CALIFORNIA CASE LAW UPDATE – Selected California Cases
California Supreme Court (April 1, 2007-April 30, 2007)
People v. Cage (4/9/2007, S127344) 40 C4th 965: Statements that assault victim made to the officer in the emergency room while awaiting treatment an hour after incident were testimonial, thus inadmissible hearsay under Crawford v. Washington (2004) 541 U.S. 36. The officer asked victim what occurred between him and the defendant, and not to assist emergency medical personnel but to obtain a fresh account of past events involving defendant as part of an inquiry into possible criminal activity. However, where the emergency room doctor asked the victim, “What happened?” to help diagnose nature of wound and determine appropriate treatment, the victim’s statements in response to the physician’s question were nontestimonial and not barred by Confrontation Clause. (See Davis v. Washington (6/19/2006, 05–5224, 05–5705) ____ US ____ [165 LEd2d 224; 126 SCt 2266].)
People v. Superior Court (Vidal) (4/12/2007, S134901) 40 Cal. 4th 999: A pretrial ruling that defendant is mentally retarded and thus not subject to the death penalty is appealable. (See Atkins v. Virginia (2002) 536 US 304.) In determining whether defendant is mentally retarded under PC 1376, which defines retardation as “the condition of significantly subaverage general intellectual functioning existing concurrently with deficits in adaptive behavior and manifested before the age of 18,” trial court need not give primary consideration to the defendant’s full scale intelligence quotient, or FSIQ, score in assessing general intellectual functioning. A score below 70 or 75 will generally be considered subaverage. In determining whether retardation was manifested before the age of 18, court need not give primary consideration to tests administered before that. PC 1376 places burden on the defendant to establish his retardation by a preponderance of the evidence. In reviewing the trial court’s finding that the defendant is mentally retarded, the appellate court must first determine de novo whether the trial court has correctly interpreted the statute, and if so, must then determine whether the finding is supported by substantial evidence. In finding that defendant was mentally retarded, trial court did not err in giving less weight to fact that his Full Scale tests were generally above the range considered to show mental retardation and greater weight to other evidence of significantly impaired intellectual functioning, including Verbal Intelligence Quotient scores on Wechsler IQ tests in the mental retardation range.
Grants Of Review:
People v. Salinas REV GTD (3/28/2007, S150293) 146 CA4th 958: Briefing deferred pending decision in People v. Geier, S050082, an automatic appeal, which includes an issue as to the admissibility of laboratory reports in light of the high court’s decision in Crawford v. Washington (2004) 541 US 36.
People v. Banchon REV GTD (4/11/2007, S149634) 2006 Cal. App. Unpub. LEXIS 11309: Briefing deferred pending decision in People v. Palacios (5/11/2005, S132144) 126 CA4th 428, which presents the following issue: Does the multiple punishment bar of PC 654 apply to sentence enhancements generally and, in particular, to the enhancement under PC 12022.53(d), for the personal and intentional discharge of a firearm resulting in death or great bodily injury?
People v. Costello REV GTD (4/11/2007, S150173) 146 CA4th 973: Briefing deferred pending finality of the decision in People v. Giles (2007) 40 C4th 833, which concerns the doctrine of forfeiture by wrongdoing.
Barnett v. Superior Court REV GTD (4/25/2007, S150229) 146 CA4th 344: (1) Is a defendant seeking post-conviction discovery under PC 1054.9 required to produce evidence indicating that the discovery material he or she is requesting actually exists? (2) Does an out-of-state law enforcement agency become part of the prosecution team for the purposes of the disclosure obligations under Brady v. Maryland (1963) 373 US 83, if that agency’s involvement is limited to providing the prosecution in the current case with previously existing records regarding prior crimes of the defendant?
