Appeals

In an unpublished opinion decided on June 25, 2010, the California Court of Appeal held that the trial court abused its discretion in refusing to grant a trial continuance after appellant’s attorney was arrested on the day of trial.

In early 2007, appellant Tu My Tong retained respondent, the law firm of Casello & Lincoln, to defend her in certain civil matters. Later that year, Casello & Lincoln sued Tong for $82,000 in unpaid attorney’s fees. Tong countersued, claiming legal malpractice.

In April 2008, Tong was without legal representation. After the superior court denied an initial handwritten request for a continuance on July 8, Tong signed a retainer agreement with an attorney, Jacqueline Staten, on July 11. Tong gave Staten her file related to Casello & Linclon’s previous representation of Tong.

Tong filed another handwritten request for continuance on July 17, with trial scheduled four days later. Staten was not present at the hearing and the request was denied.

On July 21, the day trial was set to begin, Staten had not communicated with Tong in ten days and still retained possession of Tong’s file. The court adjourned to July 24.

On July 24, the court learned that Staten had been arrested for stealing from a client. The court nevertheless determined that Tong failed to show good cause for a continuance and trial proceeded. The jury awarded Casello & Lincoln $88,000.

The court of appeal held that Staten’s failure to communicate with Tong, Tong’s lack of access to her file, and Staten’s arrest all demonstrated good cause for a continuance. The appellate court acknowledged the general principle that when the demands of justice conflict with the desire for judicial efficiency, the court must err on the side of justice.

In addition, Casello & Lincoln failed to demonstrate any prejudice by the proposed trial continuance. There had been no previous continuances, and the only witnesses who would testify for Casello & Lincoln were the named partners of the law firm. Based on this analysis, the court of appeal held that the trial court abused its discretion in declining to grant Tong a continuance.

If you or someone you know has been accused of a crime, you will need a dependable attorney who will aggressively defend you. Wallin & Klarich is an AV-rated criminal defense firm with over 30 years experience helping people accused of crimes. Call us today at (888) 280-6839 or visit us at our website at www.wklaw.com. We will be there when you call.

The Wall Street Journal recently reported that former Agriprocessors executive Sholom Rubashkin has filed an appeal with the 8th U.S. Circuit Court of Appeals in St. Louis after being sentenced to 27 years in prison on 86 fraud charges. Rubashkin’s lawyers state that District Court Judge Linda Reade shouldn’t have allowed evidence about the slaughterhouse’s massive immigration raid and further that Rubashkin’s prison sentence is like a life sentence for the 51-year-old. Rubashkin’s fraud scheme collapsed in 2008, not long after the Postville, Iowa-based Agriprocessors became the target of a massive immigration raid. The plant filed for Chapter 11 bankruptcy protection later that year and has since been sold to SHF Industries, which renamed the company Agri Star.

Under the California appeals process, a criminal appeal is a formal request to rehear a case that has already been decided; or rather a request that a new court reconsider the decision of the first court. If there has been a mistake at a trial, either side can file an appeal. However, California law gives criminal defendants just 60 days from the date of their sentencing to file a notice of appeal. Grounds for appeals can include improper rulings by the trial judge regarding evidence, improper jury instructions, and the quality of your representation or other circumstances that may have resulted in an unfair trial.

Practically, it is almost always better to have a new lawyer than the lawyer who represented you at your trial for the appeal. This is because the trial lawyer may not realize some of the errors that occurred during the trial. Furthermore, an appeal is entirely different than a jury trial. The court of appeals decides the case entirely upon the written briefs filed by your attorney and the Attorney General’s office. The final decision by the court of appeals often comes between 12 and 18 months after the defendant was sentenced. If the court reverses the conviction the defendant is entitled to a new trial. If the court affirms the conviction there are other options available.

If you or a loved one have faced an unfair trial it is important that you retain an experienced Southern California appeals attorney. Upon receiving your case, the team of Orange County criminal appeals attorneys at Wallin & Klarich will thoroughly review the transcript of your trial, court filings, and other documents to look for all potential grounds for appeal. Our California appeals lawyers have over thirty years of experience taking on cases just like yours. We will look at the particular facts of your case to determine the best defense strategy available that will result in the best possible outcome. Call us today at 888-749-0034 or visit us online at www.wklawappeals.com. We will be here when you call.

