CALIFORNIA CASE LAW UPDATE – Selected California Cases
California Supreme Court (April 1-30, 2010)
Confrontation: Witness Unavailability – Required Showing Under Uniform Act. People v. Cogswell (4/1/2010, S158898) 48 C4th 467: In a sexual assault case, the prosecution is not required to invoke the custody-and-delivery provision of the interstate Uniform Act to Secure Attendance of Witnesses (Act) to show witness unavailability for the purpose of introducing preliminary hearing testimony at trial.
No Right To Appointed Counsel Of Choice. People v. Noriega (4/5/2010, S160953) 48 C4th 517: Under both the U.S. and California constitutions, an indigent defendant has no right to counsel of choice and the trial court’s disqualification of appointed counsel is reviewed for abuse of discretion.
Speedy Trial: Unavailability Of Defendant As Good Cause For Delay. People v. Sutton (4/5/2010, S166402) 48 C4th 533: Unavailability of a defendant’s counsel, not attributable to the state action, may constitute good cause for continuance of trial beyond the sixty day specified in PC 1382 and the state’s interest in properly joined trials may constitute good cause for continuance of a codefendant’s trial beyond the presumptive statutory period of PC 1382.
Death Penalty: Proposition 115 Does Not Preclude Postconviction Discovery. People v. Superior Court (Pearson) (4/8/2010, S171117) 48 C4th 564: PC 1054.9, which requires a court to order that a defendant under a sentence of death or life in prison without the possibility of parole be provided postconviction discovery in specified circumstances, did not amend Proposition 115 because that proposition governs only pretrial discovery and does not prohibit postconviction discovery of the kind that PC 1054.9 provides.
Death Penalty. People v. Taylor (4/15/2010, S062562) 48 C 4th 574: Death judgment affirmed. Various claims rejected, including defendant’s claim that trial court abused its discretion in denying his requests for substitution of trial counsel and claim of constitutional violations in selecting jurors in capital cases.
Death Penalty. People v. Redd (4/29/2010, S059531) 48 C4th 691: Death judgment affirmed appeal over claims of error regarding: 1) the detention and arrest of defendant, and a search of his vehicle; 2) the validity of the arrest and search; 3) denial of defendant’s motion for a lineup; 4) defense counsel’s reference to defendant during his opening statement; 5) the admission of the out-of-court identifications ; 6) victim-impact evidence at the guilt phase; 7) rejection of an instruction on lesser included offenses; 8) prosecutorial misconduct; 9) cumulative error; 10) admission of victim-impact evidence; 11) rejection of various instructions requested by defendant; and 12) various challenges to California’s death penalty scheme.
Grants Of Review:
People v. Barrett REV GTD (4/14/2010, S180612) 181 CA4th 196: Do principles of due process or equal protection require the trial court to affirmatively advise a person facing commitment under WI 6500 of his or her right to a jury trial and, if so, to obtain an express waiver of that right on the record?
People v. Boyd REV GTD (4/14/2010, S180696) 2010 Cal. App. Unpub. LEXIS 703, People v. Herring REV GTD (4/28/2010, S181244) 2010 Cal. App. Unpub. LEXIS 1189 and Herron v. Appellate Division of the Superior Court REV GTD (4/28/2010, S180622) Unpublished: Briefing deferred pending decision in People v. Engram REV GTD (12/02/2009, S176983) 2009 Cal. App. Unpub. LEXIS 7063, People v. Hajjaj REV GTD (9/30/2009, S175307) 175 CA4th 415, and People v. Wagner REV GTD (9/30/2009,S175794) 175 CA4th 1377, which include the following issues: (1) Did the trial court err in dismissing this case for violation of defendant’s statutory right to a speedy trial on the ground no criminal courtroom was available? (2) Should criminal cases facing dismissal on speedy trial grounds be given precedence over civil cases pursuant to PC 1050(a), either as a matter of law or under the circumstances of this case?
People v. Faultry REV GTD (4/14/2010, S179910) 2009 Cal. App. Unpub. LEXIS 10212: Briefing deferred pending decision in People v. Lynch (S026408), an automatic appeal that includes issues relating to the timeliness of a request for self-representation.
People v. Sanchez REV GTD (4/14/2010, S179903) 180 CA4th 763: Briefing deferred pending decision in People v. Hernandez REV GTD (9/9/2009, S175615) 175 CA4th 940, which presents the following issue: Did the trial court abuse its discretion in requiring a uniformed, armed deputy sheriff to stand or sit immediately behind the defendant during his testimony?
