All posts by Julie Anne Ines

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“So-Called” Identity Theft Is Not Covered by Prop. 47

People v. Jimenez (2020) 9 Cal.5th 53 held that misuse of identifying information in violation of PC 530.5(a) cannot be reclassified as shoplifting because section 530.5(a) is not a theft offense. (Jimenez, supra, 9 Cal.5th at pp. 58-59; see also People v. Harrell (Aug. 10, 2020, A156017) ___ Cal.App.1st ___ .)

Jimenez discusses several reasons why a violation of PC 530.5(a) is not a theft offense, even though it is sometimes referred to as “identity theft.” First, neither the term “theft” does not appear in the statutory language. (Jimenez, supra, 9 Cal.5th at p. 63.) Nor does the statute contain requirements that are central to the crime of theft such as a requirement that the defendant intend to permanently deprive the victim of any form of property. (Ibid.) Indeed, “the offense of misuse of personal identifying information can be accomplished by acquiring the information with valid consent, using it for an unlawful purpose, and returning it.” (Ibid.) In other words, PC 530.5(a) can be violated even if the victim’s identifying information was not stolen.

 

Second, PC 530.5 is directed at unlawful use of a person’s identity, not at unlawful taking of property. (Jimenez, supra, 9 Cal.5th. at p. 64.) The legislative history of the statute reflects the legislature’s intent to address various ” ‘ripples of harm’ that ‘flow from the initial misappropriation’ of identifying information—harm that often goes ‘well beyond the actual property obtained.’ ” (Id. at p. 64 [quoting Sen. Com. on Public Safety, Analysis of Assem. Bill No. 2886 (2005-2006 Reg. Sess.) as amended May 26, 2006].) Thus, a felony violation of the statute turns on the seriousness of the crime and its consequences for the victim, rather than the type or value of property involved. (Jimenez, at p. 64, citing People v. Weir (2019) 33 Cal.App.5th 868.) Moreover, PC 530.5 is contained in a Penal Code chapter entitled ” ‘False Personation and Cheats,’ ” rather than in the chapter entitled ” ‘Larceny.’ ” (Jimenez, at p. 64.)

Finally, the new theft offense of shoplifting (PC 459.5(a)) is “ill suited to punish misuse of identifying information” because these two laws are fundamentally different, reflecting different legislative rationales. (Jimenez, supra, 9 Cal.5th at p. 65.) “The rationale for misdemeanor shoplifting is that culpability for an unlawful taking of property should reflect degrees of danger that depend on the time of day, nature of the entry, and value of the property involved.” (Harrell, supra.) By contrast, PC 530.5 “prohibits a person from ‘acquiring, retaining, or using information, rather than taking it,’—itself a fair indicator that the Legislature was concerned with use, not theft. [Citation.] And on its face, it addresses harms reaching well beyond theft, implicating issues of privacy and control of personal data.” (Jimenez, at p. 65; see also Harrell, supra.)

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CSC Neither Tightens Nor Lessens Standard of Prejudice for Alternate Theory Error

People v. Aledamat (2019) 8 Cal.5th 1 a divided court held that the same standard of prejudice which applies to the misdescription or omission of elements of the charge applies to alternate theory error: i.e., instruction on both a correct and incorrect theory of guilt: “the same Chapman analysis of harmless error applies to alternative-theory error as applies to other kinds of misdescription of the elements.” (Id. at 11.)

Notwithstanding the fact that cases like Martinez and Chiu focused on what the jury “actually did … [they] were only a specific application of the more general reasonable doubt test stated in cases like Neder [Neder v. United States (1999) 527 U.S. 1, 17-18] and Merritt. [People v. Merritt (2017) 2 Cal.5th 819, 830-32.]” (Aledamat at 12.)

