Criminal Appeal

CA Carjacking Statute Requires Serious Potential For Harm

Division Two of California's Second District Court of Appeal reversed the defendant's carjacking conviction under Penal Code section 215. According to the Court, the purpose of that statute is not served by applying it under circumstances where the victim’s only connection to the stolen automobile was her ability to access the automobile’s keys left in her office of employment. Section 215, the Court reasoned, was designed to address a particularly serious crime that victimizes persons in vulnerable settings and, because of the nature of the taking, raises a serious potential for harm to the victim, the perpetrator and the public at large.

The unanimous decision was authored by Justice Kathryn Doi Todd.

People v. Coleman, no. B186264 (Cal.Ct.App. (2nd Dist., Div. 2) filed 1/23/07)

Confession Voluntary; Expert Testimony on Interrogation Properly Excluded; Intent Evidence Sufficient; Remanded for Resentencing. People v. Ramos, no. B166003 (Cal.Ct.App. (2d Dist., Div. 3) Aug. 27, 2004).

1. Confession Voluntary. The court found the defendant's confession was not the product of an improper promise of leniency. Trial court properly credited officer's version of interrogation in which officer told defendant his cooperation would benefit him in the judicial process and that he would present the fact of the defendant's cooperation to the district attorney for consideration. The court of appeal found that it was proper for the trial court to reject the defense version (which was supported by a police report) that included only the promise of leniency, without any mention of the district attorney's role.

2. No error in exclusion of expert testimony on police interrogation:

[the officer] did not misrepresent the state of the evidence to Ramos, did not subject him to a polygraph examination and did not question him repeatedly over an extended period of time. Thus, as the trial court concluded, the defense failed to demonstrate the need for [Dr.] Leo’s expert testimony. Moreover, the trial court expressly indicated its ruling was tentative and that it would revisit the issue if the evidence adduced at trial suggested Leo’s expert testimony was relevant. Because the jury could understand and evaluate all the evidence presented at Ramos’s trial without the assistance of an expert on police interrogation, we find no abuse of discretion in the trial court’s order excluding Leo’s testimony.

3. Evidence of Intent to Kill Sufficient. Intent to kill element of attempted murder satisfied by evidence that appellant was a gang member, came to party armed with other armed gang members, parked around the corner from the party, ran to front yard when he heard fellow gang member had been in a fight, pulled his gun, aimed it car full of rival gang members, and fired. In finding the evidence sufficient, the court also relied upon expert gang testimony.

4. Minimum Parole Eligibility Term. On Count 1, court imposed life with possibility of parole for attempted murder, plus 10 years and 15 years, respectively, for gun and gang enhancements. This was error, as sentenced should have been a life term with a minimum term of 15 years prior to parole eligibility: "the criminal street gang enhancement found at section 186.22, subdivision (b)(5), requires service of a 15-year term before parole eligibility, not a 15- year enhancement."

5. Consecutive Indeterminate Term Served In Full. On second count of attempted premeditated murder, court imposed life term and enhancements of 1/3 of the 10-year gun enhancement and 1/3 of the 15-year gang enhancement. This was error: "section 1170.1, subdivision (a), which directs that a consecutive subordinate term shall consist of one-third the middle term or one-third of the term imposed for an enhancement, does not apply to indeterminate sentences."

Evidence that defendant made false claim of U.S. citizenship (18 USC 911) was insufficient where he checked box stating: "I attest, under penalty of perjury, that I am . . . [a] citizen or national of the United States.” U.S. v. Kararouni, no. 03-10327 (9th Cir., Aug. 24, 2004).

The disjunctive made the difference.

Panel: Ferguson, Reinhardt (author), and Paez

Insufficient Evidence of Aiding and Abetting Fraud by Co-Telemarketers. U.S. v. Tarallo, no. 02-50252 (9th Cir., Aug. 20, 2004).

The defendant was convicted on six counts of securities fraud (15 U.S.C. §§ 78j(b) & 78ff; 17 C.F.R. § 240.10b-5) and four counts of mail fraud (18 U.S.C. § 1341). We reverse his convictions with respect to three vicarious liability counts for lack of evidence.

Sufficiency of the Evidence: For vicarious liability counts, lack of jury instructions on "coschemer liability" theory barred finding evidence sufficient under that theory. The Court also rejected the government's argument that, in this telemarketing scheme, the defendant "aided the transactions at issue by taking a 20 percent commission on his sales, while the balance of the 'invested' money was available (and in part used) for paying expenses of the telemarketing operations." As the court explained,

The government reasons that, merely by bringing money into the shop, Defendant aided the actions of his fellow telemarketers. We disagree. There was no evidence that Defendant, when generating revenues, intentionally aided any of his coworkers in committing their own frauds, as distinct from making money for himself. Nor did the government present evidence that the money brought in by Defendant was used specifically to support the frauds charged

Security Fraud: "a defendant may commit securities fraud 'willfully' in violation of 15 U.S.C. § 78ff and 17 C.F.R. § 240.10b-5 even if the defendant did not know at the time of the acts that the conduct violated the law" and "a defendant may commit securities fraud 'willfully' by intentionally acting with reckless disregard for the truth of material misleading statements."

