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A lil Juice Before Bed

My beliefs on domestic violence can be, and have been, shocking to many.  I'll refrain from expressing them here.  Because of said beliefs, JJC's policy is no reports, links to, or mentions of alleged DV unless there is a super fucked up picture.  I mean, I would remiss to not post about the Chris Brown Rhianna incident after seeing that photo.  When I saw a few days ago that Terrance Howard was being accused of DV, I intentionally did not post about it.

Until today.

Not the worst alleged DV pic I've ever seen. Looks like a paper cut compared to Rihanna.  But a black eye is a black eye.  Bummy.

Mandatory registration for rape of intoxicated person UNLESS that person is your spouse??? WTF

Another reversal on an instruction issue today which taught me something I did not know, and led me to an opinon that is the most illogical farkata piece of shit opinion I've ever read..."with all due respect" to the now Chief Justice Cantil-Sakauye and Judge Raye.

This case today is from LA County, again.  What had happened wuz: D is charged with a DV and failure to register. Hung jury on the DV. Went down on failure to register.

D's prior sex offense was a spousal rape. Apparently, "[N]ot all spousal rape requires sex-offender registration."  (People v. Mason.)  Indeed, section 290 requires registration for a conviction of spousal rape if it involves the use of force or violence for which the person is sentenced to the state prison.  (Penal Code section 290(c).) So, if you rape your spouse while she is unconscious or asleep or too intoxicated no mandatory registration (sure the judge can still eff you under discretionary registration).

Yet, if the victim is not your spouse, and you rape said victim in her sleep or when she is unconscious, or intoxicated, mandatory registration for life.  (Penal Code section 290(c) [requiring registration for a violation of subdivisions (1)-(4) or (6) of section 261(a) but only 262(a) if it involves force AND a prison sentence.])  WTF?  Sounds like a pretty good equal protection clause claim if you are required to register for raping a non-spouse.  Is there any rational basis to distinguish between raping one's spouse in her sleep versus raping one's girlfriend of 10 years in her sleep? Am I missing something? Apparently I am.  According to this farkata opinion from 2010, there is a rational basis to distinguish to the groups because, wait for it:

" As our Supreme Court recognized in Hofsheier, section 290 registration serves 'to notify members of the public of the existence and location of sex offenders so they can take protective measures.' ( Hofsheier, supra, 37 Cal.4th at p. 1196, 39 Cal.Rptr.3d 821, 129 P.3d 29.) This rationale serves a legitimate purpose in the case of sex offenders, such as defendant, who commit their crimes against strangers and acquaintances. However, sex offenses against spouses involve victims with preexisting and presumably significant relationships with the perpetrators. Since the spousal victim has a unique relationship with the perpetrator, the victim does not require public notice to become aware of the danger of repeated sexual assault." (People v. Jeha (2010) 187 Cal.App.4th 1063, 1077.)

What. the. fuck.   Um, 1) isn't the whole point of 290 to protect the public, you just acknowledged this.  Is it so clear that you do not even need to state your implicit assumption in this opinion that it is just common knowledge that a D who rapes his spouse is no danger to any one else in the public???? I.e. if D is raping his wife no need to notify the public because everyone knows that people who rape their wives won't sexually assault non wives.  Someone willing to rape his wife respects the marital bond so much so that he will not rape outside his marriage.  Alllllrgith.  2) If the issue is that D doesn't need to register because "the victim does not require public notice" then why does D in any case have to register? 3) aren't we really working with the false binary here that there are Ds who rape "strangers and acquaintances" and D's who rape spouses? What about, oh I don't know, the shit ton of people who rape slash molest family members??? Don't these people have "preexisting and presumably significant relationships with the perpetrators (and those folks have mandatory registration")??? Also, following the earlier logic, if D rapes his own daughter or nephew or family member, why does the whole public need to know? Can't we just follow the same logic above, that if you rape your wife you only rape your wife and wouldn't move on to a non wife, and assume that he will only rape inside the family, in which case a mass email to family's googlegroup would suffice for notice instead of Megan's law?   4)Anyone??? This is some bullshit.  I'd like to note that my solution is not make people who rape their spouses by intoxication register.  It is, rather, abolish all registration because that shit is stupid and doesn't prevent crime.  That said, I do cruise Megan's law. Just in case. Kidding. Kind of.

