CALIFORNIA CASE LAW UPDATE – Selected California Cases
California Supreme Court (May 1-31, 2009)
People v. Burgener (5/7/2009, S116882) 46 C4th 231: Warning Of Dangers Of Being Pro Per: The record was insufficient to establish that the defendant’s Faretta waiver of counsel was knowing and intelligent where the trial court indicated that the defendant was aware of the possible dangers and disadvantages of self-representation, but did not specifically advise him of those dangers and disadvantages. Even if subject to the Chapman harmless error review, the error mandated reversal.
People v. Curl (5/18/2009, S034072) 46 C4th 339: Priors – Constitutional Validity Not Submitted To Jury: Challenge to constitutional validity of underlying prior guilty plea that formed basis for special circumstance allegation did not have to be found by jury beyond reasonable doubt. Curl v. Superior Court (1990) 51 C3d 1292 was not superseded by Apprendi v. New Jersey (2000) 530 US 466.
Grants Of Review:
People v. Herrera REV GTD (5/20/2009, S171895) 2009 Cal. App. Unpub. LEXIS 1569: Did the trial court err in determining that a prosecution witness, who had been deported and could not be extradited to the United States, was unavailable within the meaning of EC 240, or was the prosecution required to show further due diligence to establish the unavailability of the witness before introducing the witness’s prior testimony from the preliminary hearing?
The court ordered review in the following case dismissed 5/13/2009 in light of People v. Ramirez (2009) 45 C4th 980:
People v. Garcia REV GTD (1/3/2008, S157870) 155 CA4th 929.
The following cases were transferred 5/13/2009 for reconsideration in light of People v. Wagner (2009) 45 C4th 1039:
Gonzalez v. Superior Court REV GTD (10/28/2008, S167197) 166 CA4th 922.
People v. Rodriguez REV GTD (3/12/2008, S159497) 157 CA4th 14: The court requested the parties to file supplemental letter briefs addressing the following questions: (1) Is the reference to PC 654 in PC 1170.1(a), without further mention of section 654 in any other of section 1170.1’s subdivisions, indicative of legislative intent as to section 654’s applicability to sentence enhancements? (2) PC 1170.1(f), provides that “[w]hen two or more enhancements may be imposed for being armed with or using a dangerous or deadly weapon or a firearm in the commission of a single offense, only the greatest of those enhancements” can be imposed. Does subdivision (f) preclude the imposition of added prison terms under both of the enhancement provisions at issue in this case, PC 12022.5(a), and PC 186.22(b)(1)(C)?
California Courts of Appeal (May 1-31, 2009)
People v. Torres (5/5/2009, D052887) 173 CA4th 977: Evidence that defendant used methamphetamine, alone, is insufficient to support a conviction for driving under the influence of drugs (VC 23152(a)); it must also be shown that the drug impaired defendant’s driving ability.
People v. Mays (5/8/2009, C057099) 174 CA4th 156: Court did not err in admitting the defendant’s mock polygraph test, after he had volunteered to undergo a real polygraph test, and then the police informed him he had failed, and he then admitted he was present at the scene of the crime. The defendant’s admissions were not involuntary and were therefore admissible. False polygraphs are not coercive per se, and the defendant’s ability to admit being present, while steadfastly denying participation, demonstrated that his will was not overborne by the police ruse. Use of a mock polygraph was not likely to produce a false confession where police already had information from other sources that the defendant was the perpetrator. (See People v. Chutan (1999) 72 CA4th 1276, 1280.)
People v. Zambia (5/12/2009, B207812) 173 CA4th 1221:There was sufficient evidence of pandering where appellant told an undercover officer he was a pimp and offered to provide her services in exchange for her money.
People v. Chaffin (5/14/2009, E046217) 173 CA4th 1348: Jury Instructions – Failure To Define “Likely”: Court’s failure to define word “likely” in child endangerment statute (PC 273a(a)) was not prejudicial, since factual question posed by omitted definition was resolved adversely to defendant in other properly given instructions.
People v. Ranscht (5/15/2009, D052811) 173 CA4th 1369: Sex Registration – Equal Protection Violation: People v. Hofsheier (2006) 37 C4th 1185, which holds that imposing sex registration requirement on offender convicted of voluntary oral copulation with 16-year old violates equal protection, applies to offender convicted of voluntary sexual penetration of 13-year-old, because similarly situated offender convicted of unlawful sexual intercourse with a victim of the same age would not be subject to registration. Disagrees with People v. Manchel (2008) 163 CA4th 1108.
People v. Valladares (5/15/2009, G039799) 173 CA4th 1388: False Immigration Papers – PC 113 Not Repealed by Implication: PC 113, which punishes as a felony the manufacture, distribution and sale of false immigration documents was not repealed by implication by the passage of PC 112 (manufacture of false government document, a misdemeanor). The provisions give prosecutors the option of charging a felony or a misdemeanor.
People v. Cadogan (5/20/2009, G040200) 173 CA4th 1502: Prior Testimony – Conditional Examination Testimony: Testimony obtained at conditional examination, of defendant’s late wife was admissible even though defendant was incompetent at the time of the examination.
