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***This blog discusses new and interesting legal issues and court decisions that impact criminal law. Nothing here is intended as specific legal advice for any specific case, but merely a forum for discussion of the issues. If you have anything interesting to add, send me an email at Thank you to Butler Shaffer for the inspiration. Enjoy!***

Nothing has Never Looked so Good – May 22, 2020

Opening Questions:

Should you get credit for behaving in jail?

This seemingly simple and narrow question has sparked a new debate among lawyers and judges in California, specifically in Ventura County.

Background, Facts and Appellate Decision:

Mr. Maya pleaded guilty to a felony DUI in 2012. He spent some time in prison, and then transferred to federal ICE custody because of his immigration status. He spent the next few years in ICE custody awaiting deportation. While in ICE custody, he filed for an expungement.

For those of you who don’t know, expungements are a post-conviction remedial measure taken to reopen a case, withdraw a plea of no contest or guilty, and have the case dismissed. Expungements help people who want to clean up their criminal record for immigration, employment and educational opportunities. Eligibility requirements are generally that you successfully completed probation and all its obligations, have no new pending or open cases, and you lived an honest and upright life since the conviction. For those cases that don’t have probation, you must wait one year from the pronouncement of judgment to request an expungement. Since Mr. Maya did not receive a probationary term, he waited the one year and petitioned the court for an expungement, per Penal Code section 1203.4.

In his petition he says that since his conviction, he has not broken any new laws, and has been a productive and model inmate. He attended Alcoholic Anonymous classes and participated in the much-coveted Fire Camp program, that allows inmates to help firefighters fight Southern California wildfires.

As another contextual point, expungements in general, are usually not heavily litigated motions. Either the petitioner is eligible or not, statutorily speaking. In my experience most expungements and felony reductions, for those eligible, are not even objected to by prosecutors and are more administrative in nature. For those prosecutors that want some extra tough street credibility with judges and colleagues, they will object for the record, but tell the judge off record that the objection is more procedural than substantive. I have filed hundreds of expungements, and I have never received a written opposition by an objecting prosecutor. But Ventura is different. For the most part these routine expungements have more obstacles and hurdles than other areas of California, so if you would ask defense attorneys which county would an otherwise eligible petitioner get denied an expungement, no one would be surprised it was good ole’ Ventura.  Mr. Maya didn’t stand a chance.

More Questions:

The prosecutor strenuously objected to Mr. Maya’s expungement on the grounds that Mr. Maya’s time in custody should not count as having led an “honest and upright life.” The trial court and appellate court agreed. But why? Is free-will suspended in custody? Can crime not be committed in custody? While some crimes may be harder to commit in jail, like a DUI or domestic violence, others are arguably easier! If you get punished for committing a crime in jail (which is often treated more harshly) why not get the benefit of not committing any crimes? Is it easier to keep clean in jail, or maybe is it harder because of the unfriendly and unsafe surroundings (to put it nicely)? Can inmates lead honest lives in jail if they participate in educational, self-help, religious and other programs? What if an inmate gets his or her G.E.D. or A.A. degree? If the petitioner attends those classes out of custody, the judge would surely take that into account, why not now? Does it make a difference that the AA classes and Fire Camp were volunteer-based and not obligatory?

What if an out of custody petitioner is handicapped and more limited than the average petitioner in his or her ability to commit crime? Should that matter? If a petitioner was medically incapacitated for some or all the time he was required to “live an honest and upright life” should his expungement be denied?

It seems the core of the argument between the appellate court and the Supreme Court is fundamentally, how we define “living an honest and upright life.” Is “living an honest and upright life” an active obligation, or a passive prohibition? Is it doing good, or just not doing bad? Is it adding something to society, or just not hurting it? While these distinctions seem to be hair-splitting, in cases like this, they have serious practical ramifications. Let’s look at this example; Rueben is out of custody and requests an expungement. He does no charity work, plays video games all day, is unemployed and is an otherwise unproductive and unremarkable member of society. Should he be granted an expungement? Well, he hasn’t broken the law. He hasn’t robbed any banks, assaulted anyone or trespassed. He isn’t fornicating with prostitutes or running narcotics across state lines. On the other hand, should he be rewarded and congratulated for not robbing a bank?! If he wants an expungement, he should earn it. He should actively do something to deserve it.

