Evidence Code § 1221 sets forth the conditions for admitting a person’s silence as a reaction to a statement that would normally elicit a response if someone were innocent or not guilty of certain conduct that may amount to a crime or an element of a crime. However, this provision in the Evidence Code is often stretched by prosecutors to suggest a suspect is guilty of an offense when the lack of a response has an alternative, reasonable explanation. To exemplify this type of stretching that is improper, please click on the following link for a summary of a recent appellate court ruling – https://www.greghillassociates.com/when-is-evidence-of-silence-not-an-adoptive-admission.html
Month: March 2020
Mental Health Diversion After a Final Judgement?
The answer to the question posed in the title to this blog entry is no. Once a judgment is final, one cannot ask the judge to resentence that person to mental health diversion. When is a sentence final? Can one seek mental health diversion while an appeal of the underlying case is pending? What if there is a violation of probation and a suspended sentence is imposed? Does such sentencing “restart” the clock for a final sentence and allow a request for mental health diversion? To read about a recent Fourth Appellate Court ruling on this issue, please click on the following link.
Are Miranda Warnings Required with a Jailhouse Informant?
While it may seem like an unbelievably stupid argument, a defendant recently argued that his Fifth Amendment rights were violated by the government when it employed a jailhouse informant to elicit a confession from defendant. Nonetheless, the court of appeal approached the argument with respect and without sarcasm in its opinion, rejecting such an argument. Indeed, as framed, the argument made more sense than one might expect. To read a summary of the appellate court ruling, click on the following link.
Possession of Burglary Tools – What Intent Required?
The prosecution must prove that defendant had “burglary tools” with the intent “to use the tools for the felonious purpose of breaking and entering” a building to commit a felony therein. We find, in our experience, that this intent is often glossed over or simply assumed perhaps because our client was caught shoplifting. To read more about the crime of possession of burglary tools, please click on the following link.
Franklin Hearing – Tough Case for Silence at Sentencing
Our office gets one or two calls per week about Franklin Hearings and it seems as if many believe it is a resentencing hearing available for anyone who was convicted for a crime that allegedly took place when defendant was under age 26. We must tell the person that a Franklin Hearing is only a hearing to add to the court record for purposes of the defendant’s next parole hearing. A Franklin Hearing, moreover, is usually not a hearing in open court where family members get to see defendant and talk on his behalf. It is usually held in chambers. Lastly, if counsel for defendant was given an opportunity at sentencing to present mitigating evidence related to defendant’s youth, upbringing, immaturity or lack of intellectual development, a Franklin Hearing is not a second chance for this, as the link to the following case summary sadly explains.
In Kidnapping, Is Movement of Victim 190 Feet Enough?
Kidnapping is often thought of as typing someone up (against his or her will) and moving that person to a different city, county or even state. However, if can also be a violation of the law to move the person against his or her will a much shorter distance. How short of a distance suffices? To read a short article that summarizes a recent reported decision on this issue, please click on the following link.
What Is Driving with Expired Registration (VC § 5204(a))?
It is quite uncommon for police to ticket someone for driving with expired registration, is it is difficult for police to get close enough to a moving car being driven and to focus on the registration sticker on the car’s license plate. However, it does occur from time to time. What is is the punishment for such a violation? What are the defenses? To read a short article about driving with expired registration, please click on the following link.
What Is an Application for Commutation of a Sentence?
Most people understand that a commutation of a sentence is good, at least insofar as such an order reduces, ends or makes a person eligible for parole based on extraordinary circumstances or mitigating factors. What should such an application include and how is it done? To read a short article that answers these questions, please click on the following link.
Does Senate Bill 1391 Undermine Prop 57’s Intent?
As the reader of this blog posting may already know, Senate Bill 1391 eliminated the power of prosecutors to even seek a transfer hearing for a juvenile case when the juvenile was 14 or 15 years old when the crime allegedly took place. If this bill restricts the power of prosecutors that Prop 57 provided, is it constitutional? Is it an invalid law? To read a summary of a recent Fourth Appellate District Court opinion addressing this issue, please click on the following link.
In Lying-in-Wait Murder, What Degree for Aider & Abettor?
Most people would agree that the person who commits murder by lying in wait for the victim is a textbook case of first-degree murder. It is the epitome of premeditation and deliberation. However, what degree of murder is assigned to someone who aids or abets the person who lies in wait? Would that person be convicted of murder under a natural and probable consequences theory? Would it matter what the aider and abettor knew before the murder took place? To read a summary of a recent Fourth Appellate District Court ruling on this issue, please click on the following link.