Category Archives: Prejudice: Selective vs. Whole-Record Review

Where the court found or presumed trial error, did the court fail to conduct proper “whole-record” review and instead examine the record from an exclusively judgment-favoring perspective, ignoring other evidence or relevant non-evidentiary record factors?

People v. Nguyen – 8/13/2015

People v. Nguyen

No. S076340; 61 Cal.4th 1015 (opn 8/13/2015; rhg den 10/14/2015; petn for cert to be filed)

Year: 2015
Errors:
Facts: Error/Omission
Law: Error/Misstatement
Issues: Omission/Unbriefed
Prejudice: Selective vs. Whole-Record Review
Court: Supreme Court
Errors Found/Argued: Errors not found by another court

Summary: In this capital case decision, the California Supreme Court consistently portrayed the facts of the crimes in a misleadingly (and sometimes inaccurately) pro-prosecution manner, ignoring evidence that undermined the prosecution’s case or supported the defense version; it repeatedly ignored appellant’s legal arguments; it ignored precedent in appellant’s favor; it reached pro-prosecution conclusions about the law that were neither explained nor supported by precedent; it frequently misstated or misleadingly portrayed the facts relevant to the legal issues raised; and it relied on reasons for rejecting appellant’s claims that had not been proposed by the respondent. See, e.g.:

Facts: Error/Omission: Rhg.Pet. pp. 5-21, 34-36, 39, 46-49, 50-51, 56-57, 58

Law: Error/Misstatement: Rhg.Pet. 28-29, 56, 58-59

Issues: Omission, Mischaracterization, Unbriefed: Rhg.Pet. 21-26, 29-30, 34, 36-37, 39, 40-44, 51-52, 53-55, 56-57

Prejudice: Selective vs. Whole Record Review: Rhg.Pet. 13, 31, 34, 37-38, 44-46

Document Links:
Supreme Court Opinion (61 Cal.4th 1015; Google Scholar)
Supreme Court Opinion (PDF)
Petition for Rehearing (PDF)

People v. Sedillo – 4/8/2015

People v. Sedillo

No B248671 (opn. 4/8/2015, petn for rev pending, S226342)

Year: 2015
Errors:
Law: Error/Misstatement
Selective vs. Whole-Record Review
Court: 2d District, Div 1
Errors Found/Argued: Errors not found by another court

sedilloSummary: In a published opinion, the Court of Appeal found two trial errors and determined neither of them were prejudicial:

1. Error in admitting evidence that defendant’s phone was the subject of a court-ordered wiretap: The court agreed this was error and, without saying whether it was of constitutional dimension, found it was harmless because “defendant made sufficient statements regarding her culpability for the shootings with which she was charged to support the jury’s verdicts. The wiretaps show that defendant consistently bragged about her participation in the shooting that had taken place at Presidio’s wake.” (pp. 23-24.) In addition to stating the wrong legal standard – whether there was “sufficient evidence” to support the verdict – the court ignored: (a) that the defense’s argument at trial was that defendant was lying about having been involved in the shooting 18 years earlier; (b) that a gang expert provided testimony about why someone would lie about that; (c) the eyewitness descriptions of the getaway driver, alleged to have been defendant, were inconsistent with Sedillo; one witness, Foch, testified he saw the getaway driver and it was a male; and (d) that the jury asked for readback of Foch’s testimony on this point, showing jurors did not find defendant’s boasts to be overwhelming proof of her guilt.

2. Failure to instruct that to be liable as an aider and abettor, defendant had to form the intent to render aid before the shooting occurred: The court acknowledged this was constitutional error subject to Chapman analysis. But it found the error harmless because it was not “reasonably likely” the jury found defendant formed the intent after the shooting. (pp. 31-32.) In so doing, the court looked at only one part of the record – the fact CALJIC No. 3.01 is phrased in the “present tense,” which the court believed would have led the jury to convict defendant only if she formed the intent to render aid before the shooting. The analysis ignored: (a) that there was, in the court’s words, “skimpy evidence” of what occurred before the shooting; (b) that the jury rejected allegations defendant premeditated and deliberated, which is inconsistent with a finding she knew ahead of time that the direct perpetrator intended to commit murder (People v. Samaniego; People v. Lee); and (c) that nothing in the instructions told the jury the crimes were finished once the shooting stopped, so there is no basis to find jurors would have assumed that was the point before which Sedillo had to form the requisite intent.

