You gotta SB 1393 or SB 620 remand…now what?!

I’m starting to get appeals from resentencing hearings where the trial courts declined to strike SB 1393/SB 620 enhancements on remand. Here are my tips on how to effectively argue resentencing to make a nice record for an appeal that will be exceedingly difficult to win anyway:

(1) A defendant is entitled to have a trial court review any information relevant to sentencing that was not available at the time of sentencing, such as prison records that did not exist at the time of the original sentencing hearing. (Pepper v. United States (2011) 562 U.S. 476, 490; People v. Tatlis
(1991) 230 Cal.App.3d 1266, 1273.) There is no downside in getting your client’s C File to figure out if there is anything helpful such as the absence of 115s, taking classes, working, etc. You can get this quick and easy with a email or faxing a signed waiver to the litigation coordinator at your client’s prison. If your client tells you that his file won’t be pretty then disregard this. If you think it will be pretty, you can present helpful information and also ask for a new probation report (although you aren’t entitled to one.)

(2) I’ve seen multiple records where judges are saying all kinds of crazy shit at the resentencing hearing. Things like “well you will serve the same amount of time whether I strike this or not” or “the original judge gave you a break I wouldn’t have in granting your Romero” or “the goal of the law is punishment” or “there is a new trend to rehabilitation and I’m sure new laws will come out and help you it doesn’t even matter what I do.” OBJECT. Basically, if a judge says anything beyond the script, object. I’d like to encourage folks to always read the court rules on sentencing objectives, aggravating facts and mitigating facts (although I’m sure people know those.) I’ve found rereading them anytime I’m making a sentencing argument is super helpful. The objection is a due process violation for considering improper information such as facts totally irrelevant to your client, abuse of discretion for sentencing someone based on mistaken beliefs about ameliorative laws, and abusing discretion by improperly applying the rules of court on sentencing. (See, e.g. People v. Sandoval (2007) 41 Cal.4th 825, 847; Eneaji v. Ubboe (2014) 229 Cal.App.4th 1357; see also, People v. Leon (2016) 243 Cal.App.4th 1003, 1026-1027 [remanding for resentencing where sentence was based on an “erroneous assumption” about the law; accord People v. Belmontes (1983) 34 Cal.3d 335, 348, fn. 8; People v. Brown (2007) 147 Cal.App.4th 1213, 1228; People v. Bolton (1979) 23 Cal.3d 208, 217-218 [trial court erred by considering improper facts to fashioning sentence].)

(3) Relatedly, if the original judge was good and the new one is bad, object on the basis that your client has the right to be sentenced by the original judge. Law is murky. Obviously that rule applies to a plea. It does not apply to sentencing following a JT–i.e. a different judge can sentence your client than the one who heard the trial, even over and objection. I’ve briefed this issue recently, email me if you want it. It’s worth preserving.

(4) I came up with a semi-novel argument. Trial court cannot use the same facts to justify more than one enhancement. (Pen. Code §, 1170, subd. (d); (People v. Flores (1981) 115 Cal.App.3d 67, 79.) For example, a court cannot say well you really were a dick in the way you acted so I’m going to give you the aggravated term and a consecutive term. (See, e.g. People v. Lawson (1980) 107 Cal.App.3d 748, 752.) I have cases where at the original hearing the judges denied Romero motions because client had a terrible record. They get the case on 1393 remand and say, you guessed it, “I’m not striking this you have a terrible record.” I argued this violates the dual use of facts rule. Email me for briefing. There isn’t any law on point because this is a new rule–that they have discretion to strike the 1393. The only cases on the relationship between 1393 and Romero are about whether it violates the dual use rule to enhance a sentence in more than one way because of the same prior conviction. That is not this This is imposing two enhancements based on the same facts; the argument isn’t that it is wrong for imposing it for the same conviction. There is a creative counter to this which I will not reveal here because I just do not think any DA is creative enough to think about it. Inquire within.

on law clerks

This is an ode to two law clerks from UCLA who recently helped me tremendously.

When I was interviewing at the PD I remember being asked what I would do if after 25 years in I was jaded and burnt out. I said I’d asked to be transfer to supervise law clerks because I figured theyd paddle my heart back to beating for the work.

