Criminal Law Library Blog
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July 20-24. 2009.
U.S. 1st Circuit Court of Appeals, July 22, 2009 US v. Allen, No. 08-1451
Conviction for being a felon in possession of a firearm is affirmed where: 1) the district court did not abuse its discretion in failing to conduct an evidentiary hearing before denying defendant’s motion to suppress as defendant failed to raise a genuine issue of material fact regarding the plain view analysis or the existence of probable cause; 2) the court did not abuse of discretion by finding without an evidentiary hearing that his statements to the police were voluntary, as there was an affidavit and a signed Miranda acknowledgment, and defendant’s assertions were unsupported by any references to specific statements he sought to suppress; and 3) the court did not abuse its discretion in denying defendant’s motion for reconsideration as defendant’s affidavit in support of his motion did not respond to the government’s plain view assertions or specify the alleged Miranda violations. Read more…
U.S. 1st Circuit Court of Appeals, July 23, 2009 US v. Rodriguez-Barrios, No. 07-1854
Conviction for committing a carjacking resulting in death is affirmed where: 1) the court properly denied defendant’s motion for acquittal as the evidence was sufficient for a reasonable jury to conclude that defendant had the intent to kill or seriously harm the victim when he took control of her car; 2) the court did not err in excluding tape recordings of the victim as the recordings did not contradict the victim’s hearsay allegations of abuse; 3) the court did not abuse its discretion in refusing to allow defendant to present expert witness testimony regarding the reliability of eyewitness identification; 4) the court did not abuse its discretion denying defendant’s motion for a mistrial as the brief mention of the possibility of a polygraph examination did not warrant a mistrial; and 5) the court erroneously admitted certain statements made by the victim’s friend and mother, but the error was harmless. Read more..! .
U.S. 1st Circuit Court of Appeals, July 23, 2009 US v. Wallace, No. 07-1884 Sentence for armed robbery and other crimes is affirmed where: 1) the district court properly applied the mandate rule and refused to consider defendant’s objection to sentencing enhancement for obstruction of justice based on his perjury as defendant failed to challenge the enhancement in his first appeal and it became the law of the case; 2) the court properly applied the mandate rule to defendant’s objection to the stolen weapons enhancement; 3) defendant’s claim that his use of a dangerous weapon during the robbery was an improper basis for an upward departure and his claim that court’s decision to depart upwardly based on defendant’s disruption of government functions are both barred by the law of the case doctrine; 4) the court did not err in imposing a two-level increase for extreme psychological injury; 5) the court did not abuse its discretion in imposing an upward departure to his sentencing level based on his criminal history; and 6) defendant’s sentence was reaso! nable
U.S. 1st Circuit Court of Appeals, July 24, 2009 US v. Ayala-Garcia, No. 07-2129 Conviction for drug and firearms crimes is vacated where: 1) the evidence was sufficient for a rational jury to find beyond a reasonable doubt that one defendant was guilty of knowing possession of a firearm with an obliterated serial number; 2) the evidence was sufficient to support another defendant’s convictions for drug crimes and possession of a firearm in furtherance of a drug trafficking crime, but was insufficient to prove the scienter requirement of his conviction for possession of a firearm in furtherance of a drug trafficking crime; and 3) the prosecutor’s challenged statements constituted misconduct, and the improper comments so poisoned the well that the trial’s outcome was likely affected and a new trial is warranted on the convicted offenses. .
U.S. 2nd Circuit Court of Appeals, July 21, 2009 US v. Amico, No. 08-1338 Sentence for participating in a continuing financial crimes enterprise and conspiracy to commit bank and mortgage fraud is affirmed where the 2001 amendment to the gross receipts provision of the United States Sentencing Guidelines is a substantive change to an unambiguous provision and therefore does not apply retroactively. .
U.S. 3rd Circuit Court of Appeals, July 23, 2009 US v. Nestor, No. 08-2535 Conviction for attempting to persuade, induce, entice, or coerce a child to engage in illegal sexual activity is affirmed where defendant violated 18 U.S.C. sec. 2422(b) despite not communicating directly with a child or with someone whom he believed was a child by using an adult intermediary.
U.S. 3rd Circuit Court of Appeals, July 23, 2009 US v. Dillon, No. 08-3397 Sentence for drug crimes is affirmed where the district court did not err in denying defendant’s motion for a reduction below his amended Guidelines range sentence as the court’s decision in Booker does not apply to the size of a sentence reduction that may be granted under 18 U.S.C. sec. 3582(c)(2).
