January 28, 2010

CALIFORNIA CRIMINAL LAW: USING A NICKNAME FROM A HORROR MOVIE CAN GET YOU IN TROUBLE

In this recent case, the deputy district attorney was permitted to elicit the defendant's nickname, "Chucky," - the doll from the horror movie who comes to life and slashes people - and then to argue all about the horror movie.

chucky1.jpg

No problem, says this California Court of Appeal. The defendant intended the nickname to be used to scare people.

But they do reject a kill zone argument. The single shot here could have hit either of two people, but the third person couldn't have been shot given the angles. The DA gets two counts of attempted murder, not three.

People v. Geovanny Leon, aka Chucky; 2010 DJ DAR 1415; DJ, 1/28/10;
C/A 2nd, Div. 6

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January 27, 2010

MURDER DEFENSE - IMPERFECT SELF DEFENSE

Imperfect self defense (which only applies if there is actual but unreasonable belief in the need for self defense) reduces a murder to a manslaughter. (Flannel, 25 C3d 668.) But what, exactly has to be unreasonable? The CALCRIM on imperfect self defense for an actual
killing (571) says that imperfect self defense applies if EITHER the defendant unreasonably believed that he was in imminent danger of death or great bodily injury, OR the defendant unreasonably believed that the immediate use of deadly force was necessary. The CALCRIM on imperfect self defense for an attempted killing (604) says that imperfect self defense applies only if BOTH beliefs are unreasonable. The California Court of Appeal rules that if EITHER belief is unreasonable, imperfect self defense applies, to killing or attempted killing.

People v. Her; 2010 DJ DAR 1291; DJ, 1/27/10; C/A 3rd

January 26, 2010

CALIFORNIA CRIMINAL DEFENSE: U.S. SUPREME COURT REVERSES VIRGINIA SUPREME COURT ON MELENDEZ-TYPE CONFRONTATION CASE

BRISCOE V. VIRGINIA
Decided: 1/25/10
No. 07-11191
Full Text: http://www.supremecourtus.gov/opinions/09pdf/07-11191.pdf

CONFRONTATION CLAUSE
(Signed certificates prepared by forensic analysts
are testimonial for purposes of the Confrontation Clause)

The United States Supreme Court issued a per curiam decision vacating the
judgment of the Supreme Court of Virginia and remanding the case for
further proceedings consistent with its recent opinion in Melendez-Diaz v.
Massachusetts.

Briscoe was arrested for possession of cocaine. At trial, he objected to the admission of analysis certificates used to prove that the substance he possessed was cocaine. Briscoe claimed the right to confront the forensic analysts that produced the certificates. Procedural safeguards in Virginia allow defendants to call forensic analysts as witnesses. Briscoe argued
that the safeguard did not adequately satisfy his right to confront the witnesses against him as guaranteed in the Confrontation Clause. The Supreme Court of Virginia held that it did not need to determine whether the certificates were testimonial under Crawford. Testimonial statements
subject to the Confrontation Clause will not be admissible in court unless the person who made the statement testifies in court and is subject to cross examination, or if the defense had a prior opportunity to cross examine the witness.

The Court vacated the Virginia Supreme Court decision and remanded the case for proceedings consistent with Melendez-Diaz, in which the Court held that affidavits such as forensic analysis certificates are testimonial statements under Crawford. The Confrontation Clause requires the opportunity for cross examination regarding these statements.

January 22, 2010

TEXAS JUDGES CLOSES COURTROOM EARLY TO AVOID FILING BY DEATH ROW INMATE: OFF WITH HER HEAD!

A Texas judge who closed her courtroom early to avoid a last minute appeal by a death row inmate faces five counts of judicial misconduct. Click HERE for the full story.

January 18, 2010

NEW YORK JETS FAN ARRESTED AT JETS/CHARGERS PLAYOFF GAME

A New York Jets fan was arrested by four San Diego Police Officers Sunday in what appeared to be an unprovoked attack by the cops. The Jets fan was arrested, handcuffed and escorted out of Qualcomm stadium amidst cries from Chargers fan, "He didn't do anything."

Chargers fans - losing - coming to the aid of a loud, gloating Jets fan? Yep. This appears to be another instance of police abuse in San Diego.

