CALIFORNIA CASE LAW UPDATE – Selected California Cases
California Supreme Court (June 1-30, 2010)
Deliberations: Juror Experiments. People v. Collins (5/27/2010, S058537) 49 C4th 175: During deliberations, the jury may use an exhibit according to its nature and carry out experiments within the lines of offered evidence that do not invade new fields. The California Supreme Court observed that once the jury is deliberating, there is nothing to prohibit a single juror from individually contemplating the evidence while separated from other jurors and nothing to prohibit jurors from conducting experiments with evidence. Jurors have wide latitude in the consideration of the evidence and an experiment is improper only if it allows the jury to discover evidence by considering areas not examined during trial. The Court likened the single juror’s use of the computer as a tool that assisted him in thinking about the evidence, similar to the taking of notes of one’s thoughts. As to the jurors’ recreation of the shooting during deliberations, it was “simply a ‘more critical’ examination of the evidence admitted,” with no new extrinsic evidence received. (Higgins v. L. A. Gas and Electric Co. (1911) 159 C 651.)
Evidence: Complaining Witness’s Prior Sexual Conduct. People v. Fontana (6/21/2010, S170528) 49 C4th 351: Under EC 782, where a defendant in a sexual assault case makes an offer of proof about the complaining witness’s prior sexual conduct based on specific evidence, the trial court shall order a hearing out of the jury’s presence and allow questioning of the witness about that conduct. Notwithstanding the Rape Shield Law (EC 1103(c)(1)), evidence of the alleged victim’s prior sexual activity may be admissible pursuant to EC 782 when offered to attack his or her credibility.
Bringing Controlled Drugs Into Jail Or Prison During Booking Process. People v. Low (6/24/2010, S151961) 49 C4th 372 and People v. Gastello (6/24/2010, S153170) 49 C4th 395: PC 4573 (bringing or sending a controlled substance into a place where prisoners are in custody) applies to a person arrested for an unrelated offense who knowingly and “voluntarily” brings the contraband into jail in the course of the booking process, and it does not implicate the Fifth Amendment right against compulsory self-incrimination.
Death Penalty Issues. People v. Hartsch (6/28/2010 S074804) 49 C4th 472: Wheeler motion; recording of conversation with co-defendant; excluded testimony; jury instructions; aggravating evidence in penalty phase; victim impact evidence; lingering doubt; denial of modification motion; challenges to death penalty law.
Death Penalty Issues. People v. Williams (6/28/2010, S029490) 49 C4th 405: Issues: admissibility of defendant’s statements; accomplice instructions; prosecutorial misconduct (use of Biblical references) which “strayed beyond the bounds of permissible argument based upon religion (but harmless)”; instruction on commutation power; challenges to death penalty law.
Grants Of Review:
Coito v. Superior Court REV GTD (6/9/2010, S181712) 182 CA4th 758: Is the statement of a witness that is taken in writing or otherwise recorded verbatim by an attorney or the attorney’s representative entitled to the protection of the California work product privilege?
People v. Bowman REV GTD (6/9/2010, S182172) 182 CA4th 1616: Briefing deferred pending decision in People v. Dungo REV GTD (12/02/2009, 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 decision of the United States Supreme Court in Melendez-Diaz v. Massachusetts (2009) 557 US ___ [174 LEd2d 314; 129 SCt 2527], affects this court’s decision in People v. Geier (2007) 41 C4th 555.
People v. Nelson REV GTD (6/17/2010, S181611) 2010 Cal. App. Unpub. LEXIS 1388: Did the 15-year-old defendant’s request to speak with his mother while he was being questioned by police constitute a request to speak with an attorney that required the officer to cease the questioning immediately?
