California Criminal Lawyer Blog

The U.S. Supreme Court this week heard argument on a case presenting the question of whether Apprendi (530 U.S. 466) applies to consecutive sentences.

In Cunningham (549 U.S. 270), the U.S. Supremes held that
Apprendi applies to California's upper term scheme. So can a judge impose a consecutive sentence based on facts not found by a jury or admitted by the defendant?

It looks like, from a review of all the pundits on the subject, that we will win this one. However, the California Supremes will also claim that somehow this doesn't apply in California, so we
won't get the benefit of this, until we get back to DC. Incidentally, check out (and subscribe to) the SCOTUS blog, a fabulous resource for U.S. Supreme Court stuff like this.

Oregon v. Ice; http://www.scotusblog.com/wp/

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Posted In: California Cases , Sentencing

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This is an amazing case. But, alas, it has been granted review, so it's probably not long for this world.

Here, the victim showed up at the house where gang guys were hanging out. Someone asked, "where are you from?" A fist fight ensued with the eventual shooter, the victim, and the
two defendants. The victim left. The shooter produced a gun and killed the victim.

The defendants were also convicted. The Court of Appeal reversed on insufficiency of the evidence! The Court of Appeal emphasized that the defendants didn't know the shooter even had a gun and did nothing to encourage the shooter to shoot the victim. The Court of Appeal refused to rule that every gang fight permits a conclusion that it's reasonably foreseeable that a killing will result.

People v. Medina; formerly at 153 CA4th 610; rev. granted

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In this case, the defendant possessed heroin and methamphetamine in his motel room. The DA charged and got convictions for two counts of drug possession for sale, and two counts of conspiracy to possess those drugs for sale (there was another guy involved).

The Court of Appeal says that a defendant can be convicted on only one count of conspiracy to possess drugs for sale, no matter how many kinds of drugs he has. Moreover, they rule that the defendant can't be sentenced for both possession for sale and conspiracy to possess the same drugs for sale.

You would think this is a no-brainer, but this defendant has strike priors, so Penal Code sec. 667(c)(6) applies. That section makes it mandatory to impose consecutive sentences for felonies not committed on the same occasion and not arising from the same set of operative facts.

The Court of Appeals holds that conspiracy doesn't end at the commission of the first overt act but is continuing, so the conspiracy and the possession for sale did arise from the same set of operative facts. Thus, 667(c)(6) doesn't require consec. sentences.

People v. Briones; 2008 DJ DAR 15641; DJ, 10/13/08; C/A 2nd, Div. 6

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FAILURE TO ADVISE ON IMMIGRATION CONSEQUENCES DURING THE PLEA

Penal Code sec. 1016.5 requires trial courts to advise defendants during the taking of a plea about possible immigration consequences. A failure to so advise requires the court to set the plea aside, on a showing that the defendant faces adverse immigration consequences and that prejudice resulted from the non-advisement.

In this case, the defendant was advised of immigration consequences at arraignment, but not during the plea several weeks later. The Court of Appeal says that the 1016.5 advisement must
be during the plea itself, not just on some other date.

The case is reversed and remanded to determine whether the defendant can show prejudice.

People v. Akhile; 2008 DJ DAR 15654; DJ, 10/13/08; C/A 1st

Continue reading "FAILURE TO ADVISE ON IMMIGRATION CONSEQUENCES DURING THE PLEA" »

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RECORDING JURY INSTRUCTIONS; CUSTODY FOR POSSESSION; REOPENING JURY
SELECTION

The judge got the parties to stipulate that the court reporter didn't have to write down the jury instructions. It turned out that there were all sorts of problems with the instructions the jury was actually given.

The Court of Appeal makes it pretty clear that they want jury instructions reported. So when your judge pressures you to stipulate, note this case.

Of course, the Court of Appeal finds no actual error here, even with the DA not available (he's a judge now) and defense counsel not recalling lots of stuff.

Here's the second issue. The defendant ran over and killed the victim while the defendant was stealing the victim's son's car. Did the victim have sufficient actual or constructive possession over the car to qualify as a victim of a robbery?

