CALIFORNIA CASE LAW UPDATE – Selected California Cases
California Supreme Court (August 7, 2006-August 31, 2006)
People v. Ramirez (8/7/2006, S012944) 39 C4th 398: Defendant had right to counsel of choice, even inexperienced counsel. (See also [NF] United States v. Gonzalez-Lopez (6/26/2006, No. 05-352) ___ US ___ [165 LEd2d 409; 126 SCt 2557].)
People v. Modiri (8/7/2006, S120238) 39 C4th 481: Group beating principles routinely given to juries for present and future sentencing purposes, CALJIC No. 17.20, as construed and applied by the courts, do not conflict with the requirement set forth in PC 1192.7(c)(8) that the defendant “personally inflict great bodily injury.”
In re Derrick B. (8/10/2006, S124205) 39 C4th 535: Error to order the a to register under section 290, subdivision (a)(2)(E), as a sex offender, unless the offenses are among those listed in subdivision (d)(3), which does not include sexual battery.
People v. Cook (8/14/2006, S042223) 39 C4th 566: There is no presumption of prejudice from absence of materials from appellate record, and defendant has burden of showing that record is inadequate to permit meaningful appellate review. (People v. Wilson (2005) 36 C4th 309, 325; People v. Hinton (2006) 37 C4th 839, 919.) There were enough other references in the record to permit review.
People v. Cook (8/14/2006, S042223) 39 C4th 566: Although when expert is appointed and testifies at guilt phase after defendant has placed mental condition at issue, court must instruct in the words of CALJIC 2.10 that the defendant’s statements made in the examination are admissible only for limited purpose of showing the information upon which the expert based the opinion, here the expert testified for the defense at penalty phase, and trial court had no sua sponte duty to instruct.
People v. Cook (8/14/2006, S042223) 39 C4th 566: Defense counsel’s decision not to contest one or more charges of murder at guilt phase of capital trial does not amount to a guilty plea requiring admonitions and waivers of the accused’s constitutional rights. (People v. Griffin (1988) 46 C3d 1011, 1029.)
People v. Cook (8/14/2006, S042223) 39 C4th 566: “Although the practice of allowing jurors to directly interrogate witnesses is justly criticized (People v. McAlister (1985) 167 CA3d 633), no such thing occurred here. The trial court required the jurors to submit in writing any questions they had of the court. Each question was then shown to counsel for both sides, and only after counsel acquiesced did the court itself ask the question of the witness. During the process outlined above, both sides were given the opportunity to object to juror questions.” In any event, the questions did not show that the jury had become parties to the litigation. They “were seeking to understand the testimony of numerous witnesses, some of it on technical subjects, in a complicated trial involving three murders committed on separate occasions.”
People v. Cook (8/14/2006, S042223) 39 C4th 566: Trial court has discretion and duty to ask questions of witnesses, provided this is done in an effort to elicit material facts or to clarify confusing or unclear testimony. (People v. Hawkins (1995) 10 C4th 920, 948; EC 775.) The court may not, however, assume the role of either the prosecution or of the defense. (People v. Carlucci (1979) 23 C3d 249, 258.) The court’s questioning must be “temperate, non-argumentative, and scrupulously fair” People v. Hawkins, supra, 10 C4th at p. 948), and it must not convey to the jury the court’s opinion of the witness’s credibility. (People v. Rigney (1961) 55 C2d 236, 241.) Here, “questions to the three witnesses were very few and neutrally phrased,” even if answers were not favorable to defendant.
People v. Ledesma (8/17/2006, S014394) 39 C4th 641: There was evidence that defendant may not have formed intent to steal from victim until after murder, so court should have instructed on theft as lesser of robbery. The evidence presented by the prosecution, however, overwhelmingly supported the conclusion that the primary motive for the killing was to prevent the victim from testifying that defendant had committed an earlier robbery.
