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 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 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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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

March 12, 2011

SAN DIEGO CRIMINAL DEFENSE: SWEARING AND OBSCENITIES

SWEARING AND OBSCENITIES

Here's one close to my heart since I just got off with Barnes & Noble's customer service rep after being on the line for 123 minutes.....

The Court says that the issue in this case is whether "complaints laced with references to bovine excrement, body parts and other vulgarities derived from sexually-related terms" violates PC 653m(a), the annoying phone call statute.

That statute requires threats to inflict injury or use obscene language lewdly. The defendant said lots of nasty things, but made no threats and the language wasn't used lewdly. So this ain't a violation of 653m. Incidentally, the calls were made to the customer comment line of Coldstone Creamery. (Maybe I can rent him to give Barnes & Noble a few calls?)

In his many, many profanity-laced phone calls to the comment line, the defendant explains that he really loves their ice cream, especially their pumpkin flavor. He says he goes there 400 times a year, but he feels ripped off because he believes the 48 ounce size isn't actually 48 ounces. (I'm channeling The Biggest Loser) In addition, he's annoyed by other customers. This is certainly obnoxious, but it's not a violation of 653m, sayeth this C/A.

People v. Powers; 2011 DJ DAR 3318; DJ, 3/3/11; C/A 2nd, Div. 6

January 26, 2011

CALIFORNIA EVIDENCE: WHEN IS A KNIFE NOT A DEADLY WEAPON?

Here is a really interesting case. When is a knife not a deadly weapon? One would usually answer "never", right? I mean, I once had a San Diego Deputy District Attorney argue that fruit pits were deadly weapons because the defendant tried ramming them down the victim's throat screaming, "Choke on it." A new judge listening to this novel and, frankly, weird assertion by the DA, drank the Koolaid. So, here's why this case is really a good, and reasonable, analysis...

The minor in this case used a butter knife to try to cut the victim. Not only did he fail to successfully cut the victim, the knife actually broke. The minor was found a ward for assault with a deadly weapon. (California Penal Code sec. 245(a).) This California Court of Appeal says that this knife wasn't a deadly weapon. Now, was it USED as a deadly weapon? No. As hard as the minor tried, this knife could never produce death or great bodily injury.

In re Brandon T.; 2011 DJ DAR 1321; DJ, 1/25/11; C/A 2nd, Div. 1

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January 24, 2011

CALIFORNIA CRIMINAL LAWYER: ENTRAPMENT REQUIRES GOVERNMENTAL ACTION

There's an Internet vigilante group, Perverted Justice, which entraps (and I use that word advisedly) folks into coming to meet what the folks think are minors, to have sex.

Of course, when the perp arrives, the police are there. The defendant here sought an entrapment jury instruction. No, says this California Court of Appeal.

Perverted Justice isn't the government, so essentially nothing they do can qualify as entrapment. The only way entrapment could possibly arise is if the group was literally an agent of law enforcement, and merely having the police at the destination doesn't make them agents.

People v. Federico; 2011 DJ DAR 1199; DJ, 1/24/11; C/A 4th, Div. 2

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July 9, 2010

CALIFORNIA CRIMINAL DEFENSE: WHEN IS IT A MASSIAH VIOLATION?

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

January 27, 2010

MURDER DEFENSE - IMPERFECT SELF DEFENSE

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

December 22, 2009

CALIFORNIA CRIMINAL LAW: THE DEFENSE OF BEING TOO DEPRESSED TO REMEMBER TO REGISTER AS A SEX OFFENDER?

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

December 18, 2009

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

(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

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December 16, 2009

SAN DIEGO CRIMINAL ATTORNEY MARY PREVOST: FELONY EVADING, SIREN AND LIGHTS

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

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December 14, 2009

LAW OFFICES OF MARY PREVOST: WHAT HAPPENS WHEN AN ATTORNEY FAILS TO ADVICE ON IMMIGRATION CONSEQUENCES?

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

November 25, 2009

CALIFORNIA CRIMINAL LAW: SLEAZY POLICE TACTICS TO GET CONFESSIONS ARE JUST FINE

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

November 13, 2009

CALIFORNIA CRIMINAL DEFENSE LAWYER: PROVOCATIVE ACT MURDER AND FIRST DEGREE MURDER

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

October 14, 2009

CALIFORNIA CRIMINAL DEFENSE: REQUIREMENTS FOR THE GANG ENHANCEMENT

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

October 6, 2009

CALIFORNIA CRIMINAL DEFENSE: THE DEFENSE HAS THE RIGHT TO A PARTISAN DEFENSE EXPERT

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

September 30, 2009

CALIFORNIA CRIMINAL LAW: IS A FENCED YARD A PUBLIC PLACE?

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

August 13, 2009

SAN DIEGO SEXUAL ASSAULT LAWYER: HERE'S ANOTHER HOFSHEIER WIN

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