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Reasonable Doubts - Nov 30, 2010

Tue, 30 Nov 2010 14:17:46 -0800

Certificate of rehabilitation - discretionary

People v. Blocker (A126229, First Dist., 11/23/10) Cal.App.4th

Trial court does not abuse discretion by denying certificate of rehabilitation to otherwise-qualified candidate who maintains his innocence.

Death penalty - issues

People v. Foster (S058025, 11/18/10) Cal.4th

Issues: use of physical restraints (stun belt and leg restraints) forfeited by failure to object, and no evidence they were visible to jury. Voir dire of prospective jurors not inadequate, and forfeited anyway by failure to object. Admission of evidence of prior crimes proper to prove identity, common plan and intent. Cross-examination of defendant regarding prior crimes proper because by denying guilt, defendant placed at issue his identity. Third party contacts with jurors harmless, and unrelated to case. Trespass not lesser included offense of burglary, only lesser related offense. Jury properly instructed on burden of proof with respect to identity. Jury instructions concerning prior crimes were sufficient to properly inform jury that it had to find the priors true by a preponderance, but offenses had to be found true beyond reasonable doubt, and if jury relied on priors to prove essential fact, it had to find prior true BRD. Evidence was sufficient to support convictions. No prosecutorial misconduct. Penalty phase arguments rejected. Full affirmance.

Drunk driving - great bodily injury enhancement

People v. Poroj (E048123, Fourth Dist., 11/18/10) Cal.App.4th

Penal Code section 12022.7(a) (great bodily injury enhancement) does not require a showing of intent to inflict great bodily injury that is separate from intent to commit the crime itself.

Eavesdropping - by police - dismissal not mandated

People v. Shrier (B218424, Second Dist., 11/23/10) Cal.App.4th

Appellate court reverses magistrate's dismissal of criminal charges as penalty for intentional eavesdropping of confidential attorney-client conversations by law enforcement. Remedy of suppression and/or other sanctions to be imposed by the trial court is sufficient, because prosecutor was not involved, distinguishing Morrow v. Superior Court (1994) 30 Cal.App.4th 1252. Privilege existed even though co-defendants' counsel were present, since there was in place a joint defense agreement. Court criticizes Dept of Justice personnel who did the eavesdropping.

Evidence - DNA on discarded cigarett butt

People v. Gallego (C061749, Third Dist., 11/22/10) Cal.App.4th

Cigarette butt that defendant discarded by throwing it on public sidewalk, collected and DNA-tested by police, did not constitute a search. Distinguishes intrusion cases of Arizona v. Hicks (1987) 480 U.S. 321 and Skinner v. Railway Labor Executives' Assn. (1989) 489 U.S. 602.

Evidence - newly discovered evidence required new trial

People v. Soojian (F058589, Fifth Dist., 11/24/10) Cal.App.4th

Admitting that "it is unusual for an appellate court to conclude that newly discovered evidence entitles a defendant to a new trial as a matter of law," court concludes that newly discovered evidence raised significant issues as to verdict's correctness.

Gangs - enhancements

People v. Carr (B219279, Second Dist., 11/23/10) Cal.App.4th

Penal Code section 190.2(a)(22) special circumstance requires proof that defendant had knowledge of gang's criminal purpose (People v. Castenada (2000) 23 Cal.4th 743) and that the murder was carried out to further the gang's criminal activities. Evidence sufficient for special circumstance and also for gang enhancements.

Prosecutorial misconduct - cured by court

People v. Carr (B219279, Second Dist., 11/23/10) Cal.App.4th

Prosecutor probably committed error under Griffin v. California (1965) 380 U.S. 609 by commenting on defendant's failure to call an alibi witness, but court cured error by admonishing jury to ignore her statement.

Search & seizure - opening dryer door during search

People v. Smith (B219915, Second Dist., 11/29/10) Cal.App.4th

Opening dryer door during search for a person was reasonable. Def placed something in the dryer which made a metallic sound, and officer could smell fresh marijuana, as well as see a box filled with cash and individual plastic baggies. Officer claimed he opened the door to stop the dryer because of the noise.

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Reasonable Doubts - November 19, 2010

Fri, 19 Nov 2010 15:07:38 -0800

Appeals - of probationary orders that were final

In re Shaun R. (H035112, Sixth Dist., 9/29/10) Cal.App.4th

The phrase "all previous Orders of the Court ... remain in full force" does not operate to revive a previous order that had become final and was therefore nonappealable. "It does not turn an otherwise nonappealable order into an appealable order."

Appeals - appeal following summary denial of writ petition

People v. Jahansson (H034446, Sixth Dist., 9/30/10) Cal.App.4th

People could appeal grant of suppression motion after previous writ petition was summarily denied. Disagrees with People v. Carrington (1974) 40 Cal.App.3d 647 (DA had to elect between writ review and appeal), and agrees with People v. Allison (1988) 202 Cal.App.3d 1084. Summary denial is not a "decision" within meaning of Penal Code section 1538.5(j).

Child molestation - no specific child

People v. Phillips (B221932, Second Dist., 10/5/10) Cal.App.4th

Evidence supported conviction for violating Penal Code section 647.6(a)(1) (annoying or molesting a child) even though there was no evidence masturbation was directed at a specific child. Defendant was masturbating in his car, parked in front of a school. He was seen by a girl who walked by his car.

Confessions - midstream Miranda

People v. Camino (G041887, Fourth Dist., 10/4/10) Cal.App.4th

Substantial evidence supported trial court's ruling that police did not use a deliberate two-step strategy to violate Miranda. See Oregon v. Elstad (1985) 470 U.S. 298; Missouri v. Seibert (2004) 542 U.S. 600.

Credits - retroactive application of Penal Code section 4019

People v. Rasmussen (A125942, First Dist., 11/9/10) Cal.App.4th

Penal Code section 4019 amendment that increases conduct credits against sentence is properly applied retroactively. Court notes that Supreme Court has granted review on several cases raising this issue.

Death penalty - issues

People v. Russell (S075875, 11/15/10, CA S.Ct.) Cal.4th

Issues: lying-in-wait theory of murder; denial of jury view; interference with deliberations and jury coercion; consciousness of guilt instruction; unanimity instruction on theory of murder; denial of admission of defendant's statements (by defendant); excusal of jurors; victim impact evidence; uncharged acts; double-counting specials as aggravators; circumstances of crime as aggravator; penalty phase instructional challenges.

Full affirmance.

Discovery - of CI identity

Davis v. Superior Court (B216345, Second Dist., 7/22/10) Cal.App.4th

Disclosure of confidential informant is not mandatory even when informant was percipient witness but court had duty to hold in camera hearing to determine if CI can given exculpatory evidence. "[T]he balance between the public interest in protecting the flow of information to law enforcement officers and Davis's right to prepare his defense is struck by having an in camera hearing prior to any disclosure."

Drugs - transportation of medical marijuana

People v. Wayman (G042582, Fourth Dist., 10/15/10) Cal.App.4th

Jury properly instructed on transportation of medical marijuana when it was told that defendant must be a qualified user under the CUA (Compassionate Use Act), and the circumstances of his transportation had to demonstrate he was transporting the marijuana for his own medical use, and that the quantity transported and the method, timing, and distance of the transportation had to be reasonably related to defendant's current medical needs. (CALCRIM 2361.)

