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Rules for Sentencing a Criminal Defendant

Decisions related to sentencing a criminal defendant that criminal courts must take into account include “the nature of the offense and/or the offender, with particular regard to the degree of danger both present to society.” In re Rodriguez (1975) 14 Cal.3d 639, 654, quoting In re Lynch (1972) 8 Cal.3d 410, 425. In other words: “For the determination of sentences, justice generally requires . . . that there be taken into account the circumstances of the offense together with the character and propensities of the offender.” Gregg v. Georgia (1976) 428 U.S. 153, 189.  The scope of “circumstances in aggravation or mitigation” under Penal Code section 1170(b) is, therefore, coextensive with the scope of inquiry under the similar phrase in Penal Code section 1203.

The Judicial Council has enumerated a number of factors that help guide us toward what an appropriate plea and sentence are in a particular case.  They will be reviewed in detail later in this brief.  They are illuminating herein.

Counsel must also provide relevant materials to the court such that the court, in sentencing a criminal defendant, may impose a just and reasonable sentence and to correct errors in the probation report which might have a negative impact on the sentence imposed by the court. People v. Valdivia (1960) 182 Cal.App.2d 145; People v. Peterson (1973) 9 Cal.3d 717, 726; People v. Fang (1997) 54 Cal.App.4th 669, 677-678.) Preparing statements in mitigation to aid the court in its decision to grant probation or impose a lesser sentence is a commonplace part of the practice of law. (Pen. Code §§ 1204, 1170(b); Cal. Rules Ct. 4.437.)

In In re Rodriguez the court released defendant from further incarceration after a 22 year sentence because “[I]t appears that neither the circumstances of his offense nor his personal characteristics establish a danger to society sufficient to justify such a prolonged period of imprisonment.” (Id. at 655.) In the Rodriguez case, a conviction for violating Penal Code section 288 was at issue where Rodriguez had received a life term.  The court engaged in a cruel and unusual punishment analysis pursuant to the Lynch, supra case.  “[Rodriguez] was only 26 years old at the time of the offense… Thus, it appears that neither the circumstances of his offense nor his personal characteristics establish a danger to society sufficient to justify such a prolonged period of imprisonment.”  (Id. At 655.)

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At Jay Leiderman Law, we have proven results over years of practice, and we are uniquely qualified to represent you in your time of need. We are situated in Ventura, California but we handle cases throughout the state. We have the expertise, experience and skill to handle numerous types of legal matters.  Jay Leiderman is one of only a few CERTIFIED CRIMINAL LAW SPECIALISTS in the area.  He handles every kind of criminal law case. He is famous for defending medical marijuana cases and computer hacking cases, though the bulk of his practice is a generous mix of those cases plus serious felonies and misdemeanors.  Read more at his Wikipedia page: https://en.wikipedia.org/wiki/Jay_Leiderman or his homepage www.jayleiderman.com

“A creative and multi-faceted vigorous defense comes from a creative, multifaceted lawyer.” – Jay Leiderman.

Sentencing a Criminal Defendant truth in evidence Prop 115 Prop 8 Evidence Code section 352

Jay Leiderman has tried dozens of cases to a jury – with spectacular results!

This post does not create an attorney-client relationship and does not constitute legal advice.  Moreover, the law changes over time.  Always consult an attorney before determining what motion s to file and what the current law is as to any particular topic.

Criminal defense attorney and author Jay Leiderman, a California State Bar Certified Criminal Law Specialist can be contacted through the contact page of this website: http://www.jayleiderman.com/htm/contact.php

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THE DEFENSE MOVES FOR AN ORDER THAT THE PROSECUTION WITNESSES NOT TO KNOWINGLY TESTIFY TO INADMISSIBLE EVIDENCE

A prosecutor commits error when his/her witness knowingly testify to inadmissible evidence. [People v. Basuta (2001) 94 CA4th 370(polygraph) People v. Aragon (1957) 154 Cal.App.2d 646 (same, “the district attorney must instruct his witnesses. He cannot do indirectly what he is forbidden to do directly) “A prosecutor must guard against volunteer statements from his witnesses.” (People v. Baker (1956) 147 Cal.App.2d 319) (D took a polygraph); People v. Bentley (1955) 131 CA2d 687, 690 (prior conviction).)

