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THE DEFENSE MOVES TO EXCLUDE ANY 1101b 1101(B) EVIDENCE OR EVIDENCE OF OTHER PRIOR CRIMES OR BAD ACTS

Generally, evidence of other crimes is inadmissible when offered solely to prove the accused’s criminal disposition or propensity to commit the crime charged, because the probative value of such evidence is outweighed by its prejudicial effect. (Evidence code section 1101b 1101(b), People v. Kelley (1967) 66 Cal.2d 232, 57 Cal Rptr 363, 424 P2d 947.)  Ordinarily, evidence of a defendant’s commission of other crimes is admissible only where such evidence tends to show guilty knowledge, motive, intent, or presence of a common design or plan. (Id.)

The purpose of the rule precluding evidence of other crimes offered solely to prove the accused’s criminal disposition or propensity to commit the crime charged is to avoid placing him in a position of having to defend against crimes for which he was not charged and to guard against the probability that evidence of other crimes with little bearing on his actual guilt would assume undue proportions and unnecessary prejudice in the jurors’ minds, as well as to promote judicial efficiency by restricting proof of extraneous crimes. (People v. Sam (1969) 71 Cal.2d 194, 77 Cal Rptr 804, 454 P2d 700.)

Any doubt in the connection of the defendant’s prior offenses to the current charges should be resolved in favor of the defendant.  (Id.)

In order to admit evidence of uncharged offenses to prove the existence of a common design or plan, a greater degree of similarity between the charged and uncharged offenses is required than the degree required to prove the defendant’s intent. In establishing a common design or plan, evidence of uncharged misconduct must demonstrate not merely a similarity in the results, but such a concurrence of common features that the various acts are naturally to be explained as caused by a general plan of which they are the individual manifestations. To establish the existence of a common design or plan, the common features must indicate the existence of a plan rather than a series of similar spontaneous acts, but the plan thus revealed need not be distinctive or unusual. In the same manner, evidence that the defendant has committed uncharged criminal acts that are similar to the charged offense may be relevant if these acts demonstrate circumstantially that the defendant committed the charged offense pursuant to the same design or plan he or she used in committing the uncharged acts.  (People v. Ewoldt (1994) 7 Cal.4th 380, 27 Cal Rptr 2d 646, 867 P2d 757.)

Three requirements must be met before evidence of other crimes is admitted under Evidence Code section 1101: 1) the evidence must be relevant to some material fact at issue; 2) it must have a tendency to prove that fact; and 3) admissibility must not contravene policies limiting its admission. The latter requirement takes account of policies barring evidence which tends to prove guilt by proving disposition to commit crime, those barring use of prejudicial cumulative evidence, and the statutory provision (Evidence Code section 352) permitting exclusion of evidence when its probative value is outweighed by its prejudicial effect. (People v. Bigelow (1984) 37 Cal.3d 731, 209 Cal Rptr 328, 691 P2d 994.)   For the purpose of admitting evidence under Evidence Code section 1101(b), which makes admissible evidence of a criminal defendant’s prior criminal acts where the evidence is relevant to prove motive, intent, plan, or guilty knowledge, the offered evidence must tend logically, naturally, and by reasonable inference to prove the issue upon which it is offered. Also, when evidence of prior offenses is presented to a jury, there is inherent danger of prejudice to an accused. Therefore, such evidence should be received with caution and admitted only when its probative value outweighs its prejudicial effect. (People v. Evers (1992, 4th Dist) 10 Cal.App. 4th 588, 12 Cal Rptr 2d 637.)   Evidence Code section 1101(b), permits “other crimes” evidence if its purpose is to prove something other than a disposition to commit the crime charged. Its admissibility is carefully monitored and depends upon three principal factors: (1) the materiality of the fact to be proved or disproved; (2) the tendency of the uncharged crime to prove or disprove the material fact; and (3) the existence of a rule or policy requiring the exclusion of relevant evidence. To satisfy the materiality requirement, the fact sought to be proved must actually be in dispute. In deciding whether evidence of other crimes has a tendency to prove the material fact in dispute, the court must first determine if the uncharged offense serves logically, naturally, and by reasonable inference to establish that fact. To determine if there is a rule or policy requiring exclusion of the evidence, the court must consider that Evidence Code section 1101(a), expressly prohibits such evidence if the only theory of relevance is that the accused has a propensity to commit the crime charged, and that there is a grave danger of prejudice when evidence of an uncharged crime is given to a jury. Also, the evidence will not be admitted, even for a legitimate purpose, if it is too remote, and it must only be used if it has substantial probative value.  If there is any doubt, the evidence should be excluded.  (Blackburn v. Superior Court (1993, 4th Dist) 21 Cal.App.4th 414, 27 Cal Rptr 2d 204.)

