art martin helen irzaadi-sandiego.com/pdf_forms/mcle 12-03-2019 cacj appellate brief … ·...
TRANSCRIPT
ArtMartin Helen
Irza
TABLE OF CONTENTS
required byCalifornia Rules of Court, rule
8.204(a)(1)(A)
TABLE OFCONTENTS
TABLE OF AUTHORITIES
required byCalifornia Rules of Court,
rule 8.204(a)(1)(A)
“separately listing cases, constitutions,court rules, and other authorities cited.”
STATEMENT OF APPEALABILITY
required byCalifornia Rules of Court,
rule 8.204(a)(2)(B)
STATEMENT OF APPEALABILITY
Rule 8.204(a)(2)(B)______________________________________
An appellant’s opening brief must:State that the judgment appealed from is final,
or explain why the order appealed fromis appealable…
STATEMENT OF APPEALABILITY
This appeal is from a final judgment following a trial and is authorized by Penal Code section 1237, subdivision (a).
This appeal is from a final judgment following a trial and is authorized by Penal Code section 1237, subdivision (a).
STATEMENT OF APPEALABILITY
This appeal is from an order made after judgment, affecting the substantial rights of the defendant, and is authorized by Penal Code section 1237, subdivision (b).
This appeal is from a final judgment following a trial and is authorized by Penal Code section 1237, subdivision (a).
STATEMENT OF APPEALABILITY
This appeal is from an order made after judgment, affecting the substantial rights of the defendant, and is authorized by Penal Code section 1237, subdivision (b).
This appeal is from a final judgment following a guilty plea and is based on the sentence imposed, within the meaning of California Rules of Court, rule 8.304(b)(4)(B). It is authorized by Penal Code section 1237.
This appeal is from a final judgment following a trial and is authorized by Penal Code section 1237, subdivision (a).
STATEMENT OF APPEALABILITY
This appeal is from an order made after judgment, affecting the substantial rights of the defendant, and is authorized by Penal Code section 1237, subdivision (b).
This appeal is from a final judgment following a guilty plea and is based on the sentence imposed, within the meaning of California Rules of Court, rule 8.304(b)(4)(B). It is authorized by Penal Code section 1237.
This appeal is from a final judgment following a guilty plea after denial of a Penal Code section 1538.5 motion, within the meaning of California Rules of Court, rule 8.304(b)(4)(A). It is authorized by Penal Code section 1538.5, subdivision (m).
This appeal is from a final judgment following a trial and is authorized by Penal Code section 1237, subdivision (a).
STATEMENT OF APPEALABILITY
This appeal is from an order made after judgment, affecting the substantial rights of the defendant, and is authorized by Penal Code section 1237, subdivision (b).
This appeal is from a final judgment following a guilty plea and is based on the sentence imposed, within the meaning of California Rules of Court, rule 8.304(b)(4)(B). It is authorized by Penal Code section 1237.
This appeal is from a final judgment following a guilty plea after denial of a Penal Code section 1538.5 motion, within the meaning of California Rules of Court, rule 8.304(b)(4)(A). It is authorized by Penal Code section 1538.5, subdivision (m).
This appeal is from a final judgment following a plea of guilty and issuance of a certificate of probable cause, as prescribed by California Rules of Court, rule 8.304(b)(1) & (2). It is authorized by Penal Code section 1237.5.
This appeal is from a final judgment following a trial and is authorized by Penal Code section 1237, subdivision (a).
STATEMENT OF APPEALABILITY
This appeal is from an order made after judgment, affecting the substantial rights of the defendant, and is authorized by Penal Code section 1237, subdivision (b).
This appeal is from a final judgment following a guilty plea and is based on the sentence imposed, within the meaning of California Rules of Court, rule 8.304(b)(4)(B). It is authorized by Penal Code section 1237.
This appeal is from a final judgment following a guilty plea after denial of a Penal Code section 1538.5 motion, within the meaning of California Rules of Court, rule 8.304(b)(4)(A). It is authorized by Penal Code section 1538.5, subdivision (m).
