Southern California Defense Blog

In 2007, the California Supreme Court held that a DNA expert could testify about evidence from a test he or she did not perform. (People v. Geier (2007) 41 Cal.4th 555). This state has followed a long established practice where supervisors testify about lab tests, instead of technicians who actually tested forensic evidence.

However, the validity of the California decision has been questioned by the 2008 United States Supreme Court’s ruling, which held that a defendant had a right to demand live testimony at trial from crime lab technicians who actually performed their tests. (Melendez-Diaz v. Massachusetts (2008) 129 S. Ct. 2527). In particular, the Court has ruled that a trial court violated defendant's rights under the Sixth Amendment during his trial on a charge alleging that he distributed cocaine, when it admitted certificates signed by state laboratory analysts which stated that material police seized was cocaine because the certificates fell within core class of testimonial statements covered by Confrontation Clause.

The Court’s decision was the latest test of a defendant’s Sixth Amendment right to be “confronted with the witnesses against him.” The Confrontation clause was revived in 2004 when the justices rejected a prosecutor’s use of an absent witness’ tape-recorded statement to the police. Justice Scalia writing for the majority of the Court emphasized that when testimonial evidence is at issue, the Constitution gives the defendant a right to confront and to cross-examine the witness. (Crawfowd v. Washington (2004) 541 U.S. 36).

Since then, the Supreme Court has issued opinions clarifying what qualifies as testimonial evidence. Three years ago, the Supreme Court has found that a recorded 911 call for help was not testimony, and, therefore, the words could be played for the jury if the victim were missing. At the same time, a police officer’s crime-scene interview with an abused spouse was like testimony, and could not be introduced as evidence if she failed to testify. (Davis v. Washington (2006) 547 U.S. 813).

Continue reading "California's DNA Testing Procedures Questioned by the U.S. Supreme Court - Protect Your Sixth Amendment Rights" »

It was recently reported that two San Bernardino officials have been charged with over a dozen felony counts, including bribery and misappropriation of public funds. Former Board of Supervisors Chairman Bill Postmus and former Assistant County Assessor Jim Erwin are accused of accepting $100,000 apiece from land development company Colonies Partners to settle a lawsuit the company filed against the city for $102 million. The lawsuit was filed because the city allegedly failed to make payments for flood control improvements for a development project near Upland.

Postmus is charged with five felony counts, including conspiracy to commit a crime, conflict of interest, misappropriation of public funds, and two counts of accepting a bribe. Erwin is charged with nine felony counts including bribery, misappropriation of public funds, forgery, and two counts each of corrupt influencing and extortion to obtain an official act. Both are awaiting trial on other corruption charges.

Continue reading "Two Elected San Bernardino County Officials Charged with Bribery and Why You Need an Experienced Southern California Defense Attorney to Represent You - California Penal Code Section 641" »

In answering the question of whether discretionary procedural rulings are "automatically inadequate" to bar federal habeas corpus review, the United States Supreme Court has ruled that a state procedural rule is not automatically "inadequate" under the adequate state ground doctrine because the state rule is discretionary rather than mandatory. ﴾Beard v. Kindler ﴾Dec. 8, 2009﴿ 08-992, 2009 U.S. LEXIS 8944﴿.

Under the adequate state ground doctrine, a federal habeas court will not review a claim rejected by a state court if the decision of the state court rests on a state law ground that is independent of the federal question and adequate to support the judgment. Federal courts frame the adequacy inquiry by asking whether the state rule was "firmly established and regularly followed." The Third Circuit determined that since state courts had discretion to hear an appeal filed by the fugitive, meaning that courts could apply procedural rule in one case and deny its application in another, the Pennsylvania fugitive forfeiture law was not "firmly established" because it was not consistently applied in the majority of cases.

The Supreme Court granted certiorari in a case of a fugitive from justice, who had been convicted of capital murder in Pennsylvania state court and escaped to Canada at the time when the trial court was considering his post-verdict motion challenging defendant’s conviction and sentence. The trial court subsequently dismissed Kindler's post-verdict motions because of his escape. Once recaptured and brought to the United States, the defendant sought to reinstate his post-verdict motion.

