ElectricLawyer

Case summaries - Sep 23, 2009

Counsel - ineffective assistance at penalty phase
Hamilton v. Ayers (9th Cir., 9/18/09, 06-99008) ___ F.3d  ___
    Trial counsel rendered ineffective assistance at penalty phase by failing to investigate and present "the wealth of classic mitigating evidence that was available to him." It was counsel's first capital case, but he did not obtain advice from more experienced counsel or associate co-counsel. He only retained an investigator, and "never even thought about retaining a mitigation expert or a mental health expert." Counsel "compounded the errors he committed during the investigative phase ... by presenting almost none of the little mitigating evidence had had discovered."
    Eastern District Judge Oliver W. Wanger "clearly erred" in relying on trial counsel's testimony as to "standard capital practice" and rejecting the testimony of Hamilton's Strickland expert.

Drugs - bringing drugs into juvenile hall
In re Edward Q. (4th Dist., 9/17/09, G041281) ___ Cal.App.4th  ___
    A person who brings controlled substance or other contraband into juvenile hall is properly charged under Welfare & Institutions Code section 871.5, not Penal Code section 4573. Reversed and remanded for new dispositional hearing, but court does not rule on whether jeopardy may have attached.

Preliminary hearings - allowing DA to re-open prelim during 995 motion
Garcia v. Superior Court  (6th Dist., 9/17/09, H033111) ___ Cal.App.4th  ___Monterey County Superior Court Judge Larry E. Hayes erred in granting DA's request to reopen the preliminary hearing, ostensibly under authority of Penal Code section 995a, to permit superior court judge sitting as magistrate to hear new evidence before ruling on defendant's Penal Code section 995 motion, when new evidence filled evidentiary vacuum concerning the gravamen of the offense. The additional evidence did not constitute "minor errors of omission, ambiguity, or technical defect which can be expeditiously cured or corrected without a rehearing of a substantial portion of the evidence." The error here was not minor, as it went to an element of the offense. See also Loverde v. Superior Court (1984) 162 Cal.App.3d 102.
   

Search & seizure - area adjoining place of arrest
United States v. Lemus (9th Cir., 9/22/09, 08-50403) ___ F.3d  ___
    Area in which police officers discovered incriminating evidence "immediately adjoined the place of arrest," and thus officers were justified in searching without additional probable cause or reasonable suspicion. (Maryland v. Buie (1990) 494 U.S. 325, 334.) Anything in plain view discovered during search could be seized without violating Fourth Amendment. (Horton v. California (1990) 496 U.S. 128, 136-137.)

Sentencing - federal - Prior Penal Code section 245(a)(1) conviction
United States v. Grajeda (9th Cir., 9/21/09, 07-50387) ___ F.3d  ___
    Prior conviction for violating Penal Code section 245(a)(1) (assault with deadly weapon or means likely to produce great bodily injury) is "crime of violence" under U.S. Sentencing Guidelines and thus justifies 16-level enhancement.

Sex offenses - sentencing
People v. Goodliffe (3rd Dist., 9/14/09, C058588) ___ Cal.App.4th  ___
    General statement of legislative intent does not trump plain meaning of Penal Code section 667.6, subdivision (c), and full, separate and consecutive term may not be imposed for each violation of violent sexual offense listed in Penal Code section 667.6, subdivision (e) when crimes do not involve same victim on same occasion.

Subpoenas - SDT lacking sufficient affidavit
Lee v. Superior Court  (4th Dist., 9/21/09, G041511) ___ Cal.App.4th  ___
    Subpoenas duces tecum issued for records of sexually violent predators against whom proceedings were pending should have been quashed as they lacked an affidavit "setting forth in full detail the materiality" of the items sought. Code of Civil Procedure section 1985(b).

Supervised release - conditions
United States v. Watson (9th Cir., 9/23/09, 08-10385) ___ F.3d  ___
    Though waiver of right to appeal does not bar defendant from challenging illegal sentence, here, supervised release (probation condition) that defendant not come into San Francisco without probation officer's permission was not unlawful, and was reasonably tried to court's aims of rehabilitation and deterrence. Note that defendant did not live in San Francisco before the incident in question (a carjacking at gunpoint).

Gordon Bell and Total Recall

Just finished Gordon Bell's new book, Total Recall. Bell (together with co-author Jim Gemmell) describes his experiment at lifelogging, collecting and digitizing all the information in his life, and making it readily available to himself (this is not lifeblogging) as e-memories. Now Bell is no ordinary human. He is an uber-geek, a legend in his own time. And he had a little help from the boys and girls of Redmond in pulling off his lifelogging project.

