Category: Blog
Often times, the District Attorney alleges one of your client’s prior convictions for purposes of enhancing the sentence under the alternative sentencing scheme of Penal Code section 667 (b)-(i) and 1170.12, otherwise known as the “Three Strikes Sentencing Scheme”[1]. Sometimes, the allegation is made with little or no research by the prosecuting agency, e.g., they simply rely on your client’s “rap sheet”.
The government on a finding of proof beyond a reasonable doubt must prove strike priors, just as the charged crime. (People v. Tenner (1993) 6 Cal.4th 559, 566.) Often times a plea bargain contemplates that our clients “admit” the strike prior. Whether by a way of plea disposition or trial, it is imperative that competent defense counsel independently research the strike prior to determine if the prosecutor can legally prove it. (In re Brown (2013) 218 Cal.App.4th 1216.)
A growing trend in the Los Angeles District Attorney’s Office appears to be exclusive reliance on “969b”[2] prison packets. These certified documents include the defendant’s fingerprints, a photograph, and the Abstract of Judgment of the prior conviction, among other things. Sometimes, this may be the only official document still in existence.[3] 969b packets alone are insufficient for purposes of establishing a prior strike allegation and should be challenged.
The Law
Prison packets and Abstracts of Judgment have never been held to be sufficient for purposes of proving the nature of the prior conviction, to wit, whether the prior conviction qualifies as a strike.[4] The following traces the case law as it pertains to proving the nature of prior convictions.
In People v. Colbert (1988) 198 Cal.App.3d 924, the Second Appellate District held that a trial court may properly consider the prior accusatory pleading in conjunction with other relevant court documents in determining the truth of an allegation that a defendant was previously convicted of the serious felony of “burglary of an inhabited dwelling house” (the nature of the prior conviction).
Then in People v. Guerrero (1988) 44 Cal.3d 343, the Supreme Court was a little more definitive in what it defined as the “record of conviction” and ruled that it includes “an accusatory pleading charging a residential burglary and [the] defendant’s plea of guilty or nolo contendere.” (Guerrero, at p. 345.) Two years later in People v. Gomez (1990) 219 Cal.App.3d 157, the Fifth Appellate District held that the information charging defendant with residential burglary together with the abstract of judgment showing his plea of guilty constituted admissible evidence sufficient to establish the residential nature of the prior alleged 459. A few years later, the Supreme Court in People v. Trujillo (2006) 40 Cal.4th 165 held: “[A] reporter’s transcript of a preliminary hearing is a part of the record of a prior conviction within the meaning of the rule announced in Guerrero.” (Trujillo, at p. 177.) The Trujillo Court stated “[I]n determining the truth of a prior conviction allegation, the trier of fact may `look beyond the judgment to the entire record of the conviction’ [citation] `but no further.‘ ” (Trujillo, supra, 40 Cal.4th at p. 177, citing Guerrero, supra, 44 Cal.3d 343, 355-356.)
In short, no California case has held that a 969(b) packet or the Abstract of Judgment alone is sufficient competent evidence to prove the nature of the prior conviction. The only case addressing the 969(b) packet’s sufficiency in proving a prior is People v. Tenner (1993) 6 Cal.4th 559. But that case dealt specifically with the issue of whether an abstract of judgment and a state prison commitment form constitute sufficient evidence to support a finding that a defendant completed a prior prison term for purposes of imposing the one-year enhancement provided in Penal Code section 667.5.
Defense counsel must independently research and obtain what records area available to determine the viability of the prosecution’s allegation that the defendant suffered a prior conviction within the meaning of the Three Strikes law. Effective assistance of counsel requires no less. (In re Brown, supra, 218 Cal.App.4th 1216; Strickland v. Washington (1984) 466 U.S. 668.)
Angela B. from Los Angeles, CA is a member of the Attorney Referral Service (ARS) of the San Fernando Valley Bar Association (SFVBA).
To learn more about the information provided above or for questions about the above content, contact us at at 818-340-4529.
[1] Even if the defendant suffered only one prior “serious” or “violent” felony, as defined respectively in Pen. Code section 1192.7 (c) and Pen. Code section 667.5(c), he/she also falls within the “Three Strikes” alternative sentencing, even though the defendant faces the doubling of the otherwise imposed sentence rather than 25 to life.
[2] Pen. Code section 969(b).
[3] Los Angeles County recognizes that court reporters’ transcripts from prior to January 1, 1984 have been purged and can not be re-created.
