CALIFORNIA CASELAW UPDATE – Selected California Cases
California Supreme Court (January 1-31, 2009)
People v. Bennett (1/29/2009, S058472) 45 C4th 577: Appeals – Reporting Grand Jury Testimony – Inconsequential Inaccuracies or Omissions In Appellate Record: Failure to record portions of grand jury proceedings did not violate PC 190.9 or the constitutions. The federal Constitution only requires a record adequate to permit meaningful appellate review. (People v. Howard (92) 1 C4th 1132, 1165–1166.) A record is inadequate “only if the complained-of deficiency is prejudicial to the defendant’s ability to prosecute his appeal.” (People v. Alvarez (96) 14 C4th 155, 196, fn. 8.) It is defendant’s burden to show that any deficiencies are prejudicial. (People v. Young (2005) 34 C4th 1149, 1170.) Inconsequential inaccuracies or omissions are insufficient to constitute prejudice. (Ibid.) Nor will mere speculation suffice. (Ibid.)
People v. Bennett (1/29/2009, S058472) 45 C4th 577: Prosecutor May Ask Questions Showing That the Defense Could Have Tested DNA Evidence: In People v. Zamudio ((2008) 43 C4th 327), the California Supremes Courtsaid that the DA could present evidence that an item had been provided to the defense laboratory. In this case, the DA repeatedly asked witnesses whether the sheriff’s DNA lab could have been ordered to release samples to the defense for testing. Notably, the trial judge actually sustained defense objections, noting that this raised questions about the credibility and competency of defense counsel, a point the Bennett court ignores. The court held that these questions weren’t a violation of work product, since no “writing” from the defense was involved. They also rejected claims of attorney-client privilege (no communication from a client), Griffin v. California (380 US 609) error (OK to comment on the failure of the defense to introduce material evidence), and that the questions shifted the burden of proof to the defense.
Grants Of Review:
People v. Feyrer (1/14/2009, S154242) 151 CA4th 506: The court directed briefing filed in this case, in which briefing was previously deferred pending decision in People v. Segura (8/4/2008, S148536) 44 Cal.4th 921. The decision in that matter has been filed. The case presents the following issue: Did the trial court have the power, over the prosecution’s objection, to declare defendant’s offense a misdemeanor, terminate probation, and dismiss the case when defendant had pled no contest to a felony charge of assault by means of force likely to produce great bodily injury and had admitted an enhancement for the personal infliction of great bodily injury?
California Courts of Appeal (January 1-31, 2009)
People v. Adams (12/30/2008, F053355) 169 CA4th 1009: Attempted Murder – Kill Zone: The concurrent intent (a.k.a. kill zone) theory of attempted murder does not require knowledge of the presence of the alleged victims. It only requires that (1) the defendant targeted a primary victim by creating a zone of harm, and (2) the attempted murder victims were within that zone.
People v. Crabtree (1/7/2009, B192743) 169 CA4th 1293: Counsel – No Right to Participate Personally in Own Defense: “As long as a defendant is represented by counsel at trial, he has no absolute right to participate personally in his own defense. (People v. Mattson (59) 51 C2d 777, 789.) While the Sixth Amendment guarantees both the right to self- representation and the right to counsel, a defendant who elects representation by counsel does not have a constitutionally protected right to appear as co-counsel. (People v. Bloom (89) 48 C3d 1194, 1218; People v. Hamilton (89) 48 C3d 1142, 1162.) The court may exercise its discretion and permit a defendant to actively participate in the presentation of his case. But it grants that request on a substantial showing that the cause of justice would be served and the ‘orderly and expeditious conduct of the court’s business’ would not be substantially hindered. (Mattson, supra, at p. 797.)” (People v. Pena (92) 7 CA4th 1294, 1301.)
Galindo v. Superior Court (1/7/2009, B208923) 169 CA4th 1332: Discovery – No Pitchess at Preliminary Hearing: A defendant has no right to Pitchess discovery (Pitchess v. Superior Court (74) 11 C3d 531) for a preliminary hearing.
People v. Crabtree (1/7/2009, B192743) 169 CA4th 1293: Evidence – Custodian Of Business Record Must Lay Foundation: Although sales receipt could be a business record (EC 1271), here DA failed to present the custodian of records, and instead introduced the receipt through the testimony of a police officer. Trial court erred in admitting it.
