CALIFORNIA CASE LAW UPDATE – Selected California Cases
California Supreme Court (June 1, 2007 – June 30, 2007)
People v. Stevens (6/4/2007, S034704) 41 C4th 182: Crawford and lying in wait.
People v. Licas (6/18/2007, S140032) 41 C4th 362: Assault with a firearm (PC 245(a)(2)) is not a lesser included offense of shooting at another person from a vehicle (PC 12034(c)).
Grants Of Review:
People v. Gastello REV GTD (6/13/2007, S153170) 149 CA4th 943 and People v. Low (6/13/2007, S151961) Unpublished below (A112831): Did the defendant violate PC 4573 by knowingly having methamphetamine in his possession when he was brought into county jail after his arrest on other charges?
People v. Price REV GTD (6/13/2007, S151207) 147 CA4th 955: Did the untimely filing of the petition to extend an insanity commitment deny defendant due process, when there was no good cause for the delay and the late filing allegedly left him with insufficient time to prepare for the hearing on the petition?
People v. Cruz REV GTD (6/13/2007, S152272) Unpublished below (B186073) briefing deferred pending decision in People v. Brookfield (1/17/2007, S147980) 2007 Cal. LEXIS 2608 and People v. Jones (1/17/2007, S148463) 2007 Cal. LEXIS 1369 which includes the following issue: is a violation of PC 246 for shooting at an inhabited dwelling, which was committed for the benefit of a criminal street gang within the meaning of PC 186.22(b)(4)(B), a “felony punishable by . . . imprisonment in the state prison for life” within the meaning of PC 12022.53(a)(17), such that sentence can be enhanced under PC 12022.53(b) or (c) for the personal use and intentional discharge of a firearm?
People v. Soper REV GTD (6/27/2007, S152667) Unpublished below (D047875): In concluding that the trial court abused its discretion when it denied defendant’s motion to sever two murder counts for trial, did the CA err in holding that evidence of each murder could not be admitted on the question of intent or motive as to the other murder because identity was at issue and the crimes were not cross-admissible on that point?
California Courts of Appeal (June 1, 2007 – June 30, 2007)
People v. Tripp (6/1/07, F049845) 151 CA4th 951: Held that a small amount of methamphetamine found on a nightstand in a bedroom that the defendant shared with his girlfriend, while sufficient to prove his constructive possession of the methamphetamine, is insufficient to prove that defendant knew of its nature as a controlled substance. The crime of possession of methamphetamine consists of 4 elements, one of them being that the defendant knew of its nature as a controlled substance. (People v. Palaschak (95) 9 C4th 1236, 1242.) A reasonable inference may not be drawn from suspicion alone; the evidence must be of credible and solid value. (People v. Raley (92) 2 C4th 870, 891.) Assuming the defendant possessed the methamphetamine, the circumstances of this case did not support his knowledge of its narcotic character. It was not hidden, packaged in a characteristic manner, prepared for ingestion, carried on defendant for personal use, was not located with paraphernalia, nor did appellant attempt to dispose of the narcotic nor flee from the scene. (See People v. Williams (71) 5 C3d 211, 215.) Mere proof of opportunity of access to a place where narcotics are found will not support a finding of unlawful possession. (People v. Vasquez (69) 1 CA3d 769, 777.) The reversal bars retrial. (People v. Seel (2004) 34 C4th 535, 542.)
People v. Rios (6/7/2007, F050057) 151 CA4th 1154: Held that the language in CALCRIM 220 (former CALJIC 2.90), requiring the jury “to compare and consider all the evidence” did not impermissibly shift burden of proof to the defense by allowing the jury to hold against the defense in the absence of defense evidence. The language in CALCRIM 372 (formerly CALJIC 2.52), allowing jury to infer from defendant’s flight after the crime that he was “aware of his guilt,” did not impermissibly presume the existence of guilt or lower prosecution’s burden of proof. The language in CALCRIM 3471 (formerly CALJIC 5.56), allowing the use of deadly force in self-defense without withdrawal from the fight if “the defendant started the fight using nondeadly force” did not violate defendant’s rights to due process, confrontation, and proof beyond a reasonable doubt.
People v. Ibarra (6/7/2007, D049605) 151 CA4th 1145: Held that it was not an and abuse of its discretion for the court to permit the prosecutor to play a three-minute, 14-second video recording made by television reality show “COPS,” where it showed the police rescuing the victim being attacked by defendant since the tape was not unduly inflammatory and was highly probative in that it showed great force, unconscious victim, and need for police to restrain defendant, and thus contradicted his claim that he attacked victim in sudden heat of passion. (EC 352; People v. Sims (93) 5 C4th 405, 452.)
