BLAKELY - REMAND TO TRIAL COURT
United States v. Mirikitani (2004) F.3d , 04 C.D.O.S. 8019 (9th Cir. 8/31/04, 02-10013)
Without expressing a view on the applicability of Blakely v. Washington, 542 U.S. ____ (2004) to federal upward adjustment, court remands case to trial court "for whatever action it deems lawful and appropriate in light of Blakely ...".
Ed. Note: what ever happened to providing guidance to trial courts?
BLAKELY - REMAND TO TRIAL COURT
United States v. Castro (2004) Cal.App.4th , 04 C.D.O.S. 7963 (9th Cir. 8/30/04, 03-50444)
Ordinarily the Ninth Circuit would hold in abeyance Blakely challenges until the U.S. Supreme Court decides United States v. Booker, 375 F,3d 508 (7th Cir. 2004), cert. granted, 73 U.S.L.W. 3074 (U.S. Aug. 2, 2004) (No. 04-104), and United States v. Fanfan, No. 03-47, 2004 WL 1723114 (D. Me. June 28, 2004), cert. granted, 73 U.S.L.W. 3074 (U.S. Aug. 2, 2004) (No. 04-105), but here the defendant would have served his sentence by now if it had not been enhanced, so panel remands to trial court "for whatever action it determines to be proper under the circumstances." It suggests that the court could reconsider its sentence or stay further proceedings, "with or without granting bail ...".
Ed. Note: another pass the buck decision. This is getting to be a habit.
CIVIL RIGHTS - RECORDING ON-DUTY POLICE OFFICER
Johnson v. City of Sequim (2004) F.3d , 04 C.D.O.S. 8014 (9th Cir. 8/31/04, 03-35057)\
Videotape recording an on-duty Washington police officer was not a violation of Washington's Privacy Act. Subsequent arrest was unreasonable because it was clearly established law, arrest violated citizen's Fourth Amendment right, and there was evidence of Monell liability against the city. Held: no qualified immunity for either police chief or city. Summary judgment reversed.
DRUGS - MEDICAL MARIJUANA DEFENSE - AVAILABLE WHEN POSSESSION FOR SALE AND TRANSPORTATION CHARGED
People v. Wright (2004) Cal.App.4th , 04 C.D.O.S. 8047 (Third Dist., 8/31/04, G031061)
Defendant charged with possession for sale and transportation of marijuana should have been allowed to assert compassionate use defense (Proposition 215, Health & Safety Code section 11362.5). See also People v. Trippet (1997) 56 Cal.App.4th 1532 (defense available when transportation charged even though transportation not mentioned in statute).
INSANITY - COMPETENCY - JURY INSTRUCTION
People v. Johnwell (2004) Cal.App.4th , 04 C.D.O.S. 8050 (Fifth Dist., 8/30/04, F041899)
CALJIC No. 2.01 (sufficiency of circumstantial evidence), which placed burden on defendant at competency hearing to produce sufficient circumstantial evidence to disprove every rational conclusion and reasonable interpretation other than incompetence, violated Fourteenth Amendment because it placed higher burden of proof that constitutionally permissible. Chapman harmless-beyond-reasonable-doubt (Chapman) standard applied, even though competency trial right is creature of statute.
MISTRIAL - SILENT CO-DEFENDANT ACQUIESCES
United States v. Yu (2004) F.3d , 04 C.D.O.S. 8020 (9th Cir. 8/31/04, 03-30420)
Defendant who remained silent while co-defendant made successful mistrial motion could not assert double jeopardy, because he consented by implication.
SEX REGISTRATION - FORGETFULNESS NOT A DEFENSE
People v. Barker (2004) Cal.4th , 04 C.D.O.S. 7978 (Cal. Supreme Court, 8/30/04, S115438)
Willfulness element of Penal Code section 290 (failing to register as sex offender) is not negated by "just forgetting to register."
SEXUALLY VIOLENT PREDATOR - INVOLUNTARY DRUGS
In re Calhoun (2004) Cal.App.4th , 04 C.D.O.S. 8033 (Second Dist., 8/31/04, B159949)
Sexually violent predators have the same right as mentally disordered offenders to refuse antipsychotic drugs (see In re Qawi (2004) 32 Cal.4th 1, and can be compelled to take the drugs in a nonemergency situation only if a court finds: (1) he is incompetent to make decisions about medical treatment, or (2) he is dangerous.
SPEEDY TRIAL - PREJUDICE - TOLLING OF STATUTE OF LIMITATIONS
United States v. DeGeorge (2004) F.3d , 04 C.D.O.S. 7964 (9th Cir. 8/30/04, 02-50365)
Defendant failed to show actual prejudice from six-year delay. District court did not err in tolling the statute of limitations under 18 U.S.C. sec. 3292 (evidence of offense is in foreign country). Phrase in statute referring to "the district court before which a grand jury is impaneled to investigate the offense" refers to the venue where the tolling motion must be filed, not to a requirement that a grand jury must actually be investigating. It would not make sense to impanel a grand jury, then seek a tolling order in order to get evidence.
Ed. Note: I recommend reading the facts of this case. It could make a hilarious movie.
THEFT - FROM PROGRAMS RECEIVING FEDERAL FUNDS
United States v. Mirikitani (2004) F.3d , 04 C.D.O.S. 8019 (9th Cir. 8/31/04, 02-10013)
Following Sabri v. United States (2004) 124 S.Ct. 1941, Ninth Circuit panel holds that to support conviction for fraud and bribery under 18 U.S.C. sec. 666, there need not be proof of nexus between the bribe and federal money.