Check out the tape.:
http://www.youtube.com/watch?v=wJqd_5fC7ZI&feature=player_embedded

January 18, 2010

CALIFORNIA CRIMINAL DEFENSE: IS A SCHOOL A PUBLIC PLACE?

IS SCHOOL A PUBLIC PLACE?

California Penal Code sec. 594.1(e)(1) makes it a crime for anyone under 18 to possess an
aerosol paint container for the purpose of defacing property while in any public place. The minor here was at school. Is this a public place?

Of course not, try walking into any public school these days, you'd be stopped instantly and barred from admission. To make this defendant lose, this California Court of Appeal launches into a wacko discussion of what "public place" means, defining it, I kid you not, as "a place in which the public has an interest," and says that keeping schools free of graffiti is a matter of
public interest. Give me a break.

In re Miguel H.; 2010 DJ DAR 611; DJ, 1/14/10; C/A 2nd, Div. 7

January 18, 2010

CALIFORNIA SENTENCING LAW: ENHANCEMENTS AND MINIMUM PAROLE ELIGIBILITY

The defendant here was convicted of attempted premeditated murder. He got a 25 years-to-life enhancement under California Penal Code sec. 12022.53 for firing a gun causing great bodily injury. He also got a minimum parole eligibility of 15 years, under PC 186.22(b)(5). Relying on Brookfield (47 Cal.4th 583), the California Court of Appeal holds that the defendant can't get BOTH the GBI enhancement and the minimum parole eligibility term; he gets the former, not the latter. Oh well. C'est la Gare.

People v. Gonzalez; 2010 DJ DAR 551; DJ, 1/13/10; C/A 2nd, Div. 8

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January 18, 2010

SAN DIEGO CRIMINAL DEFENSE LAWYER: RESTITUTION FOR COSTS AT KAISER

At Kaiser Permanente, you pay a membership fee, then you pay only a token amount for medical services, less than the actual costs of those services. The defendant here injured the victim, who got treatment at Kaiser. The trial court rdered no restitution. The DA wants restitution for the full amount Kaiser claimed. The California Court of Appeal must order payment for the actual services provided, even though the victim didn' actually pay
for them. But it s not the full amount claimed. Kaiser had agreed to accept a lesser amount as payment in full; that's the amount to be ordered.

People v. Duong; 2010 DJ DAR 673; DJ, 1/15/10; C/A 1st, Div. 3

January 16, 2010

CALIFORNIA C RIMINAL LAW: PROVING OUT-OF-STATE PRIORS

PROVING OUT-OF-STATE PRIORS
The def.is sentence here was doubled because of an Alabama prior. For
that prior to qualify as a strike, the "face of the record" had to show
infliction of great bodily injury by the def. on someone other than an
accomplice. The C/A assures us that the document at issue here, a copy
of an original certified copy of the indictment, qualifies as face of
the record. Remember, even if a crime isnit on the PC 1192.7(c) serious
felony list, it can still be a strike prior if the "face of the record"
shows conduct thatis on the list.

People v. Skiles; 2010 DJ DAR 541; DJ, 1/13/10; C/A 4th, Div. 3

January 14, 2010

CALIFORNIA CRIMINAL LAW: WHAT CONSTITUTES A CRIMINAL OR "TERRORIST" THREAT?

CRIMINAL THREATS

This California Court of Appeal examines a California Penal Code sec. 422 (criminal threats) case. I don't know why they expended the energy. It seems clear to me there was a criminal or terrorist threat here. But anyway, here goes:

The defendant said, "I will kill you right now," and displayed a weapon. The California Court of Appeal thinks this is enough. This is a willful threat to commit a crime that will result in
death or great bodily injury; these facts show specific intent; the threat was unequivocal, unconditional, and immediate; and the threat caused sustained, reasonable fear. Yep, I agree.

People v. Fierro; 2010 DJ DAR 525; DJ, 1/13/10; C/A 2nd, Div. 8

January 14, 2010

SAN DIEGO CRIMINAL DEFENSE: MULTIPLE SENTENCES FROM A SINGLE ACT

Penal Code section 654 bars multiple sentences from a single act. Here, the defendant was convicted of theft and burglary, the target of the burglary being the theft. Obviously, California Penal Code 654 applies, so the trial court sentenced the defendant on the burglary and deferred sentencing on the theft.

