October 31, 2007

SAN DIEGO CRIME LAB EMPLOYEE TESTIFIES FALSELY; SAN DIEGO DUI ATTORNEY DEMANDS PROSECUTION

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"

October 31, 2007

SAN DIEGO JUDGE JOHN EINHORN REVERSED AGAIN

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

October 31, 2007

USING CHILDREN AS DECOYS TO SMUGGLE DRUGS WILL GET DEFENDANTS MORE TIME

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.


October 31, 2007

NINTH CIRCUIT SETS OUT PARAMETERS FOR USE OF FORCED MEDICINE ON INCOMPETENT DEFENDANTS

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).

October 31, 2007

PENNSYLVANIA RULES THAT SEARCH WARRANT FOR COMPUTER WAS OVERBROAD

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):

October 31, 2007

RACE-BASED SURVEILLANCE OF SHOPPERS IS ACTIONABLE UNDER 42 U.S.C. SEC. 1981

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)

October 31, 2007

CALIFORNIA TRIAL COURTS SHOULD SENTENCE DEFENDANTS - NAPA COUNTY, CALIFORNIA, TRIAL COURT REVERSED FOR REFUSING DEFENDANT'S REQUEST

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

October 31, 2007

SAN DIEGO JUDGE JOHN S. EINHORN REVERSED IN SEX CASE

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.

images.jpg

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

October 30, 2007

DEFENDANT CAN PROVIDE EVIDENCE OF STANDING TO CHALLENGE A SEARCH WITH HIS OWN TESTIMONY

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.

October 29, 2007

MARINE ARRESTED AFTER SUSPECTED CARLSBAD DUI ACCIDENT

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.

October 24, 2007

EXPERT TESTIMONY NOT REQUIRED TO PROVE CHILD PORNOGRAPHY

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.

October 24, 2007

October 23, 2007

SAN DIEGO COUNTY CIVIL LIABILITY REVERSED FOR "AMERICAN BEAUTY" CONVICTED OF MURDERING HUSBAND

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

October 23, 2007

WELFARE FRAUD CANNOT RAISE A PETTY THEFT TO A FELONY IN CALIFORNIA

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

October 23, 2007

CALIFORNIA COMMISSION ON THE FAIR ADMINISTRATION OF JUSTICE RECOMMENDS ACCOUNTABILITY OF PROSECUTORS AND CRIMINAL DEFENSE LAWYERS

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

October 22, 2007

NINTH CIRCUIT COURT OF APPEALS SAYS JUDGES NEED NOT SPECIFICALLY IDENTIFY THEIR REJECTION OF SEC. 3553 FACTORS

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).

October 22, 2007

NINTH CIRCUIT SAYS CALIFORNIA'S STATUTORY RAPE LAW IS NOT A PER SE CRIME OF VIOLENCE

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).

October 21, 2007

POLICE OFFICER'S USE OF DEADLY FORCE CAN'T BE CAUSED BY OFFICER'S UNREASONABLE ACTS

Unreasonable deadly force can be unreasonably precipitated by officers such that summary judgment should be denied. Hastings v. Barnes, 2007 U.S. App. LEXIS 24446 (10th Cir. October 18, 2007)* (unpublished):

Deadly force is reasonable under the Fourth Amendment if a reasonable officer in the defendant's position would have had probable cause to believe there was a threat of serious physical harm to himself or others. Jiron, 392 F.3d at 415; see also Tennessee v. Garner, 471 U.S. 1, 11-12 (1985). Therefore, an officer's use of deadly force in self-defense is not unreasonable under the Fourth Amendment. Romero v. Bd. of County Comm'rs of the County of Lake, Colo., 60 F.3d 702, 704 (10th Cir. 1995).

At the moment of the shooting, Todd was advancing toward Barnes and Davis with the sword. Thus, when Barnes and Davis shot Todd, they were acting in self-defense and, viewed in isolation, the shooting was objectively reasonable under the Fourth Amendment. Hastings does not dispute this conclusion. Rather, he argues Barnes and Davis' actions preceding the shooting precipitated their need to use deadly force, thereby rendering their use of such force unreasonable.

The reasonableness of the use of force depends not only on whether the officers were in danger at the precise moment they used force but also on whether the officers' own conduct during the seizure unreasonably created the need to use such force. Jiron, 392 F.3d at 415; see Medina v. Cram, 252 F.3d 1124, 1132 (10th Cir. 2001); Allen v. Muskogee, Okla., 119 F.3d 837, 840 (10th Cir. 1997); Sevier v. City of Lawrence, Kan., 60 F.3d 695, 699 (10th Cir. 1995). However, only reckless and deliberate conduct that is immediately connected to the seizure will be considered. Medina, 252 F.3d at 1132. In other words, mere negligent conduct or conduct attenuated by time or intervening events is not to be considered. Sevier, 60 F.3d at 699 n.8.

Our review of the record convinces us that whether Barnes and Davis' actions unreasonably precipitated their need to use deadly force calls for a jury determination. But, viewing the facts in the light most favorable to Hastings, a constitutional violation occurred. Todd was not a criminal suspect. He was a potentially mentally ill/emotionally disturbed individual who was contemplating suicide and had called for help. Rather than attempt to help Todd, Barnes and Davis crowded themselves in Todd's doorway (leaving no room for retreat), issued loud and forceful commands at him and pepper-sprayed him, causing him to become even more distressed. 8 At the time they pepper-sprayed him, Todd was not verbally or physically threatening them. At least one of the officers heard Todd say "'help me'" or "'they are coming to get me.'" (R. App. at 210.) Although Todd had a sword, his stance, at least up until the time he was pepper-sprayed, was defensive not aggressive, posing no threat to anyone but himself. A reasonable jury could find that under these facts Barnes and Davis' actions unreasonably escalated the situation to the point deadly force was required.

