First Degree Burglary, Uninhabited Detached Garage?

Entering an uninhabited, detached garage that is separated from the main house by a courtyard is not first degree residential burglary. The summary that follows is a good explanation of how and why this type of entry is not regarded as so serious as entering the main house inhabited by people. To read the summary, please click on the following link –

If Misdemeanor Suspect Flees, Warrantless Home Search OK?

Depending upon the facts and circumstances, it is possible for a police officer to pursue a fleeing misdemeanant suspect into his or her house without a warrant. Such facts and circumstances may create an exigent circumstance permitting such a warrantless entry. To read more about this recent U.S. Supreme Court ruling, please click on the following link –

SB 1437 / PC 1170.95, No Counsel, Is This Harmless Error?

In the context of a petition for resentencing under the new felony murder rule and, in abolishing the natural and probable consequences doctrine as a way to convict someone of murder, there have been many petitions filed that involved murders that clearly are not eligible for resentencing. When this is so, it is error by the court to summarily deny the petition without appointing counsel for petitioner? The Fifth Appellate District said no. To read a summary of this case, please click on the following link –

Does an Outstanding Warrant Make an Unlawful Detention OK?

Yes is the answer to the rhetorical question posed in the title to this blog posting. We find this “legal rationalization” the epitome of letting the ends justify the means, which we find deplorable in a legal context, particularly when the Fourth Amendment is at issue. To read an example with facts what demonstrate how an illegal detention can be “sanitized” by an officer’s discovery of the suspect having an outstanding warrant, please click on the following link –

Incompetent to Stand Trial Have Right to Timely Services

Those who are Incompetent to Stand Trial (IST) often languish in a county jail before being transferred to a facility for further treatment to regain competency or at least, receive treatment to promote this, either at a state hospital or another state facility. Such defendants are often the last to receive attention for practical reasons, too, as there may not be an open bed for him or her in the treatment facility, or the inmate is simply too dangerous to transport without extensive safety precautions. However, that person cannot languish indefinitely and must be transferred within 28 days, with certain exceptions, as the following summary explains. To read this summary, please click on the following link –

Expungement if One Went to Prison – What’s § 1203.42?

If one went to state prison for an offense that has since been reduced to a misdemeanor by operation of law, i.e., through Proposition 47, that person is eligible to have that conviction “expunged” under Penal Code § 1203.42, provided that person also is not facing an open case, is not in prison or jail, is not on probation in any other case and is not on parole or post-release community supervision (PRCS). To read more about this new law and how one can file such a petition, please click on the following link –

When is a Criminal Protective Order Overbroad or Void?

A fundamental requirement of any protective order is that it be constitutional on its face and properly served upon the person to be restrained. The order must then be obeyed. However, it is common for a person restrained by such an order to contest whether certain conditions of the order are valid (after allegedly violating it), as the following case explains. Such a defense is a collateral attack, which is not allowed once the order is served and if it is constitutional on its face. To read more about a collateral attack on such an order, please click on the following link –

Gang Enhancement Vacated – Expert Opinion Speculative

Appellate courts are becoming increasingly aware that trial courts often impose sentencing enhancements for gang members for just committing any crime, but that this is improper unless there is evidence that the crime was committed to promote or support a gang. The following summary from the Fourth Appellate District exemplifies this trend, which we greatly appreciate. To read this summary, please click on the following link –

Domestic Violence: What is Testimonial Hearsay? Admissible?

Is the term testimonial hearsay an oxymoron? How can something be legally testimonial in nature, but hearsay? The U.S. Supreme Court has stated it includes, but it not limited to, prior testimony at a preliminary hearing, testimony before a grand jury, testimony at a prior trial and answers to a police interrogation when there is no ongoing emergency situation. To read more about this term, please click on the following link –

What if DV Victim Unavailable to Testify at Trial?

If a victim of domestic violence dies prior to trial or is otherwise legally unavailable to testify, trial may still proceed and defendant may still be convicted under certain circumstances. There is no legal requirement, as some people have asked us, if the judge must dismiss a case if the victim is unavailable to testify. The prosecutor, in fact, can always take the case to trial, but his or her ability to secure a conviction may decrease without the victim available to testify at trial, depending upon the facts. To read more about this situation, please click on the following link –