Most scathing opinion ever?!

28 Nov

A little late blogging this…the COA issued a scathing opinion in the OC snitch scandal case. The AG argued the trial court erred in disqualifying the entire DA’s office from prosecuting the case. Here’s what the COA had to say about that: “On the last page of the Attorney General‟s reply brief it states, ‘The trial court’s order recusing the OCDA from prosecuting Dekraai’s penalty phase trial was a remedy in search of a conflict.’ Nonsense. The court recused the OCDA only after lengthy evidentiary hearings where it heard a steady stream of evidence regarding improper conduct by the prosecution team. To suggest the trial judge prejudged the case is reckless and grossly unfair. These proceedings were a search for the truth. The order is affirmed.” (Italics in original.) published opinion calling your argument nonesense. In italics. AWKWARD.

Long opinion, but a good read to understand the extent of the outrageous misconduct. It seems the DAs were so deep in it they started relying on idiocy as a defense before the trial court “I’m just not that familiar with Massiah.” Glad the trial court and COA shut it down and the level of outrage I have for Kamala Harris in appealing the order as well as staying hands off has reached new heights. She should be investigating the DAs and Sherrif’s office not defending them with arguments that have now been deemed nonsensical as a matter of law.

I’m also mad at her because she just announced her office will step in to defend the cash bail system–something the SF city attorney won’t do.

Here’s hoping the next AG isn’t worse. Although yes I acknowledge she has some progressive criminal justice policies.

Interesting competency procedural issue: conviction reversed

28 Nov

Court of Appeal reversed a conviction today on an issue the defendant did not initially raise on appeal. D claimed there was not sufficient evidence he was competent after the trial court ruled otherwise. The Court of Appeal held that the real issue was whether the trial court erred in ruling on the ultimate issue of competency without first ruling on whether there was evidence of a doubt of competency. If there was, then the court was to proceed to a full blown trial on competency.

The COA said in actuality the trial court held a hearing on the ultimate issue of competency, missing the first step, and the hearing denied D of due process because he wasn’t allowed to present witnesses or prepare to cross the appointed expert.

I don’t want to make light of someone’s mental illness but I will note that the defendant’s delusion seems pretty pretty pretty understandable and I can’t say he’s alone in having it:

“Defendant explained to Dr. Leeb that when he looked at the prosecutor, he saw “this evil darkness, like an attacking vampire. I get so scared I can‟t sit at the table. I‟m jerking all around. I wanted to dive under the table. I won‟t go into the courtroom.”
Dr. Leeb continued, “When [defendant] stated, I see this evil darkness,‟ he shrank down into his chair, his eyes went wide, and you can [sic] see the fear response on his face, and his voice got high and he says [sic]…I‟m not going to go in there,‟ and he went like this with his arms (indicating), in what appeared to be a protective gesture.” Dr. Leeb then demonstrated the “attacking vampire,” as defendant had described how he saw the prosecutor.”

Insufficient evidence of kidnapping for rape. Weakest. Kidnap. Ever.

15 Nov

Wow.  This dude got an LWOP enhancement for kidnapping for rape? REALLY?! What was the “kidnap”?  Moving CW from one room in the apartment to another and he committed the crimes against her in both rooms anyway.  Where is the substantial distance? Where is the prospect of increased harm?  Glad the COA reversed.  Glad this is published.

Prop 64 resentencing

11 Nov

Check out Judge Couzen’s and Justice Bigelow’s memo on Prop. 64 marijuana resentencing (the new CA law which allows for resentencing for mj possession, sales, & transportation convictions, and others).  Memo Here. While there are likely many straightforward cases, there will be some stickier situations (eg what counts as a “prior conviction” that could bring your client into wobbler-land? what can the judge rely on to determine if the case is a transport or sale? Are the DAs going to contest this?).  At least from the memo above, it looks like the trial courts will rely on Prop. 47 and Prop. 36 case law. Contact your local public defender’s office or drug policy alliance for help on complicated issues, they’ve already been invaluable to me and ready to lend help.

Dear DA: No backsies!

10 Nov

Nice Supreme Court decision today: if a DA enters into a plea bargain and D later petitions for resentencing under Prop. 47, the DA is not allowed to take back the original plea bargain.  E.g., here, DA dismissed robbery to allow D to plead to theft.  D’s petition for resentencing under Prop. 47 was to be granted so DA wanted to take back the original plea bargain. The trial court said that’s all good.  The 2nd District said ya, we’s with the trial court.  The Supreme Court said no! No takesy backsies! This is a great result, especially if it will impact Prop. 57 and petitions for resentencing for weed sales.  Lovely.

what tha what? Dismissal of capital murder charges for VINDICTIVE PROSECUTION

28 Oct

Well I’ll be damned, first a reversal for IAC in failing to file a motion to dismiss for pre-charging delay (last week) and now a dismissal of several capital murder charges for vindictive prosecution.  Is good law being revived or is it just me?! (But see yesterday’s terrible opinion on a suppression issue in Lopez [].)

D appealed his death sentence/conviction and conviction was reversed by Cal Supreme Court.  On remand the prosecutor added several counts of capital murder that were previously uncharged.  D argued this was vindictive/punishing him for exercising his right to appeal.  On his side was that the DA’s office was either really stupid or actually ethical and essentially admitted at an evidentiary hearing that they added charges because his conviction was reversed.  Also, there was not a lot of new evidence that would explain why those murders were not originally charged.  The AG argued that really there was no issue with adding new charges for no other reason than that D won his appeal because he was already eligible for the death penalty for the existing charges such that a few more murders didn’t actually punish him.  You can only kill him once, they said.  Good one.  COA rejected this maybe because it’s fucking absurd?!  This opinion is long but important because it really sets forth a number of definitive standards for evaluating vindictive prosecution.  Also, what a win!

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.