November 21, 2011

PLEADING GUILTY BARS AN APPEAL BASED ON LACK OF FACTS TO SUPPORT CHARGES

The defendant pled guilty. He admitted a factual basis for the plea. He then moved to withdraw his plea, on the basis that with respect to two of the victims, there were no facts showing that the sexual acts (on minors) were done by force or duress; if this were true, there would be insufficient evidence on those counts. The California Court of Appeal says that the defendant's plea, especially in light of the admission that there was a factual basis for it, precludes any appellate review of the sufficiency of the evidence.

People v. Voit; 2011 DJ DAR 16727; DJ, 11/21/11; C/A 6th

March 12, 2011

CALIFORNIA CRIMINAL DEFENSE: NEW IMMIGRATION CASE MANDATES NEW ADMONITIONS TO DEFENDANTS

In People v. Bonilla, the inth Circuit Court of Appeals has held that:

“A criminal defendant who faces almost certain deportation is entitled to know more than that it is possible that a guilty plea could lead to removal; he is entitled to know that it is a virtual certainty.”

Previously, criminal defendants pleading guilty were required to be informed of the "possibility" of certain immigration consequences, such as deportation and denial of naturalization. This new case raises the bar. Now, defendants must be told - in cases where deportation is almost a certainty - that the conviction will virtual assure deportation.

To read the entire case, click HERE.

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

July 9, 2010

CALIFORNIA DUI DEFENSE: NEW DUI IGNITION INTERLOCK CHANGES FOR 2010

IGNITION INTERLOCK DEVICE CHANGES 2010; by JOSHUA DALE

The new ignition interlock scheme that changed DUI laws on July 1, 2010 shouldn't phase any of us. One of the laws helps our multiple DUI offenders, the other hurts any DUI offenders in only four counties - Alameda, Los Angeles, Sacramento, and Tulare.

INTERLOCK.jpg



AB 91 - Pilot Project IID Requirements

The new "Pilot Program" comes from AB 91. The act amended Sections 13386 and 23576 of, and added and repealed Chapter 5 (commencing with Section 23700) of Division 11.5 of, the Vehicle Code, relating to vehicles. It is an experiement lasting until January 1, 2016 when DMV must report on the effectiveness of this scheme.

All DUI convictions after July 1, 2010 cause notice to be sent to offenders from the DMV notifiying them they must install the interlock device for a period of time. All first time and repeat violators of California Vehicle Code 23152 or 23153 are included. Note that this doesn't include dry or wet reckless.

First offenders will receive a 5 month IID requirement. Second offenders a 12 month requirement. Third offenders a 24 months requirement and fourth offenders 36 months. 23153 convictions require more time.

Persons are exempt of the requirement if within 30 days of notice by the DMV, the person certifies no ownership of a vehicle, no access to a vehicle at his or her residense, acknowledgement of licensing, IID requirements, and requirements if situation changes. Motorcycles are not included at this time.

In order to grasp all the ramifications of the new ignition interlock experiment law read it at http://www.leginfo.ca.gov/calaw.html - public defenders should pay particular attention to the sliding scale fees that low income persons will pay. It is based on the Federal Poverty Levels.

Note also, that the judge does nothing in sentencing - this is all handled at the Department of Motor Vehicles depending on from what court the abstract comes from.

SB 598 and SB 895 - Multiple Offender IID Benefits

SB 598 amended Sections 13352, 13352.5, 23109, 23550, 23550.5, 23552, 23566, and 23568 of the Vehicle Code, relating to vehicles. SB 895 amended Sections 13352.5, 13353.3, and 23247 of the Vehicle Code, relating to vehicles, and declaring the urgency thereof, to take effect immediately on July 1, 2010.


These two pieces of legislation confer to multiple offenders the possibility of a restricted license after a shorter amount of time regardless of the DMV administrative per se suspension. Again, this happens at the DMV and has nothing to do with the judge unless the judge has prohibilted a restricted license to the defendant. Here's how it works.

A convicted second offender can apply for a restricted license after 90 days suspension - A convicted third offender can apply for a restricted license after 6 months suspension - A convicted fourth offender can apply for a restricted license after 12 months suspension. Several of the new provisions of 13352 apply to persons convicted of 23153 too.

