CALIFORNIA CASE LAW UPDATE – Selected California Cases
California Supreme Court (June 1-30, 2011)
Neither Intent To Apply Force Nor Intent To Cause Fear Required For Robbery. People v. Anderson (6/2/2011, S175351) 51 C4th 989: Anderson argued the forcible taking of the car was not robbery unless he applied the force with the intent to strike or frighten Thompson. However, robbery does not require the intent to cause the victim to experience force or fear. It is robbery if the defendant committed a forcible act against the victim motivated by the intent to steal. Nor does the trial court have a sua sponte duty to instruct on the defense of accident. When a defendant presents evidence in an effort to negate the prosecution’s proof an element of the offense, the defendant is not presenting a “special defense” requiring sua sponte instruction; it must be requested via a pinpoint instruction. The decisions in People v. Gonzales (1999) 74 CA4th 382 and People v. Jones (1991) 234 CA3d 1303, are disapproved to the extent they provide for a sua sponte duty to instruct on accident when the defense is raised to negate the intent or mental element of the crime.
Pandering: Encouraging Prostitute To “Become Prostitute.” People v. Zambia (6/2/2011, S173490) 51 C4th 965: Pandering conviction is supported even though the person who is encouraged by defendant to become a prostitute is already a prostitute.
BWS Defense Triggered Mental Health Evaluation Per PC 730. People v. Gonzales (6/2/2011, S072316) 51 C4th 894: By claiming she was a victim of battered women syndrome unable to overcome her fear of her husband and protect her child under her care, placed her mental state in issue and was subject to an order, under EC 730, requiring her to submit to evaluation by mental health expert. (See Verdin v. Superior Court (2008) 43 C4th 1097 [neither reciprocal discovery within the meaning of section 1054 et. sec., nor the United States or California Constitutions, require a defendant to provide the government’s expert with access to the defendant for the purpose of conducting a mental examination when the defendant is going to present a defense of “diminished actuality.” But EC 730 is a separate basis for the examination.])
Arson: Malice. In re V.V. & In re J.H. (6/6/2011, S177654, S179579) 51 C4th 1020: Where minor defendants had intent to ignite fire in brush-covered area in situation where there is a high probability the brush would burn, malice for purposes of arson is established.
Gang Charge: Predicate Offense. People v. Tran (6/13/2011, S176923) 51 C4th 1040: The prosecution is permitted to prove the predicate offense to establish the pattern of gang activity by establishing that the defendant’s offense on a separate occasion may qualify as a predicate offense within the meaning of PC 186.22(f).
Using Faxed Copies Of Certified Copies To Prove Up A Prior. People v. Skiles (6/27/2011, S180567) 2011 Cal. LEXIS 6173: In a dispute involving whether faxed copies of certified court records are admissible to establish that a prior conviction qualifies as a serious or violent felony under California’s Three Strikes law, the judgment was affirmed where there was sufficient evidence to sustain a finding that the faxed document was an accurate copy of an authentic court record.
Grants of Review
In re Greg F. REV GTD (6/8/2011, S191868) 192 CA4th 1252: Can a juvenile court dismiss a juvenile wardship petition in the interests of justice and commit a juvenile ward to the Department of Juvenile Justice on the basis of a prior sustained petition, even though WI733 prohibits such a commitment of a juvenile ward unless “the most recent offense alleged in any petition and admitted or found to be true by the court” is an offense specified in subdivision (c) of that section and the offense alleged in the dismissed petition was not one of those specified offenses?
People v. Mills REV GTD (6/8/2011, S191934) 2011 Cal. App. Unpub. LEXIS 1465: Did the trial court err by instructing the jury to accept a conclusive presumption that defendant was legally sane for purposes of the guilt phase of the trial?
People v. Sauceda-Contreras REV GTD (6/8/2011, S191747) 2011 Cal. App. Unpub. LEXIS 1174: (1) After defendant had been given his Miranda rights, did his statement – “If you can bring me a lawyer . . . that way I can tell you everything that I know and everything that I need to tell you and someone to represent me” – constitute a clear invocation of his right to counsel that required questioning to cease and did not permit the interrogating officers to attempt to clarify what defendant meant? (2) Was any error in the admission of defendant’s subsequent statements harmless beyond a reasonable doubt?