[4] In fact, Pen. Code section 969b itself states that the prison packets only establish “prima facie evidence of the fact that a person being tried for a crime or public offense under the laws of this State has been convicted of an act punishable by imprisonment… .
In clients with suspected or complained of head injuries, as with all personal injury cases, the following steps should be taken to properly document the case, evaluate it, represent the client, and support the client’s need for full and complete medical assessment and care:
- Obtain and retain evidence:
- Records: Obtaining records and documents regarding the client is important to understand the client both before and after the incident so that a “compare and contrast” analysis can occur. These records include photographs and videotape, school records, entry-level tests for the military (ASVAB – a multi-aptitude test), testing records (IQ, etc.), medical records, and job performance evaluations. It is important to note that while there may be some objective disparity between pre and post test results (for example – IQ), it is also possible that the client suffers from a MTBI with serious consequences but that test results do not disclose an MTBI. The fact that prior to the incident the client had good test results and a high IQ, and these results persisted post-concussion, does not negate a legitimate provable claim. Furthermore, while historically the system most commonly used for determining severity of a brain injury was the Glasgow Coma Scale (GCS), a GCS score of “normal” does not negate an MTBI. The GCS was established in 1974 and was developed to evaluate neurologic assessments of comatose patients with head injury. The scale wasn’t designed to diagnose patients with mild or even moderate brain injuries, nor was it aimed to supersede a complete and detailed neurologic examination. In 1974 CT scanning was not yet available. Nevertheless, if scans are taken of your client they should be obtained. While scans may not disclose MTBI, the patient may still have a traumatic brain injury with serious repercussions in his everyday life and his future. In fact, according to the journal Radiology, structural injuries are suspected and exist even though they are not yet fully detected on routine clinical imaging.
- Neuropsychological test results: Neuropsychological testing can be important in supporting your client’s claim, as well as changes in his conduct before and after the accident, speech patterns, word usage, and ease of access to vocabulary. Pay attention to the Test of Malingering (TOM) which is often performed in the neuropsychological assessment – it can be very elucidating and helpful in the client’s claim. Retention of experts in brain injuries, including neurologists, psychologists, and neuroradiologists, can be very helpful in supporting the client’s claim.
- We are also aware that helmets (football, motorcycle, bicycle, etc.) do not provide guaranteed protection from head injuries. Consideration of product liability claims should be engaged in to properly represent the client. This includes obtaining and securing the helmet and clothing worn at the time of the accident. In product liability cases, retaining all helmets owned by the client can be very useful (as well as the bike, motorcycle, ATV, automobile, etc.).
- Damages (the diary, calendar, witnesses, and “bucket-list”):
- Pre-accident diary and calendar: If your client kept a diary or calendar before the accident then it should be obtained and reviewed with an eye toward evaluating activity level before the accident.
- Post-accident diary and calendar: Regardless of whether there is a diary or calendar of pre-accident activities, it is important for the client and the client’s advocates to accumulate information about what they view as changes in the activity level, life style, energy, productivity, and damages sustained due to the brain injury. Gathering and documenting this information on a timely basis is the only method that will capture all of the pertinent information. The client who says, “I’ll remember it later” may mean well but needs to be pushed to document feelings and events, otherwise the details will be lost.
- Interview witnesses: From a damage perspective, interviewing witnesses to your client’s performance in school, at work, and in social settings is important to fully and completely understand the impact of the accident and the MTBI on your client. These witnesses may in fact be better than your client in describing the changes in the client’s life as well as the client’s performance and attitude in various settings. Clients are often dismissive of a mild head injury. Often a client knows they have sustained a brain injury but they are not able to articulate what they are feeling or explain deficiencies in their performance. Brain trauma is a highly individualized injury but can be seen in deficits in executive functioning tasks, planning, cognitive flexibility, decision-making, impulse control, adaptation to new situations, anxiety control, and coping strategies.
- Bucket-list: If your client kept a “bucket-list” then it could be a key piece of damage evidence, particularly if the client is unable to complete some or all of the items on the list because of the client’s injury. At a minimum, it may demonstrate the dreams and aspirations of the client, an important element of the client’s damage profile.