The secret to getting the administrative per se DMV suspension credited and/or terminated is written into subdivision (c) of Section 13353.3. In each offender's case, he or she must have insurance (SR-22), be in the proper class for the correct amount of time (and stay in the class), have proof of the IID installed in the right vehicle, and pay the fees demanded by the DMV.

The length of how long they must keep the IID is found in California Vehicle Code Section 23575(f). The restriction shall remain in effect for at least the remaining period of the original suspension or revocation and until all reinstatement requirements in Section 13352 are met.

Finally, pursuant to Section 23620, a violation of Habor and Navigations Code 655 is included in 13352's legislative changes making this count as a separate offense in calculating length of IID required.


This work is licensed under a Creative Commons License.

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April 5, 2010

CALIFORNIA CRIMINAL LAW: DUTY TO ADVISE CLIENTS OF IMMIGRATION CONSEQUENCES

The US Supremes here rule that the failure to advise a criminal defendant in state court of the federal immigration consequences of his plea is ineffective assistance of counsel. They remand for a hearing on prejudice. They make it clear that a generic advisement that the plea will have some unspecified consequences isnit enough.

Your duty is to advise the defendnate specific consequences of the plea. This duty only involves consequences that are clear, succinct and straightforward. As Alito points out, this just means a whole jurisprudence on what is clear and what is in doubt. We thought that this case was only going to say that you have a duty not to misadvise the client, but nope, you've got to give accurate advice on the consequences. It is not clear how this affects Kim (45 Cal.4th 1078) and Villa (45 Cal.4th 1063), the cases from the Cal. Supremes limiting challenges to immigration misadvisements; those cases require custody, real or constructive, and reject IAC as a ground for such a challenge.

Whatever this means, it surely means that weive all got to understand immigration consequences, and explain them to our clients. At least the consequences that are clear.

Padilla v. Kentucky; 2010 DJ DAR 4858; DJ, 4/1/10; US Supremes

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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January 18, 2010

SAN DIEGO CRIMINAL DEFENSE LAWYER: RESTITUTION FOR COSTS AT KAISER

At Kaiser Permanente, you pay a membership fee, then you pay only a token amount for medical services, less than the actual costs of those services. The defendant here injured the victim, who got treatment at Kaiser. The trial court rdered no restitution. The DA wants restitution for the full amount Kaiser claimed. The California Court of Appeal must order payment for the actual services provided, even though the victim didn' actually pay
for them. But it s not the full amount claimed. Kaiser had agreed to accept a lesser amount as payment in full; that's the amount to be ordered.

People v. Duong; 2010 DJ DAR 673; DJ, 1/15/10; C/A 1st, Div. 3

January 16, 2010

CALIFORNIA C RIMINAL LAW: PROVING OUT-OF-STATE PRIORS

PROVING OUT-OF-STATE PRIORS
The def.is sentence here was doubled because of an Alabama prior. For
that prior to qualify as a strike, the "face of the record" had to show
infliction of great bodily injury by the def. on someone other than an
accomplice. The C/A assures us that the document at issue here, a copy
of an original certified copy of the indictment, qualifies as face of
the record. Remember, even if a crime isnit on the PC 1192.7(c) serious
felony list, it can still be a strike prior if the "face of the record"
shows conduct thatis on the list.

People v. Skiles; 2010 DJ DAR 541; DJ, 1/13/10; C/A 4th, Div. 3

January 14, 2010

SAN DIEGO CRIMINAL DEFENSE: MULTIPLE SENTENCES FROM A SINGLE ACT

Penal Code section 654 bars multiple sentences from a single act. Here, the defendant was convicted of theft and burglary, the target of the burglary being the theft. Obviously, California Penal Code 654 applies, so the trial court sentenced the defendant on the burglary and deferred sentencing on the theft.

This California Court of Appeal struggles over precisely how 654 is to be implemented, and concludes that the trial court is to impose sentence on the burglary, and then impose and stay execution of the sentence on the theft.

