Archive for the ‘California Appeals Attorney’ Category

Can a case get dismissed if prosecuted beyond a time frame set by the law?

Sunday, November 1st, 2009

Donald Smith (Smith) contends that his statutory right to a speedy trial has been violated and seeks writ relief from the denial of his motion to dismiss.  We agree and will grant the requested relief.

Smith v. Superior Court 10/13/09 Case No. A124963 __ Cal.App.4th___

Defendant’s case gets continued several times over his objection and
without good cause. Court of Appeal dismisses case.

Filed 10/13/09
CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

DONALD SMITH,
Petitioner,
v.
THE SUPERIOR COURT OF THE CITY AND COUNTY OF SAN FRANCISCO,
Respondent;
THE PEOPLE,
Real Party in Interest.

A124763

(San Francisco City and County
Super. Ct. No. 207788)

Donald Smith (Smith) contends that his statutory right to a speedy trial has been violated and seeks writ relief from the denial of his motion to dismiss.  We agree and will grant the requested relief.
I.  FACTUAL AND PROCEDURAL BACKGROUND
On February 10, 2009,  an information was filed, jointly charging Smith and Christopher Sims (Sims) with one felony count of first degree residential burglary (Penal Code, § 459).   Smith was arraigned on February 11, and his statutory right to trial within 60 days of that date (§ 1382) was not waived.  April 13 was calculated as the last day for trial.  The court was informed on April 10 that counsel for codefendant Sims was ill and unavailable for trial.  As to Smith, the court indicated its intent to sever or dismiss because the last day for trial was the following Monday, April 13.  However, the People argued that good cause existed to continue the case for both defendants and not affect a severance. (more…)

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Can an insane defendant choose the plea he wants to enter?

Wednesday, October 28th, 2009

Defendant wants to enter a plea of not guilty by reason of insanity. Court holds that a defendant can choose to enter whatever plea he wants, even a plea of not guilty by reason of insanity.

Defendant’s conviction for burglary, attempted robbery, and related crimes is affirmed as, although the trial court erred in refusing to allow defendant to exercise his personal statutory right to enter a plea of not guilty by reason of insanity (NGI) and in failing to remove defense counsel who refused to allow defendant to enter his NGI plea, both of the errors are harmless in light of abundant, uncontradicted evidence in the record demonstrating there was no factual basis for a finding of not guilty by reason of insanity where defendant claimed he was hallucinating from crystal methamphetamine use while playing the video game Grand Theft Auto for 10 hours.

People v. Henning 10/14/2009 Case No. C060371 __ Cal.App.4th__

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Placer)
—-

THE PEOPLE,
Plaintiff and Respondent,
v.
JAISEN LEE HENNING,
Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Placer County, Charles D. Wachob, Judge. Affirmed.
Law Offices of John F. Schuck and John F. Schuck, under
appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Michael P. Farrell, Senior Assistant Attorney General, David A. Rhodes and Ivan P. Marrs, Deputy Attorneys General, for Plaintiff and Respondent.
After a marathon session of playing the Grand Theft Auto video game, and while hallucinating under the influence of

illicit drugs, defendant Jaisen Lee Henning donned a black ski mask and wielded a sawed-off shotgun in an attempt to rob a randomly chosen business. Fleeing from the scene, Henning led police officers on a high-speed car chase before being apprehended.

A jury convicted defendant of burglary (Pen. Code, § 459),1 attempted robbery (§§ 211, 664), assault with a firearm (§ 245, subd. (a) (2)), evading a police officer (Veh. Code, § 2800.2, subd. (a)), and possession of a sawed-off shotgun (§ 12020, subd. (a) (1)). On appeal, defendant argues that (1) he should have been allowed to plead not guilty by reason of insanity (NGI) because he committed his crimes while believing he was merely following the goals of the video game he had been playing, (2) his request for a second substitution of appointed counsel should have been granted pursuant to People v. Marsden
(1970) 2 Cal.3d 118 (Marsden), and (3) CALCRIM No. 220 failed to instruct the jury that each element of the charged offenses required proof beyond a reasonable doubt. (more…)

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Has Obama made the proper choice by nominating Sonia Sotomayor for his United States Supreme Court nominee?

Tuesday, May 26th, 2009

Sonia Sotomayor’s parents immigrated to New York from Puerto Rico. She has overcome personal obstacles.  She has suffered from diabetes since age 8 and lost her father at age 9. She is divorced with no children.

She graduated Princeton University and Yale Law School.  She served as a prosecutor and an attorney in private practice.  Sotomayor became a federal judge for the Southern District of New York in 1992 and an appeals judge in 1998 for the 2nd U.S. Circuit Court of Appeals, which covers New York, Vermont and Connecticut.

At her Senate confirmation hearing more than a decade ago, she said, “I don’t believe we should bend the Constitution under any circumstance. It says what it says. We should do honor to it.”

Sotomayor has ruled on two high profile cases. In 1995, she issued the preliminary injunction against Major League Baseball which ended the 1994 Baseball Strike. Sotomayor made a ruling allowing the Wall Street Journal to publish Vince Foster’s suicide note. In 1997, she was nominated by Bill Clinton to the U.S. Court of Appeals for the Second Circuit. After more than a year, she was confirmed and joined the court in 1998. Sotomayor was an Adjunct Professor at New York University School of Law from 1998 to 2007 and has been a lecturer-in-law at Columbia Law School since 1999.

Prior to her selection by Obama, Sotomayor had been considered by both Democrat and Republican presidents as a Supreme Court candidate. In 2005, Senate Democrats suggested Sotomayor as a nominee to George W. Bush, who eventually selected Samuel A. Alito, Jr. Prior to Souter’s retirement announcement, there was speculation that Sotomayor was a potential nominee. After Souter’s retirement announcement was leaked to the press, Sotomayor received attention as a possible nominee, and in May 2009 reports had Sotomayor on a shortlist of possible nominees. On May 26, 2009, Obama nominated Sotomayor to the court. If confirmed, she would be the court’s first Latina justice (and the second Ibero-American justice, after Benjamin N. Cardozo).

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Should the police be able to lie to get a confession?

Friday, May 15th, 2009

In the case of People v. Mays issued on May 8, 2009 [Case No. C057099], the police questioned Mr. Mays about his involvement in a homicide. The defendant denied guilt and asked for a lie detector test. The police agreed to give him the test and then set up a fake polygraph and generated fake results showing the defendant lied. The defendant then made several incriminating statements.

The California Court of Appeals, Third Appellate District in Sacramento, upholds the conviction and finds that the police can lie, unless it’s coercive or is the kind of lie that would produce a false confession. The California Court of Appeals finds the fake polygraph would not have produced a false confession and that the defendant’s statements were voluntary and not coerced.

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