JAIL HOUSE INFORMANTS
This case is a perfect example of why defendants should always remain silent.
Case Name: People v. Gallardo , District: 2 DCA , Division: 7 , Case #: B269034
Opinion Date: 12/6/2017 , DAR #: 11555
Codefendant's incriminating statements made to paid jailhouse informants were not testimonial under Crawford v. Washington (2004) 541 U.S. 123, and their admission did not deny defendants' confrontation rights. Three codefendants, Angel, Michael and Garcia, jointly conducted a drive-by shooting of three rival gang members, one of whom died. The main prosecution evidence at trial was a surreptitiously recorded jailhouse conversation between Angel and two paid police informants who were posing as inmates. Angel was convicted of first degree murder, and Michael and Garcia of second degree murder, and other crimes. They appealed. Held: Reversed. In Crawford, the Court "held that the admission of testimonial out-of-court statements violates a criminal defendant's confrontation rights unless the declarant is unavailable to testify and the defendant had a prior opportunity for cross-examination or waived that right by his own wrongdoing." To qualify as testimonial, the out-of-court statement must be made with some degree of solemnity and must be given and taken primarily for the purpose of establishing some past fact for possible use in a criminal prosecution. Here, Angel's statements to the paid informants were nontestimonial because there was no evidence that he knew or suspected that the informants were government agents or that his comments might be used at trial.
The admission of Angel's jailhouse statements does not violate the defendants' Sixth Amendment right to confrontation under Aranda/Bruton. Relying on People v. Aranda (1965) 63 Cal.2d 518 and Bruton v. United States (1968) 391 U.S. 123, Michael and Garcia argued the admission of Angel's incriminating statements to the informants denied their right to confront Angel, who was a nontestifying codefendant. The Court of Appeal disagreed. The Aranda/Bruton rule declares that a defendant is deprived of his or her Sixth Amendment right to confront witnesses when a facially incriminating statement of a nontestifying codefendant is introduced at their joint trial, even if the jury is instructed to consider the statement only against the declarant. However, Aranda and Bruton predate Crawford, "which narrowed the scope of the right to confrontation to testimonial statements." In People v. Cortez (2016) 63 Cal.4th 101, the California Supreme Court recognized that the United States Supreme Court has unequivocally held the confrontation clause applies only to testimonial statements. Thus, defendants' confrontation clause claim fails because Angel's statements to the informants were not testimonial.
The trial court committed prejudicial error when it admitted Angel's jailhouse confession identifying Garcia as the shooter and Michael as the driver under the hearsay exception for declarations against interest. Michael and Garcia argued that Angel's statements identifying them as the shooter and driver of the car were improperly admitted as a declaration against Angel's penal interest (Evid. Code, § 1230) because they effectively served to minimize Angel's role in the crimes and to shift blame to them. The Court of Appeal agreed. To qualify an out-of-court statement as a declaration against interest, the proponent must show the declarant is unavailable, that the declaration was against the declarant's interest when made, and was sufficiently reliable to warrant admission despite its hearsay character. Those portions of the declarant's statement that are self-serving or blame shifting do not qualify for admission under this hearsay exception. Considering the context in which Angel's statements were made, his assertions that Garcia was the shooter and that Michael was the driver were too self-serving and unreliable to qualify as statements against his penal interest because, although he admitted knowledge of the crimes, he placed the major responsibility on his codefendants. The trial court abused its discretion by admitting the statements. The error was prejudicial because it directly identified the codefendants as the perpetrators. The rest of the prosecution evidence was circumstantial at best. There is a reasonable probability the jury would have reached a different result had the statements been excluded, requiring reversal of the judgments against Garcia and Michael.
Angel's jailhouse statements were not inadmissible under Penal Code section 4001.1. Angel argued his entire jailhouse conversation should have been excluded under section 4001.1, subdivision (b), which prohibits a law enforcement agency and in-custody informants acting as police agents, from taking any action that is deliberately designed to elicit incriminating statements. However, even if section 4001.1 applies to informants only posing as inmates, it does not apply to conduct intended to elicit incriminating remarks about uncharged offenses. The Legislature intended section 4001.1 to codify case law that had applied Massiah v. U.S. (1964) 377 U.S. 201, which held that once a defendant's Sixth Amendment right to counsel has attached, he is denied that right when federal agents deliberately elicit incriminating statement from him in the absence of his attorney. However, no Sixth Amendment violation occurs where the incriminating statements pertain to uncharged offenses. Angel's jailhouse statements were made prior to the time he was charged with the offenses in this case, so section 4001.1 did not apply.
