APPEALS - ISSUES RAISED BY AMICUS
United States v. Gementera (2004) F.3d , 04 C.D.O.S. 7197 (9th Cir. 8/9/04, 0310103)
Ninth Circuit refuses to consider constitutional issues raised by amicus (though it recognized it had the power to do so - see Stone v. San Francisco, 968 F.2d 850, 855 (9th Cir. 1992) ("Issues touching on federalism and comity may be considered sua sponte")), probably because petitioner declined to incorporate them into his arguments.
APPEALS - WAIVER - COMPETENT BUT SUICIDAL DEFENDANT
Dennis v. Budge (2004) F.3d , 04 C.D.O.S. 7057 (9th Cir. 8/5/04, 0499003)
Defendant who pleaded guilty to death penalty offense was competent to do so, despite long history of bipolar disorder, post-traumatic stress, suicide attempts, and abuse by his family. Then he filed state habeas, received appointed counsel, and after denial, appealed to Nevada Supreme Court. While appeal pending, he wrote to the court asking to dismiss his appeal. His attorney filed the brief. The state court remanded for an evidentiary hearing on competence to waive appeal, and found him competent, and his attorney withdrew (because she found it repugnant that he wanted to be executed). He received another attorney and the state court allowed him to withdraw his appeal after speaking to him personally and (apparently) at length.
The majority says: "Evidence showing that a prisoner's decision is the product of a mental disease does not show that he lacks the capacity to make a rational choice. It is the latter -- not the former -- that matters. The question under Rees and Whitmore is not whether mental illness substantially affects a decision, but whether a mental disease, disorder or defect substantially affects the prisoner's capacity to appreciate his options and make a rational choice among them."
Berzon's thoughtful and beautifully written concurrence (she's becoming my favorite writer on the court), says this statement "waters down" the "rational choice" aspect of Godinez v. Moran, 509 U.S. 389, 398 n.9 (1993): "I simply do not understand this reasoning. If a 'next friend' establishes that a prisoner's mental disorder determinatively programmed his decision regarding whether to seek to avoid execution, then any purported 'choice' to forego legal proceedings is illusory. In effect, such a prisoner, though otherwise lucid, rational and capable of making reasonable choices is, in a Manchurian Candidate-like fashion, volitionally incapable of making a choice other than death when faced with the specific question here at issue -- namely, whether to pursue legal proceedings that could vacate the death penalty or to abandon them. If so, I don' t know what it means to say that he retains the capacity to make a rational choice. To make a 'choice' means to exercise some measure of autonomy or free will among the available options, at least to the degree that an individual who does not suffer from a mental disorder is able to do so." She concurs in the judgment because she finds that the federal district court (which held an evidentiary hearing) did not "clearly err" in concluding that the defendant was competent.
APPEALS - WAIVER - FAILURE TO OBJECT ON DUE PROCESS GROUNDS
People v. Partida (2004) Cal.App.4th , 04 C.D.O.S. 6958 (Second Dist., 7/30/04, B161356)
Even though trial counsel only objected on Evidence Code section 352 grounds, due process argument preserved for appeal because raising it in the trial court would have been futile once the 352 objection was overruled. In any event, the appellate court "would, if necessary, elect to exercise our discretion to consider the due process issue." (Citing People v. Williams (1998) 17 Cal.4th 148, 161-162, fn. 6.)
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.
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 - VIOLENT FELONY DETERMINATION FOR CONDUCT CREDITS MAY BE MADE BY JUDGE
People v. Garcia (2004) Cal.App.4th , 04 C.D.O.S. 6998 (Second Dist., 8/2/04, B168985)
Determining whether a defendant's current conviction for first degree burglary is a violent felony for the purpose of calculating presentence conduct credits is properly part of the trial court's traditional sentencing function, and finding is not required to be made by a jury. (See People v. Kelii (1999) 21 Cal.4th 452 [whether prior conviction is serious/violent for Three Strkes is within province of trial court]; Blakely v. Washington (2004) __ U.S. __ , __ [124 S.Ct. 2531, 159 L.Ed.2d 403] [reaffirming prior case law authorizing imposition of a statutory minimum sentence if the judge, not the jury, finds the existence of particular facts].)
BRUTON - ADMISSION WHEN DEFENDANTS TESTIFY
People v. Marlow and Coffman (2004) Cal.4th , 04 C.D.O.S. 7642 (Cal. Supreme Court, 8/19/04, S011960)
Because the defendants both testified, admission of their statements implicating each other did not violate Bruton v. United States (1968) 391 U.S. 123.
CHILD MOLEST - DURESS INCLUDES HARDSHIP
People v. Leal (2004) Cal.4th , 04 C.D.O.S. 7097 (Cal. Supreme Court, 8/5/04, S114399)
The 1993 amendments of the rape and spousal rape statutes, to delete the term "hardship" from the definition of "duress" in rape, and incorporate that definition into spousal rape did not alter the previously existing judicial definition of the term "duress" as used in Penal Code section 288, subdivision (b)(1), which did, and continues to, include a threat of hardship. (See, People v. Pitmon (1985) 170 Cal.App.3d 38, 49.)
CIVIL RIGHTS - DETENTION AFTER RELEASE ORDER
Berry v. Baca (2004) F.3d , 04 C.D.O.S. 7398 (9th Cir. 8/13/04, 03-56000)
Los Angeles County Sheriff Leroy Baca's practice of holding prisoners for 26 or more hours after courts ordered release raised issue of deliberate inaction to support civil rights action. Distinguishes Brass v. County of Los Angeles, 328 F.3d 1192 (9th Cir.), cert. denied, 124 S. Ct. 925 (2003), because here the plaintiffs challenged the implementation of the county's policies, and not the policies themselves.
