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.
