Cal. Supreme Court today: good, great, bootsie AF

Good: Sanchez hearsay/confrontation clause issues are not forfeited if the case pre-dated Sanchez. People v. Perez, S248730.

Great: “We granted review in this case to decide whether a convicted defendant who is placed on probation after imposition of sentence is suspended, and who does not timely appeal from the order granting probation, may take advantage of ameliorative statutory amendments that take effect during a later appeal from a judgment revoking probation and imposing sentence. The Court of Appeal answered this question in the affirmative and, in light of a newly effective amendment to a sentence enhancement statute, ordered four of defendant Douglas McKenzie’s sentence enhancements stricken. We affirm the Court of Appeal’s judgment.” People v. McKenzie, S251333.

Bootsie AF: Copper doesn’t violate Sanchez by testifying a drug is Xanax from eyeballing the pill and comparing it his eyeballing of Xanax as described on online database. Are you kidding me?? People v. Vehyahmatahau, S249872.

Issue spotting: SB 620/SB 1393 resentencing hearings

I’ve seen a number of interesting issues come up during resentencing hearings for the court to exercise its newly afforded discretion to strike nickle priors or gun enhancements under SB 1393 and SB 620. So, I thought I’d share them. If you’d like citations or briefing contact me at

(1)  Dual use of facts: a court cannot rely on the same facts to justify imposing different enhancements. I think this principle should prohibit a trial court from declining to strike a nickle prior or gun enhancement on the basis of aggravating facts that the court relied on to deny a Romero motion or to impose an aggravated or consecutive term at the original hearing.

(2) Reliance on improper facts: I have two cases where judges declined to strike the enhancements after making comments about how the tide is changing and there are all these new laws benefiting defendants so it isn’t even clear that the defendant will serve the full term. This is an inappropriate consideration that, obviously, this is not an enumerated fact to consider in the rules of court on sentencing and there is zero relationship between new beneficial laws and the defendant’s conduct which is what the court is to consider when imposing a sentence.

(3) failure to consider the entire record if it is a new judge: I’m a bit unclear over whether a defendant has the right to a resentencing hearing in front of the same judge who originally sentenced him if this was a trial. There is no Arbuckle right to have the same judge who presided over the trial also sentence you. I would object to a different judge presiding (assuming he/she will be worse). I would also object on the basis that the new judge is not considering all of the appropriate documents or at least make a record as to what the judge is considering. Seems like the judge should consider the trial transcript, probation reports, and any original sentencing memos.

(4) failure to obtain a new probation report: It appears that a trial court does not have a sua sponte duty to obtain a new probation report prior to a resentencing hearing, or that it is statutorily required. However, the law is clear that a court may consider a defendant’s conduct in prison or any new mitigating facts when resentencing a defendant. I’d investigate whether there are any new mitigating facts and request a new probation report if there are.

Book Review: Jessica Simpson’s new book

Wow. What a great read. I have read my fair share of celebrity memoirs including Faye Resnick’s book selling out Nicole Simpson, RHOC can’t remember her name about her abusive relationship, Kendra’s book, Holly’s book, Chelsea Handler’s book, Sarah Silverman’s book, Andi Dorfman’s book (SOOO BAD), and probably some I don’t remember. This was the best. Jessica Simpson was abused, and alcoholic, was in a number of terrible relationships (read: John Mayer), and she did not hold back. I was never really a fan or not a fan, but I’m rooting for her.

(the way they were)

Book review: Know My Name

I read Emily Doe’s book “Know My Name.” She is the victim in the Brock Turner case. I have many thoughts.

First, much of what she said about the system applies with equal force to our clients. She really captured how we as attorneys can be so entrenched in the system that we forget that our clients have no idea what is going on or why. So, for example, if we continue to the case or if the DA continues the case, we fail to appreciate what a huge effect this will have on our clients or to consider how stressful the entire process is. We just write the new date on a slip and send them on their way. We should be sensitive to the fact that court dates completely disrupt their lives–not just in having to take off work or find child care–but also in mentally preparing for a stressful appearance in a case that is life altering for them.

What I thought she fell short of doing was stepping back and looking at the situation with perspective. She was so focused on the injustice that she made blanket statements criticizing the system without thinking critically about what the alternative would be. A world where we do not have due process. A world where there are no criminal defense attorneys for people accused of horrendous crimes. A world where innocent people are incarcerated for horrible crimes so that we can avoid re-traumatizing rape victims who were, in fact raped. And, a world where guilty people are convicted without the benefit of ensuring the process went fairly. If someone thinks he has been railroaded, even if he is good for the crime, we cannot expect that this person will reform.

Also, she never said what prison sentence she thought was just for Turner, only that 6 months was wrong and the probation officer twisted her words. She said she wanted treatment for Turner, but did not ask whether the treatment she envisioned would even be available if he was sent to prison, or express any insight or indignation into the fact that it would not be available at Santa Clara County Jail. She expressed outrage that he could afford an attorney and that he benefited from his privilege, but did not explain why someone should not be able to hire an attorney if he can. Would she have been less offended if he had a public defender and why does it matter? Why is the answer to having inequities in sentencing based on privilege to have harsher sentences for the privileged as opposed to lesser sentences for everyone, which are focused on restoration and rehabilitation?

I thought it was weird that the professor who was so vocal in this case (Daubert) essentially outed her as a rape victim by suspecting it was her and then contacting her to confirm. She did not take issue with this so I’m not sure it’s right for me to be offended on her behalf, but how did that professor know she did not take issue with this? What if anyone else had done this? It seemed intrusive, unethical, and hypocritical to me.

I would neither recommend nor not recommend the book. I skimmed through some of it and was captivated by other parts. I think it could have been more powerful if she looked more critically at the problems with our system, including how problematic it is to recall a judge just because you feel one ruling was unjust.