CALIFORNIA CASE LAW UPDATE – Selected California Cases
California Supreme Court (December 1-31, 2011)
Improper Discharge Of Juror. People v. Allen & Johnson (12/5/2011, S066939) 2011 Cal. LEXIS 12893: Both the guilt and penalty phase judgments were reversed because the trial court improperly discharges a juror during guilt phase deliberations. Heightened standard of review is required to protect the defendant’s fundamental right to due process and a fair trial. The juror’s positive opinion about the reliability of Hispanics in the workplace was a permissible application of the juror’s life experience, not an impermissible use of evidence outside the record. The jury was instructed that they could reject a witness’ testimony if they found it to be false on a material point and that is the credibility evaluation reflected in his statement. Neither statement was a proper basis for discharge of the juror.
Withdrawal Of Plea Based On IAC. People v. Sanchez (12/5/2011, S188453) 53 CA4th 80: If a defendant seeks to withdraw his plea of guilty based on ineffective assistance of counsel, with a clear indication that he wants substitute counsel, then the procedure of a Marsden (People v. Marsden (1970) 2 CA3d 118) hearing is required before the appointment of counsel to assist with the motion to withdraw the plea.
PC 654. People v. Ahmed (12/22/2011, S191020) 53 CA4th 156: PC 654, a general statute, applies to enhancements if there is no specific statute that prevails. The sentencing limit of section 654 does not apply to enhancements which go to the nature of the offender, but it does apply to enhancements which go to the nature of the offense.
Grants of Review
People v. Gonzales REV GTD (12/14/2011, S197036) 199 CA4th 219: Briefing deferred pending decision in People v. Rodriguez REV GTD (1/12/2011, S187680) 188 CA4th 722, which presents the following issue: May an active participant in a criminal street gang be found guilty of violating PC 186.22(a), when, acting entirely alone, he commits a felony, and there is no other evidence indicating the crime had anything to do with the gang?
People v. Gray REV GTD (12/14/2011, S197749) 199 CA4th 167: Briefing deferred pending decision in People v. Shockley REV GTD (3/16/2011, S189462) 190 CA4th 896, which presents the following issue: Is battery a lesser included offense of committing a lewd act with a child under 14 years of age?
People v. Muniz REV GTD (12/14/2011, S196916) 198 CA4th 1324: Briefing deferred pending decision in People v. Aranda REV GTD (1/26/2011, S188204) 188 CA4th 1490, which issues concerning a trial court’s failure to give a standard reasonable doubt instruction.
People v. Le REV GTD (12/21/2011, S197493) 198 CA4th 1031: In the absence of expert testimony or a stipulation that MDMA/Ecstasy was a controlled substance or an analog of a controlled substance, did the Court of Appeal correctly hold that substantial evidence did not support defendant’s convictions?
Review in the following cases was dismissed in light of People v. Vang (2011) 52 CA4th 1038:
People v. Sitthideth REV GTD (9/15/2010, S186346) 185 CA4th 309
People v. Craig REV GTD (12/15/2010, S187141) 2010 Cal. App. Unpub. LEXIS 6959
California Courts of Appeal (December 1-31, 2011)
Personal Use Of A Firearm: Circumstantial Evidence. People v. Kovacich (12/1/2011, C061778) 201 CA4th 863: There was sufficient evidence of the personal use of a firearm in the commission of the murder based on circumstantial evidence, including forensic expert opinion about the genesis of a hole in a portion of the cranium.
Sufficiency Of Evidence: Uncertain Curbside Identification. People v. Mohamed ((12/5/2011, D058046) 201 CA4th 515: Curbside identifications that were not 100 percent certain were not so inherently improbable that there was insufficient evidence of identification.
Conspiracy As Theory Of Liability For Robbery. People v. Mohamed (12/5/2011, D058046) 201 CA4th 515: Instruction on conspiracy as a potential theory of liability for a robbery with three perpetrators was not error.
False Statements: Consciousness Of Guilt – Consideration Of Defendant’s Intoxication. People v. Wiidanen (12/5/2011, C065804) 201 CA4th 526: It was error to give the instruction on consciousness of guilt from false or misleading statements about the crime in combination with an unmodified version of the instruction on voluntary intoxication. The combination of CALCRIM 362 and 3426 prohibited the jury from considering voluntary intoxication for any purpose other than to decide whether he had knowledge that the victim was unconscious. The instruction was in error because it did not allow the jury to decide that the defendant might have been too intoxicated to know that his statements were false or misleading.
Multiple Convictions For Single Course Of Conduct. In re Witcraft (12/6/2011, H036768) 201 CA4th 659: The resolution of a first set of criminal charges, based on a course of conduct which included providing false insurance information, precluded a second prosecution for violation of PC 550 based on PC 654 and Kellett v. Superior Court (1966) 63 CA2d 822.
Medi-Cal Fraud. People v. Guzman (12/12/2011, B232299) 201 CA4th 1090: Where doctor used Medi-Cal billing code to obtain reimbursement for IUD implant, knowing the implant he used was not eligible for reimbursement, there is sufficient evidence to support fraud conviction.
Online Content Alleged To Be Defendant’s: Authentication. People v. Valdez (12/16/2011, G041904) 201 CA4th 1429: The requirement of a password to post and delete content on MySpace pages, as well as the consistency of the content on the pages, provides the necessary authentication for introduction of the MySpace pages for corroboration and foundation purposes.