Status: Chambers v. Superior Court (8/16/2006, S143491) 2006 Cal. App. Unpub. LEXIS 3874: The court limited the issues to be argued to the following issue: Is derivative information developed after Pitchess (Pitchess v. Superior Court (1974) 11 C3d 531) disclosure in an earlier case subject to a protective order under EC 1045(e), when a later defendant, represented by the same attorney as the first defendant, files a Pitchess motion regarding the same law enforcement officer and obtains the name of the same complainant?
Status: In re Hardy (4/18/2007, S093694) [related to People v. Hardy (1992) 2 C4th 86]: In re Hardy (S022153) and In re Hardy (S093694) have been consolidated for purposes of oral argument and opinion, and parties have been directed to confine their arguments to the following issues raised by the allegations in In re Hardy, S093694: (1) Is petitioner entitled to reversal of his guilt judgment because he is innocent of the capital crimes of which he was convicted, in that a third party committed the murders; (2) Did petitioner’s trial counsel render constitutionally ineffective assistance of counsel by failing to present evidence demonstrating possible third party culpability and, if so, does such ineffective assistance require reversal of either the guilt or penalty phase judgments?
California Courts of Appeal (March 7, 2007-April 30, 2007)
People v. Sun (3/7/2007, G035328; G036443) 148 CA4th 374: Trial court erred in “merging” 10 counts of violating PC 12020(a)(2), possession of large-capacity magazines, in violation of PC 12001(1).
People v. Dixon (3/8/2007, E038509) 148 CA4th 414: Judge erred in failing to apply proper standard in evaluating media’s request to televise proceedings and failing to give adequate consideration to factors in California Rules of Court, rule 1.150. Error harmless because defendant could not show prejudice. Defendant was entitled to victims’ contact information under Civil Discovery Act (Code Civ. Proc. sec. 2016 et seq.) but failed to make a timely demand as required under the Act.
People v. Jenan (3/23/2007, F049153) 148 CA4th 1144: Judges failed to follow correct procedures to determine defendant’s mental competence.
People v. Castro-Vasquez (3/26/2007, B192721) 148 CA4th 1240: After finding that appellant would not have pleaded guilty if he had been informed of immigration consequences, trial court held that he had failed to show that result would have been different. Held, the court used the wrong test of prejudice. In re Resendiz (2001) 25 Cal.4th 230 requires the defendant to show that he would not have pleaded guilty and would have gone to trial, not that he would have prevailed.
In re DeShaun M. (3/27/2007, A114385) 148 CA4th 1384: Juvenile failed to show prejudice from use of shackles, so judge’s failure to make any findings supporting their use was harmless, even though it is considered “an affront to human dignity,” and may affect a defendant’s decision to take the stand. (People v. Fierro (1991) 1 C4th 173, 219.) Here, the minor took the stand, and the judge allowed one hand to be released so that minor could write notes to counsel.
People v. Racy II (3/27/2007, C052783) 148 CA4th 1327: Trial court erred in refusing to instruct on lesser included of elder abuse under circumstances not likely to result in death or great bodily injury. Defendant’s argument that there was insufficient evidence of felony elder abuse (likely to result in GBI or death) rejected, because it was not only the use of the stun gun on the victim’s leg, but the overall struggle, which could have resulted in the 74-year old diabetic victim falling and breaking a bone. Fact that DA focused only on the stun gun does not matter, because a jury may consider all the circumstances or conditions, and is not limited to one act.
People v. Rosen (3/27/2007, C048139) 148 CA4th 1311: You know the defendant will lose when the appellate court starts by saying, “… George Rosen disrespected both this badge and the women he sexually abused while on duty as a police officer.” Evidence of uncharged sex offenses properly admitted under Evidence Code section 1103. Conviction of assault under color of authority (PC 149) affirmed against claim that because defendant did not touch the victim, but instead ordered her to touch him, there was no assault.
Barragan v. Superior Court (3/28/2007, C054719) 148 CA4th 1478: California’s statutory scheme governing accusatory pleadings does not preclude prosecutor from amending information to allege aggravating facts for sentencing purposes, so demurrer to amended information properly overruled. Because in order to comply with Cunningham v. California (1/22/2007) 549 US _____ [166 LEd2d 856; 127 SCt 856], an aggravating fact must be charged in the accusatory pleading (Citing Apprendi v. New Jersey (2000) 530 US 466, 476, 494, fn. 19; Jones v. United States (1999) 526 US 227, 243, fn. 6), and courts must construe statutes to preserve their constitutionality, PC 952 and 952 are construed to permit such allegations to be pleaded. A contrary construction would create an absurd result because the prosecution would be unable to comply with the Cunningham holding. In addition, prosecution is not precluded from amending information because those facts were not presented at the preliminary hearing because an aggravating fact is not an “offense” within meaning of PC 1009.
People v. Baughman (3/29/2007, C050147) 149 CA4th 22: Because government charged one count of incest and presented evidence of at least two specific instances and testimony that it occurred weekly for about nine months, unanimity instruction was required. However, failure to give CJ 4.71.5 was harmless.
People v. Albarran (4/2/2007, B185547) 149 CA4th 214: Where prosecutor’s theory in this murder trial was that the defendant shot the victim to gain respect from the gang he allegedly belonged to, the court erred in admitting evidence about the identities of other members of the gang, the wide variety of crimes they had committed, the numerous contacts between the various gang members other than defendant and the police, and a specific threat the gang had made in its graffiti to kill police officers as well as references to the Mexican Mafia. At best, this evidence was only tangentially relevant and as a result was irrelevant and prejudicial. (See People v. Cox (1991) 53 C3d 618, 660.) The evidence that was introduced went beyond proof of defendant’s gang involvement and had no bearing on issue of motive and intent for underlying charges. The error was prejudicial, requiring new trial on all charges.
In re Prescott (4/3/2007, D047936) 149 CA4th 243: Defense counsel violated the attorney-client privilege by revealing to the court and prosecutor, in a written report, a number of statements the defendant made to him during the course of an interview, including his feelings regarding the circumstances under which he entered his guilty plea and the time pressure he felt. The defendant’s failure to object to the disclosure of privileged communications did not amount to waiver of the privilege where it was defendant’s own attorney who intentionally violated his privilege, leaving him without the assistance of counsel. The defendant was effectively deprived of the assistance of counsel when his appointed counsel not only failed to advocate on his behalf, but advocated against his interests. “Such complete deprivation of counsel is one of the rare circumstances in which prejudice to the defendant is presumed, and reversal is required.”
People v. Herndon (4/3/2007, B183711) 149 CA4th 274: Defendant’s due process rights were violated where, at trial court’s direction, five sheriff’s deputies wrestled the defendant to the ground, pried open his clenched fists, and took his fingerprints after he refused to comply with the court order to submit to fingerprinting. (See Rochin v. California (1952) 342 US 165, 174; see also People v. Sanders (1969) 268 CA2d 802, 804-805.) The error was not prejudicial where the defendant was the one who brought the incident to the attention of the jury, which knew nothing about it until defendant brought it up in his cross-examination of the deputy who took his prints and the prosecution’s expert witness.
People v. Kaplan (4/4/2007, G035385) 149 CA4th 372: Judge erred by refusing to conduct second competency determination nine months after original determination, and after defendant had jumped from the second tier of the jail and his attorney questioned his competence. Upon the presentation of substantial evidence showing substantial change in circumstances or new evidence giving rise to serious doubt about validity of original determination, regardless of presence of conflicting evidence, trial court must hold subsequent determination. Standard of proof for subsequent hearing is same as for original hearing. (People v. Rogers (2006) 39 C4th 826, 846 [trial court must conduct competency hearing when presented with substantial evidence of incompetence even if evidence is in conflict].)
