Criminal Law Section

News from the Section

Upcoming Criminal Law Section Webinars

Webinar: "Do's and Don'ts" of Corporate Internal Investigations

WebinarWednesday, April 17, 2013, 12 noon - 1 p.m. (Pacific)

This program offers 1 hour Participatory MCLE Credit and 1 hour Legal Specialization in Criminal Law. You must register in advance in order to participate.

Companies are under increasing pressure to investigate and self-report allegations of corporate misconduct.  As government agencies become more aggressive in investigating allegations of corporate fraud and abuse, an unprepared company may unwittingly find itself mired in obstruction of justice charges because initial protective steps were not taken to identify and preserve potential sources of evidence and to establish the independence of the company’s decision-makers regarding the alleged misconduct.  This webinar covers the basic "Do's and Don'ts" for planning and conducting sensitive internal investigations into potential wrongdoing. With speakers Vince Farhat and Stacey Wang, Holland & Knight.

Webinar: Conducting Direct Exam Like a Veteran

Wednesday May 15, 2013, 12 noon- 1 p.m.

WebinarThis program offers 1 hour Participatory MCLE Credit and 1 hour Legal Specialization in Criminal Law. You must register in advance in order to participate.

This webinar will focus on fine-tuning direct examination: from uncooperative witnesses to inconsistent witnesses to handling children on the stand. The program will also include how to appeal to a jury through direct examination, how to tell a compelling story through your witness, and when to conduct redirect.  This webinar will appeal to newer attorneys and also those with experience who need some fresh ideas to use in the courtroom.With speaker Julia M. Jayne.

Webinar: Defending Domestic Violence & Restraining Orders: Tips of the Trade

Thursday, June 6, 2013, 12 noon - 1 p.m.

WebinarThis program offers 1 hour Participatory MCLE Credit and 1 hour Legal Specialization in Criminal Law. You must register in advance in order to participate.

Every criminal law practitioner should be skilled in handling domestic violence cases and this webinar is essential for anyone representing those charged with domestic violence, stalking, and other domestic-related offenses. We will discuss pre-trial practice, how to manage cooperative or uncooperative domestic violence victims, and cross examination skills in DV cases.  Additionally, this webinar will cover what to do in those instances where there are parallel civil restraining order proceedings. With speaker Julia M. Jayne.

Webinar: Preparing and Presenting Expert Witnesses

Wednesday, June 12, 12 noon - 1 p.m.

This program offers 1 hour Participatory MCLE Credit and 1 hour Legal Specialization in Criminal Law. You must register in advance in order to participate.

Practical tips on how to investigate your case, identify what expert witnesses are needed, selecting and retaining the experts, providing them information, communicating with experts, and preparing them to testify at trial.  We will also present some sample questions and answers for a direct examination of a forensic psychologist.

Speaker: Michael Begovich

Webinar: Criminal Appellate Practice 101

Thursday, June 27, 2013, 12 noon - 1 p.m.

WebinarThis program offers 1 hour Participatory MCLE Credit and 1 hour Legal Specialization in Criminal Law. You must register in advance in order to participate.

This program is designed for those who are new to appellate practice, or for trial lawyers who are interested in handling appeals. The program will cover both the procedural aspects of appellate practice as well as the basics of drafting a brief. Though the course is geared to the criminal practitioner, civil litigators will also find the program useful. The program focuses upon problem areas in handling criminal appeals, such as waiver/forfeiture of issues, certificates of probable cause, and demonstrating prejudice. The brief writing discussion includes an overview of the required brief contents, as well as suggestions for drafting persuasive appellate arguments. Common and recurring ethical issues in representing appellants are also discussed.With speaker Timothy Warriner.

Sentencing Manual - March 2013 Update

The Section is pleased to present the Sentencing Manual prepared by Gary Mandinach of the California Appellate Project, revised March 2013.

Gary has also prepared Reported Three Strikes Opinions as of March, 2013.

