Sunday, July 24, 2016




Appeal from a Judgement of the Superior Court
in and for the County of
Hon. , Judge

People v. Wende (1979) 25 Cal.3d 436

By Appointment of the Court
under the California Appellate Project
Independent Case System












This is an appeal from a judgement and sentence following a plea of guilty, as authorized by Penal Code section 1237.5.
By amended information, filed in Los Angeles County Superior Court, on 25 June 2015, appellant was charged with: Count I, murder (Pen. Code § 187, subd. (a)); evading an officer and causing death (Veh. Code, § 2800.3, subd. (b)); Count III, possession of a firearm with a prior conviction (Pen. Code, § 29800, subd. (a)(1)1); and Count IV, leaving the scene of an accident (Veh. Code, § 20001, subd. (a)). (CT 188-191.)
With respect to all counts, the information alleged a prior serious/violent felony strike (Pen. Code, §§ 667, subd. (d)/1170.12, subd. (b) and a prior prison term based on the same conviction (Pen. Code, § 667.5, subd. (b)) With respect to Counts I, II and III, the information alleged a prior serious felony enhancement (Pen. Code, § 667, subd. (a)(1).)2
By negotiated disposition and upon advisement and waiver of rights and stipulated factual basis, Count I was dismissed and appellant pleaded no contest to the remaining counts and admitted the prior conviction underlying the enhancement and strike allegations. (CT 210-211, 214.)
In accord with the negotiated disposition, the court sentenced appellant to: 27 years and 8 months state prison, with no presentence credits3, and to the following fees, fines and orders: (1) a restitution fine of $ 280.00 (Pen.Code, § 1202.4, subd. (b)); and a stayed parole revocation fine in even amount (Pen. Code, § 1202.45); a court operations assessment of $120.00 (Pen. Code, § 1465.8); a criminal conviction assessment of $90.00 (Gov. Code, § 70373) (CT 213-216; RT 603-608.)
Timely notice of appeal from the sentence in case BA 41998 was filed on 31 December 2015. (CT 217.)

The facts as testified to at the preliminary hearing showed that, while evading a marked patrol vehicle at high speed, appellant's car struck a third vehicle killing its occupant.
At 12:45 p.m., on June 1, 2013, Officer Miguel Ruano was patrolling in uniform in a marked vehicle (CT 20-22) when he observed a tan Tahoe, several cars ahead “peel rubber” through an intersection after the traffic signal turned green. (CT 24.) That action, caught the officer's attention and they ran a records check on the vehicle's license plate. (Ibid.) Ruano learned that the vehicle's registration was expired and he attempted to position his vehicle behind appellant's in order to make a traffic stop. (Ibid.)
Ruano noticed that appellant's vehicle was “tailgating” another car in front of it and it “seemed” to Officer Ruano that appellant was trying to evade him. (CT 25) At that point, appellant's vehicle accelerated faster than the speed limit and began to straddle between the number one and two lanes. (CT 26.) At a red light, the officers caught up with appellant's car and activated their overhead lights. (CT 27.) Appellant's vehicle took off through the red light and continued to speed away from the officers, running red lights at a speed of about 60 m.p.h.(CT 27, 28.) Ruano called in for back-up from an “airship.” (CT 27.)
On account of the heavy pedestrian and vehicular traffic, Ruano slowed down to 40 mph, at which point he noticed that appellant's vehicle almost struck an elderly woman crossing an intersection. (CT 29.) At that point, Ruano lost sight of appellant's vehicle for about three seconds before noticing a “cloud of dirt” at the Huntington Drive and Poplar intersection. (CT 29.) When Ruano caught up he saw that appellant's vehicle had collided with two or three cars and that one vehicle was “totally smashed and crushed.” (CT 30.)
Appellant's vehicle was turned upside down and other officers at the scene told Ruano that appellant had run away through a nearby alley. (RT 31.) Ruano gave chase on foot, chasing after appellant who continued to flee while jumping over fences. (RT 35.) Ruano was unable to catch up and returned to his vehicle. Attempting to continue the chase in his vehicle, Ruano noticed appellant running eastbound on Huntington. (CT 36.) Ruano called in other units to form a containment perimeter. (CT 36.) Appellant was eventually detained by other officers. (Ibid.)
Returning to the scene of the crash, Ruano's partner, Officer Ferrel retrieved a 9 millimeter semi-automatic handgun from a place six inches from the front door of appellant's vehicle. (CT 38, 76.) Ruano also observed the vehicle which had been hit. It was crushed like a soda can and inside, Ruano noticed a body covered in a white cloth. (CT 39-40.) Ruano was able to see that the driver was an Hispanic male, with short shaved hear and wearing white sunglasses and a white shirt. (CT 56.)
Officer Jamie Gonzalez, testified that he saw a Tan Chevy Tahoe being pursuied eastbound on Huntington and coming in his direction. (CT 97.) The Tahoe was straddling the No. 3 and No. 2 lanes and made an abrupt maneuver trying to get into the No. 1 lane. (Ibid.) At that point, the driven of the Tahoe lost control and collided with a silver sedan which came to rest on the southeast corner of Huntington and Poplar. (CT 97-98.) Gonzales got out of his patrol car and noticed appellant trying to crawl out of the driver's side of his vehicle. Gonzales ran around to attempt appellant from leaving but was unsuccessful. (CT 102.)
The deceased was Julio Salvador Reyes, an apparent Mexican national who had a Mexican consular I.D. (CT 116, 121, 124.) An autopsy of Salvador Reyes showed a ring fracture at the base of his skull, four broken ribs, separated vertebrae, bruised lungs and multiple other traumatic injuries. (CT 125.)

