ElectricLawyer

June 30, 2005 Reasonable Doubts

APPEALS - GUILTY PLEA - DNA CHALLENGE

People v. Dial (2005) Cal.App.4th , 05 C.D.O.S. 5561 (First Dist., 6/24/05, A103896)

Claim that DNA testing after conviction (Penal Code section 296) violated Fourth Amendment rights not cognizable on appeal. Appeal is from criminal conviction and sentence, and challenge does not affect judgment of conviction.

BATSON/WHEELER - JURORS' EXPRESSED HESITATION TO KILL

People v. Ward (2005) Cal.4th , 05 C.D.O.S. 5856 (Cal. Supreme Court, 6/30/05, S019697)

Prosecutor's challenges to Black jurors justified by their expressed hesitation to impose death penalty, which included their "demeanor" and "manner." Court does admit that it may have to "conduct a comparative juror analysis for the first time on appeal," citing to Miller-El v. Dretke (2005) ___ U.S. ___ [125 S.Ct. 2317, 2316, fn. 2]), something which it has been mightily avoiding for years.

CIVIL RIGHTS - "STATE-CREATED" DANGER

Kennedy v. Ridgefield (2005) F.3d , 05 C.D.O.S. 5488 (9th Cir. 6/23/05, 03-35333)

Police officer not entitled to qualified immunity after telling the mother of a violent rape suspect of the charges made against him by his neighbors, whom the rape suspect then shot. The officer even promised to patrol the area (but obviously didn't).

While ordinarily a state does not guarantee minimal levels of safety (see Town of Castle Rock, Colorado v. Gonzales (2005) U.S. , 05 C.D.O.S. 5642 (U.S. Sup. Court, 6/27/05, 04-278), discussed here), when a state officer's conduct places a person in peril in deliberate indifference to their [sic] safety," liability may arise.

CIVIL RIGHTS - NO PROPERTY INTEREST IN ENFORCEMENT OF ORDER

Town of Castle Rock, Colorado v. Gonzales (2005) U.S. , 05 C.D.O.S. 5642 (U.S. Sup. Court, 6/27/05, 04-278)

Individual who has obtained state-law restraining order does not have constitutionally protected property interest in having police enforce order when they have probable cause to believe it has been violated. Here police blew off mother's pleas to enforce TRO after father had taken the children, and meanwhile the father killed the little girls.

COUNSEL - DUE PROCESS - EXCLUSION OF DEFENDANT FROM IN-CHAMBERS DISCUSSION

Bradley v. Henry (2005) F.3d , 05 C.D.O.S. 5395 (9th Cir. 6/22/05, 04-15919)

Petitioner was denied due process when she was excluded from a critical stage of her trial, an in-chambers hearing where the court and counsel discussed counsel's withdrawal from the case, and defendant's father's interference in the case, and possible danger to the prosecutor from defendant's father. As a result, the court removed counsel (who were retained, but were not getting paid), and replaced them with appointed counsel. The in-chambers proceedings were sealed, and defendant was not allowed the see the transcript. The judge then denied a motion to replace appointed counsel with retained. In reversing, Judge Noonan says, "On trial for her life, with witnesses against her who had participated in the crime, she needed a lawyer whom she could trust, with whom she could communicate freely, who would be her friend, her champion, her sagacious counselor." While noting the changes in counsel which had delayed the trial, he comments, "Impatience, however understandable, cannot short circuit due process, and due process cannot be abandoned because it is difficult to assure." Note Rymer dissent.

COUNSEL - RIGHT TO APPELLATE COUNSEL

Halbert v. Michigan (2005) U.S. , 05 C.D.O.S. 5458 (U.S. Sup. Court, 6/23/05, 03-10198)

Denial of appointed appellate counsel to indigents convicted by guilty plea who were seeking to appeal violated Due Process and Equal Protection clauses of Fourteenth Amendment. Applies Douglas v. California, 372 U.S. 353 (1963). Although federal constitution does not impose obligation to provide appellate review of criminal convictions (McKane v. Durston, 153 U.S. 684, 687 (1894)), having provided such an avenue, State may not "bolt the door to equal justice" to indigent defendants. Griffin v. Illinois, 351 U.S. 12, 24 (1956) (Frankfurter, J., concurring in judgment).

DEATH PENALTY

People v. Ward (2005) Cal.4th , 05 C.D.O.S. 5856 (Cal. Supreme Court, 6/30/05, S019697)

The usual challenges and the usual result, with even less analysis than usual.

DEATH PENALTY - COURT OF APPEALS DELAY IN ISSUING MANDATE

Bell v. Thompson (2005) U.S. , 05 C.D.O.S. 5595 (U.S. Sup. Court, 6/27/05, 04-514)

Sixth Circuit abused discretion in withholding mandate for five months without issuing formal order after Supreme Court denied cert. Court does not reach question whether appellate court had power to stay its mandate. It only holds that it abused power by delaying for so long. Note dissent, arguing that this was just good judging and not an abuse of discretion.

DEATH PENALTY - HARMLESS ERROR

People v. Samuels (2005) Cal.4th , 05 C.D.O.S. 5695 (Cal. Supreme Court, 6/27/05, S042278)

In a case riddled with errors (and possible judicial prejudice towards the defense) the high court finds every error harmless.

Ed. Note: the word "harmless" is used more times in a single opinion than I've ever seen before.

DEFENSES - RIGHT TO INSTRUCTION

People v. Shelmire (2005) Cal.App.4th , 05 C.D.O.S. 5875 (Third Dist., 6/30/05, C045429)

A defendant is entitled to an instruction on a defense only where substantial evidence supports the defense. The first prong of the test in People v. Sedeno (1974) 10 Cal.3d 703 (duty to give instructions arises if it appears defendant is relying on the defense or if there is substantial evidence to support it). See People v. Flood (1998) 18 Cal.4th 470, 480. Here there was no substantial evidence to support defense of withdrawal from conspiracy or duress.

DISCOVERY - PROBATIONER'S FILE BY PROBATIONER

County of Placer v. Superior Court (Stoner) Cal.App.4th , 05 C.D.O.S. 5752 (Third Dist., 6/28/05, C047634)

Regardless whether Penal Code section 1054 discovery applies in probation revocation, trial court had discretion under Penal Code section 1203.10 to allow probationer's counsel to inspect nonconfidential portions of defendant's probation file. See also McGuire v. Superior Court (1993) 12 Cal.App.4th 1685.

DRUNK DRIVING - CAMPUS POLICE OFFICER ARREST OUTSIDE CAMPUS

Brierton v. DMV (2005) Cal.App.4th , 05 C.D.O.S. 5381 (Fourth Dist., 6/21/05, D044120)

Campus police officer had authority to arrest defendant for drunk driving outside the boundaries of the campus because Penal Code section 830.2 gives such officers statewide arrest powers, even though it describes the primary duty as enforcement of the laws on campus and within a one-mile radius (Educ. Code sec. 89560.) Court concludes that "intent of the statutes, when read together, is to create a class of state peace officers whose primary duty is law enforcement in and around state university campuses, but who nevertheless possess the authority to enforce the law statewide. (See Baughman v. State of California (1995) 38 Cal.App.4th 182, 189.)" The city does not have exclusive traffic enforcement powers so as to bar other law enforcement from its boundaries.

HABEAS CORPUS - FEDERAL - AMENDED PETITION RAISING NEW ISSUES

Mayle v. Felix (2005) U.S. , 05 C.D.O.S. 5477 (U.S. Sup. Court, 6/23/05, 04-563)

Amended petition filed after one-year period expired and after counsel was appointed that contained new claim for relief barred. Amended petition does not relate back when it asserts new ground for relief supported by facts that differ in both time and type from those in original pleading, even though first petition was filed pro se. Souter and Stevens dissent, arguing that Court has created an "unfair disparity between indigent habeas petitioners and those able to afford their own counsel."

Use Note: what this means is that a pro se petitioner has to file a first petition that contains all the claims.

HABEAS CORPUS - FEDERAL - RULE 60 MOTION

Gonzalez v. Crosby (2005) U.S. , 05 C.D.O.S. 5453 (U.S. Sup. Court, 6/23/05, 04-6432)

Motion for relief from judgment (denial of habeas petition) made pursuant to Federal Rule of Civil Procedure 60(b) is not subject to additional restrictions that apply to "second or successive" petitions under AEDPA..

HEARSAY - CRAWFORD - PHONE CONVERSATION WITH CO-DEFENDANT

People v. Wahlert (2005) Cal.App.4th , 05 C.D.O.S. 5570 (Fourth Dist., 6/24/05, E035174)

Defendant's statements to co-defendant made during conversation set up by police as a "pretext call" to get evidence against defendant were inadmissible under Crawford. Error harmless beyond reasonable doubt.

IMMIGRATION CONSEQUENCES - NO FEDERAL HABEAS RELIEF

Resendiz v. Kovensky (2005) F.3d , 05 C.D.O.S. 5674 (9th Cir. 6/27/05, 03-55136)

Petitioner was not "in custody" so as to qualify for federal habeas relief when the only "restraint" was an INS hold. See Maleng v. Cook, 490 U.S. 488, 490-91 (1989) (per curiam).

