Recent Developments in the Law
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.