CALIFORNIA CASE LAW UPDATE – Selected California Cases
California Supreme Court (January 1, 2007-January 31, 2007)
People v. Calhoun (1/29/2007, S129896) 2007 Cal. LEXIS 746: An individual convicted of gross vehicular manslaughter as an aider and abettor may be subject to an enhancement under VC 20001(c) for fleeing the scene. Also, an upper term sentence may be imposed based upon a “multiple victims” aggravating factor, even if only one victim was named in each count.
Grants Of Review:
People v. Brookfield REV GTD (1/17/2007, S147980) nonpublished opinion 2006 Cal. App. Unpub. LEXIS 9129: Is a violation of PC 246 for shooting at an inhabited dwelling, which was committed for the benefit of a criminal street gang within the meaning of PC 186.22(b)(4)(B), a “felony punishable by . . . imprisonment in the state prison for life” within the meaning of PC 12022.53(a)(17), such that sentence can be enhanced under subdivisions (b) and (e) of section 12022.53 for a principal’s personal use of a firearm? (See People v. Jefferson (99) 21 C4th 86, 101; People v. Briceno (2004) 34 C4th 451, 460, fn. 7.)
People v. Jones REV GTD (1/17/2007, S148463) nonpublished opinion 2006 Cal. App. Unpub. LEXIS 9600: Is a violation of PC 246 for shooting at an inhabited dwelling, which was committed for the benefit of a criminal street gang within the meaning of PC 186.22(b)(4)(B), a “felony punishable by . . . imprisonment in the state prison for life” within the meaning of section 12022.53(a)(17), such that sentence can be enhanced under subdivision (c) of section 12022.53 for the defendant’s personal and intentional discharge of a firearm? (See People v. Jefferson (99) 21 C4th 86, 101; People v. Briceno (2004) 34 C4th 451, 460, fn. 7.)
People v. Jenkins REV GTD (1/24/2007, S147926) 143 CA4th 369 briefing deferred pending decision in People v. Izaguirre REV GTD (6/8/2005, S132980) 2004 Cal. App. LEXIS 2265 and People v. Sloan REV GTD (6/8/2005, S132605) 126 CA4th 1148, which concern whether enhancement allegations should be considered in determining whether a lesser offense is necessarily included in a charged offense as pled in the information or indictment.
California Courts of Appeal (December 27, 2006-January 31, 2007)
People v. Woods (12/27/2006, B181412) 146 CA4th 106: Multiple acts of prosecution misconduct during argument including vouching, denigrating defense counsel, arguing facts not in evidence and urging that the defendant must prove innocence. While a prosecutor may fairly comment on and argue reasonable inferences from the evidence (People v. Wharton (91) 53 C3d 522, 567) and even comment on the state of the evidence or on the defense’s failure to call logical witnesses (People v. Medina (95) 11 C4th 694, 755), she may not suggest that a defendant has a duty or burden to produce evidence or prove innocence. (People v. Bradford (97) 15 C4th 1229, 1340.) The “obligation” comment here constituted federal constitutional error. (In re Winship (70) 397 US 358, 364.) The impact of the misconduct was heightened by overruling defense counsel’s objections to it. “Although the prejudicial effect of mild misconduct during argument may be dissipated by an instruction that the statements of the attorneys are not evidence (People v. Hughey (87) 194 CA3d 1383, 1396), an instruction is not a magical incantation that erases from jurors’ minds a prosecutor’s erroneous representations, especially when the trial court implicitly endorses the representations by overruling defense counsel’s objections.”
People v. Gonzalez et al. (12/29/2006, C045935) 146 CA4th 327: Additional firearm enhancements imposed under PC12022.5(a)(1) and PC 12022.53(b) and (c) (including a 10-20-life) were unauthorized and, therefore, had to be stricken, not stayed, when court imposed enhancement under PC 12022.53(d), under the authority of subdivision (f). Rule 4.447, which provides that unauthorized enhancements must be stayed rather than stricken, conflicts with the statute and cannot override it. (Hess v. Ford Motor Co. (2002) 27 C4th 516, 532.)
People v. Eastman (1/9/2007, F049395) 146 CA4th 688: Whenever a Marsden motion is made, the inquiry is forward looking in the sense that counsel will be substituted in to provide effective assistance in the future, but the decision to replace the attorney is based on what counsel has done or not done in the past. (People v. Smith (93) 6 C4th 684, 694 695.) It was not enough that the court appointed an independent attorney to investigate the defendant’s complaints. (See People v. Makabali (93) 14 CA4th 847, 850.) Here, the defendant made a clear and unequivocal request to discharge and replace his attorney and it was error for court not to hold a Marsden hearing, and the error was not harmless within the meaning of Chapman.
People v. Costello (1/12/2007, E037674) 2007 Cal. App. LEXIS 44: Court did not abuse discretion by admitting various spontaneous statements by the victim to police officers, some involving the charged offenses and other pertaining to prior bad acts by defendant, which were admitted under EC 1109 to show a past pattern of domestic abuse. The statements were made shortly after the events to which they pertained, even though defendant was no longer in the vicinity when the statements were made. Under the doctrine of “forfeiture by wrongdoing,” the defendant who murdered the victim could not object on Confrontation Clause grounds to the admission of the victim’s testimonial hearsay statements about prior acts of domestic violence.
