ElectricLawyer

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Criminal defense lawyer, wild-eyed liberal, geek.

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2010 (46)
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June 2010

 

Reasonable Doubts - June 16, 2010

Counsel - ineffective assistance of appellate counsel
Holland v. Florida (09-5327, 6/14/10) U.S. 
One-year AEDPA statute of limitations for filing federal habeas petition is subject to equitable tolling in appropriate cases. Eleventh Circuit's standard that even grossly negligent attorney misconduct is not enough is too rigid. Matter remanded. "Collins failed to file Holland's federal petition on time despite Holland's many letters that repeatedly emphasized the importance of his doing so. Collins apparently did not do the research necessary to find out the proper filing date, despite Holland's letters that went so far as to identify the applicable legal rules. Collins failed to inform Holland in a timely manner about the crucial fact that the Florida Supreme Court had decided his case, again despite Holland's many pleas for that information. And Collins failed to communicate with his client over a period of years, despite various pleas from Holland that Collins respond to his letters."
Note: the Court mentions the attorney's name (Bradley Collins of Florida) about as many times as it could, and even reprints the letters Holland wrote to him.
Scalia and Thomas, not surprisingly, dissent, saying that there is no discretion to toll for lawyer error.

Domestic violence - admission of prior acts
People v. Johnson (A123469, 1st Dist, 6/9/10) Cal.App.4th 
Trial court properly admitted prior incidents of domestic violence under Evidence Code section 110 and 1109. Statute is constitutional, and court properly weighed prejudice under Evidence Code section 352. Court's "interest of justice" finding under Evidence Code section 1109, subdivision (e) was also correct. 

Drugs - allowing DA to reopen to prove usable amount
People v. Riley (D054660, 4th Dist, 6/14/10) Cal.App.4th 
Trial court did not err in denying motion for judgment of acquittal and allowing DA to reopen to present evidence that amount of marijuana was usable. A court always has discretion to allow the prosecution to reopen after a Penal Code section 1118 motion if it is convinced the failure to present evidence was a result of inadvertence or mistake and not an attempt to gain a tactical advantage. (People V. Goss (1992) 7 Cal.App.4th 702, 708.) Appellate court admits it found no published case where a prosecutor was allowed to reopen a case after a defendant moved for judgment of acquittal where the evidence went to an element of the offense.

DUI - sufficient evidence of impairment
People v. Benner (G042127, 4th Dist, 6/14/10) Cal.App.4th 
Based upon expert testimony of the effects of methamphetamine on ability to perform divided attention tasks, jury could reasonably conclude meth is a drug that "could" impair person's ability to drive, and it therefore qualifies as a drug under Vehicle Code section 23152(a). Evidence that after arrest defendant was anxious, agitated and paranoid, "which suggests she was not in the best state of mind to be driving a car," as well as failure of sobriety tests, supported conclusion that ability to drive was actually impaired to appreciable degree. Distinguishes People v. Torres (2009) 173 Cal.App.4th 977, where there was evidence defendant drove under the influence of meth, but no evidence his driving was actually impaired. 

Evidence - failure to authenticate photograph
People v. Beckley (B212529, 2d Dist, 6/9/10) Cal.App.4th 
Photograph downloaded from MySpace was not adequately authenticated by testimony of officer who downloaded it. Photograph may be authenticated by testimony of person present when it was taken, or by expert testimony. (People v. Bowley (1963) 59 Cal.2d 855; People v. Doggett (1948) 83 Cal.App.2d 405.) Court notes that expert testimony even more necessary in the case of digital photos, as they may be easily faked. Error harmless under facts of the case.

Free speech - ordinance prohibiting solicitation of employment from passing cars
Comite De Jornaleros v. Redondo Beach (06-55750, 9th Cir, 6/9/10) F.3d 
First Amendment challenge to ordinance prohibiting act of standing on street soliciting employment, business, or contributions from occupants of automobile fails, as ordinance is valid time, place, or manner restriction. (See ACORN v. City of Phoenix (9th Cir. 1986) 798 F.2d 1260, 1273.) Wardlaw dissents.

