CALIFORNIA

ATTORNEYS
FOR CRIMINAL
JUSTICE

GREAT MOMENTS
IN COURT ROOM
DEATH PENALTY HISTORY

OFF THEN ON AGAIN

TECHNOLOGY
FOR THE
DEFENSE

JESSIE MORRIS
MEMBER SPOTLIGHT

CALIFORNIA BAIL REFORM

After Humphrey, SB 10 and the 2020 Ballot Bail Referendum

PROP 47 ON REVIEW
 ANNUAL SEMINARS
CACJ members receive discounted rates to seminars that promote unique educational and network-
ing opportunities. CACJ's seminars feature masters of contemporary trial tactics, state and nationally
recognized scholars, and experts on critical legal issues. These respected presenters provide
substantial insight into the issues that challenge the criminal defense bar. Visit www.cacj.org.

E ARLY R EGISTRATION R ATES O PEN N OW T HROUGH N OVEMBER 1 ST

CRIMINAL DEFENSE SEMINAR DECEMBER 6 & 7, 2019
MEET PROMINENT ATTORNEYS FROM THROUGHOUT CALIFORNIA AND CONNECT WITH LEADERS
IN CRIMINAL JUSTICE REFORM AT CACJ’S 46TH ANNUAL CRIMINAL DEFENSE SEMINAR &
AWARDS , DECEMBER 6-7TH. REGISTER TODAY AT WWW.CACJ.ORG.

CAPITAL CASE DEFENSE SEMINAR FEBRUARY 14-16, 2020

EACH YEAR CACJ AND CALIFORNIA PUBLIC DEFENDERS ASSOCIATION CO-SPONSOR THE
CAPITAL CASE DEFENSE SEMINAR IN MONTEREY, CALIFORNIA. THE FOUR-DAY PROGRAM
INCLUDES LECTURES, PLENARY SESSIONS, AND SPECIALIZED WORKSHOPS. SAVE THE DATE!

FORENSIC SCIENCE AND THE LAW APRIL 3 & 4, 2020

BIG NAMES. BIG SCIENCE; A BIG-TIME CLE EXPERIENCE! DON'T MISS THIS GREAT
OPPORTUNITY FOR A NO-NONSENSE, NATIONAL NETWORKING CLE FEATURING THE LEADING
FACULTY IN THEIR RESPECTIVE FIELDS. THIS TWO-DAY EVENT IS PRODUCED IN PARTNERSHIP
WITH THE NATIONAL ASSOCIATION OF CRIMINAL DEFENSE LAWYERS (NACDL).

DUI RULES OF THE ROAD VISIT CACJ.ORG

THIS RENOWN DUI PROGRAM PROVIDES THE LATEST LEGAL AND TACTICAL UPDATES FOR DUI
PRACTITIONERS. IN CALIFORNIA’S CHANGING DUI LANDSCAPE, YOU WILL LEARN ABOUT THE
LATEST LAWS AFFECTING YOUR PRACTICE. VISIT CACJ.ORG FOR INFORMATION.

APPELLATE PRACTICE SEMINAR VISIT CACJ.ORG

CACJ OFFERS A UNIQUE ONE-DAY APPELLATE PRACTICE SEMINAR TAILORED TO ADDRESSING
TIMELY ISSUES IN APPELLATE LAW AND PRACTICE. THE APPELLATE PRACTICE SEMINAR
ALTERNATES FROM NORTH TO SOUTHERN CALIFORNIA. VISIT CACJ.ORG FOR INFORMATION.

Adobe Stock © leungchopan

VISIT THE NEW CACJ WEBSITE - WWW.CACJ.ORG - LAUNCHING FALL 2019

 Vol 45, 2019

in this issue contents

06 Presidents
Message

08 Executive
Director

10 Prop. 47
On Review

14 Death Penalty
Off then On Again

16 Tech
Column

20 California
Bail Reform

28 Spotlight
Jessie Morris
10 In Custodia Legis
30 Legislative
Update

33 Great Moments
in Court History
14 16 20
36 Amicus
Report
Death Penalty Tech for Defense CA Bail Reform
38 Book Governor Newsom suspended
execution of California death row
In this day and age, many of us
are now using slideshows. Most
The “new” bail law in California,
SB 10, was passed after consider-
Reviews
inmates. Meanwhile the DOJ folks use PowerPoint. But there able compromise and amend-
announcement on July 25, 2019, are alternatives. In this column, I’ll ment and was signed into law by
40 Kestenbaum that the federal government review Google Slides in some Governor Brown on August 28,
Korner would resume executions of detail. Tips and tricks for creating 2018. It was to take effect until
federal death row prisoners. your own slideshow. October 1, 2019.

FORUM accepts advertisements
from a variety of sources, but makes no
independent investigation or verification of
any claim or statement contained in the
advertisements.
California Attorneys for Criminal Justice
1555 River Park Dr., Suite 105
Sacramento, CA 95815
Phone: 916-643-1800
Website: http://cacj.org
FORUM Staff Layout Design ©2019 CACJ Published by California
Stephen Munkelt, Esq. Jonathan Barba Attorneys for Criminal Justice
Executive Director Communications Specialist
Law Office of Jacqueline Goodman All rights reserved. The contents of this
Tara Da Re 712 N Harbor Blvd. publication may not be reproduced by
Design & Program Developer Fullerton, CA 92832 any means, in whole or in part, without
Tel: 714.879.5770 the prior written consent of the publisher.
Chayse Fuchino CaliforniaDefenseLawyer.net Published October 1, 2019
Administrative Assistant JonathanBarba.com
Cover photo: Adobe Stock © weyo
Orchid Vaghti, Esq. Back cover: Adobe Stock © leungchopan
Editor
CACJ COMMITTEES
Amicus
Committe
Stephen Dunkle, Chair
John Philipsborn, Chair
Budget
Committee
Allison Zuvela, Chair
CACJ
Foundation
Steve Rease, Chair
CCDS Planning
Committee
Robert Sanger, Chair
Death Penalty
Committee
Nancy Haydt, Chair
Flash
Committee
Ted Cassman
Charles Sevilla
2019 CACJ BOARD OF GOVERNORS - OFFICERS
Executive Director
Stephen Munkelt
2019 CACJ BOARD OF GOVERNORS - MEMBERS
Elias Batchelder, Oakland
David Bigeleisen, San Francisco
Robert Boyce, San Diego
Seth Chazin, Albany
Kate Corrigan, Newport Beach
Elena D'Agustino, Fairfield
Lisa D'Orazio, Oakland
Emily Dahm, Pleasanton
Graham Donath, Riverside
Stephen Dunkle, Santa Barbara
Doug Feinberg, Fresno
Brian N. Gurwitz, Tustin
John Hamasaki, San Francisco
4 2019
Forum Magazine Nominating
Editor Committee
Orchid Vaghti, Chair Jeffery Thoma, Chair
Indigent Defense Public Information
Committee Committee
Kate Corrigan, Chair Jacqueline Goodman, Chair
Legislative Seminars / Webinars
Committee Committee
Elias Batchelder, Chair Jeffery Thoma, Chair
Stephen Munkelt, Chair
Eric Schweitzer, Chair Strategic
Planning
Membership Allison Zuvela, Chair
Committee
Graham Donath, Chair Technology
Committee
Mock Trial Stephen Munkelt, Acting Chair
Committee
Bobbie Stein, Chair
NACDL
Liason
Jeffery Thoma
Officers Jacqueline Goodman, President
Eric Schweitzer, Vice-President
Allison Zuvela, Treasurer
Stephen Munkelt, Secretary
Rick Horowitz, Fresno David Rizk, San Francisco
Dustin Johnson, Sacramento Susan Roe, Los Angeles
Bruce Kapsack, Redding Mark Rosenfeld, Beverly Hills
Nicole Lambros, Santa Cruz Dan Roth, Berkeley
Lisa Zhao Liu, South Pasadena Scott Sanders, Santa Ana
Logan McKechnie, Merced Lou Shapiro, Los Angeles
Robert Marshall, Chico Rourke Stacy, Los Angeles
Matthew Missakian, Long Beach Bobbie Stein, San Francisco
Maria Morga, Oakland Lee Stonum, Santa Ana
Jessica Oats, Oakland Jesse Stout, San Francisco
Alex Post, Oakland Orchid Vaghti, Santa Rosa
Mano Raju, Martinez Charles Windon III, Palos Verdes
Sara Rief, San Francisco Thomas Worthington, Salinas
CACJ LIFE MEMBERS
Richard Alexander Jonathan Franklin Thomas J. Nolan Richard M. Steingard
Cristina C. Arguedas Paul D. Fromson Nancy S. Pemberton John V. Stevens
Daniel L. Barton Ilan Funke-Bilu Douglas L. Rappaport Spencer W. Strellis
Richard P. Berman James R. Homola Mark J. Reichel Edward Tabash
Gerald Blank Richard A. Hutton Timothy B. Rien Robert Tayac
James J. Brosnahan Jennifer L. Keller Dennis Roberts David A. Torres
Blackie Burak Spencer Lane Susan Roe Frank R. Ubhaus
Ted W. Cassman Jay Leiderman Thomas L. Roehr Joe Vandervoort
John Cotsirilos Michael R. Levine Kenneth A Rutherford W. Allan Williams
Tara Da Re Ephraim Margolin H. A. Sala Robert J. Wilson
Jeremy M. Delicino Kristin J. Matsuda Rickard Santwier Christopher H. Wing
John Patrick Dolan Michael R. McDonnell Elisabeth Semel
William H. DuBois Christopher C Melcher Rebecca R Simmons
Jack M. Earley Marcia A. Morrissey Andrew M. Stein

CACJ PATRON MEMBERS

Clyde M. Blackmon Ezekiel E Cortez C. Logan McKechnie Donald M. Re
Christopher Chaney Donald P. Dorfman Alvin S. Michaelson Nedra R Ruiz
Wayland C. Chang Paul Grech, Jr. Richard H. Millard Philip A. Schnayerson
David G Cohen Jan David Karowsky Jon C. Minsloff Allan H. Stokke

CACJ SUSTAINING MEMBERS

Mark A. Arnold James M. Glick Stephen A. Munkelt Charles M. Sevilla
Anne C. Beles Jacqueline Goodman Robert M. Myers Robert L. Shapiro
Robert J Beles Stuart D. Hanlon Barry K. Newman Jeffrey R. Stein
Michael W. Bien Richard G. Hirsch Gregory C. Paraskou Scott A. Sugarman
Robert Boyce Stuart A. Holmes John T. Philipsborn Tony Tamburello
Kate L. Chatfield Dustin D. Johnson Randy S Pollock Orchid Vaghti
Seth P Chazin David J. Kaloyanides Howard R. Price Gail R. Weinheimer
Nanci L. Clarence Barry M. Karl Dennis P. Riordan Lindsay Anne Weston
Stephan A. DeSales Alex Landon Bernard J. Rosen Mia F. Yamamoto
Jeffrey J. Douglas Virginia Landry Michael Rothschild Vicki H. Young
David W. Dratman Leonard Levine D. Mickey Sampson
Dennis A. Fischer Roberto Marquez Robert M. Sanger
Robert S. Gerstein Dennis G. Merenbach Kurt Jenal Seibert

2019 5
Message President
Injustice Will Leave an
Indelible Mark on a Person.
JAC Q U E L I N E
GOODMAN
CACJ PRESIDENT 2019
Jacqueline Goodman is the
2019 president of California
Attorneys for Criminal
Justice. She was elected to
the Board of Governors in
2012 and 2015. In 2016
Goodman was elected to the
CACJ officer position of
Secretary and progressed to
serve as Treasurer and
Vice-President. In 2019
Goodman was elected to the
Board of Directors for
CACJ’s national affiliate
National Association of
Criminal Defense Lawyers.
CaliforniaDefenseLawyer.net
6 2019
President’s Message
J
ust ask Brian Banks, the
exoneree we honored last
December, who served five
years in prison for a crime
he did not commit (or
watch the Netflix docu-
mentary that bears his name). Ask any
person too poor to make bail. Ask any
person, in fact, who stands accused of a
crime in a system that punishes those
who dare to challenge the prosecu-
tion’s claims. We all know the court-
room mantras - the absolute right to
trial, the presumption of innocence, the
prosecution’s burden of proof beyond a
reasonable doubt - but too often those
mantras are lies. Asserting innocence
comes with great peril, and the
overwhelming majority plead guilty, to
avoid a “trial penalty” whether they are
guilty or not. Those who risk trial too
often discover that the power and
resources of the prosecution tilt the
balance toward conviction.
But now is a special time. We have a
unique opportunity for unprecedented
reform. Since its inception, CACJ has
been working to create this opportuni-
ty, and to be prepared to seize it.
Forty-five years ago, as the Watergate
scandal rocked our democratic
institutions, a group of criminal defense
lawyers in California decided to band
together to fight for justice, not only
for their clients, but for everyone,
regardless of status or wealth. CACJ
was formed.
Leaders like Ephraim Margolin spear-
headed our nationally-respected
Amicus Committee, which, now led by
John Philipsborn and Stephen Dunkle,
has helped win victories regarding
compensation for public defenders,
police efforts to circumvent Miranda,
unfair asset forfeiture, civil liberties in
the information age, and so much
more. And through the efforts of many,
including Bob Boyce, the Contempt
Committee has quickly and quietly
come to the aid of countless lawyers in
their hour of need. Thanks to CACJ, no
California defense lawyer is alone in
that courtroom.
Through the leadership of Ignacio
Hernandez over the last several years,
both as our lobbyist and, for a time,
Interim Executive Director, our flagship
Legislative Committee has successfully
sponsored, supported, and/or opposed
criminal justice reform legislation,
breathing life into the promise of equal
justice for all.
It has been my challenge this year, as
CACJ’s 45th president, to honor the
work of thousands of inspired and
talented defenders who have advanced
our mission in the past, and those who
continue to do so. It has been a year of
transition that began with the sudden
loss of our own beloved friend and
leader, Jeff Adachi. Despite his painful
absence, Jeff continues to inspire us to
give voice to the most vulnerable. After
three successful years as Interim

Executive Director, Ignacio Hernandez
turned over the reins to Executive
Director Stephen Munkelt, proving that
there is no shortage of talent among
CACJ’s ranks. We also bid a fond
farewell to some wonderful folks who
contributed so much, including
longtime board member and friend,
Jesse Stout, who retired from our
board last winter.
We have launched CACJ into a new
era by creating an online resource that
we believe will be indispensable to
every criminal defense lawyer in
California. As I write this, the finishing
touches are being put on a new
website, complete with an easily
searchable motions bank, a listserve for
quick guidance and networking, and
easy access to training materials,
member records, and other resources.
We’ve undertaken an ambitious effort
to ensure that attorneys who represent
indigent defendants in all California
communities receive fair compensation.
And, after a few years without it, and
thanks to the leadership of Orchid
Vaghti and the brilliant lawyers whose
work fills these pages, we have brought
back the Forum Magazine– this thing
you’re reading.
As we break ground on many new
fronts, CACJ continues its commitment
to ensuring that California defenders
are the best in the nation. Under the
leadership of Bobbie Stein, Julie Traun,
Orchid Vaghti and others, our presti-
gious Mock Trial Competition contin-
ues to draw teams from top law
schools across the country. CACJ also
continues to bring you top-flight
training in world-class surroundings (be
sure to join us December 6-7, 2019, as
trailblazing lawyers from across the
country convene to teach and inspire
our members at the spectacular Annual
Meeting and Seminar in San Francisco,
all decked out in her holiday glory).
Criminal justice reform is having its
moment. But, such moments come and
go, perhaps once or twice in a lifetime.
CACJ has already seized on the
opportunity to make great gains. There
will always be a need to speak truth to
power, but more than ever we are the
truth and we are the power. What
happens across the country begins
here, with us. We are justice in
California. We are its voice, its heart,
and its life force, and so we must
remain vigilant.
I’m so proud of the work of CACJ, and
so grateful for all those who have
supported its mission. Sweeping gains
on discovery, prosecutorial miscon-
duct, bail reform, and reduced incarcer-
ation rates have been achieved. But,
there is much more to do. In the last
month alone, CACJ, alongside our
fellow state-based criminal defense
associations and the NACDL, quickly
mobilized and launched a successful
campaign to reverse the ABA’s plan to
adopt Resolution 114, which pushed
for shifting the burden in sexual assault
cases and would have resulted in untold
numbers of wrongful convictions. The
California Bar is currently on a path to
lift restrictions on the unauthorized
practice of law; CACJ is poised to
thwart this effort, remaining steadfast in
its commitment to ensure justice and
due process for all accused.
For 45 years, CACJ has provided the
primary forum for lawyers who are
truly committed to freedom and justice
for all. The issues change, but the battle
remains. Each of us fights for one client
at a time, but it is together - through
our membership in CACJ - that we
effect systemic change.
I encourage everyone to join and be a
part of the fight to end the death
penalty, mass incarceration, systemic
racism, disenfranchisement, and the
torture of solitary confinement. If you
are a member, make sure you are on
the new auto-renewal option. Encour-
age other criminal defense lawyers to
become members. Get involved. In a
country which imprisons more people
than any other in the world, and in a
time in which human rights are under
attack right here in the U.S., stand with
CACJ in the name of freedom, justice
and equality. Together we have made a
difference, and together we will
continue to make a difference.
Message President
PAST PRESIDENTS
Steve Rease, Salinas, 2018
Cris Lamb, San Francisco, 2017
Honorable Matthew Guerrero, Oceano, 2016
Jeffrey E. Thoma, Fairfield, 2015
Scott Sugarman, San Francisco, 2014
Robert Sanger, Santa Barbara, 2013
Christopher Chaney, Pasadena, 2012
Jeffrey R. Stein, San Luis Obispo, 2011
Ann C. Moorman, Ukiah, 2010*
Ted W. Cassman, Berkeley, 2009
Rickard Santwier, Pasadena, 2008
Richard Hutton, Pasadena, 2007
Carleen Arlidge, San Jose, 2006
Lynne S. Coffin, San Francisco, 2005
Jack Early, Irvine, 2004
John Cotsirilos, San Diego, 2003
Phillip Schnayerson, Hayward, 2002
Mia F. Yamamoto, Los Angeles, 2001
Jon Minsloff, Santa Cruz , 2000
Cynthia A Thomas, Elk Grove, 1999
Marcia A. Morrissey, Santa Monica, 1998
The Late Jerry J. Kenkel, 1997
Cristina C. Arguedas, Berkeley, 1996
Anne E. Fragasso, Monterey Park , 1995
James S. Thomson, Berkeley, 1994
Honorable James Larson, San Francisco, 1993
Honorable Phillip H. Pennypacker, San Jose, 1992
Michael Rothschild, Sacramento, 1991
Elisabeth Semel, Berkeley, 1990
Leslie H. Abramson, Arcadia, 1989
Thomas J. Nolan, Palo Alto, 1988
Richard G. Hirsch, Santa Monica, 1987
Alex Landon, San Diego, 1986
The Late Robert Berke, 1985
The Late Michael G. Millman, 1984
Gerald Uelmen, Santa Clara, 1983
John J. Cleary, San Diego, 1982
Dennis Roberts, Oakland, 1981
Charles M. Sevilla, San Diego, 1980
The Late Charles Garry, 1979
Barry Tarlow, Los Angeles, 1978
The Late Louis S. Katz, 1977
The Late George Porter, 1976
The Late Paul J. Fitzgerald, 1975
Ephraim Margolin, San Francisco, 1974
2019 7
Report Executive Director
Executive
Director Report
s the new Executive Director
of your association I would
like to take a moment to
introduce myself, and to
share my vision for CACJ.
I began my career in criminal defense at
Defender’s Inc. in San Diego in 1978.This
was the first year of Governor Jerry
Brown’s Determinate Sentencing Law,
which was to become the vehicle for
over-criminalization and over-incarcera-
tion along with the erosion of our civil
liberties and our national belief in justice
and redemption. It was also the year I
became a member of CACJ and attend-
8 2019
ed the Fall Seminar with such notable
speakers as Gerry Spence, Tony Serra
and I believe Al Menaster.
Over the decades I have met and been
inspired by many stellar members of the
defense bar, including Lou Katz, Ephraim
Margolin, Chuck Sevilla, Liz Semel, Alex
Landon, Bob Sanger, Chris Arguedas,
John Philipsborn, Ted Cassman, Jeff
Thoma, Mia Yamamoto and Steve Rease.
I do not think it is a coincidence that
every one of these terrific lawyers made
his or her own special contributions to
CACJ - or that many of them still do.
A decade ago I served a term on the
Board of Governors, and gained an
appreciation of the incredible accom-
plishments of this organization almost
entirely on the strength of volunteers.
These are successful attorneys who go
beyond the seven-day-a-week demands
of criminal defense practice to share
expertise, work for the common good,
and to make our society more just.
I see the Executive Director as the
person responsible for holding the
association together while serving as
the hub for all the committees doing
the work of CACJ. As a multi-year
co-chair of the Legislative Committee I

