CALIFORNIA CASE LAW UPDATE – Selected California Cases
California Supreme Court (April 1-30, 2011)
There were no relevant California Supreme Court decisions for April.
Grants of Review
People v. Caballero REV GTD (4/13/2011, S190647) 191 CA4th 1248: Does a sentence of 110 years to life for a juvenile convicted of committing non-homicide offenses constitute cruel and unusual punishment under the Eighth Amendment on the ground that it is the functional equivalent of a life sentence without the possibility of parole? (See Graham v. Florida (No. 08-7412, 2010) 560 US ____ (176 LEd2d 825; 130 SCt 2011.)
People v. Ahmed REV GTD (4/20/2011, S191020)191 CA4th 1407: Does PC 654 apply to enhancements and thereby preclude imposition of the enhancements in this case for both personal use of a firearm and personal infliction of great bodily injury under circumstances involving domestic violence?
People v. Gonzales REV GTD (4/27/2011, S191240) 192 CA4th 152: (1) Was defendant’s statement to his psychotherapist that he had molested 16 children in the distant past properly admitted into evidence in a commitment proceeding under the Sexually Violent Predator Act pursuant to the “dangerous patient” exception to the psychotherapist-patient privilege? (2) Did the disclosure of defendant’s statements violate a federal constitutional right of privacy?
Sharp v. Superior Court REV GTD (4/27/2011, S190646) 191 CA4th 1280: Does PC 1054.3(b), as amended effective January 1, 2010, alter the existing provisions of law regarding court-ordered examinations of criminal defendants in sanity proceedings, specifically PC 1026 and 1027?
California Courts of Appeal (April 1-30, 2011)
Kidnapping: Asportation. People v. Arias (3/30/2011, B223330) 193 CA4th 1428: The asportation element for simple kidnapping requires proof that the victim has been moved for a substantial distance, which is established by the totality of the circumstances.
Other Crimes: Identity. People v. Shockman (4/5/2011, D056138) 193 CA4th 1607: Under EC 1101(b), a prior offense is admissible to show identity where the prior offense shares common, distinctive features so as to support an inference that the same person committed both.
Amendment Of Charges To Add Lesser Included Offense (LIO). People v. Arevalo-Iraheta (4/5/2011, E050247) 193 CA4th 1574: There is no due process violation where an information is amended during trial to allege a lesser included offense and there is no prejudice to appellant from the amendment.
Jury Should Not Hear PC 1118.1 Motion. People v. Arevalo-Iraheta (4/5/2011, E050247) 193 CA4th 1574: Appellant contended that the court committed misconduct by addressing appellant’s PC 1118.1 motion for dismissal in front of the jury. The appellate court noted that the trial judge should issue a ruling on such a motion outside the presence of the jury, but here there was no prejudice as the judge made only minimal commentary regarding the motion and because appellant on direct examination had confessed to the crimes of which he was convicted.
Juror Unanimity. People v. Arevalo-Iraheta (4/5/2011, E050247) 193 CA4th 1574: Trial judge should have given unanimity instruction, CALCRIM 3501, per the defense request, but failure to do so did not prejudice defendant since there could not have been any confusion among jurors that they were being asked to decide whether the defendant raped or engaged in sexual conduct with victim on five occasions testified to by both the victim and the defendant. (See People v. Matute (2002) 103 CA4th 1437, 1449-1450.)
“One Strike” Law. Case Name: People v. Valdez (4/5/2011, B222463) 193 CA4th 1515: Under the “One Strike” law, the court must impose a life term when defendant has been convicted in the present case of committing the requisite offense against more than one victim; the statute contains no limitation of terms in a particular case.
“One Strike” Law. People v. Byrd (4/7/2011, D056974) 194 CA4th 88: A defendant may be sentenced under both the “One Strike” law based on aggravated kidnapping and consecutively for simple kidnapping of the same victim where simple kidnapping is followed by an aggravated kidnapping.
Hate Crime Misdemeanor Can Be “Serious Felony.” People v. Morgan (4/7/2011, D056444) 194 CA4th 79: A misdemeanor which is elevated to a felony by application of a hate crime statute may constitute a serious felony within the meaning of PC 1192.7.
DMV Hearing: Denial Of Continuance Violated Due Process. Petrus v. DMV DEPUB’D (4/7/2011, D057523) 194 CA4th 1240: A driver is deprived of due process when, at an administrative Department of Motor Vehicles (DMV) hearing for suspension of license, he is denied a continuance following receipt of blood analysis tests just before the hearing.
