December 30, 2008

CALIFORNIA CRIMINAL DEFENSE NEWS: 3-STRIKES SENTENCE STRUCK DOWN AS CRUEL AND UNUSUAL PUNISHMENT

The 9th circuit here strikes down a 3-Strikes sentence as being in violation of the cruel and unusual punishment clause!

The crime here is failure of a registered sex offender to re-register within 5 days of his birthday. The court stresses that the defendant had been registering, hadn't moved, and the police knew where he was all the time. They evaluate the crime as pretty minimal.

The defendant has many serious violent and sex offenses, but they say that nothing about THIS crime shows any recidivist tendencies. Thus, they conclude that 28 years to life
violates the cruel and unusual clause.

AND THAT, MY FRIENDS, IS A GREAT START!

Gonzalez v. Duncan; 2008 DJ DAR ; DJ, 12/ /08; 9th Cir. Fed C/A
http://www.tinyurl.com/7ohl4n

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December 27, 2008

WHAT HAPPENS WHEN YOUR TRIAL ATTORNEY RESIGNS FROM THE STATE BAR DURING YOUR TRIAL?

Here's how you can tell that you're having a bad day. You're on trial for ADW and beating up your girlfriend. On day 3 of trial your attorney resigns from the state bar, to avoid being disbarred. You get convicted with a strike prior and get 8 years in prison. Not a good
day.

Hey, wait, what about that attorney thing? Well, in Johnson (1CAL.4th 689), the Cal. Supremes said that a lawyer who has resigned from the state bar isn't actually a lawyer, so a trial with this lawyer is a trial without a lawyer and requires reversal per se.

The California Attorney General here argues that the defendant did have counsel for 3 out of the 4 days of trial, so the Court of Appeal should only reverse if it finds prejudice. The Court of Appeal rejects this, reversing the conviction. See, not so bad.

But what was the Attorney General thinking? Huh?

People v. Vigil; 2008 DJ DAR 18222; DJ, 12/12/08; C/A 6th

December 23, 2008

POSSESSING MANY ITEMS OF CHILD PORN; HOW MANY COUNTS?

The defendent here possessed 46 items of child porn in 38 "containers" (disks, tapes, hard drives, etc.). So of course the DA filed 46 counts of PC 311.11, possession of child porn.

The Court of Appeal says that this is only one count, not 46. The fact that there were different containers doesn't matter.

People v. Manfredi; 2008 DJ DAR 18662; DJ, 12/23/08; C/A 5th

December 21, 2008

SAN DIEGO DUI DEFENSE NEWS: HOW TO AVOID A SAN DIEGO DUI THIS CHRISTMAS

SAN DIEGO DUI DEFENSE ATTORNEY NEWS:

San Diego law enforcement will step up San Diego DUI enforcement over the Christmas season. Expect San Diego DUI checkpoints to pop up all over the county. Expect stepped-up San Diego DUI enforcement from law enforcement.

It's starting now. Memorize these tips. They may come in handy over the holidays.

1. If you drive in San Diego during the Holidays, and you plan on having a cocktail or two, make sure you know where your license, registration and proof of insurance are. San Diego DUI officers historically write in their San Diego DUI reports (putting only facts that harm you in them) that the suspect "fumbled for his wallet" and couldn't find his registration. They use this to try to show you were impaired. Be prepared.

2. When you get signaled by the San Diego DUI officer to pull over by the officer for a DUI assessment, do so immediately and safely. Roll down your window and put your hands on the steering wheel.

3. If a San Diego DUI officer asks you if you know why you are being pulled over, remember you don't have to answer. What a dumb question! He knows why he is pulling you over. He is pulling you over to assess you for drunk driving, and he's using the fact that you might have committed some minor vehicle code violations as an excuse. Don't make any admissions to him. So, you can just ask him, "why?"

4. The next question the San Diego DUI officer is likely to ask is, "Have you had anything to drink tonight." Remember your rights? You are not required to speak to officers. I know, I know, you think, "But if I don't talk to the officer, he will be mad." Let him be. You are not at a social gathering; he is not invited to your New Year's day party. So don't worry about how he feels. He is collecting evidence against you. Don't give him any. It is best to say, "Officer, I appreciate what you do for a living, but I don't wish to answer any of your questions." You do NOT have to answer. The less from you he gets, the better for you in the long run. He is gathering evidence. But, you say, maybe he will let me go if he knows I'm being honest with him. NO. Most people who are pulled over and have alcohol on their breath get arrested. It's just a fact of life. Don't give him anything to put in that report that he can use against you later.

