Can One File a 1473.7 Motion While in Custody?

One may file a Motion to Vacate a conviction under Penal Code § 1473.7 while in custody (which includes being in jail, prison, on parole, or on probation – or any form of supervised release), but that custody cannot be for the conviction at issue in the motion. To read an example of a recent appellate court ruling where this was adjudicated, please click on the following link –

SVP: Admission of Hearsay, Non Predicate Offenses

In a Penal Code § 6022 hearing for the judge to decide if an SVP commitment is proper, similar to a preliminary hearing in a traditional felony, the judge will hear from witnesses, particularly psychological experts, concerning defendant’s mental state and likelihood to reoffend if released. In the following case, a medical expert for the State of California testified to the contents of a police report from another sex offense that defendant was not punished for and for which no foundation had been laid. Defendant objected and the California Supreme Court, on appeal, agreed that such testimony was inadmissible. To read more about this ruling, which will affect all 6022 SVP hearings in the future, please click on the following link –

Firearm Admissible Based on Bulge in Pocket?

Can a police officer conduct a search of someone if detained as a passenger in a traffic stop and if the police officer sees a bulge in the passenger’s pocket that looks like a gun? Yes is the answer and not pursuant to Terry v. Ohio, wherein the officer may conduct such a search for officer safety is based upon an articulable suspicion. In the following case, the California Supreme Court said such a search is legal if the officers believe any passenger is armed and dangerous. To read more about this case originating out of Compton, please click on the following link –

Penal Code § 3000.01 Can Limit Parole to Two Years

In 2020, Penal Code § 3000.01 became effective, changing the maximum term of parole for most offenders to two years, with certain exceptions, most notably for sex offenses and other extremely serious crimes. In Senate Bill 1437, passed prior to 2020, Penal Code § 1170.95(g) stated that a judge could place a person resentenced under 1437 on parole for up to three years. In the following case summary, a defendant was resentenced in 2019 under 1437 and then placed on parole for three years. In 2000, he challenged the parole period as being illegal under 3000.01 and the Second Appellate District agreed, ordering that parole be shortened to two years. To read more about the case, please click on the following link –

Example of When Kill Zone Jury Instruction is Proper

While the California Supreme Court ruling on Canizales imposed limits on when a kill zone jury instruction may be given to a jury, it can still be given when the facts support such a theory. The following case presents such facts and the kill zone jury instruction was proper. To read a short summary about the case please click on the following link –

What is Assembly Bill (AB) 1259 for Penal Code § 1437.7?

Assembly Bill (AB) 1259 is a long-overdue expansion of the right to file a motion to vacate a conviction for a conviction with adverse immigration consequences reached after trial. Before AB 1259, one could only file a motion to vacate under Penal Code 1473.7(a)(1) for a conviction following a plea bargain. AB 1259 allows the filing after a verdict at trial. To read more about AB 1259, please click on the following link –

Unlawful Possession of a Firearm under § 922(g)(4)

A state court finding of mental incompetency to stand trial qualifies as “being adjudicated a mental incompetent” to qualify for the firearm ban under 18 U.S.C. § 922(g)(4) even though the state court finding may not have been in a contested hearing. To read more about this ruling, please click on the following link –

What is Judicial Notice? Limits? Debatable Uses?

Judicial notice is a formal way of having a judge officially accept as true some fact (i.e., December is the last month in the calendar year, sunrise is at 7:14 a.m. in Los Angeles on November 2, etc.) without having to bring an expert to court to testify to this or introduce documentary evidence to prove this. However, there are limits to seeking judicial notice. To read about it, please click on the following link to read a short article –

May Validly Collected DNA Be Used in Another Crime?

Validly collected DNA may be used for identification of a suspect in future crimes after the crime in which the DNA was collected. This use is like the use of a booking photo or fingerprints and does not violate the Fourth Amendment. To read a summary of the Third Appellate District ruling holding this, please click on the following link –

What is Substantial Evidence of Mental Incompetence?

Many defendants nowadays are defiant of the legal process and disrespectful to judges, prosecutors and their own attorneys. Such defiance, or even aloofness, is distinct from being incompetent to stand trial or assist in their defense. However, when a psychologist examines defendant three times and writes a fifteen-page, single-spaced report opining that defendant is incompetent, a judge must initiate 1368 proceedings, as the following summary explains. To read a short summary of the California Supreme Court ruling, please click on the following link –