California Criminal Lawyer Blog

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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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

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

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

The defendant was parked in a no parking zone. The police approached; the defendant started to drive away. The police ordered the defendant to stop, which he did, then the defendant tossed something on the floor of the passenger side. The police ordered the defendant out.

when the defendant opened his car door, the police saw what they thought was cocaine, and this led to searching and arresting the defendant. The defense argues that the no-parking violation was essentially a civil matter which didn't permit a detention, search, or arrest. California Vehicle Code sec. 40200 and 40202 say that non-misdemeanor parking violations are civil and are subject only to civil penalties.

The Court of Appeal here relies on Whren (517 US 806). We always think about Whren as standing for the proposition that the bad faith of the police in detaining a suspect is irrelevant. But another part of Whren says that the police can make a stop if they have probable cause to believe that a traffic law was violated. The Court of Appeal takes this to mean that ANY traffic violation permits a detention. Glad I don't practice in the Second District, Division 1.

People v. Bennett; 2011 DJ DAR 11027; DJ, 7/22/11; C/A 2nd, Div. 1

SUPPLYING THE SEALED PITCHESS MATERIAL TO THE COURT OF APPEAL

This case exists because the California Court of Appeal was annoyed at appellate counsel. Criminal defense lawyers want the Court of Appeal to review the Pitchess (11 Cal.3d 531) ruling in the trial court. But do we make sure that the appellate court HAS the sealed Pitchess proceedings? No.

The Court of Appeal says that all we have to do is make a motion under Rule 8.320 in the trial court to have the sealed stuff sent to the Court of Appeal, and then they get it. So it's super secret stuff but in order to be entitled to relief, we still have to make a
motion to have the super secret sealed stuff sent. But won't the ruling on our Rule
8.320 motion also be sealed? Isn't this crazy?

People v. Rodriguez; 2011 DJ DAR 3515; DJ, 3/8/11; C/A 4th, Div. 1

Pretty much all newer cars have a sensing and diagnostic module (SDM), or crash data recorder, a kind of black box that records data relating to a collision. There was a felony hit and run and manslaughter. The defendant's car was seized. A year later, the police
(on advice of a DA!) downloaded the SDM data without a warrant.

In a case of first impression, this California Court of Appeal holds that a driver DOES have a
subjective and reasonable expectation of privacy in the SDM data. The California Court of Appeal says that the police could have probable cause to get the data, but they didn't have PC here. The valid seizure of the car didn't justify an intrusion in an internal part or component of the car.

People v. Xinos; 2011 DJ DAR 2164; DJ, 2/9/11; C/A 6th

So when do questions asked during a booking search trigger Miranda? Back in 1990, the U.S. Supremes in Muniz (496 U.S. 582) ruled that routine booking questions may be asked without Miranda, and any resulting answers used, so long as the questions were not "designed to elicit incriminating admissions." This is an area where a showing that the police asked the questions as a pretext to elicit incriminating information will cause you to prevail.

Here, the booking officer asked about the defendant's gang affiliation; the answer was used against the defendant, even though Miranda was never given. The California Court of Appeal upholds this, claiming that it was just for administrative purposes. The California Court of Appeal says that it is NOT holding that booking questions about gang affiliations are always OK. Had the booking officer known about the crime, for example, that might have led to a different result.

People v. Gomez; 2011 DJ DAR 2149; DJ, 2/9/11; C/A 4th, Div. 2

disclosure of A confidential informant is not mandatory even when THE informant was percipient witness. This is outrageous. But according to this Court of Appeal, the court had duty to hold in camera hearing to determine if the confidential information can given exculpatory evidence. "[T]he balance between the public interest in protecting the flow of information to law enforcement officers and Davis's right to prepare his defense is struck by having an in camera hearing prior to any disclosure."

Really? So, rather than the 6th Amendment to confront the acusers, we have an "in camera" review where the judge says what? "Dear CI, now you would never 1) lie; 2) color the facts, or; 3) cover up for your friemds, would you?" CI: "Why, no, your honor. Never!".

It is well known that only through thorough cross examination does the truth come out. This case guts the truth-extracting process.

Davis v. Superior Court (B216345, Second Dist., 7/22/10) Cal.App.4th

NEED ABSOLUTE NEED FOR INVESTIGATORS

Terrific case, even though the lawyer here was found ineffective. Lake County has 12 contract Public Defenders. hey have only one investigator for the entire office. So the investigator was way too busy to work on this trivial transportation of meth case, on which the defendant got over 10 years.

The defense made a California Penal Code sec. 1538.5 motion, claiming that the layout of the intersection at issue made it impossible for the officer to see what he claimed to have seen, that the defendant didn't stop at the stop sign. It turns out that it's an unusual intersection, and if the ofrficer was where he said he was, he couldn't have seen the area of the stop sign.

The California Court of Appeal finds ineffective assistance of counsel (IAC) here, for the failure to use an investigator. There's an excellent discussion about the need for trained, professional investigators. The defense had some photographs taken by the defendant, and even some civilian witnesses, but these were no substitute for a real investigator. I think that we can use this to fully staff investigator units in PD offices, and to get more investigators in offices or contract groups without enough investigators. I even think we can use this to get all sorts of
experts.
Jones v. Superior Court; 2010 DJ DAR 10216; DJ, 7/1/10; C/A 1st, Div. 2

Continue reading "CALIFORNIA CRIMINAL DEFENSE: ATTORNEYS-YOU MUST HAVE INVESTIGATORS" »

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

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

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

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

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

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

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/

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

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

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