In People v. Sherow (2015) 239 Cal.App.4th 875, the Court of Appeal answered the question of who has the burden of proof when a defendant brings a Petition under Proposition 47 and asserts that he is entitled to re-sentencing for a theft crime.
On July 31, 2007, Officer Cisneros with the Riverside County Police Department's burglary and auto theft unit conducted undercover surveillance on Sherow because he was suspected of large scale DVD thefts. Officer Cisneros observed Sherow enter a Ross department store, go the men's apparel section, select several pieces of clothing off the rack, "roll it up in a really tight roll," place it in his waistband, and leave the store without paying. Officer Cisneros then watched appellant go to his vehicle, place the stolen goods in the back seat, and drive off. Thereafter, Officer Cisneros followed appellant to an AJ Wright store. Officer Cisneros witnessed appellant steal more men's clothing in the same manner as he did at Ross. After appellant left AJ Wright without paying for the merchandise he tucked into his waistband, Officer Cisneros followed him to Walmart. While appellant was inside Walmart, Officer Cisneros looked inside appellant's car and saw the items appellant had taken from Ross and AJ Wright in plain view on the back seat.
On Appeal, Sherow contended that his blanket request to reduce his convictions to misdemeanors, without any discussion or elaboration placed the burden on the prosecution to first, discern he was only potentially eligible for Proposition 47 relief on counts 1 and 2. He further contends the prosecution had the burden to prove Sherow was not eligible for resentencing. But the state argued that the initial burden was on Sherow to prove his eligibility for resentencing in this case by showing the value of the stolen property in each of counts 1 and 2 was under $950.
Proposition 47, which is codified in section 1170.18, reduced the penalties for a number of offenses. Among those crimes reduced are certain second degree burglaries where the defendant enters a commercial establishment with the intent to steal. Such offense is now characterized as shoplifting as defined in new section 459.5. Shoplifting is now a misdemeanor unless the prosecution proves the value of the items stolen exceeds $950. (People v. Rivera (2015) 233 Cal.App.4th 1085, 1091; People v. Contreras (2015) 237 Cal.App.4th 868, 889-891.)
Section 1170.18 creates a process where persons previously convicted of crimes as felonies, which would be misdemeanors under the new definitions in Proposition 47, may petition for resentencing. Section 1170.18, subdivision (b) provides in part: "Upon receiving a petition under subdivision (a), the court shall determine whether the petitioner satisfies the criteria for subdivision (a)." Under subdivision (b) a person who satisfies the criteria in subdivision (a) of section 1170.18, shall have his or her sentence recalled and be sentenced to a misdemeanor (subject to certain exclusions not relevant here).
In this case, Sherow brought a Petition under Proposition 47 and claimed that the thefts in counts 1 and 2, respectively, were of a value of less than $950, and he was entitled to re-sentencing, absent any statutory exclusions. But the court determined that defendant had the burden of proof.
The appellate court explains that a proper petition could certainly contain at least Sherow's testimony about the nature of the items taken. If he made the initial showing the court can take such action as appropriate to grant the petition or permit further factual determination. (People v. Bradford (2014) 227 Cal.App.4th 1332, 1341.) Because Sherow did not support his claim with any evidence, the court finds that he has not brought forth sufficient facts to establish that he was eligible for relief.
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.
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Friday, August 28, 2015
Thursday, August 27, 2015
People v. Prunty: When does membership in a gang’s subset violate the STEP Act?
In People v. Prunty (2015) 214 Cal.App. 4th 1110, the California Supreme Court was asked to decide what type of showing the prosecution must make when its theory of why a criminal street gang exists turns on the conduct of one or more gang subsets.
To show that Prunty’s crime qualified for a sentence enhancement under the STEP Act, the prosecution’s gang expert testified about the Sacramento-area Norteño gangs general existence and origins, its use of shared signs, symbols, colors, and names, its primary activities, and the predicate activities of two local neighborhood subsets. The expert did not, however, offer any specific testimony contending that these subsets’ activities connected them to one another or to the Sacramento Norteño gang in general.
The Supre.e Court held that where the prosecution's case positing the existence of a single "criminal street gang" for purposes of section 186.22(f) turns on the existence and conduct of one or more gang subsets, then the prosecution must show some associational or organizational connection uniting those subsets. That connection may take the form of evidence of collaboration or organization, or the sharing of material information among the subsets of a larger group. Alternatively, it may be shown that the subsets are part of the same loosely hierarchical organization, even if the subsets themselves do not communicate or work together. And in other cases, the prosecution may show that various subset members exhibit behavior showing their self-identification with a larger group, thereby allowing those subsets to be treated as a single organization.
