January 29, 2009

ATTEMPT CRIMES IN CALIFORNIA REQUIRE MORE THAN MERE PREPARATION

Attempt Crimes in California Still Require an Unequivocal Act beyond Mere Preparation

By Ted Cassman & Raphael Goldman

A recent decision of the California First District Court of Appeal provides a welcome refresher course concerning the crime of attempt. The case reinforces the principle that an attempt under California law requires more than mere preparation to commit a crime – there is no offense except when the defendant commits an unequivocal act or acts that, unless frustrated by some external circumstance, would result in the accomplishment of the intended offense.

In People v. Luna, No. A119768, __ Cal. Rptr. 3d __, 2009 WL 106660 (Jan. 15, 2009), the court considered the case of Manuel Luna, who was found driving a car that contained piping, glue, fittings, butane, a butane burner and approximately $1200 in cash – that is, all of the things necessary to manufacture hashish except for one crucial ingredient: “grocery bags full of marijuana.” Id. at * 1. Luna testified at trial that he bought the equipment with the intention of manufacturing hashish, but claimed that he never attempted to purchase marijuana after acquiring the equipment. Id. Luna was convicted under Penal Code § 664 of attempting to manufacture hashish in violation of Health & Safety Code § 11379.6.

“The elements of a criminal attempt are “[(1)] a specific intent to commit the crime, and [(2)] a direct but ineffectual act done toward its commission.” Id. at *2 (citing Penal Code § 21a; People v. Toledo 26 Cal. 4th 221, 229 (2001)). The Luna court observed that the first element was not in question because the appellant testified that it had been his intention to manufacture hashish when he purchased the equipment. Id. Thus, the key dispute [wa]s the second component of an attempt crime. That is, whether appellant’s actions had progressed to the point where they could be considered a direct but ineffectual act done towards [the crime’s] commission, i.e., an overt ineffectual act which is beyond mere preparation yet short of actual commission of the crime. Id. (quotation marks omitted, second alteration in original).

The Luna court noted the principle that “[w]here the intent to commit the crime is clearly shown, an act done toward the commission of the crime may be sufficient for an attempt even though that same act would be insufficient if the intent is not as clearly shown.” Id. at *3 (quoting People v. Bonner, 80 Cal. App. 4th 759, 764 (2000)). Nonetheless, even under that minimal standard, the court found evidence against Luna to be insufficient to support the attempt conviction.

The case turned on the question of whether Luna’s acts were merely preparation to commit a crime, or instead constituted a course of conduct that would have resulted in the commission of a crime absent some external intervention. The Luna court relied heavily on guidance from the California Supreme Court distinguishing mere preparation from acts that constitute attempt:

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January 28, 2009

PUBLIC DEFENDERS HAVE THE TOUGHEST JOBS-READ ON FOR THIS INSULT


Man smears feces on his lawyer, flings it at jury

SAN DIEGO – A San Diego judge has declared a mistrial in a kidnapping and assault case after the defendant smeared excrement on his lawyer's face and threw it at jurors. The judge boosted defendant Weusi McGowan's bail from $250,000 to $1 million after the Monday incident.

Prosecutor Christopher Lawson says McGowan was upset because the judge refused to remove public defender Jeffrey Martin from the case.

McGowan had smuggled a bag of feces into court and spread it on Martin's hair and face before flinging the excrement at jurors. No jurors were hit.

McGowan has pleaded not guilty to kidnapping for robbery, assault with a deadly weapon and other counts in connection with a 2007 home invasion.

January 27, 2009

FEDERAL JUDGE CHASTIZES FEDERAL PROSECUTOR FOR WITHHOLDING EVIDENCE

By Jonathan Saltzman
Globe Staff / January 27, 2009

The chief judge of the US District Court in Massachusetts is threatening to sanction a federal prosecutor for what he characterized as the latest "egregious failure" of the US attorney's office to disclose evidence that could have helped clear a defendant.

Judge Mark Wolf (left) listed at least nine major cases in which he alleges prosecutors withheld important evidence.