CIVIL RIGHTS - NO LONG HAIR IN PRISON
Henderson v. Terhune (2004) F.3d , 04 C.D.O.S. 7340 (9th Cir. 8/12/04, 02-17224)
CDC hair length regulation does not infringe upon free exercise of Native American religious beliefs in violation of the First Amendment. Regulation reasonably related to legitimate penological interests. The prison did permit him to use sweat lodges, participate in pipe ceremonies, wear a medicine bag, and consult with spiritual advisors.
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.
CONFESSIONS - NO COERCION IN MENTION OF "BENEFIT"
People v. Ramos (2004) Cal.App.4th , 04 C.D.O.S. 7945 (Second Dist., 8/27/04, B166003)
No evidence of coercion by police: interrogation did not continue over an extended period of time, it was interrupted by police interview of co-defendant, officer did not deceive defendant regarding the strength of the evidence against him, officer was not present when defendant wrote the incriminating statement and defendant confirmed the contents of the written statement in a videotaped interview which the jury saw during trial. Although defendant was youthful, he attended college and thus was not immature or uneducated, and there is no suggestion his physical condition or mental health was compromised. Indication that defendant would benefit in the "judicial process" if he cooperated was was qualified by the further admonition that officer would advise the district attorney of defendant's level of cooperation, but the district attorney would determine what consideration defendant would receive in return for his cooperation.
CONFESSIONS - STATEMENTS TO PROBATION OFFICER
People v. Marlow and Coffman (2004) Cal.4th , 04 C.D.O.S. 7642 (Cal. Supreme Court, 8/19/04, S011960)
After Minnesota v. Murphy (1984) 465 U.S. 420, statements made to probation officer are admissible unless the PO threatened defendant with unfavorable recommendation if he refused to make statement.
CONFRONTATION - LIMITATION ON CROSS RE GRAND JURY TESTIMONY REVERSIBLE ERROR
United States v. Wilmore (2004) F.3d , 04 C.D.O.S. 7843 (9th Cir. 8/25/04, 03-10297)
Sixth Amendment rights violated when district court restricted defendant's cross-examination of a government witness about her grand jury testimony after she invoked the Fifth at trial and the government introduced her grand jury testimony as a prior inconsistent statement. Follows Crawford v. Washington, ___ U.S. ___ , 124 S. Ct. 1354 (2004).
COUNSEL - RIGHT TO - NO RIGHT TO SPECIFIC ATTORNEY
People v. Cole (2004) Cal.4th , 04 C.D.O.S. 7469 (Cal. Supreme Court, 8/16/04, S027766)
Trial court refused to appoint attorney who had been representing capital defendant for almost a year but as a member of Alternate Defense Counsel but who had left the office. The defendant repeatedly asked that the attorney be appointed. The ADC then moved for numerous continuances and at one point, the court conceded that it had made a mistake in not appointing him. Then the court relieved the ADC, after even more continuances, and appointed another new attorney! The new attorney went to trial with less than a month's preparation.
Supreme Court held that the trial court did not abuse its discretion in refusing to appoint the first attorney. It then attempts to distinguish Harris v. Superior Court (1977) 19 Cal.3d 786, which found an abuse of discretion in a refusal to appoint counsel who had previously represented defendants and had a "close working relationship" with the defendants. The other difference is that in Harris new counsel opposed their appointment and supported the appointment of former counsel, whereas here the ADC was neutral.
Court also held that the trial court did not abuse its discretion in removing the ADC as counsel, citing to Penal Code section 987.05 (counsel who is not ready to proceed may be relieved).
Also not abuse of discretion to refuse to appoint the first attorney after removing the ADC. The third attorney claimed he was ready (because he was not going to do any of his own investigation or interview any witnesses), whereas the former attorney said he needed to review the file and perform additional preparation. Also not abuse of discretion to deny Marsden motion.
Ed. Note: I'm sorry, but the only difference I see between this case and Harris is that this is a death penalty case.
DEATH PENALTY - APPRENDI
People v. Marlow and Coffman (2004) Cal.4th , 04 C.D.O.S. 7642 (Cal. Supreme Court, 8/19/04, S011960)
"California's sentencing process remains constitutionally valid after Apprendi v. New Jersey (2000) 530 U.S. 466 and Ring v. Arizona (2002) 536 U.S. 584. (People v. Valdez (2004) 32 Cal.4th 73, 139.)"
DEATH PENALTY - CARLOS WINDOW CASE
People v. Haley (2004) Cal.4th , 04 C.D.O.S. 7893 (Cal. Supreme Court, 8/26/04, S007531)
Before everybody gets all excited, this is a "Carlos-window" case, that brief shining moment when the California Supreme Court rescued the felony-murder special circumstances from unconstitutionality by requiring an intent to kill (Carlos v. Superior Court (1983) 35 Cal.3d 131), before closing the window four years later in People v. Anderson (1987) 43 Cal.3d 1104 (only intentional killers who rob incidentally to the murder [e.g., to take a memento of the killing] are exempt from death).
DEATH PENALTY - LETHAL INJECTION NOT CRUEL/UNUSUAL
Cooper v. Rimmer (2004) F.3d , 04 C.D.O.S. 7331 (9th Cir. 8/12/04, 04-99001)
Death by legal injection is not cruel/unusual.
Ed. Note: not much else to say here. This is the end of the line for Kevin Cooper.
DEATH PENALTY - USUAL ANSWERS
People v. Marlow and Coffman (2004) Cal.4th , 04 C.D.O.S. 7642 (Cal. Supreme Court, 8/19/04, S011960)
Coffman argues that the statute under which she was convicted and sentenced to death fails to adequately narrow the class of persons eligible for the death penalty, as required by the Eighth Amendment to the federal Constitution (Zant v. Stephens (1983) 462 U.S. 862, 877), and creates a substantial and constitutionally unacceptable likelihood that the death penalty will be imposed in a capricious and arbitrary fashion. We have held to the contrary. (E.g., People v. Sakarias (2000) 22 Cal.4th 596, 632.) See also People v. Kraft (2000) 23 Cal.4th 978, 1078; People v. Hines (1997) 15 Cal.4th 997, 1078.) No proportionality review either.
