The Inquisitive Prosecutors' Guide: Recent Episodes
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This edition of the Inquisitive Prosecutor’s Guide discusses prosecutorial obligations when it comes to the criminal history records (rap sheets) of defendants, victims, and witnesses in general as well as obligations to provide exculpatory information in grand jury records in light of the most recent Attorney General opinions on these obligations. (See 105 Ops.Cal.Atty.Gen. 146; 105 Ops.Cal.Atty.Gen. 157; 2023 WL 6009198, at p. *1 (Cal.A.G. Aug. 24, 2023).) Plus, the podcast will cover of Assembly Bill 709 (going into effect on January 1, 2024) and its impact on Brady list disclosures.
2023-IPG-57 (RECENT CSC OPINIONS: LEWIS AND PRUDHOLME)
This edition of the Inquisitive Prosecutor’s Guide discusses two recent California Supreme Court decisions. In the first case (People v. Lewis (2023) 14 Cal.5th 876), the court decided the issue of whether the element of “force or fear” is “relaxed” when the adult being kidnapped is too intoxicated to consent to the movement. The trial prosecutor (Santa Clara County DDA Jonathan Beardsley) in that case joins the podcast as a guest. In the second case (People v. Prudholme (2023) 14 Cal.5th 961, the court decided the question of whether the legislative reduction in probationary periods enacted by AB 1950 (that went into effect in 2021) applied retroactively to defendants whose cases were not final – even if the length of the probationary period had been negotiated as part of a plea bargain. Santa Clara County DDA Pablo Wudka-Robles joins the podcast to discuss that case.
2023-IPG-55 (IMMUNITY ISSUES)
This edition of the Inquisitive Prosecutors’ Guide discusses immunity grants (use, derivative use, and transactional), and issues relating to immunity, including, but not limited to: (i) when a person is entitled or not entitled to assert the Fifth Amendment privilege; (ii) when a person’s refusal to testify may be done in front of a jury; (iii) formal statutory grants of immunity in felony (PC § 1324), misdemeanor (PC § 1324.1), and juvenile (CRC Rule 5.548) cases; (iv) informal (nonstatutory) immunity agreements and proffers; (v) Kastigar hearings; (vi) judicially-initiated immunity grants in criminal cases and quasi-criminal cases; (vii) judicially-initiated immunity grants in civil cases; (viii) legislatively-authorized grants of immunity in non-criminal cases; (ix) hen and how prosecutors can use immunized (Lybarger’d) statements of public safety officers or other government employees (Spielbauer’d) statements. The podcast features Santa Clara County Supervising District Attorney Bryan Slater.
This podcast of the Inquisitive Prosecutors’ Guide discusses (i) when officers have probable cause to search vehicles based on the odor or presence of marijuana in light of the all the most recent published and unpublished case law and Proposition 64 (which legalized possession and use of marijuana under certain circumstances) and (ii) when (or if) officers can search a person for evidence of drug use based on probable cause to believe the person is under the influence of unlawful drugs even when the officer is not going to make a custodial arrest. The podcast features Santa Clara County Deputy District Attorney Melissa Castillo.
2021-IPG-50 (LANGE V. CALIFORNIA – SCOTUS ON HOT PURSUIT)
This edition of the Inquisitive Prosecutor’s Guide discusses the recent United States Supreme Court decision in Lange v. California (2021) 141 S.Ct. 2011, a case deciding the issue of whether the flight of a suspected misdemeanant will always justify a warrantless entry by police into a home when they are in hot pursuit of a suspected misdemeanant who has just fled inside a home. We discuss the current state of the law is and try to provide answers to some questions left open or unclear by the decision in Lange. The guest for the podcast is Sonoma County Deputy District Attorney Robert Maddock. DDA Maddock argued the case of Lange when it was still in the superior court appellate division and subsequently wrote an amicus brief on behalf of his office and the California District Attorney’s Association when the case got to the High Court.
