CALIFORNIA CASE LAW UPDATE – Selected California Cases
California Supreme Court (August 1-31, 2009)
People v. Martinez (8/13/2009, S064574) 47 C4th 399: Counsel – No Third-party Marsden Request:
Letter from defendant’s sister to court complaining about trial counsel’s lack of communication by praising him was not sufficient to require court to conduct Marsden hearing to determine if counsel should be replaced. Marsden protects a defendant’s right to counsel under Sixth Amendment and thus is personal to the defendant and ordinarily may not be asserted vicariously.
People v. Martinez (8/13/2009, S064574) 47 C4th 399: Jury Instructions – Willfully Untruthful Witness: Instruction concerning jury’s consideration of willfully untruthful witness, when applied to defendant’s testimony, did not shift burden of proof. DA’s argument did not shift burden. Instructions given to jury did not require jury to reject testimony but only stated circumstances under which it could do so.
People v. Moye (8/24/2009, S157980) 47 C4th 537: Sudden Quarrel/Heat Of Passion: To warrant an instruction on a sudden quarrel/heat of passion theory of voluntary manslaughter, there must be evidence that defendant killed while subjectively under the actual influence of a strong passion aroused by a provocation sufficient to cause an ordinary person of average disposition to act rashly or without due deliberation and reflection, and from this passion rather than from judgment.
Grants Of Review:
People v. Coon REV GTD (8/12/2009, S173359) 173 CA4th 258: Are faxed copies of certified court records admissible to establish that a defendant was on bail when he or she committed additional offenses and is thus subject to an enhancement under PC 12022.1?
In re A.G. REV GTD (8/12/2009, S173646) 2009 Cal. App. Unpub. LEXIS 3270: Briefing deferred pending decision in In re E.J. (10/04/2007, S156933) 2007 Cal. LEXIS 10947 which concerns whether the residency restrictions imposed by PC 3003.5 on persons required to register as sex offenders violate the ex post facto clauses of the state and federal Constitutions, have been impermissibly retroactively applied, constitute an unreasonable parole condition, impinge on substantive due process rights, or are unconstitutionally vague.
People v. Superior Court (Rampone) REV GTD (8/12/2009, S173290) 2009 Cal. App. Unpub. LEXIS 2997: Briefing deferred pending decision in People v. Superior Court (Sparks) REV GTD (9/17/2008, S164614) 2008 Cal. App. Unpub. LEXIS 4603, which presents the following issues: (1) Did principles of collateral estoppel, as applied in People v. Taylor (1974) 12 C3d 686, preclude the prosecution from trying defendant for murder on a felony-murder theory after the actual killer had been acquitted of murder on such a theory? (2) Is Taylor still good law, or should that decision be overruled or disapproved?
People v. Zambia REV GTD (8/19/2009, S173490) 173 CA4th 1221: (1) Does the offense of pandering require the specific intent to encourage another person to become a prostitute? (2) Can a defendant be convicted of pandering for offering to act as a pimp for a woman who appears to be already working as a prostitute?
People v. Aldana (8/19/2009, S174836) 174 CA4th 1025: Briefing deferred pending decision in Stark v. Superior Court REV GTD (9/13/2006, S145337) 140 CA4th 567, which includes the question whether the offense of misappropriation of public funds by a public officer or employee in violation of PC 424 requires intentional violation of a known legal duty or is a general intent crime.
People v. Mena REV GTD (8/26/2009, S173973) 173 CA4th 1446: Did defendant forfeit his right to appeal the denial of his request for a physical identification lineup prior to the preliminary hearing (see Evans v. Superior Court (1974) 11 C3d 617) because he failed to seek immediate review of the ruling by filing a petition for writ of mandate?
DISPOSITION
The court ordered review in the following case dismissed in light of People v. Medina (2009) 46 C4th 913:
People v. Martinez REV GTD (3/25/2009, S170016) 169 CA4th 199.
STATUS
People v. Albillar REV GTD (8/13/2008, S163905) 162 CA4th 935: The court requested the parties to file supplemental letter briefs directed to the question of whether the phrase “felonious criminal conduct,” appearing in PC 186.22(a), should be interpreted to mean felonious criminal gang-related conduct.
California Courts of Appeal (August 1-31, 2009)
People v. Cannedy (7/31/2009, ordered pub’d 8/25/2009, A120293) 176 CA4th 1474: Under PC 1424, there must be an actual likelihood of unfair treatment, not merely a subjective perception of impropriety, to warrant an order recusing the district attorney or the entire office.
