CALIFORNIA CASE LAW UPDATE – Selected California Cases
California Supreme Court (November 1-30, 2011)
Dismissed Lying In Wait Special Circumstance Reinstated By Supreme Court. People v. Mendoza (11/10/2011, S065467) 52 CA4th 1056: At sentencing, the trial court imposed death but struck the lying in wait special circumstance under PC 1385. PC 1385.1 bars a trial court from dismissing special circumstances under 1385. The DA never appealed. The California Supreme Court held that the DA can raise this issue for the first time in the Supreme Court. PC 1252 provides that on a defendant’s appeal, the People can obtain review of any rulings adverse to the People.
Batson/Wheeler Re: Gender Bias. People v. Dement (11/28/2011, S042660) 2011 Cal. LEXIS 12151: No inference of discriminatory purpose where DA used 10 of 13 peremptory challenges against women.
Grants of Review
People v. Bryant REV GTD (11/16/2011, S196365) 198 CA4th 134: May voluntary manslaughter be premised on a killing without malice that occurs during commission of an inherently dangerous assaultive felony?
People v. Armstrong REV GTD (11/30/2011, S196985) 2011 Cal. App. Unpub. LEXIS 6500: Briefing deferred pending decision in People v. Favor REV GTD (3/16/2011, S189317) 190 CA4th 770, which presents the following issue: In order for an aider and abettor to be convicted of attempted willful, deliberate and premeditated murder by application of the natural and probable consequences doctrine, must a premeditated attempt to murder have been a reasonably foreseeable consequence of the target offense or offenses, or is it sufficient that an attempted murder would be reasonably foreseeable?
California Courts of Appeal (November 1-30, 2011)
Gang Offenses: Separate Punishment. People v. Nunes, et al. (11/1/2011, C060871) 200 CA4th 587: Separate punishments may be imposed for active participation in a criminal street gang and the underlying felony that is used to prove the “felonious conduct” element of PC 186.22(a).
MDO. People v. Crivello (11/1/2011, C066994) 200 CA4th 612: Where the trial court found reasonable doubt that defendant had a substantial mental disorder that was a causative factor in the commission of his crime, the prosecution is barred from seeking to recommit the defendant as a mentally disordered offender (MDO).
Equal Protection Challenge To PC 288a(e). People v. Ruffin (11/2/2011, F060606) 200 CA4th 669: Mandatory sex registration for conviction for PC 288a(e) violates equal protection.
Voluntary Intoxication Cannot Negate Implied Malice. People v. Carlson (10/12/2011, pub’d 11/3/2011, G043833) 200 CA4th 695: The appellate court found no error in the trial court’s denial of appellant’s request for instruction of CALCRIM 626, voluntary intoxication as a defense to implied malice to reduce the crime to involuntary manslaughter. In People v. Watson (1981) 30 CA3d 290, the Supreme Court held that a person, with knowledge of the hazards of driving while intoxicated, who drives and proximately causes the death of another, can be convicted of second-degree murder under an implied malice theory. PC 22, amended in 1995, specifically precludes evidence of voluntary intoxication to negate implied malice.
Lesser Related Offense: Judge Has Ultimate Discretion. People v. Hall (11/7/2011, B224359) 200 CA4th 778: Unless required by statute or case law to give a jury instruction, the court has the ultimate decision as to an instruction on an uncharged lesser related offense.
EC 1108 Evidence: Different Standard Of Admissibility From EC 352 And EC 1101(b). People v. Hernandez (11/10/2011, B225494) 200 CA4th 953.
Simple Battery Not A Lesser Included Of Rape Of An Unconscious Person. People v. Hernandez (11/10/2011, B226324) 200 CA4th 1000.
Multiple Child Porn Pictures On Multiple Computers. People v. Sample (11/17/2011, D058317) 2011 Cal. App. LEXIS 1439: The simultaneous possession of multiple items of one type of contraband constitutes a single violation, and the simultaneous possession of two types of contraband in the same location constitutes a single violation. (People v. Hertzig (2007) 156 CA4th 398; see also People v. Manfredi (2008)169 CA4th 622.)
