April 29, 2009


People v. Waldie (4th Dist., 4/24/09, E042303) 09 C.D.O.S. 4980

Error (harmless here under Chapman v. California (1967) 386 U.S. 18, 24) for Riverside County Judge Albert J. Wojcik to allow prosecutor to introduce evidence of prearrest silence and then to argue it.

Police were allowed to testify that defendant never participated in police interview even after he was called a dozen times. Judge instructed jury that it showed consciousness of guilt. In closing argument, prosecutor commented that defendant had not cooperated with police investigation. Evidence and argument violated Fifth Amendment because defendant was deprived of meaningful right to refuse to talk to police.

"If the police are allowed to call a subject persistently and then offer his unwillingness to response as evidence of guilt, a defendant would never be able to claim the protection of the freedom of incrimination ... testimony about repeated phone calls and apparent evasiveness ... is constitutionally infirm." But see Jenkins v. California (1980) 447 U.S. 231 (prearrest silence may be used to impeach credibility).

How can this be "harmless error"? It deals with a Constitutional right!

April 25, 2009


A bill introduced in California’s legislature would allow state agencies to stop filling the open-records requests of people who have asked for records too many times. But what is too many, and why are they scared?

I have frequently sent CPRA request to the crime labs, police agencies and other departments. Their failure to respond is legend. But it is only because I pursued this avenue, that I was able to uncover hundreds of emails between the San Diego Sheriff's Department and the City Attorneys, and the San Diego police Department and prosecutor talking about how they were going to have to "fix" the "problem" I had uncovered because of their illegal use of non-qualified personnle to draw blood at the jails. Had I not been able to obtain these internal emails using CPRA, the SDSO and SDPD, along with the prosecutors would still be using phlebotomists who matain their medical supplies underneath their kitchen sinks and only wash it when it is visibly blood. Not kidding, folks. Believe me, the prosecutors knew and tried to cover it up.

Or how about the crime lab analyst that was testifying falsely, and the prosecutors knew it. I got those records through the CPRA from the SDSO crime lab. the chief trial lawyer for the city, who never produced that information to anyone, is now a judge. Imagine what would have happened had it been uncovered at the time the woman was testifyin, before this man was rogue prosecutor was given his cush job as a judge?

The bill sets out a process or an agency to seek a court order allowing them to no longer process records requests when the requester has an “improper purpose, which includes, but is not limited to, the harassment of a public agency or its employees.”

The tactic is becoming more common. Recently, Washington passed a law that targets jail or prison inmates who frequently request records. Similarly, Tennessee directed its new Advisory Committee on Open Government to come up with a policy addressing frequent and multiple requesters under the state’s open records law.

Missouri and Maine also saw similar legislative proposals in 2005 that were eventually dropped.

Prior to a Tuesday hearing on the California bill, the California Newspaper Publishers Association sent a letter to the legislature protesting the proposed measure.

“CNPA argues in its letter that while their may be instances of abusive requests and harassing behavior, the problem is not worthy of legislative resolution.,” the group’s Web site said. “In fact, public agencies at every level of government have failed to comply with the law by ignoring requests for records, delaying access, wrongfully denying requests and charging fees in excess of those authorized by law. Every audit performed by Californians Aware, the California First Amendment Coalition, or CNPA member newspapers such as the Contra Costa Times or Stockton Record, has shown abysmal compliance with the law.”

April 25, 2009


I just received a response to a California Public Records Act request I filed about THREE MONTHS ago....

According to the documents, it seems that San Diego DMV Manager Brian Dawson is unhappy that his hearing officers (aka "HO's" for fun), aren't summarily suspending all people who challenge the DMV evidence in DUI administrative hearings, as he apparently would like to happen. In fact, it looks like there have been just too many "set asides" for his liking.

Of course, we in the criminal defense community know that most of the HO's do, in fact, summarily suspend licenses, even when the weight of the evidence is against the Department. So, the fact that brian Dawson sent a memo out to the HO's that the few who actually did issue what we call "set aside's" were derelict in their duties, is astounding and frightening.

Mr. Dawson sent out a "confidential" email to his HO's telling them he was unhappy with the state of the set asides. That's what just came over my desk.

