ElectricLawyer

August 8, 2008 Reasonable Doubts

Grace Suarez — Fri, 08 Aug 2008 09:28:55 -0700

COUNSEL - INEFFECTIVE ASSISTANCE - FAILURE TO ATTACK CONFESSION
Moore v. Czerniak (9th Cir. 7/28/08, 04-15713) 08 C.D.O.S. 9768
"Counsel’s explanation for not filing the motion was, in his words,
“two-fold.” First, he thought such a motion would not have succeeded
because Moore was not in custody when he gave his confession and his
confession was voluntary — both clearly erroneous conclusions: the
confession was impermissibly extracted as the result of a promise of
leniency made by the interrogating officers, and it was also obtained
in violation of Edwards v. Arizona, 451 U.S. 477 (1981), as Moore had
asked for counsel before making the confession but his request had
been ignored. Second, Moore’s lawyer erroneously thought that the
taped confession was not prejudicial because Moore had told his
brother and his half-brother’s girlfriend about the crime. In both
respects, Moore’s lawyer exhibited a remarkable lack of familiarity
with, or basic misunderstanding of, controlling principles of
constitutional law. As a result of his ineptitude — and, as his
affidavit makes crystal clear, not because of any strategic reasons —
he failed to make a motion to suppress the unconstitutionally obtained
confession. Having determined not to file the motion, counsel advised
Moore that a plea to felony murder was “the best [they] could do under
the circumstances,” and Moore pled no contest to that charge."
Ouch.

MISCONDUCT - PROSECUTORIAL - USE OF DEFENDANT'S PSYCH REPORT TO CROSS-
EXAMINE DEFENSE WITNESSES
People v. Loker (Ca. Sup. Ct., 7/28/08, S045060) 08 C.D.O.S. 9659
Trial court permitted prosecutor to use a psych report from a past
conviction, "an approach that drew the jury’s attention to aspects of
defendant’s personal history that were never testified to. This
inevitably invited the jury to speculate about matters that were not
in evidence, although under the circumstances of this case, we
conclude the impropriety was not prejudicial."
Ed. Note: death penalty case.

HOMICIDE - SECOND BEATING NOT SUPERSEDING INTERVENING CAUSE
People v. Fiu (C.A. 1st, 7/28/08, A112738) 08 C.D.O.S. 9810
No error in failing to instruct sua sponte on supervening cause. “To
relieve a defendant of criminal liability, an intervening cause must
be an unforeseeable and extraordinary occurrence. [Citation.] The
defendant remains criminally liable if either the possible consequence
might reasonably have been contemplated or the defendant should have
foreseen the possibility of harm of the kind that could result from
his act.” (People v. Crew (2003) 31 Cal.4th 822, 848.) Here there was
no superseding intervening act in the beating inflicted by a later-
arriving gang member, after defendant and fellow gang members had
badly beaten the victim. Whether or not the later arrival was
foreseeable, the death of the victim due to the beating was. Defendant
stayed with the other gang members nearby. That one of them would
continue beating the victim was foreseeable.

PRIORS - JUVENILE PRIOR USED AS STRIKE
People v. Del Rio (C.A. 2nd, 7/28/08, B203270) 08 C.D.O.S. 9825
Disagreeing with People v. Nguyen (2007) 152 Cal.App.4th 1205, review
granted Oct. 10, 2007, S154847), Second District holds juvenile prior
can be used to enhance sentence under Three Strikes. "Pending a
contrary decision by the California Supreme Court on this issue, we
conclude, as we held in People v. Smith (2003) 110 Cal.App.4th 1072,
1075, “a juvenile adjudication may be used as a strike to enhance an
adult offender’s sentence notwithstanding the absence of the right to
a jury trial in delinquency proceedings.” (See also People v. Buchanan
(2006) 143 Cal.App.4th 139, 149; People v. Superior Court (Andrades)
(2003) 113 Cal.App.4th 817, 830–834; People v. Lee (2003) 111 Cal.App.
4th 1310, 1312–1316; People v. Bowden (2002) 102 Cal.App.4th 387, 391–
394; People v. Fowler (1999) 72 Cal.App.4th 581, 584–587.)"

WITNESSES - TESTIFYING CO-DEFENDANT'S PLEA AGREEMENT NO DENIAL OF DUE
PROCESS
People v. Reyes (C.A. 2nd, 7/28/08, B186285) 08 C.D.O.S. 9827
Plea agreement of co-defendant who testified against defendant, which
provided that he would testify truthfully and completely as to
victim's death, and that his prior statement made to police was true,
was not coercive of that testimony and did not deny due process or
fair trial. Distinguishes People v. Allen (1986) 42 Cal.3d 122, which
held that a plea agreement which requires the witness to testify
consistently to earlier statement is tainted, because here the second
condition was not tied to the first. (See People v. Garrison (1989) 47
Cal.3d 746 [“[U]nless the bargain is expressly contingent on the
witness sticking to a particular version, the principles of Medina
[citation] and [citation] are not violated"].)

BURGLARY - INTENT TO STEAL SHOWN BY ADMISSION OF THEFT
In re Matthew A. (C.A. 2nd, 7/30/08, B200559) 08 C.D.O.S. 9917
In order to constitute burglary, defendant must intend to commit
theft or felony at time of entry. (People v. Holt (1997) 15 Cal.4th
619, 699.) However, existence of requisite intent is rarely shown by
direct proof, but may be inferred from facts and circumstances.
(Ibid.) Evidence of theft of property following entry may create a
reasonable inference that the intent to steal existed at the moment of
entry. (In re Leanna W. (2004) 120 Cal.App.4th 735, 741.) Here, 12-
year-old admitted he took items, and thefts created reasonable
inference that he entered with intent to steal. That he may have also
intended to make a mess (which he did) does not negate the theft intent.

