Criminal Appeal

Dear Court Reporters (or should I say, "DEAR COURT REPORTERS")

Dear Court Reporters,

Having finished reading another all-capitalized reporter's transcript it's time to again implore you to remember that the proper use of capitalization is not simply a matter of style, but it is more a convention designed to assist the reader and prevent headaches. Capitalization helps the reader find the beginning of the sentence. Lower case letters are easier to discriminate from each other.

So no more all-caps, please.

Sincerely,

A tired reader.

P.S. This applies to brief writers too. As the Seventh Circuit reminds us, "Underlined, all-caps, boldface text is almost illegible."

AG Promulgates AEDPA Opt-In Regs

The U.S. Attorney General has promulgated regulations governing opt-in procedures for states seeking fast-track consideration of capital federal habeas cases under AEDPA.  As reported by the CJLF, the determinations of whether states qualified for fast track proceedings used to be made by the courts, but the USA PATRIOT Improvement and Reauthorization Act of 2005 gave the rule-making and certification-of-states authority to the U.S. AG.

The states can now begin to ask the AG for certification. Of course, there will be a new AG hearing those applications for certification.

2254(d) "Contrary To" Prong Explicated

Last week, in Frantz v. Hazey, no. 05-16024 (9th Cir., Jan. 22, 2008) an en banc Ninth Circuit panel clarified how a federal habeas court is to proceed when it finds that a state court decision is contrary to US Supreme Court authority.

Under subdivision (d)(1) of 28 USC sec. 2254, habeas relief is available to a state prisoner who shows that the state court decision is contrary to or constitutes an unreasonable application of US Supreme Court authority. The question for the court was whether habeas relief is available simply upon a showing that the state court applied the wrong constitutional standard. In an opinion authored by Judge Berzon, the court explained that the petitioner, beyond showing that the state court decision was "contrary to" SCOTUS caselaw, must also show an actual constitutional violation. This is because subdivision (a) of section 2254 permits habeas relief only to remedy a violation of the federal constitution (or, rarely, federal laws or treaties). Whether there is such a violation of the federal constitution is a question reviewed de novo, giving no deference to the state court decision because it was contrary to SCOTUS authority. In addition, under this de novo review, the federal habeas court is not limited to the reasoning of the state court, although there are some limitations: (1) the court's "review is confined to the alleged wrong and the actual course of events at trial and on appeal" and (2) "when the constitutional right itself is tied to the
reasons for a trial court’s decision ... even on de novo review we must focus on the trial court’s reasoning to determine whether a constitutional violation occurred."

Ninth Circuit Takes First Step Toward Electronic Filing

Last week, the Ninth Circuit announced that it is beginning implementation of an electronic case management and electronic case filing system (CM/ECF). For now, counsel and parties can elect to receive email notification of docket activity. According to the announcement, "[t]he Court plans to implement full electronic case files (ECF) sometime this summer."

Denial of Motion to Withdraw Faretta Waiver Structural Error

In a serious drug prosecution, the defendant asserted his Sixth Amendment right to represent himself pursuant to Faretta v. California (1975) 422 U.S. 806. During jury selection he changed his mind and asked the trial court to appoint counsel on his behalf. The trial court denied that request as well as a second one.

Although criminal defendants do not have an absolute right to withdraw Faretta waivers and reassert the right to counsel, under the circumstances of this case, Division Seven of the Second District Court of Appeal concluded that the trial court abused its discretion in denying the defendant's requests for counsel on the first day of trial.

The trial court denied the defendant's second request to withdraw his Faretta waiver because it found that the jury had already been selected and sworn, the delay would be disruptive to the codefendant, and the defendant's prior attorney was still engaged in trial and unavailable. The Court of Appeal deemed these reasons insufficient because there was "no indication in this record [the defendant] was attempting to manipulate the right to counsel for any improper purpose. [The defendant's] stated reason for requesting counsel was legitimate: He realized immediately after the proceedings commenced he was incapable of understanding the proceedings and conducting a defense."

Upon finding an abuse of discretion, the Court of Appeal went on to hold that "[b]ecause deprivation of counsel at a critical stage of a criminal trial is federal constitutional error that affects the framework within which the trial proceeds, 'with consequences that are necessarily unquantifiable and indeterminate,' the error is structural and reversal is required without analysis of prejudicial effect." In applying the federal structural error standard found in Sullivan v. Louisiana (1993) 508 U.S. 275, 282, the Court of Appeal rejected the approach adopted by several other California Courts of Appeal that have analyzed the error under the harmless error standard articulated in People v. Watson (1956) 46 Cal.2d 818, 836 for state law errors.

According to the Court of Appeal, "while a violation of the right to the effective assistance of counsel, derived from the Sixth Amendment’s purpose of ensuring a fair trial, generally requires a defendant to establish prejudice, the right to select counsel of one’s choice . . . has been regarded as 'the root meaning of the constitutional guarantee': 'Deprivation of the right is "complete" when the defendant is erroneously prevented from being represented by the lawyer he wants, regardless of the quality of the representation he received.'” Therefore, the denial of the defendant's request to withdraw his Faretta waiver was structural error.

The unanimous opinion was authored by Presiding Justice Dennis M. Perluss.

People v. Lawrence, no. B193831 (Cal.Ct.App. (2nd Dist., Div. Seven) filed 1/2/2008)

At NGI Extended Commitment Trials Jurors Must Be Instructed On The Issue Of Whether The Person Has Serious Difficulty Controlling Dangerous Behavior

In In re Howard N. (2005) 35 Cal.4th 117, the California Supreme Court held that in order to comport with federal due process principles the extended commitment scheme for minor wards (Welf. & Inst. Code, § 1800, et seq.) must be construed to require proof that the person under commitment has serious difficulty controlling dangerous behavior. Since Howard N. was decided, a number of Courts of Appeal have addressed whether this “control” element applies to not guilty by reason of insanity (NGI) extended commitment proceedings as well.

