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.

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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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.

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. 

  

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. 

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.  

   

Can I Bring My Gun to California?

Maybe.  It depends on the type of gun, how you plan to carry it and how long you plan to stay.  

If you are merely traveling through California as a visitor, as long as the gun is not on the list of banned firearms from California, such as certain assault weapons [check the California Secretary of State’s website for the full list of banned firearms], if you can legally carry the weapon in your home state, you can have the weapon with you in California  if you carry it in a separate locked container within your vehicle and the weapon is unloaded.  The locked container cannot be the glove box or the utility box that is attached to the vehicle, it needs to be a separate locked container.  

If you are moving to California, you need to apply for a certificate to own the gun in California within 60 days of your move here. New residents need to contact the secretary of state at  https://oag.ca.gov/firearms/ab991  and submit a  New Resident Report of Firearm Ownership (BOF 4010A) form along with a $19 application fee.  If you do not apply for a certificate to keep the weapon, the law requires that you sell or transfer the firearm to a California licensed firearms dealer or to another individual using a California licensed firearms dealer to conduct the transaction; or sell or transfer the firearm to a California police or sheriff's department. If you choose to sell or transfer the firearm to a police or sheriff’s department, you should contact them for instructions before bringing in your weapon so that they can instruct you on how to conduct the transfer.  

Good luck. 

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 Amazon link below you will be directed to the Amazon website  Check  out the great deals they have on auto accessories. 



  

Romantic Date For Teens Goes Awry

It appeared to be the perfect spot to grab a quick bite to eat  before the end of an inexpensive date for two teenagers.  But then something went wrong.  

The water was beautiful and the boat beckoned to two teens out on a late summer night date.  The teens wanted to finish their date in style. They hopped aboard the boat to eat their meals from a local fast-food restaurant and to click some selfies to remember this night.   

But when the camera flashed, the teens were surprised by the family of five who were woken up by the flash of their camera at 2 a.m.  The frightened teens fled but left their fast-food bags on the boat, including the receipts.  

From these receipts, local officers in Norwalk, Connecticut were able to track down the teens.  The full story can be found at  The Hour (The Hour, http://www.thehour.com)

News reports of this incident indicate that the teens now face charges of  breach of peace and criminal trespass.

In California, the charge of  disturbing the peace is found in Penal Code section 415, which provides, “Any of the following persons shall be punished by imprisonment in the county jail for a period of not more than 90 days, a fine of not more than four hundred dollars ($400), or both. . :
   (1) Any person who unlawfully fights in a public place or
challenges another person in a public place to fight.
   (2) Any person who maliciously and willfully disturbs another
person by loud and unreasonable noise.
   (3) Any person who uses offensive words in a public place which
are inherently likely to provoke an immediate violent reaction.

Willfully is defined in Penal Code section 7, subdivision (1), as “a purpose or willingness to
commit the act, or make the omission referred to. It does not require any intent to violate law, or to injure another, or to acquire any advantage.”

Maliciously is defined in Penal Code section 7, subdivision (4), as “a wish to vex,
annoy, or injure another person, or an intent to do a wrongful act, established either by proof or presumption of law.” 

Thus, although the flash woke up the family of five, the teenagers  probably would not be charged with disturbing the peace here because if they were it could be argued that the teens were not acting willfully and maliciously because they were not aware of the family’s presence on the boat.  Also, the defense attorney might also argue that the family was disturbed the the “flash” of the camera, not by the noise the teens made. 

Also, trespass in California is found in Penal Code section 602. Penal Code section 602, subdivision (m), provides that one type of trespass is, “Entering and occupying real property or structures of any kind without the consent of the owner, the owner's agent, or the person in lawful possession.” Most trespasses are charged as misdemeanors, which means, if convicted, a defendant can be sentenced to up to six month in jail or ordered to pay a fine up to $1,000, or receive both a jail sentence and a fine. However,  a motion can usually be made to reduce a misdemeanor trespass to an infraction.

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.

Facebook v. Superior Court (Darrell Hunter) (2015) : Pretrial Discovery Subpoena Is Quashed

In Facebook v. Superior Court (2015) _Cal.App.4th__, decided on September  8, 2015,  in a  petition for a writ of mandate, each of the Defendants served a subpoena duces tecum on one or more of the petitioners seeking both public and private content from user accounts of the murder victim and a witness.  Petitioners moved to quash the subpoenas, objecting under the federal Stored Communications Act (SCA or Act) (§ 18 U.S.C. § 2701 et seq.) to the compelled disclosure of the content of their users’ electronic communications. 

