CEB Contributor
Paul Myslin
Content Attorney at Continuing Education of the Bar (CEB)
Paul Myslin is a Content Attorney at Continuing Education of the Bar, a non-profit organization that is part of UCLA Extension. His primary focus is on criminal law and evidence publications, including “California Criminal Law Procedure and Practice,” “California Criminal Sentencing Enhancements,” “Jefferson's Evidence Benchbook,” “Criminal Law Forms Manual,” Fee Agreements Forms Manual,” “Effective Introduction of Evidence,” and several others. Mr. Myslin also authors content for DailyNews consisting of articles on recent legal developments in the practice of criminal law.
Mr. Myslin earned his J.D. from the University of California San Francisco School of Law in 2001. Prior to that, he earned a Bachelor's degree in English at University of California, Berkeley. Mr. Myslin worked as a trial attorney in the San Francisco Public Defender's Office for 16 years. He also worked with the Innocence Project in collaboration with Golden Gate University and Santa Clara University School of Law.
Mr. Myslin has published numerous current awareness articles on the CEB DailyNews platform. He is a member of the California Lawyer's Association, and has served as the CEB Liaison to the Criminal Law Executive Committee of the CLA. Mr. Myslin has also been a presenter at the CLA on the subject of bail reform.
CEB Region:
Bay Area RegionPractice Areas:
Criminal Law
Content by Paul Myslin
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Fourth District Finds Forcibly Cutting Off Someone’s Hair Is Not a Robbery
October 23, 2026
Paul Myslin
Criminal Law, Litigation Practice & Procedure, Appeals
A rather unusual factual scenario in California's Fourth District Court of Appeal recently raised the question of whether cutting off a person’s hair (or other attached part of their body) constitutes a robbery under the elements of that crime.
Fifth District Court of Appeal Tackles Noneconomic Restitution
October 2, 2026
Paul Myslin
Appellate Law, Criminal Law
In a recent opinion, California's Fifth District Court of Appeal
California Courts Are Probing the Finer Points of Perkins Operations
September 11, 2026
Paul Myslin
Appellate Law, Criminal Law
A pair of recent cases in the Fourth District Court of Appeal – one of which is under review by the California Supreme Court – indicates that courts in the Golden State are refining how they evaluate
California Supreme Court Explains When Attorneys Can Strike a Juror Based on Behavior
August 21, 2026
Paul Myslin
Criminal Law
A
Fourth District Explains Pretrial Detention Requirements for Violent Felonies
July 31, 2026
Paul Myslin
Constitutional Law, Criminal Law
Bail continues to be a hot topic in the practice of criminal law in California. The state Supreme Court's recent opinion in
SCOTUS Adds Fourth Amendment Protection to Cell Phone Location History Obtained Via 'Geofence' Warrant
July 10, 2026
Paul Myslin
Constitutional Law, Criminal Law, Privacy & Information Security
On June 29, a deeply divided Supreme Court declared in
California Supreme Court Overrules Its 1977 Decision in Solberg, Blasting Bad Faith 'Blanket' Bench Challenges
June 22, 2026
Paul Myslin
Criminal Law, Litigation Practice & Procedure
In a recent
First District Holds the Constitution Limits Judicial Authority Courts Can Delegate to Probation Department
June 5, 2026
Paul Myslin
Appellate Law, Constitutional Law, Criminal Law
Guided by Penal Code section 1203 et seq., California courts commonly grant probation in lieu of confinement, setting out such terms as deemed appropriate. Formal probation is usually supervised by a county probation department, ensuring that the court’s conditions are followed, and reporting to the court periodically on the defendant’s compliance. The probation department may also file a motion to modify or revoke probation, and compel the defendant’s attendance at a court hearing to determine whether a violation occurred. Most of this process is handled by the assigned probation officer. But as a
California Supreme Court Addresses Conflicting Constitutional Bail Provisions, Sets Out New Framework for Pretrial Release
May 11, 2026
Paul Myslin
Constitutional Law, Criminal Law
On April 30, the California Supreme Court issued a long-awaited opinion addressing the apparent conflict between two bail provisions of Article I of the state Constitution. The key issue in
Driver's Suspended License Didn't Justify 'Community Caretaking' Vehicle Impoundment, Sixth District Holds
April 17, 2026
Paul Myslin
Appellate Law, Constitutional Law, Criminal Law
When are the police allowed to tow your car away and search it? For starters, the Fourth Amendment prohibits unreasonable searches and seizures. When law enforcement impounds a car from a public street without a warrant, that seizure is presumed unconstitutional unless an exception to the warrant requirement applies. See,
California Supreme Court Holds Assault Is Not a Lesser Included Offense of Resisting By Force or Violence
March 30, 2026
Paul Myslin
Criminal Law
The California Supreme Court
Public Defender's Representation of Indigent Habeas Petitioners Is Discretionary, Fourth District Holds
March 5, 2026
Paul Myslin
Appellate Law, Criminal Law
Does the public defender’s duty to take every criminal case include habeas corpus petitions? What are the rules on declining representation? Recently, this issue came up in the context of a state prisoner’s successful post-conviction petition under the California Racial Justice Act (Pen. Code, § 1473, subd. (e)).
California Supreme Court Extends Vargas 'Single Act' Sentencing Rule to Acts With Multiple Victims
January 23, 2026
Paul Myslin
Criminal Law
A recent decision from the California Supreme Court
New California Law Regulates Use of AI in Writing Police Reports
January 2, 2026
Paul Myslin
Criminal Law, Privacy & Information Security
California's
California's 'Restitution First Act' Puts Victim Restitution Ahead of Other Criminal Fines and Fees
December 12, 2025
Paul Myslin
Criminal Law
Being convicted of a crime can get expensive. The California Constitution guarantees that any victim of a crime who has suffered economic loss as a result of that crime is entitled to restitution from the defendant upon conviction. (Cal. Const., art. I, § 28(b)(13); Pen. Code, § 1202.4(a); Welf. & Inst. Code, § 730.6(a)(1).) In addition to restitution owed to the victim or victims for any damage or harm caused, the law is full of various penalties, fines and assessments to compensate the state, courts and other entities involved in the administration of justice. Each county superior court typically has an established fee structure and collections unit (or works with an outside collections agency) to recover fines and fees.
