Major Criminal Case to Decide if Juveniles Strikes are Strikes

Interesting things are happening in the appellate courts regarding 3 strikes and the record of juveniles. It had been well established in California that juvenile strikes count as strikes in adult offenses. You can imaginge the impact of this! Juvenile cases are handled(generally) less aggressively than adult cases and criminal records are built up quickly. There is no right to a jury trial and cases are settled more with an eye towards rehabilitating the juvenile and trying to get them on the right track in life. The consequence is that they frequently end up with offense that are technically strikes.

A bright lawyer has brought a case(People v Nguyen) citing the lack of jury trial and the fact that the juvenile court acts as parens patriae. That is a Latin phrase that means that the court stands in the place of the parent and rehabilitates the juvenile in a way that the parent should. It is for that reason that juvenile courts are less adversarial, why certain rules of evidence don’t apply, and why juveniles are not entitled through the constitution to a jury trial. That concept is inconsistent with applying strikes.

How the Supreme Court of California will decide is unkown. But regardles of how they decide this will impacts thousands and thousands of cases. And, it will ultimately be heard as an issue in the United States Supreme Court.

Compelling Discovery Before the Prelim in Riverside County

Riverside County can be a difficult place to be charged with a crime and get adequate justice. A recent article in the Los Angeles Daily Journal reported that a grand jury faulted the Riverside County District Attorney for causing major backlogs in the courts. We submit that these problems have caused a real problem with adequate justice for anyone charged with a crime. Riverside County causes major headaches for criminal defense lawyers and major injustice and costs for those accused. One of the problems is getting adequate discovery before the preliminary hearing so that you can properly prepare your case. A standard refrain from the prosecution is that you are not entitled to discovery prior to the preliminary hearing. This results in a culture of non disclosure that stretches from the district attorney’s office to the law enforcement agencies.

You are entitled to discovery before the preliminary hearing. If a DA resist your request and the information is important you should have your lawyer bring a motion. The following are actual excerpts from a motion brought in Riverside County to get medical records of an alleged victim that the DA’s office refused to provide. The motion was successful. It was filed, a hearing was set, and the DA decided to provide the information. These are parts of the Points and Authorities only.

THE PROSECUTION IS REQUIRED TO DISCLOSE INFORMATION TO THE DEFENDANT IN POSSESSION OF THE PROSECUTING ATTORNEY OR IF THE PROSECUTING ATTORNEY KNOWS IT TO BE IN THE POSSESSION OF THE INVESTIGATIVE AGENCIES

Under the reciprocal discovery scheme of Proposition 115, the prosecuting
attorney “shall disclose to the defendant or his attorneys…material and information, if it is in possession of the prosecuting attorney or if the prosecuting attorney knows it to be in the possession of the investigating agencies.” (Pen. Code section 1054.1) Any favorable evidence known to the other investigative agencies acting on the government’s behalf is imputed to the prosecution. (In re Brown (1998) 17 Cal.4th 873, 879, [72 Cal.Rptr.2d 698].) “The individual prosecutor is presumed to have knowledge of all information gathered in connection with the government’s investigation. Thus, the prosecution is responsible not only for evidence in its own files but also for information possessed by others acting on the government’s behalf that were gathered in connection with the investigation.” (In re Steele (2004) 32 Cal.4th 682, 697, [10 cal.rptr.3d 536].)

DEFENSE IS ENTITLED TO STATEMENTS AND REPORTS
THAT ARE RELEVANT AND FAVORABLE TO THE DEFENDANT

Under the Proposition 115 reciprocal discovery scheme the prosecutor is required to disclose to the defense any relevant reports or statements of experts made in conjunction with the case, including the results of physical or mental examinations, scientific tests, experiments, or comparisons which the prosecutor intends to offer in evidence at trial. The Federal Constitution requires the disclosure of statements or reports of experts the prosecutor does not intent to call at trial, if those statements or reports provide substantial material evidence favorable to the defendant. (In re Brown (1998) 17 Cal.4th 873 [72 Cal.Rptr.2d 698].)
The prosecutor is also required to disclose any evidence that would tend to exonerate the defendant, minimize probable sentence, or that constitutes information the defense might use to impeach or contradict prosecution witnesses. (People v. Brady (1963) 373 U.S. 83 [83 S. Ct. 1194, 10 L. Ed. 2d 215].) Brady discovery includes information that relates to the existence of evidence tending to suggest that someone other than the defendant committed the crime charged against the defendant.
“A prosecutor has a duty to search for and disclose exculpatory evidence if the evidence is possessed by a person or agency that has been used by the prosecutor or the investigative agency to assist the prosecution or the investigative agency in its work.” (Barnett v. Superior Court (Butte) (2006) 146 Cal.App.4th 344, 365, [54 Cal.Rptr.3d 283, 299].)