You might be saying to yourself that if this distinction is true, where does Mr. Maya fit into this rubric? Is he like Rueben? Had he spent his time in custody without any accolades or accomplishments one could argue that he is analogous to Rueben because he didn’t get in trouble but didn’t do good either. But that is not the case. He actively bettered himself more than what was required of him and his fellow inmates. So even according to the trial court and appellate court who define “live honest and upright” as an active obligation, why don’t they agree Mr. Maya should be credited for the active good he did in jail? Good question. It perhaps comes down to how the appellate court philosophically views time in jail. It seems the appellate court is of the belief that any good you do in jail is paying a debt to society. When you come out, you have a blank slate, and essentially, you have zeroed off your debt. So even if you do good, that good does not have a net benefit to society. Not only does the appellate court seem to require an active obligation to do good, it has to yield a net gain to society. This explains why the trial court and appellate court didn’t give any weight whatsoever in their respective decisions to the good Mr. Maya did in custody. It seems like it was conveniently overlooked, to the point the Supreme Court noted the silence. To the appellate court, it doesn’t matter how much good you do in custody, because you are just paying off a debt that you owe society i.e. something you have to do to get to zero. Fortunately, the Supreme Court disagrees.

Legal theories aside, the Supreme Court’s message is somewhat inspirational. Living your life as a normal, law abiding citizens is living an honest and upright life. You don’t need to feed starving children (if you could it is a very noble thing) or petition your local politician for a stop sign at a busy corner (less noble, but still a good thing). Just live your life and keep your nose clean.

The granting of an expungement should be done liberally. The point is to incentivize personal growth and help people for the future. According to Ventura County prosecutors, judges and the appellate court, should former substance abusers get credit for keeping sober? Should they pat themselves on the back for not breaking the law? Is it like Rueben getting credit for not robbing a bank? For some people in terribly difficult social, cultural and economic situations, not committing crime is no easy task, especially when you factor addiction-based crime or mental health related crime into the picture. Periods of meaningful sobriety and calm for these individuals is infinitely more difficult for them than the average person. Someone raised in gang culture must make a concerted and active effort to avoid getting caught up in it. These seemingly passive steps are incredibly difficult to achieve, ask anyone with personal experience.

The Supreme Court, in line with the Davidic courts of old, acknowledges that for many, before you can “do good” you must “turn away from bad,” and you should certainly get credit for completing half this equation.

When is Pro Per Improper? – May 13, 2020

Opening Questions:

Can a judge force you to have a lawyer? Even if a judge has that authority, would forcing a lawyer on you be a violation of due process or another constitutional right? Does the judge’s authority have any limitations or parameters? Does the type of criminal allegations against you have any impact as to whether a judge can force a lawyer on you? What does a defendant have to do to be “punished” into having to work with a lawyer?  

Many of these interesting questions were discussed in a recent case out of the Second Appellate District of California (People v. Torres) that I would like to explore.

Background, Facts and Appellate Decision:

For the most part, a criminal defendant can be represented by the attorney of his or her choice. Most judges give a lot of leeway to defendants who want to fire one attorney and hire another or relieve their public defender for a private attorney. Things get a bit more complicated when you want to replace your particular public defender for another public defender, but the philosophy is the same, namely, that having the legal representative of your choice is important to due process and a fair trial. But of course, there are always exceptions.

Mr. Torres was accused of badly beating his girlfriend when he tried to get back in a relationship with her. He was arrested and accused of domestic violence, kidnapping, assault likely to produce great bodily injury and a few other Penal Code violations and enhancements. He was represented by the public defender’s office through his preliminary hearing. After his preliminary hearing, he asked the court to relieve his public defender and allow him to represent himself. The court agreed. Soon after, Torres called his sister on the recorded jailhouse phone asking her to contact his ex-girlfriend (the victim) and convince her not to cooperate with law enforcement and to write a letter to the police saying Mr. Torres didn’t do anything wrong. Needless to say, the district attorney quickly got a copy of this recorded call and brought it to the attention of the judge.

