Los Angeles County Bar Association • daily ebriefs • Monday, December 3, 2012
By: Los Angeles County Bar Association on Dec 04, 2012 01:09:17 AM

The following caselaw summaries are provided as a courtesy to Los Angeles County Bar Association members by the Metropolitan News-Enterprise http://www.metnews.com. Summaries from the past 90 days are archived and searchable on the LACBA Web site at http://www.lacba.org/dailyebriefs.


-Immigration Law-
Court of appeals lacked jurisdiction pursuant to 8 U.S.C. Sec. 1252(a)(2)(C) over alien's challenge to BIA's discretionary determination finding him ineligible for withholding of removability because the crime underlying his removability was a "particularly serious crime."
Pechenkov v. Holder - filed December 3, 2012
Cite as 08-73287
Full text http://www.metnews.com/sos.cgi?1212//08-73287

-Immigration Law-
District court lacked subject matter jurisdiction of action alleging that BIA's denial of asylum and related relief was arbitrary and capricious in violation of the Administrative Procedure Act; 8 U.S.C. Sec. 1252(a)(5)--specifying that the petition for review process is the exclusive means to challenge an order of removal--bars any claim challenging the procedure and substance of agency determinations "inextricably linked" to an order of removal, no matter how the claim is framed.
Martinez v. Napolitano - filed November 3, 2012
Cite as 10-56023
Full text http://www.metnews.com/sos.cgi?1212//10-56023

-Individual Rights-
Warrantless entry into plaintiff's yard during officer's pursuit of a suspect, who had committed at most a misdemeanor offense, was an illegal search, as plaintiff's yard was curtilage entitled to the same Fourth Amendment protections as her home. Established law as of May 2008 would have placed a reasonable officer on notice that his warrantless entry into the curtilage of a home constituted an unconstitutional search, which could not be excused under the exigency or emergency exception to the warrant requirement when officer was investigating a report of a disturbance but had no information tying suspect to the reported disturbance, and did not see suspect carrying a weapon, and suspect did not engage or threaten officer.
Sims v. Stanton - filed December 3, 2012
Cite as 11-55401
Full text http://www.metnews.com/sos.cgi?1212//11-55401


-Criminal Law and Procedure-
Penal Code Sec. 656, which provides a defense to a California prosecution if defendant was previously prosecuted in another jurisdiction, and the prior foreign prosecution was based upon the "act or omission" for which the defendant is "on trial" in California, did not apply to defendant convicted in federal court of interstate murder for hire and subsequently prosecuted in California for special-circumstance murder, when proof of the special circumstance was not requisite to the federal conviction. Admission of codefendant's hearsay statement urging witness to destroy evidence was not a confession and did not facially incriminate defendant, so any possible prejudice to defendant was dispelled by a limiting instruction, and no Bruton/Aranda violation occurred. Evidence of defendant's murder convictions in another jurisdiction, which occurred after the California murders with which he was charged, was properly admitted during penalty phase as proof of violent criminal activity. Trial court did not abuse its discretion in removing juror, who was sole holdout opposing death penalty verdict, when juror sent judge a note stating that she could not vote for death penalty because the case did not involve a child victim, a torture, or a rape, and court determined that this was contrary to the answers given on voir dire and to the juror's duty to fairly deliberate.
People v. Homick - filed December 3, 2012
Cite as S044592
Full text http://www.metnews.com/sos.cgi?1212//S044592

-Criminal Law and Procedure-
A conviction is not based on "false evidence" within the meaning of Penal Code Sec. 1473(b) when it depends in part on the opinion of an expert witness, and posttrial advances in technology have raised doubts about the expert's trial testimony without conclusively proving that testimony to be untrue; however, information garnered from the technological advances may be presented as newly discovered evidence in support of habeas corpus relief. Opinions of dental experts, based on newly available computer technology, that expert who testified for prosecution at defendant's trial erred in concluding that a bite mark found on victim came from a human being, did not unerringly prove defendant's innocence for habeas corpus purposes, when defendant failed to undermine other, strong evidence of guilt.
In re Richards - filed December 3, 2012
Cite as S189275
Full text http://www.metnews.com/sos.cgi?1212//S189275

-Criminal Law and Procedure-
When officer was aware that defendant's front seat passenger was on parole, it was constitutionally permissible for officer to search those areas of the passenger compartment where the officer reasonably expected that the parolee could have stowed personal belongings or discarded items when aware of police activity; officer was also entitled to search personal property located in those areas based on reasonable belief that the parolee owned those items or had the ability to exert control over them.
People v. Schmitz - filed December 3, 2012
Cite as S186707
Full text http://www.metnews.com/sos.cgi?1212//S186707


-Civil Procedure-
Rule 2.30 of the California Rules of Court--which permits a court to award attorney's fees as sanctions for a rules violation--does not authorize full compensation of all attorney's fees incurred as a result of such violation but only authorizes the court to award reasonable attorney's fees incurred in connection with the proceedings in which the aggrieved party seeks sanctions.
Sino Century v. Farley - filed December 3, 2012, Second District, Div. Three
Cite as B236912
Full text http://www.metnews.com/sos.cgi?1212//B236912

-Criminal Law and Procedure-
Evidence that defendant gang members went to home of rival with intent to kill him in retaliation for his having "disrespected" one of the defendants, and that rival fatally shot one of the gang members after he armed himself and attempted to enter rival's apartment through a bedroom window, was sufficient to convict defendants of first degree murder under the provocative-act doctrine; jurors could have reasonably found the doctrine to have embraced all of the defendants' conduct on that occasion, not just the attempted entry. Gang-murder special circumstance and street-gang sentence enhancement can apply to provocative-act murder, even when the motive of the actual killer was to thwart, rather than promote, the activities of a criminal street gang.
People v. Mejia - filed November 30, 2012, Second District, Div. Eight
Cite as B229382
Full text http://www.metnews.com/sos.cgi?1212//B229382

-Criminal Law and Procedure-
Expert testimony under the Sexually Violent Predators Act did not invade the jury's province when experts testified about the bases for their opinion but did not advocate for a particular outcome or attempt to weigh the evidence.
People v. Lowe - filed November 30, 2012, Fourth District, Div. One
Cite as D060048
Full text http://www.metnews.com/sos.cgi?1212//D060048


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