November 25, 2009

CALIFORNIA DUI: HOW TO AVOID A DUI ARREST THIS THANKSGIVING

It's starting now. Police agencies all over San Diego are setting up roadblocks, and putting officers on overtime, to make as many DUI arrests as possible. Hopefully, the tips below will come in handy for you over this Thanksgiving holiday. Here's my take on "how to Avoid a DUI" in California.

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1. If you drive in San Diego during Thanksgiving, and you plan on having a cocktail or two, make sure you know where your license, registration and proof of insurance are. San Diego DUI officers historically write in their San Diego DUI reports (putting only facts that harm you in them) that the suspect "fumbled for his wallet" and couldn't find his registration. They use this to try to show you were impaired. Be prepared.

2. When you get signaled by the San Diego DUI officer to pull over for a DUI assessment, do so immediately and safely. Roll down your window and put your hands on the steering wheel.

3. If a San Diego DUI officer asks you if you know why you are being pulled over, remember you don't have to answer. What a dumb question! He knows why he is pulling you over. He is pulling you over to assess you for drunk driving, and he's using the fact that you might have committed some minor vehicle code violations as an excuse. Don't make any admissions to him. So, you can just ask him, "why?"

4. The next question the San Diego DUI officer is likely to ask is, "Have you had anything to drink tonight." Remember your rights? You are not required to speak to officers. I know, I know, you think, "But if I don't talk to the officer, he will be mad." Let him be. You are not at a social gathering; he is not invited to your next birthday party. So don't worry about how he feels. He is collecting evidence against you. Don't give him any. It is best to say, "Officer, I appreciate what you do for a living, but I don't wish to answer any of your questions." You do NOT have to answer. The less from you he gets, the better for you in the long run. He is gathering evidence. But, you say, maybe he will let me go if he knows I'm being honest with him. NO. Most people who are pulled over and have alcohol on their breath get arrested. It's just a fact of life. Don't give him anything to put in that report that he can use against you later.

5. He may then say, "I'd like you to complete a series of tests for me." Again, let him know that you do not wish to participate in any tests. You are not required to comply. San Diego DUI officers try to give a series of field tests to determine if you are impaired. I have NEVER known any officer to do these as per the standardized protocol. I hold a certification authorized by the United Stated Department of Transportation to administer these tests, and was required to pass a practical and written test to get that certification given by a nationally re-known sergeant with the Idaho State Police. Cops learn how to do these, and then promptly forget them, making up their own "tests." Do not do them. Do NOT let the officer collect more false "evidence" against you. Just reiterate that you do not wish to perform and tests. It's your right.

6. The San Diego DUI investigation officer may then tell you he wants you to take an in field breath, hand held, breath test. Do not take this "test." It is unreliable, and regularly exhibits blood alcohol numbers higher than what you really are. The cop really, really wants you to do this now, because you have made no statements, and you have refused his field "tests." He wants this badly. He NEEDS some evidence. Do not do it. You are NOT required to blow into the little hand held machine.

7. The officer will most likely arrest you, cuff and take you downtown. You will be required to take a breath or blood test. You must choose to take one of these tests, or he will take what is called a "forced blood test" and your driver's license will be suspended for a full year.

A few pointers: If you are still absorbing alcohol, the breath test will read high. It is also an INDIRECT measurement of blood alcohol level. If you take blood, you won't get a result for at least a week. Also, SDPD and Sheriff's don't use the proper amount of sodium fluoride and potassium oxalate in the blood tubes, so you can attack those results later. Personally, I wouldn't let anyone hired by the city or county to draw my blood, after learning all I know about the incompetence of the people drawing the blood, and the lack of sanitations protocol in place. Why risk infection? (See, article on frightening practices in the San Diego crime lab).

