SPEEDY TRIAL - JUSTIFIABLE DELAY - "COLD HIT" DNA TESTING
People v. Nelson (Ca. Sup. Ct., 6/16/08, S147051) 08 C.D.O.S. 7374
DNA testing undertaken in 2002 as part of "cold case" project
justified prosecution for 1976 murder. Note that this is precharging
delay, and not governed by speedy trial rights (U.S. Const., 6th
Amend.; Cal. Const., art. I, sec. 15, cl 1), but under Due Process
Clause. Defendant must demonstrate prejudice, prosecution may offer
justification, and court balances harm to defendant against
justification for delay. (People v. Catlin (2001) 26 Cal.4th 81, 107.)
Prejudice is never presumed, no matter how long the delay. Using
California law, court concludes that "whether the delay was negligent
or purposeful is relevant to the balancing process. Purposeful delay
to gain an advantage is totally unjustified, and a relatively weak
showing of prejudice would suffice to tip the scales towards finding a
due process violation. If the delay was merely negligent, a greater
showing of prejudice would be required to establish a due process
violation." But here the "delay was investigative delay, nothing else."
DNA - EVIDENCE OF ODDS IN COLD HIT CASE
People v. Nelson (Ca. Sup. Ct., 6/16/08, S147051) 08 C.D.O.S. 7374
Evidence regarding odds that crime scene evidence could have come
from some other person was admissible because statistical method used
to calculate those odds has achieved general scientific acceptance
under standard stated in People v. Leahy (1994) 8 Cal.4th 587 and
People v. Kelly (1976) 17 Cal.3d 24. Court held that "it is already
established that the product rule reliably shows what it purports to
show — the rarity of the genetic profile in the population group.
Accordingly, its admissibility in a cold hit case is a question of
relevance, not scientific acceptance, and it is thus not subject to a
further Kelly test." The odds calculated by the product rule are
relevant, and thus admissible, in a cold hit (also called trawl) case.
"The fact that the match ultimately came about by means of a database
search does not deprive the rarity statistic of all relevance. It
remains relevant for the jury to learn how rare this particular DNA
profile is within the relevant populations and hence how likely it is
that someone other than defendant was the source of the crime scene
evidence."
MENTALLY DISORDERED OFFENDERS - SUITABILITY FOR OUTPATIENT TREATMENT
People v. Rish (C.A. 2nd, 6/16/08, B198727) 08 C.D.O.S. 7392
Court did not have sua sponte duty to determine whether defendant
could be safely treated on outpatient basis, and defendant forfeited
claim because he did not raise suitability issue. In any event, he
failed to present sufficient evidence to support such a finding.
TRAFFIC - RED LIGHT PHOTO ENFORCEMENT
In re Red Light Photo Enforcement Cases (C.A. 4th, 6/13/08, D048882)
08 C.D.O.S. 7406
Taxpayer waste cause of action lacked merit, as red light photo
enforcement is not wasteful or illegal (Code of Civ. Proc. sec. 526a),
and city had no duty to grant relief by overturning drivers'
convictions. Contingency fee contracts entered into by municipalities
with private contractors were not void as against public policy;
contracts did not "tend ... to prevent or impede the due course of
justice," (Wilhelm v. Rush (1937) 18 Cal.App.2d 366, 370) because
municipalities retained control over systems and prosecutorial function.
SEX OFFENSES - QUESTIONING COMPLAINTING WITNESS ABOUT PRIOR FALSE
ACCUSATIONS
People v. Tidwell (C.A. 3rd, 6/17/08, C054142) 08 C.D.O.S. 7437
Evidence Code section 782 does not apply to prior rape complaints,
but to evidence of sexual conduct. Trial court did not abuse
discretion in excluding evidence of prior false rape complaints under
Evidence Code section 352 because evidence was weak on issue of
credibility and would require undue consumption of time, though prior
false complaints are admissible to show lack of credibility. (People
v. Burrell-Hart (1987) 192 Cal.App.3d 593, 599-600.)
SENTENCING - POST-REMAND INCREASE
People v. Torres (C.A. 5th, 6/16/08, F053132) 08 C.D.O.S. 7447
Tulare County Superior Court Judge Gary L. Paden originally struck
gang enhancements and imposed 7 year term for criminal threat
conviction. Department of Corrections sent case back because sentence
was higher than triad allowed. At resentencing he refused to strike
the gang enhancement and imposed a sentence more severe that the
original one. Held, Judge Paden erred under Penal Code section 1170,
subdivision (d) and double jeopardy clause in sentencing defendant to
term greater than initial sentence. Correcting the unauthorized
portion of the sentence did not mandate a sentence longer than
originally imposed. Distinguishes People v. Reyes (1989) 212 Cal.App.
3d 852 and In re Ricky H. (1981) 30 Cal.3d 176 because the original
sentence demonstrated legally unauthorized leniency that resulted in
aggregate sentence that fell below that authorized by law. "The one
unauthorized component of the sentence originally imposed by the court
was not lenient — it was in fact more severe than that authorized (the
correct upper term for count 3 being three years rather than seven).
Principles of double jeopardy as well as the mandate of section 1170,
subdivision (d) require that under these circumstances the trial court
may not impose a sentence longer than originally imposed. Thus, the
trial court erred in imposing a sentence of seven years to life after
it recalled defendant’s sentence of seven years in prison. The case
must be remanded. On remand, the trial court may not impose a total
sentence greater than seven years in prison."
