CALIFORNIA CASE LAW UPDATE – Selected California Cases
California Supreme Court (April 1-30, 2009)
People v. Story (4/9/2009, S161044) 45 C4th 1282: EC 1108 permits admission of prior sex offenses to prove the propensity of the def. to commit a currently charged sex offense. Rape-murder and burglary-murder where the burglary is for the purpose of committing rape are sexual offenses, so 1108 evidence is admissible in such prosecutions.
People v. Hawthorne (4/23/2009, S064769) 46 C4th 67: Prosecutorial Misconduct – “Were They Lying” Questions: Courts should carefully scrutinize “were they lying” questions in the context of the cross-examination. (People v. Zambrano (2004) 124 CA4th 228, 239; People v. Chatman (2006) 38 C4th 344, 381-382.)
People v. Stone (4/23/2009, S162675) 46 C4th 131: Attempted Homicide – Victim Need Not Be Named: Person shooting into group of people intending to kill one, but not caring which, may be convicted of attempted murder. “The mental state for attempted muder is the intent to kill a human being, not a particular human being.”
People v. Bonnetta (4/27/2009, S159133) 46 C4th 143: Dismissals – Failure To Write Down Reasons: Decision to dismiss enhancement allegation under PC 1385, subdivision (a) requires that reasons for dismissal be set forth “in an order entered upon the minutes.” Failure to do so requires reversal with directions to court of appeal to allow trial court to correct error.
People v. Gaines (4/30/2009, S157008) 46 C4th 172: Court of appeals judgment reversing conviction is affirmed where the trial court erred in denying defendant’s Pitchess motion without first examining requested records in camera to determine whether they contained relevant information. The trial court’s erroneous denial of a Pitchess motion is not reversible per se, as failure to disclose relevant information in confidential personnel files is reversible only if there is a reasonable probability of a different result had the information been disclosed.
People v. Lawrence (4/30/2009, S160736) 46 C4th 186: Self-representation – Midtrial attempt to Revoke: When a defendant who has elected to represent himself (Faretta v. California (1975) 422 US 806 seeks to revoke the waiver of counsel during trial, court must exercise discretion, considering the defendant’s reasons against the delay or disruption of the process. Here, defendant who was being tried with a co-defendant failed to articulate a compelling reason for revoking waiver, and there would have been delay and disruption, so refusal to permit revocation was not abuse of discretion.
Grants Of Review:
People v. Fontana REV GTD (4/15/2009, S170528) 2009 Cal. App. Unpub. LEXIS 251: Did the Court of Appeal correctly hold (a) that the protections of the rape shield law (EC 782, 1103) did not apply in this case due to defendant’s denial that he had sexual intercourse with the victim and (b) that the trial court thus committed reversible error when it excluded evidence that the victim had engaged in consensual sexual intercourse with her boyfriend on the morning of the alleged sexual assault?
People v. Force REV GTD (4/15/2009, S170831) 170 CA4th 797: Briefing deferred pending decision in People v. McKee REV GTD (7/9/2008, S162823) 160 CA4th 1517, which presents the following issues: Does the amended Sexually Violent Predator Act violate appellant’s constitutional rights to due process of law, is it an illegal ex post facto law, and does it violate equal protection?
People v. Superior Court (Pearson) REV GTD (4/15/2009, S171117) 2009 Cal. App. Unpub. LEXIS 1008: Briefing deferred pending decision in Barnett v. Superior Court REV GTD (9/17/2008, S165522) 164 CA4th 18), which presents issues concerning post-conviction discovery under PC 1054.9.
Review was dismissed 4/1/2009 in People v. Dunn REV GTD (3/14/2007, S149332) 2006 Cal. App. Unpub. LEXIS 10773 light of People v. Scott (2009) 45 C4th 743.
The following cases were transferred 4/1/2009 for reconsideration in light of People v. Scott (2009) 45 C4th 743:
People v. Thomas REV GTD (10/31/2007, S155883) 2007 Cal. App. Unpub. LEXIS 5385.
People v. Pinks REV GTD (6/25/2008, S163214) 2008 Cal. App. Unpub. LEXIS 2582.
