September 30, 2009

CALIFORNIA CRIMINAL LAW: IS A FENCED YARD A PUBLIC PLACE?

IS A FENCED YARD A PUBLIC PLACE?

The officer saw the defendant with a handgun protruding from his pocket. Smart, buddy.

The defendant was in his yard, a fenced front yard of a single family house. The officer ran after the defendant, who went inside his house. The officer officer went inside and told the defendant to stop. The defendant dropped a bag of cocaine and then stopped. The AG tries to uphold this search based on the claim that the defendant violated PC 12031, carrying a loaded firearm in public.

So is the fenced-in yard a public place? This California Court of Appeal says no, a public place is an area where a stranger is able to walk without challenge. The fence precluded that. The fact that there was an unlocked gate doesn't matter either. The defense wins. Whee!

People v. Strider; 2009 DJ DAR 14261; DJ, 9/30/09; C/A 2nd, Div. 3

September 28, 2009

CALIFORNIA CRIMINAL LAW: CAMPUS SECURITY GUARDS ARE NOT COPS!

ARE CAMPUS SECURITY GUARDS PUBLIC OFFICERS FOR PURPOSES OF PENAL CODE SECTION 148?

Campus security guard Bryan Butts chased this minor, yelling at him to stop. The minor kept on going. A police officer showed up and told the minor to stop, and the minor did so. The minor was found a ward for a violation of PC 148. 148 makes it a crime to resist a "public
officer."

Is a campus security guard a "public officer"? Nope.

In re M.M.; 2009 DJ DAR 14161; DJ, 9/28/09; C/A 4th

September 28, 2009

SAN DIEGO CRIMINAL DEFENSE ATTORNEY MARY FRANCES PREVOST: ARE CAMPUS SECURITY GUARDS PUBLIC OFFICERS FOR PURPOSES OF PENAL CODE?

Campus security guard Bryan Butts chased this minor, yelling at him to stop. The minor kept on going. A police officer showed up and told the minor to stop, and the minor did so. The minor was found a ward for a violation of California Penal Code sec. 148. 148 makes it a crime to resist a "public officer." Is a campus security guard a "public officer"? Nope.

In re M.M.; 2009 DJ DAR 14161; DJ, 9/28/09; C/A 4th

September 28, 2009

CIVIL RIGHTS: SHOULD PROSECUTORS WHO MANUFACTURE EVIDENCE BE HELD LIABLE?

A prosecutor manufacturers evidence in order to win a conviction. After the convicted serves 25 years in prison, exculpatory evidence pointing to another perpetrator surfaces. The convicted is released. Should he be able to sue the prosecutor who concocted the false evidence used to convict him?

Believe it or not, it's still an open question. In November, the Supreme Court will hear arguments on Pottawattamie v. McGhee in order to resolve it. The facts of the case aren't in dispute.

In 1978, a retired Iowa police captain was killed by a shotgun blast while working as a private security guard. Prosecutors Joseph Hrvol and David Richter then worked with local police to manufacture evidence against the two chief suspects, Terry Harrington and Curtis McGhee, Jr. The two men were convicted of the murder in separate trials, and each was sentenced to life without parole.

To read the article in Reason online, click HERE.

September 24, 2009

CRIMINAL LAW & PROCEDURE, SENTENCING ENHANCEMENT VACATED

Trial court's imposition of enhanced sentencing on a defendant convicted of receiving stolen property while on a release from custody on his own recognizance (O.R.) is vacated as Penal Code section 1318 was not complied with in connection with defendant's release from custody and defendant did not commit a new felony while on an O.R. release. Therefore, since defendant's release did not qualify as an O.R. release under applicable law, the enhancement findings under section 12022.1 were not supported by the evidence

People v. Hernandez, No. F055430

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September 23, 2009

IMPERIAL COUNTY PROSECUTOR ARRAIGNED ON DOMESTIC VIOLENCE CHARGES

A local Imperial County newspaper has learned that veteran drug prosecutor Jon Willis will be arraigned on domestic violence charges for allegedly hitting his wife with a beer can.

http://www.ivpressonline.com/articles/2009/09/23/local_news/news02.txt

September 23, 2009

JUDGE ORDERS CRIMINAL DEFENSE ATTORNEY NOT TO SPEAK IN DEATH PENALTY TRIAL

Man on trial for his life in Berkeley
By Robert Behre, The Post and Courier, September 22, 2009

MONCKS CORNER -- As opening arguments began Monday in the death penalty trial of Colin Broughton, defense attorney Bill McGuire said he agreed with much of what the prosecution has asserted in court….

If the jury convicts Broughton, 25, of murdering his aunt, Shirley Mae Birch, a second phase of the trial will begin, and jurors will decide if Broughton should serve a sentence of life in prison or be put to death.

