July 28, 2007


July 24, 2007

Lawyers for a man incarcerated for 16 years for rape and murder say they have uncovered evidence that could exonerate him – evidence that was not turned over at his 1993 trial by a prosecutor who is now a Superior Court judge in Vista, Timothy Casserly.

Samson Dubria received the jury's verdict in 1993.

The information is the newest development in the long-running case of Samson Dubria, 44, a doctor serving a sentence of life without the possibility of parole in the killing 16 years ago of traveling companion Jennifer Klapper in a Carlsbad motel room.

Dubria's lawyers claim prosecutors deliberately withheld medical evidence from the defense during the high-profile trial, prompting a local judge to order the San Diego District Attorney's Office to explain why the murder conviction should not be overturned.

Prosecutor Tim Casserly, who became a judge three years after the trial, told jurors that Dubria gave Klapper a fatal dose of chloroform so he could rape her. Now defense attorneys say that they have evidence the 20-year-old woman had a heart problem and that the chloroform found during her autopsy could have come from contamination in the Medical Examiner's Office.

In issuing his order to prosecutors last week, Superior Court Judge Richard Whitney pointed to the allegation of withheld evidence, information about the autopsy and the testimony of the deputy medical examiner on the case.

Whitney's ruling is the first step in what could be a long – but significant – process for Dubria.

“In the overwhelming majority of cases, you don't get this far,” said Justin Brooks, a executive director of the Innocence Project at California Western School of Law. The organization has won the freedom of five inmates long after they were convicted.


July 27, 2007


When I left off, I was discussing the recently decided Black case addressing Cunningham's application to prior convictions. Onward to Sandoval...


In Sandoval, there are no valid aggravating factors at all to permit imposition of the upper term. So the first question the court resolves is when Cunningham error can be harmless. The court holds,

... if a reviewing court concludes, beyond a reasonable doubt, that the jury, applying the beyond-a-reasonable-doubt standard, unquestionably would have found true at least a single aggravating circumstance had it been submitted to the jury, the Sixth Amendment error properly may be found harmless.

The various aggravating factors relied upon by the sentencing court in Sandoval to impose upper term were all facts relating to the crime, and they were all in dispute. So the court concludes that the error is not harmless. They thus reverse.

Now things get seriously weird. The court decides it is going to clarify what the rules are for sentencing on remand. One solution would be to provide for jury trials on aggravating factors. The court explicitly rejects this alternative:

Although such a process would comply with the constitutional requirements of Cunningham, engrafting a jury trial onto the sentencing process established in the former DSL would significantly complicate and distort the sentencing scheme. Neither the DSL nor the Judicial Council’s sentencing rules were drafted in contemplation of a jury trial on aggravating circumstances. It is unclear how prosecutors might determine which aggravating circumstances should be charged and tried to a jury, because no comprehensive list of aggravating circumstances exists.

For what it is worth, this should put to rest the attempts by prosecutors to file aggravating factors in the information. One Court of Appeal has permitted this (Barragan v. Superior Court (2007) 148 Cal. App. 4th 1478.) Another Court of Appeal rejected it. (People v. Diaz (2007) 150 Cal. App. 4th 254.) We have now won this issue and we should be able to stop courts and prosecutors from proceeding with jury trials on aggravating factors.

Of course, the Legislature has enacted its own fix, S.B. 40, amending Penal Code section 1170, subdivisions (a)(3), and (b), which now makes the three DSL choices a sentencing range, with no presumption of the middle term. However, S.B. 40 was effective on March 30, 2007. The Supreme Court recognizes that it is uncertain whether SB40 can be applied retroactively. What they do instead is rewrite the DSL and make that rewrite fully retroactive.

The rewritten DSL now includes the same sentencing range created by S.B. 40. In brief, the three sentencing choices are now a range. The only restraint on the sentencing court is that the court must state reasons for its decisions. Appellate courts will review that statement of reasons using an abuse of discretion standard.

The obvious problem with judicially rewriting a statute and applying that change retroactively to cases where the crimes have already occurred is that increasing a defendant’s sentence after commission of the crime violates the ex post facto ban. The California Supreme Court assures us that judicial decisions are exempt from the ex post facto ban, because that ban only applies to statutory enactments. They say that the real issue is whether retroactive application of laws rewritten by courts violates due process, which turns on whether a defendant had notice. They conclude that defendants did get the required notice, since when this defendant committed her crime, she knew she could get high term.