Sidenote, I am SUPER anti the current form of the rape by intoxication law because I think a person should only be guilty of that crime if  he subjectively believed (however unreasonable) that CW was too intoxicated to consent.  I would make it an affirmative defense that he was too intoxicated to know whether CW was too intoxicated and/or to consent himself.   Seems very unfair that you are branded a sex offender because you got shitfaced, blacked out, and next thing you know some girl who was equally as blacked out claims she was too drunk to consent. If it is a defense for her it should be one for you too.

In this case, the court did not instruct the jury that they needed to decide whether, and the DA need to prove beyond a reasonable doubt that, Mr. Mason's prior spousal rape involved force or fear.  Interestingly, D's prior definitely included allegations of force.  The AG argued that Mr. Mason invited the error by failing to ask for the correct instruction.  Court of Appeal's response (hereafter in every JJC post "CAP"): this isn't applicable where, as here, the instruction was an incorrect statement of law. No shit!

But what about the harmless error issue? Well, no evidence came in at trial that could have established that the prior involved force. At the px, which the CAP had the transcript of, it came out that the prior did invovle force.  Luckily, the prejudice analysis does not take into account things outside what was before the jury.  In other words, CAP doesn't ask "well, what if the prosecutor had done their job right, couldn't they have easily proved force?"  They do ask: "if the jury had been instructed properly, could the jury have reasonably concluded that the prior involved force?"  The answer was no.  DA and the judge botched this one. I will refrain from speculating whether the defense attorney knew about the error and let it happen or did not know either.  In any event, hopefully this guy gets CTS now.

I love me a good Mocha!

Cute corgi puppy seeing her reflection in the mirror for the first time.  Cutest part at 53 seconds.  Shoutout to a JJC reader for the tip!!  Sometimes videos of corgi puppies make me sad because I rescued Jane Doe at 1 years old and I think she would have been the world's cutest puppy.  But, then I remember I'm watching a video of a corgi puppy and feel happy!

On DA's who voir dire on law and order

I can remember before I was an attorney watching a criminal trial. The DA talked about law and order and CSI and made a joke that this is not TV, we all understand that right???  I did not think anything of it and found it charming. Barf.

When I later became a criminal defense attorney, it became very apparent to me why DAs love to use this in voir dire.  I have watched a lot of law and order SVU.  I yell at the tv screen because the coppers are always violating the constitution and falsely accusing someone but it is in this spin that it all seems perfectly reasonable. One thing that is clear after you watch episode after episode is that, by the end, you are always convinced, beyond a reasonable doubt, who is guilty and why.

When DA's reference law and order, and also CSI, they do so to tell the jurors that what happens in those cases: where it is clear that the defendant is guilty, where there is actually scientific evidence that is reliable of his guilt, where cases are thoroughly investigated, is not how it will be here.  They want to plant that seed that when jurors begin to deliberate and find themselves asking why didn't they do this or that? the juror will simply say, well, this isn't law and order, and that's ok.

I never addressed or pointed out to jurors why the DA does this. The more I have thought about it though, it might be worth pointing out the jury if you can do so in a way that you don't look like a total asshole and you don't get objected to.

It is just totally offensive that they are trying to be charming while subliminally poisoning the minds of jurors into this belief that it is ok to take away someone's liberty when you aren't really sure and the evidence isn't really there.

commit crime to prevent it?

