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)

Cal. Supremes Affirm Death Sentence

In a unanimous opinion authored by Justice Kathryn M. Werdegar, the California Supreme Court upheld the defendant's death sentence. The Court identified one error at trial - the trial court’s decision to strike, at the prosecutor’s request, a question and answer on cross-examination of a defense expert - but concluded the error was harmless.

People v. Bell, no. S038499 (Cal. Supreme Ct., filed 2/15/07)

No Fundamental Right To Incest With Adult Daughter

A special Valentine's Day ruling:

Relying on Lawrence v. Texas (2003) 539 U.S. 558, the defendant contended that his incest conviction violated his Fourteenth Amendment due process rights because the statute criminalizes sexual intercourse between consenting adults. Division Two of California's Fourth District Court of Appeal disagreed, finding incest distinguishable from the criminalization of sodomy between consenting members of the same sex.

The Court concluded that there is a rational basis for criminalizing incest, specifically between consenting adults of the opposite sex who are related by consanguinity (e.g., fathers and daughters). Prohibiting incest, according to the Court, serves the state’s legitimate interest in protecting against inbreeding, as well as its legitimate interests in protecting the integrity of the family unit and protecting persons who may not be in a position to freely consent to sexual relationships.

The Court of Appeal did, however, remand for resentencing in light of Cunningham, as the defendant was sentenced to the upper term without the taking of an on-the-record waiver of his right to a jury trial on the factors in aggravation.

The unanimous opinion was authored by Justice Jeffrey King.

People v. Scott, no. E039093 (Cal.Ct.App. (4th Dist., Div. 2) filed 2/14/07)

Prosecution Explanation Not Required In Response To Batson/Wheeler Motion In The Absence Of A Prima Facie Case Of Group Bias

The defendant in this case, who was African-American, brought a Batson/Wheeler motion during voir dire after the prosecuting attorney exercised three of four peremptory challenges to excuse African-American prospective jurors. California's Third District Court of Appeal concluded that it was proper for the trial court to require explanations for only two of the three prospective jurors who were the subject of the defendant’s motion.

A trial court may properly determine as to a particular prospective juror that the facts do not permit an inference of discrimination, even as it makes a contrary determination with respect to other prospective jurors. Having determined the facts did not support an inference of discrimination against the third juror in question, the trial court did not err in failing to seek the prosecutor’s reasons for challenging that juror.

The unanimous opinion was authored by Justice Vance W. Raye.

People v. Phillips, no. C050503 (Cal.Ct.App. (3rd Dist.) filed 2/14/07)

Victim Statements In Response To Police Questions Spontaneous And Not Testimonial

The trial court here admitted the victim's statement to the police as spontaneous statements. Division Four of California's Second District Court of Appeal rejected the defendant's argument that the victim's statements were not spontaneous because they were the product of detailed police questioning. While one of the officers spoke to the victim for about five minutes and asked more questions than the other officers, the Court of Appeal found that the evidence supported the trial court’s finding that the victim’s answers were nonetheless spontaneous. According to the Court, the statement remained spontaneous because the victim was having difficulty providing more than one word answers, thus necessitating more extensive questioning. In addition, the Court noted that while the victim was being questioned, "there is little doubt that the pain she experienced and the concerns she had for her wellbeing precluded any motive to give a false account of what had occurred."

The Court then evaluated the admissibility of the statements under the Sixth Amendment's Confrontation Clause and concluded that the victim’s statements were neither testimonial nor the product of a formal police interrogation. First, the officers encountered the victim during an ongoing emergency. Second, the officers’ conversations with the victim were brief and initiated to enable police assistance to meet an ongoing emergency. Third, in the Court of Appeal's view, the statements were not taken under the calm circumstances of a formal interrogation.

The unanimous opinion was authored by Justice Steven C. Suzukawa.

People v. Pedroza, no. B189682 (Cal.Ct.App. (2nd Dist., Div. 4) filed 2/13/07)

Defendant's Due Process Rights Were Violated When He Received Misinformation From The Court And Prosecutor Regarding Behavior Credits Available Under Plea Bargain

Division One of California's Fourth District Court of Appeal reversed the defendant's convictions because both the court and the prosecutor misinformed him regarding his eligibility for good behavior credits under a plea bargain offered by the prosecution, thereby violating his right to due process. According to the Court, tthe record disclosed that the defendant would have accepted the plea bargain if he had known that he would in fact be eligible to receive 50 percent credit, rather than 15 percent credit, as he was informed by both the judge and the prosecutor. The Court therefore vacated the judgment and remanded the matter to the trial court.

