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.)

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.

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.

I thoroughly enjoyed the Aaron Hernandez docuseries on Netflix, until I saw a TMZ headline that his former attorney, Jose Baez, regretted participated in the film and thought it was poorly done. I decided to investigate further and read Baez’s book about the trial. And I was shocked. It became clear that the docuseries was focused on making Aaron seem like a violent murderer and on exploiting his sexuality for sensasonalist purposes.

Indeed, the series suggested that Aaron perpetrated a murder in Florida, without any evidence supporting the implication except that he “matched the description” of the shooter–the shooter and Aaron were brown and had a similar build. If this wasn’t flimsy and racist enough, the shooter was described is African American. Of course, Aaron is Puerto Rican.

Baez gave some shocking facts about the double murder investigation which were completely omitted from the series. First, a street sweeper was driving by at the time of the shooting and told police that he saw a female in the car where Aaron purportedly sat and shot from. Police did not tell anyone he said this and tried to get him to lie about saying it in a interview later on. They transported the BMW to the police inventory lot with the bodies in the car. Like what?????

EMTs contaminated the scene.

They did not find an independent witness who watched Aaron the night he was in the club because he was a fan. This witness later testified that there was no altercation or argument between Aaron and the decedents.

Aaron was rightfully acquitted. Because this did not fit with their storyline, all of the evidence showing he was not a killer was omitted from the series, leaving the impression that he is just another famous person who got away with murder.

My take away from Baez’s book about the first murder was that it was likely Aaron was good for it. Baez did not say that. He pointed out the weaknesses in the case. But, the weaknesses were not compelling. Of course, the verdict required jurors to believe a snitch. And it would be consistent with the evidence to conclude that Aaron was in the car when the shooting happened, but did not do the shooting. But why did he then tell his wife to dispose of a gun? Why was he so nonchalant after the shooting?

I was particularly disturbed by a deputy saying that Aaron acted as if there was no transition into jail as if he was a sociopath. Clearly, from the jail calls this wasn’t true. But because this fit perfectly within their narrative, it made it in the series.

It seems we are trending toward films that are taking an honest view of the criminal “justice” system. This film took us a million steps backward. It was racist. It was sensational. There was zero evidence suggesting anything that happened to Aaron had to do with being closeted, and the purpose of bringing out his sexuality was clearly because it is a sensational fact. Shame on Netflix.

Just leaving this here….

Cop lies about McDonald’s writing “pig” on his cup

Did a different cop falsely accuse a starbucks employee of writing pig on his cup? In any event, his daughter says he is a racist pig

Cop accuses McDonald’s employee of taking a bite out of his burger but actually just forgot he took a bite himself

Cops accuse Starbucks of “refusing service” to them…reality is that Starbucks employees just took five minutes too long in asking for their order

There has been much litigation over the constitutionality of SB 1391. SB 1391 eliminates the ability of district attorneys to try 14 or 15 year olds as adults. The DA’s claim is that SB 1391 conflicts with Proposition 57. Proposition 57 permits judges to decide whether to transfer 14/15 year olds to adult court.

Notably, the AG is not opposing the argument that SB 1391 is constitutional, so the DAs are briefing this as real parties in interest.

Every district, except one division (and not another) of the Second District have held that SB 1391 is constitutional: People v. Superior Court (Alexander C.) (2019) 34 Cal.App.5th 994, 997 (First District); People v. Superior Court (K.L.) (2019) 36 Cal.App.5th 529, 535 (Third District); People v. Superior Court (T.D.) (2019) 38 Cal.App.5th 360 (Fifth District); People v. Superior Court (S.L.) (2019) 40 Cal.App.5th 114, 121 (Sixth District); B.M. v Superior Court (2019) 40 Cal.App.5th 742 (Fourth District); Narith S. v. Superior Court of Los Angeles County, 2019 WL 6522737 (Second District, Div. 3.) Interestingly, there is a split in the Second District–Division 3 in Narith S. held SB 1391 is constitutional while division six held it is not. (O.G.) The California Supreme Court granted review in O.G., S.L., T.D., and I.R.

The reasoning in these cases is that the purpose of Proposition 57 was to ensure juvenile rehabilitation by channeling minors into the juvenile system, and SB 1391 furthers this goal. Read O.G. Probably the most intellectually dishonest opinion ever. Also they went out of there way to say how awful the crime was, calling the kid a “murderer” (I hate when courts label our clients), which is totally irrelevant. No shit he killed someone. We wouldn’t be here if he didn’t. Ironically they criticize the other courts, saying they are “enamored” with the way 15 year olds have been historically treated, saying this is “irrelevant.” Just an overall terrible opinion and I cannot wait to listen to Jennifer Hansen of LACAP argue the hell out of this case.

In an unpublished opinion filed yesterday (Salcido, E067578), the Fourth District held that trial counsel was ineffective for failing to object to an electronic search probation condition.

