Threatening a public official is a distinct crime, but similar to criminal threats (Penal Code § 422). What is the punishment? Is is a felony or a misdemeanor? If a felony, is it a strike? Who meets the definition of a public official? A police officer? What is a threat? What if the suspect really is just frustrated and venting to the public official? Is that a defense? Must defendant know that the recipient of the threat is a public official? What if the recipient of the threat is not scared by it? Does that matter or is the crime just committed by defendant’s intent to cause fear? To read more about this crime, please click on the following link – https://www.greghillassociates.com/what-is-threatening-a-public-official-penal-code-76.html
Month: June 2021
Felon in Possession of a Firearm; I am a Felon?
In 2019, in Rehaif v. United States, the U.S. Supreme Court held that a person could only be convicted of 18 U.S.C. § 922(g), being a felon in possession of a firearm, if defendant was made aware that he or she was prohibited from owning, possessing or having access to a firearm. This ruling led to a series of cases wherein in defendants claimed they did not know they were so banned, i.e., they did not know they were a felon. The following summary stretches the limits on such a claim and is good to review if one is facing such a case with this possible defense – https://www.greghillassociates.com/felon-in-possession-of-firearm-i-am-a-felon.html
Corpus Delicti Rule Allows Reversal in Sex Case.
When the only evidence of a crime is defendant’s admission, perhaps elicited after police pressure or even lies by police, defendant can move to exclude the statement from evidence and have the charge dismissed. To prove the crime, the state must present some type of independent evidence of the crime, however slight. To see how this rule, called the corpus delicti rule, is applied in a sex case, please click on the following link – https://www.greghillassociates.com/corpus-delicti-rule-allows-reversal-in-sex-case.html
SB 1393 – Certificate of Probable Cause Required?
If one is petitioning the court to vacate a five-year sentence enhancement imposed pursuant to a plea bargain including such a five-year term for a prior conviction for a serious felony, it would seem that Penal Code §§ 1237.5(a) and (b) would apply, requiring a certificate of probable cause first. This would prevent frivolous appeals after a no contest or guilty plea and promote judicial economy by screening out time-consuming petitions that lack valid legal grounds. However, the First Appellate District and the Supreme Court said no, in part because such a petition does not seek to vacate the plea, but only seeks to vacate part of the sentence. To read more about this ruling, please click on the following link – https://www.greghillassociates.com/sb-1393-certificate-of-probable-cause-required.html
Banks and Clark Analysis in Unarmed Assault, Robbery
The following summary of a California Supreme Court ruling reversing a finding by a jury that a person acted with reckless indifference to human life is rich in analysis of what facts support a finding of reckless indifference to human life. Citing to Tison v. Arizona, a 1987 U.S. Supreme Court case involving reckless indifference to human life, the California Supreme Court added meaning to the reckless indifference factors listed in Banks. To read more about the California Supreme Court ruling, please click on the following link – https://www.greghillassociates.com/banks-and-clark-analysis-in-unarmed-assault-robbery.html
Convicted Twice for Once Carrying a Concealed Firearm?
The titled to this blog entry suggests a clear violation of the constitutional bar against double jeopardy. After all, one cannot be convicted of two crimes if the crimes merely described the same conduct in different ways, which is particularly prevalent in the context of firearm laws. However, not all prosecutors or judges prevent this from happening. To read a summary of a case where this problem arose and went to the appellate court for corrective action, please click on the following link – https://www.greghillassociates.com/convicted-twice-for-once-carrying-concealed-firearm.html
Did SB 1437 Unconstitutionally Amend Proposition 7?
It is a popular, although incorrect, argument by the district attorney, in opposing a petition for resentencing under SB 1437, that the judge cannot resentence defendant because SB 1437 is an unconstitutional amendment to Proposition 7. The argument has some academic and intellectual allure, but is fundamentally incorrect. Nonetheless, many prosecutors persist in making this argument. To read how one appellate court handled this misguided argument, please click on the following link – https://www.greghillassociates.com/did-sb-1437-unconstitutionally-amend-proposition-7.html
SVP Act Allows Judge to Consider Hearsay from Expert?
At the probable cause hearing after a prosecutor files a commitment petition, based on a recommendation from the Department of Corrections and Rehabilitation, as well as the Director of State Hospitals, a superior court judge may consider the police report(s) and mental evaluations concerning defendant, which are hearsay, under an exception to the hearsay rule. To read more about the SVP commitment process, please click on the following link – https://www.greghillassociates.com/svp-act-allows-judge-to-consider-hearsay-from-expert.html
Pandering: Is “Procure” Unconstitutionally Vague?
Penal Code § 266i(a)(5) defines pandering. In the words of the definition, defendant must “procure” another person for purposes of prostitution. Caselaw has given further clarity to this crime, stating one is guilty of it if one acts with the specific intent or goal to “persuade, encourage or otherwise influence another person to become a prostitute.” No monetary gain is required, in contrast to the related offense of pimping. To read more about pandering, please click o the following link – https://www.greghillassociates.com/pandering-is-procure-unconstitutionally-vague.html
When Is a Certificate of Probable Cause Unnecessary?
As the reader of this blog may be well aware, one may not file an appeal of a conviction if one entered into the conviction by plea bargain unless the court first approves a certificate of probable cause for the appeal (Penal Code § 1237.5). This makes sense. However, what if the Secretary of the Department of Corrections and Rehabilitation notices an error in the sentence and recommends resentencing to correct the error? Is a certificate of probable cause then required? To read a summary of a recent opinion that addressed this issue, please click on the following link – https://www.greghillassociates.com/whens-a-certificate-of-probable-cause-unnecessary.html