People v. Salcido (4/4/2007, F050116) 149 CA4th 356: Modifications to CALCRIM 1400 by adding phrase “by either directly and actively committing a felony offense or aiding and abetting” accurately stated the law and did not undermine PC186.22(a) convictions, despite People v. Castenada (2000) 23 Cal.4th 743, 750 [defendant must “aid and abet a separate felony offense,” prosecution need not prove separate offenses other than the ones for which the defendant is being tried]. Jury instructions are not themselves the law and are not authority. At most, when they are accurate, they restate the law.
Berardi v. Superior Court (4/6/2007, D049444) 149 CA4th 476: Where defendant shows prejudice, he is entitled to a pretrial dismissal of his indictment under PC 939.71, which requires prosecution to inform grand jury about existence and nature of known exculpatory evidence, (see People v. Johnson (1975) 15 C3d 248, 253-354), and provides that portions of an indictment must be dismissed if nondisclosure of such evidence results in substantial prejudice. “Substantial prejudice” PC 939.71 is evaluated based on the standard of whether it is “reasonably probable” the outcome would have been more favorable to the defendant absent the prosecution’s failure to disclose. A de novo standard applies to the review of the trial court’s finding that there was no substantial prejudice. Defendant’s rights were substantially prejudiced in grand jury proceedings where the prosecution, in summarizing statements made by codefendant to police, omitted the codefendant’s statement that he was the only one responsible for killing the victim and that the defendant was not involved. Additionally, the prosecutor’s argument worded the codefendant’s statements in such a way that made them appear to directly corroborate a witness’s description of an agreement between the coconspirator and the defendant to kill the victim.
People v. Cooper (4/6/2007, A108723) 149 CA4th 500: U.S. district court ruling on convicted murderer’s writ of habeas corpus concluded that he was “entitled to a retrial on all of the charges against him” because a “Confrontation Clause violation” associated with the admission of an out-of-court statement of an unavailable witness “had a substantial and injurious effect on the jury’s verdict,” but did not determine that the jury verdict was unsupported by the evidence. Therefore, it was not a final verdict on the sufficiency of the evidence, and a retrial is not barred since neither the doctrines of collateral estoppel (see People v. Garcia (2006) 39 C4th 1070, 1077; People v. Vogel (2007) 148 CA4th 131, 136), nor law of the case (People v. Boyer (2006) 38 C4th 412, 441 [an issue decided in the same case, guides that case throughout], bar the defendant’s retrial on the murder charge. (People v. Burbine (2003) 106 CA4th 1250, 1261.) In re Cruz (2003) 104 CA4th 1339 held that neither collateral estoppel, nor double jeopardy bars retrial of the defendant who was convicted of murder, but then had his conviction vacated after habeas corpus proceedings which established that someone else was the killer, since the findings of the habeas court do not constitute an acquittal. Given the fact that the habeas proceedings did not decide the ultimate issues of fact, a retrial can go forward. (See People v. Santamaria (1994) 8 C4th 903, 926 [collateral estoppel]; see also In re Crow (1971) 4 C3d 613, 620 [double jeopardy]; People v. Orin (1975) 13 C3d 937, 944 [re: insufficiency issue].)
In re Alexander L. (4/9/2007, G036595) 149 CA4th 605: Expert testimony failed to establish “primary activities” element of enhancement of PC 186.22(f), where the witness merely testified he “knew” that the alleged gang had committed predicate crimes and did not give specifics or explain where, when, or how he had obtained that information. All three of the components of a gang enhancement requires proof of the three essential elements, (see People v. Vy (2004) 122 CA4th 1209, 1222), and they were not established in this matter. The expert did not directly testify that such crimes were the group’s primary activities and acknowledged that most of its crimes were graffiti-related; and was able to identify only two specific instances in which persons whom the witness believed to be members of the alleged gang were convicted of predicate crimes, including one instance in which the jury had rejected the gang enhancement. Since it was impossible to tell whether his claimed knowledge of the gang’s activities might have been based on unreliable hearsay, it will not support the gang allegation. (In re Nathanial C. (1991) 228 CA3d 990, 1003.)
