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!

Spotted: Jerry Brown sending us some due process

28 Sep

Jerry Brown signed into AB 2298 which affords persons the right to be notified before they are included in the CalGang database and a chance to challenge their inclusion.  Due process is a beautiful thing. So is Jerry Brown’s signature on this bill.

Text of bill: here.

Jerry Brown’s letter re signing it: here (stating “substantive improvements” to the database are “clearly in order.)

failing to pay restitution does not foreclose a finding of satisfactory completion of juvenile probation

20 Sep


Making a Murderer: Brendan Dassey’s Conviction Overturned

12 Aug

JUSTICE. sweet. justice.  Opinion here.

2 death penalty convictions reversed

11 Aug

Sorry for the brief blogging hiatus, which means I have failed to post some very good recent opinions; I will try to update this blog with them.

Today there were two great opinions, two death penalty convictions reversed! Mistakes made: improper removal of juror by the trial court (Cal Sup Ct case) and application of wrong standard of Strickland prejudice by the California Supreme Court (9th Cir. case).


First the reversal from the California Supreme Court.  The Supremes held that judge improperly removed a juror for failing to deliberate.  In some ways this opinion is remarkable because the trial court explicitly discredited the kicked juror’s statements (a finding adopted by the Supremes) and one juror said the kicked juror refused to listen to their points.  It seems the critical issue was that the juror initially deliberated but when they reached an impasse it became difficult for that juror to continue to engage.  Good good law.

The 9th Circuit reveral.  Remarkably, they held the California Supreme Court applied the wrong Strickland standard of prejudice.  Who does that with arguably the most well-known standard of prejudice ever?!  The erroneous standard applied, as described by the 9th Cir., was that there was “substantial” evidence of guilt.  The underlying IAC was the failure to investigate a third party culpability defense and introduce evidence of it.  Sidebar–I think it is interesting that the 9th Cir. pointed out that the trial attorney did not give an opening and did not present a defense case.  It makes me wonder if one should always, at least, give an opening about keeping an open mind and the presumption of innocence to the extent a person can do so without sounding like he is making an argument.

Anyway, kind of shocking that the Supremes made that mistake which was incredibly beneficial to the defendant because it meant the 9th Cir. did not apply the highly deferential AEDPA standard.  To that end, I’m not sure how forcefully this case could be used as precedent for future prejudice arguments where the correct standard was applied.

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).