CALIFORNIA CASE LAW UPDATE – Selected California Cases
California Supreme Court (November 1, 2006-November 30, 2006)
People v. Neidinger (11/20/2006, S133798) 2006 Cal. LEXIS 13530: PC 278.5 criminalizes taking or withholding a child and maliciously depriving the lawful custodian of custody or visitation. PC 278.7(a) says that PC 278.5 doesn’t apply to a person who has a right to custody of the child and acts with a good faith and reasonable belief that the child, if left with the other person, will suffer immediate bodily injury or emotional harm. Neidinger holds that the defense has the burden of presenting some evidence to raise the defense. Once the defense raises the defense, the DA then has the burden of disproving it beyond a reasonable doubt.
People v. Kelly (11/27/2006, S133114) 2006 Cal. LEXIS 13945: Although federal constitution does not requires states to afford appellate review of judgments (McKane v. Durston (1894) 153 US 684 [38 LEd 867; 14 SCt 913] ), every state has chosen to do so. (In re Sade D. (1996) 13 C4th 952, 966.) Having provided appeals as a matter of right, the state must provide indigent defendant with counsel. (Douglas v. California (1963) 372 US 353, 355 [9 LEd 2d 811; 83 SCt 814].) Appointed counsel must act as an active advocate. (Anders v. California (1967) 386 US 738 [18 LEd2d 493; 87 SCt 1396].)
People v. Kelly (11/27/2006, S133114) 2006 Cal. LEXIS 13945: California Constitution (art. VI, sec. 14) requires that Wende decisions (People v. Wende (1979) 25 C3d 436 [no-merit cases]) must be in writing with reasons stated. The opinion must describe the defendant’s arguments and the reasons they fail. The decision should also include a brief description of the facts and the procedural history of the case. The court instructs the courts of appeal to include this information in future decisions.
People v. Wright (11/27/2006, S128442) 2006 Cal. LEXIS 13946: The Compassionate Use Act (CUA) did not provide an affirmative defense to transportation of marijuana for medical purposes, but the Medical Marijuana Program (MMP) does, and it applies retroactively to cases pending at time of its enactment. It was therefore error for the trial court to refuse to instruct on the defense, because the defendant raised a reasonable doubt as to facts supporting such a defense. (People v. Mower (2002) 28 C4th 457, 464.)
Grants Of Review:
People v. Chance REV GTD (11/1/2006, S145458) 141 CA4th 618: Could defendant be convicted of assault with a firearm on a peace officer when his gun was pointing in the opposite direction from the officer and there was no bullet in the firing chamber, or, on such facts, would a battery not have “immediately” resulted from his conduct and did he lack the “present ability to inflict injury” within the meaning of PC 240?
People v. Lamas REV GTD (11/1/2006, S145231) 141 CA4th 604: Can the offense of active participation in a criminal street gang, which requires among other things that the defendant have “willfully promote[d], further[ed], or assist[ed] in any felonious criminal conduct by members of that gang” (PC 186.22(a)), be based on committing the offense of carrying a loaded firearm in a public place, which is generally a misdemeanor but is a felony if the defendant “is an active participant in a criminal street gang, as defined in subdivision (a) of [s]ection 186.22” (PC 12031(a)(2)(C))?
People v. Concepcion REV GTD (11/15/2006, S146288) 141 CA4th 872: (1) Is a defendant who escapes from custody after trial commences voluntarily absent from trial, permitting trial to continue in his absence once he is rearrested and held in custody? (2) If such flight and rearrest does not constitute voluntary absence, is proceeding with trial in such circumstances subject to harmless error analysis, or is it a structural error requiring reversal?
People v. Nelson REV GTD (11/15/2006, S147051) 142 CA4th 696: (1) Is the methodology for assessing the statistical significance of a “cold hit” from a DNA database a novel scientific question requiring proof of general scientific acceptance under People v. Kelly (76) 17 C3d 24 and People v. Leahy (94) 8 C4th 587? (2) How should the statistical significance of a “cold hit” from a DNA database be calculated?
