Reasonable Doubts - March 8, 2010
Child abuse - concealing birth
People v. Warwick (G041970, 4th Dist, 3/5/10) Cal.App.4th
Defendant's actions of concealing birth of child, who was very ill when finally found, supported great bodily injury enhancement. Failure to act may constitute personal infliction of great bodily injury, at least under these circumstances.
Gangs - prejudicial error in admitting gang evidence
People v. Memory (C054422, 3d Dist, 3/5/10) Cal.App.4th
San Joaquin County Superior Court Judge Linda Lofthus erred prejudicially (requiring reversal) in admitting evidence of motorcycle gang membership when there was no foundation that Jus Brothers gang was either a gang or a criminal enterprise, but was used to show criminal disposition. Limited probative value to show identity and bias "could have been handled with considerably less evidence," and the evidence was inflammatory. Error compounded by prosecutor's argument linking Jus Brothers to Hell's Angels.
Habeas corpus - federal - exclusion of third party confession later recanted
Rhoades v. Henry (07-99022, 9th Cir, 3/8/10) F.3d
No error to exclude third party confession made while party drunk, which he recanted when sober, and which was not supported by the evidence. Third party also had alibi. Statement lacked "persuasive assurance of trustworthiness." (See Chambers v. Mississippi (1973) 410 U.S. 284, 300-301.)
Illegal reentry - multiple errors
United States v. Arias-Ordonez (08-10259, 9th Cir, 3/8/10) F.3d
Order instructing alien to report for removal erroneously told him he had no admnistrative remedies and he was never told he had a right to reopen to seek voluntary departure. Although conceding the errors, government nevertheless appealed district court's ruling, arguing that subsequent summary reinstatements of flawed removal could support criminal indictment for illegal reentry. "We think not," Ninth Circuit panel says, and affirms court's dismissal of indictment. A defendant is allowed to collaterally challenge a prior deportation underlying a criminal charge where deportation eliminated right to judicial review. (United States v. Mendoza-Lopez (1987) 481 U.S. 828.)