- Understanding the Client’s everyday living activities: An attorney representing an injured client must know the facts of the client’s everyday living experience, which requires a full and complete interview of the client, and the people who see and deal with him on an everyday or even periodic basis. As mentioned earlier, a very helpful tool to understanding the client before and after the accident and evaluating the client’s injuries is the client’s work and personal calendar, which can demonstrate activities as well as activity levels. If the client was an athlete and maintained a workout calendar or chart – that should be reviewed. If the client was a member of a gym, oftentimes the gym’s login system will identify the frequency and potentially the duration of the client’s workout. There are multitudes of opportunities to gather information about the client, which can support the client’s case – good questioning about the client’s life as well as creativity must be employed by the attorney to assist the client. In two recent cases, the client’s “calendar” assisted in representing the client. In the first, a baby sustained an injury and the family’s traditional “baby calendar” was utilized to illustrate the milestones that would never be reached therefore meeting one item of damage. In the second, a client’s training program for a marathon was cut short due to an accident and the client’s training calendar was used to demonstrate the consistency and level of training pre-accident versus the drop in training post-accident.
- Medical research: It is critical when representing a client to stay abreast of existing and burgeoning medical research regarding head injuries. Examples of subjects which are the basis for medical studies that can assist clients are those in the areas of executive function and coping at one year post TBI, prognosis for MTBI, the neuroscience of persistent post-concussive syndrome, recommendations for diagnosing MTBI, changes of cognitive functioning following mild traumatic brain injury over a 3 month period, long term neuropsychological outcomes following MTBI, neuropsychological performance following a history of multiple self-reported concussions, and complicated versus uncomplicated mild traumatic brain injury. As recently as Spring 2013 the Los Angeles Times published an article titled “Just a single concussion may have lasting effects”, citing recent medical studies on the subject. Successive head injuries, with or without a loss of consciousness, and even with a “full recovery” between head injuries, can lead to long term closed head injuries.
- Consideration of other potential claims including loss of consortium by the client’s spouse and product liability claims should be considered.
- Consideration of the client developing Post-Concussive Syndrome and/or Post Traumatic Stress Disorder must be evaluated. Clients with MTBI are more likely to develop PTSD. (Journal of American Medical Association Psychiatry – JAMA Psychiatry)
- The Pre-Post Medical Chart and the Injury Grid: Clients rarely arrive at an attorney’soffice with no history of any medical condition. All of us have had our bumps and bruises during our lifetime and obtaining medical records and understanding the client’s past medical history is critical to a clear understanding of the strengths and weaknesses of the claim. Use body diagrams to identify the key medical issues a client has experienced before and after an accident to visually demonstrate to mediators, judges and juries any preexisting conditions versus injuries caused by the accident, which is at issue. Sometimes clients have had multiple accidents and using multiple body diagrams can be useful to demonstrate that medical issues of years earlier are clearly distinguishable from the present accident. Serial diagrams or plastic overlays demonstrate these points quite well. The pre versus post-accident condition of the client can also be demonstrated in an injury grid chronology format. Clearly, significant time must be spent dissecting the medical records to accomplish these tasks.
These steps are designed to create clarity for the mediator, judge, and jury in the presentation of the client’s damage case. These efforts by an attorney in a head injury case can maximize the client’s damage recovery.
Lyle G. from Woodland Hills, CA is a member of the Attorney Referral Service (ARS) of the San Fernando Valley Bar Association (SFVBA).
To learn more about the information provided above or for questions about the above content, contact us at 818-340-4529.
What is the difference between petty theft and burglary or burglary and robbery? The following is intended to illustrate the definition and elements of common crimes. It is based on a true story but has been modified.
J.W. was 17 ½ years old and had never been in trouble with the law. He was a good student in school, had a nice group of friends and he was making plans to attend college. His future was promising. One Saturday night J.W. asked permission of his parents to attend a party. His parents were reluctant but after coaxing from J.W., they begrudgingly agreed to allow him to go and told him to be home by midnight. When J.W. did not show up on time his parents began to worry and sensed something was wrong. When J.W.’s parents got the call at 2:00 am from the police that J.W. had been arrested, his parents were both relieved that he was OK and at the same time distraught. J.W. had been arrested for murder.