People v. Johnson REV GTD (11/15/2006, S146207) 141 CA4th 1161: Briefing deferred pending decision in [NF] People v. Gomez REV GTD (3/22/2006, S140612) 134 CA4th 1241 which presents the following issue: Can a defendant be convicted of robbery for using force or fear in the victim’s immediate presence while carrying away stolen property, or does such a conviction require that the defendant use force or fear in the victim’s immediate presence while taking the property or preventing the victim from regaining it?
California Courts of Appeal (October 24, 2006-November 30, 2006)
People v. Grandy (10/24/2006, B186687) 144 CA4th 33: Held that where the defendant aimed his gun and pulled its trigger, causing an explosion in its firing chamber, this constituted a discharge within the meaning of section PC 12022.53(c) even though the gun malfunctioned and did not actually emit a bullet. (See People v. Palmer (2005) 133 CA4th 1141, 1148 1153 [the imposition of PC 12022.53(d) regardless of whether the bullet caused injury; the firing of the gun alone, caused the victim to break his ankle].)
People v. Tackett (10/31/2006, C044770) 144 CA4th 445: Held that evidence that the alleged victim of a fatal traffic collision caused by an intoxicated driver, who was the passenger with the defendant, was found driving under the influence of alcohol on two occasions, was not admissible as character evidence under EC 1103(a)(1) to show that alleged victim was in fact the driver of the car. Additionally, the court did not err in excluding evidence of other incidents that the passenger was involved in under EC 1101(b) either to prove the alleged victim’s identity as the driver, or to show he had a common plan of reckless and drunken driving, of which the traffic collision was one manifestation.
People v. Mutuma (11/1/2006, F048799) 144 CA4th 635: Held that any three violations for which points are assessed against the driver’s license under VC 12810, are predicate offenses under VC 2800.2. The Court of Appeal found that the judge not the jury makes that finding. Therefore, if the jury finds that such violations have occurred, it is unnecessary for it to specifically find willful and wanton disregard. If the claimed predicate offenses are not enumerated in VC 12810, but arguably fall into a catch all provision of that section assessing one point for all violations “involving the safe operation of a motor vehicle upon the highway,” the judge, not the jury, decides whether the claimed predicate offenses satisfy that description.
People v. Dalerio (11/7/2006, A110408) 144 CA4th 775: Normally, you can’t have a kidnapping without the use of force. However, PC 207(b) makes movement by deception a kidnap, but only for victims under 14 and only where the deception is for the purpose of committing a PC 288. Michele D. ((2002) 29 C4th 600) held that the amount of force required to kidnap an unresisting infant or child is the amount of force required to move the child a substantial distance for an illegal purpose. In Dalerio a defendant deceived a nine-year old child into voluntarily accompanying him and then escorted the child a substantial distance before attempting to kill her, committed kidnapping under PC 207(e). (See Parnell v. Superior Court (1981) 119 CA3d 392.)
People v. McDuffie (11/9/2006, A111738) 144 CA4th 880: A trial court may order the involuntary administration of antipsychotic medications to render a def. competent to stand trial, but only on certain showings. (See Sell v. United States (2003) 539 US 166 [156 LEd2d 197; 123 SCt 2174], codified in PC 1370.) One of those showings is that there is a substantial likelihood that administration of the drugs will render the def. competent. The expert here said that there was a 50% to 60% chance of success. McDuffie held that this is not substantial evidence that there is a substantial likelihood of success.
In re Carleisha P. (11/9/2006, B184948) 144 CA4th 912: PC 12101(b) (possession of live ammunition by minor) is violated only once even if a person possesses three different kinds of ammunition. A single crime cannot be fragmented into more than one offense. (People v. Rouser (97) 59 CA4th 1065, 1073.)
People v. Mesa (11/14/2006, B184186) 2006 Cal. App. LEXIS 1793: Held that counsel’s failure to object, during the prosecutor’s closing argument, to a potential Griffin v. California (1965) 380 US 609, 615 [14 LEd2d 106; 85 SCt 1229] violation, (mentioning the defendant’s silence at trial), forfeited that claim on appeal, and the Court of Appeal found that if there was error, it was harmless, and it would not have changed the result under Strickland v. Washington (1984) 466 US 668, 686 687 [80 LEd2d 674; 104 SCt 2052].
