CALIFORNIA CASE LAW UPDATE – Selected California Cases
California Supreme Court (May 1-31, 2011)
There were no relevant California Supreme Court decisions for April.
Grants of Review
People v. Wilkins REV GTD (5/11/2011, S190713) 191 CA4th 780: Should the trial court have instructed the jury, as requested, with CALCRIM 3261, on the theory that a homicide and an underlying felony do not constitute one continuous transaction for purposes of the felony-murder rule if the killer has escaped to a place of temporary safety before the homicide takes place?
People v. Sanders REV GTD (5/11/2011, S191341) 2011 Cal. App. Unpub. LEXIS 787: (1) Is possession of a firearm after conviction of a specified violent offense (PC 12021.1(a)) a necessarily included offense of possession of a firearm after conviction of a felony (PC12021, subd. (a)(1))? (2) Was defendant properly sentenced to concurrent terms for his simultaneous possession of two firearms in violation of PC 12021(a)(1)?
People v. Manzo REV GTD (5/18/2011, S191400) 192 CA4th 366: Could defendant be convicted of discharging a firearm at an occupied motor vehicle in violation of PC 246, if he was outside the vehicle at the time he discharged his firearm but the firearm itself was inside the vehicle?
People v. Avila REV GTD (5/18/2011, S191317) 2011 Cal. App. Unpub. LEXIS 966: Briefing deferred pending decision in People v. Favor REV GTD (3/16/2011, S189317) 190 CA4th 770, which presents the following issue: In order for an aider and abettor to be convicted of attempted willful, deliberate and premeditated murder by application of the natural and probable consequences doctrine, must a premeditated attempt to murder have been a reasonably foreseeable consequence of the target offense or offenses, or is it sufficient that an attempted murder would be reasonably foreseeable?
The following case was transferred for reconsideration in light of People v. Hernandez (2011) 51 C4th 733:
People v. Sanchez REV GTD (4/14/2010, S179903) 180 CA4th 763.
California Courts of Appeal (May 1-31, 2011)
Evidence: Prior Trials. People v. Spector (5/2/2011, B216425) 194 CA4th 1335: No error in admitting video showing trial judge and criminalist discussing blood spatter evidence during a first trial.
Evidence: Uncharged Crimes. People v. Spector (5/2/2011, B216425) 194 CA4th 1335: The trial court did not err by admitting “other crimes” evidence regarding appellant’s gun assaults on additional women.
Evidence: Generic Threats. People v. Spector (5/2/2011, B216425) 194 CA4th 1335: No error in the admission of “generic threat” evidence.
Sex Offender Registration. People v. Kennedy (5/4/2011, H035687) 194 CA4th 1484: Where felony conviction requiring registration is reduced to a misdemeanor, the defendant is not relieved of the lifetime registration requirement.
Pimping. People v. Grant (5/5/2011, A128728) 195 CA4th 107: Pimping statute does not violate a defendant’s right of association by prohibiting him from living with and deriving support from the earnings of a known prostitute.
Pimping: Knowledge Element. People v. Grant (5/5/2011, A128728) 195 CA4th 107: The defendant was convicted of pimping on the claim that the defendant lived and derived “support and maintenance in whole or in part from the earnings and proceeds of said person’s prostitution.” Even though the statute (PC 266h(a)) doesn’t include a knowledge requirement, the defendant must know that she’s contributing to living expenses from the proceeds of prostitution.
Evidence: Surveillance Videos As Business Records. People v. Sherow (5/9/2011, D056988) 195 CA4th 228: The trial court acted within its discretion in admitting surveillance videos under the business records exception to the hearsay rule.
Burglary: Consent Defense – Prosecution Must Prove Beyond A Reasonable Doubt. People v. Sherow (5/9/2011, D056988) 195 CA4th 228: The trial court erred in instructing the jury on the consent defense to burglary.
Priors Committed Prior To Age 14: Jury Must Be Instructed On PC 26 Re: Appreciation Of Wrongfulness. People v. Cottone (5/9/2011, G042923) 195 CA4th 245: The DA here was permitted to use a 32-year old prior incident, when the defendant was 13 and molested his 5-year old sister. The defendant was never charged or convicted of that prior offense. Of course, had he been charged, PC 26 would have applied. That section says that children under 14 can’t commit crimes unless there’s clear proof that the minor appreciated the wrongfulness of the act. This rebuttable presumption applies to EC 1108 evidence and the jury must be instructed that the PC 26 requirement is a prerequisite to application of EC 1108.
