California Criminal Lawyer Blog

When I last posted in the Dirty Tricks in the Crime Lab Section, I told you about how San Diego Superior Court Judge Mike Smyth - when he was a chief prosecutor at the San Diego Office of the City Attorney - had written to the San Diego Sheriff's Department in 1995 complaining that San Diego Sheriff's lab analyst Belen Hebreo testified incompetently in DUI cases. Ms. Hebreo even testified in a murder case I handled. No one ever told me about the hidden truths about Ms. Hebreo's historically false testimony.

Nothing was done, the complaint was ignored, and Smyth and his coven of unethical prosecutors continued to use Ms. Hebreo without a single prosecutor ever alerting defense attorneys about her false testimony. I found out about it fully 11 years after Smyth, now a judge, wrote that damning letter.

Now, San Diego DUI Defense Attorney Michael Fremont is making claims that a San Diego Police Department lab criminalist testified falsely in the case of People v. Poitrowski.

In a letter obtained by me from Fremont to San Diego District Attorney Bonnie Dumanis, dated October 29, 2007, Fremont asks Dumanis to charge San Diego Police Department criminalist Larry Dale with perjury because "he did not tell the truth as to the ASCLAD accreditation for the crime of breath testing."

He goes on to say "The statement made by Dale on direct that 'every part of the lab has been accredited in terms of how they do business, under ASCLAD' was in fact false and constitutes perjury. An investigation should be opened and he should be charged."

Fremont has not yet received a response from Ms. Dumanis.

Note: When it was revealed that former San Diego Sheriff's department criminalist Ray Cole had falsified his resume to include that he had earned a degree in pre-medicine, neither DA Dumanis nor San Diego City Attorney Mike Aguirre took action, even though Cole had testified in hundreds - if not thousands - of DUI, DUI w/injury and DUI homicide cases over more than 15 years. Can we expect anything more from this new allegation? Don't hold your breath. Prosecutors in San Diego stand by the old addage "the ends justify the means." In other words, "whatever it takes to win"

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Posted In: Bad Cop - No Donut , DUI Defense , Dirty Tricks in the Crime Lab , Prosecutorial Misconduct

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In yet another reversal fro San Diego Judge John Einhorn, the California Court of Appeal, Fourth District, Division One, said because the prosecution did not fully utilize Penal Code section 1334 et seq. (Uniform Act to Secure the Attendance of Witnesses from without the States in Criminal Cases) by requesting that a witness be taken into custody even though the witness had made it clear she would not appear, it did not show due diligence.

San Diego Judge John S. Einhorn erred in allowing the government to introduce prelim testimony. What, Judge Einhorn helps the prosecution to convict a defendant? Sound familiar? We can always count on Judge Einhorn to help the prosecution (unless the prosecution is being prosecuted, like his dear friend Mr. Loganbach).

Code of Civil Procedure section 1219, subdivision (b), which restricts the court's power to use incarceration to compel testimony of a sexual assault victim does not affect the court's power to order that a victim of a sexual assault be brought before it or seek that the witness be taken into custody.

People v. Cogswell (C.A. 4th, 10/31/07, D049038) 07 C.D.O.S. 12668

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Posted In: California Cases , Evidence , In The News , Judicial Misconduct Cases

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US v. Preciado, No. 06-50649 (10-31-07).

In this case the 9th Circuit Court of Appeal examines an enhancement for "use of a minor" in the context of smuggling drugs across the border.

The defendant agreed to drive 150 pounds of marijuana across the border, and weeks later picked up the van with several of her children accompanying her. The youngest (age 2) was left with a sister. The defendant was caught at the border.

The 9th circuit affirmed the District Court's enhancement because the court did not err in finding that the children were used as decoys and were not just along for the ride or there because of necessity. The defendant had notice, this was planned, and there was available child care or someone to look after the children.

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Posted In: Federal Cases

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This is an important opinion on Sell forced medication. The defendant faced a 1326 charge, but was found incompetent. The government sought forced medication under Sell v. U.S., 539 US 166 (2003) and the district court granted the motion over objections, stating that "the method of treatment and type of medication to be used" was at the "discretion" of doctors within the BOP.

