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.

Cert. Grant - Excusal of Juror for Views On Death Penalty

The Supreme Court granted cert yesterday in one criminal case: Uttrecht v. Brown, no. 06-413. The question presented, as stated in the State of Washington's cert. petition (posted by SCOTUSblog) in this AEDPA capital case, is whether the Ninth Circuit erred "by not deferring to the trial judge's observations and by not applying the statutory presumption of correctness in ruling that the state court decision to remove a juror was contrary to clearly established federal law?"

The decision to be reviewed is a Ninth Circuit opinion authored by Judge Kozinski and joined by Judges Reinhardt and Berzon. That three-judge panel granted relief under AEDPA, holding that the for-cause dismissal of a prospective juror based on his views of the death penalty and the state supreme court's upholding of that ruling, were directly contrary to US Supreme Court authority. Judge Tallman, joined by Judges O'Scannlain, Kleinfled, Callahan, and Bea, dissented from the denial of rehearing en banc.

Background here from SCOTUSblog.
Commentary here from Prof. Berman at Sentencing Law & Policy.

Trial Courts Retain Jurisdiction To Set Victim Restitution Even After Defendants Have Completed Their Sentences

In this case, the trial court ordered the defendant to pay victim restitution in an amount to be determined at a subsequent restitution hearing. The amount had not been set by the time the defendant completed her sentence. Therefore, the trial court denied the government's motion to set the amount of victim restiutition owed by the defendant. The People appealed, and Division Three of California's First District Court of Appeal reversed. According to the Court of Appeal's ruling, the trial court did not lose jurisdiction to order restitution simply by virtue of the fact that the defendant fully served her sentence before the final restitution hearing was held. Defendant's contention to the contrary, the Court concluded, would frustrate the relevant provisions of Article I, section 28, of the California Constitution.

The unanimous decision was authored by Justice Peter Siggins.

People v. Bufford, no. A108741 (Cal.Ct.App. (1st Dist., Div. 3) filed 1/12/07)

Defendant Forfeited Right To Confront His Murder Victim, Even In The Absence Of Evidence Of Intent To Silence The Victim

The trial court in this case permitted police officers to testify as to six separate statements made by the victim to them concerning threats on her life made by the defendant. The trial court deemed the statements admissible under the spontaneous declaration exception to the hearsay rule. The victim was unavailable to testify at trial, as she had subsequently been killed by the defendant. In addition to lodging hearsay objections, the defendant argued that the statements were testimonial and therefore barred by Crawford v. Washington (2004) 541 U.S. 36.

Division Two of California's Fourth District Court of Appeal agreed that all six statements were testimonial. However, the Court pointed out that Crawford also recognized, as an example of what it called an exception to the Confrontation Clause, the rule of forfeiture by wrongdoing, which renders the clause unavailable to one who procures the victim’s absence at trial. Here, the defendant asserted that the trial court erred in concluding that by killing the victim, he forfeited his confrontation right concerning her statements, regardless of the lack of evidence that he killed her at least in part to silence her. He contended that under the circumstances, he could rely on his right to confront her unless he waived it, i.e., he intentionally relinquished it by intending to silence the victim when he killed her.

The appellate court here conducted a very lengthy review of the history of the forfeiture by wrongdoing rule and its application in numerous federal court opinons. Ultimately, it concluded that the rule of forfeiture by wrongdoing operates regardless of the defendant’s intent because it is based on the equitable principle prohibiting a defendant from benefiting from wrongdoing. Therefore, the Court held that admission of the victim's statements to the police did not violate the defendant's Sixth Amendment confrontation right.

As noted by Jono in an earlier post, the scope of the rule of forfeiture by wrongdoing was recently argued before the California Supreme Court. A ruling in that case is due by early March.

The unanimous decision was authored by Presiding Justice Manuel A. Ramirez.

People v. Costello, no. E037674 (Cal.Ct.App. (4th Dist., Div. 2) filed 1/12/07)

Laboratory Report Not Testimonial Under Crawford

The defendant in this case asserted a Confrontation Clause challenge to the admission of evidence that rocks seized from him contained methamphetamine. The evidence came in through the testimony of a supervising criminalist who reviewed the report of another laboratory employee, who did not testify. California's Fifth District Court of Appeal held that admission of this evidence did not violate the confrontation test set forth in Crawford v. Washington (2004) 541 U.S. 36 because: (1) the laboratory report was not testimonial; (2) it was not offered as a substitute for live testimony; and (3) the defendant had a full opportunity to cross-examine the supervising criminalist.