On June 15, 2010, defense attorneys for Dennis Cyrus, Jr., argued before a federal judge that forensic evidence handled by the San Francisco Police Department’s crime lab and leading to Cyrus’ conviction may have been tainted. His attorneys requested that the prosecution disclose a report of the crime lab’s errors.

Cyrus was convicted of murdering three people, including a witness to a federal trial. Cyrus’ attorneys contend that the crime lab’s poor evidence managment requires that the federal court grant Cyrus a new murder trial.

The San Francisco Police Department lab technician at the center of the potential scandal, Deobrah Madden, retired in March under suspicion that she had stolen drugs from the lab. She and other lab workers had earlier testified against Cyrus at his murder trial.

State prosecutors have already dismissed hundreds of narcotics cases because of the San Francisco crime labs’ possible mishandling of trial evidence. The scandal threatens the political campaign of San Francisco District Attorney Kamala Harris, candidate for California attorney general.

The government’s handling of crime evidence is of utmost importance to a fair trial. At Wallin & Klarich, we have over 30 years experience handling all issues related to criminal trial, including evidence. We will ensure that any possible evidence mishandling by the prosecutor will be identified and resolved in a way most favorable to your case. Call us today at (888) 280-6839 or visit us on our website at www.wklaw.com. We will be there when you call.

The California Courts of Appeal recently held when more than one violation of Penal Code Section 288 occurs in more than one jurisdictional territory and the offenses are properly joinable, the jurisdiction lies in any jurisdiction where at least one of the offenses occurred.

In People v. Delgado (No. G041561), the defendant Phillip Delgado sexually molested the son of his girlfriend over a period of 13 years. This happened in Los Angeles County. Delgado also molested a friend’s son in Riverside County in 2003. Delgado was charged for his offenses in Los Angeles and Riverside. The Los Angeles District Attorney agreed to transfer Delgado’s charges to Riverside County. Delgado was tried in Riverside County for the charges in Los Angeles and Riverside. Delgado was convicted of these charges. On appeal, Delgado argued that the court in Riverside did not have jurisdiction over his charges from Los Angeles. Delgado claimed it was a violation of his vicinage rights. Vicinage refers to the area where the jury is drawn from. Delgado argues that his Los Angeles charges should be tried in Los Angeles, in front of a jury from Los Angeles. The court of appeals did not agree and affirmed the trial court’s decision.

The court reasoned that although the Bill of Rights guarantees the right to trial by a jury of the State and district wherein the crime was committed, the vicinage clause is not applicable in a state criminal trial. Therefore, the court did not err when the Los Angeles charges were joined with the Riverside charges.

If you or a loved one has been charged with a criminal matter, it is critical that you talk to an experienced Riverside criminal defense attorney. Knowing the law is only half the battle. There are many procedural matters to be dealt with, as you can see above. At Wallin & Klarich, our attorneys have over 30 years of experience in dealing with all criminal matters. We will guide you through this process and fight to get the best possible result in your case. Call us at (888) 749-0034 or visit us on our website at www.wklaw.com. We will be there when you call.

If you have a loved one that has been convicted of a crime in California, you may be wondering how you can overturn the conviction and continue fighting your family member’s case. You have probably heard that you can appeal the conviction or that you can file a petition for a writ of habeas corpus. You might also be wondering what the difference is between the two.

There are several differences between an appeal and a writ of habeas corpus. Both are part of the appellate process. The primary difference is found in the reason why you are using the appellate process. Appeals are used to correct errors that occurred during the case. In an appeal, the appellate courts only consider what they can find within the “four corners” of the file. They will not consider any new evidence. If you think that the trial judge made some legal error during the course of the criminal case, then you will want to file an appeal. An appeal is not used if you just want another stab at proving innocence in front of a jury or judge.

A writ of habeas corpus, on the other hand, can be used if you want the appellate court to consider evidence that the trial judge might not have had. The habeas petition is for situations when a legal error occurred, as we say, outside the “four corners” of the court file. To win a habeas petition, you have to prove that the legal error that occurred actually resulted in a loss of the defendant’s rights.

It is sometimes difficult to know whether or not you need to file an appeal or a writ of habeas corpus. In fact, sometimes both need to be filed. Before you proceed with either, you should also consult a knowledgeable California appeals criminal defense lawyer who handles appeals and writs of habeas corpus. At Wallin & Klarich, our attorneys have over 30 years of experience in handling all types of criminal matters. Our attorneys have extensive knowledge of the appellate process. Call us today at (888) 749-0034 or visit us on our website at www.wklaw.com. We will be there when you call.

