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California Criminal Law Procedure and Practice 2017

Widely known as the “crim law bible,” this CEB classic answers virtually every question about criminal law practice in California.

"CEB's Criminal Procedure and Practice, it's my bible."
Mark Geragos, The Law Offices of Geragos & Geragos, Los Angeles
"There is a reason that CCLPP is known as the 'bible' for practitioners. . . . Even after almost 20 years of practice, it is the first place I start when I have a new issue and the first place I recommend that new lawyers look to help guide them in their research and practice."
Sangeeta Sinha, Deputy Public Defender, San Francisco Public Defender's Office

Widely known as the “crim law bible,” this CEB classic answers virtually every question about criminal law practice in California. This is the most comprehensive portable guide to California criminal law available.

  • Effectively manage deadlines with charts included throughout
  • Get right to the information you need using the thorough index with commonly used shorthand phrases
  • Benefit from the work of over 60 attorneys and judges
  • Follow the latest developments in the application of Proposition 47
  • Understand the procedure for seeking resentencing under Proposition 36
  • Learn the provisions of Proposition 57
  • Discover the benefits of Proposition 64
  • Familiarize yourself with your obligations to immigrant defendants
OnLAW CR94110

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softcover, replaced annually, 2017

 

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"CEB's Criminal Procedure and Practice, it's my bible."
Mark Geragos, The Law Offices of Geragos & Geragos, Los Angeles
"There is a reason that CCLPP is known as the 'bible' for practitioners. . . . Even after almost 20 years of practice, it is the first place I start when I have a new issue and the first place I recommend that new lawyers look to help guide them in their research and practice."
Sangeeta Sinha, Deputy Public Defender, San Francisco Public Defender's Office

Widely known as the “crim law bible,” this CEB classic answers virtually every question about criminal law practice in California. This is the most comprehensive portable guide to California criminal law available.

  • Effectively manage deadlines with charts included throughout
  • Get right to the information you need using the thorough index with commonly used shorthand phrases
  • Benefit from the work of over 60 attorneys and judges
  • Follow the latest developments in the application of Proposition 47
  • Understand the procedure for seeking resentencing under Proposition 36
  • Learn the provisions of Proposition 57
  • Discover the benefits of Proposition 64
  • Familiarize yourself with your obligations to immigrant defendants

1

Criminal Law Practice Management

E. Thomas Dunn, Jr.

Alan J. Crivaro

  • I. OVERVIEW 1.1
  • II. SOURCES OF CLIENTS
    • A. Court-Appointed Cases 1.2
    • B. Court Referrals 1.3
    • C. Private Referrals 1.4
    • D. Social Service Organizations 1.5
    • E. United States Military 1.6
    • F. Advertising 1.7
  • III. FIRST INTERVIEW 1.8
  • IV. THE JAIL KIT 1.9
  • V. LIST OF FREQUENTLY CALLED PHONE NUMBERS 1.10
  • VI. OPENING, CLOSING, AND RETRIEVING FILES 1.11
  • VII. TIME MANAGEMENT
    • A. Court Appointments 1.12
    • B. Jail Visiting Hours 1.13
    • C. Telephone Calls 1.14
    • D. Calendar Management
      • 1. Attorney Availability; Setting Up Calendars 1.15
      • 2. Deadlines for Filing Court Papers; Computation of Calendar Days and Court Days 1.16
      • 3. Calendar Conflicts 1.17
  • VIII. STANDARD FORMS AND LETTERS 1.18
  • IX. REQUIREMENT THAT COUNSEL KEEP CLIENTS REASONABLY INFORMED CONCERNING CASE 1.19
  • X. RUNNING AN EFFICIENT CRIMINAL APPELLATE PRACTICE 1.20

2

Professional Responsibility

William Woods

  • I. OVERVIEW 2.1
  • II. SOURCES OF PROFESSIONAL RESPONSIBILITY
    • A. California Statutes and Rules of Professional Conduct 2.2
    • B. Additional Sources of Professional Responsibility 2.3
    • C. California Legal Ethics Opinions 2.4
    • D. Ethics Hotline and Alcohol/Drug Abuse Hotline 2.5
  • III. GENERAL ETHICS REQUIREMENTS 2.6
  • IV. WHEN ATTORNEY MISCONDUCT MUST BE REPORTED TO STATE BAR 2.7
  • V. DUTY TO AVOID CONFLICTS OF INTEREST
    • A. Prescreening for Conflicts 2.8
    • B. Multiple Representation
      • 1. Codefendants 2.9
      • 2. Concurrent and Former Clients, Who Are Not Codefendants, in Same Proceeding 2.10
    • C. When Attorney Fees Are Paid by Other Than Client 2.11
    • D. Attorney's Relationship With Another Party's Lawyer 2.12
    • E. Other Possible Conflicts of Interest 2.13
    • F. Attorney Business Transactions Adverse to Client 2.14
    • G. Conflicts That May Disqualify Defense Attorney's Firm 2.15
    • H. Conflicts Confronting Prosecutor 2.16
  • VI. ATTORNEY ADVERTISING AND SOLICITATION 2.17
  • VII. ATTORNEY AS WITNESS 2.18
  • VIII. DUTY TO KEEP CLIENT INFORMED 2.19
  • IX. DUTY TO PROVIDE EFFECTIVE REPRESENTATION
    • A. Obligations and Standards for Effective Representation 2.20
    • B. Examples of Representation Challenged as Ineffective 2.21
  • X. DUTY TO MAINTAIN CLIENT'S CONFIDENCES AND SECRETS 2.22
  • XI. DUTY TO RETAIN FORMER CLIENT'S FILES 2.22A
  • XII. DUTY TO COMPLY AND TO ADVISE COMPLIANCE WITH LAW
    • A. Assisting in Violation of Rules of Professional Conduct 2.23
    • B. Counseling Commission of Crime 2.24
    • C. Conditioning Return of Stolen Property on Agreement Not to Prosecute 2.25
    • D. Suppressing, Concealing, Destroying, or Removing Evidence 2.26
    • E. Interfering With Witnesses; Paying Witnesses 2.27
    • F. Making False Representations and Presenting False Evidence in Court 2.28
  • XIII. ATTORNEYS WHO ARE UNABLE TO PROCEED 2.29
  • XIV. PERJURY BY CLIENT OR WITNESS
    • A. Defendant's Perjury 2.30
    • B. Witness's False Testimony 2.31
  • XV. MATTERS CONCERNING JUDGES
    • A. Improper Communications With Judges 2.32
    • B. Gifts and Campaign Contributions to Judges 2.33
    • C. Comments Regarding Judges and Judicial Rulings 2.34
  • XVI. IMPROPER CONTACTS WITH REPRESENTED PARTY 2.35
  • XVII. IMPROPER CONTACTS WITH JURORS 2.36
  • XVIII. PRETRIAL AND TRIAL PUBLICITY 2.37
  • XIX. TRIAL CONDUCT 2.38
  • XX. RESPONDING TO SUBPOENA OF CLIENT'S RECORDS 2.39
  • XXI. PROSECUTOR'S SPECIAL PROFESSIONAL RESPONSIBILITIES
    • A. When Prosecutor Personally Believes Defendant to Be Innocent 2.40
    • B. Duty When Charges Not Supported by Probable Cause 2.41
    • C. Threatening Criminal, Administrative, or Disciplinary Charges 2.42
    • D. Duty to Disclose Exculpatory Evidence 2.43
    • E. Tampering With Official Jury Lists 2.43A
    • F. Informing Crime Victims of Possible Civil Remedies 2.44
    • G. Checklist: Prosecutorial Misconduct 2.45

3

Right to Counsel; the Attorney-Client Relationship

C. Bradley Patton

Sanders Patton

  • I. OVERVIEW 3.1
  • II. RIGHT TO COUNSEL
    • A. When Right Applies 3.2
    • B. Right of Indigent Defendants to Have Counsel Appointed
      • 1. Generally 3.3
      • 2. Right to Select Appointed Counsel 3.4
      • 3. Appointment of Co-Counsel in Capital Cases 3.5
      • 4. Payment for Ancillary Defense Services 3.6
    • C. Defendant's Right to Represent Self
      • 1. When Self-Representation Permitted; Termination of Self-Representation; Court Obligation 3.7
      • 2. Inquiry Required Before Ruling on Motion; Second Inquiry Required After Preliminary Hearing 3.8
      • 3. Time for Making Motion 3.9
      • 4. Advisory Counsel, Standby Counsel, Co-Counsel; Defendant's Participation as "Co-Counsel"; Ancillary Services 3.10
      • 5. Standard of Review 3.11
    • D. Representation by Certified Law Students 3.12
  • III. BEGINNING THE RELATIONSHIP
    • A. Interviewing Client 3.13
    • B. Fees and Retainer Agreements
      • 1. Retained Counsel
        • a. Written Attorney Retainer Agreements 3.14
        • b. Potentially Tainted Fee Money 3.15
        • c. Fees May Not Be Illegal or Unconscionable 3.16
        • d. Ways of Setting Fees 3.17
        • e. Referral Fees 3.18
      • 2. Appointed Counsel 3.19
    • C. Accepting Employment
      • 1. Considerations Before Accepting Employment 3.20
      • 2. Becoming Attorney of Record 3.21
      • 3. Associating Counsel; Counsel Pro Hac Vice 3.22
    • D. Authority of Attorney 3.23
  • IV. DISCHARGE, SUBSTITUTION, AND WITHDRAWAL OF COUNSEL
    • A. Retained Counsel 3.24
    • B. Discharge of Appointed Counsel (Marsden Motion)
      • 1. In General; Right to Hearing; Remedy 3.25
      • 2. Conduct of Hearing; Role of Defense Counsel 3.26
      • 3. Showing Required 3.27
      • 4. Discharge Initiated by Court 3.28
    • C. Prosecution Interference With Right to Counsel 3.29

4

Arrest and Bench Warrants, Summonses, Subpoenas

Lindsey B. Mercer

C. Bradley Patton

  • I. OVERVIEW 4.1
  • II. CHART: DEADLINES 4.2
  • III. ARREST WARRANT
    • A. Prosecutor's Role in Obtaining Arrest Warrant 4.3
    • B. Nature and Purpose of Warrant; Judges and Magistrates 4.4
    • C. Requirements for Issuance
      • 1. Probable Cause 4.5
      • 2. Failure to Appear on Citation 4.6
    • D. Form of Arrest Warrant 4.7
    • E. Contents of Warrant 4.8
    • F. Execution of Warrants
      • 1. Nighttime Service 4.9
      • 2. Duty to Execute 4.10
      • 3. Time Limit on Service of Warrant 4.11
      • 4. Arrest Warrant Execution at Residence 4.12
      • 5. Location of Arrest Warrant After It Is Served 4.13
      • 6. Duty to Bring Arrestee Before Magistrate 4.14
    • G. Surrendering Defendant on Arrest Warrant 4.15
  • IV. CONSEQUENCES OF INVALID ARREST WARRANT
    • A. No Effect on Personal Jurisdiction of Defendant 4.16
    • B. Possible Effect on Admissibility of Evidence 4.17
  • V. SUMMONS IN PLACE OF ARREST WARRANT 4.18
  • VI. PROBABLE CAUSE FOR WARRANTLESS ARRESTS 4.19
  • VII. CORPORATE SUMMONS 4.20
  • VIII. BENCH WARRANT
    • A. Purpose 4.21
    • B. Requirements for Issuance
      • 1. Failure of Defendant to Appear When Required 4.22
      • 2. Order Increasing Defendant's Bail 4.23
    • C. Form and Contents of Warrant 4.24
    • D. Execution of Warrant 4.25
    • E. Duty to Bring Arrestee Before Court or Magistrate 4.26
  • IX. SEARCH WARRANT 4.27
  • X. SUBPOENAS
    • A. Forms, Issuance, and Service 4.28
    • B. Geographic Factors Affecting Issuance and Service 4.29
    • C. Subpoenaing Law Enforcement Officers 4.30
    • D. Witness Fees 4.31
    • E. Quashing Subpoena
      • 1. Subpoena for Witness 4.32
      • 2. Subpoena Duces Tecum 4.33
      • 3. Alternatives to Motion to Quash 4.34
    • F. Mandate When Motion to Quash Denied 4.35
    • G. Counsel's Options When Witness Fails to Appear 4.36

5

Securing or Preventing Out-of-Custody Status

Lori S. Stuart

  • I. OVERVIEW 5.1
  • II. RELEASE BEFORE ARRAIGNMENT: DUTIES OF DEFENSE COUNSEL
    • A. Client Interview 5.2
    • B. Contacting Bail Bond Representative 5.3
    • C. Contacting Law Enforcement and Prosecution Agency 5.4
    • D. Surrendering the Defendant 5.5
    • E. Effect of Holds 5.6
  • III. CHART: PHONE NUMBERS OF O.R. PROJECTS, DUTY JUDGES, AND BAIL MAGISTRATES IN SELECTED COUNTIES [Deleted] 5.7
  • IV. CITATION (NOTICE TO APPEAR)
    • A. Citation Generally 5.8
    • B. Citable Offenses
      • 1. Infraction and Misdemeanor Arrests: Non-Vehicle Code 5.9
      • 2. Infraction and Misdemeanor Arrests: Vehicle Code 5.10
      • 3. Wobblers 5.11
    • C. Prosecutor's and Magistrate's Duties 5.12
    • D. Defendant's Compliance With Notice to Appear 5.13
    • E. Optional Bail Forfeiture in Infraction Cases 5.14
    • F. Effect of Failure to Appear in Misdemeanor Cases 5.15
  • V. OWN RECOGNIZANCE (O.R.) RELEASE
    • A. O.R. Generally 5.16
    • B. Guidelines for Granting O.R. 5.17
    • C. Own Recognizance (O.R.) Hearing: When Required, Conduct of Hearing, and Conditions of Release 5.18
    • D. County O.R. Offices 5.19
    • E. Defendant's O.R. Agreement 5.20
    • F. Revoking O.R. Release Order
      • 1. Requiring Defendant to Post Bail 5.21
      • 2. Placing Defendant in Custody 5.22
  • VI. RELEASE ON BAIL
    • A. Bail Defined 5.23
    • B. Prosecution Procedures 5.24
    • C. Chart: Deadlines 5.25
    • D. When Defendant Is Entitled to Bail 5.26
    • E. Duration of Bail 5.27
    • F. Fixing Amount of Bail
      • 1. Bail Schedules 5.28
      • 2. Discretionary Authority; Bail Hearing 5.29
      • 3. Permissible Guidelines for Setting Bail
        • a. California Constitution Article I, §12 5.30
        • b. Additional Guidelines for Setting Bail 5.31
      • 4. Increasing or Reducing Bail 5.32
      • 5. Hearing to Determine if Bail Deposit Feloniously Obtained 5.33
      • 6. Excessive Bail Prohibited 5.34
      • 7. Bail When Defendant Extradited 5.34A
    • G. Conditions of Bail 5.35
    • H. Methods of Posting Bail
      • 1. Deposit of Cash, Check, Money Order, Traveler's Check 5.36
      • 2. Government Bonds; Equity in Real Property 5.37
      • 3. Undertaking of Bail (Bail Bond) 5.38
      • 4. Electronic Monitoring in Lieu of Bail 5.39
    • I. When Judge Can Place Defendant Who Is on Bail in Custody
      • 1. After Appearance for Trial 5.40
      • 2. After Adverse Verdict 5.41
      • 3. On Appeal 5.42
      • 4. After Appeal 5.43
      • 5. Other Reasons for Placing Defendant in Custody 5.44
    • J. Bail Forfeiture; Bench Warrant; Defendant Appearing Through Counsel 5.45
    • K. Relief Against Bail Forfeiture 5.46
    • L. Exoneration of Bail; Forfeiture of Bail 5.47
    • M. Habeas Corpus 5.48

6

Arraignment

Elena Condes

  • I. OVERVIEW 6.1
  • II. CHART: DEADLINES 6.2
  • III. CHECKLIST: ARRAIGNMENT 6.3
  • IV. PROCEEDINGS ON ARRAIGNMENT
    • A. Purpose of Arraignment 6.4
    • B. Procedures Generally Applicable to Arraignments 6.5
    • C. Arraignment on Citation 6.6
    • D. Arraignment on Complaint
      • 1. When Complaint Used 6.7
      • 2. Time for Arraignment 6.8
      • 3. Consequences of Delay 6.9
    • E. Arraignment on Information or Indictment in Felony Prosecutions 6.10
    • F. Record of Arraignment 6.11
  • V. DUTIES OF MAGISTRATE OR JUDGE AT ARRAIGNMENT
    • A. Informing Defendant of Charges 6.12
    • B. Ascertaining Defendant's True Name 6.13
    • C. Advising Defendant of Right to Counsel 6.14
      • 1. Mass Advisement 6.15
      • 2. Televised Arraignment and Advisements 6.16
    • D. Appointment of Counsel
      • 1. Duties of Court 6.17
      • 2. Procedures for Assigning Cases to Public Defender 6.18
      • 3. Advisement of Other Trial Rights 6.19
    • E. Taking Defendant's Plea
      • 1. Grounds for Postponing Entry of Plea 6.20
      • 2. Prior-Conviction Allegations 6.21
      • 3. Entering Plea of Guilty or No Contest 6.22
    • F. Determining Probable Cause 6.23
    • G. Setting Bail; Own Recognizance (O.R.) Release 6.24
  • VI. OTHER MATTERS THAT MAY BE ADDRESSED AT ARRAIGNMENT
    • A. Deferred Entry of Judgment or Diversion 6.25
    • B. Mentally Ill and Developmentally Disabled Defendants 6.26
    • C. Setting Next Court Appearance
      • 1. Misdemeanor Cases 6.27
      • 2. Felony Cases 6.28
    • D. Selecting Trial Date 6.29
  • VII. OUT-OF-COUNTY ARREST AND ARRAIGNMENT 6.30
  • VIII. INFRACTION CASES
    • A. Limitations of Rights of Defendant 6.31
    • B. Offenses That May Be Charged Alternatively as Misdemeanors or Infractions 6.32
  • IX. PROCEDURE ON FAILURE TO APPEAR 6.33

7

Pleadings; Joinder and Severance

Jason Cox

  • I. OVERVIEW 7.1
  • II. CHART: DEADLINES 7.2
  • III. PLEADINGS
    • A. Complaint; Citation 7.3
    • B. Information; Indictment 7.4
    • C. Form and Content
      • 1. Summary of Form and Content; Sample Charging Document 7.5
      • 2. Name of Court and Parties 7.6
      • 3. Manner of Statement of Offense 7.7
      • 4. Time of Offense 7.8
      • 5. Court Jurisdiction; When Signed and Sworn To 7.9
    • D. Statute of Limitations 7.10
  • IV. CRIME-CHARGING DISCRETION
    • A. Broad Discretion in Charging 7.11
    • B. Alternative Misdemeanor/Felony ("Wobbler") 7.12
    • C. Checklist: Limitations on Prosecutorial Discretion 7.13
  • V. AMENDING ACCUSATORY PLEADINGS
    • A. Allowable Reasons for Amending Pleadings 7.14
    • B. Time to Amend Pleadings 7.15
    • C. Procedure 7.16
    • D. Effect of Amendment 7.17
    • E. Procedure After Amendment 7.18
  • VI. DEMURRER
    • A. Function and Grounds 7.19
      • 1. Lack of Jurisdiction (Pen C §1004(1)) 7.20
      • 2. Uncertainty (Pen C §1004(2)) 7.21
      • 3. Misjoinder (Pen C §1004(3)) 7.22
      • 4. No Offense Stated (Pen C §1004(4)) 7.23
      • 5. Prosecution Barred (Pen C §1004(5)) 7.24
    • B. Procedure; Format, Service, and Filing 7.25
    • C. Court's Ruling 7.26
  • VII. JOINDER AND SEVERANCE
    • A. Checklists: Grounds for Severance
      • 1. Checklist: Grounds for Severing Counts 7.27
      • 2. Checklist: Grounds for Severing Codefendants 7.28
    • B. Separate Juries as Alternative to Severance 7.29
    • C. Defense Procedures for Challenging Multiple Counts or Defendants 7.30
    • D. Single Defendant; Multiple Charges
      • 1. Permissible Joinder (Consolidation)
        • a. In General 7.31
        • b. Offenses Connected Together May Be Joined 7.32
        • c. Different Statements of Same Offense May Be Joined 7.33
        • d. Unrelated Offenses of Same Class May Be Joined 7.34
      • 2. Mandatory Joinder (Kellett Rule) 7.35
      • 3. Court's Discretion to Sever Counts: In Interests of Justice, for Good Cause Shown 7.36
    • E. Multiple Defendants, Same Offense
      • 1. Joint Trial of Codefendants Contemplated 7.37
      • 2. Grounds for Severance 7.38
      • 3. Effect of Codefendant's Implicating Confession
        • a. Statement of Aranda-Bruton Rules 7.39
        • b. Determining Whether Aranda-Bruton Rule Applies 7.40
    • F. Multiple Defendants, Multiple Offenses 7.41
    • G. Appellate Review of Severance Issues 7.42

8

Preliminary Hearings

Gary Gibson

  • I. OVERVIEW 8.1
  • II. CHART: DEADLINES 8.2
  • III. DESCRIPTION OF HEARING 8.3
  • IV. PROPER VENUE 8.4
  • V. DEFENSE ALTERNATIVES TO PRELIMINARY HEARING
    • A. Waiver of Preliminary Hearing 8.5
    • B. Prehearing Guilty or No Contest Plea 8.6
  • VI. DEFENDANT'S RIGHTS BEFORE AND DURING PRELIMINARY HEARING
    • A. Rights to Counsel and Self-Representation 8.7
    • B. Right to Interpreter 8.8
    • C. Defendant's Right to Be Present 8.9
    • D. Right to Discovery 8.10
    • E. Right to Have Preliminary Hearing Transcribed 8.11
    • F. Right to Confront and Cross-Examine Prosecution Witnesses 8.12
    • G. Right to Present Defense Witnesses and Affirmative Defenses 8.13
    • H. Right to Freedom From Shackles 8.14
    • I. Special Considerations When Codefendants Have Joint Preliminary Hearing 8.15
  • VII. TIMING OF PRELIMINARY HEARING
    • A. When Preliminary Hearing Must Be Held 8.16
    • B. Time to Prepare for Preliminary Hearing 8.17
    • C. One-Session Requirement; Continuances 8.18
    • D. Postponement for Child Witness or Dependent Person 8.19
    • E. Relief by Expedited Writ Proceeding 8.20
  • VIII. PRESENCE OF WITNESSES AND SPECTATORS AT PRELIMINARY HEARING
    • A. Defense Motion to Exclude Public 8.21
    • B. Prosecution Motion to Exclude Public 8.22
    • C. Motion to Exclude Witnesses Under Pen C §867 8.23
    • D. Right of Prosecuting Witness in Certain Cases to Have Persons of Own Choosing Present While Testifying 8.24
    • E. Contemporaneous Examination of Minor Victim 8.25
    • F. Video Recording of Developmentally Disabled or Young Victims of Certain Sex Crimes 8.26
  • IX. EVIDENTIARY ISSUES
    • A. Proof of Corpus Delicti; Sufficiency of Evidence 8.27
    • B. Uncorroborated Accomplice Evidence 8.28
    • C. Elements That Must Be Proved 8.29
    • D. Application of Rules of Evidence 8.30
    • E. Motion to Suppress Evidence 8.31
    • F. Other Motions at Preliminary Hearing
      • 1. Discovery Motions 8.32
      • 2. Other Evidentiary Motions 8.33
    • G. Notice Required for Motions 8.34
    • H. Taking Evidence Outside Court 8.35
  • X. MAGISTRATE'S ROLE
    • A. Who May Be a Magistrate 8.36
    • B. Challenges to Magistrates 8.37
    • C. Standard for Sufficiency of Evidence; Magistrate's Duty to Weigh Evidence 8.38
    • D. Factual Versus Legal Findings 8.39
    • E. Reducing Felony to Misdemeanor ("Wobblers"); Pen C §17(b)(5) 8.40
    • F. Lesser Included and Related Offenses 8.41
    • G. Magistrate Who Hears Refiled Complaint 8.42
  • XI. UNCHARGED OFFENSES AND ENHANCEMENTS 8.43
  • XII. EFFECT OF DISMISSAL
    • A. Prosecution Remedies After Dismissal 8.44
    • B. Defense Remedies After Holding Order 8.45
    • C. Effect on Defendant's Custody Status of Reinstatement of Complaint Following Dismissal 8.46
  • XIII. USES OF PRELIMINARY HEARING TESTIMONY 8.47
  • XIV. PROCEDURE WHEN DEFENDANT'S MENTAL COMPETENCE IN DOUBT 8.48

9

Grand Jury

Dmitry Gorin

  • I. OVERVIEW 9.1
  • II. CHART: DEADLINES 9.2
  • III. SELECTION PROCESS FOR GRAND JURORS
    • A. Method of Selection 9.3
    • B. Staggered Terms; Holdovers 9.4
    • C. Challenges to Composition of Grand Jury 9.5
  • IV. GRAND JURY PROCEDURES IN CRIMINAL CASES
    • A. Origin of Grand Jury [Deleted] 9.6
    • B. Differences Between Grand Jury and Preliminary Hearing 9.7
    • C. Types of Cases Prosecutor Is Most Likely to Bring to Grand Jury; Prosecution Safeguards in Presenting Case 9.8
    • D. Indictment of Minor 9.9
    • E. Indictment for Misdemeanor Offenses 9.10
    • F. Role of Counsel in Representing Witness or Potential Defendant
      • 1. Checklist: Challenges to Indictment 9.11
      • 2. Preparing Witnesses, Deciding Whether Privileges Apply, and Negotiating Immunities 9.12
      • 3. Representation While Witness Is Testifying 9.13
      • 4. Defense Counsel Preparation 9.14
      • 5. Report That Witness Is Not Target 9.15
      • 6. Forcing Defense Counsel to Testify 9.16
    • G. Right to Refuse to Testify 9.17
    • H. Immunity and Contempt 9.18
    • I. Presentation of Exculpatory Evidence by Prosecutor 9.19
    • J. Deliberations of Grand Jury 9.20
    • K. Finding and Presenting Indictment 9.21
    • L. Bench Warrant, Commitment, Bail, and Release on Own Recognizance on Indictment 9.22
    • M. Admissibility of Evidence 9.23
    • N. Secret Indictment; Disclosure of Indictment and Testimony 9.24
    • O. Transcript of Grand Jury Proceedings 9.25
  • V. CIVIL GRAND JURY
    • A. Scope of Inquiry 9.26
    • B. Accusations Against Local Officers
      • 1. Authority; Grounds 9.27
      • 2. Service of Accusation on Defendant 9.28
      • 3. Accusation; Trial Court Procedure 9.29
    • C. Final Report 9.30
  • VI. GRAND JURY'S SUBPOENA POWER
    • A. Subpoena 9.31
    • B. Subpoena Duces Tecum 9.32
  • VII. SUING GRAND JURY MEMBERS 9.33

10

Client Interview

E. Thomas Dunn, Jr.

Alan J. Crivaro

  • I. CLIENT INTERVIEW FORM 10.1
  • II. HOW INTERVIEW QUESTIONS RELATE TO COUNSEL'S CASE AND TO BOOK 10.2

11

Discovery

Teresa Caffese

  • I. OVERVIEW 11.1
  • II. CHECKLIST: SPECIAL DEFENSE AND PROSECUTION DISCOVERY MOTIONS AND PROCEDURES AVAILABLE UNDER "OTHER" STATUTES AND THE CONSTITUTION 11.2
  • III. CALIFORNIA'S STATUTORY DISCOVERY SCHEME: PEN C §§1054—1054.10
    • A. Discovery in General 11.3
    • B. Discovery by Defense
      • 1. Summary of Discovery to Be Provided to Defense 11.4
      • 2. Identity, Whereabouts, and Statements of Witnesses, Including Experts 11.5
      • 3. Real Evidence 11.6
      • 4. Information on Arrests and Convictions 11.7
      • 5. Constitutionally Mandated Discovery 11.8
      • 6. Discovery Under California's Due Process Clause 11.8A
    • C. Discovery by Prosecution
      • 1. Summary of Discovery to Be Provided to Prosecution 11.9
      • 2. Identity, Whereabouts, and Statements of Witnesses, Including Experts 11.10
      • 3. Real Evidence 11.11
      • 4. Court-Ordered Mental Health Examinations of Defendant by Prosecution Experts 11.11A
    • D. Nontestimonial Evidence 11.12
    • E. Counsel's Informal Request for Discovery 11.13
    • F. Work Product and Privileged Information 11.14
    • G. Timing of Disclosures 11.15
    • H. Ex Parte Discovery Orders 11.16
    • I. Motions for Sanctions 11.17
    • J. Pretrial Review of Orders Granting Discovery 11.18
  • IV. DISCOVERY UNDER OTHER STATUTES
    • A. Pitchess Motion: Motion to Discover Personnel File of Law Enforcement or Custodial Officer
      • 1. Purpose of Pitchess Motion 11.19
      • 2. Requirements 11.20
      • 3. Proceedings on Motion 11.21
      • 4. Scope of Disclosure 11.22
      • 5. Sanctions for Failure to Comply With Order of Disclosure 11.23
      • 6. Appellate Review 11.24
    • B. Subpoena Duces Tecum 11.25
    • C. Conditional Examination 11.25A
  • V. CONSTITUTIONALLY MANDATED DISCOVERY
    • A. Evidence Favorable to Accused (Brady Discovery) 11.26
    • B. Duty to Preserve Favorable Evidence (Trombetta-Youngblood Motion)
      • 1. Nature of Motion 11.27
      • 2. When to Make Motion; Method of Review 11.28
    • C. Motion to Obtain Privileged Psychiatric Records (Hammon-Reber Motion) 11.29
  • VI. DISCOVERY OF RECORDS REVEALING DISCRIMINATORY LAW ENFORCEMENT (MURGIA MOTIONS) 11.30
  • VII. POSTJUDGMENT DISCOVERY 11.31

