Getting Domestic Violence Charges Dropped

Often in the heat of an argument, a husband, wife, boyfriend, or girlfriend will call the cops because they do not know where else to in a domestic situation gone south.

What is started cannot be stopped

Calling the cops sets off a series of events that are no longer under your control or under the control of the party who made the call.

• An arrest will be made
• Bail will be set
• No-contact order may be issued
• You may not be able to return home
• Family, friends and employment may be affected

Dropping Charges is the DA’s Decision—Not Yours

Once the situation has calmed down, in nearly every case the prosecutor will refuse to drop the charges. This is to protect a battered spouse from being bullied into changing her story. The unfortunate result? Sometimes innocent people are arrested, jailed, and kept away from their families.

In several cases we have been successful in stopping charges from being filed, or getting charges dropped or reduced. This requires prompt intervention.

Get in touch with us right away, call 415-465-2062

We Understand What’s Important to You, Your Family and the Court

Case Name: People v. Reed , District: 1 DCA , Division: 5 , Case #: A123967
Opinion Date: 4/13/2010 , DAR #: 5487
Case Holding:
When a defendant moves for a new trial based on ineffective assistance of counsel (IAC), the trial court has a duty to inquire into the basis for the allegations. After a jury convicted appellant, counsel moved for a new trial based on insufficient evidence. When that was denied, appellant indicated through his attorney that he wanted a new trial based on “incompetence” of counsel. Defense counsel then stated he could not make that motion on behalf of appellant. The court responded that it could not consider the request, and that this would be a matter for appellate counsel. The appeal alleged the trial court erred when it did not inquire about the reasons behind appellant’s new trial motion based on IAC. The Court of Appeal agreed. Even though IAC is not one of the statutory grounds for a new trial motion, such a motion can based on IAC. (People v. Fosselman (1983) 33 Cal.3d 572, 582-583.) In this situation, the court “must initially elicit and fully consider the defendant’s reasons for believing he was ineffectively assisted at trial.” (People v. Stewart (1985) 171 Cal.App.3d 388, 396; People v. Mejia (2008) 159 Cal.App.4th 1081, and People v. Mendez (2008) 161 Cal.App.4th 1362.) Because the trial court made no inquiry at all, reversal is required. The Third District’s decision in People v. Richardson (2009) 171 Cal.App.4th 479 is distinguishable because in that case the allegations were set forth in the record. Here the record is silent as to the reasons and that is why remand for a hearing is required.

Case Name: People v. Becker , District: 4 DCA , Division: 2 , Case #: E047898
Opinion Date: 4/13/2010 , DAR #: 5534
Case Holding:
Because Ecstasy contains methamphetamine, it qualifies as a controlled substance or an analog to a controlled substance for purposes of Health and Safety Code section 11377. Appellant was convicted of possession of Ecstasy. He argued insufficient evidence supported the conviction because the drug is neither a controlled substance, nor an analog of any controlled substance for purposes of the statute. Section 11377 prohibits possession of controlled substances which are specified in several other statutes. Ecstasy, also known as MDMA or methyldioxy methamphetamine, is not listed in any of these statutes. But, one of the statutes enumerated in section 11377, namely section 11055, subdivision (d), includes, inter alia, “stimulants” containing any quantity of methamphetamine. In this case, the officer testified Ecstasy includes methamphetamine and has a stimulating effect similar to it. Based on this testimony, the jury reasonably concluded that Ecstasy is either a controlled substance or an analog of methamphetamine for purposes of the crime.

Case Name: People v. Stacy , District: 3 DCA , Case #: C060673
Opinion Date: 4/14/2010 , DAR #: 5555
Case Holding:
There was sufficient evidence to support the crime of false personation. (Pen. Code, § 529.) When police stopped appellant for a suspected DUI, she identified herself as Amber Skorbecky, gave a birth date of April 2, 1984, and said she had no picture identification. On the way to jail, she provided the same information to another officer, and also gave him a mailing address, middle name, and driver’s license number. After a records check, it was discovered the middle name and birth date did not match Amber’s. Photographs and fingerprints from the state database also showed she was not Amber. After being confronted with this evidence, appellant admitted she lied about her identity because she had an outstanding warrant for her arrest. She told the officer that Amber was her cousin. After being convicted of false personation, appellant alleged insufficient evidence to uphold the conviction because it was not proven that 1) Amber was a real person; 2) Amber might become liable or lose a benefit based on appellant’s actions; 3) appellant made an additional act, as the statute requires; and 4) because the corpus delicti rule was not satisfied. The court found ample evidence Amber was a real person, namely confirmation of her driver’s license number, her photo in the “Cal Photo” database, and appellant’s statement that Amber was her cousin. It was also possible that Amber might suffer liability from appellant’s acts because had police believed her, Amber could have been prosecuted and punished for DUI. As to the “additional act” required by the statute, this too was satisfied. While the statute requires something beyond, or compounding, the initial report of false information, here appellant refused to complete chemical testing, which put the impersonated individual at risk of liability for additional Vehicle Code violations. Finally, the court found the corpus deliciti rule was not violated because, in addition to appellant’s extrajudicial statements, there was other evidence of the crime, namely fingerprint and photographic evidence showing appellant was not the person she claimed.

