CALIFORNIA CASE LAW UPDATE – Selected California Cases
California Supreme Court (December 1-31, 2012)
New Evidence Standard (PC 1473(b). In re Richards (12/3/2012, S189275) 55 CA4th 948: Habeas petitioner’s new expert opinion evidence, including evidence that the prosecution’s expert testified inaccurately at trial, failed to meet the false evidence and new evidence standards of PC 1473(b).
Gang Offense Not Applicable When Defendant Acts Alone. People v. Rodriguez (12/27/2012, S187680) 55 CA4th 1125: A gang member who commits a felony while acting alone does not violate PC 186.22(a); that statute requires at least two perpetrators whose felonious conduct benefits the gang. The plain meaning of the statute requires that the crime be committed by at least two gang members, one of whom may be the defendant if he is a gang member. This interpretation avoids “any potential due process concerns that might be raised by punishing mere gang membership” by requiring that a defendant commit the underlying felony with at least one other gang member. (Citing Scales v. United States (1961) 367 US 203.) Section 186.22(a) reflects the Legislature’s intent to punish participants who commit felonious conduct together with gang members.
Note: Rodriguez was a plurality opinion and thus “the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds.” (Marks v. United States (1977) 430 US 188, 193.)
California Supreme Court (December 1-31, 2012)
Grants of Review:
People v. Edwards (S073316): The court requested the parties in this automatic appeal to submit simultaneous letter briefs discussing the effect, if any, of Williams v. Illinois (6/18/2012, No. 10-8505) ____ US ____ [183 LEd2d 89; 132 SCt 2221], and People v. Dungo (2012) 55 CA4th 608, on the issues in this case.
California Courts of Appeal (December 1-31, 2012)
Attempted Murder: “Kill Zone” Instruction Erroneously Given. People v. McCloud (12/5/2012, B228209) 211 CA4th 788: A defendant can be guilty of the attempted murder of victims who were not his “primary target” based on a “kill zone” theory. A shooter may be convicted of multiple counts of attempted murder under this theory where the evidence establishes that he used lethal force and specifically intended to kill everyone around the targeted victim. Here, there was no evidence that appellants intended to kill 46 people with 10 bullets and no evidence that this was even possible or that appellants believed it was possible. The fact that the party was extremely crowded does not constitute evidence that appellants intended to kill more than one person per bullet fired.
Petition For Recall To Apply Proposition 36. People v. Conley (12/10/2012, C070272) 211 CA4th 953: Defendant whose appeal was pending when Proposition 36 (Three Strikes Amendment) was enacted is not entitled to new sentencing hearing and must instead file a petition for recall in the trial court. Defendant was convicted of various offenses related to a drunk driving incident.
196-Year Sentence For 15 Year Old Is Cruel And Unusual. People v. Thomas et al. (12/11/2012, D057485) 211 CA4th 987: Appellant, who was 15 years old at time of homicide offenses and sentenced to 196 years to life, is entitled to resentencing in light of Miller v. Alabama (6/25/2012, Nos. 10–9646, 10–9647) ____ US ____ [183 LEd2d 407; 132 SCt 2455].
Voluntariness Of Defendant’s Confession. People v. Thomas et al. (12/11/2012, D057485) 211 CA4th 987: After independently reviewing the record and considering the various factors outlined in People v. Dykes (2009) 46 CA4th 731, 752, the court concluded that appellants had not established that their confessions were involuntary under the totality of the circumstances.
Judge Properly Set Aside Plea Agreement Due To Defendant’s False Statements. People v. Peterson (12/11/2012, C068893) 211 CA4th 1072: The trial court did not err by setting aside plea agreement that required defendant to be truthful about her involvement in a murder when evidence showed that she made material false statements that created the inference that she was not an active participant in the crime.
Statute Of Limitations: Conspiracy To Defraud (PC 182(a)(4). People v. Milstein (12/12/2012, B233589) 211 CA4th 1158: The three-year statute of limitations in PC 801 applies to conspiracy to defraud by false pretenses or false promises (PC 182(a)(4)).
Assault With Firearm Instruction (CC 875) Improperly Permitted Multiple Convictions. People v. Velasquez (12/12/2012, F062517) 211 CA4th 1170: Assault with firearm instruction (CALCRIM 875) erroneously permitted jury to convict defendant of multiple counts against various victims who were inside the residence, based on his shooting in the direction of a single person who was located in the garage.
Prosecutor Misconduct. People v. Jasso (12/13/2012, H037099) 211 CA4th 1354: Prosecutor committed misconduct by arguing that high-ranking California courts have affirmed convictions on facts similar to the case being tried.
Confrontation: Remote Testimony By Child Witness. People v. Lujan (12/17/2012, B231123) 211 CA4th 1499: A child witness who is not a victim, but who will be traumatized by a face-to-face confrontation, may testify remotely without violating a defendant’s confrontation rights.
CC 875: Erroneous Definition Of Deadly Weapon. People v. Brown (10/17/2012, B2338770) 210 CA4th 1: CC 875 improperly allows the jury to convict a defendant of assault with a deadly weapon even if it rejects the idea the instrument was inherently deadly or employed in a manner capable of causing death or great bodily injury. CALCRIM 875 permitted the jury to find the BB gun was a deadly weapon on three theories: (1) it was inherently deadly; (2) it was inherently dangerous; or (3) it was used in a manner capable of causing and likely to cause great bodily injury. Only the first and third bases for criminal culpability come within the meaning of PC 245(a)(1), which prohibits assaults “with a deadly weapon or instrument.”
Proof Of Corpus Delicti. People v. Hyunh (12/20/2012, D060327) 212 CA4th 285: In a murder prosecution, the prosecutor is required to establish the corpus delicti, i.e., proof of death of the victim and proof of a criminal agency as cause of the death, by slight or prima facie proof.
LIO: Murder – Second Degree And Felony Murder. People v. Hyunh (12/20/2012, D060327) 212 CA4th 285: Second degree murder is not a lesser included offense of first degree felony-murder.
Confrontation: Whether Statement Is Testimonial. People v. Holmes (12/24/2012, B222971) 212 CA4th 431: In California, for the purposes of the Sixth Amendment, a statement is not testimonial unless it is made both with some degree of formality or solemnity and its primary purpose pertains in some fashion to the criminal prosecution.
Use Of Suppression Hearing Testimony For Impeachment. People v. Spence (12/27/2012, D059463) 212 CA4th 478: A defendant’s testimony given at a motion to suppress evidence may be used at trial to impeach his expert witness.
SVP: Prosecutor Misconduct. People v. Shazier (12/27/2012, H035423) 212 CA4th 520: Prosecutor’s pervasive pattern of misconduct during sexually violent predator (SVP) trial required reversal of order adjudging appellant an SVP.
9th Circuit Court of Appeals
(December 1-31, 2012)
Confrontation: Arbitrary Restriction Of Cross-Examination (Michigan v. Lucas (1991) 500 US 145). Ortiz v. Yates (12/6/2012, 9th Cir. No. 11-563830) ____F3d ____ [2012 WL 6052251]: The trial court’s restriction on defendant’s cross-examination of the alleged victim was an objectively unreasonable application of Michigan v. Lucas (1991) 500 US 145, which held that restrictions on a criminal defendant’s right to confront witnesses may not be arbitrary or disproportionate to the purposes they are designed to serve.