CALIFORNIA CASE LAW UPDATE – Selected California Cases
California Supreme Court (August 1, 2007 – August 31, 2007)
People v. Alfaro (8/6/2007, S027730) 41 C4th 1277: DA was properly permitted to impeach the testifying defense experts with the MMPI not relied on by those experts and was permitted to call the defense expert who did the MMPI. The information was relevant and the testifying defense experts had reviewed the MMPI.
People v. Bonilla (6/18/2007, S045184) 41 C4th 313 [rehearing denied 8/8/2007]: Defendant may be convicted of lying in wait special circumstance even though he himself isn’t the one lying in wait. So long as the killer was lying in wait, the aider and abettor may also receive a lying in wait special circumstance.
Garcia v. Superior Court (8/9/2007, S127432) 42 C4th 63: Defendant seeking discovery of police personnel records may file a declaration under seal in support of his or her Pitchess motion on the grounds that it contains information protected from disclosure by the attorney-client (EC 954) and/or attorney work product privileges (CCP 2018). The defendant who submits a sealed declaration in connection with a Pitchess motion must provide timely and proper notice to the officers, specifically claiming his or her attorney-client, attorney work product, or other recognized privilege or immunity; trial court must review the sealed declaration or the affidavit in camera with defense counsel to determine what portions of the document, if any, contain legitimately privileged information and order that those limited portions of the document remain under seal. Declarations or affidavits filed in support of Pitchess motions need not contain information based on personal knowledge, but may include averments based on information and belief. A redacted declaration in support of a motion must be filed and served upon the custodian of records for proceedings on the merits of the motion.
People v. DePriest (8/9/2007, S040527) 42 C4th 1: A conviction and death sentence is affirmed on automatic appeal over claims of error regarding: 1) challenges for cause; 2) denial of an additional peremptory challenge; 3) cumulative error and prejudice; 4) a speedy trial motion; 5) statements to police; 6) untimely disclosure of shoe print evidence; 7) loss of the victim’s car; 8) a detective’s testimony; 9) the sufficiency of the evidence; 10) jury instructions; 11) alleged misconduct by a detective; 12) a motion to modify verdict; and 13) constitutional challenges to the death penalty law and related claims.
People v. Semaan (8/13/2007, S139685) 2007 Cal. LEXIS 8633: The “Freeze and Seize Law” pursuant to PC 186.11, allows a superior court to seize any property or assets under the control of the defendant in white collar criminal cases, including property in possession of a third party, and does not require proof of defendant’s ownership. A person who claims to have interest in the seized money may seek their release by filing a claim in the superior court. (PC186.11(e)(6).) The superior court denied the claim holding that the claimant did not actually own the money even though it was partly in her name. The burden is not on the people to show by clear and convincing evidence that the claimant did not own the money. As a result it was kept to pay off the restitution owned by the defendant/owner’s of the money. EC 622 which indicates that the owner of the legal title to the property is presumed to b e the owner, is not applicable when the title itself is challenged as not genuine.
People v. Sloan (8/16/2007, S132605) 2007 Cal. LEXIS 8704: An offense can qualify as a necessarily lesser-included offense in two ways. First, if every element of the lesser is included in the greater, like petty theft and grand theft. Second, if the accusatory pleading recites every element of the lesser. However, enhancements cannot be considered in determining whether an offense is necessarily lesser included.
People v. Izaguirre (8/16/2007, S132980) 2007 Cal. LEXIS 8705: Relying on its concurrent decision in People v. Sloan (8/16/2007, S132605) 2007 Cal. LEXIS 8704, the court rejects a claim that the U.S. Supreme Court’s decision in Apprendi, as interpreted in People v. Seel (2004) 34 C4th 535 in the context of federal double jeopardy jurisprudence, require that conduct enhancements be treated as legal elements for the purpose of defining necessarily included offenses under the multiple conviction rule under People v. Reed (2006) 38 C4th 1224.
People v. Abilez (6/28/2007, S066377) 41 C4th 472 [modified/rehearing denied 8/22/2007]: The DEFENSE sought to present EC 1101 and EC 1108 evidence to show third party guilt. Exclusion affirmed due to the lack of similarity between the current offense and the prior.People v. Abilez (6/28/2007, S066377) 41 C4th 472 [modified/rehearing denied 8/22/2007]: The DEFENSE sought to present EC 1101 and EC 1108 evidence to show third party guilt. Exclusion affirmed due to the lack of similarity between the current offense and the prior.
People v. Halvorsen (8/30/2007, S008112) 2007 Cal. LEXIS 9352: This is a pretty weird opinion. PC 29 bars a testifying expert from giving an opinion on whether the defendant does or does not have a required mental state. The defense complied with PC 29, presenting a psychiatrist who, quite properly, described the defendant’s mental disorders, without giving an ultimate opinion about the defendant’s mental state. The DA was then permitted, on cross, to ask the psychiatrist whether there was sufficient evidence that the defendant had a mental disorder to reduce the murder from a first degree to a second; the expert said no. Without deciding whether or not the DA’s question was error, the California Supreme Court holds that it was harmless. But see dissent from Kennard explaining why this was prejudicial error.
