CALIFORNIA CASE LAW UPDATE – Selected California Cases
California Supreme Court (August 1-31, 2010)
Death penalty. People v. Verdugo (8/2/2010, S083904) 50 C4th 263: Denial of second (Keenan) counsel proper when first counsel’s declaration insufficient as it contained nothing more than a bare assertion that counsel’s services were required. No Brady violation where DA’s notes of witness interview were not exculpatory. Any statutory violation was harmless as court granted defendant additional time to review notes or recall witnesses. Information re witness relocation not “apparent” Brady error, and no prejudice shown. Evidence that investigating officers had been exonerated of charges that they fabricated evidence in another case properly excluded under EC 352. Insufficient evidence to support lesser manslaughter instruction. Failure to give pinpoint instruction on voluntary intoxication forfeited by lack of request, and it was inconsistent with other defenses. Penalty phase issues: victim impact, scope of cross-examination, timing of defense closing, instructions, challenges to California death penalty scheme.
Preindictment Delay. People v. Cowan (8/5/2010, S055415) 50 C4th 401: The trial court required to weigh the prejudice against the justification and then rule. Intentional delay by the prosecution for tactical advantage requires only a minimal showing of prejudice to justify dismissal. A negligent delay requires more prejudice.
Death Penalty. People v. Brady (8/9/2010, S078404) 50 C4th 547: Third party guilt and impeachment evidence excluded. Prosecution’s comment on defendant’s failure to testify not Griffin error. Admission of victim’s home videos not victim impact error.
Adoptive Admissions/Aranda/Bruton. People v. Jennings (8/12/2010, S081148) 50 C4th 616: California Supreme Court finds adoptive admissions for statements made by the wife (co-defendant) and in response the defendant was silent or made equivocal or evasive responses.
Spontaneous Statements. People v. Lynch (8/12/2010, S026408) 50 C4th 693: Admission of spontaneous statements was error because declarant was thoughtful and reflective.
Faretta. People v. Lynch (8/12/2010, S026408) 50 C4th 693: Court did not err in denying the defendant’s Faretta motions for lack of timeliness, especially since the defendant gave no explanation for why he had waited nearly three years to express concern about counsel’s perceived deficiencies at preliminary hearing, inexplicably waited until after his motion to disqualify the trial judge had been granted to seek to withdraw it, and gave no explanation at the hearings on the Faretta motions why he had waited nearly four years, or until the parties were prepared to proceed to trial, to seek self-representation.
SVP. Moore v. Superior Court (8/19/2010, S174633) 50 C4th 802: A defendant in a Sexually Violent Predator (SVP) proceeding does not have a due process right to not be tried or committed while mentally incompetent.
Discovery (PC 1054.9). Barnett v. Superior Court (8/26/2010, S165522) 50 C4th 890: Because PC 1054.9 provides only for specific post-conviction discovery, defendants seeking discovery beyond recovering what the prosecution had provided to the defense before trial must show a reasonable basis to believe that specific requested materials actually exist. They do not additionally have to show that they are material within the meaning of Brady v. Maryland (1963) 373 U.S. 83 and its progeny. Section 1054.9 does not govern materials in the possession of out-of-state law enforcement agencies that merely provided the prosecution with information or assistance, and did not act as part of any law enforcement team conducting a joint investigation.
Habeas Corpus: Death Penalty — “Shell” Petition Seeking Extension Of Time. In re Morgan (8/30/2010, S162413) 50 C4th 932 and In re Jimenez (8/30/2010, S167100) 50 C4th 951: “Cursory” one-claim habeas petition, without supporting exhibits, asking court to defer decision until habeas counsel had adequate opportunity to investigate claims to be raised in an amended petition is granted when defendant had to wait 8 1/2 years for counsel’s appointment, after invoking his statutory right to the court’s appointment of habeas counsel pursuant to Government Code 68662.
Grants Of Review:
Maldonado v. Superior Court REV GTD (8/11/2010, S183961) 184 CA4th 739: (1) Was the order compelling a mental examination of petitioner under PC 1054.3(b), reviewable by pretrial writ? (2) Should the prosecution be permitted to attend the examination? (3) Should the results of the mental examination be disclosed to the prosecution before trial, or only after the defendant presents mental state evidence at trial? (4) Should the trial court review the results of the mental examination in camera and on the motion of the defense to determine if they contain privileged material?
