Legal Question in Criminal Law in California

My husband was given his 3rd strike based upon his prison priors, one in which the 3 strikes law wasn't in effect. The judge I belive abused his discretion, but he was found not guilty (lead to misdameanor charges), and one he plead guilty to (inefective assistance of counsel), which was Posession. Can't his appeal attorney fight for a lesser charge or resentence? The Probation Dpt even recommended time served and indicated this was relatively minor charge consdering the possession was very small, with no intent to sell/distribute but personal use with no prior help? Plus he 4th Admendment rights were violated. He wasn't arrested for what he was charged for?


Asked on 5/31/10, 12:11 am

1 Answer from Attorneys
Edward Hoffman Law Offices of Edward A. Hoffman

Your question is a bit vague, but there are a few points I can offer in response. In no particular order:

1. It doesn't matter that one of your husband's priors pre-dates the three-strikes law. Using older priors as strikes is legal.

2. The judge does not have to accept the probation department's recommendations. Your husband will need to show more than such a disagreement in order to prove that the judge abused his discretion.

3. Prosecutors often bring charges that are different from those the police mentioned at the time of the arrest. The Fourth Amendment does not forbid this.

Please feel free to contact me directly if you want to discuss your husband's case in detail. I am a certified appellate specialist (per the State Bar of California) with many years of experience.

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Answered on 5/31/10, 3:58 pm


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