The First, Third, and Fifth Districts have all concluded that due process compels such a finding at NGI extended commitment proceedings. (People v. Zapisek (2007) 144 Cal.App.4th 1151 [First District]; People v. Galindo (2006) 142 Cal.App.4th 531 [Third District]; People v. Bowers (2006) 145 Cal.App.4th 870 [Fifth District].)

Because all three of these cases involved court trials, none of them offered the occasion to determine whether a corresponding instructional duty in a jury trial existed as well. Division Two of the First District Court of Appeal, however, recently addressed the question of whether instruction on this element is required in a jury trial. In People v. Sudar (A115464), the Court of Appeal held that “the trial court erred in failing to instruct the jury pursuant to Howard N.” that it had to find the insanity acquittee had “‘at the very least, serious difficulty controlling his potentially dangerous behavior.’” The Court of Appeal also concluded that failure to instruct on the “control” element is subject to the Chapman harmless error standard of review applicable to federal constitutional trial errors. Pursuant to that standard, the Court of Appeal found the instructional error in this case non-prejudicial and affirmed the insanity acquittee's extended commitment.

The unanimous opinion was authored by Presiding Justice J. Anthony Kline.

People v. Sudar, no. A115164 (Cal.Ct.App. (1st Dist., Div. Two) filed 12/18/07, ordered published 1/2/2008)

Words May Constitute Sufficient Provocation To Reduce Murder To Manslaughter

In a murder prosecution, the trial court instructed the jury pursuant to CALCRIM no. 917 that mere words cannot establish a defense to battery. In addition, the court allowed the prosecutor to argue to the jury that words cannot legally constitute provocation to reduce a homicide to manslaughter.

While it is a correct statement of the law that words cannot establish a defense to battery, words of abuse, insult or reproach may incite the heat of passion specified in the Penal Code section 192 definition of manslaughter, and therefore may constitute sufficient provocation to reduce the offense of intentional homicide from murder to manslaughter.

In light of these principles, the Sixth District Court of Appeal reversed the defendant's second degree murder conviction, concluding that the combination of the instruction given and the prosecutor's argument to the jury improperly "removed consideration of appellant's confrontation with his wife, and her insulting response, from the jury's evaluation of provocation and its impact on appellant's state of mind." Because consideration of these highly relevant factors may have prevented the jury from convicting the defendant only of voluntary manslaughter, the Court of Appeal deemed the errors prejudicial.

The unanimous opinion was authored by Justice Franklin D. Elia.

People v. Le, no. H030808 (Cal.Ct.App. (6th Dist.) filed 12/27/07)

SVP Recommitments and Indeterminate Terms, Take 2

As noted in a previous post, two California appellate courts recently concluded that individuals subject to two-year sexually violent predator (SVP) civil commitments at the time the electorate passed Prop 83 can face the prospect of indeterminate terms upon expiration of their current commitments. In People v. Carroll (F051709), the Fifth District Court of Appeal has reached the same result, noting that to hold otherwise would lead to "absurd consequences." In addition, California Supreme Court recently denied review on this question in People v. Shields.

In Carroll, the Fifth Disrtict Court of Appeal also fended off a few related challenges. The district attorney in that case filed an extended commitment petition before the SVP Act was amended to provide for indeterminate terms. Therefore, the commitment petition sought to impose a two-year commitment. By the time the commitment trial commenced several months later trial, the SVP Act had been amended to provide for indeterminate terms. At that time, the district attorney announced that an indeterminate term would be sought rather than the two-year term identified in the petition. After a court trial, the defendant was committed as an SVP for an indeterminate term. The Fifth District Court of Appeal concluded that the defendant waived any objection to the amendment of the petition by failing to object.

The Court of Appeal did, however, reject two of the defendant's challenges to the petition on the merits. First, the Court of Appeal dispensed with the defendant's due process challenge to the adequacy of the notice he was given on the merits, noting that the "allegations against which Carroll needed to be prepared to defend – most importantly, that he continued to have a current diagnosable mental disorder, by reason of which he was likely to engage in sexually violent criminal behavior in the future – were unaffected by the amendment."

In addition, the Court of Appeal held that because the petition was amended and the trial occurred after the indeterminate term provisions took effect utilization of the newly-added indeterminate term provisions of the SVP Act did not constitute an impermissible retroactive application of the statute.

The unanimous opinion was authored by Presiding Justice James A. Ardaiz.

People v. Carroll, no. F051709 (Cal.Ct.App. (5th Dist.) filed 12/27/07)

Traffic Stops and Temporary Operating Permits

A police officer initiated a traffic stop because the vehicle he observed had expired registration tags on its license plates. The officer subsequently discovered drugs in the vehicle and arrested the driver. The driver then brought a Fourth Amendment suppression motion. At the ensuing suppression hearing, the officer testified that he would have stopped the vehicle regardless of whether he saw a temporary operating permit displayed on the vehicle. The defense offered testimonial and documentary evidence that a temporary operating permit was in fact displayed. The trial court denied the suppression motion, noting that it did not find the defendant's testimony regarding the temporary operating permit credible.

Division Two of the First District Court of Appeal reversed the denial of the defendant's suppression motion. In so ruling, the Court of Appeal held that under these circumstances the officer had an obligation to at least look for a valid temporary operating permit as he followed the vehicle in question. Without doing so, the officer could not have formed a reasonable suspicion that the vehicle was not properly registered.

The Court of Appeal, however, was quick to limit the scope of its holding. It did not hold that officers who observe expired registration tabs have an affirmative duty to look for an operating permit prior to conducting a traffic stop. Thus, it appears the Court of Appeal was particularly troubled that the officer in this case would have stopped the vehicle regardless of whether he saw a temporary operating permit displayed on the vehicle. In addition, the Court of Appeal rejected the defendant's appellate contention that, as a matter of law, an officer who stops a vehicle with expired registration must check for the temporary operating permit as soon as the stop is affected, and release the vehicle as soon as he determines that a temporary operating permit is in place.