I am very anti the government breaking the law to enforce it.  There is nothing that pisses me off more than seeing a cop parked in the no parking zone of the court house because he's too fucking lazy to park in the lot across the street when he has to come to testify at court. (VERY TRUE STORY).  In fact, I once spent 5+ hours to complain about these stupid police officers who parked in a red zone waiting for unsuspecting people to pull up in the bus zone to drop off their loved ones at BART at which point they swoop in and issue $100 tickets.  The complaint process included telling these effing coppers they were 100% hypocrtical and wrong for doing this, informing them that no, the vehicle code specifically says they are not allowed to park in a red zone unless they are responding to an emergency, avoiding getting arrested in said situation, writing my Transit representative (just imagine how long it took me to discover this person exists), trading phone calls with and getting a hold of the head sergeant in charge who told me I was right (didn't realize how much I would love to hear those words from a cop), only to have my blood pressure go through the roof when, two weeks later, dem same ladies were in their same beat up AC sheriff's truck in the same red zone.

So, you can imagine my anger when I saw this headline: "

Exclusive: FBI allowed informants to commit 5,600 crimes

The feds gave informants permission to break the law 5685 times in a single year.  Barf.  Dear Government: If you  have break the law to enforce it you suck.  And also, you demonstrate there is no virtue in following the law if you have no problem breaking it.

Reality Steve WRONG!!!

1.  This season of the bachelorette has been excruciating.  My husband forces me to watch it. I wish I was kidding. It is so boring.
2.  Reality Steve called it right when Jason did the unthinkable and dumped Melissa at AFTR then asked Molly back right after dumping Melissa because he made a mistake.  When I read the spoiler on Reality Steve I just didn't believe it.
3.  This season, RS assured us that he was 100% confident that Des and Brooks were engaged.  When, last week, we saw Brooks leave the show, RS said that Brooks will come back and never really left.  I tried to get him to admit he knew he was wrong but he didn't take the bait, that lil stinker:

4.  Tonight. Des chose some guy whose name I don't know because I am 100% uninvested in the story.
5.  Yawn. RS, you are soooooo tired. Des, you are sooooo boring.  Husband, can this be the last season we ever watch??? Something tells me no.

Hottie MkHarris says Santa Clara County DA Jeff Rosen Not Guilty!

SCC DA Jeff Rosen was under scrutiny by political foes who claimed he acted illegally and unethically by providing deputy district attorneys with extra leave time to make up for lost wages.  In my opinion, whether you think he did something illegal or wrong depends 98% on whether you are his friend or enemy. 

Personally, as someone who is neither, I don't really care about admin time for public employees.  There are many downsides to being a public employee, especially to being a DA (see e.g. making 100k less than lawyers at big firms).  So the upshot is you get a few extra days off. When your pay gets cut and raises get frozen if the head hauncho can figure out a creative way to make up for it, well, right or wrong, I really could give two fucks.  And apparently the best looking AG in the country Kamala Harris, feels the same way.

Jeff Rosen ran for DA on this campaign of ethics ethics ethics.  Cleanin up dem SCC dirty DAs.  Since taking office there have been quite a few scandals, and he has done everything from saying "we're gonna think long an hard bout dis," to suspension without pay, to firing (jjc worthy juicy details at end of  post).  Overall, I think he has done a good job and I appreciate that he cares about ethics and preventing misconduct.  In addition, check out his campaign platform, most of these things are really important to me: 

• the punishment should fit the crime;
• investigate police involved shootings with integrity and disclosing the facts of the investigation to the public;
• establishing (which he did establish) a conviction "integrity" unit to review claims of innocence and establish standards for best practices in investigation and prosecution, and stating it is "only fair" to consider collateral consequences such as immigration when reviewing cases.

I am tempted to call out some DAs in other counties who shall remain nameless who should think long and hard about their totally entitled ridiculous and straight up racist slash xenophobic policies that are to not only not consider immigration consequences, but to try to fuck people worse because of their status, but I will refrain *kinda*.  

Anyway, these things matter to me, so i'm glad that they matter to him.

Side note, did anyone else know that the Supremeys granted a petition for review on the case that was reversed for Rosen's right hand man, Boyarsky's misconduct? [People v. Shazier (2012) 212 Cal.App.4th 520].  Dear G-d, please do not let the supremes reverse the appellate court in this case.  This poor dude Shazier.  He was SVP'd even though all experts agree that he does not have a diagnosed mental disorder that makes him dangerous to the health and safety of others (i.e. what must be proved for an SVP).  His first trial was a hung jury.  So they try him a second time. He goes down. The appellate court reverse because of prosecutorial misconduct.  Time to let him go? No. They try him a third time.  Then he goes down again.  Now, the court of appeal reversed for prosecutorial misconduct, again.  And the Supremes want to review this shit? Just leave this guy be!!! That they have to keep resorting to misconduct to get a finding of SVP suggests maybe he isn't actually SVP worthy.  

