Southern California Defense Blog

In one of the most important criminal appeals decisions by the high court in years, the United States Supreme Court ruled that law enforcement cannot place a GPS device on or within your vehicle without your knowledge unless they first obtain a search warrant. The police and prosecutors argued that this was not an unconstitutional invasion of a persons privacy to use such a GPS device to track the whereabouts of a person.

In a shocking development ALL NINE JUSTICES ruled that the police and prosecutors were violating the constitutional rights of persons when they failed to first obtain a search warrant to track a person by use of a GPS device. The justices split on their reasoning but all nine agreed that the police could not legally continue to do this. Some of the justices concluded that it was definitely an invasion of a persons “privacy” rights under the constitution. The majority of the justices concluded that this was a “search” under the Fourth Amendment to our constitution and as a search required the police to obtain a search warrant.

It is very gratifying to know that even with the majority of our current Supreme Court being “conservative” on most criminal law matters, that they were willing to see that secretly putting a GPS device on your vehicle just is not legal under our constitution. One of the justices went so far as to say that putting a GPS device is similar to allowing the police to track every cell phone call you make or to monitor every Google search you do the internet. This justice said that the government cannot do these things as they are in violation of every persons privacy rights.

I hope everyone is as happy about this decision as we are at Wallin and Klarich. The protection of our clients rights is why Wallin and Klarich exists. This new decision will help us in our daily battle with prosecutors to see that justice is done.

We would love to hear your thoughts on this important decision.

People often call us and ask if there is anything that can be done for their loved one who is in prison after their initial criminal appeals have been denied. The United States Supreme Court recently answered that question in Smith vs. Cain decided on January 10, 2012.

In this case the accused was serving many years in prison. After he was convicted it was discovered that the police had failed to turn over critical evidence to the defense. There was only one eye witness who placed the accused at the scene of the robbery. This witness had told the police in the initial reports that he could never identify the robber and all he could say is that it was a “black man”.

Even after this new evidence was discovered all of the state courts turned own the accused appeals including the state supreme court. If the accused had stopped fighting he would be spending many more years in prison. However, he was wise enough to appeal his conviction to the United States Supreme Court. Even the very conservative US Supreme Court realized that this conviction could not stand. By a vote of 8 to 1 they reversed his conviction and granted Mr. Smith a new trial. There is a great chance that at a new trial with all of the evidence presented Mr. Smith will be found not guilty.

Please remember that if you give up on your appellate rights you will lose any chance of receiving a new trial. While this type of result does not occur very often, what is critical to remember is that it DOES HAPPEN and if it is your loved one spending years or decades or life in prison don’t you owe it to that loved one to keep fighting for them?

We are interested in knowing what you think about this injustice and you have to wondering how law enforcement can get away with “hiding the ball” from the defense. We certainly are

Dr. Conrad Murray was sentenced today to four years in the Los Angeles County Jail under California’s new sentencing laws that went into effect October 1, 2011. The judge sentenced Murray to the maximum sentence allowed by law which seems extremely harsh considering his lack of prior criminal record as well as the many outstanding things he had done for the community.

However in some ways Dr. Murray is very lucky due to the “timing of his sentencing”. Prior to October 1, 2011 Dr. Murray would have been sentenced to four years in state prison. This would mean he would have done two full years in prison. At the conclusion of his prison term he would have been placed on three years of parole. It is horrible to be on parole as you are monitored closely as to all aspects of your life. The good news for Dr. Murray is that under the new law he will spend his time in the Los Angeles County Jail and not prison. What this means is it is extremely likely he will not serve anywhere near a two year sentence. In fact, based upon the nature of his crime and lack of prior record and the overcrowded condition of the Los Angeles County Jail, he could serve as little as a few weeks or months in custody.

What is even more important for Dr. Murray is that after he is released from custody he CANNOT be placed on parole or probation. This means he will be “free” to do what he wishes to do and not be “hounded” by parole officers. He will not have to answer to anyone as to what he chooses to do.

It is unfortunately that the judge imposed the four year maximum sentence on Dr. Murray. However, in reality Dr. Murray is extremely fortunate that his sentence took place after October 1, 2011.

