CALIFORNIA CASE LAW UPDATE – Selected California Cases
California Supreme Court (March 1 – March 31, 2008)
People v. Gay (3/20/2008, S093765) 42 C4th 1195: Lingering doubt as to defendant’s role: right to present evidence at penalty phase.
In re Smith (3/24/2008, S145959) 42 C4th 1251: A defendant can be committed as an SVP only if he has a conviction for a specified offense. When the underlying conviction necessary for an SVP commitment is reversed, no SVP commitment is permitted.
People v. French (3/27/2008, S148845) 43 C4th 36: (1) defendant was not required to obtain a certificate of probable cause in order to raise his claim of Cunningham error on appeal, because that claim implicates his sentence only and does not constitute a challenge to the plea agreement; (2) defendant did not forfeit his Cunningham claim by failing to raise it in the trial court because, under the circumstances of this case, an express waiver of jury trial on aggravating circumstances was required and no such waiver occurred; (3) in pleading no contest pursuant to a plea agreement providing for a sentence not to exceed a stipulated maximum and further stipulating to a factual basis for the plea, defendant neither waived his right to a jury trial on aggravating circumstances nor admitted facts that established an aggravating circumstance; and (4) imposition of the upper term sentence violated defendant’s Sixth Amendment right to a jury trial, and the constitutional error was not harmless beyond a reasonable doubt.
Grants Of Review:
People v. Bonnetta REV GTD (3/12/2008, S159133) 156 CA4th 1315: Must an appellate court automatically reverse a trial court’s order striking enhancements pursuant to PC 1385 because the trial court, although it stated its reasons for dismissal on the record, failed to enter the reasons upon the minutes, or can the error be found harmless?
People v. Cobb REV GTD (3/12/2008, S159410) 157 CA4th 393: (1) Was defendant denied due process and a fair trial by delay in the prosecution of a petition for continued involuntary treatment and continued detention until 23 days after his release date? (2) Did defendant’s pre-parole certification as a mentally disordered offender, which required him to accept treatment as a condition of parole, suffice to justify his continued detention pending trial on a petition for continued involuntary treatment?
People v. Rodriguez REV GTD (3/12/2008, S159497) 157 CA4th 14, mod. 157 CA4th 1174a: (1) Does PC 654 apply to sentence enhancements that derive from the nature of the offense? (2) Did the trial court err in this case by imposing enhancements for personal use of a firearm (PC 12022.5(a)) and committing a crime for the benefit of a criminal street gang (PC 186.22(b))?
People v. Sun REV GTD (3/12/2008, S159495) 157 CA4th 277 briefing deferred pending decision in People v. Gonzalez REV GTD (3/14/2007, S149898) 146 CA4th 327, which presents the following issue: When separate firearm enhancements under PC 12022.5 and subdivisions (b), (c), and/or (d) of section 12022.53 are found true and the longest enhancement is imposed, should the lesser enhancements be stricken, stayed or simply not imposed at all?
People v. Jones REV GTD (3/26/2008, S159867) 157 CA4th 580 briefing deferred pending decision in People v. Chun (12/19/2007, S157601) 155 CA4th 170, which presents the following issue: Does the offense of discharging a firearm at an occupied vehicle in violation of PC 246 merge with a resulting homicide under People v. Ireland (69) 70 C2d 522, if there is no admissible evidence of an independent and collateral criminal purpose other than to commit an assault?
California Courts of Appeal (March 1 – March 31, 2008)
People v. Whaley (3/3/2008, H031647) 160 CA4th 779: Amendments to Sexually Violent Predator Act allowing for an indeterminate term do not apply retroactively.
People v. Stone (3/4/2008, F051812) 160 CA4th 937: Court’s modification of CALCRIM 600, which permitted the jury to find specific intent to kill the victim in a group of people if it found that defendant had intent to kill anyone in the “kill zone” into which he fired gun, and that the victim was in a “kill zone”, was prejudicial error; evidence was insufficient to support the defendant’s conviction for attempted murder where there was no evidence that defendant specifically intended to kill victim. (People v. Campos (2007) 156 CA4th 1228; People v. Anzalone (2006) 141 CA4th 380; People v. Bland (2002) 28 C4th 313, 330.) Given no intent to kill, the defendant cannot be retried on this count. (People v. Seel (2004) 34 C4th 535, 544; Burks v. United States (78) 437 US 1.)
