August 17, 2009

CALIFORNIA CRIMINAL DEFENSE: CALCULATING INDETERMINATE AND DETERMINATE SENTENCES

CALCULATING INDETERMINATE AND DETERMINATE SENTENCES

This California Court of Appeal writes a screed about the unintelligibility of the determinate sentencing law. No kdding. What is more infuriating than trying to figure out sentencing in California?

They try to help folks make correct calculations, using the "box" analogy. The trial court computes all indeterminate sentences separately, and puts that in one box. The court then computes all determinate sentences separately, in another box, then adds the two boxes together. Hey, sometimes there are three boxes! What fun.

People v. Neely; 2009 DJ DAR 12077; DJ, 8/17/09; C/A 2nd, Div. 6

August 16, 2009

USE OF A WHIZANATOR PERMITS TERMINATION OF PROP 36 PROBATION-OOPS!

OK, tied for outrage of the week. The defendant here was on Prop. 36 probation. He used a whizanator device to produce fake urine during a drug test. Incredibly, over an excellent dissent, the California Court of Appeal rules that use of the whizanator isn't drug related and so permits termination of 36 without three chances. The majority says that this is preparing false evidence, violating California Penal Code sec. 134, and interferes with the peace officer, namely the probation officer, violating California Penal Code sec. 148. WHAT?

People v. Haddad; 2009 DJ DAR 11525; DJ, 8/7/09; C/A 2nd, Div. 5

August 13, 2009

SAN DIEGO SEXUAL ASSAULT LAWYER: HERE'S ANOTHER HOFSHEIER WIN

California penal Code sec. 290 requires sex registration for a defendant convicted of Penal Code sec. 288a, oral copulation with a 16-year old girl, but not for Penal Code sec. 261.5, sexual intercourse with that same girl.

In Hofsheier (27 Cal.4th 1185), the California Supremes struck down the mandatory sex registration requirement as violative of equal protection. This case deals with oral copulation of a minor under 16.

This is an easy defense win except for that wacko Manchel (163 Cal.App.4th 1108) case. The Manchel court upheld mandatory sex registration not because of the charge for which the defendant was convicted, but because the defendant's conduct COULD have resulted in a conviction for PC 288(a), which is on the mandatory registration list.

The Court of Appeal in Ranscht (173 Cal.App.4th 1369) correctly explained how ridiculous Manchel is; Manchel upheld mandatory registration because the defendant could have been convicted of an offense requiring registration, even though he wasn't convicted of that offense. This Court of Appeal agrees with Ranscht and strikes down the mandatory registration for oral copulation of a minor under 16, PC 288a(b)(2).

People v. Luansing; 2009 DJ DAR 11832; DJ, 8/12/09; C/A 2nd, Div. 2

August 13, 2009

NO CHARGES CAN BE ADDED AFTER DEFENDANT WAIVES PRELIM

NO CHARGES CAN BE ADDED AFTER A DEFENDANT WAIVES PRELIMINARY EXAMINATION

The defendant here waived prelim. The DA amended the information just before trial to add charges not alleged in the felony complaint. Winters (221 Cal.App.3d 997) bars this.

This California Court of Appeal reaffirms Winters in a pretty clear statement:

"Simply put, [PC] section 1009 prohibits adding new charges to an accusatory pleading after the defendant has waived his right to a preliminary hearing on that pleading. In enacting section 1009, the Legislature determined that an accusatory pleading cannot be amended based on evidence not taken at the preliminary hearing. And when, as here, no preliminary hearing is held, the pleading cannot be amended to add additional charges."

The bad news is that the reversal here is based on ineffective assistance of counsel for failing to object on this ground in the trial court.

People v. Peyton; 2009 DJ DAR 11787; DJ, 8/12/09; C/A 4th

August 12, 2009

NATURAL AND PROBABLE CONSEQUENCES AND PREMEDITATION

The natural and probable consequences theory permits a defendant who aids one crime to be found guilty of another crime, even one by a different defendant, if that crime is reasonably foreseeable from the crime aided.

The defendant here aided an attempted robbery. The jury also found him guilty of attempted premeditated murder. But they COULD have found him guilty of attempted UNpremeditated murder, since the jury had to decide whether premeditation was reasonably foreseeable from aiding the robbery.

The jury instructions didn't tell the jury that, so this Court of Appeal reverses.

People v. Hart; 2009 DJ DAR 11841; DJ, 8/12/09; C/A 3rd

August 12, 2009

SAN DIEGO CRIMINAL DEFENSE: GETTING THE EXPERTS YOU NEED

YOUR RIGHT TO GET EXPERTS

This isn't rocket science. But I have been denied the right for funding to get necessary experts in cases before. Bring this opinion with you next time you think you are going to be denied a righteous request for expert funding.

The Ninth Circuit here reverses for ineffective assistance of counsel. The key evidence was blood. Defense counsel never tested the blood and never even consulted any expert to see what tests might be done on the blood or how to counter the DA's blood expert. The court's
discussion of the importance of experts to examine key evidence should
greatly help us in getting courts to appoint experts we need.

Richter v. Hickman; 2009 DJ DAR 11849; DJ, 8/12/09; 9th Cir. Fed C/A

August 10, 2009

MULTIPLE CRIMES, THE ONE-STRIKE SEX LAW, AND EX POST FACTO

A sentence for a crime can't be increased after commission of the
crime, because of ex post facto.

At the time of the first sex crime, California Penal Code sec. 784.7 required prosecution in the county where the crime occurred. 784.7 was then amended, and when the defendant committed the second sex crime, 784.7 permitted joining all sex crimes in any county where one was committed.

The defendant was charged under California Penal Code sec. 667.61, the one-strike sex
law, on the basis of being convicted of multiple offenses in one proceeding. So does ex post facto bar this? Nope, says this Court of Appeal, with incomprehensible reasoning.

Hey, the defendant was on notice about the 784.7 amendment when he did the second crime. Huh?

People v. Acosta; 2009 DJ DAR 11623; DJ, 8/10/09; C/A 4th

August 4, 2009

COURT MAY ONLY RELY ON PAST ACTS IN SENTENCING

When a court violates a defendant's probation and sends him to prison, the court can only rely on stuff that happened before the initial sentencing, not stuff that happened later. This is codified in Rule 4.435(b)(1). This Court of Appeal applies an exception to that rule.

The defendant's probation was violated then reinstated. His probation was violated a second time. The Court of Appeal holds that the judge may rely on the defendant's conduct between the initial sentencing and the first probation violation.

People v. Black; 2009 DJ DAR 11300; DJ, 8/4/09; C/A 4th