The 6th Amendment to the US Constitution guarantees the right to effective assistance of counsel to every defendant in a criminal case. "Effective assistance of counsel" doesn't mean perfect counsel. A lawyer's representation of a client is "ineffective" only if it falls below an objective standard of reasonableness and prejudices (has a negative impact on) his defense.

The burden is on the defendant to establish ineffective assistance of counsel. There is a strong presumption that a lawyer's conduct falls within the wide range of reasonable professional assistance. The courts won't second-guess the attorney's tactics or strategies. That is, when deciding if an attorney's assistance was effective, a judge typically won't think to herself, "I wouldn't have done that if I was the defendant's lawyer." Rather, the courts presume or take for granted that an attorney's conduct was proper and that he gave his client adequate assistance.

It's up to the defendant to show that there's a reasonable probability that, but for the lawyer's unprofessional errors, the result of the case would have been different.
Courts realize that a person ordinarily doesn't realize his lawyer's errors and evaluate his professional performance. A person may very well not know he hasn't been competently represented until after trial or appeal, usually when he consults another lawyer about the case. So many courts will allow a person to file a claim to set aside his conviction for ineffective assistance of counsel in federal court, even if he didn't directly appeal his state conviction and sentence or file to withdraw his guilty plea.

If you've missed the filing deadlines for a motion for a new trial or to file a notice of direct appeal, you might first try to reduce the sentence under your state's laws for post-conviction relief. If that fails, and you believe there are grounds to support it, you can attempt to file what's called a "habeas corpus" petition in federal court alleging ineffective assistance of counsel.

With over 30 years of experience as Criminal Lawyers, and appealing cases, Wallin & Klarich will assist you in this difficult time. Visit our website at www.wklaw.com or call us at 888-749-0034. We will be there when you call.

In the American justice system, you are presumed innocent until proven guilty in a court of law.

How, then, is it legal for police to require you to give a DNA sample immediately after your arrest? According to a recent California court decision, it is not.

In People v. Buza, a state appellate court ruled that it was unconstitutional for police to draw a DNA sample from suspects of a felony crime to include in a DNA databank designed to link suspects with unsolved crimes. As an unreasonable “search and seizure,” the court deemed this practice as a violation of the 4th Amendment of the U.S. Constitution.

Therefore, requiring a felony arrestee to submit a DNA sample without independent suspicion, a warrant, or probable cause is unconstitutional.

Be sure that your rights are adequately protected if you are ever facing criminal charges. The best way to do this is to hire a knowledgeable criminal defense attorney. At Wallin & Klarich, our attorneys have been in practice for over 30 years and can help you ensure the protection of your rights. Call us today at 888-749-0034 or visit us online at www.wklaw.com. We will be there for you when you call.

In a case out of Sacramento, a man was placed on felony probation for a DUI.  One of the terms and conditions of his probation was that he “not drink any alcoholic beverages, possess any alcoholic beverages, or be in any place where it is the chief item of sale”.  The issue was- that this term and condition did not have a qualification that to violate his probation, he must commit the proscribed conduct “knowingly”.  The court raised the point that unlike the term and condition that one must not “knowingly own, use, or possess any deadly or dangerous weapons” the term regarding the alcohol had no “knowingly” qualification.

This becomes important for the probationer in this case.  For instance, if goes with friends to go bowling- and the bowling alley serves alcoholic beverages but the probationer did not know that- his probation officer could not arrest him for violating his probation.

This ruling by the court prevents the probation department from violating a probationer for doing something that they DID not know was in violation of his or her probation.  In a felony case- where being put on probation is the alternative to going to prison- a violation could easily put the probationer in prison.  This would be extremely unjust if the probationer did not know that his or her conduct was in violation.

If you or a loved one have been charged with a Probation Violation contact the experienced Southern California criminal defense attorneys at Wallin & Klarich.  We’ve have been helping criminal defendants for over 30 years.  Call us at (888) 280-6839 or visit us at www.wklaw.com.

The right to appeal in a criminal case is conferred and defined by statute. (California Penal Code 1237) Appeal is initiated by filing a notice of appeal with the Clerk of the Superior Court within 60 days from rendition of the judgment or challenged order. The appeal must be taken from a final judgment, which is defined to include an order granting probation, insanity commitment, mentally disordered commitment, or an addiction commitment. The defendant may file a general notice of appeal, simply appealing from the judgment following a jury or court trial or a contested probation revocation. This notice does not require any specification of issues and counsel on appeal is not limited by any designation of issues by trial counsel.