People v. Felix (3/4/2008, B193558) 160 CA4th 849: The jury was properly instructed with CALCRIM instructions. Appellant challenged numerous CALCRIM instructions that were provided to the jury during his murder trial. The appellate court found no instructional error. Despite the failure to raise the challenges in the trial court, the appellate court decided them on the merits to determine whether there was an impairment of substantial rights or ineffective assistance of counsel for failing to object. Regarding the challenge to CALCRIM 315, that it improperly limited the factors the jury could consider in evaluating eyewitness testimony, the court concluded that the instruction did not allow the jury to disregard factors not listed in the instruction. Likewise, CALCRIM 318 did not improperly encourage the jury to ignore or neglect evidence presented at trial and provided proper guidance about how the jury could use witness testimony. CALCRIM 332 did not advise the jury to determine the truth or accuracy of matters not presented at trial. The court rejected appellant’s argument that CALCRIM 700 was improper because it does not explain the nature of the agreement the jury had to reach regarding whether the prosecution proved the special allegations to be true. The instruction, when viewed together with CALCRIM 220 and 3550 informed that the jury that it could not find a special allegation true unless every juror agreed it had been proved beyond a reasonable doubt. CALCRIM 704 properly instructed the jury on the threshold inquiry regarding the use of circumstantial evidence to establish special allegations. CALCRIM 706 did not improperly bar the jury from considering whether an accomplice’s credibility was impaired by a plea bargain. The court also rejected challenges to CALCRIM 729 and 736, 3146, and 3515.
People v. Chavez (3/4/2008, B185907) 160 CA4th 882: A defendant acquitted by reason of insanity on certain crimes must first be committed to state hospital before he can be transferred to state prison.
People v. Smith (3/5/2008, D049993) 161 CA4th 622: The defendant was charged with driving under the influence and driving at or above .08. The jury acquitted him on the .08 count (the defense was that the defendant drank after the accident) and hung on the DUI count. At the retrial, the DA was permitted to present evidence of the .08 and to give the presumption instruction and the defendant was convicted. Held: the initial jury’s verdict collaterally estopped the DA from relying on the presumption in the second trial. It was permissible to present the evidence of .08, but the jury should have been instructed to presume that the defendant was NOT at or above .08.
NOTE: The opinion withdrawn by order of court at: People v. Smith (6/11/2008, S163661) 2008 Cal. LEXIS 6900.
People v. McGowan (3/10/2008, C054075) 160 CA4th 1099: CALCRIM 362 is not an improper pinpoint instruction. The court has no sua sponte duty to instruct that absence of flight shows consciousness of innocence. Prior to his jury trial, appellant gave differing statements to investigating officers regarding his contacts with the victim. The jury was instructed pursuant to CALCRIM 362 that if it found that defendant made a willfully false or deliberately misleading statement concerning the crime, it could consider this statement as a circumstance tending to prove a consciousness of guilt but that it alone was not sufficient to prove guilt. The appellate court held that this was not an improper pinpoint instruction and noted that, despite minor differences, the language of the CALCRIM instruction mirrored that of CALJIC 2.03, which has been determined to not be an improper pinpoint instruction. (People v. Arias (96) 13 C4th 92; People v. Kelly (92) 1 C4th 495.) The court also held that there is no sua sponte duty to instruct on absence of flight. Unlike flight, for which the court has a sua sponte duty to instruct when the prosecution relies on it to show consciousness of guilt, absence of flight presents such marginal relevance it is usually not even admissible
People v. Earp (3/11/2008, B201309) 160 CA4th 1223: Trial court erroneously heard the request of relieved counsel for re-appointment without the presence of new appointed counsel, leaving appellant with the task of trying to convince the court that he had a legal basis for withdrawing his plea and receiving new counsel. This error deprived appellant of his constitutional right to counsel and, as such, there was no requirement for a showing of prejudice. (See U.S. v. Cronic (84) 466 US 648; In re Johnson (65) 62 C2d 325.)
People v. Rolon (3/11/2008, B197488) 160 CA4th 1206: The defendant/parent has a duty to protect his or her young child and may be criminally culpable under either (1) an aider and abettor theory for an assault causing death and (2) on an implied malice theory for murder where the parent’s failure to act or take reasonably necessary steps to protection the child, so long as the parent with ability to do so fails to take those steps with the intent of facilitating the perpetrator’s assaultive offense. (People v. Heitzman (94) 9 C4th 189, 197 [the person must be under a legal duty to take positive action].) There was sufficient evidence established that the defendant knew that her boyfriend had assaulted her son but made no effort to obtain help for the child and instead went to sleep and left her son alone with boyfriend, although she knew he had recently punched the child and thrown him against a wall, was sufficient for jury to infer that defendant was capable of taking some action to protect her child and that she chose not to do so, and thus did not take every step reasonably necessary under the circumstances to protect her son as required by law. (See People v. Swanson-Birabent (2003) 114 CA4th 733, 745-746.) The court did not err in instructing with CALJIC 3.01, 8.11, or 8.31 pertaining to her legal duty to act or failure to act.
People v. Clemons (3/12/2008, B190535) 160 CA4th 1243: The decision to plead guilty or not guilty, including not guilty by reason of insanity, is solely defendant’s, even in the instance where counsel believes a plea of not guilty by reason of insanity is a bad trial tactic. (PC 1018; People v. Gauze (75) 15 C3d 709; People v. Medina (90) 51 C3d 870.)
