APPEALS - FAILURE TO DEMUR NO BAR TO CONSIDERATION OF ISSUE
People v. Lee (2006) Cal.App.4th , 06 C.D.O.S. 1186 (Fifth Dist., 2/8/06, F046238)
Even though defense counsel probably should have demurred to information, failure to do so does not preclude challenge. Court notes that in any even it would have reached the merits by way of ineffective assistance claim.
DRUGS - FURNISHING TO PRISON INMATE
People v. Lee (2006) Cal.App.4th , 06 C.D.O.S. 1186 (Fifth Dist., 2/8/06, F046238)
Prison inmate could be convicted of conspiring to violate Penal Code section 4573.9 (furnishing drugs to prison inmate). Note that he could not commit the substantive offense, since he was not a person "other than a person held in custody."
FINES - RESTITUTION FINES - MULTIPLE FINES FOR MULTIPLE OFFENSES
People v. Le (2006) Cal.App.4th , 06 C.D.O.S. 1313 (Sixth Dist., 2/13/06, H028821)
Because a restitution fine is "punishment" it is subject to Penal Code section 654's prohibition on multiple punishment, and therefore court erred in levying two fines, one of which stemmed from a sentence that should have been stayed. Defense counsel was ineffective in failing to object, and therefore court does not find waiver.
Ed. Note: this is a Bamattre-Manoukian decision, folks! (If you don't know about this justice, check out the Mercury News' January 26, 2006 story, "The Toughest Court's Toughest Justice.")
FORFEITURE - FEDERAL
United States v. Rutledge (2006) F.3d , 06 C.D.O.S. 1325 (9th Cir. 2/14/06, 05-10060)
Nonprofit corporation's assets would not be subject to criminal forfeiture if defendant (who allegedly controlled the corporation) were to be convicted, because they were not "proceeds" that were "obtained" by the defendant as a result of his crimes, therefore preliminary injunction seizing assets was improperly granted.
HOMICIDE - SHAKEN BABY - INSUFFICIENT EVIDENCE
Smith v. Mitchell (2006) F.3d , 06 C.D.O.S. 1203 (9th Cir. 2/9/06, 04-55831)
"[N]o rational trier of fact could have found beyond a reasonable doubt" that petitioner caused child's death, and state court's affirmance of conviction constituted an unreasonable application of Jackson v. Virginia, 443 U.S. 307, 319 (1979), which established the standard for constitutional sufficiency of the evidence.
This is an extraordinary case, in which the Ninth Circuit panel basically re-weighs the evidence, something one rarely sees at this level of review. On the other hand, it is pretty clear that the Los Angeles District Attorney wildly over-reached in convicting this grandmother of assault resulting in death and his inexperienced experts engaged in fantastical thinking in finding shaken baby syndrome with no evidence of damage to the child brain stem.
JURISDICTION - FEDERAL HOBBS ACT PROSECUTION
United States v. Lynch (2006) F.3d , 06 C.D.O.S. 1290 (9th Cir. 2/10/06, 02-30216)
Jurisdiction may be shown for a Hobbs Act prosecution of an individual by showing either that the crime had a direct effect or an indirect effect on interstate commerce. (United States v. Lynch, 367 F.3d 1148, 1154 (9th Cir. 2004).)
MENTALLY DISORDERED OFFENDERS - LATE-FILED PETITION
People v. Allen (2006) Cal.App.4th , 06 C.D.O.S. 1265 (Sixth Dist., 2/9/06, H027835)
Statutory requirement that petition to extend commitment be filed prior to the termination of an MDO commitment is a mandatory requirement with the consequence of dismissal for its violation. "As this requirement was indisputably violated here over Allen's repeated objections, we are compelled to reverse the commitment order with directions to dismiss the petition."
SEARCH & SEIZURE - WARRANT - FRANKS HEARING
United States v. Napier (2006) F.3d , 06 C.D.O.S. 1119 (9th Cir. 2/7/06, 04-10249)
Although Franks v. Delaware (1978) 438 U.S. 154, 155-156 identifies the "important right" to test the validity of a search warrant, it does not create an unlimited right to access all information possibly needed to meet the preliminary showing requirement. Defendant's interest must be balanced against government's interest in maintaining integrity of ongoing criminal investigations and ensuring the safety of the informant. See Roviaro v. United States, 353 U.S. 53, 60-64 (1957) (recognizing "Government's privilege to withhold from disclosure the identity of persons who furnish information of violations of law to officers charged with enforcement of that law" ). Trial court only abuses its discretion when balancing these interests and denying a motion to unseal an affidavit if its decision "lies beyond the pale of reasonable justification under the circumstances." Harman v. Apfel, 211 F.3d 1172, 1175 (9th Cir. 2000). Here, the court not only ordered the government to prepare a redacted affidavit, it conducted a hearing at which the search warrant affiant (the police officer) was subjected to questioning by defendant's counsel. It also asked defense counsel if he wanted an in camera hearing where the judge would question the confidential informant.
