Criminal Appeal

Changing of the Guard at the Ninth Circuit

Last week, very close watchers of the Ninth Circuit may have witnessed the aftermath of a battle between two extremes of the court’s political spectrum and perhaps a changing of the guard.

Last October, Judge Reinhardt wrote an opinion joined by Judge Paez that reversed the conviction of an Arizona man arrested for illegal possession of a firearm following a traffic violation.  (USA v. Mendez, No. 05-10205.)  The majority reasoned that police officers conducting the traffic stop unreasonably strayed from the initial purpose of the stop when they began asking the defendant questions about his gang affiliation—questions that eventually resulted in discovery of the firearm. “[The defendant’s] Fourth Amendment rights were violated when he was subjected to interrogation by the officers that exceed the scope of the traffic stop,” Judge Reinhardt explained.

Judge Tallman issued a 15-page dissent. “Here we go again,” he began.  Judge Tallman chastised Judges Reinhardt and Paez for ignoring arresting officers' legitimate interest in protecting their own safety during a stop.

Fast-forward to last Friday, when a new unanimous opinion authored by Judge Reinhardt was unexpectedly issued in the same case, vacating the original panel opinion, and affirming the conviction below.  This time, Judge Reinhardt says the defendant “understandably” relied on Ninth Circuit law that arresting officers may only ask detained suspects questions “reasonably related in scope” to the original justification for the police intervention, i.e. the very Ninth Circuit precedent the panel majority relied on last October.  But Judge Reinhardt then held that this precedent was overruled two years ago by the Supreme Court in Muehler v. Mena, 544 U.S. 93 (2005).  Under Muehler, Judge Reinhardt explained, “mere police questioning” does not constitute a seizure for Fourth Amendment purposes and therefore no reasonable suspicion is required for any police question that does not prolong an otherwise legitimate stop.

Judge Reinhardt offers no explanation for his change of heart.  But the writing on the wall is obvious:  His original opinion was about to be recalled by an ever more conservative majority of his colleagues and reheard en banc, only to be rewritten by someone of the likes of Judge Tallman.  Rather than stick to his guns and risk an en banc vote, or even giving Judge Tallman the satisfaction of rewriting the three-judge panel opinion, Judge Reinhardt exercised his seniority and did it himself.  Perhaps, in his mind, he could then limit the damage to the Ninth Circuit’s Fourth Amendment precedent that he helped craft in the first place. 

Crawford Not Retroactive

As reported on SCOTUSblog and Sentencing Law & Policy, the Supreme Court unanimously held today that Crawford, the 2004 decision reforming the test for admission of testimonial statements of unavailable witnesses, does not apply retroactively to cases already final on direct review when Crawford was decided. The Court held that Crawford announced a new rule because it was not dictated by prior precedent. But the Court went on to hold that it was not a "watershed" rule and, thus, does not apply retroactively. View the opinion in Whorton v. Bockting, no. 05–-595, here (courtesy of SCOTUSblog).

Folks commenting at Sentencing Law & Policy already are suggesting this decision portends that the Court will similarly hold that Blakely is not retroactive. I tend to agree that the Court is unlikely to find any new rule to be a "watershed" rule and Whorton makes that clear. But, in contrast to Crawford, the Court is much less likely to hold that Blakely announced a new rule. While Crawford might not have been dictated by prior precedent, there's a very strong argument that Blakely was dictated by Apprendi. If the Court finds that Blakely did not announce a new rule, the Apprendi/Blakely rule would be applicable to all cases not yet final on direct review when Apprendi was decided in June of 2000.

Victim Restitution Amounted To Increased Punishment In Violation Of Defendant's Plea Agreement

Pursuant to a plea agreement, appellant was convicted of one felony count of assault with a deadly weapon. Division Three of California's First District Court of Appeal held that the trial court violated the terms of appellant's plea agreement by ordering her to pay over $34,000 in victim restitution for amounts paid by the California Victim Compensation and Government Claims Board to the hospital that treated the assault victim. According to the Court of Appeal, appellant must be afforded the opportunity to withdraw her plea because the trial court imposed a punishment more severe that that specified in the plea agreement. The Court noted that if appellant chooses not to withdraw her plea, on remand the trial court must consider whether compelling and extraordinary reasons justify awarding less than full victim restitution.