October 20, 2007

CALIFORNIA COURT ANNOUNCES NEW "KNOCK AND TALK" DOCTRINE: THE FOURTH AMENDMENT SHRINKS AGAIN

The California Supreme Court resolved one issue in this strange case earlier this year. (See, Rivera, 41 Cal.4th 304.) But other issues were left undecided. The Court resolves them here.

FACTS: There was an anonymous tip that the defendant was at a home. The police didn't corroborate the tip, went to the home, got consent to enter from the homeowner (not the defendant), and found the defendant in a small shed in the backyard.

The police asked the defendant his name. They asked if he had any weapons. The defendant said he had a knife under his clothing. Smart, really smart!

The Supremes had held that the police don't have to corroborate an anonymous tip to approach a residence and ask for consent to search. This is the new "knock and talk" doctrine.

So, what's leftt? The Court rejects the argument that the police have to advise persons in the residence that they are free to decline to speak to the police. The Court rules that the police were lawfully in the backyard. They rule that looking inside the shed didn't violate the defendant's privacy. They say the police questions weren't an interrogation and the defendant could have declined to answer (yeah, right!).

People v. Rivera; 2007 DJ DAR 15829; DJ, 10/17/07; C/A 4th

October 20, 2007

CALIFORNIA SEX OFFENDERS CAN GET ARRESTED FOR LIVING TOO CLOSE-WHAT'S LEFT? THE DESERT?

California Supreme Court allows arrests of paroled sex offenders
By DON THOMPSON Associated Press Writer

SACRAMENTO—Parole agents can continue their sweeps of sex offenders who live too close to schools and parks after the state Supreme Court on Monday refused to grant a broad injunction seeking to halt the arrests.

The court previously blocked the state from arresting four parolees who claimed the law is too vague and unfairly punishes offenders after they are released from prison. But in Monday's ruling, the high court refused to expand that ruling and apply it to hundreds of other paroled sex offenders.

The request to block all arrests "is denied without prejudice to the filing of an action for declaratory and injunctive relief in an appropriate superior court," the court said in a one-paragraph order without elaborating.

Parolees' attorneys said they are not immediately sure if they will ask a lower court for that injunction. The Supreme Court is considering whether Jessica's Law is constitutional as it applies to the four parolees, meaning attorneys representing additional sex offenders could simply wait for a decision.

"We have to give it some time to figure what our next move is," said Don Specter, director of the nonprofit Prison Law Office, based in San Rafael.

Parole agents began the sweeps last week under the year-old law, which sets strict residency requirements for recently released sex offenders to keep them away from children. About 850 parolees were in violation.

Gov. Arnold Schwarzenegger ordered agents to start revoking paroles last week, despite the high court's decision to block the arrests of the four sex offenders who were violating the residency requirements.

"My administration will continue to do all we can to implement, enforce and fight challenges to Jessica's Law, which the voters overwhelmingly approved to protect our children and families from sexual predators," the governor said in a statement after Monday's Supreme Court decision.

The California Department of Corrections and Rehabilitation could not immediately say how many offenders have been arrested since the crackdown began, spokesman Seth Unger said.

Jessica's Law, passed with 70 percent support from California voters last November, is named after a 9-year-old Florida girl who was kidnapped, raped and murdered by a convicted sex offender in 2005. It prohibits offenders from living within 2,000 feet of a school or park where children regularly gather.

Supporters went to voters last year after they were unable to get versions passed by the state Legislature. They were prompted by outrage over the housing of sex offenders in hotels near Disneyland and within a half-mile of schools, in violation of an earlier law.

Critics say Jessica's Law is forcing sex offenders to become homeless or move from towns and cities into rural areas because they cannot find housing that meets the law's requirements in more populated areas.

Similar laws in Florida, Iowa and other states also have led to questions over where sex offenders can live once they finish serving their prison sentences.

Sending violators back to prison also could add to severe crowding just as federal judges begin considering limiting the inmate population or releasing some prisoners before they have served their full sentences.


October 19, 2007

NINTH CIRCUIT PROTECTS DEFENDANTS' RIGHTS AT SENTENCING

U.S. v. Soltero, No.6-50257 (10-19-07).

This appeal raises some very interesting sentencing issues. First, the 9th Circuit Court of Appeal finds that the court must ensure that the defendant had read the PSR. The assurances by counsel that "we filed objections..." does not cut it. But as usual, the court holds that even though there is error here, it is harmless error.

Second, the 9th Circuit holds that the condition on supervised release of not associating with a "disruptive group" was too broad. No kidding. Although the court upheld conditions against associating with a specific gang, and with "known
gang members
," the broad prohibition sweeps to widely as it could cover
labor unions and political organizations (or even covens of cops?).

Third, the 9th Circuit holds that it was an abuse of discretion to require the defendant to go by
a surname he never really used ("What's in a name....") So, the next time some court clerk misspells your client's name - thus giving your client and "AKA' he/she never used - make sure you make the court make the clerk fix the record to reflect your client's real name.

Fourth, the 9th Circuit holds that the court can delegate to a probation officer the determination whether a defendant can pay for treatment. This follows U.S. v. Dupas, 419 F.3d 916 (9th Cir. 2005). Dissenting from this, Hawkins argues that Dupas was a "plain error" case. Hawkins would draw a distinction, articulated in the 5th Cir., between a probation officer determining the ability to pay, and the ordering to pay by the court. Here, the order left to the probation officer both functions.

October 18, 2007

CALIFORNIA GOVERNOR SCHWARZENEGGER BLOCKS EFFORTS TO REDUCE FALSE CONVICTIONS

EFFORT TO REDUCE FALSE CONVICTIONS BLOCKED
By Brandon Bailey
Mercury News
San Jose Mercury News

Article Launched:10/18/2007 01:34:13 AM PDT

Former California Attorney General John Van de Kamp blasted law
enforcement groups and Gov. Arnold Schwarzenegger on Wednesday for
blocking legislation aimed at protecting defendants from convictions
for crimes they did not commit.