People v. Thorn (7/31/2009, A121336) 176 CA4th 255: Carports Qualify As Structures For Purposes Of Residential Burglary: Vehicle burglary from a car parked in the carport under an apartment building was first degree residential burglary.
People v. Daniels (8/4/2009, H032497) 176 CA4th 304: The jury was properly instructed on kidnap of an incapacitated person. Appellant challenged the jury instruction that allowed the jury to find him guilty if he “used enough force to take and carry away an unresisting person with a mental impairment.” He contended that there was no legal authority to support the relaxation of the force requirement for kidnap where the victim is unconscious or incapacitated. The appellate court rejected that argument as well, finding that when a person is incapacitated or unconscious, the amount of physical force required for kidnap is merely the amount needed to carry the victim away. The instruction given was therefore proper.
People v. Nichols (8/5/2009, C057665) 176 CA4th 428: Is a Life Sentence For Failure To Register Cruel And Unusual Punishment? A life sentence for failure to re-register would be cruel and unusual where the police knew where the defendant was. The failure here, after moving to a new residence, meant that the defendant’s whereabouts were unknown for 8 months. A life sentence was thus OK.
People v. Bhasin (8/6/2009, E046137) 176 CA4th 461: Choice Of Counsel: Limitation: A defendant’s constitutional right to counsel of choice may be limited by the court’s authority to maintain the orderly process of justice under the circumstances.
People v. Hart (8/11/09, C057652) 176 CA4th 662: Natural And Probable Consequences And Premeditation: To convict a defendant of attempted premeditated murder under the natural and probable consequences doctrine, the jury must be instructed that attempted premeditated murder was a natural and probable consequence of the charged robbery. Codefendants Rayford and Hart entered a liquor store, and Hart showed a gun and demanded the clerk’s money. When Hart saw the clerk had a gun, he shot at the clerk, hitting him in the abdomen. Hart and Rayford were both convicted of attempted premeditated murder. On appeal, Rayford argued that the trial court erred in its natural and probable consequences instruction for aider and abettor liability (CALCRIM 402), because the jury was never instructed on natural and probable consequences in relation to the premeditation element. The Court of Appeal agreed, and reversed the premeditation finding. Under the Third District’s opinion in People v. Woods (1992) 8 Cal.App.4th 1570, the jury was legally allowed to find an aider and abettor (Rayford) guilty of a lesser crime than a perpetrator (Hart). Here, however, the instructions did not inform the jury that in order to find Rayford guilty of attempted premeditated murder even if Rayford did not intend that result, it was necessary to find that attempted premeditated murder, and not merely attempted murder, was a natural and probable consequence of the robbery. The general premeditation instruction did not suffice, because that focuses on a subjective state of mind, while natural and probable consequences requires an objective test (reasonable foreseeability). The error was prejudicial, because the jury may have found Rayford to have premeditated without finding either actual premeditation or the objective element required for natural and probable consequences.
People v. Luansing (8/11/2009, B210413) 176 CA4th 676: Sex Offender Registration – Hofsheier: Consistent with People v. Hofsheier (2006) 37 C4th 1185, that subjecting defendant to mandatory sex offender registration based on his conviction for oral copulation with a victim more than 10 years his junior and under the age of 16 violated equal protection. This court agreed with the rationale of People v. Ranscht (2009) 173 CA4th 1369, and rejected the analysis of People v. Manchel (2008) 163 CA4th 1108.
People v. Moore (8/11/2009, B207616) 176 CA4th 687: Statute Of Limitations – Government Fraud: In cases involving fiscal crimes against a government entity, the four-year statute of limitations does not start to run until the victim learns of the facts of the crime, with “victim” defined as a public employee occupying a supervisorial position who has the responsibility to oversee the fiscal affairs of the governmental entity and has a legal duty to report a suspected crime to law enforcement authorities.
People v. Neely (8/13/2009, B204851) 176 CA4th 787: Robbery: Constructive Possession By “Apprentice-Like” Employee: An employee was in constructive possession of the store’s property even though he was not an “official” or “formal” employee.
People v. Flores (8/17/2009, F055859) 176 CA4th 924: LIO – Battery By Prisoner On Non-Prisoner (PC 4501.5 Is Lesser Of Gassing (PC 4501.1): Battery by a prisoner on a nonprisoner (PC 4501.5), is a necessarily included offense of battery by gassing (PC 4501.1). A defendant may not be convicted of both the greater and lesser included offense within the meaning of PC 954 and People v. Ortega (1998) 19 C4th 686, 692 [the elements test; if a crime cannot be committed without also necessarily committing a lesser offense, the latter is a lesser included offense within the former.])