What amazed me is how much of what he suggests can be done now (in Chapter 9) I have already done, with no knowledge of Bell's work. I didn't even know I was lifelogging. I just thought I was being weird.

In Chapter 9, Bell lists the basic equipment for lifelogging:

• A smartphone (mine is an iPhone. Check)
• A GPS unit (built into my iPhone. Check)
• A digital camera (I have several, including the one in my iPhone. Check)
• A personal computer (24" iMac. Check)
• Internet connection (goes without saying)
• Scanner (Fujitsu ScanSnap and a HP flatbed. Check)
• An e-book (Kindle, on which I read Total Recall. Check)
• An electronic pen (I have the LiveScribe pen. Check)

He does not mention an organizational tool for retrieving all this stuff. I have been using Bento 2 essentially as a Total Recall device.

Reading Total Recall was exciting. I am not afraid of the future (for one thing, I plan to be dead before it really arrives). It was wonderful to find a kindred spirit in a man I've never met.

Gordon Bell's Total Recall

I'm about halfway through Gordon Bell's new book on life logging (not life blogging, mind you). Here are some video interviews of the authors and their work.

Videos

Reasonable Doubts - Sep 11, 2009

Guilty pleas - different sentencing judge
People v. McIntosh (1st Dist., 9/8/09, A122142) ___ Cal.App.4th  ___
    When sentencing discretion is expressly constrained by the terms of a plea agreement and the judge who accepted the plea becomes unavailable for reasons beyond the court's or the prosecutor's control, the defendant is not automatically entitled to withdraw plea under People v. Arbuckle (1978) 22 Cal.3d 749 in the absence of evidence that exercise of individualized judicial discretion was a material element of the consideration for the plea agreement.

Hearsay - confrontation challenge
People v. Gutierrez (2nd Dist., 9/9/09, B211622) ___ Cal.App.4th  ___
    Testimony by nurse practitioner about sexual assault exam conducted by nontestifying nurse did not violate Sixth Amendment confrontation clause as interpreted by Melendez-Diaz v. Massachusetts (2009) 557 U.S. ___, 129 S.Ct. 2527, because People v. Geier (2007) 41 Cal.4th 555 survives Melendez-Diaz and binds lower courts, because the preparation of the nurse's report was contemporaneous with the testing. Parts of the report containing victim's description of assault may have violated confrontation but were harmless.

Misconduct - judicial - directing verdict
Smith v. Curry (9th Cir., 9/8/09, 07-16875) ___ F.3d  ___
    State trial judge violated rule that prohibits the attempt to force or coerce a verdict from jury when, after finding out who holdout juror was and was specific evidence was troubling that juror, instructed jury to focus on particular evidence supporting conviction. California Court of Appeal's decision upholding instruction was unreasonable application of established Supreme Court law. (Allen v. United States (1896) 164 U.S. 492; Lowenfield v. Phelps (1988) 484 U.S. 231; Early v. Packer (2002) 537 U.S. 3.)

Sentencing - remand for correction
People v. Lawrence (5th Dist., 9/8/09, F055219) ___ Cal.App.4th  ___
    Court required to stay sentence on assault after sentencing defendant on attempted murder, when DA argued to jury that the assault was the same act (a shooting) as the attempted murder. The court could not countermand the jury's determination, and find that there were two objectives. (PC 654; People v. Kinman (1955) 134 Cal.App.2d 419 [what force is likely to produce great bodily injury is question of fact for jury].) But court forgot to impose one-year sentence for second prior conviction, alleged and found true. That constitutes unauthorized sentence that may be corrected at any time. Case remanded for court to stay assault and decide to strike or impose the additional one-year term.

Sentencing - juvenile priors
People v. Quiles (1st Dist., 9/9/09, A119615) ___ Cal.App.4th  ___
    Trial court did not err in imposing upper term based on prior juvenile adjudications, and could consider elements of offenses in determining whether they were of increasing seriousness.

Sex offenders - registration
Doe v. Brown (4th Dist., 9/3/09, D053982) ___ Cal.App.4th  ___
    Previously convicted sex offender who has been released from penalties and disabilities under Penal Code section 1203.4 still remains subject to Internet publication provisions contained in Penal Code section 290.46 (Megan's Law).

