ElectricLawyer

May 8, 2008 Reasonable Doubts

SPEEDY TRIAL - FEDERAL - TOLLING
United States v. Pete (9th Cir. 5/8/08, 06-10390) 08 C.D.O.S. 5496
Delay caused by defendant's interlocutory appeal including up until
Supreme Court denied cert was excludable from Speedy Trial Act's
filing requirement.

SPEEDY TRIAL - FEDERAL - FAILURE TO ARREST OR NOTIFY DEFENDANT ABROAD
United States v. Mendoza (9th Cir. 5/8/08, 06-50447) 08 C.D.O.S. 5505
Eight-year delay between indictment and arrest violated Sixth
Amendment when government made no effort to arrest defendant who had
gone to the Phillipines but left contact information, or to contact
him to inform him of warrant. All government did was to enter warrant
into American law enforcement system. Compare, United States v. Corona-
Verbera (9th Cir. 2007) 509 F.3d 1105 (government contacted Unsolved
Mysteries and America's Most Wanted, which aired over 20 segments in
U.S. and Mexico).

EXPERTS - CRIMINOLOGIST AS PRISON LIFE ADJUSTMENT EXPERT
People v. Watson (Ca. Sup. Ct., 5/8/08, S024471) 08 C.D.O.S. 5515
Trial court did not abuse discretion in excluding testimony of
defense criminologist about defendant's adjustment to prison life. "As
the court reasoned, Sickler characterized himself not as an expert,
but as a penalty phase investigator whose role was to collect and
analyze records and information from lay witnesses about a defendant's
background, and to "synthesize" such data for the jury. Although the
stresses of prison life and an individual's ability to adapt to such
circumstances are subjects beyond common experience and expert
testimony thereon likely would have likely been helpful to the jury
(Evid. Code, ? 801, subd. (a)), Sickler was not qualified to offer
such testimony. Sickler had a significant educational background in
criminal justice and was experienced in noncapital sentencing
alternatives, but he was not a psychologist and candidly acknowledged
he was not qualified to offer an expert opinion as to the
psychological impact of defendant's upbringing on his current behavior
or how defendant would actually adjust to life in prison."

EVIDENCE - DESTRUCTIVE BLOOD TEST RESULTS
People v. Varghese (C.A. 4th, 5/8/08, D048456) 08 C.D.O.S. 5545
Trial court did not abuse discretion in refusing confidential DNA
test that would have destroyed remainder of blood stain. Prosecution
suggested a neutral expert who would reveal results to both sides but
defendant refused, arguing that DA had already tested it once. Court
distinguishes Prince v. Superior Court (1992) 8 Cal.App.4th 1176
because there the sample was large enough to allow each party to
conduct five DNA tests.

May 6, 2008 Reasonable Doubts

MISCONDUCT - PROSECUTORIAL - DNA EVIDENCE - "PROSECUTOR'S FALLACY"
Brown v. Farwell (9th Cir. 5/5/08, 07-15592) 08 C.D.O.S. 5353
"At Petitioner Troy Brown's trial for sexual assault, the Warden and
State's ('Respondents') deoxyribonucleic acid ('DNA') expert [Washoe
County Sheriff's Office Crime Lab employee Renee Romero] provided
critical testimony that was later proved to be inaccurate and
misleading. Respondents have conceded at least twice that, absent this
faulty DNA testimony, there was not sufficient evidence to sustain
Troy's conviction.[Fn.om.] In light of these extraordinary
circumstances, we agree with District Judge Philip M. Pro's
conclusions that Troy was denied due process, and we affirm the
district court's grant of Troy's petition for writ of habeas corpus."
Romero's testimony was unreliable for two reasons. First, when she
testified that the DNA showed a nearly 100% chance of defendant's
guilt, she fell into the "prosecutor's fallacy," which occurs "when
the prosecutor elicits testimony that confuses source probability with
random match probability. Put another way, a prosecutor errs when he
'presents statistical evidence to suggest that the [DNA] evidence
indicates the likelihood of the defendant's guilt rather than the odds
of the evidence having been found in a randomly selected
sample.'" (United States v. Shonubi, 895 F.Supp. 460, 516 (EDNY 1995).
Second, Romero inaccurately minimized the likelihood that defendant's
DNA matched one of his four brothers.
Ed. Note: of course the prosecutor who put this evidence on is not
named.

