June 24, 2008 Reasonable Doubts

COUNSEL - COUNSEL FOR DEFENDANT MENTALLY INCAPABLE OF CONDUCTING TRIAL
Indiana v. Edwards (U.S. Sup. Ct. 6/19/08, 07-208) 08 C.D.O.S. 7555
When defendant is found mentally competent to stand trial if
represented by counsel but not mentally competent to conduct trial
himself, Constitution does not forbid State from insisting that
defendant proceed with counsel, even if it denies him the right to
represent himself under Faretta v. California (1975) 422 U.S. 806.

WEAPONS - BORDER PATROL OFFICER'S USE OF SERVICE FIREARM IN CRIME
United States v. Gonzalez (9th Cir. 6/19/08, 07-10326) 08 C.D.O.S. 7563
Border Patrol agent who stole marijuana while wearing his service-
issued firearm and in uniform could be convicted of firearm use in
furtherance of drug trafficking offense.

APPEALS - INCOMPLETE APPELLATE RECORD
People v. Harris (Ca. Sup. Ct., 6/19/08, S037625) 08 C.D.O.S. 7575
“[S]tate law entitles a defendant only to an appellate record
‘adequate to permit [him or her] to argue’ the points raised in the
appeal. [Citation.] Federal constitutional requirements are similar.
The due process and equal protection clauses of the Fourteenth
Amendment require the state to furnish an indigent defendant with a
record sufficient to permit adequate and effective appellate review.
[Citations.] Similarly, the Eighth Amendment requires reversal only
where the record is so deficient as to create a substantial risk the
death penalty is being imposed in an arbitrary and capricious manner.
[Citation.] The defendant has the burden of showing the record is
inadequate to permit meaningful appellate review. [Citation.]” (People
v. Rogers (2006) 39 Cal.4th 826, 857–858; see also People v. Rundle
(2008) 43 Cal.4th 76, 110–111.)
While a substantially defective record can amount to a structural
defect, it remains appellant's burden to make that showing.

SEARCH & SEIZURE - SEARCH BY PRIVATE PARTY
People v. Wilkinson (C.A. 3rd, 6/18/08, C054228) 08 C.D.O.S. 7604
Roommate's boyfriend was not police agent when he took CDs from
defendant's room containing recordings made with roommate's webcam and
viewed them, but illegal search did occur when police directed him to
show them additional images and on their own looked at some of the
discs without knowing whether those discs were ones boyfriend had
already viewed.

STATUTE OF LIMITATIONS - REENACTMENT IN DIFFERENT STATUTE
People v. White (C.A. 5th, 6/18/08, F054327) 08 C.D.O.S. 7612
Placing statute of limitations in a different statute did not result
in implicit repeal. Reenactment by a new statute of an existing
statute in substantially the same terms repeals by implication only
those provisions of the existing statute omitted by reenactment. (1A
Sutherland Statutes and Statutory Construction (6th ed. 2002) § 23.29,
p. 556.)

TRIAL - RULINGS IN FIRST TRIAL NOT BINDING IN SECOND
People v. Sons (C.A. 2nd, 6/19/08, B192825) 08 C.D.O.S. 7648
Because declaration of mistrial places case in position as if no
trial had been held, it vacates previous trial court rulings, and
therefore such rulings are not binding in subsequent trial. People v.
Riva (2003) 112 Cal.App.4th 981, 989–993 [trial court ruling excluding
defendant’s statements was not binding on subsequent trial court after
mistrial was declared].) "Trial court judges are required to follow
the United States and California Constitutions, California statutory
law, the law as declared by the appellate courts of this state (Auto
Equity Sales, Inc. v. Superior Court (1957) 57 Cal.2d 450, 455) as
well as any “law of the case” as declared by the appellate court. But
they are not bound by rulings made at trial by a previous trial court
judge. Trial court judges are independent judicial officers. They have
both the right and the duty, consistent with their oaths of office, to
exercise their best judgment, not to abandon it to previous trial
court rulings."

