Probation Search: May Police Search Under Car Seat?

Yes is the answer to the question posed in the title to this blog entry, but the reasoning for this is important to understand, at it arises from the Fourth Amendment waiver that a parolee commonly agrees to as a condition of parole. This principal is then extended to probationers, the Third Appellate District reasoned, in the following case. To read about the facts of the case and why the court regarded such an extension reasonable, please click on the following link –

Does McCoy v. Louisiana Apply Retroactively?

McCoy v. Louisiana is U.S. Supreme Court case holding that it is violation of the Sixth Amendment right to effective counsel if counsel concedes guilt after defendant clearly advises counsel that he or she wishes to maintain innocence. This is obviously a difficult duty to fulfill when the facts overwhelmingly establish defendant’s guilt. However, is this opinion retroactive to cases decided prior to McCoy? To read the answer and explanation, please click on the following link –

Resisting Arrest (P.C. 148(a)(1)) – Knowledge Required

The following summary of a recent Sixth Appellate District ruling explains that defendant does not need to have knowledge that the person he is resisting, evading or delaying is a police officer. Defendant can be convicted if the jury finds defendant “had or should have had” knowledge, meaning defendant knew or should have known that the person he was resisting, evading or delaying was a police officer. To read more about this crime and its requirements (elements), please click on the following link –

May a Judge Terminate Parole under Penal Code § 1203.2(b)(1)?

May a judge terminate parole for a defendant? The answer may surprise the reader, but the answer is no. To read why this is so, please click on the following link, but keep in mind that the decision is not entirely certified for publication, so it is prudent to not cite it if anyone is to rely upon this decision in any way. To read this article, please click on the following link –

Guidelines for Prosecutors That Defense Attorneys Love

It may come as a shock, although a welcome surprise, that prosecutors have certain ethical obligations and there are written guidelines that prosecutors must follow. The following article lists six such guidelines that restrict prosecutors, although telling prosecutors that such obligations are being broken is something a person must handle with care. To read such obligations, please click on the following link –

“Kill Zone” Theory Jury Instruction Wrong, Reversal

The following article describes a case wherein the “kill zone” theory of murder or attempted murder was argued, but then the jury instruction inaccurately told the jury how to find defendant criminally liable based on the evidence. Defense attorneys should applaud this ruling, as the “kill zone” theory is a difficult argument to handle. To read more about this ruling restricting the “kill zone” theory, please click on the following link –

Improper Firearms Expert Testimony = Partial Reversal

The following summary of a recent Sixth Appellate District court decision exemplifies the adage that someone should never give up. Defense counsel objected to the admission of certain expert testimony about bullet casings as not meeting the Kelley-Frye standard for admissibility of scientific evidence, but the trial court judge overruled the objection and allowed admission of certain expert testimony. Defendant was then convicted. On appeal, the appellate court reversed, holding that the trial court judge failed to perform her gatekeeping function on such evidence. To read more about this case, please click on the following link –

Parole Revocation: What Burden of Proof Applies?

If one is on parole and finds himself or herself facing a parole revocation hearing, it can be confusing for many reasons. First and foremost, the burden of proof the court must apply to the evidence varies by the duration of the possible punishment. To read more about this and which burden of proof will apply, please click on the following link –

Sealing Juvenile Records Under WIC § 786(e)?

In seeking to seal juvenile records, first and foremost one needs to determine if the person was adjudicated a ward of the court under Welfare & Institutions Code (WIC) § 602. If one was found to be a ward of the court, then sealing under WIC § 786(e) cannot proceed. To read a case, which involves a somewhat common fact pattern, please click on the following link –

What is the New Judicial Diversion Law for 2021?

The new judicial diversion law, effective January 1, 2021, gives the judge discretion to suspend proceedings in any misdemeanor (except domestic violence (both 273.5 and 243(e)(1), stalking (646.9) and any misdemeanor where defendant, if convicted, would be required to register as a sex offender under Penal Code § 290), and order the defendant to a program of judicial diversion for up to two years. Now, after eleven months of filing motions seeking judicial diversion in such cases, we have some experience and working knowledge about the new law. To read more about the new law, please click on the following link –