Contra Costa Lawyer - May 2023 Criminal Law Issue

Contra Costa LAWYER

Your Court Connection for efiling

• Personalized service on location at the Contra Costa and Alameda Superior Courthouses

• Advanced technology for the upcoming efiling system

• eFile on our website for all California approved courts

• Long lasting relationships with court clerks and supervisors

Paul and Kristy Thornton and the team at Bay Area File helps bridge the gap in a transforming legal landscape by bringing you the best of technology, while still offering personal, physical connections to the court. Whether you are looking to use our efile system and submit your filing yourself or utilize our concierge services and let us do all the work, we have it all available for you online.

Most of the mega companies have gone completely virtual and don’t have offices across the street from the courthouse, like we do. They have the technology, but their service is lacking. We have an office next to the Contra Costa Superior Court and the Alameda County Superior Court. We are thrilled to offer you advanced online filing technology AND the hard-to-find service that caters to your individual business needs.

2023 BOARD OF DIRECTORS

David Erb

David Pearson

Sutter Selleck

Michael Pierson

Ericka McKenna

Ariel Brownell Lee

Dean Christopherson

Patanisha Davis Pierson

Ann Harding Battin

Jonathan Lee

President

President-Elect Secretary Treasurer

Past President

Terry Leoni

Dorian Peters

David Ratner

Ray Robinson

Marta Vanegas

CCCBA EXECUTIVE DIRECTOR

Jody Iorns | 925.370.2548 | jiorns@cccba.org

CCCBA main office 925.686.6900 | www.cccba.org

Barbara Arsedo

LRIS & Moderate Means Director

Jennifer Comages

Membership Director

Emily Day

Systems and Operations Director

Contra Costa LAWYER

Drew Iorns

Admin. Assistant

Carole Lucido

Communications Director

Sarah Marin

Program Coordinator

Anne K. Wolf

Education & Events Director

CONTRA COSTA LAWYER

CO-EDITORS

Alice Cheng

925.233.6222

Lorraine Walsh

925.932.7014

BOARD LIAISON

Marta Vanegas

925.937.5433

COURT LIAISON

Kate Bieker

925.957.5600

DESIGN

Carole Lucido

925.370.2542

ADVERTISING

Carole Lucido

925.370.2542

Corrine Bielejeski 925.752.1826

Rachel Margolis Chapman

925.837.0585

Dorian Peters

925.822.8449

Ray Robinson

925.255.1640

James Wu

The Contra Costa Lawyer (ISSN 1063-4444) is published six times in 2023 by the Contra Costa County Bar Association (CCCBA), 2300 Clayton Road, Suite 520, Concord, CA 94520. Annual subscription of $25 is included in the membership dues. Periodical postage paid at Concord, CA and additional mailing offices. POSTMASTER: send address change to the Contra Costa Lawyer, 2300 Clayton Road, Suite 520, Concord, CA 94520. The Lawyer welcomes and encourages articles and letters from readers. Please send them to contracostalawyer@cccba.org.

The CCCBA reserves the right to edit articles and letters sent in for publication. All editorial material, including editorial comment, appearing herein represents the views of the respective authors and does not necessarily carry the endorsement of the CCCBA or the Board of Directors. Likewise, the publication of any advertisement is not to be construed as an endorsement of the product or service offered unless it is specifically stated in the ad that there is such approval or endorsement.

INSIDE: Criminal Law So much more than guilt vs. innocence

by Rachel Margolis Chapman, Guest Editor

I am often asked why I chose to practice criminal defense. Well, that isn’t entirely true – more specifically, I am asked “how can you possibly represent someone who is probably guilty?” While I find this question irritating for flying in the face of the presumption of innocence, I also enjoy answering it, because criminal defense – and the criminal justice system as a whole – is so much more than guilt vs. innocence.

Above all else, the criminal justice system must be just, and much of criminal defense work involves protecting our clients from being treated unjustly. Is it just that a noncitizen accused of misdemeanor simple possession of a controlled substance faces deportation if convicted? Is it just that law enforcement can misstate the law in a DUI investigation to coerce an arrestee to provide a blood sample without a warrant, in violation of the Fourth Amendment? Is it just for racial bias to play any role at any stage in a criminal trial? When the system is

not just, it is not only the accused who are negatively impacted – trust in law enforcement, public safety, and community solidarity suffer as well.

Since the killing of George Floyd, California has taken steps to try to eradicate racially-discriminatory practices in the criminal justice system, which go beyond intentional discrimination. The California Racial Justice Act (“RJA”), which took effect on January 1, 2021, seeks to remedy this long-standing wrong in criminal cases, and covers discrimination and bias based on race, ethnicity, and national origin. In passing the RJA, the legislature declared “Implicit bias, although often unintentional and unconscious, may inject racism and unfairness into proceedings similar to intentional bias. The intent of the Legislature is not to punish this type of bias, but rather to remedy the harm to the defendant’s case and to the integrity of the judicial system. It is the intent of the Legislature to

ensure that race plays no role at all in seeking or obtaining convictions or in sentencing. It is the intent of the Legislature to reject the conclusion that racial disparities within our criminal justice are inevitable, and to actively work to eradicate them.” (Assem. Bill No. 2542, Stats. 2020, ch. 317, § 2.)

The RJA, which is codified in Penal Code section 745, has since been expanded by the Racial Justice for All Act (Assembly Bill 256), which extended the RJA to convictions obtained prior to January 1, 2021; AB 256 makes the application of the RJA retroactive in stages, and by January 1, 2026, this remedy will be possible for everyone who had a felony conviction or a juvenile adjudication with commitment, regardless of when it occurred. In October of 2022, Governor Gavin Newsom signed Assembly Bill 2799 into law, which limits the use of rap lyrics in criminal court cases; AB

Continued on page 6

Criminal Law

Continued from page 5

2799 requires “a court, in a criminal proceeding where a party seeks to admit as evidence a form of creative expression, to consider specified factors when balancing the probative value of that evidence against the substantial danger of undue prejudice.”

A first of its kind, in October of 2022, the Honorable Clare Maier overturned the murder convictions of two Black men in this county under the RJA, finding that the prosecution had most likely injected racial bias into the trial by quoting the men’s rap lyrics and repeating their use of a racial slur. The court held that, “the use of defendant’s rap

lyrics and videos at their criminal trial, though not done to purposefully invoke racial bias, more likely than not triggered the jury’s implicit racial bias against African American men.”

While these new laws are still in their infancy, and their scope up to much debate, the legislative intent is certainly a step in the right direction towards achieving a more just system.

I am honored to be Guest Editor of this Criminal Law issue, and want to thank those who contributed. It is my hope that this issue sheds light on aspects of the criminal justice system that transcend the limited question of guilt vs. innocence, and provides insight into the work of those who practice in it.

Rachel Margolis Chapman practices criminal defense and is an Associate Attorney at Gagen McCoy. She joined the Gagen McCoy team immediately upon graduating from the University of Southern California Gould School of Law, and is a proud Double Trojan. Rachel is an active member of the Conflict Program and the CCCBA. She currently serves on the CCCBA Editorial Board, and is a Board member of the Women’s Section and Treasurer of the Criminal Law Section.