Section 2702(a) provides that electronic communication services “shall not knowingly divulge” the contents of a user communication to anyone, with limited exceptions (§ 2702(b)). Defendants responded that the requested information is necessary to properly defend against the pending charges, and that any statutory privacy protections afforded a social media user must yield to a criminal defendant’s constitutional rights to due process, presentation of a complete defense, and effective assistance of counsel.  

The trial court denied petitioners’ motions to quash and ordered petitioners to produce responsive material for in camera review. Petitioners filed the instant petition for writ of mandate and/or prohibition in this court. The Court of Appeal issued an order staying the production order and requested opposition. 

After consideration of Defendants’ answer, and petitioners’ reply thereto, The Court of Appeal  denied Defendants’ request to dissolve the temporary stay and issued an order requiring the respondent superior court to show cause why the relief requested by petitioners should not be granted.  The appellate court granted the petition and directed the trial court to issue an order quashing the subpoenas. 

However, the appellate court noted that “our ruling is limited to the pretrial context in which the trial court’s order was made” - which was precisely one day before trial.  And the appellate court adds, “Nothing in this opinion would preclude Defendants from seeking at trial the production of the materials sought here (or petitioners again seeking to quash subpoenas), where the trial court would be far better equipped to balance the Defendants’ need for effective cross-examination and the policies the SCA is intended to serve. 

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.

Evidence Obtained From “Butt Dialed” Calls Can Lead to Arrest or Civil Liability

“9-1-1, what’s your emergency?” No one answered, but the 9-1-1 operator heard evidence concerning a crime in an inadvertent call to 9-1-1, colloquially called a “butt dialed” call, but more formally called “pocket dialing” by the courts.  

The operator in New Jersey heard a man and his accomplice talk about breaking into homes, emptying drawers, and stealing household goods, according to an AP report from last Friday. This evidence was used to indict the man on burglary charges, according to NJ.com reports. A police report allegedly indicates that jewelry, electronics, $11,300 in bonds, and a handgun were recovered. 

In a recent decision, the Sixth District Court of Appeals found that a man on vacation in Italy has no privacy rights in his conversation that occurred on a balcony in Italy, when he inadvertently pocket dialed a number and the recipient recorded a  conversation the man was having with a friend where they were discussing a potential employment termination at a U.S. company. The recipient of this call was in the U.S. and she took notes, and recorded part of the call, which is being offered as evidence in a civil lawsuit for discrimination.  (See, Huff and Huff vs. Spaw (6th Cir.  2015), decided on July 21, 2015, Case No. 14-5123.)   

Because inadvertent calls can be made at the most awkward moments, Lisa Brownlee, a contributor to Forbes magazine, recommends a call confirmation program, like Call Confirm, to prevent accidental calls. She writes that this app prevents a single accidental tap from dialing a number because a second affirmative tap is required to confirm that you intend the call to go through. 

Otherwise, she recommends that the best solution is to power off the phone while not in use to prevent inadvertent calls. 

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.

Bowling on Wheels

Some days it just doesn't pay to get out of bed.   A Pennsylvania man had a coughing fit while at work today and when he finished, he had destroyed 23 cars.   

While driving his milk truck earlier today, the man choked on his soft drink.  While his attention was consumed by his choking fit, he wasn't paying attention to where he was on the the road and he accidentally plowed down 23 cars at a new car dealership.  

The Associated Press reports that the police inspected the milk truck for mechanical malfunctions and none were found.  Allegedly, the truck rolled down an embankment off the highway and onto the dealership lot, but the driver never applied his brakes throughout this incident.  The truck driver was charged with careless driving in Pennsylvania. 

In California, this would likely be charged as reckless driving in violation of  Vehicle Code section 23103, subdivision (a), which provides, “A person who drives a vehicle upon a highway in willful or wanton disregard for the safety of persons or property is guilty of reckless driving.” (Veh. Code, § 23103, subd. (a).)  

The penalty for reckless driving, if convicted, is imprisonment in a county jail for not less than five days nor more than 90 days or by a fine of not less than one hundred forty-five dollars ($145) nor more than one thousand dollars ($1,000), or by both that fine and imprisonment.”  (Veh. Code, §23103, subd. (c ).)  Additionally, the court can order restitution to the victim, which means if this traffic accident occurred in California, a court could order the truck driver to  reimburse the dealership for its damages. But, if this truck driver was an employee, his employer  might pay direct victim restitution under a respondent superior theory of liability.  

