California Criminal Lawyer Blog

MASSIAH VIOLATIONS

The police put a guy into the defendant's cell, figuring that they might get an admission from the defendant. The guy (who was implicated in the crime) did in fact get the defendant to make several incriminating statements. Does this violate Massiah (377 US 201), which bars the DA from sending undercover informants into jail to elicit confessions? No.

The informant did deliberately elicit incriminating statements, one requirement of Massiah. But the second requirement was not met: the informant has to
be acting as a government agent. This means he had to have acted under the direction of the government. The Supremes assure us that there was no evidence that there was any preexisting arrangement between the informant and the police. This is the kind of case where 10 years from now we're shocked to hear that the police did send this guy in so he
could get a break on his own case.

People v. Hartsch; 2010 DJ DAR 9870; DJ, 6/29/10; Cal. Supremes

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

THE DEFENSE OF BEING TOO DEPRESSED TO REMEMBER TO REGISTER AS A SEX OFFENDER

The charge here was failure to register as a sex offender, under California penal Code sec. 290. The defense tried to present evidence from a psychologist that the defendant was depressed, and that's why he didn't register. The court refused to permit that evidence. The California Court of appeal affirms ruling that depression or psychological disability is not a defense to the duty to register, so long as the defendant has knowledge of that duty.

People v. Bejarano; 2009 DJ DAR 17699; DJ, 12/22/09; C/A 4th, Div. 2

(Law Offices of Mary Prevost)

STATUTE BANNING POSSESSION OF BODY ARMOR BY EX-CONS IS VOID FOR VAGUENESS

It's a felony to possess body armor if you have previously been convicted of a violent felony. (PC 12370.) The defense here argues that 12370 is void for vagueness, because it fails to provide fair notice of which body vests qualify as the body armor banned by 12370.

Over a spirited dissent, the majority here agrees that 12370 is void. There's an extensive discussion of the rules governing notice that possession of something is a crime and why 12370 fails to give any kind of reasonable notice.

People v. Saleem; 2009 DJ DAR 17535; DJ, 12/18/09; C/A 2nd, Div. 3

Continue reading "STATUTE BANNING POSSESSION OF BODY ARMOR BY EX-CONS IS VOID FOR VAGUENESS" »

FELONY EVADING, SIREN AND LIGHTS

The defendant was driving 90 mph on his motorcycle. Oops. The officer activated his emergency lights and siren and pursued. The defendant got away. Then, the officer turned off the lights and siren (so he didn't panic motorists), then saw the defendant again. The officer didn't turn on his lights and siren to avoid alerting the defendant The defendant made an unsafe turn onto the highway. The defendant was convicted of felony evading, California Vehicle Code sec. 2800.2.

The defense argues that the unsafe turn wasn't during the pursuit and wasn't during a period when the lights and siren were on (as required by 2800.1). The California Court of Appeal affirms. There was only one pursuit, and the officer doesn't have to leave the siren and lights on continuously to trigger a violation of 2800.2.

People v. Copass; 2009 DJ DAR 17446; DJ, 12/16/09; C/A 2nd, Div. 6

Continue reading "SAN DIEGO CRIMINAL ATTORNEY MARY PREVOST: FELONY EVADING, SIREN AND LIGHTS" »

I'm not quite sure why this case is published. California Penal Code sec. 016.5 requires the court to advise a def. of potential immigration consequences of a plea. The 1016.5 advisement was given here. The California Court of Appeal rules that the def. can't get relief under 1016.5 when 1016.5 was complied with. They also rely on the recent Kim case (45 Cal.4th 1078) to reject other challenges by this defendant to his plea.

People v. Limon; 2009 DJ DAR 17333; DJ, 12/14/09; C/A 5th

The officer arrested the defendant and placed him in the police car. The officer advised the def. of his Miranda rights but did not seek or obtain a waiver of those rights. The officer then walked away for 5 to 10 minutes. The officer then returned and got admissions, again without a waiver. The officer admitted that not asking for a waiver and delaying before actually
asking incriminating questions were part of his interrogation technique.

