February 13, 2014

CALIFORNIA DUI DEFENSE: A DIET COCKTAIL MIGHT LAND THE LADIES IN JAIL FOR A #DUI

CALIFORNIA WOMEN'S DUI DEFENSE NEWS:

Having A “Diet Cocktail” on your girls’ night out may be a good way to cut calories, but the unknown consequences can be earth shattering if you’re driving later on.

Women who consumer an alcoholic drink with a sugar free artificial sweetened mixer may cut calories, but it will also cause blood alcohol levels to spike unusually high, according to a recent study.

The problem, Australian researchers found, is that drinks made with "diet" mixers pass through the stomach more rapidly and, therefore, make blood alcohol levels spike particularly high.

cocktails%5B1%5D.jpg

The findings, published in the American Journal of Medicine, are based on an experiment with eight healthy young men. The volunteers had their blood alcohol levels measured repeatedly in each of two conditions: once after having a vodka beverage made with a sugary mixer, and once after drinking the same amount of vodka with an artificially sweetened mixer. The researchers also used ultrasound tests to measure each volunteer’s rate of stomach emptying after having the drink.

They found that with the diet mixer, the men’s stomachs emptied about 15 minutes sooner than when they drank the regular mixer, and that blood alcohol levels peaked at around the same time - 30 minutes after having the drink - regardless of which mixer was used. The difference, however, was that alcohol levels surged higher with the low-calorie mixer (to 0.05 percent, on average, versus 0.03 percent with the naturally sweetened mixer).

In some jurisdictions, this would mean the difference between driving legally and driving drunk, according to the study authors, led by Dr. Christopher K. Rayner of Royal Adelaide Hospital.

The difference in peak blood alcohol levels was "striking," the researchers write, and it shows that a drink's alcohol content isn't the only factor people should consider.

In general, women's blood alcohol levels soar higher than men's after drinking the same amount alcohol. And women may be particularly drawn to diet mixers in order to cut calories, the researchers note.

Continue reading "CALIFORNIA DUI DEFENSE: A DIET COCKTAIL MIGHT LAND THE LADIES IN JAIL FOR A #DUI" »

December 22, 2013

California Appeal Court Strikes Down Criminal Statutes for Vagueness

The 5th District Court of Appeal issued an opinion in Parker v. State of California last month upholding the trial court’s finding that three criminal state statutes were unconstitutional vague in violation of due process. (Fifth Appellate District, Case Nos. F062490, F062709 Fresno County Superior Court, Case No. 10CECG02116).

The statutes that would have restricted the sale of ammunition, but have been enjoined to prevent arbitrary and discriminatory enforcement. The panel’s 41-page published opinion clarifies California’s vagueness doctrine and confirms that criminal laws impacting fundamental rights must provide higher levels of clarity. Thus, they will be found to violate due process protections if they are vague in the “generality” or “majority” of cases – as opposed to every conceivable application. The opinion is an important for potential criminal defendants to prevent against unfair prosecution by ensuring statutes provide fair notice that their actions may result in criminal liability.

This is helpful and timely for my case. I soon will be filing an injunction/request for declaratory relief against the City of San Diego for to strike down its equivilent of the NFL Fan Code of Conduct on Due process ground.

The State of California filed a Petitioned for Review with the California Supreme Court on December 16. Anyone who is interested in seeing the Parker decision upheld may wish to weigh in with an amicus letter asking the Court to decline review. Amicus letters should be submitted as soon as possible. The 5th District’s opinion is extremely comprehensive and well written, and it should be permitted to stand. If the California Supreme Court wishes to weigh in on California’s vagueness doctrine again, it should do so after the Parker decision has percolated in the appellate districts to allow the Court to consider a more comprehensive evaluation of the issues by these courts.

The opinion and State’s Petition for Review are available here: http://michellawyers.com/guncasetracker/parkervcalifornia

November 21, 2013

Law Offices of Mary Prevost: CALIFORNIA COURT REVERSES VANGELDER....BUT THERE'S A SILVER LINING.

This morning People v. Vangelder came down. it was argued by Chuck Sevilla.

The Court reversed the Court of Appeal which had reversed a DUI conviction for excluding an expert who would have testified that the breath test machines used: 1) measure no alveolar air, and 2) had unreliable test result from variable in the breath sample due to factors like breathing
variations, temperature of the lung air, etc.

The Court ruled that 1) the Title 17 regulation requiring "essentially alveolar air" to be measured merely means to test the last expired breath. (See p. 45, et seq --you read that right). 2) The Court ruled that variables that alter breath alcohol out the mouth were close enough to
partition ratio rules (despite the expert's testimony that he was not comparing blood/breath ratios) to warrant exclusion also under that doctrine. (p. 49.)

