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PAROLE DENIED FOR DRUG DEALER CONVICTED OF 1990 STABBING-MURDER OF PRO TENNIS ATHLETE OVER $20 DEBT

Friday, August 12th, 2011

SANTA ANA - The Board of Parole Hearings, California Department of Corrections and Rehabilitations (Board) denied the parole today of a drug dealer convicted of the stabbing-murder of a former college athlete-turned-tennis pro over a $20 drug debt. Ehriberto Arcelara, 47, is currently being held at Calipatria State Prison in Calipatria, CA. Arcelara was sentenced April 18, 1991, to 16 years to life in state prison for one felony count of murder and a sentencing enhancement for the use of a deadly weapon. This case was originally prosecuted by former Deputy District Attorney Richard King. Arcelara will be eligible for his next parole hearing in 2021.

Deputy District Attorney Renee Jones attended the hearing to oppose Arcelara’s parole. The Board denied Arcelara’s parole based on his lack of remorse and insight into his crime, failure to acknowledge his many prison rules violations, and his destructive and violent behavior while incarcerated.

Stabbing-Murder of Stephen Aniston
Between 1985 and 1990, Arcelara was arrested under 21 different aliases for property crimes and multiple narcotics-related offenses and narcotics sales.

Stephen Aniston received an athletic scholarship from University of California, Irvine, but started using cocaine and subsequently lost his scholarship.  Aniston began playing in the pro-circuit, going on to play at Wimbledon, and was ranked among the world’s top 200 tennis players by the United States Tennis Association.

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OCDA TO OPPOSE PAROLE OF MAN WHO PLANTED PIPE BOMB AND SEVERELY INJURING VICTIM IN 1995

Wednesday, June 15th, 2011

SANTA ANA – Orange County District Attorney (OCDA) Tony Rackauckas is opposing the parole of a man who severely injured another man after planting a pipe bomb in the victim’s car in 1995. Steven Yaklyvich, 47, is currently being held at Pleasant Valley State Prison in Coalinga, CA. Yaklyvich was sentenced March 21, 1997, to life in state prison and an additional eight years for sentencing enhancements. He is scheduled for a parole hearing Monday, June 13, 2011, at 1:00 p.m. at the prison before the Board of Parole Hearings, California Department of Corrections and Rehabilitations.

Senior Deputy District Attorney Jerry Schaffer will appear via video conference to defend public safety and advocate for justice.

On March 13, 1995, Yaklyvich, then-31-years old, received a visit from his girlfriend while in jail for possession of a syringe. During this visit, Yaklyvich became angry upon learning of his girlfriend’s relationship with another man, Ron Robertson. After Yaklyvich’s release from jail on March 17, 1995, he threatened Robertson over the phone, saying he would be “seeing” Robertson.

Yaklyvich planted a pipe bomb under Ron Robertson’s vehicle, which exploded On April 4, 1995, while the victim was driving. As a result, and caused the car’s brakes and steering failed and the car collided with another vehicle. The blast of the explosion blew a hole through the floorboard and severely injured Robertson, breaking his ankle and foot in five places and causing permanent walking impairment.

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Justice Deptartment settles with Countrywide successor for illegally foreclosing on servicemembers

Wednesday, June 1st, 2011

Settlement Includes a Minimum of $22 Million in Relief for Victims

WASHINGTON - The Justice Department today announced settlements with two lenders under the Servicemembers Civil Relief Act (SCRA) to resolve allegations that the lenders wrongfully foreclosed upon active duty servicemembers without first obtaining court orders, in violation of the SCRA. Combined, the settlements provide more than $22 million in monetary relief for the victims.

Under the first settlement, BAC Home Loans Servicing LP, formerly known as Countrywide Home Loans Servicing LP, a subsidiary of Bank of America Corporation, will pay $20 million to resolve a lawsuit alleging that Countrywide foreclosed on approximately 160 servicemembers between January 2006 and May 2009 without court orders. In addition to the $20 million, Countrywide agreed to pay any servicemember wrongfully foreclosed in the period from June 2009 through 2010. The complaint alleges that Countrywide did not consistently check the military status of borrowers on whom it foreclosed through at least May 31, 2009. The complaint was filed in the Central District of California, where Countrywide is headquartered.

