CALIFORNIA CASE LAW UPDATE – Selected California Cases
California Supreme Court (August 1-31, 2011)
Selected Decisions:
Failing To Properly Instruct The Grand Jury About Mens Rea. Stark v. Superior Court (8/1/2011, S145337) 52 C4th 368: PC 424, the misappropriation of funds by a public officer, is a general intent crime which includes a mental state of either actual knowledge of the legal duty which is violated, or criminal negligence in failing to know the legal requirements of the office. An indictment based on improper instruction to the grand jury on the mental state element of the offense is subject to dismissal pursuant to PC 995 because it raises the possibility that the defendant may have been indicted on less than probable cause. Despite the mental state requirement, the prosecutor instructed the grand jury that PC 424 is simply a general intent crime and ignorance of the law is no excuse.
Threatening a Person for Helping the Police or the Prosecutor. People v. Lowery (8/11/2011, S179422) 52 C4th 419: PC 140(a) (threat against crime victim) addresses only true threats, as evaluated under a reasonable person standard, and, as such, it does not violate the First Amendment.
ADW Is LIO Of ADW By A Lifer. People v. Milward (8/18/201, S182263) 52 C4th 580: The crime of aggravated assault is a lesser included offense of aggravated assault by a life prisoner.
Witt/Witherspoon Objection Now Required. People v. McKinnon (8/22/2011, S077166) 52 C4th 610: A Witt (469 US 412)/Witherspoon (391 US 510) issue may no longer be raised on appeal unless trial counsel raised it below.
Crawford (541 US 36) And Bryant (131 SCt 1143). People v. Blacksher (8/25/2011, S076582) 52 C4th 769: Crawford is not applicable to statements made to assess the emergency and “to determine defendant’s whereabouts and evaluate the nature and extent of the threat he posed.”
Grants of Review
People v. Park REV GTD (8/10/2011, S193938) 2011 Cal. App. Unpub. LEXIS 3321: Should the enhancement imposed on defendant under PC 667(a), be stricken because his prior conviction for a serious felony was reduced to a misdemeanor under PC17(b), and dismissed under PC 1203.4?
People v. Cottone REV GTD (8/17/2011, S194107) 195 CA4th 245: Did the Court of Appeal err by holding (a) that a prior sexual offense committed by defendant when he was under the age of 14 could not be admitted as propensity evidence under EC 1108 without a finding by the jury that he appreciated the wrongfulness of his actions at the time he committed the prior offense, and (b) that the failure to instruct the jury on this question constituted reversible error?
People v. Tauch REV GTD (8/31/2011, S194385) 2011 Cal. App. Unpub. LEXIS 4022: Briefing deferred pending decision in People v. Mesa REV GTD (10/27/2010, S185688) 186 CA4th 773, which presents the following issue: Does PC 654 bar the imposition of separate sentences for the offense of active participation in a criminal street gang in violation of PC 186.22(a), and for the crimes used to prove one element of that offense – that the defendant have promoted, furthered, and assisted felonious criminal conduct by members of the gang?
Dispositions
Review in the following case was dismissed in light of People v. Zambia (2011) 51 C4th 965:
People v. Cason REV GTD (3/18/2010, S179344) 179 CA4th 1419
The following case was transferred for reconsideration in light of People v. Zambia (2011) 51 C4th 965:
People v. Tillis REV GTD (5/20/2010, S180501) 2010 Cal. App. Unpub. LEXIS 958
California Courts of Appeal (August 1-31, 2011)
Selected Decisions:
Seizure Of Arrestee’s DNA. People v. Buza (8/4/2011, A125542) 197 CA4th 1424: State seizure of arrestee’s DNA violates the Fourth Amendment.
Definition Of “Common Scheme Or Plan.” People v. Green (8/5/2011, D057178) 197 CA4th 1485: The phrase “common scheme or plan” in PC12022.6(b) does not have a technical meaning, but rather are understood to have a plain, ordinary meaning these words commonly convey.
Great Taking: Aggregation Of Losses. People v. Green (8/5/2011, D057178) 197 CA4th 1485: Aggregation of losses to impose a PC 12022.6 great taking enhancement is improper where comparison of offenses does not reflect sufficient concurrence of common features showing an overall plan.
Voluntary Manslaughter As Unintentional Killing During A Felony. People v. Byrant (8/9/2011, D057570) 198 CA4th 134: Court’s failure to instruct jury on theory of voluntary manslaughter based on commission of inherently dangerous felony, was reversible error. An unintentional killing without malice committed during the course of an inherently dangerous assaultive felony, is voluntary manslaughter. (People v. Garcia (2008) 162 CA4th 18.) The trial court should have instructed the jury on this theory.
