Electric Lawyer

Inground Swimming Pool Renovations Services in Atlanta - Review

Swimming pool vinyl  liner replacement and remodeling. I put it off as long as I could.

It started ripping sideways along one side of my vinyl swimming pool. I knew it was time to get a new vinyl pool liner but didn’t know who to call or trust to get great service and a great price for replacing my vinyl swimming pool liner in a 20 by 40 foot grecian pool. I overheard a lady telling someone else how she just got a new pool liner for her inground pool in Stockbridge, GA and she was so happy and that there cost was almost $1000 cheaper than everyone else that gave her a quote.  So, I got the name and number of the pool repair and replacement company. The name is Lazy Day Pools and Spa located  1675 Morningside Way, Watkinsville, GA 30677  678-374-4426. Chris Ward is the owner’s name and he came to my house and gave me a quote on a pool liner that was $1100 cheaper than everyone else that gave me a quote. The vinyl liner install and replace took less than a week from the day I ordered it. The pool is back to a beautiful blue color and luxurious design.  I am very pleased.  They even came back out to repair little minor things that I saw needed to be done at no extra charge. 

I recommend if you live anywhere in Georgia, Alabama or Florida to go to their website at http://lazydaypools.com and check out their pool liners and get them to come out to give you a pool liner quote.

Below is a link to Lazy Day Pools website with a happy customer.   Just click on the link to visit the page.

Inground Vinyl Pool Renovation - Atlanta - Before / After

This is a pool that Lazy Day renovated in Loganville, GA. The customer chose a dark blue liner and this provided a great looking contrast to the natural area in the background. This customer also upgraded to "The Lazy Day Ultimate Pool System" for $5500 which means her pool does not need salt or chlorine to stay crystal clear, she saves 80% on energy, her pool liner won't fade, and her kids eyes won't burn when they swim!

 

 

 

 

Welcome back

As any fool can see, I'm not the most consistent blogger in the world. For some reason I'm giving it another try. Maybe because Twitter and Facebook are just too limiting now that I am traveling more and have more spare time. Anyway, here goes nothing.

The iKeyboard: a quick review

The iKeyboard just arrived. Before reading further, just click on the hyperlink in the last sentence and take a quick look at it.

The keyboard sticks on over the iPad's virtual keyboard. It has raised squishy plastic keys that give you tactile feedback. You won't be able to type as fast as on an Apple Bluetooth keyboard paired to your iPad, but quite a bit faster than on the virtual keyboard. One advantage over the virtual keyboard is that you can rest your fingers on the keyboard, so touch typing is actually possible. Another advantage is that it needs no pairing or batteries. I find pairing the Bluetooth keyboard can sometimes be tricky and time consuming. The iKeyboard is ready to go.

I would say that if you are planning to take a semester's worth of notes, get the Bluetooth keyboard, and maybe the Origami case. But if you want a keyboard you can tuck into the Apple Smart Cover (the cover will still close) and practically forget about, this is your weapon of choice.

 

New Hampshire: a war on women or a war on all crime victims?

A number of blogs and other publications are saying that New Hampshire is rolling back the rights of domestic violence victims. I decided to look into it. There is a bill, House Bill 1581. The sponsor is a Tea Party Republican, Rep. Dan Itse. 

As usual, my first step was to review the text of the bill. The Analysis is rather sparse: "This bill restricts the authority of law enforcement officers to make an arrest without a warrant." 

The bill adds and deletes language. 

594:10 Arrest Without a Warrant Upon Observation of a Crime.

I. An arrest by a peace officer without a warrant on a charge of a misdemeanor or a violation is lawful whenever[:

(a) he] the peace officer has probable cause to believe that the person to be arrested has committed a misdemeanor or violation in [his] the officer’s presence[; or

(b) He has probable cause to believe that the person to be arrested has within the past 12 hours committed abuse as defined in RSA 173-B:1, I against a person eligible for protection from domestic violence as defined in RSA 173-B:1, has within the past 12 hours violated a temporary or permanent protective order issued under RSA 173-B or RSA 458:16 by committing assault, criminal trespass, criminal mischief or another criminal act, or has within the last 12 hours violated stalking provisions under RSA 633:3-a.

