Preliminary hearing evidence was insufficient to support adding a conspiracy to commit murder count to the information over defense objection. The Court also affirmed defendant's murder and attempted murder convictions, finding no ineffective assistance of counsel where trial counsel had a strategic reason for permitting the introduction of a co-defendant’s confession and any prosecutorial misstatement regarding premeditation was harmless. Finally, the indeterminate sentence on the attempted murder conviction was proper despite the failure to allege that the attempt was willful and premeditated, as defense otherwise had sufficient notice and the jury properly rendered the required true finding.
Preliminary hearing evidence was insufficient to support adding a conspiracy to commit murder count to the information over defense objection. The Court also affirmed defendant's murder and attempted murder convictions, finding no ineffective assistance of counsel where trial counsel had a strategic reason for permitting the introduction of a co-defendant’s confession and any prosecutorial misstatement regarding premeditation was harmless. Finally, the indeterminate sentence on the attempted murder conviction was proper despite the failure to allege that the attempt was willful and premeditated, as defense otherwise had sufficient notice and the jury properly rendered the required true finding.
The full opinion is available on the court’s website here: https://www4.courts.ca.gov/opinions/documents/B329413.PDF
Where defendant was denied a full and fair hearing on his challenge to the validity of a strike prior, he may challenge an enhanced sentence for a later offense on the ground the prior conviction was unconstitutionally obtained. When he pled guilty to criminal threats (Pen. Code, § 422) in 2000, Dubrin was assured by the trial court and prosecutor that the offense would not count as a strike. However, Proposition 21, which was approved by voters the day before Dubrin's plea, added a section 422 offense as a strike and there were no issues of retroactivity. (People v. Ringo…
Where defendant was denied a full and fair hearing on his challenge to the validity of a strike prior, he may challenge an enhanced sentence for a later offense on the ground the prior conviction was unconstitutionally obtained. When he pled guilty to criminal threats (Pen. Code, § 422) in 2000, Dubrin was assured by the trial court and prosecutor that the offense would not count as a strike. However, Proposition 21, which was approved by voters the day before Dubrin's plea, added a section 422 offense as a strike and there were no issues of retroactivity. (People v. Ringo (2005) 134 Cal.App.4th 870, 884.) After he learned the section 422 conviction was a strike, Dubrin filed petitions in the state courts challenging the conviction. The Court of Appeal denied relief, finding Dubrin was not "in custody." In 2008, Dubrin was convicted of new felonies and given a life sentence based on two strike priors. His renewed challenges to the section 422 prior were denied and he sought federal writ relief. Held: Reversed. Generally when an "expired" prior conviction is used to enhance a later sentence, the defendant may not challenge the prior via a federal writ petition on the ground it was unconstitutionally obtained. The rule is based on the need for finality of convictions and ease of administration. (Lackawanna County Dist. Atty. v. Coss (2001) 532 U.S. 394.) However, an exception to the rule arises when a defendant, exercising due diligence, does not receive a full and fair hearing on his timely challenge to a prior. Here, the plea court was incorrect in telling Dubrin his offense would not be a strike. The Court of Appeal erred when it summarily denied relief on the basis that Dubrin was not in custody, as he was on parole. The state courts, without justification, refused to rule on Dubrin's constitutional claim on postconviction review. As Dubrin cannot be faulted for failing to obtain timely review of his constitutional challenge to an expired prior conviction, and that conviction was used to enhance his current sentence, he may challenge the prior as unconstitutional in federal habeas proceedings.
A defendant has no statutory right to appointment of an expert for a sentencing hearing and any constitutional right that may exist is qualified. Appellant was on probation in two cases for drug offenses when he was arrested for and pled guilty to a new drug offense. Prior to sentencing, defense counsel filed a motion for appointment of an expert, a psychotherapist and a drug treatment evaluator, to assist the defense in procuring alternative options to a prison sentence. The court denied the motion, indicating an expert was not necessary. The appellate court rejected appellant's argument that…
A defendant has no statutory right to appointment of an expert for a sentencing hearing and any constitutional right that may exist is qualified. Appellant was on probation in two cases for drug offenses when he was arrested for and pled guilty to a new drug offense. Prior to sentencing, defense counsel filed a motion for appointment of an expert, a psychotherapist and a drug treatment evaluator, to assist the defense in procuring alternative options to a prison sentence. The court denied the motion, indicating an expert was not necessary. The appellate court rejected appellant's argument that he had a statutory right to appointment of an expert under Evidence Code section 730. Applying rules of statutory construction, the court found that in non-capital cases, the right was limited to appointment of experts only for purpose of defense at trial on the issue of guilt and did not extend to sentencing. The court also rejected appellant's contention that denial of appointment of experts for sentencing purposes violated his rights to due process, equal protection, and effective assistance of counsel. The denial of an expert here did not render the sentencing hearing fundamentally unfair. Although counsel may have a right to an expert at a sentencing hearing to counter the testimony of an expert presented by the prosecution, such was not the case here. As to the equal protection argument, an indigent criminal defendant is not necessarily entitled to the same advantages of the defendant with privately retained counsel and denial of a motion for appointment of an expert for sentencing does not, alone, result in a violation of the Sixth Amendment right to counsel.