had an opportunity to see how commu-
nication is key, and how all of you step
up and pitch in when you know what is
needed to make a difference. I hope to
improve support for the Board, officers
and committee members, while adding
value to the membership of every CACJ
member.
This year under the leadership of your
President Jacquelyn Goodman and the
energetic and innovative members
appointed to head key committees
there is already progress being made.
The technology committee is preparing
a recommendation to update and
Report Executive Director
Adobe Stock © weyo
improve our website and internet tools. share the same goals, and I look forward
This will lead to better, smoother to meeting and serving you as we work
communication with members, and new toward a better, unbiased and more
value for cacj.org. There are plans for a humane criminal justice system.
brief bank, an improved listserve, better
support for members in their local
community and a full program of MCLE
webinars along with our annual seminar
series. And of course the reincarnation
of The Forum.
In my time as Executive Director I hope
to oversee a period of increased mem-
bership, more active participation, and
increased impact of CACJ in the courts Stephen A. Munkelt
and the legislature. I know many of you CACJ Executive Director
2019 9
Special Feature In Custodia Legis
By Gary McCurdy
A ttorneys who read all of
the relevant cases as soon
as they are handed down
and keep some sort of organized
system for retrieval when "just that very
question" crops up stand a better
chance of serving their clients well than
those few attorneys who operate by the
seats of their pants and rely on what
they'd like the law to be when asked for
authority for their positions. What is a
little harder, however, is systematic
follow-up to see whether the diligently
noted case has been granted review.
Who has THAT much time, right?
10 2019
So I've gathered for you cases that have
been granted review by the California
Supreme Court that are still awaiting
resolution on the application of Propo-
sition 47. It was enacted in 2014, and
most of the dust has settled in the past
five years. But there are still a few issues
lingering in the Supreme Court.
So What's It REALLY Worth?
In People v. Liu (2018) 21 Cal.App.5th
143 (review granted 6/13/2018,
S248130), the defendant took the
victims' credit cards and identifying
documents and made unauthorized
Prop. 47
On Review,
Literally
purchases, or wrongfully retained copies
of their documents. If the fair market
value of the access card did not exceed
$950, the crimes would have been
misdemeanor thefts rather than grand
theft. She was convicted of felonies,
affirmed on appeal, and the Supreme
Court granted review. "For the purpose
of determining whether a conviction for
theft of access card information in
violation of Penal Code section 484e,
subdivision (d), is eligible to be reduced
to a misdemeanor under Proposition 47
when the information has been used to
obtain property, is the value of the
access card information limited to the

Photo Adobe Stock © Corgarashu
fair market value of the information
itself on the black market or can the
value of the property obtained by the
use of the information be considered?
(See People v. Romanowski (2017) 2
Cal.5th 903, 914.)" In July 2019, the
Supreme Court advised counsel that it
would setting the matter for oral
argument soon. So soon we should
know.
Making Connections
Raul Guerrero was found in possession
of a check that had been stolen,
completed in the amount $400 and
Special Feature In Custodia Legis
payable to "Raul." It apparently had
been forged. (He had other suspicious
checks as well, but I don't want to get
lost in the details.) He also had a
California benefits identification card in
someone else's name. Among other
things, he was found guilty of forgery
(section 476) and identity theft
(section 530.5). He moved to have his
offenses reduced to misdemeanor
under Proposition 47. But section 473,
which specifies the punishment for
forgery, provides in part, "This subdivi-
sion [(b), which specifies that the crime
is a misdemeanor if the loss does not
exceed $950] shall not be applicable to
any person who is convicted both of
forgery and of identity theft, as defined
in Section 530.5." Since the defendant
stood convicted of both forgery and
identity theft, the trial court found that
Proposition 47 expressly stated that he
was not entitled to misdemeanor
disposition. The defendant argued that
the exclusion provision was ambiguous,
and that it pertained only to those
whose identity theft bore a relation-
ship to the forgery, which the acts
underlying his identity theft conviction
did not. The trial court and the Court
of Appeal disagreed.
The Supreme Court granted review:
Did the Court of Appeal properly apply
the "some connection or relationship"
test of People v. Gonzales (2018) 6
Cal.5th 44 in holding that defendant's
conviction for identity theft precluded
reducing his forgery conviction to a
misdemeanor under the provisions of
Proposition 47? (People v. Guerrero
(Dec. 5, 2018, H041900) [nonpub.
opn.], review granted 3/13/2019.)
A Theft Is A Theft,
Of Course, Of Course
Penal Code section 459.5 says, in part,
"Any act of shoplifting as defined in
subdivision (a) shall be charged as
shoplifting. No person who is charged
with shoplifting may also be charged
with burglary or theft of the same
property." In People v. Lopez (2018) 26
Cal. App.5th 382 (review granted
11/20/2018, S250829), the defendant
was charged with felony shoplifting
under section 490.5 and felony petty
theft with prior convictions. (He
qualified for felony treatment despite
Proposition 47 because he fell under
one of the exceptions based on prior
convictions.) He told police he did not
form the intent to steal until after he
entered the store. At the conclusion of
the preliminary examination, the
prosecution moved to amend the
complaint to include a count of petty
theft with prior convictions, and the
magistrate held the defendant to
answer on both shoplifting and petty
theft. The jury could not agree on the
shoplifting count, but found him guilty
of petty theft with priors. (Shoplifting
requires an intent to steal on entering
the business, and the defendant
testified that he had no such intent
until after he entered.) The Court of
Appeal affirmed, concluding that the
prosecutor was entitled to charge both
shoplifting and petty theft with a prior.
On granting review, the Supreme
Court initially characterized the issue
as, "(1) Can the prosecution charge
theft and shoplifting of the same prop-
erty, notwithstanding Penal Code
section 459.5, subdivision (b), which
provides that 'Any act of shoplifting as
defined in subdivision (a) shall be
charged as shoplifting. No person who
is charged with shoplifting may also be
charged with burglary or theft of the
same property'? (2) If not, was trial
counsel ineffective for failing to object
to the theft charge?" Seems straight-
forward enough, right?
Alas, barely a week later the Supreme
Court broadened its questions: "[As-
suming, for the sake of] argument, that
Penal Code section 459.5, subdivision
(b), prohibits the prosecution from
charging both shoplifting and theft of
the same property under any circum-
stances. (1) Did defendant forfeit the
argument under Penal Code section
459.5 by failing to object to the prose-
cution's charging both shoplifting and
theft? (2) If defendant had objected,
what should the trial court's ruling
have been? Might it have ordered the
prosecution to choose between a
shoplifting charge and a theft charge? If
so, and given the potential difficulty in
proving the intent required for shoplift-
ing, might the prosecution have chosen
to charge only petty theft with a prior?
In that event, would defendant have
been prejudiced by the failure to
object? (3) Was petty theft with a
prior a lesser included offense of shop-
lifting under the accusatory pleading
2019 11
Special Feature In Custodia Legis
test? If so, could the trial court have
instructed the jury on shoplifting as the
charged offense and on petty theft as a
lesser included offense? (See People v.
Reed (2006) 38 Cal.4th 1224,
1227-1231.) If not, and assuming defen-
dant had objected to charging both
crimes, could the prosecution have
moved to amend the charging docu-
ment to make the theft charge a lesser
included offense of shoplifting under the
accusatory pleading test? If that had
occurred, could the trial court have
instructed on shoplifting as the charged
offense and on petty theft as a lesser
included offense? In that event, would
defendant have been prejudiced by the
failure to object?"
Now THAT's a mouthful! It reminds me
of the questions asked at the conclusion
of every episode of the TV comedy
parody "Soap" a "few" years ago.
(Except the Court's questions are
serious, of course, with significant
consequences.) It's also sort of a
roadmap for strategy, both defense and
prosecution. And a reminder that issues
might be forfeited (with the potential
finding of ineffective assistance of coun-
sel) if there is no timely objection. (I do
fully recognize there is a legitimate
difference, and a certain tension,
between decisions deliberately made
during the course of trial court
proceedings and the Monday-morning
quarterbacking done at the post-convic-
tion level when appellate counsel,
comfortably sitting back with a favorite
beverage, has to overcome an other-
wise viable issue's forfeiture because of
the lack of objection. I hope we all
remember that the real client is the
defendant, and our own professional
pride may need to be set aside, if that's
what it takes to fully protect the client's
interests.)
Adam, WHO Are You?
Proposition 47 did set forth some
specific code sections as it described its
goal of once-a-felony-now-a-misde-
meanor recharacterization of theft and
certain drug offenses. But we know that
the Supreme Court has a more gestalt
approach than just looking at the speci-
fied sections. For example, though
Vehicle Code section 10851 is not one
of the listed sections, a violation of that
section committed by theft is contem-
12 2019
plated by Proposition 47. (People v.
Page (2017) 3 Cal.5th 1175.) In People
v. Jimenez (2018) 22 Cal.App.5th 1282
(review granted 7/25/2018, S249397),
the Supreme Court asks, "May a felony
conviction for the unauthorized use of
personal identifying information of
another (Pen. Code, § 530.5, subd. (a))
be reclassified as a misdemeanor under
Proposition 47 on the ground that the
offense amounted to Penal Code
section 459.5 shoplifting?" On two
different occasions, the defendant
entered a commercial check-cashing
business, and cashed a check from a
corporation, made payable to himself.
The checks were valued at around $630
and $600, respectively. The corporation
did not issue the checks in the defen-
dant's name. The trial court granted his
motion to treat the crimes as misde-
meanors, and the Court of Appeal
agreed. We'll see what the Supreme
Court thinks. (As of this writing, review
has been granted on that issue in at
least 11 other cases on a grant-and-hold
basis pending decision in this case.)
More Includium Sum'em,
Includium Sum'others,Vel Non
One of the Penal Code sections
expressly mentioned in Proposition 47
is section 496 (in pertinent part, "Every
person who buys or receives any prop-
erty that has been stolen or that has
been obtained in any manner constitut-
ing theft or extortion, knowing the
property to be so stolen or obtained, or
who conceals, sells, withholds, or aids in
concealing, selling, or withholding any
property from the owner, knowing the
property to be so stolen or obtained").
If the value does not exceed $950, then
it is to be treated as a misdemeanor ("if
such person has no prior convictions
for an offense specified in clause (iv) of
subparagraph (C) of paragraph (2) of
subdivision (e) of Section 667 or for an
offense requiring registration pursuant
to subdivision (c) of Section 290").
But, as I said earlier, the Supreme Court
has determined that one has to look at
the full intent of Proposition 47, and not
be bound by the specification of certain
sections. (See Page, supra.) So what
about Penal Code section 496d? (In
short, punishing "Every person who
buys or receives any motor vehicle [and
other vehicles and vessels] that has
been stolen or that has been obtained in
any manner constituting theft or extor-
tion, knowing the property to be stolen
or obtained, or who conceals, sells,
withholds, or aids in concealing, selling,
or withholding any motor vehicle [etc.]
from the owner, knowing the property
to be so stolen or obtained ....")
Well, that's up there as well, in People v.
Orozco (2018) 24 Cal.App.5th 667
(review granted 8/15/2018, S249495).
The question is, "Can a felony convic-
tion for receiving a stolen vehicle in
violation of Penal Code section 496d be
reclassified as a misdemeanor under
Proposition 47 in light of Penal Code
section 496, subdivision (a), which
provides that receiving other stolen
property is a misdemeanor when the
value of the property does not exceed
$950?" (Eight other cases have been
granted review on this issue and held
pending the outcome in Orozco.) Mr.
Orozco was pulled over and a routine
license check revealed that the car he
was driving was stolen. He pleaded
guilty to both Vehicle Code section
10851 (vehicle theft) and Penal Code
section 496d. The Court of Appeal
initially held that the Proposition 47 did
not apply to either section 10851 or
section 496d, but the Supreme Court
granted review and transferred the case
back to the Court of Appeal to recon-
sider in light of Page, supra. On its
second chance to decide the matter, the
Court of Appeal concluded that the
defendant should be allowed to petition
the trial court to reduce his conviction
under section 10851, but section 496d
was not subject to Proposition 47's
provisions. As noted, the Supreme
Court granted review (again).
Better A Joyrider
Than Borrower Be?
I have already mentioned People v. Page,
supra, 3 Cal.5th 1175, in which the
Supreme Court determined that Propo-
sition 47 applies to a violation of Vehicle
Code section 10851 where the act is
committed by taking the vehicle. In
pertinent part, section 10851 states,
"Any person who drives or takes a
vehicle not his or her own, without the
consent of the owner thereof, and with
intent either to permanently or tempo-
rarily deprive the owner thereof of his
or her title to or possession of the
vehicle, whether with or without intent
to steal the vehicle, or any person who
is a party or an accessory to or an
accomplice in the driving or unautho-
rized taking or stealing, is guilty of a
public offense ...." Merely DRIVING a
vehicle without the owner's consent,
however, is not the same as "taking,"
which means "theft" when the intent is
to steal. But what about the person
who takes the vehicle without the
intent to steal? We may find out in
People v. Bullard. (Dec. 12, 2016,
E065918) [nonpub. opn.], review grant-
ed 2/22/2017 (S239488).) The case was
originally granted review and held pend-
ing the outcome in Page, but now the
Supreme Court has asked the parties to
brief the following question: "Does
equal protection or the avoidance of
absurd consequences require that
misdemeanor sentencing under Penal
Code sections 490.2 and 1170.18
extend not only to those convicted of
violating Vehicle Code section 10851 by
theft, but also to those convicted for
taking a vehicle without the intent to
permanently deprive the owner of
possession?" (A question it left open
but mentioned in footnote 5 in Page.)
In Bullard, the defendant was staying at
his girlfriend's residence in 2012. One
morning, he took her car keys from her
purse without her permission and took
her car (worth about $500) while she
was not home. Later that night, hours
after she had reported the vehicle
stolen, defendant agreed to meet her
and return her vehicle. Police arrested
him when he showed up to drop off her
car at her place of employment. After
Proposition 47 took effect, Bullard
petitioned to have his conviction
reduced to a misdemeanor. The trial
court found that Proposition 47 did not
apply, and the Court of Appeal agreed.
And the Supreme Court granted review.
Those of us who find the darnedest
little things interesting find it interesting
that the Supreme Court granted review
in Bullard and held it pending its
decision in Page, in which it specifically
said that it was not dealing with takings
without the intent permanently to
deprive the owner of possession, all the
while having that very question posed
to be answered in Bullard, an unpub-
lished opinion. If one wants to be
optimistic, one could suppose that the
Supreme Court could have left Page to
stand all by itself, to signal that the
ONLY provisions of section 10851 that
fell under Proposition 47 were
violations that constituted theft (taking
with intent to deprive permanently).
But presumably knowing that Bullard
was in the wings, and raising that very
"We're not dealing with ..." comment in
a footnote in Page--and Bullard not even
being a published decision--it might
portend a ruling favorable to the
defense. Of course, the pessimists will
conclude simply that the Page comment
really meant "don't jump the gun,
folks--just because we're including part
of 10851 under Prop 47, don't assume
we're stretching it beyond that." And
that it seized on Bullard as the only case
with the unique scenario it needed to
shut the door on that claim as well.
What was that other take on
optimism/pessimism? The issue isn't
whether a glass is half empty or half full,
it's that there isn't enough wine?
Another point to consider is that the
Supreme Court does not seem to be
looking into whether Proposition 47
actually applies to the "taking without
intent to steal" aspect of section 10851,
but whether it would be a problem if
the true thief were treated as a misde-
meanant, while a joyrider merits felony
disposition. We'll see.
That's A Wrap!
(And now I assume all of you are going
to sign up to be notified as each
decision is reached. You know, "the rest
of the story.")
Gary Evan McCurdy is a certified
criminal law specialist, is Assistant
Director of Central California Appellate
Program.
2019 13
Committee Death Penalty
Execution Off, Execution On
Report from the Death Penalty Committee
By Nancy Haydt, Esq., Death Penalty Committee Chair
On March 12, 2019 Governor Gavin
Newsom suspended execution of
California death row inmates. Under his
order, the death chamber in San Quen-
tin Prison was dismantled, and the lethal
injection protocol, long the subject of
litigation, has been repealed.
“WHEREAS, California's death penalty
system is unfair, unjust, wasteful, protract-
ed and does not make our state safer. . .
death sentences are unevenly and unfairly
applied to people of color, people with
mental disabilities, and people who cannot
14 2019
afford costly legal representation. . .
.innocent people have been sentenced to
death . . . since 1978, California has spent
$5 billion on a death penalty system that
has executed 13 people . . . .I will not
oversee execution of any person while
Governor.”
District Attorneys tried to outdo each
other in expressing rage at the Gover-
nor's "ignoring the will of the voters" [1]
and "defying the voters".[2] According
to one District Attorney, "Governor
Newsom took a knife and stabbed all
Photo Adobe Stock © fergregory
the victims and all the victims' families in
the heart".[3]
While complaining about the Moratori-
um, district attorneys continued
filingcapital murder charges, convicting
defendants of capital murder, getting
death sentences, and sending cases on
for decades of appeals and habeas
corpus proceedings. Meanwhile, in May,
the Department of Justice (DOJ) decid-
ed that the Food and Drug Administra-
tion (FDA) has no authority to regulate
"articles intended for use in capital >