SECURITIES FRAUD - GOOD FAITH BELIEF THAT REGISTRATION NOT REQUIRED
People v. Salas (2006) Cal.4th , 06 C.D.O.S. 1095 (Cal. Supreme Court, 2/6/06, S126773)
Seller who believes reasonably and in good faith that a security is exempt is not guilty of the crime of unlawful sale of an unregistered security. Corporations Code section 25110 is not a strict liability offense. But a defendant's reasonable good faith belief that a security is exempt from registration is an affirmative defense on which the defense bears the initial burden of proof.
SECURITIES FRAUD - INSIDER TRADING - "OFFICE ABUZZ"
United States v. Bhagat (2006) F.3d , 06 C.D.O.S. 1161 (9th Cir. 2/8/06, 03-10029)
New factual theory (that the office was "abuzz" with news of new contract) referred to by government in closing argument was introduced for proper purpose of impeaching defendant's credibility and did not create a constructive amendment or material variance of the indictment.
SENTENCING - CONSECUTIVE FOR CRIMES COMMITTED DURING INDIVISIBLE COURSE OF CONDUCT
People v. Le (2006) Cal.App.4th , 06 C.D.O.S. 1313 (Sixth Dist., 2/13/06, H028821)
Trial court erred in sentencing defendant to consecutive terms for robbery and burglary when they were committed during an indivisible course of conduct with one purpose: to steal goods from drugstore. Lack of objection by trial counsel did not waive issue because Penal Code section 654 error results in unauthorized sentence. (People v. Scott (1994) 9 Cal.4th 331, 354, fn. 17.)
SEX OFFENSES - ASSAULT WITH INTENT TO COMMIT RAPE AND ATTEMPTED RAPE
People v. Vasquez (2006) Cal.App.4th , 06 C.D.O.S. 1295 (Second Dist., 2/10/06, B181422)
Assault with intent to commit rape is not a lesser included offense of attempted forcible rape because the potential punishment for the crime is greater, not lesser, than the potential punishment for attempted forcible rape.
TRAFFIC OFFENSES - HIT-AND-RUN - VICTIM'S FUNERAL EXPENSES
People v. Rubics (2006) Cal.App.4th , 06 C.D.O.S. 1107 (Fourth Dist., 2/6/06, D045636)
Restitution for victim's funeral expenses proper after conviction for felony hit-and-run, at least under these circumstances, where defendant admitted that he drove a car involved in an accident and the accident caused the death of another. Note that the analysis is different here than in People v. Carbajal (1995) 10 Cal.4th 1114, because there restitution was ordered as a condition of probation, and here the defendant was sentenced to prison. While restitution as a condition of probation may be ordered unless it is not reasonably related to the offense, restitution when the defendant is committed to state prison is limited to damages specifically caused by the crime of which the defendant was convicted.
TRAFFIC VIOLATIONS - ALLOWING COP TO CROSS-EXAMINE DEFENDANT
People v. Dragomir (2006) Cal.App.4th Supp. , 06 C.D.O.S. 1327 (Appellate Division, Santa Clara, 11/7/05, 1-04-AP-000014)
Santa Clara Traffic Commissioner Lisa Steingart allowed the police officer, who was appearing as a witness, to cross-examine the defendant (neither side was represented by counsel). Held, she erred, but, of course, since this is after all Santa Clara County, the error was harmless.
Ed. Note: Okay, Commissioner Steingart gets the "what was she thinking" award. As the court points out, the officer is not a "party" within the meaning of Evidence Code section 773 or 775. "The 'party' was the State of California, and the officer was simply their [sic] witness."
Note also that Santa Clara County District Attorney George Kennedy, who apparently could not be bothered to send a prosecutor to try the case, nevertheless felt it justified to spend county resources on an appeal.