(c) He has probable cause to believe that the person to be arrested has committed a misdemeanor or violation, and, if not immediately arrested, such person will not be apprehended, will destroy or conceal evidence of the offense, or will cause further personal injury or damage to property].

II. An arrest by a peace officer without a warrant on a charge of felony is lawful whenever[:

(a) A felony has actually been committed by the person arrested, regardless of the reasons which led the officer to make the arrest.

(b) The officer has reasonable ground to believe that the person arrested has committed a felony] the peace officer has probable cause to believe that the person to be arrested has committed a felony in the officer’s presence or in the presence of another peace officer with whom the officer is working.

III. No peace officer shall enter the dwelling or other private property not accessible to the general public without a warrant or consent of the owner, except where the peace officer has observed a person who has committed a felony or misdemeanor in the officer’s presence enter such dwelling or private property and the officer is in hot pursuit of the person.

IV. In the event an arrest is determined by a court or through a petition for redress of grievance to be unlawful, the law enforcement agency which made the arrest shall be liable for all of the arrestee’s legal and incidental costs associated with obtaining his or her freedom and expunging the record of the arrest. All records of unlawful arrests shall be destroyed by the law enforcement agency making the arrest.

5 Protection of Persons From Domestic Violence; Protection by Peace Officers. Amend RSA 173-B:10, II to read as follows:

II. [Pursuant to RSA 594:10, an arrest for abuse may be made without a warrant upon probable cause, whether or not the abuse is committed in the presence of the peace officer.] When the peace officer has probable cause to believe that the persons are committing or have committed abuse against each other, the officer need not arrest both persons, but [should] may arrest the person the officer believes to be the primary physical aggressor. In determining who is the primary physical aggressor, an officer shall consider the intent of this chapter to protect the victims of domestic violence, the relative degree of injury or fear inflicted on the persons involved, and any history of domestic abuse between these persons if that history can reasonably be obtained by the officer.

6 Annulment, Divorce, and Separation; Temporary Relief and Permanent Restraining Orders. Amend RSA 458:16, III to read as follows:

III. When a party violates a restraining order issued under this section by committing assault, criminal trespass, criminal mischief, stalking, or another criminal act, that party shall be guilty of a misdemeanor, and peace officers shall arrest the party, detain the party pursuant to RSA sec 594:19-a, and refer the party for prosecution. Such arrests may be made within 12 hours after a violation [without] with a warrant upon probable cause whether or not the violation is committed in the presence of a peace officer.

A law of unintended consequences?

The effect is to treat domestic violence cases like all other victims. In itself that may not be a bad thing. But the unintended effect is to prohibit police from making warrantless arrests for any type of offense unless the officer personally witnesses the act. What this means is that if a citizen complains to police about any sort of crime the police are unable to take any action other than to seek a warrant. Of course, by the time the warrant is obtained, the culprit will have surely fled, or perhaps eliminated the complaining witness.

It does seem that Rep. Itse was trying to eliminate the added protections, but he has also thrown the baby out with the bathwater. There is no question domestic violence victims will be at greater risk, but so will everyone else.

Of course, since he's not talking, it's hard to tell what he is trying to do.

See also HuffingtonPost. HuffPO reported that the sponsors refused to comment on the bill despite repeated requests.

obsidian finance vcox the oregon blogging case

obsidian finance vcox the oregon blogging case

Me and Steve Jobs

No, Steve Jobs did not know me. Yet he became a part of my life.

I started computing on an Apple II. By 1980 I was writing reviews for The Book of Apple Software. Not that it paid anything, but I was allowed to keep the programs, and that was enough. I designed my first database on it. I learned to program on it (ok, BASIC, but still). I spent hours and hours exploring it.

Then I drifted into the world of PC's. I thought I had to, for work. I eventually left the job and worked for myself. I could have any computer I wanted, but somehow still stuck with PC's. Old habits die hard.

