Criminal Appeal

Cert Grant: Does Brecht Apply When the State Court Failed to Apply Chapman?

Ironically, had I written my previous post a day earlier I might have included another issue on my list of cert-worthy issues overlooked by the Court. But yesterday the Court granted certiorari in a case, Fry v. Pliler, no. 06-5247, presenting the question of whether the  Brecht v. Abrahamson, 507 U.S. 619 (1993) federal habeas prejudice standard applies when the state court failed to recognize the constitutional nature of the error and did not review the error for prejudice under the Chapman standard applicable to most federal constitutional errors.

The Split. The split on this issue has existed for years; I raised the issue in a cert petition in 2001. Most of the federal circuits had held that Brecht applies even when the state court failed to apply Chapman, with only the Eighth Circuit and a couple district courts holding otherwise. But, as I wrote in my 2001 cert petition, federal judges were more deeply divided on the issue than that split reflected: three-judge panels in the Fifth and Tenth Circuits, as well as a dissenting judge in the Eleventh Circuit were convinced that their decisions are incorrect.

The Reasoning. The weakness with the majority rule is the logic of Brecht doesn't apply when the state court failed to apply Chapman. As Chief Justice Rehnquist wrote in Brecht, “it scarcely seems logical to require federal habeas corpus courts to engage in the identical approach to harmless-error review that Chapman requires state courts to engage in on direct review.” But that reasoning does not apply when the state court did not review the error for prejudice under Chapman.

Background on Fry. In the Ninth Circuit, the majority (Judges Dorothy Nelson and Bea) tersely rejected Fry's claim that Brecht should not apply because the state court failed to apply it:

Fry contends that this court should not apply the Brecht harmless error standard because the state appellate court failed to conduct a meaningful prejudice review. We have held, however, that the Brecht standard applies uniformly in all federal habeas corpus cases under § 2254 regardless of the error standard, if any, applied by the state court. Bains v. Cambra, 204 F.3d 964, 976 (9th Cir. 2000); see also Inthavong v. LaMarque, 420 F.3d 1055, 1059 (9th Cir. 2005).

Judge Rawlinson dissented, on the ground that she would hold that the error was not harmless under Brecht. Fry was convicted of murder in Solano County California. The California Court of Appeal (1st Dist., Div. 3) affirmed his conviction in an unpublished decision filed on March 30, 2000.  (People v. Fry, no. A072396.) Unfortunately, that decision was issued before the court began making all unpublished decisions available electronically. Fry is represented by Victor Haltom of Sacramento, California.

Trivia: The Seventh Circuit case touching on this issue was Tyson v. Trigg, 50 F.3d 436, 446-47 (7th Cir. 1995), cert. denied, 516 U.S. 1041 (1996), Mike Tyson's federal habeas appeal.

 

Cert-Worthy Issues Being Overlooked?

Court observers, including Linda Greenhouse at the New York Times and the folks at SCOTUSblog (Marty Lederman and Tom Goldstein) have been taking note of the shrinking SCOTUS docket. Criminal law practitioners and scholars have responded, noting cert-worthy issues that have, thus far, been overlooked.

Steve Sady, the Chief Deputy FPD in Oregon, notes three issues: "1) the three-way Circuit split about denying Fourth Amendment rights to persons charged with Illegal Reentry .... ; 2) the Bureau of Prisons’ interpretation of the federal good time statute ...; and 3) any of the many issues where the Circuit courts are refusing to follow the Supreme Court’s holdings in Haley and Shepard that the Doctrine of Constitutional Avoidance must be applied in interpreting non-specific statutes ... on the scope and application of Almendarez-Torres and the post-Apprendi Sixth Amendment cases." And Professor Doug Berman at Sentencing Law and Policy has suggested several sentencing-related issues, particularly questions arising from Booker (here and here).

I can think of four undecided criminal justice issues that need the court's attention:

• whether use of prior bad acts for the sole purpose of showing the defendant has a propensity to commit the charged crime violates due process;
• the scope of the forfeiture by wrongdoing exception to Crawford's bar against the admission of testimonial hearsay of unavailable witnesses (the California Supreme Court is considering this issue and heard argument on it this week - see my post here);
• whether the Strickland standard for ineffective assistance of counsel applies to review of counsel's performance in connection with non-capital sentencing (last Spring, the Ninth Circuit held that the applicability of Strickland to non-capital sentencing is not clearly established for purposes of AEDPA - see my post here);
• whether the holding of Shepard (decided under the doctrine of avoiding constitutional doubt) is constitutionally compelled (this question is presented in a pending cert petition in McGee v. California, no. 06-6088 - see my post here).

That's my two cents.

No Cal Supreme Review Grants This Week

This week's Cal. Supreme Court order list contains no full grants of review.

Review Grant - DNA Evidence

Yesterday, the California Supreme Court granted review in People v. Nelson, no. S147051  (Cal.Ct.App. (3d Dist.) no. C047366. In its unanimous partially-published opinion in this case involving a 1976 murder and 2002 DNA hit, the Third District had rejected the defendant's DNA related claims

(1) the delay between the date of the crime and the filing of a complaint charging him with the murder violated his right to due process of law, and (2) in light of the holding in People v. Kelly (1976) 17 Cal.3d 24 (hereafter Kelly), the DNA evidence should not have been presented to the jury because there is no general scientific acceptance of a statistical means of explaining the results of a DNA comparison when a DNA databank is used to identify a potential candidate.

