CALIFORNIA CASE LAW UPDATE – Selected California Cases
California Supreme Court (January 1-January 31, 2008)
People v. Lopez (1/28/2008, S143615) 2008 Cal. LEXIS 804: A court of appeals’ decision reversing a Catholic priest’s convictions for sex offenses is reversed where: 1) certain comments to the jury by the prosecutor during closing and rebuttal arguments were not misconduct; and 2) no IAC for failure to object.
People v. Lopez (1/28/2008, S143615) Prosecutorial misconduct requires reversal under the federal Constitution when it so infects the trial with unfairness that the conviction is a denial of due process; under state law, misconduct results even when the actions do not result in an unfair trial. (Darden v. Wainwright (86) 477 US 168; People v. Cook (2006) 39 C4th 566.) Misconduct cannot be reached on appeal unless a timely objection was entered with a request that the jury be admonished. Although defendant can argue ineffective assistance of counsel for failure to object, the record usually is insufficient to support the claim and defendant must rely on a habeas action. Misconduct results when the prosecution argues guilt by association (People v. Casteneda (97) 55 CA4th 1067), asks the jurors to stand in the victim’s shoes (People v. Stansbury (93) 4 C4th 1017), and expresses personal belief in defendant’s guilt in such a manner that the jury will view the statement as based on information other than that adduced at trial (People v. Mincey (92) 2 C4th 408). In this case, appellant, a Catholic priest, was convicted of numerous counts of molestation and sentenced to prison for six years and eight months. The appellate court reversed the judgment on the basis of ineffective assistance of counsel resulting from counsel’s failure to object to the prosecution’s argument. The Supreme Court reversed, finding that there was no need to object as the prosecution did not commit the claimed misconduct of arguing guilt by association, urging the jurors to stand in victim’s shoes, or expressing a personal opinion of guilt.
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 between individuals of the “partition ratio,” which defines the percentage of alcohol in a breath sample that corresponds to a given level of alcohol in the blood, be admissible in a prosecution for driving under the influence in violation of VC 23152(a)? (2) Should evidence of a defendant’s personal partition ratio be admissible in such a case?
People v. Randall REV GTD (1/3/2008, S157645) 155 CA4th 228: (1) Does PC 1191.1 grant the victim of a crime the right to be heard by a trial court at all sentencing hearings? (2) If not, what is the scope of the trial court’s discretion to hear from the victim at sentencing?
People v. Superior Court (Smith) REV GTD (1/3/2008, S158084) 2007 Cal. App. Unpub. LEXIS 8053: (1) Does PC 1191.1 grant the victim of a crime the right to be heard by a trial court at all sentencing hearings? (2) If so, was it harmless error here for the trial court not to allow the victim, who spoke at the original sentencing hearing, to speak at the time of resentencing after the trial court recalled the original sentence?
People v. Garcia REV GTD (1/3/2008, S157870) 155 CA4th 929: Briefing deferred pending decision in People v. Ramirez REV GTD (12/12/2007, S156775) 154 CA4th 1290, which presents the following issue: Is grossly negligent discharge of a firearm (PC 246.3) a lesser included offense of discharge of a firearm at an inhabited dwelling (PC 246)?
People v. Allison REV GTD (1/3/2008, S158278) 2007 Cal. App. Unpub. LEXIS 8218 and People v. Chaffee REV GTD (1/16/2008, S158873) 2007 Cal. App. Unpub. LEXIS 8864: Briefing deferred pending decision in People v. Towne REV GTD (7/14/2004, S125677) 2004 Cal. App. Unpub. LEXIS 4760, and People v. French REV GTD (2/7/2007, S148845) 2006 Cal. App. Unpub. LEXIS 9689, 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 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. White REV GTD (1/3/2008, S158179) 133 CA4th 473 and People v. Linarez REV GTD (1/16/2008, S158154) 155 CA4th 1393: Briefing deferred pending decision in People v. Towne REV GTD (7/14/2004, S125677) 2004 Cal. App. Unpub. LEXIS 4760, 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. Ceja REV GTD (1/16/2008, S157932) 155 CA4th 1246: If a defendant is improperly convicted of both stealing property and receiving the same stolen property (see PC 496(a)), should the theft conviction or the receiving conviction be reversed?
People v. Moye REV GTD (1/16/2008, S157980) 2007 Cal. App. Unpub. LEXIS 7938: Did the trial court err to defendant’s prejudice in failing to instruct the jury on voluntary manslaughter on a theory of provocation and heat of passion as a lesser included offense of second degree murder?