U.S. 4th Circuit Court of Appeals, July 20, 2009 US v. Ricks, No. 07-5127 Defendant’s firearm possession conviction is reversed where the district court erred in denying defendant’s proposed justification instruction because a reasonable trier of fact could have found that defendant’s possession was justified as self-defense.
U.S. 4th Circuit Court of Appeals, July 21, 2009 US v. Cameron, No. 08-4277 Defendant’s counterfeiting conviction is affirmed where the evidence created a more than reasonable inference that defendant manufactured the counterfeit bills found in his residence. However, his sentence is vacated and remanded where the government failed to prove that defendant was an organizer or leader in the conspiracy.
U.S. 5th Circuit Court of Appeals, July 21, 2009 Burton v. Terrell, No. 07-30842 In a manslaughter prosecution, denial of petitioner’s habeas petition is affirmed where a trial court’s failure to inform the defendant of the maximum possible sentence does not invariably lead to constitutional error if he was aware of the maximum sentence.
U.S. 5th Circuit Court of Appeals, July 21, 2009 US v. Whaley, No. 08-10951 Defendant’s conviction for failure to register in accordance with the Sex Offender Registration and Notification Act (SORNA) is affirmed where SORNA does not exceed Congress’s powers under the Commerce Clause because it forbids sex offenders from using the channels of interstate commerce to evade their registration requirements.
U.S. 5th Circuit Court of Appeals, July 21, 2009 US v. Miller, No. 08-50409 Defendant’s conviction for assault against federal officers is affirmed where 1) the government produced sufficient evidence that defendant intended to assault federal agents by driving his large vehicle very quickly in their direction; and 2) the district court properly excluded evidence of defendant’s injuries on relevance grounds.
U.S. 6th Circuit Court of Appeals, July 21, 2009 US v. Shafer, No. 07-2574 Defendant’s child pornography sentence is affirmed, where “sexual contact,” as defined by 18 U.S.C. section 2246(3), includes self-masturbation, as long as the other requirements of the statute are satisfied, and thus defendant qualified for a sentence enhancement under U.S.S.G. section 2G2.1(b)(2)(A).
U.S. 6th Circuit Court of Appeals, July 22, 2009 Waeschle v. Dragovic, No. 08-2228 In a 42 U.S.C. section 1983 action against a county Medical Examiner for depriving plaintiff of her right to dispose of her deceased mother’s brain (removed in an autopsy and later incinerated as medical waste), denial of defendant’s motion for summary judgment based on qualified immunity is reversed where plaintiff had no clearly established property right in the brain because it was removed and retained for study in furtherance of a lawful criminal investigation.
U.S. 6th Circuit Court of Appeals, July 22, 2009 US v. Washington, No. 08-3317 In a drug prosecution, suppression of evidence found in a warrantless search is affirmed where the Fourth Amendment prohibits the warrantless search of a private home to investigate minor offenses, such as this one, that do not pose any threat of imminent violence or result in an ongoing injury to the community.
U.S. 6th Circuit Court of Appeals, July 24, 2009 US v. See, No. 08-3484 In a prosecution for possession of a firearm with a removed serial number, denial of defendant’s motion to suppress is reversed where the police did not have reasonable suspicion to believe that criminal activity was occurring, and thus, the stop of defendant’s vehicle violated the Fourth Amendment.
U.S. 7th Circuit Court of Appeals, July 20, 2009 US v. Knox, No. 06-4101 Sentence for drug crimes is vacated where: 1) two defendants were entitled to a remand for resentencing in light of Kimbrough as no congressional directive prohibited the district court from considering defendants’ sentencing argument based on the crack/powder disparity affecting career offenders convicted of drug conspiracy offenses under 21 U.S.C. sec. 846; and 2) another defendant is granted a limited remand at which the district court should indicate whether it would have sentenced him differently had it known of its discretion under Kimbrough. Two defendants’ sentences are affirmed in all other respects.
U.S. 7th Circuit Court of Appeals, July 20, 2009 US v. Polack, No. 08-3381 Sentence for theft is affirmed where the district court’s failure to properly follow Rule 11 of the Federal Rules of Criminal Procedure and inquire about the appellate waiver during the plea colloquy does not constitute plain error warranting remand as the totality of the circumstances shows that defendant’s guilty plea was knowing and voluntary.
