THE WEEK’S CASES: for the week ending October 21, 2016
by Al Menaster, Deputy Public Defender, Los Angeles County Public Defender’s Office.
PRE-FILING DELAY, PREJUDICE, AND INEFFECTIVE ASSISTANCE OF COUNSEL
The shooting here occurred in 1992. The suspects were identified right away. But the case wasn’t filed until 2011. During that time period, a witness who exonerated the defendant was lost and couldn’t be found. Defense counsel didn’t make a motion to dismiss, though he can’t say why. The C/A finds ineffective assistance of counsel (IAC) in failing to make the motion to dismiss. Under the Cal. Constitution, the defendant must show actual harm from pre-charging delay, such as the loss of a material witness. Once that’s shown, the DA has to justify the delay. If the DA does so, the court balances harm versus justification. The court finds harm from the loss of an exculpatory witness and justification because of the lack of investigative resources. The C/A finds that it’s reasonably probable that the trial court would have granted the motion because of the weakness of the DA’s case. The fix? The C/A’s resolution is to order a new trial where the hearsay statements of the unavailable witness are admitted. We’ve never seen this sort of sanction before.
People v. Booth; G047986; 10/12/16; C/A 4th, Div. 3
DOES A SPECIAL CIRCUMSTANCE ALLEGATION MAKE A SUBSTANTIVE COUNT A LESSER?
A defendant can’t be convicted of both a greater offense and a necessarily lesser-included offense. Here, the defendant was convicted of murder with a special circumstance of burglary, and in count two he was convicted of burglary. Does this violate the rule? Nope, says this C/A. They say that the rule is that sentencing enhancements aren’t elements of the offense and cannot be considered in determining whether an offense is a lesser-included offense. The C/A can’t see any difference between a sentencing enhancement and a special circumstance allegation. Note that the court stayed the sentence on the burglary count, which seems to me to be compelled by PC 654 (though the C/A doesn’t discuss this).
People v. Boswell; D067946; issued 9/22/16; published 10/13/16; C/A 4th, Div. 1
ONE ACT, ONE INJURY, MULTIPLE PUNISHMENTS [More…] »
New Self-Study Opportunity – The 2016 Annual Homicide Defense Practice Seminar – Full program online for MCLE Self-Study
Annual Homicide Defense Seminar
(Self-Study credit via Internet, Participatory credit for in-person attendance)
Recorded over the dates of Friday & Saturday September 16-17, 2016
Kathleen Cannon, Attorney at Law, Vista, California
Bart Sheela, Deputy Alternate Public Defender, San Diego County
This year`s Annual Homicide Defense Seminar VIEWED ONLINE will provide you with up to six hours of continuing legal education SELF-STUDY credits, by addressing some very important aspects in the defense of homicide cases. We will cover important topics that include Homicide Law from a Defense Perspective, Video Evidence, Use of Experts, Cold Cases, Natural and Probable Consequences!
See below for details regarding topics and speakers.
The entire CPDA Calendar of Events page is located HERE
Annual Felony Defense Seminar – Yosemite National Park – Nov. 11-12, 2016
The California Public Defenders Association presents…
21st Annual Felony Defense Practice Seminar
Friday & Saturday, November 11-12, 2016
At Half Dome Village, a.k.a. Curry Pavilion, in Yosemite National Park!
Important notice re: Lodging below in RED
Don’t miss this opportunity for an excellent training program in an excellent location!
Kathleen Cannon, Attorney at Law, San Diego, California
Charles Denton, Assistant Public Defender, Alameda County
Bart Sheela, Deputy Alternate Public Defender, San Diego County
Join us for this program that promises to provide an informative and practical approach to handling these difficult cases.We have developed an excellent line up of well-known experts who will be there to give you insights into how you can approach a variety of issues that arise in felony defense practice with better results.
The program registration fee includes syllabus, reception on Friday, and breakfast on Saturday. Please note that you must make your lodging reservation immediately. MCLE & Legal Specialization credits apply (see below).
LODGING UPDATE: For those planning to attend the CPDA Felony Defense Seminar in Yosemite on November 11-12 (Friday and Saturday), the CPDA initial lodging room block at Yosemite Lodge is sold out. However, we were successful in finding great alternative/additional lodging at the YOSEMITE VIEW LODGE in El Portal, about 20 minutes away from the meeting facility (which is Half Dome Village Pavilion) The direct number for the View Lodge is 209-379-2681. Be sure to mention that you are with CPDA. You can also call their Central Reservations desk at 559-252-4848. The hotel is quoting the following prices: $110.00+tax 2 queen Riverview and $90.00+tax 2 queen Mountain View
PROGRAM SCHEDULE – PROGRAM NUMBER S-566
DAY ONE – Friday, November 11, 2016 Half Dome Village
12:00 p.m. Registration & Check-In, Curry Pavilion. Soft Drinks & Chips
1:00 p.m. New Sentencing Practices Serving the Needs of Defendants – What Every Defense Attorney Needs To Know – Honorable Marion Gaston, Judge, San Diego Superior Court, San Diego County
2:30 p.m. Break
2:45 p.m. Enforcing the Law–BOLO for Prosecution Misconduct [1.5 hrs Ethics credit]
Michael Ogul, Deputy Public Defender, Santa Clara County [More…] »
New Report – Forensic Science in Criminal Courts: Ensuring Scientific Validity of Feature-Comparison Methods
The President’s Council of Advisors on Science and Technology (PCAST) has released its report: Forensic Science in Criminal Courts: Ensuring Scientific Validity of Feature-Comparison Methods.