People v. Alford; 2010 DJ DAR 627; DJ, 1/14/10; C/A 3rd

December 23, 2009

CALIFORNIA CRIMINAL LAWYER MARY PREVOST: RESTITUTION FOR THE COSTS OF INVESTIGATION

RESTITUTION FOR THE COSTS OF INVESTIGATION

There are some good cases on why courts can't order restitution for the costs of investigation or prosecution. (Baker, 39 Cal.App.3d 550; Torres, 59 Cal.App.4th 1.)

This California Court of Appeal throws this settled area into confusion, claiming that as part of the court's power to devise probationary conditions, the costs here of determining whether the trash involved hazardous waste and cleaning up that waste could be ordered paid as a condition of probation.

The California Court of Appeal claims to distinguish Baker and Torres, saying that in those cases, the order was for potentially unlimited costs and here it was limited to a specific amount. Huh?

People v. Tarris; 2009 DJ DAR 17767; DJ, 12/23/09; C/A 4th, Div. 2

December 14, 2009

LAW OFFICES OF MARY PREVOST: WHAT HAPPENS WHEN AN ATTORNEY FAILS TO ADVICE ON IMMIGRATION CONSEQUENCES?

I'm not quite sure why this case is published. California Penal Code sec. 016.5 requires the court to advise a def. of potential immigration consequences of a plea. The 1016.5 advisement was given here. The California Court of Appeal rules that the def. can't get relief under 1016.5 when 1016.5 was complied with. They also rely on the recent Kim case (45 Cal.4th 1078) to reject other challenges by this defendant to his plea.

People v. Limon; 2009 DJ DAR 17333; DJ, 12/14/09; C/A 5th

October 26, 2009

SAN DIEGO CRIMINAL DEFENSE LAWYER: NO COUNTY JAIL FOR JUVENILES

The 18-year old here was filed on in juvenile court for criminal conduct done while he was a juvenile. The juvenile court ordered him held in county jail pending the adjudication hearing, and
then imposed a disposition of a year in the county jail. Right, we're
rehabilitating these kids by locking them up in jail.

The Court of Appeal correctly concludes that the minor should not have been detained in county jail pending adjudication, and should not have had a disposition of county jail imposed on him. They hold that county jail is not an available juvenile court dispositional alternative.

In re Ramon M
.; 2009 DJ DAR 15115; DJ, 10/26/09; C/A 4th, Div. 3

October 13, 2009

CALIFORNIA CRIMINAL LAW: TRIPLING LIFE SENTENCES? NO!

TRIPLING LIFE SENTENCES

The defendant here got life without parole (LWOP); tripled! Hey, he had many strike priors. The Court of Appeal says that the strike law provides for doubling of determinate terms and the minimum terms of indeterminate sentences. The same rule applies here. Since the sentence was indeterminate, it doesn't get tripled.

People v. Coyle; 2009 DJ DAR 14737; DJ, 10/13/09; C/A 3rd

October 12, 2009

San Diego DUI Defense: San Diego Saved from First Time Ignition Interlock Requirements in DUI cases.

San Diego Dui Offenders will be spared the requirement of installing Ignotion Interlock Devices in their cars if they are convicted of a first offense.

Governor Swartzenegger signed a bill requiring first time offenders in Sacramento, Alameda, Tuare and Los Angeles counties to install ignition interlock devices.

What is so strange about this bill is that it omits the majority of counties, including San Diego, Orange, Riverside, etc...

We can expect a substantial equal protection challenge from criminal defense attorneys in the counties where this requirement takes effect in January.

For more, see: http://www.mercurynews.com/news/ci_13539936

October 8, 2009

SAN DIEGO CRIMINAL DEFENSE: CONSENSUAL LEWD ACTS CAN STILL REQUIRE MANDATORY SEX REGISTRATION

Here is another Hofsheier (27 Cal.4th 1185) case, this one a loss. In Hofsheier, the California Supreme Court struck down the mandatory sex registration requirement for California penal Code sec. 288a, consensual oral copulation with a minor (16 in that case) as violative of equal protection, because consensual sex with that same minor (Penal Code 261.5) doesn't mandate Penal Code 290 sex registration.

This case involves mandatory registration for violation of Penal Code 288(c)(1), lewd acts with a minor 14 or 15 by a person more than 10 years older.