The unanimous opinion was authored by Presiding Justice J. Anthony Kline.

People v. Dean, no. A115164 (Cal.Ct.App. (1st Dist., Div. Two) filed 12/21/07)

California appellate courts have wrestled with a number of different fact patterns involving traffic stops and temporary operating permits of late. However, the question of whether an officer may stop a vehicle that has an expired registration tab but also displays a temporary operating permit remains an open one. The California Supreme Court has granted review in two somewhat similar cases though. In People v. Hernandez (S150038) and In re Raymond C. (S149728), the Supreme Court will address the following issue: "If a police officer sees that a motor vehicle lacks a rear or both license plates, may the officer make a traffic stop to determine if the vehicle has a temporary permit or if a displayed temporary permit is a valid one?"

Introduction Of Deceased Victim's Hearsay Statement Merits Reversal Of Manslaughter Conviction

California Evidence Code section 1370 creates an exception to the hearsay rule that permits the introduction of an unavailable witness' statement to a medical professional "made at or near the time of the infliction or threat of physical injury."

In this case, appellant was charged with second degree murder and spousal abuse. The prosecution's theory was that the victim died approximately nine months after the defendant twisted her neck. The victim had started seeing doctors within a week after her purported injury but specifically denied that she had suffered any trauma to her neck until almost two months after the incident in question. It was not until almost two months later that she told a doctor that the defendant had twisted her neck nearly two months earlier.

Pre-trial, the defense moved to exclude evidence of her statement to the doctor regarding the alleged neck-twisting as hearsay and violative of her Sixth Amendment confrontation rights under Crawford. The trial court admitted the statement under Evidence Code section 1370. The defendant was later convicted of voluntary manslaughter and spousal abuse.

A divided panel of Division One of the Fourth District Court of Appeal reversed the convictions. The two-justice majority concluded that "absent special circumstances, a statement about a physical injury made almost two months after its infliction does not satisfy the statutory time limit" found in Evidence Code section 1370 that the statement be made "at or near" the time of the event. The majority deemed the erroneous admission of this hearsay statement to be prejudicial because the victim may have had an incentive to fabricate the statement at issue. Because the majority decided the issue on hearsay grounds, it declined to address the constitutional Confrontation Clause issues.

In a concurring opinion, Justice Judith L. Haller disagreed with the majority's conclusion that the requirements of Evidence Code section 1370 were not met but agreed that reversal was required, finding the admission of the victim's statement to be in violation of the defendant's confrontation rights under Crawford.

Justice Haller eschewed the more rigid "at or near" test adopted by the majority and suggested that "the Legislature intended to provide a trial court discretion to admit a statement if it was made when the incident was fresh in the victim's mind and not so long after the incident to put into question the statement's trustworthiness and reliability." In her view, this test was satisfied on the facts of this case.

Nevertheless, noting that the Attorney General conceded the statement in question was "testimonial," Jutsice Haller, without any analysis, opined that admission of the statement violated the defendant's confrontation rights, thus meriting reversal.

The majority opinion was authored by Justice James A. McIntyre.

People v. Quitiquit, no. D050385 (Cal.Ct.App. (4th Dist., Div. 1) filed 9/12/07)

The People's petition for review and request for depublication in the California Supreme Court are pending as of today.

Did Prop 83 Eliminate The SVP Extended Commitment Scheme?

In November 2006, the voters enacted Prop 83, which substantially amended the state's sexually violent predator (SVP) civil commitment law, which had also recently been amended by the Legislature in September 2006. Under the old law, commitments were two years in duration. At the conclusion of the two-year commitment, the government had to prove once again beyond a reasonable doubt that the person met the commitment criteria. Upon such a showing, the person was then committed for another two-year period subject to the same recommitment scheme every two years. Prop 83, however, eliminated this recommitment scheme and replaced it with a framework whereby the initial commitment would be for an indeterminate period of time, thus obviating the need for recommitment trials. Instead, in order for an SVP to gain release after Prop 83, the burden is now on the SVP to request a hearing and prove by a preponderance of the evidence that he or she no longer meets the commitment criteria.

In a strange oversight, however, Prop 83 completely eliminated the code section governing extended commitments. As a result, for those people committed as SVPs prior to the passage of Prop 83, there no longer exists an explicit statutory mechanism to extend their commitments. Nevertheless, district attorneys have continued to bring recommitment petitions alleging that post-Prop 83 extensions should be for indeterminate terms. The SVPs facing these extended commitment petitions have, in turn, brought a bevy of dismissal motions, arguing that the framework's omission of a recommitment scheme post-Prop 83 requires their release. Not surprisingly, two Courts of Appeal have recently decided the electorate did not intend for all SVPs committed prior to the adoption of Prop 83 to be released.

In Bourquez v. Superior Court (C055402), the Third District Court of Appeal held that "[b]y changing the terms of commitment under the SVPA from two-year terms to indefinite terms, the Legislature and then the voters demonstrated an intent to keep those found to be sexually violent predators (SVPs) committed until they no longer meet the definition of an SVP. From the very purpose of the amendment of the SVPA, a saving clause is implied. Under the implied saving clause, the superior court has jurisdiction to proceed on the petitions to extend petitioners' commitments. Under the provisions of the SVPA, as amended by SB 1128 and by Proposition 83, the petitions to extend commitment are petitions for indefinite commitment."

Similarly, in People v. Shields (D050034), Division One of the Fourth District Court of Appeal rejected the SVP's assertion that "the court had no jurisdiction to find him to be an SVP and recommit him because [Welfare and Institution Code] section 6604' s two-year commitment procedure has been eliminated and the amended SVP statute fails to expressly refer to persons already confined for two-year terms under former section 6604. We reject this contention because Shields's proposed statutory interpretation is contrary to the clear legislative intent."

