Criminal Appeal

Govt Can Override Defense Waiver of Jury

In granting a writ of mandamus, an extraordinary remedy, the Ninth Circuit held earlier this week in a per curiam opinion that the government's refusal to consent to a defendant's jury trial waiver did not violate the defendant's right to a fair trial an impartial fact-finder. U.S. v. US Dist Ct, Eastern Dist., no. 06-72498 (filed Oct. 3, 2006). The court held that enforcing Rule 23(a), which requires the government's consent to a jury trial waiver, would not result in an unfair trial in this case involving charges of interstate transportation and sexual abuse of young children. The Court noted that the Supreme Court of the United States, in upholding rule 23(a) in Singer v. United States, 380 U.S. 24 (1965), had acknowledged that there might be a case "where a defendant’s reasons for wanting to be tried by a judge alone are so compelling that the Government’s insistence on trial by jury would result in the denial to a defendant of an impartial trial." This, like Singer, just wasn't the case.

This per curiam opinion was joined by Judges Silverman, Rawlinson, and District Judge William O. Bertelsman (E.D. Kentucky).

"Inherently Dangerous Felony" Is Not a Jury Question.
People v. Schaefer, no. B166733 (Cal.Ct.App. (2d Dist., Div. 8) May 17, 2004).

Holdings: (1) The question of whether a felony is an "inherently dangerous felony" such that it can be a predicate offense for second degree murder is a question of law for the court, not a jury question (even after Apprendi). (2) The accidental death of an accomplice during the manufacturing of methamphetamine (yes, there was an explosion) triggers the felony murder rule. (3) No error in deadly weapon instructions. (4) The law is unsettled over whether a knowledge requirement should be read into section 12020(a), but the court of appeal did not resolve that issue, "because there is no doubt that appellant knew he possessed a short-barreled shotgun."

Note: Another example of the long reach of the felony-murder rule.

No Five-Year Prior Where Jury Finds GBI Allegation Not True; Court Can't Substitute Its Own Finding.
People v. Taylor, no. D042152 (Cal.Ct.App. (4th Dist., Div. 1) Apr. 28, 2004).

Holdings: (1) Cohabitation evidence sufficient for corporal injury on a cohabitant conviction (Cal.Pen.Code sec. 273.5) where defendant & victim had been dating for five months, they were "living together" in defendant's car at the time of the charged offenses, victim was 10 weeks pregnant with defendant's child, they had lived together for periods of time when victim was homeless, and they spent the night before the charged crimes in the defendant's car. (2) Where jury found SBI allegation true, but found GBI allegation not-true, the current offense of corporal injury on a cohabitant is not a "serious" felony under section 1192.7(c) and the five-year prior serious felony enhancement (sec. 667(a)) was erroneously imposed.

Note: Couple interesting things about this opinion: First, the court noted caselaw equating SBI and GBI, but suggested there are some distinctions which could justify the jury's finding of SBI but not GBI. Second, the court found the trial court violated the defendant's right to a jury trial (Apprendi) when it disregarded the jury's not true finding on the GBI allegation and found the current offense to be a serious felony because of the victim's injuries. The court distinguished Alemendarez-Torres, which says there is no federal constitutional right to a jury trial on prior conviction enhancement allegations, on the basis that the finding at issue in this case was a fact (GBI) about the current offense.

9th Cir.: Exception to An Exception

In United States v. Rodriguez-Gonzales, no. 02-50594, the Ninth Circuit held today that each count of a charging document stands alone and a defendant may not be convicted of a felony conviction on a count which does not allege the facts (prior illegal entry into the United States, in this case), which make the offense a felony. The was so even though the allegation of the prior commission could be found in a separate count in the same charging document. The court saw the felony-making nature of the prior commision allegation as taking it out of the Almendarez-Torres exception to Apprendi for prior conviction enhancements.

This case requires us to reconcile the well-established requirement that each count against a defendant in an information or indictment must sufficiently levy the charge in and of itself and thus stand on its own, with the Almendarez-Torres exception to Apprendi, which holds that a prior offense may be used to increase a defendant’s sentence even if the Government’s pleading omitted it. We conclude that when, as in this case, the earlier offense operates not merely to increase a defendant’s sentence, but to transform his second offense from a misdemeanor to a felony, Almendarez-Torres does not apply.

Almendarez-Torres is also distinguishable in that it involved a prior conviction, while Rodriguez-Gonzales involves a prior commission. (I didn't read the opinion closely enough to see if that distinction was also noted.)

Judge Thomas G. Nelson authored the opinion.

Cal.Ct.App. (1st. Dist., Div. 5): Right to Jury Trial on Facts Underlying Prior

In People v. McGee, the California Court of Appeal (1st Dist., Div. 5), relying on Apprendi v. New Jersey (2000) 530 U.S. 466, held yesterday that "a criminal defendant has a federal constitutional right to a jury trial on factual issues relating to the circumstances and conduct underlying a prior conviction used to enhance punishment."