The Criminal Docket

A  PUBLICATION  OF  THE  CRIMINAL  JUSTICE  SECTION  OF  THE  LOS  ANGELES  COUNTY  BAR  ASSOCIATION

  May, 2006      

Volume I, Number 4  

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COPYRIGHT © 2006 LOS ANGELES COUNTY DISTRICT ATTORNEY’S OFFICE.  ALL RIGHTS RESERVED.  MAY BE REPRODUCED FOR NON-COMMERCIAL PROSECUTORIAL, LAW ENFORCEMENT AND EDUCATIONAL PURPOSES ONLY.

 NUMBER:  2006-07   DATE:  03-28-06  BY:  Devallis Rutledge    TOPIC:  Gun Use Enhancement

ISSUE:    Can the enhancement of PC § 12022.53(d) be imposed consecutive to an LWOP sentence?

   When Samuel Shabazz fired several rounds point-blank at the driver of a stopped car, the driver ducked and the rounds struck and killed his passenger instead. Shabazz was sentenced to life without parole for the murder, plus a consecutive term of 25-to-life for using a gun, as mandated by 12022.53(d).
   On appeal, Shabazz argued that 12022.53(j) made a (d) enhancement inapplicable, because (j) provides that the enhancement should not be imposed if "another provision of law provides for a greater penalty or a longer term of imprisonment," and 190.2(a)(22), under which he was sentenced, provided for an LWOP sentence, which is longer. The court of appeal agreed and struck the enhancement.
   The California Supreme Court unanimously reversed. Subsection (j), said the court, should not be read as restricting enhancements just because the sentence for the underlying felony is greater, finding this "illogical and contrary to the purpose of the statute." People v. Shabazz (2006) ___ Cal.4th ___ , DJDAR 3567, WL 759674. Whether or not the enhancement could ever actually be served, the sentencing court is mandated to impose it unless there is another way to impose a longer total sentence.
   (The court also ruled that the doctrine of "transferred intent" made Shabazz liable for a gang-murder special circumstance, even though he killed an unintended victim.)

BOTTOM LINE: An LWOP sentence can be properly enhanced for gun use under PC § 12022.53(d).

This information was current as of publication date. It is not intended as legal advice. It is recommended that readers check for subsequent developments, and consult legal advisors to insure currency after publication.  Local policies and procedures regarding application should be observed.


NUMBER: 2006-09    DATE: 04-14-06    BY: Devallis Rutledge    TOPIC: "Prejudicial" ≠ "Damaging"

ISSUE:    Can relevant evidence be excluded under Evidence Code § 352 on the ground that it tends too strongly to prove defendant's guilt
   
   Sometimes when the defense objects to the introduction of highly probative evidence on grounds of its prejudicial impact, the objector is really saying: "This helps the prosecution and hurts the defense too much, so it's prejudicial." When that happens, it's necessary for counsel and courts to distinguish "prejudicial" from "damaging."
   If "prejudicial" simply meant "damaging," the most highly probative evidence would be inadmissible under § 352. Instead, "Evidence Code section 352 is designed for situations in which evidence of little evidentiary impact evokes an emotional bias." People v. Olguin (1994) 31 Cal.App.4th 1355, 1369.
   "The prejudice which exclusion of evidence under Evidence Code section 352 is designed to avoid is not the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence. ... 'The "prejudice" referred to in Evidence Code section 352 applies to evidence which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues. In applying section 352, "prejudicial" is not synonymous with "damaging".' "  People v. Karis (1988) 46 Cal.3d 612, 638. (Bold emphases added. Citation omitted.)
       "'Prejudice' as contemplated by section 352 is not so sweeping as to include any evidence the opponent finds inconvenient. Evidence is not prejudicial, as that term is used in a section 352 context, merely because it undermines the opponent's position or shores up that of the proponent. The ability to do so is what makes evidence relevant. ... Here, the court [erroneously] focused on the fact that the evidence hurt one party's case. That is what opposing evidence is generally supposed to do."  Vorse v. Sarasy (1997) 53 Cal.App.4th 998, 1008-09 (Bold emphases added.)
      Just how common is the mistake of equating "prejudice" with "damage"? A Westlaw search of the phrase "prejudicial is not synonymous with damaging" hits 204 California appellate cases, including the following (in case you need more authorities in opposing a meritless 352 motion): People v. Kipp (2002) 26 Cal.4th 1100, 1121; People v. Gionis (1995) 9 Cal.4th 1196, 1214; People v. Bolin (1998) 18 Cal.4th 297, 320; People v. Rucker (2005) 126 Cal.App.4th 1107, 1119; People v. Branch (2001) 91 Cal.App.4th 274, 286; People v. Callahan (1999) 74 Cal.App.4th 356, 371; People v. Felix (1994) 23 Cal.App.4th 1385, 1396; People v. Brogna (1988) 202 Cal.App.3d 700, 710; and People v. Yu (1983) 143 Cal.App.3d 358, 377 (the original statement of the phrase).


BOTTOM LINE: Under Evidence Code § 352, "prejudicial" is not synonymous with "damaging," and relevant evidence is not inadmissible simply because it is too probative.

This information was current as of publication date. It is not intended as legal advice. It is recommended that readers check for subsequent developments, and consult legal advisors to insure currency after publication.  Local policies and procedures regarding application should be observed.

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