People v. Mayhan REV GTD (6/8/2011, S192245) 2011 Cal. App. Unpub. LEXIS 3298: Briefing deferred pending decision in People v. Sanchez REV GTD (2/2/2011, S188453) 189 CA4th 374, mod. 189 CA4th 1307a, which includes the following issue: When a defendant indicates the intention to move to withdraw a plea of guilty or no contest on the ground of ineffective assistance of appointed counsel, is the trial court obligated to conduct a Marsden hearing (People v. Marsden (1970) 2 C3d 118) and determine whether counsel should be removed and replaced by new appointed counsel?
People v. Beltran REV GTD (6/15/2011, S192644) 2011 Cal. App. Unpub. LEXIS 2425: (1) Was the jury misinstructed with former CALCRIM 570 on provocation and heat of passion as a basis for a conviction of voluntary manslaughter? (2) Did the prosecutor misstate the applicable law on the subject in argument? (3) Did the trial court accurately respond to a jury question on the subject? (4) If there was error, was defendant prejudiced?
Doe v. Harris REV GTD (6/15/2011, S191948) (4/4/2011, 9th Cir. No. 09-17362) 640 F3d 972: Request under California Rules of Court, rule 8.548, that this court decide a question of California law presented in a matter pending in the United States Court of Appeals for the Ninth Circuit. As restated by the court, the issue is: “Under California law of contract interpretation as applicable to the interpretation of plea agreements, does the law in effect at the time of a plea agreement bind the parties or can the terms of a plea agreement be affected by changes in the law?”
People v. Yarbrough REV GTD (6/15/2011, S192751) 193 CA4th 921: Did the Court of Appeal err in determining that an unenclosed second floor balcony “is not part of a building” such that entry onto the balcony could not constitute burglary?
People v. Moore REV GTD (6/15/2011, S192529) 193 CA4th 746: Briefing deferred pending decision in People v. Aranda REV GTD (1/26/2011, S188204) 188 CA4th 1490, which presents the following issues: (1) Is the trial court’s failure to give a standard reasonable doubt instruction (CALJIC 2.90) reversible per se or is such failure subject to harmless error review? (2) If so, should harmless error be assessed under People v. Watson (1956) 46 C2d 818, or Chapman v. California (1967) 386 US 18?
People v. Prado REV GTD (6/15/2011, S192854) 2011 Cal. App. Unpub. LEXIS 2505 and People v. Rankin REV GTD (6/15/2011, S192459) 2011 Cal. App. Unpub. LEXIS 2372: Briefing in deferred pending decision in People v. Sanchez REV GTD (2/2/2011, S188453) 189 CA4th 374, which includes the following issue: When a defendant indicates the intention to move to withdraw a plea of guilty or no contest on the ground of ineffective assistance of appointed counsel, is the trial court obligated to conduct a Marsden hearing (People v. Marsden (1970) 2 C3d 118) and determine whether counsel should be removed and replaced by new appointed counsel?
People v. Smith REV GTD (6/15/2011, S192048) 193 CA4th 1: 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 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.
In re Cowan (6/22/2011, S158073) (Original proceeding related to the automatic appeal in People v. Cowan (2010) 50 C4th 401): The court issued an order to show cause why petitioner is not entitled to relief on the ground of juror misconduct.
People v. Ramirez REV GTD (6/22/2011, S192558) 193 CA4th 613: Briefing deferred pending decision in People v. Caballero REV GTD (4/13/2011, S190647) 191 CA4th 1248, which presents the following issue: Does a sentence of 110 years to life for a juvenile convicted of committing non-homicide offenses constitute cruel and unusual punishment under the Eighth Amendment on the ground that it is the functional equivalent of a life sentence without the possibility of parole? (See Graham v. Florida (2010) 560 US ____ [176 LEd2d 825; 130 SCt 2011.)
People v. Delgado REV GTD (6/29/2011, S192704) 193 CA4th 1202: Limited to the following issues: (1) Did the trial court have a duty to instruct on its own motion on an aiding and abetting theory of liability when defendant personally performed some elements of the charged offense and another person performed the remaining elements required to complete the crime? (2) If so, did the Court of Appeal correctly conclude that the trial court’s failure to instruct on aiding and abetting was harmless error?
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? The court invited the parties to submit supplemental briefs on the effect, if any, of J.D.B. v. North Carolina (6/16/2011, No. 09-11121) ___ US ___ [2011 U.S. LEXIS 4557].
California Courts of Appeal (June 1-30, 2011)
“Use” Of An Access Card Does Not Violate PC 484g. People v. Cordell (6/1/2011, D056302) 195 CA4th 1564: The evidence did not support a conviction for fraudulent conveyance of an access card pursuant to PC 484e(a). The word “convey” is not defined in the statute, but the dictionary meaning suggests a transfer of possession, custody, control or ownership. The statutory scheme sets the offense apart from the fraudulent “use” of an access card, which is separately forbidden by PC 484g. In this case, Cordell used the victim’s access card on four different occasions to purchase goods without the victim’s consent. Based on the plain reading of the relevant statutory provisions, there was only evidence of “use” and not evidence that he “conveyed” the card. The conviction under PC 484e(a) was reversed.
Evidence Insufficient For Mayberry Instruction. People v. Cordell (6/1/2011, D056302) 195 CA4th 1564: An instruction on the defense of mistake of fact as to consent to sexual acts need only be given if the evidence supports a factual scenario where the defense would apply. People v. Mayberry (1975) 15 C3d 143, 155, established a defense when the defendant actually and reasonably believed that the victim consented to charged acts. People v. Williams (1992) 4 C4th 354 clarified when the defense instruction was required. There must be substantial evidence of the subjective component that the defendant honestly and in good faith believed there was consent and the objective component which asks whether the defendant’s mistake of fact was reasonable under the circumstances. In this case there was no testimony or argument by defense counsel that Cordell was mistaken based on some equivocal conduct or statements by the victim.
Juvenile Court May Not Amend The Petition Without Prosecution’s Consent. In re Jeffrey H. (6/2/2011, G043777) 2011 Cal. App. LEXIS 796: The juvenile court in this case dismissed a robbery allegation and added a grand theft allegation which was admitted without the People’s consent and the court failed to explain how the dismissal of the robbery allegation would further the ends of justice. The trial court exceeded its authority in amending a petition over the People’s objection. The court has no authority to substitute itself as the representative of the People in negotiating such a disposition.
Impeachment With Facts Underlying Prior Conviction. People v. Ardoin (6/3/2011, A122444) 196 CA4th 102: People v. Wheeler (1992) 4 C4th 284 expressly held that witnesses may be impeached with the facts underlying misconduct, whether that misconduct is a felony, a misdemeanor, or neither, so long as the misconduct implicates moral turpitude. Ardoin erroneously suggests that the law is unclear on this issue.
Reopening Final Argument After Instructional Modification. People v. Ardoin (6/3/2011, A122444) 196 CA4th 102: The trial court committed harmless error in denying defense request to reopen argument after court modified felony murder instruction.
No Griffin Error Where Prosecutor Only Comments On Lack Of Evidence. People v. Ardoin (6/3/2011, A122444) 196 CA4th 102: The prosecution did not commit Griffin error by referencing Jaquez’s failure to present evidence. During closing argument the prosecution several times noted Jaquez’s failure to offer an innocent explanation for his possession of the deceased’s drugs and other evidence. However, the prosecutor did not impermissibly reference Jaquez’s assertion of his right to remain silent as prohibited by Griffin v. California (1965) 380 US 609, but was merely summarizing the evidence and was pointing out that Jaquez did not present any evidence.
Imperfect Self Defense: (1) Not Available For Initial Aggressor; (2) “Sudden Escalation” Doctrine Not Applicable. People v. Frandsen (6/6/2011, B222751) 196 CA4th 266: Where defendant participated in ongoing imprisonment of victim who tried to escape, trial court correctly instructed jury that defendant was not entitled to claim imperfect self defense. Frandsen contended the imperfect self defense instruction erroneously excluded the “sudden escalation” exception applicable to the mutual combat instruction. However, by guarding the victim, Frandsen was participating in ongoing criminal acts. Further, the “sudden escalation” exception has never been applied to imperfect self defense and, because Frandsen was the initial aggressor and the victim’s response was legally justified, Frandsen could not rely on imperfect self defense as a ground for voluntary manslaughter.
Child Porn Requires An Actual Child Engaging In Sexual Conduct. People v. Gerber (6/8/2011, H034639) 196 CA4th 368: Where appellant superimposed child’s head on adult bodies, the evidence is insufficient to support child pornography conviction. The conviction for possession of child pornography is unsupported where the image does not “depict” an actual child.