Third District: Mental Health Diversion May Be Withdrawn If Circumstances Prevent Defendant's Participation
November 21, 2025
Paul Myslin
Criminal Law
A California appeals court has held in a
Recent Decisions Define Availability of SB 483 Reforms Limiting Prison Prior Enhancements
October 31, 2025
Paul Myslin
Appellate Law, Criminal Law
Enacted in 2020, Senate Bill 136 significantly altered the sentence enhancement landscape by eliminating the use of one-year prison prior term enhancements (except for sexually violent felonies) (Stats. 2019, ch. 590, §1). Two years later, through Senate Bill 483, this reform was made to retroactively apply to “anyone currently serving a term for a judgment” that includes the former prison prior enhancement. (Stats. 2021, ch. 728, § 1; Pen. Code, § 1172.75, subd. (b).) As these resentencing petitions work their way through the courts, two important issues have recently warranted clarification.
First District: Amending Complaint Doesn't Reset Penal Code's 60-Day Preliminary Hearing Clock
October 10, 2025
Paul Myslin
Appellate Law, Criminal Law
California’s speedy preliminary hearing right is codified in
Trump Takes Aim at Cashless Bail Via Executive Order
September 4, 2025
Paul Myslin
Criminal Law
On Aug. 25, President Donald Trump signed a pair of
Fourth District Holds Veteran's Mitigating Circumstance Need Not Relate to Criminal Conduct
August 29, 2025
Paul Myslin
Appellate Law, Criminal Law
In a
10-Year Stay-Away Orders Are Only Valid for Named Victims, Fifth District Holds
August 8, 2025
Paul Myslin
Criminal Law
In a recent opinion, California's Fifth District Court of Appeal
California Supreme Court Holds That Stayed Prior Prison Term Enhancements Are Eligible for Resentencing
July 18, 2025
Paul Myslin
Criminal Law
Resolving a split in the appellate court, the California Supreme Court has unanimously
Does Physical Location Matter for a Penal Code Section 1381 Demand to Be Valid?
June 27, 2025
Paul Myslin
Appellate Law, Criminal Law
It's not too often that appellate cases arise involving demands under California Penal Code section 1381. Usually, the matter is straightforward and non-controversial. The math is easy: have 90 days passed since the demand was served on the prosecution? If so, and trial has not commenced or sentencing has not occurred, the case must be dismissed. But it's not always so simple. Where the prisoner was located at the time of the demand
An Impossible Conspiracy? California's Second District Disagrees With 42-Year-Old Conspiracy Precedent
June 6, 2025
Paul Myslin
Appellate Law, Criminal Law
A
Does Resisting Arrest Require Actual Knowledge That a Peace Officer Is Being Resisted? California Courts Are Split
May 16, 2025
Paul Myslin
Appellate Law, Criminal Law
Does a willful violation of the criminal offense of resisting arrest require that the offender have actual knowledge that the person resisted is a peace officer? And how does this work when the subject is prevented from having that actual knowledge by a mental health or substance-induced delusion? For the time being, California's appellate courts are split on the question.
Mere Absence of Evidence of Mental Health as Motivating Factor in Crime Doesn't Bar Mental Health Diversion, Third District Holds
April 25, 2025
Paul Myslin
Criminal Law
Mental health diversion is a form of pretrial diversion available for criminal defendants diagnosed with qualifying mental disorders. A
AB 2099 Fine-Tunes California’s Statutory Hate Crime Protections, Expands Them for Reproductive Health Services
April 4, 2025
Paul Myslin
Criminal Law
The harm caused by hate crimes has long been recognized in California. A
Understanding the Critical Safeguard of the '13th Juror'
March 14, 2025
Paul Myslin
Constitutional Law, Criminal Law
The right to trial by jury provides a body of impartial community members to evaluate the evidence and decide questions of fact in a criminal prosecution. It is a constitutional right guaranteed by the Sixth Amendment (and the Due Process Clause of the Fourteenth Amendment) that 12 jurors sit in any case where the penalty exceeds six months of incarceration. Similarly, Article 1, Section 16 of the California Constitution requires that a criminal jury in a felony case consist of 12 jurors, and that a jury in a misdemeanor criminal case or civil case consist of twelve jurors or a "lesser number agreed upon by the parties in open court."
In Pair of Recent Criminal Cases, California Appellate Courts Outline Parameters of Racial Justice Act
February 21, 2025
Paul Myslin
Criminal Law, Elimination of Bias
Two recent appellate opinions show that California courts are beginning to explore the scope of the state's Racial Justice Act, a law that took effect in 2021 aiming to help eliminate the influence of racial discrimination in criminal convictions. The very different outcomes in the two cases show that bringing a successful claim under the RJA is straightforward in some cases, but far more complex in others.
The Laken Riley Act, a New Federal Immigration Detention Bill, Targets Theft and Violent Offenses
January 29, 2025
Paul Myslin
Criminal Law, Immigration Law
As the new administration in Washington, D.C. advances its vision for immigration, the first congressional bill signed by President Donald Trump in his second term is the bipartisan
Compassionate Release Doesn't Include Illness That Has an 'End of Life Trajectory' Only If Treatment Is Withdrawn, Second District Holds
January 10, 2025
Paul Myslin
Criminal Law
California’s compassionate release law is a provision of the Penal Code that provides terminally ill state and county prisoners the opportunity for release if certain criteria are met, allowing them to live out their final moments with loved ones and pass with dignity. But compassionate release is not a get-out-of-jail-free pass. The illness must actually be progressing toward death, as illustrated by a
Unlocking Dead Son’s Phone Data Not a Violation of CalECPA, First District Holds
December 20, 2024
Paul Myslin
Constitutional Law, Criminal Law, Evidence
A tragic story that occurred in San Mateo County provides a
Probation Transfer Not a Change in Circumstances That Justifies Modification of Probationary Terms, Fourth District Holds
December 2, 2024
Paul Myslin
Criminal Law
A
Dismissing Enhancements: How to Calculate Whether a Prior Conviction Is Over Five Years Old
November 8, 2024
Paul Myslin
Criminal Law
Sometimes a legal rule that seems easy to comprehend has nuanced layers that require clarifying litigation. So it would seem with California
The Tale of the Empty Defendant’s Chair
October 18, 2024
Paul Myslin
Constitutional Law, Criminal Law
A line of anxious jurors filed silently into the courtroom on that gloomy Wednesday: eyes cast about with apprehension, wondering who might be chosen to hear the grim tale of some awful crime. A booming voice, seemingly from a great distance, finally broke the silence. High upon the bench sat an imposing figure in a long black robe. “You have been selected for jury service,” proclaimed the voice, as one after another the jurors were seated in the box.
