Recent Developments in the Law
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.
TAPE RECORDING CONVERSATIONS WITHOUT CONSENT
Case Name: People v. Algire , District: 2 DCA , Division: 4 , Case #: B244557
Opinion Date: 12/17/2013 , DAR #: 16295
Case Holding: The "Truth-in-Evidence" provision of Proposition 8 (Cal. Const., art. I, § 28, subd. (f), par. (2)) abrogated the exclusionary rule in Penal Code section 632, which bars admission of confidential communications that are recorded without consent. At appellant's trial, his stepdaughter Stevie testified that he acted inappropriately toward her and sexually molested her after she moved in with appellant and her mother when she was 17-years-old. In an audio recording admitted into evidence, appellant implicated himself in the sex offense. Stevie had secretly made the recording without appellant's consent. On appeal, he contended that the court erred in admitting the recording. Held: Affirmed. Penal Code section 632, enacted in 1967, prohibits eavesdropping or intentionally recording a confidential communication without the consent of all parties to the communication, and bars all such communications in judicial proceedings. Here, the court determined that the Truth-in-Evidence provision, enacted in 1982, abrogated this exclusionary rule. A later nonsubstantive amendment to section 632 in 1985, addressing cellular telephone communications, did not reinstate the exclusionary rule in section 632, subdivision (d) as there was no legislative intent to lessen the effects of section 28(f)(2). The recording also was not prohibited under the Fourth Amendment as Stevie was not acting as a government officer or agent. The court declined to decide whether section 633.5, which provides an exception to section 632's exclusionary rule by allowing one party to record a confidential "communication for the purpose of obtaining evidence reasonably believed to relate to the commission by another party to the communication of . . . any felony involving violence against the person," applied in this case.
Case Name: Sexton v. Cozner , 9 Cir , Case #: 10-35055
Opinion Date: 5/13/2012 , DAR #: 6237
Where, under state law, IAC claims must be raised in an initial-review collateral proceedings, a procedural default will not bar a federal habeas court from hearing those claims if, in the initial-review collateral proceeding, there was either no counsel or counsel in that proceeding was ineffective. [Note: Companion case isLopez v. Ryan, 12-99001, DAR 6291] Both cases here dealt with claims of ineffective assistance of trial and post-conviction counsel, where petitioner failed to meet procedural requirements. Under Martinez v. Ryan , 132 S.Ct. 1309, decided March 20, 2012, the U.S. Supreme Court held that where, under state law, claims of ineffective assistance of trial counsel had to be raised in an initial-review collateral proceeding, a procedural default would not bar a federal habeas court from hearing a substantial claim of ineffective assistance of counsel if, in the initial-review collateral proceeding, there was no counsel or counsel in that proceeding was ineffective. In both cases here the court found that the claims were not substantial and declined to grant relief.
Case Name: People v. Cervantes , 9 Cir , Case #: 09-50521
Opinion Date: 5/16/2012 , DAR #: 6377
In a Fourth Amendment analysis, mere conclusions of the police officer do not establish probable cause justifying an exception to the Fourth Amendment and an officer's investigatory motive for vehicle impoundment is relevant to the validity of the community caretaking exception. While conducting surveillance on a suspected stash house, officer Henkel observed appellant enter and then leave, holding a large white box. He placed the box in his truck and drove away. Henkel monitored him over the next few hours and eventually asked a police unit to develop a lawful reason to conduct a traffic stop. The police officers stopped appellant for failing to come to a complete stop. The officers impounded the vehicle, searched it and found the white box which contained two kilograms of cocaine. Appellant was arrested and taken into custody only after the vehicle was impounded and the inventory search had resulted in the discovery of cocaine. At a subsequent suppression hearing, Henkel made a conclusory statement that the white box came from a "suspected narcotics stash house." He also testified that appellant's driving was "counter-surveillance," indicating drug trafficking. The appellate court found that Henkel's conclusory statements were akin to an anonymous tip and entitled to little (if any) weight in determining whether there was reasonable suspicion to stop the vehicle. As to Henkel's belief regarding appellant's driving, the described driving was consistent with innocent behavior and insufficient to establish probable cause. Finally, the court noted that the community caretaking exception to the Fourth Amendment did not justify the search. Under the community caretaking exception to the Fourth Amendment, police can impound vehicles that jeopardize public safety and search them per department policy. But an inventory search cannot be a ruse for a general rummaging to discover incriminating evidence and the officers' motive in conducting the impound are relevant. Because the evidence here reflected that the impoundment was a pretext to search for narcotics, the community caretaking exception did not apply. The denial of appellant's motion to suppress was reversed.