Drunk driving - admission of refusal to take PAS test

People v. Jackson (A128782, First Dist., 11/12/10) Cal.App.4th

Trial court erred in admitting evidence that defendant refused to take a preliminary alcohol screening (PAS) test. The statute itself provides that the test is voluntary and police are required to so inform a detained driver. However, because the jury was told the defendant had a right to refuse, and evidence of guilt was substantial, error was harmless.

Fees - court facilities fee

People v. Cortez (G042891, Fourth Dist., 11/10/10) Cal.App.4th

Court facilities fee under Government Code section 70373 properly imposed on each of six convictions. Because they are not criminal penalties, ex post facto prohibition is not violated.

Fleeing scene of accident - GBI enhancement

People v. Valdez (G042837, Fourth Dist., 10/12/10) Cal.App.4th

In prosecution for fleeing scene of injury accident (Veh. Code sec. 20001(a)), conviction may not be enhanced with great bodily injury enhancement (Pen. Code sec. 12022.7(a)) when injuries suffered in accident were not aggravated by defendant's failure to stop and render assistance because defendant was not committing the felony at the time of the accident that caused the injury.

Gangs - jury instruction error

People v. Aranda (D055701, Fourth Dist., 10/6/10) Cal.App.4th

Trial court's failure to include reference to DA's burden of proof (beyond reasonable doubt) in "active participation in street gang) charge was prejudicial.

Habeas corpus - federal - remand after grant on non-federal grounds

Wilson v. Corcoran (US S.Ct., 10-91, 11/8/10) U.S.

Seventh Circuit granted habeas relief to state prisoner without finding federal law violation. Matter remanded in per curiam opinion. The appeals court had required the state trial court to reconsider its sentencing determination to "prevent non-compliance with Indiana law."

Hearsay - Victim's 911 call

People v. Johnson (A124362, First Dist., 11/5/10) Cal.App.4th

Victim's 911 call reporting that her husband shot at her properly admitted at trial under hearsay spontaneous exception of Evidence Code section 1240 when victim failed to appear. No violation of Sixth Amendment confrontation clause as interpreted by Crawford v. Washington (2004) 541 U.S. 36 and Davis v. Washington (2006) 547 U.S. 813 because statement was nontestimonial. Follows People v. Cage (2007) 40 Cal.4th 965; People v. Romero (2008) 44 Cal.4th 386.

Homicide - vicarious liability for shooting when co-defendant killed by another

People v. Camino (G041887, Fourth Dist., 10/4/10) Cal.App.4th

Insufficient evidence to support finding defendant vicariously discharged a gun (Pen. Code sec. 12022.53(e)(1)) because the lone shooter (and only armed person in defendant's group), who was shot by an unknown person, could not be a principal in his own murder. (People v. Antick (1975) 15 Cal.3d 79, 91.)

Homicide - failing to instruct on heat-of-passion voluntary manslaughter

People v. Ramirez (B218413, Second Dist., 11/12/10) Cal.App.4th

Trial court erred prejudicially by failing to instruct jury on voluntary manslaughter on a heat of passion theory that defendant shot victim after victim provoked him by punching him. Even in absence of request, trial court must instruct on general principles of law relevant to issues raised by the evidence. Obligation includes giving lesser included offenses instructions. Voluntary manslaughter based on "sudden quarrel or heat of passion" is lesser and necessarily included offense of intentional murder. (People v. Breverman (1998) 19 Cal.4th 142, 153-155.)

Juveniles - probation condition that minor not approach courthouses

In re E.O. (H035462, Sixth Dist., 9/29/10) Cal.App.4th

Santa Clara County Judge Patrick Tondreau's probation condition that minor, made a ward for possession of a knife on school grounds, not approach or enter courthouses where gang-related cases were being tried is constitutionally overbroad. Justice Rushing takes Judge Tondreau to task for also making the condition difficult to understand, using an online readability tester, which ranked the wording at a 28.68 year grade level.

Leaving scene - special enhancement instruction

People v. Nordberg (B218891, Second Dist., 11/8/10) Cal.App.4th

Jury should have been instructed that defendant had to have knowledge that accident resulted in injury or was of such nature that one would reasonably anticipate it resulted in injury when defendant was charged with violating Vehicle Code section 20001(c). Error harmless because defendant's own testimony established that she knew knew the accident was of such a nature that it was probable another person had been injured.

Misconduct - prosecutorial - "Golden Rule" closing argument improper - conviction reversed

People v. Vance (A122777, First Dist., 9/29/10) Cal.App.4th

"There is a tactic of advocacy, universally condemned across the nation, commonly known as "The Golden Rule" argument. In its criminal variation, a prosecutor invites the jury to put itself in the victim's position and imagine what the victim experienced. This is misconduct, because it is a blatant appeal to the jury's natural sympathy for the victim. (See People v. Lopez (2008) 42 Cal.4th 960, 969-970 and decisions cited.)"

Nevertheless, Alameda County DA Ynostrosa made a sustained "Golden Rule" closing argument and disregarded the court's rulings sustaining defense counsel's objections. "Unfortunately, the possible prejudicial effect of the improper comments by the prosecutor was exacerbated by the trial court's passive reaction to them." [Alameda Superior Court Judge Roy Hashimoto].

"The judgment of conviction is reversed. Pursuant to Business and Professions Code section 6086.7, subdivision (a)(2), a copy of this opinion will be sent to the State Bar for such disciplinary action, if any, it may deem appropriate." Finally!

Rape - of intoxicated and unconscious woman

People v. Smith (C061805, Third Dist., 11/8/10) Cal.App.4th

Trial court's instructions on rape of intoxicated woman (CALCRIM 1002) is not incomplete or misleading. It states that a woman must be "so intoxicated that she cannot give legal consent" and defines "reasonable judgment" as being "able to understand and weigh the physical nature of the act, its moral character, and probable consequences." Instruction on rape of unconscious woman (CALCRIM 1003) correctly states that "A woman is unconscious of the nature of the act if she is unconscious or asleep or not aware that the act is occurring." The evidence supported the charge.

Resisting - resisting executive officer by actual resistance is general intent crime

People v. Rasmussen (A125942, First Dist., 11/9/10) Cal.App.4th

Penal Code section 69 (resisting executive officer by actual resistance) is a general intent crime, and jury was properly instructed. There are two ways section 69 can be violated, and here DA proceeded on the second manner, actual resistance.

Restitution - to RIAA for piracy

People v. Kelly (E048797, Fourth Dist., 10/12/10) Cal.App.4th

Recording Industry of America (RIAA) could not obtain restitution for piracy from criminal defendants because it was not a direct victim of their crimes.

Restitution - victim's estate

People v. Runyan (B218863, Second Dist., 9/24/10) Cal.App.4th

Restitution to victim's estate was proper. The estate only existed because of defendant's killing of victim.

Search & seizure - mother's consent to search of minor son's room

In re D.C. (A127228, First Dist., 9/24/10) Cal.App.4th

Mother of minor had authority to consent to search of minor's room and to override any objection he raised to search. Compare Georgia v. Randolph (2006) 547 U.S. 103 (search of adult son's room).

