Criminal Appeal

Ninth Circuit Standards of Review Outline Updated

Last week the Ninth Circuit posted an updated version of its Standard of Review outline. This is an invaluable resource for Ninth Circuit practitioners.

Judicial Review of Prison Discipline

In a prison discipline case decided today the Cal. Court of Appeal described the standard of appellate review of the superior court's ruling on the habeas (de novo) and the trial court's standard for review of the administrative fact-findings (some evidence). In re Zepeda (Cal.Ct.App. (4th Dist./Div. 1) no. D047776, filed Aug. 14, 2006).

Updated Standards of Review Outline. The September 2004 version of the Ninth Circuit Standards of Review Outline is out. Tom Carter of Judge Otto Skopil's chambers produces this useful and insightful (the outline is used internally at the court) outline, which includes general principles of standards of reviews and issue-specific standards, with lots of case citations.

Upon Reviewing Grant of New Trial Motion, Reviewing Court Examines Determination that Juror Misconduct Was Prejudicial for Abuse of Discretion. People v. Ault, no. S119948 (Cal.Supreme Court, Aug. 16, 2004).

Holding: "[W]hen a trial court, after examining all the relevant circumstances, grants a new trial in a criminal case on grounds that proven misconduct was prejudicial, that determination is not subject to independent or de novo review on appeal, but may be affirmed unless it constituted an abuse of discretion."

Justice Baxter authored the six-judge majority opinion. Justice Brown dissented, concluding the result is inconsistent with decisions holdings that de novo review applies to: (1) defense appeals of denials of new trial motions, (2) prosecution appeals of new tiral motion orders findings of error, (3) prosecution appeals of orders granting writs of habeas corpus for jury misconduct.

Denial of Motion to Strike (Cal. Pen. Code sec. 1385) Prior Strike Allegation is Reviewed for Abuse of Discretion. People v. Carmony, no. S115090 (Cal.Supreme Court, July 8, 2004) (author: Brown; unanimous.)

Note: Justice Moreno (with Justice Chin concurring) wrote a short separate concurring opinion emphasizing that the Court's decision that there was no abuse of discretion in the denial of the motion to strike in this case did not preclude a finding, upon remand, that the sentence violated the 8th Amendment. Justice Moreno was clearly troubled by the life sentence in this case:

it is difficult to escape the conclusion that the electorate that enacted the Three Strikes law did not intend to impose a life sentence on someone whose last offense was a technical violation of the sex offender registration statute --- failing to register within five days of his birthday although he had registered a month earlier and had not changed his address since then --- that posed no danger to the public. This case joins the growing ranks of cases in which life sentences were imposed after the commission of minor felonies.

9th Cir.: Collateral Attack on Deportation Proceedings

In U.S. v. Pallares-Galan, 02-10532, the Ninth Circuit, in an appeal following a conditional guilty plea, reversed a conviction for unlawful reentry by a deported alien, having found that the underlying deportation proceedings were procedurally defective. The Court found the defendant's California conviction for annoying/molesting a minor (Cal. Pen. Code § 647.6(a)), was not categorically an aggravated felony. This finding rendered erroneous the Immigration Judge's advice, in the deportation proceedings, that he was not eligible for the discretionary relief of cancellation of removal. Which, in turn, rendered his waiver of his right to appeal the deportation neither considered nor intelligent. His collateral attack on the deportation was not barred by the exhaustion requirement and he was deprived of a meaningful opportunity for administrative and judicial review. The court remanded for a finding as to whether Pallares was prejudiced by the procedural defects.

Of interest to appellate litigators might be the court's rejection of the government's argument that plain error review applied because the appellant had not argued in the district court that the annoying/molesting offense was not categorically an aggravated felony. Applying the doctrine that claims, but not arguments, are waived and noting that the defendant had consistently argued in the district court that the offense was not an aggravated felony, the court refused to find a waiver and refused to apply plain error review.

Judge Stephen Reinhardt wrote the opinion.

Due Diligence Determination Reviewed for Abuse of Discretion

Today, Division Three of the Fourth Appellate District of the California Court of Appeal held, in People v. Shane, no. G032339, that a trial court's due diligence determination in deciding a statutory speedy trial claim is reviewed for an abuse of discretion. The unanimous opinion was authored by Justice William F. Rylaarsdam.