People v. Wallace (8/18/2009, A120500) 176 CA4th 108: Under former PC 290(a)(1)(A), as amended in 2006, providing that a sex offender “for the rest of his or her life while residing in California…shall be required to register with the chief of police of the city in which he or she is residing, or the sheriff of the county if he or she is residing in an unincorporated area or city that has no police department,” the prosecution is not required to prove the defendant’s exact new address or that he moved to a new location within the same county, but must prove that defendant moved to a location within California. The trial court’s failure to so instruct the jury was prejudicial.
People v. Adams (8/18/2009, G039967) 176 CA4th 946: Self-Defense Against Excessive Force By Citizen Making Arrest – Defendant Need Not Wait Until Excessive Force Is Actually Applied: Defendant’s conviction for battery causing serious bodily injury is affirmed, where the trial court did not give conflicting jury instructions on the right of self-defense and on citizen’s arrest, and thus did not violate Defendant’s due process rights.
People v. Rutterschmidt (8/18/2009, B209568) 176 CA4th 1047: Crawford – Lab Tech Evidence: In Melendez-Diaz v. Massachusetts (6/25/2009, No. 07-591) 557 US ____; [174 LEd2d 314; 129 SCt 2527), the U.S.S.C held that Massachusetts couldn’t use an affidavit from the criminalist to prove that the items were drugs, because that violates Crawford (541 US 36) and the confrontation clause. Here, there was no Crawford violation because the chief lab director at the coroner’s office testified to results obtained by four people he supervises, relying on their reports but the actual reports were not offered.
People v. Guerra (7/31/2009, pub’d 8/18/2009, H032881) 176 CA4th 933: Judicial Misconduct – Informing Jury That Their Verdict Was Inconsistent: The jury here returned guilty verdicts on the charges of offenses against multiple victims, but not true findings on the enhancements, one of which was that there were multiple victims. The trial judge improperly told the jurors that their verdicts were inconsistent, that they might wish to reconsider, and that they should find the multiple victim enhancement true. While it was true that the verdicts were inconsistent, there was an acquittal in open court and the defendant was entitled under state law (PC 1161: “when there is a verdict of acquittal, the Court cannot require the jury to reconsider”) and federal constitutional provisions (jury trial and double jeopardy) to benefit of acquittal, even if due to jury’s confusion. Trial court’s action was “in excess of its authority ….”
People v. Moberly (8/19/2009, F054954) 176 CA4th 1191: Homicide Jury Instructions – Dewberry: Court finds that People v. Dewberry (1959) 51 C2d 548 complied with, even though a “benefit of the doubt” instruction was not specifically given telling jury that if it had a doubt whether the killing was voluntary or involuntary it had to find it was involuntary. Finds case controlled by People v. Musselwhite (1998) 17 C4th 1216.
People v. Flores (8/19/2009, B204561) 176 CA4th 1171: Ex Post Factor – Changes In The Rules Of Evidence: Changes in admissibility of evidence do not violate the proscription against ex post facto application of laws. In 1994, appellant fatally shot the mother of his child, a woman with whom he had previously been involved, and shot and wounded her male companion. Appellant fled to Mexico, but returned to the United States in 2006, and was prosecuted for the crimes in 2007. At a first trial he was convicted of attempted premeditated murder of the male, and in a second trial which followed a mistrial, he was convicted of first degree murder of the woman. At this trial, evidence was introduced pursuant to EC 1109 that he had previously been convicted of misdemeanor spousal battery against a separate individual. Section 1109 had been enacted after the murder. The court gave CALCRIM 852, instructing the evidence could not be used as proof of the instant crime, but that the jury could only conclude from it that defendant was predisposed to domestic violence. The appellate court rejected appellant’s claim that admitting the evidence violated the prohibition against ex post facto laws – specifically, that it altered the legal rules of evidence resulting in order to convict the offender. Although the government is barred from changing rules involving the legal sufficiency of evidence, ex post facto principles do not bear on the admissibility of a particular piece of evidence bearing upon a particular fact to be proved. (People v. Brown (2004) 33 C4th 382.)
Miyamoto v. DMV (8/20/2009, H032987) 176 CA4th 1210: Drunk Driving – Use Of Report At DMV Proceedings: Lab report of driver’s blood test results was admissible under public employee records exception to hearsay rule, contained in EC 1280.
People v. Thrasher (8/21/2009, B209219) 176 CA4th 1302: Fraud – Promissory Note In Settlement Or Debt Is Not A “Loan:” Promissory note extended in settlement of past rent due was not a “loan” and therefore defendant did not violate FPPC regulations nor did he commit perjury. The agreement was the settlement of a debt, not a loan.