In this case, because the prosecution did not introduce sufficient evidence showing a connection among the subsets it alleged comprised a criminal street gang, Prunty was not eligible for a sentence enhancement under the STEP Act. The Supreme Court reversed the Court of Appeal's contrary judgment.
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.
copyright © 2015 Christine Esser
Facts
The state’s theory at trial was that defendant Zackery Prunty committed an assault to benefit the Sacramento-area Norteño street gang. The evidence showed that Prunty identified as a Norteño; he claimed membership in a particular Norteño subset, the Detroit Boulevard Norteños, and that Prunty uttered gang slurs and invoked “Norte” when shooting a perceived rival gang member at a Sacramento shopping center.To show that Prunty’s crime qualified for a sentence enhancement under the STEP Act, the prosecution’s gang expert testified about the Sacramento-area Norteño gangs general existence and origins, its use of shared signs, symbols, colors, and names, its primary activities, and the predicate activities of two local neighborhood subsets. The expert did not, however, offer any specific testimony contending that these subsets’ activities connected them to one another or to the Sacramento Norteño gang in general.
The STEP Act
The STEP Act defines a “criminal street gang” as an “ongoing organization, association, or group.” (§ 186.22(f).) That “group” must have “three or more persons,” and its “primary activities” must consist of certain crimes. (Ibid.) The same “group” must also have “a common name or common identifying sign or symbol,” and its members must be proven to have engaged in a “pattern of criminal activity” by committing predicate offenses. (Ibid.)The appeal
On appeal, Prunty claimed that the prosecution failed to introduce sufficient evidence to prove that he committed the offenses for the benefit of a criminal street gang, as that term is defined in section 186.22(f). Prunty challenged the prosecution's theory that the relevant "ongoing organization, association, or group" (§ 186.22(f)) in this case was the "criminal street gang known as the Norteños" in general. Prunty emphasized the prosecution's use of crimes committed by various Norteño subsets to prove the existence of a single Norteño organization. He argued that this improperly conflated multiple separate street gangs into a single Norteño gang without evidence of "collaborative activities or collective organizational structure" to warrant treating those subsets as a single entity. According to Prunty, the prosecution's theory did not satisfy the STEP Act's "criminal street gang" definition.
Prunty relied on People v. Williams (2008) 167 Cal.App. 4th 983 (Williams), which addressed the identification of the relevant group under the STEP Act. (Williams, at p. 987.) In that case, the court held that where a gang contains various subsets, the gang cannot be used as the relevant group — and evidence of various subsets' activities cannot be used to prove the gang's existence — absent proof of "some sort of collaborative activities or collective organizational structure." (Id. at p. 988.) The court in Williams also held that more than "a shared ideology or philosophy, or a name that contains the same word, must be shown before multiple units can be treated as a whole when determining whether a group constitutes a criminal street gang." (Ibid.)
The Court of Appeal rejected the reasoning in Williams, which it held improperly "add[ed] an element to the [STEP Act] that the Legislature did not put there." Instead, the Court of Appeal reasoned, evidence of "a common name (Norteño) and common identifying signs and symbols (the color red, the letter N, the number 14)" coupled with the existence of "a common enemy (the Sureños)" is sufficient to show that a criminal street gang exists. The Court of Appeal relied on other decisions that did not explicitly require proof of a collaborative connection to demonstrate that "the Norteños" are a "criminal street gang within the meaning of section 186.22." Based on this interpretation of the STEP Act's requirements for showing a criminal street gang to exist, the Court of Appeal sustained Prunty's sentence enhancement under section 186.22.
Review by the Supreme Court
The Supreme Court granted Prunty's petition for review to address the type of evidence required to support the prosecution's theory that various alleged gang subsets constitute a single "criminal street gang" under section 186.22(f)
Holding
Whatever theory the prosecution chooses to demonstrate that a relationship exists, the evidence must show that it is the same "group" that meets the definition of section 186.22(f) — i.e., that the group committed the predicate offenses and engaged in criminal primary activities — and that the defendant sought to benefit under section 186.22(b). But it is not enough, as the Court of Appeal in this case held, that the group simply shares a common name, common identifying symbols, and a common enemy. Nor is it permissible for the prosecution to introduce evidence of different subsets' conduct to satisfy the primary activities and predicate offense requirements without demonstrating that those subsets are somehow connected to each other or another larger group.
