May 27, 2011

SAN DIEGO CRIMINAL DEFENSE: MIRANDA DOES NOT APPLY TO PROBATION VIOLATIONS

DOES MIRANDA APPLY AT PROBATION VIOLATIONS? NO

This California Court of Appeal holds that statements made in violation of Miranda may be used at a probation violation hearing. There's some case law saying that a 4th Amendment violation doesn't require exclusion of the evidence at a probation violation hearing, unless that violation shocks the conscience of the court. (See Hayko, 7 Cal.App.3d 604.) This Court of Appeal takes that and runs with it. Their exception is the related and perhaps lesser
standard of whether the police engaged in "egregious conduct." This case is just wrong. An officer violating his training and the constitution is always egregious.

People v. Racklin; 2011 DJ DAR 7220; DJ, 5/20/11; C/A 1st, Div. 1

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February 8, 2011

CALIFORNIA CRIMINAL DEFENSE: MANDATORY NO-CONTACT ORDERS WITH UNDERAGE SEX VICTIMS

California Penal Code section 1202.05(a) says that the sentencing court must impose a no-contact order barring contact between the defendant and any victim of a sex count under the age of 18. The defendant here was convicted of various counts, but the sex counts where the victims were under 18 were dismissed.

But the court imposed the no-contact order. The California Court of Appeal reverses. To trigger the mandatory no-contact order, the defendant has to actually be convicted of a sex count with an under 18 minor.

People v. Ochoa; 2011 DJ DAR 2105; DJ, 2/8/11; C/A 3rd

January 18, 2010

CALIFORNIA SENTENCING LAW: ENHANCEMENTS AND MINIMUM PAROLE ELIGIBILITY

The defendant here was convicted of attempted premeditated murder. He got a 25 years-to-life enhancement under California Penal Code sec. 12022.53 for firing a gun causing great bodily injury. He also got a minimum parole eligibility of 15 years, under PC 186.22(b)(5). Relying on Brookfield (47 Cal.4th 583), the California Court of Appeal holds that the defendant can't get BOTH the GBI enhancement and the minimum parole eligibility term; he gets the former, not the latter. Oh well. C'est la Gare.

People v. Gonzalez; 2010 DJ DAR 551; DJ, 1/13/10; C/A 2nd, Div. 8

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August 16, 2009

USE OF A WHIZANATOR PERMITS TERMINATION OF PROP 36 PROBATION-OOPS!

OK, tied for outrage of the week. The defendant here was on Prop. 36 probation. He used a whizanator device to produce fake urine during a drug test. Incredibly, over an excellent dissent, the California Court of Appeal rules that use of the whizanator isn't drug related and so permits termination of 36 without three chances. The majority says that this is preparing false evidence, violating California Penal Code sec. 134, and interferes with the peace officer, namely the probation officer, violating California Penal Code sec. 148. WHAT?

People v. Haddad; 2009 DJ DAR 11525; DJ, 8/7/09; C/A 2nd, Div. 5

February 24, 2009

CALIFORNIA CRIMINAL DEFENSE: IT'S OK TO IMPOSE GPS DEVICE ON JUVENILE AS A CONDITION OF PROBATION

OK TO IMPOSE GPS DEVICE ON JUVENILE AS A CONDITION OF PROBATION

The minor was found a delinquent ward of the juvenile court for receiving stolen property for the benefit of a criminal street gang and vandalism for the gang. The court said this was a camp case, but instead ordered home on probation with conditions.

One of those conditions was that the minor wear a global positioning system (GPS) device. The Court of Appeal upholds this condition. The Court that sometimes adults can have the wearing of a GPS device as a condition of probation, and if adults can be so ordered, so can juveniles. They claim that there's no invasion of privacy, because it just tells where he is,
it doesn't intrude on his actual conversations.

They do stress that this was imposed as a less harsh alternative, so maybe we can limit this to
that situation.

In re R.V.; 2009 DJ DAR 2383; DJ, 2/20/09; C/A 1st

January 1, 2009

PROBATION CONDITIONS ABOUT THE PRESENCE OF PETS

In an ordinary case (this is possession of meth), can the court require probationers to notify probation which pets they currently have and of any change in their pet status? The majority says that pets can be dangerous to probation officers, or might bark or quack or something
and warn probationers that the probation officer is coming, so the probationers can destroy all that illegal stuff they always have around.