Does Gelardi Unfairly Limit the Court’s Power of Dismissal? Split California Appellate Division Weighs In
September 27, 2024
Paul Myslin
Criminal Law
A
Juvenile Wardship Sealing Petitions Must Be Considered Individually, California's First District Holds
September 6, 2024
Paul Myslin
Criminal Law
California’s juvenile system is built on the premise that offenses committed by juveniles should not, in most cases, follow them into the adult criminal court system. To that end, Welfare and Institutions Code sections 781 and 786 offer a sealing mechanism for juvenile records. The minor client who successfully completes their wardship requirement of informal supervision or probation, as ordered, is entitled to a sealing order that applies to “all records pertaining to the dismissed petition in the custody of the juvenile court, and in the custody of law enforcement agencies, the probation department, or the Department of Justice” (Welf. & Inst. Code, § 786, subd.(a)).
Understanding California's Contempt of Court Protection for Sexual Assault and Domestic Violence Victims
August 16, 2024
Paul Myslin
Criminal Law, Evidence
In California, special regard is given to victims of domestic violence and sexual assault crimes. Due to the traumatic nature of such offenses and the cycle of power and control that is often present, victims may be reluctant to testify against their accuser. The state legislature long ago recognized this experience of fear and the stress of having to relive traumatic events, declaring that “a victim of a sexual assault shall be accorded special consideration because of the severity of the emotional harm resulting from this type of crime.” (See Stats. 1984, ch. 1644, § 3.)
Inventory Searches Require That Inventory Policy or Practice Actually Be Followed, Ninth Circuit Holds
July 26, 2024
Paul Myslin
Criminal Law
It's well-established that the police may search an impounded vehicle without a warrant in what is commonly referred to as an inventory search. See,
California Supreme Court Clarifies Evidentiary Standards for No-Bail Detention
July 5, 2024
Paul Myslin
Constitutional Law, Criminal Law
Bail reform continues to be a hot topic in California’s criminal courts. Since the landmark opinion
Sentencing on Distinct Sex Crimes Convictions Invalidates Penal Code Section 288.5 Sentence, California Appeals Court Holds
June 14, 2024
Paul Myslin
Criminal Law
A
Transporting Cannabis: From Baggies to Blunts
May 24, 2024
Paul Myslin
Cannabis, Criminal Law
In 2016, California voters approved Proposition 64, the Adult Use of Marijuana Act. Among its terms, the new proposition decriminalized the possession and transportation of cannabis and its derivatives, subject to certain limitations. See Health and Safety Code Section 11357 et seq. Effective June 27, 2017, Health and Safety Code, §11362.3, subd.(a)(4), prohibits the “Possess[ion of] an open container or open package of cannabis or cannabis products while driving, operating, or riding in the passenger seat or compartment of a motor vehicle, boat, vessel, aircraft, or other vehicle used for transportation.” A heated debate has emerged to interpret the definition of an open container when it comes to transporting cannabis.
At the Intersection of Facially Neutral and Presumptively Invalid Peremptory Challenges in California
May 3, 2024
Paul Myslin
Criminal Law
The current landscape of peremptory challenges in California is vastly different from what it was just a few years ago. Cognitive implicit bias is now recognized as a pernicious obstacle to the fair selection of a jury of one’s peers. With 2020's
Does Miranda Rights Assertion Prohibit Questions by Police Posing as Prisoners?
April 12, 2024
Paul Myslin
Constitutional Law, Criminal Law
A confession is considered one of the most damaging pieces of evidence against a criminal defendant. Though by itself not sufficient to secure a conviction, a confession is often the factor that tips the scales in favor of a guilty finding.
Facebook Factors Govern Prosecution's Subpoena of Inmate Records, Fourth District Holds
March 22, 2024
Paul Myslin
Criminal Law
In a criminal case, documents and records held by nonparty witnesses and government agencies other than the prosecution may be obtained by means of a subpoena duces tecum. (Cal. Pen. Code, § 1326;
Good Methodology Central to Newest Amendment to Federal Rule of Evidence 702
March 1, 2024
Paul Myslin
Criminal Law, Evidence, Litigation Practice & Procedure
The admissibility of expert testimony in federal court is governed by the Federal Rules of Evidence, rule 702. Adopted in 1975, this rule provides that expert testimony may be presented by a witness who is qualified as an expert by “knowledge, skill, experience, training or education” if that person’s “scientific, technical, or other specialized knowledge” will help the trier of fact understand the evidence or determine a fact in issue.
California's Third Appellate District Explains Rule on Multiple On-Bail Enhancements
February 9, 2024
Paul Myslin
Criminal Law
A popular criticism of the criminal justice system (and bail laws in particular) is that release of accused persons creates a “revolving door.” In other words, due to a perceived leniency of the courts, persons accused of crimes will be right back on the streets committing the same crimes in a very short time. But California has an answer to these concerns. Known as the “on-bail enhancement,”
Recent Second District Opinion Clarifies Defendant's Right to Counsel of Choice
January 19, 2024
Paul Myslin
Constitutional Law, Criminal Law
A criminal defendant is entitled to competent, effective legal representation at all crucial stages of the proceedings. (U.S. Const., 6th Amend.; Cal Const, art, I, § 15; Cal. Pen. Code, §§ 686, 859, 987;
Can You Be Prosecuted for Arson When You Burn Your Own House Down?
December 29, 2023
Paul Myslin
Criminal Law
Turns out that yes, you can be prosecuted for arson if you burn down your own house in California. As long as the house is an inhabited structure, then, by its plain language, you would be in violation of
Can a Sex Trafficking Victim Claim Restitution for Prostitution Earnings?
December 8, 2023
Paul Myslin
Criminal Law
Prostitution has long been illegal in the State of California. The original prohibition, considered a form of vagrancy, dates back to the enactment of the current Penal Code in 1872. The proceeds from illicit activity, therefore, are considered unlawfully obtained. And like proceeds from drug sales, such monies may be subject to seizure without compensation.