• Joe Morrill, Founder

• Jennifer McGuire, Partner

• Ritzi Lam, Partner

• Morgan Durham, Attorney

• Ariana Flynn, Attorney

• Kayla Liu, Attorney

• Mia Polo, Attorney

Peremptory Challenges in the Post-George Floyd Era

By Honorable Terri Mockler

California criminal practitioners are quickly learning that the days of kicking a juror because of the way s/he, sits, smiles, or just because the jurors coming up seem “better” are over. Code of Civil Procedure section 231.7, enacted in 2020 and applicable to all criminal jury trials effective January 1, 2022, prohibits the exercise of peremptory challenges based on race, ethnicity, gender, gender identity, sexual orientation, national origin, or religious affiliation. The current law specifically exempts civil jury trials but will apply in civil cases beginning in 2026.

Prior to the enactment of Code of Civil Procedure section 231.7, Code of Civil Procedure section 231.5 prohibited the exercise of a peremptory challenge based on the assumption that the prospective juror was biased merely because of a characteristic defined in Government Code section 11135 (prohibiting discrimination based on race, ethnicity, sexual orientation, etc.) Section 231.5 of the Code of Civil Procedure was enacted in 2000 to codify the opinion issued in People v. Garcia (2000) 77 Cal.App.4th 1269.

In the Garcia case, the prosecutor exercised peremptory challenges against two prospective jurors who, based on their responses in court, were identifiable as lesbians. The defense made a motion under the old Batson/Wheeler standard, a hearing was held, and the trial court found that lesbians and gay men were not a cognizable class under the Batson/ Wheeler standard. The Court of

Appeal disagreed, ruling lesbians and gay men were a cognizable group that had suffered significant discrimination throughout history. CCP section 231.5 has prohibited the exercise of peremptory challenges based on implied bias associated with a juror’s membership in a cognizable group for the past 20 years.

The problem with CCP section 231.5 is that it is declarative only. It establishes no new procedures for determining whether the exercise of peremptory challenges is based on discriminatory reasons, so trial participants must rely upon the age-old Batson/Wheeler standard. That standard places the burden on the objecting party to establish a prima facie case that a peremptory challenge is made for a discriminatory purpose. Only if the objecting party has met this burden, does the court inquire into the basis for the exercise of the peremptory challenge. The court disallows the challenge only if it finds intentional bias in the use of the peremptory challenge by the proponent of the challenge.

The state legislature took note of numerous California criminal cases involving the use of discriminatory peremptory challenges, despite CCP section 231.5 prohibiting them. The intent behind CCP section 231.7 was made clear in the notes to the proposed legislation. “… the existing procedure for determining whether a peremptory challenge was exercised on the basis of

a legally impermissible reason has failed to eliminate that discrimination. In particular, the Legislature finds that requiring proof of intentional bias renders the procedure ineffective and that many of the reasons routinely advanced to justify the exclusion of jurors from protected groups are in fact associated with stereotypes about those groups or otherwise based on unlawful discrimination. Therefore, this legislation designates several justifications as presumptively invalid and provides a remedy for both conscious and unconscious bias in the use of peremptory challenges.” (Chapter 318, Statutes of 2020.)

CCP section 231.7 sets forth the way an objection to the exercise of a peremptory challenge can be made, the court’s obligations once an objection has been raised, the standards of proof in determin-ing whether to grant or deny the objection, and the remedies if the court sustains an objection. The objection must be made before the jury is impaneled. The court must hold a hearing out of the presence of the jury on the objection to the challenge and the justification for the challenge.

When the court is ruling on an objection, the court must hear and consider the objecting party’s bases for the objection and the reasons stated by the party exercising the challenge justifying exclusion of the juror. The proponent of the challenge has the burden of convincing

Peremptory Challenges

Continued from page 8

the court by clear and convincing evidence that an objectively reasonable person would find the basis of the challenge unrelated to the juror’s membership in one of the cognizable classes. As should be obvious, the statute flips the burden of proof from the objecting party to the party seeking to excuse the prospective juror.

The court determines if there is a substantial likelihood that an objectively reasonable person would view one of the prohibited grounds is a factor in the exercise of the peremptory challenge. The court need not find purposeful discrimination to sustain the objection. (CCP section 231.7(d)(1).) Additionally, if the proponent of the challenge states as justifications for excusing the juror reasons listed in the statute as being

inherently suspect (such as skepticism of the criminal justice system or law enforcement, juror’s first language is not English, close association with people who have been arrested/charged with crimes, lack of employment of juror or juror’s family, unmarried with children, dress/attire/personal appearance), the challenge is presumptively invalid. (CCP section 231.7 (e).)

There are several remedies available if the court grants an objection to an improperly exercised peremptory challenge. The court can reseat the juror, provide the objecting party additional challenges, declare a mistrial if requested by the objecting party after a jury has been impaneled, or quash the venire and start selection anew. If the objecting party requests the venire be quashed, it shall be granted. (CCP section 231.7 (h)(1).)

What is the take-away from the new statute? Take very good notes. All participants need to take very detailed notes both to object to the exercise of a challenge and to defend against such an objection. Counsel can no longer assume to have free rein in the exercise of peremptory challenges. This should be a small price to pay to obtain more diverse jury panels.

Judge Mockler serves in a direct-file felony trial department in Martinez.

2024 Board Nominations are OPEN

Should YOU Consider Joining the CCCBA BOARD

of DIRECTORS

Support

1 2 3

CCCBA attorney members in good standing are eligible to join the Board of Directors. The Board seeks candidates who agree to meet the following expectations:

• To possess or acquire a basic understanding of the Contra Costa County Bar Association (CCCBA) and its activities.

• To commit to the mission and values of the Association.

• To represent the CCCBA in a manner consistent with Board decisions.

• To prepare for and regularly attend monthly Board meetings.

• To attend additional meetings and bar-sponsored events as needed.

• To participate on at least one committee or task force.

• To participate in the annual Board Orientation and Training program.

Directors are selected for their experience and personal attributes. Active participation on a CCCBA committee or section leadership is a plus.

Nomination Process:

To be eligible, nominees must be active attorney members of the CCCBA. Any attorney member of the CCCBA may self-nominate by June 1, 2023, for consideration by the Nominations Committee.

If you are interested in serving on the 2024 Board of Directors please submit your written nomination (including statement of interest, resume and 3-4 written references) in a single pdf to: Jody Iorns, Executive Director, CCCBA, 2300 Clayton Rd., Suite 520, Concord, CA 94520

jiorns@cccba.org

Deadline for submitting nominations: June 1, 2023

ADVISING IMMIGRANTS:

Duties

of the Defense Bar, the Prosecutors and the Bench

By Oksana Tsykova

According to the 2021 United States Census Bureau, 25% of Contra Costa County’s population is foreign born. Criminal convictions carry severe and often irreversible consequences to non-citizens, including mandatory deportation, permanent inadmissibility, immigration detention and family separation. In some cases, the immigration consequences are much more severe than the punishment in a criminal case, causing a devastating ripple effect to communities and children who remain without a caregiver or a dependable support structure.

Although immigration consequences differ depending on the individual’s status in the United States, whether someone is undocumented, an asylum seeker, or a permanent resident, counsel must investigate and advise all noncitizens about the immigration consequences of criminal convictions. One cannot simply assume that because a noncitizen has other convictions, is undocumented, or is facing only a misdemeanor, the conviction has little or no effect. Avoiding a conviction or negotiating an immigration-safe plea must always remain a top priority for criminal defense counsel. With a few limited exceptions, even after a criminal conviction is expunged, it will remain a conviction for immigration purposes, often precluding noncitizens from seeking many forms of immigration relief.

