By Darren Chaker
In People v. Rodriguez (Court of Appeal, Fourth District 3/7/11) the court held when appellate counsel raises a Pitchess claim, it is counsel's responsibility to ensure that the Pitchess materials are part of the record. In the trial court, appellant filed a motion seeking discovery of police officer personnel records (Pitchess v. Superior Court (1974) 11 Cal.3d 531 ( Pitchess). After viewing the personnel records in camera, the trial court determined that there were no records that were discoverable. On appeal, appellant requested the appellate court to make an independent review of the transcripts and records to determine whether the trial court properly denied the motion. However, appellant failed to ensure that the Pitchess records were part of the record on appeal.
The appellate court exercised its discretion and augmented the record to include the Pitchess materials and, after reviewing them, found no error. The appellate court stated that the reason it published the opinion was to remind appellate counsel of its "responsibility to ensure that the record is perfected in cases in which a Pitchess claim is raised."
Friday, April 1, 2011
Prop 36 Probation by Darren Chaker
By Darren Chaker, www.Darren-Chaker.com
The court has discretion to terminate Proposition 36 probation when a defendant makes no effort to comply with drug treatment, thereby implying a refusal of drug treatment as a condition of probation. After pleading guilty to possession of heroin and admitting three prior prison term enhancements, appellant was granted Proposition 36 probation for three years. Within two months a petition for violation of probation was filed alleging failure to report to the probation officer, failure to complete treatment, failure to register, and failure to complete AIDS education. He admitted the allegations and was reinstated on Proposition 36 probation.
About a month later, a second petition alleging the same counts was filed. Following a revocation hearing, the court found appellant in violation and sentenced him to prison, finding the failure to report was "a non-Prop 36 violation." The appellate court found no error. Under Penal Code section 1210.1, subdivision (d), Proposition 36 probation may be revoked if the court finds appellant unamenable to drug treatment.
Here, there was nothing in the record to support a conclusion that appellant failed to report for drug testing, which would have been violation of a drug-related condition of probation (see In re Taylor (2003)105 Cal.App.4th 1394). Appellant simply failed to report. Further, appellant's repeated violations indicated that he has refused drug treatment and thus, was unamenable for drug treatment probation.
The court has discretion to terminate Proposition 36 probation when a defendant makes no effort to comply with drug treatment, thereby implying a refusal of drug treatment as a condition of probation. After pleading guilty to possession of heroin and admitting three prior prison term enhancements, appellant was granted Proposition 36 probation for three years. Within two months a petition for violation of probation was filed alleging failure to report to the probation officer, failure to complete treatment, failure to register, and failure to complete AIDS education. He admitted the allegations and was reinstated on Proposition 36 probation.
About a month later, a second petition alleging the same counts was filed. Following a revocation hearing, the court found appellant in violation and sentenced him to prison, finding the failure to report was "a non-Prop 36 violation." The appellate court found no error. Under Penal Code section 1210.1, subdivision (d), Proposition 36 probation may be revoked if the court finds appellant unamenable to drug treatment.
Here, there was nothing in the record to support a conclusion that appellant failed to report for drug testing, which would have been violation of a drug-related condition of probation (see In re Taylor (2003)105 Cal.App.4th 1394). Appellant simply failed to report. Further, appellant's repeated violations indicated that he has refused drug treatment and thus, was unamenable for drug treatment probation.
Tolling AEDPA Deadline by Darren Chaker
By Darren Chaker
In Wall v. Kholi, 131 S. Ct. 1278, found that for AEDPA purposes, a state-court motion to reduce a sentence is an application for collateral review which tolls the AEDPA deadline. Respondent was convicted of sexual assault and sentenced to several consecutive life terms by the Rhode Island court, with the conviction becoming final on direct review in 1996.
In addition to direct review, he filed two state motions, the first to reduce the sentence and the second for state post-conviction relief. Both were denied. He then filed a federal habeas petition. Under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), a properly filed application for state post-conviction or other collateral review with respect to the pertinent judgment or claim tolls AEDPA's one-year limitation period for filing.