There's a dissent from Kennard and Moreno, apparently the only justices with any common sense. The dissent points out that the majority treats all pets as dangerous:

"Falling within that reach would be Jaws the goldfish, Tweety the canary, and Hank the hamster, hardly
the kinds of pets one would expect to strike fear in a probation
officer."

I guess they don't know some of the probation officers we know. You have to wonder about the judgment of the court in granting review and expending resources on this subject, while at the same time the court is trying to transfer death penalty appeals to the Court of Appeal because
they are so overwhelmed.

People v. Olguin; 2008 DJ DAR 18850; DJ, 12/30/08; Cal. Supremes

January 1, 2009

PROBATION CONDITIONS ABOUT THE PRESENCE OF PETS

In an ordinary case (this is possession of meth), can the court require probationers to notify probation which pets they currently have and of any change in their pet status? The majority says that pets can be dangerous to probation officers, or might bark or quack or something
and warn probationers that the probation officer is coming, so the probationers can destroy all that illegal stuff they always have around.

There's a dissent from Kennard and Moreno, apparently the only justices with any common sense. The dissent points out that the majority treats all pets as dangerous:

"Falling within that reach would be Jaws the goldfish, Tweety the canary, and Hank the hamster, hardly the kinds of pets one would expect to strike fear in a probation officer."

tweety.bmp

I guess they don't know some of the probation officers we know. You have to wonder about the judgment of the court in granting review and expending resources on this subject, while at the same time the court is trying to transfer death penalty appeals to the Court of Appeal because
they are so overwhelmed.

People v. Olguin; 2008 DJ DAR 18850; DJ, 12/30/08; Cal. Supremes

August 4, 2008

SAN DIEGO CRIMINAL DEFENSE: COURT CAN'T MODIFY PLEA AGREEMENT AFTER IMPOSITION OF SENTENCE

The defendant here pled guilty pursuant to a plea bargain which contemplate a setnece of 365 days. The court imposed the 365-day sentence.

Four months later the defendant returned to court and asked that the probation condition of 365 days in jail be modified to 360 days in jail in order to prevent the conviction from qualifying as an aggravated felony for federal immigration purposes.

The court denied the motion, stating that it didn't have the power to do so, because it would violate the plea agreement. The California Supreme Court agreed.

People v. Segura; 2008 DJ DAR 12174; DJ, 8/4/08; Cal. Supremes

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April 18, 2008

CALIFORNIA SENTENCING LAW: CAN COURT AGGRAVATE TERM BECAUSE DEFENDANT IS ON PROBATION?

SENTENCING - AGGRAVATED TERM BASED ON PROBATIONARY STATUS

People v. Medrano (C.A. 3rd, 4/18/08, C056068) 08 C.D.O.S.

Imposition of the upper term by the sentencing judge based on a defendant's probationary status did not violate Cunningham v. California (2007) 549 U.S. ___.

April 11, 2008

JUDGE SAYS PACIFIC LAW CENTER FAILED CLIENT - ALLOWS DEFENDANT TO WITHDRAW PLEA

JUDGE RULES PACIFIC LAW CENTER DID POOR JOB, ALLOWS PLEA TO BE WITHDRAWAL


By Greg Moran
UNION-TRIBUNE STAFF WRITER

4:56 p.m. April 11, 2008

SAN DIEGO – A Superior Court judge ruled Friday that a 19-year-old man who pleaded guilty in December to shooting two people was poorly served by his lawyers and can withdraw his plea and go to trial.
Judge Robert Ahern said Antoine Mcelroy's legal representation by lawyers who then worked at the heavily advertised Pacific Law Center in San Diego was ineffective.

After a day of testimony on Thursday Ahern said he did not believe the lawyers “adequately and properly represented the defendant.”

Mcelroy pleaded guilty to charges of attempted murder, using a firearm and doing the May 4, 2007, shooting in San Diego on behalf of a street gang. He agreed to a sentence of 37 years in prison.

But after the plea, Mcelroy had second thoughts, and his family got a new lawyer, Thomas Matthews, to try to reverse it.

With the plea withdrawn, Mcelroy could be on trial within a few months. If convicted, he could be sentenced to life in prison.

Matthews contended that the guilty plea was flawed because Mcelroy balked at admitting the gang allegation but his lawyer, Arthur Katz, overrode the objection.

Matthews also said that the work done by the law firm, which has been the subject of numerous complaints from former clients and lawsuits from former lawyers over its business practices and legal work, also let down Mcelroy. He said the firm did little work on the case after collecting a $31,000 fee and did not investigate possible defenses.