Judge’s Sua Sponte Duty To Order Competency Hearing For Self-Represented Defendant. People v. Murdoch (4/12/2011, G043313) 194 CA4th 230: Where a self-represented defendant argues the victim of his assault is not human, and medical reports cautioned that defendant may decompensate without medication, the trial court erred in not instituting competency proceedings.
Use Of One Charged Offense As Propensity Evidence As To Other Charged Offenses. People v. Villatoro (4/12/2011, B222214) 194 CA4th 241: Use of charged offenses as propensity evidence regarding other charged offenses is appropriate and furthers the Legislature purpose of EC 1108. A jury convicted appellant of kidnapping, robbery, rape and other offenses committed against five women. Personal use of a gun was found as to several offenses; use of a stun gun was found as to some of the rapes. Appellant challenged the trial court’s giving of a modified version of CALCRIM 1191, which allowed the jury to consider evidence of a charged offense in determining appellant’s propensity to commit other charged crimes. The appellate court acknowledged a current split of authority on whether the jury may consider charged as well as uncharged offenses for propensity evidence. The court found that section 1108 does not reference uncharged offenses and in a multiple victim sex offense case, allowing a jury to use charged offenses it first found true beyond a reasonable doubt as evidence of propensity to commit other charged offenses furthers the legislative purpose of section 1108, of easing the victim’s burden of engaging in a credibility contest. Even so, a trial court should conduct an EC 352 analysis regarding the relationship of the offenses to determine whether it is appropriate to allow the jury to consider the charged offenses as propensity evidence.
Melendez-Diaz. People v. Villatoro (4/12/2011, B222214) 194 CA4th 241: Allowing a nurse to testify about rape exams she did not perform does not deny the right of confrontation. Nurse Wilson, who performed the rape exams on several victims, testified about those exams, as well as the rape exams conducted by other nurses. This testimony did not violate the confrontation clause, as recently discussed in Melendez-Diaz v. Massachusetts (2009) ____ US ____ [174 LEd2d 314;129 SCt 2527], because the exams performed by other nurses were not used directly as proof, as were the ex parte out-of-court affidavits in Melendez-Diaz.
Reading Preliminary Hearing Testimony. People v. Villatoro (4/12/2011, B222214) 194 CA4th 241: The trial court did not err in allowing the preliminary hearing testimony of an uncooperative victim to be read at trial.
Stun Gun. People v. Villatoro (4/12/2011, B222214) 194 CA4th 241: Sufficient evidence supported the finding that appellant’s stun gun was a deadly or dangerous weapon.
Delinquency Proceeding: Right To Competency Hearing. In re Christopher F. (4/18/2011, B220546) 194 CA4th 462: In a WI 602 delinquency proceeding, although a minor has a due process right to a competency hearing, PC 1369 does not apply.
Single Act Resulting In Multiple Enhancements. People v. Robinson (4/20/2011, B223191) 194 CA4th 672: PC 654 does not bar imposition of sentence enhancements for PC 12022.5(a) (use of a firearm) and PC 12022.7 (great bodily injury).
SVP Hearing: Defendant Had Due Process Right To Be Present. People v. Nguyen (4/22/2011, E048880) 194 CA4th 774: There is no statutory right for the committed offender to attend SVP (Sexually Violent Predator) recommitment proceedings, but there is a due process right to be present. Counsel does not have authority to waive the client’s presence.
SVP Commitment Does Not Violate Equal Protection. People v. Nguyen (4/22/2011, E048880) 194 CA4th 774: An equal protection argument based on the disparity of treatment between SVP commitments and those of MDO’s (Mentally Disordered Offenders) did not prevail because there are statistical reasons to treat the two classes of offenders differently.
Flight Used For Accessory Charge Does Not Warrant Flight Instruction (e.g., CC 372). People v. Moomey (4/26/2011, E049827) 194 CA4th 850: The crime of accessory consists of: (1) someone, other than the accused, that is a principal, committed a specific, completed felony; (2) the accused must have harbored, concealed or aided the principal; (3) with knowledge that the principal committed the felony or has been charged or convicted of a felony; and (4) with the intent that the principal avoid or escape from arrest, trial, conviction, or punishment. However, the flight that may have aided the principal’s escape, the actus reus of accessory, may not also be an act of flight that “follows the crime” to support the flight instruction. (CALCRIM 372.)