Sentencing Juveniles To Sentences That Are Effectively Life Terms. Graham v. Florida (2010) ____ US ____ [176 LEd2d 825; 130 SCt 2011] held that the Eighth Amendment prohibits imposition of a life without parole (LWOP) sentence on a juvenile offender who did not commit a homicide. People v. Mendez (2010) 188 CA4th 47 relied on Graham to conclude that it is unconstitutional to give a juvenile what is effectively a LWOP sentence, even if it is not actually LWOP. (Compare People v. Ramirez (2011) 193 CA4th 613.) People v. Nunez (5/10/2011, G042873) 195 CA4th 414 disagreed with Ramirez, and held that when the sentence imposed effectively precludes parole for the actual lifetime of a juvenile, it violates Graham.
False Claims. People v. Butler (5/11/2011, B218946) 195 CA4th 535: The offense of presenting multiple claims for the same loss is not limited to the presentation of multiple claims to more than one insurer, but also applies where multiple claims are presented to one or more individuals.
Improper Instruction On Theft By Larceny. People v. Butler (5/11/2011, B218946) 195 CA4th 535: Appellant contended the court erred by instructing on theft under a theory of larceny (PC 484) instead of theft by false pretenses (PC 532). The Court of Appeal agreed. Theft by larceny requires that the property be taken without the owner’s consent. If the owner consents to the taking, there is no trespass and, therefore, no larceny. Theft by false pretenses requires a showing that defendant deceived the owner of the property by false representations, intending to persuade the owner to allow the defendant to take possession and ownership of the property and that the owner relied on the pretense in allowing the defendant to take the property. It also requires corroboration such as a writing or testimony regarding the pretense. Thus, it was error for the trial court not to instruct on the elements of theft by false pretense.
Animal Neglect. People v. Riazati (5/11/2011, D056670) 195 CA4th 514: PC 597(b) (animal neglect) requires a finding that defendant committed a grossly negligent act or omission that created a high risk of death or great bodily injury to an animal.
Aranda/Bruton. People v. Arceo (5/12/2011, B218758) 195 CA4th 556: The Confrontation Clause has no application to out-of-court nontestimonial statements, including statements by nontestifying codefendants. (People v. Gutierrez (2009) 45 C4th 789, 812; United States v. Gigueroa-Cartagena (1st Cir. 2010) 612 F3d 69, 85.) The Bruton rule does not apply to nontestimonial statements of nontestifying codefendants. The admission of statements possessing sufficient indicia of reliability to fall within the hearsay exception for declarations against interest does not deny a defendant the right of confrontation. (See People v. Cervantes (2004) 118 CA4th 162, 176-177; People v. Greenberger (1997) 58 CA4th 298, 330-331.)
Miranda. People v. Racklin (5/19/2011, A128857) 195 CA4th 872: The exclusionary remedy for a Miranda violation applies in criminal trials, but neither California nor federal law extends the remedy to probation revocation proceedings. (See In re Martinez (1970) 1 C3d 641, 648-650 [in parole revocation hearing, could consider a confession not under Miranda].) Even if error, the defendant must show prejudice under Chapman, and he could not.
Melendez-Diaz. People v. Perez (5/19/2011, D056301, D056442) 195 CA4th 801: Admission of records of the defendant’s prior convictions, known as the PC 969b packet, did not violate his Sixth Amendment rights under Melendez-Diaz v. Massachusetts (2009) 557 US ____ [174 LEd 2d 314; 129 SCt 2537], since they are not prepared primarily for use in a subsequent trial where the prior convictions would be relevant, and therefore they are not testimonial.
SVP. People v. Superior Court (Rigby) (5/19/2011, G043937) 195 CA4th 857: The trial court acted in excess of its jurisdiction in allowing an inmate to petition for a conditional release when two petitions were pending to extend his commitment as a sexually violent predator (SVP).
Gun Use: Circumstantial Evidence. People v. Law (5/20/2011, C063221) 195 CA4th 976: Circumstantial evidence may be relied on as evidence of gun use.
Proof That A Prior From Out Of State Qualifies As A Strike Prior. People v. Roberts (5/24/2011, H035158) 195 CA4th 1106: The nature of a prior conviction may not be proven by the record of statements made after a plea of guilty on the basis that there was an adoptive admission under an exception to the hearsay rule.
Prior Conviction Enhancements Only Applicable To Aggregated Sentence. People v. Edwards (5/24/2011, E049845) 195 CA4th 1051: In a case with various enhancements for prior drug convictions attached to different counts pursuant to HS 11370.2(a) and (c), the status enhancement may only be applied once to the aggregated sentence rather than applied to separate counts. Enhancements based on prior convictions are status enhancements. HS 11370.2 is arguably ambiguous because there are three sets of qualifying offenses in three separate subdivisions. In the absence of an express intention to create an exception to the rule that status enhancements only apply once, it is presumed that the Legislature did not intend the enhancements to attach to each separate qualifying count.
Out-Of-State Prior Re: Wobblers. People v. Eckard (5/25/2011, B224292) 195 CA4th 1241: An out-of-state misdemeanor conviction for indecent exposure does not trigger the felony sentencing provision of PC 314.