12

Public Records

Garrick A. Byers

  • I. OVERVIEW 12.1
  • II. CALIFORNIA PUBLIC RECORDS ACT AND RELATED STATUTES
    • A. General Description of Act 12.2
    • B. Definition of Public Record 12.3
    • C. Specific California Public Records That Can Be Sought Under Public Records Act or Other State Statutes
      • 1. Law Enforcement Records 12.4
      • 2. State and Local Summary Criminal History Information (Rap Sheets) 12.5
      • 3. Coroner's Inquest, Protocol, and Register 12.6
      • 4. Department of Motor Vehicles (DMV) Records 12.7
      • 5. Other California Public Records 12.8
    • D. Location and Accessibility of Records 12.9
    • E. Procedures for Obtaining Public Records
      • 1. Procedures Applicable to General Public 12.10
      • 2. Special Access by Prosecutor 12.11
      • 3. Agency Response to Public Records Request 12.12
      • 4. Reasons for Nondisclosure 12.13
      • 5. Effect of Disclosure: Loss of Ability to Deny Subsequent Request for Disclosure 12.14
      • 6. Court Enforcement of the Right to Public Records 12.15
  • III. COURT AND JUDICIAL BRANCH RECORDS
    • A. General Rule of Availability 12.16
    • B. Arrest Warrants, Search Warrants, and Supporting Affidavits 12.17
    • C. Inspection or Administrative Warrants 12.18
    • D. Court Hearings, Records of Proceedings, and Filings 12.19
    • E. Probation Reports 12.20
    • F. Juror Information 12.21
    • G. Standards and Procedures for Sealing Other Court Records 12.22

13

Motion to Set Aside Information or Indictment

Michael McCormick

  • I. OVERVIEW 13.1
  • II. CHART: DEADLINES 13.2
  • III. NATURE OF PEN C §995 MOTION
    • A. Challenging Information or Indictment 13.3
    • B. Evidence on Which Motion May Be Based and Decided; Obtaining Transcript 13.4
  • IV. IMPORTANCE OF MAKING PEN C §995 MOTION 13.5
  • V. GROUNDS FOR MAKING PEN C §995 MOTION
    • A. Information or Indictment Not Based on Reasonable or Probable Cause (Sufficiency of Evidence)
      • 1. Standard of Review 13.6
      • 2. Challenging Sufficiency of Evidence 13.7
      • 3. Holding Order or Indictment Based on Illegally Obtained Evidence 13.8
      • 4. Common Sufficiency-of-Evidence Issues 13.9
    • B. Defendant Not Legally Committed by Magistrate 13.10
      • 1. Preliminary Examination Held Beyond Time Limits 13.11
      • 2. Rights to Counsel and Self-Representation 13.12
      • 3. Defense Right to Cross-Examine 13.13
      • 4. Defense Right to Present Evidence 13.14
      • 5. Defendant Was Mentally Incompetent at Preliminary Examination 13.15
      • 6. Reduction of Felony to Misdemeanor and Dismissal of Complaint in Interest of Justice 13.16
      • 7. Factual Findings 13.17
      • 8. Identity of Informant 13.18
      • 9. Failure to Provide Discovery Before or During Preliminary Examination 13.19
      • 10. Failure to File Information Within 15 Days After Holding Order 13.20
      • 11. Chart: Issues That Need Not or Cannot Be Reviewed by Pen C §995 Motion 13.21
    • C. Errors Peculiar to Indictments 13.22
    • D. Defense Counsel Ineffective at Preliminary Examination 13.23
  • VI. WHEN OBJECTION REQUIRED AT PRELIMINARY EXAMINATION TO PRESERVE ISSUE 13.24
  • VII. TIME AND MANNER OF MAKING MOTION
    • A. Setting Motion 13.25
    • B. Time When Motion Made and Heard 13.26
    • C. Supporting Memorandum and Response 13.27
    • D. Renewing Motion 13.28
    • E. Hearing on Pen C §995 Motion 13.29
  • VIII. EFFECT OF COURT'S PEN C §995 RULING
    • A. Bail 13.30
    • B. Subsequent Proceedings; When Two-Dismissal Rule Applies 13.31
  • IX. REVIEW UNDER PEN C §871.5
    • A. When Pen C §871.5 Motion Is Available 13.32
    • B. Noticing and Preparing Pen C §871.5 Motion 13.33
    • C. Penal Code §871.5 Hearing 13.34
    • D. Proceedings Following Reinstatement 13.35
    • E. Effect of Denial of Pen C §871.5 Motion 13.36
  • X. CHARGING AND RECHARGING UNDER PEN C §739 13.37
  • XI. CHART: AVAILABILITY AND COMPARISON OF PEN C §§739, 871.5 13.38
  • XII. REMANDING CASE TO MAGISTRATE; CORRECTING ERRORS IN TRIAL COURT 13.39
  • XIII. REMEDIES FOLLOWING RULING ON PEN C §995 MOTION
    • A. If Motion Is Denied
      • 1. Pretrial Petition for Writ of Prohibition 13.40
      • 2. Pretrial Petition for Writ of Habeas Corpus 13.41
      • 3. No Defense Right to Pretrial Appeal of Pen C §995 Ruling; Preserving Issue for Posttrial Appeal 13.42
    • B. If Motion Is Granted
      • 1. Appeal 13.43
      • 2. Writ of Mandate 13.44
      • 3. Recharge 13.45
      • 4. Dual Remedies: Recharge and Appeal 13.46

14

Pretrial and Trial Publicity; Access to Courts and Court Files

John T. Philipsborn

Edward J. Bronson

  • I. OVERVIEW 14.1
  • II. CHART: DEADLINES 14.2
  • III. CHECKLIST: MINIMIZING PREJUDICIAL PUBLICITY 14.3
  • IV. ETHICAL GUIDELINES FOR LAWYERS: CAL RULES OF PROF COND 5—120 14.4
  • V. APPROACHES TO TALKING TO THE MEDIA
    • A. In General 14.4A
    • B. Defense Relations With the Media 14.5
    • C. Prosecution Relations With the Media 14.6
    • D. Grand Jury 14.7
  • VI. ACCESS TO COURT RECORDS
    • A. Introduction 14.8
    • B. Court Files 14.8A
    • C. Publication of Identity of Sexual Assault Victims 14.9
    • D. Extended Coverage Provisions (Recording and Broadcasting) 14.10
    • E. Sealing Court Records and Restricted Access
      • 1. Grand Jury Transcripts 14.11
      • 2. Sealing Court Records 14.11A
  • VII. ACCESS AND RIGHT TO PUBLIC HEARINGS, AND RIGHT TO CLOSE THEM
    • A. Criminal Proceedings That Are Presumptively Open 14.12
    • B. Parties' Right to Public Hearings 14.13
    • C. Defense Right to Close Trial 14.14
    • D. Defense Right to Close Suppression Hearing 14.15
    • E. Closing Preliminary Hearing 14.16
    • F. Juvenile Delinquency Proceedings 14.17
    • G. Grand Jury Proceedings 14.18
    • H. Related Civil Proceedings 14.19
  • VIII. REMEDIES
    • A. Pretrial and Trial Publicity Orders (Protective, Restraining, or "Gag" Orders)
      • 1. Collecting Media Information 14.19A
      • 2. Scope of Order; Procedure 14.20
      • 3. Restraining Defense 14.21
      • 4. Restraining News Media 14.22
      • 5. Restraining Prosecution 14.23
      • 6. Restraining Witnesses and Others 14.24
      • 7. Enforcement: Contempt 14.25
      • 8. Review of Order 14.26
    • B. Change of Venue; Continuance 14.27
    • C. Court Trial 14.28
    • D. Jury Voir Dire 14.29
    • E. Jury Instructions 14.30
    • F. Sequestering Jury 14.31

15

Change of Venue

Edward J. Bronson

Bryan Edelman

John T. Philipsborn

  • I. OVERVIEW 15.1
  • II. CHART: DEADLINES 15.2
  • III. VENUE AND JURISDICTION DISTINGUISHED 15.3
  • IV. CHANGE OF VENUE MOTION BASED ON FAIR AND IMPARTIAL TRIAL REQUIREMENT
    • A. Legal Standard for Change of Venue Because No Fair and Impartial Trial Can Be Had
      • 1. Reasonable Likelihood Standard 15.4
      • 2. The Five Factors
        • a. Use of Five Factors 15.5
        • b. First Factor: Nature and Gravity of Offense 15.6
        • c. Second Factor: Nature and Extent of News Coverage 15.7
        • d. Third Factor: Size and Characteristics of Community 15.8
        • e. Fourth Factor: Status of Defendant in Community 15.9
        • f. Fifth Factor: Status of Victim in Community 15.10
      • 3. Additional Factors Considered by Court 15.10A
    • B. Proceedings in Trial Court on Motion
      • 1. Tactical Considerations
        • a. Defense Tactics
          • (1) Deciding Whether to Make Motion 15.11
          • (2) Defense Use of Public Opinion Surveys 15.12
          • (3) Steps to Reduce Publicity 15.13
          • (4) Documenting Media Coverage 15.14
          • (5) Making Motion 15.15
        • b. Prosecution Tactics 15.16
      • 2. Timing of Bringing Change of Venue Motion 15.17
      • 3. Format and Filing of Change of Venue Motion 15.18
      • 4. Prosecutor's Response 15.19
      • 5. Public Opinion Surveys 15.20
      • 6. Nature of Hearing on Change of Venue Motion
        • a. Presentation of Evidence 15.21
        • b. Trial Court Response 15.22
      • 7. Further Actions if Pretrial Motion Is Denied
        • a. Pretrial Writ Review 15.23
        • b. Requesting Expanded Jury Voir Dire 15.24
        • c. Renewing Motion After Voir Dire 15.25
        • d. Exhaustion of Peremptory Challenges 15.26
        • e. Seeking Additional Peremptory Challenges 15.27
    • C. Proceedings After Change of Venue Motion Is Granted
      • 1. Notifying Administrative Director of Courts 15.28
      • 2. Hearing to Determine New Venue 15.29
      • 3. Procedures if Case Is Moved to Another County 15.30
      • 4. Procedures if Jury Is Chosen in Another Venue to Sit in Original County 15.31
      • 5. Setting Aside Order Changing Venue 15.32
      • 6. Motion for Return of Action to Original Place of Trial 15.32A
  • V. OTHER GROUNDS FOR CHANGE OF VENUE
    • A. Jury Panel Exhausted 15.33
    • B. Parties' and Court's Convenience 15.34
  • VI. PROCEEDINGS IN APPELLATE COURTS
    • A. Pretrial Review of Trial Court Ruling
      • 1. Availability of Pretrial Review 15.35
      • 2. Pretrial Standards of Review and Reversibility 15.36
    • B. Review of Trial Court Ruling on Appeal
      • 1. Actions Necessary to Preserve Issue on Appeal 15.37
      • 2. Showing Required for Reversal on Appeal 15.38
  • VII. CHART: CALIFORNIA APPELLATE DECISIONS AFTER MAINE V SUPERIOR COURT 15.39
  • VIII. CHECKLIST: ALTERNATIVES TO CHANGE OF VENUE 15.40

16

Search and Seizure Motions

Carlie Ware

  • I. OVERVIEW 16.1
  • II. RECOGNIZING WHEN A SUPPRESSION MOTION IS AVAILABLE
    • A. In General 16.2
    • B. Legitimate Expectation of Privacy Is Prerequisite to Fourth Amendment Claim 16.3
    • C. Statutory Protection: The California Electronic Communications Privacy Act 16.3A
    • D. Motion Generally Not Available to Suppress Statements 16.4
    • E. Defendants Subject to "Search Conditions" 16.5
    • F. Motion to Suppress in Connection With Charge of Resisting Arrest 16.6
    • G. "Fruit of the Poisonous Tree" 16.7
  • III. PLEADING REQUIREMENTS
    • A. Warrantless Searches 16.8
    • B. Searches Supported by Warrant
      • 1. "Good Faith" Exception 16.9
      • 2. Controverting (or Traversing) Warrant (Franks Motion) 16.10
      • 3. Obtaining Information About Informant (Luttenberger Motion) 16.11
      • 4. Sealed Affidavits (Hobbs Motion) 16.12
  • IV. CHART: DEADLINES 16.13
  • V. WHEN TO MAKE MOTION
    • A. Misdemeanor Cases 16.14
    • B. Felony Cases 16.15
    • C. Other Situations 16.16
  • VI. APPLICATION OF FEDERAL SEARCH AND SEIZURE LAW IN CALIFORNIA
    • A. Hierarchy of Authority 16.17
    • B. Search Incident to Unlawful Arrest: Interplay Between Federal and State Law 16.17A
  • VII. PROSECUTION RESPONSE 16.18
  • VIII. EVIDENTIARY HEARING
    • A. Burdens of Proof and of Going Forward 16.19
    • B. Evidentiary Rules and Production of Evidence 16.20
  • IX. REVIEW OF PEN C §1538.5 RULING IN MISDEMEANOR CASES 16.21
  • X. DEFENSE OPTIONS WHEN PEN C §1538.5 MOTION IS DENIED AT PRELIMINARY EXAMINATION
    • A. Types of Review Available 16.22
    • B. Penal Code §995 Motion Compared With Pen C §1538.5 Motion After Preliminary Examination 16.23
  • XI. PROSECUTION OPTIONS WHEN MOTION IS GRANTED AT PRELIMINARY EXAMINATION
    • A. Case Dismissed Following Successful Defense Pen C §1538.5 Motion at Preliminary Examination
      • 1. Two-Dismissal Rule 16.24
      • 2. Discharge and Refile 16.25
    • B. Motion Granted but Defendant Held to Answer 16.26
    • C. Motion Denied but Magistrate Ruled Against Prosecution on Issue 16.27
    • D. Motion to Reinstate Complaint (Pen C §871.5) 16.28
    • E. Motion for De Novo Special Hearing (Pen C §1538.5(j)) 16.29
  • XII. APPELLATE REVIEW OF RULINGS IN FELONY CASES
    • A. Review Sought by Prosecution
      • 1. Dismissal Following Special Hearing 16.30
      • 2. Motion Granted but No Dismissal Following Special Hearing 16.31
      • 3. Review in Defense Appeal 16.32
    • B. Review Sought by Defense
      • 1. Pretrial Writ Review
        • a. Court of Appeal 16.33
        • b. California Supreme Court 16.34
      • 2. Postconviction Appeal 16.35

17

Motion to Disclose Informer's Identity

Garrick A. Byers

  • I. OVERVIEW 17.1
  • II. CHART: DEADLINES 17.2
  • III. DEFENSE MOTION
    • A. Defendant's Right to Seek Discovery 17.3
    • B. Remedy for Refusal to Disclose 17.4
    • C. Facts in Case That Alert Counsel to Need for Motion 17.5
    • D. Format, Service, and Filing Requirements 17.6
    • E. Making the Required Showing; Supporting Memorandum 17.7
    • F. Time to Make Defense Motion 17.8
    • G. Relationship to Pen C §1538.5 Motion 17.9
  • IV. PROSECUTION MOTION TO DENY, RESTRICT, OR DEFER 17.10
  • V. PROSECUTION RESPONSE TO DEFENSE MOTION
    • A. Prosecutor's Three Main Lines of Argument 17.11
    • B. Arguing That Informant's Identity Need Not Be Disclosed 17.12
    • C. Claiming Evid C §1041 Privilege 17.13
  • VI. IN-CUSTODY INFORMANTS TESTIFYING AS WITNESSES 17.14
  • VII. HEARINGS ON MOTION
    • A. First Hearing: Defense Must Show Materiality 17.15
    • B. In Camera Hearing 17.16
    • C. Third Hearing; Resolution of Claim of Privilege 17.17
    • D. Hearing on Requirement That Informant's Present Location Be Revealed (Eleazer Hearing) 17.18
  • VIII. PROSECUTION'S REFUSAL TO DISCLOSE IDENTITY OF INFORMANT WHEN ORDERED ALMOST ALWAYS REQUIRES ADVERSE FINDING, AND OFTEN DISMISSAL OR REDUCTION OF CHARGES 17.19
  • IX. APPELLATE REVIEW OF ORDER CONCERNING INFORMANT 17.20

18

Selected Pretrial Motions

Christopher Lamiero

Romany E. McNamara

  • I. OVERVIEW 18.1
  • II. PRETRIAL MOTION PRACTICE
    • A. Chart: Timing of Pretrial Motions 18.2
    • B. Relying on Authority 18.3
    • C. Checklist: Common Pretrial Motions 18.4
    • D. Form, Service, and Filing of Pretrial Motions
      • 1. Form of Motion 18.5
      • 2. Setting Motion for Hearing 18.6
      • 3. Service and Filing Requirements 18.7
    • E. Responding to Pretrial Motion 18.8
    • F. Reply by Moving Party 18.9
    • G. Motion for Appointment of Expert
      • 1. Nature of Motion 18.10
      • 2. Timing of Motion 18.11
      • 3. Burden of Proof 18.12
      • 4. Effect of Appointment on Confidentiality 18.13
      • 5. Appointment of Experts in Capital Cases 18.14
      • 6. Appellate Review 18.15
    • H. Murgia Motion: Dismissal Based on Discriminatory Prosecution
      • 1. Nature of Motion 18.16
      • 2. Standing 18.17
      • 3. Discovery Motion
        • a. Timing of Motion 18.18
        • b. Burden of Proof 18.19
        • c. Appellate Review 18.20
      • 4. Motion to Dismiss
        • a. Burden of Proof 18.21
        • b. Required Showing 18.22
        • c. Nature of Evidence 18.23
        • d. Timing of Motion 18.24
        • e. Appellate Review 18.25
    • I. Motion to Recuse Prosecutor
      • 1. Nature of Motion 18.26
      • 2. Standing 18.27
      • 3. Timing of Motion 18.28
      • 4. Burden of Proof and Evidentiary Hearing 18.29
      • 5. Illustrative Cases 18.30
      • 6. Appellate Review 18.31
    • J. Vindictive (Retaliatory) Prosecution
      • 1. Nature of Motion 18.32
      • 2. Timing of Motion 18.33
      • 3. Standing 18.34
      • 4. Burden of Proof 18.35
      • 5. Showing Vindictiveness 18.36
      • 6. Appellate Review 18.37
    • K. Petition for AIDS Testing 18.38

19

Right to Speedy Trial

James P. Lambe

  • I. OVERVIEW 19.1
  • II. CHART: DEADLINES 19.2
  • III. CONSTITUTIONAL CLAIMS
    • A. Preaccusation Delay: Due Process 19.3
    • B. Postaccusation Delay: Speedy Trial
      • 1. Federal and State Constitutions Apply 19.4
      • 2. United States Constitution 19.5
      • 3. California Constitution 19.6
    • C. Motion to Dismiss: Oral or Written 19.7
    • D. Tactical Considerations in Bringing Motion to Dismiss 19.8
    • E. Evidence to Prove Speedy Trial or Due Process Violation
      • 1. Rules of Evidence Apply But Subject to Greater Flexibility 19.9
      • 2. Proof of Prejudice 19.10
      • 3. Justification for Delay 19.11
      • 4. Attacking Showing of Justification 19.12
  • IV. STATUTORY CLAIMS
    • A. Statute of Limitations 19.13
      • 1. Determining Applicable Statute of Limitations 19.14
      • 2. Burden of Showing Prosecution Is Not Barred by Statute of Limitations; Pleading Requirements 19.15
      • 3. Raising Issue of Failure to Comply With Statute of Limitations; Waiver 19.16
    • B. Time for Arraignment 19.17
    • C. Preliminary Hearing
      • 1. Time Limits; Remedy for Failure to Comply With Pen C §859b 19.18
      • 2. Release of Defendant When Good Cause for Continuance Shown Under Pen C §859b 19.19
    • D. Filing of Information After Preliminary Hearing 19.20
    • E. Trial and Posttrial
      • 1. Statutory Deadlines for Trials in Felony Cases 19.21
      • 2. Statutory Deadlines for Trials in Misdemeanor Cases 19.22
      • 3. Statutory Deadlines When New Trial Is Granted 19.23
      • 4. Waiver of Statutory Deadline 19.24
      • 5. Defendant Requests or Consents to Trial Date Beyond 60 Days 19.25
      • 6. Limited Time Waiver and 10-Day "Trailing Period" 19.26
      • 7. Other Exceptions to Statutory Time Limits
        • a. Good Cause 19.27
        • b. Defendant Fails to Appear 19.28
        • c. Change of Venue 19.29
      • 8. Effect on Speedy Trial Deadlines of Amending Charging Document 19.30
      • 9. When Trial Begins in Relation to Statutory Speedy Trial Claims 19.31
      • 10. Motion to Dismiss Because of Failure to Bring Case to Trial Within Pen C §1382 Deadlines; Waiver 19.32
    • F. California Prisoner Serving State Time, With Another State Case Pending 19.33
    • G. Federal Prisoner in California With California State Case Pending 19.34
    • H. Out-of-State Prisoner With California Detainer 19.35
  • V. WHEN SPEEDY TRIAL ISSUES SHOULD BE RAISED 19.36
  • VI. SANCTIONS 19.37
  • VII. APPELLATE REVIEW
    • A. Remedies Available to Defense
      • 1. Review of Motions to Dismiss Before Judgment and After Trial 19.38
      • 2. Review of Motions to Dismiss in Misdemeanor Cases 19.39
      • 3. Review of Motions to Dismiss in Felony Cases Following Guilty Plea 19.40
      • 4. Review of Preliminary Hearing Speedy Trial Issues 19.41
      • 5. Pretrial Review of Trial Date 19.42
    • B. Remedies Available to Prosecution 19.43

20

Continuances

Michael C. McMahon

  • I. OVERVIEW 20.1
  • II. CHART: DEADLINES 20.2
  • III. TIME, FORM, AND SERVICE OF MOTION
    • A. Timeliness; Written and Oral Motions
      • 1. Pretrial 20.3
      • 2. Trial 20.4
    • B. Service on Parties; Notice to Witnesses 20.5
  • IV. GOOD CAUSE 20.6
    • A. Continuance to Secure Counsel; Defendant's Financial Statement 20.7
    • B. Time to Prepare 20.8
    • C. Absence of Witnesses 20.9
      • 1. Particular and Obtainable Witness; Witness Available Within Reasonable Time 20.10
      • 2. Material or Necessary Testimony; Testimony Not Cumulative 20.11
      • 3. Due Diligence 20.12
    • D. Incapacity of Defendant, Counsel, or Judge; Defendant's Failure to Appear 20.13
    • E. Other Court Commitments; Legislative Commitments
      • 1. Defense Attorney 20.14
      • 2. Prosecuting Attorney 20.15
      • 3. Member of Legislature 20.16
    • F. Prejudicial Publicity 20.17
    • G. Motion to Suppress 20.18
    • H. Desire to Try Felony First 20.19
    • I. Codefendants Joined 20.20
    • J. Judicial Diversion 20.21
    • K. Court Unavailable 20.22
    • L. Testimony of Defendant or Defense Witness 20.23
    • M. Amending Pleadings 20.24
    • N. Request for Continuance During Trial 20.25
    • O. Request for Continuance at Sentencing 20.25A
    • P. Cases Involving Sex Offenses and Cases Involving Minor Victims or Witnesses 20.26
    • Q. Convenience of Parties; Stipulations 20.27
  • V. PROOF; COURT'S RULING
    • A. Form of Proof 20.28
    • B. Court's Ruling 20.29
  • VI. LENGTH OF CONTINUANCE
    • A. Time Requirements 20.30
    • B. "Last Day" Cases 20.30A
    • C. Preliminary Hearings 20.31
  • VII. SANCTIONS 20.32
  • VIII. EFFECT OF CONTINUANCE ON DEFENDANT'S CUSTODY STATUS 20.33
  • IX. REVIEW
    • A. Penal Code §995 Motion 20.34
    • B. Writ 20.35
    • C. Appeal 20.36

21

Disqualification of Judge

Alex Landon

  • I. OVERVIEW 21.1
  • II. CHART: DEADLINES 21.2
  • III. PEREMPTORY DISQUALIFICATION
    • A. Who Can Be Disqualified; Effect of Disqualification Under CCP §170.6 21.3
    • B. Who May Exercise Challenge; Grounds 21.4
    • C. Number of Challenges
      • 1. One Motion for Each Side; Codefendants With Adverse Interests 21.5
      • 2. One Motion in Any One Action 21.6
    • D. Form, Notice, Content, and Proof of Motion
      • 1. Form and Notice of Oral and Written Motions 21.7
      • 2. Content of Motion; No Proof Required 21.8
    • E. Time for Motion
      • 1. In General 21.9
      • 2. Trier of Fact Must Not Have Determined Contested Issue of Fact 21.10
        • a. Examples: When Judge May Be Challenged Following Particular Judicial Determination 21.11
        • b. Examples: When Judge May Not Be Challenged Following Particular Judicial Determination 21.12
      • 3. Determining Timeliness Under Different Calendaring Systems
        • a. Rule When Case Assigned From Master Calendar 21.13
        • b. Rule When Case Assigned to Judge for All Purposes 21.14
        • c. Rule When Case Neither Assigned From Master Calendar Nor Assigned to Judge for All Purposes (10-Day/5-Day Rule) 21.15
        • d. Rule in One-Judge Courts 21.16
        • e. Rule in Other Cases 21.17
    • F. Availability of Motion in Case Involving Plea Bargain 21.17A
    • G. Availability of Motion in Supplemental Proceedings 21.18
    • H. Availability of Motion in Retrial Following Reversal 21.18A
    • I. Availability of Motion in Juvenile and Civil Proceedings 21.19
    • J. Stating Peremptory Challenge in Court (Attorney) 21.20
    • K. Strategy Considerations
      • 1. Advantages 21.21
      • 2. Disadvantages 21.22
      • 3. Discovering Information About Judges 21.23
      • 4. Judge's View of Peremptory Challenge (CCP §170.6) 21.24
      • 5. Defense Considerations in Cases Involving Multiple Defendants 21.25
      • 6. Tactical Timing of Motion 21.26
  • IV. DISQUALIFICATION FOR CAUSE
    • A. Who Can Be Disqualified; Grounds; Exceptions 21.27
    • B. Statement of Disqualification (Challenge for Cause) 21.28
    • C. Possible Responses by Judge Being Challenged 21.29
    • D. Powers of Judge Either Disqualified or Being Challenged 21.30
    • E. Procedure After Challenge for Cause and Any Response Filed 21.31
    • F. Waiving Disqualification; Exceptions 21.32
    • G. Hearing on Challenge for Cause 21.33
  • V. DISQUALIFICATION UNDER DUE PROCESS CLAUSE 21.34
  • VI. REVIEW OF DISQUALIFICATION ORDER 21.35

