ElectricLawyer

How to complain

This is my favorite story of the day, as reported by the Chicago News. It seems United Airlines broke musician Dave Carroll's guitar (no -- would United ever do something like that?). Anyway, Carroll tried to get the airline to pay for the repair ($1,200) for a year. Major Stonewall. So he did what any self-respecting young music dude would do -- he wrote a song and posted the video on You Tube. "United Breaks Guitars" got a gazillion people to watch it (including me -- it's great).

Well, United may be the worst airline in the world (although friends of mine would argue Air France gets the award), but it's not stupid. According to Chicago News reporter Zach Christman, the airline apologized and even asked if it could use the video as training material.

Well, after the initial warm glow of knowing little guys can win, I am left with the same feeling expressed by Christman:

"All this is well and good, and maybe Carroll's video will actually help United deal more fairly with its customers when they have a legitimate complaint. But if it doesn't, where does that leave the rest of us?  Posting YouTube videos every time a big company screws up?  Hmmm."

Hmmm indeed. Maybe the next time I have a problem with a big company, instead of hiring a lawyer, I'll hire Dave Carroll.

Case Summaries

Drugs - deferred entry of judgment

People v. Ochoa (3rd Dist., 6/15/09, C059868) ___ Cal.App.4th  ___

Yolo County Superior Court Judge Thomas Warriner prejudicially erred in denying defendant deferred entry of judgment under Penal Code section 1000 on the basis of a Health & Safety Code section 11357, subdivision (b) conviction for marijuana possession that occurred more than two years before the current offenses. The AG conceded that marijuana conviction records are supposed to be destroyed after two years, and therefore Judge Warriner should not have considered it.

Gangs - insufficient evidence

People v. Ramon (5th Dist., 7/7/09, F054603) ___ Cal.App.4th  ___

Kern County Superior Court Judge Sidney Chapin erred in allowing Penal Code section 186.22(b)(1) enhancement to go to the jury, as it was not supported by substantial evidence. Evidence of car theft and gun possession was not enough to support expert's opinion that crimes were committed for benefit of street gang. "The People's expert simply informed the jury of how he felt the case should be resolved ..... There were no facts from which the expert could discern whether [appellants] were acting on their own behalf ... or were acting on behalf of the [gang]." Fact that they were both gang members and were in the gang territory is not enough. Court found no situation where expert testimony about a possible reason for committing a crime was sufficient, by itself, to establish the crime was committed with the specific intent to promote, further or assist in criminal conduct by gang members.

Jury selection - racial motivation in striking jurors

Ali v. Hickman (9th Cir., 7/7/09, 07-16731) ___ F.3d  ___

Comparative juror analysis, in combination with other facts, "demonstrates that the prosecutor [Stephen Wagstaffe] purported race-neutral reasons for striking at least one of the jurors were pretexts for racial discrimination. We further hold that the California Court of Appeal's contrary conclusion was not only incorrect, but unreasonably so." Habeas granted.

Search & seizure - exigent circumstances

People v. Rogers (Ca. Sup. Ct., 7/6/09, S064337) ___ Cal.4th  ___

Officer who had received missing person report from victim's mother, inconsistent information from husband (defendant), who showed no concern over her disappearance, and saw vein in defendant's neck start to throb when officer mentioned searching storage area, could enter the area without a warrant under exigent circumstances doctrine.

Weapons - only one gun conviction

People v. Ramon (5th Dist., 7/7/09, F054603) ___ Cal.App.4th  ___

Violation of Penal Code section 12031(a)(1) is a crime, and subdivision (a)(2)(A) through (G) only establishes the penalty based on circumstances of crime and offender. Court could only enter judgment for one conviction.

What was she thinking? Barbara Walters at Jackson's funeral service

Barbara Walters aired video of Michael Jackson's kids, taken at the funeral service by her producer, who was sitting next to Walters. What's the problem? Well, tickets to the event specifically stated "no camera/video/recording." As if showing the video wasn't bad enough, Walters gushed on "20/20" about how touched she was that she had been invited to sit two rows behind the family. I'm sure she was very happy -- otherwise her assistant would not have gotten such a good shot.

Yes, I know the service was being officially filmed by the organizers. But it's one thing to have a controlled camera, and another to have people sneak in Flips to take pics of whatever they feel like. Even the fact that others may have smuggled in cameras doesn't make it right.

