Appellate Law & Practice

Cali: Prosecutorial misconduct isn’t that bad

C&F accuses California’s Second Appellate District of basically sanctioning quite egregious prosecutorial misconduct. True enough, in People v. Zurinaga, the prosecutor does many improper things. The panel goes on and on about how what he did was wrong. But, the panel affirms the conviction anyway, sending a clear message to prosecutors (that the First says as well): there are no limits to what you juries, because the courts will never reverse your convictions, doing its very best to find harmless error. Go ahead! No limits! Supervisors: no need to keep an eye on your underlings. They can so whatever they want, and say whatever they want. So long as they do it in front of a jury!

Also, the California court makes it clear that they won’t name the prosecutor. Nor would they refer them to the state bar. Essentially, they condoned all the behavior that they spent pages condemning!

Cali: successive habeas petition win on BWS

• Check it out.  Some firm called “Latham and Watkins” (sounds like something you find in your grandfather’s woodshop) wins a state habeas petition in Cali, on the theory that it was not only ineffective assistance not to introduce evidence of “intimate partner battering” (that is now what they call “battered wives syndrome”).  What is particularly remarkable about this is that this was a successive habeas petition, and there was an intervening change in the law. Anyway, congrats to Beth Collins-Burgard and Daniel Seltzer for doing some good work.  Tnx Cali App. Rpt. See the news reports here.
• And speaking of law firms... just in case you thought we heard the last about Cully Stimson, Andrew C. McCarthy, a lawyer and former prosecutor jumps to his defense, saying that Mr. Stimson    not only violated no ethical rules but large corporations should decide which firms to hire on the basis of their pro bono clients and not on the basis of the services they provide.  It seems like the pro-pre-retraction-Stimpson crowd now wants to abandon capitalism.

California Appeal

Please join us in welcoming California Appeal to the appellate blogosphere. This baby blog (almost two weeks old) covers "Appellate Advocacy in California. Tools, Tips, Resources, and News relevant to appellate practitioners." Its author, Amanda Benedict, is a cyclist who practices appellate advocacy and bicycle-accident litigation.

Cali: arguing on the internet is like winning the Special Olympics

Since everyone is talking about Barrett v. Rosenthal (Cal. 11/20/06), I figure I would post a link.  Essentially, the California court held what most people thought: that what remains of the CDA protects hosts/bulletboard providers, etc. from liability under defamation theories, when they didn’t write the libelous stuff. 

Internetcases has some good commentary on it here.

Cali DAs at it again

And not to be outdone, by the post below, District Attorney Ron Zonen also shared files with movie producers.   The prosecutor’s name is Ronald Zonen. The   California Bar site says that he went to “Whittier Coll SOL.”  To his credit, the prosecutor attempted to defend his actions on practical grounds:

Zonen never asked for and was not given any monetary consideration for his assistance. Zonen declared that he decided to cooperate with Cassavetes because he believed Alpha Dog would be "the last opportunity to get the kind of widespread publicity necessary to locate [petitioner] and bring him to justice." Zonen stated: "I asked only that [petitioner's] picture be shown at the conclusion of the film along with a phone number to call with information as to his whereabouts. I asked that the audience be told that [petitioner] remains a fugitive and that there is a reward for his arrest." Zonen also asked "that the film be accurate."

The court concludes:

In this first impression death penalty case we should not give our imprimatur to Zonen's conduct or embolden other prosecutors to assist the media in the public vilification of a defendant in a case which is yet to be tried. Perhaps without intending to do so, Zonen has potentially infected the jury pool with his views on the strength of the People's case. Prosecutors should try their cases in courtrooms, not in the newspapers, television, or in the movies.

Ironically, in this case the defendant was named Hollywood, and the case, from the Second Appellate District can be found here.

SLAPPing everyone around convinced even me that this is Overlawyered

California Appellate Report describes Wanland v. Mastagni, Holdstedt & Chiurazzi (Cal. Ct. App. - July 6, 2006).  But, in this case, the firm defending against the lawsuit just wouldn’t quit, and the system worked by providing damages against a defense firm that acted frivolously.  Again. And. Again.  Keep readin'.

Appellate court in San Francisco finds due process violation in parole denial

Today, the First District Court of Appeal issued a published opinion (In re Scott, A108894) setting aside the governor's revocation of parole and (at least seemingly) ordering the petitioner's immediate release.  He had served 18 years of a 15-year-to-life sentence for a second-degree murder.  The full text of the opinion can be found here.

The very interesting legal issue here is whether parole can be denied based on the facts of the crime alone where all other factors (i.e., the factors that a prisoner) can change all support grant of parole.  Citing the California Supreme Court decision in Rosencranz, the majority says "yes," but concludes that such a decision requires close scrutiny and that the governor failed to properly considered that factor and other relevant factors.  The court points out, quite logically, that since prior history is the only thing a prisoner cannot change, it may be unfair and uncostitutional to look at the facts of the crime in isolation from other factors.  All other factors here (as discussed in the opinion) really point towards parole suitability.  The court also points out that for the facts of crime to be particularly eggregious, they would have to stand out from the facts minimally necessary to complete the offense.  Here, while the petitioner eventually plead to a 2nd-degree murder, the facts might not have actually risen above manslaughter level if the jury considered that charge.

