CALIFORNIA CASE LAW UPDATE – Selected California Cases
California Supreme Court (July 1 – July 31, 2008)
People v. Riggs (7/10/2008, S043187) 44 C4th 248: The defense-provided discovery is untimely. There was a CALJIC which said that the jury could find consciousness of guilt from a defense discovery violation. Several cases (see, e.g., Bell, 118 CA4th 249) held that this instruction was error, because it punished the defendant for errors by his counsel, and because finding guilt based solely on a discovery violation was wrong. The California Supreme Court does not disapprove those cases. The key fact here is that the defendant was pro per, so the violation actually was attributed to him personally. And the instruction the court gave the jury was just that the jury could discount the alibi witnesses whose disclosure was in fact delayed.
People v. Allen (7/28/2008, S148949) 44 C4th 843: A defendant in a sexually violent predator proceeding has a state and federal constitutional right to testify despite counsel’s decision that he or she should not testify. The denial of the right to testify is subject to harmless error analysis under Chapman v. California (67) 386 US 18.
People v. Wilson (7/28/2008, S089623) 44 C4th 758: Under People v. Cleveland (2001, 25 C4th 466), a juror can be excused only on a showing of a demonstrable reality that the juror was refusing to deliberate or prejudged the case or wouldn’t follow the instructions.
Grants Of Review:
People v. McKee REV GTD (7/9/2008, 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?
People v. Spillman REV GTD (7/16/2008, S163791) 2008 Cal. App. Unpub. LEXIS 3446: Briefing deferred pending decision in People v. Chun REV GTD (12/19/2007, S157601) 155 CA4th 170, which presents the following issue: Does the offense of discharging a firearm at an occupied vehicle in violation of PC 246 merge with a resulting homicide under People v. Ireland (1969) 70 C2d 522, if there is no admissible evidence of an independent and collateral criminal purpose other than to commit an assault?
People v. Lessie REV GTD (7/23/2008, S163453) 161 CA4th 1085: Is a minor’s request during police interrogation to speak to a parent an invocation of the privilege against self-incrimination that renders statements made after the request inadmissible?
People v. Concha REV GTD (7/30/2008, S163811) 160 CA4th 1441, mod. 161 CA4th 988a: Did the trial court err in allowing the jury to return verdicts of first degree murder when the case was tried on a theory of provocative act murder? Compare People v. Concha (2008) 160 CA4th 1441 at pages 1457 through 1461, and pages 1463 through 1465.
In re Gay, S130263. Original proceeding. In this case, which is related to the automatic appeal in People v. Gay (2008) 42 C4th 1195, the court issued an order to show cause limited to claims why petitioner is not entitled to relief (1) on the ground of trial counsel’s conflict of interest that prejudicially affected his representation at the guilt phase of petitioner’s trial, and (2) on the ground of trial counsel’s failure to adequately investigate and present evidence at the guilt phase tending to show that petitioner did not participate in the murder of the officer.
People v. Jacinto REV GTD (7/30/2008, S164011) 162 CA4th 373: Was defendant denied his constitutional rights to compulsory process and due process when the sheriff’s department released a subpoenaed defense witness to federal immigration authorities for deportation prior to defendant’s trial?
The following cases were transferred for reconsideration in light of People v. Gonzalez (2008) 43 C4th 1118:
People v. Ybarra REV GTD (S152984, 8/15/2007) 149 CA4th 1175
People v. Warner REV GTD (11/28/2007, S157246) 155 CA4th 57
People v. Sun REV GTD (3/12/2008, S159495) 157 CA4th 277
People v. McFearson REV GTD (4/9/2008, S160601) 158 CA4th 810
Review in the following case was dismissed in light of People v. Nelson (2008) 43 C4th 1242:
People v. Boysen REV GTD (10/17/2007, S155417) 152 CA4th 1409. The opinion of the Court of Appeal, originally published at 152 CA4th 1409, was ordered republished.
California Courts of Appeal (July 1 – July 31, 2008)
People v. Picklesimer (7/2/2008, C056385) 164 CA4th 723: The ruling in People v. Hofsheier (2006) 37 C4th 1185. Hofsheier’s ruling that imposition of sex offender registration requirement is discretionary, rather than mandatory, where the triggering offense is oral copulation of a minor does not apply to a defendant whose conviction was final prior to the high court’s ruling.