If you are arrested, you will be released within 12 hours on your promise to appear. You will received a pink piece of paper called a "DS-367." This document tells you that you, or your lawyer, must call the Department of Motor Vehicle within ten days of the arrest to secure a hearing to determine whether or not the DMV will take your license. Do not miss this deadline or you will be suspended automatically.

So, be careful. Don't drink and drive if you can help it. Drive safely. Don't talk to cops. Be polite, but do not let them gather inculpatory evidence against you. And when you get home call this San Diego DUI Defense lawyer.

Continue reading "CALIFORNIA DUI: HOW TO AVOID A DUI ARREST THIS THANKSGIVING" »

November 25, 2009

CALIFORNIA CRIMINAL LAW: SLEAZY POLICE TACTICS TO GET CONFESSIONS ARE JUST FINE

The officer arrested the defendant and placed him in the police car. The officer advised the def. of his Miranda rights but did not seek or obtain a waiver of those rights. The officer then walked away for 5 to 10 minutes. The officer then returned and got admissions, again without a waiver. The officer admitted that not asking for a waiver and delaying before actually
asking incriminating questions were part of his interrogation technique.

In Missouri v. Siebert (542 US 600), Souter warns against sleazy tactics by the police in obtaining statements. This Court of Appeal assures us that Souter's opinion was only a plurality opinion and so doesn't need to be followed, and that thus the admission of the statement is just fine.

People v. Rios; 2009 DJ DAR 16280; DJ, 11/20/09; C/A 2nd, Div. 5

November 25, 2009

PENAL CODE SECTION 654 AND GANG ENHANCEMENTS

The defendant was convicted of robbery, with a gang enhancement, and the substantive crime of being a member of a gang. He got concurrent time for the membership count. But Penal Code sec. 654 bars multiple sentences for a single act.

This California Court of Appeal rules that being a member of a gang isn't a crime; the crime is actively participating in a street gang by assisting in the commission of felonious conduct by the gang, meaning that there has to be a crime. So Penal Code sec. 654 is violated by punishment for both gang membership and a gang enhancement.

People v. Sanchez; 2009 DJ DAR 16464; DJ, 11/24/09; C/A 4th, Div. 2

November 24, 2009

MERE CONCLUSIONS BY THE POLICE GANG EXPERT ARE NOT ENOUGH FOR THE GANG

It's amazing how everything gang members do is for the gang. Or at least the police gang "expert" will so testify.

This is the latest in a series of cases where appellate courts aren't accepting mere claims that the crime was done for the gang.

This was a carjacking. Oh sure, the police expert testified that it was for the gang. But apart from that conclusory claim, there wasn't any evidence: there was no display of gang signs or anything else. Sure, the carjacking could benefit the gang, but there was no evidence that it
actually did so. The Court of Appeal, "The gang enhancement cannot be sustained solely on defendant's status as a member of the gang and his subsequent commission of crimes." Reads like a jury instruction, no?

People v. Ochoa; 2009 DJ DAR 16454; DJ, 11/24/09; C/A 4th, Div. 2

November 18, 2009

COP SENTENCED FOR STEALING PART OF DEFENSE ATTORNEY'S FILE; SHERIFF'S DEPARTMENT SUPPORTS HIS CRIMINAL BEHAVIOR

A Maricopa County Sheriff's detention officer was found in contempt of court Wednesday for his decision to remove a document from a defense attorney's file during a sentencing hearing last month. [To see the full contempt opinion, click Download file]


[This begs the question: why isn't this cop being charged with a crime for stealing a defense attorney's property? This is absolutely outrageous when defense attorneys must bring colleagues to watch their belongings because the cops might steal from them]

The officer was ordered by a judge to hold a press conference to apologize for his actions - an order that Sheriff Joe Arpaio immediately said would be defied.

“My officer was doing his job and I will not stand by and allow him to be thrown to the wolves by the courts because they feel pressure from the media on this situation,” Arpaio said in a press release. He further said, "I decide who holds press conferences and when they are held regarding this Sheriff’s Office.”

