California Criminal Defense Blog

The California Supreme Court has overturned a defendant’s five year sentence enhancement under California Penal Code 667(a), California’s “three strikes” law. ” The enhancement was based upon the defendant having been previously convicted of assault with a deadly weapon.

A unanimous court held that since a judge had reduced the earlier crime from a felony to a misdemeanor before the defendant had committed his most recent crimes, the offense no longer qualified as a prior serious felony within the meaning of 667(a), and could not be used to enhance his sentence.

In the earlier case, the defendant pleaded guilty to a charge of felony assault with a deadly weapon under California Penal Code 245(a)(1). The judge in that case suspended imposition of sentence and placed the defendant on three years’ probation.

After the defendant successfully completed the terms of his probation, the judge reduced the offense to a misdemeanor in accordance with the procedures of California Penal Code 17(b)(3).

In the later case, a jury found the defendant guilty of attempted voluntary manslaughter and assault with a firearm.

During sentencing, the prior conviction was revealed. Despite the court being told that the earlier offense had been reduced to a misdemeanor, the judge sentenced the defendant to a total term of 24 years, which included a second-strike sentence of 12 years for the assault conviction and a five-year sentence enhancement under 667(a), based on the defendant having been previously convicted of a serious felony.

Continue reading "California Supreme Court Overturns Three-Strikes Sentence Enhancement" »

The United States Supreme Court 2010 decision in Padilla v. Kentucky held that the Sixth Amendment of the United States Constitution requires criminal defense attorneys to advise non-citizen clients about the deportation risks of a guilty plea. Under Padilla, the lack of such advisement may render an individual’s guilty plea invalid and therefore potentially allow it to be withdrawn.

However, just this past week, the Supreme Court elaborated on the Padilla ruling by handing down its decision in Chaidez v. United States. In this case, the Supreme Court held that Padilla does not apply retroactively and therefore immigrants convicted of certain crimes before 2010 cannot appeal their cases even if their lawyer did not properly warn them of deportation at the time of their guilty plea.

Continue reading "Deceived, Deported and Dejected: Supreme Court Will Not Apply Padilla Retroactively for Countless Immigrants" »

Prior to September 9, 2010, the law in California dictated that if an individual had once been convicted of any theft offense, and had served at least a day in jail, any subsequent convictions for petty theft could be prosecuted as a felony, rather than a misdemeanor. The pertinent statute, California Penal Code Section 666, “Petty Theft with a Prior.”

However, On September 9, 2010, former California Governor Arnold Schwarzenegger signed Assembly Bill 1844, which drastically changed how countless petty theft crimes are charged in California. Specifically, under the new law, the petty theft with a prior statute cannot be alleged unless the accused has been convicted of a theft related offense three or more times (at least one of which included jail time).

There is, however, one important exception. This exception provides that only one prior theft conviction is required if the defendant is a registered sex offender (pursuant to California Penal Code Section 290), or if he or she has a prior conviction for a serious or violent felony (i.e., a “strike” under California law pursuant to California Penal Code Section 667.5).

Continue reading "“Lifting Liberty”: California Lawmakers Amend C.P.C 666 (Petty Theft with a Prior)" »

The manhunt for Christopher Jordan Dorner continues to receive world headlines. Although it is pretty clear among the public that Dorner will likely not surrender without a fight, one key question remains up in the air: what will happen to Christopher Jordan Dorner if captured alive?

At this point, assuming that Dorner is captured alive, either the Riverside County District Attorney’s Office or the Orange County District Attorney’s Office would likely get to prosecute him first. This is because Dorner is suspected of killing Riverside police Officer Michael Crain and as well as a college basketball coach and her fiance in Irvine.

Although both the Riverside and Orange County District Attorney’s Offices are certainly qualified to handle Dorner’s prosecution, don’t think for one second that Dorner’s attempted murder of two LAPD officers in Corona will go unnoticed, let alone unpunished.

Continue reading "The Prosecution of Cop Killers: Who Will Handle the Case Against Christopher Jordan Dorner?" »

Amidst budget cuts, layoffs, attrition and the closure of courthouses and courtrooms, California is struggling to accommodate the volume of litigation on court dockets.

The passage this month of Proposition 36 is only going to add to that challenge.

Proposition 36 reforms California three strikes law so that defendants whose third strike is a nonserious or nonviolent felony cannot be sentenced to life in prison. Moreover, the amendment applies retroactively, so that many life prisoners are eligible to be re-sentenced under the new California three strikes law to a reduced prison term.

