CALIFORNIA CASE LAW UPDATE – Selected California Cases
California Supreme Court (February 1-28, 2011)
Miranda; Consciousness Of Guilt; CJ 2.28. People v. Thomas (2/3/2011, S093456) 51 C4th 449: (1) For Miranda purposes, Miranda warnings are required before questioning where a citizen is led to believe, as a reasonable person, that he is deprived of his freedom in any significant way. (2) Consciousness of guilt evidence was thus properly admitted, regardless of defense counsel’s concession that defendant had intercourse with the victim. (See also People v. Burney (2009) 47 C4th 203, 245 [prosecution is allowed to bolster its case, by presenting evidence of the defendant’s consciousness of guilt].) (3) CALJIC 2.28 improperly suggests that defendant is responsible for untimely disclosure of discovery and is deficient in instructing how the failure to timely provide discovery should affect the jury’s deliberations. On the second day of trial, defense counsel provided a witness list which included the name of Brent Turvey, M.S. Near the end of the prosecution’s case-in-chief, the prosecutor announced that he had received no reports from Turvey and asked that his testimony be excluded for failure to provide discovery. The court declined the request but instructed the jury with the 1996 version of CALJIC 2.28. The Supreme Court found the instruction to be flawed because it suggested that defendant bore responsibility for his attorney’s failure to provide discovery, and failed to instruct the jury how the untimely disclosure should impact the jury’s deliberations.
Competency: Burden Of Proof. People v. Ary (2/3/2011, S173309) 51 C4th 510: In a post-conviction retrospective competency hearing, placing the burden on the defendant to prove his incompetence by a preponderance of the evidence does not violate due process.
Evidence: Relevance Of Nickname. People v. Lee (2/24/11, S080550) 51 C4th 620: Evidence of defendant’s nickname, “Point Blank,” was relevant and extremely probative with regard to the intent with which defendant shot victim and whether her killing was premeditated and deliberate where there was also evidence that defendant shot victim multiple times to live up to the nickname. (See People v. Brown (2003) 31 C4th 518, 550 551.)
Security Measures: Bailiff Next To Defendant At Witness Stand. People v. Hernandez (2/28/2011, S175615) 51 C4th 733: The decision to station a uniformed deputy at the witness stand must be based on individualized facts showing the defendant poses a safety or flight risk, or would otherwise disrupt the proceedings, and not based on a standard practice or policy. (People v. Stevens (2009) 47 C4th 625.)
Grants of Review
People v. Elmore REV GTD (2/2/2011, S188238) 2010 Cal. App. Unpub. LEXIS 8504: Does the doctrine of imperfect self-defense apply when the defendant’s actual, but unreasonable, belief in the need to defend himself was based solely on a psychotic delusion?
People v. Sanchez REV GTD (2/2/2011, S188453) 189 CA4th 374, mod. 189 CA4th 1307a: (1) When a defendant indicates the intention to move to withdraw a plea of guilty or no contest on the ground of ineffective assistance of appointed counsel, is the trial court obligated to conduct a Marsden hearing (People v. Marsden (1970) 2 C3d 118) and determine whether counsel should be removed and replaced by new appointed counsel? (2) Was defendant required to obtain a certificate of probable cause (PC 1237.5) in order to raise this issue on appeal?
People v. Johnson REV GTD (2/16/2011, S188619) 2010 Cal. App. Unpub. LEXIS 8453: Court limited review to the following issue: Should trial courts apply a higher standard of mental competence for self-representation than for competency to stand trial? (See Indiana v. Edwards (2008) 554 US 164.)
People v. Thompson REV GTD (2/16/2011, S188661) 2010 Cal. App. Unpub. LEXIS 8978: 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.
In re Richards REV GTD (2/23/2011, S189275) 2010 Cal. App. Unpub. LEXIS 9284: (1) When a petitioner seeks relief on habeas corpus because an expert witness who testified at trial later fundamentally alters the opinion he or she rendered, should this be viewed as a claim that false evidence substantially material or probative on the issue of guilt was presented at trial or as a claim that newly discovered evidence casts “fundamental doubt on the accuracy and reliability of the proceedings” and “undermine[s] the entire prosecution case and point[s] unerringly to innocence or reduced culpability”? (In re Hardy (2007) 41 C4th 977, 1016.) (2) Is petitioner entitled to relief on either ground in this case? (3) Is petitioner entitled to habeas corpus relief based on newly discovered DNA evidence?