People v. Miller (7/2/2008, B201134) 164 CA4th 653: (1) The defendant left scene of vehicle collision and drove her car on a beach bicycle path, colliding with and seriously injuring a pedestrian while ignoring a fire department employee following her in an attempt to pull her over. The trial court instructed the jury on the elements of PC 245, which includes the requirement that the defendant must have been aware of facts that would lead a reasonable person to realize that physical force would be applied to another as a direct, natural, and probable result of act. (See CALJIC 9.00; CC 860) However, in response to question by jury, the court instructed them, without objection by counsel, that “there is no ‘awareness’ element.” The error was not harmless where the jury was focused on the very element the court told it to disregard. (2) The defendant’s conviction for evading a peace officer under VC 2800.3 was not supported by substantial evidence where the prosecution failed to show the fire department employee’s “primary duty” was “enforcement of the law.”
People v. Johnson (7/3/2008, C052747) 164 CA4th 731: As with CJ 2.50.01, CALCRIM 852, the standard instruction allowing jury to consider evidence of uncharged incidents of domestic violence as bearing on whether the defendant was predisposed towards committing such violence and was likely to have committed the charged crime, as permitted by EC 1109, does not deprive the defendant of due process of law under either the older or newer version of the instruction. (See People v. Reliford (2003) 29 C4th 1007, 1012-1016.)
People v. Stallworth (7/1/2008, B198111) 164 CA4th 1079: CALCRIM 1401 concerning a felony committed for the benefit of a criminal street gang, is not defective by reason of the omission of the word “specific” preceding “intent” in explaining that statute requires proof of defendant’s intent to aid street gang. Additionally, CALCRIM 401, pertaining to mere presence at the scene is not enough to find that the defendant was an aider and abettor to the offense is not erroneous when read as a whole.
People v. Stallworth (7/1/2008, B198111) 164 CA4th 1079: When one defendant’s statement implicates the other, an Aranda (63 C2d 518)/Bruton (391 US 123) issue arises. One possible fix is redaction of the statement to avoid implicating the co-defendant. Here, that fix resulted in admission of Stallworth’s statement minus references to the co-defendant. The problem is that the resulting statement was inconsistent with the rest of the evidence, and made it appear that Stallworth was lying.
People v. Steele (7/15/2008, C053662) 164 CA4th 1195: “Present ability,” a requisite element of assault, is defined as the attainment of the means and location to strike immediately. The victim, appellant’s on-again off-again girlfriend, testified that during the single, continuous incident, appellant repeatedly threatened to kill her by various means, including threatening to light the oven gas that had accumulated in the trailer. As to this threat, the victim testified that she could smell the gas, but that when appellant lit his lighter, nothing happened. At trial, there was no expert testimony as to the effect of striking a lighter near gas. The appellate court reversed the jury conviction for assault likely to cause great bodily injury, which was based on appellant turning on the gas stove and telling the victim he wanted to blow them up. Although the victim smelled gas, there was no substantial evidence that the gas was sufficiently volatile or concentrated to ignite. (See People v. Valdez (85) 175 CA3d 103.)
People v. Turk (7/17/08, D049923) 164 CA4th 1361: Trial court was not required to instruct the jury sua sponte regarding involuntary manslaughter stemming from his voluntary intoxication, because the defendant failed to identify any evidence from which the jury could have found he committed the lesser offense of involuntary manslaughter, but not the greater offense of murder. (People v. Halvorsen (2007) 42 C4th 379, 418 [a sua sponte instruction is necessary when there is evidence that the unconsciousness is based on voluntary intoxication]; see also People v. Ochoa (98) 19 C4th 353; CALCRIM 626.)
People v. Monjaras (7/21/2008, C055746) 164 CA4th 1432: Defendant’s display of an object which appeared to be a gun was sufficient to support a firearm-use enhancement.
People v. Jimenez (7/22/2008, F052723) 165 CA4th 75: Reversal was required where the chain of custody of a DNA sample was not adequately established.
People v. Perez (7/21/2008, D051221) 164 CA4th 1462: Occasional care of a child meets the requirement of “care and custody” for purposes of the child endangerment statute.
People v. Reyes (7/28/2008, B186285) 165 CA4th 426: A co-defendant’s plea agreement requiring him to testify fully and truthfully at appellant’s proceeding, in exchange for the promised benefit, does not deny appellant a fair trial.
People v. Fiu (7/28/2008, A112738) 165 CA4th 360 [modified at 2008 Cal. App. LEXIS 1332]: Trial court erred in failing to instruct sua sponte that where the defendant was charged with conspiracy, presents substantial evidence of withdrawal, the burden is on the prosecution to prove beyond a reasonable doubt that the defendant did not effectively withdraw.
In re Mathew A. (7/29/2008, B200559) 165 CA4th 537: Minor’s admission that he stole items from an adjoining apartment and his admitted consumption of the victim’s food created a reasonable inference that he entered the apartment with the intent to steal, supporting finding that he committed burglary and not merely vandalism. (See People v. Leanna W. (2004) 120 CA4th 735, 741 [theft of property following entry may create a reasonable inference that the intent to steal existed a the moment of entry].)