Superior Court Judge Gary Donahoe ruled that Officer Adam Stoddard acted in contempt when he pulled two pieces of hand-written paper out of attorney Joanne Cuccia's file on Oct. 19 during a sentencing hearing for Antonio Lozano.

Stoddard testified earlier this month that he saw four words - "going to" "steal" and "money" - in a document sticking out of Cuccia's file that led him to believe Lozano posed some sort of security threat.

The "totality of circumstances" taking place in the court room that day, including the presence of Lozano's associates and Stoddard's belief that Lozano had some history with the Mexican Mafia, all informed his decision, the detention officer testified.

Donahoe disagreed, finding that the presence of those four words on the document didn't pose any immediate security threat and that in removing the privileged communication from Cuccia's file, Stoddard acted unreasonably.

"Even giving DO Stoddard the benefit of the doubt that he had a right to scan the entire paragraph which was in plain sight after seeing the "key words" to determine if Defendant presented an immediate security risk, nothing in that paragraph justified DO Stoddard's continued conduct of removing the document from counsel's file and having the document copied," Donahoe wrote.

Donahoe found that another deputy working in court that day, Francisco Campillo, who made a copy of the documents Stoddard seized, did not act in contempt.

During a hearing last week, Donahoe wrestled with an appropriate punishment for Stoddard if he were to be found in contempt. Cuccia had expressed concerns about the damage to her professional reputation, particularly after Sheriff Joe Arpaio, in a written statement, seemed to excuse Stoddard's actions by linking Cuccia with two attorneys were recently sentenced for or arrested on suspicion of smuggling contraband to inmates.

By Tuesday, Donahoe had determined that Stoddard should hold a news conference outside the Central Court Building by Nov. 30 and offer Cuccia "a sincere verbal and written apology for invading her defense file and for the damage that his conduct may have caused to her professional reputation."

If Stoddard refuses, or Cuccia is not satisfied with the apology, Donahoe ordered Stoddard to report to jail on Dec. 1.

The case became national news after surveillance footage emerged that shows Stoddard move behind Lozano and take a few steps forward before looking down at the defense attorney's table. The footage shows Stoddard pulling out a document sticking out of a file. Stoddard then calls over a Campillo to make copies.

Lozano, 26, was appearing before Judge Lisa Flores to receive his sentence for an aggravated assault he had pleaded guilty to in September, though Stoddard's decision to remove the document calls that into question, too: a public defender said she was going to file a motion to dismiss the case and ask for a change of venue.

November 15, 2009

EXIGENT CIRCUMSTANCE SEARCHES FOR MISSING PERSONS

This California Court of Appeal ends up upholding the search in this case based on exigent
circumstances. The details are long and exhausting, but essentially the Court of Appeal says that there are exigent circumstances when a reliable missing person report is made under circumstances strongly suggesting that the missing person is injured or worse, and where a reasonably cautious person would believe the action was appropriate.

The Court of Appeal also upholds a car search, relying on Ross (456 U.S. 798). Maybe if a car is an undriveable motor home, Ross might not apply, but this was just a regular car (with dismembered body parts of the victim inside), so the Ross exception for cars applies.

People v. Hochstraser; 2009 DJ DAR 15299; DJ, 10/28/09; C/A 6th

November 13, 2009

CALIFORNIA CRIMINAL DEFENSE: KNOWLEDGE AND FAILURE TO REGISTER AS SEX OFFENDER

KNOWLEDGE AND FAILURE TO REGISTER

The defendant here was convicted of failing to register as a sex offender for failing to register at a second address where he was also living. The defendant must have knowledge of a duty to register at a second address, but no jury instruction told this to the jury. The Court of Appeal finds error here, but harmless. The dissenting opinion explains why this can't be
harmless.

People v. Cohens; 2009 DJ DAR 15923; DJ, 11/11/09; C/A 4th, Div. 2

November 13, 2009

CALIFORNIA CRIMINAL DEFENSE LAWYER: PROVOCATIVE ACT MURDER AND FIRST DEGREE MURDER

This is a provocative act murder case. A, B, and C try to kill D. In self defense, D kills C. The Cal. Supremes here hold that A and B can be convicted of first degree murder. The defendant must act with malice, must intend to kill, and must act with premeditation. The defendant or accomplice must proximately cause a killing. That killing can then be a first degree murder even in the provocative act situation. The Supremes stress that the jury must be instructed, and must find, that each defendant acted with intent and premeditation.

People v. Concha; 2009 DJ DAR 16039; DJ, 11/13/09; Cal. Supremes

November 11, 2009

CALIFORNIA DUI CONVICTION CAN PREVENT ENTRY INTO CANADA

You have just had a really long year and you are dying to go to Whistler (in Canada) for a long-deserved ski vacation. Think again if you have a DUI conviction, a domestic violence conviction, or any type of conviction (misdemeanor or felony) that is indictable under Canadian law.

You WILL be stopped at the border, and you WILL be humiliated.

Read along to figure out what can be done in your case......

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CANADA

Clients seeking to travel to Canada with criminal convictions from the U.S. (or any other country, for that matter) require unique advice. Living in a state next to Canada means that we must be aware that many of our clients are likely to seek entry into Canada, and be extremely disappointed if they are turned back at the border. Because so many of our clients take entry into Canada for granted, it is important to consider several issues relating to entry to Canada. These include who can enter Canada, who can be excluded from Canada, how to overcome exclusion from Canada, and whether a client who is ineligible for rehabilitation can nonetheless seek entry.

A. Who Can Enter Canada.
Most people assume, without question, that just about anyone can enter Canada. This is not true. The Canadian Customs and Immigration Officers have ultimate authority to permit and deny anyone entry to Canada. No one has an automatic right to enter Canada. However, most people if they have no criminal record are allowed entry. What if you have a criminal conviction?

B. Who Can’t Enter Canada.
To begin, in Canada a DUI is a felony and therefore an excludable offense under the Immigration Act. A DUI is an indictable offense in Canada that may be punished by imprisonment for up to a five year term. Anyone with a conviction in the U.S. that is treated as a felony or indictable offense in Canada is excludable from Canada, but even if the offense is not a felony or indictable offense in Canada, Customs and Immigration Officers have ultimate authority to permit and deny entry to Canada.

Almost all convictions (including DUI, DWI, reckless driving, negligent driving, misdemeanor drug possession, all felonies, domestic violence (assault IV), shoplifting, theft, etc) can make a person inadmissible to Canada, regardless of when they occurred. For this reason, it is not recommended that persons with past convictions attempt to enter Canada without first obtaining necessary documents. It is always the final decision of officers at ports of entry to decide whether a person should be allowed into Canada.

The reason for this exclusion is contained in Canadian law. The Canadian Immigration Act, in § 19; states:

(2) No immigrant and, except as provided in subsection (3), no visitor shall be granted admission if the immigrant or visitor is a member of any of the following classes:
(a) persons who have been convicted in Canada of an indictable offence, or of an offence for which the offender may be prosecuted by indictment or for which the offender is punishable on summary conviction, that may be punishable under any Act of Parliament by a maximum term of imprisonment of less than ten years, other than an offence designated as a contravention under the Contraventions Act;
(a.1) persons who there are reasonable grounds to believe
(i) have been convicted outside Canada of an offence that, if committed in Canada, would constitute an offence that may be punishable by way of indictment under any Act of Parliament by a maximum term of imprisonment of less than ten years, or
(ii) have committed outside Canada an act or omission that constitutes an offence under the laws of the place where the act or omission occurred and that, if committed in Canada, would constitute an offence that may be punishable by way of indictment under any Act of Parliament by a maximum term of imprisonment of less than ten years, except persons who have satisfied the Minister that they have rehabilitated themselves and that at least five years have elapsed since the expiration of any sentence imposed for the offence or since the commission of the act or omission, as the case may be;

Later, in § 3 of the Immigration Act, there is a provision that permits discretionary entry:

A senior immigration officer or an adjudicator, as the case may be, may grant entry to any person who is a member of an inadmissible class described in subsection (2) subject to such terms and conditions as the officer or adjudicator deems appropriate and for a period not exceeding thirty days, where, in the opinion of the officer or adjudicator, the purpose for which entry is sought justifies admission.

Again, the Canadian Consulate emphasizes that this entry is discretionary, and in the post 9/11 aftermath, officers are more typically exercising their discretion to deny entry than to grant entry. Even if a Canadian Minister (I'm not sure which minister) has approved a client's entry, the border person can still reject the person.

Finally, there is a permit process that requires prior application and may permit an otherwise excludable person to enter Canada. Information on the permit is on the consulate general’s web-site, permits a visit of up to 30 days, and as I understand it, once it is approved, may be re-approved when application is made within a 3 year period. Permit information is at: http://www.dfait-maeci.gc.ca/can-am/menu-en.asp?act=v&mid=12&cat=180&did=397. This process is discussed in the next section.

C. Overcoming Exclusion from Canada.

There are several ways individuals can overcome criminal inadmissibility, but the short answer you must give your client is that there is no short and easy way to do it. These include:

1 Deemed rehabilitation at a Canadian port of entry;
2 Streamlined rehabilitation at a Canadian port of entry;
3 Approval of rehabilitation through a Canadian Consulate in the United States; and
4 A Temporary Resident Permit through a Canadian Consulate in the United States

1. Deemed Rehabilitation.

Persons are eligible to apply for deemed rehabilitation at a port of entry if the following are true:
1 There was only one conviction in total;
2 At least ten years have elapsed since all of the sentences for the conviction were completed (payment of all fees, jail time completed, restitution paid, etc);
3 The conviction would not be considered serious criminality in Canada (most felony convictions in the United States are equivalent to serious criminality in Canada); and
4 The conviction did not involve any serious property damage, physical harm to any person, or any type of weapon.

2. Streamlined Rehabilitation.

Persons are eligible to apply for streamlined rehabilitation at a port of entry if the following are true:
1 There were two or less convictions in total;
2 At least five years have elapsed since all of the sentences for the conviction(s) were completed (payment of all fees, jail time completed, restitution paid, etc);
3 The convictions would not be considered serious criminality in Canada (most felony convictions in the United States are equivalent to serious criminality in Canada); and
4 The convictions did not involve any serious property damage, physical harm to any person, or any type of weapon.

3. Deemed & Streamlined Rehabilitation Applications.

Deemed rehabilitation and streamlined rehabilitation applications are processed at Canadian ports of entry. Submitting an application for rehabilitation does not guarantee that the request will be approved. Should your client wish to apply for either, the client must bring the following documents to a port of entry during regular business hours (Monday - Friday between 8am and 5pm):
1 A United States passport or birth certificate (with photo identification);
2 A copy of court documents for each conviction, and proof that all sentences were completed;
3 A recent FBI identification record;
4 Recent police certificates from the state where the conviction(s) occurred, and from any state where a person has lived for six (6) months or longer in the last 10 years; and
5 A fee is involved for the streamlined rehabilitation process, equivalent to $200 Canadian. There is no fee for deemed rehabilitation.