People v. Marble REV GTD (1/23/2008) S159324 2007 Cal. App. Unpub. LEXIS 9241 and People v. McMillon REV GTD (1/23/2008, S159136) 2007 Cal. App. Unpub. LEXIS 9085: Briefing deferred pending decision in People v. French REV GTD (2/7/2007, 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. Vang REV GTD (1/23/2008, S159190) 2007 Cal. App. Unpub. LEXIS 8980 and People v. Banegas REV GTD (1/30/2008, S158978) 2007 Cal. App. Unpub. LEXIS 9070: Briefing deferred pending decision in People v. Towne REV GTD (7/14/2004, S125677) 2004 Cal. App. Unpub. LEXIS 4760, 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.
People v. Traylor REV GTD (1/30/2008, S157820) 156 CA4th 339: Can a misdemeanor complaint charging a lesser included offense be filed if a felony complaint charging the greater crime was dismissed after a preliminary hearing?
Dispositions:
Review in the following case was dismissed in light of People v. Sloan (2007) 42 C4th 110 and People v. Izaguirre (2007) 42 C4th 126: People v. Jenkins REV DISD/DEPUB (2007) 143 CA4th 369.
The following case was transferred for reconsideration in light of People v. Sloan (2007) 42 C4th 110: People v. Julius REV DISD/DEPUB (2007) 2007 Cal. App. Unpub. LEXIS 3313.
California Courts of Appeal (January 1-January 31, 2008)
Selected Decisions:
People v. Lawrence (1/2/2008, B193831) 158 CA4th 685: Where the defendant waived his right to counsel and invoked his right to self-representation under Faretta, after trial court adequately advised him of dangers and advised him he would be afforded no special treatment, and waiver form defendant completed notified him of his rights and warned him about disadvantages of self-representation with specificity, defendant’s waiver was knowing and voluntary. However, where the defendant changed his mind during jury selection and requested the appointment of counsel at that time and also at the close of jury selection, the court abused its discretion in denying defendant’s request at end of first day of trial, (People v. Elliott (77) 70 CA3d 984, 997-998; People v. Hill (83) 148 CA3d 744, 760), even though the right to reobtain counsel is not absolute. (See Id. at 993). Most courts in California have not found the error to be structural, People v. Ngaue (1991) 229 CA3d 1115, 1126, People v. Elliott, supra 70 Cal.App.3d at p. 998), but this court found that the error was “structural” and required reversal without analysis of prejudicial effect because deprivation of counsel at a critical stage of a criminal trial constitutes federal constitutional error affecting framework within which trial proceeds with consequences that are necessarily unquantifiable and indeterminate. (United States v. Gonzalez-Lopez (2006) 548 US [165 LEd2d 409; 126 SCt 2557].)
People v. Sudar (12/18/2007, A115464) 158 CA4th 655, modified 1/2/2008 at 2008 Cal. App. LEXIS 3: In an NGI proceeding, the failure to instruct the jury that the prosecution must prove “serious difficulty controlling dangerous behavior” was harmless error. Appellant contended on appeal from his extended NGI commitment that reversal was required due to the trial court’s failure to give a requested jury instruction. Appellant had argued that the standard jury instruction, CALCRIM 3453, should be modified to include the requirement set forth in In re Howard N. that the prosecution prove the person to be committed could not control his dangerous behavior. The trial court denied the request, and the jury was instructed with CALCRIM 3453 that the jury had to find that appellant posed a danger to others due to his mental illness. On appeal, respondent conceded that the trial court erred in failing to instruct the jury pursuant to Howard N., but argued that the error was harmless because there was overwhelming evidence that appellant had serious difficulty controlling his dangerous behavior. The appellate court agreed and affirmed. The evidence was undisputed that appellant suffered the same delusions he had at the time of commitment that if God told him to do something, he had to do it. The evidence showed that appellant did not try to control his dangerous behavior because he perceived he had no reason to do so. The instructional error was harmless beyond a reasonable doubt.
People v. Oglesby (1/7/2008, G037796) 158 CA4th 818: Where there was no new evidence presented, the trial court did not err by failing to hold a second competency hearing prior to sentencing.
