Criminal Appeal

Cal. Supremes to Hear Argument today on Forfeiture-by-Wrongdoing Exception to Crawford

The California Supreme Court (sitting in L.A.) will hear arguments in six cases today. On the calendar are three criminal cases, including People v. Giles, no. S129852, in which the Court will decide whether a forfeiture-by-wrongdoing exception applies to confrontation clause claims, i.e. does a criminal defendant forfeit a confrontation clause objection to an unavailable declarant's out-of-court statement when the the declarant is unavailable due to the defendant's wrongful conduct. The Court will consider the more specific question of whether the exception applies when it is the very conduct for which the defendant is on trial that forms the basis for the forfeiture, i.e. the defendant is on trial for the murder of the declarant and it's the homicide that made the declarant unavailable. In Crawford itself and last term in Davis v. Washington, no. 05-5224 (June 19, 2006), SCOTUS made clear that such a forfeiture doctrine does apply, but the Court did not address the difficulties of litigating the forfeiture question when doing so requires the defendant to defend the criminal charges themselves.

The state is represented by Deputy Attorney General Russell A. Lehman; Marilyn G. Burkhardt represents Giles.

There are two other criminal cases on the calendar today:

• People v. Leon, S137137: (1) Does a defendant have a legitimate expectation of privacy in telephone conversations on a telephone procured under a false name and was used for criminal purposes? (2) Does Cal. Penal Code section 629.72 create a broader right to challenge the admission of communications intercepted by such a wiretap than that afforded by the Fourth Amendment? (3) What showing of necessity is required for issuance of a wiretap in conspiracy cases?
• People v. Navarro (Horacio), S132666: If evidence was insufficient to support attempted kidnapping during a carjacking, can Court of Appeal modify the judgment to reflect conviction of two lesser included offenses—attempted kidnapping and attempted carjacking—or only one such offense?

Cal. Supreme Court Jan. Calendar

This month, on January 10, the Cal. Supreme Court will hear argument in San Francisco. This will be Associate Justice Corrigan's first day on the bench, but much will be familiar. The courtroom will be the same one she has sat in for several years as an associate justice in the First Appellate District. Two civil cases on the calendar come from her former court (from Divisions Four and Five, so there there should be no conflict). And one of the two death penalty cases to be argued---People v. Huggins, no. S037006---comes from Alameda County where Justice Corrigan served as both a Superior court judge and a deputy district attorney. 

Argument Week for Cal. Supremes. After two months without hearings, the Cal. Supreme Court resumes hearing arguments this week short a justice. As the calendar shows, court of appeal justices will be sitting by designation, one-case-each, in alphabetical order.

One case of particular interest for criminal appellate and federal habeas practitioners will be People v. Partida, no. S127505, which presents the question of whether a federal due process claim was waived:

1. Did defendant forfeit his federal due process claim on appeal by failing to object on that ground in the trial court?
2. Does the forfeiture exception articulated in People v. Yeoman (2003) 31 Cal.4th 93, 117, apply when the appellate claim is otherwise governed by Evidence Code section 353(a)?
3. Did the admission of testimony from a gang expert violate either Evidence Code section 352 or federal due process?

Arguing for the appellant will be Verna Wefald (counsel for appellant) and Barry Helft (counsel for amicus, Cal. State Public Defender). Deputy Attorney General Laura J. Hartquist represents the state.

Also on the calendar is a knock and notice case.

Late May & Early June Cal. Supreme Court Arguments. Calendars (actually amended calendars) are out for upcoming Cal. Supreme Court arguments. Click the date/city links below for the complete calendars which show dates and times and descriptions for all of the cases on the calendars. There are a few criminal and appellate procedure cases on the calendars:

May 24, 25, 26 (San Francisco):

People v. Carter, nos. S014021 &  S023000; People v. Blair, no. S011636; People v. Gray, no. S104664 (Automatic Appeals in Capital Cases);

People v. Martinez, no. S118180 (can the Department of Toxic Substance Control, which cleaned up a meth site, be considered a victim for purposes of restitution);

In re Josiah Z., no. S125822  (authority of appellate counsel for a minor to abandon the minor's appeal in a child dependency case); 

In re Roberts, no. S112505 (should habeas challenging Board of Prison Terms decision be filed in county of sentencing or county of incarceration)

May 31, June 1, June 2 (L.A.)

People v. Schmeck, no. S015008,  People v. Dunkle, no. S014200, People v. Moon, no. S021054, People v. Harris, no. S058092, People v. Cornwell, no. S046176 (Automatic Appeals in Capital Cases)

People v. Garcia, no. S124003 ("When the jury has visited the crime scene during the  presentation of evidence at trial and then asks to revisit the crime scene during  deliberations, do defendant and his or her counsel have the right, upon request, to be  present at the jury’s revisit to the crime scene?)

