The following additional claims are among the more common that may be found to invalidate convictions predicated on pleas of guilty.  There are many more, whose nature and number is limited only by the imagination of counsel.

 

POST CON RELIEF " GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL " FAILURE TO ADVISE OR DEFEND IF BASED ON MISTAKEN BELIEF IN LEGAL CONCLUSION THAT DEFENDANT WAS A U.S. CITIZEN
Hinton v. Alabama, ___ U.S. ___, 134 S.Ct. 1081, 1089, 188 L.Ed.2d 1 (Feb. 24, 2014) (per curiam) (An attorney's ignorance of a point of law that is fundamental to his case combined with his failure to perform basic research on that point is a quintessential example of unreasonable performance under Strickland.). In Hinton v. Alabama, ___ U.S. ___, 134 S.Ct. 1081, 1085, 188 L.Ed.2d 1 (Feb. 24, 2014) (per curiam), the Supreme Court held counsel was ineffective for failing to seek funds to hire an expert where that failure was based on a mistaken belief that available funding was capped at $1,000. The attorney failed to do so because he was himself unaware that Alabama law no longer imposed a specific limit and instead allowed reimbursement for any expenses reasonably incurred. This decision may provide authority for a broader rule that counsel renders ineffective assistance where the failure to take necessary action occurred because of counsels mistaken belief concerning a matter of law. This can provide authority for a claim based on defense counsels failure to investigate the defendants immigration status, which led to counsels failure to investigate the immigration consequences of a plea, failure to advise the defendant concerning them, and failure to defend the client against them. The court held: The first prong"constitutional deficiency"is necessarily linked to the practice and expectations of the legal community: The proper measure of attorney performance remains simply reasonableness under prevailing professional norms. Padilla, supra, at 366, 130 S.Ct. 1473 (quoting Strickland, supra, at 688, 104 S.Ct. 2052). In any case presenting an ineffectiveness claim, the performance inquiry must be whether counsel's assistance was reasonable considering all the circumstances. Strickland, supra, at 688, 104 S.Ct. 2052 Under that standard, it was unreasonable for Hinton's lawyer to fail to seek additional funds to hire an expert where that failure was based not on any strategic choice but on a mistaken belief that available funding was capped at $1,000. (Id. at 1088.) The court continued: An attorney's ignorance of a point of law that is fundamental to his case combined with his failure to perform basic research on that point is a quintessential example of unreasonable performance under Strickland. See, e.g., Williams v. Taylor, 529 U.S. 362, 395, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) (finding deficient performance where counsel failed to conduct an investigation that would have uncovered extensive records [that could be used for death penalty mitigation purposes], not because of any strategic calculation but because they incorrectly thought that state law barred access to such records); Kimmelman v. Morrison, 477 U.S. 365, 385, 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986) (finding deficient performance where counsel failed to conduct pretrial discovery and that failure was not based on strategy, but on counsel's mistaken belie[f] that the State was obliged to take the initiative and turn over all of its inculpatory evidence to the defense). (Id. at 1089.)

POST CON RELIEF " GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL " FAILURE TO SEEK FUNDS FOR EXPERT " ERROR BASED ON COUNSELS MISTAKEN BELIEF IN IMPORTANT POINT OF LAW AND FAILURE TO RESEARCH IT
Hinton v. Alabama, ___ U.S. ___, 134 S.Ct. 1081, 188 L.Ed.2d 1 (Feb. 24, 2014) (per curiam)(counsel was ineffective for failing to seek funds to hire an expert where that failure was based on a mistaken belief that available funding was capped at $1,000).

POST CON RELIEF " GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL " FAILURE TO ADVISE OR DEFEND IF BASED ON MISTAKEN BELIEF IN LEGAL CONCLUSION THAT DEFENDANT WAS A U.S. CITIZEN
Hinton v. Alabama, ___ U.S. ___, 134 S.Ct. 1081, 1089, 188 L.Ed.2d 1 (Feb. 24, 2014) (per curiam) (An attorney's ignorance of a point of law that is fundamental to his case combined with his failure to perform basic research on that point is a quintessential example of unreasonable performance under Strickland.). In Hinton v. Alabama, ___ U.S. ___, 134 S.Ct. 1081, 1085, 188 L.Ed.2d 1 (Feb. 24, 2014) (per curiam), the Supreme Court held counsel was ineffective for failing to seek funds to hire an expert where that failure was based on a mistaken belief that available funding was capped at $1,000. The attorney failed to do so because he was himself unaware that Alabama law no longer imposed a specific limit and instead allowed reimbursement for any expenses reasonably incurred. This decision may provide authority for a broader rule that counsel renders ineffective assistance where the failure to take necessary action occurred because of counsels mistaken belief concerning a matter of law. This can provide authority for a claim based on defense counsels failure to investigate the defendants immigration status, which led to counsels failure to investigate the immigration consequences of a plea, failure to advise the defendant concerning them, and failure to defend the client against them. The court held: The first prong"constitutional deficiency"is necessarily linked to the practice and expectations of the legal community: The proper measure of attorney performance remains simply reasonableness under prevailing professional norms. Padilla, supra, at 366, 130 S.Ct. 1473 (quoting Strickland, supra, at 688, 104 S.Ct. 2052). In any case presenting an ineffectiveness claim, the performance inquiry must be whether counsel's assistance was reasonable considering all the circumstances. Strickland, supra, at 688, 104 S.Ct. 2052 Under that standard, it was unreasonable for Hinton's lawyer to fail to seek additional funds to hire an expert where that failure was based not on any strategic choice but on a mistaken belief that available funding was capped at $1,000. (Id. at 1088.) The court continued: An attorney's ignorance of a point of law that is fundamental to his case combined with his failure to perform basic research on that point is a quintessential example of unreasonable performance under Strickland. See, e.g., Williams v. Taylor, 529 U.S. 362, 395, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) (finding deficient performance where counsel failed to conduct an investigation that would have uncovered extensive records [that could be used for death penalty mitigation purposes], not because of any strategic calculation but because they incorrectly thought that state law barred access to such records); Kimmelman v. Morrison, 477 U.S. 365, 385, 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986) (finding deficient performance where counsel failed to conduct pretrial discovery and that failure was not based on strategy, but on counsel's mistaken belie[f] that the State was obliged to take the initiative and turn over all of its inculpatory evidence to the defense). (Id. at 1089.)