Thus, the majority opinion does not conflict with the dissenting opinion’s view that:

Like the United States Supreme Court, to date we’ve found instructional error harmless only when we can conclude “beyond a reasonable doubt” either that the jury necessarily relied on a valid legal theory [Citation] or that the element omitted or misdescribed “was uncontested and supported by overwhelming evidence , such that the jury verdict would have been the same absent the error” [Citing and quoting Neder, Merritt [finding error harmless where the defense expressly conceded a robbery occurred and there was overwhelming video evidence of the only contested issue]; People v. Canizales (2019) 7 Cal.5th 591, 616 [examining both the “strong” and the “conflicting evidence” on a contested issue and noting “both the prosecutor’s closing argument and the attempted murder instruction” had “the potential to cause confusion”]; People v. Mil (2012) 53 Cal.4th 400, 417  [reversing burglary and robbery special circumstances because the defendant “contested whether he acted with reckless indifference to human life” and “the record support[ed] a reasonable doubt as to that element”].)

In fact, the majority ultimately finds harmless error by utilizing the Neder/Merritt analysis; i.e., whether the erroneous theory was contested and supported by overwhelming evidence:

“…the prosecutor stated that the box cutter was inherently deadly because “you wouldn’t want your children playing with” it, without further explaining the term. But no one ever suggested to the jury that there were two separate ways it could decide whether the box cutter was a deadly weapon. Defense counsel … never argued that, if [the defendant] did assault the victim with the box cutter, the box cutter was not a deadly weapon. Although defense counsel did not expressly concede that the box cutter was a deadly weapon, he did not contest the point.”[Emphasis added.] [Para] Contesting the point would have been futile based on the record here. A box cutter is not inherently deadly because it is not designed for that purpose. But if used to assault someone, i.e., used as a weapon, a box cutter is potentially deadly even if not designed for that purpose. [Citation.] … Counsel could readily believe it would be pointless for him to argue that even if (contrary to the argument counsel did make) the jury found defendant assaulted the victim with the box cutter, it was not a deadly weapon. This is particularly so in light of defendant’s statement, ‘I’ll kill you.’ ” established that the jury would not have sided with the defendant even if he had contested it. (Aledamat, 8 Cal.5th at 14.)

The above is textbook Neder/Merritt analysis — the error was harmless beyond a reasonable doubt because the erroneous theory was not contested by the defense overwhelming evidence. As the Court of Appeal put it: “[The Neder] test would certainly be satisfied here, where defendant never disputed that the box cutter was being used as a deadly weapon and where the evidence of such use is overwhelming.” (Aledamat Court of Appeal Opn. 20 Cal.App.5th at p. 1154.)

In sum, even though the Aledamat majority rejected the stricter standard argued for by the defendant, it did not move away from the Neder/Merritt standard either.

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SB 1437 and Attempted Murder

A recurring issue in Court of Appeal opinions is whether SB 1437 applies to attempted murder liability under the natural and probable consequences doctrine, and there is currently a split in authority. The California Supreme will consider this issue in People v. Lopez (2019) 38 Cal.App.5th 1087, review granted 11/13/2019 (S258175/B271516). See this post: Two Issues Regarding Accomplice Liability for Attempted Murder Currently Before the CSC March 17th, 2020

The California Supreme Court has also granted review, with briefing deferred, of Court of Appeal cases with opinions addressing the attempted murder issue (including cases with unpublished decisions). A list of published cases where review has been granted is below.

