CJE Wire: Case Law Updates

Citizens for Judicial Excellence publishes CJE Wire: Case Law Updates each month to help keep its members informed about recent court decisions that may impact their law practices. CJE Wire is prepared by CJE member Dena Alo-Colbeck. The Law Offices of Dena Alo-Colbeck focuses on research, brief writing, and trial preparation for criminal defense litigators. To learn more how she may be of assistance in trial preparation, pre-trial motions, or application of any of the following new case law, please contact her at (253) 318-1758 or alocolbecklaw@gmail.com.

CJE Wire: Case Law Updates — 2017 November 10

 


 Washington State Courts


Division I Court of Appeals

State v. Clark:  The Court published a July 31, 2017 decision upholding Michael Clark’s conviction for unlawful possession of a firearm.  Mr. Clark had argued that the domestic violence protection order to which he was subject at the time of his arrest did not explicitly prohibit physical force, as required pursuant to RCW 9.41.040(2)(a)(ii)(C)(II) to make possession of a firearm illegal.  The Court reasoned that the term “explicitly” was not defined in the statute but, given its ordinary meaning, did not require a protective order to contain the exact words of RCW 9.41.040(2)(a)(ii)(C)(II) to satisfy the requirement of explicitly prohibiting physical force.  Rather, the Court found that an order is sufficient if it “clearly prohibits the person subject to the order from using, attempting to use, or threatening to use physical force against the protected person.”  The order in this case restrained Mr. Clark from “causing physical harm, bodily injury, assault, including sexual assault, and from molesting, harassing, threatening, or stalking” The Court concluded that a rational trier of fact could conclude that the prohibition against causing physical harm or bodily injury or threatening made it clear that Mr. Clark was prohibited from using or threatening to use physical force against the protected party, thus making his possession of the subject firearm illegal. https://www.lexisnexis.com/clients/wareports/; http://www.courts.wa.gov/opinions/pdf/744411.PDF

 


Division II Court of Appeals

State v. Hotchkiss:  The Court affirmed Mr. Hotchkiss’ conviction for possession of a controlled substance with intent to deliver.  In a search of Mr. Hotchkiss’ residence, 8.1 grams of methamphetamine and $2,150.00 in cash was found, and during questioning Mr. Hotchkiss admitted that he was selling methamphetamine to several customers.  On appeal, Mr. Hotchkiss challenged the admission of this confession into evidence, arguing that there was insufficient corroborating evidence independent of his incriminating statement that he intended to deliver methamphetamine.  The Court found that one factor in addition to mere possession of an illegal substance suggestive of intent is sufficient to satisfy corpus delicti for the charge of possession with intent to deliver.  The Court determined that the evidence need not be sufficient to convict in order to allow the statement to come in.

Concurring, Judge Worswick pointed to the third consolidated case in Brockob, the first two of which were relied upon by the majority.  Judge Worswick noted that this case, Cocabe, “clearly stands for the proposition that evidence may be sufficient to convict beyond a reasonable doubt but may still be insufficient for purposes of corpus delicti.”  The concurrence would have found that the State had not met the standard under the corpus delicti rule to enter Mr. Hotchkiss’ statement into evidence, but that there was sufficient evidence for the conviction nonetheless. http://www.courts.wa.gov/opinions/pdf/D2%2048963-5-II%20Published%20Opinion.pdf

 


 Federal Law


United States Supreme Court

Dunn v. Madison:  In a per curiam decision, the Court upheld the execution of Vernon Madison for the shooting death of a police officer some thirty years prior.  The Court found that, despite the fact that a series of strokes had left Mr. Madison incapable of remembering the crime, psychologists for both the State and the defense agreed that Mr. Madison understands that he is in prison for murder and will be put to death due to that conviction.  However, the defense expert argued that Mr. Madison does not understand the act for which he is being punished because he cannot recall “the sequence of events from the offense to his arrest to the trial or any of those details” and believes that he “never went around killing folks.”  The Court found that the State Court’s decision upholding the death penalty in this case was not unreasonable based on the evidence before it, as Mr. Madison understands the crime for which he will be put to death, and there is no case clearly establishing that a prisoner is incompetent to be executed because of a failure to remember his commission of the crime, “as distinct from a failure to rationally comprehend the concepts of crime and punishment as applied in this case.”

Concurring, Justice Ginsburg, joined by Justices Breyer and Sotomayor argued that the issue of whether a State may administer the death penalty to a person whose disability leaves him without memory of his commission of a capital offense “is a substantial question not yet addressed by the Court.” But acknowledged that restraints imposed by AEDPA preclude consideration of the question. 

Also concurring, Justice Breyer wrote separately to emphasize what he termed one of the “basic problems with the administration of the death penalty.”  Justice Breyer pointed to the “unconscionably long periods of time that prisoners often spend on death row awaiting execution,” and surmised that the Court will be increasingly faced with a death row population that is unable to remember or understand the acts for which they are incarcerated and sentenced to death due to diseases of old age.  The justice noted that this significantly undermines the stated purpose of deterrence inherent in the death penalty, and concluded that rather than develop a line of cases focusing on special circumstances of aging prisoners, “I believe it would be wiser to reconsider the root cause of the problem—the constitutionality of the death penalty itself.” https://www.supremecourt.gov/opinions/17pdf/17-193_6j37.pdf


Kernan v. Cuero:  In a per curiam opinion, the Court held that the Ninth Circuit erred in holding that the state court below had made a mistake of federal law when it sentenced Mr. Cuero to a sentence of 25 years to life rather than 14 years agreed to in the plea agreement, after the government was allowed to amend the complaint to accurately reflect Mr. Cuero’s prior convictions.  The Court found that there is no federal law mandating that a defendant is entitled to specific performance of a plea agreement, giving the defendant the sentence he would have had absent the amendment to the complaint.  https://www.supremecourt.gov/opinions/17pdf/16-1468_1a72.pdf

 

CJE Wire: Case Law Updates — 2017 November 3

 


 Washington State Courts


Washington State Supreme Court

State v. Cruz:  In a unanimous opinion authored by Justice Gordon McCloud, the Court dismissed the State’s appeal of the trial court’s order suppressing a search of Eric Cruz’ car incident to his arrest for illegally “snagging” a salmon in the Similkameen River.  The officer searched the truck after Mr. Cruz, in response to questioning, admitted there were guns in the vehicle, but never obtained a search warrant.  Mr. Cruz, who has a prior felony, was subsequently charged with three counts of second degree unlawful possession of a firearm.  The defense moved to suppress evidence gathered in the search under Gant and its progeny, and the trial court granted the motion, noting in its handwritten findings, that “the practical effect of this order is to terminate the case.”  The State then moved to dismiss without prejudice.  The Court instead dismissed with prejudice.  The State appealed the suppression order, but not the order of dismissal.  The Court quoted a prior ruling in State v. Fortun, 94 Wn.2d 754, 755, 626 P.2d 504 (1980) (per curiam) explaining that even if the suppression order was reversed, “fundamental common sense compels us to conclude there remains no existing charge to which a possible reversal of a pretrial order could apply” because “the dismissal order would remain unchanged and the case below would still be at an end.”  The State did file a motion to amend the notice of appeal to add in the dismissal order, which was granted.  However, the Court found that the circumstances remained unchanged, given that the State had still failed to brief and argue the propriety of the order of dismissal, and that the State was the party that affirmatively requested, or invited, the trial court to enter the dismissal order.  The Court concluded that “[c]haracterizing the “notice of appeal [as being] from the order of suppression and dismissal,” as the amended notice of appeal now does, fails to solve these invited error, failure to brief, and failure to assign error problems.  http://www.courts.wa.gov/opinions/pdf/937320.pdf

 


Division I Court of Appeals

State v. LaPointe:  The court reversed the trial court’s denial of Clifford LaPointe’s Knapstad motion and dismissed the charge of felony vehicle prowling based on it being a third or subsequent conviction for what would otherwise be misdemeanor vehicle prowling.  The Court pointed out that the Washington State Legislature’s 2013 amendments to RCW 9A.52.100 that elevated the crime of gross misdemeanor vehicle prowling in the second degree to a class C felony “upon a third or subsequent conviction” take effect if “a person has been previously convicted at least two separate occasions of the crime of vehicle prowling in the second degree.”  However, the Court noted that multiple counts charged in the same information or based on the same incident date do not count as separate offenses.  Here, Mr. LaPointe pled guilty to three separate charges of misdemeanor vehicle prowling resulting from two separate complaints on the same day and in the same proceeding in 2013.  The Court concluded that the language of the statute is ambiguous, and found that the 2013 convictions that occurred on the same day and in the same proceeding, and did not elevate the crime to a felony.  The Court pointed out that it had decided much the same question with regard to the persistent offender accountability act in State v. Bluford, 195 Wn. App. 570, 379 P.3d 163 (2016), reversed on other grounds, 188 Wn.2d 298, 393 P.3d 1219 (2017), finding that a guilty plea entered the same day to two different counts of armed robbery were not convictions on two separate occasions, so as to trigger the application of the act.  Further, the Court found that neither the plain language of the statute nor the legislative history was clear as to the meaning of “two separate occasions,” and so the rule of lenity should be applied and the statute interpreted in favor of the defendant.  http://www.courts.wa.gov/opinions/pdf/752189.pdf


State v. Wilson:  The Court reversed and remanded for a new trial Leslie Wilson’s convictions for rape of a child in the first degree and attempted rape of a child in the first degree. The Court found that there was sufficient evidence to support the convictions, but found that the jury was not properly instructed on the elements of attempt – specifically, there was no instruction that connected the definition of “substantial step” to the offense of attempted rape of a child.  Further, the Court found that admission of a prior remark by Mr. Wilson to the victim’s older cousin was not markedly similar to the alleged abuse that occurred in this case, and was thus not admissible under the common scheme or plan exception to ER 404(b).  http://www.courts.wa.gov/opinions/pdf/749447.PDF

 


Division II Court of Appeals

State v. Yelovich:  In this partially published opinion, the Court upheld Steven Yelovich’s conviction for violation of a felony no-contact order.  The Court affirmed the trial court’s denial of a proposed defense of property instruction that Mr. Yelovich wanted to give in his defense.  According to Mr. Yelovich, his former girlfriend and the subject of the no-contact order had taken his phone and other items out of an open window of his car while he was packing boxes in a garage.  Mr. Yelovich saw her and gave chase, eventually assaulting her in an attempt to recover his phone.  The Court found that a defense of property instruction is appropriate only when a party is about to be injured, or in preventing or attempting to prevent “malicious interference with … personal property lawfully in his or her possession.”  Here, the Court found that the theft was already complete.  The interference with property could no longer be prevented, and the defendant could further no longer prevent an injury, as the injury had occurred.  Therefore, a defense of property instruction was inappropriate.   Specifically, the Court held that “an owner of property cannot use force to defend that property when (1) the interference with the property occurs when the defendant was not present, (2) the interference has been completed and the property is no longer in the owner’s possession, and (3) the property has been removed from an area within the owner’s control.” http://www.courts.wa.gov/opinions/pdf/D2%2048949-0-II%20Published%20Opinion.pdf


State v. Allen:  The Court affirmed the trial court’s dismissal of the State’s allegations of aggravating circumstances under chapter 10.95 RCW on double jeopardy grounds.  The State had charged Darcus Allen with four counts of premeditated murder with two aggravating circumstances, and filed a notice seeking the death penalty.  The jury convicted Mr. Allen, but found unanimously that the State had not proven the aggravating circumstances beyond a reasonable doubt.  The state Supreme Court reversed Mr. Allen’s convictions, and the state re-filed, this time not seeking the death penalty but still alleging the same aggravating circumstances previously filed.  The trial court dismissed the aggravators on Mr. Allen’s motion, citing double jeopardy.  The Court reasoned that the jury’s unanimous finding on the aggravating circumstances was an acquittal and, further, that the aggravating circumstances were the functional equivalent of elements of the charged crime.  The Court pointed to Apprendi v. New Jersey, 530 U.S. 466, 489, 133 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), for the proposition that “factors which raise the penalty for a crime, other than a fact of conviction, are the functional equivalent of elements.  In other words, they are akin to elements, must be submitted to a jury, and must be proven beyond a reasonable doubt.”  http://www.courts.wa.gov/opinions/pdf/D2%2048384-0-II%20Order%20Publishing.pdf


