Mr. McGehee stabbed his mum in the neck 10 times, killing her. McGehee pleaded not guilty and not guilty by reason of insanity. He suffered from a mental illness and claimed he was under the delusion that his mother was a demon. A jury found him guilty of second degree murder and found him legally sane at the time of the murder.
The Third District affirms the conviction.
In the published portions of the opinion, the panel addresses two issues. The first is whether the trial court erred in instructing the jury that it could only consider the defendant's evidence of mental illness for the purposes of determining whether he formed the specific intent to kill his mum. McGehee argued that instruction was erroneous given that the court also gave the instruction that allowed the jury to infer consciousness of guilt from false statements McGehee made to his sister following the killing. McGehee argued that the jury should have been instructed it could also use the mental illness evidence to decide whether he knew the statements were false at the time he made them, or whether due to delusions, he believed them to be true.
The panel agrees with McGehee on this point, the mental health evidence was admissible and relevant to the issue of whether McGehee's false statements amounted to evidence he was aware of his own guilt. However, placing the error in the context of the remaining evidence, the panel concludes the error did not meet the Watson standard, and hence the issue was forfeited by the lack of objection at the trial.
The second issue was whether McGehee was entitled to an involuntary manslaughter instruction. Involuntary manslaughter is an unlawful killing of a human being without malice and without an intent to kill. While the physical evidence was overwhelming that McGehee intended to kill his mother given the number and severity of the stab wounds, McGehee argued that he didn't intend to kill a human being, rather he intended to kill a demon, and as he did not intend to kill a human being, an involuntary manslaughter instruction was warranted. The panel is not convinced.
The opinion acknowledges whether McGehee knew it was his mother he was stabbing or whether he believed she was a demon was a relevant trial issue. But it holds that it was an issue for the sanity phase of the trial, not the guilt phase. Just as pure delusion that the victim is a demon cannot constitute the ground for a finding of reasonable self defense, it also cannot negate the intent to kill. Such questions of pure delusion belong in the sanity phase where they can form the basis for a finding that the defendant did not appreciate the wrongfulness of his actions. And here the jury found during the sanity phase that McGehee did know it was his mum he was stabbing.
Friday, April 29, 2016
P v. Steele (3rd Dist.) Sometimes the Police May Detain Someone Absent a Suspicion of Wrongdoing
Mr. Steele was driving a rented Jeep on a rural dead-end road. Steele was following an SUV whose owner had a felony arrest warrant. Steele pulled into a driveway behind the SUV. A police car pulled behind Steele with emergency lights on. The police were there to execute the arrest warrant. As the police approached the SUV, they first contacted Steele. Steele's car smelled of weed and one policeman saw weed in the backseat.
Eventually Steele's car was searched and found to contain bags of marijuana and methamphetamine. Steele moved to suppress the drugs as the fruit of an unlawful seizure in violation of the Fourth Amendment to the United States Constitution. The trial court denied the motion, finding the encounter was not a detention, rather a consensual encounter. After his motion was denied, Steele pleaded guilty to possession of methamphetamine for sale and was sent to prison for six years. Steele appealed.
The Third District affirms, but disagrees with the trial court on the issue of whether the police detained Steele. The panel finds that Steele was detained, but that the detention was lawful, and because the police saw and smelled marijuana during a lawful detention, the resultant search was legal under the automobile exception to the warrant requirement.
The result is probably correct. However the analysis is irritating and likely to encourage trial courts to stray from a proper disciplined approach to Fourth Amendment questions and instead substitute the Delphic circumlocution used here.
The accepted and disciplined approach, endorsed by the United States Supreme Court and the California Supreme Court, is that warrantless seizures are per se illegal, unless one of the recognized exceptions to the warrant requirement apply. This means the first question is always, "was there a warrant?". If the answer is "yes", the question is whether the challenged search or seizure was pursuant to the warrant. If the answer is "no", the question is whether the search or seizure was justified by one of the recognized "warrant exceptions". This approach can be difficult, but by enumerating the categories of warrantless searches and seizures that pass Constitutional muster has the benefit of insuring that any new distinct and substantial extension of police power comes from the High Courts.
When a difficult case comes before a lower court, there is a temptation to eschew the proper "warrant-exception" analysis and replace it with the "balancing" analysis. The "balancing" analysis is quite easy and convenient and thus like most short-cuts, resists most extermination attempts. Under the balancing method, first you misstate that all that is required of you is to find the government action "reasonable". Second, you state that "reasonableness" only requires that the government's interests accomplished by the police action in question outweigh the resultant intrusion into the individual's liberty. Third, you describe the governmental interest using grandiose and flowery adjectives (such as "weighty" and "compelling")and use minimizing and genteel language to describe the effect on the individual (like "minimally intrusive" and "brief"). Then you declare the government the winner and go home. This approach was the favorite of the late egotist William Rehnquist, but thankfully never caught on. The individual never wins the game under these rules.
However the ease of this method still holds utility for justices confronted with a novel situation and unfortunately (as here) intermediate appellate courts are not immune to its charms. Steele attempts to get the panel to play by the rules arguing that there was no reasonable suspicion to detain Steele, reasonable suspicion being one of the exceptions to the warrant requirement. Presented with this challenge, the panel fearfully flees from the accepted rubric and cleaves to the "balancing approach", citing to a Colorado case before pronouncing the government the winner.
This is a shame because the panel could have gotten to their desired result using a proper analysis. And it actually cited the case that would have gotten it there, Michigan v. Summers. In Summers, the police had a search warrant to search a house. When arriving to execute the warrant, a man was exiting the house. The police detained him and had him wait inside the house while they searched the house. The U.S. Supreme Court held that the authority of a search warrant carries with it the authority to detain the occupants of the property while the search is conducted to make sure the execution of the warrant is done efficiently and safely. This places such detentions within the warrant, meaning there is no need to craft an additional "warrant exception" within the accepted framework. To the initial question of "was the seizure pursuant to the authority of a warrant?", the answer is "yes".
Because the owner of the lead car in this case had a felony arrest warrant, it is not an unreasonable conclusion that within the authority of that warrant existed the right to briefly detention those in the immediate area to make sure the arrest warrant is executed safely and efficiently. This places the detention within the warrant. This is not a new idea, plenty of cases have held that an arrest warrant carries with it the authority to briefly detain those nearby. Such an analysis is superior in that it results in a holding that is narrow and does not result in an intermediate state appellate court creating a new exception to the Fourth Amendment's warrant requirement.
The opinion as it stands, does nothing other than confuse lower courts as to the proper method of Fourth Amendment analysis and tempt them to substitute the unbounded and meretricious "balancing test". California's Fourth Amendment jurisprudence is the worse for the order to publish this opinion.
Eventually Steele's car was searched and found to contain bags of marijuana and methamphetamine. Steele moved to suppress the drugs as the fruit of an unlawful seizure in violation of the Fourth Amendment to the United States Constitution. The trial court denied the motion, finding the encounter was not a detention, rather a consensual encounter. After his motion was denied, Steele pleaded guilty to possession of methamphetamine for sale and was sent to prison for six years. Steele appealed.
The Third District affirms, but disagrees with the trial court on the issue of whether the police detained Steele. The panel finds that Steele was detained, but that the detention was lawful, and because the police saw and smelled marijuana during a lawful detention, the resultant search was legal under the automobile exception to the warrant requirement.
The result is probably correct. However the analysis is irritating and likely to encourage trial courts to stray from a proper disciplined approach to Fourth Amendment questions and instead substitute the Delphic circumlocution used here.
The accepted and disciplined approach, endorsed by the United States Supreme Court and the California Supreme Court, is that warrantless seizures are per se illegal, unless one of the recognized exceptions to the warrant requirement apply. This means the first question is always, "was there a warrant?". If the answer is "yes", the question is whether the challenged search or seizure was pursuant to the warrant. If the answer is "no", the question is whether the search or seizure was justified by one of the recognized "warrant exceptions". This approach can be difficult, but by enumerating the categories of warrantless searches and seizures that pass Constitutional muster has the benefit of insuring that any new distinct and substantial extension of police power comes from the High Courts.
When a difficult case comes before a lower court, there is a temptation to eschew the proper "warrant-exception" analysis and replace it with the "balancing" analysis. The "balancing" analysis is quite easy and convenient and thus like most short-cuts, resists most extermination attempts. Under the balancing method, first you misstate that all that is required of you is to find the government action "reasonable". Second, you state that "reasonableness" only requires that the government's interests accomplished by the police action in question outweigh the resultant intrusion into the individual's liberty. Third, you describe the governmental interest using grandiose and flowery adjectives (such as "weighty" and "compelling")and use minimizing and genteel language to describe the effect on the individual (like "minimally intrusive" and "brief"). Then you declare the government the winner and go home. This approach was the favorite of the late egotist William Rehnquist, but thankfully never caught on. The individual never wins the game under these rules.
However the ease of this method still holds utility for justices confronted with a novel situation and unfortunately (as here) intermediate appellate courts are not immune to its charms. Steele attempts to get the panel to play by the rules arguing that there was no reasonable suspicion to detain Steele, reasonable suspicion being one of the exceptions to the warrant requirement. Presented with this challenge, the panel fearfully flees from the accepted rubric and cleaves to the "balancing approach", citing to a Colorado case before pronouncing the government the winner.
This is a shame because the panel could have gotten to their desired result using a proper analysis. And it actually cited the case that would have gotten it there, Michigan v. Summers. In Summers, the police had a search warrant to search a house. When arriving to execute the warrant, a man was exiting the house. The police detained him and had him wait inside the house while they searched the house. The U.S. Supreme Court held that the authority of a search warrant carries with it the authority to detain the occupants of the property while the search is conducted to make sure the execution of the warrant is done efficiently and safely. This places such detentions within the warrant, meaning there is no need to craft an additional "warrant exception" within the accepted framework. To the initial question of "was the seizure pursuant to the authority of a warrant?", the answer is "yes".
Because the owner of the lead car in this case had a felony arrest warrant, it is not an unreasonable conclusion that within the authority of that warrant existed the right to briefly detention those in the immediate area to make sure the arrest warrant is executed safely and efficiently. This places the detention within the warrant. This is not a new idea, plenty of cases have held that an arrest warrant carries with it the authority to briefly detain those nearby. Such an analysis is superior in that it results in a holding that is narrow and does not result in an intermediate state appellate court creating a new exception to the Fourth Amendment's warrant requirement.
The opinion as it stands, does nothing other than confuse lower courts as to the proper method of Fourth Amendment analysis and tempt them to substitute the unbounded and meretricious "balancing test". California's Fourth Amendment jurisprudence is the worse for the order to publish this opinion.