People v. Taylor (4/22/2009, S054774) 2009 Cal. LEXIS 3199: The court requested the parties to file supplemental letter briefs addressing the following questions in this automatic appeal: (1) Does California law provide a standard of mental competence to waive counsel and represent oneself at trial, separate from competence to stand trial? If so, what is that standard and how would it apply in the present case? (2) If California law does not provide such a standard, should this court, in the exercise of its supervisory powers, articulate one as a judicially declared rule of criminal procedure? If so, what standard should we state and how, if at all, would it apply in the present case?
California Courts of Appeal (April 1-30, 2009)
People v. Dawson (4/2/2009, A120628) 172 CA4th 1073: For purposes of a preliminary hearing, the magistrate must hold the defendant to answer if either the specific intervening act was reasonably foreseeable, or if it was reasonably foreseeable that an injury of the type sustained could result from the activity engaged in by the defendant. (People v. Brady (2005) 129 CA4th 1314 [Liability exists if the harm is a direct, natural, and probable consequence of defendant’s conduct and as the normal and reasonably foreseeable result of the original act.].)
People v. Samaniego (4/6/2009, B205512) 172 CA4th 1148: Jury Instructions – CALCRIM 400: Even though giving CALCRIM 400 was “misleading” it was not prejudicial. An aider/abettor may be guilty of a greater crime (People v. McCoy (2001) 25 C4th 1111), or a lesser crime, so 400’s statement that a “person is equally guilty,” while generally correct in most cases, should have been modified in this case. Error harmless beyond a reasonable doubt (Chapman v. California (1967) 386 US 18, 24), because jury resolved issues against appellant under other instructions, when it found appellants acted willfully with intent to kill.
People v. Samaniego (4/6/2009, B205512) 172 CA4th 1148: Jury Instructions – CALCRIM 224 and 225 – Circumstantial Evidence: CALCRIM 224 should be given instead of CALCRIM 225 when defendant’s specific intent or mental state is only element of offense that rests on circumstantial evidence. Here 224 was properly given since in order to prove first degree murder, DA had to prove the defendant killed willfully, deliberately and with premeditation, and entire case rested on circumstantial evidence.
People v. Samaniego (4/6/2009, B205512) 172 CA4th 1148: Jury Instructions – Gangs – CALCRIM 1403: CALCRIM 1403 is not contrary to law or misleading. It states that gang evidence is not admissible to show defendant is a bad person or has criminal propensity. It allws evidence to be considered only on issues germane to gang enhacement, motive for the crime and credibility of witnesses.
People v. Samaniego (4/6/2009, B205512) 172 CA4th 1148: Witnesses – Accomplice Testimony: Conviction based solely on accomplice testimony cannot be sustained. (People v. Verlinde (2002) 100 CA4th 1146, 1157.)
People v. Samaniego (4/6/2009, B205512) 172 CA4th 1148: Abstract Of Judgment – Oral Pronouncement Controls: Rendition of judgment is an oral pronouncement. (People v. Mesa (1975) 14 C3d 466, 471.) The abstract of judgment is not the judgment of conviction. (Ibid.) The court’s oral pronouncement controls over the abstract of judgment as the latter cannot add to or modify the judgment. (People v. Farrell (2002) 26 C4th 181, 183.)
People v. O’Shell (4/8/2009, D052648) 172 CA4th 1296: Trial court’s error in excluding testimony of SVP’s fear of a third strike conviction was harmless. O’Shell appealed an order committing him to the custody of the Department of Mental Health as a sexually violent predator (SVP). He contended on appeal that the trial court erred in precluding him from testifying to the jury that he faced a life sentence under the three strikes law if he reoffended. The appellate court agreed that the trial court erred when it excluded the testimony. Whether O’Shell was likely to reoffend was a fact of consequence as to the determination of the action, and the testimony had some tendency to disprove the likelihood of reoffense.
People v. Burns (4/8/2009, B205324) 172 CA4th 1251: Where a person wrests away personal property from another person who resists the effort to do so, the crime is robbery and there is no need to instruct on a lesser included offense of grand theft.
People v. Dyke (4/9/2009, A117955) 172 CA4th 1377: Showing Harmful Matter To A Minor (PC 288.2): Testimony that the defendant exposed her to pornographic images while “flipping” through television stations, was insufficient to draw a reasonable inference that images lacked serious literary, artistic, political, or scientific value, and thus those images did not constitute “harmful matter” (see Miller v. California (1973) 413 U.S. 15, 24; People v. Hsu (2000) 82 Cal.App.4th 976, 993), within the meaning of section 288.2, subdivision (a).
