March 31, 2009

SAN DIEGO CRIMINAL DEFENSE: SECOND-DEGREE FELONY MURDER AND MERGER

We are not in a common law state, there are no common law crimes. Right? Well, not so fast. There is second-degree felony murder, a crime wholly made up by the Supremes. The Supremes here try to put this problem to rest by claiming that they really didnit make up this crime.

They claim that implied malice, based on the abandoned and malignant heart language in PC 188, really does make second-degree felony murder a crime. Right. Anyway, this analysis compels the court to limit second-degree felony murder to inherently dangerous felonies, inherently dangerous in the abstract, regardless of the actual facts of any specific crime. OK.

But then the court turns to the merger doctrine. Essentially, this is really a simple idea. Picture, if you will, a defendant shooting a victim. During the time that the bullet is in the air, the crime is attempted murder or at least ADW. If the bullet misses, you have at least an ADW. If it hits and kills the victim, you have murder.

Now is this a felony murder, the felony being the ADW? You can see that this approach would turn every murder into felony murder. In Ireland (70 Cal.2d 522), the Supremes
recognized this, and articulated a doctrine of merger: the ADW merges into the murder, so the ADW canit be a felony triggering the felony-murder rule. Seems obvious?

Well, for the past 20 years, the Supremes have been cutting back on Ireland. There was a point where I thought that my little ADW hypo was the only piece of Ireland left. We had cases all over the place, with clearly inconsistent rules. Even the Supremes finally admit this. So they announce that they've decided to settle and clarify this area.

Run for the hills! It seems that every time the Supremes announce that they are going to
clarify and settle, they instead obfuscate and confuse. But not this time. They adopt a clear rule: When the underlying felony is assaultive in nature,... we now conclude that the felony merges with the homicide and cannot be the basis of a felony-murder instruction.i And a felony is assaultive based on the elements of the felony, not the facts of the case.

Pretty great. But wait, exactly what are assaultive felonies? Well, we can't expect everything; they decline to tell us. Certainly, PC 246, shooting at an occupied vehicle, is an assaultive felony, because the Supremes so state. This is a big win, how big remains to be seen.

People v. Chun; 2009 DJ DAR 4745; DJ, 3/31/09; Cal. Supremes

March 26, 2009

CALIFORNIA CRIMINAL DEFENSE: NO "CUSTODY" FOR MIRANDA PURPOSES AT WORK

The Defendant was instructed to follow police to room in office space where he worked while his office, home and car were being searched (with a warrant).

He was questioned with the door closed, but specifically told he was not under arrest, and that he would walk out when "we're done," but was not told he was free to leave.

The questioning was mostly friendly, though at one point the defendant asked the officer not to yell. Held, he was not in custody.

Was he really free to leave having been instructed (otherwise known as "ordered") to go to the office, placed in a closed room, and told he could leave "when we're done" (the converse of which is you can't leave until I am through with you)? Yeah, right.

United States v. Bassignani (9th Cir., 3/25/09, 07-10453) 09 C.D.O.S. 3766

March 26, 2009

FEDERAL WIRETAPPING AND STANDING

Even though the trial court erred in ruling that the Defendant did not have standing to complain of a violation of wiretap laws in the monitoring of her boyfriend's phone, which she also used, Defendant was not entitled to suppression because "Ms. Ahamad never sought a hearing based on the claim federal law enforcement authorities utilized the drug trafficking warrant as a stratagem to discover evidence relating to the shooting of Mr. Larrainzar.

Nor did Ms. Ahamad challenge the federal court disclosure orders which resulted in the Los Angeles homicide detectives learning of the ongoing federally authorized electronic surveillance."

People v. Reyes (2nd Dist., 3/24/09, B201294) 09 C.D.O.S. 3803

March 25, 2009

SAN DIEGO CRIMINAL DEFENSE: MORE PROSECUTORIAL MISCONDUCT UNVEILED

http://jailtimeconsulting.com/blog/tables-turned-on-federal-prosecutors

March 25, 2009

CALIFORNIA FEDERAL DEFENSE: GOVERNMENT'S VIOLATION OF PLEA AGREEMENT IS OKAY IF THERE IS NO OBJECTION AT SENTENCING

The Defendant's claim that the Government violated the terms of plea agreement, otherwise forfeited by counsel's failure to object, is subject to plain-error standard of review under Rule 52(b) of the Federal Rules of Criminal Procedure. Note this is compelled by the federal rules. It does not have a constitutional underpinning.

Puckett v. United States (U.S. Sup. Ct., 3/25/09, 07-9712) 09 C.D.O.S. 3748

March 12, 2009

SAN DIEGO CRIMINAL DEFENSE: PROSECUTORS CAN'T APPEAL THEIR OWN DISMISSAL

Where prosecutors moved to dismiss misdemeanor charges against defendant due to lack of evidence after trial court granted defendant’s motion to suppress evidence, prosecutors could not appeal adverse ruling on suppression motion.

People v. Gallagher - filed January 30, 2009, San Mateo Superior Court, Cite as 2009 SOS 1525

March 8, 2009

SAN DIEGO CRIMINAL DEFENSE: COMPARATIVE JURY ANALYSIS

This defendant was sentenced to the death penalty in San Diego in 1995. Out of 77 prospective jurors, only 6 were African-American. The DA kicked off all 6.

The California Supreme Court upholds this against a Wheeler (22 Cal.3d 258) and
Batson (476 U.S. 79) challenge. Of note, they do comparative juror analysis, comparing jurors kicked off with jurors kept. In Lenix, 44 Cal.4th 602, the California SUpreme Court finally gave up the ghost and agreed that the U.S. Supreme Court compels comparative juror analysis. You can see in this case how little good that does us.

In fact, in my last jury trial in Vista, the judge refused to even engage in any analysis. So, as you can see, applying the law is fairly impossible when the courts want to produce a particular result.

People v. Hamilton; 2009 DJ DAR 2498; DJ, 2/24/09; California Supreme Court.

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March 7, 2009

CALIFORNIA CRIMINAL LAW: EVIDENCE THAT CRIME WAS COMMITTED WITH A FELLOW GANG MEMBER IS NOT ENOUGH TO PROVE CRIMES WERE GANG RELATED

Appellant and his fellow gang member committed four robberies on Christmas Day 2000, the robberies resulting in minimal proceeds.

At trial, Briceno stipulated that Hard Times was a street gang and that on 12/25/2000, he actively participated in the Hard Times criminal street gang with knowledge that members have engaged in criminal gang activity, as defined in Penal Code section 186.22. He specifically did not stipulate that he aided and abetted another gang member on that date.

An expert testified generally as to the gang but provided no testimony establishing Briceno’s specific intent in committing the robberies. Briceno was convicted of the robberies with the gang enhancement. The federal appellate court found that the evidence adduced at trial was insufficient to find proof of the enhancement beyond a reasonable doubt as there was no showing that Briceno committed the crimes with the specific intent to promote the gang -- mere membership in a gang alone is insufficient to prove that the crime was for the gang’s benefit.

(Garcia v. Carey (9th Cir. 2005) 395 F.3d 1099.) The court ordered the habeas petition as to imposition of the enhancements granted.