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.)