1 The information incorrectly denoted the charge as a violation of Pen. Code, § 22900, subd. (a)(1). However, at appellant's change of plea, the prosecutor specifically and correctly referenced the correct code section, viz: Penal Code, § 29800, subd. (a)(1). (See RT 310.)

2The prior conviction for these allegations was for Pen. Code, § 245, subd. (a)(2) on May 10, 2010 in Los Angeles Cty. Case number BA355156.
3Credits for time served were applied to case number BA411280-01 (RT which was not appealed. (CT 217; RT 606.)

Friday, January 22, 2016

The Right to Turn Around


For no specified reason, patrolling officers Lunge and Escoria decided to drive into an apartment complex parking lot where they observed defendant and two other men standing next to a Mercedes parked under a covered stall in the rear of the complex. As the officer's unmarked vehicle approached, the men dispersed. Defendant walked around the perimeter fence and into an adjacent open field where he was apprehended shortly thereafter. 

Upon being detained, appellant duly informed the police that he was under a probationary search condition. No keys to the car were found on him, on the others or in the area around the car.   However, based on defendant's search condition, Lang decided to search the Mercedes. Inside the unlocked car, the police observed and then retrieved a gun box containing a .45 calibre gun with magazine clips. They also retrieved 107 grams of marijuana. 

At trial, defendant moved to suppress the evidence on the ground that his detention violated the Fourth Amendment. At the hearing the police testified that they had not received any reports of presently occurring crime and that, on driving into the complex, they had no reason to suspect defendant of anything. However, according to Lunge the men “appeared to be shocked that we were there and they just kind of started stepping away from the vehicle a little bit.”  Appellant “rapidly walked towards the rear of his vehicle and then went around the corner of the parking stall which ha[d] a side wall on it.” Lange could point to no criminality taking place. He testified, however, that he was “struck” by the fact that the car “had no license plates [sic] on it.” He also noticed that “the vehicle was parked a little odd. It was parked between two different parking stalls, not properly parked in one stall as if you were a resident you would park in a single stall.”

The trial court upheld the search ruling that the police had a reasonable suspicion to detain appellant. The court relied on three found factors: (1) the apartment complex qualified as a high crime area; (2) the vehicle was not parked correctly; and (3) appellant walked away briskly These factors, the court ruled, warranted the police to “at least stop and ask and make a determination what if anything or if nothing is going on in this area.” 

Issue:    Did Defendant's so called “flight” from the officers comprise a justifiable reason for detaining him?

 Argument:   No.

Lange's detention of appellant was without legal cause because he failed to articulate any facts amounting to a reasonable suspicion of possible criminality afoot as set forth in Terry v. Ohio (1968) 392 U. S. 1

1.    Lange had failed to articulate facts which would support his conclusory characterization of  the complex as a “high crime area.”  According to Lange,  in his 14 years of patrolling he had been in the complex “no less than 10 times” by which he must be understood to have meant a some few number of times.  Ten times in 14 years amounts to 0.0019% of Lange's professional career and was an insufficient basis on which to draw any reliable conclusions as to the crime characteristics of the complex.
 2.    Assuming for the sake of argument that the complex was in fact a “high crime area” , “a 'high crime area' factor is not an 'activity' of an individual.” (People v. Bower (1979) 24 Cal.3d 638, 645.)  Under caselaw the “high crime area factor” is given weight when a location's reputation for a specific type of criminality is matched with similar, specific conduct by the person who thereby becomes suspect.  Otherwise,  "mere presence in a high crime area is not, standing alone, 'sufficient to justify interference with an otherwise innocent-appearing citizen ....'” (Illinois v. Wardlow (2000) 528 U.S. 119, 124.)

 3.    The salient fact of the case was that no criminally suspicious activity was observed.    “An investigatory stop must be justified by some objective manifestation that the person stopped is, or is about to be, engaged in criminal activity.  (United States v Cortez, supra, 449 U. S.,  at p. 417.)   But  Lunge admitted that he pulled into the complex simply “to take a look around.”  Once looking around, he supposedly noticed missing plates on a badly parked car.  {coff}  Putting aside whether Lange could have actually have noticed that both  license plates were missing when he approached the parked vehicle from the rear,  the legal fact remains that Veh. Code, section  5200, subd. (a) [requiring plates] only applies to  vehicles “while being operated” or held for sale. (Veh. Code, § 5202, subd. (a).)   There was no evidence that the vehicle was being held for sale and it obviously was not being operated.   There was therefore no objective factual basis for a detention based on an evident illegality (Whren v. United States (1996) 517 U.S. 806, 813.)

 4.    Given the dirth of specific, articulated facts to support a reasonable inference of suspect behavior, the sole remaining basis for defendant’s detention was his so-called “flight” upon seeing officer's unmarked vehicle.    Consistent with established  Terry principles,  the California Supreme Court has held that furtive behavior can be “a key factor-in determining whether in a particular case the police have sufficient cause to detain.”  (People v. Souza (1994), 9 Cal.4th 224, 235.)  However,  Souza  specifically rejected the claim that “a person's evasion of police by running away or by driving away is, regardless of the surrounding circumstances, sufficient to draw an inference of criminal activity on the part of the fleeing person.” (Id, at p. 238.)

