Summaries of Published Opinions
| Publication year | 2022 |
| Pages | 78 |
March 3, 2022
2022 COA 27. No. 19CA0011. People v. Licona-Ortega. Fourth Amendment—Exigent Circumstances—Search Warrant—Jury—Batson Challenge—Prosecutorial Misconduct.
During an altercation at a bar, defendant shot the victim in the head multiple times and then left the crime scene. The victim died from the gunshot wounds. Police officers set up surveillance at an address where they had contacted defendant about a week before the shooting, and the homeowner allowed them to enter the residence. A witness there allowed officers to look at text messages from defendant that were on her phone, which had been sent from the same cell phone number for defendant that police had in their internal records. Police then obtained a warrantless ping of defendant's cell phone from his cell phone carrier to determine his location. Defendant was located, arrested, and confessed to the murder. He moved to suppress all evidence obtained from the warrantless ping of his cell phone. The trial court denied the suppression motion, and a jury convicted him of first degree murder.
On appeal, defendant argued, based on the Fourth Amendment, that the trial court erroneously denied his motion to suppress all evidence arising from the warrantless ping of his cell phone to determine his whereabouts. There is an exception to the warrant requirement when exigent circumstances necessitate immediate police action. To meet this exception, the prosecution must prove (1) the existence of probable cause and (2) an exigent circumstance justifying a warrantless search. As relevant here, exigent circumstances exist where there is a colorable claim of an emergency threatening the life or safety of another. Here, it was reasonable for the police to believe that defendant had committed a serious crime and that real-time location information from his cell phone would reveal his location. Accordingly, the police had probable cause to request a ping of defendant's cell phone. Further, based on the circumstances, including the grave and violent nature of the offense and the fact that no gun was found at the crime scene, police had reasonable grounds to believe that the public was endangered so long as defendant remained at large. Therefore, exigent circumstances justified the warrantless ping of defendant's cell phone, and the trial court correctly denied defendant's motion to suppress.
Defendant also argued that the trial court reversibly erred by denying his challenge under Batson v. Kentucky, 476 U.S. 79 (1986), for the prosecution's peremptory challenge of Juror 83. However, the court's determination that defendant did not prove by a preponderance of the evidence that Juror 83 was excluded because of race is supported by the record. Accordingly, the trial court did not clearly err by denying the Batson challenge.
Lastly, defendant contended that prosecutorial misconduct deprived him of a fair trial. Here, the jury was properly instructed on all elements of the crime, and any inartful arguments made by the prosecutor were either harmless or the judge instructed the jury to disregard them. Therefore, the prosecutor did not commit reversible misconduct.
The judgment of conviction was affirmed.
2022 COA 28. No. 19CA1308. People v. Martinez. Criminal Theft—Proximate Cause—Restitution—Insurance Company—Victim.
Defendant stole the victim's bicycle out of the victim's garage. The victim got into his car and chased defendant. The victim caught up with defendant and pulled in front of him to get him to stop. Instead of stopping, defendant ran into the victim's car with the bicycle. Defendant got off the bicycle, walked up the street, got into another car, and drove away. The victim recovered the bicycle, which was undamaged, but the collision resulted in damage to the victim's car.
The prosecution charged defendant with second degree burglary, criminal mischief, and violation of bail bond conditions. Defendant entered into a plea agreement by which he agreed to pay restitution for damages caused by the theft. The prosecutor filed a motion for restitution for the costs of repairing the victim's car. After a hearing, the court ordered defendant to pay the requested amount of restitution—$500 to the victim for his insurance deductible and the remaining $1,893.84 to the victim's insurer, GEICO, which had covered the victim's loss.
On appeal, defendant contended that the district court erred by determining that he was the proximate cause of the damage to the victim's car because the victim's conduct constituted an independent intervening cause. He maintained that the victim's behavior was grossly negligent and thus not foreseeable. However, the evidence presented at the hearing demonstrated that it was not grossly negligent as a matter of law for the victim to turn in front of defendant, because the victim anticipated that his actions would stop the theft. Moreover, because the victim's pursuit of the thief was foreseeable, it was also foreseeable that the victim would take steps to recover his bicycle when he reached the thief, such as trying to force him to stop. Therefore, the district court did not abuse its discretion by determining that defendant was the proximate cause of the damage to the victim's car.
Defendant also argued that the district court erred by awarding restitution to GEICO. The 2000 amendments to the restitution statutes did not alter prior case law allowing insurance companies that indemnify their policyholders for losses proximately caused by felonies, misdemeanors, or other offenses specified in the restitution statutes to obtain restitution from offenders. Here, GEICO was a "victim" because it paid the cost of repairing the damage to the victim's car above the $500 deductible. Therefore, the court did not err.
The order was affirmed.
2022 COA 29. No. 20CA1109. In re Marriage of Sheehan. Family Law—Remedial and Punitive Contempt Sanctions—Ability to Pay—Maintenance—Voluntary Underemployment —Post-Dissolution of Marriage.
Wife and husband were divorced in 2014. Their separation agreement provided that husband would pay wife $18,419.50 for property division equalization within 48 months of the entry of the decree and $5,300 in monthly spousal maintenance until she reached age 67. Shortly thereafter, husband filed a motion to modify maintenance, asserting that his position had been eliminated and he was unlikely to find a new job at comparable pay. The court denied the request but retroactively modified the maintenance obligation while husband got his new business established. Husband immediately fell behind on his obligations and wife filed six contempt motions between August 2015 and lune 2018 for his noncompliance. Husband was found in contempt each time and was ordered to pay arrearages and attorney fees. At the sentencing hearing on the fifth contempt motion, wife requested that husband be incarcerated. Husband was incarcerated for a short period of time before he paid and purged the contempt.
In 2019, husband filed his second motion to modify maintenance. He noted the lengthy history of contempt motions and orders and that wife had begun garnishing his wages, but the garnishment was not sufficient to meet his monthly obligations. Husband alleged that he had been unable to obtain employment at the salary he was making when he agreed to the original maintenance obligation...
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