Death Sentence Reversal Due to Juror Exclusion?

In a capital case, the wrongful exclusion of even one juror for his or her opinions about the death penalty can result in reversal of the death penalty although the finding of guilt on the underlying crime or crimes is not reversed. To see how this operates in an actual case (the following summary is one from the Long Beach Superior Court), click on the following link –

Death Sentence Reversal & Defendant’s Mental Illness

The Eighth Amendment to the U.S. Constitution bans cruel and unusual punishment, which has been interpreted to bar a death sentence for one who suffers from mental illness to the degree that he or she does not understand the nature or consequences of the underlying crime leading to a death sentence. This is a rare situation, but the issue can arise and the following link summarizes one such case –

Can Rap Lyrics be Introduced to Prove Crime Happened?

Rap lyrics and a rap video cannot be introduced into evidence to prove a crime took place, as the following case summary explains. The probative value of such evidence was outweighed by the undue prejudice of such evidence. To read more about this case, please click on the following link –

SB 136, Abolishing One-Year Prison Prior Enhancement?

Senate Bill 136 has made Penal Code § 667.5(b) history, retroactively reducing prison sentences by at least one year for anyone with one or more one-year enhancements for a prior prison term. The only person disqualified from the benefit of this new law is someone who has previously served a sentence for a sexually violent offense as defined under Welfare & Institutions Code § 6600(b). Otherwise, unlike other changes to the sentencing structure, this change is not contingent upon defendant showing he is somehow eligible, i.e. that removing the one-year enhancement will not impose a public safety risk, etc. The CDCR is supposed to adjust the sentences of those with this sentence enhancement. To read more about this new law, please click on the following link –

When Can a Missing Witness’ Prior Testimony be Admissible?

In the context of a domestic violence case, it is common for our client to ask what will happen to his or her case if the victim does not come to court. Our answer usually starts with “It matters if the victim already testified and was subject to cross-examination.” Why is this the primary or first consideration? How is a witness or victim determined to be unavailable? What is required? To read answers to these questions, please click on the following link –

Can a Defendant’s Inability to Pay Bar Restitution Order?

Most people, in consideration of the question posed in the title to this blog post, would answer no, explaining that no one should avoid paying restitution if he or she is poor because otherwise, that person would be afforded preferential treatment at the victim’s expense no less. What if the “restitution” ordered is $1,500 for a victimless crime, such as a sex offender’s failure to register? This order was challenged at the appellate court level. To read how the appellate court ruled, please click on the following link –

How is a Vehicle Defined under Vehicle Code § 10851?

If someone joyrides a golf cart, is such conduct a violation of Vehicle Code § 10851? What if it is a waterski? What if it is a snowmobile? A forklift? What if someone takes a small vehicle inside an airport terminal that is used to transport the elderly and infirm between gates? Are all of these vehicles, if joyrided, under the scope of 10851? To read a summary of a recent reported decision that sets forth general guidelines on this issue, please click on the following link –

Senate Bill 1437 Does Not Apply to Attempted Murder.

As of June 1, 2020, a petition for resentencing under Penal Code § 1170.95 (Senate Bill 1437) does not apply to a sentence for attempted murder. In other words, the new felony murder rule does not extend to attempted murder. To read the most recent appellate court ruling on this issue, please click on the following link –

Can Penal Code § 12022.7 Apply to One Who Supplies Drugs?

Someone who supplies drugs to another person and the other person voluntarily ingests the drugs, the supplier can be punished with a sentence enhancement of three years for causing great bodily injury under Penal Code § 12022.7. It merits mention that 12022.7 cannot be a sentence enhancement in murder, arson or manslaughter, but no other crime is excluded, so it may be applied to furnishing a controlled substance to a minor (Health & Safety Code § 11353). To read a short summary of the opinion holding this, please click on the following link –

How Long is Too Long for Past Recollection Recorded?

Can someone in 2013 describe in writing what happened in a 2007 murder and then that writing from 2013 can be used to convict someone in 2018 if the witness is unavailable for trial? What should the judge evaluate in deciding whether such a six-year old memory is reliable as a past recollection recorded so it can be read to the jury in 2018? This interesting issue came up in a recent Fourth Appellate Court ruling. To read about this analysis, please click on the following link –