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.
I am having some success with writing DA’s, post conviction, to request discovery when defense counsel does not have it, and I have reason to believe it does exist. My favorite memory was when I relentlessly emailed a supervising DA for discovery until he finally punted it to an intern. She was so eager to do “a good job” that she did not realize that “helping” meant she was helping me prove a Brady violation. The DA’s office didn’t know what was happening until she was about to sign a declaration. Then a supervisor called me to berate me that the intern was just trying to help and did not know what she was doing and she would not be signing a declaration. It was probably the funniest most enjoyable conversation I’ve had: “uh, this sounds like a communication and HR issue for your office, I’m having a hard time understanding why you’re calling me?” She probably called me because I should know better than to manipulate this poor girl. And, I did feel marginally guilty about this poor girl not knowing what she was doing. But, here’s an idea, don’t violate Brady and your interns aren’t going to declare that you violated Brady. #sorrynotsorry
Anyway, I digress. There is both a statute and a case which can be used to justify a request for post-conviction discovery…. Penal Code section 1054.9 and People v. Garcia (1993) 17 Cal.App.4th 1169 [prosecutorial duty to disclose any exculpatory / impeachment evidence extends post-conviction and sentencing].)
Penal Code section 1054.9 (below) *technically* applies only to cases with a 15 year or more sentence and *technically* is about making a motion not informally asking the DA….but I cite it in any case and throw in the word “in the spirit of” 1054.9. Ammiright?! Happy fishing!
(a) In a case of a serious felony or a violent felony resulting in a sentence of 15 years or more, upon the prosecution of a postconviction writ of habeas corpus or a motion to vacate a judgment, or in preparation to file that writ or motion, and on a showing that good faith efforts to obtain discovery materials from trial counsel were made and were unsuccessful, the court shall, except as provided in subdivision (b) or (d), order that the defendant be provided reasonable access to any of the materials described in subdivision (c).(b) Notwithstanding subdivision (a), in a case in which a sentence other than death or life in prison without the possibility of parole has been imposed, if a court has entered a previous order granting discovery pursuant to this section, a subsequent order granting discovery pursuant to subdivision (a) may be made in the court’s discretion. A request for discovery subject to this subdivision shall include a statement by the person requesting discovery as to whether has previously been granted an order for discovery pursuant to this section.(c) For purposes of this section, “discovery materials” means materials in the possession of the prosecution and law enforcement authorities to which the same defendant would have been entitled at time of trial.
SDAP sent a great memo on the recent Supreme Court decision People v. Stamps. Copied below (with permission). Also, for those who do not know what a certificate of probable cause is, it is something you request on the notice of appeal from a plea. It is necessary whenever you’re going to challenge the validity of the plea and under the circumstances described here:
By Jonathan Grossman, Staff Attorney, SDAP
The Implications of People v. Stamps
[People v. Stamps (June 25, 2020, S255843) __ Cal.5th __] Panel attorneys should be aware of the recent Supreme Court decision in People v. Stamps (June 25, 2020, S255843) __ Cal.5th __ [2020 Cal. Lexis 3974], which held that trying to obtain retroactive relief under new legislation after there has been a plea could result in undoing the plea bargain.
The issue on review was whether a certificate of probable cause was necessary to seek on appeal the retroactive application of S.B. 1393, which now gives the sentencing court discretion to strike a prior serious felony conviction. The Supreme Court held: (1) S.B. 1393 applies retroactively (Stamps, supra, 2020 Cal. Lexis 3974 at p. *13), (2) a certificate of probable cause is not necessary (Id. at p. *15), but also (3) the sentencing court and the prosecution on remand has the discretion to undo the entire plea bargain if the court is inclined to strike the enhancement. (Id. at pp. *28-*36.)
