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...Read More
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...Read More
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...Read More
California Assembly Bill 1810 has been signed by the Governor, and this diversion program has immediately become law as California Penal Code 1001.36. This law is similar to diversion for military persons per California Penal Code 1001.80. First, keep in mind this may not be available for someone accused of DUI (see California Vehicle Code 23640). Although there were arguments from the People to stop the military diversion from applying to...Read More
Can the People dismiss, refile the same charges, then paper the same Judge? A’nope. Birts v. Superior Court
I have to begin by saying that this case is just silly. Check out this timeline: The case gets assigned to a Trial Judge. The Judge ruled on several pretrial motions against the People, and then they dismiss for insufficient evidence. The People file charges the next day with a new case number, although there are no new facts. The case goes to trial again and gets assigned to the same Judge as before. And the People move to disqualify the Judge...Read More
Is a check swab for a felony offense an unreasonable search? The California Supreme Court say no, per their April 2, 2018 decision People v. Buza. Here, Defendant was arrested and booked on felony arson charges. For booking, the Jail required a cheek swab per the DNA Act (California Penal Code 298.1(a)), which Defendant refused. So he got an added criminal charge of refusing to provide a DNA sample. Jurors convicted across the board on all...Read More