Moreover, Mcelroy's sister alleged she was having a sexual relationship with Alan Spears, the former supervising lawyer for the firm, while her brother's case was pending. Spears was Mcelroy's lawyer initially, but the case was handed to Katz.

At an all-day hearing Thursday, Katz testified and defended his work. He said he met numerous times with Mcelroy, discussed the case with him and analyzed the options.

He also said Mcelroy insisted that he get a plea bargain with prosecutors that would not give him a sentence of life in prison. He said the case against Mcelroy was solid and that going to trial “given the totality of the evidence, it certainly did not look good for him.”

Mcelroy also testified, however, and said he had little communication with Katz or Pacific Law, and his numerous phone calls were never returned. He contended he felt pressured into taking the deal and believed his lawyer was unprepared for trial.

Prosecutor Melissa Diaz argued that Katz's work on the case was fine and served Mcelroy well. She said he made shrewd tactical decisions that got the best possible result for his client. And she said the relationship Spears had should have no bearing because he was not the lawyer on the case.

But Ahern disagreed.

Outside of court Matthews said he was pleased with the outcome. He had described the legal work as “despicable” during the hearing.

“This is a victory for the community in that Pacific Law Center has been held accountable in a public forum for their poor legal work,” he said.

Katz said Friday that the entire issue “was generated by the PLC flap” and the publicity surrounding criticisms of the law firm. “Now, his lawyer will find out the realities of the case rather than grandstand about PLC,” he said referring to Mcelroy and Matthews.

All the events in the Mcelroy case occurred before local attorney Kerry Steigerwalt bought a controlling interest in the firm. Katz left the firm in January.

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December 21, 2007

HEARSAY ADMISSIBLE AT CALIFORNIA PROBATION REVOCATION PROCEEDINGS

People v. Abrams, No. B194835

The Defendant's prison sentence imposed following probation revocation proceedings on a charge of petty theft with prior convictions is affirmed. The issue in this case was whether or not information that the defendant has reported to his probation officer or made monetary payments to the officer are essentially non-testimonial. The court held that even if the statements are hearsay, they are admissible at a probation violation hearing.

October 4, 2007

CALIFORNIA COURT: THERE IS NO VIOLATION OF PROBATION IF YOU FAIL TO REPORT AFTER YOU ARE DEPORTED

The defendant here was convicted, given probation, ordered to serve a year in the county jail. He was also ordered to report to probation within 24 hours of his release from jail, or, if he was deported, within 24 hours of his reentry into the US. Of course, it's rather absurd to think if he snuck back in after his deportation that the first thing he would do is go report himself, but that's another story.....

The defendant was deported, reentered and, of course, never reported. There's a case saying that on these facts a defendant can have his probation violated. (Campos, 198 CA3d 917.) This California COurt of Appeals disagrees. They point out that no one knows when the defendant reentered, so there's no evidence that the defendant failed to report to probation 24 hours after his reentry.

The def. did fail to report 24 hours after his release, but the Court of Appeals says that when the government deported him, the government made reporting impossible. They rule that a violation of probation may only be found if the violation was willful, which it wasn't here.

People v. Galvan; 2007 DJ DAR 15161; DJ, 10/1/07; C/A 2nd, Div. 3

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July 6, 2007

CALIFORNIA COURT OF APPEAL RULES PROBATION TERMS MUST ADDRESS PROBATIONER'S INDIVIDUAL NEEDS

PROBATION CAN'T HAVE RIGID POLICIES WHICH AREN'T PARTICULAR TO A SPECIFIC DEFENDANT'S SITUATION (People v. Smith; 2007 DJ DAR 9934; DJ, 7/3/07; C/A 2nd, Div. 1)

The defendant was convicted of Penal Code section 288(a) and was granted probation. One of Probation was that he obey all orders of probation. But the Los Angeles Probation Department had a regulation prohibiting any defendant who has to register under Penal Code section 290 (registration for sex offenders) from leaving the county for any purpose. The defendant's job, however, required him to leave Los Angeles County sometimes, though he always returned at night. Of course, probation wouldn't relent.

The California Court of Appeal finds that probation can't just have policies which aren't particularized to an individual defendant's situation.

Practice Pointer: We must seek out and challenge these "policies" of our respective probation departments citing the Smith case. If need be, file an injunction to stop the application of such a policy. Otherwise, appeal. But don't let them continue. Probation often times believes it has more power than it does. The Smith case clears that up nicely, thank you!