CALIFORNIA CASE LAW UPDATE – Selected California Cases
California Supreme Court (July 1-31, 2009)
People v. Nguyen (7/2/2009, S154847) 46 C4th 1007: Three Strikes – Juvenile Priors Are Valid: U.S. Constitution allows use of prior juvenile adjudication to increase maximum sentence for adult felony based upon prior juvenile adjudication even though juveniles are denied jury trials. Kennard dissents.
People v. Rogers (7/6/2009, S064337) 46 C4th 1136: Conviction for first and second degree murders and sentence to death is affirmed where: 1) trial court’s voir dire on the death penalty was adequate and did not violate his due process rights, and the warrantless entries into defendant’s house were justified by exigent circumstances; 2) witness’s testimony describing defendant’s nonverbal conduct was properly admitted, and the court did not err in admitting victims’ photographs and autopsy photographs; 3) the court did not err in failing to give the jury an instruction on voluntary manslaughter and in instructing the jury on CALJIC 2.06; 4) any conceivable error in the substitution of judges upon the trial judge’s temporary absence was harmless beyond a reasonable doubt; 5) the death sentence is not authorized for second degree murder, and thus the judgment must be modified to reflect the appropriate sentence; 6) the court properly refused to give a lingering doubt instruction and did not instruct the jury with an incorrect version of CALJIC 8.85 or 8.88; and 7) California’s death penalty statute is not unconstitutional.
People v. McNeal (7/9/2009, S157565) 46 C 4th 1183: Drunk Driving – Partition Ratio Evidence In Generic DUI: Competent evidence about partition ratio variability, either in the general population or in the particular defendant (“general” and “personal” partition ratio evidence) may be admitted to defend against a “generic” DUI charge (generic DUI prohibits driving “under the influence, VC 23152(a)). The evidence is relevant to rebut the presumption but not to remove it altogether.
People v. Traylor (7/13/2009, S157820) 46 C4th 1205: Held that where the prosecution initially file a felony complaint charging the defendant with vehicular manslaughter with gross negligence, which was then dismissed by a magistrate on grounds that there is sufficient evidence only to support a lesser included misdemeanor vehicular manslaughter, the subsequent filing of a second complaint containing the reduced misdemeanor charge, which was comprised of fewer than all the elements of the previously dismissed felony offense, is not barred by PC 1387(a). The court, analyzed the phrase “for the same offense”, within the meaning of Burris v. Superior Court (2005) 34 C4th 1012, and found that the misdemeanor and felony had different elements, therefore the charging of the misdemeanor did not violate PC 1387(a).
People v. Friend (7/20/2009, S027264): 2009 Cal. LEXIS 6426: Jury instructions on felony murder should avoid language suggesting that felony murder results in a conclusive presumption of malice.
People v. Anderson (7/23/2009, S152695) 2009 Cal. LEXIS 7479: Double Jeopardy – Retrial Of Penalty Allegation: Mistried penalty allegations may be retried without violating double jeopardy prohibition, and retrial need only encompass mistried enhancements and does not require retrial of entire case. Answers question not resolved in People v. Seel (2006) 34 C4th 535.
Porter v. Superior Court (7/23/2009, S152273) 2009 Cal. LEXIS 7480: Double Jeopardy – Retrial Of Dismissed Penalty Allegation: In companion case to People v. Anderson, above, court rules that penalty allegations dismissed by trial court following granting of new trial motion may be retried.
People v. Carrington (7/27/2009, S043628)2009 Cal. LEXIS 7722: Burglary – Entry Into ATM: Inserting a stolen ATM card into an ATM on building’s exterior not burglary. (People v. Davis (1998) 18 Cal.4th 712, 718-722.)
Grants Of Review:
People v. Ary REV GTD (7/29/2009, S173309) 173 CA4th 80: At a retrospective competency hearing, does the prosecution or the defendant bear the burden of proving competence by a preponderance of the evidence?
Lopez v. Superior Court REV GTD (7/29/2009,S172589) 173 CA4th 266: Can a person committed as a mentally disordered offender challenge that determination at the time of a petition to extend the commitment or can the question be litigated only at the time of the original certification?
California Courts of Appeal (July 1-31, 2009)
People v. Johndrow (7/1/2009, C055620) 175 CA4th 719: Sexually Violent Predators – Statutory Scheme Constitutional: Amendments to SVP Act, WI 6600 et seq. permitting indeterminate terms are constitutional. Court erred in not allowing defendant to testify against his counsel’s wishes, but error harmless beyond reasonable doubt. C.f., People v. Allen (2008) 44 C4th 843 [SVP defendant has constitutional right to testify against counsel’s wishes].
