Newsflash: hunger strike in prison does not equal behavior that can lead to violence or disorder

22 Apr

Another case that makes you go hmmmmm that it had to be appealed.  Yes, petitioner lost custody credits for refusing to eat as part of the SHU hunger strike. The official rule violation? Engaging in behavior that can cause violence, disorder, or endanger the facility, community or other person.

The appellate court did not address the free speech issue but held that a hunger strike does none of these things, therefore the rule violation could not stand.

The prison’s theory of the violation was that the hunger strike is an orchestrated effort to get gang members back in the general population to wreak havoc.  These people should get  the speculators of the year aware.

The rest of the justification was essentially boiled down to: we have to do a lot of extra work to deal with the hunger strike.   I may be projecting, but my read of the COA’s response is essentially: so it sounds like the strikes do not cause disorder because you make sure of that.

“None of these contentions indicate that the facility, outside community or another person was endangered, i.e., put in danger or peril of harm or loss, nor do they indicate that there was a breakdown of order in any aspect of the prison; to the contrary, it is apparent from Navarro’s [prison representative] statements that PBSP authorities were acting within their discretion to make adjustments to workloads and services in order to contend with the hunger strike and work stoppage, and his statements do not indicate that the protest involved any violence or disorderly conduct. Indeed, even assuming for the sake of argument that the disorder prohibited by section 3005(a) did not have to rise to the level of endangering “facility, outside community or another person,” nothing in Navarro’s account of the delays and cancellation of services, and the reallocation of prison personnel, such as to monitor the hunger strikers, suggests prison operations were thrown into disorder.”

It would have been interesting to see the 1st amendment argument, but this creates a lovely bright line rule .


22 Apr


a very justice-y week

21 Apr

Lots of appellate love lately.

(1) I previously blogged about the onslaught of cases holding various seemingly violent crimes are not crimes of violence for purposes of federal enhancements.  US Supreme Court held that its holding in Johnson that one definition of a crime of violence in the Armed Career Criminals Act is vague is retroactive.  Much thanks.

(2) Trial court erred in denying a Pitchess motion–good cause shown where witness testified that a cop coerced his statement inculpating defendant (sidebar, you can be prosecuted for multiple counts of removing human remains from a cemetery even though it was done in one fell swoop).

(3) Prejudicial error in admitting hearsay through expert, although many of the out of court statements were ruled to be admissible because of various hearsay exceptions or because the statements were not prejudicial.

(4) D has right not to testify at MDO proceedings to extend a commitment per Equal Protection Clause because MDO defendants are similarly situated to NGI and SVP defendants, who also have this right.

(5) Reduction of felony prior to misdemeanor under Prop. 47 rendered the offense a misdemeanor for all purposes such that 1-year enhancement under 667.5(b) for prior prison term had to be stricken.

and then today:

(6) special circumstances conviction vacated because trial court’s instruction that the jury could consider mental disability for intent of other offenses, and not dissuading a witness, was prejudicial error, even though defense counsel consented to the instruction because the instruction was erroneous and affected the defendant’s substantial rights.

oh ya…. Supreme Court is considering whether a person can be held criminally liable–i.e. punished–for refusing to take a breath test subsequent to an arrest in a DUI.  The case involves three different state laws with each state setting forth a slew of justifications for the procedure. Great analysis and summary of those arguments on Scotus Blog (same link as above).

Corgi Cruelty–Warning VERY Disturbing

13 Apr

I was informed by a concerned citizen  of the proposed police sanctioned corgi cruelty in Russia: a police agency there intends to “experiment” with using corgis as police dogs because “the dogs’ short legs will help them sniff out bombs and other contraband.”  I am offended in numerous ways including, but not limited, to: (1) corgis being used at the predilections of police; (2) corgis being used as snitches; (3) corgis’ cute stumpy leg feature being exploited for unpaid work; (4) that police think it is appropriate to “experiment” with dogs /corgis in this way; (5) associating corgis with police in anyway; (6) the prospect of a cop corgi; and (7)  putting corgis in harms way.  I can tell you one thing, I wouldn’t have Jane Doe sniffing potential bombs.  THIS IS TERRIBLE, OFFENSIVE, OUTRAGEOUS, ANIMAL CRUELTY and they must be stopped.

cc: Moscow police department (translate via googletranslate)

Dear 9th Circuit, will you marry me?

12 Apr

So in love with the 9th circuit lately.  3 opinions  since October 2015 (boom boom pow) holding that certain offenses are not crimes of violence.  A fourth,  today, adopted a 1st Cir. holding that a robbery, defined as theft accomplished by means of violence, is not, in fact, a crime of violence.  Considering use of a gun in furtherance of a crime of violence has a 25 mandatory minimum (and frankly, how else would you find yourself prosecuted for federal robberies without using a gun), this is HUGE. XOXOX Judges Wilken, Reinhardt x2, and Fisher.

Move to dismiss your 647(f)s under 647(g)

6 Apr

Court of appeal reversed a juvenile drunk in public finding (647(f)) today because the police officer testified that he did not know about 647(g).

647(g) says that a cop “shall” take someone to a “facility, designated pursuant to [s]ection 5170 of the Welfare and Institutions Code, for the 72-hour treatment and evaluation of inebriates” if that person is arrested for 647(f). And, that a person taken there “shall not thereafter be subject to any criminal prosecution . . . based on the facts giving rise to this placement.”  The only caveat to the mandate is that the officer has to be “reasonably able” to take the person to a facility.   Factors to decide whether the cop was reasonably able: “distance to the nearest detoxification facility; availability of bed space at 6 detoxification facility; the arrestee’s disposition and willingness to cooperate; and police department resources to transfer the arrestee to facility.”

