Fully Briefed

Possession of a damaged gun barrell is sufficient to support a conviction for possession of a firearm by felon

Holding:  In People v. Arnold, the Third District Court of Appeal held that possession of only a barrel of a firearm by a felon is sufficient to support a conviction for violation of section 12001 of the Penal Code [possession of a firearm by a felon].  Apparently, the defense contention on appeal was that possession of both a frame and a barrel was required.  The court rejected this argument, reasoning that felon-in-possesion-of-firearm statute (sec. 12001) defines the term "firearm" as including, among other things, a frame / receiver.  In the court's view, the term "including" meant to expand the definition of a firearm, not to limit it to the items specifically listed. 

The Court also held that the evidence was sufficient despite the fact that the barrell possessed by the defendant were badly damaged in a fire.  The court reasoned that the legislative intent behind section 12001 was to "prohibit possession by an ex-felon of an inoperable firearm, that is, one which although designed to be used as a weapon is presently incapable of being fired."

Prosecutorial delay, during which a favorable defense witness dies, may violate California constitutional due process protections and speedy trial rights

People v. Conrad (3d Dist. 2006)

Facts re: offense:  The defendant is a registered sex offender.  After he was released from a state hospital in 2003, he first lived in a motel.  First, he wanted to move in with his daughter, but his parole office ("PO") said "no" because there were a lot of children residing in her complex.  So, instead, the defendant got permission to live with his ex-wife.  Defendant did so and registered at that address. 

However, subsequently, when his PO tried to contact him there, he discovered that defendant was not there. The defendant's ex-wife told PO that she thought the defendant had moved out and went to live with his daughter, though she was unsure because all his possessions were still at his ex-wife's house.  PO called defendant's daughter and told her the defendant was prohibited from living there.  Defendant called his PO later that same day and left a message.  PO had defendant arrested that same day at his daughter's apartment.

At some point, PO talked to defendant's brother Willis who told him that after defendant left his ex-wife's house, he had been visiting him for a few days.

Facts re: delay in prosecution: After the defendant was arrested on 1/23/04, the DA told him that instead of charging him, he would instead rely on the decision of the Board of Parole re: parole revocation (presumably, the PO moved to violate defendant's parole).  But on 3/9/04, the DA charged the defendant with failure to register as a sex offender after changing residences, as well as the violation of the "Three Strikes" law/

On 5/5/04, after a parole revocation hearing, defendant is sent back to prison for 9 months.  Defendant's brother Willis dies 6/27/04.  Defendant's gets arraigned on the sex registration complaint on 6/28/04.  Defendant moves to dismiss the indictement on the ground the prosecution's delay in filing the complaint and arraignment violated his statutory and constitutional speedy trial rights by depriving him of the testimony of a key witness (his brother) that he did not actually move out of his ex-wife's house.  The trial court grants the motion and the People appealed.

Holding: The Third District reverses and remands, with directions.  The Court rejects defendant's federal speedy trial argument because the defendant's asserted prejudice (loss of the brother's testimony) occured before filing of the complaint, and, thus, the federal speedy trial rights did not attach. 

However, as to state constitutional speedy trial claim, the Court holds that the defendant had shown prejudice from the delay sufficient to justify a remedy.  The prejudice is not the loss of the brother's testimony b/c there is no evidence as to what he would have actually testified to.   Rather, the prejudice is a loss of a hearsay statement by the PO that defendant's brother Willis told the PO about defendant's visit after he left his ex-wife's house.  While that statement would not have conclusively demonstrated innocence, it would have been helpful to the defense theory that defendant had not changed residences, but was merely visiting relatives.  Also, prejudice had to be balanced against the utter lack of justification for the post-accusatory delay in arraigning defendant. 

Nevertheless, in the Court's opinion, dismissal was too harsh of a remedy.  Citing People v. Zamora, 28 Cal.3d 99, 100, the Court reasoned that severity of the remedy depends on the materiality of the evidence lost to the defense.  Here, the subject statement would have been helpful to the defense, but would not have conclusively established defendant's innocence.  Thus, the Court concluded that the proper remedy is a jury instruction that defendant stayed with his brother for a few days between the time he left his wife's house and his arrest.  The instruction should also inform the jury that the defendant's brother was unavailable to testify concerning that fact b/c he died during the time the prosecution unjustifiably delayed filing the complaint against the defendant.

