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self-study / Practice and Procedure

Can you name that motion?

Harbor Justice Center / Newport Beach Facility

Gregg L. Prickett

Judge, Orange County Superior Court

Harbor Panel

Numerous motions made by defendants in criminal cases are widely known and referred to by the appellate opinions which originally discussed the motions. Even though the subject matter underlying the motions has often been refined and constricted by subsequent opinions and statutes, the original names stuck. Take a look at the non-exhaustive list below, and then test yourself on how many of the motions you remember.

The objective of this article and accompanying self-study test is to review motions made in criminal cases. From A is for Apprendi to W is for Wheeler, readers will learn about the many motions made by defendants in such cases and the opinion names that accompany them.

Apprendi: Motion to require the jury to return a finding as to any enhancement (other than prior convictions) or element of a crime which can be used to increase a defendant's sentence. Apprendi v. New Jersey, 530 U.S. 466 (2000). See also Cunningham v. California, 549 U.S. 270 (2007) (California's determinate sentencing law violates a defendant's Sixth and 14th Amendment right to a jury trial to the extent it permits a trial court to impose an upper term based on facts found by the court rather than by a jury beyond a reasonable doubt).

Aranda: (aka Bruton) Motion to bar the prosecution from introducing a codefendant's statement in a joint trial on confrontation grounds or, in the alternative, to sever the defendant's trial from his codefendant's trial. People v. Aranda, 63 Cal. 2d 518 (1965); Bruton v. United States, 391 U.S. 123 (1968). See also People v. Arceo, 195 Cal. App. 4th 556 (2011) (analyzing issue within the framework of Crawford v. Washington, 541 U.S. 36 (2004)).

Arbuckle: Motion by a defendant to be sentenced by the same judge who accepted his guilty plea. People v. Arbuckle, 22 Cal. 3d 749 (1978).

Brady: Motion filed when prosecution fails to disclose to the defense exonerating, impeaching or mitigating evidence. Brady v. Maryland, 373 U.S. 83 (1963).

Castro: Motion for the judge to exercise Evidence Code Section 352 (weighing probative value versus prejudice) discretion in admitting priors of moral turpitude to impeach witness credibility. People v. Castro, 38 Cal. 3d 301 (1985).

Dillon: Motion to reduce the sentence as being cruel or unusual punishment as it is grossly disproportionate to the offense for which it is imposed. People v. Dillon, 34 Cal. 3d 441, 477-82 (1983). See also Ewing v. California, 538 U.S. 11 (2003) (regarding constitutionality of three-strikes sentence).

Evans: Motion for a pretrial lineup. Evans v. Superior Court, 11 Cal. 3d 617 (1974).

Faretta: Motion by a defendant to represent himself (act as his own lawyer). Faretta v. California, 422 U.S. 806 (1975).

Franks: Motion to suppress evidence seized under a search warrant based on the affidavit being insufficient when misstatements are removed. Franks v. Delaware, 438 U.S. 154 (1978).

Green-Thompson: Motion based on the felony-murder special circumstance being inapplicable to cases in which the defendant intended to commit murder and only incidentally committed one of the specified felonies while doing so. People v. Green, 27 Cal. 3d 1 (1980); People v. Thompson, 27 Cal. 3d 303 (1980).

Griffin: Motion based on the concept that "Under the Fifth Amendment of the federal Constitution, a prosecutor is prohibited from commenting directly or indirectly on an accused's invocation of the constitutional right to silence." People v. Tafoya, 42 Cal. 4th 147 (2007), citing Griffin v. California, 380 U.S. 609 (1965).

Harvey-Madden: Motion to require the prosecution to prove the source of information relied upon to show probable cause in a suppression motion. People v. Harvey, 156 Cal. App. 2d 516 (1958); People v. Madden, 2 Cal. 3d 1017 (1970).

Henry-Massiah: Motion to exclude statements made by a defendant to a jailhouse informant in violation of defendant's right to counsel. United States v. Henry, 447 U.S. 264 (1980); Massiah v. United States, 377 U.S. 201 (1964).

