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 LEGAL
LINGO |
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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 [20 L.Ed.2d 476]).
When two or more defendants are jointly charged, and one has
made an extra judicial statement which inculpates a codefendant,
that codefendant may move for severance on that basis; if
the statement cannot be redacted to remove prejudice to the
codefendant, 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. ___ [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 [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 (Penal Code §859(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 [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) ___ U.S. ___ [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 PC § 1192.7.
DOYLE ERROR (Doyle v. Ohio (1976)
426 U.S. 610, 618 [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 §17(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 [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 People v. Martinez (2000) 528 U.S. 152 [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 [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 [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 [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 jury is precluded from deliberation
on necessarily included offenses unless the jury first acquits
defendant of the greater offense. Kurtzman held that Stone
v. Superior Court (1982) 31 Cal.3d 503 does not prohibit
the jury considering or discussing lesser offense before returning
a verdict on greater offense, but jury must first unanimously
agree defendant is not guilty of greater crime before returning
a verdict on lesser offense.
LEON "GOOD FAITH" EXCEPTION (United
States v. Leon (1984) 468 U.S. 897 [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.)
MIRANDA RIGHTS (Miranda v. Arizona
(1966) 384 U.S. 436 [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 [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 right to equal protection of law.
NOLT "Not Opposed to Local Time."
The prosecution's representation that it will not oppose a
grant of probation that includes local custody.
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.)
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 (Romero v. Superior Court
(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(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 [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.
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 [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, 1334.) 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 (Evidence Code §352)
A motion to exclude evidence on the basis of undue prejudice
and other criteria listed in the statute.
402 HEARING (Evidence 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.
ADI added a few more items and updated the article in October,
1997.
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