CALIFORNIA CASE LAW UPDATE – Selected California Cases
California Supreme Court (November 1-30, 2008)
Goldstein v. Superior Court (11/17/2008, S155944) 45 C4th 218: Discovery – Grand Jury Transcript to Civil Litigant: California courts do not have broad inherent power to order disclosure of grand jury materials to private litigants. The superior court’s powers to disclose are only those the Legislature has deemed appropriate. (Daily Journal Corp. v. Superior Court (1999) 20 C4th 1117, 1128 [disclosures to the public governed by statute].)
People v. Mentch (11/24/2008, S148204) 45 C4th 274: Primary Caregiver for the Medical Marijuana Defense: The primary caregiver defense is reserved only for a person who can prove he or she consistently provided care, independent of assistance in taking medical marijuana, at or before the time he or she assumed responsibility for assisting with medical marijuana. Growing and supplying the drug for legitimate patients, even combined with sporadic care giving, is insufficient. The statutory definition has two parts: (1) the person is designated by the patient (designation clause); and (2) the person has consistently been responsible for the patient’s housing, health or safety (responsibility clause). (HS 11362.5(e).) The language of the responsibility clause implies a relationship established at or before the onset of marijuana administration that is directed at the basic survival needs of a seriously ill person, not just his pharmaceutical needs. “The possession or cultivation of marijuana for medical purposes cannot serve as the basis for making lawful the possession or cultivation of marijuana for medical purposes; to conclude otherwise would rest the primary caregiver defense on an entirely circular footing.”
Grants Of Review:
Catlin v. Superior Court REV GTD (11/19/2008, S167148) 166 CA4th 133: Must a motion under PC 1054.9, which authorizes prisoners under sentence of death or life without the possibility of parole to bring post-conviction discovery motions, be brought within a reasonable time period?
People v. Johnson REV GTD (11/19/2008, S166894) 2008 Cal. App. Unpub. LEXIS 6554: Is a certificate of probable cause a prerequisite to an appeal claiming ineffective assistance of counsel for failure to assist a client in a motion to withdraw a plea?
People v. Perez REV GTD (11/19/2008, S167051) 2008 Cal. App. Unpub. LEXIS 6738: Were defendant’s convictions for attempted murder of seven police officers and a civilian supported by sufficient evidence when only one shot was fired and only one officer was hit?
People v. Martinez REV GTD (11/19/2008, S166970) 2008 Cal. App. Unpub. LEXIS 7194: Briefing deferred pending decision in People v. Chun REV GTD (12/19/2007, S157601) 155 CA4th 170, which includes the following issue: Does the offense of discharging a firearm at an occupied vehicle in violation of PC 246 merge with a resulting homicide under People v. Ireland (69) 70 C2d 522, if there is no admissible evidence of an independent and collateral criminal purpose other than to commit an assault?
California Courts of Appeal (November 1-30, 2008)
Selected Decisions:
People v. Smith (11/5/2008, D051448) 168 CA4th 7: Jury Instructions – Direct and Circumstantial Evidence Preinstruction: No violation of defendant’s rights to due process and fair trial by preinstructing jury on definitions of direct and circumstantial evidence under CALCRIM No. 223, without also preinstructing on the method of assessing the sufficiency of the circumstantial evidence under CALCRIM 224, where these instructions are fully and correctly given along with the presumption of innocence and the prosecution’s burden of proof at the close of evidence and before deliberations.
People v. Arias (11/6/2008, S155571) 45 C4th 169: Drugs – Definition of False Compartment: Definition of false compartment in HS 11366.8(a) does not include the vehicle’s original factory equipment that has not been modified or altered. “It would be unreasonable to interpret the phrase ‘intended for use or designed for use to conceal, hide, or otherwise prevent discovery of any controlled substance within or attached to a vehicle’ in the above definition of false compartment to mean ‘intended [by the vehicle’s manufacturer] for use or designed [by the vehicle’s manufacturer] for use to conceal, hide, or otherwise prevent discovery of any controlled substance within or attached to a vehicle.’”
People v. Ramirez (11/6/2008, F053454) 168 CA4th 65: Specific Versus General: Prosecution under a general statute is barred where there’s a specific statute covering the same area. (People v. Jenkins (80) 28 C3d 494, 503.) However, when the defendant was charged with AFDC fraud under WI 11483 and was also charged with committing perjury under PC 118, the legislative intent established that the prosecution can be permitted under both sections.