The California Supreme Court concluded that the prosecution failed to satisfy the STEP Act’s “criminal street gang” definition. The court explained that the STEP Act requires the prosecution to introduce evidence showing an associational or organizational connection that unites members of a putative criminal street gang. The prosecution has significant discretion in how it proves this associational or organizational connection to exist. Yet when the prosecution seeks to prove the street gang enhancement by showing a defendant committed a felony to benefit a given gang, but establishes the commission of the required predicate offenses with evidence of crimes committed by members of the gang’s alleged subsets, it must prove a connection between the gang and the subsets.In this case, because the prosecution did not introduce sufficient evidence showing a connection among the subsets it alleged comprised a criminal street gang, Prunty was not eligible for a sentence enhancement under the STEP Act. The Supreme Court reversed the Court of Appeal's contrary judgment.
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.
copyright © 2015 Christine Esser
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Sunday, August 23, 2015
MIP (“Minor in Possession” alcohol): Business and Profession Code 25662
College parties are in full swing again. There will be plenty of beer, wine and even hard liquor available. But if you are under 21 years old, and you decide to drink (even though you are not of legal age in California), you would be wise to exercise some caution in selecting which gatherings to attend and limiting where you can be observed holding your alcoholic beverage if you do not want to be charged with being a minor in possession ("MIP"), a misdemeanor crime in California.
Any young person who is caught by a police officer holding an alcoholic beverage while in a public place and while under 21 years old, can receive a ticket for being a MIP (Minor in Possession) in violation of Business and Professions Code section 25662. The jury instruction for Business and Profession Code section 25662, CALCRIM NO. 2960, requires the state to prove that:
Potential Defenses to Violating the MIP statute
A third defense is found within the statute, which states, “This section does not apply to possession by a person under 21 years of age making a delivery of an alcoholic beverage in pursuance of the order of his or her parent, responsible adult relative, or any other adult designated by the parent or legal guardian, or in pursuance of his or her employment. That person shall have a complete defense if he or she was following, in a timely manner, the reasonable instructions of his or her parent, legal guardian, responsible adult relative or any adult.”
Any young person who is caught by a police officer holding an alcoholic beverage while in a public place and while under 21 years old, can receive a ticket for being a MIP (Minor in Possession) in violation of Business and Professions Code section 25662. The jury instruction for Business and Profession Code section 25662, CALCRIM NO. 2960, requires the state to prove that:
1. The defendant [unlawfully] possessed an alcoholic beverage (in/on) a (street[,]/ [or] highway[,]/ [or] public place[,]/ [or] a place open to the public);
AND
2. At the time, the defendant was under 21 years old.
An alcoholic beverage is a liquid or solid material intended to be consumed that contains one-half of 1 percent or more of alcohol by volume.
Under the law, a person becomes one year older as soon as the first minute of his or her birthday has begun.Potential Defenses to Violating the MIP statute
The first obvious defense is that the young person was not on a street, highway, public place, or any place open to the public. Subdivision (b) suggests that a gathering may be deemed open to the public if 10 or more persons are present.
Second, if the young person was even a minute into the 21st year, that person did not violate the statute. A third defense is found within the statute, which states, “This section does not apply to possession by a person under 21 years of age making a delivery of an alcoholic beverage in pursuance of the order of his or her parent, responsible adult relative, or any other adult designated by the parent or legal guardian, or in pursuance of his or her employment. That person shall have a complete defense if he or she was following, in a timely manner, the reasonable instructions of his or her parent, legal guardian, responsible adult relative or any adult.”
Penalties for Violating Section 25662
This offense is a misdemeanor. A first violation is punished by a fine of two hundred fifty dollars ($250) or the person shall be required to perform not less than 24 hours or more than 32 hours of community service during hours when the person is not employed or is not attending school.
A second or subsequent violation is punishable as a misdemeanor and the person shall be fined not more than five hundred dollars ($500), or required to perform not less than 36 hours or more than 48 hours of community service during hours when the person is not employed or is not attending school, or a combination of fine and community service as the court deems just.
It is the intent of the Legislature that the community service requirements prescribed in this section require service at an alcohol or drug treatment program or facility or at a county coroner's office, if available, in the area where the violation occurred or where the person resides.
The most painful penalty for most young people will be the one-year suspension of driving privileges that can occur with a conviction for this charge under Vehicle Code Section 13202.5.
