CALIFORNIA CASE LAW UPDATE – Selected California Cases
California Supreme Court (October 1, 2006-October 31, 2006)
California Courts of Appeal (October 1, 2006-October 31, 2006)
California Supreme Court (September 1, 2006-September 30, 2006)
California Courts of Appeal (August 28, 2006-September 30, 2006)
California Supreme Court (October 1, 2006-October 31, 2006)
There were no California Supreme Court decisions to include in this update.
Grants Of Review:
Williams v. Superior Court REV GTD (10/18/2006, S145656) 140 CA4th 1422: Briefing deferred pending decision in [NF] Garcia v. Superior Court REV GTD (9/22/2004, S127432) 120 CA4th 1252, which presents the following issue: Is a defendant entitled to file a declaration under seal in support of a motion for discovery under Pitchess v. Superior Court (74) 11 C3d 531 if the declaration contains information protected from disclosure by the attorney-client or work product privilege, and, if so, may the trial court nonetheless grant counsel for the police department access to the sealed document so long as the access is accompanied by a protective order?
In re Smith REV GTD (10/25/2006, S145959) 141 CA4th 217: Can a proceeding to commit a defendant as a sexually violent predator be maintained if the conviction on which the defendant was serving a prison sentence at the time that the sexually violent predator proceedings were initiated has been subsequently reversed on appeal?
California Courts of Appeal (October 1-October 31, 2006)
Hollywood v. Superior Court of Santa Barbara County (People) (10/5/2006, B188550) 143 CA4th 858: Recusal of the prosecutor but not entire office for helping make a movie about the case.
Haraguchi v. Superior Court of Santa Barbara County (People) (10/5/2006, B191161) 143 CA4th 846: Recusal of the prosecutor for using a case in a novel.
People v. Vu (10/6/2006, G035831) 143 CA4th 1009: Accomplice testimony—sufficiency of corroboration.
People v. Laiwala (10/6/2006, H029001) 143 CA4th 1065: Denial of a finding of factual innocence (PC 851.8) is reversed.
People v. Brock (10/11/2006, A108062) 2006 Cal. App. LEXIS 1575: The judge improperly instructed jury that the defendant could be convicted of theft against an elder (PC 368) if the defendant took unfair advantage of the elder= s weakness of mind.
People v. Rutter (10/16/2006, B186072) 2006 Cal. App. LEXIS 1609: (1) No PC 1054 discovery violation, since there was nothing in the record suggesting that the DA learned of his expert= s opinion any earlier. Compare Roland v. Superior Court (People) [(2004) 124 CA4th 154] and People v. Lamb [(2006) 136 CA4th 575)], oral statements and reports of the expert must be disclosed the same as written ones; (2) Error to instruct that perjury may be committed by an unqualified statement that something is true, when defendant does not know whether it is true or not.
People v. Valentine (10/17/06, B182712) 2006 Cal. App. LEXIS 1615: Defendant was not entitled to instructions on receiving stolen property, which is not a lesser-included offense in robbery.
People v. Mentch (10/18/2006, H028783) 2006 Cal. App. LEXIS 1623: (1) Trial court improperly refused to provide requested “primary caregiver” instruction (H&S 11362.5(d)). The court in effect directed a verdict of guilty by not allowing testimony regarding the role of a primary caregiver; (2) Judge erred in refusing to apply “safe harbor” guidelines because they were enacted after the offense dates.
People v. Bueno (10/19/06, A109650) 2006 Cal. App. LEXIS 1625: DA failed to prove personal infliction of bodily harm required to make PC 243(d) a strike.
People v. Ramirez (10/20/06, D045941) 2006 Cal. App. LEXIS 1631: (1) Judge erred in allowing statements made by rape victim for the truth of the matter, under the fresh complaint doctrine. Such statements are only admissible to prove that the victim made a complaint, not for the truth of the matter stated; (2) Judge erred in allowing the statements under the spontaneous declaration exception, because there was no substantial evidence to support the trial court= s factual determination that the victim= s mental state was inconsistent with A detached reflection or deliberation.@ The statements were made several hours after the assault, and her actions during that time made clear that her deliberative process was not affected.