People v Anderson (10/15/200, pub’d 11/10/2008, H031106)168 CA4th 135: People v. Hofsheier (2006) 37 C4th 1185 held that mandatory PC 290 sex registration for consensual oral copulation of a minor violated equal protection, because no comparable registration was required for consensual sexual intercourse with a minor. Anderson refused to extend Hofsheier to PC 288(c)(1), lewd acts on a child 14 or 15 years old.
People v. Garcia (11/14/2008, D049650) 168 CA4th 261: Evidence of defendant’s resistance to arrest, like evidence of flight, is admissible as evidence of consciousness of guilt. (People v. Odle (88) 45 C3d 386, 403.) Fact that his standoff may have been related to another murder does not mean it cannot be introduced. Ambiguities or explanations tending to rebut an inference of guilt do not render flight evidence inadmissible but are part of the defense. Additionally, requiring the state to prove which crime caused a defendant to flee would place an impossible burden upon it.
People v. Garcia (11/14/2008, D049650) 168 CA4th 261: Note threatening witnesses and families written by third party was relevant for nonhearsay purpose of showing why witnesses were afraid to testify. (People v. Olguin (94) 31 CApp.4th 1355, 1368.) Rule of People v. Williams (97) 16 C4th 153, 200-201 that evidence of a third-party attempt to suppress evidence is inadmissible against a defendant when the attempt did not occur in the defendant’s presence and the defendant did not authorize the attempt did not apply because there was evidence defendant authorized the threat. Second note may have contained implied hearsay, but it did not violate the Sixth Amendment because it was nontestimonial under Davis v. Washington (2006) 547 US 813.
People v. Garcia (11/14/2008, D049650) 168 CA4th 261: Though mere presence or the failure to take action to prevent a crime is not enough to constitute aiding and abetting, here there was sufficient evidence that group of gang members, of which defendant was part, intended to avenge beating of co-defendant who became shooter. Factors to be considered by the trier of fact in determining “whether one is an aider and abettor include presence at the scene of the crime, failure to take steps to attempt to prevent the commission of the crime, companionship, flight, and conduct before and after the crime.” (People v. Jones (80) 108 CA3d 9, 15.)
People v. Garcia (11/14/2008, D049650) 168 CA4th 261: “A defendant’s conduct after a crime, including flight, is a relevant factor in determining his liability as an aider and abettor of the crime.” Here the evidence showed that appellant fled from the scene in the same car with the shooter, took the gun from the shooter while they were in the car, fled with the gun when police tried to stop their car, and and ultimately disposed of the gun. Evidence of gang affiliation can be relevant in establishing motive and intent to aid and abet, regardless of whether the principal’s intent to commit the alleged crime was gang related or personal. Although there is a preference for joint trials, the court may order separate trials for defendants if there is a incriminating confession by one defendant which implicates another. (People v. Aranda (65) 63 C2d 518; Bruton v. United States (68) 391 US 123.) But, even in this instance, a joint trial may be held if the confession is sanitized. In a footnote, the court observed that whether the Aranda/Bruton rule addressing whether an out-of-court statement by a codefendant which incriminates the defendant applies only to extrajudicial testimonial statements appears to be an unsettled question, but that the federal Third Circuit Court of Appeals has interpreted Bruton expansively. (U.S. v. Mussare (3rd Cir. 2005) 405 F.3d 161.) The court in the instant case declined to address the issue.
People v. Hsu (11/18/2008, A120768) 168 CA4th 397: A determination as to whether a Sixth Amendment right to speedy trial has been violated is fact intensive, and the conduct of both the prosecution and the defendant is relevant. Analysis of a claimed federal speedy trial violation considers (a) the length of the delay; (b) whether the government or defendant is more responsible for the delay; (c) whether defendant asserted his right to a speedy trial; (d) and whether defendant suffered prejudice. (Doggett v. United States (92) 505 US 647; Barker v. Wingo (72) 407 US 514.)
