Criminal Appeal

Are Juvenile Adjudications Prior Convictions Under Apprendi and Blakely?

According to California's Sixth District Court of Appeal, the answer is no (with a caveat). The Court held that it is unconstitutional to use juvenile adjudications to increase the maximum punishment for an offense, in light of Apprendi and Blakely, because the juvenile offender does not have the right to a jury trial. In so ruling, the Court allied itself with the Ninth Circuit's majority holding in United States v. Tighe (9th Cir. 2001) 266 F.3d 1187 and a "small but growing" number of courts across the country.

The Court, however, drew a distinction between juvenile adjudications stemming from contested hearings and those stemming from admissions. While a contested juvenile adjudication, in the court's view, does not qualify as a prior conviction within the meaning of Apprendi and Blakely, a juvenile adjudication based on an admission in juvenile court does (and therefore may be used by a judge to impose on an adult a sentence in excess of the statutory maximum).

The decision was authored by Justice Richard J. McAdams and joined fully by Presiding Justice Conrad L. Rushing. Justice Nathan D. Mihara concurred in the judgment only.

People v. Nguyen, no. H028798 (Cal.Ct.App. (6th Dist.) filed 1/22/07)

Cunningham: Upper Terms Unconstitutional

The Supreme Court kept us too busy today to update the blog.  In case you missed it, here's a link to Cunningham v. California, No. 06-6551, striking down upper term sentences provided under California's determinate sentencing law.

"The question presented is whether [California's sentencing scheme], by placing sentence-elevating factfinding within the judge's province, violates a defendant's right to trial by jury. . . .  We hold that it does."

Commentary to follow.

Gonzales: ‘There Is No Express Grant of Habeas Corpus In The Constitution’

Here's a bit of CSPAN footage of Arlen Spector and Alberto Gonzales debating the foundation of habeas corpus.

SVP & Collateral Estoppel

In order to commit a prisoner or parolee to a state mental hospital as a sexually violent predator (SVP), one of the elements that the prosecution must prove is that the defendant has been convicted of a sexually violent offense against two or more victims. In this case, trial court relied on the doctrine of collateral estoppel to bar the defendant from litigating the issue of whether he had been convicted of the requisite qualifying prior convictions on the ground that a jury had already decided the identical issue during the defendant’s previous SVP trial.

California's Sixth District Court of Appeal affirmed and held that it was not a violation of due process for the trial court to employ collateral estoppel to establish this element and take that question away form the jury. The Court of Appeal also concluded that this use of collateral estoppel did not amount to an improper form of a directed verdict.

According to the Court of Appeal, all of the requirements of collateral estoppel were met: the issue sought to be precluded from relitigation was identical to that decided in a former proceeding; the issue was actually litigated in the former proceeding; it was necessarily decided in the former proceeding; the decision in the former proceeding was final and on the merits; and the party against whom preclusion was sought - the defendant - was the same the party to the former proceeding.

While other cases have permitted reliance on collateral estoppel with respect to factual findings from earlier SVP proceedings, those cases had suggested that its use would be limited to prior factual findings that were favorable to the defendant. (See People v. Munoz (2005) 129 Cal.App.4th 421, 432; Turner v. Superior Court (2003) 105 Cal.App.4th 1046.) As collateral estoppel was used here to establish a factual finding severely unfavorable to the defendant, this ruling represents a notable endorsement of the expanded use of collateral estoppel in the SVP context. At the same time, however, the nature of the findings subject to collateral estoppel here was rather uncontroversial, as defense counsel often concedes this element during SVP extension trials.

The unanimous decision was authored by Justice Patricia Bamattre-Manoukian.

People v. Lopez, no. H029248 (Cal.Ct.App. (6th Dist.) filed 1/18/07)

Sex Crimes, Statute of Limitations, And Apprendi

California Penal Code section 803(g) permits the filing of a criminal complaint for certain sex crimes within one year of the date on which the identity of the suspect is conclusively established by DNA testing, even if the otherwise applicable statute of limitations period has already elapsed.

