October 30, 2009

PENNSYLVANIA SUPREME COURT THROWS OUT 6500 JUVENILE CASES BECAUSE OF JUDICIAL CORRUPTION

COURT THROWS OUT 6500 JUVENILE CASES BECAUSE OF JUDICIAL CORRUPTION

The PA Supreme Court just threw out 6500 juvenile delinquency cases after
two judges were indicted for taking more than $2.6 million in kickbacks from
private detention facilities to lock the kids up.

The juvenile judges had a plea deal for 7 years in prison which was rejected
by the federal judge as too lenient.

http://www.abcnews.go.com/2020/pa-supreme-court-throws-thousands-juvenile-delinquency-cases/Story?id=8952028&page=2

To see the full story, click HERE.

October 30, 2009

CALIFORNIA CRIMINAL LAW: INVESTIGATING JUROR MISCONDUCT

INVESTIGATION INTO JUROR MISCONDUCT

The law governing investigation of juror misconduct is very poorly understood, as this case illustrates. California Code of Civil Procedure secs. 206 and 237 provide that IF you seek disclosure of juror identification information, the court is supposed to notify the jurors and withhold the information IF the jurors object. Remember, though, that you can interview jurors so long as you aren't seeking disclosure of juror information under 206 or 237, with the restriction that if you talk to them more than 24 hours after verdict, you must tell them (among other things) of their absolute right
not to talk with you. The jurors here objected to disclosure, so the court denied disclosure of juror information. Fine.

But the judge then terminated the inquiry into juror misconduct. The Court of Appeal rules that this was wrong. Sure, disclosure to counsel is to be denied if the jurors object. But that doesn't eliminate the duty of the COURT to conduct an inquiry into juror misconduct if there's some basis to believe that such misconduct occurred. The judge here denied disclosure, then refused to conduct any inquiry himself. Wrong.

The defendant's constitutional right to a fair trial compels judicial inquiry into claims of juror misconduct, even if, after notification, the jurors don't want any disclosure of
their identities to the lawyers.

People v. Tuggles; 2009 DJ DAR 15464; DJ, 10/30/09; C/A 3rd

October 29, 2009

SAN DIEGO CRIMINAL DEFENSE: PACIFIC TOXICOLOGY LABORATORY RESULTS CALLED INTO QUESTION

San Diego County District Attorney Bonnie M. Dumanis office said Monday in a news release that officials were sending a letter out to San Diego-based defense attorneys "apprising them of concerns from a toxicology lab about incorrect test results connected to some criminal cases, primarily misdemeanor cases." So far, no effort has been made to contact defense attorney's outside the county, according to a DA spokesman.

Of course, it's also possible that some people were wrongly convicted.

It's not known how many cases or affected -- or which, for that matter -- but a representative for the DA's office did say most of the cases involve DUI charges. What is known is that there are potential problems with toxicology test samples and test results from June and July of this year.

"When we are told of potential problems like this, we alert the defense bar and work quickly to determine the potential scope and any impact it may have on cases," said Dumanis said in a statement. "Just as we have done in the past, we will investigate thoroughly and share the findings with the appropriate parties as soon as possible."

The DA's office said the lab involved is PacTox (Pacific Toxicology Services), which is based in Chatsworth, Calif., near Los Angeles.

Many questions remain unanswered about the situation, and they apparently will remain that way for now.

"The district attorney’s office will have no further public comment until the results of the investigation are complete," the news release concluded.

Earlier this year, the DA had to deal with a similar situation involving a lab tech from Riverside County who officials said admitted falsifying reports while working for a Colorado lab.

Continue reading "SAN DIEGO CRIMINAL DEFENSE: PACIFIC TOXICOLOGY LABORATORY RESULTS CALLED INTO QUESTION" »

October 28, 2009

SAN DIEGO CRIMINAL DEFENSE LAWYER: TEXT MESSAGES, THREATS AND OBSCENITY

California Penal Code sec. 653m makes it a crime to use an electronic communication device
to threaten to inflict injury or to use obscene language. The minor here texted his strong feelings about his breakup with the victim. The juvenile court found the minor a ward for violating California Penal Code sec. 653m.

The Court of Appeal says that a physical threat is required. Here, the minor threatened to
shoot half the school and himself, but never threatened harm to the victim. The California Attorney General's theory is that the defendant was threatening psychic harm to the victim by making her watch others suffer.

The California Court of Appeal rejects this claim, saying that a threat of actual injury is required. The Court of Appeal also rejects the claim that the statements were obscene. The minor used swear words, but the Court of Appeal says that they just weren't obscene, since they weren't lewd or offensive in light of prevailing notions of decency.