Thursday, April 28, 2016
P v. Vasquez & Bryant (3rd Dist.) Chiu Has No Application to the Principle of Transferred Intent in a Case of Premeditated 1Deg. Murder
Mr. Bryant and Mr. Vasquez were visiting a friend at an apartment complex, waiting to exact revenge on a rival gang member. Mr. Duncan, the target of Bryant's ire, and his girlfriend, Ms. Horton, lived at the complex and were returning home from a meal at Subway. Bryant drove through the complex parking lot with Vasquez his passenger. Bryant parked and Vasquez walked over to Duncan, took out a gun, and started firing. Duncan took out his own gun and fired back. Bryant, was hit, and called Bryant to drive over and get him out of there, which Bryant did. Duncan was hit, but survived. Horton was hit and killed.
Pertinent to the published portion of the opinion, Bryant was convicted of the first degree premeditated murder of Horton. He appealed.
The Third District affirms.
Bryant's argument on appeal (as to this count) is that the California Supreme Court's recent decision in Chiu, does not allow him to be found guilty of premeditated first-degree murder on a theory of transferred intent. "Not so," says the panel.
The discussion involves three legal concepts: aiding and abetting liability, the theory of "natural and probable consequences" (actually a subsection of aiding and abetting liability), and transferred intent.
Aiding and abetting liability is a form of vicarious liability in which a person harbors the specific intent that a target crime be committed by another person (we'll call him "the heavy") and then helps or encourages the heavy to carry out the crime. Should the heavy carry out the target crime, the aider and abettor is guilty of that target crime. Sometimes the heavy not only commits the target crime, but goes on to commit additional crimes while committing the target crime. Under the "natural and probable consequences" theory, when a heavy commits additional crimes, the aider and abettor is guilty of those crimes too (even if he never intended the heavy to commit the extra crimes) if the extra crimes are a "natural and probable consequence" of the target crime.
Here is a common example. Unhappy with my lifestyle, I talk to my wife about robbing our credit union. My wife says, "great idea honey, I'll be your getaway driver". She then drives me to the credit union and waits for me while I go inside, pull out a pistol, and demand an employee open the safe. The employee tells me he cannot open the safe because he doesn't have the necessary code. So I shoot him (he survives, it's just a flesh wound). I return to the car and tell my wife what happened, whereupon she scolds me for my idiocy and tells me, "I never intended for anyone to get hurt".
Under these facts I am guilty of, at least, robbery and assault with a firearm. My wife is also guilty of robbery and assault with a firearm. The robbery was the target crime and the firearm assault was a "natural and probable consequence" of the robbery.
There is one recent limitation on the "natural and probable consequence" doctrine. In Chiu, the California Supreme Court held that "natural and probable consequence" cannot be used to impose liability for premeditated first-degree murder (other forms of murder are okay).
Now we turn to "transferred intent". Premeditated first degree murder, under facts such as these, require an intent to kill the victim. But what if you shoot at the person you want to kill, miss him, and hit a person standing close by, killing that person? You didn't intend to kill the bystander, so does that not mean you are not guilty of premeditated first degree murder? No. The law uses the principle of "transferred intent" to impute to you the intent to kill the bystander.
Here, Bryant intended for Vasquez to kill Duncan and then help Vasquez escape from the scene. We'll assume Bryant had no intent to kill Duncan's girlfriend, Horton. Vasquez ends up killing Horton who is caught in the crossfire. Can Bryant be convicted of the premeditated first degree murder of Horton? Yes, says the opinion. And as the law stands now, it is correct. The target crime was murder, the crime Bryant intended and helped Vasquez to commit. The natural and probable doctrine has no application here. Bryant tries, admirably, to argue that the murder of Duncan was the target crime and the extra "natural and probable" crime was the murder of Horton. But as it is the target crime's intent which is transferred, the murder of Horton becomes the target crime.
Pertinent to the published portion of the opinion, Bryant was convicted of the first degree premeditated murder of Horton. He appealed.
The Third District affirms.
Bryant's argument on appeal (as to this count) is that the California Supreme Court's recent decision in Chiu, does not allow him to be found guilty of premeditated first-degree murder on a theory of transferred intent. "Not so," says the panel.
The discussion involves three legal concepts: aiding and abetting liability, the theory of "natural and probable consequences" (actually a subsection of aiding and abetting liability), and transferred intent.
Aiding and abetting liability is a form of vicarious liability in which a person harbors the specific intent that a target crime be committed by another person (we'll call him "the heavy") and then helps or encourages the heavy to carry out the crime. Should the heavy carry out the target crime, the aider and abettor is guilty of that target crime. Sometimes the heavy not only commits the target crime, but goes on to commit additional crimes while committing the target crime. Under the "natural and probable consequences" theory, when a heavy commits additional crimes, the aider and abettor is guilty of those crimes too (even if he never intended the heavy to commit the extra crimes) if the extra crimes are a "natural and probable consequence" of the target crime.
Here is a common example. Unhappy with my lifestyle, I talk to my wife about robbing our credit union. My wife says, "great idea honey, I'll be your getaway driver". She then drives me to the credit union and waits for me while I go inside, pull out a pistol, and demand an employee open the safe. The employee tells me he cannot open the safe because he doesn't have the necessary code. So I shoot him (he survives, it's just a flesh wound). I return to the car and tell my wife what happened, whereupon she scolds me for my idiocy and tells me, "I never intended for anyone to get hurt".
Under these facts I am guilty of, at least, robbery and assault with a firearm. My wife is also guilty of robbery and assault with a firearm. The robbery was the target crime and the firearm assault was a "natural and probable consequence" of the robbery.
There is one recent limitation on the "natural and probable consequence" doctrine. In Chiu, the California Supreme Court held that "natural and probable consequence" cannot be used to impose liability for premeditated first-degree murder (other forms of murder are okay).
Now we turn to "transferred intent". Premeditated first degree murder, under facts such as these, require an intent to kill the victim. But what if you shoot at the person you want to kill, miss him, and hit a person standing close by, killing that person? You didn't intend to kill the bystander, so does that not mean you are not guilty of premeditated first degree murder? No. The law uses the principle of "transferred intent" to impute to you the intent to kill the bystander.
Here, Bryant intended for Vasquez to kill Duncan and then help Vasquez escape from the scene. We'll assume Bryant had no intent to kill Duncan's girlfriend, Horton. Vasquez ends up killing Horton who is caught in the crossfire. Can Bryant be convicted of the premeditated first degree murder of Horton? Yes, says the opinion. And as the law stands now, it is correct. The target crime was murder, the crime Bryant intended and helped Vasquez to commit. The natural and probable doctrine has no application here. Bryant tries, admirably, to argue that the murder of Duncan was the target crime and the extra "natural and probable" crime was the murder of Horton. But as it is the target crime's intent which is transferred, the murder of Horton becomes the target crime.
P v. Alvarez (3rd Dist.) An Arrest Legal at Its Inception Mutates Into Kidnapping During a Detour to Sexually Assault the Arrested Person
West Sacramento Police Officer Sergio Alvarez often encountered prostitutes within his area of patrol. On several occasions he arrested or threatened to arrest women unless they could "do something for him". "Something" was a euphemism for "services on the house", which in turn is a euphemism for rape and forced oral copulation. Eventually one of the women came forward and a subsequent investigation identified more women Alvarez had assaulted.
Following a jury trial Alvarez was convicted of at least 18 criminal counts and received a sentence of 205 years to life. He appealed.
The Third District reverses a few counts and stays the sentences on two counts, but affirms the balance of the judgment.
The published portion of the opinion deals with Alvarez's attacks on the kidnapping counts and enhancements. Kidnapping is the use of force or fear to move someone against their will. It is not kidnapping if the person consents to the movement, even if her consent is a result of fraud or false promises. If I get into my neighbor's car after he asks me if I'd like a ride to work, I have not been kidnapped, even if my neighbor has no intent of taking me to work and instead plans to drive me to a remote place to leave me to walk home as revenge for letting my yard fall into disrepair. But, once I realize his plan and ask him to stop the car and let me out, if he does not let me out and instead continues driving, his actions morph into a kidnapping.
There is also a kidnapping defense of lawful arrest. Arresting a suspect, handcuffing him, putting him the backseat of your patrol car and driving to the local jail, is not kidnapping, although it satisfies the definition (using force to move a person against his will). As long as the officer is acting under his legal authority to arrest, there is no kidnapping.
Alvarez argues, depending on the specific count, that the victims either got into his car voluntarily or were in his car as a result of a legal arrest. As to one count the panel agrees. On this occasion, the victim got into Alvarez's car as the result of his promise to take her home and did not protest when he drove her to an alley.
The "lawful arrest" argument doesn't get much traction. While Alvarez argues that a "lawful arrest" makes him immune from being convicted for kidnapping or any lesser offense, the panel makes quick work of such nonsense. Giving Alvarez the benefit of the doubt that some of the victims were subject to lawful arrest, Alvarez lost any immunity the second he ceased "acting pursuant" to his legal authority to transport a suspect to the jail and instead drove to a vacant alley to sexually assault his charge. Additionally, the panel notes that an arrest is not legal if it is made in a manner unauthorized by law. Despite Alvarez's pleas otherwise, the law does not authorize extended periods of pawing at a suspect's crotch as part of an arrest for being under the influence.
The net effect of the opinion, if my calculations are correct, is if Alvarez can hold on for 89 more years, he may get a shot at parole.
Following a jury trial Alvarez was convicted of at least 18 criminal counts and received a sentence of 205 years to life. He appealed.
The Third District reverses a few counts and stays the sentences on two counts, but affirms the balance of the judgment.
The published portion of the opinion deals with Alvarez's attacks on the kidnapping counts and enhancements. Kidnapping is the use of force or fear to move someone against their will. It is not kidnapping if the person consents to the movement, even if her consent is a result of fraud or false promises. If I get into my neighbor's car after he asks me if I'd like a ride to work, I have not been kidnapped, even if my neighbor has no intent of taking me to work and instead plans to drive me to a remote place to leave me to walk home as revenge for letting my yard fall into disrepair. But, once I realize his plan and ask him to stop the car and let me out, if he does not let me out and instead continues driving, his actions morph into a kidnapping.
There is also a kidnapping defense of lawful arrest. Arresting a suspect, handcuffing him, putting him the backseat of your patrol car and driving to the local jail, is not kidnapping, although it satisfies the definition (using force to move a person against his will). As long as the officer is acting under his legal authority to arrest, there is no kidnapping.
Alvarez argues, depending on the specific count, that the victims either got into his car voluntarily or were in his car as a result of a legal arrest. As to one count the panel agrees. On this occasion, the victim got into Alvarez's car as the result of his promise to take her home and did not protest when he drove her to an alley.
The "lawful arrest" argument doesn't get much traction. While Alvarez argues that a "lawful arrest" makes him immune from being convicted for kidnapping or any lesser offense, the panel makes quick work of such nonsense. Giving Alvarez the benefit of the doubt that some of the victims were subject to lawful arrest, Alvarez lost any immunity the second he ceased "acting pursuant" to his legal authority to transport a suspect to the jail and instead drove to a vacant alley to sexually assault his charge. Additionally, the panel notes that an arrest is not legal if it is made in a manner unauthorized by law. Despite Alvarez's pleas otherwise, the law does not authorize extended periods of pawing at a suspect's crotch as part of an arrest for being under the influence.
