Your Daily Defense

Today’s daily defense is one that rarely arises. It is, though, worth knowing about.  I haven’t been at this that long and it has come up for me one time.  The DA conceded the issue when I 995’d it. I call this defense the “transactionally related” rule.

The Situation
You are PUMPED because the judge discharged a few counts after the px. You get the information.  You see the discharged counts added to the information. You do some research and see that the DA cannot refile discharged counts if the judge made a factual finding that would prohibit refiling. Such as a rape case where the judge makes a factual finding that CW is lying.  Bat’s chance outta hell nowadays.  Anyway, the question is, can the DA add new charges to the information when D was never held to answer to them even though there was evidence of that crime at the px?

Another situation is the case proceeds very quickly.  The complaint does not charge everything it can.  The DA doesn’t amend it.  Many other crimes are revealed at the PX.  When the DA files the information she adds charges for offenses that the evidence at the px established even though, technically, D was never held to answer to those charges. Can she do that?

The rule:
The DA can only add charges to the information for which D was not held to answer if 1) there was evidence of the charge at the px AND 2) the offense is transactionally related to the offense for which D was held to answer.  Don’t despair. “Transactionally related” is MUCH MORE NARROW than you think.  IT IS NOT the same as “a course of conduct.”  See more below.

The reason for the rule:
California’s constitution guarantees criminal defendants in a felony matter to be free from prosecution for offenses unless a magistrate or grand jury has determined that the prosecution is justified. (Parks v. Superior Court(1952) 38 Cal. 2d 609, 611; Cal. Const. Art. 1, Section 14.)  In tension with this rule is that, if the DA goes by way of px, the DA is allowed to charge in the information offenses to which the defendant was not held to answer.  (Penal Code section 739.)  There is a tension because if the DA can add charges to the information that D was not held to answer to then, technically, a magistrate has not determined that the prosecution was justified.

To resolve the tension between these rules, the California Supreme Court held in Parks that the DA may only file offenses for which the defendant has not been held to answer if those offenses are “related crimes shown by the evidence taken before the magistrate bearing on the transaction involved in the commitment order.”

What is the “transaction”?
Surprisingly, with the exception of a some bad sex cases (man sex cases always result in the worst law), the law is very good on how narrow a transaction is. If the offenses are distinct and separate, even if they are part of a course of conduct, they are not transactionally related. (Mulkey v. Superior Courtsupra, 220 Cal. App. 2d at p. 824.) (Mulkey v. Superior Court, supra, 220 Cal. App. 2d at p. 824.)