While the Court reversed for the reason discussed above, it declined to grant relief in another area of interest. At his arraignment, the defendant waived his right to be represented by counsel, choosing instead to represent himself. At that time, the judge who conducted the arraignment appointed advisory counsel to assist the defendant in preparing his case. On the day originally set for trial, the judge who was assigned to try the case relieved the attorney who was serving as advisory counsel to the defendant, sua sponte, commenting that he did not believe the defendant had a right to the assistance of advisory counsel.

The Court of Appeal concluded the trial court erred in reconsidering and effectively reversing the order of another judge appointing advisory counsel for the defendant, who was representing himself. Nevertheless, the Court of Appeal determined that the trial court's decision to relieve advisory counsel did not violate the defendant's Sixth Amendment rights because he did not establish that he was prejudiced by the court's decision to relieve his advisory counsel.

The unanimous opinion was authored by Justice Cynthia Aaron.

People v. Goodwillie, no. D046757 (Cal.Ct.App. (4th Dist., Div. 1) filed 2/9/07)

California Supreme Court Rejects Public Official's Attempt To Defend Against Criminal Charges By Relying On The Legal Advice Of A Subordinate Government Attorney

The California Supreme Court granted review in this case to consider two issues: 1) whether, on appeal from a pretrial dismissal, the People may obtain review of a ruling that assertedly rendered them unable to proceed; and 2) whether the entrapment by estoppel defense is available against a charge of holding a financial interest in a contract made by the public agency of which one is a member.

After answering the first question in the affirmative, the Court turned to the entrapment by estoppel defense, which rests on the premise that the government may not actively provide assurances that conduct is lawful, then prosecute those who act in reasonable reliance on those assurances. In this case, the defendant, an executive branch official, raised the defense that she relied on the legal advice of the City Attorney in taking the action that led to the charges against her.

The Supreme Court declined to extend the entrapment by estoppel defense to public officials who seek to defend conflict of interest accusations by claiming reliance on the advice of public attorneys charged with counseling them and advocating on their behalf. According to the Court, recognizing entrapment by estoppel in such circumstances is antithetical to the strong public policy of strict enforcement of conflict of interest statutes and the attendant personal responsibility demanded of our officials. The Court declared the defense particularly inapplicable here where the City Attorney was a subordinate of the defendant.

The unanimous opinion was authored by Justice Carol A. Corrigan.

People v. Chacon, no. S125236 (Cal. Supreme Ct., filed 2/08/07)

Defendant's Statements To Officers While Sedated After Surgery In The ICU Deemed Voluntary

Division Seven of California's Second District Court of Appeal held that it was not error of constitutional dimension to admit statements the defendant made to officers who interrogated him in the intensive care unit of the hospital while he was recovering from surgery he had undergone five days earlier and heavily sedated with narcotic pain medications. The Court of Appeal distinguished the case before it from Mincey v. Arizona (1978) 437 U.S. 385, in which the United States Supreme Court suppressed as involuntary a statement made by a defendant only hours after surgery while going in and out of consciousness who repeatedly asked for a lawyer and for the interrogation to end.

The Court acknowledged that the defendant appeared to the investigating officers to be under the influence of pain medication but noted that "[n]othing on the tape shows appellant’s thinking was impaired by the medications." As evidence that the officers did not employ any psychologically coercive tactics, the Court further pointed out that "[a]t the end of the tape the officers wish appellant good luck and a speedy recovery." Perhaps they should have added "in prison."

The unanimous opinion was authored by Justice Earl Johnson, Jr.

People v. Perdomo, no. B186098 (Cal.Ct.App. (2nd Dist., Div. 7) filed 2/7/07)

Court of Appeal Deems Failure To Introduce Expert Testimony On Intimate Partner Battering IAC And Grants Habeas Relief

Fourteen years ago, a panel of the Second District Court of Appeal rejected the defendant's contention that the failure of her trial counsel to introduce expert testimony on intimate partner battering and its effects constituted ineffective assistance of counsel. Therefore, it affirmed her conviction for second degree murder of her abusive husband.

Three years later, the California Supreme Court held imperfect or unreasonable self-defense is not a defense but a lesser offense included in the crime of murder. As a result, trial courts must now instruct the jury the People have the burden of proving beyond a reasonable doubt the defendant was not acting in imperfect self-defense whenever the record contains substantial evidence from which the jury could reasonably conclude the defendant was guilty only of voluntary manslaughter.

The following year, the California Supreme Court held expert testimony concerning intimate partner battering and its effects, expressly made admissible in criminal actions by Evidence Code section 1107 as of January 1, 1992, was relevant in a murder case to the determination of both the subjective existence and objective reasonableness of a defendant’s belief in the need to defend herself or himself.