I think the Court found the correct middle ground here.  Rosencranz (rightly or wrongly, perhaps more of the latter) still is binding authority for the proposition that facts of crime alone might be sufficient to justify parole.   The lingering question from this rule is whether there is any limit to this rule.  As Judge Reinhardt correctly observed during oral argument in Irons v. Carey, if there was unlimited authority to deny parole for this reason, a 15-to-life sentence is easily convered into a life in prison sentence.   If Scott goes up to the Cal. Supreme Court, this issue will likely come up.   

But the Court here did not have to decide that thorny question.  Procedural due process required the Board and the Governor to look at all other relevant factors, even if the ultimate decision is based on only one.  Since the governor considered only one factor and ignored all favorable evidence pertinent to the other factors, he did not properly consider the evidence.

It will be interesting to see if this case has any bearing on Irons v. Carey.  If it stands (for the petitioner's sake, I hope it does), the 9th Circuit can affirm the decision of the district court in Irons to grant habeas relief without ruling constitutionality of AEDPA.

Cali: Another urban legend – ugliness is not an issue

Since some of the blogs seem to be buzzing about Yanowitz v. L’Oreal, and claiming that the California Supreme Court recognizes “ugliness” as a protected class, I feel obligated to say that the plaintiff (who, apparently, was pretty, but strong-headed) alleged that she was fired for failing to fire a dark-skinned woman.    Under California state law, retaliation for failing to do something illegal is actionable, or  unlawful retaliation in violation of the provisions of Government Code section 12940, subdivision (h) (section 12940(h)), which forbids employers from retaliating against employees who have acted to protect the rights afforded by the California Fair Employment and Housing Act (FEHA) (Gov. Code, § 12900 et. Seq).  Section 12940(h) makes it an unlawful employment practice for an employer “to discharge, expel, or otherwise discriminate against any person because the person has opposed any practices forbidden under this part or because the person has filed a complaint, testified, or assisted in any proceeding under this part.”

People v. Black

Today, the California Supreme Court issued an opinion re: California's determinate sentencing scheme and the Blakely / Booker line of cases.  In People v. Black, a 6-1 majority of the court finds that California judges can impose upper terms of the sentencing ranges based on aggravating factors found solely by the judge, even if those factors are beyond those admitted by the defendant or inherent in the jury's guilt finding.  The court also finds that the defendant does not have a right to jury trial as to whether the sentences on two or more crimes are going to be run consecutively.

The lone dissenter is Justice Kennard.  She dissents from the portion of the majority opinion, in which the majority allows judges to impose aggravating sentences based on facts not admitted by the defendant or found by jury beyond a reasonable doubt.  She would, however, affirm the upper-term sentence to the Black defendant because of his prior criminal history, on which he does not have a right to jury trial.  She also joins the majority on the consecutive sentencing portion of the opinion.

The majority's opinion seems spectacularly wrong.  I was really confused by that whole bit about the Blakely / Booker decisions allowing judges to engage in "traditional judicial fact-finding."  As Justice Kennard correctly points out in her dissent, the Booker majority rejected that approach and held, once again, that the court can aggravate a sentence above the level inherent in the jury's guilt finding only based on facts admitted by the defendant or found true by the jury beyond a reasonable doubt.

Also, as Justice Kennard, I do not see any meaningful distinction between California's sentencing scheme and Washington scheme struck down in Blakely.

In light of the fact that the majority opinion seems to be in clear contradition of the Booker / Blakely decisions, I would expect SCOTUS to take this up.

Anders v. California, revisited

On June 8, 2005, the California Supreme Court granted review in People v. Kelly, which raises an interesting issue concerning no-issue opinions -- cases where the attorney files a brief stating he or she found no appealable issues and asking the Court itself to take another look.  The federal case is Anders v. California and its California version is People v. Wende (1979) 25 Cal.3d 436

The issue in Kelly concerns a rare situation, where the client actually exercises his or her right to submit a supplemental brief.  In Kelly, despite the supplemental brief from client, the Sixth District Court of Appeal in San Jose issued a pretty standard Wende denial, without acknowledging the client's pro se supplemental brief.  The Supreme Court granted review on the following issues: (1) Does the California Constitutional requirement that criminal appeals shall be disposed of by a written opinion, with reasons stated, apply with equal force when a Wende brief is filed; (2) Did the Court of Appeals' opinion satisfy whatever constitutional standard for the form of opinion that the Supreme Court comes up with?

The issue of interest to me because I got a Sixth District Wende appeal, where the client chose to submit a letter brief.  Depending on the form of the court of appeals' opinion (which is due in a couple of days), I may be getting my first review grant.