 5.    Last but not least, it is (supposedly) settled that, absent an order to the contrary, individuals have a constitutional  right to "to disregard the police and go about his business,"   (Florida v. Bostick (1991) 501 U.S. 429, 434   California v. Hodari D., 499 U.S. 621, 628.)   To detain defendant because he walked away punished him for his exercise of a constitutional right.

Court of Appeal

The Court of Appeal rejected appellant's arguments, holding that  “Defendant was in a high-crime area known for stolen cars, gang activity and shootings, and fled the area after making eye contact with the officers.    The combination of these same characteristics was sufficient to support a reasonable suspicion of criminal activity in Illinois v. Wardlow. (Illinois v. Wardlow, supra, 528 U.S. at p. 124 [“In this case, moreover, it was not merely respondent’s presence in an area of heavy narcotics trafficking that aroused the officers’ suspicion, but his unprovoked flight upon noticing the police”].)”

The court of appeal, added,   “It is a matter of common knowledge that automobile thieves often switch license plates from one car to another in order to conceal the identity of the stolen vehicle.” (People v. Galceran (1960) 178 Cal.App.2d 312, 316.)”


The appellate court was wrong.  Galceran involved an operated car whose produced registration did not match the plates.  In this case there was no evidence of possible switching.   Moreover Lange never  testified that he suspected the vehicle was stolen.  It is not reasonably possible  to uphold a suspicion which did not arise.

The appellate court was also wrong to state that such a “combination” of factors was relied upon in Wardlow.   Wardlow did not involve any indicia of stolen cars, gangs, shootings, drugs, prostitution, burglaries or whatever.  It involved the single factor of flight in a summarily designated “high crime area” (whatever that might specifically referred to).

Nevertheless, it is difficult to criticise the Court of Appeal's decision inasmuch as – putting aside static at the edges – it was a straightforward application of Wardlow's rule. Rather a criticism of disgust has to be registered against the Supreme Court's subversion of the Fourth Amendment and its perversion of the English language.  Wardlow is the culmination of Rehnquist, C.J.'s fetid, cancerous juriscrudence.

The rotten denouement of the Court's deconstruction of the Fourth Amendment is that, while a citizen has a supposed  right to disengage from an encounter with the police, the police can use that fact as a suspicious circumstance on which to detain him.   (In factual reality, they can also use “that fact” as grounds to gun him down.  No murmuring will be heard from the bench. )

The decision in Wardlow contained two components: (1) the basis for a police approach and (2) the right of the individual to desist from that approach. 

Early American decisions both before and immediately after Independence held that common rumor or report, suspicion, or even strong reason to suspect was not adequate to support a warrant for arrest.   Henry v United States  (1959)  361 U.S. 98, 102.  Little distinction was drawn between an “arrest” and a “detention;”  after all, the words mean the same thing.   If  a person was “stopped from going on his way”  he was “seized” for purposes of the Fourth Amendment.  For near two hundred years after the adoption of the Constitution, police officers were permitted to effect arrests or searches without warrants only “when the facts within their personal knowledge would satisfy the constitutional standard of probable cause.”  (Terry v. Ohio, supra, 392 U. S. 1    [Douglas, J., dissenting].)
Probable cause meant  facts and circumstances which were sufficient (and sufficiently) reliable to warrant a prudent man in believing that the person in question had committed or was committing an offense.  (Brinegar v. United States (1949) 338 U.S. 160, 175-176.) Probable cause did not require proof beyond doubt but rather (as the word probable might indicate to a reasonable jurist) information and evidence preponderating toward a conclusion of guilt.  In all events, it was something more than a “mere suspicion”
In 1968, the “liberal” Warren Court, rewrote the Fourth Amendment, ruling that a person could be “temporarily detained” for further “investigation” on “reasonable suspicion” that he was committing or was about to commit a crime.  In  Terry v. Ohio, the court held that held was that, having approached three Negro boys who were acting “suspiciously” on a street corner, Officer McFadden could lay hands on them, spin them around and — for his personal safety only — search them for “possibly” or “assumedly” carrying weapons.  (There were no facts whatsoever indicating that any of the boys were carrying a weapon, although in the event Terry was.)

In companion cases and ensuing cases, the Court affirmed in a variety of factual  contexts “that a police officer may in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest.” (Adams v. Williams (1972) 407 U.S. 143, citing Terry at p. 22.)  He may do so, without probable cause, provided he can  point to specific and articulable facts which, taken together with rational inferences from those facts give rise to a suspicion that the individual is involved in criminal activity.   (United States v. Brignoni-Ponce (1975) 422 U.S. 873, 881-882; Brown v. Texas (1979)  443 U.S. 47, 51.)