Check out Walters' incredible performance at:

http://www.tmz.com/videos?autoplay=true&mediaKey=2e2bce2b-0f1e-4eac-982c-453bb7cc8f29

Case Summaries

Civil commitment - findings require jury trial

People v. Sweeney (4th Dist., 6/24/09, E043410) ___ Cal.App.4th  ___

Riverside Superior Court Judge Carl E. Davis violates due process rights of Welfare & Institutions Code section 6500 commitee (mentally retarded and dangerous) and improperly instructed the jury, when he determined that the findings that the underlying charges involved violence was a question of law, and not a question for the jury. Decision follows teachings of People v. Figueroa (1986) 41 Cal.3d 714 and People v. Hedgecock (1990) 51 Cal.3d 395.

Death penalty - no reversible IAC

Bible v. Ryan (9th Cir., 7/1/09, 07-99017) ___ F.3d  ___

Regardless of deficiencies in mitigation case investigation by defense counsel, significant mitigation evidence was presented and the speculative evidence counsel might have introduced could not have outweighed the "powerful aggravating circumstances" surrounding child's rape and murder. Arizona court's determination that petitioner did not suffer prejudice was not unreasonable.

Drugs - medical marijuana

County of Butte v. Superior Court (Williams) (3rd Dist., 7/1/09, C057152) ___ Cal.App.4th  ___

Proposition 215 (Compassionate Use Act -- medical marijuana) and Medical Marijuana Program Act (MMPA) allow for civil action for Butte County deputy's act of ordering qualified medical marijuana grower to destroy his plants. Majority disagrees with Justice Morrison's argument that federal law prohibits marijuana possession and reigns supreme. The propriety of the deputy's conduct is measured by California, not federal, law.  See also City of Garden Grove v. Superior Court (2007) 157 Cal.App.4th 355 (motion for return of illegally seized marijuana granted).

False evidence - unaltered photograph

People v. Bamberg (1st Dist., 6/30/09, A120767) ___ Cal.App.4th  ___

Mr. Andrew Bamberg gets the "What was he thinking" award. In contesting a traffic citation for failing to stop at a sign, he introduced a photo of an intersection that did not have a stop sign. Unfortunately, the photo portrayed a different intersection. He was convicted of perjury, preparing false evidence and concealing or destroying evidence. He appealed the false evidence count, a violation of Penal Code section 134. The appellate court found that the evidence was "false," even if the unaltered photographs portrayed a real intersection, since they "depicted something other than what appellant claimed they showed."   How was Mr. Bamberg's little ploy discovered? The traffic commissioner had drive through the intersection in the photo five days a week for five years. A cop sitting in the courtroom went to the intersection and found the signs had been changed. The commissioner found Bamberg guilty but took no further action. Bamberg appealed, and prepared a settled statement that included new photographs. The commissioner caught him. Bad went to worse and the felony prosecution followed.

Habeas corpus - federal - reversal of habeas dismissal

Phelps v. Alameida (9th Cir., 6/25/09, 07-15167) ___ F.3d  ___

You can see the reversal coming when the opinion starts out by condemning the procedural hurdles of the modern habeas process and then states, "It is, however, very unusual for an individual who meticulously has overcome each of those procedural hurdles to sit in prison for more than a decade nonetheless, without ever being heard on the substance of his petition. That, however, is exactly what has happened to Kevin Phelps." It appears that the only problem with Phelps' petition is that he correctly foresaw legal decisions before they were decided.

Speaking for a unanimous panel (Bright and Tashima), Judge Reinhardt says: "Phelps' case represents the epitome of our obsession with form over substance."

Habeas corpus - state - Vienna Convention argument in successive petition

In re Martinez (Ca. Sup. Ct., 6/29/09, S141480) ___ Cal.4th  ___

In light of Medellin v. Texas (2008) 552 U.S. ___, 128 S.Ct. 1346, California Supreme Court holds that petitioner was precluded from renewing Vienna Convention claim because he had previously raised it in his first habeas petition and the claim had been denied on the merits. Petition is successive and he failed to demonstrate any change in circumstances. Petitioner had cited the International Court of Justice's decision in Avena and Other Mexican Nationals (Mexico v. U.S.) 2004 I.C.J. 12 (Judgment of Mar. 31), but did not argue it.

Hearsay - criminalist report violates Sixth Amendment

Melendez-Diaz v. Massachusetts (U.S. Sup. Ct., 6/25/09, 07-591) ___ U.S. ___

In the answer to "what did you think we were trying to say when we decided Crawford v. Washington," Court majority (Scalia, Stevens, Souter, Thomas, Ginsburg) rules that admitting certificates of state laboratory analysts reporting on test results violates Sixth Amendment confrontation clause.

