Despite the COVID19 Pandemic and major shutdowns, Appellate Courts have been in full-ish swing and have handed down some interesting decisions in the Criminal arena. There are actually more than I can write about in this issue, so I have selected two to highlight, and the others I will save for next month.
Sandbagging the Defense Requires Reversal
In People v. Hughes (2020) 50 Cal. App. 5th 257, the Defendant hit another vehicle whose driver failed to yield to him, and the three people in the car he hit died from their injuries. The Defendant was charged and convicted of all three counts of 2nd degree murder at trial (he had suffered a prior DUI conviction). The critical issue at trial was whether the Defendant’s drinking was a substantial factor in causing the accident. The police and highway patrol both concluded the deceased driver was the primary cause of the accident, and their testimony suggested Hughes’s speed and drinking may have played a role, but that the physical evidence suggested he was not driving at an unsafe speed and he responded appropriately in attempting to avoid the collision.
So how was Hughes charged with 2nd Degree Murder instead of what presumably should have been a misdemeanor DUI charge? Maybe it had something to do with the fact that he had a prior conviction or maybe it had to do with a plan to gain a murder conviction at whatever cost. During trial, after the jury heard testimony that the decedent was at fault which is the discovery that had been provided to Defense Counsel, the prosecution called as an expert a second member of the highway patrol team which investigated the accident. The expert disagreed with his colleagues and offered new expert testimony that the accident would not have happened if the Defendant had been driving at the speed limit and had not been intoxicated. This new expert testimony had not been turned over to the Defense, thus the sandbagging.
Defense objected to this testimony in a timely fashion and the trial court allowed the prosecution to continue with questioning and the defense was left to cross-examine the expert without an opportunity to prepare adequately. Defense Counsel’s motion for a mistrial was denied and the expert’s new testimony on causation was uncontradicted. Defendant was convicted and sentenced to three consecutive 15-year-to-life terms.
“When a party fails to comply with the statutory disclosure requirements, the trial court ‘may make any order necessary’ to enforce those provisions, including, but not limited to, ‘[initiating] contempt proceedings, delaying or prohibiting the testimony of a witness or the presentation of real evidence, continu[ing] the matter, or any other lawful order.’” (§ 1054.5, subd. (b); see People v. Ayala (2000) 23 Cal.4th 225, 299. [“‘[A] trial court may, in the exercise of its discretion, “consider a wide range of sanctions” in response to [a] violation of a discovery order’”].) In this case, given the technical nature of the testimony and the fact that it concerned what all parties rightly consider the critical factual issue concerning Hughes’s guilt or innocence on murder charges, the court should have continued the trial immediately and allowed defense counsel to do what it indicated later it wanted to do—find and consult with an expert capable of responding to Sergeant Berns’ new testimony and calculations.
The Court of Appeal concluded that the trial court abused its discretion in failing to grant Hughes a mistrial and the convictions were reversed.
Odor of Marijuana and marijuana in plain sight did not justify a search of vehicle
In People v. Johnson, (2020) 50 Cal.App 5th 620, the Court of Appeal reversed a trial court decision denying Defendant’s Penal Code Section 1538.5 motion after the Defendant plead no contest to being a felon in possession of a firearm.
On appeal, the Court found that the U.S. Const., 4th Amend., required suppression of evidence from a warrantless search of defendant’s vehicle because probable cause for the search was not provided by the totality of the circumstances, including that the parked car was missing a registration tag and had an expired registration, the odor of marijuana was emanating from the car, the officer observed a tied baggie containing a couple grams of marijuana in the car’s center console, and defendant’s resisting the officers. To violate Health & Saf. Code, § 11362.3, subd. (a)(4), a container or package must be open when found in the car, and not merely have the potential to be opened or have previously been opened; -The odor of marijuana alone did not provide an inference that the car contained contraband because individuals over 21 can now lawfully possess and transport up to 28.5 grams of marijuana.
Defendant was parked on the side of the road when two police officers approached his vehicle to investigate his car’s missing registration tag after activating their overhead lights. The officer’s asked the Defendant to get out of his vehicle to speak with him which he complied but he refused to return to his vehicle when asked. The Defendant was agitated, yelling at an officer and asking him why he had to get back in the car. The officer then grabbed defendant’s arm to gain control over him and he tensed up and pulled away and continued to pull away as the officers handcuffed him and placed him in their patrol vehicle.
The officers then returned to the defendant’s car to perform what they referred to as a tow inventory search because the car’s registration was expired. They could smell the odor of marijuana when they approached the vehicle and found a knotted plastic bag in the center console containing possibly a couple of grams of marijuana. The officer then continued the search as a probable cause search of the vehicle for more contraband and found a loaded handgun behind a plastic panel in the rear cargo area of the car.
The Defendant brought a motion to suppress evidence at his Preliminary Hearing and a renewed motion to suppress after he was bound over, both were denied.
“Finally, the People contend the circumstances surrounding the search, i.e., defendant’s resistance, agitation, and attempts to draw the officers away from the car, the ‘long-expired registration,’ and the ‘related anomalous circumstances of the license plate and the vehicle’—combined with the presence of the marijuana establish probable cause. We are not persuaded. While defendant’s actions justified his arrest for resisting an officer, his response did not provide probable cause to search the car for contraband or evidence of a crime…We further fail to see a link between the car’s registration and tag violation and the likelihood of finding contraband in the car.” Although the Court did find the arrest valid, that did not give Law Enforcement reason to suspect there would be any contraband in the vehicle. While the smell of Marijuana by itself and certainly possession of Marijuana was a crime not too long ago, it no longer is and it is no longer justification for a further search in small amounts like there was in this case.
“In summary, the facts in this case comprised of a parked car missing a registration tag and having an expired registration, the odor of marijuana emanating from the car, the observation of a tied baggie containing “a couple grams” of marijuana in the car’s center console, and defendant’s actions outside the car in resisting the officers. The totality of these circumstances did not amount to a ‘fair probability that contraband or evidence of a crime’ would be found in defendant’s car.”
Of note is that the initial detention is not really discussed and presumably was not challenged. There may have been justification for the initial detention based on being parked in a public place with expired tags. In any case, the evidence of the gun was suppressed