People v. Murphy REV GTD (4/22/2010, S180181) 180 CA4th 905: Was defendant’s conviction under PC 115 preempted by VC 20 and 10501(a)?
People v. Skiles REV GTD (4/28/2010, S180567) 180 CA4th 1363: Are faxed copies of certified court records admissible to establish that a prior conviction qualifies as a serious or violent felony for purposes of the three strikes law?
Review in the following case was dismissed as moot:
People v. Price REV GTD (6/13/2007, S151207) 147 CA4th 955
The following case was transferred for reconsideration in light of In re E.J. (2010) 47 C4th 1258:
People v. Mosley REV GTD (3/18/2009, S169411) 168 CA4th 512
Review in the following case was dismissed in light of In re E.J. (2010) 47 C4th 1258:
In re A.G. REV GTD (8/12/2009, S173646) 2009 Cal. App. Unpub. LEXIS 3270
The following cases were transferred to reconsideration in light of People v. Lara (2010) 48 C4th 216 and People v. Cobb (2010) 48 C4th 243:
People v. Shady REV GTD (8/12/2009,S173376) 2009 Cal. App. Unpub. LEXIS 3434
People v. Jaimes REV GTD (2/10/2010, S178358) 2009 Cal. App. Unpub. LEXIS 8480
Review in the following case was dismissed in light of People v. Lara (2010) 48 C4th 216 and People v. Cobb (2010) 48 C4th 243:
People v. Kopay REV GTD (9/9/2009, S174154) 2009 Cal. App. Unpub. LEXIS 3751
Review in the following case was dismissed in light of People v. Superior Court (Sparks) (2010) 48 C4th 1:
People v. Superior Court (Rampone) REV GTD (8/12/2009, S173290) 2009 Cal. App. Unpub. LEXIS 2997
California Courts of Appeal (April 1-30, 2010)
PC 148.1(d) Violates Equal Protection. People v. Turnage (4/1/2010, C059887) 183 CA4th 45: The felony punishment for PC 148.1(d) (placing a false bomb with the intent to cause fear) is a violation of the right to equal protection because the punishment is harsher than that for the similarly situated PC 11418.1 (placing a false weapon of mass destruction).
Pornography: Sending Harmful Matter To Child. People v. Nakai (4/2/2010, E046559) 183 CA4th 499: Defendant properly convicted of attempting to send harmful matter to a minor with intent to seduce. (PC 667, 288.2(a).) No error in refusing to instruct on offense of knowingly sending harmful matter to a minor, PC 313.1(a), because chat room conversation showed intent to seduce and not any different intent.
Public Trial. People v. Bui (4/6/2010, A119404) 183 CA4th 675: Court did not err in temporarily excluding the defendant’s family members during voir dire based on People v. Woodward (1992) 4 C4th 376, 380-381 and the “de minimus” doctrine. The Court of Appeal distinguished Presley v. Georgia (1/19/2010, No. 09-5270) ____ US ____ [175 LEd2d 675; 130 SCt 721], finding that the “de minimus” doctrine was not changed by this opinion, even though the Supreme Court in that case reversed based on the exclusion of the defendant’s family from voir dire, just as they did in this case.
Duplicity/Unanimity. People v. Milosavijevic (4/6/2010, D055327) 183 CA4th 640: Court erred by not instructing sua sponte, that for a guilty finding, all of the jurors had to agree on the specific act that constituted an element of that offense.
Setting Aside Grand Jury Indictment: Evidentiary Standard. People v. Superior Court (Costa) (4/6/2010, B220346) 183 CA4th 690: A grand jury indictment for second degree murder in a vehicular homicide case should be set aside only if there is no evidence connecting defendant to the crime.
Plea Bargain: Prosecutor May Withdraw Before Plea. People v. Cantu (4/6/2010, E048651)183 CA4th 604: A prosecutor may withdraw from a plea bargain before a defendant pleads guilty or otherwise detrimentally relies on that bargain.
Marijuana: Compassionate Use Defense – Qualification Of Expert. People v. Dowl (4/6/2010, F057384) 183 CA4th 702: In a prosecution for possession of marijuana for sale and transportation of marijuana, where defendant asserts a Compassionate Use defense, the prosecution expert testifying that the marijuana was held for purpose of sale, need not qualify as a medical marijuana expert (disagreeing with People v. Chakos (2007) 158 CA4th 357).