In Missouri v. Siebert (542 US 600), Souter warns against sleazy tactics by the police in obtaining statements. This Court of Appeal assures us that Souter's opinion was only a plurality opinion and so doesn't need to be followed, and that thus the admission of the statement is just fine.

People v. Rios; 2009 DJ DAR 16280; DJ, 11/20/09; C/A 2nd, Div. 5

This is a provocative act murder case. A, B, and C try to kill D. In self defense, D kills C. The Cal. Supremes here hold that A and B can be convicted of first degree murder. The defendant must act with malice, must intend to kill, and must act with premeditation. The defendant or accomplice must proximately cause a killing. That killing can then be a first degree murder even in the provocative act situation. The Supremes stress that the jury must be instructed, and must find, that each defendant acted with intent and premeditation.

People v. Concha; 2009 DJ DAR 16039; DJ, 11/13/09; Cal. Supremes

REQUIREMENTS FOR THE GANG ENHANCEMENT

California Penal Code sec. 186.22(b) is an enhancement for crimes done for a gang. There
are two Ninth Circuit cases (Briceno, 555 F.3d 1069; Garcia, 395 F.3d
1099) which say that because Penal Code sec.186.22(b) requires that the crime be committed with the specific intent to promote the gang, it is insufficient to show mere membership in the gang coupled with an expert's generic testimony that all gang members commit crimes with the
specific intent to promote the gang. California state court cases reject this position, and this Court of Appeal also rejects this position. The California state courts and the 9th Circuit are locked in mortal combat.

People v. Vasquez; 2009 DJ DAR 14778; DJ, 10/14/09; C/A 2nd, Div. 6

THE RIGHT TO A PARTISAN DEFENSE EXPERT

the Ninth Circuit reverses this death case from Arizona for ineffective assistance of counsel (IAC). There's a lot about the failure to investigate. But here's what is of note.

The court appointed an expert, who helped the defense a lot. The Ninth Circuit finds IAC for failure to get a "partisan expert," that is, an expert confidential to the defense, with an obligation to further the interests of the defense, and who would assist in the evaluation, preparation, and presentation of the defense.

There's an excellent discussion here of your right to such an expert, which I hope we can use to get the experts we need, in all our cases, not just death penalty cases.

Jones v. Ryan; 2009 DJ DAR 14456; DJ, 10/6/09; 9th Cir. Fed C/A

IS A FENCED YARD A PUBLIC PLACE?

The officer saw the defendant with a handgun protruding from his pocket. Smart, buddy.

The defendant was in his yard, a fenced front yard of a single family house. The officer ran after the defendant, who went inside his house. The officer officer went inside and told the defendant to stop. The defendant dropped a bag of cocaine and then stopped. The AG tries to uphold this search based on the claim that the defendant violated PC 12031, carrying a loaded firearm in public.

So is the fenced-in yard a public place? This California Court of Appeal says no, a public place is an area where a stranger is able to walk without challenge. The fence precluded that. The fact that there was an unlocked gate doesn't matter either. The defense wins. Whee!

People v. Strider; 2009 DJ DAR 14261; DJ, 9/30/09; C/A 2nd, Div. 3

California penal Code sec. 290 requires sex registration for a defendant convicted of Penal Code sec. 288a, oral copulation with a 16-year old girl, but not for Penal Code sec. 261.5, sexual intercourse with that same girl.

In Hofsheier (27 Cal.4th 1185), the California Supremes struck down the mandatory sex registration requirement as violative of equal protection. This case deals with oral copulation of a minor under 16.

This is an easy defense win except for that wacko Manchel (163 Cal.App.4th 1108) case. The Manchel court upheld mandatory sex registration not because of the charge for which the defendant was convicted, but because the defendant's conduct COULD have resulted in a conviction for PC 288(a), which is on the mandatory registration list.