People v. Grandy (10/24/2006, B186687) 2006 Cal. App. LEXIS 1656: Defendant discharged gun within meaning of PC 12022.53(c) when he tried to shoot the gun, which misfired.
People v. Demirdjian (10/24/2006, B188113) 2006 Cal. App. LEXIS 1654: Life sentences for juveniles are not cruel and unusual.
Ninth Circuit Court of Appeal (October 1- October 30)
Correll v. Schriro (9th Cir., 10/2/2006, No. 03-99006) 2006 U.S. App. LEXIS 24612: Failure to present mitigating evidence was not strategic because he failed to conduct a sufficient investigation to be able to make an informed decision.
Boyd v. Newland (9th Cir., 10/26/2006, No. 03-17098) 2006 U.S. App. LEXIS 26667: United States v. Tighe (9th Cir. 2001) 266 F3d 1187 does not represent clearly established federal law as determined by the United States Supreme Court.
California Supreme Court (September 1, 2006-September 30)
People v. Dominguez (8/28/2006, S130860) 39 C4th 1141: (1) No sua sponte duty to instruct on a reasonable yet mistaken belief that victim consented to sexual intercourse, within the meaning of
People v. Mayberry (75) 15 C3d 143 where the defendant did not rely on that defense, or present substantial evidence to support that defense; (2) The defendant’s forced movement, or asportation, of the victim was sufficient to prove aggravated kidnapping where defendant forced victim from the roadside where they were walking down a fairly steep 10 to 12 foot embankment into an orchard and raped her about 25 feet from the road. (See People v. Rayford (99) 9 C4th 1, 14 22); (3) Where facts overwhelmingly demonstrated defendant directly and actively participated in victim’s rape and kidnapping, trial court’s failure to instruct jury with CALJIC No. 8.27 regarding nonkiller liability under the felony murder rule or its equivalent was harmless under any standard. (See People v. Pulido (97) 15 C4th 713; People v. Cavitt (2004) 33 C4th 187.)
People v. Pokovich (8/31/2006, S127176)39 C4th 1240: Statements made during competency evaluation cannot be used even for impeachment. Distinguishes Harris v. New York (71) 401 US 222, 225 [statements obtained in violation of Miranda]; Walder v. United States (54) 347 US 62, 65 [evidence obtained in violation of the Fourth Amendment]; People v. May (88) 44 C3d 309, 315 [statements obtained in violation of Miranda]; People v. Coleman (75) 13 C3d 867, 889 [probationer’s testimony at probation revocation hearing]; People v. Crow (94) 28 CA4th 440, 452 [statements made during plea negotiations] because of policy against trying persons who are mentally incompetent.
Grants Of Review:
Stark v. Superior Court REV GTD (9/13/2006, S145337) 140 CA4th 567: (1) Does the offense of falsification of accounts or misappropriation of public funds by a public officer or employee in violation of PC 424 require intentional violation of a known legal duty or is it a general intent crime? (2) Does Gov. Code 3060, authorizing an accusation for willful or corrupt misconduct in office, require a knowing and purposeful refusal to follow the law or does general intent suffice? (3) Can a defendant move to set aside an indictment under PC 995(a)(1)(B), or object to the sufficiency of an accusation pursuant to Gov. Code 3066 on the ground the grand jury was misinstructed on the required mental state? (4) What is the standard for assessing a district attorney’s alleged conflict of interest when the issue is raised on a motion under PC 995?
People v. Manila REV GTD (9/20/2006, S144885) 138 CA4th 1459 and [NF] People v. German REV GTD (9/27/2006, S144746) 2006 Cal. App. Unpub. LEXIS 5299: Briefing deferred pending decision in [NF] People v. Palacios REV GTD (5/11/2005, S132144) 126 CA4th 428, 441, which presents the following issue: Does the multiple punishment bar of PC 654 apply to sentence enhancements generally and, in particular, to the enhancement under PC 12022.53(d), for the personal and intentional discharge of a firearm resulting in death or great bodily injury?