Priors - Three Strikes - misdemeanor punished as felony not "serious"

People v. Ulloa (2nd Dist., 6/26/09, B201072) ___ Cal.App.4th  ___

Misdemeanor punished as felony under Penal Code section 186.22, subdivision (d) is not a "serious felony" under Penal Code section 1192.7, subdivision (c)(28).

Sexually violent predators - statutory scheme constitutional

People v. Johndrow (3rd Dist., 7/1/09, C055620) ___ Cal.App.4th  ___

Amendments to SVP Act, Welfare & Institutions Code section 6600 et seq. permitting indeterminate terms are constitutional. Court erred in not allowing defendant to testify against his counsel's wishes, but error harmless beyond reasonable doubt. C.f., People v. Allen (2008) 44 Cal.4th 843 (SVP defendant has constitutional right to testify against counsel's wishes).

Speedy trial - remoteness of Indio court

People v. Hajjaj (4th Dist., 6/29/09, D054754) ___ Cal.App.4th  ___

When on last day to be brought to trial, a court is available in a remote branch of the county, which prevents parties and counsel from appearing that day, physical remoteness constitutes good cause to delay trial for one day.

Three Strikes - juvenile priors are valid

People v. Nguyen (Ca. Sup. Ct., 7/2/09, S154847) ___ Cal.4th  ___

U.S. Constitution allows use of prior juvenile adjudication to increase maximum sentence for adult felony based upon prior juvenile adjudication even though juveniles are denied jury trials. Kennard dissents.

What were they thinking? The opponents of Fisher's San Francisco Museum

C.W. Nevius reports in the San Francisco Chronicle that Gary Widman, President of the Presidio Historical Association, and his friends and supporters, have succeeded in blocking Gap founder Don Fisher's gift of a $100 million dollar art museum, which was to replace the abandoned buildings, old bowling alley, and empty roads that now litter parts of the Presidio, a former Army base. Mr. Widman is clearly very proud of himself, quoted in the Chron saying that the "The city ... and the public will greatly benefit if the Fisher family selects a more visitor-friendly location that does not destroy this unique National Historic Landmark."

Spare me. First, after royally dissing Mr. Fisher, does anyone really think he's going to give his collection to SF? And where's he going to put it? What is a more "visitor-friendly" site? Pier 39?

I'm getting very tired of the anti-business, anti-everything-interesting and fun attitude a lot of San Franciscans are developing. This was once a vibrant, indeed a boisterous, town. Now it's becoming about as interesting as Colma. Well, Mr. Widman, you can have the miserable little corner of the sprawling base where Mr. Fisher was going to put his museum. You and your friends can party there to your heart's content.

GTD: RTM for iPhone with Push

Ordinarily I dislike initials and acronyms, but .... GTD stands for Getting Things Done, the title of David Allen's fantastic book and organizational method. RTM stands for Remember the Milk, a GTD task app that I did not immediately grok when I first tried it. Then I heard that RTM had a new iPhone app with push notification, so being an iPhone app junkie, I had to check it out.

The iPhone app is slick and well-designed, and brings all of RTM's power to my beloved little buddy. In addition, RTM has a very nice Google widget, which puts the application right in the middle of my Google home page. I think I have finally found the perfect GTD task list-maker.

 Here's a screenshot of RTM on the iPhone.

Tommy Norman - In Memoriam

Learned today that former San Francisco Assistant District Attorney Thomas J. Norman (Tommy to one and all) has died. Tommy had been in the DA's office forever, but I didn't really get to know him until I became one of the defense lawyers in the last state death penalty case to be tried in San Francisco, in 1996. It was a very long trial, eight months, in fact. Tommy and I sat at the ends of our respective tables, practically close enough to play footsies, which would not have been very appropriate, but fun nonetheless.

Tommy was an absolute gentleman, in and out of the courtroom. During the trial he interviewed a witness. While other DA's might have given us the witness' name and taken no notes of the interview, Tommy gave us his own interview notes -- handwritten.

God doesn't make prosecutors like Tommy any more. Maybe He only made one, and then threw away the mold. I'll probably have more to say in the next few days. Right now I'm getting a little misty.

