May 20, 2009


OCEANSIDE — Some convicts could get new trials because an Oceanside police officer withheld some taped interviews in cases dating to 2001, it was reported Tuesday.

Officer Damon Smith, who disclosed that he had some recordings in his locker that were not entered into evidence as part of a domestic violence case in April, apparently failed to turn over some interviews with suspects and witnesses ever since he was hired eight years ago, the North County Times reported.

"We are gathering information so that we may complete a legal analysis of the issues and take appropriate action," Paul Levikow of the District Attorney's Office told the Times.

In criminal proceedings, all evidence must be made available over to both sides.

"These are highly significant tapes to be left out of the criminal justice process – and eight years is mind-boggling," San Diego County Public Defender Steve Carroll said.

Prosecutors are reviewing the tapes and plan to turn them over to their defense attorneys, who could argue for new trials.

The defense attorney in the domestic violence case said that Smith may have kept the tapes as backup in the event that someone filed a complaint against him. The officer, who was a homicide detective for a while, was involved in the investigation of the shooting death of Oceanside police Officer Dan Bessant, but there was no evidence he failed to turn over recordings in that case.

Still, the tapes prompted a delay in sentencing gang member Meki Gaono in Bessant's 2006 slaying. The sentencing, which had been set for this week, was put off until June 4.

Smith was unavailable for comment on Monday. It was unclear what discipline he might face.

May 15, 2009


Well, the outrage of the week has three actual outrages in it. The police get an anonymous call of a disturbance outside a house, and maybe one guy has a gun. The police respond and see the defendant and another, and try to detain them. The defendant resists arrest.

First issue: the detention is unlawful under Florida v. J.L. (529 U.S. 266). The Court of Appeal relies on Dolly (40 Cal.4th 458) and finds the facts here just like those in Dolly, and affirms. Right, except for that little J.L. case, with facts right on point.

Second issue: Harvey-Madden. If we demand it, the DA has to bring in somebody to prove the call wasn't stiffed in by the police. Oh, no problem, the level of detail here means that the caller was either the officer himself or the dispatcher was clairvoyant. The point of the rule is to avoid the police calling these in themselves, and you're just assuming that the police didn't do that.

Third issue: even if there wasn't reasonable cause to detain, the defense can't get suppression. Why not? Well, the defendant committed a crime. The crime, of course, is resisting arrest. Lots of officers saw it. The defendant's decision to commit a new crime, you guessed it, dissipates the taint of any preceding illegality. Come on.

In re Richard G.; 2009 DJ DAR 6883; DJ, 5/14/09; C/A 2nd, Div. 6

May 8, 2009


When's the last time you saw a case holding that there was insufficient evidence as a matter of law to convict the defendant of DUI? Maybe never? The defendant didn't stop his truck behind the limit line at an intersection, with perhaps half the truck over the line before the defendant stopped. The offficer (this is obviously a pretext stop, a point never discussed) stops the defendant. The defendant shows signs of methamphetamine intoxication: rigid muscles, dilated pupils, sweating, etc. But the point is that there's no evidence that any of this ACTUALLY AFFECTED the defendant's driving. Yes, it could have. But there has to actually be evidence that it did. The only bad driving was trivial. Case reversed on insufficiency of the evidence!

People v. Torres; 2009 DJ DAR 6490; DJ, 5/6/09; C/A 4th