The Court of Appeal in Ranscht (173 Cal.App.4th 1369) correctly explained how ridiculous Manchel is; Manchel upheld mandatory registration because the defendant could have been convicted of an offense requiring registration, even though he wasn't convicted of that offense. This Court of Appeal agrees with Ranscht and strikes down the mandatory registration for oral copulation of a minor under 16, PC 288a(b)(2).

People v. Luansing; 2009 DJ DAR 11832; DJ, 8/12/09; C/A 2nd, Div. 2

YOUR RIGHT TO GET EXPERTS

This isn't rocket science. But I have been denied the right for funding to get necessary experts in cases before. Bring this opinion with you next time you think you are going to be denied a righteous request for expert funding.

The Ninth Circuit here reverses for ineffective assistance of counsel. The key evidence was blood. Defense counsel never tested the blood and never even consulted any expert to see what tests might be done on the blood or how to counter the DA's blood expert. The court's
discussion of the importance of experts to examine key evidence should
greatly help us in getting courts to appoint experts we need.

Richter v. Hickman; 2009 DJ DAR 11849; DJ, 8/12/09; 9th Cir. Fed C/A

A breath test measuring alcohol involves a conversion from breath to blood; that conversion is the partition ratio. The machine testing the breath is set with a standard, which is supposedly the human average: 2100 to 1.

But it turns out that partition ratios vary among people.

In Bransford (8 Cal.4th 885), the Cal. Supremes held that any evidence of variation was irrelevant to a charge of driving at or above .08, thereby barring the defense from presenting any evidence of variations in partition ratios.

But what about the (a) count? The Cal. Supremes hold, "If the defendant in a section 23152(a) case offers competent evidence showing that the use of a 2,100-to-1 conversion ratio may have yielded an inaccurate representation of his blood-alcohol level, introduction of this evidence is permissible."

So you CAN defend a DUI charge with a partition ratio defense; you just can't defend a .08 charge.

People v. McNeal; 2009 DJ DAR 10127; DJ, 7/10/09; Cal. Supremes

I'm scared. I'm very, very scared. While I have always championed personal financial sanctions on police officers who violate the Fourth Amendment rather than exclusion of evidence (seems a stronger deterrent to me), the courts have historically thought otherwise. Now, if a cop violates your Fourth Amendment rights, the evidence he subsequently learns of as a result of the illegal search or seizure is suppressed and cannot beused in court against you.

Will our chief justice, who championed such causes in the past, lead the Supremes to total expungement of Fourth Amendment remedies?

Take a look at the URL below. Maybe so.

http://www.nytimes.com/2009/01/31/washington/31scotus.html?_r=1

YOUR RIGHT TO GET EXPERTS
This is a case which should assure our right to government-funded experts in cases where our clients do not have the funds to pay.

The Ninth Circuit here reverses for ineffective assistance of counsel. The key evidence was blood. Defense counsel never tested the blood and never even consulted any expert to see what tests might be done on the blood or how to counter the DA's blood expert.

The court's discussion of the importance of experts to examine key evidence should greatly help us in getting courts to appoint experts we need. I have encountered denials by courts here in the past. Bring a copy of this opinion with you if you think you are going to be denied.

Richter v. Hickman; 2009 DJ DAR 11849; DJ, 8/12/09; 9th Cir. Fed C/A

yOU KNOW, SOMETIMES OUR CLIENTS ARE PRETTY WACKY. BUT THIS TAKES THE CAKE.

The defendant has a business, Temple 420, in Hollywood. It was a church in which members could buy marijuana. The defendant planned to sell marijuana from vending machines. The defendant said he was trying to bring religion to the pot movement because there are a million people trying to legalize pot and a lot of them don't have God in their lives.

The defendnat sold marijuana to an undercover officer. Surprisingly, he got convicted of sale
of marijuana. On appeal, he claims a religious freedom defense. Rejected. Duh.

People v. Rubin; 2008 DJ DAR 17624; DJ, 12/2/08; C/A 2nd, Div. 6

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