MISCONDUCT - PROSECUTORIAL - HIDING EXCULPATORY EVIDENCE
In re Miranda (Ca. Sup. Ct., 5/5/08, S058528) 08 C.D.O.S. 5360
Los Angeles prosecutors presented testimony of Joe Saucedo that
defendant had killed another person, while all the time possessing a
letter by an inmate (Montez) recounting Saucedo's confession that he
had killed the person. Prosecutors also had "numerous additional
items" pointing to Saucedo's guilt that he did not disclose to the
defense. The prosecutors involved are Lance Ito (yes, that Lance Ito)
now-judge Frederick Horn, and Curt Hazell (still a DA). Of the three,
only Ito admitted to having ever sseen the Montez letter. None of the
three had a record of having turned over the letter. The letter was
disclosed to federal habeas counsel.
Ed. Note: okay, folks, so which of these three men is lying? The
California Supreme Court doesn't even seem interested. It did not
refer any of the three to the State Bar, as it is required by law to do.

WITNESSES - NO DA DUTY TO IMMUNIZE
People v. Williams (Ca. Sup. Ct., 5/5/08, S052520) 08 C.D.O.S. 5377
Confrontation right not violated by allowing prosecution witness to
invoke self-incrimination privilege. Neither prosecutor nor court was
obligated to offer prosecution witness immunity.

SEVERANCE - CHARGES - CROSS-ADMISSIBLE
People v. Albillar (C.A. 2nd, 5/5/08, B194358) 08 C.D.O.S. 5403
You know the defendants are going to lose when the case starts out:
"A person who joins a criminal street gang, boasts of his membership,
and commits crimes with fellow gang members, is in a poor posture to
complain about evidence of gang association. A trial is a search for
the truth and no defendant has the right to an antiseptic trial where
the jury is deprived of a full and relevant evidentiary presentation.
(See e.g., People v Zack (1986) 184 Cal.App.3d 409, 415). Here the
trial court, consistent with both the law and common sense, exercised
its discretion and allowed this evidence in a unitary trial. As we
shall explain, despite their best efforts to present this as something
other than a 'gang' rape, appellants have failed to do so."

MISCONDUCT - PROSECUTORIAL - DISMISSAL AS REMEDY
United States v. Chapman (9th Cir. 5/6/08, 06-10316) 08 C.D.O.S. 5415
Dismissal of indictment as penalty for prosecutor's failure to
disclose over 650 pages of documents upheld. But defendants not
entitled to attorneys' fees under Hyde Amendment. The discovery
violations were repeated and the (unnamed, of course) prosecutors kept
saying they had handed over everything. The worst offender is called
"AUSA" in the decision. Even though the Ninth Circuit panel is clearly
angry, "The government's tactics on appeal only reinforce our
conclusion that it still has failed to grasp the severity of the
prosecutorial misconduct involved here, as well as the importance of
its constitutionally imposed discovery obligations," it steadfastly
keeps their names secret.
Ed. Note: Why? Why keep the names secret?

SEARCH & SEIZURE - EMERGENCY AID
People v. Gemmill (C.A. 3rd, 5/6/08, C055464) 08 C.D.O.S. 5437
Under "emergency aid" exception, officers may enter a home to render
emergency assistance. (Brigham City v. Stuart (2006) 547 U.S. ___, 164
L.Ed.2d 650, 657-659.) Third District holds that officers may conduct
search less intrusive than physical entry when they have objectively
reasonable basis to suspect some inside might be seriously injured.
Police had found an unattended child wandering in the street, and
while trying to get people to answer door, they saw baby playing with
plastic bag and nonresponsive adult. They entered and "While tending
to the infant and the adult and looking for other unattended children,
the police officers discovered over 550 grams of marijuana and
methamphetamine paraphernalia, within a child's reach."

What Was She Thinking? Judge Joyce Allegro

I haven't given out the "What Were They Thinking" award in quite a
while, but Judge Joyce Allegro earned it this month.

In People v. Mohammed (C.A. 6th, 5/2/08, H030980) 08 C.D.O.S. 5328,
the judge allowed the DA to re-open following defendant's motion for
judgment of acquittal to present evidence that a defendant charged
with failing to appear after being released on own recognizance (O.R.)
did not have to sign a written promise to appear, despite the fact
that this is what the statute says. The Sixth District had no problem
finding that there was nothing ambiguous or unclear about Penal Code
section 1318, and that it requires a signed release agreement:
"Finally, if we were to allow substantial compliance with section
1318 ... we would be condoning the lower court's disregard for a
legislative enactment."

As if this error was not plain enough, the judge allowed a lawyer
named Steven Avilla to testify as an expert that defense counsel would
be required to make sure the client understood the duty to appear in
court. What's wrong with this? Mr. Avilla is, according to the Sixth
District, "the executive director of the Legal Aid Society conflicts
program in Santa Clara County who appointed defense counsel to
represent appellant. Defense counsel pointed out that she had had
discussion with Mr. Avilla about the case as had Ms. Mohammed." In
other words, he had an attorney-client relationship with the
defendant. How was he allowed to testify against her?

