ElectricLawyer

Case summaries - Nov 20, 2009

Confessions - implied waiver not abrogated by Seibert
People v. Rios (2nd Dist., 11/19/09, B208573) ___ Cal.App.4th  ___
    Rule of implied waiver of constitutional rights articulated in North Carolina v. Butler (1979) 441 U.S. 369, 371-379 was not abrogated by Missouri v. Seibert (2004) 542 U.S. 600, 616-617 (plur. opn. of Souter, J.). Controlling constitutional rule in Seibert is that set forth in Associate Justice Anthony M. Kennedy's concurring opinion (trial court must suppress postwarning confessions obtained during deliberate two-step interrogation where midstream Miranda warning-in light of the objective facts and circumstances-did not effectively apprise the suspect of his rights), which does not abrogate implied waiver rule of Butler. When the Supreme Court issues opinion which does not assent of five justices, controlling holding is that of those who concurred on narrowest grounds. (Panetti v. Quarterman (2007) 551 U.S. 930, 949.)

Drugs - Prop 36 numerical limits
People v. Archer (4th Dist., 11/17/09, D052978) ___ Cal.App.4th  ___
    Parties agreed that trial court erred in including numerical limits in Health & Safety Code section 11362.77 in instructing jury regarding amount of medical marijuana defendant could posses. Section unlawfully amended Compassionate Use Act (sec. 11362.5) passed by voters as Proposition 215. Court does not reach issue, finding that if it was error, it was harmless as to the cultivation charge in light of defendant's admission that he was growing marijuana for others for whom he was not primary caregiver. However, as to the possession charge, the instruction limiting the amount that defendant could grow was prejudicial.

Restitution - setting starting date for losses
People v. Phu (3rd Dist., 11/17/09, C060511) ___ Cal.App.4th  ___
    Court did not abuse discretion in setting starting date for losses to utility district from diversion of electrical power used for defendant's marijuana operation. Time period used by utility was from service was started by defendant. Court used rational method to determine loss. (People v. Mearns (2002) 97 Cal.App.4th 493, 499.)

Sexually violent predators - use of invalid "underground" regulation
In re Ronje (4th Dist., 11/19/09, G041373) ___ Cal.App.4th  ___
    Assessment protocol used to evaluate petitioner was invalid as "underground regulation" as defined by Cal. Code of Regulations, Title 1, section 250. Under People v. Pompa-Ortiz (1980) 27 Cal.3d 519, 529, petitioner not required to show prejudice because challenge is brought pretrial. Habeas granted. Remedy is to order new evaluations using valid assessment protocol and to conduct new probable cause hearing.

Case summaries - Nov 17, 2009

Appeals - late filing
People v. Lyons (2nd Dist., 11/5/09, B212253) ___ Cal.App.4th  ___
    Notice of appeal not timely filed. (See People v. Mendez (1999) 19 Cal.4th 1094-1095.) It was not subject to the rule of "constructive filing." (People v. Panizzon (1996) 13 Cal.4th 68, 75-76.) Prison delivery rule (People v. Slobodion (1947) 30 Cal.2d 362, 366-367) expanding constructive filing to incarcerated defendants who made arrangements with counsel to file notice of appeal (In re Benoit (1973) 10 Cal.3d 72, 86) does not apply because there was no showing defendant made any arrangement with counsel to file the appeal, and did not present evidence (which would have to be done on habeas) to obtain "Benoit" relief.

Child endangerment - relationship to child
People v. Pakes (6th Dist., 10/16/09, H032734) ___ Cal.App.4th  ___
    Defendant who was friend of family and spent a lot of time with them could be considered to have care or custody when he took child to job site with him, and endangered her while driving home and getting into high speed chase. Distinguishes People v. Heitzman (1994) 9 Cal.4th 189 [daughter who visited elderly father and knew of neglect by other family members could not convicted of elder abuse].)