Is Mr. Dawson trying to "rig" the DMV hearings? I think the answer is a resounding "Yes." In fact, in a subsequent memo to the HO's, he even suggests that the Whistleblower statute might apply to anyone who ID's the person who originally leaked this info to defense attorneys.


However, the email is not "confidential." It is subject to disclosure per Gov. Code sec. 6254 et seq., the California Public Records Act. Just because Mr. Dawson puts "confidential" on a memo, doesn't make is legally so. I've gotten thousands of internal emails from the City Attorneys, DA's and crime lab people explaining how they were withholding evidence. In fact, that's how I got this one.

What's been a craw in the side, however, is that in San Diego, alone, we could save possibly $650,000 to $1 million per year if we just did away with the DUI admin per se hearings and let the courts handle it in conjunction with the criminal matters. Times that by all of the DMV offices throughout the state that conduct admin per se hearings, and the state might be able to, say, pay for exterminating rats in school. The DMV, as it relates to aministrative per se hearings in DUI cases, is unnecessary.

I'm looking into whether or not the legal office has taken any action against those rogue DMV HO's who actually reject the Department's evidence and send the driver away with an intact license.......

Maybe I'll write a letter to Arnold and ask him to save us some money.....

April 25, 2009


In a week with perhaps the best case of the year (Arizona), we also get an outrage of the week, perhaps the outrage of the year. The California Court of Appeal has to really struggle even to come up with a traffic infraction to justify the detention in this case; get this, the headlights were out of alignment.


Alrighty, then. But the detention was illegally prolonged, under McGaughran (25 Cal.3d 577). Atwater (532 U.S. 318) says that the 4th Amendment isn't violated by a state law permitting a custodial arrest for a fine-only infraction.

This California Court of Appeal mangles Atwater and comes up with a rule that the 4th Amendment permits custodial arrests for infractions, and concludes that McGauhran isn't the law, so illegally prolonged detentions don't require uppression under the 4th Amendment.

Don't believe me: "if the law enforcement officers had probable cause to believe defendant
committed traffic infractions, then detaining him longer than necessary to simply cite him did not violate the Fourth Amendment." So they ignore a case from the California Supremes and essentially permit extended detentions justified by the most trivial of traffic violations.

Oh, and they skillfully don't even mention the binding cases from the U.S. Supremes barring illegally prolonged detentions, U.S. v. Sharpe (470 U.S. 675) and U.S. v. Place (462 U.S. 696).

And anyway, what does the scope of a custodial arrest have to do with an illegally prolonged detention prior to an arrest? What was searched? Sure enough, the police searched the car after the defendant was arrested and removed from it, violating our new winner, Arizona v. Gant, just decided by SCOTUS.!

People v. Branner; 2009 DJ DAR 5507; DJ, 4/21/09; C/A 3rd

April 21, 2009


© 2009 The Daily Journal Corporation.
All rights reserved.

April 20, 2009

By Jason W. Armstrong
Daily Journal Staff Writer
RIVERSIDE - Defense attorneys are questioning the viability of evidence in thousands of criminal cases in Riverside, San Bernardino and San Diego counties because defendants' blood and urine tests were conducted by a forensic lab technician who admitted to fudging his analysis in a previous job.

Lawyers are frantically digging for information on every case Aaron Layton tested on behalf of Riverside-based Bio-Tox Laboratories over two years with the company until he was fired in February. Thousands of cases in the three counties that contract with Bio-Tox have been thrown into question, attorneys and some judges say, because Layton acknowledged lying hundreds of times about his testing while working at a Colorado lab eight years ago.

A Riverside County judge last week ordered Bio-Tox to produce a detailed list of nearly 4,000 county criminal defendants whose cases were tested by Layton. In San Diego, a defense attorney fired off a letter to the city's police department Wednesday urging a probe of potentially thousands of cases Bio-Tox analyzed while Layton worked there.

Layton's toxicology tests "are significant in a wide variety of investigations and prosecutions, from cases involving alleged driving while under the influence, to manslaughter and murder," Mary Frances Prevost wrote the department. "Layton's admissions raise the specter that testing results Bio-Tox supplied to [police] were untrustworthy," she said.

San Diego police officials did not respond to a request for comment Friday. Prevost contends the department has a duty to investigate whether lab results were compromised because of funding it receives from a forensic science improvement grant.

