WEAPONS - INSTRUCTION ON GUN PLACEMENT
People v. Pitto (Ca. Sup. Ct., 4/7/08, S139609) 08 C.D.O.S. 4040
Defendant who had saleable amount of meth and gun within arm's reach
in car was "armed" "in the commission of" listed offenses under Penal
Code section 12022. (People v. Bland (1995) 10 Cal.4th 991.) Defendant
was not entitled to sua sponte instruction highlighting defense
evidence that he placed the gun in its position near the drugs for a
reason unrelated to the drug crimes. "The particular reason why he
purposefully placed a gun in close proximity to drugs, where it was
available for his use in perpetrating his drug offenses, is
irrelevant. The defendant's deliberate placement of the weapon negates
any claim that the proximity of the gun and the drugs was the result
of mere accident or coincidence."
RESTITUTION - ACCESSORY AFTER FACT TO MURDER
People v. Woods (C.A. 1st, 4/7/08, A116399) 08 C.D.O.S. 4049
Defendant convicted of being accessory after the fact to murder could
not be required to pay restitution to the victim's family. Note that
defendant was not granted probation -- trial court has more discretion
in that case to order restitution. (People v. Carbajal (1995) 10 Cal.
4th 1114, 1121.)
JUVENILES - REQUEST FOR FATHER
People v. Lessie (C.A. 4th, 4/8/08, D050019) 08 C.D.O.S. 4064
Under totality of circumstances test of Fare v. Michael C. (1979) 442
U.S. 707, 728 and People v. Hector (2000) 83 Cal.App.4th 228, 16-year
old defendant waived Miranda rights and did not invoke them by
requesting to speak with father.
APPEALS - FROM SENTENCE IMPOSED AFTER GUILTY PLEA WITHOUT CERTIFICATE
People v. Navarro (C.A. 5th, 4/8/08, F052604) 08 C.D.O.S. 4075
In order to raise validity of 10-year gang enhancement imposed after
no-contest plea, defendant had to obtain certificate of probable
cause. Defendants who receive benefit of bargain should not be allowed
to trifle with the courts by attempting to better the bargain through
appeal (citing People v. Hester (2000) 22 Cal.4th 290, 295). Appeal
dismissed without consideration of merits. (People v. Mendez (1999) 19
Cal.4th 1084, 1099.)
PORNOGRAPHY - DISTRIBUTION TO MINORS
People v. Garelick (C.A. 6th, 4/8/08, H030976) 08 C.D.O.S. 4077
Penal Code section 288.2, subdivision (b) (distribution of harmful
matter to minor) is constitutional and does not violate Commerce
Clause or First Amendment.
COUNSEL - INEFFECTIVE ASSISTANCE - FAILURE TO PRESENT EXPERT EVIDENCE
Richter v. Hickman (9th Cir. 4/9/08, 06-15614) 08 C.D.O.S. 4092
Panel does not decide whether counsel rendered ineffective assistance
by failing to present firearm, serology, or pathology experts because
appellants failed to show the failure, if any, prejudiced their case,
in light of the evidence.
ANIMALS - POSSESSION OF PROTECTED BIRD PARTS
United States v. Vasquez-Ramos (9th Cir. 4/10/08, 06-50553) 08
C.D.O.S. 4161
Prosecution under 16 U.S.C. sections 668-668d and 703-712 for
possessing feathers and talons of protected migratory birds without a
license proper even after passage of Religious Freedom Restoration
ACT, 42 U.S.C. sections 2000bb-1 to 2000bb-4. Follows United States v.
Antoine (9th Cir. 318 F.3d 919, 924. Even though permit process is
slow, it does not unduly burden exercise of religious practice.
ROBBERY - FORCE IN DETAINING OWNER
People v. Gomez (Ca. Sup. Ct., 4/10/08, S140612) 08 C.D.O.S. 4173
Defendant burglarized business when victim was away. Victim returned
while burglary in progress, followed defendant as he was leaving, and
defendant shot at him. Held, robbery committed. Agrees with People v.
Estes (1983) 147 Cal.App.3d 23.
FORFEITURE - INTEREST ON WRONGFULLY SEIZED CURRENCY
Carvajal v. United States (9th Cir. 4/11/08, 06-55868) 08 C.D.O.S. 4223
United States v. $227,000 (9th Cir. 1995) 69 F.3d 1491 survives
enactment of Civil Assett Forfeiture Reform Act (18 U.S.C. sections
983, 985 and 28 U.S.C. section 2465) and therefore claimant was
entitled to interest on currency which government wrongfully seized
and then returned 10 months later, without having instituted judicial
forfeiture proceedings.
ENHANCEMENTS - FEDERAL "VULNERABLE VICTIM"
United States v. Rising Sun (9th Cir. 4/14/08, 06-30614) 08 C.D.O.S.
4258
Court erred in enhancing sentence for "vulnerable victim" due to
remote location where crimes committed. The location was not a
personal characteristic of the victims.
RETURN OF PROPERTY - FEDERAL - TURNED INTO SUMMARY JUDGMENT
United States v. Ibrahim (9th Cir. 4/14/08, 07-50153) 08 C.D.O.S. 4262
Central District Judge Christina Snyder erred in converting motion
for return of property filed under Federal Rule of Criminal Procedure
section 41g, filed when no criminal case was pending, into a Rule 56
motion for summary judgment, and then compounded error by failing to
apply summary judgment standard.
