Recent Victories in Criminal Appeals

Reversals

• In People v. Simon (E058021, 4th Dist, Div. 2, 2011), the client was convicted of murder and causing the death of child under eight years old. The court imposed a sentence of 25 years to life. After trial, one of the jurors revealed to the prosecutor that she knew the prosecutor and that the prosecutor was handling the prosecution of the juror’s former son-in-law for child molestation. After a hearing, the trial court denied a new trial motion, finding that the juror did not deliberately suppress this information during voir dire, despite repeated admonitions for jurors to bring to the court’s attention any issue that might cause concern about the juror’s bias. The Court of Appeal reversed, agreeing with our argument that there was insufficient evidence to support the trial court’s finding, and that, in fact, there was ample evidence the juror had intentionally suppressed this information. The Court of Appeal remanded for a hearing on whether the juror was biased, and, if so, for a new trial. (The court’s opinion can be read here.)


• In People v. Long (2010) 189 Cal.App.4th 826, the defendant was found guilty of two counts of first-degree robbery and one count of rape. The court imposed a sentence of 14 years. In a published opinion, the Court of Appeal reversed the convictions. The trial lawyer objected under the Wheeler-Batson doctrine to the prosecutor’s peremptory challenge of a Vietnamese-American prospective juror, arguing that it was based on the prospective juror’s ethnicity. Both the client and the alleged victim also were Vietnamese-Americans. The trial court overruled the objection. The Court of Appeal held that the trial court erroneously overruled the objection. The appellate court agreed that one of the prosecutor’s stated reasons – the prospective juror’s failure to participate in voir dire – was demonstrably false. The court also agreed that the other stated basis – the prospective juror’s body language and the way he expressed himself – was unsupported by the record and that no deference was due to the trial judge’s implied finding because of the demonstrably false reason and the trial court’s failure to make a "sincere and reasoned" attempt to evaluate the prosecutor’s stated reason. (The court’s opinion can be read here.)


• In Florentino v. Superior Court (C064639, 3rd Dist. 2010), the client pled no contest to various sex offenses. However, he sought to appeal on the ground that certain of the offenses were barred by the statute of limitations. The trial court, however, denied him a certificate of probable cause, which is necessary to appeal a no contest plea. The Court of Appeal agreed that the trial court abused its discretion. The appellate court agreed that the client had a colorable argument on appeal. Thus, it ordered the trial court to issue the certificate of probable cause to permit the appeal to move forward. (The court’s opinion can be read here.)


• In United States v. Kloehn (9th Cir. 2010) 620 F.3d 1123, the client was found guilty of four counts of tax evasion. The court imposed a sentence of 54 months. In a published opinion, the Ninth Circuit Court of Appeals reversed the convictions. The court agreed that the trial court had abused its discretion when it denied a two-day mid-trial continuance so that the client could be with his terminally ill son. The Ninth Circuit also found that the error was prejudicial because it adversely affected the client’s ability to testify effectively and because the trial court’s misleading instruction to the jury explaining his absence from trial the next day exacerbated the prejudice. (The court’s opinion can be read here.)


• In People v. Lint (F057371, 5th Dist. 2010), the client was found guilty of certain sex offenses involving minors. The court imposed a sentence of 4 years and 4 months, to be followed by a sentence of 30 years to life. The The Court of Appeal reversed one of the convictions for continuous sexual abuse after finding that there was no substantial evidence to support it. The court also agreed that two other counts must be dismissed because the charged acts were subsumed in the second conviction for continuous sexual abuse. Finally, the court agreed that as a matter of law one of the fines had to be reduced because the higher statute imposing the higher fine was enacted after the crimes were committed. As a result, the client’s sentence was reduced by a factor of two. (The Court of Appeal opinion can be read here.)


• In People v. Garcia (C057636, 3rd Dist. 2010), the client was convicted of several charges based on accusations that he had deliberately run over people. The Court of Appeal agreed that the sentence for one of the Vehicle Code violations must be stayed under section 654, and further agreed that the prior conviction enhancements must be dismissed because the jury did not find the enhancement allegations true and trial court did not obtain a waiver of the client’s right to a jury trial on these issues.(The Court of Appeal opinion can be read here.)


