Duenas Challenge to Fines is Eighth Amendment Issue?

As one may know, the Eighth Amendment prohibition against cruel and unusual punishment includes a ban on excessive fines. If one cannot pay certain fines because the person is in prison, can certain fines be excessive and thus an Eighth Amendment violation? What if the judge holds an ability-to-pay hearing and finds defendant is unable to pay certain fines, but imposes fees nonetheless. Are such fees excessive and thus an Eighth Amendment violation? To read a summary of a recent published opinion tackling this issue, please click on the following link.




How Long of a Sentence Violates the 8th Amendment?

Most people are familiar with the concept that the government cannot order cruel and unusual punishment, even if the person cannot explain that this is set forth in the Eighth Amendment to the U.S. Constitution to control the federal government and it applies to state governments, too, through the Eleventh Amendment. Yet we often hear in the news of a person being sentenced to fifty years in state prison. Is that cruel and unusual punishment and if not, what length of sentence is? To read about this concept, please click on the following link.




What Is a Dirk or Dagger under Penal Code § 16470?

What exactly is a “dirk or dagger?” Why is it illegal? What is the purpose of the law? Is it a pointed object like something one uses to move logs in a fireplace? If so, how “pointy” is enough? Is it a knife and if so, how long must it be? Does it have to be sharp enough to cut someone’s skin? How small of a knife is too small? To read a short article on what is a dirk or dagger, please click on the following link.



National Trial Lawyers Top 100

SB 1437 and Murder As Natural & Probable Consequences?

What is an an example of murder under a natural and probable consequences theory? What must a jury or judge find? If this is found, does Senate Bill 1437 apply? To read answers to these questions, please click on the following link to read a summary of a recent reported decision addressing each of these issues.




Before Imposing Fines and Fees, What Must a Judge Do?

The recent ruling in People v. Duenas has created quite a few challenges to court fines and fees, as the Sixth Appellate District found out in the case summarize below. We caution the reader of this summary that the appellate courts seem eager to attack Duenas, so it may not remain good law where you are, especially if the California Supreme Court weighs in on this hot topic. In the meantime, it is helpful to understand how other appellate districts are applying the Duenas ruling, so please click on the following link to read such a recent case summary.




What Evidence Sufficiently Shows Intent to Cause Great Bodily Injury?

“Cold-cocking” a person who never challenged defendant to a fight is one example of evidence that a judge or jury can consider as sufficient to show intent to cause great bodily injury. This is especially relevant if one “escapes” a finding by the jury that it was true defendant acted with intent to cause great bodily injury, but later seeks resentencing under Prop 36 (Penal Code § 1170.26(b))) on a third strike. To read a short summary of an appellate court decision wherein the appellate court had to evaluate intent to cause great bodily injury, please click on the following link.




If Judgement Isn’t Final Is Mental Health Diversion OK?

Yes is the answer to the question posed in the title to this blog post, however, a savvy attorney or defendant will be smart to acknowledge to the judge that he or she understands mental health diversion is intended as a pre-trial diversion program, not a post-conviction remedy is one loses at trial, but requests such diversion when the sentence is unexpectedly long, but before judgment is final. To read a summary of a reported decision that addresses this issue, please click on the following link.



10 Best 2015 Client Sat 10 Best Law Firms 2

Sixth Amendment Violation & Intent to Maintain Innocence

Is it ineffective assistance of counsel (IAC) for an attorney to concede the client’s role in a crime if the client tells the attorney that he wants to maintain a position that he is innocent of the crime? It certainly would seem so, a casual observer would think. However, to read a case wherein this argument was made by a defendant on appeal, please click on the following link.



10 Best 2015 Client Sat 350

Is a Stop and Frisk Improper When Anonymous Tip Involves a Person with a Gun?

Because of so many recent mass shootings in public places, especially schools, one may not think there is anything illegal about a police officer stopping and frisking someone that anonymous tipster reports as having a gun. But is such a tip, without any other information sufficient for a stop and frisk under our Constitution? To read a summary of a recent appellate court decision that tackled this issue, please click on the following link.



10 Best 2015 Client Sat

When Is a Sex Case Sentence Cruel and Unusual Punishment?

As the reader of this blog may already know, sentences on convictions for sex offenses generally run consecutive, not concurrent, often resulting in sentences of years in triple digits (far exceeding the lifespan of defendant). Is such a sentence cruel and unusual punishment? How does the court evaluate this? To read a summary of a recent published opinion where a sex case sentence was deemed cruel and unusual punishment, please click on the following link.



10 Best 2015-2016 2 Years Client Sat