The net effect of the opinion, if my calculations are correct, is if Alvarez can hold on for 89 more years, he may get a shot at parole.
Wednesday, April 27, 2016
P v. Townsel (Cal. Supreme Ct.) One of Two Special Circumstances Reversed for Instructional Error; Death Verdict Affirmed
Mr. Townsel stalked his estranged pregnant girlfriend eventually killing her and her brother-in-law. Townsel admitted the killings and stated he "wasn't done yet" during his arrest. While cuffed and on the ground, the told a witness to "shut up" or "he'll get it too." He was charged with, among other crimes, two murders, plus the special circumstances of multiple-murders and murdering a witness, along with the crime of dissuading a witness. A jury found him guilty of all the aforementioned crimes and found true both special circumstances. The result was a verdict of death from which Townsel appealed.
The California Supreme Court affirms the death verdict, but reverses the dissuasion count and the witness murder special circumstance.
As in all death appeals, the condemned (understandably) launches everything that even resembles a legal projectile. His most potent grounds involve expert witnesses and mental health issues. Prior to trial, Townsel's lawyer told the judge he doubted Townsel was competent to stand trial. The judge appointed two psychiatrists to evaluate Townsel. Both thought Townsel was faking it, but they differed over whether he was competent. The parties submitted the competence issue upon the written reports of the psychiatrists and the judge found Townsel was competent.
During the trial, Townsel called one Dr. Christensen, who had evaluated Townsel some 18 months earlier. Dr. Christensen measured Townsel's IQ at 47, believed him to be developmentally delayed (the PC term for mental retardation), and thought he was incompetent.
Townsel argued that upon hearing Dr. Christensen's testimony, the trial judge was in possession of evidence sufficient to require the judge to declare a doubt as to Townsel's competence and order a PC 11370.1 evaluation. The Court disagrees after reviewing the circumstances of Dr. Christensen's testing (including that it was performed 18 months prior) and comparing the results to that obtained by other mental health professionals.
While instructing the jury, the judge said that the mental health evidence concerning mental retardation could only be considered for purposes of the murder charge. This was wrong; mental retardation may also be considered for evaluating whether a defendant had the required specific intent as to other crimes and enhancements. Because the jury was given erroneous instructions that it could not consider Townsel's mental retardation in evaluating the dissuading count and the witness-killing special circumstance, that count and finding are reversed.
However, the multiple-murder special circumstance is affirmed as is the verdict of death.
The California Supreme Court affirms the death verdict, but reverses the dissuasion count and the witness murder special circumstance.
As in all death appeals, the condemned (understandably) launches everything that even resembles a legal projectile. His most potent grounds involve expert witnesses and mental health issues. Prior to trial, Townsel's lawyer told the judge he doubted Townsel was competent to stand trial. The judge appointed two psychiatrists to evaluate Townsel. Both thought Townsel was faking it, but they differed over whether he was competent. The parties submitted the competence issue upon the written reports of the psychiatrists and the judge found Townsel was competent.
During the trial, Townsel called one Dr. Christensen, who had evaluated Townsel some 18 months earlier. Dr. Christensen measured Townsel's IQ at 47, believed him to be developmentally delayed (the PC term for mental retardation), and thought he was incompetent.
Townsel argued that upon hearing Dr. Christensen's testimony, the trial judge was in possession of evidence sufficient to require the judge to declare a doubt as to Townsel's competence and order a PC 11370.1 evaluation. The Court disagrees after reviewing the circumstances of Dr. Christensen's testing (including that it was performed 18 months prior) and comparing the results to that obtained by other mental health professionals.
While instructing the jury, the judge said that the mental health evidence concerning mental retardation could only be considered for purposes of the murder charge. This was wrong; mental retardation may also be considered for evaluating whether a defendant had the required specific intent as to other crimes and enhancements. Because the jury was given erroneous instructions that it could not consider Townsel's mental retardation in evaluating the dissuading count and the witness-killing special circumstance, that count and finding are reversed.
However, the multiple-murder special circumstance is affirmed as is the verdict of death.
Tuesday, April 26, 2016
P v. Caraballo (4th Dist., Div.3) PC 1170.126 Prohibition For Defendants "Armed with a Firearm" Includes Vicarious Liability Stated in PC 12022(a)(1)
Mr. Caraballo and a codefendant walked into a bank and stood around for about 15 minutes before leaving. Outside, the codefendant saw some policemen (responding to a call of two suspicious guys in a bank) and took off running, ditching a gun in a dumpster.
A jury convicted Caraballo of commercial burglary and found true an enhancement pursuant to PC 12022(a), which states in pertinent part;
With this, the opinion declares the phrase "armed with a firearm" ambiguous and begins to dig through Proposition 47 ballot materials. Within the materials are statements assuring voters that release would be denied to defendants whose crimes “‘involved firearm possession’” or were “‘gun related’”
felonies. With these in hand, the opinion calls it day and holds that the 12022(a)(1) vicarious liability language applies to 667(e)(2)(C)(iii).
The opinion attempts to make its holding convincing by using selective omission to create a specious sense that overwhelming authority supports its argument. The major first omission is that 12022(a)(1) previously used the language in 667(e)(2)(C)(iii) "armed with a firearm", without the additional language expressly including vicarious liability. This previous version was found by the California Supreme Court to only apply when a defendant was "personally armed with a firearm". Walker, 18 Cal 3d 232. The Walker court announced the general rule that before it would impose vicarious liability, it needed some clear legislative directive. After Walker, the legislature amended 12022(a) to add the final sentence which clearly states its intent to impose vicarious liability. If the lawmakers wanted section 667(e)(2)(C)(iii)'s arming exclusion to include vicarious liability, why didn't they just use the language of the amended 12022(a)(1)? If the lawmakers instead chose language from the previous 12022(a), which everyone knew from Walker doesn't include vicarious liability, does that not evince an intent to exclude vicarious liability from section 667(e)(2)(C)(iii)'s disqualification? The opinion states, with emphasis added, that 12022 "expressly includes vicarious liability", but that actually hurts their argument when section 667(e)(2)(C)(iii) doesn't.
The second important omission occurs when the panel focuses on 12022(a)(1) and fails to mention that other sections of the penal code include the words "armed with a firearm" and have been interpreted to require a defendant personally be armed. PC 12022.3 enhances certain sex crimes when the defendant is "armed with a firearm" and has been interpreted in P v. Renner (1994) 24 Cal App 4th, 258, to require personally arming. PC 1203.06, regarding probation decisions, defines "armed with a firearm" to require personal arming.
While this opinion may (not) have gotten the correct result, the paucity of meaningful analysis makes it terribly difficult to conclude which it is.
A jury convicted Caraballo of commercial burglary and found true an enhancement pursuant to PC 12022(a), which states in pertinent part;
a person who is armed with a firearm . . . shall be punished by an additional and consecutive term of . . . one year[.] This additional term shall apply to a person who is a principal in the commission of a felony or attempted felony if one or more of the principals is armed with a firearm, whether or not the person is personally armed with a firearm.
It was the early 2000s and Caraballo had two strikes, which meant he was sentenced to 25-life under the previous "two strikes and any felony" law. Following the 2012 passage of Proposition 36, Caraballo petitioned for resentencing pursuant to PC 1170.126. The trial court denied the petition, finding that Caraballo was not eligible under subsection (e)(2), via PC 667(e)(2)(C)(iii), which prohibits resentencing if "[d]uring the commission of the current offense, the defendant . . . was armed with a firearm."
Caraballo appealed, arguing that, as the phrase is meant in 667(e)(2)(C)(iii), he was not armed with a firearm. The Fourth District affirms.
The opinion does a decent job of framing the issue of statutory interpretation. The actual interpretation leaves a lot to be desired, regardless of your feelings on the outcome.
The question is what was intended by the law makers when they passed the language, "was armed with a firearm". The ordinary, conversational, meaning of that phrase is that the defendant was carrying a gun or had it nearby available for ready use. But, PC 12022(a) expressly states that a principal to a crime is to receive the enhancement for being "armed with a firearm" even if they weren't personally armed as long as another principal was personally armed.
The opinion attempts to make its holding convincing by using selective omission to create a specious sense that overwhelming authority supports its argument. The major first omission is that 12022(a)(1) previously used the language in 667(e)(2)(C)(iii) "armed with a firearm", without the additional language expressly including vicarious liability. This previous version was found by the California Supreme Court to only apply when a defendant was "personally armed with a firearm". Walker, 18 Cal 3d 232. The Walker court announced the general rule that before it would impose vicarious liability, it needed some clear legislative directive. After Walker, the legislature amended 12022(a) to add the final sentence which clearly states its intent to impose vicarious liability. If the lawmakers wanted section 667(e)(2)(C)(iii)'s arming exclusion to include vicarious liability, why didn't they just use the language of the amended 12022(a)(1)? If the lawmakers instead chose language from the previous 12022(a), which everyone knew from Walker doesn't include vicarious liability, does that not evince an intent to exclude vicarious liability from section 667(e)(2)(C)(iii)'s disqualification? The opinion states, with emphasis added, that 12022 "expressly includes vicarious liability", but that actually hurts their argument when section 667(e)(2)(C)(iii) doesn't.
The second important omission occurs when the panel focuses on 12022(a)(1) and fails to mention that other sections of the penal code include the words "armed with a firearm" and have been interpreted to require a defendant personally be armed. PC 12022.3 enhances certain sex crimes when the defendant is "armed with a firearm" and has been interpreted in P v. Renner (1994) 24 Cal App 4th, 258, to require personally arming. PC 1203.06, regarding probation decisions, defines "armed with a firearm" to require personal arming.
While this opinion may (not) have gotten the correct result, the paucity of meaningful analysis makes it terribly difficult to conclude which it is.
P v. Landau (4th Dist., Div.3) Jury Verdict in SVP Trial Reversed for Erroneous Admission of Hearsay
Mr. Landau was civilly committed under California's Sexually Violent Predator (SVP) law. Following a favorable review, Landau petitioned for unconditional (and conditional) release. The trial court held a probable cause hearing regarding the petition and found that Landau was entitled to a jury trial on his release petition.
At the jury trial, the prosecution chiefly relied upon the testimony of its expert, a forensic psychiatrist (who was paid 90K for his services according to the opinion). During his testimony, the psychiatrist gave detailed recitations of Landau's hospital records and chart entries by other physicians. Following the psychiatrist's testimony, the state called Landau to the stand and questioned him as part of its case in chief.
The jury found that Landau remained a danger to the health and safety of others and was likely to engage in sexually violent behavior if discharged. Landau appealed.
The Fourth District reverses in a comprehensive opinion that, while thoroughly analyzing the issues presented, functions as an excellent primer on SVP proceedings.