INSANITY - APPRENDI DOES NOT APPLY

People v. Ferris (2005) Cal.App.4th , 05 C.D.O.S. 5769 (Fifth Dist., 6/28/05, F045368)

Apprendi v. New Jersey (2000) 530 U.S. 466 has not altered burden of proof on the question of insanity, and government is not required to prove sanity beyond a reasonable doubt.

JUDGES - NO IMPLIED STIPULATION TO TEMPORARY JUDGE

Foosadas v. Superior Court (People) Cal.App.4th , 05 C.D.O.S. 5535 (Third Dist., 6/23/05, C049375)

Subordinate judicial officer (here, a commissioner) may serve as a temporary judge only upon the stipulation of the parties litigant. (Cal. Const., art. VI, sec. 21; Code Civ. Proc., sec. 259, subd. (d).) This requires an express or implied stipulation that the particular proceeding may be conducted by a temporary judge. A mere failure to object when appearing for hearings not involving judicial functions (continuances, pre-preliminary hearing conferences) is not enough. But if defendant has proceeded through the preliminary hearing without objecting, that would have served as a defacto stipulation. (In re Horton (1991) 54 Cal.3d 83, 91.)

JUVENILES - SUPPLEMENTAL PETITION TO CHANGE PLACEMENT

In re Brent F. (2005) Cal.App.4th , 05 C.D.O.S. 5874 (Third Dist., 6/30/05, C043156)

Probation department could not use Welfare & Institutions Code section 778 petition to change minor's placement into CYA on the grounds that other placement options had been exhausted. Section 777 is the exclusive statutory mechanism for a juvenile court to modify a placement into CYA.

MOTIVE - EVIDENCE OF SPENDING BY DEFENDANT AFTER VICTIM'S DEATH

People v. Samuels (2005) Cal.4th , 05 C.D.O.S. 5695 (Cal. Supreme Court, 6/27/05, S042278)

Evidence showing lavish lifestyle defendant enjoyed after first victim's death (husband) relevant to prove defendant's financial motive for killing. (People v. Sapp (2003) 31 Cal.4th 240, 313.)

SEARCH & SEIZURE - PROBATION SEARCH FOR ITEMS NOT LISTED IN PROBATION CONDITION

People v. Gomez (2005) Cal.App.4th , 05 C.D.O.S. 5796 (Third Dist., 6/29/05, C044621)

Defendant's probationary status and search condition for drugs or weapons constituted waiver of reasonable expectation of privacy in the areas searched, and officer's subjective purpose for search (to look for stolen property) did not make it illegal. Relies in Whren v. United States (1996) 417 U.S. 806.

SEARCH & SEIZURE - STANDING TO CONTEST WIRETAPS

United States v. Gonzalez, Inc. (2005) F.3d , 05 C.D.O.S. 5404 (9th Cir. 6/22/05, 04-10041)

Principals in small family-run business had reasonable expectation of privacy (and therefore standing) in office that they owned and in which they had substantial control of day-to-day operations. Court also affirmed findings that defendants made sufficient showing to warrant Franks hearing, and that government failed to prove necessity for wiretap.

SEX OFFENDER REGISTRATION - DISABLING CONDITION AS DEFENSE

People v. Sorden (2005) Cal.4th , 05 C.D.O.S. 5518 (Cal. Supreme Court, 6/23/05, S120677)

Willfulness element of PC 290 may be negated by evidence that an involuntary condition-physical or mental, temporary or permanent-deprived a defendant of actual knowledge of duty to register. "Only the most disabling of conditions, we emphasize, would qualify under the standard we announce today. Severe Alzheimer's disease is one example that comes to mind; general amnesia induced by severe trauma is another. Defendant's claimed depression clearly did not satisfy this standard. Defendant knew of his obligation to register and, had he taken it to heart, he could have managed to discharge it."

SPEEDY TRIAL - FEDERAL - EFFECT OF PRETRIAL MOTION

United States v. Vo (2005) F.3d , 05 C.D.O.S. 5681 (9th Cir. 6/27/05, 03-10699)

Detention motion pending for twelve days was excludable delay and Speedy Trial Act motion properly denied.

SPEEDY TRIAL - FEDERAL - FIVE-YEAR DELAY

United States v. Barken (2005) F.3d , 05 C.D.O.S. 5677 (9th Cir. 6/27/05, 03-50441)

Defendant not entitled to dismissal of indictment for five-year delay in prosecuting because he could not show actual prejudice. Note that the feds waited until the defendant had been prosecuted by the state, and had reached a settlement and paid fines, etc. before moving in for the kill.

STALKING - HARASSMENT ELEMENT AND UNANIMITY

People v. Zavala (2005) Cal.App.4th , 05 C.D.O.S. 5709 (Fourth Dist., 6/27/05, D044321)

Wife's testimony of her fear of defendant, spending nights at parents' house because of fear, and other actions, were sufficient evidence that wife was "seriously" alarmed by defendant's conduct. Threats to kill wife were sufficient for the threat element.

No unanimity instruction required because stalking is a continuous-course-of-conduct offense.

THREE STRIKES - PRIORS - AGGRAVATED ASSAULT

People v. Banuelos (2005) Cal.App.4th , 05 C.D.O.S. 5530 (Second Dist., 6/23/05, B172385)

Prior Penal Code section 245, subdivision (a)(1) conviction could not qualify as serious felony even though Penal Code section 1192.7's list of serious felonies was amended in 2000 to remove the requirement that the defendant have personally used a weapon. (Subdivision (c)(31).) Assault with a deadly weapon under section 245, subdivision (a)(1) now qualifies as serious felony whether or not the defendant was convicted as a direct perpetrator or as an aider and abettor. (People v. Luna (2004) 113 Cal.App.4th 395, 398.) But the amendment did not change the status of an assault by means of force likely to produce great bodily injury, the other variant of section 245, subdivision (a)(1). Even under the amended law, a conviction of assault by means likely to cause great bodily injury is not a serious felony unless it also involves the use of a deadly weapon or actually results in the personal infliction of great bodily injury. (People v. Haykel (2002) 96 Cal.App.4th 146, 148-149; People v. Winters (2001) 93 Cal.App.4th 273, 280; Williams v. Superior Court (2001) 92 Cal.App.4th 612, 622-624.) Here, 969b packet described conviction as "assault great bodily injury w/deadly weapon." Court disagrees with People v. Luna, which found that the same notation qualified. See People v. Rodriguez (1998) 17 Cal.4th 253, 261.

Download 05-06-30-reasonable-doubts.mp3

June 21, 2005 Reasonable Doubts

AIDING AND ABETTING - NO CRIMINAL CONDUCT BY ANOTHER

People v. Perez (2005) Cal.4th , 05 C.D.O.S. 5336 (Cal. Supreme Court, 6/20/05, S111985)

A defendant may not be found guilty of aiding and abetting absent proof of criminal conduct by another. Proof of aider and abettor liability requires proof in three distinct areas: (a) the direct perpetrator's actus reus-a crime committed by the direct perpetrator, (b) the aider and abettor's mens rea-knowledge of the direct perpetrator's unlawful intent and an intent to assist in achieving those unlawful ends, and (c) the aider and abettor's actus reus-conduct by the aider and abettor that in fact assists the achievement of the crime. People v. McCoy (2001) 25 Cal.4th 1111, 1117. It does not require proof of a completed crime by the principal, however. An attempt is enough.

BLAKELY - NO APPLICATION IN CALIFORNIA

People v. Black (2005) Cal.4th , 05 C.D.O.S. 5326 (Cal. Supreme Court, 6/20/05, S126182)

A defendant is not constitutionally entitled to a jury trial on aggravating factors that justify an upper term sentence or a consecutive sentence. "[T]he judicial factfinding that occurs when a judge exercises discretion to impose an upper term sentence or consecutive terms under California law does not implicate a defendant's Sixth Amendment right to a jury trial." In other words, Blakely v. Washington (2004) 542 U.S., [124 S.Ct. 2531] and United States v. Booker (2005) ___ U.S. ___ [125 S.Ct. 738] don't apply in California.

Note intelligent Kennard J. dissent.

Use Note: counsel should continue making Blakely arguments in the trial and appellate courts (with a nod to the binding precedent of Black) because I think if the U.S. Supremes get their hands on this case they will reverse.

DRUGS - POSSESSION OF METH PRECURSORS

People v. Perez (2005) Cal.4th , 05 C.D.O.S. 5336 (Cal. Supreme Court, 6/20/05, S111985)

Defendant who is found in possession of methamphetamine precursors he intends to sell to another, who intends to make meth, may not be convicted as an aider and abettor to prospective buyer's possession with intent to manufacture or of possessing precursors with intent to manufacture.

