CALIFORNIA CASE LAW UPDATE – Selected California Cases
California Supreme Court (November 1, 2007-November 30, 2007)
People v. Morgan (11/15/07, S055130) 2007 Cal. LEXIS 12821: A conviction must be set aside where the jury has been presented with both a legally adequate theory and a legally inadequate theory of the offense and the record does not reflect the theory on which the jury based its conviction. In 1994, appellant forced the victim a distance and then sexually assaulted, beat, and strangled her. She went into traumatic shock and died as a result of her injuries and loss of blood. Appellant was convicted of felony murder based on the underlying crimes of kidnap and unlawful penetration. As to the kidnap, the prosecutor argued that the requirement of a movement of substantial distance for a finding of kidnap could be established on the basis of either (1) the distance the victim was moved, or (2) distance in combination with other factors. Because the case law in effect at the time of the offense, held that the determining factor in the crime of kidnap is the actual distance of the victim’s movements, the second theory was inadequate. (People v. Caudillo (78) 21 C3d 562, 572.) [Caudillo was overruled by People v. Martinez (99) 20 C4th 225, 237, 239, which allowed for consideration of factors in addition to distance but Martinez is expressly non-retroactive.] As the record did not establish on which theory the jury based its conviction for kidnap, the Court agreed that the kidnap conviction must be set aside. However sufficient evidence supporting a kidnap conviction existed so as to permit retrial of the kidnap charges. (People v. Hayes (90) 52 C3d 577.) The Court rejected appellant’s argument that the crime of unlawful penetration merged with the homicide (People v. Ireland (69) 70 C2d 522) because unlawful penetration, unlike assault in the Ireland doctrine, has a felonious purpose independent from homicide — namely, to sexually arouse, gratify or abuse.
Chambers v. Superior Court of San Diego County (San Diego Police Dep’t) (11/26/2007, S143491) 2007 Cal. LEXIS 13173: Derivative information, developed by independent investigation after Pitchess disclosure in an earlier case, is not generally subject to the statutorily required protective order when a subsequent defendant files his or her own Pitchess motion and receives the name of the same complainant to which the derivative information pertains.
People v. Mendoza (11/29/2007, S067678) 2007 Cal. LEXIS 13313: Defendant’s convictions and death sentence for first degree murders, attempted murders, and assault with a semiautomatic firearm, are affirmed on automatic appeal over claims of error regarding: 1) a failure to exclude testimony that a victim accused defendant of sexually molesting her; 2) prosecutorial misconduct; 3) the constitutionality of the death penalty statute and instructions; 4) cumulative error; and 5) the Vienna Convention on Consular Rights and a related judgment.
Grants Of Review:
People v. Gaines REV GTD (11/28/2007, S157008) 2007 Cal. App. Unpub. LEXIS 6993: Is outright reversal or a remand for a showing of prejudice the appropriate remedy for a trial court’s erroneous denial of a Pitchess motion (Pitchess v. Superior Court (74) 11 C3d 531)?
People v. Ayala REV GTD(11/28/2007, S157148) 155 CA4th 604 and People v. Lacerda REV GTD (11/28/2007, S157590) 2007 Cal. App. Unpub. LEXIS 7621: Briefing in Ayala and Lacerda deferred pending decision in People v. French REV GTD(2/7/2007, S148845) 2006 Cal. App. Unpub. LEXIS 9689, which includes the question whether the trial court violated defendant’s Sixth Amendment right to a jury trial, as interpreted in Cunningham v. California (2007) 549 US ____ [166 LEd2d 856; 127 SCt 856], by imposing an upper term sentence based on aggravating factors not found true by the jury, where the defendant entered a no contest plea and was sentenced in accordance with his plea agreement.