Testimony of expert on prostitute behavior found admissible

People v. Brandon was decided by Div. 5 of the 2nd District.  Here is a summary of a relevant portion of that decision.

Holding: the trial court did not abuse its discretion in allowing testimony of an expert with a Ph.D in social psychology, a law degree, and years of experience in working with children victimized by prostitution regarding behavior patterns of prostitutes (i.e, why they would lie and / or change their testimony).  The court reasoned that based on her extenstive graduate education and years of experience in researching a problem of child prostitution, the expert was qualified to testify regarding patterns of prostitute behavior.  The court reasoned further that while the subject of prostitute behavior was not wholly outside common experience of jurors, the expert's education and experience still made her testimony helpful to the jurors.  The court also reasoned that the testimony was relevant to disabuse the jurors about some of their common misconceptions about prostitute behavior, much like testimony of experts in child molestation and domestic violence cases.

The court also concluded that the expert's testimony was not improper profile evidence (evidence that a particular type of criminal acts only in a particular way matching the defendant's behavior).  The court reasoned that profile evidence is subject to exclusion only when its probative value is substantially outweighed by the danger of unfair prejudice - i.e., when the generalized behavior described by expert is consistent with both criminal and innocent conduct.  Here, "there is nothing about the relationship between a pimp and a prostitute which involves pimping, pandering, conspiracy, sexual assault, and other violence as a means to compel obedience that is consistent with innocent conduct. (People v. Smith, supra, 35 Cal.4th at p. 358.)"

Importance: in light of Justice Armstrong's concurrence on the issue of relevance of this expert's testimony to the juror's understanding of the trial testimony regarding behavior of prostitutes, there may be room to challenge admissibility of such expert evidence in future cases. 

Failure to investigate and present evidence of BWS amounted to prejudicial ineffective assistance of counsel

In re Nourn, a published decision of the Fourth District (Div. 1) is a very difficult and unusual case.  Unlike most of our IAC situations, where trial counsel is completely inept and / or unaware of a cruicial issue, here, trial counsel was at least aware of the potential issues.  However, he appears to have made a tactical decision in selecting a defense, which no other reasonable attorney would have made.

Facts: The facts of this case would make David Lynch proud. 

Defendant was convicted of a first-degree murder (on aiding-and-abetting theory) and arson.  Apparently, when she was 17, the defendant (of Cambodian descent) met online, went out and had sex with a gentleman by the name of Barker (who is Vietnamese).  Barker was 34, with a wife and child. 

About a year later, the defendant went out on a date, and has sex with her boss, Stevens.  When she returned home, she saw Barker's car outside and knew she was in trouble.  Eventually, she confessed to Barker that she had sex with Stevens.  Barker declared that the defendant had been violated, is used goods, and, therefore, he is going to kill Stevens.

On the way to meet Stevens, after defendant and Barker have sex in the back of his car, he suggested they should break up.  Defendant begged him not to do it and Barker declared that the only way for that to happen is either she or he will kill Stevens.  Defendant stated that "[she] would do anything he says."  Thereafter, defendant and Barker lured Stevens out of his apartment, and Barker shot Stevens in the head from close range.  Defendant helped Barker to dispose of Stevens' body and car by burning it because Barker told her to do it.   

Defendant and Barker continued to date for another 3 years without telling anyone about the murder.  The murder remained unresolved until Defendant finally contacted the police in San Diego and confessed. 

Holding:  A two-justice majority held that trial counsel rendered ineffective assistance by not investigating and presenting the Battered Woman's Syndrome defense ("BWS").  The court reasoned that undisputed declarations of several psychiatrists presented in support of the habes petition showed that defendant clearly had symptoms of BWS victims and BWS contributed to her participation in killing Stevens and arson of his body.  The majority reasoned further that undisputed declarations of prominent criminal defense attorneys showed that in light of the facts and circumstances of the crime, a reasonable trial lawyer would have sent the defendant to be examined by a psychiatrist to determine the viability of the BWS defense.  Absent such careful investigation, trial counsel was in no position to make a tactical decision not to rely on BWS. 

The majority held further that counsel's performance was prejudicial because BWS evidence would have been admissible as to several critical issues.  For example, it would have supported a duress instruction, which the trial court refused to give; the defense at trial was apparently duress.  It would have also been admissible to show the defendant lacked premediation and deliberation to commit a 1st-degree murder.  Finally, had defendant chosen to testify, the evidence would have been admissible to bolster her credibility. 