People v. Jefferson (1/7/2008, B192952) 158 CA4th 830: Where after the police interrogated the defendants, they were put in a cell together where the police bugged the jail cell hoping they would talk, such action was not “interrogation.” (See People v. Thornton (2007) 41 C4th 391, 433 [grandmother’s talk with appellant in his jail cell, not Miranda violation].) The court did not violate defendants’ Fifth Amendment or Miranda rights when it admitted tape of conversation into evidence. There was no Aranda/Bruton violation. Where the defendants declined to testify, introduction of the tape did not violate their Sixth Amendment right to confront witnesses because conversation on tape, which was neither a formal statement nor one that an objective witness would reasonably have expected to be available for use in a later trial, was not “testimonial” evidence; therefore there was no Crawford violation. Introduction of the tape of the conversation between first defendant and his aunt identifying the co-participant in the crime as being one of three people, including the second defendant, violated the second defendant’s Sixth Amendment confrontation right pursuant to Richardson v. Marsh (1987) 481 US 200, 211; however, the error was harmless where tape of conversation between the defendants was properly introduced and amply established second defendant’s guilt.
People v, McFearson (1/7/2008, F051882) 158 CA4th 810: Improper dual use of priors. The court here imposed the upper term based on the defendant’s priors. The court used those very same priors as prison priors under PC 667.5(b) to add time as well. The Attorney General argued that the upper term was based on the fact of the priors, while the extra time for the prison priors was based on the fact that the defendant had served time in prison. However, the reviewing court correctly recognized the Supreme Court authority rejecting this distinction. (See Jones, 5 C4th 1142.) The PC 667.5(b) enhancement IS based on the fact of the prior conviction. So the trial judge couldn’t add time twice for the same priors.
Levin v. United Airlines (1/10/2008, B160939) 158 CA4th 1002: PC 148.1(a), which criminalizes the reporting of a bomb to specified persons, is a general intent crime that requires only that the report was made to the specified party with the knowledge that it was false.
People v. Matye (1/10/2008, C050332) 158 CA4th 921: There was sufficient evidence to establish violation of PC 368.
People v. Martinez (1/15/2008, G038150) 158 CA4th 1324: Where the expert gang officer had worked in the gang’s territory for several years and testified as to specific activities of the gang, a foundation existed for the officer’s expert opinion that the gang was a criminal street gang. Evidence that the defendant was an admitted member of a gang and that his brother-in-law, with whom he committed crimes, was also an admitted member, together with expert testimony regarding tendency of gang members to commit crimes together, was sufficient to establish that crimes were gang-related even though crime was not committed on and defendant did not live on gang turf or that expert had never heard of defendant or his brother-in-law. The court correctly gave CALCRIM 1400, that the jury could convict the defendant of street terrorism if it found that he committed crimes in association with the criminal street gang, due to the fact that the charge of street terrorism, unlike a street-gang enhancement allegation, does not require proof that crime was committed for gang’s benefit. (See People v. Herrera (99) 70 CA4th 1456, 1467.)
Good v. Superior Court (1/16/2008, A117317) 158 CA4th 1494, modified at 2008 Cal. App. LEXIS 168: Proposition 69 requires misdemeanants who must register as sex offenders to provide DNA samples regardless of whether their conviction occurred before or after the passage of Proposition 69.
People v. Paredes (1/16/2008, E040123) 158 CA4th 1516: Disqualification and removal of appellant’s court-appointed counsel was an abuse of discretion. The error did not violate Noriega’s right to counsel under the federal Constitution, but it did violate his right to counsel as guaranteed by the state Constitution. The error was reversible per se. The violation of the right to counsel defies a harmless error analysis; its consequences are necessarily unquantifiable and indeterminate.
People v. Alanis (1/16/2008, H031059) 158 CA4th 1467: The filing of a valid notice of appeal vests jurisdiction of the cause in the appellate court until the appeal is determined and the remittitur has issued, so as to deprive the trial court of subject matter jurisdiction. As a general rule, although the trial court loses jurisdiction for most purposes when the notice of appeal is filed, it retains it to correct clerical errors, to vacate a void judgment such as an unauthorized sentence, and to recall sentence under PC 1170(d), if the recall is only for reasons rationally related to sentencing.
People v. Power (1/18/2008, E041445) 159 CA4th 126: Forcing a victim into sex acts at specified locations by means of threats constitutes kidnap for the purposes of a sexual offense.
Ovando v. County of Los Angeles (1/18/2008, B186504) 159 CA4th 42: New trial granted for juror misconduct based on false statements during voir dire. Also, the juror told the deliberating jury about facts not presented at trial.