Fourth District Affirms Defendant's Right to Be Personally Present at SB 1437 Hearing
November 17, 2023
Paul Myslin
Constitutional Law, Criminal Law
In 2019, the California Legislature enacted Senate Bill 1437, amending Penal Code section 189 with regard to liability for felony murder and creating a procedure for resentencing for those convicted under the former law (Pen. Code, § 1172.6), a great majority of those serving indeterminate sentences in state prison. So do these prisoners have the right to be brought back to their sentencing courts to attend and participate in a resentencing hearing?
Petty Theft in the Pumpkin Patch
October 27, 2023
Paul Myslin
Criminal Law
At 9:00 p.m., Ayma B. Cott is racing home from an early Halloween party. On an open stretch of freeway, a sign proclaims, “Pumpkin Patch Ahead.” A second sign announces, “All Pumpkins $5 each.” Inspired, Ayma decides a pumpkin would look great in the front yard, and turns off the freeway toward the pumpkin patch. At the end of a lonely country road stands a locked gate bearing a sign that says “CLOSED,” connected to a fence surrounding rows and rows of bright beautiful orange gourds.
Amendments to California's Sex Offender Law Offer No Relief for Reduced Wobblers
October 6, 2023
Paul Myslin
Criminal Law
Until 2021, California Penal Code section 290 provided for lifetime sex registration for convictions of certain offenses. At the time, some offenses (so-called wobblers) were available to be charged as felonies or misdemeanors, with the felony always requiring sex registration, and the misdemeanor equivalent without such a requirement.
Examining Bribery: Is It Still a Bribe If a Third Party Stands to Gain the Benefit?
September 15, 2023
Paul Myslin
Criminal Law
The prohibition against bribery of a public officer or employee is covered by two California Penal Code sections. The first,
Restitution Award May Be Excessive When a Crime Victim's Property Is Returned in Good Condition
August 25, 2023
Paul Myslin
Criminal Law
The victim of a crime is not entitled to a windfall. The principles of justice that underscore our criminal law provide that a victim must be made whole, and compensated for physical, financial, mental, and other quantifiable harm suffered. But justice also forbids the awarding of excessive compensation. (See
Transferred Probation Doesn't Confer Jurisdiction for Post-Conviction Petition, Second District Holds
August 4, 2023
Paul Myslin
Criminal Law
California law allows for transfers of probation supervision. If a person is convicted of a crime in a county other than that in which they permanently reside, they may make a noticed motion to have their probation transferred to where they live. (See Cal. Penal Code, § 1203.9.) This is a fairly routine matter for the courts, and a probationer’s supervision may be revoked, extended, or terminated in the receiving county, just as if it had originated there.
California Appeals Court Clarifies Requirements for No-Bail Detention
July 14, 2023
Paul Myslin
Constitutional Law, Criminal Law
With limited exceptions, the right to bail is guaranteed by article I, section 12 of the California Constitution. In order to deny bail for a violent felony, section 12(b) provides that a court must find that “the facts are evident or the presumption great,” and the court must find by clear and convincing evidence that there is “a substantial likelihood the person’s release would result in great bodily harm to others.” There are no shortcuts to this analysis. As the California Supreme Court has pointed out, “[w]hile due process does not categorically prohibit the government from ordering pretrial detention, it remains true that ‘[i]n our society liberty is the norm, and detention prior to trial or without trial is the carefully limited exception.'” (
California Supreme Court Explains That 'Pretrial' Means 'Before Trial'
June 23, 2023
Paul Myslin
Criminal Law
Pretrial diversion programs have been around for many years. Generally, they are a way to resolve low-level offenses through community service or counseling while avoiding both the possibility of a criminal conviction and the necessity of a jury trial. In 2018, the legislature expanded the diversion statute to authorize pretrial diversion for certain mental health disorders. (See Pen. Code, § 1001.36.) But when must a defendant request such a program? Is it before trial starts? Before pronouncement of final judgment after trial? Or something else entirely?
Weighing Options to Arrive at Fair Market Value
June 2, 2023
Paul Myslin
Criminal Law, Evidence
Correctly calculating the value of lifted property is essential in a theft case. The value can affect the weight of the crime as a felony or misdemeanor, whether sentencing enhancements apply, or whether Proposition 47 resentencing might be appropriate. Generally speaking, the value of the stolen property in a theft case is worked out using a “reasonable and fair market value” test. See
Can a Court Reconvene a Discharged Jury?
May 12, 2023
Paul Myslin
Criminal Law
The right to trial by jury is a fundamental component of our criminal justice system, enshrined in the Constitution since the founding of our republic. Even so, jury service is often dreaded as an inconvenience and disruption to one’s daily life. So when the necessity of service is over and the court has pronounced the jury discharged, jurors happily stream out of the courtroom and back into the obscure anonymity of their lives. The court has no more power over them as private citizens. Or does it? Are there any circumstances under which discharged jurors can be summoned back into court?
Clarifying the Crime of Elder Theft by Non-Caretakers
April 21, 2023
Paul Myslin
Criminal Law
California law recognizes the special vulnerability of elder victims of crime. The physical, emotional, and cognitive declines that come with aging make elders particularly susceptible to theft, physical suffering, and other abuses. Elders (defined as those who are 65 years old or older) are protected by Penal Code section 368, which provides increased penalties for crimes that target them.
Ailing Attorney's Cognitive Absence: Is Prejudice Required to Support Ineffectiveness Claim?
April 3, 2023
Paul Myslin
Criminal Law
The Sixth Amendment guarantees the right to effective assistance of counsel. To make a claim that defense counsel was ineffective, a petitioner must show that the legal representation they received was “below an objective standard of reasonableness … under prevailing professional norms" (
Attenuation Doctrine in the Spotlight in Recent California Supreme Court Ruling
March 10, 2023
Paul Myslin
Criminal Law
The Fourth Amendment is alive and well in California. It has been long established that evidence seized during an unlawful search and seizure is inadmissible in court. But there is a noteworthy exception (known as the attenuation doctrine) when the taint of the unlawful search is considered to have “dissipated.”
Are You Detained When Police Shine a Spotlight on Your Car?
February 17, 2023
Paul Myslin
Constitutional Law, Criminal Law
The right to freedom from unreasonable searches and seizures under the Fourth Amendment means that government intrusions on a person’s liberty require objective justification. Over the years, courts have drawn important distinctions to clarify what is a "consensual encounter" with police and what amounts to a "detention."
