Factual innocence - standard and burden of proof
People v. Bleich (4th Dist., 10/9/09, D053808) ___ Cal.App.4th ___
Denial of judicial finding of factual innocence under Penal Code section 851.8 upheld, where even though there was insufficient evidence to bind defendant over for trial, defendant failed to carry burden of showing that she was innocent, in other words, that there was not even reasonable cause to arrest her in the first place. (People v. Adair (2003) 29 Cal.4th 895, 905.) The record must exonerate, not merely raise a substantial question as to guilt.
Forfeiture - medical marijuana
United States v. $186,416.00 (9th Cir., 10/20/09, 07-56549) ___ F.3d ___
Evidence relied upon by district court was tainted by illegal search of medical marijuana cooperative by LAPD and had to be suppressed. Remaining evidence insufficient to connect defendant to violation of federal law. Seized funds have to be returned.
Gangs - sufficiency of evidence
People v. Vasquez (2nd Dist., 10/13/09, B213000) ___ Cal.App.4th ___
Defendant conceded that he killed victim "for the benefit of, at the direction of, or in association with" a criminal street gang. That was sufficient to support the finding. There is no need to find that the murder was intended to promote criminal activities, other than the murder itself. Reasonable jury could infer that murder intended to increase "respect" (fear of) for the gang. Court disagrees with Ninth Circuit's reading of statute in Briceno v. Scribner (9th Cir. 2009) 555 F.3d 1069 and Garcia v. Carey (9th Cir. 2005) 395 F.3d 1099.
Habeas corpus - federal - disposing of other claims
Corcoran v. Levenhagen (U.S. Sup. Ct., 10/20/09, 08-10495) ___ U.S. ___
Circuit erred in disposing of petitioner's other sentencing claims without explanation of any sort. It should either have remanded to the district court or itself explained why consideration unnecessary. (Per curiam.)
Hearsay - confrontation
People v. Banos (2nd Dist., 10/19/09, B194272) ___ Cal.App.4th ___
Victim's out-of-court statements during prior domestic violence investigations admissible under forfeiture by wrongdoing exception to confrontation clause because there was evidence that defendant killed victim to render her unavailable as a witness. (See Giles v. California (2008) 554 U.S. ___, 128 S.Ct. 2678.)
Homicide -
People v. Coyle (3rd Dist., 10/9/09, C058218) ___ Cal.App.4th ___
Defendant improperly convicted of three counts of murder and trial court erred in tripling LWOP sentence after killing one person. The three counts charged a single offense, murder, under three alternative theories of the offense.
Insanity - refusal to allow defendant to enter plea
People v. Henning (3rd Dist., 10/14/09, C060371) ___ Cal.App.4th ___
Placer County Superior Court Judge Charles Wachob erred in refusing to allow defendant to exercise personal right to enter not-guilty-by-reason of insanity plea, and refusing to remove defense counsel who would not allow defendant to enter NGI plea. Issue controlled by People v. Medina (1990) 51 Cal.3d 870. Both errors harmless in light of "abundant, uncontradicted evidence" that there was no factual basis for finding of NGI. Defendant's theory of insanity was that after playing Grand Theft Auto for 10 hours, and having stayed up for 10 hours using meth, he just thought he was following game instructions in engaging in robbery mission. Numerous experts opined he was not insane.
Restitution fine - offsetting payment of actual restitution
People v. Vasquez (2nd Dist., 10/13/09, B213000) ___ Cal.App.4th ___
Trial court erred in staying restitution fine until actual restitution paid. There is no basis in statute for offsetting direct payments to victim against restitution fine.
Sentencing - consecutive sentencing
People v. Munoz (3rd Dist., 10/13/09, C058521) ___ Cal.App.4th ___
Trial court erred in finding that there were separate victims and separate times, so as to justify consecutive sentencing. The finding of "separate times" was clearly erroneous. Court did not understand scope of its discretion, so sentencing remanded. Ruling otherwise within court's power must be set aside as denial of fair hearing and fundamental procedural rights when it appears trial court failed to exercise its discretion. (People v. Downey (2000) 82 Cal.App.4th 899, 912.)
Speedy trial - no grace period when defendant did not waive time
Smith v. Superior Court (1st Dist., 10/13/09, A124763) ___ Cal.App.4th ___
San Francisco Superior Court Judge Ksenia Tsenin erred in refusing to dismiss charges on grounds of denial of speedy trial under Penal Code section 1382. Judge continued matter because attorney for the co-defendant was ill, and then applied 10-day grace period of Penal Code section 1382. Ten day grace period did not apply to objecting defendant who had never waived time, using plain-language of Penal Code section 1382 as standard. No good cause found under Penal Code section 1050.1 to continue case into grace period.
Threats - sufficiency of evidence
People v. Smith (2nd Dist., 10/19/09, B214460) ___ Cal.App.4th ___
Even though defendant was in Texas and unemployed when he made threat to victim in California, given his long and escalating history of violence it was reasonable for victim to believe that he would carry through with them.
Weapons - Second Amendment challenge
People v. Villa (3rd Dist., 10/15/09, C059808) ___ Cal.App.4th ___
Convictions for juvenile possession of firearm (PC 12021(e)) and possession of loaded firearm in public (PC 12031) are not prohibited by District of Columbia v. Heller (2008) 554 U.S. ___ [171 L.Ed.2d 637]. Juvenile possession requires a prior adjudication, which makes it similar to prohibition on firearm possession by misdemeanant, upheld in People v. Flores (2008) 169 Cal.App.4th 568. Using same case, it finds that the loaded-weapon-in-public charge "is so far removed from the blanket restrictions at issue in Heller that its constitutional validity remains undisturbed by the Supreme Court's opinion." (Flores, at p. 576.)
10/21/2009