If appellate counsel discerns a defect in the notice of appeal or the absence of a certificate of probable cause, the problem must be immediately addressed. If it is less than 60 days since the imposition of judgment, counsel can file an amended notice of appeal or an application for a certificate of probable cause. If it is too late to proceed in the trial court, relief from default must be sought in the Court of Appeal.

The appeals process can be lengthy and complex. Without the aid and knowledge of an experienced appeals attorney, the whole undertaking can be overwhelming. Our appellate lawyers at Wallin & Klarich have over 30 years of experience handling difficult appeals cases and will work diligently to file a timely appeal that will help you overturn your conviction. Call us today at 888-749-0034 or visit us online at www.wklaw.com. We will be there for you when you call.

Your Wallin & Klarich appeals attorney will obtain and thoroughly review a transcript of your trial to determine what legal errors were made. Such errors include the wrongful admission or exclusion of evidence, jury instructional error, or jury misconduct. Additional investigation may be necessary to uncover the evidence needed to prove such errors. Then, a written brief will be prepared which all such issues and justifications for reversal are presented and argued, supported by legal authority and the declarations of additional witnesses.

Constructing a comprehensive case of appellate issues increases the chances that a judge might grant a new trial because the motion is based on a variety of issues. Raising all pertinent issues at this stage assures that the client's best defense is presented and that those points are preserved for federal court review should that be required at a later date.

The appeals process can be a highly complex process. Without the aid and knowledge of an experienced appeals attorney, the whole undertaking can be overwhelming. Our appellate lawyers at Wallin & Klarich have over 30 years of experience handling difficult appeals cases and will work diligently to file a timely appeal that will help you overturn your conviction. Call us today at 888-749-0034 or visit us online at www.wklaw.com. We will be there for you when you call.

There are several differences between appeals and a writs of habeas corpus. The basic difference is found in the reason why you are using the appellate process. Appeals are used to correct errors that occurred during the case. The appellate courts only consider what they can find within the court file. They will not consider any new evidence. If you think that the trial judge, defense lawyer, or prosecutor made some legal error during the course of the criminal case, then you will want to file an appeal. An appeal is not used if you just want to take another shot at proving innocence in front of a jury or judge.
A writ of habeas corpus can be used if you want the appellate court to consider “new” evidence that the trial judge might not have heard. The habeas petition is for situations where a legal error occurred outside of the evidence that was presented at trial. A successful habeas petition requires a showing that the legal error that occurred actually resulted in a loss of the defendant’s rights.
It is often difficult to know whether an appeal or writ of habeas corpus is appropriate in any given case. If you or a loved one is considering post-conviction relief then it would be very wise to consult a knowledgeable criminal defense lawyer who handles appeals and writs of habeas corpus. At Wallin & Klarich, our attorneys have over 30 years of experience in handling all types of criminal matters. Our attorneys have extensive knowledge of the appellate process. Call us today at (888) 280-6839 or visit us on our website at www.wklaw.com. We will be there when you call.

Lawyers of legendary producer Phil Spector have asked for a third trial for their convicted client. The 71-year-old Rock and Roll Hall of Famer was convicted by a Los Angeles Superior Court jury in April 2009 of second degree murder for the 2003 shooting of actress Lana Clarkson. Spector received a prison sentence of 19 years to life.

The appeal of the conviction was heard on Tuesday, April 12 by the California Courts of Appeals without Spector in attendance. His attorneys argued that both trials were unjustly influenced by testimonies from five women who claimed to be victims of gun-related incidents at the hands of the troubled producer in the past.

Even behind bars, Spector has been a busy man. In June 2010, he released the debut record from his then-29-year-old wife, Rachelle, marking his first album in 30 years. She joined Ike and Tina Turner, the Beatles, the Ramones, the Ronettes and Cher on his amazing list of credits.

If the appellate court grants Spector a new trial, it would be his third. Spector's lawyers in both trials contended he did not kill Clarkson and suggested that forensic evidence showed was depressed and shot herself in the mouth.