People v. Goodsby REV GTD (11/28/2007, S156854) 2007 Cal. App. Unpub. LEXIS 7087, People v. Guerrero REV GTD (11/28/2007, S156049) 2007 Cal. App. Unpub. LEXIS 6704, and People v. Ramos REV GTD (11/28/2007, S157451) 2007 Cal. App. Unpub. LEXIS 7352: Briefing in Goodsby, Guerrero, and Ramos deferred pending decision in People v. Towne REV GTD (2/7/2007, S125677) 2007 Cal. LEXIS 1437, which includes the question whether a trial court violates a defendant’s Sixth Amendment right to a jury trial, as interpreted in Cunningham v. California (2007) 549 US ____ [166 LEd2d 856; 127 SCt 856], by imposing an upper term sentence based on the fact that the defendant had served a prior prison term, the defendant was on probation or parole when the crime was committed, or the defendant’s prior performance on probation or parole was unsatisfactory, if those aggravating factors were not found true by the jury.
California Courts of Appeal (November 1, 2007-November 30, 2007)
People v. Thomas (11/1/2007, B169300) 156 CA4th 975: Purse snatch satisfies the force or fear element of a robbery where the thief wrests the purse from the individual who has it on his or her person, using the amount of force necessary to get it away. Here the evidence established that the defendant grabbed the victim’s purse and tried to pull it away from her; that she pulled back, trying to prevent her purse from being taken; and that thief succeeded by cutting or breaking the strap that was over the victim’s shoulder and pulled on the strap with enough strength to defeat efforts to hold on to the purse was sufficient to support a conviction for robbery. (See People v. Morales (75) 49 CA3d 134, 139; see also People v. Abilez (2007) 41 C4th 472, 507 [for or fear element satisfied even if the victim is dead or unconscious; it is the application of force with the intent to steal is sufficient].) The Court stressed that a jury could find that no more force was used than necessary; but the jury was given a grand-theft lesser and still found the defendant guilty of robbery.
People v. Martinez (11/5/2007, B193624) 156 CA4th 851: Corpus delicti of the crime (see People v. Alvarez (2002) 27 C4th 1161, 1169 [independent proof of the corpus is sufficient if it permits an inference of criminal conduct, even if a noncriminal explanation is also plausible]), was established by evidence that the automobile was parked facing the wrong way with its engine running and its headlights on and that there were only two people in the vicinity, one of whom was in the passenger seat with her seatbelt buckled, and one of whom was the defendant who was intoxicated. The inference need not be the only inference or even the most compelling inference. (People v. Jones (98) 17 C4th 279, 301-302.) The court was not required to instruct sua sponte on the lesser included offense of attempted drunk driving where there was no evidence to support the theory (People v. Manriquez (2005) 37 C4th 547, 584 [there must be substantial evidence for the instruction]), that the intoxicated defendant was only on his way to drive the car as opposed to already having driven it when police arrived. Speculation is not sufficient to require an instruction on a lesser included offense. (People v. Wilson (92) 3 C4th 926, 941.) Where the defendant was convicted of recidivist felony DUI, and other related driving under the influence offenses, all arising from a single incident, all but the recidivist felony DUI conviction were required to be stayed under section 654, but the conviction for driving with a suspended license arising out of same incident was not required to be stayed. (See In re Hayes (69) 70 C2d 604, 611.) Finally, the imposition of the upper term did not violate Cunningham, and was within the reaches of Black II since appellant’s priors were of increasing seriousness (rule 4.421(b)(2)), he was on parole at the time of the offense, and he had numerous prior convictions for DUI.
People v. Gunter (11/6/2007, B196075) 156 CA4th 913: Although the perpetrator may peacefully acquire the victim’s property, the theft elevates to a robbery when he then prevents recovery of the property by force of fear. (People v. Estes (83) 147 CA3d 23; People v. Cooper (91) 53 C3 1158.) Appellant took property from a store and then ignored the store employees request to return to the store. When a mall security guard responded and told appellant that he was going to take him back to the store, appellant attempted to hand some of the property to the guard but then pushed the guard and ran. Appellant then dropped the property at the mall exit door and ran outside where he was apprehended in the parking lot. Appellant was convicted of robbery at his jury trial. The appellate court found that the robbery occurred when appellant pushed the guard and prevented him from recovering the property.
