Penal Code § 851.6(b) obligates an arresting agency to issue a certificate to an arrested person describing the arrest as a detention, not an arrest, if no criminal case is filed. The arrested person, however, must usually assert this right or else the arresting agency will not change the record to a detention only. This means that if the arrested person, against whom no criminal case was filed, trusts the arresting agency to make the change in the Department of Justice database, it will not get done. Is this a civil wrong by the arresting agency? Click on the following link to find out more on this issue.
The answer to the question posed in the title is yes, but the real issue is why and how? To read about such a case where Prop 47 was denied for someone being accused of felony shoplifting (Penal Code § 666) due to an obligation to register as a sex offender from a juvenile matter, click on the following link, as the appellate court ruling contains some interesting logical reasoning.
As one may know, one is not eligible for civil commitment as a Sexually Violent Predator (SVP) until one is released from prison. This is stated at Welfare & Institutions Code § 6604. There can no SVP trial until that time. Are there exceptions to this rule? Click on the following link to find out answers to this interesting question.
As one may know, there are people who favor one store to shoplift from over and over. It may be because of a lax security system or it may be due to the type of items stolen, or both. It the following case, an individual was convicted of stealing from one Home Depot, but the judge made a probation condition that the suspect stay away from all Home Depots in the State of California. Is such a condition overly broad? What did the appellate court have to say about this? Click on the following link to find out.
In a murder case, unless it is a lying in wait, murder for financial gain or otherwise cold-blooded act, there is usually anger or provocation involved. If the judge does not add a provocation defense jury instruction, is this error? To read about this issue by reviewing an appellate court opinion where this was one of the issues on appeal, click on the following link.
Gamesmanship by police of a suspect under great stress to elicit a confession is the type of constitutional violation Miranda v. Arizona is meant to prohibit and protect against. It has been over fifty years since Miranda was decided, yet police continue to violate its holding. To read about a murder conviction overturned for just such police conduct, click on the following link.
Sometimes, a judge will sustain a demurrer with leave to amend just to force the prosecutor to amend the complaint to give more specificity so the case does not have to flush out the gist of the complaint in discovery or over time in discussions. However, the key purpose of a complaint is to give defendant notice of the charges. Read about a Riverside County case where a judge sustained a demurrer with leave to amend twice, only to be reversed. The summary is accessible by clicking on the following link.
When a defendant pleads in the open, he or she permits the judge to impose a sentence on all counts. Does that require the judge to then impose sentencing enhancements, i.e. a gang enhancement if the complaint alleges this? If the judge has discretion in how to sentence someone, does the judge likewise have discretion whether to strike the gang enhancement? A judge in Orange County thought the answer was yes. Was he correct? Click on the following link to find out.
In resentencing someone on a third strike under Prop 36, having the intent to cause great bodily harm is disqualifying. Stalking does not require that one have intent to cause great bodily harm. Therefore, why do so many judges deny Prop 36 relief on stalking convictions? What else can the judge consider? To read about the analysis required under Prop 36, click on the following link.
If a person seeks resentencing under Prop 47 for a felony case involving multiple convictions for passing bad checks, may a judge add up the checks and deny Prop 47 relief if the checks add up to more than $950? This might seem permissible, as a prosecutor can charge felony vandalism by adding up multiple acts of vandalism to find a repair cost exceeding $400. If the same true in approaching resentencing? Cick on the following link to find out.