A LIL JUICE for ya:Lisa Rogers, yous effin crazy!
Lisa Rogers' final termination notice

Troy Benson yous a liar!
Benson 08-O-12538 HD Decision
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how to get out of traffic and parking tickets

My brother, a non lawyer, has been sqwaking at me to help him fight two parking tickets he received in new york city.  I spent approximately 6 times the cost of the tickets in my time today helping him.  I report this only because he actually had a defense that I found very amusing.  We all have had clients who point out total minor immaterial mistakes in the police report and then question whether we are good attorneys because we do not think the mistake matters.  For example, the date or time is slightly off, someone's name or birthday is not right, or the street name is spelled wrong.  Well, luckily for my brother, the State of New York has a little rule that there are certain things that must be on a parking ticket and if any of those things involve a "misdescription" you are entitled to a dismissal.  The officer in this case wrote the address where my brother's car was parked as 332 when, in fact, it was 334.  The houses are 30 feet apart.  In a criminal case, I'd say this is immaterial.  Especially because it did not matter in terms of his offense. Due to this lil NYC rule, though, materiality is irrelevant. A misdescription is a misdescription and the citation must include the correct address.  My brother has photos. Bam. A defense.

Helping him inspired this post. He came to me not because I'm a lawyer, but because he knows I have gotten out of MANY parking and/or traffic infractions.

Without admitting or denying whether I am a good driver, I can proudly report that since going to law school, I have been acquitted of the following traffic infractions, and was reimbursed for the following parking violation including the cost of the tow:

• illegal u turn in front of a cop;
• speeding in the speed trap known as all of kings county;
• running a red light;
• blocking a driveway in San Francisco.

Currently, I am fighting a texting and driving ticket where the officer has not submitted his declaration (see below) and it has been 56 days. I do not know how much time they gave him but I'm sending a follow up letter tomorrow.

If I can do it, you can too! Here is how to fight traffic infractions, red light tickets and parking tickets in this order:

Traffic infractions (non red light camera)

Dos and Don'ts when stopped

DO pull over--I am no expert on getting out of 2800s;

DO NOT do anything remarkable or memorable;

DO NOT argue with to cop or deny alleged conduct even if he is lying or wrong;

DO NOT make furtive gestures;

The goal of the interaction when you are stopped is to be run of the mill and forgettable. Of course, the cop will want you to admit liability. I generally answer with the shrug of a shoulders.  How fast were you going? should shrug. You can't make a u turn there! shoulder shrug.  Were you texting and driving? shoulder shrug. 

Dos and Don'ts after you are cited

Write the clerk of the court in advance of your court day respectfully requesting a trial by written declaration.  You must include the "bail" i.e. the cost of the infraction.  Call the court to find out the cost or google it. Doing this in advance of the court date will usually result in the clerk sending you a letter that you do not have to go to court. Here is the form to submit with your letter and bail.  What to write is below.

What to write in your declaration

Infractions are criminal offenses. You are entitled to the presumption of innocence.  This is why it comes in handy to be completely forgettable in your interaction with the officer.  In your declaration you simply state: "I respectfully assert my right to be innocent until proven guilty.  I reserve the right to file a supplemental declaration after reviewing any declaration submitted by a peace officer in this matter."

That is all.  Then just wait and get ready to laugh all the way to the bank.

What happens next

After the clerk gets your declaration, they mail the officer a form for him to fill out and provide the court with his declaration.  If he provides a declaration you are probably fucked. If he does not, the court reviews your assertion of your legal right to the presumption of innocence, nothing from the cop, and waaalah, the beautiful thing we call the criminal justice system results in your "bail" sent back to you. I call it my savings account.

