ElectricLawyer

Case Summaries

Civil commitment - findings require jury trial

People v. Sweeney (4th Dist., 6/24/09, E043410) ___ Cal.App.4th  ___

Riverside Superior Court Judge Carl E. Davis violates due process rights of Welfare & Institutions Code section 6500 commitee (mentally retarded and dangerous) and improperly instructed the jury, when he determined that the findings that the underlying charges involved violence was a question of law, and not a question for the jury. Decision follows teachings of People v. Figueroa (1986) 41 Cal.3d 714 and People v. Hedgecock (1990) 51 Cal.3d 395.

Death penalty - no reversible IAC

Bible v. Ryan (9th Cir., 7/1/09, 07-99017) ___ F.3d  ___

Regardless of deficiencies in mitigation case investigation by defense counsel, significant mitigation evidence was presented and the speculative evidence counsel might have introduced could not have outweighed the "powerful aggravating circumstances" surrounding child's rape and murder. Arizona court's determination that petitioner did not suffer prejudice was not unreasonable.

Drugs - medical marijuana

County of Butte v. Superior Court (Williams) (3rd Dist., 7/1/09, C057152) ___ Cal.App.4th  ___

Proposition 215 (Compassionate Use Act -- medical marijuana) and Medical Marijuana Program Act (MMPA) allow for civil action for Butte County deputy's act of ordering qualified medical marijuana grower to destroy his plants. Majority disagrees with Justice Morrison's argument that federal law prohibits marijuana possession and reigns supreme. The propriety of the deputy's conduct is measured by California, not federal, law.  See also City of Garden Grove v. Superior Court (2007) 157 Cal.App.4th 355 (motion for return of illegally seized marijuana granted).

False evidence - unaltered photograph

People v. Bamberg (1st Dist., 6/30/09, A120767) ___ Cal.App.4th  ___

Mr. Andrew Bamberg gets the "What was he thinking" award. In contesting a traffic citation for failing to stop at a sign, he introduced a photo of an intersection that did not have a stop sign. Unfortunately, the photo portrayed a different intersection. He was convicted of perjury, preparing false evidence and concealing or destroying evidence. He appealed the false evidence count, a violation of Penal Code section 134. The appellate court found that the evidence was "false," even if the unaltered photographs portrayed a real intersection, since they "depicted something other than what appellant claimed they showed."   How was Mr. Bamberg's little ploy discovered? The traffic commissioner had drive through the intersection in the photo five days a week for five years. A cop sitting in the courtroom went to the intersection and found the signs had been changed. The commissioner found Bamberg guilty but took no further action. Bamberg appealed, and prepared a settled statement that included new photographs. The commissioner caught him. Bad went to worse and the felony prosecution followed.

Habeas corpus - federal - reversal of habeas dismissal

Phelps v. Alameida (9th Cir., 6/25/09, 07-15167) ___ F.3d  ___

You can see the reversal coming when the opinion starts out by condemning the procedural hurdles of the modern habeas process and then states, "It is, however, very unusual for an individual who meticulously has overcome each of those procedural hurdles to sit in prison for more than a decade nonetheless, without ever being heard on the substance of his petition. That, however, is exactly what has happened to Kevin Phelps." It appears that the only problem with Phelps' petition is that he correctly foresaw legal decisions before they were decided.

Speaking for a unanimous panel (Bright and Tashima), Judge Reinhardt says: "Phelps' case represents the epitome of our obsession with form over substance."

Habeas corpus - state - Vienna Convention argument in successive petition

In re Martinez (Ca. Sup. Ct., 6/29/09, S141480) ___ Cal.4th  ___

In light of Medellin v. Texas (2008) 552 U.S. ___, 128 S.Ct. 1346, California Supreme Court holds that petitioner was precluded from renewing Vienna Convention claim because he had previously raised it in his first habeas petition and the claim had been denied on the merits. Petition is successive and he failed to demonstrate any change in circumstances. Petitioner had cited the International Court of Justice's decision in Avena and Other Mexican Nationals (Mexico v. U.S.) 2004 I.C.J. 12 (Judgment of Mar. 31), but did not argue it.

Hearsay - criminalist report violates Sixth Amendment

Melendez-Diaz v. Massachusetts (U.S. Sup. Ct., 6/25/09, 07-591) ___ U.S. ___

In the answer to "what did you think we were trying to say when we decided Crawford v. Washington," Court majority (Scalia, Stevens, Souter, Thomas, Ginsburg) rules that admitting certificates of state laboratory analysts reporting on test results violates Sixth Amendment confrontation clause.

Priors - Three Strikes - misdemeanor punished as felony not "serious"

People v. Ulloa (2nd Dist., 6/26/09, B201072) ___ Cal.App.4th  ___

Misdemeanor punished as felony under Penal Code section 186.22, subdivision (d) is not a "serious felony" under Penal Code section 1192.7, subdivision (c)(28).

Sexually violent predators - statutory scheme constitutional

People v. Johndrow (3rd Dist., 7/1/09, C055620) ___ Cal.App.4th  ___

Amendments to SVP Act, Welfare & Institutions Code section 6600 et seq. permitting indeterminate terms are constitutional. Court erred in not allowing defendant to testify against his counsel's wishes, but error harmless beyond reasonable doubt. C.f., People v. Allen (2008) 44 Cal.4th 843 (SVP defendant has constitutional right to testify against counsel's wishes).

Speedy trial - remoteness of Indio court

People v. Hajjaj (4th Dist., 6/29/09, D054754) ___ Cal.App.4th  ___

When on last day to be brought to trial, a court is available in a remote branch of the county, which prevents parties and counsel from appearing that day, physical remoteness constitutes good cause to delay trial for one day.

Three Strikes - juvenile priors are valid

People v. Nguyen (Ca. Sup. Ct., 7/2/09, S154847) ___ Cal.4th  ___

U.S. Constitution allows use of prior juvenile adjudication to increase maximum sentence for adult felony based upon prior juvenile adjudication even though juveniles are denied jury trials. Kennard dissents.