Search & seizure - prolonged detention

People v. Jahansson (H034446, Sixth Dist., 9/30/10) Cal.App.4th

Following People v. Glaser (1995) 11 Cal.4th 354, court holds that defendant's initial detention outside premises to be searched was lawful incident to the probation search of the premises, but continued detention in handcuffs was not reasonable under the Fourth Amendment. (People v. Stier (2008) 168 Cal.App.4th 21.

Sentencing - street terrorism sentence had to be stayed

People v. Duarte (G041195, Fourth Dist., 6/2/10) Cal.App.4th

Trial court should have stayed sentence on street terrorism count under Penal Code section 654 because defendant had same intent and objective in count of discharging firearm with gross negligence. Follows People v. Sanchez (2009) 179 Cal.App.4th 1297.

Sentencing - gang-related enhancements

People v. Yang (C062816, Third Dist., 10/13/10) Cal.App.4th

Enhancement for firearm discharge by co-principal causing death in gang-committed felony (pcs 12022.53(d) & (e)(1)) does not apply when defendant was not convicted of one of the qualifying offenses enumerated in the statute. Judgment modified to strike 25-life enhancement and 10-year enhancement for gang-committed violent felony, previously imposed but stayed, is imposed instead.

Sex offender registration - after defendant acquitted of sex offenses

People v. Mosley (G038379, Fourth Dist., 9/29/10) Cal.App.4th

The restriction forbidding registered sex offenders from living within 2,000 feet of a school or park where chidren gather constitutes punishment and therefore the facts supporting sex offender registration must be found by a jury beyond a reasonable doubt under Apprendi v. New Jersey (2000) 530 U.S. 466. Here the jury acquitted the defendant of any sexual offense and only found him guilty of misdemeanor assault. Nevertheless Orange County Superior Court Judge David A. Hotter imposed a sex registration requirement. Distinguishes In re E.J. (2010) 47 Cal.4th 1258 (imposition of residency restriction as parole condition).

Sexual battery - touching breast

People v. Smith (C061805, Third Dist., 11/8/10) Cal.App.4th

Defendant committed crime of sexual battery (touching intimate part against the will of the person being touched, for purpose of sexual arousal, sexual gratification, or sexual abuse; Penal Code section 243.4(e)(1)) when he touched breast of woman too intoxicated to resist.

Speedy trial - Penal Code section 1382

People v. Hajjah (S175307, CA S.Ct., 11/4/10) Cal.4th

Trial court correctly determined that courtroom 76 miles away was not "available" at 4:15 pm on last day to bring defendant to trial. Nor did the physical remoteness of the courtroom constitute "good cause" under Penal Code section 1382 to delay defendant's trial. As in People v. Engram (Oct. 25, 2010, S176983) __ Cal.App.4th __, "the lack of any judge or courtroom available to bring this case to trial within the statutory period resulted from chronic court congestion attributable to the state, the trial court properly concluded that good cause did not exist under section 1382 to delay defendant's trial." Dismissal upheld.

Torture - no ineffective assistance in failing to request cultural defense jury instruction

People v. Assad (C059777, Third Dist., 10/15/10) Cal.App.4th

Trial counsel was not ineffective in failing to request jury instruction that would have directed jury to consider whether evidence of defendant's cultural background (Syrian) raised reasonable doubt whether he had requisite intent to inflict torture and aggravated mayhem on his son when he physically disciplined him.

Weapons - possession of firearm after discharge from psych facility

People v. Jason K. (D055765, Fourth Dist., 10/7/10) Cal.App.4th

Trial court did not abuse discretion in holding that DA met burden of showing by preponderance of evidence that petitioner would not be likely to use firearms in safe and lawful manner under Welfare & Institutions Code section 8103(f)(6), and denying petitioner the right to possess firearms for five years after release from facility where he was detained for psychiatric evaluation under Welfare & Institutions Code section 5150. He had checked himself in a few months before and the triggering incident involved a loaded gun and his two-year old child was in the next room. Court considered effect of McDonald v. City of Chicago (2010) 130 S.Ct. 3020 (Second Amendment right to possess firearms) on the question of the burden of proof, but petitioner did not challenge constitutionality of section 8103.

Weapons - interpretation of 18 U.S.C. sec. 924(c)

Abbott v. United States (09-479, U.S. Supreme Court, 11/15/10) U.S.

Defendant is subject to highest mandatory minimum sentence specified for conduct in 18 U.S.C. sec 924(c) unless another provision of law directed to such conduct imposes a greater minimum.

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Reasonable Doubts - Nov 4, 2010

Thu, 04 Nov 2010 15:27:37 -0700

Battery - on custodial officer

People v. Dooley (C062665, Third Dist., 10/18/10) Cal.App.4th

Evidence showed victim was correctional officer in county jail, and therefore satisfied elements of "custodial officer" within meaning of Penal Code section 831.

Death penalty - issues

People v. Bacon (S079179, 10/21/10) Cal.4th

Issues: 1) trial court's exclusion of note written by defendant; 2) Miranda violation; 3) jury instructions; 4) sufficiency of evidence for prior-murder special circumstance; 5) admission of handgun possession evidence under Penal Code section 190.3(b); 6) penalty phase prejudice from failure to suppress defendant's statements; 7) challenges to the death penalty law; and 9) cumulative effect of penalty phase errors. Usual result: full affirmance.

The refusal to admit the note (containing the name, address and phone of victim) was grounded on defendant's failure to prove victim was source of information on the note, especially as it was in the defendant's handwriting.

DUI - administrative mandamus

Brenner v. DMV (A126745, First Dist., 10/18/10) Cal.App.4th

No basis for rejecting trial court's ruling granting administrative mandamus. Although officer's testimony and plaintiff's BAC results were sufficient to establish DMV's prima facie case, plaintiff presented evidence (expert testimony) that testing instrument produced results higher than accurate values, thus rebutting Department's prima facie showing with evidence that the recorded test results were inaccurate. Burden shifted back to DMV to prove by preponderance of evidence that test results were reliable. "It did not do so."

Sentencing - prior drug offenses

People v. Newton (B216215, Second Dist., 10/18/10) Cal.App.4th

Enhancement under Health & Safety Code section 11370.2(a) for prior drug offenses may be imposed even when execution of sentence on prior conviction was stayed under Penal Code section 654.

Subpoenas - role of prosecutor in third party subpoena hearing

Kling v. Superior Court (S176171, Cal. Sup. Ct., 10/18/10) Cal.4th

Prosecutor may participate and argue at hearing on documents produced as result of third party subpoena duces tecum issued by criminal defendant, and may learn of identity of subpoeanaed party and documents sought. Trial court may protect privileged information by conducting parts of the hearing ex parte. See People v. Superior Court (Humberto S.) (2008) 43 Cal.4th 737, 750-752.)

Writs - mandate or prohibition to review trial court reconsideration of habeas decision

Jackson v. Superior Court (H035137, Sixth Dist., 11/3/10) Cal.App.4th

Superior court has inherent power to reconsider and vacate order granting petition for writ of habeas corpus within 60-day time period for the People to appeal from the order, as long as no appeal has yet been filed. Superior court acted within its discretion in granting reconsideration of its order granting the petition for writ of habeas corpus. Petitioner's petition for mandate/prohibition denied.