Case Name: People v. Chappelone , District: 1 DCA , Division: 2 , Case #: A121763
Opinion Date: 4/13/2010 , DAR #: 5523
Case Holding:
The trial court erred when it calculated restitution for damaged goods based on the retail value of the items rather than their devalued worth. Appellant was employed by Target and was responsible for dealing with damaged items. Damaged items were categorized and would either be returned to the manufacturer for credit, donated to charity for 30 cents on the dollar of the last retail price, or donated free of cost. Appellant and her husband began stealing some of this damaged merchandise and reselling it through a third party. Much of the property was recovered before it was sold. At the restitution hearing, the court ordered, inter alia, that appellant pay $234,185 for the stolen merchandise based on the last scanned retail price. Appellant argued this was an abuse of discretion because most of the items were to be donated for free or for 30 cents on the dollar. Respondent argued it would be “virtually impossible” to accurately calculate the value. The Court of Appeal noted that complexity of calculation does not absolve the trial court from awarding restitution in a rational manner. It found the restitution amount an abuse of discretion because Target was entitled only to the value of the stolen property, which was less than the last retail value. The last retail value was a good starting point, but the value should have then been discounted to reflect the true nature of the goods. Moreover, much of the merchandise was returned to Target, so they were doubly compensated and this resulted in a windfall.
The restitution order did not violate appellant’s Sixth Amendment right to a jury trial. Relying on a footnote in People v. Giordano (2007) 42 Cal.4th 644, which stated that the cases holding restitution hearings require fewer due process protections than criminal hearings were all decided prior to Cunningham, appellant argued the restitution order in this case constitutes punishment above and beyond that authorized by the elements of the crime, and such punishment cannot be imposed without a jury finding. The argument was rejected because the court disagreed with the premise that restitution increases punishment for a crime. Rather, the primary purpose is to compensate the victim. And to the extent that it also serves the purpose of rehabilitation and deterrence, it is not increased punishment. (People v. Wilen (2008) 165 Cal.App.4th 270; People v. Millard (2009) 175 Cal.App.4th 7.)

Case Name: People v. Landon , District: 1 DCA , Division: 2 , Case #: A123779
Opinion Date: 4/13/2010 , DAR #: 5459
Case Holding:
Amended Penal Code section 4019, which changed the calculation of presentence conduct credit, applies retroactively. While this appeal was pending, the Legislature amended section 4019. Defendant filed a motion in the trial court requesting that her presentence conduct credits be calculated in accordance with the amended statute. The trial court denied the request, finding that the amended statute did not apply retroactively. Defendant appealed from this ruling. The court noted Senate Bill 18 has neither a saving clause nor an express statement of intent. But, under In re Estrada (1965) 63 Cal.2d 740, if the amendment reduces punishment, retroactive application must be presumed as to cases not yet final on the effective date. The amendment to section 4019 reduces punishment for a subset of prisoners who have good conduct in jail. It is insignificant that the time reduction is tied to conduct instead of to a specific offense. Moreover it can be reasonably inferred from section 59 of SB 18 that the Legislature intended retroactive application. (Accord People v. Brown (2010) 182 Cal.App.4th 1354.)
A sentencing remand is not required where an appellant cannot show prejudice from the alleged sentencing error. The trial court found appellant presumptively ineligible for probation because of her out-of-state priors. Appellant argued that all but one of the priors should not have been considered because there was insufficient evidence to show they qualified as felonies in California. Respondent countered a sentencing remand was not necessary even if appellant was not presumptively ineligible for probation because she could not establish prejudice from any sentencing error. The appellate court agreed with respondent. Appellant is entitled to a sentencing remand where it can be shown it is reasonably probable the trial court would impose a different sentence. The evidence presented at the sentencing hearing overwhelmingly showed appellant would not be able to comply with conditions of probation. This was appellant’s fifth DUI conviction, and a sixth DUI case was pending. Appellant had been given several chances to address her alcoholism to no avail. Under these circumstances, the court would not have granted probation even if she was not found presumptively ineligible. Since appellant cannot show prejudice, remand is not required.

Case Name: People v. House , District: 2 DCA , Division: 1 , Case #: B212057
Opinion Date: 4/9/2010 , DAR #: 5398
Case Holding:
The amendment to Penal Code section 4019 regarding presentence custody credits must be applied retroactively to eligible defendants whose convictions were not final on the date of enactment. While the appeal was pending, the Legislature amended section 4019, which changed the calculation of presentence conduct credit. The Legislature did not include a savings clause, nor it expressly indicate whether the amendment applies retroactively. But the Court of Appeal found the plain language of the statute indicates the amendment lessens punishment: before the amendment, a defendant received one day of credit for each six-day period of confinement, and as amended a defendant now receives one day of credit for each four-day period. Consequently, per In re Estrada (1965) 63 Cal.2d 740, the defendant receives the benefit of the mitigation of punishment if the criminal conviction is not yet final. The appellate court remanded to the trial court for recalculation of credits.

Case Name: People v. Botello , District: 2 DCA , Division: 4 , Case #: B212183
Opinion Date: 4/9/2010 , DAR #: 5386
Case Holding:
Because the firearm enhancement under Penal Code section 12022.53, subdivision (e)(1) (principal armed in gang enhancement case) has a specific pleading and proof requirement, when the prosecution has failed to comply with the pleading requirement, it cannot be substituted on appeal in place of another gun-use enhancement. Appellants, identical twins, were convicted of attempted murder trial for the benefit of a gang, and the jury found true firearm allegations under Penal Code sections 12022.5 and 12022.53, subdivisions (b), (c), and (d) as to both of them. They argued on appeal that insufficient evidence supported the gun-use enhancements because the victim could not establish which one of them personally discharged the weapon. Respondent agreed the evidence did not support the enhancements as charged, but argued a gun-use enhancement under section 12022.53, subdivision (e)(1) could be imposed instead. The appellate court found the reasoning in People v. Mancebo (2002) 27 Cal.4th 735, and People v. Arias (2010) 182 Cal.App.4th 1009, prohibit the substitution of the enhancement. Like the One Strike multiple-victim circumstance in Mancebo, and the attempted murder statute in Arias , subdivision (e)(1) has an express pleading and proof requirement. Imposition of the enhancement would violate not only the language of the statute but also appellants’ due process right to notice. And harmless error analysis does not apply to the failure to satisfy the pleading requirement. Therefore, the enhancements were stricken.

Case Name: Alvarez v. Superior Court , District: 1 DCA , Division: 1 , Case #: 5321
Opinion Date: 4/8/2010 , DAR #: 5321
Case Holding:
San Francisco Superior Court’s judicial-assignment procedure limiting the number of judges authorized to accept plea agreements is valid. The prosecutor and defendant agreed to a plea bargain in a judge’s chambers. The judge approved the bargain, but did not take the plea. Per local court procedure, he transferred the matter to a designated department which handles plea negotiations for that judge to accept and take the plea. After the designated judge refused to accept the bargain without modifying it, defendant filed a writ of mandate/prohibition challenging the process. He argued it was not valid because a local court rule had not been adopted. The appellate court held the assignment procedure was validly instituted without promulgation of a local court rule. The court found the assignment procedure was an allocation of the “business of the court” and noted a presiding judge has plenary authority over judicial assignments per Government Code section 69508, subdivision (a), and rule 10.603. A local court rule was not needed before the procedure was enacted because it does not affect how parties are required to prosecute their cases or practices before the court, but rather governs who will hear the matter. For this reason, this case was distinguishable from Hall v. Superior Court (2005) 133 Cal.App.4th 908 [local 30-day cut off rule for filing motions before trial] and from People v. Cobb (1983) 139 Cal.App.3d 578 [local rule refusing plea agreements after pretrial readiness conference].

Case Name: People v. Zamani , District: 6 DCA , Case #: H032414
Opinion Date: 4/7/2010 , DAR #: 5228
Case Holding:
Appropriation of lost property (Pen. Code, § 485) is a general intent crime. In this case of first impression the court considered whether appropriation of lost property is a specific or general intent crime. The court reviewed the statute in the context of the entire statutory scheme which addresses various forms of theft. It compared this statute to section 484, which defines various “felonious takings” as theft. In section 484, the use of the word “felonious” has been held to import the common law specific intent requirement. But not all of the theft offenses in the scheme have a specific intent requirement. (See, e.g., Pen. Code, § 484c.) The only mental state mentioned in section 485 is the perpetrator’s “knowledge.” Also, the Legislature has made it clear that section 485 is a unique species of theft distinct from those in section 484 because it has given both the court and the prosecutor discretion to treat the former as an infraction, whereas the discretion to treat the latter as an infraction is only vested with the prosecutor. This more lenient treatment for section 485 reflects the Legislature’s acknowledgment that it does not have the same elements as a violation of section 484. (The dissent concluded the crime was a specific intent crime.)
Any error in failing to give a mistake of fact instruction was harmless. QuickSilver technology company shipped two circuit boards, but they were lost in transit. Another company purchased the boards from a dumpster diver and sold them to an individual on E-Bay for about $100. The individual contacted QuickSilver for a manual to learn more about the boards, and learned from an employee that they were lost property valued at about $24,000. The company that sold the individual the boards on E-Bay enlisted appellant’s help in getting the boards back to QuickSilver and obtaining a reward for the purchaser. Instead, appellant told QuickSilver he was “sitting on a gold mine” and sought payment for return of the boards. At his trial for appropriation of lost property, appellant testified he knew QuickSilver had been paid by their insurance company, but did not believe they would repay the insurance company, and so was trying to set them up for insurance fraud. Based on this testimony he requested a mistake of fact instruction, which the trial court denied. The court held failure to give the instruction was harmless given that he provided no explanation as to why it was necessary to try to extract large sums of cash from QuickSilver in order to report suspected insurance fraud to the Department of Insurance.

