January 31, 2008

CALIFORNIA CRIMINAL LAWYER NEWS: REFUSING TO ANSWER QUESTIONS DURING CROSS EXAMINATION

The co-defendant testified at the suppression motion (Penal Code sec. 1538.5), to facts which would have made the police search illegal.

But the co-defendant refused to answer some things on cross examination.

The Court of Appeal says that striking the co-defendant's testimony was the correct sanction here.

Funny how they don't want to do that when the DA's witness (usually the cop) refuses to answer our questions in cross.

People v. Seminoff; 2008 DJ DAR 1613; DJ, 1/31/08; C/A 4th

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January 29, 2008

CALIFORNIA CRIMINAL DEFENSE LAWYER NEWS: THE MOST BIZAARE KIDNAPPING FOR RAPE CASE - EVER

This case could conceivably become one of the most widely read cases in California. It's crazy. It's juicy. It's XXX-Rated. It's really, really weird.

The Court of Appeal begins by saying, "This is not your garden variety kidnapping and rape case." No kidding.

The victim, Jane Doe, started getting threatening letters, saying the writer of the letters would "fuck up" the victim's family if she didn't comply. With what? With engaging in a truly staggering array of sexual acts with Michael, a co-worker.

Michael claimed he was getting similar letters. Michael told Jane that Tiffany, another coworker, was writing these letters, that Tiffany was psycho, and that they had to comply to avoid having Jane's family being hurt.

Over a seven-month period, and that's not a typo, Jane submitted to a variety of sexual acts with Michael, many of them videotaped (so Tiffany could be sure that Jane was complying,
see?).

The footnotes quoting the letters are beyond X-rated; the funniest part is where the letters say that Jane should make the sex more romantic.

Finally Michael went on vacation, Jane went to the police, and the police immediately realized that Michael was sending the letters. He of course copped out.

The issue is whether there's enough evidence for kidnapping for rape. Yep, the court says there was sufficient movement, since Michael took Jane to the parking lot of a nearby cemetery to engage in many of the sexual acts.

A cemetery parking lot? This guy really was romantic
.

People v. Power; 2008 DJ DAR 1036; DJ, 1/23/08; C/A 4th

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January 29, 2008

PACIFIC LAW CENTER TOOK MONEY AND DID LITTLE WORK, FAMILY SAYS

Family Says Pacific Law Center Took Fees and Didn't Do Work

Defense faults previous lawyers
By Greg Moran
UNION-TRIBUNE STAFF WRITER

January 29, 2008

A judge declined to lower the bail yesterday for Seth Cravens, one of five La Jolla residents charged in the death of surfer Emery Kaunaui Jr. in May.

Cravens, 21, is accused of throwing the punch that killed Kaunaui and is the only one of the five defendants still in jail. His bail is set at $1.5 million.

His new lawyer, Deputy Alternate Public Defender Mary Ellen Attridge, said Cravens' bail should be lowered to a level his family could afford. Attridge said the family paid Pacific Law Center, which employs his previous lawyers, $175,000 to represent him, but Attridge said in court that the firm had done little work that was “usable.”

She said the money the family used to pay for the law firm could have been used toward bail. Her office was appointed to represent Cravens this month after the family fired Pacific Law Center.

The firm has been subject of complaints from lawyers and former clients, most alleging it has huge caseloads, charges large fees and gives poor service.

Superior Court Judge John Einhorn said Cravens' problems with previous lawyers are not the basis for a bail reduction. Bail was reduced once already, Einhorn said.

After the hearing, Robert Arentz, the supervising attorney for Pacific Law Center, defended the firm's work in an e-mail. Arentz said the firm spent more than 1,000 hours on the case, hired experts and met numerous times with the family.

“The work we performed exceeded the amount we were paid to handle the case,” he said.

COMMENT: Bail is to be set at an amount that secures the person will return to court, not at an amount so high that it ensures they will not be able to get out. Let's note that judge here, John Einhorn, was the judge who tried to suppress evidence to help his friend, Peter Longanbach, escape prosecution. Click HERE for link.

And even more recently than the Longanbach debacle, Einhorn was reversed by the Court of Appeal just a few months ago when he failed to protect a defendant's rights. Click Here for link.

And now he is set to sit as trial judge during the re-trial of Cynthia Sommer, whose case was reversed because of ineffective assistance of counsel. Click HERE for link. Ms. Sommer's lawyer was accused of failing to protect his client. However, responibility rests equally with the trial judge, Pete Deddeh, who has one of the highest reversal rates in the California Court of Appeals. Now Sommer will have to deal with another regularly reversed, prosecution oriented jurist.

Oh, I forgot, this started out as a blast to San Diego's mill firm, Pacific Law Center. Click HERE for the San Diego Trinune article outlining the many complaints against the "firm."

Continue reading "PACIFIC LAW CENTER TOOK MONEY AND DID LITTLE WORK, FAMILY SAYS" »

January 29, 2008

PROSECUTORIAL MISCONDUCT, OR NO PROSECUTORIAL MISCONDUCT?

Why did the overworked California Supreme Court grant review on this case? it's because they just couldn't ber that the Court of APpeal reversed a convcition for Prosecutorial Misconduct. So, they granted review to protect the prosecutor.

So, here's what happened. The Cort of Appeal reversed the defendant's convcition because of prosecutorial misconduct.

The California Supreme Court granted review and reversed the Court of Appeal, meaning they affirm the conviction. They restate well-settled appellate rules governing prosecutorial misconduct.