Pleading Guilty Bars An Appeal Based On Lack Of Facts To Support Charges. People v. Voit (11/18/2011, H035882) 2011 Cal. App. LEXIS 1443.
Juror Misconduct: Critical Examination Of Evidence vs. Acquisition Of New Evidence. People v. Engstrom (11/28/2011, C065982) 2011 Cal. App. LEXIS 1477: Jury conduct that amounts to critical examination of the evidence admitted, as opposed to conduct resulting in the acquisition of new evidence, is not misconduct that supports a motion for new trial. Improper experiments by the jury are those that allow the jury to discover new evidence by considering areas not examined during trial. Conduct that is simply a more critical examination of the evidence admitted at trial is not misconduct. (See also People v. Collins (2010) 49 C4th 175.)
See also FORECITE F 101 Note 7; F 101 Note 8; F 332 Inst 8.
Grand Juror Bias. Packer v. Superior Court of Ventura County (11/28/2011, B229369) 2011 Cal. App. LEXIS 1478: Under the present state of the law, the bias of a grand juror is not a ground for setting aside an indictment.
Force Required For Felony Child Abuse (PC 273a(a)). People v. Clark (11/29/2011, C064590) 2011 Cal. App. LEXIS 1488: Felony child abuse does not require force likely to produce great bodily injury.
Felony Child Abuse: Parental Discipline And Self Defense As Potential Defenses. People v. Clark (11/29/2011, C064590) 2011 Cal. App. LEXIS 1488: A parent has the right to administer reasonable discipline, and both self-defense and parental discipline may provide legal justification for the use of force against the child. However, these defenses are not congruent and the amount of force used may be different.
Propriety Of PC 1118.1 Dismissal. People v. Velazquez (11/29/2011, B223730) 2011 Cal. App. LEXIS 1489: Under PC 1118.1, a defense motion for acquittal must be granted if the prosecution has failed to present a prima facie case during its case-in-chief.
Sex Offender Registration Plea Bargain: Specific Performance. People v. Jerry Z. (11/29/2011, A127878) 2011 Cal. App. LEXIS 1490: A defendant may be entitled to specific performance of his plea bargain guaranteeing him relief from sex registration, despite subsequent change, with retroactive application in the pertinent statutes, making registration mandatory.
Admissibility Of Demonstrative Evidence. People v. Rivera (11/30/2011, A130421) 201 CA4th 353, 364: In Rivera requiring the defendant to demonstrate how he strangled the victim was improper. The probative value was minimal and the context made a realistic demonstration impossible. The court of appeal concluded “the use of a small, disrobed, wigless, lifeless female mannequin rendered the exhibition almost derisory, with the spectacle of defendant throttling a nonsentient, plastic entity that bore little physical likeness to the large male victim, all as orchestrated by the prosecutor. The acts of the victim were not reproduced. The emotion associated with the strangling, which was an integral part of the defense, was entirely missing from the demonstration. But for the seriousness of the charge, the courtroom events were suggestive of a slapstick parody.” (Id. at 365.)
U.S. Supreme Court
>(November 1-30, 2011)
Deliberately Violating Miranda To Get A Confession. Bobby v. Dixon (11/7/2011, No. 10-1540) 2011 U.S. LEXIS 7926: Ohio Supreme Court’s decision allowing the admission of petitioner’s murder confession did not contravene clearly established federal law.
>9th Circuit Court of Appeals
>(November 1-30, 2011)
Prosecutorial Misconduct For Telling The Jury To Send A Message. U.S. v. Sanchez (11/1/2011, 9th Cir. No. 10-50192) 2011 U.S. App. LEXIS 22068: The defendant was convicted of transporting 64 pounds of cocaine. The defense was duress, that the Mexican drug cartels threatened his family. In final argument, the U.S. attorney argued that if the jury acquitted, a memo should be sent to all drug traffickers to just say that their families were threatened. The Ninth Circuit reversed for prosecutorial misconduct during final argument. The argument told the jury to convict, not because the defendant was guilty, but because of the societal implications of a not-guilty verdict.