“
California's death penalty
system is unfair, unjust,
wasteful, protracted and does
not make our state safer. . .
punishment," including the drugs used in
lethal injections." [4] Their twisted logic
was:
[T]he FDA cannot regulate any article
of capital punishment because the
intended use, capital punishment, is
not medical and therefore falls beyond
the FDA's scope. The FDA is only free
to regulate the same drugs when used
in medical care.[5]
The FDA does not regulate articles of
execution like electric chairs, or gas
chambers, or bullets used by firing
squads. So, why should the Food and
Drug Administration regulate drugs?
The move foreshadowed the DOJ
announcement on July 25, 2019, that
the federal government would resume
executions of federal death row
prisoners. The DOJ announced execu-
tion dates in December 2019 and
January 2020 for 5 condemned
inmates.
In the U.S. Supreme Court, in Flowers
v. Mississippi, 139 S.Ct. 2228 (June 21,
2019), the Court overturned the
conviction and death sentence of Mr.
Flowers who had been tried six times
for quadruple murder. Four of the five
prior trials were overturned for pros-
ecutor misconduct and Batson viola-
tions. A fifth trial resulted in a hung
jury. Citing Batson v. Kentucky, 476
U.S. 79 (1985), the Court reversed
finding a pattern of discrimination in
jury selection. Citing the number of
strikes, racially disparate voir dire
questioning, comparative juror analysis,
and history across multiple trials the
Court held "in the six trials combined,
the State employed its peremptory
challenges to strike 41 of the 42 black
prospective jurors that it could have
struck." The prosecutor has announced
Committee Death Penalty
”
his intention to try the case for the
seventh time.
In California, the Supreme Court
unanimously overturned the death
sentence of Jeffrey Scott Young in San
Diego County in 2006, ruling that the
prosecution acted improperly by
presenting evidence and argument that
Young should be sentenced to death
because he was a white supremacist.
Trial attorneys in two California
capital cases are challenging jury selec-
tion during the Moratorium in light of
Caldwell v. Mississippi 472 U.S. 320
(1984). In the case of People v.
Cleamon Johnson, defense attorney
Robert Sanger argues that because of
the Moratorium, jurors will "be unable
to assume a death sentence will result
in an execution and be unable to
comprehend fully the gravity of their
decision." See, California Supreme
Court to Consider Petition to Halt
Capital Prosecutions.
Proposition 66 rules for capital
post-conviction proceedings took
effect on April 25. The full text of the
rules is at http://extranet.hcrc.ca.gov-
/topics/documents/Prop66-Final-
Rules.pdf. While the California
Supreme Court has transferred
dozens of capital habeas corpus cases
to superior courts per Proposition 66,
there are still no funds allocated to
litigate these cases.
Finally, the New Hampshire legislature
abolished the death penalty. The New
Mexico Supreme Court vacated the
death sentences of the last two
inmates on the state's death row.
My sincere thanks goes to all the
defenders who continue to fight the
good fight.
NANCY HAYDT
In 1995, as a law
student intern at
Ventura County
Public Defender’s
Office, Nancy
was assigned to
work full time on
a death-penalty case. After a hung jury
and later, a second-degree murder
conviction, “I put my technology career
behind me, and never looked back,” she
says. After passing the bar exam, Haydt
continued working at the Ventura Public
Defenders until 2001, when she went into
private practice doing criminal defense,
as counsel on capital trial cases, and as a
research attorney on capital habeas
corpus appeals. She has been a member
of the California capital defense commu-
nity for a decade. She served on the
Board of Governors for California
Attorneys for Criminal Justice, and is the
chair of the CACJ Death Penalty Commit-
tee. She was a Deat Penalty Focus board
member prior to her appointment as
Executive Director. She is a Steering
Committee member of the American Bar
Association’s Death Penalty Representa-
tion Project.
Citations:
[1] Los Angeles Times, Marcy 21, 2019.
Capitol Journal: Gov. Gavin Newsom is
developing a bad habit: ignoring the
will of voters.
[2] San Luis Obispo Tribune, March 19,
2019. Democrats Are Defying the Will
of the Voters
[3] Fox News, April 11, 2019. Family
Members of Murder Victims Slam
California Gov. Newsom's Moratorium
[4] DOJ slip opn. Whether the Food
and Drug Administration Has Jurisdic-
tion over Articles Intended for Use in
Lawful Executions. May 3, 2019,
available at https://www.justice.gov/ol-
c/opinion/file/1162686/download.
[5] Ibid.
2019 15
Department Technology
TECH COLUMN
L
ongtime readers of this column,
or any reader of this column,
know that I’m, ah, let’s say
frugal. Because “cheap” sounds so, ah,
cheap. I’m always looking for a bargain,
and the best bargain is, of course, free.
If I can find something free that does
the job, I’m all over it.
In this day and age, many of us are now
using slideshows. Most folks use
PowerPoint. But there are alterna-
tives. If you’ve seen me give a talk in
16 2019
1713
the past few years, you’ve almost
certainly seen me using Corel Presen-
tations. There’s a new kid on the
slideshow block, Prezi. But you might
be surprised to learn that there’s a
free slideshow program. And it’s
darned good. It is, you won’t be
surprised, from Google. It’s called
Google Slides. Catchy name, don’t you
think?
Some of my columns are specific to
Android phones and the Windows
Photo Shutterstock © SWKStock
BY ALBERT MENASTER
operating system. For once, everyone
is on board; everything I’m describing
works on the Apple stuff as well.
In this column, I’ll review Google
Slides in some detail. I’ll walk you
through creating your own slideshow.
Come on, it’ll be fun.

GOOGLE SLIDES
So here’s the best thing about Google
Slides. It’s free. OK, here’s the second
best thing. You have it. Or at least you
have access to it right now. Because, of
course, you’re using Google.
Where is Google Slides? Silly goose. Go
to Google. Type in “google slides.” The
address is www.google.com/slides.
Google Slides is a slideshow program. It
lives in the cloud. This is both its
strength and its weakness. You don’t
have to carry your Google Slides
slideshow around on a laptop or even a
tablet. It’s always there. In the cloud.
This could be its best feature. You can
log in anywhere and get your slideshow
and run it. All you need is Internet.
Oops, this is its biggest weakness: you
need Internet. So if you’re going some-
where and you want to run your
slideshow at your destination, make
sure you’ll have Internet access.There is
a way to download your slideshow into
your laptop or notebook or tablet; I’ll
cover that later.
Before I get into the nuts and bolts of
Google Slides, let me address a key
point. How easy is this to use? I use
PowerPoint but it’s not very intuitive
and I often struggle to figure out how
to do something that should be pretty
obvious. All too often I end up using
Google to search for how to do some-
thing in PowerPoint, because I can’t find
it just by clicking around.
In contrast, Google Slides is incredibly
easy and intuitive to use. The very first
time I used it, I created a three-slide
slideshow. I put in a title, a subtitle, and
Department Technology
inserted two pictures. This took literally five minutes. I had the most trouble chang-
ing the color of the text and centering the text. And that’s because I’m clueless.
Which you won’t be if you read this entire piece.
A key reason why Google Slides is so easy is that almost everything you’re going to
want to do is on screen. All you have to do is muck around, and you’ll figure out
everything. For example, hover your mouse over the various icons, and each will tell
you what it does: text color, font, bold, etc.
If you really hate learning this way, you can find many online tutorials. The first two
of these consist of screen shots, the last two are videos:
https://gsuite.google.com/learning center/products/slides/get started/
https://business.tutsplus.com/categories/google slides
https://www.youtube.com/watch?v=CAk93Jsc2pM
https://www.youtube.com/watch?v=kYA6GLAzz9A
The backgrounds in Google Slides are called “themes,” for no good reason. Google
Slides comes with two dozen themes. And of course you can create your own. You
want a ton more, for free? Try SlidesCarnival, at
http://www.slidescarnival.com/laertes free presentation template/2038
or
https://slidemodel.com/google slides/
Of course, you can just put “Google Slides themes” into Google, and you’ll get
plenty of them.
Lots of folks have added stuff onto Google Slides for various reasons. So far, these
are mostly collections of pictures or icons. These are called “add-ons;” try this site
for some of these:
https://9to5google.com/2017/09/27/google slides update add ons keep/
And of course there’s an App, both for Apple and Android. More later on the App.
What can you do in Google Slides? Almost everything. There’s one major limitation,
about which more later. But you can create a slideshow. Insert a title. Insert text.
Create bullet points and numbered lists. Insert pictures. I’m having trouble thinking
of anything you can’t do. And, again, this is both free and very simple to do.
2019 17
 Department Technology

Photo Adobe Stock © j-mel

Heck, let’s actually

How simple? create Heck, the text color box
let’s actually in the the
create rowtext of icons
color box box inwill the rowpop of up.icons
Navigate
box inwillyour pop up. Navigate in your
ght now. Really. I swear right
a slideshow in thenow. upper
Really.section
I swear of your screen.
in the upper computer
It’ssection of yourtoscreen.place It’s the computer
chart some- to place the chart some-
utes you’ll have
that ainterrific
ten minutes an you’ll
underlinedhave aA.terrific
If you an can’t see it, A.
underlined whereIf you where can’tyousee canit,findwhere
it; I like
wheremy you can find it; I like my
you’ve been slideshow. hover over
creatingIf you’ve been eachcreating
icon withhover over eachdesktop.
your mouse, icon withClick yourto save it desktop.
mouse, there. Make Click to save it there. Make
u’ll have a complete
slideshows, show you’lland
have the name of each
a complete show boxand willtheappeal.
name of sureeachyoubox keepwilltrack of thesure
appeal. name youof keep
the track of the name of the
s. If you’veinnever tried One
five minutes. will say
If you’ve neverTexttried Color.One That’swillyour chartColor.
say Text and whereThat’s it’s going.chart
your I spend andway where it’s going. I spend way
any slideshow program,or
PowerPoint goal.
I any slideshow program, I goal. too much time trying totoo findmuchstuff time
I trying to find stuff I
you’ll succeed
promise in tenthat you’ll succeed in ten already have. already have.
e on, try it. It’s the future,
minutes. Come on, Click try on Text
it. It’s the Color
future, and Clickyouoncan Text Color and you can
baby. choose any color fromchoose the color any colorGo back fromto the Google colorSlides.Go Clickback on to Google Slides. Click on
palette. If you select thepalette. new color If you Images.
select It’s the annew iconcolorin the middle
Images.ofIt’sthe an icon in the middle of the
r desktop computer
Drag out or your before
desktop typing, all yourortextbefore
computer your allicon
will betyping, yourrow, text which
will beis supposed
your icon to look like is supposed to look like
row, which
book or tablet.
laptopGo or to new color.
netbook If you’re
or tablet. Go following
to newmy direc-
color. mountains.
If you’re followingAgain, my direc- hover mountains.
with yourAgain, hover with your
Google Slides.
Google. The Go tions, you
onlyto Google already
Slides. The only have text
tions,inyou your mouse
already haveif you text can’t
in your find this,
mouse untilif you
you can’t find this, until you
ere is that you must havehere
requirement slide. To change
is that you must thehave color,slide.
highlight the find
To change Images.
the color, Click the
highlight on Images.
find Images. Pick Click on Images. Pick
ount. Whicha you Google if text,Which
do account. then go you to the dotext if color
text, box
thenand go to Upload
the textfrom colorComputer.
box and You’ll Uploadgetfrom an Computer. You’ll get an
mail. Googleyou’re
will ask yougmail.
using chooseGoogle yourwillnew askcolor.
you That choiceyour
choose willnew interactive
color. Thatbox, choice from willwhich you canbox, from which you can
interactive
ss you’re already
to log loggedin (unlessinstantly change logged
you’re already the colorinstantly
of the text changenavigate
the colortoof that the text chart.navigate
Remember to that chart. Remember
e Slides home in).screen
The Google has you Slides home screen has you selected. where you left it. Click onwhere
selected. it and youselect left it. Click on it and select
on it. But let’s
somenot themes
use an on it. But let’s not use an Open. Voila, it’s in your slide now.Voila,
Open. It willit’s in your slide now. It will
, let’s createexisting
a slideshow Next,create
theme, let’s add aa slideshow
new slide. There’s Next, add a plus a newhaveslide.
a box around
There’s it withhave
a plus handles,
a boxsoaround it with handles, so
ick Blank. from scratch. Pick sign way to the left of the sign
Blank. row way to the you
of icons left of canthe size
rowit of
larger
iconsor smaller.
you canWe’re size it larger or smaller. We’re
in the upper section of the screen,
in the upper inserting
or section of thea chart
screen,here, orbutinserting
you can asee chart here, but you can see
, there a tonOnofthe screen, you
themes, there cana hit
tonControl-M
of themes,for ayou new can slide. If that you
hit Control-M forcan use slide.
a new this to If insert
that youpictures
can use this to insert pictures
mplates to choose
which are from. you click
templates on the drop
to choose from.down you arrow
click on to theasdrop
well. down arrow to as well.
nd pick one Scroll
you like. down Doandthe pick right
oneofyou the like.
plusDo sign, you
the can
rightget of athe plus sign, you can get a
ple Light or NOT
Simplepick Dark,SimpleslewLight of oradditional
Simple Dark, layout choices. Let’s Now
slew of additional layoutlet’s choices.
add some Let’stext.Now Newlet’s Slide:
add some text. New Slide:
k on white andwhich white
are onblack just do Control-M.
on white and white on just do Control-M. Control-M. There’s a box to add a Title,
Control-M. There’s a box to add a Title,
These are bad formats.
black themes. These are bad formats. and another to Add Text.and Select Add to Add Text. Select Add
another
Now let’s put in a chart. Go Now let’s put inText
to Google by clicking
a chart. Go to intoGoogle the box.
TextLet’s type into the box. Let’s type
by clicking
k your theme, When youryou pick Images.
first your theme, Type in “Beyond
your first aImages.
ReasonableType in in some language
“Beyond a Reasonable from CALCRIM
in some language on from CALCRIM on
with boxesslideto Add willTitle Doubt.”
load, with boxes Incidentally,
to Add Title if youDoubt.”
just type in reasonable
Incidentally, if you just doubt:type“Proof beyond adoubt: “Proof beyond a
in reasonable
e. Click in Add
andTitle.
Add TypeSubtitle.“reasonable
Click in Add Title. doubt,” Typeyou“reasonable
get album doubt,” reasonable you doubt
get album is proofreasonable
that leavesdoubt is proof that leaves
easonable Doubt”
in “Beyond (with- covers ofDoubt”
a Reasonable Jay Z’s 1996 (with-album called,
covers Jay Z’syou
of yep, 1996 with albuman abiding
called, yep,conviction
you withthat an theabiding conviction that the
ion marks). out the quotation “Reasonable
marks). Doubt.” When you type inDoubt.”
“Reasonable chargeWhen is true.”
you type (Again, withoutisthe
in charge true.” (Again, without the
“Beyond a Reasonable Doubt” “Beyond you aget quotation
Reasonable marks).
Doubt” youDone.
get quotation marks). Done.
come in as white
The text if your a bunch
will come in asofwhite
stuff, but you’ll get
if your a bunch
a bunch of but you’ll get a bunch of
of stuff,
and dark if your
theme theme
is dark, charts
is and dark ifillustrating
your themeproof is chartsbeyond a Finally,
illustrating let’s add
proof text and
beyond a made
Finally,a let’s
bulletadd text and made a bullet
Slides tries to pick
white. Google a reasonable
Slides tries doubt. to pick Pick a one, any one.doubt.
reasonable point Pick slide.
one,Control-M
any one. for pointnewslide.
slide.Control-M for new slide.
nt with the color consistentWhen
color scheme with the youcolorclickscheme
on it, theWhen picture you willclickSelect
on it,Add the Text.
picture Let’s
will type this,Add
Select hardText. Let’s type this, hard
You might beoffine thewiththeme.it. Youexpand
might be andfineyou’ll
with it. get boxes
expandwhich and you’llreturns getafter eachwhich
boxes line: returns after each line:
include Visit. Click on that. You’llVisit.
include No scientific
get Click on that.evidence
You’ll get No scientific evidence
are in the text
But whenbox you you areyour in chart
the text full box
screen. youNow your right click
chart No eyewitness
full screen. Now right click No eyewitness
his color bycan clicking
override on thison color
the chart and select
by clicking onSave onImage As. AandNo
the chart video
select Save Image As. A No video