Life Sentence For A Juvenile Is Cruel And Unusual Under Graham v. Florida (2010) ____ US ____ [176 LEd3d 825; 130 SCt 2011]. People v. J.I.A. (6/8/2011, G040625) 196 CA4th 393: Sentence was cruel and unusual by making some of the counts run concurrently to make the defendant eligible for parole at age 56.
Adverse Consequences Of Appeal. People v. Villanueva (6/8/2011, B222580) 196 CA4th 411: Second prosecution, or retrial of certain gun enhancements, after the appellant’s first conviction was overturned on appeal, was not vindictive prosecution (see In re Bower (1985) 38 C3d 865). The court distinguished People v. Puentes (2010) 190 CA4th 1480, based on the fact that the prosecution never dismissed the enhancements after the first trial. Secondly, the trial court was not precluded from imposing a greater sentence than he received prior to his appeal, when the term and enhancements were aggregated. (See People v. Bolton (2011) 192 CA4th 541, 547.) The general rule that an appellant cannot be sentenced to a greater term on a retrial (People v. Craig (1998) 66 CA4th 1444, 1448; People v. Hanson (2000) 23 C4th 355, 367), was not violated since the aggregate sentence is due to the retrial of a count on which the jury hung, and therefore the defendant was not sentenced, at the initial trial. Finally, the Court of Appeal held that the prosecution’s failure to immediately retry the enhancements while the defendant’s appeal was pending did not prejudice the defendant. He did not bring a motion under PC 1381, a retrial within the 60 day period, nor did he bring a motion to dismiss under PC 1382, and in any event the Court of Appeal found good cause to delay pending the completion of the appeal.
Burglary For Opening A Garage Door By Remote Control. Magness v. Superior Court (6/10/2011, C066601) 196 CA4th 630: Use of a remote control from a distance away to open the garage door to the attached garage is not first-degree burglary.
Using Court Of Appeal Opinion To Prove A Prior. In re Richardson (6/13/2011, C062684) 196 CA4th 647: A Court of Appeal opinion is admissible to prove a prior serious felony. In 2004 petitioner was convicted of a felony.
IAC Of Appellate Counsel For Failing To Move From Recall Of Remittitur. In re Richardson (6/13/2011, C062684) 196 CA4th 647: In his 2004 appeal, petitioner challenged the proof of his strike priors, but failed to claim that use of his statements to the probation officer to prove the section 2800.3 prior was error. At the time, People v. Monreal (1997) 52 CA4th 670 held such statements admissible. One week after petitioner’s 2004 review petition was denied, the California Supreme Court held in People v. Trujillo (2006) 40 C4th 165, that a defendant’s post-plea statement to a probation officer is not part of the “record of conviction,” overruling Monreal. However, appellate counsel could not have reasonably known this issue was pending in Trujillo, as none of the Supreme Court notices reflected it intended to address whether such admissions could be used to prove a prior.
There was, and is, no valid basis to recall the remittitur to apply Trujillo to petitioner’s case. A remittitur may be recalled to correct clerical errors, or on the grounds of fraud, mistake or inadvertence. (See Cal. Rules of Court, Rule 8.272(c)(2); Pacific Legal Foundation v. California Coastal Comm. (1982) 33 C3d 158, 165 [recall not permitted to correct judicial error, but it can to correct clerical errors and for fraud, mistake or inadvertence.]) Recall of remittitur may be used to correct judicial error where it is deemed an adjunct to a writ of habeas corpus; it may be granted to implement a defendant’s habeas corpus right to correct the error. However, assuming petitioner’s case was not yet final when Trujillo was decided, and that his first appellate counsel should have moved to recall the remittitur, petitioner would not have enjoyed a more favorable result, because the facts contained in the court’s 1992 opinion could have been used to prove petitioner’s evasion conviction was based on his inflicting serious bodily injury to nonaccomplices.
Refusal Of Mayberry Instruction Was Reversible Error. People v. Sojka (6/14/2011, A127831) 196 CA4th 733: In a jury trial for attempted rape, when there is substantial evidence of victim’s equivocal conduct that would have led defendant to reasonably and in good faith to believe consent existed when it did not, it is error not to instruct on mistaken belief of consent. The appellate court rejected the Attorney General’s contention that because victim and appellant gave contradictory versions of the incident, and because appellant stopped his advances when she rejected him, appellant was not entitled to a mistaken consent instruction. “A requested instruction regarding mistake of fact [is] required when some evidence deserving of . . . consideration exist[s] to support that contention.” (People v. Mayberry (1975) 15 Cal.3d 143, 157.) Here, the evidence was such that the jury should have been instructed on appellant’s good faith but mistaken belief in consent. The error was prejudicial because if the jury could have found that appellant had a reasonable belief that the victim consented, and thus lacked the specific intent for rape.
