While practicing criminal defense, often in court you will hear people refer to Criminal Law Terms and Criminal Defense Motions by a case name. This might help explain what some of those mean. The following is a list of Criminal Law Terms and Criminal Defense 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 Criminal Law Terms and Criminal Defense Motions 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.
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. As a Criminal Law Terms and Criminal Defense Motions term, it applies to plea bargains.
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.
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).
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.) While this is one of the Criminal Law Terms and Criminal Defense Motions well known for self representation, the courts have a “Faretta Waiver” instead of a motion for this situation.
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. This is a very common case and will continue to be part of the Criminal Law Terms and Criminal Defense Motions all over the United States. This, like the Terry case below, is definitely one of the Criminal Law Terms and Criminal Defense Motions that comes up most often in search and seizure motions.
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. This may be the most famous of all the Criminal Law Terms and Criminal Defense Motions terms.
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. While not a case, or even part of the code, is it one of many Criminal Law Terms and Criminal Defense Motions that most defense lawyers are familiar with.
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. This is not commonly used, unlike the other Criminal Law Terms and Criminal Defense Motions, except as a joke.
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. This “stop and frisk” case is famous in search and seizure, and is a major one of the Criminal Law Terms and Criminal Defense Motions in a normal defense practice.
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.
These Criminal Law Terms and Criminal Defense Motions will change as new legal decisions come out and become used in a criminal defense practice. But having a list of all of these is handy for criminal law attorneys and criminal defense lawyers in Orange County, and elsewhere in California. We are experienced Criminal Defense Lawyers in Irvine, and please contact our firm if you have questions about any of the above terms. We are here to help you.