October 20, 2008

SAN DIEGO CRIMINAL DEFENSE: CONSECUTIVE SENTENCING AND APPRENDI

The U.S. Supreme Court this week heard argument on a case presenting the question of whether Apprendi (530 U.S. 466) applies to consecutive sentences.

In Cunningham (549 U.S. 270), the U.S. Supremes held that
Apprendi applies to California's upper term scheme. So can a judge impose a consecutive sentence based on facts not found by a jury or admitted by the defendant?

It looks like, from a review of all the pundits on the subject, that we will win this one. However, the California Supremes will also claim that somehow this doesn't apply in California, so we
won't get the benefit of this, until we get back to DC. Incidentally, check out (and subscribe to) the SCOTUS blog, a fabulous resource for U.S. Supreme Court stuff like this.

Oregon v. Ice; http://www.scotusblog.com/wp/

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October 18, 2008

INSUFFICIENT EVIDENCE-GANG MURDER CASE DISMISSED

This is an amazing case. But, alas, it has been granted review, so it's probably not long for this world.

Here, the victim showed up at the house where gang guys were hanging out. Someone asked, "where are you from?" A fist fight ensued with the eventual shooter, the victim, and the
two defendants. The victim left. The shooter produced a gun and killed the victim.

The defendants were also convicted. The Court of Appeal reversed on insufficiency of the evidence! The Court of Appeal emphasized that the defendants didn't know the shooter even had a gun and did nothing to encourage the shooter to shoot the victim. The Court of Appeal refused to rule that every gang fight permits a conclusion that it's reasonably foreseeable that a killing will result.

People v. Medina; formerly at 153 CA4th 610; rev. granted

October 13, 2008

POSSESSION OF DRUGS FOR SALE AND CONSPIRACY TO POSSESS DRUGS FOR SALE

In this case, the defendant possessed heroin and methamphetamine in his motel room. The DA charged and got convictions for two counts of drug possession for sale, and two counts of conspiracy to possess those drugs for sale (there was another guy involved).

The Court of Appeal says that a defendant can be convicted on only one count of conspiracy to possess drugs for sale, no matter how many kinds of drugs he has. Moreover, they rule that the defendant can't be sentenced for both possession for sale and conspiracy to possess the same drugs for sale.

You would think this is a no-brainer, but this defendant has strike priors, so Penal Code sec. 667(c)(6) applies. That section makes it mandatory to impose consecutive sentences for felonies not committed on the same occasion and not arising from the same set of operative facts.

The Court of Appeals holds that conspiracy doesn't end at the commission of the first overt act but is continuing, so the conspiracy and the possession for sale did arise from the same set of operative facts. Thus, 667(c)(6) doesn't require consec. sentences.

People v. Briones; 2008 DJ DAR 15641; DJ, 10/13/08; C/A 2nd, Div. 6


October 13, 2008

FAILURE TO ADVISE ON IMMIGRATION CONSEQUENCES DURING THE PLEA

FAILURE TO ADVISE ON IMMIGRATION CONSEQUENCES DURING THE PLEA

Penal Code sec. 1016.5 requires trial courts to advise defendants during the taking of a plea about possible immigration consequences. A failure to so advise requires the court to set the plea aside, on a showing that the defendant faces adverse immigration consequences and that prejudice resulted from the non-advisement.

In this case, the defendant was advised of immigration consequences at arraignment, but not during the plea several weeks later. The Court of Appeal says that the 1016.5 advisement must
be during the plea itself, not just on some other date.

The case is reversed and remanded to determine whether the defendant can show prejudice.

People v. Akhile; 2008 DJ DAR 15654; DJ, 10/13/08; C/A 1st

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October 10, 2008

RECORDING JURY INSTRUCTIONS; CUSTODY FOR POSSESSION; REOPENING JURY

RECORDING JURY INSTRUCTIONS; CUSTODY FOR POSSESSION; REOPENING JURY
SELECTION

The judge got the parties to stipulate that the court reporter didn't have to write down the jury instructions. It turned out that there were all sorts of problems with the instructions the jury was actually given.

