Ineffective Assistance of Counsel Required in 1473.7 Relief?

It is no longer necessary to prove that prior counsel offered ineffective assistance of counsel if one is seeking to withdraw a plea under Penal Code § 1473.7. When 1473.7 was first enacted in January, 2017, this was required, but now it is not, as of January 1, 2019, with the passage of Senate Bill 2867. This change in the law has greatly helped those facing adverse immigration consequences as a result of a prior conviction. To read more about this change in the law, please click on the following link.



Why Is a Factual Basis for a Plea Important?

The answer to the question posed in the title to this post is immediate from anyone who has sought to set aside a plea based on later-discovered evidence of innocence, police misconduct, prosecutor misconduct or a change in the law that has retroactive effect. However, to most people, the question may only trigger a blank stare. To read why a factual basis for a plea is important, please click on the following link.



Effective Strategies for Successful Plea Bargaining

Plea bargaining is often described as a form of art because there are many ways to negotiate a resolution to a fair disposition. There is no one, best method. However, all the successful methods do share certain things in common and anyone who tries to plea bargain while ignoring such factors is simply not going to get the best deal possible. To read about effective strategies for successful plea bargaining, please click on the following link.



When Can the Prosecutor Refuse to Plea Bargain a Sentence?

There are certain types of cases wherein a prosecutor may legally refuse to plea bargain prior to trial. What are examples of such cases? Must the prosecutor engage in plea bargaining in all other types of articles? When must such plea bargaining start, if there is such a requirement? To read more about the limitations on plea bargaining and when plea bargaining is not required, please click on the following link.



Does a “Win” at a DMV Hearing Bar My DUI Case?

No is the short answer to the question posed in the title to this blog post. Why is the more important question to answer so one can still help resolve a DUI in court, possibly by referring to findings of the DMV from the DMV hearing. Why may a judge ignore a DMV ruling? Why does the prosecutor seem unimpressed by such a DMV decision? To understand the scope of a DMV ruling and the relative scope of a court’s rulings, please click on the following article.


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What Is Collateral Estoppel and When Does It Apply?

Did your attorney or a judge comment that collateral estoppel may bar or preempt the judge from reconsidering something? What is collateral estoppel anyways? Why would it apply to a certain issue? What prevents application of collateral estoppel? How does it differ from res judicata? To read more about collateral estoppel, please click on the following link.


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Under P.C. § 288.3, Must the Victim Truly Be a Minor?

The answer to the rhetorical question posed in the title to this post involving contacting a minor with knowledge and intent to commit a sexual offense is no, as exemplified by the recent reported ruling by the Fourth Appellate District Court of Appeal in San Diego. In People v. Robert Anthony Korwin, a police officer responded to Korwin’s classified ad and posed as a thirteen-year-old female. Korwin believed “she” was 13 and attempted to arrange a meeting with her, with the intent of having sex with “her.” He was arrested, charged and convicted of violating Penal Code § 288.3 and later appealed his conviction on grounds that he could not have violated 288.3 because the officer was over 18. To read how the appellate court explained this was a losing argument, please click on the following link.



What Is a Cruz Waiver for Sentencing at a Later Date?

If the judge allows one to cruise out of court after one’s plea, but before being sentencing, that judge will usually require defendant to agree to a Cruz waiver. This waiver may be entered into to allow defendant time to “get his affairs in order,” i.e. arrange for powers of attorney to allow a friend or spouse to access bank accounts to pay bills, manage property, and / or to move out of an apartment to put one’s property in storage for a few months or years. What happens if defendant does not show up for court later? To read about this and more about a Cruz waiver, please click on the following link.



Can a Car Key Be a Deadly Weapon under PC § 245(a)(1)?

The short answer to the rhetorical question posed above is yes. This ruling, by the Fourth Appellate District Court in Riverside, must be considered under the factual circumstances in which defendant swung a key toward another person with the obvious intent to help him escape capture. He put the keys in his fist with the sharp end pointing out through his fingers, almost like brass knuckles. To read more about this case and the reasoning that it critical to the holding, please click on the following link.


What Is Required and Involved in a 977(b) Appearance?

There is an exception under Penal Code § 977(b) to the general requirement that defendant must appear in court at all hearings in a felony case. Section 977(b) permits a judge to allow defendant’s counsel to appear on behalf of defendant if defendant enters into an oral or written waiver in court of his or her appearance and agrees that counsel can appear on his behalf in the future. The requirement that the waiver be entered to in court, before a judge, is most often considered critical to a valid waiver, but our office has been successful in having a judge allow 977(b) appearances without a waiver entered into in court. To read more about this, please click on the following link.

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