State v. Cofield and Jeter:  The Court found that the juvenile court and the superior court erred in denying Mr. Cofield and Mr. Jeter contested record-sealing hearings after the juvenile court received objections to their records being sealed at the administrative record-sealing hearing.  The Court reasoned that under RCW 13.50.260(1)(b), the juvenile court must schedule an administrative record sealing hearing at a juvenile’s disposition hearing.  RCW 13.50.260(1)(a) clearly states that the juvenile court “shall” seal the juvenile’s court record at the administrative record-sealing hearing unless “the court receives an objection to sealing or the court notes a compelling reason not to seal.”  If the juvenile court receives an objection or notes a compelling reason not to seal a juvenile offender’s record, the statue provides that “the court shall set a contested hearing to be conducted on the record to address sealing.”  RCW 13.50.260(1)(a) (emphasis added).  RCW 13.50.260(1) makes clear that the legislature intended that juvenile courts seal all juvenile offenders’ records unless certain exceptions apply.  RCW 13.50.260(1) creates a presumption that the juvenile court will seal a juvenile offender’s court record at the administrative record-sealing hearing.  To overcome this presumption, there must be an objection or the juvenile court must note a compelling reason not to seal the record.  If there is such an objection, the juvenile court shall set a contested record-sealing hearing.  RCW 13.50.260(1)(a).  Therefore, as there was an objection here, a contested hearing should have been held. http://www.courts.wa.gov/opinions/pdf/D2%2049039-1-II%20Published%20Opinion.pdf

 


Division III Court of Appeals

State v. Small:  In this partially published opinion, the Court found no violation of Mr. Small’s public trial right when a record of the jury selection process, including silent, on-paper peremptory challenges, was made and misfiled within the clerk’s papers but not within the record of the trial.  The court reasoned that the jury selection process occurred in open court, visible to the public, and that after the notations on the seating chart were made, any member of the public could have requested, and would eventually have received, a copy of that chart.  http://www.courts.wa.gov/opinions/pdf/312267_pub.pdf


State v. Novikoff:  The Court upheld Alex Novikoff’s convictions for felony violation of a protection order and fourth degree assault, rejecting his arguments that the fourth-degree assault conviction either violated double jeopardy protections or merged with the no contact order violation.  The Court found that though the crimes were the same in law and fact, the legislature had signaled a clear intent to make the two crimes punishable separately.  The primary purpose of the assault statutes is to prevent assaultive behavior, but chapter 26.50 RCW, which controls the protection order, serves additional purposes beyond prevention of assault-it addresses the serious societal problem of domestic violence, it assigns more serious penalties than the assault statutes, and it punishes contempt of court. Further, amendments to chapter 26.50 RCW had recently included a statement in the intent section: “The legislature finds this act necessary to restore and make clear its intent that a willful violation of a no-contact provision of a court order is a criminal offense and shall be enforced accordingly to preserve the integrity and intent of the domestic violence act.”  Based on this, the Court found legislative intent was the punish the two crimes separately, and upheld the convictions.  http://www.courts.wa.gov/opinions/pdf/344584_pub.pdf

 


 Federal Law


Ninth Circuit of Appeals

United States v. Preston:  The panel reversed a conviction on two counts of aggravated sexual abuse of a child, and remanded for a new trial.  The panel held that the cumulative effect of the following errors rendered the defendant’s trial fundamentally unfair:  (1) improper witness testimony that bolstered the alleged victim’s credibility and offered opinion on the credibility of sex abuse allegations in general; (2) prejudicial propensity evidence in the form of the defendant’s ex-wife’s testimony regarding a child-incest fantasy the defendant allegedly had in 2003; and (3) prosecutorial misconduct – namely, commenting on the defendant’s decision not to testify, witness vouching, and misstating the evidence in summation.  

Concurring, Judge Kozinski joined the majority opinion, including Part III.B, because the district court erred in admitting testimony about the defendant’s masturbation to establish intent, where the government provided no other rationale for introduction of this evidence.  Judge Kozinski wrote that in the event of a retrial, he does not read this court’s ruling as precluding the government from identifying a different basis on which to seek admission of the testimony, such as to show that the defendant was sexually aroused by young boys.  http://cdn.ca9.uscourts.gov/datastore/opinions/2017/10/17/15-10521.pdf


United States v. Wallen:  The panel vacated the defendant’s conviction after a bench trial for killing three grizzly bears in violation of the Endangered Species Act.  The panel rejected the defendant’s contention that his offense was serious, rather than petty, entitling him to a trial by jury.  The panel held that the magistrate judge, who served as the trier of fact at trial, misconceived the self-defense element of the offense.  The panel held that the “good faith belief” defense for a prosecution under 16 U.S.C. § 1540 is governed by a subjective, rather than an objective, standard, and is satisfied when a defendant actually, even if unreasonably, believes his actions are necessary to protect himself or others from perceived danger from a grizzly bear.  Because the district court applied an objective standard, and the error was not harmless, the panel vacated the conviction and remanded for a new trial.  The panel rejected the defendant’s contention that, even if the Constitution does not guarantee his right to a jury trial, he is entitled to one, because if he is again tried by a judge, that judge would have access to the defendant’s record of conviction, biasing the trier of fact.   http://cdn.ca9.uscourts.gov/datastore/opinions/2017/10/25/16-30033.pdf


United States v. Kelly: The panel affirmed a conviction for selling and possessing with the intent to sell over 446 grams of ethylone, and dismissed the defendant’s challenge to his sentence.   The panel rejected the defendant’s contention that the Drug Enforcement Administration violated the nondelegation doctrine by temporarily adding ethylone as a Schedule I controlled substance.  The panel explained that the plain language of the Controlled Substances Act, as codified at 21 U.S.C. §§ 811(h) and 812(b), permits the DEA to make findings for a parent substance as a basis to temporarily schedule that substance and its isomers.    The panel rejected the defendant’s contention that the DEA violated due process by failing to provide adequate notice that ethylone was a controlled substance.  The panel explained that the defendant received fair notice when the DEA filed the Notice and Order in the Federal Register.  The panel held that the rule of lenity does not apply because the text, history, and purpose of the Controlled Substances Act make unambiguous that Congress intended to empower the DEA to temporarily schedule isomers.   The panel held that because the intent of Congress is clear that the DEA has authority to temporarily schedule a parent substance and its isomers, the district court properly accorded Chevron deference to the agency interpretation.  The panel held that the defendant’s challenge to the district court’s criminal history calculation and resulting sentence is waived.  http://cdn.ca9.uscourts.gov/datastore/opinions/2017/10/30/16-10460.pdf


United States v. Johnson:  The panel reversed the district court’s denial of the defendant’s motion for a judgment of acquittal in a case in which the defendant was convicted of obstruction of justice under 18 U.S.C. § 1512(b)(3) for failing to include material information about the use of force upon an inmate in reports documenting the encounter with the inmate.  The panel held that the “reasonable likelihood” standard articulated in Fowler v. United States, 563 U.S. 668 (2011), applies to the federal nexus requirement of § 1512(b)(3). Applying the Fowler standard, the panel held that there was insufficient evidence for any rational juror to find that it was reasonably likely that the defendant’s reports would have reached federal officers.  http://cdn.ca9.uscourts.gov/datastore/opinions/2017/11/02/16-50018.pdf


United States v. Hernandez-Quintania:  The panel affirmed (1) a conviction under 18 U.S.C. § 1326 for reentry by a previously-deported alien without the express consent of the Attorney General to reapply for admission, and (2) the resulting revocation of the defendant’s supervised release from a prior illegal reentry conviction.   The panel rejected the defendant’s contention that the government failed to prove he did not obtain the Attorney General’s consent to reapply for admission to entering the United States.  The panel held that § 1326 requires a deported alien to receive the Attorney General’s consent to reapply for admission after his or her most recent deportation, regardless of whether he or she had prior permission to reapply, and that the evidence was sufficient for the jury to find that the defendant was in the United States without such consent. The panel held that the district court properly denied the defendant’s Batson challenge asserting that the government struck two jurors based on their ethnicity.  The panel held that the totality of the circumstances does not raise an inference that the government’s challenges were racially motivated, that the defendant failed to make a prima facie case of discrimination, and that the district court’s comments regarding the possible reasons for striking the jurors did not constitute structural error.   http://cdn.ca9.uscourts.gov/datastore/opinions/2017/11/03/16-50171.pdf


Browning v. Baker:  The panel filed an order in which (1) Judges Wardlaw and Gould amended their September 20, 2017, majority opinion in Paul Browning’s appeal from the denial of his habeas corpus petition; (2) Judge Callahan objected to any basis for expanding the COA, and stood by her dissent; and (3) the panel denied a Petition for Panel Rehearing.  In the opinion, the panel affirmed the district court’s denial of Mr. Browning’s habeas corpus petition as to his escape conviction; reversed the district court’s denial of the petition as to Browning’s convictions of burglary, robbery with the use of a deadly weapon, and murder with the use of a deadly weapon; and remanded for further proceedings.  Mr. Browning contended that the prosecutor withheld material evidence favorable to the defense in violation of his constitutional rights as described in Brady v. Maryland, 373 U.S. 83 (1963), and presented false and misleading evidence at trial in violation of his constitutional rights as described in Napue v. Illinois, 360 U.S. 264 (1959).  The panel held that an officer’s shoeprint observation, a witness’s expectation of a benefit for his testimony, and the precise description of the assailant’s hairstyle received from the victim were all favorable to Browning under Brady.  The panel held that Mr. Browning’s Napue claim fails because it was not clearly established at the time of Supreme Court of Nevada’s decision that a police officer’s knowledge of false or misleading testimony would be imputed to the prosecution. For the Brady evidence, except for the witness’s expectation of a benefit for his testimony, the Supreme Court of Nevada did not explicitly address whether this evidence was favorable to Mr. Browning.  The panel held that had the Supreme Court of Nevada not viewed the evidence as favorable to the defense, it would have been an unreasonable application of Supreme Court precedent.  The panel also held that it was an objectively unreasonable application of Supreme Court precedent to hold that the Brady materiality standard was not met here, and therefore concluded that the district court should have granted habeas relief on Mr. Browning’s Brady claims.  Mr. Browning also contended that he was denied his right to effective assistance of trial counsel due to inadequate pretrial investigation and preparation.  Granting Mr. Browning’s motion to expand the certificate of appealability, and explaining that the court considers counsel’s conduct as a whole to determine whether it was constitutionally adequate, the panel wrote that the district court erred by limiting the COA to particular “claims” that counsel’s failure to investigate particular avenues of evidence were deficient.  The panel held that Mr. Browning’s trial counsel unreasonably failed to investigate Mr. Browning’s case, and that the Supreme Court of Nevada unreasonably concluded that Mr. Browning failed to prove just that.  The panel amended the opinion to state that because Mr. Browning’s ineffective of assistance of counsel claims succeed on other grounds, it need not address other alleged deficiencies argued by Mr. Browning in support of an expansion of the COA.  The panel held that the Supreme Court of Nevada’s conclusion that any deficient performance did not prejudice Mr. Browning was objectively unreasonable. The panel concluded that Mr. Browning is entitled to a writ of habeas corpus with respect to his convictions of burglary, robbery with the use of a deadly weapon, and murder with the use of a deadly weapon.  The panel wrote that Mr. Browning is not entitled to relief as to his escape conviction because he offered no reason to call its validity into question.

Dissenting in part, Judge Callahan wrote that a meaningful application of the deferential standard of review under AEDPA compels the conclusion that the Nevada Supreme Court was not objectively unreasonable in rejecting Mr. Browning’s ineffective assistance of counsel claim as well as his claims under Brady and Napuehttp://cdn.ca9.uscourts.gov/datastore/opinions/2017/11/03/15-99002.pdf

 

CJE Wire: Case Law Updates — 2017 October 13

 


 Washington State Courts


Washington State Supreme Court

Blomstrom v. Tripp:  The Washington State Supreme Court found that the three petitioners in this consolidated case lacked an adequate remedy at law in the lower courts, and therefore were entitled to statutory writs of review to challenge pre-trial random UA requirements.  In an opinion authored by Justice Wiggins, and joined by Justices Stephens, Gordon McCloud, Johnson, and Owens, the Court further found that the pre-trial testing requirements violated Article 1, section 7 of the Washington State Constitution, as the UA requirements invaded the petitioners’ private affairs, and there was no legal authority for the imposition of the pre-trial testing requirements.  The Court declined the State’s invitation to adopt the federal special needs exception to the warrant requirement in this context, holding that the petitioners did not have a diminished expectation of privacy pre-trial, noting that all were presumed innocent at this stage of proceedings.