This appeal is from a final judgment following a plea of guilty and issuance of a certificate of probable cause, as prescribed by California Rules of Court, rule 8.304(b)(1) & (2). It is authorized by Penal Code section 1237.5.
This appeal is from a final judgment in proceedings under Welfare and Institutions Code section [601 or 602] and is authorized by Welfare and Institutions Code section 800.
This appeal is from a final judgment following a trial and is authorized by Penal Code section 1237, subdivision (a).
STATEMENT OF APPEALABILITY
This appeal is from an order made after judgment, affecting the substantial rights of the defendant, and is authorized by Penal Code section 1237, subdivision (b).
This appeal is from a final judgment following a guilty plea and is based on the sentence imposed, within the meaning of California Rules of Court, rule 8.304(b)(4)(B). It is authorized by Penal Code section 1237.
This appeal is from a final judgment following a guilty plea after denial of a Penal Code section 1538.5 motion, within the meaning of California Rules of Court, rule 8.304(b)(4)(A). It is authorized by Penal Code section 1538.5, subdivision (m).
This appeal is from a final judgment following a plea of guilty and issuance of a certificate of probable cause, as prescribed by California Rules of Court, rule 8.304(b)(1) & (2). It is authorized by Penal Code section 1237.5.
This appeal is from a final judgment in proceedings under Welfare and Institutions Code section [601 or 602] and is authorized by Welfare and Institutions Code section 800.
This appeal is from [an extension of] a commitment under the Mentally Disordered Offender law under Penal Code section 2960 et seq. and is authorized by Code of Civil Procedure section 904.1.
STATEMENT OF APPEALABILITY
This appeal is from a final judgment following a trial and is authorized by Penal Code section 1237, subdivision (a).
This appeal is from an order made after judgment, affecting the substantial rights of the defendant, and is authorized by Penal Code section 1237, subdivision (b).
This appeal is from a final judgment following a guilty plea and is based on the sentence imposed, within the meaning of California Rules of Court, rule 8.304(b)(4)(B). It is authorized by Penal Code section 1237.
This appeal is from a final judgment following a guilty plea after denial of a Penal Code section 1538.5 motion, within the meaning of California Rules of Court, rule 8.304(b)(4)(A). It is authorized by Penal Code section 1538.5, subdivision (m).
This appeal is from a final judgment following a plea of guilty and issuance of a certificate of probable cause, as prescribed by California Rules of Court, rule 8.304(b)(1) & (2). It is authorized by Penal Code section 1237.5.
This appeal is from a final judgment in proceedings under Welfare and Institutions Code section [601 or 602] and is authorized by Welfare and Institutions Code section 800.This appeal is from [an extension of] a commitment under
the Mentally Disordered Offender law under Penal Code section 2960 et seq. and is authorized by Code of Civil Procedure section 904.1.
ADI MANUAL, Chap. 5,Briefing, § 5.8
The primacy effect, in psychology, is a cognitive bias that results from disproportionate salience of initial stimuli or observations. If, for example, a subject reads a sufficiently-long list of words, he or she is more likely to remember words read toward the beginning than words read in the middle.
First Impressions …
First Impressions …
First Impressions …
Marco Schmidt
First Impressions …
First Impressions …AG Strategy
First Impressions …AG Strategy
“Mistakes were made but this guy killed his grandmother.”
First Impressions …AG Classics
First Impressions …AG Classics
First Impressions …AG Classics
First Impressions …AG Classics
First Impressions …AG Classics
First Impressions …
The reader needs to know what facts to collect and remember …
Sex crime case …
Sex crime case …No Introduction
Sex crime case …
What facts does the reader collect without an introduction?
Sex crime case …
* * *
John Smith
Rosa Garcia. Rosa
Rosa
Ana Maya,
Maya.Smith
Unsavory Facts
Sex crime case …
* * *
John Smith
Rosa Garcia. Rosa
Rosa
Ana Maya,
Maya.Smith
Unsavory Facts
Sex crime case …Sentencing Error
Sex crime case …
Smith’s Sixth Amendment right to a jury
Sentencing Error
Sex crime case …
Smith’s Sixth Amendment right to a jury
Great Introduction
Sex crime case …Thought Experiment
What would happen if … ?