Drugs - legislative amendments to Prop. 36 invalid
Gardner v. Schwarzenegger (1st Dist., 11/5/09, A122920) ___ Cal.App.4th  ___
    Certain provisions of Senate Bill 1137 cannot reasonably be construed to further purposes of Prop. 36, and the bill's provision for a popular vote, if any part of 1137 is invalidated, is itself invalid. The challenged provisions permit incarceration of defendants who violate probation in circumstances where incarceration is prohibited by Proposition 36, and narrow eligibility for Proposition 36 diversion. The vote provision is in effect a referendum (an initiative allows voters to propose new legislation; a referendum permits voters to reject legislation already adopted; Cal. Const., art. II, sec. 9, subd. (a)). A referendum must be placed on ballot by voters, not Legislature.

Habeas corpus - federal - applying 2003 standards to 1985 defense
Bobby v. Van Hook (U.S. Sup. Ct., 11/9/09, 09-144) ___ U.S. ___
    Applying ABA guidelines published in 2003 to determine whether attorneys were ineffective in 1985 trial was error. Restatements of professional standards, we have recognized, can be useful as "guides" to what reasonableness entails, but only to the extent they describe the professional norms prevailing when the representation took place. (Strickland v. Washington (1984) 466 U.S. 668, 688.) In addition, Sixth Circuit applied guidelines as commands. In any event, petitioner failed to show prejudice, as additional evidence would not have made any difference.

Habeas corpus - federal  - no prejudice from ineffective assistance of counsel
Wong v. Belmontes (U.S. Sup. Ct., 11/16/09, 08-1263) ___ U.S. ___
    Petitioner failed to show that even if defense counsel rendered ineffective assistance (a question the Court did not have to reach, but the suggestion was that he had not), he was prejudiced. Some of the additional evidence he might have presented was cumulative and other evidence might have opened door to introduction of past murder. Counsel's "mitigation strategy failed, but the notion that the result could have been different if only Schick had put on more than the nine witnesses he did, or called expert witnesses to bolster his case, is fanciful."

Jury instructions - CALCRIM 3550
People v. Santiago (5th Dist., 11/9/09, F056686) ___ Cal.App.4th  ___
    CALCRIM 3550 does not improperly direct minority jurors to give way to majority or improperly tell jury that all criminal cases must be decided at some point. Distinguishes problems found in People v. Gainer (1977) 29 Cal.3d 835, which disapproved of use of Allen-type instructions (Allen v. United States (1896) 164 U.S. 492) in California. It is a predeliberation instruction, not like an Allen charge.  The features of an impermissible instruction are: "First, the instruction generally contains a discriminatory admonition to minority jurors to rethink their position in light of the majority's views. Second, there is often an inaccurate assertion that the case must at sometime be decided, ignoring the prosecution's option to dismiss after a mistrial. A third common feature is a reference to the expense and inconvenience of a retrial. (Gainer, supra, 19 Cal.3d at pp. 845, 852.)"

Juveniles - ordinance forbidding public intoxication
In re Jennifer S. (1st Dist., 11/10/09, A122900) ___ Cal.App.4th  ___
    Del Norte County Code section 9.42.020, which forbids persons under 21 to be in public place with blood alcohol over .01%, is not preempted by state law. Follows rules of preemption set out in O'Connell v. City of Stockton (2007) 41 Cal.4th 1061.

Search & seizure - inevitable discovery during impound
United States v. Ruckes (9th Cir., 11/9/09, 08-30088) ___ F.3d  ___
    Even though search could not be justified under New York v. Belton (1981) 453 U.S. 454 because defendant had been removed from car prior to search (see Arizona v. Gant (2009) 129 S.Ct. 1710), drugs and firearm would have been found during routine inventory search of impounded car and therefore they were admissible under inevitable discovery theory.

Sentencing - Penal Code section 654
People v. Pakes (6th Dist., 10/16/09, H032734) ___ Cal.App.4th  ___
    Insufficient evidence to support trial court's conclusion that defendant entertained separate criminal objectives when he fled police, endangering his child passenger, in order to avoid being arrested and sent to prison. There was no evidence of a second objective. Therefore fleeing conviction had to be stayed.