Subdivision (c) provides that the penalties imposed under Section 25662 do not preclude the state from charging any additional offenses, such as under Vehicle Code Section 13202.5. Section 13202.5, subdivision (a), provides that for each conviction of a person for an offense specified in subdivision (d), which includes Business and Professions Code section 25662, that is committed while the person was under the age of 21 years, but 13 years of age or older, the court shall suspend the person's driving privilege for one year. If the person convicted does not yet have the privilege to drive, the court shall order the department to delay issuing the privilege to drive for one year subsequent to the time the person becomes legally eligible to drive. However, if there is no further conviction for an offense specified in subdivision (d) in a 12-month period after the conviction, the court, upon petition of the person affected, may modify the order imposing the delay of the privilege. For each successive offense, the court shall suspend the person's driving privilege for those possessing a license or delay the eligibility for those not in possession of a license at the time of their conviction for one additional year.“
Reduce PC 25662 to an infraction
Also, Penal Code section 17, subdivision (d), allows the court to reduce some misdemeanors, such as a violation of Section 25662, to an infraction. Thus, either you, if you are representing yourself, or your attorney, should make a motion to reduce this misdemeanor to an infraction if you are reading this too late and have already been ticketed with this charge.
I hope this information helps young people under 21 years of age to exercise caution while attending back-to-school parties. Parties should be fun and not result in painful consequences. Best wishes for an amazing college experience.
copyright © 2016 Christine Esser
Disclaimer
Disclaimer
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
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Tuesday, August 18, 2015
If Forfeiture by Wrongdoing Applies, Testimony of Absent Witness Can Be Used at Trial.
Carlson v. Attorney General of the State of California
In Carlson v. Attorney General of the State of California, (9th Cir, 2015), Case No. 13-16535,
decided on June 26, 2015, the Ninth Circuit found these facts. On a Sunday afternoon, Joshua Barragan ("Joshua") called the Moraga Police Department to report that his stepfather, Leif Carlson, Sr. ("Carlson") had hit seven-year-old Leif Carlson, Jr. ("Leif Jr.") in the face. When Officer Ronald Ward arrived on the scene, he observed redness and bruising on Leif Jr.'s left cheek. The state charged Carlson—Leif Jr.'s father—with willful infliction of harm or injury to a child, Cal. Penal Code, § 273a(b).When the case went to trial. Carlson's wife, Lena Carlson ("Lena"), and Leif Jr. were subpoenaed to testify but never appeared in court. Invoking the Supreme Court's forfeiture-by-wrongdoing doctrine, the trial court determined that Carlson was complicit in their absence and that he had surrendered his Sixth Amendment right to confront them. The Ninth Circuit observed that this circumstantial evidence could have been used by the trial court to support its finding:
(1) Lena was distraught and may have had mental health issues. That evidence could support an inference that she would require emotional care and practical help.
Forfeiture by Wrongdoing
The Confrontation Clause of the Sixth Amendment ordinarily bars "admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination." Crawford v. Washington, 541 U.S. 36, 53–54 (2004). Statements made in response to the questioning of a law enforcement officer are testimonial if the circumstances establish that "the primary purpose of the interrogation [was] to establish or prove past events potentially relevant to later criminal prosecution." Davis v. Washington, 547 U.S. 813, 822 (2006); see also Michigan v. Bryant, 131 S.Ct. 1143, 1154 (2011).
But the forfeiture-by-wrongdoing doctrine is an exception to the Confrontation Clause's protections. This doctrine permits the introduction of a testimonial statement by an unavailable witness if the preponderance of the evidence shows that the "witness is absent by [the defendant's] own wrongful procurement." Reynolds v. United States, 98 U.S. 145, 158 (1878); United States v. Johnson, 767 F.3d 815, 822–23 (9th Cir.2014) (holding that forfeiture by wrongdoing must be proven by a preponderance of the evidence).
The leading post-Crawford case on forfeiture by wrongdoing, Giles v. California, 554 U.S. 353 (2008) ("Giles"), explains that the rationale behind the rule is avoidance of "an intolerable incentive for defendants to bribe, intimidate, or even kill witnesses against them." 554 U.S. at 365. Relying on that rationale, Giles rejected a theory of forfeiture by wrongdoing that would have permitted unconfronted testimonial statements to be admitted against a defendant any time the defendant had by his own culpable acts rendered the witness unavailable. Id . at 364–65, 368. Explaining that the "bad acts" theory could not be reconciled with "the common law's uniform exclusion of unconfronted inculpatory testimony by murder victims," id. at 368, Giles held that forfeiture by wrongdoing applies only where the defendant engaged in "conduct designed to prevent a witness from testifying," id. at 365.