Ireland: Motion based on the concept that felony murder may not be based upon a felony which is an integral part of the homicide and which the evidence produced by the prosecution shows to be an offense included in fact within the offense charged. People v. Ireland, 70 Cal. 2d 522 (1969).

Kellett: Motion to dismiss or preclude punishment based on double jeopardy principles and Penal Code Section 654 (including both successive prosecutions and successive punishment). Kellett v. Superior Court, 63 Cal. 2d 822 (1966).

Kelly: Motion dealing with evidence being based on a new scientific technique is inadmissible until reliability of the scientific method and expertise of the interpreting witness are established. People v. Kelly, 17 Cal. 3d 24 (1976); Frye v. United States, 293 F. 1013 (DC Cir. 1923). Federal courts apply a different test, see Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).

Lent: Motion based on requirement that terms of probation must be reasonably related to the defendant's criminal conduct. People v. Lent, 15 Cal. 3d 481 (1975).

Marsden: Motion to relieve appointed counsel and to have the court appoint different counsel. People v. Marsden, 2 Cal. 3d 118 (1970).

McNabb-Mallory: Motion to suppress evidence based on a violation of defendant's right to a speedy arraignment. McNabb v. United States, 318 U.S. 332 (1943); Mallory v. United States, 354 U.S. 449 (1957).

Mejia: Motion to dismiss or suppress certain evidence based on the prosecution's deportation of known defense witnesses. People v. Mejia, 57 Cal. App. 3d 574 (1976).

Murgia: Motion to dismiss for selective prosecution based on an equal protection classification or activity. Murgia v. Municipal Court, 15 Cal. 3d 286 (1975).

Pitchess: Motion for disclosure from a police officer's personnel file of allegations of excessive force or other relevant complaints. Pitchess v. Superior Court, 11 Cal. 3d 531 (1974). Codified in Evidence Code Sections 1043-1047.

Serna: Motion to dismiss for a violation of defendant's California speedy trial rights where the period of pre-arraignment post-charging is beyond the statute of limitations. Serna v. Superior Court, 40 Cal. 3d 239 (1985).

Swann-Gilbert: Motion to dismiss a charge or charges where the prosecution has filed under a general charging section where a more specific section exists. People v. Swann, 213 Cal. App. 2d 447 (1963); People v. Gilbert, 1 Cal. 3d 475 (1969).

Theodor: Motion to compel the discovery of a confidential informant, usually in a search warrant context. Theodor v. Superior Court, 8 Cal. 3d 77 (1972).

Toledo: This antiquated rule provided that if the prosecution introduced a statement of the defendant, they were bound by the contents of that statement. People v. Toledo, 85 Cal. App. 2d 577 (1948). "The rule in its amended form is properly restricted to those cases where all the prosecution evidence points to excuse or mitigation. If there is substantial evidence incompatible with the theory of excuse or mitigation, the jury may consider all the evidence and determine whether the act amount to unlawful homicide." Matthews v. Superior Court, 201 Cal. App. 3d 385 (1988) (citations omitted).

Trombetta: (aka Hitch) Motion to dismiss for the prosecution's intentional bad faith destruction of exonerating evidence. California v. Trombetta, 467 U.S. 479 (1984). The now-superseded stricter California rule was in People v. Hitch, 12 Cal. 3d 641 (1974). See also Arizona v. Youngblood, 488 U.S. 51 (1988).

Wade-Gilbert: Motion to suppress a post-arraignment, live line-up identification based on defense counsel absence in violation of the Sixth Amendment right to counsel. United States v. Wade, 388 U.S. 218 (1967); Gilbert v. California, 388 U.S. 263 (1967).

Wheeler: Motion alleging exercise of peremptory challenges to exclude members of a cognizable group, which may be made by the defense or prosecution. People v. Wheeler, 22 Cal. 3d 258 (1978). See also Batson v. Kentucky, 476 U.S. 79 (1986).


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