4. Approval of Rehabilitation.

If more than 5 years have elapsed since all sentences related to the conviction(s) were completed, but a person is not eligible for rehabilitation at a port of entry (because of the nature or number of convictions), a person may apply for approval of rehabilitation through a Canadian Consulate in the United States. The same documents required for port of entry rehabilitation identified above are also required for rehabilitation through a Canadian Consulate, plus a completed Application for Criminal Rehabilitation (Citizenship & Immigration Canada Form IMM 1444. Five Canadian Consulates in the U.S. process criminal applications - Buffalo, NW, New York, NY, Detroit, MI, Los Angeles, CA, and Seattle, WA. Again, the decision to approve rehabilitation is discretionary, so there is no certainty in obtaining admission to Canada. In the situation where a person is ineligible for rehabilitation because of the nature or number of convictions, employment of competent Canadian immigration counsel may facilitate approval of the application.

5. Temporary Resident Permit.

If a person is not eligible for deemed, streamlined, or approved rehabilitation, the only option remaining (short of a pardon or executive action) is to apply for a temporary resident permit. This is a process where a person requests special permission to enter or remain in Canada.

A person seeking a temporary resident permit submits the documents required for deemed or streamlined rehabilitation as well as a completed Application for Criminal Rehabilitation, except that the applicant does not check the box in § A(1) indicating Application for Approval of Rehabilitation, but instead checks the box in § A (2) indicating For Information Only.

As poignantly noted on the Citizenship & Immigration Canada website, the Customs and Immigration officer will review the Application form, look at the nature of the offenses, the number of offenses, when the offences happened, and the applicants current situation, and then the officer will:

At Canadian visa offices outside of Canada:
• advise that they do not recommend that you travel to Canada; or,
• advise that you could apply for special permission (temporary resident’s permit) to enter Canada*.
At Ports of Entry (airport, marine or land)
(Contact your nearest Canadian visa office before traveling into Canada.)
• advise that you will not be allowed to enter Canada and ask you to return immediately to your country of departure;
• take enforcement action (arrest, detention and/or removal); or,
• advise that you could apply for special permission (temporary resident’s permit) to enter Canada.
In Canada
• ask that you leave Canada voluntarily;
• take enforcement action (arrest, detention, and/or removal from Canada); or
• advise that you could apply for special permission (temporary resident’s permit) to remain in Canada.
The safest course of conduct is to make application for, and obtain approval of, a Temporary Resident Permit at a Canadian consulate in the U.S. prior to attempting entry to Canada. The website indicates that Approval of Rehabilitation and Temporary Resident Permits take a minimum of six (6) months to process in the Seattle office; information indicated the time in Seattle is much closer to one year. Clients seeking quicker decisions should direct their applications to the Canadian Consulates in Detroit and Buffalo.

Failure to timely seek a Temporary Resident Permit can result in disastrous consequences. A client who failed to seek a Temporary Resident Permit was stopped at Customs and Immigrations in Toronto, detained, and returned to Denver the next morning on the next flight home. He was also unable to close a multi-million dollar sale, and lost his job as a vice-president in the cellular phone industry. Another client who failed to seek a Temporary Resident Permit was stopped, questioned, and permitted to enter Canada for business, but was counseled she would not always be so lucky.

Once a Temporary Resident Permit is granted, it must be updated every 6 months to 1 year. It is not permanent. There are significant non-refundable processing fees associated with Temporary Resident Permits, and not surprisingly, higher fees correspond to cases involving more serious criminality.

6. Processing Problems.
The most frequent problem is inadequate or incomplete documentation. Although court documents may be difficult to obtain, Canada typically requires them for review. Proof of sentences being completed is critical, which could be anything from a letter received stating that a person’s civil rights have been restored or a letter from a probation officer stating that all sentences were completed successfully, to proof of the final payment of a fine showing a zero balance. If court documents and/or proof of completed sentences have been destroyed by the court, Canada requires a letter from the court which clearly indicates that files are no longer available. Canada also needs to see original FBI certificates and state police certificates issued within the year, and requests all required materials be submitted in one package. While the minimum processing time for these applications is six (6) months, many cases take longer to process.

D. Resources.

The web link http://www.cic.gc.ca/english/applications/rehabil.html has information about the rehabilitation process.

Temporary residence permit information is contained in the consulate general’s web-site: http://www.dfait-maeci.gc.ca/can-am/menu-en.asp?act=v&mid=12&cat=180&did=397.

The consolidated statutes and regulations page for Canada is: http://laws.justice.gc.ca/.

A more specific link to the immigration statutes is at: http://laws.justice.gc.ca/en/I-2/index.html.

The specific portion of the Immigration Act that bars entry is at: http://laws.justice.gc.ca/en/I-2/60195.html.

The web link http://www.canadianembassy.org/immigration/inadmissible-en.asp explains generally inadmissibility.

The web address for Nexus, which facilitates and speeds multiple border crossings, is: http://www.cbsa-asfc.gc.ca/travel/nexus/menu-e.html.

E. Deported from Canada?A visitor to Canada faces possible deportation upon conviction for impaired driving (DUI), violating Canada’s .08 per se limit, or refusing a breath sample. A person in Canada as a visitor who is convicted of a drinking and driving offence may not be able to renew his or her visitor status, and upon conviction, such a person becomes inadmissible to Canada and can be deported. To overcome this inadmissibility, a pardon is required.

F. General Summary and Practice Tip.
Basically, if convictions are over 10 years old, entry is permitted after a criminal background check. If convictions are between 5 and 10 years old, entry is permitted on payment of a $200 fine/fee and a criminal background check. If conviction is less than 5 years old, you are going to have to jump through a bunch of hoops, and even then, probably won’t get in unless there are exceptional cricumstances.

If there is any possibility a client will one day have to enter Canada, the client would be prudent to secure certified true copies of all court records relating to the conviction and sentence, including proof of fine payment, and a transcript of the evidence underlying the conviction.

Continue reading "CALIFORNIA DUI CONVICTION CAN PREVENT ENTRY INTO CANADA" »

November 10, 2009

BANNING COUNSEL FROM DISCUSSING A WITNESS STATEMENT WITH THE DEFENDANT

The DA was concerned about the safety of a key witness. So the DA handed over the statement of the witness, but got the judge to order defense counsel NOT to discuss the statement with the defendant.

See any problem with that? I mean, what judge would do that? Fortunately, the Court of APpeal saw a BIG problem with that. I think it's called Due Process.

The California Court of Appeal starts with Geders (425 U.S. 80), where the US Supremes held that a court order barring defense counsel from talking to the defendant during an overnight break in the defendant's testimony violated the defendant's right to counsel. The AG argues that this case didn't involve a total ban on communication, just a ban on a specific topic.

The Court of Appeal recognizes the need of counsel to consult with his client on the
statement at issue. Hey, the witness TESTIFIED, for goodness' sake. The scope of the order here was ambiguous, but apparently the ban barred counsel from discussing that testimony with the defendant! Anyway, the Court of Appeal notes that the DA couldn't show good cause for the order, even assuming such an order could ever be made.

People v. Hernandez; 2009 DJ DAR 15880; DJ, 11/10/09; C/A 6th

November 6, 2009

CALIFORNIA CRIMINAL LAW: PLACING A SHERIFF'S DEPUTY IN A CHAIR NEXT TO A TESTIFYING DEFENDANT (OUTRAGEOUS!)


PLACING A SHERIFF'S DEPUTY IN A CHAIR NEXT TO A TESTIFYING DEFENDANT

This was an outrage of the week in 2007, and it's an outrage of this week as well. There was no claim that the defefendant had been disruptive or presented any sort of danger.

Nevertheless, the Alameda County Sheriff had a policy that when in-custody defendants testify, a sheriff's deputy pulls up a chair next to the defendant in the witness box, and sits there throughout the defendant's testimony.

Incredibly, the California Supreme Court hold that this wasn't shackling and was just fine, because, get this, it's not inherently prejudicial. And maybe the jurors thought
that the bailiff was there to protect the defendant. From the jurors?