Any death sentence would be appealed, and recent behind-the-scenes maneuvering in the case has raised the question of whether this death sentence would hold up.

Before the trial began, a judge told one of Broughton's three attorneys, Charleston County public defender Beattie Butler, that he may not speak in court unless a judge questions him….

Rauch Wise, a Greenwood lawyer on the board of the National Association of Criminal Defense Lawyers, said the order banning Butler from speaking could be fertile ground for an appeal, particularly because the order didn't come in response to any disruptive behavior by Butler in the case.

"I just think it goes against American tradition to tell a defendant that you can't be heard by competent counsel who is there to defend you in the courtroom," Wise said. "It just simply makes no sense."…

http://www.postandcourier.com/news/2009/sep/22/man-on-trial-for-his-life-in-berkeley/


September 23, 2009

DISMISSAL OF CASES CONTINUED PAST THE LAST DAY BECAUSE OF COURT CONGESTION

DISMISSAL OF CASES CONTINUED PAST THE LAST DAY BECAUSE OF COURT CONGESTION

This is the latest in the series of cases out of Riverside where there's no court available and the case goes past the last day for trial. The California Court of Appeal upholds the trial court's dismissal, rejecting the DA's claims that civil trials have to be interrupted, and that a review of
all courts must be conducted to ensure that only criminal trials are
occurring.

The DA claims mismanagement (though why that should avoid dismissal is beyond me), but the Court of Appeal rejects that, saying that there was just court congestion and thus not good cause. The Court of Appeal affirms two good Riverside appellate division cases, Flores (179 Cal.App.4th Supp. 9) and Cole (165 Cal.App.4th Supp. 1).

People v. Wagner; 2009 DJ DAR 10829; DJ, 7/23/09; C/A 4th

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September 22, 2009

SAN DIEGO CIVIL RIGHTS LAWYER: PLAINTIFF WINS SLAPP MOTION ATTACK

Tichinin v. City of Morgan Hill, No. H031019

In plaintiff's 42 U.S.C. section 1983 suit against a city for adopting a resolution condemning him for hiring a private investigator to conduct surveillance of the city manager, trial court's grant of city's anti-SLAPP motion is reversed as plaintiff's 1983 action is based on conduct that qualifies for protection under the anti-SLAPP statute and plaintiff made a prima facie showing of success on the merits where his evidence would support findings that:

1) he was engaged in conduct protected by the First Amendment rights to petition and right of free speech;

2) the city took adverse action in response to his conduct with the intent to retaliate against him and deter that conduct; and 3) the city's adverse action caused injuries that would deter a person of ordinary firmness from engaging in that conduct.

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September 21, 2009

CALIFORNIA EVIDENCE: EXPERT DOESN'T MEET KELLY REQUIREMENT

Two issues arise in this interesting criminal case:

[1] Kelly rule (formerly Kelly-Frye), forensic image enhancement expert (for fuzzy photographs) was properly excluded where the expert could neither identify the software he used nor "satisfactorily explain the nature of the process he used."

That the software was commonly used is not enough.

[2] There was no duty to inform spouse testifying against her husband of the spousal privilege.

People v. McWhorter (2009) 47 Cal.4th 381 (Baxter 7-0)

September 16, 2009

CALIFORNIA SEX CRIMES: FULL CONSECUTIVE SENTENCES AND JESSICA'S LAW

FULL CONSECUTIVE SENTENCES AND JESSICA'S LAW? NO

California Penal Code sec. 667.6(c) provides for full consecutive sentences for sex crimes. Until Jessica's Law was enacted, 667.6(c) said that the defendant got a full consecutive sentence for "each violation" of a specified sex offense, whether or not the crimes were committed during a single transaction.

Jessica's Law (Prop. 83), effective 11/8/06, repealed 667.6(c) and said instead that the defendant gets a full consecutive sentence for each crime involving the same victim on the same occasion. Clear, yes? Well, the AG argues here that the purpose of Jessica's Law was to strengthen the laws applicable to sex offenders, so the Court of Appeal should rewrite the statute to its previous version.

This Court of Appeal declines to do so, ruling that a general statement of intent can't overcome the express and clear statutory language.

People v. Goodliffe; 2009 DJ DAR 13697; DJ, 9/16/09; C/A 3rd

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September 14, 2009

EX-MAIMI DEA CHIEF INDICTED IN ALLEN STANFORD SCANDAL

Ex-Miami DEA chief indicted in Allen Stanford scandal
By MICHAEL SALLAH AND ROB BARRY

The former chief of the U.S. Drug Enforcement Administration's Miami office who led the agency's cases against infamous Panama strongman Manuel Noriega and Medellín cartel kingpin Fabio Ochoa was indicted by a federal grand jury Thursday for ordering the shredding of records belonging to disgraced banker Allen Stanford.
Tom Raffanello, who left the DEA five years ago to become Stanford's local security chief, was charged with ordering workers to destroy thousands of documents just days after government agents shut down the banking empire in a massive fraud case.