One day, about 25 years after that first Apple, our son came to dinner bringing his iPhone. He had to pry it out of my hands before he could leave. The next day I found myself driving down to the Apple Store for my own iPhone. Two weeks later it was a MacBook. A month after that it was an iMac.

Now I have an iPhone 4, an iPad 2, an iMac, an Apple TV, and three Mac Minis. And I've never been happier with my machines.

All this was due to Steve Jobs. He was a genius. He died far too young. But his legacy lives on. 

Yes, Steve, I'll be there on October 12 buying the iPhone 4S. I think the S stands for Steve.

Probable cause to investigate Governor Walker?

I'm assuming everyone has heard about, listened to, or read a transcript of, the conversation between Governor Scott Walker and gonzo journalist Ian Murphy, who pretended to be David Koch, regarding the Wisconsin teachers' strike.

The question some people are asking is whether Governor Walker committed one or more crimes during the conversation. Let's leave aside the question of his ethics in discussing these issues with a political contributor, or his idiocy in talking with someone who just said he was David Koch.

I want to focus on one part of the conversation:

Koch: [Laughs] Well, I tell you what, Scott: once you crush these bastards I’ll fly you out to Cali and really show you a good time.

Walker: All right, that would be outstanding. Thanks for all the support…it’s all about getting our freedoms back…

It would be fair to say that "Koch" promised Walker a free trip and more "once you crush these bastards" and Walker accepted. Is that evidence of a crime?

Once possibility would be a violation of the honest services law (18 U.S.C. sec. 1346), which forbids "a scheme or artifice to deprive another of the intangible right of honest services."

Convictions for honest services fraud have been upheld when either bribery of the official or failure to disclose a conflict of interest resulting in personal gain was found. See United States v. Isaacs, 493 F.2d 1124, 1149-51 (7th Cir.) (public officials received bribes intended to induce special favors and preferential treatment for certain racing interests), cert. denied, 417 U.S. 976, 94 S.Ct. 3183, 41 L.Ed.2d 1146 (1974).

The conversation between "Koch" and Walker raises at least some suspicion that Walker was to be rewarded to taking certain action, or at the very least, had a conflict of interest that had to be disclosed.

Is this enough to convict him of honest services fraud? No. Is it enough to warrant a federal investigation of his communications with the Kochs? I think so. It does not take much smoke to launch an investigation into a fire. There is more than enough here.

Reasonable Doubts - Dec 14, 2010

Child molestation - meaning of 10 years and under
People v. Cornett (A123957, First Dist., 12/6/10) Cal.App.4th
    Child who was 10 years and 11 months at time of offense was not "child ... 10 years of age or under" within meaning of Penal Code section 288.7(b). Extensive discussion of cases from other jurisdictions.

Fees - failure to hold hearing on ability to reimburse county for counsel fees
People v. Polk (A117633, First Dist., 12/13/10) Cal.App.4th
    County's lien against defendant's house did not obviate need for trial court to make findings that she had ability to pay for counsel costs, as required by Penal Code section 987.8(b).

Homicide - provocative act
People v. Gonzalez (D055698, Fourth Dist., 12/9/10) Cal.App.4th
    Sufficient evidence to support murder and attempted murder conviction on provocative act theory when co-defendant shot by victim with gun provided to co-defendant by defendant (which she had brought to attack the victim). Provocative act doctrine applies when perpetrator of underlying crime instigates gun battle, and victim (or police) respond with privileged lethal force, killing perpetrator's accomplice. (People v.  Cervantez (2001) 26 Cal.4th 860.)

Insanity - medication order unsupported by substantial evidence
People v. Christiana (E048681, Fourth Dist., 12/10/10) Cal.App.4th
    Trial court's authorization to involuntarily administer antipsychotic medication to him was not supported by substantial evidence. Sell v. United States (2003) 539 U.S. 166. Evidence insufficient to support second Sell factor: that involuntarily medicating defendant was both substantially likely to render defendant competent to stand trial and substantially unlikely to have side effects that would interfere significantly with ability to assist counse. (Sell, supra, 539 U.S. at p. 181.)