The trial judge then struck the testimony of defense attorney Mark
Arnold, testifying as expert, that a defendant released on O.R. has to
sign a statement promising to appear.

Maybe I'm missing something here, and the award is being issued in
error. And maybe Mr. Avilla would like to explain why he agreed to
testify as an expert.

May 5, 2008 Reasonable Doubts

SENTENCING - FEDERAL - COST OF IMPRISONMENT
United States v. Tapia-Romero (9th Cir. 5/1/08, 05-5021) 08 C.D.O.S.
5210
Cost to society of imprisoning a defendant is not a factor to be
considered in determining length of sentence. Note that court may
consider imprisonment costs under 18 U.S.C. section 3572 when
determining amount of fine.

JURY SELECTION - BATSON/WHEELER - PROCEDURE ON REMAND
People v. Kelly (C.A. 4th, 4/30/08, E042607) 08 C.D.O.S. 5250
On remand for San Bernardino County Superior Court Judge W. Robert
Fawke to conduct hearing to determine prosecutor's reasons for
challenging jurors under Batson/Wheeler, trial court did not abuse
discretion in proceeding with new appointed counsel who did not have
"firsthand" knowledge of the contested voir dire. "Defendant points to
nothing defense counsel could have done at the hearing that he did not
do."

HABEAS CORPUS - FEDERAL - MITIGATION
Pinholster v. Ayers (9th Cir. 5/2/08, 03-99003) 08 C.D.O.S. 5275
Assuming failure to investigate physical evidence fell below
objective standard of reasonableness (first prong of Strickland v.
Washington (1984) 466 U.S. 668, 687), no prejudice (second prong)
shown. At most, it would have been a battle of experts. Defendant was
active participant in own defense, and likely would have testified
despite any weakness in evidence.
District court's grant of habeas based on penalty phase ineffective
assistance reversed. The "potential mitigating evidence is
insufficient to outweigh the overwhelming aggravating evidence. We are
heavily influenced by the damage Pinholster did to himself when he
took the stand in the guilt phase and testified to an unrepentant life
of violent crime." Defendant also contradicted some of the contentions
of family abuse in an interview with a defense investigator, conducted
during preparation of life history. "The California Supreme Court has
faced a revolving door of experts, each presenting his or her own
theory on Pinholster's mental health. Although we have no pronounced
reason to question the credibility of Pinholster's new experts, we
conclude that no newly-minted expert theory to explain his behavior
would have made a difference in the face of what Pinholster said and
did."
Note concurrence of Kozinski, who wonders whether Rompilla v. Beard
(2005) 545 U.S. 374, 393, still allows courts to reweigh evidence in
aggravation against totality of mitigating evidence when counsel had
failed to uncover all the mitigating evidence. He concurs because he
thinks Rompilla would not have overruled Wiggins v. Smith (2003) 539
U.S. 510, 534 without "bothering to say so." Judge Fisher dissents,
opining that Rompilla, Wiggins, and Williams v. Taylor (2000) 529 U.S.
362 hold that Sixth Amendment rights are violated when lawyers fail to
present available mitigating evidence.

BAIL/O.R. - PROOF OF FAILURE TO APPEAR WHILE ON O.R.
People v. Mohammed (C.A. 6th, 5/2/08, H030980) 08 C.D.O.S. 5328
Evidence to convict of violating Penal Code section 1320, subdivision
(b) (failure to appear while released on O.R.) insufficient when
prosecution failed to present evidence that defendant had signed a
written agreement conforming to Penal Code section 1318. The unnamed
trial judge allowed the DA to re-open following defendant's motion for
judgment of acquittal, and present evidence from Steven Avilla that
defense counsel would be required to make sure the client understood
the duty to appear in court. The trial judge then struck the testimony
of defense attorney Mark Arnold, testifying as expert, that a
defendant released on O.R. has to sign a statement promising to appear.
Appellate court applies de novo standard of review because trial
court held as a matter of law that a defendant could violate section
1320 if there had been "substantial compliance" with section 1318.
Court holds there is nothing ambiguous or unclear about section 1318.
It requires a signed release agreement. Literal compliance with the
statute is required.
In a footnote, the court notes that Avilla "is the executive director
of the Legal Aid Society conflicts program in Santa Clara County who
appointed defense counsel to represent appellant. Defense counsel
pointed out that she had had discussion with Mr. Avilla about the case
as had Ms. Mohammed." The court does not discuss this, but why did he
testify? Isn't there some attorney/client privilege here?
Ed. Note: who is the trial judge in this case?