POST CON RELIEF " GROUNDS " INSUFFICIENCY OF EVIDENCE
Cavazos v. Smith, ___ U.S. ___ , 132 S.Ct. 2 (Oct. 31, 2011) (No. 10-1115) (per curiam) (The opinion of the Court in Jackson v. Virginia, 443 U. S. 307 (1979), makes clear that it is the responsibility of the jury--not the court--to decide what conclusions should be drawn from evidence admitted at trial. A reviewing court may set aside the jury's verdict on the ground of insufficient evidence only if no rational trier of fact could have agreed with the jury. What is more, a federal court may not overturn a state court decision rejecting a sufficiency of the evidence challenge simply because the federal court disagrees with the state court. The federal court instead may do so only if the state court decision was "objectively unreasonable."); citing Renico v. Lett, 559 U. S. ___, ___ (2010) (slip op., at 5) (internal quotation marks omitted).

POST-CON " GROUNDS " EVIDENCE " ADMISSIBILITY
Bullcoming v. New Mexico, ___ U.S. ___, 131 S.Ct. 2705 (Jun. 23, 2011) (Confrontation Clause does not permit the prosecution to introduce a forensic laboratory report containing a testimonial certification, made in order to prove a fact at a criminal trial, through the in-court testimony of an analyst who did not sign the certification or personally perform or observe the performance of the test reported in the certification; the only person who could be put on the stand to testify about a forensic lab report is the analyst who made the certification; the only exception is if the analyst is unavailable at trial, and the defense had an opportunity, pretrial, to cross-examine that particular analyst).

POST CON RELIEF " GROUNDS " FEDERAL LAW PREVENTS USE OF I-9 FORMS IN STATE CRIMINAL PROSECUTIONS
Chamber of Commerce of U.S. v. Whiting, ___ U.S. ___, 131 S.Ct. 1968, 2011 WL 2039365 (May 26, 2011) (8 U.S.C. 1324(b)(5) bars the use of the Form I-9 and its attachments in a state criminal proceeding).

GROUNDS -- MULTIPLE CONVICTIONS FORBIDDEN WHERE MANY CHECKS VICTIMIZED ONLY THREE VICTIMS
People v. Otubuah(2010) ___ Cal.Rptr.3d ___, 2010 WL 1896419 (convictions on 24 of the 27 counts of forgery for possessing completed checks with intent to defraud are reversed as the checks were from three issuers and defendant violated the financial autonomy of only three victims, committing forgery only once for each victim).

