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Case Examples
David Carico has conducted numerous civil and criminal appeals.
These are several recent examples of the appeals that he has handled.
For a comprehensive list of published
cases by David in the California Appellate Court, click here.
Criminal Appeals
THE CASE:
People of the State of California v. Lee (11/6/2007 unpublished)
DESCRIPTION: Mr. Lee and his ex-fiancee/roommate
were in an argument over money and infidelity. Mr. Lee pushed
this woman away from him. In doing so, his hand was on the woman’s
breast for several seconds. The woman subsequently had surgery
to repair damage to her breast implant. Mr. Lee was charged
with sexual battery and wilful infliction of corporal injury
on a cohabitant.
The defense position at trial was that the woman’s injuries
occurred during an auto accident and not by Mr. Lee’s
hand, and that he was trying to defend himself when he pushed
the woman away from him. A nurse testified at trial that the
woman’s injuries were consistent with the woman’s
testimony that her breast was grabbed and twisted rather than
an auto accident. Mr. Lee was convicted on both counts and required
to register as a sex offender and serve 210 days in jail. He
was also sued civilly for damages.
On appeal, attorney Carico argued that the trial court committed
reversible error in failing to instruct on the lesser included
offenses of simple assault and battery.
THE RESULT: The judgment was reversed. The
District Attorney offered a no contest plea to misdemeanor battery
so that the conviction would not affect the civil suit, no sex
offender registration, and to reduce or eliminate the jail time.. |
THE CASE:
People of the State of California v. Holzboog and In re Holzboog
on Habeas Corpus (9/23/03 unpublished)
DESCRIPTION: California appellate attorney
David Carico represented the appellant in this case who was
convicted of second degree murder arising out of a feud between
drug dealers. Several witnesses testified that they saw the
defendant shoot the victim in the stomach with a shotgun. The
defense presented by the trial attorney was self-defense, but
he failed to develop the defense and presented inconsistent
defenses:one of self-defense and one of actual innocence.
The Attorney General cited established case law that it is a
permissible tactic to present inconsistent defenses. California
appellate lawyer David Carico argued that the trial court abused
its discretion in failing to grant a continuance of the trial.
It was apparent from the record that defense counsel was not
ready for trial. California appeals attorney, David Carico raised
ineffective assistance of counsel in the appeal and a separate
writ of habeas corpus.
The Court of Appeal reversed the conviction finding that trial
counsel's lack of preparation prejudiced the defense. The vehicle
by which the court reversed the case was the trial court's failure
to grant a continuance. However, trial counsel answered that
he was ready to proceed on the date of trial, so it is likely
the appellate court was convinced that there was ineffective
representation.
THE RESULT: On remand, the prosecution offered
to reduce the charge to manslaughter and the defendant pled
to this offense. |
THE
CASE: People of the State of California v. Robinson
(Jan. 2005 unpublished).
DESCRIPTION:
The defendant and his brother were convicted of first degree
murder with special circumstances arising out of a robbery and
shooting of a store clerk at a 7-Eleven Store in Downey, California.
Appellate lawyer David Carico ’ s client was the defendant
and appellant. The client's girlfriend implicated him in the
murder, claiming that he confessed the crime to her. There was
also a videotape of the robbery that clearly showed the clothing
worn by the assailants. A couple of high school counselors identified
the client and his brother from the video, and one of them remembered
the jacket. The getaway driver, a friend of the client and his
brother, testified that he drove the client and his brother
to the scene of the crime, but that he did not observe the robbery
or have any knowledge of it or part in it.
The defense presented evidence of third-party culpability consisting
of the testimony of a 7-Eleven employee who saw the videotape
and testified that the people in the tape looked like individuals
who had come into the store earlier in the day and attempted
to steal a bottle of wine. The defense also introduced dog-tracking
evidence--a bloodhound taken to the scene about five hours after
the crime sniffed a hat left by one of the perpetrators and
followed a trail to an apartment complex across from the store.
The jury in the first trial could not reach a verdict.
The defendants were retried and this time the court excluded
the defense evidence finding it to be unreliable (the hat could
have been contaminated and the witnesses who identified third
parties as the culprit gave inconsistent evidence).
THE RESULT: The Court of appeal reversed the
conviction and remanded the case for a new trial. The Court
of Appeal held that the trial court erred in excluding the third
party culpability evidence, and that the error was prejudicial.
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Juvenile Appeals
THE CASE:
In the Matter of Gregory T., A Minor (July 2005 unpublished).
DESCRIPTION:
The juvenile was sentenced by the Superior Court to the California
Youth Authority for two commercial burglaries. The minor was
not criminally sophisticated and was a target for abuse by the
more criminally sophisticated youths at CYA. Attorney David
Carico used a provision of the Welfare & Institutions Code
§ 779 to petition the Superior Court to modify the commitment
order to end the minor’s CYA confinement.
Mr. Carico hired an expert on sentencing to present a detailed
social study to the court concerning the minor’s mental
health problems that led to his criminal behavior, and a nationally
recognized psychiatrist and authority on prison violence to
offer an opinion concerning the confinement and mental health
treatment of the minor in the California Youth Authority.
THE RESULT: The superior court judge was so
moved by the presentation that he sent the minor home to his
parents. |
Civil Appeals
THE
CASE: The Estate of Harold S. (Feb. 2006 unpublished).
DESCRIPTION:
This case was appealed twice and attorney Carico represented
the trustee and respondent from an order approving an accounting
and ordering distribution of assets on a petition for settlement
of first and final account and report of administration of trust
and for approval of acts of trustee. In the first appeal, the
objector and appellant argued that the court abused its discretion
in ordering the short cause contested evidentiary hearing on
the objections to the accounting to proceed on the same date
as the hearing on the written objections and in failing to afford
appellant additional time to depose the respondent.
Attorney Carico argued that per local Superior Court rules,
the probate court had the authority to hear the short cause
contested matter on the same day as the scheduled hearing and
that no continuance for discovery was necessary. The Court of
Appeal agreed, and the matter was remanded for a limited evidentiary
hearing on one contested issue. The Court of Appeal indicated
that the remand was without prejudice to the respondent’s
request for attorney’s fees and costs.
THE RESULT: The evidentiary hearing proceeded
without discovery, respondent prevailed, and was awarded attorneys
fees and costs for both the trial and appeal. The appellant
appealed again, but the appeal was dismissed. |
THE
CASE: Jim. M. v. Ford (Feb. 2003 unpublished).
DESCRIPTION:
In this case, the parties were engaged and purchased a piece
of real property together in joint tenancy with right of survivorship.
Both of the parties contributed to living expenses, but the
respondent made the down payment on the property and paid most
of the monthly mortgage. There was a court trial on the issue
of the division of the property when the parties ended their
relationship. The appellant claimed that the presumption of
50/50 ownership of joint tenancy property should apply, and
that the property should be sold and the proceeds divided. The
trial court found that the behavior of the parties negated the
statutory presumption and awarded the property to respondent
with minimal reimbursement to the appellant.
Attorney Carico represented the respondent on appeal and argued
that the trial court had the authority to order an equitable
division of the concurrent interests of the parties according
to their respective contributions to the property. Attorney
Carico also argued the trial court could order a partition by
appraisal without selling the real property so that the respondent
could continue to reside at the property with his young son.
THE RESULT: Respondent prevailed. The judgment
was affirmed and costs awarded to respondent. |
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