CALIFORNIA CASE LAW UPDATE – Selected California Cases
California Supreme Court (December 1-31, 2010)
Stun Belt: Judge Must Make A Finding Of Manifest Need. People v. Howard (12/16/2010, S050583) 51 C4th 15: The trial court erred in ordering that the defendant wear stun belt, in the absence of finding of manifest necessity; however, the error was harmless beyond a reasonable doubt where defendant made no assertion that he was affected by the belt in any way.
Active Gang Participation. People v. Albillar (12/20/2010, S163905) 51 C4th 47: (1) The substantive gang crime, PC 186.22(a), requires that a defendant actively participate in a gang with knowledge that the gang’s members engage in a pattern of criminal activity, and that the defendant “willfully promotes, furthers, or assists in any felonious criminal conduct by gang members.” However, criminal conduct need not be gang related. (2) The gang enhancement, PC 186.22(b), requires proof that the felony was committed with the specific intent to aid in criminal conduct by the gang members. The intent requirement can be satisfied by a showing that the intent for THIS criminal act was to aid in criminal conduct by gang members. The 9th Circuit has held that the criminal conduct has to be of another criminal act. (But see Garcia v. Carey (9th Cir. 2005) 395 F3d 1099; Briceno v. Scribner (9th Cir. 2009) 555 F3d 1069.) (3) The gang enhancement does not require that the defendant act with the specific intent to promote, further, or assist a gang; the statute requires only the specific intent to promote, further, or assist criminal conduct by gang members.
Whether Probation Conditions Can Be Based On Dismissed Counts. People v. Martin (12/30/2010, S175356) 51 C4th 75: In guilty plea cases involving a grant of probation, probation conditions cannot be based solely on dismissed counts unless the defendant agrees to them or unless there is a transactional relationship between the charges to which the defendant pled and the facts of the dismissed charges.
Grants of Review
People v. Bailey REV GTD (12/1/2010, S187020) 187 CA4th 1142, mod. 188 CA4th 327b: Upon finding that the prosecution introduced insufficient evidence to support defendant’s conviction for escaping from a state prison, could the Court of Appeal reduce the conviction to attempted escape, notwithstanding the trial court’s failure to instruct the jury on that offense, or would doing so violate defendant’s rights to due process and a jury trial?
People v. Craig REV GTD (12/15/2010, S187141) 2010 Cal. App. Unpub. LEXIS 6959: Briefing deferred pending decision in People v. Vang REV GTD (9/15/2010, S184212) 185 CA4th 309, which presents the following issues: (1) Did the Court of Appeal correctly find that the trial court erred in permitting the use of hypothetical questions of the prosecution expert witness? (2) If so, did the Court of Appeal correctly find the error to be harmless?
People v. Vidales REV GTD (12/15/2010, S187220) 2010 Cal. App. Unpub. LEXIS 7209: Briefing deferred pending decision in People v. Maultsby REV GTD (6/30/2010, S182042) 2010 Cal. App. Unpub. LEXIS 1882, which presents the following issue: Was defendant required to obtain a certificate of probable cause to raise on appeal a claim that his admissions regarding prior conviction allegations were not knowingly and intelligently made, even though he was convicted by jury of the underlying offense? (See PC 1237.5; People v. Fulton (2009) 179 CA4th 1230.)
People v. Davis REV GTD (12/21/2010, S187515) 2010 Cal. App. Unpub. LEXIS 7295: 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.
Review in the following case was dismissed in light of Lopez v. Superior Court (2010) 50 C4th 1055:
People v. Hubbard REV GTD (9/15/2010, S183807) 2010 Cal. App. Unpub. LEXIS 3856.
California Courts of Appeal (December 1-31, 2010)
Theft And Possession Of Gun: No PC 654 Violation Due To Different Intents. People v. Atencio (12/1/2010, C063710) 190 CA4th 695: Theft of a gun and then his possession of the weapon thereafter did not violate section 654 as the defendant harbored different intents. (See People v. Garfield (1979) 92 CA3d 475, 478.) The court rejected appellant’s contention that there was but one intent, to possess the weapon, and rejected the rationale of People v. Bradford (1976) 17 C3d 8, 22, and People v. Venegas (1970) 10 CA3d 814, 821.