Division Five of California's First District Court of Appeal held today that Apprendi does not require submitting to the jury the question of whether the statute of limitations was properly extended pursuant to section 803(g). According to the Court, by providing for extension of the statute of limitations in certain circumstances, section 803(g) does not define the conduct constituting the underlying offense or establish the level of punishment applicable to the defendant’s conduct. Rather, section 803(g) only regulates the time at which child sexual abuse defined and punished elsewhere in the Penal Code may be charged. Although the right to maintain the action is an essential part of the final power to pronounce judgment, that right constitutes no part of the crime itself.

Moreover, the Court concluded that the defendant forfeited his right to challenge the applicable statute of limitations on appeal by failing to object at trial.

The Court also ruled that battery is a lesser included offense of lewd acts upon a minor. As a result, the trial court had a sua sponte duty to instruct the jury on the lesser included offense of battery, which it did not do here. Under the facts of this case, the Court determined that the defendant was prejudiced by the instructional error and reversed the relevant conviction.

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

People v. Thomas, no. A111109 (Cal.Ct.App. (1st Dist., Div. 5) filed 1/18/07)

Habeas Relief Granted to Dead Petitioner on Brady Claim

California's Fifth Appellate District issued a published opinion granting habeas relief to an inmate convicted of first degree murder and sentenced to LWOP more than 20 years ago. The Court, in a forceful opinion condemning the failure of the justice system, found the Brady violation so egregious, it refused to dismiss the still-pending petition when the petitioner, Mark Collin Sodersten, died on June 25, 2006:

This case calls to account the American system of justice. For that system to have credibility we must respond. As we shall explain, what happened in this case has such an impact upon the integrity and fairness that are the cornerstones of our criminal justice system, that continued public confidence in that system requires us to address the validity of petitioner’s conviction despite the fact we can no longer provide a remedy for petitioner himself. To discharge this writ as moot would be a disservice to the legitimate public expectation that judges will enforce justice. It would be a disservice to justice. Most of all, it would be a disservice to petitioner, who maintained his innocence despite a system that failed him. We will not perpetuate that failure and let silence endorse that result.

The Brady claim stemmed from information showing that "at the time of trial, prosecuting and law enforcement authorities were aware of or actually possessed tape-recorded statements of the two key trial witnesses that contained inconsistent statements, as well as admissions of lying and coercive interrogation of one of the witnesses."

Presiding Justice Ardaiz authored this published 87-page opinion joined by Justice Cornell and Justice Kane. In re Sodersten, no. F047425 (Cal.Ct.App., 5th Dist., Filed Jan. 17, 2007).

"Passive Exposure" to Gun Does Not Constitute "Use" of Firearm

Yesterday, Division Seven of California's Second Appellate District issued a peremptory writ of prohibition barring a trial on a gun use enhancement (PC 12022.5). The Court held that, as a matter of law, the evidence was insufficient to establish gun use because there was no evidence the defendant employed the gun as an aid in the crime and because "passive exposure" to the firearm is insufficient to elevate the crime from arming to use. The defendant had brought the gun into a store and placed it on top of a candy rack. He put his hand over it at one point, but he never picked it up or called attention to it.

Alvarado v. Superior Court, no. B194139 (2d Dist., Div. 7, Filed Jan. 16, 2007). Justice Johnson authored the unanimous opinion, joined by Presiding Justice Perluss and Justice Zelon.

Alameda Judge Nominated to First Appellate District

Governor Arnold Schwarzenegger has appointed Alameda County Superior Court Judge Henry E. Needham, Jr. to a vacancy in Division 5 of California's First Appellate District. The governor's press release provides this background on Judge Needham:

Needham, 63, of Oakland, has served as a judge in the Alameda County Superior Court since 1996, where he currently serves as the assistant presiding judge and the supervising judge of the Hayward branch. He previously was an attorney and later partner in the law firm Anderson,  Galloway & Lucchese from 1988 to 1996, litigating medical malpractice cases. Needham earned a Juris Doctorate degree from San Francisco School of Law and a Bachelor of Arts degree from Fisk University. He fills the vacancy created by the retirement of Justice Lawrence Stevens. Needham is a Republican.

