August 28, 2011

IMPROPER USE OF PRIOR CRIMES EVIDENCE

The defendant was charged with residential burglary based upon entering a house and taking two purses. The DA was able to persuade the judge to allow in evidence of prior thefts by the defendant. The California Court of Appeal holds that admission of these prior acts was error under EC 1101.

The prior conduct was admitted to prove intent. But the intent of the thief in taking the purses was evident. That point wasn't at issue. What was at issue was who did it. The C/A further finds that admission of the prior thefts was prejudicial, given that the evidence that the defendant was the purse thief was weak.

People v. Lopez; 2011 DJ DAR 12587; DJ, 8/22/11; C/A 6th

August 18, 2011

CALIFORNIA POLICE MISCONDUCT: RIGHT TO PITCHESS DISCOVERY OF COMPLAINTS MADE AFTER THE ARREST

YES, WE DO HAVE THE RIGHT TO POLICE MISCONDUCT DISCOVERY OF COMPLAINTS MADE AFTER THE ARREST

The defendant was convicted. He appealed and eventually got federal habeas relief. Back in the trial court, the defendant moved for Pitchess (11 Cal.3d 531) discovery against the officers.

The trial court granted the motion, but denied any discovery of complaints made against the officers after the date of the defendant's arrest. Why on this earth judges consistently make up rules to protect the police is beyond me. Yes, I know they all run on "Law Enforcement's Choice" tickets for re-election. But a fourth grader would have enough sense to have granted this public defender's request. I mean, C'mon.

The California Court of Appeal says this is wrong. The defense is entitled to discovery of such complaints, on a showing of good cause.

Blumberg v. Superior Court
; 2011 DJ DAR 11477; DJ, 8/1/11; C/A 2nd,
Div. 5

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August 18, 2011

LAW OFFICE OF MARY FRANCES PREVOST- FACEBOOK UPDATE PAGE

Please log go to http://www.facebook.com/pages/Law-Offices-of-Mary-Frances-Prevost/26825436846 and "Like" the Law Office of Mary Frances Prevost, and follow my by logging onto my RSS feed for daily updates on breaking cases in news and politics.

The Law offices of Mary Frances Prevost is dedicated to the zealous defense of the criminally accused, and prosecution of law enforcement agents who violate civil rights, commit police brutality and fabricate evidence.

The Law offices of Mary Frances Prevost seeks to stem the rising tide of police brutality throughout the State of California.

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August 10, 2011

CALIFORNIA CRIMINAL LAWYER: THIRD CATEGORY OF VOLUNTARY MANSLAUGHTER-UNINTENTIONAL KILLING DURING A FELONY

The victim and the defendant were fighting. The defendant grabbed a knife. The victim lunged at the defendant, at the same time that the defendant thrust the knife forward. The defendant stabbed the victim, killing him. The California Court of Appeal concludes that the evidence demonstrated that the defendant committed an assault with a deadly weapon on the victim, an inherently dangerous felony, causing the victim's death. The California Court of Appeal also says that it was reversible error to fail to give the jury a voluntary manslaughter instruction, in addition to heat of passion and unreasonable self defense. The California Court of Appeal says that there is a third category of voluntary manslaughter. That category, applicable here, is "an
unintentional killing without malice committed during the course of an
inherently dangerous assaultive felony."

People v. Bryant; 2011 DJ DAR 12011; DJ, 8/10/11; C/A 4th, Div. 1

August 8, 2011

LAW OFFICES OF MARY PREVOST: GREAT TAKING ENHANCEMENT AND COMMON SCHEME OR PLAN

California Penal Code sec.12022.6 adds a year in prison if the amount stolen exceeded
$50,000; this is often called the "great taking" enhancement. The defendant here was convicted of two embezzlement charges. Can the DA add up the losses to get the enhancement?

Yes, but only if the losses to be aggregated were pursuant to a "common scheme or plan." It turns out that there's no definition of "common scheme or plan."

This Court of Appeal engrafts (their term) the definition from Ewoldt (7 Cal.4th 380), the case on California Evidence Code sec. 1101. A common scheme or plan is established where there is a "concurrence of common features that the various losses are naturally to
be explained as caused by a general plan of which they are the individual manifestations.

Further, the common features must indicate the existence of a plan rather than a series of similar spontaneous acts, but the plan thus revealed need not be distinctive or unusual."

Got that? Anyway, the Court of Appeal finds that the two embezzlements here were NOT pursuant to a common scheme or plan.

People v. Green; 2011 DJ DAR 11817; DJ, 8/8/11; C/A 4th, Div. 1

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August 5, 2011

CALIFORNIA CRIMINAL LAWYER: MANDATORY DNA COLLECTION FOR FELONY ARRESTEES IS UNCONSTITUTIONAL

In 2004, California proposition 69 was enacted, greatly expanding collection of DNA. One of the provisions of Prop. 69 required collection of DNA from anyone arrested or charged with a felony. This Court of Appeal strikes down the provision requiring collection of DNA from anyone merely arrested for a felony. This is a lengthy opinion, well worth reading, for its discussion of DNA as well as the rules governing the constitutionality of statutes infringing on the right to privacy. The California Attorney general argues that DNA collection is a really good way to fight crime. The Court of Appeal says that even if DNA testing of arrestees is demonstrably valuable, that doesn't make it constitutional.

The California Court of Appeal says, "We conclude that the DNA Act, to the extent it requires felony arrestees to submit a DNA sample for law enforcement analysis and inclusion in the state and federal DNA databases, without independent suspicion, a warrant or even a judicial
or grand jury determination of probable cause, unreasonably intrudes on such arrestees' expectation of privacy and is invalid under the Fourth Amendment."

People v. Buza; 2011 DJ DAR 11714; DJ, 8/5/11; C/A 1st, Div. 2

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August 2, 2011

PROSECUTION HAS THE RIGHT TO DISCOVERY OF NONTESTIMONIAL INFORMATION

The prosecution discovery statutes enacted by Prop. 115, Penal Code sec. 1054 et seq., limit discovery to the items listed. But Penal Code sec. 1054.4 provides that nothing in these provisions is to be construed to limit the prosecution from getting nontestimonial evidence. The criminal defendant here is a corporation. The DA issued a subpoena for internal corporate records about the structure of the corporation. The California Court of Appeal rules that this
information is nontestimonial, since it was voluntarily created by the corporation as part of its business. Since it is nontestimonial and since corporations have no 5th Amendment rights, there's no ban against the DA getting it.

Of course, we always thought that nontestimonial information was stuff like being required to stand in a lineup or display tattoos. If this gets thrown in your face, focus on your client
HAVING a 5th Amendment right, unlike this corporation. Incidentally, the California Court of Appeal brushes aside the defense claim of lack of reciprocity. The Court of Appeal says that due process doesn't really require reciprocity, it just requires that the defense not be surprised. Wow.

People v. Appellate Division (World Wide Rush)
; 2011 DJ DAR 11095;
DJ, 7/25/11; C/A 2nd, Div. 1