Weapons - gun possession in furtherance of drug trafficking
United States v. Mahan (9th Cir., 11/6/09, 08-30475) ___ F.3d  ___
    Defendant who receives guns in exchange for drugs possesses those guns "in furtherance" of drug trafficking offense within meaning of 18 U.S.C. section 924(c). The guns and the drugs do not have to be in close physical proximity to each other.

Case summaries - Nov 7, 2009

Misconduct - prosecutorial - use of misleading PowerPoint presentation
People v. Katzenberger (3rd Dist., 11/2/09, C058883) ___ Cal.App.4th  ___
    DA's use of PowerPoint presentation where reasonable doubt illustrated by puzzle pieces depicting Statue of Liberty, in which first six pieces came onto screen sequentially, leaving two additional pieces missing and prosecutor argued it was possible to know what was depicted "beyond a reasonable doubt" even without missing pieces and prosecutor then added two missing pieces to show the picture was in fact the Statue of Liberty was "improper" but not prejudicial. "The prosecutor's use of an easily recognizable iconic image along with the suggestion of a quantitative measure of reasonable doubt combined to convey an impression of a lesser standard of proof than the constitutionally required standard of proof beyond a reasonable doubt. The prosecutor committed misconduct."

Parole - effect of indefinite post-release plans
In re Cerny (1st Dist., 11/4/09, A122964) ___ Cal.App.4th  ___
    In light of defendant's extensive history of drug use before being sent to prison, Board's concern about prisoner's uncertain parole plans justified. Applying standard of review of In re Lawrence (2008) 44 Cal.4th 1181 and In re Shaputis (2008) 44 Cal.4th 1241 (some evidence), petition had to be denied.

Search & seizure - action by private mail facility employee
People v. Reyes (4th Dist., 10/30/09, G038778) ___ Cal.App.4th  ___
    Defendant did not have reasonable expectation of privacy in outside of envelopes addressed to him when private mail facility employee showed them to police. See United States v. Osunegbu (1987) 822 F.2d 472.

Sentencing - imposing two enhancements
People v. Gonzalez (2nd Dist., 11/4/09, B208413) ___ Cal.App.4th  ___
    Imposing both three-year GBI enhancement (PC 12022.7(a)) and 10-year gang enhancement (PC 186.22(b)(1)(C)) for infliction of GBI on same victim in single offense violates Penal Code section 1170.1, subdivision (g).

sTrial - stationing courtroom deputy next to defendant
People v. Stevens (Ca. Sup. Ct., 11/5/09, S158852) ___ Cal.4th  ___
    Stationing courtroom deputy next to testifying defendant not inherently prejudicial practice that must be justified by showing of manifest need. It is not akin to a "human shackle." Trial court has broad power to maintain courtroom security and orderly proceedings. (People v. Hayes (1999) 21 Cal.4th 1211, 1269.) However, visible physical restraints like handcuffs or leg irons may erode presumption of innocence, as well as prison clothing. (Deck v. Missouri (2005) 544 U.S. 622, 630.) They must be justified by particular need.

More Bento stuff - creating Life Central

I started using Bento (now on version 3) to organize my case work, but I've now moved beyond that, and use it to organize every part of my life. I call it Life Central. The main library (that's what Bento databases are called) is my Journal. It has related fields from all the other libraries. Here's a screenshot to give you an idea:

Here's the To Do library shown in the Journal library above:

Just about every library links to all the other libraries. I start out the day with the Journal and move to the other libraries as needed.

Case summaries - Oct 30, 2009

Accomplices - instructions on corroboration
People v. Tuggles (3rd Dist., 10/29/09, C054250) ___ Cal.App.4th  ___
    CALCRIM 318 and 335 did not erroneously instruct jury that accomplice's testimony at trial could be corroborated by same accomplice's out-of-court statements. "No reasonable jury would have understood CALCRIM Nos. 318 and 335 to allow Shands to corroborate his own testimony." Even if they were possibly confusing, court also gave CALCRIM 301 which informed jury that Shands' accomplice status rendered testimony inadmissible without additional evidence. Counsel's arguments were consistent with that interpretation.