That's right, there are a total of eight capital cases on the two calendars.

Juxtaposition. A couple of weeks ago I had the experience of appearing in superior court one day and the court of appeal the next. Oh, so different ...

	Trial Court	Court of Appeal
The Entrance.	Judge enters court room with robe over shoulder, approaches counsel, tells us what her ruling is going to be and commits us to our positions.	Judges file in already-robed, of course, and call the calendar.
The Client.	Client is in holding cell ("the bullpen") next to courtroom.	Client cannot attend; he is in state prison.
The can.	Gritty and exposed: un-enclosed toilet in the holding cell, sheets of toilet paper on the floor.	Fancy and private: motion detector flush toilets.
The substance.	Hearing goes as judge scripted, but her humanity shines through.	Justices ask few questions. I have one very strong argument relating to prior conviction enhancements that should have received some attention. Although their silence suggested disagreement, no questioning on that very strong issue. No interest in even disabusing me of my notions?
Immediate gratrification?	Judge rules from the bench. We learn client, 10.5 actual years into a 30-to-life sentence, is going home that day or the next.	Decision is taken under submission.
Feelings.	Elated.	Flummoxed.
The Release.	11 p.m. client is released from county jail with no funds, but safely makes it to relative's home.
The opinion.		A week after argument, the court issues unpublished opinion rejecting all significant arguments. The reasoning on the strongest issue is essentially that of the attorney general's, but my most significant points to the contrary are not really addressed.
Still at work.		Petition for rehearing pending. (I might win this one.)

Ninth Circuit Arguments at Boalt Hall Tomorrow. Judges Noonan, Thomas & Fisher will be hearing oral arguments at 9:30 a.m. tomorrow at Boalt Hall. Six cases are on the calendar.

Judge Noonan, of course, is quite familiar with Boalt Hall.

This Week at the Cal. Supreme Court. As it is argument week, the California Supreme Court did not grant review in any cases this week.

The Court heard argument in several cases on Tuesday, including People v. Thomas, S118052, which presents this question: when the d.a. prosecutes a juvenile in adult court, "and the juvenile is convicted of an offense listed in Welfare and Institutions Code section 1732.6(b), does a trial court have the authority to order a juvenile disposition other than a commitment to the California Youth Authority?"

You can read descriptions of the other cases argued this week on the calendar.

The Court has also issued its oral argument calendar for March, when argument will be heard in San Francisco. There are a couple of interesting homicide cases on that calendar, including People v. Randle, which presents the question of whether the non-statutory offense of second-degree felony murder survives in California.

U.S. Supreme Court Oct. & Nov. Oral Argument Calendars Available.

October 4, 5, 6, 12, 13
November 1, 2, 3, 8, 9 , 10 (See SCOTUSBlog for summary of issues presented in the Nov. cases.)

Cal. Supreme Court October Argument Calendar Posted. There are five criminal cases on the October calendar, four of those are automatic appeals in capital cases. The four capital cases are:

S033975 People v. Combs (Tues. Oct. 5, 2 pm) (Richard C. Gilman for appellant; Deputy A.G. Sharon L. Rhodes for the state).

S034473 People v. Monterroso (Tues. Oct. 5, 2 pm) (Jerry Whatley for appellant; Deputy A.G. David Delgado-Rucci, for the state).

S023835 People v. Morrison (Wed., Oct. 6, 1:30 pm) (John L. Dodd and Robert Landheer for appellant; Deputy A.G. Juliet H. Swoboda for the state).

S044677 People v. Horning (Wed., Oct. 6, 1:30 pm) (John F. Schuck for appellant; Erik R. Brunkal for the state).

The one non-capital criminal case on the October Calendar is no. S114375, People v. Braxton, (Tues., Oct 5, 2 pm) which presents questions relating to new trial motions:

(1) Was the defendant entitled to a new trial under Penal Code section1202 where the trial court refused to consider defense counsel's motion for a new trial at sentencing? (2) In general, when a trial court initially refuses to consider a new trial motion, must a defendant specifically bring the provisions by that section. (3) Should the Court of Appeal have remanded for a hearing on defendant's new trial motion rather than reversing the judgment granting a new trial?

(Richard Neuhoff represents the appellant; Deputy A.G. Bruce Ortega represents the state.)

The October calendar will be held in Los Angeles.

September Cal. Supreme Court Oral Argument Calendar. The California Supreme Court will hear oral argument next month, on September 8 and 9, in San Francisco.