The Court of Appealsays yes, saying, get this, that the victim need only have "loose custody" over the property, and the victim's connection to the car was sufficient here. Love that loose
custody.

And there's yet a third issue.Third issue. Both sides passed on the exercise of peremptory challenges. The court then reopened jury selection and permitted the DA to use a peremptory challenge. This Court of Appeal says that a court can reopen jury selection on finding good cause, and that good cause should be liberally construed and of course here that means the Court of Appeal upholds the reopening.

People v. DeFrance; 2008 DJ DAR 15595; DJ, 10/10/08; C/A 3rd

Continue reading "RECORDING JURY INSTRUCTIONS; CUSTODY FOR POSSESSION; REOPENING JURY " »

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LA SHERIFF'S DEPUTY CHARGED WITH TORTURE, MAYHEM, AND SODOMY FOR ATTACKING WIFE AND HER FRIEND IN IRVINE APARTMENT LEASING OFFICE

NEWPORT BEACH - A Los Angeles Sheriff's deputy has been charged with torturing and forcibly sexually assaulting his wife and another man after learning that his wife was leaving him. Robert Avery McClain, 34, Irvine, is charged with one felony count of aggravated mayhem, one felony count of torture, one felony count of sodomy by force with great bodily injury, with sentencing enhancements for the personal use of a deadly weapon, great bodily injury to a sexual assault victim, and the use of a deadly weapon during a sexual offense. If convicted, he faces a maximum sentence of life in prison. McClain is being held on $1 million bail, and the People will request that he be held without bail at his arraignment at the Harbor Justice Center in Newport Beach.

As the defendant is being medically treated and the arraignment date is to be determined. The Orange County District Attorney's Office will send a media advisory with updated arraignment information when it becomes available.

McClain was a 10-month deputy on probation with the Los Angeles County Sheriff's Department. On Sep. 28, 2008, McClain's 31-year-old wife, Jane Doe, with whom he shares four children, told him that she was leaving him. Jane Doe worked at a leasing office for an apartment complex in Irvine and wanted to leave McClain for one of the residents at the complex, 23-year-old John Doe. McClain is accused of asking Jane Doe to take him to meet John Doe, and the two of them went to John Doe's apartment at approximately 10:00 p.m. After arriving, McClain is accused of leading the victims to the leasing office and into a back kitchenette area. He is accused of starting to argue with Jane Doe and John Doe, and then repeatedly punching and kicking both victims. McClain is accused of taking out a knife and forcing both victims to undress at knife point. McClain also undressed.

While at knife point, McClain is accused of unsuccessfully ordering Jane Doe to orally copulate both him and John Doe. He is accused of giving Jane Doe the knife and instructing her to castrate John Doe. Jane Doe fearfully pretended to follow his instructions. He is accused of using the knife to repeatedly slice John Doe's face.

McClain is accused of leaving John Doe and fleeing the scene, taking Jane Doe with him against her will. After leaving the leasing office, he is accused of forcibly sodomizing Jane Doe, chopping off her hair with the knife, and ultimately driving her back to their Irvine home.

At approximately 5:00 a.m. on Sep. 29, 2008, Jane Doe was able to leave the house with her four children and drive to a nearby hospital. At approximately 7:00 a.m., a cleaning crew discovered John Doe in the leasing office and called 9-1-1. Both victims are expected to survive.

Continue reading "ORANGE COUNTY POLICE OFFICER CHARGED WITH TORTURE" »

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Posted In: Bad Cop - No Donut , In The News , Police Misconduct Cases

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By Mark Arner
STAFF WRITER

July 29, 2008

K.C. ALFRED / Union-Tribune

Chula Vista has agreed to pay $400,000 to settle a lawsuit filed by a former senior at Otay Ranch High School. He contended police mistook him for a trailer thief in January 2006, then handcuffed and knocked him unconscious in his family's driveway.

Christian Morales, now 20, said in a federal lawsuit that Chula Vista police Officer Moises Rodriguez violated his civil rights.

Morales said he suffered a concussion in the beating, sprained his back and suffered muscle spasms in his legs.

Morales amended the lawsuit in March, alleging that four Chula Vista police officers had stalked and harassed him in January because of the litigation.

