HEARSAY - CRAWFORD - FORFEITURE BY WRONGDOING
Giles v. California (U.S. Sup. Ct. 6/25/08, 07-6053) 08 C.D.O.S. 7838
Defendant forfeits Sixth Amendment right to confront witness when
judge determines defendant's wrongful act made witness unavailable,
and defendant committed act intending to prevent witness from
testifying. California erred in admitting statement of murder victim
at the trial for the murder without examining the defendant's intent
at the time of the killing. Majority noted that nontestimonial
statements, which are barred only by ordinary hearsay rules, may still
have a forfeiture by wrongdoing exception that does not require the
same intent.
BAIL - FEDERAL - OFFENSE OF FAILING TO APPEAR
United States v. Locklin (9th Cir. 6/25/08, 07-50187) 08 C.D.O.S. 7872
To establish a violation of 18 U.S.C. § 3146, the government
ordinarily must prove that the defendant (1) was released pursuant to
Title 18, Chapter 207 of the U.S. Code, (2) was required to appear in
court, (3) knew that he was required to appear, (4) failed to appear
as required, and (5) was willful in his failure to appear. Government
does not have to prove underlying offense. But in order to impose
sentence longer than one year, underlying offense must be a felony,
and that must be presented to the jury.
FOREIGN-SENTENCED PRISONERS - DUE PROCESS CHALLENGE
United States v. Tsui (9th Cir. 6/25/08, 07-30467) 08 C.D.O.S. 7869
United States Parole Commission properly ruled that supervised
release on American' citizen's South Korean conviction and sentence
would continue through the expiration of 60-month sentence.
Administering state (here, U.S.) was bound by legal nature and
duration of sentence as determined by sentencing state, under Council
of Europe Convention on the Transfer of Sentenced Persons ("Treaty"),
35 U.S.T. 2867, T.I.A.S. No. 10824 (July 1, 1985).
DEATH PENALTY - NOT FOR RAPE OF CHILD WHO DOES NOT DIE
Kennedy v. Louisiana (U.S. Sup. Ct. 6/25/08, 07-343) 08 C.D.O.S. 7913
Eighth Amendment barred Louisiana from imposing death penalty for
rape of achild where crime did not result, and was not intended to
result, in death of victim. "When the law punishes by death, it risks
its own sudden descent into brutality, transgressing the
constitutional commitment to decency and restraint." (Kennedy, J., for
majority). Alito, Roberts, Scalia and Thomas dissent (surprise,
surprise).
SENTENCING - FEDERAL - DETERMINATION OF PRIOR OFFENSE
United States v. Taylor (9th Cir. 6/26/08, 06-30580) 08 C.D.O.S.
District court properly considered state intermediate appellate court
decisions in determining whether defefendant's attempted armed robbery
conviction was a categorical crime of violence.
EVIDENCE - PORNOGRAPHIC MAGAZINES IN CHILD RAPE/MURDER
People v. Page (Ca. Sup. Ct., 6/26/08, S065707) 08 C.D.O.S. 7980
Court suggests without deciding that admission of adult pornographic
magazines in child rape/murder was error, but finds it non-prejudicial
(death penalty case).
JURY SELECTION - BATSON/WHEELER
People v. Davis (C.A. 3rd, 6/26/08, C054129) 08 C.D.O.S. 8018
Trial court properly evaluated prosecutor's reasons for excusing two
African-American women from jury, and did not err in concluding that
reasons were proper. Prosecutor kicked one juror off because she
arrived late and seemed "dazed," and another one, a certified nursing
assistant, because the prosecutor's father had had bad experiences
with them in his nursing home. Held, the reasons had nothing to do
with race.
DEFENSES - INVOLUNTARY INTOXICATION DUE TO PRESCRIPTION DRUGS
People v. Holloway (C.A. 5th, 6/25/08, F053408) 08 C.D.O.S. 8030
Tuolumne County Judge Eric L. DuTemple prejudicially erred by
refusing to give involuntary intoxication instruction in case where
defendant voluntarily took prescription drugs but was unaware that
they could cause him to become unconscious but still be able to drive.