Intent To Kill Of Aider And Abettor. People v. Battle, et al. (8/9/2011, C063013) 198 CA4th 50: PC 190.2 merely requires the aider and abettor to intend to kill at the time of aiding and abetting.
Withdrawal Defense. People v. Battle, et al. (8/9/2011, C063013) 198 CA4th 50: Barron claimed the court erred in not instructing the jury that he could assert the defense of withdrawal if he attempted to notify the other participants in the killing of his withdrawal, but such notice was impossible because, at that moment, the killing occurred. This issue was forfeited for lack of objection and in any event, lacks merit. Waiting too long before attempting to withdraw, thus making it impossible to withdraw, or prevent the crime, does not qualify to raise the withdrawal defense.
Imperfect Self-Defense. People v. Battle, et al. (8/9/2011, C063013) 198 CA4th 50: Even assuming the intimate partner battering syndrome applies in this context, the instruction was not supported here.
Application Of Provocation To Lying In Wait Murder. People v. Battle, et al. (8/9/2011, C063013) 198 CA4th 50: There was no error when the court instructed the jury that provocation did not apply to murder while lying in wait or conspiracy to commit murder.
The Timing Of Lying In Wait. People v. Battle, et al. (8/9/2011, C063013) 198 CA4th 50: The court instructed the Abramyan jury that a substantial period of lying in wait could occur within 90 seconds. He alleged this was an incorrect statement of law and violated due process because it implied that a period of time longer than 90 seconds “must be substantial.” However, this was a correct statement of law and did not imply that a longer period must be substantial.
Sufficiency Of Financial Gain Special Circumstance. People v. Battle, et al. (8/9/2011, C063013) 198 CA4th 50: PC 190.2(b) differs from the general aiding and abetting statues in that it also includes inducing and soliciting the offense.
PC 4573.5. People v. Torres (8/11/2011, B226903) 198 CA4th 329: PC 4573.5 (bringing an alcoholic beverage into place where prisoners are in custody) requires evidence that defendant “knowingly” brought the contraband into the facility.
No Post-Verdict Sanction For Discovery Violation. People v. Bowles (8/11/2011, D057119) 198 CA4th 318: The trial court has no power to grant sanctions for the prosecution’s failure to provide discovery under PC 1054.5(b) once the verdict has been rendered.
Sex Offender Registration And Equal Protection. People v. Singh (8/11/2011, D059022) 198 CA4th 364: Mandatory sex offender registration for PC 288(a), does not violate the right to equal protection.
PC 288(a): Statute Of Limitations. People v. Smith (8/12/2011, C063545) 198 CA4th 415: Under certain circumstances, PC 803(f), extends the statute of limitations for PC 288(a) (lewd and lascivious acts on a child under the age of 14 years).
PC 288.3: Constitutionality. People v. Keister (8/15/2011, C065219) 198 CA4th 442: PC 288.3(a) (communication with minor with knowledge and intent to commit specified sex offense) is not unconstitutional.
Fixing Minor Errors Of Omission. People v. Mesa (8/16/2011, B226327) 198 CA4th 468:PC 995a(b)(1), permits the trial court to deny a section 995 motion to set aside the information where the claim is based on a minor error which can be expeditiously corrected by the court taking judicial notice of its own record.
Prior Bad Acts: EC 352. People v. Lopez (8/19/2011, H034619) 198 CA4th 698: The admission of prior bad acts involving theft required reversal of a first-degree burglary conviction where the prejudicial effect outweighed the probative value.
Timely Filing Of An Information Received But Not Filed By The Clerk. People v. Stiehl (8/19/2011, C066318) 198 CA4th 720: The clerk’s receipt of the criminal information within 15 days after a defendant is held to answer at a preliminary hearing is deemed “filed” and satisfies statutory requirements.
CC 376. People v. Lopez (8/19/2011, H034619) 198 CA4th 698: CALCRIM 376 on possession of recently stolen property does not reduce the prosecution’s burden of proof, but prohibits the jury from drawing an inference of guilt solely from possession, without more.
Prosecution Instructions Based On Collateral Estoppel. People v. Burns (8/22/2011, C063603)198 CA4th 726: The People may not invoke collateral estoppel to obtain a jury instruction about counts on which the defendant was convicted at a first trial if that conviction is still subject to appeal.
