CHILD PORN - FEDERAL - ENHANCEMENT
United States v. Garner (9th Cir. 6/18/07, 06-10417) 07 C.D.O.S. 6932
Trial court could use 35-year-old sexual abuse of his children to enhance sentence for 18 U.S.C. section 2252(a)(2) (attempted receipt and distribution of visual depictions of minor engaged in sexually explicit conduct). Guidelines permits a five-level increase in offense level "if the defendant engaged in a pattern of activity involving the sexual abuse or exploitation of a minor."
DEATH PENALTY - CONSTITUTIONAL ARGUMENTS
People v. Bonilla (Cal. Supreme Court, 6/18/07, S045184) 07 C.D.O.S. 6934
Court rejects challenge to constitutionality of California death penalty, with little analysis.
DEATH PENALTY - SPECIAL CIRCUMSTANCES - LYING-IN-WAIT
People v. Bonilla (Cal. Supreme Court, 6/18/07, S045184) 07 C.D.O.S. 6934
Lying-in-wait special circumstance applies to aiders and abettors, and does not require that the defendant himself lie in wait. Court does not reach question of Proposition 18's impact on constitutionality of special, as case pre-dated Prop. 18.
DISCOVERY - GOVERNMENT'S PARTICIPATION IN THIRD PARTY DISCOVERY
Smith v. Superior Court (People) (Fourth Dist., 6/19/07, D049852) 07 C.D.O.S. 7014
Under People v. Alford (2003) 29 Cal.4th 1033 (Alford) the People do not have standing to participate in his third party discovery efforts, and do not have a right to receive copies of documents and other information defendant may obtain from the Jury Commissioner as a result of his discovery efforts. Government is only entitled to notice of the date and place of the hearing.
"Penal Code sections 1326 and 1327 and Evidence Code section 1560 provide a procedure for discovery by a defendant in a criminal case of books and records of a third party who is not a party to the criminal proceeding. This procedure includes specification of the form of subpoena (Pen. Code, sec. 1327) and the method of complying with a subpoena duces tecum requiring the production of documents. The records are to be delivered to the court, which may order an in camera hearing to determine if the records should be released to the defendant. (Pen. Code, sec. 1326, subd. (c).) However, the court may not order the documents disclosed to the prosecution unless the defendant intends to introduce them as evidence in the trial. (Pen. Code, secs. 1326, subd. (c); 1054.3; see generally Pipes & Gagen, Cal. Criminal Discovery (2006 supp.) Third-Party Discovery, sec. 9:10-9:15, pp. 262-265.) There is no provision in this third party discovery procedure for participation by the prosecution."
If the defendant subsequently files a motion challenging the jury selection system, the People will be entitled to participate and receive discovery from the defendant under Penal Code section 1054.3.
DRUNK DRIVING - WEAVING AS P/C FOR STOP
Arburn v. Department of Motor Vehicles (Sixth Dist., 5/10/07, H030127) 07 C.D.O.S. 6897
"Weaving within a lane is a widely-recognized characteristic of an intoxicated driver and recognizing a weaving driver is undoubtedly within the province of even the most junior officer." Lack of evidence that driver was seen weaving over a substantial or considerable distance does not prevent finding of reasonable suspicion. Weaving and near-miss of curb created immediate concern for public safety and raised reasonable suspicion of driving under influence. Officer had right and duty to investigate.
HABEAS CORPUS - FEDERAL - RELIANCE ON ERRONEOUS COURT ORDER
Bowles v. Russell (U.S. Supreme Court, 6/14/07, 06-5306) 07 C.D.O.S. 6807
You know when Justice Thomas writes an opinion on habeas corpus it's going to be bad news for the petitioner, and this one is as bad as it gets. The district court gave the habeas petitioner three more days than the statute provides to file a notice of appeal, and the poor soul filed within the time given (17 days) but after the time allowed (14 days). The time for filing a notice of appeal is "mandatory and jurisdictional" and there is no equitable exception even for "unique circumstances" (overruling Harris Truck Lines, Inc. v. Cherry Meat Packers, Inc. (1962) 371 U.S. 215).
Justices Souter, Stevens, Ginsburg and Breyer dissent: "In ruling that Bowles cannot depend on the word of a District Court Judge, the Court demonstrates that no one may depend on the recent, repeated, and unanimous statements of all participating Justices of this Court."