They do all this because the state adopted the fed regulations for approvals of machines and since the machines are federally approved, this creates an irrebuttable presumption of accuracy. (See p. 46, you read that right). In other words, there can be no global attacks on approved breath machines because that would have the witness "nullifying the legislature." (You read
that right, see pp. 45-46).

AN AREA FOR LITGATION: The court finds that approved PAS machines are evidential breath tests. See p. 40, fn 23. This may give rise to the defense later that any subequent test must be suppressed (per Fiscalini) as being unnecessary and without justification.

November 9, 2012

VOLUNTARY AND INVOLUNTARY INTOXICATION AND UNCONSCIOUSNESS AS A DEFENSE

The defendant took prescription Ambien and then fell asleep. He ended up driving and was arrested and convicted of DUI drugs. His defense was that he was sleep driving.

This Court of Appeal articulates the rules governing involuntary intoxication (a complete defense) as opposed to voluntary intoxication (no defense). They uphold instructions telling
the jury that if it found that the defendant knew or had reason to know that his use of Ambien could cause sleep driving, this was not involuntary intoxication. If he didn't know and couldn't reasonably have known that his use of Ambien could cause sleep driving, this was involuntary intoxication and the resulting unconsciousness is a complete defense to driving under the influence.

People v. Mathson; 2012 DJ DAR 15322; DJ, 11/8/12; C/A 3rd

November 9, 2012

THE PUBLISHED COMPILATION HEARSAY EXCEPTION

Have you ever heard of the published compilation hearsay exception? California Evidence Code sec. 1340 says that a statement in a published compilation is admissible against a hearsay objection if the compilation is used and relied on as accurate in the course of
business.

Here, the DA got in testimony from a detective that the detective ran a cell phone number through Entersect, an online database, and the number came back to the defendant. The Court of Appeal says that the published compilation hearsay exception contemplates "an organized,
edited presentation of a finite quantity of information that, if not printed on paper, has been recorded and circulated in some fixed form analogous to printing."

There's no showing of that here. Moreover, there's that requirement that the information be relied on as "accurate." The mere fact that the police department uses the site, and pays for it, doesn't make it accurate. The C/A finds that admission of this information was error, though harmless.

People v. Franzen; 2012 DJ DAR 15281; DJ, 11/7/12; C/A 6th

August 31, 2012

DEATH PENALTY REVERSED BECAUSE OF PROSECUTORIAL MISCONDUCT-SO WHAT ELSE IS NEW

The California Supreme Court here reverses a death verdict on the basis of a Brady (373 U.S. 83) violation at the penalty phase. It seems that the defendant
claimed that he killed because the Columbian Mafia had threatened to kill the defendant and his entire family if he didn't.

It turns out that the prosecution had evidence which supported this claim but failed to turn it over. The DA actually argued at penalty that there was no evidence to support the duress claims of the defendant.

We will be watching to see if the Coudrt refers the prosecutor to the California State Bar for
prosecution. Don't hold your breath.

In re Bacigalup
o; 2012 DJ DAR 11861; DJ, 8/28/12; Cal. Supremes

Continue reading "DEATH PENALTY REVERSED BECAUSE OF PROSECUTORIAL MISCONDUCT-SO WHAT ELSE IS NEW" »

May 11, 2012

SAN DIEGO CRIMINAL DEFENSE: CALIFORNIA SUPREME COURT DECLARES NICOLE BROWN SIMPSON HEARSAY RULE UNCONSTITUTIONAL

California Evidence Code sec. 1370 (aka: the Nicole Brown Simpson hearsay exception) creates an exception to the hearsay rule for statements made by someone describing a threat or actual infliction of harm where the person is unavailable.

The California Supreme Court recognized that the videotaped interview of the witness who was unavailable for trial, which would be admissible under California Evidence Code sec. 1370, violates Crawford (541 U.S. 36) and confrontation; since it is purely testimonial.

Now, anytime a prosecutor tries to use California Evidence Code sec. 1370 for a statement made to the police, the analysis here ought to close the door.

Since the context here is a death penalty case, the California Supreme Court finds harmless
error and affirms the death verdict.

People v. Livingston; 2012 DJ DAR 5410; DJ, 4/27/12; Cal. Supremes

December 20, 2011

CALIFORNIA DUI DEFENSE: HOW TO AVOID A CALIFORNIA DUI THIS CHRISTMAS

I write and re-write this article every season and every year. But time and time again I see friends and people I know who have read it coming to me because they got arrested in San Diego, Orange County, Imperial County, Riverside, San Bernardino or Los Angeles for a DUI.