"On retrial, CALCRIM No. 3427 should be modified to provide that a
person can be involuntarily intoxicated if he or she knowingly
ingested a prescription medication but did not know or have reason to
anticipate its intoxicating effects."
CIVIL RIGHTS - FORCING PERSON TO PAINT OVER POLITICAL MESSAGES
Fogel v. Collins (9th Cir. 6/27/08, 06-15395) 08 C.D.O.S. 8121
Plaintiff's First Amendment rights were violated when Grass Valley
police officers forced him to paint over political statements on his
van, but officers entitled to qualified immunity because in 2004 "no
case had a court held on identical or closely comparable facts that
the speech was protected by the First Amendment." City entitled to
summary judgment because the police action was not attributable to a
policy or custom.
Ed. Note: Oh, spare me! Even the DHS considered the guy a "local
nut." These cops couldn't possible believe the statements amounted to
terrorist threats.
COUNSEL - INEFFECTIVE ASSISTANCE - NOT FOUND
Brown v. Uttecht (9th Cir. 6/27/08, 04-35998) 08 C.D.O.S. 8107
On remand from Supreme Court, majority of circuit panel rules that
defense counsel's performance was not deficient. "With the aid of an
investigator, a social worker and a mitigation specialist, Brown's
three experienced attorneys put on a thorough mitigation case during
the penalty phase of Brown's trial. They (1) created a 250-page life
chronology detailing Brown's social and medical history, and presented
most of this information at trial; (2) introduced evidence that Brown
had a mental disorder; (3) called Dr. Maiuro, a clinical psychologist;
and (4) called multiple character witnesses, such as family members."
Counsel did not fail to investigate defenses, but made choices: "We
can't say that trial counsel weighed them in an irrational or
unprofessional manner or even that they made the wrong choice."
SENTENCING - CUNNINGHAM - AGGRAVATORS BASED ON RECIDIVISM
People v. Towne (Ca. Sup. Ct., 6/26/08, S125677) 08 C.D.O.S. 8005
Aggravating circumstance that defendant served prior prison term or
was on probation or parole, and that prior performance on probation or
parole was unsatisfactory could be made by judge and need not be
decided by jury. (Cunningham v. California (2007) 549 U.S. 270.)
SENTENCING - CONSIDERING FACTS IMPLICITLY FOUND NOT TRUE BY JURY
People v. Towne (Ca. Sup. Ct., 6/26/08, S125677) 08 C.D.O.S. 8005
Disapproving People v. Takencareof (1981) 119 Cal.App.3d 492, 498,
court holds that trial court could consider, when exercising
discretion to select among terms of imprisonment, facts implicitly
found not true by jury, who acquitted defendant of charges based on
those facts. Accord, United States v. Watts (1997) 519 U.S. 148, 157.
"Because in the present case other aggravating factors rendered
defendant eligible for the upper term, the judge's consideration of
evidence of conduct underlying counts of which defendant was
acquitted, in selecting the sentence, did not implicate defendant's
constitutional rights to a jury trial or to proof beyond a reasonable
doubt."
WEAPONS - CONSTITUTIONAL RIGHT TO BEAR ARMS
District of Columbia v. Heller (U.S. Sup. Ct. 6/26/08, 07-290) 08
C.D.O.S. 8060
Prohibition on possession of usable handguns in the home violates the
Second Amendment to the Constitution. The amendment's textual elements
"guarantee the individual right to possess and carry weapons in case
of confrontation." Court notes that "the Second Amendment does not
protect those weapons not typically possessed by law-abiding citizens
for lawful purposes, such as short-barreled shotguns." Requirement
that firearms be kept inoperable inside homes "makes it impossible for
citizens to use them for the core lawful purpose of self-defense and
is hence unconstitutional." Court does clarify that "Although we do
not undertake an exhaustive historical analysis today of the full
scope of the Second Amendment, nothing in our opinion should be taken
to cast doubt on longstanding prohibitions on the possession of
firearms by felons and the mentally ill, or laws forbidding the
carrying of firearms in sensitive places such as schools and
government buildings, or laws imposing conditions and qualifications
on the commercial sale of arms."