May 1, 2008 Reasonable Doubts

FINES AND FEES - 10 PERCENT ADMINISTRATIVE FEE ON RESTITUTION
People v. Eddards (C.A. 3rd, 4/30/08, C054656) 08 C.D.O.S. 5159
Shasta County Superior Court Judge Jack H. Halpin imposed
unauthorized 10 percent administrative fee on restitution to State
Restitution Fund. Administrative burdens that justify fee do not apply
to restitution to the restitution fund. Penal Code section 1203.1,
subdivision (l) refers only to restitution to victim and plain meaning
controls (Kavanaugh v. West Sonoma County Union High School Dist.
(2003) 29 Cal.4th 911, 919.) A statute should be interpreted with
reference to the whole system of law of which it is a part so that all
may be harmonized and have effect. (Ibid.)

FINES AND FEES - REMAND FOR TRIAL COURT TO SPECIFY STATUTORY BASES FOR
FINES AND FEES
People v. Eddards (C.A. 3rd, 4/30/08, C054656) 08 C.D.O.S. 5159
AG conceded that case had to be remanded to trial court for it to
specify the statutory bases for the imposition of all fines and fees,
even when defendant is not sentenced to prison and abstract of
judgment is not produced. (See People v. High (2004) 119 Cal.App.4th
1192 [fines and fees must be set forth in abstract of judgment].)
Penal Code section 1213 requires commitment document which has "form
and content" of abstract of judgment.

JURY SELECTION - BATSON/WHEELER - PASTOR WHOSE WIFE WORKED IN COUNTY
WELFARE DEPT
People v. Semien (C.A. 3rd, 4/30/08, C053802) 08 C.D.O.S. 5161
Yolo County DA's reasons for striking sole African-American on panel
had nothing to with race, but was based on fact that he was a pastor
who served an underprivileged community, and combined with wife's job
in county welfare, pastor might be more sympathetic towards defendant.

SPEEDY TRIAL - CHALLENGE TO CONTINUANCE MOTION
Mendez v. Superior Court (People) (C.A. 4th, 4/30/08, D051512) 08
C.D.O.S. 5177
Trial court did not abuse discretion in hearing DA's motion to
continue despite lack of written motion when trial DA was in trial in
another case, and DA's office had not learned that police officer had
gone on vacation until the afternoon before the motion. Court chides
trial DA for not communicating to the court knowledge of the officer's
unavailability earlier, but notes that DA making the motion did not
make any misrepresentations. Trial court did not abuse discretion in
continuing matter for 10 days as it was a domestic violence case, and
Penal Code section 1050, subdivision (g) permits a 10-day continuance.
In any event, officer's absence was also good cause. Trial court
hearing Penal Code section 1382 motion was not limited to considering
only evidence presented at Penal Code section 1050 motion.

DISMISSALS - FEDERAL - SERIOUS CRIME PERMITS RE-PROSECUTION
United States v. Medina (9th Cir. 4/29/08, 05-30477) 08 C.D.O.S. 5034
Trial court did not abuse discretion in dismissing indictment without
prejudice to re-prosecution as delay was only 21 days, and offense was
serious. It also noted that defense counsel had agreed to the
continuances, and the delay was not the product of bad faith on
government's part.

EXTRADITION - TO KOREA
Choe v. Torres (9th Cir. 4/29/08, 06-56634) 08 C.D.O.S. 5044
No error in ordering extradition. Offense of bribing officials met
"dual criminality" requirement (offense must be a crime in both
countries). But government failed to present sufficient evidence that
defendant committed particular acts of which he was accused. Offense
of bribing police officer was supported by sufficient evidence even
though the evidence might prove weak in trial.

CHILD MOLEST - FEDERAL - SUPERVISED RELEASE CONDITIONS
United States v. Stoterau (9th Cir. 4/29/08, 07-50124) 08 C.D.O.S. 5048
Condition that defendant not access "any material that relates to
pornography of any kind" was vague and required remand for greater
specificity. Polygraph condition valid because defendant retains Fifth
Amendment rights. Condition of "Abel testing," where subject views
slides of clothed persons to measure interest in the persons portrayed
was valid. Delegating to probation officer power to require defendant
to pay some costs of his treatment not error. Prohibition on using
commercial mail-receiving agency not abuse, as long as defendant could
receive mail at home and could open PO box with probation officer's
permission. Restrictions on being around or employing minors were
reasonable.