Under the second settlement, Saxon Mortgage Services Inc., a subsidiary of Morgan Stanley, will pay $2.35 million to resolve a lawsuit alleging that Saxon foreclosed on approximately 17 servicemembers between January 2006 and June 2009 without court orders. In addition to the $2.35 million, Saxon agreed to pay any servicemember wrongfully foreclosed in the period from July 2009 through 2010. The complaint alleges that Saxon failed to consistently or accurately check the military status of borrowers on whom it foreclosed through at least June 30, 2009. The complaint was filed in the Northern District of Texas, where Saxon is headquartered.

“The men and women who serve our nation in the armed forces deserve, at the very least, to know that they will not have their homes taken from them wrongfully while they are bravely putting their lives on the line on behalf of their country,” said Thomas E. Perez, Assistant Attorney General for the Civil Rights Division of the Department of Justice. “The Civil Rights Division is committed to aggressively enforcing those laws that protect the rights of servicemembers. All lenders have an obligation to do their part to work with servicemembers while these brave men and women focus on keeping us safe. The Justice Department also thanks the Department of Defense for its critical assistance in identifying servicemembers whose rights were violated”

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Ninth Circuit Opinions recently reported

Wednesday, June 1st, 2011

1. US v. Diaz-Ramirez, No. 10-10230 (5-23-11)(O’Scannlain with Trott and Campbell, D.J.). In a case arising from “Streamline” prosecutions in the District of Arizona (Tucson Division), and involving the Arizona FPD, the 9th found no Boykin error in the mass advisement of rights. The case arose from the practice of the magistrate court to advise groups of up to 70 defendants facing petty misdemeanor charges of their rights, charges, and consequences. This was followed later by individual questioning in smaller groups. Defendants allege a constitutional violation, in that this advisement violated due process because the record is silent as to whether they voluntarily and understandingly pleaded guilty as required by Boykin v. Alabama, 395 US 238 (1969). The case revolves around standard of review and burden production. The defendants contend that the record does not indicate their individual acknowledgement. The trial court and the 9th disagree. The 9th points to the efforts of the magistrate judge to ascertain whether everyone understood and the court asked that if anyone had questions, or wanted to go to trial, to so indicate. Counsel were present. There was therefore evidence of assent, and since there was no objection, the review was for plain error. Under this review, there was no constitutional violation. This issue does not involve Rule 11.

2. Williams v. Cavazos, No. 07-56127 (5-23-11)(Reinhardt with Kozinski and Whyte, D.J.). Any opinion that starts with quoting the film “Twelve Angry Men” is a fair bet to conclude with relief. The odds are even better if the issue in the appealed case concerns a juror who wants to discuss what he considers a serious case (first degree murder) in the face of the other jurors’ impatience and frustration. Add a state trial judge who questions the jurors as to their votes, and the reluctant juror, and one should not be surprised that the 9th finds a sixth amendment violation. The petitioner here was charged with felony murder in a robbery that went bad. The case revolved around what petitioner’s expectation was with the robbery. The jury started deliberation, and soon sent a note that one juror was being difficult. It seems that the juror said this was a serious case, disagreed with the felony murder rule (but would follow the law), and held the state to a very very high standard. The trial court questioned the jurors, and then dismissed the hold out for being biased and substituted an alternate, who voted to convict. The 9th first found that the state courts had not rule don the sixth amendment issue, and that there were no bars or hurdles to consideration of the claim. Second, the 9th found a sixth amendment violation because (a) the court dismissed the juror not because he was biased (he wasn’t), but because he was voting to acquit; and (b) there was no cause as the juror was deliberating, following the law, and was not improper. The petition was granted.

3. US v. Lettiere, No. 10-30101 (Tashima with Kleinfeld and Silverman). Things are different in Montana. The victim of the robbery here told the deputy sheriff on the scene that the defendant had robbed him of 5 lbs of marijuana and $12,000. The defendant was charged with robbery affecting commerce and use of a firearm in a crime of violence. The issue on appeal was whether the defendant had brandished the weapon. The defendant argued that he didn’t brandished; some of the evidence was that he did. He wanted an instruction defining it as flourishing menacingly. The court didn’t think brandishing was an element of the offense, but in light of the gov’t saying it was (mistakenly), agreed. The definition the court gave however was the language in the statute, that the weapon had to be displayed in whole or part to intimidate. 18 USC 924(c). Of course, the 9th concluded, the statutory language trumped when clear. And clear it was. There is also a distinction between use and brandish. In a concurrence, Tashima, who also wrote the opinion, explained that “brandish” was not an element of the offense; “use” was. “Brandish” is a sentencing factor to be found by the judge. However, because the gov’t said it was an element, and shouldered the burden, charged it, and argued it, the court needs to treat it as an element. Here, the evidence supported the conviction.