Accordingly, the trial judge allowed Officer Ward to testify to statements made by Leif Jr. and Lena in the hours after the incident. Carlson was convicted and sentenced to ten days' jail time and four years' probation. The Appellate Division affirmed the judgment, the Court of Appeal denied a petition for writ of mandate, and the California Supreme Court denied habeas relief. Carlson then timely filed a federal habeas petition. See 28 U.S.C. § 2254. The district court denied the petition, concluding that the trial court's determination that Carlson forfeited his Confrontation Clause rights was not an unreasonable application of the Supreme Court's forfeiture-by-wrongdoing doctrine as articulated in Giles v. California, 554 U.S. 353 (2008).
The Ninth Circuit affirmed this conviction, holding that simple acquiescence in another's wrongful conduct designed to keep a witness from testifying does not amount to forfeiture by wrongdoing, but the state court's ruling on the forfeiture question, while murky, was consistent with a finding that Carlson engaged in more culpable conduct.
- See more at: http://caselaw.findlaw.com/us-9th-circuit/1705908.html#sthash.kYlyNNos.dpuf
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.
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But the forfeiture-by-wrongdoing doctrine is an exception to the Confrontation Clause's protections. This doctrine permits the introduction of a testimonial statement by an unavailable witness if the preponderance of the evidence shows that the "witness is absent by [the defendant's] own wrongful procurement." Reynolds v. United States, 98 U.S. 145, 158 (1878); United States v. Johnson, 767 F.3d 815, 822–23 (9th Cir.2014) (holding that forfeiture by wrongdoing must be proven by a preponderance of the evidence).
The leading post-Crawford case on forfeiture by wrongdoing, Giles v. California, 554 U.S. 353 (2008) ("Giles"), explains that the rationale behind the rule is avoidance of "an intolerable incentive for defendants to bribe, intimidate, or even kill witnesses against them." 554 U.S. at 365. Relying on that rationale, Giles rejected a theory of forfeiture by wrongdoing that would have permitted unconfronted testimonial statements to be admitted against a defendant any time the defendant had by his own culpable acts rendered the witness unavailable. Id . at 364–65, 368. Explaining that the "bad acts" theory could not be reconciled with "the common law's uniform exclusion of unconfronted inculpatory testimony by murder victims," id. at 368, Giles held that forfeiture by wrongdoing applies only where the defendant engaged in "conduct designed to prevent a witness from testifying," id. at 365.
Accordingly, the trial judge allowed Officer Ward to testify to statements made by Leif Jr. and Lena in the hours after the incident. Carlson was convicted and sentenced to ten days' jail time and four years' probation. The Appellate Division affirmed the judgment, the Court of Appeal denied a petition for writ of mandate, and the California Supreme Court denied habeas relief. Carlson then timely filed a federal habeas petition. See 28 U.S.C. § 2254. The district court denied the petition, concluding that the trial court's determination that Carlson forfeited his Confrontation Clause rights was not an unreasonable application of the Supreme Court's forfeiture-by-wrongdoing doctrine as articulated in Giles v. California, 554 U.S. 353 (2008).
The Ninth Circuit affirmed this conviction, holding that simple acquiescence in another's wrongful conduct designed to keep a witness from testifying does not amount to forfeiture by wrongdoing, but the state court's ruling on the forfeiture question, while murky, was consistent with a finding that Carlson engaged in more culpable conduct.
- See more at: http://caselaw.findlaw.com/us-9th-circuit/1705908.html#sthash.kYlyNNos.dpuf
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.
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Thursday, August 6, 2015
A Detention Occurs When an Officer Activates Emergency Lights Behind a Parked Car and the Driver Stays Put.
The outcome of some cases turn on when the defendant is detained and whether there was reasonable suspicion for the detention at that point in time. If the stop is not lawful, the evidence resulting from the stop can sometimes be suppressed under the Fourth Amendment and under Penal Code section 1538.5 in California.
In People v. Brown (2015) __Cal.4th __, Case No. S218993, (Brown), the outcome was determined by the court's analysis of these issues. In Brown, an officer was notified of a 9-1-1 call of a fight in an alley and when he entered the alley, he saw Brown driving his car but no one else. When the officer questioned Brown about seeing the fight, Brown did not respond. The officer came around and saw Brown parked. Pulling up behind Brown, the officer flashed his emergency lights and Brown stayed in the car. The officer saw Brown sitting behind the wheel, apparently intoxicated. Brown was subsequently arrested for DUI.