People v. Duarte REV GTD (2/23/2011, S189174) 190 CA4th 82: Briefing deferred pending decision in People v. Mesa REV GTD (10/27/2010, S185688) 186 CA4th 773, which presents the following issue: Does PC 654 bar the imposition of separate sentences for the offense of active participation in a criminal street gang in violation of PC 186.22(a), and for the crimes used to prove one element of that offense – that the defendant has promoted, furthered, and assisted felonious criminal conduct by members of the gang?
The order granting the request in the following case to decide a question of California law presented in a matter pending in the United States Court of Appeals for the Ninth Circuit was vacated in light of People v. Albillar (2010) 51 C4th 47:
Emery v. Clark REQ GTD (6/23/2010, S182670) [(9th Cir. No. 08-55249) 604 F3d 1102].
California Courts of Appeal (February 1-28, 2011)
Evaluating Testimony Of Dependent Person (PC 1127g) Not Applicable To Witness With Depression Or PTSD. People v. Keeper (2/3/2011, D055965) 192 CA4th 511: CALCRIM 331 is intended to assist the jury in evaluating the testimony of a witness who is a dependent person, as contemplated by PC 1127g, not a person who suffers from depression or post-traumatic stress syndrome. During an argument over visitation rights, appellant shot and gravely injured his former wife’s husband. Appellant presented evidence that he had suffered from depression for several years and had been diagnosed with post-traumatic stress syndrome. Defense counsel requested that the court give CALCRIM 331, which instructs as to the testimony of a witness with a developmental disability. The reviewing court upheld the denial holding that the instruction only applies to witnesses who are “dependent persons.”
Adverse Consequences Of Appeal. People v. Bolton (1/20/11, pub’d 2/4/2011, D055655) 192 CA4th 541: Due process and double jeopardy considerations do not prohibit imposition of sentence for an offense the jury initially could not agree on that is retried following a successful appeal of the offenses for which convictions were rendered. (Compare People v. Hanson (2000) 23 C4th 355.)
Mandatory No-Contact Orders With Underage Sex Victims. People v. Ochoa (2/7/2011, C065356) 192 CA4th 562: PC 1202.05(a), prohibiting visitation with a child victim of enumerated crimes, applies only to those victims of enumerated crimes for which defendant is sentenced to state prison.
Attempt: Impossibility Not A Defense. People v. Pham (2/7/2011, C063758) 192 CA4th 552: An attempt to commit a crime is a crime even if it would have been impossible to complete its commission.
Carjacking: Concurrence Of Act And Intent. People v. Gomez (2/8/2011, E049008) 192 CA4th 609: To sustain a carjacking conviction there must be sufficient evidence that the requisite intent to take the vehicle existed at the time of the use of force or fear, and that the vehicle was taken from the victim’s immediate presence, although he need not actually be in the vehicle at the time of the taking.
Booking Questions About Gang Affiliation, In The Absence Of Miranda. People v. Gomez (2/8/2011, E049008) 192 CA4th 609: Depending on the circumstances, questions to a suspect during the booking process about his gang affiliation may fall within the booking-question exception to the Fifth Amendment.
Pitchess: Not Limited To Officers Employed At The Time Of The Crime. People v. Moreno (2/8/2011, E049093) 192 CA4th 692: EC 1043 and Pitchess do not limit the discovery procedure to an individual employed as a peace officer at the time of the crime.
Juror Ability To Understand English (CCP 203): Appointment Of Interpreter For Jurors During Voir Dire. People v. Moreno (2/8/2011, E049093) 192 CA4th 692: CCP 203 provides that prospective jurors possess a sufficient knowledge of the English language. During voir dire, the court appointed an interpreter to assist one of the jurors. Appellant argued that he was denied his right to a jury of 12 competent jurors. The court rejected the claim. CCP 203 provides that a prospective trial juror must be fully able to understand spoken and written English. Appellant forfeited the claim by failing to raise it in the trial court. And even if not forfeited, he failed to explain how the appointment of the interpreter prejudiced him. The record failed to reveal the court’s reason for appointing the interpreter and a minute order indicated that on one occasion during voir dire the juror responded in English.
Priors: Admission Of PC 969b Packet Does Not Violate 6th Amendment Confrontation: People v. Moreno (2/8/2011, E049093) 192 CA4th 692: Admission of a PC 969b packet establishing prior convictions and prison terms does not violate the Sixth Amendment right to confrontation.
Experts: Diminished Actuality. People v. Cortes (1/11/2011, pub’d 2/10/11, H032799) 192 CA4th 873: PC 25, 28, and 29 do not preclude expert testimony that allows the jury to infer that a defendant actually did not premeditate, deliberate, or act with malice. All the statutes prohibit is expert testimony on the ultimate issue of whether or not the defendant actually acted with the requisite mental state.