Photo by Jhon David on Unsplash

Duties of Criminal Defenders

Any criminal defense counsel must investigate, advise, and mitigate adverse immigration consequences; failing to advise is considered ineffective assistance of counsel. (Padilla v. Kentucky (2010) 559 U.S. 356; People v. Patterson (2017) 2 Cal.5th 885.) This duty is codified in Penal Code §§ 1016.2 and 1016.3, mandating that defense counsel shall provide accurate and affirmative advice about the immigration consequences of a proposed disposition, and when consistent with the goals of/the informed consent of the defendant, and professional standards, defend against those consequences.

Defense counsel’s advice must be case specific, identifying immigration consequences applicable to each individual case. (People v. Soriano (1987) 194 Cal.App.3d 1470.) Counsel’s obligations to defend against adverse immigration consequences continues during the plea negotiations. (People v. Bautista (2004)115 Cal.App.4th 229.) Even if individuals have prior convictions, avoiding a new conviction is still a priority because the old conviction may be vacated for Padilla violations.

Using an immigration intake form to gather immigration history must become one of the main steps during the case intake process. After gathering this information, the attorney should consult with an immigration consequences of criminal convictions counsel (“ICCC”) about the best outcome and the anticipated immigration consequences.

Simply assuming a conviction is safe because it is a misdemeanor is extremely dangerous. A criminal conviction for simple possession of a controlled substance will trigger mandatory ICE detention and a permanent bar to immigration relief, including temporary protected status. Even green card holders who have been in the United States for

decades can be deported if convicted of simple possession of a controlled substance. Any admission related to a controlled substance will make a noncitizen deportable and inadmissible per 8 U.S.C. § 1227 (a)(2) (B) (iiii).

Under 8 U.S. Code § 1182 (Section 212(a)(2) of the Immigration and Nationality Act), individuals eligible for a U Visa as a victim of a crime, or for family reunification cannot obtain immigration benefits if convicted of an aggravated felony or a crime involving moral turpitude (“CIMT”). Pursuant to 8 U.S.C. § 1227 (a)(2)(A)(i), a person convicted of a CIMT within five years of admission and for which a sentence of one year or longer may be imposed, is deportable.

To qualify for immigration relief such as cancellation of removal, VAWA, voluntary departure and even naturalization, an individual must demonstrate good moral character for the preceding five years. Furthermore, serving 180 days or more in custody creates a presumption of bad moral character.

When resolving a case with immigration consequences, defense counsel should utilize a “Palmer plea,” which allows the court to accept a plea without requiring counsel to stipulate to a police report or other documents that may be admissible in immigration court: such as judgement and sentence, complaint or information, plea form, plea colloquy, jury instructions and abstract of judgment. (Shepard v. United States (2005) 544 U.S. 13.)

There is a myriad of rules and regulations counsel must consider when representing noncitizens, and consulting with the immigration consequences attorneys is a must.

Duties of Prosecutors

Under Penal Code § 1016.3 (b), the prosecutor, in the interest of justice,

and in furtherance of the findings and declaration in Section 1016.2, shall consider the avoidance of adverse immigration consequences in plea negotiations as one factor to reach a just resolution.

Deportation is a severe and disproportionate punishment for a noncitizen and the prosecutors should evaluate whether this extreme outcome is warranted based on the nature of the offense and the mitigating factors. By offering immigration-safe dispositions to noncitizens, even if it carries additional terms, prosecutors can achieve a fair and just outcome and avoid extreme punishment. Furthermore, by discussing adverse immigration consequences during the plea negotiations, the prosecutor has an advantage of leveraging the noncitizen to resolve a case on terms that do not carry serious immigration consequences.

Since prosecutorial discretion in plea negotiations has a profound impact on an outcome of a noncitizen’s case, the Contra Costa County’s District Attorney’s Office developed an immigration policy to evaluate cases with potential immigration consequences. The policy states that consideration of immigration consequences is mandatory during plea negotiations, but also notes that victim’s rights must be considered, and every plea must have a factual basis. The policy requires that defense counsel provide, in writing, information about their clients’ status and the adverse immigration consequences. Although there are positive and negative factors in disclosing your clients’ status to the prosecutor, and counsel should consider the risks of providing this confidential information, the policy mandates that no information provided by defense counsel be shared with federal immigration officials.

Among the factors prosecutors consider in crafting an immigration-

Continued on page 14

Advising Immigrants

Continued from page 13

safe plea are severity of the crime, the impact on the victim and the community, the history and the character of the accused, and the impact of the disposition on the present and potential future immigration consequences. They also rely on the factors for aggravation and mitigation listed in California Rules of Court, Rule 4.410, 4.421 and 4.423.

Duties of the Court

Pursuant to Penal Code § 1016.5(a), the court, prior to the acceptance of a guilty or no-contest plea, shall warn the defendant that the offense may “have the consequences of deportation, exclusion from admission to the United States or denial of naturalization.” Although the court must advise about the potential immigration consequences, the court’s advisement does not protect against future claims of ineffective assistance of counsel if defense counsel did not provide competent advice.

The court should not inquire about a person’s immigration status or compel a party or counsel to disclose it in open court unless, after an in-camera hearing, the judge determines that this evidence is admissible, subject to some limited exceptions. (Evidence Code § 351.4(a).)

Although not a duty, the court can play a significant role in administering justice by extending judicial diversion as a disposition. If successfully completed, pretrial judicial diversion is a great option for noncitizens because it does not result in a “conviction” for immigration purposes. Judicial diversion does not require an admission of

guilt, and there is no finding of guilt by the court.

If there is a contention that a noncitizen’s plea should be set aside as invalid, the court will have to evaluate whether a conviction procured through a guilty plea was knowing, intelligent, and voluntary, or whether it was undermined by ineffective assistance of counsel and violated state and federal constitutional standards. (See, e.g., CardosoTlaseca v. Gonzales (9th Cir. 2006) 460 F.3d 1102, 1104.)

Penal Code § 1473.7(a) authorizes vacaturs where the defendant’s “conviction or sentence is legally invalid due to a prej udicial error damaging the moving party’s ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences.” For immi gration purposes, a vacatur must be based on a legal error in the underlying conviction. (Matter of Pickering, 23 I&N 621 (BIA 2003).)

A state court vacatur pursuant to Penal Code § 1473.7 is available to the court as a tool to set aside defective convictions that are based on involuntary pleas or ineffective assistance of counsel.

In summary, the defense bar, the prosecutors, and the bench must be cognizant of their duties related to noncitizen individuals who are facing criminal charges and potentially catastrophic immigration consequences.

Oksana Tsykova is the Director of the Contra Costa Conflict Program, a panel of attorneys whose mission is to provide high-quality legal representation to indigent Contra Costa residents in criminal, probate and immigration matters referred to the panel. Ms. Tsykova practices criminal defense and immigration law.

MCLE Self Study

Earn one hour of Elimination of Bias MCLE credit by answering the questions on the Self Study MCLE test available online at www.cccba.org/cclawyer-magazine/

Send your answers along with a check ($30 per credit hour for CCCBA members/ $45 per credit hour for non-members), to the address on the test form. Certificates are processed within two weeks of receipt. If you prefer to receive the test form via email, contact Anne K. Wolf at awolf@cccba.org or (925) 370-2540.

Local Solutions. Global Reach.

Effective Lawyering –Observations from the Bench

by Honorable Christopher Bowen

First, even after more than 12 years on the bench, I still recall how committed I was to the practice of law and how thoroughly I enjoyed being a lawyer. Second, for me, one of the most pleasurable aspects of being a judge is seeing attorneys who are dedicated to representing their clients and who do so at a very high level of skill and practice. Third, in our Contra Costa County legal community, top-notch lawyering is the rule, and its opposite is mercifully a rare exception. With these thoughts in mind, I offer the following as my own personal observations and musings about some practices that make for effective lawyering, especially when your audience is a bench officer, though certainly many of them could also apply to lawyers making their cases to juries.