Case Summaries

Civil rights - police withholding exculpatory evidence

Tennison v. City and County of San Francisco (9th Cir., 12/8/08, 06-15426) ___ F.3d  ___

Former San Francisco Police Inspectors Napoleon Hendrix and Earl Sanders (later Chief of Police) were not entitled to qualified or absolute immunity after withholding exculpatory evidence that resulted in plaintiffs serving 13 years in prison for a crime they did not commit. Brady v. Maryland imposes a duty upon both prosecutors and police officers to disclose exculpatory evidence. Just placing it in the file is not enough. "Evidence that a person, known to the officers, has told the officers that they have arrested the wrong people, has identified the people involved, including the shooter, and described the cars and the chase in a manner consistent with the evidence, should not have been buried in a file, but should have been made known to the prosecutor." Additionally, the inspectors were not acting in an "advocacy role" when they withheld a third party's confession. 

Drugs - insufficient evidence of conspiracy

United States v. Tran (9th Cir., 6/24/09, 07-30270) ___ F.3d  ___

Although co-defendant's plea agreement was admissible as prior inconsistent statement to impeach co-defendant's trial testimony that was favorable to defendant, "the evidence was insufficient to show that [defendant] had even a slight connection to the conspiracy." The government's proof was "only amounts to" the defendant's presence as a passenger in a car containing large amounts of marijuana in the trunk, and defendant's knowledge of marijuana distribution tactics, admitted only to show knowledge.

Homicide - natural consequence of target assault

People v. Medina (Ca. Sup. Ct., 6/22/09, S155823) ___ Cal.4th  ___

Shooting death of victim was reasonably foreseeable consequence of assault by gang members on another gang, and murder convictions of non-shooters affirmed. 

Joinder - of counts at defense request

People v. Butler (Ca. Sup. Ct., 6/18/09, S055501) ___ Cal.4th  ___

Trial court did not abuse discretion in refusing to join, at defense request, unrelated murder counts. Argument for joinder request was that prosecutor was keeping counts separate in order to have two opportunities to obtain death penalty based on same set of fact. The joinder would have required a severance of defendants on the second murder count and the uncertainty, complication and delay arising from the situation justified the denial of the motion. See Penal Code section 954. 

Juveniles - commitment to DJF

In re M.B. (5th Dist., 6/18/09, F055289) ___ Cal.App.4th  ___

Welfare & Institutions Code section 733 allows juvenile court to commit ward to Division of Juvenile Facilities (formerly CYA) for probation violation, where offense for which probation granted was a DJF-eligible offense and no petition alleging a more recent non-DJF-eligible offense had been sustained.

Parole - hold past release date

In re Hovanski (3rd Dist., 6/19/09, C059192) ___ Cal.App.4th  ___

Welfare & Institutions Code section 6601.3, which permits Board of Parole Hearings to order inmate referred to Department of Mental Health for evaluation as potential sexually violent predator allows a hold, placed on the last day before parole discharge date, which results in inmate being incarcerated past his parole discharge date. 

Rape - foreign object prohibition on probation

People v. Valdez (4th Dist., 6/19/09, E045289) ___ Cal.App.4th  ___

Prohibition in Penal Code section 1203.065 to grant of probation to those convicted of rape with foreign object does not violate equal protection even though persons convicted of spousal rape may be granted probation. Court finds that because spousal rape may result in the birth of a legitimate child, and that is a legitimate reason for granting the father probation. Also, there may be a likelihood of greater injury in rape with foreign object. Distinguishes People v. Hofsheier (2006) 37 Cal.4th 1185.

Search & seizure - forcible DNA taking

Friedman v. Boucher (9th Cir., 6/23/09, 05-15675) ___ F.3d  ___

Las Vegas Metropolitan Police Detective Dolphus Boucher, acting with the approval of Clark County Deputy District Attorney Elissa Luzaich, violated plaintiff's Fourth Amendment rights by forcibly taking a DNA sample, without warrant or court order, just in order to put it into a cold case databank. "In short, no reasonable detective or prosecutor could have thought that they could forcibly take a DNA sample ... without violating ... Fourth Amendment rights."

Statute of limitations - home equity sales fraud

People v. Shetty (2nd Dist., 6/18/09, B205061) ___ Cal.App.4th  ___

Conviction by plea to misdemeanor count of home equity sales fraud (Civil Code sec. 1695.8) not barred by statute of limitations. Offense is "wobbler" (alternative felony/misdemeanor), so applicable statute of limitations is the felony term of four years, because it is a crime involving fraud, under Penal Code section 801.5 and 803, subdivision (c), even though the specific section is not listed in section 803, subdivision (c)(1)-(11). Enumerated offenses are illustrative only.

Voir dire - limitations on asking about penalty phase

People v. Butler (Ca. Sup. Ct., 6/18/09, S055501) ___ Cal.4th  ___

Trial court did not abuse discretion in refusing to allow defense counsel to ask about a killing that would be introduced as aggravating evidence in penalty phase. A defendant cannot insist upon questions that are so specific that they expose jurors to the facts of the case.

Note: counsel might have been able to ask the question as a hypothetical.

Case Summaries

Appeals - challenge to certificate requirement

People v. Hodges (3rd Dist., 6/9/09, C059391) ___ Cal.App.4th  ___

Penal Code section 1237.5 and Cal. Rule of Court 8.304(b) requirement of certificate of probable cause to appeal following guilty plea does not violate federal due process and equal protection rights, even if the defendant suffers from mental deficiencies, because defendants only need to ask for guidance from trial counsel. Preparing request for certificate of probable cause is part of trial counsel's duty to file notice of appeal. (People v. Ribero (1971) 4 Cal.3d 55, 66.)

Fraud - sufficiency of evidence

People v. Aldana et al. (4th Dist., , G040320) ___ Cal.App.4th  ___

Evidence insufficient to support Penal Code section 424, subdivision (a)(3) convictions (prohibiting those charged with control over public moneys from keeping false accounts). Timesheets signed by supervisor did not accurately reflect employee's hours, though prosecutor admitted employee actually worked more hours than he was paid. Employee was not "officer of state ... [or] person charged with" keeping public moneys. Evidence of supervisor's guilty knowledge insufficient under "well-settled Supreme Court precedent" (People v. Salas (2006) 37 Cal.4th 196.