Prosecutors say the records -- including secret background reports on employees and potential investors -- were hauled away from the company's security bunker in Fort Lauderdale after a federal judge ordered that no company paperwork be destroyed.

September 14, 2009

SAN DIEGO DUI DEFENSE: WILL COPS BE ABLE TO TAKE YOUR BLOOD AT THE SIDE OF THE ROAD?

BOISE, Idaho (AP) — When Officer Darryll Dowell of the Nampa Police Department is on patrol, he will pull up at a stoplight and start casing the vehicle next to him. Nowadays, his eyes will also focus on the driver’s arms, searching for a plump, bouncy vein.

“I was looking at people’s arms and hands, thinking, ‘I could draw from that,’ ” Officer Dowell said.

The thought stems from training he and a select cadre of officers in Idaho and Texas have received in recent months in drawing blood from people suspected of driving under the influence of drugs or alcohol. The aim of the federal program is to determine if drawing blood by law-enforcement officers can be an effective tool against drunken drivers and aid in their prosecution.

If the results seem promising after a year or two, the National Highway Traffic Safety Administration will encourage law-enforcement officers nationwide to undergo similar training.

The Supreme Court ruled in 1966 that the police could have blood tests forcibly done on a drunken-driving suspect without a warrant, as long as they were based on a reasonable suspicion that a suspect was intoxicated, and they were done after an arrest and carried out in a medically approved manner.

The practice of law-enforcement officers drawing blood, first done in Arizona in 1995, has raised concerns, though, about safety and the credibility of the evidence.

“I would imagine that a lot of people would be wary of having their blood drawn by an officer on the hood of their police vehicle,” said Steve Oberman, chairman of the National Association of Criminal Defense Lawyers’ committee on driving while intoxicated….

For more on this story: http://www.nytimes.com/2009/09/14/us/14blood.html?_r=1&ref=us

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September 11, 2009

SAN DIEGO CRIMINAL DEFENSE: LYING WITNESS AND JURY INSTRUCTIONS

Perhaps the single jury instruction most deeply burned into our brains is the one that says that a witness shown to have lied on one point is to be disbelieved on everything.

CALJIC 2.21.2 expresses this:

"A witness, who is willfully false in one material part of his or her testimony, is to be distrusted in others. You may reject the whole testimony of a witness who willfully has testified falsely as to a material point, unless, from all the evidence, you believe the probability of truth favors his or her testimony in other particulars."

Oops, the CALCRIM says this differently: "If you decide that a witness deliberately lied about something significant in this case, you should consider not believing anything the witness says; or, if you think the witness lied about some things, but told the truth about others, you may simply accept the part that you think is true and ignore the rest." (CALCRIM 105, 226.)

You can see that this is greatly watered down.

Instead of telling the jury that they are to distrust everything the witness says, the instruction now says you should "consider" not believing everything else. So is this OK? Oh, sure. You'll love this; this California Court of Appeal says that this might help YOU; a defense witness shown to be false wouldn't have to be distrusted. See, we're just trying to help you.

People v. Lawrence; 2009 DJ DAR 13265; DJ, 9/9/09; C/A 5th

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September 9, 2009

FOURTH MELENDEZ-DIAZ CASE: WE WIN AND WE LOSE THIS ONE

This is the fourth California Court of Appeal case applying Melendez-Diaz (129 S.Ct. 2527). And this Court of Appeal splits the baby in half.

Melendez-Diaz held that use of affidavits from criminalists violated the 6th Amendment. Even the DAs agreed that Melendez-Diaz wiped out Geier (41 Cal.4th 555), the case from the California Supremes which said it was OK for a supervisor to testify to the results of a test done by a subordinate, even though the
supervisor never saw the actual test.

This Court of Appeal claims that Geier is distinguishable from Melendez-Diaz for two reasons. First, in Geier the supervisor testified, while no one testified in Melendez-Diaz.

Second, the affidavit in Melendez-Diaz was prepared a week after the test, while
the report in Geier was prepared at the time of the test. Incidentally, I can't imagine how your DA could ever prove when the report was prepared, other than by inadmissible hearsay.

Anyway, the Court of Appeal says that descriptions in the report about the physical exam of the victim are admissible, but the narrative description by the victim about the injuries is testimonial and thus not admissible. Then they find harmless error.

We now have two outright wins, one loss, and this wacko case.

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

http://www.courtinfo.ca.gov/opinions/