People v. Chikosi REV GTD (8/11/2010, S184190) 185 CA4th 238: Briefing deferred pending decision in People v. Dungo REV GTD (12/2/2009, S176886) 176 CA4th 1388, People v. Gutierrez REV GTD (12/2/2009, S176620) 177 CA4th 654, People v. Lopez REV GTD (12/2/2009, S177046) 177 CA4th 202, and People v. Rutterschmidt REV GTD (12/2/2009, S176213) 176 CA4th 1047, which present issues concerning the right of confrontation under the Sixth Amendment when the results of forensic tests performed by a criminalist who does not testify at trial are admitted into evidence and how the decision of the United States Supreme Court in Melendez-Diaz v. Massachusetts (2009) 557 US ___ [174 LEd2d 314; 129 SCt 2527], affects this court’s decision in People v. Geier (2007) 41 C4th 555.176983) 2009 Cal. App. Unpub. LEXIS 7063, which includes the following issues: (1) Did the trial court err in dismissing this case for violation of defendant’s statutory right to a speedy trial on the ground no criminal courtroom was available? (2) Should criminal cases facing dismissal on speedy trial grounds be given precedence over civil cases pursuant to PC 1050(a), either as a matter of law or under the circumstances of this case?
Review in the following case was dismissed in light of the 2010 amendments to PC 12370 (Stats. 2010, ch. 21):
People v. Saleem REV GTD (3/10/2010, S179660) 180 CA4th 254.
California Courts of Appeal (August 1-31, 2010)
Controlled Substances: Knowledge Of Quantity Not Required. People v. Busch (8/4/2010, C061186) 187 CA4th 150: Because knowledge of the weight of marijuana is not an element of the crimes of transportation of more than 28.5 grams of marijuana or possession of more than 28.5 grams of marijuana, the court need not instruct the jury that a conviction for either offense is dependent on a finding of defendant’s knowledge of the weight of the contraband.
PC 654. People v. Valli (8/5/2010, C057362) 187 CA4th 786: Under PC 654 and related authority addressing prohibited multiple prosecution for the same acts or course of conduct, where evidence needed to prove one offense necessarily supplies proof of another offense, the two offenses must be prosecuted together.
Reviewability: No Obligation To Renew Objection. People v. Hall (8/9/2010, B215310) 187 CA4th 282: Defendant did not forfeit right to argue chain of custody by failing to renew objection. “Once an objection has been fully considered and overruled, it is not necessary to repetitiously renew the objection in the same trial to preserve the issue on appeal.” Distinguishes People v. Holloway (2004) 33 C4th 96 and People v. Morris (1991) 53 C3d 152 (overruled on other grounds in People v. Stansbury (1995) 9 C4th 824, 830, fn. 1 because there the objection was made in a pretrial or in limine context and counsel failed to renew it at trial).
Newly Discovered Evidence: Requirements For New Trial. People v. Hall (8/9/2010, B215310) 187 CA4th 282: 1) The evidence, and not merely its materiality, was newly discovered; 2) the evidence was not merely cumulative; 3) the evidence was such as to render a different result probable on a retrial of the case; 4) the party could not with reasonable diligence have discovered and produced it at the trial; and 5) these facts were shown by the best evidence of which the case admits. (People v. Delgado (1993) 5 C4th 312, 328.) In addition, the newly discovered evidence must contradict the strongest evidence against the defendant. (Delgado, supra, 5 Cal.4th at p. 329.)
Shooting At Occupied Vehicle. People v. Jones (8/9/2010, D055087) 187 CA4th 266: Jury properly instructed that defendant could be convicted of shooting at an occupied vehicle if she was standing outside the vehicle, and reached in through the window to fire the gun. Case of first impression in interpreting word “at” in PC 246.
Kidnapping For Ransom Requires Lack Of Consent By The Victim. People v. Eid (8/19/2010, G041759) 187 CA4th 859: CALCRIM 1202 instruction on kidnapping for ransom is incomplete because it fails to inform the jury of the prosecution’s burden to prove that the victim did not consent to being confined (or another predicate act) and that the defendant did not actually and reasonably believe the victim consented. (See People v. Isitt (1976) 55 CA3d 23, 28.) The trial court errs when it fails to charge the jury sua sponte on these elements of the offense. Lack of consent and lack of reasonable belief in consent are defenses to kidnapping for ransom, as to which the trial court must instruct the jury if supported by the evidence. (People v. Mayberry (1975) 15 C3d 143, 157.) Where the jury asked the trial court to define “kidnapping,” the court abused its discretion by only instructing on simple kidnapping and by deleting a portion of the standard instruction CALCRIM 1215. The trial court’s instructional errors were cumulative and prejudicial where they precluded the jurors from determining whether the alleged victim stayed with the defendants by her own volition or whether the defendants actually and reasonably believed she did. (See People v. Flood (1998) 18 C4th 470, 504; Chapman v. California (1967) 386 US 18, 24.)
