{"id":4048,"date":"2013-10-19T23:28:36","date_gmt":"2013-10-19T23:28:36","guid":{"rendered":"http:\/\/www.markagallagher.com\/socaldefenselawyers\/they-are-speaking-in-code-what-kind-of-motion-or-waiver-is-that\/"},"modified":"2020-10-30T20:46:37","modified_gmt":"2020-10-30T20:46:37","slug":"they-are-speaking-in-code-what-kind-of-motion-or-waiver-is-that","status":"publish","type":"post","link":"https:\/\/www.markagallagher.com\/socaldefenselawyers\/they-are-speaking-in-code-what-kind-of-motion-or-waiver-is-that\/","title":{"rendered":"They are Speaking In Code–What Kind of Motion or Waiver is That?"},"content":{"rendered":"

This article was original published in Crime Justice & America, Alameda County Edition, 2009.<\/p>\n

THEY ARE SPEAKING IN CODE\u2013What Kind of Motion or Waiver is That?\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 By:\u00a0\u00a0\u00a0\u00a0 Andrew D\u00f3sa<\/strong><\/p>\n

Do you remember getting a box of Cracker Jacks, that caramel covered popcorn with peanuts?\u00a0 There was always some kind of \u201cprize\u201d inside.\u00a0 The coolest had to be the secret decoder ring.<\/p>\n

When you are forced to deal with the criminal justice system in California, it is only a matter of time before you hear people speaking in legal code.\u00a0 How do you decipher this strange language?\u00a0 Is there a legal decoder ring?<\/p>\n

There is no easy answer.\u00a0 There is no legal decoder ring in a Cracker Jacks box.\u00a0 But you can keep this article.\u00a0 We will identify, define and explain some of the more common code words and secret case names.<\/p>\n

APPRENDI-BLAKELY WAIVER:\u00a0 Blakely v. Washington (2004) 524 US 296, 124 SCt 2531, 159 L Ed2d 403, 124 SCt 2531; Apprendi v. New Jersey (2000) 530 US 466, 147 LEd 2d 435, 120 SCt 2348.
\nDefendant may waive the right to a jury trial of facts in aggravation or an enhancement (which make the upper term more likely to be imposed.)\u00a0 Waiving this right may make it easier to get the more favorable terms of a plea bargain\u00a0 Apprendi requires a prosecutor to specifically allege and prove, or have defendant admit, any enhancement.\u00a0 When the court uses a fact (other than the fact of a prior conviction) not proven to the jury or admitted by defendant to impose a sentence beyond the statutory maximum sentence, the court violates defendant\u2019s Sixth and Fourteenth Amendment rights.<\/p>\n

ARANDA-BRUTON RULE\/MOTION\u00a0 People v. Aranda (1965) 63 C2d 518, 47 CR 353; Bruton v. United States (1968) 391 US 123, 20 LEd2d 476, 88 SCt 1620.
\nWhen two or more defendants are jointly charged, and one made an out-of-court statement which blames the other, the co-defendant may move to sever his case from the accuser\u2019s case. If the statement cannot be left out of the case, and harm to the co-defendant cannot be avoided, the prosecution must agree not to use the statement or the severance must be granted.<\/p>\n

ARBUCKLE WAIVER:\u00a0 People v. Arbuckle (1978) 22 C3d 749, 150 CR 778, 587 P2d 220.
\nDefendant can waive his right to be sentenced by the same judge who presided over the trial or who accepted the change of plea.\u00a0 Don\u2019t waive this right if there is any real chance the sentencing judge might not accept the terms of your deal and the judge taking the plea would accept it.\u00a0 Without a knowing and intelligent Arbuckle waiver by defendant, any sentencing imposed by another judge is unlawful.<\/p>\n

BAIN ERROR People v. Bain (1971) 5 C3d 839, 97 CR 684, 489 P2d 564.
\nAt trial, a prosecutor cannot give his personal opinion that defendant is guilty unless the prosecutor specifically says the opinion is based on the trial evidence.<\/p>\n