President’s Council of Advisors on Science and Technology recommends actions to strengthen forensic science and promote its more rigorous use in the courtroom.
Today, the President’s Council of Advisors on Science and Technology (PCAST) released its latest report to the President, Forensic Science in Criminal Courts: Ensuring Scientific Validity of Feature-Comparison Methods. “Forensic science” refers to the application of scientific or technical practices to the recognition, collection, analysis, and interpretation of evidence for criminal and civil law or regulatory issues. Developments over the past two decades—including wrongful convictions in which forensic science has played a role and scientific studies of forensic science methods—have called increasing attention to the question of the scientific validity and reliability of some important forms of forensic evidence and of testimony based upon them.
The study that led to the report was a response to the President’s question to his PCAST in 2015, as to whether there are additional steps on the scientific side, beyond those already taken by the Administration in the aftermath of a highly critical 2009 National Research Council report on the state of the forensic sciences, that could help ensure the validity of forensic evidence used in the Nation’s legal system.
PCAST concluded that two important gaps warranted the group’s attention: (1) the need for clarity about the scientific standards for the validity [More…] »
Criminal Law Case Summaries: August-September 2016
by Gary Mandinach, Attorney at Law, California Appellate Project, Los Angeles, California
1. People v. Garner (2016) Cal.App.4th , reported on August 22, 2016, in 2016 Los Angeles Daily Journal 8651, the Second Appellate District, Division 4 held that the trial court erred in denying the defendant’s petition for resentencing under Prop 47. The Court of Appeal held that a felony conviction for second degree commercial burglary is reducible to misdemeanor shoplifting where the defendant entered the “commercial establishment” with intent to commit theft by false pretenses.
2. People v. Newman (2016) Cal.App.4th , reported on August 22, 2016, in 2016 Los Angeles Daily Journal 8631, the Second Appellate District, Division 2 held that the trial court did not err in denying the defendant’s motion to have his sentence modified under Prop 36, section 1170.126. In determining whether a defendant’s “third strike” conviction was for a violent felony, which in turn makes him ineligible for resentencing under the Three Strikes Reform Act, a court is empowered to consider the record of conviction and to make factual findings by a preponderance of the evidence, even if those findings were not made by the jury or the trial court in convicting defendant of the offense. (See People v. Frierson (2016) Cal.App.4th , reported on July 21, 2016, in 2016 Los Angeles Daily Journal 7352; contra to People v. Arevalo (2016) 244 Cal.App.4th 836.)
3. People v. Wagner (2016) Cal.App.4th , reported on August 22, 2016, in 2016 Los Angeles Daily Journal 8653, the Fourth Appellate District, Division 1 held that the trial court erred when it incorrectly concluded it lacked jurisdiction under section 1473.6 to hear claims related to improper revocation of parole. Section 1473.6 gives the trial court jurisdiction to vacate its order revoking the defendant’s parole based on evidence purporting to show that in pursuing revocation of his parole, a parole officer acted in retaliation for litigation defendant initiated against another law enforcement officer and testified falsely at the revocation hearing.
4. People v. Grimes (2016) Cal.4th , reported on August 23, 2016, in 2016 Los Angeles Daily Journal 8698, the California Supreme Court held that statements by since-deceased accomplice, offered by defense as declarations against penal interest in an effort to deflect responsibility for murder from defendant to the accomplice, were so disserving to the declarant’s interests that a reasonable person in his position would not have made them unless they were true, making them admissible under Evidence Code section 1230. The erroneous exclusion of statements against interest was harmless in the guilt phase, since defendant was guilty beyond a reasonable doubt under the felony-murder rule regardless of his role in the actual killing, but it was prejudicial in the penalty phase.
5. People v. Rodriguez (2016) Cal.4th , reported on August 23, 2016, in 2016 Los Angeles Daily Journal 8671, the California Supreme Court held the the presiding judge abused his discretion by ruling the judge who made the ruling on the motion to suppress, unavailable solely by reason of his having been transferred to another courthouse. A judge may be found unavailable for purposes of section 1538.5, subdivision (p), thereby permitting a different [More…] »
Defender 411 Radio
Defender 411 Radio Station. This station includes legislative news updates, information on upcoming seminars long before they’re distributed, president’s messages, alerts regarding state bar news and calls for public comment; and other audio resources, not all of which qualifies for MCLE self-study credits (a calendar will be added that so notes those broadcasts that do, similar to Claranet 411 Radio). News flashes and other urgent messages fo for members will interrupt any broadcast currently in progress.
New mobile apps for CPDA members – Download from the Apple App and/or the Google Play store
The CPDA Members App. The CPDA Members App was created to help build a closer-knit community among members. Members of CPDA who download the app can join conversations, share photos, learn about events, and locate contact information for all members.
The California Public Defenders Association (CPDA) is a nonprofit organization that serves as a resource center for its members who are all criminal defense attorneys – both private attorneys who practice criminal defense in California, and public defenders who are criminal defense attorneys employed by local county public defender agencies. The organization was formed over 40 years ago and today provides numerous on-site training programs through the year and in different locations held throughout the state of California, all designed exclusively for criminal defense attorneys who practice in California. Together, the two groups of criminal defense attorneys (private defenders and public defenders) comprise the membership of CPDA, which totals over 3,400 practicing criminal defense attorneys in California, in particular, but the membership is open to criminal defense attorneys in other states and several hundred from throughout the U.S. are associate members of CPDA.
Two options to download the CPDA Members App:
1. Download from the Google Play Store:
2. Download from the Apple App Store:
The CLARANET App. For CPDA members with the additional “Claranet” subscription, there’s an additional app that is [More…] »