Sex crime case …
Smith’
Smith
Great Introduction
Sex crime case …
Smith’
Smith
Great Introduction
Sex crime case …
Smith’
Smith
Great Introduction
Sex crime case …
Smith’
Smith
Great Introduction
OR
Sex crime case …
What facts does the reader collect now?
Thought Experiment
* * *
***
Sex crime case …
John
Smith
John Smith
Thomas Smith.
Dates
* * *
***
Sex crime case …
John
John Smith
Thomas Smith.
Smith
Dates
Introduction
Two kinds of Introductions
– Purely informative
– Informative plus persuasive
Purely informative
Introduction
Appellant appeals his conviction for transportation for sale of a controlled substance under Health and Safety Code section 11379, subdivision (a). This court should reverse appellant’s conviction because the jury instructions removed an element of the offense from the jury’s consideration and confused the jury, and the court did not utilize Penal Code section 1161 to assure that the verdict represented the will of the jury.
Purely informative
Introduction
In this appeal, appellant argues that his conviction for felonious assault in Michigan did not qualify under California law as a strike prior, and therefore, the court erred in doubling the base term of his sentence from two to four years.
Additionally, all financial penalties should be stricken because the court did not make a determination that appellant had the ability to pay them. (People v. Dueñas (2019) 30 Cal.App.5th 1157.)
Informative PLUS persuasive
Develop the theme.
Draw attention to important facts.
Maintain credibility.
Key Facts
Key Facts
*Sheila O’Connor
Key Facts
*Jennifer Peabody
Key Facts
a
Key Facts
Key Facts
*Russell Babcock
Key Facts
*Russell Babcock
Key Facts
Key Facts
Key Facts: “Conviction, but”
Key Facts: “Conviction, but”
Key Facts: “Conviction, but”
Key Facts: “Conviction, but”
Key Facts: “Conviction, but”
Sympathetic Facts
Sympathetic Facts
Be Careful:Relevance to argument must be crystal clear
Sympathetic Facts
WILLIAM SORENSON
*Nancy Olsen
Sympathetic Facts
*Johanna Schiavoni
Controlling Law or Key Legal Point
Controlling Law or Key Legal Point
Controlling Law or Key Legal Point
Controlling Law or Key Legal Point
Key Facts
Controlling Law or Key Legal Point
Key Quote
Key Quote
*John Staley
Key Quote
*Alex Kreit
Key Quote
Key Quote
Key Policy Point
Key Policy Point
*Sheila Quinlan
Key Policy Point
*Paul Katz
Complicated pre- and post-trial proceedings …
Multiple cases …
Multiple appeals …
Statement of the CaseRule 8.204(a)(2)(A):
An appellant’s opening brief must:
State the nature of the action,the relief sought in the trial court,
and the judgment or order appealed from.
Statement of the CaseIn a criminal case,
procedural overview ofcharges,
significant proceedings,judgment,
andnotice of appeal.
Statement of the CaseA first amended information filed on November 28, 2018,
charged appellant Matthew Smith in count one with carjacking(§ 215, subd. (a)); in count two with kidnapping to facilitate a carjacking (§ 209.5); in count three with assault with a forearm(§ 245, subd. (a)(2)); and in count four with unlawful use of personal identifying information (§ 530.5, subd. (a)). It was further alleged as to counts one and two that appellant personally used a firearm.(§ 12022.53, subd. (b).) (1CT pp. 155-156.)
Statement of the CaseA first amended information filed on November 28, 2018,
charged appellant Matthew Smith with four counts:- count one, carjacking (§ 215, subd. (a));- count two, kidnapping to facilitate a carjacking (§ 209.5);- count three, assault with a forearm (§ 245, subd. (a)(2)); and- count four, unlawful use of personal identifying information
(§ 530.5, subd. (a)). (1CT pp. 155-157.)As to counts one and two, the information alleged that appellant
personally used a firearm. (§ 12022.53, (subd. (b).) (1CT pp. 155-156.)