California Courts of Appeal (August 28-September 30)
In re Arcenio V. (7/20/2006, B186990) 141 CA4th 613: DA must prove that ammunition is live in PC 12101 [possession of live ammunition by a minor] case.
People v. Garcia (8/28/2006, S124090) 39 C4th 1070: Exoneration of welfare fraud in administrative hearing collaterally estops a criminal proceeding.
People v. Gonzalez RHG GTD (8/29/2006, C045935) 142 CA4th 436: When the court imposes a firearm enhancement under PC 12022.53(d), a 25 life enhancement, it must strike and not impose any other firearm enhancements pursuant to PC 12022.5(a)(1) and PC 12022.53(b) and (c), based on the provisions of PC 12022.53(f). This court disagrees with People v. Bracamonte (2003) 106 CA4th 704, which indicated that the other, lesser enhancements could be imposed and then stayed.
People v. Crane (8/29/2006, B190658) 142 CA 4th 425: Error to enhance appellant’s DUI sentence under VC 23540, based on his prior out of state conviction for “driving while ability impaired” where court could not determine whether the conduct underlying out of state conviction would have violated California’s DUI standard. A foreign enhancement is only permissible when the conduct underlying the foreign conviction meets all of the elements of the California offense. (People v. Guerrero (93) 44 C3d 343.) Where the record does not disclose the facts of the prior offense, the court will presume that the prior offense was for the least offense punishable under the foreign law. (Id., at p. 355.)
People v. Massie (8/29/2006, C050124) 142 CA4th 365: Defense theory that “mindless reason” precluded intent to inflict injury required for torture.
People v. Galindo (8/30/2006, C049214) 142 CA4th 531: (1) A challenge to the sufficiency of evidence is forfeited in the trial court only by failure to file timely notice of appeal, not by failure to object (People v. Rodriguez (98) 17 C4th 253, 262; (2) In issuing order to extend defendant’s commitment for bipolar disorder pursuant to PC 1026.5(b)(1), the court committed prejudicial error by failing to consider whether the defendant had serious difficulty in controlling his dangerous behavior, instead finding only that he did not in fact control it.
People v. Nelson (8/31/2006, C047366) 142 CA4th 696: (1) Where Supreme Court unequivocally states a principle of law in a unanimous opinion, statement, albeit dictum, should be followed absent sound reasons otherwise. (Hubbard v. Superior Court (97) 66 CA4th 1163, 1169; 9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, sec. 947, pp. 989-991); (2) Pre-filing delay can violate California due process [but not federal] on a showing of negligent delay if prejudice is shown; (3) 26 year delay in charging did not violate due process when DNA database used to link defendant to crime did not exist at time of offense. Defendant did not show enough prejudice from the delay; (4) Kelly-Frye has been met on generating the product rule for cold hit DNA matches. They get results here like 1 in 950 sextillion and 1 in 130 septillion. There are 21 zeros in a sextillion and 24 zeros in a septillion.
People v. Johnson (8/31/2006, F048042)142 CA4th 776: (1) Prosecutor’s withholding of police reports of involvement by prosecution’s chief witness in a shooting after the first trial and before the second mandated reversal. The reports directly impeached the witness’ testimony that he had no gang relations; (2) Following an acquittal for first degree murder, a conviction on retrial for conspiracy to commit murder does not violate double jeopardy. The court distinguished Ashe v. Swenson (1970) 397 U. 436, and followed Dunn v. United States (32) 284 US 390, which held that apparently inconsistent verdicts will not be overturned as the verdict may have been the result of compromise or of a mistake on the part of the jury.
People v. Hill (8/31/2006, C050155) 142 CA4th 770: PC 186.22(b) does not require that the defendant’s intent to enable or promote criminal endeavors by other gang members must relate to criminal activity apart from the offense the defendant commits. This court as did in People v. Romero (2006) 140 CA4th 15 refused to follow Garcia v. Carey (9th Cir. 2005) 395 F3d 1099 which found that a showing of intent to promote the gang’s criminal activity beyond the charged crime.