The unanimous decision was authored by Justice Rebecca A. Wiseman.

People v. Salinas, no. F049017 (Cal.Ct.App. (5th Dist.) filed 1/12/07)

One Co-D's Good Cause For A Continuance May Be Another Co-D's Dismissal

Division Seven of California's Second District Court of Appeal held that good cause, attributed from one jointly charged codefendant to another, does not permit the magistrate to set or continue the preliminary hearing for both defendants beyond the 60-day deadline prescribed by statute in the absence of a personal waiver of the 60-day rule by both defendants. In the absence of a personal waiver, dismissal as to the non-consenting co-defendant is required.

The unanimous decision was authored by Presiding Justice Dennis M. Perluss.

Ramos v. Superior Court, no. B192395 (Cal.Ct.App. (2nd Dist., Div. 7) filed 1/10/07)

Traffic Stop Reversal

Today, California's Third District Court of Appeal issued a publication order in a Fourth Amendment traffic stop case decided last month. In so doing, the Court addressed a scenario recently left undecided by the California Supreme Court in People v. Saunders (2006) 38 Cal.4th 1129. Here, the defendant was driving a truck without license plates, but with a properly displayed temporary operating permit. While the temporary operating permit appeared valid on its face, the officer testified that in his experience temporary operating permits are “very often” forged. For this reason, he initiated the traffic stop. The Court of Appeal held that the officer's professed experience with temporary operating permits did not amount to reasonable suspicion. To hold otherwise, the Court reasoned, would effectively mean it is always reasonable to suspect that a temporary operating permit is invalid. Thus, the Court of Appeal reversed the trial court's denial of the defendant's suppression motion.

The unanimous decision authored by Justice Ronald B. Robie, which was originally issued in an unpublished opinion, was ordered published today.

People v. Hernandez, no. C051224 (Cal.Ct.App. (3rd Dist.) filed 12/18/06; ordered published 1/11/07)

Marsden Reversal

California's Fifth District Court of Appeal reversed appellant's guilty plea and sentence for failure to comply with Marsden. In this case, the defendant submitted a letter to the trial court asserting that his attorney had failed to represent his interests. The letter accused appellant's attorney of acting in cahoots with the DA when they persuaded him to accept the plea bargain by falsely telling him his mother was going to testify against him. Because appellant claimed his motion to withdraw was based on inadequate representation by his appointed counsel and stated facts that could constitute good cause to withdraw his plea, the trial court erred in not holding a Marsden hearing and instead appointing a second attorney to investigate appellant's claims.

The unanimous opinion was unsigned.

People v. Eastman, no. F049395 (Cal.Ct.App. (5th Dist.) filed 1/9/07)

California's Assault Weapons Ban Not Preempted By Federal Law

California's Third District Court of Appeal held yesterday that California's ban on assault weapons is not preempted by federal law, under which the firearms possessed by appellant were not unlawful. In addition, the Court concluded that the search warrant derived from firearms records that appellant was compelled to keep under federal law did not violate appellant's privilege against self-incrimination.

The unanimous decision, which also contained an interesting unpublished discussion of the Second Amendment, was authored by Justice Rod Davis.

People v. Wilmshurst, no. C050103 (Cal.Ct.App. (3rd Dist.) filed 1/8/07)

Defective Indictment Subject To Harmless Error Review? What Defective Indictment?

In an 8-1 majority opinion authored by Justice Stevens, the U.S. Supreme Court held that a federal indictment charging the defendant with illegally attempting to reenter the United States was not defective because it failed to allege a specific overt act committed in seeking reentry. Thus, the Court did not reach the question for which it originally granted cert in United States v. Resendiz-Ponce: whether the omission of an element of a criminal offense from a federal indictment can constitute harmless error. According to the Court, the indictment implicitly alleged that the defendant engaged in the necessary overt act simply by alleging that he "attempted" to enter the United States. In the Court's view, the word "attempt" encompasses both the overt act and intent elements. Therefore, an indictment alleging attempted illegal reentry need not specifically allege a particular overt act or any other component part of the offense.

Justice Scalia, in his customary fashion, filed a dissent that failed to mask his incredulity with the majority's approach, which he twice referred to as "certainly irrelevant and probably incorrect." Justice Scalia maintained that the government was required to allege in the indictment not only that the defendant knowingly and intentionally attempted to enter the United States but also that he took a substantial step toward that end. Because Justice Scalia would have held the indictment defective, he proceeded to address the question for which the Court originally granted cert. By reference only to his own opinions in other cases, Justice Scalia tersely noted that he, as the Ninth Circuit concluded, would find the error to be structural and therefore not subject to harmless error analysis.

