I often seen transcripts where something happened that was super unfair, but no one objected because it is just something that happens every single day. I call this failing to see the water we swim in. We are in it. It happened when we were law clerks and no one said anything. None of our more experienced colleagues say anything. The judge doesn’t bat an eye. Usually our clients are tugging at our ears saying this is so wrong and we think “they don’t know anything about the law.”

But what I have found is that sometimes these run of the mill injustices actually do not have cases approving of their rote application. I have made creative arguments, but am shut down because counsel did not object, and why would counsel object on the basis of an argument there is no law on?

Here is my advice. Anytime anything fucked up happens anytime ever in any courtroom anywhere (did I say anytime, place, or universe) object. You don’t know what the objection is, fine. Say Due Process. List all of the amendments, there are only a few that apply to us anyway: 4th, 5th, 6th, 8th, 14th. And just cite the entire fucking California constitution, who gives a shit.

Here are some examples of things I’ve seen:

always imposing search clauses for felony probation, even though there is law saying it must relate to the offense…remember any probation condition should have both a constitutional and statutory (Lent) objection. (See People v. Burton (1981) 117 Cal.App.3d 283, 391 [search condition unreasonable under Lent factors where defendant was convicted of assault with a deadly weapon]; In re Martinez (1978) 86 Cal.App.3d 577, 584 [same]; People v. Kay (1973) 36 Cal.App.3d 759, 761-762 [search condition unreasonable under Lent factors where defendant was convicted of felony assault and felony battery against police officers]; People v. Keller (1978) 76 Cal.App.3d 827, 833-834 [disapproved of on other grounds by People v. Welch (1993) 5 Cal.4th 228, 237] [search condition unreasonable under Lent factors where defendant was convicted of theft of a ballpoint pen].)

various probation conditions such as: no association terms (gang members, felons), permission to move terms, support your family (statutorily authorized, such bullshit), too broad of stay away orders (if a prostitute can’t be banned from prostitution areas because too many men like to get their prostitutes everywhere (In re White (1979) 97 Cal.App.3d 141) come on folks, object)

Apprendi arguments for fines and special terms if they are based on factual findings by the court? E.g. DV fines if no finding was made that this was a DV victim … perhaps it is a sibling, is this a step sibling? Did the jury find this person was related by consignity? What about them apples? Fines are punishment! (People v. Delgado (2006) 140 Cal.App.4th 1157, 1168 [section 1203.097 probation conditions constitute increased punishment for purposes of ex post facto because they make otherwise discretionary sentencing choices mandatory].)

Why can’t you argue a 290 consequence in closing when the cases all say that 290 isn’t punishment? Disclaimer: there may be something saying you can’t argue it but I don’t know.

I don’t understand why we aren’t allowed to ask jurors during voir dire what verdict they reached in prior trials they were on? I did try to research whether this was a court rule or a case or what, but could not find anything. There must be a rule on this right? Because this happens every day. If there is, unless there is some kind of United States Supreme Court case saying it is ok, why not object under the 6th amendment right an impartial jury? It is very relevant whether they convicted or acquitted or hung before right?

package plea deals. I’m currently waiting to see if the Supreme Court will address my never addressed before claim that it is vindictive prosecution to make a plea deal contingent on a co-d accepting it because it punishes one defendant for someone else exercising a constitutional right. Lost this issue in the 2nd. Email jenny@jennybrandtlaw.com for briefing if you’re interested.

Equal protection. People. Equal protection is our best friend. Anytime your client is chirping about how it’s not fair that that dude is getting xyz and he isn’t your EPC alarm should be blaring. Sure, you probably aren’t going to win an EPC claim on the basis that Mr. Client says FNU LNU in Santa Rita murdered 5 people and was given CTS but my offer for petty theft is 8 years. However, there are many times I’ve seen EPC arguments that might be good. For example, possession of a concealed knife where it is in a sheath but concealed. Takes two hands to access. The only justification for a bar on concealed weapons under the 2nd amendment is because we want to prevent surprise attacks where someone approaches a dude and has no idea he has a knife. That is why it is ok to have a non-concealed knife. So wtf is the difference if a dude has to futz with his sheath in a concealed knife? Third-party guy will have warning because our guy is futzing with a goddamn sheath. Like right? EPC bitches. EPC.

Oh, what about the specific vs. general law argument?

What about the argument that the prosecutor improperly added a charge post-px…remember…it must be transactionally related to anything client was held to answer to. Inquire within on the law for that.

Also, I cannot emphasize this enough, DO NOT waive hearings/bench trials on priors. Frankly, I’m sure someone can explain it to me, but I don’t even get why we waive jury trials all the time assuming the issue was bifurcated. Jurors are fucking crazy. Who knows what they’ll get tripped up on where a judge is for sure finding that shit true. I would never waive a bench trial because judges are for sure finding that shit true. I’ve had more than one situation where a lawyer did not waive the bench trial and no one really noticed certain deficiencies in the prior packets. This is a sufficiency of the evidence issue on appeal (but note double jeopardy probably doesn’t apply.) Just make the prosecutor do their job, which they are always bad and lazy at doing anyway especially on this, and get your rubber stamp. We will sort it out later.

