THE WEEK’S CASES: for the week ending December 9, 2016
by Al Menaster, Deputy Public Defender, Los Angeles County Public Defender’s Office.
NO SEARCHES INCIDENT TO CITATIONS
The horrible McKay (27 C4th 601) case has been a thorn in our side for years. The police physically arrested Mr. McKay for a bicycle infraction, searched him incident to the arrest, and found drugs. Cal. law bars arresting a person for a Vehicle Code infraction (with exceptions). But we lost anyway. The Cal. Supremes (relying on Moore, 553 US 164) said that federal law didn’t require suppression even though under Cal. law, the police couldn’t lawfully take McKay into physical custody for the infraction. This time we win, substantially limiting McKay. The court says that there’s no “search incident to citation. If an actual arrest takes place, a search incident to that arrest is allowed if it is supported by federal Fourth Amendment jurisprudence, more restrictive state law notwithstanding.” The court specifically rejects the AG’s claim that “probable cause to arrest will always justify a search incident as long as an arrest follows.” The court also rejects the AG’s claim that since the police could have made an arrest, a search can’t result in suppression of the evidence. What this means is that if the police do arrest for a citation, even though that’s illegal, the resulting search doesn’t result in suppression. But if they don’t make an actual arrest, they can’t search. The court also rejects a good faith claim, saying that no reasonably well-trained officer would think he could make an arrest here. The court further admits that Diaz (51 C4th 84), permitting the police to search without a warrant on a cell phone seized incident to a custodial arrest, has been overruled by Riley (134 S.Ct. 2473). I realize that this is complicated and doesn’t make much sense, but the new rule gives us a way to win these cases, so we’ve got to master this. A custodial arrest permits a search; no custodial arrest, no search.
People v. Macabeo; S221852; 2016 WL 7048010; 2016 Cal. LEXIS 9586; 12/5/16; Cal. Supremes
FAILING TO TESTIFY AND PRESERVING AN IMPEACHMENT ISSUE FOR APPEAL [More…] »
Annual Two-Day Juvenile Defense Seminar – Friday & Saturday, January 20 & 21, 2017
The California Public Defenders Association presents…
A Special Two-Day Juvenile Defense Seminar
Friday & Saturday, January 20 & 21, 2017
The Portola Hotel and Spa – Two Portola Plaza, Monterey, California 93940
(Please take note of the new meeting facility if you have attended this program in the past)
For lodging reservations and registration information, see below
Arthur L. Bowie, Supervising Assistant Public Defender, Sacramento County
Martin F. Schwarz, Senior Assistant Public Defender, Orange County
This is CPDA`s 26th annual two-day seminar devoted entirely to juvenile law issues. One day will focus on dependency law, the next day on delinquency law. The program will feature discussions and lectures by some of the most experienced attorneys and experts practicing in the field of juvenile law issues. Written materials are included in the price of registration. This program qualifies for California MCLE participatory credit (see below).
DAY ONE – JUVENILE DEPENDENCY – FRIDAY, JANUARY 20, 2017 [More…] »
Trial Counsel’s Responsibilities to Youth Offenders in Light of Franklin & Perez – Sat., January 14, 2017
The California Public Defenders Association presents…
Trial Counsel’s Responsibilities to Youth Offenders in Light of Franklin & Perez
Saturday January 14, 2017
At The Hyatt Regency Mission Bay
1441 Quivira Road, San Diego, California 92109
Laura Arnold, Deputy Public Defender, Riverside County
Bart Sheela, Deputy Alternate Public Defender, San Diego County
This important half-day program was added to CPDA’s training calendar this year in direct response to the landmark order in last May’s California Supreme Court case, People v. Franklin. This case, creates an affirmative duty for trial counsel to create and submit “a time capsule” regarding the client’s “youth factors”, to be opened, considered, and given “great weight” when the client is being considered for Youthful Offender Parole after 15 or more years of confinement. This duty applies to all clients who committed a crime when they are or were younger than 23, which will result in an indeterminate, non-LWOP, sentence or even a determinate term sentence which will result in at least 15 years of confinement. What exactly is our duty, how do we fulfill it, and why is it likely to matter? Please join us either ONLINE (self-study credits) via the CPDA members website live streaming, or IN PERSON (participatory credits) in sunny San Diego, to learn how to identify your YOP-eligible clients, how to represent and advise them, and what exactly we’re supposed to have been doing ever since Franklin was decided.