The court was asked to determine the point in time when Brown was detained and whether there was reasonable suspicion to detain him at that time. The court concludes that Brown was detained when the emergency lights were activated. A reasonable person under the circumstances would not have felt free to leave and Brown submitted to the show of authority by remaining in his parked car. The court further concluded that Brown's brief detention was supported by reasonable suspicion.
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.
In People v. Brown (2015) __Cal.4th __, Case No. S218993, (Brown), the outcome was determined by the court's analysis of these issues. In Brown, an officer was notified of a 9-1-1 call of a fight in an alley and when he entered the alley, he saw Brown driving his car but no one else. When the officer questioned Brown about seeing the fight, Brown did not respond. The officer came around and saw Brown parked. Pulling up behind Brown, the officer flashed his emergency lights and Brown stayed in the car. The officer saw Brown sitting behind the wheel, apparently intoxicated. Brown was subsequently arrested for DUI.
The court was asked to determine the point in time when Brown was detained and whether there was reasonable suspicion to detain him at that time. The court concludes that Brown was detained when the emergency lights were activated. A reasonable person under the circumstances would not have felt free to leave and Brown submitted to the show of authority by remaining in his parked car. The court further concluded that Brown's brief detention was supported by reasonable suspicion.
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.
Wednesday, August 5, 2015
When an Excused Juror Transforms into a Prosecution Witness, Defendant Gets a New Trial.
People bond in the strangest circumstances. Here, the appellate court acknowledges that juror bias likely occurred when a dismissed juror was called as a prosecution witness in the same trial that he had been excused from. This denied the defendant a fair trial and the case was reversed.
In People v. Morris (2015)__Cal.App.4th __, Case No. B254910, decided on June 10, 2015, a jury convicted Morris of possession of cocaine base for sale. At trial, evidence was admitted that police officers conducted a search of an apartment where drugs and money were found. Morris' wallet, containing his identification, was also found. A series of text messages discovered on his cell phone indicated Morris was involved in drug sales. A defense witness, Vinoya, testified the money found in the apartment was hers and that Morris did not live in the apartment.
During Vinoya's testimony, Juror No. 10 told the court that he had overheard Morris talking on a cell phone and he believed Morris was speaking to Vinoya. The juror overheard Morris saying that he had left money for her inside a pink shoe in the shoebox and that she might have to testify. The juror was dismissed. Over defense objection, the prosecution was allowed to call the dismissed juror to impeach Vinoya.
On appeal, Morris claimed the trial court erred in allowing the prosecution to call the dismissed juror as a witness. The court agreed. A sitting juror may not be called as a witness before the same jury in the trial (Evid. Code, § 704). The court acknowledged that by its plain language, section 704 does not apply to a juror who has been excused; however, the Sixth Amendment and due process guarantee a defendant a right to a fair trial by an impartial jury. "[A]llowing an excused juror to testify in a case in which he or she had once been a juror creates a constitutionally unacceptable probability that the other jurors who ultimately decide the case may look with favorable bias on the excused juror's testimony due to their shared jury experience." (see People v. Sanders (1988) 203 Cal.App.3d 1510). The court further explained that because the evidence of intent to sell was not overwhelming, the dismissed juror's impeachment of Vinoya was not harmless beyond a reasonable doubt.
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.
In People v. Morris (2015)__Cal.App.4th __, Case No. B254910, decided on June 10, 2015, a jury convicted Morris of possession of cocaine base for sale. At trial, evidence was admitted that police officers conducted a search of an apartment where drugs and money were found. Morris' wallet, containing his identification, was also found. A series of text messages discovered on his cell phone indicated Morris was involved in drug sales. A defense witness, Vinoya, testified the money found in the apartment was hers and that Morris did not live in the apartment.
During Vinoya's testimony, Juror No. 10 told the court that he had overheard Morris talking on a cell phone and he believed Morris was speaking to Vinoya. The juror overheard Morris saying that he had left money for her inside a pink shoe in the shoebox and that she might have to testify. The juror was dismissed. Over defense objection, the prosecution was allowed to call the dismissed juror to impeach Vinoya.