In re C.C
.; 2009 DJ DAR 15312; DJ, 10/28/09; C/A 3rd

October 26, 2009

CALIFORNIA EVIDENCE: SEXUAL ASSAULT EXAMINATION INTERVIEW WAS TESTIMONIAL (CRAWFORD WIN!)

CRAWFORD WIN; SEXUAL ASSAULT EXAMINATION INTERVIEW WAS TESTIMONIAL

The California Court of Appeal here rules in our favor in a Crawford (541 U.S. 36) case, without really applying the new Melendez-Diaz (129 S.Ct. 2527) case from
the United States Supreme Court.

FACTS:

The DA called a nurse to testify. The nurse conducted a sexual assault examination on the victim, during which the victim described the defendant's assault. The California Court of Appeal does a quite thorough job explaining why this statement was testimonial, and thus inadmissible under Crawford. The nurse was essentially an agent of law enforcement whose purpose was to collect evidence for court.

People v. Vargas; 2009 DJ DAR 15118; DJ, 10/26/09; C/A 2nd, Div. 4

CAVEAT: We can now use this to counter the prosecutors' objections that the person who draws blood in DUI cases is not an agent of the government.

October 26, 2009

SAN DIEGO CRIMINAL DEFENSE LAWYER: NO COUNTY JAIL FOR JUVENILES

The 18-year old here was filed on in juvenile court for criminal conduct done while he was a juvenile. The juvenile court ordered him held in county jail pending the adjudication hearing, and
then imposed a disposition of a year in the county jail. Right, we're
rehabilitating these kids by locking them up in jail.

The Court of Appeal correctly concludes that the minor should not have been detained in county jail pending adjudication, and should not have had a disposition of county jail imposed on him. They hold that county jail is not an available juvenile court dispositional alternative.

In re Ramon M
.; 2009 DJ DAR 15115; DJ, 10/26/09; C/A 4th, Div. 3

October 23, 2009

SAN DIEGO CRIMINAL DEFENSE: SECRET TAPES MADE BY COP REVEALED TO DEFENSE

Secret tapes shared with defense lawyers
By Michael Burge
Union-Tribune Staff Writer
2:00 a.m. October 23, 2009

OCEANSIDE — The District Attorney's Office is sharing with defense attorneys secret recordings of suspects' police interviews so they can weigh whether their clients' cases were compromised.

District Attorney spokesman Paul Levikow said yesterday that prosecutors have identified 37 cases in which Oceanside police Officer Damon Smith recorded interviews with suspects but didn't disclose their existence to prosecutors or defense lawyers.

Levikow said the recordings were made between April 2003 and May 2006, and between November 2008 and May 2009, when they came to light.

“The recordings have been or are being made available to the defense attorneys in those cases,” Levikow said. “They can decide how they can proceed.” He said it was unclear why there was a three-year gap between the recordings.

Bill Trainor, an assistant supervisor for the county Public Defender in North County, said he hadn't heard the tapes were being shared. “Neither (North County branch Supervisor) Larry Beyersdorf nor myself have been notified in either an official or unofficial capacity,” Trainor said. “I'm disquieted by this information.”

Trainor said he recently spoke with Summer Stephan, operations chief for the District Attorney's North County branch, “and she said there's an investigation in the downtown DA's office” into Smith's activities.”

Levikow said he had no comment on whether such an investigation was under way.
Other defense attorneys contacted said they had not yet heard from the district attorney whether cases of theirs were affected.

A spokesman for Oceanside police declined to say whether Smith was disciplined. Sgt. Kelan Poorman said such information is prevented from disclosure by the Peace Officer's Bill of Rights.

October 23, 2009

CALIFORNIA CRIMINAL THREATS: ATTEMPTED CRIMINAL THREATS AND REASONABLENESS OF THE VICTIM'S FEAR

ATTEMPTED CRIMINAL THREATS AND REASONABLENESS OF THE VICTIM'S FEAR

In order to violate California Penal Code sec. 422, criminal threats, the victim must be in
reasonable fear for his or her safety. The defendant here was charged and convicted of attempted 422. But the judge failed to instruct the jury that it must be reasonable for the victim to have suffered fear as a result of the threat. The California Attorney General argues that reasonableness isn't required for attempted Penal Code sec. 422. The Court of Appeal disagrees. They reverse for failure to properly instruct the jury.