DUI - forensic report admitted under EC 1280
Lee v. Valverde (4th Dist., 10/29/09, E046731) ___ Cal.App.4th  ___
    Printout of blood test results conducted and reported at or near time of event, but printed or "published" on June 19 was admissible under EC 1280 official records exception. The "report" of June 19 reflected merely a transfer of information from one form of storage to another.

Factual innocence - finding reversed
People v. Medlin (2nd Dist., 10/29/09, B209614) ___ Cal.App.4th  ___
    Findings of factual innocence of dependent care abused by two nurses reversed because notwithstanding acquittals at trial, there was reasonable cause to believe they committed the offense, which is the standard a finding of factual innocence must meet. (PC 851.8(b) and (c).) Acquittal on criminal charges does not prove innocence, but merely the existence of a reasonable doubt as to guilt. (United States v. One Assortment of 89 Firearms (1984) 465 U.S. 354, 361.) A factual innocence finding "shall not be made unless the court finds that no reasonable cause exists to believe that the arrestee committed the offense for which the arrest was made." (Sec. 851.8(b).) The record must exonerate, not merely raise a substantial question as to guilt. (People v. Adair (2003) 29 Cal.4th 895, 909.)

Flight - failure to instruct
People v. Tuggles (3rd Dist., 10/29/09, C054250) ___ Cal.App.4th  ___
    PC 1127c does not require flight instruction upon introduction of evidence that might be construed as flight. Jury must be instructed on flight only if prosecution relies on such evidence to prove guilt. Here, prosecution did not argue that defendants demonstrated consciousness of guilt.

Forfeiture - objection at sidebar
People v. Tuggles (3rd Dist., 10/29/09, C054250) ___ Cal.App.4th  ___
    Counsel may object at unreported sidebar, and when court later memorializes the timeliness of the object "for the record" issue is preserved for review. (People v. Pinholster (1992) 1 Cal.4th 865, 937.)

Hearsay - defendant wanted to shoot up block
People v. Tuggles (3rd Dist., 10/29/09, C054250) ___ Cal.App.4th  ___
    Statement that defendant "wanted to shoot up the block" properly introduced to show reputation after defense counsel asked questions to show that defendant had a reputation for nonaggression. While a defendant may introduce evidence of character in form of opinion or reputation (EC 1102(a)), prosecutor may present like evidence to rebut defendant's evidence. (EC 1102 (b); People v. Hempstead (1983) 148 ca3d 949, 953.) Opinion based on hearsay is allowed. (EC 1324.) Here, prosecutor's "have you heard" question after defendant elicited evidence of reputation was proper.

New trial - based on jury misconduct
People v. Tuggles (3rd Dist., 10/29/09, C054250) ___ Cal.App.4th  ___
    Trial court did not abuse discretion in denying new trial based on juror misconduct. Under standards of People v. Wilson (2008) 44 Cal.4th 758, 822, failure to disclose was not sufficient to show bias. The questions she was asked concerned her ability to keep an open mind when considering evidence of drug use, not about personal use. The man accused of rape was not a close friend, which is what was asked. She did reveal a hit-and-run in which a friend died. Conversations about drug use did not introduce extraneous evidence into jury room under standard of In re Lucas (2004) 33 Cal.4th 682. Trial court properly refused to disclose juror information, but erred (harmlessly) in holding it had no authority to order jurors to appear at post-trial hearing. Limitations in Code of Civil Procedure sections 206 and 237 do not violate federal constitution.

Search & seizure - Chimel search after defendant removed
People v. Leal (6th Dist., 10/29/09, H031174) ___ Cal.App.4th  ___
    Search was beyond scope of arm's reach rule of Chimel v. California (1969) 395 U.S. 752 and Arizona v. Gant (2009) ___ U.S. ___, 129 S.Ct. 1710 (which reaffirmed Chimel). Police searched area in house where defendant had been before he came out and was handcuffed and taken away on misd warrants. Police not entitled to protection of Herring v. United States (2009) 129 S.Ct. 695 because even before Gant, law was not "muddled."

