Criminal Appeal

Last Supreme Court Habeas Decision of the Year on Monday. In addition to the 10 Commandments, Grokster, and wild speculation about resignations, Monday will also bring a decision in one more habeas case: Bell v. Thompson, no. 04-514. Again, procedural issues dominate. The case presents the question of whether the Sixth Circuit had the authority to vacate its decision affirming the denial of the writ after it had denied rehearing, cert had been denied, and after the mandate should have issued:

Did the Sixth Circuit abuse its discretion by withdrawing its opinion affirming the denial of habeas corpus relief six months after Fed. R. App. P. 41(d)(2)(D) made issuance of the mandate mandatory, without notice to the parties or any finding that the court's action was necessary to prevent a miscarriage of justice, particularly where state judicial proceedings to enforce the inmate's death sentence had progressed in reliance upon the finality of the judgment in the federal habeas proceedings?

• Briefs
• Sixth Circuit Opinion
• Question Presented

Justice Brown to Step Down June 30. According to a Cal. Judicial Council press release issued yesterday, Janice Rogers Brown "informed Governor Arnold Schwarzenegger in a letter last Friday, June 17, that her final day on the state’s high court will be Thursday, June 30, 2005." June 30 would be the last day of the state's fiscal year.

And here's the official word on what happens in her absence:

Following Justice Brown’s departure from the state Supreme Court, the high court will continue to perform its work with its remaining six regular members until a new justice is appointed by the Governor and confirmed by the Commission on Judicial Appointments.

The Supreme Court may act in any case with the concurrence of four justices. In cases in which oral argument has already been heard, an opinion may be filed with less than a seven-member court so long as four justices concur in the result.

Any written opinions filed by the Supreme Court before June 30, 2005, will bear the name of Justice Brown as a participant. Any opinions filed after that date will not bear her name as a participant.

If additional oral arguments are heard before a new Supreme Court justice is appointed and confirmed, a Court of Appeal justice will be assigned temporarily to participate in each case, pursuant to the court’s established rotational assignment policy.

I wonder if we will see more than the typical two opinions issued on each of the  three opinion days remaining while Justice Brown is still on the Court: June 23, June 27, June 30.

By the way, the Court does not hear argument in July or August, so it won't be until the September calendar that we will see Chief Judge George assigning Court of Appeal justices to sit on cases.

Black.

The opinion: here (after it is archived 120 days from now, look for it here).

Flaws:

• The Court concluded that the U.S. Supreme Court opinions in Apprendi, Blakely and Booker "do not draw a bright line." This is contrary to the widely accepted understanding of those decisions.

• The majority misuses the Booker-remedy reasonableness appellate standard-of-review to establish the constitutionality of the California scheme. The court recongized the mandatory language of section 1170(b) of the Penal Code which forbids an upper term sentence in the absence of aggravating factors, but concluded that the function of that requirement is only to make sure the sentence is reasonable: "Because an aggravating factor under California law may include any factor that the judge reasonably deems to be relevant, the determinate sentencing law’s requirement that an upper term sentence be imposed only if an aggravating factor exists is comparable to Booker’s requirement that a federal judge’s sentencing decision not be unreasonable." This fails to consider that it was the reformation of the statutes that made the new (post-Booker) federal scheme constitutional, not the reasonableness SOR.
• Discretion. The Court concluded that California judges have more discretion in selecting from among the three possible terms than a Washington judge does in imposing an "exceptional sentence"  or than a federal judge did under the guidelines. Again, this consideration moves away from the bright line rule.

Commentary & News:

The Recorder: "Court Affirms State Guidelines On Sentencing" (subscription required).

Sentencing Law and Commentary:

Initial report "California Supreme Court dodges Blakely" (be sure to read comments by several California Appellate Practitioners).

Follow-up "Booker strikes again (aka Back in Black)" (be sure to read full quote from Blakely's attorney, Jeffrey Fisher ("it looks like the Cal SCt majority has adopted all of the arguments the State and the SG made in Blakely . . . and that the Court rejected!")

Appellate Law & Practice: Gene Vorobyov has this post.

Blakely As Applied to California's Determinate Sentencing Law: People v. Black, no. S126182.

Wild Guesses on People v. Black Main Opinion Author.  People v. Black, the Cal. Supreme Court's Blakely decision will be filed at 10 a.m. today. I have a couple of wild guesses on authors:

Justice Moreno: As the only former federal judge on the court and, thus, the only one with firsthand knowledge of the federal sentencing guidelines, who better to understand and explain any comparison to the guidelines (i.e. Booker/Fanfan)?

Justice Brown: The court, unusually for a case of this significance and complexity, is issuing the opinion a couple weeks before the 90 day deadline. Could this be because Justice Brown is an author and she hopes to resign shortly to take her D.C. Circuit seat?

Chief Justice George: There's always a possibility Chief Justice George will author the opinion to demonstrate the importance of the case and the court's cohesiveness.

A post with a link to that opinion will appear above at 10 a.m.

Proposed Ninth Circuit Rule Changes. According to a notice issued last week, comments on proposed rule changes are due July 18, 2005. The changes relate to preliminary injunction appeals, change of counsel in criminal appeals, notice of court reporter default, and oppositions to requests for attorney fee in civil appeals.

