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.

 

CJE Wire: Case Law Updates — 2017 July 14

 


 Washington State Courts


Washington State Supreme Court

State v. Johnson: In an en banc decision authored by Justice Stephens, the Court held that its decision in State v. Hickman, 135 Wn.2d 97, 954 P.2d 900 (1998), remains good law and was not superseded by the recent SCOTUS decision in Musacchio v. United States, _U.S._, 136 S. Ct. 709, 193 L. Ed. 2d 639 (2016). Under Hickman, the State must establish all elements it agrees to include in a to convict instruction, even if not required by statute. However, in Musacchio, the Supreme Court rejected such a “law of the case” argument and held that due process requires only that evidentiary sufficiency claims “be assessed against the elements of the charged crime, not against the erroneously heightened command in the jury instruction.” 136 S. Ct. at 715. The Court reasoned that the state “law of the case” doctrine “does not rest on federal due process principles,” but has developed through the common law and state procedural rules, and remains intact following Musacchio. The Court found that the State did not demonstrate that its “law of the case” doctrine is incorrect and harmful, or that its legal underpinnings had been eroded. Then, applying the Hickman framework to the instant matter, the Court held that the State was required to prove that Mr. Johnson specifically intended to steal an access device, as alleged in the to-convict instruction in this case. The Court found sufficient evidence supporting the additional element and affirmed the conviction. http://www.courts.wa.gov/opinions/pdf/934533.pdf

 

 


Division I Court of Appeals

In re: Detention of S.E.: In this partially published decision, the Court held that the Washington Constitution does not require a jury to be seated to determine the issues presented in a probable cause hearing commenced pursuant to RCW 71.05.240 for involuntary commitment, whether short or long term. http://www.courts.wa.gov/opinions/pdf/749170.pdf

 

 


 Federal Law


Ninth Circuit Court of Appeals

Alfaro v. Johnson: The panel reversed the district court’s grant of Maria Alfaro’s habeas corpus relief on her claim, based on Jones v. Chappell, 31 F. Supp. 3d (C.D. Cal. 2014), rev’d sub nom., Jones v. Davis, 806 F.3d 538, 541 (9th Cir. 2015), that California’s post-conviction system for administering the death penalty violates the Eighth Amendment’s prohibition against cruel and unusual punishment. The panel held that Ms. Alfaro’s claim was barred by her failure to exhaust available state court remedies, and was untimely under Fed. R. Crim. P. 15(c). The panel held that Ms. Alfaro is not excused from her failure to exhaust the claim. The panel wrote that even assuming futility persists as a potential exception to AEDPA’s exhaustion requirement, it does not excuse Ms. Alfaro’s failure to exhaust her state court remedies in this instance in which the California Supreme Court has not definitively rejected the claim she now raises in her habeas petition. The panel rejected Ms. Alfaro’s argument that her failure to exhaust should be excused because requiring her to return to state court would compound the delay she has already suffered. The panel explained that Ms. Alfaro will not be prejudiced by application of the exhaustion requirement because so long as her petition is pending in state court, the constitutional violation of which she complains (unconstitutional imposition of the death penalty) will not take place.   The panel also held that neither relation back under Rule 15 nor the emergence of new facts renders Ms. Alfaro’s claim, which was filed as part of her Third Amended Petition more than a year after her conviction became final, timely. Because Ms. Alfaro has not previously alleged facts regarding systemic delay in California’s post-conviction death penalty process, the panel held that her claim does not relate back to earlier, timely-filed claims. The panel concluded that the effort required to aggregate the publicly available information upon which her instant claim relies rendered that information discoverable through the exercise of due diligence.   http://cdn.ca9.uscourts.gov/datastore/opinions/2017/07/14/15-55337.pdf


United States v. Chavas-Cuevas: The panel affirmed a conviction and sentence for being a removed person found unlawfully in the United States.   The panel wrote that it need not resolve the question whether the district court erred by not expressly accepting the defendant’s guilty plea, because even if there was an error, it was not plain. The panel observed that it is unclear how the district court’s failure to accept expressly the defendant’s plea affected his substantive rights or could be sufficiently grave to constitute structural error, which would require automatic reversal, since the defendant’s guilty plea was impliedly accepted by the district court after reviewing relevant materials and personally interacting with the defendant.   The panel held that the district court properly relied on United States v. Becerril-Lopez, 541 F.3d 881 (9th Cir. 2008), to impose a 16-level crime-of-violence enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(ii) based on the defendant’s prior robbery conviction under Calif. Penal Code § 211. The panel rejected the defendant’s contention that Becerril-Lopez, which held that robbery under § 211 was categorically a crime of violence under U.S.S.G. § 2L1.2(b), is no longer good law following the Supreme Court’s decisions in Decamps v. United States, 133 S. Ct. 2276 (2013), and Mathis v. United States, 136 S. Ct. 2243 (2016).  http://cdn.ca9.uscourts.gov/datastore/opinions/2017/07/10/15-50480.pdf

 

 

King County Council Appoints 3 to District Court Vacancies

On Monday, May 9, 2016, the King County Council has made three District Court appointments to fill vacancies that have recently occurred:

Southwest Division Election District
Laurel Gibson was appointed to the vacancy created by the retirement of Judge Victoria Seitz.

West Division Election District
Lisa Paglisotti and Gregg Hirakawa were appointed to the vacancies created by the retirement of Judge Eileen Kato and the appointment of Judge Johanna Bender to the King County Superior Court.

All three of these newly appointed judges will be required to stand for election this November. The filing period for this election ended on Friday, May 20. Brian Todd filed against Judge Laurel Gibson in the Southwest Division; Judges Paglisotti and Hirakawa will run unopposed.

CJE was very active in this appointment process and monitored all stages. Two of the three positions were filled with candidates CJE recommended to the King County Council’s Law & Justice Committee.

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