People v. Jackson; 2009 DJ DAR 15090; DJ, 10/23/09; C/A 6th

October 21, 2009

UNITED STATES SUPREME COURT DECLINES TO HEAR "ONE SWERVE" ANONYMOUS TIPSTER DUI CASE

United States Supreme Court Chief Justice Samuel Alito lobbied hard to gain enough colleagues to vote to hear a DUI case out of Virginia where the cop pulled over a driver based solely on the tip from an anonymous tipster that he saw the driver "swerve once." The cop, however, saw no bad driving himself.

That's not a good enough case to make a majority of the U.S. Supremes take it on. In fact, it is a major win for the Constitution. That a cop should be able to suspend the Fourth Amendment rights of a citizen based on an anonymous tipster is ludicrous. So implied the remainder of the justices that declined Alito's push to hear this ridiculous case.

CLick HERE for the news story on the case.

October 19, 2009

SAN DIEGO POLICE SHOOT UNARMED WOMAN IN STOLEN CAR

San Diego police shoot an unarmed woman as she sat in a car stolen by her boyfriend. For more on the story, click HERE.

October 15, 2009

CALIFORNIA CRIMINAL DEFENSE LAWYER: JOINTLY CHARGED DEFENDANTS, DELAYS WITH GOOD CAUSE, AND TRAILING

Defendants A and B are jointly charged in a felony. Day 60 comes up. Defendant A's lawyer is sick; he waives time. B objects. The case is continued, the court finds good cause to delay A and thus good cause to delay B under California Penal Code sec. 1050.1.

The DA has 10 days to bring A to trial after the new, agreed-to date. What about B? There's no actual case on this, incredibly.

The DA cites California Penal Code sec. 1050.1, enacted by Prop. 115 in 1990, which says that where one defendant shows good cause for a continuance, that's good cause for jointly charged co-defendants. Right, that gets the DA to the new date. But what about the 10-day trailing period?

The DA gets the 10-day trailing period on A in our hypo, because A's delay was with consent. But the Court of Appeal says that the DA doesn't get it for B, whose case was delayed only for good cause. A delay for good cause doesn't trigger the 10-day trailing period. So unless the DA has good cause to delay B for the 10 days, the DA has to proceed on that next date.

They didn't here, so the case is dismissed. Nice win for SF PD.

Smith v. Superior Court; 2009 DJ DAR 14823; DJ, 10/15/09; C/A 1st

October 15, 2009

CALIFORNIA CRIMINAL LAW: CLIENT CONTROLS WHETHER OR NOT TO PLEAD NOT GUILTY BY REASON OF INSANITY

The defendant really wanted to plead not guilty by reason of insanity (NGI). But there wasn't any basis for the plea, so counsel refused to enter it. This is wrong. The client controls only a few things in a case, but entering pleas is one of them; including entering an NGI plea. The odd part of this case is that the C/A finds error, then finds it harmless, because there was no evidence of NGI. But don't you need a hearing to determine that? You shouldn't be able to
determine it based solely on stuff counsel said on the record.

People v. Henning; 2009 DJ DAR 14828; DJ, 10/15/09; C/A 3rd

October 14, 2009

CALIFORNIA CRIMINAL DEFENSE: REQUIREMENTS FOR THE GANG ENHANCEMENT

REQUIREMENTS FOR THE GANG ENHANCEMENT

California Penal Code sec. 186.22(b) is an enhancement for crimes done for a gang. There
are two Ninth Circuit cases (Briceno, 555 F.3d 1069; Garcia, 395 F.3d
1099) which say that because Penal Code sec.186.22(b) requires that the crime be committed with the specific intent to promote the gang, it is insufficient to show mere membership in the gang coupled with an expert's generic testimony that all gang members commit crimes with the
specific intent to promote the gang. California state court cases reject this position, and this Court of Appeal also rejects this position. The California state courts and the 9th Circuit are locked in mortal combat.

People v. Vasquez; 2009 DJ DAR 14778; DJ, 10/14/09; C/A 2nd, Div. 6

October 13, 2009

CALIFORNIA CRIMINAL LAW: STRANGE CASE ON OBTAINING A FINDING OF FACTUAL INNOCENCE.

THE REQUIREMENTS NECESSARY TO OBTAIN A FINDING OF FACTUAL INNOCENCE

This defendant won at preliminary examination. He then sought a finding of factual innocence (Penal Code sec. 851.8), which was denied. He appeals. Even a finding that there wasn't proof beyond a reasonable doubt doesn't ensure a factual innocence finding. Such a finding requires a determination that there was no reasonable cause to believe that the def. did the crime.
The prosecution could prove guilt to a preponderance, which would be insufficient for proof beyond a reasonable doubt but might also show reasonable cause that the def. did it.