Eight years later, the Court lowered the bar below zero by announcing that “law enforcement officers do not violate the Fourth Amendment by merely approaching an individual on the street or in another public place, by asking him if he is willing to answer some questions, by putting questions to him if the person is willing to listen, or by offering in evidence in a criminal prosecution his voluntary answers to such questions.”   (Florida v. Royer (1983) 460 U.S. 491.)  Nor, said Royer,  would the fact that the officer identifies himself as a police officer, without more, convert the encounter into a seizure requiring some level of objective justification.  (Citing United States v. Mendenhall, 446 U.S. 544, 555 (1980) (opinion of Stewart, J.). )
Since this was exactly what Officer McFadden had done in Terry (“ approached the three men, identified  himself as a police officer and asked for their names”), the Court had to come up with some bullshit to cover up the trashing of the Fourth Amendment and gave miscarriage to the consensual encounter doctrine, viz:

The person approached, however, “need not answer any question put to him; indeed, he may decline to listen to the questions at all, and may go on his way.”  [Citing Terry]  He may not be detained even momentarily without reasonable, objective grounds for doing so; and his refusal to listen or answer does not, without more, furnish those grounds. [Citing . Mendenhall].  But,  If there is no detention ... then no constitutional rights have been infringed. “ (Royer, [460 U.S. 498];  Florida v. Rodriguez, (1984) 469 U.S. 1, 5-6. [initial contact between the officers and respondent, where they simply asked if he would step aside and talk with them, was clearly the sort of consensual encounter that implicates  no Fourth Amendment interest.'].)

“Our cases make it clear that a seizure does not occur simply because a police officer approaches an individual and asks a few questions.  So long as a reasonable person would feel free "to disregard the police and go about his business," (California v. Hodari D., (1991) 499 U.S. 621, 628 , the encounter is consensual, and no reasonable suspicion is required.  The encounter will not trigger Fourth Amendment scrutiny unless it loses its consensual nature.” (Florida v. Bostick (1991) 501 U.S. 429 [“free to go” even when seated next to window on bus].)

In Illinois v Wardlow Kafkaesque Irreality became the Orwellian Nightmare.   In that case, the police, in an unmarked vehicle, were patrolling a “high crime area” known for narcotics dealing.  They noticed defendant standing and holding an “opaque bag.”  The defendant looked at them and ran away.  The police gave chase and ultimately apprehended him.   The Illinois Supreme Court ruled that the police had lacked even a reasonable suspicion under Terry.  Rehnquist, for the majority, reversed.
An individual's presence in an area of expected criminal activity, standing alone, is not enough to support a reasonable, particularized suspicion that the person is committing a crime.”  However, “unprovoked” and “[h]eadlong flight -- wherever it occurs -- is the consummate act of evasion” which is “is certainly suggestive” of wrongdoing."

Thus while the police are “free” to approach you without any reason at all, if you exercise your right not to engage in a consensual encounter, that fact can be used to detain you.  At this point, we must leave “law” and turn to “language.”  Bad language makes for bad law and the Supreme Court's English is atrocious.

The word “flight” denotes “the act of running away, to escape or from expected evil; hasty departure.”  (Webster's Revised Unabridged Dictionary (1913)  p. 570 [italics added].) The word “evade” [from e (away) + vadere (go)] means “the act of avoiding somebody or of avoiding something that you are supposed to do”  from e (out/away)+vadere  (to go)   In other words,  the cornerstone of Rehnquist's ruling was a redundancy  which ignored the true meaning of words.

The significance of flight – when it occurs – is that it evinces an apprehension of danger and – when the danger consists in getting caught in wrongdoing – it reflects a consciousness of guilt. (People v. Mason (1991) 52 Cal.3d, 909, 943)    The word flight is not a description but an inference drawn from facts and circumstances as to  a given person's state of mind.   What a person does in any given case is to run, walk, skip, amble, shuffle, skulk, slouch, in a direction away from some other point.  The word flight expresses a conclusion as to why he does so.  An inference of flight   “is proper where the evidence shows that the defendant departed the crime scene under circumstances suggesting that his movement was motivated by a consciousness of guilt.” (People v. Ray (1996) 13 Cal.4th 313,345.)

However, Wardlow itself previously stated that presence in a high crime area was not in itself suggestive of criminality and the majority opinion never once mentioned any other fact or circumstance from which a pre-existing or predicate supposition of wrongdoing might be inferred.

In Sibron v. New York (1969) 392 U.S. 40 – the companion case to Terry – the court itself stated that  “deliberately furtive actions and flight at the approach of strangers or law officers are strong indicia of mens rea, and when coupled with specific knowledge on the part of the officer relating the suspect to the evidence of crime, they are proper factors   to be considered in the decision to make an arrest.”(Id., at p 66.)

In Wardlow there was no coupling.  Rehnquist simply seized on the ambiguous usage of “flight” to make it, in and of itself, a sufficient justification for a detention.   But in and of itself “flight” in the sense of running away means nothing.  The majority in Wardlow understood that fact  which is why they packaged emptiness with meaningless rhetorical embellishments like “headlong” and “unprovoked.”

What on God's earth does “unprovoked” mean?  Clearly, Winslow's running away was triggered by the cops' presence.  If that was “unprovoked” then did the Chief Smudgist mean to say that it would have been less suggestive of guilt if Wardlow had waited until the cops laid a hand on him  and then “evaded”?   This sort of embellishing is just garbage.

Just as much garbage was the judicial huffing and puffing about “headlong” flight.  It is a regrettable fact of Anglo-American jurisprudence that judges putty up their leaky thinking with high sounding homiletics more suitable to Bible thumpers and Puritan snits.  Two hundred years ago they gave us “willful and wanton malice aforethought with a depraved and malignant heart” as an inexhaustible conundrum to tax, vex and delight the legal profession.