22

Lineups and Identification

Douglas W. Otto

Brentford J. Ferreira

  • I. OVERVIEW 22.1
  • II. TERMS 22.2
  • III. IDENTIFICATION PROCEEDINGS
    • A. Lineups
      • 1. Description of Lineups 22.3
      • 2. Right to Counsel at Lineup 22.4
      • 3. Advantages of Fair Lineup 22.5
      • 4. What Defense Counsel Should Do at Lineup
        • a. Theory of Representation at Lineups; What to Bring 22.6
        • b. Lineup Team 22.7
        • c. Activities Before Lineup Begins
          • (1) In General 22.8
          • (2) Procedure if Counsel Will Be Late in Arriving 22.9
          • (3) Interviewing Client 22.10
          • (4) Client's Refusal to Participate in Lineup 22.11
          • (5) Defense Counsel's Actions to Help Ensure Fair Lineup 22.12
        • d. Defense Counsel's Activities During Lineup 22.13
        • e. Defense Counsel's Activities After Lineup 22.14
    • B. Photo Identifications 22.15
    • C. One-Person Showups 22.16
    • D. Defense (Evans) Lineups 22.17
    • E. Identification Secured or Improved Through Hypnosis 22.18
    • F. Dog-Tracking Evidence 22.19
    • G. Voice Identifications 22.20
  • IV. CHALLENGING EYEWITNESS IDENTIFICATION
    • A. Summary of Defense Counsel's Remedies for Failure to Hold Lineup or for Tainted Identification Proceeding 22.21
    • B. Gathering Information
      • 1. Viewing Crime Scene 22.22
      • 2. Interviewing and Investigating Witnesses 22.23
    • C. Challenging Eyewitness Identification at Preliminary Hearing 22.24
    • D. In Limine Motion at Trial 22.25
    • E. Challenging Eyewitness Identification Before Trier of Fact
      • 1. Lineup Held but Defendant Not Identified 22.26
      • 2. Client Identified at Lineup; Procedure Held Lawful 22.27
      • 3. Defense Witnesses and Strategies
        • a. Possible Defense Witnesses 22.28
        • b. Eyewitness Identification Expert 22.28A
        • c. Cross-Examination of Identification Witness 22.29
      • 4. Instructions 22.30
      • 5. Closing Argument 22.31
  • V. PROSECUTION PRESENTATION OF EYEWITNESS IDENTIFICATION 22.32
  • VI. PROSECUTION PRESENTATION OF VICTIM PHOTOGRAPHS 22.33
  • VII. APPELLATE REVIEW 22.34

23

Confessions and Admissions

Hon. Joseph A. Brandolino

Jason M. Cox

  • I. OVERVIEW 23.1
  • II. CHART: DEADLINES 23.2
  • III. CONFESSIONS AND ADMISSIONS: DEFINITIONS AND DIFFERENCES 23.3
  • IV. HOW DEFENSE COUNSEL CAN PREVENT STATEMENTS BY DEFENDANT 23.4
  • V. SPOTTING ISSUES CONCERNING DEFENDANT'S STATEMENT 23.5
  • VI. ISSUES REGARDING THE INTRODUCTION OF STATEMENTS
    • A. Hearsay Problems 23.6
    • B. Authentication 23.7
    • C. Secondary-Evidence Rule 23.8
  • VII. PROCEDURES REGARDING THE EXCLUSION OF STATEMENTS
    • A. Statements Related to Fourth Amendment Issues
      • 1. Statements Resulting From Fourth Amendment Violations Must Be Raised by Pen C §1538.5 Motion 23.9
      • 2. Burden to Be Satisfied in Pen C §1538.5 Motion Concerning Statement 23.10
    • B. Statements Not Involving Fourth Amendment Issues
      • 1. Procedures for Raising Statement Errors Not Involving Fourth Amendment Issues 23.11
      • 2. Tactical Considerations in Choosing Appropriate Procedural Vehicle 23.12
      • 3. Burden of Proof for Voluntariness and Miranda Issues 23.13
      • 4. Burden of Proof for Sixth Amendment Issues 23.14
    • C. Calling Defendant as Witness at Common Law Suppression Hearing or at Pen C §1538.5 Hearing Challenging Statement 23.15
  • VIII. MIRANDA V ARIZONA
    • A. Miranda Rule 23.16
    • B. Requirement of Interrogation 23.17
    • C. Requirement That Questioning Be by Police Officer or Agent 23.18
    • D. Requirement That Suspect Be in Police Custody 23.19
    • E. Sufficiency and Form of Advice of Rights 23.20
    • F. Assertion of Miranda Rights 23.21
    • G. Sufficiency of Waiver; Capacity to Waive 23.22
    • H. Effect of Request for Counsel Versus Invocation of Right to Remain Silent; Difference Between Fifth and Sixth Amendment Right to Counsel 23.23
    • I. Multiple Interrogations and Admonitions 23.24
    • J. Exceptions to Miranda Requirement: Rescue, Public Safety, and Officer Safety Doctrines 23.25
    • K. Interrogating Police Officers and Other Public Employees 23.26
    • L. Interrogation in Another Country 23.27
    • M. Application of Miranda to Juveniles 23.28
    • N. Application of "Fruit of the Poisonous Tree" Doctrine: Subsequent Statement 23.29
    • O. Application of "Fruit of the Poisonous Tree" Doctrine: Physical Evidence 23.30
  • IX. VOLUNTARINESS
    • A. Involuntary Statements Obtained by Police Are Inadmissible 23.31
    • B. When Statements Are Involuntary 23.32
  • X. CHALLENGING CODEFENDANT'S STATEMENT
    • A. Fifth Amendment Challenges
      • 1. Defendant May Challenge Voluntariness of Third Party's Statement 23.33
      • 2. Defendant May Not Raise Violation of Another's Miranda Rights 23.34
    • B. Confrontation Clause Challenges
      • 1. Crawford v Washington 23.35
      • 2. Aranda-Bruton Rule 23.36
    • C. Fourth Amendment Challenge 23.37
  • XI. SPECIAL PROBLEMS
    • A. Providing Defendant's Statement to Prosecution 23.38
    • B. Polygraphs (Lie Detectors) 23.39
    • C. Effect of Statements Provided by Counsel During Plea Negotiations 23.40
  • XII. CORPUS DELICTI REQUIREMENT
    • A. Corpus Delicti Need Not Be Proved Before Statement Can Be Introduced 23.41
    • B. Corpus Delicti Requirements for Homicides, Similars, Conspiracies 23.42
  • XIII. EFFECT OF DELAY IN ARRAIGNMENT ON ADMISSIBILITY OF STATEMENT 23.43
  • XIV. SCOPE OF THE SIXTH AMENDMENT RIGHT TO COUNSEL 23.44
  • XV. USING EXCLUDED STATEMENTS
    • A. Involuntary Statements 23.45
    • B. Statement Obtained in Violation of Miranda 23.46
    • C. Statement Excluded Because of Fourth Amendment Error 23.47
    • D. Statement Excluded Because of Sixth Amendment Error 23.48
    • E. Prosecution Bound by Defendant's Statement (Toledo Doctrine) 23.49
    • F. Counsel Opens Door to Admission of Otherwise Inadmissible Statement 23.50
    • G. Defendant's Right Not to Take Stand and Not to Testify; Griffin Error 23.51
  • XVI. PROSECUTORS' ETHICAL DUTIES CONCERNING REPRESENTED DEFENDANTS 23.52
  • XVII. ENSURING COMPLIANCE WITH EXCLUSION ORDERS 23.53
  • XVIII. REQUESTING JURY INSTRUCTIONS CONCERNING STATEMENTS 23.54

24

Prior Convictions and Uncharged Misconduct

Brent Riggs

James P. Cooper III

  • I. OVERVIEW 24.1
  • II. CHART: DEADLINES 24.2
  • III. USING PRIOR TO ELEVATE STATUS OF CRIME OR TO ENHANCE SENTENCE
    • A. What Qualifies as Prior in Charging and Sentencing
      • 1. When Prior Occurred; Effect of Appeal, Pronouncement of Judgment, Pen C §654, and Expungement 24.3
      • 2. Foreign Priors 24.4
      • 3. Offenses by Juveniles 24.5
      • 4. No Jeopardy Attaches to Earlier Rulings on Priors; Pen C §654; Collateral Estoppel; Res Judicata 24.6
    • B. How Priors May Be Used to Elevate Crime or Enhance Sentence 24.7
      • 1. Using Priors in New Misdemeanor Prosecutions
        • a. Enhancing Sentence 24.7A
        • b. Mandatory Minimum Jail or Prison Sentences 24.8
        • c. Drunk Driving Cases: License Restrictions; Notice to Convicting Court of New Case 24.9
        • d. Elevation of Infraction to Misdemeanor; Diversion 24.10
      • 2. Using Priors in New Felony Prosecutions
        • a. Priors That Make Innocent Acts Into Crimes 24.11
        • b. Elevation of Misdemeanors to Felonies 24.12
        • c. Elevation of Wobblers to Straight Felonies 24.13
        • d. Enhancing Sentence 24.14
        • e. Denying Probation 24.15
        • f. Selecting Prison Term; Consecutive or Concurrent Sentence; Death Penalty 24.16
        • g. Miscellaneous Consequences 24.17
    • C. Charging and Plea Bargaining Prior
      • 1. Chart: When Priors Must Be Pleaded and Proved or Admitted in Felony Cases 24.18
      • 2. Decision on Whether to Charge 24.19
      • 3. How to Plead Prior 24.20
      • 4. Amending Pleading to Add Charge of Prior 24.21
      • 5. Dismissing Priors 24.22
    • D. Confessing Prior 24.23
    • E. Trying Prior
      • 1. Speedy Trial Rules; Court or Jury Trial 24.24
      • 2. Unification Versus Bifurcation
        • a. When Priors That Must Be Proved to Jury Can and Cannot Be Tried Separately From Current Offense; Conditional Bifurcation 24.25
        • b. Chart: Bifurcation of Proof of Prior Convictions [Deleted] 24.26
      • 3. Evidence 24.27
    • F. Challenging Prior
      • 1. Differences Between Challenging Constitutionality and Other Challenges to Use of Prior Conviction 24.28
      • 2. Challenging Truth or Use of Prior Conviction 24.29
      • 3. Challenging Constitutionality of Prior Conviction
        • a. Grounds for Challenging Constitutionality of Prior
          • (1) Summary of Grounds 24.30
          • (2) Boykin-Tahl Challenges to Prior Convictions Based on Guilty Pleas
            • (a) Boykin-Tahl Advisements Required for Both Felony and Misdemeanor Pleas 24.31
            • (b) Alleging Denial of Boykin-Tahl Rights Sufficient to Challenge Allegation of Prior Conviction 24.32
          • (3) Other Constitutional Challenges to Convictions Based on Guilty Pleas 24.33
          • (4) Challenges to Prior Convictions Based on Ineffective Assistance of Counsel 24.34
        • b. Procedures for Challenging Constitutionality of Prior
          • (1) Summary of Procedures 24.35
          • (2) Procedure for Motion to Strike Prior in Court in Which Current Case Charging Prior Is Pending
            • (a) Timing of Motion to Strike 24.36
            • (b) Conduct of Hearing 24.37
          • (3) Procedure Concerning Writ of Coram Nobis or Habeas Corpus in Rendering Court 24.38
          • (4) Challenging Plea to Prior (Yurko Error) 24.39
    • G. Effect of Finding Prior Conviction Invalid or Unconstitutional
      • 1. Current Court Finds Prior Invalid 24.40
      • 2. Rendering Court Finds Prior Invalid 24.41
    • H. Court's Authority to Strike Prior Conviction Under Pen C §1385 24.42
    • I. Review of Dismissal of Prior-Conviction Allegation 24.43
  • IV. PROCEDURES CONCERNING PRIORS UNDER VEH C §§14601, 14601.1, 14601.2, 23103, 23152—23153 24.44
  • V. USE OF PRIOR CONVICTIONS TO IMPEACH WITNESS
    • A. Rules on Admitting Prior Convictions to Impeach 24.45
    • B. Which Priors Involve Moral Turpitude 24.46
    • C. Trial Court Must Exercise Discretion Under Evid C §352 in Determining Admissibility of Priors to Impeach 24.47
    • D. Procedures for Impeaching Witness With Prior and for Challenging Admission of Priors to Impeach
      • 1. Impeaching Witness With Prior 24.48
      • 2. Stating Objection to Use of Prior to Impeach Witness 24.49
      • 3. Instructions on Impeaching Prior 24.50
      • 4. Reviewing Impeachment With Prior on Appeal 24.51
  • VI. USE OF EVIDENCE OF UNCHARGED MISCONDUCT ("OTHER BAD ACTS")
    • A. Admissibility of Other Bad Acts
      • 1. To Prove Disputed Fact Other Than Defendant's Propensity to Commit Such Acts 24.52
      • 2. To Prove Propensity 24.52A
    • B. Introducing Evidence of Other Crimes 24.53
    • C. Procedure for Challenging Evidence of Other Crimes 24.54
    • D. Instructions 24.55

25

Termination of Prosecution Without Judgment

Susan Horst

James A. Lassart

  • I. INTRODUCTION 25.1
  • II. CHART: DEADLINES 25.2
  • III. DISCHARGE
    • A. Discharge for Failure to Initiate Prosecution 25.3
    • B. Discharge for Defendant to Testify for Prosecution or Defense 25.4
  • IV. CIVIL COMPROMISE
    • A. Misdemeanor Cases 25.5
    • B. Felony Cases 25.6
  • V. DEMURRER 25.7
  • VI. DISMISSAL IN THE INTERESTS OF JUSTICE (PEN C §1385)
    • A. Procedures
      • 1. Motion by Prosecutor or Court, Not Defendant 25.8
      • 2. Time for Motion 25.9
      • 3. Notice to Prosecutor 25.10
      • 4. Motion May Be Made in Jury's Presence 25.11
      • 5. Statement of Reasons and Entry in Disposition Report 25.12
    • B. All or Part of Case May Be Dismissed 25.13
    • C. Court's Discretion Under Pen C §1385 25.14
    • D. Limits on Court's Discretion 25.15
    • E. Appropriate Grounds for Pen C §1385 Dismissal
      • 1. Insufficient Evidence 25.16
      • 2. Plea Agreement 25.17
      • 3. Enhancement Allegations 25.18
      • 4. Other Grounds for §1385 Dismissal 25.19
    • F. Improper Grounds for §1385 Dismissal 25.20
  • VII. DISMISSAL ON OTHER GROUNDS
    • A. Diversion (Pen C §§1000—1001.80) 25.21
    • B. Alternative Dispute Resolution 25.22
    • C. Successful Completion of Drug Treatment Probation (Pen C §1210.1) 25.23
    • D. Double Jeopardy and Related Issues 25.24
    • E. Kellet Error 25.24A
    • F. Denial of Speedy Trial Rights
      • 1. Delay in Prosecuting Case 25.25
      • 2. Defendant Sentenced and Imprisoned on Another Charge
        • a. State Imprisonment (Pen C §§1203.2a, 1381) 25.26
        • b. Federal and Out-of-State Imprisonment (Pen C §§1381.5, 1389) 25.27
    • G. Nonfelony Vehicle Code Violations Pending When Sentenced to State Prison or Committed to Youth Authority 25.28
    • H. Action Against Registered Vehicle Owner After Vehicle Sold (Veh C §§5602(a)—(b), 40210(b)) 25.29
    • I. Treatment of Disabled Defendant 25.30
    • J. Preliminary Hearing Not Completed in Single Session 25.31
    • K. No Probable Cause to Believe Public Offense Has Been Committed
      • 1. Dismissal of Felony Complaint at Preliminary Hearing (Pen C §871) 25.32
      • 2. Dismissal of Misdemeanor Complaint (Pen C §991) 25.33
      • 3. Penal Code §995 Dismissal 25.34
    • L. Prosecution of Adult Who Committed Crime When Juvenile 25.35
    • M. Offense No Longer Crime 25.36
    • N. Ex Post Facto Clause Violation 25.36A
    • O. Prosecution Failure to Disclose Material Information
      • 1. Refusal to Disclose Informant's Identity 25.37
      • 2. Failure to Provide Discovery 25.38
    • P. Material Witness Unavailable Because of State Action 25.39
    • Q. Discriminatory Law Enforcement 25.40
    • R. Lesser Included Offense 25.41
    • S. Finding That Capital Defendant Is Intellectually Disabled 25.42
  • VIII. MOTION FOR MISTRIAL
    • A. Grounds for Mistrial 25.43
    • B. Jeopardy 25.44
    • C. Defense Motion for Mistrial 25.45
    • D. Prosecution Motion for Mistrial 25.46
  • IX. DISMISSAL AS BAR TO FURTHER PROSECUTION
    • A. General Rules 25.47
    • B. Constitutional Grounds 25.47A
    • C. Statutory Dismissals for Misdemeanors 25.47B
    • D. Statutory Dismissals and Exceptions for Felonies 25.47C
    • E. Additional Reasons for Allowing Refiling of Violent Felonies 25.47D
    • F. Recharge After Dismissal Under Pen C §17(b)(5) 25.48
  • X. APPELLATE REVIEW
    • A. Dismissal Under Pen C §1385 and Other Dismissal Statutes 25.49
    • B. Writ of Mandate or Prohibition 25.50

26

Pleas and Case Settlement

Anthony J. Patti

  • I. OVERVIEW 26.1
  • II. CHART: DEADLINES 26.2
  • III. PRESENCE OF DEFENDANT 26.3
  • IV. REPRESENTATION BY COUNSEL 26.4
  • V. FORM OF PLEA 26.5
  • VI. NOT GUILTY PLEA 26.6
  • VII. GUILTY AND NO CONTEST PLEAS
    • A. Differences Between Guilty and No Contest Pleas 26.7
    • B. Competence to Enter Guilty or No Contest Plea 26.8
    • C. Manner of Entry of Plea 26.9
    • D. Requirements on Plea of Guilty or No Contest
      • 1. Summary of Requirements; Standard on Review 26.10
      • 2. Constitutional Rights That Must Be Included in Advisement and Waiver 26.11
      • 3. Discussion of Constitutional Rights 26.12
      • 4. Factual Basis for Plea in Felony Cases 26.13
      • 5. Plea Must Be Knowing, Intelligent, and Voluntary 26.14
      • 6. Advisement of Direct Consequences of Plea of Guilty or No Contest 26.15
      • 7. Checklist: Most Common Direct Consequences of Which Defendant Must Be Advised 26.16
      • 8. Checklist: Miscellaneous Requirements Concerning Plea of Guilty or No Contest 26.17
    • E. Effect of Guilty and No Contest Pleas on Right to Appeal 26.18
    • F. Submitting Case on Transcript From Preliminary Hearing or on Police Report ("Slow Plea") 26.19
    • G. Pleading Guilty Before Holding Order 26.20
    • H. Withdrawing Guilty or No Contest Plea 26.21
    • I. Admissibility of Guilty or No Contest Plea in Related Civil Case 26.22
  • VIII. ONCE IN JEOPARDY PLEA (DOUBLE JEOPARDY)
    • A. Basis of Plea; Trial of Plea 26.23
    • B. When Jeopardy Attaches 26.24
    • C. Jeopardy Concerning Greater and Lesser Offenses 26.25
    • D. What Does Not Constitute Violation of Double Jeopardy 26.26
    • E. Discharge of Jury 26.27
    • F. Jeopardy in Juvenile Proceedings 26.28
  • IX. RES JUDICATA AND COLLATERAL ESTOPPEL
    • A. Definitions of Res Judicata and Collateral Estoppel 26.29
    • B. Raising Defense of Res Judicata or Collateral Estoppel by Demurrer or Plea 26.30
    • C. Requirements for Collateral Estoppel 26.31
    • D. Collateral Estoppel Between Criminal and Civil Trials; Effect of Finding at Probation Revocation Hearing 26.32
    • E. Collateral Estoppel Between Criminal Trials and Administrative Agency Proceedings 26.33
  • X. PLEA OF FORMER CONVICTION OR FORMER ACQUITTAL 26.34
  • XI. NOT GUILTY BY REASON OF INSANITY 26.35
  • XII. CASE SETTLEMENT (PLEA BARGAINING)
    • A. Terminology Surrounding Plea Bargaining 26.36
    • B. Time of Plea Bargaining 26.37
    • C. Limitations on Plea Bargaining
      • 1. Felonies Specified in Pen C §1192.7(a) 26.38
      • 2. Prior Felony Convictions 26.39
      • 3. Illegal Sentence 26.40
    • D. Evidence of Failed Plea Bargain May Be Admissible at Trial 26.41
    • E. Defense Considerations in Plea Bargaining
      • 1. Negotiating With Prosecutor 26.42
      • 2. Strategies to Improve Defendant's Plea Bargaining and Sentencing Options; Alternatives to Jail 26.43
      • 3. Presenting Plea Bargain to Defendant 26.44
      • 4. Options When Defendant Does Not Admit Guilt 26.45
    • F. Prosecution Considerations in Plea Bargaining 26.46
    • G. Preplea Report (Pen C §1203.7(a)) 26.47
    • H. Limits on Judge's Role in Plea Bargaining 26.48
    • I. "Indicated Sentence" Does Not Require Prosecution's Consent 26.49
    • J. Recording Plea Bargain 26.50
    • K. When Judge Fails to Approve Plea Bargain 26.51
    • L. Result When Defendant Fails to Appear for Sentencing on Plea Bargain 26.52
    • M. Remedies for Breach of Plea Bargain 26.53
    • N. Remedy for IAC That Resulted in Rejection of Offered Plea Bargain 26.54

27

Deferred Entry of Judgment, Diversion, and Preplea Probation Report

Adam B. Ryan

Terry L. White

  • I. OVERVIEW 27.1
  • II. CHART: DEADLINES 27.2
  • III. DEFERRED ENTRY OF JUDGMENT
    • A. Narcotics and Drug Abuse Cases 27.3
      • 1. Eligibility Requirements
        • a. Deferrable Offense 27.4
        • b. Other Requirements 27.5
      • 2. When to Request Deferred Entry of Judgment; Bringing Motions Before Deferred Entry of Judgment Accepted 27.6
      • 3. Initial Determination by Prosecutor 27.7
      • 4. Deferred Entry of Judgment Hearing 27.8
      • 5. Challenging Denial of Deferred Entry of Judgment 27.9
      • 6. Successful Termination 27.10
      • 7. Unsuccessful Termination 27.11
    • B. Child Abuse and Neglect 27.12
  • IV. DIVERSION PROGRAMS
    • A. Generally Applicable Law 27.13
    • B. Misdemeanor Diversion 27.14
    • C. Diversion for Persons With Cognitive Developmental Disabilities 27.15
    • D. Diversion for Traffic Violators 27.16
    • E. Bad Check Diversion
      • 1. Generally 27.17
      • 2. Eligibility 27.18
      • 3. Procedure; Fees 27.19
    • F. Military Diversion 27.20
    • G. Parental Diversion 27.21
    • H. Civil Compromise Agreements and Alternatives for Merchant Victims 27.22
    • I. AIDS Prevention Programs in Drug Abuse and Prostitution Cases 27.23
    • J. Diversion Fees 27.24
    • K. Nonstatutory Court Diversion 27.25
  • V. POSTCONVICTION DRUG TREATMENT UNDER PROPOSITION 36 27.26
  • VI. PREPLEA PROBATION REPORTS
    • A. Procedure 27.27
    • B. Checklist: Reasons for Requesting Preplea Probation Report 27.28
  • VII. USE OF STATEMENTS MADE BY DEFENDANT DURING DEFERRED ENTRY OF JUDGMENT, DIVERSION, OR PROBATION OFFICER'S INVESTIGATION 27.29

28

Trial by Court or Jury

Niki Solis

  • I. OVERVIEW 28.1
  • II. COURT TRIAL 28.2
  • III. RIGHT TO TRIAL BY JURY
    • A. Checklist: Matters on Which Right to Jury Trial Exists in Criminal Cases 28.3
    • B. Checklist: Matters on Which No Right to Jury Trial Exists in Criminal Cases 28.4
    • C. Right to Jury Trial 28.5
  • IV. WAIVER OF JURY TRIAL
    • A. Right to Waive Jury Trial 28.6
    • B. Defendant's Capacity to Waive Jury Trial 28.7
    • C. Advice and Waiver Required 28.8
    • D. Waiver Must Be in Open Court 28.9
    • E. Waiver by Pro Per Defendant 28.10
    • F. Time for Waiver 28.11
    • G. Renewal of Waiver After Pleadings Amended 28.12
    • H. Consent of Prosecutor and Defense Counsel 28.13
    • I. Judge's Concurrence Not Required for Jury Trial Waiver 28.14
    • J. Failure to Obtain Waiver 28.15
    • K. Waiver of Jury Trial on Special Circumstances Allegation in Capital Cases 28.16
    • L. Waiver of Jury Trial on Enhancements and Prior Convictions 28.17
    • M. Waiver of Jury at Sanity Phase of Trial 28.18
    • N. Court Trials Involving Submission on Less Than All Evidence; Slow Plea of Guilty
      • 1. Description of Shortened Court Trial and of Slow Plea of Guilty 28.19
      • 2. Waiver Required for Slow Plea of Guilty 28.20
      • 3. Appellate Standards When Considering Advice and Waiver on Slow Plea 28.21
    • O. Defense Considerations
      • 1. Differences Between Judge and Jury 28.22
      • 2. Checklist: Defense Reasons for Waiving Jury 28.23
        • a. Preserving Appellate Issues 28.24
        • b. Court Trial Used as Mitigation Hearing 28.25
        • c. Speedy Disposition 28.26
        • d. Evidentiary Considerations 28.27
    • P. Prosecution Considerations 28.28
  • V. MOTION TO WITHDRAW WAIVER 28.29
  • VI. CHOICE OF JUDGE IN COURT TRIAL; USING REFEREE OR COMMISSIONER 28.30
  • VII. PROCEDURE DURING COURT TRIAL
    • A. Types of Evidence That May Be Presented 28.31
    • B. Jeopardy 28.32
    • C. Admissibility of Evidence 28.33
    • D. Order of Proof 28.34
    • E. Role of Trial Judge 28.35
    • F. Instructions 28.36
    • G. Argument 28.37
    • H. Findings 28.38
  • VIII. RETRIALS 28.39

29

Jury Selection

Michael Begovich

  • I. OVERVIEW 29.1
  • II. CHART: DEADLINES 29.2
  • III. CHALLENGES TO PANEL
    • A. Selection of Trial Jury Panel
      • 1. Trial Jury Panel Defined 29.3
      • 2. Random Selection of Panel Members 29.4
      • 3. Exemption or Excuse From Jury Service 29.5
      • 4. Vicinage Right Does Not Limit Jurors to Residents of County Where Crime Occurred 29.6
    • B. Procedure for Challenging Panel
      • 1. Timing; Preparing Motion 29.7
      • 2. Legal Bases for Challenging Panel 29.8
      • 3. Representative Cross-Section Challenge
        • a. Right to Jury Panel That Represents Cross Section of Community 29.9
        • b. Prima Facie Case 29.10
      • 4. Hearing on Motion Challenging Panel 29.11
  • IV. THE VOIR DIRE PROCESS
    • A. Purpose of Voir Dire 29.12
    • B. Selection of Prospective Jurors From Master List 29.13
    • C. Number of Jurors 29.14
    • D. Order of Questioning and Challenges 29.15
    • E. Areas of Examination Concerning Challenges 29.16
    • F. Attorney's Right to Examine Jurors; Jury Questionnaires 29.17
    • G. In Camera Voir Dire 29.18
    • H. Discovery of Juror Information by Defense and Prosecution 29.19
    • I. Discovery of Juror Information Using the Internet 29.19A
    • J. Selecting Alternates 29.20
  • V. CHALLENGING INDIVIDUAL JURORS FOR CAUSE
    • A. No Limit on Number of Challenges for Cause 29.21
    • B. Grounds for Challenge for Cause
      • 1. General Disqualification 29.22
      • 2. Implied Bias 29.23
      • 3. Actual Bias 29.24
    • C. Trial of Challenge to Individual Juror for Cause 29.25
    • D. Preserving Right to Review of Trial Court's Ruling on Challenge for Cause 29.26
  • VI. PEREMPTORY CHALLENGES
    • A. Definition 29.27
    • B. Number 29.28
    • C. Questioning in Aid of Peremptory Challenges 29.29
    • D. Limitations on Use of Peremptory Challenges Under People v Wheeler and Batson v Kentucky
      • 1. Systematic Exclusion of Jurors Because of Membership in "Cognizable Group" Prohibited 29.30
      • 2. Procedural Aspects of Batson-Wheeler Motion 29.31
        • a. Making a Prima Facie Case 29.32
        • b. Trial Court's Response 29.33
        • c. Responding Party 29.34
        • d. Trial Court's Determination of Motive 29.35
      • 3. Successful Motion Requires New Panel Absent Waiver or Consent 29.36
      • 4. Review 29.37
  • VII. TECHNIQUES IN JURY SELECTION
    • A. Aids to Jury Selection 29.38
    • B. Courtroom Techniques
      • 1. Persuasive Communication During Voir Dire 29.39
      • 2. Audience Analysis During Voir Dire 29.40
      • 3. Juror Profiling 29.41
        • a. Four Juror Types 29.42
        • b. Juror Dynamics During Deliberations 29.43
        • c. Typical Prosecution Juror 29.44
        • d. Typical Defense Juror 29.45
      • 4. Criminal Defense Jury Selection Techniques 29.46
        • a. Request "Hot Button" Voir Dire 29.47
        • b. Get Prospective Jurors to Talk During Voir Dire 29.48
        • c. Encourage Disclosure With Your Words 29.49
        • d. Keep Record-Keeping to a Minimum 29.50
        • e. Use Voir Dire as Opportunity to Educate and Desensitize Prospective Jurors 29.51
        • f. Make Favorable Impression on Jury 29.52
        • g. Maximize Jurors' Favorable Perception of Your Client 29.53
        • h. Follow Up on Disclosures That Reveal Experiences That Could Affect Decision-Making 29.54
        • i. Stop When You Are Satisfied 29.55
      • 5. Tips for Jury Selection by Prosecution 29.55A
      • 6. Reading Prospective Juror's Body Language 29.56
    • C. Exercising Peremptory Challenges 29.57
    • D. Sample Voir Dire Questions 29.58
  • VIII. POSTVERDICT INTERVIEW TIPS 29.59

