Criminal Appeal

LWOP Not Mandatory for Dyleski

Regarding the minor convicted of first degree murder with special circumstances (resid. burg) of Pamela Vitale (wife of defense attorney Daniel Horowitz), the SF Chronicle is reporting that "The verdict will send Dyleski to prison for the rest of his life without the possibility of parole." Not necessarily.

LWOP is discretionary for 16 and 17 years old convicted of 1st degree murder with special circumstances. Cal. Penal Code sec. 190.5(b) (emphasis added):

(b) The penalty for a defendant found guilty of murder in the first degree, in any case in which one or more special circumstances enumerated in Section 190.2 or 190.25 has been found to be true under Section 190.4, who was 16 years of age or older and under the age of 18 years at the time of the commission of the crime, shall be confinement in the state prison for life without the possibility of parole or, at the discretion of the court, 25  years to life.

 

9th Cir. Rejects Three-Striker's 8th Amend Claim

This morning the Ninth Circuit rejected a California inmate's 8th Amendment challenge to his  25-to-life three strikes sentence. Taylor v. Lewis (9th Cir. no. 04-17517, Aug. 15, 2006).  The sentence was imposed for possession of .036 grams of cocaine.Taylor's strikes included a 1980 voluntary manslaughter conviction and a 1986 robbery with personal gun use. (Perhaps it was the prior manslaughter conviction that led the AG to not bother to file a brief in this appeal.)

In its proporitionality review, the court noted that Taylor's 25-to-life sentence was less severe than the sentence in Solem (LWOP), more severe than that in Rummel (12-to-life) and "identical" to the three strikes sentence recently upheld in Andrade and Ewing. (That's not quite correct because the sentence in Andrade was 50-to-life; but for proportionality review, when comparing to one count of petty theft, 25-to-life might be the relevant term to consider.) The Court then rejected Taylor's argument that his possession offense was less serious than the property crimes in Rummel ($120.75 by false pretenses), Andrade ($153.54 worth of videotapes) and Ewing (three golf clubs worth $399 each) because his crime was victimless:

Accordingly, it was not unreasonable for the California Court of Appeal to consider Taylor’s triggering offense at least as serious as the property offenses involved in Rummel, Ewing, and Andrade, where the Supreme Court upheld recidivist sentences of 12 or 25 years to life.

After then noting how Taylor's prior criminal history, including the voluntary manslaughter, was more serious than that in the other cases, the Court concluded no relief was available under AEDPA:

in light of Rummel, Ewing, and Andrade, where the Supreme Court upheld lengthy recidivist sentences, we are satisfied that the state court was not required to find a violation of the Eighth Amendment because: (1) Taylor will be eligible for parole after 25 years; (2) his triggering offense was, at least, not obviously less serious than a property offense such as felony grand theft; and (3) his prior offenses involved violence and crimes against a person, and he has served multiple prior prison terms.

Judge O'Scannlain wrote the opinion and was joined by Judges Goodwin and Thomas. Judge Thomas, whose entire opinion follows, wrote separately to express that his vote was compelled by AEDPA:

Because I believe that the state court decision was not an objectively unreasonable application of clearly established federal law as determined by the Supreme Court of the United States, I concur in the judgment.

AEDPA Applied to Propensity Evidence and Attorney Conflict

In an interesting 2-1 decision filed last week, the Ninth Circuit remanded for an evidentiary hearing on a state (Nevada) prisoner's claim of conflicted trial counsel; the court also rejected the defendant's claim that the use of propensity evidence to convict him violated his federal constitutional right to due process. Alberni v. McDaniels (9th Cir. no. 05-15570, filed Aug. 9, 2006). It's the propensity claim that interests me more, as other crimes evidence is now routinely admitted for propensity purposes, without limitation, in California sex-offense and domestic-violence cases. The California Supreme Court has held that such use of propensity evidence does not violate the constitution (unless it is unduly prejudicial, as compared to its probative value, under a traditional weighing under Evidence Code section 352 (similar to such weighing under FRE 403).)The Alberni decision is a reminder that state prisoner's will not be able to obtain federal habeas relief on such claims.

Judge Alarcón, joined by Senior District Judge H. Russel Holland of the D. of Alaska sitting by designation, first analyzed the propensity evidence claim, noting that in 2001 the Ninth

Judge Alarcón, joined by Senior District Judge H. Russel Holland of the D. of Alaska sitting by designation, first analyzed the propensity evidence claim, noting that in 2001 the Ninth Circuit had, "[i]n Garceau v. Woodford, 275 F.3d 769 (9th Cir. 2001), rev’d on other grounds, 538 U.S. 202 (2003), acknowledged that the 'Supreme Court  has never expressly held that it violates due process to admit other crimes evidence for the purpose of showing conduct in conformity therewith.' Id. at 774. In fact, the Supreme Court reserved determination of this question in Estelle v. MacGuire, 502 U.S. 62 (1991)." That status of propensity jurisprudence does not bode well for a habeas petitioner seeking relief under AEDPA, which allows habeas relief to state prisoners only when the state court decision is contrary to, or an unreasonable of, clearly established U.S. Supreme Court authority.