What are you asking the judge to do?

Sometimes lawyers get so excited about what they are going to say to the judge (or the jury) – that they forget the importance of focusing in on why the matter is on calendar. Worse yet, lawyers sometimes neglect to include “the ask” – or to tell the judge what relief they are seeking or what order they would like the judge to make. During the five years I spent in Family Law where all of the proceedings –whether hearings or trials – were tried to the court, occasionally attorneys finished their presentations and I was still left to wonder aloud, “What order are you asking me to make?” Whenever that happened, I always considered it a major

“missed opportunity” for attorneys to focus their argument with a clear and specific request for relief. Sometimes, too, in criminal proceedings, attorneys get lost in the weeds of their arguments (often wellresearched and artfully phrased), and never clearly articulate the relief they are seeking or the order they would like the court to make. Fortunately, many lawyers do remember to make “the ask” clear in some way, guiding the bench officer’s attention directly to the issues to be addressed and the decisions to be made.

Remember the purpose of the proceeding

In criminal calendars, most cases will be before the court for a specific reason – an arraignment, a change of plea, “to set” a future court date, to address bail or custodial status, etc. Effective lawyers are keenly aware of why they are there and what the purpose of the hearing is. When one case is on “to set” on a calendar with upwards of 40 matters, it is usually not a great idea to try and expand the scope of the hearing to encompass matters that cannot feasibly be addressed in the few moments allotted for that case. So, if it turns out that there are other aspects of the case that you would like to address but that are not specifically on calendar that day, be prepared to ask to have the case back on calendar on a future date to address those separate issues, in case the court and opposing counsel are not able to accommodate a last-minute desire to address them.

Your reputation is your best asset

When I was just beginning to practice law in the early 1990s, I quickly realized that “reputation” was a prized commodity in the legal profession, and deservedly so. In the practice of criminal law, I learned that there were always a few lawyers, and only a very few, both on the prosecution side and defense counsel, who had

developed reputations as being less than completely trustworthy. Over the years, I saw that those reputations, once established, rarely “got better.” Put another way, what might look to be a minor mistake or misrepresentation could end up taking a lawyer’s reputation for years to come – and perhaps permanently.

At some point early in my practice, I realized that judges and opposing counsel had come generally to accept my representations – whether made on or off the record. This regularly worked to my clients’ advantage.

Experienced practitioners know the value of a solid reputation for ethical conduct and candor with the court and counsel. For attorneys newer to the practice of law, it bears mentioning that a good reputation can take you (and your clients) a long way – and a reputation once called into serious question, can be hard (or impossible) to restore.

Become adept at reading the signals

A judge who has long-since retired once said to me, as I was about to launch into what I was certain was a winning argument in favor of a motion to suppress evidence, “Counsel, if you’re so confident of your argument, why don’t you just submit it?” As a relatively new attorney, I was caught off guard, but realized in that moment that I was getting a signal from the bench – my motion was going to be granted, and I did not need to say all the wonderful things I thought I needed to say.

Developing an ability to “read the signals” from the bench is tricky, and made even more so because different bench officers may have different signals. Of course, when in doubt – or if you are experiencing “radio silence” and not picking up on any signals – you should make

Continued on page 18

When I was asked to share my reflections on “what makes a good attorney” from a bench officer’s perspective, three thoughts immediately came to mind.

Effective Lawyering

Continued from page 17

the arguments you need to make for the party you represent and the position you’re taking on their behalf. I will occasionally ask whether the attorneys would like a preview of my tentative ruling to help guide their arguments. If the attorneys’ subsequent arguments then make me reconsider my tentative position, I let them know, ask appropriate follow-up questions, and make sure that in light of the arguments and any change in my tentative ruling, all parties have had a chance to complete their arguments.

Concluding observations

I have had extended assign ments in both the Criminal and Family Law Divi sions of our court. Our bar and our bench are lucky to have excellent lawyers of many experience levels. In my current assignment, I see outstanding criminal law practitioners every day, and am constantly reminded of the nobility and value of our profession. From this bench officer’s perspective, there is nothing more satisfying than watching good lawyers in action –and having them make their cases confidently, directly (and succinctly!) to advance the interests of the parties they represent.

Christopher R. Bowen has been a judge of the Superior Court since December 2010. He has had assignments in both the Criminal Law and Family Law divisions. He was Supervising Judge in Family Law for two years and is now in his fourth year as Supervising Judge at the George D. Carroll Courthouse in Richmond, where he handles the felony direct calendar. He was elected by his peers to serve as Assistant Presiding Judge in 2023-2024.

The Wellness Committee is on a Roll!

On February 11, CCCBA’s Wellness Committee brought their families and

Elder Law is

CCCBA’s Wellness Committee is Bringing Back the Fun!

Check the CCCBA online events calendar for activities ranging from a picnic at the Lafayette Reservoir to hiking at the Berkeley Steps. Did you hear about the CCCBA Talent Show on August 17? Here’s your chance to show us your talent!

Create Joy!

If you have an idea for a wellness activity, email CCCBA Program Coordinator Sarah Marin at smarin@cccba.org.

Planning

The average survival rate is eight years after being diagnosed with Alzheimer’s — some live as few as three years after diagnosis, while others live as long as 20. Most people with Alzheimer’s don’t die from the disease itself, but from pneumonia, a urinary tract infection or complications from a fall. Until there’s a cure, people with the disease will need caregiving and legal advice. According to the Alzheimer’s Association, 10% of the population age 65 and older has Alzheimer’s disease. Of the 5.5 million people living in the U.S. with Alzheimer’s disease, the majority live at home — often receiving care from family members.

Protect your loved ones, home and independence, call elder law attorney

strapped on their skates at the Golden Skate in San Ramon. Left to right Mariah Garcia, Rex Crandell, Anina Dalsin, Jasmine Jenkins, Berlinie St-Fort and Keith Myers.

Jasmine’s sister Joey steadies Jasmine’s granddaughter Kaia on her first go on roller skates!

“Blood or Breath?”

By Thomas Daly

This all-too-classic question that a police officer asks anyone who has just been arrested for driving under the influence is both frightening and full of many possible constitutional violations. The emotion is real, the potential analysis long and complex, and the legal ramifications both complicated and serious. But, of course, all anyone wants to know is: what is best, should they do a blood or a breath test? This author has heard it from so many friends, both lawyers and non-lawyers; they want help or guidance should they ever be in the terrifying situation of being under investigation for driving under the influence.

To that question, this author can only laugh and give the most classic ”lawyer answer” of all time: it depends.

The way in which DUI defense works can change dramatically if a person refuses a test, does a breath test, does a blood test, or in some instances chooses to do both (generally, it is not an ideal situation to do both.)

There are defenses that are unique to one testing device versus the other. Calibration and maintenance logs in a breath testing case can be

helpful if they show the breathalyzer device was not working properly. Blood testing usually sets up a greater amount of time between the time of driving and time of testing, and errors may occur in the testing process. Obviously, there are many, many more issues that are relevant to either or both tests. For the purposes of this discussion, please note that testing via the Preliminary Alcohol Screening (PAS) device may be refused, as it is not a breathalyzer.

One main difference that has been a subject of intense litigation for the past several years is the varying Fourth Amendment implications of each test. The Fourth Amendment of the United States Constitution prohibits unreasonable searches, and the taking of a blood sample or the administration of a breath test is undoubtedly a “search.”