APPEALS - ISSUING OPINION UNDER PSEUDONYM
United States v. Stoterau (9th Cir. 4/29/08, 07-50124) 08 C.D.O.S. 5048
Convicted child molester's case was not sufficiently unusual to
warrant issuance of opinion using pseudonym.

April 29, 2008 Reasonable Doubts

IMMIGRATION CONSEQUENCES - CALIFORNIA BURGLARY
United States v. Aguila-Montes de Oca (9th Cir. 4/28/08, 05-50170) 08
C.D.O.S. 4937
California residential burglary, Penal Code section 459, is "crime of
violence" under section 2L1.2(b)(1)(A) of Sentencing Guidelines, and
supports court's imposition of 16-level sentence enhancement.

IMMIGRATION CONSEQUENCES - CALIFORNIA AGGRAVATED ASSAULT
Ortiz-Magana v. Mukasey (9th Cir. 4/28/08, 06-72797) 08 C.D.O.S. 4952
Assault with deadly weapon, California Penal Code section 245(a)(1)
is crime of violence under 18 U.S.C. section 16, and convicted alien
is "aggravated felon" for immigration purposes. So is person convicted
as aider and abettor.

SENTENCING - FEDERAL - POST-PLEA CONDUCT
United States v. Mara (9th Cir. 4/28/08, 07-30102) 08 C.D.O.S. 4958
Post-plea involvement in jail violence could be considered failure to
accept responsibility and form basis for denying downward adjustment.

HOMICIDE - LYING-IN-WAIT - DELAY
People v. Lewis (Ca. Sup. Ct., 4/28/08, S031603) 08 C.D.O.S. 4967
Killings did not occur in the course of lying in wait, though
forcible kidnapping did. Defendant then drove the still living victims
around in their cars for periods of one to three hours, while
withdrawing money from their bank accounts, before killing them. By
the time of the killings, the concealment, the watchful waiting, and
the surprise attack all had taken place at least one and up to three
hours earlier. Insufficient evidence for lying-in-wait special
circumstance. Facial constitutional challenge to special circumstance
under Maynard v. Cartwright (1988) 486 U.S. 356 rejected. "We have
limited the special circumstance to cases in which the killer
intentionally takes life under circumstances that include a
concealment of purpose, a substantial period of watching and waiting
for an opportune time to act, and immediately thereafter a surprise
attack on an unsuspecting victim from a position of advantage."

EVIDENCE - DRAWINGS AS HEARSAY
People v. Lewis (Ca. Sup. Ct., 4/28/08, S031603) 08 C.D.O.S. 4967
Court erred (harmlessly of course, since this is a death penalty
case) in admitting cartoon-like drawings found in apartment. The
drawings were hearsay because the jury was asked to conclude that they
were intended as substitute for verbal expression and conveyed truth
of assertion that defendant committed robberies with sawed-off
shotgun. Because there was no evidence defendant made the drawings,
they could not be admitted as hearsay exception for admissions. Not
adoptive admissions because no evidence defendant had ever seen them.

LESSER INCLUDEDS - NO ROBBERY IN KIDNAPPING FOR ROBBERY
People v. Lewis (Ca. Sup. Ct., 4/28/08, S031603) 08 C.D.O.S. 4967
Because one can commit a kidnapping for robbery without also
committing a robbery, robbery is not a lesser included offense of
kidnapping for robbery.

SENTENCING - PENAL CODE SECTION 654 - KIDNAPPING FOR ROBBERY AND ROBBERY
People v. Lewis (Ca. Sup. Ct., 4/28/08, S031603) 08 C.D.O.S. 4967
Penal Code section 654 bars multiple punishment for separate offenses
arising out of single occurrence when all offenses were incident to
one objective. (Neal v. California (1960) 55 Cal.2d 11, 19.) Here,
kidnappings and robberies were all committed to single intent of
robbery.

April 25, 2008 Reasonable Doubts

IMMIGRATION CONSEQUENCES - CALIFORNIA ANNOYING/MOLESTING CHILD
Nicanor-Romero v. Mukasey (9th Cir. 4/24/08, 03-73564) 08 C.D.O.S. 4745
Violation of Penal Code section 647.6, subdivision (a) (California
annoying or molesting child), a misdemeanor, is not a crime of moral
turpitude. Bybee dissents.