People v. Kortesmaki (11/6/2007, B196842) 156 CA4th 922: The MDO law applies to prisoners serving sentences for specific enumerated crimes as well as non-enumerated crimes where in the commission of the commitment crime, the prisoner expressly or impliedly threatened another with the use of force or violence likely to produce substantial physical harm. (PC 2962(e)(2)(Q).) Only the commitment offense may be considered and not those appellant may have committed in perpetrating the commitment offense. (People v. Green (2006) 142 CA4th 907, 913.) Here, appellant was convicted of possession of flammable material with intent to set fire to property (PC 453(a)). The appellate court found that the trial court erred in basing its decision to order appellant committed for MDO treatment on the arson of property appellant committed as appellant was not convicted of that offense. However, the court found that there nevertheless was sufficient evidence to sustain a finding that appellant’s commitment offense qualified as a crime involving an implied threat to use force likely to produce substantial harm. Appellant, carrying a bottle containing a flammable liquid, approached two men outside a liquor store and told them he was going to start a fire and then did so. The court found that this constituted an implied threat sufficient to meet the requirement of subdivision (e)(2)(Q).
In re Montgomery (11/7/2007, B192544) 156 CA4th 930:
Habeas petition was properly granted where Governor reversed parole decision based solely on the nature of the offense without considering that petitioner was only an accomplice. The Governor appealed from an order granting a habeas petition filed by Montgomery and ordering him released from state prison. The superior court determined that the Governor’s reversal of the BOPH’s decision finding Montgomery suitable was based solely on the nature of the offense and was not supported by “some evidence.” The appellate court concluded that the Governor’s decision could not withstand “especially close scrutiny” because the denial rested solely on the gravity of the offense and the Governor viewed the nature of the crime without considering that Montgomery was not the shooter, but an accomplice. To hold otherwise would render the fact of the nature of the offense a permanent denial of parole.
People v. Dillon (11/8/2007, A113310) 156 CA4th 1037: Involvement of a third party was required for conviction of making a building available for use for manufacture of controlled substance. Appellants used their own property for the cultivation of marijuana. They appealed their conviction for violation of HS 11366.5(a), making a building available for use for manufacture of a controlled substance, contending that there was no violation where the person who controls the property is the only one using it to manufacture a controlled substance. The appellate court agreed and reversed that count. In the absence of evidence that appellants permitted a third party or parties to use their property for cultivation of the marijuana discovered there, their conviction cannot stand. The statute is not ambiguous as to its requirement that the defendant must make the property available to another person to use. The statute was intended to punish those who enable others to manufacture controlled substances by providing the necessities; people who manufacture themselves are subject to punishment under other statutes.
People v. Forrester (11/8/2007, B198662) 156 CA4th 1021: An amended statute extending the maximum period within which a prior DUI conviction may be used did not violate ex post facto clause. Appellant had two prior DUI convictions, one in 1997 and one in 2001. In 1997, sections VC 23540 and VC 23546 provided that prior DUI convictions increase punishment for subsequent convictions occurring within seven years. In 2005, the Legislature extended the period to ten years. In 2006, appellant was charged with DUI offenses, and his prior convictions were used to enhance his sentence. On appeal, he argued that this was a violation of the ex post facto clause. The appellate court affirmed the judgment, finding no constitutional violation. In People v. Sweet, the court previously held that there was no constitutional violation when the statute was extended from five years to seven years. Appellant argued that People v. Sweet (89) 207 CA3d 78 was no longer good law because Stogner v. California (2003) 539 US 607 [156 LEd2d 544; 123 SCt 2446] compelled a different result. However, unlike Stogner, appellant was not charged with a crime for which the statute of limitations has run, and was not deprived of a defense. A sentence imposed on a habitual offender is not an additional punishment for the earlier crime, but a punishment for the later crime which is aggravated because of its repetitive nature.
People v. Presley (11/8/2007, C054589) 156 CA4th 1027: The underlying facts required by PC 290 need not be found by the jury per Cunningham, Apprendi and Blakely because public notification requirements of the sex offender registration laws are not punishment (see People v. Castellanos (99) 21 C4th 254) for purposes of the Sixth Amendment, so the underlying facts need not be found by a jury.