Statute of limitations - DNA
Birotte v. Superior Court  (2nd Dist., 9/8/09, B213606) ___ Cal.App.4th  ___
    A suspect's identity is "conclusively established by DNA testing" within meaning of Penal Code section 803(g)(1) after "a biological sample has been obtained with a sufficient chain of custody for the DNA profile developed from it to be admissible in evidence, that DNA profile has been matched to a DNA profile developed from crime scene evidence and statistical analyses have been completed that establish with sufficient certainty the suspect is the source of the evidentiary profile." That is when the statute of limitations begins to run. Date of initial hit notification report from criminalist does not trigger statute.

Case summaries - Sept. 4, 2009

Burglary - claim of right defense
People v. Williams (3rd Dist., 8/26/09, C059218) ___ Cal.App.4th  ___
    Sacramento County Superior Court Judge Laurie M. Earl erred by refusing to give claim-of-right defense instruction, since there was substantial evidence that the defendant, in good faith, believed the property taken from victim belonged to the co-principal. "It would defy logic and common sense to hold that a defendant who absconds with goods by force under a good faith belief that he was repossessing his own property does not thereby commit robbery, but that his accomplice, who assists him in the same act and shares the same intent, may be found guilty." Error harmless beyond reasonable doubt.

Child molestation - statute of limitations
People v. Shaw (5th Dist., 8/28/09, F054698) ___ Cal.App.4th  ___
    Statute of limitations for felony violation of Penal Code section 647.6, subdivision (c)(2) (annoying/molesting child with prior conviction) is three years. See People v. San Nicolas (1986) 185 Cal.App.3d 403 and People v. McSherry (2006) 143 Cal.App.4th 598.

Child pornography - intrastate possession may be prosecuted federally
United States v. Gallenardo (9th Cir., 8/28/09, 07-30414) ___ F.3d  ___
    Intrastate possession of child pornography may serve as requisite interstate commerce nexus for federal jurisdiction. See United States v. McCalla (9th Cir. 2008) 545 F.3d 750, 756 ("homegrown" child pornography affects interstate commerce even when there is no evidence that the pornography in the instant case was distributed).

Discovery - transcript of Penal Code section 1326 hearing
Kling v. Superior Court  (6th Dist., 8/31/09, B208748) ___ Cal.App.4th  ___
    DA entitled to notice of hearing held under Penal Code section 1326 to determine defense access to records it subpoenaed into court, but is not entitled to unseal reporters' transcripts of the hearing. "No statutory or constitutional authority permits disclosure to the prosecution of the names of the third parties to whom defense subpoenas have been issued or the nature of the records produced. Unsealing transcripts of any in camera hearing could result in disclosure of information the defense may not use at trial and, in turn, inhibit defense counsel's investigation. This does not prejudice the People. Section 1054.3 requires disclosure of evidence the defense intends to offer at trial." City of Alhambra v. Superior Court (1988) 205 Cal.App.3d 1118 and Department of Corrections v. Superior Court (1988) 199 Cal.App.3d 1087 do not apply because they predate enactment of discovery provisions and amendments to Penal Code section 1326. "Here the People will know what documents were subpoenaed if the defense decides to use them at trial. The People are not entitled to know what the defense subpoenaed but will not use at trial."

Double punishment - street terrorism and murder
People v. Tran (4th Dist., 8/31/09, G036560) ___ Cal.App.4th  ___
    When sole basis for street terrorism conviction was either attempted murder of rival gang member or actual murder of bystander thought to be gang murder, sentencing on both street terrorism and murder cannot stand, as it violates Penal Code section 654. (People v. Vu (2006) 143 Cal.App.4th 1009.) Judgment modified to stay street terrorism sentence. Court notes that "Tran will now be able to begin serving his life sentence ... after 51 years, instead of 54."

Gangs - firearm use on top of life term okay
People v. Jones (Ca. Sup. Ct., 8/31/09, S148463) ___ Cal.4th  ___
    Defendant subject to life imprisonment for personally shooting at inhabited building for benefit of street gang under Penal Code section 186.22(b)(4) committed "felony punishable by ... imprisonment ... for life," thus triggering application of 20-year enhancement under Penal Code section 12022.53(c).

Gangs - firearm use on top of life term not okay
People v. Brookfield (Ca. Sup. Ct., 8/31/09, S147980) ___ Cal.4th  ___
    Additional punishment for firearm use when defendant was not actual user was improper, when court also sentenced defendant to life term under Penal Code section 186.22(b)(4). PC 12022.53(e)(2) provides that "An enhancement for participation in a criminal street gang . . . shall not be imposed . . . in addition to" an enhancement under section 12022.53 for firearm use unless the defendant personally discharged a firearm in the commission of the offense. Companion case to People v. Jones (Aug. 31, 2009, S148643).

