How hanging out with the wrong crowd might doom your appeal of your criminal conviction

Don’t be too alarmed at the title of this post. I’m not saying that the Court of Appeal will take the character of your known friends into account when deciding your appeal. I’m referring to convictions arising out allegations that members of a small group participated in a crime together. If there is no direct evidence that a particular defendant did any particular act, might being one of the group on the scene be enough to convict?

That all depends on what the defendant did with the group and what the group did. In In re Kevin F. (People v. Kevin F.), case no. A140445 (1st Dist., August 10, 2015), the court found the evidence supported a robbery conviction despite the absence of any direct evidence that the defendant himself assaulted the victim or took any of his property.

The defendant (referred to as “Minor” in the opinion) was with a group of three or four men that struck up a conversation with the victim on a commuter train and then, while walking with the victim afterwards, jumped him and stole several items after they entered a dark alley. The victim could identify which in the group had grabbed and held him while the others punched, but he could not identify who landed which punches and could not even say with certainty that all of them participated in the assault. He could say only that he believed all of them participated because he was “being punched in different directions.” The victim testified that he heard all of the men speaking but he could not tell who said what. The victim pursued the group as they ran away. When he caught up to them, the man who had held the victim took a threatening posture and told the victim, “I have  a knife,” after which all of the group ran off.  After the assault, the police drove the victim around the neighborhood to see if he recognized anyone. He identified Minor as part of the group that robbed him, but the police found no weapons or any of the victim’s property on Minor.

Now, you might be saying to yourself, how could Minor’s conviction be upheld if nobody testified that he actually took part in the assault or that he took any of the victim’s property? The answer starts with the standard of review as explained by criminal lawyer London Ontario based Phillip Michaels:

“Our review of [Minor’s] substantial evidence claim is governed by the same standard applicable to adult criminal cases. [Citation.] ‘In reviewing the sufficiency of the evidence, we must determine “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” [Citation.]’ [Citation.] ‘ “[O]ur role on appeal is a limited one.” [Citation.] Under the substantial evidence rule, we must presume in support of the judgment the existence of every fact that the trier of fact could reasonably have deduced from the evidence. [Citation.] Thus, if the circumstances reasonably justify the trier of fact’s findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant reversal of the judgment. [Citation.]’ [Citation.]” (In re V.V. (2011) 51 Cal.4th 1020, 1026.) Before the judgment of the trial court can be set aside for insufficiency of the evidence, “it must clearly appear that upon no hypothesis whatever is there sufficient substantial evidence to support it.” (People v. Redmond (1969) 71 Cal.2d 745, 755.) An appellate court may not reevaluate the credibility of witnesses. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)

The “substantial evidence” threshold doesn’t seem real hard to meet, does it? As you might expect, appeals challenging the sufficiency of the evidence to support the conviction are notoriously hard to win.

Here, the court finds there is substantial evidence supporting a conviction, because there is evidence that: Minor was in the group that the victim met on the train; Minor introduced himself to the victim; Minor was still with the group when it got off the train, and waited outside a liquor store while the victim purchased cigarettes; Minor was with the group when it entered the alley with the victim; the victim was punched from several directions and thus “believed” everyone in the group punched him; no one in the group told the others to stop; Minor fled with the group after the robbery. Thus, “[The victim’s] testimony that Minor was with the group before, during and after the attack, along with [his] testimony about the attack itself (i.e., the young men punched him from different directions, and no one left or tried to stop the others), allows a reasonable inference that Minor participated in the attack.”

Alternatively, the court in Surrey, Ontario finds that the evidence is sufficient to establish that Minor aided and abetted  the robbery. Even if the finder of fact did not believe that Minor actually struck the victim or took any of his property, the court finds that it is reasonable to believe that Minor acted as a lookout to facilitate the robbery because he was with the group the entire time and did not state any objection to the assault and robbery.

Now, it might be that Minor did not assault the victim or take any of his property. He might have wanted no part of the assault and robbery, perhaps even been too scared to move or say anything during the crime, and so frightened of being associated with it (or of having to testify against his friends) that he ran off with the group rather than wait around for the police. But such alternate views do not come into play in substantial evidence review. The question is not whether a factfinder could go wither way based on the evidence. The question is whether substantial evidence supports the conviction, even if a reasonable factfinder could go either way.