Lawyer Beware: Kickbacks From Deposition Firms Expose Law Firms And Lawyers To Possible I.R.S.Tax Penalties

By  Stephen J. Walwyn, Esq.

Booking a deposition with a licensed court reporter should not expose lawyers or law firms to possible tax problems. However, the way some court reporting firms entice business may entangle lawyers and law firms with the Internal Revenue Service as well as the Franchise Tax Board.

Most lawyers don’t realize that some court reporting providers vigorously market their services to the secretaries, legal assistants, and paralegals who frequently select which court reporting provider to use. Some court reporting providers regrettably go so far as to offer kickbacks to law firm employees in exchange for bookings. These kickbacks – often entirely unknown to lawyers or law firm managing partners -- can be of significant value: cash and gift cards, spa treatments, tickets to major Broadway plays, bottles of expensive champagne, airline tickets and free condominium stays, contests with valuable prizes awarded.

While the court reporting providers style these valuables as "gifts," both practically and as a matter of tax law they are not gifts but payments for services. As confirmed by a recent, thorough analysis by counsel at Hanson Bridgett, the law deems these valuables to be compensation paid to a lawyer’s or law firm’s employee in exchange for services provided; namely, giving the lawyer’s or law firm’s business, often exclusively, to one court reporting provider.

The valuables that raise tax issues are specifically offered as quid pro quos: valuable items offered and delivered in exchange for the scheduling of reporting business. Further, even if the kickback is characterized as a prize, award or as points, the Internal Revenue Code specifically includes amounts received as prizes and awards in gross income unless the prize or award is transferred directly to a charity.

Read the full article HERE.

An Updated Credit Calculation

By Chris Honigsberg, Deputy District Attorney, Sonoma County

Introduction

Recently, there have been several appellate rulings about the application of custody credits.  The rulings help to clarify some of the confusion surrounding the application of credits.  It is helpful to look at the following three cases together to get some clarity in the application of credits.

Cases

In People v. Hul, (2013) 213 Cal. App. 4th 182, the defendant was arrested for H&S 11350 in May, 2011.  In October 2011, the defendant was convicted at trial.  Later the same month, October 2011, the defendant was sentenced.  The defendant remained in-custody from his arrest through trial and sentencing.

At the time of sentencing, the defendant was given a sixteen month “prison” sentence.  Due to the Realignment Act, pursuant to PC 1170(h), the defendant was sentenced to serve his sixteen month “prison” sentence in the county jail.

At the October 2011 sentencing, the defendant was given presentence credits of two days for every four days actually served.  This was because despite a sixteen month sentence, the sentence was to be served in the county jail.  The trial court believed the law provided four-two credits for any sentence served in county jail.  This was likely due to the changes in former sections 4019 and 2933.

The appellate court found this to be an error.  The appellate court clarified the law of sections 4019 and 2933 and stated that a prison sentence, even one served in county jail, is given prison credits of day-for-day when the crime is committed between September 28, 2010 and September 30, 2011.  Therefore, the defendant in this case had 156 actual days plus 156 conduct credits for a total of 312 days rather than the erroneous initial calculation of 156 actual days plus 78 conduct credits for a total of 234 days.

In People v. Tinker, (2013) 212 Cal. App. 4th 1502, a case similar to People v. Hul, the defendant was convicted of violations of H&S 11379, 11378 and 11370.2(c).  The crime occurred in February 2011.  The defendant was sentenced to five years in prison.  The Appellate Court held that the defendant was entitled to day-for-day presentence credits because he received a prison sentence and the September 2010 versions of section 2933 and 4019 were in effect at the time of the crime.  Therefore, the court ordered the defendant receive 100 additional days of presentence conduct credit.

The Tinker Court also addressed the issue of granting conduct credits.  The Court stated that when the trial court grants conduct credits at the time of sentencing, it is not up to CDCR to decide whether the defendant behaved such that he should receive presentence conduct credits.  The Court granted conduct credits prior to sending the defendant to prior and therefore the defendant was eligible for those conduct credits.