JUVENILES - SPECIFYING TERM WHEN MINOR IS NOT REMOVED FROM PARENTS'
CUSTODY
In re Matthew A. (C.A. 2nd, 7/30/08, B200559) 08 C.D.O.S. 9917
"Appellant was not removed from his mother’s physical custody. This
means that the necessary predicate for specifying a term of
imprisonment does not exist. The sentencing authority of a court in
almost all instances is prescribed by statutory law, as it is in this
case. The statute did not empower the court to specify a term of
imprisonment and that should have been the end of the matter. Yet, as
others courts have done, this court nonetheless specified a term,
namely the maximum term. Courts utilizing this technique may have the
best of reasons, such as “sending a message” to the juvenile that the
transgression was serious. But, if the Legislature thought that this
should be done, it would have been easy to write the statute to permit
this practice. We think it should cease. The criticism of this
practice in prior opinions without actually ordering a correction of
the disposition seems to have had little effect. Thus, our order is to
strike the specification of a term of imprisonment."

CONTINUANCES - CO-DEFENDANT'S COUNSEL IN ANOTHER TRIAL
People v. Sutton (C.A. 2nd, 7/30/08, B195337) 08 C.D.O.S. 9919
Co-defendant's appointed counsel’s present engagement in another
matter is good cause to continue the joint trial of jointly charged
defendants past Penal Code section 1382 time. Distinguishes People v.
Johnson (1980) 26 Cal.3d 557, because in Johnson "defendant’s trial
counsel delayed Johnson’s first trial date because counsel was engaged
in trial on another matter and because he felt his other cases had
precedence over Johnson’s. On all later trial dates Johnson’s trial
counsel based his requests for continuance only on conflicting trial
schedules of his other clients. He was thus engaging in case
management, to Johnson’s detriment. Here, Jackson’s trial counsel,
before the statutory deadline passed, initially announced ready for
trial, although he said he might be engaged in trial on another case.
He thereafter became engaged in that other trial. While Jackson’s
counsel was engaged in the other matter, Sutton and Jackson’s trial
trailed day to day, until their case was transferred for trial on
September 25, six days after the 60-day deadline in section 1382. A
situation such as this, in which trial counsel is presently engaged in
another matter and the matter before the court trails for a minimal
number of days, is thus distinguishable from Johnson. Trial counsel
here was actually in trial on another matter and was not delaying this
matter so that he could try other cases ahead of it." Court also
distinguishes Sanchez v. Superior Court (1982) 131 Cal.App.3d 884 and
Arroyo v. Superior Court (2004) 119 Cal.App.4th 460. Court also notes
the delay was brief (6 days).
Ed. Note: Hmmm. I don't see a difference here.

DRUGS - MEDICAL MARIJUANA - COMPASSIONATE USE DEFENSE
People v. Windus (C.A. 2nd, 7/30/08, B196483) 08 C.D.O.S. 9924
Los Angeles County Superior Court Judge Andrew C. Kauffman erred in
denying defendant opportunity to present Compassionate Use defense.
"In order to present a CUA defense to the jury, a defendant must have
obtained a recommendation to use medical marijuana prior to his or her
arrest. However, that recommendation need not specify an approved
dosage or amount of marijuana that may be possessed. A doctor’s
opinion that the amount in the defendant’s possession meets his or her
personal medical needs may be proffered at trial." But court correctly
barred appellant from presenting CUA defense on primary caregiver
theory because he only supplied marijuana and nothing else. Reversed.

JURY SELECTION - BATSON/WHEELER - EXCLUSION OF SPANISH-SPEAKING JURORS
People v. Gonzales (C.A. 3rd, 7/30/08, C054743) 08 C.D.O.S. 9928
San Joaquin County Judge Bernard Garber erred prejudicially in
finding that prosecutor's systematic challenge of all Spanish-speaking
jurors was not Batson/Wheeler violation. The prosecutor justified the
challenges at least partly on the basis that the jurors would be
"listening to actually [sic] what is being said versus what is being
interpreted ...."
Judge Garber "commented it was uncertain if language was a cognizable
protected group. The court stated: 'It’s race, color, religion, sex,
national origin, but speaking a language, I don’t — I mean, the issue
here has been raised as to whether or not jurors are going to be able
to listen to the interpreter as opposed to what the witnesses say.'”
Court notes language in plurality opinion of Hernandez v. New York
(1991) 500 U.S. 352, 371 which warns that “Our decision today does not
imply that exclusion of bilinguals from jury service is wise, or even
that it is constitutional in all cases. It is a harsh paradox that one
may become proficient enough in English to participate in trial
[citation], only to encounter disqualification because he knows a
second language as well.” (Plur. opn. of Kennedy, J.) Distinguishes
People v. Cardenas (2007) 155 Cal.App.4th 1468 and Hernandez itself,
because in those cases the challenges followed the jurors' expression
of hesitancy in ability to follow interpretation rather than actual
testimony. "We conclude the prosecutor’s 'Spanish-speaking'
justification was unconstitutionally racially based."