Death. Three capital cases are on the calendar:

People v. Rodney Jesse San Nicolas, no. S028747 (Sept. 8 at 1:30 p.m.)

People v. William James Ramos, no. S030956 (Sept. 8 at 1:30 p.m.).

People v. Richard Dean Turner, no. S009038 (Sept. 9 at 1:30 p.m.) (Note, Turner has been around for a while. The current appeal is from a 1988 death judgment, and involved contempt proceedings relating to delays by court appointed appellate counsel. Both were held in contempt and each were sanctioned $1,000. One attorney was removed from the case and also ordered to repay over $40,000 in attorney fees. The other attorney successfully obtained rehearing on the contempt finding and the order against him was vacated. The current appeal also follows a previous appeal and special circumstance reversal for Carlos error (People v. Turner (1984) 37 Cal.3d 302 (appeal no. S004326) and involves 1979 offenses. )

Non-Death. Also on next month's calendar are:

People v. Williams, no. S110377 (Sept. 8 at 1:30 p.m.): "Where a defendant is sentenced in two different cases under the three strikes law, can the enchancements for prior serious felony convictions under the Penal Code Section 667, subdivision (a)(1), be imposed on the sentence in each case or only once (see People v. Tassell (1984) 36 Cal.3d 77)?" (Beatrice Tillman of ADI represents the appellant; Deputy A.G. Laura D. Stilwell represents the state.

People v. Seel, no. S106273 (Sept. 9 at 9 a.m.): "When defendant's attempted murder conviction is affirmed but the premeditation findings under Penal Code section 664, subdivision (a), is reversed for insufficient evidence, is retrial of the sentencing allegations barred by the double jeopardy provisions of the federal and state Constitutions?" (Dennis Fischer of San Diego represents the appellant; Deputy A.G. Robert Schneider represents the state.)

People v. Briceno, no. S117641 (Sept. 9 at 1:30 p.m.): The petition for review was filed by the state and presents this question: "Does a felony, which is not otherwise identified in Penal Code section 1192.7, subd. (c), as a serious felony, nonetheless come within that section (and thus qualify as a strike under the three strikes law) whenever there is a finding that the felony was committed for the benefit of criminal street gang (see section186.22, subd. (b)), because the offense is then "any felony offense, which would also constitute a felony violation of Section 186.22" within the meaning of section 1192.7, subdivision (c)(28), or does the quoted language of section 1192.7, subdivision (c)(28), refer only to a gang-related offense that is defined as a substantive felony offense by section 186.22, subdivision (a)?" (Leslie Conrad of Pacific Palisades and Frederick McBride of Santa Ana represent the appellants; Deputy A.G. Ronald Jakob represents the state.)

Note: questions presented are taken from the court's docket.

NOA & Excusal Neglect/En Banc Argument. On June 24, the Ninth Circuit heard en banc argument in Pincay v. Andrews, 02-56577, which presents the question of "What constitutes excusable neglect under Fed. R. App. P. 4(a)(5) for failure to file a timely notice of appeal?"

The panel: Mary M. Schroeder, Alex Kozinski, Pamela A. Rymer, Andrew J. Kleinfeld, Sidney R. Thomas, Barry G. Silverman, M.M. McKeown, Ronald M. Gould, Marsha S. Berzon, Johnnie B. Rawlinson, Consuelo M. Callahan.

Listen to the argument by clicking here (this link works at least for Windows Media Player).

More Cal. Supreme Court Oral Arguments.

This morning: (May 26, 2004)

In re Marriage of Harris, S101836: visitation by grandparents of minor children.

In re Larry Lucas on Habeas Corpus, S050142: Capital case in which court had issued an OSC regarding penalty phase IAC and jury misconduct.

People v. Griffin, S109734: meaning of "force" for purposes of the offense of rape “by means of force” (Pen. Code, § 261(a)(2).

This afternoon (1:30 P.M.)

People v. American Contractors, S120474: bail bond forfeiture.

People v. Leal, S114399: definition of the element of “duress” for purposes of forcible sexual offenses other than rape and spousal rape.

People v. Stephen Cole, S027766 (capital case automatic appeal).

Same-Sex Marriage Case. If you missed it yesterday, you can still listen (via C-Span) to yesterday's oral argument in the same-sex marriage cases.

I listened to portions of it yesterday. Everyone steered clear of the underlying equal protection question. The question considered by the court was the circumstances under which a local official could disregard a state law when the local official determined that federal law rendered the local law unconstitutional. Is a good faith belief in the unconstitutionality of the state law all that is required? Is a county clerk acting is a state official when issuing marriage licenses? The general sense from the bench was that there were other ways to challenge the state law and that it was improper for the county clerk to ignore the state law.