"I'm embarrassed for the law enforcement community," Van de Kamp said
before convening a public hearing on criminal justice reforms at
Santa Clara University.

Speakers included Rick Walker of East Palo Alto, who spent 12 years
in prison for a murder he didn't do. Walker, who recently obtained a
$2.75 million settlement in a wrongful-conviction lawsuit against
Santa Clara County, said he is starting a non-profit group to help
exonerated prisoners rebuild their lives.

"When I make a mistake, I pay for it," he said. "When the state of
California made a mistake, they made my attorney jump through hoops
to get compensation."

Earlier this year, a commission chaired by Van de Kamp sponsored
three bills that would have set tighter rules for police and
prosecutors by requiring corroboration of testimony by jailhouse
informants, electronic recording of police interrogations in violent
crimes and the creation of new guidelines for lineups and photo arrays.

The California Commission on the Fair Administration of Justice,
created by the Legislature to propose legal reforms, is made up of
judges, police, defense attorneys and prosecutors. But the
legislation was opposed by statewide groups representing police and
district attorneys.

The governor vetoed all three measures last weekend, saying they were
too broad and would unnecessarily tie the hands of investigators and
prosecutors.

"This bill would enact a broad solution to a perceived problem that
arises in very few criminal cases," Schwarzenegger said in a
statement rejecting the bill requiring corroborating evidence to back
up testimony by jailhouse informants.

Scott Thorpe, a spokesman for the state district attorney's
association, said the bill was unnecessary because juries are already
given instructions on how to evaluate such testimony.

But supporters of the measure, including the ACLU and state Senate
Majority Leader Gloria Romero, D-Los Angeles, cited numerous cases of
defendants wrongly convicted after inmates gave false testimony in
exchange for lenient treatment in their own cases.

Van de Kamp, a Democrat and former Los Angeles County district
attorney, said he was especially disappointed because the commission
had modified its proposals to meet law enforcement concerns.

Panelist and retired Santa Clara County district attorney George
Kennedy agreed.

"I think it's good that he gives great weight to the views of law
enforcement," Kennedy said of the governor. "But these bills were
good bills and they were very reasonable."

Local police are already adopting similar policies, added Kennedy,
who predicted the trend will continue but said it would be better to
have consistent rules statewide.

The commission, which is also studying attorney misconduct, the death
penalty and other subjects, heard testimony Wednesday about legal
obstacles faced by people who are wrongly convicted.

California used to provide funding for groups like the Northern
California Innocence Project, based at Santa Clara University's Law
School, but now such groups rely entirely on private donations.

A single case can cost the Innocence Project hundreds of thousands of
dollars to re-examine evidence and pursue appeals, said project
director Kathleen Ridolfi, a Santa Clara law professor. She said her
staff rejects hundreds of applications for every person they agree to help.

Walker, whose conviction was overturned after a family friend dug up
new evidence and brought it to Kennedy's office, said people who are
wrongly convicted suffer mentally and physically in prison. But
unlike parolees, who receive counseling and other state services, he
said exonerated inmates get virtually no support when released.

"We should at least give them the same services that we afford people
who did something wrong," he said.

October 17, 2007

NINTH CIRCUIT REJECTS DEFENDANT'S APPEAL ON CHILD PORNOGRAPHY CONVICTIONS

The defendant's conviction and sentence for receipt or distribution of material involving the sexual exploitation of minors is affirmed over claims that: 1) the district court erred in admitting movie and image files into evidence as the government did not establish that the movie and image files actually depicted a minor; 2) without such evidence, there was insufficient evidence that he possessed authentic material depicting the sexual exploitation of an actual minor; 3) admission of sexually explicit chat logs was irrelevant and unduly prejudicial since he conceded the issue of knowledge; 4) there was not a sufficient factual basis for a sentence enhancement pursuant to U.S.S.G. section 2G2.2(b)(7)(D); and 5) the district court erred by failing to hold an evidentiary hearing to determine the number of images he possessed.

U.S. v. Salcido, No. 06-10546

October 17, 2007

SAN DIEGO POLICE OFFICER RELIEVED OF RESPONSIBILITY IN CIVIL RIGHTS CASE

In a 42 U.S.C. section 1983 civil rights action brought against security guards, San Diego police officers, and the city of San Diego, arising from plaintiff's arrest after she refused to leave Qualcomm stadium, a judgment pursuant to a jury finding for defendants is affirmed where the district court did not err in refusing to give a separate deadly force instruction.

An earlier case's holding that an excessive force instruction based on the Fourth Amendment's reasonableness standard is not a substitute for a deadly force instruction is overruled pursuant to recent Supreme Court precedent.

San Diego Police Officer Gary Hill was a named defendant in this case.

Acosta v. Hill, No. 05-56575

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October 17, 2007

CALIFORNIA COURT OF APPEAL REVERSES CONVICTION FOR FELON IN POSSESSION BECAUSE PRIOR WAS REDUCED TO MISDEMEANOR BEFORE NEW OFFENSE

Here is a case that teaches California criminal defense lawyers to always try to negotiate reduction of a felony to a misdemeaor after a length of successful probation, or just go and ask the court at the end of probation. Your client won't know how important it is, but this case outlines how it can shave years off your client's life.

People v. Gilbreth (2007) , Cal.App.4th
[No. A112477. First Dist., Div. Three. Sep. 19, 2007.]
THE PEOPLE, Plaintiff and Respondent, v. CHRIS THOMAS GILBRETH, Defendant and Appellant.

[Opinion certified for partial publication. fn. * ]

(Superior Court of Solano County, No. VCR 176100, Allan Carter, Judge.)

(Opinion by Siggins, J., with Pollak, Acting P.J., and Horner, J., fn. * concurring.)