What are the odds the cop will submit a declaration? The truth is, an officer is just not going to remember a random texting and driving ticket he gave 2 months ago.  It is possible he will remember it. It is possible he is willing to lie under oath.  That possibility is much more likely if he sees you in court, vaguely remembers you face, prepares before court by looking up what kind of car you had and checking notes he had.  In my experience, officers are just too lazy or don't care to write declarations and mail them back to the court. It requires some effort.  Thus, trial by written declaration where you provide absolutely no information in your declaration is the way to go.  It also does not require that you waste your time waiting in court to see if he shows.

How to fight red light camera ticket

go to www.highwayrobbery.net and use any and every defense available to you.  I was lucky, neither the cop or redflex machine person showed the day of my red light ticket trial. Thus, I was acquitted without having to resort to some farkakta argument about my 6th amendment rights in a red light ticket case. That ticket was almost $500. I took the refund and laughed all the way to the mobile deposit bank.

How to fight parking tickets

Parking tickets suck because they are not criminal infractions.  There is a rule that the information the ticket itself establishes a prima facie case and it is your burden to rebut that.  I have won more than I should, but not enough, parking tickets in my life.  The tow ticket was pure luck. The officer wrote the wrong address on the ticket where my car was allegedly parked blocking a driveway. (In my defense, I was only partially blocking the driveway, the person could have gotten out, asshole).  Anyway, my car was towed and it was something like $400 to pay for everything.  Luckily, I got it all back when I noticed that the address the officer wrote on the ticket did not exist.  I was honest--of course-in my appeal and did not deny blocking a driveway partially. I simply said that the ticket said I was parked at x address and x address does not exist. I won. And laughed all the way to the bank app on my iphone.

Happy fighting!

DA's and their stripper shoes

Dear JJC readers,

I have passed the following JJC law:  you are a mandated reporter of DAs in their stripper shoes! All you need to do is email juicejusticeandcorgis@gmail.com with "spotted, DA in the following shoes____" and describe e.g. gold platform sparkly heels; cheetah print pumps; open toed clear platforms that light up when you walk (I would not bat an eye). I will do an artist rendering and post said rendering.  No naming names. No naming counties. No problems. Will also accept descriptions of inappropriate clothing.

Heart,
JJC

Movie Review: The House I Live In

The House I Live In is a documentary about the war on drugs in the United States.  You can watch it online through various vendors.  I paid $3.99 to rent it via YouTube.

Here are the most interesting things I learned or relearned from the movie:

• We incarcerate more people per 100,000 people than Saudi Arabia and China, combined.  We have 5% of the population in the world, but 25% of the world's incarcerated population.Since 1980, our prison and jail population has gone from 500,000 to more than 2.3 million.
• We have spent $1 trillion and arrested 45 million people in the war on drugs.
• There are 500,000 people incarcerated in the US for nonviolent drug offenses.
• The film featured folks serving 12 years, 20 years, and, wait for it, LIFE WITHOUT PAROLE for drug offenses.  There are approximately 92 people in Oklahoma serving LWOP for a drug offense because they had two prior offenses.  Note, in California, it was possible until recently for someone to serve 25 to life for a drug offense.
• 2.7 million kids in the US have at least one parent incarcerated.
• When someone is released from prison, he has a conviction so cannot get a job. He is ineligible for federal loans, so he cannot go to college.  He is ineligible for government subsidized housing because of the conviction, and he cannot live with a family member who has subsidized housing because that will disqualify them for their housing.  And we expect this person to do what to make a living and put a roof over his head?
• Clinton sucks.  Not only did he allow ADEPA to pass (not in film), he made it so any felony drug conviction (e.g. possession of marijuana in many states) was a lifetime bar from obtaining welfare.  He enacted a federal version of 3 strikes. 
• A person driving a truck with Arizona plates in Magdalena New Mexico while getting fast food fits the profile of a drug trafficker, according to a deputy in the film.
• There is an extremely lucrative financial interest by the state et al in fighting the war on drugs including:
• police/the state seize cash and cars from suspected drug traffickers, even if that person does not have any drugs in his car, then use those seized goods to buy things like new patrol cars;
• police officers who do drug busts can rack up overtime processing the busts and have much higher arrest and conviction rates than those working homicides or other crimes that require more investigation, which results in a greater likelihood of being promoted.
• The history of the legislation banning drugs demonstrates a concerted effort to justify the incarceration of people of color for fear those people were taking white jobs.  E.g. banning smoking opium in California targeting the Chinese, while the South did not ban it because it was used by rich white folks; e.g. banning marijuana which was associated with Mexicans.
• The detention, arrest, prosecution, conviction, and incarceration of people of color for drug offenses demonstrates the systemic racism within our system because it is grossly disporporitonate to the percentages of users: e.g. black folks make up only 13% of crack cocaine users, but they make up 90% of criminal defendants in crack cocaine prosecutions.  Studies show that black and whites use illicit drugs at the same rates, but blacks are 10.1 times more likely to be sent to prison for a drug offense.  Blacks represent 56% of those incarcerated for drug crimes, even though they are only 13% of the US population.
• at a recent ethics seminar I attended which I will blog about soon, one speaker noted we do not see police doing undercover bust-buys on college campuses, at financial industry events, or on our law school campuses.  I thought this was a very interesting point.  We have no problem with cops sending in informants to poor neighborhoods of color to fight this war on drugs.  Why  do you think they do not send in informants to fraternities? law schools? events for professionals? 
• in 2009, over 500,000 of 1.7 million arrests for US nonviolent drug charges were for mairjuana.  Barf.  

JJC VERDICT: Must watch documentary. Many of the points made I knew, but it is worth knowing the exact statistics.  It was a good film.  

California's Prisoner Hunger Strike

Nearly 30,000 prisoners began a hunger strike on July 8, demanding changes to the inhumane incarceration of as many 4500 people.  Specifically, the issue is over incarcerating folks in segregated or administrative segregation units after a usually arbitrary determination that the inmate is in a gang. In these units, for 22-24 hours a day, an inmate is locked alone in a small cell with no windows, natural light or fresh air.  He is fed small meals lacking nutritional value.  He has little to no  human contact.  The conditions are extremely damaging to the human mind, body and soul. In short, it is torture,.Yet, some guys have been living in these conditions for 10-40 YEARS.

Since the 8th, the number of strikers has gone down from 30k to just over 500.  One man died -- reportedly by suicide, though many dispute that.

According to Rolling Stone (who I proudly support and disagree with the backlash over the cover with the boston bomber dude because the cover reported on a newsworthy story and reminded us that not all terrorists look like Osama Bin Laden), these are the inmates' demands:
1) Stop group punishment.
2)  Abolish the debriefing policy.  I believe this refers to an inmate who was been "validated" as a gang member by the prison who renounces the gang so he can get out of solitary confinement.  To do so, though, he has to tell prison officials everything he knows about the gang.
3)  Comply with national standards on solitary confinement.  Allow inmates some contact with others.  Let those in solitary confinement for 10-40 years out.
4) Give food with nutritional value.
5) Given people in solitary confinement opportunities for programs and privileges.

I do not see why the prison doesn't give in.  Makes no sense to me.

Meanwhile, the US Supreme Court [implicitly] told Jerry Brown sorry buddy, we know you have a very cute corgi,

 but the judges on that 3 judge panel are more convincing than a cute corgi picture and it's time you release 10,000 inmates because the prisons are too overcrowded.  The court explicitly said only that the stay was denied.  My two least favorite justices, Scalia (don't get me started on his fat hypocritical ass) and Thomas (or his either), dissented and claimed that 10,000 of the inmates to be released were convicted of "serious" crimes.  Ridiculous.  Serious crimes like parole violations for not updating their addresses? Serious crimes like having a lot of marijuana and some cash in "denominations consistent with sales"?  Serious crimes like a 4th DUI in 10 years? Totally exaggerated and ridiculous. I doubt if Scalia and Thomas have any idea what relatively minor offenses would result in someone being in a California state prison.

