Case Summaries

Criminal Law And Procedure

[12/14] Blakely v. Wards
A prisoner’s motion for reconsideration of a denial of his attempt to proceed in forma pauperis, claiming that his prior actions dismissed as “frivolous, malicious, or failing to state a claim” cannot count as strikes under section 1915(g) because the dismissals occurred at summary judgment, is denied where: 1) the fact that an action was dismissed as frivolous, malicious, or failing to state a claim, and not the case’s procedural posture at dismissal, determines whether the dismissal constitutes a strike under section 1915(g); and 2) petitioner has had more than three prior cases dismissed expressly as frivolous, malicious, or failing to state a claim.

[12/14] US v. Carpio-Leon
A Mexican citizen’s conviction for possessing firearms while being illegally or unlawfully in the United States is affirmed where: 1) the scope of the Second Amendment does not extend to provide protection to illegal aliens, because illegal aliens are not law-abiding members of the political community and aliens who have entered the United States unlawfully have no more rights under the Second Amendment than do aliens outside of the United States seeking admittance; and 2) defendant’s Fifth Amendment challenge fails because prohibiting illegal aliens, as a class, from possessing firearms is rationally related to Congress’s legitimate interest in public safety.

[12/14] US v. Powers
Defendant’s convictions for conspiracy to defraud the United States by impeding the functions of the Internal Revenue Service and mail fraud is affirmed where: 1) district court properly refused to give advice-of-counsel instruction where this defense is not available to one who omits to disclose material information to advisers or dictates imprudent outcomes to advisers; and 2) defendants’ claim that various witnesses were allowed to testify as to the ultimate issues, invading the role of the jury, is without merit.

[12/14] US v. Burgos
Defendant’s conviction for conspiring to distribute and to possess with intent to distribute marijuana is reversed and remanded for an acquittal where the government did not meet its burden of proof with respect to the second element of the charged conspiracy.

[12/13] US v. Torres-Miguel
In defendant’s conviction for illegal reentry by an aggravated felon, district court’s imposition of a 51-months’ imprisonment on the ground that defendant’s previous state conviction for a criminal threat categorically constituted a prior crime of violence, is vacated and remanded where section 422(a) is not categorically a crime of violence as defined in Guidelines section 2L1.2 because contrary to the 9th Circuit’s holding, the plain language of section 422(a) does not contain an element requiring the use or threatened use of physical force.

[12/13] US v. Hilton
Defendants’ convictions on charges involving a scheme to defraud one of the defendant’s employer is: 1) vacated as to the convictions for identity theft and aggravated identity theft for two of the defendants because the identity theft statutes are fatally ambiguous regarding whether they include as a criminal offense the unauthorized use of the means of identification of a corporation; 2) affirmed as to the defendants’ convictions for mail fraud; and 3) affirmed as to the convictions for mail fraud affecting a financial institution.

[12/13] People v. Jasso
Defendant’s conviction for attempted murder and other charges arising from his shooting at people through a window at a McDonald’s restaurant is affirmed where: 1) defendant’s claims of prosecutorial conduct are without merit; 2) trial court did not err in admitting ballistic evidence and refusing the jury to visit the crime scene; 3) evidence was sufficient for the jury to find true the gang benefit allegation and to convict defendant of street terrorism; and 4) defendant’s claim that his due process right to a fair trial was violated because of the cumulative effect of the trial court’s errors and the prosecutor’s misconduct during closing argument is without merit.

[12/13] US v. Hamilton
A former state legislator’s sentence and conviction of a federal program bribery and extortion under color of official right, are affirmed where: 1) the district court’s conclusion that the emails were not subject to the marital communications privilege was not an abuse of discretion; 2) defendant’s challenge to the sufficiency of the evidence is without merit; 3) district court did not abuse its discretion in refusing to instruct the jury as to a gratuity; and 4) defendant has not demonstrated that district court’s application of a fourteen-level sentencing enhancement was plain error or affected his substantial rights.

[12/12] US v. Hargrove
In defendant’s conviction for his involvement in a dogfighting activity, in violation of the Animal Welfare Act, 7 U.S.C. Section 2156, district court’s imposition of a 60-month sentence is affirmed where: 1) the court made abundantly clear that even if defendant’s sentencing guideline rage was 0-6 months, it believed a 60-month sentence was necessary to accomplish the objectives of sentencing; and 2) it was not unreasonable for the court to exercise its discretion in imposing the sentence that it did.

[12/12] People v. Milstein
Defendant’s conviction for conspiracy to defraud by false pretenses or false promises in violation of Penal Code Section 182(a)(4), is reversed and remanded where: 1) the three-year statute of limitations applies to the charged offense; and 2) because it is undisputed that the prosecution of the offense was not commenced within three years of the last overt act in furtherance of the conspiracy, it was time-barred.

[12/12] People v. Velasquez
In a conviction of a defendant for numerous offenses for firing a handgun at an occupied residence, the four assault with a firearm convictions are reversed because of a prejudicial error instructions.