Here are some examples of cases where the court said the added charges were not transactionally related:
  • Parks v. Superior Court (1952) 38 Cal.2d 609.  D supposedly did a bunch of fraudulent transactions with different people.  The DA only proved one incident with one victim at the preliminary hearing, although the complaint had initially alleged offenses related to 2 other victims.  D was held answer to the offenses related to only one victim.  The DA filed an information with the offenses for all 3 victims. The court said that it does not matter if this was a course of conduct, the offenses involving the other two victims were not part of the same transaction as the one that D was held to answer.  
  • Mulkey v. Superior Court (1963) 220 Cal.App.2d 817.  D was charged with several counts for cashing stolen checks made out to him as the payee at several different stores.  Each count involved a different incident in a different store.  The checks were all stolen from D’s brother and all made out to D as the payee.  D was not charged with the theft of the checks, only uttering a forged check.  Only one victim could identify D.  The judge discharged the counts where D was not identified.   The DA filed the information adding the charges that were discharged.  The appellate court said it doesn’t matter that the checks were all stolen at once and that D was the payee in all the checks.  Because each presentation of the forged check for cashing was a separate a distinct offense, they were not transactionally related, and the DA was barred from charging them.
  • People v. Saldana (1965) 233 Cal. App. 2d 24: just because offenses occurred simultaneously they are not transactionally related.  D charged in the complaint with rape.  At px it came out that he had a joint in his pocket during the rape.  DA adds to the information a count for possession of marijuana.  Held:  That D simultaneously committed the rape and the possession of marijuana was insufficient to establish that the offenses were transactionally related.  Because there was no causal connection between the offenses, they were not transactionally related. 
  • Ondarza v. Superior Court (1980) 106 Cal.App.3d 195: Factors to consider when evaluating whether offenses are part of the same transaction are if the crime added is dissimilar to the offense for which D was held to answer and if different individuals were involved in the different offenses.  The allegations were that D offered to sell an undercover cop a stolen leather jacket and gave him the phone number of someone from whom the officer could by cocaine.  The magistrate discharges the cocaine sale count on a legal, not a factual, basis. The DA refiles the cocaine sale count. Cheapest sale of cocaine charge ever.  Anyway, the appellate court said it doesn’t matter that he negotiated the sale of the jacket and the sale of cocaine in the same financial transaction; the offenses are just too different, involving different people (e.g. the third party who sold the cocaine) for the offenses to be transactionally related under the Park test.
Here are examples where they were transactionally related:
  • People v. Evans (1952) 39 Cal3d 242.  Not a lot of analysis. D was charged with 288 in the complaint. After the px the DA added 288a and assault with a deadly weapon. The court said this was ok.  There really is not any analysis of why or distinction from Parks, this is all they say: ” The Parks case is controlling here inasmuch as the story told by the complaining witness shows that the two crimes were related to and connected with the transaction which was the basis for the commitment order.”  The story was that D grabbed her leaving a park, exposed himself, and molested her a knifepoint.
  • People v. Downer (1962) 57 Cal.2d 800. D was charged with offenses related to molesting his daughter.  The DA added charges to the information that were not on the complaint for an incident on a different date than those in the complaint.  The court said that this was fine because the crime, although different from the others that D was held to answer to, bore on the same transaction of those in the commmitment order.  Again, weird and not very clear why when this was a completely separate event and Mulkey explicitly states: “Admittedly the circumstances do show a ‘course of conduct,’ but this in itself is not a sufficient showing of a related or connected transaction justifying the added counts in the information… To allow the showing of a ‘course of conduct’ to constitute sufficient relationship to permit the added counts would be a return to the discredited approach in People v. Wyatt, supra, 121 Cal.App. 180, 8 P.2d 901, and throw constitutional doubt on the procedure. (Parks v. Superior Court, supra, 38 Cal.2d 609, 241 P.2d 521.) “

What if you win?
In my experience, if you win a 995 on this issue but other counts remain it is a great time to resolve the case (unless the other counts are defensible, obviously).  My husband, who I explained this rule to, asked me a question that had not but should have occurred to me. Let’s say you win the 995 on this issue.  Then what? Can the DA make a motion to ask the judge to review the preliminary hearing transcript and issue a holding order on the charges she wants to add to the information, assuming that the evidence is there? Or are you entitled to a whole new px? So I thought about this a little more.  In scenario A, where the magistrate discharged a count or counts without making a factual finding, the DA — for practical reasons — cannot just go back to the magistrate to ask him/her to hold your client to answer on previously discharged counts.  Obviously the magistrate discharged those counts for a reason, so why would he/she then change his/her mind and hold D to answer to them?

In scenario B, though, where the prosecutor added charges that were not discharged and never in the complaint, what would prevent the prosecutor from requesting a holding order on those charges to cure the procedural defect of not asking for said holding order before filing the information? I do not know, I need to research it and I’m not sure if the answer is out there. 

big plans

It is no secret that I have big plans for and ideas for JJC. There is not enough time in the day. If anyone wants to guest blog email me. My big idea that I am pumped about (but that will take a very long time and amount of research and work) is to do a shit ton of sunshine act and FOIA requests for police procedure and policy manuals and make them downloadable here. I’m also thinking about requests for DA policies and training materials e.g. their Brady discovery policy. I also want to research how these rules apply to private third-parties who are government contractors (e.g. CVT lab), and if they apply to them, do similar requests there.
Now, proposing this here might demonstrate my ignorance because I may do all the work just to learn I will get nothing because of some statute.  California’s public records statutes are the worst because our privacy laws are among the strongest in the country. But, it is worth a shot. If you have any knowledge on the subject, experience, ideas about what to request, or a list of departments to get them from, please email me at

Good lawyer or Good Luck?

So, I am going to start copying TMZ’s recurring posts where you look at an old and current photo of a celeb and vote whether you think that celeb looks the way she does today because of “good genes or good docs?”

