CALIFORNIA CASE LAW UPDATE – Selected California Cases
California Supreme Court (April 1 – April 30, 2008)
People v. Pitto (4/7/2008, S139609) 43 C4th 228: Under PC 12022(c) (personally armed in the commission of specified drug offenses), defendant’s purpose in placing the firearm near the drugs is irrelevant.
People v. Gomez (4/10/2008, S140612) 43 C4th 249: Attempt to use force while fleeing with property is robbery.
People v. Valencia (4/14/2008, S051451) 43 C4th 268: (1) The corpus delicti rule applies to unadjudicated crimes offered in aggravation at the penalty phase of a capital trial under current law; (2) court improperly refused to permit defense counsel to comment on the defendant’s demeanor during a trial where he didn’t testify; (3) even if there’s only evidence of imperfect self defense, it’s appropriate to instruct on both perfect and imperfect self defense.
People v. Lewis (4/28/2008, S031603) 43 C4th 415: (1) Kidnapping convictions reversed where the defendant was convicted of kidnapping for rape, since you can’t be convicted of greater offenses and lesser-included offenses at the same time; (2) under Aranda (63 C2d 518) and Bruton (391 US 123), DA can’t redact a statement to misrepresent what was said: “we” to “I” simply isn’t accurate. (See also Tealer (48 CA3d 598).)
Grants Of Review:
People v. Lawrence REV GTD (4/9/2008, S160736) 158 CA4th 685: (1) Did the trial court abuse its discretion by denying a self-represented defendant’s requests for appointment of counsel prior to opening argument? (2) Is the erroneous denial of a motion for reappointment of counsel made after the commencement of trial automatically reversible as structural error?
People v. McFearson REV GTD (4/9/2008, S160601) 158 CA4th 810: Briefing deferred pending decision in People v. Gonzalez REV GTD (3/14/2007, S149898) 146 CA4th 327, which presents the following issue: When separate firearm enhancements under PC 12022.5 and PC 12022.53(b), (c), and/or (d) are found true and the longest enhancement is imposed, should the lesser enhancements be stricken, stayed or simply not imposed at all?
People v. Rodriguez REV GTD (4/9/2008, S160514) 2007 Cal. App. Unpub. LEXIS 10474 and People v. Nichols REV GTD (4/16/2008, S160709) 2008 Cal. App. Unpub. LEXIS 316: Briefing deferred pending decision in People v. Towne REV GTD (2/7/2007, S125677) 2007 Cal. LEXIS 1437, and People v. Nguyen REV GTD (10/10/2007, S154847)152 CA4th 1205, which present issues concerning the use as aggravating sentencing of such factors as being on probation or parole when a crime was committed and prior unsatisfactory performance on probation or parole, and whether a prior juvenile adjudication of a criminal offense in California can constitutionally subject a defendant to the provisions of the three strikes law (PC 667(b)-(i), PC 1170.12) although there is no right to a jury trial in juvenile wardship proceedings in this state.
People v. Smith REV GTD (4/9/2008, S160467) 2007 Cal. App. Unpub. LEXIS 10405, People v. Bowden REV GTD (4/23/2008, S161149) 2008 Cal. App. Unpub. LEXIS 342, and People v. Martinez REV GTD(4/30/2008, S160842) 2008 Cal. App. Unpub. LEXIS 640: Briefing deferred pending decision in People v. Towne REV GTD (2/7/2007, S125677) 2007 Cal. LEXIS 1437, which presents issues concerning the use as aggravating sentencing of such factors as being on probation or parole when a crime was committed and prior unsatisfactory performance on probation or parole.
People v. Story REV GTD (4/23/2008, S161044) 2008 Cal. App. Unpub. LEXIS 326: Was evidence of defendant’s other sexual offenses admissible under EC 1108, even though the charged crime of murder is not among the specific sex offenses listed in section 1108, because the target offense of rape for the prosecution’s theory of felony murder is a listed offense?
People v. Paredes REV GTD (4/30/2008, S160953) 158 CA4th 1516: Is the erroneous removal of appointed counsel reversible per se as structural error or is the ensuing conviction reversible only on a showing of prejudice?