HABEAS CORPUS - NO ACTUAL OR CONSTRUCTIVE CUSTODY
In re Stier (First Dist., 6/15/07, A112248) 07 C.D.O.S. 6951
Trial court acted in excess of authority in granting habeas relief to petitioner in absence of actual or constructive custody. Neither requirement to register as sex offender nor threatened confiscation of medical license are enough to constitute custody. Court holds that government is not precluded from appealing habeas grant even though the District Attorney did not oppose the grant of the petition, and the Attorney General did not appear before the trial court, and did not challenge jurisdiction below. Forfeiture is not found where court acts in excess of jurisdiction. "The Attorney General's claim that the trial court exceeded its authority pursuant to section 1473 by granting habeas corpus relief to respondent in the absence of evidence that he was 'unlawfully imprisoned or restrained of his liberty' presents an issue of law based upon undisputed facts that we may review in the absence of an objection below." In any event, even if the Attorney General forfeited the issue, "Given the overriding public interest attached to the issues of respondent's duty to register as a sex offender and the resulting revocation of his medical license, we find that no waiver on appeal resulted from the District Attorney's effective concession or the Attorney General's failure to appear at the hearing to contest the petition."
Matter remanded to permit petitioner to request a writ of mandate to show that the court had a duty to absolve him from the requirement to register.
Use Note: The facts of this case illustrate the over-reaching effect of the amendments to Penal Code section 290. Petitioner, a doctor, entered a guilty plea in 2000 to having sex with a minor in North Carolina in 1996. It was unclear whether registration was required in North Carolina, but he went ahead and registered in California, and successfully completed probation. He reported the conviction to the Medical Board, which placed him on probation and found him fit to continue to practice. Then the law was amended in 2003, requiring the Medical Board to confiscate his license, which it proceeded to do. This man's career is being destroyed by an act which he may have committed 11 years ago (which involved a 14-year old girl pretending to be 18), and for which he was fully punished. This just isn't right.
HEARSAY - CRAWFORD - 911 CALL
People v. Brenn (Fourth Dist., 6/18/07, G036470) 07 C.D.O.S. 7009
Statements made by stabbing victim to 911 operator and to first police officer on the scene were admissible as spontaneous statements and were non-testimonial in nature, and therefore not barred by Crawford v. Washington (2004) 541 U.S. 36.
JURY INSTRUCTIONS - CONSCIOUSNESS OF GUILT
People v. Bonilla (Cal. Supreme Court, 6/18/07, S045184) 07 C.D.O.S. 6934
No error to instruct with CALJIC 2.03 (consciousness of guilt): "if Bonilla truly was innocent, why did he not tell Susan or Sandy Harris that he had seen Jerry Harris being assaulted by Nichols and Keyes?"
JURY INSTRUCTIONS - FLIGHT
People v. Bonilla (Cal. Supreme Court, 6/18/07, S045184) 07 C.D.O.S. 6934
Flight instruction is generally proper where evidence shows defendant departed crime scene under circumstances suggesting consciousness of guilt. Here, defendant left when victim was being attacked, which suggested that he knew attack was coming (and that he had hired the attacker), and not that it was a complete surprise to him (his defense).
JURY MISCONDUCT - "NODDING OFF"
People v. Bonilla (Cal. Supreme Court, 6/18/07, S045184) 07 C.D.O.S. 6934
Trial court properly investigated allegations that two jurors were sleeping during penalty phase, and discharged one.
JURY SELECTION - BATSON/WHEELER
People v. Bonilla (Cal. Supreme Court, 6/18/07, S045184) 07 C.D.O.S. 6934
No prima facie case of discrimination made. Challenges to the only two African-Americans were based on answers to questions. No showing of intentional discrimination against Hispanic women (assuming they are cognizable group). Challenges to women were supported by answers, and in any event final jury had 5 women. No comparative juror analysis required in "first-stage" (no prima facie case) case.
LESSER INCLUDEDS - ASSAULT WITH WEAPON NO LIO OF SHOOTING FROM VEHICLE
People v. Licas (Cal. Supreme Court, 6/18/07, S140032) 07 C.D.O.S. 6948
Assault with a firearm is not a lesser included offense of shooting from a vehicle. Shooting from car does not include element that shooter have a "present ability" to commit violent injury on another, a requirement of the offense of assault with a firearm.