Perjury - evidence that drug test results were defendant's
United States v. Bonds (09-10079, 9th Cir, 6/11/10) F.3d 
In prosecution of Barry Bonds for denying under oath that he had taken performance enhancing drugs, government had to prove that test samples recorded actually came from Bonds. Because the trainer who obtained the samples refused to testify, the government tried to introduce evidence from the lab employee that the trainer told him they came from Bonds, and log sheets on which the lab recorded the test results. The district court ruled the evidence inadmissible as hearsay and the government appealed. Held, court did not abuse discretion in refusing to admit evidence under "residual" exception of FRE 807, or under any other exception. Log sheets only showed samples came from someone by the name of Barry Bonds. Judge Bea dissents, arguing that the statements were admissions of a party-opponent under agency theory.

Sentencing - probation conditioned on payment of fees
People v. Benner (G042127, 4th Dist, 6/14/10) Cal.App.4th 
Orange County Judge David A. Hoffer erred in conditioning grant of probation on payment of fees and costs. Remedy is to order payment as part of judgment, but not as condition of probation. 

Posted
 

Reasonable Doubts - May 9, 2010

Confessions - specific invocation of Miranda
Berghuis v. Thompkins (08-1470) U.S. 
Silence during interrogation does not invoke right to remain silent. Suspect's Miranda rights must be invoked unambiguously. (Davis v. United States, 512 U.S. 452 [right to counsel].) Police not required to stop interrogation. Kennedy opinion, with Roberts, Scalia, Thomas and Alito. Sotomayor, Stevens, Ginsburg and Breyer dissent.

Counsel - self-representation
People v. Weber (C060135, 3d Dist, 6/7/10) Cal.App.4th 
Trial court tried to give defendant Faretta warnings, but defendant interrupted with "frivolous" objections, which the appellate court found to be an attempt to introduce reversible error. Defendant was competent to waive counsel, using same standard as competency to stand trial. (Godinez v. Moran (1993) 509 U.S. 389.) Court did not have to appoint counsel at sentencing, as defendant did not make an unequivocal request.

Counsel - request for specific appointed counsel
Gressett v. Superior Court (People) (A127100, 5/28/10) Cal.App.4th 
Defendant, a former Contra Costa County prosecutor charged with numerous forcible sex offenses, was not entitled to have a particular private attorney be appointed at county expense, relying upon Harris, 19 Cal.3d 786. The attorney had represented him for 10 months, until defendant ran out of money. The appointed attorney had a good relationship with defendant, and was prepared to handle the matter (even though he might have to cross-examine former colleagues in the public defender's office). In addition, the declaration filed in support of the Harris motion did not explain why there would be duplication of effort or waste of county funds in appointing a new attorney.
Note: the county's taking a real chance here. It would not cost any more to appoint the former attorney and might even save money. Not appointing him could result in reversal of the conviction. My question is, why?

Death penalty - issues
People v. Collins (S058537, 5/27/10) Cal.4th 
Issues: denial of motion for mistrial after witness volunteered information about defendant's incarceration; no Doyle error in asking defendant why he did not tell police about alibi because he had not remained silent and instead gave inconsistent stories to police; no prosecutorial misconduct in asking "she is lying" questions (distinguishing People v. Chatman (2006) 38 Cal.4th 344); DA's "editorial comments" were "gratuitous" but de minimis and harmless; jury misconduct (conducting experiments). Court holds that juror's use of computer to diagram shooting angles was not improper because he did not use information that had not been admitted. Distinguishes People v. Hamlin (2009) 170 Cal.App.4th 1412, where juror used computer to obtain data.

Drunk driving - change of heart on test
Garcia v. DMV (A126130, 1st Dist, 5/28/10) Cal.App.4th 
Court finds that defendant refused to complete a chemical test. First, he was silent when asked to choose, then he failed to complete the breath test. Driver "cites no authority supporting his argument that an arrestee can refuse any test, then agree to the officer's choice of test, fail to complete that test, and avoid the consequences of his prior conduct by agreeing to take an initially rejected test."

Enhancements - PC 12022.55
People v. Ramirez (B213097, 2d Dist, 5/25/10) Cal.App.4th 
Because victim was inside the car at the time of the shooting, Penal Code section 12022.55 enhancement could not apply. The provision excludes people inside vehicles when the main offense is shooting at a vehicle (there are other provisions that apply).

Gangs - expert testimony re knowledge and intent
People v. Vang et al (D054343, 4th Dist, 6/7/10) Cal.App.4th 
San Diego County Superior Court Judge Michael D. Wellington erred in admitting gang expert's opinion regarding defendants' knowledge and intent, as the testimony exceeded the limits set forth in People v. Killebrew (2002) 103 Cal.App.4th 644, but error harmless. Officer's testimony was mere speculation and ultimate issues of knowledge and intent were for jury to decide. Although experts may testify on ultimate issues through hypothetical questions, they cannot testfiy as to a specific defendant's knowledge and intent. Here, the judge allowed the DA to use a thinly disguised fictional character in the hypothetical: "the prosecutor may not circumvent that rule by asking the expert a hypothetical question that thinly disguises the defendants' identity."

Hearsay - confrontation - breathalyzer accuracy tests nontestimonial
People v. Chikoski (G041014, 4th Dist, 5/6/10) Cal.App.4th 
To the extent that witnesses relied on hearsay in forming opinion about accuracy of breathalyzer test results, there was no confrontation clause violation because the accuracy reports were nontestimonial. The defendant challenged the accuracy of the Alco-Senso machine, and the arresting officer was allowed to testify to the accuracy tests conducted on the machine by another officer. The test was automated and did not involve any human analysis. Distinguishes Crawford v. Washington (2004) 541 U.S. 36, 53-54 and Melendez-Diaz v. Massachusetts (2009) 557 U.S. __ [129 S.Ct. 2527].

Juveniles - commitment to DJJ
In re D.J. (A125867, 1st Dist, 6/3/10) Cal.App.4th 
The last offense alleged in a petition and admitted was robbery. Subsequently filed charging documents alleging probation violations using mandatory Judicial Council forms were not "petitions" within meaning of section Welfare & Institutions Code section 733(c). Because robbery is a DJJ-eligible offense under section 707(b) he was properly committed to the DJJ (Youth Authority).

Juveniles - no DEJ for possession of 10 lbs of MJ
In re Damian M (D055552, 5/27/10) Cal.App.4th 
Juvenile court did not abuse discretion in denying deferred entry of judgment to minor who admitted possessing 10 lbs of marijuana for sale. Probation order that minor's parents participate in his school program did not expose him to revocation for the actions of others.

Robbery - property belonging to victim's brother
People v. Weddles (C057666, 3d Dist, 5/25/10) Cal.App.4th 
"In this robbery case, we must answer the following question: 'Am I my brother's keeper?' The answer is, 'yes.'" Thus, property taken at gunpoint from victim that actually belonged to his brother suported conviction for robbery.

Search & seizure - exigent circumstances prevent animal cruelty
People v. Chung (B212210, 2d Dist, 6/3/10) Cal.App.4th 
Police had right to enter home without warrant when they could hear dog whimpering but defendant denied even owning a dog. They were responding to citizen's call of dog howling as if in pain. (Coolidge v. New Hampshire (1971) 403 U.S. 443, 474-475.)

Search & seizure - good faith exception and inventory search
People v. Henry (A125270, 1st Dist, 5/25/10) Cal.App.4th 
Evidence seized from defendant's car was admissible under good faith exception of United States v. Leon (1984) 468 U.S. 897, as officers relied upon a broad reading of New York v. Belton (1981) 453 U.S. 454, which was in effect at the time of the seizure, and was not narrowed until later in Arizona v. Gant (2009) 556 U.S. ___. As the high court admitted, Belton had been widely understood to allow a vehicle search incident to arrest even if there was no possibility the arrestee could gain access to the vehicle. However, search could not be justified under inventory search exception because there was no evidence presented that the police had a policy governing such searches. 