30

Preparation and Presentation of Case and Argument

Brendon D. Woods

  • I. OVERVIEW 30.1
  • II. PREPARATION FOR TRIAL
    • A. Importance of Early Preparation 30.2
    • B. Reading Reports and Files of Present and Related Cases 30.3
    • C. Visiting Crime Scene and Viewing Physical Evidence 30.4
    • D. Witnesses
      • 1. Selecting Witnesses for Trial 30.5
      • 2. Anticipating Witness Problems 30.6
      • 3. Using Interpreters 30.7
      • 4. Preparing Witnesses to Testify 30.8
      • 5. Interviewing Opposition Witnesses 30.9
    • E. Evidence in Place of Witnesses 30.10
    • F. Examining and Testing Physical Evidence; Further Investigation 30.11
    • G. Demonstrative Evidence
      • 1. Reasons for Using Demonstrative Evidence 30.12
      • 2. Selecting and Creating Demonstrative Evidence 30.13
    • H. Preparing Motions and Trial Briefs; Trial Notebook 30.14
    • I. Developing Theory of Case 30.15
    • J. Using Jury Instructions to Prepare Case 30.16
  • III. PRESENTATION OF CASE
    • A. Deciding What Type of Jurors Are Needed 30.17
    • B. Pre—Voir Dire Conference 30.18
    • C. Motions in Limine 30.19
    • D. Opening Statements
      • 1. Purpose and Style 30.20
      • 2. Timing 30.21
    • E. Direct Examination
      • 1. Preparation for Direct Examination 30.22
      • 2. Order of Presentation of Witnesses 30.23
      • 3. Style of Direct Examination 30.24
    • F. Cross-Examination 30.25
    • G. Objections
      • 1. Trial Strategy 30.26
      • 2. Objections to Attorney Misconduct 30.27
    • H. Deciding Whether Defendant Should Testify 30.28
    • I. Rebuttal and Surrebuttal 30.29
    • J. Argument
      • 1. Description and Time Limits 30.30
      • 2. Preparing Final Argument 30.31
      • 3. Argument Techniques 30.32
      • 4. Improper Argument 30.33

31

Selected Trial Motions

E. Thomas Dunn, Jr.

Alan J. Crivaro

  • I. OVERVIEW 31.1
  • II. DEADLINES IMPOSED BY LOCAL RULES AND PRACTICE 31.2
  • III. CHECKLIST: TRIAL MOTIONS 31.3
  • IV. GENERAL CONSIDERATIONS FOR TRIAL MOTION PRACTICE
    • A. Make Motion as Soon as Practicable 31.4
    • B. Deciding Whether Motion Should Be Written or Oral 31.5
    • C. Hearings on Trial Motions Should Be Reported 31.6
    • D. Remedies 31.7
  • V. EVIDENTIARY MOTIONS
    • A. In Limine Motions
      • 1. Advantages of Settling Important Evidentiary Issues Before Trial Begins 31.8
      • 2. Reiteration Requirement 31.9
      • 3. Examples of Evidentiary Issues Commonly Handled in Limine
        • a. Foundational Issues 31.10
        • b. Improper Chain of Custody 31.11
        • c. New or Novel Scientific Techniques (Kelly Test)
          • (1) Three-Prong Kelly Test 31.12
          • (2) Kelly Applies Only to New or Novel Procedure 31.13
          • (3) Kelly Test Results 31.14
        • d. Improper Use of Statistics 31.15
        • e. Expert Testimony
          • (1) Grounds for Challenging Expert Testimony 31.16
          • (2) Kelly Rule Does Not Usually Apply to Expert Testimony 31.17
        • f. Admissions and Confessions
          • (1) Trial Motions to Exclude Admissions and Confessions 31.18
          • (2) Corpus Delicti Rule as Basis for Exclusion of Evidence Eliminated 31.19
        • g. Prior Testimony
          • (1) When Prior Sworn Testimony May Be Admitted 31.20
          • (2) Procedure for Introducing Prior Testimony 31.21
        • h. Prior Convictions 31.22
    • B. Stipulations to Admission of Evidence 31.23
    • C. Objecting to Evidence When It Is Introduced; Objections Must Be Specific and Timely 31.24
    • D. Introducing and Opposing Introduction of Exhibits and Demonstrative Evidence
      • 1. Marking Exhibits for Identification 31.25
      • 2. Exhibit May Be Used Solely for Illustration or Admitted Into Evidence 31.26
      • 3. Juror Access to Exhibits 31.27
      • 4. Common Exhibits 31.28
      • 5. Demonstrative Evidence
        • a. Preserving Objection 31.29
        • b. Photographs 31.30
        • c. Demonstrations and Experiments 31.31
        • d. Similar but Not Identical Evidence 31.32
  • VI. OTHER TRIAL MOTIONS
    • A. Requiring Election by Prosecution 31.33
    • B. Sanctions for Failing to Comply With Discovery 31.34
    • C. Jury Issues: Oral and Written Motions
      • 1. Juror's Question for Witness 31.35
      • 2. Communication Between Judge and Jurors 31.36
      • 3. Discharge of Juror
        • a. Grounds for Discharging Juror and Seating Alternate 31.37
        • b. Hearing on Whether to Discharge Juror 31.38
        • c. Selecting Alternate 31.39
        • d. Declaring Mistrial When There Are No Alternates 31.40
    • D. Control in Courtroom and Courthouse
      • 1. Judge Has Duty to Preserve Order 31.41
      • 2. Restraining Defendant or Defense Witnesses; Removing Defendant From Courtroom 31.42
      • 3. Security Measures Other Than Restraint of Defendant 31.43
    • E. Orders Concerning In-Custody Defendant's Appearance and Needs 31.44
    • F. Judgment of Acquittal Under Pen C §§1118, 1118.1
      • 1. Nature of Motion 31.45
      • 2. Effect of Judge's Order 31.46
  • VII. APPELLATE REVIEW OF TRIAL MOTIONS 31.47

32

Jury Instructions

Michael C. McMahon

  • I. OVERVIEW 32.1
  • II. CHART: DEADLINES 32.2
  • III. TYPES OF INSTRUCTIONS
    • A. Sua Sponte Instructions
      • 1. Trial Court Must Instruct on General Principles of Law Relevant to Case 32.3
      • 2. Trial Court Must Instruct on Presumption of Innocence and Reasonable Doubt 32.3A
      • 3. Limits on Trial Court's Duty to Instruct Sua Sponte 32.4
      • 4. Examples of Other Instructions Required in Every Case 32.5
      • 5. Examples of Instructions Required When Appropriate 32.6
      • 6. Sua Sponte Instructions on Lesser Included Offenses
        • a. Court's Sua Sponte Duty to Instruct on Lessers 32.7
        • b. Determining Whether Offense Is Lesser Included Offense 32.8
        • c. Waiving Statute of Limitations as Defense to Lesser 32.9
        • d. Instruction on Lesser Must Be Given Over Defense Objection 32.10
      • 7. Sua Sponte Instructions on Defenses
        • a. Court's Sua Sponte Duty to Instruct on Defenses 32.11
        • b. Defenses 32.12
        • c. Distinguishing Between Lessers and Defenses 32.13
    • B. Instructions That Must Be Requested
      • 1. General Requirements for Requested Instructions 32.14
      • 2. Instruction on Bias or Sympathy 32.15
      • 3. Instructions Commonly Requested by Defense
        • a. Pinpoint Instructions 32.16
        • b. Clarifying or Amplifying Instructions 32.17
        • c. Cautionary Instructions 32.18
        • d. Limiting Instructions 32.19
      • 4. Instructions Commonly Requested by Prosecution 32.20
    • C. CALCRIM Instructions
      • 1. Description and Recommendation for Use 32.21
      • 2. Modification May Be Required for CALCRIM Instruction to Fit Facts of Case 32.22
      • 3. Checklist: Commonly Requested CALCRIM Instructions 32.23
  • IV. PREPARING AND SUBMITTING INSTRUCTIONS
    • A. Drafting Technique in General 32.24
    • B. Drafting Instructions on Elements of the Crime 32.25
    • C. Time to Prepare and Submit Instructions 32.26
    • D. Form of Proposed Instructions 32.27
    • E. Hearing on Instructions 32.28
  • V. OBJECTIONS TO INSTRUCTIONS
    • A. Grounds for Objecting
      • 1. General Grounds 32.29
      • 2. Instruction Is Unsupported by Evidence 32.30
      • 3. Instruction Incorrectly States Law 32.31
      • 4. Instruction Lightens Prosecution's Burden of Proof 32.32
      • 5. Instruction Mischaracterizes Defense Burden 32.33
    • B. Preserving Instructional Issues for Appeal 32.34
  • VI. INSTRUCTING THE JURY
    • A. When Instructions Are Given 32.35
    • B. Maximizing Impact of Instructions 32.36
    • C. Jury's Request for Supplemental Instructions 32.37
    • D. Instruction When Alternate Juror Substituted 32.38

33

Jury Deliberations and Verdict

James P. Lambe

  • I. OVERVIEW 33.1
  • II. CHART: DEADLINES 33.2
  • III. JUDGE'S DIRECTIONS TO JURORS ON HOW TO CONDUCT THEIR DELIBERATIONS 33.3
  • IV. JUDGE'S DIRECTIONS TO BAILIFF 33.4
  • V. TIME AND PLACE OF DELIBERATIONS; ADMONISHING JURORS NOT TO DISCUSS CASE 33.5
  • VI. ALTERNATES EXCLUDED; DELIBERATIONS BEGIN ANEW IF ALTERNATE SEATED 33.6
  • VII. CHOOSING FOREPERSON 33.7
  • VIII. MATERIALS ALLOWED IN JURY ROOM
    • A. In General 33.8
    • B. Papers, Notes, Exhibits, and Pleadings 33.9
    • C. Clothing, Photographs, Tape Recordings, Records, and Books 33.10
    • D. Transcripts of Court Proceedings and Instructions 33.11
    • E. Experiments 33.12
  • IX. QUESTIONS AND REQUESTS DURING DELIBERATIONS
    • A. Procedure for Answering Jurors' Questions and Requests 33.13
    • B. Objecting to Improper Communication Between Judge or Bailiff and Jury 33.14
    • C. Jury's Request for Reread 33.15
    • D. Jury's Request for Clarification of Law 33.16
    • E. Jury's Request to View Scene or Object Outside Courtroom 33.17
    • F. Jury's Consideration of Greater, Lesser, and Alternate Offenses 33.18
  • X. REQUEST BY COUNSEL TO REOPEN EVIDENCE OR ARGUMENT 33.19
  • XI. PROCEDURE FOR DETERMINING WHETHER TO EXCUSE JUROR DURING DELIBERATIONS
    • A. Juror Misconduct
      • 1. Checklist: Common Types of Juror Misconduct 33.20
      • 2. Remedies for Juror Misconduct 33.21
    • B. Other Reasons for Excusing Jurors 33.22
    • C. When Hearing Is Required to Determine Whether to Excuse Juror 33.23
    • D. Conduct of Hearing to Determine Whether to Excuse Juror; Court's Ruling 33.24
  • XII. TERMINATION OF DELIBERATIONS
    • A. Reasons for Terminating Deliberations 33.25
    • B. Determining Whether Jurors Are Unable to Reach Verdict; Declaring Mistrial 33.26
  • XIII. GENERAL AND SPECIAL VERDICTS
    • A. Definition of Verdict 33.27
    • B. Written Verdict Forms 33.28
    • C. General Verdict 33.29
    • D. Special Verdict 33.30
    • E. Jury's Verdict on Special Allegations and Prior Convictions 33.31
    • F. Partial Verdicts 33.32
  • XIV. DELIVERY OF VERDICT
    • A. Parties to Be Present in Court 33.33
    • B. Method of Taking Verdict
      • 1. Oral Declaration 33.34
      • 2. Delivery of Verdict 33.35
    • C. Trial Ends When Verdict Is Complete or Jury Is Discharged 33.36
    • D. Recording Verdict in Minutes 33.37
  • XV. DEFECTIVE VERDICTS
    • A. Inconsistent Verdicts 33.38
    • B. Right to Unanimous Jury 33.38A
    • C. Irregularity in Written Forms 33.39
    • D. Finding on Degree of Offense; Failure to Find Degree; Reconsideration of Verdict 33.40
    • E. Failure to Make Finding on Enhancement 33.41
  • XVI. ACTION ON VERDICT
    • A. Recording Verdict 33.42
    • B. Finding for Defendant 33.43
    • C. Finding Against Defendant 33.44
  • XVII. EFFECT OF MISTRIAL DECLARED DURING DELIBERATIONS 33.45
  • XVIII. POSTTRIAL INTERROGATION OF JURORS 33.46

34

Prejudgment Motions

Timothy E. Warriner

  • I. OVERVIEW 34.1
  • II. CHART: DEADLINES 34.2
  • III. MOTION FOR NEW TRIAL
    • A. Purpose; When Available 34.3
    • B. Grounds
      • 1. Absence of Defendant at Trial 34.4
      • 2. Jury Misconduct 34.5
      • 3. Error of Law by Court 34.6
      • 4. Prosecutorial Misconduct; Errors by Other Prosecution Agencies 34.7
      • 5. Insufficiency of Evidence 34.8
      • 6. Newly Discovered Evidence 34.9
      • 7. Loss of Trial Transcript 34.10
      • 8. Nonstatutory Grounds 34.11
    • C. Procedure
      • 1. Application by Defendant; Appointment of Counsel; Time for Application 34.12
      • 2. Form and Content of Application; Right to Transcript to Support Motion 34.13
    • D. Court's Ruling
      • 1. Proper Judge to Hear Motion; Discretionary Ruling 34.14
      • 2. Time to Rule 34.15
    • E. Appellate Review 34.16
  • IV. MOTION TO MODIFY VERDICT TO LESSER OFFENSE OR LESSER DEGREE 34.17
  • V. MOTION TO STRIKE ENHANCEMENTS OR SPECIAL FINDINGS 34.18
  • VI. MOTION IN ARREST OF JUDGMENT 34.19
  • VII. JUDGMENT NOTWITHSTANDING THE VERDICT (JNOV) 34.20

35

Pronouncing Judgment

Hon. Gregg L. Prickett

  • I. OVERVIEW 35.1
  • II. CHART: DEADLINES 35.2
  • III. TIME TO PRONOUNCE JUDGMENT
    • A. General Rule 35.3
    • B. Exceptions
      • 1. Time Waiver 35.4
      • 2. Mentally Incompetent Defendant 35.5
      • 3. Military Veteran 35.5A
      • 4. Insane Defendant 35.6
      • 5. Defendant Convicted of Driving Under Influence 35.7
      • 6. Defendant Placed in Diagnostic Facility (Felony Cases) 35.8
    • C. Effect of Time Limit Violation 35.9
    • D. Recall of Sentence; Correction of Judgment 35.10
    • E. Recall, Resentencing, and Redesignation: Proposition 47 35.10A
      • 1. Limitations on Eligibility 35.10B
      • 2. Petitions for Resentencing: Defendants Currently Serving Sentence 35.10C
      • 3. Applications for Redesignation to Misdemeanor: Defendants With Completed Sentences 35.10D
      • 4. Deadline for Recall 35.10E
      • 5. Offenses Falling Outside Ambit of Proposition 47 35.10F
      • 6. Remaining Collateral Consequences of Previous Felony Convictions Despite Redesignation to Misdemeanor 35.10G
  • IV. AUTHORITY OF SUCCESSOR JUDGE; ARBUCKLE 35.11
  • V. DEFENDANT'S PRESENCE
    • A. Right to Be Present 35.12
    • B. When Judgment Can Be Rendered in Defendant's Absence 35.13
    • C. Requiring Defendant's Presence 35.14
  • VI. DEFENDANT'S RIGHTS
    • A. Bail 35.15
    • B. Right to Counsel at Sentencing 35.16
  • VII. HEARING ON PRONOUNCEMENT OF JUDGMENT
    • A. Meaningful Opportunity to Object 35.17
    • B. Nature of Sentencing Hearing; Matters That Court May Consider at Hearing 35.18
    • C. Defendant's Right to Confrontation 35.19
    • D. Sentencing Entrapment/Sentencing Manipulation 35.19A
    • E. Continuance of Hearing 35.20
    • F. Arraignment for Judgment 35.21
  • VIII. ALLOCUTION
    • A. Allocution Defined 35.22
    • B. Causes Against Judgment 35.23
  • IX. RENDITION AND ENTRY OF JUDGMENT 35.24
  • X. NOTICES TO DEFENDANT
    • A. Duty to Register 35.25
    • B. Duty to Submit to AIDS Testing 35.26
    • C. Right to Appeal 35.27
    • D. Period of Parole or Postrelease Supervision 35.28
  • XI. ALTERNATIVES IN CONTROLLED SUBSTANCE CASES
    • A. Commitment to California Rehabilitation Center (CRC) 35.29
    • B. Proposition 36 Treatment 35.29A
    • C. Deferred Entry of Judgment 35.29B
  • XII. CORRECTING ERRORS IN PRONOUNCING JUDGMENT
    • A. Clerical and Judicial Error Distinguished 35.30
    • B. Clerical Error 35.31
    • C. Judicial Error 35.32
    • D. Correcting Oral Pronouncement of Sentence 35.33
    • E. Vacating or Correcting Void Sentence 35.34

36

Misdemeanor Sentencing

Hon. Teresa Sanchez-Gordon

  • I. OVERVIEW 36.1
  • II. CHART: DEADLINES 36.2
  • III. TIME OF SENTENCING; RIGHT TO COUNSEL 36.3
  • IV. REFERRAL TO PROBATION DEPARTMENT 36.3A
  • V. WHO CAN SENTENCE IN MISDEMEANOR CASES; COURT'S DISCRETION IN SENTENCING 36.4
  • VI. PUNISHMENT FOR MISDEMEANORS
    • A. Suspending Execution of Sentence; Suspending Imposition of Sentence 36.5
    • B. Judgment of Imprisonment, Fine, or Both 36.6
    • C. Imprisonment
      • 1. Maximum Term; Good Time and Work Time 36.7
      • 2. Custody and Custody Credits On Reclassification Under Proposition 47 (Pen C § 1170.18) 36.7A
      • 3. Serving Jail Term on Weekends 36.8
    • D. Judgment of Fine 36.9
    • E. Judgment of Imprisonment to Satisfy Fine
      • 1. General Rule 36.10
      • 2. Application to Indigent 36.11
      • 3. Application to Person Under 21 36.12
    • F. Civil Assessments 36.12A
  • VII. INFRACTIONS 36.13
  • VIII. VEHICLE CODE VIOLATIONS
    • A. Infraction Violations of Vehicle Code 36.14
    • B. Misdemeanor Violations of Vehicle Code 36.15
    • C. Imprisonment to Satisfy Vehicle Code Fine 36.16
    • D. Traffic School 36.17
  • IX. CONCURRENT AND CONSECUTIVE SENTENCES
    • A. Judgment Should Specify Whether Terms Are Concurrent or Consecutive 36.18
    • B. Determining Sentences to Be Consecutive
      • 1. Factors to Consider 36.19
      • 2. Receipt of Evidence 36.20
    • C. Time Limit on Correction 36.21

37

Felony Sentencing

Hon. Matthew C. Braner

  • I. OVERVIEW
    • A. Chapter Highlights 37.1
    • B. Realignment 37.1A
  • II. IMPORTANT FELONY SENTENCING ISSUES 37.2
  • III. CHART: DEADLINES 37.3
  • IV. DETERMINATE SENTENCING VERSUS INDETERMINATE SENTENCING 37.4
  • V. TERMINOLOGY 37.5
  • VI. DETERMINATE SENTENCING
    • A. Structure of Typical DSL Sentence: Two Formulas 37.6
      • 1. Checklist: Sentencing Limitations [Deleted] 37.7
    • B. Formula One: Base Term Plus Conduct Enhancements Equals Principal Term
      • 1. Base Term
        • a. Selecting One of Three Authorized Terms 37.8
        • b. Upper Term 37.9
        • c. Middle Term 37.9A
        • d. Lower Term 37.10
      • 2. Conduct (Specific) Enhancements
        • a. Description 37.11
        • b. Statutory Limitations on Terms of Conduct Enhancements 37.12
        • c. Chart: Conduct Enhancements 37.13
      • 3. Principal Term 37.14
    • C. Formula Two: Principal Term Plus Subordinate Term(s) Plus Prior(s) Plus Pen C §12022.1 Equals Aggregate Term
      • 1. Rules Applicable to Consecutive Sentences
        • a. Description of Subordinate Term [Deleted] 37.15
        • b. Imposing Consecutive Terms 37.16
        • c. Calculating Aggregate Term When Consecutive Sentences Imposed 37.16A
        • d. Calculating Consecutive Terms 37.17
          • (1) One-Third of Middle Term for Crime Plus One-Third of Specific (Conduct) Enhancements 37.18
          • (2) Old Law: No Enhancements to Nonviolent Subordinate Terms [Deleted] 37.19
          • (3) Old Law: Multiple Residential Burglaries, Residential Robberies, Residential Arsons, and Robberies With Use of Deadly Weapon (Former Pen C §1170.95) [Deleted] 37.20
          • (4) Full-Term Consecutive Sentences
            • (a) Multiple Kidnappings (Pen C §1170.1(b)) 37.21
            • (b) Witness Threats (Pen C §1170.13) 37.22
            • (c) Witness Intimidation (Pen C §1170.15) 37.23
            • (d) Voluntary Manslaughter (Pen C §1170.16) 37.24
            • (e) Full-Term Consecutive Sentences for Forcible Sex Offenses
              • (i) Optional Full-Term Consecutive Sentences (Same Victim, Same Occasion) (Pen C §667.6(c)) 37.25
              • (ii) Mandatory Full-Term Consecutive Sentences (Separate Victims or Separate Occasions) (Pen C §667.6(d)) 37.26
            • (f) Special Rules for Conduct Enhancements in Pen C §667.6 Cases 37.27
            • (g) Special Rules for Crimes by State Prisoners and Escapees 37.28
          • (5) Old Law: Subordinate Term Limits [Deleted] 37.29
          • (6) Limitations on Consecutive Terms for Cases Before 2001 37.30
      • 2. Prior Convictions
        • a. Uses of Prior Convictions 37.30A
        • b. Pleading and Proving Prior Convictions and Prison Terms
          • (1) Charging Priors 37.31
          • (2) Trial of Priors 37.31A
          • (3) Proof of Priors 37.31B
          • (4) Proof That Prior Constitutes Serious or Violent Felony 37.31C
            • (a) California Offenses That May Require Additional Proof to Qualify as Serious Felony Priors or Strike Priors 37.31D
            • (b) Proving Out-of-State Priors 37.32
        • c. Three Strikes Law
          • (1) Introduction 37.33
          • (2) Determining Who Is Eligible for a Three Strikes Life Sentence 37.33A
          • (3) Determining Whether Prior Is a Strike 37.33B
          • (4) Proof of Prior Strikes 37.33C
          • (5) Consequences of One or More Strikes 37.33D
          • (6) Discretion to Strike: Romero and Williams 37.33E
          • (7) Eighth Amendment Considerations—"Cruel and Unusual" 37.33F
        • d. One Strike Sex Crime Law 37.34
        • e. Other Alternative Sentencing Schemes 37.34A
      • 3. Penal Code §12022.1: Felony Committed While on Bail or Own Recognizance 37.35
      • 4. Aggregate Term 37.36
    • D. Multiple DSL and Combined DSL/ISL Terms
      • 1. Multiple Cases That Result in Multiple DSL Terms (Including Misdemeanors) 37.37
      • 2. Combined Determinate (DSL) and Indeterminate (ISL) Terms 37.38
      • 3. Multiple ISL Terms and Enhancements 37.39
      • 4. Out-of-State and California DSL Terms 37.40
    • E. Striking Charges and Enhancements Under Pen C §1385 37.41
    • F. Striking Punishment for Certain Enhancements Under Former Pen C §1170.1(h) [Deleted] 37.42
    • G. Mandatory Sentencing Limitations
      • 1. Dual Use of Facts 37.43
      • 2. Penal Code §654: Limit on Acts or Omissions Made Punishable by Different Provisions 37.44
        • a. General Legal Exceptions
          • (1) Acts of Violence With Separate Victims 37.45
          • (2) Multiple Sex Acts 37.46
          • (3) Certain Vehicle Code Violations 37.47
        • b. Factual Distinctions 37.48
        • c. Applicability to Enhancements 37.49
        • d. Sentencing Procedures When Pen C §654 Applies 37.50
    • H. Sentencing Hearing, Sentencing Choices, and Statement of Reasons 37.51
    • I. Chart: Persons Ineligible for Probation 37.52
    • J. Restricted Probation Eligibility 37.53
  • VII. CREDIT FOR TIME SERVED
    • A. In General 37.54
    • B. Credit for Time Spent in Presentence Custody
      • 1. Actual Time
        • a. When Available 37.55
        • b. Johnson Waivers 37.56
        • c. Multiple Reasons for Presentence Custody 37.57
      • 2. Credit for Good Conduct
        • a. Availability of Conduct Credits 37.58
        • b. Limitation on Credits for Violent Felonies 37.58A
        • c. Calculating Days of Conduct Credit 37.59
      • 3. Applying Credits to Confinement Time and Fine 37.60
    • C. Credit for Conduct in State Prison 37.61
  • VIII. JUVENILES PROSECUTED AS ADULTS [DELETED] 37.62
  • IX. CIVIL COMMITMENT OF NARCOTICS ADDICTS 37.63
  • X. COMMITMENT AND TRANSFERS TO DIVISION OF JUVENILE JUSTICE (DJJ)
    • A. Defendants Eligible for DJJ Commitment 37.64
    • B. When Defendant May or Must Be Referred to DJJ Diagnostic and Treatment Center Before Sentencing 37.65
    • C. Stage of Proceedings When Actual Commitment to DJJ Occurs 37.66
    • D. Proceedings if Defendant Rejected 37.67
    • E. Duration if Defendant Accepted 37.68
    • F. Housing Youthful State Prison Inmate at DJJ Facility; DJJ's Power to Transfer Such Inmates to Other Institutions 37.69
    • G. Extension of DJJ Commitment 37.70
    • H. State Prison Commitment Instead of Discharge 37.71
  • XI. PREGNANT AND PARENTING WOMEN'S ALTERNATIVE SENTENCING 37.72