Witnesses - restricting cross-examination
People v. Tuggles (3rd Dist., 10/29/09, C054250) ___ Cal.App.4th  ___
    Court did not abuse discretion by not allowing defense to cross-examine witness about voluntary 72-hour psychiatric hold. Probative value outweighed by time consumption. Defense could ask whether witness snitched to stay out of prison, but not ask about prison terms (felony convictions had already been admitted). "Trial court did not act in a manner that was arbitrary, capricious, or exceeded the bounds of reason." (See EC 352.) Credibility had already been vigorously attacked on bases of drug use, motive to lie, and criminal convictions.

Reasonable Doubts - Oct 29, 2009

Criminal threats - erroneous instructions
People v. Jackson (6th Dist., 10/22/09, H032539) ___ Cal.App.4th  ___
    Jury should have been instructed that to find defendant guilty of attempted criminal threat, it must find that he specifically intended to make threat that could "reasonably cause the person to be in sustained fear for his or her own safety or for his or her family's safety." (People v. Toledo (2001) 26 Cal.4th 221, 231.)

Multiple punishment - lewd acts against child
People v. Alvarez (4th Dist., 10/28/09, G040739) ___ Cal.App.4th  ___
    Even when defendant has one objective - sexual gratification - Penal Code section 654 does not apply unless crimes were either incidental to or means by which another crime was accomplished. Here, separate violations could have been for own arousal and not as means of committing additional sexual contact.

Search & seizure - exigent circumstances
People v. Hochstraser (6th Dist., 10/27/09, H032765) ___ Cal.App.4th  ___
    Police could enter apartment to conduct welfare check after receiving report of possible domestic violence and missing child from victim's daughter. They found defendant at home, who acted strange and "spacey" and confirmed he'd had a fight the day before, and he did not know where vic was. Cops found the vic's ID and car keys. Police then searched defendant's mother's car, which defendant said he had borrowed from her. Inside a plastic bag inside a plastic container they found the vic's dismembered body. Held, entry into apartment justified by exigent circumstances, following People v. Rogers (2009) 46 Cal.4th 1136. Defendant did not have standing to complain of search of vic's fanny pack (where keys and ID found), and that search gave them probable cause to search car under automobile exception to warrant requirement. (California v. Acevedo (1991) 500 U.S. 565.)

Threatening texts - insufficient evidence
In re C.C. (3rd Dist., 10/27/09, C061230) ___ Cal.App.4th  ___
    Butte County Superior Court Judge Tamara Mosbarger erred in finding minor guilty of sending threatening or obscene texts (PC 653m) because the texts were neither threatening nor obscene, as he did not threaten physical harm, as required by statute, and vulgar language used did not qualify as obscene. The only real threat he made was to kill himself, not his girlfriend.

Case summaries - Oct 21, 2009

Factual innocence - standard and burden of proof
People v. Bleich (4th Dist., 10/9/09, D053808) ___ Cal.App.4th  ___
    Denial of judicial finding of factual innocence under Penal Code section 851.8 upheld, where even though there was insufficient evidence to bind defendant over for trial, defendant failed to carry burden of showing that she was innocent, in other words, that there was not even reasonable cause to arrest her in the first place. (People v. Adair (2003) 29 Cal.4th 895, 905.) The record must exonerate, not merely raise a substantial question as to guilt.

Forfeiture - medical marijuana
United States v. $186,416.00 (9th Cir., 10/20/09, 07-56549) ___ F.3d  ___
    Evidence relied upon by district court was tainted by illegal search of medical marijuana cooperative by LAPD and had to be suppressed. Remaining evidence  insufficient to connect defendant to violation of federal law. Seized funds have to be returned.