The 9th Circuit Court of Appeal held, in a lengthy analytical opinion, that to pass muster under Sell, the order must identify:
(1) the specific medication or range of medications;
(2) the maximum dosages to be administered; and
(3) the duration of time. In other words, the district court must engage and understand the ramifications of the medication and be conversant; there is no passing the decision to BOP or doctors.

The 9th Circuit stresses the obligation of the court under Sell to monitor and oversee and to give parameters to the doctors in the context of Sell. This also puts the burden on the government to so identify. This opinion also addresses the standards of review for the various Sell factors.

The 9th Circuit identifies the first factor -- the seriousness of the crime -- as a legal issue and thus reviewed de novo, while the other factors, such as governmental interests at stake, are reviewed for clear error.

Finally, the 9th Circuit encourages the district court to undertake a Harper analysis as to dangerousness of the defendant to himself or others first.

US v. Hernandez-Vasquez, No. 06-50198 (10-31-07).

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Posted In: Federal Cases

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In a rare occurrence in the realm of computer searches, a court holds that a computer hard drive seizure was overbroad and the good faith exception was inapplicable.

The government obtained a search warrant for the hard drives of any computers on defendant's ship seeking to prove unlawful discharge from the bilge, but the warrant was deemed overbroad because the hard drives were mirror imaged and completely searched, and not just for discharge information.

The corporate owner of a ship had standing to challenge search of computers on the ship.

United States v. Fleet Management, Inc., 2007 U.S. Dist. LEXIS 79770 (E.D. Pa. October 29, 2007):

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Posted In: U.S.

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The Eighth Circuit has held that a department store's race-based surveillance of African American shoppers was sufficient to support a claim of interference with the ability to contract in a 42 U.S.C. sec. 1981 descrimination suit against the store.

Although the United States Supreme Court has never adressed the applicability of sec. 1981 in the specific context of retail transactions, the court observed, it has recognized the act's prohibition against racial discrimination in all phases and incidents of the contractual relationship.

To establish a prima facie case of discrimination under sec. 1981, plaintiffs in the Eighth Circuit must show: 1) they are members of a protected class; 2) defendants had discriminatory intent; 3) plaintiffs engaged in activity protected by sec. 1981, and; 4) defendants interfered with that activity.

Gregory v. Dillard's, inc., ___F.3d____, 2007 WL 2067852 (8th Cir. 2007)

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Posted In: Civil Rights

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Napa County, California, Judge Stephen T. Kroyer abused his discretion and prejudicially erred in denying a brief continuance so that the judge who heard the trial could conduct the sentencing. Even the poor prosecutor tried to get Judge Kroyer to do the right thing: " I think the court's preference to do it on the day it was scheduled is outweighed by the fact that there is a very strong preference by the judicial system that the trial judge do the sentencing."

Even though a defendant who has been convicted after trial does not have a right to be sentenced by the trial judge (as opposed to a defendant who pleads guilty, see People v. Arbuckle (1978) 22 Cal.3d 749, 746), Judge Kroyer abused his discretion because "it is well recognized that the strongly preferred procedure was for [the trial judge] to impose sentence." Judge Kroyer's decision "was not 'in conformity with the spirit of the law,' and could be said to 'defeat the ends of substantial justice.'" The Court cites to City of Sacramento v. Drew (1989) 207 Cal.App.3d 1287, 1297, Westside Community for Independent Living, Inc. v. Obledo (1983) 33 Cal.3d 348, 355, Department of Parks & Recreation v. State Personnel Bd. (1991) 233 Cal.App.3d 813, 831, fn. 3.

People v. Jacobs (C.A. 1st, 10/31/07, A113633) 07 C.D.O.S. 12754

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Posted In: California Cases

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Because prosecution did not fully utilize Penal Code section 1334 et seq. (Uniform Act to Secure the Attendance of Witnesses from without the States in Criminal Cases) by requesting that witness be taken into custody even thought the witness had made it clear she would not appear it did not show due diligence and San Diego Judge John S. Einhorn erred in allowing the government to introduce testimony.

California Code of Civil Procedure section 1219, subdivision (b), which restricts the court's power to use incarceration to compel testimony of a sexual assault victim does not affect the court's power to order that an alleged victim of a sexual assault be brought before it or seek that the witness be taken into custody.