DEATH PENALTY - VICTIM IMPACT EVIDENCE
People v. Cole (2004) Cal.4th , 04 C.D.O.S. 7469 (Cal. Supreme Court, 8/16/04, S027766)
Evidence of victim's suffering admissible as relevant to circumstances of the crime (torture-murder) and as evidence of specific harm that defendant caused. See Payne v. Tennessee (1991) 501 U.S. 808, 825 (victim impact evidence admissible at penalty phase).
DEFENSES - DOUBLE JEOPARDY
Custer v. Hill (2004) F.3d , 04 C.D.O.S. 7141 (9th Cir. 8/6/04, 0236038)
Petitioner not subjected to double jeopardy when state prosecuted him for sodomy with his stepson between November 1, 1986 and June 19, 1987, after petitioner was acquitted at prior trial charging him with engaging in sodomy on June 20, 1987, because petitioner was tried for different offenses that occurred at different times.
Ed. Note: this decision is wrong. Note Ferguson, J. dissent. It permits prosecutors to divide up continuous sexual abuse cases into distinct time periods, and just keep prosecuting a defendant until they get one conviction.
HABEAS CORPUS - FEDERAL - NEW CLAIM RELATES BACK TO FILING DATE
Felix v. Mayle (2004) F.3d , 04 C.D.O.S. 7190, (9th Cir. 8/9/04, 0216614)
When a prisoner challenging a state conviction in a federal habeas petition amends the federal petition to include a new claim, the amendment relates back to the original filing date of the petition. The new claim arises out of the same transaction or occurrence as his original petition because the transaction or occurrence in issue is the state trial and conviction. See Ellzey v. United States, 324 F.3d 521 (7th Cir. 2003). The claim thus relates back under Federal Rule of Civil Procedure 15(c)(2).
Use Note: this is an issue on which circuits are divided, so we can bet the Supremes will take it up. They were probably just waiting for the Ninth to speak.
DISCOVERY - INSTRUCTION RE DELAYED DISCOVERY
People v. Saucedo (2004) Cal.App.4th , 04 C.D.O.S. 7581 (Second Dist., 8/18/04, B166883)
CALJIC 2.28 (instructing the jury on delayed defense discovery), "is increasingly being recognized as a problematic jury instruction, and we share these concerns. The instruction encourages speculation and offers insufficient direction." Harmless here because it was merely a vehicle for challenging the credibility of last-minute alibi witnesses.
DISCOVERY - PREJUDICIAL JURY INSTRUCTION
People v. Cabral (2004) Cal.App.4th , 04 C.D.O.S. 7436 (Fifth Dist., 8/13/04, F042217)
CALJIC 2.28, which informs the jury that the defendant turned over discovery late, prejudiced defendant because it named the defendant as the culprit (when it was his attorney) and gave the jury no guidance as to what to do with the issue prejudiced defendant and required reversal. See also People v. Bell (2004) 118 Cal.App.4th 249.
Ed. Note: this is a Jackie Menaster victory. Go grrlll! She's going to be catching up to All pretty soon.
DISQUALIFICATION - 170.6 - AFTER APPELLATE PROCEEDING
State Farm Mutual Automobile Insurance Co. v. Superior Court (Hill) (2004) Cal.App.4th , 04 C.D.O.S. 7220 (Second Dist., 8/9/04, B174063)
When a trial judge enters judgment and the judgment is reversed on appeal, resulting in a remand to the trial judge for a "new trial," any party can disqualify the judge by way of a peremptory challenge. (See Code Civ. Proc., § 170.6, subd. (a)(2), 2d par.) However, when prior proceeding involved only a question of which law governed, a peremptory challenge did not lie because the trial judge did not "try" the case, and the prior writ proceeding did not result in a "new trial."
Use Note: this case might apply in a criminal proceeding where a pretrial motion is challenged and reversed.
DNA - PROFILING OF CONVICTED PERSONS
United States v. Kincade (2004) F.3d , 04 C.D.O.S. 7542 (9th Cir. 8/18/04, 02-50380)
Fourth Amendment permits compulsory DNA profiling of certain conditionally-released federal offenders in the absence of individualized suspicion that they have committed additional crimes.
DOUBLE JEOPARDY - TWO SEPARATE PROSECUTIONS FOR TWO SEPARATE MURDERS
People v. Marlow (2004) Cal.4th , 04 C.D.O.S. 7676 (Cal. Supreme Court, 8/19/04, S026614)
No violation of double jeopardy to prosecute defendant separately for murders committed in two different counties, even if they were arguably part of a single plan (to get money to go to Arizona).
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).
DRUGS - PROP. 215 - NO NEED TO PROVE SERIOUS ILLNESS
People v. Spark (2004) Cal.App.4th , 04 C.D.O.S. 6972 (Fifth Dist., 8/2/04, F042331)
Trial court erred in instructing jury that defendant had to prove he was seriously ill. That is not an element of the defense under the Compassionate Use Act. The reference to "seriously ill" is only in the prefatory, or purpose statement, of the act. "A physician's determination on this medical issue is not to be second-guessed by jurors who might not deem the patient's condition to be sufficiently 'serious'."
DRUGS - PROP. 36 - POSSESSION OF FIREARM
In re Ogea (2004) Cal.App.4th , 04 C.D.O.S. 7777 (Fourth Dist., 8/20/04, G033402)
Possession of drugs while armed with firearm (Health & Safety Code sec. 11370.1(a)) is not a "nonviolent drug possession offense" for purposes of Penal Code section 1210 (Prop. 36) probation.