U.S. 7th Circuit Court of Appeals, July 20, 2009 US v. Carter, No. 09-1608 District court order suppressing disputed evidence related to a bank robbery charge against defendant is reversed where: 1) the out of court identification of defendant based on evidence seized from his apartment was admissible under an attenuation theory as the officer did not know or should have that the search was likely to be unconstitutional, and thus there was no flagrant and purposeful misconduct that merits application of the exclusionary rule to evidence unearthed subsequent to the warrantless search; 2) the bait bills tying defendant to the robbery were admissible as consent to the search was a sufficient intervening event to break the causal chain between the illegal search, and a search where the bills were found; and 3) defendant’s confession was admissible as there was probable cause for his arrest. .
U.S. 7th Circuit Court of Appeals, July 21, 2009 US v. Alexander, No. 07-3718 Conviction for firearms possession is affirmed where: 1) the district court properly denied defendant’s motion to suppress evidence found in defendant’s car as a warrantless search of the car and the bag found in the engine compartment was reasonable under the Fourth Amendment; and 2) the court properly refused to suppress evidence obtained from a search of an apartment as the officers had probable cause to search the apartment, the evidence was also admissible under the inevitable discovery doctrine, and the occupant of the apartment voluntarily gave her consent to the search.
U.S. 7th Circuit Court of Appeals, July 21, 2009 Catlin v. City of Wheaton, No. 07-3903 In a civil rights action for false arrest and excessive force, summary judgment for defendants based on qualified immunity is affirmed where: 1) officers reasonably believed that the person arrested was the person sought; and 2) the officers’ use of force was not excessive, as the amount of force the defendants used to restrain defendant was reasonable, and it was not clearly established that defendants had a constitutional duty to identify themselves after they initially immobilized but before they fully restrained him. .
U.S. 7th Circuit Court of Appeals, July 21, 2009 US v. McNeil, No. 08-1772 Sentence for being a felon in possession of a firearm is reversed where the district court erred by not determining the status of defendant’s 2004 state sentence, as defendant and the government agreed to a recommendation that defendant would receive concurrent time with any state sentence he was serving. The case is remanded so that the court may supplement the record to determine the status of defendant’s 2004 sentence and whether the federal sentence should be ordered to run concurrent with it, as well as with his sentences from 2001.
U.S. 7th Circuit Court of Appeals, July 22, 2009 Lopez v. Thurmer, No. 07-3009 District court’s denial of plaintiff’s petition for writ of habeas corpus is affirmed where, although the Wisconsin appellate court applied a methodology based on an unreasonable reading of the decisions of the Supreme Court and thus improperly endorsed the trial court’s abnegation of its non-delegable responsibility to determine the appropriate security measures for a jury view of the crime scene, the Wisconsin court did not run afoul of any clearly established principle of federal law when it determined that the security measures taken did not violate plaintiff’s federal constitutional right to due process of law, and any error was harmless.
U.S. 7th Circuit Court of Appeals, July 22, 2009 Brock v. US, No. 07-3504 Conviction and sentence for drug crimes and firearms possession is affirmed where the court properly denied plaintiff’s motion under 28 U.S.C. section 2255 as plaintiff’s claim that newly discovered evidence would have triggered the exclusionary rule if presented earlier is barred by Stone v. Powell’s limitation on the exclusionary rule in collateral attacks.
U.S. 7th Circuit Court of Appeals, July 23, 2009 US v. Alviar, No. 07-2333 Conviction and sentence for drug crimes and conspiracy is affirmed where: 1) the district court did not abuse its discretion in admitting evidence of defendants’ gang affiliation as it was relevant to proving the allegations set forth in the indictment; 2) court did not err in refusing to sever defendant Madrigal from the trial; 3) the court properly accepted the government’s Santiago proffer, as it gave the court sufficient evidence to conclude that the government met the preconditions for admission of co-conspirator statements; 4) the court did not err in allowing testimony about a prior consistent statement of a witness who was alleged to have fabricated testimony about defendant Delgado-Rios or in allowing defendant’s mother-in-law to testify; 5) the prosecutor’s disputed statement was not improper vouching, and the improper remark did not render defendant Delgado-Rios’s trial fundamentally unfair; 6) the court did not abuse its discretion in denying defendant Meloro’s m! otion to bifurcate the trial; 7) the court did not err in enhancing defendant Tejada’s offense level based on leadership; and 8) the court properly sentenced defendant Madrigal based on the drug quantities within the range found by the jury.
