Criminal Appeal

Is Waiver Waivable? - Split Decision From Ninth Circuit

U.S. v. Castillo (9th Cir. Sept. 22, 2006)

In a 2-1 opinion authored by Judge Beezer (and joined by Judge Tallman) the Ninth Circuit held that an appeal from the denial of a motion to suppress must be dismissed when the defendant has entered an unconditional guilty plea, even if the government has not raised the jurisdictional defect. In contrast, the government can waive a claim that an appeal should be dismissed because the taking of the appeal conflicts with a waiver of appellate rights that was a term of a plea agreement.

Judge Bybee dissented, finding the two situations indistinguishable and suggesting that only the en banc court could hold as the majority did.

No Cert. Review from State Court Cases from Guam

Santos v. Guam, no. 03-70472 (9th Cir. 1/3/06)

On October 30, 2004, Congress amended 48 U.S.C. § 1424-2, stripping the Ninth Circuit of its jurisdiction to conduct discretionary review of decisions from the high court of Guam. That amendment required dismissal of the pending appeal, despite the fact that it did not take effect until after the pending case was argued in the Ninth Circuit.

Chapman Applies to Erroneous Burden of Proof Instruction at Competency to Stand Trial Hearing; State Can Challenge Unauthorized Sentence In Defendant's Appeal. People v. Johnwell, no. F041899 (Cal.Ct.App. (4th Dist.), Aug. 30, 2004).

Competency Proceedings.

Error. Court erred in giving modified version of CALJIC No. 2.01 (sufficiency of circumstantial evidence – generally), at competency trial. The court agreed this was error because it raised the defendant's burden above the preponderance standard:

By adding its modified version of CALJIC No. 2.01, however, the trial court effectively placed on defendant the burden not only of producing evidence of his incompetence that was more convincing than not, but also the additional burden of disproving every rational conclusion and reasonable interpretation of the evidence except that which pointed to incompetence. That burden conflicts with, and is higher than, the preponderance standard dictated by California’s competency scheme (§ 1369, subd. (f)) and sanctioned by the United States Supreme Court (Medina v. California, supra, 505 U.S. at pp. 446-453). Accordingly, and considering the instructions as a whole (see People v. Smithey (1999) 20 Cal.4th 936, 963), the giving of the modified version of CALJIC No. 2.01 at defendant’s competency trial constituted error.

Prejudice. Although the right to a jury trial on competency is a state statutory right only (i.e. no constitutional right), the error, nevertheless is reviewed for prejudice under standard for constitutional error (Chapman) because the error affects the constitutional right not to be tried when incompetent.
Relief: If, upon remand, a doubt arises as to his present competence to stand trial, the trial court shall proceed as set out in section 1368 et seq. If no such doubt arises or upon such time as defendant is found competent to stand trial, and assuming the People elect to retry him, a new trial on the issue of guilt shall be held.
Sentencing Error
State can challenge unauthorized sentence in defendant's appeal, without separately appealing. Striking of special circumstance finding was unauthorized.