The problem with this position is that it is wrong. The California Supreme Court cites the controlling United States Supreme Court decision, but then applies it incorrectly. In Rogers v. Tennessee (2001) 532 U.S. 451, 121 S.Ct. 1693, the United States Supreme Court scaled back its broad language in Bouie v. City of Columbia (1964) 378 U.S. 347, 84 S.Ct. 1697. The court said that not all judicial expansion of statutes was barred by the due process clause. The court held, “Accordingly, we conclude that a judicial alteration of a common law doctrine of criminal law violates the principle of fair warning, and hence must not be given retroactive effect, only where it is ‘unexpected and indefensible by reference to the law which had been expressed prior to the conduct in issue.’” (Rogers v. Tennessee, supra, 532 U.S. 451, 462 [121 S.Ct. 1693, 1700].)

Thus, the issue is whether the court’s ruling was “unexpected.” The California Supreme Court in Sandoval found no due process violation, saying “Defendant was put on notice by section 193 that she could receive the upper term for her offense: the statute specifies that ‘[v]oluntary manslaughter is punishable by imprisonment in the state prison for 3, 6, or 11 years.’ (§ 193, subd. (a).) That notice satisfies the requirements of due process.”

This position is wrong conceptually. A perfectly informed defendant would know that upper term was not available unless aggravating factors overcame the DSL presumption of middle term. Certainly, that mythical defendant could not know that upper term was available event absent any aggravating factors, which is the new DSL as rewritten by the California Supreme Court.

But in any event, the California Supreme Court is applying the Rogers test incorrectly. The issue is not what notice the defendant has. The issue, as just quoted, is whether the change is “unexpected and indefensible by reference to the law which had been expressed prior to the conduct in issue.” And on this issue we obviously win. In the first Black opinion, People v. Black (2005) 35 Cal.4th 1238, the California Supreme Court ruled that the DSL survived Apprendi and Blakely. Rewriting the DSL was totally unexpected until Cunningham was issued. An argument might be made that once Cunningham was issued, a change in the DSL could be expected. But no reasonable claim could be made that before Cunningham was issued, anyone could expect that the DSL would be rewritten to make the DSL a range.

It seems obvious that Cunningham has resulted in almost every defendant being worse off – a few, probably no more than a handful, of clients during the window period between Cunningham and the issuance of Black and Sandoval. But all of our clients are now subject to upper term without the courts even having to engage in the sham of finding that aggravating factors justify imposition of upper term; the court can now just pick upper term and the only limitation is a statement of reasons. It is unclear if a statement of reasons is going to really mean anything at all. So we win Cunningham, California’s DSL is unconstitutional, and the actual result is that hardly anyone gets any benefit and everyone is worse off.

July 26, 2007


On July 19, 2007, the California Supreme Court decided two cases presenting a variety of issues raised by the United States Supreme Court’s opinion in Cunningham v. California (2007) __ U.S. __, 127 S.Ct. 856; 2007 WL 135687; 2007 US Lexis 1324. The United States Supreme Court, 6 to 3, held in Cunningham that the portion of California’s Determinate Sentencing Law (DSL) permitting judges to impose aggravated terms for reasons not admitted by the defendant or found by a jury is unconstitutional. The California Supreme Court’s response to Cunningham came in two cases, People v. Black (2007) __ Cal.4th __; 2007 DJ DAR 11041; DJ, 7/20/07, and People v. Sandoval (2007) __ Cal.4th __; 2007 DJ DAR 11051; DJ, 7/20/07. The decisions in Black and Sandoval raise a slew of constitutional issues. This article discusses some of those issues.


In Black, the Supreme Court held that the failure of defense counsel to object did not waive any Cunningham challenge, since binding California law precluded any successful challenge to California’s DSL law. That’s the only issue the defense won in Black.

The court ruled that “as long as a single aggravating circumstance that renders a defendant eligible for the upper term sentence has been established in accordance with the requirements of Apprendi and its progeny, any additional fact finding engaged in by the trial court in selecting the appropriate sentence among the three available options does not violate the defendant’s right to jury trial.” (Emphasis in original.)