Continue reading "Discretionary Procedural Rulings In Appellate Matters Are Not Automatically Inadequate For the Purposes of the Adequate State Ground Doctrine" »

Anyone who has been charged with corporal injury on a child, under California Penal Code Section 273d, should be prepared to retain an experienced criminal defense attorney. An experienced criminal defense attorney will know how to examine all the circumstances surrounding your case to secure the most favorable result.

Corporal injury on a child is defined as an infliction of a physical punishment on a child that results in a traumatic condition. Physical punishment can be any form of physical contact with the child that results in an injury. The type of contact can range from punching to pushing a child.

To prove that a person is guilty of the crime of corporal injury on a child in California, the prosecution must prove an individual willfully inflicted cruel or inhuman physical injury on a child. The prosecution must also show that physical punishment was unreasonable or unjustified. The child must also have suffered a traumatic condition.

Continue reading "I am Accused of Corporal Injury on a Child - What Should I Do? - California Penal Code Section 273d" »

In the recent case of People v. Santos Dominguez (2010) 2010 WL 60237 (hereafter Dominguez), the California Court of Appeal held that the amount of force required for false imprisonment of an unresisting infant or child is the amount of physical force required to take and carry the child away a substantial distance for an illegal purpose or with an illegal intent. The court also clarified what constitutes “violence, menace, fraud or deceit” for felony false imprisonment.

In Dominguez, the defendant lived in the same apartment building as two female girls, ages four and six. The defendant did not know the two girls and was not related to either of them. According to the prosecution, the defendant repeatedly hugged the two girls, twice asked the six-year-old where her mother was, and told the six-year-old he wanted to take her to a restaurant. The defendant physically carried the four-year-old outside of the apartment building while the six-year-old followed. When the defendant came upon another man in the building, the defendant stopped and put the four-year-old down.

The defendant claimed he never saw the two girls before the incident and denied picking up or touching the four-year-old. The defendant said that he was merely trying to stop the girls from leaving the apartment building gate to play, wanting them to stay inside. The defendant denied asking the girls if they wanted to go to a restaurant.

Continue reading "California Court of Appeal Clarifies "Force" Requirement of False Imprisonment - PC Section 236-237" »

Recently, a California appellate court has concluded that even if you have a signed lease to enter your apartment, that may not constitute a complete defense to burglary when there is sufficient evidence to conclude that the defendant did not have “an unconditional possessory interest” in the apartment rented with another person at the time of commission of burglary.(People v. Ulloa (Cal. App. 4 Dist., Dec. 21, 2009, No. E045880) 2009 WL 4895082.)

In Ulloa, the defendant was convicted of first degree residential burglary, receiving stolen property, and misdemeanor vandalism as a result of breaking into an apartment leased together with his then-wife, and taking her purse and $900 from her wallet following a domestic violence confrontation. On appeal, the defendant contended that he could not possibly commit burglary as a matter of law because he was a cotenant in the apartment where the alleged burglary occurred.

The appellate court has disagreed. Although both the defendant and the victim jointly signed an apartment lease, and the lease was in full force and effect at the time of the charged crimes occurred, the defendant did not own the property, and his possessory interest was not “unconditional” due to abandoning his unconditional possessory interest in the apartment by moving out.

Continue reading "A Person Can be Convicted of Burglary of the Apartment Which He Leases: California Penal Code Section 459" »

In California, “an officer must activate a red light when in pursuit of a traffic offender who attempts to flee.” (People v. Copass (Dec. 14, 2009, No. B211281) 2009 WL 4757252 (hereafter Copass).) But what if a police officer loses a traffic offender during a pursuit and deactivates the light, only to moments later spot the traffic offender and reactive the light to resume the pursuit? The California Court of Appeal recently determined a police officer can deactivate the red light during the period the officer momentarily loses sight of the offender.

In Copass, a police officer observed a motorcyclist traveling at 90 miles per hour. The officer activated his red light, and a chase ensued. At some point the police officer lost sight of the motorcyclist, and the police officer turned off his emergency lights while continuing to search for the suspect. Within 5 minutes, a CHP surveillance airplane located the suspect and notified the officer of the suspect’s location. The officer did not immediately turn on his red light because he wanted to wait until he got close enough to the suspect. The officer turned his emergency lights and siren back on when he saw the suspect commit a traffic violation. The officer eventually forced the suspect to stop, and the suspect was arrested.