Appellant was represented in the court of appeal by Cara DeVito.

No Review Grants this Week

This being an oral argument week, the California Supreme Court issued no order list this week.

En Banc Review Granted: Cal. Capital Habeas With Extrinsic Evid (Bible Passages) and Penalty Phase IAC Issues

The Ninth Circuit has granted en banc review in Fields v. Brown, no. 00-99005, a capital habeas case from California. The most recent opinion in this case was filed on December 8, 2005 and was authored by Judge Rymer (joined by Judges Kozinski and Silverman). According to the petition for rehearing, amici briefs, and opposition (all of which can be accessed here in one very big file), the issues include (1) penalty phase juror misconduct in bringing bible references into deliberations and (2) penalty phase IAC in failing to investigate and present mitigating evidence.

Review Grant - Writ Challenge to Indictment By Sutter County Officials Charged With Accounting Irregularities

The Cal. Supreme Court has granted review in In re Stark, no. S145337 (3d Dist. opinion) a case in which the Court of Appeal (3d Dist.) had granted partial writ relief to two elected officials in Sutter County charged by indictment with various violations of section 424(a) of the Penal Code, e.g. misappopriation of funds, keeping false accounts, etc.

The court docket does not show yet what particular issue is to be briefed, but it may relate to the Court of Appeal's questioning of the reasoning of a California Supreme Court decision regarding the scope of writ review of erroneous instructions to grand juries.

Review Grants - Prior Weeks

While I'm mentioning yesterday's Cal. Supreme Court order list, I might as well throw out a few criminal review grants from the past month when I was woefully absent from blogging:

MDO Extensions: Last week, in People v. Allen, no. S141913, the Court granted review in a case presenting this question: "Does a trial court have jurisdiction to extend the commitment of a mentally disordered offender if the petition to extend the commitment was not filed until after the prior commitment had expired?

Court Security Fee - Retroactivity: Two Weeks ago , the Court granted review in two cases concerning the retroactivity of the $20 court security fee to cases where the offense was committed prior to the enactment of the fee: People v. Alford, no, S142508, and People v. Carmichael, no. S141415.

Allocution: In People v. Evans, no. S141357, the Court will consider "Did the trial court deny defendant due process or violate any right of allocution when it denied his request to speak on his own behalf before the court imposed sentence?"

Receiving Stolen Property: In People v. Najera, no. S141654, the court will address whether "In a theft-related case, does the trial court have a duty to instruct the jury, without a request by any party, with CALJIC No. 2.15 concerning the significance of the defendant’s possession of recently stolen property?"

Grand Theft Person: In In re Roberto A., no. S142280, and In re Jesus O., no. S140865, the question presented isi: "Is the crime of grand theft from the person committed when an assault causes the victim to drop his or her?"

No Crim. Review Grants This Week

The Cal. Supreme Court did not grant full review with briefing in any criminal cases yesterday.

Cert. Grant in AEDPA S.O.L. Tolling Case

This morning, the Supreme Court granted cert. in a Florida capital case in which the Eleventh Circuit affirmed the dismissal of the habeas petition on statute of limitations grounds.  Lawrence v. Florida, no. 05-8820. This case presents the spectacle of a death row inmate possibly being denied any federal habeas review because his attorney filed his federal habeas petition late.

The precise question presented is not quite clear, but it relates to tolling of the AEDPA federal habeas statute of limitations.

While there have been quite a few Supreme Court cases addressing statutory tolling  based on a pending state habeas petition, this may be the first directly addressing equitable tolling and statutory tolling based upon a state created impediment to filing. (Last term, in Pace v. DiGuglielmo, the court assumed, without deciding, that equitable tolling could excuse a late filing.) The question in Lawrence, however, may be on the more limited question of whether the limitations period is tolled during the pendency of a cert petition from the denial of state post-convcition relief, as described by SCOTUSblog. The defendant  presented two theories by which his petition, although filed more than one year after the conviction was final, was timely. The Eleventh Circuit rejected both.

State Created Impediment to Filing. First, he argued that he fell under the alternative one-year limitation period that runs from “the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action.” 28 U.S.C. § 2244(d)(1)(B). The defendant argued that "the State caused an impediment to his timely filing by providing him with an incompetent attorney through the Florida counsel registry system" and that counsel incompetently assumed the limitations period was tolled during the pendency of a petition for certiorari from the denial of state post-conviction relief.

Equitable Tolling. Second, the defendant argued that he was entitled to equitable tolling due to (1) the state providing him an incompetent attorney, (2) his own mental incompetence.

The Eleventh Circuit rejected both theories in a published opinion. The court also held, as was necessary to the opinion, that the pendency of the certiorari petition from the state post-conviction denial did not toll the limitations period. The time during which the state post-conviction petition was pending did toll, but the court held that the clock started running when the state petition was denied by the state high court, not when the certiorari petition was denied.

Cal. Supreme Court to Review "Estes" Robbery

The Cal. Supreme Court granted review today in People v. Gomez, no. S140612, which presents the question of whether a robbery is committed when the property is taken outside the presence of the victim (i.e. without force or fear), but the defendant used force or fear in resisting the victim's attempts to regain possession of the property or in removing the property from the owner's immediate presence.