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At Jay Leiderman Law, we have proven results over years of practice, and we are uniquely qualified to represent you in your time of need. We are situated in Ventura, California but we handle cases throughout the state. We have the expertise, experience and skill to handle numerous types of legal matters.  Jay Leiderman is one of only a few CERTIFIED CRIMINAL LAW SPECIALISTS in the area.  He handles every kind of criminal law case. He is famous for defending medical marijuana cases and computer hacking cases, though the bulk of his practice is a generous mix of those cases plus serious felonies and misdemeanors.  Read more at his Wikipedia page: https://en.wikipedia.org/wiki/Jay_Leiderman or his homepage www.jayleiderman.com

“A creative and multi-faceted vigorous defense comes from a creative, multifaceted lawyer.” – Jay Leiderman.

prevent witnesses from knowingly testifying to inadmissible evidence

Jay Leiderman on his way to a high profile case in federal court

This post does not create an attorney-client relationship and does not constitute legal advice.  Moreover, the law changes over time.  Always consult an attorney before determining what motion s to file and what the current law is as to any particular topic.

Criminal defense attorney and author Jay Leiderman, a California State Bar Certified Criminal Law Specialist can be contacted through the contact page of this website: http://www.jayleiderman.com/htm/contact.php

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“The district court’s finding that Naranjo was involved in a five-kilogram cocaine transaction does not preclude a finding of sentencing entrapment. We now address Naranjo’s alternative argument that the district court erred in not finding that the government engaged in sentencing entrapment.”  U. S. v. Naranjo 52 F.3d 245 (1995) (sentencing entrapment)

 

From an email sent by Dennis Roberts on 16 November 2010, in reply to an email soliciting a second chair on a jury trial case involving the below-described judge (name redacted).  

It ain’t me as second chair as that total prick, Judge XXX hates my guts.  He banished me from his courtroom  After he did that I had another case assigned to him.  I reminded him of my banishment.  He denied he had ever banished me.  I said, “maybe you don’t remember but the transcript does” (said off the top of my head – I have no idea whether it was in the transcript or not).  So he said to the AUSA, can’t you relate this to another case.  AUSA said he couldn’t think of any.  I suggested that since there were thousands of cases on the docket titled United States v. Smith,   U.S. v Jones, etc that they could just relate it to one of those. In Federal Court, a judge can relate a case to another if one of the parties is identical so although I was joking when I suggested that, kidding that since the US was a party in every criminal case the Judge could relate it to any US v whatever.  Of course, the Judge and the AUSA knew I was joking, but the next thing I knew I got a note telling me the case was assigned to Judge YYY (best judge in that division of the district) and had a tremendous result from him.  Now, if you want to get away from Judge XXX join me as second chair and you’ll see how fast they spin the wheel again.  Good luck  He is a total prick.

I reminded him of my banishment

I could tell you dozens of stories but one of the best is that he said he would keep out a State PROSECUTION, not a conviction, for cocaine about 12 years ago which had been thrown out of State Court pre-trial on Fourth Amendment grounds, IF I would not raise something as a defense, I now remember what it was:  He told me not to suggest that my client knew nothing about cocaine.  That was pretty easy. This was the case that got me banished.  Anyhow the prosecution rests their case, I rest mine, and the evil Judge turns to the AUSA and says I will let you reopen to bring in that cocaine prosecution as Mr. Roberts “opened the door”.   I said, “that’s just not true what did I do or say that opened the door”.  He refused to answer.  I was at the podium at the time.  I was so angry that I was holding a pencil which I threw down on the podium really hard.  Eraser hit and it bounced into the air hitting his clerk on the head.  I could just apologize or go with my true feelings which were that I was so angry I let all my anger out and flopped down at council table with tears of frustration and anger saying “I just can’t take this anymore”.  The prosecutor, a kind of decent guy, came over and put his arm around me and told the judge we should adjourn for the day.  I drove home (about an hour with no traffic) and when I arrived my associate met me in the driveway and told me, “The prosecutor just called and asked me to tell you he wasn’t going to introduce that evidence and for me to get a good night’s sleep”.

Sentencing entrapment

and the evil judge sez …

Part of XXX’s animus was that after I saw he was going to fuck me no matter what I did (he didn’t believe my client’s story which I also had difficulty believing) I decided to fuck with him.  So every night (I was working till 4 and 5 in the morning) I would send him a fax.  The faxes were nuts, little chatty notes about my evening, how my kids were angry that I was never home, how the TV said it would rain tomorrow so I might be late, shit like that.  One day he says “Mr Roberts, there is something wrong with your fax machine.  I got one today when I arrived in my chambers and it said it was send at 4 a.m.”  Oh, thank you your Honor.  I will fix it when I get home  I sent it at 5 a.m.  After a few more of those he told me “do not send me another fax” so that night I sent him a fax which said “I’m not sure what you are saying.  Can I not send you a fax about the litigation or if I am ill, or no faxes at all no matter how important?”  He never said another word about the faxes which kept coming.