BEAGLE-CASTRO MOTION People v. Beagle (1972) 6 C3d 441, 99 CR 313, People v. Castro (1985) 38 C3d 301, 211 CR 719.
\nIf defendant has one or more prior felony convictions, he can ask the court to decide if, under Evidence Code section 352, impeachment of defendant by one or more of the priors would be unduly prejudicial\/unfair to defendant.<\/p>\n

BATSON-WHEELER CHALLENGE:\u00a0 Batson v. Kentucky (1986) 476 US 79, 90 LEd2d 69, 106 SCt 1712; People v. Wheeler (1978) 22 C3d 258, 148 CR 890.\u00a0 The Equal Protection Clause of the US Constitution\u2019s Fourteenth Amendment impacts jury pools and selection.\u00a0 Defendant is entitled to a jury panel approximating the ideal cross-section of the community as a random drawing would allow, though this does not guarantee the jury will have a member of defendant\u2019s \u201cgroup\u201d or that the jury includes any particular group of individuals.\u00a0 During jury voir dire, peremptory challenges by any party may not be used to systematically eliminate jurors who are members of \u201ccognizable\u201d groups (with characteristics like race, ethnicity or religion).\u00a0 See Cal. Code of Civil Procedure \u00a7231.5.<\/p>\n

BOYD ERROR:\u00a0 People v. Boyd (1985) 38 C3d 762, 215 CR 1.\u00a0 In death penalty cases, the trier of fact may be able to consider violent conduct or threats of violence which are crimes other than those involved in the case being prosecuted when determining the sentence.\u00a0 See Penal Code Sec. 190.3(b).<\/p>\n

BOYKIN-TAHL RIGHTS:\u00a0 Boykin v. Alabama (1969) 395 US 238, 23 LEd2d 274, 89 SCt 1709; In re Tahl (1969) 1 C3d 122, 81 CR 577.\u00a0\u00a0 Before the court can accept a guilty plea, the record must show defendant was aware of and then knowingly and intelligently waived the rights to a jury trial, to confront witnesses, and against self-incrimination.\u00a0 Further, defendant must be advised of the nature of the charge(s) and consequences of pleading guilty.\u00a0 These rights apply to allegations or enhancements admitted when the guilty plea is entered.<\/p>\n

BRACAMONTE MOTION: People v. Bracamonte (1981) 119 CA3d 644, 174 CR 191.
\nWhen charged with a “status” enhancement (e.g., having a prior conviction or committing a crime while on bail in another case), defendant may move to bifurcate the trial so the jury is not prejudiced by knowing about the “status” enhancing allegation. See also People v. Calderon (1994) 9 C4th 69, 36 CR2d 333.<\/p>\n

BRADY DISCOVERY:\u00a0 Brady v. Maryland (1963) 373 US 83, 10 LEd2d 215, 83 SCt 1194.
\nThe Due Process Clause of the Fourteenth Amendment requires the State to disclose favorable evidence material either to guilt or to punishment.\u00a0 \u201cMaterial\u201d means there is a reasonable probability the outcome of the trial would have been different if the evidence had been disclosed.<\/p>\n

BUNNELL ADVISEMENTS OR \u201cSLOW\u201d PLEA:\u00a0 Bunnell v. Superior Court (1975) 13 C3d 592, 119 CR302.
\nIn court trials, the parties may submit evidence that is not live testimony (e.g., a preliminary hearing transcript, police reports or facts stipulated to by the parties). Typically, in these cases it is understood defendant is not contesting guilt.\u00a0 There may even be an agreement to the sentence imposed, if the court finds defendant guilty.<\/p>\n

BURKS WAIVER:\u00a0 People v. Burks (1998) 66 CA4th 232, 77 CR2d 840.
\nDefendant may waive time served credits on a probation violation to get local time rather than a prison commitment.\u00a0 However, if defendant later violates probation, the waiver of those credits remains.\u00a0 In effect, once waived, those credits are forever waived.<\/p>\n

CHAPMAN STANDARD Chapman v. California (1967) 386 US 18, 17 LEd2d 705, 87 SCt 824.\u00a0 When appellant establishes his federal constitutional rights are violated, reversal is required unless the prosecutor convinces the court beyond a reasonable doubt the verdict would have been different had the violation not occurred.\u00a0 If the reasonable doubt standard is not met, the violation is harmless error.\u00a0 See Aranda-Bruton rule above.<\/p>\n

