CALIFORNIA CASE LAW UPDATE – Selected California Cases
U.S. Supreme Court
Whorton v. Bockting (2/28/2007, No. 05-595) ____ US ____ [167 LEd2d 1; 127 SCt 1173]: Crawford v. Washington (2004) 541 US 36 [158 LEd2d 177; 124 SCt 1354] announced a new procedural rule that is not a watershed rule implicating the fundamental fairness of the criminal proceeding, and, therefore, it does not apply to cases final on direct review.
California Supreme Court (February 1, 2007-February 28, 2007)
People v. Smith (2/5/2007, S035348) 40 C4th 483: Juror’s act of noticing defendant’s conduct during sanity phase and discussing it with other jurors as proof of sanity not misconduct. There is no authority for proposition that it is misconduct for a jury to discuss a defendant’s demeanor during sanity trial. (See
People v. Heishman (1988) 45 C3d 147 [not misconduct for prosecutor to refer to defendant’s facial expression during presentation of mitigating character evidence].) Further, the defense expert had been asked to analyze the defendant’s behavior during trial.
People v. Smith (2/5/2007, S035348) 40 C4th 483: Defendant’s conviction for receiving stolen property reversed as defendant had also been convicted of taking the same gun during robbery.
People v. Smith (2/5/2007, S035348) 40 C4th 483: Defense expert, testifying during the confession suppression hearing, said that he had refreshed his recollection by reviewing test results. Under EC 771, the opposing party has the right to discovery of material used to refresh the recollection of a witness.
People v. Chacon (2/8/2007, S125236) 40 C4th 558: Court of appeal may review the merits of an in limine ruling on appeal from a judgment of dismissal resulting from the ruling. Defense of entrapment by estoppel is not available to public officials seeking to defend conflict of interest accusations by claiming reliance on the advice of public attorneys charged with counseling them and advocating on their behalf. The defense of entrapment by estoppel is grounded in the principles of federal due process and is recognized by the federal courts, but has not been adopted in this state. (See Cox v. Louisiana (1965) 379 US 559 [13 LEd2d 487; 85 SCt 476] [law enforcement gave permission for the defendant’s to demonstrate in a given area, which they did, and then they were arrested]; see also Raley v. Ohio (1959) 360 US 423 [3 LEd2d 1344; 79 SCt 1257]; United States v. Pennsylvania Chem. Corp (1973) 411 US 655 [36 LEd2d 567; 93 SCt 1804] .)
People v. Bell (2/15/2007, S038499) 40 C4th 582: No judicial misconduct in saying that defense counsel was “going to dream something up;” telling counsel that she was not “making friends with the court reporter” by asking the reporter to re-read a question; and telling the jury that “the attorney managed to find a half dozen things to fight about” and that was why the recess took longer than expected). No error in allowing evidence of lack of remorse introduced during guilt phase. No error in restricting expert’s testimony regarding statements made by defendant to him under EC 352. Error to strike expert’s reply to prosecutor’s proverbial “one question too many” which resulted in an answer the prosecutor did not like. Trial court did not abuse discretion in investigation of holdout juror’s later claims of intimidation.
People v. Navarro (2/26/2007, S132666) 40 C4th 668: Although an appellate court that finds insufficient evidence of a greater offense may modify the judgment to reflect a conviction for one lesser offense under PC 1181(6) and PC 1260, it may not substitute convictions for two lesser includeds even when shown by the evidence to have been committed. In this case, the singular does not include the plural (though as a matter of statutory interpretation, it often does). (PC 7.)
Grants Of Review:
Review has been granted in the following unpublished cases: People v. French REV GTD (2/7/2007, S148845), People v. Hernandez REV GTD (2/7/2007, S148974), People v. Pardo REV GTD (2/7/2007, S148914, People v. Mvuemba REV GTD (2/7/2007, and People v. Sandoval REV GTD (2/7/2007, S148917) to consider whether: (1) the trial court violated the defendant’s Sixth Amendment right to a jury trial, as interpreted in Cunningham v. California (1/ 22/2007, No. 05-6551) 549 U.S. __ [166 LEd2d 856; 127 SCt. 856], by imposing an upper term sentence based on aggravating factors not found true by the jury and (2) if so, what is the proper remedy?