I’m ten years deep. Wouldn’t say I’m jaded or burnt out but would say doing appeals is isolating and in some ways sad because your clients are so very defeated, asking not much from you —- thanking you profusely for “taking” their case and even thanking you for writing them back.

My two law clerks gave me so much faith for the future of this work. I have been so impressed by their ability to pick up on nuances such as identifying on their own that an issue was probably waived. Meanwhile the other found an evidence code section I didn’t even know existed which was right on point (more on that in a forthcoming post.)

I truly feel that they are bring me life in these dark times dramatic as that sounds. Here’s to the future of this work.

Cooperation agreements and Vouching

My personal belief is that trial counsel should always raise claims, even that those that have no chance of success, as long as what is going on is even marginally unfair.

Today’s claim I’d like to discuss is vouching via admitting evidence that a cooperating witness has promised to the tell the truth. The California Supreme Court has held that this, alone, does not constitute vouching. (People v. Williams (2013) 56 Cal.4th 192.) Federal courts hold that this is permissible as long as the evidence is admitted only after the witness is impeached. (nited States v. Wallace (9th Cir. 1988) 848 F.2d 219, 223-224.) Under the Evidence Code in California, though, a prosecutor may seek to support a witness’s testimony before he is impeached. (Evid. Code § 785.) I would argue that federal law should control, but, in any event, there is still a way to make a vouching claim under California law.

Vouching, at its core, is both using the prestige of the prosecutor’s office to assure a jury that a witness is telling a truth but also to suggest that there is outside information the jury can rely on to determine that a witness is truthful. (People v. Fierro (1991) 1 Cal.4th 173, 211.) If it can be said that the prosecutor is eliciting evidence that suggests that the prosecutor, the court, or any other entity is going to evaluate whether the witness is telling the truth, then I think you have a valid vouching argument. I’ve seen proffer/plea agreements that say that the witness must tell the truth to get the benefit of a bargain and that a “neutral” judge will assess whether he did, in fact, tell the truth. In fact, I’ve seen an agreement that said that even after a neutral judge decides if he told the truth, the prosecutor will independently evaluate whether he told the truth before fulfilling the terms of the bargain. How this is not vouching is beyond me. Raise it.

I have briefed this. Email for a copy if you’re interested. jenny@jennybrandtlaw.com.

say what?!

There are a few things I learned once I switched from trials to appeals that were totally news to me. Maybe everyone knows these things. I certainly did not. So I’m going to throw them out here. And in a series of posts similar to issue not waived.

Object and then object again?!

This is so lame. If you have an in limine where, for example, you want to exclude testimony and the judge says they’re going to admit it…technically…you’re supposed to object again when the evidence is actually admitted in order to preserve the issue. (People v. Jennings (1998) 46 Cal.3d 963, 975, fn.3 [“the party seeking exclusion must object at such time as the evidence is actually offered to preserve the issue for appeal.”].) Yes. I know. WTF. The theory is that things change so maybe the judge would revisit their ruling once trial starts and the testimony differs.

There is an exception to this. The failure to renew an objection does not waive the issue for review where the party makes “a specific objection, directed to a particular, identifiable body of evidence, at the beginning of or during trial at a time when the judge can determine the evidentiary question in its appropriate context[.]” (People v. Crittenden (1994) 9 Cal.4th 83, 127.) Generally, then, a 402/in lim should be enough as long as everyone is on the same page.

That being said, ask me how I know this is a thing. Because the AG argues it that’s how! So really the best way to make this not a thing is to say at the beginning of trial/the 402s/any in lims that you’re asking the court whether you will need to renew the objection when the evidence is entered or whether the judge’s ruling is final. I’ve seen this done and the judge will say “you do not need to renew it.” Of course, you can renew it if you think the facts somehow change the argument or should change the court’s decision. But just get this out there ASAP. And. I don’t think it’s a bad idea to ask for a side bar when it does come in to say you’re renewing the objection and then after the testimony memorializing on the record that you renewed the objection.

corpus say what?!