Ed. Note: Something's strange here. The supervisor worked 16 hours a day, seven days a week and turned a hospital around financially. The employee, a doctor, was paid only $81.88 an hour and was available to the supervisor 24 house a day, seven days a week. So why did the Riverside County DA prosecute them? Even the AG conceded the evidence of guilty knowledge was insufficient.

Racketeering - structure of the association

Boyle v. United States (U.S. Sup. Ct., 6/8/09, 07-1309) ___ U.S. ___

Instructions that told jurors they had to find existence of enterprise that is separate from pattern of racketeering activity was correct. Existence may be proved by what enterprise does, rather than abstract analysis of structure. See United States v. Turkette (1981) 452 U.S. 576.

Robbery - attempted robbery evidence insufficient

People v. Ugalino (3rd Dist., 6/9/09, C055469) ___ Cal.App.4th  ___

Defendant could not be convicted of attempted robbery of person who did not have actual or constructive possession of property taken. Compare, People v. Gordon (1982) 136 Cal.App.3d 519 (parents had ownership and residence of house where adult son's drugs were kept, so could be victims of robbery).

Sentencing - 78 to life not cruel or unusual

People v. Haller (3rd Dist., 6/9/09, C056282) ___ Cal.App.4th  ___

Sentence of 78 years to life under Three Strikes, following multiple convictions of criminal threats, stalking, and assault upheld against challenge of cruel or unusual punishment. See People v. Superior Court (Romero) (1996) 13 Cal.4th 497.

Sexually violent predators - mandate to conduct psych exam

Moore v. Superior Court (2nd Dist., 6/4/09, B198550) ___ Cal.App.4th  ___

As matter of constitutional due process, a defendant cannot be subjected to trial as alleged sexually violent predator while mentally incompetent. Los Angeles Superior Court Judge Marcelita Haynes is mandated to order psych exam to determine if defendant is incompetent. 

Case Summaries

Habeas corpus - state - evidence of innocence

In re Ebaniz (5th Dist., 6/3/09, F054696) ___ Cal.App.4th  ___

Petitioner presented newly discovered evidence (testimony of witness that petitioner had been forced to participate in crime) that showed innocence.

Habes corpus - federal - failure to hold evidentiary hearing

Scott v. Schriro (9th Cir., 6/2/09, 05-99012) ___ F.3d  ___

In per curiam opinion, Ninth Circuit panel led by Judge Kozinski reverses Arizona District Court Judge Paul Rosenblatt's denial of habeas petition, which alleged ineffective assistance of counsel. The Arizona state court had not relied upon an adequate state bar, consistently applied, when it denied Scott's petition for post-conviction relief on the grounds that he could not amend a pending petition, even though controlling Arizona precedent allowed such amendment. Therefore, the issue had been properly exhausted and Judge Rosenblatt had to conduct an evidentiary hearing.

Juveniles - discrepancy in order requires remand

In re H.D. (6th Dist., 6/3/09, H033462) ___ Cal.App.4th  ___

Discrepancy between court's oral pronouncement and written orders required remand for further proceedings.

Sex offender registration - no change in law

United States v. Ensminger (9th Cir., 6/3/09, 08-30183) ___ F.3d  ___

No error in refusing to allow defendant to withdraw guilty plea to failure to register as sex offender (18 U.S.C. section 2250(a)). Decision from Middle District of Florida invalidating statute in question as not being a valid exercise of the Commerce Clause, was not binding on Montana district court. A district judge's decision neither binds another district judge or even the judge herself.

Weapons - assault weapon not protected by Second Amendment

People v. James (3rd Dist., 6/2/09, C057995) ___ Cal.App.4th  ___

Possession of assault weapon, a violation of Penal Code section 12280, is not protected by Second Amendment as construed in District of Columbia v. Heller (2008) 554 U.S. ___, 171 L.Ed.2d 657. Court concludes that "... assault weapons, like machine guns, are not in common use by law-abiding citizens for lawful purposes and likewise fall within the category of dangerous and unusual weapons that the government can prohibit for individual use."

Case Summaries

Battery on custodial officer -

People v. Gutierrez (5th Dist., 5/28/09, F055925) ___ Cal.App.4th  ___

"Read literally, CALCRIM No. 2671 authorizes a custodial officer to use reasonable force in four situations -- 'to restrain a person, to overcome resistance, to prevent escape, or in self-defense' -- but erroneously limits to the first situation alone not only the prohibition against the defendant's use of force or any weapon to resist reasonable force but also the authorization of the defendant's use of reasonable force to defend against unreasonable or excessive force." Instruction is flawed, but does not require reversal under facts of this case because verdict was actually based on valid ground.

Confessions - no Miranda error

People v. Davis (Ca. Sup. Ct., 6/1/09, S056425) ___ Cal.4th  ___

Officer's failure to fill in the blank on one of the questions in the Miranda form did not invalidate Miranda waiver where defendant, who was "no stranger to the criminal justice system," orally waived rights and signed form.

Confessions - rescue doctrine exception to questioning

People v. Davis (Ca. Sup. Ct., 6/1/09, S056425) ___ Cal.4th  ___

Although ordinarily questioning must stop after a defendant unequivocally invokes right to counsel (McNell v. Wisconsin (1991) 501 U.S. 171), there is an exception for statements obtained in an attempt to rescue a still-living victim. For the "rescue doctrine" to be invoked, there must be a possibility of saving the victim's life. Here, even though victim had been missing 64 days, it was not unreasonable to believe she might have been kidnapped and was still alive, especially since at the time of the kidnapping, defendant told victim's friends he was doing it "for the money," i.e., for a ransom. There was no forensic evidence to suggest she was dead. Even if error, it was harmless beyond reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24.)

Expungement - consideration of post-probation conduct

People v. McLernon (2nd Dist., 5/29/09, B209952) ___ Cal.App.4th  ___

Consideration of post-probation conduct when deciding whether to expunge conviction is not precluded by Penal Code section 1203.4, but Los Angeles Superior Court Judge Thomas R. White failed to consider the motion on the merits, and therefore remanded was required. Judge White "rejected" the motion because it had been made before.

Forfeiture - failure to bring motion in connection with trial

People v. $10,153.38 in U.S. Currency (2nd Dist., 5/29/09, B205874) ___ Cal.App.4th  ___

DA's failure to bring forfeiture matter to trial in connection with criminal proceedings under Health & Safety Code section 11470 precludes entry of judgment in government's favor.