Melendez-Diaz Confrontation. People v. Miller (8/20/2010, E049206) 187 CA4th 902: A defendant’s Sixth Amendment confrontation rights are not violated by the admission of DNA test results through the testimony of an expert who did not personally perform the tests.
Vehicular Homicide: Circumstances Of Driving. People v. Moore (8/23/2010, B215307) 187 CA4th 937: Circumstances of defendant’s driving that led to a fatal vehicle collision, absent alcohol or high speed flight from officers, are factors to be considered in evaluating culpability for second-degree murder.
Felony Murder And Reaching A Place Of Apparent Safety. People v. Russell (8/23/2010, D054408) 187 CA4th 981: The felony murder escape rule applies to residential burglary, regardless of whether the residence is occupied at the time, or whether the felon is knowingly fleeing police. At the time appellant burglarized a residence, no one was home.
Hofsheier Extension Rejected. People v. Jeha (8/24/2010, C061980) 187 CA4th 1063: Mandatory sex offender registration for sexual penetration by a foreign object (PC 289(d)) violates neither equal protection nor due process.
Involuntary Manslaughter, Criminal Negligence, And Causation. People v. Butler (8/24/2010, D054120) 187 CA4th 998: A conviction for involuntary manslaughter requires a showing that the defendant’s conduct proximately caused the victim’s death; and where there are multiple concurrent causes of death, the jury need only decide whether defendant’s conduct was a substantial factor in causing the death.
The Elements Of Premeditation. People v. Nazeri (8/25/2010, G041897) 187 CA4th 1101: Evidence sufficient to sustain a finding of premeditation and deliberation for first-degree murder includes planning activity, motive, and manner of killing.
Escape Requires Going Beyond Prison Boundaries. People v. Bailey (8/26/2010, H034382) 187 CA4th 1142: The crime of escape from prison (PC 4530) requires proof the defendant has gone beyond the boundary of the prison facility. Appellant argued the evidence was insufficient to sustain a conviction for escape from prison.
Attempted Escape Is Not Lesser Included Of Escape. People v. Bailey (8/26/2010, H034382) 187 CA4th 1142: Where evidence was insufficient to convict him of escape, and jury was not instructed on attempted escape, the defendant could not be convicted of attempted escape, even though evidence was sufficient to prove such an attempt. Even though some cases have held that the appellate court may, in lieu of granting a new trial on a lesser included offense, modify a judgment to reflect a conviction for the lesser included offense. (People v. Navarro (2007) 40 C4th 668, 671; see also People v. Rojas (1961) 55 C2d 252, 260-261 [attempted stolen property; People v. Layman (1968) 259 CA2d 404, 409 [attempted grand theft].) However, an attempt to escape is not a lesser included offense to the offense of escape.
Death Penalty: Post-Conviction Discovery. Baca v. Superior Court (8/31/2010, C062609) 187 CA4th 1534: A discovery motion under PC 1054.9 may be denied when the motion is filed to discover matters relevant to the prosecution of a writ on grounds already litigated and decided against the petitioner in a prior habeas.
Double Jeopardy: Partial Acquittal. Brown v. Superior Court (8/31/2010, B221980) 187 CA4th 1511: Generally, a defendant bears the burden of establishing a defense of double jeopardy. But, in the unique circumstance where the prosecution’s strategic charging decisions and trial theory are inconsistent with the specificity of the evidence presented at trial, then the prosecution has the burden of proving the charges to be retried involved different offenses than those involved in the jury’s convictions or acquittals.
Estes Robbery Where the Victims Are Mall Security Guards/Faretta. People v. Bradford (8/31/2010, A125040) 187 CA4th 1345: (1) A mall security guard can be the victim of a robbery despite not being the owner of the property or an employee of the store that owned the property. (2) In a related contention, appellant argued CALCRIM 1600 was deficient in that it failed to tell the jury it needed to find a special relationship existed to convey constructive possession. The court rejected the argument because the jury was told it had to find the guards were “representatives” of the store, which the court viewed as a more stringent showing. Given the jury found the guards qualified as representatives of the store, there is no reasonable likelihood the jury failed to find a special relationship. (3) Appellant’s mid-trial Faretta motion was properly denied.
9th Circuit Court Of Appeals
(August 1-31, 2010)
Substitution Of Retained Counsel With Appointed Counsel. U.S. v. Rivera-Corona (8/18/2010, 9th Cir. No. 08-30286) 2010 U.S. App. LEXIS 17190: In reviewing a defendant’s motion to discharge privately-retained counsel and to proceed with court-appointed counsel, the appellate court should determine if (1) the court conducted an “appropriate inquiry” into the defendant’s financial eligibility; (2) if so, was the court correct in its ultimate conclusion of financial eligibility; and (3) if the defendant was eligible, did the court properly weigh the interests of justice?