Criminal Appeal

En Banc Questions Presented Rendered Vague.  On Feb. 16, I reported on the questions presented in two en banc ninth circuit death penalty case. The Court had described the question in both cases as "Does Ring v. Arizona, 536 U.S. 584 (2002), apply to pending habeas corpus cases?" As I noted, that question had, with a couple caveats, been mostly answered by the supremes in Schriro v. Summerlin, 124 S.Ct. 2519 (2004).

Well, the most recent update to the pending en banc cases list deletes the Ring retroactivity issue and describes each case as a "Death penalty habeas corpus appeal."

As noted on the pending en banc case list, "When a case is heard or reheard en banc, the en banc court assumes jurisdiction over the entire case, see 28 U.S.C. § 46(c), regardless of the issue or issues that may have caused any member of the Court to vote to hear the case en banc. Summerlin v. Stewart, 309 F.3d 1193 (9th Cir. 2002)."

This Week's Cal. Supreme Court Review Grants:

People v. Calhoun, no. S129896:

"Was defendant subject to an enhancement under Vehicle Code section 2001, subdivision (c), for fleeing the scene after 'committing' the offense of gross vehicular manslaughter although he was convicted of that crime as an aider and abettor?"

Read the court of appeal (4th Dist., Div. 1) opinion here.

People v. Thompson, no. S130174:

"Was suppression of blood-alcohol evidence warranted when police, responding to a citizen's fresh complaint of drunk driving, entered defendant's house without a warrant to effect a misdemeanor arrest?"

Read the court of appeal (2d Dist., Div. 6) opinion here.

People v. Wilson, no. S130157: 

"May a DNA expert testify to a match between the perpetrator's and defendant's genetic profiles based on different racial databases if the prosecution has not first provided independent evidence of the perpetrator's race?"

Read the court of appeal (1st Dist., Div. 3) opinion here.

Of course, the Court also granted review in several cases with deffered briefing pending  and BlackTowne.

Does Ring v. Arizona, 536 U.S. 584 (2002), apply to pending habeas corpus cases? That, according to the Ninth Circuit Status of Pending En Banc Cases, appears to be the question to be argued before an en banc panel on March 24, 2005 in  Summerlin v. Schriro, 98-99002. Of course, last summer, in Schriro v. Summerlin, 124 S.Ct. 2519 (2004), the U.S. Supreme Court held that "Ring announced a new procedural rule that does not apply retroactively to cases already final on direct review." Could there be an aspect of Ring not controlled by the Supreme Court's opinion? I suppose it could be an argument that Ring was not actually a new rule, but that probably wouldn't help in a case that was also final prior to Apprendi. Or, perhaps, the question is whether the Supreme Court's decision was limited to the right-to-a-jury rule, and is not controlling on the question of whether the burden-of-proof right applies retroactivity to cases final on direct review. Any thoughts out there?

The same issue is also presented in another case in which the Court just granted en banc review: Landrigan v. Stewart, no. 00-99011. In 2001, the original three-judge panel (Fernandez (author), Rymer, & Wardlaw) affirmed the denial of habeas relief, noting that the primary issue was ineffective representation at the penalty phase.  (Note: because the federal petition was filed after 4/24/96, the highly deferential AEDPA standard of review was applied.) The three-judge panel essentially decided the case on prejudice grounds. Putting great emphasis on the defendant's express wish that no mitigation evidence be presented, except genetic predisposition evidence, and noting the defendant's prior murder, prior stabbing of another inmate, and escape from prison, the Court concluded that genetic predisposition evidence would not have changed the result. The panel, prior to Ring, also rejected an Apprendi claim.

Cal. Judicial Council to Meet on Friday: Court Reporters and Reporter's Transcripts on the Agenda. The 195-page (including appendices) Final Report of the Reporting of the Record Task Force is on the agenda for Friday's Judicial Council Meeting.

