CASE LAW UPDATE - Week ending 12-24-10

The following criminal cases of note were decided this week:

Washington State Law

Washington State Supreme Court:

State v. Wilson: The Court held that anticipatory offenses included in an offender score calculation under RCW 9.94A.525(4) must themselves be felonies in order to be calculated as such as part of the offender score calculation. Here, the trial court had erroneously included as a felony what was actually a conviction for a gross misdemeanor. In upholding the decision, the Court of Appeals reasoned that the anticipatory offense would have been a felony if completed. The Supreme Court found this to be in error and held that such a mistake is a legal mistake and therefore the petitioner is entitled to be resentenced under the correct offender score. http://www.courts.wa.gov/opinions/pdf/837970.opn.pdf

Division One Court of Appeals:

State v. Burns: The Court held that, when the State failed to hold a restitution hearing within 180 days of sentencing as required by the statute to determine the amount of restitution to be paid by Mr. Burns as a result of certain uncharged crimes, the trial court did not have statutory authority to determine or modify the amount of restitution after the expiration of the 180 day time period allowed for restitution to be set under RCW 9.94A.753(1). The Court reversed the restitution order. http://www.courts.wa.gov/opinions/pdf/63768-1.pub.doc.pdf

Division Two Court of Appeals:

In Re Detention of Alsteen: The Court affirmed a jury verdict finding that Mr. Alsteen is a sexually violent predator who should be civilly committed under the "Sexually Violent Predator Act," (SVPA) chapter 71.09 RCW. The Court held that the jury instructions were an accurate statement of the law and permitted the parties to argue their respective theories of the case to the jury, and did not prejudice Mr. Alsteen by improperly focusing on past crimes to which he had stipulated. Because the instructional challenge failed, the Court affirmed Mr. Alsteen’s commitment as a sexually violent predator. http://www.courts.wa.gov/opinions/pdf/37140-5.10.doc.pdf

Federal Law

Ninth Circuit Court of Appeals:

Pulido v. Hedgpeth: The Court found that erroneous jury instructions in Mr. Pulido’s state murder trial were not prejudicial as a matter of federal Constitutional law. The Court disagreed with Mr. Pulido’s contentions that the jury instructions on aiding and abetting felony murder and robbery, read together, impermissibly allowed him to be convicted of felony murder even if he did not form the intent to aid and to abet the robbery until after the murder. The Court found that despite a typographical error in the special circumstance instruction, which used the word “or” instead of “and” between its two prongs, thus enlarging the scope of activity that would qualify as robbery felony murder under the special circumstance. However, the court concluded that the instruction did not have substantial or injurious effect or influence in determining the jury’s verdict.

Judge Thomas dissented, arguing that the law was explained improperly in this case, and it could not be reasonably concluded that the error did not substantially and injuriously affect the verdict. The dissent reasoned that the instructions allowed for a conviction for felony-murder and a finding of special circumstance robbery-murder even if Mr. Pulido became a knowing participant only after the robbery and shooting were completed. The record left the dissent with “grave doubt” as to whether the erroneous instructions had a substantial and injurious effect on the jury’s verdict. http://www.ca9.uscourts.gov/datastore/opinions/2010/12/21/05-15916.pdf

United States v. Alvarez-Perez: The Court found that Mr. Alvarez-Perez was prosecuted for being a deported alien found in the United States in violation of the Speedy Trial Act (STA). The Court found that Mr. Alvarez-Perez’ trial was held outside the permitted 70-day period. However, because the government exceeded speedy trial by just two days, Mr. Alvarez-Perez was accused of a serious offense, there was no showing of governmental bad faith, and no showing that Mr. Alvarez-Perez would be prejudiced by a re-trial, the Court dismissed the action without prejudice. http://www.ca9.uscourts.gov/datastore/opinions/2010/12/22/09-50334.pdf