CONTEMPT AND SANCTIONS - AGAINST ATTORNEY FOR FRIVOLOUS HABEAS WRIT
In re White (2004) Cal.App.4th , 04 C.D.O.S. 8096 (Third Dist., 9/1/04, C045684)
Third District sanctions defense counsel (under Cal. Rules of Court, rule 27(e)) by forcing him to return the money he received from the petitioners and to pay $25,000 to the court for filing frivolous habeas petitions that "indisputably ha[ve] no merit," i.e., "when any reasonable attorney would agree that the [petitions] [are] totally and completely without merit." (Citing to In re Marriage of Flaherty (1982) 31 Cal.3d 637, 650.)
The court explains that "it is critical not to impede such access to the courts or to deter, for fear of personal liability, the vigorous assertion of an inmate's rights." It also stated that "we do not necessarily equate the failure to state a prima facie case for relief with frivolousness, or with incompetence of the attorney representing the petitioner."
However, here " the attorney abused the writ process, and his clients, by filing frivolous habeas corpus petitions that have absolutely no chance of success. Not only has the attorney conceded that the petitions are patently frivolous and that one petition is also contemptuous, the attorney has admitted that before signing them and having them filed, he did not even read the petitions, which were prepared by law students or by another lawyer working in what can be characterized as the attorney's 'writ mill.' Simply stated, the attorney not only took money from these inmates and their families under false pretenses, he gave them false hope that they had some possibility of success--hope that we must now dash because, as even the attorney concedes, the writ petitions are doomed to fail." One "96-page petition reveals it contains gross misstatements of fact, misrepresentations of law, and repetitions of appellate contentions long ago resolved against White. In addition, the petition accuses this court of ignoring the law and ruling against White in his earlier appeal because the court was biased in favor of the prosecution." The court determined that the attorney, Richard H. Dangler, Jr., (who has since resigned from the Bar with discipline pending, according to the court) kept about $5,000 from each petition without doing any legal work at all.
Ed. Note: before we storm the court in protest, we should note that the court actually held an evidentiary hearing over three days, allowed the attorney to call and cross-examine witnesses, and called witnesses of its own. This is more process than even is due on a direct contempt or sanctions proceeding. The opinion sets forth a lot of the evidence adduced, and quotes at length from one of the petitions, which accused the Third District of "ben[ding] over backwards to come to the aid of a fallen comrade, which is the San Joaquin County District Attorney." In addition, the attorney had a prior history with the court, and it had struck him from the rolls of appointed appellate counsel.
ENHANCEMENTS - GREAT BODILY INJURY - MULTIPLE IMPOSITIONS WHEN ONLY ONE PERSON INJURED
People v. Oates (2004) Cal.App.4th , 04 C.D.O.S. 8115 (Fourth Dist., 8/31/04, E029354)
Penal Code section 12022.53(d) enhancement, which requires great bodily injury, could be imposed more than once even though only one person was injured, when several people were shot at.
HEARSAY - CRAWFORD - LABORATORY REPORT AT PROBATION VIOLATION HEARING
People v. Johnson (2004) Cal.App.4th , 04 C.D.O.S. 8091 (First Dist. 8/31/04, A105199)
Admission of hearsay laboratory report at defendant's probation violation hearing did not violate Crawford v. Washington (2004) 124 S.Ct. 1354. Note that reliable hearsay is admissible at probation revocations. (See, People v. Maki (1985) 39 Cal.3d 707, 716-717 [car rental and hotel receipts]; People v. Brown (1989) 215 Cal.App.3d 452, 455 [officer's testimony regarding laboratory test results for cocaine sample]; People v. O' Connell (2003) 107 Cal.App.4th 1062, 1066-1067 [report from director of drug counseling program].) Crawford does not apply because probation revocations are not "criminal prosecutions" to which the Sixth Amendment applies. (Morrissey v. Brewer (1972) 408 U.S. 471, 480; Gagnon v. Scarpelli (1973) 411 U.S. 778, 781.) The limited right of probationers to confront witnesses comes from the Fourteenth Amendment due process clause. (Black v. Romano (1985) 471 U.S. 606, 610, 612.). In any event, the laboratory report was not truly testimonial, because if the preparer had appeared, he or she would have merely authenticated the document.
Use Note: I'm not sure I agree with the alternative ground on which the decision rests. Wouldn't the defendant have the right to cross-examine the preparer as to the methods used, the preparer's qualifications, etc?
PRIORS - EFFECT OF LIMITING LANGUAGE IN EXTRADITION ORDER
People v. Minor (2004) Cal.App.4th , 04 C.D.O.S. 8113 (Third Dist., 8/31/04, G031791)
Defendant's sentence could be enhanced based on a crime for which extradition had been sought but denied. The Italian court had granted extradition on charges arising out of Orange County but not a Riverside probation violation, and specifically stated in its order that it found that probation revocation procedures in the U.S. violated the Italian Constitution. Held, "doctrine of speciality," which forbids a requesting nation from prosecuting extradited individual for any offense other than that for which the surrendering state agreed to extradite, did not apply here because his sentence was enhanced by the fact of the Riverside prior conviction, and did not constitute a penalty for that offense. The court also noted that the Italian court had been informed that the Riverside conviction would be used to enhance the Orange County sentence, but it said nothing about enhancement in its order.