California Criminal Lawyer Blog

The 9th circuit here strikes down a 3-Strikes sentence as being in violation of the cruel and unusual punishment clause!

The crime here is failure of a registered sex offender to re-register within 5 days of his birthday. The court stresses that the defendant had been registering, hadn't moved, and the police knew where he was all the time. They evaluate the crime as pretty minimal.

The defendant has many serious violent and sex offenses, but they say that nothing about THIS crime shows any recidivist tendencies. Thus, they conclude that 28 years to life
violates the cruel and unusual clause.

AND THAT, MY FRIENDS, IS A GREAT START!

Gonzalez v. Duncan; 2008 DJ DAR ; DJ, 12/ /08; 9th Cir. Fed C/A
http://www.tinyurl.com/7ohl4n

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Posted In: California Cases , Federal Cases , Sentencing

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DISCRETIONARY FINDING RESULTING IN SEX OFFENDER REGISTRATION MUST BE
MADE BY A JURY

We actually FINALLY win an Apprendi (530 U.S. 466) issue. The jury acquitted this defendant of the only sexual offense charged against him. But the court made a finding that on the offenses where the defendant was convicted, he committed them for purposes of sexual gratification, permitting the discretionary order of sex registration under PC 290.

Apprendi says that any fact that increases the "penalty" for a crime must be found by a jury or admitted by the defendant. Does a finding that offenses were committed for sexual gratification, resulting in the Jessica's Law residency restriction, increase the penalty for the crime?

This Court of Appeal says yes. They do an extensive analysis about why the Jessica's Law
residency requirement is punitive and conclude that the necessary finding can't just be made by the judge.

Great case, which I suspect the Supremes won't let stand.

People v. Mosley; 2008 DJ DAR 17178; DJ, 11/21/08; C/A 4th

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Posted In: California Cases , Evidence , Sentencing

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The court used the same prior conviction to impose upper term and to impose an extra year under PC 667.5(b). What about the rule barring the use of a single fact twice? The DA's theory is that the upper term is based on the fact of the conviction, while the 667.5(b) year is based on
the fact that the def. served time in prison.

The Court of Appeal cites the cases which have already settled this issue. (e.g., Jones, 5 Cal.4th 1142), and concludes that the court can't do this.

People v. McFearson; 2008 DJ DAR 17096; DJ, 11/20/08; C/A 5th

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The U.S. Supreme Court this week heard argument on a case presenting the question of whether Apprendi (530 U.S. 466) applies to consecutive sentences.

In Cunningham (549 U.S. 270), the U.S. Supremes held that
Apprendi applies to California's upper term scheme. So can a judge impose a consecutive sentence based on facts not found by a jury or admitted by the defendant?

It looks like, from a review of all the pundits on the subject, that we will win this one. However, the California Supremes will also claim that somehow this doesn't apply in California, so we
won't get the benefit of this, until we get back to DC. Incidentally, check out (and subscribe to) the SCOTUS blog, a fabulous resource for U.S. Supreme Court stuff like this.

Oregon v. Ice; http://www.scotusblog.com/wp/

Continue reading "SAN DIEGO CRIMINAL DEFENSE: CONSECUTIVE SENTENCING AND APPRENDI" »

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In this case, the defendant possessed heroin and methamphetamine in his motel room. The DA charged and got convictions for two counts of drug possession for sale, and two counts of conspiracy to possess those drugs for sale (there was another guy involved).

The Court of Appeal says that a defendant can be convicted on only one count of conspiracy to possess drugs for sale, no matter how many kinds of drugs he has. Moreover, they rule that the defendant can't be sentenced for both possession for sale and conspiracy to possess the same drugs for sale.

You would think this is a no-brainer, but this defendant has strike priors, so Penal Code sec. 667(c)(6) applies. That section makes it mandatory to impose consecutive sentences for felonies not committed on the same occasion and not arising from the same set of operative facts.

The Court of Appeals holds that conspiracy doesn't end at the commission of the first overt act but is continuing, so the conspiracy and the possession for sale did arise from the same set of operative facts. Thus, 667(c)(6) doesn't require consec. sentences.

People v. Briones; 2008 DJ DAR 15641; DJ, 10/13/08; C/A 2nd, Div. 6

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FAILURE TO ADVISE ON IMMIGRATION CONSEQUENCES DURING THE PLEA

Penal Code sec. 1016.5 requires trial courts to advise defendants during the taking of a plea about possible immigration consequences. A failure to so advise requires the court to set the plea aside, on a showing that the defendant faces adverse immigration consequences and that prejudice resulted from the non-advisement.

In this case, the defendant was advised of immigration consequences at arraignment, but not during the plea several weeks later. The Court of Appeal says that the 1016.5 advisement must
be during the plea itself, not just on some other date.

The case is reversed and remanded to determine whether the defendant can show prejudice.

People v. Akhile; 2008 DJ DAR 15654; DJ, 10/13/08; C/A 1st

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In Hofsheier (37 Cal.4th 1185), the California Supreme Court held that mandatory sex offender registration under PC 290 for consensual oral copulation with a minor 16 or 17 violated equal protection, because consensual sexual intercourse with such a minor didn’t trigger mandatory registration.

This Court of Appeal applies Hofsheier to hold that mandatory registration for Penal Code 288a(b)(2), consensual oral copulation with a 14-year old, also violates equal protection.

People v. Hernandez; 2008 DJ DAR 13935; DJ, 9/4/08; C/A 2nd, Div. 2

Continue reading "NO MANDATORY SEX REGISTRATION FOR CONSENSUAL ORAL SEX WITH A 14-YEAR OLD" »

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HARMLESS CUNNINGHAM ERROR

The court imposed upper term based on the victims being particularly vulnerable, but the defendant didn’t admit that nor did the jury find that fact. And so the sentencing must be reversed as a violation of Cunningham (549 U.S. 270), right?

Nope. They find harmless error: a jury would have found that the victims were particularly vulnerable. Hey, just deny the defendant a jury trial on everything and then affirm by finding that any jury would have convicted anyway.

Why do we bother with these troublesome juries?

People v. Esquibel; 2008 DJ DAR 13876; DJ, 9/3/08; C/A 2nd, Div. 8

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