MISCONDUCT - PROSECUTORIAL - REFERENCE TO ABSENCE OF REMORSE IN PENALTY PHASE NOT
People v. Bonilla (Cal. Supreme Court, 6/18/07, S045184) 07 C.D.O.S. 6934
Reference to absence of remorse is proper at penalty phase. "[P]rosecutor may properly comment on a defendant's lack of remorse, as relevant to the question of whether remorse is present as a mitigating circumstance, so long as the prosecutor does not suggest that lack of remorse is an aggravating factor." (People v. Mendoza (2000) 24 Cal.4th 130, 187.)
MISCONDUCT - PROSECUTORIAL - VOUCHING NOT FOUND
People v. Bonilla (Cal. Supreme Court, 6/18/07, S045184) 07 C.D.O.S. 6934
Prosecutor's repeated references to plea agreement that required witness to testify truthfully did not constitute impermissible vouching: "arguments that Keyes should be believed because he had an incentive to tell the truth under the terms of his plea agreement; arguments he should be believed because, despite extensive cross-examination, his preliminary hearing and trial testimony were consistent; and arguments he should be believed because other evidence in the record corroborated his testimony. These were arguments from the evidence, suggesting reasonable inferences the jury could draw that might lead it to credit Keyes's testimony. They did not suggest the prosecutor had personal knowledge of facts outside the record showing Keyes was telling the truth. Nothing in the challenged remarks invited the jury to abdicate its responsibility to independently evaluate for itself whether Brad Keyes should be believed. There was no prosecutorial misconduct."
PRIORS - THREE STRIKES - SEX BETWEEN MINORS
People v. Cole (Fifth Dist., 6/19/07, F050978) 07 C.D.O.S. 7018
Prior conviction for Penal Code section 288, subdivision (a) in adult court when appellant was 16 and victim was 13 constituted "strike" and court did not abuse discretion in refusing to dismiss it under Romero. There is no indication that legislature meant to exclude all section 288 offenses committed by minors without violence or duress. "While the facts underlying his conviction, insofar as they were known to and accepted by the trial court, were not particularly high on the scale of sex crime atrocities, there is nothing in the record to indicate that the trial court did not consider the nature of appellant's section 288 offense in responding to his Romero motion." No equal protection violation in treating minors as adults and as juveniles (juvenile adjudication for 288 would not result in strike).
SEARCH & SEIZURE - "CONSENT" THROUGH INTIMIDATION
United States v. Washington (9th Cir. 6/19/07, 06-30386) 07 C.D.O.S. 6988
"... Washington, an African-American male, was sitting in the driver's seat of his Ford Taurus, which was lawfully parked in downtown Portland, Oregon. Portland police officer Shaw, a white male, saw Washington sitting in the car, did not suspect Washington of any crime, but decided to make contact to investigate." Shaw asked defendant what he was doing, and asked for consent to search his person, which defendant gave. Then "Portland police officer Pahlke, a white male, arrived at the scene, parking his vehicle a few car lengths in front of Washington's car. Upon his arrival, Pahlke heard Shaw ask Washington to step out of and then direct Washington away from the car, and noticed that when Washington exited his car, Washington's hands were raised. Pahlke positioned himself at the Taurus's partially open driver's side door, blocking Washington's entrance back into his car." Defendant consented to the search of his car, which produced a weapon.
"Recent relations between police and the African-American community in Portland are also pertinent to our analysis: According to testimony at the suppression hearing, in the one and a half years before Shaw initiated contact with Washington, there were two well-publicized incidents where white Portland police officers, during traffic stops, shot, and in one instance killed, African-American Portland citizens. As a result of these incidents, the Portland Police Bureau published and distributed several pamphlets advising the public how to respond to a police stop. Washington testified that he knew of and discussed with a friend one of the pamphlets, which contained advice to citizens such as 'follow the officer's directions' when stopped, and 'if ordered, comply with the procedures for a search.' Additionally, in a message from the Chief of Portland's Police Department, the pamphlet listed common reasons police will stop a person, such as a person 'committed a crime,' or 'is about to commit a crime.'"
Held, Shaw's initial encounter was not a seizure. However, "under the totality of the circumstances Shaw's authoritative manner and direction of Washington away from Washington's car to another location, the publicized shootings by white Portland police officers of African-Americans, the widely distributed pamphlet with which Washington was familiar, instructing the public to comply with an officer's instructions, that Shaw and Pahlke outnumbered Washington two to one, the time of night and lighting in the area, that Pahlke was blocking Washington's entrance back into his car, and that neither Pahlke, nor Shaw, informed Washington he could terminate the encounter and leave we conclude that a reasonable person would not have felt free to disregard Shaw's directions, end the encounter with Shaw and Pahlke, and leave the scene .... the district court clearly erred in finding that Washington's consent to the search of his car was voluntary."