Evidence of an accused’s prior offenses have probative value only when it tends logically, naturally and by reasonable inference to establish any facts material for the people, or to overcome any material matter sought to be proved by the defense. (People v. Haston (1968) 69 Cal.2d 233, 70 Cal Rptr 419, 444 P2d 91.)  Evidence of other crimes is inadmissible as regards guilt when it is offered solely to prove criminal disposition; the probative value of such evidence as to the crime charged is outweighed by its prejudicial effect. However, such evidence may be properly admissible if it is offered to prove a fact material to the charged crime and meets the general test of relevancy as to such fact. (People v. Durham (1969) 70 Cal.2d 171, 74 Cal Rptr 262, 449 P2d 198.)  Here, MR. BROWN’S sole prior conviction has no probative value in the current matter.

Regardless of the probative value of evidence of other crimes, the admission of such evidence involves the risk of serious prejudice and is always to be received with extreme caution. (People v. Griffin (1967) 66 Cal.2d 459, 58 Cal Rptr 107, 426 P2d 507.)  Evidence of other crimes, if offered solely to prove criminal disposition or propensity on the part of the accused to commit the crime charged, must be excluded so as to avoid placing the accused in a position where he must defend against crimes with which he has not been charged, to guard against the probability that evidence of other criminal acts, having little bearing on the question whether defendant committed the charged crime, would assume undue proportions and unnecessarily prejudice defendant, and to promote judicial efficiency; in short, because its probative value is outweighed by its prejudicial effect. (People v. Stanley (1967) 67 Cal.2d 812, 63 Cal Rptr 825, 433 P2d 913.)  Elements upon which the balancing process will favor probative value and admissibility of evidence of other crimes include motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Variations on some of these include elements such as proof of conspiracy where relevant and proof of the actor’s mental state in association with motive for the crime charged. (People v. Lynn (1971) 16 Cal.App.3d 259, 94 Cal Rptr 16.)  The purpose of the rule precluding evidence of other crimes offered solely to prove an accused’s criminal disposition or propensity to commit the crime charged is not only to promote judicial efficiency by restricting proof of extraneous crimes but also to avoid placing the accused in a position of having to defend against crimes for which he was not charged, and to guard against the probability that evidence of other crimes with little bearing on his actual guilt would assume undue proportions and unnecessarily prejudice him in the juror’s minds. (People v. Haston supra. at 233.)  Evidence of an accused’s other crimes, in view of its inherently prejudicial effect, should be scrutinized with great care, and should be received only when its connection with the charged crime is clearly perceived. (People v. Durham supra. at 171.)

 

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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.

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Jay Leideraman Law handles all of your legal needs in the criminal law arena. He covers cases from traffic tickets to murder and everything in between.

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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IRRELEVANT EVIDENCE MUST BE EXCLUDED AT TRIAL

The California Supreme Court has repeatedly held that only relevant evidence is admissible. (Cal. Evid. Code § 350; People v. Heard (2003) 31 Cal.4th 946, 972-973; People v. Scheid (1997) 16 Cal.4th 1; People v. Crittenden (1994) 9 Cal.4th 83, 132; and People v. Garceau (1993) 6 Cal.4th 140, 176-177.) Evidence Code section 210 defines relevant evidence as evidence “having any tendency in reason to prove or disprove any disputed fact that is of consequence” in the litigation. The trial court has broad discretion in determining relevance issues. (People v. Heard, supra., 31 Cal.4th at 973; People v. Scheid, supra., at 13, 14.)  In this case, MR. BROWN asks the court to exclude all irrelevant evidence at trial.

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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.