COUNSEL

Donald Thomas Bergerson, Under Appointment by the Court of Appeal, First District Appellate Project, for Appellant.

Edmund G. Brown Jr., Attorney General of the State of California, Dane R. Gillette, Chief Deputy Attorney General, Gerald A. Engler, Senior Assistant Attorney General, Catherine A. Rivlin, Supervising Deputy Attorney General, Gregg E. Zywicke, Deputy Attorney General, for Respondent.

OPINION

SIGGINS, J.-

Chris Gilbreth appeals his convictions for voluntary manslaughter and possession of a firearm by a convicted felon. Defendant's principal argument is that his conviction for possession of a firearm by a convicted felon must be reversed because his predicate felony conviction had been reduced to a misdemeanor. We agree with defendant on this point, reverse his conviction for firearm possession, and remand for resentencing. In all other respects we affirm the judgment.


FACTUAL AND PROCEDURAL BACKGROUND
Defendant shot and killed his next-door neighbor, Sheldon Amason, as Amason and his tenant, Ray deVeyra, advanced into defendant's front yard. This was the culmination of a series of incidents that began when Amason moved in next door to the Vallejo home where defendant lived with his pregnant wife and their two-year-old daughter. Defendant's wife testified that Amason threw frequent wild all-night parties, regularly beat his girlfriend, and threatened defendant's family and dogs. On one occasion, Amason waved a machete at defendant's brother-in-law when he was painting a shed in defendant's backyard. Amason's girlfriend's son, Ronnie Faubert, was a {Slip Opn. Page 2} convicted child molester who also lived with Amason. Defendant's wife observed Amason assault Faubert with a weed whacker and a metal pipe. Amason's tenant, Ray deVeyra, also regularly assaulted his girlfriend in view of defendant and his family. Shortly after Amason moved in, defendant bought two handguns to protect himself and his family: a .380 semi-automatic, and a .357 revolver. Defendant and his wife also installed a locking security screen on their front door, and several security cameras.

A few weeks before the shooting, a man threw rocks from Amason's property at defendant's pregnant wife and her friend while they were in defendant's backyard with defendant's daughter. Defendant confronted Amason about the incident, and punched him in the face.

The afternoon of the shooting, Amason got into an argument with another neighbor over whether Amason would move a car that was blocking the neighbor's driveway. Somehow the incident escalated and defendant became involved in the argument. When Amason and deVeyra entered defendant's front yard, defendant drew a handgun and told the two to leave his property. Amason lunged toward defendant, and defendant fatally shot Amason in the chest.

Defendant was charged with murder, with several firearm enhancement allegations, and possession of a handgun by a convicted felon (based on a 1999 conviction for evading an officer). The prosecution argued that Amason may have deserved a good beating, but he did not deserve to die, and that defendant had no right to shoot his intoxicated and unarmed neighbor. Defendant claimed that he was trying to protect his wife and child from his unpredictable and dangerous neighbor, and that he did not intentionally shoot Amason.

The jury convicted defendant of the lesser included offense of voluntary manslaughter, with use of a firearm, and possession of a firearm by a convicted felon. The accounts of Amason's boorish behavior led the trial court at the time of defendant's sentencing to characterize Amason as "the neighbor from hell." Nevertheless, the court considered Amason to be a vulnerable victim due to his intoxicated state at the time of his death, and also determined that the crime involved planning to a three-year lower term for the manslaughter, a four-year consecutive term for the firearm use enhancement, and a consecutive eight-month term for possession of a firearm by a convicted felon, for a total prison term of seven years, eight months. fn. 1 Defendant timely appealed.

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October 16, 2007

NINTH CIRCUIT COURT OF APPEALS REJECTS SUGGESTED REQUIREMENT THAT SENTENCING JUDGES RECONCILE DISPUTES IN SENTENCING MEMOS

The Ninth Circuit has an intriguing little sentencing ruling today in US V Saeteurn, No. 06-10401 (9th Cir. Oct. 15, 2007). Here is how it starts:

This case deals with sentencing practice. Specifically, is the sentencing judge required to resolve disputes regarding facts recited in the Presentence Investigation Report (“PSR”), when those facts do not affect the term of imprisonment imposed, but may affect how the sentence is served, including a possible early release from prison? We hold that there is no such requirement upon the sentencing judge. We also consider whether the sentencing judge imposed a reasonable sentence in this case. We conclude that he did.

October 16, 2007

THE CALIFORNIA FOURTH DISTRICT COURT OF APPEAL HOLDS THERE IS A DEFENSE TO RAPING AN UNCONSCIOUS PERSON; SHE WAS CONSCIOUS

The California Fourth District Court of Appeal here reverses the defendant's conviction for rape of an unconscious person who was actually conscious at the time of the rape.

In this somewhat bizaare case, the defendant was hired to give the victim a massage. While the defendant was massaging the victim, he molested her in various ways: massaging her breasts and inserting his finger in her vagina. She was fully awake and conscious. She just thought this was part of the massage. I'm not kidding.

No, really, I'm not kidding.

When the defendant began to orally copulate her, she finally complained and he stopped.

Okay, I've finally got the idea that something isn't quite right with my shiatzu.

The defendant was convicted of rape by foreign object on an unconscious person (Penal Code sec. 289(d)(3)) and oral copulation on an unconscious person (Penal Code sec. 288a(f)(3)). Now, why they ever charged the defendant with raping a clearly not unsconscious person, well, I'll never know.

There's an extended discussion here about fraud in fact versus fraud in the inducement, but the bottom line is that the victim here was not unconscious, so these convictions can't stand.