In People v. Torres, (2012) 212 Cal. App. 4th 440, the defendant was convicted in Sonoma County for H&S 11378 and given a two year prison sentence.  A the same time, the defendant had pending cases in neighboring Mendocino County.  While serving the two year prison sentence from Sonoma County, the defendant entered a guilty plea in Mendocino County to charges and a probation violation totaling four years and eight months prison.  The Sonoma County case was to be modified from a two year prison sentence to eight months consecutive for a total of five years and four months prison.

At the time of sentencing, the Mendocino County Court did not award the defendant credits for the time the defendant was pending sentencing in Mendocino County.  The thought was that the defendant was serving a two year Sonoma County sentence and therefore he was not eligible for credits on any of his Mendocino County cases.  The Appellate Court disagreed.  That court ruled that when the Sonoma County sentence was modified from two years to eight months, any credits that exceeded the eight months for the Sonoma case should be applied to the Mendocino case sentence of four years and eight months.

Conclusion

While the application of custody credits has undergone multiple changes in the last couple of years, having the opportunity to look at a grouping of some of the recent appellate court decisions helps to simplify the application of credits.  Based on these cases, it is important to look at the offense date, but also at the plain language of the sentence rather than the institution in which the sentence is served.

The Consequences of the Supreme Court's decisions in Lafler and Frye: Ineffective Assistance of Counsel in Plea Negotiation

By Timothy E. Warriner, Attorney at Law

The Supreme Court’s decision in Lafler v. Cooper, 132 S. Ct. 1376 (2012), has resulted in an increase in “Lafler claims,” alleging ineffective assistance of counsel concerning plea negotiation. Lafler, and the companion case, Missouri v. Frye, 132 S. Ct. 1399 (2012), affirmed that defendants have a right to effective representation during plea bargaining, and that counsel has a duty to timely and effectively communicate all plea offers to the client.

Lafler permits a defendant to allege in post-judgment proceedings that his attorney failed to provide adequate representation concerning a plea offer by the prosecution. Defendants rejecting a pre-trial plea offer, and who get a longer sentence following conviction after trial, may file a Lafler claim. A successful Lafler claim will result in the judgment after trial being vacated, and the defendant being permitted to plead guilty pursuant to a previously made plea offer. Lafler claims are being made with increasing frequency in federal and state post-judgment writ proceedings.

The Supreme Court in Lafler and Frye recognized the potential for an increase in post-judgment claims. The court in Frye set forth “some measures to help ensure against late, frivolous, or fabricated claims after a later, less advantageous plea offer has been accepted or after a trial leading to conviction with resulting harsh consequences.” One measure is that formal offers be made part of the record before trial. Other measures rely on a formalization of the plea negotiation process to place matters within the record.

Changes in Practice Due to Lafler and Frye

We are now starting to see changes in practice as a result of Lafler and Frye. In federal courts, some prosecutors have moved for the court to conduct a “no-plea colloquy,” and to engage in ex parte oversight of the plea process. A “no-plea colloquy” results in the court engaging in a discussion in open court in which defense counsel describes the offer received from the prosecution and the defendant confirms for the court that the offer was communicated and understood. A request for ex parte oversight would require the defense attorney to file a declaration under seal setting forth the plea offer, the advice given to the defendant, and the defendant’s position concerning the plea. Courts and defense counsel may resist these procedures on the ground that they improperly involve the court in plea negotiations, and intrude upon confidential client matters. The filing by the prosecution of a formal plea offer as part of the docket would obviate these concerns and help create a clear record of the offer made.

The Sacramento County District Attorney’s office has announced the adoption of a practice aimed at preventing unwarranted Lafler claims. Pursuant to this practice, a Deputy District Attorney will state the plea offer on the record in open court in the defendant’s presence when an offer is being rejected. The suggested language for this process is: “For the record, the offer is __. After [date / setting / court event], the offer will be revoked. The maximum exposure if convicted is ___.” Defense counsel should anticipate changes in practice similar to that used by the Sacramento District Attorney’s Office in other counties.