I'm wondering whether the court's opinion in this case could have implications for a local prosecutor's (i.e. S.F.'s) policy of not seeking the death penalty. Of course, there's discretion at play in a decision to seek the death penalty in an individual case, and it's certainly proper for a district attorney to determine that given the difficulty of obtaining a death verdict in her county and the unlikelihood of an actual execution in the near future, that her limited budget should not be spent on expensive capital trials. But a blanket policy based on moral opposition to the death penalty might be more vulnerable.

Tomorrow's Cal. Supreme Court Oral Arguments (in San Francisco).

Tuesday, May 25, 9 a.m.:

Gay (or "Same-Sex") Marriage Cases. Live internet broadcast! (Also broadcast on Court TV, and public access.) Read the briefs. Find out who's arguing.

In re Seaton, no. S067491: capital habeas proceedings presenting question regarding whether issue is cognizable on habeas when it was not preserved for appeal.

Tuesday, May 25, 1:30 p.m.

Kulshresth v. First Union Commercial Corp., no. S115654, which concerns whether an out-of-state declaration satisfies Cal.CodeCiv.Pro. sec 2015.5 if it fails to state it was "certified or declared under the laws of the State of California."

People v. Langston, no. S115998: whether a prior term for escape a "separate" prison term for purposes of Pen. Code sec. 667.5(b).

People v. John George Brown, no. S087243 (automatic appeal following death judgment). This one's been around for a while. In 1988, the court affirmed the conviction and death sentence on direct appeal. In 1998, the Court granted habeas relief for a Brady violation. The current appeal follows a retrial and, again, a judgment of death. Chief Justice George has recused himself because one of his sons once worked for a defense attorney in the case.

Gay Marriage Cases Are Not the Only Cal. Supreme Court Oral Arguments This Week. Here's a brief summary of tomorrow's cases to be heard in San Francisco. (Later posts will cover Tuesday's and Wednesday's arguments.)

Monday, May 24, 9 a.m.:

Bronco Wine Co. v. Jolly, no. S113136, which involves wine labels and federal preemption.

People v. Ault, no. S119948, which involves juror misconduct. The foreperson discussed the case with her manicurist, who related a story about a girl molested by father, which the foreperson passed on to the rest of the jury. In the Court of Appeal, the AG conceded there was misconduct. The question before the supreme court is whether the misconduct was prejudicial.

People v. Robertson, no. S118034, which presents the question of whether the offense of negligent discharge of a firearm may be a predicate offense for second degree felony murder, and, if not, whether so instructing the jury was prejudicial. Arguing for Robertson will be defense attorney Julie Drous.

Monday, May 24, 1:30 a.m.

People v. Montoya, no. S111662: whether the offense of unlawfully taking or driving a vehicle (Veh. Code sec. 10851) is a lesser included offense of carjacking (Pen. Code sec. 215).

People v. Cynthia Lynn Coffman and James Gregory Marlow, no. S011960 (automatic appeal from judgment of death).

May Oral Argument Calendard Posted. The California Supreme Court has posted its calendar for May, 2004. Arguments will be heard on May 4, 5, and 6 in San Francisco.

Tomorrow (Wednesday), the California Supreme Court, sitting in Los Angeles, will hear argument in four cases:

At 9 a.m., the Court will hear argument in:

Nolan v. City of Anaheim, no. S113359, a civil case involving disability retirement benefits.

People v. Jones, no. S103689, which presents the question of whether a trial court may remove a criminal defendant’s appointed counsel, over the defendant’s objection, for a potential conflict of interest? The court will also decide wither such an error is reversible per se. Read the Court of Appeal (3d Dist.) opinion here. Gregory R. Marshall of Palo Cedro represents Jones; Janine Busch of the Attorney General's Office represents the state.

At 1:30 p.m. of Wednesday, the Court will hear argument in:

People v. Arnold, no. S106444 and People v. Jeffrey, no. S105978. According to the court's notice, both cases present the question: "Does a defendant’s waiver of Penal Code section 2900.5 custody credits at the time probation is imposed apply to a future term of imprisonment in the event probation is revoked?" Shama Mesiwala of the Central California Appellate Project in Sacramento represents Arnold; Deputy Attorney General Patrick J. Whalen represents the state in Arnold. Michael McPartland of Palm Desert represents Jeffrey; Deputy Attorney General David Baskind represents the state in Jeffrey.

The above descriptions of issues presented paraphrase or quote the descriptions found in the court's notice of cases to be argued.