Charts and Diagrams: Chart of Charges
*Christopher Nalls
Charts and Diagrams: Chart of Charges
*Christopher Nalls
Three victims:
Charts and Diagrams: Sentencing Chart
1 The sentences that did not contribute to the total of 17 years, 4 months are shown in parentheses.
Charts and Diagrams: Sentencing Chart
1 The sentences that did not contribute to the total of 17 years, 4 months are shown in parentheses.
Total: 17 years, 4 months
Charts and Diagrams: Sentencing Chart
Four casesbefore and after
Prop 47
*Sheila Quinlan
Charts and Diagrams: Sentencing Chart
6 years, 4 monthsv.
5 years
Four casesbefore and after
Prop 47
*Sheila Quinlan
Charts and Diagrams: Sentencing Chart
*Cynthia Jones
Charts and Diagrams: Sentencing Chart
*Cynthia Jones
Five cases but only two separate prison terms:
Charts and Diagrams: Sentencing Chart
*Cynthia Jones
Five cases but only two separate prison terms:
Charts and Diagrams: Sentencing Chart
*Cynthia Jones
Five cases but only two separate prison terms:
Charts and Diagrams: Sentencing Chart
*Cynthia Jones
Five cases but only two separate prison terms:
Charts and Diagrams: Sentencing Chart
Charts and Diagrams: Sentencing Chart
Charts and Diagrams: Sentencing Chart
Charts and Diagrams: Sentencing Chart
Charts and Diagrams: Sentencing Chart
Charts and Diagrams: Sentencing Chart
Charts and Diagrams: Sentencing Chart
Charts and Diagrams: Sentencing Chart
143!
Charts and Diagrams: Judges Use Them, Too
Charts and Diagrams: Judges Use Them, Too
OPINION BY SMITH, J.
People v. Warren(2018) 24 Cal.App.5th 889
*J. Bruce Smith
Charts and Diagrams: Judges Use Them, Too
OPINION BY SMITH, J.
People v. Warren(2018) 24 Cal.App.5th 889
*J. Bruce Smith
Charts and Diagrams: Judges Use Them, Too
DISSENTING OPINION BY LIU, J.
Charts and Diagrams: Judges Use Them, Too
DISSENTING OPINION BY J.
DISSENTING OPINION BY LIU, J.
People v. Buza(2018) 4 Cal.5th 658
*J. Goodwin Liu
Charts and Diagrams: Sentencing Range Charts
*San Diego District Attorney
Charts and Diagrams: Sentencing Range Charts
*San Diego District Attorney
Low = 29
Max = 40
Mid = 32
Citations to the Record:
Citations to the Record: Additional Transcripts
Citations to the Record: Additional Transcripts
(Augmented Reporter’s Transcript dated 5/11/2019 (hereafter “ART/1”), vol. 1, p. 13.)
Citations to the Record: Additional Transcripts
(Augmented Reporter’s Transcript dated 5/11/2019 (hereafter “ART/1”), vol. 1, p. 13.)
(1RT 6; see also Supplemental Clerk’s Transcript (hereafter “SCT”), vol. 2, p. 133.)
Citations to the Record: Additional Transcripts
(Augmented Reporter’s Transcript dated 5/11/2019 (hereafter “ART/1”), vol. 1, p. 13.)
(1RT 6; see also Supplemental Clerk’s Transcript (hereafter “SCT”), vol. 2, p. 133.)
(1RT 6; 2ART/2 35; RFN 76.)
Citations to the Record: Additional Transcripts
(Augmented Reporter’s Transcript dated 5/11/2019 (hereafter “ART/1”), vol. 1, p. 13.)
(1RT 6; see also Supplemental Clerk’s Transcript (hereafter “SCT”), vol. 2, p. 133.)
(1RT 6; 2ART/2 35; RFN 76.)
(2SCT 11; 1CT 5.)