18 2019

Now highlight all of this text. The
bulleted list icon might be on your
screen in the row of icons, or you might
have to click on More (far right) to
generate various list options, one of
which will be bulleted list. Click on that.
Quick shortcut: you can generate a
bullet-point list just by highlighting your
text and hitting Control-shift B.
You’ll probably want to slide your bullet
points in one at a time. You want that?
Easy, peasy. Double click on the text
box. Highlight all your text. Click on
View, Animations. This is not an icon, it's
a drop down list above the icons. When
you click, you'll get a right frame. You
can pick how you want your slides to
transition in. For now we're going to
pick Add Animation. The default is Fade
In, which is what we want. Click in the
box that says By paragraph. Then click
on Play, and you get to see how this
looks (by hitting Enter to see each item
on the list).
Our final step is to name your presen-
tation. Look in the upper left hand
corner, it’ll say Untitled Presentation.
Click into that text. Almost surely,
Google will insert the first thing you
wrote on your first slide, which was
your title, Beyond a Reasonable Doubt.
If that works for you, you’re done. But
you can always insert a different title by
just typing it in.
Believe it or not, you’re done. Let’s run
the slideshow. Click on Present, in the
upper right corner, then on the drop
down arrow, and select Present from
Beginning. Or hit Control-Shift-F5.
You get a screen with your first slide
filling your screen. In the lower left
corner there are left and right arrows.
Click the right arrow and you’ll advance
to your next slide. Repeat to go
through your show. In between the left
and right arrows there is a solid
right-facing arrow. If you click that, the
show will run without you having to
click.
Remember earlier when I mentioned
that you need Internet to run your
Google Slides? Well, you can save your
show onto your desktop or laptop or
tablet. Click File, Download As, and
you’ll get a slew of options. The most
Department Technology
obvious one is PowerPoint. I have
successfully converted Google Slides
into PowerPoint. I recommend this just
so you have a backup if in fact Internet
decides not to work when you need to
run this.
You can try to convert a PowerPoint
into Google Slides, but this is trickier.
You have to have a Google Drive
account and upload the PowerPoint
slideshow into Google Drive. Open
Google Drive and find your PowerPoint
file, double click on it, and choose Open
with Google Slides. Google Slides will
do a conversion. When I tried this, it
worked pretty well, retaining my
animated gifs and my bullet points and
slide transitions, but losing my sound
effects. I should note that Google Slides
doesn’t have a way to insert sound clips,
such as mp3 files. There is a work-
around for this, but it isn’t easy. So far,
that’s about the only limitation I’ve
found in Google Slides.
One last thing. Of course, Google has
phone apps for Google Slides, for both
Android and Apple. Do a search for
Google Slides in Google Play or Apple’s
App Store. You can actually work on
your slideshow, rearrange slides, insert
text, etc., on your phone.Which I would
hate, it’s way too small a space to work
in. But in a crisis you could do this. You
can also use the phone as a remote to
run your slides. But doing so is
advanced way beyond this article.
My point, and I do have one, is that
Google Slides is really easy and really
powerful. If you’ve never tried doing a
slideshow, this is your entry-level
program. You’ll dazzle your friends and
your juries. If you’re a pro at Power-
Point and slideshows, you should try
this anyway, because it’s easy and
powerful and it’s free.
ALBERT
MENASTER
has served as a Deputy Public
Defender in Los Angeles
County since 1973, and was
awarded with the California
Attorneys for Criminal Justice
Significant Contributions to
Criminal Justice Lifetime
Achievement Award in 2014
and was chosen Defense
Attorney of the year by the LA
County Bar Association in
2007. Al writes books, articles
and lectures frequently on a
wide range of defense topics,
including computer technolo-
gy for defense attorneys Al has
argued before the United
States Supreme Court and
repeat- edly before the
California Supreme Court. He
has written and spoken at
many programs for CACJ over
the years, and has authored
amicus briefs with a remark-
able success rate. Al is a
managing editor of CACJ’s
Forum magazine, for which he
writes a tech. column and
book reviews, as well as
substantive legal articles.
2019 19
Special Feature California Bail Reform

CALIFORNIA BAIL REFORM

After Humphrey, SB 10 and the 2020 Ballot Bail Referendum
By Robert Sanger 

Photo Adobe Stock © ivan kmit

Introduction
The “new” bail law in California, SB 10, was passed by the Legislature after considerable compromise and amendment and was
signed into law by Governor Brown on August 28, 2018. It was to take effect until October 1, 2019.2 The original law, SB 10, was
heralded as a bold attempt to end monetary bail and it would, in fact, end the infamous cash bail and the bail bond system. Howev-
er, by the time the Bill was amended as enacted, it not only displaced cash and bail bonds but it was in need of amendment to avoid
unreasonable preventive detention. As this is written, legislative amendments to SB 10 are in the works.

Whatever the problems of SB 10, the bail industry saw the very existence of their business threatened by SB 10. They qualified a
veto referendum to be placed on the November 3, 2020 ballot which would re-instate monetary bail. It is entitled, “California
Replace Cash Bail with Risk Assessments Referendum (2020).”3 The supporters (seeking a “no” vote which would repeal SB 10)
is funded exclusively by the bail bond industry which put over $3,000,000 into the referendum thus far.4 The Secretary of State
certified that a sufficient number of signatures were deemed valid and, therefore, SB 10 will not take effect until the matter is
determined by the voters.

To the extent that SB 10 can survive repeal by popular vote, amendments are in order. CACJ opposed SB 10 as it was finally
amended due to implementation issues, particularly surrounding the use of preventive detention and un-validated risk assessment
tools. Although there are potential problems with SB 10, it is a dramatic shift from cash based bail which is devastating to the poor
and unduly favors those with wealth. Cash bail is an anachronism and to the extent that SB 10 can be amended to deal with imple-
mentation of a fair system of release on conditions and amended to rely less on detention, the progress made by SB 10 is worth
preserving.

This article will look at some of the problems with the compromise in the language of SB 10 as enacted and suggest that the
legislature do what it can to resolve those problems. Part I will look at the existing system that has been criticized by Justice Kline
in the Humphrey case5 and which would be replaced by SB 10; Part II will look in more detail at how the SB 10 intended to imple-
ment the replacement of cash bail by creating a release or detention program; and Part III will examine the “risk assessment tools”
and the concept of predicting future dangerousness including the question of whether we should be committed to such an enter-
prise based on predictive ability of such tools. The article will conclude with a modest suggestion for the three types of amend-
ments -- particularly the third -- that might be effective in improving SB 10 before it takes effect.

20 2019 CITATIONS SEE PAGE 41- 42


The Need to Revise the New Bail Law – Part I
A. Bail Before SB 10 Takes Effect
It is not hard to criticize the idea of cash
bail and the resultant wealth based bail
bonds industry.6 The In re Humphrey7
and In re White8 cases were granted
review by the California Supreme Court
in May of 2018 prior to the enactment
of SB 10 in August of that year. Justice
Anthony Kline’s opinion in Humphrey
received a lot of attention and hastened
the introduction of SB 10 as remedial
legislation. Somewhat uncomfortably,
the California Supreme Court’s review
of his opinion in Humphrey and the
opinion in White will seem to require
the analysis of both the pre and post SB
10 bail systems.
By way of a quick review of California
law and procedure -- until a decision by
the Court in Humphrey and White or the
effective date of SB 10 if it survives the
referendum -- a dollar amount of bail is
initially established by a bail schedule9 or
by an ex parte order of a judge on an
arrest warrant.10 Once a detainee is
arrested, unless a release on own recog-
nizance is granted, the detainee can post
cash in the bail amount, pay for a bail
bond or go through a complicated
process of posting real property with
equity equal to twice the bail amount.11
If the detainee makes all court appear-
ances, at the end of the case, the bail is
exonerated. At that point, if cash was
posted, the county (after a usually
unnecessarily long processing period)
returns the cash to the person who
posted it. If a bail bond was posted, the
bond is exonerated and the detainee
and whoever guaranteed the bond are
relieved of their obligations under the
bail contract but the premium they paid
remains with the bond agent. If real
property was posted, title to the prop-
erty is re-conveyed to the property
owner.12
All of these bail options depend on the
detainee having money or property or
family or friends with money or proper-
ty. Bail is the ultimate deference to
wealth, property and the privatization of
risk. That is obviously true with regard
to the cash or property posting options
but also true with regard to bail bonds.13
The bail bonds agent makes an assess-
ment of whether a detainee and/or their
guarantor will be able to pay the full bail
CITATIONS SEE PAGE 41- 42
Special Feature California Bail Reform
amount if the detainee fails to appear in their request for own recognizance
court. The agents require collateral or, release can be considered by the court.
at least, some solid evidence that the Detainees who have access to money or
guarantor will pay the bond amount if property often will either post cash or a
there is a forfeiture. Generally the bond bail bond rather than wait for an OR
agent will look to equity in real property determination from the OR Unit or
and will require the property owner to wait to go to court. Those who do wait
sign a deed of trust on the property. for an OR determination find that the
criteria for OR release include “ties to
It is significant, though not well known, the community” which often is satisfied
that the insurance company that under- by owning real property, having a job
writes the bond receives only a small that they can return to or having friends
portion of the bail bond premium. Most and family of substance. The result of
of the premium goes to the bail agent. this process is that people with money
However, the underwriter also has very and property or friends and relatives
little risk except in extremely high dollar with money or property are released on
bonds. The bail agent indemnifies the OR, cash bail, bail bond or by posting
underwriter from ever having to pay on real property. The poor remain in jail
a forfeited bond. In turn, that bail agent and are herded to the court in chains
is required to maintain a private emer- and jail jumpsuits to be spit out into a
gency fund to pay for the forfeiture out “cage” or “fishbowl” for their day in
of the agent’s own money. And, even court.16
that is unlikely to happen because, if a
detainee fails to appear, the bond agent The last thing to note about the present
has 180 days to go out and find the system is the standard for judicial inter-
detainee and turn him or her into the vention after a person is detained. The
sheriff. Hence, the agent employs court can hold a bail hearing and
bounty hunters when necessary to according to a strict reading of the law,
round up someone who has failed to the court should look only to the
appear. likelihood that the detainee will appear
in court in the future.17 The nature of
There is an alternative to bail under the the offense can be considered but not
present system, release on one’s own whether or not the offense was
recognizance, (“OR”). Release on OR committed.18 The nature of the offense
can occur at the jail through an OR is considered only as it bears on the
court services program whereby court likelihood of appearance making the
employees or other officials interview questionable assumption that a person
detainees while they are in the jail to is more likely to show up for a minor
determine if they can be released on a offense than for a major one due to the
promise to appear. That promise usually potential consequences.
includes conditions including checking in
at regular intervals with the OR Unit. Safety of the public was not properly a
Persons arrested on warrants are concern of the court under Article I
generally not considered by the OR Section 12(b) in setting bail even though
Unit nor are several classes of allega- there was language on the books.19 The
tions, including domestic violence. Of claim that public safety is the primary
course, cases punishable by death and consideration in setting bail stems from
where the detainee’s “guilt is evident or a flawed understanding of the effect of
the presumption thereof great”14 are both Proposition 4 and Proposition 8
ineligible for bail or OR but most other passed in the 1982 election. While Proposition
detainees are eligible for consider- 8, purported to enact law stating that “[p]ublic
ation.15 safety shall be the primary consider-
ation [in setting bail],” that portion of
Nevertheless, even with the OR Proposition 8 never went into effect
program, detainees may remain in jail for because Proposition 4 received more
a night or more before the OR Unit can votes.20 Nevertheless, judges routinely
make a determination or they may have say that public safety is a concern and,
to stay in jail for several days before sometimes their main concern, in
2019 21
Special Feature California Bail Reform
setting bail or considering an OR
release which, if applicable under Article
I Section 12(b) would be relevant only
to a limited number of cases. 21
While we have argued this for years, the
Supreme Court in Humphrey and White
acknowledges that the question of
public safety is unresolved. The Court
asked for briefing on the following: “In
setting the amount of monetary bail,
may a trial court consider public and
victim safety? Must it do so? [and]
Under what circumstances does the
California Constitution permit bail to be
denied in noncapital cases? Included is
the question of what constitutional
provision governs the denial of bail in
noncapital cases (CAL CONST art I,
§12(b) and (c), or CAL CONST art I,
§28(f)(3)) or, in the alternative, whether
these provisions may be reconciled.”22
So, these issues are not resolved under
current law regarding the setting of
money bail and the use of high bail to
effectively detain a person on public
safety grounds.
B. Senate Bill 10: Pretrial
Release or Detention
In 2018, following the Humphrey and
White decisions in the Courts of Appeal,
the legislature saw the handwriting on
the wall as to the need to revise or
eliminate cash bail. Their efforts culmi-
nated in the enactment of Senate Bill 10
in August 2018, which did away with
monetary bail effective October 1, 2019.
In concept, the first iterations presented
a progressive and workable solution but,
as the legislative session wore on, the
Bill, now law, metamorphosed into a
conglomeration of competing consider-
ations.23
Spoiler alert: it is not going to work. There
is an arguably excessive reliance in SB 10
on preventive detention. It also involves
an increase in procedures that will delay
or prevent pretrial release in large
categories of cases and creates a
bureaucratic mechanism that may be
unwieldy. There is also a large amount
of discretion built into the various levels
of determining pretrial detention or
release; determinations that will play out
in different ways in different counties.
The present configuration of SB 10, if it
goes into effect as presently enacted,
will have general consequences, some
22 2019
good and others not so good: 1) Fewer
poor people should be in custody simply
because they are poor (good); 2) More
wealthy people, their children, relatives
and friends are likely to be in custody at
least through pre-arraignment or
arraignment hearings who would have
bailed out (maybe economically fair but
maybe not good); 3) More wealthy
people and their benefactors will just sit
in jail pending trial (same); and 4) Who
gets out and who stays in will depend on
arbitrary categories of alleged crimes
and metric results of a “risk assessment
tool” which, depending on how admin-
istered and how interpreted, will
arbitrarily result in the detention of
classifications of people based on
predictions that 8% to 10% of them (or
maybe %5 to 15% depending on the
instrument) will reoffend within six
months (not good).
There will be other unintended conse-
quences. As arbitrary as the present
system of cash bail is, people with jobs
are currently more likely to get out of
custody. Under the new system, given
the priority for detention of classes of
allegations and risk assessment tool
determinations, more detainees with
jobs may remain in custody for a few
days or even during the entire pre-trial
period. This will mean, for those people,
the loss of jobs and the domino effect
thereafter including, loss of homes and
automobiles, inability to pay obligations
within the economic community, arrears
in child support and the successive
effects on employers, family and others.
It will also mean that detainees who
might have stayed employed and been
able to afford counsel will now have to
rely on the Public Defender or appoint-
ed counsel.
Furthermore, the cost of housing
pre-trial detainees will have to be borne
by the taxpayers. Even prolonging
release a day or two will be expensive
but it is likely that the jail population will
dramatically increase. Currently,
between 70% and 80% of the jail popula-
tion is comprised of pre-trial detainees.
Many are in custody because they are
poor. However, the potential is that the
reduction in the population of those
who simply too poor to make bail will
be superseded in the SB 10 system by
the increase in the population of detain-
ees who have been charged with
disqualifying offenses or have “high” risk
assessments and must wait for judicial
determinations -- and, even then, may
not be released. That cost of housing is
exacerbated by the cost of transporta-
tion to and from court and of the hous-
ing, movement and maintenance of
detainees at the courthouse.
The economic effect of the SB 10 may
be significant as will be the impact on
individual lives. Some people will benefit
by non-monetary release but others will
suffer the results of preventive deten-
tion. It is possible that SB 10 will be
subject to revision before it takes effect.
Whether the revisions, if they occur, will
be successful in dealing with these antic-
ipated problems will have to be seen.
The Need to Revise the New
Bail Law – Part II
A.The New Bail Mechanisms
As with many pieces of legislation, the
bill that is eventually signed into law has
the effect of amending, repealing and
enacting several parts of the California
Codes. In addition, there are portions
that are not codified at all. In this case,
the main effect of SB 10 was to amend
Government Code §27771 to impose
additional responsibilities on the county
probation department and on probation
officers or some other department to
do pretrial risk assessments or to have
the court do so or to create a new
agency to do so. That agency, or part of
an existing agency, now to be known as
“Pretrial Assessment Services” (“PAS”)
would be responsible for assessing
people arrested. PAS would release
some of them, refer some of them to
the court and detaining some of them
for days or – subject to court order –
for the entire time they are awaiting
trial.
The Penal Code was also amended,
effective October 1, 2019, first, to repeal
the laws relating to bail, including cash
bail, bail bonds and property bonds
pursuant to new Penal Code §1320.6.
Second, a new Chapter 1.5 was added,
commencing with Penal Code §1320.7
through 1320.33, which becomes effec-
tive on the same date as the repeal.24
The uncodified portion of the law
requires, “To the extent practicable,
Judicial Council shall coordinate with
the Chief Probation Officers of Califor-
Background Photo Adobe Stock © sveta