People v. Cogswell (C.A. 4th, 10/31/07, D049038) 07 C.D.O.S. 12668

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Posted In: California Cases , Discovery , Evidence , In The News , Judicial Misconduct Cases

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In this federal case, the Court reminds the Government of Simmons, that the defendant's own testimony established his standing to challenge the search, contrary to the government's assertions. United States v. Gomez-Vega, 2007 U.S. Dist. LEXIS 79694 (D. P.R. September 20, 2007):

Gomez-Vega testified at the suppression hearing only as to the standing issue. Based on Gomez-Vega's testimony, the Court concluded at the hearing that he had standing to challenge the seized items under the totality of the circumstances and the evidence before the Court. Accordingly, Gomez-Vega met the threshold established in Aguirre and Lochan.

The Court stated "it has been well settled for over twenty years that testimony given to meet standing requirements cannot be used as direct evidence against the defendant at trial on the question of guilt or innocence." United States v. Garcia-Rosa, 876 F.2d 209, 219 (1st Cir. 1989) (citing Simmons v. United States, 390 U.S. 377, 390, 88 S.Ct. 967, 974, 19 L. Ed. 2d 1247 (1968)). Thus, a defendant should have no prejudicial consequence in admitting ownership of the drug or portions thereof to sustain standing to contest its seizure under Fourth Amendment grounds.

Comment: Under Simmons, the defendant has the ability to testify in his own behalf to establish standing, and the testimony cannot be used against him at trial, unless, of course, he testifies at trial and contridicts that standing testimony.

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Posted In: Federal Cases , U.S.

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CARLSBAD ---- A Camp Pendleton-based Marine was arrested Thursday after allegedly crashing into another Marine, leaving the second man injured, Carlsbad police said.

The crash was reported at 10:42 p.m. at the intersection of Carlsbad Boulevard and State Street after suspect Kevin Sullivan, 21, reportedly struck a motorcycle driven by Shawn Redfield, 24, Sgt. Keith Blackburn said.

Redfield suffered injuries including a broken hand, facial injuries and road rash, and was taken by Mercy Air helicopter to Scripps Hospital for treatment, Blackburn said.

Sullivan, who was not hurt, was booked into the Vista jail on suspicion of felony driving under the influence, the sergeant said.

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United States v. Salcido (9th Cir. 10/19/07, 06-10546) 07 C.D.O.S. 12375

In this case, the Ninth Circuit holds that the Government is not required to prove that pictures introduced into eviidence in a child porn case actually depicted minors. The jury must find that the images are of actual children, not computer-generated ones.

In addition to the presenting images themselves to the jury, the police had interviewed the actual child depicted.

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Posted In: Federal Cases

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In case where employee took toxic materials from her employer and used them to murder her husband, trial court ruling that defendant-county could be liable in wrongful death damages, and jury award of damages for plaintiffs, are reversed where:

1) the county coworkers of the perpetrator did not owe a duty to the victim and, therefore, county cannot be held vicariously liable for the coworkers' failure to prevent the murder as the coworkers would not be personally liable;

2) a direct claim against a governmental entity asserting negligent hiring and supervision, when not grounded in the breach of a statutorily imposed duty owed by the entity to the injured party, may not be maintained;

3) federal regulations did not impose a mandatory duty actionable within the meaning of Government Code section 815.6 as they do not command specific acts designed to prevent an employee from using embezzled drugs to commit premeditated first degree murder;

4) the particular kind of injury the plaintiff suffered was not the type of injury that the mandatory duty of section 815.6 was designed to protect against.

de Villers v. Co. of San Diego, No. D048974

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In case where trial court held petitioner to answer a charge of petty theft with a prior, charge is dismissed as welfare fraud conviction under Welfare and Institutions Code section 11483 cannot be used as the prior (theft-related) conviction for a Penal Code section 666 criminal charge of petty theft with a prior

Bradwell v. Superior Ct. (People), No. C054546

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Posted In: Evidence

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The following synopsis from the California Commission on the Fair Administration of Justice on making prosecutors responsible for misconduct (because they never are) is great in theory, but will judges really ever follow it? I don't think so. But we can always hope. Read on...