I shall call this copycat recurring post “good lawyer or good luck?”  This refers to cases where someone (read: either named OJ Simpson or else is a white rich person, usually a former judge, cop, or da) gets a ridiculously lenient sentence or is acquitted.  I’ll spare you a good lawyer or good luck? on Zimmerman.

Today’s good lawyer or good luck? (vote at the end) comes from alameda county.  A few days ago it was CoCo with all the judges gone wild, today it’s AlCo!

Anyway,  I mentioned Judge Seeman previously. [insert joke about his name here.]  Here is his booking photo which makes me very sad:

Rumor has it that Judge Seemy walked off the bench where he was arraigning people on criminal charges to surrender himself to the DA and law enforcement in his chambers.  The government’s  2 year investigation [unheard of in a nonhomicide state case] culminated in felony charges against Seemy for elder abuse, perjury, 28 other felonies, and 2 misdemeanors (32 total charges).  All the charges related to financial transactions where he allegedly took, by one means or another, millions from his poor (well not literally poor) old lady neighbor.  She’s dunzo (read: dead) now.

Today, Judge Seeman pled no contest to felony perjury and felony elder abuse.  The remaining 28 felonies and 2 misdemeanors were dismissed.  His expected sentence in a case where he allegedly unlawfully put assets in his name or physically removed from this person’s home property and assets worth MILLIONS of dollars: just a lil probation. I use the term allegedly here because I do not know which transactions he admitted to.

Now, the DA, Nancy O’Malley, wants everyone to be clear that this is THE HARSHEST form of probation anyone has ever had! News sources quoted her as assuring the public that he is “not a free man” and is subject to the “extensive terms and conditions” of said 5 year felony probation. Newsflash, if I had a client facing 32 felonies for stealing millions of dollars, I’d pull a Mr. Strong and shit my pants in court if they offered him probation.  So I’m sorry dear DA, I ain’t pickin up what you’re puttin down.

I’d love to see these “extensive terms and conditions” and how they compare to the terms that EVERYONE on felony probation must consent to. But, I do not have the time to stop by alco and look at the court file. WINK WINK JJC reader in alameda county, check dat court file, scan that shit, and send to me!!! I suspect the terms are like dont commit a new offense, dont be a judge, dont be a lawyer, pay restitution, 4 way search clause. Sign here.

So, there is this question which is, if you are a defense attorney should you always be happy when someone gets no jail time? When someone gets acquitted? And if not, how do you justify that?

Ill tell you why I am moderately annoyed by this result.  We fight oh so hard to get judges, das and cops to understand that our clients made a mistake, that despite their worst acts, they have beating hearts, they have families, they have redeemable qualities, that they are human.  We beg for mercy. We beg for a second chance.  And, many times, often when we are representing a client we feel a lot of empathy for and almost never when we are representing a client that we personally dislike (the murphy’s law of criminal defense), these judges, das, and cops, think that justice requires just a lil bit of time in the joint (often times, a lot of bit of time in the joint). #bringingbacktheterm”thejoint”.

So, when a rich white judge rejects our begs for leniency, breaks the law and no one thinks his ass needs to spend just a lil bit of time in the pokey, it is, well, kind of annoying.  Insult to injury is that this person is not just any person. This person was entrusted in a position of power, a major position of power.  His job was to send other people to prison for the very law he was simultaneously breaking.  I’d love to see statistics on the average sentence he gave to people with 32 felonies or people convicted of felony perjury e.g. welfare fraud involving millions or people convicted of elder abuse fraud.  Alas, this isn’t federal so we can’t do that research very easily.  Judge Seeman breaking the law, especially by using his power and knowledge of the legal system to perpetrate the offense, is all that more egregious than our clients who never promised anyone they’d be choir boys.  Except our priest clients.  But that’s neither here nor there.  Of course, the flip side is he can argue it is unlikely he will reoffend.  We argue that too, often, and it falls on deaf ears.

One more thing that pisses me off. This mother fucker mfer (better mom?) got PAID over $100K from our lovely little taxes AFTER his ass was arrested.  I’m all for the presumption of innocence.  I am not pissed that he got paid. I’m pissed that Nancy O’Malley said this:Seeman has paid for his breach of trust as a judicial officer and, he has paid for his financial abuse of the elderly victim who has since passed away.”