Dissenting in part, Justice Gonzalez, joined by Chief Justice Fairhurst, and Justices Madsen and Yu, argued that the majority’s interpretation of Article 1, Section 7 usurps the trial court’s authority to determine pre-trial release conditions.  The dissent noted that probable cause for prosecution had been found in each case, and that the probable cause finding was evidence that the defendant may reoffend.  Therefore, the dissent argued, each had a diminished expectation of privacy and the court had the authority under CrRLJ 3.2 to order random drug testing as a pre-trial condition of release.


State v. Barnes:  In an opinion authored by Justice Owens and joined by Justices Johnson and Madsen, a plurality of the Court determined that a riding lawn mower does not fit the definition of a “motor vehicle” under RCW 9A.56.065, Washington’s theft of a motor vehicle statute.  The Court reasoned that the legislature had chosen not to define “motor vehicle” in the theft statute, and therefore the Court gave the term its plain and ordinary meaning.  Though that definition could encompass a riding lawn mower, the Court determined that the legislature had explicitly indicated a differing intent, noting that the legislature used the term “car,” “auto,” or “auto theft” more often in its findings than the term “motor vehicle,” and that the legislature “passed this bill with the explicit purpose of curbing the rising rate of auto thefts.”  The Court noted in dicta that the legislative history of the act further supports this interpretation. 

Concurring, Justice Wiggins, joined by Justices Gordon McCloud and Stephens, wrote separately to clarify two steps the concurrence believed were necessary to the analysis.  First, the Court should “should consider the entirety of the statute when interpreting the phrase “motor vehicle.” Second, upon concluding the term is ambiguous, the concurrence wrote that the Court “must serve the legislature’s stated intent in light of the circumstances in which the statute was passed.” Following this process, the concurrence reached the same conclusion as the lead opinion. 

Dissenting, Justice Gonzales, joined by Justice Yu and the Chief Justice, agreed with the lead opinion’s statement that “a plain reading of the term [‘motor vehicle’] could conceivably include a riding lawn mower,” and that it is not inconceivable for the legislature to have intended this result.  The dissent argued that the Court’s analysis should turn on the plain meaning of the statute, which in the dissent’s opinion, included riding lawn mowers.  The dissent claimed that the lead opinion rewrote the statute “because it believes the legislature probably meant ‘automobiles.’”  To the contrary, the dissent argued, the statute clearly says, “motor vehicle,” and the legislative definition of the term “vehicle” incudes “all self-propelled vehicles, such as low-speed, four-wheeled neighborhood electric vehicles, RCW 46.04.320, and farm mowing machines, RCW 46.04.180.”  The dissent argued that the Court should not have disregarded or circumvented the plain meaning of the statute.  http://www.courts.wa.gov/opinions/pdf/938296.pdf


State v. Salgado-Mendoza:  Justice Stephens, joined by Chief Justice Fairhurst and Justices Wiggins, Gonzales, and Owens determined that the State’s disclosure of the State Toxicologist witness the morning of trial was misconduct, but had not prejudiced the defendant in this case, and the trial court’s decision not to impose sanctions was not “manifestly unreasonable” given the facts of the case.  The Court observed that the State had disclosed the names of nine toxicologists from the lab five months prior to trial, narrowing this list down to three the day before trial and to one the morning of trial.  The Court reasoned that counsel had had ample time to prepare to cross-examine all nine toxicologists, that all nine would have provided substantively similar testimony, and the defendant was not prejudiced by the late disclosure.  The Court reasoned that CrRLJ 8.3(b) and case law require actual prejudice to be demonstrated by a preponderance of the evidence, and found no actual prejudice in this case.  The Court noted with displeasure, however, the prosecutor’s apparent minimization of the State’s discovery obligations, having stated that “[t]he defendant was given the name as soon as we had it and that’s all we can do in terms of disclosure.”  The Court found this statement incorrect, stating that “pursuing disclosure of information the prosecutor does not have is literally the purpose of CrRLJ 4.7(d).” In a footnote, the Court also expressed concern that this pattern of disclosure appears to be the standard operating procedure for the state toxicology lab. 

Dissenting, Justice Madsen, joined by Justices Yu, Gordon McCloud, and Johnson, agreed that the late disclosure of the name of the testifying toxicologist in Mr. Salgado-Mendoza’s Trial constituted misconduct.  The dissent, however, argued that Mr. Salgado Mendoza was prejudiced by this delayed disclosure. The dissent observed that “[f]orcing a defendant to bear the burden of preparing to cross-examine a long list of witnesses when the State only intends to call one is not how our system of justice operates. The State cannot cite funding deficiencies and simply shift its burden of prosecution onto defense counsel. If the State wishes to pursue prosecution, it must allocate sufficient resources to its departments so that they may operate in a way that is consistent with a defendant’s right to a fair trial. By understaffing the State’s toxicology laboratory so that they cannot confirm who will testify until the day of trial, the State is not meeting this burden and defendants are being forced to compensate for the deficiency.”  The dissent argued that the defense showed actual prejudice because the State’s late disclosure forced the defendant to choose between his right to a speedy trial and his right to adequately prepared counsel, noting that counsel had made it clear he would have preferred to request a continuance, but the defendant did not want to waive his speedy trial rights.  Citing as an example of defense counsel’s lack of preparedness, the dissent pointed to an instance in cross-examination where counsel attempted to question the testifying toxicologist about a 2009 study “that allegedly criticized certain tests regularly used by the State toxicology laboratory.”  However, the toxicologist was not aware of the specific study, leading the trial court to sustain the State’s objection to the line of questioning due to this unfamiliarity.  The dissent observed, “[h]ad the State provided Salgado-Mendoza with the name of the testifying toxicologist prior to the morning of trial, defense counsel could have interviewed the toxicologist, learned what studies he was familiar with, and provided him a copy of the unfamiliar study so that they could have a productive dialogue about it during cross-examination. Without that time for preparation, defense counsel’s attempt at using the study to defend his client simply fell flat.”  The dissent also stressed that the trial court erred in describing toxicologist witnesses as “fungible,” and argued that the majority ruling minimized the importance of the differences between these experts.  The dissent concluded that “we cannot demand a criminal defendant go above and beyond to compensate for the State’s mismanagement of its expert witnesses,” and argued that the case should have been dismissed, noting that allowing “underfunding and congestion at the State’s toxicology lab to excuse fair trial rights” gives the State no incentive to remedy the problem.  http://www.courts.wa.gov/opinions/pdf/932930.pdf

 


Division I Court of Appeals

State v. Sinrud:  The Court reversed Ms. Sinrud’s conviction for possession of a controlled substance with intent to deliver and remanded for a new trial.  The Court found that the element of “knowingly” was added to the possession requirement under the law of the case doctrine, as this word was part of the jury instructions, but that there was sufficient evidence to support this element.  The Court also found that one of the jury instructions, which contained the phrase “[t]he law requires at least one additional corroborating factor” with reference to possession with intent to deliver, constituted a judicial comment on the evidence.  The Court agreed, reasoning that the sentence prior to the objected to sentence stated that “the law requires” substantial corroborating evidence. By stating that the law requires at least one additional factor in the next sentence, the Court found that this conflated these two requirements “such that a reasonable juror would have interpreted the second sentence to be defining the first.”  The Court found that there could have been prejudice, as no direct evidence demonstrated that Ms. Sinrud intended to deliver the drugs she possessed.  http://www.courts.wa.gov/opinions/pdf/750526.pdf

 


Division II Court of Appeals

State v. Pippin:  In this partially published opinion, the Court found that Mr. Pippin’s tent, which served as his residence, and its contents were entitled to constitutional privacy protection under article I, section 7.  The Court reasoned that Mr. Pippin’s tent served “as a refuge or retreat from the outside world,” and he thus had an expectation of privacy in the tent and the belongings within under article I, section 7. The Court found that the “law is meant to apply to the real world, and the realities of homelessness dictate that dwelling places are often transient and precarious.  The temporary nature of Pippin’s tent does not undermine any privacy interest.”  The court found that the fact that Mr. Pippin was unlawfully occupying public land did not diminish this privacy interest.  The court concluded that “…the law is something more than a stay against anarchy or oil for the wheels of trade.  Its work also is to bring signs of justice amid our thirsts and furies and, in doing so, remind us of our humanity.”  http://www.courts.wa.gov/opinions/pdf/D2%2048540-1-II%20Published%20Opinion.pdf


In re Restraint of Sorenson:  The court dismissed Mr. Sorenson’s PRP as time barred, as it was filed about 13 months after the Court issued its mandate on his direct appeal.  The Court found that the time taken by the trial court to correct scrivener’s errors in his judgment and sentence, as directed on remand, did not toll the one-year period as the trial court did not exercise its independent judgment in correcting the scrivener’s errors on remand.  The Court reasoned that there were no reviewable issues when the trial court had not exercised any independent judgment on remand, making the time of the mandate the date that the decision was final.  http://www.courts.wa.gov/opinions/pdf/D2%2048111-1-II%20Published%20Opinion.pdf

 


 Federal Law


Ninth Circuit of Appeals

Gonzalez v. Sherman: Reversing the district court’s dismissal of a California state prisoner’s habeas corpus petition and remanding, the panel held that a state court’s alteration of the number of presentence credits to which a prisoner was entitled under California law constitutes a new, intervening judgment which renders a subsequent federal habeas petition a first rather than second or successive petition under 28 U.S.C. § 2244(b)(1). http://cdn.ca9.uscourts.gov/datastore/opinions/2017/10/11/14-56855.pdf


Kirkpatrick v. Chappell:  The panel vacated the district court’s order dismissing for lack of exhaustion claims in William Kirkpatrick, Jr’s habeas corpus petition challenging his murder conviction and death sentence, and remanded to the district court so that it may adjudicate those claims on the merits.  The district court dismissed the claims as unexhausted on the grounds that, although Mr. Kirkpatrick presented them to the California Supreme Court, he subsequently waived them by means of a handwritten, pro se filing.  The California Supreme Court ruled that the handwritten form constituted a valid waiver despite the conclusion of the referee it appointed that there was not enough evidence that the waiver was made knowingly, voluntarily, and intelligently.  The district court agreed with the California Supreme Court.  The panel held that there is insufficient evidence in the record to support a finding that Mr. Kirkpatrick’s handwritten form constituted a valid waiver of his right to proceed and that the State of California failed to carry its burden to the contrary.  Consequently, the panel held that the district court erred in dismissing the claims as unexhausted.