CRAWFORD ERROR Crawford v. Washington (2004) 541 US 36, 158 LEd2d 177, 124 SCt\u00a0 1354.
\nFollowing Aranda-Bruton, Crawford concluded that admitting into evidence a defendant\u2019s out-of-court (extrajudicial) statement violated the co-defendant\u2019s Sixth Amendment right to confront the speaker of the statement.<\/p>\n

CRUZ\/VARGAS WAIVER: Cruz v. People (1988) 44 C3d 1247, 246 CR 1, 752 P.2d 439; People v. Vargas (1990) 223 CA3d 1107.\u00a0 And see People v Masloski (2001) 25 C4th 1212, 108 CR2d 484, 25 P.3d 681.
\nPenal Code Section 1192.5 allows a defendant to withdraw a plea if the sentencing judge does not agree to the plea bargain, even if the defendant does not appear at sentencing.\u00a0 (That failure to appear would be a separate offence under Penal Code \u00a7\u00a71320 and 1320.5.)\u00a0 By waiving the Cruz right, defendant might get a harsher or maximum sentence if he does not appear at sentencing, commits a new offense before sentencing, or by failing to report to probation.\u00a0 If not advised of the right to withdraw his plea at sentencing, defendant must show this is not just harmless error.<\/p>\n

DENNIS H. HEARING:\u00a0 In re Dennis H. (1971) 19 CA3d 350, 96 CR791.
\nIn juvenile cases, the minor has the right to a re-hearing if the probation officer or preparer of the reports is not present at the detention hearing.\u00a0 The re-hearing has been called a contested detention hearing.<\/p>\n

DOYLE ERROR:\u00a0 Doyle v. Ohio (1976) 426 US 610, 49 LEd2d 91.
\nWhen defendant remained silent while receiving Miranda warnings, and then made exculpatory statements, the prosecution may not impeach defendant on the later statements by telling the jury about defendant\u2019s initial silence after getting the Miranda warnings.<\/p>\n

ESTEYBAR MOTION Esteybar v. Municipal Court (1971) 5 C3d 119, 95 CR 524.
\nUnder Penal Code Sec. 17(b)(5), defendant can move to reduce a wobbler to a misdemeanor.\u00a0 The DA\u2019s consent is not required.\u00a0 If the motion is granted, the DA cannot re-file the case as a felony.<\/p>\n

EVANS LINEUP:\u00a0 Evans v. Superior Court (1974) 11 C3d 617, 114 CR 121.
\nDefendant may move for a lineup.\u00a0 The motion must be timely, the eyewitness identification is a material issue, and there must be a reasonable likelihood of a mistaken (prior) identification.\u00a0 The new lineup would resolve the issue of the prior mistake.<\/p>\n

FARES MOTION People v. Fares (1993) 16 CA4th 954, 20 CR2d 314; Pen. Code \u00a7 1237.1.
\nIf the trial court miscalculates the pre-sentence credits award, defendant must move to get those credits recognized.\u00a0 Until the motion is made, the issue cannot be raised on appeal. Someone in a work furlough program gets credits when living in county jail, a work furlough facility or halfway house, but does not get credits when not actually\u00a0 in custody.<\/p>\n

FARETTA WAIVER Faretta v. California (1975) 422 US 806, 45 LEd2d 562, 95 SCt 2525.
\nOn a basic showing of competence, a criminal defendant may demand to represent himself at trial.\u00a0 There is no federal constitutional right to self-representation on appeal.<\/p>\n

FRANKS HEARING Franks v. Delaware (1978) 438 US 154, 57 LEd2d 667, 98 SCt 2674.
\nSimilar to a motion to suppress, a Franks motion seeks to \u201ctraverse\u201d or \u201cquash\u201d a warrant.\u00a0 To have a hearing on the motion, defendant must make a substantial preliminary showing that the declaration\/affidavit supporting the warrant contained a false statement that was made knowingly or in reckless disregard of the truth, and the statement was material\u2013\u201cnecessary to the magistrate\u2019s finding of probable cause.\u201d<\/p>\n