Um, unless I’m  misreading the news stories or these reporters suck, no where have I read that part of the “extensive terms and conditions of probation” included repaying the taxpayers for the $130k that went straight to Seedy’s Seemy’s pocket.  Alls I seen was shit about paying the dead lady’s estate significantly less restitution than the prosecutor alleged was the loss figure (approximately $300k versus mcmillions).

At the risk of overusing this phrase, Dear Nancy O’Malley, we, as taxpayers, are still alive. How about you restitute (real word?) our wallets? Or how about you make him pay that money with one of those giant checks made out to you then use it for a training on “why we should show the accused mercy.”

JJC Verdict:  Dear Judge Seeman, Good luck.
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Dear Judge Castenellos (and JJC): Big Mistake, Big, HUGE

As a defense lawyer there are only three better words in the English language than “not guilty.”  They are, in order of frequency of actually hearing them: “dismissed” (sometimes, a lot more frequently on the day of trial in misdemeanor land); “granted” (assuming it is in response to your motion, in which case you can expect to hear this a few times a year) and “reversed” (almost never).  Today, straight outta the first district, reviewing an alameda county murder conviction, that almost never thing happened.

Long story short, the defendant got beat up by the victim’s friend, Ortiz.  The victim was with Ortiz when this happened. It was disputed whether the victim participated in beating up the defendant. The defendant went to his car. He got his gun.  The victim approached the defendant. The defendant said the victim reached for the gun. The defendant shot. Once. Victim died.  The coroner said the evidence was consistent with the victim reaching for the gun.

Note, the jury rejected self defense and imperfect self defense.  They convicted the defendant of second degree murder.

Pretty basic law is that if you kill someone because you were provoked by something that caused intense emotion that clouded your judgment (and a reasonable person would be similarly influenced by that provocation), you are guilty of manslaughter not murder.  (See CALCRIM No. 570).

It was agreed that right before the defendant shot the victim, the victim’s friend beat the shit out of the defendant while the victim was present.  Obviously, that the victim beat the shit out of the defendant right before shooting the victim, at the very least, raises the issue of whether the defendant was reasonably acting under influence of his emotion which clouded his judgment.  If he was, he shot the victim out of a heat of passion and is not guilty of murder, only manslaughter.  Pretty basic law. We’re not talking about the rule against perpetuity here.

Here though, Judge Castenellos (ALWAYS NAME NAMES But be sure you name the right name!!! thank you for the correction JJC reader) (I wish I could find her picture online to stamp REVERSED on, but couldn’t find one)  refused the defense attorney’s request for a provocation instruction, finding that the evidence did not support it. So the court of appeal sent Castenellos this message:

August 1, 2013

Via Published Opinion
Judge Castenellos
Alameda County Superior Court
At that Big Ole Courthouse by The Lake
Oakland, CA 94612

 Dear Judge Cartwright:

Very truly yours,

The Court of Appeal.

Of course, the attorney general said the evidence of provocation heat of passion came from self-serving testimony: that of Thomas. Sidenote, I think that it is super unfair to argue that a defendant’s testimony is “self-serving.”  No shit, of course anytime he testifies in his own defense it is self-serving.  But that doesn’t mean it is false. You can’t infer it is false from the mere fact that his own testimony helps him because almost any time he testifies it will be to help himself.  Thats like us arguing to the jury that the DA’s entire case was self serving. Anyway, the appellate court skipped that point,  and simply said it was clear that, even assuming it was self-serving, there was a fight just before the murder, the defendant got hurt, the defendant was clearly still upset about it, then the dude got shot.  That, on top of the so-called “self serving” testimony of the defendant about his state of mind, meant that “the obvious deficiency in the instructions given by the court is that they are bereft of any indication that the jury could consider Thomas’s emotional excitement as a factor that could reduce his criminal culpability.” So. Fucking. True.

A word about the procedural history and shout out to Thomas’ public defender.  Rarely is the procedural history interesting.  In this case, it is.  Initially, the appellate court considered this argument, found it was error to not instruct the jury on this issue, but held the error was harmless.  They applied the state law test (Watson) for prejudicial error which asks: “whether it is reasonably probable Thomas would have received a more favorable verdict if the jury was properly instructed”.