The initial issue is whether Landau was denied equal protection under the law when he was forced to testify in the state's case in chief. An analogous issue within the context of Mentally Disordered Offender (MDO) proceedings was recently addressed by the Fourth District in People v. Dunley. While SVP proceedings are not criminal and are not required to include a right not to give evidence against oneself, they are substantially similar to NGI commitment proceedings, which include a statutory right coextensive with the U.S. Constitution's right against self incrimination. Being substantially similar, disparate treatment within the two proceedings must be justified by the state under the applicable standard of review. Because the state did not advance an argument in the appeal, the panel instructs the trial court, upon remand, to allow the state a chance to justify the different treatment prior to ruling on whether the state, at any retrial, may force the Landau to give testimony on behalf of the state.
The main issue is then addressed; whether the court erred in permitting the state's expert from testifying extensively as to hearsay, specifically facts within hospital reports and medical charts of which the expert had no personal knowledge. The state argued that the hearsay was not offered for its truth, but as a basis for the experts opinion. In response, the panel examines the U.S. Supreme Court's opinion in Williams v. Illinois, a case in which a majority of the Court determined that hearsay evidence introduced for the purpose of explaining an expert's opinion is in fact offered for the truth. The panel concludes the hearsay here was offered for its truth and proceeds to examine the contested statements in detail.
In the end, the panel concludes that the hearsay contained in hospital and medical records was admitted in error and was prejudicial, requiring reversal.
Finally, the issue of whether the jury should have been instructed on both conditional release and unconditional release is resolved. The panel determines as Landau's petition included both requests for unconditional and conditional release, the jury should have been instructed as to both and the trial court is instructed to do so on remand.
The jury found that Landau remained a danger to the health and safety of others and was likely to engage in sexually violent behavior if discharged. Landau appealed.
The Fourth District reverses in a comprehensive opinion that, while thoroughly analyzing the issues presented, functions as an excellent primer on SVP proceedings.
The initial issue is whether Landau was denied equal protection under the law when he was forced to testify in the state's case in chief. An analogous issue within the context of Mentally Disordered Offender (MDO) proceedings was recently addressed by the Fourth District in People v. Dunley. While SVP proceedings are not criminal and are not required to include a right not to give evidence against oneself, they are substantially similar to NGI commitment proceedings, which include a statutory right coextensive with the U.S. Constitution's right against self incrimination. Being substantially similar, disparate treatment within the two proceedings must be justified by the state under the applicable standard of review. Because the state did not advance an argument in the appeal, the panel instructs the trial court, upon remand, to allow the state a chance to justify the different treatment prior to ruling on whether the state, at any retrial, may force the Landau to give testimony on behalf of the state.
The main issue is then addressed; whether the court erred in permitting the state's expert from testifying extensively as to hearsay, specifically facts within hospital reports and medical charts of which the expert had no personal knowledge. The state argued that the hearsay was not offered for its truth, but as a basis for the experts opinion. In response, the panel examines the U.S. Supreme Court's opinion in Williams v. Illinois, a case in which a majority of the Court determined that hearsay evidence introduced for the purpose of explaining an expert's opinion is in fact offered for the truth. The panel concludes the hearsay here was offered for its truth and proceeds to examine the contested statements in detail.
In the end, the panel concludes that the hearsay contained in hospital and medical records was admitted in error and was prejudicial, requiring reversal.
Finally, the issue of whether the jury should have been instructed on both conditional release and unconditional release is resolved. The panel determines as Landau's petition included both requests for unconditional and conditional release, the jury should have been instructed as to both and the trial court is instructed to do so on remand.
Sunday, April 24, 2016
P v. Nicholes (3rd Dist.) Gang Enhancement Reversed After Evidence Fails to Satisfy the Prunty Test.
Mr. Nicholes was part of a dance floor argument that spilled into the parking lot. At trial witnesses gave differing accounts of the events, but basically agreed that there was a lot of talk about "who was going to whoop whose ass" and that the "ass whooping" talk terminated when Nicholes fired his gun several times, hitting two people.
A jury convicted Nicholes of attempted voluntary manslaughter and assault with a firearm along with enhancements for personally using a firearm and for committing the crime to benefit a criminal street gang. Nicholes appealed.
The issue is whether the state satisfied the Prunty test. Under Prunty, when the state seeks to prosecute a gang crime (or enhancement) under a theory of a single gang (here the Nortenos) which consists of one or more subsets, it must show evidence or association or organizational connection between the subsets.
Here, the state's expert, a Yuba policeman opined that Nicholes was a member of the Oak Park Nortenos from Sacramento. He testified there were other Norteno subsets in the area: the Yuba City Nortenos, Vario Live Oak Nortenos and East Morez Nortenos. In proving up the existence of the umbrella Norteno gang, the expert opined there were 250 Nortenos in Sutter County and that the primary activities of the local Nortenos met the statutory definition of a criminal street gang. The state then proved the required predicate offenses using convictions of members of the Norteno criminal street gang.
What the panel finds lacking is any sufficient evidence that the Oak Park Nortenos had an active association with the larger Norteno umbrella or that there was some organizational connection between the subsets.
The result is Nichole gets seven years and eight months lopped off his sentence. Instead of 17 years, he now only has to serve nine years, four months.
Friday, April 22, 2016
P v. Reid (5th Dist.) Modern Day Grave-robbing, HS 7052(a), Isn't Analogous to Theft and the Bailey Rule Is Inapplicable
Mr. Reid smashed the glass frames of nine mausoleum niches and took the urns contained within. Within the nine urns were the cremated remains of eleven human beings. Reid stashed the urns outside until he could return with a van to retrieve them. Then he dumped the human remains, melted down the urns, and sold the metal for scrap.
For this, Reid was charged and convicted of, along with other crimes, 11 counts of violating Health and Safety Code section 7052(a), which states in pertinent part:
The Fifth District affirms that Reid's actions constituted 11 separate 7052(a) violations, but conditionally reverses the judgment based on an erroneous denial of Reid's Pitchess motion and remands the matter for the trial court to review the personnel file of the policeman identified in Reid's motion.
The issue of whether conduct amounts to one or several crimes is a thorny issue. If I walk into my local bodega and nick three bottles of Pepsi, have I committed one or three counts of petty theft? If within the bodega there is a separate counter and register where a lady (not a bodega employee) sells homemade tamales and after I steal the three bottles of Pepsi from the cooler, I walk over to the tamale counter and steal three tamales, have I committed one, two, or six thefts? It is not always a simple question.
To answer the question in cases involving theft, the California Supreme Court has given us the Bailey rule which describes a single offense as being "pursuant to one intention, one general impulse, and one plan" in contrast to separate offenses which evince "separate and distinct intents". Not the clearest rule, but better than nothing.
Reid argues that his section 7052(a) crimes are analogous to theft and thus are subject to the "one intention-one impulse-one plan" rule and that his removal of the nine urns falls within the rule, as if Reid had gone into our bodega and stolen nine bottles of pop.
The panel rejects Reid's analogy for two reasons. First, human remains are not property in the ordinary legal sense. Second, the moral underpinnings of 7052(a) are different from theft, says the panel. The prohibition against removing human remains is not based upon economic efficiency, rather it is based upon public health considerations and the emotional, religious, and aesthetic interests of the survivors. The result is that Reid's behavior constituted 11 violations, not one.
For this, Reid was charged and convicted of, along with other crimes, 11 counts of violating Health and Safety Code section 7052(a), which states in pertinent part:
Every person who willfully … disinters [or] removes from the place of interment … any remains known to be human, without authority of law, is guilty of a felony.Reid appealed his convictions, arguing that his actions only constituted one violation of 7052(a), not 11. He also appealed the trial court's summary denial of a Pitchess motion.
The Fifth District affirms that Reid's actions constituted 11 separate 7052(a) violations, but conditionally reverses the judgment based on an erroneous denial of Reid's Pitchess motion and remands the matter for the trial court to review the personnel file of the policeman identified in Reid's motion.
The issue of whether conduct amounts to one or several crimes is a thorny issue. If I walk into my local bodega and nick three bottles of Pepsi, have I committed one or three counts of petty theft? If within the bodega there is a separate counter and register where a lady (not a bodega employee) sells homemade tamales and after I steal the three bottles of Pepsi from the cooler, I walk over to the tamale counter and steal three tamales, have I committed one, two, or six thefts? It is not always a simple question.
To answer the question in cases involving theft, the California Supreme Court has given us the Bailey rule which describes a single offense as being "pursuant to one intention, one general impulse, and one plan" in contrast to separate offenses which evince "separate and distinct intents". Not the clearest rule, but better than nothing.
Reid argues that his section 7052(a) crimes are analogous to theft and thus are subject to the "one intention-one impulse-one plan" rule and that his removal of the nine urns falls within the rule, as if Reid had gone into our bodega and stolen nine bottles of pop.
The panel rejects Reid's analogy for two reasons. First, human remains are not property in the ordinary legal sense. Second, the moral underpinnings of 7052(a) are different from theft, says the panel. The prohibition against removing human remains is not based upon economic efficiency, rather it is based upon public health considerations and the emotional, religious, and aesthetic interests of the survivors. The result is that Reid's behavior constituted 11 violations, not one.
Thursday, April 21, 2016
P v. Lucero (4th Dist., Div.1) PC 12022.53(c),(d) Enhancements Require Only General Intent
Mr. Lucero, while on a meth bender, pulled a gun on an acquaintance, Mr. Silveira, and demanded Silveira open the trunk to his car, which Lucero knew contained over 18K in cash. Silveira refused and gunned his car to get away. Lucero then blasted away at the car, killing Silveira.
Lucero was convicted for felony murder and firearm enhancements under PC 12022.53(c) and (d). Lucero appealed his convictions and the Fourth District affirms.
While the opinion is lengthy, only a small portion of it is published. The issue decided in the published portion is a narrow one; do the 12022.53 enhancements require a specific intent or a general intent. Lucero argues that the trial court erred in not giving a voluntary intoxication instruction as to the 12022.53 enhancements. Since voluntary intoxication may be used to consider whether a person formed a specific intent, if the enhancements require a specific intent, Lucero has something to argue. However, since voluntary intoxication may not be considered in a determination of general intent, if the enhancements are ones of general intent, Lucero's argument is foreclosed.
The 12022.53 enhancements at issue require a person, "personally and intentionally discharges a firearm", sub(c), and "personally and intentionally discharges a firearm and causes . . . death to any other person other than an accomplice[]", sub(d).
The general rule is that when an enhancement mentions only an act, it is one of general intent. But if an enhancement describes an act along with an intent to do a further act or achieve some specific consequence(s), it is one of specific intent. Here the panel finds the 12022.53 enhancement at issue merely describe acts. Thus they require general intent.
And since voluntary intoxication may not be considered in determining whether a person formed a general intent, Lucero loses the issue.