Continue reading "Courts Must Prepare for Proposition 36 Cases" »

November 6, 2012 will long be remembered among countless Californians as a day that brought renewed faith and belief in the California criminal justice system.

On this day, Proposition 36 passed thanks to overwhelming support from the voters of California.

With this measure’s passage, the state’s stringent and highly detested Three Strikes Law has finally been reformed in favor of more fair, sensible, and humane sentencing practices.

While Proposition 36 has certainly made landmark changes in the law by prohibiting judges from imposing a life sentence on most repeat offenders who commit minor crimes, this only tells half the story.

In fact, the greatest blessing from the measure’s passage undeniable relates to the nearly 3,000 inmates and their countless family members who now have a renewed sense of hope and faith in the state’s criminal justice system.

Continue reading "Fighting for Freedom: Families of Three-Strikers Race for Their Release" »

The historic passage of Proposition 36 this week has signaled a momentous change in California’s Three Strikes Law.

The measure, which passed easily with nearly 70% of the popular vote, will revise the Three Strikes Law so as to impose a life sentence only under two circumstances:

1. When the third felony conviction is "serious or violent,'' or


2. For a minor felony crime if the perpetrator is a murderer, rapist or child molester.

As a result of California’s existing Three Strikes Law, which allows a third strike for any felony, there have been numerous cases involving sentences arguably in violation of the 8th Amendment constitutional right against cruel and unusual punishment.

Continue reading "Three Strikes and You're [Possibly?] Out: California Voters Reform the Three Strikes Law" »

We all know the police generally must get a warrant before they can search someone’s home and seize property. This means going before a judge and demonstrating “probable cause” that criminal activity is taking place at the location.

But judges have wide discretion in granting search warrants, and the criminal activity in question can be practically anything.

Continue reading "Wiretap Orders Harder for Police to Get than Search Warrants" »

It’s October 15, 2012 and Los Angeles County criminal defense attorney Marcus Musante is yet again burning the midnight oil. Mr. Musante is midway through a trial involving the unlawful brandishing of a weapon (see Brandishing a Weapon, Gun or Firearm | California Penal Code 417 PC) and impersonation of a police officer (see California "False Personation / Impersonation" Laws; Penal Code 529 PC).

The charges in the case are nothing new to Mr. Musante, who has handled much riskier and higher-profile trials ranging from murder to torture. However, due to the unique circumstances of his client (Mr. Bhatti), the consequences surrounding a potential guilty verdict go well beyond any time spent in jail. As an immigrant from Pakistan, Mr. Bhatti is facing deportation from the land that he so dearly loves.

Continue reading ""God Bless America": Marcus Musante Brings Justice to Mr. Bhatti" »

Out of all the crimes on the books, public misconceptions surrounding hazing perhaps loom the largest. While many confine the practice to rowdy college fraternities and sororities, the crime of hazing goes well beyond “Greek Life”--- athletic clubs, religious organizations, and the military alike have all fallen victim to frequent incidents of friendly torture.

Although hazing is often viewed publicly as merely involving “foolish pranks” with no “malicious” intent and therefore no “serious” criminal consequences, the punishment frequently handed down by the government against its perpetrators is far from a simple slap on the wrist. As we dissect in California “Hazing” Laws in Penal Code 245.6 PC, the criminal consequences of Hazing may entail serious time behind the slammer.

Continue reading "Demystifying the Public Haze Surrounding Hazing" »

Murder is the most serious crime on the books. A conviction can lead to life in prison and sometimes even the death penalty.

In some cases, a person who commits a killing can get the charge reduced to manslaughter or even involuntary manslaughter. Both of these can still lead to prison, but usually a far shorter sentence than an actual murder conviction.

In other cases, a person who does a killing can “walk” (that is, not suffer any conviction and not be sentenced to any custody time). We call these instances in California law of excusable or justifiable homicide.

Continue reading "Can One "Walk" on a Murder Case" »

Every kid engages in prank calls, texts or emails at one time or another. Most of this is innocuous fun.

But at some point fun turns into a crime under Penal Code 653m PC – California’s law against annoying or harassing phone calls. And facing criminal misdemeanor charges that carry up to six months of jail time is no fun for anyone.

But not every annoying phone call qualifies as a crime under Penal Code 653m. Otherwise the jails would be full of telemarketers and jealous ex girlfriends and boyfriends.

Continue reading "The Joke May Be On You" »