In short, when any crime is committed in a group — at least, when committed in a small group of 3 to 6 people — it probably won’t matter that there is no direct evidence that a particular defendant did any specific act. So long as there is evidence that the defendant was part of the group and remained with the group before, during and after the crime, and did not object during the crime, the court is likely to find substantial evidence to support the conviction.

Subtle Forgery Distinction

Not all forgery is the same. In People v. Martinez, case no. E042427 (4th Dist.. Apr. 2, 2008), the court of appeal reverses the conviction on one of two forgery counts, notwithstanding two forged signatures, because the signatures appear on the same instrument. Defendant fraudulently induced a homeowner to sign a deed of trust and forged a notary signature on the same deed — two forged signatures, same document. He recorded the deed. Defendant was convicted of two counts of forgery.

The key here is that the defendant was charged with the two counts of forgery under Penal Code section 470, subdivision (d), which provides that:

Every person who, with the intent to defraud, falsely makes, alters, forges, or counterfeits, utters, publishes, passes or attempts or offers to pass, as true and genuine, any of the following items, knowing the same to be false, altered, forged, or counterfeited, is guilty of forgery: any check, bond, bank bill, or note, cashier’s check, traveler’s check, money order, post note, [etc.].

Unlike Section 470, subdivisions (a) or (b), which premise guilt on signing the signature of another or forging the seal or signature of another, subdivision (d) premises guilt on passing a forged instrument. Since there was only one instrument here, there can be a conviction for only one count.

It is worth noting that the court cited 2 cases from the 1800s at the outset of its analysis. When it comes to case law, it isn’t bad just because it’s old!

CALCRIM No. 2302 Survives Appellate Challenge

Revisions to jury instructions are generally supposed to make things easier for juries.  In People v. Montero, case no. C052423 (3d Dist. Oct. 2, 2007), the defendant contended that Judicial Council of California Criminal Jury Instructions (2006-2007), CALCRIM no. 2302, concerning the elements of the crime of possession for sale of a controlled substance, made it just a little too easy for the jury to convict because it allegedly does not require the jury to find that defendant “knowingly exercised control” over the controlled substance and for failing to use the term “dominion and control” in the element of possession.

(PDF download of entire CALCRIM available here.)

Comparing CALCRIM 2302 to the common elements of all drug possession offenses described in Witkin (2 Witkin and Epstein, Cal. Criminal Law (3d ed. 2000) Crimes Against Publivc Peace and Welfare, § 82, p. 592), the court finds CALCRIM 2302 stands up to both challenges raised by defendant.  It satisfies the requirement of knowledge by requiring knowledge of both the fact of possession (the jury must find that the defendant “knew of [the controlled substance’s] presence” and knowledge “of the substance’s nature as a controlled substance.”  Regarding “dominion and control,” the court finds the phrase “redundant and archaic,” notwithstanding its use in many opinions to describe possession.  The phrase “is merely a different way of saying the defendant possessed the substance physically or constructively.”  Thus, it is enough that CALCRIM 2302 instructs the jury that “[a] person does not have to actually hold or touch something to possess it.  It is enough if the person has control over it or the right to control it, either personally or through another person.”

Read also: What you need to know about plea bargains.

1 Hit, 1 Run, No Errors in this Hit-and-Run Case

Courts often wrestle with how many charges may be brought against an accused for a given incident or course of conduct.  Here’s the question the court of appeal faced in People v. Newton, case no. G037968 (4th Dist. Sept. 27, 2007):

The issue before us appears to be one of first impression:  where an accident results in injury to more than one person, and the person causing the accident flees the scene, is there a single violation of section 20001 [hit and run] or are there multiple violations?