In order to make sure that your rights are accurately and aggressively defended after being charged or convicted of a crime in Southern California, you should contact the experienced Southern California criminal defense law firm of Wallin & Klarich. Our attorneys have been helping those accused of crimes for more than 30 years. Wallin & Klarich has the legal resources and knowledge to assist you in obtaining a successful outcome. Call Wallin & Klarich today at 888-280-6839 or visit www.wklaw.com to find out more about how we can help.

If you or a loved one have been convicted of a crime and want to file for an appeal in California it is important to understand how an appeal works in order to get the best result. An appeal can be a very complex and slow process which is why it is so important to have a knowledgeable appellate lawyer to assist you.

Often times attorneys, jurors and judges can make legal errors in the procedural rules or laws during a trial. These errors can lead to innocent people being sentenced to prison. However, fortunately in California under Penal Code Section 1237 there are opportunities to appeal a conviction in order to receive a fair trial.

In general any individual will be able to appeal a trial court decision by taking it to a higher court for review. Yet time is of the essence, because if you were convicted of a felony crime you will have 60 days from the date you were sentenced in which 　to file a notice of appeal. For misdemeanor offenses, you will have only 30 days from the date of your sentence to file a notice of appeal.

Your appellate lawyer will review all of the records in your case. This will include the reporters’ transcript as well as the clerk’s complete transcript. Your lawyer will search the entire record for possible legal errors that occurred during your case.

After your appeals lawyer reviews the record of your case they will file an "opening brief" which will explain in a comprehensive written form the different legal issues which your lawyer believes require that you be granted a new trial. Your appellate attorney will be looking at errors that may have occurred during your trial as well as during your sentencing. The appellate court has the power to reverse the guilty verdict and grant you a new trial. The appeals court also could decide that the sentence imposed by the trial court was legally incorrect and send the case back to the trial court for a new sentencing hearing.

A tremendous amount is at stake after a person is convicted of a crime. If you do not act promptly to file a notice of appeal then you will have given up a critical legal right.

Common errors and mistakes include juror misconduct, prosecutorial misconduct, wrongfully admitted evidence, harsh sentences or incorrectly applied laws.

Due to the different opportunities and short window to file an appeal it is important to contact an aggressive and knowledgeable appellate lawyer as soon as possible to review your case. Our appellate lawyers at Wallin & Klarich have over 30 years of experience handling difficult appeals cases and will work diligently to file a timely appeal that will help you in your attempt to overturn your conviction. Call us today at 888-749-0034 or visit us online at www.wklaw.com. We will be there for you when you call.

At Wallin & Klarich, we get many calls from people who seek information about criminal appeals due to our expertise in the area. As criminal appellate lawyers we have handled many appeals and writs. One of the most common questions we are asked by clients or potential clients is when is an appeal appropriate.

An appeal of a criminal conviction is appropriate when a legal or procedural error occurred. Sometimes, instead of filing an appeal, there are other remedies or procedures that are better suited to an individual's particular case. For example, it may be better, from a strategy standpoint, to file a Writ of Habeas Corpus rather than an appeal. One advantage of a Writ of Habeas Corpus over an appeal is that a Writ of Habeas Corpus has a longer period of time in which it can be filed. An appeal generally has to be filed within 30 or 60 days from sentence or the judge's decision, depending on the facts of the case.

Because it can be difficult to know the best way to proceed for your case, it is often best to hire a lawyer to review your case and your file and then give you advice on what your options are and what your best option may be. After reviewing your file, a criminal appellate lawyer can give you a plan of action that should be followed to achieve the best outcome of your case.

If you have questions about your case, or a case of a loved one, please do not hesitate to call us. Put our expertise to work on your behalf. Give yourself the best chance at winning. Give us a call at 888-749-7428. Visit us at www.wklaw.com

Recently, the San Diego court of appeal reversed a criminal conviction because the court found that the prosecution was engaged in a pervasive pattern of misconduct which rendered defendant's trial fundamentally unfair. The reversal was necessary when during a jury trial the prosecutor questioned the defense expert about whether the defense counsel and the expert had worked together on a prior "rape trial" where they "attacked" the victim, and disparaged defense expert as someone who was being paid a lot of money to come in and give his opinion to spin the facts of the case in defendant’s favor.

