Category Archives: Criminal Procedure

January 13, 2010

Ineffective assistance of counsel in advising waiver of right to claim ineffective assistance of counsel

When a plea agreement includes a waiver of rights to appeal, claim ineffective assistance of counsel, and to move to withdraw the plea, can it logically be enforced to preclude a claim of ineffective assistance of counsel in the advice to enter into the agreement? Last week, in People v. Orozco, case no. F056712, (5th Dist. Ja. 8, 2010), the court of appeal joins several federal courts in reaching the only sensible answer: of course not.

To hold such a waiver enforceable “would deprive a defendant of the ‘opportunity to assert his Sixth Amendment right to counsel where he had accepted the waiver in reliance on delinquent representation.’ ” [Citation.]

We agree with the federal authorities and find justice dictates that a claim of ineffective assistance of counsel in connection with the making of the waiver agreement cannot be barred by the agreement that is the product of the alleged ineffectiveness.

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Posted in: Plea Bargains, Uncategorized

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January 4, 2010

When the Attorney General agrees with you

Respondents sometimes must concede minor points along the way while arguing that such points do not require reversal. But seldom does one see the respondent agree that a judgment is even partially reversible.

One is more likely to see it in a criminal appeal than in a civil appeal, especially when the criminal appeal involves errors in sentencing, as in People v. Frausto, case no. B212054 (2d Dist. Dec. 28, 2009), where the attorney general agreed that the trial court erred in imposing three cumulative 5-year sentencing enhancements under Penal Code section 667, subdivision (a)(1) for each of three prior serious felony convictions tried in a single proceeding and that the defendant had been awarded only 464 of the 466 days of presentence custody credits to which he was entitled. (Not that it did the defendant much good. The 2 extra days of presentence custody credits — 2 days — were applied against  a sentence of 214 years to life. Since the three 5-year enhancements were added consecutively to that sentence, the 10-year reduction in enhancements was likewise not much comfort to the defendant.)

The first (and, so far, only) time I got a brief from the attorney general agreeing with my position, I was stunned. I noticed it when I skimmed through the headings of the respondent’s brief, and thought to myself, “Must be a typo. They left out the word ‘not.’” Even when I read the argument under the heading, I had to read it three times just to make sure that I was reading it correctly!

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Posted in: Decision on Appeal, Sentencing

July 7, 2008

Patrol Cars are Traffic, Too

Federal Protective Service vehicle.Image via Wikipedia

In People v. Logsdon, case no. G038366 (4th Dist. May 28, 2008, ordered published June 24, 2008), the defendant contended that the officer following him on an otherwise nearly deserted street in the middle of the night lacked cause to stop his vehicle after defendant crossed several lanes of traffic without signaling. Defendant contended that in the absence of other traffic, his unsignaled lane change was a safe move.

He forgot about the patrol car following him! The court holds that the officer who made the stop constituted traffic that needed warning of the lane change.

There’s an interesting angle to this case from an appellate perspective and from a writing perspective.

Writing first. When the defendant claimed that the patrol car was too far away to be affected by the unsignaled lane change — as evidenced by the fact that the officer neither braked nor swerved — the court discounted thre argument with an unintentionally (?) funny choice of words to explain that the defendant’s lane change did not actually have to alter the patrol car’s course to be unsafe (emphasis added): “Actual impact is not required by the statute; potential effect triggers the signal requirement.” Glad to know a collision isn’t required.

Next, the appellate angle. The trial court found that defendant’s lane change affected a car traveling about 100 feet behind him (apparently referring to the patrol car) and decided not to disturb the ruling without resolving the issue of whether it was a factual finding or a discretionary one (emphasis in original):

The trial court found that a vehicle within 100 feet of Logdon’s car, traveling in the same lane and at the same speed, was affected by the lane change. Moreover, the Legislature has declared its opinion that vehicle signals are needed within 100 feet of any turn. (See Veh. Code, § 22108.) Whether this finding is a discretionary finding or a finding of fact, we must accept this one. Factual findings are to be accepted if substantial evidence can be found in the record to support them [citation], and discretionary rulings must be upheld unless an abuse of that discretion is shown. (See People v. Bishop (1993) 14 Cal.App.4th 203, 212-213 [abuse-of-discretion standard appropriate when lower court “is in the best position to determine the genuineness and effectiveness of the showing . . . .”].) Under either standard, we must accept this finding.

Before you do battle over the nature of a finding and thus the applicable standard of review, make sure the distinction makes a difference.

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Posted in: Appellate Procedure, Criminal Procedure, Legal Writing, Standard of Review

June 16, 2008

Court has No Duty During Recommitment Proceedings to Consider Suitability for Outpatient Treatment

In People v. Rish, case no. B198727 (2d Dist. June 16, 2008), Rish appealed from from an order recommitting him to the California Department of Mental Health for treatment as a mentally disordered offender pursuant to Penal Code section 2972.  He claimed that the trial court erred by failing to consider whether he was suitable for outpatient treatment, even though he did not raise this alternative in the trial court.

The Court of Appeal determines that Rish waived the issue by failing to raise it.  As a matter of statutory construction, Section 2972, subdivision (d) does not impose a duty on the court to evaluate suitability for outpatient treatment sua sponte.

The court reached the issue even though it had been mooted by the trial court’s entry of a subsequent order extending Rish’s commitment for an additional one-year term and setting a hearing to address his suitability for outpatient treatment.  It found the issue “capable of repetition, yet evading review” because commitment petitions must be filed on an annual basis, making it likely the trial court would decide a new petition prior to appellate review of the prior sustained petition. 

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Posted in: Appellate Procedure, Criminal Procedure, Standing to Appeal, Waiver of Issues

June 5, 2008

Waiver of Appeal Rights in Plea Agreements

Plea agreements often waive the right to appeal, but they aren’t always what they seem, especially when it comes to how they define the scope of the waiver. For a lesson in how to determine whether a defendant has waived the right to bring a particular appeal, check out United States v. Cope, case no. 06-50441 (9th Cir. June 4, 2008).

Cope pled guilty to a single count of possession of child pornography and was sentenced to 120 months imprisonment and lifetime supervised release. His plea agreement stated that he waived appeal of his sentence so long as it met three criteria. On appeal, he challenged the length of his supervised release

The court walks you right through the steps, applying these rules:

  • The waiver of a statutory right to appeal is reviewed de novo.
  • A knowing and voluntary waiver of statutory rights to appeal a sentence is valid.
  • The scope of a waiver in a plea agreement is subject to the same rules of interpretation as used for any other contract (at least, “for the most part”).
  • Any ambiguity will be construed against the drafter (usually, the government).

It’s the last of these that allows Cope to reach the merits of his challenge to the length of his supervised release.  Because part of the language defining the scope of Cope’s waiver – which waived appeal of any sentence “within or below the range corresponding to the determined total offense level and criminal history category” – defines a non-appealable sentence in terms of criteria that apply only to the term of imprisonment, and not to the term of the supervised release, the court finds the provision ambiguous and construes it against the government:

As drafted, however, this provision cannot sensibly be applied to a term of supervised release. Under the Sentencing Guidelines, the offense level and criminal history category do not control the term of supervised release, as they do the term of imprisonment. Rather, the type of offense determines the length of the Guidelines range for the term of supervised release. See U.S.S.G. § 5D1.2(a) (Nov. 2002) (specifying supervised release range for Class C felonies); 18 U.S.C. § 3559(a)(3) (Class C felony defined as a crime with a maximum term of imprisonment between 10 and 25 years); 18 U.S.C. § 2252A(b)(2) (2003) (maximum term for Cope’s crime is 20 years). This ambiguity in the waiver provision makes it impossible for us to determine whether the prerequisites for waiver have been met with regard to Cope’s term of supervised release. Because we “steadfastly” apply the rule that “any lack of clarity” in a plea agreement should be construed against the government as drafter, [citation], we hold that this ambiguity in the waiver provision permits Cope to appeal the length of his term of supervised release.

It does Cope little good in the end, however.  While the court entertains his appeal, it affirms the lifetime supervised release.

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Posted in: Appellate Jurisdiction, Appellate Procedure, Criminal Procedure, Federal Procedure, Plea Bargains, Sentencing, Waiver of Issues

April 23, 2008

Ninth Circuit Amends Garcia on Appellate Jurisdiction

According to Ninth Circuit Blog, the Ninth Circuit “came to its jurisdictional senses” with its amended opinion in U.S. v. Garcia, case no. 05-30356 (9th Cir. Nov. 19, 2007, amended Apr. 17, 2008). While I might have said that a little more gently, I agree with the sentiment.

I covered the relevant holding regarding appellate jurisdiction in my original coverage:

The two defendants challenging their sentences in this case claimed that the trial court erred even though the sentences imposed were within the ranges stipulated in their respective plea agreements made under Federal Rule of Criminal Procedure 11(c)(1)(C). Both defendants contended that the trial court’s miscalculation under the sentencing guidelines and its failure to consider all section 3553 factors led it to impose higher sentences than it otherwise should have, and thus the sentences, even though they were within the ranges stipulated in the plea agreements, were “in violation of law,” which would make them appealable under Title 18 United States Code section 3742(a)(1).

The Ninth disagrees, holding that even if the trial court miscalculated the guidelines or erred in applying section 3553, section 3742 does not confer appellate jurisdiction over an appeal from a sentence that is within the range stipulated in a Rule 11 plea agreement. The court points out that the agreements permitted the trial court “full discretion to impose a sentence” within the stipulated range, and thus the defendants received the benefit of their bargains regardless of where in that range they were sentenced.

The Ninth has previously held that a sentence within the statutory guidelines may be reviewed if it is challenged as “unreasonable” under application of section 3553 factors. However, the court refuses to apply the same rule to sentences within the stipulated guidelines of a plea agreement, effectively holding that section 3553 does not apply to stipulated sentencing ranges, at least where the plea agreement does not explicitly require it.

The amended opinion holds that the court has jurisdiction to hear the appeal because a Rule 11 plea in itself deprive the court of appeals of jurisdiction and the defendants did not explicitly waive their appeal rights in their plea agreements.

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Posted in: Appellate Jurisdiction, Appellate Procedure, Federal Procedure, Sentencing

March 12, 2008

Thorough Confusion Deprives Defendant of Right to Counsel

Confusion abounds lately. On the heels of my last post about a “hopelessly ambiguous” jury verdict comes a decision requiring reversal because the proceedings left the parties and trial court so “throughly confused” that the defendant was deprived of his right to counsel: People v. Earp, case no. B201309 (2d Dist. Mar 11, 2008).

The trouble began when Earp tried to withdraw his no contest plea to possession of methamphetamine for sale. The trouble requiring reversal, that is. The real trouble started while Earp was released pending sentencing. He violated three conditions of his probation (from another offense) and then failed to appear for sentencing. He was arrested and convicted of another drug offense in a neighboring county, then finally appeared for sentencing on his meth charge, where he announced he wanted to withdraw his plea.

The court’s recitation of the dialogue at the sentencing would be comical if it didn’t concern such a serious issue. The court couldn’t get a straight answer out of the defendant regarding the basis for withdrawal, the defendant’s new deputy pubic defender kept going back and forth on whether she intended to file a motion to withdraw the plea and whether she had a conflict, the trial court appointed the alternate public defender because it found a conflict, then resumed the hearing without the alternate public defender present, heard the relieved deputy public defender on behalf of the defendant, then vacated its order appointing the alternate public defender.

As one sign of the confusion this created, consider the attorney general’s motion to dismiss the appeal on the ground that appeal from an order denying a motion to withdraw a plea requires a certificate of probable cause, which the defendant had not obtained. The motion is denied because the appeal is not from an order denying a motion to withdraw the plea; it is based on being deprived of effective assistance of counsel , which prevented the defendant’s motion from even being made. If there’ s disagreement over whether a motion was even made, that is definitely a thoroughly confusing state of affairs.

The court reverses, agreeing that the post-plea events deprived Earp of his right to counsel. The court erred by hearing the deputy public defender on defendant’s behalf after the court had already relieved her and appointed alternate counsel, and in proceeding after making that appointment without the newly appointed counsel present.

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Posted in: Constitutional Law, Criminal Procedure, Right to Counsel

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March 10, 2008

A Simple “Yes” or “No” Will Do, Thank You

As soon as I glanced at United States v. Rodriguez, case no. 07-10217 (9th Cir. Mar. 10, 2008) today and realized I would have to defer drafting a blog post until later, I had a pretty good idea I was going to be preempted, and I was pretty sure by whom. Sure enough, California Appellate Report and Decision of the Day both have excellent posts on the case, so I’ll just briefly explain the case and then use my fellow bloggers’ posts as starting points for my discussion.

The issue is this: if a person in custody gives an ambiguous response when asked if he waives his Miranda rights, is the officer required to get clarification or is he free to begin questioning? The trial court held the latter, relying on Davis v. United States (1994) 512 U.S. 452. In Davis, the defendant had waived his Miranda rights, then later ambiguously invoked his right to counsel, and the Supreme Court held that this did not require the officer to cease questioning to get clarification of the defendant’s intent.

The Ninth reverses the conviction in Rodriguez, holding that in Davis, the ambiguity concerned the invocation of the rights to silence and counsel after an unambiguous waiver of the same. Since Rodriguez never unambiguously waived his rights, but instead gave an ambiguous response the first time he was asked if he waived his rights, the Ninth holds that the officer was required to get clarification.

As California Appellate Report points out, the court subtly but purposefully noted that Davis was a 5-4 decision, implying it has weaker precedential value because of that. It’s a shame the court did so. I think the court’s analysis of Davis stands on its own; there was simply no need to imply that the decision was weak precedent.

Decision of the Day’s post discusses the case with reference to the recent habeas decision in the Ninth that reached the unstartling conclusion (though it took en banc review to do so!) that “I plead the Fifth” is an unambiguous invocation of the right against self-incrimination. DoD wonders out loud if the court is “overcorrecting” for the erroneous panel decision in that case, but I think not. Again, the analysis seems spot-on to me; the court doesn’t seem to be stretching at all. Even though, as DoD notes, two other circuits have found that Davis applies to the initial waiver of Miranda rights, the Ninth points out that neither court even noted the post-waiver factual scenario in Davis.

Will this circuit split end up in SCOTUS?

(UPDATE 3/12/08):   Appellate Review weighs in, taking pains to point out that “this decision is not a product of the ‘Ninth Circus.’”

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Posted in: Criminal Procedure, Fifth Amendment - Self-Incrimination

February 27, 2008

Be Careful with those Plea Agreements

Be very, very careful with the language of your plea agreement. After all, it’s a contract, and deserves the same careful consideration before entering into it.

You might live to regret it, even if it takes 20 years for it to catch up with you, as happened to the defendant in People v. Paredes, case no. D050150 (4th Dist. Feb. 26, 2008). Paredes, a legally resident alien, pleaded guilty to voluntary manslaughter in 1987 in part because the prosecutor agreed to a “JRAD” — a judicial recommendation against deportation — that, under 1987 federal law, precluded the government from removing him from the country on the basis of the conviction. He received probation conditioned on serving 365 days in jail.

Flash forward roughly 17 years, to when Paredes applies for citizenship and, in response to this act of patriotism, has removal proceedings initiated against him by the Department of Homeland Security. The removal proceedings are instigated because federal law had since changed to make his conviction a basis for removal notwithstanding the JRAD. Perhaps the worst part: had he been sentenced to just one day less in jail, the conviction would not have subjected him to removal.

After running through a mill of immigration proceedings, Paredes sought relief in superior court. He sought to vacate his conviction, withdraw his guilty plea and enter a plea of not guilty or, alternatively to “enforce” the plea agreement, which he contended contained a “no deportation” promise.

The superior court granted relief by vacating the 20-year-old judgment and entering a new judgment nunc pro tunc that included a sentence of only 364 days in order to avoid a “miscarriage of justice” in light of the facts that Paredes relied on protection from deportation, neither party contemplated the change in federal law and, had they done so, would have agreed to a 364-day jail term as a condition of probation, and its finding that the plea agreement included a “promise of no deportation, embodied in the JRAD.”

The court of appeal reverses, finding no breach of the plea agreement and relying on precedent that so long as the defendant is adequately advised (as Paredes was) that his conviction may have immigration consequences, including deportation, later changes in immigration law do not warrant modification of the judgment.

I’m only disappointed in the result because it kept the court from reaching some interesting issues regarding judgment and jurisdiction. Specifically, whether judgment could be entered nunc pro tunc under the circumstances and whether the court acted in excess of its jurisdiction by modifying the terms of probation after probation was complete.

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Posted in: Criminal Procedure, Immigration, Judgment, Sentencing

February 22, 2008

Parolee May Get Private Counseling without Waiving Privilege

Where parole is conditioned on the parolee receiving psycotherapy (in this case, because of the sexual nature of the offense), and the parolee retains a private therapist in addition to using state-provided therapy, is the parolee required to waive the psychotherapist-patient privilege regarding the private therapist in order to remain on parole? The state in In re Corona, case no. B197023 (2d Dist. Feb. 20, 2008) insisted that the parolee must waive the privilege. The Court of Appeal says otherwise.

The court found that Corona should be commended, rather than threatened, for seeking additional therapy, at least absent the state’s ability to identify a “nefarious reason” that he did so. Requiring waiver of the privilege would be an unreasonable parole condition.

Nor is waiver needed to prevent Corona from unknowingly posing a threat to others, the court reasons, because the psychotherapist is already obligated to disclose such a threat under Tarasoff v. Regents of the University of California.

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Posted in: California Procedure, Criminal Procedure, Parole

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January 9, 2008

Challenge to Post-Plea Sentencing Procedure does not Require Certificate of Probable Cause

After being found mentally competent to stand trial, Rodney Oglesby pleaded guilty to committing domestic violence, aggravated assault and — worst of all, or at least co-equal with his other crimes, at least according to PETA — killing a kitten.  The competency finding was based, per the stipulation of the parties, on just one of the psychiatric reports.  The other psychiatrist opined he was incompetent.

Oglesby fought his court-appointed attorney every step of the way.  He asked for, and was denied, new counsel, then accepted a plea deal offered by the People, in which his lawyer refused to join.  In fact, his lawyer insisted that Oglesby was not competent.  He reminded the court that the second psychiatric report had found him incompetent and that Oglesby’s stipulation to use only the psychiatrist report finding him competent was “a tactical decision at the time . . . because we felt that . . . Oglesby needed to proceed back to trial.”  The court declined to reconsider competence and imposed sentence per the plea agreement.

Oglesby appealed in People v. Oglesby, case no. G037796 (4th Dist. Jan. 7, 2008), claiming that the trial court erred by failing to reevaluate his competence before imposing sentence.  The state argued that the issue was barred on appeal under Penal Code section 1237.5, which requires an appellant to obtain a certificate of probable cause when appealing “from a judgment of conviction” after a guilty plea, because the trial court refused to issue the certificate.

The court neatly sums up the competing arguments and its conclusion at the outset of its discussion:

The People assert Oglesby’s failure to obtain a certificate of probable cause bars this issue on appeal. They assert any challenge to a stipulated sentence implicates the validity of the plea and requires a certificate. Oglesby contends he is not challenging the sentence, but rather the sentencing procedure. He argues the court should have suspended sentencing to inquire into his competence, but did not. We conclude this is a distinction that makes a difference. No certificate was required.

The key for the court is that the appeal raises a post-plea question over whether the court should have held a new competence hearing before sentencing and he was not appealing the conviction or sentence itself.

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Posted in: Appellate Jurisdiction, Appellate Procedure, California Procedure, Criminal Procedure

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January 8, 2008

A Philosophical Link between Golf and Sentencing Reform

Who’d have thought?  But the Sentencing Law and Policy blog spots the link in the 2008 revisions to the Rules of Golf.  Hint (especially for you non-golfers): the Rules of Golf can be hard to understand and are chock full of penalties for various infractions.

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Posted in: Blogging, Sentencing

December 6, 2007

Double Jeopardy Argument Not Waived by Failure to Object to Multiplicitous Convictions and Sentences

In U.S. v. Zalapa, case no. 06-50487 (9th Cir. Dec. 5, 2007), the Ninth Circuit holds that a defendant can raise a double jeopardy challenge to his multiplicitous convictions and sentences on appeal even if he fails to object to them in the district court.

Zapala was charged with two counts — possession of an unregistered machine gun and possession of an unregistered firearm with a barrel less than 16 inches long — under the same statute, 26 U.S.C. § 5861(d). Catch is, those counts were based on possession of the same gun.

Zapala did not object to the indictment, pleaded guilty to all charges without a plea agreement, and did not object to convictions or sentences when they were entered by the district court. Until his appeal, that is, when he claimed the convictions on multiple counts under the same statute for possession of the same gun constituted double jeopardy.

The court finds the convictions and sentences are multiplicitous because under § 5861(d), Congress intended each firearm to be a “unit of prosecution.” In fact, the court has previously found that Congress intended only a single offense per possessed firearm even if it violated all 12 subsections of § 5861.

The court finds that a double jeopardy challenge is not waived by failure to object to convictions and sentences. Under existing Ninth Circuit precedent, a defendant does not waive a double jeopardy challenge by failing to object to mulitplicitous charges in an indictment before pleading guilty. A motion to dismiss the multiplicitous counts prior to sentencing is enough. Further, the Supreme Court has held that a district court has no duty to resolve multiplicitous charges until the jury returns a guilty verdict on them.

The challenge is governed by “plain error” review, under which the court readily reverses because the error is obvious, affects Zapala’s substantial rights, and affects “the fairness, integrity, or public reputation of judicial proceedings.” His substantial rights are affected even though the sentences are concurrent (and thus should not affect his length of imprisonment) because conviction on multiple charges carrries other collateral consequences, including increased monetary liability (a $100 mandatory special assessment on each conviction), possible enhanced sentencing in the future under recidivism statutes, and even consequences “that [the court] cannot foretell at the time of decision.”

The court’s rationale regarding the effect on Zapala’s substantial rights mirrors those in a recent California case. The issue deserves its own blog post, which I’ll get to later.

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Posted in: Appellate Procedure, Constitutional Law, Criminal Procedure, Double Jeopardy, Standard of Review, Waiver of Issues

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November 30, 2007

“Confronting Confrontation”

Monkey at TypewriterThat’s the title given by the Los Angeles Daily Journal to my article, which it published in its November 19, 2007 issue, regarding U.S. v. Larson, the en banc Ninth Circuit’s confusing “resolution” of the perceived split of authority on the standard of review in Confrontation Clause challenges based on limitations on cross-examination. The article (PDF link) grew out of this blog post giving my initial impressions about the case on the day it was published. I followed up that post with another providing links to some other blog coverage of the case.

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Posted in: Appellate Procedure, Articles by Greg May, Confrontation Clause, Constitutional Law, Criminal Procedure, Federal Procedure, Standard of Review

November 26, 2007

Is a Sentence within the Range Stipulated in a Plea Agreement Appealable?

UPDATE (4/23/08): The holding described in this post was changed by the court’s amended opinion of April 17, 2008).  See my coverage.

The Ninth Circuit rejects such a challenge in U.S. v. Garcia, case no. 05-30356 (9th Cir. Nov. 19, 2007), at least where the plea agreement was not contingent on the sentencing guidelines and the only error asserted was a miscalculation of the guidelines or failure to properly consider the factors in Title 18 United States Code section 3553.

The two defendants challenging their sentences in this case claimed that the trial court erred even though the sentences imposed were within the ranges stipulated in their respective plea agreements made under Federal Rule of Criminal Procedure 11(c)(1)(C). Both defendants contended that the trial court’s miscalculation under the sentencing guidelines and its failure to consider all section 3553 factors led it to impose higher sentences than it otherwise should have, and thus the sentences, even though they were within the ranges stipulated in the plea agreements, were “in violation of law,” which would make them appealable under Title 18 United States Code section 3742(a)(1).

The Ninth disagrees, holding that even if the trial court miscalculated the guidelines or erred in applying section 3553, section 3742 does not confer appellate jurisdiction over an appeal from a sentence that is within the range stipulated in a Rule 11 plea agreement. The court points out that the agreements permitted the trial court “full discretion to impose a sentence” within the stipulated range, and thus the defendants received the benefit of their bargains regardless of where in that range they were sentenced.

The Ninth has previously held that a sentence within the statutory guidelines may be reviewed if it is challenged as “unreasonable” under application of section 3553 factors. However, the court refuses to apply the same rule to sentences within the stipulated guidelines of a plea agreement, effectively holding that section 3553 does not apply to stipulated sentencing ranges, at least where the plea agreement does not explicitly require it.

Garcia leaves open the possibility of getting around its holding with a properly crafted plea agreement. If the plea agreement makes a properly calculated guideline or application of section 3553 an explicit condition of the plea, a defendant may be able to appeal a sentence even if it is within the range stipulated in the agreement. The Ninth Circuit Blog post referenced below offers this advice, along with this caution: “Of course, good luck getting another 11(c)(1)(C) deal that doesn’t include explicit appellate waivers.”

The “Case o’ the Week” post at Ninth Circuit Blog starts by discussing Garcia but transitions to a discussion of the “mess” in the Ninth Circuit regarding jurisdiction to hear sentencing appeals and links to a number of helpful posts on other recent decisions on this topic. Follow the links, and by the time you’re done, you will be eagerly awaiting the Ninth’s en banc opinion in U.S. v. Carty.

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Posted in: Appellate Jurisdiction, Appellate Procedure, Federal Procedure, Sentencing

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November 1, 2007

An Arrest Warrant is an Arrest Warrant is an Arrest Warrant

At least, when it comes to whether the police may enter a residence when executing it.

In U.S. v. Gooch, case no. 06-30645 (9th Cir. Nov. 1, 2007), the defendant was convicted of being a felon in possession of a firearm. He was arrested when reaching for firearms during the execution of a warrant for the search of his residence.

He claimed the search warrant was invalid because it was based on police officers’ observation of drug paraphernalia when they entered the residence to execute an arrest warrant for Gooch’s roommate. Gooch contended that because the arrest warrant was only a misdemeanor bench warrant for failure to appear, it did not authorize the police to enter the residence, and thus the observations of drug paraphernalia that were use to justify the search warrant were tainted..

The Ninth rejects the argument. Joining several other circuits, the court says that an arrest warrant of whatever stripe authorizes the police to enter a residence to the extent necessary to execute it so long as they have probable cause to believe the suspect is in the residence.

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Posted in: Constitutional Law, Criminal Procedure, Search & Seizure

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October 29, 2007

John Doe Arrest Warrant Based on DNA Satisfies Statute of Limitations

In People v. Robinson, case no. C044703 (3d Dist. Oct. 26, 2007), the court of appeal holds that a “John Doe” arrest warrant that describes the person to be seized by DNA profile suffices to “commence” a prosecution for purposes of the statute of limitations for a sexual offense.

Penal Code Section 804, subdivision (d) provides that a felony prosecution is “commenced” when “[a]n arrest warrant or bench warrant is issued, provided the warrant names or describes the defendant with the same degree of particularity required for an indictment, information, or complaint.” (Emphasis added.)  The DNA profile in this case satisfies the state and federal constitutional requirements that the warrant describe the person to be seized with particularity. Indeed, notes the court, DNA identification is about the only means of identification not subject to alteration, making it most likely to name a unique individual. (The most favorable odds Robinson had for a second person matching the profile were were 1 in 650 quadrillion – that’s 1 in 650,000,000,000,000,000.)

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Posted in: California Procedure, Criminal Procedure

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October 22, 2007

CALCRIM No. 3450 Survives Appellate Challenge

CALCRIM No. 3450 is a long instruction that that sets forth the defendant’s burden of proof on insanity. Its very length and comprehensiveness appear to be what saves it in People v. Thomas, case no. C052849 (3d Dist. Oct. 22, 2007). The instruction includes this paragraph:

If you conclude that at times the defendant was legally sane and other times the defendant was insane, you must assume that he was legally sane when he committed the crime.

Because virtually every mentally ill person has lucid moments, contended the defendant, this language in the instruction essentially directs a finding of sanity.

According to defendant, the instruction “require[d] [the] jury to find [him] sane even though he might have been insane at the time of the crime if at any other time he was sane.”

The court disagrees and affirms, but not before dispatching a nonsensical argument from the state.

The People counter that the italicized portion of the instruction is legally accurate and informs the jury that if there were times when defendant was legally sane and other times when he was legally insane, “it is assumed that he was legally sane when he committed the crimes.” According to the People, this is because “defendant will not have met the burden of demonstrating it is more likely than not he was legally insane when he committed the crime.”

We fail to follow the People’s logic. If the evidence shows that, in the past, there were times when defendant was sane and other times when he was insane, this does not necessarily mean defendant failed to prove he was insane at the time of the offenses. If defendant’s history contains periods of sanity and periods of insanity, defendant will nevertheless have met his burden if he proves the offenses were committed during one of the periods of insanity.

Getting back to the defendant’s contention, the Court of Appeal finds the allegedly faulty language misleading only if considered in isolation. In the context of the entire instruction, however, it finds the danger of misleading the jury negligible:

As indicated, the thrust of CALCRIM No. 3450 is to inform the jury that the burden is on the defendant to prove he was insane at the time of the offenses. This is consistent with Penal Code section 25, subdivision (b). The instruction states that if the jury determines the defendant had a mental disease or defect at any time before he committed the offenses, the jury may conclude that same condition existed at the time of the offenses. It concludes by stating that, if the jury decides the defendant proved it is more likely than not he was insane at the time of the offenses, the jury must return a verdict of not guilty by reason of insanity. Thus, even if the jury was directed to “assume” the defendant was sane, this assumption is subject to defendant presenting evidence to prove otherwise. An assumption of sanity, like an assumption of innocence, is just another way of saying the burden is on the party claiming otherwise to prove it.

I am troubled by the court’s conclusion because I agree with something it says earlier in the opinion:

[N]o good can come from informing the jury that, once evidence has been presented that the defendant was sane at times and insane at other times, it must assume he was sane at the time of the offenses. This assumption existed before evidence was presented. Thus, there is the risk the jury might read the highlighted portion to mean the assumption is irrebuttable.

“No good can come from” the challenged language. In other words, anything that does come from it is not good, and thus presumably prejudicial. There is a downside to the language but no upside. Why keep it?

UPDATE (10/26/07): It appears that Professor Martin at California Appellate Report agrees.

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Posted in: California Procedure, Criminal Procedure

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October 12, 2007

No Cert for Sentencing Cases

Federal Public Defender Steve Sady has a thoughtful and detailed post at Ninth Circuit Blog on SCOTUS’s denial of certiorari in three important sentencing cases.

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Posted in: Constitutional Law, Federal Procedure, Sentencing

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October 10, 2007

Summary Rejection of Plea Agreement is Error

It’s not often that you see an opinion on a writ petition start with a statement that the trial court erred but the writ is denied. The reason for that sort of introduction in Morgan v. U.S. District Court (D.Ariz.), case no. 07-70201 (9th Cir. Oct. 9, 2007), is because the petitioner sought just a little more relief than he was entitled to.

Morgan accepted a plea agreement that included a sentencing term pursuant to Federal Rule of Criminal Procedure 11(c)(1)(C). So far, so good.

The stipulated sentence was near the upper limit of the guidelines but the district court opined that an upward departure may be appropriate. This led the district court to express its disdain for sentencing agreements because the inclusion of the sentence left nothing for the court to do:

Reasoning that acceptance of stipulated sentences as a general matter renders a district court’s entry of judgment a mere formality, the [district] court concluded: “I don’t think that’s what Article III federal court should be reduced to. So for that reason, we’re going to reject the Rule 11(c)(1)(C) stipulated term in this agreement as being unreasonable as a matter of law, not necessarily unreasonable as a matter of fact.”

Faced with the options of (1) withdrawing his plea and going to trial or (2) pleading guilty and leaving sentencing to a court that had already expressed its opinion that an upward departure might be appropriate, Morgan sought mandamus to compel the district court to accept the plea agreement, including the sentence.

The Ninth refuses to compel the district court to do so, but holds that the district court erred in rejecting the plea without a particularized analysis. The court’s summary rejection of the plea was a failure to exercise its discretion, so the Ninth remands for the district court to “make an individualized assessment of the propriety of Morgan’s stipulated sentence, in light of the factual circumstances specific to his case.”

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Posted in: Criminal Procedure, Federal Procedure, Plea Bargains, Sentencing

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October 2, 2007

DNA Collection Survives Another Constitutional Challenge

DNA collection while on supervised release is constitutional, even if the terms of supervised release in your original sentence did not provide for it and the DNA Analysis Backlog Elimination Act (“DNA Act”), which mandates it, became effective only after you were sentenced. In United States v. Lujan, case no. 02-30237 (9th Cir. Sept. 25, 2007), the court rejects arguments that collection under these circumstances violates the Fourth Amendment and Ex Post Facto Clause, constitutes an unlawful bill of attainder, and violates the separation of powers.

Lujan’s appeal was stayed pending the outcome in two other appeals, and the outcomes of those cases allow the Ninth to dispose easily of the first three challenges. Sentencing Law and Policy notes that with this decision the Ninth joins all other circuits that have “considered these and related issues,” and the first comment there calls the case “cleanup work” and notes that the Supreme Court denied certiorari just yesterday in United States v. Reynard (9th Cir. 2007) 473 F.3d 1008, which the Ninth relied upon in rejecting the Ex Post Facto Clause and bill of attainder challenges. (The other case relied upon was United States v. Kincade (9th Cir. 2004) 379 F.3d 813 (en banc).)

The separation of powers challenge requires a little more analysis from the court, as this question apparently has not been previously addressed. The court nonetheless dispatches it rather quickly. No separation of powers violation occurs by having the probation department, part of the judicial branch, collect the DNA. The probation office does not encroach on the executive branch because its role is limited to collection. It does not analyze the sample or use the results to investigate or prosecute other crimes. Moreover, the purpose of the DNA Act is consistent with the function of the judiciary because, by instilling a fear in defendants that their role in any future crimes will be quickly identified, it deters future crime and thus furthers two goals of supervised release: “rehabilitation and the prevention of harm to others.”

You can access the amicus brief filed in support of the government by the Criminal Justice Legal Foundation here.

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Posted in: Constitutional Law, Criminal Procedure, Search & Seizure

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September 26, 2007

What Makes a Necessarily Included Offense?

In People v. Murphy, case no. C046923 (3d Dist. August 29, 2007, modified Sept. 25, 2007), the defendant contended that she was “improperly convicted for both selling the cocaine rock in count one and possessing that same rock for sale in count two, a necessarily included offense.” The record showed that the defendant was actually accused of possessing two cocaine rocks and did not show upon which rock the jury founded the conviction on the count for possession for sale.

The court concludes the conviction on multiple counts was proper because the applicable test — whether the statutory elements of the greater offense include all of the statutory elements of the lesser offense — looks only to the statutory elements of the offenses and not to the facts of the particular case:

[T]he applicable test here of a necessarily included offense, the statutory elements test–a much narrower test than the outdated test set forth in cases upon which defendant relies–was not met, and defendant’s convictions for selling and possessing for sale are proper. [Citation.]

The outdated test of a necessarily included offense upon which defendant relies encompasses an offense in which the facts established by the evidence at trial make it impossible to commit one offense without also committing another. [Citation.]

Looking solely to the statutory elements, the court concludes that the element of possession in count two (possession for sale) is not necessary for a conviction on count one (sale) since a defendant is guilty of sale even for brokering the sale of cocaine in the possession of someone else. It doesn’t matter that in this case, the defendant was indeed in possession.

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Posted in: California Procedure, Criminal Procedure

September 25, 2007

Vindictive Prosecution Dismissal Gets De Novo Review

If you had been stopped twice at the U.S. – Mexican border trying to smuggle in illegal immigrants, told the customs officer both times that you had been paid to drive the vehicle across the border — and in one case admitted that you knew the compensation was for alien smuggling — and you weren’t prosecuted in either instance, you might figure that when you are prosecuted — this time, for trying to bring marijuana across the border — you’re better off explaining that you thought you were smuggling aliens instead of marijuana. That’s exactly how Sharon Ann Jenkins testified in her own defense at trial.

While the jury was deliberating on the drug smuggling charge, the government filed a complaint charging her with the prior two instances of alien smuggling, and she moved to dismiss the subsequent indictment on grounds of vindictive prosecution, claiming that the U.S. Attorney only prosecuted her for the alien smuggling because she exercised her right to testify in her defense on the drug charges. California Appellate Report has a nice write-up on that part of the case.

But before the Ninth Circuit could reach the merits in U.S. v. Jenkins, case no. 06-50049 (9th Cir. July 17, 2007, amended Sept. 25, 2007), it was faced with the unsettled issue of the appropriate standard of review:

The standard of review of a district court’s decision whether to dismiss an indictment for vindictive prosecution is unsettled in this circuit. [Citation.] We have reviewed vindictive prosecution cases de novo, for abuse of discretion, and for clear error. [Citation]

We conclude that the district court’s decision should be reviewed de novo because the issue presents a mixed question of law and fact. The trial court first determines whether the prosecutor’s course of conduct appears motivated by a desire to punish the defendant for exercising a legal right. The court then decides whether the prosecutor has come forth with sufficient evidence to dispel any appearance of vindictiveness. Because our review of these determinations “requires us to consider legal concepts in the mix of fact and law,” de novo review is appropriate. [Citations.]