GRIFFIN ERROR\u00a0\u00a0 Griffin v. California (1965) 380 US 609, 14 LEd2d 106, 85 SCt 1229.
\nA prosecutor is not permitted to comment to the jury on a defendant’s exercise of the right against self-incrimination.<\/p>\n

HAMMON-REBER MOTION:\u00a0 People v. Hammon (1997) 15 CA4th 1117, 65 CR2d 1, People v. Reber (1986) 177 CA3d 523, 223 CR139, and Penal Code \u00a71054(e).\u00a0 A motion to obtain the psychiatric records of a prosecution witness, this defense right has survived various challenges, as it is supported by the United States Constitution.<\/p>\n

HARVEY WAIVER:\u00a0 People v. Harvey (1979) 25 C3d 754, 159 CR 696.
\nWithout defendant\u2019s waiver, the sentencing court or probation report may not consider facts related to cases or counts dismissed pursuant to a plea deal.\u00a0 The dismissed counts must be \u201ctransactionally related\u201d to the crimes for which defendant is being sentenced.\u00a0\u00a0 With a waiver, defendant can be required to pay restitution to victims of crimes alleged in dismissed or unfiled counts and cases.<\/p>\n

HARVEY-MADDEN RULE:\u00a0 People v. Harvey (1958) 156 CA2d 516, 319 P2d 689; People v. Madden (1970) 2C3d 1017, 88 CR 171.
\nAt a hearing on a Motion to Suppress, the evidence must show the police officer had probable cause to act. The officer can have personal knowledge of facts constituted probable cause. If he did not have personal knowledge, then it must be shown that it was reasonable for him to rely on information he obtained. This information must be “factual,” reliable and specific, not conclusory.<\/p>\n

HITCH-TROMBETTA-YOUNGBLOOD MOTION People v. Hitch (1974) 12 C3d 641, 117 CR 9, 527 P2d 361; California v. Trombetta (1984) 467 US 479, 81 LEd2d 413, 104 SCt 2528; Arizona v. Youngblood (1988) 488 US 51, 102 LEd2d 281, 109 SCt 333.
\nGenerally the \u201cPeople\u201d have the duty to reveal\/preserve information or evidence helpful to the defendant.\u00a0 This means there exists a \u201creasonable possibility\u201d the evidence would be material and favorable.\u00a0 If law enforcement\u2019s loss or destruction of favorable evidence (police officer notes or test results\/samples) infringes defendant’s due process rights, the defendant may get sanctions, and perhaps even a dismissal.\u00a0 Trombetta was a DUI case.\u00a0 The court concluded breath samples did not need to be preserved before the breath analysis test results could be introduced at trial.<\/p>\n

HOBBS MOTION:\u00a0 People v. Hobbs (1994) 7 CA4th 948, 30 CR2d 651.
\nA motion to force the DA to disclose the identity of a material informant.\u00a0 The motion should be granted if the informant is a material witness to guilt or innocence, and denied if the informant only gave information on probable cause.\u00a0 There must be more to the motion than speculation, the desire to cross-examine the informant, or only a prima facie showing.\u00a0 In some situations, the court may have an in camera (private–in the judge\u2019s chambers) hearing.\u00a0 See Penal Code \u00a71042(d) and People v. Flannel (1979) 25 C3d 668, 160 CR 899.<\/p>\n

JOHNSON WAIVER:\u00a0 People v. Johnson (2002) 28 C4th 1050, 123 CR 700, 51 P.3d 913.\u00a0 Defendant can expressly waive credits for time served (or future time to be served) even if that means total time in custody exceeds the maximum term of the sentence.\u00a0 This may allow the court to reinstate probation and impose a one year jail sentence.\u00a0 Prison time can be held over defendant\u2019s head if there is a future probation violation.<\/p>\n

KELLETT RULE: Kellett v. Superior Court (1966) 63 C2d 822, 48 CR 366.
\nThe DA must join in one case all offenses\/counts where the same act or court of action plays a significant part.\u00a0 In Kellett, defendant was convicted of brandishing a weapon and should have also been charged with being an ex-felon in possession of a concealable weapon.<\/p>\n