DRUGS - TRANSFER OF TRACE AMOUNTS
United States v. Combs (2004) F.3d , 04 C.D.O.S. 7070 (9th Cir. 8/5/04, 0250485)
Transfer of trace, unuseable amounts of methamphetamine for the purpose of disposal is insufficient to support a conviction for "distribution" under 21 U.S.C. sec. 841(a)(1). Court found the government's reading of the section "technical to the point of absurdity."
EXPERTS - BATTERED WOMAN SYNDROME - ADMISSIBLE EVEN IF VICTIM NOT PREVIOUSLY BATTERED
People v. Brown (2004) Cal.4th , 04 C.D.O.S. 6938 (Cal. Supreme Court, 8/2/04, S113929)
Evidence of battered woman syndrome was admissible under Evidence Code section 801, even though victim had not been battered before, "because it would assist the trier of fact in evaluating the credibility of the victim's trial testimony and earlier statements to the police, by providing relevant information about the tendency of victims of domestic violence later to recant or minimize their description of that violence. (See People v. McAlpin (1991) 53 Cal.3d 1289, 1300 (McAlpin).)" Court does not reach question whether the expert testimony also admissible under section 1107.
Note Brown, J. dissent, finding the testimony not relevant to any disputed fact and prejudicial.
EXPERTS - CONFESSION EXPERT
People v. Ramos (2004) Cal.App.4th , 04 C.D.O.S. 7945 (Second Dist., 8/27/04, B166003)
No abuse of discretion to deny defendant right to present expert on false confessions. Distinguishes Crane v. Kentucky (1986) 476 U.S. 683, 689 (blanket prohibition on presenting evidence of circumstances of interrogation error), because here defense was allowed to cross-examine cop and did not make sufficient showing of need for expert.
FALSE CITIZENSHIP CLAIM - NOT
United States v. Karaouni (2004) F.3d , 04 C.D.O.S. 7801 (9th Cir. 8/24/04, 03-10327)
Checking a box on an immigration form which had a statement next printed next to it saying that the person was a U.S. citizen or U.S. national could not form basis for prosecution under 18 U.S.C. sec. 911 because that provision only penalizes claiming to be a citizen. "[T]he district court violated a basic principle of criminal law by allowing the government to prove that an individual committed the charged offense by showing that he committed either that offense or some other act."
FREE SPEECH - BOOK BANNING
United States v. Schiff (2004) F.3d , 04 C.D.O.S. 7203 (9th Cir. 8/9/04, 0316319)
District court did not abuse discretion in issuing preliminary injunction preventing defendants from promoting the "zero-income" tax book, which is part of a package to teach people to "legally" stop paying taxes. There are three theories for enjoining commercial speech: fraudulent speech (Central Hudson Gas & Electric v. Public Serv. Comm' n, 447 U.S. 557, 563-64 (1980)); speech that will incite imminent lawlessness (Brandenburg v. Ohio, 395 U.S. 444, 447 (1969)); speech that aids or abets criminal activity (Illinois ex rel. Madigan v. Telemarketing Assocs., 538 U.S. 600, 612-13 (2003)). This injunction was supported by the first theory.
GANGS - ADMITTING EVIDENCE WHEN NO GANG ALLEGATIONS FILED
People v. Partida (2004) Cal.App.4th , 04 C.D.O.S. 6958 (Second Dist., 7/30/04, B161356)
Trial court erred under Evidence Code section 352 in admitting "voluminous" gang evidence even though there were no gang allegations, but found the error harmless. Some gang evidence would have been admissible to explain the crime (a wanton shooting of an innocent stranger), but "merely because some gang evidence is relevant to the issue of motive and/or intent, does not necessarily mean that any and all available evidence regarding gang culture and life-style is relevant and admissible in the trial. The obligation of the trial court to carefully scrutinize such evidence prior to its admission is not fulfilled by and does not terminate after an initial determination that some of the available gang evidence will qualify for admission. Failure to individually evaluate the probative value of the various statements that might be given by the gang expert against their prejudicial effect is giving mere lip service to the acknowledged inflammatory nature of gang testimony. The trial court should assure that just enough, but no more, gang testimony should be admitted in a trial than is relevant [in a section 352 analysis] to prove the point in question."
Use Note: the trial judge was Los Angeles Judge Arthur Lew.
GANGS - BIFURCATION OF GANG ALLEGATIONS
People v. Hernandez (2004) Cal.App.4th , 04 C.D.O.S. 7212 (Cal. Supreme Court, 8/9/04, S117651)
Trial court did not abuse discretion in refusing to bifurcate gang enhancement allegations (Penal Code section 186.22(b)(1)) from charged offenses, even though it placed evidence otherwise inadmissible before the jury. However, on request, the court "should" give limiting instructions regarding use of the gang evidence. Because defense counsel failed to request such an instruction, court did not err in failing to give it. Not ineffective assistance of counsel to fail to request instruction because "under the circumstances, defense counsel might reasonably have concluded it best if the court did not explain how the evidence could be used." Also harmless because much of the gang evidence was in fact relevant to the charged offense.
GRAND JURY - FAILURE TO PRESENT EXCULPATORY EVIDENCE
People v. Thorbourn (2004) Cal.App.4th , 04 C.D.O.S. 7848 (Second Dist., 8/24/04, B168276)
Trial court abused discretion in dismissing indictment for failure of prosecutor to present exculpatory evidence under Penal Code section 939.71. Court should have ordered DA to resubmit case to grand jury with the additional evidence.