Lucero was convicted for felony murder and firearm enhancements under PC 12022.53(c) and (d). Lucero appealed his convictions and the Fourth District affirms.
While the opinion is lengthy, only a small portion of it is published. The issue decided in the published portion is a narrow one; do the 12022.53 enhancements require a specific intent or a general intent. Lucero argues that the trial court erred in not giving a voluntary intoxication instruction as to the 12022.53 enhancements. Since voluntary intoxication may be used to consider whether a person formed a specific intent, if the enhancements require a specific intent, Lucero has something to argue. However, since voluntary intoxication may not be considered in a determination of general intent, if the enhancements are ones of general intent, Lucero's argument is foreclosed.
The 12022.53 enhancements at issue require a person, "personally and intentionally discharges a firearm", sub(c), and "personally and intentionally discharges a firearm and causes . . . death to any other person other than an accomplice[]", sub(d).
The general rule is that when an enhancement mentions only an act, it is one of general intent. But if an enhancement describes an act along with an intent to do a further act or achieve some specific consequence(s), it is one of specific intent. Here the panel finds the 12022.53 enhancement at issue merely describe acts. Thus they require general intent.
And since voluntary intoxication may not be considered in determining whether a person formed a general intent, Lucero loses the issue.
P v. Jimenez (3rd Dist.) Antique Jury Instruction Held to Still Be Valid
This opinion proves California does not believe its citizens subscribe to Thumper the rabbit's admonishment that "if you don't have something nice to say, don't say anything." Rather the courts have decided we instead follow the aphorism "If all you have are nice things to say, don't say anything."
Mr. Jimenez was accused of raping his niece, Jane Doe. At Jimenez's trial, another family member, one Mr. Hoffman, was asked whether he had ever talked to anyone about Doe's character for telling the truth. Hoffman said, "no, never".
As part of his defense, Jimenez called Doe's mother and Doe's friend as witnesses. The friend testified that Doe's reputation within the family was that of a liar. Doe's mother testified that it was difficult for Doe to tell the truth.
At the close of evidence, the trial court instructed the jury, including CalCrim 105, which states:
The Thrid District affirms.
The jury instruction has its origin in a case from 1902, is based on what the court terms "common sense", and retains its legality in modernity. Jimenez argues that the case law actually holds that the instruction is only applicable when there is first evidence of good character, then followed by evidence that the witness' reputation for bad character was never discussed. The panel disagrees. Finally Jimenez makes an argument to which the panel's response is unsatisfying. Jimenez points out that the condition precedent for the instruction is "the evidence establishes that a witness' character for truthfulness has not been discussed among the people who know him or her," And did the evidence really establish this? It doesn't seem so since Doe's friend testified she had heard from Doe's family members that Doe was a liar. Hoffman's testimony established that he had not discussed Doe's character with family members. But in the face of Mom's and friend's testimony, did Hoffman really establish that Doe's reputation has not been discussed among those who know her? Either Jimenez didn't frame his argument in this fashion, or the panel had no answer and omitted any discussion of the issue because it conflicted with the desired outcome.
Mr. Jimenez was accused of raping his niece, Jane Doe. At Jimenez's trial, another family member, one Mr. Hoffman, was asked whether he had ever talked to anyone about Doe's character for telling the truth. Hoffman said, "no, never".
As part of his defense, Jimenez called Doe's mother and Doe's friend as witnesses. The friend testified that Doe's reputation within the family was that of a liar. Doe's mother testified that it was difficult for Doe to tell the truth.
At the close of evidence, the trial court instructed the jury, including CalCrim 105, which states:
[i]f the evidence establishes that a witness’s character for truthfulness has not been discussed among the people who know him or her, you may conclude from the lack of discussion that the witness’s character for truthfulness is good.The jury convicted Jimenez and he appealed, arguing that giving CalCrim 105 required reversal.
The Thrid District affirms.
The jury instruction has its origin in a case from 1902, is based on what the court terms "common sense", and retains its legality in modernity. Jimenez argues that the case law actually holds that the instruction is only applicable when there is first evidence of good character, then followed by evidence that the witness' reputation for bad character was never discussed. The panel disagrees. Finally Jimenez makes an argument to which the panel's response is unsatisfying. Jimenez points out that the condition precedent for the instruction is "the evidence establishes that a witness' character for truthfulness has not been discussed among the people who know him or her," And did the evidence really establish this? It doesn't seem so since Doe's friend testified she had heard from Doe's family members that Doe was a liar. Hoffman's testimony established that he had not discussed Doe's character with family members. But in the face of Mom's and friend's testimony, did Hoffman really establish that Doe's reputation has not been discussed among those who know her? Either Jimenez didn't frame his argument in this fashion, or the panel had no answer and omitted any discussion of the issue because it conflicted with the desired outcome.
Wednesday, April 20, 2016
P v. Abdallah (2nd. Dist., Div.7) Prior Pen. C 1170.18 Relief Ablutes a PC 667.5(b) Sentencing Enhancement
This opinion provides an answer to the question of whether relief pursuant to Pen. C. 1170.18 has a detersive effect for purposes of Pen. C 667.5(b) when the relief precedes a felony sentence.
Mr. Abdallah was convicted of a felony DUI in 2002, went to prison, and discharged parole in 2005. In 2009, Abdallah was arrested for felony possession of methamphetamine, HS 11377(a), and later convicted of same in 2011. Abdallah did not go to prison for this 2011 felony. Comes March 2014, and Abdallah is charged with having a gun while in possession of methamphetamine. June of 2014, a jury convicted Abdallah of this charge. November 5, 2014, Proposition 47 went into effect, making HS 11377(a) a misdemeanor, and providing a vehicle for persons previously convicted of felony 11377(a) to return to court and have their offenses reduced to misdemeanors. December 19, 2014, Abdallah was sentenced on the June gun/meth verdict. Prior (this is important, as we'll see) to pronouncing sentence in the gun/meth case, the trial court granted Abdallah's 1170.18 petition as to his 2011 felony 11377(a) conviction, declaring it a misdemeanor. Following the 1170.18 order, the trial court sentenced Abdallah to five years in the gun/meth case, consisting of two years on the gun/meth charge, doubled to four years due to Abdallah's prior "strike" conviction, plus one additional year under PC 667.5(b for Abdallah's 2002 prison term. Abdallah appealed the one year prior prison term.
The Second District reverses.
The issue concerns the intersection of two statutes. The first is Penal Code section 667.5(b) which adds one year to a prison sentence if the following is true.
The opinion follows the analysis in Ruff and Williams, analogizing 1170.18 to PC 17, another statute by which a felony may be reduced to a misdemeanor. Those cases found that "for all purposes" means "for all purposes after the 1170.18 relief is ordered". The reason why Abdallah wins (Ruff and Williams lost) is timing. While in Ruff and Williams, the misdemeanor reduction occurred after the 667.5(b) enhancement had been imposed as part of a subsequent felony sentence, here the reduction occurred before the subsequent sentence. Thus at the time Abdallah was sentenced for his gun/meth case, his 2009 meth conviction had not resulted in a felony conviction. Had the trial judge sentenced Abdallah before addressing the 1170.18 petition, it appears the enhancement would have been just fine.
You could say, "a switch in time, saved 365."
Mr. Abdallah was convicted of a felony DUI in 2002, went to prison, and discharged parole in 2005. In 2009, Abdallah was arrested for felony possession of methamphetamine, HS 11377(a), and later convicted of same in 2011. Abdallah did not go to prison for this 2011 felony. Comes March 2014, and Abdallah is charged with having a gun while in possession of methamphetamine. June of 2014, a jury convicted Abdallah of this charge. November 5, 2014, Proposition 47 went into effect, making HS 11377(a) a misdemeanor, and providing a vehicle for persons previously convicted of felony 11377(a) to return to court and have their offenses reduced to misdemeanors. December 19, 2014, Abdallah was sentenced on the June gun/meth verdict. Prior (this is important, as we'll see) to pronouncing sentence in the gun/meth case, the trial court granted Abdallah's 1170.18 petition as to his 2011 felony 11377(a) conviction, declaring it a misdemeanor. Following the 1170.18 order, the trial court sentenced Abdallah to five years in the gun/meth case, consisting of two years on the gun/meth charge, doubled to four years due to Abdallah's prior "strike" conviction, plus one additional year under PC 667.5(b for Abdallah's 2002 prison term. Abdallah appealed the one year prior prison term.
The Second District reverses.
The issue concerns the intersection of two statutes. The first is Penal Code section 667.5(b) which adds one year to a prison sentence if the following is true.
The defendant (1) was previously convicted of a felony; (2) was imprisoned as a result of that conviction; (3) completed that term of imprisonment; and (4) did not remain free for five years of both prison custody and the commission of a new offense resulting in a felony conviction.’The second statute is Penal Code section 1170.18 which states that, with an exception inapplicable here, a felony conviction which is recalled and resentenced as a misdemeanor is "a misdemeanor for all purposes". The question then becomes, does the phrase "for all purposes" include, for a subsequent felony sentence, element (4) in PC 667.5(b). The panel holds it does, meaning element (4) of 667.5(b) is missing and thus Abdallah's sentence must be reduced by one year.
The opinion follows the analysis in Ruff and Williams, analogizing 1170.18 to PC 17, another statute by which a felony may be reduced to a misdemeanor. Those cases found that "for all purposes" means "for all purposes after the 1170.18 relief is ordered". The reason why Abdallah wins (Ruff and Williams lost) is timing. While in Ruff and Williams, the misdemeanor reduction occurred after the 667.5(b) enhancement had been imposed as part of a subsequent felony sentence, here the reduction occurred before the subsequent sentence. Thus at the time Abdallah was sentenced for his gun/meth case, his 2009 meth conviction had not resulted in a felony conviction. Had the trial judge sentenced Abdallah before addressing the 1170.18 petition, it appears the enhancement would have been just fine.
You could say, "a switch in time, saved 365."
Monday, April 18, 2016
P v. Dunley (4th Dist., Div.2) Defendants in MDO Proceedings May Not Be Compelled to Testify.
Mr. Dunley was an ill man. Due to various diseases he thought himself the flesh of God. Following the completion of his criminal sentence, he was repeatedly civilly committed as a mentally disordered offender (MDO). During his commitment extension trial in 2014, he was called as a prosecution witness and admitted, after many confused and non-responsive answers, that he was mentally ill and dangerous. He appealed.
California has at least three proceedings by which people who suffer from mental diseases may be locked up in mental hospitals (or euphemistically, "subject to a civil commitment"). These three proceedings are for persons found not guilty by reason of insanity (NGI), persons deemed to be sexually violent predators (SVP), and, like Dunley, mentally disordered offenders (MDO).
Despite carrying the possibility of a lifetime behind locked doors, none of these three is criminal in nature. Rather they are civil proceedings established for purposes other than punishment. As they are not criminal, there is no Fifth Amendment right against self incrimination. The rub is that California statutory law confers to NGI defendants the right against compelled self incrimination. Dunley argues that MDO defendants are similarly situated to NGI defendants and that the different treatment is not justified.
