CALIFORNIA CASE LAW UPDATE – Selected California Cases
California Supreme Court (November 1-30, 2009)
People v. Stevens (11/5/2009, S158852) 47 C4th 625: Trial – Stationing Courtroom Deputy Next To Defendant: Stationing courtroom deputy next to testifying defendant not inherently prejudicial practice that must be justified by showing of manifest need. It is not akin to a “human shackle.” Trial court has broad power to maintain courtroom security and orderly proceedings. (People v. Hayes (1999) 21 C4th 1211, 1269.) However, visible physical restraints like handcuffs or leg irons may erode presumption of innocence, as well as prison clothing. (Deck v. Missouri (2005) 544 US 622, 630 [161 LEd2d 953; 125 SCt 2007.) They must be justified by particular need.
People v. Concha et al. (11/12/2009, S163811) 47 C4th 653: Under the provocative act murder doctrine, when defendant personally acts willfully, deliberately, and with premeditation in the attempted murder of the victim who then kills defendant’s accomplice, and the attempted murder is a proximate cause of the death, defendant is liable for first degree murder of his accomplice.
Grants Of Review:
Birotte v. Superior Court REV GTD (11/10/2009, S176965) 177 CA4th 559: When is the identity of a suspect “conclusively established by DNA testing” for purposes of the one-year statute of limitations under PC 803(g)(1)?
Kling v. Superior Court REV GTD (11/10/2009, S176171) 177 CA4th 223: (1) What role does the prosecution have in an in camera hearing to determine whether to disclose third party documents to the defense? (2) Is the prosecution entitled to information at that time about the documents subpoenaed and from whom they were subpoenaed, or is such disclosure only required (see PC 1054.3) once the defense decides to use the documents at trial?
California Courts of Appeal (November 1-30, 2009)
People v. Bell (11/19/2009, G041051) 179 CA4th 428: “. . . [W]hether the movement was over a distance merely incidental to an associated crime is simply one of several factors to be considered by the jury (when permitted by the evidence) under the “totality of circumstances” test enunciated in Martinez. The factor is not a separate threshold determinant of guilt or innocence, separated from other considerations bearing on the substantiality of the movement as the current wording of the incidental movement paragraph of CALCRIM No. 1215 now suggests.”
People v. Katzenberger (11/2/2009, C058883) 178 CA4th 1260: Prosecutorial Misconduct – Use Of Misleading PowerPoint Presentation: The prosecutor’s use of a PowerPoint presentation consisting of eight puzzle pieces forming a picture of the Statue of Liberty in closing argument to illustrate the reasonable doubt standard was improper since the use of an easily recognizable iconic image along with the suggestion of a quantitative measure of reasonable doubt combined to convey an impression of a lesser standard of proof than the constitutionally required standard. However, the use was not prejudicial since the jury was alerted to parties’ dispute over that presentation, and the trial court impliedly told them to rely on the jury instructions, which they presumably did. (People v. Mendoza (2007) 42 C4th 686, 703 [standard is pursuant to Chapman and is not per structural error].) Using visual aids to illustrate the “beyond a reasonable doubt” standard is dangerous and unwise.
People v. Gonzalez (11/4/2009, B208413) 178 CA4th 1325: Where the great bodily injury enhancement (PC 12022.7(a)) also turns the underlying felony into a violent felony for purposes of a gang enhancement, sentence can be imposed only for the greater of the two.
People v. Santiago (11/9/2009, F056686) 178 CA4th 1471: CALCRIM 3550, at least when given before deliberations begin, does not improperly direct minority jurors to give way to majority jurors or improperly tell them that all criminal cases must be decided at some point. The given instruction contains none of the flaws determined to be objectionable in instructions like those in People v. Gainer (1977) 19 C3d 835, which addressed the Allen v. United States (1896) 164 US 492 [41 LEd. 528; 17 SCt 154]), or the dynamite charge. (See also People v. Rodriguez (1986) 42 C3d 730, 768-769.)
People v. Cohens (11/9/2009, E045468) 178 CA4th 1442: Trial court erred by failing to instruct jury that the prosecution was required to prove that the defendant actually knew he was required to register, within the meaning of PC 290, the “particular address” involved. However, the court held that the error was harmless beyond a reasonable doubt where the jury could have reasonably inferred the defendant’s actual knowledge of his duty to register the particular address from his admitted awareness of his general duty to register a second residence, from the proven fact that he resided at the particular address, and from the lack of evidence that he did not know he was residing at the particular address. (See People v. Sakarias (2000) 22 C4th 596, 625 [error is harmless if the jury could not rationally have found the omitted element unproven].) No rational juror could have found that the prosecution failed to meet the burden that a correct instruction would have imposed upon it.
People v. Hernandez (11/9/2009, H031992) 178 CA4th 1510: Order barring defense counsel from discussing an accomplice’s sealed declaration with the defendant or other members of defense team, violated the defendant’s Sixth Amendment right to counsel.
In re Jennifer S. (11/10/2009, A122900) 179 CA4th 64: Statutory Construction: A local ordinance making it a misdemeanor for a person under age 21 to have a blood alcohol level of .01 percent or more while in a public place was not preempted by state law, as the state has not completely occupied the field of regulating consumption of alcohol. (See O’Connell v. City of Stockton (2007) 41 C4th 1061, 1067-1068 [general principles of preemption restated].)
Langhorne v. Superior Court et al. (11/16/2009, H033845) 179 CA4th 225: Under WI 6601(a)(2), a petition to extend a sexually violent predator (SVP) commitment to an indefinite term will not be dismissed if it is shown that the failure to timely pursue the action was a good faith mistake of law.
People v. Archer (11/17/2009, D052978) 179 CA4th 298: Medical Marijuana: Instructional Error Re: Permissible Quantity: A defense to cultivation of marijuana that appellant growing it is a “primary caregiver” is not limited by the amount of marijuana allowed but appellant must provide evidence of the “primary caregiver” status. Appellant was convicted of cultivation of marijuana and possession of marijuana. At trial, the court instructed that a qualified caregiver may possess no more than eight ounces of dried marijuana per patient and may maintain no more than six mature or twelve immature plants per patient. The court agreed with appellant that this instruction, as derived from HS 11362.77(a), was error because section 11362.77 setting the limits of marijuana, unconstitutionally amends the Compassionate Use Act (CUA). The California Constitution prohibits the Legislature from amending an initiative measure, as it did here, unless the initiative measure, itself, allows it. The CUA does not authorize legislative amendment without voter approval. (The issue is presently pending in the California Supreme Court in People v. Kelly REV GTD (8/13/2008, S164830) 163 CA4th 124, People v. Wood REV GTD (8/13/2008, S164211) 2008 Cal. App. Unpub. LEXIS 3633, and People v. Phomphakdy REV GTD (10/28/2008, S166565) 165 CA4th 857.) Here, however, the error was harmless as to the cultivation conviction as appellant did not establish that he qualified as a “primary caregiver” within the meaning of the CUA. It was prejudicial as to the possession charge, however, as the record supported appellant’s claim that the amount of marijuana, without the limitation, was for his own personal medical use.
People v. Bell (11/19/2009, G041051) 179 CA4th 428: Kidnapping – Failure To Instruct On Incidental Movement: Judge failed to give complete instructions on simple kidnapping (judge refused to instruct on incidental movement). Court also finds fault with CALCRIM 1215, because it fails to “capture accurately” the holding of People v. Martinez (1999) 20 C4th 225. On retrial, court must add “Substantial distance means more than a slight or trivial distance. In deciding whether the distance was substantial, you must consider all the circumstances relating to the movement. Thus, in addition to considering the actual distance moved, you may also consider other factors such as whether the [distance the other person was moved was beyond that merely incidental to the commission of the crime of evading a police officer,] whether the movement increased the risk of [physical or psychological] harm, increased the danger of a foreseeable escape attempt, [or] gave the [defendant] a greater opportunity to commit additional crimes.“
NOTE: The Court also complains that CALCRIM 1215, which they say makes incidental movement an independent nullification of the “substantial distance” element, when actually movement incidental to an associated crime is just one factor in the totality of circumstances which must be considered to determine whether the movement was substantial. The jury might acquit when they should convict.
People v. Ochoa (11/20/2009, E045756) 179 CA4th 650: Gangs – Insufficient Evidence: True findings on gang enhancements not supported by substantial evidence. During robbery, defendant, who was alone, made no gang signs or signals, nor did he say anything gang-related. Gang “experts” testified that defendant identified himself as gang member, but that was not enough. “The gang enhancement cannot be sustained solely on defendant’s status as a member of the gang and his subsequent commission of crimes.”