People v. Curry (12/31/2007, C052801) 158 CA4th 766, modified 1/22/2008 at 2008 Cal. App. LEXIS 105: Jury instructions in kidnap/robbery case were not erroneous. The three appellants were convicted of several offenses following the kidnap, assault, and robbery of the pregnant victim. On appeal appellant Russell argued that CALCRIM 1203 on kidnap for robbery improperly allowed the jury to convict her of aggravated kidnapping without finding that she had the intent to rob the victim at the time the kidnap commenced. The appellate court rejected the argument, finding CALCRIM 1203 to be a correct statement of the law. Although it does not expressly state that the intent to rob must exist at the time the movement commences, the instruction adequately expresses the requirement. Appellant Buford argued that the court prejudicially erred in failing to instruct the jury on the requirement of unanimity with regard to the robbery charge. He contended that there was evidence of three acts of robbery, and the jurors could have disagreed about which act Buford committed. The appellate court found the error harmless. The prosecutor argued that Buford was involved in all three acts; Buford contended that he did not take anything from the victim. The evidence was overwhelming that Buford was the mastermind of all the offenses and aided in all of the robberies. All three appellants contended the court erred in instructing the jury on the effect of voluntary intoxication on the charges. The appellate court found that the instructions on voluntary intoxication were correct statements of the law, and even if they were flawed, the error was harmless in light of the record and the verdicts. CALCRIM 404 is faithful to People v. Mendoza, which does not misstate the law. The court also found no error in the instructions on premeditation, and concluded that even if the instructions were improper, there was no prejudice because the evidence was overwhelming that the offense was premeditated.
People v. Gill (1/22/2008, C051108) 2008 Cal. App. LEXIS 109: There was sufficient evidence of burglary where a husband entered a home he previously moved out of with the intent to assault his wife. Gill and his wife were having marital problems, and the wife told him to leave the house. Gill left, but returned to break into the house and threaten, assault, sexually abuse, and kidnap his wife. Gill was convicted of numerous felonies, including burglary. On appeal, he contended that a man who breaks into his family home after a marital fight is not guilty of residential burglary. The appellate court disagreed, and affirmed the burglary conviction. The entry into the home need not constitute a trespass. Since Gill had moved out of the home three weeks prior to the offense, he could claim no right to enter the residence of another without permission. Further, even if he could properly enter the house with a lawful purpose, the entry is still burglary as it was accomplished with the intent to commit a felonious assault.
People v. Williams (1/22/2008, A116295) 159 CA4th 141: EC 1109(a)(2) is not unconstitutional. Williams was convicted of several assaults on a 71-year old man. At trial, over his objection, the prosecution presented evidence of two prior attacks on older men. On appeal, Williams challenged the constitutionality of EC 1109(a)(2), which sanctioned the admission of the prior bad acts. The appellate court rejected the argument, finding that the prior acts were very similar and tended to show a propensity to commit such acts. The evidence was relevant and was no more inflammatory than the charged acts. EC 1109 (a)(2) contains the same procedural safeguards present in subdivision (a)(1), which has been upheld. There was no due process violation.
People v. Garcia (1/22/2008, B193077) 2008 Cal. App. LEXIS 106: Competency to stand trial: Court rejects any claim that there was substantial evidence of incompetency, which would have required a full competency hearing.
People v. Morton (1/22/2008, G036413) 159 CA4th 239: The trial court properly admitted a prior uncharged incident of domestic violence at a trial for domestic battery. In an appeal from a conviction for domestic battery, Morton argued that the trial court abused its discretion in allowing the jury to hear evidence of a prior uncharged incident of domestic violence under EC 1109(a)(1). The appellate court rejected the argument, finding that the prior incident of domestic violence bore significant similarities to the charged offense, and the fact that it was unprovoked made it germane to Morton’s claim of self defense. Further, the admission of testimony concerning the incident from the victim’s son was reasonable because the son was a direct witness to the incident. While he was only nine at the time of the incident, he was nineteen at the time of the testimony. The “emotional impact” of his testimony was blunted by the passage of time. The evidence of the prior incident was relevant and probative, and was tailored by the court to redact its most inflammatory elements.
People v. Reyes (1/23/2008, B196415) 159 CA4th 214: The co-defendant asked a question of the police. The DA offered this question as evidence that the defendant had done something. The DA argued that a question can’t ever violate Aranda (63 C2d 518) or Bruton (391 US 123). The reviewing court disagreed. The whole point of admitting this question was its implication, which was effectively a statement about something the defendant supposedly did. They found a violation of Aranda/Bruton.
People v. Davidson (1/23/2008, B197896) 159 CA4th 205: The trial court may reinstate a previous attempted murder conviction without violating double jeopardy principles where the murder conviction is reversed and cannot be retried. Reversal of a greater offense on appeal may revive the lesser included offense by operation of law. Nor was there a violation of double jeopardy principles. There was only one trial on attempted murder. Dismissal of the charges was not an acquittal for purposes of double jeopardy.