The prosecution also improperly attacked the manner in which defense counsel presented his case by suggesting that his thorough cross-examining of a prosecution witness was improper and that counsel had "coached" defendant. The court also stated that the prosecution committed misconduct by urging the jury to exercise its right to find the defendant guilty because the community required justice.

Our firm has over 30 years of experience in criminal appeals matters and has been recognized as an AV rated law firm. The vast resources of Wallin and Klarich allow us to offer outstanding representation to clients appealing their criminal conviction. Please call us at (888) 764-2615 or visit our website at www.wklaw.com/areas-appeals. We will be there when you call.

On October 25, 2010, in People v. Graves, the California Court of Appeal reversed the trial court’s dismissal of appellant’s case even though, on the day of trial, the prosecution requested to trail beyond the statutory deadline without good cause.

On December 23, 2004, appellant Michael Graves was charged with misdemeanor battery against his wife and his mother-in-law. He did not show up to his original arraignment date and a bench warrant was issued; he was finally arraigned on June 30, 2008 while in custody and pled not guilty.

Trial was set for July 28, 2008. Under Penal Code section 1382(a)(3), a person in custody accused of a misdemeanor must be brought to trial 30 days after his arraignment or plea or the person’s case will be dismissed. July 28 was 28 days after Graves’ arraignment and plea.

Graves’ wife and mother-in-law considered the incident giving rise to the complaint a misunderstanding and did not wish to cooperate with the prosecution. On the record and at the request of the prosecution, the trial court ordered the wife and mother-in-law back to court on July 28, but the prosecution apparently failed to serve them with subpoena notices.

On July 28, the defense stated that it was ready for trial. The prosecution asked to trail the case—meaning to place the case at the end of the court calendar that day—because the complaining witnesses had not shown up and the statutory period within which a misdemeanor defendant must be brought to trial had not elapsed. The trial court refused to trail because the prosecution could not show proof that the subpoenas were served and, therefore, no good cause existed to trail. The court deemed the prosecution ready for trial.

Under Penal Code section 1050(a) and (e), in order to reduce case congestion in superior court, a continuance—or an agreement to reschedule a court date to a later date—in a criminal proceeding must be justified by good cause. However, failure to show good cause does not mandate dismissal of the criminal proceeding against the defendant. (P.C. section 1050(k)(1).)

After the court refused another request to trail, the prosecutor asked that the court dismiss the case on its own motion. The court refused the prosecutor’s request and denied the appellant’s motion to dismiss.

During voir dire, the prosecution announced that it would not participate in the trial proceeding. A jury was sworn and impaneled, but the prosecutor refused to give an opening statement and reiterated to the court his desire not participate.

During the defense’s opening statement, the defense attorney informed the jury that the prosecution had presented no evidence that appellant had committed the charged crime. At sidebar, the prosecutor again requested to trail the case and was again denied. Defense counsel moved for an entry of judgment of acquittal. The prosecution declined to be heard on the motion and appellant’s motion for entry of judgment of acquittal was granted.

The prosecution appealed to the appellate division of the superior court. The appellate division acknowledged that the statutory period had not elapsed at the time of trial and that a judge in open court had requested the alleged victims’ presence at trial, but appellant had been acquitted after a jury had been sworn and impaneled. Thus, the appellate division held that he could not be tried again because of the constitutional bar against double jeopardy.

The court of appeal reversed. The appellate court cited federal and state cases supporting the rule that jeopardy does not attach unless defendant had an actual risk of being convicted, even if judgment had been entered after a jury had been impaneled and sworn. The court of appeal stated that courts do not reflexively apply double jeopardy rules: they may look to whether a trier of fact had honestly and actually considered the factual elements of the case in analyzing whether prosecution is barred because of double jeopardy.

The court of appeal characterized the trial proceeding against appellant as a sham trial and concluded that jeopardy did not attach because there was no chance for Graves to be convicted under the circumstances at his trial.