Juror misconduct - reading note from nonjuror to jury

People v. Davis (Ca. Sup. Ct., 6/1/09, S056425) ___ Cal.4th  ___

Although juror should not have read note to jury which had been sent by a nonjuror friend, it was not prejudicial "by any stretch of the imagination." The note did not refer to any extraneous evidence and was not inflammatory. It was simply a "pat on the back" for the jury's service.

Jury selection - Batson error not present

People v. Davis (Ca. Sup. Ct., 6/1/09, S056425) ___ Cal.4th  ___

Based on independent review, Court concludes that trial court did not err in ruling that defendant failed to make a prima facie case that prosecutor challenged five prospective jurors because they were Hispanic. Fact that three of the jurors were characterized as "Caucasian" "weakens any inference of group bias ...." Court cites People v. Cruz (2008) 44 Cal.4th 636, 655-657 (prosecutor's challenge to White but Spanish-surnamed juror was not based on group bias).
In any event, there were "obvious race-neutral" grounds for the challenges, including opposition to the death penalty, and in two cases, criminal records.

Mental defenses - reconsideration of capacity after Atkins

Bobby v. Bies (U.S. Sup. Ct., 6/1/09, 08-598) ___ U.S.  ___

No violation of double jeopardy for trial court to reconsider defendant's mental retardation after Atkins v. Virginia (2002) 536 U.S. 304 (holding Eighth Amendment bars execution of mentally retarded offenders).

Motion to vacate - invalid conviction

People v. Vasilyan (2nd Dist., 5/28/09, B205679) ___ Cal.App.4th  ___

Judgment entered in 1994 following admission to violating Penal Code section 422.7 was void, and motion to vacate brought in 2007 should have been granted. Penal Code section 422.7 is a penalty provision only and does not describe a substantive offense. (People v. Wallace (2003) 109 Cal.App.4th 1699; In re M.S. (1995) 10 Cal.4th 698, 725.) A conviction for a crime that does not exist cannot be affirmed, and court lacks fundamental jurisdiction.

Appellant was deported in 2004 based on the 1994 convictions.

Search & seizure - refusal does not create suspicion to pat search

In re H.H. (1st Dist., 4/30/09, A122799) ___ Cal.App.4th  ___

Minor's refusal to consent to search by itself cannot form the basis for reasonable suspicion to pat search for weapons or probable cause to search for evidence. (See Illinois v. Wardlaw (2000) 528 U.S. 119, 125 ["refusal to cooperate, withhout more, does not furnish the minimal level of objective justification needed for a detention or seizure"].)

Decision of Alameda County Superior Court Judge Paul Seeman reversed by unanimous Division 5 of First District.

Venue - change of

People v. Davis (Ca. Sup. Ct., 6/1/09, S056425) ___ Cal.4th  ___

Selection of Santa Clara County for transfer of notorious case (the Polly Klaas murder) was not abuse of discretion. Even though the experts' surveys all concluded that Santa Clara's potential jurors were more prejudiced than those in Los Angeles or San Diego, Santa Clara was the cheapest and most convenient. Hardship and conservation of funds are important factors that may be considered. (People v. Cooper (1991) 53 Cal.3d 771, 805.) Because it is impossible to control heightened media attention in any new venue, the ability of potential jurors to disregard media information is significant. Second change of venue from Santa Clara properly denied.

Weapons - evidence that weapon was stun gun

In re Brandon O. (1st Dist., 5/29/09, A123065) ___ Cal.App.4th  ___

In order to find minor culpable of assault with a stun gun or taser, it was not necessary to prove victim had been immobilized. Testimony that victim had been slowed down after the first assault and had to sit on the ground for a few seconds after the next assault was sufificient to show temporary immobilization. Expert testimony from police officer who was familiar with tasers though he had not received formal training.

Case Summaries

Credits - time spent in state hospital

People v. Bryant (2nd Dist., 5/22/09, B205295) ___ Cal.App.4th  ___

Defendant whose return from state hospital after Penal Code section 1370 commitment was delayed was entitled to conduct credits from time hospital staff reported he was competent to stand trial.

Fines and fees - fee on restitution fine

People v. Robertson (3rd Dist., 5/27/09, C058306) ___ Cal.App.4th  ___

Court may impose 10 percent administrative fee to cover county's cost of collecting a restitution fine imposed under Penal Code section 1202.4. AG conceded the issue but court of appeal did not accept concession.

Juveniles - federal - assault on Border Patrol officer

United States v. Juvenile Female (9th Cir., 5/27/09, 07-50549) ___ F.3d  ___

Assault involving deadly or dangerous weapon (here, small knife) is categorically a crime of violence so as to give federal court jurisdiction over minor arrested for assault on Border Patrol officer, but not at border. Officer was engaged in performance of duties when investigating drug trafficking crime.

Priors - federal enhancement - California Penal Code section 288(a)

United States v. Medina-Villa (9th Cir., 5/28/09, 07-50396) ___ F.3d  ___

Conviction for violating California Penal Code section 288(a) (lewd and lascivious act on child under 14) is "sexual abuse of a minor," qualifying as a "crime of violence" that warrants 16-level increase in sentence for attempted reentry after removal.

Resisting arrest - multiple convictions

People v. Hairston (3rd Dist., 5/26/09, C057504) ___ Cal.App.4th  ___

Conviction of three separate counts of resisting a police officer (Pen. Code sec. 148) proper when defendant fled from three officers, under the authority of Penal Code section 148, subdivision (e) (which court notes was not cited by either party). Concurrent sentences permissible because substantial evidence supported court's implicit determination that defendant had a separate objective for each violation -- to avoid arrest by each particular officer.

Search & seizure - package detention

United States v. Jefferson (9th Cir., 5/26/09, 08-30067) ___ F.3d  ___

Detention of express mail package, which had a contractually guaranteed time of delivery, did not violate Fourth Amendment. Possessory interest in package was not implicated because it does not take effect until such delivery time had passed, and here it had not. By the delivery time deadline, the drug-sniffing dog had established probable cause to seize the package.