The full opinion is available on the court's website here: http://www.courts.ca.gov/opinions/documents/B269034.PDF
LICENSE SUSPENSION FOR DUI
It may sound unfair, but did you know that there are TWO suspensions
in a typical DUI case? The DMV does the first suspension even if you
are not convicted in court. Then there is a second suspension of the
driving privilege if you do indeed get a DUI conviction. The strategy
to avoid or reduce the pain may include negotiating a "wet reckless"
and/or installing the ignition interlock device.
There are lots of complicated issues so call for more advice.
CAN THE JUDGE OR DA KEEP MY FAMILY OUT OF THE COURTROOM?
If you are accused of a crime, you certainly want your loved ones there for moral support. Can the DA or Judge kick them out? Probably not. See this case.
Case Name: People v. Scott , District: 2 DCA , Division: 1 , Case #: B270426
Opinion Date: 4/4/2017 , DAR #: 3259
Exclusion of defendant's family members during a portion of trial violated defendant's right to a public trial. Defendant was charged with six robbery-related counts, each count pertaining to a different victim. During trial, the mother of one victim reportedly received threats over the telephone that the minor victim's testimony would "cause problems." The court granted the prosecution's request to exclude appellant's family members during portions of the trial, citing "mounting evidence" of witness intimidation. Defendant appealed. Held: Reversed in part. A criminal defendant's right to a public trial includes the right to have friends and relatives present during the proceedings. Under Waller v. Georgia (1984) 467 U.S. 39, four requirements are necessary to justify exclusion from the courtroom: (1) the existence of an overriding interest that is likely to be prejudiced absent the closure; (2) the closure is narrowly tailored; (3) no reasonable alternatives to closing the proceeding are available; and (4) the trial court must "make findings adequate to support the closure." The protection of witnesses from threats, harassment, or physical harm is an overriding interest deserving of protection. However, here there was no substantial evidence connecting appellant's family to the reported threats. The prosecution initially stated the phone threats had not been connected to appellant or any person, and when the victim's mother disclosed that she knew who made the threats but was afraid to identify the person, the court did not inquire further. Although there was evidence of improper contact between appellant's father and a prospective juror, the nature of that contact was not intimidating or threatening. Given the court's failure to more thoroughly investigate the claim of witness fear and intimidation, and the lack of evidence connecting appellant's family to the purported threats, the first element of the Waller test was not met, and the exclusion of appellant's family members was unjustified.
CAN THE COPS SEARCH MY CELL PHONE?
Case Name: U.S. v. Lustig , 9 Cir , Case #: 14-50549
Opinion Date: 7/29/2016 , DAR #: 7762
Good faith exception to exclusionary rule applies to search of arrestee's cell phones because binding appellate precedent at the time of the search provided a reasonable basis to believe the search was constitutional. An officer arresting Lustig searched several cell phones found in Lustig's pockets. After his motion to suppress evidence was denied, Lustig pleaded guilty to several federal offenses. He appealed. Held: Affirmed. In Riley v. California (2014) 134 S.Ct. 2473, the Court held that a warrantless search of an arrestee's cell phone violates the Fourth Amendment. Thus, the searches of the cell phones found in Lustig's pockets were unconstitutional. However, when police act with an objectively reasonable good-faith belief that their conduct is lawful, the rationale behind the exclusionary rule loses much of its force and the rule does not apply. In Davis v. United States (2011) 564 U.S. 229, the court held that such a reasonable, good-faith belief exists when searches are conducted in "objectively reasonable reliance on binding appellate precedent." The search of Lustig's pocket cell phones was conducted prior to the decision in Riley. At that time, U.S. v. Robinson (1973) 414 U.S. 218, held that a full search of the person incident to arrest is an exception to the warrant requirement and reasonable under the Fourth Amendment. Thus, Robinson constituted binding appellate authority that made the search of Lustig's pocket phones reasonable.
IF THE COPS ARE CHASING ME, DOES IT MATTER IF THEY ARE WEARING A UNIFORM?
