That new case on the ridiculous most non-consensual encounter ever

Case on the 20th. In re Edgerrin, Fourth District, D076461. I summarized my feelings on instagram. Glad for the good law. Sad for the remedy. Sad for society that we can’t just call that intentional racism. Glad at least to see a mention of race. Sad it’s in the concurrence.

A nice one 6th district; finality and retroactivity for transportation of some weed

Well isn’t this pretty. Sixth District (way to go Lori Quick of SDAP), held yesterday in Lopez, H046618, that if someone is on probation that means his case is not “final” for purposes of retroactivity of an ameliorative law…i.e. he gets the benefit of the new law. This one was for transportation of weed, conviction well before Prop. 47. but presumably this has to apply to everything new and pretty and that’s good in the crimlaw world. Love this.

“Does suspending execution of sentence to place a defendant on mandatory
supervision constitute a final judgment for purposes of retroactively applying an ameliorative statutory amendment? We conclude there is no final judgment in that situation because sentencing is not actually complete. In other words, a defendant who remains on mandatory supervision is not yet subject to a final judgment. As a result, defendant Gustavo Lopez is entitled to retroactive application of a statutory amendment that made transporting a controlled substance for personal use a misdemeanor. We will reverse the trial court’s decision to the contrary.”

4th District busy bumble bees one is good, one is so so, and last one stings

Fourth district issued a great opinion today (People v. Barton, D072639) on erroneously dismissing a juror for refusing to deliberate. Reversed. REALLY thorough discussion about how the abuse of discretion standard for this issue is a little different and involves less deference than normal.

Meanwhile, they ordered the trial court in another case (People v. Shaw D076124) to strike four, one year priors under SB 136, but interestingly said they were remanding the case for a full blown resentencing hearing because the structure of the sentence changed. This is kind of an interesting issue. If I have a guy who was maxed out, I argue that he should get a full blown resentencing hearing because he can show the court how great he has been doing in prison to get his sentence reduced beyond just the prison priors being stricken.

But if that’s the law then it’s super bootsie for your client who got the low term, potentially because the judge felt the 1 year priors would get the judge to the sentence (s)he thought was appropriate. This is not necessarily going to happen but it’s possible he goes back down and gets the same sentence. Can he get a worse sentence? Can someone chime in on that? I haven’t researched it seems like it’s falls outside the bar on that?

Different division in the Fourth reached this decision today in People v. Jones E072961 on SB1437, so now we have a further split on this issue, and this is so fucked up I don’t even know where to start:

“On appeal, Jones argues the trial court erred by denying his petition without the benefit of briefing from his counsel. He argues he can demonstrate a prima facie case for relief because his special circumstance finding no longer supports a felony-murder conviction after our Supreme Court’s decisions in People v. Banks (2015) 61 Cal.4th 788 (Banks) and People v. Clark (2016) 63 Cal.4th 522 (Clark), which clarified the meaning of “major participant” and “reckless indifference to human life.”

Our appellate courts have recently split over whether such a pre-Banks/Clark special circumstance finding renders a petitioner ineligible for relief under section 1170.95 as a matter of law. (Compare People v. Gomez (2020) 52 Cal.App.5th 1 (Gomez), People v. Galvan (2020) 52 Cal.App.5th 1134 (Galvan), and People v. Allison (Oct. 2, 2020, B300575) _ Cal.App.5th _ 2020 Cal.App. Lexis 925 [concluding the special circumstance finding renders a petitioner ineligible for relief as a matter of law], with People v. Torres (2020) 46 Cal.App.5th 1168, review granted June 24, 2020, S262011 (Torres), People v. Smith (2020) 49 Cal.App.5th 85, review granted July 22, 2020, S262835 (Smith), and People v. York (2020) 54 Cal.App.5th 250 (York)
[reaching the opposite conclusion].) As we will explain, we agree with the Gomez/Galvan line of decisions and hold that a petitioner with a pre-Banks/Clark finding is ineligible for relief under section 1170.95 as a matter of law. We therefore affirm.”

Please do not “in this county me”

copyright me

This just in. There is no principle of law that says the state or federal constitution, or the penal or evidence code, do not apply because “in this county” we don’t follow that law. I’ve heard this re timely discovery, I’ve heard this re diversion, I’ve heard this re discretion. Sorry, that’s not a thing. I get it that it’s not wise to be a dick to a judge for doing whatever he or she and attorneys have informally agreed to do. Fine. Accept that on things like who calls what case when or whether you defer to the deputy on letting your client smile at his family. But no. Do not defer to that on any exercise of discretion.