The Supreme Court held that collateral review means judicial review of a judgment in a proceeding that is not part of direct review. Because respondent's motion to reduce his sentence under the Rhode Island law is not part of the direct review process, the motion tolled the AEDPA filing limitation, such that his federal habeas petition was timely.
In Wall v. Kholi, 131 S. Ct. 1278, found that for AEDPA purposes, a state-court motion to reduce a sentence is an application for collateral review which tolls the AEDPA deadline. Respondent was convicted of sexual assault and sentenced to several consecutive life terms by the Rhode Island court, with the conviction becoming final on direct review in 1996.
In addition to direct review, he filed two state motions, the first to reduce the sentence and the second for state post-conviction relief. Both were denied. He then filed a federal habeas petition. Under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), a properly filed application for state post-conviction or other collateral review with respect to the pertinent judgment or claim tolls AEDPA's one-year limitation period for filing.
The Supreme Court held that collateral review means judicial review of a judgment in a proceeding that is not part of direct review. Because respondent's motion to reduce his sentence under the Rhode Island law is not part of the direct review process, the motion tolled the AEDPA filing limitation, such that his federal habeas petition was timely.
Postconviction DNA Testing in Federal Court by Darren Chaker
By Darren Chaker
The Supreme Court decided Skinner v. Switzer, 131 S. Ct. 1289, where a statute or rule governing a state-court decision may be challenged in a federal action as long as review of a ruling in a particular case is not sought. Appellant was convicted of murder and sentenced to death in Texas. Following his conviction, Texas enacted Article 64 which allows for postconviction DNA testing in limited circumstances. Skinner twice filed motions in state court for DNA testing of yet untested biological evidence, and both were denied, with denial affirmed by the Texas Court of Criminal Appeals. He then filed the instant federal action for injunctive relief under 42 U.S.C. section 1983, a civil statute. The lower federal courts affirmed the Texas court rulings but the Supreme Court reversed and remanded. Although a state-court decision is not reviewable by lower federal courts, a statute or rule governing the decision may be challenged in a federal action. Because Skinner's federal case fell within the second category, there was no lack of subject-matter jurisdiction over his federal suit.
If plaintiff's action, even if successful, will not demonstrate the invalidity of his conviction or sentence, the suit can be brought in a civil rights action under 42U.S.C. section 1983. A state prisoner complaining of unconstitutional state action can proceed only under a habeas action (28 U.S.C. section 2254) when the action seeks immediate or speedier release from confinement. When success of the claim does not necessarily imply invalidity of the conviction, the suit may be brought under section 1983. Here, success in his suit for DNA testing would not necessarily imply validity of Skinner's conviction. The outcome of test results was not inevitable; it might prove exculpatory, but equally could be inconclusive or further incriminate Skinner. Thus, action under section 1983 was proper.
The Supreme Court decided Skinner v. Switzer, 131 S. Ct. 1289, where a statute or rule governing a state-court decision may be challenged in a federal action as long as review of a ruling in a particular case is not sought. Appellant was convicted of murder and sentenced to death in Texas. Following his conviction, Texas enacted Article 64 which allows for postconviction DNA testing in limited circumstances. Skinner twice filed motions in state court for DNA testing of yet untested biological evidence, and both were denied, with denial affirmed by the Texas Court of Criminal Appeals. He then filed the instant federal action for injunctive relief under 42 U.S.C. section 1983, a civil statute. The lower federal courts affirmed the Texas court rulings but the Supreme Court reversed and remanded. Although a state-court decision is not reviewable by lower federal courts, a statute or rule governing the decision may be challenged in a federal action. Because Skinner's federal case fell within the second category, there was no lack of subject-matter jurisdiction over his federal suit.
If plaintiff's action, even if successful, will not demonstrate the invalidity of his conviction or sentence, the suit can be brought in a civil rights action under 42U.S.C. section 1983. A state prisoner complaining of unconstitutional state action can proceed only under a habeas action (28 U.S.C. section 2254) when the action seeks immediate or speedier release from confinement. When success of the claim does not necessarily imply invalidity of the conviction, the suit may be brought under section 1983. Here, success in his suit for DNA testing would not necessarily imply validity of Skinner's conviction. The outcome of test results was not inevitable; it might prove exculpatory, but equally could be inconclusive or further incriminate Skinner. Thus, action under section 1983 was proper.