U.S. Supreme Court Dodges Blakely Retroactivity Question

The U.S. Supreme Court had granted cert in Burton v. Stewart to determine whether Blakely announced a new rule and, if so, whether it applied retroactively on collateral review. The answer to that question will have to wait for another day. Instead of resolving that issue, the Court, in a per curiam opinion, ruled that the district court had been without jurisdiction to entertain the habeas petition in the first place because the petitioner neither sought nor received authorization from the Ninth Circuit before filing his "second or successive" pettition challenging his custody.

No Cal. Supreme Court Opinions or Orders This Week

This being an oral argument week, the California Supreme Court will issue neither opinions nor an order list this week.

Cert. Grant - Ford Claim

The Supreme Court granted certiorari in seven cases on Friday. Only one of them, Panetti v. Quarterman, no. 06-6407, is criminal related. According to SCOTUSblog, Panetti raises the question of "whether it is unconstitutional to execute an individual who is factually aware of the reason he faces execution, but because of mental illness has a delusion about the state's actual reason for putting him to death."

Prof. Doug Berman also has a post on Panetti, with a link to a NYT story on the case.

The New Criminal Appeal Bloggers

As noted a couple of days ago, there are two new contributors to Criminal Appeal: Jeremy Price and Mike Romano.

Jeremy graduated from UC Hastings College of the Law in 2005.  After a brief stint at a Bay Area public defender's office, he joined the same non-profit law firm in San Francisco where I work. Jeremy represents criminal, juvenile, and mental health defendants on appeal.

Mike is a lecturer in law at Stanford Law School, where he helped found a new criminal defense clinic devoted to appellate and post-conviction litigation.  Mike also works on state and federal criminal and civil rights cases with the law firm Riordan & Horgan in San Francisco.

Straight to En Banc

In a rare move, the Ninth Circuit sua sponte ordered pre-emptive en banc review in a pro se state habeas case from Arizona. (Frantz v. Schriro, No. 05-16024.)  When the court orders en banc review before a three-judge panel even hears the case it’s usually because the panel initially assigned (here: Graber, McKeown, Tallman) encountered an unavoidable and irreconcilable split in inter-circuit authority.  Karl Adolph Frantz represented himself at his 1999 trial for attempted armed robbery and at some point was excluded from a bench conference about a 911 tape played for the jury.  The state court found no error, but the Ninth Circuit isn’t satisfied.  In an order issued today, the court asked for briefing on what to do if the state court reached the right conclusion for the wrong reasons.  The conflict appears between Van Lynn v. Farmon, 347 F.3d 735, 741 (A federal court may not “posit[] an alternatie reason for the state court’s decision”) and Hernandez v. Small, 282 F.3d 1132, 1140 (“the state court’s analysis need not concern us; what matters is . . . the decision[.]”).

Prop 36 Available For Defendants Already On Probation For Non-Qualifying Offenses

Today, Division One of California's Fourth District Court of Appeal resolved a contested Prop 36 placement in favor of the defendant's eligibility. In this case, the People filed a writ petition seeking to set aside the trial court's order placing the defendant on Prop 36 probation. The government argued that the defendant was ineligible for Prop 36 because he was already on probation for domestic violence and battery offenses. The Court of Appeal disagreed and denied the People's writ petition. It held that a defendant who is found to have committed a nonviolent drug possession offense (NDPO) is eligible to be placed on Prop 36 probation, even if, at the time of the commission of the NDPO, he was already on probation for other, non-qualifying offenses. In doing so, the Court of Appeal distinguished the situation currently before it from earlier cases in which defendants were incarcerated for non-qualifying offenses at the time they were sentenced for the NDPO and, as a result of being incarcerated, were incapable of complying with the strict treatment requirements imposed by Prop 36. Here, the defendant was not incarcerated at the time of his sentencing. Therefore, his existing probation for non-qualifying offenses did not make it inevitable that he would be unable to comply with the applicable conditions of probation under Prop 36.

The unanimous decision was authored by Justice James A. McIntyre.

People v. Superior Court (Edwards), no. D049026 (Cal.Ct.App. (4th Dist., Div. 1) filed 1/4/07)

Cal. Sup. Ct. Grants Pro Per Habeas OSC

The only other criminal-related order of note yesterday from the California Supreme Court was an OSC issued in a non-capital pro per habeas case: In re Voelker, no. S147515. The Court directed the First Appellate District (Div. 1) to vacated its denial of habeas relief and issue an OSC returnable to the superior court, directing the state to " show cause ... why petitioner is not entitled to relief based on ineffective assistance of trial counsel for failing to call petitioner to testify at trial."

