CALIFORNIA CASE LAW UPDATE – Selected California Cases
California Supreme Court (October 1, 2007-October 31, 2007)
People v. Lamas (10/25/2007, S145231) 42 C4th 516: There was prejudicial instructional error where the jury was only required to find that defendant committed a misdemeanor in order to find him guilty of PC 12031(a)(2)(C). PC 12031(a)(2)(C) elevates a misdemeanor offense of carrying a loaded firearm in public to a felony if it is committed by an active participant in a street gang as defined by section 186.22(a). In People v. Robles (2000) 23 C4th 1106, the California Supreme Court interpreted the phrase “active participant in a criminal street gang as defined by PC 186.22” in section 12031, subdivision (a)(2)(C) to mean that carrying a loaded firearm in public becomes a felony under section 12031(a)(2)(C) when a defendant satisfies the elements of the offense described in section 186.22(a). In this case, the Court further considered the interplay between those two sections, holding that in order to establish the elements of section 186.22, the prosecution must prove that the charged gang member willfully promoted, furthered, or assisted members of his gang in felonious criminal conduct distinct from his otherwise misdemeanor conduct of carrying a loaded firearm in public or a concealed weapon on his person. This conclusion applies both to the substantive charge of a violation of section 186.22(a) and to the gun offenses that elevate to felonies upon proof that the defendant satisfied the Robles requirements. Therefore, the trial court here committed prejudicial error when it instructed the jury that felonious criminal conduct includes carrying a loaded firearm in a public place by a gang member. The instruction removed an essential element from the offense because it required the jury to find only that defendant committed or aided and abetted a gang member in committing a misdemeanor, rather than that the defendant had engaged in felonious conduct. The error was prejudicial, and reversal was required.
Grants Of Review:
People v. Nguyen REV GTD (10/10/2007, S154847) 152 CA4th 1205: Can a prior juvenile adjudication of a criminal offense in California constitutionally subject a defendant to the provisions of the three strikes law (PC 667(b)-(i), 1170.12) although there is no right to a jury trial in juvenile wardship proceedings in this state?
On 10/10/07, the California Supreme Court granted review in People v. Nguyen, which had held that a juvenile prior cannot be used as a strike prior. With Nguyen now depublished, counsel should look at U.S. v. Tighe (9th Cir. 2001) 266 F3d 1187, where a divided panel of the Ninth Circuit Court of Appeals held that “a juvenile adjudication is not a prior conviction for Apprendi purposes, and therefore is not excepted from Apprendi’s rule. Based on the language in Apprendi and in Apprendi’s precursor, Jones, the Tighe majority determined the exception for prior convictions is a narrow one that is ‘limited to prior convictions resulting from proceedings that afforded the procedural necessities of a jury trial and proof beyond a reasonable doubt.’ (Tighe, at p. 1194, fn. omitted.) Thus, since the criminal defendant was not afforded a jury trial when his juvenile offense was adjudicated, his juvenile adjudication does not qualify as a prior conviction for Apprendi purposes.” (People v. Nguyen, supra, at p. 1224.)
People v. Azam REV GTD (10/10/2007, S156008) 2007 Cal. App. Unpub. LEXIS 6192; People v. Macias REV GTD (10/10/2007, S156127) 2007 Cal. App. Unpub. LEXIS 5949; People v. Zuniga REV GTD (10/10/2007, S156327) 2007 Cal. App. Unpub. LEXIS 6499; briefing in Azam, Macias, and Zuniga deferred pending decision in People v. Towne REV GTD (2/7/2007, S125677) 2007 Cal. LEXIS 1437, which includes the following issue: Do Cunningham v. California (2007) 549 U.S. __, 127 S.Ct. 856, and Almendarez-Torres v. United States (1998) 523 U.S. 224, 239-247, permit the trial judge to sentence defendant to the upper term based on any or all of the following aggravating factors, without submitting them to a jury: the defendant has served a prior prison term; the defendant was on parole when the crime was committed; the defendant’s prior performance on probation or parole was unsatisfactory (California Rules of Court, Rule 4.421, subds. (b)(2) – (b)(5))?
People v. Boysen REV GTD (10/17/2007, S155417) 152 CA4th 1409: Briefing deferred pending decision in People v. Nelson REV GTD (11/15/2006, S147051) 142 CA4th 696 to consider the following issue: 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. Brown REV GTD (10/17/2007, S155093) 2004 Cal. App. Unpub. LEXIS 7721: Briefing deferred pending decision in People v. Towne REV GTD (2/7/2007, S125677) 2007 Cal. LEXIS 1437, and People v. Nguyen REV GTD (10/10/2007, S154847) 152 CA4th 1205, which present issues concerning the use as aggravating sentencing of such factors as being on probation or parole when a crime was committed and prior unsatisfactory performance on probation or parole, and whether a prior juvenile adjudication of a criminal offense in California can constitutionally subject a defendant to the provisions of the three strikes law (PC 667(b)-(i), 1170.12) although there is no right to a jury trial in juvenile wardship proceedings in this state.
People v. Arias REV GTD (10/24/2007, S155571) 153 CA4th 848: Does HS11366.8, which prohibits the possession or use of a “false compartment” in a vehicle for the purpose of storing, concealing, or transporting controlled substances, require an addition to or modification of the original factory equipment of the vehicle, as opposed to using the glove compartment or secreting contraband behind a panel in the vehicle?