Oral Argument Week at the California Supreme Courts. The California Supreme Court will hear arguments this week on Tuesday, April 6, and Wednesday, April 7, in Los Angeles. Read the full notice here.

On Tuesday (April 6), at 9 a.m., the Court will hear argument in three cases:

In re Alva on Habeas Corpus, no. S098928, is a habeas case presenting the questions of whether sex offender registration constitutes punishment for purpose of the state constitutional bar against cruel and unusual punishment, and whether requiring sex offender registration for an offender convicted of misdemeanor possession of child pornography is cruel and unusual. Read the Court of Appeal (2d Dist., Div. 3) opinion here. According to the docket, Alva is represented by Steven Flowers of Los Angeles and the prosecution is represented by Candice Horikawa of the L.A. City Attorney's Office.

Villa De Las Palmas Homeowners Association v. Terifaj, no. S109123, is a civil case presenting questions relating to a homeowner's association restriction on keeping pets.

People v. Delouize, no. S108119, concerns whether, after granting a motion for new trial, a superior court retains jurisdiction to vacate that order and enter a new order denying the motion. Read the Court of Appeal (1st Dist., Div. 4) opinion here. According to the docket, Delouize is represented by George Benton of Santa Rosa; the state is represented by Deputy Attorney General Matthew Boyle.

On Tuesday, at 2 p.m., the Court will hear argument in two cases:

John L. v. Superior Court, County of San Diego no. S098158, which presents the question of whether the bar against ex post facto laws applies to amendments made by Proposition 21 to the standards of proof and admissibility of evidence in juvenile probation revocation proceedings.

People v. Duane Holloway, S029550, which is an automatic appeal from a judgment of death. According to the docket, Holloway was sentenced to death and appealed in 1992, counsel was appointed in 1997, briefing on the direct appeal was completed in June of 2002, a related habeas was filed in July of 2003. Holloway is represented by Mark Greenberg of Oakland; the state is represented by Deputy Attorney General Raymond Brosterhous.

The above descriptions of issues presented paraphrase or quote the descriptions found in the court's notice of cases to be argued.

Johnson v. California Update. A few reports on yesterday's oral argument in the Johnson v. California are out.

In this post Amy at SCOTUSBlog reports

The first case on the calendar today was No. 03-6539, Johnson v. California, which presented the question of the showing required to establish a prima facie case under Batson v. Kentucky. I’m not going to go into the details of the oral argument here, in no small part because we think that the case has a good chance of getting dismissed as improvidently granted for lack of a final judgment below.

An AP story, which I found in the New York Times, similarly reports that "The justices also raised the possibility that they might not have jurisdiction to decide the matter, as there are separate issues in the case still being considered by lower courts."

The only "lack of finality" I know about in this case is that the state court of appeal and state supreme court did not rule on some of the appellant's other arguments. If the Supremes either affirm or dismiss review, the appellant goes back to the state court of appeal for a decision on the remaining direct appeal arguments, which could entitle him to a new trial. Even so, there's a judgment of conviction and a defense victory in the supreme court would moot the other issues and entitle the defendant to a new trial. And why would the court want to put this off? Even the state wanted review. I like to hear any thoughts others have on the finality question.

Other than the finality question, it sounds like things went well enough for the petitioner. As reported in the New York Times story, "Several justices appeared skeptical of his claims, including Justice Anthony M. Kennedy, who suggested that defendants should have the benefit of hearing a prosecutor's reasons for dismissing jurors." Having Kennedy's vote could make the difference.

See yesterday's post on this case for details about the question presented and links to the briefs.

Supreme Court Oral Arguments Tomorrow.

SCOTUSBlog has well-summarized the issues before the court in the consolidated cases of No. 03-339, Sosa v. Alvarez-Machain, and No. 03-485, United States v. Alvarez-Machain.

But also on the calendar tomorrow is Johnson v. California, no. 03-6539, which presents the question of whether to establish a prima facie case under Batson v. Kentucky, 476 U.S. 79 (1986), the objector must show that it is more likely than not the other party's peremptory challenges, if unexplained, were based on impermissible group bias. Petitioner's position (and his counsel Steve Bedrick, of Oakland, CA, argues it well) is that for a prima facie showing Batson only requires an inference of discrimination, not proof by a preponderance of the evidenece.

For background, take a look at the U.S. Supreme Court briefing (petitioner's brief, respondent's brief, and reply brief), the California Supreme Court opinion, Batson, and one of a series of Ninth Circuit cases which were the likely motivation for the state to support the petitioner's request for certiorari, such as Cooperwood v. Cambra, no. No. 99-15518 (holding that California's application of wrong standard required de novo, rather than deferential, review of habeas petitioner's Batson claim).

