California Criminal Lawyer Blog

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

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

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" »

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

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

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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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" »

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

The defendant actually wins one issue in this death penalty affirmance, not that it does this actual defendant any good. The defendant was convicted, in addition to murder, of kidnapping. In Martinez (20 C4th 225), the California Supreme Court held that the jury is required to consider the totality of the circumstances in determining whether the movement of the victim was substantial enough to qualify as a kidnapping. The previous rule was exclusively dependent on the distance involved. The judge here instructed the jury under the previous rule. The California Supreme Court finds error and reverses the kidnapping conviction.

People v. Castaneda; 2011 DJ DAR 9863; DJ, 7/1/11; Cal. Supremes

The U.S. Supreme Court has granted certiorari in Williams v. Illinois. The case
is a DNA confrontation case where an expert witness rendered an expert opinion based upon the DNA work of others. The case squarely addresses the issue unresolved by Bullcoming as to whether or not the Confrontation Clause permits an expert witness to render an opinion based upon reviewing what is otherwise testimonial evidence. Also, DNA testing often involves multiple experts. Allowing one expert to testify is in keeping with the dissenters' concerns in Bullcoming.

A series of cases being handed down by the U.S. Supreme Court and California Court of appeals are being heralded by prosecutors as "new law." Once such case is the U.S. Supreme Court's decision in Bullcoming. Another is Vangelder, discussed below.

What is frightening about this prosecutorial harkening, however, is that none of this really is new law at all. It's always been the law. It's just that prosecutors and rogue judges' deviate from it. The "norm" has been: Violate Due Process and the evidence code in order to assist the prosecution in obtaining convictions.

But the U.S. Supremes recently, and now the California Court of Appeal, are pinning their ears back. And they better listen.

COURT OF APPEAL SAYS WE HAVE THE RIGHT TO CHALLENGE BREATH TESTING DEVICES

The California Supreme Court has held that we can't challenge the partition ratio used to prove that a defendant was driving at or above .08. Note that we can challenge it on the DUI charge itself, though only if we can show a problem with this specific defendant, not just general problems with partition ratio. (McNeal, 46 C4th 1183.)

Here, the trial judge entirely barred the defense expert from testifying that breath testing devices (PAS and breath testing machines) are unreliable because of problems getting pure data about blood alcohol from the intake of air. The expert would testify to problems affecting the amount of alcohol found in the alveolar air supposedly being tested. The California Court of Appeal says that the exclusion of the expert's testimony was error, with respect to both the .08 and the DUI charges. The California Court of Appeal says that this differs from partition ratios. Big defense win; Chuck Sevilla, San Diego PC, was successful appellate counsel.

People v. Vangelder; 2011 DJ DAR 9949; DJ, 7/5/11; C/A 4th, Div. 1

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

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

As this California Court of Appeal clearly explains, the "repeal" of diminished capacity, found in California Penal Code sec. 28 and 29, only bars expert testimony that the impairment of the defendant precluded him from having the CAPACITY to have the mental state at issue.

We retain the right to have the expert testify that the defendant had a mental condition, and that mental condition typically precludes a person from forming the required mental state. But the expert can't give an ultimate opinion about whether the defendant actually had that mental state.

Here's the Court of Appeal's statement of the rule: "sections 28 and 29 do not prevent the defendant from presenting expert testimony about any psychiatric or psychological diagnosis or mental condition he may have, or how that diagnosis or condition affected him at the time of the offense, as long as the expert does not cross the line and state an opinion that the defendant did or did not have the intent" at issue.

The Court of Appeal is eplicit in what defense expertsare entitled to testify to, and their position is quite helpful. This is a must-read case, with essentially a script on what the expert can testify to.

People v. Cortes; 2011 DJ DAR 2349; DJ, 2/11/11; C/A 6th

Washington, DC (Jan. 25, 2011) – As more than a decade of crime lab scandals have shown, forensic evidence presented in court is, at times, often bogus – based on speculative research, inadequate quality control, and subjective interpretations. Ensuring the scientific integrity of forensic evidence is essential to preventing wrongful convictions and exonerating the innocent.

Sen. Patrick Leahy has introduced the Criminal Justice and Forensic Science Reform Act of 2011. Two years ago, the National Research Council of the National Academies in Washington, D.C., issued a landmark report, Strengthening Forensic Science in the United States: A Path Forward, which set forth a roadmap for forensic evidence reform and renewed the call for fairness in the criminal justice system. The National Association of Criminal Defense Lawyer's report, Principles and Recommendations to Strengthen Forensic Evidence and Its Presentation in the Courtroom, which supports the recommendations of the NRC Report, was approved and adopted by the association’s board of directors in February 2010.

“The great number of exonerations in the past two decades has greatly undermined the public trust in the criminal justice system,” said NACDL President Jim E. Lavine, of Houston. “Confidence that the system correctly identifies the perpetrators of criminal offenses and prevents wrongful convictions has been eroded by lab scandals around the country, and discoveries that convictions have been obtained through error, poor training, pseudoscience, and sometimes outright fraud,” Lavine said.

Continue reading "FORENSIC SCIENCE REFORM IS LONG OVERDUE" »

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

Continue reading "CALIFORNIA EVIDENCE: WHEN IS A KNIFE NOT A DEADLY WEAPON?" »

Does California penal Code sec. 654 apply to enhancement? This California Court of APpeal says, "Cases sometimes ask whether section 654 applies to enhancements. However, there is not necessarily a single yes or no answer to this question. As the law now stands, section 654 may apply to some enhancements under some circumstances."

Confused yet? The California Court of Appeal notes that some cases say that 654 never applies to enhancements. The court says that Apprendi (530 U.S. 466) casts doubt on this line of cases. But of course this Calfornia Court of Appeal doesn't have to resolve that issue, and skates by, leaving us all to wonder.

But they do rule that a defendant can't get sentenced for both California Penal Code sec. 2022.5 and 12022.7 for the single act of using a firearm and thereby inflicting great bodily injury.

At least they answered that question for us.

People v. Ahmed; 2011 DJ DAR 1203; DJ, 1/25/11; C/A 4th, Div. 2

Continue reading "CALIFORNIA CRIMINAL LAW: CAN A SINGLE ACT RESULT IN MULTIPLE ENHANCEMENTS?" »

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

Continue reading "CALIFORNIA CRIMINAL LAWYER: ENTRAPMENT REQUIRES GOVERNMENTAL ACTION" »