Gangs - prior crimes to prove gang membership
People v. Tran (4th Dist., 8/31/09, G036560) ___ Cal.App.4th  ___
    Trial court did not abuse discretion (EC 352) by allowing evidence of protection racket extortions conducted in 1993 and 1994 on behalf of gang, as they were relevant to prove gang affiliation. "In other words, the Legislature said, in effect: When street terrorism is charged, we don't care about the damaging effect of the prosecutor's presentation of 'two or more' other crimes. It just comes with the territory for prosecution of street terrorism."

Hearsay - blood alcohol lab report confrontation error
People v. Lopez (4th Dist., 8/31/09, D052885) ___ Cal.App.4th  ___
    San Diego Superior Court Judge Lantz Lewis erred prejudicially in admitting blood alcohol laboratory report without testimony from criminalist who actually tested it. (Crawford v. Washington (2004) 541 U.S. 36; Melendez-Diaz v. Massachusetts (June 25, 2009, No. 07-591) ___ U.S. ___, 2009 WL 1789468 [Testimonial hearsay evidence otherwise permitted at a trial may not be admitted in a criminal proceeding unless the declarant is unavailable and the defendant had a prior opportunity to cross-examine the declarant].)

Juveniles - probation conditions that minor take medicine
In re Luis F. (1st Dist., 8/31/09, A123599) ___ Cal.App.4th  ___
    Juvenile probation condition that minor continue to take prescribed medications clarified to limit order to take only those medications prescribed for depression and social anxiety disorder. Issue reached despite counsel's failure to object, even though it did not present a pure question of law under In re Sheena K. (2007) 40 Cal.4th 875, 890, because court was "troubled" by the breadth of the order, because it potentially implicated important constitutional rights, i.e., the right to refuse unwanted medication. (In re Qawi (2004) 32 Cal.4th 1, 14; Conservatorship of Wendland (2001) 26 Cal.4th 519, 531-532; Cal. Const., art. I, sec. 1.) Court reaches issue under authority of People v. Vera (1997) 15 Cal.4th 269, 276-277 [[appellate court may excuse a failure to object where the claimed error affects a defendant's fundamental constitutional rights]. Ed. Note: thoughtful nuanced decision penned by Justice Richman.

Misconduct - prosecutorial - arguing depublished case
People v. Williams (3rd Dist., 8/26/09, C059218) ___ Cal.App.4th  ___
    Third District takes DA and Sacramento County Superior Court Judge Laurie M. Earl to task for relying upon a depublished case. "We note with concern that the prosecutor cited and the trial court seemed to be influenced by People v. Hargrove, an opinion that all parties knew had been ordered depublished by the California Supreme Court. (See Cal. Rules of Court, rule 8.1105(e).) We remind counsel that use of a depublished case for this purpose is absolutely prohibited by the California Rules of Court. (Rule 8.1115(a).)" .... "persistent use of unpublished authority may be cause for sanctions. (See Alicia T. v. County of Los Angeles (1990) 222 Cal.App.3d 869, 885.)"

Probation - revocation after probationary period expired
People v. Burton (1st Dist., 8/31/09, A122183) ___ Cal.App.4th  ___
    Once expiration of a probation period is tolled by the filing of a petition to revoke, then as long as probationer is found to have committed some probation violation during the probation period, as charged in a petition filed during the probation period, the trial court retains jurisdiction to revoke probation after period when probation would have expired absent tolling, even if tolling was based on a violation prosecution did not ultimately prove.

Restitution fines - imposition when no mention made in plea bargain
People v. Villalobos (5th Dist., 8/28/09, F056729) ___ Cal.App.4th  ___
    Trial court could impose $4,000 restitution and parole revocation fines even though they were not mentioned in the plea agreement. Court of Appeal finds they were left to the court's discretion. See People v. Walker (1991) 54 Cal.3d 1013 and People v. Crandell (2007) 40 Cal.4th 1301. Walker distinguished because defendant here was told he may have to pay restitution and that encompasses a restitution fine. Court reiterates Walker's warning that courts inform defendants of restitution fines and give the Penal Code section 1192.5 admonition, neither of which was done here.

Case summaries - Sept. 2, 2009

Discovery - violation
United States v. Cardenas-Mendoza (9th Cir., 8/26/09, 07-10553) ___ F.3d  ___
    Trial court abused discretion by refusing to strike government witness' testimony whose grand jury testimony could not be produced as required by Jencks Act, 18 U.S.C. section 3500(d) because court reporter had died. Tapes of testimony were in reporter's physical possession but they were government's responsibility. Error harmless because there was sufficient additional evidence.