It is the last holding that took many by surprise and can have serious consequences for our clients. While the case was in the context of a prior serious felony conviction, the holdings can apply to similar reforms that have been enacted in the past few years, such as S.B. 620 (discretion to strike a firearms enhancement), S.B. 136 (eliminating prison priors in most situations), and S.B. 180 (eliminating drug trafficking priors in most situations).
First, a certificate of probable cause is not required because the defendant “does not seek to put aside or withdraw his plea. He does not urge that his plea was invalid when made. Instead, he seeks relief because the law subsequently changed to his potential benefit.” (Stamps, supra, 2020 Cal. Lexis 3974 at p. *13.)
Second, S.B. 1393 applies to cases not yet final because “[e]liminating the prior restriction on the court’s ability to strike a serious felony enhancement in furtherance of justice constitutes an ameliorative change within the meaning of” In re Estrada (1965) 63 Cal.2d 740. (Stamps, supra, 2020 Cal. Lexis 3974 at p. *15.)
Third, the Supreme Court expressly rejected the defendant’s argument that five years should simply be reduced from the sentence if the trial court decides to strike the enhancement. “Even when applicable, section 1385 ordinarily does not authorize a trial court to exercise its discretion to strike in contravention of a plea bargain for a specified term.” (Stamps, supra, 2020 Cal. Lexis 3974 at p. *16.) The Court distinguished Harris v. Superior Court (2016) 1 Cal.5th 984, where it was held that the benefits of Proposition 47 applied to those who had entered a plea without risk of undoing the bargain. Proposition 47 expressly applied to those “serving a sentence for a conviction, whether by trial or plea.” (Pen. Code, § 1170.18, subd. (a).) Similar language was not found in S.B. 1393. (Stamps, supra, 2020 Cal. Lexis 3974 at pp. *25-*26.) Nor does newly enacted Penal Code section 1016.8, which prevents a defendant from being compelled to waive at a plea the benefits of future changes in the law, alter the result. (Id. at p. *27.)
The Court cited with approval People v. Ellis (2019) 43 Cal.App.5th 925. (Stamps, supra, 2020 Cal. Lexis 3974 at pp. *30-*32.) In that case, it was held that “Senate Bill No. 1393 does not entitle defendants who negotiated stipulated sentences ‘to whittle down the sentence “but otherwise leave the plea bargain intact.” ’ ” Instead, the “defendant is entitled to seek the benefit of change in the law.” (Ellis, supra, 43 Cal.App.5th at pp. 943–944, emphasis in original.) “If the court on remand declines to exercise its discretion under section 1385, that ends the matter and defendant’s sentence stands.” (Stamps, supra, 2020 Cal. Lexis 3974 at p. *33.) “However, if the court is inclined to exercise its discretion, . . .such a determination would have consequences to the plea agreement. . . . [T]he court is not authorized to unilaterally modify the plea agreement by striking the serious felony enhancement but otherwise keeping the remainder of the bargain.” (Ibid.) “If the court indicates an inclination to exercise its discretion under section 1385, the prosecution may, of course, agree to modify the bargain to reflect the downward departure in the sentence such exercise would entail.” (Ibid.) The court could restructure the sentence instead of simply reducing the time the defendant must serve. Nonetheless, if there is not an agreement, then the prosecution has the power to withdraw the plea bargain. (Ibid.) Even if the prosecution is willing to agree to a reduction in the sentence, the court has the power to withdraw its approval of the plea bargain. (Id. at pp. *33-*34.)
Withdrawal of the plea bargain restores the parties to where they were before there was a plea. (Stamps, supra, 2020 Cal. Lexis 3974 at p. *31.) There is no guarantee the defendant will receive the same or lesser sentence if he or she is later convicted. “Given that defendants in criminal cases presumably obtained some benefit from the plea agreement, we anticipate that there will be defendants who determine that, notwithstanding their entitlement to seek relief based on the change in the law, their interests are better served by preserving the status quo. That determination, however, lies in each instance with the defendant.” (Ellis, supra, 43 Cal.App.5th at p. 944, quoted in Stamps, supra, 2020 Cal. Lexis 3974 at p. *35.)