NOT THE FIRST TIME

Chief District Court Judge Mark L. Wolf said in a sharply worded memorandum that Assistant US Attorney Suzanne Sullivan failed to disclose that a Boston police officer's testimony at a pretrial hearing contradicted what the officer had repeatedly told the prosecutor beforehand. The defendant, a Mattapan man arrested on gun charges in July 2007, is awaiting trial.

Wolf said the truth about the circumstances of the arrest came to light only when he reviewed Sullivan's notes of her interviews of the police officer, Rance Cooley. The judge wants Sullivan and her boss, US Attorney Michael J. Sullivan, who are not related, to file affidavits by Feb. 5 explaining why he should not sanction her, the US attorney's office, or both.

"The egregious failure of the government to disclose plainly material exculpatory evidence in this case extends a dismal history of intentional and inadvertent violations of the government's duties to disclose in cases assigned to this court," Wolf, a high-ranking prosecutor in the office in the 1980s, wrote in his 42-page rul ing.

He listed at least nine major cases he presided over during the last two decades in which prosecutors working for Michael Sullivan and his predecessors allegedly withheld important evidence. In several instances, the jurist, 62, wrote, the misconduct led to mistrials and convictions that were overturned.

In an extraordinary rebuke of the office in July 2007, Wolf asked the Bar Counsel of the Massachusetts Board of Bar Overseers to launch disciplinary proceedings against a veteran federal prosecutor, Jeffrey Auerhahn, who allegedly withheld key evidence in a New England Mafia case from the early 1990s. That matter is pending, according to the Bar Counsel.

Wolf said in Wednesday's ruling that his only successful sanction occurred in 2002, when he ordered an inexperienced prosecutor to attend a seminar on wrongful convictions after the lawyer repeatedly withheld critical evidence.

Yesterday, Michael Sullivan said in a statement that Suzanne Sullivan was a "valued member" of the office but that "we, of course, take seriously the issues raised by the court." He said he was reviewing the matter and would file a response.

Michael Sullivan, a President Bush appointee who has served as the top federal law enforcement official in Massachusetts since a week after the Sept. 11, 2001, attacks, is widely expected to be replaced by the Obama administration in the coming months.

John F. Palmer, the court-appointed lawyer for the defendant, Darwin E. Jones, 30, in the gun case, said he was disappointed Wolf found that the arrest still passed constitutional muster despite the alleged misconduct by the government. But Wolf's threat of sanctions illustrated that the judge will not tolerate the withholding of evidence, he said. "Judge Wolf is known to take exculpatory evidence issues very seriously, and, as he recounts in the decision, it's not the first time that it's happened," the Boston lawyer said. "And he wants to send a broader message. That's what I take from the decision. It is a big deal."Continued...

Wolf's ruling came in a relatively routine gun arrest by members of the Youth Violence Task Force, a joint effort by Boston police and the State Police. Around 11 p.m. on July 3, 2007, Cooley and other members of the unit went to Middleton Street in Dorchester in response to a complaint about a group of youths smoking marijuana and playing loud music.

Cooley testified at a pivotal pretrial hearing in October that he saw a man on a bicycle at the scene and made eye contact with him, and that the man then turned and rode away, according to Wolf's ruling. Cooley said this was suspicious because he recognized the bicyclist as Jones and had never known Jones to avoid him. After Jones allegedly rode away, other officers pursued him down a dead-end street, but he did not stop, the ruling said. He got off the bike and ran down an alley to another street, ignoring orders to halt. Officers on foot finally tackled him and found a gun in his pocket, authorities said.

However, the report that Cooley wrote immediately after the arrest said nothing about him recognizing Jones on the bicycle, according to Wolf's ruling. Rather, it says that Jones was identified later, after the officers tackled him.

Cooley repeatedly told the prosecutor in the case, Suzanne Sullivan, the same thing in the months after the arrest, Wolf wrote. Nonetheless, after Jones's lawyer challenged the arrest, the prosecutor filed an affidavit by Cooley saying he recognized Jones on the bike and found his behavior suspicious.