Gang Expert Testimony Did Not Violate Due Process. People v. Hunt (5/20/2011, ordered pub’d 6/16/2011, E050775) 196 CA4th 811: Admission of the gang expert’s testimony as to how, hypothetically, the commission of crimes by gang members can benefit the gang did not violate defendant’s due process rights (People v. Albarran (2007) 149 CA4th 214, 227, 230 [due process right violation where highly inflammatory evidence admitted].)
Self-Representation: MDO Commitment. People v. Wrentmore (5/20/2011, ordered pub’d 6/20/2011, G043770) 2011 Cal. App. LEXIS 800: An invocation of the right to self-representation for a defendant, facing extension of commitment as a mentally disordered offender is based on a statutory right, and an error in allowing the defendant to waive counsel and represent himself is subject to review for abuse of discretion.
PC 995 Dismissal Of Misdemeanor. Griffith v. Superior Court (6/21/2011, B228470) 2011 Cal. App. LEXIS 790: Proposition 115 and trial court unification did not abrogate the longstanding rule that misdemeanors charged with felonies in an information are subject to dismissal pursuant to PC 995 if not supported by a showing of probable cause at the preliminary hearing.
Implied Malice: Second-Degree Vehicular Murder. People v. Johnigan (6/23/2011, B220763) 196 CA4th 1084: Implied malice for second-degree murder in fatal vehicle collision involving intoxicated defendant does not require showing of prior DUI conviction or accident involving alcohol.
Heller Not Applicable To PC 12025. Despite McDonald v. City of Chicago (2010) 561 US ____ [177 LEd2d 894; 130 SCt 3020], which applies District of Columbia v. Heller (2008) 554 US 570 [171 LEd2d 637; 128 SCt 2783] to states, People v. Ellison (6/28/2011, E050395) 2011 Cal. App. LEXIS 842 held that the crime of carrying a concealable firearm in a vehicle (PC 12025) only bans possession of a concealable firearm in a vehicle and thus Heller – which applies to total bans – is inapposite.
Speedy Trial: Delay For Medical Necessity. People v. Tucker (6/28/2011, B222487) 2011 Cal. App. LEXIS 838: The delay in appellant’s trial based on medical necessity was for good cause.
SVP: Honest Delay In Filing. People v. Superior Court (Gilbert) (6/28/2011, B230886) 2011 Cal. App. LEXIS 841: Where delay in referring defendant for a SVP evaluation is an honest mistake, it was improper for the trial court to dismiss the petition.
U.S. Supreme Court
(June 1-30, 2011)
Miranda Custody: Age Is Relevant Factor. J. D. B. v. North Carolina (6/16/2011, No. 09-11121) ____ US ____ [2011 U.S. LEXIS 4557]: A child’s age is a relevant factor to consider in determining whether the child is “in custody” warranting Miranda warnings.
The Criminalist Who Did The Test Must Testify. Bullcoming v. New Mexico (6/23/2011, No. 09–10876) ____ US ____ [2011 U.S. LEXIS 4790]: Calling a supervisor who did not perform or observe the test violates Crawford v. Washington (2004) 541 US 36 and Melendez-Diaz v. Massachusetts (2009) 557 US ____ [174 LEd2d 2314; 129 SCt 2527]. Court also rejects the claim that this is somehow nontestimonial, saying, “A document created solely for an evidentiary purpose, Melendez-Diaz clarified, made in aid of a police investigation, ranks as testimonial.”
9th Circuit Court of Appeals
(June 1-30, 2011)
Crawford: Police Testimony As To Absent Witness’s Out Of Court Inculpatory Statement. Ocampo v. Vail (6/9/2011, 9th Cir. No. 08-35586) 2011 U.S. App. LEXIS 11588: The Confrontation Clause is violated when police testify to the substance of inculpatory out-of-court statements.
Habeas Corpus: Successive Petitions. Bible v. Schriro (6/28/2011, 9th Cir. No. 07-99017) 571 F3d 860: Petitioner is not entitled to file a successive habeas petition unless it is based on newly discovered evidence which establishes he is actually innocent.