U.S. 7th Circuit Court of Appeals, July 23, 2009 US v. Hensley, No. 08-1204 Conviction and sentence for attempting to solicit a minor for sex is affirmed where: 1) the district court did not abuse its discretion in admitting evidence of defendant’s prior online relationship with another minor; 2) there was sufficient evidence to show that defendant took a substantial step towards the completion of the offense; and 3) the court did not err in its calculation of defendant’s advisory guidelines range for sentencing.
U.S. 7th Circuit Court of Appeals, July 23, 2009 Starkweather v. Smith, No. 08-2354 District court judgment denying a petition for writ of habeas corpus is affirmed where plaintiff’s counsel did not render ineffective assistance of counsel as counsel was not required under the Sixth Amendment to explain the basis for his legal advice to plaintiff, and plaintiff was not prejudiced by counsel’s failure to introduce testimony from plaintiff’s mother..
U.S. 8th Circuit Court of Appeals, July 20, 2009 US v. Alexander , No. 08-2261 Conviction for receiving and possessing child pornography is affirmed where: 1) the district court did not err in denying the motion to suppress based on challenge to the validity of search warrant, as even if the warrant application had disclosed the defendant was present in the secretly recorded videos, the magistrate could reasonably assume that a probability of criminal conduct was shown based on invasion of privacy when the video was taken of others in the nude; 2) the warrant was not facially overbroad in allowing a search of storage of digital images; and 3) police did not unlawfully expand the scope of the invasion-of-privacy search into a search of child pornography, and the items were lawfully seized pursuant to the plain-view exception to the warrant requirement.
U.S. 8th Circuit Court of Appeals, July 20, 2009 US v. Jordan, No. 08-2954 Sentence for drug crimes is affirmed where the district court’s imposition of sentence at low end of the guidelines range was presumptively reasonable, the sentence was not procedurally or substantively erroneous, and the court’s sentencing colloquy sufficiently explained its rationale. .
U.S. 8th Circuit Court of Appeals, July 20, 2009 Zanders v. Swanson, No. 08-3221 District court’s dismissal of plaintiffs’ preenforcement challenge to a state criminal statute for lack of standing is affirmed where: 1) plaintiffs failed to meet their Article III burden of proving that their First Amendment rights were chilled based on a subjective and sincere belief that under the statute they would be criminally charged for making truthful claims of police misconduct; and 2) the court did not abuse its discretion in dismissing the claim of the one plaintiff with standing based on the Younger doctrine.
U.S. 8th Circuit Court of Appeals, July 20, 2009 US v. Salinas, No. 08-3356 Conviction and sentence for drug crimes is affirmed where: 1) the district court did not err in denying defendant’s claim of ineffective assistance of counsel for failure to explain that the application of the U.S.S.G. section 2D1.1(b)(1) sentencing enhancement required proof of a connection between the firearm and the narcotics offense, as trial counsel’s actions in explaining the government’s evidentiary burden did not fall below an objective standard of reasonableness; and 2) defendant could not show that had he gone to trial his challenge to the inclusion of the enhancement would have succeeded.
U.S. 8th Circuit Court of Appeals, July 20, 2009 US v. Gonzalez, No. 08-3361 Sentence for drug crimes is affirmed where: 1) the district court did not abuse its discretion in departing upward for underrepresentaion of criminal history pursuant to U.S.S.G. sec. 4A1.3 as the court considered the appropriate factors and gave an adequate explanation for its decision to impose the upward departure; and 2) the court did not abuse its discretion in denying a downward variance as it properly weighed the factors warranting downward variance and those that militated against a departure.
U.S. 8th Circuit Court of Appeals, July 23, 2009 US v. Beale, No. 08-3205 Conviction and sentence for tax evasion and other crimes is affirmed where: 1) there was sufficient evidence of defendant’s willfulness to support his conviction for tax evasion; 2) the court did not abuse its discretion in refusing to recuse itself after defendant plotted to have the judge arrested by the provost marshal of his “common law court” in an attempt to intimidate all of the judges of the district; 3) defendant was not denied due process as he was provided with adequate resources to conduct his pro se defense; and 4) defendant’s sentence was not substantively unreasonable.
U.S. 8th Circuit Court of Appeals, July 24, 2009 US v. Jones. , No. 08-2851 Sentence for being a felon in possession of a firearm is affirmed where: 1) the district court did not err in finding defendant qualified for sentencing under the Armed Career Criminal Act as his convictions for domestic assault under Missouri law constituted convictions for violent felonies; 2) the Eighth Amendment does not prohibit using an adult conviction based on juvenile conduct to increase a sentence under the Armed Career Criminal Act; and 3) the court did not violate the defendant’s right to a trial by jury under the Sixth Amendment as the question of whether a conviction qualifies as a predicate offense under the Act is a question of law for the court, not a jury. .