But what important issues did this case present that they wanted to resolve? Which important issues did they in fact resolve? None. The Supremes find that the DA didn't improperly urge
the jury to convict through a guilt by association argument (the defendant is a Catholic priest, convicted of child molestation).

The Supremes find that the DA didn't ask the jurors to stand in the shoes of the victims. They do have to admit that the DA said, "I think his client is guilty." This violates the ban against expressions by the prosecutor of belief in the defendant's guilt. But the Supremes assure us that in context this referred to the evidence presented, not some evidence the DA had that
the jury didn't.

Of course, this is still misconduct, isn't it? Yes. But we must send the message to the prosecutors that the ends DO justify the means; that you CAN commit miscondcut if the case warrant it. Right?

Of course, the Supremes say that any error was waived, and the failure to object wasn't
ineffective, since there might have been valid tactical reasons not to do so.

Remind me again, why did they bother with this case? Oh right, they are so overwhelmed with work that they want to dump death cases on the Court of Appeal.

People v. Lopez; 2008 DJ DAR 1393; DJ, 1/29/08; Cal. Supremes

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January 29, 2008

CALIFORNIA CRIMINAL DEFENSE NEWS: FOURTH DISTRICT COURT OF APPEAL STRIKES DEFENDANT'S TESTIMONY AT SUPPRESSION MOTION AFTER TELLING DEFENDANT IT CAN BE USED AGAINST HIM AT TRIAL: SAY WHAT?

The California Fourth District Court of Appeal holds in this bizaare case that it was not error to strike the defendant's testimony at a suppression hearing where the prosecutor on cross examination went into the merits of the case, not just the search issue, as to how the defendant came to know about the marijuana and what she intended to do with it because it was relevant to her credibility on the suppression motion.

The defense counsel invoked the Fifth Amendment on cross examination, so the trial court struck her testimony. No alternative to striking the testimony was offered by the defense.

People v. Seminoff, 2008 Cal. App. LEXIS 144 (4th Dist. January 29, 2008):

The prosecutor then asked her if she intended to sell the marijuana, and that prompted the same objection from defense counsel. Again, the court overruled the objection. It warned defense counsel that unless Bassett answered the prosecutor's questions, the court would strike her testimony in its entirety. The court then took a short break to allow defense counsel to converse with Bassett.

When the hearing resumed, defense counsel said Basset was willing to proceed with cross-examination on a question-by-question basis. He also indicated that, based on the court's previous rulings, she was willing to answer questions about whether she intended to sell the marijuana.

However, when the prosecutor asked her that question, defense counsel objected on both relevancy and Fifth Amendment grounds. In overruling the objections, the court stated “cross-examination should be allowed to reveal whether or not, among other things, [Bassett] has a coherent credible story about the events involved, whether or not she can remember details, whether or not she has an interest in the outcome.”

The court also told defense counsel that if Bassett continued to invoke her privilege against self-incrimination, it would have no choice but to strike her testimony. When defense counsel responded that Bassett was not going to answer the prosecutor's questions about the marijuana, the court did just that.

Comment: This case does not even cite Simmons that a defendant's testimony at a suppression hearing cannot be used at the trial unless the defendant testifies contrary to it. Here, the trial judge told the defendant that her testimony could be used against her at trial. This case is strange and unsupported under the Fifth and Fourth Amendments, and should be reviewed by the California Supreme Court.

But it won't. It should, at least, be depublished.

Continue reading "CALIFORNIA CRIMINAL DEFENSE NEWS: FOURTH DISTRICT COURT OF APPEAL STRIKES DEFENDANT'S TESTIMONY AT SUPPRESSION MOTION AFTER TELLING DEFENDANT IT CAN BE USED AGAINST HIM AT TRIAL: SAY WHAT?" »

January 27, 2008

CALIFORNIA CIVIL RIGHTS NEWS

Police officers involved in all high-speed chases are entitled to qualified immunity under 42 U.S.C. section 1983 unless the plaintiff can prove that the officer acted with a deliberate intent to harm.

Bingue v Prunchak, (U.S. 9th Cir., Jan. 15, 2008)

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January 24, 2008

CALIFORNIA CRIMINAL DEFENSE LAWYER NEWS: CALIFORNIA SUPREME COURT RULES EMPLOYERS CAN FIRE MEDICAL MARIJUANA USERS

The California Supreme Court has ruled 5-2 in Ross v. Ragingwire Telecommunications that employers may fire workers for using medical marijuana.

Ross gave Ragingwire a copy of a note from his physician recommending that he use marijuana to help alleviate chronic back pain. On September 25, 2001, Ragingwire terminated Ross because of his marijuana use.

Ross filed a lawsuit claiming that the termination violated the California Fair Employment and Housing Act ("FEHA"). More specifically, Ross alleged that Ragingwire discriminated against him based upon his disability because it failed to provide him with the reasonable accommodation of permitting him to use marijuana in accordance with the Compassionate Use Act. Ross also claimed that his termination was in violation of a public policy created by the passage of the Compassionate Use Act and that Ragingwire also breached an implied contract that it would only terminate Ross for good cause.

The Court held that the Compassionate Use Act only decriminalized medicinal marijuana use under California state law. The Compassionate Use Act did not, and could not, decriminalize marijuana use under federal law. The Court noted that if a company is compelled to permit marijuana use in the workplace, it might be subjected to a search conducted by federal authorities. Another potential consequence is that an employer might be precluded by the Drug-Free Workplace Act from contracting with the state because the state requires a contracting business to certify that it prohibits the possession of controlled substances in the workplace.