Next, the court of appeal recognized the tension between the statutory deadlines in Penal Code section 1382 and the granting of continuances governed by Penal Code section 1050. However, the court of appeal cited analogous California cases supporting the rule that the trial court cannot dismiss a case if the 10 day grace period under Penal Code section 1382 deadlines has not elapsed, even if the prosecution did not show good cause.
Penal Code section 1050 states that continuances in criminal prosecutions will only be granted upon a showing of good cause, but the statute clearly states that a violation of section 1050 does not mandate dismissal.

The court of appeal remanded to the trial court so that the misdemeanor complaint could be reinstated.

If you or someone you know has been accused of a crime, you will need a skilled Southern California criminal defense lawyer who will vigorously defend you and who knows your statutory and constitutional rights. At Wallin & Klarich, we have helped people accused of crimes for over 30 years. Call us today at (888) 280-6839 or visit us at our website at www.wklaw.com. We will be there when you call.

You must know that in California the claim of ineffective assistance of counsel may be asserted as the basis of your motion for a new trial pursuant to Penal Code section 1181. When the trial court failed to conduct any inquiry at all into the basis for your motion for a new trial, your conviction must be revered unless the record shows beyond a reasonable doubt that further inquiry into your claim would not have led to a different result in your case. As such, you will need to hire an experienced criminal law attorney who will carefully examine the records of your criminal case to make sure that you are entitled for your conviction to be reversed on appeal.

In a hearing on a motion for a new trial based on incompetence of a trial counsel, the trial court has to ask questions to the defendant in order to fully understand his or her reasons for believing that such claim is valid. However, a judge cannot simply avoid conducting such inquiry because you could have made such request at a later date, or that this issue might have been reviewed by an appellate lawyer assigned to you by the court. Rather, there are two basic principles you have to keep in mind. If you claim is based upon acts or omissions that occurred at trial or the effect of which may be evaluated by what occurred at trial, the court may rule on the motion for a new trial without substituting new counsel. If, on the other hand, the claim of incompetence relates to acts or omissions that did not occur at trial or the judge cannot evaluate your claim by what occurred at trial, then, the court must determine whether to substitute new counsel to develop the claim of incompetence. Under either of the two scenarios, the court has an affirmative duty to elicit details regarding the strength of your claim. If the court has failed to do so in your case, you might seek reversal of your criminal conviction based on prejudicial error committed by the court.

Our firm has over 30 years of experience in criminal appeals matters and has been recognized as an AV rated law firm. We have the legal knowledge and the resources to ensure that your rights and liberty are protected. Please call us at (888) 749-0034 or visit our website at www.wklaw.com. We will be there when you call.

On July 6, 2010, the Ninth Circuit Court of Appeal held that the district court did not violate appellants’ Sixth Amendment right to a fair trial by failing to appoint counsel in response to the self-represented appellants’ unprofessional trial behavior. Prior to trial, the district court gave appellants ample opportunity to have counsel appointed on their behalf but they insisted on representing themselves.

In 2004, appellants Kurt F. Johnson and Dale Heineman allegedly concocted a fraudulent scheme premised on relieving clients of mortgage debt. Because of this scheme, banks began to foreclose on appellants’ clients’ properties. Appellants retained an attorney who filed lawsuits against the banks. The suits were dismissed.

In 2005, the federal government indicted appellants on conspiracy and mail fraud charges. Judge Alsup, the same judge who presided over their previous civil case, was assigned to their criminal case. The appellants’ motion to recuse Judge Alsup was referred to another judge and denied.

Appellants declined to have an attorney represent them and chose to represent themselves at trial. In response, Judge Alsup conducted several Faretta hearings, which are hearings to determine a person’s competency to represent himself. Throughout these hearings, Judge Alsup repeatedly advised appellants of the wisdom in having counsel appointed and the danger of representing themselves at trial, especially since they had no legal training. Appellants insisted on representing themselves.

Due to appellants making several bizarre statements in court and because of their decision to represent themselves, Judge Alsup ordered that appellants be given a mental evaluation. The evaluating physician testified that the examination revealed no indication of mental illness in either appellant.

Though appellants refused counsel, Judge Alsup appointed standby counsel to advise them on matters of procedure and protocol only. After a month-long jury trial, both appellants were convicted and sentenced to over 20 years in federal prison.