Here are the Court of Appeal's reasons for saying Hofsheier doesn't apply. First,
288(c)(1) requires specific intent! Right, you can certainly have consensual sex with a minor without any intent to do so. Second, the requirement that the def. be more than 10 years older somehow justifies distinguishing Hofsheier. Third, 288(c)(1) victims are 14 or 15, while the victim in Hofsheier was 16. Right. Huh?

So does this mean that every person who has sexual conduct with a person who is 14 or 15, when the defendant is 10 or more years older, is required to register, no matter what
form that sexual conduct may take? There is thus no group of people who commit this offense who are not required to register, unlike the Hofsheier situation, where oral cop was registrable but intercourse was not. Consequently, there is no group of "similarly situated" people who do not have to register.

Just to restate this, consensual sex or oral copulation with a 16-year old, no mandatory registration. Hugging a 15-year old with lewd intent, mandatory registration.

People v. Cavallaro; 2009 DJ DAR 14563; DJ, 10/8/09; C/A 6th

September 24, 2009

CRIMINAL LAW & PROCEDURE, SENTENCING ENHANCEMENT VACATED

Trial court's imposition of enhanced sentencing on a defendant convicted of receiving stolen property while on a release from custody on his own recognizance (O.R.) is vacated as Penal Code section 1318 was not complied with in connection with defendant's release from custody and defendant did not commit a new felony while on an O.R. release. Therefore, since defendant's release did not qualify as an O.R. release under applicable law, the enhancement findings under section 12022.1 were not supported by the evidence

People v. Hernandez, No. F055430

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September 16, 2009

CALIFORNIA SEX CRIMES: FULL CONSECUTIVE SENTENCES AND JESSICA'S LAW

FULL CONSECUTIVE SENTENCES AND JESSICA'S LAW? NO

California Penal Code sec. 667.6(c) provides for full consecutive sentences for sex crimes. Until Jessica's Law was enacted, 667.6(c) said that the defendant got a full consecutive sentence for "each violation" of a specified sex offense, whether or not the crimes were committed during a single transaction.

Jessica's Law (Prop. 83), effective 11/8/06, repealed 667.6(c) and said instead that the defendant gets a full consecutive sentence for each crime involving the same victim on the same occasion. Clear, yes? Well, the AG argues here that the purpose of Jessica's Law was to strengthen the laws applicable to sex offenders, so the Court of Appeal should rewrite the statute to its previous version.

This Court of Appeal declines to do so, ruling that a general statement of intent can't overcome the express and clear statutory language.

People v. Goodliffe; 2009 DJ DAR 13697; DJ, 9/16/09; C/A 3rd

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August 17, 2009

CALIFORNIA CRIMINAL DEFENSE: CALCULATING INDETERMINATE AND DETERMINATE SENTENCES

CALCULATING INDETERMINATE AND DETERMINATE SENTENCES

This California Court of Appeal writes a screed about the unintelligibility of the determinate sentencing law. No kdding. What is more infuriating than trying to figure out sentencing in California?

They try to help folks make correct calculations, using the "box" analogy. The trial court computes all indeterminate sentences separately, and puts that in one box. The court then computes all determinate sentences separately, in another box, then adds the two boxes together. Hey, sometimes there are three boxes! What fun.

People v. Neely; 2009 DJ DAR 12077; DJ, 8/17/09; C/A 2nd, Div. 6

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

August 10, 2009

MULTIPLE CRIMES, THE ONE-STRIKE SEX LAW, AND EX POST FACTO

A sentence for a crime can't be increased after commission of the
crime, because of ex post facto.

At the time of the first sex crime, California Penal Code sec. 784.7 required prosecution in the county where the crime occurred. 784.7 was then amended, and when the defendant committed the second sex crime, 784.7 permitted joining all sex crimes in any county where one was committed.

The defendant was charged under California Penal Code sec. 667.61, the one-strike sex
law, on the basis of being convicted of multiple offenses in one proceeding. So does ex post facto bar this? Nope, says this Court of Appeal, with incomprehensible reasoning.

Hey, the defendant was on notice about the 784.7 amendment when he did the second crime. Huh?

People v. Acosta; 2009 DJ DAR 11623; DJ, 8/10/09; C/A 4th