The Court of Appeal here cites a case so ruling. But here the defendant won at the prelim. The Court of Appeal just says that the same rule applies. Isn't that wrong? The standard of proof at a prelim. is precisely reasonable cause, the very same standard, right?

People v. Bleich; 2009 DJ DAR 14750; DJ, 10/13/09; C/A 3rd

October 13, 2009

CALIFORNIA CRIMINAL LAW: TRIPLING LIFE SENTENCES? NO!

TRIPLING LIFE SENTENCES

The defendant here got life without parole (LWOP); tripled! Hey, he had many strike priors. The Court of Appeal says that the strike law provides for doubling of determinate terms and the minimum terms of indeterminate sentences. The same rule applies here. Since the sentence was indeterminate, it doesn't get tripled.

People v. Coyle; 2009 DJ DAR 14737; DJ, 10/13/09; C/A 3rd

October 12, 2009

San Diego DUI Defense: San Diego Saved from First Time Ignition Interlock Requirements in DUI cases.

San Diego Dui Offenders will be spared the requirement of installing Ignotion Interlock Devices in their cars if they are convicted of a first offense.

Governor Swartzenegger signed a bill requiring first time offenders in Sacramento, Alameda, Tuare and Los Angeles counties to install ignition interlock devices.

What is so strange about this bill is that it omits the majority of counties, including San Diego, Orange, Riverside, etc...

We can expect a substantial equal protection challenge from criminal defense attorneys in the counties where this requirement takes effect in January.

For more, see: http://www.mercurynews.com/news/ci_13539936

October 9, 2009

CALIFORNIA CRIMINAL EVIDENCE: ARANDA, BRUTON, AND REDACTION

When the DA offers into evidence a nontestifying co-defendant's statement implicating your client, Aranda (63 Cal.2d 518) and Bruton (391 U.S. 123) bar
admission of that statement. The solution is often to redact the statement to delete your client's name and insert a pronoun. Often, this isn't enough. The California Supreme Court restate all this, noting that where, as here, the reference to "the other" led to the obvious
inference that it was the def, the redaction doesn't cure the Aranda/Bruton error.

Harmless error here.

People v. Burney; 2009 DJ DAR 12090; DJ, 8/17/09; Cal. Supremes

October 9, 2009

PREPARING AND OFFERING FALSE DOCUMENTS FOR TRIAL

California Penal Code sec. 132 makes it a felony to offer false evidence at a trial. Defense counsel USED a false document to impeach the prosecution's witness (apparently successfully). Is this OFFERING? Yep, says this Court of Appeal, close enough for government work. Penal Code sec. 134 makes it a felony to prepare a false document for use at trial. Here, the defendant induced DMV to create the false document. You guessed it, again it's close enough for government work.

People v. Bhasin; 2009 DJ DAR 11626; DJ, 8/10/09; C/A 4th

October 8, 2009

SAN DIEGO CRIMINAL DEFENSE: CONSENSUAL LEWD ACTS CAN STILL REQUIRE MANDATORY SEX REGISTRATION

Here is another Hofsheier (27 Cal.4th 1185) case, this one a loss. In Hofsheier, the California Supreme Court struck down the mandatory sex registration requirement for California penal Code sec. 288a, consensual oral copulation with a minor (16 in that case) as violative of equal protection, because consensual sex with that same minor (Penal Code 261.5) doesn't mandate Penal Code 290 sex registration.

This case involves mandatory registration for violation of Penal Code 288(c)(1), lewd acts with a minor 14 or 15 by a person more than 10 years older.

Here are the Court of Appeal's reasons for saying Hofsheier doesn't apply. First,
288(c)(1) requires specific intent! Right, you can certainly have consensual sex with a minor without any intent to do so. Second, the requirement that the def. be more than 10 years older somehow justifies distinguishing Hofsheier. Third, 288(c)(1) victims are 14 or 15, while the victim in Hofsheier was 16. Right. Huh?

So does this mean that every person who has sexual conduct with a person who is 14 or 15, when the defendant is 10 or more years older, is required to register, no matter what
form that sexual conduct may take? There is thus no group of people who commit this offense who are not required to register, unlike the Hofsheier situation, where oral cop was registrable but intercourse was not. Consequently, there is no group of "similarly situated" people who do not have to register.

Just to restate this, consensual sex or oral copulation with a 16-year old, no mandatory registration. Hugging a 15-year old with lewd intent, mandatory registration.

