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Articles Posted in Appeals

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lawyers_judge_attorney_court.jpgWhether you are charged with a serious crime or contesting a traffic ticket, there are rules you need to follow whenever you appear before a judge. Here are some rules you should keep in mind if you are going to court.

Dress for Success

The easiest way to show a judge that you respect the court and that you take this matter seriously is to show up well-groomed and in appropriate attire. Wear a suit or other professional attire and be well groomed. Facial hair is acceptable, but keep it trimmed and neat.

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It’s a Saturday night and you get picked up by some of your friends. You have no idea that they were involved in a robbery just 20 minutes earlier. A few minutes later, police pull the vehicle over and you are arrested in connection with the robbery even though you are unaware it took place.

This would be very frustrating for you, especially if the cops have access to video surveillance footage that proves your innocence. Luckily, a skilled attorney may be able to prove to the court that law enforcement did not make an effort to preserve evidence in your case and the charges against you could be dropped, as proved by a recent Court of Appeals case.

Police Fail to Obtain Video Evidence in Robbery Case (People v. Alvarez)

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A federal judge in Orange County has ruled that California’s death penalty is unconstitutional because it violates a person’s right to be free from cruel and unusual punishment. bail%202.png

In a 29-page ruling, Santa Ana-based U.S. District Judge Cormac J. Carney vacated the death sentence of Ernest D. Jones, who was sentenced to death nearly two decades ago. 1

This decision will be viewed as a major legal victory for those aiming to eliminate the death penalty in California. A smaller victory occurred eight years ago when all executions were stopped.

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When you are making phone calls on your cellphone, should you expect your identity to be private? The U.S. Supreme Court doesn’t think so. However, what happens when your cellphone records are used not to determine who you’ve been in contact with, but where you were at the time?

Charged%20with%20Sexual%20Battery%20Orange%20County%20-%20PC%20243.4.jpgA federal appeals court was asked to answer that question recently in a case involving a suspect convicted in part upon evidence collected as a result of a warrantless search of his cellphone records used to place him at the scene of several armed robberies.

The government was permitted to collect the defendant’s cell records under court order but without a warrant, according to a federal law known as the Stored Communications Act (SCA), codified at 18 U.S.C. sections 2701–2712. The law addresses voluntary and compelled disclosure of “stored wire and electronic communications and transactional records” held by third-party internet service providers (ISPs).

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DNA is like a fingerprint. Police can link you to a crime scene by matching a DNA sample left behind. A prosecutor can use this evidence to support his or her theory that you were present when the crime was committed in his or her effort to convince the jury beyond reasonable doubt that you are the perpetrator.background%20check.jpg

Whether your DNA found at the crime scene is enough evidence to convict you was the question in a recent Court of Appeals case. The defendant was convicted of burglarizing a Santa Ana nail salon based solely on DNA evidence. He appealed the judgment, claiming that there wasn’t enough evidence linking him to the crime scene to support his conviction.

The Appeals Court agreed.

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California Penal Code section 16470 defines a “dirk” or “dagger” as a knife or other instrument that is readily capable of being used as a stabbing weapon that may inflict great bodily injury or death. The definition includes a non-locking pocket knife, but only if the blade of the knife is “exposed and locked into position.”

If this sounds like a contradiction in terms, it may very well be. Which is exactly what the California Court of Appeals was asked to clarify in a recent decision.PS%20of%20Dagger.jpg

A jury decided that a Swiss Army knife the defendant had in his possession, its blade open and exposed, fell within the definition of a stabbing weapon under Section 16470. The jury found him guilty of carrying a concealed dirk or dagger in violation of Penal Code section 23130.

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Picture this: You are driving down the street, your favorite song is on the radio and you’ve caught the attractive girl to your left staring at least two and a half times. “Nothing can bring me down,” you naively think to yourself as you continue to fly through intersection after intersection, almost forgetting that your brake pedal even exists. You see a yellow light ahead, but decide to keep driving through the intersection. Just as you reach the intersection, the light turns red. Then, suddenly, you see a bright flash from a street camera above and your perfect day is over faster than you can say, “But it was still yellow!” canstockphoto15163362.jpg

If you are a Californian and have experienced a similar situation to the one discussed above, you are not alone. Many unfortunate individuals who have been snapped running a red light and ordered to pay a fine upwards of $500 have attempted to appeal their citation. Depending on the city in which you were photographed, you may or may not be exempt from paying this hefty fine.

People v. Khaled

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A recent decision by the United States Court of Appeals (Murray v. Shriro D.C. No. 2:03-CV-00775-DGC) gives us a look into what can happen if your attorney dozes off during the course of a trial.

Dean Morrison and Jacqueline Appelhans were found shot to death in the home they shared in Arizona. Brothers Robert and Roger Murray were indicted for first-degree murder and armed robbery. An Arizona jury convicted them of these charges.Gen%2028.jpg

The brothers appealed their conviction to the Ninth District United States Court of Appeals. One of their grounds for appeal was that they had ineffective counsel because their attorney slept through significant portions of the trial. The court rejected this appeal because neither of the brothers complained of their lawyer falling asleep during the course of trial. The court also felt that the lawyer’s sleeping did not interfere with his ability to participate in the case.

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A conviction is not necessarily the end of the line when it comes to the criminal justice system. You may be able to appeal your criminal conviction or sentence in Orange County for many reasons, including:

  • A judge can make a mistake in his or her ruling or a prosecutor can abuse his authority.
  • An unprepared criminal defense lawyer may have given you poor advice.
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The criminal appeals process in California begins when you file a Notice of Appeal. If you have been convicted of a felony you have 60 days from the day you were sentenced to file a Notice of Appeal. If you were convicted of a misdemeanor you have 30 days.

Criminal%20appeals%20process%20lawyer%20in%20california%20888-280-6839.jpgYour appellate lawyer will then prepare an Opening Brief, which is your first opportunity to explain why your conviction at the trial level should be reversed. The Attorney General will then have the ability to file a Respondent Brief which responds to the issues presented in your Opening Brief and provides reasons why the prosecution thinks your conviction should be upheld. You also have the ability to file a Reply Brief as a response to the Respondent Brief.

After the briefs have been filed the Court of Appeals will offer an opportunity for the appellate lawyers to participate in an oral argument. At the oral argument your appellate lawyer can work to persuade the Judge to reverse your conviction.

About Wallin & Klarich

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Wallin & Klarich was established in 1981. Over the past 32 years, our law firm has helped tens of thousands of families in their time of legal need. Regardless of whether our clients faced criminal or DUI charges, the loss of their driving privilege, or wanted to clean up their criminal record, we have been there to help them.