I feel like it would not be difficult to win a dismissal under this new case.  Even if your cop knew about 647(g), he’d have to be able to testify that he discerned how far away the detox facility was which is a fact that you can independently verify.  He’d also have to testify about the number of open beds at the facility.  Of course, he could lie and say the facility was full but considering I doubt most cops know about this statute, this is a good motion.

Reversed child molest case for violation of right to cross: 5yo c/w refuses to answer questions

18 Mar

Wow.  5 year old child molest complaining witness refuses to answer over 150 defense questions which the Court of Appeal held to be “substantive.”  Conviction reversed (D sentenced to 15-life.).  Important case on the right to confront and cross witnesses under  novel circumstances, with few cases on point, as noted in the opinion.  And, a shout out to a kind defense attorney.

The Court:

“Here, daughter refused to answer hundreds of questions, of which approximately 150 were substantive. And nothing about her lack of cooperation can be attributed to the trial court, prosecutor, or defense counsel, all of whom took laudable measures to try to make it easier for her to testify. These measures included having daughter testify by closed-circuit television, taking frequent recesses during daughter’s testimony and breaking early, allowing daughter to move about, draw, and eat while testifying, and questioning daughter gently and at length on safe but irrelevant topics. The trial court and defense counsel also both encouraged the prosecutor’s efforts in urging daughter to cooperate, and defense counsel tried to build rapport with daughter rather than to antagonize her.”

On the OJ knife

4 Mar


Apparently a cop was give a knife unearthed by a construction worker that was buried at the OJ estate.  The cop purportedly kept the knife as a trophy and did nothing to have authorities investigate whether it was the murder weapon.  When he finally told another cop to–get this–find out OJ’s case number to add to the frame he intended to use to encase the knife, it is now being analyzed for fingerprints, DNA, etc.  WOW.  Question: can OJ be prosecuted for destruction of evidence? Answer: probably not. Statute of limitations.  But how would concealing the weapon play out in that circumstance? As far as I know the tolling of a statute of limitations to allow for a prosecution to occur after the statute expires applies to fraud.  Is this a crime of fraud?  Is there a Kellet/Double Jeopardy even though the prosecutors were not aware of the location of the knife?  That probably does not save them because given the fact that they did not have the knife they conceivably knew that it had been concealed/destroyed. VERDICT: another NG for OJ.

BREAKING NEWS: SCC Deputies held to answer for murder of Tyree

3 Mar

Per Mercury News Reporter’s live twitter feed.

the good news and the bad news

29 Feb

Great opinion last week.  Terrible opinion last week.

Good news first:

Reversible error to admit coppy “use of force” expert in PC 69 case because it was not the proper subject of expert testimony, cop misstated the law when leaving out certain factors from the Supreme Court case on use of force, and the testimony was only “marginally relevant.”

Bad news:

The Fourth District COA held last week–get this–that Miller does not require a remand to the trial court for consideration of the mitigating factors to decide if an LWOP juvenile sentence is appropriate because 1170(d)(2)(A)(i) allows a juvenile to PETITION for a parole hearing where those factors will be considered.

The Court relied on the 2016 Supreme Court Case Montgomery v. Louisiana which stated: “The procedure Miller prescribes is no different. A hearing where ‘youth and its attendant characteristics’ are considered as sentencing factors is necessary to separate those juveniles who may be sentenced to life without parole from those who may not. [Citation.] The hearing does not replace but rather gives effect to Miller’s substantive holding that life without parole is an excessive sentence for children whose crimes reflect transient immaturity.” (136 S.Ct. 718).  

Here are my problems with this case which I have not thoroughly researched:

(1) is the standard at a parole hearing (assuming the minor gets past the petition for a hearing stage) the same standard that would at a sentencing hearing on juvenile LWOP reconsideration? The Court did not mention this point.

(2) 1170 DOES NOT provide that a juvenile is entitled to a hearing on whether LWOP is appropriate under its enumerated factors; he is entitled only to have his petition for a hearing considered.  Therefore the petition could be denied without any Due Process attendant to a sentencing hearing.  This is an inadequate remedy considering Montgomery explicitly contemplated a hearing, not a chance for a hearing (see quote above).    The COA recognized this point but essentially said a petition for a hearing and a hearing are the same thing because the factors in Graham are considered in the petition.

(3)  1170 puts the burden of persuasion for a hearing on the minor in that the court must find that the assertions in his petition for eligibility are true by a preponderance of the evidence. But, Miller held that a juvenile LWOP sentence is presumptively invalid–putting the burden on the prosecution to prove it is justified. The COA said as long as the burden is on the prosecution the procedure in 1170 is fine, without explaining how 1170 places the burden on the prosecution or stating that the court was effectively amending the statute.  Maybe I’m misinterpreting the statute or holding?

(4) a juvenile is eligible for parole only after 15 years in custody and if denied a new hearing must way 5 more years for another hearing.  If denied again he has to wait 4 more years.  This may or may not be a problem because Miller/Graham does not say when a juvenile is entitled to a hearing and there is not a problem with a juvenile spending 15 years in prison, only with spending life in prison (and even then there is no problem so long as he is found to be incorrigible).  I am somewhat unclear but I think if the is denied after his third petition he cannot apply again:  “… If recall and resentencing is not granted under [the 3rd] petition, the defendant may file another petition after having served 24 years. The final petition may be submitted, and the response to that petition shall be determined, during the 25th year of the defendant’s sentence.”  Is the denial of the first petition all that is required because Miller/Graham only require one consideration of resentencing?  Probably.

In short this is a terrible, ridiculous case.  There are probably many other problems with it that I do not understand.