Criminal Appeal

When I finish my brief (probably this afternoon), I'll be back.

To Dig or Not to Dig. The transcript of the U.S. Supreme Court argument in Johnson v. California, no. 03-6539, is available. Decide for yourself whether the Court will DIG this case.

D.A. of the Week Award: Kamala Harris. As the S.F. Chronicle is reporting, Kamala Harris, is not backing down. Why does anyone expect that a D.A. who stated her moral opposition to the death penalty during the campaign would flip-flop on the basis of single case. The pressure she is getting is coming from the friends and colleagues of the slain police officer. They're not exactly unbiased. They would be excused for cause were they in the jury pool in this case.

As for DiFi, she has just one vote in San Francisco and her opinion should be given no more weight than that.

Sanders Applies to Probation Searches; Searching Officer's Knowledge Matters. People v. Bowers, no. A095890 (Cal.Ct.App. (1st Dist., Div. 3) Apr. 23, 2004).

The Cal. Supreme Court remanded this case to the court of appeal in light of People v. Sanders (2003) 31 Cal.4th 318, in which the court held that a warrantless search is not made legal by a parole search condition where the searching officer was unaware of the search condition at the time of the search. On remand in this case, the court of appeal held that the same rule applied to a probation search. In light of the reasoning of Sanders, which focused on the importance of the officer's knowledge, this should be no surprise.

Sentencing Court Abused Its Discretion In Failing To Dismiss a Three Strikes Prior Conviction Where the Two Strikes Arose from the Same Act. People v. Burgos, no. B165985 (Cal.Ct.App. (2d Dist., Div. 2) Apr. 22, 2004).

You don't see this every day.

Section 730 of the Welfare and Institutions Code authorizes a juvenile court to set a minimum period of confinement in a camp facility. In re RonnY P., no. B166593 (Cal.Ct.App. (2d Dist., Div. 5) Apr. 22, 2004).

Offer, Acceptance, and You're Out.
People v. Gipson, no. H025783 (Cal.Ct.App. (6th Dist.) Apr. 20, 2004).

Argument: Appellant argued that his 1992 plea bargain was a contract between the state and him, that the contract limited the future use of the convictions resulting from the plea bargain to those available in the Penal Code at the time of the plea bargain, and that the contract clauses of the state and federal constitutions forbid the state legislature from enacting new burdens (e.g. the Three Strikes Law) retroactively applicable to the consummated contract.

Holding: No dice.

Commentary. I know next to nothing about the contract clauses, but this creative argument is compelling as it touches upon the unfairness of new recidivist statutes increasing penalties for crimes committed long before the enactment, particularly where there was a plea bargain made based upon certain assumptions about the law. Should a reasonable defendant in 1992 have anticipated that because of his 1992 plea bargain a future offense for, as in this case, assault with a deadly weapon would result in a life term? (The argument is even more compelling for a non-serious, non-violent current offense.)

Superior Court Review of Magistrate's Orders. (Penal Code section 995.)
Case: People v. Konow, no. S111494 (Cal.Supreme Court Apr. 22, 2004).

In a unanimous decision authored by Chief Justice Ronald M. George, the California Supreme Court held:

(1) "the superior court in ruling on a motion to set aside an information under section 995 is authorized to review a prior order compelling the magistrate to reinstate the complaint, and may do so without violating the California Constitution."

(2) "the superior court may set aside an information under section 995 when the magistrate erroneously and prejudicially has failed to consider whether to dismiss a complaint in furtherance of justice under section 1385."

Government Wins Appeal But Deports Defendant Before He Can be Resentenced.
Case:U.S. v. Rivas-Gonzalez, no. 03-30167 (9th Cir. Apr. 22, 2004).

Holding: While a downward departure for cultural assimilation may be granted in extraordinary circumstances for a defendant convicted of illegal entry into the U.S., no such departure is available when the cultural assimilation arises after the illegal entry.

Panel: Andrew J. Kleinfeld, Ronald M. Gould (author), and Richard C. Tallman, Circuit Judges.

Note: The defendant has already served his sentence and been deported. The court held that the issue is, nevertheless, not moot because were the defendant to re-enter the U.S. he still would have a supervised release term to serve. Although the court remanded for resentencing, the court did not decide whether the defendant could be re-sentenced in abstentia.

Given that any reentry by the defendant in this case would likely be a new offense the government could use to incarcerate and deport the defendant again, the money spent on this appeal could have been better spent ... anywhere.

District Court Did Not Err In Applying Preponderance Standard in Denying Special Probation Under 18 U.S.C. sec 3607.
U.S. v. Gonzalez, no. 03-30256 (9th Cir. Apr. 22, 2004)

Holding: (1) Jurisdiction. District court's discretionary decision whether to grant special probationary sentence under section 18 U.S.C. § 3607 for first offenders is generally not reviewable, but question of whether the district court applied the correct standard is reviewable on appeal. (2) Evidentiary Standard for Section 3607 Showing. The court held that the district court did not err in applying preponderance standard, rejecting the defendant's argument "that the immigration consequences of his punishment made it 'extremely disproportionate,' requiring the district court to use the more stringent clear and convincing standard."

Panel: Alfred T. Goodwin, M. Margaret McKeown (author), and Raymond C. Fisher, Circuit Judges.

Listen to the oral argument. (Note: audiofiles are available for only 3 months. So this link will eventually expire.)