This podcast of the Inquisitive Prosecutors’ Guide discusses the latest case from the United States Supreme Court on the scope of the “community caretaking” rationale (Caniglia v. Strom (2021) 141 S.Ct. 1596) as well as a decision from the California Supreme Court that foreshadowed the decision in Caniglia (People v. Ovieda (2019) 7 Cal.5th 1034) and several other cases bearing on when the community caretaking rationale will or will not justify a search. IPG attempts to figure out how the decisions in Caniglia and Ovieda will impact existing case law regarding home entries in response to suicidal persons, reports of gun use, and searches and seizures for firearms belonging to persons with mental health issues. The IPG also discusses what, if any, will be the impact of Caniglia and Ovieda on use of the community caretaking rationale in other contexts than home entries and when police seek to rely upon the exigent circumstances exception (including the emergency branch of that exception) to justify searches. The podcast features search and seizure expert and author of Point of View and California Criminal Investigation: Alameda County Senior Deputy District Attorney Mark Hutchins.
2020-IPG-46 (SUBPOENAS FOR THIRD-PARTY RECORDS - FACEBOOK V. SUPERIOR COURT)
This podcast of the Inquisitive Prosecutors’ Guide discusses the latest case from the California Supreme Court on subpoenaing third party records in a criminal case with a focus on obtaining social media records. (Facebook v. Superior Court of San Diego County (Touchstone) (2020) 10 Cal.5th 329. If you ever plan to subpoena such records or to quash a subpoena seeking such records, this is the podcast for you.
2020-IPG-45 (FORFEITURE BY WRONGDOING -RENEAUX)
This IPG discusses the latest case (People v. Reneaux (2020) 50 Cal.App.5th 852) to weigh in on the scope of the forfeiture by wrongdoing doctrine and the hearsay exception (Evidence Code section 1390) that embodies the doctrine. This IPG is a joint production with Points and Authorities and the podcast may be viewed as a video that can be accessed by the link below. Accompanying this IPG is a 36-page bench memo stocked with all the recent case law explaining how the doctrine and hearsay exception should be interpreted. The memo serves double duty as a up to date and comprehensive compendium of the law governing the forfeiture by wrongdoing doctrine and section 1390.
2020-IPG-44 (NEW BAIL CASES: WHITE, AYALA & ER4)
This edition of IPG features a new case from the California Supreme Court discussing when a trial court can deny bail to a defendant and the standard of review for that decision (In re White 2020 WL 2563831) as well as an appellate court case dealing with the scope and validity of Emergency Rule 4, adopted by the Judicial Council of California in response to the ongoing emergency situation caused by the COVID-19 pandemic (Ayala v. Superior Court of San Diego County (2020) 48 Cal.App.5th 387. Plus, an update on the status of Emergency Rule 4 -the rule relating to bail.
2020-IPG-43 (LOPEZ TERMINATES ARTURO D. VEHICLES SEARCHS FOR PERSONAL ID)
In this edition of IPG, we address the California Supreme Court case of People v. Lopez (2019) 8 Cal.5th 353, which held that searches of vehicles stopped for a traffic infraction will generally violate the Fourth Amendment if based solely upon the driver’s failure to provide a license or other identification upon request. This holding overruled an earlier decision of the California Supreme Court in In re Arturo D. (2002) 27 Cal.4th 60. We also discuss some of the potential questions that might arise regarding what officers can or cannot do in light of the decision and its rationale, as well as potential alternative exceptions to the warrant requirement that will allow vehicle searches in situations that often may be present when a driver has no identification.
2019-IPG-42 (ALADS, SB 1421, & “BRADY LISTS”)
This Inquisitive Prosecutors Guide discusses the California Supreme Court case of Association for Los Angeles Deputy Sheriffs v. Superior Court of Los Angeles County (2019) 8 Cal.5th 828, the modification to the Pitchess statutes made by Senate Bill 1421 (SB 1421), and the respective impacts of both on various issues relating to prosecutorial disclosure obligations. The accompanying podcast features a conversation with discovery expert, Santa Clara County Assistant District Attorney David Angel and will attempt to answer over a dozen questions raised by the case and SB 1421, including: (1) Can, must, or should law enforcement agencies provide “Brady tips” to prosecutors? (2) Can prosecutors pass on to defense attorneys “Brady tips” received from law enforcement agencies without complying with the Pitchess procedures? (3) Can law enforcement agencies provide information about officers who might be witnesses in a future prosecution? and (4) What peace officer personnel files do or don’t remain confidential under SB 1421? The accompanying podcast will provide 80 minutes of general MCLE credit.
