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Showing posts from 2009

Recent Case Holding: People v. Limon - Immigration Consequences

This case held that: If the trial court fails to advise a defendant of immigration consequences, the defendant may seek to withdraw his plea pursuant to Penal Code section 1016.5, subdivision (b). In 1988, appellant, a non-citizen, was convicted of felony drug offenses and granted probation with a condition requiring him to serve a jail sentence. In 1995, he was deported but returned illegally in 1987, and in 2008, he filed a motion pursuant to section 1016.5, subdivision (b) to vacate judgment and withdraw his guilty pleas. The trial court denied the motion. The denial was affirmed. To prevail on a section 1016.5, subdivision (b) motion, a defendant must establish that he was not properly advised of immigration consequences as provided by statute. Because the trial court properly advised appellant of immigration consequences when it accepted his pleas, appellant’s statutory claim was found to be without merit.
People v. Limon , District: 5 DCA , Case #: F056907
Opinion Date: 12/11/2009…

Broadcom's former CEO wins dismissal of criminal backdating charges

Broadcom Corp's former chief executive and financial officers won dismissal of criminal charges over stock-option backdating after a federal judge found that prosecutors had intimidated three critical witnesses. U.S. District Judge Cormac Carney, at a hearing in federal court in Santa Ana, ended the trial of former finance chief William Ruehle and threw out the charges against former CEO and co-founder Henry Nicholas, who was scheduled to go trial in February. Judge Carney also dismissed the SEC complaint filed against four Broadcom executives. This came after Judge Carney vacated a guilty plea by former by Broadcom co-founder Henry Samueli in the same case after hearing him testify for two days last week as a defense witness for Ruehle under a grant of immunity. Judge Carney found that prosecutors tried to prevent three key defense witnesses from testifying, improperly contacted attorneys for defense witnesses and leaked information about grand jury proceedings to the media.


Case Update: People v. Rios - Implied Waiver of Rights to Silence & Counsel

In People v. Rios, the California Court of Appeals held that where a defendant impliedly waived his rights to silence and counsel, subsequent admissions were admissible. In that case, Defendant Rios was arrested and placed in the back of a patrol car. He was advised of his Miranda rights by a deputy, who did not ask for a waiver. The deputy then left the patrol car for 5 to 10 minutes. When he returned, he questioned Rios, who then made incriminating statements. The trial court found that Rios had been properly advised of and waived his Miranda rights, and denied the defendant's motion to exclude the statements. On appeal from his subsequent conviction, Rios contended that admission of the statements was reversible error because the prosecution failed to show that he waived his rights to silence and to counsel. He argued that the deputy's interrogation technique of not soliciting a waiver of rights was similar to the tactics disallowed by J. Souter's plurality opini…

United States v. Ruckes: Evidence Admissible Despite Illegal Vehicle Search

In United States v. Ruckes, the Ninth Circuit court of Appeals upheld the admissibility of drug and firearm evidence in a case where law enforcement conducted an illegal search of a vehicle under the doctrine of inevitable discovery. The Court followed the recent Supreme Court decision of Arizona v. Gant, which limits searches of automobiles, pursuant to the driver’s arrest, to situations where the driver is “unsecured and within reaching distance” of the interior of the car at the time of the search or where it is reasonable to expect evidence related to the crime underlying the arrest might be found in the vehicle. In Ruckes, the driver was arrested for driving without a license and secured in the back of a patrol vehicle. The Court found that since no evidence related to unlawful driving might be found in the car, and since Mr. Ruckes posed no danger of getting a weapon from the car at the time of the search, the search would otherwise be illegal under the Gant decision. However, t…

Recent Case Holding: People v. Stevens (deputy can stand next to testifying defendant)

Last Thursday, the California Supreme Court ruled that positioning a uniformed deputy next to a testifying criminal defendant isn't inherently prejudicial. Justice Carol Corrigan wrote that "jurors may view the sight of an officer accompanying the defendant to the witness stand as nothing more than a routine measure." On the dissent, Justice Carlos Moreno, joined by Justice Joyce Kennard, said that such an act posed a "serious risk" to an individual's right to a fair trial.

