Los Angeles Metro Area Criminal Defense: 2015

Friday, November 27, 2015

People v. Buycks (2015) Cal.App.4th : Prop 47 reduced misdemeanor cannot be used as a felony bail enhancement

In People v. Buycks, Case No. B262023, decided on October 20, 2015, defendant committed a felony narcotics offense (Health & Saf. Code, § 11350) and, while out on bail on that first offense, committed two additional felony offenses: petty theft with a prior (Pen. Code, § 666, subd. (a)) and evading a police officer (Veh. Code, § 2800.2, subd. (a)). In sentencing appellant in the second case, the court imposed a two-year sentencing enhancement pursuant to Penal Code section 12022.1, subdivision (b), which applies when a defendant commits a second felony while out on bail on an earlier felony. After voters passed Proposition 47, the trial court in the first case granted appellant’s petition to reduce his narcotics offense to a misdemeanor. Thereafter, the court in the second case reduced his petty theft with a prior count to a misdemeanor. The second evading police felony count remained, and, because appellant’s original sentence was structured around the petty theft with a prior as the principal term, the court conducted a full resentencing to elevate the remaining felony count to a full base term. The court reimposed the section 12022.1 enhancement. The trial court erred.

Section 12022.1, subdivision (b), provides, “Any person arrested for a secondary
offense that was alleged to have been committed while that person was released from
custody on a primary offense shall be subject to a penalty enhancement of an additional
two years, which shall be served consecutive to any other term imposed by the court.”
Both “primary offense” and “secondary offense” in section 12022.1 are statutorily limited
to felonies. “Primary offense” means “a felony offense for which a person has been
released from custody on bail or on his or her own recognizance prior to the judgment
becoming final, including the disposition of any appeal, or for which release on bail or
his or her own recognizance has been revoked.” (§ 12022.1, subd. (a)(1).) “Secondary
offense” means “a felony offense alleged to have been committed while the p

The precise issue is whether the voters intended section 1170.18, subdivision (k) to preclude the trial court from reimposing the on-bail enhancement when it resentenced appellant in his second case after his felony in the first case was reduced to a misdemeanor. Appellant was subject to a full resentencing in the second case. (See Couzens & Bigelow, Proposition 47, supra, at p. 57 [“Because the Proposition 47 count is part of a multiple-count sentencing scheme, changing the sentence of one count fairly puts into play the sentence imposed on non-Proposition 47 counts, at least to the extent necessary to preserve the original concurrent/consecutive sentencing structure. The purpose of section 1170.18 is to take the defendant back to the time of the original sentencing and resentence him with the Proposition 47 count now a misdemeanor.” (Italics added.); id. at p. 59 [“If the petitioner is resentenced as a misdemeanor on an eligible count, but will remain sentenced as a felon on one or more other counts, the court should resentence on all counts.”]; cf. § 1170.18, subd. (b) [“If the petitioner satisfies the criteria in subdivision (a), the petitioner’s felony sentence shall be recalled and the petitioner resentenced to a misdemeanor.” (Italics added.)]; People v. Navarro (2007) 40 Cal.4th 668, 681 [finding full resentencing on all counts was appropriate “so the trial court can exercise its sentencing discretion in light of the
changed circumstances”].)

Because the court was sentencing appellant anew, it was required to reevaluate the applicability of section 12022.1 at that time. By then, appellant’s felony in the first case had been reduced to a misdemeanor. In that circumstance, the plain language of section 1170.18, subdivision (k) directed that appellant’s prior felony must be treated as a “misdemeanor for all purposes.” Since the plain meaning of section 12022.1 required that both the primary and secondary offenses be felonies in order for appellant to incur the additional penalty, the court could not reimpose the section 12022.1 enhancement.

This case is analogous to People v. Park (2013) 56 Cal.4th 782 (Park), in which
our high court interpreted the nearly identical phrase in section 17, subdivision (b) to
preclude imposition of a sentencing enhancement based on a prior “wobbler” conviction
that had been reduced to a misdemeanor. When the court properly has exercised its discretion to reduce a wobbler to a misdemeanor under the procedures set forth in section 17(b), the statute generally has been construed in accordance with its plain language to mean that the offense is a misdemeanor ‘for all purposes.’” (Park, at p. 793.)

Thus, the two-year on-bail enhancement pursuant to section 12022.1 is stricken.

Copyright © 2015 Christine Esser

The information contained here is for informational purposes only and is not legal advice or a substitute for legal counsel. Online readers should not act upon this information without seeking professional counsel. Information on this blog is not intended to create, and receipt of it does not constitute, an attorney-client relationship between you and Christine Esser. An attorney-client relationship is only established when a written retainer has been signed.

Disclosure: If you click on the link below, you will be directed to the Amazon website. If you make a purchase today, we will receive a nominal commission from your purchase. This will not increase the amount you pay for the item. Check out the deals before they are gone.

Friday, November 13, 2015

People v. Hoffman: Checks Cannot Be Aggregated To Deny Prop 47 Re-Sentencing.

In People v. Hoffman, _Cal.App.4th__, Case No. B261945, decided on November 5, 2015, the defendant was convicted of seven separate felony counts for violating Penal Code section 473 [forged check] in May 2014. There were 18 checks and originally 18 counts, as well as a few additional counts. The amount of the checks ranged from $150 to $450, totaling $8734. The defendant signed a Harvey waiver (People v. Harvey (1979) 25 Cal.3d 754) that allowed the court to consider the dismissed counts at sentencing. Defendant had no prior convictions.

In June 2014, the trial court suspended imposition of sentence and placed Hoffman on formal felony probation with terms and conditions, including 180 days in county jail. The court denied Hoffman's request to reduce the felonies to misdemeanors but encouraged her to renew the request if she succeeds in her drug treatment program.

In July 2014, the trial court released Hoffman from serving her remaining jail term to enter a residential treatment program. Hoffman subsequently violated probation and tested positive for drugs several times.

In November 2014, the electorate passed Proposition 47. The Act reclassifies forgery as a misdemeanor if "the value of the check . . . does not exceed [$950]." (§ 473, subd. (b).) In December 2014, defendant filed a petition for resentencing under the Act. (§ 1170.18.) The trial court denied the request to reduce Hoffman's seven felony forgery counts to misdemeanors because the total amount of the checks exceeded $950. The court said, "The aggregate amount exceeds the $950. I think it takes her outside the spirit of the law that was passed by the voters."
Defendant appealed the court’s ruling.