Emery v. Clark REQ GTD (6/23/2010, S182670) [(9th Cir. No. 08-55249) 604 F3d 1102] – Request under CRC 8.548, that CSC decide questions of California law presented in a matter pending in the United States Court of Appeals for the Ninth Circuit: Briefing deferred pending decision in People v. Albillar REV GTD (8/13/2008, S163905) 162 CA4th 935, which presents the following issues: (1) Did substantial evidence support defendants’ convictions under PC 186.22(a), and the true findings with respect to the enhancements under PC 186.22(b)? (2) Should the phrase “felonious criminal conduct,” appearing in PC 186.22(a) be interpreted to mean felonious criminal gang-related conduct?
People v. Maultsby REV GTD (6/30/2010, S182042) 2010 Cal. App. Unpub. LEXIS 1882: Was defendant required to obtain a certificate of probable cause to raise on appeal a claim that his admissions regarding prior conviction allegations were not knowingly and intelligently made, even though he was convicted by jury of the underlying offense? (See PC 237.5; People v. Fulton (2009) 179 CA4th 1230.)
California Courts of Appeal (June 1-30, 2010)
Confrontation: Breathalyzer Maintenance Records. People v. Chikosi (5/6/2010, pub’d 6/2/2010, G041014) 185 CA4th 238: Breathalyzer maintenance records are not hearsay such that the right of confrontation is violated without testimony from the officer who tested the accuracy of the machine.
PC 654: Underlying Felony In Gang Charge. People v. Duarte (6/2/2010, G041195) 185 CA4th 194: In applying PC 654 to the offense of gang participation (PC 186.22(a)), where the underlying felony is a necessary element of the street terrorism charge, section 654 bars separate punishment.
Expert Testimony On Ultimate Issues: Hypothetical Questions re: Intent And Knowledge. People v. Vang (6/7/2010, D054636) 185 CA4th 309: Hypothetical questions of an expert on the accused’s intent and knowledge in committing the underlying assault exceeded the bounds of discretion and resulted in mere speculation on ultimate issues to be decided by the jury.
Self Representation: Standard. People v. Weber (6/7/2010, C060135) 185 CA4th 337: Competency to waive the right to counsel and to represent one’s self involves the same standard as for competency to stand trial.
Right To Personal Presence: Civil Commitment. People v. Wilkinson (6/9/2010, F057537) 185 CA4th 543: A person facing civil commitment, based on mental retardation and dangerousness to herself and others pursuant to WI 6500, has a right to be present at the hearing.
Authentication Of Writing Offered Into Evidence: Depiction Downloaded From Internet. People v. Beckley (6/9/2010, B212529) 185 CA4th 509: Because a depiction downloaded from a home page on the internet website MySpace is a “writing,” its introduction as evidence is dependent on its authentication.
Uncharged Acts (EC 1109): Presumptively Inadmissible If More Than 10 Years Old. People v. Johnson (6/9/2010, A123469) 185 CA4th 520: Under EC 1109(e), evidence of propensity conduct occurring more than ten years prior to the instant offense is presumptively inadmissible and is to be allowed only on a finding of interest of justice by the trial court.
Reopening Evidence After 1118.1. People v. Riley (6/14/2010, D054660) 185 CA4th 754: After defendant has made a PC 1118.1 motion for acquittal, a trial court has the discretion to allow the prosecution to reopen its case to present evidence inadvertently omitted that goes to an element of the offense.
DUI: Sufficiency Of Field Sobriety Test To Prove Impaired Driving. People v. Benner (6/14/2010, G042127) 185 CA4th 791: In a case involving a VC 23152(a) violation, sufficient evidence of driving impairment due to drug use can be provided by expert testimony and the evaluation of defendant’s performance on field sobriety tests.
Juror Unanimity: Predicate Vehicle Code Violations For “Reckless Evading.” People v. Datt (6/17/2010, H033079) 185 CA4th 942: To convict on a charge of reckless evading (VC 2800.2(a)), a jury does not have to unanimously agree on any three particular Vehicle Code violations required to satisfy the “willful or wanton” element of the charge. Trial counsel asked that CALCRIM 12.85, the instruction on reckless evading, be modified to advise the jury it must unanimously agree which three Vehicle Code violations supported the “willful and wanton” element of the crime. The court refused the request. The refused modification was alleged as appellate error. The appellate court held juror unanimity is not required on this point.
