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].)
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.
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]”?
When I originally started this blog many years ago, before a hiatus, my goal was to do a ton of public records act requests so that I could have documents people could just download. such as police manuals, etc. I’m now doing CPRA requests frequently and it is basically the best and most fun thing ever. So folks, if you have ideas of public records you’d like but don’t have time to get, comment or email me firstname.lastname@example.org because I’m ready to rock and roll on this. Yes, I’ve thought about just trying to find a list of cops from every police agency in California and requesting all public records of misconduct under the new law for every last one.
Probation revocation reversed because even though hearsay was admissible at the contested hearing as a spontaneous statement, its admission violated Due Process. The record was silent as to why c/w didn’t testify and there was no finding of unavailability.
Guys, this is probably the most beautiful thing I’ve ever seen written about the admission of hearsay at a PV hearing:
“Because reliability bears directly upon the “significance of the particular evidence [proffered] to a factual determination relevant to a finding of violation of probation” (Arreola, supra, 7 Cal.4th at p. 1160), it certainly has a place in the case-by-case weighing of interests required by Arreola. But it is only one of several factors to be weighed, and it must not be assigned dispositive weight in all cases to the exclusion of other factors—which is what Stanphill does by creating a categorical test that turns solely on Evidence Code section 1240. While, unquestionably, excited utterances may be uniquely valuable as a form of hearsay, that does not mean they must be treated as effectively irrebuttable. “Dispensing with confrontation because testimony is obviously reliable is akin to dispensing with jury trial because a defendant is obviously guilty.” (Crawford, supra, 541 U.S. at p. 62.)”
Also, if you don’t love this you don’t love NBA basketball:
“Here on appeal, the Attorney General does not argue that a showing of good cause could have been made; nor does he contend that, had there been such a showing, it would have outweighed Liggins’s right to confront Roy. And he makes no attempt to argue lack of prejudice, under any standard. Because prejudice is uncontested, the error in admitting the challenged statements requires reversal.” #youhadonejob #doesnotORcannot ?
Below are the most recent stats I have for a COVID-19 bail motion. Additionally, here is the website from FDAP that has sample motions and habeas petitions:
As of July 23, 2020, the US had 3,952,273 documented cases of COVID-19 and 142,755 documented deaths. (See CDC website statistics, available at https://www.cdc.gov/coronavirus/2019-ncov/cases-updates/cases-in-us.html, accessed July 23, 2020.) At this point in time, there is no dispute that this is the worst global health crisis of any of our lifetimes, with the United States facing one of the world’s worst outbreaks.
After an attempt to slowly lift some of the shutdowns and stay-at-home orders led to a dramatic increase of cases, both in California and across the country, previous restrictions are back in place, with additional long-term massive restrictions and shutdowns across the United States in effect and planned. (See New York Times, As U.S. Coronavirus Cases Hit 3.5 Million, Officials Scramble to Add Restrictions, updated July 24, 2020, available at
And we know, that jails and prisons, like nursing homes, are among the most dangerous epicenters for the outbreaks. In fact, on May 13, 2020, the World Health Organization, along with committees of the United Nations issued a joint statement: “We, the leaders of global health, human rights and development institutions, come together to urgently draw the attention of political leaders to the heightened vulnerability of prisoners . . .” (available at https://www.who.int/news-room/detail/13-05-2020-unodc-who-unaids-and-ohchr-joint-statement-on-covid-19-in-prisons-and-other-closed-settings, accessed July 24, 2020.) In that statement, they also urged leaders around the world to reduce overcrowding, and advised that “[t]hese efforts should encompass release mechanisms for people at particular risk of COVID-19, such as older people and people with pre-existing health conditions.” (Ibid.)
“Currently, the nation’s top five Covid-19 hot spots are all correctional facilities, according to data collected by The Times. The number of infected inmates and workers has topped 70,000 — the count doubled between mid-May and mid-June — and there have been at least 627 virus-related deaths.” (The Coronavirus Crisis Inside Prisons Won’t Stay Behind Barshttps://www.nytimes.com/2020/06/25/opinion/coronavirus-prisons-compassionate-release.html.) Even these numbers are expected to be an undercount given the lack of testing of the incarcerated. (Ibid.)
Sadly, these efforts to protect the most vulnerable inmates, are often too late, and poorly executed. Back in May, when a federal prison delayed the release of two vulnerable inmates, ordered released by the court, one 60 and one 79, within a week of release one was dead from the virus. (See Freed From Prison, Dead from COVID-19, Not Even Counted Officials’ missteps at Butner made it the deadliest federal lockup, The Marshall Project, July 10, 2020, available at https://www.themarshallproject.org/2020/07/10/freed-from-prison-dead-from-covid-19-not-even-counted.)
And we already know what can happen when we fail to address the risks in prison. “A new analysis led by researchers at Johns Hopkins Bloomberg School of Public Health found that the number of U.S. prison residents who tested positive for COVID-19 was 5.5 times higher than the general U.S. population.” (available at https://www.sciencedaily.com/releases/2020/07/200708121423.htm.) The death rate is also substantially higher. (Ibid.)