He is a shill for the prosecution and that is one of his better traits

Enjoy Judge XXX. It will be the worst experience of your life.  He is a shill for the prosecution and that is one of his better traits.  Oh; the reason he hated me in the cocaine case (the one causing my banishment) is that Bill Panzer and I took U. S. v. Naranjo 52 F.3d 245 (1995) (sentencing entrapment) to the 9th and reversed him.  Sentencing entrapment means that the Govt could get a much higher mandatory minimum if it were 5 kilos he agreed to buy from the narcs, not just one or two. It doubled the mandatory minimum from 5 to 10 years. Actually I just remembered what Judge XXX didn’t want me to raise – that my guy knew nothing about cocaine which would have been ludicrous but I guess the judge thought I might do it so he said he’d keep out the 12 year old prosecution, never was a conviction, if I didn’t suggest my guy knew nothing about cocaine. Fair enough. Then he tried to screw me and the client.  Rumor had it that he was going to the Ninth Circuit Court of Appeals and that idiotic decision of his was the kiss of death.

An excerpt from Naranjo is below.

Sentencing entrapment

This one sort of speaks for itself

52 F.3d at 250-251: “[T]he court ultimately found that sentencing entrapment had not occurred because “if you look at the full situation, it seems pretty clear that [the DEA] had a pretty good reason to believe that [Naranjo] had been heavily involved in drug trafficking.” This statement lacks the specificity required by Conkins, especially since it fails to provide any 251*251 finding relevant to the critical issue of Naranjo’s predisposition to engage in a five-kilogram cocaine transaction.”

251: “In the absence of specific findings on the record, we are uncertain as to what findings the district court relied on in finding Naranjo predisposed to cocaine dealing”

also at page 251: “Because the district court provided no factual findings on the record, we are unable to ascertain what facts it relied upon in finding that Naranjo did not adequately prove sentencing entrapment.”

That’s an Appellate Court that was not happy with Judge XXX.

 

A brief biography of Dennis Roberts

For a more detailed biography click here.  For his law practice, see: http://www.dennisrobertslaw.com/

I spent the summer of ’63 as a law student, then 1964-1966 as a young attorney working with C. B. King in [Albany] All-Benny, Georgia. I returned after I graduated law school at U. C. Berkeley where my then wife started the Albany Georgia Nursery School with C. B.’s wife, Carol King. It was enormously successful as it provided Head Start with living proof that you could run an interracial school in the deep South.

We then moved to NY where I was the first staff employee of the Center for Constitutional Rights (Arthur Kinoy, Bill Kunstler, Morty Stavis) I was there for three years and we returned to Berkeley where I did all the pre-trial work with Michael Tigar in the Chicago 8 and Angela Davis cases.

Among many, many others, I also represented Dennis Banks and we fought Dennis’ case for 13 years to a very successful conclusion. 

Dennis Roberts

Dennis Roberts, in his law office in Oakland, California

All written content (c) Dennis Roberts

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THE EVIDENCE PRESENTED TO THE GRAND JURY SUPPORTS PROBABLE CAUSE FOR ONLY A SINGLE CONSPIRACY TO BENEFIT THE MEXICAN MAFIA; ALL SUBORDINATE CONSPIRACY CHARGES SHOULD BE DISMISSED

“The conspiracy is the crime, and that is one, however diverse its objects.”  (Frohwerk v. United States (1919) 249 U.S. 204, 210 [Holmes, J.].)  The prosecutor went to great lengths to connect all of the charges in this case—except Count 2—back to a single conspiracy with the objective to sell drugs and extort tax money from local gangs and drug dealers in Ventura County on behalf of the Mexican Mafia Conspiracy.  According to the People, every phone call, meeting and conversation was connected to this primary conspiracy.  Indeed, the People were required to make these connections for two reasons: first, to support each of the Mexican Mafia gang allegations attached to Counts 3 through 33; and second, to impose co-conspirator liability for substantive offenses committed as a “natural and probable consequence” of the primary conspiracy.  (See Prettyman, supra, 14 Cal.4th 248; People v. Kauffman (1907) 152 Cal. 331.)  In Prettyman, the California Supreme Court outlined the “natural and probable consequences” rule in the context of aiders and abettors:

To apply the ‘natural and probable consequences’ doctrine to aiders and abettors is not an easy task.  The jury must decide whether the defendant (1) with knowledge of the confederate’s unlawful purpose, and (2) with the intent of committing, encouraging, or facilitating the commission of any target crime(s), (3) aided, promoted, encouraged, or instigated the commission of the target crime(s); whether (4) the defendant’s confederate committed an offense other than the target crime(s); and whether (5) the offense committed by the confederate was a natural and probable consequence of the target crime(s) that the defendant encouraged or facilitated.  Instructions describing each step in this process ensure proper application by the jury of the ‘natural and probable consequences’ doctrine.

(Prettyman, supra, 14 Cal.4th at 267 [original emphasis omitted].)  The Court also stated that “a conviction may not be based on the jury’s generalized belief that the defendant intended to assist and/or encourage unspecified ‘nefarious’ conduct.”  (Id. at p. 268.)

not all conspiracies are for the benefit of a street gang

The Indictment nevertheless alleges eighteen other conspiracies, seventeen of which include the same Mexican Mafia gang allegation.  This is contradictory.  As the People argued, these subordinate conspiracies were committed for the same purpose as the primary conspiracy.  They were not the result of independent agreements.  “‘One agreement gives rise to only a single offense, despite any multiplicity of objects.’”  (People v. Lopez (1994) 21 Cal.App.4th 1551, 1557; see also 1 Witkin, Cal. Crim. Law 4th (2012) Elements, § 77, p. 372; Braverman v. United States (1942) 317 U.S. 49, 53 [“The one agreement cannot be taken to be several agreements and hence several conspiracies because it envisages the violation of several statutes rather than one.”].)  “The test is whether there was one overall agreement among the various parties to perform various functions in order to carry out the objectives of the conspiracy.  If so, there is but a single conspiracy.”  (People v. Skelton (1980) 109 Cal.App.3d 691, 718.)  As explained in People v. Morocco (1987) 191 Cal.App.3d 1449, 1453: “Where two or more persons agree to commit a number of criminal acts, the test of whether a single conspiracy has been formed is whether the acts ‘were tied together as stages in the formation of a larger all-inclusive combination, all directed to achieving a single unlawful end or result.’  . . .  In making this determination, the jury should be instructed to consider whether the multiple crimes requested by the defendant were part of a ‘larger, all-inclusive’ plan with a single objective and/or motive.”

This is a time-honored proposition firmly entrenched in conspiracy law.  As proof positive, see the discussion in People v. Lopez (1994) 21 Cal.App.4th 1551, 1557-58:

In In re Nichols (1927) 82 Cal. App. 73 [255 P. 244], the conspirators enticed a man into a rented room with defendant, accosted him, threatened him with suit for alienation of the defendant’s affections, and hired an attorney to file the suit.  The conspirators were charged in two counts: conspiracy to commit the crime of extortion and conspiracy to falsely maintain a lawsuit.  The defendant was convicted of both counts.  She was sentenced to prison on count two and placed on probation on count one.

After reviewing the evidence and the information, the Nichols court found, ‘With reference to the two counts in the information in the case here being considered, it is clear that the basis therefor was a single transaction and involved but one conspiracy.’  (In re Nichols, supra, 82 Cal.App. at p. 79.)  The court also quoted with approval from United States v. Weiss (N.D. Ill. 1923) 293 Fed. 992, as follows: ‘“At the threshold it must be noted that the government cannot split up one conspiracy into different indictments, and prosecute all of them, but that prosecution for any part of a single crime bars any further prosecution based upon the whole or a part of the same crime.”’  (82 Cal.App. at p. 79)  Then quoting the state Supreme Court in People v. Frank (1865) 28 Cal. 507, 513, the Nichols court added, ‘“Where, in defining an offense, a statute enumerates a series of acts, either of which separately, or all together, may constitute the offense, all such acts may be charged in a single count, for the reason that notwithstanding each act may by itself constitute the offense, all of them together do no more, and likewise constitute but one and the same offense . . . .”’ (82 Cal.App. at p. 79.)

