CALIFORNIA CASE LAW UPDATE – Selected California Cases
California Supreme Court (December 1-December 31, 2007)
People v. Kelly (12/6/2007, S049973) 42 C4th 763: In a first degree murder, death penalty case, the conviction and sentence are affirmed on automatic appeal over claims of error regarding: 1) jury selection; 2) defendant’s absence from proceedings; 3) admission of evidence of uncharged conduct; 4) the sufficiency of the evidence; 5) jury instructions; 6) admission of victim impact evidence; 7) a refusal to give certain requested jury instructions; 8) whether California’s death penalty law is invalid because it does not provide for intercase proportionality review; 9) previously-rejected penalty contentions; 10) international law; and 11) cumulative error.
People v. Watson (12/17/2007, S131052) 42 C4th 822: A prisoner transferred from a state prison to a state hospital pursuant to PC 2684 is a person “confined in a state prison,” because such a prisoner is “temporarily outside the walls and bounds of the prison” within the meaning of that phrase as defined by PC 4504(b). Consequently, a section 2684 transferee is subject to prosecution for battery under PC 4501.5 and to the increased punishment provided upon conviction under that statute.
Grants Of Review:
People v. Ramirez REV GTD (12/12/2007, S156775) 154 CA4th 1290: Is grossly negligent discharge of a firearm (PC 246.3) a lesser included offense of malicious and willful discharge of a firearm at an inhabited dwelling (PC 246)?
People v. Yates REV GTD (12/12/2007, S157935) 2007 Cal. App. Unpub. LEXIS 7875: Briefing deferred pending decision in People v. Towne REV GTD (7/14/2004, S125677) 2004 Cal. App. Unpub. LEXIS 4760, and People v. French REV GTD (2/7/2007, S148845) 2006 Cal. App. Unpub. LEXIS 9689, which present issues concerning the use as aggravating sentencing factors of such factors as being on probation or parole when a crime was committed and prior unsatisfactory performance on probation or parole, and whether the trial court violated defendant’s Sixth Amendment right to a jury trial, as interpreted in Cunningham v. California (2007) 549 US ____ [166 LEd2d 856; 127 SCt 856], by imposing an upper term sentence based on aggravating factors not found true by the jury, where the defendant entered a no contest plea and was sentenced in accordance with his plea agreement.
People v. Chun REV GTD (12/19/2007, S157601) 155 CA4th 170: Does the offense of discharging a firearm at an occupied vehicle in violation of PC 246 merge with a resulting homicide under People v. Ireland (69) 70 C2d 522, if there is no admissible evidence of an independent and collateral criminal purpose other than to commit an assault?
People v. Tu REV GTD (12/12/2007, S156995) 154 CA4th 735, mod. 154 CA4th 1559a and People v. Grayson REV GTD (12/19/2007, S157952) 155 CA4th 1059: Briefing deferred pending decision in People v. Nguyen REV GTD (10/10/2007, S154847)152 CA4th 1205, which presents the following issue: Can a prior juvenile adjudication of a criminal offense in California constitutionally subject a defendant to the provisions of the three strikes law (PC 667(b)-(i), and PC 1170.12) although there is no right to a jury trial in juvenile wardship proceedings in this state?
People v. Brock REV GTD (12/19/2007, S157738) 155 CA4th 903: Briefing deferred pending decision in People v. Towne REV GTD (7/14/2004, S125677) 2004 Cal. App. Unpub. LEXIS 4760, which includes the question whether a trial court violates a defendant’s Sixth Amendment right to a jury trial, as interpreted in Cunningham v. California (2007) 549 US ____ [166 LEd2d 856; 127 SCt 856], by imposing an upper term sentence based on the fact that the defendant had served a prior prison term, the defendant was on probation or parole when the crime was committed, or the defendant’s prior performance on probation or parole was unsatisfactory, if those aggravating factors were not found true by the jury.