How are they going to pick the 10k? Narrow folks down by seriousness of offense and time left to serve and do it randomly?

How to draw a corgi in three easy steps

Totally easy:



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us,people and in touch, oh my!

stressed out because I've been so busy my tabmags have been accumulating without me reading them. #goodproblemtohave.



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You think the criminal justice system is whack? try doing dependency.

Wow. No words for this one.  2 year old girl in Texas is removed from her parent's home because her dad smokes weed and he almost dropped her (but didn't).  She is put in foster care.  Then, due to abuse, injury and/or neglect, she dies.  No words for this one.  This is so disturbing my instinct is "he must be lying about why his daughter was removed from his home."  Because this is unimagineable.

Your Daily Defense

Today's daily defense is one that rarely arises. It is, though, worth knowing about.  I haven't been at this that long and it has come up for me one time.  The DA conceded the issue when I 995'd it. I call this defense the "transactionally related" rule.

The Situation
You are PUMPED because the judge discharged a few counts after the px. You get the information.  You see the discharged counts added to the information. You do some research and see that the DA cannot refile discharged counts if the judge made a factual finding that would prohibit refiling. Such as a rape case where the judge makes a factual finding that CW is lying.  Bat's chance outta hell nowadays.  Anyway, the question is, can the DA add new charges to the information when D was never held to answer to them even though there was evidence of that crime at the px?

Another situation is the case proceeds very quickly.  The complaint does not charge everything it can.  The DA doesn't amend it.  Many other crimes are revealed at the PX.  When the DA files the information she adds charges for offenses that the evidence at the px established even though, technically, D was never held to answer to those charges. Can she do that?

The rule:
The DA can only add charges to the information for which D was not held to answer if 1) there was evidence of the charge at the px AND 2) the offense is transactionally related to the offense for which D was held to answer.  Don't despair. "Transactionally related" is MUCH MORE NARROW than you think.  IT IS NOT the same as "a course of conduct."  See more below.

The reason for the rule:
California's constitution guarantees criminal defendants in a felony matter to be free from prosecution for offenses unless a magistrate or grand jury has determined that the prosecution is justified. (Parks v. Superior Court(1952) 38 Cal. 2d 609, 611; Cal. Const. Art. 1, Section 14.)  In tension with this rule is that, if the DA goes by way of px, the DA is allowed to charge in the information offenses to which the defendant was not held to answer.  (Penal Code section 739.)  There is a tension because if the DA can add charges to the information that D was not held to answer to then, technically, a magistrate has not determined that the prosecution was justified.

To resolve the tension between these rules, the California Supreme Court held in Parks that the DA may only file offenses for which the defendant has not been held to answer if those offenses are "related crimes shown by the evidence taken before the magistrate bearing on the transaction involved in the commitment order.”

What is the "transaction"?

Surprisingly, with the exception of a some bad sex cases (man sex cases always result in the worst law), the law is very good on how narrow a transaction is. If the offenses are distinct and separate, even if they are part of a course of conduct, they are not transactionally related. (Mulkey v. Superior Court, supra, 220 Cal. App. 2d at p. 824.) (Mulkey v. Superior Court, supra, 220 Cal. App. 2d at p. 824.)

Here are some examples of cases where the court said the added charges were not transactionally related:

• Parks v. Superior Court (1952) 38 Cal.2d 609.  D supposedly did a bunch of fraudulent transactions with different people.  The DA only proved one incident with one victim at the preliminary hearing, although the complaint had initially alleged offenses related to 2 other victims.  D was held answer to the offenses related to only one victim.  The DA filed an information with the offenses for all 3 victims. The court said that it does not matter if this was a course of conduct, the offenses involving the other two victims were not part of the same transaction as the one that D was held to answer.  
• Mulkey v. Superior Court (1963) 220 Cal.App.2d 817.  D was charged with several counts for cashing stolen checks made out to him as the payee at several different stores.  Each count involved a different incident in a different store.  The checks were all stolen from D's brother and all made out to D as the payee.  D was not charged with the theft of the checks, only uttering a forged check.  Only one victim could identify D.  The judge discharged the counts where D was not identified.   The DA filed the information adding the charges that were discharged.  The appellate court said it doesn't matter that the checks were all stolen at once and that D was the payee in all the checks.  Because each presentation of the forged check for cashing was a separate a distinct offense, they were not transactionally related, and the DA was barred from charging them.
• People v. Saldana (1965) 233 Cal. App. 2d 24: just because offenses occurred simultaneously they are not transactionally related.  D charged in the complaint with rape.  At px it came out that he had a joint in his pocket during the rape.  DA adds to the information a count for possession of marijuana.  Held:  That D simultaneously committed the rape and the possession of marijuana was insufficient to establish that the offenses were transactionally related.  Because there was no causal connection between the offenses, they were not transactionally related. 
• Ondarza v. Superior Court (1980) 106 Cal.App.3d 195: Factors to consider when evaluating whether offenses are part of the same transaction are if the crime added is dissimilar to the offense for which D was held to answer and if different individuals were involved in the different offenses.  The allegations were that D offered to sell an undercover cop a stolen leather jacket and gave him the phone number of someone from whom the officer could by cocaine.  The magistrate discharges the cocaine sale count on a legal, not a factual, basis. The DA refiles the cocaine sale count. Cheapest sale of cocaine charge ever.  Anyway, the appellate court said it doesn't matter that he negotiated the sale of the jacket and the sale of cocaine in the same financial transaction; the offenses are just too different, involving different people (e.g. the third party who sold the cocaine) for the offenses to be transactionally related under the Park test.

Here are examples where they were transactionally related:

• People v. Evans (1952) 39 Cal3d 242.  Not a lot of analysis. D was charged with 288 in the complaint. After the px the DA added 288a and assault with a deadly weapon. The court said this was ok.  There really is not any analysis of why or distinction from Parks, this is all they say: " The Parks case is controlling here inasmuch as the story told by the complaining witness shows that the two crimes were related to and connected with the transaction which was the basis for the commitment order."  The story was that D grabbed her leaving a park, exposed himself, and molested her a knifepoint.
• People v. Downer (1962) 57 Cal.2d 800. D was charged with offenses related to molesting his daughter.  The DA added charges to the information that were not on the complaint for an incident on a different date than those in the complaint.  The court said that this was fine because the crime, although different from the others that D was held to answer to, bore on the same transaction of those in the commmitment order.  Again, weird and not very clear why when this was a completely separate event and Mulkey explicitly states: "Admittedly the circumstances do show a ‘course of conduct,’ but this in itself is not a sufficient showing of a related or connected transaction justifying the added counts in the information... To allow the showing of a ‘course of conduct’ to constitute sufficient relationship to permit the added counts would be a return to the discredited approach in People v. Wyatt, supra, 121 Cal.App. 180, 8 P.2d 901, and throw constitutional doubt on the procedure. (Parks v. Superior Court, supra, 38 Cal.2d 609, 241 P.2d 521.) "

What if you win?
In my experience, if you win a 995 on this issue but other counts remain it is a great time to resolve the case (unless the other counts are defensible, obviously).  My husband, who I explained this rule to, asked me a question that had not but should have occurred to me. Let's say you win the 995 on this issue.  Then what? Can the DA make a motion to ask the judge to review the preliminary hearing transcript and issue a holding order on the charges she wants to add to the information, assuming that the evidence is there? Or are you entitled to a whole new px? So I thought about this a little more.  In scenario A, where the magistrate discharged a count or counts without making a factual finding, the DA -- for practical reasons -- cannot just go back to the magistrate to ask him/her to hold your client to answer on previously discharged counts.  Obviously the magistrate discharged those counts for a reason, so why would he/she then change his/her mind and hold D to answer to them?

In scenario B, though, where the prosecutor added charges that were not discharged and never in the complaint, what would prevent the prosecutor from requesting a holding order on those charges to cure the procedural defect of not asking for said holding order before filing the information? I do not know, I need to research it and I'm not sure if the answer is out there.