In re Gomez REV GTD (10/24/2007, S155425) 153 CA4th 1516: Is a habeas corpus petitioner whose conviction became final after Blakely v. Washington (2004) 542 U.S. 296 but before Cunningham v. California (2007) 549 US__, 127 SCt 865, entitled to the benefit of the high court’s decision in Blakely?
In re Shaputis REV GTD (10/24/2007, S155872) 2007 Cal. App. Unpub. LEXIS 6782: (1) In assessing whether “some evidence” supports a decision by the Governor to deny parole, is the inquiry limited to whether the reasons stated have a factual basis or should a reviewing court also examine whether the evidence supports a finding that the inmate presents an unreasonable current risk of danger to the public? (2) When a reviewing court determines that a gubernatorial parole decision is not supported by sufficient evidence, should it remand the matter to the executive branch to proceed in accordance with due process, or should it order the inmate’s immediate release?
In re Antonio P. REV GTD (10/24/2007, S156335) 153 CA4th 1540: Briefing deferred pending decision in People v. Nguyen REV GTD (10/10/2007, S154847) 152 CA4th 1205, which presents the following issue: Can a prior juvenile adjudication of a criminal offense in California constitutionally subject a defendant to the provisions of the three strikes law (PC 667(b)-(i), 1170.12) although there is no right to a jury trial in juvenile wardship proceedings in this state?
In re Cooper REV GTD (10/24/2007, S155130) 153 CA4th 1043: Briefing deferred pending decision in In re Lawrence REV GTD (9/19/2007, S154018) 150 CA4th 1511, which includes the following issue: In making parole suitability determinations for life prisoners, to what extent should the Board of Parole Hearings, under PC 3041, and the Governor, under Article V, section 8(b) of the California Constitution and PC 3041.2, consider the prisoner’s current dangerousness, and at what point, if ever, is the gravity of the commitment offense and prior criminality insufficient to deny parole when the prisoner otherwise appears rehabilitated?
In re Lewis REV GTD (10/31/2007, S117235) (original proceeding, related to the automatic appeals in People v. Lewis (1990) 50 C3d 262 and People v. Lewis (2004) 33 C4th 214), the court issued an order to show cause limited to claims why petitioner is not entitled to relief (1) as a result of trial counsel’s failure to adequately investigate and present mitigating evidence at the penalty phase of petitioner’s trial, and (2) on the ground that he is mentally retarded within the meaning of Atkins v. Virginia (2002) 536 US 304. (See In re Hawthorne (2005) 35 C4th 40.)
People v. Medina REV GTD (10/31/2007, S155823) 153 CA4th 610: Did the Court of Appeal err in holding the evidence insufficient to support defendants’ convictions for murder and attempted murder under the natural and probable consequences doctrine based on the target offenses of assault and battery?
People v. Thomas REV GTD (10/31/2007, S155883) 2007 Cal. App. Unpub. LEXIS 5385: Briefing deferred pending decision in People v. Scott REV GTD (11/16/2005, S136498) 2005 Cal. App. Unpub. LEXIS 6285, which presents the following issue: Did the trial court err in instructing the jury that all employees have constructive possession of their employer’s property during a robbery, and, if so, what is the proper standard for determining whether an employee has constructive possession of the employer’s property during a robbery?
People v. Vasquez REV GTD (10/31/2007, S156297) 2007 Cal. App. Unpub. LEXIS 6407: Briefing deferred pending decision in People v. French REV GTD (2/7/2007, S148845) 2006 Cal. App. Unpub. LEXIS 9689, which includes the question whether the trial court violated defendant’s Sixth Amendment right to a jury trial, as interpreted in Cunningham v. California (2007) 549 U.S. __, 127 S.Ct. 856, by imposing an upper term sentence based on aggravating factors not found true by the jury, where the defendant entered a no contest plea and was sentenced in accordance with his plea agreement.
Dispositions
Review in the following cases was dismissed in light of Davis v. Washington (2006) 547 US 813 [165 LEd2d 224: 126 SCt 2266], and People v. Cage (2007) 40 C4th 965:
People v. Lee REV GTD (3/16/2005, S130570) 124 CA4th 483 (see FORECITE PG VII(C)(43) Right To Confrontation: Hearsay Testimony – Crawford Update: Tape Recorded Statements Of Available Witnesses – Crawford Applies.)
People v. Sanchez REV GTD (7/26/2006, S143771)138 CA4th 1085.
Review in the following cases was dismissed in light of Davis v. Washington (2006) 547 US 813 [165 LEd2d 224: 126 SCt 2266], People v. Cage (2007) 40 C4th 965, and People v. Black (2007) 41 C4th 799:
People v. Ochoa REV GTD (11/17/2004, S128417) 121 CA4th 1551 (see FORECITE PG VII(C)(43) Right To Confrontation: Hearsay Testimony – Crawford Update: Opportunity To Cross-Examine.)
Review in the following cases was dismissed in light of People v. Palacios (2007) 41 C4th 720:
People v. Manila REV GTD (9/20/2006, S144885) 138 CA4th 1459
People v. German REV GTD (9/27/2006, S144746) 2006 Cal. App. Unpub. LEXIS 5299
People v. Banchon REV GTD (4/11/2007, S149634) 2006 Cal. App. Unpub. LEXIS 11309
The following case was transferred for reconsideration in light of People v. Licas (2007) 41 C4th 362:
People v. Darling REV GTD (2/14/2007, S148460), unpublished below D047251.