DEFENSE COUNSEL IS ENTITLED TO THE REQUESTED
MATERIAL PRIOR TO THE PRELIMINARY HEARING
Defense can bring a motion to compel discovery before the preliminary hearing of materials and information that go to an affirmative defense, evidence that might negate an element of the crime, and evidence relevant to the impeachment of a prosecution witness. Proposition 115 codified the defendant’s preexisting right to present such evidence at the preliminary hearing and the defendant has a substantial right to obtain evidence on these issues through discovery before the preliminary hearing. (Holman v. Superior Court (1981) 29 Cal.App.3d 1302, 1310, [246 Cal.Rptr. 775].)
defense might use to impeach or contradict a witness for the People falls under “Brady” discovery. The exam performed on Doe by the Children’s Justice Center may contain such information. If Doe testifies at the preliminary hearing to certain facts regarding any alleged sexual abuse, any alleged injuries, or any fact related to the examination itself or results there from, defense will seek to impeach her using the medical report as a basis. Also, it is necessary the defense have access to this report prior to the preliminary hearing as it is important information to gauge in light of the evidence. The results of the medial examination will better guide the defense in determining possible defenses and case strategies.

Defending Gang Allegations

Sentencing enhancements are allegations that are added to the charging document in order to increase a defendant’s maximum potential sentence as a result of his/her prior record, use of some form of weapon in the current offense, or the fact that serious or great bodily injury resulted from the criminal conduct. While obviously serious, these allegations are usually resolved during the investigation, disposition, or litigation of the underlying facts of the case. In contrast, the “gang enhancement” outlined California Penal Code Section 186.22(a)-(j) seeks to add substantial additional prison/jail time under the argument that the current crime was committed to further “gang” activity. This calls into question the defendant’s prior life history and can seriously complicate the defense of even the simplest of felony charges.

The California gang statute has often been referred to as “bulletproof” by defense attorneys that do not have the required experience and/or insight into how to challenge this difficult issue. As a result, some attorneys “throw in the towel” almost immediately into any case wherein they see the gang enhancement alleged. In reality, it is only a small number of cases wherein the use of the gang statute is not vulnerable to some form of challenge. These are cases wherein the prosecution has a legitimate gang with a longstanding prior history; an actual gang member that has a long history of claiming and/or acting on behalf of that gang; and an underlying crime that clearly was committed to benefit that gang. Until the prosecution limits their use of this statute to just those cases and stops trying to incorrectly leverage larger sentences through the misuse of this statute in all other cases, an experienced defense attorney can successfully challenge the use of this statute against their client.

There are three general ways to challenge the use of the gang statute against a particular defendant. The first focuses specifically on the application of this statute to a specific defendant based upon his prior criminal history and/or actual gang history. The second relates to the prosecution’s use of the “gang expert” in order to improperly fill in factual holes in their case with “expert predictions” regarding gang behavior. And the third focuses specifically on conflicts or inconsistencies between past and current testimony of the particular “gang expert”.

Defendant Specific Challenge

This form of attack focuses specifically on the application of the gang statute to a particular defendant. Where the prosecution has alleged that the defendant is a gang member, the defense seeks to portray the defendant as undocumented, an associate or acquaintance of some members of the particular gang, or someone who has long ago given up actual gang involvement. Under any of these arguments, the particular defendant would not be a proper target for the gang statute.

Undocumented Gang History
The defendant has no prior documented prior history of gang involvement and while may have been around actual gang members at the time of the offense, he was not involved for the benefit of the gang. An example of this would be the situation wherein an undocumented defendant is at a party or gathering with other defendants who may be documented gang members. While there some form of altercation breaks out as a result of something that had absolutely nothing to do with the gang. But because some of the parties on either side of the altercation may have been gang members, it is charged as a gang offense.

Focus: Complete lack of gang documentation history. Underlying offense can be attributed to some facts/purpose that was not specifically intended to benefit a particular gang.

Gang Associate
The defendant knows or occasionally hangs out with persons who are known documented gang members. However, he is not an actual documented gang member and his involvement in the charged offense was not intended for the benefit of a particular gang. An example of this would be the situation wherein a defendant with no prior gang history gets arrested with two other documented gang members during the commission of some form of robbery or burglary. In this instance, the defendant would be little more than an occasional associate and the actual underlying crime was one of opportunity intended to result in the acquisition of stolen money or property and not simply the furtherance of some specific gang. More often than not, the prosecution pays far too little attention to the distinction between a simple gang associate versus a truly hardened and documented gang member.

Focus: No true gang documentation history. Instead, a short or uneventful history of being around gang members occasionally while living in a particular neighborhood. Underlying offense can be attributed to some facts/purpose that was not specifically intended to benefit a particular gang.

Retired Gang Member
The defendant was once long ago documented or active in a particular gang. However, he has not been documented as active for a long time and was simply involved in an incident that may have involved other gang currently active gang members. Using the same party example as discussed above, a long ago retired gang member becomes involved with other current gang members in a serious altercation that arose as a result of some issue at the party that had nothing to do with gang activity (i.e. a woman). In this instance, the defense must focus the attack on the fact that once documented as a gang member, it is nearly impossible to be removed from that classification.