A petition for review was filed in the California Supreme Court on October 31, 2007 in Shields and is currently pending.

Cal. Supreme Court Vacates Death Sentence On Faretta Grounds

In between the guilt and penalty phases of a capital murder trial, the defendant brought a Faretta motion to represent himself at the penalty phase. Although the trial court had found the defendant competent to stand trial, it denied appellant's Faretta motion based on a finding of mental incapacity to represent himself. The United States Supreme Court, however, has held that the test for competency to stand trial is the same as the test for competency to represent oneself. Thus, if the defendant was competent to stand trial, as the court found him to be, then he was also competent to represent himself, irrespective of any perceived mental deficiencies. Therefore, although the Court affirmed the jury's guilt finding, it reversed the death sentence. Justice Werdegar wrote the majority opinion, which was joined by every justice except Justice Kennard, who filed a concurring and dissenting opinion.

In Justice Kennard's separate opinion, she disagreed with the portion of the majority's opinion affirming the jury's guilt finding as to the two murder counts. Justice Kennard was troubled by the fact that over defense objection, the trial court permitted the prosecutor on cross-examination to ask the defense expert witness, a forensic psychiatrist, whether he had advised defendant’s attorney “that there just was insufficient evidence to present a psychiatric defense.” The expert had in fact expressed that opinion and still held it at the time of his testimony. He testified that he did not think “there was sufficient evidence to support what we call a diminished intent defense . . . to knock it down from murder one to murder two . . .” and “that there was insufficient evidence to even raise a reasonable doubt.”

As even the majority acknowledged, that testimony was inadmissible under Penal Code section 29, which provides: “In the guilt phase of a criminal action, any expert testifying about a defendant’s mental illness, mental disorder, or mental defect shall not testify as to whether the defendant had or did not have the required mental states, which include, but are not limited to, purpose, intent, knowledge, or malice aforethought, for the crimes charged. The question as to whether the defendant had or did not have the required mental states shall be decided by the trier of fact.”

While the majority concluded that the erroneous admission of this testimony was non-prejudicial, Justice Kennard noted that the only reasonable interpretation of this testimony was that, in the expert's opinion, the defendant had the mental state necessary for first degree murder during the acts in question. Moreover, she believed there was a reasonable probability that the trial court’s error led the jury to discredit the defense expert's earlier testimony on direct examination describing the defendant’s serious mental illness and its symptoms. In Justice Kennard's opinion, without this error, there was a reasonable probability that the jury would have entertained a reasonable doubt that the defendant acted with premeditation and deliberation during the killings.

People v Halvorsen, no. S008112 (Cal. Supreme Ct., filed 8/30/07)

Possession Of Cocaine Base For Sale Not Necessarily Lesser Included Offense Of Selling Cocaine Base

The defendant in this case was convicted for both selling cocaine base in one count and possessing that same rock for sale in a second count. A panel of the Third District Court of Appeal held that the possession for sale count was not a lesser included offense of the selling count and therefore concluded that the defendant could be convicted of both offenses. (The sentence on the possession for sale count, though, was properly stayed under Penal Code section 654 ,which bars multiple punishment for one indivisible course of conduct.)

As a threshold matter, the Court of Appeal stated that courts should not consider the evidence actually adduced at trial in determining whether one offense is necessarily included within another. According to the Court of Appeal, neither the statutory elements test nor the accusatory pleading test aided the defendant's claim that the possession for sale count was necessarily included in the selling count. Under the statutory elements test, a conviction for the greater offense of selling the cocaine does not require, as one of its statutory elements, the lesser offense of possessing the cocaine for sale, because possession is not an essential element of the sale offense. As an example, the Court of Appeal noted that "one can broker a sale of a controlled substance that is within the exclusive possession of another." Regarding the accusatory pleading test, the Court of Appeal, with little analysis, observed, "the information here simply charged defendant, as relevant, with selling cocaine base (count one) and with possessing cocaine base for sale (count two). Nothing more was alleged."

The defendant's petition for review was recently denied by the California Supreme Court, although Justice Moreno was of the opinion that it should have been granted.

The unanimous opinion was authored by Justice Rod Davis.

People v. Murphy, no. C046923 (Cal.Ct.App. (3rd Dist.) filed 8/29/07)

Are Juvenile Adjudications Prior Convictions Under Apprendi and Blakely? Take 2.

On June 29, 2007, in People v. Nguyen (H028798), a two-justice majority of a panel from the Sixth District Court of Appeal concluded that "the use of a juvenile adjudication to enhance the defendant’s sentence beyond the ordinary, statutorily-mandated maximum sentence, pursuant to the Three Strikes law violates the defendant’s Apprendi rights, whether he was adjudicated a juvenile offender after a contested hearing or pursuant to an admission."

On August 27, 2007, a unanimous panel from Division Four of the First District Court of Appeal issued a decision in People v. Tu (A105905), which, contrary to Nguyen, held that "since a juvenile court can constitutionally and reliably adjudicate a delinquency matter without affording the minor a jury trial, there is no constitutional impediment to the subsequent use of the juvenile adjudication for purposes of enhancing an adult offender’s sentence."

Given this conflict, not surprisingly, the California Supreme Court granted review of the decision in Nguyen on October 10, 2007. More to follow...

Cal. Supreme Court Splits On Admissibility Of "Eulogy" Video At Capital Sentencing Hearing

During the penalty phase of the defendant's capital trial, the court permitted the prosecution to show the jury a videotape prepared by the victim's mother portraying the victim's life. The trial court concluded, under Evidence Code section 352, that the videotape was more probative than prejudicial.