Apprendi: "15 U.S.C. § 78ff is not facially unconstitutional as a violation of Apprendi v. New Jersey, 530 U.S. 466 (2000)."

The court also rejected a series of prosecutorial misconduct claims.

Panel: D.W. Nelson, John R. Gibson (8th Cir.), and Graber (author)

Conviction Reversed: Insufficient Evidence of Distribution; Prosecutorial Misconduct (Lying Questioning of Defendant & Vouching). U.S. v. Combs, no. 02-50485 (9th Cir., Aug. 5, 2004).

(1) "[T]he transfer of trace, unuseable amounts of methamphetamine for the purpose of disposal is insufficient to support a conviction for “distribution” under Section 841(a)(1)." On this issue, the Court went so far as to say that the government's "reading of Section 841(a)(1) is technical to the point of absurdity." (2) Prosecutor committed misconduct by repeatedly questioning the defendant about whether a case agent was lying in his testimony. The prosecutor also improperly vouched for the agent by arguing that he would lose his job if he lied on the stand. The court found each instance of misconduct to be plain error and each, standing alone, would require reversal.

This case was prosecuted by the U.S. Attorney for the Central District of California.

Panel: Reinhardt, Thompson, and Wardlaw (author)

Conviction for Interferring With National Park Rangers Affirmed. U.S. v. Bucher, no. 03-10197 (9th Cir., July 20, 2004).

By walking down a National Park trail to warn a person whom park rangers intended to arrest, after rangers had instructed defendant not to return to the trail, defendant interfered with both the rangers and their official duties. (36 C.F.R. § 2.32(a)(1)(2000).) Majority: Farris (author) and Rawlinson.

Judge Noonan, in his dissent, provided this pithy conclusion:

It is a virtue of our judicial system that a $35 fine can be the subject of an appeal. It is a virtue of the members of this court that they can see and state the harshness of penalizing a man for warning his friend. It is not, however, any service to justice to uphold a conviction on the basis of a scenario unsupported by the evidence. I respectfully dissent.

Judge Noonan found no evidence in the record to support the government's and the majority's theory that the defendant, upon reaching the intended arrestee, advised him of the approaching rangers and helped instigate the arrestee's feigned unconsciousness.

Gang Loitering Evid. Insufficient; Assault Weapon Poss. Evid. Sufficient. In re Daniel G., no. B167064 (Cal.Ct.App. 2/8, July 16, 2004).

Holdings: (1) Evidence that minor-defendant was seen passing the rifle to other minors and that the other minors each passed it back to the minor-defendant constituted sufficient evidence of possession; (2) because all people are obligated to learn & comply with the law and becasue the characteristics of the firearm were not obscured, the evidence of the minor's knowledge that the firearm was a prohibited assault weapon was suffiicent; (3) evidence was insufficient to support conviction for violation of L.A. County gang loitering statute.

Evidence Insufficient to Support Finding Juvenile Had Requisite Intent for Burglary and Evidence Insufficient to Support Finding that Juvenile Defendant Was the One Who Vandalized Grandmother's Home. In re Leanna W., no. H026222 (Cal.Ct.App. 6th Dist., June 13, 2004).

"[P]ossession of another’s cancelled credit card constitutes possession of access card account information with respect to an access card validly issued to another." (Cal.Pen.Code sec. 484e(d).) People v. Molina, no. B169153 (Cal.Ct.App. (2/5), July 7, 2004) (partial publ.)

12021 with 186.22(b) Enc. is Serious Felonly; Evid. Suffic. Activite Participation Street Gang; Prior Gun Possession Properly Admitted. People v. Martinez, no. G032245 (Cal.Ct.App. 4/3, June 30, 2004).

Holdings: (1) Evidence was sufficient for conviction for active participation in a criminal street gang (Cal.Pen.Code sec. 186.22(a)), where "members attempted murders, engaged in drive-by shootings and vehicle burglaries, illegally possessed firearms, and shot at an inhabited building," despite fact that tesifying police officer expert never stated that such activities were a "primary activity" of the group. (2) No undue prejudice in admission of prior possession of a similar firearm two years earlier. (3) prior conviction for violating section 12021(d) (possession of a firearm while on probation) along with a 186.22(b) enhancement is a serious felony, within the meaning of sec. 1192.7(c)(28).

Evid. Suffic. and No Instructional Error in Connection With Conv. for Poss. of Meth While Armed with a Loaded Shotgun. People v. Singh, no. C043114 (Cal.Ct.App. 3d Dist., June 22, 2004) (partial publ.)

No Siren, No Uniform, No Conviction.
Case: People v. Shakhvaladyan, no. B165445 (Cal.Ct.App. (2d Dist., Div. 5) Mar. 30, 2004) (partially published)
Proceeding: Direct criminal appeal following trial based upon preliminary hearing transcript.