HABEAS CORPUS - FEDERAL - FAILURE TO ADVISE PRO SE PETITIONER OF EXPIRATION OF TIME PERIOD

Brambles v. Duncan (2005) F.3d , 05 C.D.O.S. 5251 (9th Cir. 6/17/05, 01-55716)

Under the compulsion of Pliler v. Ford (2004) 124 S.Ct. 2441, Ninth Circuit holds that District Judge Margaret Morrow did not "actively mislead" pro se petitioner even though she failed to inform him of all the consequences of having the entire petition dismissed, which was that he could not refile because the one-year period had expired, and she did not tell him about the stay-and-abey procedure.

HEARSAY - OBJECTION DOES NOT COVER CONFRONTATION CLAUSE

People v. Baylor (2005) Cal.App.4th , 05 C.D.O.S. 5227 (Second Dist., 6/16/05, B172506)

By objecting to prior identification testimony (Pen. Code sec. 1238) as hearsay, defendant did not preserve Confrontation Clause argument. Argument also fails on the merits because hearsay declarant was available for cross-examination.

INEFFECTIVE ASSISTANCE OF COUNSEL - EXAMINATION OF PRIOR CONVICTION CASE FILE

Rompilla v. Beard (2005) U.S. , 05 C.D.O.S. 5306 (U.S. Sup. Court, 6/20/05, 04-5462)

"Even when a capital defendant's family members and the defendant himself have suggested that no mitigating evidence is available, his lawyer is bound to make reasonable efforts to obtain and review material that counsel knows the prosecution will probably rely on as evidence of aggravation at the sentencing phase of trial." Although there was "room for debate" regarding counsel's failure to look at school records, incarceration records, or whether there was a history of alcohol dependence, one point was "dispositive: the lawyers were deficient in failing to examine the court file on Rompilla's prior conviction." "It flouts prudence to deny that a defense lawyer should try to look at a file he knows the prosecution will cull for aggravating evidence, let alone when the file is sitting in the trial courthouse, open for the asking."

On the question of prejudice, it turned out that the prior trial file had a wealth of mitigating information.

JUVENILES - CYA COMMITMENT AT LESS THAN MAXIMUM

In re Jacob J. (2005) Cal.App.4th , 05 C.D.O.S. 5343 (Third Dist., 6/20/05, C046367)

Amendments to Welfare and Institutions Code section 731 require the trial court to set a maximum term of physical confinement at CYA based on particular facts and circumstances of the matter or matters that conferred jurisdiction over the minor in juvenile court. In other words, court has discretion to set term at less than the max.

MOTION TO VACATE - FEDERAL PRISONER - TIME LIMITS

Dodd v. United States (2005) U.S , 05 C.D.O.S. 5291 (U.S. Sup. Court, 6/20/05, 04-5286)

One-year limitations period for filing motion to vacate, set aside or correct sentence runs (inter alia) from date the right asserted in the motion was initially recognized by the U.S. Supreme Court, not from the date it was made retroactive to cases on collateral review.

Use Note: this very narrow reading has "the potential for harsh results in some cases," because "an applicant who files a second or successive motion seeking to take advantage of a new rule of constitutional law will be time barred except in the rare case in which this Court announces a new rule of constitutional law and makes it retroactive within one year." But the majority says: tough luck.

SEARCH & SEIZURE - "NO-KNOCK" ENTRY JUSTIFIED

United States v. Combs (2005) F.3d , 05 C.D.O.S. 5191 (9th Cir. 6/16/05, 03-30456)

Police acted reasonably in executing warrant on meth lab without first physically "knocking" on the front door of defendant's residence.

Ed. Note: they did spend ten or so seconds battering down the door, so I guess that kind of like a knock, and they did announce themselves.

SEARCH & SEIZURE - REASONABLE SUSPICION NOT REQUIRED TO ASK CONSENT TO SEARCH

People v. Gallardo (2005) Cal.App.4th , 05 C.D.O.S. 5233 (Fourth Dist., 6/16/05, G034390)

Detention was not unduly prolonged under People v. McGaughran (1979) 25 Cal.3d 577 by consensual search. Pretextual traffic stop is permissible as long as there is cause for the stop (here, broken taillight). Police do not need reasonable suspicion to ask permission to search.

SEARCH & SEIZURE - SEARCH WARRANT EXHIBIT ONLY PARTIALLY REVIEWED

United States v. Sears (2005) F.3d , 05 C.D.O.S. 5322 (9th Cir. 6/20/05, 03-10573)

Version of exhibit attached to warrant by San Francisco police and shown to judge was narrower than version given to police, because instead of photocopying the exhibit, the cop ran a fresh copy from his computer (which was not the same). Remedy was to suppress items seized under the expanded version, because mistake was not intentional. See New York v. Harris, 495 U.S. 14 (1990), and United States v. Clark, 31 F.3d 831 (9th Cir. 1994). Note Kozinski dissent, pointing out that the police tampered with the warrant, and it was a "sham warrant."

SEARCH & SEIZURE - SUPPRESSION MOTION - DA CONCESSION

People v. Miller (2005) Cal.App.4th , 05 C.D.O.S. 5234 (Fourth Dist., 6/16/05, G033762)

DA conceded that initial stop was conducted without reasonable suspicion and relied on defendant's probationary status, of which the officer was unaware. At oral argument, AG argued for remand because DA had conceded in reliance on the law governing probation searches in effect at the time. Held, concession constitutes a waiver. Prosecutor could have pursued both theories.

TERRORISM - GIVING FINANCIAL SUPPORT TO ORGANIZATIONS DESIGNATED AS "TERRORIST"

United States v. Afshari (2005) F.3d , 05 C.D.O.S. 5255 (9th Cir. 6/17/05, 02-50355)

Statute (18 U.S.C. § 2339B(a)(1)) prohibiting financial support to organization designated by the federal government as "terrorist" is constitutional, even if the original designation of the organization had been obtained in an unconstitutional manner. It was up to the organization to challenge the designation. No First Amendment violation. "Guns and bombs are not speech."

Download 05-06-21-reasonable-doubts.mp3

June 16, 2005 Reasonable Doubts

ALIENS - ILLEGAL RE-ENTRY - FOLLOWING ORDERS

United States v. Zavala-Mendez (2005) F.3d , 05 C.D.O.S. 5151 (9th Cir. 6/15/05, 03-30321)

Previously deported alien was not "found" in the United States when he went straight to the border and presented himself for entry (and was then arrested and transported into the U.S.). Someone is not "found" when he voluntarily presents himself. "Aliens who proceed directly as instructed by signs or otherwise to the customs facility -- be it through an airport corridor, a government designated highway, or some other designated legitimate path -- are not sneaking into the United States. Instead they are presenting themselves to American officials in the manner designated by the United States government. An alien who crosses the border on a government designated path on a highway should be treated like the airport aliens, not the fence-jumping aliens. Like the defendants in the airport entry cases, Zavala-Mendez must be deemed not to be 'found in,' because he proceeded directly to the border authorities in the designated manner."

Ed. Note: I love the way Judge Kleinfeld writes. It's like having a conversation with a really intelligent person.

ALIENS - ILLEGAL RE-ENTRY - SURVEILLANCE AS RESTRAINT - JURY INSTRUCTION

United States v. Bello-Bahena (2005) F.3d , 05 C.D.O.S. 5148 (9th Cir. 6/15/05, 04-50013)

Evidence insufficient to convict for being a deported alien found in the U.S. (18 U.S.C. section 1326(a)). Physical presence in country is insufficient to convict for being "found in" the United States. Government also must prove that defendant "entered the United States free from official restraint at the time officials discovered or apprehended him." United States v. Ruiz-Lopez, 234 F.3d 445, 448 (9th Cir. 2000), as amended (2001). Burden is on government to establish lack of official restraint. United States v. Castellanos-Garcia, 270 F.3d 773, 775 (9th Cir. 2001). Official restraint includes constant governmental observation or surveillance from the moment of entry, and that those who are under such surveillance for the entire time they are present cannot be found to have entered the United States for purposes of section 1326. United States v. Vela-Robles, 397 F.3d 786, 788 (9th Cir. 2005). But person who evades government detection, even for a brief time, has legally entered the country free of official restraint. Here, rational jury could have found that first officer detected defendant at some point after he crossed the border, and not as he was crossing it. Note that first officer did not testify, and second officer said he had "no idea" when the first officer picked up the defendant on his night scope. However, court abused discretion in refusing to instruct that constant surveillance constitutes governmental restraint (see cases above), and because the evidence permitted an inference that he may have been under surveillance, defendant was entitled to have the jury instructed. Where there is at least "some foundation in the evidence" to support a defendant's theory of defense, a district court is required to give an instruction on that theory. See United States v. Washington, 819 F.2d 221, 225 (9th Cir. 1987) ("[A] defendant is entitled to an instruction concerning his theory of the case if the theory is legally sound and evidence in the case makes it applicable, even if that evidence is weak, insufficient, inconsistent, or of doubtful credibility." ). Reversed and remanded.

Ed. Note: when will trial judges learn: when in doubt, give the instruction!

