November 30, 2011

REVIEWING THE SUFFICIENCY OF THE EVIDENCE ON APPEAL

The deputy district attorney was able to prove up two counts without the victim, but not four other counts. The defense motion to dismiss under PC 1118.1 was denied. After the defense rested, the DA found the victim and she testified to all counts.

On appeal, the California Court of Appeal rejects the DA's claim that there was substantial evidence on the four counts because the defendant denied these counts but was found by the court to be lying. This comes up occasionally.

The rule, restated by the Court of Appeal is that disbelief of a witness is not affirmative evidence to the contrary. So disbelieving the defendant's denials does not establish the truth of the charges. And of course, the 1118.1 is reviewed on appeal as of the time it was made. So the later curing the lack of evidence by the victim's testimony on rebuttal doesn't alter the fact that at the time the 1118.1 was made, there was insufficient evidence.

Thus, the Court of Appeal reverses the four counts for insufficiency of the evidence.

People v. Velazquez; 2011 DJ DAR 17123; DJ, 11/30/11; C/A 2nd, Div. 4

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November 21, 2011

MULTIPLE CHILD PORN PICTURES ON MULTIPLE COMPUTERS. HOW MANY COUNTS?

When the defendant has multiple child porn pictures on multiple computers, for how many counts of possession of child porn can the defendant be found guilty? The C/A has ruled that the simultaneous possession of multiple items of one type of contraband constitutes a single violation, and that the simultaneous possession of two types of contraband in the same location constitutes a single violation. (Hertzig, 156 Cal.App.4th 398; see also Manfredi,169 Cal.App.4th 622.)

Incredibly, this Calidornia Court of Appeal says those case are limited to child porn found at the same time and in the same location. Here, the defendant had child porn pictures on a computer in his backpack and on a different computer in his storage shed. Yep, they uphold convictions on two counts.

Second issue. The court found that a Florida burglary prior qualified as a strike prior. But the crucial facts necessary to qualify the burglary as a serious felony as defined in California law came from stuff the DA said during the plea. The California Court of Appeal relies on that adoptive admission nonsense rejected in Roberts (195 Cal.App.4th 1106), which said that a failure to dispute a factual assertion by a DA could never qualify as an adoptive admission. The California Court of Appeal says the latter point was dicta and tries to distinguish Roberts factually, based apparently on the timing of the DA's statement. Craziness.

People v. Sample; 2011 DJ DAR 16690; DJ, 11/21/11; C/A 4th, Div. 1

November 21, 2011

PLEADING GUILTY BARS AN APPEAL BASED ON LACK OF FACTS TO SUPPORT CHARGES

The defendant pled guilty. He admitted a factual basis for the plea. He then moved to withdraw his plea, on the basis that with respect to two of the victims, there were no facts showing that the sexual acts (on minors) were done by force or duress; if this were true, there would be insufficient evidence on those counts. The California Court of Appeal says that the defendant's plea, especially in light of the admission that there was a factual basis for it, precludes any appellate review of the sufficiency of the evidence.

People v. Voit; 2011 DJ DAR 16727; DJ, 11/21/11; C/A 6th

November 17, 2011

HOW THE US SUPREME COURT GPS TRACKING CASES CAN COMPROMISE YOUR CELL PHONE SECURITY

Read on about how the US Supreme Court's GPS tracking case may compromise your cell phone security. Big brother is watching.

http://www.aclu.org/blog/technology-and-liberty/how-supreme-courts-gps-tracking-case-can-affect-your-cell-phone-privacy

November 15, 2011

CALIFORNIA CRIMINAL DEFENSE: DRIVING WHILE USING A CELL PHONE

the defendant was convicted of violating California Vehicle Code section 23123, which, as you
all know, bars use of cell phones while driving (unless it's hands free). The defense was that the defendant was using it while he was stopped at a red light and thus he wasn't "driving" at the time. You'll be stunned to hear that we lose. The defense analogizes this case to Mercer (53 Cal.3d 753). The Supremes in Mercer held that a
defendant was not driving for purposes of DUI where the defendant was sleeping in a car parked at the curb in a residential neighborhood, even though the engine was running. The California Court of Appeal rejects application of Mercer to these facts, in an exhaustive opinion suitable for a death penalty case, fully 24 pages long; and there's a concurring opinion! Their point? This IS driving, but what happened in Mercer wasn't.

People v. Nelson; 2011 DJ DAR 16531; DJ, 11/15/11; C/A 1st, Div. 1

November 11, 2011

RAPE OF AN UNCONSCIOUS PERSON AND LESSER INCLUDED OFFENSES

The defendant was convicted of rape of an unconscious person. He argues that he should have been entitled to a jury instruction on the lesser-included offense of simple battery. The California Court of Appeal disagrees. They say that the elements of rape of an unconscious person do not include use of force or violence. The California Court of Appeal concludes that this means that the elements do not include a harmful or offensive touching at all. Thus,
battery is not an inherent lesser offense. I can't really make sense of this; somehow, the unquestionable touching involved in a rape was NOT offensive? Huh?

People v. Hernandez; 2011 DJ DAR 16460; DJ, 11/11/11; C/A 2nd, Div. 1

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November 8, 2011

SAN DIEGO POLICE MISCONDUCT: DELIBERATELY VIOLATING MIRANDA TO GET A CONFESSION

This is a per curiam, summary reversal by the U.S. Supremes.

Essentially, it's an AEDPA (Antiterrorism and Effective Death Penalty Act) decision, reversing the federal appellate court because the trial court judge's rulings weren't obviously wrong. Of note is the court's discussion of Missouri v. Seibert (542 US 600). In Seibert, the U.S. Supremes invalidated a confession where the police deliberately failed to give Miranda warnings, got a confession, then gave Miranda and got the defendant to repeat her confession. The court distinguishes Seibert factually. Here, the defendant's first statement was a denial. Plus, there was a break before the second interview.

Bobby v. Dixon; 2011 DJ DAR 16237; DJ, 11/8/11; US Supremes

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