California Criminal Lawyer Blog

BRADY DUTY BUT NOT PITCHESS DUTY

The defendant was convicted of murder, and a key witness testified against him. The police detective told the defense that this guy wasn't a paid informant. Some years later, the defense stumbled across information which showed that the guy was in fact a paid informant. The defense now files a habeas petition.

The defense seeks Brady (373 U.S. 83) discovery of complaints in the detective's personnel file that the detective claimed that informants weren't paid when in fact they were.

This is an interesting case because the C/A finds no basis for Pitchess (11 C3d
531) discovery but does order review of the detective's personnel file on Brady grounds, correctly finding that prior complaints about the detective lying about informants being paid would impeach the detective's testimony at any habeas hearing. This is the first possible published case where the court finds a discovery duty under Brady but not
Pitchess.

Eulloqui v. Superior Court; 2010 DJ DAR 1930; DJ, 2/7/10; C/A 2nd,
Div. 1

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The DA was concerned about the safety of a key witness. So the DA handed over the statement of the witness, but got the judge to order defense counsel NOT to discuss the statement with the defendant.

See any problem with that? I mean, what judge would do that? Fortunately, the Court of APpeal saw a BIG problem with that. I think it's called Due Process.

The California Court of Appeal starts with Geders (425 U.S. 80), where the US Supremes held that a court order barring defense counsel from talking to the defendant during an overnight break in the defendant's testimony violated the defendant's right to counsel. The AG argues that this case didn't involve a total ban on communication, just a ban on a specific topic.

The Court of Appeal recognizes the need of counsel to consult with his client on the
statement at issue. Hey, the witness TESTIFIED, for goodness' sake. The scope of the order here was ambiguous, but apparently the ban barred counsel from discussing that testimony with the defendant! Anyway, the Court of Appeal notes that the DA couldn't show good cause for the order, even assuming such an order could ever be made.

People v. Hernandez; 2009 DJ DAR 15880; DJ, 11/10/09; C/A 6th

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INVESTIGATION INTO JUROR MISCONDUCT

The law governing investigation of juror misconduct is very poorly understood, as this case illustrates. California Code of Civil Procedure secs. 206 and 237 provide that IF you seek disclosure of juror identification information, the court is supposed to notify the jurors and withhold the information IF the jurors object. Remember, though, that you can interview jurors so long as you aren't seeking disclosure of juror information under 206 or 237, with the restriction that if you talk to them more than 24 hours after verdict, you must tell them (among other things) of their absolute right
not to talk with you. The jurors here objected to disclosure, so the court denied disclosure of juror information. Fine.

But the judge then terminated the inquiry into juror misconduct. The Court of Appeal rules that this was wrong. Sure, disclosure to counsel is to be denied if the jurors object. But that doesn't eliminate the duty of the COURT to conduct an inquiry into juror misconduct if there's some basis to believe that such misconduct occurred. The judge here denied disclosure, then refused to conduct any inquiry himself. Wrong.

The defendant's constitutional right to a fair trial compels judicial inquiry into claims of juror misconduct, even if, after notification, the jurors don't want any disclosure of
their identities to the lawyers.

People v. Tuggles; 2009 DJ DAR 15464; DJ, 10/30/09; C/A 3rd

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ATTEMPTED CRIMINAL THREATS AND REASONABLENESS OF THE VICTIM'S FEAR

In order to violate California Penal Code sec. 422, criminal threats, the victim must be in
reasonable fear for his or her safety. The defendant here was charged and convicted of attempted 422. But the judge failed to instruct the jury that it must be reasonable for the victim to have suffered fear as a result of the threat. The California Attorney General argues that reasonableness isn't required for attempted Penal Code sec. 422. The Court of Appeal disagrees. They reverse for failure to properly instruct the jury.

People v. Jackson; 2009 DJ DAR 15090; DJ, 10/23/09; C/A 6th

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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

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ARE CAMPUS SECURITY GUARDS PUBLIC OFFICERS FOR PURPOSES OF PENAL CODE SECTION 148?

Campus security guard Bryan Butts chased this minor, yelling at him to stop. The minor kept on going. A police officer showed up and told the minor to stop, and the minor did so. The minor was found a ward for a violation of PC 148. 148 makes it a crime to resist a "public
officer."