Restitution - effect of civil settlement
People v. Vasquez (B218802, Second Dist., 12/13/10) Cal.App.4th
    Because a restitution order does not fully replicate a civil judgment, settlement of a civil action and release of the defendant by the crime victim does not discharge the defendant's responsibility to satisfy the restitution order. Here, the civil settlement covered amounts incurred up to the time of the settlement, but the restitution order covered future expenses and pain and suffering.

Sentencing - consecutive
People v. Atencio (C063710, Third Dist., 12/1/10) Cal.App.4th
    One physical act (possession of gun) may constitute two criminal "acts" (theft of firearm and possession by felon) thus permitting consecutive sentencing under Penal Code section 654.)

Sentencing - judicial plea bargaining
People v. Labora (E050692, Fourth Dist., 12/8/10) Cal.App.4th
    DA appeal from guilty plea and sentence on grounds that judge engaged in judicial plea bargaining. Court agrees and remands to give defendant  opportunity to withdraw guilty plea. Because defendant was charged with one serious felony, the court was precluded from engaging in plea bargaining (Pen. Code sec. 1192.7), and therefore People had right to appeal. Because the court specified the punishment it would impose, the action constituted bargaining.

Reasonable Doubts - Nov 30, 2010

Certificate of rehabilitation - discretionary
People v. Blocker (A126229, First Dist., 11/23/10) Cal.App.4th
    Trial court does not abuse discretion by denying certificate of rehabilitation to otherwise-qualified candidate who maintains his innocence.

Death penalty - issues
People v. Foster (S058025, 11/18/10) Cal.4th
    Issues: use of physical restraints (stun belt and leg restraints) forfeited by failure to object, and no evidence they were visible to jury. Voir dire of prospective jurors not inadequate, and forfeited anyway by failure to object. Admission of evidence of prior crimes proper to prove identity, common plan and intent. Cross-examination of defendant regarding prior crimes proper because by denying guilt, defendant placed at issue his identity. Third party contacts with jurors harmless, and unrelated to case. Trespass not lesser included offense of burglary, only lesser related offense. Jury properly instructed on burden of proof with respect to identity. Jury instructions concerning prior crimes were sufficient to properly inform jury that it had to find the priors true by a preponderance, but offenses had to be found true beyond reasonable doubt, and if jury relied on priors to prove essential fact, it had to find prior true BRD. Evidence was sufficient to support convictions. No prosecutorial misconduct. Penalty phase arguments rejected. Full affirmance.

Drunk driving - great bodily injury enhancement
People v. Poroj (E048123, Fourth Dist., 11/18/10) Cal.App.4th
    Penal Code section 12022.7(a) (great bodily injury enhancement) does not require a showing of intent to inflict great bodily injury that is separate from intent to commit the crime itself.

Eavesdropping - by police - dismissal not mandated
People v. Shrier (B218424, Second Dist., 11/23/10) Cal.App.4th
    Appellate court reverses magistrate's dismissal of criminal charges as penalty for intentional eavesdropping of confidential attorney-client conversations by law enforcement. Remedy of suppression and/or other sanctions to be imposed by the trial court is sufficient, because prosecutor was not involved, distinguishing Morrow v. Superior Court (1994) 30 Cal.App.4th 1252. Privilege existed even though co-defendants' counsel were present, since there was in place a joint defense agreement. Court criticizes Dept of Justice personnel who did the eavesdropping.

Evidence - DNA on discarded cigarett butt
People v. Gallego (C061749, Third Dist., 11/22/10) Cal.App.4th
    Cigarette butt that defendant  discarded by throwing it on public sidewalk, collected and DNA-tested by police, did not constitute a search. Distinguishes intrusion cases of Arizona v. Hicks (1987) 480 U.S. 321 and Skinner v. Railway Labor Executives' Assn. (1989) 489 U.S. 602.

Evidence - newly discovered evidence required new trial
People v. Soojian (F058589, Fifth Dist., 11/24/10) Cal.App.4th
    Admitting that "it is unusual for an appellate court to conclude that newly discovered evidence entitles a defendant to a new trial as a matter of law," court concludes that newly discovered evidence raised significant issues as to verdict's correctness.