The Court rejected Ross's claims because the FEHA does not require an employer to accommodate an employee's medicinal use of marijuana. Although some employers might be willing to employ persons who are using marijuana pursuant to the Compassionate Use Act, the Court determined that the language of the FEHA did not permit a court to require employers to do so. The Court also rejected Ross's public policy claim because the Compassionate Use Act only confers a right to use medicinal marijuana free from state criminal sanctions – it does not confer any employment protections. Similarly, the Court found that Ragingwire's reason for terminating Ross constituted "just cause," and thus the Court did not need to consider Ross's implied contract claim.

The court took a very narrow interpretation of Prop. 215, ruling that it did not create a general right to use medical marijuana, but only protected patients from criminal sanctions for possession or cultivation of medical marijuana. Justices Kenard and Moreno dissented.

The text of the opinion may be found HERE:

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January 21, 2008

MOTION TO SUPPRESS GRANTED WHEN SUSPECT FLEES

The defendant's flight was precipitated by unlawful attempted arrest by law enforcement officers. As a result,seizure of defendant's abandoned property was properly suppressed
The defendant's flight from an unreasonable stop led to him abandoning drugs in flight. Oops. Here, the flight was not attenuated from the unlawful activity and the motion to suppress is granted.

The Court said:

"For the same reasons, I decline to adopt the government's argument that Defendant's flight was an intervening event that dissipated the taint of the initial unlawful search and seizure. It may well be that flight or resisting arrest constitutes an intervening cause in other circumstances but not under the facts of this case where there was never a break in the causal chain following the unlawful search and detention."

United States v. Harris, 2008 U.S. Dist. LEXIS 3846 (D. Colo. January 3, 2008):

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January 20, 2008

SOUTHERN CALIFORNIA MURDER RATES DOWN IN 2007

The number of homicides in Orange, Riverside and San Bernardino counties either saw a sharp drop or remained mostly unchanged last year compared to 2006, according to new crime statistics.

Homicides fell from 12 in 2006 to six in 2007 in the area patrolled by the Orange County Sheriff's Department, officials said. The sheriff's jurisdiction includes 12 of the county's 34 cities, serving a population of about 3.2 million people.

Click HERE for full Los Angeles Times article.

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January 19, 2008

CALIFORNIA CRIMINAL DEFENSE NEWS: GANG ENHANCEMENT DOESN'T REQUIRE CRIME TO BENEFIT THE GANG

Here is yet a other long line of terrible, absurd gang enhancement cases. California Penal Code sec. 186.22(b), the gang enhancement provision, requires that the crime have been committed for the benefit of the gang. Right? Yes, that's what the statute says.

If so, this defendant wins. Right?

But this Court of Appeal says that the crime doesn't actually have to be for the benefit of the gang. It's enough that there was evidence that the crime was committed "in association with" the gang with the intent to assist criminal conduct.

The facts here pretty clearly show that the robbery was not for the benefit of the gang, but it was committed with another gang member and the defendant was a member of
the gang, that's enough to show the "association" required.

Hey, the first outrage of the week for the new year.

People v. Martinez; 2008 DJ DAR 668; DJ, 1/17/08; C/A 4th

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January 19, 2008

AL MENASTER'S TAKE ON PEOPLE V. HUA-EXIGENT CIRCUMSTANCES DON'T EXIST TO BREAK INTO A HOUSE FOR A LITTLE GRASS

I can't help but laugh when I review Los Angeles Public Defender Al Menaster's commentary on new California criminal cases. Here's the newest comenatry on People v. Hua, which I posted earlier in the week. Clikc HERE to see that post.

Menaster's commentary:

In Welsh v. Wisconsin (466 US 740), the US Supremes held that the exigency exception to the requirement that the police have a warrant in order to enter a home applies only where the crime being investigated isn't minor.

In Welsh, the crime was driving under the influence; the US Supremes held that this crime was too minor to permit invasion of a home without a warrant.

Of course, the Cal. Supremes upheld entry of a home based on exigent circumstances for a DUI, saying that in Cal., a DUI was so much more serious than a DUI in Wisconsin. Right...

Anyway, this case involves a police entry into a home to investigate the serious crime of, drum roll please, possession of less than one ounce of marijuana. Even this C/A can't stomach this one. They apply Welsh and hold that the entry can't be justified by exigent circumstances.

People v. Hua; 2008 DJ DAR 409; DJ, 1/14/08; C/A 1st

January 18, 2008

CALIFORNIA CRIMINAL DEFENSE LAWYER NEWS: MAN SENTENCED IN SAN DIEGO ALIEN SMUGGLING CASE

By: North County Times Wire Services -

SAN DIEGO - An immigrant smuggler was sentenced today to nearly five years in federal prison for leading a group of illegal aliens across the border and loading them into a van that overturned, killing two women.

Carlos Rodriguez-Gonzalez, 46, pleaded guilty last Oct. 3 to five counts, including alien smuggling for financial gain and alien smuggling resulting in death.

Defense attorney David Zugman unsuccessfully sought a 36-month prison term, arguing that Rodriguez-Gonzales wasn't the one who flipped the van that killed the victims.

Rodriguez-Gonzalez should have gotten a much lighter sentence than the driver of the van, Marcos Olguin, who received a six-year prison term, Zugman argued.