Audio Available In 9th Circuit DNA Case. Click here to listen to yesterday's oral argument in U.S. v. Kincade, 02-50380, which presented the question of "Whether the forced extraction of blood from parolees pursuant to the federal DNA Analysis Backlog Elimination Act of 2000, 42 U.S.C. § 14135a, without reasonable, individualized suspicion, violates the Fourth Amendment."

The Panel: Judges Schroeder, Pregerson, Reinhardt, Kozinski, O’Scannlain, Hawkins, Silverman, Wardlaw, Gould, Clifton, and Callahan.

Pledge Case. In case you've been asleep all day or you want to read first-hand attorney reports on this morning's U.S. Supreme Court oral argument in the Pledge of Allegiance case, visit SCOTUSBlog and How Appealing.

En Banc Day. One of the three Ninth Circuit en banc case calendared for tomorrow (Tuesday, March 23)---United States v. Iniguez, no. 01-50553---has been submitted on the briefs.

United States v. Kincade, 02-50380 will be argued at 11:00 a.m. in Courtroom 4. The panel for Kincade consists of Judges Schroeder, Pregerson, Reinhardt, Kozinski, O’Scannlain, Hawkins, Silverman, Wardlaw, Gould, Clifton, and Callahan.

Skokomish Indian Tribe v. U.S., nos. 01-35028 and 01-35845, will be argued at 2:00 p.m. Courtroom 4. The panel for Skokomish Indian Tribe consists of Judges Schroeder, Pregerson, Kozinski, Rymer, Graber, Gould, Paez, Berzon, Rawlinson, Bybee, and Callahan.

Read my post on the issues presented by these cases here.

U.S. Supreme Court Arguments Next Week.The criminal and habeas cases to be argued at the Supreme Court this coming week include:

Monday, March 22, 2004

Tennard v. Dretke, no. 02-10038

According to the petitioner's brief, Tennard presents the questions:

1. Is the Fifth Circuit’s rule requiring a “nexus” to the crime before evidence of impaired intellectual functioning and judgment can be considered as mitigation for purposes of determining whether there is a violation of Penry v. Lynaugh, 492 U.S. 302 (1989) (Penry I), inconsistent with the rationale of Atkins v. Virginia, 536 U.S. 304 (2002)?

2. Did the Fifth Circuit err in resolving the plainly substantial question of the effect of Atkins on the Fifth
Circuit nexus rule by denying a COA, rather than granting a COA and giving the substantive issue the merits consideration it deserves?

Note: The Fifth Circuit has been reversed at least once this term and once last term for erroneously denying certificates of appealability. See Miller-El v. Cockrell, 537 U.S. 322 (2003) and Banks v. Dretke, No. 02–8286.

Larry D. Hiibel v. Sixth Judicial District Court of Nevada, Humboldt County, et al., no. 03–5554.

According to the petitioner's brief, Hiibel presents the question: "Does the constitution prohibit the state from forcing people to identify themselves during a police investigation when they are seized upon less than probable cause?"

Tuesday, March 23, 2004

Ralph Howard Blakely, Jr. v. Washington, no. 02–1632.

According to the petitioner's brief, Blakely presents the question: "Whether a fact (other than a prior conviction) necessary for an upward departure from a statutory standard sentencing range must be proved according to the procedures mandated by Apprendi v. New Jersey, 530 U.S. 466 (2000)."

Wednesday, March 24, 2004

It's off topic, but on Wednesday we'll all be hearing about Elk Grove Unified School District v. Newdow et al. No. 02-1624. Read the briefs here.

April Oral Argument Calendar Posted. The California Supreme Court has posted its oral argument calendar for April. Argument will be Los Angeles on April 6 and April 7. Read the notice to see what cases will be heard.

Cal. Supreme Court Refers Disciplinary Matter to State Bar. As reported in tomorrow's Recorder, the California Supreme Court heard today from two attorney's who can't agree on who is at fault for their non-appearance at a Supreme Court oral argument last month. The continued finger-pointing and failures to apologize led to a referral to the State Bar.

Read earlier posts on this charming matter here and here.

U.S Supreme Court Arguments for Feb. 23-25; Mar. 1-3

As reported by SCOTUSblog on Friday, the U.S. Supreme Court has posted its hearing list, including counsel arguing, for cases to be argued this week and next. The criminal and habeas matters to be heard include (with local counsel for 9th Cir. cases noted):

Beard v. Banks, No. 02-1603, which concerns the retroactivity of Mills v. Maryland, 486 U.S. 36 (1988), which barred unanimity requirements for jurors considering mitigating evidence in a capital case penalty phase (to be argued February 24).