Alvarado v. Superior Court (People) (1/16/2007, B194139) 2007 Cal. App. LEXIS 47: Evidence of passive exposure is insufficient to elevate activity from mere “arming” to “use.” Firearm “use” requires evidence of gun-related conduct coupled with the intent that the gun-related action facilitate the crime.
In re Soderstern (1/17/2007, F047425) 2007 Cal. App. LEXIS 57: Failure to disclose to defense tape recorded interviews of two eyewitnesses denied defendant fair trial pursuant to Brady v. Maryland (63) 373 US 83, and Youngblood v. West Virginia (2006) 547 US ___ [165 LEd2d 269; 126 SCt 2188, 2190], where there was no physical evidence linking defendant to the murder; eyewitnesses were key in establishing his identity as the killer; tape recording of one witness, the victim’s daughter, showed she was distracted during interview with prosecutor and equivocated as to identity of killer but settled on defendant after persistent questioning; and tape recording of adult eyewitness who had previously implicated defendant in the crime captured him insisting to police amid coercive interrogation that he was too high on drugs to recall anything about the event. The Brady duty extends to evidence that is both favorable to the defense and material either to guilt or punishment, and to impeachment evidence known to the others acting on the government’s behalf, including the police (Id.) Petitioner carried his burden to establish favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict. It was not defendant’s duty to prove he was factually innocent. Defendant’s petition for habeas corpus was not mooted by his death where withheld tapes would have substantially changed how jurors perceived eyewitnesses, and jurors without knowledge of tapes convicted defendant of first degree murder and sentenced him to life in prison.
People v. Thomas (1/18/2007, A111109) 2007 Cal. App. LEXIS 58: Trial court erred in not instructing sua sponte on battery as a lesser included (LIO) of lewd acts charged under PC 288(c)(1). (Compare People v. Santos (90) 222 CA3d 723, 739 [battery is not a lesser include offense of lewd acts, but the issue in Santos was whether battery was a lesser related offense in the facts of that case].) Since some of the counts involved touching that was objectively nonsexual, the error was prejudicial and requires reversal.
People v. Thomas (1/18/2007, A111109) 2007 Cal. App. LEXIS 58: Because defendant’s counsel did not request a jury instruction or raise the question of the extension of the statute of limitations, the issue was forfeited when the prosecution had pled the extension in the charging documents. (Compare People v. Williams (99) 21 C4th 335 [charging document indicates on its face that the action is time-barred].)
People v. Lopez (1/18/2007, H029248) 2006 Cal. App. LEXIS 2117: Collateral estoppel properly applied to bar defendant from relitigating issue whether he had been convicted of a sexually violent offense against two or more victims, which had been resolved against him during his first commitment proceedings. Although civil commitment involves significant deprivation of liberty, standards applicable to civil proceedings may be utilized without violation of due process.
People v. Nguyen (1/22/2007, H028798) 2007 Cal. App. LEXIS 74: Following United States v. Tighe (9th Cir. 2001) 266 F3d 1187, California’s 6th District Court of Appeal held that in light of Apprendi v. New Jersey (2000) 530 US 466 and Blakely v. Washington (2004) 542 US 296, “the Sixth Amendment right to a jury trial is an integral part of the process that is due before a prior conviction may be used to increase the maximum sentence for a criminal offense.” Therefore juvenile adjudications may not be used to enhance. The court limits the application of its decision to defendants who were accused as 16 or 17 year olds of offenses sufficiently serious to warrant transfer to adult court, but who were instead found guilty in juvenile court following contested court trials.
People v. Coleman (1/23/2007, B186264) 2007 Cal. App. LEXIS 77: Where the victim’s only connection to her employer’s stolen automobile was her ability to access the automobile’s keys left in her office of employment, the purpose of the carjacking statute (PC 215) was not served.
In re Malcolm M. (1/30/2007, F049687) 2007 Cal. App. LEXIS 115: To allow conviction both as an aider and abettor and as an accessory after the fact with respect to the same crime, the acts constituting the crime must have ceased at the time of the conduct that makes the defendant an accessory.
People v. Flores (01/31/2007, D047249) 2007 Cal. App. LEXIS 121: Convictions on 16 counts of lewd acts on a child and three counts of aggravated sexual assault on a child are reversed as the jury was not instructed defendant could not be found guilty unless all of the elements of the charged offenses were proved by the prosecutor beyond a reasonable doubt, and thus defendant was denied his federal constitutional right to a jury verdict of guilty beyond a reasonable doubt.
Ninth Circuit Court of Appeal (December 29, 2006-January 31, 2007)
United States v. Nobriga (9th Cir. 12/29/2006, No. 04-10169) 2006 U.S. App. LEXIS 32040: Hawaii abuse-of-family member offense does not have element of intentional use of force or deadly weapon, and therefore does not qualify as a prior in charge of violating 18 USC 922(g)(9). Crimes involving reckless use of force are not crimes of violence.