Review Granted - Possible 654 Issue

Yesterday, the California Supreme Court granted the Attorney General's petition for review in People v. Cuevas, no.S147510. Unfortunately, the docket has an incorrect entry and it is not apparent what the issue is for review.

The Court of Appeal had held, in a published opinion, "We agree with his argument that the aggregate sentence imposed by the trial court, which was less than the maximum of which he was advised,  violates section 654 in several respects. We reject his contention that the court violated Blakely v. Washington (2004) 542 U.S. 296 (Blakely), by including upper term and  consecutive sentences that were based on facts neither admitted by him nor submitted to a jury." The Court of Appeal held that section 654 bars multiple punishment for taking both store and personal property from the same store-clerk robbery victim. The issue on review surely relates to the 654 rulings, not the Blakely issue.
 

Dismissal Not Required After Three Years In Deferred Entry Of Judgment Program

Although a criminal defendant may not be placed in a deferred entry of judgment (DEJ) program for a period that exceeds three years, California's Fifth District Court of Appeal concluded that the dismissal of a charge or charges against a defendant in a DEJ program is triggered by the successful completion of a drug treatment program and not by the mere passage of three years.

The unanimous decision was authored by Justice Betty L. Dawson.

People v. Popular, no. F049564 (Cal.Ct.App. (5th Dist.) filed 1/3/07)

Cal. Supremes Affirm Death Sentence

In an opinion authored by Justice Moreno, the Court unanimously affirmed the guilty plea and death sentence in People v. Williams (no. S056391, Cal. Supreme Court, filed Dec. 28, 2006.)  Justice Corrigan filed a brief concurring opinion, joined by Justices Baxter and Chin, in which she expressed caution regarding the majority's Wheeler/Batson analysis.  While she agreed with the majority's assumption, without deciding, that Miller-El compels a comparative analysis of the cold record on review of a Wheeler/Batson challenge, Justice Corrigan voiced concern that a cold record record review is a particularly questionable method of protecting the right to an unbiased jury.

New Year - New Look - New Faces

The new year brings some changes here. As for the new look, nothing radical, but hopefully it's refreshing. Of particular interest, might be the new buttons at the top of the right side bar. These are simply links to three of the most general categories and the separate circuit-split page. Note that "opinions" is a new category, so clicking that button/link won't retrieve all old opinion summaries. But in the near future it will generate many posts. As for the new "faces," in 2007 I'm joined by two other attorneys who will be posting regularly: Michael Romano, who has already posted a few times, and Jeremy Price, who will be starting shortly. This means more regular coverage of new opinions, review grants, and other post-conviction/appellate happenings. It also means fresh perspectives. Shortly, I'll post some background info on the new contributors.

P.S. I'm looking into why some of the design changes I made didn't take, or took differently, in different browsers.

Ninth Circuit Takes Arizona Death Case En Banc

The Ninth Circuit has voted to rehear en banc a capital habeas case from Arizona (Comer v. Schriro, No. 98-99003) in a likely retreat from its original three-judge panel decision, which granted relief and vacated the petitioner’s death sentence over the objection of the petitioner himself. Almost exactly 20 years ago, Robert Comer kidnaped, raped, and murdered campers in an Arizona campground. Comer opted not to attend the guilt phase of his 1987 trial, but he appeared for sentencing—shackled to a wheelchair, naked except for a cloth over his genitals, bleeding, and barely conscious. After winding through state and federal courts, and while his habeas case was pending before the Ninth Circuit, Comer sent letters (scroll down here) to the state judge who presided over his trial and the Arizona Attorney General saying he wanted to abandon his appeals because "little jews are getting rich" off his case and he wanted get the "show" over with, "Ha Ha Ha."  In 2000, the Ninth Circuit ordered the district court to hold a competency hearing. This September, a three-judge panel unanimously agreed with the district court that Comer was competent to withdraw his appeal—yet Judge Ferguson, writing for himself and Judge Pregerson, nonetheless held that Comer’s death sentence shocked the conscience and violated due process: "We cannot conceive of any reasonable justification . . . for escorting a naked and bleeding defendant into a courtroom for a capital sentencing hearing." Dissenting, Judge Rymer could not not conceive of any reasonable justification for vacating Comer’s death sentence against Comer’s own wishes.