Review in the following case was dismissed in light of People v. Allen (2007) 42 C4th 91:
McQuarters v. Superior Court REV GTD (7/26/2006, S143777) 138 CA4th 1357.
California Courts of Appeal (October 1, 2007-October 31, 2007)
Selected Decisions:
In re Jose C. (10/1/2007, D049525) 155 CA4th 1115: The state juvenile court properly had jurisdiction over a minor who violated a federal law. A juvenile court found true an allegation that 16-year-old Jose committed a federal offense of bringing aliens into the United States, and that therefore he fell within the court’s jurisdiction under WI 602. On appeal, Jose contended that the state court had no jurisdiction over him because the sole basis of the juvenile petition was a federal offense. The appellate court rejected the argument and affirmed. The state has concurrent jurisdiction over all cases brought under federal law. Congress did not intend to give federal courts exclusive jurisdiction over juvenile delinquency cases based solely upon a federal law violation. Nor is there clear incompatibility between state court jurisdiction and federal interests. The state has a strong interest in ensuring that minors who violate laws, state or federal, obtain the protective and rehabilitative objectives of the state juvenile justice system.
People v. Binkerd (10/2/2007, B198470) 155 CA4th 1143: The crime of driving under the influence causing injury is necessarily included in the offense of vehicular manslaughter without gross negligence. Appellant pleaded no contest to vehicular manslaughter without gross negligence (PC 192(c)(3)) in count one, and driving under the influence of alcohol causing injury (VC. 23153(a)) in count two. On appeal, she contended that the trial court improperly entered judgment on count 2 because it is a necessarily lesser included offense of count 1. The appellate court agreed and reversed the conviction on count 2. Both counts 1 and 2 had the same victim; appellant could not commit a violation of count 1 without injuring the same victim, as charged in count 2. Under the statutory elements test, the violation of section 23153 is necessarily a lesser included offense of section 192, subdivision (c)(3).
People v. Montero (10/2/2007, C052423) 155 CA4th 1170: The jury was adequately instructed with CALCRIM 2302. In his appeal from his conviction for possession of methamphetamine for sale, appellant challenged CALCRIM 2302, which he contended erroneously omitted the element of “dominion and control” and “knowing exercise of control” from its definition of possession of methamphetamine for sale. The appellate court rejected the argument, finding that the instruction correctly expresses the knowledge requirement. It correctly stated the element of possession and knowledge in a manner reasonable jurors were able to understand.
The trial court did not err when it instructed the jury to reread CALCRIM 2302 without providing more information. Appellant further claimed that the court erred by not providing a response to a jury question as to the meaning and application of the element of control, other than to reread CALCRIM 2302. The appellate court found no error. The instruction adequately explains the element of control and how to apply it. Any detailed response to the question would have put the court in the jury’s role of deliberating whether appellant controlled the substances.
People v. Guerrero (10/3/2007, C052364) 155 CA4th 1264: CALCRIM 220 does not violate due process. In appellant’s trial for lewd and lascivious acts on a child under 14, the trial court instructed the jury with CALCRIM 220. On appeal, appellant contended this instruction prevented the jury from considering a lack of evidence in deciding whether reasonable doubt existed because of the phrase “the evidence that was received throughout the entire trial.” The appellate court rejected the argument, finding that CALCRIM 220 does not suggest an impermissible definition of reasonable doubt to the jury. It neither lowers the prosecution’s standard of proof nor raises the amount of doubt the jury must find in order to acquit.
People v. Ceja (10/3/2007, D049566) 155 CA4th 1246: Appellant could only be sentenced on the greater offense where he was convicted of both petty theft and receiving stolen property. Ceja was convicted of petty theft and receipt of the same stolen property. On appeal, he argued that he could not be convicted of theft and receiving stolen property he obtained in the theft, and that his conviction for receiving stolen property had to be reversed. The prosecutor conceded that Ceja was erroneously convicted of both crimes, but argued that because receiving stolen property is the greater offense, the court should reverse the petty theft conviction. The appellate court agreed with the prosecutor, and reversed the petty theft conviction. The reasoning of People v. Moran (70) 1 C3d 755, which held that where a person has been convicted of both a greater and lesser included offense, the court must sentence on the greater offense, applies, even though theft is not a lesser included offense of receiving stolen property. [J. McDonald dissented, finding the lesser included offense analogy not persuasive.]
People v. Singleton (10/4/2007, B193159) 155 CA4th 1332: Pursuant to PC 667.5(c)(21), burglary is defined as a violent felony if a person other than defendant is present in the residence during the commission of the offense. To be present, the person must have crossed the threshold or otherwise passed within the outer walls of the apartment/residence being burglarized. Applying rules of statutory construction, the court determined that PC 667.5(c)(1) requires the person to be actually present in the residence and not merely in the vicinity of the residence. Singleton burglarized a third-floor apartment that he had formerly occupied with his roommate Velasquez. Access to the third floor of the apartment building is restricted by a locked gate to the external stairs. While Singleton was inside the apartment burglarizing it, Velasquez was outside the apartment, down the hall, around the corner, but within the locked gate. Under the plain meaning of PC 667.5(c)(21), Velasquez was not “in” the residence. Therefore, the jury finding as to PC 667.5(c)(21) was reversed.