SEARCH & SEIZURE - DETENTION OF PERSON ARRIVING AT REMOTE MARIJUANA FARM
United States v. Davis (9th Cir. 6/30/08, 07-30226) 08 C.D.O.S. 8225
Law enforcement officers did not violate Fourth Amendment by
questioning and searching person who arrived, driving through locked
gate, and admitted to knowing "everything" about marijuana operation,
while search warrant being served on marijuana farm in rural Oregon.
SEARCH & SEIZURE - PROBABLE CAUSE PAROLEE LIVED IN HOME
United States v. Mayer (9th Cir. 6/30/08, 07-30274) 08 C.D.O.S. 8232
Law enforcement officers had probable cause to believe searchable
parolee lived in house. He had lived there before, and they had
received two anonymous calls saying he was back.
EXTRADITION - ARREST OF MEXICAN NATIONAL IN MEXICO
People v. Salcido (Ca. Sup. Ct., 6/30/08, S018814) 08 C.D.O.S. 8239
Even if Mexican national had been abducted from Mexico by American
law enforcement in violation of treat, it would not preclude
prosecution.
PRIOR ACTS - OF ABUSE TO DISPEL ACCIDENT DEFENSE
People v. Whisenhunt (Ca. Sup. Ct., 6/30/08, S056997) 08 C.D.O.S. 8269
Prior acts of abuse properly admitted under Evidence Code section
1101, subdivision (b) and Evidence Code section 352, to counter
defendant's accident defense. "The prosecution’s burden of proving all
the elements of the charged offenses included the threshold showing
that the acts that caused Kesha’s death were performed intentionally
rather than accidentally, and defendant’s prior acts of violence
against other children were relevant to proving this."
DISCOVERY - PITCHESS - INCOMPLETE RECORD REQUIRES REVERSAL
People v. Wycoff (C.A. 2nd, 6/30/08, B198572) 08 C.D.O.S. 8299
Appellate court reviewed sealed transcript of in camera Pitchess
hearing, and found it "insufficient for us to determine whether the
trial court properly exercised its discretion ...." Custodian did not
submit complete records and did not state what other documents not
presented were included in the complete personnel record and did not
explain decision to withhold them. In addition to the failure to
present the whole file or to make the required representations,
neither the documents presented nor the summaries the custodian made
were included in the sealed transcript. The trial judge was James Pierce.
FRAUD - USE OF ANOTHER'S DRIVER'S LICENSE - CONVICTION FOR EACH USE
People v. Mitchell (C.A. 3rd, 6/26/08, C052649) 08 C.D.O.S. 8306
Each use of the same identifying information for unlawful purpose
(Penal Code section 530.5, subdivision (a) constituted a separate
offense. "A single theft of personal identifying information and use
of that information to obtain property will not immunize the thief
from prosecution for subsequent uses of the information to obtain
other property."
APPEALS - INEFFECTIVE ASSISTANCE OF COUNSEL - FAILURE TO DEVELOP
ARGUMENT
People v. Mitchell (C.A. 3rd, 6/26/08, C052649) 08 C.D.O.S. 8306
"In the present matter, after setting forth the basic standard for
ineffective assistance, defendant’s argument consists of the
following: 'Since there is a reasonable probability that verdicts more
favorable to [defendant] would have resulted if [defendant]’s counsel
had acted in a reasonably competent manner by objecting to the
erroneous instructions, this court should consider the instructional
arguments raised herein, and reverse [defendant]’s convictions on
counts 3, 8, 9, 12, 16, 17, 18, 21, 23, 25, 28–46, 49 and 50. (In re
Sixto (1989) 48 Cal.3d 1247, 1257; Strickland v. Washington, supra,
466 U.S. at p. 694.)'
"This argument does not even attempt to explain how counsel’s failure
to object fell below an objective standard of reasonableness or how
the failure to object resulted in prejudice. We will not address a
claim that defendant has failed to develop. (People v. Tafoya (2007)
42 Cal.4th 147, 196, fn. 12; People v. Turner (1994) 8 Cal.4th 137,
214, fn. 19.) In this instance, defendant’s argument merely presumes
counsel’s failure to object fell below an objective standard of
reasonableness and she was prejudiced thereby. Defendant also neglects
to argue how there could be no satisfactory explanation for counsel’s
failure to object. This will not suffice."