Case Name: People v. Friedeck , District: 2 DCA , Division: 6 , Case #: B213944
Opinion Date: 4/8/2010 , DAR #: 5263
Case Holding:
A defendant’s refusal to undergo drug treatment as a condition of deferred entry of judgment (DEJ) makes him ineligible for Prop. 36 probation. After pleading guilty to possession of Percocet, the court placed appellant on DEJ and ordered him to undergo drug counseling. A DEJ violation alleged appellant was arrested for being under the influence. It further alleged appellant would not be eligible for Prop. 36 probation because there was no evidence of enrollment in drug treatment. Appellant admitted being in violation of the DEJ order and was sentenced to prison. At a subsequent credits hearing, appellant requested Prop. 36 probation, but the request was not entertained. Appellant argued on appeal that his implied refusal to undergo drug treatment did not make him ineligible for Prop. 36. The Court of Appeal affirmed, relying on People v. Strong (2006) 138 Cal.App.4th Supp. 1. As that case recognized, even though no sentence is imposed when DEJ is granted, it is the equivalent of probation. Prop. 36 does not require that the refusal of drug treatment occur post conviction, or that treatment is refused under a particular program. Because the conviction in this case was entered after appellant refused to participate in drug treatment, that is sufficient to preclude Prop. 36 eligibility.

Case Name: People v. Superior Court (Pearson) , District: CalSup , Case #: S171117
Opinion Date: 4/8/2010 , DAR #: 5260
Case Holding:
Penal Code section 1054.9 does not unconstitutionally amend Prop. 115. The Habeas Corpus Resource Center filed a motion for post-conviction discovery under section 1054.9 to aid in habeas preparation to challenge the defendant’s death sentence. The statute requires defendants sentenced to death or to LWOP to be given post-conviction discovery in some circumstances. After the trial court partially granted the request, the prosecution filed a writ of mandate alleging section 1054.9 is invalid because it amended Prop. 115 without 2/3 legislative majority as required by the proposition. The Supreme Court granted review on the issue of the statute’s validity. The Court found section 1054.9 augments Prop. 115’s discovery provisions, but does not amend them because it does not authorize anything Prop. 115 prohibits or prohibit anything it authorizes. Prop. 115’s discovery provisions relate to evidence at trial whereas this discovery statute is for habeas investigation, which is separate from the criminal case itself.

If you were convicted of a misdemeanor and are still on probation, file a PC 1203.3 petition to have probation terminated early, and a PC 1203.4 petition for expungement.

If you were convicted of a misdemeanor and have completed probation, file to have conviction dismissed and file a PC 1203.4 petition for expungement.

If you were convicted of a misdemeanor and not given probation, file to have conviction dismissed and a PC 1203.4a petition for expungement.

If you were convicted of a felony and are on probation, file a PC 1203.3 petition to have probation terminated early, file a PC 17(b) petition to get felony reduced, and a PC 1203.4 petition for expungement.

If you were convicted of a felony and are done with probation and/or county jail time, file a PC 17(b) petition to get felony reduced, and a PC 1203.4 petition for expungement.

If you were convicted of a felony and were never given any probation at all and were sentenced to county jail., file a PC 17(b) petition to get felony reduced, and a PC 1203.4a petition for expungement.

If you were convicted of a felony and were sentenced to state prison or otherwise under the authority of the Dept of Corrections, file petition for Certificate of Rehabilitation and Pardon.

Dismissal Possible?

You are eligible for dismissal of a conviction if you finished probation or got early release, have paid all the fines and restitution, are not on probation for another offense and are not currently charged with another offense.

or

You never received probation and your conviction was a misdemeanor, one year has passed since you were convicted, you have complied with the sentence, you are not currently charged with another offense, and you have generally obeyed the law and lived a righteous life since your conviction.

Arrested for DUI? Here is a summary of the services I provide.

DMV HEARING

I will represent you at your DMV hearing.

I will contact the DMV and set a date for your hearing. I will ask for all the evidence to see if there are any mistakes. I will try and save your license.

COURT

I will appear at the arraignment and obtain the discovery I will appear at the pre-trial conference and, when appropriate, file one or more motions to suppress.

I have motions for most situations. If you felt something about the arrest was unfair I will fight for you. Even if the police did not make any police mistakes I can still negotiate the best offer.

POLICE REPORT

In the two page police report, I look at the field sobriety test location, the preliminary alcohol screen information (PAS) information—the breath test—and then I check the chemical test information (Breath, Blood or Urine).

Attached to the police report is the officer’s narrative. This contains the first observation, the observations after the stop, the field sobriety tests, one leg stand, Romberg balance, walk and turn and PAS (breath test), other details of the arrest and any recommendations.