The recommendations are broad and some are positive, but there's still a way to go.  Appellate attorneys should have had electronic transcripts (with the option of printing them) in every case long ago.  I'm not even talking about electronic reporting, which doesn't really seem to be on the table -- although it should be (read the comments and responses and you'll see that the court reporters still have great influence). Just having a searchable and portable electronic copy of the transcript would make a huge difference.

There are Recommended Format Specifications which will standardize the appearance of all transcripts in California: 14 pt. Ariel and, among my favorite formatting changes, ALLCAPS is on it's way out.

There is also a recommendation for a "a secure Web-based system that will deliver, maintain, and store electronic transcripts, master index volumes, and reporters’ notes."

Ninth Circuit February Motions & Screening Panel: Fernandez, Graber, and Gould.

This Week at the Cal. Supreme Court. As it is argument week, the California Supreme Court did not grant review in any cases this week.

The Court heard argument in several cases on Tuesday, including People v. Thomas, S118052, which presents this question: when the d.a. prosecutes a juvenile in adult court, "and the juvenile is convicted of an offense listed in Welfare and Institutions Code section 1732.6(b), does a trial court have the authority to order a juvenile disposition other than a commitment to the California Youth Authority?"

You can read descriptions of the other cases argued this week on the calendar.

The Court has also issued its oral argument calendar for March, when argument will be heard in San Francisco. There are a couple of interesting homicide cases on that calendar, including People v. Randle, which presents the question of whether the non-statutory offense of second-degree felony murder survives in California.

"I think there is more momentum now." According to a Recorder story (subscription required), that's what Chief Judge Mary Schroeder says about republican house memebers' renewed efforts to split the Ninth Circuit. The republicans again plan to tie new judgeships to splitting the Ninth Circuit, which will pit opponents of the split against other circuits which desparately need more judges.

But there should be no dialogue about splitting the circuit as long as the motivation is opposition to the legal decisions the court reaches, as it is for Congressman Randy "Duke" Cunningham of San Diego County, whose spokesperson "said her boss's vote was intended to 'send a message' to Ninth Circuit judges that he doesn't like the way they've decided some cases."

Ninth Circuit Applies Booker: U.S. v. Ameline

You can find analysis: here (FPD) and here (Sentencing Law & Policy).

The Recorder has a story on Ameline today (subscription required).

Man Charged With Accessing Publicly Available Information on Internet. Several weeks ago I posted on the new law that makes it a misdemeanor for a sex offender registrant to access the publicly available information on California's Megan's Law Web site. Well, we now have our first prosecution. According to a recent S.F. Chronicle article, a registrant has been charged with illegally accessing the site.  The defendant is alleged to have used the site to find dates, writing letters to several of the registrants pictured on the site. One of the recipients reported the letters to the police. This use of the site doesn't paint a sympathetic picture for a test case, certainly less sympathetic than a registrant---worried about his own kids---who uses the site to check for other pedophiles in the neighborhood.

Review Granted: Dismissal of Information for Failure to Grant O.R. to Defendant When 10-Day Period to Hold Preliminary Hearing Was Extended. People v. Standish, Cal. Supreme Court no. S129755.

Here's a summary of the issue and holding from the Court of Appeal opinion:

Penal Code section 859b requires that a criminal defendant’s preliminary examination be held within 10 court days from the time of arraignment or plea, if the defendant is in custody. The 10-day period may be extended for good cause, but the defendant must be granted a conditional release on his or her own recognizance (O.R.) pending the hearing. Respondent Jared Jacob Standish’s preliminary hearing was extended past the 10-court-day period, but his request to be released on his own recognizance was denied. Subsequently, upon Standish’s pre-trial motion, pursuant to section 995 the superior court set aside an information charging him with various offenses, on the ground section 859b had been violated. Plaintiff and appellant the People of the State of California appeal the superior court’s order. We conclude the failure to grant Standish the statutorily-mandated O.R. release denied his substantial rights, entitling him to relief under section 995. We therefore affirm the trial court’s order.