LOOKING AT MY CHOICES AGAIN

by Mary de la Pena, esq

marydelapena-author.com delapenalawoffice.com

I am trying to be a good patient—really I am! I’m staying away from alcohol, mostly, except for maybe a half glass of wine two or three times a week. And, I am not only back in the pool exercising, but I am eating lots more fruits and vegetables—and a donut has not passed my lips in weeks!

See, Doc? Really, I’m trying!

This was the conversation I was having with my very concerned internist who had been my family’s doctor for more than two decades. But, somehow he wasn’t buying it.

Hmmm, could it be the backsliding? You know, the backsliding of going back to court and dipping into the adrenaline stream—should I tell him?

I hesitated just long enough for him to guess.

“How’s the law practice going?” he asked, staring hard into my eyes.

When I just shrugged, he sighed, which in his vernacular is the same as a scolding. He sighed again, then just said, “It’s your life. Your choice.”

What could I say? Is it really my choice? Can I really abandon my clients who need me? And, what about my law partner husband who still choses to practice? What about him when he needs help?

These are the choices any professional needs to face when having to make the decision to retire or stay in the arena. But, are they real choices, or are they a product of ego?

Ego—that funny thing inside professionals that lead us to believe our clients can’t make it without us, or our spouses would rather see us work ourselves to death than spend a long happy life together because they need the money we make.

Whoa, dude, maybe I need to re-examine what is really going on. Is it the need for the powerful rush of adrenaline that is making me return to the courtroom, or is it my need to believe I am indispensable?

Hmmm, maybe I need to look at the choices again—focusing on my writing and living the rest of my life in peace, or riding the wave of adrenaline. A choice not as easy as it appears.

Again, stay tuned. . .

ADRENALINE—MY DRUG OF CHOICE

The power surged through my veins and woke up my sleepy brain like a tidal wave over a helpless island. It washed away my sluggishness and awakened my killer instinct—it was war! And I intended to win it!

Unfortunately for me, my heart very quickly thereafter started a rapid tattoo in my chest and though my brain was awake, the rest of me felt the earth shift beneath my feet. I knew I would sliding down into unconsciousness if I didn’t quickly get a deep breath! It could only end in an embarrassment if I didn’t immediately get control over my body.

I was once again in court—the forbidden place my doctor ordered me to resist until he could get a diagnosis as to why my heart was doing a tap-dance in my chest every time I began to engage in battle. Silly doctor, I knew the cause—ADRENALINE—my dearest friend, and now sworn enemy.

Any lawyer who spends their days in court knows the steady diet of a special drug to which we all become addicted—adrenaline. It boosts our power and makes us into “super lawyer—ta da ta da!” while taking away our appetites, driving us to eat sugars and fats, and making us crave caffeine. After more than twenty-nine years in the arena is there any doubt that I was addicted to adrenaline?

But, now, the long decades of depending on my favorite drug and its attendant diet choices were taking its toll. I could no longer exercise my way out of its grip, and could no longer tolerate its affects. It was destroying me, and possibly my heart.

It was time to quit—but cold turkey? Could I really quit, walk away forever? Or could I manage my adrenaline and still got to court? I don’t know. That is the question and I begin my quest to either conquer my addiction, or walk away from my profession forever. . .

As they say—stay tuned. 

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DYING CATS and ANGELS 

by MARY DE LA PENA [aka M.J. HATCH] 

 marydelapena-author.com  mjhatch.com

As a mystery writer and criminal defense attorney I deal with death on an almost weekly, if not daily basis. However death is always in the abstract, not real, only something on paper. Today, I witnessed death up close and personal.

I was on my way to court in the city of Riverside, California when I saw something in the roadway that did not make sense. It was moving, and was not a color that I associated with a blowing plastic bag or paper. As I slowed down I realized it was a cat that had more likely than not been hit by a car, but was not yet deceased.

Horrified, I drove for another block before realizing I could not let that poor animal remain on that busy street and be hit again, or worse yet, cause an accident as other drivers hopefully swerved to avoid it much as I had. I did a quick U-turn and drove back to the scene. Another quick U-turn and I pulled my car to the side of the road where the cat struggled. With no cars coming I immediately jumped from my car and ran to the cat, picked it up and took it to the grass on the parkway by the side of the road.