Holding: Evidence in support of conviction for evading an officer (Vehicle Code section 2800.2) insufficient because there was no evidence that the officer was wearing a distinctive uniform and activated a siren.

Authoring Justice: Paul Turner.

No Prosecution Under 18 U.S.C. 1001 for False Statements in CJA 23.
U.S. v. McNeil, no. 02-30039 (9th Cir. Mar. 23, 2004)
Nature of Proceeding: Direct criminal appeal following jury trial.
Holding: False statements made in financial affidavit (CJA 23) submitted to court by criminal defendant seeking appointment of counsel cannot be prosecuted under 18 U.S.C. § 1001 because subdivision (b) of that section exempts statements made in judicial proceedings.
Authoring Judge: Senior Circuit Judge Proctor R. Hug

In footnote 2 of the opinion, the court noted there are other ways such false statements can be prosecuted:

Submitting a false CJA-23 form may subject a defendant to criminal liability under other statutes, for example, under 18 U.S.C. § 1621, the general statute on perjury, or 18 U.S.C. § 1623, which punishes the making of a false material declaration in any proceeding before, or ancillary to, any court.

Of course, as we learned last week, summary contempt might not be an option.

No Extortion By Sales. In People v. Sales, no. B156032, the California Court of Appeal (2d Dist., Div. 8) vacated the appellant's attempted extortion conviction for insufficiency in the evidence.

What is more fascinating is that the attempted extortion charge was the only count upon which the jury convicted in a trial in which the defendant represented himself and faced more serious charges, including kidnapping, forcible sodomy, and forcible oral copulation. So, this is not an example of a case in which the defendant's self-representation under Faretta resulted in a proceeding lacking in due process (see my earlier post about a cert. petition making such an argument).

Cal.Ct.App. (6th Dist.): Insuff. Evidence of Trade Secret

In a 2-1 opinion in People v. Laiwala, no. H022070, the California Court of Appeal (6th Dist.) vacated a grand theft of trade secrets conviction (Pen. Code sec. 499c), finding that "the record contains insufficient evidence that information taken by defendant qualified as a trade secret." The majority concluded that information is a trade secret "only if it derived independent economic value from both not being generally known to the public and not being generally known to those who can obtain economic value from its disclosure or use." The prosecutor failed to prove that the alleged trade secret---a master key a associated with a Content Scramble System (this has something to do with descrambling DVD's)---had no independent economic value. Justice Nathan D. Mihara authored the opinion.

Justice Conrad Rushing wrote a short concurrence, disagreeing with the majority's conclusion that section 499c was ambiguous.

9th Cir.: (1) Intent to Distribute Lasting Only a Few Minutes is Sufficient for Possession w/ Intent to Distribute Conviction and (2) Relevant Conduct Includes Drug Quantities Agents Removed from Package Prior to Controlled Delivery

In a unanimous opinion issued this morning in United States v. Johnson, no. 03-30101, the Ninth Circuit rejected sufficiency of the evidence and relevant conduct challenges. The Court found sufficient evidence of possession of methamphetamine with intent to distribute where, prior to opening a controlled-delivery package, the defendant believed it contained a distributable quantity and he intended to distribute that quantity. The sneaky agents, however, had removed 80.9 grams of the original 83.2 grams. This didn't matter to the Court:

we hold that a reasonable jury could find that at the moment when the controlled delivery was made, until Johnson realized he only had enough for his own use, his possession of methamphetamine coincided with his intent to distribute, as evidenced by the distribution paraphernalia around the house. The fact that his intent to distribute lasted only a few minutes is insignificant.

The Court also affirmed the offense level calculation, concluding that the district court correctly included, as relevant conduct, the methamphetamine agents removed from the package prior to the controlled delivery to the defendant. (The original package contained 83.2 grams, but the delivered package contained only 2.3 grams.)

Judge Thomas G. Nelson authored the opinion.

Sufficient Evid. of 2 Counts of Attempted Murder -- Cal.Ct.App. (3d Dist.)

Yesterday, the California Court of Appeal (3d Dist.) held, in the published portion of its opinion in People v. Smith, no. C042876, that the evidence of two counts of attempted murder was sufficient where, as the Court summarized:

In this case, one victim, Karen A., was driving her car. The second victim, her infant son, Renell T., Jr. (the baby), was strapped in a car seat in the back seat right behind Karen, and defendant, Jarmaal Laronde Smith, knew this. Defendant fired a single shot from behind the car. The bullet passed through the rear window, narrowly missed the baby, passed through the headrest on Karen’s seat (but missed her) and lodged in the door of the car.

In the unpublished portion of the opinion, the Court vacated a firearm use enhancement attached to a conviction for discharging a weapon at an occupied vehicle. Such an enhancement cannot apply where firearm use is an element of the substantive charge.

Justice Richard Sims wrote the opinion.