supreme Court decisions, Morrissey v. Brewer – a landmark in 1972 – and Gagnon v. Scarpelli one year later.
The requirements missing from California's law include "a written summary of the proceedings and of the revocation decision, the opportunity to present documentary evidence and witnesses, and disclosure to the parolee of the evidence against him," Karlton wrote in a 26-page order.
The judge held that an injunction he issued in 2004 as part of a now-18-year-old, still-ongoing class-action lawsuit on behalf of parolees is "necessary to remedy constitutional violations created" four years later by the voters.
The judge found to be unconstitutional the provision of Proposition 9 that parolees have a right to an attorney at the state's expense only if the parolee is indigent and appears incapable of speaking for himself. Karlton said the California law overly restricted a parole agency's discretion and allowed a parolee to go uninformed of his right to request counsel.
Most importantly, Karlton added, a right to a lawyer is presumed if the parolee makes a credible claim that he did not violate parole, or a credible claim of mitigating circumstances. Thus, Karlton concluded, his injunction "is a properly tailored remedy, aimed at curing violations of due process rights."
Karlton next targeted the state law provisions entrusting to the Board of Parole Hearings "the safety of victims and the public," and prohibiting the board from weighing the cost or burden to the taxpayers that may result from continually sending people back to prison.
The judge said his injunction directs the board to use remedial sanctions rather than parole revocation when appropriate, thus reducing the number of returnees and the overall inmate population – the latter being a Supreme Court-mandated goal.
The law further violates the Constitution by denying a parolee a "neutral and detached" hearing body to make parole revocation decisions, Karlton stated.
The state places "a thumb on the scales of justice and tips the balance towards incarceration. By entrusting the board only with the safety of victims and the public, (the law) strips the board of its duty to balance those factors with a parolee's liberty interest," the judge wrote.
Yet another part of the law allows the unconditional use of hearsay evidence at parole revocation hearings, denying a parolee the "right to confront and cross examine adverse witnesses … unless the government shows good cause," Karlton said.
Only two paragraphs of the parole revocation statute were left standing. Karlton decided they are not viable by themselves, so "no portion of the statute can be preserved."
One of the proposition's requirements survived and will be included in Karlton's injunction: that a revocation hearing be convened no later than 45 days after the placement of the parole hold, as opposed to the 35 days required by the injunction.
Friday, January 27, 2012
"Lady Lawyer"
It takes a streak of steely determination to challenge the status quo — and no one knows that better than Connie Rice, one of America's most renowned civil rights attorneys. Her new book, "Power Concedes Nothing: One Woman's Quest for Social Justice in America, from the Courtoom to the Kill Zones," reveals the inspiring life of an indomitable woman.
Rice’s race for excellence began at home: Her father broke racial barriers as a U.S. Air Force major, and her mother imbued her with a passion for learning and culture. Her worldview was shaped by moving to 17 different homes during her childhood, including periods in England and Japan. After college at Harvard and law school at NYU, where she spent summers working on high-profile death penalty litigation for the NAACP Legal Defense and Education Fund, Rice began the work that would win her national acclaim for her stirring defense of civil rights.
Over the course of her career, the "Lady Lawyer" (as Rice would come to be known to the Los Angeles gang members with whom she struck a pioneering partnership) would take on racism and sexism in the LAPD, a transit system that tried to ignore its poorest users, and a public school system that Rice and her cohorts deemed inadequate. But she is perhaps best known for the report she co-wrote that has revolutionized the city’s law enforcement policies and outreach to gangs.
Her constant involvement with the LAPD ultimately yielded the consummate reward: her very own parking space at headquarters. LAPD Chief Charlie Beck calls Rice "the conscience of the city."
Rice will be interviewed about her book and her stories of life in the trenches of civil rights law by Joel Fox, who has been an opinion-maker and a unique voice in California politics for decades.
"Power Concedes Nothing" will be for sale at the event, and Rice will be available to sign copies.
Connie Rice is co-founder and co-director of the Advancement Project. She has received more than 50 major awards for her leadership and her non-traditional approaches to litigating major cases involving police misconduct, employment discrimination and fair public resource allocation.
The event is being sponsored the Milken Institute and takes place January 31, 2012 ~ visit www.milkeninstitute.org/ for more information.