  • People v. Munoz (2019) 39 Cal.App.5th 738, review granted 11/26/2019 (S258234/B283921). The Court of Appeal held that SB 1437 does not apply retroactively to nonfinal cases on direct appeal and does not apply to the offense of attempted murder.
  • People v. Larios (2019) 42 Cal.App.5th 956, review granted 2/26/2020 (S259983/F078759). The Court of Appeal held that the resentencing procedure in Penal Code section 1170.95 provides no relief for the crime of attempted murder where defendant’s conviction is final.
  • People v. Medrano (2019) 42 Cal.App.5th 1001, review granted 3/11/2020 (S259948/F068714, F069260). In this direct criminal appeal where the defendants were convicted of attempted murder and the jury was instructed on the natural and probable consequences doctrine, the Court of Appeal held that the Penal Code section 1170.95 resentencing procedure does not apply to individuals convicted of attempted murder and that the defendants were entitled to relief on direct appeal under In re Estrada (1965) 63 Cal.2d 740. For two of the defendants, the court reversed the attempted murder convictions. The court reasoned that SB 1437 “precludes any imposition of vicarious liability under the natural and probable consequences doctrine if the charged offense requires malice aforethought. Because malice cannot be imputed to a defendant who aids and abets a target offense without the intent to kill, the natural and probable consequences doctrine is no longer a viable theory of accomplice liability for attempted murder.” The court also concluded the prosecution may retry the defendants on the attempted murder counts.
  • People v. Sanchez (2020) 46 Cal.App.5th 637, review granted 6/10/2020 (S261768/F076838). The court followed Medrano, which held that SB 1437 eliminates the natural and probable consequences doctrine as a viable theory of accomplice liability for attempted murder.
  • People v. Cerda (2020) 45 Cal.App.5th 1, review granted 5/13/2020 (S260915/B232572). In the nonpublished portion of its opinion, the Court of Appeal rejected defendants’ arguments that (1) SB 1437 should apply to attempted murder; (2) the natural and probable consequences doctrine should not apply to attempted premeditated murder; and (3) SB 1437 should apply retroactively without complying with its petition procedure. In the published portion of the opinion, the Court of Appeal concluded that the evidence was sufficient to support the kill zone theory of liability after reconsidering the case in light of People v. Canizales (2019) 7 Cal.5th 591.
  • People v. Dennis (2020) 47 Cal.App.5th 838, review granted 7/29/2020 (S262184/G055930). In this direct appeal from Dennis’s criminal convictions, the Court of Appeal concluded SB 1437 does not bar his convictions for attempted murder under the natural and probable consequences theory. “The legislation reaches the crime of murder but has no application to attempted murder.” However, the court also concluded that the jury instruction on attempted premeditated murder on a natural and probable consequences theory constituted a Sixth Amendment violation because it allowed the jury to find the attempted murders were premeditated without requiring the jury to find that attempted premeditated murder was the natural and probable consequence of the target offense (following the reasoning in Alleyne ). The court vacated the special findings that the attempted murders were willful, deliberate, and premeditated and remanded the matter to give the prosecution the opportunity to decide whether to retry Dennis on the special findings under jury instructions consistent with the opinion in this case. The court also noted that the premeditation finding would fall as a matter of state law if the California Supreme Court extends the reasoning and holding of Chiu to attempted murder.
  • People v. Mejia (2019) 40 Cal.App.5th 42, review granted 1/2/2020 (S258796/G052967). This case does not discuss SB 1437. The Court of Appeal held that the trial court prejudicially erred by instructing the jury on premeditated attempted murder under the natural and probable consequences doctrine based on a codefendant’s premeditation and deliberation, relying on Chiu and declining to follow Favor. The court “conclude[d] the true finding of premeditated and deliberation as an aider and abettor cannot be based on the natural and probable consequence doctrine.” The court vacated the premeditation and deliberation special finding and remanded the case to give the prosecution the opportunity to decide whether to retry Mejia on the special finding as a direct perpetrator.

However, a petition for review was not filed in a case in which the Sixth District held that SB 1437 does not apply to the offense of attempted murder. (People v. Alaybue (2020) 51 Cal.App.5th 207 (H047221).) The court also held that SB 1437 is constitutional and reversed the trial court’s order denying Alaybue’s SB 1437 petition so that the court may reconsider the petition, but only as to the murder convictions.

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Dismissal of Deliberating Juror: “Great Caution” and “Heightened Standard of Review” are Required

A trial court may dismiss a juror if the court finds the juror is “unable to perform his or her duty.” (PC 1089; People v. Armstrong (2016) 1 C5th 432, 450.) Dismissal may be appropriate, for example, when a juror is emotionally unable to continue or expresses a fixed conclusion at the beginning of deliberations and refuses to engage with other jurors. (See People v. Cleveland (2001) 25 C4th 466, 474, 475.)

“Great caution is required when deciding to excuse a sitting juror.” (People v. Allen and Johnson (2011) 53 Cal.4th 60, 71.) If a juror’s willingness or ability to continue deliberating is unclear, the court must inquire further before dismissing the juror. (Shanks v. Department of Transportation (2017) 9 Cal.App.5th 543, 551-557.) The inquiry must be sufficient to determine the facts that demonstrate a juror’s ability or inability to deliberate (People v. Burgener (1986) 41 Cal.3d 505, 519,) and may not assume the worst about a juror without giving her an opportunity to explain herself. (People v. Compton (1971) 6 Cal.3d 55, 60; Shanks, supra, 9 Cal.App.5th at 556.)