Okay, think about it... How smart is it to drive a two-ton killing machine through the streets with, say, a .16 blood alcohol level? Not very. In fact, it is inherently dangerous for you and everyone in your vicinity. How about.... How smart is it to take a cab instead of driving? How about, since it's the Christmas season and we all know we are going to imbibe, just plan to take a cab from the start? Yes, now we are getting smarter.

Yes, think about it. A GOOD DUI attorney will charge you about $5,000 or upwards pre-trial to work up your DUI case. Yes, people, there are defenses to high blood alcohol DUI's. I just got an offer of a wet reckless misdemeanor on a felony DUI with injury case that was originally charged as a felony. I also just got an offer of a straight misdemeanor to another DUI with injury case. Both clients were in the Navy, and could not have the felony without it ruining their careers. I recently sued San Diego's top DUI cop in federal court and won a settlement from the City because the cop falsified the basis for his stop. Yes, there are cheap attorneys out there and they will always claim to do cheaply what the best of us do for the cost of our experience. But you get what you pay for. I personally don't hire doctors that hawk themselves as "cheaper than the other guy." Nor would I ever hire an attorney that hawks himself for cheap.

Some cases California DUI can be won. Some California DUI cases cases can't be won. It depends on how competent your lawyer is, how the cop did the investigation, if the machines used were properly calibrated, and what you said at the time of the investigation, amongst other things.

Remember, anyone with a law license from the State of California can take your money and represent you on a DUI. That doesn't mean that they know what they are doing. Would you request advice from a novice if you had cancer? Of course not.

Now, if you haven't read it before, read it now. And if you have read it before, read it again. This article is chock full of info on what to do if you get stopped for a DUI and arrested.

It's starting now. Police agencies all over California 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 holiday weekend.

florida-traffic-school-3v.jpg

1. If you drive in California during the Christmas season, and you plan on having a cocktail or two, make sure you know where your license, registration and proof of insurance are. DUI officers historically write in their California 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 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 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 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. 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 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, law enforcement labs 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 sanitation 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 damaging evidence against you. And when you get home call this Southern California DUI Defense lawyer.

Continue reading "CALIFORNIA DUI DEFENSE: HOW TO AVOID A CALIFORNIA DUI THIS CHRISTMAS" »

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 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

Continue reading "RAPE OF AN UNCONSCIOUS PERSON AND LESSER INCLUDED OFFENSES" »

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

Continue reading "SAN DIEGO POLICE MISCONDUCT: DELIBERATELY VIOLATING MIRANDA TO GET A CONFESSION" »

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

Continue reading "CALIFORNIA POLICE MISCONDUCT: RIGHT TO PITCHESS DISCOVERY OF COMPLAINTS MADE AFTER THE ARREST" »

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

Continue reading "CALIFORNIA CRIMINAL LAWYER: MANDATORY DNA COLLECTION FOR FELONY ARRESTEES IS UNCONSTITUTIONAL" »

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

July 28, 2011

ENDANGERING A MINOR; CALIFORNIA PENAL CODE SECTION 654

ENDANGERING A MINOR; PENAL CODE SECTION 654

California Penal Code sec. 273a makes it a crime to cause or permit a child to suffer unjustifiable physical pain. Penal Code 273a(a) imposes a greatly enhanced sentence if the conduct was wilful and was committed under circumstances likely to produce great bodily injury (GBI) or death.

The defendant here had his 9-year old daughter penetrate herself with large dildos. The California Court of Appeal says this suffices for 273a(a). Second issue. The defendant
sent child porn pictures many times, some within seconds of each other. The Court of Appeal addresses the defense claim that Penal Code sec. 654 bans separate sentences on crimes done pursuant to a single course of conduct. The C/A finds that each email posting was separate, permitting sentences on every count.

People v. Clair; 2011 DJ DAR 11063; DJ, 7/25/11; C/A 1st, Div. 5

July 28, 2011

CALIFORNIA EVIDENCE: DOG SNIFF AND JUSTIFICATION FOR SEARCHING

During a traffic stop, the police had a "narcotics detection dog" sniff the exterior of the defendant's pickup truck. The dog alerted to a backpack, leading to a search, leading to lots of evidence. First, the California Court of Appeal says that a dog sniff of an exterior of a vehicle is NOT a search at all. The Court of Appeal says that the dog was well trained, and that alone established reasonable cause to search the backpack.

People v. Stillwell; 2011 DJ DAR 11132; DJ, 7/26/11; C/A 3rd