People v. Dungo (8/24/2009, C055923) 176 CA4th 1388: Crawford: Lab Tech Evidence– Autopsy Report: In light of Melendez-Diaz v. Massachusetts (6/25/2009, No. 07-591) 557 US ___ [174 LEd2d 314; 129 SCt 2527], the autopsy report was “testimonial” under Crawford v. Washington (2004) 541 US 36, because a California autopsy is an official inquiry into a death that could be criminally related, and is part of a law enforcement investigation. It did not matter that unlike Melendez-Diaz, the autopsy report here was not introduced into evidence. The report was formally prepared in anticipation of a prosecution, and “[t]his is the sort of evidence – cloaked in the authority of a medical examiner and inherently designed to aid criminal prosecution – that the United States Supreme Court has warned against exempting from Sixth Amendment protections.” Nor did it matter that the supervisor could be cross-examined, because the defense was still unable to explore the possibility that the pathologist lacked proper training or had poor judgment, so as to test his honesty, proficiency and methodology.
People v. Hovda (8/24/2009, C058800) 176 CA4th 1355: Gross Vehicular Manslaughter While Intoxicated – Conscious Indifference CALCRIM 590: Defendant claimed on appeal that by deleting the qualifying adjective “conscious” to the final reference to “indifference” in the last sentence of CC 590, the instruction failed to advise the jury that it had to find that defendant was consciously indifferent to the consequences of his conduct, which he concluded was an essential element of gross negligence. The court disagreed, noting that the expression in the instruction telling the jury that gross negligence exists “if a reasonable person would have known that acting that way would create” the requisite risk, was sufficient as it was virtually the same language as that contained in People v. Watson (1981) 30 C3d 290, 296, defining gross negligence.
People v. Hach (8/25/2009, C055692) 176 CA4th 1450: Merger (Ireland) – Assaultive Crimes And Homicide: The jury was instructed on second degree murder based on malice aforethought and felony murder with the predicate felony being shooting at an occupied vehicle (PC 246). Appellant was convicted of second degree murder and shooting at an occupied vehicle. The appellate court agreed that instruction on felony murder based on PC 246 was error. In People v. Chun (2009) 45 C4th 1172, the California Supreme Court reconsidered the merger doctrine jurisprudence (People v. Ireland (1969) 70 C2d 522), and found that when the underlying felony is assaultive in nature, the felony merges with the homicide and cannot be used as the basis for a felony murder instruction.
People v. Williams (8/26/2009, C059218) 176 CA4th 1521: Improper To Cite Depublished Case: “We note with concern that the prosecutor cited and the trial court seemed to be influenced by People v. Hargrove, an opinion that all parties knew had been ordered depublished by the California Supreme Court. (See Cal. Rules of Court, rule 8.1105(e).) We remind counsel that use of a depublished case for this purpose is absolutely prohibited by the California Rules of Court. (Rule 8.1115(a).)” …. “persistent use of unpublished authority may be cause for sanctions. (See Alicia T. v. County of Los Angeles (1990) 222 CA3d 869, 885.)”
People v. Williams (8/26/2009, C059218) 176 CA4th 1521: Claim Of Right Based On Accomplice’s Ownership OF Property May Negate Intent To Steal: A good-faith belief by a defendant, tried as an accomplice, that he was assisting his co-principal to retake the principal’s property, negates the felonious intent element of a theft-based offense, and a claim-of-right instruction must be given where substantial evidence supports such a belief. To be liable as a principal on an aiding and abetting theory, the accused must share the specific intent with the perpetrator. If substantial evidence is presented that the principal did not have the mental state for the crime of theft because he believed he was retaking his property, the same applies to the aider and abettor. Accordingly, the trial court erred in denying appellant’s request for instruction on claim-of-right.
People v. Shaw (8/28/2009, F054698) 177 CA4th 92: Statute Of Limitations: Child Molestation With Prior (PC 647.6(c)(2)): The one-year statute of limitations for a misdemeanor did not apply to child molest with a prior conviction.
People v. Shaw (8/28/2009, F054698) 177 CA4th 92: Child Molestation Mens Rea: In Shaw, the defendant argued that his offense against this particular 16-year-old minor was not motivated by a sexual interest in children as required by PC 647.6. The appellate court rejected the argument, finding that the statute does not merely protect children as a class, but protects any child from being annoyed or molested by an adult with an abnormal sexual interest in the child. Further, even if the mens rea requirement for a conviction required the jury to find that Shaw’s acts were motivated by interest in children generally, any error was harmless. The evidence established that Shaw had molested at least six children of various ages. The distinction between “child” and “children” in this case was a distinction without a difference.
