Legal Policy Manual Flashcards
This flashcard deck was created using Flashcardlet's card creator
1
Q
Number of Counts
A
Not more than 15 with DIC or HD approval
2
Q
Multiple defendants and charging
A
When there are multiple defendants and one deserves a felony, then charge all with felonies (if possible) because the law prefers joinder
3
Q
Supporting documentation for certain crimes and allegations
A
The I/O must bring the supply documents before prelim, I.e. prior conviction for 666
4
Q
Penal Code section 667(a)(1)
A
Prior conviction of a serious felony Shall receive 5 years Must be filed pursuant to LPM 2.10.05 Must be served consecutive Defined by 1192.7(c)
5
Q
Minors prosecuted in adult court
A
Traditional Fitness hearings
Mandatory Direct Filing
Discretionary Direct filings
6
Q
Standard for Juvenile Filing
A
Same as for adult court
7
Q
Filing deviation from juvenile to adult
Who do you seek approval from
A
The adult court DA may not reject case or deviate from filing in juvenile court without prior HD approval
8
Q
What justifies a change in filing brought from juvenile filing to adult court?
A
Change in facts or law, errors, or omissions
9
Q
Examination of Defendant’s Age in adult court
A
Proceeding must be suspended
Examine defendant’s age in adult court
Defendant has the burden of proof
10
Q
Burden of proof in examination of age case
A
Moving part has burden
Burden is preponderance of the evidence
11
Q
What happens to the case if the adult court finds defendant is a minor
A
Adult prosecution should be suspended
Juvenile court is final arbiter of defendant’s age
Burden is still on defendant
Burden is still preponderance of e Evidence
12
Q
Discretionary Direct Filing
A
Although we have the power to direct file on certain juvenile cases, I.e. guns, gangs, murder, we rely upon fitness hearings
13
Q
Disclosure of Informants
A
If at time of filing it appears that informant disclosure is necessary, then filing DA should not file unless they have assurance from agency that they will disclose, and that the agency will make reasonable efforts to keep track of the performance whereabouts.
- Disclosure
- Whereabouts
14
Q
When is disclosure of an informant necessary?
A
The defense has a right to know the disclosure of an informant when there is a reasonable possibility that the informant offer exonerating evidence or evidence that tends to benefit the defendant’s case.
15
Q
What happens when a judge finds that prima facia case has been made showing that the informant is material
A
The disclosure of the informant may be opposed by the use of an in camera hearing.
16
Q
Felony DUI
A
- Three or more prior DUI convictions or prior alcohol reckless driving convictions;
- Prior alcohol-related vehicular manslaughter;
- If defendant causes serious injury to another person in current case
17
Q
Proper basis for declining to charge
7 Reasons
A
- Contrary to Legislative Intent
- Antiquated Statute
- Victim Request No Prosecution
- De Minimis Violation
- Probation Violation
- Pending Prosecution on Other Charges
- Disproportionate Cost of Prosecution
18
Q
Contrary to legislative intent
A
It will be proper to declined to charge because charging the accused will be contrary to the legislatures intent and enacting that particular law
19
Q
Antiquated statute
A
- Has not been enforced for many years
- Most members of society generally act as if it were no longer in existence
- It no longer serves as a deterrent or protective purpose
20
Q
Victim request no prosecution
A
In certain occasions it is proper to decline a case because the witness declines prosecution.
- In assault or battery cases when the victim has suffered little or no injury and the accused conduct is not likely to be repeated
- In crimes against property, not involving violence, when no major loss was suffered and the accused’s conduct is not likely to be repeated
21
Q
De minimis violation
A
In rare occasions it is proper to decline a charge when the violation is minimal.