The Court of Appeal opinion, authored by Justice Bedsworth, can be read here and starts like this: 

The law libraries of this state are all lined with hundreds of linear feet of official reporters – testament in large measure to the bottomless ingenuity of what Justice Gardner called “the contemporary criminal culture.” (People v. Benton (1978) 77 Cal.App.3d 322, 324, fn. 1 [perhaps the best footnote in the history of appellate literature].) That ingenuity and the vagaries of random chance combine here to present still another in the apparently endless number of variations on the theme of Penal Code section 211. Here, we deal with the permutation that has become known as an “Estes robbery.”

Cal.

Cal. Supreme Review Grants

Can Pregnancy and/or Abortion Resulting from Sex Offense Constitute GBI? People v. Cross, S139791, rev. gr. 3/1/06; opinion below.

Is assault with a firearm a lesser included offense of shooting from a vehicle? People v. Licas, S140032 (rev. gr. 3/1/06); note: this seems to fit a recent trent showing the court's interest in questions relating to lesser included offenses; opinion below.

Did CALJIC No.17.15 adequately apprise the jury of the need for a “facilitative nexus” between the handgun and the underlying crime? People v. Pitto, S139609 (rev. gr. 2/10/06) Note: rev. granted on court's own motion; opinion below.

Cal. Supreme Court Review Grants

Recent Cal. Supreme Court action in criminal & habeas cases:

People v. Rivera, S138898: Must a police officer corroborate an anonymous tip before seeking consent to enter and search a residence to investigate the tip? Court of Appeal opinion here.

In re Gray, S138910: the court granted review and transferred the case back to the court of appeal (2 dist., div. 3) with directions to issues an OSC returned to the superior court, requiring CDCR to show

why the Governor did not abuse his discretion in reversing the January 27, 2005 decision of the Board of Parole Hearings finding petitioner suitable for parole, why there was "some evidence" in the record to support the Governor's determination made pursuant to article¨V, section 8(b) of the California Constitution and Penal Code section 3041.2, and why petitioner is not entitled to release on parole.

In re Mar, S130027. OSC, returnable in superior court, issued directing CDCR to

show cause why petitioner is not entitled to relief based on his allegations that counsel rendered ineffective assistance and that his plea was involuntary.

(Note the slow action on this appeal. The petition was filed in the supreme court on Dec. 17, 2004. On April 26, 2005, counsel wrote the court requesting consideration at the next conference. On Feb. 1, 2006, the OSC issued.)

Cal. Supreme Court to Review Restitution Based on Future Earnings of Deceased Victim

Today, the Cal. supreem Court granted review in People v. Giordano, no. S138382.

The court of appeal (4th Dist., Div. 2), in a unanimous published opinion, had affirmed an award of restitution to a surviving spouse based on future earning of the decedent.

En Banc Review in Fed. Habeas Right-to-be-Present Case

The Ninth Circuit granted en banc review today in Bradley v. Henry, no. 04-15919, a state prisoner habeas case in which the three-judge panel, in a 2-1 decision, reversed the denial of the habeas corpus petition. Judges Noonan (author) and Ferguson (concurring) held that the defendant's absence from a hearing during which the trial court relieved retained counsel and appointed new counsel violated the due process right to be present at a critical stage of the proceeding. The Court found that the California Court of Appeal's holding to the contrary constituted an unreasonable application of US Supreme Court authority. Judge Rymer dissented.

Read the three-judge opinion here.

Cal. Supreme Court Review Grants

Here's a summary of recent Cal. Supreme Court action on petitions for review. (Grant and hold orders (i.e. briefing deferred) cases are not mentioned here.)

Dec. 14, 2005 Order List: no review grants in criminal cases.
Dec. 6, 2005: oral argument week - no order list.
Nov. 30, 2005:

• In re Large, S127754. The court issued an OSC limited to the following claim:  Is petitioner entitled to relief on the ground the trial court failed to exercise properly  its discretion to dismiss prior conviction allegations under the three  strikes law?

Nov. 23, 2005: no new cases accepted.
Nov. 16, 2005:

• People v. Johnson, S127602. This case is on remand from the United States Supreme Court in Johnson v. California, No. 04-6964, in which the Court held that California applied to high a burden on litigants establishing a prima facie showing that a peremptory challenge was based on an illegal factor (e.g. race, in this case). The Cal. Supreme Court now wants briefing on the remedy for the Wheeler/Batson error—outright reversal of  defendant’s conviction or a limited remand to permit the trial court to  inquire into the prosecutor’s reasons for removing minority jurors. Note: the same issue is pending in People v. Ibarra, S124067.
• People v. Leon, S137137, 131 Cal.App.4th 966: (1) Is there a legitimate expectation of privacy in telephone conversations on telephone procured under a false name and used for criminal purposes? (2) Does 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?
• Perez-Torres v. California, S137346, 132 Cal.App.4th 49.)  This is a civil case: Does Government Code section 845.8 immunize the state and individual parole agents from liability for the mistaken arrest and detention of an individual who was not on parole but, because he was mistaken for another person, was incarcerated for 25 days for having violated parole?   
• People v. Scott, S136498:  Did trial court err in instructing the jury all employees have constructive possession of employer’s property during a robbery, and, if so, what is the proper standard for determining whether an employee has constructive possession of employer’s property.
  