EC 1108: Uncharged Molestation Of The Same Victim Has Limited Probative Value. People v. Ennis (12/1/2010, G041481) 190 CA4th 721: Evidence that a perpetrator molested the same victim even more times does not advance the prosecution’s case. Since the evidence is from and about the same victim, it does not corroborate the case in any significant way.
Cognizability On Appeal: Tentative Pretrial Ruling Does Not Preserve The Issue. People v. Ennis (12/1/2010, G041481) 190 CA4th 721: A tentative pretrial evidentiary ruling does not preserve an issue for appellate review.
Rejecting Evidence On Appeal: Inherent Improbability Standard. People v. Ennis (12/1/2010, G041481) 190 CA4th 721: The “inherent improbability” standard for rejecting evidence on appeal applies only when evidence is physically impossible or false on its face without resort to inferences or deductions.
Relating Natural And Probable Consequences To Attempted Murder. People v. Favor (12/2/2010, B215387) 190 CA4th 770: An instruction relating the natural and probable consequences doctrine specifically to premeditated attempted murder, and not just attempted murder, is not necessary if the jury is also properly instructed on premeditated attempted murder.
Child Molestation: Meaning Of 10 Years And Under. People v. Cornett (12/6/2010, A123957) 190 CA4th 845: Child who was 10 years and 11 months at time of offense was not “child … 10 years of age or under” within meaning of PC 288.7(b). Extensive discussion of cases from other jurisdictions.
Burglary: Whether Balcony Is Part Of Structure. People v. Jackson (12/8/2010, B218372) 190 CA4th 918: The unauthorized entry onto a balcony that is attached to a residence and is functionally connected with it, with the intent to commit theft, constitutes first-degree burglary. Whether the balcony qualified under this test is a question is one of law, and not fact. In determining whether a structure is part of an inhabited dwelling, the inquiry is whether it is functionally interconnected with and immediately contiguous to other portions of the house. An alternative inquiry in determining whether the balcony falls within the burglary statute is whether a reasonable person would believe the structure encloses an area into which the general public may not pass.
Sentencing: Judicial Plea Bargaining. People v. Labora (12/8/2010, E050692) 190 CA4th 907: DA appeal from guilty plea and sentence on grounds that judge engaged in judicial plea bargaining. Court agrees and remands to give defendant opportunity to withdraw guilty plea. Because defendant was charged with one serious felony, the court was precluded from engaging in plea bargaining (PC 1192.7), and therefore People had right to appeal. Because the court specified the punishment it would impose, the action constituted bargaining.
LIO: Battery And Lewd Acts On A Child. People v. Shockley (12/8/2010, F058249) 190 CA4th 896: Battery (PC 242) is not a lesser included offense of the crime of lewd acts on a child. Appellant was convicted of lewd acts on a child under age 14 (PC 288(a)).
Provocative Act Murder. People v. Gonzalez (12/9/2010, D055698) 190 CA4th 968: Substantial evidence supported appellant’s first-degree murder conviction under the provocative act murder doctrine when co-defendant shot by victim with gun provided to co-defendant by defendant (which she had brought to attack the victim). Provocative act doctrine applies when perpetrator of underlying crime instigates gun battle, and victim (or police) respond with privileged lethal force, killing perpetrator’s accomplice. (People v. Cervantez (2001) 26 C4th 860.)
Medication Of Incompetent Defendant. People v. Christiana (12/10/2010, E048681) 190 CA4th 1040: An order authorizing a hospital to involuntarily administer antipsychotic medication to a defendant found incompetent to stand trial and committed for treatment must be predicated, in part, on identification of the specific medication.
Cognizability: Failure To Make Timely And Specific Objection. People v. Polk (12/13/2010, A117633) 190 CA4th 1183: Defendant’s failure to make a timely and specific objection on the ground asserted on appeal makes that ground not cognizable.
