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LEGAL lingo

The following is a list of motions, hearings, rights, and errors that are sometimes referred to simply by name in appellate practice, such as a "Harvey waiver." This list is not intended to fully explain any given term and its exceptions, but is meant to serve as a starting point. Although not an exhaustive list, some of the more commonly used terms are listed:

ARANDA-BRUTON MOTION (People v. Aranda (1965) 63 Cal.2d 518; Bruton v. United States (1968) 391 U.S. 123 [88 S.Ct 1620, 20 L.Ed.2d 476].) When two or more defendants are jointly charged, and one has made an extra judicial statement which inculpates a co-defendant, that co-defendant may move for severance on that basis; if the statement cannot be redacted to remove prejudice to the co-defendant, either the prosecution must agree not to use the statement or the severance should be granted. (But see People v. Mitcham (1992) 1 Cal.4th 1027.)

ARBUCKLE ERROR (People v. Arbuckle (1978) 22 Cal.3d 749.)
Whenever a judge accepts a plea bargain and retains sentencing discretion under the agreement, an implied term of the bargain is that sentence will be imposed by that judge. Because of the range of dispositions available to a sentencing judge, the propensity in sentencing demonstrated by a particular judge is an inherently significant factor in the defendant's decision to enter a guilty plea. The defendant can specifically enforce that term of the bargain, or if that's not possible, withdraw his plea. The defendant can waive this right. (See also People v. Horn (1989) 213 Cal.App.3d 701.)

BAIN ERROR (People v. Bain (1971) 5 Cal.3d 839.) The prosecutor may not offer his personal opinion that defendant is guilty unless he explicitly states that such opinion is based in the trial evidence.

BEAGLE-CASTRO MOTION (People v. Beagle (1972) 6 Cal.3d 441; People v. Castro (1985) 38 Cal.3d 301.) When a defendant has one or more prior felony convictions, on his or her motion the trial court must exercise discretion under Evidence Code section 352 whether to permit impeachment of defendant with any or all of the priors, using the factors identified in Beagle.

BLAKELY ERROR (Blakely v. Washington (2004) 524 U.S. 296 [124 S.Ct. 2531, 159 L.Ed.2d 403].) When the court uses a fact (other than the fact of a prior conviction) neither proven to the jury nor admitted by defendant to impose a sentence beyond the statutory maximum sentence permissible based on the jury's verdict and/or defendant's admissions, the court violates defendant's Sixth and Fourteenth Amendment rights.

BOYKIN-TAHL ERROR (Boykin v. Alabama (1969) 395 U.S. 238 [89 S.Ct. 1709, 23 L.Ed.2d 274]; In re Tahl (1969) 1 Cal.3d 122.) A valid guilty plea requires advisement and express waiver by defendant of the fundamental rights to jury trial, to confront and cross-examine witnesses, and against self-incrimination, as well as understanding the nature of the charge and the direct consequences of the plea.

BRACAMONTE MOTION (People v. Bracamonte (1981) 119 Cal.App.3d 644.) When a defendant is charged with a "status" enhancement (such as having a prior conviction or having committed a crime while on bail in another case), he or she may move for bifurcation of the trial proceedings so that the jury deciding the current charge is not prejudiced by being informed of the "status" enhancing allegation. (See also People v. Calderon (1994) 9 Cal.4th 69.)

BRADY MATERIALS (Brady v. Maryland (1963) 373 U.S. 83, 88 [83 S.Ct. 1194, 10 L.Ed.2d 215].) Due process requires the prosecution to disclose exculpatory evidence that is material to the defendant's guilt or innocence, or to punishment. This duty includes disclosure of material evidence impeaching prosecution witnesses. Exculpatory evidence is material if it creates a reasonable probability that the outcome of the trial would have been different had the evidence been disclosed.

CERTIFIED PLEA (Pen. Code, § 859, subd. (a).) A felony plea can be taken by a magistrate in municipal court, and upon acceptance of the plea, the magistrate certifies a copy of the proceedings to the superior court where judgment will be pronounced. Effective as guilty plea in superior court. (People v. Burns (1993) 20 Cal.App.4th 1266.)

CHAPMAN STANDARD (Chapman v. California (1967) 386 U.S. 18 [87 S.Ct. 824, 17 L.Ed.2d 705].) When an appellant establishes the lower court proceedings contained error impacting his or her federal constitutional rights, the error requires reversal unless the prosecution can establish it was harmless beyond a reasonable doubt.

CRAWFORD ERROR (Crawford v. Washington (2004) 541 U.S. 36 [124 S.Ct. 1354, 158 L.Ed.2d 177].) A violation of the Sixth Amendment right to confrontation occurs where the government introduces "testimonial" out-of-court statements against the accused and where there has been no prior opportunity of cross-examination, overruling the"indicia of reliability" test set forth in Ohio v. Roberts (1980) 448 U.S. 56, 65 [100 S.Ct. 2531, 65 L.Ed.2d 597], which allowed such statements if they were reliable.

CRUZ/VARGAS WAIVER (People v. Cruz (1988) 44 Cal.3d 1247; People v. Vargas (1990) 223 Cal.App.3d 1107.) As a part of the plea agreement, defendant agrees that should s/he fail to appear at sentencing, a greater term can be imposed by the sentencing court. Defendant must be fully advised of, and waive, right to withdraw plea under Penal Code section 1192.7.

CUNNINGHAM In Cunningham v. California (2007) 549 U.S.270 [127 S.Ct. 856, 166 L.Ed.2d 856], the Supreme Court partially invalidated California's determinate sentencing law. It held that, because the existence of an aggravating factor is mandatory to impose the upper term under Penal Code section 1170, such a factor must be found by a jury beyond a reasonable doubt. See also BLAKELY.

DOYLE ERROR (Doyle v. Ohio (1976) 426 U.S. 610, 618 [96 S.Ct. 2240, 49 L.Ed.2d 91, 98].) The prosecution is not allowed to impeach a defendant's exculpatory statements by referring to defendant's having remained silent after receiving Miranda warnings.

ESTEYBAR MOTION (Esteybar v. Municipal Court (1971) 5 Cal.3d 119.) A motion to reduce a wobbler to a misdemeanor pursuant to Penal Code section 17, subdivision (b).

FARES MOTION (People v. Fares (1993) 16 Cal.App.4th 954, 958; Pen. Code, § 1237.1.) When the trial court miscalculated the presentence credits award, before the issue can raised in the Court of Appeal, appellant must first file a formal motion in the trial court to attempt to correct the error. Appellant is not precluded from initially attempting to correct the error through an informal letter (People v. Clavel (2003) 103 Cal.App.4th 516, 519, fn. 4), but if the informal request is denied, appellant must pursue a formal motion in the trial court before raising the matter in the Court of Appeal.

FARETTA RIGHTS (Faretta v. California (1975) 422 U.S. 806 [95 S.Ct. 2525, 45 L.Ed.2d 562].) Upon a basic showing of competence, a criminal defendant is entitled, on demand, to represent himself or herself. (But see Martinez v. Court of Appeal of California, Fourth Appellate Dist. (2000) 528 U.S. 152 [120 S.Ct., 145 L.Ed.2d 597] holding that there is no federal constitutional right to self-representation on appeal.)

FRANKS HEARING (Franks v. Delaware (1978) 438 U.S. 154 [98 S.Ct. 2674, 57 L.Ed.2d 667].) Upon a sufficient prima facie showing, in conjunction with a motion to suppress evidence, a defendant is entitled to a hearing at which to present evidence controverting the information provided in the search warrant affidavit (a motion to "traverse" or "quash" the warrant.)

GRIFFIN ERROR (Griffin v. California (1965) 380 U.S. 609 [85 S.Ct. 1229, 14 L.Ed.2d 106].) A prosecutor is not permitted, either expressly or by direct implication, to comment in the presence of the jury on a defendant's exercise of the right against self-incrimination.

HARVEY WAIVER (People v. Harvey (1979) 25 Cal.3d 754.) Absent a waiver by defendant, a sentencing court is not permitted to rely upon information relating to counts dismissed in accordance with a plea bargain.

HITCH-TROMBETTA MOTION (People v. Hitch (1974) 12 Cal.3d 641; California v. Trombetta (1984) 467 U.S. 479 [104 S.Ct. 2528; 81 L.Ed.2d 413].) Upon a showing that the loss or destruction by law enforcement of exculpatory evidence infringes on defendant's due process rights, the defendant may seek sanctions ranging from dismissal to suppression of certain evidence to favorable jury instructions.

IMPERFECT SELF-DEFENSE (People v. Flannel (1979) 25 Cal.3d 668.) Defendant had a subjective but unreasonable belief in the need to protect himself or others from deadly harm or great bodily injury.

KURTZMAN ERROR (People v. Kurtzman (1988) 46 Cal.3d 322.)
Instructing the jury so that the jury is precluded from deliberation on necessarily included offenses unless the jury first acquits defendant of the greater offense. Kurtzman h eld that Stone v. Superior Court (1982) 31 Cal.3d 503 does not prohibit the jury considering or discussing a lesser offense before returning a verdict on a greater offense, but the jury must first unanimously agree defendant is not guilty of a greater crime before returning a verdict on a lesser offense.

LEON "GOOD FAITH" EXCEPTION (United States v. Leon (1984) 468 U.S. 897 [104 S.Ct. 3405, 82 L.Ed.2d 677].) Where a search and seizure of evidence has been accomplished pursuant to a warrant which the defendant can show was not supported by probable cause or was in some other way defective, the evidence seized may nonetheless be admissible if the officer executing the search warrant reasonably and in good faith believed the warrant was valid.

MARSDEN MOTION (People v. Marsden (1970) 2 Cal.3d 118.)
When defendant expresses to the court a desire to have new counsel appointed, the court must give the defendant the opportunity to articulate the reasons in support of the request in order to properly exercise discretion whether to relieve existing counsel. (But see People v. Ortiz (1990) 51 Cal.3d 975, holding that a trial court may not require an indigent criminal defendant to demonstrate inadequate representation by his retained attorney, or to identify an irreconcilable conflict between them, before it will approve the defendant's timely motion to discharge his retained attorney and obtain appointed counsel.)

MELENDEZ-DIAZ In Melendez-Diaz v. Massachusetts (2009) 557 U.S. __ [129 S.Ct. 2527; 174 L.Ed.2d 314], the United States Supreme Court held that a defendant's Sixth Amendment right of confrontation is violated when a prosecutor submits a chemical drug test report without the testimony of the scientist who performed said test.

MIRANDA RIGHTS (Miranda v. Arizona (1966) 384 U.S. 436 [86 S.Ct. 1602, 16 L.Ed.2d 694].) Before engaging in custodial interrogation of a crime suspect, a police officer must advise the suspect of his or her rights against self-incrimination and right to counsel.

MORRISSEY HEARING (Morrissey v. Brewer (1972) 408 U.S. 471 [92 S.Ct. 2593, 33 L.Ed.2d 484].) Morrissey established minimal due process requirements in parole revocation proceedings including an informal hearing to assure the violation is based on verified facts.

MURGIA MOTION (Murgia v. Municipal Court (1975) 15 Cal.3d 286.)
Defendant may be entitled to a dismissal of criminal charges upon a showing of selective prosecution for improper purposes, amounting to a violation of the right to equal protection of law.

NICKEL PRIOR Pursuant to Penal Code section 667, subdivision (a), a consecutive five year term must be ordered for each prior serious felony separately brought and charged, where the current case includes a serious felony conviction. The trial court has no power to strike a serious felony prior in the interest of justice.

NOLT "Not Opposed to Local Time." The prosecution's representation that it will not oppose a grant of probation that includes local custody.

ONE STRIKE LAW Alternate sentencing scheme providing for life sentences under certain circumstances for certain sex offenses, as delineated in Penal Code section 667.61.

PITCHESS MOTION (Pitchess v. Superior Court (1974) 11 Cal.3d 531.)
Upon a proper prima facie showing by a defendant charged with a crime against a law enforcement officer (such as resisting arrest), the defense may be entitled to discovery of complaints by other people against the officer in order to try to show a pattern of aggressive behavior by the officer. (See also City of San Jose v. Superior Court (1993) 5 Cal.4th 47, describing the codification of Pitchess motion procedures and privileges, i.e., Evidence Code section 1043 applies to any case in which the defendant can show good cause for the discovery, materiality to the subject matter involved in the pending litigation, and reasonable belief that the governmental agency identified has the records or information from the records.)

POPE-FOSSELMAN STANDARD (People v. Pope (1979) 23 Cal.3d 412; People v. Fosselman (1983) 33 Cal.3d 572.) These are the foundational cases for the definition of the standards of performance of counsel for use in evaluating a claim of ineffective assistance of counsel. (See also Strickland v. Washington (1984) 466 U.S. 668 [104 S.Ct. 2052, 80 L.Ed.2d 674].)

RAMEY WARRANT (People v. Ramey (1976) 16 Cal.3d 263.) Absent an arrest warrant or exigent circumstances, the arrest of a crime suspect in his or her own home is unlawful.