In other words, if the court can find at least one aggravating circumstance that was found by the jury, admitted by the defendant, or qualifies as an exception to the jury-finding requirement, the sentencing judge is free to impose upper term.

The Supreme Court is wrong on this point, and I suggest that Black will not be the law of the land for long. They say, “Therefore, if one aggravating circumstance has been established in accordance with the constitutional requirements set forth in Blakely, the defendant is not ‘legally entitled’ to the middle term sentence, and the upper term sentence is the ‘statutory maximum.’”

Not true. A sentencing court may not impose upper term merely because it finds one aggravating factor true; the court must weigh that factor and find that it justifies upper term. The presumption that a defendant is entitled to the middle term remains unless and until the sentencing court both makes a finding that there is an aggravating factor and weighs that factor to determine that upper term is justified.

The court found two valid aggravating factors. The first was that the defendant used force. The actual court rule on this (Cal. Rules of Court, rule 4.421(a)(1)) refers to “great violence,” or the “threat of great bodily harm.” But the court says that the list of aggravating factors in the court rules is not exhaustive, and essentially any fact related to the crime can qualify.

The crimes here were Penal Code section 288.5, continuous sexual abuse, and Penal Code section 288, subdivision (a), lewd acts on a child. The jury found that the no-probation allegation under Penal Code section 1203.066, subdivision (a)(1), was true. That allegation recited that the defendant used force. So the Supreme Court concluded that the jury did find force and the trial court could thus validly rely on that finding to justify upper term.

The court found a second valid aggravating factor: the defendant’s priors. The court first rules that priors are an exception to Cunningham, and then articulates the scope of that exception. First, the court says that priors are an exception, “The United States Supreme Court consistently has stated that the right to a jury trial does not apply to the fact of a prior conviction.” It is true that the United States Supreme Court keeps articulating its rule requiring juries to find facts increasing a defendant’s sentence with an exception.

For example, the Supreme Court in Cunningham stated the rule this way: “the Federal Constitu­tion’s jury-trial guarantee proscribes a sentencing scheme that allows a judge to impose a sentence above the statu­tory maximum based on a fact, other than a prior convic­tion, not found by a jury or admitted by the defendant.” (127 S.Ct. 856, 860.) The fly in this ointment is the phrase, “other than a prior conviction.” But our position is that this is not a resolution of whether there is an exception for prior convictions, it is just a notation that the court has not resolved that issue.

We have been arguing for years that prior convictions must be proved beyond a reasonable doubt to a jury, just as with any fact being relied on to increase a defendant’s sentence. The United States Supreme Court has previously ruled that the United States Constitution does not require a jury trial on a prior conviction alleged as an enhancement. (Almendarez-Torres v. United States (1998) 523 U.S. 224 [118 S.Ct. 1219, 140 L.Ed.2d 350].)

However, in Apprendi, the United States Supreme Court held that, “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” (Apprendi v. New Jersey (2000) 530 U.S. 466, 490 [120 S.Ct. 2348, 147 L.Ed.2d 435].) The United States Supreme Court in Apprendi stated that Almendarez-Torres “represents at best an exceptional departure from the historic practice that we have described.” (Apprendi v. New Jersey, supra, 530 U.S. 466, 487.)

The court also stated:

Even though it is arguable that Almendarez-Torres was incorrectly decided, and that a logical application of our reasoning today should apply if the recidivist issue were contested, Apprendi does not contest the decision’s validity and we need not revisit it for purposes of our decision today to treat the case as a narrow exception to the general rule we recalled at the outset. (Apprendi v. New Jersey, supra, 530 U.S. 466, 489-490.)

Of the greatest importance, the fifth justice voting for the holding in Almendarez-Torres was Justice Thomas, who wrote a concurring opinion in Apprendi. Thomas provided the critical fifth vote, in which he stated that he was wrong in Almendarez-Torres, and concluded, “it is evident why the fact of a prior conviction is an element under a recidivism statute.” (Apprendi v. ew Jersey, supra, 530 U.S. 466, 521, Thomas, J., concurring.)

