CALIFORNIA CASE LAW UPDATE – Selected California Cases
California Supreme Court (November 27, 2006-December 31, 2006)
People v. Kelly (11/27/2006, S133114) 40 C4th 106: Wende opinions: where the appellant raises issues, the appellate opinion must address those issues, even if only briefly.
In re Burton (12/18/2006, S034725) 2006 Cal. LEXIS 14988: An order to show cause issued in habeas proceedings for a prisoner under a death sentence is discharged where petitioner failed to prove that his trial attorney disregarded a clearly expressed desire to present a guilt phase defense under People v. Frierson (1985) 39 C3d 803.
Grants Of Review:
People v. Nelson REV GTD (11/15/2006, S147051) 142 CA4th 696: The court limited the issues to be briefed and argued to the following: (1) Is the methodology for assessing the statistical significance of a “cold hit” from a DNA database a novel scientific question requiring proof of general scientific acceptance under People v. Kelly (76) 17 C3d 24 and People v. Leahy (94) 8 C4th 587? (2) How should the statistical significance of a “cold hit” from a DNA database be calculated? (3) Was defendant denied his right to a speedy trial under the state and federal Constitutions, where the complaint was filed 26 years after the crime but only two months after DNA tests linked him to the crime?
People v. Bradley REV GTD (12/13/2006; S146985) 142 CA4th 247: Briefing deferred pending decision in Stark v. Superior Court REV GTD (9/13/2006, S145337) 140 CA4th 567, which includes the question whether the offense of misappropriation of public funds by a public officer or employee in violation of PC 424 requires intentional violation of a known legal duty or is a general intent crime, and People v. Chacon REV GTD (8/11/2004, S125236) 117 CA4th 961, which includes the question whether California law should recognize the defense of entrapment by estoppel.
City of Los Angeles v. 2000 Jeep Cherokee REV GTD (Civil) (11/1/2006, S147724) 2006 Cal. App. Unpub. LEXIS 8462: Briefing deferred pending decision in O’Connell v. City of Stockton REV GTD (9/6/2005, S135160) 128 CA4th 831, which includes the following issue: Does state law preempt a local ordinance providing for the forfeiture of a motor vehicle used to solicit an act of prostitution or to attempt a drug transaction?
Haraguchi v. Superior Court REV GTD (12/20/2006, S148207) 143 CA4th 846: Review on the court’s own motion after the Court of Appeal granted in part and denied in part a petition for peremptory writ of mandate. This case presents the following issues: (1) Was the trial court’s ruling on a motion for recusal alleging conflict of interest, because the prosecutor had written a novel allegedly based in part on the facts of this case, subject to independent review or reviewable only for an abuse of discretion? (2) Was recusal appropriate under either standard?
Hollywood v. Superior Court REV GTD (12/20/2006, S147954) 143 CA4th 858: (1) Was the trial court’s ruling on a motion for recusal alleging conflict of interest, because the prosecutor had cooperated with filmmakers planning a motion picture based on this case, subject to independent review or reviewable only for an abuse of discretion? (2) Was recusal appropriate under either standard? (3) If recusal was required, was it error not to recuse the entire district attorney’s office?
California Courts of Appeal (October 31, 2006-December 31, 2006)
People v. Poindexter (10/31/2006, A110370) 144 CA4th 572: Both first degree murder and special circumstance based on lying in wait require a substantial period of watching and waiting.
People v. Balkin (12/1/2006, B186152) 145 CA4th 487: PC 290 sex offender registration conviction reversed due to lack of evidence regarding the date when defendant entered the county.
In re Nourn (12/14/2006, D046347) 2006 Cal. App. LEXIS 1940: (1) The majority notes that duress is a defense to the underlying felony in a felony murder, so they rule that it’s a defense to aiding a target offense where that assault leads to murder; (2) Conviction of first degree murder and arson is vacated where the performance of defense counsel in failing to investigate the existence of battered women’s syndrome was below the applicable standard of objective reasonableness and resulted in prejudice.
People v. Johnson (12/14/2006, A112502) 2006 Cal. App. LEXIS 1939: Statute of limitations for a crime is not affected by any enhancements but prior conviction is not an enhancement.