People v. Ashraf (6/8/2007, C052207) 151 CA4th 1205: Failure to turn over unfavorable discovery doesn’t permit dismissal.
People v. Shepherd (6/8/2007, A114880) 151 CA4th 1193: Hearsay at probation violation hearings is not admissible.
People v. English (6/8/2007, F049654) 151 CA4th 1216: Relying on recidivism factors to impose upper term.
People v. Timms (6/11/2007, A113889) 151 Cal. App. 4th 1292: No error to limit the instruction on the defendant’s voluntary intoxication to exclude implied malice or whether he acted with conscious disregard for human life. (See People v. Reyes (97) 52 CA4th 975, 984, fn. 6; see also CALCRIM 625.) The court rejected a contrary view based on an analysis of Montana v. Egelhoff (96) 518 US 37. The instruction, CALCRIM 2.20, that tells the jury to “compare” all the evidence “received” throughout the entire trial did not improperly shift burden of proof to defense. (People v. Frye (98) 18 C4th 894, 974.) Such language tells the jury to base their verdict on the evidence at trial and not any other source. (Victor v. Nebraska (94) 511 US 1, 16-17.)
People v. Timms (6/11/2007, A113889) 151 Cal. App. 4th 1292: Barring evidence of voluntary intoxication on implied malice; various CALCRIM instructions approved.
People v. King (6/11/2007, B192709) 151 CA4th 1304: Sex offender registration—when imposed as probation condition.
People v. Hobbs (6/12/2007, E038779) 152 CA4th 1: Child pornography—videotaping girls in locker room.
People v. Nguyen (6/13/2007, G036837) 151 CA4th 1473: Pitchess motion compels disclosure of police personnel records only if they are material to the pending litigation.
People v. Reyes (6/14/2007, C052592) 151 CA4th 1491: CALCRIM 103 (similar to CALCRIM 220), the reasonable doubt instruction cannot be reasonably interpreted as allowing jury to nevertheless consider the fact of defendant’s arrest or trial as evidence of his guilt. CALCRIM 302, pertaining to a simple number of witnesses on either side is not determinative, does not impermissibly convey the erroneous impression that jury may consider the number of witnesses who testified for each side as one factor in determining which version of events to credit. CALCRIM 359, which instructs jurors pertaining to the corpus delicti rule, that they may not consider an out-of-court statement by a defendant unless they conclude that other evidence shows someone committed “the charged crime,” as opposed to “each element of the charged crime,” correctly explains the law on corpus delicti.
People v. Westbrooks (6/14/2007, D048175) 151 CA4th 1500: Trial court did not violate defendant’s due process right to have his guilt determined beyond a reasonable doubt by instructing the jury, pursuant to CALCRIM 220, that it must impartially “compare and consider all the evidence that was received throughout the entire trial.” (See Victor v. Nebraska (1994) 511 US 1.)
In re Stier (6/15/2007, 2007) 152 CA4th 63: District attorney’s withdrawal of opposition to petition for writ of habeas corpus did not result in attorney general’s waiver of right to challenge the petition where district attorney represented only the county and was not directed in any way by attorney general, who separately represented the state’s interests in the litigation. Attorney general’s non-appearance at hearing and failure to present objections to the petition did not result in forfeiture of right to challenge where argument that the trial court erred by granting writ of habeas corpus without evidence of the petitioner’s custody was a claim of lack of authority under the law to grant the particular relief requested. (See Cowan v. Superior Court (96) 14 C4th 1210, 1224 [forfeiture is the failure to make the timely assertion of a right, waiver is the intentional relinquishment of abandonment of a know right].) The attorney general’s office was not bound by estoppel where it never advocated or ratified the position ultimately taken by the district attorney. (People v. Butrum (2003) 30 C4th 773, 783 [parties are estopped from complaining of results or orders with which they expressed agreement].)