But U.S. District Judge William Q. Hayes said the defendant's 42 prior apprehensions by immigration officials, including the use of at least three dozen AKAs and 28 dates of birth, was a significant factor in handing down the 57-month sentence.

The judge reminded Zugman that two women, including one who was pregnant, died in the March 8, 2006, crash near Honey Springs Road and state Route 94, between Dulzura and Jamul.

"Your client bears some responsibility for that," the judge told the defense attorney. Authorities said Olguin had 20 passengers in the van when it crashed in light rain.

He told authorities that he was to be paid between $3,000 and $4,000 to drive the van from the mountains east of San Diego to Oceanside.

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January 17, 2008

SAN DIEGO CIVIL RIGHTS CASE GOES TO TRIAL: POLICE SHOOTING QUESTIONED

By Greg Moran
STAFF WRITER

January 17, 2008

“Cover now!”

The urgent radio plea came crackling from San Diego police Officer Timothy Leahy the night of Oct. 11, 2003. The phrase means one thing: an officer needs immediate help.

Twenty-four seconds later, another message from Leahy, its meaning unmistakable: “Shots fired.”

Lying on the sidewalk on 65th Street near the Encanto Recreation Center was Billye Venable, 26, bleeding from a gunshot to the head fired by Officer James Hunter.

Now, more than four years later, a federal court jury will have to decide what happened during those 24 seconds – and which of two sharply contrasting version of events to believe.

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Venable's mother and his four children sued the city of San Diego, saying his death was the result of excessive force by Leahy, Hunter and a third officer, Anthony Bueno.

The suit also alleges civil rights violations and wrongful death, and it says the city conducted an inadequate investigation of the shooting that covered up the facts.

Venable was shot after he tried to run from police officers after the car he was riding in with his brother was pulled over. At the time he was a parole violator with several warrants out for his arrest, and he had a lengthy criminal history.

Venable was wrestled to the ground by Leahy, then a 23-year-old officer with less than two years on the force. What happened next is the core of the case.

Police said that as Venable and Leahy fell, Venable used both hands to grab Leahy's gun and began to tug on it. Bueno kicked Venable to get him to stop struggling, Deputy City Attorney Don Shanahan said.

Hunter jumped on top of the two, who were locked together in a side-by-side struggle. The city said that despite repeated warnings, Venable would not let go of the gun.

Peter Friesen, the lawyer for the Venable family, painted a far different picture.

He said blood-spatter evidence and testimony from five witnesses who saw the altercation will refute the official police version. Instead of struggling, Friesen said, Venable was lying face down, with Hunter kneeling on his back and grasping Venable's left arm behind him.

One crucial distinction: Friesen said witnesses will say it was Leahy – not Bueno – who got up after tackling Venable and was kicking him. It was during the kicks that Hunter shot Venable, Friesen said.

Continue reading "SAN DIEGO CIVIL RIGHTS CASE GOES TO TRIAL: POLICE SHOOTING QUESTIONED" »

January 17, 2008

EL CAJON DUI DEFENDANT WILL SPEND TWO YEARS IN PRISON

EL CAJON DUI COURT: A Ramona woman arrested five times between May and October on suspicion of driving under the influence of prescription drugs was sentenced yesterday to spend two years locked up – a year in jail and a year in a residential treatment center.

Click HERE for full story.

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January 16, 2008

CALIFORNIA GANGS:WHAT IS SUFFICIENT EVIDENCE TO PROVE MEMBERSHIP?

IT DOESN'T TAKE MUCH TO PROVE YOU ARE A MEMBER OF A GANG

Evidence of tattoos on the defendant's head, and admissions to police, were sufficient for the jury to find active membership in a gang. The fact that the robbery was committed with another gang member was sufficient to prove the robbery was committed "in association with" the gang.

People v. Martinez (C.A. 4th, 1/15/08, G038150) 08 C.D.O.S. 614

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January 16, 2008

CALIFORNIA COURT OF APPEAL RULES ON TRIAL COURT JURISDICTION

APPEALS - TRIAL COURT JURISDICTION

After the trial court discovered that appellant would not be able to appeal the denial of his discovery motions after entering his guilty plea (apparently contrary to the court's representations), the court recalled the sentence (with the approval of the prosecutor).

They allowed the defendant to withdraw his plea, and then submit to a court trial on documentary evidence.

Defendant then appealed from the new judgment and abandoned the earlier appeal. The appellate court found the second judgment was void, since the court did not have jurisdiction to take the action while an appeal was pending.

The void judgment is reversed, and the merits of appellant's case were not considered. By implication, the defendant is left to seek relief through habeas corpus.

People v. Alanis (C.A. 6th, 1/16/08, H031059) 08 C.D.O.S. 626

January 14, 2008

DEFENDANT'S CONSENT TO TAKE BLOOD AND URINE HELD INVOLUNTARY

Defendant's consent to taking blood and urine was hardly voluntary when he was restrained, weeping, and never signed consent form.

Defendant's consent to taking of blood and urine was not voluntary. His mental condition was obviously vulnerable. He could not read, had to be forcibly restrained while the consent form was initially being read to him, was weeping on his wife's shoulder while the remainder of the form was read to him, and never signed the form.

Although his wife signed the form, the trooper admitted that she never indicated that defendant understood it.

State v. Stephens, 2008 Ga. App. LEXIS 34 (January 11, 2008).*


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January 13, 2008

CALIFORNIA TRAFFIC OFFENSE NEWS: CALIFORNIA TRAFFIC SCHOOL NO LONGER AN OPTION FOR MANY OFFENDERS

I previously posted a isting of all of the Vehicle Code violations that no longer automatically get expunged upon successful completion of probation. Prior to 2008, if one sucessfully completed probation, the individual wanting to expunge that record could file an application with the court, and the application would automatically be granted. Not anymore.

