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. ___.
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With the plea withdrawn, Mcelroy could be on trial within a few months.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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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.
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
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!