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Jay Leiderman, a colorful and creative attorney is known for his defense of alleged cybercriminals.

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 IS ENTITLED TO HAVE THE JURY USE ALL AVAILABLE RELEVANT FACTS TO GRADE THE QUALITY OF THE INVESTIGATION AND DECIDE IF THE POLICE DID A POOR JOB

 

In Kyles v. Whitley (1995) 514 U.S. 419, 445-449, the United States Supreme Court holds that the defense can attack the police in front of the jury both by cross-examination and in closing argument, concerning shoddy, slovenly, inadequate, or biased police investigation work.  (See also United States v. Hanna (9th Cir. 1995) 55 F.3d 1456, and United States v. Sager (9th Cir. 2000) 227 F.3d 1138, 1145-1146, relying on Kyles.)

In Sager the court said:  “[T]he district court committed plain error and abused its discretion by instructing the jury not to ‘grade’ the investigation.” (Id. at 1145.)  “Details of the investigatory process potentially affected Inspector Morris’s credibility and, perhaps more importantly, the weight to be given to evidence produced by his investigation. Defense counsel may have been fishing for flaws, but it is obvious that he cast his bait in a promising pond.”  (Id.)  To fail to allow this line of inquiry impinges on a defendant’s state and federal constitutional rights to confrontation and compulsory process.  (See Pointer v. Texas (1965) 380 U.S. 400, 403- 405.)

The defense has wide latitude in cross-examination of prosecution witnesses in a criminal case.  (People v. Ormes (1948) 88 Cal.App.2d 353, 359; People v. Watson (1956) 46 Cal.App.2d 818, 827.)  “We construe the [proper scope of cross-examination], at least ordinarily, that when a prosecution witness testifies to facts tending to establish the guilt of one criminally accused, that witness may be cross-examined on all relevant and material matters preceding, concurring with, or following the criminal event, within his knowledge and reasonably related to the issue of guilt or innocence.”  (In re Victor F. (1980) 112 Cal.App.3d 673, 682-683, citing Gallaher v. Superior Court (1980) 103 Cal.App.3d 666, 671.)

 

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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.

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Jay leiderman addresses a crowd at a protest after celebrated hacktivist Jeremy Hammond was sentenced

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 MEDICAL RECOMMENDATION FOR THE USE OF CANNABIS MAY NOT BE CHALLENGED AT TRIAL BY THE PROSECUTION NOR “SECOND GUESSED” BY THE JURY; THE MEDICAL MARIJUANA DOCTOR’S RECOMMENDATION IS FINAL AND NOT SUBJECT TO ATTACK

The prosecution may not challenge or have the jury “second guess” the MEDICAL MARIJUANA DOCTOR’s recommendation for the use of marijuana; as stated in People v. Spark (2004)121 Cal.App.4th 259:

“As is evidenced by the entirety of the language of subdivision (b)(1)(A) and the language of subdivision (d) of section 11362.5, the question of whether the medical use of marijuana is appropriate for a patient’s illness is a determination to be made by a physician. A physician’s determination on this medical issue is not to be second-guessed by jurors who might not deem the patient’s condition to be sufficiently ‘serious.'” (emphasis added)

 

People v. Spark 121 cal.App.4th 259, 268.

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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.

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Jay Leiderman is a California State Bar Board of Legal Specialization Certified Criminal Law Specialist

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 BURDEN OF PROOF IS ON THE PEOPLE TO ESTABLISH BEYOND A REASONABLE DOUBT DEFENDANT WAS “UNLAWFULLY” CULTIVATING MEDICAL MARIJUANA; IN OTHER WORDS, THE PEOPLE MUST PROVE THAT THE DEFENDANT DID NOT RAISE THE MEDICAL MARIJUANA DEFENSE TO THE SATISFACTORY LEGAL STANDARD

Once the defendant has come forward with the evidence sufficient to raise a reasonable doubt about the lawfulness of his marijuana cultivation the prosecution has the burden of establishing that the elements of the medical marijuana defense do not exist. As stated in People v. Jones (2003) 112 Cal.App.4th 341, 350:

“If, to prevail at trial, the defendant is required only to raise a reasonable doubt as to whether he had a physician’s approval to use marijuana, then no greater burden can be imposed on the defendant at a pretrial section 402 hearing called to challenge his Compassionate Use Act defense. If the defendant produces evidence at the section 402 hearing sufficient to raise a reasonable doubt as to whether he had a physician’s approval to use marijuana, then the gatekeeping function of a section 402 hearing is satisfied and the defense should go to the jury to decide. Only if the defendant fails to produce sufficient evidence to raise a reasonable doubt about the existence of an approval is the trial court justified in keeping the matter from the jury.”