Someone actually won a child molest count on corpus delicti today. Wait what??! The First Dist out of San Mateo in People v Ruiz A153153 said: “Minor turned 11 on January 21, 2016. In September 2016, she told Donnelly her father had first penetrated her private part with his own “[l]ike, three months” before, meaning sometime around June 20, 2016. This date was almost five months after her 11th birthday. Neither Minor’s testimony nor any other evidence independent of Ramirez Ruiz’s confession indicates that Ramirez Ruiz engaged in any sex act with Minor before her 11th birthday. The only evidence that he did so consisted of his own statements to Detective Lopez indicating that he had kissed Minor’s vagina “at the beginning,” just one time, and agreed with Lopez that it had occurred “last year” and stopped “when [Minor] went on Christmas vacation. Although, as we have discussed, corpus delicti evidence can be quite slight, we think it a bridge too far to hold that corpus delicti evidence of sexual abuse identified by the victim as beginning around a particular time supports the inference that a sexual assault of a different kind occurred more than five months earlier. None of the cases cited by the People support such a holding.” Amazing. Denied the corpus claim for other counts… but wow!

For the record!

As an appellate attorney I can say one of the most annoying things about an appeal is when shit is missing from the record. Of course, this is through no fault of trial counsel. However, this post is to alert trial counsel to things that would be helpful to do in every case to ensure a perfected record.

Anytime a DA presents a power point or other demonstrative exhibit to the jury, please ask that it be printed and added to the court file. Obviously you don’t want it entered into evidence because a power point shouldn’t be evidence. But I do not see anything wrong with asking the court to make it part of the court file so that appellate counsel can easily get a copy of it. I doubt most power points are improper, but I think it is important to have a chance to have someone review it. Also, frankly, if there are any clip art images or things in there besides basic truthful statements of the law or evidence, object. This seems like a ripe place to lodge a complaint. This goes without saying, but also include the 6 pack line up photo (ideally in color) to your motion to suppress an ID for the same reasons.

Appellate counsel will not receive any videos or exhibits, unless counsel requests it. Please keep copies of these because often it is not strategically wise for appellate counsel to add it to the record on appeal without looking at it first. Therefore, counsel’s best course of action is usually just to email defense counsel first.

Additionally, please be annoyingly specific and systematic about making sure the record is clear as to what portions of the video are being played for the jury, whether the entire video is given to the jury for deliberations and/or which portions have been entered into evidence, and the name of the actual file that is played.  DAs are horrible about this while I’ve noticed that defense attorneys are thorough. Interject to correct the DA and make it clear. Or ask for a side bar and an admonition to the DA to get his/her shit together.

For the love of god, please do not have discussions on evidentiary issues or jury instructions off the record. I get it. I used to do this in chambers because the judge asked to do it. I was a baby public defender, it didn’t occur to me to refuse. But why do judges ask to do it? Because they say stupid shit behind closed doors that they are not going to repeat in open court. By doing a dress rehearsal behind closed doors, you’re also giving the judge a chance to come up with a better reason to deny you instead of flying off the cuff. Finally, it is very very very very likely you’ll forget to put an issue on the record and then it’s like it never happened. Please don’t make my ass go to the trial court so everyone can agree 6 months later that the judge excluded a piece of evidence.

Also, unless it is going to really harm your client, I’d flat out say as soon as you are before a judge that you will not have any closed door conversations and you want a court reporter for any side bars. If judges act like it would be a logistical nightmare it wouldn’t be. I did it in a trial in LA. The court reporter rolls his or her little typie-thing over to the side bar or you can use those headphone things the interpreters use.

DA Jeff “Karen” Rosen

photo cred: Matt Izzi, Esq.

watch out folks. Santa clara county’s so called “progressive” DA Jeff Rosen will ask to talk to the manager if you have anything to say about anything racism in the criminal justice system. He’ll also respond to #truth about racism in prosecutions by claiming he has black friends. (See quote below.)

Alameda County Public Defender Brendon Woods has dubbed him the first DA Karen. And yes friends, Rosen is acting very Kareny.

