May 19, 2008 Reasonable Doubts

COUNSEL - INEFFECTIVE ASSISTANCE - FAILURE TO DEVELOP MITIGATING 
EVIDENCE
Correll v. Ryan (9th Cir. 5/14/08, 03-99006) 08 C.D.O.S. 5718
Majority of panel files amended opinion holding that trial counsel 
was ineffective in failing to develop mitigating evidence. Callahan, 
Kozinski, O'Scannlain, Kleinfeld, Tallman and Bea dissent from denial 
of rehearing en banc, arguing that panel failed to give deference to 
district court's factual findings and improperly interpreted 
Strickland v. Washington (1984) 466 U.S. 668 so as to create almost 
irrebutable presumption of prejudice.
Use Note: this one's headed for the Big Supremes in the Sky.

SEXUALLY VIOLENT PREDATORS - RETROACTIVE APPLICATION OF AMENDMENTS
People v. Johnson (C.A. 4th, 5/14/08, D050751) 08 C.D.O.S. 5770
Imposition of indeterminate commitment does not violate due process 
even after amendments to statute. Hubbart v. Superior Court (1999) 19 
Cal.4th 1138 is still good law even though new amendments place burden 
of proving he is no longer mentally ill on the individual and provide 
for an indeterminate commitment.

APPEALS - FEDERAL - INTERLOCUTORY APPEAL AND DISCOVERY POWERS
United States v. W.R. Grace (9th Cir. 5/15/08, 06-30192) 08 C.D.O.S. 
5799
United States Attorney's bare certification regarding delay and 
materiality in accordance with the terms of 81 U.S.C. section 3731 is 
sufficient to give Ninth Circuit appellate jurisdiction to address 
government's objections to district court's orders. Court sitting en 
banc overrules prior decisions to the extent they conflict, including 
United States v. Loud Hawk, 628 F.2d 1139 (9th Cir. 1979) (en banc), 
and United States v. Adrian, 978 F.2d 486 (9th Cir. 1992). On the 
merits, district court did have authority to issue and enforce 
pretrial orders compelling the government to disclose its witness list 
and did not abuse its discretion in doing so. Court also overrules 
United States v. Hicks, 103 F.3d 837 (9th Cir. 1996), to the extent it 
purported to deny the district court such authority.

DRUNK DRIVING - GOVERNMENT RIGHT TO PRESENT RETROGRADE EXTRAPOLATION 
EVIDENCE
People v. Warlick (Superior Court Appellate Division, San Diego, 
3/11/08, JAD08-01) 08 C.D.O.S. 5908
DA had right to introduce evidence of "retrograde extrapolation" to 
prove BA level was .08 at time defendant drove car. Baker v. Gourley 
(2002) 98 Cal.App.4th 1263 does not prohibit People from proving .08 
with such evidence. Baker involved admin per se laws and not criminal 
proceeding.

ROBBERY - INSTITUTIONALIZATION DEFENSE
People v. Bordelon (C.A. 1st, 5/14/08, A114023) 08 C.D.O.S. 5874
Defendant presented "institutionalization" defense, that is, he 
robbed the same bank he had robbed before in order to get sent back to 
prison. After commenting on the unusual defense, court holds that 
instruction that motive was not relevant was not misleading in light 
of specific intent instruction.

EXPERTS - HEARSAY USED BY EXPERT
People v. Bordelon (C.A. 1st, 5/14/08, A114023) 08 C.D.O.S. 5874
Trial court abused discretion by excluding defendant's statements to 
parole officer psychologist which expert used to base opinion. Since 
expert's opinion is "no better than the facts on which it is 
based" (People v. Gardeley (1996) 14 Cal.4th 605, 618), experts 
generally should be allowed to testify as to all facts upon which they 
base their opinions (People v. Ainsworth (1988) 45 Cal.3d 948, 1014) 
unless detailed explanation puts inadmissible hearsay before the jury. 
Here statement was neither irrelevant, incompetent or unreliable. But 
evidentiary errors harmless.

HOMICIDE - CONSEQUENCE OF SHOOTING AT CAR
People v. Zarazua (C.A. 3rd, 5/15/08, C047726) 08 C.D.O.S. 5880
Collision that killed child was foreseeable consequence of discharge 
of firearms at another car whose occupants tried to escape and struck 
car in which victim was riding, and supported finding under Penal Code 
section 12022.53, subdivision (d) that personal use of firearm caused 
death.

PRELIMS - VIOLATION OF CONTINUOUS PRELIM RULE
Kruse v. Superior Court (C.A. 3rd, 5/15/08, C055654) 08 C.D.O.S. 5898
Right to continuous prelim wrongfully denid where no good cause shown 
for failure to transport defendant to court.

PROBATION (SUPERVISED RELEASE) - FEDERAL - RIGHT TO CROSS-EXAMINE LAB 
TECH
United States v. Perez (9th Cir. 5/16/08, 07-10289) 08 C.D.O.S. 5923
Person on supervised release had right to cross-examine laboratory 
technician who tested urine sample containing illegal drug, where: (1) 
test report itself stated the sample was "dilute"meaning the urine 
sample had been combined with another liquid at some point before or 
during the testing; (2) the evidence presented showed the person on 
supervised release did not have an opportunity herself to dilute nor 
add a substance to the sample; and (3) the result of the urinalysis 
was critical to support a finding that the person on supervised 
release had possessed or used illegal drugs. "We caution that this is 
an unusual case with unusual facts and should not be taken out of 
context. We do not hold that a releasee always has a right to cross-
examine the technician who tested a urine sample."

SENTENCING - CUNNINGHAM - NO RETROACTIVITY
In re Saade (C.A. 4th, 5/16/08, G038712) 08 C.D.O.S. 5943
Cunningham v. California (2007) 549 U.S. 270 did not apply 
retroactively to aggravated term sentence when defendant's sentence 
was final when Cunningham decided.