Continue reading "The Proper Use of Police Officers' Emergency Lights When Pursuing Traffic Offenders in California - California Vehicle Code 2800.1 " »

In a recent California Court of Appeals case (People v. Tuggles) the court ruled that the trial judge has the power to subpoena any juror that he or she feels may have been involved in misconduct during the trial. The judge can do so at the request of the defense or of the prosecution.

California Code of Civil Procedure sections 206 and 237 allow jurors to prevent the release of information to parties, their attorneys, investigators working for counsel, and members of the general public. The court must heed the wishes of reluctant jurors to bar disclosure of their personal identifying information to these persons. However, Code of Civil Procedure sections 206 and 237 do not infringe upon the trial courts' inherent power to investigate strong indicia of juror misconduct. (People v. Cox, 53 Cal.3d)

Continue reading "Trial Judge Has the Power to Subpoena Jurors that May Have Been Involved in Misconduct" »

In California, a police officer does not have to be behind you with his or her lights on in order to pull you over. A recent California Court of Appeals case (People v. Pakes) held that the police only need to make a reasonable effort to overtake your vehicle in order to technically be in pursuit.

Evading a police officer is a violation of the California Vehicle Code Section 2800.2. Section 2800.2 states that if a driver flees a pursuing police officer, and the pursued vehicle is driven in a willful or wanton disregard for safety, the driver can be punished by serving jail time. In the Pakes case mentioned above, the defendant argued that the "pursuing" officer needed to be behind his vehicle for a violation of Section 2800.2 to occur. Looking at Section 2800.2's plain meaning, the court found that the word "pursue" includes "the concept of overtaking for capture," which does not require that a pursuing officer place himself behind a suspect.

Continue reading "Evading a Police Officer in California, Vehicle Code Section 2800.2: How Knowing the Law Could Spare You Jail Time" »

A recent California Court of Appeals decision in People v. Hirata held that a search warrant is invalid after the passing of a substantial period of time. In this case, the period of time was 84 days.

The defendant (Hirata) was charged with possessing drugs and being part of a drug conspiracy ring. Investigators had built substantial evidence against Hirata and a number of other co-conspirators. Armed with this information, the authorities put together an affidavit and were able to secure a search warrant for a number of the residences believed to be a part of the conspiracy. The search warrant was signed and put into effect on June 14; however, it was not executed (when the search actually took place) until September 4.

Continue reading "Good Faith Exception to the Exclusionary Rule Does Not Apply Where the Search Warrant is 84 Days Old - Penal Code Section 1538.5" »

A recent California Appeals Court decision (People v. American Surety Insurance Co.) held that bail was not forfeited when a defendant failed to appear at an arraignment.

California Penal Code Section 1305 provides that a trial court shall not have jurisdiction to declare a bail forfeiture if no complaint is filed within 15 days from the arraignment. In this case, the defendant appeared at his initial arraignment, but the case was not officially called on the court calendar.

The district attorney in charge of the case wrote the defendant a letter, informing him that he would have to appear on the new date. When the defendant failed to appear on the date requested, the trial court ordered that bail be forfeited and contacted the insurer of the bail company.

Continue reading "District Attorney's Letter Does Not Substitute For a Court Order: Why Having a Good Defense Attorney Can Save You Money-Penal Code Section 1305 and the Law of Bail Forfeitures" »

Valencia is a planned community in California that forms Santa Clarita along with three other major communities. Aside from being used for the location of many TV series, Valencia is well known for being a safe neighborhood and having a convenient network of walkways (paseos) that connect the community without crossing streets at grade. Valencia is home to approximately 32,642 residents and attracts several visitors throughout the year. As a busy city, it is no wonder that arrests are made once in a while for driving under the influence (DUI) in which a Department of Motor Vehicles (DMV) hearing is very liable to take place.

It is normal for motorists to be unsure of their legal rights or defense opportunities when charged with DUI in Valencia. Many individuals arrested for drunken driving do not realize that the officer who arrests them will take away their driver’s license. A DMV hearing is available to arrested individuals as a way to retain driving privileges. However, a person has only ten days from the date of arrest to schedule a DMV hearing. Failure to do this will result in the automatic suspension of a DMV hearing and will suspend a person’s driving privileges for thirty days from the date of arrest.