- The availability of appropriate alternative charges
- Whether the accused, if convicted, would merit any confinement or significant fine
- Whether a deterrent purpose will be served by prosecuting the offense
- The possession of a controlled substance falls below the minimum requirements
22
Q
Probation violation in-lieu of
A
In certain cases it is proper to decline a charge because the revocation of probation or parole is imminent
1) there is sufficient evidence to prove the violation
2) the probationers conduct constitutes a violation that either is not criminal
3) or if criminal, the new conviction would not merit in significant additional punishment, and the new offense is not particularly aggravated, and the conviction on the new offense would not serve any significant deterrent purpose
23
Q
Pending prosecution on other charges
A
It is proper to decline a charge because the accused is facing pending prosecution in LA County or another jurisdiction
If the conviction of the new offense would not merit a significant punishment, there is a reasonable certainty that the pending prosecution is eminent, the new defense is not aggravated, and the conviction on the new offense would not serve any deterrent purpose
24
Q
Disproportionate cost of prosecution
A
A decision not to charge because the cost of prosecution or the burden of witnesses is disproportionate to the importance of prosecuting the particular offense
Requires Bureau Director approval
25
Improper basis for declining to charge
| 8 reasons
1. Restitution
2. Extradition Not Warranted
3. Relation of Accused and Victim
4. Unpopular Statute
5. Victim's Lack of Cooperation
6. Severe Impact on the Accused/Accuse Family
7. Improper Motives of the Complainant
8. Commission of Perjury
26
Declining to charge because of restitution
It is improper to decline to charge simply because the accused made or tendered restitution to the victim
27
Extradition not warranted
It is improper to decline to charge simply because extradition is necessary to obtain jurisdiction over the accused
28
Relation of excused and victim
It would be improper to decline to charge simply because the victim and accused are related
29
Unpopular statute
It would be improper to decline a charge simply because the statute is unpopular with a segment of the population, the local judiciary, or even the prosecutor
30
Victim's lack of cooperation
It would be improper to decline to charge simply because the victims future cooperation is problematic.
However the deputy can take into consideration the victims present lack cooperation of as a factor in determining whether the case can be successfully prosecuted
31
Severe impact on accused or accused family
It would be improper to decline to charge simply because it will have a severe impact on the accused or accused family
32
Improper motives of the complaint
It would be improper to decline to charge simply because the motives of the complainant in seeking prosecution or self serving, vindictive, or competitive.
33
Commission of perjury judicial proceedings
The defendants or codefendant commits perjury during a judicial proceeding, a deputy should not the decline to charge perjury simply because he or she was convicted of the original charge
34
Law enforcement request for review of filing decision
An officer can request assistant hea deputy to review it reject from a filer
If assistant head deputy also rejects then they can go to the HD. However it must be the officers supervisor that goes to HD
35
City attorney disagrees with filing deputy's decision
1. The city attorney may contact the filing deputy to discuss the referral
2. If matter is unresolved, city attorney's supervisor may request review of the filing deputy's head deputy or deputy in charge
36
Offenses generally appropriate for referral
| 5 reasons
1. Battery or mutual combat unless there's series injury or a weapon or gang-related
2. Neighborhood disputes
3. Trespass
4. Loitering
5. Regulatory violation
37
Loitering filings
Loitering for purpose of prostitution or drug activities will only be filed when the loitering was observed and investigated by trained law enforcement experts in prostitution and or drug activities
38
Note on regulatory violations
Filing deputies should consult with deputies in the consumer protection division when the violation involves consumer protection, environmental law, or workplace safety violations.
39
Offenses generally inappropriate for referral
| six reasons
```
I. Exhibiting a weapon
II. Weapon possession
III. Petty theft
IV. Bad checks
V. Vehicle theft
VI. Hit and run driving
```
40
Exception to exhibiting a weapon
It may be referred to an office hearing it is unclear who the aggressor was
41
Exception to weapons possession office hearing
An exception may be made when he accused is not involved other criminal activity and is confused about the wall regarding possession of certain weapons.
Another exception is when the weapon was unlawfully seized and a court will excluded from evidence
42
Exception to petty theft
A petty theft may be sent to an office hearing t accused mental competence is in question
43
Vehicle theft exception
A vehicle theft case can be referred to an office. If the vehicle had previously been loaned or used by the suspect. Or if the victim and the suspect are related or associated in someway and the vehicle is recovered without serious damage.
44
Exception to hit and run
A hit-and-run case can be referred to an office hearing if the damage is minor and the facts suggest the suspect may not have sufficient knowledge of the damage.