As described in a heartbreaking report by Rachel Aviv, when investigating the conditions in a prison in Arkansas, the death rate in prison, and the spread to the community from prison is astonishingly grim, converting short sentences into death sentences. And those death sentences reach nearby communities, and families of prison workers. (See Punishment by Pandemic: In a penitentiary with one of the U.S.’s largest coronavirus outbreaks, prison terms become death sentences, Rachel Aviv, The New Yorker, June 22, 2020,available at https://www.newyorker.com/magazine/2020/06/22/punishment-by-pandemic) At the time of the reporting by Aviv, the failure to contain the virus in the prison led to that small town having the tenth largest outbreak in the country. (Ibid.) As Aviv explains:
[W]hen it comes to infectious disease, the harms of incarceration become visible . . . The boundaries of penitentiaries are porous: inmates come in and out, as do officers, medical staff, venders, lawyers, and relatives. Diseases come in and out, too. The risk of tuberculosis, for instance, is twenty-three times higher inside prison walls—poor ventilation, social density, and minimal sun exposure are fertile conditions for the spread of disease—but cannot be contained within them. A 2015 study in Emerging Infectious Diseases found that in Dourados, a city in Brazil, more than half the cases of tuberculosis among people who had never been incarcerated were linked to strains of the disease inside the nearby prison.
Jails and prisons are notorious amplifiers of infectious diseases, such that commentators see the reductions in these numbers as critical to curbing the pandemic on US soil. (See The Appeal, Why Jails are Key to “Flattening the Curve” of Coronavirus, available at
Prisons are a tinderbox for the wildfire that is COVID-19 for many reasons. For example, prisons and jails notoriously provide inmates with limited access to soap (See The Guardian, “’Historic health screw-up’: what you need to know about the Covid-19 crisis in California prisons,” [“inmates, correctional officers, and prison medical personnel have all complained about the lack of protective and hygiene supplies such as masks, gloves, hand sanitizer and soap.”], available at https://www.theguardian.com/us-news/2020/jul/03/california-prisons-coronavirus-covid-19-health as of July 24, 2020), and antibacterial gel is often banned because it is made with alcohol (see, e.g. Antonia Farzan, The New York Times, “Inmates are manufacturing hand sanitizer to help fight coronavirus. But will they be allowed to use it?”, (March 10, 2020), available at https://www.washingtonpost.com/nation/2020/03/10/hand-sanitizer-prison-labor/, as of July 24, 2020.)
Coronavirus also spreads through close contact between people, and prisoners are necessarily in close contact with one another especially considering that more than one inmate often share cells. In fact, CDCR is so overcrowded that some inmates are double-bunked in cells built for one. (Paige St. John, “Coronavirus Plan for California Prisons Raises Inmate and Advocate Concerns”, Los Angeles Times, (March 5, 2020), available at https://www.latimes.com/california/story/2020-03-05/coronavirus-california-prison-plan, as of July 24, 2020.)
The risk to life for inmates in CDCR is especially apparent because overcrowding has led to abysmal medical care for inmates. Indeed “[s]o many preventable inmate deaths occurred in [California’s prison system] was put under control of a court-appointed receiver in 2006.” (Paige St. John, supra, “Coronavirus Plan for California Prisons Raises Inmate and Advocate Concerns”.) This is especially troubling in the wake of Coronavirus because, at least at the facility where appellant is housed (California Medical Facility), there are some 2,500 sick inmates, but, at least as of April 27, 2017, there were only 121 medical professionals, with three of CDCR’s seven spots for primary care providers vacant. (Adam Ashton, “Unprecedented Doctor Shortage at California Prison Hurting Inmate Care, Audit Says”, The Sacramento Bee, (April 27, 2017), available at https://www.sacbee.com/news/politics-government/the-state-worker/article147241644.html, as of March 13, 2020.)
From the date appellate counsel filed the motion for OR in this case, to today—a period of just five months—the number of COVID-19 cases in CDCR have increased from 1 case, to over 7,000, with no deaths, to 47. (The Marshall Project, supra, available at https://www.themarshallproject.org/2020/05/01/a-state-by-state-look-at-coronavirus-in-prisons, as of August 2, 2020.) Although CMF has not exploded with COVID-19 cases, like San Quentin, it is only a matter of time. Within the last 14 days, there have been two cases. (CDCR, COVID-19 Tracking,available at, https://www.cdcr.ca.gov/covid19/population-status-tracking/, as of August 2, 2020.) 21 correctional officers at CMF tested positive for COVID-19. (CDCR ,CDCR /CCHCS COVID-19 Employee Status, available at https://www.cdcr.ca.gov/covid19/cdcr-cchcs-covid-19-status/, as of August 2, 2020.) For every one person infected, it is estimated that 2.3 or 5.7 more persons will contract COVID-19 (Cemal Bulut, et al., Epidemiology of COVID-19, 2020 Turk J. Med. Sci., abstract available at https://pubmed.ncbi.nlm.nih.gov/32299206/, as of August 2, 2020), a figure applicable to the general community, not taking into account the nuances of the increased rate of transmission in prison. San Quentin had no COVID-19 cases in May, and now, in just a matter of two months, has jumped to 2,184 cases (CDCR, CDCR Patients: Confirmed COVID-19 and Outcomes, available at https://www.cdcr.ca.gov/covid19/population-status-tracking/, as of August 2, 2020.) The total population of San Quentin is 3,178, meaning more than half of those incarcerated at San Quentin have, or have had, COVID-19.