PIRACY - SEIZURE IN INTERNATIONAL WATERS
United States v. Shi (9th Cir. 4/24/08, 06-10389) 08 C.D.O.S. 4764
Ship's cook who killed captain and first mate and seized ship in
international waters, was eventually overpowered by rest of crew and
imprisoned, and then picked up by Coast Guard, was subject to
prosecution in U.S. for violating 18 U.S.C. section 2280 (acts of
violence that endanger maritime navigation). Defendant was "later
found" in the United States (a requirement for jurisdiction) even if
brought there involuntarily.

WITNESSES - DEPORTATION OF
People v. Jacinto (C.A. 1st, 4/23/08, A117076) 08 C.D.O.S. 4802
Even though defense witness had been served with subpoena, this was
not enough to put sheriff and prosecution on notice that he was
material witness, and therefore deportation, with which sheriff
cooperated, was not state action depriving defendant of constitutional
rights. See United States v. Valenzuela-Bernal (1982) 458 U.S. 858,
867, 872-873 (no Sixth Amendment violation without showing witness was
material and favorable). Here, witness was material and favorable, but
actions of jail personnel could not be attributed to prosecutor, and
they were not notified by the defense beyond knowing that a subpoena
had been issued.
Ed. Note: this decision is wrong. The subpoena was an order from the
court, and the sheriff knew the defense had issued it. What more does
one need? Obviously the defense would not be calling an unfavorable
witness. But in the future, defense counsel should notifiy the sheriff
by letter that witness is material and favorable.

COUNSEL - RIGHT TO DISCHARGE RETAINED COUNSEL
People v. Keshishian (C.A. 2nd, 4/24/08, B194821) 08 C.D.O.S. 4820
Right to fire retained counsel is not absolute, and request may be
denied if made on day set for trial. See (People v. Ortiz (1990) 51
Cal.3d 975, 983.)

SEXUALLY VIOLENT PREDATORS - EXCESSIVE DELAY
People v. Litmon (C.A. 6th, 4/23/08, H031348) 08 C.D.O.S. 4837
"[S]uperior court apparently believed it had no authority to dismiss
because appellant was not entitled to a 'speedy trial' and failed to
recognize that appellant was constitutionally entitled to be heard at
a 'meaningful time' as a matter of due process. The court below failed
to engage in a nuanced balancing process necessary to resolve
appellant's procedural due process claim." Government's interest in
conserving limited resources (not enough expert witnesses) was a
"pecuniary interest" that had to be accorded "much lesser weight than
the quintessential liberty interest at stake here." Court holds that
trial must take place before commitment term ends.

JUVENILES - HEARSAY ADMISSIBLE AT DISPOSITIONAL HEARING
In re Vincent G. (C.A. 3rd, 4/23/08, C055068) 08 C.D.O.S. 4695
Hearsay properly admitted at dispositional hearing. Court uses cases
involving dependency hearings to justify its ruling. (E.g., In re
Corey A. (1991) 227 Cal.App.3d 339.)

SEX OFFENSES - CONSECUTIVE SENTENCING
People v. Figueroa (C.A. 4th, 4/22/08, E041876) 08 C.D.O.S. 4720
Consecutive terms for violations of Penal Code section 269 are
mandatory under Penal Code section 667.6, subdivision (d).

SHACKLING - PRO PER DEFENDANT People v. Soukomiane (C.A. 5th, 4/23/08, F052781) 08 C.D.O.S. 4722
Tulare County Superior Court Judge Ronn M. Couillard (retired,
sitting by designation) erred and abused his discretion in shackling
pro per defendant without taking precautions to keep jury from seeing
and hearing shackles. Judge also erred and abused discretion in
removing defendant to a back room where he could not hear part of
prosecutor's examination of key witness.
Justice Cornell concurs separately to give some advice to judges
faced with this situation in the future. Such advice is lovely, but
should not be necessary. Judges are presumed to know the law and if
the do not, they should not be presiding over cases.
Ed. Note: the defendant here made a better record than many I've seen
where counsel stood by a client's side. Congratulations, Mr. Soukomiane.

April 23, 2008 Reasonable Doubts

IMMIGRATION CONSEQUENCES - CAR THEFT AND EVADING
Penuliar v. Mukasey (9th Cir. 4/22/08, 03-71578) 08 C.D.O.S. 4622
Neither Vehicle Code section 10851 (California unlawful taking/
driving of vehicle) or Vehicle Code section 2800.2, subdivision (a)
(evading officer) constituted "aggravated felonies" for removal
purposes. Evading is not a "crime of violence" since it may be
committed by negligent or reckless conduct, and unlawful driving is
not a theft offense because includes being an accomplice after the
fact to the crime.

