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People v. Branner (2009) , Cal.App.4th Third Dist. Apr. 20, 2009
Cops doing surveillance for suspected drug activity. They eventually stop defendant’s car for lame traffic issues - no rear license light and lights out of alignment - the stop goes on for 5 - 10 minutes while cop does records check. It turns out that Def is drug registrant and during interview he says he hasnt lived at registration location for 8 months. He is arrested for registration violation, vehicle then searched and drugs and gun follow. After losing search motion he pleas. Appellate court says nothing wrong with detention - indeed - federal standard says they had probable cause for arrest on traffic offense -so no problem.
Continue reading Prolonged detention allowed on minor traffic offense
People v. Ary (2009) , Cal.App.4th, First Dist., Apr. 20, 2009
This case has an erratic history. Def facing capital murder gets LWOP. Part of penalty defense is retardation, which appears to be uncontroverted. Competency apparently not raised at trial level. Appeal court initially sends back to trial court in Ary 1 - for hearing on whether it is possible to conduct retrospective competency hearing. It is. Def is then found competent on standard placing burden of preponderance on Def to prove he was incompetent. Appeal court here reverses saying burden is on Pros to show Def was competent. This is an issue which comes up once in a blue moon.
Continue reading Prosecutor has burden to prove Def is competent in retrospective competency hearing
People v. Felix (2009) , Cal.App.4th, Second Dist., Apr. 16, 2009
Def is violent drunk. He smacks girlfriend on head with pistol and takes her home, then calls her aunt to take girlfriend to hospital for bleeding scalp wound. He is paranoid and calls and accuses aunt and girlfriend of going to cops. He threatens to kill them and her family. He calls uncle and threatens to kill him. A few hours later, he drives to uncle/victim house and sees him in window of bedroom. He fires two shots - uncle ducks and no injuries. Unknown to Def, three kids were in the house. Def charged and convicted of attempt premed murder and mutiple assault with firearm charges on kids. However, since Def was frequent visitor to home, he knew kids were often in house and thus intent / knowledge element is satisfied.
Continue reading Assault on unexpected victims is permitted based on thin evidence
People v. Lewis (2009) , Cal.App.4th, First Dist., Div. Four. Apr. 13, 2009
Def convicted of selling rock cocaine. During trial, cop asserts EC1042 privilege. After in-camera hearing excluding Def and his lawyer, court allows privilege without striking testimony or otherwise limiting prosecution. Appeal court says other independent evidence corroborates cop and no possibility that credibility re observation site could be challenged. Here other independent evidence it that same cop accurately identified buyer- huh?. , and Def was allowed to cross examine on angles, obstructions and other relevant issues, thus, the location was not material,
Continue reading EC 1040 privilege upheld during trial to conceal surveillance site
People v. Dyke (2009) , Cal.App.4th First Dist., Apr. 9, 2009
Def acting as wrestling coach for daughter and her 16 yr old friend. One night victim friend says Def was flipping thru channels and she saw nude woman dancing for about 8 minutes and then two naked people having sex from waist up for about 45 seconds. Only evidence describing material is victim. Def is convicted of 288.2 (a) showing harmful material to minor. He gets 2 years. Appeal court has good obscenity discussion and determines that there is no way to tell if material is obscene and thus harmful. Reverses on conviction.
Continue reading Naked dancing and upper body sex scene not obscene/harmful to minor
People v Story (2009) California Supreme Court, S161044, April 9, 2009
Victim is raped and strangled to death in 1976. Def is a suspect, but, apparently not charged. In 2002, Def is finally charged with offense, although, it is not based on any new science (DNA). Since 1976, Def makes admissions to various ex-wives and commits various sex offenses. Trial court allows admission of sex offenses. Court of Appeals judgment holding that trial court prejudicially erred in admitting evidence of defendant’s other sexual assaults and that the evidence did not support a first degree murder verdict is reversed and remanded where: 1) a defendant accused of murder during the course of a rape is accused of a sexual offense within the meaning of Evidence Code sec. 1108, and thus the trial court properly admitted evidence of defendant’s other sexual offenses under sec. 1108.
Continue reading 1108 evidence allowed in murder during course of uncharged rape
People v. Smith (2009) , Cal.App.4th, First Dist., Apr. 9, 2009
Cops see someone opening motel window in Vallejo high crime area-as they approach they see Def sitting in car. He gets out- they ask if he is on parole etc and ask for permission to search. He is on parole and says go ahead. They search him and car and find nothing. Def is cuffed during search. Cops then want to look in his pants. Def stops cooperating-cops remove belt and pull pants down a foot, then look down his shorts and see baseball size pack of drugs over his penis. Search motion is denied. Appeal court says since he is on parole he has minimal expectation of privacy - but the dicta is scary - as long as there is good purpose for seach and some effort to balance dignity issues - here they pull his pants down in public motel lot - but it isnt on the street and two of the cops - were shielding him from public. So. Bad case allowing enlarging intrusion into privacy.
Continue reading Parolee can have his pants pulled down in public if cops slick enough to state good reason
People v. Burns (2009) , Cal.App.4th, Second Dist., Apr. 8, 2009
Def and friend follow victim out of store and down street. After victim enters building, Def grabs her purse and yanks it from her, also stepping on her tow. At trial issue is mistaken identity and no request is made for theft from person. Appeal court says no error - some bad discussion about how tendency to think of purse snatching as theft is too simple - here force of pulling is enough and adding stepping on toe - this can only be robbery - watch out for improper extention of this case
Continue reading Not error in failure to instruct on lesser theft in purse snatch case resulting in robbery conviction
People v. O’Shell (2009) , Fourth Dist. Apr. 8, 2009
Def at conclusion of 2d sex assault term. He is evaluated and found to be Paraphilia NOS and thought to be SVP. At trial Def called by pros as witness wanted to testify that because of 3 strikes life sentence he did not want to get new felony conviction. Trial court excluded 3 strike references even though DA dances around this. Appeal court finds error in exclusion but says its harmless. Defense was that Def did not have qualifying disease - issue relating to reoffending was tangential. Also challenges due process issues - i.e. burden shifted to Def after initial committment (not yet relevant here) , equal protection and clever ‘underground’ regulatory method. Appeal shoots these down too.
Continue reading SVP Def should be allowed to testify about 3 strike life sentence deterring effect
People v. Pearl (2009) , Cal.App.4th, Fourth Dist., Apr. 8, 2009
Def is released on parole. 4 yrs and 2 days later his home is subjected to warrantless parole search, revealing drugs. At suppression hearing, CDC package says parole extended to date several months search date. Judge denies suppression. Appeal court counts days and says, no exception to PC 3000 which terminates parole after 4 years. No parole equals no basis for search and suppression granted. Although court dances around good faith, appeal decision insists that good faith never raised and therefor not part of thier decision. Not sure if it would have affected the outcome.
Continue reading No parole search after expiration of parole term
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