Criminal Appeal

First California Blakely Reversal! Unpublished! Follows Wende (No Issue) Brief! People v. Perry, no. A104398 (Cal.Ct.App. (1st Dist., Div.2) Aug. 31, 2004).

Right to a jury trial on non-recidivicst aggravating factors used to impose upper terms.

Harmless error evaluated under Chapman.

With 4 current offense aggravators, and one recidivist aggravator, error is not harmless.

Interesting mulling about whether one recidivist-based factor falls under Almendarez-Torres: "that defendant’s prior convictions are numerous and of increasing seriousness."

It is not clear whether this factor is a “fact of a prior conviction” which need not be submitted to the jury (see People v. Thomas (2001) 91 Cal.App.4th 212, 216-223) or whether it involves a sufficiently subjective analysis so as to require a jury finding under Blakely.

Not sure why unpublished.

AG will surely seek rehearing.

If Cal. Supreme Court follows this approach, and it should, reversals are likely in many other cases.

Obstruction Adjustment for Perjury Conviction Improper Where Perjury Was Committed in Separate Civil Proceedings; Convictions Affirmed. U.S. v. Degeorge, no. 02-50365 (9th Cir., Aug. 30, 2004).

Obstruction Enhancement: The court remanded for resentencing because the trial court erred in imposing two-level upper adjustment for obstruction for perjury conviction, under USSG sec. 3C1.1. The adjustment does not apply where the perjury was committed in a separate civil case.

The appellant challenged the convictions on numerous grounds, including ...

Pre-indictment Delay. No presumption of prejudice from delay results from fact that statute of limitations would have run but for extension of the SOL by a district court judge under 18 USC 3292. No actual prejudice established.

Statutory Tolling By District Court Judge Under section 3292: The court rejected the appellant's argument that "a district court may issue an order under § 3292 suspending the statute of limitations only if the government is seeking evidence that 1) is not already in its possession and 2) is “material or otherwise essential” to the charges." The court also rejected appellant's argument, based on 3292's statement “the district court before which a grand jury is impaneled to investigate the offense” may toll the SOL, that no tolling is permitted unless the grand jury is actively investigating the offense and evidence has been presented to the grand jury.

Panel: D.W. Nelson, John R. Gibson (8th Cir.) (author), Graber

Chapman Applies to Erroneous Burden of Proof Instruction at Competency to Stand Trial Hearing; State Can Challenge Unauthorized Sentence In Defendant's Appeal. People v. Johnwell, no. F041899 (Cal.Ct.App. (4th Dist.), Aug. 30, 2004).

Competency Proceedings.

Error. Court erred in giving modified version of CALJIC No. 2.01 (sufficiency of circumstantial evidence – generally), at competency trial. The court agreed this was error because it raised the defendant's burden above the preponderance standard:

By adding its modified version of CALJIC No. 2.01, however, the trial court effectively placed on defendant the burden not only of producing evidence of his incompetence that was more convincing than not, but also the additional burden of disproving every rational conclusion and reasonable interpretation of the evidence except that which pointed to incompetence. That burden conflicts with, and is higher than, the preponderance standard dictated by California’s competency scheme (§ 1369, subd. (f)) and sanctioned by the United States Supreme Court (Medina v. California, supra, 505 U.S. at pp. 446-453). Accordingly, and considering the instructions as a whole (see People v. Smithey (1999) 20 Cal.4th 936, 963), the giving of the modified version of CALJIC No. 2.01 at defendant’s competency trial constituted error.

Prejudice. Although the right to a jury trial on competency is a state statutory right only (i.e. no constitutional right), the error, nevertheless is reviewed for prejudice under standard for constitutional error (Chapman) because the error affects the constitutional right not to be tried when incompetent.
Relief: If, upon remand, a doubt arises as to his present competence to stand trial, the trial court shall proceed as set out in section 1368 et seq. If no such doubt arises or upon such time as defendant is found competent to stand trial, and assuming the People elect to retry him, a new trial on the issue of guilt shall be held.
Sentencing Error
State can challenge unauthorized sentence in defendant's appeal, without separately appealing. Striking of special circumstance finding was unauthorized.

Cal. Supremes: Forgetting To Register is Willful Failure to Register. People v. Barker, no. S115438 (Cal.SupremeCourt, Aug. 30, 2004).