Sentencing - PC 654 limitation
People v. Duarte (G041195, 4th Dist, 6/2/10) Cal.App.4th 
Agreeing with People v. Sanchez (2009) 179 Cal.App.4th 1297, court concludes sentence for street terrorism should have been stayed pursuant to Penal Code section 654 because defendant had the same intent and objective on conviction of discharging a firearm with gross negligence, and double punishment is barred.

Sentencing - credits - retroactive application of PC 4019
People v. Weber (C060135, 3d Dist, 6/7/10) Cal.App.4th 
Defendant entitled to retroactive application of PC 4019.

Sentencing - credits - retroactive application of PC 4019
People v. Keating (B210240, 2d Dist, 6/7/10) Cal.App.4th 
Court joins majority view that amendments to Penal Code section 4019 apply retroactively. See Fifth District in People v. Rodriguez (2010) 183 Cal.App.4th 1, 107 Cal.Rptr.3d 460 (Rodriguez ), and in Division two of the Fourth District in People v. Otubuah (May 6, 2010, E047271) --- Cal.App.4th --- [2010 WL 1799955] (Otubuah) ruled that that the amendments do not apply retroactively. However, in this District, Division One in People v. House (2010) 183 Cal.App.4th 1049 and Division Six in People v. Delgado (Apr. 29, 2010, B213271) --- Cal.App.4th -- [2010 WL 1718097], have reached the opposite conclusion, holding that the amendments are retroactive. The Third District and {Slip Opn. Page 21} First District (Division Two, Three and Five) have also held that the amendment to 4019 should be retroactively applied to individuals whose judgments have not yet become final. (People v. Brown (2010) 182 Cal.App.4th 1354, 107 Cal.Rptr.3d 286 (Brown); People v. Landon (Apr. 13, 2010, A123779) --- Cal.App.4th -- [2010 WL 1444011]; People v. Pelayo (May 6, 2010, A1230420 --- Cal.App.4th --- [2010 WL 1796658] People v. Norton (May 5, 2010 A1236590) --- Cal.App.4th --- [2010 WL 1783364].) 

Sex offender registration - retroactive application of statute
Carr v. United States (08-1301, 6/1/10) U.S. 
Statute criminalizing failure to register as sex offender after moving to another state (SORNA, 18 U.S.C. section 2250(a)) requires that travel take place after enactment of statute, based on reading of statute and use of present tense, which include present and future, but not past. 

Theft - embezzlement
People v. Casas (E048184, 4th Dist, 5/25/10) ca4t 
Car dealership salesman who used traded-in car to follow buyer home to collect down payment (legit) but who then took money and car, drove 400 miles to buy drugs, committed embezzlement even if he intended to eventually return the car and money. Agrees with (People v. Sisuphan (2010) 181 Cal.App.4th 800, 813).

Witnesses - deportation of sole defense witness
People v. Jacinto (S164011, 5/27/10) Cal.4th 
Deportation of sole defense witness did not violate right to compulsory process. (U.S. Const., 5th, 6th, 14th Amends) because it was the sheriff who released the witness to immigration authorities, not the DA. Deputies assigned to the jail are not automatically members of the prosecution team. "The federal government's power over immigration issues is supreme. (See generally De Canas v. Bica (1976) 424 U.S. 351, 354 ["Power to regulate immigration is unquestionably exclusively a federal power."]; People v. Kim (2009) 45 Cal.4th 1078, 1108 [Congress has plenary power over immigration].) Faced with an immigration detainer from ICE, the sheriff and his employees properly complied, as a matter of comity, by releasing Esparza to ICE's custody. Accordingly, defendant fails to establish a violation of his constitutional rights under either the state or federal compulsory process clauses." In any event, defense could have taken steps to try to prevent deportation. As material witness, the alien could come within 8 CFR 215.3 (temporary order not to depart).

Posted