Defense Counsel’s Response to a Lafler Claim

Defense counsel facing a Lafler claim should be careful not to breach attorney-client confidentiality. While defense counsel may be frustrated or even angry to learn about a client’s Lafler claim, the client’s interests are of paramount concern.

Defense counsel should be aware of American Bar Association formal opinion 10-456, addressing the disclosure of information to prosecutors when the lawyer’s former client brings an ineffective assistance of counsel claim. The opinion concludes that disclosure of client confidences should be supervised by the court, and that the “self-defense” exception to attorney-client confidentiality does not permit defense counsel to reveal client confidences, ex parte, to the prosecutor. The opinion provides that “it is highly unlikely that a disclosure in response to a prosecution request, prior to a court-supervised response by way of testimony or otherwise, will be justifiable. It will be rare to confront circumstances where trial counsel can reasonably believe that such prior, ex parte disclosure, is necessary to respond to allegations against the lawyer.” Thus, defense counsel should be circumspect in responding to a prosecutor’s request for information about the communication of a plea bargain, or advice given concerning a plea offer. The appropriate response, in light of ABA opinion 10-456, would be to have the prosecutor obtain a court order regulating the scope of disclosure, or for counsel to testify at a proceeding supervised by a judicial officer. The client should be made aware of the potential for exposure of the confidences, and should be given an opportunity to object or withdraw the Lafler claim.

"4th Waiver" Searches

By Dana M. Grimes, Esq., Grimes & Warwick, San Diego, CA

There are many of thousands of people with so-called “4th waivers,” a common condition of probation, parole, and pre-trial release ordered by judges in criminal cases. The term “search condition” is more accurate than “4th waiver.” These days, most officers in the field have very quick access to databases showing whether a suspect is on a list of people with search conditions.

There are additional hundreds of thousands of people impacted by these search conditions because they have a family member or roommate or friend with a “4th waiver.”  However, the shorthand phrase “4th waiver” is not an entirely accurate way of describing the condition that allows law enforcement to search the person, property, place of residence, vehicle or personal effects of a defendant without probable cause or a warrant.  A “4th waiver” is not a waiver of all Fourth Amendment search and seizure rights, some residual rights do apply.  For instance, in People v. Garry (2007) 156 Cal.App.4th 1100, the Court of Appeal held that although the defendant was on parole at the time of his detention and could lawfully be searched pursuant to his parole conditions, his detention was unlawful because the officer was not aware that he was a parolee until after the detention began, and there were no specific and articulable facts justifying his detention.

On a related note, a recent and colorful case holds that a mere passenger in a vehicle, lacks the “common authority” over the vehicle which would allow him to either consent or object to its search; thus, the parole status of such a passenger cannot be relied upon as the basis to justify the search. People v. Schmitz (2010) 114 Cal.Rptr.3d 490, review granted, previously published at 187 Cal.App.4th 722. Or, as Acting P.J. Bedsworth of the Fourth Appellate District, Div. Three, mused:

Distinguishing between friends and enemies can sometimes be more problematic than would be expected . . . Schmitz was convicted of four misdemeanors, based on a search premised on the parolee status of a passenger in his car. He must have had difficulty figuring out in which column -- friends or enemies -- he should list that passenger.People v. Schmitz (2010) formerly at 187 Cal.App.4th 722 (review granted).

The Court held that the parolee status of the front seat passenger does not validate a warrantless search of the backseat area, as the parolee sitting in the front passenger seat cannot be viewed as having joint access and control over the back seat.