KELLY\u2013FRYE TEST:\u00a0 People v. Kelly (1976) 17 C3d 24, 130 CR 144; Frye v. United States (DC Cir 1923) 293 F 1013.
\nThe Test concerns admissibility of (new) scientific or experimental tests and their acceptance or recognition in the scientific community.\u00a0 The test does not generally apply to psychologocal or psychiatric evidence or assessments of the mental state of a defendant.\u00a0 See Evidence Code Sec. 801 and Penal Code \u00a7\u00a728 and 29.<\/p>\n

KURTZMAN ERROR People v. Kurtzman (1988) 46 C3d 322, 250 CR 244.
\nThe judge shall instructing the jury to not deliberate on necessarily included lesser offenses unless it first acquits defendant of the greater offense. Kurtzman held that Stone v. Superior Court (1982) 31 C3d 503, 183 CR 647 does not prohibit the jury from considering or discussing a lesser offense before returning a verdict on a more serious offense, but acquittal on the greater charge must be reached before any verdict on a lesser one.<\/p>\n

LEON “GOOD FAITH” EXCEPTION United States v. Leon (1984) 468 US 897, 82 LEd2d 677, 104 SCt 3405.
\nEven if a defendant shows a search warrant was defective or not supported by probable cause,\u00a0 any evidence seized may still be admissible if the officer executing the search warrant reasonably and in good faith believed the warrant was valid.<\/p>\n

LUTTENBERGER MOTION:\u00a0 People v. Luttenberger (1990) 50 C3d 1, 265 CR 690.
\nA motion to secure information on a confidential informant.\u00a0 The informant\u2019s disclosure may not be required if the informant is not a material witness to guilt or innocence, and his information only went to probable cause.<\/p>\n

MARSDEN MOTION People v. Marsden (1970) 2 C3d 118, 84 CR 156.
\nDefendant can move to fire his public defender\/appointed attorney and request another appointed attorney.\u00a0 Defendant may not have to demonstrate inadequate representation or show an irreconcilable conflict with counsel.\u00a0 The court will not necessarily appoint another attorney.<\/p>\n

MASSIAH ERROR:\u00a0 Massiah v. U.S. (1964) 377 US 201, 12 LEd2d 246 84 SCt 1199.
\nMassiah extends defendant\u2019s Miranda rights to cover secretive questioning by an undercover peace officer or agent (an informant or co-defendant\/co-principal.)<\/p>\n

MEJIA ERROR:\u00a0 People v. Mejia (1976) 57 CA3d 574, 129 CR 192.
\nIf government action makes a material witness unavailable (e.g., by deportation), the case must be dismissed.\u00a0 Which cases apply (federal v. California) and what is \u201cmaterial\u201d cloud the issue.\u00a0 A guilty plea waives the right.<\/p>\n

MINOR HEARING:\u00a0 People v. Minor (1980) 104 CA3d 194, 163 CR 501.
\nAn appellate court considering the trial court\u2019s ruling on a Marsden motion can remand the case to the trial court to conduct a Marsden hearing.<\/p>\n

MIRANDA RIGHTS Miranda v. Arizona (1966) 384 US 436, 16 LEd2d 694, 86 SCt 1602.
\nWhen a person is no longer free to leave (i.e., is \u201cunder arrest\u201d or \u201cin custody\u201d), the peace officer must give Miranda warnings:\u00a0 you have the right to remain silent, anything you say can be used against you, you have the right to an attorney, and one will be appointed if you cannot afford one.\u00a0 If the person is arrested, but not given Miranda warnings, his rights are not violated if there is no further communication between the person and officer.<\/p>\n