The California Supreme Court has been clear for more than a century: where, as here, a defendant can show that his life is in jeopardy by incarceration, a court should release him pending the disposition of his appeal. (See In re Ward (1900) 127 Cal. 489, 490-491; see also In re Pantages (1930) 209 Cal. 535.) For example, in In re Ward, supra, at pages 490-491, the California Supreme Court held that circumstances of extraordinary character appeared, justifying the release of a prisoner pending appeal, under circumstances nearly identical to those here. In In re Ward, the defendant suffered from asthma, which implicated the health of his lungs, and which, if his incarceration continued, caused a chance of death. (Id. at p. 490.)
In In re Pantages, supra, 209 Cal. at p. 538 the California Supreme Court reached the same conclusion under similar circumstances, even though the defendant was convicted of the serious and violent crime of rape. In Pantages, the defendant suffered from a heart condition which suggested that serious injury or death was imminent. The Court held that the condition justified release because the defendant’s condition was so serious, and “his surroundings are such that not only his health but his life is in danger”. (Id. at p. 538.)
This Court should also consider the threat to public health if appellant is not released. Perhaps, instinctively, it might seem as if releasing one person from prison until COVID-19 subsides will not have a massive effect. But, that would overlook how contagious this disease truly is. For example, recently, 260 of 344 of those who had attended a summer camp tested positive for COVID-19 after just one staffer discovered he had tested positive after he had attended the camp for two days. (E.J. Mundell, “How COVID-19 Raced Through a Georgia Summer Camp, July 31, 2020, available at https://www.webmd.com/lung/news/20200731/kids-efficient-transmitters-as-covid-19-raced-through-a-georgia-summer-camp#1, as of August 2, 2020.) The photographs attached to the emergency bail motion in the federal action of CMF (SCT 57), show that appellant’s current housing situation is even worse than the camp because, at least, those persons were in separate cabins of only 15 persons to a cabin. (Mundell, supra.)
Basically, I’m always arguing IAC generally for failing to object. It’s lame. It’s like oh this lawyer said 352 but not due process. I mean the person got the point, objected, really….this is IAC? But I do what the law requires to get around waiver and I take no joy in that. I do it knowing ain’t no court is going to find that there wasn’t a 352 but there was a due process problem and trial counsel is Iac. Even if that happened, Ain’t no one getting disbarred over that bullshit.
It’s very easy to come up with a legal argument when you read a transcript, make notes typing wacky shit in bold (I literally write “is this an issue?” “weird”), spend weeks mulling over issues and talking to your client. posting on an appellate group….does anyone think it’s an issue? Researching cases and then realizing which facts need to be elicited to make a good record. There is no joy in arguing IAC in the scenario when, for example, someone argues involuntariness but not Seibert after I’ve spent 10 hours researching both and looking at interrogations after having researched the law extensively.
I’ve tried three cases. I lost sleep over a no driving DUI. Trial lawyers are heros who do what I can’t, and what many lawyers won’t.
But my one wish is that more often they would fall on their sword. I know many who do. They recognize they did their best, they missed the issue, and they want their client to win. They reply to my emails. They send me their file. They sign declarations. And they gladly do it.
When my clients insist on arguing a frivolous issues I refuse to raise, I send them a declaration for a habeas. Gladly. If I was negligent or wrong, more power to him. a State Bar Card is a sword our client’s don’t have. If they go down because we didn’t use it properly, it’s our job to hand it to them while trying to lift them up.
The State Bar has made clear to appellate projects that no one is being disbarred for IAC unless it’s like caused by cocaine on the job. Even then folks, come on. No one is getting disbarred for IAC. Also, courts are not in the habit of finding IAC.
So it is beyond me that my job requires harassing trial counsel for the file and to answer my questions. It is beyond me that the LA Public defender has a blanket policy that the appellate unit must review any answers to questions from successor counsel, and also will not turn over conversations they have about those answers. I’ve received answers months and multiple follow up emails later where it is clear that the attorney is making a bullshit tactical reason when the reality is (s)he simply didn’t see the issue at the time, which I dont blame her for.
At the end of the day each of us is doing our best. Trial lawyers preserve 99% of issues and I’m always looking for the one they didn’t. I spend hours, days, identifying issues, figuring out how decent they are, often speaking to multiple attorneys for their opinion. I still wonder why I didn’t move to dismiss under Brady in my second DUI trial. There’s no shame in recognizing this job is absurd and demands more than a human can give. Own it. Love it. Use on the privilege we have to do this work by falling on your sword.
I’m just venting. I’m venting because I’m currently harassing three trial lawyers about their files and to answer my questions. And the , when they ignore me for months, and I remind them of their state bar duties, I’m the asshole.