The truth, Wolf said, only came out during the pretrial hearing after he reviewed Sullivan's notes of her interviews with Cooley. She also took the witness stand at the hearing, during which Palmer questioned her and then Wolf did.

"The court assumes that her failure to disclose material, exculpatory information was not intentional, in part because Sullivan produced her notes for the court's in camera inspection," Wolf wrote. "Nevertheless, the violations were clear and inexcusable. If the error by an experienced prosecutor was inadvertent, it seems only to be explained by ignorance of, or utter indifference to, the constitutional duty she repeatedly claimed to have understood and obeyed."

Suzanne Sullivan was a prosecutor in the Plymouth district attorney's office, which Michael Sullivan once headed, before she became a federal prosecutor.

Wolf ultimately ruled that the police had the right to arrest Jones because he allegedly fled when officers began pursuing him in a cruiser and on foot. A convicted felon, Jones faces a sentence of 15 years to life in prison if he is found guilty of gun possession, Palmer said.

Citing court precedents, the judge mentioned several possible sanctions against Suzanne Sullivan ranging from a fine to an order to attend an ethics seminar.

Wolf wrote that it is up to the US attorney's office to decide whether to prosecute any officer who testified falsely in the Jones case. Elaine Driscoll, a Boston police spokeswoman, said department lawyers were reviewing the matter to determine what action, if any, to take.

She said Cooley is a "highly respected member of the Boston Police Department and has done tremendous work out on the streets."

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January 25, 2009

CONTRA COSTA PUBLIC DEFENDER CHALLENGES DISTRICT ATTORNEY'S USE OF ILLEGAL CLIENT RECORDINGS

Public defender challenges DA's use of jail phone conversations
By Malaika Fraley
Contra Costa Times
Posted: 01/25/2009 04:49:29 PM PST

MARTINEZ — Contra Costa County's top public defender says the District Attorney's Office is illegally using conversations recorded at jail pay phones to build criminal cases against defendants.

Public Defender David Coleman will go before a Contra Costa County judge Thursday to argue against prosecutors' use of phone calls in a challenge both sides say could ultimately make its way to higher courts.

Coleman contends that the District Attorney's Office's practice of listening to jail phone calls to gain information in criminal cases violates constitutional rights, state wiretapping laws and attorneys' professional codes of conduct. The district attorney's office says the practice is supported by legal precedent and calls Coleman's case "groundless."

WIRETAPS.jpg

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January 23, 2009

SAN DIEGO SHERIFF'S DEPARTMENT STIFLES POLICE BRUTALITY INVESTIGATION

THE SAN DIEGO 6 NEWS AT 10PM
Deputy Complaint: Click HERE for news coverage.

A follow up on an Exclusive San Diego 6 report. Last year, we showed you pictures of sheriff's deputies handcuffing women for fun in a Ramona bar while on duty.

Now, a public defender wants to know if the sheriff's department is above the law.
Photos taken from inside the Ramona bar Molly Malones about 8 months ago show deputies Jesse Allensworth and Colby Hodge handcuffing and slapping girls while on-duty. Deputies are said to be at the bar several nights a week for hours at a time while on-duty.

Part of our story last September included a sheriff's spokesperson who promised they would conduct a thorough, methodical inquiry. Click HERE for that story.

After filing a motion requiring the Sheriff's department to hand over findings of their investigation, the public defender says they were told an investigation was never done.

The executive officer of the Citizens' Law Enforcement Review Board said that although the board reports conduct complaints to the county, in the end, it's the sheriff's department who has the option to police itself.

The actions of the Sheriff's Department have been questioned by representatives of the County Board of Supervisors. Click HERE for video.