POST CON RELIEF " GROUNDS " READABILITY
Sixth District published In re E.O. (2010) 188 Cal.App.4th 1149 (probation condition restricting the minor's freedom to approach or enter a courthouse was unconstitutionally vague.) In making its point, the court stressed the need for precise and comprehensible probation conditions - especially in juvenile cases. The court analyzed the text of the probation condition in question using an "online readability tester" which showed it would take over 28 years of education to comprehend the condition as written. (Id. at p. 1157.) Courts rule that the defendant was advised of a right, orally or in a prepared form, and that he/she thereafter acknowledged the right and waived it. But in many cases, these advisements are prepared using complicated text that an average person, much less a criminal defendant in a time of high anxiety, would find difficult to comprehend. Readability tests are designed to measure comprehension difficulty when reading a passage of contemporary English. One test, the Flesch-Kinkaid Grade Level test, indicates the number of years of education a person needs to be able to understand the text easily, after the first reading. The fairly recent CALCRIM jury instructions were a product of a task force appointed by Chief Justice George after a study revealed that jurors could not understand and therefore properly apply the earlier standard instructions as written. Now Supreme Justice Corrigan in her Preface to CALCRIM acknowledged the earlier instructions were "impenetrable" and a product of statutes and case law written by and for a specialized legal audience and expressed in terms of art that have evolved over several centuries. She emphasized that jurors must be able to understand the instructions they are asked to follow, and the instructions should be drafted in a way that takes the audience into account. The same is certainly true of legal advisements given to criminal defendants, and yet in many cases, the text is almost incomprehensible to regular people charged with crimes. For example, the Penal Code section 1016.5 advisal given before a guilty plea explains the immigration consequences of the conviction in text the Flesh Kinkaid readability study shows would require over 23 years of education - the equivalent of a graduate degree. Very few people advised of that right before pleading guilty probably understood it but it is routinely used against defendants seeking to withdraw pleas based on a claim that they were unaware of the consequences. The Lopez waiver form used in many courts to advise potential pro per defendants of the dangers of self-representation requires almost 13 years of education according to the Flesch-Kinkaid test. The Penal Code section 977 waiver of presence advisement requires over 28 years of education to understand a form that simply needs to say "I don't need to be present for these proceedings." Compare this with the standard Miranda advisement which requires only a 6th grade education and was suggested by a court that was genuinely concerned that the suspect understand the warning. Our clients' cognitive levels can be easily tested by a psychologist, and the results of this testing can be measured against the readability studies to show they did not understand a particular advisement. Counsel should be on the lookout for opportunities to make use of the readability studies as the court did in In re E.O. Thanks to Pat Ford.

Lower Courts of Fourth Circuit

GROUNDS " MULTIPLE CONVICTIONS " PROHIBITION AGAINST BEING CONVICTED OF RECEIVING STOLEN PROPERTY WITH CONVICTION OF THEFT OF THE SAME PROPERTY
People v. Ferrer, 184 Cal.App.4th 873, 108 Cal.Rptr.3d 908 (May 14, 2010)(reversing trial courts order dismissing criminal charges, because Penal Code 1050 and 1050.5 prohibit the dismissal of an action due to the absence of good cause for a continuance or for the prosecutor's failure to provide proper notice of a request for a continuance; and 2) although the trial court did not dismiss this action as an express sanction for a failure to show good cause, dismissal was the reasonably foreseeable result of denial of the motion to continue).

GROUNDS -- MULTIPLE CONVICTIONS FORBIDDEN WHERE MANY CHECKS VICTIMIZED ONLY THREE VICTIMS
People v. Otubuah, 184 Cal.App.4th 422, 2010 WL 1367449 (May 12, 2010)( (convictions on 24 of the 27 counts of forgery for possessing completed checks with intent to defraud are reversed as the checks were from three issuers and defendant violated the financial autonomy of only three victims, committing forgery only once for each victim; since possession of the checks violated the autonomy of the three issuers, as the means toward fraud, the three convictions are appropriate).

Lower Courts of Eighth Circuit

CAL POST CON " GROUNDS " VALIDITY OF STATUTE " FEDERAL PREEMPTION PRECLUDES STATE FROM PROSECUTING JOB APPLICANT FOR PERJURY OR FORGERY INVOLVING I-9 FEDERAL FORM FOR EMPLOYMENT ELIGIBILITY VERIFICATION
State v. Reynua, ___ Minn. App. ___ (Ct.App. Dec. 5, 2011) (Immigration Reform and Control Act, INA 274A, 8 U.S.C. 1324a (2006), preempts state prosecution of a job applicant for perjury or forgery involving the I-9 federal form for employment-eligibility verification). PCN:6.51;CPCR: 7.51

Ninth Circuit

POST CON " GROUNDS " PROSECUTORS MISSTATEMENT OF FACTS
United States v. Mageno, __ F.3d __ (9th Cir. Aug. 11, 2014) (prosecutors misstatements of facts during closing arguments encouraged jury to convict based on evidence not presented at trial).

POST CON RELIEF " GROUNDS " RIGHT TO PRESENCE " BATSON HEARING
Ayala v. Wong, ___ F.3d ___, 2014 WL 707162 (9th Cir. Feb. 25, 2014) (amending and superseding earlier opinion on denial of rehearing en banc) (reversing district courts denial of a habeas corpus petition challenging petitioner's conviction and capital sentence for murder and robbery, based on a violation of Batson v. Kentucky, 476 U.S. 79 (1986), where the exclusion of petitioner and his counsel from the ex parte Batson proceedings constituted prejudicial error that likely prevented petitioner from showing that the prosecution utilized its peremptory challenges in a racially discriminatory manner).

POST CON RELIEF " GROUNDS " RIGHT TO PRESENCE " BATSON HEARING
Ayala v. Wong, ___ F.3d ___, 2014 WL 707162 (9th Cir. Feb. 25, 2014) (amending and superseding earlier opinion on denial of rehearing en banc) (reversing district courts denial of a habeas corpus petition challenging petitioner's conviction and capital sentence for murder and robbery, based on a violation of Batson v. Kentucky, 476 U.S. 79 (1986), where the exclusion of petitioner and his counsel from the ex parte Batson proceedings constituted prejudicial error that likely prevented petitioner from showing that the prosecution utilized its peremptory challenges in a racially discriminatory manner).