ALIENS - SMUGGLING FOR FINANCIAL GAIN

United States v. Munoz (2005) F.3d , 05 C.D.O.S. 5103 (9th Cir. 6/14/05, 04-50086)

Pecuniary gain counts reversed for insufficient evidence, when government failed to prove that defendant had been paid for smuggling aliens across the border. Trial court erred in instructing that the government did not need to prove financial gain.

CIVIL RIGHTS - DELAYED DNA TESTING

Jimenez v. County of Los Angeles (2005) Cal.App.4th , 05 C.D.O.S. 5108 (Second Dist., 6/14/05, B175413)

Even though there is a Fourteenth Amendment substantive due process right to release within a reasonable time after law enforcement learns a detainee is innocent (Lee v. City of Los Angeles (9th Cir. 2001) 250 F.3d 668, 683; Pennington v. Hobson (S.D. Ind. 1989) 719 F.Supp. 760, 776), here the claim was that the police delayed DNA testing, and the court holds that there is no fundamental constitutional right to a "a speedy confirmation of the officers' probable cause determination by use of laboratory [DNA] testing."

DRUGS - SUFFICIENCY OF EVIDENCE OF WEIGHT

People v. Vega (2005) Cal.App.4th , 05 C.D.O.S. 5114 (Second Dist., 6/14/05, B171051)

Evidence was sufficient to support weight determination when technician, after obtaining the total gross weight of all 42 cocaine bricks, calculated the total weight by unwrapping and weighing eight representative-sized bricks and multiplying the bricks' average weight by 42. In any event, the evidence was uncontradicted.

EVIDENCE - CONSUMED IN TESTING

People v. Houston (2005) Cal.App.4th , 05 C.D.O.S. 5154 (First Dist., 6/15/05, A105198)

When "the prosecution finds it necessary to consume the evidence in order to test it, there is no due process violation. The prosecution must be allowed to investigate and prosecute crime, and due process does not require that it forego investigation in order to avoid destroying potentially exculpatory evidence." (People v. Griffin (1988) 46 Cal.3d 1011, 1021.) Here the DNA extracted from the consumed bullet was available for defense testing.

EVIDENCE - EXTRAMARITAL AFFAIRS

People v. Houston (2005) Cal.App.4th , 05 C.D.O.S. 5154 (First Dist., 6/15/05, A105198)

Evidence that defendant was involved in extramarital affairs admissible to show "deceit" when defendant put his credibility at issue. It was also relevant to show motive to kill wife. Evidence of an accused spouse's intimate relations with others is relevant to the state of his or her marital relationship with the victim spouse and, therefore, to motive. (See People v. Gosden (1936) 6 Cal.2d 14, 25.)

HEARSAY - CRAWFORD - VICTIM'S STATEMENT HARMLESS

People v. Houston (2005) Cal.App.4th , 05 C.D.O.S. 5154 (First Dist., 6/15/05, A105198)

First District does not reach question whether dead victim's statements to police and hospital personnel about prior beatings violated Crawford v. Washington (2004) 541 U.S. 36 because if finds them harmless error under Chapman.

TRIAL - SPECTATORS WEARING BUTTONS

People v. Houston (2005) Cal.App.4th , 05 C.D.O.S. 5154 (First Dist., 6/15/05, A105198)

Inherent prejudice caused by spectators wearing buttons and placards with the victim's photo in the courtroom "was minimal enough to be cured by the court's prompt admonitions to ignore the displays. Any actual prejudice was harmless beyond a reasonable doubt because of the overwhelming evidence of appellant's guilt." However, the court advised that "The better practice of any trial court is to order such buttons and placards removed from display in the courtroom promptly upon becoming aware of them in order to avoid further disruption."

Download 05-06-16-reasonable-doubts.mp3

June 14, 2005 Reasonable Doubts

ALIENS - RE-ENTRY AFTER DEPORTATION

United States v. Bahena-Cardenas (2005) F.3d , 05 C.D.O.S. 5063 (9th Cir. 6/13/05, 03-50479)

Evidence that defendant was found in a San Diego city that does not share a border with Mexico was sufficient to prove voluntary entry. Warrant of deportation was admissible to prove defendant left the country even after Crawford because it is nontestimonial. Contradictory evidence of alienage sufficient when jury resolved it in government's favor.

COUNSEL - INEFFECTIVE ASSISTANCE - FAILING TO OBJECT

People v. Anzalone (2005) Cal.App.4th , 05 C.D.O.S. 5086 (Fourth Dist., 6/13/05, D044138)

Failure to object to prosecutor's misstatement of the law, an argument that allowed the jury to find appellant guilty of multiple counts of attempted murder on an erroneous legal theory, was not reasonable tactical choice and constituted prejudicial ineffective assistance.

Use Note: ineffective assistance of counsel was raised on direct appeal and reached without comment. I sense an increasing willingness on the part of reviewing courts to reach the merits, knowing that a habeas petition is bound to follow.

DRUGS - INTENT TO SELL IN ANOTHER COUNTRY

United States v. Holler (2005) F.3d , 05 C.D.O.S. 5066 (9th Cir. 6/13/05, 03-50129)

Defendant was arrested in California for conspiracy to possess cocaine with the intent to distribute and attempted possession of cocaine with the intent to distribute. Where criminal acts are committed in the United States, fact that defendant intends to distribute contraband outside the United States does not divest court of jurisdiction. United States v. Gomez-Tostado, 597 F.2d 170, 172-173 (9th Cir. 1979).

HOMICIDE - ATTEMPTED - SHOOTING AT GROUP

People v. Anzalone (2005) Cal.App.4th , 05 C.D.O.S. 5086 (Fourth Dist., 6/13/05, D044138)

Error under People v. Bland (2002) 28 Cal.4th 313 to fail to sua sponte instruct on intent element in attempted murder, transferred intent or concurrent intent, when defendant fired two shots, one in the direction of the main victim, and one other at the other three victims. He was convicted of four counts of attempted murder. Prosecutor's argument concerning how jury could find defendant guilty of four counts when two shots were fired was legally incorrect. "The danger in the trial court not instructing on a legal concept relied on by the prosecution is that it totally leaves to the prosecutor the defining of that legal concept. In this case the prosecutor got it wrong .... Contrary to the prosecutor's argument, an attempted murder is not committed as to all persons in a group simply because a gunshot is fired indiscriminately at them. The prosecutor's argument incorrectly suggests that a defendant may be found guilty of the attempted murder of someone he does not intend to kill simply because the victim is in some undefined zone of danger. In fact, to be found guilty of attempted murder, the defendant must either have intended to kill a particular individual or individuals or the nature of his attack must be such that it is reasonable to infer that the defendant intended to kill everyone in a particular location as the means to some other end, e.g., killing some particular person."

JURY SELECTION - BATSON - "STRONG LIKELIHOOD" IS WRONG STANDARD

Johnson v. California (2005) 545 U.S. , 05 C.D.O.S. (U.S. Sup. Court, 6/13/05, 04-6964)

California Supreme Court is wrong in holding that Batson (Batson v. Kentucky, 476 U. S. 79 (1986)) requires objecting party to show a "strong likelihood" or "more likely than not" that the exercise of peremptory challenges was motivated by racial bias. The correct standard is whether it is a "reasonable inference." The phrases do not, as the state high court thought, mean the same thing. "The Batson framework is designed to produce actual answers to suspicions and inferences that discrimination may have infected the jury selection process."

Ed. Note: Thomas is the only dissenter. Wow!

Use Note: when making a Batson objection, drill this case into the judge. Judges have gotten very perfunctory when making Batson determinations, secure in the knowledge that the state high court will rubber-stamp their rulings. This is a wake-up call.

JURY SELECTION - BATSON - REVERSAL

Miller-El v. Dretke (2005) 545 U.S. , 05 C.D.O.S. (U.S. Sup. Court, 6/13/05, 03-9659)

Texas prosecutors used peremptory strikes against 10 qualified venire members. Defendant presented evidence to the trial court of the Dallas County's District Attorney's history of excluding Blacks from juries. The state trial judge, the state court of appeals, the federal district court, and the Fifth Circuit Court of Appeals found no problem. "After examining the record of Miller-El's extensive evidence of purposeful discrimination by the Dallas County District Attorney's Office before and during his trial, we found an appeal was in order, since the merits of the Batson claim were, at the least, debatable by jurists of reason. Miller-El v. Cockrell, 537 U. S. 322 (2003). After granting a certificate of appealability, the Fifth Circuit rejected Miller-El's Batson claim on the merits. 361 F. 3d 849 (2004). We again granted certiorari, 542 U. S. 936 (2004), and again we reverse."

In reaching its conclusion, the Court used not only the statistics offered by the defense, but also found "more powerful ... side-by-side comparisons of some black venire panelists who were struck and white panelists allowed to serve." It also considered "widely known evidence of the general policy of the Dallas County District Attorney's Office to exclude black venire members from juries at the time Miller-El's jury was selected." In addition, it considered the practice of "jury shuffling" (not done in California), and the different questions asked of Black and White jurors. The prosecutor gave a "graphic" description of the death penalty to Black jurors, and a "bland" one to White jurors. The Court found this was evidence that the prosecutors were trying to elicit hesitation to execute from the Blacks. The state also used "trickery" (in the Court's words), by telling White jurors of the statutory minimum sentence, but not Blacks. The Court also considered a manual the Dallas DA used, which advocated striking minorities.