Ninth Circuit Decides U.S. v. Kohring by Darren Chaker
By Darren Chaker, www.Darren-Chaker.com
The prosecution violates a defendant’s due process rights by withholding material exculpatory/impeaching evidence in violation of Brady v. Maryland (1963) 373 U.S. 83,and Giglio v. U.S (1972) 405 U.S. 150. Kohring, a former Alaska State House legislator, was convicted of public corruption charges. While the case was on appeal, the prosecution disclosed new exculpatory evidence and the matter was remanded to the district court for a Brady/Giglio hearing.
In Brady, the Supreme Court held the prosecution violates a defendant's due process rights where it withholds material evidence which is favorable to the accused. It extended this principle to include impeachment evidence in Giglio. After a hearing, the district court found the government had withheld favorable evidence but had not violated Brady/Giglio because the newly-disclosed evidence was not material. On appeal the Ninth Circuit disagreed and reversed. It cited the three elements of a Brady/Giglio violation: (1) the evidence withheld must be favorable to the accused either because it is exculpatory or impeaching; (2) the evidence was withheld willfully or inadvertently; and (3) prejudice.
Here, the prosecution withheld thousands of pages of documents. After a detailed evaluation of the nature of the evidence withheld, the court found the cumulative effect of the nondisclosure undermined confidence in the outcome of the trial. A substantial amount of the material was either admissible on its face or could have been used for impeachment. Evidence regarding possible bias and criminal acts committed by the prosecution’s star witness would have probably had substantial impact on the jury’s assessment of his credibility.
Because the court did not find the prosecution acted “flagrantly, willfully and in bad faith” it declined to dismiss the superseding indictment, instead remanding the matter for new trial. The dissent would have dismissed the indictment in light of flagrant prosecutorial misconduct.
The prosecution violates a defendant’s due process rights by withholding material exculpatory/impeaching evidence in violation of Brady v. Maryland (1963) 373 U.S. 83,and Giglio v. U.S (1972) 405 U.S. 150. Kohring, a former Alaska State House legislator, was convicted of public corruption charges. While the case was on appeal, the prosecution disclosed new exculpatory evidence and the matter was remanded to the district court for a Brady/Giglio hearing.
In Brady, the Supreme Court held the prosecution violates a defendant's due process rights where it withholds material evidence which is favorable to the accused. It extended this principle to include impeachment evidence in Giglio. After a hearing, the district court found the government had withheld favorable evidence but had not violated Brady/Giglio because the newly-disclosed evidence was not material. On appeal the Ninth Circuit disagreed and reversed. It cited the three elements of a Brady/Giglio violation: (1) the evidence withheld must be favorable to the accused either because it is exculpatory or impeaching; (2) the evidence was withheld willfully or inadvertently; and (3) prejudice.
Here, the prosecution withheld thousands of pages of documents. After a detailed evaluation of the nature of the evidence withheld, the court found the cumulative effect of the nondisclosure undermined confidence in the outcome of the trial. A substantial amount of the material was either admissible on its face or could have been used for impeachment. Evidence regarding possible bias and criminal acts committed by the prosecution’s star witness would have probably had substantial impact on the jury’s assessment of his credibility.
Because the court did not find the prosecution acted “flagrantly, willfully and in bad faith” it declined to dismiss the superseding indictment, instead remanding the matter for new trial. The dissent would have dismissed the indictment in light of flagrant prosecutorial misconduct.
U.S. v. Bonilla, 3/11/11, Ninth Circuit by Darren Chaker
By Darren Chaker, www.Darren-Chaker.com
The court errs in denying defendant’s motion to withdraw his guilty plea based on inadequate legal advice as to immigration consequences. Bonilla, a 30-year resident of the U.S., pled guilty to federal charges of possessing an unregistered firearm and being a felon in possession of a gun. After Bonilla was indicted, his wife made inquiries of an investigator and attorney regarding the possible deportation consequences of a plea. The investigator referred her to the attorney. The attorney agreed to look into the matter, but did not do so prior to the plea. After the plea, the attorney informed Bonilla’s wife that the offenses were aggravated felonies and would result in Bonilla’s deportation. Prior to sentencing, Bonilla moved to withdraw the plea, asserting he would not have entered it had he known the immigration consequences.