45
Prop 115 and special circumstances
Head Deputy approval is required when using proposition 115 testimony in a preliminary hearing involving special circumstances
46
If a filing deputy determines the bail schedule is inappropriate he shall
I. Prepare a declaration for bail deviation
II. Indicate the proposed bail amount on the complaint
III. Deliver the complaint and the declaration for bail deviation to the arraignment court
47
Bail deviation procedure: Arraignment Deputy
I. Present testimony or oral argument in support of the declaration for bail deviation
II. Ask the magistrate to fix bail on the amount recommended on the complaint
48
Bail deviation on a felony complaint
recommendation an excess of $100,000 must have head deputy approval
49
Grand jury indictment bail deviation
Bail deviation recommendation in excess of $1 million must have bureau director approval
50
Changing bail after defendant admitted to bail
Penal Code section 1289 permits bail to be increased or decreased upon a showing of good cause
51
Bail deviation by the people, good cause
The people need not give notice of a motion to increased bail
52
Bail deviation by the defense
The defense must give notice to the people in order to reduce bail
53
Misdemeanor case management: trial waiver on a significant case
The decision to waive jury in a significant case of public interest requires chief deputy approval
54
Penal Code section 851.8
Establishes procedures by which a person who has been arrested but not charged or charged but not convicted may petition the law-enforcement agency having jurisdiction over the offense or the courts to determine factual innocence
55
If a petition for factual innocence is granted
All records of arrest and any related court proceedings must be sealed for three years from the date of arrest and then destroy
56
The burden of proof for determining factual innocence
A court must find no reasonable cause exists to believe that the arrestee committed the offense for which the arrest was made
57
A petition for relief for a determination of factual innocence maybe file up to:
Two years from the date of the arrest or filing of the accusatory pleading which ever is later
This time restriction maybe waived upon a showing of good cause and in the absence of prejudice
58
What may a judge use to determine factual innocence?
A determination of factual innocence maybe based upon declarations, affidavits, police reports, or any other evidence which is material, relevant and reliable, including evidence which was illegally obtained.
59
When the defendant is arrested but not charge the people have
If the people do not respond within 60 days then the petition is deemed to be denied
60
In any case were a petition for factual innocence is denied by the people the petitioner make appeal to the court had jurisdiction.
The petitioner has 10 days Prior to the hearing to serve the petition on the people.
61
In any case where a person has been arrested and charges have been filed, but there has been no conviction, a defendant may also make a motion for factual innocence.
The petitioner has to file and serve the pleadings at least 10 days prior to the hearing
62
Penal Code section 1054
This is the discovery statute. Discovery must be turned over 30 days prior to trial. If discovery is discovered within that 30 day period, the discovery must be turned over immediately.
63
Proposition 115 testimony
Deputies may use hearsay evidence for witnesses who establish the corpus of a crime, i.e. the vehicle owner's car was stolen
64
Whose approval do you need to use proposition 115 testimony on all other necessary witnesses?
Deputies must have prior Head Deputy or Deputy in charge approval before before presenting 115 testimony
65
Waiver of preliminary hearing
Hey Deputy or Deputy in charge approval.
Must be documented in case file
Only in unusual cases
66
Penal Code section 871.5
Motion to reinstate the complaint
67
Penal Code section 871.5 and dismissals based upon upon non-statutory motions
Penal Code section 871.5 does not apply to dismissals based on nonstatutory motions
68
The basis for a motion based upon Penal Code section 871.5
The only ground upon which an 871.5 motion can be based is that the magistrates dismissal was erroneous as a matter of law
69
Can we use 871.5 motion to challenge certain evidence that the magistrate determined was inadmissible?
Yes. If the ruling that a certain piece of evidence was inadmissible results in a dismissal then the people can make it 871.5 motion as to that issue.
70
If a reviewing court grants the 871.5 motion, the preliminary hearing magistrate has how many days to resume proceedings?
The magistrate must resume proceedings within 10 days of the entry of the reviewing court's order.
71
What happens if an 871.5 motion is denied?
The people may appeal the decision but we may not refile the charges.
72
How many days the prosecutor have to make an 871.5 motion in Superior Court?
The prosecutor must make a motion in the Superior Court within 15 days to compel the magistrate to reinstate the complaint or a portion.
73
Who needs notice on an 871.5 motion?
The magistrate and the defense
74
Grounds for an 871.5 motion?
As a matter of law the magistrate erroneously dismissed the action or a portion of the action
75
Which is the first reviewing court four in 871.5 motion?