The party was a typical party. Sometime around 10:00pm, J.W. went with a few of others to get some more beer from the corner liquor store. When they arrived, J.W. realized that he was expected to help “acquire” the beer by acting as a lookout while some of the others steal the beer. Since none of his friends were old enough to buy beer, nor did they have enough money to do so, he was left with the option of either bowing out or helping his “friends” steal the beer. Since he wanted his friend to think he was “cool”, he chose to help steal the beer by acting as a lookout. This is known as an “aider and abettor”. Under California law, ‘All persons concerned in the commission of a crime,… whether they directly commit the act constituting the offense, or aid and abet in its commission,… are principals in any crime so committed.’ (Pen. Code, § 31; People v. McCoy (2001) 25 Cal.4th 1111)
In California, theft of an item valued under $950.00 is usually a petty theft (Pen. Code, §§ 484,488) which is a misdemeanor that carries a maximum penalty of 6 months in jail. However, if it were proven that he actually entered the premises with the intent to steal, he could have been charged with a felony burglary (Pen. Code, § 459) that carries a maximum term of up to 3 years in state prison. This issue became moot because while one of the boys stole the beer, the shopkeeper tried to retrieve it and one of the other boys pushed the clerk away. This use of force has now elevated the offense to a felony robbery, (Pen. Code, § 211) punishable by up to 5 years in prison had the incident stopped there. Additionally such a charge would result in J.W. never being able to seal his juvenile court record if one resulted. However, when one of the boys saw the clerk struggling with his friend, he panicked and pulled out a knife he was carrying (unknown to J.W.) and stabbed the shopkeeper to death.
All of the boys were arrested and charged with murder. The prosecutor sought to try the youth as adults. If you were the trier of fact under this scenario, should J.W. be convicted of:
- Nothing
- Attempted under age purchase of alcohol
- Petty theft
- Burglary
- Robbery
- Murder
Shep Z. from Los Angeles, CA practices Criminal Defense and Juvenile Law. He is a member of the Attorney Referral Service (ARS) of the San Fernando Valley Bar Association (SFVBA).
To learn more about the information provided above or for questions about the above content, contact us at 818-340-4529.
Categories
Understanding Conservatorships
Conservatorships are court-supervised protective proceedings for adults who require special, formal assistance with their finances or their general residential and medical decisions, or both. Typically, the children of an ailing elder who can longer make decisions for herself or himself, frequently when dementia has set in establish a conservatorship. If the elder has valid Powers of Attorney, and there is no dispute among the family, or by the elder himself, then those forms can often suffice and conservatorship may be avoided. However, if there are no Powers of Attorney, or there are unresolvable disagreements among family members as to the elder’s care, or as to who should supervise the elder’s care, then the only real recourse is filing for conservatorship. There are many different forms and categories of conservatorship, and the process itself is heavily procedural. If you are worried about the safety of an elder, or know someone who is, the best move is to consult a reputable elder law attorney in your community as soon as possible. He or she can give you a complete picture of your options.
Caren N. from Woodland Hills, CA is a member of the Attorney Referral Service (ARS) of the San Fernando Valley Bar Association (SFVBA).
To learn more about the information provided above or for questions about the above content, contact us at 818-340-4529.
As anyone reading this blog knows, social media now drives many aspects of our work and play. While many people simply put up where they are eating that night, or pictures of their pets, others put up stories about their vacations and friends and still others use it as a forum for political views. The reason I am bringing this up is to point out that while you may think only your “friends” are keeping track of you, there are many more people checking your social media pages.
A few examples that you might already know about are colleges and universities. Not only do they review your written application and recommendation letters, they now “Google” your name to see what else pops up. That weekend at the river was fun, but the admissions counselor at your favorite university may not find the photo of you shot gunning a beer or rolling a joint as cool.
Additionally, in my line of work, I find that the police and the District Attorney regularly check the internet postings of people that have been arrested. An example is the case of a young man charged with a DUI wherein his best friend died. I had worked out a deal for probation with a year in jail instead of the 4 years in prison the DA wanted, only to show up for the sentencing to find the Judge and DA looking at a photo posted on the internet of my client holding a beer at a party. Needless to say, the probation offer went out the window and the client had to go to prison, albeit for only 2 years.
For attorneys, the information available on the internet can also be useful. Most of us “Google” the attorneys on the other side of our case to see what we can find out about them. Where did they go to school; what are their likes etc. –it makes that first meeting better when you can find that common ground.
Recently, a new topic has arisen, the use of social media by lawyers to find out information about potential jurors. The American Bar Association has just addressed this issue in June 2014. The ABA has announced that it is indeed ethical for attorneys to review the publicly available social media information for jurors. This means that instead of the minimal voir dire we are now allowed, you can already have looked at character profiles, whether the potential juror has mentioned the case and then monitoring the jurors’ social media activity during a trial. Of course, they warned about any communication or “friending” the jurors as that would be improper conduct. It is also a lesson to everyone that once you put something out on the internet, it is out there for everyone to see! Therefore, do not post anything that you would not want brought up by an attorney during the voir dire section of a trial.
David K. of Van Nuys, CA is a member of the Attorney Referral Service of the San Fernando Valley Bar Association.
To learn more about the information provided above or for questions about the above content, contact us at 818-340-4529.