GUILTY PLEAS - HABEAS - HEARING REQUIRED
United States v. Howard (2004) F.3d , 04 C.D.O.S. 7838 (9th Cir. 8/25/04, 02-16228)
Because there was no dispute that petitioner was taking powerful narcotic drugs that could have dulled his mental faculties and because he alleged specific, credible facts in support of his ineffective assistance of counsel claim, district court should have permitted him to develop these claims more fully in an evidentiary hearing. A claim must be "so palpably incredible or patently frivolous as to warrant summary dismissal" in order to justify the refusal of an evidentiary hearing. United States v. Leonti, 326 F.3d 1111, 1116 (9th Cir. 2003) (quoting United States v. Schaflander, 743 F.2d 714, 717 (9th Cir. 1984)).
HABEAS CORPUS - FEDERAL - TOLLING DURING STATE REVIEW ROUNDS
Chavis v. LeMarque (2004) F.3d , 04 C.D.O.S. 7936 (9th Cir. 8/27/04, 01-17072)
Ordinarily a petitioner convicted of a state offense is entitled to statutory tolling of the one-year AEDPA limitation period for "properly filed" state habeas petitions while such petitions are "pending." 28 U.S.C. sec. 2244(d)(2). Here, petitioner entitled to tolling while second round of state petitions was pending, even though they were denied on procedural grounds, because the state court's ultimate decision on a particular petition does not affect whether that petition is "pending" while the court considers it. Entitled to tolling for the three-year interval between first round petitions to the California Court of Appeal and California Supreme Court -- during which AEDPA took effect -- because the California Supreme Court did not dismiss the petition as untimely but rather decided it on the merits. See also, Carey v. Saffold, 536 U.S. 214, 219-21 (2002) (time gap between petitions viewed under California's "reasonableness" standard rather than strict time limit; question is whether petitioner unreasonably delayed filing in next court). A petition is considered pending during one full round of state review, which includes petitions in Superior Court, the Court of Appeal, and the Supreme Court. During subsequent rounds of state petitions, entitled to tolling while each petition pends, but not between petitions. AEDPA time starts to run 31 days after state supreme court denies final petition. (Smith v. Duncan (9th Cir. 2002) 297 F.3d 809, 814.)
HABEAS CORPUS - STATE - CLAIM KNOWN BUT NOT RAISED AT TRIAL
In re Seaton (2004) Cal.4th , 04 C.D.O.S. 7773 (Cal. Supreme Court, 8/23/04, S067491)
Claims of constitutional error, even when clear and fundamental and striking at the heart of the process, that were not raised at trial may not be raised in habeas proceeding, unless ineffective assistance of counsel is shown, or unless the facts were not known at the time of trial.
HABEAS - NEXT FRIEND - ATTORNEY IS NOT WHEN DEFENDANT COMPETENT
Dennis v. Budge (2004) F.3d , 04 C.D.O.S. 7057 (9th Cir. 8/5/04, 0499003)
Petitioner's attorney lacks standing to file habeas petition as "next friend" when defendant was competent and had previously waived appeal. "A 'next friend' must provide an adequate explanation--such as inaccessibility, mental incompetence, or other disability--why the real party in interest cannot appear on his own behalf to prosecute the action. Second, the 'next friend' must be truly dedicated to the best interests of the person on whose behalf he seeks to litigate, and it has been further suggested that a 'next friend' must have some significant relationship with the real party in interest." (Citing Whitmore v. Arkansas, 495 U.S. 149, 163-64 (1990).)
HEARSAY - PRIOR INTERVIEW WHEN WITNESS FEIGNS MEMORY LOSS AT TRIAL
Felix v. Mayle (2004) F.3d , 04 C.D.O.S. 7190, (9th Cir. 8/9/04, 0216614)
State court ruling admitting prior videotaped interview of witness who claims (probably feigns) memory loss at trial not contrary to or unreasonable interpretation of Supreme Court cases. "The Supreme Court has held that the Confrontation Clause of the Sixth Amendment is not violated by the admission of a prior identification by a witness who is unable, because of memory loss, to testify concerning the basis for the identification. United States v. Owens, 484 U.S. 554, 564 (1988). Although Owens did not address the question of a witness who feigned memory loss, no other Supreme Court decision has addressed that point either."
Use Note: no mention of Crawford.
HOMICIDE - SECOND DEGREE MURDER PREDICATED ON GROSSLY NEGLIGENT FIREARM DISCHARGE
People v. Robertson (2004) Cal.4th , 04 C.D.O.S. 7682 (Cal. Supreme Court, 8/19/04, S118034)
defendant could be convicted of second degree felony murder based upon the predicate offense of discharging a firearm in a grossly negligent manner (Pen Code, sec. 246.3) Merger doctrine did not bar instruction on second degree murder based upon a felony-murder theory. (C.f., People v. Ireland (1969) 70 Cal.2d 522.)
IMMIGRATION - PETTY THEFT WITH PRIOR NOT DEPORTABLE OFFENSE
Rusz v. Ashcroft (2004) F.3d , 04 C.D.O.S. 6937 (9th Cir. 8/2/04, 0272081)
Felony petty theft with prior is not a crime for which a sentence of one year or longer may be imposed under 8 U.S.C. sec. 1227(a)(2)(A)(i) and therefore did not subject petitioner to deportation (removal).
INFORMANTS - PLACING INFORMANT IN DEFENDANT'S CELL
Randolph v. California (2004) F.3d , 04 C.D.O.S. 7633 (9th Cir. 8/19/04, 03-16064)
If "State places a cooperating informant in a jail cell with a defendant whose right to counsel has attached, and if the informant then makes a successful effort to stimulate a conversation with the defendant about the crime charged, the State thereby violates the defendant's Sixth Amendment rights under Massiah v. United States, 377 U.S. 201 (1964). Because the district court failed to make proper factual findings, we vacate the district court's denial of Randolph's Massiah claim and remand for factfinding." See United States v. Henry, 447 U.S. 264 (1980).