Hurd v. Superior Court (Los Angeles Police Department) (11/15/2006, B184870) 2006 Cal. App. LEXIS 1802: Held that section PC 1054.9 authorizes a pre habeas corpus motion for discovery of police officer personnel records pursuant to Pitchess, EC 1043, and In re Steele (2004) 32 C4th 682; however, if the motion for such records was not made in the initial proceeding, petition must show that the records are material to the habeas corpus claims, and that they are cognizable on habeas corpus. The Court of Appeal found that the requested discovery immaterial, and because the proposed claims are not cognizable on habeas, the writ is denied.
People v. Alvarado (11/16/2006, G036766) 2006 Cal. App. LEXIS 1800: Under PC 786, when property is received in one county with knowledge it had been stolen, and it had been stolen in another county, venue lies in either county. Government does not have to show that defendant knew from what county the property was stolen.
People v. Aleem (11/17/2006, A109515) 2006 Cal. App. LEXIS 1805: Specified sexual offenses committed in several counties may be joined and tried in any of those counties, so long as the DA in the other counties agrees in writing. (PC 784.7.) Written agreement by ANY of the DAs is sufficient.
People v. Russell (11/21/2006, H029753) 2006 Cal. App. LEXIS 1832: Judge erred by not instructing sua sponte on mistake-of-fact and claim-of-right defenses when defendant testified that he found the motorcycle next to some dumpsters behind a motorcycle shop (where the owner had in fact left it) and thought it had been abandoned.
People v. Superior Court (Humberto S.) (11/22/2006, B193386) 2006 Cal. App. LEXIS 1841: DA properly recused from participating in juvenile proceeding after making “significant efforts to prevent disclosure” of victim’s records after subpoena by minor’s counsel. The prosecutors’ actions “demonstrated a one-sided perspective on the role of the prosecution and an apparent attempt to represent the victim’s interest in protecting her privacy that exceeded the exercise of balanced discretion necessary to ensure a just and fair trial.” The motion practice “appeared designed not to adhere to the statutory procedures to preserve the integrity of the process, but instead to block minor’s counsel from access to records potentially critical to his defense.”
People v. Marchman (11/27/2006, C048996) 2006 Cal. App. LEXIS 1854: Prosecutor has no authority to file an MDO recommitment petition unless medical director of treating hospital determines that mental disorder is not in remission or cannot be so kept. Judge erred in denying defendant’s motion to dismiss.
Ninth Circuit Court of Appeal (November 1-November 30)
Lankford v. Arave (9th Cir., 11/7/2006, No. 99-99015) 2006 U.S. App. LEXIS 27466: Counsel who requested critical jury instructions that were correct under federal law but clearly in error under Idaho law rendered prejudicial ineffective assistance. There was no reasonable tactical advantage in requesting an erroneous jury instruction that allowed the jury to give the accomplice’s testimony greater weight that it was entitled to. They were the result of a misunderstanding of the law.
United States v. Arreola (9th Cir., 11/8/2006, No. 04-10504) 2006 U.S. App. LEXIS 27557: The terms “possesses” and “uses or carries” define a single offense under 18 USC 924(c) (use or possession of firearm during commission of drug trafficking offense). The statute describes alternative means of committing the same offense.
United States v. Zakharov (9th Cir., 11/15/2006, No. 03-50214) 2006 U.S. App. LEXIS 28203: Determination of constitutional nexus jurisdiction is properly within province of judge, not jury, at least when underlying facts are not contested. Sufficient nexus between United States and defendant’s drug-smuggling activities shown. Note that the defendant was on board a Belizean-flag vessel, 500 miles off the coast of southern Mexico, in international waters. The vessel was subject to this country’s statutory jurisdiction because Belize has an agreement with the United States. Constitutional jurisdiction existed because the attempted transaction (smuggling 9,600 kilos of cocaine) was aimed at causing criminal acts in the United States. There was evidence the cocaine was intended for the United States.