CALIFORNIA CASE LAW UPDATE – Selected California Cases
California Supreme Court (November 1-30, 2010)
Courtroom Availability. People v. Hajjaj (11/4/2010, S175307) 50 C4th 1184: “A courtroom that cannot be reached by the parties prior to the close of business is for practical and legal purposes unavailable for bringing the accused to trial.”
Lying In Wait. People v. Russell (11/15/2010, S075875) 50 C4th 1228: For lying-in-wait murder, the period of time must be “substantial,” but there is no fixed time limit for the period of lying-in-wait.
Death penalty: Issues. People v. Foster (11/18/2010, S058025) 2010 Cal. LEXIS 11680: Issues: use of physical restraints (stun belt and leg restraints) forfeited by failure to object, and no evidence they were visible to jury. Voir dire of prospective jurors not inadequate, and forfeited anyway by failure to object. Admission of evidence of prior crimes proper to prove identity, common plan and intent. Cross-examination of defendant regarding prior crimes proper because by denying guilt, defendant placed at issue his identity. Third party contacts with jurors harmless, and unrelated to case. Trespass not lesser included offense of burglary, only lesser related offense. Jury properly instructed on burden of proof with respect to identity. Jury instructions concerning prior crimes were sufficient to properly inform jury that it had to find the priors true by a preponderance, but offenses had to be found true beyond reasonable doubt, and if jury relied on priors to prove essential fact, it had to find prior true beyond a reasonable doubt.
Grants of Review
In re Coley REV GTD (11/10/2010, S185303) 187 CA4th 138: Does defendant’s sentence of 25 years to life under the three strikes law for failing to update his sex offender registration within five days of his birthday constitute cruel and unusual punishment?
People v. Miller REV GTD (11/10/2010, S186758) 187 CA4th 902: Briefing deferred pending decision in People v. Dungo REV GTD (12/2/2009, S176886) 176 CA4th 1388, People v. Gutierrez REV GTD (12/2/2009, S176620) 177 CA4th 654, People v. Lopez REV GTD (12/2/2009, S177046) 177 CA4th 202, and People v. Rutterschmidt REV GTD (12/2/2009, S176213) 176 CA4th 1047, which present issues concerning the right of confrontation under the Sixth Amendment when the results of forensic tests performed by a criminalist who does not testify at trial are admitted into evidence and how the decision of the United States Supreme Court in Melendez-Diaz v. Massachusetts (2009) 557 US ___ [174 LEd2d 314; 129 SCt 2527], affects this court’s decision in People v. Geier (2007) 41 C4th 555.
People v. Cravens REV GTD (11/23/2010, S186661) 2010 Cal. App. Unpub. LEXIS 6572: (1) Was the evidence sufficient to support defendant’s conviction for second degree murder on a theory of implied malice when defendant, during a lull in a fight between the victim and one of defendant’s friends, knocked the victim unconscious with a single punch, causing him to fall to the ground, fracture his skull, and die? (2) Did the CA properly reduce defendant’s murder conviction to voluntary manslaughter on the theory that any unintentional killing without malice that occurs during the commission of a felony assault is voluntary manslaughter?
Baca v. Superior Court REV GTD (11/23/2010, S186253) 187 CA4th 1534: Briefing deferred pending decision in Catlin v. Superior Court REV GTD (11/19/2008, S167148) 166 CA4th 133, which presents the following issue: Must a motion under PC 1054.9, which authorizes prisoners under sentence of death or life without the possibility of parole to bring post-conviction discovery motions, be brought within a reasonable time period?
People v. Dowl REV GTD (7/21/2010, S182621) 183 CA4th 702: The court ordered the issues to be briefed and argued limited to the following issue: Whether the People, when confronted with a medical marijuana defense, must call an expert with experience distinguishing lawful, medical possession from unlawful possession to establish that defendant possessed marijuana for sale.
Gomez v. Superior Court REV GTD (2/10/2010, S179176) 179 CA4th 614: The court invited the California Court Commissioners Association and respondent Superior Court of Lassen County to file letter briefs in this case. The court directed the parties to file supplemental letter briefs addressing the following questions: (1) As a matter of statutory interpretation, does a decision whether to summarily deny a petition for a writ of habeas corpus or to issue an order to show cause constitute an “ex parte” matter within the meaning of CCP 259(a)? If not, to what matters does the statute apply? (2) Assuming that section 259, subdivision (a), grants commissioners the authority to summarily deny a habeas corpus petition or to issue an order to show cause, did commissioners actually exercise such authority prior to the adoption of article VII, section 22, of the California Constitution in 1966? (3) If commissioners did have the authority to summarily deny habeas corpus petitions prior to 1966, can it still be argued in light of Rooney v. Vermont Investment Corp. (1973) 10 C3d 351 that such authority does not constitute a subordinate judicial duty within the meaning of article VI, section 22, of the California Constitution? (4) Have the legal consequences of a summary denial of a habeas corpus petition, or the legal determinations involved, changed since the adoption of article VI, section 22, in such a manner as to support a conclusion that a summary denial of a habeas corpus petition no longer constitutes a subordinate judicial duty?
The following case was transferred for reconsideration in light of People v. Lynch (2010) 50 C4th 693:
People v. Faultry REV GTD (4/14/2010, S179910) 2009 Cal. App. Unpub. LEXIS 10212
The following case was dismissed as moot (see People v. Engram (2010) 50 C4th 1131, 1144, fn. 6):
People v. Wagner REV GTD (9/30/2009,S175794) 175 CA4th 1377
Review in the following cases was dismissed in light of People v. Engram (2010) 50 C4th 1131:
People v. Bye REV GTD (1/13/2010, S178333) 2009 Cal. App. Unpub. LEXIS 8471
People v. Gonzalez REV GTD (1/13/2010, S178334) 2009 Cal. App. Unpub. LEXIS 8691
People v. Stoltie REV GTD (1/13/2010, S178336) 2009 Cal. App. Unpub. LEXIS 8610
People v. Minjarez REV GTD (2/10/2010, S179307) 2009 Cal. App. Unpub. LEXIS 9671
People v. Boyd REV GTD (4/14/2010, S180696) 2010 Cal. App. Unpub. LEXIS 703
People v. Herring REV GTD (4/28/2010, S181244) 2010 Cal. App. Unpub. LEXIS 1189
Herron v. Appellate Division of the Superior Court REV GTD (4/28/2010, S180622) Unpublished
People v. Seastrong REV GTD (9/15/2010, S185079) Unpublished
California Courts of Appeal (November 1-30, 2010)
Denial Of Peremptory Challenge: Standard Of Prejudice. People v. Baldwin (11/2/2010, B217438) 189 CA4th 991: An erroneous ruling that forces a defendant to use a peremptory challenge, and thus leaves him unable to exclude a juror who actually sits on his case, provides grounds for reversal only if the defendant can actually show that his right to an impartial jury was affected.
Reconsideration Of Habeas Ruling. Jackson v. Superior Court (11/3/2010, H035137) 189 CA4th 1051: A trial court can reconsider and vacate an order granting habeas relief during the 60-day window to appeal from that decision as long as a notice of appeal has not been filed thereby divesting the trial court of jurisdiction.
EC 1108: Uncharged Offenses From Foreign County. People v. Miramontes (11/4/2010, D054976) 189 CA4th 1085: EC 1108 allows the use of uncharged acts occurring in a foreign country as long as those incidents involve conduct which is comparable to a California sex offense.
Crawford Confrontation: 911 Calls. People v. Johnson (11/5/2010, A124362) 189 CA4th 1216: Statements made in a 911 call immediately after criminal activity, but during an ongoing emergency, admissible per EC 1240 are not testimonial in nature for purposes of confrontation clause analysis. No violation of Sixth Amendment confrontation clause as interpreted by Crawford v. Washington (2004) 541 US 36 and Davis v. Washington (2006) 547 US 813. Follows People v. Cage (2007) 40 C4th 965; People v. Romero (2008) 44 C4th 386.
Rape Of Intoxicated Woman. People v. Smith (11/8/2010, C061805) 189 CA4th 1263: CALCRIM 1002 correctly incorporates the law of rape of an intoxicated woman within the meaning of PC 261(a)(3) per People v. Giardino (2000) 82 CA4th 454, 465-466.
Hit And Run: Knowledge Element. People v. Nordberg (11/8/2010, B218891) 189 CA4th 1228: Jury should have been instructed that defendant had to have knowledge that accident resulted in injury or was of such nature that one would reasonably anticipate it resulted in injury when defendant was charged with violating VC 20001(c). Error harmless because defendant’s own testimony established that she knew the accident was of such a nature that it was probable another person had been injured.
Resisting Arrest (PC 69). People v. Rasmussen (11/9/2010, A125942) 2010 Cal. App. LEXIS 1927: There are two ways a defendant can violate PC 69 (resisting or deterring an executive officer). The first way is to attempt by threats or violence to deter or prevent an officer from performing a duty imposed by law. The second is to actually resist by force or violence an officer in the performance of his or her duty. The first is a specific intent offense. The second is only a general intent crime. Also, the difference between PC 69 and PC 148 is that PC 69 requires resistence by force, while 148 doesn’t.