The appellate court explained that Proposition 47 allows a person, such as Hoffman, who is currently serving a felony sentence for an offense that is now a misdemeanor (forgery), to petition for recall of sentence and resentencing in accordance with its provisions. (§§ 1170.18, subd. (a), 473, subd. (b).) If the petitioner satisfies the statutory criteria, the court "shall" resentence petitioner to a misdemeanor "unless the court, in its discretion, determines that resentencing the petitioner would pose an unreasonable risk of danger to public safety." (§ 1170.18, subd. (b).) There is no other discretionary provision. The Act "shall be liberally construed to effectuate its purposes." (Prop. 47, eff. Nov. 5, 2014, § 18; see Voter Information Guide, supra, text of proposed laws, p. 74.)

The statutory criteria for resentencing are that the "person [is] currently serving a sentence for a conviction, whether by trial or plea, of a felony or felonies who would have been guilty of a misdemeanor . . . had this act been in effect at the time of the offense . . . ." (§ 1170.18, subd. (a).) "Unreasonable risk of danger to public safety" is defined to mean an unreasonable risk that the petitioner will commit a new super-strike offense, such as murder, rape or child molestation. (Id., subd. (c), § 667, subd. (e)(2)(C)(iv).)

Hoffman satisfies the statutory criteria for resentencing. She is serving a sentence for conviction of felonies that would have been misdemeanors under the Act. Section 473, subdivision (b), as amended by the Act, provides, "[A]ny person who is guilty of forgery relating to a check, . . . where the value of the check . . . does not exceed nine hundred fifty dollars ($950), shall be punishable by imprisonment in a county jail for not more than one year," unless the person has a prior super-strike conviction, is required to register as a sex-offender, or has committed identity theft in connection with the forgery.

On appeal the prosecution argued that Hoffman's Harvey waiver allowed the trial court to rely on facts underlying the dismissed forgery and grand theft counts to find that Hoffman is "outside the spirit" of Proposition 47. The appellate court explained that the Harvey waiver allowed the trial court to rely on facts underlying the dismissed counts to make whatever sentencing determinations were authorized under section 1170.18. But only two determinations were authorized by section 1170.18: (1) whether Hoffman meets the statutory criteria, and (2) whether Hoffman's resentencing would pose an unreasonable risk of danger of a super-strike offense.

The trial court may not refuse to reduce a defendant's sentence based on the court's notion of the statute's "spirit." The "criteria" for resentencing are explicitly stated in section 1170.18, subdivision (a), and "unreasonable risk" is defined in subdivision (c). If the criteria are met, and the resentencing does not pose an unreasonable risk of a new super-strike offense, the "felony sentence shall be recalled and the petitioner resentenced to a misdemeanor." (Id., subd. (b).) Further, the appellate court explained that in construing a measure, we may not undertake to rewrite its unambiguous language. (People v. Goodliffe (2009) 177 Cal.App.4th 723, 726.)

The appellate court reversed the trial court’s order.

copyright © 2015 Christine Esser

The information contained here is for informational purposes only and is not legal advice or a substitute for legal counsel. Online readers should not act upon this information without seeking professional counsel. Information on this blog is not intended to create, and receipt of it does not constitute, an attorney-client relationship between you and Christine Esser. An attorney-client relationship is only established when a written retainer has been signed.

Disclosure: If you click on the link below, you will be directed to the Amazon website. If you make a purchase today, we will receive a small 4 percent commission from your purchase. This will not increase the amount you pay for the item. Check out the deals below before they are gone.

Sunday, November 1, 2015

People v. Page: Vehicle Code section 10851 Conviction Is Not Prop 47 Eligible

Defendant was convicted of violating Vehicle Code section 10851 [taking or driving a vehicle], along with other crimes. Subsequently, he filed a petition under Proposition 47 to have this conviction reduced to a misdemeanor but the trial court denied his petition. Defendant appealed the order in People v. Page (2015) __Cal.App.4th__, Case No. E062760.

On appeal defendant argued that Vehicle Code section 10851 is a lesser included offense to Penal Code section 487, subdivision (d)(1), grand theft, auto. (People v. Barrick (1982) 33 Cal.3d 115, 128.) Because the greater offense of Penal Code section 487 [grand theft auto] is eligible for a reduction, the lesser included offense of Vehicle Code section 487 should be found to be Proposition 47 eligible too. Proposition 47 makes Penal Code section 487 "or any other provision of law defining grand theft" a misdemeanor if the amount taken wasn't over $950. (Pen. Code, § 490.2(a).)

But the appellate court rejects this argument. Penal Code section 1170.18 does not identify Vehicle Code section 10851, the offense at issue in the present appeal, as one of the code sections amended or added by Proposition 47. (Pen. Code, § 1170.18.) The appellate court explains that it cannot say that defendant would have been guilty of a misdemeanor had Proposition 47 been in effect at the time of his offense because Vehicle Code section 10851 is a “wobbler” offense, punishable either as a felony or misdemeanor. (Veh. Code, § 10851, subd. (a); see People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 974, fn. 4 [listing Veh. Code § 10851, subd. (a) as a statute that provides for “alternative felony or misdemeanor punishment”].) Proposition 47 left intact the language in Vehicle Code
section 10851, subdivision (a).

In footnote 2, the appellate court also states that “[e]ven if we were to assume that Penal Code section 490.2 applied as defendant would have it—to reduce some Vehicle Code section 10851 convictions that would otherwise be felonies to misdemeanors, at least where the facts underlying the conviction involve theft (as opposed to merely joyriding) of a vehicle valued $950 or less—it does not appear that defendant would be entitled to relief. Defendant’s guilty plea shows only that he unlawfully took or drove a vehicle; nothing in the record establishes the value of the vehicle to be $950 or less.{CT 1, 5-7} The burden of proof lies with defendant to show the facts demonstrating his eligibility for relief, including that the value of the stolen vehicle did not exceed $950. (People v. Sherow (2015) 239 Cal.App.4th 875, 877.) Defendant did not attempt to meet that burden in his petition, providing no information at all regarding his eligibility for resentencing in his petition.{CT 35-36}”

The court also rejects defendant’s equal protection argument: “The California
Supreme Court has held that “neither the existence of two identical criminal statutes
prescribing different levels of punishments, nor the exercise of a prosecutor’s discretion
in charging under one such statute and not the other, violates equal protection principles.”
(People v. Wilkinson (2004) 33 Cal.4th 821, 838)

The order appellant appealed from was affirmed.

