Recent Defense Victories

Defendant argued the trial court infringed his right to a jury trial when, as mandated by Penal Code section 667.6(d) it imposed full, separate and consecutive terms on all 22 counts based on a fact found not by the jury, but rather, the judge—namely, that he committed the crimes on separate occasions. Insofar as the provision mandated full consecutive terms, it increased the mandatory minimum sentence based on judicial factfinding, which violated the Sixth Amendment as determined in Alleyne v. U.S. (2013) 570 U.S. 99. Read opinion

A suspected inmate “kite,” a written message sent in violation of jail notes was not covered by the attorney-client privilege where it was contained in an envelope sent by an inmate to his attorney but was addressed to someone other than the attorney and appeared to be written by someone other than the client inmate. The document was not a confidential communication to the attorney, and was not privileged. Read opinion

Defendant appealed an order denying a motion under Penal Code section 1473.7 (failure to understand immigration consequences before a plea) filed in 2021. However, the court of appeal had denied a similar motion in 2018 and a later amendment to the provision did not change the issue. Since the new motion was not based on a new law, the claim was precluded by collateral estoppel. Read opinion

Trial counsel did not render ineffective assistance by failing to advise defendant before the plea that he could be subject to a lifetime commitment as a sexually violent predator after service of his prison term because the SVP commitment is a collateral consequence of a guilty plea. Read opinion

At the time of the arrest for evading police, the defendant identified as a female, but at trial identified as a male. Defendant argued the prosecutor committed misconduct by misgendering the defendant by using the female pronoun when referring to him at trial. However, there was no indication in the record that the misgendering affected the verdict, and the court rejected the argument that prejudice should be presumed. Read opinion

Defendant in a sexually violent predator case, argued the failure to obtain a proper waiver of his jury trial waiver violated equal protection given the different result in cases regarding other civil commitments. The state argued the issue was forfeited since it was not raised in the trial court. However, the issue could be heard where his defense counsel wanted to proceed with a court trial. The matter was remanded to allow the defendant an opportunity to assert the equal protection challenge. Read opinion