Under relevant law, a person has a Sixth Amendment right to represent himself at trial, as long as he is advised of his right to counsel, and knowingly and voluntarily waives the right. However, the right to represent oneself can be terminated if, at trial, the self-represented person persists in serious defiant or obstructionist behavior.

The Ninth Circuit reasoned that “the behavior of the [appellants] during the trial…, while occasionally wacky, was not disruptive or defiant.” (2010 DJDAR 10480.) The court of appeal noted that though appellants insisted on wearing their prison garb, filed meritless pleadings, and were at times uncooperative, their conduct was not the serious disruption necessary to require the district court to terminate their self-representation and appoint counsel. The court contrasted cases where defendants completely refused to present a defense with the current case, where appellants gave opening statements and closing arguments, conducted cross-examination, and testified on their own behalf. On these facts, the Ninth Circuit held that the district court’s refusal to terminate appellants’ right to self-representation did not violate their right to a fair trial.

If you decide to represent yourself, the consequences can be dire, especially if you are accused of a felony. Representing yourself will rarely result in a better outcome than having an attorney represent you and, in an overwhelming number of cases, you will end up in a much worse position.

If you or someone you know has been accused of a crime, you will need a Southern California criminal defense attorney with the experience and knowledge necessary to present the best possible defense. At Wallin & Klarich, we have over 30 years experience helping people accused of crimes. Call us today at (888) 280-6839 or visit us at our website at www.wklaw.com. We will be there when you call.

According a recent Ninth Circuit ruling, a Los Angeles man convicted of murder and attempted murder will be able to argue that his conviction should be overturned because his trial lawyer did not interview the survivor, who stated that the defendant did not shoot him.

In 2003, Deandre Maurice Howard was convicted of shooting two people outside a liquor store, killing one. Howard repeatedly asked his trial attorney to question the survivor of the shooting, but the attorney refused. The survivor was not called to the witness stand, and Howard was sentenced to life in prison. The survivor later wrote to Howard’s appellate attorney (Howard’s trial counsel did not handle his appeal) that Howard did not shoot the survivor or the dead man.

At trial, the prosecution relied exclusively on two eyewitness identifications. One of the witnesses initially identified Howard as the shooter, but at trial testified that he was not.

The Sixth Amendment guarantees the right to a fair trial and effective assistance of counsel. Ineffective assistance of counsel occurs when the defense attorney’s representation is deficient, meaning that the representation fell below the reasonable standard expected of attorneys. The law presumes that an attorney’s representation is not deficient, so this is a high standard for the defendant to overcome. Furthermore, the deficiency must have prejudiced the defendant, meaning that if representation had not been deficient, the outcome of the case would have been different. Ineffective assistance of counsel may be a form of legal malpractice.

At Wallin & Klarich, our attorneys understand the importance of communicating with you, listening to you, and responding to your concerns. We have over 30 years experience in all aspects of criminal trial, and we will vigorously pursue every factual issue relevant to your defense. Call us today at (888) 280-6839 or visit us on our website at www.wklaw.com. We will be there when you call.

The appeals process can be very complex. Judges, attorneys, and jurors must follow a long list of laws and procedural rules. Because of this complexity, there is a fairly high potential for error. At any point in trial, the judge or an attorney can make an error or mistake that may cause an unjust result. What can happen is that sometimes innocent people are sentenced to prison while guilty defendants escape conviction. Fortunately for those who are wrongfully convicted, there are opportunities to overturn the wrongful conviction and receive a fair trial. This is accomplished through the appeals process.

Generally, you will be allowed to appeal any trial court decision by taking it to a higher court for review. In making an appeal, you are asserting that you were wrongfully convicted because of an error or mistake made by the court. Common errors and mistakes include, but are not limited to, juror misconduct, prosecutorial misconduct, wrongfully admitted evidence, harsh sentences, and incorrectly applied laws. As long as there is a valid legal argument that an error was made, an appeal will be allowed. California law, however, provides a very small window of time to file an appeal. If you were convicted of a felony crime, you will have 60 days from the imposition of the sentence to appeal. For misdemeanor offenses, you will have only 30 days to file.

Continue reading "I Need to Appeal My Conviction – What Should I Do? California Penal Code Section 1237" »