No Bail Detention Orders Examined Post-Humphrey in Recent California Appellate Case
January 27, 2023
Paul Myslin
Criminal Law
Following the landmark bail case of
Correct Personal Pronouns Key to Showing Dignity and Respect in Court
January 13, 2023
Paul Myslin
Constitutional Law, Criminal Law
Gender identity is a fundamental part of who a person is and how they relate to the world. Our 21st century society is slowly embracing the fact that gender may not always be obvious, and that gender can be seen as a spectrum. We are beginning to recognize that there are more than the traditional binary genders, and that folks who don’t fit our gender expectations deserve no less respect and dignity than anyone else. For many people, it is as basic as remembering to ask for their preferred pronouns (some examples being he/she/they) and consistently using them. But even this basic first step can sometimes prove to be a challenge, as a
The Battle Over Bail in California Heats Up Again
December 16, 2022
Paul Myslin
Criminal Law
California courts continue to wrestle with the issue of bail as they try to navigate between two different provisions of the state's constitution. Over the last several years, the bail reform movement has brought into focus the apparent conflict between California Constitution, article I, section 12 -- which guarantees the right to bail for non-capital offenses unless certain exceptions exist -- and section 28, which directs the court in setting bail to take into account public safety and the safety of the victim. The landmark bail case of
Gone to the Dogs: New Case Clarifies California's Law Allowing Court Therapy Dogs for Crime Victims
November 30, 2022
Paul Myslin
Criminal Law
On Jan. 1, 2018, California went to the dogs. Not literally, of course. But on that day,
California Courts Have Greater Discretion to Substitute Lesser Firearm
November 4, 2022
Paul Myslin
Criminal Law
The law of firearm enhancements in California has generated a lot of attention in the last few years. In 2017, the California Legislature passed Senate Bill 620, empowering courts to strike or dismiss firearm use and discharge enhancements in the interest of justice. (See Stats. 2017, ch. 682 (SB 620).)
Parsing Probationer’s Internet Permissions Proves Perilous
October 14, 2022
Paul Myslin
Criminal Law
The main function of a grant of probation is to afford a less-onerous substitute for incarceration in jail or prison to someone who has been convicted of a crime. Probation usually comes with the loss of important freedoms, including those guaranteed by the Fourth Amendment. The ability to search the probationer for contraband or evidence of a crime or violation is frequently imposed as a condition. It consists of their home, car, and person. But what about their internet access and usage? Does the long arm of probation extend to private social media? When can a court restrict the probationer broadly, denying use of the internet at all?
Recent Developments Advance Penal Code Section 1473.7 Caselaw
September 23, 2022
Paul Myslin
Criminal Law, Immigration Law
There are many points of intersection between criminal law and immigration. These days have seen much activity in the area of Penal Code section 1473.7 Petitions as the caselaw continues to develop. The operative statutory provision, codified by Assembly Bill 813 (Stats. 2016, chap. 739, § 1) and modified by the legislature in 2019, 2021 and 2022 provides that a person no longer in criminal custody may file a motion to vacate a conviction or sentence that is legally invalid due to “prejudicial error damaging the moving party’s ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences” of the conviction or sentence. (Pen. Code, § 1473.7, subd. (a)(1)).
Joinder By Information: Penal Code Section 954 Considerations When Two Cases Are Filed As One
September 2, 2022
Paul Myslin
Criminal Law
Ordinarily, the consolidation of two or more criminal cases into a single proceeding follows the process laid out in Penal Code section 954. An accusatory pleading may charge two or more different offenses that are “connected together in their commission” or “different statements of the same offense” or two or more different offenses “of the same class of crimes or offenses.” (Pen. Code, § 954). Consolidation may be contested by the defense, and is typically the subject of pretrial motions. But what happens when two offenses, months apart in time, proceed each one to preliminary hearing and holding order, and then appear together on a combined information filed within the statutory period? Is this proper joinder? Shouldn’t the prosecutor have to file a motion to consolidate the two separate cases?
Penal Code Section 1473.7 Expanded To Include Post-Trial Petitions
August 12, 2022
Paul Myslin
Criminal Law, Immigration Law
In 2016, the California Legislature enacted
Establishing Venue When Crime Crosses County Lines
July 22, 2022
Paul Myslin
Criminal Law
It is always important to establish proper venue, and easy to overlook. A criminal scenario may have all the required elements, all the witnesses and evidence, and no viable defense, but if territorial jurisdiction is lacking, the case cannot move forward. And California’s patchwork of counties can make this issue a particularly thorny one for prosecutors.
Can a Court Set a Restitution Amount When Probation Has Expired?
June 24, 2022
Paul Myslin
Criminal Law
In one of last year’s most significant legislative amendments, the lengths of probation for misdemeanor and felony cases were shortened to 1 year and 2 years, respectively (barring a few exceptions, such as offenses that have specific probation lengths in their provisions). (See Stats. 2020 chap. 328 (AB 1950), effective Jan. 1, 2021.) Because the amendment is retroactive, qualifying probations are reducible to the new terms under
Is Penal Code Section 1109 Bifurcation Retroactive?
June 10, 2022
Paul Myslin
Criminal Law
Last year’s legislative overhaul of the gang enhancement statutes (AB 333, the Step Forward Act of 2021) included the enactment of Penal Code section 1109, which gives the defense the right to require bifurcation of a gang enhancement from the underlying offense. Moreover, the defense can demand that an alleged violation of Penal Code section 186.22, subdivision (a) tried separately from “all other counts that do not otherwise require gang evidence as an element of the crime” (Pen. Code, §1109, subd. (b)). Previous caselaw had held that bifurcation required that the defendant clearly establish that proof of the pattern offenses is unduly prejudicial (
Disagreement Over Strategy in a Criminal Case: When Is It McCoy Error?
May 20, 2022
Paul Myslin
Criminal Law
Criminal defendants and their attorneys are usually on the same page about how a case should proceed. After all, a knowledgeable and experienced attorney is the best advocate a client can have. But every so often, in the high-stakes, high-pressure environment of trial, disagreements over strategy can arise. Critical decisions can materially alter the outcome of the case. And nowhere is this more evident than in the decision to admit guilt to some or all of the charges. Under what circumstances can the attorney make a strategic admission of guilt if the client is not fully on board with it?