People v. Cavallaro; 2009 DJ DAR 14563; DJ, 10/8/09; C/A 6th

October 7, 2009

CALIFORNIA CRIMINAL LAW: PITCHESS CAN PROPERLY BE DENIED WHEN IT'S UNDISPUTED THAT THE DEFENDANT

Here is a new Pitchess case from the California Court of Appeal.

The police claimed that the defendnat evaded them and tried to back his truck into their motorcycles. Now here's the key point; the defendant admitted this on tape to the police. The
defense ran a Pitchess motion, claiming that the police report was false and the defendant didn't try to run the police over. Pitchess discovery
denied. Affirmed.

The Court says that there are limits to Pitchess discovery, by George, and you can't get discovery when the defendant himself admitted to the police that he did it. Claims by the police
that the defendant admitted guilt are always problematic, as this case illustrates. If that's the claim in your case, you MUST address that claim. The Court stresses that the police claim that the defendant confessed was undisputed.

So dispute it. You MUST dispute it, if you can in good faith, by denying it. Or you're gonna lose. As this defendant did.

People v. Galan; 2009 DJ DAR 14501; DJ, 10/7/09; C/A 2nd, Div. 6

Continue reading "CALIFORNIA CRIMINAL LAW: PITCHESS CAN PROPERLY BE DENIED WHEN IT'S UNDISPUTED THAT THE DEFENDANT " »

October 6, 2009

CALIFORNIA CRIMINAL DEFENSE: THE DEFENSE HAS THE RIGHT TO A PARTISAN DEFENSE EXPERT

THE RIGHT TO A PARTISAN DEFENSE EXPERT

the Ninth Circuit reverses this death case from Arizona for ineffective assistance of counsel (IAC). There's a lot about the failure to investigate. But here's what is of note.

The court appointed an expert, who helped the defense a lot. The Ninth Circuit finds IAC for failure to get a "partisan expert," that is, an expert confidential to the defense, with an obligation to further the interests of the defense, and who would assist in the evaluation, preparation, and presentation of the defense.

There's an excellent discussion here of your right to such an expert, which I hope we can use to get the experts we need, in all our cases, not just death penalty cases.

Jones v. Ryan; 2009 DJ DAR 14456; DJ, 10/6/09; 9th Cir. Fed C/A

October 4, 2009

CONSENSUAL SODOMY WITH A MINOR AND MANDATORY SEX OFFENDER REGISTRATION

here we have yet another Hofsheier (37 Cal.4th 1185) case. Hofsheier held that the mandatory registration requirement in California Penal Code sec. 290 for consensual oral sex with a minor violated equal protection, because registration isn't mandatory for consensual sexual intercourse with a minor.

This case involves consensual sodomy with a minor, a violation of California Penal Code sec. 286. The Court of Appeal holds that mandatory 290 registration for this offense also violates equal protection. But the Court of Appeal remands for consideration of discretionary
registration.

To do so, the trial court must find that the crime was committed as a result of sexual compulsion or for sexual gratification AND the court states reasons for requiring registration. Garcia (161 Cal.App.4th 475) said that this latter point means that even if the offense was done for sexual gratification, the trial court has discretion to
weigh the reasons.

Of note in this case is a weirdo concurring opinion, concurring in the result but complaining that minors can't really consent to sex and we should stop saying that they do. Huh?

People v. Thompson; 2009 DJ DAR 14309; DJ, 10/1/09; C/A 1st

October 3, 2009

CALIFORNIA CRIMINAL LAW: CAN YOU ROB YOURSELF?

The defendants robbed a jewelry store, taking $4.5 million at gunpoint from the employees. The DA's theory was that it was an inside job, with the store owner setting the whole thing up. Hey, it can't be a robbery or even a theft if the owner consents, right?

You guessed it, the Court of Appeal makes up a special rule: even if the owner consents to the taking of property, it's still a robbery if the thieves take the property by force or fear from the custody of employees who are unaware of the consent.

What about Tufunga (21 Cal.4th 935), where the California Supreme Court said that
taking back your property, even by force, isn't a robbery so long as you are trying to take back your actual property, because there's no intent to steal another's property? The Court of Appeal says that Tufunga is inapplicable because this is an "unusual fact situation."

How does that change the fact that the property being taken isn't someone else's? And doesn't
this mean that the OWNER is also guilty of aiding the robbery? Of his own property?

People v. Smith; 2009 DJ DAR 14323; DJ, 10/1/09; C/A 1st