In Justice Chin's majority opinion, the California Supreme Court reiterated the principles recently discussed in People v. Prince (2007) 40 Cal.4th 1179, which permitted the use of videotapes regarding the victim so long as the prosecution does not introduce "irrelevant or inflammatory material that diverts the jury’s attention from its proper role or invites an irrational, purely subjective response." Prince provided the following guidance: "“[c]ourts must exercise great caution in permitting the prosecution to present victim-impact evidence in the form of a lengthy videotaped or filmed tribute to the victim. Particularly if the presentation lasts beyond a few moments, or emphasizes the childhood of an adult victim, or is accompanied by stirring music, the medium itself may assist in creating an emotional impact upon the jury that goes beyond what the jury might experience by viewing still photographs of the victim or listening to the victim’s bereaved parents. . . . In order to combat this strong possibility, courts must strictly analyze evidence of this type and, if such evidence is admitted, courts must monitor the jurors’ reactions to ensure that the proceedings do not become injected with a legally impermissible level of emotion.”

The majority described the video at issue in this case in the following manner: "It lasts about 20 minutes. It consists of a montage of still photographs and video clips of Sara Weir’s life, from her infancy until shortly before she was killed at the age of 19, narrated calmly and unemotionally by her mother. Throughout much of the video, the music of Enya — with most of the words unrecognizable — plays in the background; the music is generally soft, not stirring. One segment shows Sara singing a couple of songs with a school group, including 'You Light Up My Life.' Part of the time she was singing solo, with her mother explaining that every student was required to sing solo. The videotape concerns Sara’s life, not her death. It shows scenes of her swimming, horseback riding, at school and social functions, and spending time with her family and friends. The closest it comes to referring to her death is the mother’s saying near the end, without noticeable emotion, that she does not want to dwell on this 'terrible crime.' There is no mention of the facts of the murder or of defendant. The video ends with a brief view of Sara’s unassuming grave marker followed by a video clip of people riding horseback in Alberta, Canada, over which the mother says this was where Sara came from and was the 'kind of heaven' in which she belonged."

The majority acknowledged that the Enya music and the video clip of people riding horseback in Canada did not appear to be relevant. However, in light of Prince, the majority concluded that the defendant was not prejudiced by the admission of the video in question. Finding no prejudice, the majority explicitly declined to rule whether the trial court abused its discretion in permitting the prosecution to introduce the video.

Justice Werdegar filed a concurring opinion in which she opined that the trial court abused its discretion in admitting the videotape because it was "unduly lengthy, has elements of theatricality in the use of evocative music and visions of the victim’s place in the hereafter, and goes beyond a factual presentation of the victim as she was in life . . . ." Nevertheless, she agreed with the majority that the error was not prejudicial.

Justice Moreno filed a concurring and dissenting opinion in which he described the video as being "akin to a eulogy" and "precisely the kind of tape that we warned against admitting in Prince." Therefore, like Justice Werdegar, he would have found the trial court's ruling permitting introduction of the video to be an abuse of discretion. But, like all members of the Court, he, too, could not "say that this additional evidence so inflamed the passions and the sympathy of the jury that the penalty phase was rendered unfair."

People v Kelly, no. S049973 (Cal. Supreme Ct., filed 12/6/07)

Sealed Juvenile Records May Not Be Unsealed For Use In SVP Proceedings

The Board of Parole Hearings (BPH) petitioned the juvenile court to disclose an adult prisoner's juvenile records that had been sealed pursuant to Welfare and Institutions Code section 781 (Section 781). BPH intended to use the sealed records to evaluate whether the person met the sexually violent predator (SVP) civil commitment criteria. The juvenile court summarily granted BPH's petition without holding a hearing.

Because Section 781 provides a brief, exhaustive list of situations in which sealed juvenile records may be disclosed that does not encompass use for SVP proceedings, Division Three of the First District Court of Appeal reversed the order disclosing the prisoner's juvenile court records. The proper rule of statutory construction, the Court reasoned, "'is that the statement of limited exceptions excludes others, and therefore the judiciary has no power to add additional exceptions; the enumeration of specific exceptions precludes implying others.'”

Moreover, the Court of Appeal rejected the Attorney General's argument that recent amendments to the Sexually Violent Predator Act (SVPA) found in Prop 83 - adopted by the voters in November 2006 - necessarily created an implied exception to Section 781 allowing the use of sealed juvenile court records in SVP proceedings. While the voters obviously intended to make SVP commitments easier, the voters accomplished that express aim in very specific ways, such as: requiring fewer prior qualifying offenses, allowing the use of certain unsealed juvenile prior adjudications, and making more prior crimes qualifying offenses. Therefore, the Court of Appeal concluded that not construing Prop 83 in the manner proposed by the Attorney General would not render the initiative's amendments to the SVPA a nullity or frustrate voter intent.

Lastly, although the Court of Appeal declined to reach the prisoner's constitutional claims, it did recognize his right to due process and note that it was "questionable whether appellant had adequate notice and an opportunity to be heard," as the juvenile court granted the petition for disclosure a mere seven days after a copy of the petition was mailed to him while he was an incarcerated prisoner unrepresented by counsel.

The Court of Appeal therefore vacated the order disclosing the prisoner's juvenile court records, and directed the juvenile court to secure the return of all relevant documents.

The unanimous opinion was authored by Justice Peter J. Siggins.

In re James H., no. A116315 (Cal.Ct.App. (1st Dist., Div. 3) filed 8/31/07)

Hospitals Can Be Prisons Too

Pursuant to a California statute that provides for the transfer of mentally ill prisoners to state hospitals, the defendant in this case was transported from a state prison to Atascadero State Hospital. Shortly after his arrival at the hospital, he struck a nurse in the face. The defendant was subsequently convicted of violating California Penal Code (PC) section 4501.5, which makes it a felony for any person “confined in a state prison who commits a battery” upon a nonprisoner. The Court of Appeal reversed his conviction, finding that appellant was not "confined in a state prison" at the time of the battery because the incident occurred while he was at the hospital. The California Supreme Court reversed the Court of Appeal's decision and affirmed the conviction.