The changes to the rule governing substitution of counsel would eliminate the requirement of the client's written consent for substitution of appointed counsel:

Purpose of Amendment: To clarify and streamline the procedures for counsel in criminal appeals to withdraw. The amendment deletes the requirement that appointed counsel seeking to be relieved obtain written consent from the client; that requirement has proven to be burdensome to counsel and the client and unhelpful to the court. Counsel is, however, required to serve the client with any motion to withdraw, so the court can be assured the client is aware of the motion.

The change to  rule 11-1.2 regarding court reporter defaults would add a duty on counsel to contact the court reporter in an effort to get the transcripts completed:

Prior to submitting any notice, appellant shall contact the court reporter and court reporter supervisor in an effort to cause preparation of the transcripts. The notice shall be accompanied by an affidavit or declaration that describes the contacts appellant has made with the reporter and the supervisor. A copy of the notice and affidavit/declaration shall be served on the court reporter supervisor.

IAC on Direct Appeal (And "Fuck You, I Want to Talk to My Lawyer" is Not an Adoptive Admission).  This is something you don't see too much: earlier this month the California Court of Appeal (6th Dist.) reversed a conviction on the ground of ineffective representation. What's even more unusual, it was done on direct appeal. (People v. Lopez, no. H026476.) 

Here we will determine, among other things, that defense counsel should have objected to evidence that each of the four defense witnesses had been arrested and that three of them had committed misdemeanor batteries and that defendant’s invocation of his right to counsel, however colloquially phrased (“Fuck you. I want to talk to my lawyer”), should not have been construed as an adoptive admission.

California caselaw, like other jurisdictions, allows a court of appeal to find IAC on direct  appeal when there is no conceivable tactical reason for counsel's actions or where counsel's tactical reasons are apparent from the record. This case met that requirement: "The Attorney General suggests no tactical reason for defense counsel to withhold objection to evidence of mere arrests or misdemeanor conduct not involving moral turpitude, and we cannot imagine one."

Review Grants: Last week, the California Supreme Court granted review in several criminal cases, but briefing was deferred in all of them pending today's decision in Black.

Last Weeks Cal. Supreme Court Review Grants. In addition to a bunch of Blakely/Black/Towne grant & holds, the Court actually granted full review in several criminal cases. 

Are enhancements considered in applying the bar against multiple convictions for necessarily included offenses? The court granted review in two cases presenting this question, requesting full briefing in both (that's not unusual; the court may ultimately pick one to be the lead case and hear argument in just one):

• People v. Izaguirre, S132980. (Ct.App. no. B169352); unpublished opinion; (this case also presents the question "was an enhancement under Penal Code section 12022.53, subdivision (d), necessarily included within the conviction for first degree murder (Pen. Code, § 187) with a drive-by shooting special circumstance (Pen. Code, § 190.2(a)(21))?
• People v. Sloan, S132605. (Ct. Appea. no. C042448; 126 Cal.App.4th 1148.)

Are defendant-appellants entitled to an opinion with reasons stated on issues raised in a pro se supplemental brief when counsel filed a no-issue brief under Wende/Anders?

• People v. Kelly, S133114. (H027483; unpublished opinion). Summary of questions presented from the docket: "(1) Does article VI, section 14, of the California Constitution, which provides that "[d]ecisions of the Supreme Court and courts of appeal that determine causes shall be in writing with reasons stated," set the same standard for a criminal appeal in which defense counsel files a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 raising no issue and defendant submits written argument on his own behalf as the standard that applies to a criminal appeal in which one or more specific claims of error is raised by defense counsel? (2) Did the Court of Appeal opinion in this case satisfy the requirements of article VI, section 14?

Speedy trial right and loss of possibility of concurrent sentences.

• People v. Lowe, S131879. (Ct. App. no. H026889 (6th Dist.); 126 Cal.App.4th 1365: "Can a delay of five months in serving an arrest warrant on a defendant already serving another sentence constitute sufficient prejudice to support the defendant’s claim that he was denied his state constitutional right to a speedy trial by being deprived of the possibility of concurrent sentences in the two cases?"

Modification of judgment following finding of insufficient evidence.

• People v. Navarro, S132666. (Ct. App. no. F044291 (5th dist.) 127 Cal.App.4th 159) "After concluding that the evidence was insufficient to support defendant’s conviction for attempted kidnapping during the commission of carjacking, could the Court of Appeal properly modify the judgment to reflect conviction of two lesser included offenses—attempted kidnapping and attempted carjacking—or only one such offense?"

Meaning of "single occasion" (one-strike law) and "separate occasions" (PC 667.6(d).

• People v. Saphao, S132399. (Ct. App. no. A103716 (1st dist., div.; court of appeal opinion; order modifying opn & denying rehg) "Did the evidence support the trial court’s findings that defendant’s crimes did not occur on a “single occasion,” within the meaning of Penal Code section 667.61, subdivision (g), and that they occurred on “separate occasions” within the meaning of Penal Code section 667.6, subdivision (d)?"

Ninth Circuit June Motions/Screening Panel: Kleinfeld, Tashima, and Thomas