HEARSAY - SIXTH AMENDMENT - STATEMENTS TO PARAMEDICS AND POLICE AT
CRIME SCENE
People v. Osorio (C.A. 4th, 7/30/08, G036221) 08 C.D.O.S. 9933
Victim's statements to paramedic and police officer at scene,
describing her attacker, were nontestimonial and did not violate Sixth
Amendment. (C.f., Crawford v. Washington (2004) 541 U.S. 36; see
People v. Cage (2007) 40 Cal.4th 965, 984.) Subsequent description
properly admitted as partial impeachment under Evidence Code section
1202, when jury instructed to consider it only as impeachment and not
for the truth. Disagrees with People v. Beyea (1974) 38 Cal.App.3d
176, which held prosecutor could not introduce hearsay and then use
prior inconsistent statement to impeach the hearsay.
Court refused to consider doctrine of forfeiture-by-wrongdoing
(victim had died by time of trial) because DA did not present it below
and thus trial court never held evidentiary hearing to determine
whether it applied.

SEARCH & SEIZURE - DELAYED SEARCH OF CELL PHONE TAKEN FROM ARRESTEE'S
PERSON
People v. Diaz (C.A. 2nd, 7/30/08, B203034) 08 C.D.O.S. 10014
Search of cell phone 90 minutes after seizure from arrestee is
proper. It was immediately associated with defendant's person at time
of arrest and properly subject to delayed warrantless search. (United
States v. Chadwick (1977) 433 U.S. 16, fn. 10; United States v.
Edwards (1974) 415 U.S. 800, 810.)

DISMISSALS - CONCEALMENT OF WITNESS
People v. Pearson (C.A. 2nd, 7/30/08, B198805) 08 C.D.O.S. 10016
Defendant concealed victim/witness and obtained partial acquittal,
then produced her as defense witness on other counts. Trial court
vacated partial acquittal. Held, defendant "estopped from seeking
refuge under the jeopardy umbrella" based on theory that "no one can
take advantage of his own wrong." (Civ. Code sec. 3517.)

COUNSEL - SELF-REPRESENTATION - FARETTA ERROR CURED BY RETAINING COUNSEL
People v. Weeks (C.A. 2nd, 7/31/08, B199849) 08 C.D.O.S. 10020
Trial court committed Faretta error when Los Angeles County Judge
Robert J. Perry re-appointed public defender to represent defendant
over his stated desire to remain in pro. per., but error cured when
appellant appeared with retained counsel for trial, and did not
revisit Faretta issue.

THEFT - GRAND THEFT FROM PERSON - FORGED CHECK
People v. Cuellar (C.A. 3rd, 7/31/08, C056855) 08 C.D.O.S. 10023
Evidence sufficient for grand theft from person conviction based on
defendant's act of snatching forged check from clerk's hand. Forged
check had "some intrinsic value," even though it did not have value
equal to that for which it is written. (United States Rubber Co. v.
Union Bank & Trust Co. (1961) 194 Cal.App.2d 703, 708–709.) (See
People v. Caridis (1915) 29 Cal.App. 166.)

DRUGS - MEDICAL MARIJUANA - COMPASSIONATE USE ACT AND MEDICAL
MARIJUANA ACT
People v. Phomphakdy (C.A. 3rd, 7/31/08, C056881) 08 C.D.O.S. 10029
Medical Marijuana Program Act’s numerical limits (no more than 8
ounces or 12 immature plants) are an unconstitutional amendment to the
Compassionate Use Act. Unconstitutional amendment prejudicial;
reversal required.

SEX OFFENSES - PRIOR CONVICTIONS FOUND BEYOND REASONABLE DOUBT CURED
GIBSON ERROR
Mendez v. Knowles (9th Cir. 8/1/08, 06-15153) 08 C.D.O.S. 10080
CALJIC 2.50.01 instruction that if jury found by preponderance of
evidence that defendant committed prior sexual offenses it could infer
he was likely to commit crimes for which he was on trial did not
violate due process and jury trial when court also instructed guilty
verdict had to be found beyond reasonable doubt. (CALJIC 2.50.1.)
Distinguishes Gibson v. Ortiz (9th Cir. 2004) 387 F.3d 812 because
here one previous offense was proven beyond a reasonable doubt and
found true by the jury using that standard.

SEX OFFENSES - PRIOR OFFENSES ADMITTED UNDER EVIDENCE CODE SECTION 1108
People v. Manning (C.A. 4th, 7/31/08, E042230) 08 C.D.O.S. 10119
Evidence Code section 1108 is constitutional as applied and on its
face. Facial challenge presented to preserve it for further review in
light of People v. Falsetta (1999) 21 Cal.4th 903, 911. Evidence
properly admitted even when victim's credibility is at issue.