Finally, if you have something wacky and you do not know why. Email me. I’ll come up with something.

Until next week.

Just in case you fear no one can hear you through your mask, buy this !

people, the day is finally coming where we can have weed in the car without that giving cops carte blanche to search the car (People v. Johnson (June 15, 2020) C089373.) Pro tip: just make sure it is in a sealed container and not on your person. what is “sealed” remains to be seen….just don’t keep it out in the open. Best bet is to just keep it in the trunk but you do you. Also, for the love of god, please do not put your weed in “doses” ie separate ziplock baggies and please keep your dosing scales at home!

When my cantor sent an email calling on our congregation to support BLM, but was sure to include a paragraph condemning the “fringe” part of the protests and the “looters” and those being “violent” who are “taking advantage” of the moment, I was mad. I knew I was mad. I knew it was wrong. I could not immediately articulate why. When I started to see the same sentiment pop up on my various feeds, I became even more mad. I started to know why.

There is a lot out there on what is wrong with these comments which is best understood through looking back to their origin. And, Kareem Abdul-Jabbar’s la times piece, says it all.

But what occurred to me today, when I saw the video of the police murder of Rayshard Brooks is what i’m going to now call: white contingency. After George Floyd, many white folks were willing to sign on to BLM; at least more than originally. We are vocal about wanting to fight against racism, and to “listen” to black folks and try to do better. but there is a contingency: The victim must be perfect. Or must have acted perfectly. The resistance must be perfect. Or must be expressed through perfect means. Of course, white folks are the ones defining what is perfect. we define it on twitter and facebook and instagram…which is aggressive and violent in its own way….but also as lawmakers (paid by police unions), prosecutors (see, e.g. Jackie Johnson), judges (qualified immunity anyone?) and jurors (see zimmerman jury, goetz jury.)

When I finally linked these pieces together I realized why I was angry and tired of reading white folk posts purportedly supporting BLM and/anti racism but, in the same breath, being so sure to make sure that everyone is sure that we do not sign onto “looting” and “property damage” and “violent” protests which was being perpetrated by a “fringe” element. It’s white contingency. Dear white people: This Is Not Our Moment. It is not our moment to define what is justifiable use of force. We have done that. That is why we are here in the first place. This is not our moment to define what the most successful means of dismantling racism is. If we knew what that was and we were so committed to dismantling it as we say we are, then why the fuck are our racist systems so perfectly and solidly in place?

The contingencies themselves are so deep rooted in the racism that is the foundation of this country that white folks don’t even know what we are communicating when we repeat what is now a trite statement of an alliance—racism is bad, there is racism in policing, gotta do something about “systemic racism”, i’m with it. If we do not even notice that we are looking for any and every explanation except racism to help us understand why a cop shot a black man in this and any other murder, we have a lot of work to do. Hard same for not even being able to pause or to listen before inserting our voices about what must and should be done to “support” the movement and be allies or to bring about “real change.”

This is not the moment for contingencies white people. If we are going to say or do anything, there better not be a but.

Series on Netflix I started….first episode was about that Jenny Jones murder where a guy told another guy on that talk show that he had a crush on him and then the crushee killed the secret admirer a few days later. The series appears to be about public cases, not anything about how it is unfair to be tried in the media. Still, the first episode was great. The civil atty who later sued Jenny Jones for the decedent was a caricature of a plaintiff’s lawyer…like the Gloria Allred of personal injury. Was fun to watch. His cross exam of Jenny Jones is one for the books. Also this episode brought back fond memories of that time, Ricky Lake, Jenny Jones, Phil, Maury, Montell, Sallie. Oh and Jerry. I never got into Jerry. Flip side was I watched Maury until probably a few years ago.

This will be a recurring post about how to preserve issues in the trial court for an appeal. The most important thing, as always, is to federalize any objection. Cite the Fifth Amendment always. If your instinct anything is unfair, object under due process and let us sort it out later.

Yesterday’s tip is that we must ensure that any improper visual aid such as a powerpoint is in the court file. I’d suggest first requesting in an in limine that any demonstrative exhibits or visual aids be provided to the defense before presented to the jury. Even if denied, this will help argue on appeal that the problem could have been averted. Once presented to the jury, ask that it be added to the court file.

