August 31, 2007

CALIFORNIA COURT OF APPEALS DEFINES "BURGLARY TOOLS"

The defendant in this case was convicted of California Penal Code section, possession of burglary tools. The tools he possessed were a box cutter and a slingshot.

In this case, the Court of Appeals is called on to define the term "burglary tools.". You might ask yourself, "Are you kidding?" Well, we're not.

What are "burglary tools"? Why, tools that the evidence shows are possessed with the intent to be used for burglary, of course. And the testimony of the officer that burglars use box cutters and slingshots for burglaries surely establishes such intent to use, right?

This sounds more like what the schoolyard bully would be using to extract lunch money from weaker kids than what a burglar would use to break into a house. This case is a prime example of a cop being able to testify as an "expert" on anything, and the court buying it hook, line and sinker.

Oh yes, there was also some evidence that the defendant had committed some burglaries. I wonder if that influenced the court? Of course!

People v. Kelly; 2007 DJ DAR 13357; DJ, 8/31/07; C/A 1st

August 29, 2007

JUVENILE PRIOR CONVICTIONS MAY BE USED TO AGGRAVATE ADULT SENTENCES

JUVENILE PRIORS MAY BE USED TO AGGRAVATE ADULT SENTENCES

The adult court here imposed upper term on this defendant's sentence, relying on a juvenile prior as the aggravating factor.

The question posed to the California Court of Appeal here is: May a juvenile
prior be used as an aggravating factor after Cunningham (127 S.Ct.
856)?

The First District Court of Appeal says the issue is the reliability of the prior. Oh, and those juvenile priors are SO reliable. After all, those minors have the right to a trial and witnesses and proof beyond a reasonable doubt, right? No, they do not.

And we can surely trust those unbiased and reliable judges as the triers of fact, right? So the Court of Appeal says that juvenile priors may be used to aggravate adult sentences.

People v. Tu; 2007 DJ DAR 13131; DJ, 8/29/07; C/A 1st

August 25, 2007

CALIFORNIA HIGHWAY PATROL OFFICER SLAPPED ON WRIST FOR ATTACKING SUSPECT

By Ray Huard
UNION-TRIBUNE STAFF WRITER

August 25, 2007

VISTA – A former California Highway Patrol officer was placed on three years' probation and ordered to perform 300 hours of volunteer work for manhandling an Encinitas man he arrested, a judge ruled yesterday.

Brian David Kennedy has resigned the CHP job he held for 17 years and cannot apply to work as a peace officer in California under the terms of a plea agreement approved by Judge Aaron Katz.

Calling Kennedy's actions “shameful and disgraceful,” the judge also ordered Kennedy to enroll in anger-management classes.

Kennedy, 44, must pay any medical and dental expenses incurred by Andrew Chase as a result of the rough handling he received when Kennedy arrested him July 4, 2006, on suspicion of driving under the influence, the judge said.

“You've basically spent 17 years developing a career and it took literally 15 seconds to destroy that career, and in my estimation that's a terrible waste,” Katz told Kennedy. “But for those 15 seconds, you've had an excellent and stellar career.”

Despite glowing evaluations from his supervisors and people in the community, Katz said Kennedy must be punished because “the public needs to understand there are ramifications to this kind of behavior.”

The judge said he was concerned that Kennedy's actions might reflect poorly on other officers.

“I don't think that the public should lose faith in the California Highway Patrol or any peace officers,” Katz said. chp.jpg


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August 22, 2007

ACTOR BILL MURRAY ARRESTED IN SWEDEN FOR DUI ON GOLF CART

STOCKHOLM, Sweden, Aug. 22, 2007

Actor Bill Murray could face a drunk driving charge after cruising through downtown Stockholm in a golf cart and refusing to take a breath test.

Police officers spotted the 56-year-old actor-comedian early Sunday in the slow-moving vehicle and noticed he smelled of alcohol when they pulled him over, said Detective-Inspector Christer Holmlund of the Stockholm police.

"He refused to blow in the (breath test) instrument, citing American legislation," Holmlund told The Associated Press on Wednesday. "So we applied the old method — a blood test. It will take 14 days before the results are in."

Murray, who had been at a golf tournament in Sweden, signed a document admitting that he was driving under the influence, and agreed to let a police officer plead guilty for him if the case goes to court, Holmlund said.

"Then he was let go. My guess is he went back to America," Holmlund said.

He said Murray would only be charged for DUI if tests show his blood alcohol level exceeded the legal limit, which is quite low in Sweden. A very high alcohol level could lead to a prison sentence, but Holmlund said fines were more likely.

"There were no obvious signs, like when someone is really tipsy," he said.

Holmlund said it wasn't clear where Murray picked up the vehicle, or to whom it belonged.

"It was a golf cart. How it ended up in this predicament I don't know," he said, adding that Murray wasn't facing any theft charges.

It isn't illegal to drive a golf cart in city traffic in Sweden, but Holmlund said it is very unusual.
"I have done this since '68 and I've never experienced anything like this," he said.

Murray was among the cast members on NBC's "Saturday Night Live." He was nominated for an Oscar for 2003's "Lost in Translation." His screen credits also include the 1980 golfing comedy, "Caddyshack"; "Groundhog Day"; and "Rushmore."