Then there is the sworn officer’s statement in the DMV’s form called the DS-367. This is where the officer gave his or her account to DMV in a sworn statement.

BLOOD TEST

This is a chemical test, with sometimes two separate pieces of evidence. There may be a document from the person who actually took the blood and another document from the person who analyzed the blood.

SERVICES AND FLAT FEE

I charge an inexpensive flat fee for first and second time DUI matters, usually no more than $3000 and often as low as $2500. First, I will explain to you the system, talk about the case and answer your questions.

I am usually looking for two or three openings. The field sobriety tests offer opportunities for motions, as do check points, breathe tests, and blood tests. I will be looking for mistakes that can make all the difference in terms of winning your case or getting a better offer.

You should do what you think is best based on an informed understanding of the situation and my suggestions.

Contact my office today or call me direct at 415-465-2062

Doug Slain

The FBI is currently targeting online “traders” of child pornography. Photographs or images are traded among individuals who frequent chat rooms or newsgroups where child pornography can be found.

The penalties for getting involved in trading child pornography online vary depending on whether the individual has a prior criminal record, the amount traded, and whether the individual was actively trading. More and more, first time offenders are going to jail and repeat offenders are receiving as much as ten years in prison.

If you come across what appears to be child pornography on the Internet, even accidentally, do not download such an image to your hard drive, disk, or printer. It you do so you are breaking the law.

The FBI has primary jurisdiction for investigating child pornography on the Internet. The FBI has a very aggressive, ongoing program known as “Innocent Images,” which targets online child pornographers.

Child pornography is the depiction of a child under the age of eighteen engaged in sexually explicit behavior.

The Law Office of Douglas Slain represents investors who have suffered substantial economic loss as a result of various types of broker misconduct.

We represent investors who have been victimized by promoters of questionable private placements. Douglas Slain, the editor of Securities Enforcement Reporter and Blue Sky Chronicle and former chair of the American Bar Association’s Professional Responsibility Committee, recently authored a press release, The Dark Side of Private Placements, which received national attention. Please see sample issues of national publications covering private placement fraud at www.enforcementreporter.com.

Call our office today if you have experienced losses with a stockbroker, brokerage firm or investment advisor associated with:

• Failure of the Brokerage Firm to Adequately Supervise the Broker
• Breach of Fiduciary Duty
• Misrepresentation and Fraud
• Overconcentration and Lack of Diversification
• Churning of an Account
• Purchase of Annuities or Variable Life Insurance
• Hedge Fund Losses
• Lack of Suitability
• Failure to Supervise the Activity of a Customer Account
• Negligence

We undertake non-criminal law representation (securities plaintiffs work) on a contingency basis. We do not charge any fee for a telephone consultation. The facts of every case are different.

Call (415) 465-2062 to speak to an attorney.

CA Penal Code section 17 (b) allows a motion to be filed to reduce felony convictions to misdemeanor convictions for purposes of the record.

If your conviction was based on a “wobbler” charge (wobblers are crimes that can be treated as misdemeanors or felonies), the Law Offices of Douglas Slain can help you.

Your conviction will become a misdemeanor “for all purposes”–meaning you no longer have a felony record and you can answer “no” to any question regarding a felony conviction.

The decision to reduce the nature of a conviction is discretionary with the Court, and section 17 (b) motions can be opposed by the DA.

Our fees are more than reasonable: $750.00, which and includes a Petition for Reduction to Misdemeanor and if, applicable, a Petition for Expungement, plus the hearing. This covers all court appearances, filing fees, and necessary research.

Request a Free Telephone Consultation: (California Cases Only) 415-465-2062

For more information about criminal records please see my main expungementspage.

In spite of recent courtroom losses, parents who blame their children’s autism at least in part on childhood vaccines say their legal battle is far from over.

“We’ve always been in it to the very end,” said Theresa Cedillo of Yuma, Ariz., whose autistic daughter Michelle became the focus of a key test case at the U.S. Court of Federal Claims in 2007. Even though the special master in the case ruled against her, Cedillo said, “I am optimistic. We have met our burden.”

Cedillo’s daughter was born healthy in 1994 but, a week after receiving the standard measles-mumps-rubella vaccine in 1995, she ran high fevers and her development slowed. In 1997, she was diagnosed with autism. Now 15, Michelle requires constant monitoring because of frequent and life-threatening seizures, according to her mother — and her case is still pending. “It’s really sad.”

The U.S. Supreme Court has agreed to hear next fall the case of Bruesewitz v. Wyeth, a non-autism case that asks the justices to decide whether the federal vaccine law pre-empts state law tort claims of vaccine design defects. If Wyeth wins, then more than 5,000 families making autism-related vaccine claims may not be allowed to sue vaccine makers in tort actions after they are adjudicated under the so-called “vaccine court” system Congress devised in 1986.