People v. Sisneros (5/21/2009, B205535) 174 CA4th 142: Witnesses – Calling Witness Who Would Take Fifth: Calling witness before the jury knowing that she would refuse to testify (she was not entitled to invoke Fifth Amendment right as she would not be incriminating herself) was not improper. Her refusal to take the oath or answer questions was admitted to support the gang expert’s opinion that defendant was a gang member and the crime was gang-related as evinced by witness intimidation.
People v. Paysinger (5/21/2009, C059448) 174 CA4th 26: Jury Instructions – Flight: CALCRIM 372 (flight instruction) is not unconstitutional and does not deprive a defendant of the presumption of innocence, right to jury trial, or proof beyond reasonable doubt.
People v. Hairston (5/26/2009, C057504) 174 CA4th 231: Multiplicity – Resisting Arrest: Conviction of three separate counts of resisting a police officer (PC. 148) proper when defendant fled from three officers, under the authority of PC 148(e) (which court notes was not cited by either party). Concurrent sentences permissible because substantial evidence supported court’s implicit determination that defendant had a separate objective for each violation – to avoid arrest by each particular officer.
People v. Vasilyan (5/28/2009, B205679) 174 CA4th 443: Motion To Vacate – Invalid Conviction: PC 422.7 is a penalty provision only and does not describe a substantive offense. (People v. Wallace (2003) 109 CA4th 1699; In re M.S. (1995) 10 C4th 698, 725.) A conviction for a crime that does not exist cannot be affirmed, and court lacks fundamental jurisdiction.
People v. Gutierrez (5/28/2009, F055925) 174 CA4th 515: Battery On Custodial Officer: Read literally, CALCRIM 2671 authorizes a custodial officer to use reasonable force in four situations — “to restrain a person, to overcome resistance, to prevent escape, or in self-defense” — but erroneously limits to the first situation alone not only the prohibition against the defendant’s use of force or any weapon to resist reasonable force but also the authorization of the defendant’s use of reasonable force to defend against unreasonable or excessive force. This instruction is flawed.
In re Brandon O. (5/29/2009, A123065) 174 CA4th 637: Weapons – Evidence That Weapon Was Stun Gun: In order to find minor culpable of assault with a stun gun or taser, it was not necessary to prove victim had been immobilized. Testimony that victim had been slowed down after the first assault and had to sit on the ground for a few seconds after the next assault was sufificient to show temporary immobilization. Expert testimony from police officer who was familiar with tasers though he had not received formal training.
U.S. Supreme Court (May 1-31, 2009)
Flores-Figueroa v. U.S. (5/4/2009, No. 08-108) ____ US ____ [173 LEd2d 853: 129 SCt 1886]: Identity Theft – Definition of “Knowingly”: Tthe federal identity theft statute requires proof that the defendant knew that the numbers on the identity cards belonged to someone else.
Montejo v. Louisiana (5/26/2009, No. 07-1529) ____ US ____ [173 LEd2d 955; 129 SCt 2079]: Confessions – After Counsel Appointed By The Court: Majority, speaking through Scalia, overrules Michigan v. Jackson (1986) 475 US 625, which categorically forbade the initiation of interrogation of a criminal defendant once he has requested counsel at an arraignment or similar proceeding, and established a presumption that the waiver of counsel at the interrogation was invalid. The rules governing interrogation are now contained in Miranda v. Arizona (1966) 384 US 436, Edwards v. Arizona (1981) 451 US 477 (once accused invokes right to have counsel during interrogation, he is not subject to further interrogation until counsel has been made available) and Minnick v. Mississippi (1990) 498 US 146.
Abuelhawa v. United States (5/26/2009, No. 08-192) ____ US ____ [173 LEd2d 982; 129 SCt 2102]: Drugs – Using Phone to Buy: Using a phone to make a misdemeanor drug purchase does not turn into the felony of using a “communication facility in … facilitating” drug offenses.
9th Circuit (May 1-31, 2009)
United States v. Nguyen (5/15/2009, 9th Cir. No. 07-30197) 565 F3d 668: Co-defendant’s Statements – Erroneous Admission Prejudice Standard: Admission of co-defendant’s statements violated Sixth Amendment confrontation clause (Crawford v. Washington (2004) 541 US 36, 43), and government failed to prove error was harmless beyond a reasonable doubt. It does not matter that it may have been the co-defendant’s counsel, and not the prosecutor, who elicited the statement.
Byrd v. Lewis (5/15/2009, 9th Cir. No. 06-15977) 566 F3d 855: Jury Instructions – Standard of Prejudice: State court’s application of harmless error review to trial court’s jury instructions that erroneously lowered burden of proof was not unreasonable application of clearly established Supreme Court precedent.
United States v. Juvenile Female (5/27/2009, 9th Cir. No. 07-50549) 566 F3d 943: Juveniles – Federal – Assault On Border Patrol Officer: Assault involving deadly or dangerous weapon (here, small knife) is categorically a crime of violence so as to give federal court jurisdiction over minor arrested for assault on Border Patrol officer, but not at border. Officer was engaged in performance of duties when investigating drug trafficking crime.