November 27, 2008

ARANDA/BRUTON, CONSCIOUSNESS OF GUILT, AND CRAWFORD

ARANDA/BRUTON, CONSCIOUSNESS OF GUILT, AND CRAWFORD

There are a bunch of issues in this case. First, Aranda (63 Cal.2d 518) and Bruton (391 U.S. 123) bar use of an out-of-court statement made by a non-testifying co-defendant against another defendant (absent effective redaction).

Some of the statements here were redacted. But one wasn't: the co-defendant's statement that he and the defendant went looking for the guy their friend had a fight with. Of course, they
killed that guy. The Court of Appeal, incredibly, says that admission of this statement didn't violate Aranda/Bruton because the Court of Appeal finds this statement isn't "powerfully incriminating because it facially" incriminated the defendant; it wasn't "direct" evidence that the perpetrators intended to assault or kill the victim. Right; and it was admitted for what purpose?

Second issue: the defendant's standoff with SWAT. The Court of Appeal says that resistance to arrest, like flight, is admissible to show consciousness of guilt. But wait, the defendant had
two other uncharged shooting incidents for which he might have been resisting arrest. Too bad, they can't reward a pro over a neophyte with only one offense. Of course, this makes consciousness of guilt nonsense; what if he was guilty of two offenses but not guilty of this
one?

Third issue: Crawford (541 U.S. 36) bars admission of testimonial hearsay unless we get to confront the declarant. But what if the hearsay isn't testimonial? Well, Smith (135 Cal.App/4th 914) says that the constitutional restriction on nontestimonial hearsay is the old Ohio v. Roberts (448 U.S. 56) rule which was overruled by Crawford with respect to testimonial hearsay: is the statement sufficiently reliable?

The Court of Appeal claims that the recent Davis (547 U.S. 813) case from the US Supremes wipes Smith out. WRONG. Where the hearsay really is nontestimonial, due process should require that the hearsay meet a reliability requirement.

People v. Garcia; 2008 DJ DAR 16901; DJ, 11/17/08; C/A 4th

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November 25, 2008

UNLAWFUL STOP, DISCOVERY OF A WARRANT, THEN A SEARCH. ILLEGAL? NAW!

UNLAWFUL STOP, DISCOVERY OF A WARRANT, THEN A SEARCH. ILLEGAL?

Hold your horses. It's gonna be a tough ride. Here we go and buckle of for this piece of dribble.

FACTS: The police unlawfully stop the defendant. So this is an unlawful traffic stop. It is. There is no question. It's wrong and it's illegal. Get it?

During the stop, before any search, the police find that the defendant has a warrant. They arrest the defendant, search, and find drugs. Result? You're probably going to say that the unlawful stop invalidates the search. You would be wrong.

The Cal. Supremes say that the discovery of the warrant is an intervening circumstance that attenuates the taint of the antecedent unlawful traffic stop. Say that three times fast. Um, is this tort law or something. This seems incredible to me. They note that evidence of purposeful or flagrant police misconduct would require suppression, as would a stop undertaken as a fishing expedition.

They distinguish Sanders (31 Cal.4th 318), which held that an unlawful search can't be justified by later discovery that the defendant is on probation or parole with search conditions, saying that no search occurred here until after the police found the warrant.

People v. Brendlin; 2008 DJ DAR 17352; DJ, 11/25/08; Cal. Supremes

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November 22, 2008

PROSECUTORIAL MISCONDUCT DURING VOIR DIRE

PROSECUTORIAL MISCONDUCT DURING VOIR DIRE

During voir dire, the DA in this case told the prospective jurors some stories about other rape trials that the DA handled, and things the jurors in those cases told him, as a way to tell this panel that they should just convict and shouldn't be bothered with trivial or collateral matters (like evidence).

The Court of Appeal says that this is prosecutorial misconduct, though they find it harmless error.

My next thought on prosecutorial misconduct is that we should ask the Court of Appeal when they make such a finding to file a complaint with the State Bbar. Prosecutors do this stuff quite frequently, knowing that the courts of appeal will find almost every reprehensible thing they do "harmless." But it's really not. The more they get away with it, the more they do it. And, while even if something is "harmless" to the trial, it certainly is a violation of the Rules of Professional Responsibility.

People v. Castillo; 2008 DJ DAR 17086; DJ, 11/20/08; C/A 4th

November 22, 2008

CALIFORNIA CRIMINAL DEFENSE: DISCRETIONARY FINDING RESULTING IN SEX OFFENDER REGISTRATION MUST BE

DISCRETIONARY FINDING RESULTING IN SEX OFFENDER REGISTRATION MUST BE
MADE BY A JURY

We actually FINALLY win an Apprendi (530 U.S. 466) issue. The jury acquitted this defendant of the only sexual offense charged against him. But the court made a finding that on the offenses where the defendant was convicted, he committed them for purposes of sexual gratification, permitting the discretionary order of sex registration under PC 290.

Apprendi says that any fact that increases the "penalty" for a crime must be found by a jury or admitted by the defendant. Does a finding that offenses were committed for sexual gratification, resulting in the Jessica's Law residency restriction, increase the penalty for the crime?

This Court of Appeal says yes. They do an extensive analysis about why the Jessica's Law
residency requirement is punitive and conclude that the necessary finding can't just be made by the judge.

Great case, which I suspect the Supremes won't let stand.

People v. Mosley; 2008 DJ DAR 17178; DJ, 11/21/08; C/A 4th

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November 21, 2008

NO CRIME? NO PROBLEM? GET CONVICTED ANYWAY

This is a very weird case. There was no crime, but the guy still got convicted. Say what? Okay, here we go...

The defendant is walking down the middle of the street, minding his own business. The police try to detain him for violation of a Sacramento city ordinance requiring that pedestrians walk
on sidewalks. The defendant runs away. The defendant is charged with resisting an executive officer in the performance of his duties. They don't actually say anywhere what code section this is; I presume it is PC 69.

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The Court of Appeal finds that the Sacramento ordinance is preempted by state law, so the defendant wasn't violating any law. We win, right? Of course not.

They say that the defendant's decision to flee dissipated the taint from the illegality, so suppression of the police observations is not appropriate.

Tjis is wrong. Penal COde sec.69 requires that a defendant resist an officer in the performance of his duties. How is the defendant's conduct a violation of PC 69? The legality of the officer's conduct is an element of the crime. (Manual G.,
16 C4th 805.)

Here, the def. pled (?), so I suppose that's why this Court of Appeal doesn't actually note that there's no crime here.

People v. Cox; 2008 DJ DAR 17321; DJ, 11/21/08; C/A 3rd

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November 20, 2008

CALIFORNIA CRIMINAL DEFENSE: YOU CAN'T USE ONE PRIOR TWICE IN SENTENCING

The court used the same prior conviction to impose upper term and to impose an extra year under PC 667.5(b). What about the rule barring the use of a single fact twice? The DA's theory is that the upper term is based on the fact of the conviction, while the 667.5(b) year is based on
the fact that the def. served time in prison.

The Court of Appeal cites the cases which have already settled this issue. (e.g., Jones, 5 Cal.4th 1142), and concludes that the court can't do this.

People v. McFearson; 2008 DJ DAR 17096; DJ, 11/20/08; C/A 5th

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