Juvenile Has Right To Jury Trial On Sex Offense Which Triggers Residency Restriction. In re J.L. (12/16/2010, G040507) 190 CA4th 1394: Imposition of residency restrictions on a juvenile are so overwhelmingly punitive that a minor should be afforded a jury trial on the alleged sexual offense before the restrictions can be imposed.
Crawford: Victim’s Statement To Firefighter. People v. Nelson (12/17/2010, D057195) 190 CA4th 1453: The victim’s statement made to a firefighter while in an ambulance which identified appellant as the shooter was not “testimonial” under Crawford v. Washington (2004) 541 US 36 and its progeny.
Adverse Consequences Of Appeal: Presumption Of Vindictive Prosecution. People v. Puentes (12/20/2010, H034546) 190 CA4th 1480: The presumption of vindictive prosecution after the defendant exercised the right to appeal was not rebutted. In this second appeal, appellant argued he was penalized for appealing when the prosecution recharged the felony it had sought to dismiss in the interests of justice.
Unavailable Witness: Confrontation Satisfied By Opportunity To Cross-Examine At Preliminary Hearing. People v. Hollinquest (12/20/2010, A124613) 190 CA4th 1534: Since appellant had an opportunity to cross-examine the witness-turned-codefendant at the preliminary hearing, the court properly admitted the preliminary hearing testimony under EC 1291 when the witness became “unavailable” at trial.
Doyle: Post-Arrest Silence In Front Of Private Party. People v. Hollinquest (12/20/2010, A124613) 190 CA4th 1534: When a defendant’s post-arrest silence in front of a private party is primarily the result of a conscious exercise of constitutional rights, then the principles of Doyle v. Ohio (1976) 426 US 610 barring comment by the prosecutor on the defendant’s silence should apply.
Clerical vs. Judicial Error: Judge’s Reconsideration Of Order Dismissing Charges. People v. Nesbitt (12/22/2010, B218373) 191 CA4th 227: Whether the trial court has jurisdiction to reconsider an order dismissing a count in the information depends on whether the order is a final or an interim order.
Multiplicity Based On Single Act Of Intercourse: Rape Of Intoxicated Woman And Unconscious Woman Is One Offense Only. People v. Smith (12/22/2010, C061805) 191 CA4th 199: One act of sexual intercourse with a victim can support only one rape conviction.
Rape: Distinction Between Victim’s Poor Judgment And Inability To Exercise Judgement (CC 1002 and 1003). People v. Smith (12/22/2010, C061805) 191 CA4th 199: CALCRIM 1002 is adequate because it provides a real measure of the degree of the intoxication required because it says the victim must be “so intoxicated that she cannot give legal consent.” Moreover, the instruction also provides the legal definition of “reasonable judgment,” namely that a person can “understand and weigh the physical nature of the act, its moral character, and probable consequences.”
CALCRIM 1003 (rape of an unconscious woman) was not confusing.
Gang Expert. People v. Cabrera (11/30/2010, mod’d 12/23/2010, G042390) 191 CA4th 276: A gang expert can rely on hearsay such as police reports and departmental reports and notices to support his opinion as to the primary activity of a street gang.
Whether Reckless Driving Is A Strike. People v. Valenzuela (12/28/2010, C061539) 191 CA4th 316: Whether VC 23104 (reckless driving with injury) is a “strike” offense depends on whether the record establishes that defendant personally inflicted great bodily injury (GBI), as opposed to whether the driving proximately causes GBI.
EC 1109 Applicable When An Integral Part Of Charged Crime Involves Domestic Violence. People v. James (12/30/2010, F057974) 191 CA4th 478: A prior act of domestic violence is admissible under Evidence Code section 1109 when proof of the charged crime includes, as an integral part, conduct “involving domestic violence.”
9th Circuit Court Of Appeals
(December 1-31, 2010)
Jury Instruction Errors: Determination Of Prejudice – Questions By Jurors. Pulido v. Hedgpeth (12/21/2010, 9th Cir. No. 05-15916) 629 F3d 1007: Under the “substantial and injurious effect or influence” standard, the court found the instructional error harmless in light of the totality of the instructions given and the state of the evidence. Although the jury asked a series of questions about the jury instructions, the majority held the questions did not impact the instructional errors at issue.