Hit and Run And Duty To Render Aid – Applicability To Owner Of Vehicle Who Was A Passenger. People v. Mace (8/24/2011, F060054) 198 CA4th 875: The obligations of a driver under VC 20001 and 20003 extend to the owner of the vehicle who is riding in the vehicle with full authority to direct and control the operation of the vehicle and the onus is on him to check on the welfare of others to determine if anyone is injured and if assistance is necessary.
EC 1228 Exception To Hearsay Rule. People v. J. A. (8/25/2011, B225717) 198 CA4th 914: Where minor confessed to molestation, child victim’s out-of-court statements are admissible to prove corpus delicti of crime.
Ex Post Facto And The Change In The Law On When Murder Can Be Filed. Strong et al. v. Superior Court of Orange County (8/29/2011, G045192) 198 CA4th 1076: In 1980, the defendant shot a sheriff’s deputy, paralyzing him. The defendant was convicted and sent to prison; eventually he got parole. At the time, PC 194 codified the rule that a murder could be prosecuted only if the person died within 3 years and a day of the act at issue. In 1997, the Legislature repealed 194. The sheriff’s deputy died in 2010, 29 years after the shooting. The coroner concluded that the shooting was the cause of death. The murder charges now filed were barred by the ex post facto ban.
IAC: Duty To Investigate All Defenses. In re Hill (8/29/2011, D058671) 198 CA4th 1008: Defense counsel has an obligation to investigate all possible defenses and must not select a strategy without carrying out an adequate investigation.
Is MDMA On The Controlled Substance List? People v. Le (8/29/2011, B224042) 198 CA4th 1031: The evidence must support a finding that a substance is one of those prohibited by HS 11378 and 11379.
Robbery-Murder Special Circumstance. People v. Lopez, et al. (8/30/2011, C065058) 198 CA4th 1106: Defendant’s act of luring victim to secluded location of robbery reflects indifference to the victim’s life and supports the robbery-murder special circumstance.
CC 400: “Equally Guilty” Language – Modification Must Be Requested. People v. Lopez, et al. (8/30/2011, C065058) 198 CA4th 1106: The “equally guilty” language in the aiding and abetting instruction was harmless error. Usually, a person who aids/abets another in committing a crime is also guilty of the crime committed. Nonetheless, in some circumstances the aider may be found guilty of a lesser or greater crime than the perpetrator. The introductory aiding/abetting instruction (CALCRIM 400) used here contained language that the aider was equally guilty of the crime abetted (it has been amended to remove this language). Because the instruction is generally correct, but may be incomplete under some circumstances, a defendant must request modification of the instruction to avoid forfeiting the issue on appeal.
Bringing Drugs Into Jail Is A Nonviolent Offense. People v. Parodi (8/30/2011, A130758) 198 CA4th 1179: Bringing drugs into a jail is not a “nonviolent drug possession offense” for purposes of Proposition 36.
Being Sentenced For An Offense For Which The Defendant Was Never Convicted. People v. Torres (8/30/2011, H035626) 198 CA4th 1131: PC 136.1, the dissuading a witness statute, lists 20 offenses. The defendant was charged with the statute generally; there was no allegation of use of force or threat of force. But the trial judge sentenced the defendant for violation of PC 136.1(c), a subdivision triggered by force or threat of force. The AG conceded that the defendant was sentenced for an offense for which he was never actually convicted. Accordingly, the judgment was reversed.
Abiding Conviction And Moral Turpitude Misdemeanors. People v. Muniz (8/31/2011, E049333) 2011 Cal. App. LEXIS 1146: The judge told the jury that “abiding conviction” in the reasonable doubt jury instruction means, “a long-lasting belief when you come to a verdict you will be comfortable with it the day you do it, two months or a year from now.” The dissent concluded that this greatly lessened the burden of proof, because being comfortable with a verdict a day or two after that verdict isn’t really an abiding conviction. But the majority dismissed this concern.
Misdemeanor Vandalism Involves Moral Turpitude. People v. Muniz (8/31/2011, E049333) 2011 Cal. App. LEXIS 1146: Appellant was impeached with prior conduct involving misdemeanor vandalism. The court found that misdemeanor vandalism involves moral turpitude as does felony vandalism. In People v. Campbell (1994) 23 CA4th 1488, the court held that felony vandalism involved moral turpitude as it required maliciousness. In the instant case, the reasoning of Campbell applies to misdemeanor vandalism because in 2002, when appellant committed his act of misdemeanor vandalism (spray painting graffiti), the misdemeanor statute also required maliciousness.
