ElectricLawyer

Reasonable Doubts - April 14, 2010

Credits - retroactive application of PC 4019

People v. Landon (A123779, 1st Dist, 4/13/10) Cal.App.4th

Siding with the Third District's decision in People v. Brown (2010) 182 Cal.App.4th 1354 and disagreeing with the Fifth District's ruling in People v. Rodriguez (2010) 182 Cal.App.4th 535, First District holds that defendant is entitled to retroactive application of PC 4019, which doubles the amount of presentence conduct credits a defendant sentenced to state prison may earn.

Drugs - possession of Ecstasy

People v. Becker (E047898, 4th Dist, 4/13/10) Cal.App.4th

Investigator's testimony sufficient to prove that Ecstasy is either a controlled substance or an analog of a controlled substance, to wit, methamphetamine, and therefore possession is punishable under Health & Safety Code section 11377. Information charging defendant with possession of Ecstasy gave adequate notice. There was no need to allege that it was an analog.

DUI - sentencing

People v. Landon (A123779, 1st Dist, 4/13/10) Cal.App.4th

Even though record failed to establish that out-of-state convictions were felonies, and thus there is no proof defendant was statutorily ineligible for probation under Penal Code section 1203(e)(4), defendant did not suffer prejudice, as defendant had six California misdemeanor convictions and four Louisiana convictions. She was on probation for two out-of-county DUI's. She pleaded guilty to a fifth DUI.

New trial - failure to conduct Marsden hearing

People v. Reed (A123967, 1st Dist, 4/13/10) Cal.App.4th

Alameda County Superior Court Judge Trina Thompson-Stanley erred by failing to conduct a hearing on defendant's request for a new trial based on incompetence of counsel. His attorney did not make such a motion, even though defendant requested it, because counsel thought "he is much better or [sic] having his appellate attorney argue any issues of incompetence." Judge Thompson-Stanley compounded counsel's misadvisement (IAC must generally be raised by habeas, not appeal) by telling defendant she could not consider his motion and that it was something "an appellate lawyer will review with you...." Error not harmless beyond a reasonable doubt. Remanded.

Restitution - abuse of discretion to award windfall

People v. Chappelone (A121763, A121764, 1st Dist, 4/13/10) Cal.App.4th

Solano County Superior Court Judge Allan P. Carter abused his discretion in awarding restitution to victim Target Stores which amounted to a windfall. The items stolen were valued at their full retail price, even though most of them were damaged to some extent before defendants (one of whom was an employee in charge of sorting through damaged items) stole them. The court also abused its discretion in both ordering restitution and allowing Target to keep the recovered merchandise. A victim is not entitled to restitution for value or property returned, except to the extent there was some loss of value to the property. (People v. Rivera (1989) 212 Cal.App.3d 1153, 1162.) Ordering restitution for cost of Target's investigation and storage of recovered merchandise was proper, however. Restitution order did not violate Sixth Amendment jury trial right, as there is none. (People v. Wilen (2008) 165 Cal.App.4th 270, 288-289.)

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Reasonable Doubts - April 13, 2010

Counsel - court's replacement of appointed counsel

People v. Noriega (S160953, CA Supreme Court, 4/5/10) Cal.4th

Replacing appointed counsel with another court-appointed attorney, which the court did because it perceived a conflict, did not violate defendant's right to counsel under state or federal constitution. Distinguishes United States v. Gonzalez-Lopez (2006) 548 U.S. 140, where trial court refused retained counsel's request to appear pro hac vice or to assist in defense. Supreme Court found that action denied defendant his counsel of choice, constituting structural error requiring automatic reversal. It did violate statutory law (PC 128(a)(5)) and constituted an abuse of discretion but defendant did not suffer prejudice.

Discovery - postconviction discovery in capital cases

People v. Superior Court (Pearson) (S17117, CA Supreme Court, 4/8/10) Cal.4th

Penal Code section 1054.9, which permits postconviction discovery for defendants sentenced to death, does not amend Proposition 115's reciprocal discovery statutory scheme because Prop. 115 governs only pretrial discovery and does not prohibit postconviction discovery. Therefore, fact that Penal Code section 1054.9 was enacted with less that a 2/3 majority does not invalidate the statute.

Drugs - implied refusal to participate in Prop. 36

People v. Friedeck (B213944, 2d Dist, 4/8/10) Cal.App.4th

Defendant refused drug treatment as condition of deferred entry of judgment (DEJ). (Pen. Code sec. 1000 et seq.) Refusal rendered him ineligible for probation under Proposition 36. (Pen. Code sec. 1210 et seq.) Agrees with People v. Strong (2006) 138 Cal.App.4th Supp. 1.