People v. Palmer (8/31/2006, C049018) 142 CA4th 724: It was proper to enhance the defendant’s sentence for DUI with his previous Nevada DUI convictions even though he did not have a right to a jury trial in the Nevada proceedings since the priors were classified as petty offenses. This court refused to follow United States v. Tighe (9th Cir. 2001) 266 F3d 1187.
People v. Green (9/5/2006, B186639) 142 CA4th 907: Felony vandalism (PC 549(a)) did not inherently involve force or violence and thus did not make defendant subject to “treatment” as MDO. (PC 2692(e).)
People v. Smith (9/7/206, E037036) 142 CA4th 923: Exception to People v. Gauze [(75) 15 C3d 709 [person can’t burglarize their own home]] exception for a person who is barred from the family home, jointly owned, where the family law court issues a temporary restraining order (TRO) precluding that person from entering the family home. But mere entry with intent isn’t enough. In addition to the entry there must be a danger that arises from the mere entry.
People v. Jasso (9/12/2006, H028593) 142 CA4th 1225: Conspiracy – failure to instruct on the number of conspiracies; Court prejudicially erred in failing to instruct sua sponte to decide whether there was one all-encompassing conspiracy instead of the three separate conspiracies charged. See People v. Vargas (2001) 91 CA4th 506, 554; People v. Morocco (87) 191 CA3d 1449, 1453; Braverman v. United States (42) 317 US 49, 53. Here there was evidence of a general all-inclusive conspiracy to smuggle drugs.
People v. Jasso (9/12/2006, H028593) 142 CA4th 1225: (1) Habeas corpus cannot serve as a substitute for issues that could have been raised on appeal (see In re Dixon (53) 41 C2d 756, 759). However, when appeal is precluded because of counsel’s failure to object and preserve the issue, it can be raised in habeas as ineffective assistance of counsel. However, the question has to be decided using the lower Strickland v. Washington standard rather than the harmless-beyond-a-reasonable-doubt standard (2) Routine practice of shackling defendants and making them wear a prison jumpsuit is condemned and should be prevented by judge and DA.
People v. Thompson (9/15/06, E038743) 142 CA4th 1426: Raping a person incapable of giving consent: distinction between general ability to understand sex and that person’s ability to understand sex at a given time and situation.
People v. Baldwin (9/15/2006, C051402) 142 CA4th 1416: Structural error to close courtroom to all spectators during 14-year-old child molestation victim’s testimony based only on prosecutor’s assertion that victim would have difficulty testifying. Under Waller v. Georgia [(1984) 467 US 39], a court may close a criminal proceeding only if (1) there’s an overriding interest likely to be prejudiced; (2) the closure is no broader than necessary to protect that interest; (3) the trial court has considered reasonable alternatives; and (4) the trial court articulates the interest being protected and makes specific findings. The mere claim that the victim would have difficulty testifying is insufficient: the trial judge didn’t see the victim and didn’t conduct a hearing. PC 868.7, permitting the closing of prelims, has standards similar to Waller. PC 859.1(a) requires a showing that the minor’s reputation needed protection.
People v. Matye (9/19/2006, C050332) 142 CA4th 1510: To prove a person is a dependent adult (PC 368) government need not prove person is completely incapable of carrying out normal activities, so long as person’s capabilities are is limited in significant way.
People v. Buchanan (9/21/2006, F048022) 143 CA4th 139: Use of juvenile priors does not violate jury trial right.
People v. Corcoran (9/22/06, B180779) 143 CA4th 272: Kidnapping – movement of 10 feet from public area to back officer after aborted robbery is not incidental to attempted robbery.
People v. Riskin (9/22/2006, F047102) 143 CA4th 234: Imposition of One Strike term (PC 667.61) for forcible lewd act violated right against ex post facto law in absence of proof the offense was committed before the effective date of the law.
People v. Simmons (9/22/2006, H026450) 143 CA4th 256: “We strongly admonish the trial court that shackling decisions must be made on the record and on the basis of demonstrated, particularized necessity. In this case, because the record contains no evidence that the trial court made such a determination, we reach the inescapable conclusion that the court erred.”
