What Is Penal Code § 1203.43? Who Does It Benefit?

Penal Code § 1203.43 is a relatively new provision offering relief to non-citizens who entered a delayed entry of judgment (DEJ)program, i.e. and most commonly PC 1000 for drug-related offenses, in reliance on the comments of a judge, advice of a defense attorney or statement of a prosecutor that there would be no adverse immigration consequences to such a plea because no judgement was entered, and thus, no conviction would be entered. To read more about how 1203.43 seeks to “fix” such erroneous advice, click on the following link.



What Standard Applies to Renew a Restraining Order?

If you or a loved one is subject to a civil restraining order, renewal of that order is always a concern. Rather than the order expiring at its termination date, can a judge renew the order and extend it for another year or longer? What must the protected person show to the judge to have the order extended? To read a summary of a recent reported decision in an elder abuse restraining order case, click on the following link.



What Facts Allow a Court to Deny 17(b)(3) Relief?

A reduction of a felony to a misdemeanor is never guaranteed. For some “straight felonies” that can only be filed as a felony, it is impossible. However, if the charge is a wobbler, the judge will consider the underlying facts of the case such as what injuries or harm was caused and whether restitution has been paid in full. The judge will also consider if defendant went to prison, had a joint suspended or just formal probation. The prosecutor’s position on reduction is also considered and frequently given great weight. For more information on reduction of a felony to a misdemeanor, click on the following link.




Which Court Is Proper If Crime Occurs on a Moving Train?

If a suspect allegedly commits a crime or series of crimes across several counties, which court should the case be filed in? For example, as in the following appellate court case summary, a man committed false imprisonment, lewd acts, criminal threats and indecent exposure against a woman on a train while traversing several counties? Should it simply be in the county where the first act took place? Or should it be in the
county where the most number of crimes took place? To find out the answer to this interesting question, please click on the following link.



Is Check Fraud Eligible under Prop 47 for Reduction?

Some may say that Proposition 47 opened up a “Pandora’s Box” of crimes that meet its broadly worded definition of shoplifting. Critics certainly will say that shoplifting is limited to lifting an item off a shelf and walking out with it without paying, perhaps by concealing the item in a pocket or under a coat. Check fraud would not fall within shoplifting. However, one audacious defendant convicted of felony check fraud sought to have the conviction reduced to a misdemeanor as shoplifting. To read how the appellate court regarded this argument, click on the following link.



Can Voluntary Intoxication Support Murder Self Defense?

Most criminal defense attorneys who have practiced criminal law for many years will agree that drug and alcohol use often is involved in many crimes. Can such voluntary use render one incapable of forming the specific intent required to commit murder? Can such intoxication be considered by the jury in determining if one’s use of self-defense was reasonable? This interesting question was answered by an appellate court in the following case summary. To read the summary, click on the following link.



May a Judge Compel the Testimony from an SVP, but Not an NGI?

The answer to the rhetorical question posed in the title to this blog post is yes, but why? To understand this, it is fundamental to recognize that an SVP (sexually violent predator) commitment proceeding is civil in nature, so the Fifth Amendment right to remain silent does not apply, whereas an NGI (not guilty by reason of insanity) commitment proceeding is criminal in nature and the Fifth Amendment privilege applies. To read more about these proceedings and the rights the party has, click on the following link.



What Is Cultivation of Marijuana (H & S § 11358)?

Are you or a loved one charged with cultivation of marijuana, Health & Safety Code § 11358? What is required for the prosecutor to prove to have a judge or jury convict someone of this law? Is it affected by Prop 64, the Adult Use of Marijuana law? Is this a felony or a misdemeanor? What is the punishment? What are the most common defenses? To read answers to each of these questions, click on the following link.



What Is Senate Bill 1437 (SB 1437)? Who Is Eligible?

Accomplice liability under the felony murder rule has always been regarded as unduly harsh for what is common – a girlfriend who unknowingly picks up her boyfriend from a robbery “gone bad” or a young gang member who serves as a lookout for “business,” neither of whom realize what they are doing is supporting, helping or assisting the principal(s) in committing murder. With Senate Bill 1437, our legislature seeks to correct this injustice that judges estimate affects over 900 people serving sentences for accomplice liability. To read more about this bill, click on the following link.



What Is Bigamy (Penal Code §§ 281 to 284)? Punishment?

Bigamy is being married to more than one person at the same time. We rarely see this prosecuted, but if it is, what is the punishment? Is the crime a wobbler? What are valid defenses? Is is a defense if one spouse consents to the other spouse marrying a second person? What if one of the marriages took place overseas or in another state? To read about this interesting crime more, click on the following link.