People v. Upsher (10/4/2007, D048845) 155 CA4th 1311: Under the “elements test,” PC 136.1(b) is a necessarily included offense of PC 136.1(c). By jury trial, appellant was convicted of both Penal Code sections 136.1 (b) and (c) [dissuading a witness]. Both subdivisions contain the same elements. Subdivision (c), a felony rather than a “wobbler,” additionally requires that the accused undertakes the acts of dissuasion knowingly and maliciously and that he/she has a prior conviction for any violation of the section. Because a violation of subdivision (c) contains all the elements of (b)(1), the latter is a necessarily included offense and appellant cannot be convicted of both. (People v. Medina (2007) 41 C4th 685.) Accordingly, the conviction was reversed.
People v. Mares (9/27/2007, modified 10/5 and 10/25, E042136) 155 CA4th 1007: A bank withdrawal slip is a “check” for purposes of PC 475(c). Mares went to a bank with a completed withdrawal slip which he used to withdraw $5000. from a car dealership’s bank account. On appeal, he contended that he could not be convicted of possessing a completed check with the intent to defraud because a bank’s withdrawal slip does not fall within the plain meaning of the word “check.” The appellate court rejected the argument, finding that a withdrawal slip is a standard form supplied by the bank which may be used as a “draft.” It does not matter whether a “draft” is in the form of a withdrawal slip or a personal check. Mares’ signature on the bank’s form requesting payment of $5000 was a “completed check” for purposes of the statute.
People v. Linarez (10/5/2007, C052722) 155 CA4th 1393: A defendant can waive his 6th Amendment right to a jury trial on determination of aggravating factors necessary to justify an upper term sentence by entering a tailored Harvey waiver. (People v. Harvey (79) 25 C3d 754.) Appellant pled guilty to assault and admitted a firearm enhancement. In entering his plea, he agreed to a Harvey waiver in which he stipulated that the trial court could consider defendant’s prior criminal history and the entire factual background of the case when imposing sentence. Appellant also acknowledged the court could sentence him to a maximum 14-year term. Referring to the probation report, the trial court found numerous factors in aggravation, including the nature of the offense and appellant’s prior juvenile criminal record. The appellate court found that with this broad Harvey waiver, appellant waived his 6th Amendment right to a jury trial and that the factors recited by the court justified the upper term. Further the court rejected the holding in United States v. Tighe (9th Cir. 2001) 266 F3d 1187, and held that because the constitution permits the juvenile court judge to adjudicate delinquency without a jury trial, there is no constitutional impediment to the use of juvenile adjudications to later enhance a sentence for an adult conviction. (People v. Bowden (2002) 102 CA4th 387.)
People v. Dunkerson (10/10/2007, C052287) 155 CA4th 1413: CALCRIM 3160 (the group beating jury instruction), constitutionally satisfies the requirement of personal infliction of injury. Appellant and three other men assaulted the victim, hitting and kicking him. The victim required stitches to three areas of his head and suffered pain and impaired movement for several months after. The jury was instructed with CALCRIM 3160. Appellant claimed this was error as it allowed the jury to find that the defendant personally inflicted great bodily injury even though he may have only aided others and did not inflict the critical injury himself. Disagreeing, the appellate court noted that the California Supreme Court in People v. Modiri (2006) 39 C4th 481, decided after briefing in the instant case, upheld CALJIC 17.20. Observing that 17.20 is not materially different from CALCRIM 3160, the court here found no denial of due process and affirmed the judgment.
People v. Quiroz (10/10/2007, D047683) 155 CA4th 1420: When a defendant’s participation in a conspiracy begins while defendant is a minor but continues until after the defendant’s 18th birthday, the defendant may be tried as an adult and the trial court is not required to transfer the case to juvenile court. Appellant agreed to sell her bank account and personal information to codefendants. The date she did so was in dispute with appellant claiming it was days before she turned 18 years old. After she turned the information over and after she turned 18, forged checks were deposited in her account and large sums of money withdrawn. At trial, appellant was found guilty of conspiracy and grand theft and granted probation. On appeal, appellant argued that under WI 604(a), the trial court was required to suspend proceedings, examine appellant as to her age, and if it appeared she was a minor when the offense was committed, to certify the matter to juvenile court. Relying on federal authorities, the appellate court determined that because the conspiracy continued after appellant became an adult, she could be tried as an adult (United States v. Thomas (D.C. Cir. 1997) 114 F3d 228), and that there was no sound policy reason for the juvenile court to have presumptive jurisdiction under these circumstances.
People v. Cardenas (10/10/2007, B190463) 155 CA4th 1468: There was no Wheeler error where two Hispanic jurors expressed uncertainty about being able to rely on the interpreter’s translation. During appellant’s trial for second degree robbery, the prosecutor excused two Hispanic prospective jurors because they expressed uncertainty about their ability to put their own Spanish fluency aside and accept the translations of the interpreter. On appeal, appellant contended that the prosecutor exercised group bias in excusing the two jurors. The appellate court rejected the argument. The trial court made a sincere inquiry into the prosecutor’s reasons for challenging the jurors. Substantial evidence supported the trial court’s decision to credit the prosecutor’s race-neutral reasons for excusing the jurors.