People v. Stuedemann; 2007 DJ DAR 15755; DJ, 10/16/07; C/A 4th

October 15, 2007

CALIFORNIA DUI ATTORNEYS: WATCH OUT FOR NEW 2009 PENALTIES

Give Your Clients Good Advice Now on Their New (or Old) DUI Conviction(s) w/ Probation
by Joshua M. Dale, Esq. - http://www.joshdale.com - San Francisco Bay DUI Defense - 10/16/2007. For additional up-to-the-minute DUI information, check out http://california.dui-help.com/

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Beginning in 2009, New Years Day to be exact, drivers on probation for any DUI conviction face zero tolerance if they drive on California highways with a blood or breath alcohol concentration of .01% or higher. On October 14, 2007, the Governor of California signed a number of bills and there is one main one to learn now and advice your clients of appropriately.

New Vehicle Code §§23154 and 13389, and the amended 13353.1, have come to life per AB 1165 introduced by Assembly Member Maze (Coauthors: Assembly Members Sharon Runner and Spitzer) February 23, 2007.

These sections take effect on January 1, 2009 according to the Legislature's enrolled document.

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October 15, 2007

SAN DIEGO DRUNK DRIVING SUSPECT KILLS PASSENGER

October 15, 2007

SAN DIEGO – A young woman was killed Monday morning when the car she was riding in crashed through a fence and into a truck parked at an Interstate 5 viewpoint in Cardiff, authorities said.

The driver of the car, Gina Maria Del Rio, 19, of El Monte was arrested on suspicion of drunken driving and manslaughter, said Officer Tom Kerns, a spokesman for the California Highway Patrol.

The accident occurred around 5:10 a.m. off southbound Interstate 5, north of the Manchester Avenue offramp, Kerns said. The car, a Chevrolet Malibu sedan, crashed through a chain-link fence that separates the viewpoint from the freeway lanes and into a truck with a husband and wife inside. The couple was unhurt.

Del Rio and a front-seat passenger in the car were both wearing seat belts and suffered minor injuries, Kerns said. A 19-year-old Whittier woman riding in back was not wearing a seat belt and was thrown from the rear of the car. She later died at a hospital, Kerns said.
Her name was not released pending notification of her family.

Officers arrested Del Rio and booked her into the Vista jail.

October 14, 2007

CALIFORNIA GOVERNOR SCHWARZENEGGER VETOES BILL TO ENSURE COPS VIDEOTAPE INTERROGATIONS

Gov. Arnold Schwarzenegger on Saturday signed 97 bills and vetoed another 58, creating new laws on everything from the sale of kangaroo skin to protecting endangered condors while halting lawmakers efforts on dozens of other fronts, including giving college aid to illegal immigrants and requiring warning labels on cloned food.

Arguably his most controversial decision, Schwarzenegger signed a bill requiring semiautomatic handguns made and sold in the state to have technology to microstamp each bullet fired from the gun. Supporters say the micro-stamping requirement, the first in the nation, will help police track down criminals.

While Governor Schwarzenegger signed a bill allowing victims of domestiv violence victims to ask judges to grant protective orders for their pets, he was not so merciful to potentially innocent suspects who might be coerced into providing a false confession to police while under defense.

Governor Schwarzenegger vetoed a bill that would have forced police investigators to record interrogations of suspects in homicides and violent felonies. Proponents said the measure would have eliminated disputes about what actually happened during interrogations.

In his veto message, Schwarzenegger said that while reducing the number of false confessions was a laudable goal, recording every interrogation would put unnecessary restrictions on officers. "I cannot support a measure that would deny law enforcement the flexibility necessary to interrogate suspects in homicide and violent felony cases when the need to do so is not clear," he wrote.

In short, Schwarzenegger submitted to the will of law enforcement who made excuses that making them press a button on a tape recorder to ensure the accuracy of the interrogation would be too onorous. Ensuring that suspects - some of whom may be innocent - would not be coerced ito giving false confessions that could ruin their lives, was not a worthy consideration.

We can expect more false and coreced confessions in the future.

October 13, 2007

WHEN IS A PRIOR REALLY A PRIOR IN THE NINTH CIRCUIT?

United States v. Vidal, __ F.3d __, 2007 WL 2937015 (9th Cir. Oct. 10, 2007), decision available here.

In 1994, Vidal plead in a California state court to “unlawful driving or taking of a vehicle,” a violation of Cal Veh. Code § 10851(a). This was a “West” plea, no facts about the crime were admitted, and there was no transcript. Vidal was charged with and plead to federal illegal reentry charges. At sentencing, the district court imposed an eight-level specific offense adjustment because Vidal had an “aggravated felony”.

The Court addressed the following issue: “[W]e consider whether a prior conviction for a violation of section 10851(a) qualifies as an aggravated felony within the meaning of USSG § 2L1.2(b)(1)(C) and 8 USC § 1101(a)(43)(G), which includes within the group of aggravated felony offenses ‘a theft offense (including receipt of stolen property) or burglary offense for which the term of imprisonment [is] at least one year.” Id. (footnote omitted).

The Court held that “In sum, because section 10851(a) extends to accessories after the fact and because the generic theft offense only reaches principals and other similar offenders, we cannot conclude that the ‘full range of conduct’ covered by this California statute would sustain a generic theft conviction.”

Further, “Because he did not plead guilty ‘as charged,’ and because we lack a memorialization of the terms of his plea bargain or even a judgment of conviction, the paltry record before the district court does not eliminate the possibility that Vidal was convicted as an accessory after the fact to theft, which we have concluded does not fall within the generic theft offense.”

Vidal is important because it illustrates that the defense needn’t point to an actual prosecution to prevail under a “categorical analysis” challenge. Vidal is also an important case because Judge Paez carefully surveys the permissible – and impermissible – evidence that can be used in the modified categorical analysis. A charging document, written plea agreement, transcript of a plea colloquy, and any explicit fact-finding by the judge to which the defendant agreed – all fair game. A minute order, a presentence report – they don’t cut it (indeed, the PSR can’t be used at all in the analysis.)