Drunk Driving: Admission Of Refusal To Take PAS Test. People v. Jackson (11/12/10, A128782) 2010 Cal. App. LEXIS 1933: Trial court erred in admitting evidence that defendant refused to take a preliminary alcohol screening (PAS) test. VC 23612 makes the test voluntary and the police are required to so inform a detained driver.
Standard Of Prejudice: Failure To Give Voluntary Manslaughter Instruction Based On Heat Of Passion. People v. Ramirez (11/12/10, B218413) 2010 Cal. App. LEXIS 1936: The AG argued that since the jury found the defendant guilty of first degree murder and thus premeditation, any error for failing to instruct on heat of passion was harmless. The appellate court rejected this argument, relying on the 1976 Berry case (18 C3d 509).
Elder Forgery. People v. Eastburn (11/15/2010, B216886) 2010 Cal. App. LEXIS 1939: For the purpose of forgery from an elder adult (PC 368(d)), there is no legal distinction between an individual and the fictitious names under which he or she is doing business.
Multiplicity: “Street Terrorism.” People v. Duarte (11/16/2010, G041195) 2010 Cal. App. LEXIS 1949: Where the underlying felony is used to satisfy the felonious conduct element of a street terrorism charge (PC 186.22(a), PC 654 bars separate punishment.
Drunk Driving: Great Bodily Injury Enhancement – Intent Required. People v. Poroj (11/18/2010, E048123) 2010 Cal. App. LEXIS 1965: The great bodily injury enhancement (PC 12022.7(a)) does not require a showing of either general or specific intent to inflict great bodily injury.
MDO: Vandalism As Qualifying Offense. People v. Labelle (11/18/2010, B223468) 2010 Cal. App. LEXIS 1962: Felony vandalism can be a qualifying commitment offense for purposes of the Mentally Disordered Offender (MDO) statute (PC 2960 et seq.).
Remedy For Deliberate Violation Of The Attorney-Client Privilege. People v. Shrier (11/23/2010, B218424) 2010 Cal. App. LEXIS 1997: The appropriate remedy for police interference with a defendant’s right to counsel due to eavesdropping on attorney-client communications is exclusion of evidence, not dismissal of the case.
Gang Special Circumstance: Knowledge Element. People v. Carr (11/23/2010, B219279) 2010 Cal. App. LEXIS 2001: The criminal street gang special circumstance for murder (PC 190.2(a)(22)), requires knowledge that the gang’s members engage in criminal activities but not subjective knowledge of particular crimes. CALCRIM 736 includes the correct knowledge element.
Prosecutorial Misconduct: Cured By Court. People v. Carr (11/23/2010, B219279) 2010 Cal. App. LEXIS 2001: Prosecutor probably committed error under Griffin v. California (1965) 380 US 609 by commenting on defendant’s failure to call an alibi witness, but court cured error by admonishing jury to ignore her statement.
Newly Discovered Evidence Required New Trial. People v. Soojian (11/24/2010, F058589) 2010 Cal. App. LEXIS 2002: Admitting that “it is unusual for an appellate court to conclude that newly discovered evidence entitles a defendant to a new trial as a matter of law,” reviewing court holds that newly discovered evidence warranted a new trial because the defendant “established that it is probable that at least one juror would have voted to find him not guilty had the new evidence been presented.”
9th Circuit Court Of Appeals
(November 1-30, 2010)
Informants/Brady: Conviction Overturned Due To Use Of Perjured Material Testimony And Failure To Disclose Deal With Informant. Maxwell v. Roe (11/30/2010, 9th Cir. No. 06-56093) 2010 U.S. App. LEXIS 24432: A conviction obtained by knowingly perjured testimony is fundamentally unfair and a constitutional error resulting from the use of such false evidence by the government requires a new trial if the testimony reasonably could have affected the judgment of the jury. Further, the prosecution committed error under Brady v. Maryland (1963) 373 US 83, by failing to disclose the deal made with the informant [Storch] and Storch’s prior informant history.
Lesser Included Offenses: Resentencing To Lesser Offenses After Successful Habeas Petition. Douglas v. Jacquez (11/24/2010, 9th Cir. No. 08-17478) 2010 U.S. App. LEXIS 24175: A federal habeas court cannot order a state court to resentence a defendant to a lesser-included offense, but there is no double jeopardy violation if the state court, on its own volition, resentences a defendant on a lesser-included offense.
Faretta. U.S. v. Hantzis (11/4/2010, 9th Cir. No. 05-50507) 2010 U.S. App. LEXIS 23030: Once a defendant knowingly and intelligently waives counsel, a court need not repeat Faretta advisements at every hearing or at every stage.