POST CON RELIEF " REASON TO BELIEVE
Chavez-Reyes v. Holder, 741 F.3d 1 (9th Cir. Jan. 27, 2014) (denying petition for review from BIA decision finding petitioner inadmissible because there was reason to believe that he engaged in or assisted others in illicit trafficking in a controlled substance, under INA 212(a)(2)(C)(i), 8 U.S.C. 1182(a)(2)(C)(i), based on circumstantial evidence and on his guilty plea to possession of cocaine with intent to distribute, where the BIA did not violate petitioner's due process rights by considering his guilty plea, even though the court overturned the criminal conviction on appeal, because the court overturned the conviction solely because the police officers lacked reasonable suspicion to conduct the traffic stop, a reason unrelated to the voluntariness of the guilty plea). Note: Counsel can do a better job of establishing the connection between the Fourth Amendment violation and the voluntariness of the plea. The plea was involuntary because defense counsel rendered ineffective assistance in failing to suppress the evidence, and in failing to inform the defendant of the inadmissibility of the evidence, so the plea was based on misinformation concerning the admissibility of the evidence against the defendant.

POST CON RELIEF " FEDERAL " DOUBLE JEOPARDY VIOLATION AFTER VACATUR
United States v. Alvarez-Moreno, 657 F.3d 869 (9th Cir. Sept. 13, 2011) (reversing an order of the district court setting aside a conviction and ordering a new trial to cure a structural defect, under Federal Rules of Criminal Procedure, Rules 33 and 26.3, where the court's order constituted a colorable double jeopardy violation).

POST CON RELIEF " VEHICLES " HABEAS " FEDERAL " STATUTE OF LIMITATIONS " ACTUAL INNOCENCE EXCEPTION
Lee v. Lampert, 653 F.3d 929 (9th Cir. Aug. 2, 2011) (while believable proof of actual innocence excuses noncompliance with the statute of limitations governing 28 U.S.C. 2241 petitions, a greater showing of sufficient evidence of actual innocence is required to allow review of his constitutional claims on the merits).

POST CON RELIEF " GROUNDS " INSUFFICIENT EVIDENCE
United States v. Bagdasarian, ___ F.3d ___, 2011 WL 2803583 (9th Cir. Jul.19, 2011) (reversing conviction for threatening to kill and inflict bodily harm upon then-presidential candidate Barack Obama, 18 U.S.C. 879(a)(3), the threats in context failed to constitute sufficient evidence to establish beyond a reasonable doubt that defendant had the subjective intent to threaten a presidential candidate).

POST CON RELIEF " GROUNDS " MENTAL COMPETENCY
United States v. Duncan, 643 F.3d 1242 (9th Cir. Jul. 11, 2011) (district court erred in failing to hold a competency hearing prior to allowing the defendant to exercise his right to represent himself during his penalty phase hearing).

GROUNDS " DOUBLE JEOPARDY " DOUBLE JEOPARDY PROHIBITS MULTIPLE CONVICTIONS BASED ON THE SAME UNDERLYING CONDUCT
United States v. Lynn, 636 F.3d 1127 (9th Cir. Feb. 23, 2011)(No. 09-10242)(convictions for both receiving and possessing child pornography are affirmed in part and vacated in part, where they violated the Fifth Amendment prohibition against double jeopardy, since both counts were based on the same underlying conduct).

GROUNDS " DOUBLE JEOPARDY " DOUBLE JEOPARDY PROHIBITS MULTIPLE CONVICTIONS BASED ON THE SAME UNDERLYING CONDUCT
United States v. Lynn, ___ F.3d ___ (9th Cir. Feb. ___, 2011)(No. 09-10242)(convictions for both receiving and possessing child pornography are affirmed in part and vacated in part, where they violated the Fifth Amendment prohibition against double jeopardy, since both counts were based on the same underlying conduct).

POST CON RELIEF " FEDERAL " GROUNDS " INSUFFICIENT EVIDENCE
Smith v. Mitchell, 624 F.3d 1235 (9th Cir. Oct. 29, 2010) (habeas corpus granted, for insufficient evidence, where no rational trier of fact could have found beyond a reasonable doubt that petitioner caused the child's death, and the state court's affirmance of the conviction was an unreasonable application of Jackson v. Virginia, 443 U.S. 307 (1979)).

POST CON " GROUNDS " INSUFFICIENT EVIDENCE " STANDARD OF REVIEW ON HABEAS CORPUS
Briceno v. Scribner, 555 F.3d 1069, 2009 WL 426303 (9th Cir. February 23, 2009)("To prevail on an insufficiency of evidence claim, a habeas petitioner must show that upon the record evidence adduced at the trial[,] no rational trier of fact could have found proof of guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 324, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). An additional layer of deference is added to this standard by 28 U.S.C. 2254(d), which obliges Briceno to demonstrate that the state court's adjudication entailed an unreasonable application of the quoted Jackson standard."), citing See Juan H. v. Allen, 408 F.3d 1262, 1274 (9th Cir. 2005).