Adding the four votes for the lead opinion with the fifth vote from Justice Thomas leaves no doubt that Almendarez-Torres is no longer the law and that a prior conviction must in fact be proved to a jury. Thus, we should argue that the defendant was entitled to a jury trial on all aspects of the alleged prior conviction.

The second question presented with respect to prior convictions is the scope of the exception for prior convictions. In Black, the California Supreme Court stated that the exception for prior convictions includes “not only the fact that a prior conviction occurred, but also other related issues that may be determined by examining the records of the prior convictions.” This is dead wrong; in fact the United States Supreme Court has already considered and rejected the claim that the exception for priors is broader than the mere fact of the prior conviction itself.

In his dissent in Cunningham, Justice Kennedy wrote:

The Court could distinguish between sentencing enhancements based on the nature of the offense, where the Apprendi principle would apply, and sentencing enhancements based on the nature of the offender, where it would not. California attempted to make this initial distinction. Compare Cal. Rule of Court 4.421(a) (Criminal Cases) (West 2006) (listing aggravating [f]acts relating to the crime), with Rule 4.421(b) (listing aggravating [f]acts relating to the defendant). The Court should not foreclose its efforts. (Cunningham v. California, supra, __ U.S. __ [127 S.Ct. 856, 872], dis. opn. of Kennedy, J., internal quotation marks omitted.)

The “facts relating to the defendant” that Justice Kennedy mentioned, to which rule 4.421(b) refers, are recidivism-related factors. Rule 4.421(b) provides:

Facts relating to the defendant include the fact that:

(1) The defendant has engaged in violent conduct that indicates a serious danger to society;

(2) The defendant’s prior convictions as an adult or sustained petitions in juvenile delinquency proceedings are numerous or of increasing seriousness;

(3) The defendant has served a prior prison term;

(4) The defendant was on probation or parole when the crime was committed; and

(5) The defendant’s prior performance on probation or parole was unsatisfactory.”

The majority in Cunningham said, in response to Kennedy’s point:

Justice KENNEDY urges a distinction between facts concerning the offense, where Apprendi would apply, and facts concerning the offender, where it would not. Post, at 872 (dissenting opinion). Apprendi itself, however, leaves no room for the bifurcated approach Justice KENNEDY proposes. See 530 U.S., at 490, 120 S.Ct. 2348 (“[A]ny fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” (emphasis added in Cunningham)). (Cunningham v. California, supra, __ U.S. __ [127 S.Ct. 856, 869, fn. 14, quoting Apprendi.)

Thus, Justice Kennedy raised this point and the majority rejected it. So even if prior convictions are an exception to Cunningham, that exception is limited to the fact of the prior conviction, not these so-called “recidivist factors.” On this point the California Supreme Court is dead wrong.

Finally, the California Supreme Court ruled in Black that the imposition of consecutive sentences does not violate Cunningham, because the jury’s verdict on the additional counts permits a consecutive term. We disagree on this point too, since Penal Code section 669 says that if the court fails to make a sentence concurrent, it becomes consecutive as a matter of law.

Stayed Tuned for Part two - SANDOVAL

July 23, 2007


The Immigration and Nationality Act (INA) permits deportation of an alien convicted of an "aggravated felony," which can include "a crime of violence for which the term of imprisonment [is] at least one year." In line with this provision, aliens convicted of driving under the influence of alcohol (DUI) in states which characterize a DUI conviction as a crime of violence have been subjected to automatic deportation, even if they have been legally residing in the U.S. for years.

However, the U.S. Supreme Court barred deportation of an alien convicted of DUI pursuant to the aforementioned INA provision. In November 2004, the Court held in Leocal v. Ashcroft that state DUI offenses that do not require proof of any mental state, or require only a showing that an individual acted negligently in operating the vehicle, are not crimes of violence for purposes of expedited alien deportation.


Pursuant to 18 U.S.C. Section 16, a "crime of violence" for which a convicted alien may be deported must involve either one of the following:

1. Use of physical force against the person or property of another; or
2. A felony that involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.

The Court in Ashcroft interpreted the first definition as requiring "active employment" of force. Accordingly, the Court concluded that a DUI offense is not a crime of violence where the DUI statute under which an alien was convicted does not require proof of any mental state or only requires proof that an individual acted negligently. The Court reasoned that a person convicted of DUI does not actively employ physical force against another, where the state's DUI statute does not require "a higher degree of intent than negligent or merely accidental conduct."

