CALIFORNIA CASE LAW UPDATE – Selected California Cases
California Supreme Court (May 1-31, 2013)
Felony Reduced To Misdemeanor Per PC 17(b) Is Not A “Serious Felony.” People v. Park (5/13/2013, S193938) 56 CA4th 782: Prior felony which was reduced to misdemeanor pursuant to PC 17(b) no longer qualifies as a prior serious felony for purposes of a five-year enhancement under PC 667(a).
California Supreme Court (May 1-31, 2013)
Grants of Review:
Johnson v. Superior Court REV GTD (5/1/2013, S209167) [Unpublished] 2013 WL 363780. Petition for review after the Court of Appeal reversed the judgment denying a petition for writ of mandate: Do the equal protection principles of People v. Hofsheier (2006) 37 CA4th 1185 bar mandatory sex offender registration for a defendant convicted of oral copulation between a “person over the age of 21 years” and a “person who is under 16 years of age” (PC 288a(b)(2))?
People v. Whitmer REV GTD (5/1/2013, S208843) 213 CA4th 122: Was defendant properly sentenced on multiple counts of grand theft or did his multiple takings constitute a single offense under People v. Bailey (1961) 55 CA2d 514?
People v. Meraz REV GTD (5/1/2013, S208967) Unpublished 2013 WL 222705: Briefing deferred pending decision in People v. Gutierrez REV GTD (1/3/2013, S206365) 209 CA4th 646 and People v. Moffett REV GTD (1/3/2013, S206771) 209 CA4th 1465, which present issues concerning the sentencing of juvenile offenders under PC 190.5(b), in light of Miller v. Alabama (Nos. 10-9646 & 10-9647, 6/25/2012) ___ US ___ [183 LEd2d 407; 132 SCt 2455].
People v. Powell REV GTD (5/15/2013, S210044) 214 CA4th 106: Briefing deferred pending decision in People v. Williams REV GTD (10/12/2011, S195187) 197 CA4th 339 which presents the following issue: Can a conviction for robbery be based on the use of force in the attempt to escape after committing the crime of theft by false pretenses as opposed to theft by larceny?
Review in the following cases was dismissed in light of People v. Lopez (2012) 55 CA4th 569, People v. Dungo (2012) 55 CA4th 608, People v. Rutterschmidt (2012) 55 CA4th 650, and Williams v. Illinois (2012) ___ US ___ [___ LEd2d ___; 132 SCt 2221]:
People v. Chikosi REV GTD (8/11/2010, S184190) 185 CA4th 238.
People v. Miller REV GTD (11/10/2010, S186758) 187 CA4th 902.
People v. Thompson REV GTD (2/16/2011, S188661) 2010 Cal. App. Unpub. LEXIS 8978.
People v. Smith REV GTD (6/15/2011, S192048) 193 CA4th 1.
People v. Kelley REV GTD (7/20/2011, S193395) 2011 Cal. App. Unpub. LEXIS 2920.
People v. Shockman REV GTD (7/20/2011, S193189) 193 CA4th 1607.
People v. Davis REV GTD (1/11/2012, S198061) 199 CA4th 1254.
People v. Reese REV GTD (1/25/2012, S198269) 2011 Cal. App. Unpub. LEXIS 8095.
People v. Rivera REV GTD (5/9/2012, S200398) 2012 Cal. App. Unpub. LEXIS 969.
The following cases were transferred for reconsideration in light of People v. Lopez (2012) 55 CA4th 569, People v. Dungo (2012) 55 CA4th 608, People v. Rutterschmidt (2012) 55 CA4th 650, and Williams v. Illinois (2012) ___ US ___ [132 SCt 2221]:
People v. Gutierrez REV GTD (12/2/2009, S176620) 177 CA4th 654.
People v. Anunciation REV GTD (3/18/2010, S179423) 2009 Cal. App. Unpub. LEXIS 10128.
People v. Schwarz REV GTD (3/30/2010, S180445) 2010 Cal. App. Unpub. LEXIS 378.
People v. Benitez REV GTD (5/12/2010, S181137) 182 CA4th 194.
People v. Bowman REV GTD (6/9/2010, S182172) 182 CA4th 1616.
People v. Davis REV GTD (12/21/2010, S187515) 2010 Cal. App. Unpub. LEXIS 7295.
People v. Archuleta REV GTD (3/28/2012, S199979) 202 CA4th 493.
People v. Alger REV GTD (4/11/2012, S200663) 2012 Cal. App. Unpub. LEXIS 793.
California Courts of Appeal (May 1-31, 2013)
Amendment Of Pleadings. People v. McCoy (5/3/2013, C067380) 215 CA4th 1510: It was not error to allow amendment of the information to add torture allegations that were supported by evidence taken at the preliminary hearing.
CC 1045 Is Accurate. People v. McCoy (5/3/2013, C067380) 215 CA4th 1510: Unlawful sexual penetration requires that the act of penetration be done with the specific intent to gain sexual arousal or gratification or to inflict abuse. This intent requirement does not extend to the act of force, violence, duress, menace, or fear of immediate and unlawful bodily injury. CALCRIM 1045 accurately described the crime of unlawful sexual penetration and the court did not err by giving the instruction.
Pitchess: Judge Must Personally Examine The Records. Sisson v. Superior Court (5/6/2013, D063022) 216 CA4th 24: When conducting an in camera Pitchess review, a trial court must examine the records itself; it may not rely on the custodian’s assessment of the discoverability of information contained in the records.
