AB109, Realignment and Felony Imprisonment in County Jail

In the eight years since AB109 came into effect, a great deal of ignorance and misinformation persists about what crimes are affected by realignment, allowing one convicted of certain felonies (almost 600 actually) to serve a state prison sentence in local county jail. Our office has written a short article that attempts to summarize the provisions of Penal Code § 1170(h)(3) that permits a “16, 2 or 3” year state prison sentence to be served in county jail unless it is a serious felony, violent felony or requires registration under Penal Code § 290. To read our short summary, please click on the following link.


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Why Is Credibility Important in a Criminal Case?

A client’s credibility is not just an intangible thing that one must do one’s best to maintain and preserve. It is something the jury is instructed to evaluate. Jury instructions direct the men and women of the jury to consider a party’s or witness’ credibility and advise jurors that they have discretion to disregard everything a witness or party says as untrue if they find him or her untrue in one aspect of testimony. In other words, it is graded by jurors and can be determinative on a finding of guilt or innocence. To read more about why credibility must be maintained and how to maintain it, please click on the following link.



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A Lenient View of Mental Health Diversion

In evaluating a defendant for mental health diversion, a judge must decide if defendant poses an unreasonable risk of danger to public safety. What is unreasonable risk? If a person has two DUI convictions, does that person pose an unreasonable risk of danger to public safety? Some judges may find this is so. What if the person is accused of committing criminal threats or domestic violence? Is public safety considered the same way as in a bail review motion under Penal Code § 1275? To read a summary of an appellate court decision that interpreted posing an unreasonable risk of danger the way we think most defendants would like (meaning they would then be eligible for mental health diversion), please click on the following link.



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Can Mental Health Diversion Be Sought After Sentencing?

No is the answer to the rhetorical question posed in the title of this blog post. Once a person is convicted, even if the conviction in on appeal, a convicted person cannot then seek resentencing under Penal Code § 1001.36, the Fifth Appellate District Court of Appeal recently held in an indecent exposure case following a conviction. The court of appeal decision emphasized that such a program is intended as an early disposition option and not meant to be used as a second alternative if a jury disagrees on the merits of a defense. To read more about the case that led to this ruling, please click on the following link.



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What Is Officer-Induced Confusion in a DUI Admonition?

Officer-induced confusion excuses a DUI driver’s refusal to submit to a breath, blood or urine test. It takes place when three requirements are met. First, the officer must create confusion in the mind of the DUI suspect as to what his legal obligations are to submit to a breath or blood test and the legal consequences are of refusing to submit to such a test. Second – and this is the most difficult part – the officer must acknowledge that he confused the driver (the driver cannot solely claim this). Third, the officer must have failed to clarify or correct the confusion he created. To read more about this excuse to a refusal, please click on the following link.



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What Is the Antiquity Defense to 18 U.S.C. § 922(g)?

Under federal law, the definition of a firearm under 18 U.S.C. § 922(g) does not include an antique gun. An antique gun is any firearm manufactured before 1898. What if defendant thought a gun was manufactured before 1898, but defendant was incorrect or the seller misrepresented the age of the gun (claiming it was older than it really was). This issue came up in a recent reported decision and the court rejected such a defense. To read about his opinion, please click on the following link.



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Restitution: Is Some Factual Nexus to Conduct Enough?

Unfortunately, yes is the answer to the question posed in the title to this blog post. However, this apparently new standard, a loosening of the disciplined, defense-friendly Luis M. standard of “some rational relationship to actual costs,” should be understood for its facts so that anyone facing a restitution hearing can factually distinguish “the some factual nexus” standard (Hurtado is the case name) so that victims do not enjoy an unfair windfall. To read more about this looser standard, please click on the following link.



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