CALIFORNIA CASE LAW UPDATE – Selected California Cases
California Supreme Court (March 1 – March 31, 2010)
Death Penalty: Instruction On Jurors’ Civic Duty To Set Aside Personal Scruples. People v. Mills (3/1/2010, S059653) 48 C4th 158: California Supreme Court rejects argument that jurors should be instructed that it’s their civic duty to set aside any personal scruples they might have against the death penalty, in order to serve.
Sex Offenders: Procedure For Obtaining Relief from Registration. People v. Picklesimer (3/15/2010, S165680) 48 C4th 330: Persons no longer in custody and whose appeals are final must bring claims for relief under People v. Hofsheier (2006) 37 C4th 1185 (mandatory sex registration violates equal protection following conviction of certain crimes) must pursue their claims by way of petition for writ of mandate in the trial court.
Wobbler: Suspension Of Sentence vs. Suspending Imposition Of Sentence. People v. Feyrer (3/25/2010, S154242) 48 C4th 426: Trial court has the discretion to reduce a wobbler to a misdemeanor despite the defendant’s admission of a great bodily injury enhancement (PC 12022.7(a)), that could attach to a later felony sentence, if imposed. There is a major difference in placing appellant on probation with execution of sentence suspended (see People v. Howard (1997) 16 C4th 1081; People v. Wood (1998) 62 CA4th 1262, 1265-1266 [cannot reduce a matter to a misdemeanor when sentence was executed and then suspended]), and imposition of sentence being suspended, where the court never sentenced appellant and had all of the sentencing options still open. (See People v Glee (2000) 82 CA4th 99, 103; People v. Kunkel (1985) 176 CA3d 46, 55 ][if the court declares the offense to be a misdemeanor, any enhancement applicable only to felonies, such as a 12022.7, is simply not imposed an ceases to have any significance].)
Grants Of Review:
People v. Saleem REV GTD (3/10/2010, S179660) 180 CA4th 254: Is PC 12370, which makes it unlawful for a person previously convicted of a violent felony to possess body armor, void for vagueness on the ground that it fails to provide fair notice of what items cannot legally be possessed?
People v. Anunciation REV GTD (3/18/2010, S179423) 2009 Cal. App. Unpub. LEXIS 10128 and People v. Schwarz REV GTD (3/30/2010, S180445) 2010 Cal. App. Unpub. LEXIS 378: 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.
People v. Cason REV GTD (3/18/2010, S179344) 179 CA4th 1419: Briefing deferred pending decision in People v. Zambia REV GTD (8/19/2009, S173490) 173 CA4th 1221, which presents the following issue: (1) Does the offense of pandering require the specific intent to encourage another person to become a prostitute? (2) Can a defendant be convicted of pandering for offering to act as a pimp for a woman who appears to be already working as a prostitute?
People v. Pasillas REV GTD (3/18/2010, S179190) 2009 Cal. App. Unpub. LEXIS 9386: Briefing deferred pending decision in People v. Mena REV GTD (8/26/2009, S173973) 173 CA4th 1446, which presents the following issue: Did defendant forfeit his right to appeal the denial of his request for a physical identification lineup prior to the preliminary hearing (see Evans v. Superior Court (1974) 11 C3d 617) because he failed to seek immediate review of the ruling by filing a petition for writ of mandate?
People v. Jones REV GTD (3/24/2010, S179552) 2009 Cal. App. Unpub. LEXIS 9766: Did the trial court properly impose concurrent sentences for being a felon in possession of a firearm (PC 12021(a)(1)) and carrying a loaded, concealed firearm (PC 12025(b)(6)) under the present circumstances? (See PC 654; People v. Harrison (1969) 1 CA3d 115, 121-122.)
People v. Lowery REV GTD (3/30/2010, S179422) 180 CA4th 630: Is PC140(a), which makes it a crime to threaten a victim or witness who provided assistance to law enforcement, unconstitutionally overbroad, because it fails to require either the specific intent to retaliate against the victim with the present ability to do so or the specific intent that the threat be communicated to the potential victim?
