Criminal Appeal

2254(d) "Contrary To" Prong Explicated

Last week, in Frantz v. Hazey, no. 05-16024 (9th Cir., Jan. 22, 2008) an en banc Ninth Circuit panel clarified how a federal habeas court is to proceed when it finds that a state court decision is contrary to US Supreme Court authority.

Under subdivision (d)(1) of 28 USC sec. 2254, habeas relief is available to a state prisoner who shows that the state court decision is contrary to or constitutes an unreasonable application of US Supreme Court authority. The question for the court was whether habeas relief is available simply upon a showing that the state court applied the wrong constitutional standard. In an opinion authored by Judge Berzon, the court explained that the petitioner, beyond showing that the state court decision was "contrary to" SCOTUS caselaw, must also show an actual constitutional violation. This is because subdivision (a) of section 2254 permits habeas relief only to remedy a violation of the federal constitution (or, rarely, federal laws or treaties). Whether there is such a violation of the federal constitution is a question reviewed de novo, giving no deference to the state court decision because it was contrary to SCOTUS authority. In addition, under this de novo review, the federal habeas court is not limited to the reasoning of the state court, although there are some limitations: (1) the court's "review is confined to the alleged wrong and the actual course of events at trial and on appeal" and (2) "when the constitutional right itself is tied to the
reasons for a trial court’s decision ... even on de novo review we must focus on the trial court’s reasoning to determine whether a constitutional violation occurred."

Ninth Circuit Takes First Step Toward Electronic Filing

Last week, the Ninth Circuit announced that it is beginning implementation of an electronic case management and electronic case filing system (CM/ECF). For now, counsel and parties can elect to receive email notification of docket activity. According to the announcement, "[t]he Court plans to implement full electronic case files (ECF) sometime this summer."

Denial of Motion to Withdraw Faretta Waiver Structural Error

In a serious drug prosecution, the defendant asserted his Sixth Amendment right to represent himself pursuant to Faretta v. California (1975) 422 U.S. 806. During jury selection he changed his mind and asked the trial court to appoint counsel on his behalf. The trial court denied that request as well as a second one.

Although criminal defendants do not have an absolute right to withdraw Faretta waivers and reassert the right to counsel, under the circumstances of this case, Division Seven of the Second District Court of Appeal concluded that the trial court abused its discretion in denying the defendant's requests for counsel on the first day of trial.

The trial court denied the defendant's second request to withdraw his Faretta waiver because it found that the jury had already been selected and sworn, the delay would be disruptive to the codefendant, and the defendant's prior attorney was still engaged in trial and unavailable. The Court of Appeal deemed these reasons insufficient because there was "no indication in this record [the defendant] was attempting to manipulate the right to counsel for any improper purpose. [The defendant's] stated reason for requesting counsel was legitimate: He realized immediately after the proceedings commenced he was incapable of understanding the proceedings and conducting a defense."

Upon finding an abuse of discretion, the Court of Appeal went on to hold that "[b]ecause deprivation of counsel at a critical stage of a criminal trial is federal constitutional error that affects the framework within which the trial proceeds, 'with consequences that are necessarily unquantifiable and indeterminate,' the error is structural and reversal is required without analysis of prejudicial effect." In applying the federal structural error standard found in Sullivan v. Louisiana (1993) 508 U.S. 275, 282, the Court of Appeal rejected the approach adopted by several other California Courts of Appeal that have analyzed the error under the harmless error standard articulated in People v. Watson (1956) 46 Cal.2d 818, 836 for state law errors.

According to the Court of Appeal, "while a violation of the right to the effective assistance of counsel, derived from the Sixth Amendment’s purpose of ensuring a fair trial, generally requires a defendant to establish prejudice, the right to select counsel of one’s choice . . . has been regarded as 'the root meaning of the constitutional guarantee': 'Deprivation of the right is "complete" when the defendant is erroneously prevented from being represented by the lawyer he wants, regardless of the quality of the representation he received.'” Therefore, the denial of the defendant's request to withdraw his Faretta waiver was structural error.

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

People v. Lawrence, no. B193831 (Cal.Ct.App. (2nd Dist., Div. Seven) filed 1/2/2008)

At NGI Extended Commitment Trials Jurors Must Be Instructed On The Issue Of Whether The Person Has Serious Difficulty Controlling Dangerous Behavior

In In re Howard N. (2005) 35 Cal.4th 117, the California Supreme Court held that in order to comport with federal due process principles the extended commitment scheme for minor wards (Welf. & Inst. Code, § 1800, et seq.) must be construed to require proof that the person under commitment has serious difficulty controlling dangerous behavior. Since Howard N. was decided, a number of Courts of Appeal have addressed whether this “control” element applies to not guilty by reason of insanity (NGI) extended commitment proceedings as well.

The First, Third, and Fifth Districts have all concluded that due process compels such a finding at NGI extended commitment proceedings. (People v. Zapisek (2007) 144 Cal.App.4th 1151 [First District]; People v. Galindo (2006) 142 Cal.App.4th 531 [Third District]; People v. Bowers (2006) 145 Cal.App.4th 870 [Fifth District].)

Because all three of these cases involved court trials, none of them offered the occasion to determine whether a corresponding instructional duty in a jury trial existed as well. Division Two of the First District Court of Appeal, however, recently addressed the question of whether instruction on this element is required in a jury trial. In People v. Sudar (A115464), the Court of Appeal held that “the trial court erred in failing to instruct the jury pursuant to Howard N.” that it had to find the insanity acquittee had “‘at the very least, serious difficulty controlling his potentially dangerous behavior.’” The Court of Appeal also concluded that failure to instruct on the “control” element is subject to the Chapman harmless error standard of review applicable to federal constitutional trial errors. Pursuant to that standard, the Court of Appeal found the instructional error in this case non-prejudicial and affirmed the insanity acquittee's extended commitment.