People v. Weaver (4/9/2007, D047993) 2007 Cal. App. LEXIS 607: Court may impose a GBI enhancement where the GBI was for a different victim than the substantive count for which the defendant was convicted.
People v. Macklem (4/10/2007, D046806)149 CA 4th 674: Where the defendant was in custody at the time of a violent jailhouse assault, which was unrelated to the original offense committed outside of the jail, and he made incriminating statements as to both offenses to officer investigating the jailhouse event, such statements were not rendered inadmissible by the absence of Miranda warnings. The defendant was informed that the officer was only investigating the jailhouse incident, but spoke to the officer voluntarily in a conference room and was told he could terminate the interview and return to his cell if he wished. The officer concluded the interview once the defendant began talking about the original crime. Joinder (PC 954) of the original charge of first-degree murder with assault charge resulting from attack on fellow inmate was not an abuse of discretion (see People v. Osband (1996) 13 C4th 622, 666), nor was it so grossly unfair as to violate the right of due process where both charges were supported by evidence of planned and intentional violence, of the defendant’s perceptions of being threatened by his victims, and of his ability to control his actions, and where it was not likely that evidence of one offense was so inflammatory as to cause jurors to unfairly convict defendant of the other. (See People v. Mason (1991) 52 C4th 463 [re cross-admissibility]; see also People v. Carter (2005) 36 C4th 1114, 1154.) Where defendant was detained late at night but not booked into jail until after midnight, trial court correctly granted custody credit beginning with date of booking rather than date of detention. (See People v. Ravaux (2006) 142 CA4th 914, 919-921 [custody begins when the defendant is booked]; see also People v. Smith (1989) 211 CA3d 523, 526.)
People v. Gastello (4/13/2007, F050325) 149 CA4th 943: Defendant is not guilty of bringing drugs into jail, within the meaning of PC section 4573, if he or she entered the jail only due to being arrested and brought there in custody. The defendant did not have the intent, mens rea, to smuggle the drugs into the jail, when he was brought to the facility against his will.
People v. Banks (4/13/2007, G036873) 149 CA4th 969: Court’s finding that a combination of appellant’s prior criminal history and “recidivist-related factors” could not stand to support the upper term as the trier of fact did not find them true beyond a reasonable doubt. As a result, the matter was remanded to the trial court for resentencing to determine if the upper term is warranted based on proof of appellant’s prior criminal record alone.
People v. Bejarano (4/16/2007, B180922A) 149 CA4th 975: Where the defendant discharged a firearm at a vehicle, (PC 246), intending to shoot its occupants, but the bullet struck and killed an unintended victim, the driver of another vehicle. The court erred when it instructed the jury on second degree felony murder based on the underlying or predicate felony of discharging a firearm at an occupied motor vehicle. (See People v. Randle (2005) 35 C4th 987.) Given the fact that the defendant intended the shot causing death, the underlying felony merged with the resulting homicide. (See People v. Ireland (1969) 70 C2d 522; People v. Randle, supra.) Where substantial evidence supported the implied malice theory of murder, but the jury was erroneously instructed on felony murder as well as implied malice, the error was prejudicial as the jury might reasonably have concluded that the defendant acted without knowledge of the danger to, or without conscious disregard for, human life.
People v. Tower (4/17/2007, B188368) 2007 Cal. App. LEXIS 588: Conviction for oral copulation “by threatened retaliation” was not a “strike” under Three Strikes Law where record did not negate the possibility that the offense was classified as a felony solely because it was committed by threatening retaliation, in which case it was not a serious felony as defined by statute at time of defendant’s current conviction; prior to the passage of Jessica’s Law, Proposition 83. Additionally, where the defendant was convicted of burglary under a Tennessee statute defining that crime as entering another person’s residence with intent to commit an offense, and record of that conviction showed that the target offense was larceny, the offense was equivalent to a first degree burglary, in California, which qualifies as a serious felony.