For decades, the state of the law in obtaining toxicology evidence was seemingly simple. The landmark case of Schmerber v. California (1966) 384 U.S. 757, essentially held that if a person refuses to consent to a test, the officer can forcibly obtain a blood sample. The basis for this was that there was no time or ability to obtain a warrant and the dissipation of alcohol in the human body constituted an exigent circumstance.

This finally started to change nearly 50 years later in McNeely v. Missouri (2013) 569 U.S. 141.

The McNeely court recognized that, while an exigency could still justify a warrantless blood draw, technology has changed and the ability to quickly obtain a warrant is now possible. McNeely did not do away with exigency as a basis for a blood draw, but it did make it much more difficult for the police and prosecution to justify a blood draw under exigency. Most local police departments have a standard

two-page warrant application for a blood draw which can be electronically submitted to an on-call judge. If the police have time to get the warrant, then they should do that. To argue that the blood was taken under exigent circumstances likely requires some unique reason as to why law enforcement could not obtain a warrant.

A few years later, the Supreme Court decided Birchfield v. North Dakota (2016) 579 U.S. 438. In Birchfield, the court considered three DUI cases together. They concluded that blood tests are different than breath tests and that the former involves a greater intrusion, and therefore is afforded greater protection under the Fourth Amendment. Simply put, the court held that the Fourth Amendment permits warrantless breath tests, but not blood tests, incident to arrest for drunk driving.

Cases have continued to roll in, trying to analyze when a blood test can be lawfully taken. A valid warrant justifies the test, but outside of a warrant, there must be a valid exception to the warrant requirement. The most common exception relied upon is consent.

But this then begs the question, what is “valid consent’?” Remember the case, Bumper v. North Carolina (1967) 391 U.S. 543, from law school? The court discussed that there is a difference between consent that is freely and voluntarily given and acquiescence to a claim of lawful authority.

The police consistently rely on the supposed requirement to submit to a chemical test (“implied consent”) which is codified at Vehicle Code section 23612. This is the code section that mandates DMV administrative penalties for DUI

and states that refusal to submit to a chemical test can result in a longer driver’s license suspension. The police “admonish” a DUI suspect of the “obligation” to submit to a test. Some officers are better than others at actually explaining the distinction. Some do a good job of explaining that refusal of the test is an option but will result in more significant consequences; some explain it poorly or not at all. This author has had cases where officers simply state that the driver is required to submit to a chemical test, and the driver responds only by saying “okay.”

Is that valid consent? Is it free and voluntary? Or is it acquiescence to a claim of lawful authority?

For a criminal defense attorney, it is certainly an opening to file a motion to suppress evidence for a Fourth Amendment violation.

So, what’s best?

Blood?

Breath?

Refuse to give consent?

There is probably no right or wrong answer. Each case is so unique that different strategies will evolve regardless of what test was, or was not, done. However, knowing that the defenses and Fourth Amendment implications are different for each test is a good starting point for any case.

Thomas Daly is a local criminal and DUI defense attorney and has been practicing since 2013. Thomas practices primarily in Contra Costa County and is a member of the Contra Costa County Conflicts Panel and its advisory committee.

COVERAGE THAT PROMISES TO PROTECT. BUILT WITH YOU IN MIND.

Becoming a member of Lawyers’ Mutual is more than choosing an insurance provider, it’s joining a community of your peers and receiving our promise to protect you.

All of our innovative policies are designed in conjunction with underwriting, claims and insurance experts who hold over 100 years of experience in the legal malpractice industry.

Member Benefits Continuing Legal Education Cyber Coverage

Unique programs, specialty rates, credit card payments, instant financing and exclusive member benefits are all part of your Lawyers’ Mutual policy that has made us the premier provider for the past 43 years.

Protect yourself. Protect your clients. Protect your future. www.lawyersmutual.com

Our strength is your insurance

Community Lawyering Towards Collective Safety, Justice and Belonging

by Carl Takei and Glenn Katon, Asian Law Caucus

Since 1972, Asian Law Caucus (ALC) has defended communities throughout California from racism, discrimination, and hate violence. Among our earliest cases, ALC defended youth in San Francisco’s Chinatown who were targeted by racist police sweeps and dragnets quite simply because of who they were. Around the same time, ALC lawyers were also filing first-ever lawsuits to defend immigrant garment workers who were being forced to work without pay and in hazardous conditions.

In public policy debates and courtrooms, the issues surrounding these cases are often siloed from one another. But, over the course of our history and for the communities we serve – low-income Asian, Pacific Islander, Arab, and Middle Eastern communities – they illuminate the root causes of violence and a lack of safety. We all deserve to go to work and school, walk down the street, and relax with our families in safety and peace. Yet, when communities are denied housing, food, medical and mental health care, and jobs that provide fair pay and workplaces free of harassment and discrimination, safety becomes elusive.

We see this in our work every day. In Siskiyou County, for example, Hmong and other Asian residents have been subjected to a systematic campaign of racist hostility and persecution by the local sheriff’s department and county officials. Community members have not only been denied their constitutional rights, but have also been blocked from water they need for health and hygiene and to protect themselves from wildfires. In 2022, we filed a class action lawsuit1 with the ACLU of Northern California and Covington & Burling LLP against this horrific

treatment and resulting humanitarian crisis. The path to safety is not just affirming someone’s legal rights – it’s also meeting their basic needs.

More recently, ALC was involved in the emergency response to the mass shooting in Half Moon Bay alongside many other Bay Area organizations. Farmwork families impacted by the shooting are grappling now with pressing needs for housing because their homes on the farm have become a crime scene. They are wrestling with the impossible choice between losing the wages they need to survive or returning to work after the trauma of the shooting. We cannot create a safer future without reckoning with the reality that farmworkers are among the most oppressed workforces in the U.S. In community statement2 with dozens of Asian and Latinx groups, we shared that “for generations, U.S. systems of immigration, labor, and capitalism have exploited a mostly immigrant workforce, benefitting from their unconscionable poverty, language and community isolation, and distrust of government agencies because of the harm that also comes from these interactions.”

As we join with legal aid, advocacy, and other partners to prevent violence and help community members heal after harm, we’re continually applying what we’ve learned from our clients to hone a framework for community lawyering rooted in meeting people’s needs, strengthening cross-community solidarity, and building the safety infrastructure that has most often proven to prevent interpersonal and state violence in the first place.

Continued on page 26

Collective Safety, Justice and Belonging

Continued from page 25

As part of this, we’re currently developing new resources to help Asian American victims of violence exercise greater agency within the criminal legal system. Too often, survivors and victims do not have the resources they need to understand complicated and opaque legal systems, let alone know how to effectively navigate them to advocate for what they need. We saw this in Half Moon Bay as Chinese and Mexican farmworkers sought clear, trusted information about their rights after experiencing violence in the workplace. With partners like California Rural Legal Assistance, Chinese Progressive Association, and SIREN

Immigrant Rights, we developed know-your-rights resources in Spanish, simplified and traditional Chinese, and English to help people make the right decisions for themselves and their loved ones.

With the support of California’s historic API Equity Budget, we are also working to fill longstanding gaps in how our communities are resourced. Police and prosecution are frequently identified as the only available response for addressing violence and hate incidents. That is because for decades, federal, state, and local governments have persistently increased police and carceral resources, simultaneously cut funding for social services and housing, and refused to adequately fund programs that can heal, provide accountability, and disrupt cycles of punishment, poverty, and family separation.