Case Name: People v. Byrd , District: 3 DCA , Case #: C077269
Opinion Date: 7/29/2016 , DAR #: 7772
Conviction for evading police (Veh. Code, § 2800, subd. (a)) reversed because there was no evidence that the pursuing officers wore a distinctive uniform. A jury convicted Bryd of first degree murder (Pen. Code, § 187, subd. (a)), gun use (Pen. Code, § 12022.53, subd. (b)) and felony evading police (Veh. Code, § 2800.2, subd. (a)). On appeal Byrd challenged the sufficiency of the evidence of the evading conviction. Held: Evading count reversed. "A person violates Vehicle Code section 2800.2 if he flees or attempts to elude a pursuing peace officer in violation of section 2800.1 and the pursued vehicle is driven in a willful or wanton disregard for the safety of persons or property." Section 2800.1 has four elements regarding the police vehicle and officers. The police car must (1) exhibit at least one red light, (2) be sounding a siren as reasonably necessary, (3) be distinctively marked, and (4) be driven by a peace officer who is wearing a distinctive uniform. Here, no evidence was presented that the pursuing officers wore a distinctive uniform. Although Byrd admitted that he knew the police were chasing him and he chose to evade them, this was insufficient to prove the distinctive-uniform elements of the offense, requiring reversal. [Editor's Note: In a dissenting opinion, Justice Hull concluded that Byrd's admission that he intended to evade the police sufficiently proved the offense.]
RIGHT TO REMAIN SILENT
The police brought this defendant in for questioning on an accusation that he molested his step-granddaughter. The police advised the defendant of his Miranda rights, then asked, "Okay, now having that [i.e., your Miranda rights] in mind, do you wish to talk to me?" Garcia's complete answer was "no." Incredibly, the Cal. courts found NO Miranda invocation, claiming it was "equivocal under the circumstances." The Ninth Circuit reverses, saying that when the defendant said "no," he "actually meant no.'" The court says, "Quite literally, however, the officers did not take 'no' for an answer." The court concludes, "The Supreme Court has repeatedly made clear that when a suspect simply, unambiguously, and unequivocally says he wants to remain silent, police questioning must end at once." Reversed.
Garcia v. Long; No. 13-57071; 12/21/15; 9th Cir. fed C/A
WHAT IS AN ARREST ?
This is not an easy question to answer. See this case for some of the factors to consider.
Case Name: U.S. v. Edwards , 9 Cir , Case #: 13-50165
Opinion Date: 7/31/2014 , DAR #: 10115
911 caller provided officers reasonable suspicion to stop defendant; the stop did not become an arrest when officers drew guns on defendant and handcuffed him. Police received a 911 call from an unidentified man reporting that a "young black male" was shooting at passing cars, including the caller's. Officers responded to the area and stopped defendant and another man. Defendant was searched and a gun was found. After his motion to suppress was denied, he pled guilty to being a felon in possession of a gun (18 U.S.C. § 922(g)(1)). He appealed. Held: Affirmed. "The totality of the circumstances determines whether and when an investigatory stop becomes an arrest." Two components of the detention are examined: (1) the intrusiveness of the stop (i.e., how aggressive were the officers; how much was defendant's liberty restricted), which is considered from the perspective of the person stopped; and (2) the justification for the officers' actions, which is determined from the officers' perspective. Here, the officers actions were intrusive—they drew their guns, forced the defendant to kneel, and handcuffed him. But this does not automatically convert an investigatory stop into an arrest that requires probable cause. The officers' conduct was reasonable because defendant was the only person in the vicinity of the shooter's reported location who fairly matched the 911 caller's description and the 911 caller provided specific facts regarding the shooter's clothing, height, and age. The officers had reason to believe defendant could be armed and dangerous, having possibly just committed a violent crime. Their concern for their safety justified the tactics they used to stabilize the situation before investigating further.
The officers had reasonable suspicion to stop defendant. Brief investigatory stops are permissible when officers have a particularized and objective basis to suspect a person of criminal activity. When evaluating investigatory stops resulting from telephone tips it must be determined whether the tips "exhibited sufficient indicia of reliability to provide reasonable suspicion to make the investigatory stop." In Navarette v. California (2014) 134 S.Ct. 1683, the Court held an anonymous call provided reasonable suspicion for a stop because: (1) the caller claimed to be an eyewitness to dangerous activity; (2) the caller reported the event soon after it occurred; (3) the caller used the 911 system, which can be traced to origin, guarding against false reports; and (4) the caller created reasonable suspicion of an ongoing and dangerous crime—drunk driving. Similar to Navarette, here the caller used the 911 system, gave specific details regarding the shooter, had eyewitness knowledge of the shooting, and reported an ongoing emergency situation. This provided officers with reasonable suspicion to stop defendant.