To be clear, a trial court cannot deny a motion or impose some kind of probation condition or sentence (generally) merely because it is “standard practice.”(People v. Hernandez (2011) 51 Cal.4th 733, 744 [re heightened security measures during trial: “The court’s reliance on this standard practice, instead of on individualized facts showing that defendant posed a safety risk or flight risk, or a risk of otherwise disrupting the proceedings, was an abuse of discretion.”]; People v. Penoli (1996) 46 Cal.App.4th 298, 303 [“The court’s “standard practice” represents not a case-specific application of sentencing discretion, but a preconceived determination applicable to all cases in which the question might arise. Adherence to this practice constituted an erroneous failure to exercise the discretion vested in the court by law. (See People v. Jasper, supra, 33 Cal.3d at p. 935, 191 Cal.Rptr. 648, 663 P.2d 206 [if trial court had “routine practice” as to discretionary scheduling matter, it was improper]; Mark F. v. Superior Court (1987) 189 Cal.App.3d 206, 210–212, 234 Cal.Rptr. 388, review den. [probation department abused discretion by applying inflexible policy of denying probation to juveniles charged with drunk driving]; cf. People v. Preyer (1985) 164 Cal.App.3d 568, 574, 210 Cal.Rptr. 807 [discretionary ruling must be assessed on particular facts of case, not statistics]”.)

I assume if you object to that “standard practice” justification it’s an easy fix for the judge. But please do object.

Of course, no problem with us “standard practicing” shit. Have I mentioned we should “standard practice” object to search and seizure clauses in felony cases? S&S probation terms have to be related to the crime people. A 422 has nothing to do with concealing evidence or fleeing police; how does that justify a search condition for probation? General deterrence or monitoring someone for compliance with probation is not narrowly tailored to the defendant. Again, that’s a standard practice one size fits all exercise of discretion. And that’s not a thing. (People v. Keller (1978) 76 Cal.App.3d 827, 838-839 [search condition where conviction was petty theft unconstitutional][disapproved of on other grounds by People v. Welch (1993) 5 Cal.4th 228, 237].) Note, there are really bad cases too, but i’m not here to distinguish i’m here to encourage.

There’s a great case that even says you can’t authorize a phone search just to monitor if someone is complying with a stay away order. (People v. Valdivia (2017) 16 Cal.App.5th 1130, 1147 [“[w]e cannot say that it is reasonable to allow law enforcement officials to cull through all such information on defendant’s devices, without limitation, because of the remote possibility that somewhere in that information evidence of” a violation of the protective order].)

Please do not “in this county” the 4th amendment thank you.

Also PSA to DAs, I do not care about how long you’ve been a DA. Just because you’ve been violating the law for that long or were totally ignorant about a law for that long does not mean you’re right. That isn’t an actual legal argument.

2nd PSA check me out on TikTok jennybrandtlaw and let me know if there are issues you want me to address. Just. Like. This.

Two shitty Fifth District opinions today

People v. Hernandez (Oct. 14, 2020) Case Number F080131. Fifth District. If your sentence from a plea agreement includes a 667.5 enhancement, the priors/enhancement must be stricken under SB 136 (duh), but the DA is allowed to agree to modify the sentence or WITHDRAW from the agreement on remand.

People v. Cervantes (Oct. 14, 2020), Case Number F077943. PC 859.5, which requires police to record a confession if it is a homicide, is not retroactive.

Shout out to my trial lawyer heros!

Sharing this here, objection, preservation of issues cheat sheet, and how to federalize resource. I wish I had this when I was loosing sleep over my no driving DUI trial lol (hence why I couldn’t be a trial lawyer.) Shout out to those who take this work on, battle the kangaroo wild west trial courts, and fight so hard, under the most extreme pressure possible.

I came across a great pdf “cheat sheet” from the appellate project on preserving issues in trial and another one on federalizing common issues. Links below. I’d highly recommend checking the san diego appellate project’s “topical index” if you ever want to find appellate project resources on any particular topic…link below. Each appellate project website has a TON of helpful pdfs, which I often copy and past from.,,,,

topical index:…/Website_articles_index…

Objection cheat sheet:…/preserving%20record%20cheat…

federalizing objections:…/semi…/FederalizationChart02-05.pdf

In defense of self-defense

First post here, thanks Jenny for the invite! Jenny and I just finished up another massive brief as team JennBess, BrandtStiff?, MachtBrandtelman? We’ll leave naming the team for another day. Among many fun arguments, we asserted the right of self-defense to vandalism charges. As there’s no California law on this, we thought it worth sharing the argument. Let’s make some law?