On appeal, Morris claimed the trial court erred in allowing the prosecution to call the dismissed juror as a witness. The court agreed. A sitting juror may not be called as a witness before the same jury in the trial (Evid. Code, § 704). The court acknowledged that by its plain language, section 704 does not apply to a juror who has been excused; however, the Sixth Amendment and due process guarantee a defendant a right to a fair trial by an impartial jury. "[A]llowing an excused juror to testify in a case in which he or she had once been a juror creates a constitutionally unacceptable probability that the other jurors who ultimately decide the case may look with favorable bias on the excused juror's testimony due to their shared jury experience." (see People v. Sanders (1988) 203 Cal.App.3d 1510). The court further explained that because the evidence of intent to sell was not overwhelming, the dismissed juror's impeachment of Vinoya was not harmless beyond a reasonable doubt.
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, August 4, 2015
Can a Defendant Be Convicted Twice for One Sexual Act?
No. In People v. Soria (2015) _Cal.App.4th_, Case No. C070238, ("Soria"), decided on August 3, 2015, the Court of Appeal held that the two counts must be consolidated.
In Soria, supra, defendant was convicted twice for one sexual act at trial. He was convicted of rape with an unconscious person in violation of Penal Code section 261, subdivision. (a)(4) , (count one). Additionally, he was convicted of rape of an intoxicated person in violation of Penal Code section 261, subdivision (a)(3), (count two). In this appeal, defendant argued he can only be convicted once for one sexual act and the Court of Appeal agreed.
The court explained that it was following the California Supreme Court's decision in People v. Craig (1941) 17 Cal.2d 453 (Craig), and concluded that defendant cannot be convicted of two counts of rape for a single act of intercourse. In Craig, supra, 17 Cal.2d 453, the California Supreme Court held that under section 261, only "one punishable offense of rape results from a single act of intercourse, although that act may be accomplished under more than one of the conditions or circumstances specified in the . . . subdivisions. These subdivisions merely define the circumstances under which an act of intercourse may be deemed an act of rape; they are not to be construed as creating several offenses of rape based upon that single act." (Id. at p. 455.). [O]nly one punishable offense of rape results from a single act of intercourse, though it may be chargeable in separate counts when accomplished under the varying circumstances specified in the subdivisions of section 261 of the Penal Code." (Id. at p. 458.)
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.
In Soria, supra, defendant was convicted twice for one sexual act at trial. He was convicted of rape with an unconscious person in violation of Penal Code section 261, subdivision. (a)(4) , (count one). Additionally, he was convicted of rape of an intoxicated person in violation of Penal Code section 261, subdivision (a)(3), (count two). In this appeal, defendant argued he can only be convicted once for one sexual act and the Court of Appeal agreed.
The court explained that it was following the California Supreme Court's decision in People v. Craig (1941) 17 Cal.2d 453 (Craig), and concluded that defendant cannot be convicted of two counts of rape for a single act of intercourse. In Craig, supra, 17 Cal.2d 453, the California Supreme Court held that under section 261, only "one punishable offense of rape results from a single act of intercourse, although that act may be accomplished under more than one of the conditions or circumstances specified in the . . . subdivisions. These subdivisions merely define the circumstances under which an act of intercourse may be deemed an act of rape; they are not to be construed as creating several offenses of rape based upon that single act." (Id. at p. 455.). [O]nly one punishable offense of rape results from a single act of intercourse, though it may be chargeable in separate counts when accomplished under the varying circumstances specified in the subdivisions of section 261 of the Penal Code." (Id. at p. 458.)
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.
Saturday, August 1, 2015
Can the Lion Hunter Be Caged For Killing [Murdering] Cecil?
No doubt you have read about the Milwaukee dentist in the news because, allegedly, he went to Africa on safari where he and his guide used fresh meat to lure Cecil, a beloved lion that belonged to the Hwange National Park sanctuary, out of the protected territory. Then he shot Cecil with a bow and arrow. Afterward, the dentist and his guide chased Cecil down as Cecil tried to limp away for about two days. When the dentist and his guide caught up with Cecil, the dentist shot Cecil with a gun. Then Cecil was beheaded. Some of these facts are disputed by the guide.
There appears to be two different routes to bring the dentist to justice. First, the dentist can be extradited to Africa to face the justice system in Zimbabwe. Additionally, it might be possible to prosecute him in the United States in federal court using the Lacey Act, if certain facts develop after a full investigation.
