CALIFORNIA CASELAW UPDATE – Selected California Cases
California Supreme Court (January 1-31, 2010)
Disqualification: Appearance Of Judicial Bias. In re Freeman (1/21/2010, S150984) 47 C4th 993: In light of Caperton v. A.T.Massey Coal Co. Inc. (2009) ____ US ____ [173 LEd2d 1208;129 SCt 2252], Court holds that case did not present the “extreme facts” that require judicial disqualification under the due process clause. Even though Capterton does not require actual bias, the probability of bias must be so great as to be constitutionally intolerable.
Drugs: Marijuana Possession. People v. Kelly (1/21/2010, S164830) 47 C4th 1008: HS 11362.77, a part of which limits the amount of marijuana a “qualified patient” may possess or cultivate, is invalid because it attempted to amend the Compassionate Use Act, HS 11362.5, which was an initiative, without voter approval.
Minor’s Request For Parent Does Not Invoke Miranda. People v. Lessie (1/28/2010, S163453) 47 C4th 1152: California Supreme Court, reevaluated its prior holding in People v. Burton (1971) 6 C3d 375 , which held that a minor’s request to consult with a parent made at any time prior to or during questioning, be construed to indicate that the minor desired to invoke his Miranda rights.
Grants Of Review:
People v. Bye REV GTD (1/13/2010, S178333) 2009 Cal. App. Unpub. LEXIS 8471, People v. Gonzalez REV GTD (1/13/2010, S178334) 2009 Cal. App. Unpub. LEXIS 8691 and People v. Stoltie REV GTD (1/13/2010, S178336) 2009 Cal. App. Unpub. LEXIS 8610: Briefing deferred pending decision in People v. Engram REV GTD (12/02/2009, S176983) 2009 Cal. App. Unpub. LEXIS 7063, People v. Hajjaj REV GTD (9/30/2009, S175307) 175 CA4th 415, and People v. Wagner REV GTD (9/30/2009,S175794) 175 CA4th 1377, which include the following issues: (1) Did the trial court err in dismissing this case for violation of defendant’s statutory right to a speedy trial on the ground no criminal courtroom was available? (2) Should criminal cases facing dismissal on speedy trial grounds be given precedence over civil cases pursuant to PC 1050(a), either as a matter of law or under the circumstances of this case?
People v. Rotroff REV GTD (1/13/2010, S178455) 178 CA4th 619: Briefing deferred pending decision in People v. McKee REV GTD (1/28/2010, S162823) 160 CA4th 1517: Does the amended Sexually Violent Predator Act violate appellant’s constitutional rights to due process of law, is it an illegal ex post facto law, and does it violate equal protection?
In re J.H. REV GTD (1/21/2010, S179579) 179 CA4th 1337 and In re V.V. REV GTD (1/21/2010, S177654)2009 Cal. App. Unpub. LEXIS 7656: Was the evidence insufficient to support the finding that juvenile wards J.H. and V.V. committed arson in violation of PC 451(c)? Does the “malice” element of arson require the intent to do harm?
In re M.M. REV GTD (1/21/2010, S177704) 177 CA4th 1339: Is a campus security officer employed by a public school district a “public officer” for purposes of a charge of willfully resisting, delaying, or obstructing a “public officer” in violation of PC 148?
California Courts of Appeal (January 1-31, 2010)
Evidence Insufficient For Mayberry Defense. People v. Hernandez (12/17/2009, D053807) 180 CA4th 337: Mayberry (15 C3d 143) provides that if a defendant honestly and reasonably, though mistakenly, believes that the vic. consented to sex, that’s a defense to rape. (See CALCRIM 1000, 1030.) The judge must give a Mayberry instruction when that instruction is supported by substantial evidence. Hernandez did not contain substantial evidence for the giving of a Mayberry instruction because the facts show that the claim of consent wasn’t reasonable
PC 140(a) Does Not Violate The First Amendment. People v. Lowery (12/21/2009, E047614) 180 CA4th 630: PC 140(a) is not unconstitutionally overbroad under the 1st Amendment.
Burglary Of Own Home. People v. Ulloa (12/21/2009, E045880)180 CA4th 601: People v. Gauze (15 C3d 709), which precludes convicting someone of burglarizing their own home, does not apply when the person has moved out.
