Criminal Appeal

Ninth Circuit Standards of Review Outline Updated

Last week the Ninth Circuit posted an updated version of its Standard of Review outline. This is an invaluable resource for Ninth Circuit practitioners.

In Natural & Probable Consequences Prosecution, Court May Sua Sponte Identify Target Offense to Instruct

In California, an aider & abettor is liable for any offense which is the natural & probable consequence of the target offense he encouraged or facilitated. In a published opinion issued today, Division Three of California's Fourth Appellate District held that the trial court did not abuse its discretion in instructing the jury on the target offense of assault with a deadly weapon over the objection of the district attorney who wanted an instruction on breach of the peace as the target offense.

People v. Hoang, no. G036515 (Cal.Ct.App. 4th Dist., Div. 3, filed 11/29/06).

No Cal Supreme Review Grants This Week

This week's Cal. Supreme Court order list contains no full grants of review.

Opinions "With Reasons Stated" Required on No-Issue Briefs (Anders) in Criminal Appeals

Yesterday, the California Supreme Court held that article VI, section 14, of the California Constitution requires opinions "with reasons stated" when court-appointed counsel files a no-issue brief under People v. Wende, 25 Cal.3d 436 (1979) and Anders v. California, 386 U.S. 738 (1967). This requirement includes addressing the defendant's contentions made in the pro se supplemental pleading permitted by Wende and Anders. Besides being required by the state constitution, Chief Justice George, writing for the four-justice majority, reasoned that opinions will serve the purposes of Anders/Wende by "promoting a careful examination of each case and a result supported by law and reason", will also provide guidance to litigants and courts in subsequent litigation, i.e. petitions for review and habeas corpus proceedings, and  "may ... persuade the defendant that counsel's conclusions are correct and thus prompt the defendant to abandon his or her efforts to obtain further judicial review."

So, is this a big deal? Not really for three reasons. First, many of California's appellate courts already write Wende opinions that comply with the requirements of Kelly. Second, in the vast majority of Wende/Anders appeals the defendant does not raise pro se contentions. Third, the opinion required by Kelly is no great burden. As the Court explained, "an extended discussion of legal principles" is not required, and "a recitation of each of the defendant's assertions" may not be required in every case. In terms of analysis of legal claims, all that may be required is identifying a contention and citing a case or giving a very succinct reason why the claim fails. Indeed, rather than remanding Kelly itself for such an opinion, the Supreme Court conducted the Wende/Anders review itself and wrote not quite two pages in describing the factual and procedural background and in giving reasons for rejecting appellant's pro se claims.

Justice Corrigan---a Court of Appeal Justice not so long ago, joined by Justices Baxter and Chin, concurred with the majority holding that an opinion with reasons is required, but dissented from the Court's "exercise of this Court's supervisory power to impose additional requirements on the Courts of Appeal." Justice Corrigan particularly "would not require them to describe any facts or procedural details that are not directly relevant to claims made by the defendant. I would certainly not encourage them to anticipate future habeas corpus petitions; in the vast majority of Wende appeals this would simply be a waste of time."

People v. Kelly, no. S133114 (Cal.Sup.Ct. filed 11/27/2006). J. Courtney Shevelson represented the appellant; Deputy Attorney General Kelly M. Croxton represented the state.

SVP Has No Right to Testify Over Objection of Defense Counsel

Division Two of California's Fourth Appellate District held today that in a jury trial on the recommitment of sexually violent predator, the defendant has not right to testify over the objection of his attorney: "We conclude defendant did not have a constitutional right to testify over his attorney’s objection because the SVP proceedings are special proceedings of a civil nature and his attorney could waive his right to testify on the ground doing so would be harmful to defendant’s defense."

The unanimous opinion in People v. Allen, no. E039518 (Cal.Ct.App. 4th Dist., Div. 2, filed 11/16/06), was authored by Justice Gaut.

"They were selling TiVo units on eBay. Welcome to the 21st Century."

When a footnote on page 2 of an opinion out of Division 3 of California's Fourth Appellate District states "They were selling TiVo units on eBay. Welcome to the 21st Century." you don't have to turn to the last page to know Justice Bedsworth authored the opinion.

Of greater legal significance, the Court held that when property is stolen in county A (Orange) and is received by the defendant in county B (L.A.) with knowledge that the property was stolen, venue lies in either county, even if the defendant did not know it was stolen from county A.

People v. Alvarado, no. G036766 (Cal.Ct.App. 4th Dist., Div. 3, filed 11/16/06).

Cal. Supremes Issue OSC in Capital Habeas

Yesterday, the California Supreme Court issued an order show cause in a capital habeas case presenting questions regarding multiple instances of juror misconduct, ranging from false statements in voir dire to watching a movie called "American Me" as background to introducing outside-the-record information during deblierations that the defendant had committed another killing. The case is In re Maurice Boyette, no. S092356.

The Court affirmed Boyette's conviction and sentence on direct review in 2002 in People v. Boyette, no. S032736.

