CALIFORNIA CASE LAW UPDATE – Selected California Cases
California Supreme Court (July 1, 2006-July 31, 2006)
People v. Reed (7/3/2006, S136345) 38 C4th 1224: Defendant may be convicted of being a felon in possession of a firearm (PC 12021(a)(1)), carrying a concealed firearm (PC 12025(a)), and carrying a loaded firearm while in a public place (PC 21031(a)), all arising out of the same act; PC 954 did not prevent the defendant’s conviction of all three charges; courts should consider the statutory elements and accusatory pleading in deciding whether a defendant received notice, and therefore may be convicted, of an “uncharged” crime but only the statutory elements in deciding whether a defendant may be convicted of multiple “charged” crimes.
People v. Wilson (7/6/2006, S130157) 38 C4th 1237: Evidence regarding the odds of a particular DNA pattern appearing in a particular population group is not rendered inadmissible solely due to the absence of independent evidence that the perpetrator was a member of that group since the frequencies with which the matched profile occurs in various racial groups to which the perpetrator might belong are relevant for the purpose of ascertaining the rarity of the profile.
People v. Demetrulias (7/10/2006, S046733) 2006 Cal. LEXIS:
1. Similarities between the charged homicide of one victim and uncharged assault on another supported admission of evidence of latter crime to show “intent, motive, common design or plan” (see EC 12101(b)), even though the similarities were not sufficiently distinctive to make the evidence of the uncharged crime admissible on the issue of identity of person who committed homicide, but it was sufficiently similar on the issue of intent (see People v. Ewoldt (1994) 7 C4th 380, 402);
2. Evidence was not unduly prejudicial or confusing where judge instructed jury, both at the time of admission and in closing instructions, as to the limited purpose for which the evidence was to be used;
3. Probative value of other crimes evidence on the issue of motive does not necessarily depend on similarities between the charged and uncharged crimes, so long as the offenses have a direct logical nexus. (People v. Daniels (1991) 52 Cd 815, 857.)
4. While EC 353(a) allows a judgment to be reversed because of an erroneous admission of evidence or a motion to strike it when timely made and clear as to the specific ground of objection, defendant’s failure to make a timely and specific objection on the ground asserted on appeal makes that ground not cognizable. (People v. Partida (2005) 37 C4th 428, 433 434.)
5. Appellate courts have the authority to recognize non-statutory exceptions to the hearsay rule, but must do so cautiously.
People v. Cottle (7/27/2006, S126550) 2006 Cal. LEXIS 9075: Under Code of CCP190 et seq. court does not have authority to reopen jury selection after jury has been impaneled but before alternates are sworn. PC 1068, upon which People v. Armendariz (1984) 37 C3d 573 relied in concluding otherwise, has been repealed.
Grants Of Review:
People v. Lopez (7/19/2006, S143615)138 CA4th 674: Did prosecutor commit misconduct during closing argument by appealing to the jury’s passions, prejudices, and sympathy; alluding to facts outside the record; and expression of personal belief in defendant’s guilt? Arguing guilt by association constituted misconduct as did prosecutor’s asking the jurors to stand in the shoes of the victim witnesses.
McQuarters v. Superior Court (7/26/2006, S143777) 138 CA4th 1357: briefing deferred pending decision in People v. Allen (5/17/2006, S141913) 136 CA4th 644: Does a trial court have jurisdiction to extend the commitment of a mentally disordered offender if the petition to extend the commitment was not filed until after the prior commitment had expired (PC 2972(e))?
In re Michael R. (7/26/2006, S143293) unpublished below, F048706,briefing deferred pending decision in People v. Kelly (6/8/2005, S133114) 2005 Cal. App. Unpub. LEXIS 2293: (1) Does article VI, section 14, of the California Constitution, which provides that “[d]ecisions of the Supreme Court and courts of appeal that determine causes shall be in writing with reasons stated,” set the same standard for a criminal appeal in which defense counsel files a brief pursuant to People v. Wende (1979) 25 C3d 436 raising no issue and defendant submits written argument on his own behalf as the standard that applies to a criminal appeal in which one or more specific claims of error is raised by defense counsel? (2) Did the Court of Appeal opinion in this case satisfy the requirements of article VI, section 14?