GUILTY PLEAS - KOZINSKI REAMS SOUTERN DISTRICT U.S. ATTORNEY
Garcia-Aguilar v. U.S. District Court for Southern District of
California (9th Cir. 8/6/08, 07-70293, 07-71177, 07-71408) 2008 WL
3009680, 08 C.D.O.S. 10220
Chief Judge Kozinski (joined by Judge McKeown and District Judge
Robert Jones) commands District Judges Larry Burns, Roger Benitez and
Audrey Collins to accept defendants' unconditional guilty pleas
entered before magistrate judges who conducted plea colloquies under
Rule 11. He starts by saying: "These consolidated cases show again why
the ten most terrifying words in the English language may be, “'I'm
from the government and I'm here to help you.'” [Ed. Note: If that
isn't the quote of the year I don't know what is.] He then goes on to
say that when the cases came before these judges for sentencing, the
U.S. Attorney objected on the grounds that the magistrate judges had
erred in conduct the Rule 11 colloquies. Kozinski quips, "Rule 11(b)
is there for the defendant's benefit, so it seems quite noble at first
for the U.S. Attorney to stick up for defendants' rights. But this
generosity comes at a steep price: The U.S. Attorney has already
arraigned defendants on superseding indictments that specifically
charge a violation of 8 U.S.C. § 1326(b)(2), which is punishable by
twenty years in prison. This is eighteen years more than the two-year
maximum sentence available under defendants' original indictments,
which did not charge any conduct that could increase the maximum
penalty above two years." The defendants "reject the government's
help" and sought mandamus to compel the judges to accept their pleas.
The whole mess had been caused by the U.S. Attorney, who had failed
to allege in the defendants' original indictments that they were
previously removed for committing felonies. Under Apprendi, that
failure prevented the use of the fact to elevate the sentence.
Ed. Note: the decision focuses on the U.S. Attorney's actions, but
impliedly also blasts the district court judges, who found the
perfectly correct colloquies of their magistrate judges to be wrong in
order to please the prosecutor.

SENTENCING - JUDGE CHANGING TERMS OF NEGOTIATED SENTENCE
People v. Segura (Ca. Sup. Ct., 8/4/08, S148536) 08 C.D.O.S. 10140
Trial court’s statutory authority to modify conditions of probation
in the exercise of its jurisdiction over a probationer does not extend
to modifying a material term of a plea agreement that bestowed the
privilege of probation subject to defendant’s service of a specified
jail term. Therefore trial court was correct in ruling it did not have
jurisdiction to reduce jail term nunc pro tunc to 360 days in order to
save defendant from deportation. Defendant had originally bargained
for a 365 day term, and received the benefit of probation on a Two
Strike case. Trial court only retained its authority pursuant to Penal
Code section 1203.3 to revoke, modify, or change probation or modify
conditions that were not made a part of the parties’ plea agreement.

PRIORS - PROPENSITY EVIDENCE IN CHILD ABUSE PROSECUTION
People v. Dallas (C.A. 4th, 8/4/08, E043786) 08 C.D.O.S. 10166
No error in admitting, under Evidence Code section 1109, prior acts
of domestic violence against former girlfriend and prior child abuse
against that woman's child, in prosecution for abusing current
girlfriend's child. Because defendant lived with the baby, this was
not only a child abuse prosecution (subsection (a)(3)) but a domestic
violence prosecution (subsection (a)(1).)

SPEEDY TRIAL - TIME WAIVER BY APPOINTED COUNSEL TO ACCOMODATE ANOTHER
CLIENT'S CASE
Barsamyan v. Appellate Division of the Superior Court of Los Angeles
County (Ca. Sup. Ct., 8/7/08, S148712) 08 C.D.O.S. 10248
Appointed defense counsel’s consent to or request for continuance in
one case to accommodate counsel’s obligations to a client in another
case initiates the commencement of a new 10-day grace period in the
case of out-of-custody misdemeanants who previously waived time, in
the absence of a personal objection from the client, even when
appointed counsel's calendar congestion is the cause of the delay.
(Penal Code section 1382(a)(2)(B) & (3)(B).) "Defense counsel, as part
of his or her control of the procedural aspects of a trial, ordinarily
has authority to waive the statutory speedy trial rights of his or her
client, even over the client’s objection, as long as counsel is acting
competently in the client’s best interest. (People v. Harrison (2005)
35 Cal.4th 208, 225; Townsend v. Superior Court (1975) 15 Cal.3d 774,
781, 784 (Townsend).) This is because statutory speedy trial rights
are not among those rights that are considered so fundamental that
they are “beyond counsel’s primary control.” (Townsend, supra, 15 Cal.
3d at p. 781; cf. New York v. Hill (2000) 528 U.S. 110, 114–115
[recognizing the authority of defense counsel to waive specified
federal statutory speedy trial rights].) On the other hand, our
concern for the client’s right to the assistance of unconflicted
counsel has led us to conclude that appointed defense counsel lacks
authority to waive his or her client’s statutory speedy trial rights
when the client personally objects to a continuance and the sole
reason for the continuance is defense counsel’s obligation to another
client. (People v. Wright (1990) 52 Cal.3d 367, 389; People v. Johnson
(1980) 26 Cal.3d 557, 566–569 (Johnson); see also Eshaghian v.
Municipal Court (1985) 168 Cal.App.3d 1070, 1080.)"
The distinction between this case and People v. Johnson is the
personal objection of the defendant: "The circumstance that petitioner
did not object personally when defense counsel consented to a
continuance serves to distinguish the present case from Johnson,
supra, 26 Cal.3d 557. If petitioner personally had objected to the one
or two days’ continuance contemplated by her counsel, she might have
been offered alternative counsel who could be ready for immediate
trial — as the trial court itself recognized. Because she did not
object, that option was not explored. In the absence of an objection,
she is not entitled to dismissal."
Use note: It seems to me that appointed counsel has a duty to inform
her client that the client has a right to object to the continuance.