People v. Brenn (6/18/2007, G036470) 152 CA4th 154: Statements made by a stabbing victim to a 911 operator and to the first police officer on the scene, focused on trying to help victim, not gather evidence, were admissible as spontaneous statements pursuant to EC 1240 and did not violate Crawford, Davis v. Washington (2006) 547 US ____ [126 SCt 2266; 165 LEd2d 224], or People v. Cage (2007) 40 C4th 965, finding the statements were nontestimonial in nature so that their admission did not violate Confrontation Clause. Any error in admission of stabbing victim’s statements was harmless beyond a reasonable doubt where defense theory was self-defense, and it was undisputed that victim was stabbed during fight with defendant. PC166, making it a crime to violate a domestic violence protection order, might be interpreted, in some cases, as making it unlawful for the subject of such an order to innocently accept contact initiated by the person for whose benefit the order was ostensibly made, does not render the statute unconstitutional for overbreadth as applied to this defendant who initiated contact with the victim in violation of the order; but the Court of Appeal did find it may be unconstitutional in some instances. Where the defendant was sentenced to prison for attempted manslaughter and was also convicted of aggravated assault with a great bodily injury enhancement based on same occurrence, it was error to impose concurrent prison term for the latter offense, and at the same time it was stayed pursuant to PC 654. The proper disposition was to stay imposition of sentence pursuant to section 654. (See People v. Deloza (98) 18 C4th 585, 591-592.)
People v. Parras (6/19/2007, F044512) 2007 Cal. App. LEXIS 1003: Where the defendant was tried in 2002 for a homicide that occurred in 1989, it was not error for judge to give CALJIC 8.40, as revised in 2001 to include as a required element of the crime of voluntary manslaughter proof that “[t]he perpetrator of the killing either intended to kill the alleged victim, or acted in conscious disregard for life.” Use of the revised instruction did not violate “retroactivity rule” where it was no more disadvantageous to defendant than the previous version and where intervening case law, namely People v. Blakeley (2000) 23 C4th 82, 87-88, and People v. Lasko (2000) 23 C4th 101, holding that intent to kill was not an element of voluntary manslaughter was not unforeseeable at the time of the offense. (See People v. Johnson (2002) 98 CA4th 566, 577; see also People v. Crowe (2001) 87 CA4th 86.) The court was not required to instruct sua sponte that an unintentional killing during the commission of “another crime” constitutes involuntary manslaughter, an instruction that could only be accurate if the underlying crime were a misdemeanor, where there was undisputed evidence that the underlying crime was committed with such force as to constitute a felony.
Smith v. Superior Ct. (People) (6/19/2007, D049852) 2007 Cal. App. LEXIS 1001: DA not a party to 3rd party discovery and can’t get what the defense gets from an SDT.
People v. Parrish (6/19/2007, B188975) 2007 Cal. App. LEXIS 1006: Forfeiting your Crawford objection by offering part of the declarant’s statement.
People v. Cole (6/19/2007, F050978) 2007 Cal. App. LEXIS 1004: Minors convicted as adults get strike priors.
People v. Morton (6/20/2007, G036413) 2007 Cal. App. LEXIS 1014: Recidivist factors and competent evidence.
People v. Yim (6/21/2007, B189955) 2007 Cal. App. LEXIS 1012: Cunningham and recidivist factors.
People v. Tillotson (6/21/2007, G035041) 2007 Cal. App. LEXIS 1017: Conviction and sentence for drug-related, computer access and fraud, identity theft, and other related counts is affirmed in part, but reversed in part where: 1) the judgment required modification to reflect a conviction for attempt to violate PC166(a)(4); 2) a jury instruction on PC 502(c)(1) was prejudicially erroneous; 3) under the accusatory pleading test, a violation of section 502(c)(3) appears to be a lesser included offense to a violation of section 502(c)(1), alleged in one count; 4) the trial court erred by imposing two three-year enhancements under HS 11370.2(c); 5) the trial court erred by imposing sentences on certain counts to run consecutively to each other without stating reasons for doing so; and 6) the trial court imposed an upper term sentence on a count based on factors not found true beyond a reasonable doubt by a jury.
People v. Buffington (6/22/2007, C051988) 2007 Cal. App. LEXIS 1026: Impeaching a defense expert with other specific cases.
People v. Cabrera (6/25/3007, D047895) 2007 Cal. App. LEXIS 1036: Carjacking and claim of right defenses.
People v. Anderson (6/26/2007, C051985) 2007 Cal. App. LEXIS 1042: Miscellaneous CALCRIM challenges rejected.
People v. Bogan (6/27/2007, C052691) 2007 Cal. App. LEXIS 1091: Pimps conspiring with prostitutes to solicit prostitution.
People v. Marquez (6/27/2007, B185942) 2007 Cal. App. LEXIS 1090: Attempted grand theft auto is not a lesser included offense of attempted carjacking.
Ninth Circuit Court of Appeal (June 1, 2007 – June 30, 2007)
Murdoch v. Castro (9th Cir. 6/12/2007, No. 05-55665) 2007 U.S. App. LEXIS 13712: Discovery—attorney-client privileged letter.