[12/12] People v. Moore
In defendant’s conviction for attempted second degree robbery and misdemeanor vandalism, trial court’s imposition of a conditional probation is affirmed where the probation condition prohibiting defendant from owning, possessing, or using dangerous or deadly weapons is not unconstitutionally vague, and need not be modified to include a knowledge requirement.

[12/11] US v. Infante
Defendant’s conviction for drug-related offenses is affirmed where: 1) because the firefighters’ warrantless entry into defendant’s residence and their search of his cellar fall within the emergency exception to the warrant requirement, the district court did not err in denying defendant’s motion to suppress evidence that the firefighters observed in plain view; and 2) the district court did not err in denying defendant’s motion to suppress the statements he made to investigators at the hospital because he was not in custody during the interviews.

[12/11] Gutierrez v. Smith
In appeal from the denial of defendant’s writ of habeas corpus following conviction for depraved indifference murder, the judgment is affirmed, where: 1) the defendant’s claim was preserved for review and not procedurally barred because there was a fundamental shift in New York’s interpretation of its depraved indifference murder statute between the time of defendant’s trial and when his conviction became final; but 2) defendant’s legal insufficiency claim fails on the merits, because a reasonable jury could have found that the evidence at trial did establish the necessary elements of depraved indifference murder; and 3) certification is not appropriate in this matter.

[12/11] In re: Grand Jury
In an ongoing grand jury investigation into an alleged criminal tax scheme, district court’s grant of government’s motion to enforce subpoenas for documents and testimony to the corporation’s counsels based in part on the crime-fraud exception is affirmed where: 1) the corporation has standing to contest the grand jury subpoenas because it claims privilege in the sought-after documents and testimony; 2) John Doe 1 and John Doe 2 lack standing because they are not privilege holders and do not have any other cognizable interest in the documents or testimony; 3) the corporation’s appeal from the March Order is dismissed for lack of jurisdiction because it may travel the well-worn contempt path to jurisdiction; and 4) the district court correctly applied the crime-fraud exception to deny the corporation a privilege protection over testimony and two documents sought from its former in-house counsel, and determined that three documents sought from those counsel do not qualify as privileged.

[12/11] People v. Thomas
Defendants’ convictions and sentences for murder and other gang-related offenses are: 1) affirmed as to the convictions; 2) reversed and remanded as to one of the defendant’s sentence of 196 years to life in light of Miller; and 3) reversed as to the three sentence enhancements imposed upon the other defendant for correction of errors in the sentencing minutes and abstracts of judgment.

[12/11] People v. Peterson
Trial court’s order vacating defendant’s guilty plea agreement to second degree murder in exchange for her testimony at the trial of her codefendant is affirmed, and defendant’s various claims are rejected, including: 1) the trial court applied the wrong standard for review and the ruling is not supported by substantial evidence; 2) judicial estoppel bars the revocation of the plea agreement; 3) the trial court erred in invalidating the plea agreement after the prosecution reaped the benefit of its bargain; and 4) the ruling violated defendant’s substantive due process rights.

[12/11] Loftis v. Almager
District court’s denial of defendant’s request for habeas relief challenging his no contest plea to second degree murder is affirmed where: 1) although Federal Rule of Criminal Procedure 11 and its state analogs require that a plea be supported by a factual basis, the state trial court’s failure to find one for defendant’s plea, unaccompanied by protestations of innocence, did not present a constitutional issue cognizable under Section 2254; and 2) defendant’s plea was not made under Alford or a state analog that would trigger a factual basis requirement.

[12/10] People v. Conley
Defendant’s conviction for driving under the influence and related offenses is affirmed where: 1) in light of the brief intrusion on defendant’s liberty and the clear threat to defendant’s and the public’s safety posed by an apparently intoxicated man in the middle of a public road, officer’s directive was reasonable and did not constitute an illegal detention; 2) probable cause supporting the arrest was based on defendant’s condition, preliminary alcohol screening test results, his admission that he drove the vehicle, and the fact that the vehicle was running and partially obstructing the road; 3) defendant has not carried his burden of proving prejudice on his ineffective assistance of counsel claim; and 4) defendant’s contention that evidence was insufficient to support his convictions because no one saw him driving is without merit.

[12/10] People v. Siackasorn
In a defendant’s conviction for first degree special-circumstance murder of a police officer, committed when defendant was 16 years old, trial court’s imposition of a sentence of life without the possibility of parole (LWOP) is reversed and remanded where section 190.5(b) has been interpreted, in California appellate court decisions issued before Miller, as making LWOP the “generally mandatory” presumptive penalty choice, and such a presumptive punishment does not constitutionally square with Miller.

[12/07] US v. Daley
In appeal from denial of defendant’s motion to dismiss the indictment for illegal re-entry after deportation and subsequent conviction, judgment is affirmed, where the district court properly considered defendant’s completed criminal conduct in making the discretionary determination that entry of the removal order against defendant in absentia was not fundamentally unfair because there was no reasonable probability that defendant would have obtained relief had he received notice of the removal proceeding and been present.

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