nia to provide training efforts, conduct
joint training, and otherwise collaborate
in necessary startup functions to carry
out this act.”25
The procedure for pretrial release or
detention is multi-level but, at the heart
of the new pre-trial release and deten-
tion law, is the concept of risk. That is
addressed through two general
approaches. One is to list categories of
offenses that will disqualify a pretrial
detainee from being release immediately
or, in some cases, during the remainder
of the time awaiting trial. The second is
to require a “pretrial risk assessment”
that will be used by Probation or PAS to
predict whether a detainee will make
court appearances and whether a
detainee will commit a subsequent
offense. The categories of risk will be
“high,” “medium,” and “low.” This
assessment will be informed by the use
of a “validated risk assessment tool.”26
B. Preventive Detention
What does, or should, grab attention is
that the new procedures are less
concerned with whether a detainee will
appear in court and more upon the risk
of offending in the future. This later is
basically “preventive detention.” In
other words, through a combination of
the type of crime alleged and the results
of a “risk assessment tool” the proba-
tion officer or PAS Officer will make a
decision to release a person or hold
that person in jail for further evaluation
based on risk of offending. That further
evaluation may eventually go to a judge
who will decide whether to detain the
person for the entire time until trial.
So, it is fair to ask: Has no one seen the
movie “Minority Report?”27 There a
government unit called “PreCrime”
would arrest and detain people who
were determined to be future criminals.
They used the psychic powers of
“precogs” who had “foreknowledge” of
the future behavior of individuals.
Suffice it to say, it does not end well. But,
literary or cinematic characterizations
aside, preventive detention has long
been regarded with considerable suspi-
cion.28
Preventive detention is based on several
assumptions. The two most significant
assumptions are: One, that the fact a
CITATIONS SEE PAGE 41- 42
Special Feature California Bail Reform
person has been arrested for an alleged
offense puts him or her in a category of
people who may be subject to preven-
tive detention because of a danger of
offending in the future; and Two, that
there is some procedure or mechanism
by which to determine who, among
those detainees, is likely to offend in the
future.29 Both assumptions are subject
to challenges on a conceptual level. And
both are subject to challenges as applied
based on the question as to whether or
not there is robust data and protocols
to support the assessment of future
offending in real life applications.
Fundamentally, it is easy to justify (or
excuse) preventive detention where the
person arrested is really a bad guy –
with the assumption that he did what he
was booked on and it is probably a
reflection of “who he is.”30 It is easy not
to worry about detaining murderers,
rapists or maybe spousal batters as long
as it is assumed that they are guilty.31
We are not too worried about the type
of predictive tool used, if any, and are
likely to assume that just about any red
flag is enough to keep such people in
custody. But, doctrinally, that is not our
system.32 Traditionally in our system,
the accused is presumed innocent and
we generally do not accept the idea of
preventive detention for the innocent.
In fact, the argument can be made that
an arrest should not have effect on the
determination of future dangerousness
and any such determination should
stand on its own.
The United States Supreme Court in
Mathews v. Eldridge held that proce-
dures for the deprivation of property
(i.e., welfare benefits) must meet the
requirements of due process.33 In that
case, not involving personal liberty, the
Court said, “But procedural due process
rules are shaped by the risk of error
inherent in the truthfinding process as
applied to the generality of cases, not
the rare exceptions.”34 While the
Supreme Court applied the require-
ment of a “truthfinding process” depri-
vation of property, the Court has yet to
be so explicit in applying such a process
to pretrial liberty. Nevertheless, the
Supreme Court in United States v. Saler-
no recognized that the right to liberty is
“fundamental.”35 Certainly, the funda-
mental right to liberty must require a
process of truthfinding that is at least as
robust and reliable as one pertaining to
the termination of welfare benefits. A
meaningful pre-trial truthfinding process
is problematic if future dangerousness is
a criteria for deprivation of liberty.
Without all-knowing “precogs,” predic-
tive algorithms for determining future
offending are not robust at all and
reliance on the nature of the charges,
assumptions and risk assessment tools
ought not meet due process require-
ments.
C. Alleged Offense, Presump-
tions, Stages and Release or
Detention Procedures
Before we address the lack of predictive
ability of “risk assessment tools” (the
fact that such “tools” have not been
validated at a high predictive rate), this
article will review the procedures for
pretrial release or detention. These
procedures should be evaluated in light
of the truthfinding standard and due
process under both the California and
federal constitutions. These procedures
are invoked at multiple levels from the
time of arrest, to pre-arraignment
assessment, to hearing at arraignment,
to detention hearing which will establish
whether a person will be detained until
trial. They combine lists of charged
offenses (and some prior offenses) with
a “low,” “medium” or “high” risk assess-
ment on the risk assessment tool (the
validity of which we will examine in Part
III).
First, the categories of eligible offenses
with which a person is charged and
related criteria in SB 10 are arbitrary
and do not have a scientifically validated
correlation to either appearing in court
or to offending in the near future. There
are different criteria at the various
stages of the proceedings. Practitioners
will have to study the details at each
stage in light of the facts of any individual
case. However, to summarize for the
purpose of understanding the structure
of the SB 10 scheme:
Under PENAL CODE § 1320.10, PAS
can release a person on conditions prior
to arraignment if the person was
assessed with a “low risk” but is not
charged with sex offenses, misdemean-
ors involving domestic violence, a DUI
with injury or with a .20 or more blood
alcohol level or is a person who has
2019 23
Special Feature California Bail Reform
made threats or violated stalking laws,
or who has been arrested for a felony
involving violence or threats of violence,
or being armed or who has been arrest-
ed for a third offense driving under the
influence within the past 10 years, or
who was arrested for any type of
restraining order violation within five
years, had failures to appear, was pend-
ing trial or sentencing, on post-convic-
tion release supervision, threatened or
intimidated a witness, violated pretrial
release within five years, has been
convicted of or is now in custody
charged with a serious or violent felony.
People assessed as “medium risk” prior
to arraignment will be subject to possi-
ble release based on guidelines to be
established by the court and PAS. They
will not be eligible for release by PAS
without court order if they meet any of
the criteria above and, presumably, the
guidelines will include additional criteria
developed by the local courts and PAS
Officers, in addition to the statutory
criteria above, for both PAS and the
courts to determine whether or not
“medium risk” detainees will continue
to be detained.
If a person is not released by PAS but is
a low or medium risk, that person may
be evaluated by the court for a pre-ar-
raignment release. However, the court
may not release people pre-arraignment
if they were assessed as “high risk” or if
they are charged with a serious or
violent felony or were pending trial or
sentencing in a felony case at the time of
arrest. As to the people who qualify for
consideration, the court is to consider
information from the defendant, victim
and prosecution. Under PENAL CODE
§ 1320.13(h), “The court may decline to
release a person pending arraignment if
there is a substantial likelihood that no
condition or combination of conditions
of pretrial supervision will reasonably
assure public safety or the appearance
of the person as required.” In addition,
there shall be a presumption that no
conditions of release will assure safety if
the alleged crime involved violence or
threatened violence, the person was
armed or used a deadly weapon, was on
any form of supervised release, intimi-
dated or threatened a witness or victim
or violated the terms of pretrial release.
The next stage would be at the arraign-
24 2019
ment but, under PENAL CODE §
1320.16, only if the victim was given
notice of the hearing and had a reason-
able opportunity to be heard. This, of
course, could delay the hearing on
pre-trial detention while the person sits
in jail. The PAS assessment of “high,”
“medium” of “low” would be consid-
ered by the court with other informa-
tion. At the time of the arraignment, the
prosecutor may make a motion seeking
detention of the defendant pending trial
based on much of the same criteria as
that which create a presumption of
detention. The hearing would be held
no later than three days after the
motion for detention is filed or five days
if the defendant was not in custody
before arraignment with a right to ask
for up to three additional day’s continu-
ance.36 And, at the preventive detention
hearing, once again there is a rebuttable
presumption that no conditions of
release would satisfy public safety if the
crime is violent felony, the person is
assessed as “high risk,” the person was
convicted within five years of a serious
or violent felony, the person was facing
sentencing on a violent felony, had intim-
idated or threatened a witness or victim,
or was on supervision at the time of
arrest. The prosecutor has to establish
probable cause for the present offense
and the judge has to make a preventive
detention ruling by clear and convincing
evidence which may be based on
hearsay.
It is tautological that adding procedural
steps that prolong the detention of
detainees will adversely impact the
detainee’s liberty interests.37 Defendants
are disserved by adding procedural
complexity onto an already complicated
system that, in many cases, will simply
insure that they remain in custody
longer. SB 10 acknowledges that pretrial
release should be determined in a
somewhat timely fashion. It also
provides that, if there is a delay resulting
in detention, the trial court's statement
of reasons shall “contain more than
mere findings of ultimate fact or a
recitation of the relevant criteria for
release on bail; the statement should
clearly articulate the basis for the
court's utilization of such criteria.”38
All in all, a person accused could be
detained for a few hours on a “low risk”
minor case, or for a couple of days for a
pre-arraignment hearing, or five to ten
days for an arraignment hearing, or for a
few more days if the prosecutor seeks a
hearing on pre-trial preventive deten-
tion. Of course, if the person is actually
detained after the pretrial detention
hearing, the person could be in jail for
months or however long it takes await-
ing trial or final disposition.
Ultimately, SB 10 as presently constitut-
ed is not successful as creating a consti-
tutionally rigorous truthfinding process.
Its criteria to support preventive deten-
tion and its complex and prolonged
procedures are not successful at ensur-
ing due process or equal protection.
The kinds of crimes and criteria consid-
ered are not reliable or proven to be
predictive of either the likelihood to
appear or future dangerousness. In fact,
they seem to be the result of political
log-rolling rather than a concern for due
process. As a result of the arbitrary
statutory criteria and the discretion
granted to local judges and PAS Officers
to create guidelines, the overall opera-
tion of SB 10 is so potentially variable
that there will not be consistency from
courtroom to courtroom or county to
county thereby also denying equal
protection.
Nevertheless, it is a good thing that
monetary bail is eliminated by SB 10 if it
survives the bail industry’s referendum.
SB 10 should not be repealed; it should
be amended and fixed. A wealth bail
system has no place in a country found-
ed on due process and equality. Anatole
France, famously said, “In its majestic
equality, the law forbids rich and poor
alike to sleep under bridges, beg in the
streets and steal loaves of bread.”39 The
wealth bail system has a similar effect.
Of course, It could be said that eliminat-
ing monetary bail permits all -- rich and
poor alike -- to be confined in jail await-
ing trial on some sort of predictive
model. SB 10, without amendment,
should result in fewer people being held
in jail simply because of their poverty
but it will be also true that the rich and
the poor may be detained for days,
months or longer based on arbitrary
charges and unpredictive criteria. This
article has yet to address the un-validat-
ed algorithms of the “risk assessment
tools” themselves. However, for a start,
SB 10 should be amended to make the
various procedural levels of review
CITATIONS SEE PAGE 41- 42

more consistent with the presumption of
innocence and closer in nature to the
truthfinding process required in property
matters.
The Need to Revise the New
Bail Law – Part III
A.“Risk Assessment Tools”
The nature and validity of the “risk assess-
ment tools” which are incorporated into
SB 10 are also in need of significant legisla-
tive intervention. They are forensic
algorithms used to determine a person’s
liberty and should be subject to the same
scrutiny as any other piece of forensic
evidence used for that purpose. SB 10
refers to “risk assessment tools” and “risk
assessment instruments” interchangeably
and, as codified in PENAL CODE
§1330.7(k), says:
“’Validated risk assessment tool’ means a
risk assessment instrument, selected and
approved by the court, in consultation with
Pretrial Assessment Services or another
entity providing pretrial risk assessments,
from the list of approved pretrial risk
assessment tools maintained by the Judicial
Council. The assessment tools shall be
demonstrated by scientific research to be
accurate and reliable in assessing the risk
of a person failing to appear in court as
required or the risk to public safety due to
the commission of a new criminal offense if
the person is released before adjudication
of his or her current criminal offense and
minimize bias.”
That sounds scientific, however, there are
no accepted criteria for validation of a risk
assessment tool. So, since this tool may
mean that a person will be detained in jail
for days awaiting further determination or
for months or longer awaiting trial, the
question is: “Is there, or can there ever be,
a ‘validated risk assessment tool’ for the
purpose of predicting failures to appear or
future offending for people charged with a
crime?” It should be noted that there is
legislation pending that could help address
this issue but, for now, the criteria for
validity are entirely undefined.40
First, it is important to understand what
“validation” means in science and what it
means in this context. In general, valida-
tion of a method is an evaluation of the
procedure used to analyze data regarding
CITATIONS SEE PAGE 41- 42
California Bail Reform
the quality, reliability and consistency of
an analytical technique. In other words,
the method is more or less valid if it
follows scientific criteria, is repeatable
and renders consistent results. Valida-
tion is often associated with indepen-
dent verification which means that an
independent agency will test the proce-
dures in place and confirm that the
procedures have the quality, reliability
and consistency claimed by the user.
As the PCAST Report41 makes clear,
scientific validity involves both “founda-
tional validity” and “validity as applied.”
Much of forensic science has been based
on “rough heuristics to aid in criminal
investigations and were not grounded in
validation practices of scientific
research.”42 Foundational validity, to
meet current forensic standards, must
be based on the standards of a “research
culture.” This means that, “(1) methods
must be presumed to be unreliable until
their foundational validity has been
established based on empirical evidence
and (2) even then, scientific questioning
and review of methods must continue
on an ongoing basis.”
Risk assessment tools have been
discussed and reviewed extensively, but
they have not met the criteria of “foun-
dational validity.” In other words, while
sales people for various instruments and
law enforcement agencies tout the
usefulness of various tools, the scientific
community has yet to establish robust
foundational validity of these “tools.”
For instance, although there are two
specific predictive measures to be
attained under SB 10 -- prediction of
appearing in court and prediction of
future dangerousness -- most instru-
ments are designed to provide one
score that purportedly covers both
criteria. There is simply no scientific
metrology that has been (or could be)
established to measure both criteria
together. As shown in the section
below, even if future dangerousness is
considered to be the main criterion,
these tools fail a proficiency evaluation
to establish validity for that criterion
alone.
“Validity as applied” is also brought into
question in the administration of the
existing tools based on the reliability of
data and the consistency of the input of
that data. Some of the “tools” require
Special Feature
people to self-report as to some of the
questions and for others, an interviewer
is required to make subjective assess-
ments to input into the tool. Objective
data, under SB 10, would include crimi-
nal history within last three years
including failures to appear.43 Other
more subjective information would
include the code sections under which
the police officer booked the detainee
since there is wide discretion to
overbook or underbook a detainee.44 It
would also include information from the
“victim” or from the district attorney
and “any supplemental information
reasonably available that directly
addresses the arrested person’s risk to
public safety or risk of failure to appear
in court as required.”45 While all this
information may be helpful in a heuristic
determination, it is subjective and is not
made scientific by being included as a
part of an un-validated “risk assessment
tool.”
B. Validity and Accuracy
The foundational validity of the testing
instrument involves the question of how
accurate the “validated risk assessment
tool” in general and validity as applied
involves the question of how accurate
the “tool” is in practice. In other words,
a tool may be validated in the “research
culture” of science if it has an accuracy
rate that is commensurate with its use.
None of the “risk assessment tools” in
use have been subjected to proficiency
testing sufficient to establish validity to
the standards that would meet the
requirements of Daubert46 or Sargon47 or
would pass PCAST muster.
For instance, a scientific test -- say, a
non-invasive ultrasound test to be used
to determine the presence of acute
appendicitis -- might be considered
accurate enough to be considered a
valid test if it was 90% proficient in
identifying patients who have an
inflamed appendix.48 A patient would be
relatively upset if the patient underwent
an appendectomy and turned out to be
one out of the ten who did not have
appendicitis. Nevertheless, the appendi-
citis “assessment tool” would have been
subject to assessments of foundational
validity and validity as applied before it
would be used clinically. If it met those
validity tests -- say with a demonstrated
proficiency rate of 90% -- then it might
2019 25
Special Feature California Bail Reform
be deemed reliable enough to be used
as a part of a clinical determination of
whether or not to operate on a
patient’s abdomen.49
Here, the “risk assessment tool” is used
to determine whether or not a person
will be incarcerated pre-trial for a few
days or whether the person will sit in jail
for months or more while awaiting trial.
In this regard, the question of accuracy
of these risk assessment tools – the
validity in predicting that a detainee will
not show up to court or will offend -- is
critical to the right of personal liberty,
one of the most highly regarded rights in
American history from the Declaration
of Independence, through the Constitu-
tion and Bill of Rights, and through the
Civil War Amendments, including the
Fourteenth.50
It turns out that the alleged “validated
risk assessment tools” that are actually
being used to determine liberty have
accuracy rates that are inverted from
those used to determine an inflamed
appendix: more like those rated “high
risk” have less than a 10% likelihood of
committing another serious offense if
released pre-trial. The statistics vary
wildly as proclaimed by the proprietary
owners of the tests. Some claim that
they can predict that 42% of high risk
offenders will offend but, it turns out,
they use a two year period and count
traffic offenses. Some studies show that
re-arrest for a violent crime is closer to
8%.51 So, if a person is arrested and
scores a “high risk assessment” on one
of these tools, that person will remain in
jail because, based on the limited profile,
even though there is less than a one in
ten chance that the person, if released,
would offend before trial.
This might strike some as a “BIG BROTH-
ER,”52 “Brave NEW WORLD”53 or “Minority
Report”54 sort of thing: There is a 10
percent chance a person might offend
so lock them up! Even if it is a 42%
chance, is that enough? In other words,
even if a system of preventive detention
could be valid in some procedural sense,
there is no indication that these risk
assessment tools are valid foundational-
ly or as applied. The accuracy of the
tools do not meet the standards of a
truthfinding process for use in depriving
the liberty of human beings.
Under both California and federal
constitutional law, a “risk assessment
26 2019
tool” has to meet the requirements for
admissibility just as does any other
forensic test. As such, it must meet the
Daubert and Sargon standards. Daubert
considers “proficiency testing” to be a
part of any valid forensic test.55 Sargon
does not permit speculation in forensic
opinions.56 The forensic opinion based
on the risk assessment tool does not
meet the requirements of Daubert or
Sargon. It is an opinion that is used ex
parte or in a limited notice pretrial
detention hearing to summarily keep a
person in jail as well as at contested
detention hearings. Again this does not
mean that SB 10 should be repealed. It
means that serious forensic work has to
be done to determine whether these
“risk assessment tools” currently are, or
could ever be, admissible in making
these liberty determinations.
C. What to Do That May Help
Avoid Improper Preventive
Detention?
If the foregoing analysis is correct, then:
1) It is a good thing that SB 10 has ended
monetary wealth based bail; 2) liberty is
a fundamental concept in our law; 3) SB
10 provides for the denial of liberty by
way of preventive detention; 4) the
predictive criteria (both the litany of
potentially disqualifying charges and the
use of present “risk assessment tools”)
are not validated as sufficient for a
forensic opinion; and 5) the use of such
a system vests too much discretion in
the PAS Officer and the judge. These
combined mean that SB 10, as presently
configured, is not in compliance with
either Due Process or Equal Protection
under the state and federal constitu-
tions.57
In addition, this does not take into
consideration the practical reaction of
people of modest or greater means who
would have bailed themselves or their
friends of family out if monetary bail was
set under circumstances where they
now might be detained for days weeks
or months under SB 10. While it is
fundamentally unfair to the poor, the
fact is, for those of some means, there
was a practical means by which to avoid
otherwise unfair preventive detention in
many cases.58 Amendments to SB 10
need to take into account the history of
people who would have been deemed
“high risk” but who were released on
bail in assessing whether preventive
detention is necessary rather than, for
instance, imposing additional conditions
on release.
To address these theoretical, constitu-
tional and practical concerns -- without
returning to monetary bail – amend-
ments and funding are necessary, prefer-
ably before the October 1, 2019 the
original effective date of the law. While
there is no way, under any conceivable
version of SB 10, to eliminate unfair
preventive detention there are three
ways to possibly amend the law and to
fund programs that help meet the public
safety and court appearance require-
ments.
One way to amend is to limit the
disqualifying or presumptively disqualify-
ing criteria based on the list of charges
or prior offenses or based on their
implementation. For instance, eliminat-
ing the presumptive detention of a
person accused of a first offense drunk
driving with a .20 or more BAC59 might
be appropriate although probably politi-
cally sensitive. The list of criteria was
obviously the product of legislative
negotiation during the pendency of SB
10 and it will be difficult, given political
reality, that new legislation will make
significant amendments to the list.
Furthermore, an effort could be made
to limit the absolute or presumptive
nature of the charged or prior offenses
or to temper the process to favor
release over detention. This also seems
politically difficult, but not impossible.
Serious attention to the list of criteria
along with ways to procedurally prefer-
ence release over detention may not
avoid unfair or arbitrary preventive
detention in practice but it may
minimize those consequences.
A second way is to invoke mechanical
means to assure that people do not
offend and that they show up in court.
Some procedures are currently in effect
and there is a movement afoot to
expand them. For instance, procedures
could include regular check-ins with
pretrial services, having government
personnel call people to remind them to
go to court,60 and, even, requiring
restrictive devices like GPS or SCRAM
or electronic monitoring with curfew
requirements. These and other mecha-
nisms are being used in various places
currently as conditions of OR release.
However, they are to one degree or
another restrictive and, particularly the
monitoring and curfew procedures
CITATIONS SEE PAGE 41- 42
should only be ordered if necessary. All
of these “watchful” supervisory mecha-
nisms imposed on a subject are
perceived as, to one degree or another,
the hand of the government that some-
times set up people to fail whereby they
are swept back into custody.
D. A More Systemic Approach
That Might Have An Overall
Positive Societal Effect And
Also Help Meet The Require-
ments Of SB 10?
A third way to address the issues
related pretrial release is to fund and
implement programs that affirmatively
will reduce future offenses and increase
appearances in court. If they work, and
they are shown to do so, the cost of
these procedures would be more than
offset by the reduction in cost of incar-
ceration, future arrests, and overall
harm to the community. Since they can
be implemented in direct response to
the requirements of SB 10, there should
be no political objection to their
creation and funding. A mantra through-
out SB 10 is that, “the court shall order
a defendant released on his or her own
recognizance or supervised own recog-
nizance with the least restrictive
nonmonetary condition or combination
of conditions that will reasonably assure
public safety and the defendant’s return
their dignity and bearings. With this
kind of help alone, they are much more
likely to not be a threat to public safety
and more likely to show up for court.
This is not an idea that comes only from
a progressive perspective, it has also
been endorsed by conservatives who
have seen its efficacy first hand.62
There is much written about the Bronx
Defender model and, as noted, it is not
the only model of holistic defense.
However, it is the proposal of this article
that there should be legislative enact-
ments and funding for defender services
(that can extend to people who can
afford private counsel as well) so that
the system can reasonably ensure public
safety and appearances at court. The
Bronx Defender, itself, sets forth four
pillars of holistic defense: “Seamless
access to services that meet legal and
social support needs;” “Dynamic, inter-
disciplinary communication;” “Advo-
cates with an interdisciplinary skill set;”
and “A robust understanding of, and
connection to, the community served.”63
To implement this, they obtained funding
and implemented programs involving
social workers with interdisciplinary
connections and civil lawyers to deal
with public health benefits, housing, child
welfare issues, public benefits, motor
vehicle issues, child support, immigra-
tion, mental health and other issues.
effective date.
In an age of mass incarceration and a
punitive (and ineffectual) war on crime,
we might actually make the world a
better place by using SB 10 as an oppor-
tunity to fund meaningful change. The
more we can emulate the Bronx
Defender system, or variants thereof,
the more we are likely to serve public
safety and assure appearance in court of
people charged with crime. This will not
solve everything and challenges to unfair
preventive detention will still be made.
But, SB 10 does provide a legitimate
statutory purpose to implement
programs and spend public funds in a
way that benefits society and does not
just pay to house and transport people
accused.
ROBERT SANGER   
   
