today’s cal-crimlaw opinions and the cutest bestest Judge on the 9th Circuit Effed Us!

Today’s *noteworthy* Cal Crim Law Published Opinions :


DA blows off the probation revocation hearing for no good reason? No big deal. DA doesn’t even pretend to justify the delay? Who cares! No remedy for you!

Have a client charged with Penal Code section 386 violations? Ya, me neither. Here’s an opinion on a crime I’m guessing you’ve never seen.

If your client wants to withdraw his plea because the court did not inform him that there could be immigration consequences to the plea,  the question on appeal for the denial of the motion to withdraw the plea is not would he have been convicted anyway. It is if he had that information, would he have pled? Not sure how the appellate court effed that up.  Old news.  Update: my colleague does not think this was old news. She thinks the was fuzzy until this opinion. I don’t agree. Which is why I was I did not understand why the Supremes had to take that up decided to publish this opinion, but it is possible the Supremes publish everything ( I do not know whether they do or don’t?) and summary reversals are apparently very rare in California cases.

Finally, check out the redonkulous protective order in this death penalty case out of la regarding the nondisclosure of several witnesses names (pg. 27-27).  Wow.  Defense doesn’t even get the initials of 11 prosecution witnesses, 10 of whom are complete strangers to the defendant, until 15 days before trial at which point the defense gets the chance to interview the witness with the prosecutor present (that’s nice at the very least but what about investigating these people’s credibility through other methods besides talking to them?).  Totally ok according the Supremes. Bonkers. This guy is facing death and his lawyers don’t get to know who is accusing him until 15 days before trial? WTF?? Update: I’d also note the the Supremes did absolutely no analysis of the facts that would justify such an order, and if the order was justified in this case.  The analysis was all about how D’s counsel sort of agreed to the order and D was not harmed by it.  Which scares me because there is no oversight over whether this order was proper; what’s to prevent any judge from issuing an order like this upon no or entirely speculative showings of safety threats to witnesses if no one reviews the justification of the order?

*Noteworthy* crim law published opinions in the 9th Circuit over the last few days:


The ninth circuit issued 3 crimlaw opinions in the last few days worth mentioning, including one from my most favoritest 9th circuity judge, Pregerson, that is absolutely awful!!! Dear J P, how could you? This Judge is awesome 100% of the time, I refuse to believe that he is responsible for this shitty shitty opinion. Shitty for two reasons.

1) it says images that are clearly (at least in the description) nude photos are child porn.  or, more precisely, it was not an unreasonable application of clearly established Supreme Court law for the state court to say that photos that are simply nude photos of children are child porn. Bizarre. For my non crim law readers, obviously you would agree that a picture of your child’s butt as he runs through the sprinklers, or those nude photos of your child in your bath tub are not child porn.  There is a difference between a photo of a child who happens to be nude and child porn.  But, apparently, not so for this dude.

2) get this. Prego says that if you take a photo of a child’s face and you morph it digitially onto a photo of someone doing something sexual, that is child porn. Whaaat??? The whole reason child porn can be banned without violating the first amendment is because the first amendment right is trumped by the harm to a child being sexually abused.  Prego says that if a photo is morphed then there is a psychological harm to the child. Whaaat? Since when is this the rule? prego hides behind AEDPA saying it is not clearly established supreme court law that the first amendment protects a person from prosecution for possessing morphed photos when the photo involves an actual child’s face.  I hate when judges hide behind AEDPA. Totally intellectually dishonest and too easy. Also, Clinton, Fuck you for signing AEDPA into law.

Newsflash: you could be IAC if you promise the jury in opening that a certain witness will testify and you later don’t call the witness without explanation.Though this attorney wasn’t because his words did not amount to a promise.

This dude just got his 254 year sentence, imposed for a crime he committed at 16, reversed thanks the US Supreme Court ban on LWOP for non homicide crimes committed when the person was a juvenile.  254 years is functionally equivalent to LWOP according to the court. Thank you for acknowledging that.

JJC VERDICT: Interesting week in appellate land.

Published by Jenny Brandt

About Me: sociology, african american studies, chicano/a studies, critical race studies, and criminal law scholar. public school kid from kindergarten-J.D. Former public defender. I am a post-conviction guru. Appeals. Sentencing. Withdraw Pleas. Habeas. Published author in the Criminal Law Bulletin and California Defender. "I do it for the joy it brings, because I'm a joyful girl, because the world owes me nothing, and we owe each other the world." Why I started JJC: My PD buddy suggested it. What and who JJC is inspired by: public defenders I have worked for, with, and next to. my clients who have battled things no one should and are still here. innocence and guilt and everything in between. My coworkers, who fight just as hard as the PDs I love, for many of the same reasons. My husband who was once voted "most Christ like" (every Jewish girl's dream). My Corgi who loves everyone. The constitution. Tabloids. My mom, for giving me a voice. My dad, for teaching me what to say. My brother, for teaching me how to say it.

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