High Court again expands Apprendi, Jones, and Blakely doctrines.

In Shepard v. United States the United States Supreme Court again expanded the scope of defendant's rights with respect to what types of evidence are sufficient to support findings of certain prior convictions and the conduct that allegedly happened in those prior cases.

Click here for full case:

http://a257.g.akamaitech.net/7/257/2422/07mar20051115/www.supremecourtus.gov/opinions/04pdf/03-9168.pdf

The trial Court in Shepard found that the defendant had three or more burglary convictions and hence enhanced his sentence at the request of the Government. The Armed Career Criminal Act makes burglary a 'violent' felony if it is committed in a building, or enclosed space (i.e. a "generic burglary"), as opposed to a vehicle (the common distinction between first and second degree burglary in California). The trial court had attempted to enhance Shepard's sentence from 37 months to over fifteen years based upon materials found in police reports.

The Supreme Court disapproved this practice. Following Apprendi v. New Jersey, and Jones v. United States, the Supreme Court stated that in 'guilty plea' cases there are only certain types of records that can lawfully support a later specific factual findings of that offense. When attempting to prove a prior for purposes of enhancing a sentence, a transcript of the Rule 11/plea hearing, a written plea agreement, or some sort of on-record plea colloquy or factual basis must be the factual predicate or basis for proof of the facts of the prior.

Defense counsel must now attempt to factually limit and to be as circumspect as possible in their plea allocutions, whether in plea agreements or allocutions. In San Diego Superior Court (and California courts in general), defense counsel should no longer stipulate to the inclusion or incorporation by reference of police reports or transcripts of preliminary examinations as the factual basis to support pleas. This maxim is especially true in drug cases and violent offenses (or other strikes).

Chip Venie


Chip Venie is a criminal defense attorney in San Diego California. Mr. Venie has represented more than 600 defendants in state and federal criminal proceedings throughout California and the United States. Please call (619) 235-8300 for more information.

Another Booker Blakely win in Fourth Circuit

The Fourth Circuit gave reversed a 65 year sentence last week in United States v. Johnson. The Fourth Circuit found "plain error" because a jury failed to find facts in aggravation that amounted to impostion of an extra 32.25 years to Mr. Johnson's sentence. The Court also made some interesting rulings on Miranda issues.

See full case below:

http://caselaw.lp.findlaw.com/data2/circs/4th/034677p.pdf

Chip Venie, Esq.
Chip Venie was a staff attorney for the Fourth Circuit from 1999-2000. He is now in private practice in San Diego, California.

Blakely and Booker In California

Below is an excellent article on Blakely and Booker's impact in California state court.

http://www.fdap.org/downloads/blakely/BlakelyBookerFDAPJan2005seminar.pdf

Judge says woman "too pregnant" to keep kids!

March 3, 2005

JUDGE RULES, MOM “TOO PREGNANT” TO KEEP KIDS

SAN DIEGO, CALIFORNIA: When a divorced mother, with a live-in nanny and fiancé, becomes too pregnant to drive, she will lose her right to any visitation with her children. That is what Family Court Judge Patricia Garcia ruled yesterday, in a hotly contested child custody matter in Chula Vista.

Judge Garcia ruled that a young mother, Cynthia Venie, who is again pregnant with her fourth child, is the only person allowed to pick up her two daughters from their father’s home every other week. When it was explained to Judge Garcia that Ms. Venie had difficulty in the past with her pregnancies and that she might not be able to drive herself, the Judge ordered that she would lose her right to spend time with her two daughters from her first marriage.

“I was shocked by this order from the Court,” said Ms. Venie’s attorney, Jon M. Pettis, “It seems to suggest that because she is pregnant, she should have fewer rights as a parent. That is outrageous and discriminatory. The Court knows Ms. Venie has responsible adults in her home to assist her in caring for the children. The Court also has been informed that the father chooses to leave the children at homes where a convicted drug dealer and documented gang member lives and another, where a mother has been accused of failing to protect her own children from many years of sexual abuse.”

This was in the wake of earlier hearings where evidence was presented to the same Judge accusing Ms. Venie’s ex-husband, Noel Alfsen of sending nearly 20 threatening e-mail messages to Ms. Venie’s fiancé. In one of the emails, Mr. Alfsen allegedly threatened to “Laci Petersen” his former wife and her unborn child.” However, despite extensive testimony and evidence from Mr. Alfsen’s on-line provider showing he was using his e-mail at or near the time of all the messages, Judge Garcia refused to accept the e-mails into evidence and denied a request for a restraining order protecting Ms. Venie or her children.

“I’ll keep going to pick up my daughters as long as I can,” cried Ms. Venie. “It’s because I want to see them and raise them, but also, because I am also terrified about what can be happening to them when they are not with me. I just hope this doesn’t hurt the baby inside me.”

Judge Patricia Garcia: San Diego Superior Court, So. Bay, Dept. 8: (619) 691-4545
Mr. James Albert: (619) 440-7070, Attorney for Mr. Alfsen
Mr. Noel Alfsen: (619) 656-9549, Petitioner
Mr. Chip Venie: (619) 235-8300, Attorney / Respondent’s Fiancé

Capitol Sniper avoids execution as HIgh Court voids juvenile death sentence.

On March 1, 2005, the Supreme Court reversed 15 years of precedent and ruled, 5-4, that executing people for crimes they committed under the age of 18 is unconstitutional as against the "cruel and ununusal punishment" clause of the Eight Amendment.

This case appears to have far ranging impacts, but currently impacts between 78 and 84 prisoners on death rows nationwide. Probably the most prominent example of a juvenile who will not be exeucted as a result of this ruling is the case of John Lee Malvo, one of the infamous Capitol snipers. Because Malvo was 17 at the time of the killings, Virginia prosecutors have announced that they will not seek the death penalty as a result of yesterdays rulings.