CALIFORNIA CASE LAW UPDATE – Selected California Cases
California Supreme Court (March 1 – March 31, 2009)
People v. Chun (3/30/2009, S157601) 2009 Cal. LEXIS 3184: Second-degree Felony Murder and Merger: “When the underlying felony is assaultive in nature, [based on its elements, not the facts of the case] the felony merges with the homicide and cannot be the basis of a felony-murder instruction.”
Grants Of Review:
People v. Mosley REV GTD (3/18/2009, S169411) 168 CA4th 512: Briefing deferred pending decision in In re J. (E.) (10/10/2007, S156933) 2007 Cal. LEXIS 10947, which concerns entitlement to relief from the residency restrictions imposed by PC 3003.5 on persons required to register as sex offenders on the ground the statute violates the ex post facto clauses of the state and federal Constitutions, has been impermissibly retroactively applied, constitutes an unreasonable parole condition, impinges on substantive due process rights, and is unconstitutionally vague.
Galindo v. Superior Court REV GTD (3/25/2009, S170550) 169 CA4th 1332: Does a criminal defendant have a right to obtain Pitchess discovery (Pitchess v. Superior Court (74) 11 C3d 531) prior to the preliminary hearing?
People v. Martinez REV GTD (3/25/2009, S170016) 169 CA4th 199: Briefing deferred pending decision in People v. Medina REV GTD (10/31/2007, S155823) 153 CA4th 610, which presents the following issue: Did the Court of Appeal err in holding the evidence insufficient to support defendants’ convictions for murder and attempted murder under the natural and probable consequences doctrine based on the target offenses of assault and battery?
DISPOSITION
The following case was transferred for reconsideration in light of In Re Gomez (2009) 45 C4th 650:
In re Saade (8/20/2008, S164595) 162 CA4th 1391.
California Courts of Appeal (March 1 – March 31, 2008)
People v. Vang (3/6/2009, C058020) 171 CA4th 1120: No error to deny modification of CALCRIM 226 (standard instruction on witness credibility), which would have informed jury it could reject child molest victim’s account if she testified inaccurately even though she did not deliberately lie. (But see FORECITE F 105.7 Inst 1.)
People v. Em (3/3/2009, G039806) 171 CA4th 964: Cruel And Unusual Punishment: See dissent of Justice Moore.
People v. Babaali (3/3/2009, B206165) 171 CA4th 982: Sexual Battery Is Not LIO Of False Representation: PC 243.4(c) makes it a crime to make a fraudulent representation that results in a victim submitting to an intimate touching. Sexual battery (PC 243.4(e)(1)) requires a touching against the will of the victim, so it can’t be a necessarily lesser-included offense within 243.4(c).
People v. Fuentes (3/6/2009, F053785) 171 CA4th 1133: Motive Instruction: There is no conflict between CALCRIM 370 which instructs the jury that proof of motive is not necessary to show guilt, and the instructions for the substantive gang offense and gang enhancements which require proof of intent.
People v. Roa (3/9/09, B201676): 171 CA4th 1175: Weapons – Firearm Possession Based On Out Of Court Statement: Victims’ statements to the police during the initial investigation indicated that the defendant used a gun during the carjacking, and was not the driver of the car who did not have the gun, was admissible for the truth of such statements, under EC 1235, and pursuant to People v. Cuevas (95) 12 C4th 252, 267 [pertaining to out of court statements inconsistent with trial testimony], and, when credited by the jury, constituted substantial evidence of the defendant’s use of a firearm.
People v. Dean (3/10/2009, E041515) 171 CA4th 1252: Sexually Violent Predators – Hearsay In Expert’s Testimony: In a jury trial for recommitment under the Sexually Violent Predator Act, WI 6600 permits the use of multiple-level hearsay.
People v. Camacho (3/10/2009, B207048) 171 CA4th 1269: Verdict Form – Clerical Error: Where the jury’s intent to convict on a specific offense is clear, a clerical error on the verdict form misidentifying the offense does not affect the validity of the verdict.
In re E. S. (3/10/2009, A118547) 171 CA4th 1219: Counsel – Ineffective Assistance Not Excused Due To Caseload: A defendant, including a juvenile at a WI 602 jurisdictional hearing, is constitutionally entitled to reasonably competent assistance of an attorney who adequately investigates all relevant evidence, is conversant with pertinent authorities, and who has adequate time and resources available to him.