People v. Crabtree (1/7/2009, B192743) 169 CA4th 1293: General One Year Statute Of Limitations Applies To Attempted Child Molestation: The statute of limitations for attempted misdemeanor molestation of a child under the age of 14 years (PC 664/PC 647.6(a)(1)) is one year from the offense. Although PC 802(b) expressly extends the statute of limitations of misdemeanor PC 647.6(a)(1) to three years, it does not address the separate crime of an attempted PC 647.6(a)(1) violation, and under rules of statutory construction, the general one-year statute of limitation for misdemeanors governs.
Tecklenburg v. Appellate Division Of The Superior Court (1/8/2009, C055368) 169 CA4th 1402:
Possession of Child Porn on Temporary Internet Files and Deleted Hard Drive Files: PC 311.11 prohibits possession or control of child pornography, including an image of child pornography as it is displayed on a computer screen, and is not limited to knowing possession or control of the computer’s underlying data or files containing the image. Petitioner was convicted of six misdemeanor counts of knowing possession or control of child pornography (PC. 311.11). On the order of the California Supreme Court, the appellate court issued a writ of review to the superior court appellate division to transfer the matter to the appellate court for consideration as to (1) whether there was sufficient evidence to support the conviction and (2) whether a defendant can be convicted of possession of child pornography stored in a computer’s cache files, absent evidence that he was aware the cache files existed. As to the first issue, the court found that the evidence was sufficient to support the conviction. Numerous images of child pornography were found on petitioner’s home computer as well as computers to which he had access at his workplaces. Much of the pornography was similar, and some of it was the same. Petitioner made a spontaneous statement to the investigator and then one to his boss, both which could be inferred as demonstrating consciousness of guilt. As to the second issue, the court noted that every time a web page is accessed on the Internet, the computer automatically stores the material in a cache location without affirmative action by the user. Here, the cache location of appellant’s computers evidenced that he had actively searched for child pornography web sites, opened such sites, etc. The court determined that the plain language of PC 311.11 prohibits control of any child pornography image and that there is no need for evidence that petitioner was aware of the cache location itself. (Compare U.S. v. Kuchinski (9th Cir. 2006) 469 F3d 853.)
People v. Bowers (1/9/2009, F054686) 169 CA4th 1442: PC 1026.5(b) Extension: A single psychiatric opinion that an individual is dangerous because of mental disease provides sufficient evidence in a court trial for extension of a commitment under PC 1026.5(b).
People v. Cabonce (1/9/2009, A117286) 169 CA4th 1421: Defenses – Insanity Partly Caused by Intoxication: When defendant presents a defense of insanity, the defense does not apply if addiction or intoxication is the only basis for the mental disease or defect preventing defendant from distinguishing right from wrong. And where intoxication is a partial cause of the defect, the defense applies only if any recent use of alcohol has worn off and defendant is still incapable of distinguishing right from wrong. The court instructed the jury with CALJIC 4.00 and 4.02 stating that an insanity defense is not available if the sole cause of the defect is intoxication and if the defect is caused in part by intoxication the defense may or may not be established depending on whether defendant proves by a preponderance that it was the defect that caused him to not be able to tell right from wrong. The appellate court upheld the verdict of guilt, finding the instructions to be a correct statement of law.
People v. Stanphill (1/14/2009, C056038) 170 CA4th 61: Hearsay – Identification as Spontaneous Statement: (1) To qualify for admission under the spontaneous statement exception to the hearsay rule, the statement in question must purport to describe an act perceived by the declarant and have been made spontaneously while the declarant is under the stress caused by the perception. The crucial element in determining the reliability is not the nature of the statement but the mental state of the declarant. Although length of time between the incident and the statement and the fact that the statement is in response to questioning are factors to consider, they will not necessarily deprive the statement of spontaneity. (2) The due process balancing test for admissibility of hearsay under the federal constitution (United States v. Comito (9th Cir. 1999) 177 F3d 1166) does not apply to evidence falling within the spontaneous exception to the hearsay rule. Crawford v. Washington (2004) 541 US 36 does not apply to probation revocations because this was a probation hearing, not a criminal prosecution. The reliability and necessity inherent in a spontaneous statement exception satisfy the probationer’s due process confrontation rights and there is no need for the court to find good cause for declarant’s absence.