Gang Expert May Provide Sufficient Evidence For Enhancement. People v. Galvez (5/25/2011, B222672) 195 CA4th 1253: A challenge to the sufficiency of the evidence to support a gang enhancement pursuant to PC 186.22(b) will not prevail when there is expert opinion testimony, with an underlying evidentiary foundation, that the crime of dissuading a witness was for the benefit of, or at the direction of, or in association with the gang. The decision follows People v. Albillar (2010) 51 C4th 47, in holding there was sufficient evidence.
Dissuading A Witness From Reporting Crime (PC 136.1). People v. Galvez (5/25/2011, B222672) 195 CA4th 1253: PC 136.1(b)(1), which defines the crime of attempting to prevent or dissuade a witness to a crime from reporting the crime to law enforcement, applies without regard to whether the person sought to be dissuaded was the victim of the crime.
Shoplifting Alcohol Not Gang Related. In re Daniel C. (5/26/2011, A129408) 195 CA4th 1350: A gang expert’s opinion that shoplifting alcohol would be gang related as “putting in work” for the gang is insufficient to invoke the gang enhancement.
Turning Without A Signal Is Only Illegal If Other Vehicles Might Be Affected. People v. Carmona (5/27/2011, G043846) 195 CA4th 1385: A turn without signaling, when no other vehicle might be affected, is not a traffic violation which supports a traffic stop and a subsequent parole search.
Mere Proximity Does Not Establish Constructive Possession: Possession By A Fellow Gang Member Not Sufficient. People v. Sifuentes (5/27/2011, G041225) 195 CA4th 1410: The possession of a gun by a fellow gang member occupying the same motel room does not equate to possession by a felon based on constructive possession. Officers went to a motel room rented by Sifuentes who had a “no-bail” parole arrest warrant. Another occupant of the room, a fellow gang member Lopez, was located next to a mattress that concealed a loaded handgun. There was insufficient evidence to support Sifuentes’ conviction for being a felon in possession of the firearm based on the doctrine of constructive possession. There was a failure to prove that he knowingly exercised a right of control over the firearm, either directly or through another person. Mere proximity, standing alone, is not sufficient evidence of possession.
Boating Hit And Run. People v. Guzman (5/27/2011, F057633) 195 CA4th 1396: Harbors and Navigation Code 656.2 is analogous to VC 20003 and the duty to render assistance in a boating accident and to identify one’s self to the victim and peace officers does not violate the Fifth Amendment right against self-incrimination.
The Law Of Grand Juries And Indictments. McGill v. Superior Court (5/31/2011, G043778) 195 CA4th 1454: A person subject to indictment by a grand jury must be afforded certain protections: the prosecution cannot bring the charge of perjury before the same jury that heard the questioned testimony because they already have a “state of mind in reference to the case”; the alleged perjuror is entitled to notice of the right to bring exculpatory evidence to the attention of the grand jury; and, the prosecutor’s instructions to the jury must focus on the elements of materiality and knowledge of falsity.
One Strike. People v. Woodward (5/31/2011, C063517) 196 CA4th 1143: Application of the One Strike law does not require the prosecution to allege that defendant is ineligible for probation.
U.S. Supreme Court
(May 1-31, 2011)
Not Permitting A Capital Jury To Consider Lesser Offenses. Bobby v. Mitts (5/2/2011, No. 10-1000) ____ US ____ [179 LEd2d 819; 131 SCt 1762]: The logic of Beck v. Alabama (1980) 447 US 625 [65 LEd2d 392; 100 SCt 2382] is not directly applicable to penalty phase proceedings. And, in any event, the jury here was specifically instructed on two additional sentencing options if they decided against death.
9th Circuit Court of Appeals
(May 1-31, 2011)
Dismissal Of Holdout Juror: Judge Erroneously Inquired Into And Relied On Matters Related To Deliberations. People v. Cleveland (2001) 25 C4th 466, holds that a juror can be excused only on a showing of a demonstrable reality that the juror was refusing to deliberate or prejudged the case or wouldn’t follow the instructions. In Williams v. Cavazos (5/23/2011, 9th Cir. No. 07-56127) 2011 U.S. App. LEXIS 10345, the reasons given by the trial judge for kicking the juror off all related to the substance of the jury deliberations, a matter which the court is absolutely barred from inquiring about, let alone relying on.
Gang Enhancement Applies To Any Criminal Conduct. Emery v. Clark (5/27/2011, 9 Cir. No. 08-55249) 2011 U.S. App. LEXIS 10679: The California Supreme Court’s decision in People v. Albillar (2010) 51 C4th 47 provided the authoritative interpretation of the gang enhancement in PC 186.22(b)(1) and contrary interpretations by the Ninth Circuit are overruled. The specific intent to promote, further, or assist in any criminal conduct by a gang member is unambiguous and applies to any criminal conduct, without a further requirement that the conduct be apart from the criminal conduct underlying the offense of conviction sought to be enhanced.