CALIFORNIA CASE LAW UPDATE – Selected California Cases
California Supreme Court (May 1-May 31, 2008)
In re Miranda (5/5/2008, S058528) 43 C4th 541: Habeas corpus relief granted from capital sentence where the only evidence introduced in aggravation during the penalty phase of petitioner’s trial concerned an unrelated murder two weeks before the capital crime to which petitioner pleaded guilty, and at the time of petitioner’s capital trial, substantial evidence supported the court referee’s finding that the prosecution possessed a letter from a third party recounting that a witness who had received leniency in exchange for his testimony against petitioner had confessed to the murder, which was also corroborated by other evidence, but that the prosecution had neither disclosed the existence of the letter to petitioner nor the plea deal and the witness protection funds the witness received; this was a violation of Brady v. Maryland (63) 373 US 83, 88, and Kyles v. Whitley (95) 514 US 419, 438 [131 LEd2 490; 115 SCt 1555] [seemingly also indicates that the defendant can try to prove his case by cross-examining the witness on what the cops did not do or what a witness did or did not do; therefore the prosecution needs turn over the name of witnesses; accord People v. Seaton (2001) 26 C4th 598). Also, a previous ineffective assistance of counsel challenge didn’t waive the attorney-client privilege forever, but only created an exception to the privilege in that specific proceeding.
People v. Williams (5/5/2008, S052520) 43 C4th 584: (1) Trial court did not err in admitting prior testimony from a prior hearing of a witness who refused to answer questions at trial due to self-incrimination concerns because prosecution rendered witness “unavailable” by refusing to grant immunity. The court reviewed a number of cases pertaining to when it is proper for a witness to assert his 5th Amendment rights (see People v. Seijas (2005) 36 C4th 291, 304; People v. Cudjo (93) 6 C4th 587, 617; see also Mitchell v. United States (99) 526 US 314, 321.) (2) Merely because a witness fails to invoke the privilege at the preliminary hearing, does not preclude him from invoking the privilege at trial. (See People v. Seijas, supra, 36 C4th at p. 303.) (3) Where it was undisputed that witness was present at scene of crime, but there was contradictory evidence as to whether he participated or intended to participate in crime, trial judge did not err in rejecting proposed instruction that witness was an accomplice as a matter of law.
Haraguchi v. Superior Court (5/12/2008, S148207) 43 C4th 706: Recusal of a prosecutor for alleged conflicts of interest, arising out of her authoring a novel with circumstances similar to a case she was trying, is reversed.
People v. Superior Court (Humberto S.) (5/12/2008, S149123) 43 C4th 737: Lower court abused its discretion by granting the defense motion to recuse the prosecutor based on the legally erroneous conclusion that it was a conflict of interest for the prosecutor to advocate quashing of subpoenas for the minor victim’s psychiatric records on the ground that the victim had not been afforded protections to which she was entitled by statute after victim’s father, who was defendant’s brother, had consented to disclosure. The prosecutorial participation in third-party subpoena hearings is not prohibited by statute. The prosecutor may argue a position that coincides with the interests of a third party where there is no formal representation of any third party, no corresponding duty of loyalty, and no divided loyalty or structural incentive potentially at odds with prosecutor’s duty of fairness to the defendant.
Hollywood v. Superior Court (5/12/2008, S147954) 43 C4th 721: The prosecutor’s acknowledged actions in turning over his case files to the filmmaker without so much as an attempt to screen them for confidential information, while “highly inappropriate and disturbing,” did not require recusal where there were no findings that this omission in fact resulted in the illegal or unethical disclosure of confidential documents, or that it created an actual conflict of interest.
People v. Delgado (5/29/2008, S141282) 43 C4th 1059: In determining whether a prior conviction was for a serious felony, where the prior conviction was under a statute that described conduct that could constitute a non-serious felony or a serious felony, the court can consider language appearing in the record of conviction to determine whether the conviction was for a serious felony.
People v. Miles (5/29/2008, S140413) 43 C4th 1074: In determining whether a prior conviction was for a serious felony, where the prior conviction was under a statute that described conduct that could constitute a non-serious felony or a serious felony, the court can consider language appearing in the record of conviction to determine whether the conviction was for a serious felony.
Grants Of Review:
People v. Wyatt REV GTD (5/14/2008, S161545) 2008 Cal. App. Unpub. LEXIS 891: Did substantial evidence support defendant’s conviction for a caregiver’s assault on a child by means of force likely to produce great bodily injury causing death (PC 273ab)? Specifically, was there evidence that defendant was “aware of the facts that would lead a reasonable person to realize that a battery would directly, naturally and probably result from his conduct” (People v. Williams (2001) 26 C4th 779, 788)?