The skilled Valencia DMV hearing attorneys at Wallin & Klarich understand how important it is for those arrested for DUI to understand their legal rights and receive quality counsel and representation. Our aggressive Southern California criminal defense lawyers have been defending the rights of individuals charged with DUI and other offenses for more than 30 years. We know what it takes to help our clients reach a positive outcome at their DMV hearing and in their DUI case. Call Wallin & Klarich today at 1-888-280-6839 for a case evaluation or visit www.wklaw.com for more important information.

A recent Ninth Circuit Court of Appeals decision dealt a blow to racially motivated juror dismissals.

When choosing a jury, attorneys are allowed a certain number of challenges to remove jurors form the jury pool. The attorneys may challenge “for cause” or may exercise a limited number or peremptory challenges. The “for cause” challenges must be clearly stated and relate to a juror bias that would affect the impartiality of the decision. Peremptory challenges do not require an explanation, but cannot be related to race, gender, or sex.

The Ninth Circuit Court of Appeals just made the peremptory challenge harder by ruling that the appeals court can conduct a comparative juror analysis when determining if the peremptory challenge was made because of race, gender, or sex.

Continue reading "Recent Ninth Circuit Decision Makes Jury Selection More Even-Handed" »

Many times, out of court statements are the only evidence available to the prosecution at trial. This usually happens because the victim is unwilling or unavailable to testify at trial. For example, a prosecutor would want a cop to be able to testify that a victim told that officer that the defendant hit him or her if the alleged victim is now unwilling to testify.

The rules of evidence require that a person must be present in court and subject to a cross examination by opposing counsel in order for his/her statements against the defendant to be admitted into evidence. The United States Supreme Court upheld this requirement in Crawford v. Washington. The effect of this decision is that statements given to the police after the emergency part of the investigation is done will not be admissible as evidence against the defendant when the witness is unavailable to testify in court.

Continue reading "Conviction Based on Out of Court Statements Reversed" »

In a follow-up to a blog previously posted on this site, the California Supreme Court has decided to review to Riverside County criminal cases that had been dismissed for lack of a judge to hear them. The case that was previously posted on and that is currently under review by the California Supreme Court is People v. Wagner. This is the case where the defendant allegedly shot the victim in both knees after the defendant accompanied a female friend to help her retrieve her dog from her ex-boyfriend, the victim. The defendant was charged with very serious crimes and was facing many years in state prison. However, when his trial date got to the “last day” where a continuance would violate his constitutional speedy trial rights and the presiding judge found that there were no court rooms to hear the case, all charges were dismissed.

The Riverside District Attorney’s office decided to appeal the judge’s decision to the court of appeal and argued that the judge abused his discretion and that the criminal case should have been heard before other civil cases and that the court erred by failing to conclude that court congestion and mismanagement constituted good cause to continue the case. The Court of Appeal rejected the DA’s arguments and found that the judge did not abuse his discretion. The DA’s office appealed that decision to the California Supreme Court who decided to hear the case.

Continue reading "California Supreme Court to Hear Riverside Dismissal Cases" »

A recent California Supreme Court opinion held half of a defendant’s statement to be inadmissible because it was coerced by the police. However, the first part of the statement was still enough for the jury to convict the defendant of a double murder.

The California Supreme Court was not happy with the police tactics used to illicit the confession and wrote extensively about the improper procedure. The court ruled, in part, that the police may not illicit a confession through a direct or implied promise. In this case, the promise was to exclude the defendant’s wife from further investigation in exchange for a confession to the murders.

In all criminal cases, a statement is involuntary if it is not the product of a rational intellect and free will. The test for determining whether a confession is voluntary is whether the defendant’s will was overborne at the time he confessed. In other words, were the influences brought to bear upon the accused enough to overbear the defendant’s will to resist, and bring about confessions not freely self-determined. In determining whether or not an accused’s will was overborne, an examination must be made of all the surrounding circumstances—both the characteristics of the accused and the details of the interrogation.

Continue reading "Appealing a Confession: What Counts as Voluntary?" »

The United States Constitution gives defendants the right to cross-examine witnesses against them in criminal proceedings. A defendant in California appealed his conviction of murder on the grounds that he was unable effectively to cross-examine the prosecution’s key witness.