Dissenting, Judge Kozinski wrote that the majority failed to defer to the California Supreme Court whose findings are supported by more than enough evidence, and that under de novo review Kirkpatrick would fare no better, but that none of this matters because California has no functional death penalty. http://cdn.ca9.uscourts.gov/datastore/opinions/2017/10/10/14-99001.pdf


United States v. Bonnett:  Affirming a sentence for receipt and distribution of child pornography, the panel held that malingering may support an obstruction of justice enhancement pursuant to U.S.S.G. § 3C1.1.  The panel explained that without any factual objections to resolve, there was no violation of Fed. R. Crim. P. 32.  The panel rejected the defendant’s challenge to an enhancement pursuant to U.S.S.G. § 2G2.2(b)(3)(B) (2015) for distribution of pornography for a “thing of value.”  http://cdn.ca9.uscourts.gov/datastore/opinions/2017/10/10/15-10557.pdf


United States v. Slade:  The panel vacated a sentence for being a felon in possession of a firearm, and remanded for resentencing, in a case in which the district court treated the defendant’s prior conviction under Washington’s second-degree assault statute, RCW 9A.36.021, as a “crime of violence” under the United States Sentencing Guidelines.   The panel held that United States v. Jennen, 596 F.3d 594 (9th Cir. 2010), in which this court affirmed a sentence when the district court had treated a prior conviction under section 9A.36.021(1)(c) as a crime of violence, has been effectively overruled by the Supreme Court’s decisions in Descamps v. United States, 133 S. Ct. 2276 (2013), and Mathis v. United States, 136 S. Ct. 2243 (2016).  Applying United States v. Robinson, 869 F.3d 933 (9th Cir. 2017), the panel wrote that section 9A.36.021 criminalizes conduct that does not meet the generic federal definition of crime of violence and is not divisible.  The panel concluded that the district court therefore erred in applying the modified categorical approach and in determining that the defendant’s prior conviction constituted a crime of violence, which caused the district court to miscalculate the defendant’s base offense level and Guidelines range.   http://cdn.ca9.uscourts.gov/datastore/opinions/2017/10/10/16-30150.pdf

 

 

 

 

 

CJE Wire: Case Law Updates — 2017 October 3

 


 Washington State Courts


Washington State Supreme Court

In Re Canha:  In a unanimous opinion authored by Justice Wiggins, the Court found that the lower court erroneously failed to conduct a comparability analysis before including four out-of-state convictions in Steven Canha’s offender score.  The State conceded that one of the convictions was not comparable, and Mr. Canha conceded that another was in fact comparable.  With regard to the last two offenses, voluntary manslaughter in California and unlawful possession of a firearm in Oregon, the Court found that neither of the offenses were legally comparable to an offense in Washington.  However, because of the intent requirement then in place in California, the Court found that the voluntary manslaughter offense was factually comparable to Washington’s offense of Second Degree Murder.  With regard to the unlawful possession of a firearm offense, the Court determined that Second Degree Murder counts as a “serious offense” under Washington Law, and that this case was likewise factually comparable, despite the fact that any felon in the State of Oregon is prohibited from possessing a firearm.  The Court concluded that three of Mr. Canha’s four out-of-state convictions were properly included in his offender score, and remanded for resentencing due to the change in offender score required by removing one of those convictions.  http://www.courts.wa.gov/opinions/pdf/941751.pdf

 


Division III Court of Appeals

State v. Sleater:  The Court affirmed an order denying Kasi Sleater’s motion to vacate her 2006 conviction for possession of methamphetamines.  Ms. Sleater argued that a subsequent offense occurring after the certificate of discharge issued for the initial offense was not a “new crime” pending vacation of the offense.  Ms. Sleater obtained a certificate of discharge for a 2006 conviction on May 22, 2008.  However, a week prior to the issuance of the certificate, she had been arrested for possession of methamphetamine with intent to deliver.  She pled guilty on May 29, 2008.  The Court found that Ms. Sleater’s subsequent motion to vacate the 2006 conviction was properly denied, because the 2008 conviction prevented vacation of the 2006 conviction.  In what the court termed a “clever” argument, Ms. Sleater posited that the 2008 offense was not new, as it had occurred and was known to law enforcement prior to the certificate of discharge, and that only an offense occurring after the certificate of discharge should prevent vacation.  The Court found that the plain language of the statue, which prevents vacation if an offender has been convicted of a new crime since the date of discharge for an older crime, clearly focuses on the conviction date, not the date of arrest or charging.  “It is the fact of conviction of a new crime, not the date that the new crime was committed, that has significance for the vacation rules,” the Court concluded.  http://www.courts.wa.gov/opinions/pdf/348512_pub.pdf

 

 


 Federal Law


Ninth Circuit of Appeals

United States v. Jayavarman:  The panel affirmed a conviction for attempt to produce and transport into the United States a visual depiction of a minor engaged in sexually explicit conduct in violation of 18 U.S.C. § 2251(e) (Count 1B), vacated a conviction for attempt to aid and abet travel with intent to engage in illicit sexual conduct in violation of 18 U.S.C. § 2243(b) (Count 2B), vacated the sentence as to both counts, and remanded for resentencing. The panel accepted the government’s concession that the conviction as to Count 2B must be vacated because § 2423 does not cover attempted aiding and abetting.  The panel held that a defendant may be convicted of an attempt to produce and transport a visual depiction of a minor engaged in sexually explicit conduct when he believes that the victim is a minor, regardless of the victim’s actual age.  The panel rejected the defendant’s contentions (1) that the Constitution’s Foreign Commerce Clause does not authorize Congress to prohibit transportation of a sexually explicit visual depiction pursuant to 18 U.S.C. § 2251(c) if the depiction does not depict an actual minor; and (2) that prohibiting an attempt to make a sexually explicit video with a performer who the producer mistakenly believes to be a minor would chill lawful speech in violation of the First Amendment.    The panel rejected the defendant’s contention that the jury instruction as to Count 1B constituted a constructive amendment of the indictment.  Rejecting the defendant’s sufficiency-of-the-evidence challenge, the panel held that a rational jury could have found that the government proved beyond a reasonable doubt that the defendant believed the victim was a minor at the time he made and transported the visual depictions.  Rejecting the defendant’s challenge to the district court’s grant of the government’s motion in limine to admit audio recordings of the defendant’s statements, the panel concluded that the district court did review the transcripts, and that even if the district court had not read every word, the error would have been harmless because the exhibits were clearly admissible under Fed. R. Evid. 403.  Rejecting the defendant’s contention that the district court erred under the Court Interpreters Act, the panel held that the district court did not clearly err in determining that the defendant was sufficiently proficient in English that he did not require an interpreter. In addition to vacating the defendant’s conviction as to Count 2B, the panel vacated his sentence as to Count 1B and remanded for resentencing as to both counts because his sentence as to Count 1B was likely affected by his conviction as to Count 2B.  http://cdn.ca9.uscourts.gov/datastore/opinions/2017/09/26/16-30082.pdf


Rodriguez v. McDonald:  The panel reversed the district court’s judgment denying Jessie Rodriguez’s habeas corpus petition challenging his conviction for second-degree murder and attempted murder, and remanded, in a case in which Mr. Rodriguez, who was fourteen years old at the time detectives interviewed and arrested him, argued that his written confession was obtained in violation of Miranda v. Arizona.   After reviewing the record available to the state courts, including a videotape of the interview and transcript of that videotape, the panel held that the California Court of Appeal’s determination that the detectives honored Mr. Rodriguez’s invocation of his right to counsel was unreasonable.  Having concluded that the state court’s decision was based on an unreasonable determination of facts, the panel reviewed the legal issues de novo, and held that the government failed to meet its heavy burden of showing that Mr. Rodriguez’s subsequent waiver of his right to counsel was knowing, intelligent, and voluntary.  The panel held that the admission of Mr. Rodriguez’s confession was not harmless, and that Mr. Rodriguez is therefore entitled to habeas relief.   http://cdn.ca9.uscourts.gov/datastore/opinions/2017/09/29/12-56594.pdf

 

 

 

 

CJE Wire: Case Law Updates — 2017 September 22

 


 Washington State Courts


Division III Court of Appeals

State v. D.E.D.: The Court overturned D.E.D.’s juvenile adjudication finding him guilty of obstructing a public servant, concluding that “his passive resistance to an investigatory stop was not a crime under these facts.” D.E.D was stopped after a call to 911 complaining of a group of youth in front of the caller’s house who “did not belong in the neighborhood.” The responding officer found no group, only the defendant making his way down the street. With no justification to contact him, the officer nonetheless attempted to engage D.E.D. in conversation, which was met with open hostility. The officer then received a call about a group of young men with a gun nearby but, rather than allowing D.E.D. to continue on his way, the officer attempted to handcuff him, though telling him he was not under arrest. D.E.D resisted being handcuffed, and was then arrested for obstruction. The Court held that there is “no duty to cooperate with police,” and that lack of cooperation with an investigation cannot be used as the basis for an obstruction charge. Specifically, the Court found that “passive resistance consistent with the lack of a duty to cooperate…is not criminal behavior.” The Court cautioned against extending the holding to instances of more active resistance, however.

Concurring, Judge Fearing agreed with the conclusion, but disagreed with the basis, arguing that the officer had no reasonable suspicion that D.E.D had engaged in criminal activity, such that the officer had a basis to conduct a Terry stop. Further, the concurrence disagreed that there was no duty to cooperate with police if in fact the stop had been lawful. Judge Fearing opined that the detainee at the least “should cooperate by standing still and refraining from struggling with the officer.” http://www.courts.wa.gov/opinions/pdf/338584_pub.pdf

 

 


 Federal Law


Ninth Circuit of Appeals

Browning v. Baker: The panel affirmed the district court’s denial of Paul Browning’s habeas corpus petition as to his escape conviction; reversed the district court’s denial of the petition as to Mr. Browning’s convictions of burglary, robbery with the use of a deadly weapon, and murder with the use of a deadly weapon; and remanded for further proceedings. Mr. Browning contended that the prosecutor withheld material evidence favorable to the defense in violation of his constitutional rights as described in Brady v. Maryland, 373 U.S. 83 (1963), and presented false and misleading evidence at trial in violation of his constitutional rights as described in Napue v. Illinois, 360 U.S. 264 (1959). The panel held that an officer’s shoeprint observation, a witness’ expectation of a benefit for his testimony, and the precise description of the assailant’s hairstyle received from the victim were all favorable to Mr. Browning under Brady. The panel held that Mr. Browning’s Napue claim fails because it was not clearly established at the time of Supreme Court of Nevada’s decision that a police officer’s knowledge of false or misleading testimony would be imputed to the prosecution. For the Brady evidence, except for the witness’s expectation of a benefit for his testimony, the Supreme Court of Nevada did not explicitly address whether this evidence was favorable to Mr. Browning. The panel held that had the Supreme Court of Nevada not viewed the evidence as favorable to the defense, it would have been an unreasonable application of Supreme Court precedent. The panel also held that it was an objectively unreasonable application of Supreme Court precedent to hold that the Brady materiality standard was not met here, and therefore concluded that the district court should have granted habeas relief on Mr. Browning’s Brady claims. Mr. Browning also contended that he was denied his right to effective assistance of trial counsel due to inadequate pretrial investigation and preparation. Granting Mr. Browning’s motion to expand the certificate of appealability, and explaining that the court considers counsel’s conduct as a whole to determine whether it was constitutionally adequate, the panel wrote that the district court erred by limiting the COA to particular “claims” that counsel’s failure to investigate particular avenues of evidence were deficient. The panel held that Mr. Browning’s trial counsel unreasonably failed to investigate Mr. Browning’s case, and that the Supreme Court of Nevada unreasonably concluded that Mr. Browning failed to prove just that. The panel held that the Supreme Court of Nevada’s conclusion that any deficient performance did not prejudice Mr. Browning was objectively unreasonable. The panel concluded that Mr. Browning is entitled to a writ of habeas corpus with respect to his convictions of burglary, robbery with the use of a deadly weapon, and murder with the use of a deadly weapon. The panel wrote that Mr. Browning is not entitled to relief as to his escape conviction because he offered no reason to call its validity into question.

Dissenting in part, Judge Callahan wrote that a meaningful application of the deferential standard of review under AEDPA compels the conclusion that the Nevada Supreme Court was not objectively unreasonable in rejecting Mr. Browning’s ineffective assistance of counsel claim as well as his claims under Brady and Napue. http://cdn.ca9.uscourts.gov/datastore/opinions/2017/09/20/15-99002.pdf

 

 

CJE Wire: Case Law Updates — 2017 September 8

 


 Washington State Courts


 

Division II Court of Appeals

State v. Martell: The Court affirmed the trial court’s order amending Mr. Martell’s sentence to impose an indeterminate sentence under the sex offender sentencing statutes’ indeterminate sentencing provision, RCW 9.94A.507(1)(b), following his guilty plea conviction for second degree possession of depictions of minors engaged in sexually explicit conduct. The Court disagreed with Mr. Martell’s argument that the sex offender indeterminate sentencing provision requires a prior conviction for an offense involving a pattern of criminal street gang activity. Looking at the legislative history of and revisions to the statute, the Court found that at the time Mr. Martell committed his offense, he would have had to have had a prior sex offense, such as those to which he stipulated, to be considered a persistent offender. Therefore, the Court concluded that the amended sentence was correct. http://www.courts.wa.gov/opinions/pdf/D2%2048890-6-II%20Published%20Opinion.pdf

 


Division III Court of Appeals

State v. Vela: The Court reversed Mr. Duarte Vela’s conviction for second degree murder, finding that the trial court erred in refusing to allow Mr. Duarte Vela to explain to the jury his fear of the victim and the severity of injury feared, specifically by bringing in evidence of prior threats made by the victim and a prior abduction of Mr. Duarte Vela’s sister by the victim. The court found that the trial court’s rulings violated Mr. Duarte Vela’s right under the Sixth Amendment to the United States Constitution to present a defense.