Citations to the Record: Additional Transcripts
Citation Key Footnote:
Citations to the Record: Additional Transcripts
Citation Key Footnote:
FN2
Citations to the Record: Additional Transcripts
Citation Key Footnote:
FN2
Citations to the Record: Additional Transcripts
Citation Key Footnote:
FN2
Citations to the Record: Two Separate Records
D070594:
D069988:
Citations to the Record: Two Separate Records
1RT 594 101
1RT 988 101
1CT 594 100
1CT 988 100
D070594:
D069988:
Citations to the Record: Two Separate Records
1RT594 101
1RT988 101
1CT594 100
1CT988 100
D070594:
D069988:
Citations to the Record: Two Separate Records
*Jared Coleman
1RT 101
*1RT 101
1CT 100
*1CT 100
D070594:
D069988:
Citations to the Record: Two Separate Records
*Jared Coleman
1RT 101
*1RT 101
1CT 100
*1CT 100
D070594:
D069988:
2 All references to the record prefaced by an asterisk (*) refer to the record of appellant’s associated appeal in Case No. D069988,,which appellant requested judicial notice of at the time of filing of this brief.
Statement of Factsrequired by
California Rules of Court, rule 8.204(a)(2)(C):
An appellant’s opening brief must:(C) Provide a summary of the significant facts limited to
matters in the record.
Statement of Facts“An appellant must fairly set forth all the significant facts, not just those beneficial to the appellant.” (In re S.C. (2006) 138 Cal. App. 4th 396, 402.)
Including the necessary bad facts does not mean “light most favorable to the verdict.”
“The facts offer a chance to tell a coherent story, to humanize the client, to set forth the basis for the legal arguments, and to build both counsel’s and the client’s credibility.” (ADI Manual §5:16.)
Statement of FactsSTATEMENT OF FACTS
Appellant pled not guilty by reason of insanity, triggering a
two-phase trial under Penal Code section 1026. (1CT 36, 180.)
Alcala did not deny being the shooter and the prosecutor did not
challenge the fact that Alcala suffered from paranoid
schizophrenia.
A. Guilt phase evidence.
Statement of FactsStatement of Facts
A. The shooting at the intersection of Bradford and Carriage
B. The shooting of Eric Guerrero
C. Law enforcement gang expert testimony
Statement of FactsStatement of Facts
A. Evidence of a shootingB. Evidence of a confrontation prior to the shootingC. Events leading to appellant’s arrestD. Evidence of appellant’s prior uncharged criminal actsE. Evidence of communication with fellow gang membersF. Appellant’s post-arrest statement to investigatorsG. Appellant’s statement to his insurance company
Statement of FactsStatement of Facts
A. The Government’s Case1. The 2006 and 2007 refinance transactions2. Transfers between the Millers and entities they controlled3. Properties on which the Millers were not on the chain of
title but reported gains and losses on Schedule D4. Identification of documents and signatures
B. Mr. Miller’s Defense1. The 2006 and 2007 refinance transactions2. Transfers between the Millers and entities they controlled3. Properties on which the Millers were not on the chain
of title but reported gains and losses on Schedule D
Charts and Diagrams: Timeline
Charts and Diagrams: Timeline
To be clear, the sequence of events is as follows:
Charts and Diagrams: Timeline
To be clear, the sequence of events is as follows:
Charts and Diagrams: Key Exhibit
Charts and Diagrams: Key Exhibit
*Stephen Vasil
EXHIBIT 12
Police Officer’s handwritten drawing: X = Police officers
X = Appellant’s friends
X = Appellant and key witness
Charts and Diagrams: Judges Do It, Too
NINTH CIRCUIT OPINION
Low v. Trump University, LLC (9th Cir. 2018) 881 F.3d 1111
*J. Jacqueline Nguyen
Charts and Diagrams: Map
Charts and Diagrams: Map
Charts and Diagrams: Map
Charts and Diagrams: Map
Charts and Diagrams: Chart of Transmitted Exhibits
*Christian Buckley
Charts and Diagrams: Chart of Transmitted Exhibits
*Christian Buckley
Attachments: CRC Rule 8.204(d)
Attachments: CRC Rule 8.204(d)
Ten Pages!