Note Breyer's concurrence, suggesting that perhaps at the heart of the problem is the practice of peremptory challenges itself.

Thomas dissents, of course, but at least this time he's joined by Rehnquist and Scalia.

Ed. Note: I'm finding myself agreeing with Breyer. Maybe it's time to simply eliminate peremptory challenges.

MISCONDUCT - PROSECUTORIAL - VOUCHING

United States v. Weatherspoon (2005) F.3d , 05 C.D.O.S. 5068 (9th Cir. 6/13/05, 03-10551)

Prosecutorial misconduct requiring reversal occurred when Assistant U.S. Attorney vouched for his police officer witnesses and encouraged the jury to convict in order to alleviate social problems. Judge's curative admonition was "inadequate."

Ed. Note: the United States Attorney for Nevada sought modification because the court referred to the AUSA's conduct as "recidivist." The court replied: "we recognize the United States Attorney's sensitivity to the fact that the term's usage most familiar to lawyers is in connection with criminal repeat offenders, a connotation that was certainly not intended by the opinion. Accordingly we have substituted the phrase 'such repeat-offender conduct' for 'such recidivist conduct.'" My tip: watch what you ask for. It can get worse instead of better.

PRISONERS' RIGHTS - PLACEMENT AT HIGH SECURITY PRISONS

Wilkinson v. Austin (2005) 545 U.S. , 05 C.D.O.S. (U.S. Sup. Court, 6/13/05, 04-495)

Procedures used by state to determine who gets assigned to its "Supermax" prisons comports with due process. But at least the Court found that inmates have a "protected liberty interest" in placement decisions. However, this interest does not arise from the Fourteenth Amendment (Meachum v. Fano, 427 U. S. 215, 225 (1976)) but from state policies or regulations. (Sandin v. Conner, 515 U. S. 472 (1995).)

TRIAL - DUE PROCESS - INCONSISTENT THEORIES

Bradshaw v. Stumpf (2005) 545 U.S. , 05 C.D.O.S. (U.S. Sup. Court, 6/13/05, 04-637)

Prosecutor argued that Stumpf was the shooter during Stumpf's penalty phase trial (he had previously entered a guilty plea), then turned around and argued that a co-defendant was the shooter at the co-defendant's trial, which version was supported by the testimony of the third co-defendant. Because this issue was not properly presented to the high court (the defendant instead argued that his guilty plea was involuntary, which the Court rejected), the matter is remanded to the Court of Appeals to consider the effect of the prosecutor's inconsistent theories on the death sentence.

Ed. Note: much ado about nothing.

Download 05-06-14-reasonable-doubts.mp3

June 13, 2005 Reasonable Doubts

ALIEN SMUGGLING - PUBLIC AUTHORITY DEFENSE

United States v. Burt (2005) F.3d , 05 C.D.O.S. 4866 (9th Cir. 6/8/05, 04-10240)

Defendant was entitled to instructions on the public authority defense when she contended she was working for the government, and there was some evidence to support the defense.

APPEALS - USING HYPERBOLE

Truong v. Orange County Sheriff's Department (2005) Cal.App.4th , 05 C.D.O.S. 4875 (Fourth Dist., 6/8/05, G034294)

For those tempted to use hyperbole in our appellate arguments: "Truong's analogy of her case to Rosa Parks and her assertion that following Heck gives 'carte blanche to beat to a bloody pulp, with financial impunity, any arrestee, provided they obtained a conviction for the conduct which preceded the beating' is pure hyperbole. Heck limits a narrow class of civil rights actions when allowing the action to proceed would necessarily challenge the legitimacy of the undisturbed conviction. It applies only in cases where the plaintiff has been convicted of conduct relating to the arrest, such as refusing a lawful order or resisting arrest. Asserting that Truong was somehow analogous to Rosa Parks is both factually inaccurate and diminishes the legacy of those who risked themselves to fight for civil rights in this country. It does not impress this court."

BLAKELY/BOOKER - LIMITED REMAND

United States v. Ameline (2005) F.3d , 05 C.D.O.S. 4800 (9th Cir. 6/7/05, 02-30326)

When faced with unpreserved Booker error that may have affected a defendant's substantial rights, and the record is insufficiently clear to conduct a complete plain error analysis, limited remand to the district court is appropriate for the purpose of ascertaining whether the sentence imposed would have been materially different had the district court known that the sentencing guidelines were advisory. If the district court responds affirmatively, the error was prejudicial and failure to notice the error would seriously affect the integrity, fairness and public reputation of the proceedings. The original sentence will be vacated by the district court, and the district court will resentence the defendant. If the district court responds in the negative, the original sentence will stand, subject to appellate review for reasonableness.

CIVIL RIGHTS - EFFECT OF CONVICTION

Truong v. Orange County Sheriff's Department (2005) Cal.App.4th , 05 C.D.O.S. 4875 (Fourth Dist., 6/8/05, G034294)

Civil rights claim based on police misconduct barred because plaintiff entered guilty plea to resisting a lawful order, because the civil rights action necessarily challenges the validity of her conviction. The principle that civil rights actions cannot call into question undisturbed convictions was established by the United States Supreme Court in Heck v. Humphrey (1994) 512 U.S. 477.

CIVIL RIGHTS - FAVORABLE TERMINATION RULE

Huftile v. Miccio-Fonseca (2005) F.3d , 05 C.D.O.S. 4977 (9th Cir. 6/10/05, 03-16734)

Favorable termination rule of Heck v. Humphrey, 512 U.S. 477 (1994) (underlying conviction must have been "reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court's issuance of a writ of habeas corpus") applies to civil commitments under California's Sexually Violent Predators Act, and therefore committee could not bring civil rights action against doctor who evaluated him for commitment.

COUNSEL - APPOINTED - NO RIGHT ON POST-APPEAL MOTION

United States v. Harrington (2005) F.3d , 05 C.D.O.S. 4753 (9th Cir. 6/6/05, 03-30413)

Federal prisoner who filed a "Motion for New Trial Based on Newly Discovered Evidence" after unsuccessfully pursuing a direct appeal and a habeas petition was not entitled to appointed counsel. C.f., Menefield v. Borg, 881 F.2d 696 (9th Cir. 1989) (new trial motion before appeal is "critical stage" requiring appointed counsel). Follows Pennsylvania v. Finley, 481 U.S. 551, 555 (1987) (right to counsel "extends to the first appeal of right, and no further").

COUNSEL - INEFFECTIVE ASSISTANCE - FAILING TO OBJECT

People v. Lopez (2005) Cal.App.4th , 05 C.D.O.S. 4961 (Fourth Dist., 6/9/05, D044211)

Counsel rendered ineffective assistance by failing to object to evidence that each of the four defense witnesses had been arrested and that three had committed previous misdemeanor batteries. The DA sneaked in the evidence under the guise of exposing bias, but evidence of arrests is more prejudicial than probative. "... [N]one of the arrest evidence should have been admitted, due to the danger that it would be employed exactly as the prosecutor employed it-not simply to show that the witnesses might be biased against the police, but that each of them has an untrustworthy and criminal character." ... "A criminal defense attorney should be on guard against the improper impeachment of his or her own witnesses. (People v. Marquez (1986) 188 Cal.App.3d 363, 368.) The Attorney General suggests no tactical reason for defense counsel to withhold objection to evidence of mere arrests or misdemeanor conduct not involving moral turpitude, and we cannot imagine one."

Use Note: ineffective assistance of counsel was raised here on the direct appeal.

COUNSEL - INEFFECTIVE ASSISTANCE - REFUSING TO FILE NOTICE OF APPEAL EVEN WHEN APPEAL RIGHTS WAIVED

United States v. Sandoval-Lopez (2005) F.3d , 05 C.D.O.S. 4754 (9th Cir. 6/6/05, 03-35594)

To determining whether a failure to file a notice of appeal constitutes ineffective assistance of counsel the court asks (1) whether counsel consulted with the defendant about an appeal; and (2) if not, was the failure to consult deficient performance. In determining deficient performance, the question is whether there is reason to think either (1) that a rational defendant would want to appeal (for example, because there are nonfrivolous grounds for appeal), or (2) that this particular defendant reasonably demonstrated to counsel that he was interested in appealing. (Roe v. Flores-Ortega, 528 U.S. 470 (2000).) Applying the Flores-Ortega rule would result in the defendant losing, but here the defendant claimed that he asked his attorney to file the notice, and his attorney refused. Because the district court refused to hold an evidentiary hearing, the reviewing court had to assume that this was true, and therefore the habeas denial had to be remanded for a hearing, because "a lawyer who disregards specific instructions from the defendant to file a notice of appeal acts in a manner that is professionally unreasonable." (Flores-Ortega, 528 U.S. at 477.)