People v. Mentch REV GTD (2/7/2007, S148204) 143 CA4th 1461: (1) Should the trial court have instructed the jury, as requested, on the “primary caregiver” affirmative defense under the Compassionate Use Act (HS 11362(e))? (2) If so, what is the standard of review for such instructional error? (3) Is the defendant’s burden to raise a reasonable doubt regarding the compassionate use defense a burden of producing evidence under EC 110 or a burden of proof under EC 115? (4) Should the trial court instruct the jury on the defendant’s burden to raise a reasonable doubt and, if so, how?
People v. Jones REV GTD (2/7/2007, S148463) 2007 Cal. LEXIS 220: Is a violation of PC 246 (shooting at an inhabited dwelling) that is committed for the benefit of a criminal street gang (PC 186.22(b)(4)(B)) a “felony punishable by . . . imprisonment in the state prison for life” (PC 12022.53 (a)(17)), such that the sentence for the violation may be enhanced under subdivision (c) of section Penal Code 12022.53 for the defendant’s personal and intentional discharge of a firearm? (See People v. Jefferson (99) 21 C4th 86, 101; People v. Briceno (2004) 34 C4th 451, 460, fn. 7.)
Supplemental briefing has been ordered in People v. Towne REV GTD (2/7/2007, S125677) 2007 Cal. LEXIS 1437 to address the following issues: (1) Do Cunningham v. California (1/ 22/2007, No. 05-6551) 549 U.S. __ [166 LEd2d 856; 127 SCt. 856] and Almendarez-Torres v. United States (98) 523 U.S. 224, 239-247, permit the trial judge to sentence defendant to the upper term based on any or all of the following aggravating factors, without submitting them to a jury: the defendant’s prior convictions as an adult are numerous and of increasing seriousness; the defendant has served a prior prison term; the defendant was on parole when the crime was committed; the defendant’s prior performance on probation or parole was unsatisfactory (CR Court, Rule 4.421 (b)(2) – (b)(5))? (2) Is there any violation of the defendant’s Sixth Amendment rights under Cunningham v. California if the defendant is eligible for the upper term based upon a single aggravating factor that has been established by means that satisfy the governing Sixth Amendment authorities – by, for example, a jury finding, the defendant’s criminal history, or the defendant’s admission – even if the trial judge relies on other aggravating factors (not established by such means) in exercising his or her discretion to select among the three sentences for which the defendant is eligible?
People v. Brookfield REV GTD (2/7/2007, S147980) 2007 Cal. LEXIS 985: Is a violation of PC 246 (shooting at an inhabited dwelling) that is committed for the benefit of a criminal street gang (PC 186.22(b)(4)(B)) a “felony punishable by . . . imprisonment in the state prison for life” (PC 12022.53(a)(17)), such that the sentence for the violation may be enhanced under subdivisions (b) and (e) of section 12022.53 for a principal’s personal use of a firearm? (See People v. Jefferson (99) 21 C4th 86, 101; People v. Briceno (2004) 34 C$th 451, 460, fn. 7.)
People v. Darling REV GTD (2/14/2007, S148460), unpublished below D047251: Briefing deferred pending decision in People v. Licas REV GTD (3/21/2006, S140032) 134 CA4th which presents the following issue: Is assault with a firearm (PC 245(a)(2)) a lesser included offense of shooting from a vehicle (PC 12034(c))?
On remand from the United States Supreme Court, briefing has been ordered in People v. Black (2/21/2007, S126182) 35 Cal.4th 1238 to determine the effect of Cunningham v. California (1/ 22/2007, No. 05-6551) 549 U.S. __ [166 LEd2d 856; 127 SCt. 856] on the following issues: (1) Is there any violation of the defendant’s Sixth Amendment rights under Cunningham if the defendant is eligible for the upper term based upon a single aggravating factor that has been established by means that satisfy the governing Sixth Amendment authorities—in the present case, for example, by the defendant’s prior convictions or by the jury’s finding that the offense involved force or fear—even if the trial judge relies on other aggravating factors (not established by such means) in exercising his or her discretion to select among the three sentences for which the defendant is eligible? (2) Does Cunningham affect this court’s conclusion in People v. Black (2005) 35 C4th 1238, 1261-1264, that Blakely v. Washington (2004) 542 US 296 does not apply to the imposition of consecutive sentences under Penal Code section 669?