People v. Ibarra (11/13/2007, F050331) 2007 Cal. App. LEXIS 1844: Challenges to multiple CALCRIM instructions rejected. Appellant challenged several CALCRIM instructions given at his trial for stalking and assault, and argued that the cumulative impact of the errors warrants reversal even if none of the individual errors did. The appellate court found that CALCRIM 100 was not a prejudicial burden shifting instruction. CALCRIM 101 did not erroneously instruct the jury regarding outside influences on the jury and jury opinions toward the verdict. CALCRIM 102 and 104 did not incorrectly instruct on a juror’s notes and on the court reporter’s notes. CALCRIM 104 did not improperly shift the burden of proof by focusing on the jury’s inquiry on deciding which witnesses to believe and on what the facts are. CALCRIM 200 did not improperly coerce or invade the province of the jury. CALCRIM 220 did not improperly imply that bias against the defendant is permissible for reasons other than arrest, charge, and trial. CALCRIM 223 and 224 are not contradictory, confusing, and misleading. CALCRIM 226 does not misstate the law on honest forgetfulness and mistaken recollection. CALCRIM 252 does not misstate the law on the union of act and intent. CALCRIM 300 does not improperly suggest that the defense has a duty to produce “some” evidence. CALCRIM No. 302 does not undermine the presumption of innocence by implying that all prosecution witnesses are truthful. CALCRIM 355 does not misstate the law by implying that a defendant has a duty to present a defense. CALCRIM 370 does not improperly imply that jurors have a duty to reach a decision. Nor does it allow the jury to consider any free-floating motive which has nothing to do with the charged crimes or does it shift the burden of proof. CALCRIM 915 does not fail to allow the jury to consider the absence of injury or require it to find emotional distress. CALCRIM 1301 does not incorrectly instruct on the crime of stalking. CALCRIM instructions in general are not erroneous by collectively referring to individual jurors as “you.” Since no individual error occurred in the instructions, the appellate court also rejected appellant’s cumulative impact and ineffective assistance of counsel arguments.
People v. Young (11/13/2007, C054130) 2007 Cal. App. LEXIS 1849: Trial court has the discretion to reopen closing argument in an attempt to break a jury deadlock if it is not accompanied by any coercive comments, or an urging that the jurors to reach an agreement.
People v. Lopez (11/14/2007, F050831) 2007 Cal. App. LEXIS 1854: EC 1108 permits evidence of the prior offense to be admitted to show defendant’s propensity to commit such offenses, limited only by EC 352. The court is not limited to the statutory definition of the prior offense and may consider the underlying conduct. (See People v. Pierce (2002) 104 CA4th 893; People v. Walker (2006) 139 CA4th 782.) The court did not err in treating false imprisonment as a prior sexual offense where witnesses testified that the defendant pushed the 13-year-old victim onto her bed; attempted to pull off her shirt; struggled with her as she screamed, until her mother and brother forced their way into the room; and that he admitted intending to rape her.
People v. Campos and Hogan (11/14/07, B191256 & B192771) 2007 Cal. App. LEXIS 1856:
Challenges to multiple CALCRIM instructions rejected. (1) CALCRIM 220 directing the jurors to consider all the evidence received at trial does not preclude the jury from finding reasonable doubt based on the lack of evidence presented at the trial, as well as from the evidence presented. (2) CALCRIM 220 defining proof beyond a reasonable doubt as proof that leaves one with an “abiding conviction” does not require a clarifying instruction for “abiding conviction.” (3) CALCRIM 226 directing jurors to use their common sense and experience in judging credibility of witnesses does not impermissibly invite jurors to consider matters outside the record. (4) CALCRIM 600 allowing for a finding of attempted murder if defendant intended to kill a specific victim or anyone in the “kill zone” does not improperly expand the “kill zone” concept defined in People v. Bland (2002) 28 C4th 313, by using the word “anyone” instead of “everyone.” The evidence reflected the intent of appellants to kill the driver and the rear seat passenger and in carrying out this intent, Campos shot into the car. The intended victims were shot and died and the front seat passenger was shot and severely wounded. Appellants were charged with and convicted of the attempted murder of this front seat passenger. Appellants argued that CALCRIM 600 holding that “A person may intend to kill a specific victim and at the same time intend to kill anyone in a particular zone of harm or ‘kill zone’” was error for several reasons. The court noted that unlike murder, attempted murder requires the specific intent to kill and the doctrine of transferred intent does not apply to attempted murder. But under People v. Bland (2002) 28 C4th 313, a concurrent intent can be found where there is a “kill zone” created and the nature and scope of the attack against the primary victim is such that it can be concluded the perpetrator intended to ensure harm to the primary victim by harming everyone in his vicinity. Here, the court found that with CALCRIM 600, there was no possibility that the jury could have failed to find the requisite intent for the attempted murder charge. The jury was separately instructed as to the necessity of finding specific intent with the attempted murder charge and the “kill zone” theory in CALCRIM 600 was simply a reasonable inference that a primary intent to kill a specific target does not rule out concurrent intent to kill others. Although the “kill zone” instruction as given was ambiguous, it was not inconsistent with Bland. There was little difference between the word “anyone” and the word “everyone” as used in Bland. Finally, the use of the term “kill zone” is not argumentative or inflammatory.