Check out the great deals at Amazon below. Disclosure: if you click the Amazon link, you will be directed to the Amazon website. Thank you.

These can be obtained from Amazon by clicking on the links provided. Thank you.

Tuesday, October 13, 2015

Wilkinson v. Gingrich (9th Cir. 2015): Double Jeopardy Prevents Perjury Charge After Acquittal

In Wilkinson v. Gingrich (9th Cir. 2015), Case No. 13-56952, decided on September 3, 2015,
the Ninth Circuit held that defendant’s acquittal in traffic court for a speeding ticket precluded the state court from charging him with perjury based upon his testimony at the traffic court trial.

The panel affirmed a district court’s ruling granting James Kendell Wilkinson’s habeas corpus petition. The petition challenged his conviction for perjury for testifying in a traffic court proceeding that he was not the driver of a car that had been stopped for speeding and whose driver had been ticketed. The State of California brought the perjury prosecution after Wilkinson was acquitted of the speeding offense. The panel agreed with the district court that the state appellate court unreasonably applied Ashe v. Swenson, 397 U.S. 436 (1970), when it held that Wilkinson’s acquittal in traffic court did not bar the subsequent perjury prosecution. The panel held that the traffic court necessarily decided, in Wilkinson’s favor, an issue that was critical to both the traffic court and the perjury case —that Wilkinson was not the driver of the speeding car—and that the State was therefore precluded by the Double Jeopardy Clause from bringing the perjury prosecution.

Under principles of collateral estoppel, an issue of fact that has been determined by a valid and final judgment may not be litigated between the same parties in the future. In Ashe, the Supreme Court found that collateral estoppel applied to the double jeopardy clause. The analysis has three steps: (1) identify the issues in the two actions to determine whether they are sufficiently similar and material to invoke the doctrine; (2) examine the record in the prior case to determine whether the similar issue was litigated and (3) examine the record in the prior case to determine whether the similar issue was necessarily decided. Applying AEDPA's standard of review (see 28 U.S.C. §2254(d)(1)), the Ninth Circuit concluded that the state court unreasonably applied Ashe. The issue in the traffic case (whether Wilkinson was the driver) and the issue in the perjury case (whether Wilkinson was telling the truth when he denied being the driver) were sufficiently similar and material for collateral estoppel and double jeopardy to apply. The traffic court judge in the first case necessarily decided that Wilkinson was not the driver and that he was telling the truth when he stated this.

Check out the great deals at Amazon below. Disclosure: if you click the Amazon link, you will be directed to the Amazon website. Thank you.

Wednesday, October 7, 2015

United States v. Fowlkes - Unlawful Search in Defendant’s Rectum

In United States v. Fowlkes (9th Cir. 2015) , Case No. 11-50273, defendant’s conviction for possessing and distributing cocaine was reversed in part on appeal where the court found that officers’ forcible removal of an unidentified substance from defendant’s rectum was an illegal search under the Fourth Amendment where the officers did not have medical training or a warrant.

On September 13, 2006, after witnessing what appeared to be a narcotics transaction between Fowlkes and an unidentified man, Long Beach Police Department (LBPD) officers requested that a marked car execute a pretextual traffic stop. Fawkes’ vehicle was pulled over for an expired registration and Fowlkes and his passenger were asked to exit the vehicle. Fowlkes denied consent to search the car. But officers claimed they saw marijuana in the open side panel of the car and a substance they believed was cocaine base on the front seats of the car. They arrested Fowlkes for felony drug possession and transported him to the Long Beach City Jail for processing.

At intake, Fowlkes was strip searched by officers in the jail's strip search room. Five officers observed the strip search, including Officer Jeffrey Harris and Sergeant Michael Gibbs, who brought along his taser, gloves and “assistance” in the form of additional officers because he thought Fowlkes might have drugs. There was conflicting evidence as to whether Fowlkes was trying to push an item further into his anus.

To prevent that, Gibbs “delivered a drive stun tase to the center portion of defendant's back.” Fowlkes' arms went straight into the air, and the officers handcuffed him. Fowlkes began to “squirm[ ]” and “struggl[e],” and the officers “lean[ed] him against the wall, · brace[d] his body up against the wall” so that “[h]e end[ed] up being bent over.” With Fowlkes in this position, the officers testified that they could see what appeared to be a plastic bag partially protruding from Fowlkes' rectum. Officers continued to “brac[e] [Fowlkes] up against the wall” to prevent him from resisting.

At this point, Fowlkes was handcuffed and incapacitated by five male officers. Fowlkes had no ability to destroy or further secrete what was in the plastic bag. Neither Sergeant Gibbs nor the other officers could tell what, if anything, the plastic bag contained while it remained in Fowlkes' rectum. Nor could they determine how large it was or how far it extended into Fowlkes' body. Despite this, and despite the fact that none of the officers had any relevant medical training, the officers did not attempt to obtain a warrant, summon medical personnel, move Fowlkes to a sanitary location, or allow Fowlkes to pass the suspected contraband naturally.

Instead, Sergeant Gibbs forcibly “retrieved” the bag. He put on the protective gloves he had brought along to the “search” and pulled the object from Fowlkes' rectum without the assistance of anesthesia, lubricant, or medical dilation. Sergeant Gibbs testified that he was able to remove the object using his thumb and index finger without penetrating Fowlkes' anal cavity. Officer Harris testified that the removal itself was a difficult, abrasive procedure: “I watched the entire process of him removing it in his fingers. [The object] went from a dime size to a penny size to a nickel size to a quarter size to somewhat near a golf ball size as it was taken out. Officer Harris further testified that he could “see blood and what looked to be feces” on the plastic bag after it had been removed. Photographs of the object that are included in the appellate record confirm that the object was covered in blood.

On appeal, Fowlkes argued that the district court erred by denying his motions to suppress the evidence extracted from his rectum at the jail because this evidence was retrieved in an unreasonable manner, in violation of his Fourth Amendment rights, among other issues.