October 12, 2007

CIVIL RIGHTS PLAINTIFF CAN STATE A CLAIM FOR POLITICALLY RETALIATORY ARREST

In a fascinating opinion with slightly frightening facts, the United States District Court for the Western District of Wisconsin has held that a Plaintiff stated a claim that his stopping and ticketing by police officers was based on political motives and lacked probable cause. Gullick v. Ott, 2007 U.S. Dist. LEXIS 75134 (W.D. Wis. October 9, 2007).

Here's a portion of the opinion:

As a general proposition, the court of appeals has rejected defendant's argument. Generally, it makes no difference whether the defendant could have taken an adverse action against the plaintiff for a legitimate reason. If the actual reason was the plaintiff's exercise of a constitutional right, the defendant may be held liable for retaliation under § 1983. Vukadinovich v. Board of School Trustees of North Newton School Corp., 278 F.3d 693, 699 (7th Cir. 2002). See also Crawford-El v. Britton, 523 U.S. 574, 577, 594 (1998) (in First Amendment retaliation case, rejecting "proposal to immunize all officials whose conduct is 'objectively valid,' regardless of improper intent"); Balderston v. Fairbanks Morse Engine Division of Coltec Industries, 328 F.3d 309, 323 (7th Cir. 2003) (in discrimination case, refusing to consider alleged deficiencies of plaintiff when there was no evidence that those deficiencies actually influenced decision maker in terminating plaintiff).

As will be discussed further below, in almost every case involving retaliation, the defendant advances an objective reason for taking the adverse action against the plaintiff. Never has the court of appeals suggested that a defendant may avoid liability simply by identifying a theoretical justification for his conduct. Even in the prison context, where First Amendment rights are at their weakest, the court of appeals has made it clear that motive matters. E.g., Hasan v. United States Dept. of Labor, 400 F.3d 1001, 1006 (7th Cir. 2005). In other words, an official may not take refuge in a pretextual justification that in fact had nothing to do with his actions.

On its face, this rule makes perfect sense. If probable cause acts as an absolute bar for any retaliation claim against a police officer, this would provide immunity for even the most egregious examples of selective enforcement. And yet, more than 120 years ago, the Supreme Court held that even a statute that is valid on its face may not stand if it is enforced in a discriminatory fashion. Yick Wo v. Hopkins, 118 U.S. 356 (1886). Thus, the consequences of accepting defendant's argument are troubling because it would permit unethical officers to target their enemies or critics with a litany of citations for petty violations that would be ignored if committed by anyone else. Mark A. Edwards, Law and the Parameters of Acceptable Deviance, 97 J. Crim. L. & Criminology 49, 87 (Fall 2006) (arguing that risk of selective enforcement is greatest when conduct is "formally illegal" but within zone of "acceptable deviance," such as driving several miles an hour over speed limit). If, as the Court has observed, "the Constitution prohibits selective enforcement of the law based on considerations such as race," Whren v. United States, 517 U.S. 806, 813 (1996), it follows that the Constitution equally prohibits selective enforcement because of an exercise of a constitutional right.

Defendant could not complain that a witness told of conversations between her and the defendant over the jail telephone which led to obtaining the jail tapes. Also, the court assumed he had standing to challenge a search of his girlfriend's apartment which he was a casual visitor to, but she clearly consented. [He clearly did not have standing.] United States v. Plummer, 2007 U.S. Dist. LEXIS 75258 (W.D. Pa. October 10, 2007).*

Immigration checkpoint stop quickly turned into reasonable suspicion. The first part of the stop lasted only 60-90 seconds. United States v. Hinojosa-Echavarria, 2007 U.S. App. LEXIS 23712 (5th Cir. October 9, 2007)* (unpublished).

Defendant's arrest led to a spontaneous admission and officers observing a blood trial in his apartment. Defense counsel was not ineffective for not challenging a futile motion to suppress. United States ex rel. Brown v. McCann, 2007 U.S. Dist. LEXIS 74927 (N.D. Ill. October 5, 2007).

October 10, 2007

COLORADO SCHOOL BEGINS SEARCHING STUDENTS' CELL PHONES FOR TEXT MESSAGES

The ACLU of Colorado is threatening to sue Colorado school district for its practice of searching student cellphone text messages. it seems that the school district is searching and transcribing students' text messages, and the ACLU complains that this violates a Colorado statute enacted to ensure the privacy of telephonic and electronic communications.

The statute the ACLU assets is being violated makes it a felony to read, copy, or record a telephone or electronic communication without the consent of the sender or receiver. The ACLU also contends that the cell phone searches at Monarch High School also violate state and federal constitutional provisions that forbid unreasonable searches and seizures.

The ACLU apparently learned of the offending actions at the end of last school year after receiving complaints from parents and students. The searches are alleged tohave begun after a student accused of smoking cigarettes was sent to an administrator’s office. After a search of the student’s pockets and backpack turned up nothing, the administrator searched the student’s cell phone. The administrator interrogated the student about text messages the administrator characterized as “incriminating.”

With names of other students obtained from the student’s text messages, administrators called in additional students, questioned them, and also searched their cell phones. With names obtained in this second wave of questioning administrators then called in a third round of students and questioned them. Transcripts of cell phone messages were placed in the disciplinary files of multiple students, according to the complaints.

This case cannot square with the strict requirements of New Jersey v. TLO, in this writer's opinion.

October 8, 2007

CALIFORNIA FOURTH DISTRICT COURT OF APPEAL MAKES UP A "DATING RELATIONSHIP" FROM NOTHING: YET ANOTHER RESULT-ORIENTED DECISION

What defines a dating relationship for the purposes of Penal Code sec. 243(e)(1)

The defendant was convicted of Penal Code sec. 243(e)(1), battery on a significant
other. The only problem is: there was no evidence that the two had a dating relationship. None. Nada.

Nada problemo says the California Fourth District Court of Appeal. Let's, figure it out. Okay, people, comes with me on a magical mystery tour...

