CALIFORNIA CASE LAW UPDATE – Selected California Cases
California Supreme Court (July 1-31, 2011)
Specific Versus General Statutes. People v. Murphy (7/7/2011, S180181) 52 C4th 81: When two criminal statutes may apply, the more specific one must be charged.
Change Of Venue. People v. Famalaro (7/7/2011, S064306) 52 C4th 1: A denial of a change of venue motion in a case with heavy media coverage may be predicated on the size of community with a large, diverse pool of potential jurors. The Supreme Court’s independent review of the record resulted in a finding that the panel was untainted by the publicity surrounding the case and no evidence that any juror held biases that the selection process failed to detect.
EC 1108: (1) Admissibility And (2) Instruction. People v. Loy (7/7/2011, S076175) 52 C4th 46: (1) Evidence Code section 1108 allows the sexual misconduct history to be considered for whatever light it might shed on issues, including the defense claim of mistaken identity, so long as there is weighing of prejudice versus the probative value. (2) The instruction on the other sex crimes evidence, CALJIC 2.50.01 (6th Ed. 1996), is not unconstitutional. The instruction allowed the jury to infer, based on the prior sex offenses, that appellant was “likely to commit and did commit the crime of which he’s accused.” (CALJIC no. 2.50.01 (6th Ed. 1996), emphasis added.)
Evidence Of Defendant’s White Supremacist Beliefs. People v. Bivert (7/11/2011, S099414) 52 C4th 96: There was no error in admitting evidence that the defendant was a White supremacist and racist even though his homicide victims were White.
In-Custody Percipient Witnesses And PC 1127a. People v. Bivert (7/11/2011, S099414) 52 C4th 96: An instruction based on PC 1127a must be given where there are in-custody informants, but not in-custody percipient witnesses. Note that PC 1111.5 has been enacted into law, effective 1/1/12, barring a conviction on the uncorroborated testimony of an in-custody informant.
Grants of Review
People v. Anzalone REV GTD (7/13/2011, S192536) 2011 Cal. App. Unpub. LEXIS 2009: (1) Did the trial court err by failing to obtain the jury’s oral assent to the verdicts, and if so, was the error structural and thus reversible per se, or subject to harmless error analysis? (2) If the latter, was the error prejudicial? (3) If the former, does double jeopardy bar retrial?
People v. Robinson REV GTD (7/13/2011, S193289) 194 CA4th 672: Briefing deferred pending decision in People v. Ahmed REV GTD (4/20/2011, S191020) 191 CA4th 1407, which presents the following issue: Does PC 654 apply to enhancements and thereby preclude imposition of enhancements for both personal use of a firearm and personal infliction of great bodily injury under circumstances involving domestic violence?
People v. Villatoro REV GTD (7/20/2011, S192531) 194 CA4th 241: Was the modification of CALJIC 1191, which told the jurors they could consider evidence of a charged offense in determining defendant’s propensity to commit the other charged offenses (see EC 1108), reversible error when the court also informed the jurors that all charged offenses must be proved beyond a reasonable doubt?
People v. Kelley REV GTD (7/20/2011, S193395) 2011 Cal. App. Unpub. LEXIS 2920 & People v. Shockman REV GTD (7/20/2011, S193189) 193 CA4th 1607: Briefing deferred pending decision in People v. Dungo REV GTD (12/2/2009, S176886) 176 CA4th 1388, People v. Gutierrez REV GTD (12/2/2009, S176620) 177 CA4th 654, People v. Lopez REV GTD (12/2/2009, S177046) 177 CA4th 202, and People v. Rutterschmidt REV GTD (12/2/2009, S176213) 176 CA4th 1047, which present issues concerning the right of confrontation under the Sixth Amendment when the results of forensic tests performed by a criminalist who does not testify at trial are admitted into evidence and how the decisions of the United States Supreme Court in Melendez-Diaz v. Massachusetts (2009) 557 US ___ [174 LEd2d 314; 129 SCt 2527], and Bullcoming v. New Mexico (6/23/2011, No. 09-10876) 564 US____ [180 LEd2d 610; 131 SCt2705], affect this court’s decision in People v. Geier (2007) 41 C4th 555.
The court requested the parties in the following appeals to file supplemental briefs addressing the significance, if any, of the recent decision of the United States Supreme Court in Bullcoming v. New Mexico (6/23/2011, No. 09-10876) 564 US____ [180 LEd2d 610; 131 SCt2705]:
People v. Dungo REV GTD (12/2/2009, S176886) 176 CA4th 1388
People v. Gutierrez REV GTD (12/2/2009, S176620) 177 CA4th 654
People v. Lopez REV GTD (12/2/2009, S177046) 177 CA4th 202
People v. Rutterschmidt REV GTD (12/2/2009, S176213) 176 CA4th 1047
California Courts of Appeal (July 1-31, 2011)
DUI: Expert Testimony Challenging Reliability Of Breath Test Devices. People v. Vangelder (7/1/2011, D059012) 197 CA4th 1: In a DUI trial, expert testimony may be admissible as relevant in both “per se DUI” and generic DUI offenses to challenge the validity of the design of the breath test device, its operation, and sampling method.