The following case was dismissed in light of People v. Gonzalez (2008) 43 C4th 1118 and People v. Rodriguez (2010) 47 C4th 501:
People v. Moore (5/14/2008, S161216) 2008 Cal. App. Unpub. LEXIS 1003
The following case was dismissed in light of People v. Kelly (2010) 47 C4th 1008:
People v. Phomphakdy REV GTD (10/28/2008, S166565) 165 CA4th 857
The following case was transferred for reconsideration in light of People v. Kelly (2010) 47 C4th 1008:
People v. Wood REV GTD (8/13/2008, S164211) 2008 Cal. App. Unpub. LEXIS 3633
California Courts of Appeal (March 1 – March 31, 2010)
Plea Agreement Precluding Codefendant Testimony As Violation Of Right To Present A Defense. People v. Treadway (3/1/2010, C059069) 182 CA4th 562: A plea agreement prohibiting codefendants from testifying at defendant’s trial violated his right to present a defense.
Allocution. People v. Nitschmann (3/3/2010, B210291) 182 CA4th 705: Although a defendant has a right of allocution prior to sentencing, the judge has no sua sponte duty to offer the defendant allocution and defendant forfeits the right if he does not offer to testify.
GBI: Defendant Must “Directly” Cause The Injury. People v. Warwick (3/4/2010, G041970) 182 Cal. App. 4th 788: Under PC 12022.7(d) (personal infliction of great bodily injury on a child under five years of age), defendant must be the direct rather than the proximate cause of the injury and directly, rather than through an intermediary, cause the injury.
Excluded Gang Evidence May Not Be Presented During Cross-Examination. People v. Memory (3/5/2010, C054422) 182 CA4th 835: Where the trial court properly excludes testimony from an expert as to gang membership, it is an abuse of discretion to then allow the evidence to be presented by granting the prosecution “wide latitude” on cross-examination.
Appeals: No Disentitlement For Deported Appellant. People v. Puluc-Sique (3/8/2010, A123451) 182 CA4th 894: Appellate court’s inherent power to dismiss appeal of criminal defendant who is fugitive from justice (appellate disentitlement) not extended to defendant who has been deported.
Homicide: Failure To Allege First Degree Attempted Murder. People v. Arias (3/10/2010, B215566) 182 CA4th 1009: Prosecutor’s failure to allege that attempted murders were willful, deliberate and premeditated requires life sentences for first degree attempted murder be set aside and defendant be resentenced to determinate term. No forfeiture, because under People v. Mancebo (2002) 27 C4th 735, imposition of sentencing enhancement based on unpled enhancement allegation amounts to unauthorized sentence.
Killing Of Accomplice By Victim As First Degree Murder: Defendant Must Have Premeditated And Deliberated. People v. Concha (3/11/2010, B195197) 182 CA4th 1072: The California Supreme Court held in this case that a defendant who commits an attempted murder may also be liable for first degree murder when his accomplice is killed by the intended victim during the course of the attempted murder, but concluded that the trial court erred when it failed to instruct the jury that to be found guilty of first degree murder, the defendant must personally have acted wilfully, deliberately, and with premeditation when he committed the attempted murder. It then remanded the matter to the appellate court to determine whether that instructional error prejudiced appellants with respect to their first degree murder convictions. However, the error was harmless because a rational jury would have found beyond a reasonable doubt that each defendant deliberated and premeditated the attempted murder.
MDO: Implied Threat – Possession Of Molotov Cocktail. People v. Townsend (3/15/2010, B216325) 182 CA4th 1151: Possession of a Molotov cocktail is an offense involving an implied threat to use force or violence within the meaning of the Mentally Disordered Offender Act (PC 2962).
Statute of Limitations: Remand to Trial Court. People v. Lynch (3/16/2010, D053727) 182 CA4th 1262: Case remanded to trial court to determine whether counts other than attempted murder, which on the face of charging instrument, were not charged within statute of limitations, were nevertheless valid because the statute may have been tolled by the issuance of a warrant. Defense counsel failed to object on limitations grounds in trial court, so court never made a ruling. Issue not forfeited, as it may be raised at any time. (People v. Williams (1999) 21 C4th 335.)