Case Summaries

Discovery violations - hiding a witness' past

United States v. Price (9th Cir., 5/21/09, 05-30323) ___ F.3d ___

Once again, prosecutors manage to snatch defeat from the jaws of victory by hiding exculpatory evidence, here, the chief prosecution witness' history of run-ins with the law. The (unnamed) prosecutor in this case "utterly failed" to learn of favorable evidence known to the other members of the prosecutorial team (i.e., the police). (Kyles v. Whitley (1995) 514 U.S. 419, 437.) The trial court did not do much better. After hearing from the prosecutor, District Judge Michael W. Mosman nevertheless denied the new trial motion. Reversed.

Editor's note: maybe if the Ninth Circuit started publishing the prosecutors' names, they may clean up their acts. And what about reporting them to the State Bar as well?

Jury instructions - flight

People v. Paysinger (3rd Dist., 5/21/09, C059448) ___ Cal.App. 4th ____

CALCRIM 372 (flight instruction) is not unconstitutional and does not deprive a defendant of the presumption of innocence, right to jury trial, or proof beyond reasonable doubt.

Prior testimony - conditional examination testimony

People v. Cadogan (4th Dist., 5/20/09, G040200) ___ Cal.App. 4th ___

Testimony obtained at conditional examination, of defendant's late wife was admissible even though defendant was incompetent at the time of the examination.

Case Summaries - May 21, 2009

Co-defendant's statements - erroneous admission prejudice standard
United States v. Nguyen (9th Cir., 5/15/09, 07-30197) 09 C.D.O.S. 5925
Admission of co-defendant's statements violated Sixth Amendment confrontation clause (Crawford v. Washington (2004) 541 U.S. 36, 43), and government failed to prove error was harmless beyond a reasonable doubt. It does not matter that it may have been the co-defendant's counsel, and not the prosecutor, who elicited the statement.

Confessions - Sixth Amendment violation; admissible
Kansas v. Ventris (U.S. Sup. Ct., 4/29/09, 07-1356) 09 C.D.O.S. 5197
Defendant's statements to jailhouse informant obtained in violation of Sixth Amendment admissible for impeachment after defendant testified.

Counsel - self-representation denial
People v. Watts (3rd Dist., 4/29/09, C056491) 09 C.D.O.S. 5235
Request for self-representation properly denied when defendant had previously shown he was unable or unwilling to abide by courtroom rules.

False immigration papers - statute not repealed by implication
People v. Valladares (4th Dist., 5/15/09, G039799) 09 C.D.O.S. 6033
Penal Code section 113, which punishes as a felony the manufacture, distribution and sale of false immigration documents was not repealed by implication by the passage of Penal Code section 112 (manufacture of false government document, a misdemeanor). The court harmonizes the provisions and holds that they give prosecutors the option of charging a felony or a misdemeanor.

Fines - consideration of other fines and assessments
People v. Castellanos (2nd Dist., 5/15/09, B210705) 09 C.D.O.S. 6023
Fine imposed by Penal Code section 1202.5 on theft-related convictions is subject to additional penalty assessments, the state surcharge, the state construction penalty, and other assessments. Therefore, when deciding whether the defendant has the ability to pay the fine, all the penalty assessments must be taken into consideration.

Justice Kriegler, in concurrence, points out that "that the increasing complexity of California’s system of fines, fees, and penalties has reached the point of having a negative impact on the administration of justice."

Editorial note: Amen! I would love to see statistics on how much money is actually collected from these assessements. I will bet dollars to doughnuts that the amount of time wasted by the courts dealing with these laws far outstrips any amount collected.

GBI enhancement - use of dogs
People v. Frazier (3rd Dist., 4/29/09, C057684) 09 C.D.O.S. 5228
Enhancement under Penal Code section 12022.7 for intentional infliction of great bodily injury proper when defendant inflicted the injury by instructing her dogs to attack the victim.

Habeas corpus - federal - presentation of issue
Farmer v. Baldwin (9th Cir., 4/29/09, 06-35635) 09 C.D.O.S. 5201
Petitioner properly presented issue to state court by incorporating by reference arguments made in intermediate appellate brief, because Oregon state rules permitted it.

Immigration consequences - Penal Code section 245(a)(1) conviction
United States v. Heron-Salinas (9th Cir., 5/20/09, 08-50276) 09 C.D.O.S. 6085
Deportation underlying charge of attempted re-entry was valid following conviction for violating Penal Code section 245(a)(1) (assault with firearm), as the statute defines a "crime of violence" and renders convicted person "an aggravated felon." Court does not hold that all assaults are necessarily crimes of violence, but the use of a firearm is enough to bring it within the federal definition contained in 18 U.S.C. section 16.

Jury instructions - failure to define "likely"
People v. Chaffin (4th Dist., 5/14/09, E046217) 09 C.D.O.S. 5936
Court's failure to define word "likely" in child endangerment statute (Pen. Code sec. 273a, subd. (a)) was not prejudicial, since factual question posed by omitted definition was resolved adversely to defendant in other properly given instructions.

Jury instructions - standard of prejudice
Byrd v. Lewis (9th Cir., 5/15/09, 06-15977) 09 C.D.O.S. 5918
State court's application of harmless error review to trial court's jury instructions that erroneously lowered burden of proof was not unreasonable application of clearly established Supreme Court precedent. Denial of habeas petition affirmed.

Juveniles - dismissal of more recent petition
V.C. v. Superior Court (People) (3rd Dist., 5/19/09, C059050) 09 C.D.O.S. 6062
Sacramento County Judge Jane Ure abused her discretion in dismissing the most recently sustained petition for an offense which did not qualify for DJF (formerly CYA) commitment, in order to cause an earlier petition (for a qualifying offense) to become the most recent offense, and allow the judge to commit the minor to the state institution. Court grants a writ even though the order was appealable "to provide guidance to the bench and bar earlier than would be normal on an appeal."

Multiple convictions - carjacking and stolen property
People v. Magallanes (4th Dist., 4/29/09, G040133) 09 C.D.O.S. 5257
Defendant could not be convicted both of carjacking and receipt of stolen property because stolen property was same car taken during carjacking.

