CALIFORNIA CASE LAW UPDATE – Selected California Cases
California Supreme Court (March 1-31, 2013)
Felony Murder: Continuous Transaction – Temporary Safety. People v. Wilkins (3/7/2013, S190713) 56 CA4th 333: In cases involving a single perpetrator, when the perpetrator leaves the scene of a felony and reaches a place of temporary safety before a killing occurs, the killing and the felony are not part of one continuous transaction for purposes of the felony-murder rule. The trial court’s instruction on the “continuous transaction” element (CALCRIM 549), in the absence of instruction on the escape rule (CALCRIM 3261), was incomplete and misleading.
Evidence: Psychotherapist-Patient Privilege. People v. Gonzales (3/18/2013, S191240) 56 CA4th 353: Over appellant’s objection that psychological treatment records and testimony of the psychotherapist were protected under the psychotherapist-patient privilege, the prosecution obtained the records and testimony. The trial court determined that the prosecution was entitled to them under the dangerous patient exception to the privilege. The Supreme Court noted that the privilege is not absolute and when a therapist providing treatment to a parolee concludes that the patient is a danger to himself or others and disclosure is necessary to prevent the threatened danger, despite the psychotherapist-patient privilege, the therapist may testify in an SVP proceeding. Here, however, the trial court’s conclusion that the dangerous patient exception applied was based solely on the prosecution’s conclusory offer of proof that the records and testimony of the therapist would show that the therapist believed appellant presented a danger, and no actual proof was presented.
California Supreme Court (March 1-31, 2013)
Grants of Review:
People v. Loew REV GTD (3/13/2013, S207634) 2012 WL 5918717: Briefing deferred pending the decision of the United State Supreme Court in Maryland v. King, cert. granted Nov. 9, 2012, ____ US ____ [184 LEd2d 390; 133 SCt 594] and of this court in People v. Buza REV GTD (10/19/2011, S196200) 197 CA4th 1424, which concern the constitutionality of compulsory collection of biological samples from adult felony arrestees for purposes of DNA testing.
The following cases were transferred for reconsideration in light of People v. Rodriguez (2012) 55 CA4th 1125:
People v. Cabrera REV GTD (3/23/2011, S189414) 191 CA4th 276.
People v. Gonzales REV GTD (12/14/2011, S197036) 199 CA4th 219.
California Courts of Appeal (March 1-31, 2013)
One Strike Law: Constitutionality. People v. Perez (3/4/2013, G046032) ____ CA4th ____, 2013 WL 858507: The One Strike Law, as applied to defendant, who committed the offenses when he was 16 years old, is not unconstitutional.
Theft By False Pretense Not LIO Of Robbery. People v. Powell (3/5/2013, G046265) 214 CA4th 106: PC 532 (theft by false pretenses) is not a lesser included offense of robbery under either the elements test, or as applied to this case, the accusatory pleading test. The erroneous instruction here was prejudicial because it allowed the jury to convict appellant of an offense of which he had no reasonable notice.
Felony Murder Special Circumstance: Constitutionality. People v. Andreasen (3/5/2013, D060039) 214 CA4th 70: The felony-murder special circumstance enhancement, which imposes a sentence of life without the possibility of parole, is not unconstitutionally vague.
Multiplicity: Great Bodily Injury. People v. Wooten (3/6/2013, C067180) 214 CA4th 121: PC 654 does not bar imposition of multiple great bodily injury enhancements where defendant commits divisible criminal acts against one victim during continuous assault.
Prior Police Contacts Not Admissible To Show Knowledge. People v. Hendrix (3/7/2013, C064377) 214 CA4th 216: Conviction for resisting an executive officer by force or violence reversed where trial court improperly admitted prior encounters appellant had with police to prove his knowledge he was dealing with police rather than security guards.
Multiplicity: Firearm And Gang Enhancements. People v. David Vega, et al. (3/7/2013, B237354) 214 CA4th 286: If a felony is violent as a result of both a firearm use allegation and a great bodily injury allegation, PC 1170.1(f) does not prohibit imposition of sentence for both a firearm use and a gang enhancement.
Police Surveillance: Required Showing. In re Marcos B. (3/7/2013, G046268) 214 CA4th 299: The trial court must ensure that a police agency’s claim of privilege for a surveillance location is supported by evidence sufficient to demonstrate that the agency’s need for continued secrecy outweighs that of defendant’s need for disclosure during the course of criminal prosecution.
Multiplicity: Carjacking And Weapon Use Enhancement. People v. Calderon (3/14/2013, B235882) 214 CA4th 656: PC 654 does not bar imposition of sentence on a PC 12022(b)(2) enhancement for using a deadly and dangerous weapon (the automobile) during commission of the carjacking.
Enhancement Wit Prior Felony That Was Reduced To A Misdemeanor And Dismissed. People v. Lucas, II (3/15/2013, G045634) 214 CA4th 707: A prior conviction for a serious felony remains available for use as a future sentence enhancement under PC 667(a), despite subsequent reduction of the serious felony to a misdemeanor under PC 17(b), and dismissal under PC 1203.4.
Prosecutor Misconduct: Misstating Burden Of Proof. People v. Centeno (3/19/2013, E054600) ____ CA4th ____, 2013 WL 1120665: A prosecutor’s poorly worded description of reasonable doubt was not misconduct. The prosecutor explained to the jury that reasonable doubt involves reflecting on the spectrum of possibilities that are supported by the evidence – from those that are impossible, to those that are unreasonable, and then to those that are reasonable and possible. He explained that the jury’s decision has to be in the middle, based on reason. Disagreeing with the analysis in People v. Otero (2012) 210 CA4th 865, the court observed that although the prosecution’s discussion may have implied that reasonable doubt may be met by only a few pieces of evidence, that is not a misstatement of the law and, further, the prosecutor cautioned the jury to look at all the evidence in deciding the case.