Today’s tip: when doing a motion for new trial try your best to get the judge to say that he/she already considered your arguments at the time you objected during trial. That is important because sometimes the objection during trial might not be especially clear. Raising it in a motion for new trial will not preserve the issue if it is the first time it is raised (besides suff of evidence.) You are truly setting yourself up for IAC if you raise it in the new trial motion but did not raise it at the time because what could be the tactical reason for doing that? It is of course, risky, to try to get the judge to say this because what if the judge says “no, you never gave me that theory before.” Ways to avert this might be to test the waters, at the very least saying “as I said at the time” in the midst of your argument, hoping the judge doesn’t correct you. Or, you could just go balls to the wall and if anyone claims it is a new theory say “no no no no, I did raise this perhaps it was ‘inartful’ but I’m sure everyone here knew what the issue was. This is just another way of saying ____”(then refer back to how you originally framed it.)

At the end of the day, we are all doing our best. It is so very easy to look at a record and say wow why wasn’t there an objection, or why wasn’t the objection under the right theory. That is why I always say to fall back on due process because it is a catch all. Just like you can always fall back on 352. But remember, 352 doesn’t do shit for anyone federally. So 352 has always got to go with DP.

This will be a recurring post about how to preserve issues in the trial court for an appeal. The most important thing, as always, is to federalize any objection. Cite the Fifth Amendment always. If your instinct anything is unfair, object under due process and let us sort it out later.

Yesterday’s tip is that we must ensure that any improper visual aid such as a powerpoint is in the court file. I’d suggest first requesting in an in limine that any demonstrative exhibits or visual aids be provided to the defense before presented to the jury. Even if denied, this will help argue on appeal that the problem could have been averted. Once presented to the jury, ask that it be added to the court file.

Today’s tip: when doing a motion for new trial try your best to get the judge to say that he/she already considered your arguments at the time you objected during trial. That is important because sometimes the objection during trial might not be especially clear. Raising it in a motion for new trial will not preserve the issue if it is the first time it is raised (besides suff of evidence.) You are truly setting yourself up for IAC if you raise it in the new trial motion but did not raise it at the time because what could be the tactical reason for doing that? It is of course, risky, to try to get the judge to say this because what if the judge says “no, you never gave me that theory before.” Ways to avert this might be to test the waters, at the very least saying “as I said at the time” in the midst of your argument, hoping the judge doesn’t correct you. Or, you could just go balls to the wall and if anyone claims it is a new theory say “no no no no, I did raise this perhaps it was ‘inartful’ but I’m sure everyone here knew what the issue was. This is just another way of saying ____”(then refer back to how you originally framed it.)

At the end of the day, we are all doing our best. It is so very easy to look at a record and say wow why wasn’t there an objection, or why wasn’t the objection under the right theory. That is why I always say to fall back on due process because it is a catch all. Just like you can always fall back on 352. But remember, 352 doesn’t do shit for anyone federally. So 352 has always got to go with DP.

Ive been vacillating between listening and screaming, crying and feeling warm at what I’m seeing, exploding then hating myself for not trying to change minds with gloves but instead with blows to the head, while doing so eloquently for sure, but what does eloquence matter when your words cut with a knife.

I will never land in a place where I know the right way. I will explode if I will, I will blog as an effort to pause, I will embrace my rage and impulsivity and probably hate and love that that is who I am.

A woman on a thread where I called a former neighbor a kkk style trump racist (spoiler alert: truth) said she knows this to be true about this woman but she is responding to her because there may be people who cannot speak up, or feel burdened to, or just need to see that everyone in our community doesn’t feel the same way. It hit me then that surely expressing myself with equanimity and white person myth-propagated “neutrality” has its benefits and will have the same purpose—if not to change the mind of an intentional or ignorantly “unintentional” racist, then to show anyone listening that this will not be tolerated.

I don’t purport to know how any and all black people feel when they read a racist post, but if there is a remote chance that there is one black person who a post or email will strike is watching, then my comments are my version of “better safe than sorry.” My version of being a white woman crossing the street when I see a black man. My version of privileging myself over dehumanizing the declaring. Because it is people like the posters, and mostly the “unintentional” racists, that threaten the lives of black folks most. People who pretend to be anti racist but who want to shine the light away from the work necessary to dismantle racism and instead put those perpetuating racism on a pedestal while appealing to racist tropes while pretending not to know or, even worse, not even knowing.

I’m here to scream. I’m here to cry after I scream and to hate my decibel level. But mostly I’m here to try. Just try. Try to be diplomatic like my brother, even tempermented like my husband, forgiving like my mother, but, most of all, passionate like my father. Try to change minds but not give up when I dont, and to allow myself to get a place of self loathing for not having control that I hate myself so much that I love myself.

Hear to listen [sic intended]. Here to rage. Here to speak and to scream while channeling soto devoci, to teach my kids the lessons i’ve learned but make them better prepared to win over minds. And, finally, here to accept that I am who I am and I can change if only I just try.

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.

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 juicejusticeandcorgis@gmail.com

(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.

Really, we need an appeals court to say a cop can’t stop someone for having a weird reaction to the fact that someone in an unmarked car is staring at her and following her, and because she is a woman who crossed the Mexico border recently? This dude is out of control. Thank you Fourth District for shutting this down. (People v. Mendoza E071835.)