• Appellate Procedure,  Criminal Law,  Standard of Review

    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…

  • Criminal Law

    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…

  • Criminal Law,  Juries

    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…

  • Criminal Law

    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…

  • Criminal Law,  Ninth Circuit

    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…

  • California Supreme Court,  Criminal Law

    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…

  • Criminal Law,  Federal Procedure,  Ninth Circuit

    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…

  • California Court of Appeal,  Criminal Law,  Statutory Construction

    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’…

  • Criminal Law,  Federal Procedure,  Ninth Circuit,  Sentencing

    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.