The Court of Appeal makes it pretty clear that they want jury instructions reported. So when your judge pressures you to stipulate, note this case.

Of course, the Court of Appeal finds no actual error here, even with the DA not available (he's a judge now) and defense counsel not recalling lots of stuff.

Here's the second issue. The defendant ran over and killed the victim while the defendant was stealing the victim's son's car. Did the victim have sufficient actual or constructive possession over the car to qualify as a victim of a robbery?

The Court of Appealsays yes, saying, get this, that the victim need only have "loose custody" over the property, and the victim's connection to the car was sufficient here. Love that loose
custody.

And there's yet a third issue.Third issue. Both sides passed on the exercise of peremptory challenges. The court then reopened jury selection and permitted the DA to use a peremptory challenge. This Court of Appeal says that a court can reopen jury selection on finding good cause, and that good cause should be liberally construed and of course here that means the Court of Appeal upholds the reopening.

People v. DeFrance; 2008 DJ DAR 15595; DJ, 10/10/08; C/A 3rd


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October 1, 2008

ORANGE COUNTY POLICE OFFICER CHARGED WITH TORTURE

LA SHERIFF'S DEPUTY CHARGED WITH TORTURE, MAYHEM, AND SODOMY FOR ATTACKING WIFE AND HER FRIEND IN IRVINE APARTMENT LEASING OFFICE

NEWPORT BEACH - A Los Angeles Sheriff's deputy has been charged with torturing and forcibly sexually assaulting his wife and another man after learning that his wife was leaving him. Robert Avery McClain, 34, Irvine, is charged with one felony count of aggravated mayhem, one felony count of torture, one felony count of sodomy by force with great bodily injury, with sentencing enhancements for the personal use of a deadly weapon, great bodily injury to a sexual assault victim, and the use of a deadly weapon during a sexual offense. If convicted, he faces a maximum sentence of life in prison. McClain is being held on $1 million bail, and the People will request that he be held without bail at his arraignment at the Harbor Justice Center in Newport Beach.

As the defendant is being medically treated and the arraignment date is to be determined. The Orange County District Attorney's Office will send a media advisory with updated arraignment information when it becomes available.

McClain was a 10-month deputy on probation with the Los Angeles County Sheriff's Department. On Sep. 28, 2008, McClain's 31-year-old wife, Jane Doe, with whom he shares four children, told him that she was leaving him. Jane Doe worked at a leasing office for an apartment complex in Irvine and wanted to leave McClain for one of the residents at the complex, 23-year-old John Doe. McClain is accused of asking Jane Doe to take him to meet John Doe, and the two of them went to John Doe's apartment at approximately 10:00 p.m. After arriving, McClain is accused of leading the victims to the leasing office and into a back kitchenette area. He is accused of starting to argue with Jane Doe and John Doe, and then repeatedly punching and kicking both victims. McClain is accused of taking out a knife and forcing both victims to undress at knife point. McClain also undressed.

While at knife point, McClain is accused of unsuccessfully ordering Jane Doe to orally copulate both him and John Doe. He is accused of giving Jane Doe the knife and instructing her to castrate John Doe. Jane Doe fearfully pretended to follow his instructions. He is accused of using the knife to repeatedly slice John Doe's face.

McClain is accused of leaving John Doe and fleeing the scene, taking Jane Doe with him against her will. After leaving the leasing office, he is accused of forcibly sodomizing Jane Doe, chopping off her hair with the knife, and ultimately driving her back to their Irvine home.

At approximately 5:00 a.m. on Sep. 29, 2008, Jane Doe was able to leave the house with her four children and drive to a nearby hospital. At approximately 7:00 a.m., a cleaning crew discovered John Doe in the leasing office and called 9-1-1. Both victims are expected to survive.

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