Two points.

First, note how specifically the court identifies the issue for purposes of assigning a standard of review. The court doesn’t describe the decision under review merely as the dismissal of an indictment, but as the dismissal of an indictment for vindictive prosecution. Lesson: research and apply the standard for the most specific issue that has been previously articulated. And if the court has only identified the general issue before, perhaps you have an argument for a better standard of review to apply to your specific circumstance.

Second, note how succinctly the court settled this issue, compared to its recent resolution in U.S. v. Larson of a similar 3-way split on the standard of review to apply in confrontation clause challenges based on limitations on cross-examination, which I blogged about here and here. Both cases involved an unsettled question regarding the standard of review in a criminal matter. Perhaps the weight of the issue in Larson, where the defendant had already been convicted, seemed greater to the court than the mere dismissal of an indictment.

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Posted in: Appellate Procedure, Criminal Procedure, Federal Procedure, Standard of Review

September 18, 2007

CALCRIM No. 226 Survives Appellate Challenge

In People v. Wamer, case no. F051027 (5th Dist. Sept. 12, 2007), the Court of Appeal holds that CALCRIM No. 226 does not impermissibly lighten the prosecutor’s burden of proof.  Wamer, convicted of murder, contended that the last paragraph of the instruction lightened the prosecutor’s burden by its use of the words in bold italics in the below excerpt (emphasis added), the last paragraph of the instruction:

If you decide that a witness deliberately lied about something significant in this case, you should consider not believing anything that witness says.  Or, if you think the witness lied about some things, but told the truth about others, you may simply accept the part that you think is true and ignore the rest.

The Court of Appeal finds that CALCRIM No. 226 is essentially equivalent to another criminal jury instruction that has withstood challenge in the Supreme Court.  That instruction is CALJIC No. 2.21.2:

A witness, who is willfully false in one material part of his or her testimony, is to be distrusted in others.  You may reject the whole testimony of a witness who willfully has testified falsely as to a material point, unless, from all the evidence, you believe the probability of truth favors his or her testimony in other particulars.

Warner’s emphasis on “should” ignores the word following: “CALCRIM No. 226 states that the jury “should consider not believing” – not that the jury should not believe – anything in the testimony of a witness who lied about something significant.” (Emphasis added.)

In the end, the court finds the differences to be semantic only:

Since Warner fails to persuade us that semantic differences between CALCRIM No. 226 and CALJIC No. 2.21.2 are even material, let alone prejudicial, we reject his challenge to the former by deferring to a long line of California Supreme Court cases rebuffing analogous challenges to the latter. 

So CALCRIM No. 226 is safe for now.

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Posted in: California Procedure, Criminal Procedure, Juries

September 12, 2007

Ninth Upholds Death Penalty Despite Jury’s Reference to Bible during Penalty Phase Deliberations

Stevie Lamar Fields was convicted in California state court of heinous crimes, including murder, which he committed in the course of a three-week spree that he started just two weeks after completing a prison stretch for manslaughter.  During the penalty phase of his trial, the jury foreman consulted a Bible, a dictionary, and other reference texts, made notes of points for and against the death penalty, then shared those notes with the jury.  The foreman’s notes in favor of the death penalty included Biblical passages.  Fields was sentenced to death.

The District Court denied habeas relief on the conviction but granted it as to the death penalty. The Ninth Circuit’s en banc reversal of habeas relief for the death sentence in Fields v. Brown, case no. 00-99005 (9th Cir. Sept. 10, 2007) is generating law blog buzz. 

The Ninth summarized Fields’ arguments regarding the Biblical references as follows:

[Fields] submits that there is a material difference between a juror’s commenting on the evidence from general knowledge that other jurors can easily rebut, and a jury’s considering written notes of religious mandates and appeals to a higher authority.  And he contends that the Biblical verses were “strong medicine” that supported imposition of the death penalty when the jurors were split in favor of life without the possibility of parole, thus were prejudicial.
   

Applying an objective test for undue influence, the court opines that a jury would not be unduly influenced by the notes:

Whether or not [the foreman] should have brought his notes to the jury room and shared them, we cannot say that the Biblical part of the “for” part of the notes had a substantial and injurious effect on the verdict. His own notes had an “against” part as well.  So far as we can tell, the communication occurred early on in deliberations.  Jurors could take as much time as they needed to sort through the evidence and reflect on whether the ultimate penalty was the right penalty.  More importantly, the jury was instructed to base its decision on the facts and the law as stated by the judge, regardless of whether a juror agreed with it. We presume that jurors follow the instructions. 
   

Ultimately, however, the court appears to rely on the presence of aggravating factors in support of the death penalty as a counterweight to the notes.  The aggravating evidence was so substantial, the court finds, that jury misconduct had no “substantial and injurious effect or influence in determining the jury’s verdict.” Given this substantial aggravation, the court saw “no prejudicial constitutional error on account of the juror’s notes that requires issuance of the writ.”

By my read, the majority (the case generates three opinions covering 99 pages) leaves open the possibility that where aggravating factors are not so prevalent, or evidence of them not so great, the influence of Biblical materials in the jury deliberations might well be found to have an injurious influence on the jury.

Other law blog coverage can be found at Decision of the Day, Capital Defense Weekly (which calls the decision “cert. bait”), Deliberations (very detailed), and Sentencing Law and Policy (providing links to prior posts on circuit splits on this issue).

How Appealing has this round-up of press coverage.

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Posted in: Constitutional Law, Criminal Procedure, Death Penalty, Juries

September 4, 2007

Expansive Congressional Authorization for Government Appeals in Criminal Cases

In U.S. v. Stanton, case. no. 06-10519 (9th Cir. August 31, 2007), Stanton was convicted by a U. S. Magistrate Judge in a bench trial.  He appealed to the District Court, which reversed his conviction.

The government appealed from the District Court order.  Stanton makes a two-pronged challenge to the government’s right to appeal.

First, he contends that jurisdiction is lacking because the government may appeal only where authorized by Congress and the Criminal Appeals Act, 18 USC §3731, does not explicitly authorize the government to appeal from a district court order reversing a conviction entered by a magistrate and ordering an entry of acquittal.  Right on both counts, says the court, but immaterial.  Section 3731 is expansive, not restrictive, and essentially authorizes appeal by the government so long as it does not violate the Double Jeopardy Clause.  Since reversing the district court here would reinstate Stanton’s conviction without the need for a retrial, the Double Jeopardy Clause is not violated.