Searches that require intrusion into a person's body implicate greater constitutional concerns. See Bouse v. Bussey, 573 F.2d 548, 550 (9th Cir.1977) (per curiam) (quoting Schmerber v.. California, 384 U.S. 757, 770 (1966) (“Search warrants are ordinarily required for searches of dwellings, and, absent an emergency, no less could be required where intrusions into the human body are concerned.”)). An intrusion into the human body implicates an individual's “most personal and deep-rooted expectations of privacy.” Winston v. Lee, 470 U.S. 753, 760 (1985). Therefore, while visual cavity searches that do not require physical entry into a prisoner's body are generally permissible without a warrant during the jail intake process, physical cavity searches generally are not. See Schmerber, 384 U.S. at 769–70 (“The interests in human dignity and privacy which the Fourth Amendment protects forbid any such intrusions on the mere chance that desired evidence might be obtained.”).

Here, the LBPD officers went beyond the visual cavity search found reasonable in Bull. They seized an unidentified object of unknown size from Fowlkes' rectum, subjecting him to a physically invasive, painful experience and thereby implicating his “most personal and deep-rooted expectations of privacy.” Lee, 470 U.S. at 760. At the same time, however, the officers, while acting without a warrant and engaging in physical contact, were not acting “on the mere chance that desired evidence might be obtained.” Schmerber, 384 U.S. at 770. They had reason to believe desired evidence was located inside of Fowlkes' body because Sergeant Gibbs could see a portion of an object which he thought Fowlkes was attempting to further secrete. Thus, they conducted a warrantless physical seizure of contraband they actually observed during the course of a permissible warrantless visual search.

The Ninth Circuit determined that the issue for it to decide was whether the officers' warrantless, physically invasive seizure of actual (not merely suspected) contraband, was unreasonable under the Fourth Amendment. The court held the officers’ conduct was unreasonable.

In reaching this conclusion, the court applied the same principle in analyzing the constitutionality of a seizure found in a nearly identical context involving extraction of evidence from a suspect's rectum in United States v. Cameron, 538 F.2d 254, 258 (9th Cir.1976) (“[A] clear indication that the suspect is concealing contraband does not authorize government officials to resort to any and all means at their disposal to retrieve it.”); see also United States v. Edwards, 666 F.3d 877, 884 (4th Cir.2011) (“The manner in which contraband is removed from a suspect during a sexually intrusive search, no less than the manner in which the contraband initially is discovered, must be considered in determining under the Bell analysis whether the search was reasonable.”). In determining whether an individual search or seizure is reasonable, we evaluate the “totality of [the] circumstances,” Missouri v. McNeely, 133 S.Ct. 1552, 1559 (2013), including “[1] the scope of the particular intrusion, [2] the manner of its conduct, and [3] the justification for initiating it.” Cameron, 538 F.2d at 258 (internal quotation marks omitted).

Here, the scope of the seizure intruded beyond the surface of Fowlkes' body, interfering with his bodily integrity. As the Supreme Court explained in Schmerber, “[t]he overriding function of the Fourth Amendment is to protect personal privacy and dignity against unwarranted intrusion by the State.” 384 U.S. at 767. The Court has subsequently described the interest in bodily integrity as implicating the “most personal and deep-rooted expectations of privacy.” Lee, 470 U.S. at 760 (holding a compelled surgical intrusion to remove a bullet, fired by a robbery victim, from the chest of the suspect unreasonable under the Fourth Amendment); see also Cameron, 538 F.2d at 258 (“[T]he fourth amendment imposes a stricter standard on the ‘means and procedures' of a body search than does the due process clause.”). And here, the seizure interfered with a particularly personal, private area of Fowlkes' anatomy.

The court found that LBPD officers conducted a warrantless forcible seizure of an unidentified item of unknown size from Fowlkes' rectum by non-medical personnel who (1) did nothing to assure that the removal was safe and performed under sanitary conditions; (2) were aided by the use of a taser but not by lubricant; (3) seized the object in the absence of exigent circumstances; and (4) acted in violation of LBPD policy. No single factor is dispositive, but under the totality of the circumstances presented here, we conclude that the manner of this seizure was unreasonable. See Cameron, 538 F.2d at 258–60. The district court therefore erred in admitting the unreasonably seized evidence at Fowlkes' trial.

Finally, numerous jurisdictions have concluded in similar circumstances that such warrantless conduct violates the Fourth Amendment. This persuasive authority reinforced the court’s conclusion that the seizure of evidence from Fowlkes' rectum, under the totality of the circumstances, violated his Fourth Amendment rights, and that the district court therefore should have suppressed the evidence.

Check out these deals on Amazon. Disclsoure: if you click on the Amazon link you will be directed to the Amazon website where you can make a purchase. We will receive a 3 percent commmission from your purchase but this will not increase the amount that you pay for your merchandice. Thank you.

Sunday, October 4, 2015

In re Erica R.: Search Condition for Juvenile’s Electronic Devices Goes Too Far

In re Erica R. (2015) _Cal.App.4th__, Case No. A143215, decided on September 28, 2015, involves a minor who pled guilty to misdemeanor possession of ecstasy after a school counselor found a baggie of pills in her purse. As a condition of probation, the juvenile court required defendant to submit to a search of her electronic devices, and to turn over her passwords to her probation officer. The juvenile appealed and argued that the search condition was unreasonable under People v. Lent (1975) 15 Cal.3d 481 (Lent).

Welfare and Institutions Code section 730, subdivision (b) empowers the juvenile court to "impose and require any and all reasonable conditions that it may determine fitting and proper to the end that justice may be done and the reformation and rehabilitation of the ward enhanced." In In re Victor L. (2010) 182 Cal.App.4th 902, we discussed the principles underlying the imposition of probation conditions on minors: " 'The state, when it asserts jurisdiction over a minor, stands in the shoes of the parents' [citation], thereby occupying a 'unique role . . . in caring for the minor's well-being.' [Citation.] . . . [¶] The permissible scope of discretion in formulating terms of juvenile probation is even greater than that allowed for adults. '[E]ven where there is an invasion of protected freedoms "the power of the state to control the conduct of children reaches beyond the scope of its authority over adults." ' [Citation.] This is because juveniles are deemed to be 'more in need of guidance and supervision than adults, and because a minor's constitutional rights are more circumscribed.' [Citation.] Thus, ' "a condition of probation that would be unconstitutional or otherwise improper for an adult probationer may be permissible for a minor under the supervision of the juvenile court." ' [Citations.]" (Id. at pp. 909-910.)