Writing for a unanimous Court, Chief Justice George concluded that a prison inmate transferred to a state hospital under this scheme meets the definition of a person “confined in a state prison” set forth in PC section 4504, which includes a person who, at the time of the offense, is “temporarily outside the walls or bounds of the prison.” The Court reached this conclusion even though a prisoner transferred to a state hospital in accordance with PC section 2684 is placed in the hospital for an indefinite period of time - “until in the opinion of the superintendent the person has been treated to the extent that he or she will not benefit from further care and treatment in the state hospital” - and may never return to prison.

In the Court's view, "[t]he circumstance that a prisoner transferred to Atascadero for mental health treatment pursuant to section 2684 may never return to prison in the event the prisoner never sufficiently recovers from his or her mental illness, is immaterial to the question of whether a transfer under that provision is 'temporary' within the meaning of section 4504, subdivision (b)." Rather, the Supreme Court relied upon the fact that such transfers are not necessarily permanent. Since the transfer statute expressly contemplates the possibility of a return to prison, the prisoner remains "confined in state prison" while at the hospital. In addition, the Court declared its result consistent with administrative regulations and public policy, in that its construction of the relevant statutes affords state mental health workers the same protection as state employees employed in correctional institutions who come into contact with prison inmates.

People v Watson, no. S131052 (Cal. Supreme Ct., filed 12/17/07)

California Trial Courts Have The Discretion To Strike Certain Deadly Weapons Enhancements

After a jury convicted the defendant in this case of robbery and assault charges and found true a special allegation that the defendant personally used a deadly or dangerous weapon in violation of California Penal Code (PC) section 12022(b)(1), the trial court imposed a prison term that included a one-year enhancement for the weapon use. The court also denied Jones’s request to stay or strike the deadly weapon enhancement, stating it lacked discretion to do so.

However, Division Seven of the Second District Court of Appeal concluded that imposition of the one-year enhancement was not mandatory and that trial courts retain the discretion to strike this enhancement in the furtherance of justice pursuant to PC section 1385(c). Therefore, the Court of Appeal remanded the matter in order for the trial court to exercise its discretion whether to impose or strike the enhancement.

In arriving at this result, the Court of Appeal first noted that the inherent authority of trial courts to strike enhancements should not be curtailed without clear proof of legislative attempt to do so. Against this backdrop, the Court rejected the Attorney General's contention that the Legislature's express affirmation of the authority to strike certain enhancements found in other subdivisions of PC section 12022 necessarily means trial courts are divested of this authority with respect to the subdivision at issue in this appeal. At the same time, the Court of Appeal found persuasive the fact that the Legislature has affirmatively stripped trial courts of the authority to strike certain enhancements but has never done so with respect to the deadly weapon enhancement found in PC section 12022(b)(1). In light of the absence of the “clear and unmistakable” intent required to restrict the authority of the trial court to consider, in its discretion, striking the one-year deadly weapon-use enhancement imposed under section 12022, subdivision (b)(1), the Court of Appeal ultimately determined that trial courts do have such authority.

The unanimous opinion was authored by Presiding Justice Dennis M. Perluss.

People v. Jones, no. B193759 (Cal.Ct.App. (2nd Dist., Div. 7) filed 12/17/07)

Petty Theft With A Prior Is A Lesser Included Offense Of Robbery

A jury convicted a criminal defendant of one count of second degree robbery in violation of California Penal Code (PC) section 211 and one count of petty theft with a prior theft-related conviction in violation of PC section 666. Both counts arose out of a single incident. The alleged victim of the robbery charge was a store employee, and the alleged victim of the petty theft count was the store itself.

Division Eight of the Second District Court of Appeal reversed the petty theft conviction because it was a lesser included offense of the robbery count. Robbery cannot be committed without necessarily committing petty theft. This is true even though the petty theft offense here included the added allegation of a prior conviction. According to the Court: "a defendant cannot be convicted both of robbery and petty theft with a prior, arising from the same incident, because the prior conviction is a sentencing factor, rather than an element, so petty theft with a prior is a lesser included offense of robbery." In reaching this result, the Court rejected the Attorney General's argument that both convictions may survive because different victims were alleged in the two counts. The store employee was the agent of his employer, so, legally, the crimes had the same victim even though the information alleged the employee and the store as two separate victims.

The unanimous opinion was authored by Justice Madeleine Flier.

People v. Villa, no. B195363 (Cal.Ct.App. (2nd Dist., Div. 8) filed 12/17/07)

Late-Filed Civil Commitment Petition Requires Dismissal

California Penal Code section 2960 et seq. provides for the civil commitment of certain mentally disordered offenders (MDOs) during and after their parole period. The MDO Act contains a number of statutorily created deadlines that govern the original commitment and extended commitment proceedings.

In a unanimous decision, the California Supreme Court today ruled that Penal Code section 2972's requirement that an extended commitment petition must be filed prior to the expiration of an MDO's most recent commitment was mandatory. Therefore, in this case, the district attorney's failure to file such a timely petition deprived the trial court of jurisdiction and required dismissal of the MDO extended commitment petition.

In so ruling, the Supreme Court rejected the Attorney General's contention that even if the filing deadline were mandatory, the trial court need only dismiss the petition if, under the particular facts of a given case, the missed filing deadline violated the MDO's due process rights. As the Supreme Court acknowledged, however, "determining whether an MDO’s due process rights were violated by a delayed petition would often be futile" because "more often than not, an MDO would be unable to show prejudice if his or her mental disorder is not in remission." Therefore, the mere fact that the MDO would have been recommitted anyway because he continued to suffer from his severe mental disorder did not render the denial of his right to annual review under the MDO Act non-prejudicial.

Justice Chin authored the Court's opinion.