Read the full story at Law.com

Case Name: People v. Gamache , CalSup , Case #: S052808
Opinion Date: 3/18/2010 , DAR #: 4099
Case Holding:
Under Penal Code section 1424, a motion for recusal of the prosecutor will not be granted unless it is shown that a conflict exists that makes a fair trial unlikely, with review of the trial court’s decision being whether there has been an abuse of discretion. In this death penalty case, the Supreme Court reviewed the denial of the motion for recusal against the entire San Bernadino County District Attorney’s Office and found no abuse of discretion. The victim of the attempted murder worked for the office and her husband was the murder victim. The office was extremely large and divided into three geographical divisions. The responsible prosecuting attorneys were no more than superficially acquainted with the employee-victim. Under the facts of this case, although appellant showed that the prosecution had a conflict by virtue of the victim’s employment, he failed to establish that the victim’s employment with the office affected the District Attorney’s decision to seek the death penalty or would affect the conduct of the trial itself, such that he could not receive fair trial.

Case Name: In re R.C. , District: 1 DCA , Division: 4 , Case #: A12675
Opinion Date: 3/19/2010 , DAR #: 4182
Case Holding:
A court is not required to consider a minor’s eligibility where the minor, initially alleged to have committed a felony, ultimately admits a misdemeanor offense. Under Welfare and Institutions Code section 790, a minor may be eligible for deferred entry of judgment because of the commission of a felony offense. The prosecuting attorney is required to determine eligibility and if there is a determination of eligibility and the minor admits the offense, the court may grant DEJ. Here, a petition alleging felony vandalism was filed but minor ultimately admitted a misdemeanor violation of Penal Code section 594 and was adjudged a ward of the juvenile court. On appeal, minor contended that the court failed to exercise discretion to determine whether he was eligible for DEJ. However, the appellate court, looking to the language of the statute and the purposes of the law, concluded that because minor did not admit a felony violation, DEJ procedures were no longer applicable.

Case Name: Blakely v. San Bernadino County Superior Court , District: 4 DCA , Division: 3 , Case #: G042107
Opinion Date: 3/19/2010 , DAR #: 4229
Case Holding:
Under the MDO Act the deadline to evaluate and certify the prisoner is mandatory and failure to comply with it invalidates the Board’s determination. The Mentally Disordered Offender Act, Penal Code section 2960 et seq., provides for involuntary mental health treatment of the prisoner who meets the criteria set forth in the statute. The Act requires that the evaluation and certification of the prisoner occur prior to release on parole. Here, following her conviction for resisting a peace officer and misdemeanor vandalism, appellant was incarcerated in prison on September 3, 2008, for a 16 month term, but the next day, the authorities calculated that she should be released on parole because of accrued time credits. Before she was released, however, she was evaluated and certified to the Board of Parole Hearings as meeting the MDO criteria and the Board released her on parole on condition she receive treatment at the state hospital. She was then transferred to Patton State Hospital. The appellate court, utilizing rules of statutory construction, held that the deadline (prior to release on parole) for the certification was mandatory and that the statute contained no provision for good cause extensions of the deadline. Because appellant, despite her custody status, was on parole when the evaluation/certification was completed the action was unauthorized and had to be invalidated. The court noted that its holding did not necessarily mean that appellant should be released because, where appropriate, action could be taken under the Lanterman-Petris-Short Act for continued detention. Ironically, just prior to oral argument on this case, the Board found appellant no longer met the criteria of a MDO and scheduled her for parole release.

Case Name: People v. Castillo , District: 3 DCA , Case #: C061806
Opinion Date: 3/18/2010 , DAR #: 4177
Case Holding:
Imposition of the $30 assessment pursuant to Government Code section 70373, for an offense occurring prior to the effective date of the statute is not a violation of the prohibition against ex post facto laws and the triggering date for the imposition is the date of conviction. Appellant was convicted of a 2007 carjacking and sentenced to 19 years in state prison and ordered to pay a $30 criminal conviction assessment pursuant to Government Code section 70373, which has an effective date of January 1, 2009. The court held that imposition of the $30 assessment was not a violation of the prohibition against ex post facto laws because the assessment is not punitive — it was not denominated a fine, the amount is small and not dependent on the seriousness of the crime, and it was adopted to address a budget shortfall. Additionally, imposition of the assessment was not statutorily prohibited. The language of the statute states that the assessment is to be imposed on every conviction, as opposed to every offense. This language is identical to that of Penal Code section 1465.8, as interpreted in People v. Alford (2007) 42 Cal.4th 749, holding the conviction date to be the operative date and when a term has been given a particular meaning by a judicial decision, it is presumed to have the same meaning in later enacted statutes. In this case, because the conviction was after the January 1, 2009, effective date of section 70373, imposition of the assessment was not error.