While the juvenile court's discretion is broad, it is not unlimited. Our Supreme Court in Lent stated the criteria for assessing the validity of a condition of probation as follows: "A condition of probation will not be held invalid unless it '(1) has no relationship to the crime of which the offender was convicted, (2) relates to conduct {Slip Opn. Page 5} which is not in itself criminal, and (3) requires or forbids conduct which is not reasonably related to future criminality[.]' " (Lent, supra, 15 Cal.3d at p. 486.) "Conversely, a condition of probation which requires or forbids conduct which is not itself criminal is valid if that conduct is reasonably related to the crime of which the defendant was convicted or to future criminality." (Ibid.) The Lent test is conjunctive -- all three prongs must be satisfied before we will invalidate a term of probation. (People v. Olguin (2008) 45 Cal.4th 375, 379.) Courts have "consistently held that juvenile probation conditions must be judged by the same three-part standard applied to adult probation conditions under Lent[.]" (In re D.G. (2010) 187 Cal.App.4th 47, 52 (D.G.); see also In re Josh W. (1997) 55 Cal.App.4th 1, 6.)

Here, the court found that the challenged electronic search condition has no relationship to the crime of misdemeanor possession of ecstasy. There is nothing in the original or amended juvenile petitions or the record that connects Erica's use of electronic devices or social media to her possession of any illegal substance. The Attorney General argues that Erica's cell phone and electronic devices "could have been used to negotiate the sales of the illegal substance." The problem with this argument is that there is no evidence suggesting that Erica--who was convicted of misdemeanor possession, not selling any illegal substance--ever used an electronic device in this way.

Obviously, the typical use of electronic devices and of social media is not itself criminal. "Modern cell phones are not just another technological convenience. With all they contain and all they may reveal, they hold for many Americans 'the privacies of life[.]' " (Riley v. California (2014) ___ U.S. ___ [134 S.Ct. 2473, 2494-2495].)

Finally, the record does not support a conclusion that the electronic search condition is reasonably related to future criminal activity by Erica. The juvenile court justified the electronic search condition solely by reference to its experience that "many juveniles, many minors, who are involved in drugs tend to post information about themselves and drug usage." However, "[n]ot every probation condition bearing a remote, attenuated, tangential, or diaphanous connection to future criminal conduct can be considered reasonable." (People v. Brandao (2012) 210 Cal.App.4th 568, 574.) There is nothing in this record regarding either the current offense or Erica's social history that connects her use of electronic devices or social media to illegal drugs. In fact, the record is wholly silent about Erica's usage of electronic devices or social media. Accordingly, "[b]ecause there is nothing in [Erica's] past or current offenses or [her] personal history that demonstrates a predisposition" to utilize electronic devices or social media in connection with criminal activity, "there is no reason to believe the current restriction will serve the rehabilitative function of precluding [Erica] from any future criminal acts." (D.G., supra, 187 Cal.App.4th at p.53.)

The appellate court rejected the Attorney General’s argument that Erica's electronic search condition is valid under People v. Ramos (2004) 34 Cal.4th 494 (Ramos). The defendant in Ramos was on probation for a prior DUI conviction when police conducted a search of his home and truck pursuant to a probation search condition. (Id. at pp. 504-505.) " '[J]uvenile probation is not, as with an adult, an act of leniency in lieu of statutory punishment; it is an ingredient of a final order for the minor's reformation and rehabilitation.' " (In re Tyrell J. (1994) 8 Cal.4th 68, 81, overruled on another ground in In re Jaime P. (2006) 40 Cal.4th 128.) A juvenile "cannot refuse probation [citations] and therefore is in no position to refuse a particular condition of probation." (In re Binh L. (1992) 5 Cal.App.4th 194, 202 (Binh).) Courts have recognized that a "minor cannot be made subject to an automatic search condition; instead, such condition must be tailored to fit the circumstances of the case and the minor." (See People v. Rios (2011) 193 Cal.App.4th 584, 597; see also Binh, supra, 5 Cal.App.4th at p. 203.)

For the reasons discussed above, Erica's electronic search condition is not properly tailored to her circumstances under Lent and is therefore invalid. The disposition is modified to strike the probation condition requiring Erica to submit "any electronic[s] with passwords under your control" to search. In all other respects the disposition is affirmed. {Slip Opn. Page 9}.

If you find these reviews useful to your law practice, we would appreciate your support by making a small purchase at Amazon today, which will not increase the cost of your goods, but will generate a small 3-4 percent commission that will help us to keep passing along helpful information to you. The book below is particularly helpful to most lawyers. Thank you.

Wednesday, September 23, 2015

Shelton v. Marshall: Murder Conviction Reversed After State Suppressed Brady Evidence

In Shelton v. Marshall (9th Cir. 2015) 796 F.3d 1075, a convicted defendant submitted a habeas petition to the Ninth Circuit claiming that his convictions for first-degree murder and second-degree murder of a young couple, among other crimes, should be reversed because the state failed to turn over Brady material. The Ninth Circuit agreed with one of his claims, and reversed that claim, but not the others.

Facts

Joseph Shelton is serving 40 years to life for the kidnapping and murder of Kevin Thorpe and Laura Craig in 1981, and appealed the denial of his petition for a writ of habeas corpus to the Ninth Circuit. Evidence presented at trial established that in 1981, Shelton and two others kidnapped and murdered a young couple who were on their way to college. Shelton was convicted of first degree murder of the young man, Thorpe, and second degree murder of the young woman, Craig, and other charges. One of the prosecution's key witnesses, Norman Thomas, was one of Shelton's accomplices.

Shelton later learned that Thomas' attorney believed that Thomas was not competent to assist in his own defense and was possibly insane, and he approached the prosecutor prior to Shelton's trial regarding a deal. The prosecutor knew that a psychiatric examination of Thomas would "supply ammunition to the defense" and agreed to drop murder charges against Thomas if he testified against Shelton and another accomplice, and he did not have a psychiatric examination. This deal was not disclosed to Shelton's attorney. Shelton sought state and federal relief on a Brady claim.