Yesterday, officials in Zimbabwe charged the dentist with the same charges his guide is facing there. CNN reports that the dentist, his guide, and the owner of the land where the hunt took place are accused of an illegal hunt under Zimbabwe’s Parks and Wildlife Act. The dentist is accused of financing an illegal hunt, and he and the guide are also accused of illegally using a crossbow "to conceal the illegal hunt" so they wouldn't alert rangers on patrol. Although news reports indicate that the guide now faces up to 15 years in prison if convicted, it is not clear if the dentist’s charges will carry the same potential sentence.
The official Zimbabwe charges may allow the dentist to be extradited under a treaty Zimbabwe has with the United States. The treaty allows persons of interest to be extradited between the two countries in cases that include a conspiracy or attempt to commit a crime, aiding and abetting a crime, or being an accessory. Although the case could stay in United States courts for many years before extradition occurs, there are few options to avoid extradition.
Here in the United States, the Lacey Act outlaws the sale of wildlife that's been killed in violation of a U.S. or foreign law. Under the Lacey Act it is illegal "to import, export, transport, sell, receive, acquire, or purchase in interstate or foreign commerce ... any fish or wildlife taken, possessed, transported, or sold in violation of any law or regulation of any State or in violation of any foreign law." Recently, in Los Angeles a businessman pleaded guilty to Lacey Act charges related to smuggling endangered abalone and the bladders of Totoaba fish.
Experts dispute whether it is enough to satisfy the 'purchase' requirement of the Lacey Act by hiring a guide, or other local services or to purchase a hunting license or permit overseas so that this occurs in 'interstate commerce.' Some experts believe that to prosecute the dentist under the Lacey Act the government must develop evidence to establish that the lion killer brought part of the lion back to the United States as a trophy. Still others believe it might be possible to show that the killer's actions indicate that he intended to violate the act or made an attempt to violate the act. Although representatives of the dentist claim he relied on a professional guide and believed all the necessary permits were obtained to make his hunt legal.
I support the World Wildlife Fund. If you murder a beloved lion, don't seek me out as your lawyer.
Readmore:http://www.businessinsider.com/did-walter-palmer-break-any-us-law-2015-7#ixzz3ha8fwe00
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.
There appears to be two different routes to bring the dentist to justice. First, the dentist can be extradited to Africa to face the justice system in Zimbabwe. Additionally, it might be possible to prosecute him in the United States in federal court using the Lacey Act, if certain facts develop after a full investigation.
Yesterday, officials in Zimbabwe charged the dentist with the same charges his guide is facing there. CNN reports that the dentist, his guide, and the owner of the land where the hunt took place are accused of an illegal hunt under Zimbabwe’s Parks and Wildlife Act. The dentist is accused of financing an illegal hunt, and he and the guide are also accused of illegally using a crossbow "to conceal the illegal hunt" so they wouldn't alert rangers on patrol. Although news reports indicate that the guide now faces up to 15 years in prison if convicted, it is not clear if the dentist’s charges will carry the same potential sentence.
The official Zimbabwe charges may allow the dentist to be extradited under a treaty Zimbabwe has with the United States. The treaty allows persons of interest to be extradited between the two countries in cases that include a conspiracy or attempt to commit a crime, aiding and abetting a crime, or being an accessory. Although the case could stay in United States courts for many years before extradition occurs, there are few options to avoid extradition.
Here in the United States, the Lacey Act outlaws the sale of wildlife that's been killed in violation of a U.S. or foreign law. Under the Lacey Act it is illegal "to import, export, transport, sell, receive, acquire, or purchase in interstate or foreign commerce ... any fish or wildlife taken, possessed, transported, or sold in violation of any law or regulation of any State or in violation of any foreign law." Recently, in Los Angeles a businessman pleaded guilty to Lacey Act charges related to smuggling endangered abalone and the bladders of Totoaba fish.
Experts dispute whether it is enough to satisfy the 'purchase' requirement of the Lacey Act by hiring a guide, or other local services or to purchase a hunting license or permit overseas so that this occurs in 'interstate commerce.' Some experts believe that to prosecute the dentist under the Lacey Act the government must develop evidence to establish that the lion killer brought part of the lion back to the United States as a trophy. Still others believe it might be possible to show that the killer's actions indicate that he intended to violate the act or made an attempt to violate the act. Although representatives of the dentist claim he relied on a professional guide and believed all the necessary permits were obtained to make his hunt legal.
I support the World Wildlife Fund. If you murder a beloved lion, don't seek me out as your lawyer.
Readmore:http://www.businessinsider.com/did-walter-palmer-break-any-us-law-2015-7#ixzz3ha8fwe00
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.
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