ABOUT TRIALS

JURY TRIALS

Pursuant to California Constitution article I, §§15, 16 & 29 and per Penal Code (PC) §689, and per the 6th and 14th amendments to the U.S. Constitution, in a criminal case in a California state court proceeding, both the defendant as well as the prosecution have the right to a speedy public (jury) trial in both misdemeanor as well as in felony cases.  This right entitles the parties to a jury of 12 impartial persons sitting as jurors.  In a misdemeanor case, the parties may agree to fewer than 12, but no fewer than six persons.  Although the California Constitution mandates 12 jurors in any felony case, however, with a proper Boykin/Tahl waiver, the parties may agree to have the case tried with fewer than 12 jurors and even by the court.  The parties also have the right to counsel, the right to compulsory process (subpoena power), the right to be personally present with counsel, together with the right to effectively confront and cross-examine witnesses against the defendant.   Moreover, the California Constitution mandates that the Legislature provide for the deposition of witnesses in the presence of the defendant and defense counsel.  Finally, defendants may not be placed twice in jeopardy for the same offense, nor compelled to testify against themselves, nor be deprived of life, liberty or property without due process of law.  Thus, trial by jury as above described is an inviolate (fundamental) state and federal constitutional right.  This right t o an impartial jury trail extends to the proof before a jury of all special allegations (enhancements), including allegations regarding prior convictions, which allegations seek to enhance (extend) any punishment upon conviction.  There are exceptions for prior convictions alleged under PC §190.2 (special circumstances) or as an element of the charged offense, to which the right to a jury trial still extends. (PC §1025(d).)  Unless authorized by statute, the verdict does not fix the penalty, the court does.

Right To Speedy Trial  In McNeely v. Blanas (2003) (4/18/03; 03 C.D.O.S. 3247; ___ F.3d ___), on a pre-trial detainee's habeas petition (28 USC §2241)*, the Ninth Circuit reviewed the petitioner's Sixth Amendment right to a speedy trial claim per Barker v. Wingo (1972) 407 U.S. 514, 530, wherein the U.S. Supreme Court articulated a four-part test to determine when government delay has abridged one's Sixth Amendment right to a speedy trial.  The factors to be considered include: (1) the length of the delay; (2) the reasons for the delay; (3) the accused’s assertion of the right to speedy trial; and (4) the prejudice caused by the delay.   No single factor is necessary or sufficient.  In addition, the Court determined that the burden of proof (i.e., showing no such infringement) rested with the government.  After considering the factors, the Ninth Circuit reversed the decision of the district court, remanding the case with directions to grant the petition for writ of habeas corpus, noting that because his Sixth Amendment right to a speedy trial has been violated, the petitioner was to be immediately released from custody with prejudice to re-prosecution of the criminal charges. (Strunk v. United States (1973) 412 U.S. 434, 439-40 - holding that a violation of one's Sixth Amendment speedy trial rights requires dismissal).  The order, however, was made without prejudice to the institution of such civil commitment proceedings as may be appropriate under state law (SVP laws) to be commenced within 30 days of the issuance of the mandate.  Editor's Note:  The Court in McNeely pointed out that the parties characterized the petition as falling under 28 USC §2254.  However, because the petitioner was a pre-trial detainee, he was not being held “pursuant to the judgment of a State court.” (28 USC §2254)  Therefore, his claim fell under 28 USC §2241 per Braden v. Judicial Circuit Court (1973) 410 U.S. 484, 503 (Rehnquist, J., dissenting) (“Section 2254 pertains only to a prisoner in custody pursuant to a judgment of conviction of a state court.  Thus, in the context of the attempt to assert a right to a speedy trial, there is simply no §2254 trap to ‘ensnare’ petitioner, such as the court below felt existed.  The issue here is whether habeas corpus is warranted under §2241(c)(3); that section empowers district courts to issue the writ, inter alia, before a judgment is rendered in a criminal proceeding.”); Jacobs v. McCaughtry, 251 F.3d 596, 597 (7th Cir. 2001) (explaining that a state court defendant attacking his pretrial detention should bring a habeas petition under 28 USC §2241); Stringer v. Williams, 161 F.3d 259, 262 (5th Cir. 1998) (same).

In People v. Martinez (2000) 22 C4th 750; 996 P.2d 32; 94 CR2d 381, the California Supreme Court refused to reconcile the state and federal differences between one's right to a speedy trial.  The state and federal Constitutions both guarantee criminal defendants the right to a speedy trial (U.S. Const., 6th Amend.; Cal. Const., art. I, §15), and both guarantees operate in state criminal prosecutions (Klopfer v. North Carolina (1967) 386 U.S. 213, 222–223 [holding that the 6th Amend.’s speedy trial guarantee applies to state criminal prosecutions]), but there are two important differences in the operation of the state and federal constitutional rights as construed by our courts.  The first difference concerns the point at which the speedy trial right attaches.  Under the state Constitution, the filing of a felony complaint is sufficient to trigger the protection of the speedy trial right. (People v. Hill (1984) 37 C3d 491, 497, fn. 3; People v. Hannon (1977) 19 C3d 588, 607–608.)  Under the federal Constitution, however, the filing of a felony complaint is by itself insufficient to trigger speedy trial protection. (Hannon, supra, at pp. 605-606.)  The U.S. Supreme Court has defined the point at which the federal speedy trial right begins to operate: “[I]t is either a formal indictment or information or else the actual restraints imposed by arrest and holding to answer a criminal charge that engage the particular protections of the speedy trial provision of the Sixth Amendment.” (U.S. v. Marion (1971) 404 U.S. 307, 320.)  The second difference is in the showing that a defendant must make to obtain a dismissal for violation of the speedy trial right.  For the federal Constitution’s speedy trial right, the U.S. Supreme Court has articulated a balancing test that requires consideration of the length of the delay, the reason for the delay, the defendant’s assertion of the right, and prejudice to the defense caused by the delay. (Barker v. Wingo (1972) 407 U.S. 514, 530.)  Because delay that is “uncommonly long” triggers a presumption of prejudice (Doggett v. U.S. (1992) 505 U.S. 647, 651–652, 656–657), a defendant can establish a speedy trial claim under the Sixth Amendment without making an affirmative demonstration that the government’s want of diligence prejudiced the defendant’s ability to defend against the charge. (Moore v. Arizona (1973) 414 U.S. 25, 26.)  Under the state Constitution’s speedy trial right, however, no presumption of prejudice arises from delay after the filing of a complaint and before arrest or formal accusation by indictment or information (Scherling v. Superior Court (1978) 22 C3d 493, 504, fn. 8); rather, in this situation a defendant seeking dismissal must affirmatively demonstrate prejudice (Serna v. Superior Court (1985) 40 C3d 239, 249).  The Court concluded that in a California prosecution, the filing of a felony complaint, either with or without the issuance of an arrest warrant, is insufficient to engage the federal Constitution’s speedy trial protection, and it also concluded that, absent violation of a statutory speedy trial provision, a showing of specific prejudice is required to establish a violation of our state Constitution’s speedy trial right.  Defendant raised an additional issue: To determine whether violation of our state Constitution’s speedy trial right has occurred, in the absence of a statutory speedy trial violation, may a trial court defer ruling on a motion to dismiss until after the evidence at trial has revealed the extent of the prejudice that the defense has suffered? The Court concluded that a trial court may do so.  Editor's Note:  California's statutory speedy trial right is codified in PC §1382.

Right To Jury Determination  In Apprendi v. New Jersey (2002) 530 U.S. 466, the U.S. Supreme Court ruled that the U.S. Constitution requires that any fact that increases the penalty for a crime beyond the prescribed statutory maximum, other than the fact of a prior conviction, must be submitted to a jury and proved beyond a reasonable doubt.

In Ring v. Arizona (2002) 536 U.S. ___, the U.S. Supreme Court overruled its decision in Walton v. Arizona (1990) 497 U.S. 639, holding that Walton and Apprendi, supra, were irreconcilable.  Accordingly, Walton was overruled to the extent that it allows a sentencing judge, sitting without a jury, to find an aggravating circumstance necessary for imposition of the death penalty. (Id, at 647–649.)   Because Arizona’s enumerated aggravating factors operate as “the functional equivalent of an element of a greater offense,” Apprendi, at 494, n. 19, the 6th Amendment requires that they be found by a jury.  Here, Arizona law provided that a death sentence may be imposed only if the judge finds at least one aggravating circumstance and no mitigating circumstances sufficiently substantial to call for leniency.  Following such a hearing, defendant's trial judge sentenced him to death.  Because the jury had convicted the defendant of felony murder, not premeditated murder, the defendant would be eligible for the death penalty only if he was, inter alia, the victim’s actual killer.  (See Enmund v. Florida (1982) 458 U.S. 782.)  Citing accomplice testimony at the sentencing hearing, the judge found that the defendant was the killer.  The trial judge then found two aggravating factors, one of them, that the offense was committed for pecuniary gain, as well as one mitigating factor, defendant's minimal criminal record, and ruled that the latter did not call for leniency.  As a consequence of this procedure, the Supreme Court ruled that Arizona's death penalty law amounted to an unconstitutional denial of a defendant's right to a jury trial.