Gangs - enhancements
People v. Carr (B219279, Second Dist., 11/23/10) Cal.App.4th
    Penal Code section 190.2(a)(22) special circumstance requires proof that defendant had knowledge of gang's criminal purpose (People v.  Castenada (2000) 23 Cal.4th 743) and that the murder was carried out to further the gang's criminal activities. Evidence sufficient for special circumstance and also for gang enhancements.

Prosecutorial misconduct - cured by court
People v. Carr (B219279, Second Dist., 11/23/10) Cal.App.4th
    Prosecutor probably committed error under Griffin v. California (1965) 380 U.S. 609 by commenting on defendant's failure to call an alibi witness, but court cured error by admonishing jury to ignore her statement.

Search & seizure - opening dryer door during search
People v. Smith (B219915, Second Dist., 11/29/10) Cal.App.4th
    Opening dryer door during search for a person was reasonable. Def placed something in the dryer which made a metallic sound, and officer could smell fresh marijuana, as well as see a box filled with cash and individual plastic baggies. Officer claimed he opened the door to stop the dryer because of the noise.

Reasonable Doubts - Nov 19, 2010

Appeals - of probationary orders that were final
In re Shaun R. (H035112, Sixth Dist., 9/29/10) Cal.App.4th
    The phrase "all previous Orders of the Court ... remain in full force" does not operate to revive a previous order that had become final and was therefore nonappealable. "It does not turn an otherwise nonappealable order into an appealable order."

Appeals - appeal following summary denial of writ petition
People v. Jahansson (H034446, Sixth Dist., 9/30/10) Cal.App.4th
    People could appeal grant of suppression motion after previous writ petition was summarily denied. Disagrees with People v. Carrington (1974) 40 Cal.App.3d 647 (DA had to elect between writ review and appeal), and agrees with People v. Allison (1988) 202 Cal.App.3d 1084. Summary denial is not a "decision" within meaning of Penal Code section 1538.5(j).

Child molestation - no specific child
People v. Phillips (B221932, Second Dist., 10/5/10) Cal.App.4th
    Evidence supported conviction for violating Penal Code section 647.6(a)(1) (annoying or molesting a child) even though there was no evidence masturbation was directed at a specific child. Defendant was masturbating in his car, parked in front of a school. He was seen by a girl who walked by his car.

Confessions - midstream Miranda
People v. Camino (G041887, Fourth Dist., 10/4/10) Cal.App.4th
    Substantial evidence supported trial court's ruling that police did not use a deliberate two-step strategy to violate Miranda. See Oregon v. Elstad (1985) 470 U.S. 298; Missouri v. Seibert (2004) 542 U.S. 600.

Credits - retroactive application of Penal Code section 4019
People v. Rasmussen (A125942, First Dist., 11/9/10) Cal.App.4th
    Penal Code section 4019 amendment that increases conduct credits against sentence is properly applied retroactively. Court notes that Supreme Court has granted review on several cases raising this issue.

Death penalty - issues
People v. Russell (S075875, 11/15/10, CA S.Ct.) Cal.4th
    Issues: lying-in-wait theory of murder; denial of jury view; interference with deliberations and jury coercion; consciousness of guilt instruction; unanimity instruction on theory of murder; denial of admission of defendant's statements (by defendant); excusal of jurors; victim impact evidence; uncharged acts; double-counting specials as aggravators; circumstances of crime as aggravator; penalty phase instructional challenges.
Full affirmance.

Discovery - of CI identity
Davis v. Superior Court (B216345, Second Dist., 7/22/10) Cal.App.4th
    Disclosure of confidential informant is not mandatory even when informant was percipient witness but court had duty to hold in camera hearing to determine if CI can given exculpatory evidence. "[T]he balance between the public interest in protecting the flow of information to law enforcement officers and Davis's right to prepare his defense is struck by having an in camera hearing prior to any disclosure."