Funds In Capital Cases: Definition Of Capital Case. Gardner v. Superior Court (6/18/2010, A125861) 185 CA4th 1003: “Capital case” as used in PC 987.9 (entitling accused to investigation and expert funds) means one where defendant faces possibility of death penalty, where defendant “actually risks death.” (Sand v. Superior Court (1983) 34 C3d 567, 571.) “So, unless the district attorney makes an announcement to the contrary, a defendant charged with murder with special circumstances is exposed to that punishment, and a section 987.9 request must be heard on the merits.”
General Criminal Intent Requires Knowledge Of Facts Which Violate The Statute. People v. Morris (6/22/2010, C060358) 185 CA4th 1147: A PC 667.9(a) enhancement (elder or developmentally disabled victim) requires proof the defendant knew, or reasonably should have known, the victim was a person who qualified under the statute.
Uncharged Acts: Stalking As Act Of Domestic Violence. People v. Ogle (6/22/2010, B214086) 185 CA4th 1138: “Stalking is an act of domestic violence and admissible to prove propensity to commit the crime of making criminal threats.”
Lewd Touching (PC 288): Sufficiency Of Constructive Touching. People v. Lopez (6/23/2010, E048027) 185 CA4th 1220: For purposes of a PC 288 violation (lewd acts upon a child), the touching element can be satisfied by a touching committed out of the defendant’s presence, but at his direction.
Multiplicity: Child Molestation. People v. Tompkins (6/23/2010, E047842) 185 CA4th 1253: In a multi-count child molestation case, evidence that multiple molestations took place will establish the corpus delicti for multiple counts.
Retained Counsel Must Pay For Discovery. Schaffer v. Superior Court (6/23/2010, B217743) 185 CA4th 1235: PC 1054.1 does not require the prosecution to give retained defense counsel discoverable evidence free of charge.
Citizen Arrest For Misdemeanor. People v. Bloom (6/25/2010, E048326) 185 CA4th 1496: A prompt warrantless arrest by a citizen for a misdemeanor occurring in her presence is lawful.
Sex Offender Registration: Least Adjudicated Elements. In re Rodden (6/29/2010, C064437) 186 CA4th 24: A guilty plea for failure to register as a sex offender in California may be set aside when the least adjudicated elements of the Kentucky conviction were gleaned from a probation report.
Sex Offender Registration: Equal Protection. People v. Honan (6/29/2010, G042894) 186 CA4th 175: Because a person convicted of indecent exposure (PC 314(1)) is not similarly situated to one convicted of lewd conduct (PC 647(a)), mandatory sex registration for section lewd conduct, as compared to discretionary registration for indecent exposure, does not violate equal protection.
Accomplice Corroboration. People v. Beaver (6/29/2010, C060490) 186 CA4th 107: There was sufficient corroboration of accomplice testimony to support a grand theft conviction.
Reversible Error To Give Grand Theft Instruction In Theft By False Pretenses Prosecution. People v. Beaver (6/29/2010, C060490) 186 CA4th 107: In a case involving theft by false pretenses, a grand theft instruction will not suffice. Appellant argued the jury was not properly instructed on the law pertaining to the offense because the court gave a general grand theft instruction (CALCRIM 1800) and not specific instruction on theft by false pretenses, which was the offense shown by the evidence. Respondent countered that the prosecution’s theory at trial was theft by embezzlement. The court found theft by embezzlement was not the offense committed since there was no evidence appellant was in a position of trust and that the company gave him access to property he appropriated for himself. The evidence showed appellant induced the ski resort to give him benefits in reliance of appellant’s claim that he injured himself on the property. This is theft by false pretenses and an instruction on that offense was required. To convict a defendant of theft by false pretenses, it must prove that (1) the defendant made a false pretense or representation to the property owner; (2) with the intent to defraud the owner of that property; and (3) the owner transferred the property to the defendant in reliance on the representation. Moreover, the false pretense must be corroborated. The instructional error cannot be deemed a technical, harmless one because the jury was never asked to decide beyond a reasonable doubt whether there was a representation made by appellant on which the ski resort relied, or the necessary corroboration. The conviction and the attached enhancement were reversed. For purposes of retrial, the court noted there was also instructional error with regard to the section 12022.6 (excessive loss) enhancement. CALCRIM 3220, which is specific to this enhancement, should be given.