For more information, see The (Sharon) Herald (http://bit.ly/1XG02em ) 

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.

A Ride on a Buffing Machine Comes to an End

Who wouldn’t want to take a ride on a high-powered buffing machine?  School custodians,  who get to use the buffing machine, have such an awesome job!

A young man in Florida might  have been thinking  exactly that as he  broke into a Florida middle school on Labor Day Monday when the school was closed.  The young man's goal apparently was to  take the buffing machine for a ride, according to the Associated Press. 

What might have begun as fun didn't remain fun for long.   When he tried to use the school’s elevator to take the buffing machine to another floor, he found himself stuck.    

The young man called 9-1-1 to get help out of the elevator. When he was found, the young man was wearing a  jacket that did not belong to him. The man was promptly arrested for burglary, theft and criminal mischief.   

In California, burglary is found in Penal Code section 459.  Burglary has two elements:  (1) unlawful entry; accompanied by (2) the intent to commit theft (either felony or misdemeanor) or any other felony.  (§§ 459, 490a; People v. Montoya (1994) 7 Cal.4th 1027, 1041 & fn. 8 (Montoya))  The intent to commit the underlying theft or felony must exist at the time of entry.  (People v. Holt (1997) 15 Cal.4th 619, 699.)

Here, the young man’s defense attorney could argue that he had no intention of committing the theft of the jacket until after he entered the school building and saw it there. 

But, the prosecution could still argue that upon entering the building, the young man intended to commit criminal mischief with the buffing machine.  Because intent is rarely susceptible of direct proof, it may be inferred from all the facts and circumstances disclosed by the evidence.  (People v. Matson (1974) 13 Cal.3d 35, 41.)  "[I]n showing that a defendant entered the premises with felonious intent, the [prosecution] can rely upon reasonable inferences drawn 'from all of the facts and circumstances disclosed by the evidence,' since felonious intent is rarely proven through direct evidence.  [Citation.]"  (In re Anthony M. (1981) 116 Cal.App.3d 491, 501.)  "Burglarious intent can reasonably be inferred from an unlawful entry alone.  [Citation.] (People v. Jordan (1962) 204 Cal.App.2d 782, 786-787.)   

Because the school is a building, not a residence, this would be charged as a second degree burglary. Second degree burglary is also known as commercial burglary and can be charged by the prosecutor as either a felony or a misdemeanor.  Misdemeanor commercial burglary has a penalty of up to one year in county jail.  Felony commercial burglary has a penalty of 16 months, 2 years, or 3 years in county jail under California’s new AB109 sentencing guidelines.  At sentencing, for many cases, a judge also has discretion to place a person convicted of second degree burglary on probation. 

Theft of the jacket in California would likely be charged as a petty theft because the jacket’s fair market value is under $950.  Petty theft under Penal Code section 484, subdivision (a), is a misdemeanor that carries a potential penalty of a  fine not exceeding one thousand dollars ($1,000), or by imprisonment in the county jail not exceeding six months, or both. (Pen.,Code, § 490.) 

Criminal mischief is called vandalism in California (Pen. Code, § 594) and can be charged as a felony or a misdemeanor depending on the amount of damage caused.  Damage of under $400 would be a misdemeanor but damage of $400 or more would likely be charged as a felony.  

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.

Deer Catch a Buzz in Oregon

There are some happy deer in Grants Pass, Oregon.  They found a really large meal at a hemp farm there.  But they are probably still looking for a midnight snack. 

One thousand (1,000) hemp plants were planted at the farm.  After the deer evaded some barbed wire, they breathed in the aroma of all that bountiful hemp.  It smelled so good that there are now only about 40 plants left, according to the Grants Pass Daily Courier. 

Deer are wild animals so there is no crime.  

But, in California, if you have a small animal, like a dog, who trespasses on your neighbor’s property and destroys plants and property, and this happens repeatedly, this behavior could cause you to receive a citation from your local municipality. 

For example, people living within the unincorporated areas of Los Angeles, who have a dog that repeatedly gets out and destroys neighborhood property could be cited with a violation of the Los Angeles Municipal Code, Article 10, which states, “Any animal that harasses passerby or vehicles, attacks other animals, is repeatedly at large, continuously barks, or trespasses on school, public property, or private property will be considered a public nuisance.  It is a misdemeanor to continue to allow your animal to remain a public nuisance.  (Los Angeles County Code Sec. 10.40.065)

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.