3 Elements of a Brady claim

There are three elements of a Brady claim: (1) the evidence is favorable to the defendant, either because it is exculpatory or impeaching; (2) the evidence was willfully or inadvertently suppressed by the State; and (3) prejudice ensued. The State court denied Shelton's petition, finding it hard to conclude that anything favorable to him was suppressed. But the Ninth Circuit disagreed, finding that "evidence that the prosecution believed Thomas to be incompetent was powerful fodder for impeaching his testimony against Shelton." Under clearly established Supreme Court precedent, Shelton satisfied the first element of Brady because the evidence was favorable. It was also not disclosed.

The Ninth Circuit found prejudice because Thomas’s testimony was central to the prosecution’s case to prove that Shelton premeditated and deliberated regarding Thorpe’s murder. Prejudice ensued because Thomas' testimony was the only direct evidence that Shelton premeditated and deliberated Thorpe's murder. "The prosecutor's own conduct in keeping the deal secret underscores the deal's importance." Thus, the court found that there is a reasonable probability that had the jury known of the prosecution’s serious doubts as to Thomas’s mental competence and of its successful efforts to prevent him from obtaining a competency test until after he testified, it would have reached a different result on that count.

But even had Thomas been impeached by evidence of the secret deal with the prosecution regarding his competency, there is not a reasonable probability that the jury would have reached a different result with respect to Sheldon’s convictions for the second-degree murder of Craig, kidnapping, and theft. Thus, the convictions were affirmed as to those counts.

Holding

Thus, the Ninth Circuit held that the prosecution’s suppression of a material part of its deal with a key witness, Norman Thomas, violated Brady v. Maryland, 373 U.S. 83 (1963), with respect to Shelton’s conviction for the first degree murder of Thorpe and ordered the writ granted as to that conviction.

The information contained here is for informational purposes only and is not legal advice or a substitute for legal counsel. Online readers should not act upon this information without seeking professional counsel. Information on this blog is not intended to create, and receipt of it does not constitute, an attorney-client relationship between you and Christine Esser. An attorney-client relationship is only established when a written retainer has been signed.

Disclosure: We have not received anything from the author or publisher, or manufacturer for recommending these items. But if you click the link, you will be directed to Amazon and if you make a purchase, we may receive a small commission that will not increase your cost. Thank you. Comments are welcome.

Friday, September 18, 2015

People v. Reese: Denial of Full and Complete Transcript for Indigent Defendant Found NOT to Be Denial of Equal Protection

In People v. Reese (2015) __Cal.App.4th__, decided on September 17, 2015, Case No. B253610, the defendant asked for a full and complete transcript of the trial proceedings that resulted in a mistrial to prepare for a second trial in pro per, but opening statement and closing argument were not included in the transcripts the defendant received. Inexplicably, a majority of this panel of the Court of Appeal find that an indigent defendant’s denial of opening and closing statements, thus, a lack of a full and complete transcript, did not deny the appellant equal protection under the law. But there is a well-reasoned dissent; thus, this case will likely go up on review.

At trial, after a mistrial, an in pro per defendant asked the trial court judge to order that a full and complete reporter’s transcript of the first trial be prepared. The trial court ordered the reporter to prepare all trial testimony but did not include jury voir dire, opening statement or closing arguments in the transcripts. The defendant again asked for transcripts of opening and closing arguments, stating that he needed these transcripts “so [he] [would not] make the same mistakes.” The court denied the request, stating: “When you represent yourself, the court cannot give you any favors. You will be treated like a lawyer will be. That’s why people shouldn’t represent themselves. The motion to request the opening statement and closing arguments is denied. That was denied previously. That is not evidence.”

In People v. Hosner (1975) 15 Cal.3d 60 (Hosner), the Supreme Court answered “what showing of particularized need, if any, must an indigent defendant make in order to become entitled to a free transcript of prior proceedings.” (Hosner, supra, 15 Cal.3d at p. 66.) It held “an indigent defendant in a criminal trial is presumed to have a particularized need for a transcript of prior proceedings, just as he is presumed, if he needs a transcript at all, to need nothing less than a complete transcript.” (Ibid.) The court must grant the defendant’s motion unless the prosecution rebuts the presumption of defendant’s “need for the transcript and of the unavailability of adequate alternative devices.” (Ibid.) To the extent there is a dispute about whether a full
transcript is necessary, the prosecution also has the burden of showing that the defendant
would have an effective defense with anything less than a complete transcript. (Id. at
p. 64.) Under Hosner, error in failing to provide a complete transcript requires automatic
reversal. (Hosner, supra, 15 Cal.3d at p. 70.)

A majority of the panel explains, “we do not believe the Hosner per se rule of reversal was intended to apply in this case, where defendant received a transcript of all the testimony, and explained his request for the opening statements and closing arguments only by saying he needed them “to not make the same mistakes.” Defendant was not required to specify how the
transcript of testimony might aid his defense, because Hosner and the four decades of
high court precedent establish without question his equal protection right to a transcript
of the testimony. But the defendant who requests other parts of the transcript without
specifying why it is necessary to an effective defense may not invoke the Hosner rule of
automatic reversal.

Justice Flier in a dissenting opinion explains, “denying appellant a transcript of opening
statements and closing arguments from the mistrial was error under People v. Hosner
(1975) 15 Cal.3d 60, 62 (Hosner), and Hosner requires automatic reversal. “Providing equal justice for poor and rich, weak and powerful alike is an age-old problem. People have never ceased to hope and strive to move closer to that goal. [O]ur own constitutional guaranties of due process and equal protection both call for procedures in criminal trials which allow no invidious discriminations between persons and different groups of persons. Both equal protection and due process emphasize the central aim of our entire judicial system—all people charged with crime must, so far as the law is concerned, ‘stand on an equality before the bar of justice in every American court.’” (Griffin v. Illinois (1956) 351 U.S. 12, 16-17, fn. omitted.) “There can be no equal justice where the kind of trial a man gets depends on the amount of money he has.” (Id. at p. 19.) Thus, the state should provide indigent prisoners with the basic tools of an adequate defense when those same tools are available for a price to other prisoners. (Britt v. North Carolina (1971) 404 U.S. 226, 227 (Britt).)