Click HERE for the story on limitations on California Expungements.

Now, the same bill that amended California Penal Code section 1203.4 to eliminate automatic expungements in California, also eliminates the right to go to traffic school for many of the same offenses. Click HERE for a listing of those offense which now bar California traffic school.

That bill was AB 645, which became Stats. 2007, ch. 161.

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January 13, 2008

CALIFORNIA DUI DEFENSE NEWS: MANY VEHICLE CODE VIOLATIONS ARE NO LONGER SUBJECT TO MANDATORY CALIFORNIA EXPUNGEMENT

CALIFORNIA DRUNK DRIVING DEFENSE NEWS:

California Penal Code Section 1203.4 - the statute that authorizes expungement of crimes after sucessful completion of probation - has been amended to exclude certain offenders from relief under the "mandatory" or "nondiscretionary" part of that code section.

Now persons convicted of these offenses, even if they have completed probation in a flawless manner, will have to petition the court to exercise its discretion in granting 1203.4 relief. Given that most of the political appointees on the bench hail from the state and federal prosecutors' offices, the liklihood of these judges actually excercising discretion in the your favor are slim to none. The legislation creates gigantic hurdles for any individual seeking a California expungement after successful completion of probation.

Persons convicted of the following code sections are affected by this latest statutory revision:

20001 CVC [hit and run driving with personal injury, etc.];

20002 CVC [hit and run driving with property damage only];

23152 CVC [driving a motor vehicle while under the influence of alcohol or drugs];

23153 CVC [driving a motor vehicle while under the influence of alcohol or drugs with personal injury];

23103 CVC [reckless driving];

23103.5 CVC [reckless driving with alcohol involved];

23104 CVC [reckless driving causing bodily injury];

23105 CVC [reckless driving causing specified bodily injury (unconsciousness; concussion; bone fracture; protracted loss or impairment of function or a bodily member or organ; a wound requiring extensive suturing; serious disfigurement; brain injury; paralysis)];

191.5(b) Penal Code [vehicular manslaughter while intoxicated];

192(c) Penal Code [vehicular manslaughter];

2800.2 CVC [attempting to evade a peace officer while driving recklessly];

2800.3 CVC [willful flight causing death or serious bodily injury];

21651(b) CVC [driving on a highway other than to the right of an intermittant barrier or a dividing section which separates one or more opposing landes of traffic];

22348(b) CVC [driving a vehicle upon a highway at a speed greater than 100 miles per hour];

23109(a) CVC [motor vehicle speed contest];

23109(c) CVC [motor vehicle exhibition of speed];

23109.1 CVC [engaging in motor vehicle speed contest causing specified bodily injuries];

31602 CVC [unlawful driving on a public highway for the purpose of transporting explosives];

23140(a) CVC [driving with a BAC of 0.05 by a person under the age of 21];

23140(b) CVC [driving while UIA (0.05) by a person under the age of 21];

14601 CVC [driving while privileges suspended pursuant to certain offenses];

14601.1 CVC [driving while privileges suspended pursuant to other offenses];

14601.2 CVC [driving while license suspended or revoked for DUI];

14601.3 CVC [habitual traffic offender];

14601.4 CVC [driving with suspended or revoked driver's license resulting in injury to another person];

14601.5 CVC [driving while privileges suspended for failure to take chemical test or for driving with specified blood alcohol level].

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January 13, 2008

WASHINGTON STATE WANTS TO STOP YOU IN YOUR CAR FOR NO REASON

WASHINGTON TRIES TO JUSTIFY SECURITY CHECKPOINTS

When Washington Governor Chris Gregoire was explaining on Monday her rationale behind her new security checkpoint program, she pointed out that we already have security stops and checks at courthouses and airports. In many of those places, we do; and the proposed expansion of governmental stops and checks of citizens who are minding their own business and violating no law is one of the exact reasons we disapprove of them so much.

Where will the quest for “safety” and “security” lead us next?

How much more thoroughly will the Fourth Amendment be eviscerated in the name of keeping people safe?

Read the full article from Randy Stapilis by clicking on Ridenbaugh Press.

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January 11, 2008

CALIFORNIA FEDERAL COURT NEWS: DETENTION DURING EXECUTION OF BAD WARRANT IS BAD

A police detention during the execution of a valid warrant is permissible under Summers and Muehler, but detention during execution of an invalid warrant may not be, so summary judgment is denied.

Olson v. Oreck, 2008 U.S. Dist. LEXIS 2786 (E.D. Cal. January 11, 2008).

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January 11, 2008

CALIFORNIA CRIMINAL DEFENSE LAWYER NEWS: CALIFORNIA COURT OF APPEAL REJECTS PROSECUTORS ARGUMENT THAT EXIGENT CIRCUMSTANCES EXISTED FOR WARRANTLESS SEARCH OF DEFENDANT'S HOME

Two Pacifica police officers observed several individuals smoking marijuana in an apartment rented by defendant John Hua. The cops entered, without either a warrant or consent, and eventually discovered growing marijuana plants and a cane sword.

Hua was originally charged with cultivation of marijuana (H&S Code §11358) (count 1), possession for sale of marijuana (H&S Code §11359) (count 2), and felony possession of a cane sword (PC §12020(a)) (count 3).