People v. Harbert (1/14/2009, A118186) 170 CA4th 42: Hit and Run – Constructive Knowledge: (1) Constructive knowledge that another person is involved in the accident is sufficient to satisfy the knowledge element for VC 20001 (hit and run with injury). Appellant, the driver of the vehicle involved in a fatal collision with a pedestrian, was convicted by jury of VC 20001 and PC 12022.7. Vehicle Code section 20001 requires proof that the driver/defendant had knowledge that another person is involved in the accident and knowledge that the person is injured. In People v. Holford (65) 63 C2d 74, the California Supreme Court held that constructive knowledge of injury is sufficient to support a conviction. (2) There is no reason why the Holford rule would not also apply to knowledge that a collision involved a person. Thus, even if defendant claimed no actual knowledge, there was substantial evidence that the accident was of such a nature that one would reasonably anticipate that it involved a person. (3) Because personal infliction of great bodily injury is not an element of VC 20001, a defendant may be sentenced on both the offense and a great bodily injury enhancement per PC 12022.7.
People v. Kenefick (1/15/2009, C055070) 170 CA4th 114: Multiplicity – Forgery – Multiple Signatures on One Document: Multiple forged signatures on a single document constitute only one count of forgery.
People v. Luna (1/15/2009, A119768) 170 CA4th 535: Attempt Versus Mere Preparation: The elements of criminal attempt are: (1) a specific attempt to commit the alleged crime, and (2) a direct but ineffectual act done toward its commission. Preparatory acts alone do not support a conviction, and possession of equipment to manufacture hashish, without more, may not support a conviction for attempted manufacture of hashish.
People v. Graff (1/20/2009, B203935) 170 CA4th 345: Due Process – Conviction on Charges Not Found at Preliminary Hearing: Due process rights violated by trial judge who allowed prosecutor to go forward with charges not established at the preliminary hearing.(See People v. Burnett (99) 71 CA4th 151, 165-166.)
People v. Wagner (1/22/2009, G039038) 170 CA4th 499: Pandering – Person Already Working As Prostitute: PC 266i(a)(2) (pandering) is limited to those situations where defendant induces a woman to become a prostitute and excludes those where defendant solicits a woman engaged in prostitution to work for him. The court granted the prosecution’s request for a modified version of CALCRIM 1151, defining the crime of pandering, to add language specifying that pandering applies to cases where defendant solicits one whom he believes to be a prostitute to work for him. Under the rules of statutory construction, the appellate court found that the language of the statute is clear and is limited to soliciting one to become a prostitute, and does not include soliciting a person working as a prostitute to change her business relationship. (Disagreeing with People v. Bradshaw (73) 31 CA3d 421). Thus, the modified instruction was wrong and appellant’s conviction for pandering was overturned.
People v. Byron (1/23/2009, B188868) 170 CA4th 657: Appeals – Late Appeal Treated as Habeas:
Even though notice of appeal was untimely, appellate court treats appeal as habeas corpus “for reasons of judicial economy.” Defendant could make out a case of ineffective assistance due to counsel’s failure to file a timely notice of appeal in a Crawford hearsay case.
People v. Williams (1/23/2009, E042038) 170 CA4th 587: EC 352 – Allowing Prosecution To “Over-Prove” Its Case: The prosecution may not “over-prove” its case. The court’s admission of evidence of numerous cumulative uncharged crimes not resulting in convictions, pursuant to EC 1101(b), was an abuse of discretion per EC 352.
People v. Force (1/26/2009, G039186) 170 CA4th 797: SVPA Constitutionality: The Sexually Violent Predator Act, as amended, does not violate state and federal constitutional due process rights, ex post facto laws, and double jeopardy, nor violate the principle against retroactive application of laws.
People v. Adams (1/27/2009, F054047) 170 CA4th 893: Destructive Devices – Definition Of “Breakable”: For the purpose of PC 12303.2 (prohibited possession of a destructive device), PC 12301 defines “destructive device” as a “breakable” container, but does not require that the container be one that would shatter. As the word “breakable” is one of common usage, the court had no sua sponte duty to define it for the jury.
