CALIFORNIA CASE LAW UPDATE – Selected California Cases
California Supreme Court (February 1-February 29, 2008)
People v. Brasure (2/7/2008, S072949) 42 C4th 1037: The trial court erred in instructing pursuant to CALJIC 2.11.5 (unjoined perpetrators) in an unmodified form when some of appellant’s accomplices, or possible accomplices, testified at trial. In this death penalty case resulting in kidnap and torture-murder convictions, several accomplices testified for the prosecution, but others did not. Because some did testify at the trial, it was error for the trial court to give CALJIC 2.11.5 without modifying it. (See People v. Jones (2003) 30 C4th 1084, 1113.)
Grants Of Review:
People v. McNeal REV GTD (1/3/2008, S157565) 155 CA4th 582, mod. 155 CA4th 1612: (1) Should evidence of the range and variability
People v. Cogswell REV GTD (2/13/2008, S158898) 156 CA4th 698: Must a prosecutor request that an out-of-state sexual assault victim, who does not wish to return to California and testify, be taken into custody under the Uniform Act to Secure Attendance of Witnesses from without the State in Criminal Cases (PC 1334 et seq.) in order to demonstrate the due diligence required to satisfy the finding of unavailability under EC 240 that would permit the victim’s preliminary hearing testimony to be admitted into evidence at trial?
People v. Stevens REV GTD (2/13/2008, S158852) 156 CA4th 537: Did the trial court abuse its discretion in requiring a uniformed, armed deputy sheriff to sit immediately beside the defendant during his testimony?
People v. Gunter REV GTD (2/13/2008, S158890) 156 CA4th 913: Briefing deferred pending decision in People v. Gomez REV GTD (3/22/2006, S140612) unpublished below, G034752: Can a defendant be convicted of robbery for using force or fear in the victim’s immediate presence while carrying away stolen property, or does such a conviction require that the defendant use force or fear in the victim’s immediate presence while taking the property or preventing the victim from regaining it?
People v. Daniels REV GTD (2/20/2008, S159866) 2007 Cal. App. Unpub. LEXIS 9903: Briefing deferred pending decision in People v. Towne REV GTD (2/7/2007, S125677) 2007 Cal. LEXIS 1437, and People v. Nguyen REV GTD (10/10/2007, S154847)152 CA4th 1205, which present issues concerning the use as aggravating sentencing of such factors as being on probation or parole when a crime was committed and prior unsatisfactory performance on probation or parole, and whether a prior juvenile adjudication of a criminal offense in California can constitutionally subject a defendant to the provisions of the three strikes law (PC 667(b)-(i), 1170.12) although there is no right to a jury trial in juvenile wardship proceedings in this state.
People v. Tilley REV GTD (2/20/2008, S159328) 2007 Cal. App. Unpub. LEXIS 10172: Briefing deferred pending decision in People v. French RV GTD (2/07/2007, S148845) 2006 Cal. App. Unpub. LEXIS 9689, which includes the question whether the trial court violated defendant’s Sixth Amendment right to a jury trial, as interpreted in Cunningham v. California (2007) 549 US ____ [166 LEd2d 856; 127 SCt 856], by imposing an upper term sentence based on aggravating factors not found true by the jury, where the defendant entered a no contest plea and was sentenced in accordance with his plea agreement.
People v. Robinson REV GTD (2/22/2008, S158528) 156 CA4th 508: (1) Does the issuance of a “John Doe” complaint and arrest warrant timely commence a criminal action and thereby satisfy the statute of limitations? (2) Does an unknown suspect’s DNA profile satisfy the “particularity” requirement for an arrest warrant? (3) What remedy is there, if any, for the unlawful collection of genetic material under the DNA and Forensic Identification Data Base and Data Bank Act of 1998 (PC 295 et seq.)?
People v. Trujillo REV GTD (2/27/2008, S160196) 2007 Cal. App. Unpub. LEXIS 6573/2007 Cal. App. Unpub. LEXIS 10093: Briefing deferred pending decision in People v. Towne REV GTD (2/7/2007, S125677) 2007 Cal. LEXIS 1437, which presents issues concerning the use as aggravating sentencing of such factors as being on probation or parole when a crime was committed and prior unsatisfactory performance on probation or parole.