Case Summaries

Civil rights - police withholding exculpatory evidence

Tennison v. City and County of San Francisco (9th Cir., 12/8/08, 06-15426) ___ F.3d  ___

Former San Francisco Police Inspectors Napoleon Hendrix and Earl Sanders (later Chief of Police) were not entitled to qualified or absolute immunity after withholding exculpatory evidence that resulted in plaintiffs serving 13 years in prison for a crime they did not commit. Brady v. Maryland imposes a duty upon both prosecutors and police officers to disclose exculpatory evidence. Just placing it in the file is not enough. "Evidence that a person, known to the officers, has told the officers that they have arrested the wrong people, has identified the people involved, including the shooter, and described the cars and the chase in a manner consistent with the evidence, should not have been buried in a file, but should have been made known to the prosecutor." Additionally, the inspectors were not acting in an "advocacy role" when they withheld a third party's confession. 

Drugs - insufficient evidence of conspiracy

United States v. Tran (9th Cir., 6/24/09, 07-30270) ___ F.3d  ___

Although co-defendant's plea agreement was admissible as prior inconsistent statement to impeach co-defendant's trial testimony that was favorable to defendant, "the evidence was insufficient to show that [defendant] had even a slight connection to the conspiracy." The government's proof was "only amounts to" the defendant's presence as a passenger in a car containing large amounts of marijuana in the trunk, and defendant's knowledge of marijuana distribution tactics, admitted only to show knowledge.

Homicide - natural consequence of target assault

People v. Medina (Ca. Sup. Ct., 6/22/09, S155823) ___ Cal.4th  ___

Shooting death of victim was reasonably foreseeable consequence of assault by gang members on another gang, and murder convictions of non-shooters affirmed. 

Joinder - of counts at defense request

People v. Butler (Ca. Sup. Ct., 6/18/09, S055501) ___ Cal.4th  ___

Trial court did not abuse discretion in refusing to join, at defense request, unrelated murder counts. Argument for joinder request was that prosecutor was keeping counts separate in order to have two opportunities to obtain death penalty based on same set of fact. The joinder would have required a severance of defendants on the second murder count and the uncertainty, complication and delay arising from the situation justified the denial of the motion. See Penal Code section 954. 

Juveniles - commitment to DJF

In re M.B. (5th Dist., 6/18/09, F055289) ___ Cal.App.4th  ___

Welfare & Institutions Code section 733 allows juvenile court to commit ward to Division of Juvenile Facilities (formerly CYA) for probation violation, where offense for which probation granted was a DJF-eligible offense and no petition alleging a more recent non-DJF-eligible offense had been sustained.

Parole - hold past release date

In re Hovanski (3rd Dist., 6/19/09, C059192) ___ Cal.App.4th  ___

Welfare & Institutions Code section 6601.3, which permits Board of Parole Hearings to order inmate referred to Department of Mental Health for evaluation as potential sexually violent predator allows a hold, placed on the last day before parole discharge date, which results in inmate being incarcerated past his parole discharge date. 

Rape - foreign object prohibition on probation

People v. Valdez (4th Dist., 6/19/09, E045289) ___ Cal.App.4th  ___

Prohibition in Penal Code section 1203.065 to grant of probation to those convicted of rape with foreign object does not violate equal protection even though persons convicted of spousal rape may be granted probation. Court finds that because spousal rape may result in the birth of a legitimate child, and that is a legitimate reason for granting the father probation. Also, there may be a likelihood of greater injury in rape with foreign object. Distinguishes People v. Hofsheier (2006) 37 Cal.4th 1185.

Search & seizure - forcible DNA taking

Friedman v. Boucher (9th Cir., 6/23/09, 05-15675) ___ F.3d  ___

Las Vegas Metropolitan Police Detective Dolphus Boucher, acting with the approval of Clark County Deputy District Attorney Elissa Luzaich, violated plaintiff's Fourth Amendment rights by forcibly taking a DNA sample, without warrant or court order, just in order to put it into a cold case databank. "In short, no reasonable detective or prosecutor could have thought that they could forcibly take a DNA sample ... without violating ... Fourth Amendment rights."

Statute of limitations - home equity sales fraud

People v. Shetty (2nd Dist., 6/18/09, B205061) ___ Cal.App.4th  ___

Conviction by plea to misdemeanor count of home equity sales fraud (Civil Code sec. 1695.8) not barred by statute of limitations. Offense is "wobbler" (alternative felony/misdemeanor), so applicable statute of limitations is the felony term of four years, because it is a crime involving fraud, under Penal Code section 801.5 and 803, subdivision (c), even though the specific section is not listed in section 803, subdivision (c)(1)-(11). Enumerated offenses are illustrative only.

Voir dire - limitations on asking about penalty phase

People v. Butler (Ca. Sup. Ct., 6/18/09, S055501) ___ Cal.4th  ___

Trial court did not abuse discretion in refusing to allow defense counsel to ask about a killing that would be introduced as aggravating evidence in penalty phase. A defendant cannot insist upon questions that are so specific that they expose jurors to the facts of the case.

Note: counsel might have been able to ask the question as a hypothetical.

Universal health care - now!

Just read a San Francisco Chronicle story ("Poll finds broad support for government-run insurance plan," 6/21/09), which reports that "Americans overwhelmingly support substantial changes to the health care system and are strongly behind ...a government-run insurance plan to compete" with private plans. At the same time, Americans reported being satisfied with their own plans, which Republicans are exploiting as a paradox.

It is not a paradox. I am one of those people, so maybe I can explain this "paradox" to the Republicans. I have good health insurance and I am happy. Two of my four children have no health insurance, and can't get it. So, I am happy with my coverage, but I still want a government-run plan to offer affordable coverage for my children.

There. That's all there is to it. If Republican Senator Mitch McConnell can't understand this, he can email me and I'll explain it, using short words.

Case Summaries

Appeals - challenge to certificate requirement

People v. Hodges (3rd Dist., 6/9/09, C059391) ___ Cal.App.4th  ___

Penal Code section 1237.5 and Cal. Rule of Court 8.304(b) requirement of certificate of probable cause to appeal following guilty plea does not violate federal due process and equal protection rights, even if the defendant suffers from mental deficiencies, because defendants only need to ask for guidance from trial counsel. Preparing request for certificate of probable cause is part of trial counsel's duty to file notice of appeal. (People v. Ribero (1971) 4 Cal.3d 55, 66.)

Fraud - sufficiency of evidence

People v. Aldana et al. (4th Dist., , G040320) ___ Cal.App.4th  ___

Evidence insufficient to support Penal Code section 424, subdivision (a)(3) convictions (prohibiting those charged with control over public moneys from keeping false accounts). Timesheets signed by supervisor did not accurately reflect employee's hours, though prosecutor admitted employee actually worked more hours than he was paid. Employee was not "officer of state ... [or] person charged with" keeping public moneys. Evidence of supervisor's guilty knowledge insufficient under "well-settled Supreme Court precedent" (People v. Salas (2006) 37 Cal.4th 196.

Ed. Note: Something's strange here. The supervisor worked 16 hours a day, seven days a week and turned a hospital around financially. The employee, a doctor, was paid only $81.88 an hour and was available to the supervisor 24 house a day, seven days a week. So why did the Riverside County DA prosecute them? Even the AG conceded the evidence of guilty knowledge was insufficient.

Racketeering - structure of the association

Boyle v. United States (U.S. Sup. Ct., 6/8/09, 07-1309) ___ U.S. ___

Instructions that told jurors they had to find existence of enterprise that is separate from pattern of racketeering activity was correct. Existence may be proved by what enterprise does, rather than abstract analysis of structure. See United States v. Turkette (1981) 452 U.S. 576.

Robbery - attempted robbery evidence insufficient

People v. Ugalino (3rd Dist., 6/9/09, C055469) ___ Cal.App.4th  ___

Defendant could not be convicted of attempted robbery of person who did not have actual or constructive possession of property taken. Compare, People v. Gordon (1982) 136 Cal.App.3d 519 (parents had ownership and residence of house where adult son's drugs were kept, so could be victims of robbery).

Sentencing - 78 to life not cruel or unusual

People v. Haller (3rd Dist., 6/9/09, C056282) ___ Cal.App.4th  ___

Sentence of 78 years to life under Three Strikes, following multiple convictions of criminal threats, stalking, and assault upheld against challenge of cruel or unusual punishment. See People v. Superior Court (Romero) (1996) 13 Cal.4th 497.

Sexually violent predators - mandate to conduct psych exam

Moore v. Superior Court (2nd Dist., 6/4/09, B198550) ___ Cal.App.4th  ___

As matter of constitutional due process, a defendant cannot be subjected to trial as alleged sexually violent predator while mentally incompetent. Los Angeles Superior Court Judge Marcelita Haynes is mandated to order psych exam to determine if defendant is incompetent.