ADW Not Lesser Included Offense Of PC 4500. People v. Milward (3/22/2010, C058326) 182 CA4th 1477: PC 245(a)(1) (assault with a deadly weapon) is not included in PC 4500 (assault with a deadly weapon by a life prisoner) and a defendant can be convicted of both.
SVPA: Trial Of Incompetent Defendant Violates Due Process. Wilson v. Los Angeles County Superior Court (3/22/2010, B216212) 182 CA4th 1457: Pursuant to the due process clause of the California and Federal Constitutions, an initial SVPA commitment trial may not proceed while the defendant is incompetent.
Instructing Jurors On Failure Of Witness To Answer. People v. Sanders (2/24/2010, published 3/23/2010, B206569) 182 CA4th 1626: Where a party is deprived of the benefits of cross-examination of a witness by refusal of the witness to answer, whether the trial court strikes the testimony or instructs the jury that the refusal can be a factor in assessing credibility depends on whether the testimony involves collateral matters.
Faretta: No Right To Self-Representation On SVPA Appeal. People v. Sokolsky (3/23/2010, B212437) 182 CA4th 1568: An appellant has no constitutional right to self-representation on appeal from an SVPA commitment.
Sex Offender Registration: Definition Of Residence. People v. Gonzales (2/23/2010 published 3/24/2010, E046800) 183 CA4th 24: CALCRIM 1170 adequately defines the “residence” element of PC 290; and the definition of residence in PC 290.01(g) is not unconstitutionally vague and ambiguous. Appellant registered as a sex offender at one location in Fontana but evidence presented at trial indicated that he spent considerable time at a second address and that he had not registered this second address. Appellant was convicted of failure to register under PC 290(g)(2). On appeal, he argued that CALCRIM 1170 inadequately defined the “residence” element of the registration statute. The instruction requires proof that defendant knows of the duty to register every residence in which defendant regularly resides regardless of the number of days and nights he spends there. The court disagreed with appellant, finding that the meaning of the term “residence” as defined in PC 290.011(g) is a commonly understood term and, as such, does not require a separate sua sponte definition by the court. The court also found that the definition of “residence” in PC 290.011(g) is not unconstitutionally vague and ambiguous as it is the common meaning of residence understandable by the average person or law enforcement agency.
Child Molestation: Uncharged Offenses Against Adult Women. People v. Escudero (3/30/2010, C060342) 183 CA4th 302: Trial court did not abuse discretion in admitting uncharged offenses against adult women to prove propensity to commit sexual offense against seven-year old. (EC 1108(a); People v. Falsetta (1999) 21 C4th 903.)
Use Of A Suppressed Statement In Weighing Admission Of A Prior. People v. Johnson (3/30/2010, C055139) 183 CA4th 253: The defense wanted to present evidence of a prior incident to show third party culpability, that someone else was committing these robberies. The defendant had confessed to that prior, but the confession had been suppressed as violative of Miranda. The trial court barred the defense from presenting evidence of the prior robbery, relying heavily on the suppressed confession. In exercising its EC 352 weighing function, the court properly considered the suppressed confession. The court also upheld exclusion of the defendant’s exculpatory statement to his girlfriend. The DA had been permitted to present the defendant’s inculpatory statement to that girlfriend. The court says that the part and whole evidence rule (EC 356) didn’t compel admission of the exculpatory statement, because it was made at a different time than the inculpatory one.
Sex Offenses : Consensual Sex With Confined Adult. People v. Bojorquez (3/30/2010, G040702) 183 CA4th 407: Sexual activity with person in detention facility, prohibited by PC 289.6(a)(2), applies to community work release program.
Weapons: Concealed And Loaded Weapon. People v. Hall (3/30/2010, C060359) 183 CA4th 380: Carrying loaded firearm in public place (PC 12031(a)(2)(F)) is not necessarily included offense of carrying concealed firearm (PC 12025(b)(6)). Loaded firearm offense has additional element: it must be carried in a public place. A person carrying a loaded, concealed firearm in a private place would violate PC 12025 but not 12031.