To prove defendant had illegal possession of an assault weapon, a violation of Penal Code § 30605, the prosecution must prove that defendant owned, possessed or had control over a firearm (pistol, rifle, or shotgun) that can be fired in automatic or semiautomatic mode with capacity to shoot over ten rounds and be equipped with a flash suppressor, folding stock or grenade launcher and be less than 30 inches in length. To read more about this crime, please click on the following link – https://www.greghillassociates.com/what-is-illegal-possession-of-an-assault-weapon-pc-30605.html.
If one is accused of felony resisting arrest (Penal Code § 69), the prosecution must show that defendant knew another person was an executive officer (i.e. a police officer or sheriff) of the state, county or city and that in resisting, delaying or obstructing his or her arrest, he or she caused physical injury to the officer. To read a summary of a local case wherein this charge was litigated, please click on the following link – https://www.greghillassociates.com/what-must-the-prosecution-prove-to-show-violation-of-pc 69.html.
Under the Federal Armed Career Criminal Act, there are certain mandatory sentence enhancements if a defendant has suffered three or more prior violent felony convictions. How a violent felony is defined under federal law and how a prior state conviction is defined becomes very important in evaluating if certain prior convictions “count” as violent felonies. To read a summary of how the Sixth Circuit ruled on a Michigan conviction and then how the U.S. Supreme Court evaluated the decision, please click on the following link – https://www.greghillassociates.com/federal-armed-career-criminal-act-out-of-state-convictions.html.
If you have ever been to federal court for a criminal case, you will notice that all federal prisoners are brought to court in shackles. This is unlike state court, where only certain prisoners are brought into court in shackles. The family and loved ones in federal court often ask us if that is necessary, especially if the person in custody has no history of violence. More importantly, one must wonder if this policy is constitutional, as it certainly suggests that the person has a disposition to escape and most likely committed the offense alleged. To read a summary of a recent case addressing this issue, please click on the following link – https://www.greghillassociates.com/is-federal-court-routine-policy-of-shackling-constitutional.html
Under Batson v. Kentucky, a prosecutor may not exercise its peremptory strikes in a racially discriminatory manner. The case of Curtis Giovanni Flowers in Mississippi involving a 1996 murder became a textbook example of how Batson was applied and analyzed as the prosecutor excluded all Black jurors in reaching a verdict against Flowers, who is Black, and a death sentence. Yet that first verdict was only the beginning in a series of appeals and retrials, ultimately culminating in a 2020 opinion on the issue by the U.S. Supreme Court. To read a summary of the U.S. Supreme Court’s most recent position on racial bias in jury selection, please click on the following link – https://www.greghillassociates.com/latest-u-s-supreme-court-ruling-on-racism-in-picking-a-jury.html
A Motion to Vacate a Plea under Penal Code § 1473.7 for failure to receive proper warnings about the immigration consequences of a conviction is never quite the “slam dunk” many expect. In the reported decision summarized in the link that follows, defendant signed a form prior to entering her plea. The form explicitly warned her about deportation, denial of naturalization and exclusion from admission to the U.S. as a consequence of her plea. She still filed her 1473.7 motion to vacate her plea. To read how the court ruled on this, please click on the following link – https://www.greghillassociates.com/motion-to-vacate-plea-under-pc-1473-7-properly-denied.html
In a Fourth Appellate District ruling that seems to agree that Penal Code § 1001.36, as originally codified, could apply to registered sex offenders, at least in an academic sense, People v. Rennard Cawkwell is an interesting case for a very narrow class of cases active before the legislative amendments to 1001.36 excluded sex offenses from its provisions. The facts are repulsive, but his arguments about retroactive applicability are clever, although ultimately rejected by the court of appeal. To read about his case, click on the following link – https://www.greghillassociates.com/is-the-sex-offense-exception-to-mental-health-diversion-ok.html
In the post-Prop 64 era, one may answer the rhetorical question posed above with a resounding ‘No, having marijuana is not illegal.” This is certainly a true statement, subject to certain exceptions. What if the police officer, in performing a pat down search of the individual (for the officer’s safety, allegedly), finds a large wad of cash in the driver’s pocket? To read how the San Diego Superior Court and the Fourth Appellate District Court evaluated the officer’s subsequent search of the car (which found a firearm, 56 grams of cocaine, more cash and digital scales), please click on the following link – https://www.greghillassociates.com/is-probable-cause-to-search-supported-by-driver-having-pot.html
As anyone who has been to a DMV admin per se hearing for a DUI is most likely aware, the DMV relies heavily upon Evidence Code § 1280, often incorrectly, or just “smuggles in” the police report, the DS-367 and maybe even a lab report under Government Code § 11513 even when foundation is a valid objection (or that the report is double hearsay). To read why this is so, the following short article explains the Official Records Hearsay exception and what must be established to allow the exception to apply – https://www.greghillassociates.com/what-is-the-official-records-hearsay-exception-ec-1280.html
No, is the answer to the rhetorical question posed in the title to this blog post. Pandering merely requires the prosecution to prove that defendant persuaded or encouraged a person to enter the prostitution trade when that person otherwise was not so inclined. In a novel scheme to have sex with various women, a man was convicted of human trafficking (Penal Code § 236.1(c)(2)) on a pandering theory. To read a short summary of this appellate court ruling, please click on the following link – https://www.greghillassociates.com/does-pandering-pc-266i-a-2-require-trying-to-find-john.html