The Criminal Docket


December 2005

Volume 1, Number 1


ISSUE No. 1: To be admissible under Evidence Code section 1220, must a defendant’s statement be an incriminating admission?
ISSUE No. 2: Can a defendant who is granted pretrial release on his/her own recognizance be subjected to restrictive conditions?
ISSUE No. 3: How far must a suspect’s actions go in order to constitute the crime of attempted robbery?

ISSUE: To be admissible under Evidence Code section 1220, must a defendant’s statement be an incriminating admission?
 As any discriminating shopper can tell you, labels can be misleading. The label on Evidence Code section 1220 calls this hearsay exception “Admission of party.” What the section actually says is quite different: “Evidence of a statement is not made inadmissible by the hearsay rule when offered against the declarant in an action to which he is a party in either his individual or representative capacity, regardless of whether the statement was made in his individual or representative capacity.” Nothing about admissions.   But because of the section heading in the code, some judges and attorneys seem to think defendant’s statement cannot be admitted against him unless it amounts to an admission. If this were the rule, it would be difficult to use a statement that shows a consciousness of guilt, for example, such as defendant’s statement that he recently shaved off his beard, where the perpetrator was described as having a full beard. There is nothing inherently incriminating about shaving off a beard, and this statement would be offered against defendant for its truth. But section 1220 makes it admissible, notwithstanding the misleading heading.  Evidence Code section 5 provides that “Division, chapter, article, and section headings do not in any manner affect the scope, meaning, or intent of the provisions of this code.” (PC § 7.5 makes a similar provision as to headings in the Penal, H&S and W&I Codes.) Noting this, the California Supreme Court has clarified that a declarant’s statements need not be admissions in order to be admissible under § 1220:  “The evidence was of statements, defendant was the declarant, the statements were offered against him, and he was a party to the action. Accordingly, the hearsay rule does not make the statements inadmissible. Defendant argues that the statements were not ‘admissions.’ The argument is irrelevant to the hearsay question. Evidence Code section 1220 refers to a ‘statement,’ not an ‘admission.’ It is true that the section heading refers to ‘Admission of party,’ but the heading is irrelevant to its construction. (Evid. Code § 5.) The hearsay rule does not compel exclusion of any statement offered against a declarant, whether or not it can be described as an admission.”  People v. Carpenter (1999) 21 Cal.4th 1016, 1049 (Emphasis in original.)  See also, People v. Zack (1986) 184 Cal.App.3d 409, 417. (“Any prior statement of a party may be offered against him, even though it may not have been against his interest or even may have been self-serving when made.” Quoting Witkin.)
BOTTOM LINE: Despite what the section heading says and what is sometimes believed, the hearsay exception in Evidence Code § 1220 is not limited to statements that qualify as “admissions.”

NUMBER: 2005-17 DATE: 09-09-05 BY: Scott Carbaugh TOPIC: Hearsay Exception: Evid. C. § 1220
                                                                                               Back to Top

ISSUE: Can a defendant who is granted pretrial release on his/her own recognizance be subjected to restrictive conditions?
It's not uncommon for OR releases to be conditioned on various kinds of case-relevant court orders—suspicionless search and seizure; random drug testing; wear an electronic bracelet; stay away from children, spouse, witnesses or Wal-Mart; etc. May law enforcement officers constitutionally enforce such conditions?  Penal Code § 1270 authorizes OR release in specified cases and provides that "the court shall specify the conditions, if any, whereunder the defendant shall be released." PC § 1317 describes the OR release agreement, including "the defendant's promise to obey all reasonable conditions imposed by the court." These statutes were found by the California Supreme Court to justify imposing warrantless search and drug-testing conditions on drug defendants released OR: "An individual who is unable to post bail and seeks OR release may be required to consent to this type of restriction in exchange for receiving the leniency of an OR release." In re York  (1995) 9 Cal.4th 1133, 1150. The court found no constitutional obstacles.

