Legal Question in Criminal Law in California

constitutional rights

The supreme court has determined that concurrent sentences, or the right to be considered for concurrent sentences, is a right protected under the consitution. There have been several cases relating to this fact. Most defense attorneys will consider this a Cerna motion. It is quite common, but sometimes defeated by judicial descrition. What I think you are saying is the motion was never filed, and in this case you have a valid objection to the proceedings. Cerna can be raised on appeal.

Re: Denial of Concurrent Sentencing

Your husband may well have grounds for a motion to dismiss under People v. Martinez. However, you may not be able to get a Public Defender to bring the motion. You may have to hire a private attorney.

Most PDs are dedicated individuals who truly want to do the best for their clients. However, all of them are terribly overworked and underpaid. Sadly, it is often true that they just don't have time to bring some of the motions which could help their clients, especially if the motions are complicated or time-consuming.

Putting it another way, the PD is like an Emergency Room doctor in the middle of a disaster. He has to help the most people he can. Sometimes that means he has to choose between saving one person with a complicated procedure and saving three other people with simpler procedures. Most doctors (and most PDs) will choose to help the greater number.

Fortunately, there are private attorneys who will take whatever time is required to get your husband the justice he deserves.

Re: Denial of Concurrent Sentencing

Thanks for your posting.

What can you do to force your public defender to do something? Not much. Attorneys have the ultimate say in strategy, and public defenders are often overworked, so sometimes the best thing to do is to hire a private attorney.

I am not the judge, so I can't interpret Martinez and also guarantee that your judge will agree with my interpretation. But I agree that it would seem to support your position, and considering the judge's previous comments, I think it would be worth it to go ahead with the formal motion and ask for the sentencing to be continued so that a "package deal" running the sentences concurrent can be arranged.

Thanks again, and if you have any other questions, want more information, or would like for my San Diego office to work on your case, please feel free to call me toll free at 1-877-568-2977, or email me.

Re: Denial of Concurrent Sentencing

I don't understand all the aspects of the case. And that's a problem with these short scenarios. As I understand the facts the sentencing judge in the first case seems to be aware that the sentences should run concurrent. The second case doesn't appear to be at the sentencing stage yet. It appears that you're asking the Public Defender's Office for a motion to be filed in the second case when the second case is barely filed, and there is no sentence pending. So the Public Defenders may be correct, although it may be appropriate at some future date to talk to one or both judges about concurrent sentences. However, the matter doesn't appear ripe yet. Motions are normally not brought about in sentencing because they are normally not necessary. You tell the judge the law and the D.A. either concurs or objects. Then if the judge gives the wrong ruling in the criminal defendant's opinion. You can file a writ of mandamus with the appellate court to review the matter. So the Public Defenders may be perfectly correct for the reason that the motion is the wrong vehicle to use at this time. The Public Defenders may agree with you about the law, but not the modus operandi to get the correct concurrent sentences.