Let's see, the defendant eferred to the victim as "my girl," and "my lady friend." He testified
that he was scared about having the police come because "here come the shit again in my life," which the Court of Appeal weirdly says permits the inference that his relationship was sufficiently intimate that he would face another domestic violence charge.

Oh, and he told a guy who tried to intervene in the dispute to "mind his own fucking business." Wow! That's the clincher. Say what? (hmm, hmmm, hmm, the magicl mystery tour!)

See, that permits a reasonable inference that the matters between the defendant and the victim were private, personal matters, not events between social acquaintances in an
ordinary context.

Give me a break.

People. v. Upsher; 2007 DJ DAR 15452; DJ, 10/8/07; C/A 4th

October 5, 2007

IF COPS CAN GET A SEARCH WARRANT, THERE IS NO EXIGENCY IN MINNESOTA DUI CASES

A Minnesota Court of Appeal had held that the availability of a telephonic search warrant nullified the state's exigency argument in a DUI case for warrantless blood draw. State v. Shriner, 2007 Minn. App. LEXIS 130 (October 2, 2007)

"The question then becomes whether in this proceeding there are factors, together with the suspected presence of alcohol, that constitute exigent circumstances sufficient to justify the warrantless blood draw. We employ a totality-of-the-circumstances approach. Here, Shriner was arrested at her vehicle one-half mile from Fairview Ridges Hospital. Officer Yakovlev quickly transported Shriner to that hospital and a blood draw was made less than 45 minutes after she was last in the driver's seat of her vehicle. He did not give her the implied-consent advisory or seek her consent to the draw. Officer Yakovlev did not believe that Shriner was injured, did not have responsibility for any other person injured as a result of the accident, and did not have a crime scene that required his attention. He was able to focus on acquiring evidence of Shriner's intoxication. Based on a two-hour rule to establish guilt under Minn. Stat. §§ 169A.20, subd. 1(5) (2004), and 609.21, subd. 2b(4) (2004), the question becomes whether a warrant could reasonably have been obtained within a timeframe that would not have compromised the test results."

In Minnesota police officers can go directly to a judge for search warrants, thus bypassing the deputy district attorney. In this case, it was evening. Minnesota law authorizes the use of telephonic warrants..

Note: In San Diego, there is always a deputy district attorney and a judge "on call" all night long to telephonically conference with police officers on warrants. Given this fact, San Diego DUI lawyers should always attack a search in DUI cases where officers force their way into a suspect's home claiming "exigency." California DUI lawyers should check their local procedures to see if they can use the theory in this cse to challenge exigency searches.

October 4, 2007

LOS ANGELES SHERIFF'S DEPUTIES ENGAGE IN ARREST "CONTEST"

Los Angeles Sheriffs Deputies are at it again. They just can't seem to play it straight. Now they are challenging each other to arrest as many people as they can, stop as many people as they can, and impound as many cars as possible. Will the madness ever stop?

Southeast L.A. competitions were meant to boost morale, official says. Baca calls them a well-meaning but ill-conceived idea.

By Scott Glover and Matt Lait, Los Angeles Times Staff Writers

October 4, 2007

Participating in sports such as football, weightlifting and boxing has long been part of the culture within the Los Angeles County Sheriff's Department. But deputies have recently been playing some new games -- on-duty enforcement competitions that have police watchers across the country crying foul.

One recent competition, described in an internal Sheriff's Department e-mail obtained by The Times, was called "Operation Any Booking." The object was to arrest as many people as possible within a specific 24-hour period.

Other one-day competitions have included "Operation Vehicle Impound," a contest aimed at seizing as many cars as possible. And another challenged deputies to see how many gang members and other suspected criminals could be stopped and questioned.

The prize for winning was nothing more than "bragging rights," said Lt. James Tatreau, who helped organize the events that involved teams of deputies patrolling the southeast Los Angeles cities of Lakewood, Bellflower, Paramount, Artesia and Hawaiian Gardens. The station is one of 23 that make up the nation's largest sheriff's department.

"It's just a friendly competition to have a little fun out here," Tatreau said. It was Tatreau who sent the e-mail about the booking contest Aug. 15. Tatreau said he viewed the games, which began in July, as a morale booster for overworked deputies who, because of staffing shortages, are required to work four overtime shifts a month.

But police accountability experts, civil libertarians and defense attorneys condemned the practice, saying that it trivialized traumatic encounters such as arrests and having a car impounded, and raised questions about deputies' motives in taking such actions.

Hubert Williams, president of the Washington, D.C.-based Police Foundation, which promotes innovative policing strategies, called the competitions "highly problematic and inappropriate."

"The arrest is one of the most potent tools in the possession of law enforcement and should be used with great thought," Williams said. "It's not a competition or a game."

Others, including Los Angeles County Public Defender Michael P. Judge, worried that the games might also prompt deputies to make illegitimate arrests to boost their statistics.

"Certainly, it calls into question whether there was a legitimate reason to book any of the people who were booked during the time of the competition," Judge said.

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October 4, 2007

CALIFORNIA COURT: THERE IS NO VIOLATION OF PROBATION IF YOU FAIL TO REPORT AFTER YOU ARE DEPORTED

The defendant here was convicted, given probation, ordered to serve a year in the county jail. He was also ordered to report to probation within 24 hours of his release from jail, or, if he was deported, within 24 hours of his reentry into the US. Of course, it's rather absurd to think if he snuck back in after his deportation that the first thing he would do is go report himself, but that's another story.....

The defendant was deported, reentered and, of course, never reported. There's a case saying that on these facts a defendant can have his probation violated. (Campos, 198 CA3d 917.) This California COurt of Appeals disagrees. They point out that no one knows when the defendant reentered, so there's no evidence that the defendant failed to report to probation 24 hours after his reentry.