Lower Courts of Ninth Circuit

CAL POST CON " GROUNDS " SINGLE OFFENSE CAN RESULT IN ONLY ONE CONVICTION
People v. Rader, ___ Cal.App.4th ___, ___, 2014 WL 3615811 (2d Dist. Jul. 23, 2014) (defendant may not be convicted of both counts 2 and 3 for the same petty theft on a single occasion from a restaurant, for using two counterfeit bills at the same time, since both counts involve a single offense"the petty theft from the restaurant: When a single theft occurs at the same time as part of one transaction, only one conviction may be returned.); citing People v. Bouzas, 53 Cal.3d 467, 469, 279 Cal.Rptr. 847, 807 P.2d 1076; People v. Witcher, 41 Cal.App.4th 223, 233, 48 Cal.Rptr.2d 421; People v. Nor Woods (1951) 37 Cal.2d 584, 586"587, 233 P.2d 897 (used car dealer improperly convicted of two grand theft counts, for taking a 1946 Ford and some cash in exchange for a 1949 Ford, and failing to deliver the new 1949 Ford or to return the 1946 Ford and the money to the victim: only a single theft occurred, so only one conviction was permissible).

CAL POST CON " GROUNDS " VALIDITY OF DEFINITION OF OFFENSE -- LOCAL ORDINANCE RESTRICTING SEX OFFENDERS ACTIONS PREEMPTED BY STATE LAW
People v. Nguyen, 222 Cal.App.4th 1168, 166 Cal.Rptr.3d 590 (4th Dist. Jan. 10, 2014) (sustaining demurrer to a misdemeanor complaint that charged violation of a local ordinance that prohibits registered sex offenders from entering city parks and recreational facilities without written permission from the city's police chief, because the state statute restricting a sex offender's daily life fully occupies the field and preempts the city's efforts to further restrict sex offenders from visiting city parks and recreational facilities and preempts the ordinance's requirement that sex offenders obtain written permission from the city's police chief before entering a city park and recreational facility).

Other

CAL POST CON " GROUNDS " COMPULSORY PROCESS " EVIDENCE " DEPORTED WITNESS
People v. Roldan, 205 Cal.App.4th 969, 141 Cal.Rptr.3d 88 (4th Dist. May 1, 2012) (reversing convictions for shooting a man who was later deported before testifying at trial, where the prosecution's efforts to make the deportee available for trial did not constitute due diligence under the law).

CAL POST CON " GROUNDS " CANNOT CHARGE CONSPIRACY TO PARTICIPATE IN A STREET GANG
People v. Johnson, 205 Cal.App.4th 594, 140 Cal.Rptr.3d 711 (Apr. 26, 2012) (a defendant cannot properly be charged with conspiracy to actively participate in a criminal street gang, since a criminal street gang is, at its core, a form of conspiracy, and the People cannot charge a conspiracy to actively participate in a conspiracy).

CAL POST CON " GROUNDS " FORFEITED OR INVITED ERROR BY ACQUIESCENCE
People v. Allexy, 204 Cal.App.4th 1358 (Apr. 16, 2012) (revocation of probation and order that defendant register as a sex offender, in compliance with plea bargain, is affirmed, although there was no statutory basis for the plea bargain bifurcated procedure, because any objection regarding that error was forfeited or invited because defense counsel acquiesced to the court's procedure).

CAL POST CON " APPEAL " FACTUAL BASIS " DEFENDANT ESTOPPED FROM CHALLENGING NO CONTEST PLEA FOR LACK OF FACTUAL BASIS, WITHOUT TRYING TO SET ASIDE THE CONCESSION, WHERE AT PLEA HE CONCEDED THERE WAS A FACTUAL BASIS
People v. Voit, ___Cal.App.4th ___, ___ Cal.Rptr.2d ___, 2011 WL 5607628 (6th Dist. Nov. 18, 2011) (defendant is estopped from trying to set aside his plea, for lack of a factual basis, without trying to set aside the concession, where he conceded at plea there was a factual basis).

CAL POST CON " SAFE HAVEN " FIRST AMENDMENT CHALLENGE TO THREAT STATUTE REJECTED CAL POST CON " GROUNDS " CONSTITUTIONALITY OF STATUTE
People v. Lowery, 52 Cal.4th 419 (Aug. 11, 2011) (statute prohibiting willfully threatening violence against a crime witness or victim, Pen al Code 140(a), applies only to those threatening statements that a reasonable listener would understand to constitute a true threat, and statute does not violate the First Amendment through lack of any requirement that the threat be carried out immediately or that the defendant have the apparent ability to carry it out); see Annot., Validity, construction, and application of state statutes imposing criminal penalties for influencing, intimidating, or tampering with witness (1981) 8 A.L.R.4th 769.