Is a campus security guard a "public officer"? Nope.

In re M.M.; 2009 DJ DAR 14161; DJ, 9/28/09; C/A 4th

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This is the fourth California Court of Appeal case applying Melendez-Diaz (129 S.Ct. 2527). And this Court of Appeal splits the baby in half.

Melendez-Diaz held that use of affidavits from criminalists violated the 6th Amendment. Even the DAs agreed that Melendez-Diaz wiped out Geier (41 Cal.4th 555), the case from the California Supremes which said it was OK for a supervisor to testify to the results of a test done by a subordinate, even though the
supervisor never saw the actual test.

This Court of Appeal claims that Geier is distinguishable from Melendez-Diaz for two reasons. First, in Geier the supervisor testified, while no one testified in Melendez-Diaz.

Second, the affidavit in Melendez-Diaz was prepared a week after the test, while
the report in Geier was prepared at the time of the test. Incidentally, I can't imagine how your DA could ever prove when the report was prepared, other than by inadmissible hearsay.

Anyway, the Court of Appeal says that descriptions in the report about the physical exam of the victim are admissible, but the narrative description by the victim about the injuries is testimonial and thus not admissible. Then they find harmless error.

We now have two outright wins, one loss, and this wacko case.

People v. Gutierrez; 2009 DJ DAR ; DJ, 9/ /09; C/A 2nd, Div. 1

http://www.courtinfo.ca.gov/opinions/

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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

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This might seem like a niche juvenile sealing case, but I suspect it has great potential impact. The juvenile court found R.S. a delinquent ward of the juvenile court for having performed a lewd act on a 7-year old victim, M.L. The parents of M.L. want to sue the parents of R.S. through
their insurance company. The insurance company wants to view the tape of an interview of M.L. by a Child Abuse Services Team (CAST); that interview was done to pursue the juvenile delinquency action.

The juvenile court granted disclosure with an order limiting dissemination of the tape. The C/A upholds this disclosure order. This is a rare opinion on WIC 827, the statute governing inspection and disclosure of juvenile delinquency records. So why should you care? Have you ever sought disclosure of juvenile court delinquency (or dependency, for that matter) records so you could use them to impeach a prosecution witness?

This is a great case discussing the court rules and the law governing this topic.

R.S. v. Superior Court; 2009 DJ DAR 4857; DJ, 4/2/09; C/A 4th

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Here is yet another spectacularly awful case from the California Supreme Court relating to defense experts. In Zamudio (43 Cal.4th 327), the California Supreme Court said that the DA could present evidence that an item had been provided to the defense laboratory.

In this case, the DA repeatedly asked witnesses whether the sheriff's DNA lab could have been ordered to release samples to the defense for testing. Notably, the trial judge actually sustained defense objections, noting that this raised questions about the credibility and competency of defense counsel, a point the Supremes ignore.

The Supremes say these questions weren't a violation of work product, since no "writing" from the defense was involved. They brush aside claims of attorney-client privilege (no communication from a client), Griffin (380 U.S. 609) error (OK to comment on the failure of the defense to introduce material evidence), and that the questions shifted the burden of proof to the defense.

This is really, really bad and we're going to have to develop strategies to deal with it. Of curse, we must all demand that the court pay for the retesting of evidence from the prosecution. But we need more...much more.

People v. Bennett; 2009 DJ DAR 1429; DJ, 1/30/09; Cal. Supremes

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NO PRE-PRELIMINARY HEARING PITCHESS DISCOVERY

Out top appellate counsel in the California criminal defense community are litigating whether the right to pre-prelim. discovery survived Prop. 115, and we thought this case might resolve it. But nope. Instead, they hold that we can't ever get Pitchess (11 Cal.3d 531)
discovery prior to prelims.

They say that it's "unlikely" that Pitchess discovery would actually affect the prelim., which is merely a limited probable cause hearing. But what if we could make a showing that in
this particular case it IS likely that disclosure of citizen complaints against the police officers would cause the preliminary hearing magistrate to refuse to hold the defendant to answer or find a lesser?