to court.”61 In fact, properly read, that is They train their criminal defense     
the focus of the SB 10: people can be lawyers to be aware of and utilize all of 
 

released if there are “conditions or a the interdisciplinary opportunities  

combination of conditions that reason- available to help their clients break out  
   
 
ably assure public safety and the defen- of the revolving door of despair that 


dant’s return to court.” Furthermore, often precipitates or accompanies   
   
these conditions must be the “least criminal charges. There are benefits to   
   
restrictive” conditions. Put another way, the people charged but also benefits to
without locking people up pretrial, how the taxpayers.64 

­
can we reasonably assure people will  € 
  ‚
not reoffend and will show up for court? Conclusion ƒ€‚„


 …
It turns out that there is a lot of As presented in this article, there is   ­
… 
 
 
research on just this and the research reason for concern over the implemen-  
  

supports the holistic treatment of tation of SB 10 as unamended. Repeal-    
 

  

people accused of offenses. It is often ing monetary bail is good; preventive
referred to as the “Bronx Defender” detention, except in rare instances, is 
     
 
system but has been adopted in one bad. The way pretrial release is set up 
 †€ 

form or another by various communi- currently under SB 10 will lead to
    
 

ties across the nation, including, for arbitrary, unequal and unfair use of ­
instance, the Office of the Public preventive detention. SB 10, as it is
    
Defender in San Francisco and to some written, may or may not survive consti- 

­
extent the Santa Barbara Public Defend- tutional challenge as a whole but some    
  
er’s Office. It is common sense and it aspects, like the presumptions and the
works. Treat people and their situation reliance on a non-existent “validated       
 

in life rather than processing an assem- risk assessment tool” seem likely to be ‚

€­
bly line defense of criminal charges. applied in an unconstitutional fashion. € 

People are much more likely to recover Amendments can be made before the ƒ€€„

2019 27
Member Spotlight Jessie Morris
Member
Spotlight
Jessie Morris
By Allison Zuvela
F
riend, mentor, and true
believer, these are only a
few words on how to
describe Jessie Morris. He
has been a long time
member of CACJ and was on the
Board of Governors for years. He is a
Board Certified Criminal Law Special-
ist for over twenty years and is a
talented litigator. He has worked in
private practice focusing on indigent
defense, in the Office of the State
Public Defender, and with the Public
Defender’s Offices in Yolo and Sacra-
mento Counties. These are only a few
of Jessie’s achievements as a criminal
defense attorney.
28 2019
Give him the poor, the down trodden,
and your humbled masses and I will
show you one dynamic litigator who
will stand up against the government
and give his client a voice. One of
those fights was the fight to save
Manny Babbitt’s life. Manny was
convicted of capital murder in 1982.
Jessie was part of the defense team
who poured their hearts and souls
into attempting to save Manny’s life.
On May 4, 1999, the state executed
Manny and left an indelible mark on
Jessie and a resolution for him to fight
for justice.
Jessie is a gifted trial lawyer taking on
some of the most difficult cases that
can be tried. However, the label I hear
from others to describe Jessie is not
only litigator, but mentor. For me, I was
his Keenan Counsel on a capital case.
He guided me on the ins and outs of
capital litigation which also included
negotiating a plea that saved our
client’s life. He also gave me life
lessons, such as teaching me self-de-
fense moves in case I had the unruly
client or how to tactfully argue an
emotional sentencing so that I could
effectively advocate for my client. I was
not alone. Jessie offered encourage-
ment to all those around him. He has
guided many lawyers into becoming

“ Jessie stood outside the courtroom
steps and advised every person who
walked into that courtroom what their
rights were. He also told them that he
was right outside the door and he
would be happy to talk to anyone who
wanted his advice. That type of dedica-
tion to constitutional principle is what
separates Jessie from the crowd.
top notch litigators through his advice,
support, and leadership.
Jessie is extremely principled and will
stand up for what is right, even to his
own detriment. An example of this is
when he learned that a Commissioner
was not advising people about their
rights in arraignment court. Jessie was
determined to right that wrong. Jessie
went to court the next day in order to
advise people about their rights,
including the right to an attorney. He
was summarily ordered out of court
by the Commissioner. That did not
deter Jessie in his advocacy. Jessie
stood outside the courtroom steps
Member Spotlight Jessie Morris
“
and advised every person who walked are honored that he continues to be
into that courtroom what their rights an advocate with us.” Maya Angelou
were. He also told them that he was said that at the end of the day people
right outside the door and he would won't remember what you said or did,
be happy to talk to anyone who they will remember how you made
wanted his advice. That type of them feel. Jessie Morris makes us feel
dedication to constitutional principle is that as defense attorneys we can make
what separates Jessie from the crowd. a difference.
He is described as a consummate
professional, a hard worker, and a
friend. Jessie truly values this communi-
ty and he holds strong beliefs in the
importance of criminal defense work.
Steve Garrett, the Sacramento County
Public Defender said, “We are better
for having Jessie in our office and we
2019 29
Committee Legislative

Photo ShutterStock © SchnepfDesign

California Attorneys for Criminal Justice Legislative Update 2019 Session Summary
By Ignacio Hernández Esq.

2019 LEGISLATIVE YEAR STARTS WITH HISTORIC

ACTION ON THE DEATH PENALTY,
ENDS WITH CALIFORNIA STATE SENATE
FORCED TO ABANDON ITS CHAMBERS DUE TO PROTESTORS
30 2019

Pace of criminal justice reform slows,
but continues the same path
Governor Jerry Brown’s final years in office
were marked by a shift in criminal justice
reform. Brown’s era will be remembered
for its adoption of “realignment” and the
rapid waves of sentencing changes, including
a roll back of the felony murder rule. When
Gavin Newsom was sworn in as Governor,
public policy experts wondered aloud if
California would see a dramatic drop off in
criminal justice reform legislation. However,
the newly-elected Governor from San
Francisco began his tenure with a very bold
and dramatic announcement signaling
criminal justice reform would continue
under his administration.
Just three weeks into office, Governor
Newsom signed an Executive Order that
would in effect prevent any execution from
occurring while he is in office. This “morato-
rium” on capital punishment reaffirms that
the political landscape in California is
undeniably entrenched in a moment of
reform. The “tough on crime” era continues
to be a distant memory. Although it is
unclear how long the political pendulum will
continue to swing in this direction, it appears
this momentum will continue for the
foreseeable future.
CACJ was honored that Governor Newsom
invited CACJ President Jacqueline Goodman
to join him the day of his capital punishment
moratorium announcement and celebration
in his office.
“Moments like this are a reminder
that all the hard work CACJ mem-
bers do day-to-day in the court-
room set the stage for our elected
leaders to deconstruct our criminal
justice system. We must not waver
in our commitment to fight for our
clients, and a system that values
constitutional protections above
political expediency,” said Good-
man.
As the legislative year progressed, CACJ
supported more than 50 reform bills and
also fought against dozens of others (see
partial list below). CACJ continues to be a
strong and active force for you in the State
Capitol.
On the last day of this year’s legislative
session, the California State Senate was
forced to vacate their chamber after a
protester sitting in the balcony through a
blood-like substance on several Senators.
The protester was a part of a larger group
protesting SB 276 (Pan), which restricted
and regulated medical exemptions for
vaccines. After Governor Newsom signed
the bill, protests in the Capitol continued to
grow, with protesters chanting and banging
on walls, culminating in the aforementioned
incident. The Senate was forced to finish
their legislative business in a committee
room, delaying the adjournment of session
until 3am the following morning.
CACJ continues its campaign against
wrongful convictions and in support
of exonerees
Several years ago, CACJ launched a
multi-year legislative strategy to combat the
epidemic of wrongful convictions in
California. We first set our sights on curbing
the misbehavior of prosecutors. CACJ
worked with allies to convince the State Bar
of California to adopt its first ethical rule for
prosecutors. Subsequently, CACJ sponsored
AB 1909 (Lopez) to make California the first
state in the country to adopt a felony
specifically for Brady-type violations by
prosecutors. Despite initial pushback on the
bill, ultimately it was adopted on a bipartisan
near-unanimous vote and signed into law by
then Governor Jerry Brown.
CACJ then focused on the well-being of the
exonerees. Three years ago, it was brought
to CACJ’s attention that the wrongfully
convicted were being released from
California prisons without basic support
services: no gate money; no assistance with
housing, job training or mental health
services. In fact, upon release from prison,
the wrongfully convicted received less
support from the State of California than
parolees. CACJ sponsored “Obie’s law” in
2015 which for the first time entitled
exonerees to the same services as parolees.
A first of its kind law in the country.
CACJ then went further in 2018 with
legislation to automatically enroll exonerees
in Med-Cal, Cal-Fresh and state job training
programs. The legislation, SB 1050, also
provides $1000 gate money upon release.
While CACJ was very proud of these
Committee Legislative
accomplishments, the experience of
exonerees demanded that more be done.
The most immediate need for exonerees
was housing. Many of these men and women
had nowhere to live once they were set free
from prison. Without any money, job, or
other means of support, exonerees struggle.
Many live with their attorneys for extended
periods; others bounce from friend-to-friend
for months or longer. CACJ, along with the
organization Exonerated Nation, decided
bold action was required. As a result, CACJ
approached Assemblymember Shirley
Weber, a past recipient of CACJ’s Legislator
of the Year award, to discuss options.
Ultimately, CACJ worked with the Dr.
Weber to draft Assembly Bill 701. The
legislation provides exonerees with four
years of housing paid for by the State of
California. The State will cover the cost of a
hotel, rental housing, or even a mortgage for
the first four years of freedom for exoner-
ees.
At the outset many policy experts did not
expect this legislation to have any chance of
passing. However, not only did AB 701 pass
both the California State Senate and the
California State Assembly, it passed
UNANIMOUSLY!
At the time this Forum issue went into print,
AB 701 was sitting on Governor Newsom’s
desk awaiting his signature. Throughout the
legislative year both the Governor’s staff and
CDCR provided invaluable technical
feedback on the proposal. We will alert
CACJ members when the Governor
announces his decision on this bill. If signed,
California will be the first and only state in
the country to pay for the housing costs of
the wrongfully convicted upon their release.
We are grateful to Assemblymember
Weber, her staff, and Obie Anthony, an
exoneree and the founder of Exonerated
Nation for working with CACJ on this
legislation.
On a follow-up, last year Assemblymember
Weber authored CACJ sponsored legislation
allow defense attorneys to directly access
criminal history/rap sheets. Due to the
work of CACJ members and the organiza-
tion, the Attorney General developed an
electronic application just for these types of
requests. It appears that these requests are
being processed within the same business
day.
2019 31
Committee Legislative

Notable Bills CACJ Supported this Year:

SB 136 (Wiener D) One-year sentence enhancement

As a follow up to last year’s reform of a prison prior enhancement, this legislation

narrow’s the current one-year enhancement for each prison prior or county jail felony
term to only apply to any prior sexually violent offense. This bill was passed by the
legislature and is sitting on the Governor’s desk awaiting action.
On the Governor’s Desk

AB 927 (Jones-Sawyer D) Crimes: fines and fees: defendant’s ability to pay.

This bill prohibits the court in a criminal or juvenile proceeding involving a misdemeanor
or felony from imposing fines, fees, and assessments, without making a finding that the
defendant has the ability to pay.
On the Governor’s Desk

AB 1261 (Jones-Sawyer D) Controlled substances: narcotics registry.

This bill eliminates the requirement that individuals convicted of specified drug offenses
register with local law enforcement.
On the Governor’s Desk

SB 42 (Skinner D) The Getting Home Safe Act.

Summary: This bill mandates that all county jails follow specified procedures for releasing
a person from jail to ensure that person's safety, including providing a safe place for the
person to wait after release during evening hours.
On the Governor’s Desk

SB 233 (Wiener D) Immunity from arrest.

Summary: This bill prohibits the arrest of a person for misdemeanor drug or prostitution
related offenses when the person is reporting a violent crime and makes inadmissible
evidence of possession of a condom to prove a violation of specified crimes related to
prostitution.
Signed by the Governor 7-30-2019

SB 269 (Bradford D) Wrongful convictions.

Summary: This bill extends the statute of limitations for when a wrongfully convicted
individual can file a claim with the California Victim Compensation Board from two years
to ten years after exoneration or release.
On the Governor’s desk

SB 310 (Skinner) Jury selection.

This bill permits a person with a prior felony conviction, who is not on active parole or
community supervision or on the sex offender registry, to serve on a jury.
On the Governor’s desk

AB 1076 (Ting) Expungement

This legislation revamps the expungement process and requires the Attorney General to
regularly review and offer relief to individuals who are eligible to be removed from the
state criminal justice history database.

32 2019
 Department Great Moments

*This column lives on reader

submissions. Please email
your contribution to me at

Great MOMENTS IN
chuck @charlessevilla.com

Law Office of Charles Sevilla

COURTROOM HISTORY
402 West Broadway, Suite 720
San Diego, CA 92101
© 2019

By Charles M. Sevilla*

An Opinion Worth Reading

(by Hon. Hannigan, J., New York)

I have been saving this hilarious gem for many years. It is a trial
judge’s lament over state appellate rulings he must follow,
however reluctantly. Lightly edited.
This indictment [No. 86 152] charges
the defendants with the crime of
obscenity.The charges stem from exhib-
iting two movies entitled "Little Girls
Lost" and "Lover of Lolita." The defen-
dant now moves to suppress the
evidence (the films) on the basis of the
latest holding of the Court of Appeals in
the P.J. Video case. [People v. P. J. Video,
Inc., 68 N.Y.2d 296 (1986)].
Since I find the handling of that case by
the Court of Appeals to be "patently
offensive" to the constitution (federal
and state) it will be necessary to review
its roller coaster history. P.J.Video made
its first appearance in the Court of
Appeals in 1985. The majority decided
that the affidavits of the investigator
violated the requirements of the federal
constitution, as interpreted by the U.S.
Supreme Court. [New York v. P. J. Video,
Inc., 475 U.S. 868 (1986)]
The philosophical meandering of the
majority were true to form. The typical
decision, replete with run on sentences,
and plenty of citations. It is becoming
easier to identify sloppy logic in the
decisions of the Court of Appeals.
Simply scan the page, looking for 1)
federal citations, 2) quotations, and 3)
sentences that continue for three print-
ed lines.
If you find any two of these indicia of a
cluttered mind, you would be wise to
skip that page, and start further into the
opinion. The federal citations are useful
when the appellate judge is playing the
game of "blame the feds." A string of
federal citations is normally the first
clue that the Court of Appeals is going
to announce a new constitutional
mandate, but, doesn't want to be
blamed for it. When your eye picks up
the endless quotation marks, you can be
CHARLES M. SEVILLA,
a past president of CACJ, is a
former Chief Deputy State Public
Defender, Chief Trial Attorney for
Federal Defenders of San Diego
and has been in private practice
in San Diego since 1983. His
publications include two novels
(Wilkes: His Life & Crime, Wilkes
on Trial) and articles concerning
the cruel conditions in state
prisons, the exclusionary rule,
police perjury, ineffective
assistance of counsel claims,
and many others. Mr. Sevilla has
been listed in all editions of Best
Lawyers in America and has
often argued in state and federal
appellate courts including the
United States Supreme Court.