People v. Sanchez (7/26/2006, S143771)138 CA4th 1085 briefing deferred pending decision in People v. Cage (10/13/2004, S127344) 120 CA4th 770: Are all statements made by an ostensible crime victim to a police officer in response to general investigative questioning “testimonial hearsay” within the meaning of Crawford v. Washington (2004) 541 US 36, and inadmissible in the absence of an opportunity to cross-examine the declarant, or does “testimonial hearsay” include only statements made in response to a formal interview at a police station?
California Courts of Appeal (June 29, 2006-July 31, 2006)
People v. Mason (6/29/2006, B180724) 140 CA4th 1190: Moving a car for a distance of only one foot is sufficient asportation to support conviction for carjacking (PC 215(a)).
People v. Schoppe-Rico (6/29/2006, A104363) 140 CA4th 1370: Street gang firearm possession statute (PC 12025(a), (b)(3), PC 12031(a)(2)(C)), do not require proof that charged firearm possession was connected with the underlying gang participation. It does require proof that defendant is an active participant in street gang, however.
People v. Karapetyan 6/29/2006, C048289) 140 CA4th 1172: Jury could infer from circumstances of the fight that victim’s death was foreseeable consequence of assault. (See People v. Nguyen (1993) 21 CA4th 518, 531.)
People v. Mason (6/29/2006, B180724) 140 CA4th 1190:
1. Trial court properly refused to dismiss carjacking charge (violent felony) under PC 1387(a) (the so-called two-dismissal rule) because victim’s failure to appear was due to excusable neglect.
2. The gun charge (PC 12021.1(a)), which was not a violent felony, should have been dismissed because it is not subject to the excusable-neglect exception.
Craft v. Superior Court (6/30/2006, G036155) 140 CA4th 1533: Trial court concluded defendant should be committed to state hospital for treatment but, for reasons never explained in the record, court failed to issue commitment and transportation order. No substantial evidence shown below to support trial court’s finding that defendant suffered no prejudice from the delay and, on remand, court must weigh the prejudice against any reasons prosecution may offer to justify delay.
In re Eduardo M. (7/5/2006, B186047) 140 CA4th 1351: Defendant minor convicted of aiding and abetting two felony firearm assaults cannot also be convicted of being an accessory to those felonies solely on the basis of immediate flight from the scene and later denials of his own involvement, even if that conduct incidentally helped the principal escape.
Williams v. Superior Court (7/7/2006, G036362) 140 CA4th 1422 Defendant has the right to seek to file privileged or confidential information in support of Pitchess motion under seal, even from the custodian of records. “[W]e have found no reason to doubt the ability of the trial courts to sort through such information and determine what is actually privileged, what should remain confidential and what should not; and we have found nothing in the history of Pitchess, discovery law in general, or our own experience to persuade us the intervention of a third party such as a city attorney is necessary to protect the privacy rights of the police officers.” (This court’s prior decision (People v. Garcia (2004) 120 CA4th 1252) regarding this issue is presently before the California Supreme Court (review granted Sept. 22, 2004).
In re Smith (7/10/2006, B184548) 141 CA4th 217: Fact that conviction that brought petitioner into the SVP evaluation and commitment system was invalidated after the SVP commitment did not preclude court from continuing with SVP proceedings that had already begun.
People v. McCann (7/13/2006, B184262) 141 CA4th 347:PC 851.8 provides for the court to make a finding of factual innocence and permits such a finding where no charge is ever filed or if the defendant is acquitted. In McCann, the defendant was convicted, appealed, and the case was reversed on appeal for insufficiency of the evidence, then dismissed by the trial court. McCann holds that equal protection requires the availability of factual innocence in this context as well.
People v. Anzalone (7/13/2006, D044138) 2006 Cal. App. LEXIS 1076:
1. Consistent with People v. Chinchilla (1997) 52 CA4th 683, 690, that where the defendant fired a single bullet into a slowly moving vehicle, narrowly missing a mother and her infant son, he was properly convicted on two counts of attempted murder; court was not required to instruct the jury that to find the defendant guilty of a count of attempted murder, they must find he harbored the specific intent to kill the person named as the victim in that count.