Threatening Witness Or Victim (PC 140): Objective Test Required. People v. Lowery (12/19/2011, E047614) 201 CA4th 1549: The trial court erred when it failed to instruct the jury to apply an objective test in determining whether a statement is a “true threat.”
Expert Testimony: Drug Trafficking Organization. People v. Covarrubias (12/20/2011, D058298) 202 CA4th 1: The trial court erred in admitting expert testimony regarding the practices of drug trafficking organizations where there was no evidence appellant was a member of such an organization.
LWOP For Minor: Not Cruel And Unusual. People v. Blackwell (12/21/2011, A128197) 202 CA4th 144: The case of Graham v. Florida (2010) ___ US ___ [176 LEd3d 825; 130 SCt 2011] does not support appellant’s contention his LWOP sentence violates the Eighth Amendment because he was convicted of first degree murder with special circumstances.
Argumentative Prosecution Pinpoint Instruction. People v. Hunter (12/22/2011, A130641) 202 CA4th 261: A prosecution instruction pinpointing the defense theory, over the objection of the defense, is unduly argumentative, favors the prosecution by restricting the use of circumstantial evidence to raise a reasonable doubt, and violates the right to a jury trial, but it is nevertheless harmless beyond a reasonable doubt. The instruction did not direct a verdict, but it did impermissibly lighten the prosecution’s burden of proof. In such circumstances, the standard of Chapman v. California (1967) 386 US 18, 24 applies.
Faretta: Law Library Access. People v. James (12/22/2011, A128865) 202 CA4th 323: The right of self-representation does not encompass direct access to a publicly funded law library and there was no violation of the right by the jail providing access to legal materials through legal research assistants. The pro per defendant was not allowed direct access to the law library. He was required to use a “paging” system which provided only the specific materials requested. There was no evidence that the paging system failed to provide any particular request or that it impaired his ability to file numerous pretrial motions which were supported by appropriate authority.
MDO: Burden Of Proof. People v. Gregerson (12/22/2011, G044661) 202 CA4th 306: A Mentally Disordered Offender (MDO) has the burden of proof on his motion for outpatient treatment and the standard is “reasonable cause” to believe that outpatient treatment would be safe and effective.
Doyle: Selective Silence. People v. Bowman (12/23/2011, D057467) 202 CA4th 353: Selective silence may be viewed as an adoptive admission after Miranda waivers and in the context of a voluntary police interview.
MDO: Sufficiency Of Evidence. Harrison v. Board of Parole Hearings (12/23/2011, E051465) 202 CA4th 340: A finding of Mentally Disordered Offender (MDO) status was reversed due to lack of sufficient evidence to support the elements required by PC 2962.
Multiplicity: PC 290. People v. Davis (12/27/2011, H036719) 202 CA4th 429: The characterization of PC 290, failure to register as a sex offender, as a continuing offense does not mean that a defendant could not be convicted of new and separate violations if he continues to ignore the law.
U.S. Supreme Court
(December 1-31, 2011)
Confrontation: Unavailability Of Witness. Hardy v. Cross (12/12/2011, No. 11-74) ___ US ___ [181 LEd2d 468; 132 SCt 490]: Under deferential AEDPA (28 USC 2254(d)) standard, the prosecution is required to make a good faith effort to find the witness but need not exhaust every avenue of inquiring. California law requires “persevering efforts in untiring earnest.” (See, e.g., People v. Mendieta (1986) 185 CA3d 1032; People v. Cromer (2001) 24 CA4th 889.)
9th Circuit Court of Appeals
(December 1-31, 2011)
Batson/Wheeler. Johnson v. Finn (12/8/2011, 9th Cir. No. 10-15641) 665 F3d 1063: District court denies due process when it fails to conduct its own evidentiary hearing before rejecting the magistrate judge’s credibility determination following a Batson-Wheeler evidentiary hearing.
Confrontation: Nontestifying Expert. Merolillo v. Yates (12/12/2011, 9th Cir. No. 08-56952) 663 F3d 444: Trial court’s erroneous admission of non-testifying expert’s testimony violated defendant’s right of confrontation and constituted prejudicial error.
Coercion Of Deadlocked Jury. Parker v. Small (12/27/2011, 9th Cir. No. 10-17128) 665 F3d 1143: While pointing out that the jury instruction to a deadlocked jury would not necessarily be approved if the federal court were sitting in the position of the state court, AEDPA requires deferential review, the benefit of the doubt, and that the state decision was not an unreasonable application of clearly established federal law. When deciding how to respond to a jury reporting an impasse, the instruction or methods employed by the trial court may not coerce the jury to reach a verdict. Here the jurors were advised to continue deliberating after their first two indications of deadlock. On the third reported deadlock, there was a juror holding out for acquittal based on credibility concerns about the prosecution witnesses. The court gave the instruction which was upheld in People v. Moore (2002) 96 CA4th 1105, 1121, and a verdict of guilt was reached. The California Court of Appeal found that the instruction was not coercive because the supplemental instruction did not address the holdout juror’s concerns or recast the evidence in a light more favorable to the prosecution. AEDPA deference requires reversal only if there is an unreasonable application of Lowenfield v. Phelps (1988) 484 US 231, 237.