• Welch on Habeas Corpus, S107782. (Capital case; see People v. Welch (1999) 20 Cal.4th 701. OSC issued: Is petitioner entitled to relief on ground of jury misconduct (ex parte communications from bailiff) or ground of IAC (failure to investigate and present evidence of petitioner’s social history)?

Nov. 9, 2005: no new cases accepted.
Nov. 2, 2005: one grant and hold case; no fully briefed cases.
Oct. 26, 2005:

• People v. Medina, S137055, 131 Cal.App.4th 493: (1) Can a defendant commit the crime of attempted kidnapping during the commission of carjacking by attempting to kidnap the victim in an attempt to commit a carjacking, or does the crime  require the completed commission of the crime of carjacking in the  course of an attempted kidnapping?  (2) Are attempted kidnapping and attempted carjacking lesser included offenses of attempted kidnapping during the commission of carjacking? 

Cert. Grants Today (One from California):  SCOTUSblog has a list of today's cert grants. There are several criminal and habeas cases. The summaries below are quoted from the ever-reliable and ever-timely SCOTUSblog.

There is, of course, the obligatory federal habeas statute of limitations case:

No. 04-1324, Day v. Crosby: In a habeas proceeding, whether state waives limitations defense when it fails to plead or otherwise raise that defense and expressly concedes that habeas petition was timely; and whether Rule 4 of Rules Governing Section 2254 Cases permits district court to dismiss habeas petition sua sponte after state has filed answer based on ground not raised in answer.

And there is a case presenting a question regarding the constitutional right to present a defense:

No. 04-1327, Holmes v. South Carolina: Whether state's rule governing admissibility of third-party guilt evidence violates criminal defendant's constitutional right to present complete defense grounded in due process, confrontation, and compulsory process clauses.

And a fourth amendment case regarding anticaptory warrants:

No. 04-1414, United States v. Grubbs: Whether the Fourth Amendment requires that evidence be suppressed when obtained pursuant to an anticipatory search warrant after warrant's triggering condition is satisfied, but when that triggering condition is not set forth either in the warrant itself or in an affidavit that is both incorporated into the warrant and shown to the person whose property is being searched.

Last, but not least, there's a parole search case which apparently presents the question of whether individualized suspicion is required for a parole search. Samson v. California, No. 04-9728. Samson is a case out of California's First Appellate District and the petitioner's attorney is Martin Kassman of San Francisco.
 

Cal. Supremes Review Grant (last week): People v. Crandell, S134883. (H027641). Question presented (according to the docket):

Does the imposition of a restitution fine under Penal Code section 1202.4, subdivision (b), violate a defendant's plea agreement if the fine was not an express term of the agreement?

Opinion Below.

Justice Mihara dissented:

I dissent for the same reasons I dissented in People v. Knox (2004) 123 Cal.App.4th 1453. (Knox at pp. 1463-1465, Mihara, J., dissenting.) I also note that the advisements in this case were not accurate. The court told defendant at the time of the plea that the “amount” of the restitution fund fine “will depend on your ability to pay the fine.” However, when defendant’s trial counsel objected to the $2600 restitution fund fine recommended by the probation department, the court acknowledged that it was setting the fine by multiplying the number of counts by the number of years and by $200 since “[t]hey take it out of their prison wages.” It hardly seems accurate to assure a defendant that the fine will be based on his ability to pay and then to instead set it based on the number of years he will spend in prison on the assumption that his prison wages during his 13-year prison term will be adequate to pay the fine.

Last Weeks Cal. Supreme Court Review Grants. In addition to a bunch of Blakely/Black/Towne grant & holds, the Court actually granted full review in several criminal cases. 

Are enhancements considered in applying the bar against multiple convictions for necessarily included offenses? The court granted review in two cases presenting this question, requesting full briefing in both (that's not unusual; the court may ultimately pick one to be the lead case and hear argument in just one):

• People v. Izaguirre, S132980. (Ct.App. no. B169352); unpublished opinion; (this case also presents the question "was an enhancement under Penal Code section 12022.53, subdivision (d), necessarily included within the conviction for first degree murder (Pen. Code, § 187) with a drive-by shooting special circumstance (Pen. Code, § 190.2(a)(21))?
• People v. Sloan, S132605. (Ct. Appea. no. C042448; 126 Cal.App.4th 1148.)

Are defendant-appellants entitled to an opinion with reasons stated on issues raised in a pro se supplemental brief when counsel filed a no-issue brief under Wende/Anders?

• People v. Kelly, S133114. (H027483; unpublished opinion). Summary of questions presented from the docket: "(1) Does article VI, section 14, of the California Constitution, which provides that "[d]ecisions of the Supreme Court and courts of appeal that determine causes shall be in writing with reasons stated," set the same standard for a criminal appeal in which defense counsel files a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 raising no issue and defendant submits written argument on his own behalf as the standard that applies to a criminal appeal in which one or more specific claims of error is raised by defense counsel? (2) Did the Court of Appeal opinion in this case satisfy the requirements of article VI, section 14?

Speedy trial right and loss of possibility of concurrent sentences.