The district court denied the motion, finding that trial counsel was not required to advise Bonilla of immigration matters, as deportation was only a “collateral consequence” of the plea. Subsequently, the U.S. Supreme Court, in Padilla v. Kentucky (2010) 130 S.Ct. 1473, found that trial counsel has a duty to give correct legal advice when the deportation consequence is clear, and extended the Strickland effective counsel guarantees to the passive omission of correct advice regarding the possibility of deportation.
Under Federal Rule 11(d)(2)(B) a defendant seeking to withdraw his plea before sentencing is required to show that the proper legal advice of which he was deprived could have plausibly motivated a reasonable person in the defendant’s position not to have entered the plea. The deportation consequences here met this standard. The court vacated the plea and remanded.
The court errs in denying defendant’s motion to withdraw his guilty plea based on inadequate legal advice as to immigration consequences. Bonilla, a 30-year resident of the U.S., pled guilty to federal charges of possessing an unregistered firearm and being a felon in possession of a gun. After Bonilla was indicted, his wife made inquiries of an investigator and attorney regarding the possible deportation consequences of a plea. The investigator referred her to the attorney. The attorney agreed to look into the matter, but did not do so prior to the plea. After the plea, the attorney informed Bonilla’s wife that the offenses were aggravated felonies and would result in Bonilla’s deportation. Prior to sentencing, Bonilla moved to withdraw the plea, asserting he would not have entered it had he known the immigration consequences.
The district court denied the motion, finding that trial counsel was not required to advise Bonilla of immigration matters, as deportation was only a “collateral consequence” of the plea. Subsequently, the U.S. Supreme Court, in Padilla v. Kentucky (2010) 130 S.Ct. 1473, found that trial counsel has a duty to give correct legal advice when the deportation consequence is clear, and extended the Strickland effective counsel guarantees to the passive omission of correct advice regarding the possibility of deportation.
Under Federal Rule 11(d)(2)(B) a defendant seeking to withdraw his plea before sentencing is required to show that the proper legal advice of which he was deprived could have plausibly motivated a reasonable person in the defendant’s position not to have entered the plea. The deportation consequences here met this standard. The court vacated the plea and remanded.
U.S. v. Doss, Ninth Cir., Case No. 07-50334
By Darren Chaker, www.Darren-Chaker.com
Since part of the federal enhancement was circumstance-dependent, it required proof beyond a reasonable doubt. Doss was convicted of sex trafficking of children and other offenses, and sentenced to life. He challenged, inter alia, the lower court’s use of a prior conviction to impose mandatory life sentences. Regarding the life sentences, the court reversed and remanded. In imposing sentence the trial court had examined the record of Doss’ prior and found evidence that the offense involved a minor under 17 years of age, as required for the federal enhancement.
However, the U. S. Supreme Court in Nijawan v. Holder (2009) 129 S.Ct. 2294 (an immigration case), distinguished between generic offenses (in which a court should look to the statutory elements to determine whether a felony is aggravated) and “circumstance-specific” crimes (where it is appropriate to look at the facts/circumstances of the offense). Here, the reviewing court found that the fact the victim was a minor was not an element of the prior sex conviction. Therefore, a factual determination that a minor victim was involved falls outside the “fact of a prior conviction” exception of Apprendi, and required proof beyond a reasonable doubt.
Since part of the federal enhancement was circumstance-dependent, it required proof beyond a reasonable doubt. Doss was convicted of sex trafficking of children and other offenses, and sentenced to life. He challenged, inter alia, the lower court’s use of a prior conviction to impose mandatory life sentences. Regarding the life sentences, the court reversed and remanded. In imposing sentence the trial court had examined the record of Doss’ prior and found evidence that the offense involved a minor under 17 years of age, as required for the federal enhancement.