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In the trial court, Hua challenged the cops warrantless entry and the subsequent search of his apartment in a motion to suppress the evidence seized by the cops. (PC §1538.5.) The trial court denied the motion, concluding the entry was justified by exigent circumstances.

Hau then entered a plea of nolo contendere to cultivation of marijuana (H&S Code §11358) and misdemeanor possession of a cane sword (PC §12020(a).) On appeal, Hua challenged the denial of his motion to suppress (Penal COde §1538.5(m)).

The California First District Court of Appeal, Division Five, rejected the People’s contention that exigent circumstances justified the warrantless entry of def.’s home. Under Welsh v. Wisconsin (1984) 466 U.S. 740, 753-754 (Welsh), a finding of exigent circumstances is categorically precluded when the only crime the cops are aware of when they enter a residence to arrest the occupant and/or seize contraband is possession of no more than 28.5 grams of marijuana.

Comment: While not a DUI case, this DCA1 opinion relies on U.S. Supreme Court precedent - Welsh v. Wisconsin (1984) 466 U.S. 740, 753-754 (Welsh), a DUI case where the cops made a warrantless entry into a residence and also effected a warrantless arrest, a case which you may recall was specifically distinguished by our California Supreme Court in People v. Thompson (2006) 38 C4th 811 on the grounds that in California, a first-time DUI is a misdo, not a non-jailable civil offense and, oh yes, there were exigent circumstances here – alcohol burn-off. Oh, right!

Click HERE for the full opinion.

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January 11, 2008

LAWYER'S SARCASTIC COMMENT AT AIRPORT SECURITY ABOUT A BOMB IN A SUITCASE WAS PROBABLE CAUSE TO ARREST

The Plaintiff's arrest was justified when she made a sarcastic comment about a bomb in her bag after she was bumped from a flight because of her late check-in when she was trying to retrieve her bags.

(Apparently plaintiff, a lawyer, did not respond well to stress. "The parties submitted expert psychiatric testimony explaining that plaintiff becomes sarcastic under stress.") She was strip searched at the jail when booked in.

Levin v. United Airlines, 2008 Cal. App. LEXIS 33 (2d Dist. January 10, 2008).*

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January 10, 2008

NINTH CIRCUIT COURT OF APPEAL: ISSUES NOT DECIDED IN FIRST APPEAL

APPEALS - ISSUES NOT DECIDED IN FIRST APPEAL

United States v. Thornton (9th Cir. 1/10/08, 06-50597)

Appellant could raise issues in second appeal raised in first appeal but not decided because court reversed on Ameline grounds.

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January 10, 2008

FEDERAL CRIMINAL DEFENSE LAWYER NEWS: PHONE COMPANIES CUT OFF FBI WITETAPS BECAUSE OF UNPAID BILLS

Thursday, January 10, 2008 12:26 PM WASHINGTON (AP) -- Telephone companies cut off FBI wiretaps used to eavesdrop on suspected criminals because of the bureau's repeated failures to pay phone bills on time, according to a Justice Department audit released Thursday.

The faulty bookkeeping is part of what the audit, by the Justice Department's inspector general, described as the FBI's lax oversight of money used in undercover investigations.

Poor supervision of the program also allowed one agent to steal $25,000, the audit said.

More than half of 990 bills to pay for telecommunication surveillance in five unidentified FBI field offices were not paid on time, the report shows. In one office alone, unpaid costs for wiretaps from one phone company totaled $66,000. And at least once, a wiretap used in a Foreign Intelligence Surveillance Act investigation - the highly secretive and sensitive cases that allow eavesdropping on suspected terrorists or spies - "was halted due to untimely payment."

"We also found that resulted in telecommunicationscarriers actually disconnecting phone lines established to deliver surveillance results to the FBI, resulting in lost evidence," according to the audit by Inspector General Glenn A. Fine.

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January 10, 2008

CALIFORNIA CIVIL RIGHTS NEWS: NINTH CIRCUIT SAYS ALLEGATIONS OF EXCESSIVE FORCE ARE ENOUGH TO DEFEAT GOVERNMENT'S MOTION TO DISMISS

Allegation of excessive force was enough to defeat governmental entities motion to dismiss, something that cannot be resolved at the pleading stage.

Garcia v. City of Merced, 2008 U.S. Dist. LEXIS 2135 (E.D. Cal. January 10, 2008).*

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January 9, 2008

CALIFORNIA COURT OF APPEAL HOLDS CUNNINHAM ERROR IS HARMLESS

The Court of Appeal here admits that the reliance by the trial court about facts relating to the crime as the justification for imposition of the upper term in prison violated Cunningham (127 S.Ct. 856), since those facts weren't found true by the jury.

They then find harmless error. How? Well there was all this evidence in support of the aggravating factors found by the judge. This is just so, so wrong. If the judge denies a
defendant a jury trial, can the resulting conviction be affirmed on the basis that the evidence was so overwhelming that a jury would have convicted anyway? Wrong.

People v. Curry; 2008 DJ DAR 201; DJ, 1/9/08; C/A 3rd

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January 9, 2008

CALIFORNIA CRIMINAL DEFENSE LAWYER NEWS: SURREPTITIOUS BUGGING OF DEFENDANTS IN A HOLDING CELL DOES NOT VIOLATE MIRANDA

The two defendants in this case both invoked Miranda after their arrests. Those cunning
police put the two into a cell and left. But they bugged the cell. Of course, the defendants had a conversation where they made incriminating statements. Guess they don't watch T.V.