The answer seemed pretty obvious to me.  The driver hit once and ran once, regardless of how many people were injured in the collision.  The court agrees, as Supreme Court precedent seems pretty clear:

Wilkoff [v. Superior Court (1985) 38 Cal.3d 345] teaches that “a charge of multiple counts of violating a statute is appropriate only where the actus reus prohibited by the statute—the gravamen of the offense—has been committed more than once.  The act prohibited by section 23153 is the act of driving a vehicle while intoxicated and, when so driving, violating any law relating to the driving of a vehicle. . . .  [T]he number of times the act is committed determines the number of times the statute is violated . . . .”

But the question is actually a little more difficult than that.  Because the statute requires a driver involved in an accident to stop and render assistance to “any person injured in the accident,” the prosecution argued that the statute contemplates more than one violation of the statute when more than one person is injured.  The court practically notes that this argument leads to absurdity:

Were we to follow the prosecution’s interpretation of Bailey to its logical conclusion there would be even more counts than the four it urges:  defendant allegedly failed to (1) stop, (2) identify himself, (3) render aid to one victim, (4) render aid to a second victim, (5) render aid to a third victim, and (6) render aid to a fourth victim.  Even the prosecution does not parse the statute so as to enable it to charge defendant with six separate crimes.

So the defense wins on 1 hit, 1 run, and no errors.  Now it’s back to the trial court to play ball.

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When is a Probation Officer a Judge? When You Lie to Him.

Opinions from the Ninth Circuit are often summed up pretty well in the first paragraph.  Yesterday’s decision in United States v. Horvath, case no. 06-30447 (July 10, 2007) is a case in point:

Any person who knowingly and willfully makes a materially false statement to the federal government is subject to criminal liability under 18 U.S.C. § 1001(a).  Congress chose to exempt from liability, however, false statements submitted to a judge by a party to a judicial proceding.  18 U.S.C. § 1001(b).  We must decide whether the exception in § 1001(b) for “statements . . . submitted by [a] party . . . to a judge” encompasses a false statement submitted to the judge in a presentence report (“PSR”), when the defendant in a criminal proceeding made the false statement to the probation officer during the defendant’s presentence interview, rather than to the judge directly.  We hold that when, but only when, the probation officer is required by law to include such a statement in the PSR and to  submit the PSR to the judge, the statement falls within the exception in § 1001(b).  We therefore reverse the district court’s denial of Defendant’s motion to dismiss the indictment.

What was the lie?  The Defendant told the probation officer that he had been in the U.S. Marine Corps from 1986 to 1991, achieved the rank of Sergeant (E-5), and was awarded the Purple Heart during service in Panama.

As someone who really was in the Marine Corps (1982-1987), this makes me a little mad.  If I had been a noncommissioned officer instead of an officer, I’d be even madder.  (You know the line from movies even if you weren’t in the service: “I’m not an officer.  I work for a living.”)  If I had received a Purple Heart for wounds . . . well, madder yet.

On the bright side, the decision recognizes that lying about military service is a material misrepresentation  in this context.  The defendant just isn’t criminally liable in this case despite the materiality of the misrepresentation.

Other blog coverage of the case:

Professor Shaun Martin has some kind words at California Appellate Report for the respectful tone of the dissent.  So does Brian McDonough at Legal Pad, who also provides a more detailed and somewhat humorous analysis.

Howard Bashman at How Appealing notes one of the main points of the dissent.

UPDATE (7/12/07): Ninth Circuit Blog has a take on the case.

California Supremes Split on when Solicitation to Murder Becomes Attempt

Well, it’s not much of a split. It’s a 6-1 decision with Justice Werdegar dissenting.

The California Supreme Court holds in People v. Superior Court (Decker), case no. S130489 (May 21, 2007), that a defendant who hired an undercover detective as a “hit man,” made a down payment, provided the hit man all of the details necessary for him to carry out the killing — including descriptions of the intended victim and her home, car, workplace, and daily routine — and then stated his unequivocal wish that the hit man follow through with the killing, can be charged with attempted murder.

The court is forced to draw the line in this case between solicitation and attempt, and it’s not an easy thing to do. Both the majority opinion and Justice Werdegar’s dissent are persuasively written.

Professor Martin has this post about the case at California Appellate Report, in which he writes:

But, according to the majority, what does it take for an “attempt”? Not much. Basically, just the tiniest thing. Just add a tiny little bit of movement (e.g., a downpayment) to a solicitation and, boom, you’ve got an attempt.

I’d say that’s a little unkind to the majority. Even though the majority does rely heavily on the “slight-acts rule,” the opinion makes clear that neither making the down payment nor any other act in addition to solicitation will necessarily suffice as an “attempt.” Key to the majority seems to be the notion that Decker had set all of the wheels in motion such that without interference, the crime would be completed with no further participation from him:

In finding the record sufficient to hold Decker to answer to the charges of attempted murder here, we do not decide whether an agreement to kill followed by a downpayment is always sufficient to support a charge of attempted murder. Whether acts done in contemplation of the commission of a crime are merely preparatory or whether they are instead sufficiently close to the consummation of the crime is a question of degree and depends upon the facts and circumstances of a particular case. A different situation may exist, for example, when the assassin has been hired and paid but the victims have not yet been identified. In this case, however, Decker had effectively done all that he needed to do to ensure that Donna and her friend were executed. (Emphasis added, citations omitted.)

But I agree with Professor Martin that the case is a “good review of the elements of solicitation and attempt.”

Jusice Werdegar’s dissent intrigues by raising, but not reaching a conclusion, on the issue of whether Decker actually did everything necessary for the crime to be committed in light of the fact that the undercover detective posing as the hit man had no intention of carrying out the crime.

A Chemistry Lesson Resolves an Issue of First Impression in a Drug Case

In U.S. v. Hollis, case no. 05-30611 (May 7, 2007), the Ninth Circuit holds that under the rule announced in Apprendi v. New Jersey, 530 U.S. 466 (2000), under which “any fact [other than the fact of a prior conviction] that increases the penalty for a crime beyond the statutory maximum must be submitted to a jury, and proven beyond a reasonable doubt,” a defendant charged with distribution of a controlled substance (21 U.S.C. § 841(a)) cannot be subject to the higher sentencing standard for distribution of a “cocaine base” with a prior felony drug conviction (21 U.S.C. § 841(b)(1)(A)) unless the government pleads and proves that the cocaine base in issue is “crack” cocaine.  Citing earlier opinions for facts about the manufacture of cocaine powder and cocaine base, the court concludes that the two are “chemically identical,” and thus the term “cocaine base” in 21 U.S.C. § 841(b)(1)(A)(iii)) must mean “crack” in order to distinguish it from powder cocaine.  Nonetheless, the court upholds the conviction because the error was harmless in light of “overwhelming and uncontradicted evidence at trial that the substance Hollis distributed was crack.”

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California Court Upholds Deadly Weapon Sentencing Enhancement for Animal Cruelty Conviction

Division Four of the Second District Court of Appeal has just upheld a deadly weapon sentencing enhancement under Penal Code section 12022(b)(1) for a conviction of animal cruelty under Penal Code section 597(a). The court rejected the defendant’s contention that a deadly weapon enhancement could only apply to crimes against humans. Animal cruelty under section 597(a) is a felony, and section 12022(b)(1) only requires that the deadly or dangerous weapon have been used “in the commission of a felony or attempted felony.” In this matter of statutory construction, the court stated that “If we were to follow appellant’s interpretation, we would be required to insert the words ‘against a person’ into the statute,” effectively re-writing the statute. People v. Smith, 2nd Dist. case no. B189383 (April 24, 2007).

Ninth Circuit: Prior Conviction of Any Age May be Used to Enhance Sentence for Illegal Entry

Joining the Tenth and Eleventh Circuits, the Ninth Circuit holds that there is no limit on the age of convictions that may be used under section 2L.1.2 of the 2003 Sentencing Guidelines to enhance a sentence on a conviction for entering or remaining in the United States illegally. The defendant in this case was apprehended in 2003 and the trial court correctly considered convictions from 1972 and 1976. The case is United States v. Olmos-Esparza, Ninth Circuit case no. 06-50276 (April 24, 2007).

UPDATE: Jon Sands at Ninth Circuit Blog gives his detailed take on the case here.

CORRECTION: The author at Ninth Circuit Blog is Steve Kalar, posting here.