U.S. 8th Circuit Court of Appeals, July 24, 2009 US v. Smith, No. 08-3775 Sentence for drug crimes and firearms possession is affirmed where: 1) the district court did not abuse its discretion in refusing to compel the government to a file a substantial assistance motion under U.S.S.G. section 3553(e) as defendant failed to meet his burden of showing that the government acted with an improper motive in refusing to file the motion; and 2) the government was not judicially estopped from arguing that defendant had not provided substantial assistance.
U.S. 9th Circuit Court of Appeals, July 20, 2009 Vasquez v. Kirkland, No. 08-55699 In a murder case, the denial of Petitioner’s habeas petition is affirmed where testimony by a deaf witness using sign language did not violate the Confrontation Clause because the limitations on the effectiveness of cross-examination resulted from the witness’s own physical impairments.
U.S. 9th Circuit Court of Appeals, July 21, 2009 Huppert v. Pittsburg, No. 06-17362 In a 42 U.S.C. section 1983 action claiming that defendant city violated the First Amendment by disciplining plaintiff police officers based on their speech, summary judgment for defendants is affirmed where the speech at issue was made pursuant to plaintiffs’ job duties. .
U.S. 9th Circuit Court of Appeals, July 21, 2009 US v. Payton, No. 07-10567 In a child pornography prosecution, denial of defendant’s motion to suppress evidence of child pornography found on his personal computer is reversed where a search of defendant’s computer exceeded the scope of the warrant and did not meet the Fourth Amendment standard of reasonableness.
U.S. 9th Circuit Court of Appeals, July 23, 2009 US v. Guzman-Padilla, No. 08-50114 In a drug prosecution, denial of defendants’ motion to suppress evidence is affirmed where the stop of defendants’ vehicle was a valid seizure incident to an extended border search, and the force used to effect the stop was not excessive.
U.S. 9th Circuit Court of Appeals, July 24, 2009 US v. Nobari, No. 06-10465 Defendants’ drug conspiracy convictions are affirmed where the prosecution improperly presented, as evidence of defendants’ guilt, testimony that drew generalizations on the basis of ethnicity, but the other evidence against defendants was overwhelming and thus the error was harmless.
U.S. 9th Circuit Court of Appeals, July 24, 2009 Conn v. Reno, No. 07-15572 In a 42 U.S.C. section 1983 action based on a prisoner’s suicide, summary judgment for defendants is reversed where: 1) a reasonable jury could find that defendant police officers were liable for their deliberate indifference to plaintiff’s serious medical need; and 2) defendant city could be found liable for failure to properly train the officers.
U.S. 9th Circuit Court of Appeals, July 24, 2009 US v. Harris, No. 08-10370 Defendant’s bank robbery sentence is affirmed where defendant’s prior Nevada convictions for robbery and attempted robbery categorically qualified as “crimes of violence” under U.S.S.G. section 4B1.2, and thus defendant was properly classified as a career offender.
U.S. 10th Circuit Court of Appeals, July 20, 2009 US v. Baines, No. 08-2098 Defendant’s drug conviction is affirmed, where the District Court did not abuse its discretion in allowing the government to present expert evidence that a thumb print found on some of the contraband recovered by the authorities was a match to Defendant’s print.
U.S. 10th Circuit Court of Appeals, July 20, 2009 US v. Juarez-Galvan, No. 08-3211 Defendant’s sentence for illegally reentering the U.S. is affirmed, where kidnapping under Cal. Penal Code section 207(a) and second-degree robbery under Cal. Penal Code section 211, of which Defendant was convicted, are “crimes of violence” under Section 2L1.2 of the Sentencing Guidelines.
U.S. 11th Circuit Court of Appeals, July 23, 2009 Philmore v. McNeil, No. 07-13637 In a capital habeas matter, denial of the habeas petition is affirmed where 1) defense counsel’s allegedly ineffective representation occurred before petitioner’s Sixth Amendment right to counsel had attached with respect to the murder at issue; and 2) petitioner’s Batson challenge to jury selection was barred by a state procedural rule.