People v. Bonnetta (11/15/07, A115732) 2007 Cal. App. LEXIS 1860: PC 1385 empowers the trial court to strike an enhancement (or its punishment) but requires that the reasons for the action must be entered into the minutes and that failure to do so invalidates the dismissal. The strict written minute order requirement has been justified as promoting judicial accountability and public confidence and facilitating appellate review. (People v. Orin (75) 13 C3d 937, 944, 947.) In this case, the reporter’s transcript clearly reflected the trial court’s reasons for dismissing the drug quantity enhancement and the prior drug convictions, but the reasons were not entered into the written order and, under the language of the statute and extensive case authority, reversal and remand were required. The appellate court complained of the statute’s emphasis on form over substance and recommended that the mandatory directive be reexamined. As pointed out by the appellate court, in a case such as this one where the reporter’s transcript was part of the appellate record, reversal and remand were pointless.
People v. King (11/20/07, G036836) 2007 Cal. App. LEXIS 1904: PC 654 prohibits multiple punishments for a single act or indivisible course of conduct with multiple punishments being appropriate only if the defendant entertained multiple criminal objectives that were independent and not incidental to each other. (People v. Beamon (73) 8 C3d 625.) Whether the defendant had one or more objectives is a question of fact and will not be overturned on appeal unless unsupported by substantial evidence. (People v. Sandoval (94) 30 CA4th 1288.) Appellant and his codefendant entered the victim’s motel room intending to rob him. One of them put the victim in a choke hold and he died. The jury found appellant guilty of murder, robbery, and burglary and the court sentenced him to a life term for the murder and concurrent terms for the burglary and robbery. Because there was no evidence suggesting that appellant had a separate objective to kill the victim or to engage in violence for the sake of violence, the concurrent terms were unauthorized. Judgment was reversed with directions to stay the sentence for the burglary and robbery.
In re Christopher B. (11/20/2007, A117235) 156 CA4th 1557: Juvenile court did not err when it sustained petition based solely on the testimony of an accomplice. During proceedings on a subsequent petition alleging burglary and vandalism, the sole evidence against the minor was the uncorroborated testimony of an accomplice. The juvenile court denied the defense motion to dismiss for insufficient evidence because of the opinion in In re Mitchell P. (1978) 22 C3d 946 [holding that PC 1111 does not apply to juvenile court proceedings]. The appellate court affirmed the jurisdictional order, but held that in the thirty years since Mitchell P., there has been a transformation of juvenile court law, purpose, and consequences, which undermines its rationale. The Mitchell P. case warrants reevaluation.
People v. Rodriguez (11/21/2007, B179600) 157 CA4th 14: The single act of a firearm use cannot be used as an enhancement and to augment a gang enhancement as well. Appellant fired upon three victims with a firearm during a single incident. He was convicted of three counts of assault with a firearm, with a personal use allegation, and a street gang enhancement. The trial court imposed a four-year firearm enhancement as to each count and a 10-year gang enhancement imposed under PC 186.22(b)(1)(c) which can be imposed where the underlying offense is a violent felony. This was improper per PC 654 because the act that rendered appellant eligible for the gang enhancement necessarily included the act used to enhance his sentence for assault.
