Sunday, July 14, 2019

Case o' The Week: When Push Comes to Shove, No Taylor Love - Perez, CPC Section 243(d), and Crimes of Violence

  Conduct that could send your client to a California prison for decades, on a felony strike

 Meh - just an “improbable hypothetical” in the Ninth.
 United States v. Perez, 2019 WL 3022334 (9th Cir. July 11, 2019), decision available here.

Players: Decision by Judge Ikuta, joined by Judge Paez and visiting Judge Siler. 
   Hard-fought appeal by ND Cal AFPDs Jerome Matthews and Elizabeth McKenna.

Facts: In 2017, Perez was convicted in a bench trial of being a felon in possession of a firearm. Id. at *1.
   Perez had previously been convicted of Cal. Penal Code § 243(d), battery resulting in serious bodily injury. Id. at *1. Over defense objection, the district court held that Cal. Penal Code § 243(d) was a crime of violence.    

Issue(s): “Aaron Perez’s appeal of his sentence for being a felon
in possession of a firearm and ammunition raises the question whether a prior state conviction for battery resulting in serious bodily injury, in violation of section 243(d) of the California Penal Code, qualifies as a ‘crime of violence’ as defined in § 4B1.2(a)(1) of the United States Sentencing Guidelines.” Id. at *1.  

Held: “We conclude that it does.” Id.
  “Like [California Penal Code] section 243(c)(2), section 243(d) requires proof of an element that § 242 does not . . . namely that ‘serious bodily injury is inflicted’ on the person of another, Cal. Penal Code § 243(d). Because ‘serious bodily injury’ is defined as ‘a serious impairment of physical condition,’ Cal. Penal Code § 243(f)(4), we must likewise conclude that a person cannot be convicted under § 243(d) ‘unless he willfully and unlawfully applies force sufficient to not just inflict a physical injury on the victim, but to inflict’ a severe physical injury. . . . As a result, section 243(d) ‘fits squarely within the term [crime of violence] by requiring the deliberate use of force that injures another.” Id. at *5 (internal citations and quotations omitted).

Of Note: Unfortunately for Mr. Perez, the Ninth had addressed a previous Cali battery statute that also required proof of significant injury. While battery in California can be accomplished by an unwanted touch, that slight intentional act plus the actual injury requirement pushed this statute over the COV line for Jude Ikuta.
  What is frustrating about this decision is that California appellate courts have described fact patterns that would be viable under this statute, that involve “eggshell defendants” -- a slight non-violent nudge of an elderly victim who falls and breaks a hip would suffice for a Section 243(d) conviction, but would not be a categorical match for the federal Taylor analysis.
  Judge Ikuta is unpersuaded by the California appellate courts and their “technical analysis” of California state law issues. “[I]mprobable hypotheticals,” she opines. Id. at *5.  [It is fun to imagine a County PD arguing Perez’s federal analysis to attack a § 243(d) conviction in a California court].
   Distressingly, the panel doesn’t discuss California cases where offensive touching did result in § 243(d) prosecutions. See, e.g., People v. Myers, (1998) 61 Cal.App. 4th 328 (victim yelled and poked at defendant and defendant pushed victim away defensively; victim slipped and fell on wet pavement and was injured); People v. Finta, 2012 Cal. App. Unpub. LEXIS 7488 (Cal. App. 1st Dist. Oct. 17, 2012) (defendant “shoved” a man on his bicycle when he thought that the cyclist had stolen his personal property; cyclist fell and was injured); People v. Hayes, 142 Cal. App. 4th 175 (Cal. App. 2d Dist. 2006) (defendant kicked a large ashtray, which fell over and hit an officer’s leg causing a cut and bruising) (in Section 243(c) conviction).
   Perez illustrates a growing problem with the Taylor categorical analysis: the “realistic probability, not a theoretical possibility” analysis is a mushy test that is very much in the eye of the appellate beholder.

