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!

THE IMPORTANCE OF TRIAL OBJECTIONS BY THE ATTORNEY

By

Mary de la Peña, Esq.

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

       

        Trial attorneys need to be on the top of their game whenever they are in trial. They need to listen to the witnesses, listen to the prosecutor, be aware of the jury’s reaction to evidence as it’s being presented, and most importantly they need to make sure that timely objections are made to whatever is happening in the court that may constitute error. That means one of the most important job they have is preserving the record for appeal by making timely objections so no issue is left on the table without a ruling.

        What do I mean by that?

An objection is in essence a “time out” called by the attorney to make sure the judge knows that the attorney believes something irregular or illegal is happening during a court proceeding. It can be during the presentation of the evidence, or during court business outside the presence of the jury, such as finding an interpreter for the defendant or witnesses; or even making objections to suggested jury instructions. All are important, and all require strict attention to detail by the attorney.

How important are timely objections?

They are so critically important that if they are not made the appellate court will not even address the issue on appeal. In other words, if the attorney does not preserve the record or make the objections by calling the “time out”, the reviewing courts will not address the issue on appeal.

In just the last two weeks several critical cases were ruled on by different Courts of Appeal in California, and in each case the courts refused to address the points presented because the attorney did not object and the issues were left on the table and never had a ruling by the trial court.

What were these issues?

These issues included:

v  whether a defendant was afforded a competent understanding of the trial by having an interpreter [People v. Sokou, 2^nd District, decided June 25, 2015];

v  whether the jury instruction given to the jury was proper and adequate [People v. Rojas, 5^th District, decided June 22, 2015]; and

v  whether the prosecutor committed error by improperly vouching for his witnesses truthfulness [4^th District, decided June 18, 2015].

As you see, these are important issues. Yet, because the attorney did not make a timely objection the defendant will never have their case completely addressed by a higher court.

What is the take-away from all of this?

If you are an attorney, make the objection even if you are over-ruled.

If you are a defendant, or a family member of a defendant, make sure your attorney knows the legal objections.

Remember—a timely objection is critical. Don’t leave it on the table.

TRANSITIONING IS A BITCH!

TRANSITIONING IS A BITCH!

It pulled me from a deep slumber, the sharp pain crushing my chest, spreading up to my throat and grabbing my jaw in a death grip. From there it spread down through my upper abdomen to my groin area, leaving my body in writhing pain.

Holy Christ! Was this the big one?

I tried to breathe through the pain, taking deep breaths, holding them and letting them out slowly. But no matter how much I tried to control my breathing it didn’t help. I took in the air as gasps and let it out in groans. The pain would not be appeased by my lowly attempts to control it with breaths.

I NEEDED AIR!

I staggered out of bed, only to be met with a wave of nausea, my undigested diner from the night before catching in my throat.

“What are the symptoms of a heart attack in women?” I kept asking myself as I staggered to my computer.

A quick perusal of http://Symptomfind.com I found an article by Dr. Tom Iarocci  from October 11, 2013, which gave me the list of symptoms which include:

1. ·         Angina: pain, discomfort, pressure or tightness in the middle of the chest that lasts for more than a few minutes or goes away and then comes back; sometimes mistaken for heartburn
2. ·         Pain or discomfort in upper body including arms, left shoulder, back, neck, jaw or stomach
3. ·         Difficulty breathing or shortness of breath
4. ·         Cold sweat or sweating
5. ·         Feeling of indigestion, choking or heartburn
6. ·         Nausea or vomiting
7. ·         Feeling dizzy, light-headed or extremely weak
8. ·         Feeling anxious
9. ·         Rapid or irregular heart beats

Hmm, close, but was it really a heart attack?

As it turned out, it was a warning shot over my bow.

My heart was reacting to the unrelenting stress of trying to transition from my law practice into being a full time author. I was doing neither well, and the stress of underperforming was wearing on me and my body.

My choice was clear—leave the practice of law—or DIE!

Whoa! Really? The choice was that clear?

Transitions are never easy. The stress of making the choice to make the leap can be incapacitating. Leave what I have known for more than 28 years, a career in which I have been very successful, and jump into a pond with so many wide-eyed dreamers, but with so many broken hearts and broken dreams?  

Today I took the first step. I swallowed my pride and put the courts and clients on notice—I am DONE!  I can’t do it anymore.

Whew—I get cold sweats just thinking about it. But, my heart doesn’t race when I think about the future. My heart remains calm when I write, and most of all no matter how difficult the transition, the alternative when it includes dying is a BITCH!

KNOW THE EARLY WARNING SIGNS!

TICKETS and CAR SEARCHES

By

MARY DE LA PEÑA, Esq. author of A Layman’s Guide to Criminal Defense

“Can the cops search my car after giving me a ticket?”

           

This is a question that comes up all the time by the public. Nothing is more bothersome than being held on the side of a busy highway to get a ticket that may, or may not be deserved. Then having the officer hold everyone while a dog sniffs the car, only to have the officer search the car, removing everything from the inside of the car, and go through a woman’s purse.

“Is this legal?”

On April 21^st of 2015, the United States Supreme Court gave a resounding answer to that question. The answer is:

NO!

It is no longer legal for officers to hold a person longer than it takes to issue a ticket—

UNLESS  you are ignorant enough to give the officer permission to search.

In United States v. Dennys Rodriguez, the United States Supreme Court decided that an officer cannot leverage a traffic stop into even a dog sniff. To do that is a violation of the Fourth Amendment to be free from unwarranted searches. The two exceptions are if you give them permission to search or  they have a clearly articulate reason to believe that the person they stopped has committed a crime and the evidence of that crime is contained in the car.

What does this mean to the general public?

It means that unless you give the officer permission to search your car, they cannot search!

So, if you are stopped by the side of the road, and the officer gives you back your registration, license, and ticket, and then says,

·         “Are you carrying anything illegal?

·         And do you mind if I check for myself?”

You need to answer loudly and clearly, but very politely,

“No, sir, I have nothing to hide, but you cannot search my car with or without the dog.”

You have every right now, as supported by the Supreme Court, to not have your car searched by the officer. But, remember, courtesy goes a long way in getting you back in your car, and traveling down the highway.

Remember, a traffic ticket is no longer an open door for officers to search your car, unless you give them permission to do so.

So, let’s all practice saying,

“No you may not search my car, and no, sir, I have nothing illegal in my car, but you still cannot search it.”

  

WHEN SILENCE IS NOT GOLDEN

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

            

Recently the Supreme Court Jesters, I mean Justices, turned on its ear the Miranda warnings and the “right to remain silent”  in a ruling that says if you don’t deny outrages statements it can be used against you—unless you’ve told the investigators you want a lawyer. Evidently staying silent is not enough!

          What???? 

 It’s called an “Adoptive Admission”—failure to deny an outrageous allegation is the same as admitting you did it.  Crazy, huh? After all, you’ve always been told to “shut up”, right? 

Well, here’s how this little piece of legal craziness is used:

PRETEXT PHONE CALLS:  The cops have the alleged victim of a crime call and request you apologize or “live-up to what you did”.  If you do not immediately deny what is being said the prosecutor can use that in court to prove that you did, in fact, do the crime!

COPS ACCUSE YOU: I love this one. The cop on the street accuses you of some crime, before giving you Miranda. If the accusation is outrageous enough—like “tell me why you murdered these four people”, and if you don’t immediately deny it, your failure to deny the accusation can be used against you in court to prove that you really did do the crime.

THE DETECTIVE ACCUSES YOU: This one is just as crazy. You’ve been asked to come to the station to “clear up a matter”.  After sitting in a interview room for at least a half hour, the detective comes in, sits down, faces you, says “you know you are free to go at any time, So, listen, Joe, we’re here to figure out why you molested that little girl”. This is said before Miranda warning is given. You are expected to get angry and deny, deny, deny, then ASK FOR A LAWYER! If you don’t deny, that failure to deny can be, and will be used against you in court.

Is this legal?

Evidently it is. Again, it is called an “adoptive admission” meaning if you don’t do something to deny what is being said, it can be used against you. The theory is that most humans will get angry if accused of a crime they did not commit. Thus your anger is expected, and if you don’t get angry, voilà—you are  guilty!

So, what should you do if faced with a similar situation?

Say, “I don’t know what you are talking about!” then hang up the phone, or demand a lawyer—then SHUT UP! 

Don’t get sucked into a shouting match, or call the person a psycho, or tell the detective to “f*** off”. Just say, “I don’t know what you’re talking about, and now I want a lawyer”. Everything after you say, “I want a lawyer” cannot be used against you. But, still, after asking for the attorney, BE QUIET.

Mary de la Peña, esq. has more than 28 years of experience practicing criminal law and is a name partner in Southern California’s prestigious De La Pena Law Office.

For more information on your Constitutional rights or if you have a question, call the De La Pena Law Office to order your copy of A Layman’s Guide to Criminal Defense.

COVER of my NEW BOOK,
MURDER MOST JUDGMENTAL

Maybe it is the stress of being a criminal defense lawyer, or maybe it's just a great story, but in my newest novel, Murder Most Judgmental, I felt the need to kill off a judge. Hmm, what does that say about me, a lawyer? Best leave that unanswered.

