CALIFORNIA CASE LAW UPDATE – Selected California Cases
California Supreme Court (November 1-30, 2012)
Assault: LIO. People v. Wyatt (11/5/2012, S189786) 55 CA4th 694: Trial court did not err in failing to instruct on simple assault as a lesser included offense of assault on a child resulting in death.
LIO: Offender In Possession Of Firearm. People v. Sanders (11/19/2012, S191341) 55 CA4th 731: Former PC 12021(a) (offender in possession of firearm) and 12021.1(a) (violent offender in possession of a firearm) are not greater and lesser included offenses of each other and a defendant can be convicted of both offenses based on possession of the same weapon.
Offender In Possession: Multiple Convictions Based On Multiple Firearms. People v. Sanders (11/19/2012, S191341) 55 CA4th 731: A person may be separately punished for two violations of PC 12021(a)(1) and of section 12021.1(a) based on simultaneous possession of two firearms, but he may not be separately punished for violations of these statutes based on possession of the same firearm.
California Supreme Court (November 1-30, 2012)
Grants of Review
People v. Diaz REV GTD (11/20/2012, S205145) 208 CA4th 711: (1) Did the trial court err by failing to instruct the jury, on the court’s own motion, that the jury was required to consider defendant’s extrajudicial, oral statements with caution even though the statements constituted the alleged criminal act? (2) If so, did the Court of Appeal correctly conclude that the trial court’s failure to instruct was harmless error?
The following case was transferred for reconsideration in light of People v. Hernandez (2012) 53 CA4th 1095:
People v. Carranco REV GTD (5/20/2010, S181567) 2010 Cal. App. Unpub. LEXIS 1318
California Courts of Appeal (November 1-30, 2012)
PC 273ab: Age Element. People v. Moncada (10/16/2012, E052612) 210 CA4th 1124: The phrase “who is under eight years of age,” contained in PC 273ab, applies the child’s age to the date of the assault, not to the time of death.
PC 273ab: Proximate Cause – Death Over 3 Years After Assault. People v. Moncada (10/16/2012, E052612) 210 CA4th 1124: A heightened showing of proximate cause is not required to create criminal liability for involuntary manslaughter where the death occurs more than three years after the unlawful act.
PC 1111.5: Corroboration Of Jailhouse Informant’s – Retroactivity. People v. Gonzalez (10/26/2012, B236874, mod’d 11/15/2012) 210 CA4th 724: PC 1111.5 (corroboration of jailhouse informants) does not apply retroactively. A statute is presumed to operate prospectively absent an express declaration of retrospectivity or an indication from the electorate or Legislature that it intended otherwise. Nowhere in the statute or its history is there any indication that it was to be applied retroactively. The court also found that the statute does not fall within the exception of prospectivity as an ameliorative law benefitting a defendant because the statute does not serve to lessen or mitigate criminal penalty for a particular crime. (In re Estrada (1965) 63 CA2d 740.)
Competency: No Due Process Right To Separate Attorney. People v. Salter (10/29/2012, G045246) 210 CA4th 865: A prosecutor’s use of a chart to explain reasonable doubt is misconduct, subject to harmless error analysis.
Use Of Chart To Explain Instructions. People v. Otero (10/29/2012, G045246) 210 CA4th 865: A prosecutor’s use of a chart to explain reasonable doubt is misconduct, subject to harmless error analysis.
Confession: Coercion By Parole Agents’ Promise Of Leniency. People v. Gonzalez (10/29/2012, D059083) 210 CA4th 875: A parole agent’s promise of leniency to the parolee, which causes the parolee to confess, results in an involuntary and inadmissible confession. Where a person in authority makes an express or clearly implied promise of leniency or advantage for the accused, which is a motivating cause of the decision to confess, the confession is involuntary and inadmissible as a matter of law.
LIO: Drug Possession. People v. Sosa (10/30/2012, B237628) 210 CA4th 946: Possession of a controlled substance (HS 11350(a)) is not a lesser included offense of possession of a controlled substance while armed (HS 11370.1(a)).
Illinois Burglary Assault As “Strike.” People v. Washington (10/31/2012, D060411) 210 CA4th 1042: An Illinois conviction for aggravated battery is a serious felony within the meaning of PC 1192.7(c) and thus qualifies as a “strike.”