DISCOVERY - POSTCONVICTION DISCOVERY
Barnett v. Superior Court (People) (C.A. 3rd, 6/19/08, C051311) 08
C.D.O.S. 7659
Penal Code section 1054.9, which grants postconviction discovery to
persons subject to death penalty of life without parole, is not an
invalid amendment to criminal discovery statutes enacted by
Proposition 115. The section was an addition to the discovery
statutes, not an amendment. The voters intended the discovery chapter
they were enacting to address the discovery that occurs before a
criminal trial.

APPEALS - INCREASE IN SENTENCE BY APPELLATE COURT
Greenlaw v. United States (U.S. Sup. Ct. 6/23/08, 07-330) 08 C.D.O.S.
7716
U.S. Court of Appeals may not order increase in defendant's sentence
on its own initiative. Absent government appeal or cross-appeal,
appellate court did not have power to act. "In our adversary system,
in both civil and criminal cases, in the first instance and on appeal,
we follow the principle of party presentation. That is, we rely on the
parties to frame the issues for decision and assign tocourts the role
of neutral arbiter of matters the parties present."
Use Note: can we use this case to challenge "unauthorized sentence"
cases in California? Why not?

RESISTING FEDERAL OFFICER - INSUFFICIENT EVIDENCE
United States v. Chapman (9th Cir. 6/23/08, 07-50000) 08 C.D.O.S. 7726
Where nonviolent civil disobedience did not constitute simple
assault, defendant could not be convicted of forcibly resisting,
impeding, federal officer. Basically, the defendant just refused to
cooperate.

SEXUALLY VIOLENT PREDATOR - SUPERVISED COMMUNITY PLACEMENT
People v. Superior Court (George) (C.A. 1st, 6/23/08, A120536) 08
C.D.O.S. 7752
In order to recommit defendant as an SVP, it is sufficient to prove
that public safety requires either his confinement in a secure
facility or supervised community placement. Here, DA conceded evidence
did not show defendant required confinement in locked facility.

DRUGS - UNSUCCESSFUL ATTEMPT TO POSSESS
In re Rothwell (C.A. 4th, 6/23/08, D051584) 08 C.D.O.S. 7735
Prisoner could not be sanctioned by prison for possession of drugs
when .14 grams of heroin concealed on postcard was never in his
possession, but was intercepted by guard working mailroom.

COUNSEL - RIGHT TO COUNSEL AT FIRST APPEARANCE
Rothgery v. Gillespie County, Texas (U.S. Sup. Ct. 6/23/08, 07-440)
08 C.D.O.S. 7771
Right to counsel under Sixth Amendment applies at first appearance
before judicial officer at which defendant is told of formal
accusation and restrictions are placed on liberty. (Brewer v. Williams
(1977) 430 U.S. 387, 398-399). Right attaches even if public
prosecutor is not involved in proceeding.

COUNSEL - INEFFECTIVE ASSISTANCE - FAILURE TO INVESTIGATE
Duncan v. Ornoski (9th Cir. 6/23/08, 05-99010) 08 C.D.O.S. 7791
Lawyer's performance was deficient during guilt phase of trial
because he failed to investigate and present evidence that blood
samples from crime scene that did not belong to the victim also did
not belong to defendant. This evidence would have tended to establish
that defendant had an accomplice who was in the murder room on the
night of the murder, shed blood, and used the first aid kit on the
wall to treat his wounds. Evidence would have been sufficient to
support an inference that it was the accomplice, not Duncan, who
killed the victim. Prejudice shown as to special circumstance finding,
which at that time, required proof of intentional killing.

JUVENILES - COMPETENCY AND FITNESS
Tyrone B. v. Superior Court (C.A. 3rd, 6/25/08, C058142)
Sacramento County Judge Carol S. Chrisman erred by refusing to
consider appointment of expert to evaluate minor's competency before
proceeding further with settlement conference and fitness hearing.
"Trial of an incompetent defendant is a violation of due process.
(Medina v. California (1992) 505?U.S. 437, 453 [120?L.Ed.2d 353,
368].)" Peremptory writ issued in first instance.
Ed. Note: well, duh!!!