2019-IPG-41 (IMPEACHMENT WITH CONVICTIONS & MISCONDUCT OF MORAL TURPITUDE)
In this edition of IPG, we address the various issues that arise when seeking to impeach a witness or defendant with prior convictions or misconduct. Among the issues discussed: (i) when a witness can be asked about conduct underlying a felony conviction involving moral turpitude for purposes of impeachment; (ii) when a person can be impeached with a felony conviction that has been subject to relief pursuant to Penal Code sections 1203.4 et seq.; (iii) what information a prosecutor must know or have before questioning a defendant about a prior conviction; (iv) when a witness can be impeached with noncriminal misconduct of moral turpitude; (v) whether a defendant or witness is entitled to bring out the fact the impeaching conduct resulted in a dismissal or an acquittal; and (vi) when a defendant or witness can successfully assert the Fifth Amendment privilege as to questions about pending criminal conduct being offered to impeach. The accompanying podcast will provide 75 minutes of general MCLE credit.
2018-IPG-39 (NEW RESENTENCING PROVISIONS OF PC § 1170(d)(1)) This IPG discusses two new laws (one that went into effect in late June of 2018 (AB 1812) and one going into effect in early January of 2019 (AB 2942). AB 1812 made changes to Penal Code section 1170(d)(1) allowing courts, upon recommendation of the Secretary of the Department of Corrections and Rehabilitation (CDCR) or the Board of Parole Hearings (or the county correctional administrator in the case of county jail inmates) to resentence defendants and modify judgments, including judgments entered after a plea agreement, at any time and in any case. AB 2942 will allow district attorneys to recommend resentencing under that section as well. The potentially wide-ranging impact of these changes is explored.
This IPG discusses the United States Supreme Court decision in Carpenter v. United States (2018) 138 S.Ct. 2206, a case deciding whether a warrant is required to obtain cell site location information (CSLI), and its potential impact on law enforcement’s ability to obtain CSLI. Among the issues discussed: (i) Does this decision have any real impact on the ability of law enforcement in California to obtain CSLI without a warrant – considering that the California Electronic Communication Privacy Act already generally requires a warrant for electronic communication information? (ii) Will this decision impact a prosecutor’s ability to subpoena third party records in general when a defendant has a privacy interest in the third-party records? (iii) If exigent circumstances exist, can the government obtain either historical or real-time CSLI without a warrant?
2018-IPG-37 (LIMITS ON PROSECUTORIAL CONTACTS WITH REPRESENTED & UNREPRESENTED PERSONS)
In this edition of the Inquisitive Prosecutors Guide, we discuss the barriers the Sixth and Fifth Amendment impose on prosecutorial contact with represented persons as well as the new rules of professional conduct governing contact by attorneys with represented and unrepresented persons (California Rules of Professional Conduct [“CRPC”] Rules 4.2, 4.3, and subdivisions (b) and (c) of Rule 3.8) going into effect in November of this year. Among the questions discussed: When can prosecutors or law enforcement contact persons whose Sixth Amendment right to counsel has attached? When can prosecutors or law enforcement re-contact persons whose Fifth Amendment right to counsel has been invoked during custodial interrogation? Does new CPRC rule 4.2 change the currently existing rule (CPRC 2-100) governing contact with represented persons in any significant way? And when can prosecutors communicate with charged but unrepresented persons and/or negotiate plea bargains with such persons?