Vehicular ADW: Awareness Of Risk. People v. Aznavoleh (11/6/2012, B231434) 210 CA4th 1181: Street racer who deliberately runs red light at busy intersection need not be subjectively aware his conduct would probably and directly apply physical force to another, to sustain conviction of assault with a deadly weapon. A defendant may not be convicted of ADW “without actual knowledge of facts sufficient to establish that his or her act by its nature will probably and directly result in the application of physical force against another.” However, this does not mean a defendant must be subjectively aware of the risk he might inflict a battery, so long as he is aware of what he is doing and a reasonable person in appellant’s position would foresee that the act will probably and directly result in an application of physical force to another. Here, appellant raced with another vehicle and made no effort to stop or avoid the vehicle he hit. Based on the evidence, an objective person would appreciate that an injurious collision would result.
Internet Data Base Excluded As Hearsay. People v. Franzen (11/6/2012, H037217) 210 CA4th 1193: Internet database (“Entersect”), which is used by police to identify a cell phone owner, is not admissible under the “published compilation” exception to the hearsay rule. The Entersect evidence was inadmissible hearsay because the data did not have the hallmarks of a “published compilation.”
CC 3425 Erroneously Focuses On Whether The Defendant Acted As Though He Was Conscious. People v. Mathson (11/7/2012, C063527) 210 CA4th 1297: The CALCRIM instruction on unconsciousness (CC 3425) erroneously directs the jury to conclude a defendant is conscious if there is sufficient proof he acted as though he were conscious. The instruction is flawed because it may result in the jury considering whether there is reasonable doubt of consciousness only if the defendant acted as though he were unconscious. In addition, instead of telling the jury to find the defendant unconscious if it has a reasonable doubt that he was conscious, it instructs them to find him not guilty.
Drug Manufacturing: Possession Of Chemicals. People v. Verduzco (11/8/2012, B227825) 210 CA4th 1406: Appellant’s possession of only one of two chemicals required to manufacture a reducing agent was insufficient to support conviction under HS 11383.5(e).
Accomplice Statements To Jailhouse Informant. People v. Arauz (11/8/2012, B230053) 210 CA4th 1394: Accomplice’s statements to jailhouse informant were admissible as statements against penal interest and were not “testimonial.”
Cruel And Unusual Punishment. People v. Argeta (11/13/2012, B229135) 210 CA4th 1478: Minimum sentence of 100 years was cruel and unusual punishment where defendant was a 15-year-old minor who aided and abetted a murder. The trial court imposed a minimum aggregate sentence of 100 years on Hernandez, who was 15 years old at the time of the offense and was convicted of aiding and abetting the perpetrator. Respondent conceded that the sentence was the functional equivalent of a life sentence without the possibility of parole. Based on these circumstances, resentencing was required in a manner consistent with the decisions in Miller v. Alabama (6/25/2012, Nos. 10–9646, 10–9647) ____US ____ [183 LEd2d 407; 132 SCt 2455] and People v. Caballero (2012) 55 CA4th 262.
Sex Offender Registration. People v. Gonzalez (11/19/2012, E054886) 211 CA4th 132: Mandatory sex registration applied to a defendant convicted of possession of child pornography does not violate equal protection. Because it is often impracticable to locate a child pornography victim to establish the actual age of the child, the Legislature could rationally extend mandatory registration to the possession of child pornography featuring any child who is clearly under the 18. The disparity is still justified by society’s particular concern for children under 14. Finally, statutory rape is generally voluntary on the part of the victim whereas production of child pornography is rarely voluntary on the part of the child.
Attempted Threat. People v. Chandler (11/19/2012, E054154) 211 CA4th 114: An attempt to make a criminal threat is a crime, regardless of whether it was objectively reasonable, under the circumstances, for the victim to be in fear; this holding does not violate the First Amendment. Although the completed crime of making a criminal threat requires that the victim’s fear must actually be reasonable under the circumstances, attempting to make a criminal threat does not. The court disagreed with People v. Jackson (2009) 178 CA4th 590 on this point. Additionally, the crime of attempting to make a criminal threat does not violate the First Amendment.