Case Name: People v. Sokolsky , District: 2 DCA , Division: 4 , Case #: B212437
Opinion Date: 3/23/2010 , DAR #: 4337
Case Holding:
An appellant has no constitutional right to self-representation on appeal from an SVPA commitment. At jury trial, appellant was found to be a sexually violent predator and committed for treatment. On appeal he argued that he should be allowed to represent himself on the appeal because a significant liberty interest is at stake in a SVPA proceeding and, regardless, the appellate court has the discretion to permit him to represent himself. The court, relying on People v. Fraser (2006) 138 Cal.App.4th 1430, which held that a defendant has no constitutional right to represent himself in a civil commitment under the SVPA, rejected appellant’s claim. There is no Sixth Amendment right to self representation in proceedings other than criminal prosecutions and the SVPA proceeding, a civil commitment with a non-punitive purpose, is not equivalent to a criminal prosecution. As to the discretion to permit appellant to represent himself, the court declined to exercise its discretion in this area.

Case Name: People v. Bowman , District: 5 DCA , Case #: F058082
Opinion Date: 3/23/2010 , DAR #: 4395
Case Holding:
The holding in People v. Geier (2007) 41 Cal.4th 555, that an in-court witness may rely on laboratory notes and reports prepared by another to support the witness’ expert opinion was not abrogated by Melendez-Diaz v. Massachusetts (2009) 557 U.S. __ [129 S.Ct. 2527]. Appellant was charged with transportation of methamphetamine. At trial, the court permitted the supervisor of the analyst who actually completed the analysis of the controlled substance to testify that she had evaluated the notes and test results and determined that they supported her conclusion that the substance was methamphetamine. The report was not entered as evidence. On appeal, the court, relying on People v. Geier, found no error. It explained that in Geier, there was no Sixth Amendment violation of the right to confrontation because the in-court witness relied on laboratory notes and reports to support an expert opinion that she was qualified by training and experience to give. Melendez-Diaz, on the other hand, dealt with the admissibility of a written document, defined as testimonial, that was not subject to cross-examination concerning either expert qualifications or analytical conclusions, the “witnesses” who completed the affidavits not testifying.

Case Name: People v. Gonzales , District: 4 DCA , Division: 2 , Case #: E046800
Opinion Date: 2/23/2010 , DAR #: 4399
Case Holding:
CALCRIM No. 1170 adequately defines the “residence” element of Penal Code section 290; and the definition of residence in Penal Code section 290.01, subdivision (g) is not unconstitutionally vague and ambiguous. Appellant registered as a sex offender at one location in Fontana but evidence presented at trial indicated that he spent considerable time at a second address and that he had not registered this second address. Appellant was convicted of failure to register under Penal Code section 290, subdivision (g)(2). On appeal, he argued that CALCRIM No. 1170 inadequately defined the “residence” element of the registration statute. The instruction requires proof that defendant knows of the duty to register every residence in which defendant regularly resides regardless of the number of days and nights he spends there. The court disagreed with appellant, finding that the meaning of the term “residence” as defined in Penal Code section 290.011, subdivision (g) is a commonly understood term and, as such, does not require a separate sua sponte definition by the court. The court also found that the definition of “residence” in Penal Code section 290.011, subdivision (g) is not unconstitutionally vague and ambiguous as it is the common meaning of residence understandable by the average person or law enforcement agency.

Case Name: People v. Sanders , District: 2 DCA , Division: 8 , Case #: B206569
Opinion Date: 2/24/2010 , DAR #: 4382
Case Holding:
Where a party is deprived of the benefits of cross-examination of a witness by refusal of the witness to answer, whether the trial court strikes the testimony or instructs the jury that the refusal can be a factor in assessing credibility depends on whether the testimony involves collateral matters. Appellant was charged with shootings of two victims at a motorcycle club party. Although both victims, as well as other witnesses, positively identified appellant as one of the shooters, identification of the second suspect was subsequently determined to be erroneous. One of the witnesses changed his identification after being advised by other individuals that this subject was not at the party. At trial, the witness refused to identify the individuals who had so advised him. The court denied appellant’s motion to strike the testimony and instead provided wide latitude on cross examination and instructed the jury that the witness’ failure to answer the questions as to the identity could be used in assessing his credibility in all his testimony. The appellate court found no error — where the questions that the witness refuses to answer concern a collateral issue and not a material issue and the witness is fully cross examined as to material issues, there is no violation of the due process right to confront and cross examine. The court also found no error in the sentence imposed, 64 years to life for the two attempted murders and the two Penal Code section 12022.53, subdivision (d) enhancements. Where there are both determinate and indeterminate sentences, the provisions of the Determinate Sentencing Act and Penal Code section 1170.1 do not apply.