Drunk driving - use of report at DMV proceedings
Miyamoto v. DMV (6th Dist., 8/20/09, H032987) ___ Cal.App.4th  ___
    Lab report of driver's blood test results was admissible under public employee records exception to hearsay rule, contained in Evidence Code section 1280. Follows Lake v. Reed (1997) 16 Cal.4th 448. Lab report statement that that results were recorded "at the time of the analysis" met timeliness requirement of statute. Note interesting concurring opinion by Rushing on the question of the standard of review.

Fines - late motion to modify restitution fine
People v. Turrin (3rd Dist., 8/20/09, C059722) ___ Cal.App.4th  ___
    Trial court did not have jurisdiction to entertain motion to modify restitution fines, filed about 10 months after judgment was entered and when defendant had already started serving his sentence. Defendant's appeal to court of appeal dismissed. Court applies general rule that a trial court lacks jurisdiction to resentence a criminal defendant after execution of sentence has begun. (People v. Howard (1997) 16 Cal.4th 1081, 1089.)

Fraud - dismissal of charges upheld
People v. Thrasher (2nd Dist., 8/21/09, B209219) ___ Cal.App.4th  ___
    Promissory note extended in settlement of past rent due was not a "loan" and therefore defendant did not violate FPPC regulations nor did he commit perjury. The agreement was the settlement of a debt, not a loan. Trial court granted 995 motion and Los Angeles County DA Steve Cooley appealed. Held, trial court was right, and dismissal is upheld: "The People's argument is unconvincing, for the partnership's inability to use the money Thrasher owed did not transmute his debt into a loan." Court points out that legislature could just require that promissory notes be listed.

Hearsay - Sixth Amendment right to confront violated
People v. Dungo (3rd Dist., 8/24/09, C055923) ___ Cal.App.4th  ___
    Sixth Amendment right to confront witness violated when doctor not present at autopsy was allowed to testify to cause of death relying upon autopsy report prepared by employee who had left county employment "under a cloud" and had been fired from another county. The autopsy report, prepared in the midst of a homicide investigation, is "testimonial" withink meaning of Crawford v. Washington (2004) 541 U.S. 36, 68 and Melendez-Diaz v. Massachusetts (2009) 557 U.S. ___,174 L.Ed. 2d 314. Error not harmless beyond reasonable doubt, since prosecution relied upon testimony to argue murder instead of manslaughter. Reversed.

Homicide - vehicular manslaughter
People v. Hovda (3rd Dist., 8/24/09, C058800) ___ Cal.App.4th  ___
    Trial court did not err in failing to instruct the jury that gross negligence, one element of gross vehicular manslaughter while intoxicated (PC 191.5(a)), requires conscious indifference to consequences. CALCRIM No. 590, the instruction the court gave, conveys equivalent of "conscious indifference" by informing jury gross negligence exists only if "[a] reasonable person would have known that acting in that way would create" "a high risk of death or great bodily injury."

Homicide - felony-murder instruction
People v. Hach (3rd Dist., 8/25/09, C055692) ___ Cal.App.4th  ___
    Following People v. Chun (2009) 45 Cal.4th 1172, court holds failure to instruct that defendant had to have a collateral and independent purpose before it could rely on felony-murder doctrine when felony-murder predicated on shooting at occupied vehicle, which resulted in the death. Error not prejudicial because under properly given instructions, jury could find implied malice to support murder.

Homicide - insufficient evidence for sudden quarrel instruction
People v. Moye (Ca. Sup. Ct., 8/24/09, S157980) ___ Cal.4th  ___
    Record did not support requested sudden quarrel/heat of passion theory that could have reduced murder to voluntary manslaughter. Defendant's own testimony established he did not act rashly when he claimed to have used bat defensively to fend off attack.

Juveniles - equal protection challenge to WI 790 (DEJ)
In re Spencer S. (4th Dist., 8/21/09, G040560) ___ Cal.App.4th  ___
    Welfare & Institutions Code section 790 et seq, which provides for deferred entry of judgment and dismissal for first-time juvenile felons, does not deny equal treatment to juvenile misdemeanant. DEJ benefits rationally restricted to felons because of the severe consequences otherwise applicable to them. In addition, juvenile misdemeanants are eligible for other supervision programs that do not even require a court appearance (WIC 654). Also, juvenile misdemeanants are eligible for sealing under other statutes. (PC 1203.45, 851.7, 781, 781.5 etc.)