One could very well distinguish the present case from Wardlow on the basis that here there was no headlong flight but merely an ordinary walking away.  By doing so, one could initiate a cascade of judicial literature on the contours of headlongness in the Fourth Amendment context.   But  in constitutional substance there is no difference between this case and Wardloweither walking away justifies being detained or it doesn't

It is here that one comes against the appalling signficance and insidious deceit of Wardlow.
[h]eadlong flight -- wherever it occurs -- is the consummate act of evasion” which is “is certainly suggestive” of wrongdoing." 
In so writing, the Chief Smudger displayed his consumate artifice:  the true lie

It is absolutely correct to say that when  properly so-called “flight” occurs it is certainly suggestive of wrongdoing.  It is equally true that if it is suggestive of wrongdoing it is immaterial where it occurs. Flight down the cathedral nave is still flight.   But if that is the case, the fact that Wardlow's flight occurred in a “high crime area” was irrelevant.  The “high crime area” was just another embellishment for effect.  Pixie dust in your eye.

Of course, a high crime area is not irrelevant.  It casts a certain light on conduct which would otherwise be innocuous.  It is one of the factors from which one can deduced that the running or walking away is a guilty-minded flight.  What Rehnquist was doing was stirring up a brew of ambiguities, tautologies and redundancies out of which to metamorphose a rule that made any act of distancing or disengaging from the police a basis for detention.

As explained, the Court had previously held  that we are not obligated to stop and stand in place when “approached” by a cop.  We  are free to leave unless by a show of authority we are commanded to stay.    According to Royer a person  “may not be detained even momentarily without reasonable, objective grounds for doing so; and his refusal to listen or answer does not, without more, furnish those grounds.” (Royer, supra, at p. 498 [italics added].)   There was no show of authority in Wardlow.  The police were in an unmarked car. Even had the car be marked, the Court in its wisdom has also held that “merely” wearing a badge and carrying a gun is not a commanding show of authority such as deprives us of our freedom to ignore the police and go about our business unimpeded. 

Thus, if the defendant in Wardlow was supposed to remain put upon coming into police view, he was detained.    If he could not be detained even for a moment, then he was free to leave. Rehnquist was quite aware of the contradiction.  Here is how he dealt with it.
But unprovoked flight is simply not a mere refusal to cooperate. Flight, by its very nature, is not "going about one's business"; in fact, it is just the opposite. Allowing officers confronted [sic] with such flight to stop the fugitive and investigate further is quite consistent with the individual's right to go about his business or to stay put and remain silent in the face of police questioning.”
Where did “stay put and remain silent”  come from?  Nothing in the Court's disgraceful jurisprudence had ever gone so far as to state that the citizen must “stay put” and “remain silent” during a supposedly consensual encounter. None of the Court's previous cases talked about a right (oh quoth!) to “stay put.”   What Rehnquist did was to insinuate a gloss on the rule to  be picked up and turned into a holding a later date

Rehnquist ever the underhanded spewing sack of shit that he was, knew perfectly well that the phrase “to go about one's business” was an expression denoting what Justice Brandeis called, the “right to be left alone.”   In turning the phrase inside out to do the work of “left off doing whatever guilty stuff he was up to”  Rehnquist simply begged the question and foisted on Mr. Wardlow a presumption of guilt.

Wardlow effected yet another perversion to a jurisprudence which is a compendium of perversions:  while the police can “approach” you for “no reason” you can only depart if you can show that you are going about your business; in other words prove that you are doing something innocent and not guilty. 

It was said of National Socialist law that the question became not what was prohibited but what was allowed.  That point was reached in Wardlow.   In Wardlow, Terry devoured itself.   The police need no reason to “approach” and ask questions but, even though they have no reasonable grounds to detain you, you must have the right to remain silent, while “staying put.”  Given the appalling wretchedness of Wardlow, the California Court of Appeal can hardly be blamed for following the instructions, which are... 

Tuesday, September 15, 2015

An Essence of Excrescence

We had a case which speaks for volumes on the hypocritcal depravity of the U.S. justice system.  The case involved some interesting legal issues which we will have occasion to write about elsewhere.  For present purposes it suffices to say that, at trial, defendant was charged with impermissibly carrying a gun and with making threats while he sat under arrest in a police vehicle.  Both charges were based on hearsay evidence; viz: “I was told he had a gun” and “I heard him say ‘he was gonna get them.”  Defendant was acquitted of the threat charge but convicted of possessing a gun.

On appeal, defendant argued that his conviction of gun possession was based on impermissible hearsay which deprived him of his constitutional right to “confront” his accusers — in this case, whoever it was who had told the trial witness that he had a gun. 

The Attorney General filed an answer brief arguing at length that the threat statements were properly admitted.  Defendant filed a reply brief stating that he had not appealed his acquittal and that the issues raised concerned the first hearsay statement.

The appellate court affirmed the judgement ruling that the threat statements had been properly admitted and that there was “sufficient evidence” of defendant’s gun possession.

Defendant filed a petition for rehearing requesting the appellate court to please address the issue he had appealed.  With an unmistakably clear “fuck you,” The petition was denied. 

A petition for review by the state high court was also denied.


What the case shows is not that appeal courts scratch all corners of the chicken coop to come up with some flimsy grist with which to keep people locked up at all costs.

What the case illustrates is that the courts do not even bother reading defendant’s appellate contentions.  Their justices clerks get the briefs, read the Attorney General’s brief and then write a draft affirming the decision based on the States’ pleadings.

We have often suspected as much, but never was the muck in the pond so clear.