How to Use: California defense folks, ever plead a client down to a Section 243(d) charge on facts that are not a clean match for the federal categorical analysis? Judge Murguia wants to know. 
  Well, maybe not literally, but in an insightful recent concurrence Judge Murguia calls for plea deals as evidence of the Taylor “realistic probability” analysis. See blog entry here
  Tough to find these examples, conceded, but an interesting avenue to explore.   
For Further Reading: Last week the Honorable Judge Daniel Bress was confirmed as the latest appointment to the Ninth Circuit. See article on Judge Bress here
  With his confirmation, the Ninth now has more jurists nominated by President Trump than any other circuit. See article here. 
  Three more Ninth vacancies remain to be filled by January 1, 2020. See Ninth Circuit vacancy report here 

Steven Kalar, Federal Public Defender, N.D. Cal. Website at


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Monday, July 08, 2019

Samayoa v. Davis, No. 18-56047 (7-3-19)(Fletcher w/Hurwitz; dissent by Watford). Note:  FPD AZ-CHU is involved.  The petitioner is on California’s death row.  His appeals are done, and he is at the end of the line, save for clemency.  He seeks appointment of the Az FPD as co-counsel to assist the state appointed counsel in clemency proceedings.  The district court had denied the appointment.

On appeal, the 9th reversed. The Supreme Court in Harbison v. Bell, 566 US 180 (2009) held that 18 U.S.C. § 3599 provides for federal appointment of counsel for death-row petitioners seeking federal relief. The subsection (e) extends the appointment to further proceedings, such as clemency. The 9th concludes, here, that a court can appoint additional counsel. In this case, the original appointed counsel has been representing the petitioner pro bono, has never done a clemency proceeding, and there are additional tasks and claims to be investigated and raised. He argued he needed the assistance of counsel.  In denying the request, the district court had reasoned that the petitioner had to return to the California Supreme Court for such appointment of additional counsel because he was already represented.  The 9th concluded that the statute allows for a federal court to appoint counsel. 

Dissenting, Watford argues that 3599 cannot be squared with Harbison.  Section 3599 requires only a showing of indigency; however, Harbison stated that a state appointed counsel may render the petitioner ineligible for appointment of counsel, because he has one and therefore arguably no longer indigent. 

The majority finds this reading too narrow. The majority’s reading of the statute permits appointment of one or more attorneys if the petitioner is “financially unable” to obtain adequate representation. Petitioner does not have to start a new inquiry into adequacy of representation, or go back to state court. Second counsel can be appointed even if the petitioner has representation through other sources.

The decision is here:

Saturday, July 06, 2019

Case o' The Week: BIA Goes Own Way - Betansos and Plea Bargains for Categorical Analysis "Realistic Probability"

  Let’s Make a Deal (part of the categorical analysis . . .)
Betansos v. Barr, 2019 WL 2896367 (9th Cir. July 5, 2019), decision available here.

Players: Decision by Judge Murguia, joined by Judge Bea and DJ Bastian.   

Facts: The Board of Immigration Appeals (“BIA”) found Betansos ineligible for cancellation of removal. Id. at *2. His previous conviction for indecent exposure, under California Penal Code § 3141(1), was held to be a crime involving moral turpitude (“CIMT.”) Id. at *1.
   In Nunez, the Ninth had previously reversed an unpublished BIA decision on this precise question, holding that this offense was not categorically a CIMT. Id. The BIA, however, revisited the issue in a published decision, Matter of Cortes Medina, 26 I & N. Dec. 79 (BIA 2013). Id. In Cortes Medina, the BIA contradicted the Ninth’s decision in Nunez and found that Cal. Penal Code § 3141(1) was categorically a CIMT – this time offering rationales for its decision.

Issue(s): “We must now decide whether to defer to the BIA’s more recent determination in Cortes Medina that a violation of § 3141(1) categorically constitutes a CIMT. If we defer to Cortes Medina, we must also decide whether we will do so retroactively.” Id.