People v. Sutton (7/30/2008, B195337) 165 CA4th 646: Good cause existed to continue trial of jointly charged defendants where one counsel is engaged in another trial.
People v. Windus (7/30/2008, B196483) 165 CA4th 634: Trial court erred in disallowing the “compassionate use” defense to a charge of possession of marijuana for sale where the defendant established a sufficient evidentiary basis for the defense by showing he had the requisite medical recommendation prior to his arrest and that his doctor opined that the pound and a half of marijuana the defendant possessed was an amount commensurate with his personal medical needs. The defendant was not required to return to the doctor after a period of time to obtain a new recommendation, nor was he required to obtain a specific recommendation as to the amount of marijuana he needed to relieve his condition. Where the evidence was undisputed that the defendant assumed responsibility for another person’s medical need for marijuana, but provided no other services, the defendant could not offer a compassionate use defense based on a claim he was that person’s “primary caregiver.” (See People v. Mower (2002) 28 C4th 457, 475.)
People v. Osorio (7/30/2008, G036221) 165 CA4th 603: Trial court did not err, within the meaning of Crawford v. Washington (2004) 541 US 36, in admitting the victim’s out-of-court statements describing attacker to a paramedic and a police officer at crime scene while bleeding and in state of shock did not violate defendant’s Sixth Amendment right to confront witnesses because victim’s statements, made in the midst of an ongoing emergency, were nontestimonial. The victim’s inconsistent out-of-court description of attacker was admissible under EC 1202 to partially impeach victim’s prior descriptions. The court refused to follow a contrary opinion in People v. Beyea (74) 38 CAd 176, which held that EC 1202 did not allow a prosecutor to introduce a hearsay statement and then use a prior inconsistent statement to impeach part of the hearsay statement.
People v. Pearson (7/30/2008, B198805) 165 CA4th 740: Appellant was estopped from alleging double jeopardy where partial acquittal was obtained by concealing the victim-witness.
People v. Weeks (7/31/2008, B199849) 165 CA4th 882: The trial court’s Faretta error did not require reversal.
People v. Cuellar (7/31/2008, C056855) 165 CA4th 833: Defendant who grabbed back check from store clerk was guilty of grand theft from the person. The fictitious check had intrinsic value as a negotiable instrument that, if legally drawn, would entitle its holder to payment on demand. Thus, it was sufficient to support the conviction.
People v. Phomphakdy (7/31/2008, C056881) 165 CA4th 857: Appellant was prejudiced by the application of an unconstitutional provision of the Medical Marijuana Program Act.
People v. Manning (7/31/2008, E042230) 165 CA4th 870: Evidence of prior sexual offenses against a co-worker was properly admitted in trial for battery on an institutionalized victim. Manning was charged with battery on an institutionalized person in violation of PC 243.4(b), for fondling patients in the hospital where he worked.
9th Circuit Court of Appeals
Mejia v. Garcia (7/25/2008, 9th Cir. No. 06-16460) 2008 U.S. App. LEXIS 15933: CALJIC 2.50.01 and 2.50.1, permitting the jury to consider defendant’s prior sexual offense, as proved by a preponderance of the evidence, to determine whether defendant committed the charged sexual offenses, do not apply to charged non-sexual offenses. In 1999, a California jury convicted appellant of numerous sexual offenses, as well as kidnapping, assault with a firearm, and assault with a deadly weapon. At trial, pursuant to PC 1108 and 352, the prosecution introduced evidence of appellant’s acts of uncharged sexual misconduct. The jury was instructed in accord with CALJIC 2.50.01 and 2.50.1, which stated that the uncharged acts could be considered in its determination of the evidence, and that the prosecution had the burden of proving that appellant committed the uncharged acts by a preponderance of the evidence. Appellant argued that the language of 2.50.01, “If you find that the defendant had this disposition [i.e., to commit similar acts because of the commission of the uncharged acts], you may … infer that he was likely to commit and did commit the crime or crimes of which he is accused,” was unconstitutional as it could be read to apply to the non-sexual offenses and, therefore, lessened the prosecution’s burden of proof beyond a reasonable doubt as to the non-sexual offenses. Rejecting this argument, the court agreed with the government’s position that 2.50.01, is ambiguous as to its implications with respect to the non-sexual offenses, and, therefore, a harmless error analysis is appropriate. The court held that under this analysis there was not a reasonable likelihood that the jury applied the instruction in an unconstitutional manner.