People v. Concha (3/18/2008, B195197) 160 CA4th 1441: Held, over a dissenting opinion discussed below, that where defendants threatened, chased, and assaulted a victim, there was a high probability that their conduct would evoke a lethal response from the victim, and where the victim fought back and killed one of his assailants, there was substantial evidence that the defendants had committed the requisite provocative acts to sustain a jury’s finding of the defendants’ liability for the murder of the deceased assailant. The court’s instruction on the provocative act theory of murder, as applied to a provocateur whose accomplice is killed by an intended victim of the provocative act, correctly stated law regardless of whether decedent also committed provocative acts, and did not constitute ground for reversal where, in light of the facts, the jury’s express findings on the verdict form, and the relevant portions of the challenged instruction, there was not a reasonable probability that the jury found defendants liable for murder based solely on the murdered accomplice’s provocative acts. Under the doctrine of transferred intent, the defendants’ malice, deliberation, and premeditation for the attempted murder of the victim transferred to the murder of the deceased assailant, and justified the defendants’ conviction for first degree murder. The dissent, written by Justice Turner, finds that the defendant’s theory is correct: the fact that the provocative act theory applies does not permit the return of first degree murder verdicts since that doctrine is a form of implied malice allowing only a second degree murder (People v. Nieto Benitez (92) 4 C4th 91, 109-110; see also People v. Rosenkrantz (88) 198 CA3d 1187); transferred intent does not apply to this case, and because the decendent, was an accomplice, the first degree murder finding cannot be justified on a felony-murder rule theory. (People v. Washington (65) 62 C2d 777, 780-782.)
In re R. K. (3/21/2008, C056541) 160 CA4th 1615: A woodshed adjacent to a house does not constitute a public place for the purpose of PC 647(f) (drunk in public) as it is not a place for common use, participation, or enjoyment (In re Zorn (63) 59 C2d 650, 652).
People v. Tatum (3/24/2008, D051185) 161 CA4th 41: The state’s failure to timely file a petition under the Mentally Disordered Offender Statute [PC 2960 et seq.] may implicate a due process violation for which dismissal can be a proper remedy.
People v. Miranda (3/24/2008, C053362) 161 CA4th 98: Under the corpus delicti rule, a conviction is prohibited where the only evidence that the crime (corpus) was committed is the defendant’s out-of-court statement, but the corpus does not include facts resulting in sentence enhancement.
People v. Leon (3/25/2008, D048304) 161 CA4th 149: An aider and abettor is guilty of the target offense and any other offense that is a natural and probable consequence of the target offense if he acts with knowledge of the criminal purpose of the perpetrator and with an intent of committing, encouraging or facilitating commission of the offense. A “natural consequence” is one that is reasonably expected to occur in the commission of the target offense, absent unusual intervention, and “probable” means likely to occur. Appellant and his codefendant who were members of the same gang, were burglarizing vehicles in opposing-gang territory when the victim arrived. The codefendant shot a weapon in the air. Appellant was convicted of witness intimidation on the People’s offered theory that he was an aider and abettor. The appellate court disagreed, finding that the co-defendant’s crime of witness intimidation was not a natural and probable consequence of the target crimes of burglary and possession of a concealed firearm or carrying a loaded firearm by a participant in a criminal street gang.
People v. Lee (3/25/2008, F052081) 161 CA4th 124: When the defense asks a court under Romero (13 C4th 497) to strike a strike, the judge is required to consider whatever evidence is presented. However, the judge has no duty to consider the defendant’s background information even though the defense didn’t present any.
People v. Sutton (3/26/2008, B195337) 161 CA4th 350: Appellant was prejudiced by six-day delay of his trial caused by codefendant’s counsel’s scheduling conflict.
NOTE: Rehearing has been granted in People v. Sutton (4/1/2008).
In Re Singler (3/26/2008, C054634) 161 CA4th 281: Parole Board’s denial of parole that is based on the commitment offense may be overturned if a significant period of time has passed; there is uncontroverted evidence of the inmate’s rehabilitation; and the crime was not committed in such a manner as to undermine evidence that the inmate’s rehabilitative efforts demonstrate that he would not be a danger to society if released. Under this criteria, the court determined that the evidence the board considered did not support its finding that petitioner was unsuitable for parole.
NOTE: Review was granted in In Re Singler REV GTD (7/9/2008, S163264) 161 CA4th 281.
Akhlaghi v. Superior Court (3/26/2008, G038800) 161 CA4th 561: Dismissal of substantive charges for making false financial statements necessitated dismissal of a conspiracy charge under the same statute. Because the prosecutor’s case rested on defendants’ submission of false social security numbers as overt acts, the submission of those numbers was insufficient to count as making a false financial statement under the statute, and therefore insufficient to support a charge of conspiracy to make a false financial statement.
People v. Garcia (3/27/2008, B196863) 161 CA4th 475: Remand was required for the court to properly exercise its discretion regarding appellant’s lifetime registration requirement for oral copulation with a 14-year old.