In re Rogers (12/19/2007, S084292) original proceeding related to the automatic appeal in People v. Rogers (2006) 39 C4th 826: Order to show cause issued and limited to claims of newly discovered evidence and use of false evidence, the prosecution’s failure to disclose exculpatory evidence, ineffective assistance of counsel, and cumulative penalty phase error.
California Courts of Appeal (December 1-December 31, 2007)
People v. Jones (12/3/2007, B189056) 157 CA4th 580 [modified at 2007 Cal. App. LEXIS 2076]: Violation of PC 246 (shooting into an occupied vehicle) can serve as the predicate felony for a conviction of second degree murder based on a theory of felony murder (distinguishing People v. Bejarano (2007) 149 CA4th 975). Application of the felony-murder rule in the context of a violation of PC 246 furthers the purpose of the second degree felony-murder doctrine; namely, deterrence of negligent or accidental killings that occur in the commission of dangerous felonies. Additionally, it will not otherwise preclude the jury from considering malice in the great majority of all homicides.
Abernathy v. Superior Court (12/3/2007, A119308) 157 CA4th 642: A defendant facing possible death sentence is entitled to daily transcripts of preliminary hearing as a matter of right under PC 190.9(a)(1), regardless of whether prosecutor has declared an intent to seek death penalty.
People v. Superior Court (Maldonado) (12/4/2007, B202492) 157 CA4th 694: One-year period of limitations under PC 803(f) does not begin to run upon a report of unlawful sexual conduct that does not include allegations of substantial sexual conduct.
People v. Prosser (12/4/2007, G038481) 157 CA4th 682: Where the owner of stolen property testifies as to its value at a restitution hearing, his or her testimony constitutes prima facie evidence of value, (see People v. Keichler (2005) 129 CA4th 1039, 1048), and the burden then shifts to the defendant to demonstrate that the proffered value is erroneous. (See People v. Fulton (2003) 109 CA4th 876, 886-887.) Where the owners of the property testified as to the loss of hundreds of thousands of dollars in jewelry, their testimony constituted substantial evidence of value, even though it was unsupported by receipts or appraisals, and even though a detailed description of each piece of jewelry was not given; it was up to defendant to obtain more particular descriptions through cross-examination, to seek whatever documentation she thought would be necessary to challenge the proffered values, and to object when the court ordered restitution without assigning a particular value to each individual piece of jewelry stolen. (See People v. Foster (1993) 14 CA4th 939.)
People v. Zacarias (12/4/2007, D049593) 157 CA4th 652: Conspiracy “to commit any crime” under PC 182 applies only to crimes punishable under California law. Therefore, the prosecution was erroneously allowed to prosecute the defendant for aggravated kidnapping based on a theory, among others, that he conspired to violate federal law by smuggling aliens. The error was prejudicial because it could not be determined on which theory he was convicted per People v. Guiton (1993) 4 C4th 1116, 1130.
People v. Moussabeck (12/7/2007, G038038) 157 CA4th 975: Court had no sua sponte duty under statutory elements test to instruct jury on misdemeanor child abuse as a lesser included offense of felony inflicting physical injury on a child. The misdemeanor offense may be committed without inflicting physical injury, and there was no duty to instruct under the accusatory pleading test where defendant was charged with having “willfully and unlawfully inflict[ed] cruel and inhuman corporal punishment and an injury resulting in a traumatic condition upon” the victim.
People v. Villa (12/17/2007, B195363) 157 CA4th 1429: Defendant cannot be convicted both of robbery and petty theft with a prior, arising from the same incident, since the prior conviction is a sentencing factor (per PC 666), rather than an element, so petty theft with a prior is a lesser included offense of robbery.
