Are Miranda Warnings Required During a Pretext Call?

One of the more clever techniques that police often use in sex offense cases is a pretext call. The alleged victim will telephone the suspect and ask to discuss the alleged crime. Police will coach the alleged victim in what to say, how to say it, when to ask follow up questions and when to remain silent. The police will then listen in on the call and record it for use in court. Is this a Fifth Amendment violation if Miranda warnings are not given prior to the questioning? After all, is not the alleged victim acting an agent of the police? The issue has been repeatedly debated. For a summary of the latest reported decision on this issue, click on the following link.

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Motion to Vacate Conviction for Wrong Immigration Advice?

It is quite common for criminal defense attorneys to handle cases for those charged with a crime that is considered an aggravated felony under federal immigration law, but can be resolved in state court with no jail time. Indeed, for those charged with such crimes, such as possession of a controlled substance (other than marijuana), the primary concern is avoiding jail time so he or she can continue working to support a family who depends upon such income. In the following case summary, a young person was charged with such a crime and took the expedient route – formal probation and no jail, only to be subject to deportation proceedings. How did his claim of incorrect immigration advice fare in court? To read about this case, click on the following link.


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Senate Bill 180 Is Not Retroactive to Lower Prior Sentences

Not all new laws are retroactive to benefit or correct prior rulings or sentences that the new law addresses. Senate Bill 180, which was recently passed to narrow the scope of the three-year sentence enhancement for someone convicted of certain drug offenses for a second or greater time, states in its text that it is not retroactive to final judgments already final. To read a case with this issue being challenged in a court of appeal, click on the following link.

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What Will a Background Search Show After My Expungement?

Many of our clients assume or are told by others that an expungement “wipes one’s record clean.” After an expungement is ordered, in other words, one has no convictions and there is nothing showing on one’s record. This is not exactly true in California, although it may be in other states. In California, an order granting relief under Penal Code § 1203.4 (“expungement”) does return defendant’s last plea in a case to not guilty and shows the case is dismissed, but the record of being charged remains. To read more about what one’s background report will show after expungement, click on the following link.

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Is a Waiver of the Right to Appeal in a Plea Enforceable?

It is common for one to waive the right to appeal a judgement and / or sentence in entering into a plea bargain. Yet is this enforceable to bar an appeal later? Can an appellate court simply deny the appeal, even if it is meritorious, because of this waiver? What if a new law is passed, allowing such an appeal or new evidence is discovered – does that matter or invalidate such an appeal? To read more about this interesting issue, click on the following link.


Gang Enhancement Affirmed Due to Character Witness Testimony

Michael Resendez, acting as his own attorney, called two friends to court to testify as character witnesses during the sentencing phase of trial. Resendez was charged with assault with a deadly weapon with a gang enhancement. He was also charged with street terrorism under the California Street Terrorism Enforcement and Prevention (STEP) Act. The two friends testified that they were gang members and Resendez was their friend and a really great guy who they knew well. Was this testimony, ironically elicited by defendant (not the prosecutors), sufficient to prove the street gang charge? To find out, click on the following link.

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Counsel Allowed to Argue About Striking Firearm Enhancement

With Senate Bill 620 becoming effective in 2018, judges were given the authority to strike the Penal Code § 12022.53 ten-year sentencing enhancement for use of a firearm while committing a crime. This new law has sparked a flood of calls to lawyers asking if the law is retroactive. A further issue is whether, in light of this judicial power, counsel can argue at sentencing that the judge should exercise his or her discretion to strike this sentencing enhancement. A recent case established that a court must allow defense counsel to make such arguments. To read about this opinion, please click on the following link.