The court also found numerous asserted errors would have been harmless, based on the similarly-mistaken reasoning it used for the evidentiary error described above.

Document Links:
Court of Appeal Opinion (Google Scholar)
Court of Appeal Opinion (PDF)
Petition for Rehearing (PDF)
Petition for Review (PDF)

People v. Riley – 2/19/2015

People v. Riley

No. D059840 (opn 2/19/2015, petn for rev pending, S225382)

Year: 2015
Errors: Selective vs. Whole-Record Review
Court: 4th District, Div 1
Errors Found/Argued: Errors not found by another court

rileySummary: This case came back to the Court of Appeal on remand from the US Supreme Court (Riley v Cal.) after a finding that the warrantless search of an arrestee’s cell phone violated the 4th Amendment. The court found the 4th A violation was harmless error.  It properly stated review under the Chapman standard was appropriate but then misapplied the standard by ignoring defense-favorable evidence, including the facts that the first trial resulted in a hung jury and that the eyewitnesses to the shooting excluded D. Rather than conducting the analysis described in Chapman (requiring the court to review the entire record to determine whether the state proved the error was harmless beyond a reasonable doubt) , the court seemed to review the record for substantial evidence to support the conviction. This petition challenges the flawed process used by many CA appellate courts when conducting harmless error analysis under Chapman. Linked documents include an amicus letter supporting grant of review; the letter lists many recent examples of flawed Chapman analysis.

Document Links:
Opinion (Google Scholar)
Opinion (PDF)
Petition for Rehearing (PDF)
Petition for Review (PDF)
Amicus letter supporting review (PDF)
Motion for Judicial Notice (PDF)

People v. Montoya – 1/7/2015

People v. Montoya

B243042 (opn 1/7/2015, rev den 4/15/2015 (No. S224457), cert den 10/5/2015 (No. 15-5194))

Year: 2015
Errors: Selective vs. Whole-Record Review
Court: 2d District, Div 4
Errors Found/Argued: Errors not found by another court

Summary: After finding that the trial court should not have permitted Montoya to be convicted of first degree murder on natural and probable consequences theory (Chiu error), court of appeal found the erroneous instruction harmless beyond a reasonable doubt (under Chapman v. California) by positing a false dichotomy – since D said she did not know co-D intended to shoot anyone, guilty verdict on minor charge indicates that jury believed snitch, not D – and by ignoring a lot of evidence in the record from which jury could have had a reasonable doubt about guilt. Petitions for rehearing, review, and cert were denied; re the petition for review, the CA Supreme Court granted a motion for judicial notice of 12 other review petitions presenting similar errors.

Document Links:

People v. Lewis – 7/14/2014

People v. Lewis

No. B241236 (opn 7/14/2014; rev den 10/15/2015 (S220153); cert den 2/23/2015 (14-7363))

Year: 2014
Errors: Prejudice: Selective vs. Whole-Record Review
Court: 2d District, Div 1
Errors Found/Argued: Errors not found by another court
Summary: Court of Appeal found Chiu instructional error harmless beyond a reasonable doubt, citing only evidence supporting the judgment and ignoring other evidence and prosecutorial argument.