People v. Brandon (12/15/2006, B186361) 2006 Cal. App. LEXIS 1947: Failure to challenge the qualifications of a witness to offer an opinion based on special skill, training, and experience at trial constitutes a forfeiture of the issue on appeal. (People v. Bolin (1998) 18 C4th 297, 321; People v. Williams (1997) 16 C4th 153, 194-195; People v. Roberts (1992) 2 C4th 271, 298.)
People v. Brandon (12/15/2006, B186361) 2006 Cal. App. LEXIS 1947: (1) See Maryland v. Craig (1990) 497 US 836 [111 LEd2d 666; 110 SCt 3157] [use of closed circuit television in child abuse case approved]; (2) Failure to object to the qualifications of an expert witness testifying at trial as to the sub-culture of pimping and pandering results in forfeiture of the issue on direct appeal; (3) Opinion testimony can include testimony dealing with the sub-culture of pimping and pandering as it is outside the knowledge of the average person and such evidence would assist the average juror; (4) Opinion testimony described above does not amount to a type of prohibited “profile” testimony. Profile testimony is not inadmissable per se but only if it is either irrelevant, lacks a foundation, or is more prejudicial than probative. (People v. Smith (2005) 35 C4th 334.)
People v. Conrad (12/19/2006, C047936) 2006 Cal. App. LEXIS 1987: Pre-information “prosecutorial delay, during which a witness favorable to the defense dies, may violate state due process and speedy trial guarantees.” However, lost testimony may be presented by other means, such as instruction to the jury. For example, where alibi witness became unavailable court should instruct on the factual basis for the alibi and explain why the alibi witness is not available to testify.
People v. Smart (12/19/2006, C049931) 2006 Cal. App. LEXIS 1991: Gang expert’s opinion testimony was sufficient to establish predicate offenses when witness had personally investigated the two offenses and provided “a wealth of detail” about them. Distinguishes In re Nathaniel C. (1991) 228 CA3d 990 and In re Leland D. (1990) 223 CA3d 251 [nonspecific hearsay information about other offenses].
People v. Smart (12/19/2006, C049931) 2006 Cal. App. LEXIS 1991: Court misinstructed on proximate cause element of PC 12022.53(d).
People v. Smart (12/19/2006, C049931) 2006 Cal. App. LEXIS 1991: Error to impose multiple PC 12022.53 enhancements even if there are multiple victims.
People v. Smart (12/19/2006, C049931) 2006 Cal. App. LEXIS 1991: A defendant is entitled to fair notice of specific sentence enhancement allegations that will be invoked to increase punishment for his crimes.
In re Miller (12/19/2006, A114585) 145 CA4th 1228: A parolee has a constitutional right to confront and cross examine adverse witnesses at a parole revocation hearing unless the hearing officer specifically finds good cause for not allowing confrontation.
People v. Ortega (12/20/2006, C047487) 2006 Cal. App. LEXIS 2006: Citing to People v. Osband (1996) 13 C4th 622, 717, court concludes that written instructions (where the latter are taken into the jury room) govern.
Note: Osband is wrong, because the jury is not told to read the instructions. A document which is not shown to have been read by the jury cannot govern over the oral instructions given to it.
People v. Ortega (12/20/2006, C047487) 2006 Cal. App. LEXIS 2006: No error in allowing jury to take copies of DA’s chart (which did not contain any errors) as part of the jury instructions was not shown to be prejudicial, though the court calls the trial court’s actions as “certainly irregular.”
People v. Arnold (12/20/2006, C050141) 2006 Cal. App. LEXIS 2026: Under PC 12001(c), for purposes of possession of a firearm by a convicted felon “the term ‘firearm’ includes the frame or receiver of the weapon,” and possession of the frame or receiver is sufficient, but not necessary, for a PC 12021(a)(1) violation.
People v. Dutra (12/20/2006, C051198) 2006 Cal. App. LEXIS 2003: Courts exercising inferior jurisdiction must accept the law declared by courts of superior jurisdiction. The terms of the remittitur define the trial court’s jurisdiction, not the law of the case. Further, the reviewing court cannot review or modify its own judgments once the cause has passed from its control by the issuance of the remittitur.
Carrillo v. Superior Court (People) (12/21/2006, B191701) 2006 Cal. App. LEXIS 2034: Ineffective assistance of counsel is not legal necessity for mistrial.