Jury Trial Waiver  In People v. Collins (2001) 26 C4th 297; 27 P.3d 726; 109 CR 2d 836, the Caliofrnia Supreme Court held that a defendant's waiver of his right to a jury trial was not a valid waiver where the trial court, in advising defendant before accepting the waiver, informed him that he would receive "some benefit" if he waived his right to a jury trial, although the trial court could not articulate what precisely the benefit would be.  The defendant argued that, under these circumstances, his jury trial waiver was induced by the trial court's offer of a benefit and, therefore, was not made voluntarily.  As a consequence, the defendant claimed that his right to due process of law was violated.  The Supreme Court agreed, holding that the waiver of a jury trial obtained by the trial court's assurance of an unspecified benefit was not a valid waiver, and that this error compelled reversal of defendant's convictions.  The trial court, by announcing its intention to bestow some form of benefit for defendant's waiver of the constitutional right to a jury trial, acted in a manner that was at odds with its judicial obligation to remain neutral and detached in evaluating the voluntariness of the waiver.  A harmless error standard could not apply, as the error amounted to a structural defect in the proceedings.  Editor's Note:  One can't help but ask, "What trial judge in his right mind would promise a defendant an unspecified benefit on the record just to get the defendant to waive a jury?  Amazing.....

Self-Represented Defendant (In Pro Pers)  In People v. Barnum (2003) 29 C4th 1210; 64 P.3d 788; 131 CR2d 499, an opinion authored by Chief Justice George, a unanimous California Supreme Court ruled that the Killpatrick-Kramer rule (Killpatrick v. Superior Court (1957) 153 CA2d 146 (Killpatrick), and People v. Kramer (1964) 227 CA2d 199 (Kramer), declaring that a trial court is required to advise a defendant who represents himself or herself of the privilege against compelled self-incrimination before such a defendant is called by the People as a witness in their case-in-chief, or testifies in his or her own defense, is unsound and, therefore, overruled.  The Court declared that this rule does not have any counterpart in the federal courts or in the courts of the vast majority of the sister states.  The general rule is that a trial court ordinarily is not required to give any advisement to a self-represented defendant who chooses to represent himself or herself after knowingly, intelligently, and voluntarily forgoing the assistance of counsel.

The Killpatrick-Kramer rule has existed for many years as a lone exception to this general rule of no mandatory advisement, requiring a trial court to advise such a defendant of the privilege against compelled self-incrimination, but of no other right, no matter how important.  Justification for singling out this privilege alone for such differential treatment never has been clear, and, upon full consideration, simply cannot be discerned.  Indeed, since Faretta (Faretta v. California (1975) 422 U.S. 806), the trial court has been required to make a defendant seeking to represent himself or herself aware of the dangers and disadvantages of self-representation, which include the defendant’s inability to rely upon the trial court to give personal instruction on courtroom procedure or to provide the assistance that otherwise would have been rendered by counsel.  Thus, a defendant who chooses to represent himself or herself after knowingly, intelligently, and voluntarily forgoing the assistance of counsel assumes the risk of his or her own ignorance, and cannot compel the trial court to make up for counsel’s absence.  For all of these reasons, the Court rejected the Killpatrick-Kramer rule.  The Court therefore did not reach the issue of the standard of prejudice for its violation.

In People v. Dent (2003) 30 C4th 213; 65 P.3d 1286, the California Supreme Court unanimously reversed a death penalty case due to a Faretta error (Faretta v. California (1975) 422 U.S. 806) on the part of the trial judge.  The Supreme Court held that when a motion to proceed pro se (represent oneself) is timely interposed, a trial court must permit a defendant to represent himself upon ascertaining that he has voluntarily and intelligently elected to do so, irrespective of how unwise such a choice might appear to be.  Furthermore, the defendant’s ‘technical legal knowledge’ is irrelevant to the court’s assessment of the defendant’s knowing exercise of the right to defend himself.” (citing People v. Windham (1977) 19 C3d 121, 128 (Windham), quoting Faretta, supra, 422 U.S. at p. 836.)  Thus, the erroneous denial of a Faretta motion is reversible per se. (citing McKaskle v. Wiggins (1984) 465 U.S. 168, 177, fn. 8.)  In a separate concurring opinion, however, Justice Chin echoed the late Justice Mosk's observation that Faretta, a noncapital case in which a general right of self-representation was recognized, did not distinguish between mere traffic infractions and the heightened requirement of cases in (as here) which the issue is life or death. (People v. Clark (1992) 3 C4th 41, 174 (dis. opn. of Mosk, J.).)  Justice Chin also sympathized with the late Justice Mosk's view that “[i]f there is the slightest doubt of the knowledge and abilities of the defendant to effectively duel with the skilled prosecutor, the trial court should deny self-representation at the very outset.” (Ibid.)  The problem, however, is that this view is not the law of the land. "There is much to be said for modifying Faretta, at least in capital cases," Justice Chin wrote, "to give the trial court discretion to deny a request for self-representation when no good ground exists for the request and the defendant is not capable of effective self-representation.  But such modification is not for us to do."  Ironically, "If he does request counsel," Chin said, "then all that the trial court's error in denying self-representation will have accomplished is to give defendant two trials, not just one, in which he is represented by counsel.  This result is hard to explain in any rational manner."  Both Justice Janice Brown, who authored the main opinion, and Justice Marvin Baxter, joined in Chin's concurrence.  Editor's Note: Well, the groundwork has obviously been set for this one to be taken up to the U.S. Supreme Court should the Attorney General's Office elect to do so and should the U.S. Supreme Court be inclined to modify its holding in Faretta relative to death-penalty cases.

Sixth Amendment Right To Counsel  In U.S. v. Danielson (2003) 325 F.3d 1054 (amended 5/19/03), a hotly contested Lacey Act case (USFWS case), the Court of Appeals held that where the prosecution team deliberately and affirmatively took steps, while the defendant was represented by counsel, that resulted in the prosecution team’s obtaining privileged information about the defendant's trial strategy, and where members of the prosecution team wrote and retained memoranda containing privileged trial strategy information, as well as recorded, listened to, transcribed, and retained the tapes and transcripts containing the privileged information and, in addition, the AUSA in charge of the prosecution retained in his private office memoranda and unredacted transcripts containing the privileged information, and where none of this material was produced to the defendant or his counsel during pretrial discovery, the government’s interference with the defendant's attorney-client relationship was neither accidental nor unavoidable, but was rather the result of deliberate and affirmative acts.  Therefore, the Court held that if there was prejudice, there was also a violation of the defendant's Sixth Amendment right (to counsel) under Weatherford v. Bursey, 429 U.S. 545 (1977).  For a determination of prejudice, the Court relied on U.S. v. Mastroianni (1984) 749 F.2d 900, and Kastigar v. U.S. (1972) 406 U.S. 441, to hold that the government has the “heavy burden” of proving nonuse of the defendant's trial strategy information.  The case was then remanded to the district court for an evidentiary hearing for a determination of prejudice under that standard.

Defendant's Pre-Trial Questioning Outside of Counsel's Presence  The 6th Amendment to the U.S. Constitution provides in part that “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the assistance of counsel for his defense.”  This right to counsel attaches “at or after the initiation of adversary judicial criminal proceedings — whether by way of formal charge, preliminary hearing, indictment, information, or arraignment.” (U.S. v. Gouveia (1984) 467 U.S. 180, 188.)  After it both attaches and is invoked, any incriminating statement the government deliberately elicits from a defendant in counsel’s absence is inadmissible at that defendant’s trial. (Massiah v. U.S. (1964) 377 U.S. 201, 205-206; In re Wilson (1992) 3 C4th 945, 950.)  In McNeil v. Wisconsin (1991) 501 U.S. 171, 175, however, the U.S. Supreme Court declared that the 6th Amendment right to counsel is “offense specific."  "That is to say, it attaches to offenses as to which adversary judicial criminal proceedings have been initiated — and to such offenses alone.” (People v. Clair (1992) 2 C4th 629, 657.) Thus, “[e]ven after an accused has counsel with regard to a particular charged offense, he or she may be questioned by police following Miranda advisements (Miranda v. Arizona (1966) 384 U.S. 436) with respect to any uncharged offense.  Incriminating statements pertaining to those uncharged offenses, as to which the 6th Amendment right has not yet attached, are admissible at a subsequent trial of those offenses.” (People v. Bradford (1997) 15 C4th 1229, 1313.)  Further, the U.S. Supreme Court recently held that the 6th Amendment right to counsel does not extend to uncharged offenses, even if they do happen to be inextricably intertwined factually with charged offenses. (Texas v. Cobb (2001) 532 U.S. 162; 121 S.Ct. 1335 and Blockburger v. U.S. (1932) 284 U.S. 299)  In Blockburger v. U.S., supra, the U.S. Supreme Court explained that “where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.” (Id., at 304.)  The Court has since applied the Blockburger test to delineate the scope of the 5th Amendment’s Double Jeopardy Clause, which prevents multiple or successive prosecutions for the “same offence.” See, e.g., Brown v. Ohio (1977) 432 U.S. 161, 164–166.  The Court held that there was no constitutional difference between the meaning of the term “offense” in the contexts of double jeopardy and of the right to counsel.  Accordingly, the Court held that when the 6th Amendment right to counsel attaches, it does encompass offenses that, even if not formally charged, would be considered the same offense under the Blockburger test. 