In light of Stamps, attorneys should advise their clients who seek relief under new legislation after a plea bargain that the attempt can bring the adverse consequence of undoing the plea bargain. Some clients might welcome the opportunity to undo their plea bargains, but they should understand this could result in more serious charges or a longer sentence. For some clients, however, they were not undercharged and they could not receive a longer sentence if the court exercises its discretion as requested, and thus their risks would be low.
The AG routinely overstates the abuse of discretion standard of review. In fact, I actually write in my briefs now, as a matter of course, that they are trying to water down the standard. Yes, the standard is deferential. But, I now argue that anytime the court violates the law–such as by deciding something falls within a hearsay exception when it doesn’t–that is per se abuse of discretion.
Now that courts have discretion to strike all these enhancements that they never had before, I am raising abuse of discretion sentencing issues all the time. I think when I first became a lawyer I would dismiss these types of arguments–of course I’m not going to win an abuse of discretion on a Romero, for example. That might be true. However, the abuse of discretion on sentencing issues is my new favorite thing to write. Most importantly, it makes our clients feel good. We can spend page after page (and oh yes I do) talking about how wonderful they are, how the crime wasn’t bad at all, how much hope we should have for their future, and how their conduct can be explained when considering their life circumstances. I cite studies on why it is understandable that they found themselves where they did, which I use over and over because — newsflash—our clients always have the same circumstances from incarcerated parents, to abuse, to addiction, to mental health issues. When the issue is abuse of discretion for declining to strike a five-year enhancement (e.g.), I cite studies on how lengthier sentences, especially three strike sentences, actually increase recidivism for those convicted of violent crimes. And then, I go through every single sentencing factor and the sentencing objectives to show how the court abused its discretion. (For samples, email: email@example.com).
Of course, the AG always argues that I’m asking the court to reweigh the sentencing factors. Because that’s how they view abuse of discretion. I say of course I’m not asking the court of appeal to reweigh anything. I’m asking that the court look at the law on when striking an enhancement might be appropriate; the law on what the objectives in sentencing are…to determine whether the trial court essentially misapplied the law by finding that the sentencing objectives were furthered by a ridiculously lengthy sentence.
Spoiler alert: I’ve never won one of these arguments. And, i’ve had some very sympathetic cases (all of my cases are sympathetic.) But, I’m going to make this argument until the day I die. Arguing mitigation is one of the biggest things that I miss about being a PD. It’s one of the only arguments we can make to humanize our clients and contextualize their mistakes. In my book, forget discretion, it is abuse of power to take someone’s liberty despite knowing what I know…and if the AG and the COA didn’t know, they sure as hell will after they read what I got to say.
I know we all think drug sales expert testimony is absurd. Really, drug dealers always possess cash in totally normal denominations that must indicate sales? Lame. I think a valid objection is that their opinion testimony is improper profile evidence. There are great cases on this, and I did not win this in an appeal many years ago, but the appellate court took great lengths to explain why this did not make the evidence inadmissible….i.e., they knew it was a problem they had to get around. AG didn’t address it his brief, typical, and still won. Feel free to email for briefing on my specific facts but the law is below. Remember, as always, object on due process/fair trial, in addition to 352, relevance generally, and sometimes improper propensity evidence–theory being he must be the type of guy who is a drug dealer because random innocuous conduct is what drug dealers do. ALWAYS FEDERALIZE FOLKS.
“Profile” evidence is testimony about typical behavior of persons unlawfully carrying narcotics introduced to prove that the defendant is involved in drug trafficking. (People v. Covarrubias (2011) 202 Cal.App.4th 1, 14.) Profile evidence is irrelevant, “inherently prejudicial,” and inadmissible under Evidence Code sections 351, 352, and 1101. (Id. at p. 6; People v. Robbie (2007) 92 Cal.App.4th 1075, 1085, 1088; People v. Martinez (1992) 10 Cal.App.4th 1001, 1008; United States v. Vallejo (9th Cir. 2000) 237 F.3d 1008, 1017.)