Commentary: The public should be outraged that Sheriff's Legal Advisors Robert Faigin, who resoundlingly lost a race to become judge recently, and his equally sleazy sidekick, Sanford Toyen, would intentionally and wilfuly delay an investigation into obvious police misconduct and the use and abuse of taxpayer money on deputies that hang out at bars and play with the female clientele rather than patrol the streets. But that's what I've found this due generally does whenever I file a police misconduct motion. They try to hide the ball. Always. Nice to know dirty deputies are protected and the public is not.

Remember, all felonies charges these rogue deputies filed against Allen Baker were dismissed by a San Diego Superior Court judge. Yes, ladies and gentlemen, dismissed.

January 19, 2009

BUSH PARDONS BORDER PATROL AGENTS WHO SHOT MAN-TRIED TO COVER IT UP


http://news.aol.com/article/bush-commutes-border-agents-sentences/286363?icid=200100397x1216877401x1201165847

January 9, 2009

NO PRE-PRELIMINARY HEARING PITCHESS DISCOVERY

NO PRE-PRELIMINARY HEARING PITCHESS DISCOVERY

Out top appellate counsel in the California criminal defense community are litigating whether the right to pre-prelim. discovery survived Prop. 115, and we thought this case might resolve it. But nope. Instead, they hold that we can't ever get Pitchess (11 Cal.3d 531)
discovery prior to prelims.

They say that it's "unlikely" that Pitchess discovery would actually affect the prelim., which is merely a limited probable cause hearing. But what if we could make a showing that in
this particular case it IS likely that disclosure of citizen complaints against the police officers would cause the preliminary hearing magistrate to refuse to hold the defendant to answer or find a lesser?

You know, like when I found out that San Diego Police Officer Broxterman was removed from the DUI enforcement unit and then suddenly reappeared ten years later making the same illegal traffic stops that got him into trouble ten years prior? And the prosecutors didn't tell us about it? ANd now he is gong to testify n my prelim about a traffic stop and other (false) stuff, and I can't impeach him with the conplaints about him? hhhh. Hush. Hush.

secrecy.jpg

We still can't get discovery? What kind of rule is that? In any event, they can't now seriously claim that they are preserving testimony at this limited hearing where we can't find out much beforehand. California Public Defense Association appellate guru Mark Harvis is appellate counsel on this one. His writ petition was summarily denied the first time, after which the Cal. Supremes granted review and transferred the case back to the Court of Appeal. Mark will petition the Supremes again.

People v. Galindo; 2009 DJ DAR 313; DJ, 1/9/09; C/A 2nd, Div. 8


January 6, 2009

CONFLICT IN FLAT FEE RETAINER KILLS CLIENT

CONFLICT FOR FLAT FEE CONTRACT?

As you read this summary, keep in mind that the Cal. Supremes affirmed this death verdict; they vote to KILL this guy, in spite of what you are about to read.

This private lawyer sought total fees of $80,000 for himself and various experts, $60,000 of that for the experts. Granted. The deal was that whatever the lawyer didn't spend on experts, he could keep. Remarkably, the lawyer spent $9,000 on the experts, so he got to keep $71,000. He did that by, well, not using many experts. See any conflict of interest here?

Well, two justices (Kennard and Werdegar) do. But five don't. The majority reinvents the
standard of prejudice, but even under that standard this is an obvious conflict. Nope, says the majority, we just don't see anything the lawyer did that prejudiced the defendant. Really? How about not getting the experts he needed to save this guy's life? Oh, and note the
footnote (in the dissent) about defense counsel's "huge gambling debts," causing him to borrow money he never intended to repay, and resulting in a State Bar suspension in 2001 and his resignation from the State Bar in 2004.

Now if the court had affirmed a sentence of a $100 fine, it would still be wrong. But they vote to KILL this guy when his lawyer had gambling debts that he paid off by not getting experts so he could pocket the money, resulting in no investigation and no penalty phase
social study report. That, my friends, is an outrage.

