CALIFORNIA CASE LAW UPDATE – Selected California Cases
California Supreme Court (March 1-31, 2011)
There were no relevant California Supreme Court decisions for March.
Grants of Review
People v. Ballard REV GTD (3/2/2011, S190106) 2010 Cal. App. Unpub. LEXIS 10024: Briefing deferred pending decision in People v. Mesa REV GTD (10/27/2010, S185688) 186 CA4th 773, which presents the following issue: Does PC 654 bar the imposition of separate sentences for the offense of active participation in a criminal street gang in violation of PC 186.22(a), and for the crimes used to prove one element of that offense – that the defendant has promoted, furthered, and assisted felonious criminal conduct by members of the gang?
In re J.L. REV GTD (3/2/2011, S189721) 190 CA4th 1394: Briefing deferred pending decision in People v. Mosley (3/24/2009, S187965) 188 CA4th 1090, which includes the following issue: Does the discretionary imposition of lifetime sex offender registration, which includes residency restrictions that prohibit registered sex offenders from living “within 2000 feet of any public or private school, or park where children regularly gather” (PC 3003.5(b)), increase the “penalty” for the offense within the meaning of Apprendi v. New Jersey (2000) 530 US 466, and require that the facts supporting the trial court’s imposition of the registration requirement be found true by a jury beyond a reasonable doubt?
People v. Favor REV GTD (3/16/2011, S189317) 190 CA4th 770: In order for an aider and abettor to be convicted of attempted willful, deliberate and premeditated murder by application of the natural and probable consequences doctrine, must a premeditated attempt to murder have been a reasonably foreseeable consequence of the target offense or offenses, or is it sufficient that an attempted murder would be reasonably foreseeable?
People v. Shockley REV GTD (3/16/2011, S189462) 190 CA4th 896: Is battery a lesser included offense of committing a lewd act with a child under 14 years of age?
People v. Atencio REV GTD (3/16/2011, S189461) 190 CA4th 695: Briefing deferred pending decision in People v. Jones REV GTD (3/24/2010, S179552) 2009 Cal. App. Unpub. LEXIS 9766, which presents the following issue: 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. Cornett REV GTD (3/23/2011 , S189733) 190 CA4th 845: Does PC 288.7, which proscribes specified sexual conduct with a child “10 years of age or younger,” apply only to children who are either less than 10 years of age or exactly 10 years of age and not a day more, or does it include any child who has reached the age of 10 years until the child’s 11th birthday?
People v. Gonzalez REV GTD (3/23/2011, S189856) 190 CA4th 968: (1) Was the evidence sufficient to convict defendant of first-degree provocative act murder? (2) Was the instructional error in failing to tell jurors that defendant had to personally premeditate an attempted murder in order to be guilty of first-degree provocative act murder harmless beyond a reasonable doubt?
People v. Wyatt REV GTD (3/23/2011, S189786) 2010 Cal. App. Unpub. LEXIS 9767: Did the trial court prejudicially err by failing to instruct the jury on the court’s own motion regarding simple assault (PC 240) as a lesser included offense of assault on a child by means of force likely to produce great bodily injury, resulting in death (PC 273ab(a))?
People v. Cabrera REV GTD (3/23/2011, S189414) 191 CA4th 276: Briefing deferred pending decision in People v. Rodriguez REV GTD (1/12/2011, S187680) 188 CA4th 722, which presents the following issue: May an active participant in a criminal street gang be found guilty of violating PC 186.22(a), when, acting entirely alone, he commits a felony, and there is no other evidence indicating the crime had anything to do with the gang?
The court ordered review dismissed in Birotte v. Superior Court REV GTD (11/10/2009, S176965) 177 CA4th 559.
The court ordered review in Putnam v. Superior Court EV GTD (2/22/2006,S139419) 140 CA4th 567, severed from Stark v. Superior Court REV GTD (9/13/2006, S145337) 140 CA4th 567 and ordered review in Putnam dismissed.