Document link:
Court of Appeal opinion (Google Scholar)
Court of Appeal opinion (PDF)
Petition for Review (PDF)
Petition for Certiorari (PDF)

People v. Aguilar – 1/29/2013

People v. Aguilar

No. F061462 (opn 1/29/2013, rev den 5/15/2013)

Year: 2013
Errors:
Facts: Error/Omission
Selective vs. Whole-Record Review
Appellate Factfinding
Court: 5th District
Errors Found/Argued: Errors not found by another court

Screen Shot 2015-03-05 at 9.37.38 PMSummary: The Court of Appeal found “any possible” Confrontation Clause error harmless under both Chapman and Watson. But analysis was limited to a list of evidentiary items supporting the murder judgment and a finding that defendant’s credibility was “conclusively undermined[.]” (Opn at 67-68.) Missing entirely from the analysis and the rest of the opinion: any acknowledgment that (a) the jury followed 5 court days of evidence with 4 such days in deliberation; (b) during the latter period jurors requested 7 testimony read backs; (c) after 6 hours of deliberation, the jury announced it was deadlocked; and (d) the testimonial hearsay at issue was the only evidence directly undermining defendant’s alibi testimony. The harmless error analysis also relied on factual assertions unsupported by the record (e.g., that the defendant was “seen walking away from” the burning room where the death occurred) and omission of defense-favorable evidence. Defendant identified these errors and others in petitioning for both rehearing and California Supreme Court review; both petitions were summarily denied. Note: The CSC granted defendant’s motion for judicial notice as to other recent DCA opinions violating harmless error standards.

Document Links:
Court of Appeal Opinion (PDF)
Court of Appeal Opinion (Google Scholar)
Petition for Rehearing (cited record material available upon request info [at] calapperrors [dot] com)
Petition for Review (see pp 1-2, 4-16; cited record material available upon request info [at] calapperrors [dot] com)
Motion for Judicial Notice

 

 

People v. Garcia – 8/31/2011

People v. Garcia

No. E051761 (opn 8/31/2011; rev den 11/22/2011)

Year: 2011
Errors:
Facts: Error/Omission
Law: Error/Misstatement
Prejudice: Selective vs. Whole-Record Review
Court: 4th District, Div 2
Errors Found/Argued: Errors found by another court

Summary: A police officer read defendant his Miranda rights, then asked defendant, “Now having [those rights] in mind, do you wish to talk to me?” Defendant answered, “No,” but the officer kept questioning defendant and ultimately obtained a confession. The Court of Appeal held that, in context, “No” didn’t mean “No”; i.e., it was ambiguous and so didn’t amount to an assertion of defendant’s Fifth Amendment right to silence. The court added that even if it was constitutional error for the jury to hear the almost four-hour recorded interrogation, the error was harmless. The CA Supreme Court denied review. But in a federal habeas proceeding, the district court and Ninth Circuit reversed, holding the Court of Appeal decision was both contrary to and an unreasonable application of established United States Supreme Court law; it was also based on an unreasonable determination of the facts. And in finding harmless error, the Court of Appeal unreasonably ignored the prosecutor’s reliance on the confession in arguing to the jury.

Document Links:
Court of Appeal Opinion  (Google Scholar)
9th Circuit Opinion (808 F.3d 771; Google Scholar)
9th Circuit Opinion (PDF)

 

People v. Mil – 6/17/2010

People v. Mil

No. F056605 (opn 6/17/2010, rev gr 9/29/2010, S184665)

Year: 2010
Error: Selective vs. Whole-Record Review
Court: 5th District
Errors Found/Argued: Error found by another court

Summary: In People v. Mil (2012) 53 Cal.4th 400, the California Supreme Court – after agreeing with the Court of Appeal that the jury hadn’t been properly instructed on felony-murder special circumstances and that the trial error was subject to Chapman harmless error review (id. at 405, 408-417) – held that the Court of Appeal’s “analysis of the prejudicial effect of the instructional error suggests that it may have relied instead on the less demanding standard of whether that finding was supported by substantial evidence. The Court of Appeal’s discussion focused exclusively on evidence that was favorable to the verdict ….” (Id. at 417.) “[O]ur task in analyzing the prejudice from the instructional error is whether any rational factfinder could have come to the opposite conclusion.” (Id. at 418, original italics.) The instructional error therefore required reversal. (Id. at 418-419.)

Document Links:
Court of Appeal opinion (Google Scholar)
California Supreme Court opinion (Google Scholar)