Double Jeopardy, Punishment Allegations, And Sending The Jury Back. People v. Carbajal (7/5/2011, B222615) 197 CA4th 32: Under PC 1161, when there is a verdict of conviction, the court may order reconsideration of a verdict if it appears that the jury may have mistaken the law, but once the jury has returned a “not true” finding on an enhancement, the court may not order reconsideration of the verdict but must order it be entered.
Estes Robbery And Theft By False Pretenses. People v. Williams (7/11/2011, B222845) 197 CA4th 339: A theft by false pretenses supports a charge of robbery when force is used to flee. The evidence supported an “Estes robbery.” (People v. Estes (1983) 147 CA3d 23.)
Conclusive Presumption. People v. Superior Court (Wright) (7/12/2011, B232709) 197 CA4th 511: A conclusive presumption may only apply when the criteria described in the presumption-creating statute is met.
Making Possession Of A Loaded Firearm In A Vehicle A Felony. People v. Jorge P. (7/14/2011, F060915) 197 CA4th 628: In order to elevate the offense of carrying a loaded firearm to a felony under PC 12031(a)(2)(C), there must be proof of felonious “conduct” separate from the act supporting a PC 12031(a)(1) allegation.
Grand Theft Based On Fraudulent Lease. People v. Bell (7/20/2011, B223803) 197 CA4th 822: Where renter uses false identification to qualify for lease and subsequently fails to pay rent, there is sufficient evidence of intent to permanently deprive the property owner of the leasehold interest, to sustain a grand theft conviction.
Second-Degree Murder: Speed Contest And Causation. People v. Canizalez (7/20/2011, B218515) 197 CA4th 832: Evidence supported the defendants’ convictions for second-degree murder based on the subjective awareness of the risk of death created by participating in a speed contest. It is proximate causation, not direct or actual causation, which together with the defendant’s mental state determines liability. (People v. Sanchez (2001) 26 C4th 834, 845 [just because the actual cause of death cannot be determined does not undermine the conviction].) The defendant’s act must be a substantial factor in producing the result of the crime. (People v. Scola (1976) 56 CA3d 723, 726-727 [the prosecution does not have to prove with certainty that the death would have occurred absent the defendant’s act].) Even though the defendant’s car did not hit the victim, and the other car did, the acts of both led directly to and were a proximate cause of the result. (People v. Kemp (1957) 150 CA2d 654, 659.)
Failure To Provide Financial Responsibility And Failure To Make A Demand. People v. Roldan (7/21/2011, B224633) 197 CA4th 920: A conviction for VC 16028 (failure to provide evidence of financial responsibility) is dependant in part on evidence that the officer requested or demanded proof of insurance from defendant.
Endangering A Minor. People v. Clair (7/21/2011, A127163) 197 CA4th 949: For the purpose of PC 273a(a) (child endangerment), the jury may consider the victim’s age and physical development in determining whether the conduct is likely to produce great bodily harm.
Identity Theft. In re Rolando S. (7/21/2011, F061153) 197 CA4th 936: Willfully obtaining another person’s e-mail account password and use of it to access a Facebook account to post prurient messages on friends’ walls constitutes identity theft.
Prosecution Has The Right To Discovery Of Nontestimonial Information. People v. Appellate Division of Superior Court (World Wide Rush, LLC) (7/22/2011, B230745) 197 CA4th 985: PC 1054 et. sec., does not bar production of corporate records, requested by the prosecution, which constitute a category of nontestimonial evidence that a prosecutor is able to attain under PC 1054.4. (People v. Superior Court (Keuffel & Esser Co.) (1986) 181 CA3d 785.)
Waiver Of Appeal. People v. Mitchell (7/26/2011, C061560) 197 CA4th 1009: A waiver of appeal must be knowing, intelligent, and voluntary.
9th Circuit Court of Appeals
(July 1-31, 2011)
AEDPA. Brown v. Horell (7/12/2011, 9th Cir. No. 09-16643) 644 F3d 969: The conclusion that the state court decision was erroneous in denying suppression of the defendant’s statement does not result in relief in a federal habeas corpus proceeding unless the petitioner demonstrates that the erroneous ruling was the result of an unreasonable application of clearly established federal law as interpreted by the United States Supreme Court.