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SUPPRESSION OF EVIDENCE UNDER CALIFORNIA PENAL CODE SECTION 1538

03-06-2015


Suppression of Evidence under Penal Code Section 1538.5(a)(1)

Under Penal Code Section 1538.5(a)(1), a defendant may move for the return of property or to suppress as evidence any tangible or intangible thing obtained as a result of a search or seizure on any of the following grounds:


  1. A warrantless search or seizure was unreasonable;


  2. A search or seizure with a warrant was unreasonable because:


a. The warrant is insufficient on its face;

b. The property or evidence obtained is not that described in the warrant;

c. There was not probable cause for issuing the warrant;

d. The method of execution of the warrant violated federal or state...

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CARC 3.1320(J) VS. CCP 471.5(A)

01-23-2015


There has long been confusion among the legal community as to the application of California Rules of Court 3.1320(j) and California Code of Civil Procedure (“CCP”) § 471.5(a)as they relate to the time a defendant has to respond to a complaint following the courts decision to sustain its demurrer.

California Rules of Court 3.1320(j) states: Unless otherwise ordered, defendant has 10 days to answer or otherwise plead to the complaint or the remaining causes of action following:


  1. The overruling of the demurrer;

  2. The expiration of ...

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SAN DIEGO CRIMINAL DEFENSE STRATEGY FOR LACK OF SPEEDY TRIAL-SERNA MOTIONS

01-16-2015


A Serna motion is a defense tool, which would allow a defendant to have misdemeanor charges filed against him be dismissed. Under the United States Constitution a defendant has a 6th Amendment right to a speedy trial. This right is triggered at the time charges have been brought against a defendant.

The Court in Serna stated: “a delay between the filing of a misdemeanor complaint and the arrest and prosecution of a defendant which exceeds one year is unreasonable and presumptively prejudicial.” 

A delay in prosecution can occur in one of several ways. For example, a delay can occur when the prosecution fails to file the charges against the defendant in a timely manner, or when an arrest warrant is not timely executed on the defendant.

Lets assume it is January ...

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CIVIL LITIGATION-DEMURRERS

01-06-2015


In a famous quote Abraham Lincoln stated: “Discourage litigation. Persuade your neighbors to compromise whenever you can. As a peacemaker the lawyer has superior opportunity of being a good man. There will still be business enough.”
 Litigation is a position no party would want to find themselves in. It is time consuming, costly, stressful and last but not least it deteriorates long lasting relationships among parties. Civil litigation could involve a myriad of different issues such as, disputes over property, contracts, negligence of a party, products liability, dog bites, and premises liability just to name a few.

Litigation is initiated when one party (generally the plaintiff) file...

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ASYLUM - THE RESETTLEMENT BAR AND HOW TO OVERCOME IT IN IMMIGRATION COURT

01-02-2015


The Board of Immigration Appeals in the Matter of A-G-G-, 25 I&N Dec. 486 (BIA 2011), once again modified the resettlement bar to asylum applications from previously being a discretionary bar to a permanent bar, if the Department of Homeland Security (DHS) provides sufficient evidence that the Respondent has in fact made a firm resettlement in another country. However, the inquiry is not as simple as it sounds and there are many ways to overcome the resettlement bar. The purpose of this blog is to give a basic overview of the current law relating to this issue. If you find yourself in such a situation ha...

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