The unanimous opinion was authored by Presiding Justice William R. McGuiness.

People v. Brown, no. A111490 (Cal.Ct.App. (1st Dist., Div. 3) filed 2/22/07)

At MDO Extended Commitment Hearings, Defendants May Not Relitigate The Issue Of Their Mental State At The Time Of The Underlying Offense

The Board of Prison Terms (BPT) determined that appellant suffered from a severe mental disorder and, that as a condition of his parole, he be treated by the Department of Mental Health as a Mentally Disordered Offender (MDO). Appellant waived his right to a hearing to contest that determination and was therefore commmitted as an MDO for one year. When the BPT petitioned to extend his MDO commitment for another year, appellant sought to contest the issue of his mental state at the time of the commission of the underlying offense.

Division Six of California's Second District Court of Appeal held that once the initial commitment expired, appellant was collaterally estopped from relitigating the issue of his mental state at the time of the underlying offense. At the extension hearing, appellant could only contest the MDO criteria addressed to the current state of his mental disorder. According to the Court of Appeal, even though issues relating to his mental state at the time of the underlying offense were not actually "litigated" because appellant did not petition for a hearing during his initial commitment, preclusive effect is also given to issues that could have been litigated in a prior proceeding.

The unanimous opinion was authored by Justice Steven Z. Perren.

People v. Merfield, no. B190093 (Cal.Ct.App. (2nd Dist., Div. 6) filed 2/21/07)

NGI Commitment Extensions Require Proof Of A Serious Difficulty Controlling Dangerous Behavior

Pursuant to a court trial, appellant's not guilty by reason of insanity ("NGI") commitment was extended for an additional two years. On appeal, appellant argued that federal due process standards required the prosecution to establish that he had serious difficulty controlling dangerous behavior. The Attorney General argued that such a showing was not required in NGI extended commitment proceedings because such proceedings involved cognitive rather than volitional mental disorders.

Relying on California and United States Supreme Court civil commitment jurisprudence, Division Two of California's First District Court of Appeal disagreed with the distiction advanced by the government and held that in order to extend an NGI commitment the prosecution must prove that the person has a serious difficulty controlling dangerous behavior.

Neverthless, the Court of Appeal upheld the extended commitment, as it concluded there was substantial evidence that appellant had such a serious difficulty.

The unanimous opinion was authored by Justice James R. Lambden.

People v. Zapisek, A113074 (Cal.Ct.App. (1st Dist., Div. 2) filed 2/22/07)

Untimeliness Of NGI Extended Commitment Petition Merits Dismissal

Less than two weeks before appellant's not guilty by reason of insanity ("NGI") commitment was set to expire, the district attorney filed an extended commitment petition. The district attorney is required by statute to file the petition at least 90 days before the expiration of the current term of commitment.

Division Five of California's First District Court of Appeal concluded that the trial court erred when it denied appellant's motion to dismiss the commitment petition as untimely. Because the petitition was filed so late, appellant was not given adequate time to prepare for trial before his commitment expired. He therefore was prejudicially forced to choose between proceeding to trial without adequate preparation or remaining in custody past the date on which he normally would be released. Accordingly, the Court of Appeal concluded that the trial court should have granted appellant's motion to dismiss the petition.

Curiously, however, the Court of Appeal declined to comment on the effect its ruling should have on the fact that while his appeal was pending a jury once again extended appellant's commitment for an additional two years. Given the invalidity of the commitment at issue in the current appeal, it would seem there was nothing to extend in the more recently completed proceeding. Thus, a new motion to dismiss appears imminent in the trial court.

The unanimous opinion was authored by Presiding Justice Barbara Jones.