People v. Allen REV GTD (2/28/2007, S148949) 144 CA4th 1132: Does a defendant represented by counsel have the right to testify over counsel’s objection in a proceeding to commit the defendant as a sexually violent predator?
California Courts of Appeal (February 1, 2007-February 28, 2007)
People v. Zackery (2/1/2007, C051431) 147 CA4th 380: After the granting of a petition for rehearing, the Third Appellate District held that where the clerk’s minutes of a change of plea, minutes of the sentencing, and the abstract of judgment differed from the court’s oral pronouncement and included items never orally imposed in defendant’s presence, the minutes must be stricken to reflect what actually occurred and the judgment that the judge actually pronounced. Where the clerk erroneously indicated in the minutes of the change of plea that the defendant changed his plea from not guilty to no contest, the sentence on that count was unauthorized and must be vacated. (People v. Hartsell (1973) 34 CA3d 8, 13-14; see also People v. Mitchell (2001) 26 C4th 181, 185-186 [oral pronouncement of judgment prevails over clerk’s minutes and abstract of judgment]; People v. Mesa (1975) 14 C3d 466, 471 [same].) The failure to impose a restitution fine was reversible error where the reasons for not doing so were not stated on record. (See PC 1202.4(b).)
People v. Freeman (2/5/2007, D046394) 147 CA4th 517: Judge was improperly reinstated to preside over defendant’s trial after disqualifying himself based on his friendship with a judicial colleague whom defendant was rumored to be stalking. Even though defendant could not obtain appellate review under the statutory scheme because she did not challenge the reinstatement by petition for mandate (per CCP 170.1 and CCP 170.6), she was entitled to review for constitutional due process error under People v. Brown (1993) 6 Cal.4th 322. Here, “fundamental due process error occurred when the judge, previously recused for bias, was reinstated into the case notwithstanding the repeated protests of the defendant and under circumstances reflecting a persistent appearance of bias.” Court notes that there is no statutory provision authorizing a disqualified judge to be reinstated.
In re Walker (2/5/2007, B190637) 147 CA4th 533 [modified at 2007 Cal. App. LEXIS 300]: Relief under PC 1473.5 is appropriate in cases where the defense counsel’s belief that accident and BWS defenses were mutually inconsistent was reasonable under state of law at the time, but later cases made it clear that defendant did not have to testify she intentionally shot the victim for expert evidence regarding battering and its psychological effects to be admissible in support of an imperfect self defense theory of voluntary manslaughter. It was reasonably probable that the jury would have accepted this theory if supporting evidence had been presented.
People v. Perdomo (2/7/2007, B186098) 147 CA4th 605: Defendant’s incriminating statements made to police officers while he was in intensive care unit of hospital recovering from surgery and on pain medications did not violate his right to fair trial due to involuntariness. The prosecution must prove by a preponderance that the statement was voluntary. (People v. Thompson (1990) 50 C3d 134, 160.) There must be coercive police conduct as a predicate to establish an involuntary confession. (People v. Bradford (1997) 14 C4th 1005, 1041.)
People v. Goodwillie (2/9/2007, D046757) 147 CA4th 695: Judge erred in relieving advisory counsel (even though a defendant has no constitutional right to advisory counsel, distinguishing People v. Bigelow (1984) 37 C3d 731 [abuse of discretion to refuse to appoint]) who had been appointed by the arraigning judge. Although a court does have authority to correct its own prejudgment errors, it does not have the right to reconsider the decision of another judge. (In re Alberto (2002) 102 CA4th 421, 426.) Exceptions are: 1) on reversal and remand for new trial; 2) when first judge is unavailable; 3) when first order was made through mistake, inadvertence or fraud; or 4) when statutory provision grants judge authority. (E.g., People v. Konow (2004) 32 C4th 995, 1020 [one judge’s review of another’s action permitted by PC 871.5].)
People v. Pedroza (2/13/2007, B189682, B194249) 147 CA4th 784: Videotaped demonstration of arson investigator lighting a paper towel and throwing it to the ground was properly admitted to rebut defense expert’s claim that the paper does not continue to burn when tossed. (People v. Rodriguez (1994) 8 C4th 1060, 1114 [test for admissibility].) The test or demonstration must be relevant and must have been conducted under at least substantially similar, although not necessarily absolutely identical conditions as the actual occurrence. (See People v. Turner (1994) 8 C4th 137, 198.)
People v. Scott (2/14/2007, E039093) 147 CA4th 831 [modified at 2007 Cal. App. LEXIS 358]: Lawrence v. Texas (2003) 239 US 558 [156 LEd.2d 508; 123 SCt 2472], which stated that a state statute making it a crime for two persons of the same sex to engage in certain intimate sexual conduct violates Due Process Clause because adults are free to engage in private sexual conduct in the exercise of their liberty guaranteed by the Fifth and Fourteenth amendments, does not apply to PC 285 (incest), as the statute serves a legitimate state interest.
People v. Bellacosa (2/15/2007, C049291) 147 CA4th 868: Where defendant drove while intoxicated and evaded police from California by crossing state line into Nevada, his physical acts committed in California were not the same acts he committed in Nevada, and his convictions in Nevada for his conduct in Nevada did not preclude his prosecution in California (per PC 656, 793 or VC 41400) for his conduct in California even though some of the elements of the offenses overlapped.
People v. Garcia (2/16/2007, H029019) 147 Cal. App. 4th 913: Once the initial sentence was imposed and execution suspended, court’s order striking registration requirement per PC 290 it could not be changed. (People v. Howard (1997) 16 C4th 1081.) In addition, one superior court judge cannot overrule another. (In re Alberto (2002) 102 CA4th 421, 427.)
People v. Price (2/20/2007, A111081) 147 CA4th 955: Judge should have granted the motion to dismiss the PC 1026.5(b) petition to extend defendant’s commitment as untimely. The district attorney failed to meet both the deadline to file no later than 90 days before expiration of the original commitment and the deadline to try defendant no later than 30 days prior to scheduled release, and could not provide good cause for the delay other than “clerical error.”
People v. Santos (2/20/2007, B187213) 147 CA4th 965: Decision to allow jury to leave through nonpublic exit without notice to defendant or counsel was not a critical stage of proceedings, and any error was nonprejudicial. No substantive due process violation because there is no historical right to question jurors regarding their verdict, and no indication of jury misconduct in the record.
People v. Brown (2/22/2007, A111490) 147 CA4th 1213: When judge imposed punishment more severe than specified in bargain by ordering full victim restitution when bargain specified restitution for out-of-pocket expenses, defendant had to be permitted to withdraw her plea, but she was not entitled to demand specific performance of the bargain. Defendant was not required to obtain certificate of probable cause to raise the violation. As question of first impression, court holds that victim restitution is “punishment” within meaning of PC 1192.5. Distinguishes People v. Campbell (1994) 21 CA4th 825 because there restitution was a condition of probation and the plea bargain was silent on the issue.
People v. Zapisek (2/22/2007, A113074) 147 CA4th 1151: Sufficient evidence existed to justify extension of commitment under PC 1026.5(b) where psychologist testified that defendant’s delusions caused him to present a substantial danger to others.
People v. Robles (2/26/2007, B189525) 147 CA4th 1286: A defendant has a personal and fundamental right to admit a probation violation even if counsel disagrees with the decision. It is the same as the decision to plead guilty. Only in a capital context does the plea require the consent of counsel. (PC 1018.)
People v. Dulan (2/27/2007, H028838) 147 CA4th 1428:Mandatory sex registration for persons over 21 who engage in oral copulation with persons under 16 violates equal protection in view of absence of such a requirement for those commit unlawful sexual intercourse with minors in otherwise identical circumstances. (See People v. Hofsheier (2006) 37 C4th 1185, 1206 [adults engaging in oral copulation with persons between 16 and 18].)
Alcala v. Superior Court (People) (2/27/2007, G036911) 147 CA4th 1492: Under PC 790(b), all murders committed in California may be tried within a single county in which one of the murders occurred providing there is a multiple-murder special circumstance charged and all the murders are connected together in their commission as defined in PC 954. PC 790 and 954.1 could be applied retroactively to crimes committed before their passage because they address only the manner in which a trial is conducted, and therefore do not violate ex post facto prohibition. When court failed to individualize its analysis as to two of the five murders, though it correctly denied severance of the three others.
People v. Zadi (2/27/2007, A114292) 147 CA4th 1470:Defendant pleaded guilty to PC 647(a) (misdemeanor lewd conduct in public place), placed on probation and ordered to register under PC 290. When he discovered the lifetime sex registration requirement, he sought to withdraw his plea. Under Bunnell v. Superior Court (1975) 13 C3d 592, a trial court must advise a defendant of direct consequences of a guilty plea which includes sex registration (In re Birch (1973) 10 C3d 314, 321), and failure to advise is error. (People v. McClellan (1993) 6 C4th 367, 376.) The court must advise that the registration requirement is for the duration of the defendant’s life.
People v. Mays (2/28/2007, D046696) 148 CA4th 13: Evidence of money laundering (PC 186.10 (a)) sufficient to show that at least $5,000 laundered through financial institutions was related to criminal activity. Monetary instrument must be composed of at least $5,000 of criminal proceeds; it is not enough to show the transaction was for more than $5,000 and from an account with commingled funds. The statute is not unconstitutionally vague if interpreted to require that the $5,000 be laundered with the specific intent to promote criminal activity or be the proceeds of criminal activity.
Ninth Circuit Court of Appeal (February 1, 2007-February 28, 2007)
United States v. Daane et al. (9th Cir. 2/1/2007, No. 05-50282) 475 F3d 1114: Investors’ attempts to recover funds taken in Ponzi scheme at gunpoint did not support a “claim of right” defense.
Edwards v. LaMarque (9th Cir. 2/1/2007, No. 04-55752): Despite trial counsel’s admission that the direct examination of his client that led to the waiver of the marital privilege regarding other conversations defendant had with his wife was a “mistake,” the decision was a tactical one and did not constitute ineffective assistance of counsel. Note that five judges dissent, saying that counsel “never understood the California law of marital privilege.”
United States v. Milwitt (9th Cir. 2/5/2007, No. 05-10344) 475 F3d 1150: Bankruptcy fraud requires specific intent to defraud an identifiable victim or class of victims.
United States v. Blanton (9th Cir. 2/12/2007, No. 05-50302) 476 F3d 767: Double Jeopardy bars government from appealing a district court’s allegedly erroneous denial of an Armed Career Criminal Act sentencing enhancement. Double jeopardy will attach if applicability of sentencing enhancement that would have increased the defendant’s maximum sentence is not proven and the defendant is acquitted. There is a good discussion of United States v. Tighe (9th Cir. 2001) 266 F3d 1187 and its applicability following Blakely v. Washington (2004) 542 US 296 [159 LEd2d 403; 124 SCt 2531. A nonjury juvenile adjudication could not be a predicate offense for the purpose of a federal sentencing enhancement because the underlying conduct was never proven to a jury. Questions the viability of Monge v. California (1998) 524 US 721 [141 LEd2d 615; 118 SCt 2246] [that double jeopardy does not apply to enhancements]. The test is to look behind the labels to the constitutional commands governing the treatment of sentencing enhancements that increase the statutory maximum to which the defendant is otherwise exposed. To do otherwise would undermine the 5th and 6th Amendments.
United States v. Hernandez (9th Cir. 2/14/2007, No. 05-50920) 476 F3d 791: Judge prejudicially erred in refusing to instruct on lesser included offense of simple possession when defendant charged with possession with intent to distribute.
United States v. Hernandez (9th Cir. 2/14/2007, No. 05-50920) 476 F3d 791: Trial court violated Fifth Amendment by allowing testimony on defendant’s silence during custodial interrogation.
United States v. Mendez (9th Cir. 2/23/2007, No. 05-10205) 2007 U.S. App. LEXIS 3922: Even though a reviewing court may affirm a trial court on any ground fairly presented by the record, even though not relied upon by the trial court, this authority “does not excuse the parties from their obligation to brief the issues they wish the court to consider.” (See e.g., Scholar v. Pac. Bell (9th Cir. 1992) 963 F2d 264, 266.) “If the court reaches an issue not briefed by the concerned party, the opposing party is deprived of the opportunity to respond and the court is deprived of the benefit of briefing.”
United States v. Castillo-Basa (9th Cir. 2/26/2007, No. 05-50768) 478 F3d 1025: The Double Jeopardy clause not only bars retrial for the same offense; it also prevents the government from prosecuting a defendant on an issue determined in his favor at the prior trial.