2017-IPG-36 (PRIVACY INTERESTS IN RENTAL CARS (BYRD) & THE CURTILAGE (COLLINS))
This IPG (in conjunction with Points and Authorities) discusses two recent search and seizure cases from the United States Supreme Court. The first is a case addressing whether an “unauthorized” person who was allowed to drive a rental car rented by another has a reasonable expectation in the rental car (Byrd v. United States (2018) 138 S.Ct. 1518. The second is a case addressing whether the automobile exception allows for a warrantless entry onto the curtilage of a home to search a vehicle which officers have probable cause to believe is stolen (Collins v. Virginia 2018 WL 2402551).
2017-IPG-34 (HOPSON AND WASHINGTON)
This IPG discusses two cases involving the Confrontation Clause-related issues. The first is a case from the California Supreme Court that reads like a law school hypothetical highlighting the potential pitfalls of introduce statements of accomplices for purportedly non-hearsay purposes such as impeaching a defendant. It also provides an interesting discussion of the limits on what evidence can be introduced when a defendant “opens the door” to allowing in testimony that would otherwise be inadmissible over a Confrontation Clause objection. (People v. Hopson (2017) 3 Cal.5th 424.) The second is a California appellate decision more solidly locking in the principle that the Aranda-Bruton rule does not apply when the statement of the co-defendant sought to be introduced in a joint trial is nontestimonial. (People v. Washington 2017 WL 3866413.)
This IPG podcast focuses on providing comprehensive answers to the questions most likely to arise in the investigation, charging, and prosecution of marijuana-related crimes in the wake of Proposition 64 (The “Control, Regulate and Tax Adult Use of Marijuana Act (‘the Adult Use of Marijuana Act’)” and Senate Bill 94. Among the questions posed: 1. Is all possession of marijuana now legal? And, if not, what is the impact of Prop 64 on the laws previously governing possession, possession for sale, cultivation, and sale of marijuana? 2. When will the odor of marijuana or possession of a small amount of marijuana allow for detentions of persons, or searches of vehicles, persons, or homes? 3. What is the impact of Prop 64 on whether an alert by a drug-sniffing dog provides probable cause to search? and 4. What is the impact of Prop 64 on marijuana-related prosecutions pending at the time of its passage?
This joint IPG and Points and Authorities production discusses the recent appellate decision in Association for Los Angeles Deputy Sheriffs v. Superior Court 2017 WL 2962901, which purports to address the question of whether it violates the Pitchess statutes for law enforcement agencies to voluntarily provide “Brady tips” to prosecutor’s offices. A discussion of some of the issues raised by that decision is also included.
This 60 minute podcast covers five related topics. First, it discusses the principles governing motions to dismiss based on the loss or destruction of evidence (Trombetta-Youngblood motions). Second, it discusses how hearings on these motions should be conducted. Third, it discusses what, if any, obligations exist on the part of law enforcement to collect evidence. Fourth, it discusses how prosecutors should respond to defense requests for examination and testing of evidence seized by law enforcement. Fifth, it discusses the ability of the prosecution to comment on the fact that evidence was released to the defense for testing. This podcast features San Francisco Assistant District Attorney Allison Macbeth, who co-authored the IPG memo accompanying the podcast.
This IPG podcast and accompanying 116 page memo discuss a wide variety of issues arising in determining when and whether to give instructions on lesser included offenses. The memo covers several sub-topics not discussed in the live presentation by DDAs Chuck Gillingham and Jeff Rubin. The memo includes a fairly comprehensive list of crimes and their lesser included offenses. Listening/viewing to the podcast will provide 50 minutes of general self-study MCLE credit.
This podcast discusses the new human trafficking laws going into effect in 2017. Among the new laws discussed: a new affirmative defense unique to defendants charged with any crime other than a violent or serious offense or human trafficking; a new procedure for vacating nonviolent convictions and sealing records when defendants can show their offense was committed as a direct result of being a human trafficking victim; a new evidence code section expressly permitting expert testimony on human trafficking; a new exception to the general rule against surreptitiously recording calls that applies when trying to obtain evidence of human trafficking; a new procedure for allowing minors 15 and under to testify about the crime of human trafficking via closed circuit television; and a new procedure for fast-tracking human trafficking prosecution.