People v. Anderson (1/27/2009, D050432) 170 CA4th 910: (1) Trial court had the power and authority to reconsider the admissibility of evidence allowed by the trial judge in the first trial. (See People v. Riva (2003) 112 CA4th 981, 991-992.) (2) Evidence that the decedent was suicidal had little or no relevance to the issue of whether objective evidence supported the defendant’s claim that he did not know his car had struck the decedent, giving the second trial court persuasive reason to exclude such evidence. The trial court could have reasonably concluded that evidence of the defendant’s “fight or flight” syndrome (defendant thought that someone was throwing rocks at his car), was not supported by the facts because he stopped, called his girlfriend, videotaped his vehicle and drove back to see what he had hit. Even if the evidence of the decedent’s suicidal thoughts (and therefore walked out into the street) and expert testimony on fight or flight syndrome had some relevance, the trial court did not abuse its discretion, within the meaning of EC 352, in determining that such evidence’s probative value was substantially outweighed by its prejudicial effect, and the ruling was not absurd, arbitrary or capricious, nor result in a miscarriage of justice. (People v. Rodrigues (94) 8 C4th 1060, 1124-1125.) (3) Although a defendant generally has a right to a pinpoint instruction on a particular defense theory, (see People v. Earp (99) 20 C4th 826, 886), the requested pinpoint instruction stating: “Knowledge may be imputed to the driver of a vehicle where the fact of injury is visible and obvious or where the seriousness of the collision would lead a reasonable person to assume that there must have been resulting injuries,” was properly refused because the instruction duplicated standard instructions given to the jury in CALCRIM 2140 and 3406 and could have been misleading because there might by situations where the fact of injury was not “visible and obvious” and collision was not “serious,” but overall facts were such that a reasonable person would find it probable that another person had been injured. (4) Where the defendant was charged with leaving the scene of an accident with knowledge that there had been an injury, the jury was not required to agree when that knowledge arose so long as knowledge arose before defendant left scene; as a result no unanimity instruction was required to be given. (See People v. Russo (2001) 25 C4th 1124, 1134-1135; People v. Carlin (2007) 150 CA4th 322, 347 [no unanimity instruction is required where the prosecution presents multiple theories of the case, only when that determination is based on multiple acts.]) (5) Defendant was not entitled to instruction that his duty to render necessary assistance was obviated because assistance was rendered by others where defendant denied seeing the decedent or anyone helping him, and the fortuitous fulfillment of his duty by a third party did not exonerate the defendant. (CALCRIM 2140.) (6) The trial court did not err in refusing to allow the defendant to reopen his case after oral arguments to permit other investigation of certain evidence. (See People v. Jones (2003) 30 C4th 1084, 1110 [trial court has discretion pertaining to a request to reopen, and the reviewing court considers 4 factors.]) (7) The trial court did not abuse its discretion in ordering restitution as a condition of probation, pursuant to PC 1203.1(j), where the defendant was involved in an accident that resulted in injury or death, the restitution order was reasonably related to injuries and death caused by the accident, and served the purpose of deterring future criminality. (See People v. Carbajal (95) 10 C4th 1114, 1119-1124.) The hospital, as a direct provider of emergency medical services to the decedent, suffered economic loss as a result of defendant’s criminal act and was therefore a direct victim.
People v. Rodriguez (1/29/2009, B203609) 170 CA4th 1062: Jury Instruction on the Testifying Defendant Failing to Explain or Deny (CC 361; CJ 2.62): It was not a denial of due process to instruct the jury with CALCRIM 361. In an appeal from his conviction for attempted murder and mayhem, appellant challenged CALCRIM 361, which instructed the jury that it could consider his failure to explain or deny incriminating facts. The appellate court rejected the challenge, found the instruction constitutional, and affirmed. CALCRIM 361 is similar to the content of CALJIC 2.62 which was upheld in People v. Saddler (79) 24 C3d 671. The Saddler court emphasized that the instruction cautions that the failure of a defendant to explain or deny does not create a presumption of guilt or relieve the prosecution of its burden. Similar cautionary language is included in CALCRIM 361. Further, EC 413 allows a trier of fact to consider a party’s failure to explain or deny evidence.