Held: “[W]e conclude that we must defer to Cortes Medina pursuant to the framework [set forth in the Supreme Court’s decision in Brand X]. We also conclude that Cortes Medina applies retroactively in Betansos’s case. We therefore deny Betansos’s petition for review.” Id. at *2.
   “Reasonable minds can differ when deciding whether certain crimes are morally turpitudinous. Indeed, we did so in Nunez. However, pursuant to Brand X, we must defer to the BIA’s decision in Cortes Medina.” Id. at *8.

Of Note: The nub of this loss is Chevron deference to the BIA’s “categorical” categorization of indecent exposure as a CIMT. Id. at *5. It is a disappointing outcome, and there’s the sense that the Ninth isn’t too keen on the BIA’s determined effort to scoop up this offense as a CIMT.
   Of greater interest to criminal practitioners is Judge Murguia’s very thoughtful concurrence. Id. at *11 (Murguia, J., concurring). She acknowledges that the Supreme Court requires immigration petitioners to show a “realistic probability” that a statute is overbroad in its application and therefore not a categorical match. Id. (citing Duenas-Alvarez). Judge Murguia complains, however, that the BIA’s examples in its decision are decades-old. Id. Why are there so few published decisions to use in a categorical analysis? Because “[t]he vast majority – and nearly all –of criminal cases are resolved through plea bargains.” Id. Plea bargains don’t get published, so the BIA – and the Ninth – have no way to access how broadly a statute is really being used in the real world.
  Judge Murguia ends with a call to action: “Developing a mechanism for considering what conduct prosecutors charge and results in defendants accepting pleas may be particularly helpful in cases such as this one . . . .” Id. at *11.
  An intriguing invitation.

How to Use: Accept Judge Murguia’s invitation! The Taylor categorical goo largely exists because state D.A.’s, legislatures, and judges are too creative and too flexible when scooping in conduct – they (very) broadly interpret state criminal statutes to uphold convictions. Let’s add to that list the “hold your nose and down it goes” plea bargains as examples, when arguing that a state statute is overbroad for a categorical match. 
  Buddy up with your friendly state public defender, and start fishing for transcripts of plea deals illustrating the broad use of Taylor-contested state statutes. Under the Betansos concurrence, those plea transcripts will be welcome exhibits for federal categorical challenges.
For Further Reading: Judge Jay Bybee has announced that he is taking senior status at the end of this year. See article here
  If a nomination and confirmation makes it through, Judge Bybee’s position will be the tenth Ninth spot to be filled by President Trump.

Steven Kalar, Federal Public Defender N.D. Cal. Website at


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Tuesday, July 02, 2019

Martinez v. Ryan, No. 08-99009 (6-18-19)(M. Smith w/McKeown & Fletcher)(Note: This is an AZ CHU case).  The 9th affirms the denial of a capital habeas petition.  The petitioner, on probation at the time, was sentenced to death for the murder of a police officer in 1995. The 9th concluded that the petitioner’s judicial bias claim was procedurally precluded. The state had a procedure for judicial bias review, and the procedure was sufficiently adequate. The claim moreover was speculative, and as such there was no IAC. The 9th additionally denied the claims for inadequacy of the first-degree murder instruction, Brady, and IAC on failure to retain an expert to contest the state pathologist. The 9th did find error in the state supreme court employing a nexus test for mitigation, but there was no prejudice.

A tough appeal for Tim Gabrielson of the Az CHU (Tucson).

The decision is here:


Saturday, June 29, 2019

Case o' The Week: One Good Turn Deserves . . . a stop, a search, and a federal prosecution -- Guerrero and New Rule 12 motions on appeal

  How bad is the “good cause” appellate standard?
  By comparison, plain error looks good!

United States v. Guerrero, 921 F.3d 895 (9th Cir. Apr. 22, 2019), decision available here.

Players: Per curiam decision, with Judges Tashima, Watford, and District Judge Robreno. Hard fought appeal by CD Cal AFPD Gia Kim.