This California Court of Appeal struggles over precisely how 654 is to be implemented, and concludes that the trial court is to impose sentence on the burglary, and then impose and stay execution of the sentence on the theft.

People v. Alford; 2010 DJ DAR 627; DJ, 1/14/10; C/A 3rd

January 13, 2010

FEDERAL CRIMINAL DEFENSE: U.S. DEPARTMENT OF JUSTICE ISSUES NEW MEMORANDUM ON PROSECUTORIAL DISCOVERY

Well, it's about time the United States Department of Justice stepped and authored a new memorandum for federal prosecutors to follow regarding discovery issues. But this begs the question: Why haven't prosecutors followed been following the law (and their oaths of office to uphold the Constitution), automatically?

Deputy Attorney General David W. Ogden issued three Memorandum to DOJ prosecutors presumably intended to remedy some of the setbacks and debacles the Department suffered last year as a result of serious discovery violations in federal felony prosecutions.

The subject of one of the Memos is “Guidance for Prosecutors Regarding Criminal Discovery.” The second Memo reference is “Issuance of Guidance and Summary of Actions Taken in Response to the Report of the Department of Justice Criminal Discovery and Case Management Working Group.” Finally, a separate Memo is address to all DOJ litigating components and all U.S. Attorneys.

Taking the "Memo to the U.S. Attorneys and DOJ Components" first, Odgen summarizes that he had convened a working group to address DOJ policies and practices regarding criminal discovery issues. Odgen references that he is sending to all DOJ trial attorneys and AUSAs a memo containing Guidance For Prosecutors Regarding Criminal Discovery that prosecutors should follow to ensure that discovery obligations are met in all future cases. Interestingly, Odgen directs that each U.S. Attorney’s Office develop a discovery policy consistent with the law and local rules and practices. That policy must be in place by March 31, 2010.

Again, again again, why must Ogden issue a memorandum containing guidance for federal prosecutors regarding criminal discovery? I mean, it's the law. FOLLOW IT. Clearly this is an issue of prosoecutors not following the rules of ethics. They know the law. I mean, really....

The “Guidance For Prosecutors Regarding Criminal Discovery” Memo sets out detailed steps prosecutors are to follow regarding discovery. The six page Memo first advises that the prosecutors must determine who is a member of the “Prosecution Team” for the purpose of determining what documents must be reviewed for disclosure.

The Guidance Memo then directs that the discovery review should cover the following: 1) the investigative agency’s files, 2) Confidential Informant/Witness/Source files, 3) Evidence and Information Gathered During the Investigation, 4) Documents or Evidence Gathered by Civil Attorneys and/or Regulatory Agencies in Parallel Civil Investigations, 5) Substantive Case Related Communications, 6) Potential Giglio Information Relating to Law Enforcement Witnesses, 7) Potential Giglio Information Relating to Non-Law Enforcement Witnesses and Fed.R.Evid. 806 Declarants, 8) Information Obtained in Witness Interviews, a) Witness Statement Variations and the Duty to Disclose, b) Trial Preparation Meetings With Witnesses and c) Agent Notes.

The Guidance Memo then directs that although prosecutors may delegate the process of review to others, they “should not delegate the disclosure determination itself.”

The Guidance Memo reminds prosecutors that discovery within DOJ is covered by the U.S. Attorney’s Manual Section 9-5.001, which is broader than what the law requires and that if a prosecutor chooses to follow that broader course, “defense counsel should be reminded that the prosecutor is electing to produce discovery beyond what is required . . .” The Memo then addresses the scope, timing and form of discovery disclosures, but cautions that, “[p]rosecutors should never describe the discovery being provided as ‘open file.’”

Finally, the Guidance Memo counsels that the prosecutor should make a good record regarding the disclosures.