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Reasonable Doubts - Nov 3, 2010

Wed, 03 Nov 2010 17:26:18 -0700

Homicide - insufficiency of evidence defendant shook baby to death

Smith v. Mitchell (04-55831, 9th Cir., 10/29/10) F.3d

On remand for second time from U.S. Supreme Court, Ninth Circuit reiterates grant of habeas on the grounds that no reasonable juror could have found defendant could have shaken her grandchild to death.

Jurors - denial of challenges for cause

People v. Baldwin (B217438, Second Dist., 11/2/10) Cal.App.4th

Denial of challenges for cause against jurors who did not serve because they were challenged peremptorily did not require reversal. Follows People v. Yeoman (2003) 31 Cal.4th 93, which holds question does not need to be examined because defendant could not show prejudice, as none of the challenged jurors sat. Court notes that Yeoman seems to conflict with an earlier case, People v. Bittaker (1989) 48 Cal.3d 1046, which is not even mentioned in Yeoman.

Jury selection - Batson Wheeler error

People v. Long (H033197, Sixth Dist., 10/29/10) Cal.App.4th

Case reversed because prosecutor failed to provide reasons for excluding a Vietnamese juror, where defendant (and victim) were Vietnamese. Prosecutor made vague reference to "body language" without describing it in any way, and court accepted it. "To credit such a general utterance would nullify the principle of law and would constitute the functional equivalent of 'take my word for it,' with the trial judge saying, 'Yes, I will.' Where a nonverifiable utterance is made sufficient to satisfy a principle of law, the principle is usually lost."

Note: this is a Rushing, J. opinion. He does not mince words.

Search & seizure - probable cause for traffic stop

People v. Greenwood (B220315, Second Dist., 10/28/10) Cal.App.4th

Report from DMV that car's registration was not current, without any mention of a valid temporary permit (which was affixed to the rear window) justified stop of car (which led to discovery of PCP cigarette). Distinguishes People v. Hernandez (2008) 45 Cal.4th 295.

Speedy trial - 10 day grace period does not apply to objecting defendant when codefendant requests extension

Smith v. Superior Court (A124763, First Dist., 10/28/10) Cal.App.4th

On remand from CA Supreme Court to reconsider in light of People v. Sutton (2010) 48 Cal.4th 533, court of appeal affirms grant of dismissal on speedy trial grounds. Ten-day grace period provided by Penal Code section 1382(a)(2)(B) does not automatically apply to an objecting defendant whose codefendant requested a continuance.

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Reasonable Doubts - Oct 26, 2010

Tue, 26 Oct 2010 15:20:18 -0700

Corpus delicti - erroneous admission of statement

People v. Powers-Monachello (A12435, First Dist., 10/20/10) Cal.App.4th

Although defendant's extrajudicial statements might have been introduced to determine whether he should be held to answer, they were irrelevant until the corpus delicti rule was satisfied. Rule requires that prosecution has to prove fact of the crime and existence of criminal agency before a defendant's statements may be introduced.

Guilty pleas - Marsden hearing requirement when defendant wishes to withdraw plea

People v. Sanchez (F057147, Fifth Dist., 10/19/10) Cal.App.4th

Trial court erred by failing to conduct a Marsden hearing after defendant indicated desire to withdraw his plea based on incompetence of defense counsel, and instead appointing substitute counsel. Case published to provide guidance. "That procedure includes 1) making an adequate inquiry of the defendant and his or her defense counsel, to learn the general basis for the defendant's motion; 2) conducting a Marsden hearing, if the general basis for the motion is the alleged incompetence of defense counsel; 3) relieving defense counsel and appointing a new attorney for the defendant if, and only if, "a failure to replace the appointed attorney would substantially impair the [defendant's] right to assistance of counsel." (People v. Smith (1993) 6 Cal.4th 684, 696 (Smith).)"

Juveniles - changing finding

In re E.R. (A124706, First Dist., 10/21/10) Cal.App.4th

San Francisco Superior Court Judge Lillian Sing (retired) erred when it changed its own verdict from second degree murder to first degree. No inconsistency in concluding that a defendant conspired to commit first degree murder and committed a second degree murder.

Sentencing - one-third midterm

People v. Sanders (B206569, Second Dist., 10/22/10) Cal.App.4th

Reversed for imposition of one-third midterm, not full term, for attempted murder in count 2.

Speedy trial - delay within statutory period

People v. Graves (B220129, Second Dist., 10/25/10) Cal.App.4th

Sham trial begun after trial court denied continuance for DA to secure witnesses who had not shown up did not trigger double jeopardy protection. Denial of continuance within statutory period of Penal Code section 1382 for failing to show good cause was error. See Malengo v. Municipal Court (1961) 56 Cal.2d 813.

Voting rights - Arizona registration requirements

Gonzalez v. Arizona (9th Cir. 10/26/10, 08-17094) F.3d

Arizona Prop. 200's documentary proof of citizenship requirement conflicts with federal law. The requirement that the voter submit photo proof of identification at the polling place is valid. Opinion by Ikuta, concurrence by Sandra Day O'Connor, dissent by Kozinski.

Witnesses - self-incrimination

Earp v. Cullen (08-99005, 9th Cir., 10/19/10) F.3d

Petitioner was denied right to full and fair opportunity to prove claim of prosecutorial misconduct when court accepted witness' anticipatory Fifth Amendment invocation, made on the basis of possible perjury prosecution for present testimony.

-----------------------------
Grace Suarez
grace.suarez@gmail.com

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Reasonable Doubts - Sept. 21, 2010

Tue, 21 Sep 2010 12:03:20 -0700

Fines and fees - $30 Government Code section 70373 facilities fee

People v. Lopez (E048655, Fourth Dist., 9/15/10) Cal.App.4th

Government Code section 70373 facilities fee could be imposed even though crime committed before statute's enactment, but conviction occurred after. Court orders abstract of judgment corrected to show court ordered three $30 assessments, one for each count.

Gangs - crime committed by gang member acting alone does not support PC 186.22(a) conviction

People v. Rodriguez (C060227, Third Dist., 9/20/10) Cal.App.4th

Penal Code section 186.22, subdivision (a) (substantive criminal street gang offense) does not apply to attempted robbery by member of criminal street gang acting alone and not indicating in any way that crime was gang-related. Interprets "that gang" to mean the gang in which member is active participant. Disagrees with People v. Salcido (2007) 149 Cal.App.4th 356 and People v. Sanchez (2009) 179 Cal.App.4th 1297 and follows People v. Castenada (2000) 23 Cal.4th 743. Distinguishes subdivision (a) from (b) in that (b) covers intending generally to aid the gang in its primary activities.

Theft - from elderly person by caregiver

People v. Fenderson (A123984, First Dist., 9/17/10) Cal.App.4th

Evidence sufficient to support theft and burglary claims arising from emptying of elderly woman's bank accounts by caregiver after latter's death. Defense was that woman had given caregiver proceeds of sale of her home (over $300,000). Victim had given caregiver a power of attorney, and owner of assisted living facility overheard victim tell caregiver she wanted her to have contents of bank account, but did not know what account victim was referring to. Held, money in account passed to victim's estate upon her death, and therefore caregiver embezzled from the estate. Even though jury was instructed on theft by larceny, since evidence was sufficient to prove embezzlement, conviction may be sustained on that ground. Agrees with People v. North (1982) 131 Cal.App.3d 112, 117--118. Trial court did not err in refusing claim-of-right defense instruction, since that defense requires lack of concealment, and here defendant concealed the money from the executor.