MORRISSEY HEARING–MORRISSEY-VICKERS RIGHTS\u00a0 Morrissey v. Brewer (1972) 408 US 471, 33 LEd2d 484, 92 Sct 2593; People v. Vickers (1972) 8 C3d 451, 105 CR 305.\u00a0 Morrissey established minimal due process requirements in parole revocation proceedings including evidentiary rules, the standard applied to prove the violation, and a hearing where the violation is proved.\u00a0 Vickers concerns due process requirements for probation revocation hearings.\u00a0 The standard of proof is a preponderance of the evidence (51% of the weight of evidence\u2013enough to tip the scale), not beyond reasonable doubt, as in a criminal case.\u00a0 In Valdivia v. Davis (ED Cal 2002) 206 FSupp2d 1068, a federal court ruled California\u2019s \u201cunitary\u201d parole revocation procedure violated due process.\u00a0 See Valdivia v. Schwartzenegger (ED Cal Civ S-94\u20130671), for the reforms imposed.<\/p>\n

MURGIA MOTION Murgia v. Municipal Court (1975) 15 C3d 28, 124 CR 204.
\nDefendant may challenge an arbitrary\/discriminatory prosecution, typically in two parts.\u00a0 The first is a discovery motion usually for records of other arrests or prosecutions for the same offense.\u00a0 Was this defendant the only one prosecuted for this offense?\u00a0 The second motion, following discovery of the unconstitutional prosecution, seeks dismissal of the charges.<\/p>\n

PITCHESS MOTION Pitchess v. Superior Court (1974) 11 C3d 531, 113 CR 897.
\nA motion to obtain the police officer\u2019s files and discover other complaints against the officer.\u00a0 The information may show a pattern of aggressive behavior by the officer.\u00a0 See City of San Jose v. Superior Court (1993) 5 C4th 47, 19 CR2d 73, Alford v. Superior Court (2003) 29 C4th 1033, 63 P3d 228, 30 CR2d 672, and Evidence Code \u00a71043.<\/p>\n

POPE-FOSSELMAN STANDARD People v. Pope (1979) 23 C3d 412, 152 CR 732; People v. Fosselman (1983) 33 C3d 572, 189 CR 855. See also Strickland v. Washington (1984) 466 US 668, 80 LEd2d 674, 104 Sct 2052.
\nIf you believe you suffered from the ineffective assistance of counsel, read these cases.<\/p>\n

RAMEY WARRANT People v. Ramey (1976) 16 C3d 263, 127 CR 629. Without an arrest warrant (issued by a magistrate who reviewed oral or written statements under oath on probably cause) or \u201cexigent circumstances\u201d, a peace officer cannot lawfully arrest us in our homes.<\/p>\n

ROMERO MOTION Romero v. Superior Court (1996) 13 C4th 497, 53 CR2d 789, 917 P2d 628. See Pen. Code \u00a7\u00a7 667(b)-(i) and 1170.12.
\nThis motion asks the sentencing court to exercise its discretion to strike allegations of a prior conviction although the case was charged under the “Three Strike” statute.<\/p>\n

SERNA MOTION:\u00a0 People v. Serna (1985) 40 C3d 239, 219 CR 420, 707 P2d 793. Defendants have a right to a speedy trial.\u00a0 In misdemeanors, that typically means the trial must begin within one year.\u00a0 Tests under federal and California state cases differ on when the right attaches, when the one year begins.<\/p>\n

SHAPIRO WAIVER:\u00a0 In re Shapiro (1975) 14 C3d 711, 122 CR 768.
\nThe situation:\u00a0 a parolee has fled parole and faces criminal charges out-of-state.\u00a0 Waiving his right to be present at the parole violation hearing here, while still defending the renovation, allows him to serve concurrent time. Without the waiver, he serves his time out-of-state, then returns to face the PV proceeding and the one-year sentence.<\/p>\n

TERRY STOP\u00a0 Terry v. Ohio (1968) 392 US 1, 20 LEd2d 889, 88 SCt 1868.
\nPolice may perform a pat down search for weapons when there is reason to believe the suspect is armed and dangerous.\u00a0 This \u201cstop and frisk\u201d is for outer clothing and not intrusive like a custodial search.<\/p>\n

WATSON STANDARD\/WARNING\u00a0 People v. Watson (1956) 46 C2d 818, 299 P2d 243.
\nIf appellant establishes error not to the level of the Chapman standard or not reversible per se, reversal will still occur if the error resulted in a miscarriage of justice.\u00a0 Stated another way, a more favorable result was reasonably probable if the error had not occurred<\/p>\n

WENDE-ANDERS BRIEF People v. Wende (1979) 25 C3d 436, 158 CR 839; Anders v. California (1967) 386 US 738, 18 LEd2d 493, 87 SCt 1396.\u00a0 \u00a0\u00a0\u00a0 \u00a0Appellate counsel who reviews the entire record and does not identify potentially legitimate issues cannot take a position adverse to the client.\u00a0 He should file a pleading which points to arguably meritorious issues, and request that the appellate court review the record for possible error.<\/p>\n

WEST PLEA People v. West (1970) 3 C3d 595, 91 CR 385.
\nA defendant may plead guilty\/no contest even when he did not commit the crime.\u00a0 This “West plea” may not be a true admission of guilt but \u201cconsent to be punished as if guilty.” See People v. Bradford (1997) 15 C4th 1229, 65 CR2d 145.\u00a0 The defendant still must stipulate there is a factual basis for the plea\u2013which amounts only to an agreement that there is probably cause for the prosecution..<\/p>\n

WHEELER MOTION People v. Wheeler (1978) 22 C3d 258, 148 CR 890.
\nThe prosecutor may not use peremptory challenges to remove jurors who are members of a cognizable group with racial, religious, ethnic or similar characteristics.<\/p>\n

YURKO ERROR In re Yurko (1974) 10 C3d 857, 112 CR 513.
\nBoykin-Tahl requirements, that a defendant understands the rights he waives by an admission, and the consequences of his admission, apply to his admissions of enhancement allegations and priors.<\/p>\n

Andrew D\u00f3sa \u00a9 2008<\/p>\n","protected":false},"excerpt":{"rendered":"

This article was original published in Crime Justice & America, Alameda County Edition, 2009. THEY ARE SPEAKING IN CODE\u2013What Kind of Motion or Waiver is That?\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 By:\u00a0\u00a0\u00a0\u00a0 Andrew D\u00f3sa Do you remember getting a box of Cracker Jacks, that caramel covered popcorn with peanuts?\u00a0 There was always some kind of \u201cprize\u201d inside.\u00a0 The coolest had…<\/p>\n","protected":false},"author":24,"featured_media":0,"comment_status":"closed","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_kad_post_transparent":"","_kad_post_title":"","_kad_post_layout":"","_kad_post_sidebar_id":"","_kad_post_content_style":"","_kad_post_vertical_padding":"","_kad_post_feature":"","_kad_post_feature_position":"","_kad_post_header":false,"_kad_post_footer":false,"footnotes":""},"categories":[19,76],"tags":[22,6],"class_list":["post-4048","post","type-post","status-publish","format-standard","hentry","category-california-criminal-law-blog","category-know-your-rights-constitutional-law-blog","tag-criminal-defense","tag-criminal-law"],"_links":{"self":[{"href":"https:\/\/www.markagallagher.com\/socaldefenselawyers\/wp-json\/wp\/v2\/posts\/4048","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.markagallagher.com\/socaldefenselawyers\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.markagallagher.com\/socaldefenselawyers\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.markagallagher.com\/socaldefenselawyers\/wp-json\/wp\/v2\/users\/24"}],"replies":[{"embeddable":true,"href":"https:\/\/www.markagallagher.com\/socaldefenselawyers\/wp-json\/wp\/v2\/comments?post=4048"}],"version-history":[{"count":1,"href":"https:\/\/www.markagallagher.com\/socaldefenselawyers\/wp-json\/wp\/v2\/posts\/4048\/revisions"}],"predecessor-version":[{"id":5337,"href":"https:\/\/www.markagallagher.com\/socaldefenselawyers\/wp-json\/wp\/v2\/posts\/4048\/revisions\/5337"}],"wp:attachment":[{"href":"https:\/\/www.markagallagher.com\/socaldefenselawyers\/wp-json\/wp\/v2\/media?parent=4048"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.markagallagher.com\/socaldefenselawyers\/wp-json\/wp\/v2\/categories?post=4048"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.markagallagher.com\/socaldefenselawyers\/wp-json\/wp\/v2\/tags?post=4048"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}