Use Note: the lesson here is that if your client asks that you file a notice of appeal, you file it, no matter what the circumstances are. Here, the defendant got a very good deal, and waived his right to appeal, but the attorney still had to file if the client wanted it. Of course, during the evidentiary hearing it may turn out that petitioner is not telling the truth. The best course may be to have the client sign a document saying he has not asked you to file a notice.

COUNSEL - INVOCATION - "FUCK YOU, I WANT TO TALK TO MY LAWYER"

People v. Lopez (2005) Cal.App.4th , 05 C.D.O.S. 4961 (Sixth Dist.., 6/9/05, H026476)

"... Defendant's invocation of his right to counsel, however colloquially phrased ('Fuck you. I want to talk to my lawyer'), should not have been construed as an adoptive admission." Prosecution cannot use a person's refusal to answer questions or his or her invocation of the right to remain silent or the right to counsel. (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 65. Doctrine of adoptive admissions does not apply. (People v. Jennings (2003) 112 Cal.App.4th 459, 472-473.)

Ed. Note: defendant appears to have used the word as a sort of adjective preceding nearly every noun.

COUNSEL - JURISDICTION OVER STATE BAR ADMISSION

Mothershed v. Justices of the Supreme Court (2005) F.3d , 05 C.D.O.S. 4749 (9th Cir. 6/6/05)

A disbarred attorney may not collaterally attack his state bar disciplinary proceedings in federal court (lower federal courts are without subject matter jurisdiction to review state court decisions, and state court litigants may therefore only obtain federal review by filing a petition for a writ of certiorari in the Supreme Court of the United States [Rooker v. Fid. Trust Co., 263 U.S. 413, 416 (1923); D.C. Court of Appeals v. Feldman, 460 U.S. 462, 486-87 (1983); Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. ___, 125 S. Ct. 1517, 1521-22 (2005)].) However, the doctrine does not prevent a plaintiff from presenting a generally applicable legal challenge to a state bar rule in federal court, even if that rule has previously been applied against him in state court litigation. Here, two of plaintiff's claims were barred, but the third, which argued that Arizona's bar admission requirements violate Arizonans' First Amendment right to consult an attorney of their choosing and contravene both the Sherman Antitrust Act and the Arizona Uniform State Antitrust Act, could be considered by a lower federal court. But plaintiff loses on the merits. No anti-trust violation, and a reasonable time, place and manner restriction on speech.

DISCOVERY - BRADY VIOLATION HARMLESS

People v. Salazar (2005) Cal.4th , 05 C.D.O.S. 4760 (Cal. Supreme Court, 6/6/05, S119066)

Even if LA District Attorney withheld evidence impeaching the forensic pathologist who testified at defendant's shaken-baby murder trial (Dr. James Ribe), it is harmless because the evidence was not "material" within meaning of Brady v. Maryland (1963) 373 U.S. 83. There are three components of a true Brady violation: The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued." (Strickler v. Greene (1999) 527 U.S. 263, 281-282, fn. omitted.) Prejudice, focuses on "the materiality of the evidence to the issue of guilt and innocence." (United States v. Agurs (1976) 427 U.S. 97, 112, fn. 20; accord, U.S. v. Fallon (7th Cir. 2003) 348 F.3d 248, 252.) The impeaching evidence (that the pathologist had changed his opinion in a previous case) was known at the time of the trial, and Ribe was questioned about it. What the DA allegedly withheld was a report of a follow-up investigation in the previous case, and a box of transcripts of Ribe's testimony in other cases.

DRUGS - FEDERAL PROHIBITION ON MARIJUANA

Gonzales v. Raich (2005) U.S. , 05 C.D.O.S. 4725 (U.S. Sup. Court, 6/6/05, 03-1454)

Once again showing how out of touch with reality the Supreme Court is (or at least a majority), Stevens, Kennedy, Souter, Ginsburg (!), Breyer (!) and Scalia (concurring) hold that the Commerce Clause (Art. I, sec. 8 of the federal constitution) vests power in Congress to prohibit the local cultivation and use of marijuana that otherwise complies with California law. Astonishingly, O'Connor, Rehnquist and Thomas dissent.

The majority admits that "... Raich's physician believes that forgoing cannabis treatments would certainly cause Raich excruciating pain and could very well prove fatal." But do they care? Not a whit. "Congress can regulate purely intrastate activity that is not itself 'commercial,' in that it is not produced for sale, if it concludes that failure to regulate that class of activity would undercut the regulation of the interstate market in that commodity."

The majority ends by callously suggesting that Congress (a Republican Congress!) is where petitioners should go.

FORFEITURE - CRAB

United States v. 144,744 Pounds of Blue King Crab (2005) F.3d , 05 C.D.O.S. 4919 (9th Cir. 6/9/05, 03-36006)

King crab taken in violation of Russian fishing regulations is subject to forfeiture under the Lacey Act, 16 U.S.C. section 3374(a), on a strict liability basis. Crab importer may not assert "innocent owner defense" in forfeiture proceedings because under 18 U.S.C. section 983, defense cannot be asserted when the property to be forfeited is "contraband or other property that it is illegal to possess."

GUILTY PLEAS - BARGAIN - DENIAL OF PAROLE

In re Honesto (2005) Cal.App.4th , 05 C.D.O.S. 4993 (Sixth Dist., 6/10/05, H027337)

Denial of parole was not a violation of plea bargain when defendant agreed to punishment of 17 years to life when pleading to second degree murder.

GUILTY PLEAS - COUNSEL'S ERRONEOUS ADVICE AS GROUNDS FOR WITHDRAWING BEFORE SENTENCING

United States v. Davis (2005) F.3d , 05 C.D.O.S. 4921 (9th Cir. 6/9/05, 04-50030)

Trial court has discretion to permit defendant to withdraw guilty plea prior to sentencing when court finds defense counsel "grossly mischaracterized" possible sentence (told defendant penalty was probation to 8 years, when there was "little, if any, possibility" that he would receive probation), but also finds that mischaracterization did not actually prejudice defendant (he did not allege that he would not have entered the plea if he had known the truth), as is required to invalidate a plea post-sentence. Hill v. Lockhart, 474 U.S. 52, 59 (1985).

Use Note: so now the rule is, if moving to withdraw the plea in the trial court before sentencing, prejudice need not be shown (but it's better to show it if you can). After sentencing, on appeal or habeas, prejudice must be shown.

HABEAS CORPUS - FEDERAL - NO TOLLING DUE BY STATE COURT DECISION

Shannon v. Newland (2005) F.3d , 05 C.D.O.S. 4860 (9th Cir. 6/8/05, 03-16833)

Federal petition is not timely when filed long after conviction but shortly after state supreme court decision potentially favorable to federal constitutional claim.

MISCONDUCT - PROSECUTORIAL - INVESTIGATORY ROLE

Genzler v. Longanbach (2005) F.3d , 05 C.D.O.S. 4793 (9th Cir. 6/7/05, 02-56572)

After withdrawing previous opinion and reissuing it, panel holds that Los Angeles Deputy District Attorney Peter Longanbach and Investigator Jeffrey O'Brien are not entitled to absolute official immunity against civil rights suit, because there is issue of fact about whether they were engaged in advocacy intimately associated with the judicial process when they interviewed a key witness. Prosecutor is protected by absolute immunity "when performing the traditional functions of an advocate." Kalina v. Fletcher, 522 U.S. 118, 131 (1997). However, "the actions of a prosecutor are not absolutely immune merely because they are performed by a prosecutor." Buckley v. Fitzimmons, 509 U.S. 259, 273 (1993). Prosecutorial immunity depends on "the nature of the function performed, not the identity of the actor who performed it." Kalina, 522 U.S. 118 at 127 (quoting Forrester v. White, 484 U.S. 219, 229 (1988)). Prosecutors are entitled to qualified immunity, rather than absolute immunity, when they perform administrative functions, or "investigative functions normally performed by a detective or police officer." Id. at 126. See also Burns v. Reed, 500 U.S. 478, 494-96 (1991). Prosecutor does not have absolute immunity for providing legal advice to police that probable cause exists to arrest a suspect, Burns, 500 U.S. at 491, or for personally attesting to the truth of evidence in support of charging documents, Kalina, 522 U.S. at 130.

Ed. Note: keep in mind that in reviewing summary judgment rulings, the appellate court takes the facts as set forth by the plaintiff, so none of these allegations have actually been proven.

SEARCH & SEIZURE - RANDOM SELECTION OF AIRLINE PASSENGER FOR SCAN NOT 4TH AMENDMENT VIOLATION

United States v. Marquez (2005) F.3d , 05 C.D.O.S. 4815 (9th Cir. 6/7/05, 04-30243)

Random additional screening procedure (scan with handheld wand) is reasonable under Fourth Amendment and evidence seized (drugs) is not suppressible. Airport screenings are administrative searches and reasonable if (1) no more extensive or intensive than necessary, in light of current technology, to detect weapons or explosives; (2) confined in good faith to that purpose; and (3) passengers may avoid the search by electing not to fly. Torbet v. United Airlines, Inc., 298 F.3d 1087, 1089.