Appropriation Of Lost Property (PC 485) Is A General Intent Crime. People v. Zamani (4/7/2010, H032414) 183 CA4th 854: PC 484 defines various “felonious takings” as theft. In PC 484, the use of the word “felonious” has been held to import the common law specific intent requirement. But not all of the theft offenses in the scheme have a specific intent requirement. (See, e.g., PC 484c.) The only mental state mentioned in PC 485 is the perpetrator’s “knowledge.” Also, the Legislature has made it clear that PC 485 is a unique species of theft distinct from those in PC 484 because it has given both the court and the prosecutor discretion to treat the former as an infraction, whereas the discretion to treat the latter as an infraction is only vested with the prosecutor. This more lenient treatment for PC 485 reflects the Legislature’s acknowledgment that it does not have the same elements as a violation of PC 484. But see dissent concluding that PC 485 requires specific intent.
Weapons: Insufficient Evidence To Support Firearm Enhancement. People v. Botello (4/9/2010, B212183) 183 CA4th 1014: Evidence insufficient to support firearm enhancements charged under PC 12022.53(b)(c) and (d) and PC 12022.5, because there was no evidence as to which defendant fired the weapon.
IAC Allegation By Defendant: Duty Of Court To Inquire. People v. Reed (4/13/2010, A123967) 183 CA4th 1137: When a defendant moves for a new trial based on ineffective assistance of counsel (IAC), the trial court has a duty to inquire into the basis for the allegations.
Ecstasy As Controlled Substance. People v. Becker (4/13/2010, E047898) 183 CA4th 1151: Substantial evidence supported the defendant’s conviction for simple possession of “ecstasy” in violation of HS 11377 where the investigator’s testimony was sufficient to show that ecstasy is either a controlled substance itself or a controlled substance analog of methamphetamine.
False Personation. People v. Stacy (4/14/2010, C060673) 183 CA4th 1229: There was sufficient evidence to support the crime of false personation. (PC 529.)
Provocation May Negate Premeditation And Deliberation: Sufficiency Of CC 522. People v. Hernandez (4/16/2010, D055331) 183 CA4th 1327: The jury was instructed with CALCRIM 521 which defines first degree murder as requiring deliberation and premeditation and explains that a decision made rashly is not deliberate and premeditated. It was also instructed with CALCRIM 522 which provides the theory of provocation and explains that provocation may reduce a murder from first degree to second degree or to manslaughter. Appellant was convicted of first degree murder. The appellate court rejected appellant’s argument that CALCRIM 522 was inadequate because it does not specifically inform the jury that provocation is relevant to determine whether defendant killed with premeditation and deliberation. Although it is true that CALCRIM 522 does not expressly state that provocation is relevant, when read with CALCRIM 521, there is no reasonable likelihood the jury did not understand the concept of provocation.
Admissibility Of Prior Uncharged Offense To Prove Intent. People v. King (4/16/2010, B210909) 183 CA4th 1281: Evidence of a prior uncharged offense for the purpose of proving intent as to the current offense is admissible only if the prior act is sufficiently similar to the charged offense to support a rational inference that a defendant probably harbored the same intent on both occasions.
Insufficient Funds For Otherwise Genuine Check Does Not Violate PC 476. People v. Mathers (4/22/2010, C060425) 183 CA4th 1464: Possession of a check that is genuine, but uncollectible due to insufficient funds, does not violate PC 476 which prohibits possessing, passing or attempting to pass a fictitious check.
Child Molestation: Instruction And Sufficiency. People v. Tepetitla-Cruz (4/22/2010, E046846) 183 CA4th 1451: Disagreeing with People v. Cicero (1984) 157 CA3d 465, court holds that consent is not a defense to lewd act committed by force.
Duplicity. People v. Delgado (4/29/2010, B213271) 184 CA4th 271: A unanimity jury instruction is not required where the evidence shows the charged offense consists of multiple acts in a continuous course of conduct.
U.S. Supreme Court (April 1-30, 2010)
Animal Cruelty Videos Are Protected By The First Amendment. U.S. v. Stevens (4/20/2010, No. 08–769) ____ US ____ [176 LEd2d 435; 130 SCt 1577]: Congress passed a law criminalizing commercial creation, sale, or possession of animal cruelty videos. The USSC (8-1) strike this statute down as overbroad under the 1st Amendment. The USSC says that laws can bar animal cruelty, but this law that bars only depictions of animal cruelty is overbroad under the First Amendment.