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THE CASE: People of the State of California v. Lee (11/6/2007 unpublished)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on Habeas Corpus (9/23/03 unpublished)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

< Published Appellate Cases