Pitchess - appellate reversal requires prejudice
People v. Gaines (Ca. Sup. Ct., 4/30/09, S157008) 09 C.D.O.S. 5281
Trial court's erroneous denial of Pitchess motion is not reversible per se. If error is found on appeal, matter is remanded for new Pitchess hearing. If review discloses discoverable material, the trial court must order disclosure, then permit defendant to show prejudice from failure to disclose, and order new trial if there was reasonable probability outcome would have been different had information been disclosed.

Priors - constitutional validity not submitted to jury
People v. Curl (Ca. Sup. Ct., 5/18/09, S034072) 09 C.D.O.S. 6008
Challenge to constitutional validity of underlying prior guilty plea that formed basis for special circumstance allegation did not have to be found by jury beyond reasonable doubt. Curl v. Superior Court (1990) 51 Cal.3d 1292 was not superseded by Apprendi v. New Jersey (2000) 530 U.S. 466.

Restitution - driving without license
In re Ashlie M. (3rd Dist., 4/8/09, C058043) 09 C.D.O.S. 5299
Restitution for victim's burial costs proper when minor's driving (without a license) was cause of accident resulting in victim's death.

Restitution - dismissed count
In re T.C. (3rd Dist., 4/8/09, C058834) 09 C.D.O.S. 5302
Probation condition that minor pay restitution for damages resulting from dismissed count proper even though minor had not entered waiver under People v. Harvey (1979) 25 Cal.3d 754. Rule is different for adults. (Pen. Code sec. 1192.3, subd. (b).)

Sanctions - description of conduct required
People v. Ward (Song) (2nd Dist., 5/20/09, B212432) 09 C.D.O.S. 6086
Before starting the trial, Los Angeles Superior Court Judge Patrick T. Madden warned both counsel not to make "speaking objections." In objecting to a line of questioning, defense counsel said, in front of the jury, that the prosecutor's actions constituted "misconduct." The court warned counsel not to accuse each other of misconduct in front of the jury. In closing, defense counsel argued to the jury that misconduct had occurred. After the trial, the judge imposed a sanction of $200 under section 177.5 for violating the court's order. The court of appeal found that although defense counsel violated a lawful order, the matter had to be remanded for the court to issue a written order reciting in detail the circumstances justifying the imposition of the sanction.

Self-representation - midtrial attempt to revoke
People v. Lawrence (Ca. Sup. Ct., 4/30/09, S160736) 09 C.D.O.S. 5285
When a defendant who has elected to represent himself (Faretta v. California (1975) 422 U.S. 806 seeks to revoke the waiver of counsel during trial, court must exercise discretion, considering the defendant's reasons against the delay or disruption of the process. Here, defendant who was being tried with a co-defendant failed to articulate a compelling reason for revoking waiver, and there would have been delay and disruption, so refusal to permit revocation was not abuse of discretion.

Sex registration - equal protection violation
People v. Ranscht (4th Dist., 5/15/09, D052811) 09 C.D.O.S. 6029
People v. Hofsheier (2006) 37 Cal.4th 1185, which holds that imposing sex registration requirement on offender convicted of voluntary oral copulation with 16-year old violates equal protection, applies to offender convicted of voluntary sexual penetration of 13-year-old, because similarly situated offender convicted of unlawful sexual intercourse with a victim of the same age would not be subject to registration. Disagrees with People v. Manchel (2008) 163 Cal.App.4th 1108.

Theft - false pretenses instruction inadequate
People v. Henning (3rd Dist., 4/29/09, C058105) 09 C.D.O.S. 5230
Corroboration instruction in CALCRIM 1804 instruction on theft by false pretenses is incorrect in failing to state that the writing accompanying the false promise must also be false. Error "manifestly" harmless in light of "abundant, indeed overwhelming" evidence.

Weapons - discharging enhancement
Dean v. United States (U.S. Sup. Ct., 4/29/09, 08-5274) 09 C.D.O.S. 5192
Enhancement for discharging firearm (18 U.S.C. section 924(c)(1)(A)(ii), (iii)) does not require proof defendant intended to discharge gun. Here, it looks like gun went off by accident while defendant was robbing a bank. No matter.

Reasonable Doubts - March 18, 2009

Appeals - superior court's clerk's responsibilities

People v. Grimes (3rd Dist., 3/17/09, C58369) 09 C.D.O.S. 3359

Appellate court rakes the Amador County Superior Court Clerk's Office over the coals for taking three years to send notification of the filing of a notice of appeal. The Appeals Clerk "stated that she had just discovered that this appeal, and two others, had been 'filed and forgotten,' and that defendant, who had received a two-year sentence, 'is more than likely out of prison by now.'" The court points out that the superior court is required to "promptly mail" the notification of the filing of a notice of appeal, and that the "failure of the court reporter or clerk to perform any duty imposed by statute or these rules that delays the filing of the appellate record is an unlawful interference with the reviewing court's proceedings ... ." (Cal. Rules of Court, rules 8.304(c)(1) and rule 8.23.)

Character evidence - poverty

People v. Maldonado (6th Dist., 3/16/09, H031506) 09 C.D.O.S. 3318

Though evidence of poverty ordinarily is not relevant, and may be prejudicial, here defendant's statement to police that he was unemployed was relevant to show he had a motive to sell drugs, and counsel's questioning revealing his poverty put defendant in a sympathetic light.

Coram nobis - ignorance of immigration consequences not grounds

People v. Kim (Ca. Sup. Ct., 3/16/09, S153183) 09 C.D.O.S. 3285

Writ of error coram nobis not available to challenge long-final conviction on grounds of ineffective assistance of counsel resulting in adverse immigration consequences. For one thing, he had another remedy: "... defendant could have petitioned for a writ of habeas corpus while he was still in actual or constructive state custody, that is, in prison or on parole." The petition was procedurally defective: it was not diligently filed, the defendant failed to avail himself of the remedy of habeas corpus (even though he was aware of the removal proceedings while still in custody), and the petition was successive and piecemeal. Claim also fails on the merits, as he did not show that some fact existed which, without fault or negligence on his part, was not presented to the trial court. Ineffective assistance of counsel is inappropriate ground for coram nobis relief. "Although an attorney has a constitutional duty at least not to affirmatively misadvise his or her client as to the immigration consequences of a plea (In re Resendiz (2001) 25 Cal.4th 230, 235, 240 (plur. opn. of Werdegar, J.); id. at p. 255 (conc. & dis. opn. of Mosk, J.)), any violation in this regard should be raised in a motion for a new trial or in a petition for a writ of habeas corpus. (See, e.g., People v. Bautista (2004) 115 Cal.App.4th 229 [issuing order to show cause on habeas corpus].) Nor does defendant in any event assert he was misadvised."