People v Allen, no. S141913 (Cal. Supreme Ct., filed 8/13/07)

Two Cal. Supreme Court Rulings Blunt Impact Of Cunningham

In a pair of unanimous opinions authored by Chief Justice George, the California Supreme Court dealt a major blow to criminal defendants in California hoping to gain reduced sentences by virtue of the U.S. Supreme Court's Cunningham decision.

In People v. Black, no. S126182A, the California Supreme Court first held that a single valid aggravating factor is sufficient to authorize the upper term. Thus, even if the trial court imposed the upper term while in part relying on a circumstance other than the fact of a prior conviction that was neither admitted by the defendant nor proven to a jury beyond a reasonable doubt, there is no constitutional violation so long as at least one other aggravating factor fell under the recidivist exception for the fact of a prior conviction (or was admitted by the defendant or proven to a jury beyond a reasonable doubt). Because there is no constitutional violation when a trial court has based its selection of the upper term on a mix of valid and invalid factors, reviewing courts need not conduct any prejudice inquiry. Second, the Black Court concluded that the aggravating factor set forth in California Rules of Court, rule 4.421 (b)(2) - that the “defendant’s prior convictions . . . are numerous or of increasing seriousness” - falls within the exception for the fact of a prior conviction and therefore need not be proven to a jury beyond a reasonable doubt. Lastly, the Court in Black held that Cunningham did not apply to the imposition of consecutive sentences, meaning that factual findings necessary to impose consecutive sentences need not be proven beyond a reasonable doubt or to a jury either.

In People v. Sandoval, no. S148917, the California Supreme Court blunted the impact of Cunningham even further. In Sandoval, the Court found that the imposition of the upper term in that case did violate the defendant's Sixth Amendment jury right and that she was prejudiced by the error under the Chapman standard. However, the Court determined that the propery remedy on remand would be to conduct a new sentencing hearing consistent with the Legislature's post-Cunningham fix, which permits the trial court to exercise its discretion to impose any of the lower, middle, or upper terms without engaging in any factfinding. Selection of the upper term under this new scheme will not be disturbed on appeal absent an abuse of discretion, which means defendants will need to make the near-impossible showing that the trial court's imposition of the upper term was arbitrary or capricious.

Cal. Supreme Court Upholds Death Sentence Over Kennard's Dissent

The California Supreme Court affirmed the conviction and death sentence of a man found to have murdered and dismembered a woman in order to prevent her from testifying against him in another case.

While Justice Kennard concurred in the portion of the majority opinion upholding the defendant's convictions, she would have reversed the imposition of the death penalty.  In Justice Kennard's view, the fairness of the penalty phase was undermined by two prejudicial errors. 

First, the trial court should have granted defense counsel’s request to ask prospective jurors if they would invariably impose the death penalty in a case involving dismemberment of the murder victim’s body.  At capital sentencing hearings, both sides are entitled to ask questions of potential jurors specific enough to determine if those jurors harbor bias, as to some fact or circumstance shown by the trial evidence, that would cause them not to follow an instruction directing them to determine a penalty after considering aggravating and mitigating evidence.  On this point, Justice Kennard took issue with the majority's conclusion that the dismemberment of the victim’s body was not a circumstance that could cause a reasonable juror invariably to vote for death regardless of the strength of the mitigating evidence.

Justice Kennard identifed a second penalty phase error requiring reversal as well.  In closing argument at the penalty phase, the prosecutor quoted passages from the Bible as authority for the death penalty.  Specifically, the prosecutor quoted, among other Bible verses, Genesis chapter 9, verse 6, which reads: “whoever sheds the blood of man, by man shall his blood be shed, for in his image did God make man.”  According to Justice Kennard, a prosecutor’s argument to the jury that the Bible authorizes or demands the death penalty for murder creates the risk that such argument may diminish the jury’s sense of responsibility for its verdict and imply that another, higher law should be applied in capital cases, displacing the law in the court’s instructions.  Justice Kennard acknowledged that the defendant forfeited this argument because of defense counsel's failure to lodge a timely objection, but she would have reached the issue anyway because the failure to object deprived the defendant of the effective assistance of counsel.

The majoirty opinion was authored by Justice Baxter.

People v Zambrano, no. S035368 (Cal. Supreme Ct., filed 7/30/07)

Cal. Supreme Court Overturns Death Sentence

In a rare capital habeas victory, the California Supreme Court unanimously reversed a jury's death sentence and ordered a new penalty hearing based on new evidence that a third party actually committed the murders in question. According to the Court, defense counsel provided constitutionally deficient representation by failing to investigate adequately available evidence of third party culpability. Reversal of the death sentence was required because there was a reasonable probability that the jury would not have imposed the death penalty had the evidence merely established that the defendant was a co-conspirator rather than the acutal killer. With that principle in mind, though, the Court declined to reverse the defendant's murder conviction because the evidence established that the defendant's participation in a conspiracy to commit murder rendered him liable for first degree murder irrespective of the possibility that a third party actually killed the victims.

The unanimous opinion was authored by Justice Werdegar.

In re Hardy, no. S022153 (Cal. Supreme Ct., filed 7/26/07)

Firearm Sentence Enhancements Not Subject To Prohibition Against Multiple Punishment

Accoridng to California Penal Code section 654 (PC 654), an act that is made punishable in different ways by different provisions of the Penal Code may be punished under either provision but not both. The ban on multiple punishment applies not only when there is one act in the ordinary sense, but also when the crimes arise as the result of an indivisible course of conduct.

California Penal Code section 12022.53 (PC 12022.53) provides substantial sentence enhancements for using a firearm in the commission of certain felonies.

In this case, the trial court imposed three enhancements pursuant to PC 12022.53 based on a single shot fired at a single victim during the simultaneous commission of three qualifying offenses. The defendant argued - and the Court of Appeal agreed - that PC 654 required the trial court to stay all but one of the sentence enhancements.

In a unaninous opinion, however, the California Supreme Court held that the sentence enhancement provisions of PC 12022.53 are not limited by the multiple punishment prohibition of PC 654. In the Supreme Court's view, the Legislature made clear that it intended to create a sentencing scheme unfettered by PC 654 when in enacted PC 12022.53.