The trial court committed prejudicial error when it imposed the upper term sentence based entirely on facts not found by the jury. At appellant’s sentencing hearing, the prosecutor argued for the upper term based on the fact that appellant induced others to participate in the crime, he occupied a position of leadership in its commission, and the offense showed planning and sophistication. They did not mention appellant’s criminal record. The court relied on the planning and sophistication to impose the upper term. While appellant’s prior convictions were included in the probation report, they were neither cited by the prosecutor in his argument nor mentioned by the trial court as an aggravating factor warranting the upper term sentence. Nothing in Black II suggests that the mere fact of a prior conviction mentioned in the probation report but not mentioned by the trial court can justify the imposition of an upper term. The fact that the trial court could have hypothetically imposed the upper term without committing error begs the question whether the court committed error in imposing the upper term the way it did. “We review the trial court’s reasons – we don’t make them up.” Resentencing was required.
People v. Stuedemann (9/21/2007, ordered published 10/15/2007, D049020) 156 CA4th 1: Appellant was not properly convicted of copulation of an unconscious person where the victim was capable of resistance to the conduct. The victim went to appellant for a massage. During the massage, appellant digitally penetrated and began to orally copulate her. When the victim told him to stop, he did so. A jury convicted appellant of rape by a foreign object and oral copulation on an unconscious person. The prosecution’s theory was that the victim was unconscious for purposes of the statute because of appellant’s fraud. (The statute defines unconscious to include where the victim is unaware of the nature of the act because the perpetrator fraudulently represented the sexual act served a professional purpose when it did not.) On appeal, appellant asserted that the evidence was insufficient to support his conviction for those offenses because the evidence showed that the victim was not unconscious within the meaning of those sections. The appellate court agreed and reversed. Although the victim consented to a massage, the result of which made her vulnerable to appellant’s acts overstepping the boundaries of her consent, the evidence showed that she was fully aware of the nature of appellant’s acts, and expressed her nonconsent and resistance. The victim was not rendered unconscious by appellant’s fraud. If there is a “statutory oversight” in the law, the Legislature should address it.
People ex rel. Totten v. Colonia Chiques (10/15/2007, B184772) 156 CA4th 31: Judgment granting permanent injunction against Colonia Chiques, a criminal street gang, applying to a defined area of the City of Oxnard, is reversed to the extent that it requires the enjoined persons to comply with the curfew provision.
People v. Gilbreth (10/15/2007, A112477) 156 CA4th 53: Appellant’s conviction for possession of a firearm by a felon had to be reversed where his prior conviction had been reduced to a misdemeanor. Appellant argued on appeal from his conviction for possession of a firearm by a convicted felon that reversal was required because his predicate felony conviction had been reduced to a misdemeanor upon his successful completion of probation. The appellate court agreed and reversed that conviction. Once a court has reduced a wobbler to a misdemeanor, the crime is thereafter regarded as a misdemeanor for all purposes. This language is unambiguous. At the time appellant was charged in this case, he had a prior misdemeanor conviction for evading an officer, and that conviction could not be considered a felony to serve as the basis for a charge that he violated PC 12021. Once a wobbler has been reduced to a misdemeanor, it is a misdemeanor for all times. (PC 17; Gebremicael v. California Com. on Teacher Credentialing (2004) 118 CA4th 1477; see also People v. Banks (59) 53 C2d 370, 383 387.)
Bradwell v. Superior Court (10/19/2007, C054546) 156 CA4th 265: Conviction for welfare fraud under WI 11483, cannot be used as a qualifying prior theft-related conviction for a charge of petty theft with a prior conviction within the meaning of PC 666. (See Gasaway v. Superior Court (77) 70 CA3d 545 [the more specific statute does not apply to a general theft situation].)
People v. Thomas (10/22/2007, C052849) 156 CA4th 304: CALCRIM 3450 governs sanity verdicts. Part of it says that if the jury concludes that the defendant was legally sane at some times but legally insane at other times, the jury must assume that the defendant was legally sane when committing the crime. The Court of Appeal agrees that, by itself, this is just wrong. But they hold that no reasonable juror could be misled when viewing the instructions as a whole.
People v. Traylor (10/23/2007, C053172) 156 CA4th 339: The magistrate’s dismissal of felony complaint for lack of probable cause under PC 871, bars the filing of a misdemeanor complaint based on same facts. This involved a dismissal of a felony vehicular manslaughter, and the court correctly ruled that the misdemeanor vehicular manslaughter was barred pursuant to PC 1387. (See Burris v. Superior Court (2005) 34 C4th 1012.)
People v. Hertzig (10/24/2007, C053674) 156 CA4th 398: Defendant who was in possession of multiple images of child pornography on one computer could be convicted of only one count of possessing such images under PC 311.11. (See People v. Harrisson (2005) 134 CA4th 637; People v. Woodward (2004) 116 CA4th 821; see also People v. Harris (77) 71 CA3d 959.)
People v. Givan (10/24/2007, F050822) 156 CA4th 405: The extension of an NGI commitment was proper where appellant waived a hearing and the record showed an implicit waiver of the right to a jury trial. After a finding of not guilty by reason of insanity and a commitment to the Department of Mental Health (DMH), Givan waived a hearing on the prosecutor’s request for a two-year extension of treatment, and another two-year term was ordered. On appeal, Givan argued that the trial court erred by allowing him to waive his rights without requiring a personal appearance. He also argued that his waiver was invalid because there was no evidence of his knowledge or waiver of his right to a jury trial. The appellate court rejected both arguments and affirmed. Nothing in the record showed that appellant’s personal appearance on the petition would have changed the outcome, nor is there any requirement in section 1026.5 for a personal appearance. The waiver of the right to a jury trial was implicit since appellant waived a hearing so he could remain at Napa State Hospital and not miss important dates on pending charges in Napa.