People. Object. Object to all kinds of probation conditions. Object to regular search clauses that are unrelated to the crime. Object to the vagueness and overbreadth of the bar on possessing “intoxicating substances.” Object to the vagueness and overbreadth of barring someone from frequenting places with alcohol is the primary item of sale. Object to conditions where the defendant has to obtain permission of the court to take a prescription medication/controlled substance. Object. Object. Object. Below are cases supporting probation challenges. Please email me at juicejusticeandcorgis@gmail.com for sample briefing.

General principles: probation condition that is vague or overbroad violates the Due Process Clause of article 1, section 7 of California Constitution and the Due Process Clause of the 5th and 14th Amendments of the United States Constitution. (In re Sheena K. (2007) 40 Cal.4th 875, 889-890.)  A probation condition is vague or overbroad if it delegates its terms to be defined by the government “on an ad hoc and subjective basis.” (In re Sheena K., supra, at p. 890.)  This Court reviews constitutional challenges to the probation condition de novo. (In re Sheena K., supra, at p. 878.) A condition is void-for-vagueness unless it is “‘sufficiently precise for the probationer to know what is required of him, and for the court to determine whether the condition has been violated.’” (Id. at p. 890 [quoting People v. Reinertson (1986) 178 Cal.App.3d 320, 324-325].)  A condition is unconstitutionally overbroad if it implicates a probationer’s constitutional rights and it is not narrowly tailored to achieving rehabilitation or public safety. (In re Sheena K., supra, at p. 890; In re White (1979) 97 Cal.App.3d 149-150.)

Probation conditions are not valid just because they can generally deter crime. (People v. Keller (1978) 76 Cal.App.3d 827, 838-839[2] [disapproved of on other grounds by People v. Welch (1993) 5 Cal.4th 228, 237]; People v. Perez (2009) 176 Cal.App.4th 380, 384; In re White, supra, 97 Cal.App.3d at p. 148.)

Search conditions invalid under Lent: People v. Burton (1981) 117 Cal.App.3d 283, 391; In re Martinez (1978) 86 Cal.App.3d 577, 584; People v. Kay (1973) 36 Cal.App.3d 759, 761-762; contra People v. Balestra, supra, 76 Cal.App.4th at pp. 66-67.)

A law is unconstitutional if it is “so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application[.]” (Connally v. General Cons. Co.(1926) 269 U.S. 385, 391.) A law “violates the first essential of due process of law” if it fails to afford persons notice of what conduct is prohibited. (Ibid.) Probation conditions that leave the the scope of the term to be defined on an ad hoc basis by whichever government actor seeks to enforce it are unconstitutional. (In re Sheena K., supra,40 Cal.4th at p. 890.)   

Probation conditions infringing on medical rights/choice of medical treatment:

All persons have the right under the Fourteenth Amendment to the United States constitution to obtain medical treatment of one’s choice. (Whalen v. Roe (1977) 429 U.S. 589, 603.)  Any restriction on this right must pass the strict scrutiny test which assesses whether the restriction is narrowly tailored to a compelling governmental interest. (See, e.g. Roe v. Wade (1973) 410 U.S. 113, 155.) Additionally, all persons have a right to privacy to medical records under the United States and California Constitution. (See, e.g. Gross v. Recabaren (1988) 206 Cal.App.3d 771, 782-783  [substantial privacy concerns are raised whenever there is an intrusion into a patient’s confidential relationship with a physician.];  Ruiz v. Podolsky (2010) 50 Cal.4th 838, 851 [the same with respect to disclosure of confidential medical information regarding the condition a patient seeks to treat]; Yin v. State of Cal. (9th Cir. 1996) 95 F.3d 864, 870 [all persons have the Fifth and Fourteenth Amendment rights in the privacy of personal medical information and records]; Doe v. Attorney General of U.S. (9th Cir. 1991) 941 F.2d 780, 795-796 [same]; see also Whalen v. Roe (1977) 429 U.S. 589, 604 n. 32 [assuming, but not deciding, that persons have a federal constitutional right to the privacy of medical information and records].) 

The California and United States Constitutions afford a person the basic privacy right of making medical decisions. (U.S. Const., Amend XIV; Cal. Const., art. I, § 1.) The probation condition here infringes on that right by requiring that the court permit appellant to take medications which a doctor has deemed medically necessary.  Because the condition is not narrowly tailored to a compelling governmental interest as less restrictive measures could be taken to achieve the same goal, the condition is unconstitutionally overbroad.

A defendant has the right to privacy and to confidentiality in medical records. (See factors set forth in Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 35.)

(Board of Medical Quality Assutance v. Gherardini (1979) 93 Cal.App.3d 669, 679.)

The California Supreme Court today in People v. Lopez (will update soon with WL cite) overturned existing authority and held that “the desire to obtain a driver’s identification following a traffic stop does not constitute an independent, categorical exception to the Fourth Amendment’s warrant requirement.” AMAZING.

You’re welcome.