First Appellate District Affirms Suppression in Pat-down Search Case
April 29, 2022
Paul Myslin
Criminal Law
Before police officers can lawfully conduct a pat-down search of a citizen, they must have a reasonable belief that the subject is armed and dangerous (see Terry v. Ohio (1968) 392 U.S.1). To support this belief an officer must be able to set forth specific and articulable facts, together with rational inferences (People v Dickey (1994) 21 Cal.App.4th 952, 955). Absolute certainty that a subject is armed is not required, but a mere hunch, or an “inchoate and unparticularized suspicion” is not enough to justify a pat-down search. (See King v. State of California (2015) 242 Cal.App.4th 265, 283 and In re Jeremiah S. (2019) 41 Cal.App.5th 299, 305.) This well-settled law was recently put to the test in the First Appellate District in the case of People v. Pantoja (March 24, 2022, A162591; 2022 Cal.App. LEXIS 311). Examining just how much the officer knew and how much the surrounding circumstances played a role (or didn’t) helps inform future litigants confronting these issues.
Consecutive Life Sentences Are Discretionary for Multiple Convictions of Continuous Sexual Abuse of a Child
April 8, 2022
Paul Myslin
Criminal Law
Most California practitioners are familiar with the Three Strikes Law, enacted in 1994 and codified at Penal Code section 667, subdivisions (b)-(i). Aimed at repeat offenders of serious and violent crimes, this law directs that someone convicted of a felony who has a previous conviction of a serious felony will receive double the usual term of imprisonment, and a person with two or more prior strikes will receive a term of at least 25 years to life upon conviction of a qualifying felony offense. Less well-known is
Does a Masked Witness Violate a Defendant’s Right of Confrontation?
March 18, 2022
Paul Myslin
Criminal Law
As the COVID-19 pandemic stretches into its third year, the raging debate over masking and whether it should be required grabs headlines constantly. It is hardly a surprise, then, that the issue of masking has also made its appearance in the criminal courts, where questions of individual rights are often pitted against governmental mandates. As courtrooms struggle to return to some semblance of normal operation, most have reopened for regular jury trials, and find they must balance public health considerations such as masking with the defendant’s right to confront their accuser, face to face.
Unreasonable Good Faith Belief Is a Defense to Driving a Stolen Car
February 25, 2022
Paul Myslin
Criminal Law
It all started with a 2005 Honda Accord, stolen out of a tow yard in El Dorado County. The car itself was unremarkable in appearance, except for the lack of front license plate and the fact that it had been spray-painted matte black. Notably, the keys were with the car, having also been stolen from the tow yard. Five days after the theft, the car was spotted by sheriff’s deputies and pulled over. The driver explained that he had just borrowed the car from his friend, an auto mechanic, in order to take his pregnant girlfriend to the hospital. When informed by deputies that the car was stolen, the driver’s reaction was one of disbelief: “You’re kidding.”
Can You Get Restitution for a Stolen Car's Drop in Resale Value?
February 4, 2022
Paul Myslin
Criminal Law
New and used cars are typically valued according to standard published market guides, such as Kelley Blue Book and Edmunds. These market-based guides assign an estimated value to a car based on its factory features, age, mileage, condition, and accident history. Included in this calculation is the title history.
Does Toking or Towing Justify a Warrantless Car Search?
January 14, 2022
Paul Myslin
Constitutional Law, Criminal Law
Two county sheriff’s detectives were out on patrol one day in the City of Sacramento. A gold Chevy Impala with tinted windows drove by, its windows rolled one-third to half-way down. The detectives quickly did a records check and determined that the Impala’s owner was the driver, and that his license was suspended. Upon contacting the driver, one of the detectives smelled the odor of burnt marijuana coming from the car. They ordered the driver out of the car for a pat-down search, but didn’t find anything illegal. Next, the detectives decided to search the car itself, relying on two potential justifications for the warrantless search: the burnt marijuana, and a tow inventory. On these facts, was either justification a proper basis for searching the car?
COVID Happened and I Never Got Notice of My New Court Date. Do I Have To Do Anything?
December 27, 2021
Paul Myslin
Criminal Law
When someone is required to appear in court and fails to appear, a bench warrant is usually issued. Ordered by a judge or magistrate (issued from the bench), a bench warrant empowers law enforcement to arrest the subject and return them to the court without delay. Penal Code section 978.5 provides specific situations where a bench warrant is appropriate. These include, for example, where the subject fails to appear after having been previously ordered personally appear in court at a specific time and place, or having been released from custody on bail or own recognizance upon a promise to personally appear, or having been released from custody or arrest upon citation by a peace officer or other person authorized to issue citations and having signed a promise to appear in court at a specific time and place.
Is There a Doctor in the (Court)House?
December 3, 2021
Paul Myslin
Criminal Law
Doctors may be called upon to render lifesaving aid at any time and place. Even, on occasion, while testifying in a jury trial. This scenario played out recently in a courtroom in San Joaquin County.
When a Defendant's Multiple Diagnoses Are 'All Tangled Up' in Applying for Mental Health Diversion
November 12, 2021
Paul Myslin
Criminal Law
Human beings are complex organisms, but in the criminal justice system there's often a desire to solve and explain misbehavior in the simplest terms -- to diagnose someone and point to the specific reason that drove their conduct on a particular occasion. Solving crimes suggests that there are knowable answers in situations that seem senseless.
Rethinking Criminal Gang Sentencing Enhancements
October 21, 2021
Paul Myslin
Criminal Law
Gang crime has long been a plague in our society. Rival gangs engage in turf wars and terrorize neighborhoods with seemingly never-ending crime waves. Over the years, special sentencing enhancements have sought to quell these activities by lengthening prison terms when crimes are shown to be committed for the benefit of a criminal street gang. Gang experts, usually law enforcement, identify and keep tabs on who is in a gang, who they associate with, and what crimes they’re committing.
Deadlines, Deadlines, and More Deadlines in a Criminal Case
October 1, 2021
Paul Myslin
Criminal Law
Nearly every aspect of a criminal case is driven or informed by some sort of deadline. Whether set by a constitution, statute, or a published case, each deadline serves to keep things moving along and ensure due process for both sides. The remedy for missing a deadline without good cause can be severe. It might result in dismissal of the prosecution, a finding of waiver of legal defenses, time-barred claims, and even ineffective assistance of counsel, with state bar reporting and sanctions. Let’s review some of the most basic deadlines in a criminal case.