IAC: Failure To Locate Qualified Investigator To Evaluate Defendant’s Version Of Incident. People v. Jones (6/30/2010, A126005) 186 CA4th 216: In the litigation of a suppression motion, effective representation includes a duty to locate potential witnesses to evaluate defendant’s version of the incident in question, and to obtain a qualified investigator, if an investigator can support defendant’s version.
Impoundment Of Car Driven On Revoked Or Suspended License. Alviso v. Sonoma County Sheriff’s Dept (6/30/2010, A126241) 186 CA4th 198: VC 14602.6 does not violate equal protection, due process or Fourth Amendment. Owner has right to speedy administrative hearing. Agrees with Conner v. City of Santa Ana (9th Cir. 1990) 897 F2d 1487 (no requirement of judicial tribunal).
U.S. Supreme Court (June 1-30, 2010)
Apprendi: Whether Firearm Is A Machine Gun. United States v. O’Brien (5/24/2010, NO. 08-1569) ____ US ____ [176 LEd2d 979; 130 SCt 2169]: Jury must decide whether a firearm is a machine gun.
Request To Invoke Miranda Must Be Unambiguous. Berghuis v. Thompkins (6/1/2010, No. 08-1470) ____ US ____ [176 LEd2d 1098; 130 SCt 2250]: A defendant can invoke Miranda only by an unambiguous assertion of the right to silence or counsel. Silence alone is not an invocation. Any statement made after Miranda warnings, except apparently for an unambiguous assertion of the right to silence, establishes implied waiver of the right to remain silent.
AEDPA Statute Of Limitations: Equitable Tolling. Holland v. Florida (6/14/2010, No. 09-5327) ____ US ____ [177 LEd2d 130; 130 SCt 2549]: Under AEDPA, a petitioner may be entitled to equitable tolling of filing deadlines if he can establish unprofessional conduct by his attorney.
IAC: Prejudice From Failure To Investigate Mental State Mitigation. Sears v. Upton (6/29/2010, No. 09-8854) ____ US ____[177 LEd2d 1025; 130 SCt 3259]: A constitutionally deficient investigation calls into question the reasonableness of counsel’s defense theory. Because counsel had a theory and presented some mitigation evidence, the state court reasoned that Sears failed to meet his burden of proving that there is a reasonable likelihood that the outcome at trial would have been different if a different mitigation theory had been presented. Post-conviction investigation revealed that Sears was the product of a physically abusive relationship; he was sexually abused by an adolescent cousin; his parents were both verbally abusive and his father disciplined him with age-inappropriate military drills. Sears demonstrated behavior problems from a young age and was found to be severely learning disabled and severely behaviorally handicapped by high school. Two psychological experts with unchallenged credentials found he had substantial deficits in mental cognition and reasoning and significant frontal lobe abnormalities. Whatever the source of the brain damage, he placed below the first percentile in several categories of cognitive functioning. Some adverse evidence could have been explained as a feature of his profound personality disorder. The evidence would not have made Sears more likeable to the jury, but it would have helped the jury to understand Sears and place his horrendous crimes in context. The case was reversed and remanded for the state to undertake the appropriate prejudice analysis.