Dissenting, Judge Korsmo argued that the trial court correctly excluded the evidence as to prior threats against Mr. Duarte Vela or abuse of Mr. Duarte Vela’s sister in the past, claiming that neither was relevant to the self-defense charge. The dissent argued that the appellate court improperly substituted its judgment for that of the trial court in determining the admissibility of the evidence. http://www.courts.wa.gov/opinions/pdf/332993_pub.pdf

 


 Federal Law


Ninth Circuit of Appeals

United States v. Mercado Moreno: The panel affirmed the district court’s denial of a motion for reduction of sentence under 18 U.S.C. § 3582(c)(2) in light of retroactive Sentencing Guidelines Amendment 782, which raised from 1.5 to 4.5 kilograms the quantity of actual methamphetamine required to trigger the maximum base offense level. The panel held that a district court in § 3582(c)(2) proceedings may make supplemental findings of drug quantity if they are necessary to determine the defendant’s eligibility for a sentence reduction in light of a retroactive Guidelines amendment, but that in doing so, the district court may not make supplemental findings that are inconsistent with the findings made by the original sentencing court.   The panel held that a district court has broad discretion in how to adjudicate § 3582(c)(2) proceedings, including whether to hold a hearing when making supplemental findings of drug quantity. The panel rejected the defendant’s argument that the district court was required to hold a contested hearing when making its supplemental findings. The panel explained that when the district court does not consider any evidence outside of the record at sentencing, an evidentiary hearing will not always be necessary. The panel rejected the defendant’s contention that the district court was required to hold a hearing pursuant to U.S.S.G. § 6A1.3, which applies only in original sentencing proceedings, not in § 3582(c)(2) proceedings. The panel rejected the defendant’s contention that the sentencing court’s finding that he distributed a total of 4.2 kilograms of methamphetamine was a specific finding of drug quantity that precluded the district court from engaging in any supplemental fact-finding. Because the original sentencing court did not make any findings regarding the amount of manufactured methamphetamine attributable to the defendant, it was necessary for the district court to make those supplemental findings in order to rule on the defendant’s later motion. The panel held that the district court’s conclusion that the defendant was responsible for at least 4.5 kilograms of actual methamphetamine was not clearly erroneous. The panel held that the district court therefore did not err in concluding, without a hearing, that the defendant was ineligible for a sentence reduction under § 3582(c)(2) because Amendment 782 did not lower his applicable guideline range. http://cdn.ca9.uscourts.gov/datastore/opinions/2017/08/28/15-10545.pdf


Ybarra v. Filson: The panel (1) vacated the district court’s order denying Nevada state prisoner Robert Ybarra’s motion under Fed. R. Civ. P. 60(b) to reopen his habeas corpus proceedings challenging his death sentence based on Atkins v. Virginia, 536 U.S. 304 (2002), and remanded for reconsideration; (2) affirmed the district court’s order denying Mr. Ybarra’s Rule 60(b) motion raising a claim based on Hurst v. Florida, 136 S. Ct. 616 (2016), which invalidated Florida’s capital sentencing scheme; and (3) denied Mr. Ybarra’s application for leave to file a second or successive habeas petition raising a claim based on Hurst.   Mr. Ybarra claims that he is categorically exempt from the death penalty because he is intellectually disabled. The panel held that Mr. Ybarra’s Atkins-based Rule 60(b) motion was not a disguised second or successive habeas petition, and that the district court therefore did not err in concluding that it had jurisdiction to consider it. Reviewing de novo, the panel held that the district court erred in its AEDPA analysis of the Atkins-based motion by overlooking a number of instances where the Nevada Supreme Court contradicted the very clinical guidelines that it purported to apply, which is especially problematic in light of the decision in Bromfield v. Cain, 135 S. Ct. 2269 (2015), and by refusing to consider a doctor’s report concluding that Mr. Ybarra was intellectually disabled, which was part of the record under Cullen v. Pinholster, 563 U.S. 170 (2011). The panel held that the Mr. Ybarra’s Hurst-based Rule 60(b) motion was a disguised and unauthorized second or successive habeas petition, and therefore affirmed the district court’s order denying the motion.   The panel held that Hurst does not apply retroactively, and therefore denied Mr. Ybarra’s properly-filed application for leave to file a second or successive habeas petition in which he argues, based on Hurst, that Nevada’s capital sentencing scheme is unconstitutional.  http://cdn.ca9.uscourts.gov/datastore/opinions/2017/09/01/13-17326.pdf


United States v. Torres: The panel affirmed four defendants’ convictions and sentences for racketeering, drug trafficking conspiracy, and related offenses involving the Puente-13 street gang. The panel held that the district court’s jury instruction for determining drug quantities under 21 U.S.C. § 841(b), which required the jury to determine drug quantities that were reasonably foreseeable to each defendant in connection with his criminal activity, was not reversible error, even though the jury was not required to find that the drug quantities related to violations that were part of a jointly undertaken criminal activity. In a separate opinion that states the majority opinion as to this issue, Judge Clifton wrote that the reasoning of United States v. Banuelos, 322 F.3d 700 (9th Cir. 2003), in favor of employing a disjunctive formulation for assigning an individual conspirator’s responsibility for drug quantity, has since been undermined. Judge Clifton wrote that en banc review will ultimately be necessary to sort out the inconsistency in the case law, but that the questions need not be resolved in this case because plain error review applies here, and any error in the jury instructions did not affect the defendants’ substantial rights. The panel held that the district court did not err in denying defendant Abraham Aldana’s request for a multiple conspiracies instruction, where there was no evidence upon which the jury could rationally sustain the defense that he was a member only of separate conspiracies and not of the Puente13 conspiracy. The panel rejected the defendants’ argument that because their state convictions overlap temporally with their convictions in this case, the state convictions cannot be considered “prior” convictions that trigger sentencing enhancements under § 841(b). The panel held that because the jury verdict necessarily determined that the defendants’ conspiracy continued past the dates when their state convictions became final, the district court did not err in relying on the defendants’ prior drug convictions to impose the mandatory minimum penalties under § 841(b). The panel rejected the defendants’ argument that 21 U.S.C. §§ 841(b) and 851 violate the Sixth Amendment as interpreted in Apprendi v. New Jersey, 530 U.S. 466 (2000), and Alleyne v. United States, 133 S. Ct. 2151 (2013). The panel explained that by permitting a court to find “the fact of a prior conviction,” the Supreme Court in Apprendi empowered a court to determine that the conviction was prior to the case before the court.

In the portion of her opinion that constitutes a special concurrence in Judge Clifton’s opinion, Judge Ikuta wrote that the panel remains bound by Banuelos, and that the district court therefore did not err in only requiring the jury to determine what quantities of drugs were reasonably foreseeable to each defendant in connection with his criminal activity. http://cdn.ca9.uscourts.gov/datastore/opinions/2017/09/06/13-50088.pdf


United States v. D.M.: The panel vacated the district court’s order denying the defendant’s motion for a sentence reduction under 18 U.S.C. § 3582(c)(2). The government agreed that the defendant was eligible for a sentence reduction under United States Sentencing Guidelines Amendment 782, which lowered the recommended sentence for drug offenses. The panel held that despite the defendant’s release from federal prison, the appeal was not moot. Agreeing with the Seventh Circuit, the panel held that U.S.S.G. § 1B1.10(b)(2)(B) allows a court to consider a number of departures when calculating a reduction in sentence where the defendant has provided substantial assistance, and the court is not limited to consideration only of the departure attributable to substantial assistance. The panel distinguished United States v. Ornelas, 825 F.3d 548 (9th Cir. 2016), which did not address § 1B1.10(b)(2)(B), an exception to the policy statement otherwise set forth in U.S.S.G. § 1B1.10(a). The panel also concluded, alternatively, that the defendant was entitled to the benefit of the rule of lenity because the Guideline was ambiguous. http://cdn.ca9.uscourts.gov/datastore/opinions/2017/09/07/16-50243.pdf


United States v. Faagai: The panel affirmed the district court’s order denying the defendant’s motion to suppress contraband seized during a warrantless search of the defendant’s truck. The panel held that under the totality of the circumstances, there was probable cause to believe that contraband would be found in the truck, and that the search was therefore permissible under the automobile exception to the warrant requirement.

Dissenting, Judge Kozinski wrote that the government, whose case rests on four meetings between the defendant and a suspected meth dealer, came nowhere close to meeting the probable cause standard, where officers, who observed most of the meetings and wiretapped the dealer’s phone, never saw a handoff of money or contraband, nor heard an explicit mention of drugs. http://cdn.ca9.uscourts.gov/datastore/opinions/2017/09/07/15-10621.pdf


Smith v. Williams: The panel reversed the district court’s judgment dismissing as untimely Taniko Smith’s federal habeas corpus petition, and remanded for further proceedings, in a case in which the state trial court entered a Second Amended Judgment reinstating Mr. Smith’s murder and attempted murder convictions after the Nevada Supreme Court reversed the state trial court’s amended judgment overturning and vacating the convictions. The panel held that Mr. Smith’s federal petition challenging his conviction and sentence under the Second Amended Judgment was timely filed. The panel explained that “the judgment” in 28 U.S.C. § 2244(d)(1) can only refer to the state judgment pursuant to which the petitioner is being held, and that the statute of limitations must therefore run from the judgment pursuant to which the petitioner is being held. The panel observed that the Supreme Court reached the same conclusion when determining in Magwood v. Patterson, 561 U.S. 320 (2010), how to decide whether a petition challenging a prisoner’s state conviction is second or successive. The panel wrote that it is of no moment that the Second Amended judgment reinstated counts on which Mr. Smith had originally been convicted rather than adding new counts of conviction. http://cdn.ca9.uscourts.gov/datastore/opinions/2017/09/08/15-16967.pdf


United States v. Barragan: The panel affirmed Jesus Barragan’s, Pablo Franco’s, Francisco Gutierrez’s, and Hector Fernandez’s convictions for conspiracy in violation of the Racketeering Influenced Corrupt Organizations Act; affirmed Mr. Barragan’s conviction for drug crimes; affirmed Mr. Barragan’s, Mr. Franco’s, and Mr. Fernandez’s sentences; but vacated Mr. Gutierrez’s sentence and remanded for resentencing.

The panel rejected Mr. Gutierrez’s arguments (1) that suppression of wiretap evidence was required because the affidavit supporting the application failed to show necessity, and (2) that a Franks hearing was required because the affidavit contained false information. The panel held that the district court’s failure to try Mr. Fernandez separately from his co-defendants was not manifestly prejudicial to him. The panel held that the district court did not abuse its discretion in allowing a former Mexican Mafia member to testify on direct examination about his past crimes, nor in finding that the probative value of the evidence was not substantially outweighed by any prejudice. The panel found no error arising from the prosecutor’s blaming, in rebuttal, the defense for bringing up the former Mafia member’s violent past. The panel held that the district court did not abuse its discretion in admitting as lay opinion case agents’ testimony about the meaning of code words used by the conspirators.   The panel held that the district court did not abuse its discretion in admitting tapes of conversations between a confidential informant and alleged conspirators. The panel explained that the informant’s statements on the tapes, which were offered only for context and not for their truth, were not hearsay, and their admission did not offend the Confrontation Clause. The panel held that the government presented sufficient evidence of Mr. Fernandez’s participation in the RICO conspiracy to sustain his conviction.   The panel held that the prosecutor’s remarks in closing argument, emphasizing the violent nature of the defendants’ crimes and repeatedly urging the jury to say, “no more,” were improper because they invited the jury to convict for a nonevidentiary reason: to protect the community against future violence. The panel concluded, however, that the remarks did not have a probable effect on the jury’s verdict in light of the entire record. The panel held that the district court did not abuse its discretion in refusing to give Mr. Fernandez’s requested jury instructions (1) that he could not be convicted of conspiring with a government informant; (2) that his mere purchase of drugs did not establish participation in a conspiracy; and (3) that the government prove he was not a victim of extortion. The panel found no plain error in the district court’s failure to give jurors an explanation for their anonymity.