LIMITATIONS ON GREAT BODILY INJURY ALLEGATIONS
Case Name: People v. Cook , District: 4 DCA , Division: 2 , Case #: E054307
Opinion Date: 12/12/2013 , DAR #: 16159
Case Holding: A Penal Code section 12022.7, subdivision (a) (great bodily injury) enhancement may not be imposed with respect to a victim who was the subject of defendant's manslaughter conviction.Appellant was convicted of three counts of vehicular manslaughter (Pen. Code, § 192, subd. (c)(1)) as to victims Williams (count 1), Giambra, and Page. The jury found true three allegations attached to count 1 that appellant had personally inflicted great bodily injury upon Giambra, Page, and Valentine (Pen. Code, § 12022.7, subd. (a)). The court struck punishment for the enhancements as to Giambra and Page, but imposed a three-year consecutive term for victim Valentine. Held: True findings as to Giambra and Page reversed. Section 12022.7, subdivision (g) states, "[t]his section shall not apply to murder or manslaughter . . . . Subdivisions (a), (b), (c), and (d) shall not apply if infliction of great bodily injury is an element of the offense." The bar in subdivision (g) is limited to imposition of an enhancement with respect to a victim for whom the defendant had already been convicted of manslaughter. As Valentine was not the subject of a manslaughter conviction, the sentence for the enhancement was correct. Imposition of the other two enhancements was barred because Giambra and Page were the subjects of appellant's manslaughter convictions and, additionally, great bodily injury is an element of the offense (disagreeing with People v. Julian (2011) 198 Cal.App.4th 1524). Further, the court rejected the argument that subdivision (g) does not apply to stayed enhancements.
Jurors' use of toy cars to reenact collision was not misconduct. Following the jury verdict, appellant filed a petition to disclose juror information. Defense counsel claimed good cause for the disclosure on the basis of information received that one of the jurors used toy cars to reenact the vehicle collision resulting in the deaths. The trial court denied the petition, finding no good cause. Held: Affirmed. For disclosure of juror information to support a motion for new trial based on juror misconduct, there must be sufficient showing that misconduct occurred. Here, the use of the toy cars did not constitute misconduct as it was not a prohibited investigation that went beyond the evidence presented at trial.
LIMITATIONS ON POLICE ABILITY TO SEARCH CAR
Case Name: People v. Bates , District: 6 DCA , Case #: H037910
Opinion Date: 12/12/2013 , DAR #: 16166
Case Holding: A vehicle detention that violates the Fourth Amendment is not made lawful simply because police learn that one of the passenger's is a probationer with a search condition after the fact. While investigating a report of a stolen cell phone, Deputy Sheriff Gidding learned the following information: (1) the reported theft occurred two hours earlier; (2) the suspect was a young black male wearing blue; (3) the suspect may have been Marcus Bates, a probationer living at a nearby apartment complex; (4) the Bates' family had a gold van, which the deputy had been instructed to watch for; and (5) there was a report of someone matching the suspect's description walking away from Bates' apartment complex toward a mobile home park. Deputy Gidding went to the mobile home park and stopped a tan car driving toward the park's exit. He later testified that his sole reason for the stop was that "there were people in the car." The deputy found Bates in the car and located evidence that appellant moved to suppress. The trial court denied the motion. Held: Reversed. Considering the facts in the totality of the circumstances, Deputy Gidding had no reasonably articulable suspicion that either the occupants of the tan car or the car itself may have been involved in criminal activities. The detention was based solely on generalized suspicion and was unlawful as a result. Appellant's probation search condition did not make the stop reasonable because Gidding did not know appellant was in the vehicle when he stopped it. The probation condition also was not an intervening circumstance that sufficiently attenuated the Fourth Amendment violation. Disagreeing with People v. Durant (2012) 205 Cal.App.4th 57, the court found that discovery of a probation condition after the fact will not necessarily sanitize the unlawful detention. This is particularly true where the detaining officer, without knowledge of the condition, unlawfully seizes a defendant in the hopes that something might turn up.