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Reasonable Doubts - September 15, 2010

Wed, 15 Sep 2010 13:24:35 -0700

Discovery - post-trial discovery in death penalty or LWOP cases

Baca v. Superior Court (C062609, Third Dist., 8/31/10) Cal.App.4th

Discovery under Penal Code section 1054.9 may be denied on ground that it is sought to support a third habeas petition, and therefore is not "upon the prosecution of a postconviction writ of habeas corpus."

Discovery - Penal Code section 1054.9 postconviction discovery

Barnett v. Superior Court (S165522, 8/26/10) Cal.4th

"(1) Because section 1054.9 provides only for specific discovery and not the proverbial "fishing expedition" for anything that might exist, defendants seeking discovery beyond recovering what the prosecution had provided to the defense before trial must show a reasonable basis to believe that specific requested materials actually exist. But they do not additionally have to show that they are material within the meaning of Brady v. Maryland (1963) 373 U.S. 83 (Brady) and its progeny.

(2) Section 1054.9 does not govern materials in the possession of out-of-state law enforcement agencies that merely provided the prosecution with information or assistance under the circumstances of this case."

Double jeopardy - acquittal on some counts

Brown v. Superior Court (B221980, Second Dist., 8/31/10) Cal.App.4th

Double jeopardy bars retrial because, (1) in the case of one victim, the jury acquitted petitioner of offenses, all of which were alleged to have been committed within the same five-month interval, and the prosecutor failed to show that none of the acquittals pertained to the offense the court agreed to permit the prosecutor to retry, which was also alleged to have been committed in the same five-month interval; and (2) in the case of the other victim, the jury acquitted petitioner of continuous sexual abuse of a minor based upon the same conduct and during the same 22-month interval alleged in four counts the court agreed to permit the prosecutor to retry.

Escape - insufficient evidence

People v. Bailey (H034382, Sixth Dist., 8/26/10) Cal.App.4th

Evidence insufficient to show escape from prison under Penal Code section 4530 because although defendant broke out of his cell and breached a number of interior barriers, he remained within the boundaries of the facility. There was evidence of attempted escape, but trial court did not instruct the jury on attempt.

Fines and fees - no showing of ability to pay

People v. Pacheco (H034454, Sixth Dist., 8/31/10) Cal.App.4th

Attorney fees, criminal justice administration fee and probation costs improperly imposed, as no finding of ability to pay made. Fees should not have been imposed as conditions of probation, either.

Habeas corpus - death penalty - "shell" petition seeking extension of time

In re Morgan (S162413, 8/30/10) Cal.4th ; In re Jimenez (S167100, 8/30/10) Cal.4th

"Cursory" one-claim habeas petition, without supporting exhibits, asking court to defer decision until habeas counsel had adequate opportunity to investigate claims to be raised in an amended petition is granted when defendant had to wait 8 1/2 years for counsel's appointment, after invoking his statutory right to the court's appointment of habeas counsel pursuant to Government Code section 68662. Corrigan dissents from approval of "shell" petitions: "It is our obligation to find qualified counsel for capital habeas cases. We should seriously consider how we are discharging that obligation in light of the delays the majority describes. It is not, however, our proper role to help one class of convicted inmates evade a federal statute of limitations."

Probation - condition that defendant not re-enter country illegally

People v. Laufasa (A127159, First Dist., 9/9/10) Cal.App.4th

Trial court had authority to order probationer to not re-enter country illegally if he was ever deported. Even though power to regulate immigration is exclusively federal (De Canas v. Bica (1976) 424 U.S. 351, 354) not every state activity affecting aliens is preempted. (In re Adolfo M. (1990) 225 Cal.App.3d 1225, 1232.) See also People v. Campos (1988) 198 Cal.App.3d 917, 921 (illegally entering U.S. after deportation also violates implicit condition that defendant obey all laws).

Probation - extension of probationary period

People v. Minor (C057609, Third Dist., 9/8/10) Cal.App.4th

Probationer was given adequate notice by probation officer's request for extension of probationary period contained in a progress report to the court. Probation may be extended without a finding of an actual violation (here defendant had not made enough progress). See People v. Cookson (1991) 54 Cal.3d 1091, 1100.

Sentencing - juvenile - 84 to life is cruel and unusual

People v. Mendez (B217683, Second Dist., 9/1/10) Cal.App.4th

Eighty-four year to life sentence imposed on juvenile who did not commit homicide or inflict great bodily injury, and which makes him ineligible for parole until well beyond life expectancy violates cruel/unusual punishment prohibition.

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Reasonable Doubts - Aug 12, 2010

Thu, 12 Aug 2010 15:08:35 -0700

Chain of custody - blood sample

People v. Hall (B215310, 2d Dist, 8/9/10) Cal.App.4th

Defendant did not forfeit right to argue chain of custody by failing to renew objection. "Once an objection has been fully considered and overruled, it is not necessary to repetitiously renew the objection in the same trial to preserve the issue on appeal." Distinguishes People v. Holloway (2004) 33 Cal.4th 96 and People v. Morris (1991) 53 Cal.3d 152 (overruled on other grounds in People v. Stansbury (1995) 9 Cal.4th 824, 830, fn. 1 because there the objection was made in a pretrial or in limine context and counsel failed to renew it at trial. However, the chain of custody was adequate, because, taking all the circumstances into account, including ease or difficulty in altering the evidence, it was reasonably certain there was no alteration. Defendant failed to show there was any tampering, and defendant had admitted he was "tanked."

Death penalty - issues

People v. Brady (S078404, S.Ct., 8/9/10) Cal.4th

Conviction for degree murder of police officer and death sentence affirmed over claims of error re: 1) trial court's exclusion of certain evidence including third party culpability and possible bias in key witness's testimony; 2) sufficiency of evidence to support first degree murder verdict; 3) alleged Griffin error; 4) jury instruction on consciousness of guilt; 5) admission of victim impact evidence; 6) prosecutorial misconduct during closing; 7) jury instruction on juror's refusal to deliberate; 8) denial of modification of death verdict; 9) arbitrary imposition of the death penalty; 10) delay in appointment of appellate counsel; 11) execution following lengthy confinement; and 12) constitutional challenges to California's death penalty statute.

Drugs - marijuana transportation and related offenses

People v. Busch (C061186, 3d Dist, 8/4/10) Cal.App.4th

No requirement that defendant knew he was transporting more than 28.5 grams of marijuana. Knowledge requirement means just knowledge of narcotic character, not of quantity. Possession of marijuana not lesser included, as one can transport without possessing, as aider and abettor. Evidence sufficient, as defendant exercised joint dominion and control.

Jury selection - no Wheeler/Batson error

People v. Cox (B207285, 2d Dist, 8/1/10) Cal.App.4th

No constitutional error in jury selection as trial court made "a sincere and reasoned effort to evaluate the nondiscriminatory justifications provided by the deputy district attorney" to explain nine peremptory challenges against African-American jurors.