The Ninth Circuit has come to the opposite conclusion.  Raymond Lee Scott was arrested in Nevada for meth possession and was released OR, on condition he submit to drug testing and warrantless searches, and possess no firearms. Officers were later tipped that Scott had paraphernalia and a sawed-off shotgun in his home. Executing the OR conditions, officers found the shotgun. Scott was prosecuted under federal firearms statutes, but the district court suppressed the fruits of the search. The Ninth Circuit affirmed (2-1). US v. Scott, ___ F.3d ___ , DJDAR 11149, 2005 WL 2174413.

The Ninth Circuit's rationale for invalidating the search appears to be that magistrates and judges should not extend a fourth option to arrestees, beyond bail, jail or unconditional OR release, because "the government" (presumably, the judicial branch thereof) cannot be trusted not to "abuse its power by attaching strings strategically." Since the magistrate's imposition of a search/drug-test condition, to which Scott agreed in exchange for OR release, amounted to an "unconstitutional condition," police reliance on that condition was unreasonable, and the seizure of the sawed-off shotgun therefore violated the Fourth Amendment. (I know. It's the Ninth Circuit.)  The dilemma created for law enforcement officers is an increasingly-familiar one: if officers execute OR conditions imposed by California magistrates, resulting evidence will be admissible in superior court prosecutions but inadmissible in federal district court proceedings. And inasmuch as Scott becomes "clearly-established federal law" if it is not corrected on further review, that decision—not York—will govern claims of civil liability against officers and their agencies under 42 USC § 1983. (No decision has been reached by the US Attorney as to whether en banc rehearing will be sought.)
BOTTOM LINE: While California magistrates retain the authority to impose reasonable conditions on OR release, those conditions may be held to run afoul of the federal understanding of what the Constitution permits.

NUMBER: 2005-18 DATE: 09-19-05 BY: Devallis Rutledge TOPIC: Conditions on OR Release
                                                                                               Back to Top

ISSUE: How far must a suspect’s actions go in order to constitute the crime of attempted robbery?
The general rule for attempt crimes is that the perpetrator must intend to commit the crime and must take some action beyond mere preparation to put his or her plan into operation, though that act need not be the last proximate or ultimate step toward commission of the crime. People v. Kipp (1998) 18 Cal.4th 349, 376. This means that where the intent to commit robbery is evident and the suspect has taken an act toward the “commencement of consummation” of the crime, s/he can be convicted of attempted robbery.
Defendant, wearing a poncho that only partially concealed his rifle, approached the entrance to a liquor store, but turned away without making entry when a customer approached him. Held: “Approaching the liquor store with a rifle and attempting to hide on the pathway immediately adjacent to the liquor store when observed by a customer is, in the opinion of this court, a sufficient direct act toward the accomplishment of the robbery.” Conviction affirmed. People v. Vizcarra (1980) 110 Cal.App.3d 858, 862.
Armed defendants entered a residence occupied by Ramon, Juan and Angel and announced a robbery. After Ramon was robbed, gunfire was exchanged with Juan, and defendants fled without taking property from Juan or Angel. Defendants challenged their convictions for attempted robbery of Juan and Angel. Held: “On the state of the facts, it could reasonably be deduced that had Juan not opened fire, both he and Angel would have been robbed as well as Ramon.” Convictions affirmed. People v. Scott (1985) 173 Cal.App.3d 937, 943.
Intending to hold up the players at a kitchen card game, defendant pushed his way into the front door of an apartment. The female resident shoved him back into the hallway before he was ever in the presence of the intended victims in the kitchen. After shooting and killing her, defendant fled. Held: “The defendant’s brief but forcible entry into the victim’s apartment is an overt and unequivocal act towards the robbery he intended to commit. ... This act goes beyond merely preparing for the crime, and clearly indicates that the offense was already in progress.” Convictions affirmed. People v. Birden (1986) 179 Cal.App.3d 1020, 1026.
Defendant told a witness of his plan to rob the hotel manager and assistant manager as they left with the daily bank deposit. Armed and masked, defendant was making his way through the hotel garage when he encountered two housekeeping employees. Defendant lost his gun in a struggle with the housekeepers, and he ran from the premises without ever having seen the managers. Held: “It was appellant’s admitted intent to stop the two at gunpoint and take the money from their possession. Since appellant intended to rob two victims, and since he undertook acts beyond mere preparation directed at robbing the two hotel managers, he could properly be convicted of two counts of attempted robbery. ... Any later event that interrupted those crimes was irrelevant to appellant’s liability for two counts of attempted robbery.” Convictions affirmed. People v. Bonner (2000) 80 Cal.App.4th 759, 765.
BOTTOM LINE: Where the intent to rob can be shown, an attempt is committed once the suspect takes some act toward consummation, even if intervening circumstances prevent completion.
NUMBER: 2005-20 DATE: 10-21-05 BY: Devallis Rutledge TOPIC: Attempted Robbery