Affirming Mr. Barragan’s sentence, the panel held (1) that a conviction under Calif. Penal Code § 211—which necessarily involves either generic robbery or generic extortion—was categorically a “crime of violence” for purpose of the career offender guideline in effect at the time of his sentencing; and (2) that, after reviewing the judicially noticeable records of Barragan’s prior conviction under California Health and Safety Code § 11379, a divisible statute, the district court properly concluded that the conviction was for selling a controlled substance offense under the career offender guideline.

The government conceded that the district court erred in calculating Mr. Gutierrez’s sentence as a career offender because his conviction in this case was not for a crime of violence or a controlled substance. The panel agreed, vacating Mr. Gutierrez’s sentence and remanding for resentencing on an open record.

The panel held that in finding certain RICO conspiracy predicate acts attributable to each defendant pursuant to U.S.S.G. § 2E1.1, the district court (1) was permitted to attribute to a defendant predicate acts that the jury verdicts did not so attribute and/or of which a defendant was acquitted or not formally charged; and (2) was permitted to find facts relating to the extent of the conspiracy by a preponderance of the evidence. http://cdn.ca9.uscourts.gov/datastore/opinions/2017/09/08/13-50516.pdf


United States v. Ocampo-Estrada: The panel affirmed a conviction for conspiracy to distribute methamphetamine, vacated the sentence, and remanded for resentencing. The panel held that the district court did not abuse its discretion in denying the defendant’s requested theory-of-defense jury instruction on the buyer-seller exception to conspiracy liability. The panel held that California Health & Safety Code § 11378 is a divisible statute that is susceptible to the modified categorical approach. The panel held that using the modified categorical approach, the government failed to demonstrate that the defendant’s § 11378 conviction was based on a guilty plea to a controlled-substance element that is included within the “felony drug offense” definition set forth in 21 U.S.C. § 802(44). The panel therefore concluded that the defendant’s prior conviction does not qualify as a felony drug offense that would enhance his statutory mandatory minimum sentence under 21 U.S.C. § 841(b)(1)(A).


United States v. Geozos: The panel reversed the district court’s order denying David P. Geozos’s 28 U.S.C. § 2255 motion to vacate, set aside, or correct his sentence, imposed in 2007, at which time the district court determined that Mr. Geozos was an armed career criminal under the Armed Career Criminal Act of 1984 (ACCA) and applied the ACCA’s 15-year mandatory minimum. Before United States v. Johnson, 135 S. Ct. 2551 (2015) (holding that an increased sentence under the ACCA’s residual clause violates due process), and Welch v. United States, 136 S. Ct. 1257 (2016) (holding that Johnson’s rule of constitutional law applies retroactively to cases on collateral review), Mr. Geozos brought an unsuccessful § 2255 motion. He brought a second § 2255 motion, authorized by this court, following the Supreme Court’s decision in Johnson. The panel held that, when, as here, it is unclear whether a sentencing court relied on the residual clause in finding that a defendant qualified as an armed career criminal, but it may have, the defendant’s § 2255 motion “relies on” the new constitutional rule announced in Johnson, and is not subject to the bar on second or successive § 2255 motions. In determining whether the Johnson error is harmless – i.e., whether there are three convictions that support an ACCA enhancement under one of the ACCA clauses that survived Johnson – the panel looked to the substantive law concerning the ACCA’s force clause as it currently stands, not the law as it was at the time of sentencing. Applying the categorical approach, the panel held that none of Mr. Geozos’s three Florida convictions – robbery, armed robbery, use of a firearm in the commission of a felony – is categorically a “violent felony” under the ACCA’s force clause, so the Johnson error at Mr. Geozos’s sentencing was not harmless. The panel remanded with instructions to vacate Mr. Geozos’s sentence, and to direct that Mr. Geozos, who has been in prison longer than the statutory maximum for a non-ACCA conviction, be released from custody immediately.

 

 

CJE Wire: Case Law Updates — 2017 August 11

 


 Washington State Courts


Washington State Supreme Court

State v. Bigsby: In an en banc decision authored by Justice Gonzalez, the Court held that only the Department of Corrections, not the Court had jurisdiction to sanction Brandon Bigsby for his failure to undergo a chemical dependency evaluation after he was released from jail on community custody as ordered by the trial court. The Court found that the Court did not have statutory authority under RCW 9.94B.040 to sanction Mr. Bigsby for sentence violations committed while he was on community custody under the Department’s supervision for a 2014 crime. The Court discussed the legislative history of the Sentencing Reform Act, and after a deep dive into the issues surrounding both the enactment of the SRA and issues that arose after enactment, declared that the statute applies only to crimes committed prior to July 1, 2000. For crimes after that date, the Court held, the Department has sole jurisdiction to impose sanctions. http://www.courts.wa.gov/opinions/pdf/939870.pdf

 


Division I Court of Appeals

State v. Holcomb: In this partially published opinion, the Court found that the charge of interfering with domestic violence, by the plain terms of the statute, requires the State to specify the actual underlying domestic violence crime for the offense in the Information. The Court found that commission of a specific domestic violence crime is an essential element of the interference crime codified at RCW 9A.36.150.5, and that the crime relied upon must be revealed in the Information. Here, Mr. Holcomb was charged with interfering with domestic violence based on an uncharged 4th degree assault claim, along with a charge of assault in the second degree. However, by excluding the 4th degree assault as the underlying domestic violence offense in the information, Mr. Holcomb was led to believe that the second degree assault was the underlying domestic violence offense, and was taken by surprise when the State, at trial, brought in evidence of the fourth degree assault and added that crime to the jury instruction for the interference charge. The Court found that the information did not reasonably apprise Mr. Holcomb of the actual underlying crime that the State alleged that he committed, and thereby failed to inform him of an essential element of the charged interference crime. http://www.courts.wa.gov/opinions/pdf/752456.PDF

 


 Federal Law


Ninth Circuit of Appeals

United States v. Smith: The panel affirmed the district court’s denial of a motion by two qui tam relators to intervene in a criminal forfeiture action so that they could recover a share of the proceeds. The relators worked for the criminal defendant, a licensed podiatrist who was convicted of health care fraud and against whom the government issued a personal forfeiture money judgment in the estimated amount of fraudulent claims paid by victim insurers. The relators filed a qui tam action against the criminal defendant pursuant to the False Claims Act. The panel held that the relators lack standing to intervene in the criminal forfeiture action, as they had no interest in the property when the criminal acts were committed, and they were not qualifying bonafide purchasers for value. The panel rejected the relators’ contention that the “alternate remedy” provisions of the False Claims Act permit a relator to intervene in a criminal action for the purpose of asserting a right to the proceeds of that action. The panel also rejected the relators’ argument that they have standing to intervene in the criminal action as “partial assignees of the government’s claims” under 21 U.S.C. § 853(n). The panel wrote that the relators’ sole statutory remedy is to commence a civil action. The panel held that the district court did not abuse its discretion in denying an evidentiary hearing or in declining to impose sanctions on the government. http://cdn.ca9.uscourts.gov/datastore/opinions/2017/08/10/16-10160.pdf


Greenway v. Ryan: The panel affirmed the district court in an Arizona state prisoner’s appeal arising from his habeas corpus petition challenging his 1989 conviction and death sentence for the killing of a mother and daughter. After considering supplemental briefing regarding the impact on this case of McKinney v. Ryan, 813 F.3d 798 (9th Cir. 2015) (en banc), the panel held that neither the Arizona Supreme Court nor the trial court applied an impermissible causal-nexus test to exclude mitigating evidence. http://cdn.ca9.uscourts.gov/datastore/opinions/2017/08/08/14-15309.pdf

 

 

 

CJE Wire: Case Law Updates — 2017 August 4

 


 Washington State Courts


Washington State Supreme Court

Detention of Marcum: In an opinion authored by Justice Madsen, and joined by Chief Justice Fairhurst and Justices Stephens, Johnson, and Wiggins, the Court found that Mr. Marcum was entitled to a full evidentiary hearing on his petition for unconditional release under 71.09 RCW. The Court overturned the Court of Appeals, which had found that the State met its threshold burden at the show cause hearing to establish that Mr. Marcum continued to be a Sexually Violent Predator (SVP). At the show cause hearing, the State had relied solely on their expert’s evaluation, arguing that this was alone sufficient to meet its statutory burden. The State argued that the conclusions reached in the defense evaluation were irrelevant because they pertained changes in Mr. Marcum’s mental condition that had occurred prior to an LRA revocation a few years prior. The Court held that the State has a two-fold burden at a show cause hearing. First, the State must establish that the detainee is still a sexually violent predator and, second, that conditional release to a less restrictive alternative is not appropriate.  Here, the Court found that the State’s evidence showed that Mr. Marcum is still a sexually violent predator, but failed to establish that conditional release to a less restrictive alternative would be inappropriate. Because the State had not met its burden at the show cause hearing, the Court found that Mr. Marcum is entitled to a full evidentiary hearing.

Concurring, Justice Gordon McCloud agreed that Mr. Marcum is entitled to a full hearing on his petition for unconditional release. Justice Gordon McCloud wrote separately because she disagrees with the majority interpretation of the SVP commitment statutes at issue her. The concurrence argued that the majority holding, that Mr. Marcum is entitled to a hearing on unconditional release because the State’s evidence supported conditional release to a less restrictive alternative (LRA) placement “is illogical, conflicts with the statute’s plain language, and avoids the question squarely presented in this case: whether Marcum’s evidence demonstrated the kind of treatment-based change that entitles a petitioner to a hearing on unconditional release.” The concurrence argued that Mr. Marcum’s evidence did demonstrate this type of treatment-based change, and therefore agreed that he is entitled to a hearing on unconditional release. However, the concurrence would go further, and hold that under RCW 71. 09. 090( 4 )(a), “any petitioner is entitled to a full evidentiary hearing on unconditional release if he presents evidence of “change”-as defined in RCW 71.09.090(4)(b)-since the last proceeding at which his SVP status was actually adjudicated and determined.”

Dissenting, Justice Yu, joined by Justices Owens and Gonzalez, argued that though there is no doubt Mr. Marcum made progress in treatment since his initial commitment, he continues to meet the definition of an SVP, and has not shown that he no longer fits the statutory definition of an SVP. Because he petitioned for unconditional release, the dissent argued that probable cause required evidence of such a change, evidence that the trial court did not find. The dissent argued that the majority was conflating the standards and had ordered a full trial for unconditional release “on the sole basis that Mr. Marcum may qualify for conditional release to an LRA.” http://www.courts.wa.gov/opinions/pdf/925011.pdf


State v. McFarland: In an opinion authored by Justice Stephens and joined by Justices Wiggins, Gordon McCloud, Madsen, Owens, and Johnson, held that firearm-related sentences may be run concurrently as an exceptional mitigated sentence, based on the rationale of In re Pers. Restraint of Mulholland, 161 Wn.2d 322, 166 P.3d 677 (2007). The Court concluded that the statutory analysis supporting Mulholland, which involved sentencing for multiple serious violent felonies under subsection (l)(b) of RCW 9.94A.589, “applies equally to sentencing for multiple firearm-related offenses under subsection (1 )( c ).”

Dissenting, Chief Justice Fairhurst disagreed that the trial court had discretion to impose exceptional concurrent sentences on the firearm charges in this case. The dissent argued that the extension of Mulholland to an offender convicted of the crimes of unlawful possession of a firearm and theft of a firearm is improper, as it does not fully consider the plain language of RCW 9 .41.040(6), the intent of the authors of the HT ACI, and the textual distinctions between RCW 9.41.040(6) and RCW 9.94A.589(1)(c), all of which “mandate the imposition of consecutive sentences between these two crimes.”