July 25, 2008 Reasonable Doubts

Grace Suarez — Wed, 06 Aug 2008 14:43:55 -0700

JURY SELECTION - BATSON/WHEELER - COMPARATIVE REVIEW ON APPEAL
People v. Lenix (Ca. Sup. Ct., 7/24/08, S148029) 08 C.D.O.S. 9383
Bowing to United States Supreme Court authority (Miller-El v. Dretke
(2005) 545 U.S. 231; Snyder v. Louisiana (2008) 128 S.Ct. 1203), the
California Supreme Court finally admits (see People v. Johnson (2003)
30 Cal.4th 1302) that appellate courts must perform comparative juror
analysis for the first time on appeal to evaluate whether the lawyer's
reasons for peremptorily challenging prospective jurors are truthful
or pretextual. Court conducts review and rejects claim. Court urges
that comparative analysis be done first in the trial court.

JURY SELECTION - BATSON/WHEELER
People v. Cruz (Ca. Sup. Ct., 7/24/08, S042224) 08 C.D.O.S. 9396
Challenge of Hispanic-surnamed juror who was not Hispanic was not a
challenge based on race or ethnicity. See People v. Trevino (1985) 39
Cal.3d 667, 684.

SENTENCING - NO RIGHT TO UNSWORN ALLOCUTION
People v. Evans (Ca. Sup. Ct., 7/24/08, S141357) 08 C.D.O.S. 9416
California law (Penal Code section 1200) gives defendant a right of
allocution at sentencing, but only while under oath and subject to
cross-examination by DA. Defendant's request to "speak" was made after
his attorney submitted the matter, so even if the request could be
construed as a request to testify under oath, it came too late.

JURY INSTRUCTIONS- CALJIC 2.50.01 AND 2.50.1
Mejia v. Garcia (9th Cir. 7/25/08, 6-16460) 08 C.D.O.S. 9539
Jury instructions did not violate due process rights under In re
Winship (1970) 397 U.S. 358 (Due Process Clause of the Fourteenth
Amendment requires that the prosecution prove beyond a reasonable
doubt every fact necessary to establish each element of the crimes
charged). Even though giving CALJIC 2.50.01 and 2.50.1 was error as to
the rape counts (which the AG conceded under compulsion of Gibson v.
Ortiz, 387 F.3d 812 (9th Cir. 2004)), the error did not infect the non-
rape counts because there was not a reasonable likelihood the jury
applied the challenged instructions to the non-rape charges so as to
violate the Constitution.

PRIORS - UNCHARGED - NO FEDERAL CONSTITUTIONAL VIOLATION
Mejia v. Garcia (9th Cir. 7/25/08, 6-16460) 08 C.D.O.S. 9539
Admission of uncharged prior sex offenses did not render assault and
kidnapping convictions in violation of clearly established law as
established by Supreme Court precedent (federal habeas standard). See
United States v. LeMay, 260 F.3d 1018 (9th Cir. 2001)

JURY - ERRONEOUS DISMISSAL OF JUROR REQUIRES REVERSAL OF PENALTY PHASE
People v. Wilson (Ca. Sup. Ct., 7/28/08, S089623) 08 C.D.O.S. 9628
Trial court erred prejudicially in erroneously dismissing juror
"because it was not shown to a demonstrable reality that [the juror]
was unable to perform his duty ...." (People v. Cleveland (2001) 25
Cal.4th 466, 474.) This action violated Penal Code section 1089. Court
does not reach constitutional issues.

SEXUALLY VIOLENT PREDATORS - RIGHT TO TESTIFY AGAINST COUNSEL'S WISHES
People v. Allen (Ca. Sup. Ct., 7/28/08, S148949) 08 C.D.O.S. 9685
Defendant in SVP proceeding has federal and state constitutional
right to testify even against counsel's wishes, but court's refusal to
permit him to testify is tested under Chapman standard and found
harmless beyond reasonable doubt (there was a proffer, so the court
knew what the testimony would be).

DRUGS - RIGHT TO JURY TRIAL ON CLEANUP COSTS
People v. Wilen (C.A. 1st, 7/25/08, A115861) 08 C.D.O.S. 9719
Trial court erred in refusing jury trial on question of hazardous
clean-up expenses recovery under Health & Safety Code section 11470.2
and in not permitting defendant to be personally present when amount
was set, but error was harmless. Sixth Amendment protections do not
extend to restitution proceedings. (See United States v. Milkiewicz
(1st Cir. 2006) 470 F.3d 390, 403, fn. 24 [“courts have concluded that
restitution is not the sort of ‘punishment’ to which the Sixth
Amendment applies”]; United States v. Rostoff (1st Cir. 1999) 164 F.3d
63, 71 [“All circuits that have decided the issue have held that… the
Seventh Amendment simply does not apply to a determination of the
amount of a restitution order”]; cf. United States v. Carruth (8th
Cir. 2005) 418 F.3d 900, 904 [“Those circuits which have considered
the question anew in light of Blakely are in agreement that it did not
alter the analysis or lead to a different result.”].)

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July 23, 2008 Reasonable Doubts

Grace Suarez — Tue, 05 Aug 2008 10:26:24 -0700

COUNSEL - CONFLICT - HEARING REQUIRED
Houston v. Schomig (9th Cir. 7/22/08, 06-15523) 08 C.D.O.S. 9205
Remand for evidentiary hearing to determine whether petitioner's
right to conflict-free counsel was violated by judge's denial of
public defender's motion to withdraw based on prior representation of
prosecution's star witness. There is a constitutional right to
conflict-free counsel. (Strickland v. Washington (1984) 466 U.S. 668,
688. Petitioner must establish actual conflict, that is, the effect a
potential conflict had on counsel's performance. (Mickens v. Taylor
(2002) 535 U.S. 162, 171.) When counsel points out conflict in joint
representation, trial court is required to investigate further;
"ignoring counsel's objection mandates automatic reversal of the
ensuing conviction." (Citing to Holloway v. Arkansas (1978) 435 U.S.
475, 488.) Supreme Court has left open question whether same standard
applies in successive representation cases. Here, judge's exclusive
focus on witness was misplaced; he failed to ask either counsel or the
defendant about the effect of the conflict, even after counsel said
that his "heart is going to be with [the witness]."