Forfeiture Of Appealable Claim: Failure To Renew Claim In Trial Court. People v. Hawkins (11/20/2012, B235415) 211 CA4th 194: A defendant is required to contest a magistrate’s denial of a suppression motion in the trial court to obtain direct appellate review of the magistrate’s ruling. (People v. Lilienthal (1978) 22 CA3d 891, 896.) Given this, “the defendant cannot preserve for appeal an evidentiary issue not raised or argued in the trial court.” Here, appellant’s section 995 motion contended he did not consent to the search. He did not argue that the magistrate had erroneously admitted hearsay evidence in denying the motion. Thus, appellant did not preserve the issue for appeal.
Use Of Personal Identifying Information. People v. Barba (11/20/2012, D060457) 211 CA4th 214: PC 530.5(a) (unlawful use of personal identifying information) does not require some form of personation.
Vacating Guilty Plea: Erroneous Advice Of Counsel. People v. Noceloti (11/20/2012, B236738) 211 CA4th 1091: A defendant’s misunderstanding of a term in a negotiation plea agreement, based on the erroneous advice of his attorney, will not invalidate a plea, absent a showing of corroboration by a responsible state officer.
Multiplicity: Sex Offenses. People v. Gonzalez (11/27/2012, D059713) 211 CA4th 405: Where defendant was convicted of the same sex offense twice based on a single act, the two offenses must be consolidated into one offense.
Wende: Not Applicable To Postconviction Proceeding. People v. Serrano (11/28/2012, H036373) 211 CA4th 496: When an appeal originates from a postconviction proceeding rather than a first appeal of right, the Court of Appeal is not required to conduct a Wende (People v. Wende (1979) 25 CA3d 436) review.
“Switchblade” Defined. In re Gilbert (11/29/2012, G045929) 211 CA4th 514: A knife with a thumb stud, intended for the knife to stay closed, and a detent mechanism, to hold the blade in a fixed and closed position, is not a prohibited “switchblade.”
Provocative Act Murder: Sufficiency Of Evidence. People v. Mejia (11/30/2012, B229382) 211 CA4th 586: There was sufficient evidence that appellants were liable for the killing of their accomplice by a rival gang member under the theory of provocative act murder.
Gang Special Circumstance And Enhancement: Applicability To Provocative Act Murder. People v. Mejia (11/30/2012, B229382) 211 CA4th 586: The gang murder special circumstance and gang enhancement may apply to provocative act murder. Both the special circumstance and the enhancement may still be found true even though the motive of the actual killer may be to thwart gang activities.
SVP: Expert Opinion On Future Criminal Behavior. People v. Lowe (11/30/2012, D060048) 211 CA4th 678: In a trial pursuant to WI 6600 et seq. (Sexually Violent Predator Act), a qualified expert may testify as to whether he/she believes a person is likely to commit sexually violent criminal behavior in the future, if the testimony does not advocate for a specific outcome. Expert opinion testimony is not inadmissible simply because it embraces the ultimate issue to be decided by the trier of the fact. Rather, admissibility depends on the nature of the issue and circumstances of the case, with there being considerable judicial discretion as to its admission.
Notable U.S. Supreme Court Summary Disposition:
In a summary disposition order, the U.S. Supreme Court granted certiorari, vacated the judgment, and remanded a California Court of Appeal case for further consideration in light of Miller v. Alabama (6/25/2012, Nos. 10–9646, 10–9647) ____ US ____ [183 LEd2d 407; 132 SCt 2455] (Mauricio v. California (Oct. 29, 2012, No. 11-10139) 568 US ____ [184 LEd2d 335; 133 SCt 524].)
Mauricio was convicted of three counts of first degree murder, with various special circumstance findings as to each count, arising from two separate drive-by, gang-involved shootings. He was 17 years old at the time of the crimes and was not the actual shooter. The trial court sentenced him to three consecutive terms of LWOP, plus three consecutive terms of 25 years to life based on the jury’s findings that a principal had personally discharged a firearm causing death. In an unpublished opinion, the Second District Court of Appeal rejected Mauricio’s argument that his sentence violated the federal and state constitutional prohibitions against cruel and/or unusual punishment. (People v. Mauricio (Nov. 28, 2011, B224505) 2011 Cal. App. Unpub. LEXIS 9073.)