CAL POST CON " APPEAL " WAIVER OF APPEAL " FACTS DID NOT CLEARLY ESTABLISH APPEAL WAIVER WAS KNOWING BECAUSE IT WAS NOT EXPLAINED TO DEFENDANT
People v. Mitchell, 197 Cal.App.4th 1009, 2011 WL 3104123 (3d Dist. Jul. 26, 2011) (waiver of right to appeal, contained in plea agreement, was not knowing, intelligent, or voluntary, because the facts do not clearly establish an intelligent relinquishment of a known right after knowledge of the fact.: It is not clear defendant actually understood the right he was being asked to waive. No one took the time to explain the right to him. He certainly did not understand the right when he asked the court what was going on. In response, the court did not explain the right. It simply assumed defendant understood what it was, and it stated the prosecutor wanted him to waive his right to appeal on any issue. The court then confused the matter further by theorizing about what issues defendant might appeal, and telling him the prosecutor wanted him to waive his right to appeal those issues.).

CAL POST CON " APPEAL " WAIVER OF APPEAL " STANDARD OF REVIEW
In People v. Mitchell, the Third District Court of Appeal reviewed the requirements for a valid waiver of the right to appeal: To be enforceable, defendant's waiver of the right to appeal must be knowing, intelligent, and voluntary. ( People v. Vargas (1993) 13 Cal.App.4th 1653, 1659 (Vargas). Waivers may be manifested either orally or in writing. [Citation.] The voluntariness of a waiver is a question of law which appellate courts review de novo. [Citation.] (People v. Panizzon (1996) 13 Cal.4th 68, 80.) Waiver is defined as an intentional relinquishment or abandonment of a known right or privilege. The determination of whether there has been an intelligent waiver ... must depend, in each case, upon the particular facts and circumstances surrounding that case, including the background, experience, and the conduct of the accused. [Citation.] The valid waiver of a right presupposes an actual and demonstrable knowledge of the very right being waived. [Citations.] [Citation.] It is the intelligent relinquishment of a known right after knowledge of the facts. [Citation.] The burden is on the party claiming the existence of the waiver to prove it by evidence that does not leave the matter to speculation, and doubtful cases will be resolved against a waiver. [Citation.] The right of appeal should not be considered waived or abandoned except where the record clearly establishes it. [Citation.] (Vargas, supra, 13 Cal.App.4th at pp. 1661"1662.) (People v. Mitchell, 197 Cal.App.4th 1009, 2011 WL 3104123 (3d Dist. Jul. 26, 2011) (waiver of right to appeal, contained in plea agreement, was not knowing and intelligent, because the facts do not clearly establish an intelligent relinquishment of a known right after knowledge of the fact.: It is not clear defendant actually understood the right he was being asked to waive. No one took the time to explain the right to him. He certainly did not understand the right when he asked the court what was going on. In response, the court did not explain the right. It simply assumed defendant understood what it was, and it stated the prosecutor wanted him to waive his right to appeal on any issue. The court then confused the matter further by theorizing about what issues defendant might appeal, and telling him the prosecutor wanted him to waive his right to appeal those issues.).

CAL POST CON " APPEAL " WAIVER OF APPEAL " FACTS DID NOT CLEARLY ESTABLISH APPEAL WAIVER WAS VOLUNTARY
People v. Mitchell, 197 Cal.App.4th 1009, 2011 WL 3104123 (3d Dist. Jul. 26, 2011) (waiver of right to appeal, contained in plea agreement, was not voluntary: It also is not clear the waiver was made voluntarily. It was not part of the original negotiated agreement, and thus was not an integral part of the plea at that time. The prosecutor raised it for the first time after defendant had already pleaded guilty. Although defense counsel expressed uncertainty and reluctance, the trial court exerted pressure by telling defendant he should not let this matter hang up his plea before he even understood the matter. The court also discouraged defendant by saying it did not see an issue on which defendant would appeal. The prosecutor's demand was tardy and a surprise to everyone. The court's pressure deprived defendant of a full opportunity to make the waiver on his own accord.).

CAL POST CON " SENTENCE " GROUNDS " SENTENCE ON ENHANCEMENT NEITHER CHARGED NOR ADMITTED
People v. Mitchell, 197 Cal.App.4th 1009, 2011 WL 3104123 (3d Dist. Jul.26, 2011) (defendant is not estopped by plea agreement from challenging sentence where the trial court not only exceeded its jurisdiction, but acted without jurisdiction when it imposed the enhanced sentence for first degree robbery in concert, an enhancement defendant never committed and which was never alleged against or admitted by him).

CAL POST CON " GROUNDS " SPECIFIC STATUTE CONTROLS OVER MORE GENERAL STATUTE
People v. Murphy, 52 Cal.4th 81, 253 P.3d 1216 (Jul. 7, 2011) (reversing conviction based on false stolen vehicle report to an officer, where Legislature intended that conduct to be prosecuted as a misdemeanor under Vehicle Code 10501(a), rather than under the more general, felony statute governing the offering of a false instrument for filing in a public office, Penal Code 115(a)).