A Fourth District panel agrees with Dunley.
The analysis is clear and linear. Precedent holds that SVP defendants are similarly situated to NGI defendants, meaning SVP defendants have a right against self incrimination. Another line of cases holds that MDO defendants are similar to SVP defendants. The transitive property then means that MDO defendants are similarly situated to NGI defendants.
This being established, the issue shifts to whether California's different treatment of NGI defendants and MDO defendants can survive a strict scrutiny analysis. Surprisingly, the AG doesn't even try to justify the different treatment. The panel does take pity on the state however and states they are not foreclosed from making such arguments in the future.
California has at least three proceedings by which people who suffer from mental diseases may be locked up in mental hospitals (or euphemistically, "subject to a civil commitment"). These three proceedings are for persons found not guilty by reason of insanity (NGI), persons deemed to be sexually violent predators (SVP), and, like Dunley, mentally disordered offenders (MDO).
Despite carrying the possibility of a lifetime behind locked doors, none of these three is criminal in nature. Rather they are civil proceedings established for purposes other than punishment. As they are not criminal, there is no Fifth Amendment right against self incrimination. The rub is that California statutory law confers to NGI defendants the right against compelled self incrimination. Dunley argues that MDO defendants are similarly situated to NGI defendants and that the different treatment is not justified.
A Fourth District panel agrees with Dunley.
The analysis is clear and linear. Precedent holds that SVP defendants are similarly situated to NGI defendants, meaning SVP defendants have a right against self incrimination. Another line of cases holds that MDO defendants are similar to SVP defendants. The transitive property then means that MDO defendants are similarly situated to NGI defendants.
This being established, the issue shifts to whether California's different treatment of NGI defendants and MDO defendants can survive a strict scrutiny analysis. Surprisingly, the AG doesn't even try to justify the different treatment. The panel does take pity on the state however and states they are not foreclosed from making such arguments in the future.
Thursday, April 14, 2016
P v. Cardona (2nd Dist., Div.1) Erroneous "Kill Zone" Instruction Requires Reversal of Attempted Murder Count.
Mr. Cardona and three friends went to a Springtime backyard party. Also at the party was one Mr. Jauregui, who had a N20 tank from which party goers, after paying a fee, could take a hit. Cardona pulled a gun and tried to rob Jauregui of his money and N20 tank. Jauregui pulled out a knife and began to stab Cardona in the shoulder. Cardona separated himself from Jauregui and opened fire upon Jauregui, who later died of his injuries. Another reveler, one Mr. Carrillo, began to run away from the party upon hearing gunshots. As Carrillo was running, one of Cardona's bullets struck Carrillo in the back.
Cardona was charged with, among other crimes and enhancements, the murder of Jauregui and the attempted murder of Carrillo. A jury convicted Cardona for both these crimes. Cardona appealed.
The Second District reverses the attempted murder conviction for instructional error.
The issue is whether the trial court erred when it gave the "kill zone" instruction for the attempted murder count. The genesis of the issue is the rule that while murder does not require an intent to kill, the crime of attempted murder does. While there is nothing too complex to this principle, it is sometimes complicated by the misapplication of the "transferred intent" doctrine, which does not apply to the crime of attempted murder. However this does not mean that a bystander cannot be a victim of attempted murder. In cases where a defendant intends to kill a group of people in order to kill a specific person, surviving bystanders are victims of attempted murder. If I were to place a bomb on a city bus in order to kill someone I knew would be riding that bus, it would be said that I actually intended to kill everyone who happened to also be on that bus. I would be guilty of attempted murder of the surviving bus riders. The principle is limited to situations where it could reasonably be said the defendant harbored an intent to kill the entire group (although in reality the mental state is most accurately that of indifference).
In this case, the panel feels Cardona did not spray bullets on an entire group that included Carrillo and Jauregui in order to kill Jauregui. Instead Cardona specifically fired at Jauregui. Because there wasn't enough evidence to support a finding that Cardona intended to kill a whole group in order to kill Jauregui, the "kill zone" instruction should not have been given. As the panel finds the instruction likely prejudiced Cardona, his attempted murder conviction is reversed and the case remanded for the state to decide whether to retry him on that count (he is already doing life without the possibility of parole on the murder count).
Cardona (and the rest of mankind) would have been better off had he just gone to Vons and bought a can of Reddi-Whip.
Cardona was charged with, among other crimes and enhancements, the murder of Jauregui and the attempted murder of Carrillo. A jury convicted Cardona for both these crimes. Cardona appealed.
The Second District reverses the attempted murder conviction for instructional error.
The issue is whether the trial court erred when it gave the "kill zone" instruction for the attempted murder count. The genesis of the issue is the rule that while murder does not require an intent to kill, the crime of attempted murder does. While there is nothing too complex to this principle, it is sometimes complicated by the misapplication of the "transferred intent" doctrine, which does not apply to the crime of attempted murder. However this does not mean that a bystander cannot be a victim of attempted murder. In cases where a defendant intends to kill a group of people in order to kill a specific person, surviving bystanders are victims of attempted murder. If I were to place a bomb on a city bus in order to kill someone I knew would be riding that bus, it would be said that I actually intended to kill everyone who happened to also be on that bus. I would be guilty of attempted murder of the surviving bus riders. The principle is limited to situations where it could reasonably be said the defendant harbored an intent to kill the entire group (although in reality the mental state is most accurately that of indifference).
In this case, the panel feels Cardona did not spray bullets on an entire group that included Carrillo and Jauregui in order to kill Jauregui. Instead Cardona specifically fired at Jauregui. Because there wasn't enough evidence to support a finding that Cardona intended to kill a whole group in order to kill Jauregui, the "kill zone" instruction should not have been given. As the panel finds the instruction likely prejudiced Cardona, his attempted murder conviction is reversed and the case remanded for the state to decide whether to retry him on that count (he is already doing life without the possibility of parole on the murder count).
Cardona (and the rest of mankind) would have been better off had he just gone to Vons and bought a can of Reddi-Whip.
Wednesday, April 13, 2016
P v. Weddington (2nd Dist., Div.1) Is Casing a House "Preparation for" or "Commencement of"a Burglary?
Mr. Weddington was part of a trio that greatly underestimated the forethought of the LA police. The trio was seen cruising a residential neighborhood in a red Chrysler, stopping periodically for the driver to get out and knock on a home's front door. After receiving no answer, the driver went back to the car and drove to a spot in the back alley behind the home. Unaware a policeman had been following them, the trio popped the trunk on the Chrysler and got out. Upon seeing the police car, they got back in and cheesed it, but eventually were apprehended. The trunk of the Chrysler contained a crowbar, a modified screwdriver, a window punch, a pair of two-way radios, and a couple pair of gloves.
Approximately three weeks later, Weddington and his two cohorts were out of custody and again rollin' in the red Chrysler. The LAPD was, to the surprise of no one save the trio, following them. The trio again cruised a residential neighborhood, stopping periodically for the driver (Weddington's codefendant) to get out, knock on the front door of a home and, receiving no reply, check out the side yard. Despite receiving no answer at the first four homes, the trio made no move to burgle these. The fifth home was the charm, though, and when the trio exited the house with pillowcases full of loot, they were greeted by a convoy of unmarked police cars.
Again the trio cheesed it, this time running a series of red lights at high speed while tossing the loot out the windows of the Chrysler, hitting the windshield of the pursuing police car. Eventually the Chrysler crashed and the trio, despite making a run for it, were arrested.
A jury convicted Weddington of, among other crimes, one count of residential burglary, four counts of attempted residential burglary, and one count of felony evasion. Weddington appealed.
A Second District panel, in a 2-1 decision, affirms the convictions.
The primary issue is whether there was substantial evidence to support the four convictions for attempted burglary. In this case a valid attempted residential burglary conviction requires evidence that the defendant had the specific intent to enter a residence to steal stuff, and did a direct but ineffectual act towards making such an entrance. However, the "direct but ineffectual act" requires conduct that goes beyond ‘mere preparation'. And it is the location of the end of the preparation spectrum that divides the panel.
It is a difficult task to make a meaningful distinction between "preparation" to commit a crime and an "ineffectual act towards" committing the crime. Where does one end and the other begin? Is loading up a red Chrysler with window punches, crowbars, and latex gloves mere preparation to burgle, or is it an ineffectual act towards committing a burglary. What about driving to the target house? What if you slowly drive past the house, but upon seeing the owner home, you call it quits and go home? Where is the line?
The majority frees itself from this difficult task by invoking judicial deference to jury verdicts. There is much to be said for this approach. Sometimes the best tact is to say, "look, I don't know exactly where the line between preparation and commencement is and I don't need to know, all that I need to be convinced of is that the jury's choice of where to place the line was reasonable."
The dissent tries to solve the issue with greater precision and I leave it to the reader to rate its success. Pointing to language in previous cases that use the concept of "equivocation" to distinguish acts of preparation from acts of commencement, the dissent comes to the conclusion that the trio was still equivocal when casing the four homes. Because the trio decided not to burgle the homes, even after their knocking went unanswered, the dissent finds the trio was still equivocal and thus did not cross the line from preparation to commencement.
While this equivocation rule has some logical appeal, it may be just a restatement of the requirement of showing a specific intent, confusing the actus reus with the mens rea. P v. Zaun confronted a very similar set of facts, but framed the issue as one of specific intent instead of whether the action was one beyond preparation.
Approximately three weeks later, Weddington and his two cohorts were out of custody and again rollin' in the red Chrysler. The LAPD was, to the surprise of no one save the trio, following them. The trio again cruised a residential neighborhood, stopping periodically for the driver (Weddington's codefendant) to get out, knock on the front door of a home and, receiving no reply, check out the side yard. Despite receiving no answer at the first four homes, the trio made no move to burgle these. The fifth home was the charm, though, and when the trio exited the house with pillowcases full of loot, they were greeted by a convoy of unmarked police cars.
Again the trio cheesed it, this time running a series of red lights at high speed while tossing the loot out the windows of the Chrysler, hitting the windshield of the pursuing police car. Eventually the Chrysler crashed and the trio, despite making a run for it, were arrested.
A jury convicted Weddington of, among other crimes, one count of residential burglary, four counts of attempted residential burglary, and one count of felony evasion. Weddington appealed.
A Second District panel, in a 2-1 decision, affirms the convictions.
The primary issue is whether there was substantial evidence to support the four convictions for attempted burglary. In this case a valid attempted residential burglary conviction requires evidence that the defendant had the specific intent to enter a residence to steal stuff, and did a direct but ineffectual act towards making such an entrance. However, the "direct but ineffectual act" requires conduct that goes beyond ‘mere preparation'. And it is the location of the end of the preparation spectrum that divides the panel.
