Criminal Appeal

Will McGee be to Shepard, as Apprendi was to Jones?

A cert. petition, no. 06-6088, is now pending in McGee v. California, the case in which the California Supreme Court declined to find a constitutional right to a jury trial on facts used to prove that an out-of-state robbery would have been a robbery in California (opinion here):

In determining whether a defendant is subject to increased punishment on the basis of a prior conviction, it sometimes is necessary to examine the record of the earlier proceeding to determine whether it involves the type of qualifying prior conviction that authorizes increased punishment under the applicable sentencing statute. In view of the unusual and somewhat specialized nature of the inquiry that must be conducted for this purpose — an examination that is strictly limited to a review and interpretation of documents that are part of the record of the prior criminal proceeding — our decisions establish that under California law it is the court, rather than the jury, that is entrusted with the responsibility of undertaking this inquiry and making the determination. [Citations.]

As for Shepard v. U.S., the California Supreme Court correctly noted that SCOTUS decided that federal criminal case under the doctrine of avoiding constitutional doubt. Rather than upsetting long-standing California procedure, the California Supreme Court chose to await a clearer statement from SCOTUS that a jury trial is constitutionally required in this situation:

Although the Shepard decision may suggest that a majority of the high court would view the legal issue presented in the case before us as presenting a serious constitutional issue, the high court’s decision did not purport to resolve that issue. The issue before the high court in Shepard was resolved as a matter of statutory interpretation, and the court did not purport to decide whether a state is constitutionally precluded from permitting a court to conduct the kind of examination of the record of a prior criminal proceeding that occurred in the case before us in determining whether a conviction constitutes a qualifying prior conviction for purposes of enhancement under a state sentencing statute. [Footnote omitted.]

Accordingly, we believe that Shepard fails to establish the validity of the Court of Appeal’s application of Apprendi.

* * * *

In view of the foregoing circumstances, we conclude that Shepherd does not provide the type of clear resolution of the issue that would justify overturning the relevant California precedents.

Read my post on the McGee oral argument here and the Cal. Supreme Court decision here.

 

Pet-Notification Probation Condition Stricken on Appeal

A California Court of Appeal (4th Dist., Div. 2) has stricken the pet-portion of a probation condition requiring a defendant convicted of possession of methamphetamine to “[k]eep the probation officer informed of place of residence, cohabitants and pets, and give written notice to the probation officer twentyfour (24) hours prior to any changes.” People v. Qunitero, no. E039290, filed 9/27/06).

The two-judge majority opinion (authored by Justice Barton C. Gaut and joined by Justice Douglas P. Miller) found the condition overbroad and unrelated to the offense, criminal activity, and future criminality. The majority, noting that probation supervision includes home visits, did allow that "If facts could have been brought to show that a defendant is likely to have, or to live on premises that have, a dangerous animal, then there might be some justification for a probation condition narrowly tailored to avoiding the anticipated danger."

Justice Betty Ann Richli dissented, finding the condition reasonably related to future criminality as it facilitated home visits and probation searches. She also would reject the argument that the condition was overbroad as it did not bar pet ownership, or require probation-officer approval; it only required notice to the probation officer of what animals were present in the home.

En Banc Review Granted: Cal. Capital Habeas With Extrinsic Evid (Bible Passages) and Penalty Phase IAC Issues

The Ninth Circuit has granted en banc review in Fields v. Brown, no. 00-99005, a capital habeas case from California. The most recent opinion in this case was filed on December 8, 2005 and was authored by Judge Rymer (joined by Judges Kozinski and Silverman). According to the petition for rehearing, amici briefs, and opposition (all of which can be accessed here in one very big file), the issues include (1) penalty phase juror misconduct in bringing bible references into deliberations and (2) penalty phase IAC in failing to investigate and present mitigating evidence.