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Ninth Circuit Opinions week of 05-28-11

Saturday, May 28th, 2011

1. US v. Ellis, No. 09-50652 (5-26-11)(Ikuta with Rymer and Callahan). The 9th has decided to review departures for reasonableness in the first instance, and then, if reasonable, to treat an erroneous Guideline departure as harmless under post-Booker discretion. US v. Mohamed, 459 F.3d 979 (9th Cir. 2006).The same approach is taken here for departures for under-representation of criminal history pursuant to 4A1.3(a)(1).

In this case, the defendant, having pled guilty to seven bank robberies, received a departure because some prior criminal history was stale. The 9th stated that it did not have to examine correct application of a departure because it was looking at reasonableness, and the departure was reasonable under 3553.

The court explained its basis and it made sense. The 9th also held that no violation of the plea agreement took place. In terms of sentencing jurisprudence, this case shows that, on appeal, departures are reviewed under a reasonableness variance standard.

2. Haney v. Adams, No. 09-16148 (5-26-11)(N. Smith with Goodwin and Collins). A petitioner is precluded from raising a Batson claim if he failed to object to the state’s use of peremptory challenges at trial.

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Serious constitutional violations in California’s prison system

Monday, May 23rd, 2011

SUPREME COURT OF THE UNITED STATES

No. 09–1233

EDMUND G. BROWN, JR., GOVERNOR OF CAL- IFORNIA, ET AL., APPELLANTS v. MARCIANO PLATA ET AL.

ON APPEAL FROM THE UNITED STATES DISTRICT COURTS FOR THE EASTERN DISTRICT AND THE NORTHERN DISTRICT OF CALIFORNIA

[May 23, 2011]

JUSTICE KENNEDY delivered the opinion of the Court.

This case arises from serious constitutional violations in California’s prison system. The violations have persisted for years. They remain uncorrected. The appeal comes to this Court from a three-judge District Court order direct­ing California to remedy two ongoing violations of the Cruel and Unusual Punishments Clause, a guaranteebinding on the States by the Due Process Clause of theFourteenth Amendment. The violations are the subject oftwo class actions in two Federal District Courts. The first involves the class of prisoners with serious mental disor­ders. That case is Coleman v. Brown. The second involves prisoners with serious medical conditions. That case is Plata v. Brown. The order of the three-judge District Court is applicable to both cases.

After years of litigation, it became apparent that a remedy for the constitutional violations would not be ef­fective absent a reduction in the prison system popula­tion. The authority to order release of prisoners as aremedy to cure a systemic violation of the Eighth Amend­ment is a power reserved to a three-judge district court,not a single-judge district court. 18 U. S. C. §3626(a). In accordance with that rule, the Coleman and Plata District Judges independently requested that a three-judge court be convened. The Chief Judge of the Court of Appeals for the Ninth Circuit convened a three-judge court composed of the Coleman and Plata District Judges and a third,Ninth Circuit Judge. Because the two cases are interre­lated, their limited consolidation for this purpose has a certain utility in avoiding conflicting decrees and aidingjudicial consideration and enforcement. The State in this Court has not objected to consolidation, although the Statedoes argue that the three-judge court was prematurely convened. The State also objects to the substance of the three-judge court order, which requires the State to reduceovercrowding in its prisons.

The appeal presents the question whether the remedial order issued by the three-judge court is consistent withrequirements and procedures set forth in a congressionalstatute, the Prison Litigation Reform Act of 1995 (PLRA).18 U. S. C. §3626; see Appendix A, infra. The order leaves the choice of means to reduce overcrowding to the discre­tion of state officials. But absent compliance through newconstruction, out-of-state transfers, or other means—or modification of the order upon a further showing by the State—the State will be required to release some numberof prisoners before their full sentences have been served. High recidivism rates must serve as a warning that mis­taken or premature release of even one prisoner can cause injury and harm. The release of prisoners in large num­bers—assuming the State finds no other way to comply with the order—is a matter of undoubted, grave concern.