The Commission on Judicial Appointments will hold a hearing on the appointment on January 25. The Commission consists of Chief Justice Ronald M. George, Attorney General Jerry Brown, and, for this First District appointment, Division 2 Presiding Justice J. Anthony Kline, who is the most senior Presiding Justice of the First District.

This won't be the first time Jerry Brown and Justice Kline have been involved in judicial appointments together, but it's but a few years. Justice Kline was then-Governor Jerry Brown's legal affairs secretary from 1975 until 1980. In 1980, Governor Brown appointed Justice Kline to the superior court; in 1982 he elevated him to the Court of Appeal. (More recently (in 2005), Justice Kline was a guest at then Mayor Brown's wedding.)

Millennium Bomber Conviction Reversed

Reversing one of the few tangible victories in the war on terror, the Ninth Circuit vacated the 22-year sentence of “millennium bomber” Ahmed Ressam and reversed one of the most serious of his nine convictions: carrying an explosive device during the commission of a felony. (USA v. Ressam, No. 05-30422) (Alarcon, Rymer, Berzon).  The felony in question was lying on a U.S. Customs form.  As you may recall, Ressam, a confessed al Qaeda trainee, was stopped, searched, and apprehended at border crossing between Canada and Washington State on his way to Los Angeles where he apparently intended to blow himself up at LAX in the days leading up to Y2K.  The Ninth Circuit ruled that under the relevant federal statute, the explosive device must “facilitate” or have some “relation to” the underlying felony.  Because the jury was not instructed on this element, nor was any evidence presented connecting Ressam's bomb and false customs form, the court reversed this count of conviction (and its 10-year mandatory minimum sentence) and remanded for re-sentencing on the eight remaining counts.

(NY Times coverage here.)

SCOTUS and Error Correction

Among the reasons Prof. Doug Berman is frustrated by yesterday's cert. grant in Uttrecht v. Brown (see previous post) is that the Court appears to be getting into the business of "error correction," rather than resolving broad jurisprudential questions. This sparked a debate in the comments section of the post, including a back-and-forth on whether the the Ninth Circuit is flouting SCOTUS AEDPA jurisprudence, and whether similar error correction is necessary to correct flouting of SCOTUS authority by more conservative circuits.

There's no denying that the Ninth Circuit has consistently and forcefully (and more so than other circuits) had its AEDPA merits decisions "corrected" by SCOTUS. But that might not mean that more conservative circuits are not disregarding authority in as extreme a fashion as some commentators perceive the Ninth Circuit disregards authority.

For instance, a few years ago the Fifth Circuit was taken to task for its denials of certificates of appealability. In a June 2004 post entitled "Fifth Circuit Too Quick With the COA Denials," I noted that, "For the third time in two years, the U.S. Supreme Court---in a published opinion---reversed the Fifth Circuit's denial of a state prisoner's request for a certificate of appealability. Tennard v. Dretke, no. 02-10038. The other two cases are Miller-El v. Cockrell, 537 U.S. 322 (2003) [Miller-El I] and Banks v. Dretke, No. 02–8286." Of course, since then the Court had to conduct further "error correction" in Miller-El II, after the Fifth Circuit decision on the merits essentially ignored the very clear views stated in Miller-El I.

I haven't followed how things have evolved in the Fifth Circuit, so I don't know whether that court got the message on COAs. It may be that the Fifth Circuit continues to set the COA bar too high, perhaps as frequently and as wrongly as some observers perceive the 9th Circuit is granting AEDPA relief. But unpublished COA denials would inherently be off the radar, much more so than published AEDPA relief to capital defendants. (I believe the Ninth Circuit publishes all opinions, at least on first petitions, in capital cases. Can anyone confirm?) The fewer "error correction" cert-grants from other circuits could be, in part, because other circuits are disregarding authority in a not so cert-inviting way - such as unpublished denials of COAs.