People v. Lewis (8/24/2006, S033436) 2006 Cal. LEXIS 9974: Trial court not required to augment appellate record with its own trial notes (which in any event it had discarded). notes were the court’s own work product, and personal to the judge. (Copley Press, Inc. v. Superior Court (1992) 6 CA4th 106, 114-115 [holding that “rough” minutes of court clerk are public records open for inspection, and distinguishing personal bench notes of trial judge].) Under the principles applied in Copley, “bench notes are constructed so as to remind [the judge], in his personal fashion and not in a form digestible by the public, of the aspects of the case he thought important.” (Id. at p. 114.) They are not public or court records in the sense that they represent or record the official work or actions of the judge or his clerk.
People v. Stanley (8/24/2006, S022224) 2006 Cal. LEXIS 9944: Defendant’s request for self-representation was properly denied because he did not understand that the court would not be under further obligation to appoint standby counsel.
People v. Garcia (8/28/2006, S124090) 2006 Cal. LEXIS 9978: The court reaffirms the vitality of People v. Sims (1982) 32 C3d 468, which held that a welfare recipient who has been exonerated of fraud charges by the Department of Social Services in an administrative hearing cannot be criminally prosecuted for welfare fraud, because the doctrine of collateral estoppel bars the prosecution from relitigating issues that were determined in the administrative hearing
People v. Pokovich (8/31/2006, S127176) 2006 Cal. LEXIS 10228: The impeachment of a testifying defendant at trial with statements made before trial to mental health professionals during a court-ordered examination to determine the defendant’s mental competency to stand trial violates the federal Constitution’s privilege against self-incrimination.
Grants Of Review:
[NF] Chambers v. Superior Court (8/16/2006, S143491) 2006 Cal. App. Unpub. LEXIS 3874: Is information developed as a result of the receipt of information disclosed pursuant to a Pitchess motion (Pitchess v. Superior Court (1974) 11 C3d 531) subject to the same protective order as the information disclosed pursuant to the motion (EC 1045(e); see Alford v. Superior Court (2003) 29 C4th 1033), or can such derivative information be disclosed to and used by a defendant in a separate criminal proceeding?
[NF] People v. Alice (8/23/2006, S144501) 2006 Cal. App. Unpub. LEXIS 4057: (1) Does the prosecution have the right to appeal under PC 1238(a)(1) or (a)(10), from the trial court’s order dismissing a charge, when the dismissal made the defendant eligible for probation and the prosecution is prohibited under PC 1238(d) from appealing a grant of probation? (2) Did the Court of Appeal err under GovtC 68081 in not permitting briefing on the prosecution’s right to appeal under PC 1238(a)(10), when that basis for an appeal was first mentioned in the court’s tentative opinion?
[NF] Larranaga v. Superior Court (8/23/2006, S144818) 2006 Cal. App. Unpub. LEXIS 4722: Briefing deferred pending decision in [NF] Garcia v. Superior Court REV GTD (9/22/2004, S127432) 120 CA4th 1252, which presents the following issue: Is a defendant entitled to file a declaration under seal in support of a motion for discovery under Pitchess v. Superior Court (1974) 11 C3d 531, if the declaration contains information protected from disclosure by the attorney-client or work-product privilege, and, if so, may the trial court nonetheless grant counsel for the police department access to the sealed document so long as the access is accompanied by a protective order?
[NF] People v. Calhoun REV GTD (2/6/2005, S129896) 123 CA4th 1031. The court limited the issues to be briefed and argued to the following issues: (1) Was the defendant, who admits he was guilty of gross vehicular manslaughter as an aider and abettor because he engaged in a street race during which his opponent crashed into the victims’ car, subject to an enhancement under VC 20001(c), for fleeing the scene after “committing” gross vehicular manslaughter? (2) Can an upper term sentence be imposed for gross vehicular manslaughter based upon multiple victims as an aggravating factor, even though only one victim was named in each count? (See FORECITE F 12.70 n10; F 2140 Note 6.)
