Battered homeless person syndrome = relevant evidence; 1st deg. murder conviction reversed

26 Oct

Super interesting case where the trial court excluded a proposed defense expert who would testify about how homeless people are more likely to be victims of crime of violence.  The testimony was offered to support the defendant’s imperfect self-defense claim to 1st degree murder.  The trial court excluded the evidence saying it was too general to be applicable to D and that the testimony was not beyond the common experience of jurors.  COA (1st Dist; case out of Sonoma) disagreed. The COA likened the evidence to battered women’s syndrome evidence and held it was relevant to both the subjective component of self-defense/imperfect self-defense and the objective component of self-defense because the jury was to consider whether the defendant’s belief that he was in danger was reasonable in light of all the circumstances.  The COA also held the evidence was relevant to corroborating statements D made to police about self-defense.  And, they held that the evidence was beyond the common experience of jurors.  Notably, the expert witness was a retired judge.  Pretty, pretty, pretty good.


Prejudicial error. Reversed. Booya.

Second victory for juveniles with LWOP sentences today

25 Oct

And another thing. 2nd Dist. COA also held today that when a trial court is going to hold a post-Graham hearing on whether LWOP is appropriate for a juvenile convicted of homicide, they have to make specific findings about “whether the juvenile offender’s crime reflects permanent incorrigibility arising from irreparable corruption.”  That language comes from the Supreme Court case Montgomery.  In this case, which was pre-Montgomery, the trial court focused on the nature of the crime and not the prospects for rehabilitation. Because the court never really applied the appropriate factors, the remedy was remand for resentencing.

Juveniles who were already resentenced from LWOP to Life can still petition for resentencing under 1170(d)

25 Oct

Lovely opinion today.  Juveniles were given LWOP. After Graham, they were resentenced to life with the possibility of parole. After 1170(d) was passed, which allows juveniles sentenced to LWOP to petition for resentencing and was enacted because of Graham, the now grown men petitioned for resentencing and were both released on probation with life terms suspended. The prosecution appealed, arguing that 1170(d) did not apply to them because they had already been resentenced from LWOP to life.  The COA disagreed, saying that the plain language of 1170(d) requires only that the juvenile was originally sentenced to LWOP and the statute makes no mention of the situation where a juvenile was originally sentenced to LWOP but then had that sentence modified due to Graham.  Apart from the beauty of the holding itself, this opinion is lovely because it has some good one-liners:

“The People seek refuge under the plain meaning rule. We understand the People’s point but we cannot, in good conscience, subscribe to the “‘dictionary school of jurisprudence.’” (See, e.g., People v. Clayburg (2012) 211 Cal.App.4th 86, 91.)”

“The People should not be hoist on their own “plain meaning” petard.”

“In an appropriate case, the letter of the law should gracefully and charitably succumb to the spirit of justice.”

Imma be quoting some of deeeese lines for days.

SVP Commitment reversed for insufficient evidence

24 Oct

Great opinion today from the 2nd Dist. on the sufficiency of the evidence that D suffered from a mental disorder that made him a danger to others by committing future sex crimes.

D’s diagnosis was “hebephilia” which is an interest in pubescent “minors”–neither pre pubescent nor post pubescent people…middle of the ground puberty.  WTF does that mean? Ya, good question. The diagnosis has been omitted from the DSM V because it is sketchy at best.  In this case, the prosecution expert also said he had no idea whether the particular minors D had sexual contact with were pre/post/middle of the ground pubescent because he did not see pictures of them so he had no way to know how developed they were.  Ie did they look like kids? Did they look like grown women? Did they look like teenagers?  The Court said that the expert’s testimony did not amount to substantial evidence that D suffered from this disorder.  This case is great first for the language about sufficiency of the evidence when a verdict/finding of fact relies on expert testimony and the factual basis for reaching the conclusion is not very solid.  (See also People v. Bassett).

This case is even better for because there is a really good footnote about the admissibility of evidence related to conditions omitted from the DSM V.  The footnote states that other states have found that the fact that hebephilia has been excluded from the DSM V means that the existence of the disorder not generally accepted within the scientific community and therefore inadmissible under Frye.  INTERESTING.  None of the parties had raised that issue below.  The Court did say that a disorder need not be part of the DSM V to qualify as an SVP disorder. But, still, I think the footnote is an invitation to argue that any disorder not recognized by the DSM V is not accepted in the scientific community and evidence related to it must be excluded.  On the flip side, the footnote could be used against us in the future if we want to raise some kind of mental health defense that relies on some kind of disorder not recognized by the DSM.

Oh, the good ole days. 1800s case law.

12 Oct

Came across this gem today while researching something totally unrelated. As someone who REGULARLY has typos in her work, I almost feel bad for the DA (but not really): conviction reversed because the DA wrote “larcey” instead of “larceny” in the charging document. The California Supreme Court aptly noted: “there is no such felony as “larcey” know to our law.” Because it is short, and amusing, here is the opinion in full. Bonus points if you ever raise this issue on appeal.