Penal Code Section 149 and the Missing Jury Instruction
September 10, 2021
Paul Myslin
Criminal Law
California has long recognized the potential that some law enforcement officers might abuse their authority in their zeal to perform their duties. As far back as the first enactment of the penal code, there has been a prohibition on the use of excessive force under color of authority. And while civil complaints of excessive force are well-known and frequently lead to impeachment of law enforcement witnesses through the Pitchess process (see
Why Should an Attorney Visit the Scene of a Crime?
August 20, 2021
Paul Myslin
Criminal Law
One of the first lessons every criminal attorney learns is the importance of visiting the scene of the events that resulted in charges being filed. This time-honored practice often results in a gold mine of information and can sometimes even turn a case from hopeless disaster to compelling narrative. But in an era of technology that allows virtual travel with a few keystrokes and the ever-present COVID-19 pandemic, it can be tempting to cut corners here. Don’t. Here are some reasons to make that trip out into the field.
Are Spontaneous Statements Admissible in a Probation Revocation Hearing?
July 30, 2021
Paul Myslin
Criminal Law, Evidence
Probation revocation hearings offer defendants far fewer rights and protections than jury trials. Not only is the standard of proof lower (preponderance of the evidence), but a judge also acts as the finder of fact, guided by more flexible evidentiary standards. For example, there is largely no exclusionary rule for illegally-seized evidence unless it shocks the conscience. Reliable documentary evidence may be admitted without live testimony as its source. And there is no Sixth Amendment right to confrontation.
New Forms to Smooth California's Transition to a Tiered Sex Offender Registration System
July 9, 2021
Paul Myslin
Criminal Law
In 1947, California was the first state to require offenders convicted of specified offenses to register annually, on their birthday, with their local law enforcement agency. While the requirement itself is deemed a civil provision, failure to register or update one’s sex offender registration is a criminal offense (and may be punished as a misdemeanor or felony). According to the state Attorney General, there are currently
AB 1869: Marching Toward Elimination of Criminal Admin Fees
June 18, 2021
Paul Myslin
Criminal Law
Did you know that you can be charged a fee for being arrested? And you may have to pay a fee for being booked into jail? And then you can be charged an assessment for your “free” public defender? Or charged for costs associated with probation supervision and work furlough programs? These dystopian fees defy common sense. Worse still, such fees are being levied against the very people least able to pay them, resulting in further impoverishment and harassment of defendants and their families.
Do You Need an Interpreter for Your Criminal Case?
May 28, 2021
Paul Myslin
Criminal Law
Interpreters are a vital part of our criminal justice system. After all, the ability to understand the proceedings lies at the very heart of due process. The California Constitution guarantees the right to an interpreter throughout criminal proceedings. (See Cal. Const. art. I, § 14.) As the courts have implemented this right, certain basic rules have developed around the use of interpreters.
Uncovering Excessive Force and Racial Bias in a Law Enforcement Witness
May 7, 2021
Paul Myslin
Criminal Law
While the vast majority of police officers honorably uphold their oaths to protect and serve, there are unfortunate and numerous exceptions, as the news cycles have lately demonstrated. An officer’s behavior might include excessive force, racial bias, and false allegations. While jurors may be receptive to a client recounting having experienced some of these injustices, it is far more persuasive to show the officer was acting consistently with an ongoing pattern of such conduct. The information to show such a pattern is maintained the officer’s confidential personnel file, and the primary tool to discover it is a
Should I Make a Motion in Limine?
April 16, 2021
Paul Myslin
Criminal Law, Litigation Practice & Procedure
An in limine motion is a request for an evidentiary ruling made before trial to determine whether certain evidence will be admitted or excluded. Its main function is to to keep out evidence that might be prejudicial if offered or discussed in front of the jury. When seeking to exclude evidence, proceeding by way of in limine avoids the necessity of trying to "unring the bell" once a jury knows that such evidence exists. See
Three Pathways to Contempt: Direct, Indirect, and Hybrid
March 25, 2021
Paul Myslin
Criminal Law
Contempt by an attorney is a very serious matter. It can result in jail time, a misdemeanor conviction, civil sanctions, disciplinary proceedings before the state bar, or all of the above. But contempt is also a complex issue, where an attorney’s zealous representation of their client must be balanced against their duties to the court. To help narrow down the different contempt scenarios, attorney contempt is sometimes divided into three categories: direct contempt, indirect contempt, and hybrid contempt.
California Supreme Court Holds Ability to Pay Must be Considered in Setting Bail
March 25, 2021
Paul Myslin
Criminal Law
The California Supreme Court issued its long-awaited
Got a Warning from a Police Officer. Do I Have to Tell Probation?
March 5, 2021
Paul Myslin
Criminal Law
Courts often say that probation is a privilege. For a convicted person, it represents a chance to remain in the community under supervision rather than being incarcerated for the duration of their sentence. It can include rehabilitative services such as job training and counseling. And it keeps the community safe by monitoring for recidivism and imposing corrective measures when necessary. The conditions of supervision, however, can sometimes get tricky.
Referee or Advocate? When the Judge Becomes a Second Prosecutor
February 12, 2021
Paul Myslin
Criminal Law, Legal Ethics
In the adversarial system of criminal trials, the court must remain a neutral party. The role of the bench is to oversee the progression of the case and ensure that procedure is followed, while admitting or excluding evidence based on established legal principles and making an appropriate sentencing decision if necessary. Judges must seek to uphold the truth and cannot act as advocates for one side or another.
What Goes In a Criminal Complaint?
January 22, 2021
Paul Myslin
Criminal Law
The process of bringing criminal charges begins with a formal written document that must include certain particulars. Prosecutors are required to give adequate and specific notice of the allegations to the defendant at the risk of forfeiting important issues and potentially jeopardizing the ability to secure a conviction. So what exactly are the basic requirements of a criminal complaint?
AB 1950 Shortens Probation Terms in Criminal Cases
January 4, 2021
Paul Myslin
Criminal Law
On September 30, Gov. Gavin Newsom signed
The Presumption of Innocence: When Does It End?
December 11, 2020
Paul Myslin
Criminal Law
One of the key pillars of a criminal trial is the presumption of innocence. Regardless of the amount of evidence or number of witnesses mustered by the state, the individual defendant maintains the right to this important presumption throughout the trial and into jury deliberations. It informs each decision point the jurors must consider before arriving at a verdict.