At the time of trial, California’s correctional facilities held some 156,000 persons. This is nearly double thenumber that California’s prisons were designed to hold,and California has been ordered to reduce its prison popu­lation to 137.5% of design capacity. By the three-judge court’s own estimate, the required population reduction could be as high as 46,000 persons. Although the Statehas reduced the population by at least 9,000 persons dur­ing the pendency of this appeal, this means a further reduction of 37,000 persons could be required. As will be noted, the reduction need not be accomplished in an indis­criminate manner or in these substantial numbers if sat­isfactory, alternate remedies or means for complianceare devised. The State may employ measures, includinggood-time credits and diversion of low-risk offenders and technical parole violators to community-based programs,that will mitigate the order’s impact. The population reduction potentially required is nevertheless of unprece­dented sweep and extent.

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Ninth Circuit Opinion 05-19-11

Friday, May 20th, 2011

Leavitt v. Arave, No. 08-99002 (5-17-11)(Kozinski with Rymer; dissent by Reinhardt). The 9th reverses the granting of a write for sentencing IAC. This was a gruesome murder/mutilation. Petitioner’s seemingly unexplainable acts, it is now argued, resulted from an organic brain disorder. Petitioner’s sentencing counsel, on remand, had decided not to ask the court for a MRI, despite a recommendation by the defense expert, a neurologist expert.

Counsel’s decision, explained the 9th, was defensible, as the trial court had denied an earlier request, and had indicated that mental testimony was secondary to other considerations at the resentencing. Characterizing the organic brain disorder as weak, the 9th also concludes, given the gruesome nature of the offense, that even if there was IAC, it was harmless. Dissenting, Reinhardt focuses on the fact that the organic brain disorder was the only way to explain the inexplicable: why a law-abiding citizen, husband and father would act in such a terrible anner. The only explanation available must have been that there was something wrong in petitioner’s brain. Yet, despite being pointed in that direction, counsel at the resentencing failed to make the motion, assuming that it would be denied, and went off on another strategy.

This decision, concludes the dissent, is the essence of IAC.

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Ninth Circuit Opinion 05-05-11

Thursday, May 5th, 2011

Doody v. Ryan, No. 06-17161 (5-4-11)(en banc)(Rawlisnson with Schroeder, B. Fletcher, Pregerson, Reinhardt, and Thomas; concurrence by Kozinski; dissent by Tallman with Rymer and Kleinfeld). On remand from the Supremes in light of its Miranda decision in Powell, the 9th, sitting en banc, again holds that the confession to killing nine individuals, of whom six were Buddhist monks, violated petitioner’s Miranda rights and was involuntary. The 9th carefully went through the facts, including the downplaying, deviations, and express misinformation in giving the Miranda warnings to a juvenile, with no criminal priors, and who was foreign. Powell, considering the wording of the Miranda warnings, is not applicable when the police undermine and undercut the warnings in 12 transcript pages of downplaying the simple warnings. As for voluntariness, the 9th also considered the length of the questioning, stretching over 13 hours, by a tag team of officers, who, in a related matter, used the same techniques to squeeze false confessions out of four men later released.

The petitioner was comatose for long periods, and subjected to relentless questioning. Yes, the Arizona state courts had found the warnings valid and the confession voluntary, but the state court was unreasonable in its factual determinations and unreasonable in its application of the law. As the 9th colorfully put it: “[I]f we succumb to the temptation to abdicate our responsibility on habeas review,we might as well get ourselves a big, fat rubber stamp, pucker up, and kiss the Great Writ good-bye.” The majority, in supporting its holding, calls out the dissembling of the dissent’s reading of cases. Concurring, Kozinski discusses AEDPA and its deference, and using that standard, would defer to the state court’s holding that the statement was voluntary, but would find that a Miranda violation did occur and that the state court’s were unreasonable. In dissent,.Tallman joined by Rymer and Kleinfeld, argue that AEDPA deference supports the state court’s rulings. They focus on the reasons why it might be reasonable, and downplay the facts the majority found so convincing.

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Phillip Spector appeals the judgment entered following his conviction by jury trial for second degree murder

Thursday, May 5th, 2011

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent,

v.

PHILLIP SPECTOR,

Defendant and Appellant.

B216425

(Los Angeles County

Super. Ct. No. BA255233)

APPEAL from a judgment of the Superior Court of Los Angeles County, Larry P. Fidler, Judge. Affirmed.

Riordan & Horgan, Dennis P. Riordan, Donald M. Horgan; and Charles Sevilla for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Lawrence M. Daniels, Deputy Attorney General, for Plaintiff and Respondent.

_________________________

Defendant and appellant, Phillip Spector, appeals the judgment entered following his conviction, by jury trial, for second degree murder with firearm use enhancements (Pen. Code §§ 187, 12022.5, 12022.53, subdivision (b)). He was sentenced to state prison for a term of 19 years to life.

