COUNSEL - WAIVER NOT KNOWING AND INTELLIGENT
States v. Forrester (9th Cir. 7/6/07, 05-50410) 07 C.D.O.S. 8003
Defendant moved to represent himself. Even though court carefully warned him about dangers of self-representation, it did not inform him of charge and misinformed him as to potential prison term. Omission and misstatement meant waiver was not knowing and intelligent and violated Sixth Amendment. Reversed.
DISCOVERY - OTHER BANK ROBBERIES COMMITTED BY SIMILAR WOMAN
United States v. Jernigan (9th Cir. 7/9/07, 05-10086) 07 C.D.O.S. 8052
"Defendant Rachel Jernigan was arrested on November 10, 2000, for allegedly robbing three banks. After Jernigan was placed in custody and awaiting trial, two more area banks were robbed by a woman whose description bore an uncanny physical resemblance to hers: both women were roughly five feet tall, Hispanic, [fn.om] and had acne or pock-marked complexions. Although the prosecution knew that other nearby banks had been robbed by a diminutive, Hispanic female with poor skin after Jernigan's arrest, the prosecution failed to relay this information to defense counsel." The defendant learned this information in 2004 after hearing of the arrest of the robber, and filed a new trial motion. The trial court (the Honorable Earl H. Carroll) denied the motion. A panel of the Ninth Circuit affirmed the denial, and the full court took it up en banc, saying: "We disagree with both the original panel and the district court and hold that the suppressed evidence was material to Jernigan's guilt. [Fn.om.] The district court's decision is hereby reversed, and we remand for a new trial."
End. Note: the behavior of the Arizona U.S. Attorney, Judge Carroll, and even the original panel of the Ninth Circuit is simply outrageous. As the court said: "The government has deprived Jernigan of a fair trial and placed a possibly innocent woman behind bars." Judges Bea and O'Scannlain dissent.
DRUNK DRIVING - OBSERVATIONS OF DRIVING
Hildebrand v. Department of Motor Vehicles (Fourth Dist., 6/27/07, D048540)
Fire captain's observations, made while responding to call of motorist's car caught in train tracks, contained in officer's sworn statement and unsworn arrest report were admissible to prove motorist was driving. Each report, and the captain's statement contained in them, was admissible under Evidence Code section 1280 as a public employee record. See also McNary v. Department of Motor Vehicles (1996) 45 Cal.App.4th 688 (hearsay statements of one officer incorporated in another's report, admissible). The fire captain was acting pursuant to his duty to observe facts and report them correctly. In addition, the statements were admissible under Government Code section 11513, subdivision (d) to supplement or explain the motorist's own admissions to the arresting officer.
HABEAS CORPUS - FEDERAL - CONSTITUTIONAL CHALLENGE TO AEDPA
Crater v. Galaza (9th Cir. 7/9/07, 05-17027) 07 C.D.O.S. 8059
The Anti-Terrorism and Effect Death Penalty Act (AEDPA) is not unconstitutional, though it reduces the availability of federal habeas relief: "the Act does not preclude this Court from entertaining an application for habeas corpus relief, although it does affect the standards governing the granting of such relief."
KIDNAPPING - ATTEMPTED DURING CARJACKING
People v. Medina (Cal. Supreme Court, 7/9/07, S137055) 07 C.D.O.S. 8084
Attempted kidnapping during commission of carjacking does not require a completed carjacking. Attempted carjacking and attempted kidnapping are lesser included offenses in attempted Penal Code section 209.5.
MISCONDUCT - PROSECUTORIAL - NO APPARENT BIAS SHOWN
Crater v. Galaza (9th Cir. 7/9/07, 05-17027) 07 C.D.O.S. 8059
Trial court did not display an appearance of bias: he did not have a pecuniary interest in the case; he was not personally embroiled in a controversy with the defendant; and he did not perform incompatible accusatory and judicial roles. What the judge did here is basically tell the defendant that he should take the deal, because he had just heard the testimony in the co-defendant's case and the defendant was going to get convicted of capital murder.
SEARCH & SEIZURE - COMPUTER SURVEILLANCE
States v. Forrester & Alba (9th Cir. 7/6/07, 05-50410) 07 C.D.O.S. 8003
Computer surveillance, obtained with court permission, that enabled government to learn the to/from addresses of defendant's email messages, Internet protocol ("IP") addresses of the websites he visited and the total volume of information transmitted to or from his account is analogous to use of pen register did not constitute a search for Fourth Amendment purposes. (Smith v. Maryland (1979) 442 U.S. 735.) In any event, whether or not surveillance came within the scope of the then-applicable federal pen register statute, defendant was not entitled to suppression because there is no statutory or other authority for such a remedy.
SENTENCING - SIXTH AMENDMENT (CUNNINGHAM) - TWO VALID FACTORS
People v. Velasquez (Second Dist., 7/6/07, B171476) 07 C.D.O.S. 8022
Even though trial court failed to state reasons for imposing upper term, because two of the aggravating factors listed in the presentence report (prior prison term and numerous adult convictions) are recidivism-related factors, court could rely on them to impose upper term. (See also People v. Yim (June 21, 2007, B189955) __ Cal.App.4th __ [2007] Cal.App. LEXIS 1012] [post-Cunningham case; imposition of upper term sentence based on court's finding of recidivism-related factors does not violate defendant's Sixth Amendment right to jury trial]; People v. Abercrombie (2007) 151 Cal.App.4th 585, 591 [same].)
