CALIFORNIA CASE LAW UPDATE – Selected California Cases
California Supreme Court (July 1-31, 2010)
Witness Unavailability Due To Deportation. People v. Herrera (7/1/2010, S171895) 49 C4th 613: If a witness is out of the country and is immune from the court’s process because he is in a country for which no treaty exists for the production of witnesses for trials in the United States, the prosecution has “fulfilled its obligations of good faith and due diligence” in demonstrating witness unavailability.
Delay For The Client Is Permitted Even Over The Client’s Objection. People v. Lomax (7/1/2010, S057321) 49 C4th 530: “If counsel seeks reasonable time to prepare a defendant’s case, and the delay is for the defendant’s benefit, a continuance over the defendant’s objection is justified.”
Death Penalty Issues Presented And Rejected. People v. Tate (7/8/2010, S031641) 49 C4th 635: Restrictions on voir dire; excusal of jurors for cause; admission of statements; alleged prosecutorial misconduct (making faces, among other things); jury instructions; challenges to California death penalty law.
Death Penalty Issues. People v. Alexander (7/15/2010, S053228) 49 C4th 846: Issues considered and rejected: refusal to appoint counsel who had been appointed for the preliminary hearing under law of the case doctrine (issue resolved in mandate proceedings) and on the merits; denial of constitutional speedy trial motion; denial of motion to bar purportedly hypnotized witness’ testimony; prosecution’s interception of conversation between defendant, his mother, and a defense investigator (no evidence statements were used); admission of prior identification (not impermissibly suggestive); admission of blood tests on defendant’s jacket; admission of refusal to stand in lineup; admission of recorded calls (any error harmless); admission of prior serious offense (court gave limiting instruction); sufficiency of evidence; jury instructions; refusal of juror to participate and court’s response; denial of new trial motion; modification motion; constitutionality of death penalty law; cumulative error.
Death Penalty Issues. People v. Solomon (7/15/2020, S029011) 49 C4th 792: Defendant’s conviction for murdering several prostitutes and assaulting other women affirmed. Evidence of premeditation and deliberation was sufficient; post-arrest statement properly admitted; standard jury instructions properly given; giving jury instruction on juror notes proper; excusal of prospective jurors for cause not error; photographs of dead victims properly admitted; challenges to death penalty law rejected.
Pitchess Discovery. Galindo v. Superior Court (7/22/2010, S11347) 2010 Cal. LEXIS 7064: Although a defendant may pursue discovery through a Pitchess motion prior to the preliminary hearing and, within the discretion of the magistrate, use the results of the motion at the preliminary hearing, he is not necessarily entitled to a continuance of the preliminary hearing to pursue the motion.
Grants Of Review:
People v. Milward REV GTD (7/14/2010, S182263) 182 CA4th 1477: (1) Is assault with a deadly weapon (PC 245(a)(1)) a necessarily included offense of assault by a life prisoner with a deadly weapon (PC 4500)? (2) Was People v. Noah (1971) 5 C3d 469 binding on the Court of Appeal unless and until overruled by this court?
People v. Turnage REV GTD (7/14/2010, S182598) 183 CA4th 458: (1) Does PC 148.1(d), violate equal protection principles because a violation is punishable as an alternative felony-misdemeanor without a finding that a person was placed in sustained fear? (See PC 11418.1.) (2) If so, what is the proper remedy?
Wilson v. Superior Court REV GTD (7/14/2010, S182340) 182 CA4th 145: Briefing deferred pending decision in Moore v. Superior Court REV GTD (9/17/2009, S174633) 174 CA4th 856 which presents the following issue: Can the trial in a commitment proceeding under the Sexually Violent Predator Act be held while the defendant is incompetent?
People v. Dowl REV GTD (7/21/2010, S18262) 183 CA4th 702: If the defendant raises a medical marijuana defense in a prosecution for possession of marijuana for sale, must the People call an expert who has experience in distinguishing lawful medical possession from unlawful possession?
People v. Tepetitla-Cruz REV GTD (7/28/2010, S182843) 183 CA4th 1451: Is the victim’s consent a defense to a charge of committing lewd acts with a child under 14 years of age by “use of force, violence, duress, menace, or fear of immediate and unlawful bodily injury” (PC 288(b))?
People v. Anderson REV GTD (10/14/2009, S175351) 2009 Cal. App. Unpub. LEXIS 5473: The court requested the parties to file supplemental letter briefs directed to the merits of the Court of Appeal’s conclusion that “[Penal Code] section 211’s requirement of the use of force or fear in accomplishing the taking of the property or in retaining the property during asportation or escape in effect requires a purposeful or willful act involving a general intent to use force or fear to initially take property or thereafter retain the stolen property during asportation or escape. Absent that purposeful or willful use of force, a robbery is not committed.” (Filed opn., p.18.) The court also requested the parties to explain whether the jury was informed that the prosecution was required to prove defendant intended to use force against the victim or to cause the victim to experience fear.
The following case was transferred for reconsideration in light of People v. Sutton (2010) 48 C4th 533:
Smith v. Superior Court REV GTD (12/23/2009, S177406) 178 CA4th 373.
California Courts of Appeal (July 1-31, 2010)
Criminal Threats: No Specific Timeline. People v. Wilson (7/13/2010, F056965) 186 CA4th 789: The immediacy element of PC 422 (criminal threats) does not place a specific timeline on when a specific and unconditional threat must be executed, and does not require an immediate ability to carry out the threat.
Gang Offense: Multiple Punishments. People v. Mesa (7/13/2010, D056280) 186 CA4th 773: Because PC 186.22(a) (crime of gang participation) involves distinct criminal objectives and different impacts from the underlying offense, punishment for both offenses is not a violation of the proscription against multiple punishment under PC 654.
Sex Offender Registration: Dismissal Of Predicate Offense. In re Watford (7/9/2010, C062550) 186 CA4th 684: Dismissal of the predicate PC 290 offense after a person has been convicted of failure to register is no defense to the registration conviction which remains in effect. In 1986, petitioner was convicted in Massachusetts of an offense requiring registration pursuant to PC 290.
Infraction: Trial Rights. People v. DiSandro (7/7/2010, E049726) 186 CA4th 593: A person charged with an infraction has a statutory right to a court trial and a right to confront and cross examine witnesses, and the court cannot conduct a trial in the person’s absence unless the absence is knowing and voluntary.
Burglary By Instrument. People v. Glazier (7/19/2010, B214200) 2010 Cal. App. LEXIS 1195: The burglary-by-instrument doctrine applies when a tool is used to enter a building either as a prelude to physical entry, or to remove property, or to commit another felony.
Disclosure Of Material Witness. Davis v. Superior Court (7/22/2010, B216345) 2010 Cal. App. LEXIS 1207: Under EC 1041, disclosure of the identity of a material witness is not mandatory. Instead it depends on whether the defendant makes an adequate showing that the informant can give exculpatory evidence.
9th Circuit Court Of Appeals
(July 1-31, 2010)
Self Representation: Eccentric But Non-Disruptive Behavior. U.S. v. Johnson et al. (7/6/2010, 9th Cir. No. 08-10147) 2010 U.S. App. LEXIS 13719: When a pro se defendant exhibits eccentric courtroom behavior, but that behavior is not disruptive or defiant, the trial court is not required to revoke self-representation, nor would it be justified in doing so.