In People v. Slayton (2001) 26 C4th 1076; 32 P.3d 1073; 112 CR2d 561, the California Supreme Court held that where the defendant was stopped while driving a stolen car, and where he was arraigned and jailed in Riverside County on various charges including violating VC §10851(a) - car theft - as well as receiving stolen property (PC §496) and when, after counsel had been appointed, the defendant was questioned in jail by a San Bernardino County detective and where the defendant waived his Miranda rights and confessed to a burglary and to taking the car in which he had been apprehended in Riverside County, part of the confession had to be supprerssed due to the fact that similar charges were filed against the defendant in San Bernardino, i.e., VC §10851(a) - car theft.  The California Supreme Court noted that after the state appellate court's decision, the U.S. Supreme Court decided Texas v. Cobb, supra, in which the high court expressly rejected the suppression of a confession for an uncharged offense, even if it did happen to be inextricably intertwined factually with any charged offenses.  However, after applying the U.S. Supreme Court's reasoning in Cobb, supra, it concluded that the trial court erred in suppressing the defendant's statement as to the burglary, as under Cobb and Blockburger, supra, it was unquestionably not the same as any of the offenses charged in Riverside County, although the car theft charge - VC §10851(a) - was, and that confession was to be suppressed.

Right To Conflict-Free Counsel   In Campbell v. Rice (2002) 302 F.3d 892, the Ninth Circuit has held that where a constitutional right to counsel exists, the United States Supreme Court's Sixth Amendment cases hold that there is a correlative right to representation that is free from conflicts of interest. (See, Woods v. Georgia (1981) 450 U.S. 261, 271.)  When a trial court is made aware of an attorney's actual or potential conflict of interest, Supreme Court precedent requires that the trial court either appoint separate counsel or take adequate steps to ascertain whether the risk was too remote to warrant separate counsel (See, Holloway v. Arkansas (1978) 435 U.S. 475, 484.)  The trial court's failure to appoint separate counsel or inquire into the attorney's potential conflict of interest amounts to a violation of the defendant's Sixth Amendment rights.  In Mickens v. Taylor (2002) 535 U.S. ___, the U.S. Supreme Court held that in order to demonstrate a Sixth Amendment violation where the trial court fails to inquire into a potential conflict of interest about which it knew, or reasonably should have known, a defendant must establish that the alleged conflict of interest adversely affected his or her counsel's performance in order to prevail on the issue.

Forfeiture of Right To Counsel  In King v. Superior Court (2003) (4/8/03; 03 C.D.O.S. 3052; 132 CR2d 585; ___ CA4th ___) the Court of Appeals held that in balancing the great importance of the right to counsel against the need to protect counsel and the orderly administration of justice, an accused may forfeit his right to counsel by a course of serious misconduct towards counsel that illustrates that lesser measures to control defendant are insufficient to protect counsel and appointment of successor counsel is futile.  In rare cases where the misconduct is so serious that lesser measures are patently inadequate to protect counsel, an accused may forfeit his right to counsel without employing the patently inadequate lesser measures. Forfeiture of counsel should be a court’s last resort and generally forfeiture should occur only after lesser measures to control defendant, including but not limited to a warning and physical restraints or protections, have failed.  Further, forfeiture of counsel can occur only after a hearing at which defendant is afforded full due process protections, including the assistance of counsel.  Here, defendant engaged in a pattern of serious misconduct, violence and threats of violence, against a succession of court-appointed attorneys. However, the record did not reveal what measures to control and prevent defendant's violence, such as restraining him, were attempted.  Moreover, the trial court found defendant forfeited his right to counsel at a hearing in which defendant's attorney not only did not represent his interests, but in fact, argued against defendant and in favor of forfeiture.  Accordingly, the trial court's order of forfeiture of counsel was reversed and remanded for further proceedings.

Right To Effective Assistance of Counsel (Ineffective-Assistance-Of-Counsel Claims)  In order to resolve a split between the various Circuit Courts of Appeal, a unanimous U.S. Supreme Court in Massaro v. U.S. (2003) 538 U.S. ___, overruled the Second Circuit Court of Appeals and held that an ineffective-assistance-of-counsel claim may be brought in a collateral proceeding under 28 USC §2255 (federal habeas corpus petition), whether or not the petitioner could have raised the claim on direct appeal.  Requiring a criminal defendant who is represented by new appellate counsel to bring ineffective-assistance claims on direct appeal does not promote the procedural default rule’s objectives: conserving judicial resources and respecting the law’s important interest in the finality of judgments.  Applying that rule to ineffective-assistance claims would create a risk that defendants would feel compelled to raise the issue before there has been an opportunity to fully develop the claim’s factual predicate, and would raise the issue for the first time in a forum not best suited to assess those facts, even if the record contains some indication of deficiencies in counsel’s performance.  A 28 USC §2255 motion is preferable to direct appeal for deciding an ineffective-assistance claim.  The Court reasoned that when a claim is brought on direct appeal, appellate counsel and the court must proceed on a trial record that is not developed precisely for, and is therefore often incomplete or inadequate for, the purpose of litigating or preserving the claim.  A defendant claiming ineffective counsel must show that counsel’s actions were not supported by a reasonable strategy and that the error was prejudicial. (Strickland v. Washington (1984) 466 U.S. 668.)  The evidence introduced at trial, however, will be devoted to guilt or innocence issues, and the resulting record may not disclose the facts necessary to decide either prong of the Strickland analysis.  Under the rule announced here, ineffective-assistance claims ordinarily will be litigated in the first instance in the district court, the forum best suited to developing the facts necessary to determining the adequacy of representation during an entire trial.  The court may take testimony from witnesses for the defendant and the prosecution and from the counsel alleged to have rendered the deficient performance.   In addition, the 28 USC §2255 motion often will be ruled upon by the district judge who presided at trial, who should have an advantageous perspective for determining the effectiveness of counsel’s conduct and whether any deficiencies were prejudicial.  The Supreme Court, however, did not hold that ineffective-assistance claims must be reserved for collateral review, as there may be cases in which trial counsel’s ineffectiveness is so apparent from the record that appellate counsel will raise the issue on direct appeal, or in which obvious deficiencies in representation will be addressed by an appellate court sua sponte.  In such cases, certain questions may arise in subsequent 28 USC §2255 proceedings concerning the conclusiveness of determinations made on the claims raised on direct appeal; but these implementation matters were not presently before the Court.

But in Stewart v. Smith (2002) 536 U.S. ___, a per curiam decision by the high Court, the U.S. Supreme Court held that a state-prisoner (defendant) can effectively waive his claim of ineffective-assistance-of-counsel by filing repeated petitions with the state court.  After certifying a question of law to the Arizona Supreme Court, which question was answered as follows: “We hold that at the time of respondent’s third Rule 32 petition in 1995, the question whether an asserted claim was of ‘sufficient constitutional magnitude’ to require a knowing, voluntary and intelligent waiver for purposes of Rule 32.2(a)(3), see Comment to 32.2(a)(3), depended not upon the merits of the particular claim, but rather merely upon the particular right alleged to have been violated.” Stewart v. Smith, ___ Ariz. ___, 46 P. 3d 1067, 1068 (2002) (en banc).  Hence, the high Court determined that, "Our cases make clear that “when resolution of [a] state procedural law question depends on a federal constitutional ruling, the state-law prong of the court’s holding is not independent of federal law, and our [direct review] jurisdiction is not precluded.” (Ake v. Oklahoma (1985) 470 U.S. 68, at p. 75.)   Even assuming that the same standard governs the scope of a district court’s power to grant federal habeas relief as governs this Court’s jurisdiction to review a state-court judgment on direct review, see Coleman v. Thompson (1991) 501 U.S. 722, 729–732, 741, Rule 32.2(a)(3) determinations are independent of federal law because they do not depend upon a federal constitutional ruling on the merits.   The District Court properly refused to review respondent’s ineffective-assistance-of-trial-counsel claim.  The Ninth Circuit erred in holding otherwise."