People v. Jones (12/17/2007, B193759) 157 CA4th 1373: The trial court retains authority to strike deadly or dangerous weapons use enhancements alleged pursuant to PC 12022(b). Appellant was convicted at jury trial of robbery, assault, personal infliction of great bodily injury, and personal use of a deadly or dangerous weapon. At sentencing, the trial court declined to strike the use enhancement, stating it lacked the discretion to do so. Applying rules of statutory construction, the appellate court determined that the court retained its authority to strike subdivision (b) as there was no express and clear intent by the Legislature to otherwise restrict it. Noting that appellant was entitled to an informed sentencing decision and that a court unaware of its sentencing discretion could not make such a decision (People v. Belmontes (1983) 34 C3d 335), the appellate court remanded for resentencing.
People v. Aispuro (12/18/2007, F052506) 157 CA4th 1509: An implied threat of harm, either verbally or physically, will support a conviction for felony false imprisonment and the threat of harm does not require the use of a deadly weapon or an express verbal threat to do additional harm. (Disagreeing with and distinguishing People v. Matian (1995) 35 CA4th 480.) Appellant accosted two young girls, laid his hands on them, caused them to cry, ordered them to sit in the middle of the street, and, when they refused, told them if they didn’t he would do something else. These words constituted sufficient evidence of an implied threat to harm so as to support the false imprisonment convictions.
People v. Calderon (12/19/2007, E041389) 158 CA4th 137: Kicking in the door of a residence is sufficient entry to constitute burglary. Appellant and his companions went to the victim’s house one night to collect a debt that appellant believed the victim owed him. Hearing the sound of the door handle moving, the victim looked out and saw the three men and told them to leave as he was going to call the police. One of the men responded by kicking in the door. Relying on the analysis of “entry” provided by the California Supreme Court in People v. Davis (1998) 18 C4th 712, the appellate court observed that kicking in the door to a home invades the possessory interests in the home and although the door did what it was designed to do, it was at the control of the invader and not the homeowner. As such, it constituted the requisite entry for burglary.
People v. Guess (12/21/2007, H029808) 158 CA4th 283: A defendant does not have a Sixth Amendment right to a jury trial and proof beyond a reasonable doubt to the determination of whether he was on probation at the time of the instant offense, when this factor is used to aggravate his sentence to the upper term (Almendarez v. Torres (1998) 523 US 224). In this remand from the California Supreme Court for reconsideration of the imposed upper term sentence in view of People v. Black (2007) 41 C4th 825 (Black II) and People v. Sandoval (2007) 41 C4th 825, the appellate court found that the Almendarez-Torres prior conviction exception included a defendant’s status of being on probation when the offense occurred because, like a prior conviction, said status can be readily determined by reference to court records pertaining to the conviction resulting in the grant of probation.
People v. Guess (12/21/2007, H029808) 158 CA4th 283: Denial of a continuance of the preliminary hearing was not an abuse of discretion (see People v. Jenkins (2000) 22 C4th 900, 1037), where the purpose of the proposed continuance was to permit counsel to better prepare for cross-examination of a prosecution witness, and where the cross-examination that occurred was adequate for purposes of preliminary hearing, as to which prosecution was not required to produce witness.
People v. Chakos (12/21/2007, G037004) 158 CA4th 357: A police officer’s expert testimony was insufficient to convict defendant of possessing marijuana with intent to sell where there was no substantial evidence that the officer had any expertise in differentiating citizens who possess marijuana lawfully for their own consumption under the Compassionate Use Act which allows persons to possess eight ounces of marijuana for a medical condition, from those who possess it unlawfully with intent to sell. The court found that this situation was similar to that found in People v. Hunt (71) 4 C3d 231.
People v. Le (12/27/2007, H030808) 158 CA4th 516: CALCRIM 917, which says that mere words can’t establish a defense to a battery, should not be given in a murder case. Provocative conduct may be physical or verbal, and it may comprise a single incident or numerous incidents over a period of time.
People v. Gray (12/31/2007, B192564) 158 CA4th 635: The trial judge erroneously modified the CALCRIM (316) on impeachment with a prior felony conviction to tell the jury that they were to decide whether the prior convictions involved moral turpitude. The decision on whether a prior conviction implicates moral turpitude is a decision that the JUDGE makes, not the jury.