PAROLE - MULTI-YEAR DENIALS, TRANSCRIPTS, ATTORNEY FEES
In re Lugo (C.A. 1st, 7/21/08, A114111) 08 C.D.O.S. 9219
Trial court's order to parole board to not deny further parole
consideration for more than one year for prisoners who had been
formerly denied for one year in absence of significant change in
circumstances unlawfully limited Board's discretion granted to it by
Penal Code section 3041.5 and violated separation of powers.
Court's order that prisoners had to be given transcripts within 30
days addressed an issue not properly before it in the habeas
proceeding, which was limited to timely provision of parole hearings.
In habeas, the parties' pleadings define the issues. (Board of Prison
Terms v. Superior Court (2005) 130 Cal.App.4th 1212, 1235.) Issues may
not extend beyond claims alleged in the petition. Respondent may not
raise additional issues in the return, and petitioner may not raise
additional issues in the traverse.
Trial court did was not clearly wrong in applying 1.5 multiplier in
awarding attorney fees.

DRUGS - MAINTAINING PLACE
People v. Moseley (C.A. 5th, 7/21/08, F052682) 08 C.D.O.S. 9263
Concurrent sentence for opening/maintaining place for selling etc.
drugs did not have to be stayed pursuant to Penal Code section 654
because there was substantial evidence to support court's implicit
finding of separate objectives. Evidence showed that Moseley
maintained the apartment with the intent of continuously providing a
location for meeting as many as four or five buyers a day and selling
methamphetamine to them. This was independent of the objective of
selling the nine particular bags in his possession on the day of his
arrest.

PRIORS - UNLAWFUL USE OF COMMUNICATION FACILITY
United States v. Jimenez (9th Cir. 7/23/08, 07-10399) 08 C.D.O.S. 9323
Prior conviction for unlawful use of communication facility was "drug
trafficking offense" using modified categorical approach. Agrees with
United States v. Orihuela (11th Cir. 2003) 320 F.3d 1302, 1305.

EVIDENCE - CHAIN OF CUSTODY - A LINK HERE, A LINK THERE
People v. Jimenez (C.A. 5th, 7/22/08, F052723) 08 C.D.O.S. 9340
Chain of custody of DNA sample was inadequate and admission of
testimony was prejudicial denial of due process. "Read together as a
whole, the testimony of the sergeant, the chief investigating officer,
and the criminalist fail to resolve key foundational issues about the
chain of custody. Who labeled the swabs at the police department? Who,
if anyone, sealed the swabs at the police department? Who, if anyone,
segregated the swabs from other evidence at the police department to
minimize the possibility of inadvertent substitution of swabs in one
case for swabs in another case? Who, if anyone, at the police
department put the swabs in safe storage to which only authorized
persons had access to minimize that possibility? Did each and every
person at the police department who had anything to do with the swabs
follow established protocol for the secure transfer of evidence from
one person to another within the department and from the department to
DOJ? Were the swabs, if sealed by anyone at the police department,
still sealed on arrival at DOJ? If so, did the criminalist himself
break the seals on the swabs he analyzed? If not, who did? Did each
and every person at DOJ who had anything to do with the swabs follow
established protocol for the secure transfer of evidence from one
person to another within DOJ? As to all of that, the record is silent."
"Here, the chain of custody amounts to nothing more than a link here,
a link there, with little more than speculation to connect the links
into a chain."
Ed. Note: I love that quote!!!

---------------------------------------- Grace Suarez, Lawyer and Life Coach San Francisco Macs Rule!

New trip organizing site

Grace Suarez — Tue, 22 Jul 2008 13:17:29 -0700

Just spent some time putting our travel plans on a new site, www.tripit.com. It's in beta, but everything works. You enter all the details of an upcoming trip and it sets up an itinerary, finds locations in Google maps, prints it and lets you share it with others. If you have a confirmation email from a supported site (e.g., United Airlines) forward it to the site and it will put the information into the itinerary. I was very impressed.

July 21, 2008 Reasonable Doubts

Grace Suarez — Mon, 21 Jul 2008 14:21:45 -0700

HEARSAY - HARMLESS ERROR
United States v. Gonzalez (9th Cir. 7/18/08, 06-50461) 08 C.D.O.S. 9110
Retelling of victim's story by police officer was inadmissible
hearsay, as it was not a prior consistent statement, since it was not
offered to rebut express or implied charge of recent fabrication.
Admission was prejudicial, but not likely to have altered jury's
verdict. Retelling of second victim's story was admissible as prior
consistent statement, since cross-examination was intended to case
doubt on her veracity.
Ed. Note: "As the Supreme Court has sententiously observed, persons
are entitled to fair trials, not perfect ones. Ross v. Oklahoma, 487
U.S. 81, 91 (1988)." Did Judge Noonan really mean to say
"sententiously?" That's not very nice.