SVP: Conditional Release Program. People v. Smith (5/7/2013, A135760) 216 CA4th 947: Trial court erred in denying conditional release petition under Sexually Violent Predator Act without a hearing.
Minor Defendant’s Right To Psychologists Who Would Respect Lawyer-Client Privilege. Elijah W. v. Superior Court (5/8/2013, B241011) 216 CA4th 140: Minor defendant was entitled to his choice of expert psychologist who would not report confidential information about child abuse or threats.
Demand For Job As Extortion. People v. Fisher (5/10/2013, C070295) 216 CA4th 212: Defendant’s demand for a job, coupled with a threat to commit vandalism if not hired, was extortion, as the job constituted “property” under the statute.
Cell Call Data As Business Record. People v. Zavala (3/7/2013, G046268) 214 CA4th 299: (5/13/2013, D062125) 216 CA4th 242: Printed compilation of automatically generated and stored cell call data produced by human query is admissible as a business record where kept by a reliable computer program in the regular course of business.
Failure To Secure Aggressive Dog. People v. Flores (5/13/2013, A135252) 216 CA4th 251: Conviction for violating PC 399(b) upheld where defendant failed to use ordinary care in securing his aggressive dog, who got loose and inflicted injury.
DNA: Nonexclusion Evidence. People v. Her (5/14/2013, C069153) 216 CA4th 977: DNA nonexclusion evidence is relevant and admissible in the absence of supporting statistical evidence regarding the percentage of the population that could be excluded.
Partial DNA Properly Admitted. People v. Her (5/14/2013, C069153) 216 CA4th 977: Defendant’s conviction of first degree burglary and first degree murder affirmed where the trial court was within its discretion to admit partial DNA profile evidence without accompanying statistical analysis.
Recanting Witness: All Parties Must Be Informed. People v. Wilson (5/15/2013, B234519) 216 CA4th 342: When a witness refuses to testify and the prosecution intends to introduce prior testimony from the preliminary hearing, the parties, including the prosecutor, must be informed of the witness’ recantation of the earlier testimony.
Three Strikes Reform Act: Retroactivity. People v. Lewis (5/15/2013, E055569) 216 CA4th 468: The provisions of the Three Strikes Reform Act (Reform Act) are applicable to judgments not final as of its effective date.
Grant Of New Trial Doe Not Implicate Double Jeopardy. People v. Lopez (5/16/2013, B241532) 216 CA4th 411 [156 CR3d 723]: An order granting a new trial pursuant to PC 1181(6) is the equivalent of a mistrial caused by a hung jury and does not implicate double jeopardy for the purpose of retrial.
Belated Amendment Of Charges. People v. Fernandez (5/20/2013, B236009) 216 CA4th 540: Where a defendant has a reasonable opportunity to prepare and present a defense and is not taken by surprise by evidence offered at trial, the court may permit amendment of the accusatory pleading up to and including the close of trial.
CC 3501: Jones Modification. People v. Fernandez (5/20/2013, B236009) 216 CA4th 540: The court found no error with the use of modified CALCRIM 3501 rather than CALCRIM 3501 [unanimity instructions]. When there is no reasonable likelihood of juror disagreement as to particular acts and the only question is whether or not the defendant in fact committed all of them, the jury should be given a modified unanimity instruction which, in addition to allowing a conviction if the jurors unanimously agree on specific acts, also allows a conviction if the jury unanimously agrees the defendant committed all the acts described by the victim. (People v. Jones (1990) 51 CA3d 294, 322.)
Juror Misconduct: Reading Prior Appellate Opinion. People v. Pizarro (5/21/2013, F057722) 216 CA4th 658: A juror’s failure to follow the court’s instruction to not consider anything other than evidence at trial, by reading a prior appellate opinion on the case was misconduct calling for reversal.
Proposition 36: Appeal. People v. Hurtado (5/28/2013, B246330) 216 CA4th 941: Trial court’s order denying Proposition 36 resentencing petition is an appealable order after judgment.
Prior Drug Conviction Enhancement. People v. Oakley (5/28/2013, C070776) 216 CA4th 1241: Enhancement for prior drug conviction applies to defendant who transports drugs for personal use.
9th Circuit Court of Appeals
(May 1-31, 2013)
Government’s Destruction Of Evidence Requires Remedial Instruction. United States v. Sivilla (5/7/2013, 9th Cir. No. 11-50484) 714 F3d 1168: Where there is no bad faith, government’s pretrial destruction of evidence does not warrant dismissal of the case, but court should have given remedial jury instruction. The trial court erred in holding that bad faith is required to obtain a remedial jury instruction regarding the destruction of evidence; whether such instruction should be given is determined based on a balancing test in which the court examines the nature and quality of any available secondary evidence.
United States Supreme Court
(May 1-31, 2013)
Procedural Default: Ineffective Counsel As Exception. Trevino v. Thaler (5/28/2013, No. 11-10189) ___ US ___ [___ LEd2d ___; 133 SCt 1911]: The exception to the procedural default rule laid out in Martinez v. Ryan (2012) 566 US 1 applies where a state’s procedural rules effectively prevent a defendant from raising ineffective assistance of counsel (IAC) claims on direct appeal.
AEDPA Statute Of Limitations: Actual Innocence Claim. McQuiggin v. Perkins (5/28/2013, No. 12-126) ___ US ___ [___ LEd2d ___; 133 SCt 1924]: Statute of limitations prescribed in the Antiterrorism and Effective Death Penalty Act (AEDPA) may be overcome by credible claim of actual innocence.