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August 20, 2007

CALIFORNIA CRIMINAL DEFENSE ATTORNEYS MAY FILE SEALED DECLARATIONS IN PITCHESS DISCOVERY MOTIONS

CALIFORNIA CRIMINAL DEFENSE LAWYER NEWS

This is a long awaited win by Orange County Deputy Public Defender Don Landis in which the Supreme Court agreed that defense attorneys are entitled to file Pitchess (11 Cal.3d 531) declarations under seal. California criminal defense attorneys have been waiting with baited breath for this decision.

The court restates Warrick (35 Cal.4th 1011) stating the showing is sufficient if defense counsel articulates that the police misconduct might or could have occurred. The
court says that in light of Warrick, defense counsel won't need to disclose
privileged information. All defense counsel has to do is to simply deny the events claimed by the police.

This greatly aids defense attorneys in our efforts to prevail on Pitchess motions because the courts now are reiterating just how minimal our showing needs to be. If defense counsel decides to disclose privileged information, it can be filed it under seal and
then the court rules on it. The court disapproves Davenport (96 CA4th 255),
and rules that the City Attorney, representing the police officer, is NOT
to get an unredacted copy of the affidavit.

Thisa is a long-awaited and much needed win for California criminal defense lawyers.

Garcia v. Superior Court; 2007 DJ DAR; DJ, 8/10/07; Cal. Supreme Court.

Continue reading "CALIFORNIA CRIMINAL DEFENSE ATTORNEYS MAY FILE SEALED DECLARATIONS IN PITCHESS DISCOVERY MOTIONS" »

August 17, 2007

SAN DIEGO SHERIFF'S DEPUTY GETS SWEETHEART DEAL IN WIFE'S MURDER

EL CAJON, CALIFORNIA – A sheriff’s deputy finally pleaded guilty yesterday – on his third try –to voluntary manslaughter for fatally shooting his wife in the jaw.

Deputy Lowell “Sam” Bryan Bruce wanted the deal offered by prosecutors, under which he would serve 15 years in prison. But El Cajon Superior Court Judge Allan J. Preckel wouldn’t go for it.

“This court will not endorse or become a party to any such agreement,” Preckel said.

Preckel said Bruce could either go to trial or plead guilty in an open-ended agreement under which he could be sentenced to prison for as little as six years or as long as 21 years.

After conferring with his lawyers, Bruce, 40, agreed to plead guilty to a charge of voluntary manslaughter with a firearm in the Dec. 14 slaying of Kristen Maxwell-Bruce, 38, in the Alpine home they shared with their two children and Maxwell-Bruce’s parents and grandfather. He will be sentenced Oct. 24.

“I shot . . . my wife which resulted in her death,” Bruce wrote in the plea agreement, which Preckel read in court. Bruce wrote that he “acted in passion” without malice or forethought.

Bruce was originally charged with murder and faced a maximum prison sentence of 40 years to life if tried and convicted.

The charge was reduced last week to voluntary manslaughter by Deputy District Attorney William Gentry.

Preckel said he had no control over the charges filed against Bruce but that the case was particularly egregious because Bruce shot his wife in front of their 4-year-old son.

“The charging decision rests in the sound discretion of the prosecutors,” Preckel said.

In a hearing last week, the judge indicated he would accept a 15-year ceiling on Bruce’s prison term. But he said yesterday he had a “sea change” in his thinking after reviewing the case.

Bruce’s lawyers, Henry Coker and Stewart Dadmun of the county Public Defender’s Office, complained in court that Preckel was being unusually harsh on Bruce because of his position in law enforcement. They asked that Preckel recuse himself from the case, but the judge refused.

“We don’t understand why this case is being treated differently,” Dadmun told the judge. “I don’t want to see my client treated worse because he’s a deputy sheriff.”

Until he was suspended after the shooting, Bruce worked in detentions and court services and was assigned to the Las Colinas women’s jail in Santee.

Bruce’s lawyers asked to meet with Preckel in his chambers to discuss the case, but Preckel said he wanted everything done in open court, in public view.

In July, Judge Herbert J. Exarhos refused to accept the plea agreement, saying it appeared Bruce was receiving preferential treatment because of his job with the sheriff’s department.
Exarhos said the disparity was too great between the 15-year term prosecutors were offering Bruce and the 40-year to life sentence he was facing when he was still charged with murder.

Prosecutor Gentry said outside the courtroom that he reduced the charge to voluntary manslaughter after reviewing the evidence because the shooting happened during a heated argument. A murder charge would require proof that Bruce had planned to shoot his wife, the prosecutor said.

At an Aug. 7 hearing, Preckel delayed ruling on the proposed plea agreement to allow Maxwell-Bruce’s parents to be present. The parents called the judge during a break in the hearing to express their opposition to the plea agreement.

The parents, Jim and Kay Maxwell, filed a legal claim in June against the Sheriff’s Department and others seeking an unspecified amount of money. The claim, a prelude to filing a lawsuit, said the behavior of deputies and paramedics responding to the shooting contributed to their daughter’s death.

Note: Can someone please tell me why a veteran cop get the taxpayers to pay for his public defender? The last time I asked Judge Exarhos for just a few thousand dollars to assist the defense of a 72-year-old innocent, elderly, and jailed client, he refused the request.

Didn't this cop make more than $50,000 to $70,000 per year, for 15-20 years, before he executed his wife? And we are paying for this expensive defense, while innocent clients are denied assistance?

The "righteous indignation" of these judges is quite transparant. It's all political.

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August 16, 2007

CARLSBAD DUI CHECKPOINT SCHEDULED

CARLSBAD ---- The city's police department will hold a DUI/driver's license checkpoint Friday evening on Palomar Airport Road east of El Camino Real.