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.

March 29, 2013

Little-Known Surveillance Tool Called Stingray Raises Concerns by Judges, Privacy Activists

From The Washington Post. Click HERE for original story.

By Ellen Nakashima, Published: March 27

Federal investigators in Northern California routinely used a sophisticated surveillance system to scoop up data from cellphones and other wireless devices in an effort to track criminal suspects — but failed to detail the practice to judges authorizing the probes.

The practice was disclosed Wednesday in documents obtained under the Freedom of Information Act by the American Civil Liberties Union of Northern California — in a glimpse into a technology that federal agents rarely discuss publicly.

The investigations used a device known as a StingRay, which simulates a cellphone tower and enables agents to collect the serial numbers of individual cellphones and then locate them. Although law enforcement officials can employ StingRays and similar devices to locate suspects, privacy groups and some judges have raised concerns that the technology is so invasive — in some cases effectively penetrating the walls of homes — that its use should require a warrant.

The issues, judges and activists say, are twofold: whether federal agents are informing courts when seeking permission to monitor suspects, and whether they are providing enough evidence to justify the use of a tool that sweeps up data not only from a suspect’s wireless device but also from those of bystanders in the vicinity.

In Northern California, according to the newly disclosed documents, judges expressed concerns about the invasive nature of the technology.

“It has recently come to my attention that many agents are still using [StingRay] technology in the field although the [surveillance] application does not make that explicit,” Miranda Kane, then chief of the criminal division of the Northern California U.S. attorney’s office, said in a May 2011 e-mail obtained by the ACLU.

As a result of that, she wrote, “effective immediately, all . . . applications and proposed orders must be reviewed by your line supervisor before they are submitted to a magistrate judge.”

The Justice Department has generally maintained that a warrant based on probable cause is not needed to use a “cell-site simulator” because the government is not employing them to intercept conversations, former officials said. But some judges around the country have disagreed and have insisted investigators first obtain a warrant.

“It’s unsettled territory,” said one U.S. law enforcement official, who spoke on the condition of anonymity because he was not authorized to speak for the record.

In a statement, Christopher Allen, a spokesman for the FBI, said the bureau advises field offices to “work closely with the relevant U.S. Attorney’s Office to adhere to the legal requirements” of their respective districts.

One of the problems is there is “scant law” addressing the issue of cell-site simulators, said Brian L. Owsley, a federal magistrate judge in the Southern District of Texas, who in June wrote a rare public ruling on the issue. He denied an application to use a StingRay, in large part because he felt the investigating agent failed to explain the technology or how it would be used to gather the target’s cellphone number.

Continue reading "Little-Known Surveillance Tool Called Stingray Raises Concerns by Judges, Privacy Activists" »

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 9, 2012

THE PUBLISHED COMPILATION HEARSAY EXCEPTION

Have you ever heard of the published compilation hearsay exception? California Evidence Code sec. 1340 says that a statement in a published compilation is admissible against a hearsay objection if the compilation is used and relied on as accurate in the course of
business.

Here, the DA got in testimony from a detective that the detective ran a cell phone number through Entersect, an online database, and the number came back to the defendant. The Court of Appeal says that the published compilation hearsay exception contemplates "an organized,
edited presentation of a finite quantity of information that, if not printed on paper, has been recorded and circulated in some fixed form analogous to printing."

There's no showing of that here. Moreover, there's that requirement that the information be relied on as "accurate." The mere fact that the police department uses the site, and pays for it, doesn't make it accurate. The C/A finds that admission of this information was error, though harmless.

People v. Franzen; 2012 DJ DAR 15281; DJ, 11/7/12; C/A 6th

August 31, 2012

DEATH PENALTY REVERSED BECAUSE OF PROSECUTORIAL MISCONDUCT-SO WHAT ELSE IS NEW

The California Supreme Court here reverses a death verdict on the basis of a Brady (373 U.S. 83) violation at the penalty phase. It seems that the defendant
claimed that he killed because the Columbian Mafia had threatened to kill the defendant and his entire family if he didn't.

It turns out that the prosecution had evidence which supported this claim but failed to turn it over. The DA actually argued at penalty that there was no evidence to support the duress claims of the defendant.

We will be watching to see if the Coudrt refers the prosecutor to the California State Bar for
prosecution. Don't hold your breath.

In re Bacigalup
o; 2012 DJ DAR 11861; DJ, 8/28/12; Cal. Supremes

Continue reading "DEATH PENALTY REVERSED BECAUSE OF PROSECUTORIAL MISCONDUCT-SO WHAT ELSE IS NEW" »

May 11, 2012

SAN DIEGO CRIMINAL DEFENSE: CALIFORNIA SUPREME COURT DECLARES NICOLE BROWN SIMPSON HEARSAY RULE UNCONSTITUTIONAL

California Evidence Code sec. 1370 (aka: the Nicole Brown Simpson hearsay exception) creates an exception to the hearsay rule for statements made by someone describing a threat or actual infliction of harm where the person is unavailable.

The California Supreme Court recognized that the videotaped interview of the witness who was unavailable for trial, which would be admissible under California Evidence Code sec. 1370, violates Crawford (541 U.S. 36) and confrontation; since it is purely testimonial.

Now, anytime a prosecutor tries to use California Evidence Code sec. 1370 for a statement made to the police, the analysis here ought to close the door.

Since the context here is a death penalty case, the California Supreme Court finds harmless
error and affirms the death verdict.

People v. Livingston; 2012 DJ DAR 5410; DJ, 4/27/12; Cal. Supremes

November 21, 2011

MULTIPLE CHILD PORN PICTURES ON MULTIPLE COMPUTERS. HOW MANY COUNTS?

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

November 15, 2011

CALIFORNIA CRIMINAL DEFENSE: DRIVING WHILE USING A CELL PHONE

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

November 8, 2011

SAN DIEGO POLICE MISCONDUCT: DELIBERATELY VIOLATING MIRANDA TO GET A CONFESSION

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" »

August 28, 2011

IMPROPER USE OF PRIOR CRIMES EVIDENCE

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

August 10, 2011

CALIFORNIA CRIMINAL LAWYER: THIRD CATEGORY OF VOLUNTARY MANSLAUGHTER-UNINTENTIONAL KILLING DURING A FELONY

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

August 8, 2011

LAW OFFICES OF MARY PREVOST: GREAT TAKING ENHANCEMENT AND COMMON SCHEME OR PLAN

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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August 5, 2011

CALIFORNIA CRIMINAL LAWYER: MANDATORY DNA COLLECTION FOR FELONY ARRESTEES IS UNCONSTITUTIONAL

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" »

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

July 28, 2011

CALIFORNIA EVIDENCE: DOG SNIFF AND JUSTIFICATION FOR SEARCHING

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

July 22, 2011

LAW OFFICES OF MARY PREVOST: LEGALITY OF A DETENTION BASED ON A PARKING INFRACTION

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

July 8, 2011

CALIFORNIA CRIMINAL LAW: KIDNAPPING REVERSED

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

July 6, 2011

LAW OFFICES OF MARY PREVOST: U.S. SUPREME CURT GRANTS CERTIORARI IN NEW EVIDENCE CASE POST BULLCOMING

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.

July 5, 2011

CALIFORNIA CRIMINAL EVIDENCE: WE HAVE THE RIGHT TO CHALLENGE BREATH TESTING

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

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