People v. Robinson (10/26/2007, C044703) 156 CA4th 508: The statute of limitations for a sex offense is satisfied when the prosecution is commenced within the period of limitations by the filing of an arrest warrant predicated upon the identification of the perpetrator by a DNA profile. The offenses in this case occurred on August 25, 1994. On August 21, 2000, four days before the expiration of the statute of limitations, the prosecutor filed a felony complaint against John Doe, describing him by DNA profile developed by semen taken from the victim. The next day, an arrest warrant issued which incorporated the DNA profile. Three weeks later, Robinson’s name was obtained from a DNA match from the state’s DNA bank, and he was arrested on the warrant. Following his conviction, Robinson contended on appeal that the issuance of a John Doe/DNA arrest warrant failed to toll the statute of limitations, and the use of such a warrant to toll the statutory period violated his right to due process. The appellate court rejected the argument, holding that the arrest warrant which described the person to be arrested by his DNA profile satisfied the statute of limitations. Further, there was no due process violation as Robinson failed to establish the prejudice resulting from the three week delay between the issuance of the warrant and his arrest. Since Robinson’s sole defense was to contest the reliability of the DNA evidence, his ability to defend against the charges was not impaired by the passage of time.
People v. Cole (10/26/2007, D047095) 156 CA4th 452: The trial court erred when it failed to instruct on a good faith belief defense that a broker-dealer license was not required in prosecution for selling securities without such a license. Cole and Robles were convicted of multiple offenses regarding the sale of securities to elderly investors. On appeal, they contended that the convictions for selling securities without a broker-dealer license had to be reversed because on some counts, they did not know these investments were securities. On the remaining counts, they contended that reversal was required because they were not broker-dealers within the statutory definition, and even if they were, there was insufficient evidence. They also challenged instructional errors which reduced the crime to a strict liability offense, deprived them of a mistake of law defense, and eliminated the affirmative defense of a good faith belief that one is exempted from the licensing requirement. The appellate court agreed that the trial court had a sua sponte obligation to instruct the jury that a good faith belief that they were not required to obtain a broker-dealer license was a valid defense to the violations of Corp. Code 25210. On some of the counts, appellants met their burden of producing evidence that supported a reasonable doubt that they had such a good faith belief. Therefore it was error not to instruct on the affirmative good faith belief defense regarding those counts. The error was prejudicial because it was reasonably probable that an outcome more favorable might have been reached had the jury been properly instructed, and therefore reversal was required.
People v. Stevens (10/29/2007, A112197) 156 CA4th 537: The trial court did not err by permitting an armed guard to stand behind appellant while he testified. During appellant’s trial and over his objection, a deputy sheriff sat next to appellant while he testified, in accordance with department policy. On appeal appellant contended that the presence of a sheriff’s deputy while he testified branded him with a “mask of guilt.” The appellate court rejected the argument, distinguishing the presence of an officer from shackling, and holding that there was no evidence that the jurors made any negative inferences about appellant stemming from the presence of a guard. Further, the jurors were instructed to disregard appellant’s custodial status. (J. Ruvolo dissented from this portion of the opinion, finding that it was a denial of due process because it unreasonably created the impression that the defendant was dangerous and untrustworthy.)
The presence of a support person during the victim’s testimony was not error. Appellant also contended that without a showing of necessity, the presence of a victim-support person during the victim’s testimony infringed his right of confrontation. The appellate court found the issue waived for failure to object below, but also rejected the argument. Appellant did not demonstrate prejudice from the use of the support person procedure, or that the absence of a showing of particularized need was fatal to the valid exercise of his confrontation rights. Further, the record supported an implied finding of need because the victim was 16 years old and confronting her father.
Commission on Judicial Performance v. Superior Court (Davidson) (10/29/2007, B201251) 156 CA4th 617: Commission on Judicial Performance records are not subject to a Pitchess motion. Following conviction by jury trial, Davidson moved for a new trial, filing a Pitchess motion in which he sought information from the Commission on Judicial Performance about all complaints filed against Judge Schwartz. Over the Commission’s objection, the trial court denied its motion to quash the subpoena. The Commission petitioned for writ of mandate, and the appellate court issued the writ. The Commission’s nonpublic records are not subject to a Pitchess motion or subpoena duces tecum.
People v. Tena (10/29/2007, B189667) 156 CA4th 598: Defendant did not unequivocally seek to invoke his Faretta rights where his statements and conduct established that his goal was a defense based on witnesses that his attorney would not subpoena, but presented by counsel rather than by himself. Statements made by the court to the defendant advising him that he could invoke his Faretta rights after the preliminary hearing did not conclusively foreclose the option, and the defendant waived his right (see People v. Dunkle (2005) 36 C4th 861, 907-908 [re: waiver]), after the preliminary hearing where he proceeded with retained counsel of his choice. Rejection of the defendant’s self-representation request at the preliminary hearing stage was subject to harmless error review, (Arizona v. Fulminante (91) 499 US 279, 310; People v. Stewart (2004) 33 C4th 425, 462), and the defendant suffered no prejudice as a result of denials of his request.