The Superior Court
76
How many days does the prosecutor have to request a transcript of the proceedings of the preliminary hearing 871.5 motion?
10 days
77
How many days notice must the defense give for a 1538.5 motion for preliminary hearing?
Five days
78
What are the limits of a 1538.5 motion during a preliminary hearing?
The defense may only seek to suppress the evidence that is being sought be introduced by the people at that hearing.
79
What happens if pursuant to 1538.5 motion the magistrate suppresses all or part of the evidence sought to be introduced by the people?
The people may refile the case or move to reinstate the complaint pursuant to Penal Code section 871.5.
80
If the preliminary hearing magistrate suppresses all or part of the evidence but holds the defendant to answer on all counts, what made a deputy do?
The people may bring a motion within 15 days to relitigate the validity of the search or seizure.
81
If the preliminary hearing magistrates suppresses all or part of the evidence, but holds the defendant answer on at least one count but dismisses the other accounts, what may the Deputy do?
A deputy may give notice of motion to reinstate the dismissed count pursuant to Penal Code section 871.5, or refiled this dismissed count, or file the dismissed count as part of the information.
82
Remand upon conviction
When a defendant is convicted following a jury trial, the defendant must be remanded bail exonerated
83
Exception to the remand rule felony case.
What are the five factors that a court must consider if they decide not to remand the defendant after a jury trial conviction?
1. Protection of the public
2. The seriousness of the offense charged and proven
3. The previous criminal record of the defendant
4. The probability of the defendant failing to appear for judgment
5. Public Safety
84
Who must give a approval for submitting a case on the preliminary hearing transcript?
Grade 4 or Head Deputy
85
Penal Code section 1424
Recusal motion made by the defense
86
What is the standard of proof that the defense show in a recusal motion?
A conflict of interest exists that would render it unlikely that the defendant would receive a fair trial.
87
Who must the deputy and notify on the receipt have a recusal motion?
Head Deputy and bureau director
88
Penal Code section 1424, recusal motion, requires that
1. The motion shall be served on both the district attorney and the Atty. Gen. at least 10 days prior to the motion
2. The motion shall contain a statement of facts setting out the grounds for disqualification and legal authority relied upon
3. The motion shall be supported by affidavits of witnesses who are competent to testify to the facts set forth in the affidavit
4. The motion may not be granted unless the evidence shows that a conflict of interest would render it unlikely that the defendant would receive a fair trial
89
Preemptory challenge in an individual case
Requires head deputy approval.
Requires the head deputy to inform the bureau director.
Must state that the judge is prejudice against the people not that the judge is prejudice against the particular deputy
90
Peremptory challenge in all cases or challenge for cause
Requires chief deputy approval.
To obtain approval the head deputy or deputy charge must forward a memorandum to the chief deputy
91
Sentencing terms at plea
Deputy must explain to the defendant the maximum and minimum state prison terms including potential parole terms
92
A deputy must explain at the time of the plea
That we will urge the court to set aside the plea if the probation report or any other source reveals any facts or circumstances indicating sentence is contrary to the California rules of court and or the Penal Code
93
When Court imposes an illegal sentence what must a deputy do?
A deputy shall notify the Appellate Division in writing within 10 days after the sentence is imposed
94
How long may deferred entry of judgment be deferred for?
A minimum 18 months to a maximum of three years
95
Penal Code section 1203.01
Dist. Atty.'s statement of view
96
When must a deputy file a statement of view?
1. In all life cases
2. In Death cases
3. Life cases imposed in third strike cases in which the third strike is he serious or violent felony
97
What is the timeframe when the information contained in a statement of view and supplemental info needs to be in the prisoner's file prior to the parole hearing?
10 days
98
The statement of you must address the following questions?
Regarding the committed offense
1. Was the offense carried out in a manner that exhibits a callous disregard for life with the suffering of another
2. Was it carried out in a dispassionate or calculated manner
3. Was the victim of abuse, the file, or mutilated during the offense
4. Did the defendant commit other criminal offenses after the committed offense
99
The statement of you must address the following questions
Regarding criminal history
1. Does the defendant have a record of violence
2. Does the defendant have an escalating pattern of criminal violence
3. Is it is there a persistent pattern of tumultuous relationships for criminal behavior commencing at early age
4. Has the defendant failed to profit from society's previous attempts to correct his criminality, such as juvenile probation or, CYA commitment, County Jail, probation, parole, or a prior prison term
5. Does the defendant had a history of drug or alcohol abuse, if so, did defendant claim to be under the influence of drugs or alcohol at the time indicated defense
100
Who must give approval in a case involving a major crime or significant case?