People v. Tabb (1/30/2009, D051402) 170 CA4th 1142: Multiplicity – Grand Theft And Grand Theft From Employer: An employee who stole from an employer could not be convicted of both grand theft and grand theft from an employer (PC 487(b)(3)).
People v. Castillo (1/30/2009, B202289) 170 CA4th 1156: SVP – Instruction On Volitional Impairment: Special instructions concerning volitional impairment were not necessary in SVP trial. Castillo was found to be a sexually violent predator (SVP) and committed to the Department of Mental Health. On appeal, he contended that the trial court failed to specially instruct the jury that it must find that his mental disorder caused him serious difficulty in controlling his dangerous behavior. He acknowledged that in People v. Williams (2003) 31 C4th 117, the court held that instructions analogous to those given at his trial comported with due process, but argued that In re Howard N. (2005) 35 C4th 117 casts doubt on Williams and requires additional “volitional impairment” instructions. The appellate court rejected the argument. Nothing in Howard N. abrogates the Williams holding.
U.S. Supreme Court (January 1-31, 2009)
Oregon v. Ice (1/14/2009, No. 07-901) ____ US ____ [172 LEd2d 517; 129 SCt 711]: Sentencing – Consecutive Does Not Require Jury Finding (Apprendi & Blakely): There is no Sixth Amendment right to a jury trial for determination of facts permitting imposition of consecutive sentences for multiple offenses. Declining to extend Apprendi v. New Jersey (2000) 530 US 466, and Blakely v. Washington (2004) 542 US 296, to state consecutive sentencing schemes, the Supreme Court upheld Oregon’s statute that assigns to judges, rather than juries, the finding of facts necessary to imposition of consecutive sentences for discrete offenses, as opposed to concurrent sentences.
Waddington v. Sarausad (1/21/2009, No. 07-772) ____ US ____ [172 LEd2d 532; 129 SCt 823]:
Aiding & Abetting: Accomplices – “In for a Dime, in for a Dollar” Accomplice Argument: Instruction that informed jury that an accomplice in the commission of “the” crime had to take action with knowledge that it would promote or facilitate the commission of “the” crime (in other words, not just any crime) is not unreasonably ambiguous so as to justify federal habeas relief. Souter, Ginsburg and Stevens dissent, arguing that the jury may have thought it could find the accomplice guilty if he assisted in what he expected would be a fist fight, which turned out to be a shooting (in for a dime [the fight], in for a dollar [the shooting]).
Van de Kamp v. Goldstein (1/26/2009, No. 07-854)____ US ____ [172 LEd 2d 706; 129 SCt 855]: Civil Rights – Prosecutors Immune for Hiding Evidence: Prosecutors absolutely immune from civil rights suits brought under 42 USC 1983 for failing to disclose impeachment material, due to failure to train properly, failure to supervise or failure to establish information system to distribute information about informants.
9th Circuit (January 1-31, 2009)
United States v. Heller (1/8/2009, 9th Cir. No. 07-30452) 551 F3d 1108: Confessions – Effect of Pain Medication: Ingestion of 7.5 milligrams of Tylenol with codeine properly found not to have impaired the defendant’s judgment or overbear his will. (United States v. Leon Guerrero (9th Cir. 1988) 847 F2d 1363, 1366.)
U.S. v. McCaleb (1/13/2009, 9th Cir. No. 06-50387) 552 F3d 1053: Inconsistent Verdicts: The district court may resubmit an inconsistent verdict to the jury for clarification. The reviewing court also rejected appellant’s claim that the court coerced a verdict with this procedure noting that since the district court could have treated the guilty verdict on the lesser included as surplusage, it did not err by asking for clarification with an ambiguous verdict. (Larson v. Neimi (9th Cir. 1993) 9 F3d 1397.)
United States v. Bond (1/20/2009, 9th Cir. No. 06-50628) 552 F3d 1092: Brady: There was no Brady violation where the defendant could have subpoenaed the witness.
United States v. Mikhel (1/22/2009, 9th Cir.No. 07-99008) 552 F3d 961: (1) Restrictions imposed on having interpreter present at meeting between defendant and counsel place an unacceptable burden defendant’s due process and Sixth Amendment rights. Requirement that the translator be cleared by the FBI and act in the presence of counsel is enough. (2) No rational reason to prevent investigators from meeting with the defendant without counsel present, when paralegals are allowed to meet.