38

Probation and Mandatory Supervision

Christine Bergman

  • I. OVERVIEW 38.1
  • II. CHART: DEADLINES 38.2
  • III. ELIGIBILITY FOR PROBATION
    • A. General Rules 38.3
    • B. Criminal Justice Realignment Act of 2011: Split Sentences and Mandatory Supervision 38.3A
    • C. Rules Applicable to Nonviolent Drug Possession Offenses (Proposition 36)
      • 1. Basic Provisions 38.4
      • 2. Statutory Exclusions 38.5
      • 3. Other Exclusions 38.6
      • 4. Sentencing Under Proposition 36 38.7
      • 5. Violations of Proposition 36 Probation 38.8
      • 6. Successful Completion of Treatment 38.9
  • IV. PROBATION INVESTIGATION AND REPORT
    • A. Preplea Probation Reports 38.10
    • B. Court's Discretion to Refer Cases to Probation After Plea or Trial
      • 1. Misdemeanor Cases 38.11
      • 2. Felony Cases 38.12
    • C. When Supplemental Probation Report Is Required 38.13
    • D. Purpose of Probation Report; Court's Discretion to Reject Report's Recommendation 38.14
    • E. Contents of Probation Report
      • 1. In General; Hearsay; Suppressed Evidence 38.15
      • 2. Prior Criminality 38.16
      • 3. Risk Assessment for Sex Offenders 38.17
      • 4. Facts Pertaining to Charges in Current Case 38.18
  • V. RESTITUTION
    • A. Available to Victim 38.19
    • B. Fine Paid by Defendant to State Restitution Fund 38.20
    • C. Recovering From State Restitution Fund Through Victim Compensation Program 38.21
  • VI. REIMBURSEMENT FOR PROBATION COSTS 38.22
  • VII. ATTORNEY PREPARATION FOR SENTENCING
    • A. Waiving Presentence Investigation and Report 38.23
    • B. Defense Attorney Preparation
      • 1. In General; Pen C §1203.03 Evaluation; Statement in Mitigation 38.24
      • 2. Checklist: Preparing Defendant for Probation Interview 38.25
    • C. Prosecution Preparation; Statement in Aggravation 38.26
  • VIII. COURT PROCEDURES IN DECIDING WHETHER TO GRANT PROBATION
    • A. Considerations in Granting Probation 38.27
    • B. Sentencing Hearing 38.28
    • C. Form of Probationary Order; Papers Given Defendant 38.29
  • IX. RIGHT TO REJECT PROBATION 38.30
  • X. MODIFICATION OR EARLY TERMINATION OF PROBATION
    • A. Grounds for Modification 38.31
    • B. Modification Procedures 38.32
    • C. Early Termination of Probation 38.33
  • XI. CONDITIONS OF PROBATION
    • A. General Rule for Determining Validity of Probation Conditions 38.34
    • B. Sex Offender Registration Requirements 38.35
    • C. Mandatory Probation Conditions 38.36
    • D. Discretionary Probation Conditions 38.37
    • E. Invalid Probation Conditions 38.38
  • XII. APPELLATE CHALLENGE TO CONDITIONS OF PROBATION 38.39
  • XIII. TRANSFERS
    • A. Transfer of Supervision to Another County 38.40
    • B. Transfer of Case to Another State 38.41
  • XIV. DURATION OF PROBATION
    • A. Standard Term 38.42
    • B. Revoking, Modifying, and Extending Probation 38.43
  • XV. TERMINATING PROBATION AND IMPOSING PRISON SENTENCE 38.44
  • XVI. PROFESSIONAL RESPONSIBILITY OF COURT, COUNSEL, AND PROBATION OFFICER 38.45

39

Work Furlough and Other Alternative Sentences

Hon. Richard Keller

  • I. OVERVIEW 39.1
  • II. WORK FURLOUGH, JOB TRAINING, AND SCHOOL FURLOUGH
    • A. Description and Eligibility 39.2
    • B. Availability 39.3
    • C. Monitoring 39.4
    • D. Transfers to Other Counties 39.5
    • E. Fees 39.6
    • F. Passes 39.7
    • G. Credits 39.8
    • H. Escapes 39.9
  • III. COUNTY PAROLE
    • A. Composition of Parole Board 39.10
    • B. Meetings 39.11
    • C. Rules and Regulations 39.12
    • D. Eligibility 39.13
    • E. Emergency or Limited Paroles 39.14
    • F. Authority to Grant Parole 39.15
    • G. Right to Counsel 39.16
    • H. Notification of Application 39.17
    • I. Appearance 39.18
    • J. Admission of Guilt 39.19
    • K. Length of Parole 39.20
    • L. Conditions 39.21
    • M. Parole Denied 39.22
    • N. Violation 39.23
    • O. Noncitizen Prisoners 39.24
    • P. Supervision 39.25
    • Q. Fees for County Parole 39.26
  • IV. ALTERNATIVE WORK PROGRAMS
    • A. Work Release Programs
      • 1. Description 39.27
      • 2. Time Limits 39.28
      • 3. Fees 39.29
      • 4. Failures 39.30
    • B. Accelerated Release 39.31
    • C. Home Detention 39.32
  • V. CHART: ALTERNATIVE SENTENCING BY COUNTY 39.33

40

Victim Restitution

Antonio R. Sarabia II

  • I. OVERVIEW 40.1
  • II. VICTIM'S RIGHT TO RESTITUTION
    • A. Victim Defined 40.2
    • B. How the Sentencing Determination Affects Victim Restitution 40.3
    • C. Victim Restitution May Be Based on Dismissed Counts 40.4
    • D. Restitution and Plea Agreements 40.4A
    • E. When Amount of Victim Restitution May Be Determined 40.5
    • F. Types of Losses for Which Restitution May Be Ordered 40.6
    • G. Relation Between Victim Restitution and Fines, Penalties, and Assessments 40.7
    • H. Prosecutor's Role 40.7A
  • III. RESTITUTION HEARING
    • A. Notice to Defendant and to Victim 40.8
    • B. Restitution and Insurance 40.9
    • C. Victims' Rights 40.10
    • D. Victim Entitled to Full Restitution 40.11
    • E. Defendant's Obligation to Pay Restitution in Cases of Multiple Defendants 40.12
    • F. Special Restitution Rules Pertaining to Minors and to Domestic Violence Cases 40.13
    • G. Restitution Hearing 40.14
  • IV. RESTITUTION AND PROBATION
    • A. Probation Department's Responsibilities 40.15
    • B. Restitution as a Condition of Probation 40.16
    • C. Payments During Probation 40.17
    • D. Modification of Restitution 40.18
    • E. Special Probation Conditions 40.19
    • F. Limits on Time of Probation 40.20
    • G. Termination of Probation 40.21
  • V. COLLECTION OF RESTITUTION
    • A. Payment of Restitution Has Priority 40.21A
    • B. Preserving Defendant's Assets 40.22
    • C. Requirement That Defendant Disclose Assets 40.23
    • D. Procedures for Enforcing Restitution Order
      • 1. Use of Income Deduction 40.24
      • 2. Availability of Civil Enforcement Procedures 40.25
      • 3. Other Procedures 40.26
    • E. State Agencies That May Provide Restitution 40.27
    • F. Relation Between Restitution and Civil Liability 40.28
    • G. Restitution Not Subject to Civil Suit and Not Dischargeable in Bankruptcy 40.29
  • VI. SATISFACTION OF RESTITUTION 40.30
  • VII. APPEAL 40.31
  • VIII. RESTITUTION AND EXPUNGEMENT 40.32
  • IX. PROFESSIONAL ETHICS 40.33

41

Trial Counsel's Duties After Judgment; Cleansing and Sealing of Criminal Records

Garrick A. Byers

  • I. OVERVIEW 41.1
  • II. CHART: DEADLINES 41.2
  • III. TRIAL COURT JURISDICTION WHILE CASE IS ON APPEAL 41.3
  • IV. DUTIES OF TRIAL COUNSEL CONCERNING APPELLATE REVIEW
    • A. Prosecution-Initiated Appellate Review 41.4
    • B. Defense Counsel's Obligations to Help Client Appeal 41.5
    • C. Stay and Release Pending Appeal
      • 1. Bail and Own Recognizance 41.6
      • 2. Stay Pending Appeal 41.7
  • V. COMPENSATION OF APPOINTED COUNSEL
    • A. Statutory Authority for County Payment to Appointed Counsel 41.8
    • B. Reimbursement by Defendants 41.9
  • VI. RELIEF FROM THE CONSEQUENCES OF ARREST AND CONVICTION RECORDS
    • A. Overview 41.10
    • B. Sealing of Records
      • 1. Finding of Factual Innocence 41.11
      • 2. Juvenile Misdemeanor Arrest and Citation Records 41.11A
      • 3. Marijuana Arrests and Convictions 41.12
      • 4. Juvenile Court Records [Deleted] 41.13
      • 5. Misdemeanor Convictions of Minors in Adult Court 41.13A
      • 6. Sealing or Expungement of Records After Successful Completion of Pen C §1000, §1000.5, or §§1000.8—1000.10 Program 41.13B
    • C. Reduction of Felony to Misdemeanor 41.14
    • D. Dismissal of Charges
      • 1. Dismissal of Felony or Misdemeanor Charges After Probation (Pen C §1203.4) or After Completion of County Jail Felony Sentence (Pen C §1203.41) 41.15
      • 2. Dismissal of Infractions, and of Misdemeanor Charges When Probation Not Granted (Pen C §1203.4a) 41.16
      • 3. Dismissal After Completion of Treatment for Nonviolent Drug Possession Offense (Proposition 36) 41.17
      • 4. Reduction of Offenses Under Propositions 36, 47, and 64 41.17A
    • E. Commitments to Division of Juvenile Justice; Completion of Juvenile Parole 41.18
    • F. Discharge of Narcotic Addicts 41.19
    • G. Exclusion From Megan's Law Website; Relief From Registration for Pen C §290 Registrants 41.19A
    • H. Certificate of Rehabilitation; Pardon
      • 1. Description and Procedures 41.20
      • 2. Chart: Availability of Pardons and Certificates of Rehabilitation 41.21
    • I. Expungement of DNA Profiles and Samples 41.22
  • VII. RETENTION POLICIES FOR RECORDS OF THE COURT AND DEPARTMENT OF JUSTICE 41.23
  • VIII. CHARTS: EFFECT OF RELIEF FROM DISABILITIES 41.24
  • IX. PETITION FOR WRIT OF ERROR CORAM NOBIS; MOTION TO VACATE JUDGMENT 41.25

42

Writs in California State Courts

Allen R. Crown

Jonathan Grossman

  • I. OVERVIEW 42.1
  • II. CHART: DEADLINES 42.2
  • III. WRITS OF MANDATE AND PROHIBITION
    • A. Comparison and Mechanics of Mandate and Prohibition; Statutes Providing for Writ Review 42.3
    • B. Form of Petition 42.4
    • C. Filing and Service Requirements 42.5
    • D. Filing Fee Not Required 42.6
    • E. Outline of the Petition 42.7
      • 1. Identify the Parties and Beneficial Interest to Petitioner 42.8
      • 2. Request for a Stay of Proceedings in Trial Court 42.9
      • 3. Trial Court Has Acted Without or in Excess of Jurisdiction or Failed to Act as Prescribed by Law 42.10
      • 4. Objection Made in Trial Court 42.11
      • 5. No Plain, Speedy, and Adequate Remedy at Law 42.12
      • 6. Timely Filing of Writ Petition 42.13
      • 7. Why the Petition Was Not Filed in the Lower Court 42.14
      • 8. Claims for Relief 42.15
      • 9. Prayer for Relief 42.16
      • 10. Verification 42.17
      • 11. Supporting Memorandum 42.18
      • 12. Sufficient Record Must Accompany Writ Petition 42.19
    • F. Procedure After Writ Petition Is Filed
      • 1. Superior Court 42.20
      • 2. Appellate Division of Superior Court, Courts of Appeal, and Supreme Court 42.21
      • 3. Effect of Fugitive Defendant 42.22
    • G. Response to Writ Petition
      • 1. Right to Respond to Writ Petition 42.23
      • 2. Types of Response 42.24
      • 3. Procedures for Responding 42.25
    • H. Replication or Reply 42.26
    • I. Oral Argument 42.27
    • J. Procedures When Peremptory Writ May Issue in First Instance 42.28
    • K. Rehearings 42.29
    • L. Appellate Remedies Following Grant or Denial of Writ of Mandate or Prohibition 42.30
    • M. Res Judicata Effect of Denial of Petition for Writ of Mandate or Prohibition 42.31
  • IV. WRIT OF HABEAS CORPUS
    • A. Nature and Function of Writ of Habeas Corpus
      • 1. Purpose of Habeas; Statutory Authorities 42.32
      • 2. Form and Contents of Petition 42.33
      • 3. Filing and Service Requirements 42.34
      • 4. Three Pleadings 42.35
    • B. Outline of Petition for Writ of Habeas Corpus 42.36
      • 1. Identity of the Petitioner and Location of Custody 42.37
      • 2. Court Order Leading to Petitioner's Restraint 42.38
      • 3. Illegal Restraint 42.39
      • 4. Proper Court 42.40
      • 5. No Plain Speedy and Adequate Remedy at Law 42.41
      • 6. Successive Petitions 42.42
      • 7. Timeliness 42.43
      • 8. Exhaustion of Administrative Remedies 42.44
      • 9. Claims for Relief 42.45
      • 10. Prayer for Relief 42.46
      • 11. Verification 42.47
      • 12. Supporting Memorandum and Exhibits 42.48
    • C. Court Responses 42.49
    • D. Preparation, Filing, and Service of Return 42.50
    • E. Preparation, Filing, and Service of Traverse 42.51
    • F. Petitioner's Custody Status 42.52
    • G. Discovery 42.53
    • H. Evidentiary Hearing 42.54
    • I. Relief Granted 42.55
    • J. Appellate Remedies Following Grant or Denial of Habeas Corpus Relief 42.56
    • K. When Habeas Is Filed in Conjunction With Appeal 42.57

43

Misdemeanor Appeals

Brentford J. Ferreira

Douglas W. Otto

  • I. OVERVIEW 43.1
  • II. CHART: DEADLINES 43.2
  • III. APPEALABLE JUDGMENTS AND ORDERS
    • A. In General 43.3
    • B. Appeals by Prosecution 43.4
    • C. Appeals by Defense
      • 1. Appeal From Judgment; Certificate of Probable Cause Not Required 43.5
      • 2. Appeal From Order After Judgment Affecting Defendant's Substantial Rights 43.6
      • 3. Order Denying Pen C §1538.5 Motion 43.7
  • IV. INITIATING THE APPEAL
    • A. Filing Notice of Appeal 43.8
    • B. Appointment of Counsel on Appeal for Indigent Defendants 43.9
  • V. BAIL OR RELEASE PENDING APPEAL 43.10
  • VI. GENERAL RULES FOR TIME LIMITS AND EXTENSIONS OF TIME 43.11
  • VII. RECORD ON APPEAL
    • A. Normal Record 43.12
    • B. Record of Oral Proceedings 43.13
    • C. Proposed Statement on Appeal 43.14
    • D. Preparing a Limited Normal Record in Certain Appeals 43.15
      • 1. Appeal From a Pen C §1538.5 Ruling 43.16
      • 2. Appeal From the Granting of Demurrer or Other Appealable Order 43.17
      • 3. Appeal From Conditions of Probation 43.17A
    • E. Respondent's Amendments (Corrections and Additions) 43.18
    • F. Corrected and Certified Statement on Appeal 43.19
    • G. Transmittal of Record on Appeal to Appellate Division 43.20
    • H. Failure to Procure the Record 43.20A
  • VIII. TRIAL COURT JURISDICTION DURING APPEAL
    • A. Trial Court Loses Jurisdiction to Change Judgment 43.21
    • B. Powers Retained by Trial Court 43.22
  • IX. ABANDONING APPEAL 43.23
  • X. APPELLATE BRIEFS
    • A. Rules That Apply to Appellant and Respondent
      • 1. Filing Dates 43.24
      • 2. Contents, Form, Filing, and Service of Briefs 43.25
      • 3. Untimely Briefs; Failure to File 43.26
      • 4. Service 43.27
    • B. Appellant's Opening Brief 43.28
    • C. Respondent's Brief 43.29
    • D. Appellant's Reply Brief 43.30
  • XI. ORAL ARGUMENT 43.31
  • XII. DETERMINATION OF APPEAL 43.32
  • XIII. FINALITY OF JUDGMENT 43.33
  • XIV. PETITION FOR REHEARING 43.34
  • XV. CERTIFICATION AND TRANSFER FOR HEARING 43.35
  • XVI. PUBLICATION OF OPINIONS 43.36
  • XVII. FURTHER REVIEW OF JUDGMENT 43.37
  • XVIII. REMITTITUR
    • A. When Remittitur Issues 43.38
    • B. Effect of Affirming Judgment 43.39
    • C. Effect of Reversing Judgment; New Trial 43.40

44

Felony Appeals

Jonathan Grossman

  • I. OVERVIEW 44.1
  • II. CHART: DEADLINES 44.2
  • III. DEFENDANTS' APPEALS
    • A. Right to Counsel; No Right to Self-Representation 44.3
    • B. Alternatives to Appeal; Steps to Take in Conjunction With Appeal 44.4
    • C. Procedural Prerequisites to Appeal
      • 1. Notice of Appeal
        • a. Generally 44.5
        • b. After Guilty or Nolo Contendere Plea 44.6
        • c. Consequences of Untimely Filing 44.7
      • 2. Certificate of Probable Cause
        • a. When Required; Exceptions 44.8
        • b. Effect on Appealable Issues 44.9
        • c. Effect on Waiver of Right to Appeal 44.9A
        • d. Where to Obtain 44.10
        • e. When to File 44.11
        • f. Review 44.12
      • 3. Chart: Appealability After Guilty Plea 44.13
    • D. Communicating With Client
      • 1. First Contact 44.14
      • 2. While Appeal Is Pending 44.15
      • 3. At Conclusion of Case 44.16
    • E. Communicating With Trial Counsel 44.17
    • F. Bail on Appeal 44.18
    • G. Motions on Appeal 44.18A
    • H. Record on Appeal
      • 1. Appeal Is Based on Record 44.19
      • 2. What Record Should Include 44.20
      • 3. Preparation, Certification, and Transmittal of Record 44.20A
      • 4. Determining Whether Record Is Complete; Informal Notice of Incomplete Record 44.21
      • 5. Augmentation of Record
        • a. What May Be Added Through Augmentation 44.22
        • b. Procedure for Augmenting Record 44.23
        • c. Application to Superior Court for Additional Record 44.23A
      • 6. Correction of Record 44.24
      • 7. Missing Record and Settled Statements 44.25
      • 8. Viewing and Transmitting Exhibits 44.26
      • 9. Request for Judicial Notice; Motion to Take Additional Evidence 44.26A
      • 10. Use of Writ of Habeas Corpus When Record on Appeal Is Inadequate 44.27
    • I. Mechanics of Briefing
      • 1. Reading and Digesting Transcripts
        • a. Procedure 44.28
        • b. Issue Spotting 44.29
        • c. Determining Whether Issue Has Been Preserved for Appeal 44.30
      • 2. Appellant's Opening Brief
        • a. Deadlines; Application for Extension of Time 44.31
        • b. Format of Opening Brief
          • (1) Components 44.32
          • (2) Statement of Case 44.33
          • (3) Statement of Facts 44.34
        • c. Effective Organization of Argument 44.35
        • d. Standards of Review 44.36
        • e. Demonstrating Prejudice 44.37
        • f. Type of Brief Filed When No Arguable Issue (Wende Brief)
          • (1) Description of Wende Brief 44.38
          • (2) Wende Does Not Apply to Appeals Handled by Retained Counsel or to Appeals From MDOA Commitments 44.39
        • g. Failure to File Brief 44.40
      • 3. Respondent's Brief 44.41
      • 4. Appellant's Reply Brief 44.42
      • 5. Additional Briefs 44.43
      • 6. Length, Filing, and Service of Briefs; Cover Colors 44.44
      • 7. Defective Briefs 44.45
    • J. Oral Argument 44.46
    • K. Result
      • 1. What Happens Next 44.47
      • 2. Opinion on Merits
        • a. Published and Unpublished Opinions 44.48
        • b. Affirmance 44.49
        • c. Reversal or Modification of Judgment 44.50
      • 3. Effect of Decision on Merits
        • a. Retrial; Double Jeopardy 44.51
        • b. Greater Punishment 44.52
        • c. Unauthorized Sentences 44.53
        • d. Further Proceedings on Remand 44.54
      • 4. Disposition Not on Merits
        • a. Voluntary Dismissal 44.55
        • b. Dismissal of Appeal for Irregularity 44.56
        • c. Mooted Appeal 44.57
        • d. Dismissal Because Appellant Escaped or Left Country 44.58
        • e. No Dismissal Because Defendant Incompetent on Appeal 44.59
        • f. Abatement of Appeal After Appellant's Death 44.60
    • L. Request for Publication or Depublication 44.61
    • M. Petition for Rehearing
      • 1. Grounds for Rehearing 44.62
      • 2. Time Limits, Form and Content, and Service and Filing of Petition and Answer 44.63
      • 3. Grant of Rehearing 44.64
      • 4. Denial of Rehearing; Modification of Opinion 44.65
    • N. Finality of Decisions
      • 1. When Decision Becomes Final 44.66
      • 2. Issuance of Remittitur 44.67
      • 3. Recall of Remittitur 44.68
    • O. Review in California Supreme Court
      • 1. Review Is Discretionary 44.69
      • 2. Grounds for Review 44.70
      • 3. Time Limits, Form, and Content of Petition 44.71
      • 4. Abbreviated Petition to Exhaust State Remedies 44.71A
      • 5. Time Limits, Form, and Content of Answer and Reply 44.72
      • 6. Filing and Service of Petition, Answer, and Reply 44.72A
      • 7. Time for Granting or Denying Review 44.73
      • 8. Issues to Be Reviewed 44.74
      • 9. Briefs on Merits 44.75
      • 10. Proceedings After Briefing 44.76
  • IV. PROSECUTION APPEALS 44.77

45

Federal Habeas Corpus Review of State Court Convictions

Carolyn M. Wiggin

  • I. OVERVIEW 45.1
  • II. CHART: DEADLINES 45.2
  • III. ADMISSION AND APPOINTMENT OF COUNSEL
    • A. Federal District Courts 45.3
    • B. Ninth Circuit Court of Appeals 45.4
    • C. United States Supreme Court 45.5
  • IV. BAIL AND STAYS
    • A. Pending Decision 45.6
    • B. After Relief Is Denied 45.7
    • C. After Relief Is Granted 45.8
  • V. PROCEDURE FOR HABEAS CORPUS REVIEW OF STATE COURT CONVICTIONS IN FEDERAL DISTRICT COURT
    • A. Preliminary Investigation 45.9
    • B. Obtaining and Preparing Habeas Petition 45.10
    • C. Electronic Filing Rules 45.11
    • D. In Forma Pauperis Status and Appointment of Counsel 45.12
    • E. Jurisdictional Requirements
      • 1. Custody 45.13
      • 2. Naming the Proper Respondent 45.14
      • 3. Time Requirements for Filing 45.15
        • a. Statutory Tolling 45.16
        • b. Equitable Tolling 45.17
      • 4. Scope of Federal Habeas Corpus 45.18
        • a. Standard of Review for State Court Legal Rulings
          • (1) State Court's Interpretation of State Law 45.19
          • (2) State Court's Interpretation of Federal Law 45.20
          • (3) Procedural and Postcard Denials 45.21
        • b. Standard of Review for Findings of Fact 45.22
        • c. Retroactive Application of New Constitutional Rules 45.23
        • d. Other Limitations on Federal Review of State Court Decisions [Deleted] 45.24
        • e. Harmless Error 45.25
      • 5. Procedural Considerations
        • a. Exhaustion of State Remedies 45.26
        • b. Procedural Default 45.27
        • c. Cause and Prejudice 45.28
        • d. Second or Successive Petition 45.29
    • F. Proceedings in District Court
      • 1. Pleadings 45.30
      • 2. Applicability of Rules of Civil Procedure 45.31
      • 3. Fact-Finding in District Court 45.32
        • a. Evidentiary Hearing 45.33
        • b. Discovery 45.34
        • c. Subpoenas 45.35
        • d. Expansion of the Record 45.36
      • 4. Referral to Magistrate Judge 45.37
      • 5. Consent to Magistrate Judge's Exercise of Jurisdiction 45.38
    • G. Mandamus to Compel District Court to Act 45.39
    • H. Disposition 45.40
    • I. Motion for Reconsideration or Rehearing in District Court 45.41
  • VI. APPEAL OF DISTRICT COURT RULING ON HABEAS CORPUS PETITION
    • A. Ninth Circuit Chart of Time Limits 45.42
    • B. Miscellaneous Information About Ninth Circuit Cases 45.43
    • C. Notice of Appeal 45.44
    • D. Certificate of Appealability 45.45
    • E. Other Steps in Perfecting Appeal
      • 1. Docketing Fees; In Forma Pauperis Status 45.46
      • 2. Designating Reporter's Transcript 45.47
      • 3. Clerk's Records 45.48
    • F. Preparing and Filing Briefs and Excerpts of Record 45.49
    • G. Motion to Withdraw as Counsel 45.50
    • H. Standards of Review 45.51
    • I. Oral Argument 45.52
    • J. Requests for Rehearing 45.53
  • VII. REVIEW IN UNITED STATES SUPREME COURT 45.54

46

Revocation of Probation and Mandatory Supervision

Timothy E. Warriner

  • I. OVERVIEW 46.1
  • II. DEADLINES 46.2
  • III. TWO-STEP PROCEDURE FOR REVOCATION OF PROBATION OR MANDATORY SUPERVISION 46.3
  • IV. INITIATING REVOCATION PROCEEDINGS
    • A. Moving Party; Supervised Person's Procedures as Moving Party 46.4
    • B. Grounds for Revocation 46.5
    • C. Bringing Supervised Person Before Court 46.6
    • D. Release Pending Hearing 46.7
    • E. Notice Requirements for Formal Revocation Hearing 46.8
    • F. Expiration of Probation and Mandatory Supervision 46.9
    • G. Timeliness of Motion to Revoke 46.10
    • H. Which Judge Must Preside at Probation Revocation Proceeding 46.10A
    • I. Tolling Time 46.11
  • V. PREREVOCATION HEARING 46.12
  • VI. STIPULATING TO VIOLATION OF PROBATION OR MANDATORY SUPERVISION 46.13
  • VII. FORMAL REVOCATION HEARING
    • A. Advantages of Negotiating Violation of Probation or Mandatory Supervision 46.14
    • B. Supervised Person's Rights at Hearing 46.15
    • C. When and Where Revocation Hearing Should Be Held 46.16
    • D. Reciprocal Discovery 46.17
    • E. Standard of Proof 46.18
    • F. Hearsay Evidence Generally Not Admissible 46.19
    • G. Admissibility of Illegally Obtained Evidence 46.20
    • H. No Requirement of Accomplice Corroboration 46.21
    • I. Effect of Other Proceedings
      • 1. Acquittal or Dismissal; Appeal 46.22
      • 2. Convictions 46.23
      • 3. Preliminary Hearings and Trials in Felony Cases 46.24
      • 4. Previous Revocation Hearing 46.25
    • J. Limited Immunity for Supervised Person's Testimony at Revocation Hearing 46.26
    • K. Reliance on Probation Report 46.27
    • L. Sentencing
      • 1. Importance of Type of Sentence in Underlying Case 46.28
      • 2. Imposition of Sentence Suspended 46.29
      • 3. Execution of Sentence Suspended 46.30
      • 4. Possible Outcomes of Motions to Revoke 46.31
      • 5. Inability to Pay 46.32
      • 6. Credit for Time Served 46.33
      • 7. Written Findings 46.34
    • M. Setting Aside Revocation Order 46.35
    • N. Appealability; Bail on Appeal 46.36
  • VIII. PROPOSITION 36
    • A. General Provisions: Drug Treatment for Nonviolent Drug Offenders 46.37
    • B. Proposition 36 Probation 46.38
    • C. Defendants on Probation July 1, 2001 46.39
    • D. Probation Violation Proceedings Initiated by Probation Department 46.40
    • E. What Qualifies as Drug-Related Condition of Probation? 46.41
    • F. Defendants on Probation for Non-NOVIDPOs 46.42