Furthermore, the Court concluded that the second definition does not cover all negligent conduct (e.g., negligent operation of a vehicle), where the negligent conduct at issue did not involve a substantial risk that physical force might be used against another by virtue of committing the offense. The Court distinguished a DUI offense from burglary, which "involves a substantial risk that the burglar will use force against a victim in completing the crime."


Based on these interpretations, the Court reversed a deportation order that had been issued against a lawful permanent resident by the Board of Immigration Appeals (BIA) pursuant to Section 237 of the INA. Having pled guilty to two counts of DUI and causing serious bodily injury in an accident, the legal immigrant in this case was technically eligible for automatic deportation under a Florida DUI statute that characterized DUI offenses as crimes of violence. However, since Florida's DUI statute did not require proof of any mental state, the Court concluded that the DUI offense could not be characterized as a crime of violence. Redefining the nature of drunken driving, the Court effectively lifted the threat of deportation based on DUI convictions for millions of legal immigrants in the U.S.


July 18, 2007



This case involves an issue in a mentally disordered offender (MDO) case. But the issue itself isn't the key point.

There is a California Court of Appeal case right on point. But the trial court thought that decision was wrong, and so wouldn't follow it.

This Court of Appeal is not amused and reverses. They say, clearly and repeatedly, that trial courts are BOUND to follow decisions of California appellate courts, unless there's a conflicting California Court of Appeal case to the contrary, or the facts are fairly distinguishable.

Cuccia v. Superior Court; 2007 DJ DAR 10873; DJ, 7/18/07; C/A 2nd,
Div. 6

July 13, 2007


So what's new. Yet another exonneration of a sociopathic law enforcment officer by the prosecutors sworn to protect the public. In lockstep with her unethical predecessor Paul Pfingst, San Diego District Attorney Bonnie Dumanis again declines to prosecute a violent and uncontrollable cop. All I can say is "Buyer Beware" in the next election. When those running for office run on a "Law Enforcement's Choice" ticket, we're in for trouble.

Oh, and before you all claim I'm just a naysayer, I gave Bonnie Dumanis the maximum allowable contribution when she was running for San Diego District Attorney. That's right.

By Jose Luis Jiménez

July 13, 2007

During three years of patrolling San Diego County's streets, sheriff's Deputy Mark Ritchie has been involved in two fatal shootings, has been accused in three lawsuits of excessive force and testified once that he kicked a handcuffed murder suspect.

Benny Ramirez held a photo of his son Jorge, who was shot to death by sheriff's Deputy Mark Ritchie in 2005. Ramirez said he would like to see law enforcement use less force in the course of duty.

Yesterday, the state Attorney General's Office announced that the district attorney was right not to prosecute Ritchie for the killing of Jorge Ramirez, a robbery suspect who was shot six times as he lay on the ground, wounded by a previous gunshot.

The attorney general's report questions the district attorney's analysis of the case, but in the end concluded it would be difficult to convince a jury that Ritchie committed a crime.

Ramirez was one of five Latino men shot to death by sheriff's deputies in Vista in 2005. District Attorney Bonnie Dumanis cleared the deputies of wrongdoing in all five cases.

In February, Latino activists and the American Civil Liberties Union called on the attorney general to review Dumanis' conclusions. The Attorney General's Office found in each case that the district attorney acted correctly, but it took five months to reach a decision in the Ramirez shooting. The others were decided in May.

For a graphic description of the many shootings by Ritchie, click on below....


July 8, 2007


U.S. court reinstates federal wiretapping laws. Please read the attached article for more on this frightening court decision.

July 6, 2007



The defendant was convicted of Penal Code section 288(a) and was granted probation. One of Probation was that he obey all orders of probation. But the Los Angeles Probation Department had a regulation prohibiting any defendant who has to register under Penal Code section 290 (registration for sex offenders) from leaving the county for any purpose. The defendant's job, however, required him to leave Los Angeles County sometimes, though he always returned at night. Of course, probation wouldn't relent.

The California Court of Appeal finds that probation can't just have policies which aren't particularized to an individual defendant's situation.