Blakely error is not "structural" but is subject to the harmless beyond a reasonable doubt standard. (Washington v. Recuenco (2006) 548 U.S. ___ [126 S.Ct. 2546].) Here the jury found appellant guilty of a vandalism where the evidence established a significant amount of loss and other acts of malice that the judge then relied on to justify the upper term. None of the facts were contested. The appellate court found that no reasonable jury would fail to find that these malicious acts had occurred and that they were sufficient to justify the upper…
Blakely error is not "structural" but is subject to the harmless beyond a reasonable doubt standard. (Washington v. Recuenco (2006) 548 U.S. ___ [126 S.Ct. 2546].) Here the jury found appellant guilty of a vandalism where the evidence established a significant amount of loss and other acts of malice that the judge then relied on to justify the upper term. None of the facts were contested. The appellate court found that no reasonable jury would fail to find that these malicious acts had occurred and that they were sufficient to justify the upper term.
An offender's statutory-minimum ten-year term for growing marijuana was not unconstitutional. The defendant argued the federal statute which classifies 1,000 or more marijuana plants, regardless of weight, as being equal to 1,000 or more kilograms of harvested marijuana for purposes of the ten-year minimum term violates the Fifth and Eighth Amendments. The Ninth Circuit panel disagreed, noting that prior caselaw holds that there is no Fifth Amendment requirement that the penalty for an offense involving one marijuana plant be equal to the penalty for an offense involving the quantity of dried marijuana that the plant would yield.…
An offender's statutory-minimum ten-year term for growing marijuana was not unconstitutional. The defendant argued the federal statute which classifies 1,000 or more marijuana plants, regardless of weight, as being equal to 1,000 or more kilograms of harvested marijuana for purposes of the ten-year minimum term violates the Fifth and Eighth Amendments. The Ninth Circuit panel disagreed, noting that prior caselaw holds that there is no Fifth Amendment requirement that the penalty for an offense involving one marijuana plant be equal to the penalty for an offense involving the quantity of dried marijuana that the plant would yield. The panel also rejected the Eighth Amendment claim, finding that the sentence disparity was not grossly disproportionate. Courts give great deference to the legislatures power to set sentencing terms, and thus the Eighth Amendment is generally implicated only when a sentence exceeds statutory limits.
At Ornelas's sentencing following a plea of no contest to assault with a deadly weapon, the trial court failed to inquire whether Ornelas had any legal cause to show why judgment should not be pronounced against him (Penal Code section 1200). Neither Ornelas nor counsel either objected to the sentence or requested to present mitigating evidence. On appeal, he contended that he was denied his statutory right to allocution pursuant to section 1200. The appellate court rejected his argument and affirmed. Lack of compliance with section 1200 is harmless error when a defendant is represented by…
At Ornelas's sentencing following a plea of no contest to assault with a deadly weapon, the trial court failed to inquire whether Ornelas had any legal cause to show why judgment should not be pronounced against him (Penal Code section 1200). Neither Ornelas nor counsel either objected to the sentence or requested to present mitigating evidence. On appeal, he contended that he was denied his statutory right to allocution pursuant to section 1200. The appellate court rejected his argument and affirmed. Lack of compliance with section 1200 is harmless error when a defendant is represented by counsel and has pleaded guilty. Appellant and his attorney had an opportunity to speak with the probation officer and their statements were included in the probation report. He was represented by counsel and pleaded guilty. Therefore there was no prejudice arising from the trial court's omission.