It is a difficult task to make a meaningful distinction between "preparation" to commit a crime and an "ineffectual act towards" committing the crime. Where does one end and the other begin? Is loading up a red Chrysler with window punches, crowbars, and latex gloves mere preparation to burgle, or is it an ineffectual act towards committing a burglary. What about driving to the target house? What if you slowly drive past the house, but upon seeing the owner home, you call it quits and go home? Where is the line?
The majority frees itself from this difficult task by invoking judicial deference to jury verdicts. There is much to be said for this approach. Sometimes the best tact is to say, "look, I don't know exactly where the line between preparation and commencement is and I don't need to know, all that I need to be convinced of is that the jury's choice of where to place the line was reasonable."
The dissent tries to solve the issue with greater precision and I leave it to the reader to rate its success. Pointing to language in previous cases that use the concept of "equivocation" to distinguish acts of preparation from acts of commencement, the dissent comes to the conclusion that the trio was still equivocal when casing the four homes. Because the trio decided not to burgle the homes, even after their knocking went unanswered, the dissent finds the trio was still equivocal and thus did not cross the line from preparation to commencement.
While this equivocation rule has some logical appeal, it may be just a restatement of the requirement of showing a specific intent, confusing the actus reus with the mens rea. P v. Zaun confronted a very similar set of facts, but framed the issue as one of specific intent instead of whether the action was one beyond preparation.
Friday, April 8, 2016
Jones v. Superior Court (3rd Dist.) CCP 170.6's "One Judge Rule" Applies Nowhere.
July 21, 2015, Mr. Jones was charged via complaint with violating H&S 11370.6, possessing over 100,000 dollars with the intent to buy marijuana. When accepting the complaint for filing, the Nevada County court clerk stamped upon the complaint a notice that the case was being assigned for all purposes to Judge Tamietti, the sole judge assigned to the Truckee courthouse.
The Nevada County DA sent a letter to Jones, who lives in Georgia, notifying him to appear in Truckee on August 10, 2016, for arraignment. On August 10, Jones, having filed a PC 977 waiver, appeared in Truckee through his lawyer, who had previously received an unstamped (important, as we'll soon see) copy of the complaint from the DA. Arraignment was continued to September 15, at which time Jones entered a not guilty plea through his attorney, but did not receive a file-stamped copy of the complaint. September 16, Jones' lawyer decided to obtain a stamped copy of the complaint from the court clerk and saw the "assigned for all purposes" stamp. September 17, Jones' lawyer filed a peremptory judicial challenge under Code of Civil Procedure section 170.6. Judge Tamietti denied the petition as untimely. Jones then petitioned the Third District for a writ of mandate.
The Third District grants the petition and issues orders for Judge Tamietti to vacate the previous denial and issue a new order granting Jones' 170.6.
The issue is the applicable time limit for filing a 170.6 petition. Section 170.6 has a number of different time limits depending upon the situation. The two time limits at issue here are the "one judge" limit, and the "all purposes" limit. Under the "one judge" rule, if the case is in a court that is authorized to have no more than one judge, the time limit for filing a 170.6 petition is 30 days from the time the party first appears. The "all purposes" rule applies when a case is assigned to a specific judge for all purposes, and imposes a time limit of 10 days from the latter of [1] the date notice is provided that the case is assigned to a particular judge or [2] the date the party first appears.
Jones argues the "all purposes" rule applies and that since he was first notified of the assignment on September 16, his September 17 petition was within 10 days of notice. The state argues the "one judge" rule applies because Judge Tamietti is the only judge assigned to the Truckee division of the Nevada County Superior Court, meaning a 30 day deadline started on August 10 and had passed on September 17.
The panel sides with Jones. In its textual analysis, the panel notes 170.6 states the 30 day rule applies when a "court is authorized to have no more than one judge" and that it is only the California Government Code that may authorize judges. (Gov. Code, §§ 69580-69611). Since Government Code section 69590.7 provides that “[i]n the County of Nevada there are six judges of the superior court[]", it is the "all purposes" rule that controls. It is of no consequence that zero counties currently have only one judge authorized (meaning attorneys and judges now have one less rule about which to fret).
As a back up argument, the state argues that Jones had received constructive notice of the all purposes assignment prior to September 16, 2015. To which the panel responds that the clock starts to tick only upon actual notice, which occured on September 16.
So either another judge will have to travel to the Truckee courthouse or Jones will have to travel to another Nevada County courthouse, which probably wont seem that onerous after coming all the way from Georgia.
The Nevada County DA sent a letter to Jones, who lives in Georgia, notifying him to appear in Truckee on August 10, 2016, for arraignment. On August 10, Jones, having filed a PC 977 waiver, appeared in Truckee through his lawyer, who had previously received an unstamped (important, as we'll soon see) copy of the complaint from the DA. Arraignment was continued to September 15, at which time Jones entered a not guilty plea through his attorney, but did not receive a file-stamped copy of the complaint. September 16, Jones' lawyer decided to obtain a stamped copy of the complaint from the court clerk and saw the "assigned for all purposes" stamp. September 17, Jones' lawyer filed a peremptory judicial challenge under Code of Civil Procedure section 170.6. Judge Tamietti denied the petition as untimely. Jones then petitioned the Third District for a writ of mandate.
The Third District grants the petition and issues orders for Judge Tamietti to vacate the previous denial and issue a new order granting Jones' 170.6.
The issue is the applicable time limit for filing a 170.6 petition. Section 170.6 has a number of different time limits depending upon the situation. The two time limits at issue here are the "one judge" limit, and the "all purposes" limit. Under the "one judge" rule, if the case is in a court that is authorized to have no more than one judge, the time limit for filing a 170.6 petition is 30 days from the time the party first appears. The "all purposes" rule applies when a case is assigned to a specific judge for all purposes, and imposes a time limit of 10 days from the latter of [1] the date notice is provided that the case is assigned to a particular judge or [2] the date the party first appears.
Jones argues the "all purposes" rule applies and that since he was first notified of the assignment on September 16, his September 17 petition was within 10 days of notice. The state argues the "one judge" rule applies because Judge Tamietti is the only judge assigned to the Truckee division of the Nevada County Superior Court, meaning a 30 day deadline started on August 10 and had passed on September 17.
The panel sides with Jones. In its textual analysis, the panel notes 170.6 states the 30 day rule applies when a "court is authorized to have no more than one judge" and that it is only the California Government Code that may authorize judges. (Gov. Code, §§ 69580-69611). Since Government Code section 69590.7 provides that “[i]n the County of Nevada there are six judges of the superior court[]", it is the "all purposes" rule that controls. It is of no consequence that zero counties currently have only one judge authorized (meaning attorneys and judges now have one less rule about which to fret).
As a back up argument, the state argues that Jones had received constructive notice of the all purposes assignment prior to September 16, 2015. To which the panel responds that the clock starts to tick only upon actual notice, which occured on September 16.
So either another judge will have to travel to the Truckee courthouse or Jones will have to travel to another Nevada County courthouse, which probably wont seem that onerous after coming all the way from Georgia.
Thursday, April 7, 2016
The California Supreme Court Grants of Review Update
The California Supreme Court will review three cases I previously commented upon.
In re K.R., a case holding there is no default Arbuckle right in a plea bargain. You can follow the case here.
In re Ricardo P., deciding whether a probation condition may include an "electronics and social network" search condition for a crime unrelated to computer use. Follow it here.
People v. Venezuela, holding that PC 1170.18 relief does not nullify a previously imposed 667.5(b) prior prison term enhancement. Follow it here.
In re K.R., a case holding there is no default Arbuckle right in a plea bargain. You can follow the case here.
In re Ricardo P., deciding whether a probation condition may include an "electronics and social network" search condition for a crime unrelated to computer use. Follow it here.
People v. Venezuela, holding that PC 1170.18 relief does not nullify a previously imposed 667.5(b) prior prison term enhancement. Follow it here.
In re Jorge D. (4th Dist., Div.3) Police Failure to Comply with PC 647(g) Is a Defense to PC 647(f)
Master Jorge was contacted by the police while hanging out with some older kids. The policeman thought Jorge drunk and unable to safely make it home. Jorge was arrested, given a citation, and driven home. Also, Jorge had a Bic lighter in his pocket.
For this peccadillo the state decided it would be a good idea to prosecute Jorge and seek to have him declared a ward of the court. Jorge took his case to trial and after receiving evidence the good judge found him guilty of both PC 647(f), being drunk in public, and PC 308, minor in possession of a device designed for smoking tobacco, a misdemeanor. The judge declared Jorge a ward of the court and Jorge appealed.
A panel from the Fourth District reverses both counts.
PC 647(f) criminalizes being drunk or high in public to the point you are unable to take care of yourself. 647(g) states that upon an arrest for 647(f), if the arresting officer is reasonably able to do so, she shall place the arrestee in civil protective custody under W&I Code section 5170, unless drugs are involved, the person has committed a felony or another misdemeanor, or if the officer has a good-faith belief that the person will try to escape or be difficult to control. A person who has been placed in W&I 5170 protective custody cannot thereafter be prosecuted for 647(f).
At trial, there was no evidence the police officer was aware of the requirements of 647(g), let alone attempted to comply with them. Jorge argued that failure to comply with 647(g) was a legal defense to a 647(f) charge. The panel agreed and found and the trial court erred when it convicted Jorge, since once Jorge raised the issue the burden switched to the state to show that the failure to place Jorge per W&I 5170 was reasonable, and the state failed to meet that burden.
As to the PC 308 count, the issue was whether a Bic lighter is a device "designed for smoking tobacco". The panel held it was not, rather a lighter is designed to generate a flame, the subsequent use of which is up to the user. A lighter is no more designed for smoking tobacco than it is designed for freebasing cocaine or designed for torching a building to get the insurance money.
The upshot of all this is that, despite the best efforts of Senate candidate Kamala Harris, Jorge is no longer a ward of the court for having drunk a little alcohol while having a disposable lighter in his pocket.
For this peccadillo the state decided it would be a good idea to prosecute Jorge and seek to have him declared a ward of the court. Jorge took his case to trial and after receiving evidence the good judge found him guilty of both PC 647(f), being drunk in public, and PC 308, minor in possession of a device designed for smoking tobacco, a misdemeanor. The judge declared Jorge a ward of the court and Jorge appealed.
A panel from the Fourth District reverses both counts.
PC 647(f) criminalizes being drunk or high in public to the point you are unable to take care of yourself. 647(g) states that upon an arrest for 647(f), if the arresting officer is reasonably able to do so, she shall place the arrestee in civil protective custody under W&I Code section 5170, unless drugs are involved, the person has committed a felony or another misdemeanor, or if the officer has a good-faith belief that the person will try to escape or be difficult to control. A person who has been placed in W&I 5170 protective custody cannot thereafter be prosecuted for 647(f).