In light of these developments, defendant filed a petition for a writ of habeas corpus. The Second District Court of Appeal reconsidered its earlier ruling in her case and concluded that the failure of her trial counsel to introduce expert testimony regarding intimate partner battering and its effects (whether or not a reasonable tactical decision) substantially prejudiced her defense. The Court of Appeal agreed that there was a reasonable probability, sufficient to undermine confidence in the verdict, that the result of her trial would have been different (that is, she may have been convicted of voluntary manslaughter rather than second degree murder) had such evidence been presented. Accordingly, the Court of Appeal vacated the 1991 judgment of conviction and remanded for a new trial.

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

In re Walker, no. B190637 (Cal.Ct.App. (2nd Dist., Div. 7) filed 2/5/07)

Fundamental Due Process Error To Reinstate Trial Court Judge Previously Recused For Bias

Division One of California's Fourth District Court of Appeal reversed the defendant's convictions in this case because the Superior Court judge who presided over her trial had previously disqualified himself and was later reinstated into the case.

In pretrial proceedings, the judge recused himself based on his friendship with a judicial colleague whom the defendant was rumored to be stalking. When the prosecution later notified the superior court that it had found no evidence to substantiate these stalking rumors, the supervising judge assigned the case to the disqualified judge for trial, essentially retracting the prior disqualification order. The disqualified judge accepted the assignment over Freeman's objection.

The Court of Appeal held that the defendant may not obtain appellate review under California's statutory disqualification scheme becasue she did not file a petition for writ of mandate at the time of the reinstatement. However, the Court of Appeal determined that she was entitled to review for constitutional due process error.

The Court of Appeal concluded that fundamental due process error occurred when the judge, previously recused for bias, was reinstated into the case notwithstanding the repeated protests of the defendant and under circumstances reflecting a persistent appearance of bias. The judge's reinstatement created a serious likelihood of undermining public confidence in an impartial judiciary, and created an error of constitutional dimension. According to the Court, once a judge has been disqualified for actual bias or the appearance of bias, the public has a right to expect that the judge will have no further dealings with the case except for minor, ministerial-type matters. Because the error affected the integrity of the judicial process, reversal was required.

Justice Judith L. Haller authored the unanimous opinion.

People v. Freeman, no. D046394 (Cal.Ct.App. (4th Dist., Div. 1) filed 2/5/07)

Cal. Supremes Reduce Death Sentence By Two Years

The California Supreme Court affirmed a defendant's death sentence but reversed his conviction for receiving stolen property, relying on the principle that one cannot be simultaneously convicted of receiving and stealing the same property. Thus, the court eliminanted a concurrently imposed sentence of two years. You do the math.

Justice Carlos R. Moreno authored the Court's unanimous opinion.

People v. Smith, no. S035348 (Cal. Supreme Ct., filed 2/05/07)

Defendant's Request for Counsel Used Against Him

The Ninth Circuit rejected a federal habeas petition from a California prisoner who claimed that his due process rights were violated when prosecutors, in order to establish his competency to stand trial, introduced evidence that he exercised his Miranda right to request an attorney.  (Nguyen v. Garcia, No. 05-56596 (Bea, Tashima, Siler).)  In Wainwright v. Greenfield, 474 U.S. 284 (1986), the Supreme Court held that due process forbade prosecutors from introducing a defendant’s post-arrest silence to rebut the defendant’s mitigating evidence of mental deficiency at sentencing.  The Ninth Circuit distinguished Wainwright on the ground that the due process protections at sentencing provided by Wainwright did not necessarily extend to competency hearings.

Anonymous Tip Survives Fourth Amendment Scrutiny

The California Supreme Court held that an anonymous 911 tip contemporaneously reporting an assault with a firearm and accurately describing the perpetrator, his vehicle, and its location is sufficient to justify an investigatory detention. Despite the absence of police corroboration of the criminality alleged in the anonymous tip, the Court affirmed the denial of the motion to suppress because "the Fourth Amendment does not bar the police from taking necessary action to protect public safety in the circumstances of this case."

The majority opinion was authored by Justice Marvin Baxter. Justice Kathryn Werdegar filed a concurring opinion, in which Justice Carlos Moreno joined.

People v. Dolly, no. S134505 (Cal. Supreme Ct., filed 2/01/07)

Reversal For Failure To Instruct The Jury That All Elements Must Be Proved Beyond A Reasonable Doubt

Applying the Chapman harmless error standard, Division One of California's Fourth District Court of Appeal held that because the jury in this case was not instructed that the defendant could not be found guilty unless all of the elements of the charged offense(s) were proved by the prosecutor beyond a reasonable doubt, the defendant was denied his federal constitutional right to a jury verdict of guilty beyond a reasonable doubt and therefore his convictions must be reversed.