California Courts of Appeal (February 1-February 29, 2008)
People v. Mejia (2/5/2008, F051804) 159 CA4th 1081: The defendant instructed his counsel to move for a new trial based on counsel’s perceived incompetent performance at trial, and counsel so informed the court. Therefore, the court was on notice that defendant was requesting a hearing pursuant to People v. Marsden (70) 2 C3d 118 and had a duty to elicit from defendant reasons he believed he was inadequately represented at trial. (See People v. Stewart (85) 171 CA3d 388, 393). The court’s reliance on comments only from counsel was prejudicial error requiring reversal. (People v. Marsden, supra, 2 C3d at p. 126.)
People v. Veale (2/15/2008, E042561) 160 CA4th 40: For purposes of determining whether the defendant used force or duress in committing a violation of PC 288(b) offense, the jury could reasonably infer that the defendant, the victim’s stepfather, whom she testified molested her on multiple occasions, made an implied threat, based on evidence that the victim feared the defendant and was afraid that if she told anyone about the molestation, that he would harm or kill her, her mother or someone else, and could find duress based on that inference in combination with such additional factors as the victim’s age when she was molested; the disparity between victim’s and defendant’s age and size; and defendant’s position of authority in the family. Given the prosecution’s theory that the defendant violated section 288, subdivision (b) by using fear and/or duress to molest victim, the court the court did not err by instructing the jury with CALCRIM 1111, that proof of a threatening act or statement was required to convict based on a finding of duress, but not on a finding of fear. The Court of Appeal distinguished People v. Hecker (90) 219 CA3d 1238, People v. Cockran (2002) 103 CA4th 8, and People v. Espinoza (2002) 95 CA4th 1287 even though they were factually similar to Veale.
People v. Mayberry (2/15/2008, C053116) 160 CA4th 165: The standard weighted workout glove containing sand in the palm area is not “commonly known” as a “sandclub…or sandbag” and is not a “dangerous weapon” for which possession within the meaning of PC 12020(a)(1). Even though an item not originally dangerous can be altered into one with modifications (see People v. Grubb (65) 63 C2d 614, 621), it was not in this case, and the sandclub did not match the statutory definition. (People v. King (2006) 38 C4th 617, 627.)
People v. Reyes (2/20/2008, C053778) 160 CA4th 246: There is no material difference between CALJIC 2.50.02 and CALCRIM 852. Appellant contended that the trial court violated his right to due process by instructing the jury with CALCRIM 852, claiming that the instruction allowed the jury to find him guilty of the charged offenses solely upon finding true by a preponderance of the evidence uncharged offenses. The appellate court rejected the argument, finding that there was no material difference between the language found constitutional in CALJIC 2.50.02 and in CALCRIM 852. In fact, CALCRIM 852 goes further than CALJIC 2.50.02 with a clarification that worked to appellant’s benefit. Accordingly, there was no due process violation.
People v. Taylor (2/20/2008, B194403) 160 CA4th 304: The Anders/Wende review procedures do not apply to post-conviction commitments under the Mentally Disordered Offender Act (MDOA).
People v. Stone (2/21/2008, A116034) 160 CA4th 323: CALCRIM 103 and 220 concerning presumption of innocence and the prosecution’s burden of proof are validated by the great weight of legal authority. Appellant argued that the phrase in the instruction directing the jury to impartially compare and consider all the evidence rendered the instruction constitutionally infirm because it connotes a civil, preponderance standard of proof. The court dismissed the claim as an exercise in semantics. Appellant’s second claim that the “abiding conviction” language in the instruction’s definition of proof beyond a reasonable doubt conflates the concepts of duration and weight was dismissed as being contrary to a long line of authority.
Lopez v. Superior Court (2/29/2008, G039025) 2008 Cal. App. LEXIS 301: A gang enhancement per PC 186.22 was not properly charged where the underlying contempt charge was based on the same gang-related conduct.