• In In re Parks (C062527, 3rd Dist. 2010), the client was convicted of robbery and first-degree burglary. He was sentenced to consecutive terms of 25 years to life for each count under the Three Strikes Law. His initial appeal in 2000 affirmed the convictions. A habeas corpus petition was brought in 2009 challenging the legality of the sentence. The trial court rejected the petition as untimely. The Court of Appeal granted the petition. First, it held that the petition was not untimely because an illegal sentence may be corrected at any time. Second, the court held that because the record showed that the force the client used to commit the robbery of the homeowner was that used to escape with the property obtained in the burglary, the two offenses were incident to one objective and thus could be punished only once. The appellate court ordered that the 25 years-to-life sentence for the burglary be stayed under section 654, thereby cutting the sentence in half. (The Court of Appeal opinion can be read here.)


• In People v. Cabrera (C058828, 3rd Dist. 2009), the client was convicted of assault with force likely to cause great bodily injury, battery with serious bodily injury, and active participation in a street gang. The Court of Appeal reversed the conviction for actively participating in a gang. The trial court had instructed the jury that it could find the client guilty of this charge if it found he had committed gang offenses in the State of Washington many years ago. The Court of Appeal held this instruction was reversible error. First, because the jury instruction materially varied from the charge in the information (which was based on an allegation that the current offenses were for the benefit of the gang), the instruction constituted an improper amendment of the information in violation of appellant’s Sixth Amendment right to notice of the charges. Second, because the alleged gang offenses were several years old, the conviction for actively participating in a gang was beyond the statute of limitations. Third, because the underlying gang crimes occurred in Washington, the California courts had no jurisdiction to determine if he was actively participating in a gang on that basis. (The Court of Appeal opinion can be read here.)


• In People v. Maier (C058044, 3rd Dist. 2009), the client was convicted of various offenses in connection with an alleged scheme to fix harness races. Part of the defense at trial was that the client had an unusual betting strategy The Court of Appeal reversed the convictions. The appellate court held that during closing argument the prosecutor improperly brought to the jury’s attention that the defendant had not testified, in violation of his Fifth Amendment privilege against self-incrimination (so-called Griffin error). The court also held that the error was prejudicial because the credibility of the prosecution’s key eyewitness was seriously undermined by his own conduct and his admissions that he had placed numerous improper bets in the past, and because the prosecution’s expert witness could only say that the client was highly confident of his betting strategy. In the court’s words, the prosecution improperly "supplemented the limitations of [the expert’s] analysis with defendant’s silence." (The Court of Appeal opinion can be read here.)


• In People v. Hayden (D052805, 4th Dist. 2009), the client had been committed briefly for a mental examination following emergency surgery. As was routine in such matters, appellant was informed that he could not possess any firearms for a period of five years. Appellant moved for an order that he be allowed to possess his small gun collection (which he had for many years used for hunting and target practice). The Superior Court denied the motion on the ground that the client was a danger to himself. The Court of Appeal reversed. The appellate court found that the trial court mistakenly relied on interim hospital records rather than the final discharge report, and thus did not properly exercise its discretion in ruling on the motion. The Court of Appeal remanded the case for a new hearing. (The Court of Appeal opinion can be read here.)


• In People v. Bodge (C056229, 3rd Dist. 2009), the client was charged with various drug offenses after law enforcement searched her home pursuant to a search warrant that was based in part on a sealed affidavit reciting claims made by a confidential informant. After the trial court denied her motions to quash the search warrant, disclose the sealed affidavit, and suppress the seized evidence, she pled guilty to drug possession offenses. The Court of Appeal reversed the trial court’s ruling denying the motions. It found there was no basis to maintain the confidentiality of the informant’s identity, no basis to order the affidavit sealed, and no basis in the sealed and unsealed portions of the affidavit to support a finding of probable cause. (The Court of Appeal opinion can be read here.)