People v. St. Claire (1880) 56 Cal. 406

By the COURT:

The indictment charges an entry into a stable with intent to commit “larcey.” Burglary is the entering of a house, etc., “with intent to commit grand or petit larceny, or any felony.” (Pen. Code, § 459.) There is no such felony as “larcey” known to our law. “Larcey” is certainly not “larceny,” nor does the maxim, idem sonans, apply.
It is said that the Court must give judgment without regard to the technical errors or defects, or to exceptions which do not affect the substantial rights of the parties. (Pen. Code, § 1258.) But this is more than a departure from an established form; nor is it a case in which facts are averred in the indictment, which sufficiently indicate the sense in which the word purporting to name the crime is employed; but is a failure to describe any offense.
Judgment reversed, and cause remanded for a new trial.

IAC to fail to file a motion to dismiss for pre-charge delay…in a homicide?!

12 Oct

Well this one comes as a shocker! Motions to dismiss for a violation of a speedy trial right by pre-charge delay are generally losers — ESPECIALLY if the issue is a delay in charging a homicide. Am I wrong? Apparently. The Fourth District held today that an attorney was IAC for failing to do so in a case that had a 19-year delay.

Notably, the appellate court held that the delay was entirely justified. But, the delay was highly prejudicial because a key defense witness could not be located at the time of trial.  A few interesting tidbits in this opinion. First, the appellate court ordered an evidentiary hearing on this issue and the trial court made factual findings that the defense witness would not have been credible. The COA declined to defer to those factual findings because the trial court made them without ever having seen the witness testify.

Second, because this was an IAC issue and not an issue on the actual merits of any motion to dismiss, the case can be retried. This is interesting only because the COA went on to address the appropriate remedy and it was kind of nutty. The witness’ exculpatory statements were made to police on a tape recording. The COA held that assuming the witness could not be located for retrial, the appropriate remedy is not a dismissal; it is a retrial where the tapes will be played for the jury. The COA recognized that the statements were hearsay. The hearsay exception that would allow their admission, according to the COA? This is an unusual case and an outright dismissal would be too drastic a remedy so the tapes will be played, hearsay or not. Kinda nutty. Here’s to hoping the DA just gives this guy CTS.

CACJ’s bills passed/signed

4 Oct

Below are all the great CACJ sponsored/cosponsored crim law bills enacted this year (in addition to the bill making it a felony for prosecutors to withhold Brady):

AB 813 (Gonzalez) adds section 1473.7 to the Penal Code to create a vehicle for post-conviction relief in instances of ineffective assistance of counsel that has led to an adverse immigration consequence or where there is new evidence of actual innocence.

SB 1242 (Lara) makes PC 18.5 apply retroactively. In 2014, CACJ’s co-sponsored legislation to protect citizens who have committed low-level misdemeanors from being deported by minimizing the maximum misdemeanor sentence from 365 to 364 days.

SB 1389 (Glazer), requires the electronic recording of custodial interrogations for persons suspected of homicide.

AB 2655 (Weber) amends Penal Code 1305 to prevent the unjust practice of alleged  defendants having to post bail twice due to no fault of their own, giving     them the option of extending their bail for up to 90 days if the DA fails  to file charges.

You can’t prove a drug is a drug by relying on a picture of a pill on a website

30 Sep

Seems like this would be obvious, but apparently not in Contra Costa County. An expert was allowed to testify that various pills were controlled substances when that opinion was based solely on a comparison of the way the pills looked to photographs of controlled substances on a website. COA shut that down. The Court ruled that the website was inadmissible hearsay, and per the new beautiful case on attempts to bootstrap hearsay through expert testimony (P v. Sanchez (2016) 63 Cal. 4th 665), the evidence was not made admissible just because an expert relied on it in reaching her opinion.  There is some good language from out of state cases on the reliability of the internet, but the Court declined to go on and evaluate the reliability of the website or to address broader foundational/hearsay principles related to webpage postings. Still though, another great opinion on bootstrapping hearsay through an expert.

Call Jerry Brown (916) 445-2841 to urge him to sign CACJ bills

28 Sep

Jerry Brown has only two more days to sign two very important bills sponsored/co-sponsored by CACJ. Call his office at 916-445-2841 to urge him to sign the bills into law!

AB 1909, authored by Assemblywoman Patty Lopez, aims to create a felony for prosecuting attorneys who intentionally and in bad faith withhold exculpatory evidence. Last year CACJ-sponsored AB 1328, authored by Assemblywoman Shirley Weber, which added Penal Code 1424.5 to require a court to notify the state bar of a knowing and intentional Brady violation. However, even with this accountability tool, many bad-acting prosecutors fail to follow their constitutional duties and do not face any consequences for these intentional actions.

SB 1052, authored by Senator Ricardo Lara, adds section 625.6 to the Welfare and Institutions Code to require that juveniles have access to legal counsel before waiving their Miranda rights during a custodial interrogation.

Invalid probation condition: curfew for DUI conviction

28 Sep

COA (1st Dist.) held that imposing a curfew as a condition of probation in a DUI case was unreasonable under Lent. I cannot emphasize enough that people should object to probation conditions under the constitution and Lent. It seems unlikely that there are any down sides to objecting to probation conditions. And, probation conditions are a hot issue in the COA and Cal. Supreme Court. Even object to  search clauses where there is no allegation of concealing contraband.  Just because the court orders it everyday and it is on their standard form doesn’t make it right!