People v. Harris (3/11/2009, D052257) 171 CA4th 1488: Jury Findings On Whether Transportation Was For Personal Use Or Sale: A defendant convicted of transportation of cocaine, with a jury finding that the transportation is for personal use, must receive Proposition 36 probation, assuming none of the disqualifying factors under PC 1210.1(b) exist. Defense counsel had the judge to give the jury a special verdict asking the jury to find whether the transportation was for personal use or sale, and to make that finding beyond a reasonable doubt. The jury found beyond a reasonable doubt that the transportation was for personal use. The judge nevertheless sent this def. to prison. The Court of Appeal reversed, holding that a mere acquittal of a “for sale” charge might only reflect lack of proof beyond a reasonable doubt, but here the jury affirmatively found beyond a reasonable doubt that the transportation wasn’t for sale.
People v. Garcia (2/25/2009 pub’d 3/11/2009, C054729) 171 CA4th 1649: Doyle: The admission of evidence concerning defendant’s refusal to have his picture taken and continue interview was error.
People v. Williams (3/12/2009, F053858) 171 CA4th 1667: Duty Of Sex Offenders To Register: PC 290 requires a defendant who is required to register as a sex offender to register within five working days of coming into, or changing his residence within, any city or county in California. The Court of Appeal rejected the claim that this duty is triggered only when a defendant stays at a residence five or more consecutive days. They rule that the duty to register arises when the defendant enters a jurisdiction and ends when he leaves the jurisdiction.
People v. Grimes (3/16/2009, C058369) 2009 Cal. App. LEXIS 362: Appeals – Superior Court’s Clerk’s Responsibilities: The clerk’s two-year delay in mailing the notice of appeal was not prejudicial. Appellant timely filed a notice of appeal on November 23, 2005. The clerk’s office did not mail the notice of appeal to the Court of Appeal until March 11, 2008, along with a note that said it had been “filed and forgotten” and that appellant would “likely be out of prison by now.” Because the appellate court affirmed the judgment, it found that appellant had not been prejudiced by the delay. It noted, however, that a clerical mistake resulting in a delayed appeal will not always be without consequences where, if an appeal has merit, the delay could mean a person suffered unwarranted incarceration or collateral consequences.
People v. Maldonado (3/16/2009, H031506) 2009 Cal. App. LEXIS 358: (1) Jurisdiction — To Try Defendant For Felony On Complaint: The court had jurisdiction where the parties stipulated to the complaint being deemed an information.
(2) Character Evidence – Poverty: Counsel was not ineffective for failing to object to evidence that appellant was unemployed and on welfare. Appellant also contended that defense counsel rendered ineffective assistance for failing to object to evidence that appellant was unemployed and on welfare.
In re T.B. (2/26/2009, Pub’d 3/16/2009, G039990) 172 CA4th 125: Weapons – Folding Knife In Multi-Tool: A “multi-tool” with several features in addition to small knife fell within the list of prohibited weapons for purposes of WI 626.10(a).
People v. Earle (3/19/2009, H031525) 172 CA4th 372 Joinder – Reversal For Error In Joining:
Trial court erred in joining for trial two separate cases, one misdemeanor indecent exposure, and one felony sexual assault, where charges arose from entirely distinct and dissimilar incidents with no historical connection to each other, and where proof of the misdemeanor was strong but the felony sexual assault weak. “This led to a grossly unfair trial in which the prosecutor explicitly urged the jury to convict defendant of the assault based upon his commission of the indecent exposure, which the prosecutor compared to DNA evidence and ‘modus operandi,’ and cited as proof that defendant was a ‘predator’ and ‘scary guy.’ Indeed the prosecutor relied on a variety of spurious legal theories to place the indecent exposure before the jury, as evidence of the assault, as often and emphatically as possible.”
People v. Henry (3/23/2009, B206420) 2009 Cal. App. LEXIS 416: Vehicular Burglary – Entry Of Hood Area: Entry into the hood area of a locked vehicle constitutes vehicle burglary (PC 459). The appellate court rejected appellant’s argument that entry into the hood area does not constitute vehicle burglary, finding that under rules of statutory construction for vehicle burglary, one commits a vehicle burglary when he enters it as appellant did. If the Legislature had intended the burglary statute not to include appellant’s activity, it would have stated that a person committed the crime only if he entered the passenger compartment of a locked vehicle.
People v. Uecker (3/24/2009, C058061) 2009 Cal. App. LEXIS 414: Stalking – Sufficiency Of Evidence And Admission Of Sex Offender Status: Evidence sufficient to support the three elements of stalking: (1) following or harassing another person; (2) making a credible threat; and (3) intending to place the victim in reasonable fear for her safety. Victim’s knowledge that he was a registered sex offender was relevant to show why she would take his threats seriously.