In a concurring and dissenting opinion, Justice Alex C. McDonald, agreed that reversal was required but argued that a federal constitutional error in omitting an instruction that the prosecution has the burden to prove each element of a charged offense beyond a reasonable doubt is structural error under Sullivan v. Louisiana (1993) 508 U.S. 275 and is not subject to the harmless error analysis under Chapman.

The majority opinion was authored by Justice Richard D. Huffman and joined by Justice Joan K. Irion.

People v. Flores, no. D047249 (Cal.Ct.App. (4th Dist., Div. 1) filed 1/31/07)

No Certificate, No Good Cause, No Appeal

The defendant in this case filed a notice of appeal purporting to challenge the validity of his plea, but his request for a certificate of probable cause was denied. Defendant then filed an application urging the Court of Appeal to construe or amend the notice of appeal to include a noncertificate ground— that the appeal is based on matters occurring after the plea. Division Five of California's Second District Court of Appeal denied the application, noting that appellant failed to demonstrate good cause, and therefore dismissed the appeal due to the lack of a certificate of probable cause.

The Court denied the application because it found nothing in the appellate record to support a finding that defendant intended to appeal matters occurring after the plea. The only ground for appeal specified was a challenge to the validity of the plea, and the request for a certificate of probable cause complained only of matters alleged to have occurred at the time of arrest, well before the plea.

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

People v. McEwan, no. B193724 (Cal.Ct.App. (2nd Dist., Div. 5) filed 1/30/07)

How To Be An Aider And Abettor AND An Accessory After The Fact

In the published portion of this juvenile delinquency decision, California's Fifth District Court of Appeal held that in order for an accused to be found liable both as an aider and abettor and as an accessory after the fact with respect to the same felony, the acts constituting that felony must have ceased at the time of the conduct that renders him or her culpable as an accessory.

The unanimous decision was authored by Presiding Justice James A. Ardaiz.

In re Malcolm M., no. F049687 (Cal.Ct.App. (5th Dist.) filed 1/30/07)

Upper Term May Be Based On Multiple Victims Even If Only One Victim Was Named In Each Count

The California Supreme Court addressed two issues in this appeal.

First, the Court concluded that a person convicted of gross vehicular manslaughter as an aider and abettor may be subject to an enhancement for fleeing the scene.

Second, the Court held that an upper term sentence may be imposed based upon a “multiple victims” aggravating factor even if only one victim was named in each count. The Court distinguished the recent United States Supreme Court case of Cunningham v. California by noting that in convicting the defendant of two counts of gross vehicular manslaughter and two counts of reckless driving causing bodily injury the jury necessarily found there were multiple victims.

The majority opinion was authored by Justice Carol Corrigan. Justice Joyce Kennard filed a concurring opinion regarding the upper term ruling, in which Justice Kathryn Werdegar joined.

People v. Calhoun, no. S129896 (Cal. Supreme Ct., filed 1/29/07)

California Supreme Court Upholds The Use Of Wiretaps

The California Supreme Court unanimously upheld the legality of the wiretaps at issue in this case, concluding that there was substantial evidence in support of the necessity of the wiretaps. Wiretaps are deemed necessary if normal investigative procedures have been tried and have failed or reasonably appear either to be unlikely to succeed if tried or to be too dangerous. In reaching this result, the Court analyzed the wiretaps under federal statutory wiretap standards, which it noted constiuted the minimum standards for the admissibility of evidence procured through electronic surveillance.

Having found no statutory or constitutional violation, the Court declined to address the "novel questions" presented by the People’s petition for review—namely, whether a defendant who has procured a cell phone under a false name and for a criminal purpose can have a legitimate expectation of privacy in conversations made and received on that telephone within the meaning of the Fourth Amendment.

The unanimous decision was authored by Justice Marvin Baxter.

People v. Leon, no. S137137 (Cal. Supreme Ct., filed 1/25/07)

CA Carjacking Statute Requires Serious Potential For Harm

Division Two of California's Second District Court of Appeal reversed the defendant's carjacking conviction under Penal Code section 215. According to the Court, the purpose of that statute is not served by applying it under circumstances where the victim’s only connection to the stolen automobile was her ability to access the automobile’s keys left in her office of employment. Section 215, the Court reasoned, was designed to address a particularly serious crime that victimizes persons in vulnerable settings and, because of the nature of the taking, raises a serious potential for harm to the victim, the perpetrator and the public at large.

The unanimous decision was authored by Justice Kathryn Doi Todd.

People v. Coleman, no. B186264 (Cal.Ct.App. (2nd Dist., Div. 2) filed 1/23/07)