In The News

RIGHT TO BEAR ARMS:

In People v. Heller (128 S.Ct. 2783), the US Supreme Court held that the 2nd Amendment's right to bear arms is an individual right. The Court of Appeals rejects the claim that PC 12025, carrying a concealed weapon, is invalidated by Heller. OK. But what about PC 12021(c)(1), possessing a firearm by a person previously convicted of an enumerated misdemeanor? Well, Heller said that it is OK to make it a crime for an ex-felon to possess a weapon. This Court of Appeals says that it can't see any principled distinction between possession of firearms by ex-felons and possession by ex-misdemeanants. Oh really? What nonsense. Finally, what about PC 12031, carrying a loaded firearm in public? There's lots of discussion in Heller about the right to conspicuous possession of firearms. The Court of Appeals goes off the cliff on this one. They say that the law at issue in Heller was very broad; barring firearms anywhere; but 12031 is very narrow, only barring possession of firearms anywhere in public. And it has exceptions (like for police), so it's OK. Give me a break. People v. Flores; 2008 DJ DAR 18615; DJ, 12/23/08; C/A 4th.

POSSESSING MANY ITEMS OF CHILD PORN; HOW MANY COUNTS?:

The defendant possessed 46 items of child porn in 38 "containers" (disks, tapes, hard drives, etc.). So of course the District Attorney filed 46 counts of PC 311.11, possession of child porn. The Court of Appeals says that this is only one count, not 46. The fact that there were different containers doesn't matter. People v. Manfredi; 2008 DJ DAR 18662; DJ, 12/23/08; C/A 5th

WHAT'S THE NOTICE OF MOTION REQUIREMENT FOR SUPPLEMENTAL PITCHESS MOTIONS?:

Pitchess (11 C3d 531) discovery motions must comply with the notice of motion provisions in Evidence Code 1043 and Code of Civil Procedure 1005. You have to give 16 court days' notice of your motion, and you have to add 5 calendar days if you serve by mail. OK, your motion is granted. You investigate and now need to file a supplemental Pitchess motion to get the actual complaints. What time limit applies? This Court of Appeals says the same 16 and 5 day requirements apply to supplemental discovery motions. Tulare v. Superior Court; 2008 DJ DAR 18492; DJ, 12/19/08; C/A 5th.

BOX CUTTERS AT SCHOOL:

The minor here had a box cutter in his backpack at school. The blade was exposed. The minor was found a ward for violation of PC 626.10(a), possessing a razor with an unguarded blade at school. What about Michael R. (120 CA4th 1203), which held that possessing a box cutter with the blade retracted doesn't violate the statute? The Court of Appeals says that the blade here was exposed, not retracted, so that's an unguarded blade and thus possession of it violated the statute. In re Z.R.; 2008 DJ DAR 18191; DJ, 12/15/08; C/A 5th.

CONSECUTIVE SENTENCES FOR MULTIPLE DRUG SALES:

The minor sold methamphetamines five times during a football game. She got five consecutive sentences (I suppose the Court of Appeals means that the juvenile court set the maximum confinement time by imposing consecutive sentences). The minor argues that PC 654 bars consec. sentences here. The Court of Appeals disagrees, saying that each sale was a unique act with a separate objective. In re Noelle M.; 2008 DJ DAR 18407; DJ, 12/18/08; C/A 3rd.

TRIAL DURING WHICH THE ATTORNEY RESIGNS FROM THE STATE BAR:

Here's how you can tell that you're having a bad day. You're on trial for Assault with a Deadly Weapon and beating up your girlfriend. On day 3 of trial your attorney resigns from the state bar, to avoid being disbarred. You get convicted with a strike prior and get 8 years in prison. Not a good day. Hey, wait, what about that attorney thing? Well, in Johnson (1 C4th 689), the California Supreme Court held that a lawyer who has resigned from the state bar isn't actually a lawyer, so a trial with this lawyer is a trial without a lawyer and requires reversal per se. The District Attorney argues that the defendant did have counsel for 3 out of the 4 days of trial, so the Court of Appeals should only reverse if it finds prejudice. The Court of Appeals rejects this, reversing the conviction. See, not so bad. People v. Vigil; 2008 DJ DAR 18222; DJ, 12/12/08; C/A 6th.

RELIGIOUS FREEDOM TO SELL MARIJUANA?:

Gee, I just can't understand why this defense didn't work. The defendant has a business, Temple 420, in Hollywood. It was a church in which members could buy marijuana. The defendant planned to sell marijuana from vending machines. The defendant said he was trying to bring religion to the pot movement because there are a million people trying to legalize pot and a lot of them don't have God in their lives. The defendant sold marijuana to an undercover officer. Surprisingly, he got convicted of sale of marijuana. On appeal, he claims a religious freedom defense. Rejected. People v. Rubin; 2008 DJ DAR 17624; DJ, 12/2/08; C/A 2nd, Div. 6.

UNLAWFUL STOP, DISCOVERY OF A WARRANT, THEN A SEARCH. ILLEGAL?:

Wow, get ready for this one. The police unlawfully stop the defendant. So this is an unlawful traffic stop. During the stop, before any search, the police find that the defendant has a warrant. They arrest the defendant, search, and find drugs. Result? You're probably going to say that the unlawful stop invalidates the search. You would be wrong. The California Supreme Court says that the discovery of the warrant is an intervening circumstance that attenuates the taint of the antecedent unlawful traffic stop. This seems incredible to me. They note that evidence of purposeful or flagrant police misconduct would require suppression, as would a stop undertaken as a fishing expedition. They distinguish Sanders (31 C4th 318), which held that an unlawful search can't be justified by later discovery that the defendant is on probation or parole with search conditions, saying that no search occurred here until after the police found the warrant. People v. Brendlin; 2008 DJ DAR 17352; DJ, 11/25/08; Cal. Supreme Ct.

NO CRIME? NO PROBLEM:

This is a weird one. The defendant is walking down the middle of the street, minding his own business. The police try to detain him for violation of a Sacramento city ordinance requiring that pedestrians walk on sidewalks. The def. runs away. The defendant is charged with resisting an executive officer in the performance of his duties. They don't actually say anywhere what code section this is; I presume it is PC 69.

The Court of Appeals finds that the Sacramento ordinance is preempted by state law, so the defendant wasn't violating any law. Defense wins, right? Of course not. They say that the defendant's decision to flee dissipated the taint from the illegality, so suppression of the police observations is not appropriate. I think this is wrong, but something bothers me more. PC 69 requires that a defendant resist an officer in the performance of his duties. How is the defendant's conduct a violation of PC 69? The legality of the officer's conduct is an element of the crime. (Manual G., 16 C4th 805.) Here, the def. pled (?), so I suppose that's why this Court of Appeals doesn't actually note that there's no crime here. People v. Cox; 2008 DJ DAR 17321; DJ, 11/21/08; C/A 3rd

PRIMARY CAREGIVER FOR THE MEDICAL MARIJUANA DEFENSE:

This is a medical marijuana case. Primary caregivers are immune from state prosecution for possessing or cultivating marijuana. But who is a primary caregiver? The California Supreme Court here hold that supplying marijuana and instructing on its use, and otherwise only sporadically taking some patients to medical appointments is not enough. The California Supreme Court says that you have to be a caregiver at or before the time marijuana got involved in order to qualify. People v. Mentch; 2008 DJ DAR 17357; DJ, 11/25/08; Cal. Supreme Ct.

CALCRIM ON IMPERFECT DEFENSE OF OTHERS:

Imperfect defense of others reduces a murder to a voluntary manslaughter. (See Randle, 35 C4th 987.) The defendant here complained that the CALCRIM on this point never tells the jury that imperfect defense of others eliminates malice. The Court of Appeals rejects this claim, saying that the instruction, taken as a whole, makes this clear, and that there is no magic to actually using the term "malice" in the instruction itself. People v. Genovese; 2008 DJ DAR 17365; DJ, 11/25/08; C/A 3rd.

WAIVING WIRETAP CHALLENGES; CORPUS DELICTI FOR UNCHARGED CRIMES:

These guys called some buddies to retaliate against some men. Oopsie, the feds were listening in on a wiretap. The existence of the wiretap was disclosed. And the defense moved to suppress, challenging the sufficiency of the wiretap application. That's all well and good, but there were many other violations of the wiretap procedure. But the defense didn't specifically object to these other violations. The Court of Appeals finds that failure to object to all the other violations waived these issues for appeal. When you actually find out that a wiretap was used, you've got to go through all the wiretap procedural rules very carefully, and object to every violation of them. Second issue: The corpus delicti rule used to bar admission of a confession absent independent evidence that a crime occurred. The Supremes held that this aspect of the corpus rule was abrogated by Prop. 8, way back when. (Alvarez, 27 C4th 1161.) What's left is a rule of sufficiency: a conviction is insufficient as a matter of law if it's based solely on a confession without independent evidence that a crime occurred. Does the corpus rule apply to uncharged crimes otherwise admissible against a defendant? There's some law supporting the conclusion that the corpus rule does apply to uncharged crimes. (See, e.g., Robertson, 33 C3d 21; Williams, 44 C3d 883.) There's some law to the contrary, and this Court of Appeals agrees with that law. They hold that a confession without a corpus is admissible to prove an uncharged crime. People v. Davis; 2008 DJ DAR 17295; DJ, 11/21/08; C/A 3rd.