Summaries of some new legislation for 2006 affecting law enforcement and prosecutions are provided below. The full text of the statutes should be consulted for application.
PC § 1336 (Amended) Age as a reason to allow conditional exam of witnesses, by prosecution or defense, is lowered from 70 to 65.
 PC § 1347 (Amended) Expands circumstances under which victim of specified offenses who is 13 or younger may testify by closed-circuit television.
 PC § 1529 (Amended) Changes wording on search warrant form, to order service by "any peace officer," instead of "any sheriff, marshal or police officer."
 PC § 3003 (Amended) High-risk sex offenders (for PC §§ 288, 288.5) cannot be released on parole to reside within one-half mile of a public or private school, K-12. Also, W&I § 6608.5, as amended, prohibits release of sexually violent predators to reside within one-quarter mile of K-12 public or private schools.
 PC § 4801 (Amended) Changes terminology: "battered woman syndrome" is now "intimate partner battering and its effects."
 PC § 12072 (Amended) PC § 12084 (Repealed) Sale, loan and transfer of firearms may no longer be accomplished through a law enforcement agency, but must go through a licensed firearms dealer.
 Evid. C § 1038 (Added) Creates a testimonial privilege for confidential communications between a victim and a human-trafficking caseworker.
 Evid. C § 1109 (Amended) In PC § 273d cases, prior acts of child abuse are not inadmissible under 1101, subject to 352 hearing and presumptive 10-year cut-off.
 VC §§ 2800.1. 2800.3, 14602.1 (Amended); 1666.1, 17004.7 (Added) Overhaul of police pursuit laws increases penalties for fleeing/evading, mandates police reports  to CHP, specifies detailed contents of pursuit policies affecting civil liability, sets training and certification standards, and requires DMV to include a CDL test question re evasion risks and penalties.
 VC § 4467 (Amended) Victims of rape and sexual battery are added to the list of those who may be issued new license plates, with specified documentation.
 VC § 12814.6 (Amended) Restrictions on licensed drivers aged 16 and 17 are increased, to include during the first 12 months of licensure no driving between 11:00 a.m. and 5:00 a.m. and no carrying passengers under 20, either unless parent, licensed instructor or 25-year-old is in the vehicle.
 VC § 14602.8 (Added) Officers may immediately impound a vehicle driven by a DUI with 10-year priors, if the driver's BAC is 0.10% or higher, or if the driver refuses a chemical test requested by the officer. Notice and hearing are provided.
 VC §§ 21720, 21721 (Added) "Pocket bikes" (midget motor scooters) are prohibited on streets, sidewalks, bike paths, horse trails and public lands, and can be immediately impounded for 48 hours.
 VC § 23109 (Amended) Speed contest with injury is punishable by 30 days to 6 months' jail and/or $500-$1000 fine; second violation in 5 years with serious bodily injury is a wobbler.
NUMBER: 2005-23 DATE: 12-05-05 BY: Devallis Rutledge TOPIC: New Laws—2006—Part 2

Back to Top

Back to Beginning of This Issue