The self-defense instruction, CALCRIM Number 3470, does not limit itself to a defense against any particular crime such as battery or assault. Instead, the instruction focuses on the conduct alleged.  Thus, by the very terms of the instruction, self-defense is an affirmative defense to any crime. (CALCRIM No. 3470; see also Witkin California Criminal Law, Fourth Edition § 67, [“[s]elf-defense may be a justification for acts that would otherwise be criminal.”]) Self-defense turns on the reasonable belief and conduct of the accused, not the nature of the harm or specific consequences. As further explained in the context of transferred intent, self-defense negates the element of criminal intent towards a perceived aggressor. (See People v. Mathews (1979) 91 C.A.3d 1018, 1024, 154 C.R. 628 [the lack of criminal intent toward the aggressor is transferred to the unintended victim]; People v. Levitt (1984) 156 C.A.3d 500, 507, 508 [unintentional killing of or injury to third person during attempted self-defense].)

Self defense is, thus, available for all charges in which the elements are met. (See, e.g., People v. King (1978) 22 Cal.3d 12 [right to self defense in 12021 charge, felon in possession]; People v. Kirk (1986) 192 Cal.App.3d Supp. 15, 19 [Self defense is an available defense to a charge of brandishing a weapon under Penal Code section 417(a)(2).]); People v. Adams (2009) 176 C.A.4th 946, 954, 98 C.R.3d 383 [right of self-defense applies in context of citizen’s arrest and may be shown where person acts in reasonable apprehension of imminent danger; person need not “wait for first punch” before defending self];  CRLDEF § 132, Criminal Law Defenses, Justification Defenses [A defendant may assert self-defense as an affirmative defense to crimes requiring intent, knowledge, or willfulness].)  Additionally, the right of self-defense is available even when the threat is not from another person. (People v. Lee (2005) 131 Cal.App.4th 1413 (2005) [“It serves no public policy, and is neither logical nor fair, to deprive appellant of the defense of self-defense because the threat of imminent harm came from a dog and not a person.”].) 

Although the undersigned counsel is not aware of any cases specifically involving the charge of vandalism here in California, as this is fundamentally a common law right, decisions in other jurisdictions are instructive. As the court explained in State v. Arth, (2004) 121 Wash.App. 205, in a case involving damage to a car, like that here, “the mere fact that the ‘use of force’ in a particular case does not actually reach the aggressor, but rather damages the weapon, is not relevant as long as the force is used toward the person of another. Because the statute suggests the use of force in this situation may be lawful, a defendant must be allowed to defend against criminal liability for the results of the force—whether it is damage to property or to a person.” (Id. at 210.) The Arth court further articulated the clear policy justification for allowing the defense when the damage is to property and not a person. The court explained that to rule otherwise “a person who defends himself could not assert self-defense if he used the least possible amount of force to prevent an attack by damaging the weapon rather than the person, while a person who used the greater amount of force to injure the person would have the defense available to him.” (Id. at 210.)

As that State of Washington decision in Arth was a case of first impression in that state, the court looked to an analogous Texas decision. (See Boget v. Texas, (2002) 74 S.W.3d 23 [citing JEROME HALL & GERHARD MUELLER, CASES AND READINGS ON CRIMINAL LAW AND PROCEDURE 663 (2d ed., Bobbs Merrill 1965) [arguing a person can use self-defense to justify other offenses-including offenses against property].) The Boget case is also similar to the facts here. In that case, the defendant was accused of shattering a car window with a flashlight. Testimony was presented that the truck was driving recklessly and posed a threat to the defendant. The court explained that, “[i]n Boget’s case, had his flashlight gone through the window and hit Palacios, he would be entitled to a charge of self-defense in an assault prosecution. It would be illogical to deny him the instruction simply because his force didn’t actually land on Palacios. The relevant inquiry is whether he directed his force against another.” This is indistinguishable from the facts here. . . .

Other states and federal courts that have examined the issue similarly find that self-defense is available for crimes involving property damage. (See, e.g.,  United States v. Young (5th Cir.1972) 464 F.2d 160, 164 n. 6 [explaining that “an intentional act of damage or destruction may be justified–for instance, by necessity or in self-defense. Such justification for the act of destruction would negate the criminal mens rea . . .”]; People v. Coahran (2019) 436 P.3d 617 (Colorado court remanded case involving kicking of a door for new trial where trial court refused self-defense instruction for felony mischief charge.]; D.M.L. v. State (2008) 976 So.2d 670, 673 [explaining that defendant “ was using force in self-defense against Cory when Cory swung the bat at him and that is when the damage to the truck occurred. The trial court erred [in concluding the defendant] could not assert a defense of self-defense in these circumstances.”]; Seibold v. State (Alaska Ct.App.1998) 959 P.2d 780, 781–82 [defendant charged with malicious mischief for destroying a handgun he took from a woman arguing with her husband was entitled to jury instructions on necessity]; People v. Grass (1984) 126 Ill.App.3d 540 [defendant charged with felony criminal damage to property asserted self-defense and self-defense instruction presented to the jury].)

righteous rage

At the risk of writing a carrie-bradshaw-but-criminal-defense-attorney-carrie-bradshaw-post, I’m going to address an issue unrelated to the law itself. That is reconciling the rage, and actions that flow from that rage, and (let’s be honest, actions that flow from rage when you have an impulse control issue), with the obligation expectation to be professional.

