April 29, 2008 Reasonable Doubts

IMMIGRATION CONSEQUENCES - CALIFORNIA BURGLARY
United States v. Aguila-Montes de Oca (9th Cir. 4/28/08, 05-50170) 08 
C.D.O.S. 4937
California residential burglary, Penal Code section 459, is "crime of 
violence" under section 2L1.2(b)(1)(A) of Sentencing Guidelines, and 
supports court's imposition of 16-level sentence enhancement.

IMMIGRATION CONSEQUENCES - CALIFORNIA AGGRAVATED ASSAULT
Ortiz-Magana v. Mukasey (9th Cir. 4/28/08, 06-72797) 08 C.D.O.S. 4952
Assault with deadly weapon, California Penal Code section 245(a)(1) 
is crime of violence under 18 U.S.C. section 16, and convicted alien 
is "aggravated felon" for immigration purposes. So is person convicted 
as aider and abettor.

SENTENCING - FEDERAL - POST-PLEA CONDUCT
United States v. Mara (9th Cir. 4/28/08, 07-30102) 08 C.D.O.S. 4958
Post-plea involvement in jail violence could be considered failure to 
accept responsibility and form basis for denying downward adjustment.

HOMICIDE - LYING-IN-WAIT - DELAY
People v. Lewis (Ca. Sup. Ct., 4/28/08, S031603) 08 C.D.O.S. 4967
Killings did not occur in the course of lying in wait, though 
forcible kidnapping did. Defendant then drove the still living victims 
around in their cars for periods of one to three hours, while 
withdrawing money from their  bank accounts, before killing them. By 
the time of the killings, the concealment, the watchful waiting, and 
the surprise attack all had taken place at least one and up to three 
hours earlier. Insufficient evidence for lying-in-wait special 
circumstance. Facial constitutional challenge to special circumstance 
under Maynard v. Cartwright (1988) 486 U.S. 356 rejected. "We have 
limited the special circumstance to cases in which the killer 
intentionally takes life under circumstances that include a 
concealment of purpose, a substantial period of watching and waiting 
for an opportune time to act, and immediately thereafter a surprise 
attack on an unsuspecting victim from a position of advantage."

EVIDENCE - DRAWINGS AS HEARSAY
People v. Lewis (Ca. Sup. Ct., 4/28/08, S031603) 08 C.D.O.S. 4967
Court erred (harmlessly of course, since this is a death penalty 
case) in admitting cartoon-like drawings found in apartment. The 
drawings were hearsay because the jury was asked to conclude that they 
were intended as substitute for verbal expression and conveyed truth 
of assertion that defendant committed robberies with sawed-off 
shotgun. Because there was no evidence defendant made the drawings, 
they could not be admitted as hearsay exception for admissions. Not 
adoptive admissions because no evidence defendant had ever seen them.

LESSER INCLUDEDS - NO ROBBERY IN KIDNAPPING FOR ROBBERY
People v. Lewis (Ca. Sup. Ct., 4/28/08, S031603) 08 C.D.O.S. 4967
Because one can commit a kidnapping for robbery without also 
committing a robbery, robbery is not a lesser included offense of 
kidnapping for robbery.

SENTENCING - PENAL CODE SECTION 654 - KIDNAPPING FOR ROBBERY AND ROBBERY
People v. Lewis (Ca. Sup. Ct., 4/28/08, S031603) 08 C.D.O.S. 4967
Penal Code section 654 bars multiple punishment for separate offenses 
arising out of single occurrence when all offenses were incident to 
one objective. (Neal v. California (1960) 55 Cal.2d 11, 19.) Here, 
kidnappings and robberies were all committed to single intent of 
robbery.