Hit And Run Enhancement: Intent To Avoid Observation Or Arrest Is Not An Element. People v. Xinos (2/8/2011, H034305) 192 CA4th 637: The enhancement under VC 20001(c) (hit and run), does not require proof that defendant acted to avoid observation or arrest.
Protective Orders. Babalola v. Superior Court (2/14/2011, B226170) 192 CA4th 948: Except in cases involving domestic violence, a protective order under PC 136.2 cannot be based solely on the nature of the charges and requires a showing of good cause belief that a witness has been harmed or intimidated, or that either is reasonably likely to occur.
Juror Unanimity Not Required As To Multiple Shots Fired To Commit Attempted Murder. People v. Bui (2/15/2011, A123907) 192 CA4th 1002: A unanimity instruction is not required to determine which of several gun shots is the basis for an attempted murder conviction when the shots are closely connected in time. Appellant fired three shots at a homeowner during the course of a home-invasion robbery committed to steal money from a safe known to be inside. When appellant pointed the gun at the victim, the victim tried to push the hand holding the gun, and the gun discharged. The victim was hit and fell to the floor. Appellant then fired two more shots in rapid succession. Based on these acts, a jury convicted him of attempted murder, mayhem, first-degree robbery, and first-degree burglary, and corresponding firearm enhancements as to each count (PC 12022.53). Appellant argued a unanimity instruction should have been given or an election by the prosecutor should have been required in light of the prosecutor’s argument that attempted murder was proper whether or not the first shot was fired accidentally. The court rejected the argument in light of the continuous course of conduct exception. The victim, who was shot twice, testified all three shots were fired within seconds, and the jury must have either believed or disbelieved his testimony in total. (See also People v. Jenkins (1994) 29 CA4th 287, 299; see also People v. Crandell (1988) 46 C3d 833, 875.)
PC 654 Bars Consecutive Enhancements For Single Offense. People v. Bui (2/15/2011, A123907) 192 CA4th 1002: PC 654 may still apply to the substantive crimes even when both offenses carry a section PC 12022.53 enhancement.
PC 415 Not A Specific Intent Offense. In re Cesar V. (2/15/2011, H035504) 192 CA4th 989: PC 415(1), making a challenge to fight in a public place, is not a specific intent offense.
Gang Allegation (PC 186.22(d)): Intent To Assist Specific Crimes. In re Cesar V. (2/15/2011, H035504) 192 CA4th 989: A gang allegation under PC 186.22(d) does not require proof of intent to assist specific crimes. (People v. Albillar (2010) 51 C4th 47.)
EC 1108 Subject To EC 352: People v. Dejourney (2/17/2011, D055585) 192 CA4th 1091: EC 1108 prior similar sexual misconduct may be introduced to show a defendant’s propensity to commit offenses of the same type, subject to a weighing of the evidence under EC 352.
Kidnapping: Consent – Developmentally Disabled Person. People v. Dejourney (2/17/2011, D055585) 192 CA4th 1091: (1) An expert may testify why a developmentally disabled person, when confronted with danger, would not seek assistance. (2) In evaluating the issue of consent in the offense of kidnap, the jury may consider the developmentally disabled victim’s demeanor as she testifies.
Distribution Of Seized Assets: Victim vs. Child Support. People v. Mozes & Brown (2/17/2011, B221020) 192 CA4th 1124: Under PC 186.11, a white-collar crime victim has priority to seized assets over that of a claimant seeking child support.
Drunk Driving: Presumptive Validity Of BAC Tests – Margin-Of-Error. Borger v. Department of Motor Vehicles (2/17/2011, B222315) 192 CA4th 1118: Presumptive validity of the BAC test results could be rebutted by testimony that all “Intoxilyzer 5000” results have an inherent margin-of-error and might give a high BAC reading.
Evidence Of Prior Domestic Violence In Murder Prosecution. People v. Brown (2/22/2011, F058350) 192 CA4th 1222: Prior domestic violence offenses were admissible (per EC 1109) as evidence that he had the propensity to murder the victim, murder being the “ultimate form of domestic violence.” Further, the legislative history and language of section 1109 supported introduction of the propensity evidence. The prior acts were also relevant to establish an element of murder. A defendant’s pattern of prior acts of domestic violence leads to the inference of malice aforethought and culpability for murder.
MDO: Prosecution’s Right To Jury Trial. People v. Superior Court (Salter) (2/24/2011, B227337) 192 CA4th 1352: Once an MDO extension petition has been filed based on the recommendation of the medical director, the prosecution has a right to a jury trial to resolve any conflicts about the medical condition of the prisoner.
Discovery: Preliminary Hearing. Magallan v. Superior Court (2/24/2011, H034892) 192 CA4th 1444: PC 1054 et. seq. does not deprive a magistrate of the authority to order pre-preliminary hearing discovery in relation to a defendant’s motion to suppress to be litigated at the preliminary hearing.
Drunk Driving (VC 23153(b) and (c)): Passenger Becomes Driver By Grabbing Steering Wheel. In re F.H. (2/25/2011, A127491) 192 CA4th 1465: A passenger who grabs the steering wheel and thereby takes sufficient control of the vehicle to cause a crash is “driving” the car within the meaning of the Vehicle Code. VC 305 defines a “driver” as one “who drives or is in actual physical control of a vehicle.” CALCRIM 2241 explains “[a] person drives a vehicle when he or she intentionally causes it to move by exercising actual physical control over it. The person must cause the vehicle to move, but the movement may be slight.” The court also relied on out of state authority which was consistent with these definitions and which rejected the notion that a person must have control of every ancillary device to be a driver.
Ex-Misdemeanants Possession Of Firearm: No Violation Of Second Amendment. People v. Delacy (2/25/2011, A125803) 192 CA4th 1481: PC 12021(c)(1), prohibiting persons convicted of specified misdemeanors from possessing a firearm, does not violate the Second Amendment or equal protection.
No Confrontation Problem If Testifying Expert Made Independent Findings. People v. Smith (2/28/2011, A124895) 193 CA4th 1: An expert’s testimony which is based on analysis conducted by a different analyst does not violate the confrontation clause if the testifying expert has made independent findings.
Attempted Murder: Intent To Kill Element Satisfies Malice Requirement. People v. Ramos (2/28/2011, B221016) 193 CA4th 43: CALCRIM 600 adequately states the mens rea for attempted murder and an explanation regarding express malice is not needed. The defense argued on appeal that CALCRIM 600 inadequately defines the target crime of murder because, unlike CALJIC 8.66, there is no mention of malice aforethought. The reviewing court held the instruction is not deficient because “Intent to unlawfully kill and express malice are, in essence, ‘one and the same.'”
Sobriety Checkpoints. People v. Alvarado (2/7/2011, No. 6951, Appellate Division, Superior Court, San Francisco) 2011 Cal. App. LEXIS 381: DA failed to satisfy four of the requirements for a DUA checkpoint per Ingersoll v. Palmer (1987) 43 C3d 1321.
U.S. Supreme Court
(February 1-28, 2011)
Crawford: Dying Declaration During Ongoing Emergency. Michigan v. Bryant (2/28/2011, No. 09-150) ____ US ____ [_____LEd2d ____; 131 SCt 1143; 2011 U.S. LEXIS 1713]: Within the meaning of Crawford v. Washington (2004) 541 US 36, and Davis v. Washington (2006) 547 US 813, 823 826, a mortally wounded victim’s identification and description of the attacker and location of the shooting were not testimonial statements because they served primary purposes of enabling the police assistance to meet an ongoing emergency. (But see fn 13 [admission of statement violates due process unless it qualifies under state hearsay rules and is reliable].)
9th Circuit Court of Appeals
(February 1-28, 2011)
Strike Prior Not On Serious List: Apprendi Violated When Judge Finds Additional Facts. Wilson v. Knowles (2/8/2011, 9th Cir. No. 07-17318) 631 F3d 1295: California courts have been permitted to examine the “face of the record” to determine whether a prior conviction not obviously included on the serious felony list (PC 1192.7(c)) nevertheless qualifies as a strike prior. However, Apprendi v. New Jersey (2000) 530 US 466 held that, except for the fact of a prior conviction, facts that increase a defendant’s sentence beyond the statutory maximum must be proved to a jury beyond a reasonable doubt. The trial court’s finding that the 1993 incident constituted “strikes” because of personal infliction of great bodily injury did not fall within the prior conviction exception to defendant’s right to a jury trial. The error was not harmless because no court could look at disputed facts of a seventeen-year-old incident and conclude beyond a reasonable doubt that Wilson would have been convicted of personally inflicting great bodily injury.
Police Informant: Denial Of Defendant’s Right To Counsel. Fairbank v. Ayers (2/15/2011, 9th Cir. No. 08-99018) 632 F3d 612: To establish a violation of the Sixth Amendment right to counsel, it must be proved that the informant was acting on the government’s behalf and that incriminating statements were deliberately elicited.