The Nichols court concluded defendant could be convicted of only one conspiracy count: ‘The instant case, then, stands as though the defendant had been convicted of but one charge of conspiracy; that the trial court granted her application for probation thereon and at the same time sentenced her to state prison for the commission of the identical offense . . . .’  (In re Nichols, supra, 82 Cal.App. at p. 81.)  The judgment was reversed and the trial court was directed to rearraign defendant for judgment and to impose only one sentence.  (Id. at p. 82.)

True, in general, “the question whether one or multiple conspiracies are present is a question of fact, to be resolved by a properly instructed [trial court] jury.”  (Morocco, supra, 191 Cal.App.3d at 1453 [internal quotation marks and citation omitted].)  As a result, most of the case law discussing the issue of single or multiple conspiracies discusses jury instructions and jury verdicts.  (See, e.g., People v. Jasso (2006) 142 Cal.App.4th 1213 [overturning conviction for trial court’s failure to instruct on a single, overall conspiracy count, rather than the three separate counts on which defendant was convicted] [1]; People v. Patrick (1981) 126 Cal.App.3d 952 [single kidnapping cannot support convictions for both kidnapping and false imprisonment conspiracies].)

But both the question whether there is probable cause to support a charge pursuant to a § 995 challenge and the question whether a defendant is entitled to a trial court jury instruction are questions of evidentiary sufficiency.  (See People v. Vargas (2001) 91 Cal.App.4th 506, 554 [“A trial court is required to instruct the jury to determine whether a single or multiple conspiracies exist only when there is evidence to support alternative findings.”].)  As such, courts must consider whether probable cause exists to support multiple conspiracy charges.

[1] “In sum, we conclude that the court erred in failing to instruct on single versus multiple conspiracies.  Moreover, given the strong evidence that the three unsuccessful efforts were merely part of a single agreement between [co-conspirators], we further conclude that it is reasonably probable the jury would have convicted defendant of a single conspiracy rather than three separate counts of conspiracy had it been properly instructed.”  (Jasso, supra, 142 Cal.App.4th at 1223.)

 

Mexican Mafia

Jay Leiderman was the lead attorney on Ventura County, California’s first concentrated Mexican Mafia conspiracy prosecution

 

 

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GANG MEMBERSHIP IS CONSTITUTIONALLY PROTECTED AND THE FIRST AND FOURTEENTH AMENDMENTS PROHIBIT CRIMINALIZING GANG MEMBERSHIP PER SE

Like it or not, gang membership is constitutionally protected activity.  (Dawson v. Delaware (1992) 503 U.S.  159, 161; see also City of Chicago v. Morales (1998) 527 U.S. 41.)  Admittedly, Penal Code § 186.22, which closely parallels § 182.5, has been upheld against a variety of constitutional challenges, including claims based upon the First Amendment and the Due Process Clause of the Fourteenth Amendment. (See People v. Castenada (2000) 23 Cal.4th 743, 752; People v. Gardeley (1996) 14 Cal.4th 605, 622-633; People v. Green, 227 Cal.App.3d 692; People v. Gamez (1991) 235 Cal.App.3d 957, 969-976; In re Alberto R. (1991) 235 CA3d 1309, 1323-1324.)  The courts are almost dismissive of the constitutional challenges because, in their opinion, the “terms of the statute” ensure that “mere membership” in a criminal street gang will not be punished and that groups or associations whose primary purpose is not the commission of crime will be excluded from coverage.  (See People v. Gamez, supra, Cal.App.3d at 970-971, 973-974; In re Alberto R., supra, 235 Cal.App.3d at 1324.)  “It is not the association with other individuals alone which section 186.22 addresses, but the association with others for the purpose of promoting, furthering or assisting them in the commission of crime.”   (People v. Gamez (1991) 235 Cal.App.3d 957, 971.)

Penal Code § 182.5 is different from § 186.22 in one very crucial aspect: it imputes criminal liability for mere membership in a criminal street gang.  § 182.5 criminalizes “benefit[ting] from” gang felonies, without any personal participation or knowledge of the crimes whatsoever.

 

GANG MEMBERSHIP IS CONSTITUTIONALLY PROTECTED

JAY LEIDERMAN WAS THE LEAD ATTORNEY ON THE LARGEST-EVER PROSECUTION IN VENTURA COUNTY – A 27 DEFENDANT CONSPIRACY CASE INVOLVING THE MEXICAN MAFIA AND DRUG SALES TAXATION AND EXTORTION

 

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