Appellant was charged with attempted voluntary manslaughter of two police officers, after firing a gun in the direction of the officers' vehicle. Prior to trial, appellant filed a Pitchess motion seeking discovery of police records of the officers. The motion was supported by a declaration by defense counsel describing the shootings and characterizing the police report as false, and denying appellant's involvement in the shootings. Appellant contended on appeal that the trial court erred in denying his Pitchess motion without conducting an in-camera review of the officers' personnel files. The appellate court held that the trial…
Appellant was charged with attempted voluntary manslaughter of two police officers, after firing a gun in the direction of the officers' vehicle. Prior to trial, appellant filed a Pitchess motion seeking discovery of police records of the officers. The motion was supported by a declaration by defense counsel describing the shootings and characterizing the police report as false, and denying appellant's involvement in the shootings. Appellant contended on appeal that the trial court erred in denying his Pitchess motion without conducting an in-camera review of the officers' personnel files. The appellate court held that the trial court was correct in denying the motion because appellant did not demonstrate a specific factual scenario of officer misconduct which was plausible in light of the pertinent documents. Evidence of appellant's involvement in the shootings came from civilian witnesses, not directly from the officers. Appellant's showing was insufficient to satisfy the materiality aspect of Pitchess. Nor did it meet the test of specificity in that there was no connection between the officers' conduct and the civilians' statements which identified appellant's role in the charged offense. Further, the trial court did not err when it refused to instruct on self-defense, as there was no substantial evidence to support the theory at trial. The uncontroverted evidence showed that it was appellant who sought out the officers. There was no evidence of any apprehension of danger by appellant. The giving of instructions on unreasonable self-defense did not compel instructions on perfect self-defense. Finally, appellant's Blakely argument concerning his upper term and consecutive sentences was waived for failure to raise it in the trial court. Even if it had not been forfeited, the Supreme Court recently rejected appellant's arguments in People v. Black.
Revocation of defendants Proposition 36 probation was premature because the prosecution had failed to make three separate formally noticed petitions before revoking his probation solely for drug-related reasons. The court here counted the number of violations admitted rather than the number of formal revocation proceedings. The People conceded on appeal that this was error, but argued that the court had also found defendant to be unamenable to treatment, and that furthermore, the procedural issue was waived by defendants failure to object. The Court of Appeal disagreed, noting that the court had failed to reach the amenability issue…
Revocation of defendants Proposition 36 probation was premature because the prosecution had failed to make three separate formally noticed petitions before revoking his probation solely for drug-related reasons. The court here counted the number of violations admitted rather than the number of formal revocation proceedings. The People conceded on appeal that this was error, but argued that the court had also found defendant to be unamenable to treatment, and that furthermore, the procedural issue was waived by defendants failure to object. The Court of Appeal disagreed, noting that the court had failed to reach the amenability issue because it had already determined that the defendant had more than three violations of probation. The matter was remanded for a hearing on the issue of amenability to further treatment. The court found no waiver of the issue due to the fact that the trial court and all counsel clearly misunderstood the requirements of section 1210.1.
A trial court erred in imposing multiple enhancements for discharging a firearm where there was only one shot fired at a single victim. After concluding that substantial evidence supported the defendants convictions for attempted murder, kidnapping for robbery, and kidnapping for carjacking, as well as the finding that he had discharged a firearm in the commission of those crimes, the court held that section 654 did not preclude multiple punishment for kidnapping the same victim for robbery and for carjacking, since the evidence showed separate objectives for those two crimes. However, separate punishment for the same acts in regard…
A trial court erred in imposing multiple enhancements for discharging a firearm where there was only one shot fired at a single victim. After concluding that substantial evidence supported the defendants convictions for attempted murder, kidnapping for robbery, and kidnapping for carjacking, as well as the finding that he had discharged a firearm in the commission of those crimes, the court held that section 654 did not preclude multiple punishment for kidnapping the same victim for robbery and for carjacking, since the evidence showed separate objectives for those two crimes. However, separate punishment for the same acts in regard to a second victim was improper, because there was but a single act and a single criminal objective underlying both aggravated kidnappings as to that victim. And where only one victim was involved in the discharge of the firearm, only one enhancement could be imposed under Penal Code section 12022.53, as opposed to one enhancement per felony charge. The court further held that Blakely v. Washington (2004) 124 S.Ct. 2531 does not apply to consecutive sentencing under California law, but that remand for resentencing was required because the trial court had not selected a base determinate term but had instead ordered that all determinate counts be subordinate to the indeterminate term.
The court properly sentenced appellant to the upper term where he had nine prior convictions for driving while intoxicated. The court rejected a Blakely v. Washington (2004) 159 L.Ed.2d 403 challenge to the upper term sentence, finding that the Supreme Court has preserved the exception for prior convictions under Almendarez-Torres v. United States (1998) 523 U.S. 224. Thus, the court properly relied on defendants prior convictions in imposing sentence. To the extent that the court might have erred in considering defendants prior prison term and performance on parole, the Court of Appeal found the error harmless beyond…
The court properly sentenced appellant to the upper term where he had nine prior convictions for driving while intoxicated. The court rejected a Blakely v. Washington (2004) 159 L.Ed.2d 403 challenge to the upper term sentence, finding that the Supreme Court has preserved the exception for prior convictions under Almendarez-Torres v. United States (1998) 523 U.S. 224. Thus, the court properly relied on defendants prior convictions in imposing sentence. To the extent that the court might have erred in considering defendants prior prison term and performance on parole, the Court of Appeal found the error harmless beyond a reasonable doubt. Justice Scotland wrote a concurring opinion in which he found the Blakely error to have been waived by defendants failure to object.