GANGS - GANG ELEMENT IN EVADING OFFENSE
People v. Margarejo (C.A. 2nd, 4/22/08, B196889) 08 C.D.O.S. 4628
Evasion of police offense was related to defendant's gang status when
defendant continually made gang signs to pedestrians as he sped past.
He "even made this sign to the police." (Emphasis.) Court concludes
that defendant was trying to intimidate the passersby by showing them
that his gang was still in charge.

SEARCH & SEIZURE - NO FOURTH AMENDMENT PROTECTION EVEN WHEN ARREST AND
SEARCH VIOLATE STATE LAW
Virginia v. Moore (U.S. Sup. Ct., 4/23/08, 06-1082) U.S.
Police did not violate Fourth Amendment by arresting (and
subsequently searching) defendant in violation of state law. Fourth
Amendment was not intended by Framers to incorporate statutes
(following reasoning in Atwater v. Lago Vista (2001) 532 U.S. 318,
345). When officer has probable cause to believe person has committed
even a minor crime, arrest is constitutionally reasonable, even if
state laws provide more protection. State's choice of more restrictive
arrest policy does not render less restrictive ones constitutionally
unreasonable. Scalia delivered opinion, with everybody but Ginsburg
joining. Ginsburg concurs separately in judgment, pointing out that
Virginia only provides for disciplining the officer and permitting the
citizen to bring suit, and chose not to provide suppression as a remedy.
Ed. Note: Big deal. This is the other shoe. The first one was
Atwater. The only answer is for states to provide for suppression as a
remedy by state constitution, but California for one has surrendered
its sovereignty and is now stuck with whatever freedoms the federal
courts choose to give its citizens, which aren't much.

PROTECTIVE ORDERS - PROTECTING VICTIM'S CURRENT BOYFRIEND
People v. Selga (C.A. 3rd, 4/22/08, C05582) 08 C.D.O.S. 4648
Trial court did not jurisdiction to issue post-trial protective order
under Penal Code section 1203.097, subdivision (a)(2) protecting
victim's current boyfriend because he is not a person described in
Family Code section 6211 (which includes cohabitants and spouses).
Court would have had power to impose a stay-away order as a condition
of probation, since defendant had threatened the boyfriend and damaged
his car, but didn't do so. Remanded for court to exercise discretion
under Penal Code section 1203.1.

April 21, 2008 Reasonable Doubts

SEARCH & SEIZURE - SUSPICIONLESS SEARCH OF AIRLINE PASSENGER'S LAPTOP

United States v. Arnold (9th Cir. 4/21/08) 06-50581) 08 C.D.O.S. 4533
Customs officers at international airport may examine the electronic 
contents of passenger's laptop computer without reasonable suspicion. 
The search did not damage the computer and was not conducted in a 
"particularly offensive manner."

SEARCH & SEIZURE - CONSENT NOT SUBMISSION TO AUTHORITY

People v. Zamudio (Ca. Sup. Ct., 4/21/08, S074414) 08 C.D.O.S. 4544
Defendant's consent to police examination of his shoes was not 
product of unlawful police detention. Defendant went to police station 
as potential witness. Defendant was questioned in interview room, and 
not cuffed or otherwise held. Officer asked to look at defendant's 
shoes and defendant said yes.

EVIDENCE - TESTIMONY RE EVIDENCE BEING SENT TO DEFENSE LABORATORY

People v. Zamudio (Ca. Sup. Ct., 4/21/08, S074414) 08 C.D.O.S. 4544
Police expert testified that she did not test blood on a ring because 
it would have consumed it in case it had to be tested again, and that 
the evidence had been "released to a defense lab." Counsel objected, 
but not on the grounds raised on appeal. Held, even if claims are 
cognizable, testimony did not violate work product privilege as it 
applies to criminal cases (only "core" work product protected; see 
Garcia v. Superior Court (2007) 42 Cal.4th 63, 63, fn. 2).
Court refuses to reach constitutional issues regarding the admission 
of the testimony because trial counsel did not object on 
constitutional grounds.
Ed. Note: Okay, so the constitutional grounds will be raised on the 
habeas. Obviously there could have been no tactical reason not to 
raise them in his objection. Why not just go ahead and reach them on 
direct appeal?

HOMICIDE - NO INVOLUNTARY MANSLAUGHTER WHEN KILLING IN COMMISSION OF 
INHERENTLY VIOLENT FELONY

People v. Garcia (C.A. 2nd, 4/21/08, B194011) 08 C.D.O.S. 4586
Unlawful killing during commission of an inherently dangerous felony 
(here, hitting victim in face with shotgun butt), even if 
unintentional, is at least voluntary manslaughter. Because assault 
with a deadly weapon or with a firearm is inherently dangerous, trial 
court properly concluded the evidence would not support conviction for 
involuntary manslaughter and therefore did not err in declining to 
instruct jury on involuntary manslaughter as lesser included offense 
of murder.