• People v. Lowe, S131879. (Ct. App. no. H026889 (6th Dist.); 126 Cal.App.4th 1365: "Can a delay of five months in serving an arrest warrant on a defendant already serving another sentence constitute sufficient prejudice to support the defendant’s claim that he was denied his state constitutional right to a speedy trial by being deprived of the possibility of concurrent sentences in the two cases?"

Modification of judgment following finding of insufficient evidence.

• People v. Navarro, S132666. (Ct. App. no. F044291 (5th dist.) 127 Cal.App.4th 159) "After concluding that the evidence was insufficient to support defendant’s conviction for attempted kidnapping during the commission of carjacking, could the Court of Appeal properly modify the judgment to reflect conviction of two lesser included offenses—attempted kidnapping and attempted carjacking—or only one such offense?"

Meaning of "single occasion" (one-strike law) and "separate occasions" (PC 667.6(d).

• People v. Saphao, S132399. (Ct. App. no. A103716 (1st dist., div.; court of appeal opinion; order modifying opn & denying rehg) "Did the evidence support the trial court’s findings that defendant’s crimes did not occur on a “single occasion,” within the meaning of Penal Code section 667.61, subdivision (g), and that they occurred on “separate occasions” within the meaning of Penal Code section 667.6, subdivision (d)?"

More AEDPA S.O.L. Work for SCOTUS.

On Monday, the Supreme Court granted certiorari in Lamarque v. Chavis, no. 04-721. This is a follow-up from Carey v. Saffold, 536 U.S. 214 (2002), in which the Supreme Court held that the federal habeas statute of limitations is tolled during reasonable periods of time between the denial of a state habeas petition at one level and the filing of the next state habeas petition in a higher court. This is really only about California where the denial of a state habeas petition is not appealable, and there are no firm or clear deadlines for filing a petition in a higher court after a lower court denied the petition. The Ninth Circuit held that the petitioner was entitled to tolling for periods between petitions during each of two rounds of petitions filed, but there was no tolling between the two rounds. (The petitioner twice went through the state courts with habeas petitions.)

According to SCOTUSBlog, the the question presented is:

"Did the Ninth Circuit contravene this Court's decision in Carey v. Saffold [2002] when it held that a prisoner who delayed more than three years before filing a habeas petition with the California Supreme Court did not 'unreasonably' delay in filing the petition -- and therefore was entitled to tolling during that entire period -- because the California Supreme Court summarily denied the petition without comment or citation, which the Ninth Circuit construes as a denial 'on the merits'?"

Chavis was pro per in the Ninth Circuit, but that won't last; the warden already has counsel, Deputy Attorney General Catherine Chatman. The case will be heard next term.

Read the Ninth Circuit's unanimous opinion authored by Judge Betty B. Fletcher here.

No Criminal Review Grants This Week.  The California Supreme Court granted review in just one criminal case this week, but it was just a "grant and hold" pending the decisions in Black and Towne, the Blakely cases.

Review Grants. This week the California Supreme Court granted review in four cases, but all had briefing deferred pending other cases. So no new issues to think about.

This Week's Cal. Supreme Court Review Grants:

People v. Calhoun, no. S129896:

"Was defendant subject to an enhancement under Vehicle Code section 2001, subdivision (c), for fleeing the scene after 'committing' the offense of gross vehicular manslaughter although he was convicted of that crime as an aider and abettor?"

Read the court of appeal (4th Dist., Div. 1) opinion here.

People v. Thompson, no. S130174:

"Was suppression of blood-alcohol evidence warranted when police, responding to a citizen's fresh complaint of drunk driving, entered defendant's house without a warrant to effect a misdemeanor arrest?"

Read the court of appeal (2d Dist., Div. 6) opinion here.

People v. Wilson, no. S130157: 

"May a DNA expert testify to a match between the perpetrator's and defendant's genetic profiles based on different racial databases if the prosecution has not first provided independent evidence of the perpetrator's race?"

Read the court of appeal (1st Dist., Div. 3) opinion here.

Of course, the Court also granted review in several cases with deffered briefing pending  and BlackTowne.

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.

Review Granted: Dismissal of Information for Failure to Grant O.R. to Defendant When 10-Day Period to Hold Preliminary Hearing Was Extended. People v. Standish, Cal. Supreme Court no. S129755.

Here's a summary of the issue and holding from the Court of Appeal opinion:

Penal Code section 859b requires that a criminal defendant’s preliminary examination be held within 10 court days from the time of arraignment or plea, if the defendant is in custody. The 10-day period may be extended for good cause, but the defendant must be granted a conditional release on his or her own recognizance (O.R.) pending the hearing. Respondent Jared Jacob Standish’s preliminary hearing was extended past the 10-court-day period, but his request to be released on his own recognizance was denied. Subsequently, upon Standish’s pre-trial motion, pursuant to section 995 the superior court set aside an information charging him with various offenses, on the ground section 859b had been violated. Plaintiff and appellant the People of the State of California appeal the superior court’s order. We conclude the failure to grant Standish the statutorily-mandated O.R. release denied his substantial rights, entitling him to relief under section 995. We therefore affirm the trial court’s order.