Dissenting, Justice Yu, joined by Justice Gonzalez, dissented on the basis that the Court should not have reversed a trial court decision on direct appeal because the record contained no evidence that the decision was made in error or that an exceptional sentence would be factually or legally justified. Instead, the dissent would have Ms. McFarland to take the extra step of seeking collateral review with supporting evidence, as is required of every criminal defendant who cannot demonstrate error based on the record presented on direct appeal. To do otherwise, Justice Yu argued, would be unfair to all other defendants who seek similar results and are required to file collateral review instead. http://www.courts.wa.gov/opinions/pdf/929475.pdf


State v. Olsen: In an opinion authored by Justice Owens, and joined by Justices Wiggins, Yu, Stephens, Madsen, and Gonzalez, found that requiring a probationer convicted of DUI to submit to random UAs for controlled substances implicated the probationer’s privacy interests, but did not violate those interests. The Court noted that probationers have a reduced expectation of privacy because they are “persons whom a court has sentenced to confinement but who are serving their time outside the prison walls.” However, “this diminished expectation of privacy is constitutionally permissible only to the extent ‘necessitated by the legitimate demands of the operation of the parole process.” The Court then examined whether a compelling interest, achieved through narrowly tailored means, supported the intrusion into a DUI probationer’s reduced privacy interests. The Court found that the State had a compelling interest in supervising a probationer to ensure progress toward rehabilitation and compliance with probation conditions, in this case a requirement that Ms. Olson refrain from drug and alcohol consumption, as well as to protect the public from potentially impaired drivers. The Court further found that the random UAs were a narrowly tailored means of achieving this end.

Dissenting, Chief Justice Fairhurst, joined by Justices Gordon McCloud and Johnson, argued that the collection of urine was a violation of the probationer’s private affairs, and could be justified only when supported by a reasonable suspicion that a probation condition had been violated. The dissent argued that this straightforward application of existing law should control the Court’s decision. The dissent argued that the change in the law “diminishes the promise of privacy enshrined in the Washington Constitution and confuses the standard we use to evaluate probationary searches.” http://www.courts.wa.gov/opinions/pdf/933154.pdf

 


Division I Court of Appeals

Detention of Marcum: In an opinion authored by Justice Madsen, and joined by Chief Justice Fairhurst and Justices Stephens, Johnson, and Wiggins, the Court found that Mr. Marcum was entitled to a full evidentiary hearing on his petition for unconditional release under 71.09 RCW. The Court overturned the Court of Appeals, which had found that the State met its threshold burden at the show cause hearing to establish that Mr. Marcum continued to be a Sexually Violent Predator (SVP). At the show cause hearing, the State had relied solely on their expert’s evaluation, arguing that this was alone sufficient to meet its statutory burden. The State argued that the conclusions reached in the defense evaluation were irrelevant because they pertained changes in Mr. Marcum’s mental condition that had occurred prior to an LRA revocation a few years prior. The Court held that the State has a two-fold burden at a show cause hearing. First, the State must establish that the detainee is still a sexually violent predator and, second, that conditional release to a less restrictive alternative is not appropriate.  Here, the Court found that the State’s evidence showed that Mr. Marcum is still a sexually violent predator, but failed to establish that conditional release to a less restrictive alternative would be inappropriate. Because the State had not met its burden at the show cause hearing, the Court found that Mr. Marcum is entitled to a full evidentiary hearing.

Concurring, Justice Gordon McCloud agreed that Mr. Marcum is entitled to a full hearing on his petition for unconditional release. Justice Gordon McCloud wrote separately because she disagrees with the majority interpretation of the SVP commitment statutes at issue her. The concurrence argued that the majority holding, that Mr. Marcum is entitled to a hearing on unconditional release because the State’s evidence supported conditional release to a less restrictive alternative (LRA) placement “is illogical, conflicts with the statute’s plain language, and avoids the question squarely presented in this case: whether Marcum’s evidence demonstrated the kind of treatment-based change that entitles a petitioner to a hearing on unconditional release.” The concurrence argued that Mr. Marcum’s evidence did demonstrate this type of treatment-based change, and therefore agreed that he is entitled to a hearing on unconditional release. However, the concurrence would go further, and hold that under RCW 71. 09. 090( 4 )(a), “any petitioner is entitled to a full evidentiary hearing on unconditional release if he presents evidence of “change”-as defined in RCW 71.09.090(4)(b)-since the last proceeding at which his SVP status was actually adjudicated and determined.”

Dissenting, Justice Yu, joined by Justices Owens and Gonzalez, argued that though there is no doubt Mr. Marcum made progress in treatment since his initial commitment, he continues to meet the definition of an SVP, and has not shown that he no longer fits the statutory definition of an SVP. Because he petitioned for unconditional release, the dissent argued that probable cause required evidence of such a change, evidence that the trial court did not find. The dissent argued that the majority was conflating the standards and had ordered a full trial for unconditional release “on the sole basis that Mr. Marcum may qualify for conditional release to an LRA.” http://www.courts.wa.gov/opinions/pdf/925011.pdf


State v. McFarland: In an opinion authored by Justice Stephens and joined by Justices Wiggins, Gordon McCloud, Madsen, Owens, and Johnson, held that firearm-related sentences may be run concurrently as an exceptional mitigated sentence, based on the rationale of In re Pers. Restraint of Mulholland, 161 Wn.2d 322, 166 P.3d 677 (2007). The Court concluded that the statutory analysis supporting Mulholland, which involved sentencing for multiple serious violent felonies under subsection (l)(b) of RCW 9.94A.589, “applies equally to sentencing for multiple firearm-related offenses under subsection (1 )( c ).”

Dissenting, Chief Justice Fairhurst disagreed that the trial court had discretion to impose exceptional concurrent sentences on the firearm charges in this case. The dissent argued that the extension of Mulholland to an offender convicted of the crimes of unlawful possession of a firearm and theft of a firearm is improper, as it does not fully consider the plain language of RCW 9 .41.040(6), the intent of the authors of the HT ACI, and the textual distinctions between RCW 9.41.040(6) and RCW 9.94A.589(1)(c), all of which “mandate the imposition of consecutive sentences between these two crimes.”

Dissenting, Justice Yu, joined by Justice Gonzalez, dissented on the basis that the Court should not have reversed a trial court decision on direct appeal because the record contained no evidence that the decision was made in error or that an exceptional sentence would be factually or legally justified. Instead, the dissent would have Ms. McFarland to take the extra step of seeking collateral review with supporting evidence, as is required of every criminal defendant who cannot demonstrate error based on the record presented on direct appeal. To do otherwise, Justice Yu argued, would be unfair to all other defendants who seek similar results and are required to file collateral review instead. http://www.courts.wa.gov/opinions/pdf/929475.pdf


State v. Olsen: In an opinion authored by Justice Owens, and joined by Justices Wiggins, Yu, Stephens, Madsen, and Gonzalez, found that requiring a probationer convicted of DUI to submit to random UAs for controlled substances implicated the probationer’s privacy interests, but did not violate those interests. The Court noted that probationers have a reduced expectation of privacy because they are “persons whom a court has sentenced to confinement but who are serving their time outside the prison walls.” However, “this diminished expectation of privacy is constitutionally permissible only to the extent ‘necessitated by the legitimate demands of the operation of the parole process.” The Court then examined whether a compelling interest, achieved through narrowly tailored means, supported the intrusion into a DUI probationer’s reduced privacy interests. The Court found that the State had a compelling interest in supervising a probationer to ensure progress toward rehabilitation and compliance with probation conditions, in this case a requirement that Ms. Olson refrain from drug and alcohol consumption, as well as to protect the public from potentially impaired drivers. The Court further found that the random UAs were a narrowly tailored means of achieving this end.

Dissenting, Chief Justice Fairhurst, joined by Justices Gordon McCloud and Johnson, argued that the collection of urine was a violation of the probationer’s private affairs, and could be justified only when supported by a reasonable suspicion that a probation condition had been violated. The dissent argued that this straightforward application of existing law should control the Court’s decision. The dissent argued that the change in the law “diminishes the promise of privacy enshrined in the Washington Constitution and confuses the standard we use to evaluate probationary searches.” http://www.courts.wa.gov/opinions/pdf/933154.pdf

 


Division III Court of Appeals

State v. Gleim: The Court found that a prosecutor must abide by a plea agreement both at the original sentencing as well as at sentencing under remand. In this case, however, the Court had permitted the trial court to choose between full resentencing and merely adjusting the terms of community custody. The Court found that the prosecutor had not duty to advocate for full resentencing, and in fact may oppose such an action. The Court further found that the prosecutor didn’t breach the plea agreement by advocating for the sentence in the plea agreement, as opposed to simply standing by that proposed sentence. The Court found that the prosecutor did not undermine the sentencing recommendations, and indicated that he would stand by that recommendation. http://www.courts.wa.gov/opinions/pdf/345777_pub.pdf


State v. Jimenez: The Court found that the State, when prosecuting a minor for possession of marijuana, is not required to establish that the marijuana possessed by the minor contained more than .3 percent tetrahydrocannabinol {THC). The Court found that inserting the definition of “marijuana” from RCW 69.50.101, which includes that .3 percent THC threshold, into RCW 69.50.4014 causes the statute to internally clash, as the latter prohibits minors from possessing marijuana regardless of the THC concentration. http://www.courts.wa.gov/opinions/pdf/340694_pub.pdf

 


 Federal Law


Ninth Circuit of Appeals

United States v. Seminole: The panel affirmed the defendant’s convictions for strangling and assaulting his wife, in a case in which the district court compelled the defendant’s wife to testify against him. The panel rejected the defendant’s argument that the Supreme Court in Trammel v. United States, 445 U.S. 40 (1980), effectively overruled the holding in Wyatt v. United States, 362 U.S. 525 (1960), that a court can compel a witness to testify against her spouse when she is the victim of the crime. http://cdn.ca9.uscourts.gov/datastore/opinions/2017/07/31/16-30202.pdf


Clabourne v. Ryan: The panel filed an order denying a petition for panel rehearing and, on behalf of the court, a petition for rehearing en banc in an appeal from the district court’s denial of a 28 U.S.C. § 2254 habeas corpus petition in a death penalty case.

Concurring in the denial of rehearing, Judges Clifton and Ikuta wrote that the panel’s assessment of what the Arizona Supreme Court did in resolving the petitioner’s appeal remained correct.

Dissenting from the denial of rehearing, Judge Berzon wrote that, in light of McKinney v. Ryan, 813 F.3d 798 (9th Cir. 2015) (en banc) (holding that the Supreme Court of Arizona applied an unconstitutional causal nexus test for nonstatutory mitigation), the panel was obligated to rehear the case and grant the habeas petition with regard to the penalty phase of trial. http://cdn.ca9.uscourts.gov/datastore/opinions/2017/08/01/09-99022.pdf


Andrews v. Davis: The panel withdrew an opinion filed August 5, 2015; denied as moot a petition for rehearing and petition for rehearing en banc; and filed a superseding opinion in an appeal and cross-appeal arising from Jesse James Andrews’s conviction and capital sentence for three murders. The panel reversed the district court’s grant of relief on Mr. Andrews’s ineffective-assistance claim that he was prejudiced by his counsel’s failure to investigate and present additional mitigating evidence at the penalty phase of his trial. The panel held that under 28 U.S.C. § 2254(d)(1), the California Supreme Court did not unreasonably apply Supreme Court precedent in concluding that Mr. Andrews was not prejudiced by any deficient performance. The panel dismissed as unripe the sole claim certified by the district court for appeal – that California’s use of its lethal injection protocol to execute Mr. Andrews would violate his Eighth Amendment rights. The panel held that because no new protocol was in place at the time the district court ruled on the claim, the district court erred in entertaining the claim. The panel denied Mr. Andrews’s request to certify for appeal his uncertified claims of unconstitutional delay between sentencing and execution, ineffective assistance of counsel, failure to disclose material exculpatory evidence and false testimony, and destruction of evidence. The panel held that the district court did not abuse its discretion in denying Mr. Andrews’s motion for an evidentiary hearing.