Is Waiver Waivable? - Split Decision From Ninth Circuit

U.S. v. Castillo (9th Cir. Sept. 22, 2006)

In a 2-1 opinion authored by Judge Beezer (and joined by Judge Tallman) the Ninth Circuit held that an appeal from the denial of a motion to suppress must be dismissed when the defendant has entered an unconditional guilty plea, even if the government has not raised the jurisdictional defect. In contrast, the government can waive a claim that an appeal should be dismissed because the taking of the appeal conflicts with a waiver of appellate rights that was a term of a plea agreement.

Judge Bybee dissented, finding the two situations indistinguishable and suggesting that only the en banc court could hold as the majority did.

9th Cir. Proposes Rule Changes

October 20 is the deadline to comment on the Ninth Circuit's  proposed amendment to Circuit Rule 36-3 accommodating FRAP 32.1, eff. Dec. 1, 2006, the new rule requiring federal courts to allow citation to unpublished opinions issued after Jan. 1, 2007. The proposed amendment: 

• keeps unpublished opinions non-precedential;
• permits citation to unpublished dispositions and orders issued on or after Jan. 1, 2007;
• permits citation to unpublished dispositions and orders issued before Jan. 1, 2007, only in the limited situations permitted prior to the amendment (when relevant under the law of the case, res judicata, collateral estoppel doctrines; for factual purposes (e.g. to show double jeopardy); and in a request for publication or petition for rehearing).
• and eliminates the requirement of attaching copies of unpublished decisions to the document in which it is cited. (New FRAP 32.1 requires that if a party cites a federal opinion not available in a publicly accessible electronic databases, the party must serve a copy of the opinion with the document in which it is cited.)

Cal. DSL After Cunningham

According to a Law.com article, sentencing scholar Michael O'Hear of Marquette University Law School states that if SCOTUS finds the California Determinate Sentencing Law to be unconstitutional the result will be "devasting" and "chaos" will result.

In Cunningham v. California, No. 05-6551, the justices will examine California's three-tiered, determinate sentencing system for compliance with the Sixth Amendment and Apprendi and its progeny. Cunningham is significant for at least two reasons, said sentencing scholar Michael O'Hear of Marquette University Law School. "We're talking here about potentially devastating results for the largest state criminal justice system in the country," he said. "If the state loses, it's going to result in chaos in this enormous system."

I'm not so sure. For one thing, only one aspect of the sentencing scheme would be unconstitutional and require a fix.

For another thing, we already have some experience with this, and I wouldn't call the result "chaos."  In the post-Blakely/pre-Black period most reviewing courts had held that there was a right to a jury trial on some aggravating factors used to impose the upper term. While uncertainty abounded (and still does) the system did not become chaotic. The trial courts adapted. The majority of cases are resolved by plea, and in most of those cases the plea deals included "Blakely waivers." In a small number of other cases courts actually tried the aggravating factors to juries.

After Cunningham, of course, there are other measures the courts or legislature could take to "fix" the system and avoid chaos. For instance, either body could amend the statute (Cal. Pen. Code section 1170(d)) to make the upper term sentence available without any additional fact-finding. If that change were made, there would be little significant change in practice or result. (Sentencing courts would actually be reluctant to impose an upper term in the absence of aggravating factors because the result might be considered an abuse of discretion.) Or no legislative change need be made, and cases would proceed under the new understanding of the law -- prosecutor's would charge aggravators and juries would be instructed on them.

Review Grant - Writ Challenge to Indictment By Sutter County Officials Charged With Accounting Irregularities

The Cal. Supreme Court has granted review in In re Stark, no. S145337 (3d Dist. opinion) a case in which the Court of Appeal (3d Dist.) had granted partial writ relief to two elected officials in Sutter County charged by indictment with various violations of section 424(a) of the Penal Code, e.g. misappopriation of funds, keeping false accounts, etc.

The court docket does not show yet what particular issue is to be briefed, but it may relate to the Court of Appeal's questioning of the reasoning of a California Supreme Court decision regarding the scope of writ review of erroneous instructions to grand juries.