People v. Ramon (7/7/2009, F054603) 2009 Cal. App. LEXIS 1103: (1) Gang Expert: A gang expert’s opinion that a defendant committed a crime for the benefit of a gang, without sufficient facts to support such an opinion, is not substantial evidence to support a PC186.22(b)(1) gang enhancement. (2) Multiplicity: Multiple convictions under more than one provision of PC 12031(a) are not permitted for a single act of illegally carrying a loaded firearm. Appellant was convicted of both possession of a loaded firearm while a member of a criminal street gang (PC 12031(a)(2)(C)), and possession of a loaded firearm for which he was not the registered owner (PC 12031(a)(2)(F)). Appellant argued that only one of those two convictions was permitted in light of People v. Muhammad (2007) 157 CA4th 484, which reached a similar conclusion for stalking crimes under PC 646.9. The Court of Appeal agreed, holding that the provisions of section 12031, subdivision (a)(2) do not define separate offenses, but are merely alternative penalty provisions for the same offense defined by PC 12031(a)(1). Appellant violated PC 12031(a)(1) only once. Accordingly, the conviction under PC 12031(a)(2)(F) was vacated.
People v. Hernandez (7/10/2009, A119501) 175 CA4th 940: (1) Courtroom Security: Bailiff Behind Testifying Defendant: The presence of armed guards in the courtroom does not necessarily deprive a defendant of his due process right to a fair trial, such a determination must be made on a case-by-case basis. Absent any showing of need for an armed bailiff to escort defendant to the witness stand and remain behind him while defendant testified, such security precautions, which were not taken with any other witness, carried a grave risk of prejudice and was an abuse of trial court discretion, which was further exacerbated by trial court’s refusal to give a cautionary instruction, and as issue of defendant’s credibility was a major factor at trial, was prejudicial error. This issue falls within the bounds of Estelle v. Williams (1976) 425 US 501, 503-506, or Holbrook v. Flynn (1986) 475 US 560, 568 which hold that certain courtroom practices are prejudicial and deprive the defendant of a fair trial. (2) CALCRIM 3160: The trial court had a duty to instruct the jury sue sponte that a great bodily harm enhancement (CALCRIM 3160), within the meaning of PC 12022.7(a), had to be proved beyond a reasonable doubt in the same manner that it gives all other instructions (see People v. Sengpadychith (2001) 26 C4th 316, 326), so that instruction’s significance is not diminished.
People v. Hudson (7/14/2009, C059154) 175 CA4th 1025: CALCRIM 318, which informs the jury that it may reject in-court testimony if it determines inconsistent out-of-court statements to be true, does not improperly lessen the state’s burden of proof in violation of the federal constitutional rights to jury trial and due process because the instruction, by stating that the jury “may” use the out-of-court statements, does not require the jury to credit the earlier statements. Additionally, the instruction did not disallow the jury from using the evidence of a prior out-of-court statement as evidence that the information in that statement was false where the court instructed the jury with CALCRIM 226, which allows jury to accept or reject any part of a witness’s testimony, including past incomplete statements, and CALCRIM 220, which explains the prosecution’s burden to prove the defendant guilty beyond a reasonable doubt.
People v.Miller (7/15/2009, H032249) 175 CA4th 1109: Courtroom Security: Shackling: The trial court abused its discretion in denying defendant’s motion to be unshackled during trial absent any evidence on the record demonstrating defendant’s violence, threat of violence, or other nonconforming conduct. (See People v. McDaniel (2008) 159 CA4th 736, 744, 747, fn. 9.) Shackling was not harmless beyond a reasonable doubt where shackles were likely visible to the jury. The unnecessary shackling was an “affront to human dignity,” which can foment “disrespect for the entire judicial system,” and could have affected defendant’s ability to focus on proceedings or his demeanor, where the evidence of defendant’s guilt was not overwhelming. (Deck v. Missouri (2005) 544 US 622, 635). The fact that the defendant was a prison inmate, which jury would have inevitably learned, did not render shackling harmless in light of the visual, psychological, and emotional impact of seeing a defendant shackled and the natural tendency of jurors to wonder and perhaps worry about why shackles are necessary and whether defendant is a violent and dangerous criminal.
People v. Wagner (7/21/2009, E047167) 2009 Cal. App. LEXIS 1179: Trial court order dismissing the case against defendant is affirmed where: 1) trial court did not abuse its discretion in denying the request to continue the case beyond the time limit set forth in PC 1382 after finding no courtroom available in which to try the matter, and there was nothing in the record to support the People’s claim that the court congestion was caused by the trial court’s mismanagement or administrative policy; and 2) the People are foreclosed from refiling the charges in this case under PC 1238 (a)(8).