The chief deputy
101
In special circumstances case who can authorize leniency or immunity?
The special circumstances committee chair
102
In all other cases who can authorize leniency or immunity?
Bureau Director
103
When can a jailhouse informants testify to the defendants oral statements, admissions, or confession?
When there is strong evidence which corroborates the truthfulness of the informant
104
What is a jailhouse informants?
a jailhouse informants is a person in custody who receives communication from another person in custody about the crime committed by the latter and who chooses to convey this information to authorities
105
Before using a jailhouse informants as a witness who must you seek approval from?
The jailhouse informant committee
106
Who makes the jailhouse informant committee?
The chief deputy, assistant district attorneys, and bureau directors
107
Before a Deputy prepares the memo for the jailhouse informant committee who else must contact?
Habeas corpus litigation team deputy in charge
108
What information must the deputy ask the deputy charge of the habeas corpus litigation team?
Whether the informant has offered to be a witness in the past or has testified in prior cases. Information should be included in the deputy's written memo to the jailhouse informants committee
109
Who must authorize the preparation of a search warrant for a location outside of Los Angeles county?
Head Deputy or Deputy in charge
110
When may a Los Angeles County judge issue a search warrant to be executed in another county?
When it is reasonably anticipated that the underlying offense will be prosecuted in Los Angeles County.
When it is anticipated that the underlying offense will be prosecuted outside Los Angeles County then you must seek a judge from that county to have a search warrant executed.
111
True or false. The DAs office and law enforcement within the county where the warrant will be executed shall be notified and if necessary assistance in its execution?
True
112
PRA require how many calendar days to respond?
10
113
In unusual circumstances PRA request may be extended up to how many additional days?
14
114
What is the office policy as a relates to gag orders?
1. We shall not make a motion for a gag order
| 2. We shall oppose defense motions for a gag order
115
What is the office policy regarding a criminal subpoena to obtain information protected by the newspaper shield law?
Shall not use a subpoena to obtain information protected by the shield law
116
Search warrants and any items protected by the newspaper shield law
A search warrant cannot be used to obtain the source of any news information or unpublished news information in the possession of the news media
117
When a newsperson is a percipient witness who must a deputy received permission from before issuing a subpoena?
Head Deputy approval and notify media relations division prior to issuing subpoena
118
Civil subpoenas
managed by the assistant district attorney administration.
all documents should be served at the 18th floor reception desk at the Dist. Atty.'s headquarters to 120 West Temple St., Los Angeles 90012
119
What must a person do it they inadvertently accept service at location other than 210 W. Temple
1. Record name, the method of service, and the date and time of service
2. Promptly notify the office of the assistant district attorney, administration by telephone. A call log is maintained.
3. Send the documents and any witness fees to the assistant district attorney, administration. This may be done through County mail.
120
Disclosure of Informants: Burden of Proof
Burden of showing a "reasonable possibility" that the informant can offer exonerating evidence or evidence that tends to benefit the defendant's case.
121
If there is a prima facie showing at a disclosure of an informant hearing, then what must the judge determine?
He must determine whether there is a reasonable possibility that nondisclosure of the informant's identity would deprive the defendant of a fair trial.
122
Trespass
Can go to office hearing if the trespass involved a minor and a warning is likely to resolve further violations
123
Exception to Bad Checks
If the amount of loss is small or the intent to defraud is unclear, then this is an exception to the general rule
124
Bad Check Restitution Program
is an alternative to prosecution
125
The four sentencing goals:
deterrence, protection, punishment and rehabilitation
126
What must a DDA provide for a 1203.03 diagnostic?
1. The defendant's criminal record, including prior convictions and dismissed counts;
2. The deputy's opinion concerning the appropriateness of probation for this defendant;
3. The existence of detainers from other jurisdictions; and
4. Any other pertinent information, including psychiatric reports that may assist the authorities in determining whether the defendant should be released on probation.