SENTENCING - ONE STRIKE - CONSECUTIVE SENTENCES NOT MANDATORY

People v. Rodriguez (2005) Cal.App.4th , 05 C.D.O.S 4831 (Fourth Dist., 6/7/05, E030401)

Trial court has discretion to sentence concurrently under one-strike provisions of Penal Code section 667.61.

SEX OFFENSES - PROCUREMENT AND SEXUAL ABUSE

People v. Bautista (2005) Cal.App.4th , 05 C.D.O.S. 4938 (First Dist., 6/9/05, A105375)

Defendant could not be convicted both of procurement and continuous sexual abuse of same child for same time period because Penal Code section 288.5 specifically prohibits any other felony sex offense from being charged together with 288.5, and Penal Code section 266j is such an offense. One of the procurement counts was also barred by the statute of limitations, an argument that may be made even following a guilty plea.

SEXUALLY VIOLENT PREDATORS - STANDING TO CHALLENGE COMMITMENT IN FEDERAL COURT

Jackson v. CA Dept. of Mental Health (2005) F.3d , 05 C.D.O.S. 4849 (9th Cir. 6/8/05, 03-17068)

Petitioner did not have standing to challenge Sexually Violent Predator commitment because he filed the federal petition after commitment expired and there were no lingering collateral consequences.

Download 05-06-13-reasonable-doubts.mp3

June 6, 2005 Reasonable Doubts

ARSON - VICTIMS' NEGLIGENCE NOT SUPERSEDING

People v. Brady (2005) Cal.App.4th , 05 C.D.O.S. 4701 (First Dist., 6/3/05, A102620)

Defendant properly convicted of recklessly setting a fire that resulted in death of two firefighter pilots, and whether one of them was negligent was not a superseding cause so as to break the chain of causation. "... [W]hen recklessly starting the forest fire, [defendant] could reasonably anticipate that aircraft would be summoned to extinguish the fire and that a fatal collision might result."

BLAKELY - UPPER TERM - HARMLESS IF ERROR

People v. Taulton (2005) Cal.App.4th , 05 C.D.O.S. 4616 (Fourth Dist., 6/1/05, G033673)

Upper term sentence based on a finding "that the defendant has a very substantial criminal record . . . ", even if error under Blakely v. Washington (2004) 542 U.S. __, 124 S.Ct. 2531, 159 L.Ed.2d 403, was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24.

DISCOVERY - PITCHESS - SUFFICIENCY OF DECLARATION

Warrick v. Superior Court (City of Los Angeles Police Department) Cal.4th , 05 C.D.O.S. 4654 (Cal. Supreme Court, 6/2/05, S115738)

"We hold that to obtain in-chambers review a defendant need only demonstrate that the scenario of alleged officer misconduct could or might have occurred." In support of the motion, defense counsel filed a declaration with the defendant's version of the facts, executed by counsel. The City Attorney argued that this was nothing more than a denial and that he had to provide a "believable" scenario. The trial court bought this.

Use Note: this is all you need to know about this case: the test is whether the scenario described in the declaration "could or might have occurred." Yes!!

DRUGS - ENHANCEMENT BASED ON PRIOR ATTEMPT

People v. Reed (2005) Cal.App.4th , 05 C.D.O.S. 4658 (Third Dist., 6/2/05, C047871)

Enhancement for prior drug conviction unauthorized because attempted possession of controlled substance for sale is not included in Health & Safety Code section 11370.2, subdivision (a).

GUNS - SCHOOL ZONE PROHIBITION - SIDEWALK IN FRONT OF HOUSE

People v. Tapia (2005) Cal.App.4th , 05 C.D.O.S. 4601 (Second Dist., 6/1/05, B168657)

A sidewalk on an easement of way granted to a public entity does not qualify as private property within the meaning of Penal Code section 626.9, subdivision (c)(1) and defendant could properly be convicted of possessing a firearm in public within 1,000 feet of a school.

HEARSAY - PRIOR CONVICTION RECORDS NOT

People v. Taulton (2005) Cal.App.4th , 05 C.D.O.S. 4616 (Fourth Dist., 6/1/05, G033673)

Findings that prior conviction true based on documents in "969b" packet ("records or copies of records of any state penitentiary, reformatory, county jail or city jail, or federal penitentiary in which [defendant] has been imprisoned") did not violate defendant's confrontation rights under Sixth Amendment as interpreted in Crawford v. Washington (2004) 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177. Records are not "testimonial" because they were not obtained for the purpose of potentially using them in a criminal trial or determining if a criminal charge should issue, disagreeing with People v. Cervantes (2004) 118 Cal.App.4th 162, which focused on the foreseeability of the potential use of a statement.

HOMICIDE - INSUFFICIENT EVIDENCE - FEDERAL HABEAS REVIEW

Juan H. v. Allen (2005) F.3d , 05 C.D.O.S. 4625 (9th Cir. 6/2/05, 04-15562)

Sustained petition for first degree murder and attempted first degree murder not supported by evidence beyond a reasonable doubt, and violated Fourteenth Amendment. Evidence showed that defendant, a gang member, stood next to his brother when his brother shot at two rival gang members, killing one. "During the shooting, Juan H. did not say anything, make any gestures, or otherwise encourage Merendon. .... The record contains manifestly insufficient evidence to support the necessary conclusions that Juan H. knew that Merendon planned to commit the first-degree murders of Ramirez and Magdelano, and that Juan H. acted in a way intended to encourage or facilitate these killings. Viewed in a light most favorable to the prosecution, the circumstantial evidence in this case does not permit any reasonable factfinder to sustain the delinquency petition of Juan H. on the charges of aiding and abetting first-degree murder and attempted first-degree murder, as those crimes are defined by California law."

HOMICIDE - SECOND-DEGREE - BAD INSTRUCTIONS

People v. Calderon (2005) Cal.App.4th , 05 C.D.O.S. 4710 (Fifth Dist., 6/3/05, F044054)

Defendant improperly convicted of second-degree murder on implied malice and felony murder theories because trial court erroneously instructed that Vehicle Code section 2800.2 (evading police officer while driving with willful and wanton disregard for safety of persons or property) was inherently dangerous felony and could serve as predicate offense for second degree felony murder conviction. This was wrong under People v. Howard (2005) 34 Cal.4th 1129, 1138-1139, and the error was not harmless because reviewing court could not determine beyond a reasonable doubt that jury did not rely upon the legally incorrect theory. Mental state for violating Vehicle Code section 2800.2 may include disregard for property or safety of persons, whereas mental state for implied malice murder requires disregard for life. There is a difference between a disregard for the safety of others and a disregard for their lives.

IMMIGRATION - RESTORATION OF JURISDICTION OVER REMOVAL ORDERS

Fernandez-Ruiz v. Gonzales (2005) F.3d , 05 C.D.O.S. 4591 (9th Cir. 6/1/05, 03-74533)

REAL ID Act of 2005, Pub. L. No. 109-13, 119 Stat. 231 (U.S.C. section 1252 et seq.) restored court's jurisdiction to review constitutional claims or questions of law presented in petitions for review of removal (deportation) orders. The amendment restoring jurisdiction is retroactive. But although the court concluded it had jurisdiction, it concluded the petitioner was removable and ineligible for relief.

SEARCH & SEIZURE - OPENED DUFFEL BAG IN COMMON LAUNDRY ROOM

United States v. Fay (2005) F.3d , 05 C.D.O.S. 4697 (9th Cir. 6/3/05, 04-10401)

Defendant did not have reasonable expectation of privacy in opened duffel bag stored on shelf in laundry room shared with girlfriend. C.f., United States v. Davis, 332 F.3d 1163 (9th Cir. 2003); United States v. Fultz, 146 F.3d 1102 (9th Cir. 1998); and United States v. Welch, 4 F.3d 761 (9th Cir. 1993) [property stored in host's home protected]. Noonan points out that reasonable expectation of privacy is not really the issue: the homeowner (the girlfriend) told the police there was a gun in the bag and she wanted it out.

SEXUALLY VIOLENT PREDATORS - TEXAS COURT DOCUMENTS

People v. Whitney (2005) Cal.App.4th , 05 C.D.O.S. 4660 (Fifth Dist., 6/2/05, F045372)

Texas convictions under Texas Penal Code section 21.11 (a)(1) constituted "sexually violent offense" convictions.

SPEEDY TRIAL - WITHDRAWAL OF GENERAL TIME WAIVER

Baustert v. Superior Court (People) Cal.App.4th , 05 C.D.O.S. 4605 (Fourth Dist., 6/1/05, D045823)

Defendant who withdrew general time waiver entered under Penal Code section 1382(a)(3)(A) had to be brought to trial within 30 days (in misdemeanor case) of the withdrawal. There is no 10-day grace period after the 30-day period following the withdrawal of a general time waiver, as there is after the 30-day period following the withdrawal of a regular waiver. No good cause for the continuance existed, even though the police officer was going on vacation, because the People voluntarily released and re-served her for a date after the time period. Penal Code section 1050, subdivision (g)(1), which states that prior commitments of witnesses must be considered when determining good cause for a continuance, are only directory when determining good cause for a continuance past the time periods set forth in Penal Code section 1382.