2019 33
Department Great Moments
certain that the court is going to dump
responsibility some where else.
Lastly, we enter the realm of the stream
of consciousness sentences. These run
on sentences are symptomatic of
confused thought patterns. A clear mind
can express the most obscure concept
in simple clean cut language. The prob-
lems arise, in English composition, when
both the concept and the mind are
confused. Hence, the endless diatribe.
The Simon's authored majority decision
of 1985 contains an abundance of the
aforementioned three elements of
confused thinking. If you boil down the
verbiage, and omit the hyperbole, it says:
The standards set by the feds has not
been met. A litany of sucking and fucking
does not reveal prurient interest or lack
of artistic value. So say the feds. Don't
blame us.
Now, the dissent (J. Jasen) tried to
warn the majority. [See People v. P.J.
Video, Inc., 65 N.Y.2d 566, 573-588
(1985)]. Boiled down to its essentials, it
said: You're not making sense. Use your
head unlimited fucking and sucking
could lead rational person to find prob-
able cause to believe that the movie
was addressed to the prurient interest,
and lacks any value. Also, I wouldn't
blame the feds. They might get mad.
Well, so far, no big problem. The prob-
lem is not the dissent. It is the appendix
to the dissent. Here J. Jasen attaches the
affidavits of the investigator. Talk about
the straw that broke the camel's back.
Talk about the s (obscenity deleted)
that hit the fan. Not content with
dissent, he rubbed their noses in it.
You read the affidavits endless sucking
and fucking and you turn back to the
majority decision. And, then you giggle.
You juxtapose the federal citations and
the fucking and sucking and you laugh
aloud. You read the fucking and sucking
affidavit, contrasting it with the quoted
sentences of the majority, "He made no
attempt to reveal the story line (or lack
of one) of the films or demonstrate that
their 'predominant appeal' was to pruri-
ent interest."
And you roll on the floor, holding your
sides, afraid you'll explode with laughter.
Raucous laughter. Insane laughter. And
you say "good for you judge expose
34 2019
their sophistry. That's a gutsy move."
Didn't the Erie County District Attor-
ney take an appeal to the U.S. Supreme
Court. This is too good to be true.
Here he was appealing to the same
people that our Court of Appeals was
blaming for the existence of this ridicu-
lous rule about probable cause. They
would probably have let it ride, denied
cert., and taken the blame, except for
that damned appendix. Attaching the
appendix guaranteed that certiorari
would be granted. You can call the
Supreme Court mistaken; but, you can't
say they're stupid. Those folks know
that when it walks like a duck, quacks
like a duck and hangs around exclusively
with ducks, there is probable cause to
believe it is a duck. In short, the U.S.
Supreme Court said that they couldn't
find any reason not to believe what was
described on the appendix was a duck.
If the Court of Appeals couldn't decide
between a duck and a goose, that was
their problem. In a word, the Supreme
Court said: Don't blame us for your
ridiculous decision. The appendix
describes continuous sucking and
fucking. If you find artistic value, you're
on your own.
[Editor's note: I have tastefully, I hope,
chosen the verbs sucking and fucking,
rather than the more neutral verbs
intercourse, fellatio and cunnilingus. Call
it artistic license. Hopefully, it gives this
otherwise bland legal decision a certain
artistic value.]
Photo Adobe Stock © sebra
Maybe this would have been the end of
the matter. Except, the U.S. Supreme
Court had to take their turn and rub
the court's nose in it again. Damned if
they didn't attach the same appendix to
their decision.
How does the Court of Appeals
respond? How else? Attack. Blame the
feds. Blame them for diluting the consti-
tution. Suggest that it is them, not us,
who are vacillating, modifying, retreat-
ing. Take the heat off yourself. Suggest
that we are the epitome of consistency;
it is the feds who: 1) have muddied the
rules governing police conduct, 2) have
deleted judicial supervision, and 3)
allowed the police to intrude into our
citizen's rights. Are you serious? Huey
Long, on his worst day, would not have
said that about his most hated oppo-
nent. Why, even J. Hancock knows that
this latest attempt at blame throwing is
pure bull (obscenity deleted). [See
People v. P. J. Video, Inc., 68 N.Y.2d 296
(1986)].
Let’s get back to the problem.The prob-
lem is that the 4th amendment of the
U.S. Constitution and article 1, section
12 of the N.Y. Constitution are identical.
It's not that they are similar, or nearly
alike they are identical. Same words,
same phrasing, same commas. They are
twins. And the U.S. Supreme Court says
that their Constitution means that
common sense will be used in issuing
search warrants. How can the N.Y.
Court of Appeals say that the exact

same words have exactly the opposite
meaning?
Why, because a law review article in
Texas says that can happen when you
apply non interpretive review. When
you use that tool, then, words don't
mean what they mean; they mean what
you say they mean. Know what I mean!
When you use that review, (we call it
the Texas flip flop) you only try to
judicially (not legislatively) perceive
sound policy, justice and fundamental
fairness. Now that's going to allow just a
smidgen of fudging.
Thus, our Court of Appeals takes on the
mantle of the Queen of Hearts and
announces the words in our Constitu-
tion mean only what we say they mean.
(See Alice in Wonderland). With this
sort of nebulous standard, we can
expect drivel such as: "Although state
courts may not circumscribe guaran-
tees by the federal constitution, they
may interpret their own to supplement
or expand them."
Look folks, let me explain one basic
premise about constitutional rights.
Ready. Now think. Rights do
not (repeat do not) exist in a vacuum.
If you expand the rights of one
person or group; you must to that
extent diminish the rights of other
people or groups. Now, think about that
for a while, before reading further.
You see, Stanley v. Georgia is anomaly.
[Stanley v. Georgia, 394 U.S. 557 (1969)].
Normally, the cases involve a balance of
constitutional rights, which are in
conflict. It is no problem to say that you
have a constitutional right to yell "fire"
in an empty theater. The problem arises
when other people are in the theater.
Now you have conflict. For, if one has
the right to yell "fire," then the other
has the obligation to endure that
speech. And as that right is expanded
or supplemented. So are my obligations
to endure expanded and enlarged.
So please don't speak to us of such a
parochial platitude of expanding rights
tell us what rights you want to diminish
or extinguish. That would be more
honest and forthright.
This suggestion that we are simply
Department Great Moments
expanding constitutional rights is about
as honest as the attempt to blame the
feds for diminishing those rights. It just
ain't true.
Moving right along, I am instructed that
the decision is for my benefit. The
decision is no mere glorification of the
egos of the appellate judges no it is
necessary to instruct the lesser talent-
ed trial judges. "In addition, we have
sought to provide and maintain 'bright
line' rules to guide the decisions of law
enforcement and judicial personnel
who must understand and implement
our decisions in their day to day opera-
tions in the field."
Are you serious? Do you really think
that we will try to understand this
drivel? If we are looking for guidance, it
is how do we function in spite of this
pretentious posturing. Implement your
decision? We spend days distinguishing
our cases, in order to avoid applying
these shapeless, formless, jellylike
constitutional mandates. It is a joke.
These decisions are not honored,
respected, understood and implement-
ed. They are laughed at and avoided.
They do not represent justice. These
decisions are perceived as the mean-
derings of elevated egos, who worship
their own image, rather than any
concept of fairness that is foreign to
their own personal philosophy. The
utterances do not brighten the law
they hide the sun by raising these dust
clouds or circuitous reasoning. You do
not establish standards if you generate
confusion.
I am now faced with affidavits that detail
a superabundance of sucking and
fucking. The officers do not explicitly
tell me the story line. They would find it
hard to describe what does not exist.
Does anyone seriously think that there
is the semblance of a story line in any of
the films? Now, we all know that the
police officer cannot express that data
except in the form of an opinion. We
also all know that the officer's opinion is
given zero value. But, the Court of
Appeals knew this both times that it
considered the P.J. Video case. They just
refuse to admit it. If I deny the suppres-
sion motion, I will have a 2 3 week trial
which may be a complete waste of time.
The bright line seems to indicate that
the films should be suppressed.
No. The better way is to grant the
suppression and hope that the District
Attorney appeals. I am not about to
waste my time, and jurors and witness-
es' time, to learn that I didn't follow the
bright line.
Let the court of appeals set the bright
line with these affidavits. If they find
them sufficient, then I am willing to
invest the time and effort and money in
a trial of this issue.
In the spirit of J. Jasen and the member-
ship of the U.S. Supreme Court, I have
attached a copy of the affidavits as an
appendix to this decision. The motion
to suppress is granted.
Having finished reading this decision,
the reader should be experiencing
intense feelings of disgust. The language,
the accusations, the name calling is this
the level to which the judiciary has
descended? Now, measure the disgust
that arises from this decision against the
same feeling of disgust that you should
have had when you read the two P.J.
Video decisions from the Court of
Appeals.
You see, I intended that the reader
would be disgusted. I didn't try to
disguise garbage when I discussed it. At
last this is an honest decision. I have not
modified the constitution to fit my own
philosophy. I figure if I want to change
the constitution I should run for office
(legislative or executive), not rely upon
the Texas Law Review for my authority.
Perhaps it's time for the judiciary to
grow up and act mature that means
stop manipulating the Constitution by
posturing platitudes and also stop trying
to shock by the use of vulgarisms.
Instead of imposing our own will and
satiating our own egos, let's go back to
just applying the law as it is, not as we
want it. It's a more honest approach to
justice and, perhaps, the only valid route
to that goal.
2019 35
Committee Amicus
CACJ FILES AMICUS BRIEFS
IN CIVIL RIGHTS,
IMMIGRATION CASES
By Stephen Dunkle, Amicus Chair, J.T. Philipsborn,Vice Chair
T he Amicus Committee invites board
members to identify compelling issues
that they care about and that they think
we could help with and to encourage
lawyers in their local legal communities
to get involved with us.
CACJ has filed briefs, letter briefs, or
otherwise contributed to the following
cases, some of which are currently in
litigation:
People v. Camacho
(California Supreme Court):
CACJ filed an amicus letter in
response to the Los Angeles
District Attorney’s Office’s request
for depublication of the opinion in
People v. Camacho (2019) 32
Cal.App.5th 998 (Camacho).
36 2019
Camacho was the first published
appellate decision to address the
recent amendments to Penal Code
section 1473.7 enacted by A.B.
2867. Included in those
amendments is a provision that a
defendant need not establish
ineffective assistance of counsel
under the Sixth Amendment to
obtain relief under the statute.
Instead, a defendant is “required
only to show that one or more of
the established errors were
prejudicial and damaged his "ability
to meaningfully understand, defend
against, or knowingly accept the
actual or potential adverse
immigration consequences of [his]
plea ...." The depublication request
was denied. Elias Batchelder on the
letter brief for CACJ.
McDonough v. Smith (United
States Supreme Court):
The United States Supreme Court
handed down a rare reversal of the
Second Circuit in an important civil
rights case for those seeking
damages because of a prosecution
based on fabricated evidence. The
Second Circuit had ruled that the
statute of limitations runs from the
time that the aggrieved person
discovers the fabrication--regardless
of whether the underlying criminal
case was still ongoing or not. CACJ
and a number of organizations
including Brooklyn Defender
Services argued it was fundamental-
ly unfair to force relief to be sought
that early in the process, and that
the plaintiff in such a case could

wait until the criminal case had
terminated in his or her favor
before filing a civil rights action. The
Court agreed that where the
theory of liability involves malicious
prosecution, imposing an early
statute of limitations was not in
keeping with the concept of allow-
ing opportunity for redress.
The case has significance for those
falsely or fraudulently accused,
including those with innocence
claims whose opportunity for relief
would (and in certain historical
cases did) run out if the Second
Circuit's reasoning prevailed. CACJ
and fellow amici were represented
by lawyers from Arnold & Porter
and Kaye Scholer in Washington,
D.C.
Committee Amicus
Photo Flickr Creative Commons © dpp-law
In the Matter of Contra Cost Circuit ruling (917 F 3d 515 (6th
County 987.9 cases: Cir, 2019)) permitting imposition of
filing fees on habeas corpus
CACJ has appeared as an amicus petitioners. This case is currently
joined in declarations from CACJ being tracked.
Amicus Committee Vice Chair John
Philipsborn in two capital cases in
Contra Costa County in which
funding issues are being litigated.
Since the pleadings are currently
under seal the specific cases are not
identified here.
Samarripa v. Kizziah (United
States Supreme Court):
CACJ has been asked by former
Solicitor General Neal Katyal to
consider appearing as an amicus in
supporting a petition for writ of
certiorari seeking review of a Sixth
2019 37
Department Book Reviews
ARSON “SCIENCE”: JUNK SCIENCE?
Reviews by Al Manaster
I
n my experience, which I’ve
confirmed is still the case,
arson investigators are
different. This is true wheth-
er they are police or
firefighters. Although some non-arson
police investigators are friendly, most
are not; many are actively hostile. Few
will just chat about your case. The arson
folks are, as I say, different. They are
uniformly friendly, will chat you up, and
are just thrilled to talk about your case.
With little prompting, they will gladly
explain in detail exactly why they
concluded that your fire is an arson and
not an accident. But it turns out there’s
a tiny problem with their “science”: it’s
junk.
Edward Humes has a new book out,
published in January 2019, entitled
Burned: A Story of Murder and the Crime
That Wasn’t. It’s the story of a 1989 case
of a fire that killed three young children.
Their mother ran for help. There was
no initial thought that the fire was arson,
but a police arson investigator inspected
the premises a week later. The conclu-
sion: arson. Notably, there was no
evidence of arson other than the investi-
gator’s opinion. The case ended up in
trial, our own Charlie Gessler was trial
counsel. The jury convicted, but came
back with a life without parole verdict.
Years later the California Innocence
Project, from Cal. Western School of
Law, investigated this case and brought a
habeas corpus challenge to the convic-
tion. This is not a challenge based on the
client being innocent. It’s a challenge
that there was never a crime, that the
fire was simply not arson.
It turns out that the “science” relied on
by every police and fire arson investiga-
tor is received wisdom. That is, all the
investigators agree on the indicators
38 2019
that a fire was deliberately set as
opposed to being accidental. The prob-
lem is that there is no science behind
these indicators. None. The investiga-
tors just all agree.
Events in the 1990s caused some arson
investigators to look into the scientific
basis for these beliefs. There was a
wildfire in Oakland in 1991. There’s no
doubt about what burned down 3,000
homes: the wildfire. A team of arson
investigators inspected the homes. They
found that the indicators relied on by all
arson investigators appeared in fully a
quarter of the homes. This means that
had the actual source of the fire not
been known for a fact, every arson
investigator in the country would have
sworn under oath that the fire was
arson.
A key reason for this is the concept of
“negative corpus.” The idea is that
where no accidental cause for a fire can
be found, the fire must have been inten-
tionally started and thus was arson. Of
course, evidence of an accidental cause
might have been burned up in the fire.
Another key point is called “flashover.”
At a certain hot temperature during a
fire, every flammable surface in the area
will ignite simultaneously. This can
distort what the apparent source of the
fire was. For example, a fire could start
in the living room and spread to a
bedroom. If a window in the bedroom is
broken open (by someone inside or by a
rescuer), the rush of oxygen into the
bedroom could create a flashover. The
intense burning could make it appear
that the source of the fire was the
bedroom. Or that there were two
sources of the fire, living room and
bedroom. The latter would suggest
arson.
Humes is able to explain these and
other pretty esoteric scientific concepts
clearly. The story of how arson investi-
gations went from settled “science” that
all investigators agreed on to what
amounts to junk science is a riveting
story, well told by Humes.
The book itself mostly focuses on the
attempt of the Innocence Project to
litigate this in the 1989 case; that
litigation continues. The book reads like
a thriller. When I was describing the
book when I was halfway through it,
people asked me what happened. Did
the defendant get relief? I replied that I
hadn’t skipped to the end or looked it
up on the Internet, I loved the thriller
read.
Some folks asked me why we didn’t get
defense arson experts appointed. We
did, but remember that all the arson
investigators, active or retired and
available to be appointed for us, agreed
on the received wisdom. For a long time
(certainly in 1989) there was no expert
who would testify that this was junk
science.
There has been a flood of information
about what was presented as scientific
evidence but turns out to be junk
science. This included fingerprints and
true nonsense such as bite-mark
evidence. But I hadn’t heard about the
arson junk science until this book.
I highly recommend this fabulous book.
Humes is a great writer, and the story
he tells is compelling and gripping. My
takeaway is that we just have to be
more skeptical about the party line.
Even though we routinely challenge the
police and prosecutor narrative, we’re
not challenging that narrative sufficiently
when it comes to science.
 Book Reviews Department