In Oakland and other parts of the Bay, community members and orga-

nizations - many of whom are led and staffed by Black Californiansare launching restorative justice and transformative justice programs that achieve these goals. Yet limited funding has meant that these services are regularly not available in a linguistically and culturally sensitive manner for Asian American communities.

Even as we develop resources and programs specific to the vast diversity of languages and cultures within the Asian Pacific Islander umbrella, we know that the challenges our clients and communities face are intertwined with those faced by Black, Indigenous, Latinx, LGBTQ+, Muslim, Jewish, and other communities subject to fear-mongering and discriminatory attacks. Cross-community solidarity deeply informs our work, whether as part of a multiracial coalition3 seeking to end the double punishment of immigrant and refugee community members in California or with San Francisco communities to end pretext stops.4

Over the past decade, ALC and other immigrant rights organizations have been organizing to change laws that amplify the effects of racism in federal immigration laws which disproportionately harm Black immigrants. Through broadlysupported laws like the TRUTH Act, TRUST Act, and Values Act, Californians are disentangling ICE detention and deportation from our lives and livelihoods. Today, we’re continuing to advance a community-led vision of immigrant justice in counties and in Sacramento - one that guarantees when any Californian serves their sentence in prison or jail they are reunited with their loved ones, no matter where they were born.

While the challenges to creating sustained community safety are many, we’re encouraged and inspired by the work of other civil rights and safety practitioners,

CCCBA Celebrates Lunar New Year

including the Contra Costa Immigrant Rights Alliance and Asian Pacific Environmental Network (APEN). Together, we are committed to solutions that lead us to a safer, better world.

1. https://www.advancingjustice-alc.org/ news-resources/news/siskiyou-county-sheriffpersecute-asian-americans-class-action-lawsuitcharges

2 https://www.advancingjustice-alc.org/ news-resources/news/latinx-asian-communities-unites-support-hmb-victims

3. https://twitter.com/iceoutofca

4. https://www.advancingjustice-alc.org/media/ API-letter-in-support-of-pretext-stops-policy-1.10.23.pdf

On February 24, attorneys and judges and their families and frends came out to Sichuan House in Walnut Creek for the 6th annual Lunar New Year celebration. Top row: Barbara Suskind and newly-appointed Judge Palvir Shoker | Mengting Xu and Patanisha Davis Pierson | Mika Domingo with Chris Chin and Alice Cheng. Second row: Judge Glenn Kim and James Wu | Jim Yu, Steven Kahn and Ben Zicherman | David Ratner, CCCBA Board President David Erb, and David Pearson | Kristen Tabone and Sarah Marin

Glenn Katon is litigation director at the Asian Law Caucus. Before joining ALC, he had a civil rights law firm, was legal director at Muslim Advocates, and was a senior staff attorney at the ACLU of Florida.

Carl Takei is a senior staff attorney at ALC and leads the organization’s criminal justice reform program. Carl was previously a senior staff attorney at the ACLU and is a longtime co-chair of Tsuru for Solidarity.

For more information or to learn how you can get involved in the Asian Law Caucus’ community safety efforts and litigation, please reach out at alc@advancingjustice-alc.org.

The Justice James J . Marchiano

DISTINGUISHED SERVICE AWARD

Nominations are open now for the third annual Justice James J. Marchiano Distinguished Service Award. This award will go to a CCCBA member who volunteers his or her time, either in a legal or non-legal capacity, to improve the circumstances of others and changes lives for the better in our community. To be considered for the award, a member can self-nominate or be nominated by someone else. Download the application and read about the inspiring recipients of the Justice James J. Marchiano Distinguished Service Award, from the past two years, at www.cccba.org/give-back/ pro-bono-recognition

Deadline: Please send the completed award application to Anne K. Wolf at awolf@cccba.org no later than July 17, 2023 at 5:00 pm.

PRO BONO HONOR ROLL

If you are one of the many CCCBA members who help out in their communities in a legal or nonlegal capacity, we hope you will enter the CCCBA Pro Bono Honor Roll. Any CCCBA member who has volunteered 50 or more hours over the period September 1, 2022 – August 31, 2023 is eligible for the Pro Bono Honor Roll. For more information visit www.cccba.org/give-back/pro-bono-recognition/

At the Bar Fund Benefit this fall, the Justice James J. Marchiano Distinguished Service Award will be presented and the recipients of the Pro Bono Honor Roll will be honored. We hope to see you at this uplifting event.

Document Nightmare: Tools for Data Management in Criminal Cases

By Daniel Horowitz & Molly Northrup

Criminal cases are becoming civil litigation. Body-worn camera footage, social media, cell phone dumps, recorded witness interviews, and other electronically stored information (“ESI”) make every serious felony a data management puzzle. The tools and technology used in massive civil cases by huge firms are often out of reach of normal and smaller offices due to cost, volume, or other limiting factors. However, some programs and strategies have been modified for a more hands-on “by-the-lawyer” approach used by Federal Defender’s offices and firms like the one owned by Horowitz. Likewise, modern discovery companies have catered their products to be small-firm friendly and therefore require very little training for the modern lawyer to become proficient. Outlined below are just some of the basics.

1 . Processing is Intelligence

Your brain can organize files dozens of different ways: by date, author, file type (e-mail or text), character,

substance, relevance, related issue, and so on. Software recommended in this article such as Logikcull will provide subsets of documents based upon a wide variety of search criteria. When I am working on a criminal case, I upload police reports the way they were created – as separate reports by different officers, dispatchers and other personnel. Forget the use of the word “report.” A report equals a manila folder with papers in it. An individual can create all sorts of manila folders. For example, I can create a search where only a single author’s reports are produced. I can alternatively create a search where the person is not the author but is mentioned by others. I can selectively create a report that mentions the word “guns.” The options are as endless as your imagination. The system we use allows for rapid bulk keyword searching so that you can create a grouping of search words – whether Boolean searches, proximity searches, wildcard searches, or all of the above – all in one large, comprehensive search.

Continued on page 28

Document Nightmare

Continued from page 5

2 . There are No Videos Without Transcripts

There is no such thing as a standalone audio or video recording. Use Rev, Scribie, GMR Transcription or another service to transcribe your videos and time stamp the transcript to correspond to the recording. Unless the video is simply a dog burping, transcribe it. Logikcull, Relativity, and similar programs automatically generate time stamped transcripts when you upload the video files to the system.

3 . Metadata is Useless Until it Isn’t

Clicking “File” and “Info” on a Word document tells you who first created it and who last edited it. Substance such as this “who” and “last edited” is called metadata. Logikcull and similar programs allow you to comb documents and, with the click of a button, you can see the metadata. Metadata includes “all of the contextual, processing, and use information needed to identify and certify the scope, authenticity, and integrity of active or archival electronic information or records.” Metadata is not limited to the information depicting who sent and received an e-mail and when. Full metadata can show complex pathways, forwarding, dates, times and more detailed information. Sometimes this metadata can show whether the e-mail provided to you has been altered or if the attachment to the e-mail was edited before it was discovered to you. Metadata isn’t always relevant, and sometimes only certain types of metadata will be relevant to a case. In a recent case, a letter to an insurance company (alleged) crime victim was signed by the prosecutor but the metadata showed that it was authored by his

investigator. The letter failed to ask for key exculpatory evidence and the metadata supported our defense of a poor investigation led by a biased police officer.

4 . Get the Real Data

Civil lawyers get the “native format” of documents. Criminal attorneys are used to obtaining PDF printouts that obscure metadata. In many cases, an absence of metadata may not matter, but sometimes it does. Have you ever seen a case where you wonder whether an officer opened their computer and changed some (key) part of the report? The original report date remains but the new report (too) conveniently tracks later located evidence. Without the report in native format, you can not prove the date that the report was altered, when, or how. You need to demand the individual report in the original form that it was created.