It is this bedrock right to equal protection of the law that underlies our Supreme
Court’s decision in Hosner. Hosner held that, as a matter of equal protection, an indigent
defendant is presumptively entitled to a free “complete transcript” of a mistrial in
preparing for retrial (Hosner, supra, 15 Cal.3d at pp. 62, 66; Shuford v. Superior Court
(1974) 11 Cal.3d 903, 906 (Shuford).) Hosner soundly rejected the notion that a
defendant should have to show a particularized need for the complete transcript of a
mistrial: “[A]n indigent defendant in a criminal trial is presumed to have a particularized
need for a transcript of prior proceedings, just as he is presumed, if he needs a transcript
at all, to need nothing less than a complete transcript.” (Hosner, supra, 15 Cal.3d at 2
p. 66.) The prosecution bears the burden of showing the defendant would have an
effective defense with something less than a complete transcript. (Id. at p. 64.)

The reason why I believe that the dissent is better reasoned than the majority opinion is that in pro per defendants are presumed to not be articulate advocates for themselves and the burden the majority is placing on an indigent defendant to fully articulate a need for non-evidentiary transcripts when an in pro per defendant likely does not yet fully understand how these will be of value in preparing for trial, and thus, cannot fully articulate why they are needed is unfair.

copyright © 2015 Christine Esser

The information contained here is for informational purposes only and is not legal advice or a substitute for legal counsel. Online readers should not act upon this information without seeking professional counsel. Information on this blog is not intended to create, and receipt of it does not constitute, an attorney-client relationship between you and Christine Esser. An attorney-client relationship is only established when a written retainer has been signed.

People v. Vasquez: Addresses When a Dwelling is Inhabited Under California Burglary Statute

In People v. Vasquez (2015), __Cal.App.4th_, decided on September 17, 2015, Case No. B255131, appellant argued there was insufficient evidence to support a jury’s finding that he had committed a first degree burglary because there was insufficient evidence to support an essential element of first degree burglary - the residence was an inhabited dwelling at the time of the burglary.

But the appellate court rejected this argument, finding that these facts were sufficient to establish that the house was an inhabited dwelling for purposes of first degree burglary in California: ”The new owner of a house prepares to move in. She transfers utilities to her name, installs locks, leaves personal items in the house, paints an interior wall of the garage, and comes and goes during daytime hours narrowly missing defendant's two intrusions.”

Section 460, subdivision (a) provides: "Every burglary of an inhabited dwelling house . . . is burglary of the first degree." Section 459 provides: "'[Inhabited' means currently being used for dwelling purposes, whether occupied or not." The use of a house as sleeping quarters is not determinative; it is but one circumstance in deciding whether a house is inhabited. (People v. Hughes (2002) 27 Cal.4th 287, 354; id. at p. 355 [the "inhabited-uninhabited dichotomy" turns on the character of the use of a building, not the presence or absence of a person].)

The appellate court further explained that Banks testified that she inhabits the property. She introduced herself to a neighbor, transferred the utilities to her personal accounts, notified creditors of her new address, and began painting and renovating the home. She added window locks and left tools and personal belongings, including several chairs and snacks, inside the home. Aside from her temporarily sleeping at a girlfriend's apartment, Banks was
generally in or around the premises of her new home. (People v. Hansen (1994) 9
Cal.4th 300, 310, overruled on other grounds by People v. Chun (2009) 45 Cal.4th 1172,
1199 [an inhabited dwelling is one in which persons reside and where occupants are
generally in or around the premises]; People v. Hernandez (1992) 9 Cal.App.4th 438,
440-442 [first degree burglary conviction upheld where victims had just moved into the
apartment and had not yet unpacked belongings or slept in apartment].) This increased
the danger of personal injury and the risk of "'a violent confrontation during a burglary.'"
(People v. Hughes, supra, 27 Cal.4th 287, 355.)

The reason why this was such an important argument, even though it lost is because first degree burglary is a strike under California's Three Strike Law, whereas, second degree burglary is not a strike and carries lesser penalties. Had the appellant prevailed, his conviction would have been reduced to a second degree burglary. This would have lessened the prison time appellant would have to serve as well.

copyright © 2015 Christine Esser

The information contained here is for informational purposes only and is not legal advice or a substitute for legal counsel. Online readers should not act upon this information without seeking professional counsel. Information on this blog is not intended to create, and receipt of it does not constitute, an attorney-client relationship between you and Christine Esser. An attorney-client relationship is only established when a written retainer has been signed.

Thursday, September 17, 2015

Hiding Behind the Police Station Is a Bad Idea

Sometimes there just isn't a good place to hide nearby. Three men found that out when they ran to the back of a police station after they are believed to have burglarized a nearby retail store in Athens, Georgia.

Needless to say, when the k-9 officers at the police station began barking at 3 a.m. because they observed the suspects nearby, this alerted the human officers to investigate. They quickly caught one of the masked bandits. After the first suspect was caught, two other suspects were soon caught nearby, according to an AP news report of this incident.

Second-Degree Burglary in California

In California, taking items from a commercial retail store when the store is not open is usually considered a second degree burglary under Penal Code section 459. Second degree burglary can be charged as either a felony or a misdemeanor by the prosecutor; thus, it is considered a wobbler. If it is charged as a misdemeanor, the penalty can be up to one year in county jail. But if it is charged as a felony, the penalty can be 16 months, 2 years or 3 years in state prison. Additionally, the court can add up to a $1,000 fine for a misdemeanor offense and up to $10,000 for a felony offense. If the burglary also involves a theft of over $400.00, the state will charge the burglary as a felony. Because commercial burglary is not a strike, a person convicted of this offense will be allowed to serve just 50 percent of any prison sentence.

Copyright © 2015 Christine Esser

The information contained here is for informational purposes only and is not legal advice or a substitute for legal counsel. Online readers should not act upon this information without seeking professional counsel. Information on this blog is not intended to create, and receipt of it does not constitute, an attorney-client relationship between you and Christine Esser. An attorney- client relationship is only established with a retainer.

Tuesday, September 15, 2015

Consequences and Penalty of First Degree Burglary: Penal Code Section 459

Sometimes a person is crying out to get caught and pay the penalty for committing a crime. That appears to be the case with an Idaho man who allegedly left his car keys inside a burglarized home and then returned for them while police were there taking the report.

A woman called police when she found her home ransacked on Saturday, and found a stranger's cellphone on her bed and a strange car parked behind the property, according to the AP from Twin Falls, Idaho and The Times-News reports (http://bit.ly/1W0jIri)

Police were at the scene when a young man was dropped off near the vehicle. Officers report that the man told them he loaned the car to a friend and the keys got locked inside. Keys found inside the burglarized house unlocked and started the vehicle.