Attachments: CRC Rule 8.204(d)
Ten Pages► Exhibits► Materials in the appellate record► Citable materials that are not
readily accessible
Attachments: CRC Rule 8.204(d)
Ideas and Examples
Attachments: CRC Rule 8.204(d)
Ideas and Examples► Visual Aids
► Unfair six-pack► Still shot from surveillance camera or police video► Closing argument PowerPoint slide
Attachments: CRC Rule 8.204(d)
Ideas and Examples► Visual Aids
► Unfair six-pack► Still shot from surveillance camera or police video► Closing argument PowerPoint slide
► Handy Reference for the Court► Complete: Transcript of police interrogation ► Collection: Relevant jury instructions► Collection: Relevant statutes
Attachments: CRC Rule 8.204(d)
Pros & Cons:Transmission: High quality original
Justices must share one copy
Attachment: Potential quality issuesTrue-Filing: Black & white only
Each Justice has a personal copyAttachments can be bookmarked
Attachments: Key Exhibit
Attachments: Key Exhibit
Lease:
Attachments: Key Documents Subject to Judicial Notice
Athena Shudde
Attachments: Key Documents Subject to Judicial Notice
Athena Shudde
Court’s Online Docket:
Attachments: Key Documents Subject to Judicial Notice
Attachments: Helpful Reference for Court
Attachments: Helpful Reference for Court
Exhibit List:Admitted / Not Admitted
Attachments: Helpful Reference for Court
Exhibit List:Admitted / Not Admitted
Charts and Diagrams: Sentencing Chart
143!
Charts and Diagrams: Sentencing Chart
9 Pages
Charts and Diagrams: Sentencing Chart
9 Pages
Introductions … Introduction to Statement of Facts
Introductions … Introduction to Statement of Facts
*Christian Buckley
Introdcutions … Introduction to Statement of Facts
*Christian Buckley
Introductions … Introduction to Statement of Facts
*Christian Buckley
Readability … Helpful Footnote
Readability … Helpful Footnote
Readability … Helpful Footnote
Readability … Helpful Footnote
Order of Arguments
Chronological?
Strength?
Impact on the judgment?
HeadingsRequired by California Rules of Court,rule 8.204(a)(1)(B)
[applicable to criminal appeals under rule 8.360(a)]:
“Each brief must: …State each point under a separate heading or subheading
summarizing the point,and support each point by argument and,
if possible, by citation to authority[.]”
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HeadingsIdeally, argument headings identify the applicable legal principle,
tie that principle to facts, and compel a conclusion.
III.
The trial court abused its discretion and violated appellant’s Fourteenth Amendment right to a fair trial by denying appellant’s mistrial motion, as one or more jurors stated during jury deliberations that a tattoo under appellant’s eye signified he had committed murder.
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HeadingsOverly detailed headings are not reader-friendly.
Argument
In view of Senate Bill No. 620 (Chapter 682), which was approved by the Governor and filed with the Secretary of State on October 11, 2017, and which will become effective on the first of the year and prior to finality of appellant’s direct appeal, rehearing is appropriate in the interest of justice and in the interest of judicial economy because appellant will likely prevail on an appellate claim that remand is necessary for the trial court to exercise its discretion to strike the firearm enhancement (Pen. Code, §12022.5) for which he is serving a 10-year sentence.
HeadingsA heading should be detailed enough to be clear what the argument is.
Argument
Rehearing is appropriate to order remand for the trial court to exercise its discretion to strike the firearm enhancement.
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HeadingsStrive to keep headings informative and as short as possible.
Argument
Since Senate Bill 620 will become effective before the finality of this appeal, rehearing should be granted and the case remanded for resentencing so the trial court can exercise its newly-created discretion to strike the firearm enhancement under Penal Code section 12022.5 attached to appellant’s sentence.