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.
JURY INSTRUCTION - RESPECT MAJORITY OPINION - DYNAMITE INSTRUCTION
People v. Hinton (2004) Cal.App.4th , 04 C.D.O.S. 7376 (Third Dist., 8/12/04, C043690)
Sacramento Judge Brian Van Camp told deadlocked jurors that the case must be decided by a jury at some point, that a trial necessitated a substantial investment in time and resources, that told jurors holding a minority position to "respect the majority opinion" and to "question their own judgment if a majority of the jurors take a different view of the case." "With this, the judge acted in clear and prejudicial violation of the California Supreme Court's holding in People v. Gainer (1977) 19 Cal.3d 835." Reversed.
The citation to a 1977 case was a not-so-subtle way of telling Judge Van Camp that he should read the law, but just in case it might not have been enough warning, the appellate court followed by saying: "When he gave the jury instruction, the judge had the benefit of Gainer, supra, 19 Cal.3d 835, which is now the established law of this state and has been so for more than 25 years. He also had the benefit of decisions decided since that time that refer directly to Gainer, such as Inouye, supra, 126 Cal.App.3d 648. To avoid error, the judge merely needed to give due respect to precedent by familiarizing himself with the very authority he cited (Inouye), a brief opinion consisting of approximately two and one-half pages and slightly more than 1,000 words .... Abraham Lincoln wrote: "[You ask] ' the best mode of obtaining a thorough knowledge of the law' is received. The mode is simple, though laborious, and tedious. It is only to get the books, and read, and study them carefully . . . . Work, work, work, is the main thing." (Lincoln, Letter to John M. Brockman, Sept. 25, 1860 in Collected Works of Abraham Lincoln (Basler edit., 1953) vol. 4, p. 121.) Since our 16th president's day, we have been given a plethora of aids to lighten the burden of determining what the law is on any given subject, yet this trial judge failed even to undertake the modest endeavor of consulting the most obvious sources. The life of a judge is not meant to be one of ease."
Ed. Note: That's about the worst woodshedding of a judge I've seen in a long time.
JUVENILES - ONE JUDGE CANNOT UNDO ANOTHER'S ORDER
In re Kasaundra D. (2004) Cal.App.4th , 04 C.D.O.S. 7297 (Second Dist., 8/10/04, B169043)
Where two or more 602 petitions are filed under the same superior court case number, an order terminating jurisdiction issued by the judge presiding over proceedings on two of the petitions requires proceedings on the other petition to cease. "To allow a second judicial officer to look at the same facts and reach an opposite conclusion concerning jurisdiction--and then proceed to disposition on the ground that the first judicial officer 'should have more closely considered what it was doing' --would undermine the integrity of final judicial rulings."
LIQUOR TO MINORS - SOCIAL HOST MAY BE PROSECUTED
In re Jennings (2004) Cal.4th , 04 C.D.O.S. 7765 (Cal. Supreme Court, 8/23/04, S115009)
Social host who provided alcohol to minor who thereafter injured another could be prosecuted under Business & Professions Code section 25658(c), and DA did not need to prove knowledge of age, but defendant entitled to present evidence of mistake of fact as to age. Reversed.
In addition, statute does not apply to ordinary social host who simply buys liquor for everyone in the party. Here, host had specifically invited a few others, and he bought beer for them.
Use Note: I'm not sure I see the distinction between this scenario and the social host. Maybe if you get lots of beer ahead of time in case people drop by you're okay, but not if you send your wife out to get some six-packs?
MISCONDUCT - PROSECUTORIAL - ARGUING INCONSISTENT THEORIES
Shaw v. Terhune (2004) F.3d , 04 C.D.O.S. 7259 (9th Cir. 8/10/04, 0216829)
Assertion that due process violated when prosecutor advanced factually inconsistent arguments in prosecuting two co-defendants for "personal use" of weapon not reached because there was sufficient evidence for jury to convict petitioner without implicating the "factual tension."
While the court did "not take lightly the allegation that a prosecutor misled the jury during his closing argument," and would be "loath to endorse a prosecutorial decision to seek convictions against two men on identical evidence when only one ... could have committed the crime," here there was enough evidence from which both juries could have concluded that both men had personally used a gun in the robbery, and the prosecutor could have argued in good faith. (But see generally Donnelly v. DeChristoforo, 416 U.S. 637, 648-49 (1974) (Douglas, J., dissenting) ("The function of the prosecutor under the Federal Constitution is not to tack as many skins of victims as possible to the wall. His function is to vindicate the right of people as expressed in the laws and give those accused of crime a fair trial." ).
MISCONDUCT - PROSECUTORIAL - IMPROPER QUESTIONING AND VOUCHING, PLUS COURT'S APPROVAL
United States v. Combs (2004) F.3d , 04 C.D.O.S. 7070 (9th Cir. 8/5/04, 0250485)
Government conceded on appeal that it was improper for prosecutor to question defendant about whether police officer was lying. United States v. Sanchez, 176 F.3d 1214, 1219 (9th Cir. 1999) (holding it is error "for a prosecutor to force a defendant to call a [testifying government agent] a liar" )
This error was plain (standard used when defense counsel does not object), "compounded by impermissible vouching during closing argument [prosecutor argued that cops could be fired for committing perjury and thus had to be telling the truth], affected Combs's substantial rights, and seriously affected the fairness and integrity of his trial, we must also reverse Combs's conviction for manufacturing methamphetamine."