Sanctioning Counsel  In People v. Muhammad (2003) (4/29/03; 03 C.D.O.S. 3694; ___ CA4th ___), the Court of Appeals held that although the court found that the prosecutor had improperly exercised peremptory challenges, leading to a mistrial and dismissal of the venire panel (People v. Wheeler (1978) 22 C3d 258), the trial court, acting under CCP §177.5, levied a $1,500 sanction (fine) against the prosecutor in the case for such conduct.  Although the Court of Appeals found sufficient support in the record for the trial court's finding, it was the required application of CCP §177.5 that a court order be violated that troubled the Court of Appeals.  Here, there was simply no such underlying order (and, hence, no violation).  Since the statute did not apply, and because the trial court lacks inherent power to impose the fine, the order imposing it was reversed.

In U.S. v. Leonti (2003) (4/24/03; 03 C.D.O.S. 3419; ___F.3d ___), the Ninth Circuit held in a case of first impression that an ineffective-assistance-of-counsel claim could be made by a defendant against his attorney in the event the attorney failed to assist the client in cooperating with the government.  The 6th Amendment guarantee of competent counsel applies to the process of cooperation with the government because this is a critical stage of the proceeding for those charged with federal crimes.  Taken as true, defendant's factual allegations state a claim for relief based on his attorney’s failure to be a meaningful advocate during the defendant's attempted cooperation, and the effect this failure likely had on the government’s decision not to make a substantial assistance motion (downward departure at time of sentencing).  Because there were issues of fact whose resolution could have led to such a finding, the district court’s decision not to grant an evidentiary hearing was an abuse of discretion.

Confrontation Clause - Right To Confront Witnesses  In People v. Murphy (2003) (4/15/03; 03 C.D.O.S. 3197; ___ CA4th ___) the Court of Appeals recognized that the Sixth Amendment of the U.S. Constitution guarantees a criminal defendant "the right . . . to be confronted with the witnesses against him."  The right of confrontation ordinarily requires a face-to-face encounter. (Coy v. Iowa (1988) 487 U.S. 1012, 1016  ["We have never doubted . . . that the Confrontation Clause guarantees the defendant a face-to-face meeting with witnesses appearing before the trier of fact"]; Ohio v. Roberts (1980) 448 U.S. 56, 63  ["The Court has emphasized that the Confrontation Clause reflects a preference for face-to-face confrontation at trial"]; see also Mattox v. United States (1895) 156 U.S. 237, 242-243.).  In an oral copulation case by force or fear (PC§288a) and felony false imprisonment (PC §§236, 237), the Court of Appeals held that the defendant was denied his federal constitutional right of confrontation of a witness against him when the trial court consented to the prosecution's request to use a one-way glass without holding an evidentiary hearing to determine whether, and to what degree, the testifying victim's apparent anxiety was due to the defendant's presence rather than, for instance, the witness's general emotional fragility or the trauma of testifying in court or revisiting a past experience the witness would rather not recall.  The Court went on to state that, "Even assuming that, in an appropriate case, the court might allow a testifying adult victim, who would otherwise be traumatized, to use a one-way screen to avoid seeing a defendant without violating the right of confrontation, we do not think a court may do so without making the necessary factual findings based upon evidence.  In other words, a court may not, as the court did in this case, dispense with complete face-to-face confrontation merely upon a prosecutor's unsworn representation that defendant's presence was part of a distraught adult witness's problem.  In our view, the court's ruling was not based upon an adequate "case-specific finding of necessity." (Maryland v. Craig (1990) 497 U.S. 836 at p. 855.)  We are unable to say that the error was harmless beyond a reasonable doubt (Chapman v. California (1967) 386 U.S. 18, 24), especially since the pivotal issue was the alleged victim's credibility."

The Court stated that neither the court in People v. Williams, infra, nor the People in this case (Murphy) have identified any authority recognizing or establishing that the state has "transcendent" or "compelling" interest in protecting adult victims of sex crimes (versus protecting children) from further psychological trauma that might result from testifying face-to-face with a defendant.  Moreover, the trial court in this case was not relying upon the state's interest in protecting adult victims but, instead, predicated its ruling on the state's interest in ascertaining the truth.  (See §1044; see also Evid. Code, §765(a).)  As articulated in Coy, supra, the governmental interest in discovering the truth historically and traditionally cuts the other way.

In People v. Kons (2003) (5/5/03; 03 C.D.O.S. 3843; ___ CA4th ___), the Court of Appeals reversed the defendant’s convictions for attempted murder and assault with a firearm and remanded the case for a new trial as a result of the trial court allowing into evidence (under Evidence Code §1370) certain hearsay statements by the victim as to the identity of his assailant - the only evidence as to the identity of the defendant as the shooter.   The Court held this was error inasmuch as it denied defendant his 6th Amendment right of confronation (the victim did not testify at the defendant's trial) citing Justice Scalia's discussion of the importance of the confronattion clause in terms of fairness in Coy v. Iowa (1988) 487 U.S. 1012; 101 L.Ed.2d 857 - "it is easier to lie behind someone’s back than to his face.  The confrontation clause provides two types of protection to a criminal defendant: the right to confront his accuser and the right to conduct cross-examination."

But see, People v. Williams (2002) 102 CA4th 995; 125 CR2d 884 (review denied January 15, 2003) where the appellate court rejected the defendant's contention that he had been denied his rights to confront witnesses, to be present at trial and to due process of law, when the trial court allowed the prosecution to present the testimony of an extremely distraught adult victim prosecuting witness, who suffered from established physical and mental disabilities, to testify at trial by means of a prior videotape examination in lieu of a live examination during trial.   In the Williams case, the victim's psychologist opined at a hearing that the victim "would not be able to testify in the courtroom situation where all parties were present" because "[t]he panic, anxiety and fear would overwhelm her."  The victim was examined in courtroom out of the presence of the jury and the defendant.  Defendant heard the victim's testimony from a wired detention cell and defense counsel was able to go to the detention cell and confer with appellant before ending his cross-examination.  "The videotape was thereafter played for the jury with appellant present in the courtroom. The jury was not permitted to know that the witness was unable to testify in front of appellant."   The videotape played for the jury was recorded while the witness was in the courtroom and examined and cross-examined by counsel, and while appellant was in a detention cell wired so he could hear the witness and communicate with his counsel.  In Williams, the Court held that the trial court properly admitted into evidence and played for the jury the videotaped recording of a police interview of the prosecuting witnesses.  The recording was admissible as a prior consistent statement (Evid. Code, §§1236, 791(b)) and not unduly prejudicial (Evid. Code, §352).

In People v. Cromer (2001) 24 C4th 889; 15 P.3d 243; 103 CR2d 23, the California Supreme Court held that the confrontation clauses of both the federal and state Constitutions guarantee a criminal defendant the right to confront the prosecution’s witnesses. (U.S. Const., 6th Amend.; Cal. Const. art. I, § 15.)  However, that right is not absolute, as an exception exists when a witness is unavailable and, at a previous court proceeding against the same defendant, has given testimony that was subject to cross-examination.  Under federal constitutional law, such testimony is admissible if the prosecution shows it made “a good-faith effort” to obtain the presence of the witness at trial. (Barber v. Page (1968) 390 U.S. 719, 725; accord, Ohio v. Roberts (1980) 448 U.S. 56, 74.)  California allows introduction of the witness’s prior recorded testimony if the prosecution has used “reasonable diligence” (often referred to as due diligence) in its unsuccessful efforts to locate the missing witness. (Evid. Code, §240(a)(5).)  In addition, the appellate standard of review is de novo review versus the lesser standard of abuse of discretion.  Thus, where the prosecution's efforts fail to measure up (not sufficient due diligence to locate and subpoena the witness), the defendant's right of confrontation is abridged when a trial court erroneously admits prior testimony and, therefore, the conviction must be reversed.

