Category Archives: Criminal Law

CA Supremes OK’s Retroactive Sex Offender Registration/Disclosure in Doe v Harris

In a long awaited decision Monday in Doe v. Harris, the California Supreme Court determined that under California law, “the general rule in California is that a plea agreement is ‘deemed to incorporate and contemplate not only the existing law but the reserve power of the state to amend the law or enact additional laws for the public good and in pursuance of public policy. . . .’ (Gipson 117 Cal.App.4th at p. 1070.) ”

Thus, according to the Doe Court “It follows, also as a general rule, that requiring the parties’ compliance with changes in the law made retroactive to them does not violate the terms of the plea agreement, nor does the failure of a plea agreement to reference the possibility the law might change translate into an implied promise the defendant will be unaffected by a change in the statutory consequences attending his or her conviction. To that extent, then, the terms of the plea agreement can be affected by changes in the law. “  (Emphasis added).

The 6-1 decision, which answers a question certified by the Ninth Circuit, resolves whether a change to existing law (specifically, the passage of “Megan’s Law”) which occurred post-plea can be applied to a defendant who pled guilty under the then-current version of P.C. 290 (California’s sex offender registration statute).

While a bad ruling from the criminal defense perspective, it’s notable that the California Supreme Court’s interpretations of law on certified questions have been proven wrong by higher courts before–most recently in Hollingsworth v. Perry, the Proposition 8 case, where the U.S. Supreme Court ultimately found that for federal purposes the initiative proponents could not defend the measure when the state refused to do so, contrary to what the California Supreme Court determined in a certified question ruling requested by the Ninth Circuit.

–CAD

 

 

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Filed under Appellate, California Supreme Court, Criminal Law, Sex Crimes

Cal Supremes To Rule On Retroactivity of Sex Offender Registration Monday

Earlier today the California Supreme Court issued a Notice of Forthcoming Filing that it will render its decision in Doe v. Harris as well as an automatic death penalty appeal (in People v. Nunez/Satele).   The Doe ruling is expected to answer a question certified to the Supremes by the Ninth Circuit–namely, whether “Under California law of contract interpretation as applicable to the interpretation of plea agreements, does the law in effect at the time of a plea agreement bind the parties or can the terms of a plea agreement be affected by changes in the law?”

In English, the question is whether defendants who pled guilty to offenses which were not registrable sex offenses pursuant to P.C. 290 at the time of their plea can revisit their plea agreements (or have their requirement to register vacated) based on post-plea changes to state and federal law which dramatically expend the scope of offenses which require lifetime registration.

The opinion should be available at 10 a.m. Monday via the Court’s Web site.

-CAD

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Filed under Appellate, California Supreme Court, Criminal Law, Sex Crimes

U.S. Supreme Ct. to Consider One of My Cases at 5/23 Conference

Well, this made my day :)  Just learned that the Petition for a Writ of Cert which I filed in Kyle Ray DeCoteau v. United States (Case No. 12-01285) will be considered by the U.S. Supreme Court at its May 23, 2013 conference.    It’s my first request for U.S. Supreme Court review and involves some interesting issues regarding the appropriateness (or as we believe, the lack thereof) of a District Court judge denying a certificate of appealability in a post-trial review motion when one of the grounds of ineffective assistance has to do with the trial counsel’s failure to object to the  District Court Judge’s alleged misconduct.

While it’s nice the United States waived their right to respond, my client and I have no illusions about the odds against the High Court deciding to take the case.  Still, I’m honored and proud it’s gotten this far.

–CAD

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Filed under Appellate, Criminal Law, U.S. Supreme Court

Cal. Sup. Ct Finally Sets Oral Argument On Case Involving Retroactive Sex Offender Registration

Here’s some good news for those hit with a requirement to register as a sex offender under P.C. 290 retroactively following their conviction (in some cases, decades earlier) for certain crimes.  As we reported two years ago, the Ninth Circuit asked the California Supreme Court to clarify “Whether, under California law, the default rule of contract interpretation is (a) that the law in effect at the time of a plea agreement binds the parties, or (b) that the terms of a plea agreement may be affected by changes in law” in Doe v. Harris.

Almost exactly two years later, the California Supremes have finally gotten around to setting the matter for oral argument, which will take place on Wednesday April 3,  2013 in Los Angeles.  Under the California Constitiution, the justices have 90 days to issue an opinion following oral argument (under threat of having their pay docked) so we should have a ruling on the question shortly thereafter.

–CAD

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Filed under 9th Circuit, Appellate, California Supreme Court, Criminal Law, Sex Crimes

Hightower Update/First Round of Citations Reaches The Court

Today, I had the honor and pleasure of appearing at the San Francisco Superior Court on behalf of several clients who were the first to be cited (and we contend, illegally and unlawfully arrested) under the San Francisco anti-nudity ordinance.   Of course, the federal litigation continues–we expect to be filing the amended complaint, pursuant to Judge Chen’s instructions, within the next few weeks.  In the meantime, the City seems determined to waste police and prosecutorial resources harassing nudists than dealing with issues like gang activity in the Mission.

–CAD

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Filed under Criminal Law, Hightower v City and County of S.F.