People v. Carlin (4/26/2007, H028513) 2007 Cal. App. LEXIS 658: Sexually Violent Predators Act (SVPA) order is reversed as the prosecution’s reliance on hearsay evidence to prove predicate sexually violent offenses was a violation of due process.
People v. Krohn (4/28/2007, G036762) 2007 Cal. App. LEXIS 614: Where a police officer saw defendant carrying a beer can within gated apartment complex, the officer lacked reasonable suspicion to detain the defendant for illegally drinking alcohol in public. The term public place is a location readily accessible to all those who wish to go there. (People v. Perez (176) 64 CA3d 287, 301.) A location guarded by a fence or locked door is not readily accessible to the public and is not a public place. (See People v. White (1991) 227 CA3d 886, 892.) Evidence of drug possession acquired during the illegal detention was inadmissible and vitiated any subsequent consent to the interrogation and search. (Florida v. Royer (1983) 460 US 491, 501.)
Ninth Circuit Court of Appeal(March 23, 2007-April 30, 2007)
United States v. Boyd (3/23/2007, 9th Cir. No. 06-50051) 480 F3d 1178: Hobbs Act. Only minimal effect on interstate commerce required to uphold conviction.
United States v. Jackson (3/29/2007, 9th Cir. No. 05-30058) 480 F3d 1014: Using any reasonable definition of the word “travels,” defendant’s actions fell outside scope of 18 USC 2423(c) (punishing one who travels in foreign commerce and engages in illicit sex) because defendant did not travel to Cambodia to have sex with boys: he already lived there before Congress enacted the statute. His “travels” had stopped years before.
United States v. Moran (4/2/2007, 9th Cir. No. 05-30215) 2007 U.S. App. LEXIS 7560: Judge erred in refusing to admit co-defendant’s statements regarding expert opinions she had received from their CPA about the legality of their tax schemes. The error was prejudicial because it comprised a critical element of the Morans’ good faith defense. The testimony was not hearsay because it was not offered for the truth of the matter, but only for its effect on the defendants’ thinking. Court also failed to weigh the Rule 403 factors.
United States v. Heredia (4/2/2007, 9th Cir. No. 03-10585) 2007 U.S. App. LEXIS 7558 amended at 2007 U.S. App. LEXIS 9905: En banc Ninth Circuit declines to overrule United States v. Jewell (9th Cir. 1976) (en banc) 532 F2d 697 and holds that “knowingly” is not limited to positive knowledge but includes the state of mind of “those who don’t know because they don’t want to know.” But the court attempts to “clear away the underbrush that surrounds” Jewell. In doing so, it eliminates the requirement which some of the later cases had placed on Jewell, that the defendant have the motive to provide herself with a defense. All that is needed, the court holds, is that the defendant deliberately avoided learning the truth. A trial judge is free to modify the instruction at the request of a defendant. Here, the defendant did not ask the court to instruct that she did not act deliberately if she believed her failure to investigate was motivated by safety concerns.
United States v. Snellenberger (4/3/2007, 9th Cir. No. 06-50169) 480 F3d 1187: A minute order coupled with a charging instrument is not sufficient under Shepard v. United States (2005) 544 US 13 to establish a prior crime of violence for sentence enhancement. It is not a “judicial record that can be relied upon.”
Brazzel v. State of Washington (4/12/2007, 9th Cir. No. 05-36145) 2007 U.S. App. LEXIS 8385: Under doctrine of implied acquittal, when jury convicts on lesser alternate charge and fails to reach verdict on the greater charge without announcing any splits or divisions, and having had a full and fair opportunity to do so, jury’s silence on second charge is implied acquittal, and double jeopardy bars re-prosecution. (Green v. United States (1957) 355 US 184; Price v. Georgia (1970) 398 US 323.)