Layton did not respond to a request for comment. He has declined to comment in published reports.

So far, no cases in any of the counties have been tossed out over Layton's testing. San Bernardino County prosecutors have identified about 4,800 cases Layton analyzed but say they are only obligated to notify defense lawyers about cases in which Layton testified in trial. San Bernardino County Public Defender Doreen Boxer said she intends to go to court to get the entire list.

San Diego County prosecutors said they are still compiling a list of cases Layton tested in their jurisdiction while working at Bio-Tox. The county and the city of San Diego both contract with the company for criminal forensic testing.

Bio-Tox denies any misconduct. Representatives say they are retesting cases Layton handled. Several hundred they've checked so far have been consistent with the initial results, company officials have said.

However, in Riverside County, Supervising Deputy Public Defender Christine Voss said her office got a different test result than Layton reported in one DUI case. That case was dismissed - not because of Layton's analysis but because of Riverside County Superior Court overcrowding.

"We're trying to unravel the degree of the problem," Voss said Friday. "[Layton's] admissions clearly raise concerns for cases. We have a situation where many people have pled guilty and gone to trial based on his test results."

She said her office might attempt to get convictions overturned depending on what the investigation reveals.

Riverside County District Attorney Rod Pacheco could not be reached Friday.

The controversy sparked in December when Riverside prosecutors conducted a background check on 30-year-old Layton when he was listed as a potential witness for misdemeanor DUI trials. During the check, they came across results of polygraph tests Layton took while applying for an Ohio police department job in 2003. They found that he admitted to lying about conducting tests for Colorado criminal cases while working for Denver-based Forensics Laboratories Inc. in 2001. Layton also acknowledged forging supervisors' signatures on lab documents to make it falsely appear he had checked test results.

Layton was fired from Forensics Laboratories for unrelated reasons.

Riverside prosecutors alerted defense attorneys and the court. They also told Denver authorities, who said they are investigating thousands of cases Layton tested there. He has not been prosecuted in connection with his forensic testing.

The Riverside County Public Defender's office had gone to court Wednesday seeking a list of all cases Layton had worked on, including tests in San Bernardino and San Diego counties. But Judge Jorge Hernandez ordered Bio-Tox to itemize only Riverside County cases. Hernandez said it didn't appear that the company was trying to hide information and he wanted defense lawyers to show evidence of problems with Layton's work before ordering case information from other counties.

He ordered Bio-Tox to submit the case list by April 30.


April 21, 2009


So the defendant here was convicted in 2005. He filed a timely notice of appeal. In 2005. The Amador clerk, ah, "filed and forgot" the appeal, and finally found it and sent it to the C/A in 2008. The C/A is not amused, though what they actually say is that they're sure this won't
ever happen again. They do note that in 1935, the mishandling of a timely notice of appeal resulted in defendant Rush Griffin being executed before his appeal could be heard. This led to the automatic appeal procedure now used in capital cases.

People v. Grimes; 2009 DJ DAR 3969; DJ, 3/18/09; C/A 3rd

April 21, 2009


The minor here was found a ward of the juvenile court for violating California Penal Code sec. 626.10(a), possession of a folding knife with a blade that locks into place on school grounds. The item in issue was a "multi-tool," described as a device with pliers, a flat-head screwdriver, a Phillips head screwdriver, a file, a can opener, and a sharpened blade. When extended, the blade locked into place. The blade was one inch long. The issue here is whether this device qualifies as a folding knife with a blade. There has to be a blade and a handle. There's certainly a blade here. The Court of Appeal says that the remainder of the tool can be used as
a handle, so this device does qualify.

In re T.B
.; 2009 DJ DAR 3994; DJ, 3/18/09; C/A 4th

April 21, 2009


It seems that every few years we get an observation post case. Here's this year's bad boy. The officer watched a claimed drug sale from a surveillance location. The DA claimed the EC 1040 privilege.

The court sustained the privilege and imposed no sanction. We ought to be winning these, but here we lose. The Court of Appeal stresses that the trial court here permitted extensive cross about distance and angle of view and only barred questions about the exact location where the ofr. was when he saw what he claimed to have seen.

Here is a critical point that we have to emphasize: essentially, the defense was only barred from asking the ultimate question. But the Court of Appeal goes nuts, trying tomake the distinction between relevance and materiality. Sure, it would be relevant to know where the officer made the observations from.