The California Supreme Court recognizes that evidence of uncharged drug activity is especially prejudicial. In People v. Cardenas (1982) 31 Cal.3d 897, 907, the high Court stated that the introduction of evidence involving narcotics has a “catastrophic” impact on the jury and “[i]t cannot be doubted that the public is generally influenced with the seriousness of the narcotics problem . . . and has been taught to loathe those who have anything to do with illegal narcotics in any form or to any extent.”
Reviewing courts have consistently held that profile evidence is irrelevant, “inherently prejudicial,” and therefore inadmissible under Evidence Code sections 351, 352, and 1101. (People v. Robbie (2007) 92 Cal.App.4th 1075, 1085, 1088; People v. Martinez (1992) 10 Cal.App.4th 1001, 1008; United States v. Vallejo (9th Cir. 2000) 237 F.3d 1008, 1017 [adopted in People v. Covarrubias (2011) 202 Cal.App.4th 1, 16].) Drug profile evidence is testimony about typical behavior of persons unlawfully carrying narcotics introduced to prove that the defendant is involved in drug trafficking. (Covarrubias, supra, 202 Cal.App.4th at p. 14 [quoting Vallejo, supra, 237 F.3d at p. 1017] [internal quotation marks omitted].) Profile evidence is irrelevant because a defendant has the right to be tried on the evidence against him, not on evidence that is “nothing more than the opinion of those officers conducting an investigation.” (People v. Robbie, supra, 92 Cal.App.4th at p. 1084.)
Testimony about how drug traffickers use hidden compartments in cars to transport drugs is identical to that in People v. Covarrubias, supra, 202 Cal.App.4th at p. 5, 8, 11, where the Court of Appeal ultimately held that law enforcement testimony was drug profile evidence. In that case, the law enforcement agent similarly testified that that drugs are often hidden in compartments in cars to conceal their presence, and there was evidence that narcotics found in the car the defendant drove had drugs concealed therein. (Id. at p. 8, 10; See also United States v. Lui (9th Cir. 1991) 941 F.2d 844, 848 [testimony about the way in which drug profilers smuggle narcotics was inadmissible profile evidence].)
Living in a house that is concealed from view means it is a stash house
Background in my case: officer testified that my guy lived next to an alley so cops wouldn’t see his house and he could flee quickly. Really?! Living in a home near an alley is entirely consistent with innocent behavior, but the testimony implored the jury to believe that [my client] was a drug dealer simply because the officer believed that drug homes are typically located near alleys. Such evidence should not have been admitted. (See People v. Robbie, supra, 92 Cal.App.4th at 1086 [profile evidence is prejudicial because it “implies that criminals, and only criminals, act in a given way. In fact, certain behavior may be consistent with both innocent and illegal behavior”].)
Weapon in house means it is a stash house
99% of stash houses have weapons, and officers “typically” find weapons in stash houses. Really dude? You keep a log of the number of stash houses and have run the numbers? If so, crunch them again.
Such testimony is nearly identical to that in People v. Martinez, supra, 10 Cal.App.4th at p. 1008, where the Court of Appeal reversed a conviction for possession of a stolen vehicle because profile evidence was erroneously admitted. In that case, the officer testified that “95%” of stolen cars that law enforcement had recovered drove on the same freeway on which the defendant drove. (Id. at p. 1005.) In Martinez, and here, the law enforcement officer’s conclusion about criminal activity was based statistical on patterns of those who committed similar crimes. If such testimony was irrelevant profile evidence in Martinez, then the similar testimony here also lacked probative value.