Review Granted: Dismissal of Information for Failure to Grant O.R. to Defendant When 10-Day Period to Hold Preliminary Hearing Was Extended. People v. Standish, no. S129755

Here's a summary of the issue and holding from the Court of Appeal opinion:

Penal Code section 859b requires that a criminal defendant’s preliminary examination be held within 10 court days from the time of arraignment or plea, if the defendant is in custody. The 10-day period may be extended for good cause, but the defendant must be granted a conditional release on his or her own recognizance (O.R.) pending the hearing. Respondent Jared Jacob Standish’s preliminary hearing was extended past the 10-court-day period, but his request to be released on his own recognizance was denied. Subsequently, upon Standish’s pre-trial motion, pursuant to section 995 the superior court set aside an information charging him with various offenses, on the ground section 859b had been violated. Plaintiff and appellant the People of the State of California appeal the superior court’s order. We conclude the failure to grant Standish the statutorily-mandated O.R. release denied his substantial rights, entitling him to relief under section 995. We therefore affirm the trial court’s order.

Last Week's Review Grants.In addition to a grant & hold in People v. Caudillo, pending People v. Cage (post-Crawford def'n of testimonial), and several new cases being held for Black & Towne (does Blakely apply to Cal. sentencing), the Cal. Supreme Court, last week, granted full review in one case, People v. Vasquez, S128854, which presents this issue:

Are defendants entitled to reversal on the ground the trial court erred in denying defendant Vasquez’s request to recuse the entire Los Angeles County District Attorney’s Office in light of his allegations that he was being treated more harshly due to his parents’ long-term employment in that office?

Read my post on the court of appeal opinion here.

More Cert. Grants From Last Week.

Fed. Circuit Court's Authority to Withdraw Opinion. Bell v. Thompson, no. 04-514. In this capital case, the court limited review to the state's (Tennessee's) second question, which SCOTUSBlog describes as "tests the authority of a federal appeals court to withdraw an opinion against a habeas petitioner six months after the mandate had to have been issued." The Sixth Circuit's opinion in this case shows that the court withdrew its opinion after staying the mandate. It looks like the case dragged on for some time and, perhaps, the question has something to do with the outer limits of staying a mandate or withdrawing an opinion after the mandate should have, but didn't, issue. Hopefully we'll here a little more about this soon.

Relation Back Doctrine Applied to Amendment of Federal Habeas Petition. Mayle v. Felix, 04-563. My post on the Ninth Circuit's opinion in this case describes the question presented and that court's answer (acknowledging an inter-circuit split):

The Question: "[W]hen a habeas petitioner challenging a state conviction amends his federal petition to include a new claim, does the amendment relate back to the date of filing of his petition and thus avoid the one-year limitation of the Antiterrorism and Effective Death Penalty Act (“AEDPA”), 28 U.S.C. § 2244(d)(1)?"

The Answer: "We join the Seventh Circuit in concluding that a prisoner’s new claim arises out of the same transaction or occurrence as his original petition because the transaction or occurrence in issue is his state trial and conviction."

Mr. Felix is represented by David Porter, Assistant Federal Defender from the Eastern District of California; Deputy A.G. Matthew Chan represents the state.

Voluntariness of Plea/Inconsistent Prosecutorial Theories. Mitchell v. Stumpf, 04-637.  I'm not sure of the precise question to be reviewed, but the Sixth Circuit's opinion shows that that court ruled for the capital habeas petition on two grounds:"first, that his guilty plea was unknowing and involuntary because he was manifestly not aware that specific intent was an element of the crime to which he pleaded guilty and, second, that Stumpf’s due process rights were violated by the state’s deliberate action in securing convictions of both Stumpf and Wesley for the same crime, using inconsistent theories."Apparently the state identified Stumpf as the shooter in his proceeding and named the co-d as the shooter at the co-d's trial. The inconsistent theories issue does need some attention and has gotten it recently from the Ninth Circuit (see post here) and the California Supreme Court (see post here). Stumpf may not, however, be a case involving knowing use of inconsistent theories as the state claimed that the testimony used in the co-d's trial was not available at the time of Stumpf's proceeding.

SCOTUS Grants Cert in Several Criminal and Habeas Cases.  Here's a description of two. More to follow in another post. 

Peremptory Challenges: Johnson v. California is back, this time with the number 04-6964.  Johnson involves the question of whether California's standard for a prima facie showing of discriminatory use of peremptory challenges satisfies federal constitutional standards. Last term, the Court dismissed the case for lack of jurisdiction because the state court of appeal had not decided all of Johnson's claims. SCOTUS took the view that because the state supreme court had reversed Johnson's court of appeal victory on the peremptory challenge issue, his cases was not final for cert. purposes until he went back to the state court of appeal and obtained a decision on his other claims. For more information, see my earlier posts on the oral argument and the SCOTUS per curiam DIG order. And, here's last term's oral argument transcript.   (Steve Bedrick of Oakland California represents Johnson; Deputy A.G. Seth K. Schalit represents the state.)   

