July 3, 2008 Reasonable Doubts

SEX OFFENSES - FEDERAL - IMPORTATION OF MINOR ALIEN FOR PROSTITUTION
United States v. Byun (9th Cir. 7/1/08, 07-10254) 08 C.D.O.S. 8371
Guilty plea to 8 U.S.C. section 1328, "importation of alien for 
prostitution" is a sex offense subject to Walsh Act registration 
requirements. It is a "specified offense against a minor."

WEAPONS - FELON IN POSSESSION - PRIORS REDUCED TO MISDEMEANORS
People v. Lewis (C.A. 3rd, 6/30/08, C055322) 08 C.D.O.S. 8402
Oregon offenses reduced to misdemeanors after successful completion 
of probation were not felonies for purposes of Penal Code section 
12021, subdivision (a). Siskiyou County Assistant District Attorney John H. 
Quinn loses before the trial court and loses again in the court of 
appeal. Court rejects his argument that because defendant would have 
been a felon in Oregon, he is a felon in California. Full faith and 
credit clause does not apply when offense committed in California. See 
also People v. Gilbreth (2007) 156 Cal.App.4th 53, 55.

SENTENCING - FEDERAL - NOTICE REQUIREMENT
United States v. Evans-Martinez (9th Cir. 7/2/08, 05-10280) 08 
C.D.O.S. 8427
Sentencing Guidelines (Fed. R. Crim. P. 32(h)) requires district 
court provide notice of potential it will depart guidelines range. 
This requirement survives United States v. Booker, 543 U.S. 220 
(2005). Reversed and remanded.

SENTENCING - FEDERAL - USE OF STATISTICAL STUDY OF RECIDIVISM
United States v. Warr (9th Cir. 7/2/08, 07-30125) 08 C.D.O.S. 8430
District court did not commit plain error by relying at sentencing 
hearing on statistical study about recidivism by young offenders 
without providing advance notice to defendant. The judge should have 
given advance notice, but it was harmless, as the court relied on the 
study "solely for the well-known, common sense proposition that 
younger offenders are more likely to recidivate."

CIVIL RIGHTS - L.A. SHERIFF'S VIOLATION
Center for Bio-Ethical Reform Inc. v. Los Angeles Sheriff's 
Department (9th Cir. 7/2/08, 05-55294)
Application of Penal Code section 626.8 by L.A. Sheriff to prevent 
plaintiffs from expressing anti-abortion views by driving truck with 
large graphic images of aborted fetuses on public streets bordering a 
middle school constituted violation of First Amendment rights. Penal 
Code section 626.8 cannot be constitutionally applied to bar the 
conduct. Panel stops short of declaring the provision unconstitutional 
because California cases have interpreted it narrowly so as not to 
apply to plaintiffs' conduct. The disruptions caused by plaintiffs' 
conduct were a result of the students' reaction to the message, not to 
the speakers' actions. (Tinker v. Des Moines Indep. Cmty. Sch. Dist., 
(1969) 393 U.S. 503, 508.) Individual officers had qualified immunity 
because there were no cases determining whether section 626.8 applied 
to this conduct.
But 75-minute detention at scene and search of truck and car 
following it violated Fourth Amendment. "Much of the detention time 
was spent waiting for the Deputy Sheriffs’ supervisor to come to the 
scene to assist with this novel situation. But once it became clear 
that no Vehicle Code violations had taken place, the Deputy Sheriffs 
were no longer authorized to detain Plaintiffs based on a reasonable 
suspicion that any particular crime had been committed. Instead, the 
Deputy Sheriffs continued to detain plaintiffs because they were 
waiting for their supervisors to help them figure out whether any 
crime had been committed." Officers not entitled to qualified immunity 
on Fourth Amendment issues: "The deputies’ constitutional duty to act 
diligently and pursue a means of investigation likely to confirm or 
dispel their suspicions quickly was clearly established on the date of 
the detention in this case."

ASSAULT - "AWARENESS ELEMENT" INSTRUCTION
People v. Miller (C.A. 2nd, 7/2/08, B201134) 08 C.D.O.S. 8461
Los Angeles County Judge Joan Comparet-Cassani does it again (err, 
that is). Jury asked if assault had an "awareness element," that is, 
whether the defendant had to be aware of her actions. Judge answered 
yes, which was instructional error and required reversal. "It is error 
of constitutional dimension for the court to remove an essential 
element of a crime from the jury’s consideration by its response to a 
question posed during deliberations. (People v. Sakarias (2000) 22 Cal.
4th 596, 623–625.)" Even though a defendant need not have a specific 
intent to cause injury, the judge's answer "permitted the jury to find 
appellant guilty of assault without considering whether she was aware 
of facts that would lead a reasonable person to realize that physical 
force would be applied to [the victim]. This represented clear error 
under the Supreme Court’s holding in People v. Williams (2001) 26 Cal.
4th 779. Reversal required.
The court of appeal then proceeds to "provide direction to the trial 
court" in the event of a retrial, correcting a number of other errors 
she committed.

PRIORS - FAILURE TO HOLD COURT TRIAL BEFORE SENTENCING
People v. Miller (C.A. 2nd, 7/2/08, B201134) 08 C.D.O.S. 8461
Los Angeles County Judge Joan Comparet-Cassani "failed to conduct a 
hearing, receive any evidence or make any findings concerning the 
alleged prior," but nevertheless sentenced defendant as if she had a 
prior conviction. Held, "the sentence imposed was legally unauthorized 
and must be reversed."

EVADING PEACE OFFICER - INSUFFICIENT EVIDENCE OF STATUS
People v. Miller (C.A. 2nd, 7/2/08, B201134) 08 C.D.O.S. 8461
Prosecutor failed to establish all elements of evading peace officer 
because he presented no evidence to support that the pursuing officer 
was a peace officer.