February 16, 2011

SAN DIEGO CRIMINAL DEFENSE: DOWNLOADING CRASH DATA FROM A CAR RECORDER

Pretty much all newer cars have a sensing and diagnostic module (SDM), or crash data recorder, a kind of black box that records data relating to a collision. There was a felony hit and run and manslaughter. The defendant's car was seized. A year later, the police
(on advice of a DA!) downloaded the SDM data without a warrant.

In a case of first impression, this California Court of Appeal holds that a driver DOES have a
subjective and reasonable expectation of privacy in the SDM data. The California Court of Appeal says that the police could have probable cause to get the data, but they didn't have PC here. The valid seizure of the car didn't justify an intrusion in an internal part or component of the car.

People v. Xinos; 2011 DJ DAR 2164; DJ, 2/9/11; C/A 6th

February 16, 2011

THE CALIFORNIA SUPREME COUERT LETS PROSECUTOR GET AWAY WITH MISCONDUCT

BRIBING JURORS TO IMPOSE DEATH JUST FINE; JUST CLAIM IT'S A JOKE

The California Supremes tell us the issue in this sickening case is whether "the prosecutor in this case improperly tampered with a sitting juror by sending her alcoholic drinks and money, and telling her to return a guilty verdict." Yes, sports fans, we lose! How, you ask?

The prosecutor (an AG) went to a cafe where, it turned out, the juror was a cook. The two met; the AG said he couldn't have any contact with the juror. After having drinks and appetizers, the AG paid and left a (normal) tip, which he told the bartender he should share with the juror, and that the bartender should tell the juror to vote guilty.

Hey, it was all a joke! Can't you tell? Did I mention that this is a death case? Hey, no problem killing this guy after a juror was bribed. It was just a joke, right? This is easily the outrage of the week, and prosecutorial miscondcut at its worst.

But even more, it set s tone and send s a message to prosecutors that the law and rules of ethics just don't apply to them.

Can you image what would happen if a public defender did this?

People v. Price; 2011 DJ DAR 2409; DJ, 2/15/11; Cal. Supremes

February 15, 2011

SAN DIEGO'S STREET CZAR, MARIO SERRA, ARRESTED FOR LEWD ACTS

http://www.signonsandiego.com/news/2011/feb/14/sd-city-official-arrested-lewd-act-charge/

February 15, 2011

CALIFORNIA CRIMINAL DEFENSE: SEVERE LIMITATIONS ON ISSUING PROTECTIVE ORDERS

Judges hand out protective orders and stay-away orders like candy, with no notice of evidence, based on the police report alone. Heck, just last week an El Cajon judge was yelling at my client's wife, suggesting that she was making up a story to get out from under a protective order. When it came down to it, he put it out there why he was being so harsh. He said, loud and clear, that he didn't want his name all over the paper if he was wrong.

Well, excuse me. But that is NOT a reason to issue a protective order. And it is certainly not a reason to abuse a poor woman in court who is asking for one to be removed so she can live with her husband and three babies.

No more. This California court of appeal says that a judge CAN issue a protective order in a domestic violence case or any case where the underlying facts show intimidation or dissuading a witness occurred. Apart from that, in order to issue a protective order there has to be evidence that the case is a domestic violence case or that a witness has been intimidated. Absent that, the court CAN'T issue a protective order. Period.

The California court of appeal doesn't answer all of our questions about notice, but it's clear that we're entitled to an actual contested hearing with notice and some kind of evidence other than what the DA says. And they say that what happened here wasn't sufficient notice, where, as usual, the DA sauntered in and demanded a protective order without any notice or any evidence.

Babalola v. Superior Court; 2011 DJ DAR 2426; DJ, 2/15 /11; C/A 2nd, Div. 7

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February 12, 2011

CALIFORNIA CRIMINAL EVIDENCE: DIMINISHED CAPACITY, DIMINISHED ACTUALITY, AND WHAT CRIMINAL DEFENSE EXPERTS CAN TESTIFY TO

As this California Court of Appeal clearly explains, the "repeal" of diminished capacity, found in California Penal Code sec. 28 and 29, only bars expert testimony that the impairment of the defendant precluded him from having the CAPACITY to have the mental state at issue.

We retain the right to have the expert testify that the defendant had a mental condition, and that mental condition typically precludes a person from forming the required mental state. But the expert can't give an ultimate opinion about whether the defendant actually had that mental state.

Here's the Court of Appeal's statement of the rule: "sections 28 and 29 do not prevent the defendant from presenting expert testimony about any psychiatric or psychological diagnosis or mental condition he may have, or how that diagnosis or condition affected him at the time of the offense, as long as the expert does not cross the line and state an opinion that the defendant did or did not have the intent" at issue.

The Court of Appeal is eplicit in what defense expertsare entitled to testify to, and their position is quite helpful. This is a must-read case, with essentially a script on what the expert can testify to.

People v. Cortes; 2011 DJ DAR 2349; DJ, 2/11/11; C/A 6th

February 10, 2011

BOOKING QUESTIONS ABOUT GANG AFFILIATION, IN THE ABSENCE OF MIRANDA

So when do questions asked during a booking search trigger Miranda? Back in 1990, the U.S. Supremes in Muniz (496 U.S. 582) ruled that routine booking questions may be asked without Miranda, and any resulting answers used, so long as the questions were not "designed to elicit incriminating admissions." This is an area where a showing that the police asked the questions as a pretext to elicit incriminating information will cause you to prevail.

Here, the booking officer asked about the defendant's gang affiliation; the answer was used against the defendant, even though Miranda was never given. The California Court of Appeal upholds this, claiming that it was just for administrative purposes. The California Court of Appeal says that it is NOT holding that booking questions about gang affiliations are always OK. Had the booking officer known about the crime, for example, that might have led to a different result.

People v. Gomez; 2011 DJ DAR 2149; DJ, 2/9/11; C/A 4th, Div. 2

February 8, 2011

CALIFORNIA CRIMINAL DEFENSE: MANDATORY NO-CONTACT ORDERS WITH UNDERAGE SEX VICTIMS

California Penal Code section 1202.05(a) says that the sentencing court must impose a no-contact order barring contact between the defendant and any victim of a sex count under the age of 18. The defendant here was convicted of various counts, but the sex counts where the victims were under 18 were dismissed.

But the court imposed the no-contact order. The California Court of Appeal reverses. To trigger the mandatory no-contact order, the defendant has to actually be convicted of a sex count with an under 18 minor.

People v. Ochoa; 2011 DJ DAR 2105; DJ, 2/8/11; C/A 3rd