The CSC has adopted a heightened standard of review that protects the defendant’s fundamental rights to due process and a fair trial. (Armstrong, supra, 1 Cal.5th at 450; Cal. Const., art. I, § 16 [trial by jury is an “inviolate right”].) The juror’s inability to perform his or her duty must appear in the record as a “demonstrable reality.” (Ibid.) Our Supreme Court has emphasized that this test is “more comprehensive and less deferential” than the substantial evidence test. (Id. at 451.)

 

In People v. Jones (June 15, 2020, A155720) ___ Cal.App.1st ___ [pp. 6-7] the court dismissed Juror 10 because she “expressed … an inability to continue deliberating based upon, not so much the information but … in many ways the way in which it was presented to her. She indicated that she felt that she was being bullied. …”  The reviewing court reversed.  “The juror’s inability to perform his or her duty must appear in the record as a ‘demonstrable reality.’”  The evidence did “not meet the heightened standard. Juror No. 10 never requested to be discharged, nor did she ever say she was unwilling or unable to continue deliberating. … The court never asked her directly whether she could continue. Instead, the court asked her if it would be ‘very difficult’ for her to continue. At best, the question is ambiguous, which is insufficient. … The dismissal of Juror No. 10 on an ambiguous record is particularly problematic because she had indicated that she was ‘having problems’ with the elements for the murder charges.”

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Deficiencies in Defense Evidence Cannot Make up for Shortcomings in Prosecution’s Evidence

[Update of February 3rd, 2015 post]

People v. Centeno (2014) 60 Cal. 4th 659 provides an important clarification of the presumption of innocence and the prosecution’s burden of proof: “…[D]eficiencies in the defense case [cannot] make up for shortcomings in [the prosecution’s case].” (Id., at 673.)

For example, in People v. Brito (Sep. 19, 2019, B290418) UNPUBLISHED the following remarks by the prosecutor erroneously characterized the absence of defense evidence as prosecution evidence: “[S]ometimes evidence is actually the absence of evidence…. So I’m asking you to think about the absence of evidence as evidence….[P]art of my case is the absence of that evidence [viz., any record of appellant’s purchase of the car or any testimony from a witness who loaned the car to appellant].” These remarks misstated the law because the absence of evidence is not evidence. (See EC 140 [“‘Evidence’ means testimony, writings, material objects, or other things presented to the senses that are offered to prove the existence or nonexistence of a fact”]; see also People v. Flores (1992) 3 CA4th 200, 210 [“absence of evidence as to what occurred” during two-minute interval was not evidence, leaving only speculation to support conclusion that fetus/infant breathed during interval]; cf. Roddenberry v. Roddenberry (1996) 44 CA4th 634,655 [“If an absence of evidence could satisfy the burden of proof, the concept of burden of proof would have no meaning”].)

In Centeno the prosecutor urged the jury to “decide which version of the facts was true.” (Ibid.) To that end, the prosecutor argued that defendant’s testimony was unreasonable, and conversely that the People’s burden was met if its theory was “reasonable” in light of the facts supporting it. (Ibid.) This recitation of the jury’s duty “clearly diluted” the prosecutor’s burden of proof. (Ibid.) “…[I]t is error for the prosecutor to suggest that a ‘reasonable’ account of the evidence satisfies the prosecutor’s burden of proof… It is likewise error to state that ‘a defendant has a duty or burden to produce evidence, or a duty or burden to prove his or her innocence.’ [Citations.] It is … the prosecutor’s burden to prove the case … [and] even if the jury rejects the defense evidence as unreasonable or unbelievable, that conclusion does not relieve or mitigate the prosecutorial burden.” (Ibid; see also People v. Hill (1998) 17 C4th 800, 831 [there “need not be any “affirmative evidence demonstrating a reasonable doubt …”]; In re Anthony J. (2004) 117 CA4th 718, 733 [trial court’s rejection of defendant’s version of the events did “not matter” because “[t]here still was no positive evidence introduced supplying the necessary elements…”] Nishikawa v. Dulles (1958) 356 U.S. 129, 137 [“disbelief of petitioner’s story . . . [cannot] fill the evidentiary gap in the Government’s case”]; Moore v. Chesapeake & O.R. Co.  (1951) 340 U.S. 573, 576 [disbelief of a witness will “not supply a want of proof”].)

See also,

F 100.1 Inst 1 (a-d) Defense Has No Obligation To Prove Anything;

F 103.4 Inst 4 (a & b) Rejection Or Disbelief Of Defense Evidence Does Not Satisfy The Prosecution’s Burden Of Proof

 

Sample Instructions

Alternative a:

This burden requires the prosecution to present affirmative evidence of guilt. However, rejection or disbelief of the defense evidence does not create such affirmative evidence. Even if you should reject all or part of the defense evidence, you may not convict the defendant unless the prosecution has presented other evidence which you believe to prove guilt beyond a reasonable doubt.

Alternative b:

As I have instructed you, you are the sole judges of the credibility of witnesses and of the weight to be given the testimony of each. If, however, you should disbelieve the testimony of a witness, that circumstance does not warrant your finding that the direct opposite of such testimony is true, for disbelief in testimony, in whole or in part, is not the equivalent of affirmative evidence to the contrary of the disbelieved testimony.

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Proposition 47 Applies to Joy Riding Because Temporary Taking Is LIO of Permanent Taking

Proposition 47 provides that theft of $950 or less is just a misdemeanor. People v. Page (2017) 3 C5th 1175 held that a violation of VC 10851 (aka joyriding) for stealing a car worth $950 or less is covered by Proposition 47. However, VC 10851 describes both taking the car and driving the car and Page concluded that post-theft driving does not qualify for Proposition 47. (See also People v. Morales (2019) 33 CA5th 800, 808 [rejecting equal protection challenge to this disparity and finding no absurdity in potential for more severe punishment of posttheft driving than for theft, in part because “[d]riving is an inherently dangerous activity, driving illegally even more so, and although the theft of a car is a single incident, driving a car without its owner’s permission may be done many times, multiplying the threat to public safety”].)

].)

 

People v. Bullard (2020) 9 C5th 94 held that temporary taking is a lesser-included offense within permanent taking and that both are covered by Proposition 47: “Except where a conviction is based on post-theft driving (i.e., driving separated from the vehicle’s taking by a substantial break), a violation of section 10851 must be punished as a misdemeanor theft offense if the vehicle is worth $950 or less.” For post-sentencing relief under PC 1170.18, the defense bears the burden of showing facts justifying relief, while in pending cases the DA has the burden of showing the defendant doesn’t qualify.

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CSC Clarifies Exception to Proposition 47 in Cases Involving Forgery and Identity Theft

Proposition 47 reduced the punishment for certain nonserious, nonviolent crimes previously classified as “wobblers,” which were punishable either as a felony or as a misdemeanor. Among the offenses it amended was forgery not exceeding $950 dollars. (PC 473(b).) However, Proposition 47 is not “applicable to any person who is convicted both of forgery and of identity theft, as defined in Section 530.5.” (Ibid.)

The CSC held in People v. Gonzales (2018) 6 Cal.5th 44 that this exception applies only when there is a “meaningful connection” between a defendant’s forgery conviction and his conviction for misuse of personal identifying information (PC 530.5), commonly referred to as identity theft. (Gonzales, at p. 53.) The mere fact that those convictions were secured in the same proceeding does not demonstrate such a connection. (Id. at p. 54.)

People v. Guerrero (4/30/2020; S253405) further clarified the “meaningful connection” standard by answering the following question: Does the fact that a defendant possessed separate stolen identification and forged instruments together at the same time provide a sufficient connection between the two offenses to bar him from a sentence reduction pursuant to section 473(b)?

The Court answered this question in the negative: “A meaningful connection between forgery and identity theft for purposes of the identity theft exception requires a facilitative relationship between the two offenses. The mere fact that a defendant possessed two separate items of contraband at the same time does not demonstrate such a relationship.”

