Almost every day, we speak with people who believe expungement (Penal Code § 1203.4) removes all record of a case from one’s file. In clarifying that this is not so, we often describe a petition to seal and destroy a police report or court file (Penal Code § 851.91), which does remove mention of a case filing from one’s record. However, if one is eligible for expungement, that person is ineligible for sealing and destroying. To read more about the differences between expungement and sealing, please click on the following link – https://www.greghillassociates.com/what-is-the-difference-between-expungement-and-sealing.html
Month: September 2020
Are Miranda Warnings Critical in a DUI? Shoplifting?
The answer to the question posed in the title to this blog entry is “most of the time, no.” Why is this so? Well, what one says in a traffic stop usually will not render the officer’s observations or one’s blood alcohol content (BAC) any different. Likewise, in a shoplifting case, what one says will not usually establish payment for an item loss prevention finds someone holding outside a store. Nonetheless, in certain situations, what one says can establish an affirmative defense to such charges. To read more about when Miranda warnings are important, please click on the following link – https://www.greghillassociates.com/are-miranda-warnings-critical-in-a-dui-shoplifting.html
What is Elder Abuse (Penal Code 368)? Defenses? Punishment?
Elder abuse can involve many different kinds of conduct, from physical attacks or neglect, to emotional abuse, to financial manipulation or fraud of a person over age 65. The sad part is that the defendant is usually a family member the older person is supposed to trust and rely upon. The crime can be charged as a felony or a misdemeanor, depending upon the criminal record of the defendant. To read more about elder abuse, please click on the following link – https://www.greghillassociates.com/what-is-elder-abuse-penal-code-368-defenses-punishment.html
SB 1437 Precursor – Habeas Writ Under Banks & Clark?
While this advice is contrary to our financial interest, we must comment that it is a wise choice to first file a petition for a writ of habeas corpus under Banks and Clark because counsel if provided free of charge in a habeas proceeding, rather than first filing a petition for resentencing under Penal Code § 1170.95 (SB 1437) because counsel is not free or appointed for a 1170.95 petition. To read more about the issues involved in filing one petition instead of another, please click on the following link – https://www.greghillassociates.com/sb-1437-precursor-habeas-writ-under-banks-clark.html
How Does an SB 1437 Hearing Proceed? What Happens?
After one files a Petition for Resentencing under Penal Code § 1170.95, what exactly happens? Does the judge simply rule on it? Is there a requirement that the judge determine petitioner has made a prima facie showing that he or she is entitled to relief? Is the prosecution expected to file an opposition within a certain amount of time or a certain number of days before the hearing? What is the standard of proof that the prosecution must meet? To read about this resentencing request procedure, please click on the following link – https://www.greghillassociates.com/how-does-an-sb-1437-hearing-proceed-what-happens.html
What Does SB 485 Do for Driver’s License Suspensions?
Senate Bill 485 changed the law on which convictions a judge must report to the DMV for purposes of suspending a defendant’s driver’s license. No longer is a driver’s license suspended, for example, after a conviction for vandalism or solicitation of prostitution. There are other convictions that are also now exempt from mandatory reporting by a judge to the DMV, which is good. To read the full list, as a well as a reminder of what the law does not change for reporting to the DMV, please click on the following link – https://www.greghillassociates.com/what-does-sb-485-do-for-drivers-license-suspensions.html
Does SB 1437 Apply to Voluntary Manslaughter if a Plea?
No is the answer to whether Senate Bill 1437 (Penal Code § 1170.95) applies to voluntary manslaughter, even if one was originally charged with first-degree or second-degree murder. The following summary of a recent reported decision explains why the seemingly plausible argument that SB 1437 does apply was rejected. To read the article, please click on the following link – https://www.greghillassociates.com/does-sb-1437-apply-to-voluntary-manslaughter-if-a-plea.html
When Can a Sexually Violent Predator (SVP) Be Released?
The media may create public hysteria over news that a sexually violent predator is being released to live in a certain city. The media may support such anxiety by describing the underlying conviction or convictions. However, the release is usually from a prison to a civil commitment, rather than into the general public (to possibly re-offend). What procedures are followed in such a release? When can the person be released from a cviil commitment to the general public? To read a short case summary on this issue, please click on the following link – https://www.greghillassociates.com/when-can-a-sexually-violent-predator-svp-be-released.html
Is it Enough to Object that Sentence Greater Than Necessary?
When a judge announces his ruling on the appropriate sentence in court, is there a particular wording counsel must use to object to the sentence as being unreasonable under the federal sentencing guidelines? This issue was addressed recently by the U.S. Supreme Court, which held that there are no magic words that must be uttered, however, counsel forfeits his or her client’s right to challenge a sentence as being greater than necessary unless counsel lets the judge know that he believes the sentence is greater than necessary for defendant. To read how this must be done, please click on the following link – https://www.greghillassociates.com/is-it-enough-to-object-that-sentence-greater-than-necessary.html
Federal Armed Career Criminal Act Serious Drug Offense
It is always a bit unclear how and if the federal Armed Career Criminal Act (ACCA) will “count” certain state court convictions as qualifying for the minimum fifteen year federal prison sentence under the ACCA. For example, is possession of a controlled substance with intent to sell a “serious drug offense?” In doing this, a federal court will take a “categorical approach” to the prior state court offense, looking to the elements of the state court crime, rather than the label given to the crime. To read more about how the categorical approach is applied to prior state court offenses under the ACCA, please click on the following link – https://www.greghillassociates.com/federal-armed-career-criminal-act-serious-drug-offense.html