Criminal Appeal

New Model Criminal Jury Instructions Posted. The Cal. Judicial Council has finally posted the new plain-English model jury instructions for criminal cases. While I could find no link on the Judicial Council Web site, I found the page with a slight modification to the web address for the civil jury instructions. The instructions are posted on the Criminal Jury Instructions Resource Center. But don't rush into downloading the instructions---particularly if you're still on dial-up. The document is 4466 KB and over 2555 pages long.

Cert. Grants Today (One from California):  SCOTUSblog has a list of today's cert grants. There are several criminal and habeas cases. The summaries below are quoted from the ever-reliable and ever-timely SCOTUSblog.

There is, of course, the obligatory federal habeas statute of limitations case:

No. 04-1324, Day v. Crosby: In a habeas proceeding, whether state waives limitations defense when it fails to plead or otherwise raise that defense and expressly concedes that habeas petition was timely; and whether Rule 4 of Rules Governing Section 2254 Cases permits district court to dismiss habeas petition sua sponte after state has filed answer based on ground not raised in answer.

And there is a case presenting a question regarding the constitutional right to present a defense:

No. 04-1327, Holmes v. South Carolina: Whether state's rule governing admissibility of third-party guilt evidence violates criminal defendant's constitutional right to present complete defense grounded in due process, confrontation, and compulsory process clauses.

And a fourth amendment case regarding anticaptory warrants:

No. 04-1414, United States v. Grubbs: Whether the Fourth Amendment requires that evidence be suppressed when obtained pursuant to an anticipatory search warrant after warrant's triggering condition is satisfied, but when that triggering condition is not set forth either in the warrant itself or in an affidavit that is both incorporated into the warrant and shown to the person whose property is being searched.

Last, but not least, there's a parole search case which apparently presents the question of whether individualized suspicion is required for a parole search. Samson v. California, No. 04-9728. Samson is a case out of California's First Appellate District and the petitioner's attorney is Martin Kassman of San Francisco.
 

Oral Sex Up Among Teens; Cal. Supreme Court Reviewing Same. A recent, and well publicized, study shows that teens are engaging in oral sex at higher rates and they're doing so because they perceive it to be safer than intercourse. This new data may be of interest to the California Supreme Court, which has before a case presenting the question of whether the legislature had good reason (rational basis?) for penalizing oral sex with a minor more severly than vaginal intercourse with a minor. In California, oral sex with a  minor requires sex offender registration; vaginal intercourse with a minor does not require registration.

The case is People v. Hofsheier, no. S124636. In April 2004, the Sixth Appellate District held that imposing a sex offender registration requirement for consensual oral copulation with a minor but not for sexual intercourse with a minor violates equal protection. (The case involved a 22-year-old defendant and 16-year-old minor.) Earlier posts on Hofsheier can be read here and here. (By the way, contrary to the Supreme Court's electronic docket in Hofsheier, I don't believe the case involves a timber law preemption question. Let's see if it gets corrected.)

You can read a post on a related case, People v. Alcala, here. That post list the opinion's seven reasons why oral sex might treated more severly than intercourse.

"Fortunately so far, in what is becoming an active hurricane season, no courts sustained damage and all have rapidly resumed normal work." That's from the pre-Katrina August edition of the Third Branch.

Argument Week for Cal. Supremes. After two months without hearings, the Cal. Supreme Court resumes hearing arguments this week short a justice. As the calendar shows, court of appeal justices will be sitting by designation, one-case-each, in alphabetical order.

One case of particular interest for criminal appellate and federal habeas practitioners will be People v. Partida, no. S127505, which presents the question of whether a federal due process claim was waived:

1. Did defendant forfeit his federal due process claim on appeal by failing to object on that ground in the trial court?
2. Does the forfeiture exception articulated in People v. Yeoman (2003) 31 Cal.4th 93, 117, apply when the appellate claim is otherwise governed by Evidence Code section 353(a)?
3. Did the admission of testimony from a gang expert violate either Evidence Code section 352 or federal due process?

Arguing for the appellant will be Verna Wefald (counsel for appellant) and Barry Helft (counsel for amicus, Cal. State Public Defender). Deputy Attorney General Laura J. Hartquist represents the state.

Also on the calendar is a knock and notice case.

Abeyta Update. Although it hasn't been docketed yet, it appears that the Cal. Attorney General has filed a waiver noting that the state will not be filing a response to the certiorari petition unless asked to do so by the Court. Abeyta is a California case presenting the question of whether California's Determinate Sentencing Law is unconstitutional in light of Apprendi and Blakely. The New Jersey Supreme Court has already opined that the California Supreme Court's holding that the California scheme is constitutional is directly contrary to Blakely.

Abeyta Response Due Next Week. The AG's response to the petition for certiorari in Abeyta v. California, no. 05-5747, is due next Monday (9/12). The petition asks the Court to review California's sentencing scheme under Blakely. As the petition notes, there is now a split among the state courts as to whether Blakely established a bright-line rule and California's decision finding no bright-line rule is in direct conflict with Blakely.

I don't know whether there are other cert petition pending in other post-Black cases, but given the previous post, many more cases will be making their way into federal court.

Cal. Supreme Court Cleans Up Blakely Docket. Today, the Cal. Supreme Court resolved almost 100 pending cases  in which review had been granted with briefing deferred pending Black and Towne. The court either dismissed review (presumably in cases in which the court of appeal had found no right to a jury trial) or transferred the cases back to the courts of appeal (in cases in which the court of appeal had found a right to a jury trial).

The Court, however, has not yet dismissed review in Towne, the other briefed Blakely case. It would be premature to read anything into that. The Court simply may not have gotten around to it. Towne, however, does present a twist not present in most cases: the trial court used as an aggravating factor conduct for which the defendant was actually acquitted by the jury.

Katrina and Inmates. I haven't seen much press on Katrina's impact on jails and prison. There were early reports of inmates moved onto a freeway ramp and on a riot in the Orleans Parish Prison. But not much since then. But here are couple of developments:

• a bus station in New Orleans has been converted into a jail
• the Louisiana Association of Criminal Defense Lawyers has a Katrine relief Web log, "providing relief to criminal defense lawyers across the state whose lives and practices have been disrupted by Hurricane Katrina."

Supreme Court Line-Up on Sentencing Issues.  Prof. Berman at Sentencing Law & Policy has an interesting post descibing the line-up of the Court, without Rehnquist and O'Connor, on various sentencing issues, including Blakely/Apprendi and their Almendarez-Torres, and Harris exceptions. According to Prof. Berman:

• Only 2 support the Almendarez-Torres exception (Justices Kennedy and Breyer);

and

• At most, 3 support the Harris exception (Justices Scalia, Kennedy and Breyer)