People v. Belton (11/18/2008, C055046) 168 CA4th 432: For purposes of PC 273.5(a), the cohabitation element is interpreted broadly, but there still must be proof that the relationship has some permanency. The relationship must be more than a “platonic, rooming-house arrangement. (People v. Holifield (88) 205 CA3d 993, 999.)
People v. Belton (11/18/2008, C055046) 168 CA4th 432: Misconduct – Prosecutorial – Disparaging Defense Counsel: Court holds that prosecutor did not disparage defense counsel and therefore commit misconduct by calling counsel “a very professional, skilled attorney” who would have presented a defense if there had been one to present. While it is improper to accuse defense counsel of fabricating a defense or to imply that counsel is deceiving the jury (People v. Bemore (2000) 22 C4th 809, 846), here “the prosecutor merely alluded to the reality defense attorneys face when their client’s case is weak.” In addition, there was no likelihood of prejudice. (See People v. Fierro (91) 1 C4th 173, 213.)
People v. McFearson (11/18/2008, F051882) 168 CA4th 388: A PC 667.5(b) prior prison term enhancement is based on the fact of a prior conviction, rather than a prior prison term, and can be used to aggravate the sentence on the underlying felony only when the court strikes the punishment for the enhancement.
People v. Castillo (11/18/2008, G038013) 168 CA4th 364: For statute of limitations purposes, a felony prosecution commences with the filing of the information or indictment, and the legal issue as to the timing of the commencement of the prosecution is an issue for the court, and not a factual issue for the jury.
People v. Castillo (11/18/2008, G038013) 168 CA4th 364: Prosecutorial Misconduct During Voir Dire: During voir dire, the DA told the prospective jurors some stories about other rape trials that the DA handled, and things the jurors in those cases told him. This was misconduct.
People v. Conners (11/19/2008, B196516) 168 CA4th 443 [Modified by People v. Conners (12/8/2008) 2008 Cal. App. LEXIS 2385]: Where the trial court requests a probation report pursuant to PC 1203.01, it may not pronounce judgment unless the report has been completed and the parties have received copies of it.
People v. Mosley (11/19/2008, G038379) 168 CA4th 512: Because the residency restriction in Proposition 83 increases the penalty for the underlying offense beyond the statutory maximum, the facts supporting discretionary sex offender registration must be found by a jury beyond a reasonable doubt.
People v. Davis & Munoz (11/20/2008, C051803, C051963) 168 CA4th 617: The corpus delicti rule used to bar admission of a confession absent independent evidence that a crime occurred. The California Supreme Court held that this aspect of the corpus rule was abrogated by Prop. 8. (People v. Alvarez (2002) 27 C4th 1161.) What’s left is a rule of sufficiency: a conviction is insufficient as a matter of law if it’s based solely on a confession without independent evidence that a crime occurred. There is some law supporting the conclusion that the corpus rule applies to uncharged crimes. (See, e.g., People v. Robertson (82) 33 C3d 21; People v. Williams (88) 44 C3d 883.) There’s some law to the contrary, and Davis agreed with that law. It holds that a confession without a corpus is admissible to prove an uncharged crime.
People v. Genovese (11/24/2008, C055486) 168 CA4th 817: Imperfect defense of others reduces a murder to a voluntary manslaughter. (See People v. Randle (2005) 35 C4th 987.) The defendant in Genovese complained that CALCRIM 572 did not tell the jury that imperfect defense of others eliminates malice. The court rejected this claim, saying that the instruction, taken as a whole, makes this clear, and that there is no magic to actually using the term “malice” in the instruction itself.
People v. Zavala (11/24/2008, F051843)168 CA4th 772: Collateral Estoppel – Effect of Acquittal on Different Charge: Acquittal of charge of sexual penetration by foreign object in first trial did not bar subsequent conviction for torture.
People v. Zavala (11/24/2008, F051843)168 CA4th 772: Hearsay – Adoptive Admissions: Since adoptive admissions are in effect the defendant’s own admissions, no concerns arise about the credibility or veracity of the original declarant, so no violation of the confrontation clause arises from the admission into evidence of the statements at issue. (People v. Roldan (2005) 35 C4th 646, 711, fn. 25, citing Crawford v. Washington (2004) 541 US 36.) With reference to his ineffective assistance of counsel argument, since the law neither does nor requires idle acts, Zavala’s attorney did not render ineffective assistance of counsel by declining to make a futile confrontation clause objection to the admission of those statements. (See CC 3532; People v. Anderson (2001) 25 C4th 543, 587.)