JURY SELECTION - BATSON/WHEELER - PRETEXTUAL REASONS
Green v. LaMarque (9th Cir. 7/17/08, 06-61254) 08 C.D.O.S. 9116
"While selecting a jury for a criminal trial in Alameda County,
California, the prosecutor used peremptory challenges to exclude from
the jury all six African-Americans on the jury panel. The African-
American defendant claimed the prosecutor based such challenges on
race. The prosecutor then offered race-neutral reasons which, we now
conclude, also applied to unchallenged white jurors. This disparity in
treatment convinces us the non-racial reasons claimed by the
prosecutor were pretexts. Because the elimination of even a single
juror due to race taints the trial, we reverse the district court’s
denial of the writ of habeas corpus."
Ed. Note: this opinion is authored by Judge Bea, one of the more
conservative members of the court. He notes that Justice Kline
dissented. This decision clearly illustrates how far off the
California courts are in their Batson analyses. I'm afraid the only
justice on Batson issues is to be found in the federal appellate courts.

ALIEN SMUGGLING - STATE-SIDE ASSISTANCE AND COLLABORATION
United States v. Singh (9th Cir. 7/17/08, 07-30150) 08 C.D.O.S. 9128
Agreement by defendant to provide state-side transport and return of
passport to Canada sufficient to convict for aiding and abetting crime
of bringing alien to U.S. See also United States v. Lopez (9th Cir.
2007) 484 F.3d 1186.)

IDENTITY THEFT - AGGRAVATED
United States v. Miranda-Lopez (9th Cir. 7/17/08, 07-50123) 08
C.D.O.S. 9134
Aggravated identity theft, 18 U.S.C. sec. 1028A(a)(1), requires proof
that, among other things, the defendant knew that the means of
identification belonged to another person. It is not enough to prove
only that the defendant knew he was using a false document. See United
States v. Villanueva-Sotelo, 515 F.3d 1234 (D.C. Cir. 2008).

SEARCH & SEIZURE - BORDER SEARCH
People v. Endacott (C.A. 2nd, 7/16/08, B199122) 08 C.D.O.S. 9176
Border search exception (no suspicion needed) extends to viewing
files from seized computers. Computers are not entitled to greater
protection than other items because they may contain expressive (First
Amendment) materials.

HOMICIDE - DEFENSES - VOLUNTARY INTOXICATION - JURY INSTRUCTIONS
People v. Turk (C.A. 4th, 7/17/08, D049923) 08 C.D.O.S. 9184
Trial court did not err in instructing that when a voluntarily
intoxicated defendant kills another without premeditation and
deliberation and without express malice, the crime is no more than
involuntary manslaughter. A defendant who kills without express malice
due to voluntary intoxication can still act with implied malice.
Defendant was not so intoxicated as to be unconscious. CALCRIM 625 is
a correct statement of law.

HABEAS CORPUS - FEDERAL - SECOND PETITION BASED ON WITHHELD EVIDENCE
United States v. Lopez (9th Cir. 7/16/08, 07-35389) 08 C.D.O.S. 9030
Ninth Circuit panel denies certification to file second/successive
habeas petition based on newly discovered evidence wrongfull withheld
by the government, because the evidence would not be sufficient to to
establish by clear and convincing evidence that no reasonable
factfinder would have found her guilty. Government's conduct, "albeit
troublesome," was not "'so grossly shocking and so outrageous as to
violate the universal sense of justice,'" (quoting from United States
v. Restrepo (9th Cir. 1991) 930 F.2d 705, 712.) "Although we find it
troubling that the government’s failure to disclose the Bailey
memorandum to Lopez earlier had the effect of imposing on her the
burdens of complying with sections 2244 and 2255, particularly the
strict standards governing second or successive habeas applications,
there is no evidence that the prosecutors here were pursuing a
strategy to put her in such an unfavorable position. Were there such
evidence, this would be a different case."

SEXUALLY VIOLENT PREDATORS - INDEFINITE COMMITMENT
People v. Boyle (C.A. 1st, 7/16/08, A117860) 08 C.D.O.S. 9046
Commitment pursuant to amended version of Welfare & Institutions Code
sections 6600-6609.3 did not violate due process, ex post facto
prohibition, double jeopardy or equal protection. Amendments to the
SVPA apply prospectively to all proceedings pending at the time that
those amendments became effective.

SENTENCING - IMPOSITION OF ENHANCEMENT FOLLOWING REVOCATION
In re Renfrow (C.A. 3rd, 7/16/08, C055564) 08 C.D.O.S. 9068
When court revokes and declines to reinstate probation after having
imposed sentence but suspended execution during period of probation,
court “must order that exact sentence into effect” (People v. Howard
(1997) 16 Cal.4th 1081, 1088; Pen. Code, sec. 1203.2, subd. (c)).
However, if the sentence was an unauthorized sentence, trial court can
order execution of the correct sentence whether it is more or less
than the sentence previously imposed. Fact that court did not mention
GBI enhancement when suspending execution did not mean that it could
not impose it following revocation.

ASSAULT - SUFFICIENCY OF EVIDENCE
People v. Steele (C.A. 3rd, 7/15/08, C053662) 08 C.D.O.S. 9070
Evidence did not support assault with intent to produce GBI because
defendant did not have "present ability" to ignite oven gas in well
ventilated mobile home.

SEARCH & SEIZURE - PAROLE SEARCH DID NOT EXTEND TO WOMAN'S PURSE
People v. Baker (C.A. 5th, 7/15/08, F052913) 08 C.D.O.S. 9082
Search of woman's purse was not justified by male driver's parole
status. "We conclude on these facts that there could be no reasonable
suspicion that the purse belonged to the driver, that the driver
exercised control or possession of the purse, or that the purse
contained anything belonging to the driver."
Use note: even though the officer could not say whether the purse was
"distinctly female," the court looked at the photo of the purse in the
record and "we can say with certainty the purse is one typically
carried by females in this society."