You know, like when I found out that San Diego Police Officer Broxterman was removed from the DUI enforcement unit and then suddenly reappeared ten years later making the same illegal traffic stops that got him into trouble ten years prior? And the prosecutors didn't tell us about it? ANd now he is gong to testify n my prelim about a traffic stop and other (false) stuff, and I can't impeach him with the conplaints about him? hhhh. Hush. Hush.

We still can't get discovery? What kind of rule is that? In any event, they can't now seriously claim that they are preserving testimony at this limited hearing where we can't find out much beforehand. California Public Defense Association appellate guru Mark Harvis is appellate counsel on this one. His writ petition was summarily denied the first time, after which the Cal. Supremes granted review and transferred the case back to the Court of Appeal. Mark will petition the Supremes again.

People v. Galindo; 2009 DJ DAR 313; DJ, 1/9/09; C/A 2nd, Div. 8

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The Cal. Supremes here decide when the police can retain all the copies of a sealed Hobbs (7 Cal.4th 948) search warrant affidavit. Their answer effectively bars this.

To obtain an order to retain all copies, the police have to show that disclosure would endanger an informant, that security procedures at the clerk's office are inadequate, that police security procedures are adequate, that the police have procedures to ensure retention of the affidavit for 10 years, and the magistrate must make a sufficient record of the documents reviewed to make sure that later on everyone can tell what was reviewed.

That didn't happen here, so letting the police keep all the copies was error.

And when are the police EVER going to be able to show that the clerk's office leaks like a sieve? Never.

So what happens to this defendant? The Supremes find that it's not impossible to reconstruct what happened here. So they remand for a full hearing to determine whether meaningful appellate review of the actual affidavit is in fact possible. If not, apparently the
warrant gets quashed. The police can't keep the only copies of sealed search warrant
affidavits any more, and we can still seek suppression if what was in those affidavits can't be reconstructed.

People v. Galland; 2008 DJ DAR 18856; DJ, 12/30/08; Cal. Supremes

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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

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GOOD POST-VERDIN CASE; NO SHRINKING OUR CLIENTS DURING TRIAL

Here is a clear discovery win for the defense, although it is another affirmance of another deathpenalty case.

In Verdin (43 Cal.4th 1096), the California Supreme Court held that the discovery
statutes are the exclusive authorization for discovery orders directed to the defense, barring courts from making up ones not listed in Penal Code 1054.3.

In Verdin, the court said that prior to trial, judges can’t order your client to be “shrunk,” that is, examined by DA mental health experts, even though you put your client’s mental state in issue (with some exceptions).

But what about DURING trial? The Supremes say that Verdin controls! No court can order our client to submit to a mental health exam, even during trial. Nor can the DA then get a jury instruction or be allowed to argue that your refusal to submit to such an exam shows that your client is guilty.

On a second point, the recent Zamudio (43 C4th 327) case said that the DA could present evidence that an item had been provided to the defense laboratory. Here the prosecution asked the defense expert whether some of the defendant's blood sample had been released for independent analysis. The Supremes make the assumption that the DA's question to its expert about a defense test were erroneous, but find it harmless. Hey, at least they didn't say it was correct.

People v. Wallace; 2008 DJ DAR 12675; DJ, 8/15/08; Cal. Supremes

Continue reading "SAN DIEGO CRIMINAL DEFENSE NEWS: JUDGES CAN'T ORDER PSYCHIATRIC EXAMS ON CLIENTS" »

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This case absolutely defies logic and supports the weirdo proposition that defense attorneys have to assist prosecutors when they lose their witnesses. You've got to be kidding!

Okay, so in this case, the DA got to the end of his case. But there was no victim to put on to support counts 3 and 4. The judge granted a dismissal on those counts pursuant to Penal Code sec. 118.1 granted.

The defendant informed his lawyer that he knew where the victim was and wanted her called on the remaining counts. Hide and seek! The court was outraged, and vacated its 1118.1 dismissal, resuscitating the dismissed counts.

Ironically, the jury acquitted on counts 3 and 4. So, then, why the outrage?

But the California Court of Appeal is outraged at this malfeasance by the defendant. He's estopped from claiming double jeopardy because of forfeiture by wrongdoing.