New trial - denial of motion

People v. Hall (B215310, 2d Dist, 8/9/10) Cal.App.4th

Reviewing court should consider these factors to determine if new trial should be granted: 1) That the evidence, and not merely its materiality, be newly discovered; 2) that the evidence be not cumulative merely; 3) that it be such as to render a different result probable on a retrial of the case; 4) that the party could not with reasonable diligence have discovered and produced it at the trial; and 5) that these facts be shown by the best evidence of which the case admits. (People v. Delgado (1993) 5 Cal.4th 312, 328.) In addition, the newly discovered evidence must contradict the strongest evidence against the defendant. (Delgado, supra, 5 Cal.4th at p. 329.) Here, the new evidence only served to contradict an expert's testimony.

Restitution - repair costs higher than replacement

People v. Stanley (C063661, 3d Dist, 8/3/10) Cal.App.4th

Court may award cost of repairing vehicle damaged by defendant, even if repair cost exceeds replacement value of vehicle. Agrees with In re Dina V. (2007) 151 Cal.App.4th 486 and disagrees with People v. Yanez (1995) 38 Cal.App.4th 1622.

Restitution - no clear statement of calculation method

People v. Jones (C063113, 3d Dist, 8/11/10) Cal.App.4th

El Dorado County Judge Douglas Phimister failed to make a clear statement of the calculation method used to reach $4,468.40 figure for damage to camper involved in hit and run (defendant pleaded guilty to drunk driving, hit and run was dismissed with Harvey waiver). (See People v. Giordano (2007) 42 Cal.4th 644, 664.) Court remands for a new hearing and asks trial court to also consider proximate causation in deciding whether to award restitution for damage to victim's bumper, caused when she was parking to make a court appearance.

Sex registration - Eighth Amendment challenge

In re Coley (B224400, 2d Dist, 8/4/10) Cal.App.4th

Twenty-five years to life sentence for violating Penal Code section 290(a)(1)(D) (failure to register as sex offender yearly within 5 days of birthday) with two strikes does not violate Eighth Amendment. Disagrees with People v. Carmony (2005) 127 Cal.App.4th 1066. Note that Cal. Supreme Court sent the case back with orders to consider the decision in light of Carmony. Court goes to great lengths to describe the prior offenses.

Shooting at occupied vehicle - body outside vehicle but hand inside

People v. Jones (D055087, 4th Dist, 8/9/10) Cal.App.4th

Jury properly instructed that defendant could be convicted of shooting at an occupied vehicle if she was standing outside the vehicle, and reached in through the window to fire the gun. Case of first impression in interpreting word "at" in Penal Code section 246.

-----------------------------
Grace Suarez
grace.suarez@gmail.com

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Reasonable Doubts - Aug 3, 2010

Tue, 03 Aug 2010 14:26:23 -0700

Death penalty - Various issues

People v. Verdugo (S083904, 8/2/10) Cal.4th

Denial of second (Keenan) counsel proper when first counsel's declaration insufficient as it contained nothing more than a bare assertion that counsel's services were required. No Brady violation where DA's notes of witness interview were not exculpatory. Any statutory violation was harmless as court granted defendant additional time to review notes or recall witnesses. Information re witness relocation not "apparent" Brady error, and no prejudice shown. Other discovery violations either not Brady error or harmless. Evidence that investigating officers had been exonerated of charges that they fabricated evidence in another case properly excluded under Evidence Code section 352 (marginally relevant and unduly consumptive of time). Insufficient evidence to support lesser manslaughter instruction. Failure to give pinpoint instruction on voluntary intoxication forfeited by lack of request, and it was inconsistent with other defenses. Penalty phase issues: victim impact, scope of cross-examination, timing of defense closing, instructions, challenges to California death penalty scheme. Moreno concurs in judgment, but disagrees re introduction of music tape which victim had given to her father as victim impact evidence.

Death penalty - Various issues

People v. Letner & Tobin (S015384, CA S.Ct., 7/29/10) Cal.4th

Claims considered and rejected: failure to set aside burglary charges and burglary special circumstance; failure of information to charge first degree felony murder; denial of motions to sever defendants' trials; leg braces during voir dire (no evidence they could be seen by jurors, and defendant had gotten into fight); various evidentiary rulings; sufficiency of evidence; prosecutorial misconduct; instructional error; sufficiency of appellate record; cross-examination of one of the defendants re letters; admission of unadjudicated priors; 12) constitutionality of California's death penalty; cumulative effect of alleged errors.

Juveniles - probation condition unreasonable

In re D.G. (A126655, 1st Dist, 7/30/10) Cal.App.4th

Alameda County Superior Court Judge Dennis Hayashi abused his discretion in prohibiting minor from being within 150 feet of a school where burglary had nothing to do with a school. "We conclude the condition as drawn was unreasonable because it is not related to appellant's offenses and does not prohibit otherwise criminal conduct and because there is no evidence in the record to suggest the condition will serve a rehabilitative purpose by preventing his future criminality. We narrow the condition consistent with state law that prohibits persons from visiting school grounds without notifying school authorities and affirm the court's dispositional order as so modified."

Juveniles - San Diego curfew ordinance

In re A.G. (D053991, 4th Dist, 2/4/10) Cal.App.4th

Welfare & Institutions Code section 625.5 not intended to superimpose prior warning requirement before county ordinance may treat curfew violation as misdemeanor. It was intended solely to relieve counties from the costs of prosecuting such cases, by making parents liable. Using intermediate-scrutiny test, court concludes that county's failure to provide that minors may travel to and from protected activities renders ordinance unconstitutional, as it sweeps too broadly and includes within its ambit innocent and legal conduct. Note: this is second time San Diego has seen its curfew ordinance tossed out, and it still does not know how to draft a proper law.

Parole - appellate court may not limit evidence before parole board

In re Prather (S172903, CA S.Ct., 7/29/10) Cal.4th

Decision granting habeas corpus relief on grounds denial of parole not supported by "some evidence" should direct the Board to conduct a new hearing in accordance with due process and consistent with court's decision, but should not place improper limitations on the type of evidence the Board may consider.

Public officials - embezzlement, bribery, conflict of interest, perjury

People v. Wong (B212580, 2d Dist, 7/28/10) Cal.App.4th

You know things will not go well for the defendant when the opinion starts "The story of Leland Wong (Wong) is one of graft and hubris. Wrongly believing he could get away with lying, cheating and stealing, he ended up convicted of multiple crimes, including embezzling money (Pen. Code, sec. 487, subd. (a)) accepting a bribe (sec 68); acting with a conflict of interest (Gov. Code, sec 1090); and committing perjury (sec 118)." The court then answers the question, "Is it legal for a commissioner in one city department to take money from a third party to influence contract negotiations with a different department in the same city? The answer is no." Some of Wong's acts included charging massages to Kaiser while working as director of community relations, for which he was fired. Nevertheless, he was appointed to the LA World Airports commission by LA Mayor James Hahn, and took money from corporations, thus creating a conflict of interest. He then failed to disclose the payments in a form signed under penalty of perjury. Appellate court affirms the judgment in its entirety.