But material? The Court of Appeal finds lack of materiality because the officer's testimony about observations from the location were sufficiently corroborated by independent evidence, so there was no realistic possibility that disclosure would have enabled the def. to raise a
reasonable doubt.

Right, we're sure the defendant is guilty, so nothing you slimy defense lawyers could do would do you any good anyway, so we're just not going to let you do it. Nothing like a presumption of guilt.

People v. Lewis; 2009 DJ DAR 5321; DJ, 4/15/09; C/A 1st

April 21, 2009


The defendant here was convicted of showing harmful matter to a minor in violation of California Penal Code sec. 288.2. The Court of Appeal says that "harmful matter" doesn't require that an
average adult would find the material patently offensive and unsuitable for minors.

The Court of Appeal says that the test is the 3-prong Miller (413 U.S.15) test, that the average person, applying community standards, would find that the work appeals to prurient interest, the work depicts sexual conduct in a patently offensive way, and the work as a whole lacks serious literary value.

The defendant here showed the minor two TV shows, one showing a naked woman dancing, the second a torso only shot of a man and a woman having sex. I think this sounds like standard cable TV fare, but of course the Court of Appeal finds sufficient evidence that this
qualifies as "harmful matter."

People v. Dyke; 2009 DJ DAR 5213; DJ, 4/10/09; C/A 1st

April 21, 2009


The officer contacted the defendant and found out that he was on parole. Sanders (31 Cal.4th 318) permits a parole search. The only limitation on that search is em>Reyes (19 Cal.4th 743), which says that the search can't be arbitrary, capricious, or harassing.

The defense claims that this was a public strip search, and was thus harassing. The Court of Appeal goes to some pains to rule that this was not a public strip search. The search, though in public, was conducted in the back of a hotel parking lot in an area that didn't face the street.

They describe the search as the officer. lowering the defendant's pants a foot or so, then pulling back the elastic waistband of his underwear, permitting a visual search of his crotch area. The
only item of clothing the officer removed was the defendant's belt, the defendant's private parts were not exposed, and there's no evidence the officer touched the defendant's private area, he simply retrieved the bag of drugs. We're going to have to argue that had the officer done much more than this, it would qualify as harassing.

People v. Smith; 2009 DJ DAR 5224; DJ, 4/10/09; C/A 1st

April 21, 2009


WASHINGTON ­ The Supreme Court ruled Tuesday that police need a warrant to
search the vehicle of someone they have arrested if the person is locked up
in a patrol cruiser and poses no safety threat to officers.

The court's 5-4 decision puts new limits on the ability of police to search
a vehicle immediately after the arrest of a suspect.

Justice John Paul Stevens said in the majority opinion that warrantless
searches still may be conducted if a car's passenger compartment is within
reach of a suspect who has been removed from the vehicle or there is reason
to believe evidence of a crime will be found.

"When these justifications are absent, a search of an arrestee's vehicle
will be unreasonable unless police obtain a warrant," Stevens said.

Justice Samuel Alito , in dissent, complained that the decision upsets
police practice that has developed since the court first authorized
warrantless searches immediately following an arrest.

"There are cases in which it is unclear whether an arrestee could retrieve a
weapon or evidence," Alito said.

Even more confusing, he said, is asking police to determine whether the
vehicle contains evidence of a crime. "What this rule permits in a variety
of situations is entirely unclear," Alito said.

The decision backs an Arizona high court ruling in favor of Rodney Joseph
Gant, who was handcuffed, seated in the back of a patrol car and under
police supervision when Tucson, Ariz., police officers searched his car.
They found cocaine and drug paraphernalia.

The trial court said the evidence could be used against Gant, but Arizona
appeals courts overturned the convictions because the officers already had
secured the scene and thus faced no threat to their safety or concern about
evidence being preserved.

The state and the Bush administration complained that ruling would impose a
"dangerous and unworkable test" that would complicate the daily lives of law
enforcement officers .

The justices divided in an unusual fashion. Justices Ruth Bader Ginsburg,
Antonin Scalia, David Souter and Clarence Thomas joined the majority
opinion. Chief Justice John Roberts and Justices Stephen Breyer and Anthony
Kennedy were in dissent along with Alito.