People v. Harris (12/21/2006, A111860) 2006 Cal. App. LEXIS 2029: Conviction for commission of a felony in violation of PC 4573.5, based on defendant’s bringing “medical marijuana” without authorization into a county correctional facility, is reversed as PC 4573.5 does not apply to controlled substances.
People v. Isom (12/21/2006, C048429) 2006 Cal. App. LEXIS 2035, modified at 2006 Cal. App. LEXIS 2036: (1) Factors to be considered in determining whether evidence offered pursuant to Evidence Code section 1108 (propensity to commit sexual crimes), should be excluded pursuant to Evidence Code section 352, include the nature, relevance, and possible remoteness of the uncharged act; the degree of certainty of its commission; the similarity to the current offense; the burden to defendant of defending against the uncharged act; the likelihood of confusing the jurors, and the availability of other alternatives; (2) PC 647.6 is not a lesser included offense of PC 288.
People v. Rasmussen (12/21/2006, B183616) 2006 Cal. App. LEXIS 2032: In a proceeding for conditional release under the Sexually Violent Predator ACT (WI 6608), the trial court, in determining if it is likely that the person will engage in sexually violent criminal behavior due to his or her diagnosed mental disorder if under supervision and treatment in the community, is to use the same definition of “likely” as that developed in People v. Ghilotti (2002) 27 C4th 888—namely, will the person present a substantial danger, i.e., a serious and well-founded risk, that he or she will commit such crimes if free in the community.
People v. Valencia (12/26/2006, H029370) 2006 Cal. App. LEXIS 2053: 30-year sentence for conviction of two counts of continuous sexual abuse of a child and two counts of forcible lewd conduct on a child for acts against defendant’s three younger sisters is reversed as to one of the continuous sexual abuse counts where trial counsel was prejudicially deficient in failing to object to lack of personal knowledge by hearsay declarant who the prosecution relied upon to prove the time period element.
People v. Woods (12/27/2006, B181412) 2006 Cal. App. LEXIS 2055: Prosecutorial misconduct (1) arguing defense had some burden to present evidence; (2) suggesting the existence of evidence outside the record; (3) implying defense counsel suborned perjury.
People v. Zachery (12/27/2006, C051431) 2006 Cal. App. LEXIS 2054: When there is a discrepancy between the oral pronouncement of judgment and the minute order or the abstract of judgment, the oral pronouncement controls.
Ninth Circuit Court of Appeal (December 1-December 31)
United States v. Sandoval-Mendoza (9th Cir. 12/27/2006, No. 04-10118) 2006 U.S. App. LEXIS 31815: Error to order defense counsel to not speak to the client about cross-examination during an overnight recess. (Compare Geders v. United States (1976) 425 US 80 [47 LEd2d 592; 96 SCt 1330] [prohibition on communication during overnight recess deprived defendant of Sixth Amendment right to counsel] to Perry v. Leeke (1989) 488 US 272 [102 LEd2d 624; 109 SCt 594] [prohibition on communication during 15-minute recess between direct and cross did not].)
United States v. Sandoval-Mendoza (9th Cir. 12/27/2006, No. 04-10118) 2006 U.S. App. LEXIS 31815: Error to exclude expert testimony of defendant’s subnormal intelligence and suggestibility to entrapment due to a large brain tumor.
U.S. Supreme Court (December 1, 2006-December 31, 2006)
Lopez v. Gonzales (12/5/2006, No. 05-547) ____ US ____ [____ LEd2d ____; 127 SCt 625; 2006 U.S. LEXIS 9442]: Conduct that is a felony under state law but a misdemeanor under the Controlled Substances Act is not a “felony punishable under” the CSA for removal purposes.
Carey v. Musladin (12/11/2006, No. 05-785) ____ US ____ [166 LEd2d 482; 127 SCt 649]: Wearing of buttons displaying the victim’s image by trial spectators was not inherently prejudicial.
Note: This case should not be cited for the proposition that spectator behavior may not be inherently prejudicial. The court does mention in footnote that the record did not reflect the size of the buttons, or how many spectators wore them, or for how many days. Trial counsel should still object and make a complete record! (See also People v. Houston (2005) 130 CA4th 279 [wearing of buttons can be prejudicial].)