Accessory To A Wobbler. People v. Moomey (4/26/2011, E049827) 194 CA4th 850: The commission of a wobbler is a felony at the time it is committed and remains a felony unless and until the principal is convicted and sentenced to something less than imprisonment in state prison, or the crime is otherwise characterized as a misdemeanor. (See People v. Feyrer (2010) 48 C4th 426, 438-439.) Even if the perpetrator was subsequently convicted and given a misdemeanor sentence, the misdemeanant status would not be given retroactive effect. (Id. at 439.) Since the evidence was sufficient to establish that the crime the principal committed was a felony, it was sufficient to find appellant guilty of a felony. (People v. McLaughlin (1952) 111 CA2d 781, 792.)
EC 1109: Standard Of Review. People v. Larson (4/26/2011, E050114) 194 CA4th 832: A ruling that allows introduction of past acts of domestic violence pursuant to EC 1109 is evaluated on appeal for abuse of discretion.
Melendez-Diaz. People v. Larson (4/26/2011, E050114) 194 CA4th 832: The documents to prove a prior conviction, the PC 969b packet, are non-testimonial in nature and not subject to confrontation and cross-examination pursuant to Melendez-Diaz v. Massachusetts (2009) 557 US ____ [174 LEd2d 314; 129 SCt 2527].
Multiplicity: Multiple Takings From Single Victim. People v. Jaska (4/27/2011, D057204) 194 CA4th 971: The question of whether multiple takings from a single victim are a single offense committed pursuant to one intention, one general impulse, and one plan is a question of fact under People v. Bailey (1961) 55 C2d 514, 519.
Expert Testimony Based On Documents Not In Evidence. People v. Jaska (4/27/2011, D057204) 194 CA4th 971: Expert opinion testimony may be based on documents that have not been authenticated and have not been introduced into evidence.
Unconsciousness Instruction. People v. Ferguson (4/28/2011, G043190) 194 CA4th 1070: A defendant is not entitled to an instruction on unconsciousness unless supported by evidence that he was not conscious of acting.
Evidence From Vehicle Data Recorder. People v. Ferguson (4/28/2011, G043190) 194 CA4th 1070: Evidence from a vehicle’s data recorder is admissible if obtained in response to a court order.
Attorney-Client Privilege: Waiver. People v. Gray (4/28/2011, C062668) 194 CA4th 1133: A defendant who brings presumptively privileged attorney-client communications to the witness stand and uses them to refresh his memory while testifying, waives the attorney-client privilege.
Failure To Instruct On Uncontested Element. People v. Gray (4/28/2011, C062668) 194 CA4th 1133: Trial court gave an erroneous instruction that conclusively presumed Ambien to be a controlled substance, so as to remove the issue from the jury’s consideration. The error was harmless as appellant essentially conceded or admitted the element. At trial, he did not dispute that Ambien was a controlled substance and both attorneys argued that it was. Finally, the appellate court took judicial notice that Ambien contained an ingredient making it a controlled substance within the provisions of the enhancement.
Judicial Notice By Appellate Court. People v. Gray (4/28/2011, C062668) 194 CA4th 1133: An appellate court can take judicial notice of any fact judicially noticeable in the trial court (see EC 459(a)), and here that evidence is that the physicians desk reference (PDR) lists Ambien as a controlled substance.
Faretta. People v. Powell (4/29/2011, H034349) 194 CA4th 1268: Denial of a Faretta motion for self-representation that is not timely and unequivocal is not a violation of the Sixth Amendment.
Allowing Minor Victim To Testify Outside Defendant’s Presence. People v. Powell (4/29/2011, H034349) 194 CA4th 1268: There is no abuse of discretion in permitting the minor victim to testify outside the presence of defendant, where substantial evidence exists that the minor victim otherwise will suffer great emotional distress (PC 1347).
Failure To Preserve Evidence: Prison Authorities. People v. Velasco (4/29/2011, H035083) 194 CA4th 1258: Failure of prison authorities to collect and preserve evidence that is not potentially exculpatory does not violate a prisoner’s right to due process. (Compare N. Mariana Islands v. Bowie (9th Cir. 2001) 243 F3d 1109; Miller v. Vasquez (9th Cir. 1989) 868 F2d 1116.)
9th Circuit Court of Appeals
(April 1-30, 2011)
Melendez-Diaz. U.S. v. Valdovinos-Mendez (4/18/20, 9th Cir. No. 09-50532) 634 F3d 1049: The defendant was convicted of illegally reentering the US after removal. The government used a document called a certificate of non-existence of record (CNR). This document certifies that the defendant wasn’t on the list of persons who entered the country with permission. However, the government conceded that admission of this document violated the Confrontation clause and Melendez-Diaz v. Massachusetts (2009) ____ US ____ [174 LEd2d 314;129 SCt 2527].