Facts: Guerrero was charged with being a felon in possession of a gun an ammo. Id. at 896. At the evidentiary hearing on a suppression motion, Guerrero, the driver, and officers testified. Id. The cops were credited, and the district court held that the driver’s failure to signal a turn provided a lawful basis for the stop. Id.
  Guerrero entered a conditional plea. Id.
  On appeal, Guerrero presented a new theory – that a driver only has to signal in California if another vehicle on the road is affected by the movement. Id. He argued that because the government had failed to introduce evidence that the alleged failure to signal affected another vehicle, the officers lacked a lawful basis for the stop. Id.
  That ground for suppression had not, however, been advanced in the district court. Id. at 897.

Issue(s): “Guerrero contends that we should align ourselves with the circuits that review untimely defenses, objections and requests for plain error.” Id. at 897.

Held:Were we writing on a blank slate, we might have been inclined to follow their lead. . . . . Nevertheless, as a three-judge panel, we may not forge our own path unless our prior precedent is clearly irreconcilable with the text and history of subsequent legislation or rulemaking.” Id. at 897-98. “[W]e cannot say that our prior precedent is clearly irreconcilable with the amended version of Rule 12. Rule 12(c)(3)’s good-cause standard continues to apply when, as in this case, the defendant attempts to raise new theories on appeal in support of a motion to suppress. Guerrero has not shown good cause for failing to present in his pre-trial motion the new theory for suppression he raises in this appeal. Nor has he challenged the district court’s rejection of the one theory that he did raise below. We therefore affirm the district court’s denial of his motion to suppress.” Id. at 898.

Of Note: It is unusual when the defense wants plain error, but that’s the case here. The nub of the fight is the standard under Federal Rule of Criminal Procedure 12(c)(3), when a party does not make a timely 12(b)(3) motion (like a suppression motion). The Fifth, Sixth, and Eleventh have held that the familiar plain error standard applies in that situation. Id. at 897. Other circuits review for the amorphous “good cause” standard. Id. In this per curiam decision, the panel sticks by Ninth precedent that concludes it is “good cause” (although there is the strong sense that they think the plain error approach is a better solution).

How to Use: Bring it in the district court, or face the “good cause” gauntlet on appeal. What motions are affected by this holding? Rule 12(b)(3) includes the following: “a defect in instituting the prosecution, including: improper venue; preindictment delay; a violation of the constitutional right to a speedy trial; selective or vindictive prosecution; and an error in the grand-jury proceeding or preliminary hearing; a defect in the indictment or information, including: joining two or more offenses in the same count (duplicity);charging the same offense in more than one count (multiplicity); lack of specificity; improper joinder; and failure to state an offense; suppression of evidence; severance of charges or defendants under Rule 14; and discovery under Rule 16.”
For Further Reading: Last week Senator McConnell filed a cloture motion on the nomination of Mr. Daniel Bress to the Ninth Circuit.  See Nomination report here. Senator Feinstein is not enthused. See Sen. Feinstein statement here   A vote on Mr. Bress’s nomination is expected after the July 4th recess. See here.

Image of turn signal from

Steven Kalar, Federal Public Defender. Website at


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Sunday, June 23, 2019

Case o' The Week: No Old Know, but Now New Knew - Benamor and Knowledge Requirements in Sec. 922(g)(1) Cases

   Taking antique shotguns for granted?
   Fine for the government.
   (Less fine with Vinnie Jones).
United States v. Benamor, 2019 WL 2375885 (9th Cir. June 6, 2019), decision available here.

Players: Decision by Judge Graber, joined by Judge Bybee and DJ Harpool.

Facts: Cops found a shotgun in a van which Benamor, a felon, had driven. Id. at *1. Benamor went to trial on § 922(g) charges. Id. at *2. 
  At trial, an agent testified the shotgun could not have been manufactured before 1915. Id. Benamor moved for a Rule 29 and for instructions that the government had to prove that he knew the gun was manufactured after 1898. Id.  The motions were denied and Benamor was convicted. Id.