PROGRAM 567 – SATURDAY – JANUARY 14, 2017
Trial Counsel’s Responsibilities to Youth Offenders in Light of Franklin & Perez [More…] »
Criminal Law Case Summaries: October-November 2016
Criminal Law Case Summaries: 2016
by Gary Mandinach, Attorney at Law, California Appellate Project, Los Angeles, California
1. People v. Cady (2016) Cal.App.5th , reported on October 24, 2016, in 2016 Los Angeles Daily Journal 10445, the Fourth Appellate District, Division 1 held that driving under the influence of alcohol causing injury, section 23153, subdivision (a), is a lesser included offense of driving under the combined influence of alcohol and a drug causing injury, section 23153, subdivision (f). Additionally, the Court of Appeal found that the trial court did not err in failing to sua sponte on vehicular manslaughter while intoxicated, section 191.5, subdivision (a), as a lesser included offense of gross vehicular manslaughter while intoxicated, section 191.5, subdivision (b) . Counsel made a deliberate decision not to seek such an instruction and told the court the defendant agreed with that decision, and there was no evidence from which a jury might conclude that defendant committed the lesser offense.
2. People v. Johnson (2016) Cal.App.5th , reported on October 24, 2016, in 2016 Los Angeles Daily Journal 10462, the Fourth Appellate District, Division 2 held that the trial court erred by not instructing the jury, in a retrial on second degree murder, on which the first jury hung, on prior convictions for manslaughter, section 191.5, subdivision (a), and hit and run, Vehicle Code section 20001, subdivision (b)(2), which he suffered in the first trial, during the retrial after the hung jury on the second degree murder count. (See People v. Batchelor (2014) 229 Cal.App.4th 1102.) The trial court=s instruction during the retrial on the second degree murder, that defendant had been convicted of two of the three charges brought by the district attorney, and that the jury=s task would be to address the one count that was left unresolved in the first trial, impermissibly and prejudicially allowed jury to speculate as to what the two unknown charges from the previous trial might have been. This left open the distinct possibility that defendant would, absent a conviction for murder, avoid any conviction holding him directly accountable for the death of the victim.
3. People v. Superior Court (Rangel) Cal.App.5th , reported on October 24, 2016, in 2016 Los Angeles Daily Journal 10481, the Fourth Appellate [More…] »
Proposition 64 – The Adult Use of Marijuana Act of 2016 – Resource Center for Defenders
Most recent update: November 10, 2016 | 11:03 am
First published November 10, 2016. Updated as additional documents become available.
This Proposition 64 Resource Center (The Adult Use of Marijuana Act of 2016), will be seeing many resources added over the next few weeks, so be sure to subscribe to the Defender411 notices for this website if you’d like a notice each time something is posted on the site, including to this resource center.
(Note: You must log in (over on the right side of this page) to view this members-only content (see log-in box on upper right panel of this page) If you have problems logging in, you can email tech support at claratech @ cpda.org All practice tips and practice samples are on this site but members cannot access them until fully logged in on this site, which you may do by using the login box on the right side of this page. If you have not renewed your membership, you can do that via this link, or you can call during business hours 1.800.538.4993 x 304 and renew by phone to gain access to this members website.
New mobile apps for Claranetters and CPDA members – Download from the Apple &/or Google Play store
The CLARANET App.
The Claranet Subscribers App was created to help subscribers navigate the network of services available which includes a motions bank, articles and booklets bank, criminal practice codes, a huge library of self-study resources, a vBulletin and Yammer based forums, a list server (however, this app does not involve the email list server system – email programs are best left to handle that, presently).
The app also enables subscribers who use the new app to conduct direct messaging (one-to-one), and group messaging. The app also includes some other handy features such as a calendar that includes links to register for CPDA continuing legal education events held throughout the state. It’s easy to install and there’s no fees associated with use of the app as long as one maintains current membership in CPDA, and pays the additional annual subscription fee for the Claranet service ($175/year).
Two download options for the Claranet App:
1. Download from the Google Play Store:
2. Download from the Apple App Store: