Prosecutor Must Disclose Summary of Expert Testimony

If a criminal defense attorney is not aware of the prosecutor’s obligations, that criminal defense attorney cannot ask the prosecutor for certain things that may help defendant.  One of those things that prosecutors generally do not like to provide is a summary of their expert’s testimony before the expert testifies.  This summary must be provided to defense counsel under Penal Code § 1054(f).  To read a short article on how this applies, please click on the following link –

Court May Consider Facts Admitted as Basis of Prior Plea.

When a defendant faces a possible sentence enhancement based on a prior conviction out of state, the question is whether the definitions and elements of a crime in another state meet the California definitions or requirements to permit the out-of-state conviction to “count” as a prior strike, prior serious felony, etc.  In looking at the prior record, the Sixth Amendment right to confront one’s accuser limits what a California court can legally consider.  People v. Gallardo, a 2017 California Supreme Court case, set such limits, but allows a court here to consider those facts admitted by defendant in another state as part of the plea colloquy.  What does this include?  To read more about this issue, please click on the following link –

Does Prop 64 Mean I Can Have Marijuana in Prison and Jail?

While it may seem like an absurd question to some, to others it seems like a legitimate question: does the Adult Use of Marijuana Act (Prop 64) permit adults in prisons and jail to have and use marijuana there? The answer is no, but why? To read the answer to why this is not legal, please click on the following link –

When is a Prior Conviction Outside California a Strike?

It may come as quite a surprise to some that a conviction for, for example, residential burglary outside California can be considered a prior strike for purposes of sentencing later in California under the Three Strikes Act. The 2017 case of People v. Gallardo is the most recent case on this issue that changed the law on how a California judge is supposed to evaluate whether an out-of-state conviction meets the same elements required for a conviction in California for such a crime. To see how Gallardo is applied to a recent California case with robbery conivctions in North Dakota, please click on the following link –

Duty to Maintain Innocence under McCoy v. Louisiana?

When a client tells expressly his attorney that he wants to maintain his innocence at trial, an attorney has a “duty not to steer a ship the other way.” The attorney cannot concede guilt at any point. For a recent appellate decision that interpreted this duty and violation of this sarcrosant duty, please click on this link –

The Right to Represent Oneself – People v. Faretta?

If one watches enough television and movies, one may believe that representing oneself is really quite easy. No one really needs law school or the Bar Exam, right? Everyone likes to believe they are smart, so why not represent yourself? Well, one can ask a judge for that right, but how is it done? When should someone request this? What must the judge advise that person? To read all about this, please click on the following link –

What is a People v. Mayberry Consent Jury Instruction?

A People v. Mayberry defense involves a defendant’s reasonable, but wrong, good faith belief in the victim’s consent, often in the context of a sex offense. A jury instruction on this issue would allow the jury to find defendant did not engage in forcible sexual contact if he had a good faith belief in the victim’s consent to such sexual contact. If such an instruction is given, then defendant may not be found to have engaged in forcible sexual contact. The key is establishing evidence of consent, as the following case summary explains. Please click on the following link to read the case summary –

SB 1437: Unconstitutional by Amending PC §§ 188, 189?

There is a wide-spread, even earnest misunderstanding among many District Attorneys and many judges that because Proposition 7 and Proposition 115, both voter initiatives, amended Penal Code section 188 and 189, Senate Bill 1437 was an unconstitutional change to these two statutes. The belief that SB 1437 improperly modified the felony murder rule is academically and intellectually clever, but incorrect, as the Fourth Appellate District held in the following case summarized below. To read the summary, please click on the following link –

Under SB 1437, When Must the Judge Appoint Free Counsel?

The judge assigned to rule on a petition for resentencing under the new felony murder rule (SB 1437) must appoint counsel for petitioner if the judge finds petitioner has made a prima facie showing of entitlement to relief. How does a person, without an attorney, make a prima facie showing of entitlement to relief? The answer is that one needs to simply “check a few boxes” on the form SB 1437 petition, but the judge can look into the representations to see if the petitioner is telling the truth. To read more about getting counsel appointed for free, please click on the following article –

Can SB 1437 Apply to Murder When a Provocative Act?

In the short time since Senate Bill 1437 was passed, we have received dozens of calls from well-wishing and concerned family members of those in custody who think it applies to any murder. Inmates themselves also call us through three-way calls arranged by loved ones and ask questions that show they assume it applies to any murder whatsoever. The following summary exemplifies the limited scope of relief intended in SB 1437 by discussing a recent Second Appellate District Court decision wherein defendant was found to have committed murder based on the provocative act doctrine. This did not apply to SB 1437 resentencing. To read why not, please click on the following link –