Case Name: People v. Shokur , District: 4 DCA , Division: 3 , Case #: G045855
Opinion Date: 5/16/2012 , DAR #: 6368
The trial court does not have jurisdiction to vacate a final judgment via a nonstatutory motion when there are other means of challenging the judgment but the time limits to exercise them have expired. Appellant came to the U.S. from Afghanistan when he was a child and was eventually granted refugee status. In 2005, by his guilty plea, appellant was convicted of possession of marijuana for sale. This offense qualifies as an aggravated felony and is a deportable offense. The plea form submitted to the court advised appellant of immigration consequences pursuant to Penal Code section 1016.5 and the court verbally advised him of the consequences. Appellant subsequently successfully completed his probation and the court granted relief under Penal Code section 1203.4. In 2010, appellant pled guilty to two counts of robbery and was granted probation. In 2011, he was placed in immigration removal proceedings. In the trial court he then filed an action he titled "a nonstatutory motion to vacate the [conviction] for possession of marijuana for sale", which was denied. The appellate court affirmed. Appellant's vehicles for relief were via a state habeas corpus action or Penal Code section 1018, both of which have time restrictions. A nonstatutory motion will not serve as a safety net where the judgment has become final and the time limitations for other remedies have expired.
Case Name: Bracher v. Superior Court (El Dorado County) , District: 3 DCA , Case #: C069958
Opinion Date: 5/16/2012 , DAR #: 6383
In a misdemeanor case, a defendant may appear for court proceedings through counsel and a local rule of court with a blanket policy requiring appearance of a defendant in a misdemeanor case is invalid. Penal Code section 977, subdivision (a) provides that a misdemeanor defendant may ordinarily appear through counsel. In an appropriate case, the court can order a defendant be present for arraignment, at the time of plea and sentencing, but must first make an individual assessment of the case. El Dorado County rule of court 5.11.02 required all defendants to be personally present for the calendared Readiness and Settlement Conference. In this case, real party in interest argued that the appearance was necessary to hold a meaningful settlement conference. The appellate court found this rule to be in violation of the statute, as well as relevant case law, and granted a peremptory writ of mandate directing the county not to apply the rule in misdemeanor cases and to excuse misdemeanor defendants from personally appearing at the readiness and settlement conference where counsel is empowered to represent their interests, absent a finding of good cause in a particular case or a specific statutory exception.
Case Name: People v. Breslin , District: 1 DCA , Division: 4 , Case #: A132443
Opinion Date: 5/16/2012 , DAR #: 6359
Recantation by the victim does not support a motion to withdraw plea. In exchange for a promise of probation and dismissal of other counts, appellant pled guilty to spousal abuse. Prior to sentencing, she moved to withdraw her plea, contending that it was not knowing and intelligent because, at the time she entered her plea, she was unaware that the victim would recant and it was involuntary as a result of IAC, who failed to interview the victim. The appellate court found no abuse of discretion in the denial of the motion. Penal Code section 1018 provides that a defendant may withdraw a guilty plea if good cause is shown. To establish good cause, defendant must show by clear and convincing evidence that she was operating under any factor overcoming exercise of free judgment and that absent such a factor she would not have entered the plea. Here, the trial court did not abuse its discretion in placing little value on the victim's recantation subsequent to appellant's entry of the guilty plea and the minimal weight placed on the recantation was relevant in the trial court's finding that appellant failed to meet her burden of establishing factors overcoming free judgment. The court also found that there was no adequate showing of ineffective assistance as a result of counsel's failure to interview the victim. In view of appellant's history of domestic violence against the same victim and existing protective orders, counsel's failure to interview was viewed as a reasonable tactical decision. Even if counsel was ineffective by failing to interview the victim, appellant failed to show that a reasonable probability existed that absent the alleged ineffectiveness, she would not have pled guilty because the evidence against her was not weak, and she received a favorable resolution with her guilty plea.
Case Name: People v. Chavez , District: 5 DCA , Case #: F061645
Opinion Date: 5/11/2012 , DAR #: 6219
Burglary requires evidence of entry into a building, with building defined as having four walls and a roof. By jury trial, appellant was convicted of conspiracy to commit second degree burglary, amongst other offenses. The evidence presented was that appellant, along with coconspirator Phillips, agreed to steal gasoline from a car in a wrecking yard; Phillips entered the fenced yard and stole gasoline from a junked car; appellant was near the fenced area and helped carry the gasoline away. There was no evidence that Phillips entered a building. Penal Code section 459 defines burglary as entry into a variety of specified buildings and "other building," with the intent to commit larceny or any other felony. California cases dating back to the 1800's require a building to have four walls and a roof; other states with a statute similar to California's do not define burglary otherwise; the plain meaning of a building is anything with walls and a roof. As a burglary does not include a wrecking yard, there was insufficient evidence to support the conviction for conspiracy and it was reversed, with the corresponding eight-month consecutive sentence stricken.