Criminal Appeal

Schwarzenegger Denies Clemency for Kevin Cooper

The San Francisco Chronicle is reporting that Governor Schwarzenegger has denied clemency for death row inmate Kevin Cooper, who is scheduled to be injected with lethal substances on February 10. Click here to read the governor's press release and the full text of his statement of decision.

Batson Reversal: DA Gave Meaningless Explanation for Excusing Juror

On remand from the California Supreme Court for reconsideration in light of People v. Reynoso (2003) 31 Cal.4th 903, the California Court of Appeal (1st Dist., Div. 3), reached the same result it had the first time around, and held that trial court erred in accepting the prosecutor's "meaningless explanation" for removing an African-American juror from the jury. This was per se reversible error. Here is the prosecutor's meaningless explanation:

“The first woman, her very response to your answers, and her demeanor, and not only dress but how she took her seat. I don’t know if anyone else noticed anything but it’s my experience, given the number of trials I’ve done, that that type of juror, whether it’s a personality conflict with me or what have you, but they tend to, in my opinion, disregard their duty as a juror and kind of have more of an independent thinking.”

Click here to read the unanimous opinion in People v. Allen, no. A093927, authored by Justice Stuart R. Pollak.

Amount of Restitution May be Delegated to Probation Officer

A juvenile court has authority to direct the probation officer to determine the amount of victim restitution. So said the California Court of Appeal (2d Dist., Div. 3) today in In re Karen, A., no. B164433. Justice H. Walter Croskey wrote the opinion.

Citation of Unpublished Opinions

If you're not following the debate on whether unpublished opinions should be citable, now's the time to tune in (or should I say "blog in") to How Appealing, where attorney Howard Bashman has been posting on the comments pouring into the Advisory Committee on the Federal Rules of Appellate Procedure. Proposed rule 32.1 would create a uniform rule applicable to all of the circuits and would make all unpublished opinions citable. It would be up to the individual circuits to decide whether citable opinions would be precedential.

I'm inclined to support the amendment. Because the new rule would not make all opinions precedential, the opponents' floodgate-of-opinions-to-read argument is not persuasive. And, on a rare occasion, it would be nice to be able to call an unpublished decision to the Court's attention. Unpublished opinions are already widely available, including in searchable databases.

Comments to the committee are due by Feb. 16.

Terry Stop O.K. for Terry-Crespo

In United States v. Terry-Crespo, no. 03-30085, the Ninth Circuit held today that a Terry investigative stop (Terry v. Ohio, 392 U.S. 1 (1968)) was justified by reasonable suspicion when the stop was precipitated by a 9-1-1 call by the victim. The Court emphasized that the caller was not anonymous, he called 9-1-1 instead of the direct police number, and the call evidenced first-hand information.

The Court also "affirm[ed] the district court’s 'crime of violence' enhancement under U.S.S.G. § 2K2.1(a)(4)(A) (2002)" noting that "[w]hether or not Terry-Crespo shot at an inhabited building, he created a serious potential risk of physical injury by firing his gun at a building located within Portland’s city limits."

Judge Jay S. Bybee authored the opinion.

Probation Condition License Suspension Limited to 12 Months

The California Court of Appeal (1st Dist., Div. 3) held today that a juvenile court erred in suspending a minor's driver's license indefinitely as a condition of probation, following a conviction for vehicular manslaughter. A minor's license may be suspended as a condition of probation for no more than 12 months.

Interestingly, the Court reached the merits of the claims despite the fact that it was not raised in the trial court, noting that the issue presented a pure question of law:

we do not happily intervene when neither side brought the position it asserts on appeal to the attention of the trial court. Nonetheless, the issue presented is a pure question of law and implicates an explicit legislative directive nullifying the order that has been entered, so that appellate review remains appropriate. (In re Justin S. [(2001) 93 Cal.App.4th 811, 814-815.)

Justice Stuart R. Pollak authored the opinion in In re Colleen S., no. A100590

Upon Resentencing After 1170(d) Recall of Sentence, No Presentence Credits for Time Served After Original Sentencing

In one of today's two California Supreme Court unanimous opinions authored by Justice Ming Chin, the Court held that, "because a trial court’s recall sentence [under Penal Code section 1170(d)] did not change defendant’s postsentence status for purposes of determining conduct credits, he is not entitled to presentence conduct credits under section 4019 for time served between the original sentencing and resentencing, even while temporarily confined in local custody to attend the resentencing hearing." People v. Johnson, no. S113803.

DA May Re-Try Strike Allegation After Appellate Court Reverses for Insufficient Evidence (Cal.Sup.Ct.)

In a unanimous opinion authored by Justice Ming Chin, the California Supreme Court held, today, that retrial of a prior conviction allegation under the Three Strikes Law is permissible where a trier of fact finds the allegation to be true, but an appellate court reverses that finding for insufficient evidence. People v. Barragan, no. S105734

Review Grant - Knock/Notice Standing

The California Supreme Court granted review today in People v. Rabadeux, no. S121159, in which the Court of Appeal (Third Distirct) held that defendant who was not at home at the time of the search cannot complain of any knock-notice violation. The Third District acknowledged that its decision was in conflict with a year 2000 opinion from the same court in People v. Hoag, 83 Cal.App.4th 1198, 1203 (2000). Click here to read the Third District's published opinion in Rabadeux. Click here to see the Supreme Court docket in Rabadeux.

PROTECT Act De Novo Review of Departures Applies to Cases on Appeal as of April 30, 2003

In reviewing a federal Clean Water Act (CWA) conviction, the Ninth Circuit held today that under the CWA, which penalizes discharges into navigable waters, the term "navigable waters" includes tributaries. The Court adopted an Army Corps of Engineers definition of "navigable waters" which includes, get this, "non-navigable waters":

The Army Corps of Engineers has long interpreted “navigable waters” in the CWA “to include not only actually navigable waters but also tributaries of such waters, interstate waters and their tributaries, and nonnavigable intrastate waters whose use or misuse could affect inter-state commerce.”

Go figure.

The government fared much better in its cross-appeal, obtaining reversal on four grounds: (1) the district court erred in failing to include CERCLA cleanup costs in the guideline calculation; (2) the district court erred in applying a materiality element to an obstruction of justice (attempt to influence a witness) enhancement under USSG sec. 3C1.1; (3) the district court erred in relying on a prior state prosecution in granting a downward departure; and (4) the EPA's site investigation costs are recoverable through restitution. In reviewing the deparutre, the Court held that the PROTECT Act de novo standard of review applies to cases pending on appeal at the time the Act became law.

Judge Thomas Nelson authored the Court's opinion in U.S. v. Phillips, no. 02-30035.

Footnote count: 84 in this opinion. Didn't read them all.