Right to Counsel for Discretionary Direct Appeal Following Guilty Plea. Halbert v. Michigan, no. 03-10198. This is a follow-up of Kowalski v. Judicial Circuit Court (03-407) decided just last month (12/13/04), in which the Court held that the attorneys raising the issue had no standing to assert the rights of indigent clients. In Halbert, the issue was raised on direct review by the pro per defendant, who also filed the pro per cert. petition. According to the state's opposition to the cert petition Opposition to the cert. petition (MS Word version), here are the questions presented:

The Michigan Constitution provides that a criminal defendant who pleads guilty or nolo contendere shall not have an appeal of right and shall have a right to appointed appellate counsel “as provided by law.” A Michigan statute provides, with significant listed exceptions, that a criminal defendant who pleads guilty or nolo contendere shall not have appointed appellate counsel for discretionary appeals for review of the defendant’s conviction or sentence. Petitioner was represented by retained counsel at trial, was convicted on his pleas, and was sentenced according to the Michigan Sentencing Guidelines. His requests for appointed counsel to help prepare an application for leave to appeal were denied by the trial court.

I. Does the Fourteenth Amendment guarantee a right to an appointed appellate attorney in a discretionary first appeal of an indigent criminal defendant convicted by a guilty plea?

  II. Was Petitioner deprived of the right to the effective assistance of counsel when retained trial counsel did not object to the scoring of Prior Record Variables and Offense Variables in determining the proper minimum sentence range under the Michigan Sentencing Guidelines?

(I'm not sure if question II was included in the cert. grant.)

Consular Rights Violation to Be Reviewed. As has been widely noted already, the U.S. Supreme Court has granted certiorari in a case involving a violation of the Vienna Convention on Consular Relations. These cases typically involve interrogations and/or prosecutions conducted without notifying a foreign defendant of his or her right to contact his consulate.  According to SCOTUSBlog, the questions presented include:

"1. In a case brought by a Mexican national whose rights were adjudicated in the [World Court's] Avena Judgment, must a court in the U.S. apply as the rule of decision, notwithstanding any inconsistent U.S. precedent, the Avena holding that the U.S. courts must review and reconsider the national's conviction and sentence, without resort to procedural default doctrines?

"2. In a case brought by a foreign national of a State party to the Vienna Convention, should a court in the U.S. give effect to the [World Court's] LaGrand and Avena Judgments as a matter of international judicial comity and in the interest of uniform treaty interpretation?"

Click here for a post on the case by TalkLeft, with a link to a NYT article.
 

The case Medellin v. Dretke, no. 04-5928.

No Cal. Supreme Court grants of review in criminal cases this week. Read the order list .

Recent Cal. Supreme Court Review Grants.

People v. Salas, S126773 (B159750) (rev. gr. 9/29/04), which, according to the docket, presents this question:

Is Corporations Code section 25110, which makes it unlawful "to offer or sell in this state any security . . . unless such sale has been qualified . . . or unless such security or transaction is exempted," a strict liability crime, or is it a general intent crime requiring that the defendant know that what he or she sold were unqualified securities and have knowledge of facts making the securities nonexempt?

Neil Rosenbaum of San Francisco and Douglas Benedon of Woodland Hills represent the appellants; Deputy A.G. Lance Winters represents the state. Read my original post on the court of appeal opinion here.

Oct. 6, 2004: no conference; oral argument week.

Blair v. Superior Court, no. S126541 (rev. gr. 10/13/04), court of appeal no. B171673. According to the docket,

This case includes the following issues: (1) What is the proper test for determining whether defendant made a prima facie showing that Hispanic residents were not fairly represented on jury venires in Santa Barbara County? (2) Can the county's facially race-neutral practice of permanently deeming unqualified for jury service any presumptively eligible person who fails to return a single jury questionnaire be found to constitute systematic exclusion of Hispanic residents of the county based on evidence that the practice results in disproportionate exclusion of such residents from jury service? (3) Is the local jury selection procedure at issue in this case consistent with the provisions of Code of Civil Procedure section 203, which set forth the permissible grounds for finding an individual ineligible for jury service?

Read the Court of Appeal opinion here.

People v. Adams, no. S127373 and People v. Cage, no. S127344 (rev. gr. 10/13/04). According to the docket, these cases present the following Crawford issue:

Are all statements made by an ostensible crime victim to a police officer in response to general investigative questioning "testimonial hearsay" within the meaning of Crawford v. Washington (2004) 541 U.S. ___, 14 S.Ct. 1354 and inadmissible in the absence of an opportunity to cross-examine the declarant, or does "testimonial hearsay" include only statements made in response to a formal interview at a police station?

In the Court of Appeal in Adams, William Capriola of Sebastopol represented the appellant; Deputy A.G. Janis Shank represented the state. Read my post on the Court of Appeal opinion in Adams here. In the Court of Appeal in Cage, Jeanne Courtney Van Derhoff represented the appellant and Deputy A.G. Scott Taylor represented the state. Read my post on the court of appeal opinion in Cage here.

People v. Pokovich, no. S127176 (rev. gr. 10/13/04) presents the question "May a defendant be impeached at trial with statements made during a compelled competency examination?" In the Court of Appeal, Hayes Gable represented the appellant and Deputy A.G. Ruth Saavedra represented the state. Read my post on the Court of Appeal decision in Pokovich here.

Review Grants. Yesterday, the Cal. Supreme Court announced a full grant of review in two criminal cases and a grant & hold in one other.