Importantly, though, the Supreme Court once again stopped short of embracing the Attorney General's far-reaching argument that PC 654 never applies to sentence enhancements. Instead, it opted to "leave that question for another day." To be continued...

The unanimous opinion was authored by Justice Corrigan.

People v. Palacios, no. S132144 (Cal. Supreme Ct., filed 7/12/07)

Life Sentence for 0.03 grams of Meth

Yesterday, Marin Superior Court Judge Stephen Graham imposed a 25-to-life sentence for simple possession of 0.03 grams of methamphetamine under California’s Three Strikes law.  (People v. Foroutan, No. 114626A.)  The defendant has never committed a crime of violence and his prior strikes were residential burglaries, the most recent of which was from 1992. 

Full disclosure:  Mr. Foroutan is represented by the Stanford Law School Criminal Defense Clinic, which provides free legal services to inmates serving three strikes sentence for non-violent offenses.  I am a supervising attorney at the clinic.  This blog ordinarily doesn’t publicize our own cases, but I’m obviously making an exception.   

Retroactive Application of New Rule of Evidence Does Not Violate Ex Post Facto Clause

The Ninth Circuit held today that retroactive application of California Evidence Code Sec. 1108, which permits introduction of evidence prior sexual misconduct, does not violate the Ex Post Facto Clause.  (Schroeder v. Tilton, No. 06-15391 (Wallace, Chudahy, McKeown))  A California habeas petitioner convicted of molesting two grandchildren argued that prosecutors improperly admitted evidence that he also molested his children when they were young.  Evidence Code Sec. 1108 was not in effect when the petitioner committed his crimes.  The Ninth Circuit concluded the state court's decision to admit the evidence was not contrary to Carmell v. Texas, 529 U.S. 513 (2000), which holds that the Ex Post Facto Clause prohibits retroactive application of new rules of evidence that may lower the state’s burden of proof at trial.

Another Unusual Habeas Decision from the Ninth Circuit

In a per curiam opinion, the court affirmed a grant of habeas to a California prisoner convicted of murder in 1992.  (Pulido v. Chrones, No. 05-15916 (Goodwin, O’Scannlain, Thomas))  The issue is the standard of harmless error review applied to a jury instruction error.  The California Supreme Court had affirmed the conviction, ruling that the error—which mistakenly allowed the jury to convict on two grounds, one of which was unconstitutional—was harmless beyond reasonable doubt under Chapman v. California.  On  federal habeas, the District Court held that such errors were “structural” and not subject to harmless error review.  The Ninth Circuit panel agreed. 

The unusual part of this case comes from separate concurrences by Judges O’Scannlain and Thomas.  Judge O’Scannlain agreed that the conviction could not stand under controlling Circuit authority, Lara v. Ryan, 455 F.3d 1080 (9th Cir. 2006), but then argued that Lara was wrongly decided and should be reversed en banc.  Judge Thomas also concurred, in order to take issue with Judge O’Scannlain.  Judge Thomas defended Lara as good law and argued further that habeas relief was warranted even if Chapman applied because the error in this case was not harmless beyond reasonable doubt.

But why the per curiam opinion?  Did Judge Goodwin (the third member of the panel) write it anonymously?  I doubt it.  Otherwise, his name would have been on the majority opinion, with concurrences by O’Scannlain and Thomas.  My hunch is that the majority opinion was either (reluctantly) written by Judge O’Scannlain, who was forced to concur with himself when his colleagues refused to let him call for reversal of Lara in a majority opinion.  Or Judge Thomas wrote the majority opinion and felt compelled to answer Judge O’Scannlain’s concurrence separately.  Either way, the peculiar configuration of the judges in this case suggests that this was a hard-fought decision.  Judge Thomas was clearly committed to granting the petition under any standard; and Judge O’Scannlain obviously did not want to grant relief but had no choice.  I'm sure Judge O’Scannlain is marshaling his confederates  on the court for an en banc vote.

Kudos to Brad O’Connell, of FDAP, who successfully argued this case.

Conflict of Interest Claims Do Not Apply to Appellate Counsel

The Ninth Circuit held that, under federal habeas review, conflict of interest claims do not apply to appellate counsel.  Foote v. Del Papa, No. 06-15094 (Wallace, Thomas, Ezra).  The court reasoned that there is no “clearly established” law on the subject:  “No Supreme Court case has held that an ‘irreconcilable conflict’ between a defendant and his appointed appellate counsel violates the Sixth Amendment.”

New and Improved Execution Protocol

From today's L.A. Times:

"Seeking to end judge's ban on executions, officials propose 'pain-free' method."

Click here for the story.

Supreme Court Reverses Ninth Circuit in Capital Case (Again)

The U.S. Supreme Court reversed the Ninth Circuit in an Arizona death penalty case today.  Schriro v. Landrigan, No. 05-1575.  Writing for a five-member majority, Justice Thomas ruled that the defendant instructed his attorney not to present mitigating evidence at his sentencing hearing and that therefore the admitted errors his trial attorney made in failing to develop a mitigation case were harmless.  Thus, the district court did not abuse its discretion in denying an evidentiary hearing on the defendant's federal habeas petition.  An en banc panel of the Ninth Circuit came to the opposite conclusion last year, holding that the defendant’s instructions to his trial attorney were taken out of context and, in any event, any such instructions by the defendant were neither informed nor knowing.  The Ninth Circuit held further that evidence of organic brain damage discovered after defendant’s trial warranted a new sentencing hearing in state court.  Justice Stevens, writing for the dissenting Justices, “emphatically” agreed with the Ninth Circuit en banc court, concluding with the cynical observation that “[i]n the end, the [majority’s] decision can only be explained by its increasingly familiar”—but misguided—“effort to guard the floodgates of litigation.”