Restitution - by defendant to own insurance company

People v. Busser (D055088, 4th Dist, 7/20/10) Cal.App.4th

San Diego County Superior Court Judge Randa Trapp erred in ordering that defendant pay restitution to his own insurance company following conviction for hit and run and presenting false statement where, under rule of People v. Crow (1993) 6 Cal.4th 952, 962, repair costs insurance company would have been obligated to pay even if defendant had not presented a false claim statement are not losses resulting from the criminal offense under Penal Code section 1202.4 because they are not attributable to defendant's criminal misrepresentation.

Sex offenses - registration

People v. Alvarado (E049321, 4th Dist, 7/30/10) Cal.App.4th

Order requiring sex offender registration following conviction for attempted lewd act on child under 14 does not violate equal protection, distinguishing People v. Hofsheier (2006) 37 Cal.4th 1185 (registration for oral cop with girl under 18 violates equal protection, as sex with same minor would not require registration). Fines and fees improperly imposed as probation conditions.

-----------------------------
Grace Suarez
grace.suarez@gmail.com

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Reasonable Doubts - July 14, 2010

Wed, 14 Jul 2010 15:52:03 -0700

Counsel - ineffective assistance - reversing trial court's finding

People v. Jones (A126005, 1st Dist, 6/30/10) Cal.App.4th

Court of Appeal first reversed due to Lake County Judge Arthur Mann's error in refusing to hear motion alleging ineffective assistance affecting a suppression motion, and remanded with order to conduct hearing. Court held hearing and found no ineffective assistance. Court of Appeal reversed again. The court was quite critical of the judge's reasoning, finding it "triply flawed." The majority expressed concern with "the trial court minimization of the significance of the inadequate investigatory assistance." The majority warns that "the right of indigent defendants to receive the assistance of counsel that is constitutionally required may well depend on the attentiveness of judicial officers to this issue." It also warned that the problem may involve many other defendants in Lake County. Matter remanded for a hearing before a different judge.

Ed. Note: major woodshedding.

Counsel - ineffective assistance - remand to Georgia Supremem Court

Sears v. Upton (09-8854, 6/29/10) U.S.

In per curiam decision, Supreme Court remands ineffective assistance of counsel case back to Georgia high court, finding that court used wrong standard to determine that counsel had not rendered ineffective assistance: "it is plain from the face of the state court's opinion that it failed to apply the correct prejudice inquiry we have established for evaluating Sears' Sixth Amendment claim." Scalia and Thomas dissent. Quelle surprise.

Death penalty - Issues

People v. Hartsch (S074804, 6/28/10) Cal.4th

Issues: Wheeler motion; recording of conversation with co-defendant; excluded testimony; jury instructions; aggravating evidence in penalty phase; victim impact evidence; lingering doubt; denial of modification motion; challenges to death penalty law.

Death penalty - issues presented and rejected

People v. Tate (S031641, 7/8/10) Cal.4th

Issues: restrictions on voir dire; excusal of jurors for cause; admission of statements; alleged prosecutorial misconduct (making faces, among other things); jury instructions; challenges to California death penalty law.

Death penalty - Issues

People v. Williams (S029490, 6/28/10) Cal.4th

Issues: admissibility of defendant's statements; accomplice instructions; prosecutorial misconduct (use of Biblical references) which "strayed beyond the bounds of permissible argument based upon religion (but harmless);" instruction on commutation power; challenges to death penalty law.

Death penalty - Issues

People v. Lomax (S057321, 7/1/10) Cal.4th

Counsel could waive time over defendant's objection when it was in order to prepare the case, and any denial of statutory time right required showing of prejudice on appeal. Court's order that defendant wear stun belt was appropriate exercise of discretion, given prior assault on bailiff. Detention for traffic violation was supported by probable cause. Dismissal of two jurors based on answers was proper. No Batson/Wheeler error. Defense counsel properly prevented from asking questions that lacked a good faith basis and invited juror speculation. Constitutional challenges rejected.

Fees - $30 Government Code section 70373 assessment

People v. Phillips (F058534, 5th Dist, 7/2/10) Cal.App.4th

Date of conviction, not arrest, governs whether Government Code section 70373 assessment may be imposed. Agrees with People v. Castillo (2010) 182 Cal.App.4th 1410.

Habeas corpus - state - conviction and death penalty affirmed

In re Valdez (S107508, 7/8/10) Cal.4th

Petitioner failed to establish ineffective assistance of counsel. Counsel's decision not to introduce evidence that blood on defendant's pants was not the victim's was tactical because DA might have then tested for blood on the gun, and since defendant had confessed to counsel, counsel had every reason to believe the testing would prove the victim's blood was on the gun. Same conclusion on counsel's decision not to introduce evidence of third-party culpability. Petitioner also failed to show counsel did not adequately investigate and present mitigation evidence.

Impoundment - of car driven on revoked or suspended license

Alviso v. Sonoma County Sheriff's Dept (A126241, 1st Dist, 6/30/10) Cal.App.4th

Vehicle Code section 14602.6 does not violate equal protection, due process or Fourth Amendment. Owner has right to speedy administrative hearing. Agrees with Conner v. City of Santa Ana (9th Cir. 1990) 897 F.2d 1487 (no requirement of judicial tribunal).

Infraction - trial conducted in defendant's absence

People v. Disandro (E049726, 4th Dist, 7/7/10) Cal.App.4th

Traffic court failed to make findings that defendant was knowingly and voluntarily absent at start of trial on speeding charge, so it was not authorized under Vehicle Code section 40512.5 and/or Penal Code section 1043(e) to proceed with the trial. Error harmless under People v. Watson (1956) 46 Cal.2d 818, as defendant did not show result would have been different had she been present.

Misconduct - governmental - sanctions adequate

United States v. Struckman (08-30312, 9th Cir, 6/29/10) F.3d

Suppression of a "great deal of evidence" was sufficient sanction for governmental misconduct regarding investigation of defendant. Ruling is a massive indictment of the actions of the IRS agents, and wonders why they have not been investigated.

Sentencing - weapons and gangs

People v. Mesa (D056280, 4th Dist, 7/13/10) Cal.App.4th

Penal Code section 1170.1(f) and (g) prevent trial court from imposing gang enhancement along with firearm and GBI enhancements. Penal Code section 654 also prevents consecutive sentencing on firearm possessions as evidence showed defendant had continuous possession of one firearm. But defendant properly sentenced consecutively for criminal street gang statute violation since it punishes conduct and intentions separate from those giving rise to assault convictions.

See also People v. Spirlin (2000) 81 Cal.App.4th 119, 130; People v. Sanchez (2009) 179 Cal.App.4th 1297, 1310-1313; People v. Herrera (1999) 70 Cal.App.4th 1456.

Sex offender registration - predicate offense dismissed after PC 290 conviction

In re Watford (C062550, 3d Dist, 7/9/10) Cal.App.4th

Fact that predicate offense in Massachusetts was dismissed after defendant found guilty of failing to register in California does not require that Penal Code section 290 conviction be vacated. See Lewis v. United States (1980) 445 U.S. 55 (felon in possession of firearm conviction upheld even when underlying felony subject to collateral attack).

Weapons - Second Amendment right

McDonald v. City of Chicago (08-1521, 6/28/10) U.S.

Court extends Second Amendment ruling in District of Columbia v. Heller (2008) 554 U.S. ___ to the states.