People v. Moore (5/14/2008, S161216) 2008 Cal. App. Unpub. LEXIS 1003: Briefing deferred pending decision in People v. Rodriguez REV GTD (3/12/2008, S159497) 157 CA4th 14, which includes the question whether PC 654 applies to sentence enhancements that derive from the nature of the offense, including enhancements under PC 186.22(b), for committing a crime for the benefit of a criminal street gang, and for 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 PC 12022.53 are found true and the longest enhancement is imposed, should the lesser enhancements be stricken, stayed or simply not imposed at all?
Review in the following cases was dismissed in light of People v. Gomez (2008) 43 C4th 249:
People v. Johnson REV GTD (11/15/2006, S146207) 141 CA4th 1161
People v. Gunter REV GTD (2/13/2008, S158890) 156 CA4th 913
Review in the following case was dismissed in light of People v. French (2008) 43 C4th 36:
People v. Ayala REV GTD(11/28/2007, S157148) 155 CA4th 604
The following cases were transferred for reconsideration in light of People v. French (2008) 43 Cal.4th 36:
People v. Lacerda REV GTD (11/28/2007, S157590) 2007 Cal. App. Unpub. LEXIS 7621
People v. Marble REV GTD (1/23/2008) S159324 2007 Cal. App. Unpub. LEXIS 9241
People v. McMillon REV GTD (1/23/2008, S159136) 2007 Cal. App. Unpub. LEXIS 9085
People v. Tilley REV GTD (2/20/2008, S159328) 2007 Cal. App. Unpub. LEXIS 10172
California Courts of Appeal (May 1-May 31, 2008)
People v. Mohammed (5/2/2008, H030980) 162 CA4th 920: A defendant cannot be convicted of failure to appear (PC 1320) while released on own recognizance absent proof that defendant signed a promise to appear on a form complying with PC 1318.
People v. Varghese (5/8/2008, D048456) 162 CA4th 1084: The court did not abuse its discretion in ordering that the defendant reveal its test results if he opted to have DNA testing conducted by expert of his choice rather than by an independent expert. The court distinguished both Prince v. Superior Court (92) 8 CA4th 1176 [permitting the defense to use the remainder of the sample]; and People v. Cooper (91) 53 C3d 771 [not allowing the defense to use the remainder of the sample].)
People v. Ross (5/12/2008, B201673) 162 CA4th 1184: Where an arrested person lied to a booking officer by denying she possessed a weapon, and officers found a knife during a search of her person, the defendant’s action constituted actus reus (see People v. McCoy (2001) 25 C4th 1111, 1117 [the actus reus is an act or omission]), under PC 4574 of “voluntarily” bringing a weapon into a jail facility. (See People v. James (1969) 1 CA3d 645, 649-650.) The defendant’s Fifth Amendment privilege permitted her to remain silent about the weapon, but it did not protect her from consequences of lying in response to an officer’s valid question.
People v. Bordelon (5/14/2008, A114023) 162 CA4th 1311: (1) Appellant’s defense to the charge of robbery was that he had become so institutionalized as a result of his prior prison commitments that upon parole he was unable to adjust to life outside of prison and committed the bank robbery, not for money, but as a means of returning to the safer prison environment. Defense counsel asked that CALCRIM 370 which instructs the jury as to motive either not be given or be modified but the request was denied. CALCRIM 370 instructs that having a motive may be a factor tending to show defendant is guilty and not having a motive may be a factor showing defendant is not guilty. Counsel argued that the standard instruction would mislead the jury by equating motive with guilt whereas here, appellant’s motive was not to permanently deprive the bank but to enable him to return to prison. The appellate court determined that the specific intent instruction and the argument of defense counsel sufficiently negated any implication that the existence of a motive cannot support a defense.
(2) The court also concluded that the trial court abused its discretion by not permitting the defense expert on institutionalization to testify in reliance on appellant’s statement to the parole office psychologist that he had difficulty coping outside of prison and by not permitting defense counsel to pose a hypothetical question to the expert, but that the errors were harmless.
In re Saade (5/16/2008, G038712) 162 CA4th 1391: A habeas corpus petitioner whose conviction became final after Blakely v. Washington (2004) 542 US 296, but before Cunningham v. California (2007) 549 US 270, is not entitled to retroactive benefit of the decision in Blakely.
Kruse v. Superior Court of San Joaquin (5/15/2008, C055654) 162 CA4th 1364: Under PC 861, an accused is entitled to a continuous preliminary hearing, unless he agrees to continue the preliminary hearing once it has started, or the magistrate makes a finding of good cause for continuance, as shown by affidavit.