Dissenting in part, Judge Murguia would affirm the district court’s order granting Andrews relief due to ineffective assistance of counsel at the penalty phase of his trial. http://cdn.ca9.uscourts.gov/datastore/opinions/2017/08/01/09-99012.pdf

 

CJE Wire: Case Law Updates — 2017 July 28

 


 Washington State Courts


Division I Court of Appeals

In Re Pers. Restraint of France: The Court denied Mr. France’s personal restraint petition, disagreeing with his argument that three of the five convictions for felony harassment violated double jeopardy, because those three constituted a single course of conduct threatening the same victim. The Court found that the case relied upon by Mr. France, State v. Vidales Morales, 174 Wn. App. 370, 298 P.3d 791 (2013), was distinguishable, as in that case the same threat was made repeatedly at a particular time and place, rendering the unit of prosecution as one, regardless of the number of times the threat was communicated. Conversely, the Court reasoned, Mr. France made different types of threats to cause bodily harm to each of two victims in different times and places. The Court held that under the facts of this case, the unit of prosecution is each threat, and each threat is a violation of the felony harassment statute. http://www.courts.wa.gov/opinions/pdf/745085.pdf

 


Division II Court of Appeals

State v. Hand: The Court affirmed Mr. Hand’s convictions for first degree escape and unlawful possession of a controlled substance. The Court found that while the fact that Mr. Hand was held in jail for 61 days before being admitted to Western State Hospital for competency evaluation and restoration violated his due process rights, dismissal of his case was not required. The Court relied on former RCW 10.77.068(a)(i)(A), which states that a missed performance target for transfer to a mental health facility for competency restoration does not “create any new entitlement or cause of action related to the timeliness of competency evaluations or admission for inpatient restoration services related to competency to proceed or stand trial, nor can it form the basis for . . . a motion to dismiss criminal charges.” Former RCW 10.77.068(1)(a), (5).

The Court further reasoned that under CrR 8.3(b), Mr. Hand must show that the delay in receiving restorative treatment prejudiced his right to a fair trial, which he did not. The Court further found that dismissal was not required for the due process violation apart from CrR 8.3(b). Finally, the Court found that Mr. Hand’s SAG alleging ineffective assistance of counsel were “too vague to consider.” http://www.courts.wa.gov/opinions/pdf/D2%2048481-1-II%20Published%20Opinion.pdf


State v. Boyer: The Court confirmed the juvenile court’s adjudication of guilt in Mr. Boyer’s trial for second degree reckless burning, as well as his manifest injustice disposition at sentencing. The Court found that substantial evidence supported the Court’s finding of fact 5, which described Mr. Boyer’s actions prior to the fire, through eyewitness testimony. The Court further found that counsel’s failure to raise a corpus delicti challenge did not constitute ineffective assistance. The Court held that the corpus delicti for second degree reckless burning is satisfied by independent proof of two elements. The first being the occurrence of a fire or explosion that placed property in danger of destruction, and the second is proof that the fire or explosion occurred as a result of the actions of someone criminally responsible.   Finally, with regard to the manifest injustice disposition, the Court observed that the issue had already been decided by the Court commissioner and the Court denied Mr. Boyer’s motion to modify the commissioner’s ruling. http://www.courts.wa.gov/opinions/pdf/D2%2048763-2-II%20Published%20Opinion.pdf


In Re: Detention of Taylor-Rose: The Court affirmed Mr. Taylor-Rose’s commitment as an SVP, holding that (1) the trial court did not err in instructing the jury that second degree child

molestation is a crime of sexual violence, (2) the State provided sufficient evidence that Mr. Taylor-Rose was likely to engage in predatory acts of sexual violence if not confined to a secure facility based on expert testimony as well as the testimony of his parole officer, who expressed concerns about his ongoing deviant fantasies, (3) the trial court did not err in instructing the jury to determine Mr. Taylor-Rose’s risk level if released “unconditionally” from detention on the SVP petition, (4) the trial court did not err in declining to expressly include “placement conditions” as evidence the jury could consider in determining whether Mr. Taylor-Rose was likely to engage in predatory acts of sexual violence if not confined to a secure facility, and (5) the trial court did not err by declining to give Mr. Taylor-Rose’s proposed instruction about the State’s ability to bring a new SVP petition based on a recent overt act following his release. http://www.courts.wa.gov/opinions/pdf/D2%2047975-3-II%20Published%20Opinion.pdf

 


 Federal Law


Ninth Circuit of Appeals

United States v. Martinez-Lopez: The en banc court affirmed a sentence in a case taken en banc to revisit the divisibility of California drug statutes in light of recent guidance from the United States Supreme Court. The en banc court held that California Health and Safety Code section 11352, which criminalizes a variety of activities related to certain controlled substances identified by reference to other code provisions, is divisible with regard to both its controlled substance requirement and its actus reus requirement. The en banc court held that the district court therefore properly applied the modified categorical approach, and in doing so, correctly found that the defendant pled guilty to selling cocaine, which qualifies as a drug trafficking offense under the federal sentencing guidelines and subjects him to a 16-level enhancement to his base offense level. The en banc court concluded that the sentence imposed, based on a properly calculated guidelines range, is substantively reasonable.

Concurring in part and dissenting in part, “but frustrated with the whole endeavor,” Judge Bybee wrote that California Health and Safety Code § 11352(a) functions as a new form of “wobbler” statute in regards to the actus reus. He wrote that the “demand for certainty” required by Mathis v. United States, 136 S. Ct. 2243 (2016), to conclude that the statute identifies elements rather than means is not satisfied, and that the sentence enhancement therefore cannot stand.

Judge Berzon, joined by Chief Judge Thomas and Judge Reinhardt except as to Part IV, concurred in part and dissented in part. Judge Berzon dissented as to the majority’s decision on the actus reus component of § 11352(a). After applying all three steps outlined in Mathis, she concluded that it is most likely that the enumerated actions are different means of committing the offense stated in § 11352(a), not alternative elements, but there are some contrary indications. She would certify the question to the California Supreme Court. She concurred with respect to the statute’s controlled substance component, with the caveat that there have been changes in related California legal principles in recent years that may have undermined the assumptions in In re Adams, 536 P.2d 473 (Cal. 1975), as to whether a specific controlled substance is an element that must be proven beyond a reasonable doubt to a jury or admitted by the defendant. Judge Reinhardt, joined by Chief Judge Thomas, dissented, joining Judge Berzon’s opinion except as to Part IV. He would certify to the California Supreme Court the question of the divisibility of the controlled substance provision as well as of the actus reus provision.   http://cdn.ca9.uscourts.gov/datastore/opinions/2017/07/28/14-50014.pdf

CJE Wire: Case Law Updates — 2017 July 21

 


 Washington State Courts


Washington State Supreme Court

State v. Weyand: In a decision authored by Justice Madsen and joined by Chief Justice Fairhurst and Justices Stephens, Owens, Wiggins, Johnson, and Gordon McCloud, the Court overturned Mr. Weyand’s conviction for possession of a controlled substance based on evidence obtained during a Terry stop. The Court found that the facts in this case, that Mr. Weyand was seen entering and exiting a house where past drug activity had been confirmed and looked up and down the street before getting into his car and driving off, did not provide sufficient facts to justify a reasonable suspicion that Mr. Weyand was involved in criminal activity. The Court stressed that in evaluating facts known at the inception of a Terry stop, “it is imperative that the facts be judged against an objective standard: would the facts available to the officer at the moment of the seizure or the search ‘warrant a man of reasonable caution in the belief that the action taken was appropriate?” The Court found that the officer did not observe current activity in this case that would lead a reasonable observer to believe that criminal activity was taking place. The Court based its decision largely on recent rulings in State v. Fuentes and State v. Sandoz, upholding Fuentes on its facts.

Concurring, Justice Gonzalez, joined by Justice Yu agreed with the reasoning and result in the instant matter, but wrote separately to disagree with the Court’s failure to overturn Fuentes. The concurrence argued that the sole distinguishing fact in Fuentes was that Ms. Fuentes was observed carrying a filled bag into a drug house and leaving with a less full bag shortly thereafter. The concurrence argued that the mere diminished size of the bag, relied upon by the Fuentes majority was insufficient to find individualized suspicion for a traffic stop after officers followed Ms. Fuentes all the way home. http://www.courts.wa.gov/opinions/pdf/933774.pdf


State v. Lile: In an opinion authored by the Chief Justice and joined by Justices Johnson, Wiggins, Gonzalez, Owens, and Yu, the Court affirmed Travis Lee Lile’s convictions for multiple assaults and resisting arrest. On appeal, Mr. Lile argued that the trial court had improperly denying a timely affidavit of prejudice filed in accordance with RCW 4.12.050. Mr. Liles further cited as error the trial court’s exclusion of evidence impeaching victim Christopher Rowles’ purportedly nonviolent nature. The Court found that the trial court, prior to the time the affidavit was filed, had ruled on a motion for continuance, and that this ruling was discretionary in nature, rendering the affidavit untimely. The Court reversed the finding of the Court of Appeals that the ruling was not discretionary, but also not harmless, holding that if prejudice is established it is always, absent extraordinary circumstances, harmful prejudice, and a trial court’s refusal to grant a timely motion for change of judge is reversible error. With regard to the impeachment evidence, the Court found it was reasonable for the trial court to find that the proffered impeachment evidence was only tangentially related to the issue at bar and insufficiently relevant to impeach Mr. Rowles.

Concurring in the result only, Justice Madsen argued that the “distinction between discretionary and nondiscretionary rulings is a false dichotomy.” Instead, the concurrence argued that an affidavit of prejudice should be made “prior to the judge ruling on a matter that indicates how the judge may rule in the case-for that is the type of “discretion” that RCW 4.12.050(1) concerns.” In this case, the trial court’s ruling on an unopposed motion for continuance should not have been seen as discretionary because it did not indicate how he might rule in the case. However, because the trial was ultimately heard by a different judge, the concurrence argued that the error was harmless. The concurrence would further have found that the limitations placed on the cross examination of Mr. Rowles were an abuse of discretion, but argued that this, too, was harmless error.

Concurring, Justice Gordon McCloud, joined by Justice Stephens, agreed that the trial court’s ruling on the continuance was discretionary, thus rendering the affidavit of prejudice untimely. However, the concurrence argued that the impeachment evidence that Mr. Lile sought to bring in against Mr. Rowles was relevant and the trial court’s exclusion of this evidence was a violation of Mr. Lile’s confrontation clause rights. However, the error was harmless. http://www.courts.wa.gov/opinions/pdf/930350.pdf

 


Division I Court of Appeals

State v. Jefferson: The Court upheld Mr. Jefferson’s convictions for attempted first degree murder, first degree assault, and unlawful possession of a firearm. The Court found no error in any of the ten issues Mr. Jefferson raised on appeal, including: (1) the trial court erred in denying his Batson’ challenge after the State used a peremptory challenge to strike the only African American venireperson, (2) the trial court violated the appearance of fairness doctrine, (3) the trial court erred in denying a mistrial for jury misconduct, (4) the trial court erred in admitting gang evidence, (5) the trial court erred in excluding evidence and testimony from one of Jefferson’s witnesses, (6) prosecutorial misconduct, (7) that insufficient evidence supported the convictions, (8) the “to convict” instruction was inadequate, (9) ineffective counsel, and (10) cumulative error. With regard to the Batson challenge, the Court found that the State provided an acceptable race neutral explanation for striking the juror. However, the Court was concerned with the State’s primary argument on appeal, which appeared to be that the appellate court should affirm the trial court because of the fact that “(1) the case was being tried before an African American judge, (2) the prosecutor was African American. . . , (3) the defendant was African American, and (4) the defense attorney was a Caucasian woman.” The Court found that the race makeup of non-jurors in the court room has no bearing on a Batson analysis, as the Court’s focus is on the jurors. The Court similarly found the remainder of Mr. Jefferson’s claimed errors on appeal lacked merit. http://www.courts.wa.gov/opinions/pdf/760114.pdf

 


Division III Court of Appeals

State v. Buttolph: The Court affirmed Tylor Buttolph’s conviction for escape from community custody. The Court found that the trial court did not err in refusing to provide his proffered jury instruction, which equated the willfulness with purpose, instead giving an instruction equating willfulness with knowledge. The Court reasoned that the Washington Criminal Code equated willfulness with knowledge as to the material elements of the offence, and that this definition was in place at the time that the statute under which Mr. Buttolph was charged was enacted. The Court concluded that had the legislature intended a greater mens rea requirement, it would have so stated in the statute. http://www.courts.wa.gov/opinions/pdf/345297_pub.pdf

 


 Federal Law


No Federal opinions of note were decided in the last week.