CALIFORNIA CASE LAW UPDATE – Selected California Cases
California Supreme Court (February 1-28, 2013)
There were no relevant California Supreme Court cases in February.
California Supreme Court (February 1-28, 2013)
Grants of Review:
People v. Biane REV GTD (2/13/2013, S207250) 2012 WL 5360983: Can a defendant be charged with both offering a bribe to another person and aiding and abetting the receipt of the bribe by that person?
People v. Chandler REV GTD (2/13/2013, S207542) 211 CA4th 114: Did the trial court err by failing to instruct the jury that the crime of attempting to make criminal threat — like the completed crime of making a criminal threat (PC422) — requires that it be reasonable under the circumstances for the victim to have been in sustained fear?
People v. Gonzalez REV GTD (2/27/2013, S207830) 211 CA4th 405: Was defendant properly convicted of both oral copulation of an unconscious person and oral copulation of an intoxicated person? (See People v. Craig (1941) 17 CA2d 453.)
California Courts of Appeal (February 1-28, 2013)
SVP: Summary Denial As Violation Of Equal Protection. People v. McCloud (1/17/2013, A132798) 213 CA4th 1076: Provision of Sexually Violent Predator Act (SVPA) that accords trial court discretion to summarily deny petition for release may violate the equal protection clause.
Multiplicity: False Financial Statements. People v. Whitmer (1/28/2013, No. B231038) 213 CA4th 122 Defendant’s convictions for making false financial statements reversed as to 14 counts.
SVP. People v. Poulsom (1/31/2013, D060779) 213 CA4th 501: Appellant’s behavior on parole was sufficient to support jury’s sexually violent predator (SVP) finding despite earlier contrary finding.
Gun Use Enhancement: Aider And Abettor Is Principal. People v. Lisea (1/31/2013, C067767) 213 CA4th 408: The term “principal” in PC 12022.53(e)(1) includes aiders and abettors under the natural and probable consequences doctrine.
Robbery: Abandonment Of Property Prior To Use Of Force – Defense Pinpoint. People v. Hodges (1/31/2013, A131542) 213 CA4th 531: Trial court erroneously refused to give requested defense pinpoint instruction that Hodges could not be found guilty of robbery if he abandoned the victim’s property prior to using force.
Restitution Time Value Of Money. People v. Pangan (2/4/2013, G046491) 213 CA4th 574: It is an abuse of discretion not to account for the time value of money in determining a victim’s economic loss based on a diminished or lost stream of future payments, and the failure on defense counsel’s part to raise the issue of the time value of money is ineffective assistance of counsel.
Involuntary Confession: Police Promises Of Reduced Sentence. People v. Westmoreland (2/5/2013, A127394) 213 CA4th 602: Defendant’s murder conviction reversed where his involuntary confession was obtained by police promises that he would not receive a life sentence for an unpremeditated murder during a “robbery gone wrong.”
Great Bodily Injury: Comatose Victim. People v. Delgado (2/5/2013, C064571) 213 CA4th 660: Although appellant inflicted head injury on victim, the evidence was insufficient to prove the great bodily injury enhancement for a victim who becomes comatose.
SVP: Conditional Release. People v. Superior Court (Karsai) (2/7/2013, C070719) 213 CA4th 774: The court may order a person previously committed as an SVP into a conditional release program without a fixed residence at the time of release.
Double Jeopardy: Dismissal Prior To Swearing Of Jury. People v. Whitaker (2/13/2013, C064531) 213 CA4th 999: Defendants did not suffer double jeopardy or due process violations where charges were refiled after initial dismissal prior to jury being sworn.
DNA Results: Confrontation. People v. Steppe (2/14/2013, E053348) 213 CA4th 1116: Technical reviewer’s testimony, which was based on results of DNA test performed by another analyst, did not violate the confrontation clause.
Coram Nobis: Improper Venue For Raising IAC Claim. People v. Mbaabu (2/14/2013, E055810) 213 CA4th 1139: A motion to vacate judgment in the nature of a petition for writ of error corum nobis may not be used to present an ineffective assistance of counsel claim based on trial counsel failure to advise defendant of the immigration consequences of a plea.
SVP: Unlawful 45-Day Hold. Orey v. Superior Court (Orange County) (2/19/2013, G046111) 213 CA4th 1241: Although 45-day hold placed on defendant to evaluate him for a sexually violent predator (SVP) petition was unlawful, trial court was not required to dismiss the petition because the hold resulted from good faith mistake of law.