People v. Maestas (9/22/2006, C048615) 143 CA4th 247: Insufficient evidence for trial court to find that second degree burglaries were serious felonies; “The court may look beyond the fact of conviction but not beyond logic and reason.”
People v. Jenkins (9/25/2006, C049573) 143 CA4th 369: Multiple punishment prohibition does not prevent convictions for both aggravated assault resulting in great bodily injury and battery with serious bodily injury, but one of the sentences had to be stayed.
People v. Burton (9/27/2006, C051500) 143 CA4th 447: Parent may be convicted of misdemeanor child endangerment (PC 273(b)) “by engaging in serious domestic violence against the other parent while aware that” the child is present.
In re Hernandez (9/27/2006, G035909) 143 CA4th 459: Counsel committed prejudicial error by failing to object to prosecution experts’ testimony at sanity trial. Because the experts had been appointed by the court to determine competency and sanity, defendant’s statements to them were inadmissible, which rendered their testimony inadmissible as well. Opinions of third expert who relied upon the others’ reports (and the defendant’s statements) were equally inadmissible. (Tarantino v. Superior Court (75) 48 CA3d 465; People v. Arcega (82) 32 C3d 504; People v. Higgins (2006) 38 C4th 175, 249.)
People v. McSherry (9/28/2006, B181229) 143 CA4th 598: Felony violation of PC 647.6 (due to priors) is subject to felony statute of limitations. See also People v. San Nicolas (86) 185 CA3d 403.
People v. Esquibel (9/28/2006, B165767) 143 CA4th 645: No violation of constitutional right to public trial in excluding two friends of defendant’s during testimony of 7-year-old witness.
Murillo v. Superior Court (People) (9/29/2006, G035816) 143 CA4th 730: Prosecutor is not allowed to propound requests for admissions which could eliminate his burden to prove the ultimate issue in the case beyond a reasonable doubt, despite the fact that Sexually Violent Predator proceedings are nominally civil in nature.
Ninth Circuit Court of Appeal (September 1- September 30)
Reynoso v. Giurbino (9/6/06, 9th Cir. No. 05-55695) 462 F3d 1099: Failure to investigate question of witnesses’ knowledge of reward and expectation of receiving payment if their testimony helped to convict constituted prejudicial ineffective assistance.
United States v. Stevens (9/13/2006 9th Cir. No. 05-30597) 462 F3d 1169: Child pornography – ex post facto application of change in definition; District court prejudicially erred by applying amended definition of “minor” (which was changed to include a fictitious minor) in child pornography prosecution to enhance sentence. The modification was a substantive change and not just a clarification.
Comer v. Schiro (9th Cir. 9/13/06, No. 98-99003) 463 F3d 934: Prosecution misconduct dehumanizing epithets during closing argument]; Misconduct for DA to use dehumanizing epithets during closing argument. The court “condemn[ed]” the prosecutor’s references to the defendant as “filth,” a “monster,” and “a reincarnation of the devil.” However, the remarks did not rise to the level of a due process violation that rendered the trial fundamentally unfair.
Frierson v. Woodford (9th Cir. 9/14/2006, No. 04-99002) 2006 U.S. App. LEXIS 23520: (1) Failure to investigate and present mitigation evidence of multiple childhood head trauma, possible organic brain dysfunction, borderline retardation, learning disabilities, chronic substance abuse, and emotional disorder was IAC; (2) Failure to review juvenile records and to challenge key witness’ assertion of privilege against self incrimination at penalty phase was ineffective assistance of counsel.
United States v. Howard (9th Cir. 9/15/2006, No. 03-50524) 463 F3d 999: Shackling all pretrial detainees making their first appearance before Los Angeles magistrate judges justified because of security concerns: multiple defendants, large unsecured courtroom, and lack of adequate security coverage.
United States v. Durham (9th Cir. 9/22/2006, No. 05-30403) 464 F3d 976: Drug Identification: Government not required to introduce scientific evidence to prove identity of substance as long as there was enough lay testimony or circumstantial evidence.