People v. Cross REV GTD (3/1/2006, S139791) 134 CA4th 500: The court directed the parties to file simultaneous letter briefs directed to the following questions: (1) If a general verdict could have rested on two theories, one of which described a legally invalid theory of liability and one of which described a legally valid theory of liability, can the error in the instructions be deemed harmless if it is “clear beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error”? (Neder v. United States (1999) 527 US 1, 18; see People v. Guiton (1993) 4 C4th 1116, 1130-1131; Chrones v. Pulido CERT GTD (2/25/2008, No. 07-544) ____ US _____.) (2) If so, was any error in the instructions harmless in this case? (See FORECITE F 17.20 n12 and F 3160 Note 15 [Pregnancy Resulting In Abortion As GBI].)
People v. Stevens REV GTD (2/13/2008, S158852) 156 CA4th 537: The court ordered the issues to be briefed and argued limited to the following issue: Did the trial court abuse its discretion in requiring a uniformed, armed deputy sheriff to sit immediately beside defendant during his testimony?
California Courts of Appeal (April 1 – April 30, 2008)
People v. Martinez (4/1/2008, E042427) 161 CA4th 754: Where defendant forged two different signatures on one trust deed, he could only be convicted of one count of forgery.
People v. Williams (4/1/2008, B199059) 161 CA4th 705: CALCRIM 416 is not unconstitutional. On appeal from his conviction for sale of cocaine base, appellant challenged the constitutionality of CALCRIM 416, the uncharged conspiracy instruction. The jury was instructed that a member of a conspiracy is criminally responsible for acts and statements made by other members to help accomplish the conspiracy’s goal. He contended that it impermissibly directs jurors to find that a conspiracy exists, reduces the burden of proof, and violates due process and jury trial rights. The appellate court rejected the arguments, finding that the jury was properly instructed. Further, CALCRIM 416 was not erroneous because it failed to set forth the two pronged specific intent requirement. The instruction also did not reduce the prosecution’s burden of proof.
People v. Szadziewicz (4/1/2008, B191683) 161 CA4th 823: There was sufficient evidence of mayhem where defendant held the victim down and repeatedly slashed his face.
People v. Correa (4/4/2008, C054365) 161 CA4th 980: Under PC 12021(a)(1), possession of multiple firearms by a person convicted of a felony can be punished separately.
NOTE: Review has been granted in People v. Correa REV GTD (7/9/2008, S163273).
People v. Garelick (4/8/2008, H030976) 161 CA4th 1107: (1) Evidence of unrelated and uncharged possession of child pornography may be considered by the jury in determining whether defendant is guilty of the charged possession of child pornography, without a preliminary finding by the jury of a mental state as to the uncharged offense.
(2) The appellate court rejected appellant’s argument that CALCRIM 375 should be modified to require the jury to make a preliminary finding that appellant possessed the images with the required mental state to violate PC 311.11, because the quantity of the material and the fact that the items were stored in separate places, alone, were relevant to show that the possession was not accidental or inadvertent with an element of innocent intent. (People v. Robbins (88) 45 C3d 867, 879.)
(3) The appellate court also rejected appellant’s argument that CALCRIM 220 impermissibly shifts the burden of proof to the defense by requiring the jury to “compare” the evidence presented at trial, thereby placing the burden on defendant to present evidence. Quoting People v. Hearon (99) 72 CA4th 1285 [Third District], the court opined, “the time has come for appellate attorneys to take this frivolous contention off their menus.”
(4) Finally, the court found that PC 288.2(b) did not violate the Commerce Clause or the First Amendment of the United States Constitution as it is sufficiently tailored to serve the compelling state interest of protecting children.
People v. Lessie (4/8/2008, D050019) 161 CA4th 1085: A minor’s request to speak to his parent does not constitute a per se invocation of the juvenile’s Fifth Amendment rights.
People v. Mendez (4/11/2008, F052340) 161 CA4th 1362: Reversal was required where the court failed to hold a Marsden hearing following appellant’s motion for new trial based on competency of counsel.
People v. Bragg (4/15/2008, C053173) 161 CA4th 1385: (1) The trial court’s instructions concerning concurrent intent were not erroneous. Following his conviction for three attempted murders, Bragg contended on appeal that the trial court erred when it allowed the jury to find him guilty of attempted murder without finding he acted with the requisite intent. The jury was instructed pursuant to CALCRIM 600 that it could find Bragg guilty of attempted murder of the two victims if he intended to kill the third victim or anyone within the kill zone. Bragg argued the instruction was erroneous because it allowed the jury to find him guilty on a theory of concurrent intent by finding that he intended to harm, rather than kill, those in the zone of danger around the intended victim, thereby lessening the prosecution’s burden of proof. The appellate court rejected the argument. No reasonable juror could have failed to understand from the instructions that to the extent the court used the word “harm” or “zone of harm,” the harm referred to was the ultimate harm of death and that the law required an intent to kill the victims.
(2) It was not error for the court to have failed to instruct on assault with a firearm as a lesser included offense of attempted murder. Bragg also argued that the trial court erred by failing to instruct the jury on assault with a firearm as a lesser included offense of attempted murder. He reasoned that because the attempted murder allegations carried a sentence enhancement for discharge of a firearm, the crime could not have been committed without also committing the offense of assault with a firearm, thus making the latter a lesser included offense of the former. The appellate court rejected the argument. Although the evidence showed Bragg assaulted the victims with a firearm, assault is not a lesser included offense under these circumstances given the pleadings in this case. Evidence of crimes outside the pleadings does not create a lesser included offense where one does not otherwise exist.
(3) The trial court did not err in its instructions concerning the street gang enhancement. Bragg also argued that the true finding on the street gang enhancement had to be reversed because the jury was told that “a pattern of criminal street gang activity” had to be based on the commission of two or more of the crimes of attempted murder and battery with serious bodily injury, when the latter is a crime not enumerated in PC 186.22(b)(1). The appellate court found the error harmless beyond a reasonable doubt. One predicate offense was uncontested. The jury necessarily found a second predicate offense, the commission of the attempted murders, true by virtue of their conviction of Bragg for the underlying offenses. The jury knew it could consider the current offenses as a predicate offense under the statute.
People v. Dobson (4/16/2008, F053531) 161 CA4th 1422: The appellate court is not required to independently review the record pursuant to Anders/Wende procedures where the appeal is from the denial of outpatient status pursuant to a petition for restoration of competency under PC 1026.2.
People v. Gemelli (4/18/2008, E043682) 161 CA4th 1539: A crime victim’s statement contained in the probation report as to the amount of loss incurred constitutes a prima facie showing of economic loss, thereby shifting the burden of disproving the claim to the defendant.
People v. Garcia (4/21/2008, B194011) 162 CA4th 18: An unlawful killing, absent malice, during the commission of an inherently dangerous felony, even if unintentional, is voluntary manslaughter.
People v. Margarejo (4/22/2008, B196889) 162 CA4th 102: A gang enhancement can be based on evidence that indicates that the purpose behind a defendant’s “signing” to individuals who are not gang members is to intimidate the community and/or law enforcement.
People v. Selga (4/22/2008, C055082) 162 CA4th 113: The protective order provision of PC 1203.097(a)(2) applies only to those persons described in (a) through (f) of subdivision (a)(2) of the statute.
People v. Soukomlane (4/23/2008, F052781) 162 CA4th 214: (1) The trial court has relatively narrow discretion in permitting shackling of a criminal defendant at trial and it is a violation of both federal and state due process to permit shackling without a showing of justification or need.
(2) Involuntary exclusion of a pro per defendant from the courtroom is a violation of the right to counsel and the right to a fair trial. After appellant had objected several times to the prosecution’s direct examination of a key witness, the court ordered appellant removed from the courtroom during the remainder of the direct examination. Finding that this action deprived appellant of his presence at trial as well as that of legal representation, and that it could not be shown that the action was harmless beyond a reasonable doubt, the appellate court ordered reversal on this basis also. The concurring opinion provided a list of steps for the trial court judge to take when confronted with difficult circumstances presented by a pro per defendant in a felony case, including the appointment of standby counsel.
In re Vincent G. (4/23/2008, C055068) 162 CA4th 238: In juvenile delinquency cases, relevant evidence, including hearsay, is admissible at a dispositional hearing to assist the court in determining the action to be taken in the minor’s best interests.