What?

People v. Stevens; 2009 DJ DAR 15705; DJ, 11/6/09; Cal. Supremes

November 5, 2009

ONE INFLICTION OF GREAT BODILY INJURY, TWO ENHANCEMENTS

The defendant inflicted great bodily injury. He got a 3-year enhancement for GBI under California Penal Code sec. 12022.7, and it was done for the gang, which made the underlying crime a violent felony under California Penal Code sec. 667.5, so he also got the Penal Code sec. 186.22(b)(1)(C) 10-year enhancement. The California Court of Appeal concludes that this is an improper dual use of the same fact, striking the 3-year enhancement.

People v. Gonzalez; 2009 DJ DAR 15675; DJ, 11/5/09; C/A 2nd, Div. 2

November 4, 2009

PROSECUTORIAL MISCONDUCT QUANTIFYING PROOF BEYOND A REASONABLE DOUBT


PROSECUTORIAL MISCONDUCT QUANTIFYING PROOF BEYOND A REASONABLE DOUBT

The Deputy District Attornrey in this case illustrated proof beyond a reasonable doubt by
using a PowerPoint slide show, showing a jigsaw puzzle picture of the Statute of Liberty, which comes together with two pieces missing. The DA used this to argue that proof beyond a reasonable doubt can be found even with missing information.

The Court of Appeal finds that this is error. The DA was essentially arguing that proof beyond a reasonable doubt may be found by just a few pieces of evidence, and was encouraging the jurors to jump to a conclusion.

In addition, the DA was quantifying proof beyond a reasonable doubt, suggesting that having 6 of the 8 pieces was enough, meaning that 75% would suffice. Wrong.

Incredibly, the Court of Appeal finds this prosecutorial misconduct harmless.

People v. Katzenberger; 2009 DJ DAR 15632; DJ, 11/4/09; C/A 3rd

November 3, 2009

CALIFORNIA SEARCH & SEIZURE LAW: THE FOURTH AMENDMENT AND PRIVATE POSTAL BOXES

The defendant rented a private postal box. The police went to it and asked an employee if the defendant received mail at that facility. The clerk responded by reaching into the defendant's postal box, retrieving three letters, and displaying them without opening them to the police. One showed a bill from AT&T. The police then directed a warrant for cell phones records to AT&T and got evidence of defendant's involvement in a kidnapping.

The Court of Appeal says that the 4th Amendment doesn't apply to an employee's removal of mail from a postal box at a private mail facililty because the back of the box was open and the staff had complete and unfettered access to its contents, and the police didn't search the
postal box or direct the clerk to reveal its contents. The staff has already seen and handled the mail, so there's no limitation on the staff.

People v. Reyes; 2009 DJ DAR 15589; DJ, 11/3/09; C/A 4th, Div. 3

November 2, 2009

CALIFORNIA CRIMINAL SEARCH & SEIZURE: POLICE SEARCH INCIDENT TO ARREST IS LIMITED

GOOD GANT CASE; THE SCOPE OF A POLICE SEARCH INCIDENT TO ARREST IS LIMITED

The police arrested the defendant inside his house on warrants. They cuffed him and put him in a police car 30 feet away. They then entered the house to make sure no one else was inside. They went to the area where the defendant had been arrested and searched the area. They saw a sweatshirt on a recliner a foot from where the defendant had been standing, picked up the sweatshirt, and saw a pistol. The defendant was charged and convicted of obliterating the identification number on that firearm.

Essentially, the AG argues that the law before Arizona v. Gant (129 S.Ct. 1710) was unclear, so suppression shouldn't be required. The California Court of Appeal says that the law was clear, and Gant just reinforced it. The police can't do a search incident to arrest of the area within the immediate control of the def. when they remove the defendant from that very area.

People v. Leal; 2009 DJ DAR 15507; DJ, 11/2/09; C/A 6th