U.S. v. Flores-Montano, No. 02-1794, which, according to the government's brief, concerns "[w]hether, under the Fourth Amendment to the United States Constitution, customs officers at the international border must have reasonable suspicion in order to remove, disassemble, and search a vehicle's gas tank for contraband" (to be argued February 25; Steven Hubachek of San Diego will be arguing for Flores-Montano in this 9th Circuit case)

Yarborough v. Alvarado, No. 02-1684, which concerns whether a juvenile's age and experience are proper considerations in determining custody for Miranda (to be argued March 1; Deputy A.G. Deborah Chuang of Los Angeles will argue for the state; Tara K. Allen of Malibu will argue for the habeas petitioner).

Dretke v. Haley, No. 02-1824, concerns "[w]hether the 'actual innocence' exception to the procedural default rule concerning federal habeas corpus claims should apply to noncapital sentencing error" (to be argued March 1).

Sabri v. U.S., No. 03–44, which concerns whether 18 U.S.C. § 666(a)(2) criminalizes acts of bribery lacking a nexus to a federal interest, and does it exceed Congress’ limited power under the Constitution (to be argued March 3).

Yarborough v. Alvarado and Beard v. Banks also both present questions regarding the scope of federal habeas corpus review under 28 U.S.C. sec. 2254(d) (as amended by AEDPA).

Click here to view the briefs for cases argued in February, and here to view briefs for cases to be argued in March.

No-Show for Oral Argument Gets Second Chance to Appear (This Time for Contempt Hearing)

Last week I posted about the attorney who failed to show for a California Supreme Court oral argument on February 10. The attorney and his former boss (who happens to also be a party to the case) have been squabbling in the press about who was at fault. It should all be straightened out next month. The Supreme Court has issued an amended calendar for March adding this item: "S099667 In re Allen J. Kent and Raul V. Aguilar, etc.; Aguilar v. Lerner (Order to show cause re contempt)."

I like that the Court has put them first on the March 9 calendar, at 9 a.m. sharp.

Cal. Supreme Court Oral Arguments - March, 2004

The California Supreme Court has posted its oral argument calendar for March 9-11. The arguments will be heard in San Francisco. Here's some information about the criminal cases to be argued:

March 9:

In People v. Canty, no. S118032, the Court will hear argument on the question of whether a defendant is ineligible for Prop. 36 probation because, in addition to her transportation of narcotics conviction, she was convicted of driving under the influence of a controlled substance. Click here to read the Third Appellate District's opinion in Canty, in which the court held that "Proposition 36 does not apply if the defendant was convicted in the same proceeding of 'a misdemeanor not related to the use of drugs' (§ 1210.1, subd. (b)(2)), defined as an offense not involving 'the simple possession or use of drugs' (§ 1210, subd. (d)). We conclude the misdemeanor offense of driving under the influence of drugs does not involve the 'simple possession or use of drugs' since it requires the additional element of impaired driving."

People v. Casper, no. S114285, involves a fairly esoteric Three Strikes Law question described as follows on the Supreme Court's docket for the case: "If the trial court dismisses prior conviction allegations under the three strikes law with respect to the computation of the term to be imposed on some but not all counts, is he defendant nonetheless subject to mandatory consecutive sentences under the three strikes law on all he counts involving crimes that were not committed on the same occasion and not arising out of the same set of operative facts, including those counts to which the prior convictions were dismissed."

People v. Pollock, no. S040471, is an automatic appeal in a death penalty case.

March 10

People v. Konow, no. S111494, involves a magistrate's authority to dismiss a case in the interests of justice and the issues presented are summarized on the court docket as:

(1) Is the power of the magistrate to dismiss a case in the interests of justice at the preliminary hearing (Pen. Code, section 1385) a "substantial right" of the defendants so as to render their commitment unlawful under Penal Code section 995 if the magistrate erred in determining that it lacked authority to dismiss under section 1385(?) (2) Can a superior court judge, acting on a Penal Code section 995 motion, review any aspect of the ruling of another superior court judge granting a motion to reinstate criminal charges under Penal Code section 871.5?

Read the Court of Appeal (4th Dist., Div. 1) opinion in Konow here.

March 11

People v. Britt, no. S115377, involves sex offender registration. Here's the docket description of the issue:

Can a registered sex offender be prosecuted in one county for failing to notify law enforcement agencies of his change of address when he moves from that county and also be prosecuted separately in the county of his new residence for failing to register there, or are two separate prosecutions barred under these circumstances by Penal Code section 654?

Click here to read the Third Appellate District's opinion in Britt.