Revisiting Murgia: How Farmworkers Pushed Back Against Discriminatory Prosecution
December 4, 2020
Paul Myslin
Criminal Law
It was the summer of 1973, and Kern County became the center of attention in the struggle between migrant farmworkers and the agribusiness industry (the “growers”). For their part, growers did all they could to destroy the fledgling United Farmworkers Movement (UFW), a labor organization established by César Chávez and his supporters. Growers and their surrogates frequently assaulted UFW members as they organized and picketed for better working conditions, while Kern County Sheriff’s deputies looked the other way -- or worse yet, encouraged the misconduct. Unjustified arrests and excessive force by law enforcement often followed. Even the District Attorney’s Office got involved, assisting growers in civil actions against the UFW by way of injunctions and related contempt proceedings. But it was the discriminatory application of the Penal Code to harass UFW workers that caught the attention of the California Supreme Court.
Handling the Media in a High-Profile Case
November 13, 2020
Paul Myslin
Criminal Law
Every so often, a criminal case becomes
AB 3070: A Sea Change for Batson-Wheeler?
October 9, 2020
Paul Myslin
Criminal Law, Elimination of Bias
In a criminal case, each side gets a certain number of peremptory challenges. A peremptory challenge is an objection to a juror that the court must follow, and for which no reason need be given. However, peremptory challenges may not be used to systematically exclude jurors based on their membership in a cognizable group distinguished by racial, religious, ethnic, or similar characteristics. This is colloquially known as the
BIA Holds Cancellation of Removal Precludes Later Removability Proceedings Based on Same Offense
October 8, 2020
Paul Myslin
Immigration Law
In a win for aliens who have been granted the relief known as “cancellation of removal,” the Board of Immigration Appeals
The Shifting Landscape of Bail Reform in California
September 18, 2020
Paul Myslin
Constitutional Law, Criminal Law
As Election Day inches closer, all eyes are fixed on the national stage. But for Californians, another important decision awaits the voters: The latest twist in the struggle over bail reform will be set to the vote on Nov. 3. Among the measures on this year’s ballot is Proposition 25, the statewide referendum to determine whether California’s voters will endorse SB 10 -- passed by the legislature and signed into law by former Gov. Jerry Brown in 2018 -- and abolish cash bail.
Gov. Newsom Signs Inmate Firefighter Expungement Bill
September 14, 2020
Paul Myslin
Criminal Law
Sitting on a park bench against a backdrop of yellow haze, California Gov. Gavin Newsom on Friday signed
California Supreme Court Reinstates Precedential Effect of Part of Landmark Bail Opinion
August 28, 2020
Paul Myslin
Criminal Law
In an order filed Wednesday, the California Supreme Court reinstated the precedential effect of Part III of
Every Jury Instruction Is a Golden Opportunity
August 28, 2020
Paul Myslin
Criminal Law
It’s late in the afternoon. The jury has gone home for the day. Both attorneys are tired from the day’s testimony and the sleepless night of preparation that preceded it. The judge, loath to waste any time, directs, “I’ll need your proposed jury instructions in an hour.”
Who Is Protected by Hate Crime Laws?
August 7, 2020
Paul Myslin
Criminal Law
One of the most noble functions of the law is the protection of vulnerable and historically oppressed individuals. This is particularly evident in our criminal law, where sentencing enhancements attach when a crime is directed at someone primarily because of their skin color or protected feature of their person.
U.S. Attorney General Rebukes BIA’s Application of Categorical Approach
July 31, 2020
Paul Myslin
Criminal Law, Immigration Law
Calling the Board of Immigration Appeals “wooden” in its application of the categorical approach seeking to match a state conviction to a single federal definition of an aggravated felony for immigration purposes, the U.S. Attorney General on Thursday
BIA Rules Arizona Criminal Possession of a “Dangerous Drug” Is Divisible
July 24, 2020
Paul Myslin
Criminal Law, Immigration Law
In a published
Vouching: When Have You Crossed the Line?
July 10, 2020
Paul Myslin
Criminal Law
In the heat of closing argument, prosecutors and defense attorneys often appeal to jurors' senses of logic and reason. As they cast their version of events as more compelling than the competing version, they may pose questions such as: Does this make sense? Is it believable? Creditworthy? Taking it a step further, they may argue that in order for the opposing side’s story to make sense, certain witnesses would have to be lying, so what’s in it for them? And finally, the argument goes, would my witness get up there and lie -- in spite of the risks and personal consequences -- just to achieve the conviction of this particular defendant?
SCOTUS Won't Take Up Qualified Immunity for Law Enforcement Officers
June 15, 2020
Paul Myslin
Constitutional Law, Criminal Law
Against the backdrop of nationwide protests over police brutality, the U.S. Supreme Court on Monday
California Prosecutors Call on State Bar to Prevent Political Endorsements and Contributions for Prosecutors from Law Enforcement Unions
June 2, 2020
Paul Myslin
Criminal Law
A coalition of current and former elected prosecutors sent a
A Tale of Two Moral Turpitudes
May 29, 2020
Paul Myslin
Criminal Law, Immigration Law
Starting out in the practice of criminal law comes with a steep learning curve, including picking up many specialized terms, concepts, and definitions. Among the most arcane is the concept of moral turpitude.
7 Keys to the Motion to Revoke Probation
May 1, 2020
Paul Myslin
Criminal Law
“Your client is back on Calendar, and the DA is filing an MTR.” Many attorneys dread this news, knowing that a probationer is back in trouble.
California Extends Emergency Criminal Trial Suspension Order Another 30 Days
April 30, 2020
Paul Myslin
Criminal Law
Acting under her authority as Chair of the Judicial Council as well as California Constitution, article VI, Section 6 and California Government Code section 68115, California Supreme Court Chief Justice Tani Cantil-Sakauye issued a new
SCOTUS Upholds Police Stop of Vehicle Based on Suspended License of Its Registered Owner
April 6, 2020
Paul Myslin
Constitutional Law, Criminal Law
In an 8-1 ruling, the U.S. Supreme Court on Monday
California Plans to Release 3500 Non-Violent Inmates Early to Prevent COVID-19 Spread in Prisons
April 1, 2020
Paul Myslin
Criminal Law
To curb the spread of COVID-19 in the state's prisons, the California Department of Corrections and Rehabilitation