As soon as I picked up the cat I knew it was probably a feral cat and was definitely in its death throws. The cat’s fur was dirty and his body was thin, with the trauma to its head most likely mortal. One of his eyes was dislodged from its socket, and his skull was partially crushed. But yet, he struggled to survive, his instinct was to run, but the signals to his legs only strong enough to cause them to stretch and contract. It broke my heart, yet I could not leave him alone to die.

I whispered quietly to the cat, and stroked his fur, imagining that I was the first human hand that had given him this sign of affection and security. To my amazement he began to purr, his last breaths coming with his brave attempt to prove he was still strong. Seeing that his death was near I found myself crying, and then praying that God would take this blessed animal and bring him into His loving arms. With the prayer sent to Heaven, the cat’s breath came slower, the contractions in his legs stopping, with one last breath expelled as a purr, he transitioned to God.

Seeing his blood on my hands, and knowing that the cat was now beyond pain or hunger or fear, I felt my tears stream down my face, my strong impersonal persona of criminal defense attorney crumbling. Yet, even with my tears I heard the voice without a voice tell me that I had acted in his stead this morning. I was this animal’s angel in death to help him transition with at least one loving hand on him as he passed.

We never know when we will be called to be that angel. Just know that every living thing needs love and a loving hand when it passes. Just remember it is truly blessed when you are the one called upon and know you have the strength.

SPEEDY TRIAL RIGHTS and STATUTE OF LIMITATIONS

By

Mary de la Peña, Esq. co-author of A Layman’s Guide to Criminal Defense

Yesterday the issue of speedy trial rights came across our law office desk. A client was arrested after more than three years for a crime he was alleged to have committed more than three years ago. The question was:  Is that legal?

Statute of Limitations:

First, let me give you the Statute of Limitations (the time in which a criminal case must be filed) as it relates to California law, then I will give you the Federal version, as well as a couple of exceptions.

• ·       In California a criminal complaint alleging a felony must be filed within three years of the offense, unless it falls within some limited exceptions.
• ·         In Federal Court, the law is five years from the date of the offense.
• ·         There is no statute of limitations for murder in either court setting.
• ·         For child molestation it must be brought within five years of the person turning 18, or within three years of reporting if the victim is under 18.

What Does this Mean?

The Statute of Limitations relates only to the filing of a case by the prosecution. It has nothing to do with the actual time in which a defendant must be brought to trial on pending charges. It means that when the police or prosecution know of a violation of law, they must proceed in due haste to bring the charges on the offense. If they do not, then the courts can dismiss the case as not being timely brought. A dismissal on these grounds is absolute. The DA cannot refile and start the clock over again.

What Then Are Speedy Trial Rights?

Speedy Trial Rights are the time frames in which a person must be brought to trial after a criminal complaint has been filed. In Federal Court the clock only starts running after the indictment and arraignment on the indictment. In State Court it is after the preliminary hearing and arraignment on the information.

In California the statutory time for a misdemeanor is 45 days after the arraignment on the misdemeanor complaint, and for a felony it is 60 days after arraignment on the information.  

In California the prosecution has two tries to get a case to trial. Meaning, if they miss the deadline for the first preliminary hearing (10 days after arraignment on the complaint) or miss the trial deadline (60 days after arraignment on the information) they can dismiss and refile which starts the clock running again. But, they only get two tries!

Are There Exceptions?

Of course there are exceptions to this rule which is what many defendants and their families run into when they are in court. The exceptions are:

• ·         Time Waivers: The first major exception is when the defendant “waives” time. This means that the defendant agrees that his attorney can have extra time to prepare the case. He is asked to “waive” time, which means he, for that period of time gives up his rights to a speedy hearing;
• ·         Good Cause: Sometimes when there are multiple defendants in a case, or for some other good reason the prosecution cannot proceed at the time the case is set for hearing, the court may find “good cause” to allow extra time to bring the case to trial. The court may not use “Good Cause” as an excuse for court congestion.
• ·         Unavailability of Counsel: This usually falls within the “good cause” exception when it is defense counsel that is not available. The defendant is then faced with getting a new attorney or losing his right to proceed immediately.

These are just a few of the exceptions. Each case is different so advise of counsel is necessary.

