Legal Question in Criminal Law in California

My Husband was charged with four counts of robbery. We bailed him out while out in bail for this first case he picked up a separate case which was possesion of a firearm. He went to trial with the robbery case during trial a witness stated that a Gun was flashed to them while the robbery by the other co- defendant. The prosecutor later in the trial mention that My husband had pick up a new gun case during the year and mention he was in possesion of the Gun and he was walking around in a rival territory where yet, he has not been convicted of this case this has not yet been proven but, the prosecutor put it in trial as a fact. Was their a right or law violated? Now they picked up a Gun Enhancement charged aside from the robbery but we feel that the prosecutor stating this phrase as a fact persuaded the jury to also pick up a Gun enhancement case against him there was no gun recover on the robbery case though. Thank you for your time.


Asked on 8/21/12, 2:51 pm

2 Answers from Attorneys
Theresa Hofmeister Theresa Hofmeister, Attorney At Law

This question has already been answered .... talk to your husband's attorney and/or talk to an appellate attorney. Better yet, both.

No one can answer this without knowing what pre-trial motions were brought and the ruling (or decision) on those motions.

This Q sounds very similar:

My Husband was charged with four counts of robbery. Later in the year he pick up a separate case of possesion of a gun he has not been convicted for the gun charge. Though, this case was brought up in trial for the first case. Was there any right violated due that he was ot convicted yet the prosecutor mention parts of that case?

8/20/12, 3:57 pm

Answer

Hopefully your husband's attorney made a motion to exclude evidence of the gun at the robbery trial. If the judge denied the motion and either a prosecution witness testified about the gun or your husband testified and on cross examination admitted to having the gun the prosecutor can mention the gun either in his opening or closing.

Zadik Shapiro

Law Offices of C. Zadik Shapiro

15 Boardman Pl.

San Francisco, CA 94103

Answer

yes that may be ok to mention depending on a motion in limine and what was ruled (decided) on that by the Judge prior to the trial.

Talk to an appellate attorney for any apparent appellate issues. One appellate specialist on LawGuru is Edward Hoffman - call him at (310) 442-3600. Good luck!

Theresa Hofmeister

Theresa Hofmeister, Attorney At Law

336 South Broadway

Escondido, CA 92025-4207

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Answered on 8/21/12, 3:29 pm
Edward Hoffman Law Offices of Edward A. Hoffman

I agree with Ms. Hofmeister. Let me just add one point:

If the prosecutor mentioned the alleged gun violation in front of the jury with no evidence to back it up, then he probably committed serious misconduct. Your husband's lawyer should have objected. Whether she did or not, this may be a very strong issue for your husband either on appeal or in a habeas corpus petition -- if he was convicted, which your question does not tell us.

Please feel free to contact me directly if you want to discuss your husband's options on appeal or in a habeas petition. I have 18 years of relevant experience and am certified as a specialist in appellate practice by the State Bar of California's Board of Legal Specialization -- a certification held by less than one-fifth of one percent of attorneys in this state.

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Answered on 8/21/12, 3:43 pm


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