People v. Flores (11/27/2007, G037695) 157 CA4th 216 [modified at 2007 Cal. App. LEXIS 2087]: CALCRIM 875 is neither a pinpoint instruction, nor is it argumentative. CALCRIM 362 regarding false or misleading statements showing a consciousness of guilt was not improperly given where appellant subsequently corrected his earlier statements and admitted that he fired the weapon. Because the evidence on the assault charge showed a continuous course of conduct, there was no need for a unanimity instruction.
People v. Scott (11/27/2007, E039093) 157 CA4th 189: Statute prohibiting incest (PC 285) is not unconstitutional because California has a legitimate interest in maintaining the integrity of the family unit, protecting persons who may not be in a position to freely consent to sexual relationships with family members, and in guarding against inbreeding.
People v. Lincoln (11/27/2007, B188042) 2007 Cal. App. LEXIS 1940: Trial judge violated Cunningham v. California (2007) 549 US ____ [166 LEd2d 856; 127 SCt 856] by imposing the upper term under PC 12022.5 based on facts not found by any jury.
People v. Beltran (11/27/2007, A116944) 2007 Cal. App. LEXIS 1947: CALJIC 12.61.1, mirrored in CALCRIM 2111, says that if the evidence establishes beyond a reasonable doubt that the defendant’s blood or breath was obtained within 3 hours after the defendant operated a vehicle, and a test shows .08 or more, the jury may infer that the defendant drove at .08 or above. Court holds that the instruction may be given even if there is evidence presented which rebuts the inference. Their point is that this is only a permissive presumption, not a mandatory one. But to give these instructions, there has to be proof beyond a reasonable doubt to establish the premises. Here, a PAS test showed .08, and a blood test twenty minutes later was .10. This shows that the defendant’s blood alcohol was rising. Thus, the premise for the presumption was disproved here, and it was error to give the instruction.
People v. Sun (11/28/2007, B194690) 2007 Cal. App. LEXIS 1952: Sentence based on conviction for second degree murder and attempted murder is reversed in part where enhancement imposed under PC 12022.7(e) should have been stricken and the court erred in failing to award an extra day of credit for 2004, a leap year.
In re McSherry (11/28/2007, B199945) 157 CA4th 324: Because PC 647.6(c) is a felony offense, with the prior conviction requirement being an element of the offense, an attempted commission of the offense is also a felony subject to the statute of limitations governing felonies. A jury found petitioner guilty of attempted child annoyance with a prior conviction, and after finding three prior “strike” convictions true, the court sentenced petitioner to prison for 25 years to life. Petitioner argued that PC 647.6(c)(2) applied only to the completed offense and, therefore, PC 664 (the attempt statute) did not apply so as to subject him to the felony statute of limitations. He concluded that since his offense was not a felony, under this theory, the prosecutor failed to timely commence prosecution within the required misdemeanor time period, a year from the offense. His claim was rejected by the appellate court which described PC 647.6 as a hybrid offense, punishable either as a misdemeanor or a felony, as determined by whether a prior conviction was proved. Because of the prior conviction in petitioner’s case, the offense was a felony subject to the felony statute of limitations and, thus, was timely prosecuted.
People v. Lacefield (11/28/2007, B191217) 2007 Cal. App. LEXIS 1951: Conviction for obstructing or resisting an executive officer in the performance of duty in violation of PC 69 is reversed where the trial court committed reversible error when it refused to instruct on PC 148(a)(1) as a lesser included offense of PC 69. (District Court of Appeal criticizes People v. Belmares (2003) 106 CA4th 19.)
City of Garden Grove v. Super. Ct. (11/28/2007, G036250) 2007 Cal. App. LEXIS 1953: Governmental subdivisions of the state are bound by the state’s laws and must return materials the state considers legally possessed.