Drugs - transportation of medical marijuana
People v. Wayman (G042582, Fourth Dist., 10/15/10) Cal.App.4th
    Jury properly instructed on transportation of medical marijuana when it was told that defendant must be a qualified user under the CUA (Compassionate Use Act), and the circumstances of his transportation had to demonstrate he was transporting the marijuana for his own medical use, and that the quantity transported and the method, timing, and distance of the transportation had to be reasonably related to defendant's current medical needs. (CALCRIM 2361.)

Drunk driving - admission of refusal to take PAS test
People v. Jackson (A128782, First Dist., 11/12/10) Cal.App.4th
    Trial court erred in admitting evidence that defendant refused to take a preliminary alcohol screening (PAS) test. The statute itself provides that the test is voluntary and police are required to so inform a detained driver. However, because the jury was told the defendant had a right to refuse, and evidence of guilt was substantial, error was harmless.

Fees - court facilities fee
People v. Cortez (G042891, Fourth Dist., 11/10/10) Cal.App.4th
    Court facilities fee under Government Code section 70373 properly imposed on each of six convictions. Because they are not criminal penalties, ex post facto prohibition is not violated.

Fleeing scene of accident - GBI enhancement
People v. Valdez (G042837, Fourth Dist., 10/12/10) Cal.App.4th
    In prosecution for fleeing scene of injury accident (Veh. Code sec. 20001(a)), conviction may not be enhanced with great bodily injury enhancement (Pen. Code sec. 12022.7(a)) when injuries suffered in accident were not aggravated by defendant's failure to stop and render assistance because defendant was not committing the felony at the time of the accident that caused the injury.

Gangs - jury instruction error
People v. Aranda (D055701, Fourth Dist., 10/6/10) Cal.App.4th
    Trial court's failure to include reference to DA's burden of proof (beyond reasonable doubt) in "active participation in street gang) charge was prejudicial.

Habeas corpus - federal - remand after grant on non-federal grounds
Wilson v. Corcoran (US S.Ct., 10-91, 11/8/10) U.S.
    Seventh Circuit granted habeas relief to state prisoner without finding federal law violation. Matter remanded in per curiam opinion. The appeals court had required the state trial court to reconsider its sentencing determination to "prevent non-compliance with Indiana law."

Hearsay - Victim's 911 call
People v. Johnson (A124362, First Dist., 11/5/10) Cal.App.4th
    Victim's 911 call reporting that her husband shot at her properly admitted at trial under hearsay spontaneous exception of Evidence Code section 1240 when victim failed to appear. No violation of Sixth Amendment confrontation clause as interpreted by Crawford v. Washington (2004) 541 U.S. 36 and Davis v. Washington (2006) 547 U.S. 813 because statement was nontestimonial. Follows People v. Cage (2007) 40 Cal.4th 965; People v. Romero (2008) 44 Cal.4th 386.

Homicide - vicarious liability for shooting when co-defendant killed by another
People v. Camino (G041887, Fourth Dist., 10/4/10) Cal.App.4th
    Insufficient evidence to support finding defendant vicariously discharged a gun (Pen. Code sec. 12022.53(e)(1)) because the lone shooter (and only armed person in defendant's group), who was shot by an unknown person, could not be a principal in his own murder. (People v.  Antick (1975) 15 Cal.3d 79, 91.)

Homicide - failing to instruct on heat-of-passion voluntary manslaughter
People v. Ramirez (B218413, Second Dist., 11/12/10) Cal.App.4th
    Trial court erred prejudicially by failing to instruct jury on voluntary manslaughter on a heat of passion theory that defendant shot victim after victim provoked him by punching him. Even in absence of request, trial court must instruct on general principles of law relevant to issues raised by the evidence. Obligation includes giving lesser included offenses instructions. Voluntary manslaughter based on "sudden quarrel or heat of passion" is lesser and necessarily included offense of intentional murder. (People v.  Breverman (1998) 19 Cal.4th 142, 153-155.)