2. Defense counsel was prejudicially ineffective in failing to object to prosecutor’s misstatement of law as to intent required for attempted murder conviction where misstatement allowed jury to find defendant guilty of multiple counts of attempted murder based on mistaken impression that defendant’s act of firing indiscriminately in direction of a group of men made him guilty of attempting to kill all of them.
People v. Estrada (7/14/2006, C047785) 2006 Cal. App. LEXIS 1078: Judge may tell the jurors during voir dire that they have no legal authority to engage in jury nullification and to solicit their assurances that, if chosen to serve, they would follow the law as stated to them by the court and not substitute their own views of what the law should be. (See People v. Williams (2001) 25 C4th 441 [jurors are required to determine the facts and render a verdict in accordance with the court’s instructions on the law]; pursuant to PC 1089, a juror who refuses to do so may be removed from the jury by the court. The juror has the power to use jury nullification, but not necessarily the right to use it].)
People v. Anderson (7/18/2006, A108482) 141 CA4th 430: (1) No right to a settled statement re: contents of video and audiotapes of defendant’s police interrogation since such statements are not part of the “oral proceedings” of the court, (CRC, Rule 32.3), even if they were introduced as evidence and played at trial; (2) “Because second degree murder and voluntary manslaughter are lesser included offenses of the offense charged against defendant in the amended information, defendant was on notice that she might be convicted of that crime or any of its lesser included offenses-and, by the same token, that she could anticipate instructions on these lesser offenses if they were supported by substantial evidence.”
People v. Celis (7/18/2006, B182346) 2006 Cal. App. LEXIS 1084:
1. A person may aid and abet a murder after fatal blow is struck as long as aiding and abetting occurs before victim dies. Murder is not complete when fatal blow is struck even if victim lingers for substantial period of time.
2. The court did not err in failing to instruct jury sua sponte on defense of mistake of fact where defendant never mentioned mistake of fact as defense theory. (See also People v. Maury (2003) 30 Cal.4th 342, 242 [the court must instruct sua sponte where it appears that the defendant is relying on the defense, and it is not inconsistent with the defense theory].) [But see FORECITE PG V(A)(6)(1) [sua sponte duty to instruct on defense if supported by substantial evidence].
3. When court in response to jury’s request instructed it that “directly and actively” committing crime meant “actually performing an act or acts which constitute a crime,” trial court did not err in failing to also instruct them sua sponte on proximate cause where they never indicated desire to be informed on causation, and causation was not an issue in case.
People v. Celis (7/18/2006, B182346) 2006 Cal. App. LEXIS 1084: Defendant not entitled to have jury informed that witness expected LWOP sentence and that would have made him more credible. As prosecutor pointed out, the witness actually had “nothing to lose” by lying.
People v. Davis (7/19/2006, B184264) 2006 Cal. App. LEXIS 1088: HS11353.6 (offense within 1,000 feet of elementary school) enhancement not applicable to the garage of a private residence that was not accessible to the general public. (See also People v. Jimenez (1995) 33 CA4th 54, 60; People v. Townsend (1998) 62 CA4th 1390 1395 1397; People v. Todd (1994) 30 CA4th 1724, 1729 [the enhancement does not apply to drug transactions that take place solely within the confines of a private residence].)
People v. Chance (7/20/2005, C048825) 2006 Cal. App. LEXIS 1097: No assault where defendant pointed gun at a place where he thought the officer would appear but not at the officer.
People v. Lamas (7/20/2006, G035001) 2006 Cal. App. LEXIS 1115 [PC 186.22 does not require “a separate felony” in addition to an underlying gang-related felony; requiring a separate felony would defeat the Legislature’s purpose of making gang participation itself a substantive crime (see also People v. Castaneda (2000) 23 C4th 743)].
People v. Queen (7/25/2006, C046852) 2006 Cal. App. LEXIS 1145: PC 12020(a) (possession of a concealable deadly weapon) and PC 4502(a) (possession of a deadly weapon while in custody) are not necessarily included in each other (each one has a different element) and defendant may be charged and convicted of both; sentencing on one must be stayed, though.
People. v. Concepcion (7/26/2006, E036353) 2006 Cal. App. LEXIS 1150 [Structural error to continue trial without defendant who had escaped but was apprehended during the trial].