Since my last post, too much has happened. The publisher of A Layman's Guide to Criminal Defense, has started sending copies of the book to our inmate clients. As a result, some of the most difficult cases in the Inland Empire are now our files. These are the cases that break our hearts for everyone involved. 

First, our hears break for the victims of the crimes, and their families. To lose a loved one for what appears to be a senseless killing seems to be beyond comprehension. But, for our clients, to become so filled with hopelessness that murder seems to be the only way out. . . well, that too, seems to be hard to comprehend. Lastly, our hearts break for the families of the accused, as well as the families of the victims. These people are the true tragedies of the senselessness that surrounds murder.

So, please, pray for all of those involved. Pray that somewhere, somehow, sometime all involved my find solace and peace, and maybe forgiveness--no matter how long incoming.

PEACE OUT.

M.J. de la Pena

http://www.amazon.com/Laymans-Guide-To-Criminal-Defense/dp/1450773885 

THE LAW and JUVENILE JUSTICE

PAROLE for JUVENILE OFFENDERS

WHY THE CALIFORNIA SECOND APPELLATE DISTRICT GOT IT WRONG--AGAIN

In this last week the California Second District Court of Appeals had a chance to show they had cajones and allow defendants who were under the age of eighteen at the time they were sentenced to be re-sentenced using the guidelines set forth by the United States Supreme Court instead of hiding behind "sentencing laws".  But, no, they showed themselves for the cowards they are.  Instead of re-sentencing using the defendant's age, level of maturity at the time of the offense, as well as physical and mental maturity to determine an appropriate sentence, they again fumbled the ball, and pointed at someone else as being the problem instead of doing the right thing and allowing a new sentence in compliance with the rulings by both the California Supreme Court, and the head honcho Supremes in Washington D.C.

On October 29, 2013,  California's Second District Court of Appeals released an opinion regarding the re-sentencing of youthful offenders who were under the age of eighteen at the time of the offense and sentenced to prison for terms of imprisonment longer than most life-spans, thus running afoul of the United States Supreme Court's ruling on cruel and unusual punishment.  The court in the case entitled en re Bonilla (and in re Alatriste), held that imposing long sentences does not violate the Eighth Amendment, because the California legislature "fixed it" by enacting SB 260 which allows for parole hearings at a set period of time for those who have been sentenced for offenses committed while they were under eighteen.

Here's where the court dropped the ball again, and showed they are true sentencing cowards, run by a court of DA's in black robes who has never seen a kid they can't put away forever!  

The United States Supreme Court stated very clearly in Miller v. Alabama (2012); Graham v. Florida, (2010); and Roper v. Simmons, (2005) that a life without parole sentence for a juvenile offender is a violation of the eight amendment's prohibition against cruel and unusual sentencing.  The Supremes held that punishment should be graduated and proportional to the offender and the offense. The court recognized that children, and really kids under eighteen really are still children, do not have the same maturity as adults.  

Quoting from Roper and Graham, the court stated that children have a "lack of maturity and underdeveloped sense of responsibility, leading to recklessness, impulsivity, and heedless risk-taking".  And that children are "more vulnerable to negative influences and outside pressures," including that of families and peers; and that they have limited control over their environments; with their characters not being "well-formed".  

All of this shows that the highest court of the land finally understood what we defense lawyers, child advocates, parents, and social workers have been saying for years, children really are just children and act like children, even when committing horrible crimes, because they aren't fully developed mentally, socially, or emotionally!

The United States Supreme Court also said that based on the eighth amendment's need for graduated sentencing considering the offender, directed that anyone under the age of eighteen being sentenced must be evaluated and have the trial court consider objective factors such as the defendant's age, level of participation in the crime, social background and life experiences, mental capacity, and other prognosticators of the defendant's ability to conform during parole.

This sounds good, and the Supremes got it right.  But, and this is big but. . . the Second District again missed the boat for those who were sentenced prior to the decisions in Graham, Miller, and Roper.  This court said that because, SB 260 states that a defendant must go to parole board at 20 years or 25 years, this fixes the problem!

Are they nuts????  This only forces the issue, but does not fix it.  Instead, the court punted the ball and hoped that the notoriously unsympathetic parole board will set parole dates for kids with sentences of 50 years or 77 years or even 110 years! 

Yeah, right!  As if. . .  

For any of you out there who cares, care to respond to the most recent cowardice of the Second District?????

You want more law?  
See, A Layman's Guide to Criminal Defense, by Mary de la Pena  http://www.amazon.com/Laymans-Guide-To-Criminal-Defense/dp/1450773885