There is little case law on your right to discovery provided in “native format” with metadata but the civil discovery cases strongly support the argument that discovery in formats that hide metadata do not comply with the law. See for example, Ellis v Toshiba Am. Info. Sys., Inc. (2013) 218 Cal.App.4th 853, 858-859, holding that if the requesting party shows that the format is not “reasonably usable” and that the native format, with accompanying metadata, meets the criteria of reasonably usable, while the PDF format does not, the original “native” format must be provided. (See also Cal. Judges Benchbook Civ. Proc. Discovery,20.1; Weil et al., Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2022) ¶ 8:1458.) In terms of criminal cases, civil cases can be cited, and the fact remains that large PDF police report files and references to e-mails and photographs without metadata are not full provisions of all of the information in the discovery. The Committee Notes on Rules for the Federal Rules of Criminal Procedure’s 2009 Amendment specify that

the term “ESI” is drawn from Rule 34(a) of the Federal Rules of Civil Procedure. (See also United States v. O’Keefe (2008) 537 F.Supp.2d 14.)

5 . Other Programs

The massive document managers are not the end of the processing. Years ago I helped develop the protocols to use Casemap and dtSearch for trial preparation and at trial. Now, you can use Logikcull to find the most relevant documents in your case and send them electronically to Casemap. Within Casemap, you can open each document and highlight small portions relevant to your case. For example, if a witness says “The shooter had a blue shirt,” you would highlight that element and it gets sent to a “FACT” field. That “FACT” is automatically linked to the source document. Each fact can be further refined. You can create custom issue fields such as “Shooter Described,” “Number of Shots,” “My Client Mentioned by Name,” “Clothing Description.” The “blue shirt” fact gets a check mark in the box for the “Shooter Described” and “Clothing Description” issue (or maybe only the “Clothing Description” issue). Later, after you have entered hundreds of similar facts you can tell Casemap to create a report that shows the FACT that links to each of the ISSUES you created. Each fact always has a link so you can immediately go to the source document.

Finally, you can also use dtSearch which indexes your documents and lets you do a precise Boolean search to find key elements. This tool is multifaceted and is useful from initial discovery analysis all the way through trial. It allows you to search and sort through tens of thousands of documents quickly. For example, if a witness on the stand testifies that the shooter was wearing a blue shirt and your client was wearing a blue shirt – search for “shirt” within ten words of [shooter or shot or gun or bullets]. You may find this witness’ statement about the color of your client’s shirt

or someone else’s. If someone said “red” instead of “blue,” good luck, but I am sure you’ll find a way to get that into evidence.

6 . It’s Free (Kind of)

Using Logikcull, Casemap and dtSearch can cost. Under the ABA Model Rule 1.5 or the California Rules of Professional Conduct, Rule 1.5, which govern fees, there is no prohibition against charging clients the costs for software that you use on their case. If your client cannot afford the added expense of these necessary items, you can petition the court for funding. On appointed cases, it is a necessary cost.

This is a quick overview. If you want to learn more about these programs, the Federal Public Defender’s

Offices have excellent training materials. Many of the soft ware vendors mentioned here, as well as other mainstream vendors, include hands-on training as part of the onboarding package as well.

Daniel Horowitz has been a State Bar certified criminal defense specialist for 30 years. He was a member of the first-ever United States District Court (Northern District of California) committee that established criminal case electronic discovery standards. He has been a beta tester for Casemap and dtSearch, two document management software solutions widely used in the criminal defense community. Daniel’s office is in Lafayette.

Bridging the Gap 2023

After receiving her Bachelors of Linguistics (2017), with an Emphasis in Chinese from the University of California Santa Barbara, Molly Northrup’s instructors encouraged her to pursue further studies in China. After being awarded the Chinese Government Scholarship, she earned her Masters in Business Administration (2019) at the Beijing Institute of Technology, one of the few triple-crown accredited business schools in the world, holding AMBA, EQUIS and AACSB accreditations. She is currently a paralegal at the Law Office of Daniel Horowitz and a law student. Ms. Northrup has extensive experience in litigation software and e-discovery.

Presiding Judge Ed Weil (center) hosted eight newly inducted attorneys for the 2023 Bridging the Gap program in Martinez on March 3.

They spent a day getting acquainted with the Contra Costa County Bar Association, the Superior Court, judges and local practitioners while earning 4 units of MCLE credit!

Be on the lookout for these new CCCBA members and welcome them!

Left to right: Richard Rose, Jessica Martinez Zepeda, Noe-Marie Claraty, Kourtney Speer, Judge Weil, Melanie Violan, Henry Aho, Christopher Wilson, Martin Johnson

The Investiture of Judge Shara E. Beltramo

On Thursday March 30, Hon. Shara E. Beltramo was inducted into the Superior Court of California County of Contra Costa.

Hon. Glenn Kim was the Master of Ceremonies

Erin Kingsbury, Deputy DA, Alameda County District Attorney’s Office

Hon. Jon R. Rolefson (Ret.) Hon. Jason B. Chin

Judge Beltramo took the oath of office from Hon. Harry E. Hull, Associate Justice of the California Court of Appeal, Third Appellate District.

She accepted the gavel from David Pearson, CCCBA President Elect.

After the ceremony, a reception was held at Del Cielo Brewing Co. in Martinez.

CCCBA’S Learning by Doing: 3-day Trial Practice Course

Back

Instructors included Commissioner Lowell Richards (standing), Craig Nevin, David Erb, Robin Pierson, Adam Carlson and Jonathan Lee

The CCCBA Education Committee and the CCCBA Litigation Section took educational programming at CCCBA in a new and exciting direction.

On March 9, 10 & 11, CCCBA held an in-person, intensive, immersive, interactive and on-your-feet trial skills practicum which culminated in three mock jury trials.

Under the guidance of program designer Jonathan Lee and his co-lead instructors Adam Carlson and Comm. Lowell Richards(Ret.), and a faculty of distinguished trial lawyers and jurists, 16 participants were taught, in simple, straightforward ways, the preparation needed to take a case to trial: from voir dire all the way to closing argument.

Everyone stepped beyond their comfort zone and excelled! Participant Fulvio A. Picerno captured the sentiment of all the participants when he said, “This was one of the best legal education courses I have ever taken.”

We can’t wait to do this again for our members! – STAY TUNED!

Front row: Kellie Simon, Rani Breuer, Adam Carlson, Fulvio Picerno

Center row: Craig Nevin, Leslie Azcona, Lisa Edgar-Dickman, Leighton Burrey, Stephen Seto, Marta Vanegas, Ray Robinson, Richard Rose

row: Rich Ballesteros, Judge Dorothy Chou Proudfoot, David Erb, Robin Pearson, Joe Nykodym, Aaron Doyle, Jonathan Lee, Comm. Lowell Richards (Ret.)

Thank you to Program Directors Jonathan Lee (right) - U.S. Attorney’s Office, and Adam Carlson (left)Casper, Meadows, Schwartz & Cook

The individualized and immersive learning experience included Instructors working in small group breakout sessions.

“Oneofthebestlegaleducation courses I have ever attended!”

CALENDAR

UPCOMING EVENTS | OVERVIEW

The Contra Costa County Bar Association certifies that the MCLE activities listed below have been approved for the specific MCLE credit indicated, by the State Bar of California, Provider #393.