Use Note: excellent decision. We used to think that general time waivers were bad, but under this authority they are actually better than ordinary time waivers. The only difference seems to be that we have to notify the parties before withdrawing a general time waiver, but there's nothing in the statute about what form that notice must take. This opinion also clarifies that good cause to continue under Penal Code section 1050 is not the same as good cause for Penal Code section 1382.

WEAPONS - SELF-DEFENSE BY EX-FELON WHEN 12021 NOT CHARGED

People v. Rhodes (2005) Cal.App.4th , 05 C.D.O.S. 4708 (Fourth Dist., 6/3/05, G033119)

Trial court erred in giving CALJIC 12.50 (use of firearm by convicted felon) and refusing to give CALJIC 5.50 (assailed person need not retreat). Defendant was not charged with violating Penal Code section 12021 (ex-felon with gun) even though he could have been, and CALJIC 12.50 is a specific instruction to be given only when a defendant is so charged. Because 12.50 was not applicable, its Use Note that says 5.50 should not be given was also inapplicable. The facts supported the instruction and it had to be given. Error prejudicial because DA argued that defendant did not have a right to stand his ground.

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May 31, 2005 Reasonable Doubts

ADMISSIONS - JOINT INTERVIEW

People v. Castille (2005) Cal.App.4th , 05 C.D.O.S. 4412 (First Dist., 5/25/05, A089623)

After remand from U.S. Supreme Court to reconsider its first decision in light of Crawford v. Washington (2004) 541 U.S. 36, First District sticks to its guns and holds that tape recording of joint interview of defendants was properly admitted against each defendant under statements of a party and adoptive admissions hearsay exceptions. (Evidence Code sections 1220 and 1221; People v. Combs (2004) 34 Cal.4th 821.)

APPEALS - FEDERAL - VOLUNTARY ABANDONMENT AND ATTEMPT TO REINSTATE

United States v. Arevalo (2005) F.3d , 05 C.D.O.S. xx (9th Cir. 5/26/05, 02-50289)

You know the defendant is going to lose when the court lists his aka ("Psycho") in the title of the case. Here, the defendant voluntarily dismissed his appeal and then attempted to reinstate it seven months later. The panel found it had no jurisdiction to consider the appeal. Federal Rules of Appellate Procedure 4(b) require that appeal be filed within 10 days of judgment or order being appealed. Dismissing appeal prevents reinstatement. Distinguishes Williams v. Boeing (9th Cir. 1982) 681 F.2d 615, where appellant's counsel showed "lack of understanding" of appellate procedure.

DEFENSES - IMPERFECT DEFENSE OF OTHERS

People v. Randle (2005) Cal.4th , 05 C.D.O.S. xx, (Cal. Supreme Court, 5/26/05, S117370)

One who kills in actual but unreasonable belief he must protect another person from imminent danger of death or great bodily injury is guilty of voluntary manslaughter, and not murder, because he lacks the malice required for murder. This is known as the doctrine of imperfect defense of others, and California now recognizes it.

DEFENSES - IMPERFECT SELF-DEFENSE - EFFECT OF EXCLUSION OF WITNESSES

People v. Wright (2005) Cal.4th , 05 C.D.O.S. xx, (Cal. Supreme Court, 5/26/05, S119067)

Trial court's exclusion of additional evidence supporting imperfect self-defense (see In re Christian S. (1994) 7 Cal.4th 768) was not prejudicial. The evidence excluded was the testimony of the witnesses on whose statements the expert witness had relied to make his diagnosis of psychotic disorder with delusions. Note that although ordinarily statements upon which an expert relies are not themselves admitted for the truth, here the court did not give a limiting instruction and the DA did not object to the statements coming in through the expert or challenge their veracity.

DNA COLLECTION - EFFECT OF REDUCTION TO MISDEMEANOR

Coffey v. Superior Court (People) Cal.App.4th , 05 C.D.O.S. 4408 (First Dist., 5/25/05, A108693)

Reduction of wobbler to misdemeanor did not prevent collection of DNA sample under Penal Code section 295 et seq. (formerly 296). Note that the statute now provides that collection is permitted when a defendant is convicted or pleads guilty or no-contest to any felony offense. There is a provision for expungement of the records but no relief by writ review. But here defendant's clever counsel (Chris Gauger of the San Francisco Public Defender's Office) sought review on the grounds that the unlawful seizure violated Fourth Amendment rights. First District assumed for purposes of this case that the statute could not preclude a constitutional challenge but denied the writ on the merits. It construed the term "convicted" to mean a guilty plea. (See People v. Banks (1959) 53 Cal.2d 370.)

HAZARDOUS DEVICES - ROPES OVER HELICOPTER LANDING FIELD

United States v. Wyatt (2005) F.3d , 05 C.D.O.S. xx (9th Cir. 5/26/05, 04-30316)

18 U.S.C. § 1864(a), which in part prohibits the use of hazardous or injurious devices on federal land with the intent to obstruct or harass the harvesting of timber, is not unconstitutionally vague as applied here to visible and unmodified ropes strung above a proposed helicopter landing site.

OBSTRUCTION OF JUSTICE - "CORRUPT PERSUASION"

Arthur Andersen LLP v. United States (2005) U.S. , 05 C.D.O.S. 4548 (U.S. Sup. Court, 5/31/05, 04-368)

In a unanimous opinion authored by Rehnquist, Court holds that jury instructions failed to convey elements of "corrupt persuasion" conviction under 18 U.S.C. section 1512(b) (knowing use of corrupt persuasion with intent to cause person to withhold or alter documents for use in official proceeding). Arthur Andersen's "crime" consisted of informing its employees to follow established document retention policies. The Court notes that "Indeed, it is striking how little culpability the instructions required." In fact, one of the instructions said that "even if [petitioner] honestly and sincerely believed that its conduct was lawful, you may find [petitioner] guilty."

Use Note: this is a perfect example of my personal belief that the government's power to indict is the power to destroy. The government does not even have to bother providing proper jury instructions. In fact, it may even urge incorrect instructions, as it did here. All it had to do is bring the charges and Arthur Andersen is no more. We have a right to expect more from our prosecutors and our courts.

PICKETING - ATTORNEY'S HOUSE

Tory v. Cochran (2005) U.S. , 05 C.D.O.S. 4556 (U.S. Sup. Court, 5/31/05, 03-1488)

Majority (with Thomas and Scalia dissenting) holds that a continuing injunction as a remedy in a defamation action violates the First Amendment as prior restraint when target of picketing has died.

PRISONERS' RIGHTS - RELIGIOUS FREEDOM

Cutter v. Wilkinson (2005) U.S. , 05 C.D.O.S. 4551 (U.S. Sup. Court, 5/31/05, 03-9877)

Justice Ginsburg, speaking for a unanimous court (Thomas concurring) holds that the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), which requires prisons to allow inmates to practice their religions (with limitations for security) does not improperly advance religion so as to violate the First Amendment's Establishment Clause.

RESTITUTION - COST OF HEALING CEREMONIES

People v. Keichler (2005) Cal.App.4th , 05 C.D.O.S. xx (Third Dist., 5/27/05, C047014)

Restitution to victims may include the cost of traditional Hmong healing ceremonies (which included cows, pig, and chickens) and herbal medicines. This was not an insubstantial amount: $3,119.

SEARCH & SEIZURE - CONSENT - OPENING DOOR WHILE IN BED

United States v. Quaempts (2005) F.3d , 05 C.D.O.S. 4566 (9th Cir. 5/31/05, 03-30471)

You know the defendant is going to win when the opinion begins: "[defendant's] trailer home was so small that he could open the front door while lying in his bed. His doing so on one unfortunate occasion, in response to the knock of Yakima Nation police officers, resulted in his warrantless arrest for sexual assault." The police needed a warrant before arresting defendant in his home. He was not on the threshhold (as in United States v. Vaneaton, 49 F.3d 1423 (9th Cir. 1995) and United States v. Santana, 427 U.S. 38, 42 (1976)) but in his bed. In other words, he was inside the house.

SEARCH & SEIZURE - DETENTION BASED ON PHONE CALL

Lowry v. Gutierrez (2005) Cal.App.4th , 05 C.D.O.S. xx (Second Dist., 5/26/05, B177605)

Admitting it is a "close call," Second District holds that contents of a call to police from an anonymous cellphone user gave a patrol officer reasonable cause to briefly stop a motorist's vehicle for purposes of investigating reported erratic driving. Call reported reckless driving, gave license number and gender of driver. When cop saw car 4 or 5 minutes later, it was traveling at safe speed and violating no laws.

Use Note: the California courts seem intent on gutting the U.S. Supreme Court's holding in Florida v. J.L. (2000) 529 U.S. 266 (anonymous tip a person is carrying a gun is not sufficient to justify stopping and frisking that person).

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