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Judge’s Duty to Hold Competency Hearing

Habeas relief was granted in In re Galaviz (2018) 23 Cal.App.5th 491, vacating defendant’s NGI commitment because the trial court failed to hold a competency hearing at the time of his trial.  Defendant had initially been found incompetent but was restored to competency after being housed in the state hospital before trial, based on a report describing his condition as “marginal”, while acknowledging that “‘he is not able to fully understand all of the ramifications of his case….”  (Original emphasis.) (Id., at 496.)  However, the subsequent reports by the doctors appointed to evaluate his sanity expressed concerns over his competency to stand trial.  Specifically, one doctor articulated “‘questions regarding the defendant’s ability to provide meaningful information and to rationally cooperate with others.’”  (Original emphasis.)  His subsequent report observed that defendant’s thinking and responses were “‘bizarre’”, including descriptions of his home being “‘in another galaxy named “Zexxe.”’”  The combination of the report describing defendant as only marginally competent, the subsequent report questioning his competence, and the supplemental report describing his delusions “triggered the trial court’s obligation to hold another competency hearing.”  (Id. at 507.)  The failure to do so constituted reversible error.  Further, a retrospective competency hearing was not feasible given that 22 years had passed since defendant’s trial. (Id. at 511-12.)

 

Similarly, a mayhem conviction reversed People v. Johnson (2018) 21 Cal.App.5th 267 because trial court failed to conduct a competency hearing in the face of substantial evidence that defendant was not competent.  Where “substantial evidence does suggest the defendant might be incompetent, due process dictates a full exploration of the defendant’s mental health to determine if, in fact, he or she is competent to stand trial.”  (Id. at 280; original emphasis.)  Thus, it was error for the trial judge to refuse to conduct a competency hearing based on “the judge’s personal observations” or the prosecution’s “substantial” evidence that defendant was competent and was being disruptive only “to manipulate the system and delay his trial.”  The trial court was required to hold a competency hearing after defendant “engaged in multiple acts of self-mutilation, shouted to voices in his head, could not be quieted during court proceedings, defecated in his pants, was placed in a medical unit at the prison where he was given medication and was put on a suicide watch, and his lawyer expressed doubt throughout the trial about his mental competence to understand the proceedings and to assist in his defense.”  (Id. at 271.)

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Competency and Faretta Self Representation

In In re Sims (2018) 27 Cal.App.5th 195 the defendant, an attorney with a pre-existing history of mental illness, was convicted of murdering her husband.  Earlier in the proceedings, a doubt was declared about her competency, but the trial court found her competent and later allowed her to proceed in pro per.  During the trial, however, her behavior decompensated and her advisory counsel twice attempted to alert the court that he had a doubt that she was competent to proceed, but the judge “would not allow him to speak because he was advisory counsel only.”  The court of appeal reversed.  First, it held that it “would be error to refuse to allow advisory counsel to make a motion or declare a doubt, in order to make additional information about the defendant’s current mental competence available to the court.”  (At p. 209.)  Further, once “the court was confronted with objectively observable evidence of defendant’s bizarre legal defense, and heard her statements in open court…,” it was clear that “the manner in which [she] conducted her defense was not rational.”  Therefore, the trial court was required to appoint counsel and/or declare “a doubt as to defendant’s competence.”  (At pp. 209-210.)  In so holding, the appellate court emphasized that “[t]he standard of competence is not limited to whether defendant understands the nature and purpose of the proceedings; the court must also determine whether he or she can conduct his or her own defense in a rational manner.”  (At p. 211.)

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Competency: (1) No Specific Medical Diagnosis Required (2) Ability to Both Understand Nature of Proceedings and Assist Counsel Is Required

Under both the federal due process clause as interpreted by Dusky v. United States (1960) 362 U.S. 40, and Penal Code section 1367, a finding of incompetency does “not require a specific medical diagnosis drawn from the current version of the Diagnostic and Statistical Manual of Mental Disorders, [or] that the defendant’s mental disorder fit neatly within the standard diagnostic taxonomy.”  Further, the issue of whether defendant is able to understand the nature of the proceedings involves an assessment of defendant’s “‘capacity to have a rational and factual understanding of the proceedings…,’” and both prongs of the competency inquiry, including defendant’s ability to assist counsel, “focus[] on the defendant’s present abilities, as opposed to the possibility that the relevant abilities may be restored in the future.”