This case occurred in Alameda County, when the trial judge directed a deputy to stand at a defendant's side as he testified on his own behalf in a rape trial. The defense argued that this was akin to a "human shackle" unjustified by good cause. Nonetheless, the majority of the Court held that the presence of a deputy "does not directly impair the accused's mobility, nor does it create the affront to human dignity that we have lamented in the context of visible shack…

November 1, 2009 Amendments to United States Sentencing Guidelines with respect to Sex Crimes

Taking effect on November 1, 2009, the U.S. Sentencing Commission has made several changes to the federal Sentencing Guidelines in a number of ways relating to sex crimes. The amendments address an enhancement for undue influence of a minor as well as changes to the child pornography and human trafficking guidelines.

Undue Influence Amendments
§2A3.2 (Criminal Sexual Abuse of a Minor Under the Age of Sixteen Years (Statutory Rape) or Attempt to Commit Such Acts) and §2G1.3 (Promoting a Commercial Sex Act of Prohibited Sexual Conduct with a Minor; Transportation of Minors to Engage in a Commercial Sex Act or Prohibited Sexual Conduct; Travel to Engage in Commercial Sex Act or Prohibited Sexual Conduct with a Minor; Sex Trafficking of Children; Use of Interstate Facilities to Transport Information about a Minor) each contain an enhancement for undue influence where “a participant otherwise unduly influences the minor to engage in prohibited sexual conduct.”

Two issues have arisen involving…

Change of Venue Motion Granted in Mehserle Case

In the highly-publicized trial of former BART police officer accused of murdering Oakland resident Oscar Grant, the defense's motion to have the trial moved out of Alameda County has been granted. Superior Court Judge Morris Jacobson ruled that the defense had shown that Johannes Mehserle could not get a fair trial in Alameda County for the fatal shooting of Oscar Grant on the platform of BART's Fruitvale Station in Oakland early New Year's Day. A hearing is to be held to determine where the trial should be held. In support of his ruling, Judge Jacobson wrote that: "The incident is viewed by many as being a case about race relations between the police and minority communities . . . In essence, this case is an allegation of murder under color of law, inseparably entwined with a broad-scale political controversy."The centerpiece of the defense's argument to move the trial was a telephone survey it commissioned of 397 Alameda County residents. It found that 9…

Recent Case Holding: People v. Bleich (denial of factual innocence motion)

The dismissal of terrorist threat and stalking charges against a Southern California pharmacist did not warrant a finding of factual innocence, the Fourth District Court of Appeal ruled Friday.

The Court rejected Ida Bleich’s request for the finding, concluding that other evidence did not completely exonerate her, but instead provided a strong basis from which a reasonable person would believe she committed the offenses.

An employee at the CVS Pharmacy accused his supervisor (defendant Bleich) of leaving a profanity-laden message on his voicemail in the middle of the night. The recorded call apparently threatened to slit the employee’s hroat and put him in a body bag, among other things. An officer with the El Cajon Police Department made a copy of the message on a cassette-recording device, and police confronted Bleich at the pharmacy where she worked when another CVS employee—listening to the message on the cell phone—identified her as the caller and corroborated the allegations of ha…

New DA in Alameda County

Alameda County's new DA is now Nancy O'Malley, who has replaced Tom Orloff. She was his chosen successor to serve out the rest of his term, which expires in 9 months. Then, it will be up to the voters to elect a new DA.

Recent case holding: Smith v. Lockyer

Smith v. Lockyer, 9th Circuit, Case #: 07-16876, Opinion dated 9/9/09:

Case Holding: A supplemental instruction to the deadlocked jury, addressing concerns of a hold-out juror (concerns which are known to the judge) is considered a denial of defendant's Sixth Amendment right.

Facts: Smith and co-defendant were charged with burglary, robbery, and forced oral copulation. At trial, the prosecution introduced DNA evidence linking Smith to the oral copulation charge. After deliberating, the jury told the judge two times that it was deadlocked on this charge and the judge gave an “ Allen ” instruction, directing the jury to return to its deliberations. On the fifth day, one of the jurors wrote the judge a specific note in which the juror expressed his concerns with the DNA evidence and explained that in light of his concern, he could not vote for conviction. Over the strenuous objection of the defense, the judge then instructed the jury to consider other specific evidence that it believed…

Computer Searches, Major League Baseball, and Drug Testing -- The Ninth Circuit Takes the 4th Amendment into the Information Age

An En Banc Decision by Chief Judge Kozinski on August 31, 2009 will prove to be an influential decision on Fourth Amendment searches of computers. United States v. Comprehensive Drug Testing, 2009 WL 2605378 (9th Cir. Aug. 26, 2009). “This case is about . . . the procedures and safeguards the federal courts must observe in issuing and administering search warrants and subpoenas for electronically stored information.” Id. at *1.

CDT sets forth new search and seizure rules for the Information Age. Because the seizure of electronic records is becoming more common than paper records, in the opinion, the Ninth Circuit advises that this calls for “greater vigilance on the part of judicial officers in striking the right balance between the government’s interest in law enforcement and the right of individuals to be free from unreasonable searches and seizures.” Id. at *15.

BackgroundWhile more detailed facts can be found at United States v. Comprehensive Drug Testing, 513 F.3d 1085, 1089 (9th C…

Judge Sotomayor: Criminal Justice Highlights

With Judge Sotomayor’s confirmation hearings set to begin on July 13, there have been many speculations as to which way the Supreme Court nominee will lean on criminal justice issues. A brief look at her experience as a former prosecutor and at some of her decisions on the bench may help to gain some insight into what type of justice may soon be taking the bench on the highest judicial body in the United States. With respect to criminal cases, statistically, more often than not, Judge Sotomayor has sided with the government. As of 2002, of the 90 criminal law-related cases considered by the appellate panel on which Sotomayor served, she sided with the government 65 times and with the defendants or prisoners 25 times. Whatever side she has ruled for, Sotomayor has nearly always been in the majority and has dissented on a defendant’s behalf only once. Looking more closely at her record, Judge Sotomayor has some notable criminal justice rulings on the subjects of federal sentencing and t…

Recession and Crime: An Overview

The current recession appears to be having an effect on different aspects of crime rates, crime data, and the criminal justice system. Research suggests that rising unemployment and widespread law-enforcement budget cuts in equipment and staffing has resulted in an increase in crime. Additionally, the recession may arguably have an even more radical effect and result in the abolishment of capital punishment in certain cash-strapped states, with debates heating up over whether states should continue to seek the pricey sentence.
The alleged link between the recession and an increase in crime is seemingly crime-specific. White-collar crime, including embezzlement and fraud, has reportedly been the area that has seen the biggest increase. Specifically, as reported by the National Internet Crime Complaint Center (NICCC), cyber fraud is at a record high. Online scams originating worldwide have seen a fifty percent increase in reported complaints in the month of Marc…

Major Cities Moving Toward “Banning the Box” (Employment Questions Regarding Criminal History)

Some major cities across the U.S. are eliminating questions regarding criminal history from their job applications in order to prevent convicts from being shut out of the workforce. This policy has been termed “banning the box,” in reference to the box that applicants are forced to check when they initially apply for a position. Such changes in hiring procedures are aimed at helping ex-convicts to make a successful transition into society. Cities are coming to realize that one of the most significant barriers to successful reintegration is the inability of these individuals to gain employment. Disclosure of a past offense, regardless of its age or relevance to the position being sought, often functions to automatically shut out an individual from a job they are otherwise qualified for.

These “ban the box” policies came about as a result of the national grassroots campaigning of an organization of formerly incarcerated people and their families called All of Us or None. These …