"The prejudicial effect of the improper questioning was compounded when the district judge [Hon. Nora Manella] placed upon it her imprimatur. She twice chastised Combs on the stand and instructed him to answer the prosecution's question about the truthfulness of agent Bailey's trial testimony.... We cannot presume that the jury either did not notice the district court's reprimand or that it did not affect the verdict because the jury comprehended that the district judge was insisting that Combs answer questions that were merely collateral, as the government contends."
MISCONDUCT - PROSECUTORIAL - INSULTING DEFENSE COUNSEL
People v. Cole (2004) Cal.4th , 04 C.D.O.S. 7469 (Cal. Supreme Court, 8/16/04, S027766)
Prosecutor argued that defense counsel was attempting to "mislead," "deceive," or give the "wrong idea" to, the jury; was "sneaky" ; was "unfair" to the jury and to the characterization of evidence and the law; and "wasn' t being straight" with the jury.
Issue waived on appeal for failure to object. "A timely objection and admonition by the trial court at the outset might have restrained the prosecutor's aggressiveness before it became so pervasive." In any event, there was no misconduct because "Each of the statements about defense counsel was made in the context of rebutting a statement defense counsel had made during his closing argument."
Use Note: object!!!!!
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.
NEW TRIAL - STANDARD OF REVIEW ON APPEAL
People v. Ault (2004) Cal.4th , 04 C.D.O.S. 7463 (Cal. Supreme Court, 8/16/04, S119948)
Standard of review when trial court grants defendant's motion for new trial is abuse of discretion. Standard when it is denied is independent review as mixed question of law and fact (People v. Nesler (1997) 16 Cal.4th 561 [plurality].)
Court follows "longstanding principle that an order granting, as opposed to denying, a new trial is reviewed liberally, particularly with regard to the trial court's finding that an error or irregularity in the original trial was prejudicial."
People v. Marlow and Coffman (2004) Cal.4th , 04 C.D.O.S. 7642 (Cal. Supreme Court, 8/19/04, S011960)
Trial court did not err in denying the motion. Gravity of offenses weighs in favor of a change of venue, but does not compel it. (People v. Jenkins (2000) 22 Cal.4th 900, 943.) San Bernardino County has fourth largest population in state. Venue changes are seldom granted from counties of this size. (See People v. Fauber (1992) 2 Cal.4th 792, 818 [Ventura County].) Status of the victim and the accused - neither well known. Although some of the media coverage of this case referred to defendants as transients, Marlow in fact had friends and relatives who lived in San Bernardino County and himself had lived in the county for a time. These factors, therefore, do not militate in favor of a venue change. Pretrial publicity, while extensive, substantially predated the trial. And in the course of the actual voir dire, all of the jurors eventually seated who said they remembered hearing about the case indicated that pretrial publicity would not prevent them from acting as fair and impartial jurors. That neither Coffman nor Marlow exhausted their peremptory challenges strongly suggests the jurors were fair and that the defense so concluded. (People v. Cooper (1991) 53 Cal.3d 771, 807.)
PERJURY - FALSE NOMINATION PAPER - STATUTE OF LIMITATIONS
People v. Guevara (2004) Cal.App.4th , 04 C.D.O.S. 6888 (Second Dist., 7/29/04, B163177)
Statute of limitations for offense of filing false nomination papers (Elec. Code sec. 18203) is four years from date of discovery.
PERJURY - MATERIALITY
People v. Rubio (2004) Cal.App.4th , 04 C.D.O.S. 7589 (Fifth Dist., 8/18/04, F043941)
2003 version of CALJIC No. 7.20 correctly informs jury that false statement must be material before defendant can be found guilty of perjury. But instruction then incorrectly defines a false material statement as one that "could influence the outcome of the proceedings in which it is uttered." Correct definition one that "could probably have influenced the outcome" of the proceeding in which it is uttered. (People v. Pierce (1967) 66 Cal.2d 53, 61.)
PRIORS - COHABITANT ABUSE IN TORTURE-MURDER CASE
People v. Cole (2004) Cal.4th , 04 C.D.O.S. 7469 (Cal. Supreme Court, 8/16/04, S027766)
Even if it was abuse of discretion to admit misdemeanor cohabitant abuse evidence in torture-murder case, error harmless under either Watson or Chapman.
PRISONERS - DIRTY TEST AS BASIS FOR FINDING OF DRUG POSSESSION
In re Dikes (2004) Cal.App.4th , 04 C.D.O.S. 7573 (First Dist. 7/28/04, A104121)
Drug test satisfied the "some evidence" standard of proof for prison disciplinary proceedings.
PUNISHMENT - "SCARLET LETTER"
United States v. Gementera (2004) F.3d , 04 C.D.O.S. 7197 (9th Cir. 8/9/04, 0310103)
Supervised release [probation] condition imposed by Hon. Vaughn Walker that required convicted mail thief to spend a day standing outside a post office wearing a signboard stating, "I stole mail. This is my punishment" is legal. Ninth Circuit finds that punishment was not for the purpose of humiliation, even though Walker said "it should be humiliation ...". The court did comment that the condition was "somewhat crude."
Court also held that shaming is not violation of cruel/unusual punishment prohibition.
Note Hawkins, J. dissent, citing to People v. Hackler, 16 Cal. Rptr. 2d 681, 686-87 (Cal. Ct. App. 1993). "A fair measure of a civilized society is how its institutions behave in the space between what it may have the power to do and what it should do. The shaming component of the sentence in this case fails that test. 'When one shames another person, the goal is to degrade the object of shame, to place him lower in the chain of being, to dehumanize him.'"
Ed. Note: Judge Hawkins got it right. This punishment is nothing but humiliation and shaming, and Judge Walker degraded the prisoner standing before him and dehumanized him.