People v. Price, A111081 (Cal.Ct.App. (1st Dist., Div. 5) filed 1/26/07; published 2/20/07)

Preponderance Of The Evidence Standard Applies To Final Step Of Wheeler/Batson Analysis

The trial court denied the defendant's Wheeler/Batson motion because it did not find proof of racial discrimination in the People’s utilization of the peremptory challenges by clear and convincing evidence.

Division Four of California's Fourth District Court of Appeal concluded that the preponderance of evidence standard - and not the clear and convincing evidence standard - applies to the final step of a Wheeler/Batson challenge: whether the neutral reasons offered to justify a peremptory challenge are genuine or pretextual.

Becuase the trial court applied the wrong standard in making its ruling, the Court of Appeal remanded so that the trial court may reconsider the third Batson step under the proper legal standard.

The unanimous decision was authored by Presiding Justice Norman L. Epstein.

People v. Hutchins, no. B187104 (Cal.Ct.App. (2nd Dist., Div. 4) filed 2/20/07)

Contact With Jurors After Verdict Not A Critical Stage Of The Proceedings

The defendant in this case argued that he and defense counsel were absent at a critical stage of the proceedings when the trial court arranged for the jury to secretly leave the building after the verdict was rendered, violating his constitutional right to due process of law. He further alleged that Code of Civil Procedure section 237, which governs the right of jurors to refuse to discuss the case, violates substantive due process by depriving him of an impartial jury.

Division Five of California's Second District Court of Appeal rejected the defendant’s due process claim based on his absence at a critical stage of the proceedings because the issue was not raised in the trial court, the decision to allow the jury to leave through a nonpublic exit was not a critical stage of the proceedings, and any error in connection with the decision was nonprejudicial.

The Court also held that his substantive due process claim fails because there is no historical right to question jurors regarding their verdict and there is no hint of jury misconduct in the record.

The unanimous opinion was authored by Justice Sandy R. Kriegler.

People v. Santos, no. B187213 (Cal.Ct.App. (2nd Dist., Div. 5) filed 2/20/07)

Once Pronounced, A Sentence Cannot Be Altered

In this case, the trial court initially imposed sentence on the defendant, including the requirement that he register as a sex offender pursuant to Penal Code section 290. The court also placed the defendant on probation, and suspended execution of his sentence. California's Sixth District Court of Appeal held that once sentence has been imposed by the court, as it was in this case, it cannot later be changed. Therefore, the Court of Appeal reversed the trial court’s order vacating the defendant's requirement to register as a sex offender.

The unanimous opinion was authored by Presiding Justice Conrad L. Rushing.

People v. Garcia no. H029019 (Cal.Ct.App. (6th Dist.) filed 2/16/07)

DUI Involving Cross-Border Conduct May Be Prosecuted In Both Nevada and California

In considering whether a California prosecution is barred by a prior conviction or acquittal in another jurisdiction under Penal Code section 656, courts look solely to the physical acts necessary for conviction in each jurisdiction. If proof of the same physical act or acts is required in each jurisdiction, then the California prosecution is barred. However, if the offenses require proof of different physical acts, then the California prosecution is not barred even though some elements of the offenses may overlap.

California's Third District Court of Appeal concluded that here, where the defendant was prosecuted in Nevada for DUI resulting from a car chase in which he originally eluded officers on the California side of the border, the physical acts defendant committed in California are not the same physical acts he committed in Nevada. According ot the Court of Appeal, his California crimes were complete, and came to an end, when he entered Nevada. His actions in California were neither necessary nor sufficient to prove his Nevada offenses, and his actions in Nevada were neither necessary nor sufficient to prove his California offenses. Even though defendant engaged in a continuous course of conduct during which he first violated laws of California and then violated laws of Nevada, California’s Supreme Court has rejected a course-of-conduct rule for the application of section 656.

Therefore, the Court of Appeal reversed the order of the trial court dimissing the complaint against the defendant and directed the trial court to reainstate the complaint.

The unanimous decision was authored by Presiding Justice Arthur G. Scotland.

People v. Bellacosa, no. C049291 (Cal.Ct.App. (3rd Dist.) filed 2/15/07)