Rape By Concealment: Passive vs. Active. People v. Leal (12/23/2009, B211365) 180 CA4th 782: Convictions for rape and sexual penetration by artifice, pretense or concealment can be based on passive, as opposed to active, concealment.
Preemption Doctrine. People v. Murphy (12/28/2009, E046742) 180 CA4th 905: Under the preemption doctrine, prosecution under a general criminal statute with a greater punishment is prohibited if the Legislature has enacted a specific statute covering the same conduct, with the intent that the specific statute governs.
Fraudulent Misrepresentation (PC 243.4(c)): Sufficiency Of Evidence. People v. Pham (12/28/2009, G040848) 180 CA4th 919: The totality of defendant’s conduct will determine whether there is a fraudulent misrepresentation to support a conviction for PC 243.4(c).
Discharging Firearm Enhancement. People v. Frausto (12/28/2009, B212054) 180 CA4th 890: For the purpose of PC 12022.53(d) (personal discharge of a firearm causing great bodily injury or death), discharge of the firearm before, during, or after the felonious act will support the enhancement if the discharge is part of a continuous transaction.
Harmonizing Conflicting Record. People v. Thompson (12/29/2009, D054037) 180 CA4th 974: When the record is in conflict, it will be harmonized if possible, but if it is not possible to do so, that part of the record which, because of its origin and nature or otherwise, is entitled to greater credence, will prevail.
Statute of Limitations: No Objection In Trial Court Required To Preserve. People v. Hollie (1/8/2010, A121545) 180 CA4th 1262: An issue as to the statute of limitations is not forfeited by lack of objection in the trial court, and a time period to initiate prosecution that has been extended subsequent to the commission of an offense will apply if the prior period has not expired at the time of extension.
PC 422: Definition Of Sustained Fear. People v. Fierro (1/11/2010, B209030) 180 CA4th 1342: The sustained, reasonable fear element of PC 422 (criminal threats) means a period of time that extends beyond what is momentary, fleeting, or transitory, and can be as short as one minute.
False Imprisonment Of Unresisting Child Or Infant (PC 236). People v. Dominguez (1/11/2010, B212967) 180 CA4th 1351: For the purpose of false imprisonment, the amount of force required to violate the personal liberty of an unresisting infant or child is the amount required to take the child a substantial distance for an illegal purpose or with an illegal intent. This is the standard from In re Michele D. (2002) 29 C4th 600.
Gang Offense: No Enhancement For Non-Shooter. People v. Gonzales et al. (1/12/2010, B207856) 180 CA4th 1420: In a gang-related offense involving the use or discharge of a firearm, the principal who does not use or discharge a firearm is not subject to imposition of an enhancement for participation in a criminal street gang when an enhancement is imposed for the weapon.
School Is “Public Place” Under PC 594.1(e)(1). In re Miguel H. (1/12/2010, B214864) 180 CA4th 1429: A school is a “public place” for the purpose of PC 594.1(e)(1), which prohibits a person under the age of 18 years from possessing an aerosol container to deface a public place.
GBI During Felony Qualifies As A Serious Felony Under PC 1192.7. People v. Skiles (1/11/2010, G040808) 180 CA4th 1363: A felony that is not listed in PC 1192.7, is still considered a serious felony under that section if defendant inflicted great bodily injury on a person other than an accomplice during the commission of the felony; and the trial court can consider the entire record of the conviction to determine if it qualifies as a “strike.”
Drunk Driving: Substituting Felonies With Misdemeanors. People v. Powell (1/25/2010, C057847) 181 CA4th 304: Trial court had jurisdiction to substitute lesser-included misdemeanors for felony DUI’s for which there was insufficient evidence at trial, after granting defendant’s motion for acquittal of the felony charges. Distinguishes People v. Garcia (1985) 166 CA3d 1056 and People v. McElroy (1989) 208 CA3d 1415, where there was a break between the dismissal and the subsequent filing.
Whether Acquittal Per PC 1181.1 Applies To Uncharged Lesser Included Offenses. People v. Powell (1/25/2010, C057847) 181 CA4th 304: Where the accusatory pleading fails to charge lesser included offenses and the court grants an acquittal pursuant to PC 1118.1, if a period of time has passed, such that defendant has achieved a “modicum of repose from prosecution,” the acquittal also applies to a lesser included offense.