Wednesday, July 1, 2015

What the Constitution Guarantees

The People's contentions on appeal are always a variant on a sufficiency of the evidence argument coupled with the cliché that "The constitution guarantees a fair trial not a perfect one" to which the answer is that the constitution guarantees a process not an outcome.


Tuesday, February 10, 2015


blah blah balh balh

Monday, November 4, 2013

Harmless Injustice


Rice and Rivers were apprehended in a car driven by River's boyfriend Manafov half an hour after the robbery of a nearby Chevron station.  A security video showed Manafov holding up the cashier before making off in a car.  At trial, Rivers testified that earlier in the day Rice had told her that he and Manafov were going to “hit a lick” (i.e. rob some place).   She testified that she did not know how to drive and that  she had been asleep in the car at the time of the Chevron robbery.   A blurry outside security video showed a vehicle driven by an indistinguishable person pulling away from the station.  Summers, the case detective, was allowed to testify that, in his opinion, the video depicted Rice.   At the time of his arrest, Rice, who is black, was wearing a white tank-top and blue shirt.  Paperwork belonging to appellant was found in the car, along with a fleece-lined jacket, red and white caps in the trunk, a gun hidden under the hood and money stashed under the rear seat.   Other witnesses testified that a short while before the Chevron robbery, Manafov's car was spotted pulling up to another gas-station convenience store.  The driver of the car, who was wearing a fleece-lined coat, stalled a couple of times when backing up and did not appear to know how to drive.    Based on this evidence a jury found Manafov and Rice guilty of the Chevron robbery.

On appeal, Rice contended that the detective's opinion as to what the video showed was prejudicially improper evidence and that, once his opinion was removed from the balance, there was insufficient evidence to support the jury's verdict of guilt.    Rice also contended that the trial court had failed to instruct the jury that the testimony of an accomplice required some independent corroboration before it could be relied upon to establish guilt.


Was it error for the trial judge to allow the detective to state his personal opinion that the driver depicted in the video was Rice?


Yes.     “One of the fundamental theories of the law of evidence is that witnesses must ordinarily testify to facts, not opinions." (People v Melton (1988) 44 Cal.3d 713, 744.)  Expert opinion is allowed on a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact." (Evid. Code, § 801, subd. (a); People v. Harvey (1991) 122 Cal.App.3d 1206, 1227); however, it is is not admissible if it consists of inferences and conclusions which can be drawn as easily and intelligently by the trier of fact as by the witness." (People v. Valdez (1997) 58 494,  506.)  Detective Summers had no more "expertise" watching a video than any juror. It was therefore error to allow him to instruct the jury as to what the evidence showed.

Also by law, a defendant cannot be convicted on the testimony of an accomplice unless it is corroborated in some substantial way that connects the defendant to the crime.   (Pen. Code, §  1111.) The corroborating evidence must tend directly and immediately to connect the defendant with the commission of the offense (People v. Shaw (1941) 17 Cal.2d 778, 802) and must do so without any aid, interpretation or direction from the testimony of the accomplice People v. Lewis (2004) 120 Cal.App.4th 837, 848.)  As a matter of law, without corroboration, accomplice testimony  is never  sufficiently trustworthy to establish guilt beyond a reasonable doubt.  (People v. Gonzales & Soliz (2011) 52 Cal.4th 254, 303.) 

Rivers' had an obvious motive to exculpate herself by pointing the finger at at Rice.  The only possible corroboration of  Rivers' testimony was the blurry video.   What the video showed, and if it put Rice in the driver's seat, was up to the jury to decide.  However, that decision was "tilted" in favour of the prosecution by the detective's opinion testimony.   To make matters worse, the jury had not been instructed on the requirement that an accomplice's testimony needed to be independently corroborated.   The ultimate result was that Rice had been denied a fair trial by virtue of a conviction based on  biasing opinion of the prosecution's own team.

Court of Appeal Opinion:

The appellate court affirmed the judgement.  It agreed that the assigned errors had occurred but ruled that they were "harmless" because they did not affect the ultimate result.   

With respect to the erroneous admission of Detective Summers' opinion,  the court explained,  "The video was admitted into evidence and the jury was able to evaluate what it showed as to the driver.  ....  While the People could certainly argue the video showed Rice was the driver, it was improper for a law enforcement officer to testify to his observations and opinion of the very same evidence the jury was  charged with evaluating. This is because the jurors may have deferred to Summers observations as to what the video showed over their own observations, due to his status as a law enforcement officer. Indeed, in closing argument the prosecutor argued the jury heard the description of the driver based on the video "from a veteran detective" ....who "has been working crimes against persons for decades."

With respect to the trial court's failure to instruct on accomplice testimony, the court of appeal noted that "Rivers was arrested with Manafov and Rice, and only was forthcoming with the police when she realized she could be charged with robbery. She was originally charged with robbery, but the charges were dismissed."  In other words, as with most accomplices, her credibility was highly suspect.

Nevertheless, the court of appeal concluded that the failure to instruct the jury on the need to corroborate Rivers' testimony was harmless because her testimony was corroborated by the video which showed a driver matching her description; and the error in allowing Summers to testify as to what the video showed was rendered harmless by Rivers' accomplice testimony which implicated appellant.