Counsel - ineffective assistance not excused due to caseload

In re E.S. (1st Dist., 3/11/09, A118547) 09 C.D.O.S. 3042

Deputy public defender filed a declaration stating that: 1) he needed more than a week to investigate information he received from appellant’s relatives that might lead to exculpatory evidence, but erroneously believed he was only entitled to a seven-day continuance; (2) his “excessive caseload” made it impossible to “thoroughly review and litigate each and every case” he was then litigating, including appellant’s case; (3) the Mendocino County Public Defender’s Office lacked an investigator and he was expected to conduct his own investigations, which was “all but impossible” in light of his heavy caseload; (4) he considered requesting an evaluation of appellant’s mental condition similar to that authorized by Penal Code section 288.1 but was told by the public defender that his office would not pay for one; (5) he did not ask the court to order and pay for such an evaluation because the court had told him a court-ordered evaluation would not be confidential; (6) he did not request a polygraph of appellant “because I know that the Courts will not pay for one and I knew from my conversations with the Public Defender that my Office would not pay for a polygraph”; and (7) he feared that “if I requested or attempted to demand funding for a polygraph for my client, my job would be jeopardized.” Public defender in county of disposition found plenty of exculpatory evidence. Court of Appeal finds first counsel's performance was deficient and and prejudiced the minor. Reversed.

Credits - time served not credited against parole term

In re Chaudhary (6th Dist., 3/13/09, H032794) 09 C.D.O.S. 3225

Additional time served after parole granted and governor reversed is not properly credited towards parole discharge eligibility requirement.

Drugs - Prop. 36 treatment after jury's finding of personal transportation

People v. Harris (4th Dist., 3/11/09, D052257) 09 C.D.O.S. 

Trial court imposed an unauthorized sentence by committing defendant to prison instead of granting him mandatory probation under Proposition 36 based on express jury finding that he transported the cocaine base for his personal use.

Evidence - that defendant refused to be photographed

People v. Garcia (3rd Dist., 2/25/09, C054729) 09 C.D.O.S. 3162

DA's introduction of evidence that defendant refused to be photographed by police violated defendant's Fourth and Fifth Amendment rights because defendant was terminating the interview. However, error harmless beyond a reasonable doubt (Chapman v. California (1967) 386 U.S. 18, 24) due to overwhelming evidence of other acts showing consciousness of guilt.

Habeas corpus - State - immigration detention not custody for habeas

People v. Villa (Ca. Sup. Ct., 3/16/09, S151561) 09 C.D.O.S. 3280

Because defendant was no longer in California custody as result of 1989 conviction, but was instead in federal custody in another state pending deportation, he was ineligible for habeas corpus relief because he was not "in custody."

Jurisdiction - to try defendant for felony on complaint

People v. Maldonado (6th Dist., 3/16/09, H031506) 09 C.D.O.S. 3318

Court had jurisdiction to try defendant on complaint deemed an information. Agrees with People v. Cartwright (1995) 39 Cal.App.4th 1123. Distinguishes People v. Smith (1986) 187 Cal.App.3d 1222, which was decided before trial court unification.

Search & seizure - length of police standoff

Fisher v. City of San Jose (9th Cir., 3/11/09, 04-16095) 09 C.D.O.S. 3010

Police did not violate constitutional rights by arresting defendant in his home without a warrant even though 12 hours elapsed while a standoff took place: "during such a standoff, once exigent circumstances justify the warrantless seizure of the suspect in his home, and so long as the police are actively engaged in completing his arrest, police need not obtain an arrest warrant before taking the suspect into full physical custody."

Search & seizure - no DA appeal following dismissal

People v. Gallagher (Super. Ct. App. Div., 1/30/09, JAD 09-02) 09 C.D.O.S. 3189

People are not entitled to appeal order granting motion to suppress evidence where, prior to filing appeal, misdemeanor case was dismissed pursuant to Penal Code section 1385 at DA's request. Correct procedure was to obtain stay of proceedings.

Sex offenses registration - sufficiency of evidence

People v. Williams (5th Dist., 3/12/09, F053858) 09 C.D.O.S. 3213

Appellant began “residing” in Madera when he returned there upon his release from parole. He had grown up there and had family there. He was assigned a parole agent there, and he attempted to register there, according to his testimony, even before seeing his assigned agent. In essence, appellant began “residing” in Madera at the same time he came into Madera. Thus, he was required and failed to register within the five working days allotted him. Court did not have duty to instruct on meaning of "working days," as it does not have a technical meaning peculiar to the law.

Sexually violent predators - hearsay in expert's testimony

People v. Dean (4th Dist., 3/11/09, E041513) 09 C.D.O.S. 3090

Out-of-court statements offered to support expert's opinion are not hearsay because they are not offered for the truth, but only to assess the value of the expert's opinion. (People v. Thomas (2005) 130 Cal.App.4th 1202, 1209-1210.) Here, the statements were not introduced under the guise of explaining the expert's reasons for the opinion, had been otherwise admitted, and were not prejudicial when introduced at defendant's SVP hearing.

Weapons - folding knife in multi-tool

In re T.B. (4th Dist., 3/17/09, G039990) 09 C.D.O.S. 364

"Multi-tool" possessed by minor on school grounds was a "folding knife with a blade that locks into place" and therefore violates Penal Code section 626.10, subdivision (a).

Reasonable Doubts - March 11, 2009

Extortion - insufficient evidence

United States v. McFall (9th Cir., 3/9/09, 07-10034) 09 C.D.O.S. 2860

Evidence to support attempted extortion and conspiracy to commit extortion insufficient to support 18 U.S.C. section 1951 convictions. To violate the Hobbs Act extortionist must  attempt to appropriate the victims's property. It is not enough to gain some speculative benefit by hindering a competitor.

"The charges against McFall concern corrupt profiteering among a group of state and local officials in San Joaquin County, California. The principal players are: Neat Allen Sawyer (“Sawyer”), a former prosecutor in the San Joaquin County District Attorney’s Office and, at the time of the events at issue, the Chief Deputy Director of the Governor’s Office of Criminal Justice Planning (“OCJP”), T. Baxter Dunn (“Dunn”), former Sheriff of San Joaquin County, Lynn Bedford (“Bedford”), former San Joaquin County supervisor, and McFall, a lobbyist and former member of the Board of Trustees of Water Reclamation District 17 (the reclamation district responsible for maintenance of a portion of the levees along the San Joaquin River)."

Guilty pleas - federal plea agreement

United States v. Streich (9th Cir., 3/9/09, 07-30105) 09 C.D.O.S. 2867

A criminal defendant who pled guilty may not challenge inclusion of information in pre-sentence report that might put him at risk of subsequent civil confinement, as the issue is not ripe. 

Government did not breach plea bargain by basing sentencing recommendation on uncharged conduct. Plea bargain is basically a contract between the government and a defendant and if the terms are clear and unambiguous the court will not look to extrinsic evidence. Government's promise not to "prosecute" did not extend to the sentencing recommendation. 

Immigration - possession of valid document by fraud

United States v. Krstic (9th Cir., 3/10/09, 08-30022) 09 C.D.O.S. 2957

Possession of valid "green card" obtained by making a false statement is a violation of 18 U.S.C. section 1546(a). The court uses the history of the statute to figure out its intent, since it could not figure it out just looking at the language of the statute.

Jury instructions - proposed modification of CALCRIM 226

People v. Vang (3rd Dist., 3/6/09, C058020) 09 C.D.O.S. 2792

No error to deny modification of CALCRIM 226 (standard instruction on witness credibility), which would have informed jury it could reject child molest victim's account if she testified inaccurately even though she did not deliberately lie.

Jury instructions - no conflict between motive and mental-state elements

People v. Fuentes (5th Dist., 3/6/09, F053785) 09 C.D.O.S. 2796

No conflict exists between CALCRIM 370 motive instructions and the mental-state elements of the substantive offense of criminal-street-gang participation or the sentence-enhancement and special-circumstance provisions related to criminal street gangs.

Parole - in-prison violations

In re Reed (1st Dist., 3/5/09, A118575) 09 C.D.O.S. 2778

Term "danger to society," as used in Parole Board regulations, permit parole denial to prisoner who demonstrates unwillingness or inability to adhere to reasonable conditions of parole. Here, prisoner received a write-up (CDC 128-A) in prison after the Board previously directed that he remain discipline-free.

Parole - in-prison minor violations

In re Palermo (3rd Dist., 2/11/09, C058030) 09 C.D.O.S. 2783

Minor prison violations not sufficient evidence to deny parole on basis of current danger to society. Prisoner had received three disciplinary write-ups in 20 years, and all were minor.

Search and seizure - traditional standards of reasonableness apply

United States v. Brobst (9th Cir., 3/9/09, 07-30284) 09 C.D.O.S. 2871

"Whether or not a search and seizure or a warrantless arrest is reasonable, within the meaning of the Fourth Amendment, depends on the traditional standards of reasonableness and not the law of a particular state." Follows Virginia v. Moore (2008) 128 S.Ct. 1598 (state restrictions on warrantless arrests do not alter Fourth Amendment protections). Warrantless arrest for crimes committed in presence of officers are reasonable. See Atwater v. City of Lago Vista, 532 U.S. 318, 345-47 (2001); Devenpeck v. Alford, 543 U.S. 146, 152-53 (2004); Gerstein v. Pugh, 420 U.S. 103, 111-13 (1975); Brinegar v. United States, 338 U.S. 160, 164 (1949). 

Sentencing - on other charges

People v. Wagner (Ca. Sup. Ct., 3/9/09, S156537) 09 C.D.O.S. 2901

A defendant subsequently incarcerated for a new offense after having been placed on probation with imposition of sentence suspended on an earlier conviction has a choice whether to invoke Penal Code section 1203.2a or Penal Code section 1381 to request a speedy sentencing. 

Sentencing - modification to prevent deportation

People v. Mendoza (5th Dist., 3/6/09, H032314) 09 C.D.O.S. 2799

Trial court does not have authority, while a defendant is still on probation, to reduce a 365-day county jail term imposed as a condition of probation after the defendant has already served the term. 

Sentencing - 50 to life for 15 year old not cruel/unusual

People v. Em (4th Dist., 3/3/09, G039806) 09 C.D.O.S. 2719

Two consecutive 25-years-to-life sentences for participation in first degree murder and firearm enhancement not cruel or unusual punishment under either federal or state constitutions, even though defendant was 15 years and 9 months old at the time of the offense. 

Sex offenses - sexual battery not LIO of sexual battery by false representation

People v. Babaali (2nd Dist., 2/25/09, B206165) 09 C.D.O.S. 2712

Sexual battery, Penal Code section 243.4, subdivision (e)(1) is not a lesser included offense of sexual battery by fraudulent misrepresentation, Penal Code section 243.4, subdivision (c). Both statutes have two identical elements: (1) the defendant touches an intimate part of the victim and (2) the defendant acts for the specific purpose of sexual arousal or gratification. The difference between the two crimes is that sexual battery requires a touching “against the will” of the victim, whereas sexual battery by fraudulent representation requires the victim to be “unconscious” of the nature of the touching because the defendant fraudulently represents that the touching serves a professional purpose.

Speedy trial - appointed counsel's delays

Vermont v. Brillon (U.S. Sup. Ct., 3/9/09, 08-88) 09 C.D.O.S. 2825

Assigned (appointed) counsel is not a state actor in the criminal justice system and delays sought by counsel are ordinarily attributable to the defendant's they represent. However, the State may be charged with the delay if it was due to the court's failure to appoint counsel, or if there is a "breakdown in the public defender system." No such institutional breakdown shown in this case. 

Weapons - firearm possession based on out of court statement

People v. Roa (2nd Dist., 3/9/09, B201676) 09 C.D.O.S. 2980

Evidence of firearm possession based on witnesses' out of court prior inconsistent statement admitted pursuant to Evidence Code section 1235 sufficient in light of People v. Cuevas (1995) 12 Cal.4th 252.