Juvenile Proceedings: Defense Experts Bound By Attorney-Client Privilege. Elijah W. v. Superior Court of Los Angeles (2/25/2013, B241011) 213 CA4th 1343: In a juvenile delinquency proceeding, experts appointed to assist the defense are bound by the attorney-client privilege and are not subject to the holding in Tarasoff v. Regents of California (1976) 17 CA3d 425.
Venue: Location Of Phone Calls Arranging Drug Deal. People v. Chavarria (2/26/2013, B238632) 213 CA4th 1364: Venue was proper in county where phone calls arranging a drug deal originated even though the crime was completed in another county and the defendant did not participate in the phone calls.
Removal Of Juror During Deliberations. People v. Harrison (2/26/2013, A132658) 213 CA4th 1373: During trial deliberations, the trial court can remove a juror where it is established that he is unable to follow the law (PC 1089).
Electronic Recording In Foreign Language: English Translation Controls. People v. Arancibia (2/27/2013, B240341) 213 CA4th 1465: If a recording in a foreign language is used in a trial, the English translation, not the recording, controls and is the evidence of what was said. A recording in English normally constitutes the evidence of what was said and a transcript is offered only as an aid to understanding the recording. However, when the tape is in a foreign language, a transcript with the English translation controls. Any other rule presents a danger that jurors speaking the language might base a verdict on their translations–the equivalent of allowing jurors to consider evidence not presented at trial. Because the error undermines this fundamental tenet of the justice system, a showing of prejudice is not required.
False Personation: Act By Defendant Required. People v. Guion (2/27/2013, A132604) 213 CA4th 1426: Felony false personation requires proof of an act committed by the defendant, separate from the false identification, that might have caused the impersonated individual liability or provided a benefit to the defendant.
Finding Of No Probable Cause At Pretrial: Not Equivalent To Finding Of Innocence. People v. Esmaili (2/27/2013, A134700) 213 CA4th 1449: A finding of no probable cause at the preliminary hearing does not equate with a finding of factual innocence under PC 851.8. At the preliminary hearing, the prosecution bears the burden to show there is probable cause to believe the defendant committed the charged offense. This does not equate with factual innocence under PC 851.8. Under PC 851.8, a defendant bears the burden of showing that the state should never have subjected him to compulsion of criminal law because no objective factors justified official action. The record must exonerate, not merely raise a substantial question of guilt. Here, appellant did not meet his burden.
Photographs Are Not Hearsay. People v. Ellis (2/28/2013, A133343) ___ CA4th ___, 2013 WL 754043: Photographs are not hearsay evidence subject to the confrontation clause.
9th Circuit Court of Appeals
(February 1-28, 2013)
Double Jeopardy: Enhancements. Smith v. Hedgpeth (2/5/2013, 9th Cir. No. 11-16858) 706 F3d 1099: There is no clearly established federal law which requires that sentencing enhancements be considered for purposes of applying the double jeopardy clause of the Fifth Amendment.
IAC: Failure To Present Evidence That Victim Recanted. Cannedy v. Adams (2/7/2013, 9th Cir. No. 09-56902) 706 F3d 1148: Defense counsel who failed to present alleged victim’s message recanting her claims of molestation provided ineffective assistance of counsel. The evidence was admissible as a prior inconsistent statement, and it provided critical corroboration of Cannedy’s claim that the stepdaughter had fabricated the entire incident.
United States Supreme Court
(February 1-28, 2013)
Dog Sniff: Reliability. Florida v. Harris (2/19/2013, No. 11-817) ____ US ____ [____ LEd2d ____; 133 SCt 1050]: “[E]vidence of a dog’s satisfactory performance in a certification or training program” may show reliability and establish probable cause.
IAC: Padilla v. Kentucky Announced New Rule. Chaidez v. United States (2/20/2013, No. 11-820) ____ US ____ [____LEd2d ____; 133 SCt 1103]: The decision in Padilla v. Kentucky (2010) 559 US ____  announced a “new rule of law” regarding application of Strickland to an attorney’s advice regarding the immigration consequences of a plea, and is therefore not retroactive.
Double Jeopardy: Judge’s Erroneous Midtrial Directed Acquittal. Evans v. Michigan (2/20/2013, No. 11-1327) ____ US ____ [____ LEd2d ____; 133 SCt 1069]: Where trial court grants an erroneous midtrial directed verdict of acquittal based on a misconstruction of a criminal statute, double jeopardy bars retrial.