The Court of Appeal rejects the claim that this violated Miranda. The Court of Appeal rules that the police didn't interrogate these guys. The Court of Appeal also rejects a challenge based on Crawford (541 U.S. 36), finding that the statements weren't testimonial, since the defendants wouldn't have thought their statements might be used at a later trial.

People v. Jefferson; 2008 DJ DAR 215; DJ, 1/9/08; C/A 2nd, Div. 7

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January 8, 2008

EXIGENCY CEASES TO EXIST WHEN HE IS ARRESTED AND REFUSES CONSENT

The exigency ceased to exist on defendant's arrest, despite the fact it was initiated by a 911 call. He also expressly refused consent.

United States v. Davis, 2008 U.S. Dist. LEXIS 1224 (N.D. Ill. January 8, 2008):

In this case, any emergency created by Cupito's 911 call ended when the deputies arrived on the scene to find her safely outside Davis's house. According to their testimony, the deputies made the decision to arrest Davis before they requested his identification.

If there was an exigency that Davis would harm the officers, retrieve a weapon, flee, or destroy evidence, it was created when the officers requested and consented to Davis reentering his home to retrieve his identification. This police manufactured exigency did not justify entry into the home.

Furthermore, even if there was an exigency that was not created by the deputies, the exigency would have ended after they handcuffed Davis and would not justify the deputies remaining in his home. See Tierney v. Davidson, 133 F.3d 189, 197-98 (2d Cir. 1998) ("As to what may be done by the police or other public authorities once they are inside the premises, this must be assessed upon a case-by-case basis, taking into account the type of emergency which appeared to be present ... The officer's post-entry conduct must be carefully limited to achieving the objective which justified the entry-the officer may do no more than is reasonably necessary to ascertain whether someone is in need of assistance and to provide that assistance.").

Because there was no exigency, the only other way the Government may justify the deputies' entry is by consent.

January 8, 2008

MALE OFFICER'S PATDOWN OF WOMAN'S GROIN OVERCAME QUALIFIED IMMUNITY

A male officer's patdown of a woman using his cupped hand to touch her groin area, if true, stated a claim and overcame qualified immunity.

Cherney v. City of Burnsville, 2008 U.S. Dist. LEXIS 1345 (D. Minn. January 8, 2008).*

January 8, 2008

FORFEITURE CASES-LOCAL ORDINANCE IS PRE-EMPTED

Following O'Connell v. City of Stockton (2007) 41 Cal.4th 1061, Second District Court of Appeal holds that an ordinance permitting the seizure and forfeiture of cars used by persons committing certain offenses (here, soliciting prostitution) are pre-empted by state law.

City of Los Angeles v. 2000 Jeep Cherokee (C.A. 2nd, 1/8/08, B185673c/B188182) 08 C.D.O.S. 259

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January 8, 2008

CALIFORNIA CRIMINAL LAWYER NEWS: CALIFORNIA COURTS CANNOT USE PRISON PRIORS TO ADD TIME AND CHOOSE UPPER TERM

DUAL USE OF PRISON PRIORS IN CALIFORNIA CRIMINAL CASES-REJECTEDThe court here imposed the upper term based on the defendant's priors. The court used those very same priors as prison priors under PC 667.5(b) to add time as well.

Question: Does this violate the dual use ban?

The Attorney General argues that the upper term was based on the fact of the priors, while the extra time for the prison priors was based on the fact that the defendant had served time in prison.

This Court of Appeal correctly recognizes the Supreme Court authority rejecting this distinction. (See, Jones, 5 Cal.4th 1142.) The California Penal Code sec.667.5(b) enhancement IS based on the fact of the prior conviction. Therefore, the trial judge couldn't add time twice for the same priors.

People v. McFearson; 2008 DJ DAR 156; DJ, 1/8/08; C/A 5th

January 7, 2008

NINTH CIRCUIT POISED TO ALLOW FULL-FLEDGED SEARCHES OF COMPUTERS AT THE BORDER

A federal appeals court appears poised to rule that a computer has no special protection from searches at the border.

The San Francisco-based 9th U.S. Circuit Court of Appeals is expected to rule in the case of Michael T. Arnold, who is seeking to throw out evidence of child pornography found by a customs officer who clicked on folders called “Kodak pictures” and “Kodak memories,” Adam Liptak writes in his column for the New York Times.

Click HERE for article from ABA Journal.

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January 7, 2008

CIVIL RIGHTS NEWS: LIMA, OHIO, COPS SHOOT AND KILL BYSTANDER WOMAN HOLDING BABY DURING DRUG RAID - BABY INJURED

LIMA, Ohio — Darla Jennings walked through the streets of south Lima last night sobbing as hundreds of people behind her called for justice after the shooting of her daughter, who was killed by police as she held her baby. (Click HERE for full story)

Tarika Wilson, 26, was shot and her 1-year-old son was wounded when Lima police conducted a drug raid on their home Friday night, prompting members of the black community to organize a candlelight vigil and demand answers from police.

"They shot my daughter and her baby," Ms. Jennings said through tears while being consoled by other family members. "The police have to pay for what they did. They went in that home shooting and killed her."

Police were there to arrest Ms. Wilson's boyfriend, Anthony Terry, 31, who was suspected of selling drugs from the house; he was arrested Friday night at the residence. Marijuana and crack cocaine were found in the house.