Peter L. Garchie, an attorney representing Rodriguez, confirmed the settlement had been approved in federal court Friday. Garchie said Rodriguez remains employed as a Chula Vista police officer.

Attorney Mary Frances Prevost, who represents Morales, said the settlement would help Morales move on with his life and allow him to stop worrying.

Much of the settlement will be needed to pay medical bills for physical and psychological damage that police caused, Prevost said.

“When we walked into court Friday, Christian was shaking and tears were rolling off his eyelashes,” she said. “He kept telling me, 'Just make it go away.' And we did. We made the litigation go away.”

In accepting the $400,000 payment, Morales agreed to dismiss all lawsuits against police and other city employees linked to the incident.

Interim City Attorney Bart Miesfeld, who represented Chula Vista and 10 other officers listed as defendants, said yesterday that minor issues still needed to be negotiated, but he declined to say what they were.

A city spokeswoman could not say yesterday how the settlement would be paid.

The incident occurred Jan. 30, 2006, as Chula Vista police were looking for a Latino male in a brown pickup who had stolen a flatbed trailer.

When Morales pulled into his driveway in a brown 2003 GMC pickup, Rodriguez confronted him.

Morales said he did nothing wrong and tried to follow Rodriguez's orders. He said when he opened the driver's door to get out, Rodriguez threatened him with a Taser, jerked him from the pickup and handcuffed him.

Morales said the officer then knocked him to the concrete driveway.

“He somehow jumped on me and proceeded to beat me on the head with a hard object and yelled, 'Where is the (expletive) trailer?' ” Morales said in a 2007 interview.

Rodriguez has denied any wrongdoing and contended in court papers that any injuries claimed by Morales “were caused directly and proximately by (Morales') own negligence, fault, recklessness, or unlawful conduct.”

Continue reading "SAN DIEGO CIVIL RIGHTS ATTORNEY MARY FRANCES PREVOST WINS $400,000 SETTLEMENT FOR CLIENT AGAINST CHULA VISTA POLICE OFFICER" »

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By Matthew Rodriguez
UNION-TRIBUNE STAFF WRITER

5:40 p.m. September 8, 2008

VISTA – A judge dismissed charges Monday against a North County softball coach accused of having unlawful sex with a 17-year-old female player after a jury deadlocked in his trial
Defense attorneys for 37-year-old Christopher Facione, founder of the Next Level Athletics in Encinitas, said Facione felt vindicated by the dismissal.

Click HERE and HERE for recent stories.

“He is so happy to be able to clear his name after this ordeal,” said Mary Frances Prevost, one of his attorneys.

Prevost said the case revolved around the credibility of the player. “We were able to prove that the witness lied repeatedly,” she said.

Authorities alleged Facione had unlawful sex with the teen at his Carlsbad home on two occasions: Oct. 2, 2007, and sometime between Oct. 7 and Oct. 20, 2007.

Defense attorneys argued that the player stopped going to practice and lied to her parents about why by saying that Facione was harassing her, prompting her father to go to police.

“She couldn't stop the snowball from getting bigger and bigger,” Prevost said.

Jurors were split 8 to 4 in favor of acquittal for the alleged Oct. 2 incident, and 11 to 1 in favor of acquittal regarding the second.

“The jury had questions on the believability of the evidence,” said Sean Leslie, also an attorney for Facione. “They feel they didn't meet the burden.”

After jurors came back deadlocked, Judge Joel Pressman dismissed the case.

Facione faced a maximum sentence of three years and eight months in prison if convicted.

Prevost said prosecutors offered to reduce the charges to one misdemeanor count, without jail time, after their first witness, a Carlsbad police detective, took the stand. But Facione refused the offer, Prevost said.

Prevost said Facione is still involved with Next Level Athletics, an Encinitas-based youth sports organization, and will continue to coach, but he had stayed out of the dugout and limited contact with players while the case was pending.

Continue reading "SAN DIEGO CRIMINAL DEFENSE ATTORNEY MARY FRANCES PREVOST WINS VICTORY FOR COACH WRONGFULLY ACCUSED OF SEX CRIMES AGAINST PLAYER" »

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Sacramento police officer arrested in Rocklin
From Niesha Lofing

A Sacramento police officer has posted bail after being arrested in Rocklin this weekend, according to records and police spokesmen.