At trial, there was no evidence the police officer was aware of the requirements of 647(g), let alone attempted to comply with them. Jorge argued that failure to comply with 647(g) was a legal defense to a 647(f) charge. The panel agreed and found and the trial court erred when it convicted Jorge, since once Jorge raised the issue the burden switched to the state to show that the failure to place Jorge per W&I 5170 was reasonable, and the state failed to meet that burden.
As to the PC 308 count, the issue was whether a Bic lighter is a device "designed for smoking tobacco". The panel held it was not, rather a lighter is designed to generate a flame, the subsequent use of which is up to the user. A lighter is no more designed for smoking tobacco than it is designed for freebasing cocaine or designed for torching a building to get the insurance money.
The upshot of all this is that, despite the best efforts of Senate candidate Kamala Harris, Jorge is no longer a ward of the court for having drunk a little alcohol while having a disposable lighter in his pocket.
Wednesday, April 6, 2016
P v. Tidwell (6th Dist.) Prior PC 1203.4 Relief Is Not a Valid Basis to Deny PC 1170.18 Relief
In 2009, Mr. Tidwell pleaded guilty to two felony counts of H&S 11350, possession of a controlled substance. He was placed on a grant of felony probation, which he completed. In 2011, Tidwell petitioned the court for relief under PC 1203.4, which was granted. In 2015, following the November 2014 passage of Proposition 47, Tidwell petitioned the court to have his felony 11350 convictions reduced to misdemeanors under PC 1170.18. The trial court denied the 1170.18 petition, reasoning that the convictions were not eligible for relief for having been dismissed under 1203.4.
Tidwell appealed and the Sixth District reverses.
The panel frames the issues as one of statutory construction and performs an admirable analysis. Section 1203.4 is really an antinomy. While semantically an eligible defendant is entitled to "withdraw his previous plea", "enter a not guilty plea", and then have the court "dismiss" the case, the legal effect oppugns this seemingly clear language.
The "conviction" still exists. It can be charged as a prior conviction to enhance future sentences. You must disclose the conviction when applying for a professional license or to run for office. And it is the continued existence of this "conviction" that provides the key to this case. Section 1170.18 provides relief for a,
Tidwell appealed and the Sixth District reverses.
The panel frames the issues as one of statutory construction and performs an admirable analysis. Section 1203.4 is really an antinomy. While semantically an eligible defendant is entitled to "withdraw his previous plea", "enter a not guilty plea", and then have the court "dismiss" the case, the legal effect oppugns this seemingly clear language.
The "conviction" still exists. It can be charged as a prior conviction to enhance future sentences. You must disclose the conviction when applying for a professional license or to run for office. And it is the continued existence of this "conviction" that provides the key to this case. Section 1170.18 provides relief for a,
person who has completed his or her sentence for a conviction, whether by trial or plea, of a felony or felonies who would have been guilty of a misdemeanor under this act had this act been in effect at the time of the offenseAcknowledging that 1203.4 relief does not legally nullify a conviction, it cannot then logically be said that Tidwell does not qualify for 1170.18 relief.
P v. Eagle (3rd Dist.) January 1, 2014, Amendment to HS 11379 Applies to Cases Not Yet Final On That Date
In 2013, Mr. Eagle pleaded guilty to transportation of methamphetamine, HS 11379. The imposition of his sentence was suspended and Eagle was placed on probation. January, 2014, HS 11379 was amended to add an element, an intent to transport the drug for purposes of sale. March of 2015, Eagle moved to vacate his 11379 conviction and replace it with a misdemeanor 11377 (possession) conviction. The trial court denied Eagle's motion.
The Third District reverses the 11379 conviction and remands to the trial court where the state will decide whether it should prosecute Eagle under the amended 11379.
This case has similarities to People v. Ramos, which yielded a similar result. The panel determines that the January 2014 amendment contained no saving clause and thus applied to all 11379 convictions that were not final on that date. As the imposition of sentence had been suspended, Eagle's case was not final on January 1, 2014, hence the amendment applies to his case. The next issue is remedy. As an element was added to 11379, the state is entitled to an opportunity to prove the new element, therefore the case is remanded to the trial court for the state to decide whether they believe they can prove Eagle was transporting the methamphetamine for the purpose of sale.
The Third District reverses the 11379 conviction and remands to the trial court where the state will decide whether it should prosecute Eagle under the amended 11379.
This case has similarities to People v. Ramos, which yielded a similar result. The panel determines that the January 2014 amendment contained no saving clause and thus applied to all 11379 convictions that were not final on that date. As the imposition of sentence had been suspended, Eagle's case was not final on January 1, 2014, hence the amendment applies to his case. The next issue is remedy. As an element was added to 11379, the state is entitled to an opportunity to prove the new element, therefore the case is remanded to the trial court for the state to decide whether they believe they can prove Eagle was transporting the methamphetamine for the purpose of sale.
Friday, April 1, 2016
Luis v. U.S. (U.S. Supreme Court) Freezing Untainted Assets of the Defendant Prevents Her From Exercising Her 6th Amendment Right to Counsel
Ms. Luis has been accused (not convicted) of defrauding the United States of 45 million dollars. Allegedly, Luis has already spent the 45 million dollars ill-gotten, but still has two million dollars in "untainted" property, property that she acquired legally. Pursuant to a Federal statute, the District Court granted the government's motion to freeze all Luis' assets, tainted or untainted, up to 45 million dollars, the amount of restitution for which Luis would be on the hook should the government's allegations result in a conviction. Luis wants, understandably, to use the two million dollars in untainted property to hire a defense attorney(s).
The District Court refused Luis' request, stating there is "no 6th Amendment right to use untainted assets to hire counsel". The Eleventh Circuit affirmed.
The United States Supreme Court reverses. J. Breyer writes for a plurality of four, J. Thomas concurs in the judgment, but disagrees with the plurality's approach. J. Kennedy, joined by J. Alito, pens a dissent. J. Kagan also pens a dissent.
For the plurality, the "untainted" character of Luis' assets make the difference, providing the basis to distinguish the court's previous decisions in Drysdale and Monsanto. In both of these cases, the assets at issue were either ill-gotten gains or property that could be traced to ill-gotten gains. Breyer reasons by analogy to Bankruptcy law's "relation back doctrine" that the government's interest in "tainted" property is substantial enough to outweigh a defendant's right to her counsel of choice, due to the legal fiction that ill-gotten gains become property of the government the moment the crime is committed. However, untainted assets, lack the inherent character that gives rise to the government's interest. Untainted assets, though available to satisfy fines and restitution upon a conviction, lack the criminal nexus of tainted assets and thus do not outbalance Luis' 6th Amendment right to hire counsel of her choosing.
Thomas' concurrence utilizes a much less flexible rubric. After an excellent historical overview of the 6th Amendment's right to counsel, Thomas uses the predicate act cannon to arrive at an appealingly simple syllogism: The 6th Amendment confers a right to hire a lawyer of one's choosing, a right necessarily includes the prerequisites for exercising the right, a prerequisite for hiring a lawyer of one's choosing is access to one's untainted assets, therefore the 6th Amendment necessarily includes the ability to use one's untainted assets to hire a lawyer.
Kennedy writes an exceedingly long and disappointing dissent. He thinks the result will encourage thieves to spend their ill-gotten gains first in order to keep their own untainted money in reserve to hire counsel if they are caught. This may be true (or it may not--I would spend the plundered loot first anyway if only to make detection more difficult), but it is far from a legitimate basis to interpret the United States Constitution. Within the criminal milieu, every exercise of an accused's Constitutional protections can be said to "reward" the accused, guilty or not. Thomas' approach looks even better after reading Kennedy's dissent.
Finally, Kagan says she is troubled by the holding in Monsanto, but not enough to overrule it. And because she thinks this case is controlled by Monsanto, she dissents.
[As an aside, I did not know that at common law you had no right to an attorney (meaning one you hired-the right to a lawyer at taxpayers' expense is a modern creation) if you were charged with a felony, save treason. In England, one accused of a felony (crimes punishable by death) was forced to represent himself at trial, even if he could, or did, hire an attorney. The Sixth Amendment's right to counsel "in all criminal proceedings" was a an explicit rejection of the English Common law's limitations on the right to counsel, which only conferred the right to be represented to those accused of misdemeanors (and treason). ]
The District Court refused Luis' request, stating there is "no 6th Amendment right to use untainted assets to hire counsel". The Eleventh Circuit affirmed.
The United States Supreme Court reverses. J. Breyer writes for a plurality of four, J. Thomas concurs in the judgment, but disagrees with the plurality's approach. J. Kennedy, joined by J. Alito, pens a dissent. J. Kagan also pens a dissent.
For the plurality, the "untainted" character of Luis' assets make the difference, providing the basis to distinguish the court's previous decisions in Drysdale and Monsanto. In both of these cases, the assets at issue were either ill-gotten gains or property that could be traced to ill-gotten gains. Breyer reasons by analogy to Bankruptcy law's "relation back doctrine" that the government's interest in "tainted" property is substantial enough to outweigh a defendant's right to her counsel of choice, due to the legal fiction that ill-gotten gains become property of the government the moment the crime is committed. However, untainted assets, lack the inherent character that gives rise to the government's interest. Untainted assets, though available to satisfy fines and restitution upon a conviction, lack the criminal nexus of tainted assets and thus do not outbalance Luis' 6th Amendment right to hire counsel of her choosing.
Thomas' concurrence utilizes a much less flexible rubric. After an excellent historical overview of the 6th Amendment's right to counsel, Thomas uses the predicate act cannon to arrive at an appealingly simple syllogism: The 6th Amendment confers a right to hire a lawyer of one's choosing, a right necessarily includes the prerequisites for exercising the right, a prerequisite for hiring a lawyer of one's choosing is access to one's untainted assets, therefore the 6th Amendment necessarily includes the ability to use one's untainted assets to hire a lawyer.
Kennedy writes an exceedingly long and disappointing dissent. He thinks the result will encourage thieves to spend their ill-gotten gains first in order to keep their own untainted money in reserve to hire counsel if they are caught. This may be true (or it may not--I would spend the plundered loot first anyway if only to make detection more difficult), but it is far from a legitimate basis to interpret the United States Constitution. Within the criminal milieu, every exercise of an accused's Constitutional protections can be said to "reward" the accused, guilty or not. Thomas' approach looks even better after reading Kennedy's dissent.
Finally, Kagan says she is troubled by the holding in Monsanto, but not enough to overrule it. And because she thinks this case is controlled by Monsanto, she dissents.
[As an aside, I did not know that at common law you had no right to an attorney (meaning one you hired-the right to a lawyer at taxpayers' expense is a modern creation) if you were charged with a felony, save treason. In England, one accused of a felony (crimes punishable by death) was forced to represent himself at trial, even if he could, or did, hire an attorney. The Sixth Amendment's right to counsel "in all criminal proceedings" was a an explicit rejection of the English Common law's limitations on the right to counsel, which only conferred the right to be represented to those accused of misdemeanors (and treason). ]
Subscribe to:
Posts (Atom)