Criminal Appeal

How Appalling Calls it Quits. "This blog is done," says "Bashing" the author of the short-lived, but extremely funny and very popular How Appalling blog. I must, of course, express my deep thanks for the kind mention Bashing made of my blog and the significant traffic s/he sent my way. ;}

Publication Order. On Tuesday, the California Supreme Court ordered publication of the Court of Appeal opinion in Moore v. Superior Court, S122846 (Ct.App. no. C044242) which involved the question of whether the Proposition 36 prior-conviction-washout-period runs from the commission of the prior offense, rather than from the conviction of that prior offense.

Here's some analysis from the Court of Appeal (3d Dist.) opinion:

However, as relevant here, Proposition 36 shall not apply to a defendant previously convicted of a serious or violent felony unless he or she has satisfied a so-called five-year "washout" period, that is, "unless the nonviolent drug possession offense occurred after a period of five years in which the defendant remained free of both prison custody and the commission of an offense that results in (A) a felony conviction other than a nonviolent drug possession offense . . . ." ( § 1210.1, subd. (b)(1), italics added.)

The sole issue is whether it is the commission or the conviction of the prior disqualifying felony that begins the washout period. We hold that the washout period commenced when petitioner committed the disqualifying prior felony, as opposed to when he was convicted of that felony. We shall therefore direct the issuance of the writ of mandate sought by petitioner.

(Emphasis added.)

Because 60 days have passed since it was filed, the unpublished opinion is no longer on the California Court's web site. I did find it here on Lexisone.com (free registration required).

Fishy Fishing Filing May Result in False Instrument Prosecution.
Case: People v. Powers, no. A103622 (Cal.Ct.App. (1st Dist., Div. 4) Mar. 30, 2004)
Proceeding: Prosecutor's appeal of orders sustaining a demurrer to the complaint and denying the a motion to reinstate the complaint.

Holding: Reversed. A fishing activity report required to be filed under the Fish and Game Code and Department regulations is an instrument within the meaning of Penal Code section 115 and a fishing boat operator who files a false fishing activity report with the Department may be prosecuted under section 115 for knowingly offering a false instrument to be filed with a state public office.

Authoring Justice: Patricia K. Sepulveda

Prosecutor May Elicit Testimony That Defendant Did Not Request Live Lineup.
Case: People v. Lewis, no. A098387 (Cal.Ct.App. (1st Dist., Div. 4)) (partially published)
Proceeding: direct criminal appeal following jury trial.

Holding: Prosecutor's eliciting of detective's testimony that defendant did not request a live lineup was not misconduct and did not infringe defendant's right to remain silent.

Authoring Justice: Laurence D. Kay.

California Courts Issued 18 Published Opinions and Orders on March 30. Luckily, they're not all criminal!

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.

Local Crime of Being Present at Illegal Car Race is Not Preempted by State Law.
Case: Foley v. Superior Court, no. D043155 (Cal.Ct.App. (4th Dist., Div. 1) Mar. 30, 2004)
Proceeding: Writ of prohibition seeking dismissal of criminal complaint.

Holding: San Diego's municipal law penalizing being present at an illegal speed contest is not preempted by the state Vehicle Code provision governing (and prohibiting) speed contests. Writ of prohibition denied.

Authoring Judge: Patricia D. Benke

Extraordinary Eyesight is Not a "Special Skill" Under 3B1.3.
Case: U.S. v. Liang, no. 02-10549 (9th Cir. Mar. 31, 2004)
Proceeding: Direct criminal appeal following guilty plea.
Holding: In casino card cheating scheme, extraordinary eyesight is not a “special skill” supporting an enhanced sentence under U.S.S.G. section 3B1.3, which, according to the opinion,

provides for a two-level sentence enhancement "if the defendant abused a position of public or private trust, or used a special skill, in a manner that significantly facilitated the commission or concealment of the offense." The application note defines a “special skill” as “a skill not possessed by members of the general public and usually requiring substantial education, training or licensing. Examples would include pilots, lawyers, doctors, accountants, chemists, and demolition experts.” § 3B1.3, cmt. n.3.

Authoring Judge: Diarmuid F. O’Scannlain

No Reason to Re-Invent the Wheel.
Case: U.S. v. Zurmiller, 03-30266 (9th Cir., Mar. 30, 2004)

Order: Court adopts portion of district court's published opinion: 247 F. Supp. 2d 1161, 1163-69 (D. Mont. 2003). (I haven't read it. Don't know what it's about.)

Equitable Tolling Applies to 2255 Statute of Limitations.
Case: U.S. v. Battles, no. 00-15134 (9th Cir., Mar. 30, 2004)
Proceeding: Appeal from dismissal of motion for post-conviction relief as time barred.

Holding: "The statute of limitations contained in 28 U.S.C. § 2255 is subject to equitable tolling." Former counsel's failure to timely turn over portions of file may form basis for equitable tolling. Case remanded "for a further development of the record on the issue of just what counsel did or did not do, and on the issue of causation."

Authoring Judge (in case you couldn't tell from the word choices): Ferdinand F. Fernandez

Words Counsel Will Be Explaining to Client: antinomy, antiphony, dubiety, benignant.