Sometimes I get very very very angry in this work. And then I react. And then I feel guilty and obsess over how I over reacted, or was an asshole, or could have obtained the same result in a much more pleasant way that did not burn a bridge. Don’t get me wrong. I’ve never 422’d anyone. I’ve never cussed out opposing counsel or a judge or a client. So, I have that going for me. But, I have written some fiery emails. I have threatened to go to the press and followed through. Spoiler alert: the press doesn’t give a shit. I have threatened to go to the bar (which I’ve had to do 1 time in 10 years). I have threatened to go to a supervisor, which I do now before going to Xavier Becerra himself, which I also did. (Btw, going to the supervisor an Becerra, in either order, worked, both times.) I have cried after hearings. I’ve held back tears during hearings. I can’t remember if I’ve cried during a hearing but I wouldn’t put it past me. I’ve made mistakes and got mad at the other person without realizing actually I was the one in the wrong. I get mad when the AG or DA doesn’t realize my client is a human being with a family and write an email I later regret. And then I obsess over whether one day that email will come back to bite me. Nothing too bad. Just something along the lines of “it would be nice if you remembered that my client is a human being.”

Invariably, I later regret how I handled the situation. I process it. I promise myself next time I’ll pause before sending. Next time I’ll run it by someone else. Next time if going about it in this manner, does not serve an intentional tactical purpose to benefit my client, I’ll just let it go.

And then next time i fall back into the same chain.

I wonder if all attorneys feel like this. Of course it isn’t unique to regret saying things you don’t mean or that you overreacted. But it just seems sometimes that other attorneys get fiery too and they just own it. Like it doesn’t even occur to them that they should wrestle with their heart over whether they could have been more professional.

I recently read that anger stems from entitlement. It stems from feeling entitled to have others treat you the way you expect, and, if they don’t, feeling entitled to have them make you feel better. If they don’t make you feel better, some folks have ways of coping with that rage in a healthy way. But other folks cope through lashing out. Because those folks cannot get past the part that the opposing party owes them something. The opposing party, therefore, deserves their rage.

As much as I hate to admit it, I am entitled, and lashing out is just a symptom of my inability to get past that part. I act entitled in my personal life for sure. But I also act entitled to justice. Entitled to my client’s liberty. Entitled to a trial lawyer answering my emails. Entitled to a prosecutor recognizing it is important that my client be released now because he has the credit, instead of having to wait 90 days in COVID infested prison merely because we need the paperwork to process for reasons that have nothing to do with his case. Entitled to have the AG understand before emailing me that an argument is unnecessary that it might just be necessary because black lives matter. Entitled to have the AG understand that I, and certainly my client and her family, want the court to hear in the tone of my voice that black lives matter when I describe the injustice that happened to my client.

Perhaps the rage really is stems from my belief that I, and my clients, and all human beings, are entitled to these things. It is Righteous Entitlement. Which, I suppose, makes the rage equally righteous. But, I promise, I’m working on it.

Important social media SDT Cal. Sup. Ct. case

Another Facebook subpoena case was issued in the California Supreme Court today (Facebook, Inc. v. Superior Court, S245203.) Unfortunately the Supreme Court would decide the real issues we all care about such as the constitutional/statutory issues because the Court was concerned about whether there was a good cause to issue the subpoena anyway. But, the Court set forth seven factors for trial court’s to consider when deciding whether to issue a subpoena for social media:

(1) Has the defendant carried his burden of showing a
“ ‘plausible justification’ ” for acquiring documents from a third
party … by presenting specific facts demonstrating that the subpoenaed documents are admissible or might lead to admissible evidence that will
reasonably “ ‘assist [the defendant] in preparing his defense’ ”?

(2) Is the sought material adequately described and not
overly broad?

(3) Is the material “reasonably available to the . . . entity
from which it is sought (and not readily available to the
defendant from other sources)”?

(4) Would production of the requested materials violate a
third party’s “confidentiality or privacy rights” or intrude upon
“any protected governmental interest”?

(5) Is defendant’s request timely?

(6) Would the “time required to produce the requested
information . . . necessitate an unreasonable delay of
defendant’s trial”?

(7) Would “production of the records containing the
requested information . . . place an unreasonable burden on the
[third party]”?