Decision/Motions
Category > Decision/Motions
The appellate court having reversed the escape conviction for insufficient evidence of a completed escape, could not reduce the conviction to attempted escape.After finding insufficient evidence to support a conviction for escape from state prison, an appellate court may not reduce the conviction to attempted escape, as the attempt is not a lesser included offense of escape and the trial court did not instruct the jury on attempt to escape.id: 22785
The trial court was bound by the terms of the remittitur following the order of a jury trial on the sentencing factors even though the Supreme Court published Black after the remittitur issued. The appellate court affirmed the earlier conviction but
accepted the Attorney General's concession that the matter needed to be remanded for a sentencing trial in order to impose the upper term, if the prosecutor would to accept the mid-term
sentence. The prosecutor refused to accept the mid-term and the California Supreme Court thereafter found in People v. Black (2005) 35 Cal.4th 1238 that the court's imposition of the
upper term did not violate Blakely v. Washington (2004) 524 U.S. 296. Because of the intervening Black opinion, the trial court did not conduct the retrial. However, the trial court erred since it lacked the authority to disobey a remittitur, even after the intervening Black decision.id: 19403
The trial court did not err by excluding the hearsay statement that this was defendant’s first time as a basis for the defense expert’s testimony that defendant was not a pedophile.At defendant’s trial for attempting to meet a child online to have sexual activity, he argued the trial court erred by restricting the scope of the defense expert’s testimony. Specifically, the court excluded the hearsay statement that this was defendant’s first time as a basis for the expert’s testimony that he was not a pedophile. But the court did not err by excluding the hearsay evidence, and because the evidence was not reliable, the ruling did not interfere with the defendant’s constitutional right to present his defense.id: 22784
The Court of Appeal signaled to the bar that it would increase the frequency of memorandum opinions in unpublished cases.The Court of Appeal confirmed the propriety of writing memorandum opinions (opinions with little or no reference to the evidence or procedural history and an abbreviated legal discussion) in unpublished cases. The court informed the bar that it would likely see an increase in the frequency of such opinions.id: 16758
About Pat Ford
Pat Ford is a criminal defense lawyer in San Diego who works on appeals in some of the most difficult cases around the state. He has a great record for success and integrity. Pat has also published a criminal case law digest since 1984 that's used by judges and lawyers around the state. He also speaks and writes articles for criminal lawyers as well as consumers interested in the law. The consumer-related articles are intended to be informative but do not constitute legal advice.
Case of the Day
The case of the day summarizes a current case and is viewed by lawyers and judges around the state every day.
Exclusion of 18-25 year-olds from the youthful offender provisions of section 3051 did not violate equal protection. Penal Code section 3051 establishes a parole eligibility hearing for juveniles convicted of special circumstance murder and sentenced to life without the possibility of parole. Excluding persons 18-25 from the youthful offender parole hearing provision did not violate equal protection principles.id: 27245