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HeadingsSometimes complexity is unavoidable...
Under the facts of this case, the way the prosecutor charged the two shooters with a single count of attempted murder, and argued both were direct perpetrators and aiders and abettors of each other, required a sua sponte unanimity instruction; the failure to instruct on unanimity was prejudicial, requiring reversal of count 1.
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Headings
Avoid hyperbole, adverbs, and adjectives.
The prosecutor’s flagrant misstatement of the law of transferred intent indisputably misled the jury...
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Headings
Avoid hyperbole, adverbs, and adjectives.
The prosecutor’s flagrant misstatement of the law of transferred intent indisputably misled the jury...
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Headings
Don’t order justices to do things.
This court must reverse count 1 because …
The conviction in count 1 must be reversed because …
The conviction in count 1 should be reversed because …
This court should reverse count 1 because …
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Argument subheadings
The conviction should be reversed because the court erroneously admitted minimally relevant, highly prejudicial prior act evidence under Evidence Code section 1101, subdivision (b).
A. IntroductionB. Proceedings belowC. Standard of reviewD. The court erroneously admitted prior act evidence.E. The error was prejudicial.
All headings and most subheadingsshould be complete sentences.
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Subheadings
Proceedings belowor
Procedural background
Over a defense objection, the court allowed the prosecutor to present prior bad act evidence.
Over a defense objection, the court allowed the prosecutor to present prior bad act evidence that appellant assaulted his grandparents on multiple occasions.
All headings and most subheadingsshould be complete sentences.
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SubheadingsAll headings and most subheadings
should be complete sentences.
Standard of review
Standard of review: abuse of discretion
Standard of review: a trial court’s admission of prior bad act evidence is reviewed for abuse of discretion under the Evidence Code.
SubheadingsThe conviction should be reversed because the court erroneously admitted minimally relevant, highly prejudicial prior act evidence under Evidence Code section 1101, subdivision (b).
A. Introduction
B. Over a defense objection, the court allowed the prosecutor to presentprior bad act evidence.
C. A trial court’s admission of prior bad act evidence under Evidence Codesections 1101, subdivision (b), and 352 is reviewed for abuse of discretion.
D. By erroneously admitting prior bad act evidence that was substantially more prejudicial than probative, the court abused its discretion under the Evidence Code.
E. The erroneously admitted evidence that appellant assaulted his grandparents on multiple occasions prejudiced appellant’s case and undermined his Fourteenth Amendment right to a fair trial by turning the case into a trial of appellant's character, rather than the acts and mental states required for a murder conviction.
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Argument subheadingsThe admission of Jones’s arsenal of loaded weapons and ammunition, none of which was connected to the charged offense, was prejudicial error requiring reversal of appellant's conviction.
A. The court over-ruled Jones’s relevance, improper character andEvidence Code section 352 objections to photographs and testimony about loaded weapons and ammunition found in Jones's cabin.
B. Evidence of Jones’s possession of weapons, ammunition and loaded magazines, not used in the charged offense, was irrelevant and inadmissible.
C. Any minimal relevance was substantially outweighed by the prejudicial effect of the photos.
D. Introduction of the weapon evidence prejudiced Jones, requiring reversalof his murder conviction.
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Laura Schaefer
Argument subheadingsThe trial court erred by refusing defense counsel’s request to instruct that second-degree murder requires an act with a high probability of causing death.
A. The trial court rejected defense counsel’s pinpoint instruction clarifying the degreeof danger required for a second-degree murder conviction.
B. This court examines de novo whether the trial court erred by denying a legally correctand factually supported pinpoint instruction.
C. The “high probability” language proposed by defense counsel is still a valid andclear way to explain the degree of risk needed for an act to qualify for murder.
D. The requested instruction directly related to Smith’s defense that his driving while intoxicated did not have a high probability of causing death.
E. The “high probability” instruction would have aided the jury in assessing theimplied-malice standard.
F. The refusal to give the requested instruction was prejudicial because it hamperedSmith’s persuasive argument that his driving did not create a high probability of death.