However, the U. S. Supreme Court in Nijawan v. Holder (2009) 129 S.Ct. 2294 (an immigration case), distinguished between generic offenses (in which a court should look to the statutory elements to determine whether a felony is aggravated) and “circumstance-specific” crimes (where it is appropriate to look at the facts/circumstances of the offense). Here, the reviewing court found that the fact the victim was a minor was not an element of the prior sex conviction. Therefore, a factual determination that a minor victim was involved falls outside the “fact of a prior conviction” exception of Apprendi, and required proof beyond a reasonable doubt.
Darren Chaker, www.Darren-Chaker.com
Probation officers are authorized to detain persons found in a juvenile probationer's house to monitor the probationer's compliance with the terms of his probation.
In July 2007, Probation Officer Morris, along with other probation officers, went to juvenile probationer R.R.’s residence. Morris knew that R.R.’s probation prohibited him from associating with gang members and allowed searches. When Morris entered the house he encountered Rios, who refused to identify himself. Based on Rios’ evasiveness, appearance, and behavior, Morris believed he was gang-associated and was trying to hide a weapon. When Rios refused to stand and be frisked, Morris and another officer took Rios to the ground and handcuffed him. A gun fell out of Rios’ shirt; he also had a switchblade. As Rios failed to contest the lawfulness of the officers’ entry at trial, his belated effort to do so on appeal was rejected and the issue was limited to the lawfulness of Rios’ detention. The court found that Rios was legitimately on the premises, but was no more than a casual visitor.
As such, he failed to establish that his Fourth Amendment rights were violated by a search of the residence. With respect to the seizure of his person, officers were authorized to detain him incident to the search of R.R.’s home. They knew R.R. was prohibited from associating with gang members, and Rios had what appeared to be gang tattoos. Thus, the officers were authorized to detain Rios to ascertain his identity and relationship to the probationer and the residence. His search was justified by Morris’ belief that Rios might be armed. Appellant’s contention that the prosecution was required to prove the scope and precise terms of the juvenile’s probation conditions (i.e., including R.R.’s residence), was rejected.
First, this issue was not raised below. Further, trial counsel’s failure to do so was not ineffective assistance of counsel. Officer Morris testified the court had imposed “every term and condition possible” on R.R., which is inconsistent with a search term being limited to R.R.’s person. Finally, Morris’ status as a probation officer did not limit his authority to detain Rios because he was acting within the scope of Welfare and Institutions Code section 830.5, subdivision (a)(1) in supervising R.R.’s probation.
Probation officers are authorized to detain persons found in a juvenile probationer's house to monitor the probationer's compliance with the terms of his probation.
In July 2007, Probation Officer Morris, along with other probation officers, went to juvenile probationer R.R.’s residence. Morris knew that R.R.’s probation prohibited him from associating with gang members and allowed searches. When Morris entered the house he encountered Rios, who refused to identify himself. Based on Rios’ evasiveness, appearance, and behavior, Morris believed he was gang-associated and was trying to hide a weapon. When Rios refused to stand and be frisked, Morris and another officer took Rios to the ground and handcuffed him. A gun fell out of Rios’ shirt; he also had a switchblade. As Rios failed to contest the lawfulness of the officers’ entry at trial, his belated effort to do so on appeal was rejected and the issue was limited to the lawfulness of Rios’ detention. The court found that Rios was legitimately on the premises, but was no more than a casual visitor.
As such, he failed to establish that his Fourth Amendment rights were violated by a search of the residence. With respect to the seizure of his person, officers were authorized to detain him incident to the search of R.R.’s home. They knew R.R. was prohibited from associating with gang members, and Rios had what appeared to be gang tattoos. Thus, the officers were authorized to detain Rios to ascertain his identity and relationship to the probationer and the residence. His search was justified by Morris’ belief that Rios might be armed. Appellant’s contention that the prosecution was required to prove the scope and precise terms of the juvenile’s probation conditions (i.e., including R.R.’s residence), was rejected.
First, this issue was not raised below. Further, trial counsel’s failure to do so was not ineffective assistance of counsel. Officer Morris testified the court had imposed “every term and condition possible” on R.R., which is inconsistent with a search term being limited to R.R.’s person. Finally, Morris’ status as a probation officer did not limit his authority to detain Rios because he was acting within the scope of Welfare and Institutions Code section 830.5, subdivision (a)(1) in supervising R.R.’s probation.
Subscribe to:
Posts (Atom)