Must be stash house because he has two homes
Testimony was my guy had two homes and “stash house” was sparsely furnished. This testimony is similar to that in People v. Covarrubias, supra, 202 Cal.App.4th at p. 171, where the Court of Appeal stated that the law enforcement officer’s testimony about narcotics traffickers was inadmissible profile evidence in part because it suggested that the defendant “was connected to a large drug trafficking organization[.]” Implying that [my client] was engaged in a “high-quantity” level of narcotics trade because he purportedly had a separate residence to store drugs similarly informed the jury that because of these characteristics of the residence, they could conclude that he was connected to a large trafficking organization. Accordingly, the evidence was irrelevant.
Testimony about counter-surveillance driving
Testimony that when cops followed me guy (if my memory is right it was in an unmarked car), he was doing “counter surveillance driving” elaborating that [my client] “was driving in patterns like that they’re looking to see if they affect who’s following them.” He further stated: “none of the suspects we follow ever drive directly to a location.” This testimony is profile evidence because it is a description of “characteristics believed to be typical of persons unlawfully carrying narcotics[.]” (People v. Covarrubias, supra, 202 Cal.App.4th at p. 14-15 [quoting Vallejo, supra, 237 F.3d at p. 1017].) The use of the phrase “they” is an explicit reference to how narcotics traffickers typically drive. And, stating that “none” of the suspects that officers follow “ever” drive directly to a location—besides being inherently implausible—can only be described as a description of typical traits of persons carrying narcotics. Accordingly, the evidence lacked probative value.
Way your client is interacting with someone must be a drug transaction
Detective Busk testified that my client’s activities in the parking lot with Mr. Ochoa were “consistent with” a narcotics transaction. (2 RT 363.) This is profile evidence pursuant to People v. Robbie, supra, 92 Cal.App.4th at p. 1081, 1085, where the Court of Appeal reversed a conviction because of the admission of profile evidence. Part of the profile evidence in that case was testimony that the defendant acted in a way that was “consistent” with how a person who committed the same crime would act. (Id.) Accordingly, concluding testimony that my client’s activities were “consistent with” narcotics transactions was inadmissible drug profile evidence and irrelevant.
Way package is wrapped and exchanged means it must be drugs
Cop testified that he saw my client carry a package in the parking lot that was “kilo sized,” that cocaine is “generally” smuggled in a kilo form, and that, in his opinion, the package was the “standard form” of cocaine packaging. This testimony is akin to that in People v. Covarrubias, supra, 202 Cal.App.4th at p. 5, where the Court of Appeal held that the law enforcement agent’s testimony about typical behavior of drug traffickers was inadmissible profile evidence. The officer in Covarrubias testified that drug dealers package marijuana in specific ways. (Id. at p. 5.) He also testified that he believed that the person charged in that case was involved in drug trafficking because of the way the marijuana found near him was packaged. (Id. at p. 5, 12.) Testifying that my client was holding an object that was consistent with a package containing cocaine communicated to the jury that Mr. Hernandez was involved in drug trafficking simply from the fact that other people involved in drug trafficking possessed drugs in objects similar to the object that my client possessed. Such testimony is no different from the officer’s conclusion in Covarrubias that a particular type of packaging could establish that a person was involved in drug trafficking. Accordingly, the evidence lacked probative value.
Conversations that were not about drugs must have been about drugs
Cop estified that the phone calls played to the jury involved a discussion about narcotics, even though there was no reference to narcotics. He based this opinion on the fact that conversations about drug transactions “never” involve references to drugs, and instead “they” use code terms. [facts in my case about nature of conversation/”code words” used]… cop testified that the use of the word cars is “very common” language regarding drug transactions. This is drug profile evidence because it is a description of “characteristics often displayed by those trafficking in drugs[.]” (People v. Martinez, supra, 10 Cal.App.4th at p. 1006, fn. 2.) The use of the terms “they” and “very common,” as well as the claim that a drug trafficker “never” discusses drugs explicitly, is testimony of how a drug trafficker “typical[ly]” acts and is therefore profile evidence. (Id.) Therefore, this evidence was also irrelevant.