5. He may then say, "I'd like you to complete a series of tests for me." Again, let him know that you do not wish to participate in any tests. You are not required to comply. Officers try to give a series of field tests to determine if you are impaired. I have NEVER known any officer to do these as per the standardized protocol. I hold a certification authorized by the United Stated Department of Transportation to administer these tests, and was required to pass a practical and written test to get that certification given by a nationally re-known sergeant with the Idaho State Police. Cops learn how to do these, and then promptly forget them, making up their own "tests." Do not do them. Do NOT let the officer collect more false "evidence" against you. Just reiterate that you do not wish to perform and tests. It's your right.

6. The San Diego DUI investigation officer may then tell you he wants you to take an in field breath, hand held, breath test. Do not take this "test." It is unreliable, and regularly exhibits blood alcohol numbers higher than what you really are. The cop really, really wants you to do this now, because you have made no statements, and you have refused his field "tests." He wants this badly. He NEEDS some evidence. Do not do it. You are NOT required to blow into the little hand held machine.

7. The officer will most likely arrest you, cuff and take you downtown. You will be required to take a breath or blood test. You must choose to take one of these tests, or he will take what is called a "forced blood test" and your driver's license will be suspended for a full year.

A few pointers: If you are still absorbing alcohol, the breath test will read high. It is also an INDIRECT measurement of blood alcohol level. If you take blood, you won't get a result for at least a week. Also, SDPD and Sheriff's don't use the proper amount of sodium fluoride and potassium oxalate in the blood tubes, so you can attack those results later. Personally, I wouldn't let anyone hired by the city or county to draw my blood, after learning all I know about the incompetence of the people drawing the blood, and the lack of sanitations protocol in place. Why risk infection?

If you are arrested, you will be released within 12 hours on your promise to appear. You will received a pink piece of paper called a "DS-367." This document tells you that you, or your lawyer, must call the Department of Motor Vehicle within ten days of the arrest to secure a hearing to determine whether or not the DMV will take your license. Do not miss this deadline or you will be suspended automatically.

So, be careful. Don't drink and drive if you can help it. Drive safely. Don't talk to cops. Be polite, but do not let them gather inculpatory evidence against you. And when you get home call this San Diego DUI Defense lawyer.

(San Diego DUI Defense, San Diego DWI defense, San Diego drunk driving defense, Chula Vista DUI Defense, Vista DUI Defense, El Cajon DUI Defense, Imperial County DUI Defense, El Centro DUI Defense, Orange County DUI Defense, Riverside DUI Defense, San Bernardino DUI Defense, Los Angeles DUI Defense, San Diego DUI Defense Attorney, San DIego DUI Defense Lawyer, California DUI Defense, Murrieta DUI Defense, Temecula DUI Defense, Riverside DUI Defense, Chula Vista DUI Defense, El Cajon DUI Defense, Vista DUI Defense, Temecula DUI Defense, Brawley DUI Defense, El Centro DUI Defense, San Diego drunk driving defense, San Diego DWi defense, San Diego Bail. Bail in San Diego, San Diego Bail Bonds, California Bail, Bail in California])

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December 19, 2008

WHAT'S THE

NOTICE OF MOTION REQUIREMENT FOR SUPPLEMENTAL PITCHESS MOTIONS?

Pitchess (11 Cal.3d 531) discovery motions must comply with the notice of motion provisions in California Evidence Code sec. 1043 and California Code of Civil Procedure sec. 1005. You have to give 16 court days' notice of your motion, and you have to add 5 calendar days if you
serve by mail.

OK, your motion is granted. You investigate and now need to file a supplemental Pitchess motion to get the actual complaints. What time limit applies? This Court of Appeal says the same 16 and 5 day requirements apply to supplemental discovery motions.