Case Name: People v. Milward , District: 3 DCA , Case #: C058326
Opinion Date: 3/22/2010 , DAR #: 4250
Case Holding:
Penal Code section 245, subdivision (a)(1) (assault with a deadly weapon) is not included in Penal Code section 4500 (assault with a deadly weapon by a life prisoner) and a defendant can be convicted of both. Appellant was convicted of both Penal Code section 245, subdivision (a)(1) and section 4500. The appellate court rejected his argument that because the elements of section 245, subdivision (a)(1) are included in section 4500 he could not be convicted of the lesser offense. (People v. Reed (2006) 38 Cal.4th 1224.) However, section 4500 merely providing for assault with a deadly weapon or instrument, does not exclude an assault by a life prisoner with a firearm, whereas section 245, subdivision (a)(1) specifically excludes a firearm in its definition of deadly weapon. Thus, a life prisoner can violate section 4500 without violating section 245, subdivision (a)(1). Although the appellate court would normally be bound by the Supreme Court’s decision in People v. Noah (1971) 5 Cal.3d 469, holding otherwise, because section 245, subdivision (a)(1) was amended to exclude firearms following the Noah decision, Noah no longer provided a binding interpretation. Separately, the court noted that CALCRIM No. 875, unlike CALJIC No. 9.02, does not accurately describe section 245, subdivision (a)(1) because it does not exclude firearms, and that it should be rewritten.

Case Name: People v. Fleury , District: 3 DCA , Case #: C061629
Opinion Date: 3/19/2010 , DAR #:4287
Case Holding:
Imposition of the $30 per offense Government Code section 70373 assessment does not violate state or federal prohibitions against ex post facto statutes. The ex post facto clauses of the federal and state constitutions protect a defendant from retrospective legislation with a punitive effect or purpose. If the intent of the Legislature is to impose punishment, it cannot be done retroactively. If the intention was to enact a civil and nonpunitive regulatory scheme, it may still violate the prohibition against ex post facto laws if it is so punitive that it negates the intent. Government Code section 70373, imposing a $30 assessment for a criminal or traffic offense, was part of a broader legislative scheme raising costs in civil, family, and probate cases. Its language indicates that the Legislature did not intend the assessment as punishment — it is titled an assessment with its purpose being court funding, a nonpunitive objective. It is not imposed solely on persons convicted of a crime as it also includes traffic matters. This Legislative intent is not negated by the effect of the assessment, being relatively small, it does not constitute punishment.

Case Name: Wilson v. Los Angeles County Superior Court , District: 2 DCA , Division: 7 , Case #: B216212 , Opinion Date: 3/2/2010 , DAR #: 4279
Case Holding:
Pursuant to the due process clause of the California and Federal Constitutions, an initial SVPA commitment trial may not proceed while the defendant is incompetent. At a probable cause hearing, the superior court judge found probable cause to believe appellant suffered from a diagnosed mental disorder, was likely to engage in violent sexual behavior if released, and the matter was set for an initial trial on the SVPA petition. Counsel for appellant moved to stay the proceedings pending determination of appellant’s competency but the court denied the motion, finding appellant had no statutory right to be mentally competent during SVPA proceedings, and that with the guarantee of counsel provided by the SVPA statute, his due process concerns were met. The appellate court disagreed, citing People v. Allen (2008) 44 Cal.4th 843, which provides a four-part balancing test to determine which protections not contained in the statute are required to meet due process considerations. Here, in weighing whether defendant must be mentally competent for the initial SVPA proceeding, the court observed that appellant’s private interests, loss of liberty and stigma as being classified as a sexually violent predator subjected to treatment, are high; dignitary interest, ability to be an active participant in an SVPA proceeding, is strong; absent appellant’s participation, risk of an erroneous finding exists; and the state’s interest protecting the community and providing treatment will not be unduly hampered with a requirement that a defendant in the initial SVPA proceeding be mentally competent. The court granted appellant’s petition for writ of mandate and directed the superior court to suspend SVPA proceedings and conduct a hearing, in which Penal Code sections 1368 and 1369 can be utilized, to determine appellant’s mental competency. [Editor's note: This issue is pending in the Supreme Court in People v. Moore (2009) 174 Cal.App.4th 856, review granted September 17, 2009, S174633.]

The California Department of Justice (DOJ) maintains the state’s registered sex offender database.

By law, persons convicted of specified sex crimes are required to register as sex offenders with a local law enforcement agency.

Registered sex offenders are required to update their information annually, within five working days of their birthday.

Some sex offenders must update more often: transients must update every 30 days, and sexually violent predators, every 90 days.

The Sex Offender Tracking Program keeps track and if a registered sex offender is in violation of the update requirements, the Internet web site shows it.

When changing their address (or when becoming homeless), they are required to update their registration information within five days.

Not every registered sex offender appear on this Internet web site.

Approximately 25% of registered sex offenders are excluded from public disclosure by law.

Whether public disclosure is permitted is based on the type of sex crime involved.

Sex offenders may apply for exclusion if:

(1) sexual battery by restraint (Penal Code § 243.4, subd. (a));

(2) misdemeanor child molestation (Penal Code § 647.6, or former section 647a); or

(3) any offense which did not involve penetration or oral copulation, the victim of which was a child, stepchild, grandchild, or sibling of the offender, and for which the offender successfully completed or is successfully completing probation.

Click here for a copy of the exclusion form, which must be submitted to DOJ and approved before exclusion will be granted. Registered sex offenders who are granted exclusion from the Internet web site must still register as sex offenders.