The mother of the victim in this case was the prosecution’s key witness. The victim’s mother, is deaf, cannot speak, and has never learned a standard sign language. Rather, she communicates by using a combination of signs, gestures, facial expressions, and lip reading. At trial, the court used two interpreters to elicit her testimony. The criminal defense attorney for the defendant objected a number of times throughout her testimony, claiming, among other things, he could not determine whether she understood the questions being asked of her.

Continue reading "Court Rules that Defendant Was Not Denied Right to Cross Examine a Witness that Was Deaf, Could Not Speak, and Never Learned Sign Language" »

The founder of Numero Uno markets, a chain of grocery stores throughout Southern California, was granted a new trial last week. This came after a Federal Judge in Los Angels threw out guilty verdicts that had previously been imposed against him.

In throwing out 50 guilty verdicts against the grocery store founder, the Judge ruled that new evidence came to light that may have exonerated him. Prosecutors allege that the man ordered the murders of rivals, employed undocumented workers, and bribed public officials. They will retry him and still maintain that the man is guilty of these crimes.

What is critical to remember is that the only reason that this man is receiving a new trial is that a highly experienced CA criminal appeals lawyer was able to file the appropriate legal briefs and convince the federal court that his client’s legal rights were violated. At a new trial, the defendant may be found not guilty and be a free man.

Continue reading "Grocery Store Owner in Los Angles County to Get a New Trial in Light of New Evidence" »

What this Means for Criminal Defendants and their Attorneys

Last year, Ted Stevens, the 85-year-old former Senator from Alaska was convicted of corruption charges. Charges against Stevens played a pivotal role in voters failing to reelect the seven-term senator to office. But months after jurors found Stevens guilty, the Attorney General dismissed the case citing prosecutorial misconduct. This case is a prime example of the potential for misconduct by both federal and state prosecutors.

Over four years ago, the California state Senate created a commission to investigate the causes of wrongful convictions. The Senate created the commission in response to mounting exonerations of death-row inmates nationwide through DNA testing. The commission found that the most common type of prosecutorial misconduct was failure to disclose exculpatory evidence.

Both federal and state prosecutors have both constitutional, as well as ethical obligations to alert defense lawyers to evidence that is potentially exculpatory. Exculpatory evidence is evidence that may be used to justify or excuse an accused defendant's actions, and which will tend to show the defendant is not guilty or has no criminal intent.

Continue reading "Without Proper Regulation, Prosecutorial Misconduct is Likely to Continue" »

Why Having an Experienced Criminal Defense Attorney On Your Side Could Help You Avoid a False Conviction

DNA evidence has always been thought to be the infallible wave of the future; however, new information could change this perspective.

Even though every person’s DNA is unique, and every trace of a person’s DNA that is left behind will be identical, the testing methods available today cannot compare every single gene in a sample. In most cases, the testing works extremely well, with a very high degree of discrimination; however, there undoubtedly will always be a few inconsistencies or false identifications.

The controversy of the testing’s accuracy has centered on the admissibility of the testing evidence against a defendant. It has been argued that if the results of the tests are not 100 percent accurate, then they cannot be used as evidence of a person’s identity. This argument makes good common sense and has been given deference by some courts.

Currently, the FBI and state agencies have over one million samples of DNA in a DNA database. From this database, law enforcement agencies have created other databases of suspect types in unsolved cases, linking cases to each other to establish serial crime cases, and increasingly matching recidivist offenders to unsolved crimes generating “cold-hit matches.”

What is the problem with “cold hit matches,” you ask? The problem is that the law enforcement paradigm has shifted, with DNA matches at the beginning of an investigation rather than confirming a suspect’s identity after probable cause has been developed. Thus, the investigation begins with little more than a DNA database match, initiated by a machine calculation.

The problem with investigations on the sole basis of DNA database matches is that the system is fallible. In the U.K., where database searching has been the norm for more than a decade, several mismatches or false positives are expected every year. Though these false positive identifications are rare, they still result in investigations that may lead to convictions. This risk of coincidental matches was the central issue in the recent California case People v. Nelson (2008).

Continue reading "DNA Evidence Receives a Boost" »