Kling v. Superior Court (8/31/2009, B208748) 177 CA4th 223: Discovery – Transcript Of PC 1326 Hearing: DA entitled to notice of hearing held under PC 1326 to determine defense access to records it subpoenaed into court, but is not entitled to unseal reporters’ transcripts of the hearing.
People v. Tran (8/31/2009, G036560) 177 CA4th 138: Gang Expert – 1994 Conviction For Extortion: The trial court did not err in admitting evidence of appellant’s prior conviction for extortion.
People v. Tran (8/31/2009, G036560) 177 CA4th 138: Juror Misconduct: A juror expressed an opinion after trial that recidivists should be caned, as is done in Singapore. The appellate court found no necessary relation between certain attitudes towards punishment and an individual’s ability to be fair and impartial in the determination of facts.
People v. Tran (8/31/2009, G036560) 177 CA4th 138: Double Punishment – Street Terrorism And Murder: When sole basis for street terrorism conviction was either attempted murder of rival gang member or actual murder of bystander thought to be gang murder, sentencing on both street terrorism and murder cannot stand, as it violates PC 654. (People v. Vu (2006) 143 CA4th 1009.) Judgment modified to stay street terrorism sentence.
People v. Lopez (8/31/2009, D052885) 177 CA4th 202: Crawford – Lab Tech Evidence: Trial court erred prejudicially in admitting blood alcohol laboratory report without testimony from criminalist who actually tested it. (Crawford v. Washington (2004) 541 US 36; Melendez-Diaz v. Massachusetts (6/25/2009, No. 07-591) 557 US ____; [174 LEd2d 314; 129 SCt 2527] [testimonial hearsay evidence otherwise permitted at a trial may not be admitted in a criminal proceeding unless the declarant is unavailable and the defendant had a prior opportunity to cross-examine the declarant].)
9th Circuit (August 1-31, 2009)
United States v. Benford (8/3/2009, 9th Cir. No. 07-50210) 574 F3d 1228: Absence Of Counsel – Definition Of Critical Stage: Status conference is not a critical stage of the proceedings because if it has nothing to do with the merits of the case, and does not result in a resolution of any issue which could not easily be altered in the future.
United States v. Reyes (8/18/2009, 9th Cir. No. 08-10047) 577 F3d 1069: Prosecutorial Misconduct – Factual Misstatement In Closing Argument: Conviction reversed due to prosecutorial misconduct in making false assertion of material fact to jury in closing argument. “It was not, however, the defense’s burden to prove Reyes was innocent. It was the prosecutor’s burden to prove he was guilty. Defense counsel made no knowingly false statements. The prosecutor did. …. In representing the United States, a federal prosecutor has a special duty not to impede the truth.”
United States v. Thongsy (8/17/2009, 9th Cir. No. 08-30198) 577 F3d 1036: Weapons – Firearm In Furtherance Of Felony: Instructing jury that evidence sufficient if firearm “played a role” was error.
United States v. Harrison (8/19/2009, 9th Cir. No. 08-10391) 578 F3d 1005: Prosecutorial Misconduct – Asking For Truthfulness Comment And Vouching: Prosecutors committed misconduct by asking defendant whether officers were lying (“It’s black letter law that a prosecutor may not ask a defendant to comment on the truthfulness of another witness”). The “vouching was similarly patent.” Although government could rebut defendant’s suggestion that officers were motivated to lie, “it crossed the line when one prosecutor mentioned during closing that the officers had been promoted ‘with no adverse action whatsoever’ after … investigation.” The prosecutor also said that the “‘[g]overnment stands behind'” the officers.
United States v. Cardenas-Mendoza (8/26/2009, 9th Cir. No. 07-10553) 2009 U.S. App. LEXIS 19118: Discovery – Grand Jury Transcript: Trial court abused discretion by refusing to strike government witness’ testimony whose grand jury testimony could not be produced as required by Jencks Act, 18 USC 3500(d) because court reporter had died.
United States v. Gallenardo (8/28/2009, 9th Cir. No. 07-30414) 2009 U.S. App. LEXIS 19358: Child Pornography – Intrastate Possession May Be Prosecuted Federally: Intrastate possession of child pornography may serve as requisite interstate commerce nexus for federal jurisdiction. (See United States v. McCalla (9th Cir. 2008) 545 F3d 750, 756 [“homegrown” child pornography affects interstate commerce even when there is no evidence that the pornography in the instant case was distributed].)