• In People v. Gallardo (G039319, 4th Dist. 2008), the client was convicted of armed robbery. Before trial, he moved to fire his retained counsel, and informed the court that he believed counsel had not undertaken an adequate investigation. The trial court held a Marsden hearing, found that the attorney was competent, and denied the client’s motion. The Court of Appeal reversed the conviction, holding that it was error to conduct a Marsden hearing – which focuses on the competency of appointed counsel – rather than on whether discharging retained counsel would have resulted in "disruption to the orderly processes of justice." Because there was no basis in the record to deny the client his constitutional right to discharge his retained counsel, a new trial was required. (The Court of Appeal opinion can be read here.)


• In In re Rothwell (D051584, 4th Dist. 2008), an unknown person sent the client a small amount of drugs while he was serving a prison sentence. The prison authorities held an administrative hearing and found that, despite the fact there was no evidence the client solicited the drugs or even knew the sender, the client was "in possession" of the drugs even though prison authorities had intercepted the drugs. As a result, prison authorities ruled that the client forfeited 151 days of credit. The Court of Appeal held that even assuming the client had solicited the drugs, there was no evidence that he had either actual or constructive possession of the drugs. The appellate court ordered the client’s conduct credits restored. (The Court of Appeal opinion can be read here.)


• In People v. Tuttle (B186562, 2nd Dist. 2006), the client was convicted of assault with a deadly weapon, battery with serious bodily injury, and mayhem. The Court of Appeal reversed, holding that the prosecution violated the discovery law and unfairly prejudiced the client by waiting to disclose a key rebuttal witness until after defense counsel had made his opening statement promising that the client would testify. The court also held that the trial court abused its discretion in failing to exclude the rebuttal witness’s testimony, holding that instructing the jury to disregard the opening statement and take no account of the client’s failure to testify were inadequate remedies in the circumstances. (The Court of Appeal opinion can be read here.)


• In People v. Ramirez (2006) 141 Cal.App.4th 1501, the client pled no contest to armed robbery and felony evading. He was sentenced to 12 years. The Court of Appeal reversed, holding that the client’s plea was not "knowing and voluntary" because he was unaware of a potentially exculpatory police report. The Court of Appeal remanded the case for trial. (The court’s opinion can be read here.)

Release on Parole

• In In re Wright (D052126, 4th Dist. 2009), the client was serving a sentence of 30 years to life for a double murder. The client had led an exemplary life in prison, acquired marketable skills, and had realistic plans to live with family members if released. For these reasons, the Board of Parole Hearings granted parole, but the governor reversed the Board. The Court of Appeal reversed, ruling that the record contained no evidence to support the governor’s finding that the client posed an unreasonable risk to the community. The Court of Appeal ordered the client released immediately. (The Court of Appeal opinion can be read here.)

Reductions in Sentence

• In People v. Puga (H033137, 6th Dist. 2009), the client violated probation and was sentenced to 6 years in prison. The Court of Appeal held that the sentence violated the plea agreement, which provided that if the client violated probation the sentence would be no greater than 5 years. The Court of Appeal ordered the judgment modified to reflect the 5-year sentence in the plea agreement. (The Court of Appeal opinion can be read here.)


• In People v. Johnson (B204842, 2nd Dist. 2009), the client was convicted of felony murder and second degree robbery. The trial court imposed a sentence of 30 years to life. The Court of Appeal found two errors in the sentencing. First, the court held that the sentence for the robbery and firearm enhancement (a total of 4 years) should have been stayed under section 654. Second, the court held that the trial court improperly denied the client all pre-judgment custody credit (a total of about 3 years). (The Court of Appeal opinion can be read here.)


• In People v. Hooks (B207109, 2nd Dist. 2009), the client was convicted of murder and related offenses. The trial court sentenced him to 60 years to life. The Court of Appeal held that the consecutive 10-year sentence for the gang enhancement should be struck because under statute it may not be imposed where the defendant is otherwise sentenced to life in prison. The court ordered the sentence modified accordingly. (The Court of Appeal opinion can be read here.)