The case went up to the Supremes who were like Dear Appellate Court (I’ll spare you the pretty woman youtube) you applied the wrong standard.  The rule is that, according to the federal constitution, if a defendant raises the issue of provocation as a mitigation to murder in a state where provocation mitigates murder to manslaughter, he is constitutionally entitled to be found not guilty unless the prosecutor proves beyond a reasonable doubt that the provocation doctrine was inapplicable.  Why does that matter? Because things. just. got. federalized.

When there is a violation of the federal constitution, the error test changes. It is much harder, at least in theory, for the government or the court to contend that the error was harmless. The test for a federal constitutional error is  Chapman (Chapman v. California (1967) 386 U.S. 18, 24).  That test is not whether there a bat’s chance out of hell  (another expression that I regularly use that I do not think is actually an expression) that the verdict would have been the same.  The test is: “whether it appears beyond a reasonable doubt that the asserted error did not contribute to the verdict.”

Interestingly, the appellate court said look, we can’t say how this would have affected the verdict.  The evidence clearly shows he, at the very least, is guilty of manslaughter, so the conviction for second degree murder is REVERSED. Dear DA, retry him ASAP or manslaughter stands.   Love, the appellate court. (Couldn’t find a youtube for this; dear readers, make one just in case this comes up again).

The procedural history is worth mentioning for two reasons.  First, as a very new appellate attorney who doesn’t know that much about appellate law but trying to learn, I sort of felt like this whole “time to see if there was prejudice” is bullshit.  I felt like courts of appeal will decide what they want to do and then say the error is prejudicial or not.  I am so happy that my preconceived notion has been challenged at least in this case.

Second, major props and big time shout out to the federal-constitution-preserving-PUBLIC DEFENDER (public defenders: infinity Yglesias: 0) Jim Cramer.  Disclosure: I do know Cramer.  Nothing makes me more happy than seeing an unlawfully acquired conviction reversed, but what comes close is when the reason for the reversal is because of an amazing job done by an amazing attorney with a great heart.  In the short time I’ve been an attorney, I’ve seen this happen 2 times already on 2 murder convictions.  Well done Cramer.  Well done Jim “Valiant Defense Counsel” Mann. I’d post a photo of Cramer with a cape and the words “HERO” across his chest, but I don’t have his picture either!

Well done Alameda County PDs. I believe, beyond a reasonable doubt, that the public defender’s office there have only more great things to come.

CORRECTION:  sometimes we (let’s be honest, I) make mistakes, in some ways like judge Castenellos made a mistake in this case. No, I did not fail to instruct a jury properly in a murder case.  I erroneously named judge Cartwright in the initial post of this article. Like my botched OJ Simpson prediction, I was DEAD wrong. A JJC reader nicely corrected me without saying “Dear JJC big mistake. big. huge.” and linking a pretty woman clip.  Thank you for your kindness. If only I were this forgiving of judges who, just like me, get it wrong some times.  Luckily for the world, no one goes to prison for 40 years when I fuck up on my blog. I think. In any event I apologize and promise to strive harder to get it right next time. Thank you for your patience!!

Court ordered therapy three times a week for 18 months!!! Doesn’t the 8th Amendment prohibit that?!??!

Poor L-Lo. The good news: she completed court-ordered rehab.The bad news: the rehab place sent a letter to the judge requesting that he order she do therapy three times a week, either in person or via skype, for 18 months. 

That is a lot of therapy!!! And if she’s doing it right, that is a lot of emotional energy.  
Cruel and Unusual?  To quote my favorite phrase from law school: “to ask the question is to answer it.”  My husband says that doesn’t make sense. So, I’ll answer my own question.  I don’t know if it is cruel and unusual. In all seriousness, of course it is not.
But, poor L-Lo has been through so much in court.  

Just cut the ginger a break already!!!

Which reminds me of this: (not safe for work!! and also sad):

 Sidenote, in my LA days I met this guy at a club and, as expected, he was a total asshole.

P.S.  Dear Shawn Holley, you know you are going to be on TMZ, ya think you coulda wore a suit???

P.S.S. Shawn Holley got her start as a public defender.  More proof that Yglesias is a moron. And you know JJC isn’t scared to tell him.  


Anyone starting to feel bad for him? I mean, he did get publicly shamed on above the law.  Ok, I’ll leave the poor guy alone. Startinnnnnnnnnnggggg Now!