So, what about the defendant that appeared in our office? As it turns out, the prosecution filed the case on the last day, then took their time in arresting the defendant for the crime.

Hmmm, what then?

If that happens, the attorney must file what is called a Serna Motion to Dismiss for failure to bring a defendant before the court in a timely manner. In this motion the defense must show that there are no changes in circumstances in the investigation of the case; that the defendant’s whereabouts have always remained the same; and as a result of the long time in-between the defendant has suffered prejudice of some sort.

Only when the defendant can prove prejudice by a preponderance of the evidence (51%) does the burden then shift to the prosecution to show why they waited so long. If there is no good reason, the case must be dismissed with prejudice!

This is just a brief overview of the speedy trial and statute of limitations issues and law. There, of course, are always exceptions, and your attorney is always the best person to advise you. 

CALIFORNIA’S PROP 47 and RESENTENCING

By

MARY DE LA PEÑA, esq.

Co-author of A Layman’s Guide to Criminal Defense

In California’s November 2014 election, the state voted on an initiative that allowed for certain felonies to become misdemeanors, and the process by which a defendant can request resentencing under the new guidelines. The proposition was called Prop 47, the Safe Neighborhoods and Schools Act.

Admittedly, just trying to trace through the various code sections to determine what exactly the Legislature had in mind is in of itself mind-boggling! Here’s what we’ve come up with as far as who is eligible for resentencing.

The second part of this essay is how and where a defendant files paperwork to be resentenced.

What are the felonies that can be reduced?

The newly enacted Penal Code section 1170.18 requires the courts and district attorneys to resentence a defendant if they have previously suffered a prior drug felony of simple possession of a controlled substance or transportation for personal use which ae 11350, 11357, or 11377 of the Health and Safety Code. In addition certain theft offenses under Penal Code Sections 459.5, 473, 476a, 490.2, 496, or 666 are eligible for reductions to misdemeanors.

However, if a defendant has a previous strike, then they are not eligible for reduction of the felony and resentencing.

Who is not eligible?

The newly enacted law under Penal Code section 1170.18 lists those who have prior felonies that would take them out of the new sentencing structure. There are those felonies as listed under Penal Code section 667, subdivision (e)(2)(C)(iv).

What are the disqualifying strikes?

·         A “sexually violent offense” as defined in subdivision (b) of Section 6600 of the Welfare and Institutions Code;

·         A sexual act committed on any child under the age of 14 who is younger than the defendant by 10 years including, oral copulation; sodomy; or sexual penetration.

·         A lewd or lascivious act involving a child under 14 years of age, in violation of Section 288.

·         Any homicide offense or attempted homicide including murder and gross negligent manslaughter.

·         Solicitation to commit murder;

·         Assault with a machine gun on a peace officer or firefighter;

·         Any serious and/or violent felony offense punishable in California by life imprisonment or death.

If a defendant has suffered any of these prior convictions, they are not eligible for resentencing.

Unfortunately, too many people imprisoned who are not represented by an attorney and seek to have this modification get their hopes up, only to have them dashed by the actual law. This may lead some defendants to go directly to the appellate court to get around going back through the same district attorney’s office that convicted them in the first place.

THIS DOES NOT WORK!

Prop 47 imbedded within it the proper way to seek resentencing. The Petition for Recall of Sentence must be filed in the trial court of the county of the current conviction. If it is filed in the appellate court, the appeals court will send it back which lengthens the process.

Where does a defendant file the Petition for Resentencing?

The defendant must go back to the court that sentenced him originally to file their petition. It is filed with the court and a copy given (served) on the Office of the District Attorney of that county. The DA will then look at the defendant’s record to see if they “pose an unreasonable risk of reoffending”.

That, of course is the sticky part of the law. If a defendant’s record is extremely long, and if they have not been free from custody for long periods of time, meaning they’ve spent most of their life in jail, then more likely than not, they will not be eligible for resentencing.

If a defendant is found to be a risk for reoffending can they appeal?

The short answer is “yes”. That ruling can be appealed with a writ of habeas corpus. The prison has that form, and can be filed out by the prisoner. But this avenue is only open after the hearing on potential for reoffending.

This whole resentencing issue can be daunting, and if a defendant is not represented by counsel it seems crazy. If you think you are eligible, and if you can, hire a criminal practitioner to help you.

GOOD LUCK!