Double Jeopardy if Cases in Federal and State Court?

The answer to the question posed in the title is no, but to understand why this is so, one should understand the doctrine of dual sovereignty and the precise definition of double jeopardy. The following summary of a federal and state court case for distinctly different crimes exemplifies why double jeopardy claims often fail in this situation. To read more about these two cases, please click on the following link –

Juvenile Court Improperly Denies Motion to Seal.

The following blog entry is a roadmap of sorts for anyone with a juvenile adjudication for a strike offense who wishes to have it sealed and destroyed. To do so, one should use a step by step method that this summary of a recent appellate ruling suggests. To read more about this strategy, please click on the following link –

Conviction for P.C. 245(a)(1) and (a)(4) in Same Case?

No is the answer to the rhetorical question posed in the title to this blog entry. In Orange County, a man was convicted on not only 245(a)(1) and 245(a)(4), but the jury found true the great bodily injury allegation which carried with it a three-year sentence enhancement. The convicted man appealed the convictions to the Fourth Appellate District, arguing that such convictions violated the double jeopardy provisions underlying Penal Code § 954. The Fourth Appellate District agreed. To read about this ruling, please click on the following link –

When Does Successive Petition Bar Habeas Petition?

As the reader of this blog may know, there are some folks in prison who have filed far more than just one petition for a writ of habeas corpus. Is this allowed? If not allowed, it is simply tolerated because, after all, what can a judge really do to punish someone who is already in prison? The law on this issue is that to submit more than one petition for a writ of habeas corpus, one must have permission from the court if it is on the same issue. To read more about this issue, please click on the following link –

Sex Offender Excluded from Prop 57 Parole Eligibility?

Nonviolent sex offenders cannot be excluded from early parole consideration under Prop 57, a recent Third Appellate District opinion states. The California Department of Corrections and Rehabilitation (CDCR) had excluded anyone who was a 290 registrant or would be required to so register under Penal Code 290, but this was challenged and found improper. The CDCR then appealed and lost. To read a short summary of this ruling, please click on the following link –

Is Failure to Testify Overt Act, Accessory After Fact?

If one is subpoenaed to court or is a co-defendant with others in a case, can asserting one’s Fifth Amendment right against self-incrimination, even if ordered to testify by a judge, be considered acting as an accessory after the fact (i.e. an attempt to help another succeed in the commission of the crime)? Can refusing to testify, when ordered to testify, be not only contempt, but the crime of being an accessory after the fact – to murder? The answer is yes, as the following summary of a reported decision from Los Angeles exemplifies –

When is Enhanced Sentence Proper Under PC 647.6(c)(2)?

Penal Code § 647.6(c)(2) prohibits annoying or molesting a child under 18. In sentencing someone under this section, the presumed sentence is a minimum prison term or 16 month, a mid-term sentence of two years and a high-term sentence of three years unless the individual has certain a prior conviction that allow a low term sentence of two years, a mid-term sentence of four years and a maximum sentence of six years. In the case summarize below, the defendant did have such a prior conviction, permitting the trial court to sentence defendant to four years, which defendant appealed, arguing that the statute was misinterpreted by the judge. The summary thus serves as a good tutorial on how and when an enhanced sentence is allowed. To read more about the appeal, please click on the following link –

Is Relief Under SB1437 Automatic? Must One Ask for It?

Resentencing under Senate Bill 1437 is not automatic. One who believes he or she is eligible must file a petition for resentencing which is then reviewed by a judge and if a “prima facie” case is established, then counsel, if not retained already by defendant, is appointed if requested. The prosecution can then file an opposition to the resentencing petition, to which defendant can file a reply to respond to the prosecution’s opposition. To read more about resentencing under the new felony murder rule, please click on the following link –

Requirements for Murder Special Circumstance Sentence?

In the context of many appellate court decision recently reviewing a ruling (often a denial) of a petition for resentencing under Penal Code § 1170.95 (Senate Bill 1437), a defendant may have been found guilty of murder with a special circumstance finding by the jury. What is a special circumstance finding? What must the jury find? Is such a finding for an aider and abetter possible and if so, is that disqualifying from 1437 resentencing? To read more about murder special circumstances, please click on the following link –

Mental Health Diversion Retroactivity Not Intended

It is not uncommon for someone to call us about a son or daughter who is currently in prison and to tell us that their child’s attorney never asked the judge to consider the mental illness of the child and that had the judge or prosecutor fully known about the mental illness or condition, there would have been a very different outcome. We then ask when their loved one went to prison and it is six years earlier. Is mental health diversion retroactive in such a case? To read a case summary that addresses this issue, please click on the following link –