People v. Saavedra (10/29/2007, D049187) 156 CA4th 561: Defendant was not entitled to an instruction on duress as a defense to a charge of weapons possession by an inmate, where weapon was found in the defendant’s shoe after the officers saw the defendant being attacked, subdued his attackers, and took him for medical treatment. The defendant claimed that he seized the weapon from one of his attackers, but there were no facts showing an express or implied demand by the defendant’s attackers that he seize the weapon. (See People v. Steele (88) 206 CA3d 703, 706 [duress requires that the a threat or menace be accompanied by a direct or implied demand that the defendant commit the criminal act charged].) The court erred, given substantial evidence to support the defendant’s self-defense claim based on a theory that he temporarily seized weapon from attacker because of a fear of immediate harm, in failing to instruct on self-defense, but the error was harmless beyond a reasonable doubt where the jury was instructed on necessity, and the guilty verdict necessarily reflected the juror’s rejection of the defendant’s claims that he only intended to seize weapon temporarily and that he did not intend to conceal it from officers. (See People v. Velasquez (84) 158 CA3d 418, 420-421.)
People v. Cogswell (10/31/2007, D049038) 156 CA4th 698: CCP 1219(b) does not forbid a California court from requesting, pursuant to PC 1334 (Uniform Act), that an out-of-state victim of a sexual assault be taken into immediate custody and delivered to a California state officer to assure the victim’s attendance; it only restricts the power of a court to use incarceration through its contempt power as a means of securing testimony or punishing a contemptuous refusal to testify. Where the victim was an essential witness and the prosecution was on notice that it was highly probable she would not return to California even if ordered by a court to do so, the prosecution did not exercise reasonable diligence under when it failed to request that victim be placed in custody, and the trial court erred in allowing use of her preliminary hearing testimony at trial on basis that she was unavailable. (See EC 240.) Additionally, the court did not abuse its discretion in admitting testimony of the victim of a prior sexual assault by the defendant where the offenses alleged were reasonably similar and no more serious, and defendant was confined to prison for much of the intervening time period. (See People v. Falsetta (99) 21 C4th 903, 911-925; People v. Quintanilla (2005) 132 CA4th 572, 578-579.)
Subsequent History Note: The United States Supreme Court granted certiorari for People v. Quintanilla, sub nom. Quintanilla v. California (2007) ___ US ___ [167 LEd2d 40; 127 SCt 1215]. Judgment was vacated and the case remanded to the Court of Appeal for further consideration in light of Cunningham v. California (2007) 549 US 270 [166 LEd2d 856; 127 SCt 856]. On remand, the Court of Appeal filed an unpublished opinion on July 31, 2007.
People v. Jacobs (10/31/2007, A113633) 156 CA4th 728: The test as to whether the trial court’s denial of a continuance request is an abuse of discretion is not limited solely to situations where the action is whimsical, arbitrary, or capricious, but may also include actions not in conformity with the spirit of the law and, as such, defeats the ends of substantial justice. Following appellant’s conviction at jury trial sentencing was scheduled before the trial judge with all parties, including the judge, expressing a preference that he hear the matter. On the scheduled date for sentencing, however, the trial judge was absent. Although both the prosecution and the defense favored a short continuance to allow the trial judge to impose sentence, the second judge refused, citing the crowded jail as his reason for denying the continuance. He then sentenced appellant to state prison. While a defendant convicted at trial, unlike one who has entered a guilty plea (see People v. Arbuckle (78) 22 C3d 749, 756.), has no right to be sentenced by the trial judge (People v. Downer (62) 57 C2d 800), there is a preference that the trial judge sentence. (People v. Cole (60)177 CA2d 458.) Here, the second judge’s denial of the continuance request did not meet the traditional concept of abuse of discretion, being based on a seemingly legitimate reason. However, under the circumstances of this case, the refusal to grant a continuance was not in conformity with the spirit of the law and, as such, constituted an abuse of discretion. Prejudice was established because “we are unable to say what the position” of the trial judge might have been.
Ninth Circuit Court of Appeal (October 1, 2007-October 31, 2007)
Selected Decisions:
In Parle v. Runnels (10/10/2007, 9th Cir., No. 06-16780) 2007 U.S. App. LEXIS 23734 the state argued that no USSC case has “clearly established” that cumulative error can violate Due Process. However, the Ninth Circuit holds otherwise:
The United States Supreme Court has “clearly established” that multiple non-constitutional errors violate Due Process if their cumulative effect rendered the trial fundamentally unfair.
United States v. Richard (9th Cir. 10/12/2007, No. 06-10377, No. 06-10380) 2007 U.S. App. LEXIS 23930: Replaying only a portion of prosecution witness’s testimony during readback was reversible error.
In Chambers v. Mississippi (1973) 410 US 284, 289, 290 n. 3, 302-303, the “Supreme Court … clearly established that the combined effect of multiple trial court errors violates due process where it renders the resulting criminal trial fundamentally unfair… even where no single error rises to the level of a constitutional violation or would independently warrant reversal.”
The California Supreme Court has long recognized the cumulative error doctrine (see, e.g., People v. Holt (84) 37 C3d 436, 459 and routinely addresses (and rejects on the merits) such claims in its capital opinions. Nationally, however, “the doctrine is inconsistently and rarely applied” in federal habeas cases. (J. Blume & C. Seeds, “Criminal Law: Reliability matters: Reassociating Bagley Materiality, Strickland Prejudice, and Cumulative Harmless Error,” 95 J. Crim. L. & Criminology 1153, 1154 (2005).) The reason for this, the authors believe, is that federal judges understand that applying cumulative error analysis would require them to overturn state judgments with greater frequency than they are comfortable doing. (Ibid.)