Review in the following case was dismissed in light of People v. Soto (2011) 51 C4th 229:
People v. Tepetitla-Cruz REV GTD (7/28/2010, S182843) 183 CA4th 1451.
The following case was transferred for reconsideration in light of Catlin v. Superior Court (2011) 51 C4th 300:
People v. Tepetitla-Cruz REV GTD (7/28/2010, S182843) 183 CA4th 1451.
Baca v. Superior Court REV GTD (11/23/2010, S186253) 187 CA4th 1534.
In re S.W. REV GTD (1/26/2011,S187897) 2010 Cal. App. Unpub. LEXIS 7726. In this case in which review was previously granted, the court ordered briefing deferred pending decision in People v. Mosley (3/24/2009, S187965) 188 CA4th 1090, which includes the following issue: Does the discretionary imposition of lifetime sex offender registration, which includes residency restrictions that prohibit registered sex offenders from living “within 2000 feet of any public or private school, or park where children regularly gather” (PC 3003.5(b)), increase the “penalty” for the offense within the meaning of Apprendi v. New Jersey (2000) 530 US 466, and require that the facts supporting the trial court’s imposition of the registration requirement be found true by a jury beyond a reasonable doubt?
People v. Mosley (3/24/2009, S187965) 188 CA4th 1090. In this case in which review was previously granted, the court ordered the parties to brief and argue the following issues in addition to the issue set forth in the People’s petition for review: (1) Does PC3003.5(b), validly create a misdemeanor offense subject to violation by all persons required to register for life pursuant to PC 290 et seq., regardless of their parole status? (2) If PC 3003.5(b), is not separately enforceable as a misdemeanor offense, does that section nevertheless operate to establish the residency restrictions contained therein as a valid condition of sex offender registration pursuant to PC 290 et seq.?
California Courts of Appeal (March 1-31, 2011)
Making Annoying Phone Calls: Threatening Or Lewd Language Required. People v. Powers (3/2/2011, B218687) 193 CA4th 158: The crime of making annoying phone calls (PC 653m(a)), requires proof of the use of threatening language towards the recipient, or the use of obscenities in a lewd manner.
Pitchess: Record On Appeal. People v. Rodriguez (3/7/2011, D055704) 193 CA4th 360: When appellate counsel raises a Pitchess claim, it is counsel’s responsibility to ensure that the Pitchess materials are part of the record. In the trial court, appellant filed a motion seeking discovery of police officer personnel records (Pitchess v. Superior Court (1974) 11 C3d 531 (Pitchess).)
Examples Used To Illustrate Proof Beyond A Reasonable Doubt. People v. Moore (3/17/2011, E048982) 193 CA4th 746: The trial judge here “explained” reasonable doubt in three ways. First, the judge used the jigsaw puzzle example disapproved of in People v. Katzenberger (2009) 178 CA4th 1260. The majority says that example here wasn’t as bad as the one in Katzenberger. The judge also gave an example about whether the flag in the courtroom was an American flag. Next, the judge gave a weather example; whether it would be below 50 degrees in Riverside in August. The majority has no problem with any of these. But see the dissent which maintained that these examples allow snap judgments on what proof beyond a reasonable doubt is, undermining the requisite deliberative process. The dissent also notes that use of these examples lowers the burden of proof.
Admission Of Document Proving Gun Was Not Registered Violates Crawford. People v. Sanchez (3/23/2011, H035075) 2011 Cal. App. LEXIS 330: The DA proved that the defendant wasn’t the registered owner by submitting a certified document from the Dept. of Justice saying that the gun wasn’t registered to the defendant. This is explicitly covered by Melendez-Diaz; it’s a testimonial document and thus admission of it violated confrontation.
Unenclosed Balconies And Residential Burglaries. People v. Yarbrough (3/23/2011, B222399) 2011 Cal. App. LEXIS 327: Based on dicta from the California Supreme Court (People v. Valencia (2002) 28 C4th 1) entry into an unenclosed balcony can’t qualify as burglary; compare People v. Jackson (12/8/2010, B218372) 190 CA4th 918.