The “Issuance of Guidance and Summary of Actions Taken in Response to the Report of the Department of Justice Criminal Discovery and Case Management Working Group” Memo reminds prosecutors of the words of Justice Sutherland that it is the prosecutor’s duty is “that justice shall be done.” Berger v. United States, 295 U.S. 78, 88 (1935). This Memo informs prosecutors of the establishment of the Guidance Memo set out above and that each U.S. Attorney’s Office shall have a “discovery coordinator.” In addition, DOJ has:

• Created an online directory of resources pertaining to discovery issues that will be available to all prosecutors at their desktop;
• Produced a Handbook on Discovery and Case Management similar to the Grand Jury Manual so that prosecutors will have a one-stop resource that addresses various topics relating to discovery obligations;
• Implemented a training curriculum and a mandatory training program for paralegals and law enforcement agents;
• Revitalized the Computer Forensics Working Group to address the problem of properly cataloguing electronically stored information recovered as part of federal investigations;
• Created a pilot case management project to fully explore the available case management software and possible new practices to better catalogue law enforcement investigative files and to ensure that all the information is transmitted in the most useful way to federal prosecutors.

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January 13, 2010

CALIFORNIA CRIMINAL DEFENSE: FALSE IMPRISONMENT OF A CHILD

In Michele D. (29 C4th 600), the CalIfornia Supreme Court examined the issue of
when a young child, too young to consent, can be kidnapped. The Michele D. rule is that the amount of force required to kidnap a child is the amount of physical force necessary to take and carry the child away for a substantial distance, and for an illegal purpose or with an illegal intent. This California Court of Appeal applies the Michele D. rule to false imprisonment, PC 236.

People v. Dominguez; 2010 DJ DAR 486; DJ, 1/12/10; C/A 2nd, Div. 5

January 11, 2010

CALIFORNIA FEDERAL DEFENSE ATTORNEY: IF YOU SEE, SMELL OR SUSPECT MISCONDUCT, YOU MUST RAISE IT IN A PRE-TRIAL MOTION. USE IT, OR LOSE IT.

If there is a claim of outrageous government misconduct in your federal criminal case, and you are aware of the conduct, you must raise it in a pretrial motion. Essentially, use it, or lose it.

This is already the position of the 2nd, 3rd, and 8th circuits, and it is now the position of the 9th Circuit Court of Appeal.

In this case, an undercover agent of the ATF used a confidential informant to infiltrate a crew doing alleged home invasions. The agent supposedly masterminded the plan for a home invasion that was thwarted on the day of the planned acts. The defendant knew about the agent's involvement, but failed to raise the motion pretrial, at trial, or even after trial.

The 9th Circuit reasoned that such claims go to the tainting of the prosecutorial function, and must be presented in time to fully air out the allegations. This, of course, depends on the defendant's awareness.

If facts come out after trial has begun, or there is some excuse for not raising it pretrial, then the 9th Circuit can consider it. That is not the case here.

The 9th Circuit also finds no error in the actions of the district court in dismissing a juror who said he was to be impartial, and could not decide the facts on the evidence. The defendant was given a chance to possibly ask the juror "why" or delve deeper into the reasons, but he declined. The 9th found the challenge to the mandatory minimum of life to be foreclosed by precedent.

U.S. v. Mausali, No. 08-50062 (1-11-10).

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January 11, 2010

A CURTILAGE JUST ISN'T WHAT IT USED TO BE (SIGH!)

A curtilage just isn't what it used to be. Ah, we long for the good old days. Here, the defendant was being investigated on drug charges. Agents placed a mobile tracking device on his Jeep while in his driveway. The driveway had no special features that raised an expectation of privacy necessary for curtilage protection under the 4th Amendment. There were no barriers or fences, or enclosures, or a lack of visibility. There were no "No Trespassing" signs or warnings. (hint, hint) The driveway was open to the public, and was used to approach the house. The attaching of the device in the early morning -- between 4 and 5 am -- did not raise the expectation of privacy to the driveway's physical nature. The 9th Circuit Court of Appeal followed precedent (McIver) in holding that the undercarriage of the car was the exterior; and that parking the car on the public street was outside the curtilage. Finally, the mobile tracking device is permitted by the Supremes. Bummer.

U.S. v. Pineda-Moreno, No. 08-30385 (1-11-10).