RICARDO M. TIME (In re Ricardo M. (1975) 52 Cal.App.3d 744.) A short term commitment to juvenile hall imposed as a condition of probation in a juvenile delinquency case.

ROMERO MOTION (People v. Superior Court (Romero) (1996) 13 Cal.4th 497.)
The sentencing court has discretion to strike prior conviction allegations although the case was charged under the "Three Strike" statute (Pen. Code, § 667, subds. (b)-(i).)

SERNA MOTION (People v. Serna (1985) 40 Cal.3d 239.)
A delay of more than one year between an arrest and the filing of misdemeanor charges is presumptively prejudicial and 6th Amendment rights attach. (But see People v. Belton (1992) 6 Cal.App.4th 1425.)

SLOW PLEA (Bunnell v. Superior Court (1975) 13 Cal.3d 592.)
A court trial in which the defendant is advised of the same rights that would be attendant to a guilty plea and which the court indicates the high probability of a guilty verdict; however, issues that would have been waived by an actual guilty plea are not waived and are preserved for appeal.

"SOME OTHER DUDE DID IT" (SODDI) DEFENSE (People v. Hall (1986) 41 Cal.3d 826, criticizing the Mendez-Arline test.) A request for instructions on third party culpability.

STARE DECISIS DOCTRINE (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450.) All California courts exercising inferior jurisdiction are required to follow decisions of courts exercising superior jurisdiction. When there is a conflict of appellate decisions, stare decisis does not apply. The inferior jurisdiction can and must choose between the conflicting decisions.

TERRY STOP (Terry v. Ohio (1968) 392 U.S. 1 [88 S.Ct. 1868, 20 L.Ed.2d 889].) Police may perform a pat down search for weapons where there is reason to believe the suspect is armed and dangerous.

THREE STRIKES LAW Alternate sentencing system in Penal Code section 667, subdivisions (b) through (i). Such provisions provide for a life sentence for any third felony, where a person has two prior serious or violent felonies (see Penal Code for sentencing specifics.) Where a person has one prior serious or violent felony conviction, statutory terms for current convictions are doubled, and credits are limited to 20%.

VICKERS HEARING (People v. Vickers (1972) 8 Cal.3d 451.)
An evidentiary hearing held to establish the facts for a violation of probation. (Vickers extended the due process rights of accused parole violators in Morrissey to accused probation violators.)

WATSON STANDARD (People v. Watson (1956) 46 Cal.2d 818.)
When appellate counsel establishes error which does not rise to the level of the Chapman standard (and is not one of those rare types of error which is reversible per se), reversal is not required unless the appellant can show the error resulted in a miscarriage of justice, namely that absent the error a more favorable result for the defendant was reasonably probable.

WENDE-ANDERS BRIEF (People v. Wende (1979) 25 Cal.3d 436; Anders v. California (1967) 386 U.S. 738 [87 S.Ct. 1396, 18 L.Ed.2d 493].)
When appellate counsel has reviewed the entire record and cannot locate any arguably meritorious issues, counsel should not take a position adverse to his or her client, but should file a pleading directing the court to any potential issues, and requesting that the appellate court review the record for possible error in the court below.

WEST PLEA (People v. West (1970) 3 Cal.3d 595.) West is the seminal case discussing the legality of plea bargaining in California, and is cited for many, many legal propositions. However, a "West plea" is most likely to stand for a plea which "does not constitute an express admission of guilt but only a consent to be punished as if guilty." (People v. Bradford (1997) 15 Cal.4th 1229, 1374.) Typically, the defendant stipulates to a factual basis for the plea. (See, e.g., People v. Westbrook (1996) 43 Cal.App.4th 220, 223 [factual basis from grand jury transcripts].)

WHEELER MOTION (People v. Wheeler (1978) 22 Cal.3d 258.) Prosecutor may not use peremptory challenges to remove potential jurors who are members of a cognizable group based on group bias.

YURKO ERROR (In re Yurko (1974) 10 Cal.3d 857.) Boykin-Tahl requirements apply to enhancing allegations.

352 MOTION (Evid. Code, §352.)
A motion to exclude evidence on the basis of undue prejudice and other criteria listed in the statute.

402 HEARING (Evid. Code, §402.)
A hearing held outside the presence of the jury to decide the admissibility of evidence.

This article originally appeared in a newsletter published by the Central California Appellate Project (CCAP) and ADI wishes to acknowledge and thank CCAP for its substantial contribution.

updated as of October 12, 2010

 

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