In People v. Tatum (2003) (4/29/03; 03 C.D.O.S. 3697; ___ CA4th ___), the Court of Appeals held that the trial court did not err in admitting the videotaped statements of an elderly victim who later died of natural causes, but before the time of trial, into evidence under the Elder and Dependent Adults exception to the hearsay rule (Evid Code §1380), because statements were both trustworthy and reliable.  But, in People v Duarte (2000) 24 C4th 603; 12 P.3d 1110; 101 CR2d 701, the California Supreme Court reversed defendant's convictions for shooting at an inhabited dwelling, conspiracy, and assault with a firearm after the trial court erroneously admitted into evidence a police sergeant’s hearsay testimony relating an alleged accomplice’s post-arrest declarations that implicated defendant as well as the declarant.  The Court concluded this inadmissible hearsay evidence amounted to prejudicial error inasmuch as it denied the defendant his right to confront witnesses against him at trial.   In addition, in Alvarado v. Superior Court (2000) 23 C4th 1121; 5 P.3d 203; 99 CR2d 149, a case involving the prosecution of defendant for a violent prison murder, the California Supreme Court held that a trial court's order that authorized, in advance of trial and without regard to the evidence and circumstances as they then may appear, the permanent nondisclosure of the identity of the prosecution's witnesses to the defense, was unconstitutional (a violation of the confrontation clause) inasmuch as it would prevent effective cross-examination by the defendant.  However, the Court held that the trial court remained free to fashion a more limited order denying, restricting, or deferring disclosure of the identity of each witness before trial (including limiting disclosure solely to defendant's counsel), as long as that order does not impermissibly impair the defendant's right to confront and crossexamine the witnesses effectively at trial.

In U.S. v. Etimani (2003) (4/21/03; 03 C.D.O.S. 3274; ___ F.3d ___), the Ninth Circuit held that under 18 USC §3509, which sets forth the procedure for an alleged child victim to testify outside physical presence of defendant via two-way closed circuit television, the television monitor must be called to the child’s attention and be readily visible from where he or she is seated, but that it does not have to be in his or her direct field of vision while he or she is facing forward.  In addition, the Court agreed with the district court that the defendant could not be sentenced to mandatory life imprisonment under the “two strikes” provision of 18 USC §2241(c) inasmuch as the defendant previously had pled no-contest in a California state court to “lewd and lascivious conduct upon a child.” The district court ruled that the government failed to establish that the defendant’s California conviction involved a “sexual act” — as opposed to “sexual contact” — as defined by federal law. The Ninth Circuit agreed that the prior conviction was not shown to qualify as a “first strike” for purposes of 18 USC§2241(c).

Defendant's "Voluntary" Absence During Trial - Confrontation Right Waiver  In People v. Gutierrez (2003) 29 C4th 1196; 63 P.3d 1000; 130 CR2d 917, a unanimous California Supreme Court held that in the case where a defendant voluntarily absented himself from the courtroom in the middle of a felony jury trial, and where the trial court took reasonable steps to determine that the defendant's absence (refusal to leave lockup and enter the court) was, in fact, voluntary (PC §1043)(b)(2)), and where the trial court further admonished the jury not to consider the fact of defendant's absence during their deliberations, it was proper and lawful for the trial court to continue on with the jury trial in the absence of that same defendant.

Shackling Defendant During Trial  In Dyas v. Poole (2003) 321 F.3d 934, the Ninth Circuit affirmed the district court's granting of a state prisoner's petition for a writ of habeas corpus on the grounds that it was both unconstitutional as well as prejudicial error for the defendant to be shackled during her jury trial.  Since the state trial court did not perform any fact-finding investigation regarding prejudice to the defendant, nor did the state appellate court order any such investigation, the U.S. District Court performed the investigation and determined the shackling to be both prejudicial and unconstitutional.  Therefore, it granted the petitioner's writ.  The Ninth Circuit affirmed the district court's ruling. Editor's Note:  See, People v. Duran (1976) 16 C3d 282 for state court's view on the subject of shackling during trial.

Stun-Belt Use During Trial  In People v. Mar (2002) 28 C4th 1201; 52 P.3d 95; 124 CR2d 161, the California Supreme Court held that, with respect to the Court's prior holding in People v. Duran (1976) 16 C3d 282, the general principles set forth in Duran that apply to the use of traditional types of physical restraints (shackling), also apply to the use of a stun belt during trial.  However, in this instance, the Supreme Court concluded that the trial court’s ruling compelling the defendant to wear a stun belt while testifying on his own behalf was erroneous under the very principles set forth in Duran.   The Court also concluded that the error was prejudicial.  Accordingly, the judgment of conviction was reversed and the matter remanded for a new trial.

Defendant's Mental Competence  In People v. Rells (2000) 22 C4th 860; 996 P.2d 1184; 94 CR2d 875, the California Supreme Court held that for a trial of a defendant’s mental competence, PC §1369 establishes a presumption that the defendant is mentally competent unless he is proved by a preponderance of the evidence to be otherwise.  In so doing, the statute operates to impose the burden of proof on the party who claims that the defendant is mentally incompetent, and fixes the weight thereof at preponderance of the evidence.  The question here (Rells) was whether PC §1372 does the same for a hearing on a defendant’s recovery of mental competence after previously being found incompetent.  The Court answered this question affirmatively.  Thus, for a hearing on a defendant’s recovery of mental competence, PC §1372, unlike PC §1369, does not expressly establish a presumption that the defendant is mentally competent unless he is proved by a preponderance of the evidence to be otherwise.  The Court, however, held that the statute impliedly provides that one is presumed competent.  The presumption that the defendant is mentally competent, unless he is proved by a preponderance of the evidence to be otherwise, is applicable at a trial of the defendant’s mental competence, in spite of the fact that it may run counter to any doubt expressed by the court and supported by the opinion of his own counsel.   This presumption is applicable as well at a retrial of the defendant’s mental competence, which is mandatory when the defendant has been committed for 18 months and remains so without a certificate of restoration to mental competence filed by a specified mental health official, and in spite of the fact that it is inconsistent with his apparent non-recovery of mental competence.   Therefore, in the Court's view, this presumption is to be applicable at any hearing on the defendant’s mental competence, whether it is a PC §1369 or PC §1372 hearing.

Judicial Misconduct  In a rare display of public anger at a trial judge, in People v. Abbaszadeh (2003) 106 CA4th 642; 130 CR2d 873, the Third District Court of Appeals overturned another conviction on the basis of the trial judge's misconduct (People v. Mello (2002) 97 CA4th 511; 118 CR2d 523 (Mello) - error where trial judge instructing prospective jurors to lie about racial prejudice and make up reasons to avoid jury service) is reversible regardless of the lack of any objection by the defendant in the trial court.  Here, Placer County's Judge Joseph O'Flaherty conduct so outraged the Court of Appeals, that it forwarded its opinion on to the State Commission on Judicial Performance for a determination whether Judge O'Flaherty's actions constituted actionable judicial misconduct.  (Editor's Note:  This was the second time that the Court of Appeals has reversed Judge O'Flaherty for such conduct, as the Mello case, supra, was the first published decision the the Court in April, 2002 for this very same conduct - now referred to as a Mello error.  Obviously, as the Court noted, Judge O'Flaherty has a noted problem in terms of dealing with the issue of juror racism.)

Discharging A Juror  The Appellate Court held in People v. Karapetyan (2003) 106 CA4th 609; 130 CR2d 849, that pursuant to Penal Code §1089, a trial court may excuse a juror if the juror is unable to perform his or her duty.   In reviewing the court’s decision to replace a juror with an alternate, the appellate court reviews the trial court's decision under the standard of whether there has been an abuse of discretion.  However, the juror’s inability to perform as a juror "must appear in the record as a demonstrable reality." (People v. Marshall (1996) 13 C4th 799, 843.)   In People v. Williams (2001) 25 C4th 441; 21 P.3d 1209; 106 CR2d 295, the California Supreme Court justified removing a juror once the required showing had been made as a demonstrable reality.  A refusal to deliberate is a manifestation of an inability to perform his or her duty as required by Penal Code §1089. (People v. Cleveland (2001) 25 C4th 466, 474-475; 21 P.3d 1225; 106 CR2d 313 (a companion case to People v. Williams).  As pointed out by Cleveland, to protect the sanctity and secrecy of jury deliberations, caution should be used in making inquiries as to whether a juror is refusing to deliberate. (People v. Cleveland, supra, at p. 480.)  However, once the court has been placed on notice as to possible juror misconduct, the court must investigate whether there are grounds for replacing the juror.   In determining whether to discharge a juror because of a failure to deliberate, Cleveland teaches us, “A refusal to deliberate consists of a juror’s unwillingness to engage in the deliberative process; that is, he or she will not participate in discussions with fellow jurors by listening to their views and by expressing his or her own views.  Examples of refusal to deliberate include, but are not limited to, expressing a fixed conclusion at the beginning of deliberations and refusing to consider other points of view, refusing to speak to other jurors, and attempting to separate oneself physically from the remainder of the jury.  The circumstance that a juror does not deliberate well or relies upon faulty logic or analysis does not constitute a refusal to deliberate and is not a ground for discharge. Similarly, the circumstance that a juror disagrees with the majority of the jury as to what the evidence shows, or how the law should be applied to the facts, or the manner in which deliberations should be conducted does not constitute a refusal to deliberate and is not a ground for discharge.   A juror who has participated in deliberations for a reasonable period of time may not be discharged for refusing to deliberate, simply because the juror expresses the belief that further discussion will not alter his or her views. (People v. Cleveland, supra, 25 C4th at p. 485.).  Thus, the trial court's removal of a juror in Karapetyan, supra, and which juror had deliberated for some five (5) days, but disagreed with the majority and who indicated that he was voting "not guilty" and need not deliberate further, was determined to be an abuse of the trial court's discretion, and prejudicial error.  Under those circumstances, the trial court simply could not discharge the juror pursuant to PC §1089.  Rather, the jury was deadlocked, and the court was duty-bound to declare a mistrial and excuse all of the jurors.