Gangs - sufficiency of evidence
People v. Vasquez (2nd Dist., 10/13/09, B213000) ___ Cal.App.4th  ___
    Defendant conceded that he killed victim "for the benefit of, at the direction of, or in association with" a criminal street gang. That was sufficient to support the finding. There is no need to find that the murder was intended to promote criminal activities, other than the murder itself. Reasonable jury could infer that murder intended to increase "respect" (fear of) for the gang. Court disagrees with Ninth Circuit's reading of statute in Briceno v. Scribner (9th Cir. 2009) 555 F.3d 1069 and Garcia v. Carey (9th Cir. 2005) 395 F.3d 1099.

Habeas corpus - federal - disposing of other claims
Corcoran v. Levenhagen (U.S. Sup. Ct., 10/20/09, 08-10495) ___ U.S. ___
    Circuit erred in disposing of petitioner's other sentencing claims without explanation of any sort. It should either have remanded to the district court or itself explained why consideration unnecessary. (Per curiam.)

Hearsay - confrontation
People v. Banos (2nd Dist., 10/19/09, B194272) ___ Cal.App.4th  ___
    Victim's out-of-court statements during prior domestic violence investigations admissible under forfeiture by wrongdoing exception to confrontation clause because there was evidence that defendant killed victim to render her unavailable as a witness. (See Giles v. California (2008) 554 U.S. ___, 128 S.Ct. 2678.)

Homicide -
People v. Coyle (3rd Dist., 10/9/09, C058218) ___ Cal.App.4th  ___
    Defendant improperly convicted of three counts of murder and trial court erred in tripling LWOP sentence after killing one person. The three counts charged a single offense, murder, under three alternative theories of the offense.

Insanity - refusal to allow defendant to enter plea
People v. Henning (3rd Dist., 10/14/09, C060371) ___ Cal.App.4th  ___
    Placer County Superior Court Judge Charles Wachob erred in refusing to allow defendant to exercise personal right to enter not-guilty-by-reason of insanity plea, and refusing to remove defense counsel who would not allow defendant to enter NGI plea. Issue controlled by People v. Medina (1990) 51 Cal.3d 870. Both errors harmless in light of "abundant, uncontradicted evidence" that there was no factual basis for finding of NGI. Defendant's theory of insanity was that after playing Grand Theft Auto for 10 hours, and having stayed up for 10 hours using meth, he just thought he was following game instructions in engaging in robbery mission. Numerous experts opined he was not insane.

Restitution fine - offsetting payment of actual restitution
People v. Vasquez (2nd Dist., 10/13/09, B213000) ___ Cal.App.4th  ___
    Trial court erred in staying restitution fine until actual restitution paid. There is no basis in statute for offsetting direct payments to victim against restitution fine.

Sentencing - consecutive sentencing
People v. Munoz (3rd Dist., 10/13/09, C058521) ___ Cal.App.4th  ___
    Trial court erred in finding that there were separate victims and separate times, so as to justify consecutive sentencing. The finding of "separate times" was clearly erroneous. Court did not understand scope of its discretion, so sentencing remanded. Ruling otherwise within court's power must be set aside as denial of fair hearing and fundamental procedural rights when it appears trial court failed to exercise its discretion. (People v. Downey (2000) 82 Cal.App.4th 899, 912.)

Speedy trial - no grace period when defendant did not waive time
Smith v. Superior Court  (1st Dist., 10/13/09, A124763) ___ Cal.App.4th  ___
    San Francisco Superior Court Judge Ksenia Tsenin erred in refusing to dismiss charges on grounds of denial of speedy trial under Penal Code section 1382. Judge continued matter because attorney for the co-defendant was ill, and then applied 10-day grace period of Penal Code section 1382. Ten day grace period did not apply to objecting defendant who had never waived time, using plain-language of Penal Code section 1382 as standard. No good cause found under Penal Code section 1050.1 to continue case into grace period.

Threats - sufficiency of evidence
People v. Smith (2nd Dist., 10/19/09, B214460) ___ Cal.App.4th  ___
    Even though defendant was in Texas and unemployed when he made threat to victim in California, given his long and escalating history of violence it was reasonable for victim to believe that he would carry through with them.