SCC Public Defender Sajid Khan posted two very thoughtful pieces on his personal blog calling those to action not only against racism in policing but racism in our courts. If DAs weren’t charging crimes that were the product of racist prextextual stops or on the basis of trumped up police reports written to justify excessive force used, then police wouldn’t have any incentive to keep doing it. This is so basic I dont even understand how it could be controversial? And, yet, SCC DA Mr J. Karen Rosen is now seeking to chill any public criticism of DA offices by trying to have Mr Kahn “investigated” for misconduct and by threatening to file a whistleblower complaint. (Sidebar: I thought I knew what a whistleblower complaint is and Im now very confused.) And, yes folks, DA Mr K literally called Mr Kahn’s manager. Rosen claimed that Kahn’s post was somehow threatening and his staff left early because they were scared. BIZARRE.

Rosen’s defense to Mr Kahn’s substantive points in his blog was the employer equivalent of i’m not racist because I have black friends…And I quote: “Rosen’s spokesman also directed [the washington post] to an op-ed by several black prosecutors who objected to Khan’s assertion that prosecutors contribute to the oppression of black people and ‘rob black people of their humanity.’”

In solidarity with Mr Kahn, I am linking to his blog here and copying and pasting the post in question below. Because what is in there is the truth. If Rosen goes for him come for me too.

Also, don’t let this be lost on anyone:

“In this moment, we appropriately unleash our anger and frustration at police departments across the country for their continued brutality, violence and harassment imposed upon black people. But to best honor George Floyd, we should fire our very righteous outrage, fury and ire at District Attorney’s offices too.

DA’s offices everywhere are the umbrella organization tasked with enforcement of laws and the prosecution of crimes- police officers and the departments they work for are merely the agents of prosecutors. In combination and together, prosecutors and police form the machine of law enforcement that has exacted a massive toll on and dehumanized black communities in our country for centuries- police officers terrorizing and arresting black people and handing them in shackles to DA’s offices for the ultimate and further stripping of their individual and collective humanity. 

When police officers act flagrantly in violation of the constitution and our laws- when they illegally stop and frisk a black man walking on our city streets, when they racially profile and pull a car over driven by a black man without reasonable suspicion, when they beat, choke, punch, baton, tase, unleash dogs upon, shoot at and/or kill black men who pose no imminent threat- it is the DA’s office that is responsible for prosecuting those police crimes or at the very least not endorsing that callous and illegal behavior by using the fruits of those unlawful police intrusions as part of their prosecutions. 

But that’s not what happens. Instead, DA’s offices regularly and customarily overlook, justify and promote illegal, unconstitutional police misbehavior by using illegally collected evidence in their prosecutions and by actively and stubbornly opposing 4th amendment suppression motions brought by public defenders and defense attorneys in our courts. They regularly and customarily do not prosecute police officers who use unreasonable, excessive force and  brutal violence against black men.  In fact, prosecutors actively and affirmatively protect and shield the police from liability by prosecuting the very black victims of police violence on trumped up crimes like resisting arrest and assault on a police officer. If George Floyd had somehow survived Derek Chauvin squeezing the life out of him, the local DA’s office surely would’ve prosecuted Mr. Floyd for resisting arrest and likely for assaulting the cop. So be mad at the police, but be even madder at the DA’s offices that perpetuate and protect them. 

—-

When we yell out “black lives matter,” we call for and demand the recognition and valuing of the humanity of black people in this country. Yet it is the DA’s offices across this nation that are responsible for actively, affirmatively and proudly dehumanizing black people by perpetuating and feeding the mass incarceration monster that is fueled and filled by black bodies. It is DA’s offices that rob black people of their humanity by stripping them of their names, calling them defendants, bodies, criminals, thugs, reducing them to their rap sheets and charges. It is DA’s offices that repeatedly and flagrantly tell us that black lives don’t matter by sending black boys and young men to prison for life and long sentences, by defining them by their worst moments, by separating them from their families and their families from them, turning blind eyes to their stories, contexts and traumas. It is DA’s offices that diminish black lives by insisting that black men and women with convictions forever be labeled and scarred as felons, offenders, strikers and convicts, preventing them from true reentry and reintegration into society.  To DA’s offices, black lives, no matter what they tell you, do not truly matter except to rack up convictions and fill prisons.

So yes, let’s rally at city halls and at the local police station. But don’t forget to make it loud and clear to our DA’s offices that black lives matter. Better yet, make it even clearer at the polling station to vote them out next time they’re up for election.”

-Sajid Khan

issue not waived: seeing the water we swim in

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 !