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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of the State of California v. Lee (11/6/2007 unpublished)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on Habeas Corpus (9/23/03 unpublished)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. |
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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