RESTITUTION - UNDOCUMENTED CLAIMS OF LOSS

People v. Gemelli (C.A. 4th, 4/18/08, E043682) 08 C.D.O.S. 4598
Victim's "bare, unverified" statement of losses is sufficient to 
sustain order for direct restitution under Penal Code section 1202.4, 
subdivision (f). Disagrees with People v. Vournazos (1988) 198 Cal.App.
3d 948. Defendant's testimony refuting amounts did not have to be 
believed.

April 18, 2008 Reasonable Doubts

DEATH PENALTY - LETHAL INJECTION IS OKAY, SORT OF, MAYBE

Baze v. Rees (U.S. Sup. Ct., 4/16/08, 07-5439) 08 C.D.O.S. 4435
Petitioners (prisoners) did not carry burden of showing risk of pain 
from maladministration of a concededly humane lethal injection 
protocol, and failure to adopt untried and untested alternatives, 
constituted cruel and unusual punishment. Roberts delivered an 
opinion, in which Kennedy and Alito joined. Alito concurs separately 
as well. Stevens concurs in the judgment, but takes issue with the use 
of pancuronium bromide, saying that "It is unseemly to say the least 
that Kentucky may well kill petitioners using a drug that it would not 
permit to be used on their pets." He also says that "The thoughtful 
opinions written by The Chief Justice and by Justice Ginsburg have 
persuaded me that current decisions by state legislatures, by the 
Congress of the United States, and by this Court to retain the death 
penalty as a part of our law are the product of habit and inattention 
rather than an acceptable deliberative process that weighs the costs 
and risks of administering that penalty against its identifiable 
benefits, and rest in part on a faulty assumption about the 
retributive force of the death penalty." Scalia and Thomas concur in 
the judgment. Breyer concurs in the judgment. Ginsburg and Souter 
dissent.
Ed. Note: what a mess!

WEAPONS - FEDERAL - FELONY DRIVING UNDER THE INFLUENCE IS NOT VIOLENT 
FELONY FOR ACCA

Begay v. United States (U.S. Sup. Ct., 4/16/08, 06-11543) 08 C.D.O.S. 
4462
Driving under influence of alcohol, at least as defined in New 
Mexico, is not a violent felony under 18 U.S.C. section 924(e)(1) 
(felon in possession of firearm). Alito, Souter and Thomas dissent.

DRUGS - STATE MISDEMEANOR DRUG OFFENSE AS "FELONY DRUG OFFENSE" FOR CSA Burgess v. United States (U.S. Sup. Ct., 4/16/08, 06-11429) 08 
C.D.O.S. 4470
State drug offense classified as a misdemeanor, but punishable by 
more than one year's imprisonment, is a "felony drug offense" as that 
term is used in U.S.C. section 841(b)(1)(A), and doubles the minimum 
sentence to 20 years for defendants convicted of federal drug offense.

PROBATION CONDITION - DRUG TESTING AND FINANCIAL DISCLOSURE

United States v. Garcia (9th Cir. 11/19/07, 05-30356) 08 C.D.O.S. 4474
Recitation of minimum number of drug tests imposed as supervised 
release condition operated as maximum number under United States v. 
Stephens (9th Cir. 2005) 424 F.3d 876, because the court could not 
delegate, explicitly or impliedly, that authority to the probation 
officer. Financial disclosure requirement, even without restitution, 
was reasonable. "[C]certain defendants who have been convicted of drug 
trafficking offenses may properly be required to disclose the details 
of their personal finances as a condition of supervised release."

SEARCH & SEIZURE - PEERING OVER FENCE INTO BACK YARD

People v. Chavez (C.A. 3rd, 4/17/08, C052924) 08 C.D.O.S. 4502
Officer who was looking for defendant who had taken girlfriend's car 
did not violate Fourth Amendment by peering over fence on tiptoes and 
seeing cocked gun, which he then retrieved by climbing over fence 
because he considered it a safety hazard in light of the fact that 
girlfriend had told him that there was a 7-year-old in the house. The 
gun was unloaded and the officer put it in his pocket, then tried to 
check the serial number and found it was obliterated.

SENTENCING - AGGRAVATED TERM BASED ON PROBATIONARY STATUS

People v. Medrano (C.A. 3rd, 4/18/08, C056068) 08 C.D.O.S.
Imposition of upper term based on defendant's probationary status did 
not violate Cunningham v. California (2007) 549 U.S. ___.