People v. Tillotson (11/30/2007, G035041) 157 CA4th 517: (1) The instruction defining the crime of using a computer to defraud in violation of PC 502(c)(1), was erroneous where it omitted the requirement of proof that the defendant, without permission altered, damaged, deleted, destroyed or otherwise used the data obtained from such access. (2) In instructing on the charge of PC 502(c)(1), the court erred in failing to instruct on lesser included offense of using computer services without permission in violation of PC 502(c)(3). Whenever the design of a person to commit crime is clearly shown, “slight acts” in furtherance of the design will constitute an attempt. (People v. Superior Court (Decker) (2007) 41 C4th 1; People v. Anderson (1934) 1 C2d 687, 69-690.) PC 501(c)(3) is a lesser included offense under the accusatory pleading test, and the court has the sua sponte duty to instruct on the lesser included offense when the evidence raises the question of whether all of the elements of the charged offense were presented. (See People v. Cooper (1991) 53 C4th 771, 827.) (3) Error to impose the same HS 11370.2(c), 3-year enhancement, on two separate counts because HS 11370.2(e) is a status enhancement that may only be imposed once per information. (See People v. Williams (2004) 34 C4th 397, 402; People v. Tassell (1984) 36 C3d 77, 99.)
People v. Norman (11/30/2007, C050586) 157 CA4th 460: Jury must agree unanimously that the defendant is guilty of a specific crime. In a case where the evidence suggests more than one discrete crime, either the prosecution must elect among the crimes or the court must require the jury to agree on the same criminal act. This prevents a conviction based on an amalgamation of evidence of multiple offenses, none of which has been proven beyond a reasonable doubt. In this case, appellant was observed at mailboxes that were later determined to be rifled. Stolen mail from another location was found in the stolen car in which he was a passenger. Appellant was charged with one count of receiving stolen property and one count of petty theft with a prior. The prosecution argued that appellant committed two thefts–one from the mailbox and theft of the items in the car, but did not make an election as to which act was the charged theft. The same was true of the receiving charge. The court failed to give a unanimity instruction. As unanimity could not be assured on either conviction, the judgment was ordered reversed because of this “most common of instructional error in criminal cases.”
Of note is an Advice to Trial Judges section, where the C/A refers judges to a CJER training publication and urges trial judges to assume that they should give a unanimity instruction unless there’s a reason not to. (157 CA4th at 467.)
People v. Muhammad (11/30/2007, A110774) 157 CA4th 484: A defendant can only be convicted of one count of PC 646.9, as other subdivisions in the section are merely penalty provisions for stalking. Subdivisions (b), (c)(1), and (c)(2) are penalty provisions triggered when the offense of stalking as defined in subdivision (a) is committed by a person with a history of misconduct. Therefore, the Court of Appeal imposed sentence on PC 646.9(c)(2) and dismissed the other three counts of stalking. (See People v. Ryan (2006) 138 CA4th 360, 371.)
Joshua D. v. Superior Court (11/30/2007, G038394) 157 CA4th 549: The prosecution cannot call a minor as their witness in an extension proceeding. An order compelling a juvenile to testify in proceedings initiated by the district attorney to extend his commitment in a juvenile facility because he poses a danger to the public, based on an alleged mental illness, did not violate the juvenile’s 5th Amendment right not to incriminate himself because commitment proceedings are essentially civil in nature, (see Allen v. Illinois (1986) 478 US 364, 374-375), but did violate WI 1801.5, which expressly extends to juveniles facing commitment “all rights guaranteed under the federal and state constitutions in criminal proceedings.” (See In re Luis C. (2004) 116 CA4th 1397.)
Ninth Circuit Court of Appeal (November 1, 2007-November 30, 2007)
U.S. v. Brooks (11/29/2007, 9th Circuit, No. 05-30261) 508 F3d 1205: Improper “vouching” by the government that affects a defendant’s substantial rights will result in reversal. Improper vouching occurs when the prosecutor places the prestige of the government behind a witness by expressing his personal belief that the witness is truthful, or when the prosecutor indicates that information not presented to the jury supports the witness’ testimony. For example, vouching occurs where the witness on direct testimony states that his plea bargain requires him to testify truthfully. Such a statement suggests that the witness who might otherwise be unreliable is compelled by government threats or promises to tell the truth. To determine if vouching is reversible, the reviewing court must balance the seriousness of the vouching against the effectiveness of any curative instruction and the closeness of the case. Here, although there were instances of vouching, because of the curative instructions and the strength of the government’s case, the reviewing court did not find reversible error.