The new mental diversion applies retroactively. People v. Frahs

The new mental diversion applies retroactively. People v. Frahs

We’re starting to get case law decisions from Appellate Courts about the Mental Health Diversion Law (California Penal Code 1001.36, from AB 1810) Governor Brown inked this bill late June 2018 and it became effective June 27, 2018. You can see my blog about that law, although there seem to be some amendments being made to it. One question frequently asked is whether this law will apply only going forward? Or will it apply to older cases....

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Think you’re innocent? You get to argue that. McCoy v. Louisiana

Think you’re innocent? You get to argue that. McCoy v. Louisiana

The quick rule here is if Defendant thinks he’s innocent, then he gets to claim and argue his innocence. Even if his lawyer thinks it’s a better strategy to admit guilt. This is from the May 14, 2018 US Supreme Court decision McCoy v. Louisiana (138 S Ct 1500) where Defendant was facing the death penalty for allegedly murdering a family. Defense Counsel advised to admit guilt at the trial phase and argue for something less than death at...

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Automobile v. Curtilage Search…which wins? Collins v. Virginia

Automobile v. Curtilage Search…which wins? Collins v. Virginia

Let’s start with the 4th Amendment, as it protects against warrantless, unlawful searches. However, we have some exceptions within the 4th Amendment: one being the warrantless search of an automobile. Generally automobiles have less Constitutional protections than do homes, with one of the main reasons is the “ready mobility” of a vehicle. There are other protections and rules in place, but generally “officers may search an automobile without...

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More on Sanchez hearsay and Ident-A-Drug. People v. Espinoza

More on Sanchez hearsay and Ident-A-Drug. People v. Espinoza

In 2016, the Cal Supremes gave us Sanchez (63 Cal.4th 665). The rule in Sanchez is that experts cannot opine on a single, fact-specific hearsay (out of court statement) when testifying. Well, you know we can’t just leave it at that. So we’ve had appeals on that ruling. And the Court of Appeals are batting around the drug website Ident-A-Drug. Specifically, in 2017 the Court of Appeals of California, First District, Division Five gave us People...

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If running a motion to suppress based on several searches, Defendant must identify government conduct that is objectionable.

If running a motion to suppress based on several searches, Defendant must identify government conduct that is objectionable.

California Penal Code 1358.5 provides that evidence obtained in a warrantless search in violation of the 4th Amendment (unlawful search and seizure) can be suppressed. Well, what if Defendant is claiming there were several searches…and several pieces of evidence unlawfully obtained from the different searches? When filing the Motion to Suppress, must Defendant specifically identify which searches that are being objected to? From the May...

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Can the Prosecution comment on you not calling an alibi witness?

Can the Prosecution comment on you not calling an alibi witness?

Let’s say you on trial for murder. The defense argument is the People cannot prove you actually did it, and that maybe you had an alibi. But…assume Defense does not call any witnesses for this alibi “Defendant was somewhere else” defense. With that, can the Prosecutor comment that Defense didn’t call any alibi witnesses? Well, we know any Defendant has a right to remain silent. And it’s improper if the...

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