 

People v. Jones (2003) 112 Cal.App.4th 341, 350

 

CALCRIM 2370, correctly sets the burden and states the following:

“Possession or cultivation of marijuana is lawful if authorized by the Compassionate Use Act. The Compassionate Use Act allows a person to possess or cultivate marijuana (for personal medical purposes/ [or] as the primary caregiver of a patient with a medical need) when a physician has recommended [or approved] such use. The amount of marijuana possessed or cultivated must be reasonably related to the patient’s current medical needs. The People have the burden of proving beyond a reasonable doubt that the defendant was not authorized to possess or cultivate marijuana for medical purposes. If the People have not met this burden, you must find the defendant not guilty of this crime.”

 

            The “BENCH NOTES” to CALCRIM 2370 state the following:

 

“The medical marijuana defense may be raised to a charge of violating Health and Safety Code section 11358. (See Health & Saf. Code, § 11362.5.) The burden is on the defendant to produce sufficient evidence to raise a reasonable doubt that possession was lawful. (People v. Mower (2002) 28 Cal.4th 457, 460 [122 Cal.Rptr.2d 326, 49 P.3d 1067]; People v. Jones (2003) 112 Cal.App.4th 341, 350 [4 Cal.Rptr.3d 916] [error to exclude defense where defendant’s testimony raised reasonable doubt about physician approval]; see also People v. Tilehkooh (2003) 113 Cal.App.4th 1433, 1441[7 Cal.Rptr.3d 226] [defendant need not establish “medical necessity”].) If the defendant introduces substantial evidence, sufficient to raise a reasonable doubt that the possession may have been lawful under the act, the court has a sua sponte duty to give the bracketed paragraph of medical marijuana instructions.” (emphasis added)

 

See, “BENCH NOTES” to CALCRIM 2370.

 

            Despite this volume of case law on the “collective” defense pursuant to Health and Safety Code section 11362.775, the “BENCH NOTES” to CALCRIM 2350 (possession for sale of marijuana) state the following:

“Until courts of review provide further clarification, the court will have to determine whether under the facts of a given case the compassionate use defense should apply pursuant to Health & Saf. Code, §§ 11362.765 and 11362.775.”

 

Thus, the elements of the defenses provided for in the Compassionate Use Act (CUA) and the Medical Marijuana Program (MMP), are as follows,

First, the patients and/or designated primary caregivers were  “qualified patients,” in that a licensed physician had recommended or approved his/[her] personal use of marijuana to treat a condition specified in the CUA (See, H&S §§ 11362.7 and 11362.765);

 

Second, that the quantity being cultivated, to the extent it exceeded six mature or 12 immature marijuana plants, was either for personal medical use and reasonably related to the patients current medical needs (People v. Kelly 47 Cal.4th 1008), or a quantity approved by a physician post arrest (People v. Kelly 47 Cal.4th 1008, 1016, fn.8.;  H&S § 11362.77, subds. (a), (b)).

 

Third, that the marijuana on which the charges are based actually was for his … own personal medical use, or the personal medical use of the patient whom the marijuana was to be provided to under a caregiver, cooperative and/or collective arrangement. See, H&S §§ 11362.5 and H&S 11362.775; People v. Urziceanu (2005) 132 Cal. App. 4th 747, 785).

Thus, once a defendant raises a reasonable doubt that their case involves a group of qualified medical marijuana patients who have collectively cultivated and processed medical marijuana within the statutory guidelines provided by the MMP, that defendant shall not “solely on the basis of that fact be subject to state criminal sanctions under Section 11357, 11358…” (see, H&S 11362.775).

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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.

medical marijuana defense reasonable doubt

Jay Leiderman is a California State Bar Board of Legal Specialization Certified Criminal Law Specialist

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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