People v. Doolin; 2009 DJ DAR 101; DJ, 1/6/09; Cal. Supremes

January 1, 2009

PROBATION CONDITIONS ABOUT THE PRESENCE OF PETS

In an ordinary case (this is possession of meth), can the court require probationers to notify probation which pets they currently have and of any change in their pet status? The majority says that pets can be dangerous to probation officers, or might bark or quack or something
and warn probationers that the probation officer is coming, so the probationers can destroy all that illegal stuff they always have around.

There's a dissent from Kennard and Moreno, apparently the only justices with any common sense. The dissent points out that the majority treats all pets as dangerous:

"Falling within that reach would be Jaws the goldfish, Tweety the canary, and Hank the hamster, hardly
the kinds of pets one would expect to strike fear in a probation
officer."

I guess they don't know some of the probation officers we know. You have to wonder about the judgment of the court in granting review and expending resources on this subject, while at the same time the court is trying to transfer death penalty appeals to the Court of Appeal because
they are so overwhelmed.

People v. Olguin; 2008 DJ DAR 18850; DJ, 12/30/08; Cal. Supremes

January 1, 2009

PROBATION CONDITIONS ABOUT THE PRESENCE OF PETS

In an ordinary case (this is possession of meth), can the court require probationers to notify probation which pets they currently have and of any change in their pet status? The majority says that pets can be dangerous to probation officers, or might bark or quack or something
and warn probationers that the probation officer is coming, so the probationers can destroy all that illegal stuff they always have around.

There's a dissent from Kennard and Moreno, apparently the only justices with any common sense. The dissent points out that the majority treats all pets as dangerous:

"Falling within that reach would be Jaws the goldfish, Tweety the canary, and Hank the hamster, hardly the kinds of pets one would expect to strike fear in a probation officer."

tweety.bmp

I guess they don't know some of the probation officers we know. You have to wonder about the judgment of the court in granting review and expending resources on this subject, while at the same time the court is trying to transfer death penalty appeals to the Court of Appeal because
they are so overwhelmed.

People v. Olguin; 2008 DJ DAR 18850; DJ, 12/30/08; Cal. Supremes

January 1, 2009

THE POLICE CAN'T KEEP THE ONLY COPIES OF SEALED SEARCH WARRANT AFFIDAVITS

The Cal. Supremes here decide when the police can retain all the copies of a sealed Hobbs (7 Cal.4th 948) search warrant affidavit. Their answer effectively bars this.

To obtain an order to retain all copies, the police have to show that disclosure would endanger an informant, that security procedures at the clerk's office are inadequate, that police security procedures are adequate, that the police have procedures to ensure retention of the affidavit for 10 years, and the magistrate must make a sufficient record of the documents reviewed to make sure that later on everyone can tell what was reviewed.

That didn't happen here, so letting the police keep all the copies was error.

And when are the police EVER going to be able to show that the clerk's office leaks like a sieve? Never.

So what happens to this defendant? The Supremes find that it's not impossible to reconstruct what happened here. So they remand for a full hearing to determine whether meaningful appellate review of the actual affidavit is in fact possible. If not, apparently the
warrant gets quashed. The police can't keep the only copies of sealed search warrant
affidavits any more, and we can still seek suppression if what was in those affidavits can't be reconstructed.

People v. Galland; 2008 DJ DAR 18856; DJ, 12/30/08; Cal. Supremes

January 1, 2009

FAILURE TO ADVISE A DEFENDANT OF ALL OF HIS MIRANDA RIGHTS-CASE REVERSED

The officer here engaged in an extensive discussion with the defendant about his Miranda rights, mostly about advisements by police on television and the fact that the defendant had previously been advised of his rights.

The defendant waived and confessed. Oops, the officer left out one teeny tiny right, that anything the defendant said could be used against him.

The trial judge, of course, had no problem with this. imagine that.

Surprisingly, the Court of APpeal does have a problem with it. The defendant has to actually be advised of each of the four Miranda warnings, or the subsequent confession is no good. The AG argued harmless error, but the Court of Appeal disagrees and reverses.

People v. Bradford; 2008 DJ DAR 18881; DJ, 12/31/08; C/A 1st