COMMENTARY: So, this now begs the question....Why should be have to go back, spend more time and money, just to get basic complaint reports because the courts refuse to provide that relevant information in the first place? I find it ridiculous that courts refuse to provide us that actual complaints unless and until we can't get what we need from the initial discovery (which is usually only the names and telephone numbers of the complaining witnesses). Of course, there is no statute authorizing just this limited discovery in the first place. But our fraidy-cat judges are so scared that the cops won't back them in their next re-election, they are willing to violate the Constitute rather than go against the police legal advisors. Now do you know why I just sue cops?

Tulare v. Superior Court; 2008 DJ DAR 18492; DJ, 12/19/08; C/A 5th

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December 18, 2008

CALIFORNIA CRIMINAL DEFENSE: JUVENILE GETS CONSECUTIVE SENTENCES FOR MULTIPLE DRUG SALES

The minor sold meth five times during a football game. She got five consecutive sentences (I suppose the Court of Appeal means that the juvenile court set the maximum confinement time by imposing consecutive sentences).

The minor argues that California Penal Code sec. 654 bars consec. sentences here. The Court of Appeal disagrees, saying that each sale was a unique act with a separate objective.

In re Noelle M.; 2008 DJ DAR 18407; DJ, 12/18/08; C/A 3rd

December 13, 2008

CALIFORNIA CRIMINAL DEFENSE: STOPPING CARS TO CHECK ON TEMPORARY PERMITS

STOPPING CARS TO CHECK ON TEMPORARY PERMITS

We were worried that the Supremes would wipe out Butler (202 Cal.App.3d
602). Butler says an officer can't stop a car to determine whether tinted windows in the car are illegally tinted. The officer can't detain to find out if there's a violation of law; the officer has to have reasonable cause to believe there's a violation. However, Butler lives to fight another day!

Both these cases involve stops for cars with temporary permits. In Raymond C., the officer sees a car with no license plates and no temporary permit in the rear window. The Supremes uphold a stop, even though it turned out that there was a permit in the front
window. The Supremes say that the stop was reasonable because driving past the car to see if there was a permit in the front window might have been dangerous. However, in Hernandez, the officer saw a car with no license plates which DID have a temporary permit in the rear window.

stop.bmp

The officer stopped the car because a lot of stolen cars have forged temporary permits. The Supremes rule that this search was illegal, because the officer had nothing specific to support his belief. So I think Raymond C. is narrow, and Butler survives.

In re Raymond C.; 2008 DJ DAR 18112; DJ, 12/13/08; Cal. Supremes (we
lose)

People v. Hernandez; 2008 DJ DAR 18109; DJ, 12/13/08; Cal. Supremes
(we win)

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December 9, 2008

SAN DIEGO CRIMINAL DEFENSE: YOUR RIGHT TO GET EXPERTS

YOUR RIGHT TO GET EXPERTS
This is a case which should assure our right to government-funded experts in cases where our clients do not have the funds to pay.

The Ninth Circuit here reverses for ineffective assistance of counsel. The key evidence was blood. Defense counsel never tested the blood and never even consulted any expert to see what tests might be done on the blood or how to counter the DA's blood expert.

The court's discussion of the importance of experts to examine key evidence should greatly help us in getting courts to appoint experts we need. I have encountered denials by courts here in the past. Bring a copy of this opinion with you if you think you are going to be denied.

Richter v. Hickman; 2009 DJ DAR 11849; DJ, 8/12/09; 9th Cir. Fed C/A

December 3, 2008

rELIGIOUS FREEDOM TO SELL MARIJUANA AS A DEFENSE? HOW DUMB IS THIS?

yOU KNOW, SOMETIMES OUR CLIENTS ARE PRETTY WACKY. BUT THIS TAKES THE CAKE.

The defendant has a business, Temple 420, in Hollywood. It was a church in which members could buy marijuana. The defendant planned to sell marijuana from vending machines. The defendant said he was trying to bring religion to the pot movement because there are a million people trying to legalize pot and a lot of them don't have God in their lives.

The defendnat sold marijuana to an undercover officer. Surprisingly, he got convicted of sale
of marijuana. On appeal, he claims a religious freedom defense. Rejected. Duh.

People v. Rubin; 2008 DJ DAR 17624; DJ, 12/2/08; C/A 2nd, Div. 6
POT.jpg

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