47

Parole Hearings

Hon. Dylan Sullivan

David Hurd

  • I. OVERVIEW
    • A. Parole Defined 47.1
    • B. Distinction Between Parole Revocation and Life Parole Consideration Hearings 47.1A
    • C. Criminal Justice Reform and Parole
      • 1. Criminal Justice Realignment Act 47.1B
      • 2. Safe Neighborhoods and Schools Act (Proposition 47) 47.1C
      • 3. Public Safety and Rehabilitation Act (Proposition 57) 47.1D
    • D. Parole Revocation Reform 47.1E
  • II. CHART: DEADLINES 47.2
  • III. BASIC RULES PERTAINING TO PAROLE
    • A. Law Governing Parole Hearings 47.3
    • B. The Parole Authority 47.4
      • 1. Parole Authority for Individuals Paroled On or Before October 1, 2011 47.4A
      • 2. Parole Authority for Individuals Paroled On or After October 1, 2011 47.4B
        • a. CDCR Supervision and Jurisdiction 47.4C
        • b. BPH Jurisdiction After July 1, 2013 47.4D
        • c. Postrelease Community Supervision (PRCS) and County Jurisdiction 47.4E
        • d. Multijurisdictional Parolees 47.4F
    • C. Parole Period
      • 1. Parole Period for Individuals Subject to CDCR Jurisdiction 47.5
      • 2. Parole Period for Individuals Subject to Postrelease Community Supervision 47.5A
    • D. Parole Location 47.5B
    • E. Parole Conditions 47.5C
    • F. Special Conditions Relating to Sex Offenders 47.5D
    • G. Termination of Parole Period; Discharge Review for Individuals Subject to CDCR Jurisdiction 47.6
    • H. Termination of Postrelease Community Supervision 47.6A
    • I. Medical Release to Parole
      • 1. Compassionate Release 47.6B
      • 2. Medical Parole 47.6C
      • 3. Expanded Medical Parole 47.6D
  • IV. REVOCATION OF PAROLE
    • A. Consequences of Parole Revocation 47.7
    • B. Grounds for Parole Revocation
      • 1. In General 47.8
      • 2. For Psychiatric Treatment 47.9
    • C. Procedural Rights of Parolee Under CDCR Jurisdiction
      • 1. In General 47.10
      • 2. Constitutional Basis for Procedural Rights 47.11
    • D. Parole Revocation Procedures
      • 1. Suspension of Parole 47.12
      • 2. Grounds for Suspension 47.13
      • 3. Suspension and Reinstatement 47.14
      • 4. Parolees Arrested Out of State 47.15
      • 5. The Revocation Hearing
        • a. Establishing Jurisdiction 47.16
        • b. Record of Hearing 47.17
        • c. Use of Hearsay 47.18
        • d. Burden of Proof 47.19
        • e. Privilege Against Self-Incrimination 47.20
      • 6. Parole Revocation Extension 47.21
  • V. PROPOSITION 36 DRUG TREATMENT 47.22
  • VI. RULES GOVERNING RELEASE OF LIFE PRISONERS AND OTHER PRISONERS SUBJECT TO BOARD OF PAROLE HEARINGS JURISDICTION
    • A. Initial Consultation 47.22A
    • B. Parole Consideration Hearing 47.23
      • 1. Rights of Prisoner 47.24
      • 2. Rights of Victims and Victims' Next of Kin 47.25
      • 3. Attorney Preparation
        • a. Prisoner's Counsel
          • (1) Advance Preparation 47.26
          • (2) Duties of Counsel 47.27
        • b. District Attorney Representative 47.28
      • 4. Additional Individuals Who May Attend or Submit Information 47.29
      • 5. Hearing Procedures 47.30
        • a. Preliminary Matters 47.31
        • b. Precommitment Matters 47.32
        • c. Institutional Behavior 47.33
        • d. Parole Plans 47.34
        • e. Concluding Matters 47.35
      • 6. Determination
        • a. Broad Discretion 47.36
        • b. Youth Offenders 47.36A
        • c. Elderly Offenders 47.36B
        • d. Nonviolent Second Strikers 47.36C
        • e. Prisoner Found Unsuitable for Parole 47.37
        • f. Administrative Reviews 47.37A
        • g. Petitions to Advance Hearing 47.37B
        • h. Setting the Base Term 47.38
      • 7. Review of Panel's Decision
        • a. En Banc Review 47.39
        • b. Executive Case Summaries 47.40
        • c. Review by Chief Counsel; Review by Governor 47.41
      • 8. Release 47.42
    • C. Rescission of Parole Date
      • 1. Life Parole Rescission Hearing 47.43
      • 2. Rights of Prisoners at Rescission Hearings 47.44
    • D. Revocation of Life Parole Under Pen C §3000.1 47.44A
  • VII. REVIEW OF BOARD OF PAROLE HEARINGS DECISIONS
    • A. No Administrative Appeal 47.45
    • B. Judicial Review 47.46

48

Forensic Mental Health Evidence, Laws, and Procedures

John T. Philipsborn

  • I. INTRODUCTION
    • A. Overview 48.1
    • B. Resources 48.2
    • C. Ethical Standards of Mental Health Professionals 48.3
    • D. Evidentiary Considerations 48.4
  • II. CHART: DEADLINES 48.5
  • III. COMPETENCY TO STAND TRIAL
    • A. Purpose and Constitutional Basis; Summary of Procedures Available 48.6
    • B. Role of Defense Counsel
      • 1. Defense Counsel's Obligations 48.7
      • 2. Self-Representation and Substitution of Attorney After Criminal Proceedings Have Been Suspended 48.8
    • C. Access to Lanterman-Petris-Short (LPS) System Through Pen C §4011.6 48.9
    • D. Procedures for Determining Competency
      • 1. Criteria for Determining Competency 48.10
      • 2. Initiating Pen C §1368 Proceedings 48.11
      • 3. LPS Referral Under Pen C §1367.1 in Misdemeanor Cases [Deleted] 48.12
      • 4. Chart: Comparing Procedures Under Pen C §§1367.1 and 1368 [Deleted] 48.13
      • 5. Proceedings That May Take Place After Competency Hearing Ordered 48.14
      • 6. Appointment of Experts; Statements by Defendant 48.15
      • 7. Competency Trial Procedures 48.16
      • 8. Consequences of Finding of Incompetence 48.17
      • 9. Length of Commitment; Credit for Time Served 48.18
      • 10. Resumption of Criminal Proceedings
        • a. Return to Court; When Defendant Must Be Placed in Secure Treatment Facility After Return 48.19
        • b. Penal Code §995 Motion in Felony Cases 48.20
        • c. Medications 48.21
      • 11. Appeal Rights 48.22
    • E. Extended Commitment 48.23
    • F. Procedures Concerning Incompetent Developmentally Disabled Defendants 48.24
    • G. Competency Proceedings in Juvenile Court 48.25
    • H. Incompetence on Appeal and During Postconviction Proceedings 48.26
  • IV. ABSENCE OF CRIMINAL MENTAL STATE
    • A. Failure to Form Intent Required for Commission of Crime
      • 1. Admissibility of Exculpatory Mental State Evidence
        • a. Mental State Evidence Available to Negate Specific Intent and Other Specified Mental States 48.27
        • b. Distinguishing Between Specific and General Intent 48.28
        • c. Statutory Limitations on Use of Exculpatory Mental State Evidence 48.29
        • d. Mental Defenses in Homicide Cases 48.30
        • e. Presenting Mental State Evidence at Trial 48.31
      • 2. Presenting Evidence of Absence of Criminal Mental State
        • a. Introducing Evidence; Instructions 48.32
        • b. Hiring Mental Health Experts 48.33
        • c. Psychotherapist-Patient Privilege 48.34
        • d. Limited Use Immunity for Previous Pen C §1368 Testimony 48.35
        • e. Direct and Cross-Examination of Mental Health Expert 48.36
      • 3. Effect of Successful Lack of Intent Defense 48.37
      • 4. Mental Defenses in Juvenile Court 48.38
    • B. Unconsciousness
      • 1. Definition 48.39
      • 2. Procedure and Effect 48.40
    • C. Involuntary Intoxication 48.41
  • V. INSANITY
    • A. Modified M'Naghten Insanity Rule
      • 1. Statement of Rule 48.42
      • 2. Defendant Must Know or Understand Nature and Quality of Act 48.43
      • 3. Definition of Wrongfulness 48.44
      • 4. Volitional and Settled Insanity; Alcoholics and Drug Addicts 48.45
    • B. Procedure for Presenting Insanity Defense
      • 1. Entering and Withdrawing Plea 48.46
      • 2. Court Appointment of Experts 48.47
      • 3. Trial Procedure
        • a. Bifurcated Trial 48.48
        • b. Evidence During Guilt and Sanity Phases 48.49
        • c. Burden of Proof 48.50
        • d. Order of Proof 48.51
        • e. Unanimous Verdict 48.52
    • C. Commitment Procedure 48.53
    • D. Outpatient Status
      • 1. Granting Outpatient Status 48.54
      • 2. Annual Review 48.55
      • 3. Revocation of Outpatient Status 48.56
      • 4. Authority for Outpatient Treatment 48.57
    • E. Restoration of Sanity and Release 48.58
    • F. Extension of Commitment; Credit for Time Served 48.59
  • VI. COGNITIVE DEVELOPMENTAL DISORDERS
    • A. "Idiocy" 48.60
    • B. Intellectual Disability as Bar to Death Penalty 48.61
  • VII. SEXUALLY VIOLENT PREDATOR COMMITMENTS
    • A. Sexually Violent Predator (SVP) Act 48.62
    • B. Filing of SVP Petition 48.63
    • C. Probable Cause Hearing 48.64
    • D. Trial 48.65
    • E. Commitment as SVP 48.66
    • F. Annual Review of Commitment and Release 48.67
    • G. Conditional Release Program 48.68
    • H. Notice of SVP's Release; Placement 48.69
  • VIII. MENTALLY DISORDERED SEX OFFENDER (MDSO) PROCEDURES STILL APPLY TO PERSONS COMMITTED UNDER REPEALED PROVISIONS 48.70
  • IX. MENTALLY DISORDERED OFFENDER (MDO) PROCEEDINGS
    • A. Nature of MDO Proceedings 48.71
    • B. Criteria for Mandatory Commitment as Condition of Parole 48.72
    • C. Treatment as MDO 48.73
    • D. Court Review of MDO Commitment Order 48.74
    • E. Postprison or Postparole Involuntary Commitments 48.75
    • F. Right to Treatment; Outpatient Status 48.76
  • X. COMMITMENT ALTERNATIVES
    • A. Treatment for Developmentally Disabled Individuals Under Lanterman Developmental Disabilities Services Act 48.77
    • B. Diversion for Misdemeanants With Cognitive Developmental Disabilities Under Pen C §§1001.20—1001.34 48.78
    • C. Treatment of Mentally Disordered Individuals Under Lanterman-Petris-Short Act 48.79

49

Immunity for Testimony

Garrick S. Lew

Jeffrey G. Adachi

  • I. OVERVIEW 49.1
  • II. CHART: DEADLINES 49.2
  • III. TYPES OF IMMUNITY: TRANSACTIONAL AND USE IMMUNITY 49.3
  • IV. FIFTH AMENDMENT PRIVILEGE MUST APPLY BEFORE IMMUNITY APPLIES; DETERMINATION BY COURT 49.4
  • V. IMMUNITY PROCEDURES IN CALIFORNIA STATE COURTS
    • A. Immunity Available in Felony Cases 49.5
    • B. Immunity Available in Misdemeanor Cases 49.6
    • C. Immunity Grants in Felony Cases Under Pen C §1324
      • 1. Prosecution Request Required 49.7
      • 2. Prosecutor Can Request Use or Transactional Immunity 49.8
      • 3. Procedures for Granting Immunity 49.9
    • D. Immunity Grants in Misdemeanor Cases Under Pen C §1324.1 49.10
    • E. Granting Immunity to Codefendant During Trial
      • 1. Prosecution Request (Pen C §1099) 49.11
      • 2. Defense Request or Judge's Own Motion (Pen C §1100) 49.12
      • 3. Effect of Dismissal Under Pen C §§1099, 1100 49.13
    • F. Judicial Use Immunity 49.14
    • G. Defense-Initiated Immunity Is Usually Unavailable 49.15
    • H. Immunity for In-Custody Informants Under Pen C §4001.1 49.16
    • I. Immunity Under Health & S C §11367 for Informants in Drug Buys 49.17
    • J. Appellate Review of Immunity Bargain 49.18
  • VI. DEFENSE RESPONSE TO GRANT OF IMMUNITY
    • A. Possible Defense Arguments Against Grant of Immunity to Witness to Testify for Prosecution 49.19
    • B. Defense Right to Discovery 49.20
      • 1. Suggested Areas for Defense Discovery Requests, and for Defense Questioning at Immunity Bargain Hearing, Trial, or Both 49.21
      • 2. Cross-Examination During Trial 49.22
      • 3. Instructions 49.23
  • VII. WAIVER OF PRIVILEGE AGAINST SELF-INCRIMINATION OR OF IMMUNITY BY IMMUNIZED WITNESS 49.24
  • VIII. PROSECUTION OF WITNESSES WHO HAVE RECEIVED IMMUNITY
    • A. When Prosecution Is Possible 49.25
    • B. Raising Immunity as Defense to Prosecution 49.26
  • IX. WITNESS'S LIABILITY TO PROSECUTION IN OTHER JURISDICTIONS 49.27

50

Extradition

Tia M. Coronado

  • I. OVERVIEW 50.1
  • II. CHART: DEADLINES 50.2
  • III. UNIFORM CRIMINAL EXTRADITION ACT (UCEA)
    • A. Persons Subject to Extradition
      • 1. Fugitives 50.3
      • 2. Nonfugitives: Crime in Demanding State Occurred in California or in Another State 50.4
      • 3. Juveniles 50.5
    • B. Only Persons Charged With Crime Are Subject to Extradition 50.6
    • C. Proceedings Before Governor's Warrant Issues
      • 1. Arrest of Suspected Fugitive 50.7
      • 2. Arraignment 50.8
      • 3. Bail Before Governor's Warrant Served 50.9
      • 4. Identity Hearing (Also Called Probable Cause or Pen C §1551.2 Hearing)
        • a. When Required; Time Limits 50.10
        • b. Procedures at Identity Hearing 50.11
        • c. Effect of Dismissal 50.12
      • 5. Commitment Order; Arrest on Governor's Warrant 50.13
    • D. Procedures to Secure Governor's Warrant
      • 1. Documents Needed to Support Extradition Warrant; Required Contents of Requisition 50.14
      • 2. Review by Attorney General of Incoming and Outgoing Extradition Cases 50.15
      • 3. Review by Extradition Officer; Reasons Extradition Usually Approved 50.16
    • E. Tactical Considerations for Resisting Extradition Before Governor's Warrant Issues
      • 1. Deciding Whether to Resist Extradition 50.17
      • 2. Procedures for Resisting Extradition 50.18
      • 3. Arguments Against Extradition
        • a. Arguments That May Be Raised and When They May Be Raised 50.19
        • b. Innocence 50.20
        • c. Legal Insufficiency 50.21
        • d. Inherent Justice 50.22
        • e. Lack of Seriousness of Crime 50.23
        • f. Offense Charged Not Crime in California 50.24
        • g. Rehabilitation 50.25
      • 4. Governor's Hearing
        • a. Hearing Is Not a Right; Limited Primarily to Nonfugitives 50.26
        • b. Request for Governor's Hearing 50.27
        • c. Decision to Grant or Deny Hearing 50.28
        • d. Conduct of Hearing; Argument 50.29
        • e. Proceedings After Governor's Hearing 50.30
      • 5. Seeking Withdrawal of Extradition Request 50.31
      • 6. Seeking Case Settlement on Extradition Request 50.32
      • 7. Guidelines of National Association of Extradition Officials 50.33
    • F. Issuance of Governor's Warrant 50.34
    • G. Procedures After Governor's Warrant Issues
      • 1. Arrest 50.35
      • 2. Arraignment on Governor's Warrant 50.36
      • 3. No Bail After Governor's Warrant Served 50.37
      • 4. Stay of Extradition 50.38
    • H. Habeas Corpus
      • 1. Issues That May Be Raised 50.39
      • 2. Where Habeas Corpus Petition Is Filed; Burden of Proof 50.40
      • 3. Court Procedures After Decision
        • a. Habeas Corpus Denied 50.41
        • b. Habeas Corpus Granted 50.42
    • I. Effect of Prior Failure or Unsuccessful Attempt to Extradite 50.43
    • J. Credit for Time in Custody Awaiting Extradition 50.44
    • K. Waiver of Extradition
      • 1. Waiver Before California Magistrate 50.45
      • 2. Waiver Signed in Demanding State 50.46
  • IV. ALTERNATIVES TO EXTRADITION
    • A. Interstate Family Support Act 50.47
    • B. Interstate Compact for Adult Offender Supervision 50.48
    • C. Agreement on Detainers 50.49
    • D. Uniform Act to Secure Attendance of Witnesses From Without the State in Criminal Cases 50.50
    • E. Interstate Compact for Juveniles 50.51
    • F. Death Penalty Extradition Cases 50.52

51

Advising Witnesses

Kimberly Kupferer

  • I. OVERVIEW 51.1
  • II. OBLIGATIONS OF SUBPOENAED WITNESS AND WITNESS'S COUNSEL
    • A. Obligations of Witness 51.2
    • B. Duties of Counsel 51.2A
  • III. DEFENDANT'S PRIVILEGE NOT TO BE CALLED AS WITNESS DISTINGUISHED 51.3
  • IV. WHETHER TO ADVISE WITNESS TO REFUSE TO TESTIFY 51.4
  • V. BURDEN OF PROOF; COURT'S POWER TO INQUIRE INTO FACTS 51.5
  • VI. OPTIONS OF PARTY CALLING WITNESS WHEN PRIVILEGE IS ALLOWED 51.6
  • VII. REPRESENTING WITNESS WITH CRIMINAL CASES PENDING WHO IS NOT CODEFENDANT 51.7
  • VIII. REPRESENTING WITNESS WHO IS OFFERED IMMUNITY
    • A. Attorney Needs Special Expertise 51.8
    • B. Plea Bargain Options; Security 51.9
    • C. Options to Protect Informant 51.10
    • D. Plea Bargains That Are Not Explicit 51.11
    • E. Disclosures Made Outside Court Not Covered by Immunity Grant 51.12
  • IX. IN-CUSTODY INFORMANTS 51.13
  • X. REPRESENTING WITNESS IN BORDERLINE FIFTH AMENDMENT CASE 51.14
  • XI. WHEN COUNSEL MAY NOT ADVISE WITNESS ON SELF-INCRIMINATION ISSUES 51.15
  • XII. USING SUBPOENA TO SECURE WITNESS'S ATTENDANCE 51.16
  • XIII. STATE AND FEDERAL WITNESS PROTECTION: PITFALLS AND TRAPS 51.17

52

Representing the Noncitizen Criminal Defendant

Michael K. Mehr

Graciela Martinez

  • I. OVERVIEW 52.1
  • II. UNIQUE ASPECTS OF NONCITIZEN DEFENDANT CASES
    • A. Checklist: Basic Procedure for Criminal Defense of Immigrants 52.2
    • B. Interviewing Noncitizen Criminal Defendants and Basic Immigration Status Questionnaire 52.3
    • C. Main Defense Goals in Representing Juveniles 52.4
    • D. Noncitizen Status
      • 1. Noncitizen Status as Affecting Bail 52.5
      • 2. Noncitizen Status as Affecting Other Issues 52.6
      • 3. California TRUST Act 52.6A
        • a. Litigation 52.6B
        • b. Relevant Terms 52.6C
        • c. TRUST Act Disqualifiers 52.6D
      • 4. Truth Act 52.6E
    • E. Interpreters 52.7
    • F. Requirements Concerning Immigration Status When Pleading Guilty or No Contest 52.8
    • G. Availability of Noncitizen Witnesses 52.9
    • H. Immigrant Victims of Crime Equity Act 52.9A
    • I. Consequences of Sentence in Criminal Cases 52.10
    • J. Former Judicial Recommendation Against Deportation (JRAD) 52.11
    • K. Effect of Postconviction Relief on Immigration Status 52.12
      • 1. Vacating Conviction 52.13
      • 2. Expungement (Pen C §1203.4) and Other Forms of State Rehabilitative Relief 52.14
      • 3. Other Postconviction Relief 52.15
      • 4. Responsibilities of Original Counsel When Client Seeks Postconviction Relief 52.16
  • III. APPLICABLE IMMIGRATION LAW
    • A. Effect of Criminal Record on Immigration 52.17
      • 1. Grounds of Inadmissibility 52.18
      • 2. Grounds of Deportability 52.19
      • 3. Procedures for Determining Admissibility or Deportability
        • a. Removal Proceedings 52.20
        • b. Expedited Proceedings for Aggravated Felonies 52.21
        • c. Waiver of Deportability and Inadmissibility 52.22
      • 4. Bar to Establishing Good Moral Character 52.23
    • B. Chart: Comparing Grounds for Inadmissibility, Deportability, and Bar to Establishing Good Moral Character 52.24
    • C. Convictions and Sentences With Adverse Immigration Consequences
      • 1. Definition of "Conviction" for Immigration Purposes; Record of Conviction
        • a. Definition of Conviction 52.25
        • b. Divisible Statute and Record of Conviction 52.26
      • 2. Dispositions That May Not Constitute Convictions
        • a. Juvenile Court Dispositions 52.27
        • b. Appeal of Conviction Not Exhausted 52.28
        • c. Disposition Without Guilty Plea 52.29
      • 3. Offenses Involving Controlled Substances 52.30
        • a. Controlled Substances Grounds of Deportability and Inadmissibility, and Bar to Good Moral Character 52.31
        • b. Exceptions: Offenses That Are Not Classed as Controlled Substance Offenses for Immigration Purposes 52.32
        • c. Adult Use of Marijuana Act (Proposition 64): Benefits and Risks 52.32A
        • d. Which Drug Offenses Are Aggravated Felonies 52.33
        • e. Strategy 52.34
      • 4. Offenses Involving Firearms or Destructive Devices
        • a. Firearms Ground of Deportability; Definition of Firearm and Destructive Device 52.35
        • b. Firearms Offenses That Are Aggravated Felonies 52.36
        • c. Strategy 52.37
      • 5. Crimes Involving Moral Turpitude
        • a. Definition 52.38
        • b. Consequences of Conviction or Admission of Crime Involving Moral Turpitude; Remedies 52.39
        • c. Strategy 52.40
      • 6. Aggravated Felonies
        • a. Definition of Aggravated Felony: Overview 52.41
        • b. Sentence Requirements for Some Aggravated Felonies 52.42
        • c. Analysis of State Offenses as Aggravated Felonies 52.43
        • d. Consequences of Conviction of Aggravated Felony 52.44
        • e. Specific Aggravated Felonies and Exceptions 52.44A
          • (1) Rape, Sexual Abuse of a Minor 52.45
          • (2) Burglary, Theft, Receipt of Stolen Property, Forgery, Crime of Fraud or Deceit With Loss Exceeding $10,000 52.46
          • (3) Crimes of Violence 52.47
      • 7. Domestic Violence and Crimes Against Children
        • a. Definition 52.48
        • b. Strategy 52.49
    • D. Conduct-Based Immigration Consequences 52.50
    • E. Checklist: Defendant's Eligibility for Immigration Relief 52.51
    • F. Forms of Immigration Relief Available From Department of Homeland Security (DHS) and Federal Courts 52.52
      • 1. Checklist: Lawful Permanent Residents: Cancellation of Removal 52.53
      • 2. Checklist: United States Citizenship 52.54
      • 3. Checklist: Certain Nonpermanent Residents: Suspension of Deportation or Cancellation of Removal; Special Rules for Nonpermanent Residents From Certain Countries 52.55
      • 4. Checklist: Immigration Through Visa Petition Based on Relationship With Citizen or Permanent Resident Relative; Waiver of Certain Crimes-Based Grounds of Inadmissibility 52.56
      • 5. Checklist: Political Asylum, Restricting/Withholding of Removal, and U.N. Convention Against Torture 52.57
      • 6. Checklist: Temporary Protected Status (TPS) 52.58
      • 7. Voluntary Departure 52.59
      • 8. Checklist: Registry 52.60
      • 9. Checklist: Relief for Abused Spouses and Children 52.61
      • 10. Checklist: Status for Victims, Witnesses, and Informants Regarding Crime 52.62
      • 11. Deferred Action for Childhood Arrivals 52.63
  • IV. IMMIGRATION ENFORCEMENT 52.64
  • V. ILLEGAL REENTRY AFTER DEPORTATION 52.65

53

Effect of Criminal Conviction on Professional Licenses

Adam G. Slote

  • I. OVERVIEW 53.1
  • II. LICENSING STATUTES 53.2
  • III. PROTECTION OF RIGHT TO PRACTICE PROFESSION
    • A. Right to Practice One's Profession 53.3
    • B. "Substantial Relationship" Test 53.4
    • C. Board May Look Beyond Plea or Verdict to Circumstances of Case 53.5
    • D. Rehabilitation 53.6
  • IV. AGENCY INVESTIGATIONS AND SELF-REPORTING REQUIREMENTS
    • A. Preconviction Investigations 53.6A
    • B. Reporting Requirements 53.6B
    • C. Arrest May Trigger Disciplinary Action 53.6C
  • V. "CONVICTION" FOR PURPOSES OF AFFECTING PROFESSIONAL LICENSE
    • A. Conviction Defined 53.7
    • B. Plea of Nolo Contendere Usually Equivalent to Guilty Plea 53.8
    • C. Infractions 53.9
    • D. Misdemeanor Versus Felony Conviction 53.10
    • E. Crimes of Moral Turpitude 53.11
    • F. Effect of Diversion, Deferred Entry of Judgment, and Prop 36 Drug Treatment on Denial and Revocation of Licenses 53.12
    • G. Effect on Professional Licenses of Expungement, Sealing, or Other Relief From Conviction 53.13
    • H. Reporting Requirements [Deleted] 53.14
    • I. Collateral Consequences 53.15
  • VI. SPECIAL RELATIONSHIPS BETWEEN CRIMINAL AND ADMINISTRATIVE CASES
    • A. Effect of Acquittal in Criminal Case on Administrative Case 53.16
    • B. Effect of Decision in Administrative Case on Related Criminal Prosecution 53.17
    • C. Effect of Search and Seizure Ruling in Criminal Case on Administrative Case 53.18
    • D. Peace Officer's Statements During Internal Investigation 53.19
  • VII. SPECIAL ISSUES FOR ATTORNEYS IN CRIMINAL CASES
    • A. Issues for the Prosecutor: Charging, Plea Bargains, Reporting to State Agencies 53.20
    • B. Issues for the Defense Attorney
      • 1. Explore Early and Creative Settlement to Avoid Conviction 53.21
      • 2. Client's Statements or Testimony 53.22
      • 3. Counseling Client to Begin Rehabilitation 53.23
    • C. Sentencing Issues 53.24