The Court of Appeal was wrong.   Its reasoning was paradigmatic bootstrapping.  Moreover, it cured the error of allowing the case to be  decided by Detective Summers by becoming the 13th Juror and deciding the case for itself.    The court's opinion is an illustration of the misuse of the harmless error doctrine which has become flagrantly standard in the appellate courts.    The doctrine has been used to affirm judgements in cases literally riddled with error, on the grounds that the defendant was good for it anyway.  The abuse of the harmless error rule ultimately deprives a person of his right to be tried by a jury -- not by judges substituting their opinion for what they say the jury would have done in any case.
In the 19th century,  there was a proclivity on the part of some appellate judges to reverse cases on proverbial "technicalities" some of which were pretty de minimis by any standard.   In response, legislatures and higher courts fashioned a harmless error doctrine, the general aim of which was to prevent judgements from being reversed on truly trivial grounds. 
The problem that immediately arose was how to define "trivial."   Not illogically, the courts concluded that to say something was "trivial" meant that it was unimportant in relation to everything else in the case.  A small error which might be insignificant in a large complex case could be the crux of the matter in a small, simpler one.   Thus, deciding whether any given error was trivial, and hence harmless, required looking at the evidence and judging its overall thrust and weight.  But this kind of assessment gave rise to yet another problem: the dilemma of the "Thirteenth Juror"
The entire premise of the judicial system is that juries and not judges decide guilt or innocence.   If judges end up deciding what evidence is important or not important, weighty or not weighty then they become  the ultimate jurors.   Thus, in order to avoid reducing jury verdicts to little more than a preliminary formality, the appellate courts adopted an indirect approach which focused not on the impact of the error on the case but on its impact on the jury's deliberations.
Accordingly in  Chapman v. California  (1961) 386 U.S. 18 the Supreme Court ruled that a reviewing court could not find an error harmlessness based simply upon its own "view of 'overwhelming evidence.' " (Chapman, supra, at p. 23.) Instead,
The question is whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction. .... An error in admitting plainly relevant evidence which possibly influenced the jury adversely to a litigant cannot ... be conceived  of as harmless.” (Id, at pp. 23-24,
Thus, under Chapman, an error in the proceedings requires reversal "unless the reviewing court is satisfied beyond a reasonable doubt that the error “did not affect the jury's verdict.”
California came up with its own formulation of harmless error. In  People v. Watson  (1956) 46 Cal.2d 818, the California Supreme Court ruled that  an error is prejudicial “when the court, ‘after an examination of the entire cause, including the evidence,’ is of the ‘opinion’ that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.” (Id., at p. 836.)
In legaleze, the terms "reasonably probable" refers to a "preponderance" -- that is a 51% probability.   Thus, under the above formulation, an error is not harmful if a reviewing court thinks that the evidence preponderates in support of the guilt verdict.
The California high court appears to have had some doubts about the correctness of the Watson formula.  In  People v. Superior Court (Ghilotti) (2002) 27 Cal.4th 888,  it stated  that  "'probability’ for purposes of determining whether state law error affected the trial outcome does not mean ‘more likely than not,’ but merely a reasonable chance and more than an abstract possibility that it did."  (Id., at p. 918.)
There is no substantial difference between a test which focuses on whether there is more than a fanciful possibility of an affect of the error  on the verdict (Watson) and a test in which the reviewing court ask itself if it can conclude beyond a reasonable doubt (i.e. beyond a mere fanciful doubt) that the error did not affect the outcome (Chapman).   However,  apart from the Ghilotti case, the California Supreme Court has hewed to the traditional formula that  that error  “requires reversal [only]  if it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error” (People v. Richardson (2008) 43 Cal.4th 959, 1001-1002.)
Thus, Chapman and Watson set forth two different burdens of proof.  Under Chapman the reviewing court must conclude "beyond a reasonable doubt" that the error did not affect the jury's deliberations adversely to the defendant.  Under Watson the reviewing court must conclude only that, discounting the error, the evidence showed a reasonable probability of guilt. 
A further distinction between Chapman and Watson concerns whether the reviewing looks at the effect of error on the ultimate outcome as such (i.e. the verdict reached) or whether it assesses the error in terms of its impact on the jury's deliberations.   In Watson, the court's concluding holding was that, in the case before it,  "[i]t does not appear reasonably probable that the jury was influenced by such evidence to defendant's prejudice, or that the admission of such evidence affected the verdict.” (Watson, supra, 46 Cal.2d, at p. 837.)  This statement was indistinguishable from Chapman's formula.  
However, in its previous discussion of the various harmless error formulations that had been proposed, Watson repeatedly referred to the impact of an error on the "result" or "outcome" of the case; and this has been the focus which the California court's have followed.
Thus, as practiced, the federal rule of harmless error  looks at the effect of the error on the jury's deliberative process and requires a finding beyond any reasonable doubt that no critical effect took place (i.e. an effect which "might have" affected the result).   In contrast,  the California rule looks at the verdict itself and asks if it is reasonably probable that the error affected the result (or conversely) if, notwithstanding the error, the evidence is such as renders a guilty verdict reasonably probable.
Under the federal harmless error rule, there is no question that the error in allowing Detective Summers to state his opinion on the critical question of the driver's identity was prejudicial error.  Chapman's  precise holding is directly applicable.  In Chapman, a prosecutor (instead of a prosecution witness) volunteered his personal opinion on the question of guilt.  The Supreme Court held,

 “Though the case in which this [error]  occurred presented a reasonably strong ‘circumstantial web of evidence’ against petitioners, ... it was also a case in which, absent the constitutionally forbidden comments, honest, fair-minded jurors might very well have brought in not-guilty verdicts.  Under these circumstances, it is completely impossible for us to say that the State has demonstrated, beyond a reasonable doubt, that the prosecutor's comments and the trial judge's instruction did not contribute to petitioners' convictions. “  (Id., at pp. 25-26.)   
Thus, under the Chapman standard, the Court of Appeal in this case could simply not say, as it did, that " the jurors may have deferred to Summes’ observations as to what the video showed over their own observations,"  and then conclude that the error had no undue influence on the jury's deliberations.   Such a conclusion did no more than state an oxymoron. 

