CALIFORNIA CASE LAW UPDATE – Selected California Cases
California Supreme Court (May 1-31, 2010)
Theft And Receiving: Receiving Must Be Stricken, Not Theft – Jury’s Should Be Instructed To Decide Theft First. People v. Ceja (5/17/2010, S157932) 2010 Cal. LEXIS 4560: Where a defendant is improperly convicted of stealing and receiving the same property, the conviction for receiving stolen property must be reversed irrespective of which offense has the greater penalty. When a defendant is charged with stealing and receiving the same property, juries should be instructed to reach a verdict on the theft charge first and that a guilty verdict on the theft will make it unnecessary to consider the receiving charge.
Judicial Estoppel Requires Enforcement Of SVP Stipulation. People v. Castillo (5/24/2010, S171163) 2010 Cal. LEXIS 4883: A stipulation limiting appellant’s SVP recommitment to a two-year term should be upheld under the doctrine of judicial estoppel. When Jessica’s Law was on the ballot, the Los Angeles District Attorney and Public Defender entered into a stipulation that pending SVP recommitments petitions, including appellant’s, would be for two years instead of indeterminate terms as provided by the proposed legislation.
Sheriff’s Release Of Witness For Deportation Did Not Violate Defendant’s Constitutional Rights. People v. Jacinto (5/27/2010, S164011) 2010 Cal. LEXIS 5031: Deportation of a sole witness favorable to the defense did not violate defendant’s federal and state constitutional rights to the compulsory attendance of witnesses in his favor.
Grants Of Review:
People v. Benitez REV GTD (5/12/2010, S181137) 182 CA4th 194: 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. Carranco REV GTD (5/20/2010, S181567) 2010 Cal. App. Unpub. LEXIS 1318: Briefing deferred pending decision in People v. Hernandez REV GTD (2/24/2010, S178823) 178 CA4th 1510, which presents the following issue: Did the trial court’s gag order, which precluded defense counsel from discussing with defendant a sealed declaration of a testifying prosecution witness and a transcript of that witness’s plea-agreement proceedings, so completely deprive defendant of his right to counsel as to constitute structural error reversible without a showing of prejudice or did the gag order implicate defendant’s right to counsel in a manner requiring a showing of prejudice before reversal would be required?
People v. Tillis REV GTD (5/20/2010, S180501) 2010 Cal. App. Unpub. LEXIS 958: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?
Review in the following case was dismissed in light of People v. McKee (2010) 47 C4th 1172:
People v. Force REV GTD (4/15/2009, S170831) 170 CA4th 797.
The following cases were transferred for reconsideration in light of People v. McKee (2010) 47 C4th 1172:
People v. Johnson REV GTD (8/13/2008, S164388) 162 CA4th 1263.
People v. Riffey REV GTD (8/20/2008, S164711) 163 CA4th 474.
People v. Boyle REV GTD (10/01/2008, S166167) 164 CA4th 1266.
People v. Garcia REV GTD (10/16/2008, S166682) 165 CA4th 1120.
People v. Johndrow (9/17/2009, S175337) 175 CA4th 719.
People v. Rotroff REV GTD (1/13/2010, S178455) 178 CA4th 619.
People v. Glenn REV GTD (2/10/2010, S178140) 178 CA4th 778.
California Courts of Appeal (May 1-31, 2010)
Pimping And Pandering — Good Faith Belief As To Prostitute’s Age: People v. Branch (5/6/2010, C060225) 184 CA4th 516: A good faith belief that a prostitute is 18 is not a defense to pimping or pandering a minor under the age of 16.
Right To 12 Jurors Cannot Be Waived By Counsel. People v. Traugott (5/6/2010, E046884) 184 CA4th 492.
Forgery: Possession Of C – Unit Of Prosecution Is By The Person Not The Check. People v. Otubuah (4/7/2010, pub’d 5/6/2010, E047271) 184 CA4th 422: Twenty-four of 27 counts of possession of forged checks had to be reversed because the 27 checks were from three separate victims. Forgery by possession of checks occurs once per victim.
Homicide: Aiding and Abetting Suicide Defense. People v. Lam (5/10/2010, B212994) 184 CA4th 580: Defendant stole money from his wife to pay for his gambling losses. He testified that when she found out, she suggested a double suicide, but only she died. He appealed the trial court’s refusal to give an instruction on aiding and abetting a suicide. Held, even if defendant’s version of the facts supported a mutual suicide pact it did not support an aiding and abetting suicide instruction because he actively participated in the final overt act that could have resulted in only the wife’s death (pulling on a necktie wrapped around her neck). Court distinguishes In re Joseph G. (1983) 34 C3d 429, where defendant drove a car over a cliff.
Severe Mental Disorder Per PC 2970 Is Not A “Mental State.” People v. Contreras (5/10/2010, G042077) 184 CA4th 587: Trial court appropriately instructed the jury with CALCRIM 224 because a jury is not required to determine a defendant’s “mental state” in order to determine whether a defendant suffered from a “severe mental disorder.”
Priors: Moral Turpitude Defined As “Readiness To do Evil.” People v. Douangpanya (5/11/2010, C061501) 184 CA4th 606: Trial court properly instructed jurors that moral turpitude is “a readiness to do evil.” (People v. Castro (1985) 38 C3d 301.) Defendant opened up the issue of what moral turpitude meant by asking the court to sanitize the priors (one of which was identical to the current offense).
Defendant’s Submission To An Examination Per EC 1054.3. Maldonado v. Superior Court (5/13/2010, A126236) 184 CA4th 739: When a defendant is required to submit to an examination under EC 1054.3, the prosecution does not have a right to contemporaneously observe the examination, but disclosure of the results to the prosecution need not be delayed until defendant presents the results of his own examination at trial.
Escape From Officer’s Custody In Jail. People v. Ligons (5/13/2010, B212616) 184 CA4th 808: Judge prejudicially erred in instructing the jury that defendant could be convicted of attempted escape by force or violence under PC 4532 if it found that she attempted to escape from an officer’s custody within the confines of the jail, because section 4532 does not apply to breaking away from the custody of an officer within the custodial facility. (See CJ 7.31.)
Residential Vehicle Is Not A Residence When In Transit. Garber v. Superior Court (5/13/2010, B212766) 184 CA4th 724: In the context of PC 12025 (carrying concealed firearm in a vehicle) and 12031 (carrying loaded firearm in public place), a vehicle that is used as a “place of residence” is not considered a residence when in transit, and therefore, does not fall within the exemption of PC 12026, permitting a firearm in a residence.
Continuances: Dismissal As Sanction For Failure To Provide Notice. People v. Ferrer (5/14/2010, A124178) 184 CA4th 873: Although PC 1050 requires the People to show good cause for a continuance of a hearing on a motion to suppress, dismissal of the case for failure to show good cause, either directly or because dismissal would be a reasonable outcome of the denial of the motion to continue, is not a permissible sanction.
Sentencing: Felon In Possession Of Gun And Possession Of Meth. People v. Vang (5/17/2020, C059700) 2010 Cal. App. LEXIS 688: The crimes of felon in possession of a firearm (PC 12021(a)) and possessing methamphetamine while armed with a loaded firearm (HS 11370.1(a)) are separate acts such that separate penalties can be imposed without violating PC 654.
Sex Offenses: Joinder Of Counts In Different Counties. People v. Nguyen (5/20/2010, G040600) 2010 Cal. App. LEXIS 706: PC 784.7 permits joining different sex offenses from different counties, not only identical offenses.
Guilty Pleas: Judicial Bargaining. People v. Woosley (5/21/2010, C061440) 2010 Cal. App. LEXIS 710: The trial court exceeded its authority when, over the prosecutor’s objection, it accepted a plea in exchange for a sentence that could only be imposed by dismissing an enhancement per PC 1385.
Wiretap Error. People v. Roberts (5/21/2010, D053377) 2010 Cal. App. LEXIS 711: When a defendant moves to suppress wiretap evidence, he first bears the burden of showing a provision of the law was violated, and that the violated provision plays a central statutory purpose, then the burden shifts to the prosecution to show that the statute’s purpose was achieved notwithstanding the error.
Sentencing: PC 654. People v. Wynn (5/24/2010, D056808) 2010 Cal. App. LEXIS 731: Multiple punishment for burglary and assault with a deadly weapon did not violate PC 654.
PC 12022.55 Not Applicable To Occupant Of Vehicle. People v. Ramirez (5/25/2010, B213097) 2010 Cal. App. LEXIS 736: A PC 12022.55 enhancement cannot apply when the victim is the occupant of a motor vehicle.
Robbery: Constructive Possession. People v. Weddles (5/25/2010, C057666) 2010 Cal. App. LEXIS 738: An immediate family relationship is sufficient to establish constructive possession for purposes of the robbery statute.
Embezzlement: Intent. People v. Casas (5/25/2010, E048184) 2010 Cal. App. LEXIS 742: The crime of embezzlement does not require the intent to permanently deprive the owner of property.
Right To Appointment Of Previously Retained Counsel. Gressett v. Superior Court (5/28/2010, A127100) 2010 Cal. App. LEXIS 780.
U.S. Supreme Court (May 1-31, 2010)
When Does A Mistrial Trigger A Double Jeopardy Bar To Retrial? See dissent in Renico v. Lett (5/3/2010, No. 09-338) ____ US ____ [176 LEd2d 678; 130 SCt 1855].
Life Without Parole Sentences For Juveniles Are Cruel And Unusual Punishment. Graham v. Florida (5/17/2010, No. 08-7412) ____ US ____ [2010 U.S. LEXIS 3881].
9th Circuit (May 1-31, 2010)
No Established Constitutional Right To Severance. Collins v. Runnels (5/5/2010, 9th Cir. No. 08-17299) 603 F3d 1127: There is no clearly established U.S. Supreme Court decision that is binding on the states that requires trial severance where co-defendants present mutually antagonistic defenses.
Intent Issues Of PC 186.22(b)(1) Certified To California Supreme Court. Emery v. Clark (5/13/2010, 9th Cir. No. 08-55249) 2010 U.S. App. LEXIS 9823: In a habeas petition relating to a murder prosecution, the Ninth Circuit certifies the following questions to the California Supreme Court: 1) Does California’s criminal street gang enhancement statute, in particular the element of “specific intent to promote, further, or assist in any criminal conduct by gang members” in California PC 186.22(b)(1), require proof that the defendant specifically intended to promote, further, or assist in other criminal gang activity, apart from the offense of conviction? 2) Is gang expert testimony tied to the facts of the case – regarding the centrality of “respect” in gang culture, and how the defendant’s use of lethal force to avenge a minor slight to a member of an affiliated gang would enhance the “respect” he gets from other gang members, raise his status within the gang hierarchy, and teach the community not to interfere with even the most minor criminal activities of his fellow gang members — sufficient to satisfy th! e requirement that the murder was committed with the “specific intent to promote, further, or assist in any criminal conduct by gang members” within the meaning of PC 186.22(b)(1)? 3) Does evidence that the defendant committed the attempted robbery and murder in concert with the brother of a young gang member, whom the victim allegedly “disrespected,” satisfy the requirement that the crimes were committed with the specific intent to “assist in any criminal conduct by gang members” within the meaning of PC 186.22(b)(1)?
Hearsay Permissible At Preliminary Hearing. Peterson v. California (5/17/2010, 9th Cir. No. 09-15633) 2010 U.S. App. LEXIS 10001: The use of hearsay evidence at a preliminary hearing does not violate a defendant’s Sixth Amendment right to confrontation or his Fourteenth Amendment right to due process.
Judge Has Sua Sponte Duty To Conduct Competency Hearing. Maxwell v. Roe (5/20/2010, 9th Cir. No. 08-55534) 2010 U.S. App. LEXIS 10279: Where evidence raises a “bona fide doubt” regarding the defendant’s mental competency, the judge must sua sponte conduct a competency hearing. (Pate v. Robinson (1966) 383 U.S. 375.)
Giles Forfeiture By Wrongdoing Rule Is Not Retroactive. Ponce v. Felker (5/24/2010, 9th Cir. No. 08-56218) 2010 U.S. App. LEXIS 10476: The U.S. Supreme Court decision in Giles v. California (2008) ____ US ____ [171 LEd2d 488; 128 SCt 2678], holding that the forfeiture by wrongdoing exception to the right of confrontation applies only if the defendant specifically intended to prevent the witness from testifying is a new rule of law that does not apply retroactively.
Telling The Jury To Disregard Their Experience Is Wrong. Taylor v. Sisto (5/25/2010, 9th Cir. No. 09-15341) 2010 U.S. App. LEXIS 10556: The trial judge’s preinstruction to the jury that each juror disregard his or her own life experience deprived appellant of his Sixth and Fourteenth Amendment right to trial by an impartial jury.
Exclusion Of Third Party Guilt Evidence Violated Right To Present A defense. Lunbery v. Hornbeak (5/25/2010, 9th Cir. No. 08-17576) 2010 U.S. App. LEXIS 10554: The trial court denied appellant’s constitutional right to present a defense when it excluded credible evidence of third-party culpability.