Multiplicity: Vehicular Manslaughter And GBI Enhancement. People v. Cook (3/19/2013, E054307) ____ CA4th ____, 2013 WL 1120653: Imposition of an enhancement pursuant to PC 12022.7(a) (personal infliction of great bodily injury) as to the victim who is the subject of a vehicular manslaughter or murder conviction is barred by PC 12022.7(g).
Disclosure Of Juror Identification Information. People v. Cook (3/19/2013, E054307) ____ CA4th ____, 2013 WL 1120653: For disclosure of juror information to support a motion for new trial based on juror misconduct, there must be sufficient showing that misconduct occurred. Here, the use of the toy cars did not constitute misconduct as it was not a prohibited investigation that went beyond the evidence presented at trial.
The Midwifery Act Does Not Shield A Midwife. People v. McCall (3/20/2013, B236269) ____ CA4th ____, 2013 WL 1140380: The Midwifery Act does not shield a midwife from prosecution for uncertified practice of medicine. The court rejected appellant’s contention that she was subject only to misdemeanor prosecution under the specific statute, the Midwifery Act, Business and Professions Code section 2514. Under the Williamson rule (In re Williamson (1954) 43 CA2d 651), where the general statute, standing alone, would include the same matter as the special act, the special act is considered as an exception to or qualification of the general act and prosecution will be under the special act. Here, however, the general and special statutes do not overlap and none of the elements of the general statute correspond to the special statute. Even a licensed midwife is not authorized to practice medicine. (BP 2507(e).)
Gangs: Administrative Segregation. In re Villa (3/20/2013, D060817A) ____ CA4th ____, 2013 WL 1149608: Petitioner improperly placed in administrative segregation because the confidential memorandum did not directly link petitioner to a person who is a validated member or associate of the Mexican Mafia.
Request For Readback Must Be Made By Entire Jury. People v. Vallejo (3/21/2013, B232609) ____ CA4th ____, 2013 WL 1151020: Under PC 1138, the jury may request a readback of testimony, not an individual juror. Here, one juror requested a readback of approximately 230 pages of testimony, which would have taken several hours. The other jurors said they did not want the readback. It was not misconduct to follow the requests of the other jurors.
Solicitation Of Prostitution: Explicit Request For Sex Not Required. People v. Mecano (3/22/2013, B233401) ____ CA4th ____, 2013 WL 1176529: On appeal, Mecano contended that because he never explicitly requested sex for money, there was insufficient evidence to support his conviction for solicitation of prostitution. The appellate court found that Mecano’s words, coupled with his overt acts, constituted sufficient evidence of the offense.
Brady Applies To Preliminary Hearings. Bridgeforth v. Superior Court (People) (3/25/2013, B244661) ____ CA4th ____, 2013 WL 1191181: Agreeing with People v. Gutierrez (2013) 214 CA4th 343, the court held that a defendant has a due process right to disclosure prior to the preliminary hearing of evidence that is both favorable and material. The standard of materiality is whether there is a reasonable probability that disclosure of the evidence would have altered the magistrate’s probable cause determination with respect to any allegation. This right is independent of, and thus not impaired or affected by, the criminal discovery statutes. (See also People v. Gutierrez (3/12/2013, A134695) 214 CA4th 343 [Brady obligation to disclose favorable and material evidence applies to preliminary hearings and is not abrogated by Proposition 115].)
Gang Enhancement: Sufficiency Of Evidence. People v. Prunty (3/26/2013, C071065) ____ CA4th ____, 2013 WL 1200358: There was sufficient evidence to support the gang enhancement despite appellant’s claim that he was a member of a small subset of Nortenos.
Sex Offender Registration: Constitutionality. Shoemaker v. Harris (3/27/2013, B237986) ____ CA4th ____, 2013 WL 1224709: The mandatory sex offender registration requirement under PC 290 does not deny defendant equal protection of the laws.
Baseball Bat As “Billy Club.” People v. Davis (3/28/2013, A131764) ____ CA4th ____, 2013 WL 1246750: No error in instructing the jury pursuant to CALCRIM 2500 without adding a definition of a billy club as a short or small object.
SVP: Challenges Rejected. [NF] People v. McDonald (3/28/2013, G044963) ____ CA4th ____ , 2013 WL 1246831: (1) Sexually Violent Predator Act (SVPA) does not violate equal protection by providing for indeterminate commitment and by placing burden on defendant to obtain release; (2) An indeterminate commitment does not violate due process and is not an improper ex post facto law or cruel and unusual punishment; (3) McDonald’s indeterminate commitment does not violate double jeopardy; (4) The amended SVPA did not violate the single subject rule.
9th Circuit Court of Appeals
(March 1-31, 2013)
Prosecutor Misconduct. United States v. Ruiz (3/26/2013, 9th Cir. No. 10-50211) ____ F3d ____, 2013 WL 1197945: Witness credibility is a jury question, thus prosecutors should avoid telling the jury that if the defendant is innocent, the police must be lying. Where some of the evidence was susceptible of several interpretations, such argument may be an inference unsupported by the record, thus altering the burden of proof.