The unanimous opinion was authored by Presiding Justice J. Anthony Kline.

People v. Sudar, no. A115164 (Cal.Ct.App. (1st Dist., Div. Two) filed 12/18/07, ordered published 1/2/2008)

Words May Constitute Sufficient Provocation To Reduce Murder To Manslaughter

In a murder prosecution, the trial court instructed the jury pursuant to CALCRIM no. 917 that mere words cannot establish a defense to battery. In addition, the court allowed the prosecutor to argue to the jury that words cannot legally constitute provocation to reduce a homicide to manslaughter.

While it is a correct statement of the law that words cannot establish a defense to battery, words of abuse, insult or reproach may incite the heat of passion specified in the Penal Code section 192 definition of manslaughter, and therefore may constitute sufficient provocation to reduce the offense of intentional homicide from murder to manslaughter.

In light of these principles, the Sixth District Court of Appeal reversed the defendant's second degree murder conviction, concluding that the combination of the instruction given and the prosecutor's argument to the jury improperly "removed consideration of appellant's confrontation with his wife, and her insulting response, from the jury's evaluation of provocation and its impact on appellant's state of mind." Because consideration of these highly relevant factors may have prevented the jury from convicting the defendant only of voluntary manslaughter, the Court of Appeal deemed the errors prejudicial.

The unanimous opinion was authored by Justice Franklin D. Elia.

People v. Le, no. H030808 (Cal.Ct.App. (6th Dist.) filed 12/27/07)

SVP Recommitments and Indeterminate Terms, Take 2

As noted in a previous post, two California appellate courts recently concluded that individuals subject to two-year sexually violent predator (SVP) civil commitments at the time the electorate passed Prop 83 can face the prospect of indeterminate terms upon expiration of their current commitments. In People v. Carroll (F051709), the Fifth District Court of Appeal has reached the same result, noting that to hold otherwise would lead to "absurd consequences." In addition, California Supreme Court recently denied review on this question in People v. Shields.

In Carroll, the Fifth Disrtict Court of Appeal also fended off a few related challenges. The district attorney in that case filed an extended commitment petition before the SVP Act was amended to provide for indeterminate terms. Therefore, the commitment petition sought to impose a two-year commitment. By the time the commitment trial commenced several months later trial, the SVP Act had been amended to provide for indeterminate terms. At that time, the district attorney announced that an indeterminate term would be sought rather than the two-year term identified in the petition. After a court trial, the defendant was committed as an SVP for an indeterminate term. The Fifth District Court of Appeal concluded that the defendant waived any objection to the amendment of the petition by failing to object.

The Court of Appeal did, however, reject two of the defendant's challenges to the petition on the merits. First, the Court of Appeal dispensed with the defendant's due process challenge to the adequacy of the notice he was given on the merits, noting that the "allegations against which Carroll needed to be prepared to defend – most importantly, that he continued to have a current diagnosable mental disorder, by reason of which he was likely to engage in sexually violent criminal behavior in the future – were unaffected by the amendment."

In addition, the Court of Appeal held that because the petition was amended and the trial occurred after the indeterminate term provisions took effect utilization of the newly-added indeterminate term provisions of the SVP Act did not constitute an impermissible retroactive application of the statute.

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

People v. Carroll, no. F051709 (Cal.Ct.App. (5th Dist.) filed 12/27/07)

Traffic Stops and Temporary Operating Permits

A police officer initiated a traffic stop because the vehicle he observed had expired registration tags on its license plates. The officer subsequently discovered drugs in the vehicle and arrested the driver. The driver then brought a Fourth Amendment suppression motion. At the ensuing suppression hearing, the officer testified that he would have stopped the vehicle regardless of whether he saw a temporary operating permit displayed on the vehicle. The defense offered testimonial and documentary evidence that a temporary operating permit was in fact displayed. The trial court denied the suppression motion, noting that it did not find the defendant's testimony regarding the temporary operating permit credible.

Division Two of the First District Court of Appeal reversed the denial of the defendant's suppression motion. In so ruling, the Court of Appeal held that under these circumstances the officer had an obligation to at least look for a valid temporary operating permit as he followed the vehicle in question. Without doing so, the officer could not have formed a reasonable suspicion that the vehicle was not properly registered.

The Court of Appeal, however, was quick to limit the scope of its holding. It did not hold that officers who observe expired registration tabs have an affirmative duty to look for an operating permit prior to conducting a traffic stop. Thus, it appears the Court of Appeal was particularly troubled that the officer in this case would have stopped the vehicle regardless of whether he saw a temporary operating permit displayed on the vehicle. In addition, the Court of Appeal rejected the defendant's appellate contention that, as a matter of law, an officer who stops a vehicle with expired registration must check for the temporary operating permit as soon as the stop is affected, and release the vehicle as soon as he determines that a temporary operating permit is in place.

The unanimous opinion was authored by Presiding Justice J. Anthony Kline.

People v. Dean, no. A115164 (Cal.Ct.App. (1st Dist., Div. Two) filed 12/21/07)

California appellate courts have wrestled with a number of different fact patterns involving traffic stops and temporary operating permits of late. However, the question of whether an officer may stop a vehicle that has an expired registration tab but also displays a temporary operating permit remains an open one. The California Supreme Court has granted review in two somewhat similar cases though. In People v. Hernandez (S150038) and In re Raymond C. (S149728), the Supreme Court will address the following issue: "If a police officer sees that a motor vehicle lacks a rear or both license plates, may the officer make a traffic stop to determine if the vehicle has a temporary permit or if a displayed temporary permit is a valid one?"