GROUNDS " MULTIPLE CONVICTIONS " PROHIBITION AGAINST BEING CONVICTED OF RECEIVING STOLEN PROPERTY WITH CONVICTION OF THEFT OF THE SAME PROPERTY
People v. Ferrer, 184 Cal.App.4th 873, 108 Cal.Rptr.3d 908 (May 14, 2010)(reversing trial courts order dismissing criminal charges, because Penal Code 1050 and 1050.5 prohibit the dismissal of an action due to the absence of good cause for a continuance or for the prosecutor's failure to provide proper notice of a request for a continuance; and 2) although the trial court did not dismiss this action as an express sanction for a failure to show good cause, dismissal was the reasonably foreseeable result of denial of the motion to continue).

GROUNDS - MULTIPLE CONVICTIONS FORBIDDEN WHERE MANY CHECKS VICTIMIZED ONLY THREE VICTIMS
People v. Otubuah, 184 Cal.App.4th 422, 2010 WL 1367449 (May 12, 2010)( (convictions on 24 of the 27 counts of forgery for possessing completed checks with intent to defraud are reversed as the checks were from three issuers and defendant violated the financial autonomy of only three victims, committing forgery only once for each victim; since possession of the checks violated the autonomy of the three issuers, as the means toward fraud, the three convictions are appropriate).

GROUNDS -- MULTIPLE CONVICTIONS FORBIDDEN WHERE MANY CHECKS VICTIMIZED ONLY THREE VICTIMS
People v. Otubuah ( April 7, 2010) 110 Cal.Rptr.3d 14, 2010 WL 1896419 (convictions on 24 of the 27 counts of forgery for possessing completed checks with intent to defraud are reversed as the checks were from three issuers and defendant violated the financial autonomy of only three victims, committing forgery only once for each victim).

CAL POST CON " GROUNDS " DUAL CONVICTION BAR PREVENTS CONVICTION OF BOTH THEFT AND RECEIVING THE SAME PROPERTY
CRIMINAL LAW & PROCEDURE People v. McPike, No. A122030 Conviction of defendant for misdemeanor petty theft and a felony count of receiving stolen property is reversed in part because defendant cannot be convicted of stealing and receiving the same property. Defendant's conviction for receiving stolen property is affirmed as there is no practical or policy reason to deny the effect of the jury's verdict on the greater of the two offenses.

CAL POST CON " GROUNDS " BAN ON MULTIPLE CONVICTION
People v. Hall, No. C060359 Defendant's convictions are reversed in part where he could not be convicted of both counts of receiving stolen property because receipt/possession of more than one item of stolen property at the same time constituted a single offense.

POST CON RELIEF " GROUNDS " READABILITY
Sixth District published In re E.O. (2010) 188 Cal.App.4th 1149 (probation condition restricting the minor's freedom to approach or enter a courthouse was unconstitutionally vague.) In making its point, the court stressed the need for precise and comprehensible probation conditions - especially in juvenile cases. The court analyzed the text of the probation condition in question using an "online readability tester" which showed it would take over 28 years of education to comprehend the condition as written. (Id. at p. 1157.) Courts rule that the defendant was advised of a right, orally or in a prepared form, and that he/she thereafter acknowledged the right and waived it. But in many cases, these advisements are prepared using complicated text that an average person, much less a criminal defendant in a time of high anxiety, would find difficult to comprehend. Readability tests are designed to measure comprehension difficulty when reading a passage of contemporary English. One test, the Flesch-Kinkaid Grade Level test, indicates the number of years of education a person needs to be able to understand the text easily, after the first reading. The fairly recent CALCRIM jury instructions were a product of a task force appointed by Chief Justice George after a study revealed that jurors could not understand and therefore properly apply the earlier standard instructions as written. Now Supreme Justice Corrigan in her Preface to CALCRIM acknowledged the earlier instructions were "impenetrable" and a product of statutes and case law written by and for a specialized legal audience and expressed in terms of art that have evolved over several centuries. She emphasized that jurors must be able to understand the instructions they are asked to follow, and the instructions should be drafted in a way that takes the audience into account. The same is certainly true of legal advisements given to criminal defendants, and yet in many cases, the text is almost incomprehensible to regular people charged with crimes. For example, the Penal Code section 1016.5 advisal given before a guilty plea explains the immigration consequences of the conviction in text the Flesh Kinkaid readability study shows would require over 23 years of education - the equivalent of a graduate degree. Very few people advised of that right before pleading guilty probably understood it but it is routinely used against defendants seeking to withdraw pleas based on a claim that they were unaware of the consequences. The Lopez waiver form used in many courts to advise potential pro per defendants of the dangers of self-representation requires almost 13 years of education according to the Flesch-Kinkaid test. The Penal Code section 977 waiver of presence advisement requires over 28 years of education to understand a form that simply needs to say "I don't need to be present for these proceedings." Compare this with the standard Miranda advisement which requires only a 6th grade education and was suggested by a court that was genuinely concerned that the suspect understand the warning. Our clients' cognitive levels can be easily tested by a psychologist, and the results of this testing can be measured against the readability studies to show they did not understand a particular advisement. Counsel should be on the lookout for opportunities to make use of the readability studies as the court did in In re E.O. Thanks to Pat Ford.