Federal Law on Fourth Waivers

In U.S. v. Knights, 534 U.S. 112 (2001), the defendant was placed on probation by a California court for a drug offense, with conditions including the condition that he submit to a search anytime, with or without a search warrant or reasonable cause, by any probation officer or law enforcement officer. A sheriff’s detective, who knew that Knights was on probation with a search condition, searched Knights’ apartment, and the search resulted in Knights being convicted of conspiracy to commit arson, possession of a destructive device, and felon in possession of ammunition. The District Court granted Knights’ motion to suppress evidence, holding that although the detective had reasonable suspicion to believe that Knights possessed incendiary materials, the search was for “investigatory” rather than “probationary” purposes. The Ninth Circuit affirmed the suppression of evidence.

The U.S. Supreme Court reversed, holding that the search was supported by reasonable suspicion and authorized by a probation condition, and nothing in Knights’ probation conditions limited searches to those with “probationary” purposes, and nothing in the Fourth Amendment imposes such a restriction.

In Samson v. California, 547 U.S. 843 (2006), the Supreme Court upheld suspicionless searches of parolees. The Court reasoned that parolees have “severely diminished expectations of privacy” and “are more akin to prisoners than probationers.” Id. at 850. In both Knights and Samson, the Supreme Court rested its decision on the diminished expectation of privacy that probationers and parolees enjoy, and declined to reach the issue of whether the “consent” or “special needs” exceptions to the warrant requirement would justify the searches.

Conclusion

There is a tendency for both prosecutors and defense lawyers to assume that a search condition is legal, but that is not always the case. These cases must be analyzed on a case by case basis, looking at the underlying case that is the basis of the limitation of Fourth Amendment rights, the language of the search conditions, and the facts surrounding the search conditions that has resulted in the evidence that is sought to be admitted against the defendant in his new case.

The Sections and CYLA Are on Facebook and Twitter

Social media, anyone? The Sections and the California Young Lawyers Association (CYLA) now have a page on Facebook and a new Twitter account, where we can keep you up-to-date on our latest news and events.

We're also looking forward to interacting with a wider community and reaching out to people who are not currently members.

We invite you to "Like" us and follow our "Tweets."

And by the way, the CYLA definition of "young" is any California attorney under the age of 36 or in their first five years of practice.
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Get Online Participatory MCLE Credit from the Criminal Law Section

Get your MCLEs online! View Criminal Law Section programs over the internet for participatory MCLE credit. Choose from 45 Criminal Law programs at both modem and broadband connection speeds. These can be downloaded at www.calbar.org/online-cle.

Recently added to our catalog:

Among the courses offered from the Criminal Law Section are:

  • Credibility and Character Evidence
  • Eliminating Bias in the Jury Selection Process: Tips & Tactics in Criminal & Civil Trials
  • Ethical Considerations for Prosecutors and Criminal Defense Attorneys
  • Following Your Conscience Without Losing Your Head
  • Hate Crimes After 9/11: Where Do We Stand
  • He Said! She Said! Hearsay Rules and Objections
  • Jury Selection: Tips and Tactics in Criminal and Civil Trials
  • Legislative Update: New Laws for 2002
  • Motions in Limine: Win Before You Begin
  • Narc, Narc...Who's There?
  • The Innocence Project: When the Criminal Justice System Fails
  • Using a Language Interpreter

In addition, Versa-Tape Company has a large library of audio cds and dvds of educational programs sponsored by the State Bar of California and all of the State Bar Sections. For a detailed list of available Criminal Law programs, call 626-791-8907, 800-727-8883 or visit versatape.com.

Save Money with CEB

CEB Discount Program for Section MembersContinuing Education of the Bar, California (CEB) is extending some special discount offers to our section. As a member of the Criminal Law Section, you're eligible for:

  • 10% off selected CEB print or online books
  • rebate on your section dues that can be applied to the cost of a CEB Gold CLE Passport or a CLE program ticket

 A complete list of the products eligible for a discount is available on a CEB web page accessible through our Members Only Area. Information about the section dues rebate program can be found on the CEB Web site.

Contact Us

 Criminal Law Section
The State Bar of California
180 Howard Street
San Francisco, CA 94105-1639
415/538-2568
415/538-2368 fax