A recent United States Supreme Court decision on the case of Marcus A. Wellons v. Hilton Hall, Warden determined that a defendant is entitled to a full hearing when there is possible misconduct on the part of the court.

Petitioner Marcus Wellons was convicted in Georgia state court of rape and murder and sentenced to death. The trial seemed like an open and shut case. However, after the trial’s conclusion, the defense counsel learned of the unusual events that transpired behind the scenes during the course of the trial, including unreported isolated contact between the jury and judge, a planned reunion with the jurors and bailiff, and “either during or immediately following the penalty phase, some jury members gave the trial judge chocolate shaped as male genitalia and the bailiff chocolate shaped as female breasts.” The judge did not report any of these events to the defense.

Neither Wellons nor any court knew what happened during these events or what prompted such “gifts.” Wellons’ attorneys repeatedly filed motions to develop evidence, seek discovery, and hold evidentiary hearings, all of which were denied. Wellons continued to appeal these decisions, and filed a petition for writ of certiorari (a request to the U.S. Supreme Court to review a decision).

The United States Supreme Court decided to review Wellons’ case and determined that the defendant was legally entitled to compel discovery and a full evidentiary hearing on his claim of possible court misconduct.

There is a potential for serious misconduct from the judge, jurors, and courtroom officials in criminal trials. It is important to have the experienced Southern California criminal appeals attorneys from Wallin & Klarich represent you if you or a loved one has been found guilty of a crime after a trial. Our attorneys have the knowledge and expertise you need if you are facing the need for an appeal. Our attorneys may decide it is important to look into courtroom misconduct issues in your case. The attorneys at Wallin & Klarich can be reached by phone at 1-888-749-0034 or through our website at www.wklaw.com. We will be there when you call.

A recent California Court of Appeal decision, People v. Katzenberger, held that there was prosecutorial misconduct when the prosecutor used an incomplete jigsaw puzzle to show how ‘beyond a reasonable doubt’ works.

The prosecution’s Power Point presentation consisted of eight puzzle pieces forming a picture of the Statue of Liberty. The first six pieces came onto the screen sequentially, leaving two additional pieces missing. The prosecutor argued it was possible to know what was depicted “beyond a reasonable doubt” even without the missing pieces. The prosecutor then added the two missing pieces to show the picture was in fact the Statue of Liberty. The trial court overruled defendant’s objection to the presentation. On appeal, the Defendant claimed that reversal is required because the prosecutor’s Power Point presentation was prosecutorial misconduct belittling the reasonable doubt standard. The Court of Appeals agreed.

As the California Supreme Court recently explained, “The standards governing review of misconduct claims are settled.” A prosecutor who uses deceptive or reprehensible methods to persuade the jury commits misconduct, and such actions require reversal under the federal Constitution when they infect the trial with such “‘unfairness as to make the resulting conviction a denial of due process.’” (People v. Cash (2002) 28 Cal.4th 703, 733.) Under state law, a prosecutor who uses such methods commits misconduct even when those actions do not result in a fundamentally unfair trial. In this case, it is clear that the prosecution used methods used by the prosecutor (using an incomplete iconic image to distort the view of “beyond a reasonable doubt”) were deceptive.

The Appeals court cautioned that prosecutors who are tempted to enliven closing argument with visual aids that using such aids to illustrate the “beyond a reasonable doubt” standard is dangerous and unwise. The California Supreme Court has recognized the difficulty and peril inherent in such a task, and has discouraged ‘experiments’ by trial courts in defining the ‘beyond a reasonable doubt’ standard. By a parity of reasoning, similar perils undoubtedly attend a prosecutor’s attempt to reduce the concept of guilt beyond a reasonable doubt to a mere line on a graph, chart (or Power Point presentation).

In all criminal cases, it is important to have an experienced Southern California criminal appeals attorney on your side. The attorneys at Wallin & Klarich have over 30 years experience handling criminal and appellate matters. Our attorneys have the skills and expertise to provide you with the best possible defense. Prosecutors often engage in deceptive and reprehensible methods to persuade the jury and it is the duty of a good defense attorney to object and file a timely appeal. The attorneys at Wallin & Klarich can be reached by phone at 1-888-749-0034 or through our website at www.wklaw.com.