Juveniles - probation condition that minor not approach courthouses
In re E.O. (H035462, Sixth Dist., 9/29/10) Cal.App.4th
    Santa Clara County Judge Patrick Tondreau's probation condition that minor, made a ward for possession of a knife on school grounds, not approach or enter courthouses where gang-related cases were being tried is constitutionally overbroad. Justice Rushing takes Judge Tondreau to task for also making the condition difficult to understand, using an online readability tester, which ranked the wording at a 28.68 year grade level.

Leaving scene - special enhancement instruction
People v. Nordberg (B218891, Second Dist., 11/8/10) Cal.App.4th
    Jury should have been instructed that defendant had to have knowledge that accident resulted in injury or was of such nature that one would reasonably anticipate it resulted in injury when defendant was charged with violating Vehicle Code section 20001(c). Error harmless because defendant's own testimony established that she knew knew the accident was of such a nature that it was probable another person had been injured.

Misconduct - prosecutorial - "Golden Rule" closing argument improper - conviction reversed
People v. Vance (A122777, First Dist., 9/29/10) Cal.App.4th
    "There is a tactic of advocacy, universally condemned across the nation, commonly known as "The Golden Rule" argument. In its criminal variation, a prosecutor invites the jury to put itself in the victim's position and imagine what the victim experienced. This is misconduct, because it is a blatant appeal to the jury's natural sympathy for the victim. (See People v. Lopez (2008) 42 Cal.4th 960, 969-970 and decisions cited.)"
Nevertheless, Alameda County DA Ynostrosa made a sustained "Golden Rule" closing argument and disregarded the court's rulings sustaining defense counsel's objections. "Unfortunately, the possible prejudicial effect of the improper comments by the prosecutor was exacerbated by the trial court's passive reaction to them." [Alameda Superior Court Judge Roy Hashimoto].
"The judgment of conviction is reversed. Pursuant to Business and Professions Code section 6086.7, subdivision (a)(2), a copy of this opinion will be sent to the State Bar for such disciplinary action, if any, it may deem appropriate." Finally!

Rape - of intoxicated and unconscious woman
People v. Smith (C061805, Third Dist., 11/8/10) Cal.App.4th
    Trial court's instructions on rape of intoxicated woman (CALCRIM 1002) is not incomplete or misleading. It states that a woman must be "so intoxicated that she cannot give legal consent" and defines "reasonable judgment" as being "able to understand and weigh the physical nature of the act, its moral character, and probable consequences." Instruction on rape of unconscious woman (CALCRIM 1003) correctly states that "A woman is unconscious of the nature of the act if she is unconscious or asleep or not aware that the act is occurring." The evidence supported the charge.

Resisting - resisting executive officer by actual resistance is general intent crime
People v. Rasmussen (A125942, First Dist., 11/9/10) Cal.App.4th
    Penal Code section 69 (resisting executive officer by actual resistance) is a general intent crime, and jury was properly instructed. There are two ways section 69 can be violated, and here DA proceeded on the second manner, actual resistance.

Restitution - to RIAA for piracy
People v. Kelly (E048797, Fourth Dist., 10/12/10) Cal.App.4th
    Recording Industry of America (RIAA) could not obtain restitution for piracy from criminal defendants because it was not a direct victim of their crimes.

Restitution - victim's estate
People v. Runyan (B218863, Second Dist., 9/24/10) Cal.App.4th
    Restitution to victim's estate was proper. The estate only existed because of defendant's killing of victim.

Search & seizure - mother's consent to search of minor son's room
In re D.C. (A127228, First Dist., 9/24/10) Cal.App.4th
    Mother of minor had authority to consent to search of minor's room and to override any objection he raised to search. Compare Georgia v. Randolph (2006) 547 U.S. 103 (search of adult son's room).

Search & seizure - prolonged detention
People v. Jahansson (H034446, Sixth Dist., 9/30/10) Cal.App.4th
    Following People v. Glaser (1995) 11 Cal.4th 354, court holds that defendant's initial detention outside premises to be searched was lawful incident to the probation search of the premises, but continued detention in handcuffs was not reasonable under the Fourth Amendment. (People v. Stier (2008) 168 Cal.App.4th 21.