Ms. Wilson, the mother of six children, ages 1, 3, 4, 5, 6, and 8, was pronounced dead at 218 East Third St., where SWAT team police officers executed a search warrant at 8:15 p.m. Ms. Wilson's youngest child, Sincere Wilson, was shot during the drug raid as she held him.

Life is cheap to the narcs who execute these self-styled "high risk warrants." So much for the background check on the premises before the raid, I guess. The informant would have told them about the kids.

COMMENT: Maybe had these high end, armor covered, gun toting SWAT guys bothered to ask their narc about the premises, they would have learned there were lots and lots of itty bitty teeny weeny toddlers around that might get in the way of their bullets.

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January 2, 2008

CALIFORNIA CRIMINAL DEFENSE LAWYER NEWS: SELF REPRESENTED DEFENDANT CAN CHANGE HIS MIND AND GET A LAWYER. COURT'S REFUSAL TO PROVIDE A LAWYER UPON REQUEST VIOLATES CONSTITUTION

California Criminal Defense Lawyer News
People v. Lawrence (2008) , Cal.App.4th
[No. B193831. Second Dist., Div. Seven. Jan. 2, 2008.]
THE PEOPLE, Plaintiff and Respondent, v. RINGO LAWRENCE, Defendant and Appellant.

(Superior Court of Los Angeles County, No. BA284590, Mark V. Mooney, Judge.)

Rather than agree to a two-week trial continuance requested by his defense counsel due to a scheduling conflict, Ringo Lawrence, charged with two serious drug offenses, asserted his Sixth Amendment right under Faretta v. California (1975) 422 U.S. 806 [95 S.Ct. 2525, 45 L.Ed.2d 562] (Faretta) to represent himself.

After a half-day of jury selection, Lawrence thought better of his decision and asked that counsel be appointed to represent him at trial. The trial court denied the request and also denied a second request made by Lawrence at the conclusion of jury selection.

Did the trial court err in refusing to permit Lawrence to withdraw his Faretta waiver? If so, is the erroneous denial of a request to withdraw a Faretta waiver state law error only or is it federal constitutional error? If federal constitutional error, is that error structural or subject to harmless error analysis under Chapman v. California (1967) 386 U.S. 18, 24 [87 S.Ct. 824, 17 L.Ed.2d 705] (Chapman)?

Under the circumstances of this case the trial court abused its discretion in denying Lawrence's request for counsel at the end of the first day of trial. Because deprivation of counsel at a critical stage of a criminal trial is federal constitutional error that affects the framework within which the trial proceeds, "with consequences that are necessarily unquantifiable and indeterminate," the error is structural and reversal is required without analysis of prejudicial effect. (Sullivan v. Louisiana (1993) 508 U.S. 275, 282 [113 S.Ct. 2078, 124 L.Ed.2d 182]; see United States v. Gonzalez-Lopez (2006) 548 U.S. ___, ___ [126 S.Ct. 2557, 165 L.Ed.2d 409].)

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January 1, 2008

CALIFORNIA RINGS IN NEW LAWS FOR THE NEW YEAR

Happy New Year. Now that that's said, make sure you do your homework and learn the new laws tht will effect you in 2008 and beyond. Here are my picks for the most important new California laws you need to know.

First, and about time, California workers who earn the minimum wage will get a raise from $7.50 to $8 per hour starting today, tying California with Massachusetts for the highest state minimum wage in the nation.

The governor signed a pioneering measure that requires new semiautomatic pistols to have technology for stamping tiny identifying marks on cartridge casings, starting in 2010. So, when you purchase your new semi-automatic weapon to go hunt rabbits or, maybe, rob someone, know that it can now be traced.

Another new law prohibits the manufacture, sale and distribution of toys intended for children younger than 3 that contain certain chemicals, but the ban does not begin until Jan. 1, 2009. So, go stock up on those chemical-laden toys. They go out of style next year.

A law signed last year that bans minors from using cellphones and text-messaging devices while driving takes effect July 1, as does a companion measure requiring adults to use hands-free devices if they talk on a phone while behind the wheel. Its about time. I'm tired of watching out for distracted drivers.

The laws taking effect today include a ban on smoking in cars where minors are present, punishable by a fine of up to $100. Police officers cannot pull motorists over for smoking, however. Officers can cite adult smokers only if that offense is discovered in conjunction with another violation such as speeding.

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January 1, 2008

LOS ANGELES CIVIL RIGHTS NEWS:LOS ANGELES SHERIFF'S DEPUTIES SUSPENDED FOR PEPPER SPRAYING INMATE'S GENITALS

The Los Angeles County Sheriff's Department has suspended three deputies and opened a criminal investigation into allegations that they assaulted a jail inmate and pepper-sprayed his genital area.

The investigation started after Alejandro Franco, 23, alleged that jailers, upset because he swore at one of them, took him to an isolated place and assaulted him in November. Franco claims two deputies pinned him to the ground at the Twin Towers Correctional Facility in downtown Los Angeles and a third pepper-sprayed his anus and scrotum.

To read the entire Los Angeles Times Story, click HERE.

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January 1, 2008

SAN DIEGO CRIMINAL DEFENSE LAWYER NEWS-SAN DIEGO MURDER RATE DROPPED IN 2007

January 1, 2008 -SAN DIEGO CRIMINAL DEFENSE LAWYER NEWS

SAN DIEGO – There were 58 homicides in San Diego last year – a 15 percent decrease from the 68 homicides recorded in 2006. But gang murders increased.

Click HERE to read the story in the San Diego Union Tribune.

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