People v. Waldie (4/10/2009, E042303) 173 CA4th 358: Whether Failure To Return Calls From Police Shows Consciousness Of Guilt: The police called up the defendant and asked to talk to him, but the defendant never returned the calls. The DA was permitted to elicit this from the police, and then argued that this showed consciousness of guilt and got a jury instruction saying that this showed consciousness of guilt. Held that refusal to return police calls to show guilt violates the 5th Amendment per Doyle v. Ohio (1976) 426 US 610.
People v. Felix (4/16/2009, B204858) 172 CA4th 1618: Attempted Murder – Shooting Into Inhabited Home: After threatening to kill victim, defendant shot into his master bedroom, knowing victim was home, and probably also his children. Held, evidence sufficient to support conviction for attempted premeditated murder.
People v. Ary (4/20/2009, A113020) 173 CA4th 80: Compentecy – Presumption In Retrospective Proceedings: Following remand to trial court with order to conduct competency determination under PC1368, trial court erred in placing burden of demonstrating competency on defendant.
People v. Coon (4/23/2009, D052722) 173 CA4th 258: Proof Of Priors – Faxed Copies: Faxed copies of certified court records admissible to establish defendant was on bail when he committed crimes. A copy of a writing in the custody of a public entity is prima facie evidence of existence and content of writing if: (1) copy purports to be published by authority of the public entity which keeps the writing; (2) office is in the United States; and (3) copy is attested or certified as correct copy by a public employee having legal custody of the writing. (EC 1530(a)(1)-(2).)
Lopez v. Superior Court (4/23/2009, G040679) 173 CA4th 266: Mentally Disordered Offenders – Failure To Raise Nature Of Offense: Mandate petition challenging nature of underlying crime denied because the challenge to the original certification as an MDO is untimely.
In re Edward S. (4/27/2009, A118547) 173 CA4th 387: Counsel – Ineffective Assistance Not Excused Due To Caseload: Reversal was required where public defender’s representation of the minor at a jurisdictional hearing was deficient allegedly due to a heavy caseload. The appellate court found that counsel’s performance was deficient in that he failed to investigate exculpatory evidence, sought an inadequate continuance based on a mistake of law, and failed to move for substitution of counsel knowing he was unable to devote the time and resources necessary to properly defend the minor.
People v. Magallanes (4/28/2009, G040133) 173 CA4th 529: Multiple Convictions – Carjacking And Stolen Property: Defendant could not be convicted both of carjacking and receipt of stolen property because stolen property was same car taken during carjacking.
People v. Zanoletti (4/28/2009, B199682) 173 CA4th 547: Insurance Fraud – Multiple Convictions – Duplicity: Various paragraphs of PC 550(a) describe different means of commiting single crime of insurance fraud and ordinarily a defendant cannot be convicted of multiple violations of PC 550(a), but here multiple convictions were appropriate because they were based on different acts of fraud.
People v. Watts (4/29/2009, C056491) 173 CA4th 621: Counsel – Self-Representation Denial: Request for self-representation properly denied when defendant had previously shown he was unable or unwilling to abide by courtroom rules.
People v. Frazier (4/29/2009, C057684) 173 CA4th 613: GBI Enhancement – Use Of Dogs: Enhancement under PC 12022.7 for intentional infliction of great bodily injury proper when defendant inflicted the injury by instructing her dogs to attack the victim.
People v. Henning (4/29/2009, C058105) 173 CA4th 632: CALCRIM 1804 which instructs on theft by false pretense, is partially inaccurate as it instructs in option A that the People must prove that the false pretense was accompanied by either a writing or false token, but fails to specify that the writing must be false. To prove the crime of theft by false pretenses, there must be corroboration by either a false token or writing, or a writing subscribed b,y or in the handwriting of, the defendant, or testimony of two witnesses, or testimony of one witness and corroborating circumstances. Option A of CALCRIM 1804, states that the pretense must be accompanied by either a writing or false token. By failing to modify the word “writing” with “false,” the instruction improperly informs the jury of the element that it must find.