Importance:  If there is a lesson to be learned from this difficult case, it is that a criminal defense attorney handling either a trial or an appeal must thoroughly investigate every potential issue before discarding it.  It seems that the biggest theme driving the majority's analysis is that trial counsel had enough reasons to send the defendant to be examined by a psychiatrist and no reasons not to do it.   Had counsel sent the defendant to be so examined, and rejected BWS after knowing the opinions of psychiatrists, perhaps the Court might have been inclined to give counsel's choise of defense more deference.  However, an uninformed choise cannot be fairly characterized as a tactical choice.   

One other thing to take from this case is that appellate courts may still be willing to go beyond trial counsel's declaration that his actions were tactical, at least when it appears that the action was taken before all the facts were in.

No patdown search for identification purposes

In People v Garcia, 2/6 reverses the trial court's denial of a suppression motion, declining to expand the scope of Terry v. Ohio.  A police officer in Santa Paula stopped Mr. Garcia for, I kid you not, an inoperable bicycle lamp.  (VC, sec. 21201, subd. (d).)  When the officer asked for id, the defendant could not find any and also uttered the word "probacion" in Spanish, the officer decided to pat the defendant down for id.  In the course of that pat down, the officer found crystal meth in the defendant's pocket.

Holding:  the police cannot conduct a protective pat down of a suspect in order to find his or her identification.  Terry v. Ohio only permits a patdown of a suspect when an officer has reasonably articulable suspicion that the defendant is armed and the patdown is aimed at discovery of such weapons.  The U.S. Supreme Court has never expanded a Terry pat down to search for identification and 2/6 declined to do so in this case.

Importance:  The main point to take from this case is that Terry is still alive and kicking and not every pat down is going to qualify as a protective sweep for weapons. 

Interestingly, the court provides some guidance to the police as to how they should have handled the situation:

"What should the officer have done? It is easy to sit in an ivory tower and criticize an officer's actions in the field without providing some constructive guidance for the future. Here, the officer's job was made more difficult because of the language barrier. He should have called for assistance from a Spanish speaking officer, who we presume was available. The officers then could have questioned appellant and perhaps ascertained his identify without resorting to the use of force, handcuffs, and search.  Depending on the answers received, probable cause for arrest may have developed. Or perhaps, the officers could have ascertained appellant's true name and written a citation. Perhaps appellant would have even consented to a search of his person ifsomeone had asked him in Spanish. We will never know what could have happened.  What we do know is this: there is no legal justification for a patdown search for identification."

I suspect, and I am purely editorializing here, that the officer was aware of all these options, but decided to chance it rather than getting several additional officers involved in what seemed to him a routine traffic stop.

People v. Trujillo

People v. Trujillo (Cal. Supreme Court 2006).  Maj - Moreno (George, Kennard, Werdegar); Dis. & conc. - Baxter(Chin, Corrigan).

Holding: (1) The People may appeal, pursuant to Penal Code section 1238,subdivision (a), the trial court's "unlawful" determination that a prior conviction was not a strike; (2) In determining whether a prior conviction constitutes a strike, the trial court may only consider the facts admitted by the defendant as a part of the plea bargain and may not consider any statements made in a post-plea probation report.

Implication:  The 2nd portion of the decision seems to be the most important.  When the defendants pleas guilty or no contest to a particular offense that does not constitute a strike, he or she need not worry about the prosecution in subsequent cases trying to use any post-plea statements made to the probation officer in a prior case to transform that prior plea into a strike.  The rationale for the holding is, in part, that in determining the nature of the prior, the court should look at the record of conviction, but no further.  The majority contrasted a  post-plea statement and a preliminary hearing statement, noting that the latter was a statement before the plea was taken and thus would constitute a part of the record of a prior conviction.  The majority was concerned about allowing the prosecution to threaten criminal defendants with relitigating the facts of the same conviction, thereby violating the double-jeopardy protection and the right to speedy trial.   

Also, while the majority does not say so, an additional policy interest supporting its decision is that it promotes the goals of rehabilitation by allowing criminal defendants to be more candid with the probation officer during a presentence interview without the fear that their statements would be later used to increase their sentence under the Three Strikes Law.