54

Death Penalty Cases

Michael Ogul

  • I. OVERVIEW 54.1
  • II. CHART: DEADLINES 54.2
  • III. QUALIFICATIONS OF APPOINTED COUNSEL 54.2A
  • IV. COMPLAINT, INFORMATION, AND INDICTMENT
    • A. Pleading Special Circumstances (Death Penalty)
      • 1. Manner of Pleading Special Circumstances 54.3
      • 2. Charging Substantive Crimes 54.4
    • B. Procedural Differences Relating to Special Circumstance Allegations
      • 1. Evidence of Uncharged Special Circumstances Must Be Presented at Preliminary Hearing or Grand Jury Proceeding; Adequate Notice Must Be Given to Counsel 54.5
      • 2. Bail 54.6
      • 3. Demurrers to Special Circumstance Allegations 54.7
      • 4. Other Procedural Safeguards 54.8
  • V. PRETRIAL MOTIONS FREQUENTLY MADE IN CAPITAL CASES
    • A. Additional Counsel Is Usually Appointed 54.9
    • B. Defendant's Right to Self-Representation, to Have Advisory Counsel Appointed, or to Have Co-Counsel Status 54.10
    • C. Funds for Ancillary Defense Services
      • 1. In Capital Special Circumstance Cases 54.11
      • 2. In Noncapital Special Circumstance Cases 54.12
    • D. Discovery Motion
      • 1. Discovery Concerning Guilt and Penalty Phases 54.13
      • 2. Discovery Concerning Evidence to Support Motion for Noncapital Penalty 54.14
    • E. Motion for Conditional Examination of Witnesses 54.15
    • F. Motion to Dismiss Special Circumstance Under Pen C §§871.5, 995 54.16
    • G. Motion to Dismiss Special Circumstance Under Pen C §1385 54.17
    • H. Motion to Strike Prior Murder Special Circumstance 54.18
    • I. Application for Intellectual Disability Hearing 54.18A
    • J. Jury Waiver 54.19
    • K. Change of Venue 54.19A
  • VI. NOTICE BY PROSECUTOR OF AGGRAVATING PENALTY PHASE EVIDENCE 54.20
  • VII. TRIAL MOTIONS FREQUENTLY MADE IN CAPITAL CASES
    • A. Motion to Exclude Guilt or Penalty Phase Evidence 54.21
    • B. Motion to Require District Attorney to Declare Intent to Seek Death Penalty if Jury Renders Special Circumstance Verdict [Deleted] 54.22
    • C. Motion for Two Juries 54.23
  • VIII. PLEA BARGAINING IN SPECIAL CIRCUMSTANCE CASES 54.24
  • IX. GUILT PHASE
    • A. Jury Selection
      • 1. Individual Voir Dire; Presence of Press 54.25
      • 2. Jury Questionnaires 54.26
      • 3. Jury Selection Expert 54.27
      • 4. Juror Challenges
        • a. Grounds 54.28
        • b. Number of Peremptory Challenges 54.29
    • B. Conduct of Guilt Phase
      • 1. Order of Proof 54.30
      • 2. Burden of Proof; Other Proof Requirements 54.31
    • C. Elements of Certain Special Circumstances 54.32
  • X. CHECKLIST: PRE-PENALTY-PHASE MOTIONS 54.33
  • XI. PENALTY PHASE
    • A. Burden of Proof 54.34
    • B. Permissible Evidence 54.35
    • C. Evidence in Aggravation
      • 1. Summary of Evidence Admissible in Aggravation 54.36
      • 2. Statutory Factors in Aggravation
        • a. Circumstances of Crime and Special Circumstance (Pen C §190.3(a))
          • (1) Victim Impact 54.37
          • (2) Other Aspects of Crime 54.38
        • b. Presence or Absence of "Other Crimes" Criminal Activity Involving Violence (Pen C §190.3(b))
          • (1) Prior Crime Victim Impact 54.39
          • (2) Mutually Exclusive 54.40
          • (3) Conduct Must Constitute Crime "Involving" Violence or Threatened Violence 54.41
          • (4) Not Limited to Particular Time Frame 54.42
          • (5) Barred by "Acquittal" 54.43
          • (6) Fifth Amendment 54.44
          • (7) Discretion to Exclude Evidence 54.45
        • c. Prior Felony Convictions (Pen C §190.3(c)) 54.46
        • d. Age of Defendant (Pen C §190.3(i)) 54.47
      • 3. Rebuttal; Cross-Examination 54.48
    • D. Evidence in Mitigation 54.49
    • E. Defense Counsel's Obligations at Penalty Phase 54.50
    • F. Penalty Phase Argument 54.51
    • G. Penalty Phase Instructions 54.52
  • XII. POSTVERDICT MOTIONS IN CAPITAL CASES
    • A. Trial Judge Must Review Death Penalty Verdict 54.53
    • B. Constitutional Issues in Selected Cases
      • 1. Due Process and Equal Protection 54.54
      • 2. Cruel and Unusual Punishment
        • a. Proportionality 54.55
        • b. Intellectual Disability 54.55A
    • C. Motion for New Trial; Motion for Reduction of Verdict or Penalty 54.56
  • XIII. PRONOUNCEMENT OF JUDGMENT
    • A. Judgment of Death 54.57
    • B. Sentences on Noncapital Verdicts in Capital Cases 54.58
  • XIV. DUTIES OF TRIAL COUNSEL ON APPEAL 54.59
  • XV. SETTING OF EXECUTION DATE FOLLOWING AFFIRMANCE 54.60

55

Driving Under the Influence Cases

Myles L. Berman

Derek A. Danielson

  • I. OVERVIEW 55.1
  • II. ARREST AND RELEASE 55.2
  • III. POTENTIAL CRIMINAL CHARGES FOR DUI 55.3
  • IV. ENHANCEMENTS; IMPOUNDMENT ORDER 55.4
  • V. ELEMENTS OF DUI (VEH C §23152(a)) 55.5
    • A. Driving 55.6
    • B. Vehicle 55.7
    • C. Under the Influence 55.8
    • D. Alcoholic Beverage 55.9
    • E. Drug 55.10
  • VI. ELEMENTS OF DRIVING WITH BAC OF AT LEAST 0.08 (VEH C §23152(b)) 55.11
  • VII. PROCEDURAL CONSIDERATIONS
    • A. Arraignment 55.12
    • B. Speedy Trial 55.13
    • C. Demurrers 55.14
    • D. Venue 55.15
  • VIII. MOTIONS 55.16
    • A. Discovery
      • 1. Requirements 55.17
      • 2. Remedies for Noncompliance 55.18
    • B. Failure to Preserve Evidence 55.19
    • C. Admonishments and Failure by Arresting Agency to Properly Admonish 55.20
    • D. Retesting of Blood or Urine Sample 55.21
    • E. Motions to Suppress Horizontal Gaze Nystagmus (HGN) Observations 55.22
    • F. Motions to Suppress Defendant's Statements 55.23
    • G. Preliminary Alcohol Screening (PAS) Devices 55.24
    • H. Penal Code §1538.5 Motions
      • 1. In General 55.25
      • 2. Probable Cause 55.26
      • 3. Arrest 55.27
      • 4. Prolonged Detention 55.28
      • 5. Defendant's Efforts to Obtain Test Frustrated 55.29
      • 6. Speed Traps 55.30
      • 7. DUI Checkpoints 55.30A
  • IX. PRIOR CONVICTIONS
    • A. In General 55.31
    • B. What May Be Challenged 55.32
    • C. Obtaining Information About Prior 55.33
    • D. Evaluating Options 55.34
    • E. Requirements for Motion to Strike Prior; Hearing 55.35
  • X. CORPUS DELICTI 55.36
  • XI. LABORATORY REQUIREMENTS 55.37
  • XII. EXPERT TESTIMONY 55.38
  • XIII. JURY INSTRUCTIONS 55.39
  • XIV. ROLE OF DEPARTMENT OF MOTOR VEHICLES 55.40
  • XV. PROBATION TERMINATION AND REVOCATION; EXPUNGEMENT 55.41

56

Juvenile Delinquency Proceedings

Douglas S. Feinberg

Jonathan Laba

  • I. OVERVIEW 56.1
  • II. CHART: DEADLINES 56.2
  • III. JURISDICTION; VENUE; INFRACTIONS
    • A. Jurisdiction 56.3
    • B. Venue 56.4
    • C. Infractions; Juvenile Hearing Officers 56.4A
  • IV. NATURE OF JUVENILE COURT
    • A. Purpose of Juvenile Court Law 56.5
    • B. Comparing Adult and Juvenile Courts 56.6
    • C. Registration Requirements and Other Collateral Consequences of Juvenile Adjudications 56.6A
    • D. Confidentiality: Who May Be Present at Juvenile Court Hearings 56.7
    • E. Release of Information 56.8
    • F. Parental Costs 56.9
  • V. INITIATING PROCEEDINGS IN JUVENILE COURT
    • A. Arrest; Police Officer Options 56.10
    • B. Probation Officer's Options and Duties at Intake 56.11
    • C. Probation Officer's Options Concerning Detention
      • 1. When Release Required 56.12
      • 2. Home Supervision 56.13
      • 3. No Right to Bail 56.14
    • D. Informal Probation 56.15
    • E. Petition; Charging by Prosecutor 56.16
    • F. Deferred Entry of Judgment 56.17
  • VI. COUNSEL FOR MINOR AND PARENTS
    • A. Minor's Counsel 56.18
    • B. Counsel for Minor's Parents or Guardian 56.18A
  • VII. ARRAIGNMENT AND DETENTION HEARING
    • A. Arraignment and Setting Petition for Hearing; Entry of Plea 56.19
    • B. When Detention Hearing Is Required; Trier of Fact; Time When Held 56.20
    • C. Notice of Detention Hearing 56.21
    • D. Conduct of Detention Hearing 56.22
    • E. Court's Ruling 56.23
    • F. Review of Detention Order 56.24
  • VIII. OTHER PRELIMINARY PROCEEDINGS
    • A. Joint Assessment Hearing When Child Appears to Fit Dependency and Wardship Criteria 56.25
    • B. Mental Health Issues 56.26
    • C. Restraining Orders 56.26A
    • D. Petition to Establish Familial Relationship 56.26B
  • IX. NEGOTIATION OF CHARGES AND THREE STRIKES
    • A. Negotiation of Charges 56.27
    • B. Three Strikes: Use of Juvenile Adjudications in Adult Court 56.28
  • X. TRANSFER TO ADULT COURT
    • A. Elimination of Prosecutors' Ability to "Direct File" Charges in Adult Court 56.29
    • B. Prosecution Motion to Transfer Minor to Adult Court 56.30
    • C. Five Court Days' Notice Required; When Hearing Held 56.31
    • D. Probation Officer's Investigation and Report; Later Use of Minor's Statements 56.32
    • E. Minor's Right to Prima Facie Ruling at Transfer Hearing 56.33
    • F. Conduct of Transfer Hearing 56.34
    • G. Court's Required Findings Under Welf & I C §707 56.35
    • H. Effect of Prior Ruling Transferring Minor to Adult Criminal Court 56.36
    • I. Right of Minor or Adult to Demand Transfer 56.37
    • J. Review of Transfer Order
      • 1. Review Requested by Minor's Counsel 56.38
      • 2. Review Requested by Prosecution 56.39
    • K. Sentencing of Minors Convicted in Adult Court
      • 1. Generally 56.39A
      • 2. Limitations on Initial Sentences for Minors in Adult Court 56.39B
      • 3. Postsentencing Options for Early Release and Resentencing of Minors Convicted in Adult Court 56.39C
  • XI. PREJURISDICTION HEARING (PRETRIAL) MOTIONS
    • A. Motions by Minor 56.40
    • B. Prosecution Motions 56.41
    • C. Format, Service, and Filing of Motions 56.42
    • D. Searches and Seizures 56.43
    • E. Discovery 56.44
  • XII. JURISDICTION HEARING
    • A. Jurisdiction Hearing Is Like Criminal Court Trial 56.45
    • B. Statutory Time Limits 56.46
    • C. Continuance; Dismissal; Refiling 56.47
    • D. Midtrial Amendment of Petition 56.48
    • E. Rules of Evidence 56.49
    • F. Rebuttable Presumption When Minor Under 14 56.50
    • G. Confessions and Admissions 56.51
    • H. Court's Finding 56.52
  • XIII. DISPOSITION HEARING
    • A. Nature of Disposition Hearing 56.53
    • B. Timing of Hearing; Conduct of Hearing 56.54
    • C. Dispositional Choices
      • 1. Overview of Alternatives at Disposition 56.55
      • 2. Dismissal 56.56
      • 3. Probation Without Wardship 56.57
      • 4. Wardship
        • a. Dispositional Options When Court Declares Wardship 56.58
        • b. Placement of Minor Removed From Physical Custody of Parent or Guardian 56.59
        • c. Probation Conditions 56.60
        • d. Restitution to the Victim 56.61
        • e. Fines and Fees 56.62
        • f. Determining the Maximum Period of Confinement 56.63
        • g. Time Credits 56.64
  • XIV. DIVISION OF JUVENILE FACILITIES (DJF)
    • A. General Principles of DJF Commitments 56.65
    • B. Qualifying Offenses 56.65A
    • C. Determining Maximum Period of Confinement for DJF Commitments 56.65B
    • D. Release From DJF 56.65C
    • E. Extended Commitment of Dangerous Minors 56.66
    • F. Juvenile Court Oversight of Wards Committed to DJF 56.67
  • XV. POSTDISPOSITION PROCEEDINGS 56.68
  • XVI. REVIEW OF ORDERS MADE BY REFEREES AND COMMISSIONERS 56.69
  • XVII. APPEAL 56.70

57

Asset Forfeiture

Michael P. Running, Jr.

  • I. OVERVIEW 57.1
  • II. CHART: DEADLINES 57.2
  • III. CHART: DIFFERENCES BETWEEN 1993 AND 1994 FORFEITURE LAW [Deleted] 57.3
  • IV. NATURE OF FORFEITURE PROCEEDINGS
    • A. Forfeiture Proceedings Are Primarily Civil in Nature 57.4
    • B. Government's Interest in Property; Relation-Back Rule 57.5
    • C. Federal Forfeiture Laws 57.6
  • V. PROPERTY SUBJECT TO FORFEITURE 57.7
  • VI. JURISDICTION; VENUE 57.8
  • VII. TYPES OF FORFEITURE PROCEEDINGS
    • A. Three Types of Forfeiture Proceedings 57.9
    • B. Differences Between Administrative Forfeiture and Judicial Forfeiture 57.10
  • VIII. ADMINISTRATIVE (NONJUDICIAL) FORFEITURE
    • A. Meant to Be Summary Procedure 57.11
    • B. Notice of Administrative Forfeiture Required 57.12
    • C. Standing: Only Those With Standing Can Oppose Forfeiture 57.13
    • D. Claim Opposing Administrative Forfeiture 57.14
    • E. If No Claim or if Improper or Late Claim Is Filed, Property Is Forfeited 57.15
    • F. Limited Relief From Failure to File or Late Filing 57.16
    • G. Filing of Claim Mandates Initiation of Judicial Proceeding 57.17
  • IX. JUDICIAL FORFEITURE
    • A. Initiating Judicial Forfeitures
      • 1. When Judicial Forfeiture Is Required, Even Without Filing of Claim 57.18
      • 2. Prosecutor Files Petition 57.19
      • 3. Time for Filing Petition 57.20
      • 4. Lis Pendens Must Be Filed When Real Property Is to Be Forfeited 57.21
      • 5. Service of Petition 57.22
    • B. Response to Petition: Claim 57.23
    • C. Procedures When No Timely Claims Filed 57.24
    • D. Discovery 57.25
    • E. Case Settlement 57.26
    • F. Judicial Forfeiture Trial
      • 1. Relationship of Forfeiture to Related Criminal Case; When Tried Separately as Civil Case 57.27
      • 2. Claim in Forfeiture Action Is Inadmissible in Criminal Case 57.28
      • 3. Conduct of Forfeiture Trial 57.29
  • X. MOTION IN CRIMINAL CASE FOR RETURN OF SEIZED PROPERTY 57.30
  • XI. DEFENSES TO FORFEITURE
    • A. First Party Claims 57.31
    • B. Third Party Claims 57.32
  • XII. DEFENSE ATTORNEY PAYMENT FROM PROPERTY SUBJECT TO FORFEITURE 57.33
  • XIII. CONSTITUTIONAL CONSIDERATIONS
    • A. Fourth Amendment 57.34
    • B. Fifth Amendment: Self-Incrimination Clause 57.35
    • C. Fifth Amendment: Double Jeopardy 57.35A
    • D. Sixth Amendment 57.36
    • E. Eighth Amendment 57.37

58

Contempt

Michael McCormick

  • I. OVERVIEW 58.1
  • II. CONTEMPT POWER
    • A. Definition; Inherent and Statutory Authority; Jurisdiction 58.2
    • B. Limitations on Contempt Power 58.3
    • C. Differences Between Criminal and Civil Contempt 58.4
    • D. Civil Contempt
      • 1. Code of Civil Procedure §1209 58.5
      • 2. Disobedience of Court Order 58.6
      • 3. Punishment for Civil Contempt
        • a. Civil Punitive Contempt 58.7
        • b. Civil Coercive Contempt 58.8
        • c. Burden of Proof 58.9
    • E. Criminal Contempt
      • 1. Penal Code §166 58.10
      • 2. General Intent Crime 58.11
      • 3. Punishment for Criminal Contempt 58.12
      • 4. Double Jeopardy 58.13
  • III. ATTORNEY CONTEMPT
    • A. Advocacy Versus Respect for Court 58.14
    • B. Warning 58.15
    • C. Apology 58.16
    • D. Specific Conduct Constituting Direct Civil Contempt 58.17
    • E. Specific Conduct Constituting Indirect Civil Contempt 58.18
    • F. Specific Conduct Constituting Hybrid Civil Contempt
      • 1. Failure to Appear 58.19
      • 2. Misrepresentation to Court 58.20
      • 3. Failure to Be Ready for Trial 58.21
      • 4. Failure to File Appellate Brief on Time 58.21A
      • 5. Failure to Provide Discovery 58.22
  • IV. WITNESS CONTEMPT
    • A. In General 58.23
    • B. Particular Witnesses
      • 1. Particular Crime Victims 58.24
      • 2. Juveniles 58.25
      • 3. Newspersons 58.26
  • V. CONTEMPT PROCEDURES
    • A. Civil Contempt
      • 1. Constitutional Guaranties 58.27
      • 2. Classification of Civil Contempt to Determine Which Procedures Apply: Direct, Indirect, and Hybrid Contempt 58.28
      • 3. Substitution of Hearing Judge 58.29
      • 4. Challenge to Hearing Judge 58.30
      • 5. Affidavit, Court Order, and Personal Service for Indirect Contempt 58.31
      • 6. Hearing 58.32
      • 7. Timing of Order 58.33
      • 8. Written Order 58.34
      • 9. Mandatory Stay of Execution 58.35
    • B. Criminal Contempt 58.36
  • VI. PROCEDURAL CHECKLISTS FOR CIVIL CONTEMPT
    • A. Checklist: Direct Contempt 58.37
    • B. Checklist: Indirect Contempt 58.38
  • VII. REVIEW OF CONTEMPT ORDER 58.39
  • VIII. REPORT TO STATE BAR 58.40

New Developments in 2017

REFERENDA

Proposition 64 (Adut Use of Marijuana Act), passed by the voters on November 8, 2016, reduced several felony marijuana offenses down to misdemeanors, or repealed them entirely, and reduced several misdemeanor marijuana offenses down to infractions, or repealed them entirely. It also enacted Pen C §11361.8, permitting people whose conviction would have been for a lesser degree or lesser offense or no offense at all to petition or apply for a reduction and resentencing or dismissal. See chaps 37, 41.

Proposition 57 (Public Safety and Rehabilitation Act), passed by California voters in November 2016, added §32 to Article I of the California Constitution. It requires the California Department of Corrections and Rehabilitation (CDCR) to propound regulations that provide potentially earlier parole for inmates not convicted of a violent felony. The Proposition also requires the CDCR to draft regulations that allow prison inmates to earn additional nonstatutory credits against their sentences. These credits are seemingly not available to inmates housed in jails pursuant to the realignment statutes. The CDCR has yet to draft these regulations, but practitioners, probation officers, and the courts should be on the alert for them. See chaps 37, 47. Proposition 57 also amended Welf & I C §§602 and 707 to grant the juvenile court original jurisdiction over all offenders who are under age 18 at the time of offense, regardless of the crime. A judicial transfer hearing is required before any minor may be transferred to adult criminal court. See chap 56.

CALIFORNIA RULES OF COURT

Effective July 2016, opinions of the courts of appeal that have been granted review are no longer automatically depublished (Cal Rules of Ct 8.1105(e)(1)(B)) and may be cited, but only for their "potentially persuasive value," not as binding precedent (Cal Rules of Ct 8.1115(e)(1)), unless otherwise ordered by the California Supreme Court (Cal Rules of Ct 8.1105 and 8.1115(e)(2), (3)). Any citation to a court of appeal opinion while review is pending must note the grant of review and any subsequent action by the California Supreme Court (Cal Rules of Ct 8.1115(e)(1)). See chap 18.

CASE LAW

Right to counsel. Restrictions on the ability to use the phone to contact counsel, including on pretrial detainees, implicate the right to counsel. People v Clark (2016) 63 C4th 522.

The critical stages of a criminal proceeding, when the right to counsel attaches, include postconviction resentencing following a Pen C §1178.18 petition when the case involves more than one felony, so that the court has discretion to restructure the sentence on all counts. People v Rouse (2016) 245 CA4th 292. See chap 3.

Competent juvenile counsel. Only those attorneys who, during each of the most recent 3 calendar years, have dedicated at least 50 percent of their practice to juvenile delinquency and demonstrated competence or who have completed a minimum of 12 hours of training or education during the most recent 12-month period in the area of juvenile delinquency may be appointed to represent youth. Cal Rules of Ct 5.664(b)(1). See chap 56.

Confessions. Beginning January 1, 2017, Pen C §859.5 requires electronic recording of the entire custodial interrogation of any person suspected of committing murder. See chap 23.

Discovery. A Pitchess motion is not necessary for the defense to obtain in discovery the police dashboard camera video footage of an arrest. See City of Eureka v Superior Court (2016) 1 CA5th 755 and chap 11.

Proposition 47 and plea bargains. When a defendant seeks to have his or her sentenced recalled under Proposition 47 and the qualifying conviction was the result of a plea bargain, the prosecution may not set aside the plea bargain. Harris v Superior Court (2016) 1 C5th 984. See chap 35.

Peremptory challenges to trial judge. A district attorney office's blanket use of peremptory challenges (CCP §170.6) against a single judge, even in retaliation for the judge's order in a different case determining that the district attorney's office engaged in misconduct and even when it substantially disrupts court operations, does not violate separation of powers. People v Superior Court (Tejeda) (2016) 1 CA5th 892. See chap 21.

Special-circumstance juvenile priors. For use as a special circumstance, a prior out-of-state conviction for murder committed while the defendant was a juvenile need not meet California standards for trying a juvenile in adult court. People v Salazar (2016) 63 C4th 214. See chaps 24, 54.

Jury questionnaires in death cases. It is reversible error to discharge a prospective pro-life juror solely on the basis of his or her questionnaire answers. People v Covarrubias (2016) 1 C5th 838. See chap 54.

Evidence Code §352. The prejudice that exclusion of evidence under Evid C §352 is designed to avoid is not the damage to the defense that flows from relevant, highly probative evidence but instead refers to that evidence which tends to evoke an emotional bias against the defendant and has very little effect on the issues. People v Fruits (2016) 247 CA4th 188. See chap 24.

Evidence Code §1101(b). "If the connection between the uncharged offense and the ultimate fact in dispute is not clear, the evidence should be excluded." People v Williams (2017) 7 CA5th 644 (quoting People v Daniels (1991) 52 C3d 815, 855). See chap 24.

Evidence Code §1108. Other charged offenses in the current prosecution must be proved beyond a reasonable doubt before they can be used to show a propensity under Pen C §1108. People v Cruz (2016) 2 CA5th 1178. See chap 24.

Prior strike convictions. A court cannot find facts that were not determined by a jury or admitted by the defendant in a previous case in order to establish that a prior qualifies as a strike. People v Navarette (2016) 4 CA5th 829 (relying on Apprendi and Descamps). See chap 28.

Appeals and victims' rights. A victim is entitled to file a victim impact statement on appeal. Cal Const art I, §28, as amended by Marsy's Law in 2008. This does not, however, permit a victim to present legal issues that were not raised by the appellant or facts that were not in the record below. People v Hannon (2016) 5 CA5th 94. See chap 43.

Refiling after appeal and vindictive prosecution. The filing of new charges after an appellate court reversal raises a presumption of vindictiveness that the charges were filed in response to the defendant's appeal. The prosecution can overcome the presumption only by a strong, two-part showing. Johnson v Superior Court (2016) 4 CA5th 937. See chap 28.

Proposition 47 and mentally disordered offenders (MDOs). The subsequent reduction of the underlying commitment felony to a misdemeanor under Proposition 47 does not act to retroactively change an MDO's initial commitment, and the only things that must be established at a recommitment hearing are that the patient has a severe mental disorder that is not in remission or that cannot be kept in remission without treatment and that, as a result, the patient represents a substantial danger of physical harm to others. People v Goodrich (2017) 7 CA5th 699. See chap 48.

Proposition 47 and disqualifying strike priors. A prior conviction making a person ineligible for Proposition 47 relief on a current qualifying offense need not have occurred prior in time to the qualifying offense as long as the conviction occurred prior in time to the court's ruling on the petition for resentencing or application for redesignation. People v Walker (2016) 5 CA5th 872. See chap 35.

Revocation of postrelease community supervision (PRCS). The Postrelease Community Supervision Act of 2011 (Pen C §§3450—3465) does not include a definition of residence. As a result, the court in People v Gonzalez (2017) 7 CA5th 370 turned to the broad definition in the Sex Offender Registration Act (Pen C §§290—294) and concluded that since the defendant was homeless, he had neither a residence nor a change of residence to report. A person subject to PRCS, however, whether or not homeless, has an obligation under Pen C §3453(e) "to report as directed" by the supervising county agency. See chap 47.

Juvenile offenders and life without the possibility of parole (LWOP). California's youth offender parole hearings (Pen C §3051) process satisfies the prohibition in Miller v Alabama (2012) ___ US ___, 132 S Ct 2455, against mandatory life imprisonment for juvenile offenders. People v Franklin (2016) 63 C4th 261. See chap 56.

Youth offender parole hearings. Penal Code §3051(a)(1) defines a "youth offender parole hearing" as a parole suitability hearing for any person who was under 23 years of age at the time of his or her controlling offense. The hearing must provide "a meaningful opportunity for release." People v Garett (2017) 7 CA5th 871. The controlling offense is defined as the "offense or enhancement for which any sentencing court imposed the longest term of imprisonment." Pen C §3051(a)(2)(B). See chaps 47, 56.

Habeas relief for newly discovered evidence. Newly enacted Pen C §1473(b)(3)(A) lowered the standard of proof for newly discovered evidence required to obtain habeas relief, and the newly lowered standard of proof is applicable for all defendants whose petitions were pending when the law was passed. In re Miles (2016) 7 CA5th 821. See chap 42.

About the Authors

Jeffrey G. Adachi, A.B., 1981, University of California, Berkeley; J.D., 1985, University of California, Hastings College of the Law. Mr. Adachi is the Public Defender for the City and County of San Francisco and a certified criminal law specialist. He and Garrick S. Lew coauthored Immunity for Testimony (Chapter 49) for the first edition and have updated it for each subsequent edition.

Michael Begovich, B.A., 1981, University of California, Davis (summa cum laude; Phi Beta Kappa); J.D., 1985, University of California, Hastings College of the Law. Mr. Begovich is the Deputy Director of the San Diego County Office of Assigned Counsel, one of the largest conflict panel programs for indigent criminal defendants in California. Before that appointment, he worked for over 20 years as a Deputy Public Defender and has approximately 190 total trials in his career. Mr. Begovich represented over 30 clients accused of murder and was an Assistant Felony Supervisor. Before joining the San Diego Public Defender's Office, he worked in an AV-rated civil law firm and in the San Diego County District Attorney's Office. Mr. Begovich has taught criminal law, evidence, legal writing, and trial practice courses since June 1990. He is an Adjunct Professor of Law at Thomas Jefferson School of Law, presently teaching Trial Practice and Advanced Trial Advocacy. Professor Begovich's academic interests focus on persuasive methods of courtroom advocacy, jury selection, and legal ethics. Mr. Begovich received the 2009 "Spirit of CEB" Award recognizing his selfless sharing of information for the betterment of the legal profession. He has published articles relating to trial publicity and voir dire, and he provides ongoing MCLE training for the State Bar, the San Diego County Bar, and the Public Defender's Office. Mr. Begovich has an AV-rating from Martindale-Hubbell, and his biography appears in Marquis Who's Who in America. He was Chair of the State Bar's Criminal Law Section Executive Committee, and he is presently an adviser. He is the author of Jury Selection (Chapter 29) and has updated that chapter since 2005. In addition, he authored Jury Selection (Chapter 29) in California Criminal Law Forms Manual (2d ed Cal CEB); Preparing and Presenting Expert Testimony on Scientific Evidence (Chapter 3) in Scientific Evidence in California Criminal Cases (Cal CEB); and Property Loss, Money Laundering, and Fraud (Chapter 12) and Felony Committed While Released on Bail or Own Recognizance (Chapter 14) in California Criminal Sentencing Enhancements (Cal CEB).

Christine Bergman, B.A., 1993, California State University, Fullerton; J.D., 2002, Thomas Jefferson School of Law. Ms. Bergman is a Deputy Attorney General for the Office of the California Attorney General, working in the Appeals, Writs and Trials Section of the Criminal Law Division of the San Diego office. She is the update author of Probation and Mandatory Supervision (Chapter 38).

Myles L. Berman, B.A., 1976, University of Illinois (Urbana-Champaign); J.D., 1979, Chicago Kent College of Law. Mr. Berman, known as Southern California's "Topgun DUI Defense Attorney®," is the principal of a DUI/criminal defense firm with offices in Los Angeles, Orange, and Ventura counties. Having a national reputation for successfully representing clients charged with driving under the influence, Mr. Berman has lectured extensively in the area of DUI defense at local, state, and national programs. He is listed in Who's Who in California, Who's Who in American Law, and Who's Who in the World. Mr. Berman has updated Driving Under the Influence Cases (Chapter 55) since the third edition.

Hon. Joseph A. Brandolino, B.S., 1983, Providence College (summa cum laude); J.D., 1986, Harvard Law School. Judge Brandolino is a superior court judge in Los Angeles County, presiding over criminal cases. Before his 2000 appointment to the bench, he spent 10 years as an Assistant United States Attorney in Los Angeles. Judge Brandolino is a faculty member of the B.E. Witkin Judicial College of California. He revised Confessions and Admissions (Chapter 23) in 2007 and has updated it since 2008.

