We are pleased to announce the winners of this years competition!
In People v. Garcia, the California Supreme Court addressed the legality of the compelled waiver, as a condition of probation, of “any privilege against self-incrimination” for probationers participating in mandatory sex offender treatment. The Court also addressed the propriety of polygraph examinations and the waiver of psychotherapist-patient privilege.
The Court found that because the defendant’s responses during therapy were compelled within the Fifth Amendment, they could not “lawfully be used against him in a criminal proceeding,” and thus did not violate the Fifth Amendment. The Court also rejected the claim that conditioning probation on the waiver of psychotherapist-patient privilege violated the constitutional right to privacy.
The decision noted the large number of sex offenders, and the challenges in managing and supervising them. The decision stressed the importance of sex offender treatment, citing an up to 40 percent reduction in recidivism for those offenders successfully completing treatment. Justice Cuellar writes that, “in light of the relevant constitutional provisions and the purpose of Chelsea’s Law, the probation conditions challenged here enable those charged with monitoring the probationer to obtain the information they need, while otherwise safeguarding the probationer’s privacy and protecting the probationer from compelled self-incrimination.”
Deputy Attorney General Leif Dautch, a member of the State Bar Criminal Law Section Executive Committee, represented the respondent in the Garcia case.
The Criminal Law Journal is a publication of the State Bar Criminal Law Section. Please submit any article submissions, or even ideas for articles. The articles should be approximately 500 words. Articles discussing practice tips are welcome and encouraged. An upcoming issue will focus upon the immigration law in the criminal courts. Please send your submissions or questions to Ellen Louie, Section Coordinator, Office of Education at email@example.com.
By Timothy E. Warriner, Chair, Criminal Law Section Executive Committee
Many new laws affecting the practice of criminal law have been enacted, and will become effective January 1, 2017. One of them, AB 813, is of particular importance to California’s immigrants. It adds Section 1473.7 to the Penal Code.
Under previous law if a non-citizen discovered, many years after accepting a plea bargain, that the conviction triggered an adverse immigration consequence, there was often no avenue for relief because a habeas corpus petition could only be sustained if the individual was in “constructive custody” –i.e., still serving a sentence, or on probation or parole. AB 813, signed by the Governor, solves this problem. It creates a right for a person no longer imprisoned or restrained to prosecute a motion to vacate a conviction or sentence due to “prejudicial error damaging the moving party’s ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of a plea of guilty or nolo contendere.” It also allows for a motion to vacate where “[n]ewly discovered evidence of actual innocence exists that requires vacation of the conviction or sentence as a matter of law or in the interests of justice.”
Upcoming issues of the Criminal Law E-Bulletin will discuss other new laws affecting criminal practice.
Make a difference and network with other criminal law practitioners. Apply to serve on the executive committee of the Criminal Law Section of the State Bar of California.
The deadline to submit applications for appointment to the Public Law Section executive committee is January 27, 2017. For more information visit: http://cc.calbar.ca.gov/
Criminal Law Section members can get participatory MCLE credit for viewing programs online, including webinars put on by the Criminal Law Section that you may have missed. Choose from Criminal Law programs.
We're very grateful for your membership in the Section.
As a token of that, we're offering self-study MCLE credit in the areas of Legal Ethics, Competence Issues, and Recognition and Elimination of Bias in the Legal Profession and in Society. The programs are posted in our Member's Only Area.
Simply watch the programs and keep track of having done so. You can report this to the State Bar when it's time to demonstrate your compliance with the MCLE requirements.
The Criminal Law E-Bulletin is sent each month to members of the Section. The E-Bulletin often includes articles of lasting interest, and we have compiled some of these from 2012 on and posted them in the Members Only Area. Section members can access the articles by clicking on the link and signing in to My State Bar Profile.
Continuing Education of the Bar, California (CEB) is extending some special discount offers to our section. As a member of the Section, you're eligible for:
Information about the section dues rebate program can be found on the CEB Web site.
Social media, anyone? The Sections and the California Young Lawyers Association (CYLA) now have pages on Facebook, Twitter and LinkedIn where we can keep you up-to-date on our latest news and events.
We're also looking forward to interacting with a wider community and reaching out to people who are not currently members.
We invite you to "Like" us and follow our "Tweets."
And by the way, the CYLA definition of "young" is any California attorney under the age of 36 or in their first five years of practice.
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Criminal Law Section
The State Bar of California
180 Howard Street
San Francisco, CA 94105-1639