Noting that "every circuit, in cases decided prior to the enactment of AEDPA, has acknowledged, at least implicitly,that the improper introduction of evidence may violate due process if it renders a trial fundamentally unfair," and also noting "the corresponding unlikelihood the Supreme Court will ever resolve the question it reserved in Estelle, [footnote citing cert denials omitted]" Judge Alarcón concluded that the petitioner's "argument that this Court should apply general principles of due process articulated by the Supreme Court is somewhat attractive." Nevertheless, in light of the express reservation of the issue in Estelle v. MacGuire, Judge Alarcón concluded that relief was not available under AEDPA, i.e. a bunch of circuit law was not controlling in an AEDPA case.

Judge McKeown concurred with this portion of the majority opinion, writing separately "to underscore that the Supreme Court’s decision to pass on a question, even expressly, is not automatically the death knell for habeas relief." Nevertheless, she agreed the state of SCOTUS propensity jurisprudence did not allow relief in this case because "the current reach of due process for propensity evidence does not extend past the generic and very narrow standard of 'fundamental fairness' or 'fundamental conceptions of justice,' Dowling v. United States, 493 U.S. 342, 352-53 (1990), which, for the purposes of AEDPA’s clearly established federal law requirement, is barely one step removed from the Constitution’s recitation of due process itself."

NOA Liberally Construed

In a dependency case last week, the Court of Appeal (Fifth Dist.) reaffirmed that notices of appeal are to be liberally construed. The Court specifically held that a notice of appeal from an order terminating parental rights would be liberally construed to also encompass an order denying a petition to modify (WI Code sec 388) an earlier order filed within the 60-day period preceding the NOA. In re Madison W., Cal.Ct.App. (Div. 5) F049851, filed Aug. 10, 2006.

Cal. Supreme Court Affirms Death Sentence

In an unanimous opinion authored by Justice Kennard, the Court unanimously affirmed the convictions and death sentence in People v. Cook (no. S042223, Cal. Supreme Court, filed Aug. 14, 2006.)

Judicial Review of Prison Discipline

In a prison discipline case decided today the Cal. Court of Appeal described the standard of appellate review of the superior court's ruling on the habeas (de novo) and the trial court's standard for review of the administrative fact-findings (some evidence). In re Zepeda (Cal.Ct.App. (4th Dist./Div. 1) no. D047776, filed Aug. 14, 2006).

State Public Defender Turns 30

As was reported (subscription required) today in the Recorder, California's State Public Defender turned 30. The articles details the creation of the office in 1976 when there was no capital punishment and its evolution to capital-work only as the non-capital work was shifted to private panel attorneys and the district appellate projects. The article also notes the office's budget woes in recent years.

9th Circuit Nominees

How Appealing reports that the Senate has returned two Ninth Circuit nominees--- William Gerry Myers III and N. Randy Smith---, along with three other federal appellate court nominees, to the President.

Two other nominees were confirmed in the past few months: Sandra Segal Ikuta (taking Judge Browning's seat) and Milan D. Smith, Jr. (taking Judge Tashima's seat).

As I understand it, there remain two vacancies on the Ninth Circuit and no pending nominees.

New Criminal Law Review

The New Criminal Law Review is a new criminal law review ...

Focused on examinations of crime and punishment in domestic, transnational, and international contexts, New Criminal Law Review provides timely, innovative commentary and in-depth scholarly analyses on a wide range of criminal law topics. The journal encourages a variety of methodological and theoretical approaches and is a crucial resource for criminal law professionals in both academia and the criminal justice system. The journal publishes thematic forum sections and special issues, full-length peer-reviewed articles, book reviews, and occasional correspondence.

Judicial (i.e. Not Legislative) Retroactive Application of Statute of Limitations

SCOTUSblog reports that SCOTUS has requested that the State of Connecticut file a response to Michael Skakel's cert. petition (Skakel v. Connecticut, no. 06-52), which presents a follow-up question to Stogner v. California, 539 U.S. 607 (2003):

In Stogner v. California, 539 U.S. 607 (2003), this Court held that a state law authorizing a prosecution that the passage of time had previously barred violates the Constitution’s Ex Post Facto Clause. This Court’s cases have held that the Due Process Clause prevents the judicial branch from achieving, through a legal interpretation both unexpected and indefensible by reference to the law previously expressed, that which the legislative branch may not achieve under the Ex Post Facto Clause. Bouie v. City of Columbia, 378 U.S. 347, 354 (1964); Rogers v. Tennessee, 532 U.S. 451, 461 (2001). In order to authorize a prosecution of petitioner, the Connecticut Supreme Court needed to overrule two of its prior unanimous decisions under which the limitations period had expired almost 20 years before the case was brought.

The question presented is whether a State violates the Due Process Clause of the Fourteenth Amendment when its highest court unexpectedly overrules its own binding interpretation of one of its statutes in order to authorize a criminal prosecution that the passage of time had previously barred.

New Sentencing Blog: "Corrections Sentencing"

Corrections Sentencing is a new blog from Michael Connelly and  Kim Steven Hunt.

Per the Blog bios: Connelly "is currently Administrator of the Evaluation & Analysis Unit of the Oklahoma Department of Corrections. He previously served as executive director of sentencing commissions in Maryland and Wisconsin as well as research director for the Oklahoma sentencing commission." Hunt  is the Executive Director of the District of Columbia Sentencing Commission, an independent agency of local government.