This podcast recounts a live presentation by Santa Clara County prosecutors Steve Dal Porto and Jeff Rubin on how to stay within the circle of permissible opening statement and closing argument. The podcast and accompanying memo discusses all areas of argument likely to be the subject of misconduct allegations with the exception of Doyle and Griffin error – topics covered in a previous IPG. The podcast provides 1.5 hours of self-study ethics credit.
This two-hour podcast covers a live lecture presented by Santa Clara County Deputy District Attorney Kathy Storton on the new laws going into effect in 2017 that potentially impact criminal prosecutions. A special guest appearance is made by Santa Clara County Deputy District Attorney Tom Flattery, who discusses some of the new laws that make changes to the California Electronic Communications Privacy Act. The written edition of IPG that accompanies the podcast focuses on a dozen of the new laws going into effect in 2017 that prosecutors are most likely to want to know about, including new laws reducing peremptory challenges in misdemeanor cases, allowing business records obtained by warrant to be admitted in the same way as business records obtained by subpoena, allowing juveniles to engage in prostitution without any criminal penalties, criminally penalizing prosecutors for engaging in bad faith, intentional Brady violations, eliminating the statute of limitations for certain sex offenses, and requiring state prison for persons who rape unconscious or intoxicated victims.
2016 IPG#25 (PROPOSITION 57)
This podcast discusses the recently passed Proposition 57- the Public Safety and Rehabilitation Act of 2016. The discussion covers the impact of the initiative on criminal and juvenile proceedings, its ramifications for prosecutors, and some of the issues that will be raised by its implementation.
This edition of IPG covers relatively recent cases that prosecutors handling postrelease community supervision (PRCS) and parole revocations should know about. Among the issues raised by the cases discussed: (i) can a judge terminate a defendant’s parole under his or her power to dismiss pursuant to Penal Code section 1385 when defendant has been sentenced to state prison in a different case? (Vonwahlde 2016 WL 5800026); (ii) can a judge impose additional time (even beyond the 364-day maximum sentence for misdemeanors) on a defendant for violating the one-year parole period imposed on him after his felony was reduced to a misdemeanor under Prop 47? (Hronchak (2016) 2 Cal.App.5th 884); (iii) are PRCS revocation hearings subject to the same rules governing parole revocation hearings? and, if not, do the procedures comport with due process? (Byron (2016) 246 Cal.App.4th 1009 and Gutierrez (2016) 245 Cal.App.4th 393); and (iv) is a defendant who has completed one year of PRCS without violating conditions of his supervision no longer subject to a search condition imposed pursuant to the statute governing PRCS? (Young (2016) 247 Cal.App.4th 972).
If you have a case with multiple defendants, one or more of whom have given statements implicating one or more of the codefendants, it’s nice to know about the Aranda-Bruton rule. This podcast and the accompanying IPG memo does its darndest to answer the most commonly asked questions in this tricky area of the law.
This podcast covers the recent California Supreme Court decision of People v. Sanchez (2016) 63 Cal.4th 665 which modified the rules governing the admissibility of hearsay offered as a basis for an expert's opinion. The impact of the case for prosecutors, especially those handling gang prosecutions is discussed.
This edition of IPG covers a trio of cases, two from the California Supreme Court and one from the United States Supreme Court. The first of the California Supreme Court cases (Wade (2016) 63 Cal.4th 137) addresses the question of whether a defendant who wears a backpack with a loaded firearm inside it violates the statute prohibiting the carrying of a loaded firearm “on the person.” The second case from the California Supreme Court (Castillolopez (2016) 202 Cal.Rptr.3d 703) addresses whether a concealed pocketknife with an open blade can be considered a “dirk or dagger” for purposes of the statute prohibiting the carrying of dirks or daggers. The case from the United States Supreme Court (Utah v. Strieff 2016 WL 3369419) addresses whether an outstanding arrest warrant that comes to light after an unlawful detention can prevent application of the exclusionary rule to evidence seized incident to arrest on the warrant.