Rice’s race for excellence began at home: Her father broke racial barriers as a U.S. Air Force major, and her mother imbued her with a passion for learning and culture. Her worldview was shaped by moving to 17 different homes during her childhood, including periods in England and Japan. After college at Harvard and law school at NYU, where she spent summers working on high-profile death penalty litigation for the NAACP Legal Defense and Education Fund, Rice began the work that would win her national acclaim for her stirring defense of civil rights.
Over the course of her career, the "Lady Lawyer" (as Rice would come to be known to the Los Angeles gang members with whom she struck a pioneering partnership) would take on racism and sexism in the LAPD, a transit system that tried to ignore its poorest users, and a public school system that Rice and her cohorts deemed inadequate. But she is perhaps best known for the report she co-wrote that has revolutionized the city’s law enforcement policies and outreach to gangs.
Her constant involvement with the LAPD ultimately yielded the consummate reward: her very own parking space at headquarters. LAPD Chief Charlie Beck calls Rice "the conscience of the city."
Rice will be interviewed about her book and her stories of life in the trenches of civil rights law by Joel Fox, who has been an opinion-maker and a unique voice in California politics for decades.
"Power Concedes Nothing" will be for sale at the event, and Rice will be available to sign copies.
Connie Rice is co-founder and co-director of the Advancement Project. She has received more than 50 major awards for her leadership and her non-traditional approaches to litigating major cases involving police misconduct, employment discrimination and fair public resource allocation.
The event is being sponsored the Milken Institute and takes place January 31, 2012 ~ visit www.milkeninstitute.org/ for more information.
Tuesday, January 24, 2012
Friday, January 13, 2012
Ginsburg Opinion Rejects Due Process Inquiries On Eyewitness IDs ~ Sotomayor Dissents
The Supreme Court declined Wednesday to extend constitutional safeguards against the use of certain eyewitness testimony at trial, despite concerns that eyewitness identification plays a key role in innocent people going to prison.
In a case dealing with a narrow slice of the issue of identifying a suspect, the court voted 8-1 to uphold the theft conviction of Barion Perry in New Hampshire state court. Perry argued that courts should be able to exclude eyewitness testimony when identifications are made under suggestive circumstances, even when there is no evidence of manipulation by the police.
Judges already can bar testimony when the police do something to influence a witness to identify a suspect.
Justice Ruth Bader Ginsburg said in her opinion for the court that in cases with no police misconduct, lawyers can cross-examine a witness and juries can weigh the reliability of the testimony.
Ginsburg said a prime reason for excluding such testimony when the police are involved is deterrence. "Where there is no improper police conduct, there is nothing to deter," she said.
Other factors apart from suggestiveness also lead to mistakes by eyewitnesses, Ginsburg said. The suspect's race, poor vision, the passage of time, stress and the duration of the encounter all may bear on the reliability of an identification, she said.
Justice Sonia Sotomayor wrote a dissenting opinion in which she said her colleagues should have been more concerned about the reliability of eyewitness identifications than police deterrence.
"The empirical evidence demonstrates that eyewitness misidentification is the single greatest cause of wrongful convictions in this country," Sotomayor said.
The court first warned of the dangers of eyewitness testimony in the 1960s, saying eyewitness identifications can have a powerful influence on juries, but also could be untrustworthy.
More recent evidence has only bolstered arguments about the danger of relying on what people think they saw. The vast majority of the nearly 300 people exonerated through the use of genetic evidence were convicted at least in part on the basis of eyewitness testimony, according to the Innocence Network, which works on behalf of convicts who claim newly discovered or untested evidence can lead to their exoneration.
In Perry's case, police were questioning a woman who said she saw someone break into a car in the parking lot of her apartment building. Unprovoked by the police, the woman identified Perry from her apartment window as he stood in the lot with a police officer. Perry tried to keep her from testifying, arguing that she picked him out only because he was standing beside an officer.
The trial court allowed the testimony and the New Hampshire Supreme Court upheld Perry's conviction.
The case is Perry v. New Hampshire, 10-8974.
Thursday, January 5, 2012
Highlights and Lowlights Every Criminal Defense Practitioner Should Know For 2012
While there are many others that deserve an honorable mention, included here are the most important, interesting, or representative California bills passed in 2011, that affect criminal law and procedure. These new laws are effective and operative on January 1, 2012.
