Blog Jay Leiderman Law

Defendant was detained when the officer stopped behind his parked car and activated the emergency lights.  (350)
An officer investigating an emergency call of a fight in progress pulled his patrol car behind defendant’s parked vehicle and activated the emergency lights. He approached the car and saw defendant sitting behind the wheel, apparently intoxicated. A reasonable person would not have felt free to leave and defendant submitted to a show of authority by remaining in his car. Nevertheless, the detention was supported by reasonable suspicion given a reliable citizen’s report of a violent fight (potentially involving a firearm), the deputy’s quick response time and defendant’s presence near the scene of the fight in the otherwise unoccupied alley.
People v. Brown ____ Cal.4th ____, ____ Cal.Rptr.3d ____, 2015 D.A.R 8986 (2015) August 06, 2015 (S218993)

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The trial court abused its discretion by denying, as frivolous, the SVP’s petition for an unconditional discharge. 
Defendant was committed for an indeterminate terms as a sexually violent predator (SVP). The trial court abused its discretion by denying as frivolous defendant’s petition for unconditional release given his colorable showing that his diagnosis of paraphilic coercive disorder was not scientifically valid, and that his advancing age and medical condition make it unlikely that he will reoffend if released. The matter was remanded for an evidentiary hearing on defendant’s request.
People v. La Blanc ____ Cal.App.4th ____, ____ Cal.Rptr.3d ____, 2015 D.A.R 8451 (4th Dist. 2015) July 22, 2015 (E059589)

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Evidence supported the bribery convictions even absent evidence of a quid pro quo.  (264)
Defendants were convicted of multiple counts of bribery under Penal Code section 641.3. One was an insurance broker and the other a casino executive. Contrary to the defendant’s claim, the prosecution did not have to prove that any payment made to the casino executive was tied to a specific insurance transaction.
People v. Riley ____ Cal.App.4th ____, ____ Cal.Rptr.3d ____, 2015 D.A.R 8359 (4th Dist. 2015) July 21, 2015 (E059103)

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The magistrate erroneously ruled that the threatening rap lyric was protected speech as a matter of law.  (130) (221)
Penal Code section 140, subd. (a) makes it a crime to threaten a crime victim with violence. Here, alleged threats were made in the lyrics of a rap song distributed on the Internet. The magistrate erred by dismissing the complaint after the preliminary hearing. The magistrate ruled that as a matter of law the lyrics were protected speech and did not constitute a criminal threat within section 140. However, the question of whether the lyrics constituted a threat had to be determined by the trier of fact.
People v. Murillo ____ Cal.App.4th ____, ____ Cal.Rptr.3d ____, 2015 D.A.R 8401 (2nd Dist. 2015) July 22, 2015 (B257429)

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The prosecution sufficiently authenticated the incriminating photos on a cell phone even without testimony from anyone in the photos or present when they were taken. 

The minor argued the trial court erred by admitting incriminating photographs extracted from his cell phone [ photos on a cell phone ] because the photos were not properly authenticated – none of the subjects in the photos testified. However, the photos were properly authenticated by the investigating officers. The photos matched those on defendant’s Instagram account. And when he was arrested, he was wearing the same clothes and was in the same location shown in the photos, and he was with the other people in the photos.
In Re K.B. 238 Cal.App.4th 989 (2015)

photos on a cell phone

Stingrays – fake cell phone towers

Admission of Incriminating Photographs Extracted from Cell Phone

Over appellant’s objection, the prosecution entered into evidence photographs showing appellant, another juvenile, D.H., and Mendez posing with two handguns. Appellant contends that the trial court erred in admitting the photographs over his objection on the ground they were not properly authenticated because “none of the subjects appearing in the images testified, nor did anyone who was present at the time the photos were taken. Accordingly, there was no witness present at the time the images were created to establish that the [photographs] accurately depicted what they purported to depict — appellant and his co-minor, D.H., in possession of firearms.”

The general principles guiding the admissibility of photographic evidence over an objection that the evidence has not been properly authenticated were recently addressed by our Supreme Court in Goldsmith, supra, 59 Cal.4th 258.[4] “A photograph or video recording is typically authenticated by 995*995 showing it is a fair and accurate representation of the scene depicted. [Citations.]” (Id. at pp. 267-268.) This foundation may — but need not be — supplied by the photographer or by a person who witnessed the event being recorded; in addition, authentication “may be supplied by other witness testimony, circumstantial evidence, content and location” and “also may be established `by any other means provided by law’ ([Evid. Code,] § 1400), including a statutory presumption. [Citation.]” (Goldsmith, at p. 268.)

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