The judgment is affirmed.

BACKGROUND

Defendant Spector was originally tried in 2007. That trial ended in a hung jury. Viewed in accordance with the usual rule of appellate review (People v. Ochoa (1993) 6 Cal.4th 1199, 1206), the evidence presented at Spector‟s 2008-2009 retrial established the following.

1. Prosecution evidence.

a. The shooting.

(1) Spector meets Clarkson at the House of Blues.

Adriano De Souza was working as a valet parking attendant at the Grill in the Alley (the Grill), a Beverly Hills restaurant. There he met Spector‟s chauffeur, who asked if De Souza wanted to work as Spector‟s backup driver. De Souza agreed because he could make between $30 and $40 an hour driving for Spector. By February 2003, De Souza had driven Spector between 12 and 15 times over the course of three or four months.

These backup driving jobs were arranged by Michelle Blaine, Spector‟s secretary, who would call De Souza a few hours before he was needed. De Souza would arrange for someone to cover his shift at the Grill and then drive his own car to Spector‟s house in Alhambra. After going through the main entrance gate, De Souza would drive to the back of the house, park, prepare Spector‟s car and wait for him to come out. Spector had two cars, a Rolls Royce and a brand new Mercedes. De Souza testified Spector would tell him where to drive and that he always understood Spector‟s directions. He and Spector communicated easily, although if Spector had been drinking he was sometimes hard to understand.

De Souza had been born in Brazil and he grew up there. He began studying English in school when he was 11 or 12 years old. In college he earned a B.A. degree in computer science. The instructional materials for his computer courses were in English. He had served for eight or nine years in the Brazilian military.

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Ninth Circuit Opinions 04-29-11

Friday, April 29th, 2011

1.  US v. Nosal, No. 10-10038 (4-28-11)(Trott with O’Scannlain; dissent by Campbell, Senior DJ, Utah).  Defendants got information from their employer’s computer allegedly for the purpose of defrauding the employer and setting up a competing business.  This violates the Computer Fraud and Abuse Act, 18 USC 1030.  The statute states that someone who goes beyond set purposes of computer access is considered to have exceeded authorized access and thus violated the statute.  The 9th, in  LVRC Holdings LLC  v.  Bekka, 581 F.3d 1127 (9th Cir. 2009), seemed to interpret the statute as making irrelevant policy usage if the defendant had any access at all. If the defendant had any access, overstepping by itself could not be criminal.  The district court in adopting this reading dismissed counts.  The gov’t appealed, and argues, successfully, that the overstepping is relevant, it violates the statute’s clear language, and that it is a factor for consideration of specific intent.  The 9th joins other circuits in using the employer’s access policies and computer use policies to show possible intent.  If such policies could not be used, what use would they be?  The 9th states that if one steps over the use line, one could arguably have violated the statute. Dissenting, Judge Campbell thinks the statute is void for vagueness, and that statutory construction should limit it to those who are barred from any usage, rather than possible policy violation.  The statute was written in the new age of computer usage, and the majority’s interpretation is unrealistic as to how computer usage has developed at work.

2.  US v. Whitlock, No. 10-30124 (4-28-11)(Fisher with Graber and M. Smith).  In a SR case, the 9th holds that post-revocation sentencing recommendations made by the probation office must be disclosed unless the local rules reads otherwise or the district court so orders.  However, it is not a due process or equal protection violation if the recommendation is
not disclosed by local rule or the court orders it not disclosed so long as the factual determinations and underpinnings are disclosed.  Essentially, it would be nice if the recommendations were disclosed, but it is not a constitutional violation if they are not provided there is a local rule or the court orders, and the facts in the report are let out.  Here they were, and so the SR revocation sentence is affirmed.

3.Kemp v. Ryan, No. 08-99030 (Callahan with Rymer and Ikuta).  Thew 9th affirms denial of capital habeas.  The petitioner argued that his statements were a result of constitutional violations; that there was insufficient evidence to show the requisite mental state necessary for imposition of the death penalty, and that his constitutional rights were
violated  by the admission of other bad act evidence, by late disclosure by the state, and by the failure to voir dire on the issue.  Under AEDPA’s deferential standards, the 9th holds that the Arizona Supreme Court’s opinion affirming his conviction and sentence was not an unreasonable application of federal law nor an unreasonable determination of the facts.

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