California Courts of Appeal (July 27, 2006-August 31, 2006)
Carter v. Superior Court (7/27/2006, B182641) 141 CA4th 992: Court could not force the defendant to undergo the drug therapy to restore his competency where strict criteria of Sell v. U.S. (2003) 539 U.S. 166 was not satisfied.
People v. Vance (7/31/2006, C049453) 141 CA4th 1104: Judge abdicated his responsibility by letting his bailiff decide whether civil committee should be shackled. “[A] defendant cannot be subjected to physical restraints of any kind in the courtroom while in the jury’s presence, unless there is a showing of a manifest need for such restraints.” (People v. Duran (1976) 16 C3d 282, 290-291.) Defense counsel’s request to have defendant unshackled was sufficient to preserve issue for appeal. The judge also erred in failing to formally instruct the jury regarding the defendant’s courtroom restraints.
People v. Johnson (7/31/2006, A111007) 141 CA4th 1161: Defendant’s use of force or fear to prevent a security guard from recovering stolen merchandise, within the meaning of People v. Estes (1983) 147 CA3d 23, was not error, since the theft was from the immediate presence of the victims, even though they were in a security monitoring room when he gained possession of the stolen goods. (See People v. Hayes (1990) 52 C3d 577; see also People v. Cooper (1991) 53 C3d 1158, 1165 [the taking must be from the immediate presence of the person having the right to the property].)
Jonathon M. v. Superior Court (7/31/2006, C052769) 141 CA4th 1093: Except in extraordinary circumstances, a trial judge should follow an opinion of the court of appeal that speaks to conditions or practices in the judge’s courtroom, even though the opinion is not final, until the opinion is unpublished or review is granted. A published opinion may be cited or relied on as soon as it is certified for publication or ordered published. (Calif. Rule of Court, rule 877(d).)
In re Frank S. (8/1/2006, F049045) 141 CA4th 1192: Expert’s opinion that the knife was possessed to benefit the gang was an improper opinion on an ultimate issue, and there was no other substantial evidence to support the expert’s claim.
People v. Rubio (8/1/2006, H028213) 141 CA4th 1214: Defendant was entitled to new trial where the juror, who disclosed the hearing impairment during voir dire and was instructed to raise her hand if she could not hear what was being said in court, acknowledged after trial that she missed much of the testimony but was too embarrassed to tell the court. Relying on People v. Nesler (1997) 16 C4th 561 for guidance on the standard of review for a motion for a new trial based on jury misconduct, is an independent review when the misconduct implicates a significant constitutional issue, which it did here, and the court reviewed the issue de novo. Adequate proof of jury misconduct raises a presumption of prejudice. (In re Hitchings (1993) 6 C4th 97, 118.) The issue is whether the defendant received a fair trial, before a competent jury (Tanner v. United States (1987) 483 US 107, 126). Here the juror was not being aided by a court provided listening devise, and therefore the defendant was denied his right to a fair trial.
People v. Brock (8/2/2006, B179876) 141 CA4th 1320: Statement made by defendant during plea negotiations should not have been admitted at trial as confession. A criminal defendant’s offer to plead guilty “is inadmissible in any action or in any proceeding of any nature…” (EC 1153.) “The purpose of the statute is to promote the public interest by encouraging the parties to settle a criminal case without the necessity of a trial.” (People v. Magana (1993) 17 CA4th 1371, 1376.) “Bona fide plea negotiations include statements made to the trial court and to the prosecuting attorney because those are the participants in a plea bargain.” (Id. at p. 1377.)
People v. Brock (8/2/2006, B179876) 141 CA4th 1320: Defendant who escaped from work furlough program should have been prosecuted under more specific provision (PC 4530(c)), that carries lesser punishment (not chargeable as a prior felony conviction). When Legislature has enacted a specific statute addressing a specific matter People may not prosecute under a general statute that covers the same conduct, but which prescribes a more severe penalty, unless legislative intent to permit alternative prosecution clearly appears. (Mitchell v. Superior Court (1989) 49 C3d 1230, 1250.)
