Improper Upper Term Sentence in Long Beach Courthouse

Under Senate Bill 567, an upper term prison sentence may only be imposed if there are factors in aggravation supporting a term exceeding the middle term and the jury finds such factors true beyond a reasonable doubt or the judge finds this true in a bench trial. To read a summary of a recent case that exemplifies this in practice, please click on the following link – Improper Upper Term Sentence in Long Beach Courthouse

Showing Prejudice in a P.C. 1473.7 Motion to Vacate

In the context of a 1473.7(a) motion to vacate, prejudice certainly can be shown by the presence of an immigration-neutral neutral plea bargain that defendant rejected because he was not aware that the alternative plea bargain he or she instead agreed to had adverse immigration consequences that his or her attorney never explained. Otherwise, we find arguing that had defendant known the adverse consequences, he or she would have gone to trial instead because of his or her deep ties or deep roots to the United States, developed over years being here. We also think that if defendant had the conviction expunged, it suggests defendant was unaware of the adverse immigration consequences because, otherwise, expungement had beneficial employment effects. For a further description of showing prejudice, please click on the following link – Showing Prejudice in a P.C. 1473.7 Motion to Vacate

Is the 6th Amendment Violated by COVID-19 Mask Rules?

Filing an appeal that rests on weak arguments is an exercise in futility, as the following summary of a recent Second Appellate District court ruling explains that after insisting upon jury trial during the COVID-19 pandemic with strict facial covering rules in place, one cannot then appeal on grounds that the facial covering violated the Sixth Amendment and a Romero motion based on a prior strike one-year old is meritless. To read a summary of the Second Appellate District ruling, please click on the following link – Is the 6th Amendment Violated by COVID-19 Mask Rules?

Concurrent Sentencing under the One Strike Law?

While consecutive sentences is a well-known consequence of multiple sentences under the One Strike Law for certain sex offenses, there is discretion for the judge to impose concurrent sentences for certain offenses, although the following summary does not seem like an appropriate case for this. To read more about sentencing under the One Strike Law, please click on the following link – Concurrent Sentencing under the One Strike Law?

Does the Humphrey Bail Analysis Apply to All Cases?

In re Kenneth Humphrey (2021) 11 Cal. 5th 135 dramatically changed how judges are supposed to evaluate pre-trial release on bail. However, some judge regarded Humphrey as not applying to serious felonies, such as serious sex offenses. This changed in the recent case of In re Kernell Brown, a sex case that went up on appeal to the Second Appellate District court. To read a short summary of this case, please click on the following link – Does the Humphrey Bail Analysis Apply to All Cases?

Sentencing: Considering Youth-Related Mitigating Facts

Sentencing a juvenile in a felony murder case, as well as several other violent felonies, to LWOP is not a violation of the Eighth Amendment because the juvenile is eligible for a youth offender parole hearing. Such a sentence is valid as long as the judge considers and explains his consideration of the Miller v. Alabama factors in sentencing. To read a summary of a recent Los Angeles County case from the Clara Shortridge Foltz courthouse on this, please click on the following link – Sentencing: Considering Youth-Related Mitigating Facts

Police Report Wrongly Excluded as Double Hearsay

The Official Records Exception to the Hearsay Rule allowed admittance of the police report in a recent civil case involving the rape of an autistic woman at a special needs residential facility. We regard this Second Appellate Court ruling as a mistake because of the U.S. Supreme Court ruling in Melendez-Dias v. Massachusetts, which the Second Appellate District did not consider. To read more about this case and double-hearsay, please click on the following link – Police Report Wrongly Excluded as Double Hearsay

Motion to Vacate Denied, Immigration Consequences

A judge will be affirmed on appeal when defendant moves to vacate a conviction under Penal Code § 1473.7(a)(1) and there is a transcript showing defendant was actively involved in the taking of his plea, questioning the judge repeatedly and even asking about insignificant things, as the following summary demonstrates. To read an article with the summary, please click on the following link – Motion to Vacate Denied, Immigration Consequences

Motion to Represent Oneself Two Days Before Trial

A judge may deny a motion by a defendant to represent himself or herself when the judge finds that the motion is likely only made to delay the trial and when there is no genuine legal or factual issue supporting the request, as the following summary exemplifies. To read an article with this summary, please click on the following link – Motion to Represent Oneself Two Days Before Trial

Federal Motion to Vacate 18 U.S.C. § 922(g) Denied

In the following case, defendant argued that he did not knowingly or intelligently enter into his plea that led to him later being charged as a felon in possession of a firearm, but the transcript of the underlying plea showed defendant completely understand the nature and the consequences of his plea, so his federal motion to withdraw his plea was denied. To read more about this case, please click on the following link – Federal Motion to Vacate 18 U.S.C. § 922(g) Denied