ATTORNEY-CLIENT PRIVILEGE " DUTY TO KEEP UNDOCUMENTED IMMIGRATION STATUS CONFIDENTIAL
Attorneys representing unauthorized immigrants are required to maintain their clients immigration status confidential unless otherwise directed or required by law, and are not required to affirmatively notify opposing counsel or the court of their clients immigration status. David P. Weber, (Unfair) Advantage: Damocles Sword And The Coercive Use Of Immigration Status In A Civil Society, 94 Marquette L. Rev. 613, 639 n.158 (2010).

POST CON RELIEF " GROUNDS " UNCONSTITUTIONALITY OF STATUTE " MANDATORY PRESUMPTION
Sandstrom v. Montana, 442 U.S. 510 (1979) (statute defining a criminal offense that contains an irrebuttable presumption of an essential element of the offense is unconstitutional).

EVIDENCE " ADMISSIBILITY " IMMIGRATION STATUS IS INADMISSIBLE TO IMPEACH
TXI Transp. Co. v. Hughes, 306 S.W.3d 230, 242 n.7 (Tex. 2010) (a witnesss immigration status is not admissible for impeachment purposes based on the witnesss truthfulness or lack thereof); citing First Am. Bank v. W. DuPage Landscaping, Inc., No. 00 C 4026, 2005 WL 2284265, at *1 (N.D. Ill. 2009); Mischalski v. Ford Motor Co., 935 F. Supp. 203, 207"08 (E.D.N.Y. 1996); Castro-Carvache v. INS, 911 F. Supp. 843, 852 (E.D. Pa. 1995); Figeroa v. I.N.S., 886 F.2d 76, 79 (4th Cir. 1989); Hernandez v. Paicius, 134 Cal. Rptr. 2d 756, 761"62 (Cal. Ct. App. 2003).

POST-CON RELIEF " GROUNDS " JUDICIAL BIAS " BIAS AGAINST IMMIGRANTS
In re M.M., 587 S.E.2d 825, 831 (Ga. Ct. App. 2003) (statements of open bias such as I have a problem with your immigration situation); see also People v. Phuong, 679 N.E.2d 425, 428 (Ill. App. Ct. 1997) (chastising trial judge for discriminatory comments such as [n]othing like a bench trial with a Chinese interpreter); Mejia v. United States, 916 A.2d 900, 903 (D.C. Cir. 2007) (reversing a conviction on the grounds that a judges musings, though potentially well-intentioned, created a perception of bias); In re Goodfarb, 880 P.2d 620, 623 (Ariz. 1994) (sanctioning a judge for using racially inflammatory language in court); see also In re Schiff, 635 N.E.2d 286, 287"88 (N.Y. 1994) (disciplining judges for purposefully disparaging Puerto Ricans in the presence of an Hispanic attorney);

PRACTICE ADVISORY " COURT HAS NO DUTY TO REPORT ILLEGAL IMMIGRATION STATUS
Every judicial ethics advisory committee that has examined and reported on the issue has concluded that courts no affirmative obligation exists to report on undocumented immigration. Cynthia Gray, A Judges Obligation to Report Criminal Activity, JUD. CONDUCT REP., Fall 1996, at 3; see, e.g., N.Y. Advisory Comm. on Judicial Ethics, Op. 05-84 (2005) (noting that while a judge must report misconduct by another judge or attorney who has violated the Code of Judicial Conduct or Rules of Professional Responsibility, no rule has been adopted regarding litigants or witnesses); see also Ala. Judicial Inquiry Commn, Op. 86-281 (1986) (no duty to report criminal offense discovered during course of trial); Ariz. Judicial Ethics Advisory Comm., Op. 92-15 (1992) (no duty to report illegal activity); Fla. Ethics Advisory Comm., Op. 78-4 (no duty to report illegal activity); Ill. Judicial Ethics Comm., Op. 02-01 (2002) (no duty to report illegal activity, though reporting is not prohibited); Me. Ethics Advisory Comm., Op. 01-1 (2001) (no duty to report illegal activity); Utah Ethics Advisory Comm., Op. 00-3 (2000) (no duty to report illegal activity); and Wash. Ethics Advisory Comm., Op. 02-9 (2002) (no duty to report illegal activity).

CAL POST CON " VEHICLES " PENAL CODE 1016.5 MOTION TO VACATE " EVIDENCE " WITNESS " JUDGE AS WITNESS
A judge who presided over a criminal proceeding may not testify as a witness over the objection of any party. Evidence Code 703. Moreover, a judge is not competent to testify as a witness in a later civil proceeding at all, with very limited exceptions. Evidence Code 703.5.

CAL POST CON " EVIDENCE " ATTORNEY-CLIENT PRIVILEGE " EXCEPTION FOR MATTERS RELEVANT TO A BREACH OF DUTY ARISING OUT OF LAWYER-CLIENT RELATIONSHIP
Evidence Code 958 (There is no privilege under this article as to a communication relevant to an issue of breach, by the lawyer or by the client, of a duty arising out of the lawyer-client relationship.).