CALIFORNIA CASELAW UPDATE – Selected California Cases
California Supreme Court (February 1-28, 2009)
In re Gomez (2/2/2009, S155425) 45 C4th 650: Cunningham Retroactivity: Cunningham v. California (2007) 549 US 270 applies retroactively to any case in which the judgment was not final at the time of the Blakely v. Washington (2004) 542 US 296 decision.
People v. Michael Anthony Jackson (2/5/2009, S110206) 45 C4th 662: Counsel – Marsden Motion: Fact that defendant did not trust his attorney, disagreed with counsel’s choice of expert witnesses and with the defense counsel planned to present did not establish a conflict requiring removal.
People v. Michael Anthony Jackson (2/5/2009, S110206) 45 C4th 662: Counsel – Self-representation: Once a defendant chooses to proceed with counsel, self-representation demand is addressed to sound discretion of court. Here, defendant made request “too late” and it would have disrupted the presentation of the case. No abuse of discretion. (See People v. Windham (77) 19 C3d 121, 128.)
People v. Michael Anthony Jackson (2/5/2009, S110206) 45 C4th 662: Misconduct – Prosecutorial – Emotional Appeal During Penalty Phase: Although a prosecutor’s appeal to the passions of the jurors during the guilt phase is misconduct, emotion need not be entirely excluded from jury’s moral assessment during penalty phase. Therefore, asking jurors during argument to think how they would feel if someone they loved died “in a gutter” was not misconduct. Prosecutor may present argument in colorful terms. (People v. Zambrano (2007) 41 C4th 1082, 1179.) Although court does “not encourage prosecutors to use such graphic and dramatic images, the prosecutor’s comments in the present case were brief.”
People v. Scott (2/19/2009, S136498) 45 C4th 743: Robbery – All Employees in Constructive Possession: Agreeing with People v. Jones (2000) 82 CA4th 485 and disapproving People v. Frazer (2003) 106 CA4th 1105, court holds that all employees on duty during robbery have constructive possession of employer’s property and thus may be separate victims, assuming other elements of robbery are met.
People v. Soper (2/19/2009, S152667) 45 C4th 759: Severance – Four-Factor Test: Even properly joinable offenses must be severed, however, on a showing of prejudice. There’s a four-factor test: (1) would the evidence be cross-admissible?; (2) are some of the charges inflammatory?; (3) is a weak case being bolstered by being joined with a strong case or another weak case?; and (4) is one charge a capital charge?
People v. Gutierrez (2/19/2009, S073253) 45 C4th 789: Juror – Dismissal after Contact with Witness: Trial court did not abuse discretion in dismissing prospective juror following contact with victim’s sister, who was a witness for the prosecution and a co-worker of the juror. First, defendant forfeited issue by failing to object. (People v. Holt (97) 15 C4th 619, 658.) Second, court may excuse juror for actual bias. (CCP 225(b)(1)(C); PC 1046.) Here, business relationship and content of communication would “prevent the juror from acting with entire impartiality.” (CCP 225(b)(1)(C).)
People v. Gutierrez (2/19/2009, S073253) 45 C4th 789: Child Witness Instruction – Not Applicable If Statement Was Admitted Through An Adult Witness: CALJIC 2.20.1, dealing with evaluation of testimony by child witnesses, need not be given in a case where a child’s hearsay statement was admitted through an adult witness. Evaluating a child witness’s testimony is applicable under section 1127f, if the child testifies.
People v. Gutierrez (2/19/2009, S073253) 45 C4th 789: Spontaneous Statements: Erroneous admission of hearsay statements claimed to be spontaneous statements does not necessarily implicate the Confrontation Clause of the U.S. Constitution.
People v. Bunyard (2/23/2009, S023421) 45 C4th 836: Due Diligence and an Absent Witness: Failure of the police to keep track of a key witness is not due diligence. (People v. Louis (1986) 42 C3d 969.) Here the California Supreme Court held that the police did act diligently to try to find the witness even though they did not do much.
People v. Ramirez (2/26/2009, S156775) 45 C4th 980: Negligent Discharge Is a Lesser of Shooting at an Inhabited Dwelling: Gross negligent discharge of a firearm is a lesser included offense of willful discharge of a firearm at a building or vehicle. Resolving a split among Courts of Appeal, the Supreme Court held that a violation of PC 246.3(a) (willful discharge of a firearm in a grossly negligent manner which could result in injury or death) is a lesser-included offense of PC 246 (maliciously and willfully discharging a firearm at an occupied building or vehicle). The only difference between the two is that PC 246 proscribes discharging a firearm at specific targets that have an inherently high risk of injury or death; while PC 246.3 prohibits discharging a firearm in any grossly negligent manner that presents a significant risk of injury or death, which is always encompassed in PC 246. The Court rejected the Attorney General’s interpretation that PC 246.3(a) required “the actual presence of a person in harm’s way,” which PC 246 does not; PC 246.3(a) was enacted to deter the practice of firing guns into the air for festive events, which is reckless and dangerous whether or not someone happens to be in harm’s way on that occasion. Both statutes proscribe the same acts with the same mens rea; the only differences are that the likelihood of injury and the targets of fire are stricter for PC 246. Therefore, all of the elements of PC 246.3(a) are necessarily included in the more stringent requirements of PC 246, and the former is an LIO of the latter.
Grants Of Review:
Review was dismissed 2/11/2009 and the cases remanded in People v. Randall REV GTD (1/3/2008, S157645) 155 CA4th 228 and People v. Superior Court (Smith) REV GTD (1/3/2008, S158084) 2007 Cal. App. Unpub. LEXIS 8053.
California Courts of Appeal (February 1-28, 2009)
People v. Beyah (2/3/2009, B201886) 170 Cal. App. 4th 1241: Jury Instructions – Consciousness of Guilt (CC 362; CJ 2.03): Court erred in instructing jury on consciousness of guilt (CALCRIM 362) based solely on defendant’s trial testimony. “Finally, although we have rejected defendant’s challenges in this case, we do not endorse the use of CALCRIM 362 when the basis for an inference of guilt is false or misleading statements in a defendant’s trial testimony, rather than false or misleading statements made prior to trial. We further invite the CALCRIM Committee to clarify its intended use of the instruction.”
In re J.P. (2/5/2009, A118858) 170 CA4th 1292: Juveniles – Sex Offender Registration Not Required For Non-Forcible Oral Copulation: Trial court violated equal protection by ordering that minor adjudged ward for non-forcible oral copulation with person under 18, PC 288a(b)(1) register as sex offender under PC 290, because there is no such requirement for similarly situated offenders convicted or adjudicated of violating PC 261.5(a) (unlawful sexual intercourse with person under 18). See People v. Hofsheier (2006) 37 C4th 1185.
People v. Mejia (2/5/2009, F051804) 159 CA4th 1081: Marsden – Judge Must Allow Defendant To Speak: Trial court’s failure to hold Marsden hearing at the sentencing hearing required reversal of judgment and remand. Request through his counsel for a new trial motion based on ineffective assistance was enough to put trial judge on notice that the defendant was making a Marsden motion. Judge erred in eliciting comment from counsel but not the defendant.
People v. Hamlin (2/9/2009, C053982) 170 CA4th 1412 [Modified at 2009 Cal. App. LEXIS 300 3/9/2009): No-contact Order – Lifetime Order Erroneously Imposed: Trial court had no authority to impose a lifetime no-contact order, as it was effective beyond the pendency of the criminal prosecution. (See People v. Stone (2004) 123 CA4th 153, 160.)
People v. Zanoletti (2/10/2009, B199682) 170 CA4th 1516: (1) Under the single-intent-and-plan doctrine, where all the takings are part of a single plan, the defendant can be convicted of a felony by aggregating multiple misdemeanor thefts. (People v. Bailey (61) 55 C2d 514.) This doctrine applies to insurance fraud. (2) Unlike multiple theft-related crimes, the defendant was convicted of violations of PC 550(a)(4) and 550(a)(1). The defendant argued that these are alternative sections and can permit only one conviction for each act. The C/A says that the conduct here can be divided up so as to permit multiple convictions.
In re Ross (2/10/2009, C057249) 170 CA4th 1490: Denial Of Parole – Explanation Required: In conviction for second degree murder and sentence of indeterminate term of 15 years to life in state prison, petition for writ of habeas corpus is granted under In re Lawrence (2008) 44 C4th 1181 which requires more of an explanation than did In re Rosenkrantz (2002) 29 C4th 616, which was the controlling law when the Governor made the parole decision.
People v. Romero-Arellano (2/11/2009, A119908) 171 CA4th 58: Use of the term “the People” in jury instructions did not violate due process. During appellants’ trial for controlled substance offenses, they requested that all CALCRIM instructions be modified to change the word “People” to “prosecution” or “government.” The trial court refused, and appellants were convicted. On appeal, they argued that this was error in that it violated due process. The appellate court rejected the argument, finding that the Supreme Court has declared it is proper to use “the People” in jury instructions.
STRATEGY NOTE: The appellate court noted that there was no argument in this case that the prosecutor placed any special emphasis on “the People.” Thus, their ruling “is not to be interpreted as a license for a zealous prosecutor to somehow use our opinion as justifying anything other than the use of appropriate conduct to see that justice is done.” this language may provide a basis for limiting the voir diring at length about how they represent “the People,” and arguing that in opening and closing.
People v. Murillo (2/18/2009, H032409) 171 CA4th 210: Probation – Condition to Take Any Medicine Prescribed Overbroad – IAC: To withstand a challenge that a probation condition is vague and overbroad, the condition must be sufficiently precise for the probationer to know what is required of him and for the court to determine whether the condition has been violated. Additionally, the condition must not prohibit constitutionally protected conduct. The court reached the otherwise forfeited issue, finding that trial counsel rendered ineffective assistance in failing to object to the condition.
People v. Richardson (2/24/2009, C055688) 171 CA4th 479: Marsden: A defendant is entitled to have the court consider discharge of appointed counsel and appointment of substitute counsel where he has clearly indicated a desire for new counsel; a request for a new trial on the basis of ineffective assistance of trial counsel, alone, does not impose a duty on the court to conduct a Marsden hearing.
People v. Hayes (2/25/2009, C057345) 171 CA4th 549: Instructions And Argument Must Not Restrict Jurors’ Reliance On “Common Sense: When Interpreting The Instructions: The court erred when it instructed the jury, in a case where the defendant was charged with possessing sharp instrument while confined in penal institution (PC 4502(a)), that a “sharp instrument” was an item that could be “used to inflict injury and that is not necessary for the inmate to have in his possession” because the instruction allowed the jury to find the defendant guilty without finding that the item in the defendant’s possession was “sharp” the “commonsense” meaning of the term. (People v. Nguyen (2000) 22 C4th 872, 878.) The error was prejudicial given the fact that the central role of the prosecutor’s closing argument was based on the erroneous instruction. (See People v. Sakarias (2000) 22 C4th 596, 625.) The trial court had taken a portion from People v. Custodio (99) 73 CA4th 807, which discussed a vague and overbroad challenge to a violation of section 4205, subdivision (a). This Court of Appeal warns that trial courts should not merely take isolated extracts from the opinions of the court. (See People v. Cavitt (2004) 33 C4th 187, 202.)
U.S. Supreme Court (February 1-28, 2009)
United States v. Hayes (2/24/2009, No. 07-608) ____ US ____ [172 LEd2d 816; 129 SCt 1079]: Weapons – Federal – Misdemeanant in Possession: The federal Gun Control Act prohibiting possession of a firearm by one convicted of a misdemeanor of domestic violence requires proof beyond a reasonable doubt that the predicate offense involved a domestic relationship, but does not require that the domestic relationship be an element of the offense.
9th Circuit (February 1-28, 2009)
United States v. Norwood (2/18/2009, No. 08-30050) 2009 U.S. App. LEXIS 3031: Curative Instructions – Griffin Error: Any Griffin error (Griffin v. California (65) 380 US 609) committed by the prosecutor during closing argument was harmless because the Fifth Amendment violation was a single comment by the prosecutor and was followed immediately by a curative instruction.
United States v. Renteria (2/20/2009, 9th Cir. No. 07-50471) 2009 U.S. App. LEXIS 4006: Arson – As Federal Crime: Defendant could be convicted of maliciously damaging a synagogue, in violation of 18 USC 844(i), because gift shop and daycare center had nexus to interstate commerce.
United States v. Kincaid-Chauncey (2/20/2009, 9th Cir. No. 06-10544) 2009 U.S. App. LEXIS 3591: Fraud – Honest Services Wire Fraud – Quid Pro Quo By Public Official: Honest services fraud occurs when an employee deprives his employer of its right to have its affairs conducted “free from deceit, fraud, dishonesty, conflict of interest, and self-enrichment,” and consistent with the employee’s fiduciary duties to the employer. (United States v. Woodward (1st Cir. 1998) 149 F3d 46, 54.) In cases involving public officials, the theory relies on the idea that “a public official acts as ‘trustee for the citizens and the State… and thus owes the normal fiduciary duties of a trustee, e.g., honesty and loyalty’ to them.” (United States v. Silvano (1st Cir. 1987) 812 F2d 754, 759 [quoting United States v. Mandel (4th Cir. 1979) 591 F2d 1347, 1363].) Court agrees with defendant that when government theory is that public official accepted money in exchange for influence, an implicit quid pro quo is required. But it need not be explicit, and jury instructions here were sufficient.
United States v. Kincaid-Chauncey (2/20/2009, 9th Cir. No. 06-10544) 2009 U.S. App. LEXIS 3591: Witnesses – Impeachment By Contradiction: Impeachment by contradiction permits courts to admit extrinsic evidence that specific testimony is false because it contradicted by other evidence. (United States v. Castillo (9th Cir. 1999) 181 F3d 1129, 1132.) It is an exception to the collateral fact rule (Fed. Rules of Evid. 608(b)). The fact to be contradicted must be material, and must have arisen during the direct examination of the witness to be contradicted. District court properly limited the testimony to two witnesses: “Allowing the defendant to call the mayor, members of the city council, judges, and other public officials to testify about extraneous events would have created a huge sideshow to what was already a trial of notoriety. None of the proffered testimony was central to the core issues of the trial, and thus it is precisely the type of evidence that the collateral fact rule is designed to exclude.”
Briceno v. Scribner (2/23/2009, 9th Cir. No. 07-55665) 2009 U.S. App. LEXIS 3524: Proving the Gang Enhancements: To support the gang enhancements (PC 186.22(b)(1)), the DA presented the testimony of a police gang “expert” who claimed that crimes are done to enhance the reputation of gang members and are thus done for the gang. The 9th Circuit held that this kind of evidence completely fails to establish that the specific intent of this specific defendant was to benefit the gang. Judgment was vacated for insufficiency of the evidence on the gang enhancements.