Juveniles - probation condition
In re Spencer S. (4th Dist., 8/21/09, G040560) ___ Cal.App.4th  ___
    Condition that minor not associate with persons known to him to be on parole is not constitutionally overbroad.

Juveniles - timely request for DEJ
In re A.I. (3rd Dist., 8/25/09, C058506) ___ Cal.App.4th  ___
    Concluding that "the minor's counsel deserves a pat on the back, not a stab in the back" for agreeing to run the suppression motion and the trial at the same time, one after the other, so that officers would not have to testify twice. The trial did not start with the suppression hearing, and therefore minor's request for deferred entry of judgment at end of supression portion of hearing was timely, and Sacramento County Superior Court Judge Raoul Thorbourne erred.  Court warns counsel to make sure that court agrees jurisdictional hearing does not start with suppression motion.   Ed. Note: I have a better idea. No good deed goes unpunished. Counsel should not agree to such a procedure. Period.

Juveniles  - commitment period
In re R.O. (2nd Dist., 8/25/09, B208117) ___ Cal.App.4th  ___
    Juvenile court has discretion to set lesser term of confinement than indeterminate sentence applicable to adult convicted of same offense. Matter remanded for Los Angeles County Superior Court Judge Charles Scarlett, who did not believe he had discretion.

Prisoners' rights  - classification for early release
Crickon v. Thomas (9th Cir., 2/2/09, 08-35250) ___ F.3d  ___
    Federal Bureau of Prisons failed to provide rational explanation for excluding prisoners with certain prior convictions from early release eligibility.

Punishment - Multiple punishment
People v. Rodriguez (Ca. Sup. Ct., 8/20/09, S159497) ___ Cal.4th  ___
    Trial court erred in imposing additional punishment for firearm use under both Penal Code section 12022.5(a) and Penal Code section 186.22(b)(1)(C) because it constituted dual punishment for a single criminal act -- the firearm use. The dual punishment was prohibited by Penal Code section 1170.1(f), which prohibits additional punishment under more than one enhancement provision for using firearm in commission of single offense. Matter remanded for resentencing.

Recusal - DA's office because one employee was witness
People v. Cannedy (1st Dist., 7/31/09, A120293) ___ Cal.App.4th  ___
    Alameda County Superior Court Judge Michael Gaffey abused his discretion in recusing entire Alameda County District Attorney's Office on the grounds that a witness to uncharged similar offenses worked for the DA's office. Appellate court questions and criticizes the judge's understanding of the law, finding it "troubling." The standard for recusal is actual likelihood of unfair treatment, not simply unseemliness.

Search & seizure - search of vehicle after occupant removed
United States v. Gonzalez (9th Cir., 8/24/09, 07-30098) ___ F.3d  ___
    Following Arizona v. Gant (2009) 129 S.Ct. 1710, Ninth Circuit panel grants suppression motion because police may search a vehicle incident to a recent occupant's arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest. Because defendant was handcuffed and secured in a police car at time of vehicle search, search violated Fourth Amendment.

Search & seizure - computer searches
United States v. Comprehensive Drug Testing, Inc. (9th Cir., 8/26/09, 05-10067) ___ F.3d  ___
    In consolidated cases arising out of search of third-party drug testing lab for information about drug tests conducted on baseball players, Judge Kozinski, speaking for the majority of the en banc panel, hold that search was overbroad and government could not rely on plain view to justify seizure of documents not described in warrant. Decision goes on to spell out procedures to be required by judges issuing computer search warrants.   Ed.Note: I'm not sure that this decision does not conflict with the new rule promulgated by the U.S. Supreme Court, but the high court may wish to revisit its rule in light of this excellent analysis of computer searches.  The government bungled this search in every way possible. It should never have appealed.

Sex registration - federal SORNA
United States v. George (9th Cir., 8/25/09, 08-30339) ___ F.3d  ___
    Defendant could be convicted of failing to register as a sex offender (following conviction of qualifying offense on Indian reservation) even though state where he was required to register had not implemented the Sex Offender Registration and Notification Act (SORNA). The statute became effective in 2006 and was not dependent on state implementation. SORNA's registration requirement not unconstitutional but valid under commerce clause. No ex post facto violation either, as it is a continuing offense.