Jury Selection. Review was granted (at the AG's request) in People v. Cottle, no. S126550. Here's what I said in my post about the Court of Appeal decision in Cottle, no. C043594 (Cal.Ct.App. 6th Dist., filed 6/8/04; pub. 6/21/04): "improper denial of request to reopen jury selection after jury was sworn, but before alternates were sworn, is reversible error. (Motion to reopen was based on juror providing additional information, after jury was sworn, about ability to be fair.)"

Pitchess. The Court also granted review (at the requst of the City of Santa Ana) in a Pitchess case, People v. Garcia, no. S127432 Here's what I said about the Court of Appeal opinion in Garcia: "Defense Counsel May File Sealed Declaration in Support of Pitchess Motion for Discovery of Police Officer Personnel Records" and "In addition to holding that declarations in support of Pitchess motions may be filed under seal, the court outlined procedures for such sealed proceedings."

Gang Enhancements. In People v. Miranda, no. S126607 (Court of Appeal no. B162992), the court granted the AG's petition for review (while denying the appellant's cross petition) and ordered briefing stayed pending People v. Lopez, no. S119294 , which, according to the docket, presents this question:

Is a defendant who is convicted of first degree murder with a finding that the crime was committed for the benefit of a criminal gang within the meaning of Penal Code section 186.22, subject to an enhancement of 10 years under section 186.22, subdivision (b)(1)(c) or a minimum parole eligibility term of 15 years section 186.22, subdivision (b)(5), which applies where the defendant is convicted of "a felon punishable by imprisonment in the state prison for life?

Review Grant: Review of Section 1385 dismissal; Defense of Entrapment by cstoppel. People v. Chacon, S125236. (B164649; 118 Cal.App.4th 427; Los Angeles County Superior Court; BA219058.) According to the court's weekly summary:

This case presents the following issues: (1) When the trial court denies the prosecution’s pretrial motion to exclude evidence relevant to a defense, and consequently the prosecution asserts that it is unable to proceed to trial and obtains dismissal of the action pursuant to Penal Code section 1385, do the People have a right to appeal from the dismissal order? (2) In what circumstances may a pretrial evidentiary ruling properly justify a discretionary dismissal in the furtherance of justice pursuant to Penal Code section 1385, subdivision (a), and what factors should a trial court consider in exercising its discretion? (3) In an appeal from a pretrial order of dismissal pursuant to that section, when, if ever, are the merits of evidentiary rulings preceding the order of dismissal reviewable in that appeal? (4) Should California law recognize the defense of entrapment by estoppel, and if so, can this defense bar a criminal conviction when the defendant relies on the advice of a city attorney regarding the legality of her actions under state law?

Read my post on the original opinion here, and the court of appeal opinion here.

Cal. Supreme Court This Week. No conference. No review grants.

Review Granted on Knock-Notice Issues. The California Supreme Court granted the Attorney General's petition for review today in People v. Murphy, no. S125572. According to the docket, the questions are limited to:

1) Whether exigent circumstances justified officers' noncompliance with the knock-notice rule in conducting a probation search of defendant's residence, and (2) if not, whether the inevitable discovery doctrine applies to the knock-notice violation?

This is the second time up for this case. The first time, the supreme court transferred the case back to the Court of Appeal, for reconsideration in light of the U.S. Supreme Court's decision in U.S. v. Banks.

Read the court of appeal (4th Dist.; Div. 1) opinion here.

Review Grant: Relief for Sanders Error. Last Wednesday, the Cal. Supreme Court granted the Attorney General's petition for review in People v. Moore, S125314. According to the court's weekly summary, Moore presents this question: "When the trial court hearing on a defendant’s motion to suppress evidence preceded this court’s decision in People v. Sanders (2003) 31 Cal.4th 418 and the record does not reveal whether or not the police were aware of defendant’s parole condition at the time of the search, should an appellate court simply reverse defendant’s conviction or should it remand the matter to the trial court for a new suppression hearing?"

Sharon M. Jones of Ventura represented Moore in the Court of Appeal; Deputy A.G. Bradley A. Weinreb represnted the state.

Read the unpublished court of appeal opinion here.

No Criminal Case Review Grants for Cal. Supreme Court Last Two Weeks. See weekly summaries here and here.

Cal. Supremes To Review Whether There's a Catchall Category of Offenses for Juvenile Sex Offender Registration. In re Derrick B., S124205. (F043067; 116 Cal.App.4th 1352.

According to the Court's weekly summary the question presented is: Does Penal Code section 290, subdivision (a)(2)(E), authorize the juvenile court to order a ward to register as a sex offender for committing an offense not listed in section 290, subdivision (d)(1), or does subdivision (d) of section 290 set forth the exclusive grounds upon which a juvenile court ward can be ordered to register as a sex offender under section 290?

Read my post on the court of appeal opinion here and read that opinion here.
In the court of appeal, the minor was represented by Dale Juan Blea of Oakhurst and Deputy A.G. Janet Neeley represented the state.

Waiver Rule as Applied in Juvenile Appeals to Be Reviewed. The Cal. Supreme Court weekly summary for last week identifies the following question presented for In re Sheena K., no. S123980:

Is a challenge to a condition of juvenile probation as unconstitutionally vague or overbroad waived or forfeited by the failure to object to the condition at the time of the dispositional hearing in juvenile court?

Read my post from last week on Sheena K. here.