People v. Alvarado (8/16/2006, B183150) 141 CA4th 1577: Prosecutor committed prejudicial misconduct when she began her rebuttal argument by stating, I have a duty and I have taken an oath as a deputy District Attorney not to prosecute a case if I have any doubt that that crime occurred and [t]he defendant charged is the person who did it. A prosecutor is prohibited from vouching for the credibility of witnesses or otherwise bolstering the veracity of their testimony by referring to evidence outside of the record. Nor is a prosecutor permitted to place the prestige of her office behind a witness by offering the impression that she has taken steps to assure a witness’s truthfulness. (People v. Frye (1998) 18 C4th 894, 971; accord People v. Stewart (2004) 33 C4th 425, 499.)
People v. Hayes (8/22/2006, B181822) 2006 Cal. App. LEXIS 1281: The defendant was convicted of battery with injury on a probation officer, PC 243(c)(1). Battery without injury on a probation officer is a necessarily-included misdemeanor, PC 243(b). Failure to give the jury that lesser was prejudicial since the facts here could have supported a jury verdict on that lesser offense.
People v. Bradley (8/24/2006, B175564) 2006 Cal. App. LEXIS 1290: Restitution is not a defense to theft of public funds. “Restoration of property feloniously taken or appropriated is no defense to a charge of theft.” (People v. Pond (1955) 44 C2d 665, 674.)
People v. Macarthur (8/24/2006, G035368) 2006 Cal. App. LEXIS 1291: Where some evidence suggested that property possessed may not have been taken with intent of depriving owner of possession for sufficiently extended time, defendant was entitled to instructions defining “stolen,” and “theft,” including intent requirement.
People v. Massie (8/29/2006, C050124) 2006 Cal. App. LEXIS 1307: Court addresses language in People v. Acevedo (2003) 105 CA4th 195 and People v. Brown (1989) 216 CA3d 596, “that when the facts ‘give equal support to two competing inferences, neither is established.’” (Acevedo, supra, 105 CA4th at p. 198; Brown, supra, 216 CA3d at p. 600.) “An inference is a logical and reasonable conclusion to be drawn from the proof of preliminary facts. It is the province of the trier of fact to decide whether an inference should be drawn and the weight to be accorded the inference. If the trier of fact’s conclusion reasonably and logically follows from the proof of the preliminary facts, an appellate court will not interfere with the conclusion, even if the appellate court believes that a contrary conclusion would have been reasonable. If, on the other hand, the conclusion is mere guesswork, an appellate court will consider it to be conjecture and speculation, which is insufficient to support a judgment. Acevedo and Brown involved speculation and correctly concluded that such speculation did not support the convictions in those cases. They cannot be read to stand for the proposition that a conviction must be reversed when reasonable but conflicting inferences could have been drawn by the trier of fact. Such a standard of review would be contrary to California Supreme Court precedent.”
People v. Frederick (8/29/2006, B163699) 2006 Cal. App. LEXIS 1309: An expert opinion is inadmissible “if it invades the province of the jury to decide a case.” (Piscitelli v. Friedenberg (2001) 87 Cal.App.4th 953, 972.) Such evidence is “wholly without value” to the trier of fact. (Id.) The determination whether an expert witness’ opinion bears upon or decides an ultimate issue in the case is sometimes a difficult decision, and “a large element of judicial discretion [is] involved.” (People v. Wilson (1944) 25 C2d 341, 349.)
People v. Johnson (8/31/2006, F048042) 2006 Cal. App. LEXIS 1338: Conviction of second degree murder, conspiracy to murder, and accessory to murder is reversed where the prosecutor’s withholding of police reports violated due process and requires a new trial.