People v. Zarazua et al. (5/15/2008, C047726) 162 CA4th 1348: Under PC 12022.53, subdivision (d), a defendant can proximately cause injury/death with the discharge of a firearm even if the bullet does not actually strike the victim.
People v. Uribe (4/24/2008, ordered pub’d 5/19/2008, H030630) 162 CA4th 1457: There was a violation under Brady v. Maryland (63) 373 US 83, 88, and Kyles v. Whitley (95) 514 US 419, 438 [131 LEd2 490; 115 SCt 1555] [indicates that the defendant can try to prove his case by cross-examining the witness on what the cops did not do or what a witness did or did not do; therefore the prosecution needs to turn over the name of witnesses; accord People v. Seaton (2001) 26 C4th 598), where the defendant was charged with aggravated sexual assault of a child (PC 269, PC 261(a)(2)), and PC 288(a) (lewd or lascivious acts on a child), given the prosecution’s constitutional duty to disclose exculpatory evidence to the defense. This rule extended to videotape of medical examination of the alleged victim where the tape supported the defense expert’s testimony that the victim did not suffer sexual trauma, the examination was spearheaded by the police and conducted in accordance with statutory protocol designed to facilitate the prosecution of sex offenders, and the tape was in possession of the medical professional who conducted the examination and was member of “sexual assault response team” whose purpose was to gather and collect evidence for use in the prosecution. This was a clear showing of prejudicial Brady and Kyles error.
People v. Wardell (5/20/2008, H031285) 162 CA4th 1484: (1) Jury may find menace sufficient to make false imprisonment (§ 236) a felony where a rational jury could conclude that a defendant’s acts or words expressly or impliedly threatened harm, and their finding that the defendant feloniously falsely imprisoned the victim and personally used a firearm, was supported by substantial evidence where the defendant, who openly held a gun, even though it was pointed to the ground, while ordering victim around a house, implied that he was threatening to use it. The court distinguished People v. Matian (95) 35 CA4th 480, 484-487, wherein the defendant was convicted of false imprisonment which requires violence, menace, fraud or deceit, and the matter was reduced to a misdemeanor, in large part because appellant did not use a weapon during the course of the false imprisonment.
(2) An enhancement within the meaning of PC 12022.5(a), does not require specific intent, and nothing in the statute indicates that the gun has to be pointed at the victim when it is otherwise displayed and seen by the victim. (People v. Granado (96) 49 CA4th 317, 322; see also Alvarado v. Superior Court (2007) 146 CA4th 993, 1002 [there are no particular fact patterns to show the defendant has “used” the gun for enhancement purposes].)
(3) The court did not err by failing to define the phrase “displays the firearm in a menacing manner” as used in CALCRIM 3146, because the phrase is commonly understood and has no technical legal meaning. (People v. Estrada (95) 11 C4th 568, 574.) A word or phrase having a technical, legal meaning requiring clarification by the court is on that has a definition that differs from its nonlegal meaning. (People v. Hudson (2006) 38 C4th 1002, 1012.)
People v. Wardell (5/20/2008, H031285) 162 CA4th 1484: A defendant’s acts or words that either expressly or impliedly threaten harm will suffice to establish the element of violence necessary for felony false imprisonment.
People v. Golde (5/22/2008, C053632) 163 CA4th 101: (1) Substantial evidence supported appellant’s conviction for violation of PC 245(a)(1); (2) The trial court did not err by giving the following CALCRIM jury instructions: 101, 102, 104, 200, 220, 223, 225, 226, 300, 302, 315, 316, 318, 333, 355, and 875.
People v. Kelly (5/22/2008, B195624) 163 CA4th 124: HS 11362.77, which caps the amount of marijuana a patient may have, unconstitutionally amends the Compassionate Use Act.
People v. Barrios (5/23/2008, A114150) 163 CA4th 270: The proscription under PC 76 for threatening a public official does not require the specific intent to carry out the threat, only the intent that the statement be taken as a threat.
People v. Jackson (5/27/2008, C054954) 163 CA4th 313: The trial court did not err in ruling the use of the “Identifiler” test kit for DNA samples did not require a full Kelly hearing.
People v. New (5/28/2008, D048497) 163 CA4th 442: Prejudice resulting in a delay of prosecution for a 1973 murder did not result in an unfair trial.
People v. Masotti (5/28/2008, C056320) 163 CA4th 504: The trial court can grant a new trial only on a ground raised in the motion for a new trial and is without authority to grant a new trial on its own motion (PC 1181).