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Improvisational practice (or obtaining a juvenile court disposition for an adult defendant)

When talking about what makes a good criminal defense attorney, many lawyers neglect to mention one crucial ability: the ability to improvise. That ability, which oftentimes consists of the ability to maneuver through openings when they appear, can be illustrated well by a case I recently closed.

A client, aged 22, retained our firm to represent him in a case in which he was alleged to have committed offenses involving his younger cousin when he was approximately 15 years of age. The District Attorney initially charged him in Superior Court, as they believed they were entitled to because he was  initially alleged to have committed the offense when he was sixteen years of age. After discussing the case with the client, we realized that, based on the accuser's allegations, the offenses, if committed, could not have occurred after the age of fifteen. We understood that, if we were able to establish that at his preliminary hearing, we would be able to argue that the Superior Court did not have jurisdiction over him, because of the language of the Welfare and Institutions Code. Therefore, we would argue that the adult case had to be dismissed so that it could be brought against our client in the Juvenile Court.

We established at the preliminary hearing that the offense could not have occurred after our client turned sixteen. However, the magistrate nevertheless held our client to answer. We next filed a Motion to Set Aside Information, pursuant to Penal Code section 995, and were able to convince the trial court that it did not have jurisdiction. Thus, it dismissed the case in the adult court.

After some delay, the District Attorney finally filed the case in Juvenile Court. I appeared with the client in the Juvenile Court. I was able to get the District Attorney and the judge to agree to dispose of the case by way of a plea to one added count of violation of Penal Code section 288(a), dismissal of the 288(b) counts, with the agreement that his disposition would involve no more than 365 days in county jail. This disposition ensured that our client, who was not a citizen, would not be deported and would not have to register as a sex offender. At the dispositional hearing, I obtained for the client a disposition of 365 days county jail, with credit for 18 days in custody on the juvenile case. I also got him credit for 194 actual days in custody on the adult case, plus 194 days good conduct credit, pursuant to Penal Code section 4019. This disposition resulted in his immediate release from custody.

I recognized at the first juvenile court hearing that the juvenile DA hadn't been briefed on the case with the adult court DA who was previously assigned the case. That prosecutor intended for the case to return to the adult court by way of a finding of unfitness in the juvenile court. Once I figured this out by talking with the DA, it became clear that we needed to resolve this case before the juvenile DA had an opportunity to talk to anybody in his office about it because, if that DA learned the adult DA's intention, he likely would have sought and obtained a finding of unfitness.

Likewise, at the dispositional hearing, I recognized that the juvenile DA had not done as the court had previously requested and researched whether a juvenile was entitled to good conduct custody credits for time spent in jail for an adult case related to the juvenile case. I had done the research, and knew that neither statutory nor case authority appeared to support my position that it did. But, the morning of the hearing, I saw that the calendar deputy DA who had agreed to the deal, and who had been asked to do the research, had not arrived in court yet. His partner, who wasn't in court at the previous hearing, was there, and I knew it was unlikely that she had done the research, so, I asked for the hearing to proceed immediately, even though the defendant's family hadn't yet arrived. It did, and I got the judge to agree to give my client conduct credits, so my client got out that day.

This case illustrates particularly well that sometimes a result is obtained just by spotting a hole and running through it

Bio josh solberg

Josh M. Solberg

Joshua M. Solberg possesses the keen analytical insight and attention to detail required of a successful Law & Motions practitioner. His understanding of the intricacies of federal and state Constitutional and criminal law, his tireless devotion to research and his ability to recognize winning issues make him an invaluable asset for those represented by The Criminal Defense Group.

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