CALIFORNIA CASE LAW UPDATE – Selected California Cases
California Supreme Court (January 1-31, 2011)
Death Penalty Affirmance. People v. Nelson (1/20/2011, S085193) 51 C4th 198.
Consent Not A Defense: Aggravated Lewd Conduct. People v. Soto (1/20/2011, S167531) 51 C4th 229: CALCRIM 1111 Approved: consent of the victim is not a defense to aggravated lewd conduct with a child under the age of fourteen years (PC 288(b)(1)). (But see dissent.)
Death Penalty Affirmance. People v. Booker (1/20/2011, S083899) 51 C4th 141.
Grand Jury: Post-Trial Challenge. People v. Booker (1/20/2011, S083899) 51 C4th 141. With a post-trial challenge to grand jury proceedings, appellant is entitled to a remedy only if he can establish that the irregularity resulted in prejudice.
Post-Conviction Discovery: No Timeliness Requirement. Catlin v. Superior Court (1/27/2011, S167148) 51 C4th 300: A motion for post-conviction discovery filed under PC 1054.9 does not have a timeliness requirement.
Death Penalty Affirmance. People v. Moore (1/31/2011, S081479) 51 C4th 386.
Grants of Review
People v. Rodriguez REV GTD (1/12/2011, S187680) 188 CA4th 722: May an active participant in a criminal street gang be found guilty of violating PC 186.22(a), when, acting entirely alone, he commits a felony, and there is no other evidence indicating the crime had anything to do with the gang?
Smith v. Superior Court REV GTD (1/12/2011, S188068) 189 CA4th 769: (1) When a defendant has asserted his or her statutory right to a speedy trial within 60 days, but a jointly-charged codefendant has requested a trial beyond the 60-day period because of his or her counsel’s unavailability for good cause, may the 10-day grace period described in PC 1382(a)(2)(B), be applied to the objecting defendant? (2) In such circumstances, does good cause exist under PC 1382(a), or PC 1050.1 to continue the objecting defendant’s trial to maintain joinder?
People v. Aranda REV GTD (1/26/2011, S188204) 188 CA4th 1490: Court limited review to the following issues: Is the trial court’s failure to give a standard reasonable doubt instruction (CALJIC 2.90) reversible per se or is such failure subject to harmless error review? If so, should harmless error be assessed under People v. Watson (1956) 46 C2d 818, or Chapman v. California (1967) 386 US 18?
People v. Mosley REV GTD (1/26/2011, S187965) 188 CA4th 1090: Does the discretionary imposition of lifetime sex offender registration, which includes residency restrictions that prohibit registered sex offenders from living “within 2000 feet of any public or private school, or park where children regularly gather” (PC 3003.5(b)), increase the “penalty” for the offense within the meaning of Apprendi v. New Jersey (2000) 530 US 466, and require that the facts supporting the trial court’s imposition of the registration requirement be found true by a jury beyond a reasonable doubt?
In re S.W. REV GTD (1/26/2011, S187897) 2010 Cal. App. Unpub. LEXIS 7726: Court limited review to the following issue: Could the juvenile court constitutionally impose on petitioner the requirements set forth in The Sexual Predator Punishment and Control Act: Jessica’s Law (Prop. 83, as approved by voters, Gen. Elec. (Nov. 7, 2006)) without giving petitioner the right to a jury trial on the underlying facts? (See Apprendi v. New Jersey (2000) 530 US 466; McKeiver v. Pennsylvania (1971) 403 US 528; People v. Nguyen (2009) 46 C4th 1007.)
The following case was transferred for reconsideration in light of Moore v. Superior Court (2010) 50 C4th 802:
Wilson v. Superior Court REV GTD (7/14/2010, S182340) 182 CA4th 145.
California Courts of Appeal (January 1-31, 2011)
DNA: Whether Expert May Testify That Defendant Is The Person Who Left The DNA; Race Of Defendant Not Critical. People v. Cua (1/3/2011, A123756) 191 CA4th 582: The court rejected appellant’s argument that the expert’s testimony concluding blood found in the victims’ car belonged to appellant was “scientifically invalid.” The court noted that now it is often possible to determine with near certainty if a biological sample matches a particular suspect. As to testimony about DNA evidence found at the crime scene, appellant alleged that there was “insufficient foundation” for evidence about random probability matches of someone with his profile because his racial group was not included. The statistics involved African-Americans, Caucasians, and Hispanics, and it was argued on appeal that appellant is Asian. The court reiterated that it is a “fallacy in the interpretation of DNA evidence … that the relevant ethnic or racial population in which to estimate a DNA profile frequency necessarily is that of the defendant.”