To those of you who don’t know, all calls out of jails are recorded. Any half-witted defense attorney drills into his or her in-custody clients not to talk about anything case related on the phone with anyone. This is criminal defense 101. The fact that Mr. Torres violated this simple rule, clearly demonstrates he should have kept his public defender. And, if you are going to talk about your case on the phone, at least don’t commit a crime doing it. Penal Code section 136 makes it a felony to dissuade or intimidate a witness from testifying which is precisely what Torres was attempting to do.

Mr. Torres had some explaining to do in court, and it didn’t go well. The judge found that Mr. Torres’s attempt to contact the victim violated a criminal protective order and court order and therefore revoked his pro per status — meaning he can no longer represent himself. The court reappointed the public defender’s office over Mr. Torres’s objection. About 11 months later, Mr. Torres was found guilty at trial and sentenced to just shy of a decade in prison.

He now says that revoking his pro per status was wrong and his conviction should be overturned.

The appellate court ruled that a trial court can revoke pro per status when the defendant engages in  “serious and obstructionist misconduct or conduct that threatens the core integrity of the trial… and [witness intimidation] is an attempt to stop the trial.”

Pretty simple decision, but did they get right?

More Questions:

Essentially Torres is arguing that even if he violated the protective order and court order, and possibly Penal Code section 136, it should not warrant his pro per status getting revoked. At face value, when you read the allegations against Torres, he seems like a bad guy and that undoubtedly influences us. We don’t want him to win. We don’t want him to have his conviction overturned. He should spend time in prison for what he did. Right? But the more you allow his arguments to marinate, he sort of has a good point. He concedes that his call to his sister was wrong and likely constituted an independent felony. But why should that impact his legal representation or lack thereof? Sanction him! Raise bail! File a new charge against him! Use this fact at sentencing to give him the high term! But why does his behavior impact his legal representation? Even with an attorney, he can still make similar attempts to dissuade his ex-girlfriend from cooperating, right? Is revoking pro per status merely a legal technical remedy to allow the case to move forward in a timely and orderly manner, or is it a punitive measure? Is it a deterrence measure against future action? If so, are these justifiable uses of pro per status revocation? Would the trial judge make a similar ruling if the defendant’s attorney did the same behavior? Some prosecutors and defense attorneys act unethically. They coach witnesses, hide evidence and knowingly make dishonest representations to court and counsel. I have yet to see or hear of a scenario I just described where the judge forces the defense attorney or prosecutor to withdraw because the “integrity of the trial” is now in question. In these situations, judges give good tongue lashings, maybe give an adverse jury instruction when appropriate, or possibly sanction the attorney, but a forced withdrawal?  Arguably, forced withdrawal would be more appropriate with lawyers because lawyers are officers of the court and held to a higher ethical standard.

The nexus between witness dissuasion and “conduct that threatens the core integrity of the trial” is remarkably subjective. How do we define what threatens “the core integrity” of the trial? You would think, especially if you are in the hot seat as criminal defendants are, that the whole system from start to finish needs to have “core integrity.” Was Torres’s case stalled because of his actions? Was the case, procedurally speaking, negatively impacted? Was the prosecutor’s case prejudiced? Did Torres create a conflict of interest that calls into question the whole trial? Should the judge have first tried a less drastic action? Why didn’t Torres continue to dissuade the victim after his public defender took the case back? What did reappointing the public defender accomplish? If Torres’s behavior was so egregious such that it impacted the “core integrity of the trial” why didn’t the prosecutor charge him with violating Penal Code section 136 and make his or her case stronger at trial?

One could argue that pro per defendants innately threaten the “core integrity” of a case, because they are often woefully ignorant of the rules of court, evidence and criminal procedure. Should we entirely do away with pro-per and try to save these defendants from themselves to preserve the “core integrity” of the trial? As one trial judge told a defendant who had requested pro per status in his felony case, “going up against a seasoned prosecutor alone is like a middle schooler playing one-on-one against the worst NBA player. The middle schooler, no matter how good, will not beat the bench warming NBA player.” What if a pro per defendant violates a different court order while representing himself, like leaving the jurisdiction without permission or picking up a DUI? What if someone is representing himself in a DUI case and while on bail, gets a second DUI? Should his pro-per status be revoked? Is there something inherent about witness intimidation specifically in domestic violence cases that cause a revocation of pro per status? If so, what is it and are there other analogous situations that would justify pro per status revocation?  Is the Torres case an exception to the rule, or perhaps the new slowly expanding rule?