Allegedly, reports filed in this case also state that the man acknowledged during an interview with police to being involved in at least two other burglaries that same day.

Burglary: Penal Code section 459

In California, burglary of a home is considered a first degree burglary and is found in Penal Code section 459. First degree burglary is defined as ‘burglary of an inhabited dwelling
house, . . . which is inhabited and designed for habitation, . . . or the inhabited portion of
any other building. . . .’ (§ 460, subd. (a).)

CALCRIM No. 1700 states that to prove this crime, the state must prove the following:
1. The defendant entered (a/an) (building/room within a building/locked vehicle/ <insert other statutory target>); and
2. When (he/she) entered (a/an) (building/room within the building/locked vehicle/ <insert other statutory target>), (he/she) intended to commit (theft/ [or] <insert one or more felonies>).

Section 459 defines ‘inhabited’ as ‘currently being used for dwelling purposes, whether occupied or not.’ ‘“[I]nhabited dwelling house” means a structure where people ordinarily live and which is currently being used for dwelling purposes. [Citation.]’ [Citation.]” (People v. Rodriguez (2004) 122 Cal.App.4th 121, 131-132.)

Penalty for First Degree Burglary

The penalty for First Degree burglary in California is found in Penal Code section 461, subdivision (a), which states, “Burglary in the first degree [has a penalty of] imprisonment in the state prison for two, four, or six years.’ (Pen. Code, § 461, subd. (a).)

Burglary of a home is a serious offense and is considered a strike under California’s Three Strikes Law. When a person has been convicted of a serious felony, an additional five year prison term must be imposed for any prior conviction that qualifies as a serious felony. (§ 667, subd. (a)(1).) This means if you have a conviction for first degree burglary on your criminal record and you are convicted of another felony offense, this additional penalty can be added to the sentence if convicted.

Although this man is alleged to have made a confession to this burglary, along with two other burglaries, the law requires that a person be given a Miranda warning when suspected of a crime that informs the person of the following:

(1) You have a right to remain silent.
(2) Anything you say can and will be used against you in a court of law;
(3) You have the right to talk to a lawyer and have your lawyer present when you are being questioned;
(4) If you can’t afford to hire a lawyer, one will be appointed to represent you before any questioning if you wish;
(5) You can decide at any time to exercise these rights and not answer any questions or make any statements.

Thus, a suspect has a Fifth Amendment right to not confess to crimes and exercise a constitutional right to silence in any case. This is highly suggested if a person is ever accused of a crime.

Copyright © 2015 Christine Esser

The information contained here is for informational purposes only and is not legal advice or a substitute for legal counsel. Online readers should not act upon this information without seeking professional counsel. Information on this blog is not intended to create, and receipt of it does not constitute, an attorney-client relationship between you and Christine Esser. An attorney- client relationship is only established with a retainer.

Monday, September 14, 2015

People v. Perez: Prop 47 Does Not Require Failure to Appear Conviction on Underlying Case to be Reduced to a Misdemeanor

In People v. Perez (2015) __Cal.App.__, Case No. C078169, decided on July 31, 2015, the appellant was convicted of a drug offense that was reduced to a misdemeanor under Proposition 47, but before this occurred, the appellant failed to appear (FTA) on the case while it was still a felony. Appellant requested the trial court to reduce the FTA to a misdemeanor since the underlying charge was reduced, reasoning that if the drug charge is reduced to a misdemeanor "for all purposes" (Pen. Code, § 1170.18, subd. (k)), the FTA for failing to appear on that offense should also be reduced as well. But the trial court rejected this request.

The appellate court affirmed the trial court’s ruling, explaining that when a defendant fails to appear on a felony charge, a charged FTA is a felony but if the underlying charge is a misdemeanor, so is the FTA. The provisions of Proposition 47 do not address pendent or ancillary offenses, only the offenses listed in the statute. The criminal conduct proscribed by section 1320, subdivision (b), the FTA statute, is complete when a defendant willfully fails to appear in order to evade the process of the court. "The severity of an FTA is not lessened by the outcome of the underlying charge because section 1320 applies to persons charged with or convicted of crimes." Because the eventual disposition of a case does not alter the severity of the defendant's act at the time he willfully evaded the process of the court, the the reduction of the underlying drug charge to a misdemeanor does not affect defendant's felony FTA conviction.

copyright © 2015 Christine Esser

The information contained here is for informational purposes only and is not legal advice or a substitute for legal counsel. Online readers should not act upon this information without seeking professional counsel. Information on this blog is not intended to create, and receipt of it does not constitute, an attorney-client relationship between you and Christine Esser. An attorney- client relationship is only established when a written retainer has been signed.

People v. Delapena: Prop 47 Is Not Retroactive, Petition Must Be Filed When Case Is Closed

In People v. Delapena (2015) _Cal.App.4th_, Case No. H041363, decided on July 30, 2015, the appellate court held that an appellate court is not required to reduce an appellant’s felony drug possession offense to a misdemeanor under Proposition 47 because Prop 47 is not retroactive.

Although the statutes amended by Proposition 47 include Health and Safety Code section 11377, subdivision (a), which is the statute appellant was convicted of violating, and this statute is now punishable as a misdemeanor if the defendant has no disqualifying priors, Penal Code section 1170.18 provides the procedure whereby qualified defendants may seek resentencing pursuant to Proposition 47. In re Estrada (1965) 63 Cal.2d 740, held that when the Legislature (or electorate) amends a statute to reduce the punishment for an offense, courts will assume the Legislature intended the reduction to apply to all cases not yet final, absent evidence to the contrary. But appellant’s case was already final when Prop. 47 passed.

Furthermore, the appellate court rejected appellant’s claim for equal protection.

In order to benefit from Prop 47 when a case is closed and is on appeal, the defendant must file a petition under Proposition 47 to allow the trial court to conduct a review of the defendant's criminal history and perform a risk assessment so that anyone who presents a risk to public safety or who is otherwise disqualified will not benefit from the law. Here, the appellant may file a petition in the trial court for reduction of his offense.

copyright © 2015 Christine Esser

The information contained here is for informational purposes only and is not legal advice or a substitute for legal counsel. Online readers should not act upon this information without seeking professional counsel. Information on this blog is not intended to create, and receipt of it does not constitute, an attorney-client relationship between you and Christine Esser. An attorney- client relationship is only established when a written retainer has been signed.