SENTENCING - FEDERAL - WEIGHT OF ALL DRUGS IN CONSPIRACY
United States v. Dallman (9th Cir. 5/19/08, 05-30349) 08 C.D.O.S. 8983
Defendant who acted with co-conspirators to smuggle marijuana could
be held accountable for entire 142.69 pounds of the drug and sentenced
accordingly. "The district court did not err in viewing the conspiracy
in which Dallman, Souza, and Thistlewaite participated as a joint
undertaking rather than as several separate criminal activities and,
as a result, basing its calculation of Dallman’s Guidelines range on
the aggregate amount of marijuana that the three men carried."

CONFESSIONS - ARANDA/BRUTON - TOO MUCH REDACTION
People v. Stallworth (C.A. 2nd, 7/1/08, B198111) 08 C.D.O.S. 8946
Redaction of defendant's statements to remove reference to co-
defendant prejudiced defendant because it stripped him of credibility
by rendering his account of the events incomplete. "Here, either the
statement should have been excluded in its entirety or the full,
unredacted statement should have been admitted under Evidence Code
section 356, ...." (See People v. Douglas (1991) 234 Cal.App.3d 273.)

SEX OFFENSES - SPOUSAL RAPE - EXPERT TESTIMONY
People v. Sandoval (C.A. 3rd, 7/11/08, C056451) 08 C.D.O.S. 8956
Trial court properly excluded defense expert testimony on "make-up
sex" (phenomena of sex being more arousing after a fight). "We
conclude the proffered expert testimony would not have assisted the
jury in understanding the concept of make-up consensual sex. Nor would
it have assisted the jury in determining the complaining witness’s
credibility — the primary issue at trial. There was simply no need for
expert testimony."

iPhone 3G: getting silly

Grace Suarez — Thu, 17 Jul 2008 16:21:10 -0700

Admit it, haven't you always wanted your own light saber? Install this free app (remember, they're all at the Apple App Store, either through iTunes on the Mac or the App Store on your iPhone), click on it, choose a color and swing your iPhone around (gently now, you don't want to throw it). You'll hear it. Sounds like the real thing. The perfect putdown for the wiseguy on the stool next to you.

Adobe Acrobat 9: not just 8.5

Grace Suarez — Wed, 16 Jul 2008 11:37:08 -0700

Just got through watching and listening to a live presentation about the new Adobe 9 in a legal environment. I'm impressed. The features which were to me the most interesting:

Acrobat.com. This is not a 9 feature, but a whole new free (yes, that magic word) service available to anyone. Five GB of storage and collaboration space. Conferencing, document sharing, temporary backup, you name it. Did I say free?
Flash is now built into Adobe, which means that if you embed Flash into your document using AA9 Extended (not available for Macs -- what's that about), the recipient will not need to download anything else to see the video.
Portfolio. Create a single .pdf file with pdfs, Word files, Excel files, images. All can be viewed from Acrobat itself. Create a Welcome page, add notes to files, organize files into folders. Worth the price of the product just for this feature.
Forms. Vastly simplified form creation, and simplified data gathering using forms and adobe.com.
Bates numbering. Improvements, lots of them. Rename documents with Bates page ranges.
Redaction. Really smart. Search and redact, redact portions of documents, whole pages.
Export of pdf to Word now supports flowing text so that the resulting document is much more useable.
Compare pdf documents. Haven't tried that yet but it looks very powerful.
Collaboration. Look at the same page of the same document on two computers, and chat back and forth.

I bought AA9 Pro the day it came out. I recommend you download the Reader (free) if nothing else, but try the Trial version of Pro or Pro Extended (for Windows).

For more information, check out one of the Adobe blogs.

It's okay, Steve: apology accepted

Grace Suarez — Wed, 16 Jul 2008 09:44:51 -0700

The Apple MobileMe team issued an apology today. MobileMe, the replacement for .Mac, the "cloud computing" function which offers (or at least promises) syncing and online storage, got off to a rocky start. The team admitted the transition was "a lot rockier than we had hoped." They will also not use the word "push" to describe the syncing among the cloud and devices because it can take up to 15 minutes. They will use "push" when the sync is nearly instantaneous.

As an appreciation for our patience all current subscribers will receive an automatic 30-day extension of our contracts.

My comment: the MobileMe transition was a bit rocky, but no data was lost, and all the core services (especially Mail) continued to work, so it was not a disaster. The 30-day extension is a nice little thank you. Anyway, I've been so buy playing with my 3G iPhone I haven't had time to obsess about MobileMe.

Apology accepted, Steve. Don't yell at the MobileMe team (well, not too much anyway).

iPhone 3G: a really cool photo app!

Grace Suarez — Tue, 15 Jul 2008 09:34:22 -0700

The 3G iPhone has the capability to geotag photos, that is, to put location coordinates (longitude and latitude) into a photo's information. One of the first apps to make use of this capability is SodaSnap Postcards. Take a picture, enter an email address, a greeting, and a nice little postcard (not cheesy) is sent to your recipient. The recipient views the card in the email, and clicks on a link to see the exact location on Google Maps. No more buying crummy postcards of the Eiffel Tower. Make your own!

Oh, did I mention it was free and available from the App Store?

Spies, are you listening?