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25 Years Protecting Those Accused

People v. Smith (2003) 110 Cal.App.4th 1072, 1098, 1102: “In large measure, the right to jury trial, especially in criminal cases, exists to protect citizens accused of crime from the ‘corrupt or overzealous prosecutor’ and the ‘complaint, biased or eccentric judge.’…in Thomas Jefferson’s first inaugural address, he extolled the fundamental nature of the right to trial by jury. ‘Equal and exact justice to all men, of whatever state or persuasion…and trial by juries impartially selected. These principals form the bright constellation which has gone before us and guided our steps…should we wander from them in moments of error…let us hasten to retrace our steps and to regain the road.’…And, in the words of England’s legendary legal philosopher, William Blackstone: ‘trial by jury ever has been and I trust ever will be invoked upon as the glory of the English law. And if it has so great an advantage over others in regulating civil property, how much must that advantage be heightened when it is applied in criminal cases!  IT IS THE MOST TRNASCENDENT PRIVILEGE WHICH ANY SUBJECT CAN ENJOY OR WISH FOR THAT HE CANNOT BE AFFECTED EITHER IN HIS PROPERTY, HIS LIBERTY OF HIS PERSON, BUT BY UNANIMOUS CONSENT OF…HIS NEIGHBORS.

Excerpt from proceedings in the Alhambra Superior Court, Sentencing DUI case on probation for two strikes of robbery:


D.A.: We are asking for two years state prison. He was on felony probation on this case and he basically received the deal of a lifetime last time.


MARSHALL: I would like to put on the record, you know, that it seemed very much last time we were in court up at side bar with your Honor like a joint discussion between the defense the court and the People. And I think that on the heels of that joint discussion and sort of an agreement, I mean, understanding that, of course, the Court can do what the Court will. But it seems a bit disingenuous for the People at this late stage to come in and say, you know, we want two years state prison. I’m not suggesting there was bad faith. Just, on the record, with regard to a side bar discussion, you know, I showed the Court a letter that I had written to the probation officer, frankly, maybe 72 hours after the arrest occurred. And then, thereafter, I went into

the hallway. I talked to the probation officer. I then came up to the Court to side bar in the presence of the District Attorney and the Court and said, here’s what the probation officer would recommend. And, frankly, the probation officer is in the best position to indicate what may be reasonable.


COURT: You are to perform a total of 30 days of Caltrans. Do you understand and accept the modified terms and conditions of probation?


G.H.: Yes.


MARSHALL: Terrific. Thank you very much, Your Honor.

From an email:
“Thank you for everything you have done for me and continue to do for me. You are amazing! I truly

Believe, I never would’ve made it through everything without your awesomeness. You have always been

Super supportive and wonderful. I’ll never forget how much better I felt after meeting with you to talk about

My situation. I could breathe again and felt that maybe I really wasn’t about to lose everything. You are an amazing

Woman and a kick ass lawyer! (You know, if you wanted, I think you could be president of the USA…seriously.) Thank

You so much! K.J.L. xoxo.”

From transcript of proceedings, Criminal Courts Building, 

Motion To Terminate Probation Early after 8 months on a 36 month grant of Probation –

Ms. Marshall: “just because there is a three year grant, the law does allow the court to [modify probation].

And I believe what is before the court is an exceptional case, where this woman, standing to my right, has literally been separated from her children. Six of them. Two minor ones, being the most significant for family purposes. Her husband still – we’re hoping that ex word comes very soon – has literally used this conviction to slam her and slander her, in ways that even I can’t imagine, through the family law court system.”

The Court: “I read your papers. And I would – if I were a person in the spot of the defendant, I would be happy to have an advocate who would take her side so eloquently as you have, and to articulate all the problems and sensitivities and issues that have come up in her life…but I would say…that terminating, in less than a year, a three year grant, while it can happen, would Fall, I’d say, outside the bell curve in terms of what we see.”

Ms. Marshall: “Absolutely. Yes….I don’t know that...I’ve ever come to court on a motion to terminate early before a year and a half. But this is one of those cases where she is suffering. The kids are suffering. She has done amazingly well in recovery, rehabilitation, to the point where she got her addiction certification for nursing…I think that this is one of those really unusual cases where the Court can say you know what, the law does allow me to do this. I do have broad discretion. And this is one of those cases where I’m going to act… I think that Ms. K has gone above and beyond. She has done everything that was required of her in probation. She has done the Board Nursing, Program Diversion. Which, by the way, there’s another three years outstanding which I reference in my papers….She went out and got her additional Certification regarding addiction medicine. She does intensive outpatient. Daily 12 steps. Regular psychotherapy. This all from my papers, your Honor. Random screens for drugs and alcohol. Meeting with nurse facilitators and nursing diversion committee. And that is above and beyond probationary terms that suggest to me, and I hope suggest to the Court, that this lady deserves this termination at this time…I think that the law says that the Court can look at the ends of justice, and whatever that means in the particular case that’s before the court. And a huge part of S.K.’s life at the moment is focused on this Divorce proceeding. And I’m not going to stand here and tell the Court that if the family law case was not an issue, we would not be here, because that’s true. But that is one of the driving forces in Ms. K’s life. And I think that looking at that, plus the extraordinary work that she’s done in proving to the Prosecutor and to the Court her rehabilitation, her progress and her recovery, I ask that the Court take this woman off probation. Because as the law also says, she remains in constructive custody. And I think that an example of that constructive custody is with the family law case. And by the way, I don’t think it’s inappropriate at all for this Court to look at all facets of Ms. K’s life, including the family law case.”

The Court: “I’m willing to modify defendant’s probation, but not to terminate it sooner. I will modify her probation to non reporting, summary probation. And suggest to you,

No promises, that my thinking is that if she can reach the one year anniversary of her disposition without any adverse incidents or probation violations, that she would be better Positioned than she is today to seek complete termination.”

Ms. Marshall: “May I ask that the Court, based on the two wobbler offenses that she pled to, would the Court be willing to reduce the felonies to misdemeanors at this point? Which I believe would be consistent with the change from informal probation.”

The Court: “Well, it would not be inconsistent, you could say that.”

Ms. Marshall: “Correct. Yes.”

The Court: “In this instance, Ms. Marshall, optimistic further argument was worthwhile. The charges are reduced to misdemeanors. 11368 of the Health and Safety Code and 459 of the Penal Code, each is reduced to a misdemeanor. Probation is now summary, nonreporting probation. And I don’t disagree with you, Ms. Street (Prosecutor). BUT I THINK THIS WOMAN HAS BATTLED ENOUGH THINGS IN HER LIFE, THERE’S NO NEED TO STEP ON HER FINGERS AS SHE GOES UP THE LADDER.”

Ms. Marshall: “Thank you so much, your Honor.”

805.DR.DEF.35 -- 2020