This is an extreme case: the court claimed the defendant intentionally interfered with the trial process with his incredibly transparent ploy. If you're scratching your head, join the group. What, exactly, did the defendant do wrong? When the DA announced that he couldn't find the victim, was the defendant supposed to jump up and announce that he knew where she was?

Has the C/A heard of the 5th Amendment?

So, when the prosecutors lose their witnesses next time, make sure you get up and give them directions. This is just another example of judges trying to help inept prosecutors.

People v. Pearson; 2008 DJ DAR 12035; DJ, 8/4/08; C/A 2nd, Div. 6

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PITCHESS DISCOVERY WIN

The trial court denied this Pitchess (11 C3d 531) motion in a misdemeanor case. The City Attorney argues that the facts are essentially agreed upon, and that the defense justification for
discovery is really just about differences in perceptions.

The Fourth District, Division One, Court of Appeal disagrees, saying the allegations in the defense affidavit that the police beat up the defendant and that the defendant never did a lot of the stuff the police claimed weren't just a difference in perception.

Matt Braner, San Diego PD, was successful appellate counsel. City Attorney Mike Aguirre and his incompetent hatchetman, David Stotland, lost - again. Perhaps they should think about protecting the public from the bad cops?

Uybungco v. Superior Court; 2008 DJ DAR 8444; DJ, 6/11/08; C/A 4th

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GETTING JUROR INFORMATION

When the jury was polled after they convicted the defendant, they all said yes except juror #2, who said nothing. The judge asked again, juror #2 paused, then said yes.

The other jurors left the room, and the judge asked #2 if the guilty verdict was her verdict, she said no, but then said that she felt compelled to vote guilty because the other jurors were voting guilty.

The juror said, "I had reasonable doubt." When asked why, she said that this was a felony. The judge said, setting that aside, did the DA prove the case beyond a reasonable doubt; yes.

Incredibly, over an excellent dissent, the Court of Appeal here holds that these facts fail to establish justification for disclosure of juror information, to permit the defense to follow this up. The majority says, hey, the LAST answer was yes, that's good enough. Read the dissent for why this is just plain wrong.
People v. Carrasco; 2008 DJ DAR 8421; DJ, 6/11/08; C/A 2nd, Div. 8

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Because prosecution did not fully utilize Penal Code section 1334 et seq. (Uniform Act to Secure the Attendance of Witnesses from without the States in Criminal Cases) by requesting that witness be taken into custody even thought the witness had made it clear she would not appear it did not show due diligence and San Diego Judge John S. Einhorn erred in allowing the government to introduce testimony.

California Code of Civil Procedure section 1219, subdivision (b), which restricts the court's power to use incarceration to compel testimony of a sexual assault victim does not affect the court's power to order that an alleged victim of a sexual assault be brought before it or seek that the witness be taken into custody.

People v. Cogswell (C.A. 4th, 10/31/07, D049038) 07 C.D.O.S. 12668

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CALIFORNIA CRIMINAL DEFENSE LAWYER NEWS

This is a long awaited win by Orange County Deputy Public Defender Don Landis in which the Supreme Court agreed that defense attorneys are entitled to file Pitchess (11 Cal.3d 531) declarations under seal. California criminal defense attorneys have been waiting with baited breath for this decision.

The court restates Warrick (35 Cal.4th 1011) stating the showing is sufficient if defense counsel articulates that the police misconduct might or could have occurred. The
court says that in light of Warrick, defense counsel won't need to disclose
privileged information. All defense counsel has to do is to simply deny the events claimed by the police.

This greatly aids defense attorneys in our efforts to prevail on Pitchess motions because the courts now are reiterating just how minimal our showing needs to be. If defense counsel decides to disclose privileged information, it can be filed it under seal and
then the court rules on it. The court disapproves Davenport (96 CA4th 255),
and rules that the City Attorney, representing the police officer, is NOT
to get an unredacted copy of the affidavit.

Thisa is a long-awaited and much needed win for California criminal defense lawyers.

Garcia v. Superior Court; 2007 DJ DAR; DJ, 8/10/07; Cal. Supreme Court.

Continue reading "CALIFORNIA CRIMINAL DEFENSE ATTORNEYS MAY FILE SEALED DECLARATIONS IN PITCHESS DISCOVERY MOTIONS" »

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