Justice Brown, writing for the six-judge majority, saw some "superficial" appeal to the argument that forgetting to register is not a willful failure to register, but concluded the legislature did not intend that result:

Admittedly, the argument that a person cannot be said to know something if he or she has forgotten it, for whatever reason, does have a superficial plausibility. However, we agree with Cox and the majority below: It is simply inconceivable the Legislature intended just forgetting to be a sufficient excuse for failing to comply with section 290’s registration requirements.

The majority left one out: "we express no opinion as to whether the instruction would be erroneous where a defendant’s forgetfulness allegedly arose from an acute psychological condition, or a chronic deficit of memory or intelligence."

Justice Kennard dissented.

Confession Voluntary; Expert Testimony on Interrogation Properly Excluded; Intent Evidence Sufficient; Remanded for Resentencing. People v. Ramos, no. B166003 (Cal.Ct.App. (2d Dist., Div. 3) Aug. 27, 2004).

1. Confession Voluntary. The court found the defendant's confession was not the product of an improper promise of leniency. Trial court properly credited officer's version of interrogation in which officer told defendant his cooperation would benefit him in the judicial process and that he would present the fact of the defendant's cooperation to the district attorney for consideration. The court of appeal found that it was proper for the trial court to reject the defense version (which was supported by a police report) that included only the promise of leniency, without any mention of the district attorney's role.

2. No error in exclusion of expert testimony on police interrogation:

[the officer] did not misrepresent the state of the evidence to Ramos, did not subject him to a polygraph examination and did not question him repeatedly over an extended period of time. Thus, as the trial court concluded, the defense failed to demonstrate the need for [Dr.] Leo’s expert testimony. Moreover, the trial court expressly indicated its ruling was tentative and that it would revisit the issue if the evidence adduced at trial suggested Leo’s expert testimony was relevant. Because the jury could understand and evaluate all the evidence presented at Ramos’s trial without the assistance of an expert on police interrogation, we find no abuse of discretion in the trial court’s order excluding Leo’s testimony.

3. Evidence of Intent to Kill Sufficient. Intent to kill element of attempted murder satisfied by evidence that appellant was a gang member, came to party armed with other armed gang members, parked around the corner from the party, ran to front yard when he heard fellow gang member had been in a fight, pulled his gun, aimed it car full of rival gang members, and fired. In finding the evidence sufficient, the court also relied upon expert gang testimony.

4. Minimum Parole Eligibility Term. On Count 1, court imposed life with possibility of parole for attempted murder, plus 10 years and 15 years, respectively, for gun and gang enhancements. This was error, as sentenced should have been a life term with a minimum term of 15 years prior to parole eligibility: "the criminal street gang enhancement found at section 186.22, subdivision (b)(5), requires service of a 15-year term before parole eligibility, not a 15- year enhancement."

5. Consecutive Indeterminate Term Served In Full. On second count of attempted premeditated murder, court imposed life term and enhancements of 1/3 of the 10-year gun enhancement and 1/3 of the 15-year gang enhancement. This was error: "section 1170.1, subdivision (a), which directs that a consecutive subordinate term shall consist of one-third the middle term or one-third of the term imposed for an enhancement, does not apply to indeterminate sentences."

Special Cir. & Death Sentence Reversed; Failure to Instruct on Intent to Kill for Felony-Murder Sepcial Circumstance. (Offense Committed in "Carlos/Anderson Window Period.'") People v. Haley, no. S007531 (Cal.Supreme Court, Aug. 26, 2004).

In Carlos v. Superior Court (1983) 35 Cal.3d 131 (Carlos), we held that even when the defendant is the actual killer, intent to kill is an element of the felony-murder special circumstance. While this aspect of Carlos was overruled in People v. Anderson (1987) 43 Cal.3d 1104 (Anderson), we subsequently held that “[c]ases involving the felony-murder special circumstance committed after Carlos but before Anderson . . . must apply the intent-to-kill requirement.” (People v. Wharton (1991) 53 Cal.3d 522, 586, fn. 16.) The murder in the present case occurred in the Carlos/Anderson “window period.” Because the trial court’s failure to instruct the jury on the intent-to-kill requirement was not harmless beyond a reasonable doubt, we affirm the conviction for first degree felony murder and the underlying felonies, but reverse the special circumstance findings and resulting death sentence.

Justice Moreno authored this unanimous opinion.

Trial Court Abused Its Discretion in Dismissing Indictment Under Cal.Pen. Code sec. 1385. People v. Thorbourn, no. B168276 (Cal.Ct.App. 2d Dist., Div. 8, Aug. 24, 2004).

This was, by the way, a defeat for trial lawyers Geragos & Geragos.

