CALIFORNIA CASE LAW UPDATE – Selected California Cases
California Supreme Court (February 1-29, 2012)
Special Circumstance Murder: Kidnapping – Reversible Instructional Error. People v. Brents (2/2/2012, S093754) 53 CA4th 599: The jury was told that it could find the kidnapping special-circumstance allegation true only if it found that the defendant committed the murder “to carry out or advance the commission of the crime of assault by force.” This was reversible error because the jury could only find the special true if it found that the defendant committed the murder to carry out the crime of kidnapping. Under People v. Green (1980) 27 CA3d 1, the prosecution had to prove that defendant kidnapped the victim for an independent felonious purpose and therefore that the kidnapping was not merely incidental to the murder.
Prosecutorial Misconduct. People v. Fuiava (2/6/2012, S055652) 53 CA4th 622: The California Supreme Court disapproved the following prosecutorial misconduct: (1) arguing that an officer who testified he was wearing the uniform of the victim officer, with the victim’s blood still on it; (2) DA said he was going to join the police officers gang, the Vikings, and put a Viking pin on his suit (improper vouching); and (3) DA referred to the defendant as a “killing machine,” and asked how many more victims there were when there was no evidence that the defendant had killed anyone else.
Miranda. People v. Enraca (2/6/2012, S080947) 53 CA4th 735: Defendant requested counsel after executing Miranda waiver, the detective ceased questioning, and the defendant was then taken to booking area where he voluntarily initiated a conversation with another detective in which he confessed. His statements to the second detective were not obtained in violation of constitutional rights.
Victim Impact: Jurors Should Not Consider Impact Of Their Verdict On The Victims. People v. Enraca (2/6/2012, S080947) 53 CA4th 735: The DA in effect asked the jury to come back with a death verdict out of concern for the feelings of the families of the victims. This was misconduct because victim impact evidence is admissible to consider the impact of the defendant’s conduct, not the potential impact of the jury’s decision on the victim’s families.
Anonymous Jury Permitted On A Showing Of Threats To Witnesses. People v. Thomas (2/23/2012, S048337) 53 CA4th 771: California Supreme Court upholds use of an anonymous jury, relying heavily on the fact that two DA witnesses had been threatened and one had been offered a bribe. The court noted that defense counsel was given the names of the jurors, to assist in jury selection, and that prejudice to the defendant was minimized because the judge explained that the jurors were being referred to by number to protect them from the press.
Grants of Review
People v. Nunes REV GTD (2/15/2012, S198392) 200 CA4th 587: Briefing deferred pending decision in People v. Mesa REV GTD (10/27/2010, S185688) 186 CA4th 773, which presents the following issue: Does Penal Code section 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 have promoted, furthered, and assisted felonious criminal conduct by members of the gang?
People v. Santana REV GTD (2/22/2012, S198324) 200 CA4th 182: Does CALCRIM 801, which defines the crime of mayhem, incorrectly require the People to prove that a defendant caused serious bodily injury to the victim?
The following case was transferred for reconsideration in light of People v. Maultsby (2012) 53 CA4th 296:
People v. Vidales REV GTD (12/15/2010, S187220) 2010 Cal. App. Unpub. LEXIS 7209.
California Courts of Appeal (February 1-29, 2012)
Impeaching With Prior Felony Convictions. People v. Gabriel (2/3/2012, B228244) 203 CA4th 199: The defendant testified and was impeached with prior felony convictions for marijuana cultivation and possession of an assault weapon (PC 12280(a)). A defendant may only be impeached with prior felony convictions if those convictions involve moral turpitude. The reviewing court held that the two priors each did involve moral turpitude.
Implied Malice: Parental Neglect. People v. Latham (2/7/2012, D058385) 203 CA4th 319: There was sufficient evidence to support the implied malice second degree murder convictions of the victim’s parents after their 17-year-old daughter died of diabetic ketoacidosis, a serious but treatable condition. A parent owes his or her child a duty to obtain needed medical attention. (People v. Burden (1977) 72 CA3d 603, 614.) Both parents possessed the mental state requisite to support the conviction, including proof that victim’s medical condition in the days prior to her death should have placed the defendants on notice of her acute need for treatment.
Gang Charge. People v. Louie (2/7/2012, C062821) 203 CA4th 388: A gang enhancement under PC 186.22(b)(1) may not be imposed when subdivision (b)(4) or (b)(5) applies instead.
False Personation: Requires Act Beyond False Identification. People v. Casarez (2/12/2012, F061052) 2012 Cal. App. LEXIS 225: PC 529(a)(2) conviction reversed due to insufficient evidence that the defendant committed an additional act beyond falsely identifying himself to the officer.
Kidnapping For Robbery: Movement Element. People v. Leavel (2/17/2012, D058907) 203 CA4th 823: The crime of kidnapping for robbery (PC 209(b)) requires proof that the movement of the victim is beyond that necessary to the robbery and exposes the victim to increased harm beyond that inherent in robbery.