SEARCH & SEIZURE - DETENTION OF PASSENGER
Brendlin v. California (U.S. Supreme Court, 6/18/07, 06-8120) 07 C.D.O.S. 6928
When a police officer makes a traffic stop, the passenger is seized within meaning of Fourth Amendment, and may challenge the constitutionality of the stop.
Ed. Note: this is a unanimous (!) decision, Justice Souter speaking for the court. As if Cunningham was not enough, this is clear proof that the California Supreme Court is out of step with the federal high court. Which for the trial practitioner means that you should object on every issue that the U.S. high court has not specifically addressed, especially if other courts (state and federal) have held otherwise. Justice Souter pointedly mentions that "Our conclusion comports with the views of all nine Federal Courts of Appeals, and nearly every state court, to have ruled on the question."
SEARCH WARRANTS - IT'S OKAY TO DAMAGE PROPERTY AND HURT PEOPLE WHILE EXECUTING WARRANT
United States v. Ankeny (9th Cir. 6/19/07, 05-30457) 07 C.D.O.S. 6980
Because Portland, Oregon police apparently don't have much crime to investigate, they sent 44 officers to execute a warrant for the house of an ex-felon suspected of assault and firearm possession. The police broke down the door one second after announcing themselves, ordered defendant to lie on the floor, then threw a "flash-bang" device on the floor next to him, which caused first- and second-degree burns to his face and chest and second-degree burns to his upper arms. Meanwhile, other officers shot out the second-story windows with rubber bullets. After securing the second level of the house they threw another device, which caused a bed upon which two people (innocent people living in the same house) were lying to catch fire. "Extensive damage was done to the house during the entry. The police shot out approximately ten windows, kicked in many doors, burned carpet, and made holes in the walls and ceilings with the rubber bullets." They recovered weapons and drugs.
The violation of knock-announce does not permit suppression. (Hudson v. Michigan (2006) 126 S.Ct. 2159.) The majority (Judges Tashima and Graber) conceded that the manner of execution is subject to review for reasonableness (Dalia v. United States (1979) 441 U.S. 238, 258), but found that "Whether this entry and search were conducted reasonably is a close question. The police had legitimate concerns about their safety in entering and searching the house. Defendant had a substantial criminal record, which included violent crimes; there was reliable evidence that he was armed and aggressive; there were several other people in the house, including a former prison inmate; and certain physical characteristics of the house made it difficult to secure. Officers testified at the suppression hearing that the element of surprise was very important due to those factors and that they used the battering ram, rubber bullets, and flash-bang devices in order to surprise and distract the occupants of the house. Thus, the destruction of property and use of force arguably were necessary to carry out the search safely and effectively." ... "On the other hand, the extent of the property damage, and particularly the use of two flash-bang devices, one of which seriously injured Defendant, weigh in favor of a conclusion of unreasonableness."
"Ultimately, we need not determine whether the entry was unreasonable because we agree with the district court that suppression is not appropriate in any event. The alleged Fourth Amendment violation and the discovery of the evidence lack the causal nexus that is required to invoke the exclusionary rule."
Judge Reinhardt dissents, referring to text messages the officers sent each other describing how much "fun" they had burning defendant: "'sorry tim, we were just jumping off . . it was 936 ne ... big fun!"; (2) "it was crazy ... fun had by all ... well except for the guy who laid on the flashbang ... 2nd degr burns ... missing half a mustache"; (3) "big time fun!! Lots of broken glass, bad guy jumped on the flashbang, good time had by all.'"
Ed. Note: The facts of this case are truly shocking. The Ninth Circuit is, in the words of Judge Reinhardt, "informing law enforcement officials a priori that suppression will never be an available remedy if they first obtain a warrant, regardless of how excessive or destructive the invasion and search of the house, would serve only to encourage some individuals to unleash overwhelming force on our citizens in contravention of the Fourth Amendment." This case must be taken up en banc and reversed.
Portland, Oregon police seem to be having a problem. (See United States v. Washington (9th Cir. 6/19/07, 06-30386) 07 C.D.O.S. 6988.