Improper Discharge of Juror - Double Jeopardy?  In People v. Hernandez (2003) 30 C4th 1; 64 P.3d 800; 131 CR 2d 514) the California Supreme Court held that, in the case where the trial court has improperly discharged a single seated juror during a criminal trial, that the improper discharge warrants only a reversal of the ensuing judgment of conviction, but it does not bar the retrial of the defendant on double jeopardy principles.  Here, the defendant was entitled to the benefit of a reversal of his conviction by reason of the error in excusing the juror, he was not, however, also immune from reprosecution.  The Supreme Court held that as a general rule, the double jeopardy guarantee imposes no limitation on the power to retry a defendant who has succeeded in having his conviction set aside on appeal on grounds other than insufficiency of evidence. (E.g., U.S. v. DiFrancesco (1980) 449 U.S. 117, 131.)  Accordingly, the Court of Appeal’s ruling that defendant is immune from reprosecution was reversed.

Prosecutorial Misconduct - Double Jeopardy? In People v. Batts (2003) (5/19/03; 03 C.D.O.S. 4153; ___ CA4th ___), the California Supreme Court set a new standard for barring retirals of defendants in instances of intentional prosecutorial misconduct.  After an earlier joint trial on first degree murder indictments ended in mistrial as the result of the prosecution’s intentional misconduct, defendants were retried and convicted of those same charges.  The Court of Appeal reversed the convictions, holding that the trial court erred by failing to grant defendants’ pretrial motions to dismiss on double jeopardy grounds, and remanding with directions to enter judgments of dismissal as to each defendant.  The California Supreme Court granted review to consider the circumstances under which a prosecutor’s intentional misconduct that results in a mistrial precludes retrial on double jeopardy grounds under the Fifth and Fourteenth Amendments to the federal Constitution, and under article I, section 15, of the California Constitution.

With regard to the federal constitutional double jeopardy issue, the U.S. Supreme Court held in Oregon v. Kennedy (1982) 456 U.S. 667 that under the federal double jeopardy clause a retrial is prohibited following the grant of a defendant’s mistrial motion only if the prosecution committed the misconduct with the intent to provoke a mistrial.  Applying this standard and deferring, as Kennedy instructs, to the factual findings of the trial court, the Supreme Court concluded that the prosecution in the earlier trial in this matter had no such intent, and that the Court of Appeal accordingly erred in concluding that the trial court should have granted defendants’ motion to dismiss under federal double jeopardy principles.   The standard adopted by the federal high court in Kennedy has been widely viewed as unduly narrow and as not fully protective of the interest that the double jeopardy clause was intended to safeguard, and in the two decades since Kennedy was decided a number of state courts have interpreted the double jeopardy guarantee of their own state constitutions as embodying a broader protection.  Although the standards adopted in these more recent decisions vary somewhat from one another, the Supreme Court agreed with the basic conclusion of these courts that instances in which a prosecutor commits misconduct with the intent to provoke a mistrial do not exhaust the circumstances in which a prosecutor’s intentional misconduct improperly may defeat the interest that the double jeopardy clause is intended to safeguard.

Accordingly, with respect to the state constitutional double jeopardy issue, the Court concluded that when prosecutorial misconduct results in a defendant’s successful motion for mistrial, the double jeopardy clause of the California Constitution bars retrial in two circumstances. First, as under the federal Constitution, retrial is barred by the state double jeopardy clause when the prosecution intentionally commits misconduct for the purpose of triggering a mistrial.  Second, the state double jeopardy clause also may bar retrial when the prosecution, believing (in view of events that occurred during trial) that a defendant is likely to secure an acquittal at that trial, knowingly and intentionally commits misconduct in order to thwart such an acquittal.  In the latter circumstance, however, retrial is barred under the state double jeopardy clause only if a court, reviewing all of the circumstances as of the time of the misconduct, finds not only that the prosecution believed that an acquittal was likely and committed misconduct for the purpose of thwarting such an acquittal, but also determines, from an objective perspective, that the prosecutorial misconduct deprived the defendant of a reasonable prospect of an acquittal.  In other words, the Court concluded that when the prosecution in a criminal case commits misconduct that results in a mistrial, the double jeopardy clause of the state Constitution bars retrial in some circumstances in which the federal Constitution, as construed in Kennedy, supra, 456 U.S. 667, does not.  Editor's Note: Per PC §1016, "There are six kinds of pleas to an indictment or an information, or to a complaint charging a misdemeanor or infraction: ..... 5. Once in jeopardy." Thus the issue of double jeopardy is a plea and not a motion.  Evidently, however, a pre-trial motion asserting the defense of double jeopardy is sufficient to preserve the issue on appeal.  Possibly though, this was a case of IAC inasmuch as defense counsel should have pled "Once in Jeopardy", and thus, put the matter at issue and, at trial, have called the prosecutor as a witness and cross-examined him (the devil prosecutor) on his obvioulsy evil motivation!!  Lesson learned here ...... know your criminal procedure!!  (See, also, In re Lozoya (1956) 146 CA2d 702, 704 [double jeopardy issue may be raised on appeal]); In re McNeer (1959) 173 CA2d 530, 531-534 [double jeopardy issue may be raised on habeas corpus].)

Peremptory Challenge of Judge After Reassignment Post PC §995 Motion  In Ziesmer v. Superior Court (2003) 107 CA4th 360; 132 CR2d 130, the Court of Appeal held that where the dismissal of a grand jury indictment pursuant to PC §995 (a)(1)(A) terminates the action, and where that action is then refiled by the prosecution and assigned to the same judge to whom the case was originally assigned, a party may disqualify the judge pursuant to CCP §170.6 even if the case has been previously assigned to that same judge "for all purposes" and the peremptory challenge is made the day prior to the defendant's arraignment.  Here, the Court granted the defendant's petition for writ of mandate and directed the trial court to vacate its order denying defendant's timely peremptory challenge to the
judge assigned to his case.

Directed Verdict - NGI Plea  In People v. Ceja (2003) 106 CA4th 1071; 131 CR2d 601, the Court of Appeals held that there was no constitutional infirmity, either under the California Constitution or the U.S. Constitution, for a judge to remove the issue of sanity from the jury when the defendant fails to present evidence sufficient to support the special plea.  As recognized by Justice Brown in her solo concurring opinion in Hernandez (People v. Hernandez (2000) 22 C4th 512, 93 CR2d 509), and the prior cases involving double jeopardy, courts retain an inherent power to remove an affirmative defense from the jury where there is no evidence to support it.  However, Justice Brown's concurring opinion was just that - "concurring" and not that of the majority of the Supreme Court.  In Hernandez, supra, the Supreme Court held that "trial court was not authorized to dismiss the sanity proceedings pursuant to PC §1385(a), or to direct a verdict on the issue." (emphasis added)  Thus, the statutory authority for this trial court power remains unclear, if not down right elusive, as the Ceja Court noted that CCP §630 (directed verdict power by courts in civil trials) probably could not be used as statutory authority for a trial court presiding over a criminal trial, nor could PC §1118.1 be used, since it applied to a trial court's authority to enter an acquittal of the criminal charges against the defendant (i.e., in favor of the defendant), nor could PC §1385 be used, as the Supreme Court previously pointed out in Hernandez, supra.  Therefore, according to the Ceja Court, we are merely left with the trial court's "inherent authority" to direct a verdict in the setting of a "not guilty by reason of insanity" (NGI) plea.  Lastly, the Court in Ceja pointed out that in 1993 the Legislature added PC §25.5, which precluded an NGI defense "solely on the basis of a personality or adjustment disorder, a seizure disorder, or an addiction to, or abuse of, intoxicating substances."  Here, the defendant claimed to have developed his mental problems as a result of taking illicit drugs (LSD).  Editor's Note:  This appears to be another really screwy opinion coming from the Second District, evidently, as a result of an effort to save face for its earlier reversal in Hernandez, supra.  Strange!

