Immigration: Removal for First Degree Residential Burglary?

Under federal immigration law, a conviction for first degree residential burglary is a crime involving a high risk of danger to others, so it is a crime involving moral turpitude and, depending upon the sentencing laws of the state where the conviction occurred, may also be an aggravated felony (as it is in California). The U.S. Ninth Circuit Court of Appeals, in reaching this ruling, also discussed commercial burglary and why it may not be a crime involving moral turpitude, depending upon how burglary is defined by the state. To read the court’s discussion, which is helpful toward understanding the nuances of first-degree and second-degree burglary, as well as what is a crime involving moral turpitude, please click on the following link –

Is SB 1437 Barred if Plea to Malice Aforethought Murder?

No is the counterintuitive answer to the question posed in the title to this blog posting. In a ruling from the First Appellate District that is refreshingly thorough and rigorous, the court explained that one could stipulate to the murder being committed with malice aforethought, but under facts which no longer constitute malice under the new felony murder rule. Therefore, relief under SB 1437 and Penal Code § 1170.95 is not necessarily barred and a closer look must be undertaken by the court. To read more about this opinion, please click on the following link

Is an 11 Year Delay in SVP Trial a Due Process Violation?

No is the answer to the question posed in the title to this blog entry. However, in reaching this ruling, the Second Appellate District suggested that under other circumstances, such a delay indeed may be a due process violation. In the particular case brought to the court’s attention, the court found that the petitioner created many of the delays for his own benefit and agreed to waive time repeatedly, so it was a bit disingenuous to later claim a due process violation. To read more about this situation, please click on the following link –

Penal Code 632.7, Unlawfully Recording Communications

The law on unlawfully recording a communication, such as a phone call, was recently addressed by the California Supreme Court in an opinion anyone facing a civil restraining order or a stalking charge should read. Most importantly, we believe is the California Supreme Court’s holding that consent to being recorded cannot be implied or assumed in any context (we caution that in talking to police, one always ought to assume the call is being recorded). For more information about this area of the law, please click on the following link –

Is Battery a Lesser-Included Offense of Oral Copulation?

In the following article, we summarize a recent Fourth Appellate District Court case wherein a defendant was convicted of multiple sex offenses and appealed the convictions, arguing judicial error in not instructing the jury that battery would be a lesser-included offense of each sex offense involving a harmful or offensive touching. The appeals court agreed, but only on the oral copulation of an unconscious person conviction. To read more about the judge’s duty to instruct on lesser-included offenses, please click on the following link –

Old Age Alone and Sexually Violent Predator Commitment

Most people slow down with age, especially at age 74. However, “slowing down” does not mean a person, previously adjudicated as a sexually violent predator, necessarily loses sexual deviancy and no longer presents a danger to public safety in less physically demanding ways. In fact, the older man may be just as interested in such conduct. The following summary of a recent Second Appellate District case explains why old age alone does not bar a continuing SVP civil commitment to someone, even if age 74 –

Conditioning Bail on Ability to Pay Is Unconstitutional

In the landmark California Supreme Court case of In re Kenneth Humphrey, the California Supreme Court held that conditioning bail solely upon a defendant’s ability to pay a bail amount was unconstitutional. Instead, a court setting bail must consider alternative methods of ensuring public safety such as electronic monitoring, classes, drug and alcohol counseling, etc. Only in unusual cases, shown by clear and convincing evidence of public safety danger, may pretrial confinement be proper. To read more about this new legal standard for setting bail, please click on the following link –

Mental Health Diversion & Unreasonable Risk of Public Danger

When a judge considers a Motion for Mental Health Diversion, there are six basic issues to evaluate. One of those is whether defendant will pose an unreasonable risk of danger to the public if defendant is permitted to remain out of custody to receive mental health counseling. The following summary of a recent Torrance Superior Court case exemplifies what constitutes an unreasonable risk of danger to public safety. It is a risk that the person will commit a “Super Strike,” not just a misdemeanor or even a non-serious, non-violent felony. To read more about this issue, please click on the following link –

When’s an Attempted DUI Considered an Attempted Felony DUI?

In more than 23 years of practice, I have never defended anyone accused of attempted DUI and I have never heard of anyone charged with attempted DUI. I have heard judges even say, “There is no such thing as attempted DUI.” The following summary shows those judges were wrong and that one can be prosecuted for attempted DUI. To read more about this rare crime, please click on the following link –

Opening the Door on Character Evidence (Evidence Code 1102(a))?

As the reader of this blog may be aware, character evidence is generally inadmissible to prove conduct on a specific instance. It can also be inadmissible, especially if negative, as unduly prejudicial and having little probative value. However, the party against whom such evidence is sought to be introduced can “open the door” on such evidence and thereby impliedly consent to its introduction or waive any objection to its introduction. How does this happen? To read about this, please click on the following link –