Issue(s): “Because firearms manufactured in or before 1898 do not qualify as ‘firearms’ under § 922, Defendant argues that the district court erred by refusing to instruct the jury that, to convict, they had to find that Defendant knew that his firearm was manufactured after 1898.” Id. at *1. 
  “Although Defendant’s shotgun was old, it was not ‘antique’ within the statutory definition, because it was manufactured after 1898. Defendant does not dispute that his shotgun met § 921(a)(3)’s definition of a firearm. Yet he argues that the government was required to prove his knowledge that the shotgun lacked the antiquity that would have placed it beyond § 922(g)’s reach.” Id. at *2.

Held: “Every circuit to address the ‘antique firearm’ exception in the criminal context has held that the exception is an affirmative defense to a § 922(g) prosecution, not an element of the crime.” Id. at *3. 
  “We affirm.” Id. at *1.

Of Note: In addition to the “antique” holding, Benamor also has an interesting Confrontation Clause analysis. Id. at *4. In the guise of “effect upon a witness,” the AUSA elicited incriminating hearsay statements from Benamor’s landlord to the cop. Id. The AUSA then argued this hearsay in closing. 
  The Court finds a Confrontation Clause / Crawford error (although it declines to reverse). Id. at *5. Nonetheless, Benamor is useful to brush-back when an AUSA smuggles testimonial hearsay through an “effect on the hearer” theory.

How to Use: Benamor is, respectfully, wrong – at least as it recounts the elements of a federal gun case.
  Quoting the (now erroneous) Ninth’s en banc decision in Nevils, Judge Graber explains that “To convict someone under § 922(g)(1), the government must prove three elements:
  (1) the defendant was a felon;
  (2) the defendant knowingly possessed a firearm or ammunition; and
  (3) the firearm or ammunition ‘was in or affecting interstate commerce.’” Id. at *2.
  At least as of Friday, that list is missing an element. In the Rehaif decision delivered June 21st, Justice Breyer writes that in a § 922(g)(1) prosecution, “the word ‘knowingly’ applies both to the defendant’s conduct and to the defendant’s status. To convict a defendant, the Government therefore must show that the defendant knew he possessed a firearm and also that he knew he had the relevant status when he possessed it.” Rehaif v. United States, 2019 WL 2552487, at *2 (emphasis added), available here.
  Did Benamor’s indictment allege that he knew that he was a felon? Was the jury instructed that it had to find that Benamor knew he was a felon? Was there any evidence in this trial that Benamor knew of his status as a felon? No, no, and most likely, no.
   The Benamor decision happens to have a nice little discussion of “knowledge” in the context of § 922(g)(1) cases. See id. at *2 (discussing Beasley, 346 F.3d 930, 934 (9th Cir. 2003)); id. at *3 (discussing Staples). Glom these “knowledge” cases onto Rehaif’s “knew status” element –much mischief awaits.     
For Further Reading: Our gun cases are getting a hard Rehaif review this weekend. While mulling, remember the recent Ninth Circuit win in Bain. In Bain, Judge Tashima booted a deficient plea that was missing facts supporting an essential element -- a fact pattern that now resonates with hundreds of federal gun cases after Rehaif. See Bain blog entry here.
  Consider also James, 987 F.2d 648 (9th Cir. 1993) (reversing when gov’t failed to prove FDIC element in bank robbery trial), available here 

Image from “Lock, Stock, and Two Smoking Barrels” from

Steven Kalar, Federal Public Defender, N.D. Cal. Website at


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Monday, June 17, 2019

Kirkpatrick v. Chappell, No. 14-99001 (6-13-19)(Bea w/Wardlaw & Christen). The 9th affirmed the denial of a capital habeas. The case presented a convoluted procedural history, where the petitioner waived claims, and issues of petitioner’s competency were raised. At the original panel hearing the case had Reinhardt and Kozinski. In this opinion, the 9th held that aggravating evidence that the petitioner had threatened a neighbor and even poisoned dogs did not have a substantial or injurious effect on the jury’s decision. The 9th additionally held that petitioner failed to present clear and convincing evidence that rebutted the California Supreme Court’s finding that petitioner waived his state habeas exhaustion petition.

Hard fought appeal by Patricia Young and Mark Drozdowski, Deputy FPDs, FPD Cal Central (Los Angeles).

The decision is here: