California Criminal Lawyer Blog

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

REPEATEDLY INVOKING MIRANDA FAILS TO INVOKE MIRANDA

This case is an utter outrage. What does it take to invoke Miranda? The defendant here was
asked, "Do you want an attorney here while you talk to us?" He said, "Yeah." You do? "Uh huh." You sure? "Yes." This gets "clarified" and the Supremes hold that this didn't invoke Miranda.

The defendant later said, "I want to see my attorney cause you're all bullshitting now." The Supremes: not unambiguous. The defendant was just expressing frustation. Next, the defendant said, "I don't want to talk about it." You guessed it, this is just an expression of frustration. Well, I'm pretty frustrated myself. They're going to EXECUTE this guy?! Give me a break.

I WANT MY FUCKING LAWYER. WHAT IS IT YOU DON'T GET?

People v. Williams; 2010 DJ DAR 10023; DJ, 6/30/10; Cal. Supremes

Continue reading "CALIFORNIA CRIMINAL DEFENSE: REPEATEDLY INVOKING MIRANDA ISN'T INVOKING MIRANDA " »

The victim here testified at the prelim. But she was out of state when trial was scheduled. The DA used the Uniform Act to Secure the Attendance of Witnesses to get the victim to California, but didni' have the victim arrested when she was uncooperative.

The Cal. Supremes rule that the DA doesn't have to have the victim arrested to establish the
required due diligence. The court goes on and on about how this poor victim would have been arrested. Right, ALL bench warrants for witnesses who fail to appear result in arrest.

People v. Cogswell; 2010 DJ DAR 4897; DJ, 4/2/10; Cal. Supremes

A multitude of cases were granted review last year on the Melendez-Diaz/Crawford issue. It's a hot topic. Actually, it's pretty straight forward. But it's a hot topic because it stops the prosecution from trying to convict defendant's without their ability to confront the evidence against them. And try and try and try again they will. This one stoped them in their tracks.

This California Court of Appeal ruled against the defense last year prior to Melendez-Diaz. Melendez-Diaz came out and the California Supreme Court granted
review and transferred this case back to the Court of Appeal in light of Melendez-Diaz. Take that!

Melendez-Diaz barred use of affidavits to establish that an item was contraband, as violative of Crawford and confrontation. This Court of Appeal correctly notes that the fact that evidence qualifies under a firmly-rooted hearsay exception doesn't make it an exception to confrontation. The report here that the item was meth was prepared in contemplation of its use in litigation. The Court of Appeal also rejects the AG's argument that the report here was OK because it was made contemporaneous with the test.

Finally, relying on Geier (41 Cal.App.4th 555), the AG argues that confrontation was satisfied by having the chemist's supervisor testify. Nope, says the Court of Appeal, the defense didn't get to confront the guy who DID the test. Ridiculuous. Reversed.

People v. Benitez; 2010 DJ DAR 2788; DJ, 2/25/10; C/A 4th, Div. 3

Continue reading "CALIFORNIA CRIMINAL DEFENSE: COURT OF APPEALS RULES FAVORABLY ON DEFENSE MELENDEZ-DIAZ/CRAWFORD CASE" »

RIGHT TO COUNSEL DURING INTERROGATION

It's Miranda week at the U.S. Supremes, and they hand over two losses to the defense. The first one deals with the right of the defendant to have counsel DURING questioning. The Florida police here told the defendant that he had the right to counsel BEFORE questioning, and that he had the right to use any of his rights at any time.

The U.S. Supremes assure us that this made it clear to the defendant that he had the right to counsel during questioning.

Florida v. Powell; 2010 DJ DAR 2675; DJ, 2/24/10; U.S. Supreme Court

In this recent case, the deputy district attorney was permitted to elicit the defendant's nickname, "Chucky," - the doll from the horror movie who comes to life and slashes people - and then to argue all about the horror movie.

No problem, says this California Court of Appeal. The defendant intended the nickname to be used to scare people.

But they do reject a kill zone argument. The single shot here could have hit either of two people, but the third person couldn't have been shot given the angles. The DA gets two counts of attempted murder, not three.

People v. Geovanny Leon, aka Chucky; 2010 DJ DAR 1415; DJ, 1/28/10;
C/A 2nd, Div. 6

Continue reading "CALIFORNIA CRIMINAL LAW: USING A NICKNAME FROM A HORROR MOVIE CAN GET YOU IN TROUBLE" »

BRISCOE V. VIRGINIA
Decided: 1/25/10
No. 07-11191
Full Text: http://www.supremecourtus.gov/opinions/09pdf/07-11191.pdf

CONFRONTATION CLAUSE (Signed certificates prepared by forensic analysts
are testimonial for purposes of the Confrontation Clause)

The United States Supreme Court issued a per curiam decision vacating the
judgment of the Supreme Court of Virginia and remanding the case for
further proceedings consistent with its recent opinion in Melendez-Diaz v.
Massachusetts.

Briscoe was arrested for possession of cocaine. At trial, he objected to the admission of analysis certificates used to prove that the substance he possessed was cocaine. Briscoe claimed the right to confront the forensic analysts that produced the certificates. Procedural safeguards in Virginia allow defendants to call forensic analysts as witnesses. Briscoe argued
that the safeguard did not adequately satisfy his right to confront the witnesses against him as guaranteed in the Confrontation Clause. The Supreme Court of Virginia held that it did not need to determine whether the certificates were testimonial under Crawford. Testimonial statements
subject to the Confrontation Clause will not be admissible in court unless the person who made the statement testifies in court and is subject to cross examination, or if the defense had a prior opportunity to cross examine the witness.

The Court vacated the Virginia Supreme Court decision and remanded the case for proceedings consistent with Melendez-Diaz, in which the Court held that affidavits such as forensic analysis certificates are testimonial statements under Crawford. The Confrontation Clause requires the opportunity for cross examination regarding these statements.

IS SCHOOL A PUBLIC PLACE?

California Penal Code sec. 594.1(e)(1) makes it a crime for anyone under 18 to possess an
aerosol paint container for the purpose of defacing property while in any public place. The minor here was at school. Is this a public place?

Of course not, try walking into any public school these days, you'd be stopped instantly and barred from admission. To make this defendant lose, this California Court of Appeal launches into a wacko discussion of what "public place" means, defining it, I kid you not, as "a place in which the public has an interest," and says that keeping schools free of graffiti is a matter of
public interest. Give me a break.

In re Miguel H.; 2010 DJ DAR 611; DJ, 1/14/10; C/A 2nd, Div. 7

PROVING OUT-OF-STATE PRIORS
The def.is sentence here was doubled because of an Alabama prior. For
that prior to qualify as a strike, the "face of the record" had to show
infliction of great bodily injury by the def. on someone other than an
accomplice. The C/A assures us that the document at issue here, a copy
of an original certified copy of the indictment, qualifies as face of
the record. Remember, even if a crime isnit on the PC 1192.7(c) serious
felony list, it can still be a strike prior if the "face of the record"
shows conduct thatis on the list.

People v. Skiles; 2010 DJ DAR 541; DJ, 1/13/10; C/A 4th, Div. 3

CRIMINAL THREATS

This California Court of Appeal examines a California Penal Code sec. 422 (criminal threats) case. I don't know why they expended the energy. It seems clear to me there was a criminal or terrorist threat here. But anyway, here goes:

The defendant said, "I will kill you right now," and displayed a weapon. The California Court of Appeal thinks this is enough. This is a willful threat to commit a crime that will result in
death or great bodily injury; these facts show specific intent; the threat was unequivocal, unconditional, and immediate; and the threat caused sustained, reasonable fear. Yep, I agree.

People v. Fierro; 2010 DJ DAR 525; DJ, 1/13/10; C/A 2nd, Div. 8

In Michele D. (29 C4th 600), the CalIfornia Supreme Court examined the issue of
when a young child, too young to consent, can be kidnapped. The Michele D. rule is that the amount of force required to kidnap a child is the amount of physical force necessary to take and carry the child away for a substantial distance, and for an illegal purpose or with an illegal intent. This California Court of Appeal applies the Michele D. rule to false imprisonment, PC 236.

People v. Dominguez; 2010 DJ DAR 486; DJ, 1/12/10; C/A 2nd, Div. 5

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

Continue reading "SAN DIEGO CRIMINAL ATTORNEY MARY PREVOST: FELONY EVADING, SIREN AND LIGHTS" »

This case is insanity at its worst. ere, the oficer saw the defendant driving a car with no license plates. He stopped the car and determined that the defendat was DUI, leading to a search and finding a firearm and methamphetamine. The officer was asked if he saw a temporary permit in the rear window; the officer did NOT say that there was no permit; he said he didn't remember.

Here's the incredible fact: the AG CONCEDED! We win, right? Wrong. The California Court of Appeal says that the officer saw that the car didn't have plates. They say that there was no evidence that the officer SAW a temporary permit, and they reject the contention that the officer had to make a reasonable effort to determine whether there was a permit. This is just wrong.

Remember Butler (202 Cal.App.3d 602), the case saying the police can't stop a car to determine whether tinted windows in the car are illegally tinted; they have to have PC to think that the windows were illegally tinted in order to make the stop. The California Court of Appeal says that there was no evidence that the defendant was displaying a permit, or that the ofr. saw it, so the suspicion raised by the absence of plates was not dispelled. This is totally
wrong, totally contrary to Hernandez (45 Cal.4th 294) and Butler, wrongly places the burden on the defense, and misses the point: the police need PC in order to stop in the first place!

But by far the best part of this case is that the AG conceded, so the California Court of Appeal has to make snarky comments about the contentions of ... the AG! They call their position
"facile." They complain that the AG cites no authority. You know, all the kind of language we typically see used to slam us. Sweet! And yet an outrage.

People v. Dotson; 2009 DJ DAR 16738; DJ, 12/1/09; C/A 3rd

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

The defendant was convicted of robbery, with a gang enhancement, and the substantive crime of being a member of a gang. He got concurrent time for the membership count. But Penal Code sec. 654 bars multiple sentences for a single act.

This California Court of Appeal rules that being a member of a gang isn't a crime; the crime is actively participating in a street gang by assisting in the commission of felonious conduct by the gang, meaning that there has to be a crime. So Penal Code sec. 654 is violated by punishment for both gang membership and a gang enhancement.

People v. Sanchez; 2009 DJ DAR 16464; DJ, 11/24/09; C/A 4th, Div. 2

It's amazing how everything gang members do is for the gang. Or at least the police gang "expert" will so testify.

This is the latest in a series of cases where appellate courts aren't accepting mere claims that the crime was done for the gang.

This was a carjacking. Oh sure, the police expert testified that it was for the gang. But apart from that conclusory claim, there wasn't any evidence: there was no display of gang signs or anything else. Sure, the carjacking could benefit the gang, but there was no evidence that it
actually did so. The Court of Appeal, "The gang enhancement cannot be sustained solely on defendant's status as a member of the gang and his subsequent commission of crimes." Reads like a jury instruction, no?

People v. Ochoa; 2009 DJ DAR 16454; DJ, 11/24/09; C/A 4th, Div. 2

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

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

The defendant rented a private postal box. The police went to it and asked an employee if the defendant received mail at that facility. The clerk responded by reaching into the defendant's postal box, retrieving three letters, and displaying them without opening them to the police. One showed a bill from AT&T. The police then directed a warrant for cell phones records to AT&T and got evidence of defendant's involvement in a kidnapping.

The Court of Appeal says that the 4th Amendment doesn't apply to an employee's removal of mail from a postal box at a private mail facililty because the back of the box was open and the staff had complete and unfettered access to its contents, and the police didn't search the
postal box or direct the clerk to reveal its contents. The staff has already seen and handled the mail, so there's no limitation on the staff.

People v. Reyes; 2009 DJ DAR 15589; DJ, 11/3/09; C/A 4th, Div. 3

California Penal Code sec. 653m makes it a crime to use an electronic communication device
to threaten to inflict injury or to use obscene language. The minor here texted his strong feelings about his breakup with the victim. The juvenile court found the minor a ward for violating California Penal Code sec. 653m.

The Court of Appeal says that a physical threat is required. Here, the minor threatened to
shoot half the school and himself, but never threatened harm to the victim. The California Attorney General's theory is that the defendant was threatening psychic harm to the victim by making her watch others suffer.

The California Court of Appeal rejects this claim, saying that a threat of actual injury is required. The Court of Appeal also rejects the claim that the statements were obscene. The minor used swear words, but the Court of Appeal says that they just weren't obscene, since they weren't lewd or offensive in light of prevailing notions of decency.

In re C.C.; 2009 DJ DAR 15312; DJ, 10/28/09; C/A 3rd