Discovery of records post-conviction (Pen. Code 1054.9; Brady)

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 in which a defendant is or has ever been convicted 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 is or has ever 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 that person 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.

Undoing pleas, SB 1393 retroactivity, and Supreme Court People v. Stamps

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.

it’s always an abuse of discretion

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:

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.

Objecting to drug expert testimony: inadmissible profile evidence

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.)

Transporting Drugs:

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.

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.

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.