Grants Of Review:
People v. Ybarra REV GTD (S152984, 8/15/2007) 149 CA4th 1175: (1) Whether enhancement allegations should be considered in determining whether a lesser offense is necessarily included in a charged offense as pled in the information or indictment, and (2) whether, 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, the lesser enhancements should be stricken, stayed or simply not imposed at all.
California Courts of Appeal (August 1, 2007 – August 31, 2007)
People v. Fielder (8/3/2007, D050030) 2007 Cal. App. LEXIS 1407: Three counts of PC 290 not barred by PC 654.
People v. Ramirez (8/6/2007, B191377) 153 CA4th 1422: Hearsay statements, relied on by a gang expert in forming his opinions are not “testimonial,” so admission of the expert’s opinion does not violate the Confrontation Clause and Crawford, Davis v. Washington (2006) ____ US ____ [165 LEd2d 224; 126 SCt 2266]), or People v. Cage (2007) 40 C4th 965.
In re Gomez (8/7/2007, B197980) 153 CA4th 1516: Cunningham v. California (2007) ____ US ____ [127 SCt 856] is not to be applied retroactively to upper term sentences on collateral review in cases already final when it was decided. The court held that the rule set forth in Blakely was neither a substantive rule nor a watershed rule of criminal procedure, and they follow that neither is Cunningham. (See In re Consiglio (2005) 125 CA4th 511, 514-516; People v. Amons (2005) 125 CA4th 855, 864-865; see also Whorton v. Bockting (2007) ____ US ____ [127 SCt 1173, 1180-1181].)
People v. Garcia (8/7/2007, G037489) 153 CA4th 1499: It is sufficient proof of PC 186.22(a), and the gang enhancement pursuant to PC 186.22(b)(1) allegation that the underlying crime was committed for the benefit of a street gang, evidence of actual knowledge of a criminal street gang’s current activities, including information about where gang members had hidden gang guns and the identity of members who were engaged in gang shootings, when an expert testifies such information is available only to other active gang members satisfies the statutory requirement of active participation in a gang. Second, the court did not abuse its discretion by admitting evidence by the gang expert based on hypothetical questions that the defendant was an active participant in a criminal street gang and that his possession of a firearm was for the benefit of a gang. (See People v. Gonzalez (2006) 38 C4th 932, 946-947.) Consecutive terms for PC 168.22 (a) and PC 186.22(b) do not violate section PC 654’s prohibition against multiple punishments for the same crime. (See People v. Herrera (1999) 70 CA4th 1456, 1468 [the intents are theoretically different for the substantive crime than for the enhancement]; People v. Ferraez (2003) 112 CA4th 925, 935.)
People v. O’Dell (8/9/2007, B192805) 153 CA4th 1569: CALCRIM 376, like its predecessor CALJIC 2.15 does not shift the burden to the defendant, instead of forcing the prosecution to prove each element of the offense. (See People v. Anderson (1989) 210 CA3d 414, 420-421.) The former and the current instruction are held to be constitutional. (See People v. Holt (1997) 15 C4th 619, 676-677; People v. Johnson (1993) 6 C4th 1, 37-38.)
People v. Martinez (8/20/2007, B190508) 2007 Cal. App. LEXIS 1359: 1) Prosecution used reasonable diligence in attempting to obtain the presence of the surviving clerk as a witness and, thus, the trial court did not err in admitting the preliminary hearing testimony of that clerk; 2) the court properly defined the requisite unlawful act for second degree murder and properlystated in its instruction the different types of intent for voluntary manslaughter; and 3) any arguable instructional error concerning the requisite intent for manslaughter was not prejudicial.
Alvarez v. Superior Court (8/24/2007, A117202) 2007 Cal. App. LEXIS 1404: Transcripts of the grand jury proceedings are open to the public after an indictment issues unless the court finds a reasonable likelihood that their release will prejudice the defendant’s right to a fair trial. (See PC 938.1(b).) “Reasonable likelihood” standard doesn’t violate the First Amendment.
People v. Tu (8/27/2007, A105905) 2007 Cal. App. LEXIS 1409: Juvenile priors may be used to aggravate adult sentences after Cunningham v. California (2007) ____ US ____ [127 SCt 856].
People v. Murphy (8/29/2007, C046923) 2007 Cal. App. LEXIS 1433: Defendant properly convicted of sale of cocaine and of a separate count of possession for sale of the very same rock of cocaine.
People v. Kelly (8/29/2007, A115715) 2007 Cal. App. LEXIS 1435: The defendant was convicted of PC 966, possession of sling shot and box cutters burglary tools.
Ninth Circuit Court of Appeal(August 1, 2007 – August 31, 2007)
United States v. Larson (8/1/2007, 9th Cir., No. 05-30076, No. 05-30077) 2007 U.S. App. LEXIS 18248: Defendant’s Sixth Amendment Confrontation Clause rights were violated when he was barred from cross-examining a prosecution witness about a mandatory minimum prison sentence that the witness would have faced but for their cooperation with the prosecution. Where such sentence was sufficiently severe, the defendant’s right to explore the witness’ bias outweighed the governmental interest in preventing a jury from inferring the defendant’s potential sentence. (See United States v. Chandler (3th Cir. 2003) 326 F3d 210, 223.)