People v. Pierce (3/24/2009, C053995) 2009 Cal. App. LEXIS 412:Abiding Conviction Is Settled, Fixed, Lasting And Permanent Belief: Prosecutor argued, in response to defense counsel’s argument that abiding conviction meant some sort of permanent belief, that the instruction did not say anything about the permanence of the belief. Court held there was no reasonable likelihood the jury applied the remarks in an objectionable fashion. (People v. Samayoa (97) 15 C4th 795, 841.) The court noted that “abiding conviction” is one that is “settled and fixed” (Hopt v. People v. Utah (1887) 120 US 430, 439) and “lasting [and] permanent” (People v. Brigham (79) 25 C3d 283, 290), but found that the terms are self-evidence and do not require definition.
Molenda v. DMV (3/27/2009, H032196) 2009 Cal. App. LEXIS 440: Drunk Driving – Hearsay At DMV Hearings: Blood test results introduced at administrative hearing were not business records under EC 1280 because the report was not “made at or near the time of” the testing. The report was completed one week after the laboratory tested the blood. Presumption that official duty was regularly performed does not apply since no statute or regulation imposes a timeliness duty with regard to recording of test results.
People v. Fisher (3/27/2009, B207595) 2009 Cal. App. LEXIS 442: Mentally Disordered Offenders – Absence From Hearing On Forcible Drugging: Trial court erred in conducting hearing on forcible administration of psychotropic drugs without petitioner’s presence
People v. Ramirez (3/30/2009, G038125) 2009 Cal. App. LEXIS 470: Substantive Gang Crime Requires Crime to Be for the Gang: The substantive gang crime, PC 186.22(a) applies to any person who actively participates in a criminal street gang and who willfully assists in any felonious criminal conduct by members of that gang. The any felonious conduct element requires gang-related felonious criminal conduct.
Rivera v. Illinois (3/31/2009, No. 07-9995) ___ US ____ [____ LEd2d ____; ____ SCt ____; 2009 U.S. LEXIS 2495]: Standard Of Prejudice – Denial Of Peremptory Challenge: Provided that all jurors seated in a criminal case are qualified and unbiased, the Due Process Clause does not require automatic reversal of a conviction because of the trial court’s good-faith error in denying the defendant’s peremptory challenge to a juror. Defendant’s murder conviction is therefore affirmed.
U.S. Supreme Court (March 1-31, 2009)
Knowles v. Mirzayance (3/24/2009, No. 07-1315) ___ US ___ [173 LEd2d 251; ___ SCt ___; 2009 U.S. LEXIS 2329]: IAC – Strickland Standard: In an IAC claim, the proper measure of attorney performance is reasonableness under prevailing professional norms (Strickland v. Washington (84) 466 US 688) and counsel is not required to raise every available nonfrivolous defense simply because there is “nothing to lose” by doing so.
9th Circuit (March 1-31, 2009)
United States v. McFall (3/9/2009, 9th Cir. No. 07-10034) 2009 U.S. App. LEXIS 5448: Extortion – Insufficient Evidence: Evidence to support attempted extortion and conspiracy to commit extortion insufficient to support 18 USC 1951 convictions. To violate the Hobbs Act extortionist must attempt to appropriate the victims’s property. It is not enough to gain some speculative benefit by hindering a competitor.
United States v. Krstic (3/10/2009, 9th Cir. No. 08-30022) 2009 U.S. App. LEXIS 5374: Immigration – Possession Of Valid Document By Fraud: Possession of valid “green card” obtained by making a false statement is a violation of 18 USC 1546(a).
United States v. Driggers (3/18/2009, 9th Cir. No. 07-30190) 2009 U.S. App. LEXIS 5552: Federal Homicide – Travel With Intent To Murder For Hire: The intent requirement of 18 USC 1958, which prohibits using interstate commerce facilities in the commission of murder-for-hire, is that the defendant have a murderous intent when he causes another person to travel across state lines. Jury instruction did not adequately explain the intent, and would have allowed jury to convict even if it found that defendant did not form murderous intent until after travel was completed.
United States v. Smith (3/24/2009, 9th Cir. No. 05-50375) 2009 U.S. App. LEXIS 6064: Weapons – Defective Instruction: Sitting en banc (Berzon, Schroder, Reinhart, Wardlaw and Paez, JJ. dissenting) held that there was a “reasonable likelihood” jury instructions “misled” the jury into finding they did have to find beyond a reasonable doubt that the defendant used a deadly weapon.