Jeffrey Wayne McKay, 34, of Rocklin, was arrested by Rocklin police late Saturday on suspicion of indecent exposure, exhibiting a deadly weapon, disorderly conduct and threatening to commit a crime resulting in death or great bodily injury, according to online Placer County Jail information.

McKay was booked into the Auburn jail at 11:40 p.m. Saturday and was being held on $15,000 bail.

He was released on a bail bond.

Information about McKay's arraignment hearing was not available early Monday morning, a Placer County Superior Court clerk said.

McKay has worked as a Sacramento police officer for six years and is assigned to the Metro Division, said Sacramento police spokesman Konrad Von Schoech.

He said an administrative investigation is under way. He declined further comment.

Continue reading "CALIFORNIA CRIMINAL DEFENSE LAWYER NEWS: SACRAMENTO POLICE OFFICER ARRESTED FOR INDECENT EXPOSURE" »

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JURY SELECTION: PROSECUTOR'S SPECULATIVE REASONS

Paulino v. Harrison (9th Cir. 9/4/08, 07-55429) 08 C.D.O.S. 11772

On remand from Ninth Circuit to district court to conduct evidentiary hearing to allow prosecutor to explain her actual motivations for the peremptory challenges, prosecutor testified she had no memory of the jury selection or her reasons for striking the jurors, could not find her notes, and reading the transcript of the jury selection did not refresh her recollection.

"Therefore, instead of explaining her actual non-discriminatory reasons for exercising her peremptory challenges, the prosecutor offered hypothetical race-neutral reasons for striking each potential African-American juror in question. She acknowledged that the reasons she articulated were mere speculation drawn from her reading of the voir dire transcript. Indeed, she testified that all the parties present — herself, the State’s attorney, Paulino’s attorney, the magistrate judge — were 'on the same page;' all each could do was comment on the transcript." The magistrate judge before whom the hearing was held recommended the petition be granted, and the district court adopted the recommendations.

In affirming the district court's ruling, Judge Richard Paez, speaking for the panel, says: "The State attempts to turn the prosecutor’s testimony about the transcript into circumstantial evidence by recasting her conjectured reasons as 'reconstructed' reasons. The State lifts the term 'reconstructed' from cases, like this one, that involved “reconstruction” hearings — that is, an evidentiary hearing that takes place some time after the trial, where the prosecutor testifies to her actual reasons for striking the venire-members in question, or the State presents circumstantial evidence of those reasons — and misapplies it to the prosecutor’s testimony here. [Fn. om.] Her reasons were not 'reconstructed,' as that term is used in Batson cases; they were constructed out of whole cloth. As the district court found, the prosecutor did nothing more than guess why she might have removed the jurors in question."

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In Hofsheier (37 Cal.4th 1185), the California Supreme Court held that mandatory sex offender registration under PC 290 for consensual oral copulation with a minor 16 or 17 violated equal protection, because consensual sexual intercourse with such a minor didn’t trigger mandatory registration.

This Court of Appeal applies Hofsheier to hold that mandatory registration for Penal Code 288a(b)(2), consensual oral copulation with a 14-year old, also violates equal protection.

People v. Hernandez; 2008 DJ DAR 13935; DJ, 9/4/08; C/A 2nd, Div. 2

Continue reading "NO MANDATORY SEX REGISTRATION FOR CONSENSUAL ORAL SEX WITH A 14-YEAR OLD" »

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HARMLESS CUNNINGHAM ERROR

The court imposed upper term based on the victims being particularly vulnerable, but the defendant didn’t admit that nor did the jury find that fact. And so the sentencing must be reversed as a violation of Cunningham (549 U.S. 270), right?

Nope. They find harmless error: a jury would have found that the victims were particularly vulnerable. Hey, just deny the defendant a jury trial on everything and then affirm by finding that any jury would have convicted anyway.

Why do we bother with these troublesome juries?

People v. Esquibel; 2008 DJ DAR 13876; DJ, 9/3/08; C/A 2nd, Div. 8

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