People v. Superior Court (Small) (1/24/2008, D051355) 2008 Cal. App. LEXIS 124: Under the SVP Act, an SVP petition to civilly commit an individual as a sexually violent predator must be filed while the person is in lawful custody and is subject to dismissal if the person’s unlawful custody is not the result of a good faith mistake of fact or law.
People v. Seminoff (1/29/2008, G037484) 2008 Cal. App. LEXIS 144: The right of cross-examination may transcend the right against self-incrimination when the credibility of the witness is central to the proceeding. Even when a witness has a valid Fifth Amendment privilege, the defendant is not entitled to present testimony free of impeachment. Here, under the totality of the circumstances, the court did not abuse its discretion in striking the testimony nor did it violate appellant’s right to due process or to present evidence.
People v. Batman (1/30/2008, C053776) 2008 Cal. App. LEXIS 146: The imposition of the DNA penalty assessments pursuant to Government Code section 70372 on offenses that occurred prior to the statute’s effective date is a violation of the constitutional prohibition against ex post facto laws. Noting the similarity of the DNA assessment to the state court facilities construction penalty assessment (Gov. Code 70372) which was found to be an ex post facto law if imposed on crimes committed prior to its enactment (People v. High (2004) 119 CA4th 1192), the court observed that the DNA penalty also is designated a penalty in the language of the statute; is based upon a percentage of any fine, penalty, or other forfeiture; and is primarily for law enforcement use. With consideration to these factors, it concluded that it was the intention of the legislature/electorate to impose punishment, and being a penalty, imposition of the assessment on offenses occurring prior to the statute’s effective date resulted in a prohibited ex post facto law. (Trop v. Dulles (58) 356 US 86, 95-96.)
Campbell v. Superior Court (1/30/2008, H032068); 2008 DJ DAR 1668: Death penalty defendant requested and received a pretrial mental retardation hearing pursuant to PC 1376 and lost. The defense found that one of the witnesses now admits giving false testimony. The reviewing court holds that there was good cause to reopen the hearing to determine whether false testimony actually was presented. If so, the trial court is to exclude the false testimony, allow the parties to present additional evidence, and make a new decision.
In re Crockett (1/31/2008, A117772) 2008 Cal. App. LEXIS 159: PC 290 conviction of juvenile was unlawful because it was beyond the trial court’s jurisdiction.
People v. McDaniel (1/31/2008, H029860) 2008 Cal. App. LEXIS 154: Defendant was denied due process when he was shackled during trial without a finding of good cause per Duran (People v. Duran (76) 16 C3d 282).
Ninth Circuit Court of Appeal (January 1-January 31, 2008)
Selected Decisions:
Frantz v. Hazey (9th Cir. 1/22/2008, No. 05-16024) 2008 U.S. App. LEXIS 1191: Petitioner’s Sixth Amendment right to self-representation was violated when standby counsel had an in-chambers discussion without his presence or consent. The appellate court reversed the district court’s denial of a habeas petition challenging the petitioner’s exclusion from a chambers conference in which his advisory counsel participated and discussed how the judge should respond to a query from the deliberating jury. Reviewing de novo the petitioner’s Sixth Amendment claim regarding his exclusion from the chambers conference, the court held that because a pro se defendant is entitled to preserve actual control over the case he chooses to present to the jury, standby counsel’s solo participation in the conference could have violated the petitioner’s right to self-representation. The panel remanded to the district court for an evidentiary hearing concerning the circumstances during the course of the trial and after the jury retired that gave rise to the petitioner’s exclusion from the conference, including whether he was accurately informed of the purpose of the conference and given the opportunity to appear but declined to do so, and for a determination whether the petitioner’s Faretta/McKaskle rights to self-representation were violated by that exclusion.
Estrada v. Scribner (9th Cir. 1/23/2008, No. 06-55013) 2008 U.S. App. LEXIS 1256: Juror affidavits detailing jury discussions are admissible evidence. The appellate court affirmed the district court’s denial of a habeas corpus petition challenging a conviction for second degree murder and taking a vehicle without the owner’s consent. It affirmed the district court’s determination that under FRE 606(b) it could not consider certain portions of the jurors’ affidavits proffered by the petitioner because they addressed the subjective effect of evidence on particular jurors, but that it could consider juror testimony about extrinsic evidence improperly brought to the jury’s attention. The panel held that the district court and the state courts erred in finding inadmissable portions of declarations discussing a juror’s introduction of his mother’s murder into sentencing discussions because the mother’s murder became extrinsic evidence.