Boyette is represented by former State Public Defender Lynne Coffin.

Review Grant - DNA Evidence

Yesterday, the California Supreme Court granted review in People v. Nelson, no. S147051  (Cal.Ct.App. (3d Dist.) no. C047366. In its unanimous partially-published opinion in this case involving a 1976 murder and 2002 DNA hit, the Third District had rejected the defendant's DNA related claims

(1) the delay between the date of the crime and the filing of a complaint charging him with the murder violated his right to due process of law, and (2) in light of the holding in People v. Kelly (1976) 17 Cal.3d 24 (hereafter Kelly), the DNA evidence should not have been presented to the jury because there is no general scientific acceptance of a statistical means of explaining the results of a DNA comparison when a DNA databank is used to identify a potential candidate.

Appellant was represented in the court of appeal by Cara DeVito.

Review Grant - Is Defendant's Absence During Prosecutor's Presentation of Evidence Structural Error?

The Cal. Supreme Court granted the Attorney General's petition for review yesterday in People v. Concepcion, no. S146288 (Ct.App. (4th Dist., Div. 2, no. E036353). The Court's site doesn't yet identify the question presented, but the court of appeal's 2-1 opinion shows that the issue(s) will resolve around the defendant's involuntary absence during the prosecution's case:

[W]e hold that the defendant’s involuntary absence from the courtroom during the prosecution’s presentation of all the evidence offered to support certain criminal charges was structural error, and the defendant’s convictions must therefore be reversed.

The dissenting justice, Presiding Justice Manuel A. Ramirez, wrote that the error was not structural.

The appellant is represented in the Court of Appeal by Terrence V. Scott.

No Review Grants this Week

This being an oral argument week, the California Supreme Court issued no order list this week.

Recorded Jail Calls Admissible

Division Five of the First Appellate District held on Wednesday that recorded jail calls are admissible in a prosecution of the inmate:

Defendant was arrested for domestic violence against his girlfriend. While he was in jail, he placed several calls to her, which were recorded pursuant to an announced, blanket policy of recording all outgoing telephone calls by jail inmates. The prosecutor obtained recordings of the calls for use in defendant’s criminal case, and the trial court denied a motion to suppress. We affirm, holding that defendant impliedly consented to the recording of his calls, and the recordings are admissible under federal and state law.

The Court found that the recordings did not violate the federal wiretap law because the inmate impliedly consented to the recording. The Court found that a California privacy law did not protect the inmate because a law-enforcement exception applied.

The unanimous opinion was authored by Justice Linda M. Gemello.

People v. Windham, no. A11600 (Cal.Ct.App. 1st Dist.,  Div. 5, filed 11/8/06).

Involuntary Med Order Vacated

Yesterday, Division 2 of California's First Appellate District ordered published its October 25 opinion vacating an involuntary medication order because it was not supported by substantial evidence that the medication would make the defendant competent to stand trial. Correction (11/17/06): The unanimous decision was authored by Justice Haerle (not PJ Kline, as I originally wrote).

People v. McDuffie, no. A111738 (1st Dist., Div. 2 (filed 10/25/06; published 11/9/06)).

Simultaneous Poss. of 3 Different Types of Ammo is One Viol. of Cal.PenCode 12101(b)

In addressing "an issue of first impression", Division 3 of the 2d appellate district held yesterday "that Penal Code section 12101, subdivision (b) [foonote omitted] (possession of live ammunition by minor) is violated only once by a minor who simultaneously possesses three different types of ammunition."

The unanimous decision was authored by Presiding Justice Joan D. Klein.

In re Carleisha P., no. B184948 (Cal.Ct.App. (2d Dist., Div. 3) filed 11/9/06)

Prop 83 TRO

Earlier today a district judge in the Northern District of California issued a TRO in Doe v. Schwarzenegger, et al., no. 06-cv-06968-JSW, restraining application of the new residency requirements for sex-offender registrants, as enacted as part of Proposition 83. The TRO looks like it was issued by District Judge Jeffrey S. White, with District Judge Susan Ilston signing for him. The TRO does not address the GPS monitoring aspect of Prop. 83, or any other of the many provisions that were part of the initiative.

According to the SF Chronicle article, the drafters of Prop. 83 did not oppose the TRO because they did not intend it to apply to anyone already released from prison:

State Sen. George Runner, R-Lancaster (Los Angeles County), an author of the measure, said today that it was not intended to apply to anyone who has already served a sentence and registered as a sex offender, but only to those who are now in prison or who will be sentenced in the future.

Of course, if the judge is correct that the new burden is punitive, then, under the ex post facto clause, it can only be applied to those who committed their offenses after the new law became effective, which was probably yesterday - 11/8/06, i.e. the day after the election.

Prop. 83, by they way, does a lot more than add burdens for sex offender registrants. It also provides for indeterminate commitment terms for SVPs and makes other changes to sex offense sentencing, including changes to the one strike law.