PC 1473.7 Motion on 273.5 Plea – Showing Prejudice

The following summary of a recent Fourth Appellate District case, People v. Bravo, sets forth a six-factor test that a judge should use in evaluating a motion to vacate under Penal Code § 1473.7(a)(1) – and defendant would be wise to address – in evaluating undue prejudice claims as a result of a conviction. To read the six factors and to better understand motions to vacate for immigration consequences, please click on the following link – https://www.greghillassociates.com/pc-1473-7-motion-on-273-5-plea-showing-prejudice.html

Is it Brandishing a Weapon if Defendant 15 Feet Away?

Depending upon the manner in which defendant exhibits a weapon toward the victim, and defendant’s demeanor, defendant can commit brandishing a weapon even if fifteen feet away from a victim. In the following case, this issue is discussed, as well as a discussion of whether brandishing a weapon is a lesser-included offense of assault with a deadly weapon. To read a short summary of the reported decision from the Fourth Appellate District, please click on the following link – https://www.greghillassociates.com/is-it-brandishing-a-weapon-if-defendant-15-feet-away.html

Videotape of Defendant’s Remorse Properly Excluded.

A judge has broad discretion to exclude certain evidence that the judge finds is unreliable because it was not, for example, related to a proper police interrogation. Here, at a sentencing hearing in which the death penalty was imposed, the judge excluded a confession by defendant in which he wept over committing the crime, showing remorse. To read more about this case, please click on the following link – https://www.greghillassociates.com/videotape-of-defendants-remorse-properly-excluded.html

Trial Court Errs by Imposing 20 Kilogram Enhancement

A sentence may be based upon a sentence enhancements that was never alleged in the complaint, information or any amended charges, even if the evidence certainly supports such an enhancement. In the following summary involving transportation of a controlled substance, a twenty kilogram (fifteen years each) sentence enhancement was imposed after the verdict, even when the jury was never asked to find it true. To read a summary of the case, please click on the following link – https://www.greghillassociates.com/trial-court-errs-by-imposing-20-kilogram-enhancement.html.

Juror Excusal Because Belief System Unfair to Blacks?

A judge may not excuse a juror just because a juror has a stated belief that the criminal justice system is unfair to African Americans. However, if the juror states that this belief would cause him or her to be unable to be impartial because of sympathy for defendant, then the judge may excuse the juror without violating defendant’s right to a fair trial. To read a summary of a recent Sacramento-area case where this was litigated, please click on the following link – https://www.greghillassociates.com/juror-excusal-because-belief-system-unfair-to-blacks.html

Probation Terms: Is Visiting a Website Patronizing a Place?

If a term of probation is that defendant not visit certain places, it is prudent to regard this condition broadly, rather than narrowly. In the following sex offense matter in federal court, one probation condition was that defendant not patronize certain businesses and he visited a pornographic video website. The judge found this violated the terms of probation, although defendant did not walk into a store where such items were sold and in fact, did not buy anything from the website. To read more about this case, please click on the following link – https://www.greghillassociates.com/probation-terms-is-visiting-a-website-patronizing-a-place.html

Limiting Mental Health Diversion Eligibility Until Plea.

The decision in Frahs concerning retroactive eligibility for mental health diversion under Penal Code § 1001.36 has been misunderstood by many. The following summary clarifies that once someone enters a plea and is placed on formal or informal probation, mental health diversion is no longer available, as it is a pre-trial program. To read more about mental health diversion and when it is available, please click on the following link – https://www.greghillassociates.com/limiting-mental-health-diversion-eligibility-until-plea.html

AB 1950: How Long is Probation for DUI & VC 2800.2?

Assembly Bill (AB) 1950, while appreciated for limiting informal probation to one year and formal probation for two years (with some rather significant exceptions), is challenging to apply in mixed cases involving both a felony and a misdemeanor. As the following summary of a misdemeanor DUI with three years of summary probation (as an exception), how long is defendant exposed to a felony probation violation if on felony probation, too, in the case? Two years or three years? To find out, please click on the following link – https://www.greghillassociates.com/ab-1950-how-long-is-probation-for-dui-vc-2800-2.html

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 – https://www.greghillassociates.com/can-one-file-a-1473-7-motion-to-vacate-while-in-custody.html

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 – https://www.greghillassociates.com/svp-admission-of-hearsay-non-predicate-offenses.html