In re Nunez (4/30/2009, G040377) 173 CA4th 709: Life Without Parole For Non-Murdering Juvenile Is Cruel And Unusual: A sentence of life without parole (LWOP) for kidnap for ransom (PC 209 (a)), imposed on a minor, 14 years old when the crime was committed, is unconstitutional under both the California and the U.S. Constitutions. Article I, section 17 of the California Constitution and the Eighth Amendment to the United States Constitution prohibit cruel and unusual punishment.
Other California Courts (April 1-30, 2009)
People v. Flores (Super. Ct. App. Div. Riverside, 2/27/2009, APP004387) 173 CA4th Supp. 9: Speedy Trial – Chronic Court Congestion: Trial court did not abuse discretion in denying DA’s continuance motion, brought under PC 1050(a) ( “…. criminal cases shall be given precedence over, and set for trial and heard without regard to the pendency of, any civil matters or proceedings”) because the reasons for the unavailability of courtrooms was not an emergency or one-time event, but “an ongoing condition plaguing the Riverside Superior Court ….” Speedy trial violation required dismissal.
U.S. Supreme Court (April 1-30, 2009)
Corley v. United States (4/6/2009, No. 07-10441) ____ US ____ [173 LEd2d 443; 129 SCt 1558]: Confessions – Unreasonable Delay In Bringing Before Magistrate: Congress limited but did not eliminate the rule of McNabb v. United States (1943) 318 US 332 and Mallory v. United States (1957) 354 US 449, which hold that an arrestee’s confession is inadmissible if given after an unreasonable delay in bringing him before a judge. The limitation means that voluntary confessions made within six hours of suspect’s arrest are presumed to be admissible.
Kansas v. Ventris (4/29/2009, No. 07-1356) ____ US ____ [173 LEd2d 801; 129 SCt 1841]: Impeaching Client’s Testimony With A Statement Taken In Violation Of The 6th Amendment: The USSC previously held that a statement taken in violation of the 5th Amendment, under Miranda, while it can’t be used in the DA’s case in chief, can be used to impeach the defendant if he testifies. (Harris v. New York (1971) 401 US 222). The statement at issue here was obtained from the def. in violation of his 6th Amendment right to counsel, which we often refer to as a Massiah v. U.S. (1964) 377 US 201) violation. The USSC hold that a statement obtained from a defendant in violation of his 6th Amendment right to counsel, barred from use in the DA’s case in chief, may be used to impeach.
9th Circuit (April 1-30, 2009)
United States v. Ferguson (3/27/2009, 9th Cir. No. 07-50096) 560 Fd 1060: Remand was required where competency for self-representation was determined under the pre-Edwards standard. Ferguson insisted on representing himself at trial on child pornography charges. During the proceedings, he exhibited bizarre behavior. The district court expressed a desire to deny his request to represent himself, but the law at the time compelled it to allow self-representation because Ferguson was competent to stand trial.
United States v. Lazarenko (4/10/2009, 9th Cir. No. 06-10592) 564 Fd 1026: Wire Fraud – Transfers Not “In Furtherance” Of Fraud: Evidence was insufficient to prove that wire transfers made several years after fraud were “in furtherance” of the fraud.
Nordyke v. King (4/20/2009, 9th Cir. No. 07-15763) 563 F3d 439: Weapons – Second Amendment Personal Right: Individuals may assert Second Amendment right to bear arms thus extending holding of District of Columbia v. Heller (2008) ____ US ____ [171 Ld 2d 637;128 SCt 2783] to the states through application of the Fourteenth Amendment.
United States v. Mendez-Sanchez (4/23/2009, 9th Cir. No. 08-30044) 563 F3d 935: Self-representation – Request Insufficient: While a defendant may invoke self-representation Faretta right after denial of motion to substitute counsel is denied, invocation must be unequivocal. Request to represent oneself made while at the same time stating preference for representation by different lawyer and rearguing change of counsel motion is insufficient to invoke right under Faretta.
United States v. Crowe (4/24/2009, 9th Cir. No. 08-30173) 563 F3d 969: Lesser Includeds – Federal Involuntary Manslaughter: Involuntary manslaughter (18 USC 1112(a) and 1153) is lesser included of voluntary manslaughter when defendant asserts self-defense when intentionally stabbing victim, who was beating her.