However, under the Watson standard, as it has been applied, it appeared reasonable to say that notwithstanding the error, the evidence in the case was such that it is reasonably probable the jury would have voted guilty anyway.  The problem with the accepted Watson formulation is that it is indistinguishable from a sufficiency of the evidence test which is completely inappropriate in the context of given error.

Background.  The Constitution requires that criminal charges against the accused be proved beyond a reasonable doubt.  (In re Winship (1970) 397 U.S. 358.)   This requirement means that a verdict of guilt must be based on more than pale and bare evidence but rather that the evidence of guilt be "substantial --  that is  reasonable, credible, and of solid value-such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” (People v. Johnson (1980) 26 Cal.3d 557, 578.)

The federal and California sufficiency tests are identical; and once again it can be seen how the formula seeks to avoid placing the appellate court in the position of a Thirteenth Juror.  The question is whether there is evidence in the record which would have supported the verdict the jury did in fact reach.

The Jackson/Johnson rule is called "deferential" because the point of departure is the given fact that the jury did reach a guilty verdict.  In doing so, it must have believed and credited that evidence which pointed to guilt and, by the same token, it must have disbelieved or discounted evidence which pointed toward innocence.   Under "sufficiency analysis" the reviewing court does not re-weigh the evidence for itself.  But it does weigh the evidence the jury evidently relied on, and it does evaluate the reasonableness of any guilty inferences drawn from those evidentiary facts.

Classic examples of insufficiently substantial evidence would be claims of a deaf person to have heard the "thumps" abovestairs (Witness for the Prosecution) or to have seen the murder by the light of the moon (which did not shine that night).  The Sufficient Evidence Test aims to insure the right to not to be convicted on evidence which is too flimsy or improbable to prove the case beyond a reasonable doubt.

But the test presupposes a trial that is free of error.  That is the only reason the jury's verdict is deferred to as the point of departure.  Where legal error has been shown to exist then a sufficiency of the evidence analysis is inappropriate because it tacitly begs the question.

In upholding the verdicts in the present case, the Court of Appeal slid from harmless error analysis into a sufficiency of evidence assessment.  That was the only way it could conclude that the admission of Summers' testimony might have influences the jury but there was such sufficient evidence of guilt that the error probably did not affect the result.

The Court of Appeal's analysis flows from a  common misinterpretation of Watson.  As shown above, the Watson test actually states the same standard as used in Chapman.  The common place idea, among California courts, that it sets a "lesser" standard is just plain wrong, once one actually reads the  Watson opinion instead of mechanically repeating a short-hand rubric.
But the misinterpretation has constitutinal implications.  The Sixth Amendment's reference to a trial "by jury" is more than just a guarantee of twelve sitting equals.  Trial by jury -- constitutionally understood -- encompasses a cluster of inter-related rights:  the right to a local jury, comprised of a random but fairly selected cross-section of the population, uninfluenced by outside pressures or bribes, properly instructed in the law by the judge and not allowed to hear matters passing as evidence  that are irrelevant, improper or unduly inflammatory.   When all these conditions have been then, and only then, has a defendant be accorded his right to a "jury trial" as contemplated by the Constitution.
When error has been shown to exist for an appellate court to state that in its opinion a guilty verdict would probably have been reached anyways,  simply washes away a defendant's right to a "jury trial."

©JustinLaw, 2013

Thursday, October 24, 2013

Judges are Whores

The Final Proof.   There is a rule of law which permits two different offences to be joined in a single trial if they are "connected in their commission".   Needless to say, there is a lot of lawyerly wrangling over what is "included" in the "connected".   The courts have tended to be latitudinarian in their rulings, although common decency is usually supplied by the hard facts of the case.   But when the issue cannot be floated on the hard facts, the courts are just as happy to sink into utter shamelessness, as illustrated by People v. Valdez (2004) 32 Cal.4th 73, in which the "California Supremes" held that it was proper to join a charged escape with a murder alleged to have occurred two years before,

"Although the murder itself occurred almost two years prior to defendant's escape, the offenses were nonetheless connected because the escape occurred as defendant was being returned to "lock-up" following his arraignment on the murder charge. The apparent motive for the escape was to avoid prosecution for the murder."
The issue, under the plain meaning of the statue, is not whether two offences are "connected" in some causal abstraction but whether they were connected in their commission. -- that is, in their doing.  The omission of a modifying adjective, participle or prepositional clause is a typical sophistical artifice of the slime-balls on the high bench.
According to Aristotle, language was given to Man so that he could "decide between the just and the unjust and the expedient and inexpedient." (Politics, Bk. I.)   I have my doubts.  Shrieking hyeanas sound better than most judges or lawyers.   Language was a gift of the Devil to embroil Man in filfth and shamlessness.