The Trial of Lizzie Borden

By Cara Robertson

$28.00
375 pages
2019
Simon & Schuster

Before I read this book, here’s what I
knew about Lizzie Borden. The nursery
rhyme, Lizzie gave her mother 40
whacks with an ax, and her father 41.
And she was acquitted. Oh, and the
1975 movie starring Elizabeth Mont-
gomery, which presented Lizzie as
guilty.
Cara Robertson is a lawyer who clerked
for the Supreme Court. She collected
the trial transcripts and many contem-
poraneous media reports; this was the
case of the 19th century. She has
written a riveting and compelling nonfic-
tion account of this trial, held in Massa-
chusetts in 1892.
What’s the bottom line? Robertson
takes no position on whether Lizzie
actually committed the murders. But it’s
clear to me that the not guilty verdicts
were completely justified. There was
simply no evidence of guilt. The prose-
cution had no motive, no
murder weapon, no confes-
sion, no physical evidence,
no blood on Lizzie or her
clothes.
house at the time. Weirdly, Lizzie’s ple, Lizzie’s demeanor. The tactics and
stepmother (not her mother, as the actions of all the lawyers are presented
rhyme recites) was axed to death 90 in some detail, presenting a fascinating
minutes before her father. The house- insight into the trial dynamics.
keeper and Lizzie were in the house
during that time. So obviously it had to This nonfiction account reads like a
be Lizzie. With, again, no actual lawyer thriller novel, though, of course,
evidence. One could make the case that we know the result. Robertson has
the housekeeper was the murderer; sketches and even photographs of the
there is precisely the same amount of various characters and locations, which
evidence against her. Namely, none. brings the action alive. I highly recom-
There are many strange procedural mend this excellent book.
aspects to the trial: for example, three
judges presided. There were no women
on the jury. Women were permitted on
juries in Massachusetts only in 1950.
Robertson is able to use media coverage
to describe actions in the courtroom
not reflected in the transcript: for exam-

When the crime came to

light, the police literally
rounded up all the usual
suspects; foreigners
(like, you know,
Irishmen) and crimi-
nals. None did it.
Then they looked at
who was in the

Photo Adobe Stock © Africa Studio

2019 39
Department Kestenbaum Korner
BY DAVID S. KESTENBAUM
O
ne of my favorite
records to listen to in
college was Firesign
Theater. Now before I
continue, the “record” I
am referring to is actual-
ly an LP with music or comedy on it,
not the notes from a court proceeding.
One of the best lines was “How can
you be in 2 places at once, when you’re
not anywhere at all!” As a private crimi-
nal defense attorney, we are often
ordered to be in several courts each
morning. My typical day will include
appearances in Ventura County Court-
house, Van Nuys Superior Court, and
perhaps the LAX courthouse. While all
Judges feel that they are the most
important (I won’t get into the Federal
Judges’ feeling of omnipotence) and
therefore order you to appear in their
courtroom first (even though they
40 2019
typically don’t take the bench until
9:30…), solo practitioners just can’t
clone themselves to get everything
covered each day.
While we are technically in competition
with each other for the cases out there,
I have always felt there are enough
people being arrested to go around! In
fact, we all need to help each other out
in that regard by agreeing to make
“appearances” for each other. Until
they install Skype in every courtroom,
someone has to be there. Some courts
allow “Court call” but those are mostly
civil courtrooms. Since my office is next
to the Van Nuys courthouse, I tend to
get a lot of calls from my fellow
warriors to walk over and make an
appearance for them. I have no prob-
lem doing that as long as there is some
reciprocity by covering a case for me.
Over the years, I have compiled a list
of “no fly” lawyers who I have helped
out, but when I ask them for a recipro-
cal favor, they are usually “on
vacation” or they are “too busy!” Then
they can do their own work; we are
part of a giant law firm battling against
the Government at each step. Helping
each other out is the best way to
somewhat level the playing field.
In that regard, at our DUI Rules of the
Road Seminar held in Palm Springs
each Fall, one of our sponsors is
“Attorneys in Motion” who help you
be in 2 places at once! Not only are
they there to help those of us who
need appearance lawyers, but also
talking to some of the younger lawyers
about supplementing their income by
making court appearances for busy
lawyers. This is one of cooperative

Making Connections
ways that we can help our “Law Firm”
be the largest in the state! In fact, as I
sit in my office in Van Nuys, I am able
to tell my client in Arizona that his DUI
in San Bernardino was just DISMISSED
and I never appeared! I did do the
Department Kestenbaum Korner
Photo Shutter Stock © Alexander Kirch
By the way, kudos to the Seminar
Committee for some of the best DAVID S. KESTENBAUM
“hands on” DUI seminar in recent 
years. The speakers provided Motions 
and case law on how to successfully 
handle DMV hearings (AKA banging 

negotiating over the phone with the your head against the wall!), the result- 


 
DA and provided enough documenta- ing writs and the funniest presentation 


tion of the problems with the case, that
my colleague just got it DISMISSED!
We need to put aside our egos and do

what is best for the client. While I
could make an appearance, they don’t
 ­

on how to defend a DUI Marijuana 
case! In Palm Springs I was lucky 
enough to meet another desert lawyer, 
Ethan, who is going to help me with a
 
Prop 47 Reduction to Misdemeanor 

know me or my reputation in San and PC 1203.4 Petition out there.
   
 
Bernardino. But they do know my Another helped me by putting over an   € 
colleague, whose office is near that arraignment in Indio to a Monday so   ‚
ƒ
court, so he is like I am in Van Nuys, that my wife and I get to enjoy a week-    

 
and you need to try to become; end at the Two Bunch Palms Spa/Hot     
connected! Springs! You never know who you will  

„ 


meet at a CACJ Seminar, or how these
­ …
So making connections is just one connections will help you!
reason for attending CACJ seminars.

2019 41
Citations California Bail Reform
  
‡ ‡
§¨ª­
­„ 
 

 

 „‡ª€½€¶„ ®·
ª‡‡»§€¨§±¨
 ­€­‚ƒ €„…†ƒ‡ˆ 

€€ƒ
ƒ ‡
§¨
‰ € Š‹ŒŽ‘ ’“”Ž‹•–—‹˜™Ž€€‚ ª¾€

€„‚‡
 Š‹šŠŠ‘›Š‘ŠŠ‹œžŽ‹š—‘ŠŸ™™ŽŒŽ”Ÿ¡Š’‡¢‡ 

€Š™£¡Ÿ‘‹£ŠššŸ‘‹Ž“”¡Ÿ‘‘£¤£‹Š™¥—”š£¦Ž§¥¨ 
¼ –´­ª
­´ª

–€–ŽŠš©Ž‹Š™š“Ÿ¦—”‡¢‡ 
­­­­‚€ ­´­³€

­€ 
¤Ž‘£¦Š‹¦ŠœŽ¤“Ÿ¡Ÿ‘Ž‹”£¦ ¦£Ž‹¦Ž”§ ¨¢  ­‚ƒ‚ªª ‡ ´¢‡ 
´Ä 
€ª­€ ª§ ¨‡­„€  
 Ä Š‹šŠŠ‘›Š‘ŠŠ’“Ž‘¢ŠŒŠ«£‹Ž´
€­ Š‹šŠŠ‘›Š‘ŠŠ’“Ž‘¢ŠŒŠ«£‹Ž‡ §– 
¨‡
±´
¹
Å
´²²‚³‡
¬ª®­ƒ¯ ‡ ²_
²…²
€
°‚‚‡©¢‡ 
‡

 ­€ª­ ª
 Ž‹Š™ŸœŽ§
±‡±…‡ ª€­­
 ´€ª­ƒ
€‚
ªª¶ª­€ƒ·¬
±  ­­€­­€ ­
€ª ²²­ „­€­€‡§Š™£¡Ÿ‘‹£ŠŸ‹”š£š—š£Ÿ‹´­´
­‡
²­€_­_- 
‡¨
_­_‚_³_ _€ª _§¨´§µ´ 
¶­­‡·¨ 
» €­­ƒ„­„€ ª­
€
 
§
»¹¨†±­‡…
´‚­€ ª ª
… ¢
  „´´¸¹…´±±
‡…º­ª­ƒ• €­ª­
ƒª €
ª­‡
ªƒ´‡´¸………´…¹†‡»»º¬
­ª´ §‡…

‡¨ª‚­ª
¸…
´

¼‡±¼º³ª ƒ´¸±»…´¼±
‡¹¼ºˆ­
‡´ ‚ª­„¶
­ ­
¸±±´†‡¹º  ªƒ ƒ´¸

´±†‡±
ठଠ
­­ƒ€ª‡‡‡·§‡¨

† 
§„‚
¢ƒ…´
»´ …»´­‚ª 
¹  
†­‡‡…¼¼§±¨´
‡

¹†
¼¨‡
 ±»­‡…»†»´»…»†§¼¨º­„‡‚±±
¼ ­
„ª´­ª­½„ ­‡‡±
´±§
¹¹
¨º­­€¹­…

±±´

…‡…§
¹¹†¨
€ 
´ € ­¾ªƒ ‡¢ ­ ¶ª…„ „»´­
‚­­„€


„ƒ ­„… „­
ª­­
­­ªƒ‡¿­­
 „€»‡§­‡‡´‡´§
´ª‡§¨º
‚ªƒ ´ €­ª
ªª  §
¹»¨±­‡±±¼´††´
»¼­‡‡±´¼†
‡…º
ƒ ‡  §
¹¹
¨±±­‡‡±
´±´»…­‡‡¼¹­
 ‡ ·
 
 ‡±‡

Š™£¡Ÿ‘‹£ŠŸ‹”š£š—š£Ÿ‹‡´ ‡
§¨¶­ƒ½„­„

» §„‚
¢ƒ±´
»´ …»
†´­‚ª €„­´€­ƒ¬ª­ª­½

†
»¨‡ª‰­­€ ‰­ ´‚€„ª 
ª‰
 ª€­€€¥º ‰­‚ ª­„
„ª­­³­

¥ ª€‚‰­
´
»‡ Ɓ­‚ª­ª­
­ƒ ‡·§ ƒ
‡
¹¹…´‡‡¹†§‡‡‡±¨§‡
»¹´„„‡»´
¹¹…¨‡¨
¹ Ž‹Š™ŸœŽ§
¼¹§¨ŸÀŽ‘‹¤Ž‹šŸœŽ§±
‡­ª­
Áª ƒªƒ´€´½€ ªƒ  

„‚´
´„‚
¢ƒ…´
»´
ªƒ‡ …»º­‚ª
¹†
¼‡


 ¾ª
§ 
¨­­­‚ª
‚ ± ­‚ ´½„
´
¹´‰­
 ª¶‚„€
†‚ ‚­­ ­‚­
­´­ª
­´­ƒ
­ªÂ€€€€­­‚
 ªª‚Ž‹Š™ŸœŽ 
±‡¼‡ ´‚
‡†
´€½­­‡‡‡·Ž‹Š™ŸœŽ§»
†§¨‡   
‚Ž‹Š™ŸœŽ 
±‡ª

±‡±±‚
 ½„ ­‡


Ž‹Š™ŸœŽ§
¹»‡€
ƒÁª

­­ƒ­­
‚€ª‡
 … Ž‹Š™ŸœŽ§
±‡±‡
ªƒª­‚ ‚ƒÁª­‰
ª ‡ªª­­ƒ³ª­€‚³‡ †  †€ 
´ª‰‡
큁­ ª
§ ƒ„¸†´¨  ­
­‚‚ª­­ª­ ¬­‡ ¼ Ž‹Š™ŸœŽ§
±‡§€¨¶®­³ ®  
ªƒ­  „‚ª€„­³

 Ž‹Š™ŸœŽ§»
†‡  ­´
„€ ª³€®
€­ªªÁª³ª­€ƒª

± ­ªƒ´­ª
­

€­
´   €‚ ­½€­€

ª­ ƒ­‚
ª­´´Š™£¡Ÿ‘‹£Š ¾ª€ª ­½‡·
‹”—‘Š‹¦ŽŸœŽ§§
»ª

»±Š™£¡Ÿ‘‹£ŠŸœŽŸ¡ŽŒ—™Š
š£Ÿ‹”­
´§†±ª
§
†‡
¹   „ ­
´–´¶‚ƒ§¨‡·


… Ž‹Š™ŸœŽ§
‡†‡ »  ´‡
‡´ª­´  „€
… ´

…ˆŠ‘ÀŠ‘œŠ’ŽÀ£Ž’
…¹§
¨‡

† Ž‹Š™ŸœŽ§
‡­€ª
ª

42 2019

¹ ‚ƒ¶½·„­ª €
‡
± Á
 ª­ª€½ ­­ƒ
‰¶
ª ­‡·ˆ‚„´€­€
´ ³

´´
´­
ª¾ª‰€€ €€
„ª­¶„‚­ƒ ­ƒ€­­‡·­´
†ƒ‡´±»ћŠ‹
š—œ£Ž”´»¹¹´¹
Citations California Bail Reform

† ª­ªª€­­¾ª
 €
 ³
 ‚‡ 
­ ­€
€¾ª
 ³

ª¾„ 
‚¾ª
´
 €­­‡


§
¨ †
„‚€ª´´ ¢ƒ´¶ 
§

­­­ƒ ª­„€ª¨º ‰´·
NJ™ŽŠ’¥Ÿ—‘‹Š™…¹´†
…§
»¨ª
´­´
­°´ˆ‰ˆ Š‹
  ‡
‹ ˆ‹´ƒ§¥ª­ƒ¹´
¹¨²²‚‚‚‡ƒ­‡ ² 
„²
¹²²ª ‚­¾ª  
­ ƒ ²†¹…¹¼²‡ † 
‚­­´
¹»…§
¹…¹¨‡

±
 ´‡
‡´¥½­´ „‹Œ‰  †± ­ªˆª¬­ƒ´‘ŠÀŽŽ’¿Ÿ‘™œ§
¹±
¨‡
 ‰‹´
¹»¿£”‡‡ŽÀ‡……
´……
§
¹»¨‡ 
†…  „ ­
´´¶‚ƒ·§¨‡
± 
´†¼Ç ‡±¹´…§
¹¹±¨§Æ´¥‡´ª
¨ 
§¶ªƒ

€‰ ­­´ ­­ ††  ‚ ´†¹Ç ‡†¹§
¹¹±¨‡
ªª½ª­­­
„
 
‡Ä‡‡ƒ­ ‚  †¼ 
Ž‰ ‰´††­‡…
ª‚ª­ €ª­‚ …§
¨‡
ƒ ª ª€„‚€¾ª
  
€€­ª‡¨ †  
­ ­‚„€‡´‡
€
­€ª‚­ ‚€ª­­
±± ‚
´……Ç ‡±
¹§
¹¼¨‡ 
‡

±… ‡±……‡ †»  „´­€ ª ª
„‚
ª­ƒ€ª

­ 
­€­€
±† Ž´…»
Ç ‡±¹´†§
¹»¨‡ „„ª ƒ³€
  
€­‡ ´
§„‚
±¼ Ž‹Š™ŸœŽ§
±‡
¹‡
¢ƒ…´
»´ …»´­‚ª
¹†
¼¨º
§„‚
¢ƒ±´
»´ …»
†´­‚ª
± ‰ƒ‚ ´†Ç ‡……´†±§
¹¹
¨‡ 
†
»¨‡ª´´Áª‰
€ªª
 ½€ 
‡
±» ´±±­‡±
»¹´
¹±§
¹»¨º­´´
†­‡±
¹
´¹±Ź±»§
¹¼¨‡ †¹ ­ 
±‡
§¨§†¨„ ´¶­­­‡
 ‡‡€½‚
ƒ€„

±¹ ­´©ŽŽœ£™“´ž§
»¹…¨‡ ª¯ª€­­ª
ƒ €´€
½€„
ª¯ª€­­ª
‚¾ªƒ
…  ±¼ƒªƒ ‡ˆ°
‚ª­Áª„­€³ ´€½€„
‚­­­­„­€‡
 ­‡­­‚
¥ª´
¹‡ „‡·

…
®ª­€„ ­
ƒ§ ¨´ ¼ ˆ„
ª¶‚³ª·­­ 

ª 
‡ „
 ‘‰‡  ª´‚„´„ªÁª‡­‚„
‚§  
¼¨‡ ­ƒ­‚ƒ§  ‚¹­
¹‚„¨ƒ„´
­ƒ 

… ­ª­‡ š‘Ž‹Œš©Ž‹£‹ŒŸ‘Ž‹”£¦ ¦£Ž‹¦Ž£‹š©Ž ­­€ 
„ ƒ‚ƒ­­
 ƒ„‡
Ë£šŽœ šŠšŽ”Šš©Ÿ‘’Š‘œ‡­ ‡¿
 
–‡§¹¨
»‡ ¼
 ´‡
‡´­ 
±‡
´‚„´ ª
 „€ 
„€ ª
ª 
º­´
…± Ž‹Š™ŸœŽ§
±‡¹§¨§¨‡
±‡
»§¨§†¨§¨§
¨
±‡§¨‡

…… Ž‹Š™ŸœŽ§
±‡
§¨§±¨§
±¨‡ ¼  ´‡
‡´ƒ¿­­ ´’“ 
 Š
 
 ”‚€•ƒ‚§
¨¼‡
…† Ž‹Š™ŸœŽ§
±‡¹§¨§±¨‡ 
¼± ¬–€‚²²‚‚‚‡¬€‡
²­
…¼  ‚ ´†¹Ç ‡†¹§
¹¹±¨‡ €²‡
 
… 
Ž‰ ‰´††­‡…… ¼… ƒ‡´¥‡ ´•¢‚È­ ´¶‹‚ ‰
§
¨‡ †„
 
‰·»™›Š‹“™Š’
 ŽÀ£Ž’

†§
†¨‚ƒ
‰‰
…» ˆª ´ ´´°°´¶ ‰  €¬ƒª ³´‚­ ƒ
 ·
»—”š‘Š™Š”¥ٚ‘Š”Ÿ—‹œ¢Žœ‡¼¼¹§
†¨‡ ‰´­ ƒ‰‚ª­
  ‡ ­
­
ª €„
…¹  ´´´ª´­´ Áª€¶­·€ƒ € 
¥ 
­´­´ª¢¢­
´ ‰ ´¢ƒª„ª´ª­ˆ´‹
”‰
‰
‰  „‰ …   ´
±ˆ„‡‡‡»
¹§
¹¨‡
 ´†‘£š£¦Š™ٚ‘Š”Ÿ—‹œ¥Ÿ—‘‹Š™§ ª­
¨ §
±¨‡

2019 43
California Attorneys for Criminal Justice
Fighting for justice since 1973


Join Us