Wednesday, October 27, 2010

Flight from Hit and Run Does Not Qualify as Grounds for Great Bodily Injury Enhancement

The California Court of Appeal determined on Tuesday, October 12th that a great bodily injury enhancement does not apply to a hit and run violation unless the injury was caused or aggravated by the failure to stop and give aid.

The appellant, Mr. Valdez, hit a pedestrian with his car and drove away, injuring the victim. Months later, the appellant turned himself in to the police. Valdez was convicted of hit and run. The jury also found true a great bodily injury enhancement.

The Court of Appeal considered whether a great bodily injury enhancement can be found true in conjunction with a hit and run when the injuries suffered by the victim were not aggravated by the defendant's failure to stop and give aid. The Court held that it could not. Section 12022.7 of the Penal Code requires great bodily injury "in the commission of a felony or attempted felony" and the Vehicle Code section 20001 makes fleeing after an accident criminal. The injuries sustained by the victim were not inflicted by the flight of the defendant, nor were they aggravated by it. The appellant's flight did not alter the non-criminal nature of the accident and therefore the Court reversed the great bodily enhancement.

This case is: People v. Valdez; 4 DCA; October 12, 2010; G042837.

Wednesday, October 20, 2010

Prolonged Detention of Evidence to Accommodate Drug-Detecting Canines Does Not Violate Fourth Amendment Rights

A District Court judgment was upheld by the Ninth Circuit Court on Monday, October 18th. The Court held that the admission of marijuana evidence, found in a mailed package delayed twenty-two hours as a result of the remoteness of the site from canine investigation, did not violate the defendant's Fourth Amendment rights.

Robert Lozano of Barrow, Alaska, asked a post office manager whether mail was screened for drugs. Suspicious, the manager notified the postal inspector of this inquiry, who authorized a "mail watch" on Lozano's post office box. After the arrival of a large and heavily taped package addressed to "Bill Corner" at Lozano's box, the manager notified the inspector, who requested it be sent to him in Anchorage. The package was mailed on one of two daily flights from Barrow to Anchorage and was alerted by a drug dog. After obtaining a warrant officers found eleven pounds of marijuana inside the package. Lozano picked up the package under a controlled delivery arranged by law enforcement and was arrested and indicted on a single count of attempted possession and intent to distribute. Lozano was found guilty of both attempted possession and intent to distribute.

Lozano appealed that the evidence associated with the mailed package should have been suppressed because the inspector lacked reasonable suspicion to detain the package past it's delivery time. He also held that detention of the package was unreasonable. The Court of appeals affirmed that the inspector did have grounds for reasonable suspicion. A delay had been upheld in the past due to the difficult of travel for drug-detecting canines. The Court also ruled that the retention stemmed from the same concerns and therefore upheld the judgment. Finally, the Court found that diversion of packages during an investigation, when based on reasonable suspicion, is also reasonable.

Judge O'Scannlain added that Lozano did not have a legitimate expectation of privacy in the mailed package and therefore no Fourth Amendment standing to challenge the admission of the marijuana evidence.

This case is: United States v. Lozano; 9th Cir.; October 18th, 2010; 09-30151

Monday, October 18, 2010

Housing Detainees in High-Temperature Areas Constitutes Cruel and Unusal Punishment

The Ninth Circuit affirmed a district court judgment that housing pretrial detainees in a jail where temperatures exceeded 85° F amounted to cruel and unusual punishment under the Eighth Amendment as to detainees who were taking psychotropic medications that made high temperatures a significant health risk.

In 1977, Fred Graves, Isaac Popoca, and others, (collectively, Graves), indigent prisoners in Maricopa County jails in Arizona, sued the county sheriff and the county supervisors (collectively, the sheriff) on behalf of all of the detainees in the county jails. Graves alleged that the conditions of his confinement violated his constitutional rights and that, among other things, the temperature was dangerously high and there was inadequate food.