Practitioners (as well as the CSC) often cite Taylor v. Kentucky (78) 436 US 478, as holding that cumulative error can violate Due Process. Parle, however, held that Taylor was not really a cumulative error case but rather a case with one error – the failure to instruct on the presumption of innocence — that was prejudicial due to multiple “circumstances” related to the error. (See 448 FSupp.2d at 1163-1164.) This may explain why the Parle opinion relied so heavily on Chambers and buries its one reference to Taylor in a footnote.
Importantly, Parle holds that “multiple trial court errors [can] violate … due process … even where no single error rises to the level of a constitutional violation.” (Emphasis added.) This may be the most important statement in the opinion given how hard it has become to demonstrate a constitutional violation. As the Blume article shows, some courts will apply a cumulative error analysis but only if the petitioner can show that all, or at least one, of the errors whose impact s/he seeks to aggregate was constitutional error.
The beauty of Parle/Chambers is that one need not focus on whether a particular error meets the “clearly established” requirement on its own if, in combination with other errors, it violated Due Process under the concept of cumulative error “clearly established” in Chambers.
Under the reasoning of Parle, Chambers “clearly established” that, in the aggregate, multiple “non-constitutional” improprieties can make one overriding Due Process error.
In light of the foregoing, a claim of cumulative error should always be raised as a stand-alone Due Process claim.
Factors relevant to determining when an error is sufficiently prejudicial that it violates Due Process
In concluding that the cumulative error effect of the errors here violated Due Process, Parle, while phrasing its observations in terms of the effect of multiple errors, relies on factors relevant to other prejudice analyses, including those involving only one error.
First, the court essentially equates “fundamental unfairness” with both the Brecht standard of prejudice and the prejudice standard relied on in Chambers:
“Under traditional due process principles, cumulative error warrants habeas relief only where the errors have ‘so infected the trial with unfairness as to make the resulting conviction a denial of due process.’ Donnelly v. DeChristoforo (74) 416 U.S. 637, 643. Such ‘infection’ occurs where the combined effect of the errors had a ‘substantial and injurious effect or influence on the jury’s verdict’” (quoting Brecht v. Abrahmson (93)507 U.S. 619, 637, and noting the “similarity between [the] Donnelly and Brecht standards”) or ” where the combined effect of individually harmless errors renders a criminal defense ‘far less persuasive than it might [otherwise] have been’” (quoting Chambers v. Mississippi (73) 410 U.S. 284, 294, 302-303).
Second, the prejudice determination is a relative one. The strength or weakness of the prosecution’s case is critical:
In “determining whether the combined effect of multiple errors rendered a criminal defense ‘far less persuasive’ and had a ‘substantial and injurious effect or influence’ on the jury’s verdict” in violation of Due Process (quoting Chambers v. Mississippi and Brecht v. Abrahmson), “the overall strength of the prosecution’s case must be considered because ‘a verdict or conclusion only weakly supported by the record is more likely to have been affected by errors than one with overwhelming record support’” (quoting Strickland v. Washington).
Equally important is the centrality of the issue to which the error pertains:
“As in Chambers [v. Mississippi], the seminal cumulative error case, the errors in [petitioner’s] … trial went to the heart of the defense’s case and the only issue before the jury,” so the errors in combination were prejudicial.
The closeness of the case, similarly, will turn otherwise harmless evidentiary error into a prejudicial Due Process violation:
“Where a trial court commits an evidentiary error, the error is not necessarily rendered harmless by the fact there was other, cumulative evidence properly admitted” – that is, evidence generally relating to the same issue as the improperly admitted or excluded evidence. “See Krulewitch [v. U.S.] (49) 336 U.S. [440] at 444-45] (holding that, in a close case, erroneously admitted evidence-even if cumulative of other evidence-can ‘tip[ ] the scales’ against the defendant); Hawkins [v. U.S.] (54) 358 U.S. [74] at 80 (concluding that erroneously admitted evidence, ‘though in part cumulative,’ may have ‘tip[ped] the scales against petitioner on the close and vital issue of his [state of mind]’).” In Chambers v. Mississippi, similarly, “the erroneously excluded evidence …was also largely cumulative of other evidence properly before the jury, yet the Supreme Court had no difficulty concluding that the combined effect of the trial errors required reversal.”
Application of cumulative error analysis to this case
The Ninth Circuit applies the above-stated principles to reach the following conclusion:
“Because all of the trial court’s errors pertained to evidence relevant to the only issue before the jury – [petitioner’s] … state of mind at the time of the crime – and all of the improperly admitted evidence bolstered the State’s case, while all of the erroneously excluded evidence rendered [petitioner’s] … defense far less persuasive than it might have been, … the … multiple errors … ‘so infected the trial with unfairness as to make the resulting conviction a denial of due process’ [and had] … a ‘substantial and injurious effect or influence’ on the jury’s verdict’ …. That the evidence in question may have been partially cumulative of other properly admitted evidence does not render the errors necessarily harmless because the State’s case establishing [petitioner’s] … premeditation was less than overwhelming, and the jury’s verdict is therefore more likely to have been affected by the trial court’s errors…. The … California Court of Appeal’s contrary conclusion was an objectively unreasonable application of clearly established federal due process law, as set forth in Chambers, Donnelly, and Brecht.”