• An amnesty program for infraction fines and bail (50% off) established in 2010 becomes operative Jan. 1, 2012 to Jul. 1, 2012. An amendment this year permits counties and the local court to agree to extend this to fines and bail for misdemeanor VC violations and related failures to appear or pay.
• Realignment, which became effective on October 1, 2011, is the major new law this year. Its most important feature is that the sentence for hundreds of low-level felonies have been realigned from state prison to county jail.
• The Deadly weapons statutes were rearranged into a new Part 6 of the Penal Code, Sections 16000. Enacted 2010, Effective Jan. 1, 2012.
• The jury must now be admonished not to “conduct research, disseminate information,” about the case until the case is over; the court must “clearly explain” that these prohibitions apply “to all forms of electronic and wireless communication.” Violation of this admonishment is a misdemeanor contempt of court.
• A fourth DUI in 10 years may result in a ten–year driver’s license revocation; starting Jan. 1, 2012.
• SB 40, the “Cunningham fix”, sunset extended to Jan. 1, 2014. When the U.S. Supreme Ct. held in Cunningham v. California (2007) that California’s Determinate Sentencing Law was unconstitutional because it made the presumptive term the middle term, but permitted the court to give the aggravated term based on facts not admitted by the defendant, nor constituting a prior conviction, nor found by the jury. The legislature quickly fixed that by making the middle term no longer the presumptive term. That was a temporary fix, but its sunset date has been extended to January 1, 2014.
• The Revised Rules of Professional Conduct adopted by the State Bar in 2010 are still not operative because they still have not been fully submitted to the California Supreme Court for approval. The bar has announced plans to submit the new rules soon.
• Preservation of assets provisions, such as forfeitures, are provided for very large multiple frauds, or large takings in elder abuse cases.
• An amnesty program for infraction fines and bail (50% off) established in 2010 becomes operative Jan. 1, 2012 to Jul. 1, 2012. An amendment this year permits counties and the local court to agree to extend this to fines and bail for misdemeanor VC violations and related failures to appear or pay.
• Realignment, which became effective on October 1, 2011, is the major new law this year. Its most important feature is that the sentence for hundreds of low-level felonies have been realigned from state prison to county jail.
• The Deadly weapons statutes were rearranged into a new Part 6 of the Penal Code, Sections 16000. Enacted 2010, Effective Jan. 1, 2012.
• The jury must now be admonished not to “conduct research, disseminate information,” about the case until the case is over; the court must “clearly explain” that these prohibitions apply “to all forms of electronic and wireless communication.” Violation of this admonishment is a misdemeanor contempt of court.
• A fourth DUI in 10 years may result in a ten–year driver’s license revocation; starting Jan. 1, 2012.
• SB 40, the “Cunningham fix”, sunset extended to Jan. 1, 2014. When the U.S. Supreme Ct. held in Cunningham v. California (2007) that California’s Determinate Sentencing Law was unconstitutional because it made the presumptive term the middle term, but permitted the court to give the aggravated term based on facts not admitted by the defendant, nor constituting a prior conviction, nor found by the jury. The legislature quickly fixed that by making the middle term no longer the presumptive term. That was a temporary fix, but its sunset date has been extended to January 1, 2014.
• The Revised Rules of Professional Conduct adopted by the State Bar in 2010 are still not operative because they still have not been fully submitted to the California Supreme Court for approval. The bar has announced plans to submit the new rules soon.
• Preservation of assets provisions, such as forfeitures, are provided for very large multiple frauds, or large takings in elder abuse cases.
Tuesday, January 3, 2012
Plan To Change CA's Three Strikes Law Moves Toward November Ballot
California voters may once again have the opportunity to change the state's three-strikes mandatory-sentencing law.
An initiative to change the law has been cleared to gather petition signatures, a potential step toward the November ballot. The proposed change would reduce the sentences of some currently serving time, and reduce prison time for those who are convicted of nonviolent felonies and already have two prior felony strikes.
In an economic analysis of the measure, the state's legislative analyst said the initiative, if passed, would save the state money but could increase costs for local governments.