Witnesses - unavailability due to deportation

People v. Herrera (S171895, 7/1/10) Cal.4th

Trial court did not err by allowing deported witness' preliminary hearing testimony to be read to jury after DA showed that witness had been deported to El Salvador and that country had no treaty providing for extradition to testify as witness.

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Reasonable Doubts - June 16, 2010

Wed, 16 Jun 2010 10:13:35 -0700

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.

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Reasonable Doubts - May 9, 2010

Wed, 09 Jun 2010 15:09:50 -0700

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).

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Reasonable Doubts - May 4, 2010

Tue, 04 May 2010 13:51:59 -0700

Abuse - dependent adult

People v. Delgado (B213271, 2d Dist, 4/29/10) Cal.App.4th

No error in refusing unanimity instruction where dependent abuse consisted of several incidents that were charged in one count as continuous conduct.

Child molestation - instruction and sufficiency

People v. Tepetitla-Cruz (E046846, 4th Dist, 4/22/10) Cal.App.4th

Disagreeing with People v. Cicero (1984) 157 Cal.App.3d 465, court holds that consent is not a defense to forcible lewd act committed by force. Minor error in giving lesser-included instructions harmless error.

Counsel - concession of guilt - referring to defendant as suspect is not

People v. Redd (S059531, S.Ct., 4/29/10) Cal.4th

Defense counsel's reference in opening statement to presence of "Mr. Redd" in front of market where robbery took place was not a concession that defendant was the individual involved in that incident. Doubtful that reasonable juror would have considered it a concession, and in any event, evidence was overwhelming.

Credits - retroactive application of Penal Code section 4019

People v. Delgado (B213271, 2d Dist, 4/29/10) Cal.App.4th

Defendant entitled to retroactive application of Penal Code section 4019 increased conduct credits. Disagrees with People v. Rodriguez (2010) 182 Cal.App.4th 535, 540 (Fifth) and agrees with People v. House (2010) 2010 WL 1408922 (First Dist., Div. One), People v. Landon (2010) 2010 WL 1444011 (First Dist., Div. 2), and People v. Brown (2010) 2010 WL 924421 (Third Dist.).

Death penalty - the usual result

People v. Redd (S059531, S.Ct., 4/29/10) Cal.4th

Issues considered and rejected: admission of victim-impact evidence; prosecutorial misconduct; cross-examination of defense experts; rejection of instructions; general challenges to California death penalty scheme.

Drunk driving - no Pitchess at DMV hearing

Brown v. Valverde (A121575, 1st Dist, 4/23/10) Cal.App.4th

In Department of Motor Vehicles (DMV) administrative per se hearing, driver facing license suspension following arrest for driving under the influence may not seek discovery of confidential peace officer personnel records pursuant to Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess) and its statutory codifications.

Fraud - possession of fictitious check

People v. Mathers (C060425, 3d Dist, 4/22/10) Cal.App.4th

Conviction for passing or possessing fictitious check under Penal Code section 476 reversed, as checks possessed by defendant were not fictitious. Checks were drawn on existing bank, signed by defendant, and defendant had an account at the bank, but it was closed.

Identification - Evidence Code section 1238 procedure

People v. Redd (S059531, S.Ct., 4/29/10) Cal.4th

Testimony regarding out of court identification did not violate Penal Code section 1238. Hearsay admissible under Sixth Amendment and Crawford v. California because witness available for cross-examination.

Juveniles - restitution for medical expenses

In re Eric S. (A125758, 1st Dist, 4/23/10) Cal.App.4th

People v. Duong (2010) 180 Cal.App.4th 1533, which held victim restitution ordered against adult offenders under Penal Code section 1202.4 may include amounts billed for medical services provided by a health HMO, even when victim is HMO member not required to pay for those medical services is proper, applies to juvenile offenders. Amount reduced to amount of HMO lien rather than full cost of services.

Lesser includeds - not shown by evidence

People v. Redd (S059531, S.Ct., 4/29/10) Cal.4th

Defendant not entitled to lesser includeds of second degree murder or voluntary manslaughter, as they were not shown by the evidence, even though the prosecutor requested them "to protect the record."

Lineups - untimely request

People v. Redd (S059531, S.Ct., 4/29/10) Cal.4th

Denial of lineup motion made a year after first appearance not abuse of discretion. Evans v. Superior Court (1974) 11 Cal.3d 617 does not require a finding of dilatory tactics. Mere delay is enough.

Misconduct - prosecutorial - comments by DA were not

People v. Redd (S059531, S.Ct., 4/29/10) Cal.4th

Comments about discrepancy between defense counsel's statements and evidence was not denigration of counsel, nor were other comments. Expressed confusion about nature of defense did not shift burden of proof. Saying a witness was a "nice young man who did something very important ... [and] deserves our thanks" did not constitute vouching because they were based upon facts established by the testimony and did not refer to outside evidence. Asking jurors to examine the gun was request to consider evidence presented, not to produce new evidence. Telling jurors that he was afraid "you people will not get it" was not appealing to jurors' passion. Failure to object not excused by futility.

Restitution - IRS penalties and interest

People v. Williams (E048899, 4th Dist, 4/28/10) Cal.App.4th

Error to deny victim restitution for fines and penalties assessed against vic by IRS due to defendant's failure to pay payroll taxes (he embezzled the money).

Search & seizure - arrest by federal officer on "adjancent" state land

People v. Redd (S059531, S.Ct., 4/29/10) Cal.4th

Court interprets Penal Code section 830.8(b) to permit federal officer to detain defendant who was on county-owned property. "... [T]erm 'adjacent' was not intended to restrict the area within which duly authorized federal employees act as peace officers to locations on nonfederal property that are within 'striking' distance of federal property." Term "adjacent" is not vague, distinguishing Kolender v. Lawson (1983) 461 U.S. 352 because "the alleged vagueness is unrelated to the definition of any crime."

Threats - sufficiency of evidence

People v. Delgado (B213271, 2d Dist, 4/29/10) Cal.App.4th

Penal Code section 422 (criminal threat) supported by statement, "Tell them I am going to find out where they live and I am going to come out and get them."

Venue - homicides in two counties

People v. Davis (A125490, 1st Dist, 4/30/10) Cal.App.4th

Penal Code section 790(b), which allows two or more murders committed in different counties to be tried together as longs as they were connected together in their commission, is not limited to serial killers, and thus mother could be prosecuted in one county for killings of her children in that county and another.

Victim-impact evidence - at guilt phase - not

People v. Redd (S059531, S.Ct., 4/29/10) Cal.4th

Asking witness about lasting health problems from shooting did not improperly introduce victim-impact evidence into guilt phase. It was relevant to GBI allegation. Testimony regarding seeing a psychiatrist was inadmissible but harmless.

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Reasonable Doubts - April 14, 2010

Wed, 14 Apr 2010 11:22:17 -0700

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

Tue, 13 Apr 2010 11:25:59 -0700

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."

-----------------------------
Grace Suarez

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Another shot of my Bento legal library

Fri, 09 Apr 2010 12:40:14 -0700

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

Fri, 09 Apr 2010 12:20:46 -0700

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

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Lunch with iPad

Thu, 08 Apr 2010 13:10:55 -0700

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

Thu, 08 Apr 2010 12:19:00 -0700

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

Wed, 07 Apr 2010 20:31:47 -0700

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.

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