Collateral Estoppel: Probation Revocation Hearing. People v. Ochoa (1/4/2011, B218800) 191 Cal. App. 4th 664: The doctrine of collateral estoppel does not apply to bar retrial of a criminal prosecution predicated on the same offense which a trial court found was not proven for purposes of a probation revocation.
Untimely Disclosure Of Evidence: CC 306 Is Discretionary Sanction. People v. Saibu (1/4/2011, pub’d 1/11/2011, D054980) 191 CA4th 1005: The court found that the trial court was not required to sanction the prosecution, or give the CALCRIM 306 instruction pertaining to untimely disclosure of evidence, and that ruling is based on an abuse of discretion standard. (People v. Ayala (2000) 23 C4th 225, 299.)
Grand Theft By Employee And Embezzlement: Separate Non-Included Offenses. People v. Nazary (12/13/2010, pub’d 1/6/2011, D055646) 191 CA4th 727: Grand theft by employee and embezzlement are separate crimes and neither is a lesser included crime of the other. Even though embezzlement by an employee and grand theft larceny by an employee are both species of the crime of theft, neither one is a lesser included offense of the other because each contains elements not contained in the other offense.
Choice Of Counsel: Substitution After Death Threat Triggered Conflict. People v. Avila (1/6/2011, B216207) 191 CA4th 717: The trial court does not abuse its discretion, or infringe on a defendant’s right to counsel of choice, when it appoints separate counsel to represent defendant at a competency hearing following defendant’s death threats against the prosecutor and the public defender.
Continuous Sexual Abuse Of Minor: CC 1120 Affirmed. People v. Sigala (1/6/2011, B222758) 191 CA4th 695: CALCRIM No. 1120, defining continuous sexual abuse of a minor, correctly states the law by advising the jury that the touching need not be done in a lewd or sexual manner.
Felony Murder: Continuous Transaction Doctrine – CC 5406, Not CC 3261, Is Correct Instruction. People v. Wilkins (1/7/2011, G040716) 191 CA4th 780: Liability under the felony murder rule is defined by the continuous-transaction doctrine, not the escape rule. The court rejected appellant’s contention that the trial court erred in denying appellant’s request to instruct the jury as to the escape rule under CALCRIM 3261. The court instructed with CALCRIM 540C, which provides that the act causing death and the burglary be part of the same continuous transaction. Appellant was in flight from the burglary to the location where he would unload the property. As such, the burglary and homicide were part of a continuous transaction. The court provided the jury with the correct instruction.
Robbery: Victim’s Fear Must Be Reasonable. People v. Morehead (1/7/2011, D055889) 191 CA4th 765: A conviction for robbery (PC 211) requires force or fear. The fear must be actual, and the victim’s fear must be reasonable. CALCRIM 1600 doesn’t mention that the victim’s fear must be reasonable. The reviewing court agreed that reasonableness is required but held that there was no sua sponte duty to so instruct.
Prosecutor Misconduct: Prejudicial Error. People v. Higgins (1/13/2011, D055649) 191 CA4th 1075: The prosecutor’s numerous instances of misconduct require reversal of the conviction because the prosecutor engaged in a pattern of misconduct during the trial that rendered it fundamentally unfair. Misconduct included the following: (1) the DA argued that defense counsel and the defense expert in this rape case has “attacked” the victim in a previous, unrelated rape case, suggesting that counsel and the expert were willing to present whatever testimony necessary to avoid a conviction; (2) the DA argued that the defense expert had been hired by defense counsel to make up a defense; (3) the DA argued that there was something improper about defense counsel’s thorough cross-examination of the victim and that counsel was “taking advantage” of an “opportunity” to question her; (4) the DA insinuated in cross, and argued to the jury, that the defendant had been coached by defense counsel; and (5) the DA argued that the jury had the “right” to hold the defendant to account, by convicting him.
Gang Expert. People v. Hill (1/13/2011, A117787) 191 CA4th 1104: The gang expert was qualified to provide all the opinions admitted.
Pandering Defined. People v. Dixon (1/14/2011, C060804) 191 CA4th 1154: The crime of pandering (PC 266i(a)(2)) requires proof of luring someone to become a prostitute to satisfy the desires of another person.
Sex Offender Registration: Probation Revocation For Failure To Fulfill Change Of Address Requirement. People v. Armas (1/18/2011, B214134) 191 CA4th 1173: Appellant’s conviction for failure to fulfill a sex-offender change-of-address requirement was supported by substantial evidence, and so supported a revocation of probation.
Compelled Mental Examination. Sharp v. Superior Court (1/18/2011, B222025) 191 CA4th 1280: The 2010 amendment to PC 1054.3(b) authorizes the prosecution to compel a mental examination of a defendant who pleads not guilty by reason of insanity (NGI).
