Carjacking is Not a Crime of Violence under USSG § 4A1.1?

Why is a prior conviction for carjacking under California law not a crime of violence under federal law for purposes of sentencing? The answer lies in the results of the categorical approach, wherein a court will compare the elements of one crime (carjacking) to the requirements of a crime of violence under federal law. If the state court crime requires more conduct than the federal requirements, it will not meet the federal definition because it includes more conduct than the federal requirements. To see this analysis in action, please click on the following link –

Premeditation Based on Natural and Probable Consequences?

The following summary of a recent Fourth Appellate District Court case is significant insofar as it shows the trial court erred in allowing a conviction for attempted murder based on the natural and probable consequences doctrine. Most criminal defense attorney would argue that attempted murder is a specific intent crime, so it could not arise anyways under a natural and probable consequences theory of murder. Instead, the prosecution would have to prove specific intent to commit murder, which would have to be through implied malice in committing a dangerous felony, which did not take place in this case. Indeed, the appellate court found that the underlying crime was just disturbing the peace. To read this case, which literally shows how in Orange County disturbing the peace can be attempted murder (sadly), please click on the following link – https://

Can Conduct in Custody Count under PC 1203.4a(a)?

No is the answer to the question posed in the title of this blog entry regarding expungement of a conviction for an infraction. One cannot claim that he or she has “led an honest and upright life” if he or she led much of that life behind bars because, as the appellate court sarcastically explained, it is no great achievement to do so when one is excluded from the opportunities to indulge vices, poor discipline and a criminal disposition if one is in jail or prison. To read more about this rather audacious appeal and the appellate court’s response, please click on the following link –

Youth Parole Hearing (PC 3051) Not for One-Strike Offender?

While Senate Bill 394, passed into law in 2018, extended those eligible for a Youth Offender Parole Hearing to those who committed their controlling offense at age 25 or younger, amending Penal Code § 3051 to cover more youthful offenders, § 3051 was also narrowed to exclude those sentenced at age 18 or older to life without the possibility of parole or those sentenced under the Three Strike Law because they had a prior conviction for a strike offense. To read more about Youth Offender Parole hearings, please click on the following link – http://

What is a Substantial Step for a Hobbs Act Robbery?

The Hobbs Act is a federal statute that makes it a crime to commit robbery, meaning the taking of the personal property of another without his or her consent and by unlawful force, or extortion, meaning the obtaining of property from another without his consent, induced by the wrongful act of actual or threatened force, violence or fear or “under color of official right.” It is often seen in bank robberies and robberies of Brinks trucks, as the following case describes. What is a substantial enough step necessary to commit the crime? To find out, please click on the following link –

Does Judge Have Power to Lower PC 12022.53 Gun Enhancement?

No is the answer to the question posed in the title to this log entry. A judge only has the power to strike the sentencing enhancement for use of a firearm in committing a crime, not reduce it, i.e., from ten years to five years. This question, however, was put to the test in the following appellate court ruling, summarized in the following article. To read the article, please click on the following link –

Are Criminal Threats Lesser-Included Offense of Stalking?

The casual reader of the rhetorical question posed as the title to this blog post may quacking answer “no, criminal threats involves communication, but stalking requires no communication with the alleged victim.” Such an observation overlooks the fact that stalking does require that defendant make a credible threat to the victim that causes him or her to reasonably fear for his or her safety. Therefore, since criminal threats requires defendant to make a threat to commit a crime that would cause great bodily injury to the victim or his immediate family, can committing a criminal threat be a lesser included offense of stalking? To find out, please click on the following link –

Equitable Tolling Denied for Filing Late Habeas Appeal.

The following article concerns a common trap among those seeking federal habeas review after the prisoner has exhausted state court relief. The petition for writ of habeas corpus must be filed in federal law within one year of when the judgment is final in state court, unless tolling applies. When can tolling extend that one year deadline? The following case explores when tolling is claimed for a late-filed federal petition for a writ of habeas corpus, but rejected. To read about what is permissible tolling and what is not, please click on the following link – Https://

Federal Armed Career Criminal Act – PC 273.5 Qualify?

If one was convicted of domestic violence under California law, does that conviction “count” toward being a violent felony under the federal Armed Career Criminal Act (ACCA)? Would it count as one of three prior violent felonies toward making defendant qualify for a mandatory fifteen year federal prison sentence under the ACCA? The answer may surprise you. To read more about he ACCA and a state court domestic violence conviction, please click on the following link –

Untimely Habeas Petition Due to Mental Impairment?

As the title of this blog post perhaps suggests, is there a certain amount of mental impairment a judge must find to permit a late petition for writ of habeas corpus? If so, what is the standard for tolling the one-year time limit for filing a federal writ after a state court petition for writ of habeas corpus is denied? What must petitioner show? Can ineffective assistance of counsel (IAC) apply? How late can the filing be? To read answers to these questions please click on the following link –