Legal Question in Criminal Law in California

serving 25 to life - two dollar paint brush

my brother committed a petty theft at a very large retail store, instore securities apprehension required immediate medical attn. no confrontation was attempted by instore security, instead after he left premises, he was rushed from behind and brought down causing a laceration on his head. at his trial security said he became combative when confronted, there was no confrontation as retailer policy requires i am guessing. all of this was outside exit door below the surveilance camera, this was not brought up at trial. i have the court paperwork of his trial and his letter regarding all of this. after his conviction, outside courtroom, one of the two instore security told my sister, '' had i known he was looking at life in prison, i would have told the truth '' if this is not worth anyones time or if there is nothing to be made here, can someone please tell me what i can try to do on my own for him, because after several postings, i have gotten absolutely nowhere. i would appreciate any return advice, if nothing can be done for him, please let me know. THANX !


Asked on 3/03/07, 1:36 pm

2 Answers from Attorneys
Steven Mandell Law Offices of Steven R. Mandell

Re: serving 25 to life - two dollar paint brush

Your brother's situation is not hopeless, tho it may seem like it. On the surface, it appears he was a third striker, and got the sentence the law required when he was convicted by a jury. However, there's not nearly enough information in your post to give you a legal opinion about what can be done. His case is one of the most complex and serious criminal cases that criminal lawyers deal with. You will never get enough information online to do any good. You should be talking to criminal lawyers in your area who do appellate work. You don't say when his conviction and sentencing occurred, but it may be appealable. Based on the comment your sister heard the witness say, it may be possible to win a new trial. But this is some of the most intricate and complex law that lawyers face. You can't do this without a lawyer. If your brother can't afford a lawyer, he should consult the public defender about the next steps. It's possible that his trial lawyer doesn't know about the overheard comment made by the witness. Tell the lawyer. Good luck.

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Answered on 3/03/07, 3:01 pm
Edward Hoffman Law Offices of Edward A. Hoffman

Re: serving 25 to life - two dollar paint brush

What "truth" would the guard have revealed? That your brother really wasn't combative? If all he was convicted of was petty theft with a prior then whether he was combative probably doesn't matter.

Your question states that he really did steal the paintbrush. Unfortunately, California law says such an offense can be a third strike. Third strikes lead to mandatory sentences of 25 years to life. The U.S. Supreme Court has held that such a sentence does not violate the constitutional ban on cruel and unusual punishment. I think that was an outrageous decision, but what I think doesn't matter much when the Supreme Court has said otherwise.

Depending upon the facts of the case and what happened at trial, there may still be something your brother can do. A habeas corpus petition might help if the guard's change of heart would undermine the conviction *and* if the guard is willing to admit he testified falsely the first time around. If the guard denies saying he didn't tell the truth then your sister's testimony isn't likely to persuade the court.

Feel free to contact me directly if you want to discuss your brother's case further.

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Answered on 3/03/07, 3:46 pm


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