Sentencing - street terrorism sentence had to be stayed
People v. Duarte (G041195, Fourth Dist., 6/2/10) Cal.App.4th
    Trial court should have stayed sentence on street terrorism count under Penal Code section 654 because defendant had same intent and objective in count of discharging firearm with gross negligence. Follows People v. Sanchez (2009) 179 Cal.App.4th 1297.

Sentencing - gang-related enhancements
People v. Yang (C062816, Third Dist., 10/13/10) Cal.App.4th
    Enhancement for firearm discharge by co-principal causing death in gang-committed felony (pcs 12022.53(d) & (e)(1)) does not apply when defendant was not convicted of one of the qualifying offenses enumerated in the statute. Judgment modified to strike 25-life enhancement and 10-year enhancement for gang-committed violent felony, previously imposed but stayed, is imposed instead.

Sex offender registration - after defendant acquitted of sex offenses
People v. Mosley (G038379, Fourth Dist., 9/29/10) Cal.App.4th
    The restriction forbidding registered sex offenders from living within 2,000 feet of a school or park where chidren gather constitutes punishment and therefore the facts supporting sex offender registration must be found by a jury beyond a reasonable doubt under Apprendi v. New Jersey (2000) 530 U.S. 466. Here the jury acquitted the defendant  of any sexual offense and only found him guilty of misdemeanor assault. Nevertheless Orange County Superior Court Judge David A. Hotter imposed a sex registration requirement. Distinguishes In re E.J. (2010) 47 Cal.4th 1258 (imposition of residency restriction as parole condition).

Sexual battery - touching breast
People v. Smith (C061805, Third Dist., 11/8/10) Cal.App.4th
    Defendant committed crime of sexual battery (touching intimate part against the will of the person being touched, for purpose of sexual arousal, sexual gratification, or sexual abuse; Penal Code section 243.4(e)(1)) when he touched breast of woman too intoxicated to resist.

Speedy trial - Penal Code section 1382
People v. Hajjah (S175307, CA S.Ct., 11/4/10) Cal.4th
    Trial court correctly determined that courtroom 76 miles away was not "available" at 4:15 pm on last day to bring defendant to trial. Nor did the physical remoteness of the courtroom constitute "good cause" under Penal Code section 1382 to delay defendant's trial. As in People v. Engram (Oct. 25, 2010, S176983) __ Cal.App.4th __, "the lack of any judge or courtroom available to bring this case to trial within the statutory period resulted from chronic court congestion attributable to the state, the trial court properly concluded that good cause did not exist under section 1382 to delay defendant's trial." Dismissal upheld.

Torture - no ineffective assistance in failing to request cultural defense jury instruction
People v. Assad (C059777, Third Dist., 10/15/10) Cal.App.4th
    Trial counsel was not ineffective in failing to request jury instruction that would have directed jury to consider whether evidence of defendant's cultural background (Syrian) raised reasonable doubt whether he had requisite intent to inflict torture and aggravated mayhem on his son when he physically disciplined him.

Weapons - possession of firearm after discharge from psych facility
People v. Jason K. (D055765, Fourth Dist., 10/7/10) Cal.App.4th
    Trial court did not abuse discretion in holding that DA met burden of showing by preponderance of evidence that petitioner would not be likely to use firearms in safe and lawful manner under Welfare & Institutions Code section 8103(f)(6), and denying petitioner the right to possess firearms for five years after release from facility where he was detained for psychiatric evaluation under Welfare & Institutions Code section 5150. He had checked himself in a few months before and the triggering incident involved a loaded gun and his two-year old child was in the next room. Court considered effect of McDonald v. City of Chicago (2010) 130 S.Ct. 3020 (Second Amendment right to possess firearms) on the question of the burden of proof, but petitioner did not challenge constitutionality of section 8103.

Weapons - interpretation of 18 U.S.C. sec. 924(c)
Abbott v. United States (09-479, U.S. Supreme Court, 11/15/10) U.S.
    Defendant is subject to highest mandatory minimum sentence specified for conduct in 18 U.S.C. sec 924(c) unless another provision of law directed to such conduct imposes a greater minimum.