Weapons - Second Amendment challenge
People v. Villa (3rd Dist., 10/15/09, C059808) ___ Cal.App.4th  ___
    Convictions for juvenile possession of firearm (PC 12021(e)) and possession of loaded firearm in public (PC 12031) are not prohibited by District of Columbia v. Heller (2008) 554 U.S. ___ [171 L.Ed.2d 637]. Juvenile possession requires a prior adjudication, which makes it similar to prohibition on firearm possession by misdemeanant, upheld in People v. Flores (2008) 169 Cal.App.4th 568. Using same case, it finds that the loaded-weapon-in-public charge "is so far removed from the blanket restrictions at issue in Heller that its constitutional validity remains undisturbed by the Supreme Court's opinion." (Flores, at p. 576.)

Indexed copies of Senate health care bills

I have indexed the Chairman's Mark of the Senate Finance Committee's health care bill and the summary of the Senate Health, Education etc. (HELP) bill. The first one below is the Baucus Bill as passed by the Senate Finance Committee today. The second one is a summary of the HELP bill.

If you open them with Adobe Acrobat Reader and open the Bookmarks pane you'll see links to the portions. The HELP summary is only lightly indexed.

Of course everything will change quickly as the two bills are combined into one for the full Senate vote. Enjoy.

Download Americas_Healthy_Future_Act_amended_100209

Download DetailedSummary

Case summaries - Oct 9, 2009

Defenses - collateral estoppel
People v. Gordon (2nd Dist., 9/2/09, B209075) ___ Cal.App.4th  ___
    Under principles of collateral estoppel, defendant could not be prosecuted for possession of firearm in court trial following severance of counts after jury acquitted him of all charges relating to the incident where he allegedly possessed the gun, since contested issue of identity crucial to guilt in both proceedings was necessarily decided in his favor in the jury trial that preceded the court trial. See Ashe v. Swensen (1970) 397 U.S. 436, 443.

Discovery - denial of Pitchess motion
People v. Galan (2nd Dist., 10/5/09, B209903) ___ Cal.App.4th  ___
    Where defendant's undisputed extrajudicial statements are reasonably consistent with officer's description of event, Pitchess discovery is foreclosed, because notwithstanding defense counsel's declaration to contrary, client implicitly acknowledged officer was truthful.

Juveniles - violation but not revocation of probation
In re T.P. (2nd Dist., 9/17/09, B209520) ___ Cal.App.4th  ___
    Juvenile court finding that minor violated probation does not render minor ineligible for deferred entry of judgment, but revocation of probation does. Judgment reversed and remanded for proceedings to determine if minor is suitable for the program under Welfare & Institutions Code section 791(b).

Sex offender registration - children under 16
People v. Cavallaro (6th Dist., 10/6/09, H032499) ___ Cal.App.4th  ___
    Mandatory sex offender registration for defendant convicted of lewd acts with children under 16 and 10 years younger than defendant is not unconstitutional under reasoning of People v. Hofsheider (2006) 37 Cal.4th 1185 (mandatory registration for defendant guilty of non-forcible oral copulation with 16-yr old equal protection violation since defendants convicted of unlawful sexual intercourse not required to register).

Life logging - an experiment

I've been keeping a detailed journal for the last several years, and it has improved my recollection and sense of organization. But after reading Gordon Bell's Total Recall I feel ready to take life logging (that's what Bell calls the process leading to Total Recall) to the next level. No, I'm not going to hang a camera around my neck or start recording telephone calls (my friends already think I'm creepy enough). I've been using the Bento database (now on version 3) to organize my case work, and I'm slowly expanding its use to keep track of all the stuff in my life. It takes time to annotate every action of some importance, and to scan every meaningful piece of paper, then to tie the two together. But I'm already seeing value. I spend far less time looking for information. Today I spent a few hours scanning high school photos my mother had kept in an album. The scanned photos look better than the originals, and I don't have to worry about fire or earthquake.