Practice Pointer: We must seek out and challenge these "policies" of our respective probation departments citing the Smith case. If need be, file an injunction to stop the application of such a policy. Otherwise, appeal. But don't let them continue. Probation often times believes it has more power than it does. The Smith case clears that up nicely, thank you!

July 5, 2007


The California 6th District Court of Appeal has ruled that NO juvenile priors can be used as strike priors! (People v. Nguyen; 2007 DJ DAR 9965; DJ, 7/3/07; C/A 6th)

The Court of Appeal states that US Supreme Court case law compels this result. The Court held that the role of the jury is diminished and eroded in violation of the Sixth and Fourteenth Amendments by the use of juvenile adjudications to increase the maximum punishment for an offense, in light of the U.S. Supreme Court's opinions in Apprendi and Blakely.

Initially, this California Court of Appeal held that juvenile wardship findings could not be used as strike priors unless the minor admitted the juvenile petition. They granted rehearing and ultimately decided that ALL juveniles priors must be banned for future use.

Here is what they said: "Today we hold that a juvenile adjudication is not a prior conviction within the meaning of Apprendi because the juvenile offender does not have the right to a jury trial. Therefore, a juvenile adjudication cannot be used, pursuant to the Three Strikes law, to impose on an adult a sentence in excess of the maximum sentence that could have been imposed on the basis of a trial or a defendant's admission."

Seth Flagsberg, Santa Clara Public Defender, filed and won the appeal. Now the problem is whether this will stand up if the California Supreme Court grants review?

Practice Pointer: If you're handling an adult case with juvenile strike priors, run in quickly and try to get rid of them with this opinion... before it gets vacated. Don't just assume that your clients now have a free ride, assume the worst: that we will ultimately lose this.

July 5, 2007


SAN DIEGO COUNTY -- Arrests of motorists suspected of driving under the influence of alcohol (DUI) were down across the state and San Diego County during the first 12 hours of the Fourth of July holiday, according to the California Highway Patrol.

Between 6 p.m. Tuesday and 6 a.m. Wednesday, 28 people were arrested for DUI or "drunk driving" in San Diego, compared with 34 DUI arrests over the same period last year, data released by the California Highway Patrol showed.

Across California, drunken driving arrests decreased even more when compared with the same 12 hours last year, from 406 last year to 280 this year.


July 3, 2007

San Diego Police Department DUI Checkpoints-Beware!

Beware of DUI checkpoints this Fourth of July. The San Diego Police Department is stepping up its efforts to crack down on those who drink and drive this holiday by establishing more DUI checkpoints within the City of San Diego than ever before. The San Diego Police Department is supposed to give the public advance notice of DUI checkpoints, but more often than not, doesn't announce the checkpoints within time required for proper notice by law.

So, beware of DUI checkpoints this Fourth of July. Contact Sgt. Mark McCullough at the San Diego Police Department Traffic Division, (619) 818-4860, if you are going out and want information on where these checkpoints will be staged.

Drink responsibly. If you think you've had too much to drink, save a life, take a cab. The life you save could be your own. Or, even more importantly, it could be mine!

July 2, 2007



The police stop a car. Obviously the driver is detained. Incredibly, the California Supreme Court held that passengers in stopped cars are NOT detained. (Brendlin, 38 C4th 1107.)

The US Supreme Court now reverses - unanimously. The holding is that passengers ARE detained, so the passenger gets to challenge the legality of the stop. The test is from Mendenhall (446 U.S. 544) and Drayton (536 U.S. 194): a person is seized if a reasonable person would believe that he or she isn't free to leave or would not feel free to decline the officer's requests or otherwise terminate the encounter.

But what happens when the stop is legal? What's the scope of what the police can do with the passenger? There's this recent wacko Vibanco case (2007 DJ DAR 7463; DJ, 5/25/07), where the California Court of Appeal said that ordering the passenger to stay in the car and then exit was okay because even though the passenger was detained, the detention was permissible for officer safety. They then upheld a request for Identification. The Santa Clar Public Defender's Office is petitioning the California Supreme Court to fix this.

Practice Pointer: Take the position that passengers who are detained only because there was justification to stop the driver are detained in a very limited way, which permits the police to do essentially nothing with them.