• In People v. Hamilton (C058646, 3rd Dist. 2008) the trial court granted probation after the client pled guilty to assault with a deadly weapon. The Court of Appeal held that a probation condition was unconstitutionally vague and overbroad, and ordered it corrected. The court also agreed that the client had been denied conduct credits to which he was entitled. (The Court of Appeal opinion can be read here.)


• In People v. Rodriguez (H032617, 6th Dist. 2008), the client pled guilty to a sex offense. The trial court indicated that it believed, in the unusual circumstances of the case, that probation was appropriate, but felt bound under Penal Code to impose a prison sentence. Research showed that because of the date of the offense, the trial court had authority to grant probation if certain conditions were met. Rather than file an appeal, which would have taken many months to decide, I moved the trial court to recall the sentence. At the hearing, the prosecutor and the court agreed that the court had discretion to grant probation, and the court granted probation, resulting in the client’s immediate release from prison. (The Court of Appeal opinion can be read here.)


• In People v. Chapman (E044176, 4th Dist. 2008), the client was convicted of failing to register as a sex offender, and the court found true two strike priors, which exposed him to a sentence of 25 years to life. At the sentencing hearing, the trial court granted the client’s Romero motion to dismiss one of the strikes. The prosecution appealed that ruling in an effort to have the life sentence imposed. The Court of Appeal held that the trial court did not abuse its discretion in dismissing the strike prior allegation. (The Court of Appeal opinion can be read here.)


• In People v. Sergio L. (C055334, 3rd Dist. 2008), the juvenile client admitted a sex offense and was committed to the Department of Juvenile Justice. The Court of Appeal held that the juvenile court committed two errors. First, it miscalculated "the maximum term of physical confinement" by using the wrong upper-term for the base count. Second, the court failed to exercise its discretion in setting the term of confinement without properly considering the "facts and circumstances," as it was required to do under Welfare and Institutions Code, section 731, subdivision (b). The Court of Appeal remanded the case for a new disposition hearing. (The Court of Appeal opinion can be read here.)


• In People v. Robinson (C055640, 3rd Dist. 2008), the client pled guilty to battery and admitted a prior serious felony conviction. The plea agreement provided for a sentence of 8 years. The trial court, however, imposed a sentence of 9 years. The Court of Appeal held that the sentence violated due process because (1) the client’s sentence exceeded the sentence set forth in the plea agreement; and (2) the trial court had no authority to impose a larger sentence because it failed to comply with the procedures in section 1192.5. The court also held that the client did not forfeit the issue on appeal even though trial counsel failed to object to the sentence. The Court of Appeal ordered the judgment modified to reflect the 8-year sentence in the plea agreement. (The Court of Appeal opinion can be read here.)


• In People v. Franz (C054770, 3rd Dist. 2008), the client pled guilty to burglary. The trial court imposed an upper-term sentence, suspended, based on the fact that it had referred the client to the California Rehabilitation Center ("CRC"). The Court of Appeal ordered a new sentencing hearing because an upper-term sentence could not be based on the fact the client was sent to the CRC for drug rehabilitation. The court held that the sentencing error was not harmless because it was "reasonably probable" that the client would obtain a better sentence on remand. (The Court of Appeal opinion can be read here.)


• In People v. Sullivan (C052761, 3rd Dist. 2007), the client had been sentenced to prison for assault with a deadly weapon and misdemeanor battery. The Court of Appeal held that, in the factual circumstances of the case, the trial court’s imposition of a consecutive sentence for the battery conviction violated section 654’s prohibition against multiple punishments for acts "incident to one objective." The court ordered the sentence for the battery conviction stayed, resulting in the client’s immediate release from prison. (The Court of Appeal opinion can be read here.)

Release on Bail Pending Appeal

• In U.S. v. Kloehn (06-50456, 9th Cir. 2006), the client was convicted of tax evasion. The District Court denied the client’s motion for bail pending appeal and remanded the defendant. The Ninth Circuit reversed on the ground that the client had substantial issues on appeal. It ordered the District Court to set reasonable bail conditions.