People v. Zavala (11/24/2008, F051843)168 CA4th 772: The rule of collateral estoppel does not apply when a rational jury could have grounded its verdict upon an issue other than that which the defendant seeks forclosure from consideration.
People v. Morelos (11/24/2008, F052418) 168 CA4th 758: (1) Unless a defendant receives multiple items of stolen property at a single time, multiple convictions of stolen property are permissible. If the evidence shows stolen goods from different sources are received on a single occasion, then there is only one offense of receiving stolen property. (People v. Lyons (80) 50 C2d 245.) But where there is evidence from which the jury can infer the stolen property was not received at the same time, this rule does not apply. (People v. Bullwinkle (80) 105 CA3d 82.) (2) Possession of multiple blank checks constitutes a single violation of PC 475(b). The 16 blank check counts involved 6 victims. Appellants argued that all but one of the convictions had to be stricken, while respondent contended that there should be six convictions, one for each victim. Relying on People v. Bowie (77) 72 CA3d 143, and People v. Carter (77) 75 CA3d 865, the court held all but one of the blank check counts had to be reversed because possession of multiple checks was deemed a single act, even though there were six different victims. On the other hand, because PC 476, the altered checks statute, criminalizes conduct in the disjunctive, all of the altered check convictions were proper.
People v. Lopez et al. (11/24/2008, F053389) 168 CA4th 801: (1) To obtain relief for a conflict of interest, appellant must show either (1) an actual conflict which adversely affected trial counsel’s performance, or (2) informed speculation with a factual basis in the appellate record regarding a potential conflict that adversely affected counsel’s performance. (2) A mid-trial Marsden motion is timely, unless it belatedly challenges a pretrial ruling and amounts to a disruption of the orderly process of justice.
People v. Kimbell (11/25/2008, B202422) 168 CA4th 904: After inadvertently discharging the jury, if the jury verdict is irregular or incomplete, the court retains jurisdiction to reconvene the jury if the jury has not yet left the court’s control.
People v. Galvan (11/25/2008, E042254) 168 CA4th 846: The enhancement under PC 12022.7(b) for great bodily injury causing the victim to become comatose does not require the coma be permanent.
People v. Rodriguez (11/26/2008, A114910) 168 CA4th 972: (1) A defendant may not be convicted on the basis of uncorroborated accomplice testimony, and whether a person is an accomplice is a question of fact for the jury unless there is no dispute as to either the facts or the inferences drawn therefrom. (2) When the defense requests an instruction on the general principal of accomplice liability that is legally correct and supported by the evidence, the court must give the instruction. In this case, because there was sufficient evidence to submit to the jury the question as to whether the three witnesses were accomplices under the natural and probable consequences doctrine and because appellant requested an instruction, the court erred in denying the request. However, because the record otherwise contained sufficient evidence corroborating the testimony of the three identifying appellant as the shooter, the error was harmless.
People v. Morales (11/26/2008, A117659) 168 CA4th 1075: (1) PC 246 which prohibits shooting at an inhabited dwelling defines inhabited dwelling to include the attached garage. Appellant went to the victim’s home, entered the attached garage, and shot through the door connecting the garage to the kitchen. Analyzing the language of PC 246, “inhabited dwelling house,” the appellate court noted that it had the same meaning as it has in the section defining first degree burglary. (People v. Adams (82) 137 CA3d 346.) (2) PC 273a does not require that a defendant be related to a child, only that he was willing to assume the role of a caregiver. Here, 16 year-old K. testified that appellant asked her to go with him to direct him to the house of a friend. As the two were driving to the friend’s house, a police officer attempted to stop appellant after noticing that the tags on his vehicle were expired. Rather than complying, appellant sped up, ran a red light, and then lost control of his vehicle and hit a telephone pole and metal post. The appellate court affirmed the conviction for PC 273a(a), noting that K. was physically in the care of appellant when he endangered her life by his reckless driving. The jury reasonably could conclude that when appellant took it upon himself to control her environment and safety, he assumed caregiving responsibilities or her custody when she was in the car. (3) Failure to object to the court’s failure to give reasons for consecutive sentences results in waiver for direct appeal purposes. Although a court errs when it fails to state its reasons for imposing consecutive sentences, complaints as to the court’s abuse of discretion cannot be raised for the first time on appeal. (People v. Scott (94) 9 C4th 331.)