The def. did fail to report 24 hours after his release, but the Court of Appeals says that when the government deported him, the government made reporting impossible. They rule that a violation of probation may only be found if the violation was willful, which it wasn't here.

People v. Galvan; 2007 DJ DAR 15161; DJ, 10/1/07; C/A 2nd, Div. 3

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October 4, 2007

SAN DIEGO DUI DEFENDANT WHO SEVERED MAN'S ARM GETS FIVE YEARS IN STATE PRISON

October 4, 2007

VISTA – A DUI motorist responsible for a crash that severed the arm of the groom for the champion racehorse Lava Man was sentenced Thursday to five years in state prison. Heriberto Castillo, 24, pleaded guilty last month to driving under the influence of alcohol causing injury and great bodily injury to Noe Garcia.

The crash happened on July 23 on Interstate 5 in Del Mar. Castillo was arrested by a Carlsbad police officer who had been warned to watch for a red Camaro with front-end damage.
“The injury (the defendant) caused me – and my family – is great,” Garcia told Vista Superior Court Judge K. Michael Kirkman via a Spanish interpreter. “Because of that I lost my job. I lost my arm. I am not well physically or psychologically. My children and my wife are greatly affected by this.”

Prosecutor Rick Watson told the judge “this was one of the worst cases” of drunk driving that one could imagine.

The defendant had a blood-alcohol level of .19 percent when tested after his arrest, Watson said. The state limit is .08 percent.

Garcia, 39, was in need of a prosthetic arm that would cost $65,000, far more money than he had available, according to the prosecutor.

The victim cared for Lava Man for three years before the crash. During that time, the thoroughbred twice won the Santa Anita Handicap and last year was first in the Pacific Classic – the premiere race at the Del Mar Racetrack.

The horse fell to sixth in this year's edition of the local race, which took place a couple weeks after Garcia was injured.

Castillo, who rented a room in Oceanside and worked in a cafe in Vista, had been in this country illegally for about five years, according to a report filed by the county Probation Department.

The defendant also had a baggie of marijuana with him and was driving without a license, the report stated.

Also speaking through a Spanish interpreter, the defendant asked for forgiveness from Garcia and his family.

“I understand that he has suffered tremendous pain,” said Castillo, who had no prior criminal record.

October 4, 2007

SAN DIEGO DUI DEFENDANT WHO SEVERED MAN'S ARM GETS FIVE YEARS IN STATE PRISON

October 4, 2007

VISTA – A DUI motorist responsible for a crash that severed the arm of the groom for the champion racehorse Lava Man was sentenced Thursday to five years in state prison. Heriberto Castillo, 24, pleaded guilty last month to driving under the influence of alcohol causing injury and great bodily injury to Noe Garcia.

The crash happened on July 23 on Interstate 5 in Del Mar. Castillo was arrested by a Carlsbad police officer who had been warned to watch for a red Camaro with front-end damage.
“The injury (the defendant) caused me – and my family – is great,” Garcia told Vista Superior Court Judge K. Michael Kirkman via a Spanish interpreter. “Because of that I lost my job. I lost my arm. I am not well physically or psychologically. My children and my wife are greatly affected by this.”

Prosecutor Rick Watson told the judge “this was one of the worst cases” of drunk driving that one could imagine.

The defendant had a blood-alcohol level of .19 percent when tested after his arrest, Watson said. The state limit is .08 percent.

Garcia, 39, was in need of a prosthetic arm that would cost $65,000, far more money than he had available, according to the prosecutor.

The victim cared for Lava Man for three years before the crash. During that time, the thoroughbred twice won the Santa Anita Handicap and last year was first in the Pacific Classic – the premiere race at the Del Mar Racetrack.

The horse fell to sixth in this year's edition of the local race, which took place a couple weeks after Garcia was injured.

Castillo, who rented a room in Oceanside and worked in a cafe in Vista, had been in this country illegally for about five years, according to a report filed by the county Probation Department.

The defendant also had a baggie of marijuana with him and was driving without a license, the report stated.

Also speaking through a Spanish interpreter, the defendant asked for forgiveness from Garcia and his family.

“I understand that he has suffered tremendous pain,” said Castillo, who had no prior criminal record.

October 2, 2007

PROBATION CAN MAKE DEFENDANT ON SUPERVISED RELEASE PROVIDE A DNA SAMPLE

US v. Lujan, No. 02-30237 (10-2-07).

The government extracts its pound of flesh, and the probation office joins in with a blood sample. This is a challenge to the DNA collection on supervised release. The defendant's supervised release terms did not include DNA sample collection. The DNA Act came into effect, and she challenged collection.

Alas, the 9th Circuit holds that Kincade, 379 F.3d 813 (9th Cir. 2004) (en banc) and Reynard, 473 F.3d 1008 (9th Cir. 2007) control. Reynard rejected an ex post facto challenge and Kincade rejected a Fourth Amendment challenge. The analysis in Reynard also forecloses a bill of attainder (punishment) challenge. The 9th Cirxuit, finally, also dismisses the separation of powers argument.

October 1, 2007

CALIFORNIA COURTS ALLOW COPS - AGAIN - TO WHITTLE AWAY MIRANDA

The California courts saddle us yet again with another Miranda travesty. This time, they allow detectives - with the sleek use of semantics - to whittel away this defendant's Miranda rights.

The defendant in this case was read his Miranda rights. Then he asked asked the police how long it would take for an attorney to get there if he asked for one. The Court of Appeal - in yet another result-oriented decision - assures us that this is not an
unequivocal assertion of the right to counsel. Therefore, the later statement provided by the defendant is just fine.

What was the response of the police when the defendant said he couldn't afford a lawyer? The police said the court would appoint one for him. When the defendant asked how long that would take, the police answered, "When you go to court."

People v. Simons; 2007 DJ DAR 15164; DJ, 10/1/07; C/A 3rd