PUNISHMENT - WEB VIDEO CAMERA IN HOLDING CELL
Demery v. Arpaio (2004) F.3d , 04 C.D.O.S. 7145 (9th Cir. 8/6/04, 0315698)
Fourteenth Amendment, which prohibits punishment of pretrial detainees (see Bell v. Wolfish (1979) 441 U.S. 520, 535) forbids use of webcam in Maricopa County Jail. When announcing this new policy, the county sheriff said, "When those johns are arrested, they can wave to their wives on the camera." One of the cameras even captured images of the toilet area in the women's cell. Note Bea, J. dissent: Judge Bea finds no problem with the webcams. He compares it to staged "perp walks" (which, by the way, have in some cases been found to violate the Fourth Amendment – see Lauro v. Charles, 219 F.3d 202, 213 (2d Cir. 2000).)
RIGHTS - PERSONAL PRESENCE
People v. Cole (2004) Cal.4th , 04 C.D.O.S. 7469 (Cal. Supreme Court, 8/16/04, S027766)
Defendant's presence at bench conferences, hearing related to defendant's communications with the attorney, jury instruction conferences, or continuance motions was not necessary under state or federal constitution. No showing that it could have aided in cross-examination or contributed to fairness of procedure.
SEARCH & SEIZURE - STUDENT'S LOCKER
In re Cody S. (2004) Cal.App.4th , 04 C.D.O.S. 6899 (Fourth Dist., 7/29/04, E034514)
Order to minor that he remove his items from his gym locker did not constitute a search, but simply the enforcement of a school rule.
SEARCH & SEIZURE - TERRY STOP BASED ON ANONYMOUS TIP UNLAWFUL
People v. Jordan (2004) Cal.App.4th , 04 C.D.O.S. 7314 (Fifth Dist., 8/10/04, F043779)
Anonymous phone call of man threatening to shoot people was not sufficient for Terry stop even though defendant fit the description. Information about location and appearance are not enough under Florida v. J.L. (2000) 529 U.S. 266. The officer did not see any suspicious activity and the informant did not predict the defendant's behavior.
SECURITIES FRAUD - KNOWLEDGE OF ILLEGALITY NOT NECESSARY
United States v. Tarallo (2004) F.3d , 04 C.D.O.S. 7717 (9th Cir. 8/20/04, 02-50252)
defendant may commit securities fraud "willfully" in violation of 15 U.S.C. sec 78ff and 17 C.F.R. sec 240.10b-5 even if he did not know at the time of the acts that the conduct violated the law. Defendant may commit securities fraud "willfully" by intentionally acting with reckless disregard for the truth of material misleading statements. 15 U.S.C. § 78ff is not facially unconstitutional as a violation of Apprendi v. New Jersey, 530 U.S. 466 (2000).
SEVERANCE - OF DEFENDANTS - HARMLESS ERROR (DEATH PENALTY CASE)
People v. Marlow and Coffman (2004) Cal.4th , 04 C.D.O.S. 7642 (Cal. Supreme Court, 8/19/04, S011960)
"Even were we to conclude the trial court abused its discretion in denying severance, the same independent evidence of defendants' guilt would lead us to conclude defendants have not demonstrated a reasonable probability of a more favorable outcome as to either guilt or penalty had severance been granted, as would be required for reversal. That evidence, as recited above, virtually ensured the jury would reach the verdicts it did."
SEX OFFENSES - RAPE - TERM "FORCE" HAS NO SPECIAL DEFINITION
People v. Griffin (2004) Cal.4th , 04 C.D.O.S. 7208 (Cal. Supreme Court, 8/9/04, S109734)
Trial court had no duty to instruct sua sponte on the commonly understood definition and usage of the term "force" as it is used in the rape statute. Court distinguishes People v. Cicero (1984) 157 Cal.App.3d 465 (conviction forcible lewd acts on a minor requires evidence of "physical force substantially different from or substantially greater than that necessary to accomplish the lewd act itself." (Id. at p. 474).)
SEX OFFENSES - REGISTRATION - JUVENILE OUT OF STATE OFFENSE
Beene v. Terhune (2004) F.3d , 04 C.D.O.S. 7607 (9th Cir. 8/19/04, 03-15678)
California parolee could be requires to register as sex offender based upon 1972 Arkansas offense that had same elements as California law.
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 - HABEAS CORPUS - FEDERAL
Hubbart v. Knapp (2004) F.3d , 04 C.D.O.S. 7401 (9th Cir. 8/13/04, 03-16877)
Commitment Sexually Violent Predator Act; Welfare & Institutions Code section 6600, et seq., does not violate federal due process and equal protection.
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.
TORTURE-MURDER - EVIDENCE OF AND INSTRUCTIONS
People v. Cole (2004) Cal.4th , 04 C.D.O.S. 7469 (Cal. Supreme Court, 8/16/04, S027766)
Various challenges to jury instructions and sufficiency of the evidence rebuffed.
TORTURE-MURDER - EVIDENCE OF VICTIM'S SUFFERING PRIOR TO DEATH
People v. Cole (2004) Cal.4th , 04 C.D.O.S. 7469 (Cal. Supreme Court, 8/16/04, S027766)
Trial court acted within its broad discretion in admitting evidence of victim's suffering. Probative value not substantially outweighed by prejudicial effect. The "prejudice" referred to in Evidence Code section 352 is "evidence that uniquely tends to evoke an emotional bias against a party as an individual, while having only slight probative value with regard to the issues." (People v. Crittenden, supra, 9 Cal.4th 83, 134.) "Graphic evidence in murder cases is always disturbing and never pleasant." Although evidence of the suffering was "indeed disturbing, it was not unduly shocking or inflammatory, especially considering that proof of the torture-murder special circumstance required evidence of commission of a kind of act calculated to cause extreme pain, and that both murder by torture and the torture-murder special circumstance required evidence of intent to inflict extreme pain."
VENUE - NO ABUSE TO DENY