May 4 | Estate Planning & Probate Section

30th Annual Estate Planning Symposium (In Person / Hybrid)

Speakers: Somita Basu | Jeff Coons | Esther Kim | Joe Morrill | Zakiya Norton

1:00 pm - 6:00 pm | Lesher Center for the Arts, Margaret Lesher Theatre, 1601 Civic Drive, Walnut Creek

1.5 hours Estate Planning & Probate Specialization and General MCLE credit and 1.5 hour Implicit Bias MCLE credit $75 Estate Planning & Probate Section members, $65 Barristers and Law Student Section members, $90 CCCBA members, $95 non members

Sponsor: Mechanics Bank, Wealth Management

May 9 | ADR Section

Negotiating the Relational Estate (Webinar)

Speaker: David A. Fink, ADR Services, Inc.

4:30 pm – 5:30 pm | 1 hour General MCLE credit | Free for members of the ADR Section, $15 for Barristers, $20 for Estate Planning & Probate and Family Law Section members, $30 CCCBA members, $45 non members

May 12 | Solo/Small Firm Section

Solo/Small Firm Section Summit

– Working Smarter not Harder (In Person / Hybrid)

Speakers: Hon. Ayana Young | Heidi CoadHermelin | Janet Everson | Adam Koss | Rio Peterson

11:30 am – 6:00 pm | Lafayette Library, 3491 Mt. Diablo Blvd., Lafayette | 2.5 hours General and 1.5 hours Legal Ethics MCLE credit | $50 Solo/Small Firm Section members, $75 CCCBA members, $125 non members

Sponsors: Leoni Law | Feldman Law Group | ABA Retirement Program

May 16 | Criminal Section

Criminal Q&A –Bench/Bar Lunch 2023 (In Person / Hybrid)

Speakers: Hon. David Goldstein and the CCC Superior Court Martinez Criminal Bench

Noon – 1:15 pm | A F Bray Courthouse, 1020 Ward Street, Martinez | Includes box lunch | $25 CCCBA members, $45 non members

May 17 | Solo /Small Firm Section

Breakfast with the Solo / Small Firm Section (In Person)

7:30 am - 9:00 am | MJ’s Cafe and Bakery, 655 First St., Brentwood | FREE for members of the Solo Section, $20 others

May 17 | Litigation Section

E-Filings: Everything You Need to Know and More –CCC Superior Court (Webinar)

Speakers: Andrew Adams | Matt Malone Noon - 1:15 pm | $10 for CCCBA members, $45 non members

May 20 | Wellness Committee

Let’s Have a Picnic (In Person) Lafayette Reservoir, 3849 Mt. Diablo Blvd., Lafayette | For details check the calendar www.cccba.org/attorney-events

For more information on these programs, please contact Anne Wolf, CCCBA Education & Events Director at awolf@cccba.org or (925) 370-2540 or check the calendar www.cccba.org/attorney-events

May 25 | CCCBA

Civil Q&A –

Bench/Bar Lunch 2023

(In Person / Hybrid)

Invited Speakers: Hon. Jill Fannin and the CCC Superior Court Martinez Civil Bench Noon – 1:15 pm | Wakefield Taylor Courthouse, 725 Court Street, Martinez | Includes box lunch | $25 CCCBA members, $45 non members

June 11 | Wellness Committee

Let’s Go Hiking (In Person)

For details check the calendar www.cccba. org/attorney-events

June 13 | ADR Section

Mediating with SelfRepresented Litigants – 2023

(Zoom Meeting)

Speakers: Hon. Joscelyn Jones | Margaret Grover | Ron Mullin | Malcolm Sher

Noon - 1:30 pm | 1 hour General, 0.5 hour Legal Ethics MCLE credit | $15 members of the ADR Section, $20 Barristes, $30 CCCBA members, $45 non members

June 21 | Solo /Small Firm Section

Breakfast with the Solo/Small Firm Section

(In Person)

7:30 am - 9:00 am | Sunrise Bistro, 1375 S. California Blvd., Walnut Creek | FREE for members of the Solo Section, $20 others

June 22 | Barristers Section

All Section Summer Mixer

(In Person)

5:30 pm - 8:00 pm | Side Gate Brewing, 1822 Grant St., Concord | FREE CCCBA members, $25 others

June 29 | Women’s Section

Women’s Section

Annual Luncheon

(In Person/Hybrid)

Speaker: Hon. Shara Beltramo

11:45 am - 1:15 pm | Concord Hilton, 1970 Diamond Blvd., Concord | For details check the calendar www.cccba.org/attorney-events

Each year we receive over 9,000 calls through our Lawyer Referral & Information line from potential clients seeking referral to an attorney Registered attorneys receive referrals on a rotating basis for panels they choose, including:

Personal Injury

Elder Law and many more

CLASSIFIEDS

2 OFFICE SPACES AVAILABLE

Where: 3445 Golden Gate Way, Lafayette Law firm since 1955.

Details: Creekside setting with ample free parking, excellent law library, easy access to intercity jogging trail. Reasonable rent.

Interested? Call Stan Pedder or MacKenzie Bush at (925) 283-6816.

Advertising Space Available

Did you know that you can run classified ads in Contra Costa Lawyer and also on the CCCBA website? Classified ads run on the CCCBA website for 30 days. Members pay just $75 per month for online classified ads that can include photos or graphics. For information, please contact Carole Lucido, CCCBA Communications Director at (925) 370-2542 or clucido@ cccba.org.

Advertiser Index

Advertising Opportunities Contra Costa Lawyer MagazinePrint and Online

Contra Costa LAWYER

The Contra Costa Lawyer is the official publication of the Contra Costa County Bar Association. It is published every other month for an audience of more than 1,500 attorneys, judges and court officials, law libraries and public officials involved with the administration of justice in Contra Costa County and has a readership of approximately 4,500 online. Both the print and online editions of Contra Costa Lawyer have won awards of excellence from the National Association of Bar Executives.

Cost effective display and classified advertising opportunities are available in the print magazine. Online ads are available on the CCCBA’s website: www.cccba.org. View and download the complete media kit www.cccba.org/flyer/2023/cccbaadkit-2023.pdf

Contact CCCBA Communications Director Carole Lucido if you have questions, clucido@cccba.org or (925) 370-2542.

Criminal Law

We gratefully acknowledge our

2023 SUSTAINING LAW FIRMS

Firms with 30+ attorneys:

Miller Starr Regalia

Firms with 20-29 attorneys:

Bowles & Verna, LLP

Littler Mendelson, P.C.

Firms with 11-19 attorneys:

Brothers Smith, LLP

Clapp Moroney Vucinich Beeman Scheley

Doyle Quane

Gagen, McCoy, McMahon, Koss, Markowitz & Fanucci

Greenan Peffer Sallander & Lally LLP

Kilpatrick Townsend & Stockton

McNamara, Ambacher, Wheeler, Hirsig & Gray, LLP

Whiting, Ross, Abel & Campbell, LLP

Firms with 5-10 attorneys:

Acuna Regli

Brown, Gee & Wenger, LLP

Casper, Meadows, Schwartz & Cook

Candelaria PC

Craddick, Candland & Conti

Donahue Fitzgerald, LLP

Edrington, Schirmer & Murphy

Ferber Law, APC

Galloway, Lucchese, Everson & Picchi

Gillin, Jacobson, Ellis, Larsen & Lucey

Hartog Baer Zabronsky & Verriere, APC

Law Offices of Joseph H. Wolch

Livingston Law Firm, P.C.

Morrill Law

Patton Sullivan Brodehl LLP

Temmerman Cilley & Kohlman LLP