California Lawyer


July 2014

Public Defenders

I enjoyed Michael Estrin's article ["Pleading for Justice," April], but I am concerned about two inaccuracies, one small and one large.

On page 16, he describes the charge of carrying a concealed firearm as a wobbler. In fact, that charge by itself is a misdemeanor. Additional facts must be pled and proven to raise it to a wobbler. The felon-in-possession charge is mentioned almost as an afterthought. But that is a straight felony, punishable in state prison, not "jail" as stated on page 19. Anyone familiar with criminal law would realize this is the main charge, and the concealed-weapon charge is the throwaway.

The larger inaccuracy is when Estrin said Marcus pleaded no contest to a crime he didn't commit: possessing a gun as a convicted felon. If he handled the gun, then he was in possession of it at that moment. The article goes on and on about who owned the gun and who placed it there, but that is just a sideshow once Marcus admits that he held it. - Alessio Larrabee, Red Bluff

I have practiced in the California criminal courts for more than 16 years - in Orange County, Sacramento, the San Francisco Bay Area, and as far north as Tehama, Shasta, and Siskiyou counties. In that time I have worked as a deputy district attorney, a private criminal defense attorney, and a deputy attorney general.

I have consistently observed that many of the best lawyers in any courthouse are the public defenders. Nothing substitutes for experience, and it is the sheer volume of cases that they handle that gives the best public defenders the judgment needed to decide what a case is worth, when to plead, and when to go to trial.

Of course, prosecutors often face even heavier workloads, together with grave ethics responsibilities and the duty to seek justice for crime victims.

It is the adversarial pairing of these two groups of lawyers that makes our criminal justice system - while imperfect - the best in the world. With that in mind, it should be noted, contrary to Estrin's characterization, that the defendant did not plead no contest to "a crime he didn't commit." The undisputed facts set out in the article show Marcus is a convicted felon who knowingly exercised physical control over the weapon, both directly (by handling it) and indirectly (by knowingly driving his car with the weapon concealed under his seat). The law does not require that he own the gun in order to possess it. Under the law of joint constructive possession, more than one person may possess an item at the same time.

The district attorney in the case was right to insist on a plea to the charge, and Saris was right to advise her client to accept the offer. This was, in fact, "Pleading for Justice." - Brian G. Popkes, Deputy Attorney General, Sacramento

The Editor responds: The readers assume that facts revealed by the writer tying Marcus to his friend's handgun were also known to prosecutors. They were not. At trial, fingerprint analysis could have established Marcus's constructive possession of the gun, so he chose a plea bargain. The point of the story, very simply, is that Marcus took legal responsibility for a handgun that was not his.

I thoroughly enjoyed your recent article featuring L.A. County Deputy Public Defender Elena Saris. And I heartily applaud her and her colleagues for the fabulous job they do, under most-difficult circumstances. My first years as a lawyer, from late 1973 to mid-1979, were spent in that office. It was the best training I could have hoped for, and the lessons I learned there of integrity, thoroughness, and candor remain invaluable. - Philip I. Moncharsh, Santa Barbara

If Deputy Public Defender Richard La Fianza's statement that "innocent people are routinely pleading guilty to felonies" is true, then he ought to be fired for incompetence. I prosecuted criminal cases for 35 years. La Fianza's statement is idiotic and unsupported by evidence. - Clyde A. Boyd, Yucaipa

Not only are some observations in the story about private counsel off the mark, but - contrary to comments in the article - most DAs I know aren't obsessed with trial wins and losses, because they "win" 90 percent or more of their cases through plea bargains.

As a private defense attorney, I only wish I could tailor my record "by choosing cases based solely on their likelihood of success." Unfortunately, both the need for paying clients and ethics concerns preclude the luxury of cherry-picking cases. Unlike PDs, who get cases only after filing, I am sometimes retained earlier, and that can allow me to present information to the filing deputy, which can then result in dismissals or reduced charges. While it's true that the usual assignment of a PD to one court can produce more effective disposition, familiarity just as often can fray relations and adversely affect outcomes. And, ironically, handling cases all over the state has made me a better lawyer by forcing me out of my comfort zone. PDs do deserve much of the praise given in the article, and private counsel and prosecutors do merit some criticism, but PDs don't have a lock on effective and caring representation of clients. - Jonathan Mandel, Encino

Anchors Aweigh, Baby

I am amazed that you published the apparently unedited, one-sided story "Having a Citizen Baby" [ESQ., April]. It states that parents having a baby in the United States are "clearing a much faster route for their families to permanent residency," and a page later the piece again refers to it as a "fast track to legal residency." These references blur the unmentioned fact that a child can only begin the process to sponsor a parent after the child reaches age 21.

As an immigration specialist, I can imagine being compared to a criminal lawyer who tells his client, "You're on a fast track to release from jail! Just 21 more years!" Please leave the phony anchor-baby hit piece myths to Fox News. - Robert Baizer, Oakland

Contact Marketing

"The Elevator Pitch" [Practical Tips, April] is a very good summary of this significant aspect of marketing and business development. I would add that another significant aspect of a quality self-presentation is one's nonverbal behavior, including direct eye contact, a welcome handshake, and genuineness. - Diane Rifkin, Laguna Niguel

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