Focus: No true gang documentation history for a long period of time prior to the current allegations. Underlying offense can be attributed to some facts/purpose that was not specifically intended to benefit a particular gang.

Expert Testimony Challenge

Unlike the defendant specific challenge discussed above, this challenge focuses on whether the prosecution intends to properly use gang expert testimony. Or instead, they intend to misuse such testimony to fill in factual gaps in their case with “expert predictions” on gang activity. Here, the argument focuses on the fact that “gang experts”, unlike most true scientists or doctors, are offering testimony that has no basis in some form of true science, psychology, or sociology. Instead, “gang experts” are usually cops who are seeking to offer expert testimony that would allow them to speak to far more issues than normally admissible. The only properly admissible purpose for such testimony is the situation wherein the testimony is intended to help the judge or jury understand significance of evidence and put it in context of gang behavior/custom. This form of testimony is completely improper where the “gang expert” seeks to fill in factual gaps or leap to conclusions that suggest he/she can accurately predict individual gang member behavior at any given time simply based upon his training and experience.

Expert Specific Challenge

This challenge focuses specifically on a particular “gang expert’s” opinion and how it conflicts with prior testimony he/she has given on same or similar issues in the past. More often than not, experienced attorneys are well acquainted with the prior history and opinions of particular “gang experts” that are regularly used by the prosecution. And when defense attorneys have done their homework on a particular expert, he/she may well find prior cases wherein this particular expert has said or done something that conflicts with their current opinion or the current position they are taking as to the defendant. Or even better, they may be aware that a particular “gang expert” will say or do anything in order to protect “his/her” case.

In closing, there is no such thing as a case wherein some form of challenge cannot be levied on behalf of a particular defendant. However, the success of any challenge will be limited to the experience and/or background of your particular defense attorney. It for this reason that careful selection of an attorney with the proper experience/background is essential when facing the serious penalties created by the California gang statute.

Bruising Can Tell A Story | Domesitic Violence Charge

Domestic Violence

A lot of times when accusations are made that the defendant committed a violent act against another, the alleged victim claims that various bruises and other marks on the body were caused by the defendant. Usually they claim that these bruises are evidence of a beating or some criminal restraint of them so they couldn’t escape or get away from the defendant. You see these accusations a lot where women are accusing men, and that’s why an experienced criminal attorney is needed.

The problem is that bruises look bad. In fact they look worse than they really are many times. Bruising is a fact of life in physical activity and many times women bruise very easily. Many times a mad female alleged victim will allege that every mark on her body was caused by a defendant unlawfully. And, many times these allegations are exaggerated, false, and the result of a wild sexual encounter before things degenerate into anger and accusation. Many times these marks are the result of a woman going “crazy” during an alcohol induced domestic argument: self inflicted by flailing around or caused when the defendant attempts to restrain and calm her down. That is not always the case but if you as the defendant are the victim of false or exaggerated accusations it merits carefully exploration by an expert. Oftentimes the bruises tell a story that is different than what the alleged victim says happened.

Attorneys experienced in violent crimes have seen how frequent false and overblown accusations can surface in encounters between men and women. A trained attorney who has experience with pathology and the study of body marks can see the subtle signs that demonstrate a false accusation. These body marks when studied closely can tell a story. Their color can tell us when they happened(or didn’t happen!,) their shape or lines within them or along the edges can tell what kind of instrument caused them. Was it caused by a thumb, fingers, an elbow, a fist, a table edge, a counter top, a door frame, or some other important fact to know that will corroborate the version of the defendant.

And, was it even caused when the alleged victim says it was. As an example, in one case, of alleged attempted rape by a mad ex boyfriend, the body of the alleged victim was covered with over 50 bruises. These marks enraged the deputy district attorney and they wanted to put the defendant away for a long as possible. The defendant said that the alleged victim was lying and that she not only bruised easily and often, but had gone out on a binge for days before the alleged incident.

An expert was able to conclude, from some medication records, that she did have a blood condition that caused her to bruise easily. More importantly the colors of many of the bruises had different colors indicating that various groups of the bruises occurred on different days. Some were as old as 4 or 5 days before the defendant allegedly attempted to rape her and beat her. Ultimately, the deputy district attorney understood, and the defendant was given a felony reducible to a misdemeanor and a year in local custody. There were aspects of his case that warranted punishment but not on the most serious charges.

In another recent case an attorney had a situation where an alleged victim claimed the defendant had hit her in the eye with his fist. The marks were “ugly” and were part of some other very serious charges. She claimed that photographs taken of the eye happened on a particular date. The attorney noticed that the “black eye” was very yellow and consulted a trained pathologist who concluded that the eye injuries were probably several days older than possible under the date frame that the alleged victim claimed.