Suppressing Evidence with No Expectation of Privacy?

There is a constitutional right to be free of unreasonable searches and seizures without a warrant. That right covers any area in which a person has a reasonable expectation of privacy. What are such areas? Can it be the inside of a car one is a passenger in, but a car that one does not own? Most people would say no, but the following case summary shows this is the wrong answer. To read more about the limits of a motion to suppress evidence based on a Fourth Amendment violation, please click on the following link.

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Failure to Advise Client of Immigration Consequences

What rights does one have if subject to deportation because one entered a plea bargain not knowing that deportation would result? What if the attorney for defendant encouraged defendant to accept the plea bargain, perhaps to avoid jail or prison time, but the conviction triggered deportation proceeding? Can such a person ask the judge to withdraw his or her plea? Does it matter if the judge warned the client, when the plea was entered, that the plea would cause the defendant to be denied entry to the U.S., denied naturalization or asked to leave the U.S.? To read answers to these questions, click on the following link.

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A Civil Lawsuit Arising from Criminal Sexual Assault?

Many attorneys are aware that a person under age 18 is incapable of giving legal consent to criminal sexual conduct. So even if the person under 18 is the girlfriend of defendant and perhaps even initiates sexual conduct, the boyfriend can be convicted of a sex crime. Can that female under 18 then prevail in a civil lawsuit for civil battery against the boyfriend? The answer is maybe not because consent is a defense in a civil lawsuit to a charge of sexual battery, even if the victim is under 18. For more information on civil cases for the same conduct that may be a sex crime, click on the following link.

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Can I Seek Resentencing under SB 620 at Any Time?

Senate Bill 620 permits a judge the discretion to strike a ten-year sentence enhancement for use of a firearm while in the commission of a crime. News of this new law caused many family members of loved ones behind bars serving such sentences to call our office, inquiring whether this was retroactive and if so, how one could request resentencing. The new law, however, states that it is only applicable to sentences that are not yet final. So if the time to appeal a judgment has passed, SB 620 is unavailing. To read more about this law, please click on the following link.

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Does Prop 64 Legalize Having Pot in Prison & Jail?

No is the answer to question posed in the title of this blog entry. While Proposition 64, also known as the Adult Use of Marijuana Act, did legalize possession of less than 28.5 grams of marijuana by most people, Penal Code § 4573.6 prohibits the possession of certain controlled substances within a correctional facility. Which controls? Does Prop 64 cause 4573.6 to be unenforceable as to marijuana? To read a summary of a case that raised this issue, click on the following link.


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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.