Pitchess: Records Custodian Must Testify Under Oath. People v. White (1/20/2011, B218065) 191 CA4th 1333: In a Pitchess hearing, the custodian of records who produces the records and testifies at the in camera hearing must be placed under oath.
Entrapment: Not Applicable To Internet Vigilante Group. People v. Federico (1/21/2011, E048833) 191 CA4th 1418: An entrapment defense applies only when the conduct of law enforcement or its agent was likely to induce a normally law-abiding person to commit the offense.
Multiple Enhancements: Applicability Of PC 654. People v. Ahmed (1/21/2011, E049932) 191 CA4th 1407: PC 654 prohibits imposition of separate, unstayed sentences for firearm use and infliction of great bodily injury when defendant violated the enhancements with the same intent and objective.
Motion For New Trial: Affidavits Must Satisfy CCP 2015.5. People v. Bryant (1/24/2011, B219277) 191 CA4th 1457: Affidavits submitted as evidence in a motion for new trial must meet the requirements of section 2015.5 of the Code of Civil Procedure (CCP) by being signed as true under penalty of perjury and reflecting the place of execution, or that it was made under the laws of California.
Assault With Deadly Weapon: Factors For Jurors To Consider In Deciding Whether An Object Is A Deadly Weapon. In re Brandon T. (1/24/2011, B220588) 191 CA4th 1491: In determining if an object, not deemed a deadly weapon as a matter of law, constitutes a deadly weapon for the purpose of PC 245(a)(1), the trier of fact may consider the nature of the object and the manner in which it is used.
Juror Misconduct: Out Of Court Experiment – Test Is Not The Strength Of The Evidence But Whether The Jurors’ Impartiality Has Been Compromised. People v. Vigil (1/24/2011, C061065) 191 CA4th 1474: A juror violated the trial court’s admonition not to engage in experimentation outside courtroom by attempting to replicate the shooting circumstances, using a broomstick, and reporting the results to fellow jurors. (See People v. Collins (2010) 49 C4th 175, 246-249; see also People v. Conkling (1896) 111 C 616, 628 [a juror cannot do his or her own investigation].) A motion for new trial based on juror misconduct requires a three-part inquiry: is the evidence of misconduct admissible; if so, do the facts establish misconduct; and if they do, is the misconduct prejudicial. Although the trial court opined that the evidence against appellant was overwhelming, whether the court was correct was not the issue. Where the jury is exposed to improper outside influences, the test is not the strength of the prosecution’s case, but whether the jury’s impartiality has been compromised. Finding the juror misconduct to be prejudicial in this case, the appellate court ordered the conviction reversed and directed the trial court to enter a new order granting the new trial motion.
Drug Testing: False Test. People v. Morrison (1/25/2011, B221598) 191 CA4th 1551: Providing a false test to a probation officer to comply with court-ordered drug testing is a violation of PC 134.
SVPA: Psychotherapist-Patient Privilege. People v. Gonzales (1/27/2011, H032866) 192 CA4th 152: The institution of SVPA proceedings does not strip an individual of the right to privacy against the unjustified disclosure of information protected by the psychotherapist-patient privilege such that the dangerous-patient exception automatically applies.
Inconsistent Verdict. People v. Miranda (1/31/2011, B217708) 192 CA4th 398: As long as a conviction is supported by substantial evidence, an inconsistent verdict on an enhancement will not require reversal.
Miranda Invoked When Defendant Responded “I’m Doing My Right.” People v. Manzo (1/31/2011, D055671) 192 CA4th 366: While invocation of the right to remain silent must be unambiguous, a person is not required to use specific words or technical terms to do so. The trial court erred in admitting statements he made to police after he told them “I’m doing my right” in response to Miranda admonitions.
U.S. Supreme Court
(January 1-31, 2011)
IAC At Plea Bargaining: Failure To Challenge Admissibility Of Confession. Premo v. Moore (1/19/2011, No. 09-658) ____ US ____ [178 LEd. 2d 649; 131 SCt 733]: State court’s conclusion that defense counsel did not provide ineffective assistance was not an unreasonable application of Strickland v. Washington (1984) 466 US 668.
Federal Habeas: Deference To State’s Summary Denial. Harrington v. Richter (1/19/2011, No. 09-587) ____ US ____ [178 LEd2d 624; 131 SCt 770]: Because AEDPA limits the power of a federal court to grant habeas relief on a claim which has been adjudicated by a state court “on the merits,” it requires deference to a state court’s summary denial of a petitioner’s claim.
IAC: Consultation With Experts – No Obligation To Pursue A Fruitless Investigation. Harrington v. Richter (1/19/2011, No. 09-587) ____ US ____ [178 LEd2d 624; 131 SCt 770]: “An attorney need not pursue an investigation that would be fruitless, much less one that might be harmful to the defense.”