Pregnancy Is Great Bodily Injury. People v. Meneses (3/24/2011, G043037) 2011 Cal. App. LEXIS 340: A GBI enhancement (PC 12022.8) was properly based on pregnancy because the victim “endured the self-evident trauma and suffering that accompanies a pregnancy,” and was in delivery for a day.
Separate Juries For Guilt and Penalty. People v. Superior Court (Brim) (3/24/2011, B229701) 2011 Cal. App. LEXIS 336: The trial court granted separate juries for the guilt and penalty phases in this death penalty case. The reviewing court found that an extended delay in order to prepare for the penalty phase, which prejudices the non-capital co-defendant, isn’t good cause. Nor is the defense’s desire to voir dire guilt and penalty phase juries differently. Nor the fact that death-qualified guilt juries are more likely to convict. The only thing that can qualify as good cause is a showing that the jury would be unable to perform their function.
Statements Of Co-Conspirators And Non-Testimonial Statements. People v. Gann (3/24/2011, D055431) 2011 Cal. App. LEXIS 334: Hearsay statements, the pre-arrest statements of a sister, were admissible at the trial of her brother based on their conspiracy to kill their stepfather and to make the murder look like a home-invasion robbery by a masked intruder.
The Change In The Petty With A Prior Law Is Retroactive. People v. Vinson (3/28/2011, F059302) 2011 Cal. App. LEXIS 357: Effective Sept. 9, 2010, PC 666 was amended to provide that petty theft is a wobbler if the defendant has three prior qualifying theft offenses, not just one. But one prior conviction is enough if the defendant has to register as a sex offender or has a prior serious or violent felony. This change cannot be applied to cases not final prior to its enactment. (See In re Estrada (1965) 63 C2d 740.)
Kidnap: When Aiding And Abetting Instructions Are Required. People v. Delgado (3/29/2011, B220174) 2011 Cal. App. LEXIS 364: The charge of kidnapping to commit robbery required instructions on aiding and abetting because Delgado was not the one who drove the car which transported the kidnapping victim.
“Pocket Bike” As Motor Vehicle. People v. Varela (3/29/2011, B221424) 011 Cal. App. LEXIS 365: There was no error by instructing the jury that a pocket bike is a motor vehicle as a matter of law.
Sentencing In Violation Of A Plea Agreement. People v. Kim (3/30/2011, H034868) 2011 Cal. App. LEXIS 370: If a court cannot lawfully impose a sentence, without a significant variance from the plea bargain, then at remand the People may amend the indictment to eliminate the mandatory sentencing enhancements or offer the defendant an opportunity to withdraw his plea.
U.S. Supreme Court
(March 1-31, 2011)
Reviewing State Statute Or Rule In Federal Court. Skinner v. Switzer (3/7/2011, No. 09-9000) ____ US ____ [179 LEd2d 233; 131 SCt 1289]: A statute or rule governing a state-court decision may be challenged in a federal action as long as review of a ruling in a particular case is not sought.
9th Circuit Court of Appeals
(March 1-31, 2011)
Failure To Advise Of The Immigration Consequences Of A Plea. U.S. v. Bonilla (3/11/2011, 9th Cir. No. 09-10307) 2011 U.S. App. LEXIS 4760: The court errs in denying defendant’s motion to withdraw his guilty plea based on inadequate legal advice as to immigration consequences.
Brady/Giglio. U.S. v. Kohring (3/11/2011, 9th Cir. No. 08-30170) 2011 U.S. App. LEXIS 4763: The prosecution violates a defendant’s due process rights by withholding material exculpatory/impeaching evidence in violation of Brady v. Maryland (1963) 373 US 83, and Giglio v. U.S. (1972) 405 US 150.
Apprendi: Application To Federal Enhancement That Is Circumstance Dependent. U.S. v. Doss (3/15/2011, 9th Cir. No. 07-50334) 630 F3d 1181 (amended at 2011 U.S. App. LEXIS 5225): Since part of the federal enhancement was circumstance-dependent, it required proof beyond a reasonable doubt.