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Paul Katz
Charts and Diagrams: Element Comparison
Charts and Diagrams: Element Comparison
Special-over-general element comparison test:
Charts and Diagrams: Element Comparison
Four ways VC 10851 can be violated:
*Reed Webb
Attachments: Out-of-State Authority
Attachments: Out-of-State Authority
*Kendall Wasley
Attachments: Legislative History – Significant Excerpts
Attachments: Legislative History – Significant Excerpts
Attachments: Former version of statute
Attachments: Former version of statute
Attachments: Former version of statute
Attachments: Flowchart
Attachments: Flowchart
Complicated Statute:
Attachments: Flowchart
ApprendiIssue:
Attachments: Flowchart
ApprendiIssue:
Attachments: Fair Market Value Calculation
*Randall Connor
Attachments: Fair Market Value Calculation
*Randall Connor
Counsel had obtained all data necessary to prepare a basis for a reliable estimate of fair market value, but, she failed to prepare it.
Attachments: Fair Market Value Calculation
*Randall Connor
When proper representation of a client requires a simple mathematical calculation, a lawyer must perform the calculation or risk a finding of incompetence.
Counsel had obtained all data necessary to prepare a basis for a reliable estimate of fair market value, but, she failed to prepare it.
Attachments: Fair Market Value Calculation
*Randall Connor
When proper representation of a client requires a simple mathematical calculation, a lawyer must perform the calculation or risk a finding of incompetence.
Counsel had obtained all data necessary to prepare a basis for a reliable estimate of fair market value, but, she failed to prepare it.
Attachments: Fair Market Value Calculation
*Randall Connor
The concept of present value, i.e., the time value of money,is just not that hard.
Attachments: Fair Market Value Calculation
*Randall Connor
“The concept of present value, i.e., the time value of money,is just not that hard.”
-- People v. Pangan (2013) 213 Cal.App.4th 574, 583-584.
Attachments: Fair Market Value Calculation
*Randall Connor
2011 Replacement Cost, Linear Depreciation
Attachments: Fair Market Value Calculation
*Randall Connor
2011 Replacement Cost, Linear Depreciation
$1207.56 v.
$ 821.51
Attachments: Fair Market Value Calculation
*Randall Connor
2011 Replacement Cost, Linear Depreciation
< $950.00
Coming Soon!
Coming Soon!
“Proposed Order”
DISPOSITION
The judgments are reversed insofar as Lopez's and Sandor's first degree premeditated murder convictions are concerned, and the matter is remanded with directions. The People may accept a reduction of the convictions to second degree murder or choose to retry them on the greater offense as direct aiders and abettors. If the People accept a reduction, the trial court shall enter judgments against Lara and Salazar for second degree murder and sentence them accordingly.
We direct the clerk to modify Lara's and Salazar's sentences to reflect terms of life with the possibility of parole for counts 3, 4 and 5, to amend the abstracts of judgments accordingly, and to forward copies of the amended abstracts of judgments to the Department of Corrections. In all other respects, the judgments are affirmed.
Complicated
DISPOSITION
The judgments are reversed insofar as Lopez's and Sandor's first degree premeditated murder convictions are concerned, and the matter is remanded with directions. The People may accept a reduction of the convictions to second degree murder or choose to retry them on the greater offense as direct aiders and abettors. If the People accept a reduction, the trial court shall enter judgments against Lara and Salazar for second degree murder and sentence them accordingly.
We direct the clerk to modify Lara's and Salazar's sentences to reflect terms of life with the possibility of parole for counts 3, 4 and 5, to amend the abstracts of judgments accordingly, and to forward copies of the amended abstracts of judgments to the Department of Corrections. In all other respects, the judgments are affirmed.
Complicated
*Ava Stralla
“Don’t Forget”
Samson’sSamson’s
Samson
Special Occasion“Final Pitch”
Key Facts
*John Edwards
Equity Due Process
Special Occasion“Final Pitch”
Charts and Diagrams: Chart of Charges
143!
ArtMartin Helen
Irza