Post-Verdict Information Amendments  In People v. Tindall (2000) 24 C4th 767; 14 P.3d 207; 102 CR2d 533 , the California Supreme Court held that the prosecution could not amend an information post-verdict in order to add special allegations (prior conviction allegations) before sentencing but after the jury had been discharged.  PC §1025(b) provides the defendant the statutory right to have the same jury decide both the issue of guilt and the truth of any prior conviction allegations. Because the jury in this case was discharged before the prosecution amended the information to add additional priors, defendant did not have the same jury, as required under section §1025(b).  Thus, the Court held that the trial court exceeded its jurisdiction in permitting such an amendment.

Trial Venue  Venue (County in which a case is tried) for a criminal trial is typically determined by PC §§777, et seq. - "the jurisdiction of every public offense is in any competent court within the jurisdictional territory (County) of which it is committed."  In People v. Simon (2002) 25 C4th 1082; 25 P.3d 598; 108 CR2d 385, the California Supreme Court ruled that pursuant to the general legal doctrine that a party may forfeit a right by failing to assert it in a timely fashion, a defendant in a felony proceeding forfeits a claim of improper venue when he or she fails specifically to raise such an objection prior to the commencement of trial.  In light of the fundamental purposes underlying criminal venue provisions, the interests of both the accused and the state support a requirement that any objection to the proposed location of a felony trial must be specifically raised prior to the commencement of trial, before the defendant is required to undergo the rigors and hardship of standing trial in an assertedly improper locale, and before the state incurs the time and expense of conducting a trial in that county.  Although, in light of the confusion in the prior California case law, the Court's holding with regard to the proper procedure for raising an objection to venue was ordered to be applied only prospectively (i.e., post 6-25-01).

PC §784.7(a) provides "When more than one violation of PC §220, except assault with intent to commit mayhem, §261 [rape], §262 [spousal rape], §264.1 [rape or genital penetration in concert], §269 [sex crime against child under 14 and 10 years younger than defendant], §286 [sodomy], §288 [lewd or lascivious conduct with child under 14], §288a [oral copulation], §288.5 [continual sexual abuse of child], or §289 [forcible sexual penetration], occurs in more than one jurisdictional territory, the jurisdiction of any of those offenses, and for any offenses properly joinable with that offense, is in any jurisdiction where at least one of the offenses occurred, subject to a hearing, pursuant to PC §954 [joinder/severance hearing], within the jurisdiction of the proposed trial.   At the PC §954 hearing, the prosecution shall present evidence in writing that all district attorneys in counties with jurisdiction of the offenses agree to the venue.  Charged offenses from jurisdictions where there is no written agreement from the district attorney shall be returned to that jurisdiction."

PC §784.7(b) separately provides when more than one violation of PC §273a [child endangerment], §273.5 [infliction of corporal injury], or §646.9 [stalking] occurs in more than one jurisdictional territory, and the defendant and the victim are the same for all of the offenses, the jurisdiction of any of those offenses and for any offenses properly joinable with that offense, is in any jurisdiction where at least one of the offenses occurred.  Thus, under PC §784.7(b), no PC §954 hearing is required.  In Price v. Superior Court (2001) 25 C4th 1046; 25 P.3d 618; 108 CR2d 409, the California Supreme Court held that PC §784.7(b) created a multi-county venue for trial of offenses involving sexual or child abuse by the same defendant against the same victim.  It thus created a venue for trial of some offenses in a county other than that in which those offenses occurred.  PC §784.7(b) was enacted to protect repeat victims of child abuse or molestation and victims of domestic violence, offenses that are often inflicted on the same victim by the same perpetrator, from the need to make multiple court appearances to testify against the perpetrator and to reduce costs of separate trials. Hence, against a federal constitutional challenge, the Court held "the history of the Fourteenth Amendment does not indicate an intent to incorporate the vicinage clause of the Sixth Amendment, and vicinage today is not a fundamental aspect of the right to jury trial necessary to ensure a fair trial, we conclude that the vicinage clause is not applicable in a state criminal trial."  Moreover, in one swipe of the pen, the Court held in footnote 13 that, to the extent that the Court’s prior decisions in People v. Jones (1973) 9 C3d 546, Hernandez v. Municipal Court (1989) 49 C3d 713, People v. Coddington (2000) 23 C4th 529, 573; People v. Danielson (1992) 3 C4th 691, 704; People v. Hill (1992) 3 C4th 959, 984-985; People v. Guzman (1988) 45 C3d 915, 938; and O’Hare v. Superior Court (1987) 43 C3d 86, 94-95, contain language to the contrary, the decisions are overruled.  Finally, as against a state constitutional challenge, the Court held that PC §784.7 was deemed constitutionally valid and, thus, did not violate defendant's right to trial by a jury of the vicinage pursuant to California Constitution, Art. I, §16.

JURY INSTRUCTIONS

Erroneous Jury Instruction  In Ho v. Newland (2003) 322 F.3d 625, the Ninth Circuit granted the petitioner's habeas corpus petition on the grounds that the trial court's erroneous instruction to the jury that second degree murder based on implied malice was a general-intent crime amounted to prejudicial constitutional error.  The Court also held that defense counsel's argument to the jury to the contrary was insufficient to correct the error, since the trial judge emphatically instructed the jury to disregard any argument contradicting the court's jury instructions.  The Court held that a trial judge is required to explain the law correctly to the jury so that it may “apply the law to the facts,” US v. Gaudin, 515 U.S. 506, 514 (1995), and determine the defendant’s guilt as to every element of the crime with which he is charged.  (See also Guam v. Marquez, 963 F.2d 1311, 1314-15 (9th Cir. 1992) (holding “that all jury instructions must be read aloud to the jury in the presence of counsel and the defendant”); Morris v. US, 156 F.2d 525, 581 n.4 (9th Cir. 1946) (holding that “[t]he court must directly and not by reference to a document in the jury’s possession define the offense charged in clear and precise language”); Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure §483, at 693-94 (2d ed. 1982) (stating that jury instructions “must be given orally by the judge”). The court’s erroneous instruction that general intent is an element of murder in the second degree based on implied malice allowed the jury to convict Ho of second-degree murder based on a finding that he had the general intent to commit the crime.  Therefore, the court’s failure to instruct the jury properly violated Ho’s “historical and constitutionally guaranteed right . . . to demand that the jury decide guilt or innocence on every issue,” Gaudin, 515 U.S. at 513, and was constitutional error.

Okay, But Now Abandoned Jury Instruction  In People v. Engelman (2002) 28 C4th 436; 49 P.3d 209; 121 CR2d 862, the California Supreme Court held the jury instruction that informs jurors at the outset of jury deliberations - CALJIC Jury Instruction Number 17.41.1 (1998 new (6th edition, 1996) (that should any juror refuse to deliberate or express an intention to disregard the law or decide the case based on penalty, punishment, or any other improper basis, the other jurors were obligated to immediately advise the trial court) was not improper, but nevertheless, should no longer be given, as the instruction had the potential to needlessly induce jurors to expose the content of their deliberations.   Thus, it was not an appropriate instruction for use in future criminal trials.  Here, the defendant contended that this instruction infringed on his constitutional rights to a trial by jury and to a unanimous verdict.  The Court found no such violation, and affirmed.  There was no violation of defendant's rights because the jury trial right did not require absolute secrecy for jury deliberations in the face of juror misconduct allegations.  Furthermore, the jury instructions as a whole fully informed the jury of its duty to reach a unanimous verdict.

Proper Jury Instruction  In People v. Banuelos (2003) 106 CA4th 1332; 131 CR2d 639, the Court of Appeal held that in the context of the infliction of grave bodily injury (GBI) upon the victim in a group assault situation, and where it was not clear which defendant inflicted the injury (i.e., there was insufficient evidence as to who the actual perpetrator was), the trial court properly relied on the CALJIC 17.20 jury instruction (See People v. Corona (1989) 213 CA3d 589) which permits a jury to find that a defendant committed GBI in the event that all that is proven is that the defendant participated in the group assault.

Failure To Give Curative Jury Instruction  In U.S. v. Brown (2003) (4/25/03; 03 C.D.O.S. 3496; ___ F.3d ___), the Ninth Circuit reversed the defendant's conviction on 28 counts of wire fraud (18 USC §1343) and 25 counts of illegal monetary transactions (18 USC §1957(a)) for devising a scheme and artifice to defraud a certain party buying wood chips by two percent (2%), when the trial judge failed to give appropriate curative instructions regarding the prosecution’s inappropriate statements during closing argument - “And my question to you (the jury) is, if a man is willing to cheat a little bit over here, wouldn't he be willing to cheat just a little bit over here?”  The trial court did not rule on defense counsel’s objection to these remarks.  More importantly, the trial court failed “[to admonish] counsel to refrain from such remarks or [to give] appropriate curative instructions to the jury.”  (U.S. v. McKoy (1985) 771 F.2d 1207, 1213; see also Endicott, 803 F.2d at 513.)  Instead the trial court instructed the jury to “consider only the charges in this case in reaching a decision, the 28 charges in the indictment.”  The trial court did not instruct the jury to disregard the prosecutor’s statements insofar as they suggested that the defendant had a criminal propensity.  Because the trial judge failed to instruct the jury to disregard the prosecutor’s statements insofar as they suggested that the defendant had a criminal propensity, this failure affected the jury’s ability to judge the evidence fairly.

PRE-TRIAL DISCOVERY

Right To Discovery?  In U.S. v. Bass (2002) 536 U.S. ___, the U.S. Supreme Court summarily reversed the Sixth Circuit's order confirming the dismissal of a death penalty notice filed by the government in a case where the defendant earlier moved to dismiss the death penalty notice and, in the alternative, moved for discovery of information relating to the government’s capital charging practices.  When the district court granted the defendant's discovery motion, and when the government later refused to comply with this discovery order, the district court dismissed the government's death penalty notice.  The high Court held that its decision in U.S. v. Armstrong (1996) 517 U.S. 456, 465, required that a defendant who seeks discovery on a claim of selective prosecution must first show some evidence of both discriminatory effect and discriminatory intent.  Here, the high Court held that as to the issue of evidence of discriminatory effect, Armstrong says that the defendant must make a “credible showing” that “similarly situated individuals of a different race were not prosecuted.” Id., at 465, 470.  Because the defendant here showed that “[t]he United States charges blacks with a death-eligible offense more than twice as often as it charges whites” and that the United States enters into plea bar-gains more frequently with whites than it does with blacks, this "evidence" however was not relevant in the eyes of the justices, as the "raw statistics regarding overall charges say nothing about charges brought against similarly situated defendants.  And the statistics regarding plea bargains are even less relevant, since respondent was offered a plea bargain but declined it."  The high Court concluded, "under Armstrong, therefore, because respondent failed to submit relevant evidence that similarly situated persons were treated differently, he was not entitled to discovery."  Editor's Note:  This case is difficult to fathom, as the defendant seems to be damned if he does, and damned if he doesn't.  Clearly, one of the reasons for requesting discovery from the government is to demonstrate either discriminatory effect and/or discriminatory intent.  Without the requested discovery, the defendant here is left with little else other than "raw statistics."

In a civil suit for invasion of privacy brought by a crime victim against the defendant's attorneys, in Mansell v. Otto (2003) (4/29/03; 03 C.D.O.S. 3683; ___ CA4th ___), the Court of Appeals held that the litigation privilege of Civil Code §47 was technically not applicable in a case where defense counsel initially issued a subpoena duces tecum (SDT) for the victim's medical and psychiatric records, but later was compelled by the medical facility to obtain a formal court order for the same, and where these medical and psychiatric records were then duly delivered to the court and then released to defense counsel by the judge.  In that situation, the Court distinguished Susan S. v. Israels (1997) 55 CA4th 1290 (a case where defense counsel issued an SDT for the victim's mental health records and then received the medical records directly from the medical facilty where the victim received treatment, and later used them at trial to cross-examine the victim - an unauthorized reading and dissemination of a person's mental health records).  Here, because there was obedience to the prescribed judicial rules concerning issuing an SDT in a criminal case (or obtaining a separate court order), and where medical and psychiatric records, otherwise private and privileged, were duly sealed and delivered to the court, the judicial imprimatur on this process distinguishes this case from those wherein liability was derived.  As such, defense counsel here was not liable to the crime victim (plaintiff) as a matter of law.

In People v. Superior Court (Barrett) (2000) 80 CA4th 1305; 96 CR2d 264, the Court of Appeals held that the agency in question (here, the CDC) was part investigative agency and part third party.  With respect to CDC's role as an investigative agency, the defendant could compel the prosecution to turn over materials related to the criminal investigation.  However, the remaining documents not gathered in connection with its criminal investigation could not be obtained through the prosecution, rather, the defendant could request those material through third-party discovery methods, such as a subpoena duces tecum.

COURT TRIALS

The defendant and the prosecutor may agree to waive a jury trial and allow the court alone to decide the case.  The defendant must personally enter the jury trial waiver, and the prosecution must join in the waiver.  Later, a jury trial waiver can be withdrawn only with the court's approval.  Court trials can be identical to jury trials, except that no jury is selected, fewer instructions are chosen and, of course, the jury instructions are not read aloud.  Also, a judge may (but not always) take less time to deliberate than a jury.  However, court trials can also be planned to include only specified evidence, e.g., a preliminary hearing transcript and the defendant's testimony, or they can even be submitted just on the written police report.

When the prosecution and the defense agree on a plea bargain that includes a jury waiver, together with the submission of the case on specified evidence, a court trial is the equivalent of what is referred to as a slow plea (of guilty), and the court is required to advise the defendant of certain rights, and obtain a voluntary, intelligent and knowing waiver of them. Although it may be waived, a court trial typically (but not always) begins with opening statements, first by the prosecution, then by the defense.  The prosecution has the burden of proof and, thus, offers evidence to support the underlying charge. After the prosecution rests, defense counsel may move for a judgment of acquittal per PC §1118 without stating any reason therefore.  If the motion is denied, the defense may elect to put on a defense case or, alternatively, may elect to stand on the prosecutions evidence.  If the defense puts on evidence, the prosecution may then offer rebutting testimony/evidence.  The court, for good cause and in the interest of justice, may permit either party to offer evidence on its original case after rebuttal, but this is rare.  After introduction of all the evidence, the parties rest.  Both parties are then permitted to make a closing argument regarding the case, or the defense.

After considering any trial brief, memorandum of points and authorities, any instructions offered by the parties, or any post-trial briefing, the trial judge as trier of fact deliberates before returning a decision.  The decision is in substantially the same form as a verdict.  The court trial concludes with the trial judge announcing his or her findings on the issues of fact, and entry of the findings in the minutes. When enhancements are charged and a court trial held, the trial court must make a finding on the truth of those allegations.  Those finding are to be announced at the conclusion of the trial and any enhancement may be stricken because the judge neglected to make such finding(s).

No Right Of Prosecution To Appeal?  In People v. Dale (2003) 106 CA4th 194; 130 CR2d 530, a case where the defendant pled no contest to possessing cocaine and being under the influence of a controlled substance, but expressly denied the enhancement allegation that he suffered a "strike" prior (serious felony conviction) in Alameda County in 1991.  Thus, after his plea, the issue of the prior was tried before the court, which proceeded to find the allegation to be "not true."  Evidently, the trial court did not believe the victim's preliminary hearing testimony that defendant slashed at her with a bottle during an assault (PC §245(a)(1)) and, therefore, found the evidence insufficient to show personal use of a deadly or dangerous weapon.  The People appealed, contending that the judge "erred as a matter of law in reweighing the evidence and judging the credibility of the victim who was not before him" and in substituting his judgment for that of the magistrate at the preliminary hearing.  The Court of Appeals held that PC §1238 did not afford the People the right to appeal an adverse decision after trial by a court on the issue of truth of the defendant's prior "strike" conviction.  Editor's Note:  On April 30, 2003, the California Supreme Court granted review in the case, but held it pending a determination in a related case.  Hence, People v. Dale is currently not citable for any legal proposition.

Motion For New Trial In People v. Braxton* (2003) 106 CA4th 137; 130 CR2d 418, the First District Court of Appeals held that a defendant has a right to make an oral motion for a new trial, provided that the motion was made prior to the time the defendant is sentenced. Thus, a defendant must move for new trial before pronouncement of judgment, and must specify the ground(s) on which his motion is based. (PC §1182; Thurmond v. Superior Court (1957) 49 C2d 17, 19; People v. Taylor (1967) 250 CA2d 367, 372; People v. Grake (1964) 227 CA2d 289, 292.)  Although a motion for new trial based on juror misconduct is generally supported by writings, e.g., juror affidavits (see People v. Hedgecock (1990) 51 C3d 395, 415, 419; People v. Pierce (1979) 24 C3d 199, 208), the motion itself need not be written, and, historically, may be oral. (People v. Ah Sam (1871) 41 C 645, 651; People v. Simon (1989) 208 CA3d 841, 847; People v. Haldeen (1968) 267 CA2d 478, 481; People v. Grake, supra, 227 CA2d at p. 292.)  When a motion for new trial is properly before the court before pronouncement of judgment, the court must determine the motion. (PC §1182; Thurmond v. Superior Court, supra, 49 C2d at p. 19; People v. Taylor, supra, 250 CA2d at p. 372; People v. Grake, supra, 227 CA2d at p. 292.)  The court went on to state that PC §1202 expressly provides for a new trial when the sentencing court fails to rule on a defendant's motion for a new trial. *Editor's Note:  On 4/23/03, the California Supreme Court accepted Braxton for review. Hence, this case can no longer be cited as legal authority for any proposition.

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