ILLEGAL RE-ENTRY - NECESSITY DEFENSE NOT PROVED
United States v. Perdomo-Espana (9th Cir. 4/14/08, 07-50232) 08
C.D.O.S. 4265
Necessity defense requires objective, not subjective analysis, and
def's request for jury instruction on defense was properly denied. To
be entitled to instruction, defendant must establish that a reasonable
jury could conclude that (1) he was faced with a choice of evils and
reasonably chose the lesser evil; (2) he reasonably acted to prevent
imminent harm; (3) he reasonably anticipated a causal relation between
his conduct and the harm to be avoided; and (4) he reasonably believed
there were no other legal alternatives to violating the law. It is not
enough that the defendant had a subjective but unreasonable belief as
to each of these elements. Instead, the defendant's belief must be
reasonable, as judged from an objective point of view. Here,
defendant's belief that he had to enter U.S. to get help with diabetes
was not shown to be objectively reasonable.
MISCONDUCT - PROSECUTORIAL - COMMENTS ON DEFENSE COUNSEL'S STATEMENTS
NOT
People v. Valencia (Ca. Sup. Ct., 4/14/08, S051451) 08 C.D.O.S. 4273
Prosecutor did not engage in the "rhetorical device of
paraleipsis" (stating one thing while suggesting the opposite) when he
corrected defense counsel's inaccurate description of the law while
emphasizing he was not accusing counsel of being deliberately
deceptive. Court reaches issue even though it was forfeited by defense
counsel's failure to object on that ground. Also not misconduct to
tell the jury that defense wanted a "402 hearing." It was true, and
also unlikely that jury would attach any significance to the
statement. No misconduct in cross-examining defendant's family about
the number of times they had met with members of defense team.
Questions went to crediblity. No misconduct in arguing that witnesses
must have been coached. Prosecutor entitled to argue his
interpretation of the evidence.
COUNSEL - MARSDEN - FAILURE TO HOLD HEARING People v. Mendez (C.A. 5th, 4/11/08,
F052340) 08 C.D.O.S. 4305
Kings County Judge Peter M. Schultz erred prejudicially by failing to
hold hearing on defendant's complaint about counsel's competence, made
in a new trial motion. Remand for Marsden hearing ordered. When
defendant instructed trial counsel to make a new trial motion based on
incompetence of counsel, this instruction was adequate to put the
trial court on notice of defendant's request for marsden hearing.
(People v. Stewart (1985) 171 Cal.App.3d 388.) Appointing new counsel
to determine whether there was basis for motion is not enough. The
court has to make the determination, not leave it up to counsel. Here,
the trial court simply listened to new counsel's "opinion" that there
were no "issues involving a possible ineffective assistance of counsel
claim" and, with no inquiry at all, assigned Mendez's defense "back to
his trial counsel."
IMMIGRATION CONSEQUENCES - CALIFORNIA MARIJUANA CULTIVATION
United States v. Reveles-Espinoza (9th Cir. 4/15/08, 05-50905) 08
C.D.O.S. 4360
Conviction for marijuana cultivation under Health & Safety Code
section 11358 was "aggravated felony" for deportation (removal)
purposes.
SENTENCING - FEDERAL - DRUG QUANTITIES IN DISMISSED COUNTS
United States v. Grissom (9th Cir. 4/15/08, 06-10688) 08 C.D.O.S. 4362
Trial court had to consider crack cocaine quantities in counts
dismissed under plea agreement when calculating offense level under
sentencing guidelines, even though it was not bound by the guidelines.
APPEALS - FEDERAL - SUFFICIENCY OF OBJECTION
United States v. Grissom (9th Cir. 4/15/08, 06-10688) 08 C.D.O.S. 4362
Government did not forfeit right to argue court's calculation of
sentence by failing to state with specificity its objection, and
instead saying simply, "would simply note the government's objection
on the record." Ordinarily a party has to object with specificity, but
here court's comment, "I know," indicated that it understood the basis
for the objection.
HOMICIDE - ATTEMPTED - REFERENCES TO ZONE OF HARM
People v. Bragg (C.A. 3rd, 4/15/08, C053173) 08 C.D.O.S. 4368
Court's occasional use of term "zone of harm" could not have misled
jury into thinking that harm was enough for attempted murder when
other instructions told jury that defendant had to harbor intent to
kill each of the other victims. See People v. Bland (2002) 28 Cal.4th
313 (concurrent intent to kill victims other than the primary one).
PAROLE - GOVERNOR'S DECISION NOT SUPPORTED BY EVIDENCE
In re Viray (C.A. 4th, 4/15/08, D050934) 08 C.D.O.S. 4374
No evidence supported governor's decision that prisoner posed
unreasonable risk to public safety. Governor relied solely on the
commitment offense, which was a stabbing during a bar fight.
INSANITY - APPEAL FROM DENIAL OF OUTPATIENT STATUS
People v. Dobson (C.A. 5th, 4/16/08, F053531) 08 C.D.O.S. 4406
People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967)
386 U.S. 738 procedure, which requires appellate court to
independently review record when appellate counsel finds no issue,
does not apply from denial of outpatient status under Penal Code
section 1026.2. Follows and extends Conservatorship of Ben C. (2007)
40 Cal.4th 529.
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