Burglary By Acetylene Torch: Defendant Must First Be Inside The Building. People v. Cardwell (2/22/2012, D060320) 203 CA4th 876: PC 464 (burglary by acetylene torch) requires proof that the defendant is inside the building before using the torch. Appellant, convicted of section 464 by jury trial, contended on appeal that there was insufficient evidence to support the conviction. According to the evidence presented at trial, appellant used a torch to cut a hole in the exterior door of the store and then stole store merchandise. However, for PC 464 to be triggered, the defendant must first be inside the building when he uses the torch to open the secure place. (Disagreeing with People v. Collins (1969) 273 CA2d 1.)
Batson/Wheeler: Remedy Of Reseating The Improperly Excused Juror. People v. Mata (2/23/2012, B226256) 203 CA4th 898: When a prosecutor’s peremptory challenge to a juror is overruled on the basis of Wheeler, the remedy of reseating the juror is only available with the consent of the defense.
Medical Marijuana As Defense To Charge Of Transporting. People v. Colvin (2/23/2012, B227958) 203 CA4th 1029: The Compassionate Use Act (CUA), passed in 1996, provides a defense to a charge of transportation of marijuana when it is carried by a qualified patient operating a legitimate dispensary.
Single Fingerprint As Sufficient Evidence. People v. Tuggle (2/24/2012, B228064) 2012 Cal. App. LEXIS 209: The presence of the defendant’s fingerprint on a movable object inside a residence was sufficient evidence of identity from which to support a burglary conviction. Compare Mikes v. Borg (9th Cir. 1991) 947 F2d 353.
Resisting Arrest Is Not LIO Of PC 69. People v. Smith (2/24/2012, B223181) 2012 Cal. App. LEXIS 210: The offense of resisting arrest, PC 148, is not a lesser included offense of PC 69, and there is no duty to instruct on it as a lesser included offense.
Reverse For Denial Of Romero Motion. People v. Smith (2/24/2012, B223181) 2012 Cal. App. LEXIS 210: Sentence of 150-years-to-life was vacated and remanded to consider exercising discretion pursuant to People v. Superior Court (Romero) (1996) 13 CA4th 497. There was an abuse of discretion in the denial of a motion to strike a prior conviction to avoid a Three Strikes sentence. The trial court failed to consider the defendant’s mental illness, the impropriety of his housing in county jail at the time of the offense because the sheriff had neglected the duty to deliver him to state prison, and the relatively minor nature of the commitment offenses.
Sex With An Unconscious Person: Insufficient Evidence Of Unconsciousness. People v. Lyu (2/28/2012, B232192) 2012 Cal. App. LEXIS 230: Sex offenses involving an unconscious person require that the person actually be unconscious, not simply unaware of the attack until it occurs.
Forcible Lew Acts: Duress. People v. Rouse (2/28/2012, H034647) 2012 Cal. App. LEXIS 231: The convictions of forcible lewd acts, violations of PC 288(b)(1), were supported by evidence of duress.
Convictions For Both Elder Abuse And Grand Theft Affirmed. People v. Schoenbachler (2/29/2012, H035242) 2012 Cal. App. LEXIS 237: Felony financial abuse of an elder by embezzling funds from an annuity had a separate intent and objective from a grand theft involving the sale of jewelry and separate convictions were supported.
U.S. Supreme Court
(February 1-29, 2012)
Miranda. Howes v. Fields (2/21/2012, No. 10-680) ___ US ___ [182 LEd 2d 17; ___ SCt ___; 2012 U.S. LEXIS 1077]: Police questioning of a prison inmate about misconduct occurring prior to incarceration, alone, does not constitute “custodial” for Miranda purposes.
Brady Document Held Not To Be Exculpatory. Wetzel v. Lambert (2/21/2012, No. 11-38) ___ US ___ [182 LEd2d 35; ___ SCt ___; 2012 U.S. LEXIS 1684]: A document in the possession of the police came to light many years after the defendant was convicted. The federal Court of Appeals found Brady error (Brady v. Maryland (1963) 373 US 83). In a per curiam opinion (over a strenuous dissent), the United States Supreme Court claimed that the document wasn’t clearly exculpatory, but is in fact entirely ambiguous, and thus the failure to disclose it wasn’t Brady error.
9th Circuit Court of Appeals
(February 1-29, 2012)
Retrial After Mistrial: Double Jeopardy. U.S. v. Lopez-Avila (2/14/2012, 9th Cir. No. 11-100130) 2012 U.S. App. LEXIS 2987: Retrial after mistrial is not barred by double jeopardy where the prosecutor deliberately altered defendant’s statements to make it appear as though the defendant lied, in an effort to convict her.
Other State Decisions
(February 1-29, 2012)
New Gloss On Crawford Based On What Defense Knew. When a witness does not show up for trial, the DA can still get in the witness’s preliminary testimony, so long as the defense had an opportunity to cross-exam the witness. In People v. Torres (Ill. No. 111302, 2/2/2012) 2012 Ill. LEXIS 305, 2012 IL 111302, the Illinois Supremes note that the admissibility rule now has a constitutional gloss because of Crawford v. Washington (2004) 541 US 36. Not only does the defense have to have a reasonable opportunity to cross, but what they knew and when they knew it might show that there wasn’t an opportunity to fully cross. In Torres, defense didn’t know about inconsistent statements given by the witness, or that the witness was undocumented. The court ruled that under these circumstances, the defense did not have a reasonable opportunity to cross, so the testimony should not have been admitted.