April 16, 2009


Click HERE for text of torture memos.

April 11, 2009


In one of their more wacko decisions, the California Supreme Court has held that an aider and abettor can be guilty of a more serious crime than the perpetrator. (McCoy, 25 Cal.4th 1111.) But the CALCRIM (400) says that an aider is "equally" as guilty as the perpetrator. The Court of Appeal admits that if the aider can be guilty of a greater crime than the perpetrator, the aider can also be guilty of a lesser crime than the perpetrator. Either way, there are scenarios where the aider is not equally as guilty as the perpetrator. So the Court of Appeal says that the CALCRIM is wrong.

People v. Samaniego; 2009 DJ DAR 5081; DJ, 4/8/09; C/A 2nd, Div. 2

April 11, 2009


The Daily Journal Headlines on this case was, "Defendant must answer charges where court finds that death due to jump off of reversing boat was foreseeable harm." Huh?

So the defendant was driving a boat. The victim was very drunk and kept demanding to water ski. Folks told him not to, but as the def. was backing the boat up, the victim jumped into the
water and the propeller killed him.

The magistrate dismissed the case and the post-information court upheld that dismissal. The Court of Appeal reverses. They say that this is a causation issue. Where, as here, there's an intervening cause of the injury, the issue is whether the type of harm inflicted was foreseeable and thus within the risk of harm created by the def.'s negligent conduct.

I have trouble seeing any negligence by the defendant here, but the Court of Appeal assures us that the victim was very drunk and out of control, so the defendant, as the captain of the ship,
had the responsibility to folks on board, especially the out of control and drunk ones.

OK, the defendant was drunk while boating, but how is it foreseeable that if you're drunk while driving a boat, somebody is going to jump out of the boat and get killed?People v. Dawson; 2009 DJ DAR 4969; DJ, 4/6/09; C/A 1st

April 11, 2009


California Evidence Code section 1108 permits admission of prior sex offenses to prove the
propensity of the defendant to commit a currently charged sex offense. The California Supremes here rule that rape-murder and burglary-murder where the burglary is for the purpose of committing rape are sexual offenses, so 1108 evidence is admissible in such prosecutions.

People v. Story; 2009 DJ DAR 5205; DJ, 4/10/09; Cal. Supremes

April 11, 2009


This is a bad case on the difference between grand theft person and robbery. We say that a purse snatch is grand theft person. Is it? This Court of Appeal says that the issue is whether the defendant uses force to overcome the victim's resistance. Here the victim tried to hold onto the purse and the defendant overcame that resistance and stepped on the victim's foot, and that made this robbery, justifying the court's refusal to give an instruction on grand theft person.

Adding a step on the foot elevates the purse snatching to robbery. Hmmm.

People v. Burns; 2009 DJ DAR 5159; DJ, 4/9/09; C/A 2nd, Div. 4

April 10, 2009


Federal Judge Sanctions US $600K for Secretly Taping Defense Lawyer

Posted Apr 9, 2009, 12:24 pm CDT
By Martha Neil

In a blistering 50-page opinion (PDF) today criticizing the "win-at-any-cost
behavior" of federal prosecutors who secretly taped a defense lawyer, a
federal judge in Florida has awarded more than $600,000 in sanctions against
the government.

The money, which the United States must pay to a South Florida physician it
accused of prescribing pain medication without a proper medical purpose,
will cover more than half of Dr. Ali Shaygan's defense costs, reports the
South Florida Sun-Sentinel.

The 36-year-old doctor, who lives in Miami Beach, was acquitted in March of
141 counts of unlawful prescribing. As a result of his overprescribing, the
government had contended, a West Palm Beach man died of a drug overdose.

The prosecutors who tried the case were Sean Cronin and Andrea Hoffman.
Midway through trial, the defense team learned that attorney David Markus,
one of three lawyers representing Shaygun, had been secretly recorded by
witnesses with approval from the government. The conversations-which the
government says were made to investigate possible witness-tampering-violated
legal ethics rules and U.S. Attorney's Office policy, according to the
newspaper, because they were not disclosed to the defense prior to trial.

Alicia Valle, a spokeswoman for the U.S. Attorney's Office, says mistakes
were unintentionally made in the case, and that it has been referred to the
U.S. Department of Justice for further investigation, apparently concerning
the conduct of the prosecution, according to the Sun-Sentinel.