Mistake of Fact re: Age May be Defense Against Providing Alcohol to Minor Charge. In re Jennings, no. S115009 (Cal. Supreme Court, Aug. 23, 2004).

In prosecution for purchase of alcoholic beverage for someone under 21 years old who, after drinking, proximately causes death or great bodily injury (Cal. B & Prof. Code section 25658(c)), proseuction need not prove knowledge of age, but defendant can defend against the charge by claiming a mistake of fact as to age:

(1) Section 25658(c) is not limited to the shoulder tap scenario, but applies whenever an offender purchases alcoholic beverages for an underage person; (2) section 25658(c) does not apply in the typical social party host situation, because the host does not purchase alcohol for any particular guest; (3) the prosecution need not prove an offender knew (or should have known) the age of the person to whom he or she furnished alcohol in order to prove a violation of section 25658(a); (4) the prosecution need not prove an offender knew (or should have known) the age of the person for whom he or she purchased alcohol in order to prove a violation of section 25658(c); and (5) a person charged with violating section 25658(c) may defend against the charge by claiming an honest and reasonable belief that the person for whom he or she purchased alcohol was 21 years of age or older. The defendant bears the burden of proof for this affirmative defense.

This unanimous opinion was authored by Justice Werdeger.

Failure to Raise Claim---Even Fundamental Constitutional Claim---at Trial Precludes State Court Habeas Review. In re Seaton, no. S067491 (Cal.Supreme Court, Aug. 23, 2004).

The Court summarized related habeas cognizability rules:

Waltreus rule (In re Waltreus (1965) 62 Cal.2d 218, 225): "precludes a habeas corpus petitioner from raising a claim that was raised and rejected on appeal."

Dixon rule (In re Dixon (1953) 41 Cal.2d 756, 759): "bars a habeas corpus petitioner from raising a claim that was not, but should have been, raised on appeal."

Harris: In re Harris (1993) 5 Cal.4th 813, 834: " neither rule [Waltreus & Dixon] bars a claim of constitutional error that is 'clear and fundamental, and strikes at the heart of the trial process.' (Harris, supra, 5 Cal.4th at p. 834.) Harris does indeed allow a convicted defendant to file a habeas corpus petition raising claims of fundamental constitutional error even when those claims were previously rejected on appeal, or when the defendant did not, but should have, raised them on appeal."

Now, the Seaton Rule: "But Harris said nothing about allowing a defendant to raise such claims in a habeas corpus proceeding when no objection was made at trial." Claims---even fundamental constitutional error---not raised at trial cannot be raised in state habeas proceedings.

The court reasoned that to permit raising such claims on habeas would defeat the general forfeiture barring appellate review of claims not raised. The court also explained that IAC claims are the recourse for such forfeitures, and that the announced rule would not bar a Brady claim.

Note: the court did not address whether this procedural rule would bar a state habeas court from considering a claim of lack of fundamental jurisdiction.

Justice Kennard authored the 5-judge majority opinion. Justice Werdeger concurred, contending there was no reason to announce that the new procedural bar applied to fundamental constitutional claims because the petitioners claims did not meet that standard.

Justice Brown dissented, describing the new rule as putting "form-over-substance," and adhering to her view that addressing the claims on the merits---which the court's ultimately does anyway, at least internally---makes more sense than a Byzantine system of procedural bars:

I have previously expressed my view that “creating a Byzantine system of procedural hurdles, each riddled with exceptions and fact-intensive qualifications, only undermines . . . the goals they purport to serve: integrity of judgments, finality, and comity.” (In re Gallego (1998) 18 Cal.4th 825, 842 (conc. & dis. opn. of Brown, J.); see also In re Sanders (1999) 21 Cal.4th 697, 730 (conc. & dis. opn. of Brown, J.).) Since, at least in the capital context, the court’s internal practice generally ensures full merit review irrespective of procedural bars (see Gallego, at p. 852 (conc. & dis. opn. of Brown, J.)), consideration of possible defaults can only delay finality and invite disregard in the federal courts given the difficulty in determining whether we invoke them with sufficient regularity. (See id. at pp. 843-845 (conc. & dis. opn. of Brown, J.).)

New Phone Number for Telephonic Extensions for 9th Cir. Briefs in Central District Cal. Cases: "Effective September 1, 2004, 9th Circuit R. 31-2.2(a) telephonic extensions of time to file briefs for appeals originating from the Central District of California will be administered by the court's Pasadena office. The designated telephone number for such requests is 626/229-7261."