Plea bargains - local procedure

Alvarez v. Superior Court (People) (A125626, 1st Dist. 4/8/10) Cal.App.4th

Trial court's judicial assignment procedure, which limited the judges who were authorized to accept plea agreements (to discourage forum shopping) is not invalid even though it was not promulgated as a local rule. Presiding judge has plenary authority over judicial assignments under Government Code section 69508(a) and rule 10.603. Procedure did not conflict with Code of Civil Procedure section 166(a)(3) (power of judges to hear matters).

Pornography - sending harmful matter to child

People v. Nakai (E046559, 4th Dist, 4/2/10) Cal.App.4th

Defendant properly convicted of attempting to send harmful matter to a minor with intent to seduce. (Pen. Code sec. 667, 288.2(a).) No error in refusing to instruct on offense of knowingly sending harmful matter to a minor, Penal Code section 313.1(a), because chat room conversation showed intent to seduce and not any different intent.

Sentencing credits - retroactive application of PC 4019

People v. House (B212057, 2d Dist, 4/9/10) Cal.App.4th

Defendant entitled to retroactive application of Penal Code section 4019, granting additional conduct credits.

Sex offenses - unanimity instruction

People v. Milosavljevic (D055327, 4th Dist, 4/6/10) Cal.App.4th

Court erred in failing to include a count when giving unanimity instruction, and therefore reversal of that count required because victim testified to a number of acts, each of which would have supported conviction of the one count. Failure to give unanimity instruction lowers burden of proof and violates federal constitutional right to due process. Error is tested under Chapman.

Speedy trial - Penal Code section 1382

People v. Sutton (S166402, CA Supreme Court, 4/5/10) Cal.4th

Court limits holding of People v. Johnson (1980) 26 Cal.3d 557 to situations where lengthy delays were attributable to state's chronic failure to provide sufficient numbers of public defenders, not to delay on day-to-day basis for brief period of time (6 days) in order to permit co-defendant's appointed counsel to complete ongoing trial in another case that ran longer than anticipated.

Theft - felony appropriation of lost property

People v. Zamani (H032414, 6th Dist, 4/7/10) Cal.App.4th

Penal Code section 485 (felony appropriation of lost property) is not a specific intent crime. Refusal to give mistake of fact instruction was not prejudicial, as it was not reasonably probable a more favorable verdict would have ensued.

Venue - attempt to send harmful matter to child

People v. Nakai (E046559, 4th Dist, 4/2/10) Cal.App.4th

Because defendant was charged with (but not convicted of) attempt to commit lewd act with a child, based on arrival at sting house in Riverside, it was a proper venue for the other charges of attempting to send harmful matter to a child, even though defendant and decoy were in different counties when the matter was sent and received.

Weapons - insufficient evidence to support firearm enhancement

People v. Botello (B212183, 2d Dist, 4/9/10) Cal.App.4th

Evidence insufficient to support firearm enhancements charged under Penal Code section 12022.53(b)(c) and (d) and Penal Code section 12022.5, because there was no evidence as to which defendant fired the weapon. AG conceded that evidence insufficient to prove defendants personally used or discharged a weapon. Court rejects contention that an uncharged provision of Penal Code section 12022.53(e)(1) could be applied for the first time on appeal, holding that to do so would violated notice requirement of due process. Harmless error does not apply to failure to meet pleading requirement and prosecution forfeited right to rely on subdivision (e)(1) for the first time on appeal.

Wiretapping - recording internet chat

People v. Nakai (E046559, 4th Dist, 4/2/10) Cal.App.4th

Court rejects argument that "child" decoy violated Penal Code section 632 by preserving the chat room conversations. Applying the same standard of review as for a motion to suppress court concludes that although defendant wanted the communication to be confidential, the circumstances were such that he could not reasonably expect the communications would not be overheard or recorded. Yahoo! warned users that chat dialogues could be shared for the purpose of investigating illegal activities, and communications could be easily shared by decoy or any computer user with whom decoy shared them. Court concludes that screen shots of defendant's communications and saving or printing chat dialogues did constitute use of "recording device."

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Grace Suarez

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Another shot of my Bento legal library

Here is a record of briefs I prepared. Clicking on the document icon takes me to the document itself.

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Bento: my legal library

In this library I enter both published cases and also summaries of briefs I have written.

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Lunch with iPad

This shot illustrates one problem: The glossy screen. However, it's not as bad as it looks here because the screen is much brighter in real life. I'm using the Apple case to prop it up.

IMG_2106

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iPad: disappointing Sleeve Plus from inCase

I'm probably going to send this product back. It's so tight you can't put the iPad in with the Apple case, and the stand is so flimsy the iPad fell over once already. Bummer. Plus the Apple Store won't take it back because it's a third-party product.

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The iPad in the Kitchen

Spoiler: it survived.

Took the iPad into the kitchen tonight, with a recipe from Epic. The screen is bright and the font large, so I had no trouble reading the recipe. Clicking on the body of the recipe removed the ingredients list.

Caveat: if your kitchen qualifies for federal disaster funds after you cook, then maybe printing the recipe out (done by emailing it) might be a good idea. Otherwise, you're good to go.