Hon. Matthew C. Braner, B.A., 1981, University of California, Berkeley; J.D., 1985, University of California, Hastings College of the Law. Mr. Braner was a Deputy Public Defender in San Diego from 1989 until 2014, when he was appointed to the bench of the San Diego County Superior Court. He coauthored the 2006 revision of Felony Sentencing (Chapter 37) with Gary R. Nichols and has updated it since.

Edward J. Bronson, B.S., 1957, and J.D., 1959, Denver University; LL.M., 1961, New York University; Ph.D., 1972, University of Colorado. Dr. Bronson is professor emeritus of political science at California State University, Chico. He has testified on numerous occasions as an expert on the impact of pretrial publicity and on venue issues. He coauthored Pretrial and Trial Publicity; Access to Courts and Court Files (Chapter 14) and Change of Venue (Chapter 15) with John T. Philipsborn. Dr. Bronson is the lead author on Chapter 15. Dr. Bronson and Mr. Philipsborn began updating these chapters for the third edition and have continued to update them for each subsequent edition.

Garrick A. Byers, B.A.L.S., 1976, Sonoma State College; J.D., 1979, Antioch School of Law. Mr. Byers, a certified specialist in criminal law since 1990, is a Special Assignments Attorney with the Contra Costa County Office of the Public Defender. He was with the Fresno County Public Defender's Office from 1983 to 2012; his last position there was Senior Defense Attorney. He is Second Vice President of the California Public Defenders Association (CPDA), the Chair of the CPDA Ethics Committee, and a member of the CPDA Legislative Committee. Mr. Byers received a Special Recognition Award in 2012 from the CPDA for his many contributions, including authorship of "Realignment" (published electronically by the CPDA since 1999). He is a frequent organizer and speaker at MCLE events. Mr. Byers is the update author of Public Records (Chapter 12), Motion to Disclose Informant's Identity (Chapter 17), and Trial Counsel's Duties After Judgment; Cleansing and Sealing of Criminal Records (Chapter 41). He coauthored Chapter 41 for the second edition with Celia E. Rowland and has continued to update it for each subsequent edition.

Teresa Caffese, B.A., 1982, University of California, Berkeley; J.D., 1985, University of California, Hastings College of the Law. Before opening her own private criminal litigation practice in San Francisco in 2011, Ms. Caffese spent 23 years with the San Francisco Public Defender's Office, where she was the first woman to serve as Chief Attorney in the 87-year history of the office. Ms. Caffese serves on criminal law advisory committees for the San Francisco Bar Association and the California Bar Association. She has been selected as one of the Top Women Litigators by the Los Angeles Daily Journal for 2008, 2010, and 2011. She was selected for the 2012 Northern California Super Lawyers list and was listed among the Top Women Attorneys in Northern California. In March 2012, Ms. Caffese was inducted as a fellow into the American College of Trial Lawyers—a premier professional trial organization composed of the best of the trial bar from the United States and Canada. She is an Adjunct Professor at Golden Gate School of Law, where she teaches Trial Advocacy and Criminal Litigation. She is the update author of Discovery (Chapter 11).

Elena Condes, B.S., 1989, University of Arizona; J.D., 1992, Golden Gate University School of Law. Ms. Condes is a criminal defense attorney in private practice in Berkeley. She is the update author of Arraignment (Chapter 6).

James P. Cooper III, B.A., 1983, University of California, Los Angeles; J.D., 1986, University of California, Los Angeles, School of Law. Mr. Cooper is a sole practitioner in Los Angeles County. He updated Prior Convictions and Uncharged Misconduct (Chapter 24) with Brent Riggs. He and Mr. Riggs have updated this chapter since the fourth edition.

Tia M. Coronado, B.A., 1998, California State University, Sacramento; Teaching Credential, 2000, California State University, Sacramento; J.D., 2007, University of the Pacific, McGeorge School of Law. Ms. Coronado has been a Deputy Attorney General in the Appeals, Writs, and Trials division of the California Office of the Attorney General (Sacramento) since 2007. She is a member of the National Association of Extradition Officials. Ms. Coronado is the update author of Extradition (Chapter 50).

Jason M. Cox, A.B., 1979, University of Arizona; J.D., 1986, University of California, Berkeley, School of Law. Mr. Cox is a criminal defense attorney in private practice in Albany. He is a frequent speaker at continuing education events, including the annual Capital Case Defense Seminar sponsored by California Attorneys for Criminal Justice and the California Public Defenders Association. Mr. Cox is the update author of Pleadings; Joinder and Severance (Chapter 7) and Confessions and Admissions (Chapter 23).

Alan J. Crivaro, B.A., 1977, University of Southern California; J.D., 1980, Ahmanson Law Center, Creighton University. Mr. Crivaro is in private practice in Newport Beach, focusing on criminal litigation and motion practice. For more than 28 years, he served as a Senior Deputy Public Defender for Orange County, where he had appellate and trial counsel assignments. He has served on the Board of Directors for the Orange County Bar Association and is a past chair as well as current member of its Administration of Justice Committee. He is a founding member of the Orange County Bar Association's Criminal Law Section and is a recipient of the prestigious OCBA Scoville Award. He is a past president of the Constitutional Rights Foundation of Orange County, the William P. Gray Legion Lex American Inn of Court, and the Orange County Bar Foundation. Mr. Crivaro is a frequent lecturer on various topics related to criminal law, procedure, and evidence. He updated Criminal Law Practice Management (Chapter 1), Client Interview (Chapter 10), and Selected Trial Motions (Chapter 31) with E. Thomas Dunn, Jr.

Allen R. Crown, A.B., 1969, University of California, Berkeley; J.D., 1973, University of California, Davis, School of Law. Mr. Crown is a Deputy Attorney General for the State of California in the criminal division. He updated Writs in California State Courts (Chapter 42) with Jonathan Grossman for the 2012 edition.

Derek A. Danielson, J.D., 1974, University of Western Ontario School of Law. Having tried hundreds of drunk driving cases, Mr. Danielson lectures in the field of DUI defense. He is the past chair of the Criminal Law Section of the Century City Bar Association and a past member of its Board of Governors. He is a past certified specialist by the California Deuce Defenders and a past member of the National Association of Criminal Defense Lawyers and Criminal Lawyers Association (Canada), among other associations and bar groups. Mr. Danielson has updated the Driving Under the Influence Cases (Chapter 55) since the fifth edition.

E. Thomas Dunn, Jr., B.A., 1977, Biola University; J.D., 1984, Southwestern University School of Law. Mr. Dunn is in private practice in Tustin and focuses primarily on criminal law and motion matters, writs, and appeals. He has practiced civil rights defense in state and federal courts as an associate with Manning & Marder, Kass, Ellrod, Ramirez in Los Angeles and served as lead appellate attorney in the chambers of William W. Bedsworth at the California Court of Appeal for 4 years. Mr. Dunn was a Senior Deputy District Attorney for Orange County from 1985 to 1997 and served for 2 years as a Deputy Attorney General of the State of California. Since 1991, he has taught as an adjunct professor of Law at Western State University College of Law, Trinity Law School, and Whittier Law School and as an associate professor at Orange County University School of Law. Formerly, he served on the staff of the House of Representatives Committee on Rules in Washington, D.C., and was named Attorney of the Year by the Constitutional Rights Foundation of Orange County. He is a certified specialist in both criminal and appellate law. Mr. Dunn updated Criminal Law Practice Management (Chapter 1), Client Interview (Chapter 10), and Selected Trial Motions (Chapter 31) with Alan J. Crivaro.

Bryan Edelman, B.A., 1997, Florida State University; LL.M., 2004, University of Kent (Canterbury); Ph.D., 2003, University of Nevada (Reno). Mr. Edelman is a trial consultant at Trial Innovations, a full-service firm located in Northern California. He has experience working in venues across the country on both civil and criminal matters. Mr. Edelman has also published his research on issues as varied as the impact of race on sentencing in capital cases and the effect of graphic injury photographs on perceptions of liability in civil cases. He updated Change of Venue (Chapter 15) with Edward J. Bronson and John T. Philipsborn.

Douglas S. Feinberg, B.A., 1991, University of California, Santa Cruz; J.D., 1994, California Western School of Law. Mr. Feinberg has been a defense attorney for the Fresno County Public Defender's Office since 1995. He is a certified criminal law specialist. He coauthored the revision of Juvenile Delinquency Proceedings (Chapter 56) with Jonathan Laba in 2006 and has updated the chapter with Mr. Laba since.

Brentford J. Ferreira, A.B., 1975, Cornell University; J.D., 1983, Loyola Law School (Los Angeles). Mr. Ferreira is the Deputy-in-Charge of the Habeas Corpus Litigation Unit of the Los Angeles County District Attorney's Office. He updated Lineups and Identification (Chapter 22) and Misdemeanor Appeals (Chapter 43) with Douglas W. Otto.

Gary Gibson, B.A., 1984, State University of New York at Stony Brook (cum laude); J.D., 1991, California Western School of Law (magna cum laude). Mr. Gibson has been a Deputy Public Defender for San Diego County since 1991. He is an adjunct professor at California Western School of Law, where he teaches California Evidence, California Sentencing, and Advanced Criminal Litigation. He is a former member of Army and Marine Corps Special Operations Forces and has served as an Army and Navy enlisted man and as a Naval Intelligence Officer. Mr. Gibson has been the update author for Preliminary Hearings (Chapter 8) since 2006.

Dmitry Gorin, B.A., 1992, University of California, Los Angeles (magna cum laude); J.D., 1995, University of California, Los Angeles, School of Law. Mr. Gorin is a partner in Kestenbaum, Eisner & Gorin LLP, a law firm devoted exclusively to criminal defense work. Mr. Gorin is a former Senior Deputy District Attorney for Los Angeles County. He is also an adjunct professor at Pepperdine University School of Law and a lecturer and visiting professor at the UCLA Speech and Communications Department. Mr. Gorin has updated Grand Jury (Chapter 9) since 2004.

Jonathan Grossman, B.A., 1988, University of California, Berkeley; J.D., 1991, University of California, Hastings College of the Law. Mr. Grossman was a Deputy Public Defender in San Joaquin County and is currently a staff attorney with the Sixth District Appellate Program. He updated Writs in California State Courts (Chapter 42) with Allen R. Crown and is the update author for Felony Appeals (Chapter 44).

Susan Horst, B.A., 1969, Stanford University; J.D., 1976, University of Santa Clara School of Law. Ms. Horst served as a writ attorney at the Court of Appeal, First Appellate District, in San Francisco for over 31 years. She is currently in private practice in San Francisco and is of counsel with California Appellate Law Group. She is a former Assistant District Attorney for the City and County of San Francisco and is a frequent lecturer on writ practice. Ms. Horst updated Termination of Prosecution Without Judgment (Chapter 25) with James A. Lassart.

David Hurd, B.A., 1976, University of California, Davis; J.D., 1979, University of the Pacific, McGeorge School of Law. Mr. Hurd conducted more than 700 life prisoner suitability hearings and more than 1500 parole revocation and parole revocation extension hearings before the Board of Prison Terms. He is currently employed as an Administrative Law Judge with the Board of Parole Hearings. Along with Dylan Sullivan, Mr. Hurd has updated Parole Hearings (Chapter 47) since 2005.

Hon. Richard Keller, B.A., 1964, Emory University; J.D., 1967, Emory Law School. Judge Keller was appointed to the Municipal Court for the Fremont-Newark-Union City Judicial District in 1996 and became an Alameda County Superior Court judge in 1998. He has updated Work Furlough and Other Alternative Sentences (Chapter 39) since 2006.

Kimberly Kupferer, B.A., 1983, Stanford University; J.D., 1987, Santa Clara University Law School. Ms. Kupferer is a private criminal defense lawyer in Berkeley, specializing in homicide and other serious offenses. She was an Assistant Public Defender in Alameda County for 15 years. She was chair of the Criminal Law Section of the California State Bar from 2004 to 2005; was on the executive committee of the Criminal Law Section from 2000 to 2005; and was president of Women Defenders from 1999 to 2001. She was also voted Outstanding Woman Law Student at Santa Clara University in 1987. Ms. Kupferer has updated Advising Witnesses (Chapter 51) since 2004.

Jonathan Laba, B.A., 1989, University of Virginia; J.D., 1996, University of California, Berkeley, School of Law. Mr. Laba has been a Deputy Public Defender in the Contra Costa County Office of the Public Defender since 1996. He serves on the Board of Directors of the Pacific Juvenile Defender Center and moderates a statewide listserv concerning juvenile justice and youth prison issues. Mr. Laba is a member of the California Public Defenders Association, California Attorneys for Criminal Justice, and the California Association of Drug Court Professionals. He coauthored the revision of Juvenile Delinquency Proceedings (Chapter 56) with Douglas S. Feinberg in 2006 and has updated the chapter with Mr. Feinberg since.

James P. Lambe, A.B., 1974, University of Michigan; J.D., 1977, University of Illinois. Before entering private practice, Mr. Lambe spent 28 years with the Fresno County Public Defender's Office, where he was a Senior Defense Attorney. He is a Certified Specialist in both Criminal Law and Criminal Trial Advocacy. A Fellow of the Litigation Counsel of America, he is listed in Who's Who in American Law and Who's Who in America. In 2006, he became the first public defender from the San Joaquin Valley to be listed in Super Lawyers. He has served on the State Bar of California Criminal Law Advisory Commission, the State Bar of California Criminal Law Section Executive Committee, and the Board of Governors of California Attorneys for Criminal Justice. He updated Jury Deliberations and Verdict (Chapter 33) for the 1998 edition and Right to Speedy Trial (Chapter 19) for the 2013 edition and has updated both for each subsequent edition.

Christopher Lamiero, B.A., 1989, California State University, Hayward; J.D., 1993, University of San Francisco School of Law. Mr. Lamiero has been a Deputy District Attorney in the Alameda County District Attorney's Office since 1993. Along with Romany E. McNamara, he is the update author of Selected Pretrial Motions (Chapter 18).

Alex Landon, B.A., 1968, California State University, Northridge; J.D., 1971, University of San Diego School of Law. Mr. Landon, a certified specialist in criminal law, is in private practice in San Diego. He has been an adjunct professor at the University of San Diego School of Law since 1984. He is a past president of California Attorneys for Criminal Justice and the San Diego Criminal Defense Bar Association. Mr. Landon chaired the State Bar Commission on the Delivery of Legal Services to the Indigent Accused from 1991 to 2000. He coauthored Disqualification of Judge (Chapter 21) for the second edition and has updated it for each subsequent edition.

James A. Lassart, B.A., 1964, University of Santa Clara; J.D., 1967, University of San Francisco School of Law. Mr. Lassart is a partner at Murphy, Pearson, Bradley & Feeney, with a practice that includes criminal defense. He is a former Assistant U.S. Attorney and Coordinator of the Northwest Region of the President's Organized Crime Drug Enforcement Task Force, and he served for 12 years as an Assistant District Attorney for the City and County of San Francisco. Mr. Lassart updated Termination of Prosecution Without Judgment (Chapter 25) with Susan Horst.

Garrick S. Lew, A.B., 1971, and J.D., 1974, University of California, Berkeley, School of Law. Mr. Lew is the managing partner in the law firm of Minami, Lew & Tamaki, San Francisco. He was chair of the executive committee of the State Bar Criminal Law Section from 1986 to 1987 and a member of the Board of Governors of California Attorneys for Criminal Justice from 1978 to 1988. Mr. Lew and Jeffrey G. Adachi coauthored Immunity for Testimony (Chapter 49) for the first edition and have updated it for each subsequent edition.

Graciela Martinez, A.B., 1989, Stanford University; J.D., 1992, University of California, Berkeley, School of Law. Ms. Martinez is a Deputy Public Defender in the Los Angeles County Public Defender's Office assigned to the Appellate Branch. She has been a criminal defense lawyer for over 20 years. She consults with and advises attorneys both in her office and throughout California on issues relating to criminal convictions and the resultant immigration penalties. Ms. Martinez updated Representing the Noncitizen Criminal Defendant (Chapter 52) with Michael Mehr.

Michael McCormick, A.B., 1973, University of California, Berkeley; J.D., 1977, University of California, Hastings College of the Law. Mr. McCormick retired from his position as an Assistant Public Defender in the Alameda County Public Defender's Office, where he worked for over 30 years and was a member of its law and motion team. He is now in private practice, specializing in motions and appeals for criminal defendants. Mr. McCormick is the update author of Motion to Set Aside Information or Indictment (Chapter 13) and Contempt (Chapter 58) and has updated these chapters since the fourth edition.

Michael C. McMahon, B.A., 1972, University of California, Berkeley; J.D., 1976, University of California, Hastings College of the Law. Mr. McMahon is Chief Deputy Public Defender in Ventura County, in charge of Appeals, Writs, and Training. He is a past president of the California Public Defenders Association and a longtime member of its board of directors. He is certified as a specialist in appellate law by the State Bar of California. Mr. McMahon is a member of the Adjunct Faculty of the Santa Barbara College of Law and the Ventura College of Law, where he teaches criminal law, advanced evidence, and trial practice. He is the update author of Jury Instructions (Chapter 32).

Romany E. McNamara, B.A., 2002, University of Washington (with honors); J.D., 2006, New York University School of Law (recipient of the Ann Petluck Poses Memorial Prize for excellence in clinical work). Ms. McNamara is the update author of Selected Pretrial Motions (Chapter 18) with Christopher Lamiero. She is a Deputy Public Defender for Alameda County.

Michael K. Mehr, B.A., 1973, University of California, Santa Cruz (with honors); J.D., 1976, University of San Francisco School of Law. Mr. Mehr is a private attorney in Santa Cruz County who has practiced immigration and criminal law since 1979, including deportation defense and postconviction relief. He is a coauthor of Defending Immigrants in the Ninth Circuit: Impact of Crimes under California and Other State Laws, by Katherine A. Brady with Norton Tooby and Angie Junck (9th ed 2007 ILRC). He is a frequent lecturer at MCLE programs and was the expert witness in People v Bautista (2004) 115 CA4th 229, which held that failure to defend against immigration consequences may be ineffective assistance of counsel. Mr. Mehr updated Representing the Noncitizen Criminal Defendant (Chapter 52) with Graciela Martinez.

Lindsey B. Mercer, B.A., 1999, University of California, Berkeley; J.D., 2005, University of San Diego School of Law. In law school, Ms. Mercer served as Chair of the Appellate Moot Court Board and competed on the University of San Diego Moot Court National Team. In recognition of her commitment to outstanding legal advocacy, she was inducted into the Order of the Barrister in 2005. Ms. Mercer practices criminal defense as an associate with the Law Offices of C. Bradley Patton. Along with C. Bradley Patton, she has been an update author of Arrest and Bench Warrants, Summonses, Subpoenas (Chapter 4) since 2007.

Michael Ogul, B.A., 1977, University of Southern California; J.D., 1980, University of California, Hastings College of the Law. Mr. Ogul is a Deputy Public Defender in Santa Clara County, where he represents individuals in murder and death penalty cases and supervises the homicide team and training program. He has published over 200 articles on various criminal law topics, including numerous articles on death penalty law, and has been a consultant to every edition of the CJER Death Penalty Benchguide in addition to being the editor of the California Death Penalty Defense Manual since 2004. Mr. Ogul is the update author of Death Penalty Cases (Chapter 54).

Douglas W. Otto, B.A., 1971, Stanford University; M.A., 1974, Columbia University/Union Theological Seminary; J.D., 1977, University of Chicago. Mr. Otto has a private practice with an emphasis in criminal defense trials and appeals and administrative law. He is an adjunct professor of law at Southwestern University School of Law. Mr. Otto updated Lineups and Identification (Chapter 22) and Misdemeanor Appeals (Chapter 43) with Brentford J. Ferreira.

Anthony J. Patti, B.A., 1974, Adelphi University; J.D., 1977, University of San Fernando Valley. In 2014, Mr. Patti retired from the Los Angeles County Public Defender's Office and is now a criminal defense attorney in private practice in Los Angeles. He is a member of the National Association of Criminal Defense Lawyers and the California Public Defenders Association. Mr. Patti is the update author of Pleas and Case Settlement (Chapter 26).

C. Bradley Patton, B.S., 1972, University of Southern California; J.D., 1975, California Western School of Law. Mr. Patton is a sole practitioner in Carlsbad, primarily handling criminal defense. He is certified by the State Bar as a criminal law specialist. Mr. Patton is the author of Right to Counsel; The Attorney-Client Relationship (Chapter 3); he coauthored this chapter for the second edition and has updated it for each subsequent edition. He also has updated Arrest and Bench Warrants, Summonses, Subpoenas (Chapter 4) since 2007 with Lindsey B. Mercer.

Sanders Patton, B.S., 2005, University of Southern California; J.D., 2009, Thomas Jefferson School of Law. Mr. Patton is an attorney with the Law Offices of C. Bradley Patton in Carlsbad, primarily handling criminal defense. He is an update author of Right to Counsel; The Attorney-Client Relationship (Chapter 3) with C. Bradley Patton.

John T. Philipsborn, A.B., 1971, Bowdoin College; M.Ed., 1975, Antioch College; J.D., 1978, University of California, Davis, School of Law; MAS, 2016, University of California, Irvine. Mr. Philipsborn practices criminal defense in San Francisco. He is a frequent author and lecturer on criminal law issues and a member of CEB's criminal law advisory group. Mr. Philipsborn is an update author of Pretrial and Trial Publicity; Access to Courts and Court Files (Chapter 14), Change of Venue (Chapter 15), and Forensic Mental Health Evidence, Laws and Procedures (Chapter 48). He and Edward J. Bronson have updated Chapters 14 and 15 since the third edition. Mr. Philipsborn has updated Chapter 48 since 2005.

Hon. Gregg L. Prickett, B.A., 1978, University of Southern California; J.D., 1981, Southwestern University School of Law. Judge Prickett was a Deputy and Senior Deputy District Attorney for Orange County from 1983 to 1995, when he was appointed to the North Orange County Municipal Court and then elevated in 1999 to the Orange County Superior Court. He has been the update author of Pronouncing Judgment (Chapter 35) since 2008.

Brent Riggs, S.B., 1966, Brigham Young University; J.D., 1969, University of Chicago School of Law. Mr. Riggs was a Deputy District Attorney in the Los Angeles County District Attorney's Office from 1975 to 2005, retiring from the Appellate Division. He is now in private practice in Los Angeles, specializing in criminal appeals. Mr. Riggs updated Prior Convictions and Uncharged Misconduct (Chapter 24) with James P. Cooper III. He coauthored that chapter with Kathy M. Chavez for the second and third editions and has updated it for each subsequent edition.

Michael P. Running, Jr., B.A., 1986, University of California, Los Angeles; J.D., 1989, Arizona State University College of Law (Pace University School of Law National Environmental Moot Court Champion). Mr. Running is a Deputy District Attorney with the San Diego District Attorney's Office. He is the update author of Asset Forfeiture (Chapter 57).

Adam B. Ryan, B.S., 1993, California State University, Chico,; J.D., 1996, Golden Gate University School of Law. Mr. Ryan is in private practice in Redding. He is a member of California Attorneys for Criminal Justice and the California Public Defenders Association. He also serves on the State Bar of California Criminal Law Section Executive Committee. Mr. Ryan is the update author of Deferred Entry of Judgment, Diversion, and Preplea Probation Report (Chapter 27) with Terry L. White.

Hon. Teresa Sanchez-Gordon, B.A., 1973, Immaculate Heart College; J.D., 1984, People's College of Law. Judge Sanchez-Gordon is a superior court judge in Los Angeles County. She has updated Misdemeanor Sentencing (Chapter 36) since the sixth edition.

Antonio R. Sarabia II, A.B., 1974, Occidental College; J.D., 1978, University of Chicago Law School. Mr. Sarabia's private practice in Rolling Hills Estates includes victims' rights, representation of white collar crime victims, trademarks, copyrights, licensing, the apparel industry, and business transactions. He is the author of Victim Restitution (Chapter 40); he wrote this chapter for the fifth edition and has revised it for each subsequent edition.

Adam G. Slote, B.A., 1985, University of Pennsylvania; J.D., 1988, University of California, Hastings College of the Law. Mr. Slote is in private practice in San Francisco. He defends licensed businesses and professionals before administrative agencies. Mr. Slote is the update author of Effect of Criminal Conviction on Professional Licenses (Chapter 53).

Niki Solis, B.A., 1991, San Francisco State University (cum laude); J.D., 1995, University of California, Hastings College of the Law. Ms. Solis is a Deputy Public Defender in San Francisco and serves as a commissioner for the State Bar of California Criminal Law Advisory Committee. She is the update author of Trial by Court or Jury (Chapter 28).

Lori S. Stuart, B.A., 1996, Westmont College; J.D., 1999, Pepperdine University School of Law (cum laude). Ms. Stuart is a Deputy Public Defender for the Santa Clara County Public Defender Office, currently working in the Research, Law, and Motion department of the San Jose office. She is the update author of Securing or Preventing Out-of-Custody Status (Chapter 5).

Hon. Dylan Sullivan, B.S., 1988, University of California, Davis,; J.D., 1997, University of the Pacific, McGeorge School of Law. From 2000 until 2005, Ms. Sullivan had a private practice in Sacramento, which included criminal law, parole law, and civil litigation. In 2005, she joined the Board of Parole Hearings as a Deputy Commissioner, and in September 2011, she was appointed as a Commissioner of El Dorado County. In September 2014, Ms. Sullivan took office as a judge of the Superior Court in El Dorado County, after being both elected and appointed by the Governor. Along with David Hurd, she has updated Parole Hearings (Chapter 47) since 2005.

Carlie Ware, B.A., 2000, Yale University; J.D., 2003, University of California, Berkeley, School of Law. Ms. Ware is a Deputy Public Defender in Santa Clara County. She is a former Marvin Karpatkin Racial Justice Fellow (2005—2006) and staff attorney (2006—2009) with the national American Civil Liberties Union (ACLU). She was awarded the 2004 Relman Civil Rights Fellowship at Relman, Dane & Colfax in Washington, D.C., after serving from 2003 to 2004 as a law clerk to Judge Claudia Wilken in the United States District Court for the Northern District of California, Oakland. Ms. Ware is the 2017 update author of Search and Seizure Motions (Chapter 16).

Timothy E. Warriner, B.S., 1989, University of California, Los Angeles; J.D., 1993, Santa Clara University School of Law. Mr. Warriner is certified by the California Board of Legal Specialization of the State Bar of California as a criminal law specialist. He is a member of the Executive Committee of the State Bar's Criminal Law Section and is co-chairman of the E-Bulletin subcommittee. Mr. Warriner is a member of the Anthony M. Kennedy American Inn of Court. As an attorney in private practice, he handles trial and appellate matters in state and federal court. He is the update author of Revocation of Probation and Mandatory Supervision (Chapter 46) and, since the 2017 edition, Prejudgment Motions (Chapter 34).

Terry L. White, B.S., 1979, San Jose State University; J.D., 1983, University of California, Los Angeles, School of Law. Mr. White served as a Deputy District Attorney for Los Angeles County for 24 years and is presently the Chief Deputy of the Criminal Division in the Santa Monica City Attorney's Office. He is the update author of Deferred Entry of Judgment, Diversion, and Preplea Probation Report (Chapter 27) with Adam B. Ryan.

Carolyn M. Wiggin, B.A., 1990, University of California, Berkeley; J.D., 1994, Yale University School of Law. Ms. Wiggin is an Assistant Federal Defender in the Office of the Federal Public Defender in Sacramento, where she handles appeals and represents state prisoners in federal habeas corpus proceedings. She is the update author of Federal Habeas Corpus Review of State Court Convictions (Chapter 45).

Brendon D. Woods, B.A., 1992, University of California, Santa Barbara; J.D., 1996, University of San Francisco School of Law. Mr. Woods is the Public Defender for Alameda County and is a member of the California Public Defenders Association. He is the update author of Preparation and Presentation of Case and Argument (Chapter 30) with Judge Morris Jacobson.

William Woods, B.A., 1973, San Diego State University; J.D., 1985, Southwestern University School of Law. Mr. Woods retired in September 2016 after 30 years as a Los Angeles County Deputy District Attorney, where he was most recently the Assistant Head Deputy of the Training Division and Chair of the Professional Responsibility Committee. He continues to lecture to prosecutors, attorneys, and law enforcement officers across California about ethics issues. He was a member of the State Bar of California Committee on Professional Responsibility and Conduct. Mr. Woods has updated Professional Responsibility (Chapter 2) since 2009.

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