Jury Must Consider Manslaughter Before Convicting Of Murder. People v. Her (12/28/2009, mod’d 1/26/2010, C058443) 181 CA4th 349: CALCRIM 522 does not impermissibly suggest that the jury must first make a finding of murder before it can consider voluntary manslaughter as a lesser offense.
CC 604 Erroneously Defines Voluntary Manslaughter Based On Imperfect Self-Defense. People v. Her (12/28/2009, mod’d 1/26/2010, C058443) 181 CA4th 349: CALCRIM 604 erroneously requires that to find voluntary manslaughter, the jury must find that defendant believed he was in imminent danger and immediate use of deadly force was necessary and the two beliefs were unreasonable, because the unreasonableness of either belief is sufficient to transform perfect self-defense into imperfect self-defense. Here, although the appellate court agreed CALCRIM 604 was erroneous, it found no prejudice because the instructions, considered as a whole, adequately instructed on the elements of the crimes in question.
Dismissal Of Felony Charges Does Not Bar Prosecution On The Remaining Misdemeanor Charges. People v. Hernandez (1/26/2010, E047219) 181 CA4th 404: Where the initial misdemeanor complaint alleging driving under the influence is dismissed and a felony complaint/information alleging the same offense, but with prior convictions, is then filed, PC 1387 does not bar prosecution of the offense when the prior conviction required for felony driving under the influence is stricken, thereby returning the offense to a misdemeanor.
CC Instructions Erroneously Preclude Conviction Of Aider And Abettor Of A Lesser Offense. People v. Nero (1/27/2010, B206799) 181 CA4th 504: An aider and abettor may be found guilty of a lesser homicide-related offense than those the actual perpetrator committed. The trial court committed prejudicial error by instructing the jury that an aider and abettor must be “equally guilty” with the perpetrator. The Supreme Court in People v. McCoy (2001) 25 C4th 1111, 1115 previously held that if a persons mens rea is more culpable than another, that person may be guilty of a greater crime, even as the aider and not the direct perpetrator. The aider and abettor instructions in CALJIC 3.00 are confusing and should be modified.
Attempted Homicide: Insufficient Evidence. People v. Leon (1/27/2010, B211679) 181 CA4th 452: Evidence insufficient to prove defendant intended to kill both victims when he fired a single shot that could not have hit both. Distinguishes People v. Smith (2005) 37 C4th 733, where single shot could have killed both victims.
Attempted Murder: “Kill Zone” – Single Shot At Vehicle Does Not Necessarily Prove An Intent To Kill All The Occupants. People v. Leon (1/27/2010, B211679) 181 CA4th 452: A single gunshot fired into a vehicle with three occupants is insufficient to establish intent to kill all the occupants under a “kill zone” theory.
Theft: Embezzlement. People v. Sisuphan (1/29/2010, A122351) 181 CA4th 800: PC 512 does not provide a defense to embezzlement even if evidence shows defendant intended to return the money and did so before charges filed.
Impact Of Leniency Agreement Between Defendant And Police. People v. C.S.A. (1/29/2010, A122776) 181 CA4th 773: Where the defendant and local police department entered into a cooperation agreement, not authorized by the district attorney, which provided that certain criminal charges would be dismissed if the defendant supplied certain information, the defendant could make a pretrial motion to dismiss based on that agreement, but the prosecutor was not bound by the agreement. The prosecution is the sole charging and prosecutorial authority. (Dix v. Superior Court (1991) 53 C3d 442, 452-452.) The officers had no authority to promise leniency and the defendant’s reliance on the officers’ unauthorized promise had no constitutional consequence permitting dismissal on due process grounds. (United States v. Williams (9th Cir. 1986) 780 F2d 802.) There are exceptions to this rule as set forth in United States v. Flemmi (1st Cir. 2000) 225 F3d 78.
U.S. Supreme Court (January 1-31, 2010)
Right To Public Trial: Voir Dire. Presley v. Georgia (1/19/2010 No. 09-5270) ____ US ____ [175 LEd2d 675; 130 SCt 721]: The United States Supreme Court held that the defendant ‘s Sixth Amendment right to a public trial in criminal cases extends to voir dire of prospective jurors. The public has a right to be present whether or not any party has asserted the right. The trial court must consider reasonable alternatives to closing proceedings, even when parties have not offered alternatives.