People v. Zielesch (11/23/2009, C059872) 179 CA4th 731: Homicide – Foreseeable Murder Of CHP Officer: Defendant who asked accomplice to kill defendant’s wife’s boyfriend, and who supplied him with a gun and money to buy drugs, was responsible for killing CHP officer who pulled over co-defendant and said, “How are you doing today?” “When defendant bargained for the assassin’s services and armed him with a gun and money to buy methamphetamine, defendant knew that the assassin had an unstable personality, with the ‘mentality’ to kill someone other than the intended victim of the assassination. Defendant also knew that the assassin had just been released from jail, was on searchable probation, and would not want to be returned to custody if a law enforcement officer found the assassin in possession of methamphetamine and defendant’s gun. From these facts, jurors reasonably could conclude the cold-blooded murder of Officer Stevens was a natural and probable consequence of the conspiracy to kill Shamberger because a reasonable person, knowing what defendant knew, would recognize that if the unstable, methamphetamine using, and armed assassin were detained by a law enforcement officer before the assassination was completed, it is likely that he would kill the officer to avoid arrest and complete his mission.”
People v. Zielesch (11/23/2009, C059872) 179 CA4th 731: Trial – Buttons Worn By Spectators: “It is an insult to the intelligence and integrity of jurors to suggest that, despite the judge’s admonition not to be influenced by buttons worn by some of the courtroom spectators, the jurors would have been so influenced by the buttons that they would be unable to base their verdict solely on evidence presented at trial. Nothing about the buttons was coercive or intimidating, and we have no doubt that the verdicts would have been the same if the trial court had not allowed the spectators to wear the buttons during the first six days of this eight-week trial.”
People v. Scott(11/24/2009, C059703) 2009 Cal. App. LEXIS 1892: Although a trial court is not required to strike one of two prior “strike” convictions arising out of the same facts, it must consider the closeness of the two strikes as a relevant circumstance in determining whether to grant a request pursuant to People v. Superior Court (Romero) (1996) 13 C4th 497 to determine whether to exercise discretion to strike the second prior.
People v. Smith (11/25/2009, B212368) 2009 Cal. App. LEXIS 1902: Writings may be authenticated by circumstantial evidence, content, and location, and are not necessarily hearsay if introduced as probative of intent.
People v. Dotson (11/30/2009, C060310) 2009 Cal. App. LEXIS 1904: Statute of Limitations – Unclear Record Requires Remand: Because the information did not, on its face, establish prosecution undertaken within statute of limitations period, necessary to remand for hearing. Issue may be raised at any time. (People v. Williams (1999) 21 C4th 335, 338.)
U.S. Supreme Court (November 1-30, 2009)
Bobby v. Van Hook (11/9/2009, No. 09-144) ____ US ____ [175 LEd2d 255; 130 SCt 13]: IAC At Penalty Phase – Application Of 2003 ABA Standards To 1985 Case: Applying ABA guidelines published in 2003 to determine whether attorneys were ineffective in 1985 trial was error. Restatements of professional standards, we have recognized, can be useful as “guides” to what reasonableness entails, but only to the extent they describe the professional norms prevailing when the representation took place. (Strickland v. Washington (1984) 466 US 668, 688 [80 LEd2d 674; 104 SCt 2052].) In addition, Sixth Circuit improperly applied guidelines as commands.
Porter v. McCollum (11/30/2009, No. 08-10537) ____ US ____ [2009 U.S. LEXIS 8377; 130 SCt 447]: IAC At Penalty Phase: Failure To Present PTSD Claims: In a per curiam opinion unusual for its regard of defendants’ rights, Supreme Court holds that petitioner was denied a fair penalty phase when his appointed counsel failed to discover or present during penalty phase in 1988 mitigating evidence of post-traumatic stress disorder following combat in Korean War, as well as evidence abuse suffered as child.
Porter v. McCollum (11/30/2009, No. 08-10537) ____ US ____ [175 LEd2d 398; 130 SCt 447]: Defense counsel’s decision not to investigate mitigating circumstances in this death penalty case because the defendant was uncooperative, did not reflect reasonable professional judgment.
