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.

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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