U.S. Supreme Court
Kelly v. California CERT DENIED (11/10/2008, No. 07-11073) ____ US ____ [172 LEd2d 445; 129 SCt 564]: Victim Impact Evidence; Videotape Tributes to the Victim: The United States Supreme Court denied cert. on two cases out of California, both of which upheld use of dramatic videotape tributes to the homicide victims. (People v. Kelly (2007) 42 C4th 763; People v. Zamudio (2008) 43 C4th 327). Three justices write statements essentially indicating that they would grant certiorari to determine what the restrictions are on this sort of victim impact evidence. You can watch the actual video in Kelly at: http://www.scotusblog.com/wp/wp-con…/kellyvideo.mpg
9th Circuit
Humphries v. County of Los Angeles (11/5/2008, 9th Cir. No. 05-56467) 547 F3d 1117: PC 11170 (a)(2), the California law establishing an index of suspected child abusers, violates the due process clause of the 14th Amendment as it does not provide identified individuals a fair opportunity to challenge the allegations.
United States v. Williams (11/6/2008 9th Cir., No. 06-50599) 547 F3d 1187: “To establish entrapment as a matter of law, a defendant must point to undisputed evidence making it patently clear that an otherwise innocent person was induced to commit the illegal act by trickery, persuasion, or fraud of a government agent,” quoting United States v. Smith (9th Cir. 1986) 802 F2d 1119, 1124. It is a subjective inquiry. The defense fails if the defendant is predisposed to commit the crime. Five factors to be considered are : “(1) the character or reputation of the defendant, including any prior criminal record; (2) whether the government initially made the suggestion of criminal activity; (3) whether the defendant engaged in the criminal activity for profit; (4) whether the defendant evidenced reluctance to commit the offense that was overcome by repeated government inducement or persuasion; and (5) the nature of the inducement or persuasion supplied by the government.” (Smith, supra, 802 F.2d at 1124-1125.)
United States v. Williams (11/6/2008 9th Cir., No. 06-50599) 547 F3d 1187: Judge erred prejudicially by instructing the jury to continue deliberating after a juror disclosed that she was the lone holdout. Even though the judge said she was not giving an Allen charge, in effect she did. An Allen charge “is the generic name for a class of supplemental jury instructions given when jurors are apparently deadlocked.” (United States v. Mason (9th Cir. 1981) 658 F2d 1263, 1265 n. 1.) Allen charges are allowed except where it’s clear the charge had an impermissibly coercive effect on the jury. But “[w]hen a juror clearly discloses to the district court that she disagrees with the rest of the jury and … cannot return a different verdict, … the district court cannot give a supplemental instruction instructing the jury to continue deliberating.”
United States v. Williams (11/6/2008 9th Cir., No. 06-50599) 547 F3d 1187: Outrageous government conduct is not actually a defense, but a claim that government conduct in securing an indictment was so shocking to due process values that the indictment must be dismissed. (United States v. Holler (9th Cir. 2005) 411 F3d 1061, 1065.) It is a high standard, but it is met when the government engineers and directs a criminal enterprise from start to finish, but it is not met when the government merely infiltrates an existing organization, approaches persons it believes are already engaged in or planning a conspiracy, or provides valuable and necessary items to the venture. There are five factors that must be satisfied to find the conduct acceptable: “(1) the defendant was already involved in a continuing series of similar crimes, or the charged criminal enterprise was already in process at the time the government agent became involved; (2) the agent’s participation was not necessary to enable the defendants to continue the criminal activity; (3) the agent used artifice and stratagem to ferret out criminal activity; (4) the agent infiltrated a criminal organization; and (5) the agent approached persons already contemplating or engaged in criminal activity.” (United States v. Bonanno (9th Cir. 1988) 852 F2d 434, 437-438.) All five were met here.
U.S. v. Nevils (11/20/2008, 9th Cir., No. 06-50485) 548 F3d 802: The evidence was insufficient to show that a sleeping defendant was a knowing possessor of a weapon.
