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