October 19, 2007

FROM: CALIFORNIA COMMISSION ON THE FAIR ADMINISTRATION OF JUSTICE

CALIFORNIA COMMISSION ON THE FAIR ADMINISTRATION OF JUSTICE ISSUES
REPORT AND RECOMMENDATIONS ON PROFESSIONAL RESPONSIBILITY AND
ACCOUNTABILITY OF PROSECUTORS AND CRIMINAL DEFENSE LAWYERS.

The California Commission on the Fair Administration of Justice,
created by the California State Senate to examine the causes of
wrongful convictions and make recommendations and proposals to
further insure that the administration of criminal justice in
California is just, fair and accurate, released its sixth report and
recommendation today, addressing the problems of professional
responsibility and accountability of prosecutors and criminal defense
lawyers. The Commission concluded there was a serious problem of
underreporting of misconduct and incompetence of prosecutor and
criminal defense lawyers to the California State Bar, and recommended
a new Rule of Court and an amendment of the Canons of Judicial Ethics
to address the problem. The recommended amendment would identify
examples of egregious misconduct that should be reported to the State
Bar by judges, regardless of whether the misconduct resulted in a
modification or reversal of a judgment.

The Commission recommendations gained the full support of twenty
members of the Commission, with two members, District Attorney Jim
Fox of San Mateo County and District Attorney Greg Totten of Ventura
County, dissenting in part. The Commission is chaired by former
California Attorney General John Van de Kamp, and includes a broad
spectrum of prosecution, defense, police and victim representatives.

The Commission's recommendations were based upon reports and research
done for the Commission by Law Professors Laurie Levenson of Loyola
Law School, Larry Benner of California Western Law School, and Cookie
Ridolfi of Santa Clara University School of Law. A public hearing was
convened in Los Angeles on July 11, 2007 to hear the testimony of
experts and representatives of police, prosecutor and criminal
defense agencies.

The Commission will continue its deliberations, examining issues
related to the funding of defense services in California, policies
governing compliance with constitutional requirements for the
availability of exculpatory evidence, and remedies for wrongful
convictions and access to post-conviction testing. The Commission
will also examine the administration of the death penalty in
California, convening hearings next year in Sacramento on January 10,
Los Angeles on February 13, and Santa Clara on March 28. The
Commission is scheduled to issue its final report in June, 2008.

CONTACT: Gerald F. Uelmen, Executive Director

Tel. 408-554-5002
Fax 408-554-5026
Email guelmen@scu.edu

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Posted In: Bad Cop - No Donut , Bad Cop - No Donut , Civil Rights , In The News , Prosecutorial Misconduct

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How far must the federal courts go to justify a sentence? Here, the sentencing court articulated reasons for a sentence within the guidelines. It did not explicitly discuss, or articulate the reasons, for not considering the 3553 factors to impose a lower sentence.

The Ninth Circuit holds that the sentencing court need only to state the reasons for a sentence so imposed, citing Rita v. U.S., 127 S.Ct 2456 (2007) and U.S. v. Plouffe, 445 F.3d 1126 (9th Cir. 2006). It need not, at least here, specifically discuss the rejection of the 3553 factors so long as it considered them.

The Ninth Circuit found that the district court "apparently" considered the mitigating reasons presented by defendant in its stating of the reasons for the guidelines sentence.

But how did they come to that coinclusion? A crystal ball perhaps? This is another example of a result-oriented opinion.

Note; Always try to get your District Court to annunciate specific rejections of valid sec. 3553 factors, and raise the spector that this rejection was unreasonable.

US v. Perez-Perez, No. 06-30341 (10-22-07).

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Posted In: Federal Cases

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The Ninth Circuit Court of Appeals holds that although statutory rape is a per se crime of violence under the sentencing guidelines, the California statute, 261.5(c), is overly broad because it puts the age of consent at 18.

The "common and accepted" definition of the vast majority of states and the model penal code set the age of consent at 16. Siler dissents from this, arguing that statutory rape is defined as sex with a minor, and it is up to the states to set the age. Siler points out that the minority of states that have a different age than 16 include some of the most populous, such as California, Texas, New York, Florida, and Illinois.

US v. Rodriguez-Guzman, No. 06-10585 (10-22-07).

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Posted In: Federal Cases

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