U.S. 11th Circuit Court of Appeals, July 23, 2009 US v. Sarras, No. 08-11757 Defendant’s child pornography conviction and sentence are affirmed, where 1) defendant did not show that his expert witness’s methodology was a sufficiently reliable identification technique; and 2) defendant’s proffered testimony that child pornography cases usually involve multiple children would have been cumulative. .
U.S. 11th Circuit Court of Appeals, July 23, 2009 Kurtz v. Comm’r. of Int’l. Rev., No. 08-15209 In a tax court petition challenging an IRS deficiency notice issued to petitioner based on improper deductions, the Tax Court’s order denying the petition is affirmed where no federal law requires food or beverages to be provided to seamen aboard a fishing vessel.
U.S. D.C. Circuit Court of Appeals, July 21, 2009 US v. Thomas, No. 07-3080 Defendant’s firearm possession sentence is vacated where 1) the law of the case doctrine precluded the district court from revisiting its determination at resentencing; and 2) the government adequately established that defendant committed the requisite predicate offenses under the Armed Career Criminal Act (ACCA) “on occasions different from one another” so as to subject defendant to the ACCA’s mandatory 15-year sentence.
Supreme Court of California, July 20, 2009 People v. Friend, No. S027264 Conviction for first degree murder and robbery and sentence of death is affirmed where: 1) the prosecutor did not commit prosecutorial misconduct, and any misconduct that did occur was harmless in light of the evidence of defendant’s guilt; 2) defendant failed to show that the testimonies of certain witnesses were unreliable, and thus properly admitted the testimonies; 3) the court did not err in allowing the prosecutor to present the testimony of one of the witnesses’ attorneys in rebuttal; 4) defendant was not denied effective assistance of counsel; and 5) defendant’s other claims of error in the trial phase are without merit. At defendant’s second trial: 1) the court did not err in excusing prospective jurors based on their views concerning the death penalty; 2) the prosecutor did not commit misconduct; 3) the trial court did not err in determining that a witness was unavailable as a witness and admitting his testimony from the first trial; 4) the court did not err in the! instructions it did and did not give to the jury; 5) during the penalty phase, the prosecutor did not commit misconduct and there was no error in the admission of challenged evidence; and 6) California’s death penalty statute does not violate the state or federal constitution.
Supreme Court of California, July 23, 2009 Porter v. Superior Court of Monterey County, No. S152273 Court of Appeals’ issuance of a peremptory writ of mandate directing the trial court to dismiss premeditation and gang enhancement allegations is reversed where: 1) trial court order setting aside the allegations for a new trial cannot be construed as an express or implied acquittal triggering constitutional double jeopardy protections; 2) plaintiff’s conviction of the underlying attempted murder offenses did not bar retrial of the allegations under Penal Code sec. 1181; and 3) the scope of the retrial may be limited to penalty allegations as penalty allegations are not elements of an offense under California law.
Supreme Court of California, July 23, 2009 People v. Anderson, No. S152695 Conviction for kidnapping is affirmed where: 1) constitutional double jeopardy principles did not bar retrial of the factual sentencing allegation of kidnapping on which defendant’s first jury deadlocked as the mistrial due to jury deadlock was not an event that terminated jeopardy on the allegation; 2) defendant’s retrial of the factual sentencing allegation of kidnapping did not violate California’s statutory provision against double jeopardy as the allegation on which defendant’s first jury deadlocked was not a greater offense that incorporated the underlying lewd act crime as a lesser included offense under California law; and 3) retrial of a penalty allegation may be limited to the deadlocked allegation alone.
California Appellate Districts, July 21, 2009 People v. Indiana Lumbermens Mut. Ins. Co. , No. B208691 Order denying defendant’s motion to vacate summary judgment and forfeiture and exonerate bond is reversed where: 1) it was sufficient that a defendant was surrendered to custody outside the county in the underlying case within the 180-day period; and 2) the summary judgment was void as the defendant was surrendered to custody within 180 days and thus the court lacked jurisdiction to enter summary judgment on the forfeited bond.
California Appellate Districts, July 21, 2009 People v. Wagner, No. E047167 Trial court order dismissing the case against defendant is affirmed where: 1) trial court did not abuse its discretion in denying the request to continue the case beyond the time limit set forth in Penal Code sec. 1382 after finding no courtroom available in which to try the matter, and there was nothing in the record to support the People’s claim that the court congestion was caused by the trial court’s mismanagement or administrative policy; and 2) the People are foreclosed from refiling the charges in this case under Penal Code sec. 1238 (a)(8). ..