After a two-day hearing after the jury's March 12 not-guilty verdict, U.S.
District Judge Alan Gold awarded $601,795.88 to Shaygun. In his opinion,
which accorded the most criticism to Cronin as lead prosecutor, the judge
castigated the government for pursuing an "unfounded" witness-tampering
probe based on "personal animus against the defense team," the newspaper

Gold says he also intends to forward his sanctions ruling, which found that
both Cronin and Hoffman acted unethically by not disclosing the recordings,
to attorney discipline boards.

His opinion today follows another blistering blast earlier this week by a
federal judge in Washington, D.C. He appointed a special prosecutor to
investigate possible obstruction of justice by the federal prosecutors who
tried former Sen. Ted Stevens in a corruption case last year and expressed
concern that similar prosecutorial misconduct is occurring elsewhere.

Like the prosecutors in Shaygun's case, the Department of Justice lawyers
who tried Stevens admittedly did not provide exculpatory evidence to the
defense as required before trial.

April 8, 2009


This US Supreme Court win turns out to help us very little. But it introduces a pretty cool term:
"antisuperfluousness canon." That's the rule (aka canon) that statutes shouldn't be construed so as to render language in the statute superfluous.

There's a federal statute requiring that a suspect arrested on a federal crime be brought to a magistrate within 6 hours. In McNabb (318 U.S. 332 (1943)), the Supremes said that even a voluntary confession obtained more than 6 hours after arrest from a suspect had to
be suppressed.

In 1968, the Congress passed a law intended to overrule Miranda (that attempt was rejected in Dickerson, 530 U.S. 428), and they stuck in a provision saying that a confession obtained within the 6 hours didn't have to be suppressed.

The US Supremes here (5-4) say that, yep, a confession within the 6 hours is OK, subject to Miranda and a finding of voluntariness. But a confession obtained after 6 hours
still has to be suppressed. Impact on California law? None. The court makes it clear that this is all federal procedural stuff.

Corley v. U.S.; 2009 DJ DAR 5023; DJ, 4/7/09; US Supremes

April 5, 2009


The Illinois trial court refused to allow defense counsel to exercise a peremptory challenge. This could happen in California for the same reason: the judge found that exercise of the challenge would violate Batson (476 U.S. 79) as being discriminatory. But the trial judge's
refusal to allow the challenge was wrong.

The U.S. Supremes have previously ruled that peremptory challenges are not required by the U.S. Constitution. Here, they hold that state law governs the consequences of improper denial of peremptory challenges; such an improper denial is just not a federal due process violation.

Rivera v. Illinois; 2009 DJ DAR 4822; DJ, 4/1/09; US Supremes

April 5, 2009


This might seem like a niche juvenile sealing case, but I suspect it has great potential impact. The juvenile court found R.S. a delinquent ward of the juvenile court for having performed a lewd act on a 7-year old victim, M.L. The parents of M.L. want to sue the parents of R.S. through
their insurance company. The insurance company wants to view the tape of an interview of M.L. by a Child Abuse Services Team (CAST); that interview was done to pursue the juvenile delinquency action.

The juvenile court granted disclosure with an order limiting dissemination of the tape. The C/A upholds this disclosure order. This is a rare opinion on WIC 827, the statute governing inspection and disclosure of juvenile delinquency records. So why should you care? Have you ever sought disclosure of juvenile court delinquency (or dependency, for that matter) records so you could use them to impeach a prosecution witness?

This is a great case discussing the court rules and the law governing this topic.

R.S. v. Superior Court; 2009 DJ DAR 4857; DJ, 4/2/09; C/A 4th

April 5, 2009


This case addresses the substantive gang crime, PC 186.22(a). This crime applies to any person who actively participates in a criminal street gang and who willfully assists in any felonious criminal conduct by members of that gang. So hereis the question: does the crime itself have to be gang related?

Seems obvious, no?

Actually, it is not obvious. The AG argues here that ANY felonious conduct qualifies, so long as the defendant is an active gang participant. The Court of Appeal rejects this claim. The
court holds that the crime requires proof of gang-related felonious criminal conduct.

People v. Ramirez; 2009 DJ DAR 4809; DJ, 4/1/09; C/A 4th