Shackling - reversal and remand to different district
United States v. Brandau (9th Cir., 8/21/09, 06-10512) ___ F.3d  ___
    The Eastern District of California had a "mandatory full body shackling policy applicable to all defendants at initial appearances." The policy was apparently rescinded during the pendency of the appellate proceedings, but apparently this panel of the Ninth Circuit continues to have its doubts and remands the case to "a district judge outside the Eastern District ... to conduct an evidentiary hearing regarding the present shackling practice ..."

"Despite the fact that the law has changed, however, there is reason to think that the actual state of affairs has not. At oral argument, counsel for the defendants represented on the basis of personal experience that the Eastern District’s shackling practice remains now as it was. Counsel for the government conceded, also on the basis of her own experience, that defendants in the Eastern District are still, in general, fully shackled (handcuffed and placed in waist and legchains) at initial appearances and that she has not personally witnessed any individualized determinations regarding shackling."

I think this decision can be characterized as a major smackdown of the Eastern District's judges. I can hardly wait for the final episode.

Judge Sharon Keller: an update

I wrote a couple of days ago about the hearing involving Texas appellate court Judge Sharon Keller, who is charged with denying a condemned inmate access to the courts by refusing to keep open the clerk's office so that his lawyers could file a request for a stay. In a New York Times editorial today, the editors opined that she should be removed: "Judge Keller's callous indifference in a case where the stakes could not have been higher makes her unfit for office."

On Wednesday, Judge Keller denied the inmate's lawyer a grace period: “That is not true. I declined to keep the clerk’s office open past closing time.” She apparently did not tell the lawyers that another judge was on duty at the courthouse ready to accept late filings.

Of course, a closed clerk's office meant there was nowhere to file the brief.

Case summaries - Aug 21, 2009

Battery - jury instructions did not conflict
People v. Adams (4th Dist., 8/18/09, G039967) ___ Cal.App.4th  ___
    In battery resulting from fight following traffic accident where defendant had left scene (thus committing crime of hit-and-run), trial court instructed both on self-defense and citizen's arrest. Jury asked whether, if vic was engaged in citizen's arrest, could defendant have self-defense claim. Court answered that citizen may use reasonable force to arrest, but if force is excessive, defendant has right to defend himself and also referred jury to self-defense instruction. Held, even though instructions were not "a model of perfection," they were sufficient to inform the jury "that if the arresting party takes a swing, the arrestee need not suffer the blow before undertaking to defend himself." In other words, a reasonable belief that the citizen is about to use excessive force is enough to allow reasonable force in self-defense.

Homicide - jury instructions
People v. Moberly (5th Dist., 8/19/09, F054954) ___ Cal.App.4th  ___
    Defendant shot and killed his son during an argument. During argument, son said, "Go ahead, Dad. Go ahead and shoot me." Defendant did, shooting past his wife, who was standing between them. Then defendant went outside and handed the gun to victim's son, defendant's grandson. Court finds that People v. Dewberry (1959) 51 Cal.2d 548 complied with, even though a "benefit of the doubt" instruction was not specifically given telling jury that if it had a doubt whether the killing was voluntary or involuntary it had to find it was involuntary. Finds case controlled by People v. Musselwhite (1998) 17 Cal.4th 1216.

Misconduct - judicial - invading jury's province
People v. Guerra (6th Dist., 7/31/09, H032881) ___ Cal.App.4th  ___
    Santa Clara County Superior Court Judge Alden Danner erred and invaded jury's province by telling jurors their acquittal of one allegation was inconsistent and that jury might wish to "reconsider" verdict and "should" find allegation true if it found predicate fact of multiple victims true. While it was true that the verdicts were inconsistent, there was an acquittal in open court and the defendant was entitled under state law (PC 1161: "when there is a verdict of acquittal, the Court cannot require the jury to reconsider") and federal constitutional provisions (jury trial and double jeopardy) to benefit of acquittal, even if due to jury's confusion. Trial court's action was "in excess of its authority ...."

Misconduct - prosecutorial - asking for truthfulness comment and vouching
United States v. Harrison (9th Cir., 8/19/09, 08-10391) ___ F.3d  ___
    You know it's going to be a fun read when Chief Judge Alex Kozinski starts by saying: "Everyone could have done more to protect defendant's rights at trial." The rest of the opinion is vintage Kozinski at his snarky best. Prosecutors committed misconduct by asking defendant whether officers were lying ("It's black letter law that a prosecutor may not ask a defendant to comment on the truthfulness of another witness").  The "vouching was similarly patent." Although government could rebut defendant's suggestion that officers were motivated to lie, "it crossed the line when one prosecutor mentioned during closing that the officers had been promoted 'with no adverse action whatsoever' after ... investigation." The prosecutor also said that the "'[g]overnment stands behind'" the officers. The government conceded the immpropriety on appeal but argued prosecutors "were ... on loan from the military." Kozinski replies, "That's no excuse at all ..." and tosses in some criticism of the "respected and experienced" district judge (Hawaii District Judge David A. Ezra). No prejudice found as to Count 1 but Count 2 reversed. Judge Bybee would have reversed Count 1 as well.

Priors - to prove propensity - ex post facto challenge
People v. Flores (2nd Dist., 8/19/09, B204561) ___ Cal.App.4th  ___
    No violation of ex post facto prohibition to use evidence of prior domestic violence in 2007 trial for crimes committed in 1994. Held, even though Evidence Code section 1109, which changed the law to allow evidence of prior domestic violence to prove propensity, was enacted after the offense occurred did not violate prohibition on ex post facto application, under interpretation of Carmell v. Texas (2000) 529 U.S. 513 and People v. Brown (2004) 33 Cal.4th 382. "Section 1109 does not reduce or otherwise change the sufficiency of evidence needed to support appellant's conviction ...." It merely admitted evidence that was not previously admissible.

Case summaries - Aug 18, 2009

Counsel - no third-party Marsden request
People v. Martinez (Ca. Sup. Ct., 8/13/09, S064574) ___ Cal.4th  ___
    Letter from defendant's sister to court complaining about trial counsel's lack of communication buy praising him was not sufficient to require court to conduct Marsden hearing to determine if counsel should be replaced. Marsden protects a defendant's right to counsel under Sixth Amendment and thus is personal to the defendant and ordinarily may not be asserted vicariously.

Jury instructions - willfully untruthful witness
People v. Martinez (Ca. Sup. Ct., 8/13/09, S064574) ___ Cal.4th  ___
    Instruction concerning jury's consideration of willfully untruthful witness, when applied to defendant's testimony, did not shift burden of proof. DA's argument did not shift burden. Instructions given to jury did not require jury to reject testimony but only stated circumstances under which it could do so.

Juveniles - sentencing language
In re Julian R. (Ca. Sup. Ct., 8/17/09, S159282) ___ Cal.4th  ___
    Juvenile court need not orally pronounce minor's maximum period of confinement, but may do it in writing. On silent record, reviewing court will presume juvenile court exercised its discretion under Welfare & Institutions Code section 731, subdivision (c) to impose a period less than the maximum. Matter remanded for court to complete Judicial Council form JV-732 acknowledging it had considered facts and circumstances of offense in determining maximum period.

Ed.Note: fact that court not only failed to state the commitment period, but also failed to fill out form indicate to me that it was not aware of its discretion.

Misconduct - prosecutorial - factual misstatement in closing argument
United States v. Reyes (9th Cir., 8/18/09, 08-10047) ___ F.3d  ___
    Conviction of Brocade ex-CEO reversed due to prosecutorial misconduct in making false assertion of material fact to jury in closing argument. Prosecutor knew statements he made "were belied by the statements to the FBI." Prosecutor asked jury to assume employees who did not testify would testify the same as the one who did testify, when he knew that wasn't true. Northern District Judge Charles Breyer erred in denying new trial motion on grounds that defense counsel could have called the witnesses. Ninth Circuit panel replied: "It was not, however, the defense's burden to prove Reyes was innocent. It was the prosecutor's burden to prove he was guilty. Defense counsel made no knowingly false statements. The prosecutor did. .... In representing the United States, a federal prosecutor has a special duty not to impede the truth."

Ed. Note: as usual, court does not reveal prosecutor's name. Did the court refer him to the State Bar? I'll bet not.

Weapons  - firearm in furtherance of felony
United States v. Thongsy (9th Cir., 8/17/09, 08-30198) ___ F.3d  ___
    Defendant, who was asleep with a gun lying on his sleeping bag at waist level within reach, while guarding large marijuana farm, could be convicted of possessing a firearm in furtherance of a felony. Instructing jury that evidence sufficient if firearm "played a role" was error, but harmless under these facts.

The Trial of Judge Sharon Keller: Way Stranger than Fiction

Texas Court of Criminal Appeals Judge Sharon Keller is on trial herself, charged in a civil factfinding hearing with intentionally denying a condemned prisoner access to the courts by refusing to keep the clerk's office open after 5 pm to permit his attorney to file paperwork. The inmate was executed a few hours later. I'll keep an eye on this very strange proceeding.