From 1977 through 1995, the district court adopted the terms of an agreement that addressed each of the detainee's claims and later amended it to reflect changes in the prison population, jail construction, advances in medical treatment, and the evolution of the law. In 1996, the Prison Litigation Reform Act (PLRA) was enacted. The PLRA offers amendments and supplements to the U.S. Code to restrict and discourage litigation by prisoners. In 1998, the sheriff moved to terminate the amended judgment but was denied. In 2001, the appellate court vacated the order and remanded, upon which the sheriff renewed his motion. In 2008 the district court heard evidence pursuant to the PLRA and issued a second amendment that ordered the sheriff house pretrial detainees who were taking psychotropic medications in cells where the temperature did not exceed 85
° F and to provide detainees with food that satisfied the government's dietary guidelines. The sheriff appealed, arguing that the district court improperly order prospective relief without giving him an opportunity to propose different solutions. He also asserted that the ordered relief was not the least intrusive means of correcting the violations. The court of appeals affirmed the district court's judgment.

This case is:
Graves v. Arpaio; 9th Cir.; October 13th, 2010; 08-17601

Monday, October 11, 2010

People v. Camino: Firearm Enhancement Cannot be Imposed when the Deceased is the Principal

The Fourth Appellate District Court affirmed in part and reversed in part a judgment and remanded. The court held that a firearm sentence enhancement was improperly imposed on a defendant who could not have been vicariously liable for the shooting death of a fellow gang member. This is because the gang member who was shot and killed could not have been a principal or an accomplice to his own death.

Jose Camino and a fellow gang member, Rolando Palacios, were involved in a gun fight with a rival gang. Palacios, the lone shooter in Camino's group and the only one who was armed, was shot and killed by a bullet of unknown origin. Police interviewed Camino twice at the police station. Prior to the first interview Camino was not read his rights under Miranda v. Arizona (1996) 384 U.S. 436. In this interview, Camino revealed that he, Palacios, and a third individual had driven into the alley in pursuit of rival gang members. Camino stated that Palacios had stepped out of the car and shot at members of the rival gang. For the second interview Camino was moved to a different room, advised of his rights and interviewed him a second time. Camino described the same events that he had in the previous interview.

At a jury trial, the People conceded that Camino's statements from the first interview were inadmissible but introduced statements from his second interview. The jury convicted Camino of the second degree murder of Palacios (count 1) as well as of attempted murder of one of the rival gang members (count 2) and of street terrorism (count 3). With regard to counts 1 and 2, the jury found that Camino committed those crimes for the benefit of a criminal street gang within the meaning of
§ 186.22 (b)(1) and that Camino vicariously discharged a firearm within the meaning of § 12022.52(c) and (e)(1), an enhancement that mandated a consecutive twenty-year term. Camino appealed.

The court of appeals affirmed in part, reversed in part and remanded, holding that the firearm sentence enhancement was improperly imposed on Camino.
The Court agreed with Camino's argument that the jury instruction regarding gang-related firearm enhancement (CALCRIM No. 1402) as read here was misleading because Palacios could not have been the principal or an accomplice to his own murder. Penal Code §12022.53(e)(1) states that the enhancement applies to any person who is a principal in an offense if it is pleaded and proved both that the person violated Penal Code §186.22(b), a felony for the benefit of a criminal street gang and that any principal in the offense discharged a firearm as specified under §12022.53. Under §12022.53(e)(1), Camino, as a principal in Palacios' murder by virtue of the provocative acts doctrine, satisfied by the first prerequisite because he committed the offense for the gang of which he and Palacios were members. This doctrine holds that if an individual acts in a way that shows disregard for human life and the probable consequence of which is death, that individual may be held responsible for the death(s) that may result.
Yet, under the second prerequisite, Camino was vicariously liable only for the personal discharge of a gun by another principal in the murder of Palacios.
Palacios, the only shooter in Camino's group, could not be found guilty of murder in connection with his own death. Therefore, Palacios was not a principal in the offense or murder that was charged against Camino and the jury's finding that Camino vicariously shot a gun during commission of Palacios' murder was unsupported by substantial evidence. Therefore, it was clear that the jury was misled by CALCRIM No. 1402 and that the error was prejudicial because it could be reasonably assumed that the jury would have reached a result more favorable to Camino if the misleading information had been absent. The 20-year firearm enhancement was removed from Camino's sentence.

This case is: People v. Camino; C.A. 4th, October 4th, 2010; G041887.