Attorney Is No Show For California Supreme Court Argument

According to an article in today's Recorder, an attorney failed to show for argument yesterday at the California Supreme Court: "San Francisco lawyer Allen Kent was a no-show Tuesday before the California Supreme Court, and his client, Raul Aguilar, had no idea where he was. In fact, Aguilar -- Kent's boss at the firm of Aguilar & Sebastinelli -- told Supreme Court Clerk Frederick Ohlrich by telephone that he hadn't seen Kent since the lawyer 'walked out' of the firm's California Street office Monday. Aguilar indicated that Kent 'abruptly left.'"

Click here to read the article. (Subscription required.)

Cal. Supreme Court - Oral Arguments This Week

As noted in my post of January 18, the Califorrnia Supreme Court will be hearing oral argument in Sacramento Monday-Wednesday, this week. My original post describes the criminal- and habeas-related cases to be argued this week. Click here to view the entire calendar.

It'll be a busy few days for the Court, which, as noted in the post immediately below, still has a petition from Kevin Cooper pending.

Cal. Supreme Court: Oral Argument Waiver Notice Chills Right to Argument

The California Supreme Court decided People v. Pena, no. S106906, today, holding that "that there exists a danger that" the oral argument waiver notice used by Division Two of the Fourth Appellate District "suggests too strongly (1) that the appellate court already has finally decided the case and will not be affected by oral argument, and (2) that appellate counsel might face adverse consequences if oral argument is requested. As such, the notice has a real potential to interfere with a party’s proper exercise of the right to present oral argument on appeal." The Court, employing its supervisory power, directed the Court of Appeal to cease using the notice and remanded the case for oral argument. The Supreme Court's unanimous opinion was written by Chief Justice Ronald George.

For those who practice in jurisdictions where oral argument is held at the discretion of the court, California is a little different: there's a state law right to present oral argument in a direct appeal. (The sources of that state law right are constitutional, statutory, and rule-based. (See pp. 8-9 of the slip opinion.))

Here's the text of the notice:

Enclosed is the tentative opinion of a majority of the three-justice panel hearing the appeal. The court has determined that (1) the record and briefs adequately present the facts and legal arguments, (2) oral argument will not aid the decision-making process, and (3) the tentative opinion should be filed as the final opinion without oral argument in the interests of a quicker resolution of the appeal and the conservation of scarce judicial resources. Although the essential work of the court in this case has been completed, scheduling oral argument regularly delays filing of the opinion for six to ten weeks, and, if the case is continued, it can ultimately delay the filing of the opinion for up to five months until the same panel is again available.” (Underscoring in original.) The notice was stamped in the upper lefthand corner in bold capital letters stating: “COUNSEL MUST READ AND COMPLY WITH THIS NOTICE.

And click here to read the Recorder's coverage. (Subscription required.)

Ninth Circuit Oral Arguments Online!

The Ninth Circuit announced today that recordings of oral arguments are now available on the court's website. The audiofiles will be posted the day after argument and will remain available on the web page for three months. The arguments currently posted include all oral arguments since January 2004. The audiofile search page can be accessed here and the list of all available files can be accessed here. The files, according to the press release and my own trial run, can be played on Windows Media Player. I'd like to hear if anyone is able to play the recordings on another player.

This is welcome news. Last year, in preparing a petition for rehearing, I needed to listen to my oral argument in a Ninth Circuit case. This required a request to the Court and all I got was a terrible recording played at the wrong speed. The ease of the new system is a blessing. I do have one suggestion: keep each case's audiofile on the web site until the mandate has issued.

Cal. Supreme Court Oral Arguments - Feb. 2004

The California Supreme Court has posted its oral argument calendar for the week of February 9-11. The arguments will be heard in Sacramento. People v. Laino will be argued on Monday, Feb. 9, 2004. According to the Supreme Court docket, Laino concerns whether a prior guilty plea in Arizona qualified as a "strike" under the three strikes law although the charges were dismissed in that state, without entry of judgment of guilt, upon the defendant's successful completion of probation. Click here, to read the Court of Appeal (4th Dist., Div. 1) opinion in Laino. Also of interest to post-conviction practioners might be a habeas case, In re Young, in which the question presented is: "Did the limitation on credits under the three strikes law to 'one-fifth of the total term of imprisonment' [citation] preclude the Department of Corrections from reducing petitioner's sentence by up to 12 months under Penal Code section 2935 for performing 'a heroic act in a life-threatening situation?'" Click here to see the Court of Appeal opinion. According to that opinion, Young's heroic act was performing the Heimlich maneuver on his work supervisor in the prison. Young will be argued on Wed. Feb. 11, 2004