This podcast covers two recent cases involving claims of discrimination in jury selection that provide an interesting contrast in perspective though not necessarily approach. One of the cases is from the United States Supreme Court (Foster v. Chatman 2016 WL 2945233) and the other is from a California Court of Appeal (People v. Aleman 2016 WL 3001137). The podcast touches upon many different Batson-Wheeler issues.
This podcast is the second portion of a Proposition 47 update covering all the new cases involving issues that have arisen in applying that initiative.
This podcast is the first in a series of Proposition 47 updates covering cases addressing issues that have arisen in applying the initiative. This podcast focuses on cases discussing the scope of the two statutes first enacted by Proposition 47: Penal Code sections 459.5 and 490.2.
This edition of the Inquisitive Prosecutor's Guide discusses demurrers with a focus on demurrers based on claims that the charging document does not provide adequate notice of the charges.
This edition of IPG attempts to answer several questions regarding proving priors in light of Descamps and its recent California progeny, including (i) Does the Sixth Amendment allow the prosecution to not only prove the bare fact of the conviction but other facts about the conviction to a judge (rather than a jury)? and (ii) what documents may the prosecution safely rely on in proving the fact a defendant had suffered a prior conviction to a judge (rather than a jury)?
This edition of IPG discusses a trio recent appellate cases involving search clauses: People v. Douglas (2015) 240 Cal.App.4th 855; People v. Romeo (2015) 240 Cal.App.4th 931; and People v. Wolfgang (2015) 240 Cal.App.4th 1268. Among the issues raised in the cases:
Can an officer’s knowledge a defendant is on PRCS, by itself, provide the required pre-search knowledge of the existence and scope of the search clause? Is an officer always required to run a check to verify the status of a probationer immediately before conducting a probation search? Has the Harvey-Madden rule been abrogated in certain circumstances by Proposition 8? Must an officer know of the specific terms of a probation search condition before conducting a probation search? Will evidence obtained by an officer who was not specifically aware of the scope of a search clause always have to be suppressed?
This week's IPG focuses on two recent cases involving what distinguishes a dentention (which requires reasonable suspicion) from consensual encounter (which does not require reasonable suspicion). The first is from the California Supreme Court and highlights the issue of whether a driver of a parked vehicle is considered "detained" when an officer pulls up behind the vehicle and turns on his emrgency lights (Brown 61 Cal.4th 96). The second is from a California appellate court and focuses on the issue of whether the driver of parked car is detained when an officer requests, retains, and runs the license of the driver (Linn 2015 WL 5866997). Guest: Santa Clara County Deputy District Attorney Mike Galli.
This edition of IPG covers two new discovery cases: People v. Lewis 2015 WL 5247046 and Facebook Inc., v. Superior Court 2015 WL 5244640. However, the accompanying podcast, focuses solely on the Lewis case, which deals with the question of a prosecutor’s constitutional (and, at least in dicta, statutory) discovery obligations when it comes to information relating to the arrest and charging of a non-testifying peace officer witness. Our guest on the podcast is Doug MacMaster, a recognized expert in discovery matters and, coincidentally, one of the prosecutors notably but anonymously mentioned in the Lewis case. The Facebook case addresses whether a criminal defendant is entitled to subpoena and obtain electronic information from entities such as Facebook, Instagram, and Twitter pre-trial. Listening to the podcast provides ides 36 minutes of self-study ethics MCLE credit. Guest: Contra Costa County Assistant District Attorney Doug MacMaster.
A discussion of recent California Supreme Court decisions dealing with what constitutionally and statutorily needs to be proved to impose a special circumstances sentence on felony murderers who do not personally kill - even when death is not imposed (Banks 61 Cal.4th 788) and whether a defendant must personally waive his right to a jury (as opposed to a court) trial at an MDO extension hearing (Blackburn 2015 WL 4879673) or an NGI extension hearing (Tran 191 Cal.Rptr.3d 251): Guests: Santa Clara Co ADA Terry Harman and DDA Pinaki Chakravorty.