"The changes would result in state prison savings, potentially ranging up to the high tens of millions of dollars annually in the short run, possibly growing in excess of $100 million annually in the long run," the analyst's report said. At least some of those savings would be offset by increased court and jail costs for counties, the analyst wrote.
Proponents of the measure must now gather more than 500,000 signatures to qualify for the ballot. California voters rejected a change in the law in 2004.
An initiative to change the law has been cleared to gather petition signatures, a potential step toward the November ballot. The proposed change would reduce the sentences of some currently serving time, and reduce prison time for those who are convicted of nonviolent felonies and already have two prior felony strikes.
In an economic analysis of the measure, the state's legislative analyst said the initiative, if passed, would save the state money but could increase costs for local governments.
"The changes would result in state prison savings, potentially ranging up to the high tens of millions of dollars annually in the short run, possibly growing in excess of $100 million annually in the long run," the analyst's report said. At least some of those savings would be offset by increased court and jail costs for counties, the analyst wrote.
Proponents of the measure must now gather more than 500,000 signatures to qualify for the ballot. California voters rejected a change in the law in 2004.
Innocent But In Jail
Last week provided yet another reminder of just how serious the problems are in the Los Angeles County jails. As if reports of assaults on prisoners by sheriff's deputies were not disturbing enough, a Times investigation has revealed that more than 1,400 people over the last five years were wrongfully incarcerated. Some were held for days, others for weeks. All were cases of mistaken identity, in many instances made worse because protests of innocence were disregarded. In one case, a construction worker with no prior arrests said he was assaulted by inmates and ignored by deputies. In another, a man whose identity was stolen by his brother pleaded with deputies to check his wallet, where he kept a judge's order indicating that a warrant with his name on it had been wrongly issued. But his jailers refused. He was booked and his fingerprints scanned. Deputies found no matching prints, even though the warrant indicated that prints were on record, according to his lawyer. Yet he was held for days.
Those are cruel deprivations inflicted on innocent people, and they should spur Sheriff Lee Baca and his department to adopt safeguards for ensuring that they have the right people behind bars.
To be fair, the problem isn't limited to Baca's department. Similar mistakes occur in jails throughout the state. And in many cases, suspects who arrived at Los Angeles County jails had been arrested by other law enforcement agencies and undergone previous rounds of checks, including confirmations of name, date of birth and other identifying information used in warrants. What is clear, however, is that the department's rules for dealing with such claims are deficient.
The department's written policy requires that deputies investigate claims of innocence involving warrants issued by judges. But it does not set strict time lines or establish rules for handling such claims in cases that do not involve warrants. The Times' investigation concluded that deputies followed the rules in only a fraction of cases in which wrongfully jailed individuals were eventually released by courts. Baca has pledged to form a task force to investigate the problem.
That's fine, but the proliferation of task forces examining problems in the county jails — there's already one looking into allegations of deputy abuse — in an important sense misses the point. For years, monitors and others have highlighted failings in the management of the jails. What Baca needs now is not another task force to help him see what's wrong; it's to revisit the recommendations for improvement and aggressively implement them.
Those are cruel deprivations inflicted on innocent people, and they should spur Sheriff Lee Baca and his department to adopt safeguards for ensuring that they have the right people behind bars.
To be fair, the problem isn't limited to Baca's department. Similar mistakes occur in jails throughout the state. And in many cases, suspects who arrived at Los Angeles County jails had been arrested by other law enforcement agencies and undergone previous rounds of checks, including confirmations of name, date of birth and other identifying information used in warrants. What is clear, however, is that the department's rules for dealing with such claims are deficient.
The department's written policy requires that deputies investigate claims of innocence involving warrants issued by judges. But it does not set strict time lines or establish rules for handling such claims in cases that do not involve warrants. The Times' investigation concluded that deputies followed the rules in only a fraction of cases in which wrongfully jailed individuals were eventually released by courts. Baca has pledged to form a task force to investigate the problem.
That's fine, but the proliferation of task forces examining problems in the county jails — there's already one looking into allegations of deputy abuse — in an important sense misses the point. For years, monitors and others have highlighted failings in the management of the jails. What Baca needs now is not another task force to help him see what's wrong; it's to revisit the recommendations for improvement and aggressively implement them.
Subscribe to:
Posts (Atom)