Second, Stanton contends that Section 3731 does not authorize an appeal in his case because it only authorizes appeals from the dismissal of an indictment or information, and he was charged by way of criminal complaint.  Once again, the liberal construction of Section 3731 comes to the government’s rescue.  Section 3731 itself provides that “[t]he provisions of this section shall be liberally construed to effectuate its purposes.”  Since the Supreme Court has identified the section’s purpose as “avoiding the creation of nonconstitutional barriers to appeal,” and Stanton identifies no constitutional reason why Section 3731 should not apply in cases where the defendant is charged by criminal complaint, the distinction does not prevent appeal.

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Posted in: Appellate Jurisdiction, Appellate Procedure, Constitutional Law, Criminal Procedure, Double Jeopardy, Federal Procedure

August 10, 2007

The Limited Retroactivity of Cunningham

If you had been convicted of a crime and either exhausted or foregone your right of appeal, and then the United States Supreme Court decided a case that suggests your sentencing was error, you’d file a habeas petition, wouldn’t you?  Of course you would.

But you’d be out of luck in California if the U. S. Supreme Court case you were counting on was Cunningham v. California (2007), ____ U.S. ____ [127 S.Ct. 856], in which the Supreme Court held that upper term sentences may not be imposed based on facts found by the court rather than the jury beyond a reasonable doubt.  In In re Gomez, case no. B197980 (2d Dist. August 7, 2007), the Court of Appeal holds that Cunningham does not apply retroactively on collateral review to cases that were already final when it was decided.

This result is reached via the rule that:

[A]n old rule applies both on direct and collateral review.  A new rule applies retroactively in a collateral proceeding only if (1) the rule is substantive or (2) the rule is a “‘watershed rul[e] of criminal procedure’ implicating the fundamental fairness and accuracy of the criminal proceeding.”

(Citations omitted.)

Here, the court finds Cunningham is not a new rule.  Hence, Gomez’s habeas petition is denied.

This is a nice, short opinion worth reading for a good lesson in applying the old rule/new rule test for retroactivity. 

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Posted in: Criminal Procedure, Sentencing

August 7, 2007

Undue Delay Precludes Coram Nobis Relief Even Where No Prejudice Results from Delay

A petitioner for writ of coram nobis must satisfy a four-part test, one element of which is that  “valid reasons exist for not attacking the conviction earlier.”  Hirabayashi v. United States, 828 F.2d 591, 604 (9th Cir. 1987).  In United States v. Riedl, case no. 06-10424 (August 6, 2007), the petitioner argued to the Ninth Circuit that even if the court did not accept her reasons for delay as valid, the delay could not preclude relief unless the government asserted laches, i.e., that it would suffer prejudice from a grant of the writ in light of the delay.  The Ninth Circuit rejects the argument, finding that undue delay precludes relief even in the absence of prejudice:

We agree with the district court that Riedl’s petition must be denied. She has failed to provide any valid reasons for waiting so long to challenge her convictions on these grounds, and thus plainly does not satisfy the requirements for the highly unusual remedy of coram nobis relief. See Hirabayashi v. United States, 828 F.2d 591, 604 (9th Cir. 1987) adopting four factors as predicates for coram nobis relief, including that “valid reasons exist for not attacking the conviction earlier”). Riedl attempts to overcome her unjustified delay by invoking the equitable doctrine of laches, arguing that the government has not been prejudiced by her tardiness. Cf. Telink, Inc. v. United States, 24 F.3d 42, 45 (9th Cir. 1994) (addressing laches in coram nobis context). We reject the notion that a petitioner can employ laches in such a fashion. To follow Riedl’s suggestion under the circumstances of this case would transform the extraordinary writ of coram nobis into a free pass for attacking criminal judgments long after they have become final.

Riedl was attempting to turn laches from a shield into a sword.  The Ninth Circuit finds offensive use of the doctrine . . . well, offensive:

Nevertheless, Riedl is incorrect that coram nobis relief is available as long as it is not barred by laches. Our decisions that have considered laches have done so only because the government invoked the doctrine as a supplemental defense.  Those decisions have not purported to overrule the Hirabayshi framework, which places the initial burden of justifying delay squarely on the petitioner, nor as three-judge opinions could they have done so.

(Emphasis in original.)

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Posted in: Coram Nobis, Criminal Procedure, Federal Procedure, Ninth Circuit, Writ Practice

August 3, 2007

More on U.S. v. Larson

A few days ago, I blogged about the odd reasoning behind the en banc Ninth Circuit’s purported resolution in United States v. Larson of a 3-way intra-circuit split over the applicable standard of review in Confrontation Clause cases. Here’s some other blog coverage.

While my post concentrated on the intra-circuit split, Split Circuits gives you coverage of the split among the federal circuits on the same issue.

California Appellate Report comments on the odd 4-4-7 split vote of the en banc panel that results in one of the 4-judge opinions being the opinion of the court.

Larson is Ninth Circuit Blog’s Case o’ the Week, where the federal defenders’ blog digs into the substantive aspects of the case and notes that despite the intent of en banc review to clarify important issues, this case will be “all things to all people” and the poster, Steve Kalar, also responds to my comment.

 UPDATE (8/3/07): University of Michigan Law School Professor Richard Friedman addresses the standard of review issue in depth, along with some of the substance.  It’s the most comprehensive post about the case that I’ve run across.

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Posted in: Appellate Procedure, Confrontation Clause, Constitutional Law, Criminal Procedure, Ninth Circuit

August 1, 2007

En Banc Ninth Circuit Resolves Intra-Circuit Split on Standard of Review in Confrontation Clause Challenges

In United States v. Larson, case no. 05-30076 (August 1, 2007), an en banc Ninth Circuit court resolves a 3-way intra-circuit split on the standard of review to apply in Confrontation Clause challenges. Citing one line of Ninth Circuit cases applying de novo review, another reviewing for abuse of discretion, and a third applying a “combination” of these two standards, the courts states that it is adopting the last of these, but its analysis seems less than clear to this reader . . .

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Posted in: Appeals, Appellate Procedure, Criminal Procedure, Ninth Circuit, Standard of Review

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